21-000864PL Department Of Health, Board Of Medicine vs. Saeed Akhtar Khan, M.D. Status: Closed Recommended Order on Thursday, September 23, 2021.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent engaged in sexual misconduct with patient M.T. in 2015, as alleged in First Amended Administrative Complaint. Recommendation of dismissal.

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. 21 - 0864PL

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

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge (ÑALJÒ) Darren A.

Schwartz of the Division of Administrative Hearings (ÑDOAHÒ) for final

hearing by Zoom conference on July 26, 2021.

A PPEARANCES

For Petitioner: Amanda M. Godbey , Esquire

Ryan Sandy, Esquire

Kristen M. Summers, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Robert N. Nicholson, Esquire

Nicholson & Eastin, LLP

707 Northeast 3 rd Avenue , Suite 301

Fort Lauderdale, Florida 33304

Edward Donald Reagan, Esquire

Edward D . Reagan, P.A.

658 West Indiantown Road , Suite 209

Jup iter, Florida 33458

S TATEMENT OF T HE I SSUE S

Whether Respondent , Saeed Akhtar Khan (Ñ Respondent Ò), engaged in

sexual misconduct in the practice of a health care profession with M.T. in

2015 , as all eged in the First Amended Administrative Complaint; an d, if so,

what discipline should be imposed.

P RELIMINARY S TATEMENT

On January 8, 2021, Petitioner, Department of Health, Board of Medicine

(Ñ Petitioner Ò), issued a First Amended Administrative Complaint

(ÑComplaintÒ) against Respondent , alleging he engag ed in sexual misconduct

in the practice of a health care profession with M.T. in 2015, in violation of

sections 456.063(1), 458.329, 458.331(1)(j), and 458.331(1)(nn), Florida

Statutes (2015) , and Florida Administrative Code Rule 64B8 - 9.008 (2) . On

February 15, 2021, Respondent timely filed an Election of Rights and

Request for Formal Administrative Hearing to contest the allegations. On

March 5, 2021, Petitioner referred the matter to DOAH to assign an ALJ to

conduct the final hearing.

The final hearing w as initially set for May 12 through 14, 2021, but was

continued to July 26 through 28, 2021, at the request of the parties. The final

hearing was held on July 26, 2021. At the hearing, Petitioner presented the

testimony of M.T. and J.T. PetitionerÔs Exhibi ts 1 and 2 were received into

evidence. Respondent testified on his own behalf and presented the

additional testimony of Miranda Chandler, Kristina Chapman, and

Amanda Curtis. Respondent did not offer any exhibits into evidence. 1

1 PetitionerÔs Exhibit 2 consists of pages 1 through 4 , and 65 throu gh 73 to line 15, of the

transcript of RespondentÔs deposition taken on April 8, 2021, in consolidated DOAH Case

Nos. 21 - 0864PL and 21 - 0865PL. Subsequently, the two cases were severed, DOAH Case

No. 21 - 0865PL was closed, and , at the request of the parties , jurisdiction of DOAH Case

No. 21 - 0865PL was relinquished to Petitioner.

The two - volume final hear ing Transcript was filed at DOAH on

August 26, 2021. The parties timely filed proposed recommended orders,

which were considered in the preparation of this Recommended Order. On

July 20, 2021, the parties filed their Joint Pre - Hearing Stipulation, in which

they stipulated to certain facts. These facts have been incorporated into this

Recommended Order as indicated below.

Unless otherwise indicated, all statutory and rule references are to the

versions in effect at the time of the alleged violations.

F I NDINGS OF F ACT

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

medicine in the State of Florida, pursuant to section 20.43 and chapters 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

ME 77602. At all times material to this proceeding , Respondent , who is board

certified in internal medicine, practiced medicine at his own medical practice ,

Saeed A. Khan, M.D., P.A. , located at 2257 Highway 441 North, Suite A,

Okeechobee, Florida 34972.

3. Miranda Chandler is a physicianÔs assistant (ÑPAÒ) in RespondentÔs

medical practice. Ms. Chandler became licensed as a PA 14 years ago and has

worked in RespondentÔs med ical practice as a PA for the past 14 years. M.T. ,

now a former patient of Respondent, is married to Ms. ChandlerÔs brother,

J.T.

