21-001438PL Department Of Health, Board Of Medicine vs. Aunali Salim Khaku, M.D. Status: Closed Recommended Order on Thursday, October 28, 2021.

Summary: Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with two patients.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

M EDICINE ,

P ETITIONER ,

Case No. 21 - 1438PL

VS .

A UNALI S ALIM K HAKU , M.D.,

R ESPONDENT .

/

R ECOMMENDED O RDER

Administrative Law Judge Andrew D. Manko of the Division of

Administrative Hearings ( Ñ DOAH Ò ) presided over the final hearing in this

matter, pursuant to sections 120.569 and 120.57(1), Florida Statutes (20 20 ) ,

on June 8 , 9, 1 0, and 16 , 2021, by Zoom C onference .

A PPEARANCES

For Petitioner: Kristen Summers , Esquire

Elizabeth Tiernan, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3 265

Fo r Respondent: Kathryn Hood, Esquire

Pennington, P.A.

215 South Monroe Street

Tallahassee, Florida 32301

Jon M. Pellett, Esquire

Pennington, P.A.

12724 Gran Bay Parkway West , Suite 401

Jacksonville, Florida 32258

S TATEMENT OF T HE I SSUE

Whether Respondent committed the violations alleged in the Amended

Administrative Complaint ; and, if so, the appropriate penalty therefor.

P RELIMINARY S TATEMENT

O n April 27, 2021, the Department issued a n Amended Administrative

C omplaint ( Ñ Amended Complaint Ò ) charging Respondent with sexual

misconduct with three female patients Ð S.R., M.H ., and M.V.S . Ð in violation

of sections 456.063(1), 458.331(1)(j), and 458.329, Florida Statutes. 1

Respondent disputed the allegations in the Amend ed Complaint and

requested an expedited administrative hearing. On April 30, 2021, the

Department transmitted the case to DOAH for an Administrative Law Judge

to conduct an evidentiary hearing under chapter 120.

The final hearing was scheduled to be held by Zoom on June 8 through 10,

2021. The undersigned issued an Agreed Scheduling Order for Expedited

Proceedings to address deadlines for discovery, pre - hearing stipulations, and

witness and exhibit disclosures . The undersigned also issued a HIPAA

Qualified Protective Order to ensure that any medical records produced

during discovery or presented at the final hearing would be kept confidential.

The parties engaged in discovery. Responden t served notices of production

and subpoenas duces tecum on several no nparties, including the patients, the

Orlando area Department of Veterans Affairs ( Ñ VA Ò ) where Respondent

treated S.R. and M.H. , Orlando Health where Respondent treated M.V.S. ,

and fire - rescue and EM S entities i n the vicinity of M.V.S. Ô s home. The

Departme nt objected to the production of any medical records beyond those

concerning Respondent Ô s treatment of the three patients at issue .

1 The three patients are referenced herein and in the Tr anscript by their initials to protect

their privacy. An unredacted list of their full names is included in the Transcript.

On May 18 and 20 , 2021, the undersigned held teleconference s on the

Department Ô s requests for protective orders . Respondent acknowledged that

he withdrew his discovery requests on the VA after receiving a letter

confirming that it would not release any records without signed releases from

the patients . Respondent also agreed to narrow the scope of his requests for

documents fr om Orlando Health to a list of staff present at Respondent Ô s

office on the date of the alleged sexual misconduct, M.V.S. Ô s medical records

from three specific providers for limited period s of time before and after the

alleged sexual misconduct, and records containing statements M.V.S. made to

other providers , including any mental health providers , about her allegations

against Respondent. Respondent sought these medical records to discover

evidence as to whether M.V.S. suffered from cognitive or other healt h issues

that could have affected her ability to accurately recall the alleged events.

On May 21, 2021, the undersigned issued an Order granting the

DepartmentÔs requests for protective orders , in part. As to Orlando Health,

the undersigned found Responde nt Ô s narrowed scope of requested records to

be reasonably calculated to lead to admissible evidence. As to the mental

health records, which are subject to even greater protection, the undersigned

permitted Orlando Health to submit such records under seal . On May 25,

2021, Orlando Health filed the mental health records under seal and the

undersigned conducted an in - camera review of same. In an Order dated

May 26, 2021, the undersigned found only three sentences concerning

M.V.S. Ô s allegations against Respond ent appropriate for disclosure, provided

the parties with a confidential, redacted version containing only those

sentences, and returned the unredacted records to Orlando Health.

On June 3, 2021, Respondent filed a motion to preclude the Department

from presenting testimony from his wife and questioning him about his

religious beliefs, civic engagement, or his marriage . In an Order dated

June 3, 2021, the undersigned denied the motion based on the DepartmentÔs

confirmation that it would neither present t he testimony of Respondent Ô s wife

nor question him about his religious or civic engagement. The undersigned

reserved as to testimony about Respondent Ô s marriage pending additional

testimony and argument concerning same at the final hearing.

On June 4, 202 1, Respondent moved to strike witnesses associated with

the VA and the allegations concerning S.R. and M.H. based on the

Department Ôs delay in transmitting the case to DOAH and the VA Ôs refus al to

comply with Respondent Ô s subpoena duces tecum . The undersig ned heard

argument on the motion s at the beginning of the final hearing on June 8,

2021 , and, in an Order dated June 9, 2021, denied the motion because, among

other things, Respondent withdrew his discovery requests served on the VA

and failed to file acti ons in state or federal court to en force the subpoenas .

The final hearing occurred on June 8 , 9, 10, and 16, 2021 . The

Department presented the testimony of the following witnesses: (1) M.H.;

(2) Ms. Adams, M.H. Ô s mother; (3) S.R.; (4) M.V.S.; (5) Ms. Tu cker, M.V.S. Ô s

daughter; and (6) Rafael R. Torres Castellon, a Lake Mary Police Department

(ÑLMPDÒ) detective who investigated M.V.S. Ô s allegations.

