20-004079PL Department Of Health, Board Of Medicine vs. Saeed Akhatar Khan, M.D. Status: Closed Recommended Order on Monday, March 1, 2021.

Summary: Respondent, a physician, did not engage in sexual misconduct as defined and prohibited by F.S. 456.063 because the alleged victim was not a patient at the time of the sexual assault.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

M EDICINE ,

Petitioner ,

vs. Case No. 20 - 4079PL

S AEED A KHATAR K HAN , M.D. ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge Mary Li Creasy by Zoom conference on

November 2 through 4, 2020.

A PPEARANCES

For Petitioner: Amanda M. Godbey, Esquire

Ryan Sandy, Assistant General Counsel

John A. Wilson, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, C - 65

Tallahassee, Florida 32399

Louise Wilhite - St . Laurent , General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

For Respondent: Robert N. Nicholson, Esquire

Nicholson & Eastin, LLP

707 Northeast Third Avenue, Suite 301

Fort Lauderdale, Florida 33304

Edward Donald Reagan, Esquire

Edward D. Reagan, P.A.

658 W est Indiantown Road, Suite 209

Jupiter , Florida 33458

S TATEMENT OF T HE I SSUE S

Whether Respondent engaged in sexual misconduct in the practice of a

healthcare profession, as defined in section 456.063(1), Florida Statutes

(2019), and/or Florida Administrative Code Rule 64B8 - 9.008 (2019) , with T.B.

on or about February 25, 2020; and , if so, what discipline should be imposed.

P RELIMINARY S TATEMENT

On July 31, 2020, the Department of Hea lth (Petitioner or Department),

issued an Administrative Complaint (Complaint) against Saeed Akhtar

Khan, M.D. (Respondent). The Complaint charged Respondent with violating

section 458.331(1)(nn), Florida Statutes (2019), by engaging in sexual

misconduct w ith a patient in violation of section 456.072(1)(v) , and/or

r ule 64B8 - 9.008. Respondent disputed material facts alleged in the

Complaint and requested an administrative hearing.

The case was forwarded to the Division of Administrative Hearings

(DOAH) and a final hearing was held as scheduled on November 2 through 4,

2020 . Prior to the final hearing, the parties filed a Joint Pre - Hearing

Stipulation, in which they stipulated to certain facts. To the extent relevant,

the partiesÔ stipulated facts have been incorporated in the findings below .

At the hearing, Petitioner presented the testimony of T.B., the accuser in

this case. Petitioner also presented the testimony of Okeechobee County

SheriffÔs Office Detective J. Gonzalez; former patient M.T. ; 1 and Gatewa y

1 Responden t objected to the admission of the testimony of former patient M.T. as immaterial

and not permitted by sections 90.404 and 90.403, Florida Rules of Evidence. RespondentÔs

objections were overruled, and the testimony was received. However, M.T.Ôs testimony was

Medical Group (Gateway Medical) employees Amanda Curtis and Shannon

Lawrence. PetitionerÔs Exhibits 1 through 8 were admitted into evidence.

Respondent presented the testimony of Gateway Medical employees

Amanda Curtis, Shannon Lawrence, Miranda Chandle r, Kristina Chapman,

and Kora Chapman. Respondent also presented the testimony of Department

of Health Investigator Kath l een Healy - Baez and Dr. Leland Heller.

Respondent did not testify. RespondentÔs Exhibits 1, 2, 4 through 8,

9 (excluding pages 1 and 2), 10, 12 through 1 4, 16 through 20, 23, 24, and 30

were admitted into evidence.

The five - volume final hearing T ranscript was filed on December 14, 2020.

Respondent requested, and was granted, an extension of time for the parties

to file proposed recommende d orders. Both parties timely filed proposed

recommended orders, which were considered in the drafting of this

Recommended Order. Unless otherwise indicated, citations to the Florida

Statutes refer to the version in effect during the time that the violatio n was

allegedly committed.

F INDINGS OF F ACT

The Parties

1. Petitioner is the state agency charged with regulating the practice of

medicine pursuant to section 20.43, and c hapter s 456 and 458 , Florida

Statutes .

2. At all times material to this proceeding, Respondent was a licensed

medical doctor in the State of Florida, having been issued license number

ME77602. RespondentÔs address of record with the Department is 2257

Highway 441 North, Suite A, Okeechobee, Florida 34972 .

not ultimately deemed relevant or material to the resolution of the fact s in dispute in this

matter.