4 . On November 30, 2011, M.T., then a 27 - year - old female, was first seen

by Respondent at his medical practice for an initial check - up. M.T. presented

to be Ñdoing well on Adderall with control of her symptoms of ADHD ,Ò and

was advised to continue with the Adderall.

5 . Adderall is a controlled substance prescribed for Attention Deficit

Disorder. Because M.T. was taking Adderal l, she needed to meet regularly

with a health care provider at RespondentÔs practice so that she could obtain

prescription refills .

6 . From November 30, 2011, until October 20 , 2015 , M.T. returned to

RespondentÔs medical practice on several occasions for routine examinations

and prescription refills , at which times she came u nder the medical care of

her sister - in - law, Ms. Chandler.

7 . M.T. w as not charged a fee for any of these visits because the policy at

RespondentÔs medical practice is not to charge a fee to family members of

employees of the practice . Because M.T. is married to J.T. , and J.T. is

Ms. ChandlerÔs brother, M.T. was considered Ñfamily . Ò

8 . However, M.T. and J.T separated in September 2015 , shortly before

M.T. was scheduled to return to RespondentÔs medical practice on October 20,

2015, for a prescription refill.

9 . J.T.Ôs separation from M.T. caused a rift between M.T. and

Ms. Chandler. Following the separation, J.T. attempted suicide and had to be

hospitalized. Ms. Chandler blame d M.T. for the separation and its emotional

impact on J.T. Following the separation, M.T. and Ms. Chandler ceased being

on speaking terms . Ms. Chandler no longer consider ed M.T. Ñ family ,Ò and no

longer w anted to provide medical treatment to M.T.

1 0 . Shortly be fore M.T.Ôs O ctober 20, 2015, appointment, Ms. Chandler

expressed her concern to Respondent about not wanting to continu e to treat

M.T. because of her separation from J.T. Respondent agreed that

Ms. Chandler should no longer treat M.T.

1 1 . Respondent agre ed to see M.T. on October 20, 2015, because her

appointment was for a prescription medication refill , and canceling the

appointment would result in M .T. being unable to refill her prescription.

PetitionerÔs allegations against Respondent are based on h e r visit to

RespondentÔs medical practice on October 20 , 2015.

1 2 . On October 20, 2015, M.T. presented to RespondentÔs medical office at

approximately 2:00 p.m. , for a refill of her controlled substance prescription,

at which time she came under the care o f Respondent. At hearing, M.T.

testified she does not recall the time she arrived at the office, but that at the

start of the appointment, she initially met with Respondent in an

examination room, during which Respondent began asking M.T. about her

sepa rat ion from J.T. M.T. testified she did not want to discuss with

Respondent her separation from J.T. However, when Respondent

subsequently invited M.T. to go into his personal office so that they could talk

further , she accompanied him into his personal offic e anyway .

1 3 . At hearing, M.T. testified that as she and Respondent walked f rom the

examination room toward RespondentÔs personal office , Respondent advised

his staff , whose names she does not recall, that they could go home.

According to M.T., once they arrived in RespondentÔs personal office, he

resumed discussing M.T.Ôs recent separation from J.T.

1 4 . At hearing, M.T. testified that once in RespondentÔs personal office, he

told her t hat she would be lonely being separated from J.T., and that he

would t ake care of her needs. M.T. testified that Ñat first , Ò she did not know

what he meant because she considered Respondent a Ñfamily friend . Ò

1 5 . Nevertheless, M.T. testified she told Respondent she did not need

anything , to which Respondent stat ed : Ñwe all need certain things.Ò M.T.

testified that Respondent told her that Ñhe has other women that he does

things for.Ò M .T. testified that once she realized what Respondent was

Ñinsinuating or saying really,Ò she told him, ÑI donÔt think your wife would

apprecia te that,Ò to which Respondent responded, stating that his wife was

aware of similar arrangements with other women and that he had her

permission , so long as he always came home to his wife.