Respondent testified on his own behalf and presented the testimony of:

(1) Anthony Stampp, the Department Ô s investigator; (2) Daniel Kantor, M.D.,

an expert neurologist; and several practitioners with whom he previously

worked, including (3) Erika Oliver, a nurse practitioner;

(4) Parimalkamur Chaudhari, M.D., a pulmonologist who shared an office

with Respond ent; (5) Simon Oh, a nurse practitioner; (6) Jenny Simons, a

nurse; (7 ) Sara Fleming, a senior medical assistant; (8) Amie Britt, a

scheduling coordinator; and (9) Sayed K. Ali, M.D., an internist.

Joint Exhibits 1 through 5 were admitted in evidence. P etitioner Ô s

Exhibits 1 through 10 were admitted in evidence , except that the portions of

Petitioner Ô s Exhibits 2, 5, and 6 concerning a 2010 law enforcement

investigation of Respondent were excluded pursuant to section 120.57(1)(d).

Respondent Ô s Exhibits 1 through 21, 23 through 25, and 27 were admitted in

evidence. Respondent Ô s p roposed e xhibit 22 was not admitted , as the

undersigned reserved ruling on its admission pending witness testimony and

Respondent never renewed his request for admission.

A n eigh t - volume Transcript of the final hearing was filed on August 2,

2021 . The Department requested an extension on p roposed r ecommended

o rders ( Ñ PROs Ò ) and Respondent moved to enlarge the page limitations on his

PRO. The undersigned granted both requests. The Department, the Board of

Medicine (ÑBoardÒ) , and Respondent timely filed PROs on August 23, 2021 ,

which were duly considered in preparing this Recommended Order.

All references to the Florida Statutes and the Florida Administrative Code

are to the 202 0 ve rsions. In making the findings below, the undersigned only

considered hearsay evidence that supplemented or explained other evidence

or would be admissible over objection in civil actions. § 120.57(1)(c), Fla. Stat.

F INDINGS OF F ACT

Parties and Investigat ion Leading to Issuance of the Amended Complaint

1. The Department is the state agency responsible for regulating the

practice of medicine pursuant to section 20.43 , Florida Statutes, and chapters

456 and 458, Florida Statutes .

2. Respondent, Aunali Salim Khaku, M.D., is a neurologist and sleep

medicine specialist licensed ( ME 114611) in Florida. Respondent completed a

neurology residency in 2013 and a sleep medicine fellowship in 2014. He

practiced at the VA from 2014 until 2020 , initially at the Lake Bal dwin

facility and then at the L ake Nona facilit y . From 2020 until early 2021,

Respondent practiced at Orlando Health . Ot her than the allegations herein,

the Department has never sought to discipline Respondent.

3. Th e Department seeks to revoke Respondent Ô s license based on

allegations that he en gaged in sexual misconduct during office visits with

three female patients Ð S.R., M.H . , and M.V.S. T he parties stipulated that the

factual allegations, if proven by clear and convincing evidence, constitute

sexual mi sconduct under Florida law.

4. On or around December 6 , 2020, M.V.S. reported to both the LMPD and

the Department that Respondent acted inappropriate ly during an office visit

on November 30, 2020 . The Department investigated further, interview ed

M.V.S. an d Respondent , and obtain ed medical records from Orlando Health.

5. On February 17, 2021, the Department issued an Order of Emergency

Restriction of License ( Ñ ERO Ò ) that restrict ed Respondent from practicing on

female patients based on findings of sexual mi sconduct with M.V.S .

6. On February 22, 2021, Respondent requested an expedited hearing

under sections 120.569 and 120.57. The Department properly did not

transmit the case to DOAH at that time , as judicial review of the ERO is via

petition in the appella te court. §§ 120.60(6)(c) and 120.68, Fla. Stat.

Respondent filed such a petition , but the First District Court of Appeal

ultimately denied it on the merits .

7. On March 9, 2021, the Department presented its disciplinary case to a

probable cause panel of the Board . After hearing argument from both parties,

the panel unanimously found probable cause to issue a three - count

Administrative Complaint ( Ñ Complaint Ò ) seeking to discipline Respondent for

engaging in sexual misconduct with M.V.S.

8. On March 10, 20 21, the Department issued the Complaint. O n

March 16, 2021, Respondent requested an expedited formal hearing under

chapter 120 . However, the Department did not immediately transmit the

Complaint to DOAH because it had just received notification that the VA

investigated complaints of sexual misconduct against Respondent by two

veterans , S.R. and M.H. , who each saw Respondent multiple times between

2014 and 2016.

9. The Department obtained records from the VA . As to S.R., the VA

closed the matter as unsubsta ntiated based on S.R. Ô s decision not to pursue

criminal charges and the VAÔs finding of insufficient evidence to support the

allegations. As to M.H., the VA found no conclusive evidence of misconduct

based on Respondent Ô s testimony, which was corroborated by the testimony of

his nurse and a medical student.

10. After receipt of the VA records, the Department interviewed S.R. and

M.H . Based on th is additional information, the Department presented its

case to another probable cause panel to amend the Compla int to include

allegations relating to S.R. and M.H. After hearing from both parties, the

panel voted unanimously on April 23, 2021, to find probable cause of sexual

misconduct with S.R. and M.H.

11. On April 27, 2021, the Department issued the three - count Amended

Complaint seeking to discipline Respondent Ô s license for sexual misconduct

with S.R., M.H., and M.V.S. On April 29, 2021, Respondent filed a third

request for a hearing, which sought transmission of the case to DOAH for an

expedited evidentiary he aring to be held within 30 days.