3. At all times material to this Order, Respondent owned and operated

Saeed Khan, P.A., a medical practice within the Gateway Medical. Gateway

Medical is comprised of ten professional associations which include a

professional association owned by Tahir Naeem, M.D. (Dr. Naeem).

The Relatio nship Between Respondent and T.B

4. O n February 25, 2020, T.B., a long - time patient of RespondentÔs

medical practice, presented to Respondent at his office, where Respondent

engaged T.B. in sexual activity.

5. T.B. had been RespondentÔs patient since first seeing him as her

primary care physician in 2005, and T.B. remained RespondentÔs patient for

Ñapproximately 13 or 14 years.Ò T.B. ceased her patient - physician

relationship with Respondent in April 2019.

6. T.B. is a medically complex patient and over the course of their 14 - year

relationship, Respondent treated her for numerous medi c al issues including,

but not limited to the following: Chiari 1 malformation, Graves' disease,

hyperthyroidism, fibromyalgia, post - traumatic stress disorder, attention -

deficit / h yperactive disorder, breast calcifications, depression, anxiety, and

failed neck surgery fusion .

7. However, although their relationship was friendly, T.B. and

RespondentÔs ÑfriendshipÒ remained within the confines of the physician -

patient relationship. In the 14 years that Respondent treated T.B., the two

never socialized outside of RespondentÔs medical office and the majority of

their conversations revolved around T.B. seeking advice about her various

medical issues. T.B. occasionally texted Respondent to seek medical advice for

her health concerns, to request referrals to specialists, and to schedule

medical appointments with Respondent.

8. Over the course of their professional relationship, T.B. often discussed

sensitive and personal subjects with Respon dent, including her marital strife.

Conversations of this personal nature were important and pertinent

components of T.B.Ôs medical care, especially since she was being treated for

depression and anxiety.

9. T.B. sent text messages to a friend in March 201 9 that she personally

disliked Respondent and no longer wanted him as her physician. T.B. texted

her friend on March 29, 2019, that she doesnÔt Ñlike Khan anymore,Ò that

Respondent Ñmakes her feel stupid,Ò and that Ñhe sucks.Ò T.B. later texted the

same fr iend that ÑI hate my primaryÒ (referring to Respondent), and ÑI

freakinÔ hate Khan and will dump his ass as soon as I get through all this.Ò

10. In April 2019, Respondent and T.B. had a disagreement over T.B.Ôs

medical care. On April 12, 2019, T.B. reporte d to Respondent that she was

concerned about her thyroid. RespondentÔs office mistakenly ordered a

gallbladder test instead of a thyroid diagnostic test for T.B.

11. T.B. was irate with Respondent for not realizing what she perceived to

be a grievous erro r . T.B. vented about her frustration with Respondent with

Brenda Adams (Ms. Adams), a family friend and Gateway Medical employee.

T.B. informed members of RespondentÔs staff that she was leaving the

practice and would be seeking care with another physician .

12. T.B. thereafter transferred her medical care from Respondent to

another primary care physician with Gateway Medical , Dr. Naeem, in

April 2019. T.B. treated with Dr. Naeem on two occasions between April and

June 2019.

13. T.B. subsequently transferred her care from Dr. Naeem to another

primary care physician, Dr. Leland Heller, beginning in June 2019.

14. At the time of T.B terminating her care with Respondent,

RespondentÔs office did not send a letter notifying T.B that she was no longer

a patient nor was this documented in T.B.Ôs medical records. However, the

evidence is clear and convincing that neither T.B. nor Respondent considered

her a patient of his practice after April 2019.

15. It is RespondentÔs standard policy and practice not to readmit a

p atient once they have left the practice. T o be readmitted to the practice,

Respondent has to personally approve the readmission . T.B. was never

readmitted to RespondentÔs practice.

16. T.B. had no contact with Respondent between April 16, 2019, and

Septemb er 2019 . During that time, T.B. had medical appointments with

Dr. Naeem and four with Dr. Heller. By September 2019, T.B. was

overwhelmed and frustrated with the medical care she received from the

other physicians. She had also come to the realization that the error that

RespondentÔs office had made in April 2019 was less egregious than she

initially believed .

17. On September 12, 2019, T.B. contacted Respondent by Facebook

instant message and requested a meeting with him Ñto clear the airÒ

regarding the ci rcumstances of her departure from the practice, and to Ñsee if

IÔm still your patient.Ò Respondent did not respond to T.B.Ôs Facebook

message.