1 6 . At hearing, M.T. testified that RespondentÔs proposition made her feel

uncomfortable and that she declined RespondentÔs offer , stating continuously

that she needed to go . M.T. testified that she told Respondent Ñthank you,

thank you,Ò ÑI appreciate you looking out for me, but no thank youÒ; Ñthat

would mess things u p worse,Ò and that she needed Ñto get going.Ò

1 7 . At hearing, M.T. testified that as she got up to leave RespondentÔs

personal office, Respondent also stood, walked over to her , and gave her a

Ñhug goodbye.Ò M.T. testified that during the Ñ hug, Ò Responden t placed his

hands around her lower back, moved them down to her buttocks, p ulled

himself close to her pushing his groin into her groin , and rubb ed his erect

penis against her pelvic bone. M.T. testified she pull ed and back ed away from

RespondentÔs embrace and then left the medical office.

1 8 . M.T. further testified that she did not think anyone else was in the

office as she was leaving RespondentÔs office because Respondent had

previously told the staff they could go home . However, M.T. could not say if

t here were any more appointments after hers .

19 . In fact, M.T. was not the last patient of the day to be treated in

RespondentÔs medical practice on October 20, 2015 . On e other patient, L.N.,

was scheduled to be seen at 2:00 p.m. , and two other patients, B .D. and B.D. ,

were scheduled for 3:45 p.m. Moreover, two administrative staff employees of

RespondentÔs medical practice did not leave the medical office until 3:55 p.m. ,

and five other employees left between 4:57 p.m. , and 4:58 p.m.

2 0 . M.T. further test ified that after leaving RespondentÔs medical office ,

she got in her car and drove away, and that while driving, called J.T. to tell

him what had occurred.

2 1 . At hearing, Respondent vehemently denied PetitionerÔs allegations

and M.T.Ôs assertions. Respo ndent testified he was only in an examination

room with M.T. on October 20, 2015, and that the entire appointment lasted

only approximately 15 to 20 minutes . Respondent further denies ever

discussing M.T.Ôs separation from her husband, asking her about hav ing a

relationship outside of his medical office, hugging M.T., rubbing her back,

grabbing her buttocks, and pulling her to his pelvic area.

2 2 . Despite the alleged incident, M.T. returned to RespondentÔs medical

practice for many more years and continued to receive medical treatment

under the care of Amanda Curtis, a nurse practitioner (ÑNPÒ) working in

RespondentÔs medical office since 2015.

2 3 . In 2019, a dispute arose between M.T. and RespondentÔs medical

practice over a referral of M.T. to a neurol ogist . Because of this dispute, M.T.

contemplated submitting a negative on - line Google review of RespondentÔs

medical practice . On November 18, 2019, M.T. was discharged from

RespondentÔs medical practice because of th e dispute over the referral . As of

the date of M.T.Ôs discharge on November 18, 2019 , M.T. owed RespondentÔs

medical practice the sum of $1,910.00, for medical treatment incurred after

October 20 , 2015, t o the date of her discharge ; charges which were more than

150 days past due.

2 4 . Althoug h M.T. is no longer RespondentÔs patient , J.T. , and numerous

other family members of J.T. Ôs (both male and female) , have remained

patients of Respondent.

2 5 . Having observe d the demeanor of the witnesses at hearing and based

on the totality of the evidence adduced at hearing, the undersigned is not

clearly convinced that Respondent, in fact, engaged in sexual misconduct

with M.T. in 2015, as alleged in the Complaint.

2 6 . M.T.Ôs testimony was materially lacking as to the details and timing of

the alleged ev ents. M.T. could not recall when, in 2015, the alleged incident

with Respondent occurred. Rather, M.T. testified it Ñwas towards the end...in

the second half of the year.Ò

2 7 . M.T. also could not recall how long she was in an examination room

with Respond ent prior to allegedly leaving the treatment room and going into

RespondentÔs personal office. Moreover, d espite having been a regular patient

at RespondentÔs medical practice for many years, M.T. could not recall the

names of any staff members working on the day of the alleged incident. M.T.

also could not recall what time she left RespondentÔs medical office the day o f

the alleged incident and whether any staff members were present at the

office when she left.

2 8 . Even if M.T.Ôs testimony that , while in an examination room,

Respondent began asking her q uestions about her separation from J.T. that

she did not want to discuss , is believed, it makes no sense that M.T. would

then voluntarily leave the examination room and follow Respondent to his

personal office, at his request, to discuss the issue Ñfurther.Ò And if

Respondent continued to attempt to proposition M.T. while they were in his

pe rsonal office, why would she thank him , allow him to walk over to her and

give her a hug , and not leave his medical office sooner . These questions raise

serious issues regarding M.T.Ôs credibility and motivations for her assertions.