12. On April 30, 2021, 45 days after Respondent Ô s request for a hearing on

the initial Complaint, the Department transmitted the Amended Complaint

to DOAH to conduct an evidentiary hearing under chapter 120. 2

2 In filings prior to transmittal of the Amended Complaint to DOAH, in pleadings prior to the

final hearing, and orally at the final hearing, Respondent argued that the Department

improperly delayed transmitting the case to DOAH and violated his due process rights

throughout the investigatory process.

Even had Respondent preserved those arguments by including them in his PRO, the

undersigned would have found that the Department Ô s investigation, the probable cause panel

proceedings, and the timing of the transmittal of the case to DOAH did not render the

proceedings unfair or impair the correctness of the Department Ô s action based o n the weight

of the credible evidence. For one, t he Department presented its case to the probable cause

panel 20 days after issuing the ERO and issued the initial Complaint the next day. It

presented the new allegations to a probable cause panel 65 days af ter the ERO (and 44 days

after filing the initial Complaint) and issued the Amended Complaint the next day. The

Department then transmitted the Amended Complaint to DOAH on April 30, 2021, one day

after Respondent requested a hearing on it and 45 days afte r requesting a hearing on the

initial Complaint. Based on this timeline, the Department met its obligation to promptly

institute chapter 120 proceedings. See § 120.60(6)(c), Fla. Stat. ( Ñ Summary suspension,

restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant

to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon. Ò ); see also

§ 456.073(5), Fla. Stat. ( Ñ Notwithstanding s. 120.569(2), the department shall notify the

division within 45 days after rec eipt of a petition or request for a formal hearing. Ò ); Fla.

Admin. Code. R. 28 - 106.501(3) ( Ñ In the case of the emergency suspension, limitation, or

restriction of a license, unless otherwise provided by law, within 20 days after emergency

action taken purs uant to subsection (1) of this rule, the agency shall initiate administrative

proceedings in compliance with Sections 120.569, 120.57 and 120.60, F.S., and Rule 28 -

106.2015, F.A.C. Ò ).

The weight of the credible evidence also failed to establish any r esulting prejudice to

Respondent. He presented no evidence as to how the Department Ô s decision to investigate the

new allegations and issue the Amended Complaint before transmitting the case to DOAH

prejudiced his ability to defend against the allegations. The Department notified Respondent

of M.V.S. Ô s complaint and allowed him to provide statements during the investigation, make

arguments before both probable cause panels, conduct discovery, and adequately prepare for

and defend against the allegations at a final hearing. The fact that the VA did not comply

with Respondent Ô s discovery requests or make witnesses available is neither attributable to

the Department nor a reasonable basis to argue prejudice, particularly where Respondent

failed to enforce subpo enas or challenge the VA Ô s discovery objections in state or federal

court. The undersigned simply cannot find that the Department violated Respondent Ô s due

process rights by waiting 45 days to transmit the case to DOAH while the Department

investigated new allegations involving two other female patients. At best, Respondent Ô s

alleged prejudice is that the Department was able to prosecute him for sexual misconduct

with two additional patients, which it had authority to do independently by separate

complaint or by moving to amend the Complaint once it transmitted the case to DOAH. The

latter option could have resulted in even more delay, as DOAH may have had to relinquish

jurisdiction to allow for the new allegations to be approved by a probable cause panel if the

Department had not already completed that necessary step.

S.R. Ôs T wo Appointments with Respondent in 2014 and 2015

13. In 2014, S.R. , a 58 - year - old veteran who just moved to Orlando ,

requested a neurology referral because she suffers from multiple sclerosis

( Ñ MS Ò ) . The VA referred her to Respondent with whom she had tw o office

visits .

14. On December 29, 2014, S.R. had her first appointment with

Respondent at the VA Lake Baldwin facility . Respondent Ô s assistant took

S.R. Ô s vitals but did not remain in the room during the examination. 3 S.R.

never asked for a chaperone to be present and one was not offered to her .

15. Respondent entered the room and made introductions with S.R . They

discussed the new VA facility in Lake Nona, where Respondent lived, and

restaurants in that area. According to S.R., Respondent said that he h oped to

see her, though she did not understand what that meant.

16. S.R. explained that she suffered her first MS attack over 30 years

earlier but only recently was diagnosed with the disease after a neurologist

ordered an MRI. She discussed her current s ymptoms, including back pain,

muscle spasms , and fatigue . Respondent told her that back problems were

common for women with large breasts , which she thought was odd . But, she

expressed hope that Respondent could continue to help with her symptoms

much like her prior neurologists in South Carolina and South Florida.

17. Respondent examined S.R. and tested her reflexes, vision,

coordination, and physical limitations. Respondent said he wanted to listen to

S.R. Ô s heart . Without even trying to listen over her clothes , he asked S.R. to

lift her t - shirt . He began rubbing his stethoscope across both her breasts and

under her bra . He then cupped the bottom of her left breast with the palm of

3 The VA advocateÔs report indicated that S.R. said that Respondent instructed his assistant

to leave the room prior to his examination. However, S.R. testified credibly that she never

mad e that allegation and her handwritten statement to the VA advocate also contained no

such allegation. That the VA advocateÔs hearsay report says otherwise neither calls S.R.Ôs

credibility into doubt nor undermines the clear and consistent nature of her tes timony.

his hand while holding the stethoscope between his fingers and touch ing he r

nipple . This portion of the examination lasted about ten seconds.