18. T.B. contacted Respondent again on September 23, 2019, this time by

text message to his personal cell phone , stating that she felt Ñthey have left

off on the wrong foot in our last conversation,Ò and asking whether

Respondent would be willing to ÑmeetÒ with her. T.B. acknowledged in her

text message that she was not supposed to be contacting Respondent on his

pe rsonal cell phone. Respondent agreed to meet T.B. at his office the next

day.

19. On September 24, 2019, T.B. met with Respondent in RespondentÔs

personal office and discussed her thyroid issues, the treatment recommended

by her endocrinologist, and her pe nding separation from her husband.

20. At the meeting, T.B. requested to return to the practice as a patient,

and Respondent replied that ÑI think it might be better if we remain friends.Ò

21. RespondentÔs refusal to take T.B. back as a patient was docume nted

by T.B. in text messages with a friend. T.B. texted with a friend on

September 24, 2019, regarding her meeting with Respondent, stating in the

text message , ÑJust finished. Everything went well. He wonÔt take me back as

a patient, which is probably be st.Ò When asked by her friend why not, T.B.

replied, ÑHe just says IÔd always have a doubt about the care bc I felt he

missed the thyroid thing . Ò

22. T.B. was not reestablished as a patient in the medical records system

of RespondentÔs practice on Septemb er 24, 2019, and an appointment that

had been placed in the calendar of the practice was listed as Ñcancelled.Ò T.B.

did not seek further medical care from Respondent.

The Events Giving Rise to This Disciplinary Action

23. T.B. and Respondent had no contac t with each other between

September 24, 2019, and February 2020 .

24. T.B. suffered with a pinched nerve in her spinal cord that caused pain

and numbness down her right arm and shoulder. T.B. attempted to alleviate

this issue with an anterior cervical decom pression fusion (ACDF) surgery in

2018; however, the surgery was unsuccessful and T.B. was suffering from

the same symptoms . T.B. scheduled a second ACDF surgery to occur on

March 12, 2020. The scheduled surgery was different from her first, and T.B.

was a nxious about the decision of whether to go through with the surgery.

25. On February 19, 2020, T.B. posted on Facebook that she was going to

have a 75 - minute MRI done at the University of Miami Health System. On

the same day, Respondent commented under tha t post , ÑGood Luck , Ò and sent

T.B. a private Facebook message that stated, ÑGood Luck Thinking of you. I

am always available as a sounding board.Ò T.B. responded to RespondentÔs

message stating, ÑThank you! IÔd love to come in and run it all by you. Just l et

me know when. Failed fusion and scar tissue hitting a nerve the doctor

believesÈ . Ò T.B. was aware that Respondent had previously undergone the

same surgery.

26. On February 24, 2020, T.B. was served with divorce papers. Following

receipt of her divorce papers, T.B. initiated contact with Respondent on

February 25, 2020, and asked to meet with him that day. Respondent replied

asking if she was OK, and T.B. responded, ÑNot really. Having the surgery

redone. And was served with divorce papers yesterday and lost my job

because of disability. Wanted your Óolder and wi s er advice.ÔÒ

27. They agreed to meet that same day. T.B. went to RespondentÔs office

and met with Respondent at approximately 4:00 p.m. RespondentÔs staff

directed T.B. to meet Respondent in his private medical office. When she

arrived, the receptionist told her that she did not need to sign in, and T.B. did

not sign in as a patient. When asked by the receptionist why she was coming

to the office that day, T.B. responded that she was not there as a patient, but

to meet with Dr. Khan.

28. Respondent did not medically examine T.B. on February 25, 2020.

Significantly, T.B did not have her vital signs taken by a nurse or medical

assistant . T.B. did not complete any new or existing patient paperwork .

Re spondent did not render a diagnosis on February 25, 2020, nor did

Respondent render any treatment or prescribe T.B. any medication, nor did

he make any referrals for medical care . T.B. did not bring any medical

records with her to the February 25, 2020, me eting, and Respondent did not

review any medical records during the meeting.

29. T.B. met with Respondent in his personal office space at the practice

rather than an examination room. Upon T.B.Ôs arrival, Respondent dismissed

his staff and closed the door to the office, leaving him alone with T.B.

30. After discussing T.B.Ôs impending divorce, Respondent approached

T.B. and asked her to scratch his back, to which T.B. complied. Respondent

then placed his hands on T.B.Ôs and then began to massage her shoulde rs .