29 . M.T.Ôs testimony was also contradicted by other evidence and

testimony presented at the hearing. At hearing, M.T. testified h er

appoi ntment time on October 20, 2015, was in the Ñ[l]ate afternoon.Ò

However, M.T.Ôs appointment time was a t 2:00 p.m. In addition, while M.T.

believed she was the last patient scheduled to be seen on the date of the

alleged incident and testified t hat she does not recall seeing anyone else in

the office when she left because Respondent told staff they could go home,

other patients were, in fact, present in RespondentÔs medical office after

M.T.Ôs appointment and staff remained in the office after M.T.Ôs appoint ment.

M.T. further testified that after leaving RespondentÔs medical office following

the alleged incident , she called J.T. from her car. M.T. would have left

RespondentÔs medical practice in the mid - afternoon. However, J .T. testified

that his conversation with M.T. about the alleged incident occurred during

the evening.

3 0 . M.T. further testified that her relationship with Ms. Chandler is

ÑfriendlyÒ and that they Ñspeak,Ò which is in sharp contrast to the testimony

of her own witness, J.T. , and Ms. Chand ler. M.T. further testified that she

told Ms. Chandler about the alleged incident with Respondent, which

Ms. Chandler denies. M.T. also testified that she continued to see

Ms. Chandler for medical care even after the alleged incident, which conflicts

with the testimony of Ms. Chandler, Ms. Curtis, Respondent, and the medical

records.

3 1 . M.T. further testified that the reason she continued to seek treatment

at RespondentÔs medical office after the alleged incident was because she

received free medical care as a family member of an employee of the practice.

However, M.T.Ôs patient file from RespondentÔs office reveals that

RespondentÔs medical practice began charging M.T. after the October 20,

2015, visit , which is consistent with Ms. ChandlerÔs and Responde ntÔs

testimony that because of M.T.Ôs separation from J .T., M.T. was no longer

considered family, and therefore, in eligible for the family courtesy .

3 2 . The fact that M.T. was cut off as ÑfamilyÒ and no longer entitled to the

family courtesy after the Oc tober 20, 2015, visit ; continued treatment with

RespondentÔs office for many years after the incident; was discharged from

the practice because of a dispute over a referral; and owes a balance of

$1,910.00 to the practice, raises further questions about M. T.Ôs credibility and

the motivation s for her assertions.

C ONCLUSIONS OF L AW

3 3 . DOAH has jurisdiction over the parties and subject matter of this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

3 4 . This is a proceeding whereby Petitio ner seeks to revoke RespondentÔs

license to practice medicine. A proceeding to impose discipline against a

professional license is penal in nature, and Petitioner bears the burden to

prove the allegations in the Complaint by clear and convincing evidence.

Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlin gton , 510 So. 2d 292 (Fla. 1987).

3 5 . The clear and convincing evidence standard :

Requires that the evidence must be found to be

credible ; the facts to which the witnesses testify

must be distinctly remembered ; the testimony must

be precise and explicit and the witnesses must be

lacking in conf usion 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 fir m belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established .

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

3 6 . Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier of fact in the context of each

alleged violation. Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1 st DCA

1985 ); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995) .

3 7 . Charges in a disciplinary proceeding must be stri ctly construed, with

any ambiguity construed in favor of the licensee. Munch v. Dep ' t of Prof ' l

Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992). In

addition, the allegations set forth in the Complaint are those upon which this

proceedi ng is predicated. Cottrill v. Dep Ô t of Ins. , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996). Due process prohibits Petitioner from taking disciplinary

action against a licensee based on conduct not specially alleged in the

Complaint. Id. ; see also Delk v. Dep ' t of Prof ' l Reg. , 595 So. 2d 966, 967 (Fla.

5th DCA 1992).

3 8 . Section 456.072(1)(v) provides that a physician is subject to discipline

for Ñ[e]ngaging or attempting to engage in sexual misconduct as defined and

prohibited in s. 456.063(1).Ò Section 456.06 3(1) provides as follows:

Sexual 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 , of an

immediate family member, 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 prof ession. Sexual misconduct in the practice

of a health care profession is prohibited.