18. At the end of the initial visit, Respondent discussed treatment plans,

medication, and physical therapy with S.R. They scheduled a follow - up

appointment for several months later. Respo ndent documented S.R. Ô s records

based on his examination. Although S.R. testified credibly that she had a

heart murmur, Respondent noted a regular heart rate and rhythm with no

murmurs. He also continued S.R. Ô s prescription for Diazepam, though several

mon ths later he placed an addendum for that initial visit record to indicate

the prescription was improperly entered under his name and that he would

defer to S.R. Ô s primary care physician for th at medication.

19. S.R. thought Respondent Ô s conduct was weird b ecause no doctor had

ever listened to her heart under her cloth es or touched her breasts in that

manner. She felt confused and uncomfortable, but she did not report the

incident then because she trusted Respondent as her doctor and thought it

could have be en a mistake. She also thought Respondent might be the only

neurologist at the VA . She discussed the incident with her husband and

decided that she would be more aware at subsequent appointments.

20. On March 30, 2015, S.R. had her second visit with Respo ndent at the

Lake Nona facility . S he arrived early, but the office staff delayed bringing her

back and then had trouble taking her vitals. S.R. did not request a chaperone

for this visit because everyone seemed very busy.

21. Respondent entered the room a nd they were again alone. Respondent

seemed irritated because he thought S.R. arrived late, which made her

defensive. She complained of left hip pain and told Respondent that she had

not gone for physical therapy . He examined her hip by lifting her leg , wh ich

hurt. She then sat up and he said he needed to listen to her heart. Again ,

w ithout attempting to listen over her t - shirt and bra, he told her to lift her

t - shirt. Because of what occurred during the last visit, S.R. kept her arms

tightly by her side s to limit Respondent Ô s ability to touch her breasts. He kept

using his elbow to try to relax her arms while moving the stethoscope higher

over her breasts , eventually cupping her breast under her bra. He grabbed at

her breasts but g o t frustrated by her re fusal to relax her arms.

22. At that point, Respondent threw the stethoscope into the sink and

became angry , which startled S.R. and made her uncomfortable. S he

requested that he continue her D iazepam prescription to help her sleep at

night, which she sa id her prior neurologist prescribed for muscle spasms.

Respondent told her that the drug was for anxiety, not muscle spasms ,

though he documented in her record that she should continue to take the

medication. Respondent also documented again that S.R. had a regular heart

rate and rhythm.

23. S.R. felt uncomfortable during the entire visit. She had never had a

neurologist get angry or confrontational with her , but she decided not to

report the incidents at that time because she was in pain and just wanted t o

go home. About a month later, she awoke in the middle of the night and

realized the inappropriateness of Respondent Ô s conduct .

24. In August 2015, S.R. returned to the Lake Nona facility to schedule a n

appointment with a different neurolog ist . When she saw Respondent Ô s name

on the signage , s he immediately went to the patient advocate to report his

misconduct in the hope of preventing him from engaging in the same

behavior with other patients. She met with the patient advocate and the VA

police , and she c ompleted a written statement . Although she was supposed to

testify before the VA investigative board , she had trouble finding the room

that day and left without speaking to anyone . Based on S.R. Ô s decision not to

pursue criminal charges and the VAÔs findin g of insufficient evidence to

support the allegations, the VA closed the matter as unsubstantiated.

H owever, the matter was refer red for clinical and/or administrative follow -

up , which resulted in the VA updating its chaperone policy to require signs to

be posted in the offices to put patients on notice of their right to ask for a

chaperone.

25. S.R. did not report the incidents to the Department at the time

because she did not realize she could do so. But, when the Department

contacted her in 2021 about th is case, she agreed to participate and testify.

26. The undersigned found S.R. to be a highly credible witness who

unequivocally testified about Respondent Ô s inappropriate sexual behavior.

S.R. Ô s testimony was compelling, specific, clear, and materially co nsistent

with the statements she made when the incidents first occurred.

27. Respondent testified about his treatment of S.R., but he conceded he

had no independent recollection of the visits. Instead, he based his testimony

on what he documented in her medical records and his standard practice .

28. Respondent testified that he conducted a thorough examination in the

same manner that he evaluates all of his new patients. He performed a

cardiac examination over S.R. Ô s clothing by placing a stethoscope on her chest

in several areas to listen to her heart. He confirmed that he never places the

stethoscope on, or allows his hand to come into contact with, a patient Ô s

breasts and that it was impossible that such contact happened with S.R. even

inadvertently. H e also said that he always has a chaperone present if he

needs to listen to a female patient Ô s heart under her clothing and that is

exactly what he would have done had he needed to do so with S.R.

29. Respondent denied engaging in any inappropriate behavi or with S.R.

and suggested instead that she misperceived what happened. However, he

offered no credible explanation for S.R. having such a misperception , except

to accuse her of being upset for his refusal to prescribe her Diazepam. S.R. Ô s

medical records fail to document any cognitive impairment and Respondent

confirmed that she did not suffer from hallucinations or ailment s that w ould

cause her to imagine things that did not happen. Although S.R. admitted that

it took her a few months to fully realize wha t Respondent had done and to

report it to the VA , the undersigned has no hesitation in finding her

testimony to be a fair and accurate account of Respondent Ô s actual conduct .

30. The records themselves also call the veracity of Respondent Ô s

testimony into question . Although S.R. credibly testified that she had a heart

murmur, Respondent documented the lack of such a murmur even after

conducting two cardiovascular examinations of her. Had Respondent

conducted a proper cardiac examination, he should have ide ntified and

documented her murmur. Further, i t cannot be ignored that the treatment

plan for both visits continued her prescription for Diazepam , even though

Respondent Ð after the first visit but before the second visit Ð placed an

addendum in the record to i ndicate that S.R. needed to obtain the

prescription from her primary care physician. Respondent Ô s notes for the

March 2015 visit also document that Diazepam continued to be an active

prescription for S.R., undermining the suggestion that she would fabricat e an

allegation of sexual misconduct against Respondent on that basis. Moreover,

RespondentÔs expert neurologist had never heard of a patient fabricating

sexual misconduct allegations against a doctor for failing to prescribe

medication.