T.B. attempted to leave the office by feigning an excuse to leave, however,

Respondent blocked her exit, pulled down her blouse, placed his mouth on her

breast, and sucked on her nipple. Respondent then pulled down the other side

of T.B.Ôs blouse, plac ed his mouth on her other breast, and sucked on her

nipple. As T.B. broke away and exited the practice, Respondent told her that

they would be sleeping together in the future.

Subsequent Law Enforcement Investigation

31. T.B. did not initiate a complaint against Respondent with law

enforcement immediately after the incident because she underwent neck

surgery on March 12, 2020. The recovery for that surgery involved 12 weeks

in a neck brace and a difficult and painful recovery . As soon as T.B.

recovered, sh e immediately reported RespondentÔs conduct to law

enforcement, initiating an investigation, which resulted in RespondentÔs

arrest. T.B. also hired a civil attorney to initiate a civil claim against

Respondent.

32. Respondent did not testify at hearing and asserted his Fifth

Amendment privilege against self - incrimination in his deposition .

Accordingly, T.B.Ôs testimony regarding the heinous sexual assault of

February 25, 2020, is credited.

33. However, RespondentÔs actions of February 25, 2020, as described by

T.B. , did not re - establish the physician - patient relationship. The meeting

between T.B. and Respondent on February 25, 2020, was that of two

acquaintances. It was not intended by either of them as a physician - patient

encounter .

34. During her final hea ring testimony, T.B. claimed that during the

February 25, 2020, meeting , she and Respondent discussed her upcoming

surgery. However, this testimony is inconsistent with T.B.Ôs prior sworn

testimony and prior sworn statements in this matter. It is also inco nsistent

with T.B.Ôs narrative description of the meeting with Respondent in this

matter. Her testimony in this regard is , therefore , deemed not credible.

35. During T.B.Ôs discovery deposition in this case, T.B. specifically denied

that she discussed her impending surgery with Respondent during the

February 25, 2020, meeting. Additionally, in T.B.Ôs prior sworn written

statement to Deputy Reno of the Okeechobee County SheriffÔs Office, she

made no mention of discussing her upcoming surgery with Respondent prior

to the physical contact between Respondent and her. Instead, her narrative of

the event was that she and Respondent only discussed her impending divorce

and marital assets prior to Respondent asking her to scratch his back.

36. This version is consi stent with the fact that T.B. brought her divorce

papers with her to the meeting with Respondent and did not bring any

medical records. It is also consistent with the fact th at T.B. and Respondent

had discussed her impending divorce at the September 24, 20 19 , meeting.

T.B. also referred to Respondent as her Ñprevious primary doctorÒ in her

statement to Deputy Reno.

37. Further, T.B. told Det ective Gonzalez that when she walked into

RespondentÔs office she was in tears because of the divorce, and that the fi rst

thing she told Respondent was that she had been served with the divorce

papers. During her May 6, 2020, interview with Det ective Gonzalez., T.B.

stated she was not a patient of RespondentÔs on February 25, 2020. T.B. told

Detective Gonzalez that she ha d severed the physician - patient relationship

with Respondent based upon a prior misdiagnosis by RespondentÔs practice,

and that she was seeing Respondent as a ÑfriendÒ on February 25, 2020.

38. Even if T.B.Ôs testimony that she discussed her already planne d

surgery with Respondent was credited, her testimony was that Respondent

told her nothing more than that the surgery was Ñworth a tryÒ and Ñwhy notÒ

have it. Such advice does not rise to the level of or constitute a medical

diagnosis, treatment, operation , or prescription. See § 458.305(3), Fla. Stat.

( 202 0 ) . At most, T.B.Ôs testimony established that T.B. asked Respondent as a

ÑfriendÒ and a person who had previously had a similar surgery whether he

thought she should proceed with the surgery. The fact Re spondent was a

physician, without more, does not convert this conversation between ÑfriendsÒ

into the practice of medicine or create a physician - patient encounter .

C ONCLUSIONS OF L AW

3 9 . DOAH has jurisdiction over the subject matter of this proceeding and

the parties thereto. §§ 120.569 and 120.57(1), Fla. Stat. (2020).