39 . Section 458.331(1)(j) further provides that a physician is subject to

discipline for Ñ[e]xercising influence within a patient - physician relationship

for purposes of engaging a patient in sexual activity . A patient shall be

presumed to be incapable of giving free, full, and informed consent to sexual

activity with his or her physician.Ò

4 0 . Section 458.331(1)(nn) provides that violating any provision of

chapter s 458 o r 456, or any rules adopted pursuant thereto constitute

grounds for disciplinary action.

4 1 . Section 458.329 provides that:

T he physician - patient relationship is founded on

mutual trust. Sexual misconduct in the practice of

medicine means violation of the physician - patient

relationship through which the physician uses said

relationship to induce or attempt to induce the

patient to engage, or to engage or attempt to

engage the patient, in sexual activity outside the

scope of the practice or the scope of generally

accepted examination or treatment of the patient.

Sexual misconduct in the practice of medicine is

prohibited.

4 2 . Rule 64B8 - 9.008(2) provides, in pertinent part , that:

(2) For purposes of this rule, sexual misconduct

between a physician a nd a patient includes, but it

is not limited to:

(a) Sexual behavior or involvement with a patient

including verbal or physical behavior which:

1. May reasonably be interpreted as romantic

involvement with a patient regardless of whether

such involvement o ccurs in the professional setting

or outside of it,

2. May reasonably be interpreted as intended for

the sexual arousal or gratification of the physician,

the patient or any third party, or

3. May reasonably be interpreted by the patient as

being sexual.

(b) Sexual behavior or involvement with a patient

not actively receiving treatment from the physician,

including verbal or physical behavior or

involvement which meets any one or more of the

criteria in paragraph (2)(a), above, and which:

1. Results from t he use or exploitation of trust,

knowledge, influence or emotions derived from the

professional relationship,

2. Misuses privileged information or access to

privileged information to meet the physicianÔs

personal or sexual needs, or

3. Is an abuse or reaso nably appears to be an abuse

of authority or power.

4 3 . Turning to the present case, Petitioner failed to prove by clear and

convincing evidence that Respondent is guilty of conduct in violation of

sections 456.063(1), 458.329, 458.331(1)(j), and 458.331( 1)(nn), and rule

64B8 - 9.008(2). The Complaint specifically alleged that Respondent engaged

in sexual misconduct with M.T. in 2015, by telling M.T. that he would take

care of her Ñ needs Ò since she was separated from her husband; touching or

squeezing M.T.Ôs buttocks; and/or by pressing his genital area against M.T.Ôs

body. A s detailed above, it was not clearly and convincingly shown that

Respondent engaged in sexual misconduct with M.T. in 2015, as alleged in

the Complaint. The lack of clarity and inconsiste ncies in M.T.Ôs testimony ;

substantial conflict between M.T.Ôs testimony and other witnesses in this

case ; M.T.Ôs personal conflict with Ms. Chandler and the medical practice ; the

circumstances surrounding her discharge from the practice ; and monies owed

t o the medical practice , raise too many questions regarding M.T.Ôs credibility

and motivations , such that the undersigned is unable to conclude that

Respondent engaged in sexual misconduct as alleged in the Complaint.

R ECOMMENDATION

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

R ECOMMENDED that Petitioner, Department of Health, Board of Medicine,

enter a Final Order dismissing the First Amended Administrative Complaint.

D ONE A ND E NTERED this 2 3rd day of September , 2021 , in Tallaha ssee,

Leon County, Florida.

S

D ARREN A. S CHWARTZ

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of Septem ber , 2021 .

C OPIES F URNISHED :

Amanda M. Godbey, Esquire Robert N. Nicholson, Esquire

Ryan Sandy, Esquire Nicholson & Eastin, LLP

Kristen M. Summers, Esquire 707 Northeast 3 rd Avenue , Suite 301

Department of Health Fort Lauderdale, Florida 33304

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 Paul A. Vazquez, JD, Exec utive Director

Board of Medicine

Edward Donald Reagan, Esquire Department of Health

Edward D . Reagan, P.A. 4052 Bald Cypress Way, Bin C - 03

658 West Indiant own Road , Suite 209 Tallahassee, Florida 32399 - 3253

Jupiter, Florida 33458

Louise St. Laurent, Gen eral Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit writte n 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.