31. Based on the w eight of the credible evidence, the undersigned finds

that the Department proved by clear and convincing evidence that

Respondent engaged in sexual misconduct with S.R. D uring the first visit ,

Respondent directed S.R. to lift her shirt and inappropriately rubbed his

stethoscope across her breasts and under her bra, cupped her left breast with

the palm of his hand while holding the stethoscope between his fingers, and

touched her nipple. During the second appointment, Respondent directed

S.R. to lift her shi rt again. Although S.R. kept her arms tightly against her

sides to try to limit Respondent Ô s ability to touch her inappropriately, he

inappropriately rubbed the stethoscope across her breasts, cupped her breast

under her bra, and grabbed at her breasts. Re spondent did so on both

occasions without first attempting to listen to S.R. Ô s heart over her clothing,

which itself was contrary to the standard of care.

M.H. Ôs Four Appointments with Respondent in 2015 and 2016

32. In late 2015, the VA referred M.H., a 39 - year - old veteran , to

Respondent for a neurological evaluation after she had an abnormal MRI

showing white matter changes in her brain following an illegal drug

overdose . M.H. had four office visits with Respondent at the Lake Nona

facility on August 1 2 , 2015, November 6, 2015, June 23 , 2016, and August 1,

2016 .

33. During the first three visits, Respondent discussed M.H. Ô s medical

history, prior drug use, and symptoms, including migraines, pain, possible

nerve damage, and cognitive and motor issues ; h e also conducted physical

and neurological examinations. During the fourth visit, Respondent

performed a nerve block procedure to address M.H. Ô s migraines .

34. M.H. testified about the visits and her uncomfortable interactions with

Respondent. During seve ral visits, h e discussed the lack of sex with his wife

and that she allowed him to step outside the marriage. He either asked M.H.

out on a date or to meet at a hotel, which she interpreted as an offer of sex ,

and he also asked if he could call her. He ask ed her questions about her sex

life several times , including how often she had sex with her boyfriend, what

positions they liked, the size of her bra , and whether sex was painful.

35. M.H. testified that Respondent also acted inappropriate ly . During one

v isit, he either lifted her shirt or asked her to lift her shirt to look at her

breasts and listen to her heart. He once block ed the door to prevent her from

leaving the room and attempted to put his arms around her to hug her. He

once put his hands on the bottom of her buttocks, like a lover Ôs caress . During

the fourth visit when the nurse left the room after the procedure, h e had an

erection and rubbed it through his pants against her leg while trying to give

her a hug. She said that she told her mother in the waiting room after that

visit that R espondent had rubbed his erection on her. She also said that he

told her not to say anything about their interactions at each visit .

36. In August 2016, M.H. reported Respondent Ô s conduct to the VA ; she

did not repo rt the conduct to the Department because she did not know she

could. The VA investigative board conducted sworn interviews of M.H.,

Respondent, his nurse, and a medical student, and it considered numerous

letters of recommendation from Respondent Ô s patient s and colleagues . It

found no conclusive evidence of sexual misconduct based on Respondent Ô s

testimony , as corroborated by testimony from a nurse and a medical student.

37. M.H. testified passionately about Respondent Ô s conduct and how it

made her feel. H owever, her recollection of the details Ð as to what occurred ,

when , and who was present Ð was fuzzy and inconsistent in material ways

with the testimony she gave to the VA board in 2016 , her deposition

testimony in this case, and the testimony of her mother. M.H. stated that her

recollection in 2016 was better than now, but the inconsistencies outlined

below affect the weight to be given to M.H. Ô s testimony.

38. M.H. testified initially that she and Respondent were alone in the

examination room at some point d uring each visit. M.H. testified that she

asked to have her daughter present during either the third or fourth visit,

but Respondent refused. M.H. also testified on cross examination that she

could not recall if her mother was in the room with her during t he first two

visits, only to later confirm that her mother must have been present during

those two visits based on the testimony she gave before the VA board in 2016 .

39. M.H.Ôs mother testified that she accompanied M.H. to two of the visits,

though she co uld not recall the dates. Contrary to M.H. Ô s testimony, her

mother said she neither came back to the examination room nor met

Respondent at any visit and based her testimony solely on what M.H. said .

M.H.Ôs mother testified that M.H. said that Respondent a sked her out after

one visit and rubbed his erection against her back after another visit, which

contravened M.H. Ô s testimony that Respondent rubbed his erection against

her leg while hugging her from the front.

40. Before the VA board in 2016, and cont rary to her testimony at the

final hearing, M.H. said that Respondent acted professionally during the first

two visits and that her mother was present in the examination room both

times . M.H. testified that Respondent became unprofessional while they were

alone in the room during the final two visits, at which he asked inappropriate

questions about her sex life. M.H. explained that she was offered a chaperone

before the third visit, but she refused because nothing unprofessional had

occurred before, and tha t Respondent refused to allow her daughter to be in

the room during the procedure on the fourth visit . M.H. said Respondent

grabbed her buttocks during the third visit and, during the fourth visit, he

blocked the door after the procedure, grabbed her butto cks, lifted her shirt to

comment on how much he liked her breasts, and rubbed his erection through

his pants on her leg. When cross - examined about the inconsistencies, M.H.

testified at the final hearing that she may have been protecting Respondent

by sayi ng in 2016 that he acted professionally during the first two visits,

though she now recalls him acting unprofessionally during all four visits.