40. A proceeding to suspend, revoke, or impose other discipline upon a

license is penal in nature. State ex rel. Vining v. Fla . Real Estate CommÔn ,

281 So. 2d 487, 497 (Fla. 1973). Petition er must therefore prove the charges

against Respondent by clear and convincing evidence. Fox v. DepÔt of Health ,

994 So. 2d 416, 418 (Fla 1st DCA 2008)(Citing DepÔt of Banking & Fin. v .

Osborne, Stern, & Co. , 670 So. 2d 932 (Fla. 1996)) ; Ferris v. Turlingt on , 510

So. 2d 292 (Fla. 1987) .

41. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must b e precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the all egations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met

where the evidence is in conflict; however, "it seems to preclude evide nce that

is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986,

988 (Fla. 1st DCA 1991).

42. Penal statutes must be construed in terms of their literal meaning and

words used by the Legislature may not be expanded to broaden the

app lication of such statutes. Elmariah v. Dep't of Bus. & Prof'l Reg ., Bd. of

Med., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Griffis v. Fish & Wildlife

Conserv. Comm'n , 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep't of

Fin. Servs. , 982 So. 2d 94, 10 0 (Fla. 1st DCA 2008). "No conduct is to be

regarded as included within a penal statute that is not reasonably proscribed

by it; if there are any ambiguities included, they must be construed in favor

of the licensee." McClung v. Crim. Just. Stds. & Trainin g Comm'n , 458 So. 2d

887, 888 (Fla. 5th DCA 1984)

43. The allegations of fact set forth in the Complaint are the grounds upon

which this proceeding is predicated. Trevisani v. Dep't of Health , 908 So. 2d

1108 (Fla. 1st DCA 2005)(administrative complaint ch arged physician with a

failure to create medical records; proof of a failure to retain medical records

cannot support a finding of guilt); see also Cottrill v. Dep't of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996). Furthermore, due process prohibits the

Department from taking disciplinary action against a licensee based on

matters not specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Delk v. Dep't of Prof'l Reg ., 595 So.

2d 966, 967 (Fla. 5th DCA 1992).

44. Petitioner charged R espondent under s ection 456.072(1)(v), which

provides , in relevant part:

(v) Engaging or attempting to engage in sexual

misconduct as defined and prohibited in s.

456.063(1).

Section 456.063(1) provides, in relevant part:

(1 ) S exual misconduct in the practice of a health

care profession means violation of the professional

relationship through which the health care

practitioner uses such relationship to engage or

attempt to engage the patient or client, or an

immediate family mem ber, guardian, or

representative of the patient or client in, or to

induce or attempt to induce such person to engage

in, verbal or physical sexual activity outside the

scope of the professional practice of such health

care profession. Sexual misconduct in the practice

of a health care profession is prohibited.

45 . Petitioner specifically charged that Respondent engaged in sexual

misconduct by engaging in physical sexual activity with Ñ patient T.B., Ò who

was alleged to be a then patient of Respondent .

46. A fter close of discovery and two business days before the start of the

formal hearing, when preparing the Joint Pre - Hearing Stipulation, Petitioner

for the first time sought to insert a new theory of prosecution into this

proceeding that was not previously charged or presented to the probable

cause panel of the Board of Medicine.

47. Specifically, Petitioner contends in its position included in the Joint

Pre - hearing Stipulation that, Ñ Respondent engaged in sexual misconduct

with T.B. on or about February 2 5, 2020, within a patient - physician

relationship. Ò Petitioner further added, Ñin the alternative, if the physician -

patient relationship is found to be terminated, Respondent engaged in sexual

misconduct as a result of the exploitation of trust, knowledge, influence or

emotions, derived from the professional relationship . Ò

48. Allegations that T.B. was a former patient of Respondent on

February 25, 2020, w ere not charged in the Complaint filed on July 31, 2020,

nor alleged in the Order of Emergency Restricti on entered on July 15, 2020.

The Board of MedicineÔs Probable Cause Panel did not find probable cause

that Respondent engaged in sexual misconduct with a former patient through

exploitation of trust, knowledge, influence , or emotions, derived from the

prof essional relationship. Respondent cannot be subject to discipline for such

uncharged conduct. 2

49. The Complaint Paragraph 17 also references rule 64B8 - 9.008 which

Ñ prohibits sexual misconduct with a patient, including verbal or physical

behavior , which ma y reasonably be interpreted as intended for the sexual

arousal or gratification of the physician, the patient or any third party or may

reasonably be interpreted by the patient as being sexual .Ò See Fla. Admin

Code R . 64B8 - 9.008(2)(a).

2 On October 30, 2020, Respondent filed a motion in limine to preclude Petitioner from

arguing its alternative theory of prosecution and limit the hear ing evidence, testimony , and

argument solely to the conduct actually charged in the Complaint. The motion was

considered after oral argument from both parties on November 2, 2020, and granted. Because

the matter was set for final hearing in less than two d ays, Petitioner Ôs oral motion to amend

the C omplaint to add its new theory of the case was denied by the undersigned.

50. Notably absent f rom the reference in the Complaint to r ule 64B8 - 9.008

was any description of T.B. as a Ñformer patientÒ or recitation to the

remaining language of that rule which specifically addresses Ñsexual behavior

or involvement with a patient not actively receiving treatment from the

physician.Ò

51. In fact, r ule 64B8 - 9.008( 4) specifies that the determination of when a

person is a patient for purposes of this rule is Ñmade on a case by case basisÒ

with consideration given to the nature, extent, and context of the pr ofessional

relationship between the individual and the physician. Subsection (5)

provides a variety of factors to be considered. The Complaint makes no

reference to subsections (4) or (5) and provides no facts which would put

Respondent on notice that he w as being charged with a violation of any

portion of the rule other than subsection 2(a) , which is confined to an existing

patient. The Complaint fails to allege that Ñ the sexual contact is a result of

the exploitation of trust, knowledge, influence or emot ions, derived from the

professional relationship. Ò See Fla. Admin Code R. 64B8 - 9.008(6).

52. Both parties acknowledge in their proposed recommended orders that

the sole issue of material fact that remained for final hearing was whether

T.B. was an existing patient of Respondent on the date of the sexual battery.

53. For reasons stated in the Findings of Fact above , it was not clearly or

convincingly shown that Respondent was T.B.Ôs physician on February 25,

2020, or that Respondent sought to use a physicia n - patient relationship

to engage in sexual misconduct with a patient in violation of s ection

456.072(1)(v), as alleged in the Complaint.

54. T.B. was a former patient who had voluntarily left RespondentÔs

practice in April 2019 , when she transferred her ca re to other physicians.

There was no contact between them after April 2019, and none occurred until

T.B. initiated contact with Respondent in September 2019. As shown by the

documentation and testimony, T.B. sought to return to the practice in

September 20 19, but Respondent rejected her request to return to the

practice as a patient. After September 2019, T.B. and Respondent had no

contact with each other until February 2020 , when Respondent placed a

public comment to T.B.Ôs Facebook post wishing her good l uck with a medical

procedure. T.B. tried to initiate contact with Respondent following his public

comment, but Respondent did not respond to this attempt at contact. When

T.B. sought out Respondent following her receipt of divorce papers,

Respondent agreed to meet with her and as T.B. said in her own words, they

met as Ñfriends.Ò

55. The evidence is clear that T.B. did not then consider Respondent to be

her physician and she was not seeking his advice as a physician. The

evidence is equally clear that noth ing occurred prior to or during the

February 25, 2020, meeting between T.B. and Respondent to reestablish a

physician - patient relationship. Although the conduct engaged in by

Respondent was unquestionably deplorable, RespondentÔs license as a

physician was not relevant to their meeting. He did not seek to use a

physician - patient relationship to engage or attempt to engage T.B. in sexual

activity .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Depar tment of Health, Board of Medicine, enter a

final order dismissing the Administrative Complaint.

D ONE A ND E NTERED this 1 s t day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallah assee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of March , 2021 .

C OPIES F URNISHED :

Amanda M. Godbey, Esquire Louise Wilhite - St . Laurent

Ryan Sandy, Assistant General Counsel General Counsel

John A. Wilson, Esquire Department of Health

Department of Health 4052 Bald Cypress Way , Bin A - 02

Prosecution Services Unit Tallahassee, Florida 32399

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 Robert N. Nicholson, Esquire

Nichol son & Eastin, LLP

Edward Donald Reagan, Esquire Suite 301

Edward D Reagan, P.A. 707 Northeast 3 Avenue

658 West Indiantown Road , Suite 209 Fort Lauderdale, Florida 33304

Jupiter, Florida 33458

Paul A. Vazquez, J.D., Executive Director

George Kellen Brew, Esquir e Department of Health, Board of Medicine

Law Office of George K. Brew 4052 Bald Cypress Way, Bin C - 03

6817 Southpoint Parkway , Suite 1804 Tallahassee, Florida 32399 - 3253

Jacksonville, Florida 32216

N OTICE OF R IGHT T O S UBM IT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.