41. During her pre - hearing deposition in this case , M.H. testified that

Respondent asked questions about her sex life and bra size, discussed his

open marriage, and asked her out during the first visit , but he did not touch

her inappropriately. M.H. testified that Respondent refused to allow her

daughter to stay in the room with her during the second visit and, a fte r the

examination, he blocked the door, grabbed her and tried to hug her, rubbed

his erection on her stomach and leg, and again reiterated that he was allowed

to have s ex outside his marriage . She testified that Respondent discussed his

open marriage and a sked her to date him during the third visit; M.H. said

that the office refused to allow her mother to accompany her in the room.

M.H. testified that the only uncomfortable thing that Respondent did during

the fourth visit was ask her out repeatedly. M.H. testified that Respondent

never asked if she wanted a chaperone at any of the visits , though she later

acknowledged that a chaperone was present at the fourth visit.

42. Respondent testified a bout his treatment of M.H. b ased only on what

he documented in her chart , as he had no independent recollection beyond his

review of her medical records. Respondent denied any inappropriate behavior

with M.H. He claimed that he never allowed himself to be alone in a room

with her because she was engaging in manipulati ve, drug - seeking behavior.

He basically accused M.H. of fabricating the allegations against him because

he refused to prescribe her pain medication.

43. However, Respondent Ô s accusations against M.H. are questionable for

several reasons. Respondent never d ocumented in her record his concern

about M.H. Ô s alleged drug - seeking behavior , that a chaperone needed to be

present at all visits, or that she had requested pain medication . Although he

documented the presence of his nurse and a medical student at the fo urth

visit, he failed to do the same for the first three visits . One would expect a

physician Ð surely one as concerned about a patient Ô s drug - seeking history

and behavior as Respondent now claims to be Ð to document those concerns

and the presence of chaperon es in the medical record to prevent any future

false accusation. This is particularly so given that Respondent , at the time,

had recently been accused of misconduct by S.R., which he believed was both

false and based on her drug - seeking behavior.

44. The m edical records also confirm that M.H. informed Respondent at

the June 2016 visit that she had been prescribed Lyrica for pain while in jail

and that it was working. Respondent noted, Ñ Renewed lyrica, Ò in the

plan/recs section of the record for that visit. Respondent also noted

Pregabalin, the generic name for Lyrica, 4 in both the active and pending

medication lists for both the June and August 2016 visits.

45. The weight of the credible evidence does not support Respondent Ô s

claim that M.H. fabricated her allegations because he refused to prescribe her

pain medication, particularly given her credible testimony that she did not

4 According to WebMD, the generic name for Lyrica is Pregabalin. Available at

https://www.webmd.com/drugs/2/drug - 93965/lyrica - oral/details.

need pain medication because Respondent continued her Lyrica prescription.

It also bears repeating that Respondent Ô s own expert had never heard of a

patient falsely accusing a doctor of sexual misconduct for refusing to

prescribe medication.

46. After evaluating the evidence, the undersigned finds M.H. generally to

be a more credible witness overall than Respondent. She testified

pass ionately and credibly about Respondent Ô s requests to meet her outside

the office because he had an open marriage and his wife allowed such

conduct . She also credibly explained how Respondent commented on the size

of her breasts, grabbed her buttocks, and r ubbed his erection on her.

47. Importantly, however, the undersigned cannot ignore that the clear

and convincing evidence standard applies in this case. M.H. Ô s recollection was

too fuzzy and inconsistent to definitive ly find without hesitation that

Respon dent engaged in the exact sexual misconduct alleged by M.H. and set

forth in the Amended Complaint . If the Department Ô s burden in this case was

a mere preponderance of the evidence, the undersigned would likely find that

it proved Respondent engaged in sex ual misconduct with M.H. But, the clear

and convincing evidence standard applies herein . And, because M.H. could

not provide the type of definitive and clear testimony required in this

disciplinary action , the Department failed to prove that Respondent eng aged

in sexual misconduct with M.H.

M . V . S . Ôs One Appointment with Respondent in 2020

48. On November 30, 2020, M.V.S., a 68 - year - old woman, had an initial

neurology consult with Respondent at Orlando Health. M.V.S. sought a

neurologist based on an abnorma l MRI showing a cyst near her pituitary

gland and complaints of neck pain radiating to her shoulder and arm.

49. After filling out paperwork in the reception area, a medical assistant

or nurse brought M.V.S. to an examination room . The room had an

examinat ion table, which could be lowered, a counter, and a chair. M.V.S. sat

in the chair while the assistant took her vitals. Although M.V.S. has a history

of blood pressure spikes, for which she has called 911 and even gone to the

hospital several times, her bl ood pressure was within normal limits that

morning . The assistant waited for M.V.S. to complete the paperwork and

then left the room.

50. Respondent entered the room a few minutes later and closed the door

behind him. He wore green scrubs and a white lab coat; she wore a skirt,

blouse, bra, and underwear. He and M.V.S. were alone for the remainder of

the appointment.

51. They initially discussed M.V.S. Ô s medical history and complaints.

M.V.S. talked about her aunt, who had symptoms of Alzheimer Ô s disease and

did not recognize her on a recent visit. She was concerned about the disease

because she recently had forgotten some small details, like the name of an

actor in a movie . M.V.S. did not believe she had significant memory issues,

but she wanted research on the disease because it ran in her family.

52. Respondent asked M.V.S. if she lived with anyone , which she

in terpreted as a question relating to her safety . S he informed him that she

lived alone within close proximity to a fire station . She also mentione d that

her daughter lived in Orlando and her fiancé lived in Longwood. Respondent

asked if she had sexual relations with her fiancé ; she explained that they did

not because her fiancé had prostate cancer . M.V.S. thought the question was

odd given the reaso n for the appointment and because no other physician had

ever asked that type of question before.

53. Respondent moved on to M.V.S. Ô s complaints of neck pain. She

explained that she experienced pain o n the left side of her neck that radiated

to her left sh oulder and left arm. At that point, Respondent directed M.V.S. to

sit on the table so he could examine her .

54. While standing to M.V.S. Ô s left, Respondent rubb ed and squeez ed her

neck and shoulder s with his thumb s and fingers for a couple of minutes . No

other doctor had examined her in that fashion before. He said she felt tense,

but never asked if she experienced pain during the examination . She

confirmed that it definitely felt like a neck and shoulder massage, which she

had received many times . She not ed that her cardiologist had recently

palpated her neck for pain by using two fingers to poke and feel around ,

which was different than Respondent Ô s examination. Indeed, when a doctor

palpates for pain, they typically use two fingertips to lightly press an d prod

in the trouble areas and obtain feedback from the patient about the level of

pain.

55. Respondent then examined M.V.S. Ô s spine while she stood in front of

him. He thereafter examined her reflexes, eyes, and extremity strength while

she sat on the ta ble. He also conducted a memory test, which she passed.

M.V.S. did not recall Respondent listening to her heart during the visit.

56. At that point, Respondent directed M.V.S. to lie face - down on the

table , which already was lowered . He asked if he could r aise her skirt and she

said, yes, because she believed it related to a muscular or skeletal

examination. He raised her skirt and, over her underwear , rubb ed her lower

back and eventually moved down to her buttocks using both of his hands . He

rubbed and squ eezed both of her buttocks. She confirmed it felt like a

deliberate, prolonged massage, which had never happened to her at a doctor Ô s

office. Her mind raced, she felt frozen , and she could not believe what was

happening.

57. After one to two minutes, Respo ndent told her to sit up because he

heard a voice . She sat on the end of the table and he began massaging and

squeezing her right breast while standing on her right. He told her that he

had never done this before and that she was beautiful. She thanked him in a

low voice , but she was afraid and felt trapped because t hey were alone , there

were no witnesses , and she was unsure of what he would do.

58. Respondent asked if M.V.S. was comfortable with him massaging her

breast and he stopped when she said no. He moved to her left side and

explained that his wife would not have sex with him , so she permitted him to

have sex outside the marriage . He asked if M.V.S. would meet him for sex

and she declined. Respondent asked if that was because her fiancé would

object , and she confirmed they had a commitment.

59. At that point, Respondent pulled his lab coat back and said, Ñ Look at

this. Look what you did to me. Ò Respondent revealed his erect penis, which

M.V.S. confirmed was clearly visible through his scrubs. Respond ent told her

to keep this between us, said his assistant would be in shortly with

paperwork, and left the room. M.V.S. waited for about seven minutes and,

when no one came, she left the room, tried to hold her composure, and

checked out. She said nothing b efore leaving because she felt unsafe and was

unsure if anyone would believe her anyway.

60. M.V.S. turned on her carÔs air conditioning and drank water to calm

down. Her heart was pounding , and she feared having a blood pressure spike.

As soon as she arr ived home, M.V.S. called her daughter to tell her what

happened. M.V.S.Ôs daughter, who is a nurse, told her to call the police .

61. M.V.S. called the LMPD that afternoon. The officer with whom she

spoke suggested that she file a complaint with the Departm ent, which she did

on December 6, 2020 . Both the Department and the LMPD investigated the

allegations, which included interviews of M.V.S. and Respondent. 5 M.V.S.

also reported the incident to Orlando Health risk management.

62. The undersigned found M.V.S . to be a highly credible witness who

testified passionately and definitively about Respondent Ô s inappropriate

sexual behavior during the office visit. She immediately reported it to the

LMPD and, within a week, filed complaints with both the Department an d

Respondent Ô s employer. M.V.S. Ô s testimony was clear, specific, detailed,

compelling, and materially consistent with the interviews and statements she

gave immediately following the visit.

63. Respondent testified about his treatment of M.V.S. , but Ð as he did

with the S.R. and M.H. Ð he conceded he had little to no independent

5 Based on the information obtained from M.V.S. and Respondent, the LMPD placed the case

into inactive sta tus pending further evidence.

recollection of her or the visit. Instead, he reviewed her medical records,

which refreshed his recollection of what occurred during the visit.

64. Respondent denied engaging in any in appropriate behavior with

M.V.S. that could have been interpreted as sexual or outside the scope of a

proper examination. He testified that he conducted a neurological

examination, palpated her neck for pain, checked her reflexes, and conducted

a memory te st. He said he never massaged her neck and shoulders, touched

or massaged her breast s or buttocks, discussed his marriage, solicited her to

have sex, said she was beautiful, or revealed an erection through his scrubs.

He also said she could not have l ai d f ace - down on the table because he never

lowered the back or extended the footrest ; he confirmed that he would have

brought in a chaperone if he needed her to lie on the table.

65. Respondent testified that M.V.S. Ô s accusations against him were the

product o f memory loss and cognitive impairment. Although M.V.S. reported

a family history of Alzheimer Ô s and a fear of mild memory loss, Respondent

documented that she performed well on her memory and cognitive

examinations. M.V.S. and her daughter testified credi bly that she did not

experience significant memory loss beyond forgetting the name of an actor in

a movie . Respondent himself confirmed that M.V.S. did not suffer from

hallucinations or ailment s that would cause her to perceive things that were

not there Ð a point with which his expert neurologist agreed given the way

Respondent documented the medical record . And, more importantly, M .V.S. Ô s

ability to recall the specific details of the visit and do so consistently with the

statements she made previously under mine Respondent Ô s belief that

cognitive impairment caused her to fabricate her allegations. The weight of

the credible evidence simply does not support the suggestion that M.V.S.

misperceived, confabulated, or fabricated her allegations based on memory

los s or cognitive impairment.

66. Additionally, Respondent attempted to discredit M.V.S. by suggesting

that she may have come onto him. Indeed, he testified that she was verbose

and told him during their initial discussion about her history that her fiancé

w as older, that she was a 60s baby, and that she had not been touched in a

while. Aside from M.V.S.Ôs credible testimony that she said no such things, it

cannot be ignored that Respondent conceded that his memory of the visit was

based on his review of the medical record , which contained no reference to

these comments even though Respondent says they were odd.

67. Respondent also presented evidence that M.V.S. had previously called

911 on multiple occasions relating to blood pressure spikes to undermine the

veracity of her testimony. However, the recordings of the 911 calls reveal an

individual who, despite being concerned about her blood pressure, is alert,

aware of her surroundings, clear - headed, and in no way suffering from an

illness that would raise dou bts about the veracity of her testimony or her

credibility overall.

68. Based on the weight of the credible evidence, the undersigned finds

that the Department proved by clear and convincing evidence that

Respondent engaged in sexual misconduct with M .V.S. He inappropriately

massaged her neck and shoulders, buttocks, and breast. He disclosed that he

had an open marriage and solicited M.V.S. to meet him for sex outside the

office. He also told her that she was beautiful and revealed his erection

through his scrubs.

C ONCLUSIONS OF L AW

69. DOAH has jurisdiction over the subject matter of th is proceeding and

the parties t hereto . §§ 120.569 and 120.57(1), Fla. Stat .

70. T he Department seeks to revoke Respondent Ô s license to practice

medicine based on sexual mis conduct with three patients . Proceedings to

discipline a license, including revocation, are penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm Ô n , 281 So. 2d 487, 491 (Fla. 1973). Th us, the

Department bears the burden of proving the charges agai nst Respondent by

clear and convincing evidence. § 458.331(3), Fla. Stat.; Fox v. Dep Ô t of Health ,

994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep Ô t of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996)).

71. As stated by the Florida Su preme 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 be precise and

explicit and the witnesses must be lacking in

con fusion 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 allegations

sought to be established.

In re Henson , 913 So. 2d 5 79, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla. 4th DCA 1983)). Ñ [E] ven when the evidence is in

conflict, the proof may be more than sufficient to meet the standard of clear

and convincing evidence. Ò In re Henson , 913 So. 2d at 59 2 (quoting In re

Bryan , 550 So. 2d 447, 448 n.* (Fla. 1989) ).

72. Penal statute s must be construed strictly according to the ir plain

meaning and the actual text used by the Legislature may not be expanded

upon to broaden the application of such statutes . Elmariah v. Dep Ô t of Bus. &

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

Conserv. Comm Ô n , 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep Ô t of

Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA 2008). Ñ 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. Ò McClung v. Crim. Just. Stds. & Training Comm Ô n , 458 So. 2d

887, 888 (Fla. 5t h DCA 1984).

73. Th is proceeding is predicated on th e factual allegations set forth in the

Amended Complaint. Trevisani v. Dep Ô t of Health , 908 So. 2d 1108 (Fla. 1st

DCA 2005); Cottrill v. Dep Ô t of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996). D ue proc ess 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. Delk v. Dep Ô t of

Prof Ô l Reg. , 595 So. 2d 966, 967 (Fla. 5 th DCA 1992).

74. The three - count Amended Complaint alleged that Respondent engaged

in sexual misconduct with three patients . Eac h count charged Respondent

with violating distinct statute s or rule s based on the alleged sexual

misconduct with all three pati ents.

75. Count I charged Respondent with violating section 456.072(1)(v),

which provides as follows :

(1) The following acts shall constitute grounds for

which the disciplinary actions specified in

subsection (2) may be taken:

* * *

(v) Engag ing or attempting to engage in sexual

misconduct as defined and prohibited in s.

456.063(1).

76. Section 456.063(1) defines Ñ sexual misconduct Ò 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, or 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 profession. Sexual misconduct in the practice

of a health care profession is prohibited.

77. Count II charged Respondent wit h violating section 458.331(1)(j),

which provides as follows :

(1) The following acts constitute grounds for denial

of a license or disciplinary action, as specified in s.

456.072(2):

* * *

(j) Exercising influence within a patient - physician

rel ationship 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.

78. Count III charged Respondent with violating section s 458.331(1)(nn)

and 458.329. Section 458.331(1)(nn) provides as follows :

(1) The following acts constitute grounds for denial

of a license or disciplinary action, as specified in s.

456.072(2):

* * *

(nn) Violating any provision of this chapter or

chapter 456, or any rules adopted pursuant thereto .

79. S ection 458.329 provides as follows :

The physician - patient relationship is founded on

mutual trust. Sexual misconduct in the practice of

medicine means violation of the physician - patient

relations hip 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.

80. T he parties stipulated that the factual allegations, if proven by clear

and convincing evidence, constitute sexual misconduct under Florida law . 6

81. Based on t he Findings of Fact above, the Department proved by clear

and convincing evidence that Respondent engaged in sexual misconduct with

S.R. in violation of sections 458.331(1)(j), 458.329, and 456.0 63(1) .

82. Based on the Findings of Fact above, the Departme nt failed to prove

by clear and convincing evidence that Respondent engaged in sexual

misconduct with M.H ., as charged .

83. Based on the Findings of Fact above, the Department proved by clear

and convincing evidence that Respondent engaged in sexual misco nduct with

M.V.S. in violation of sections 458.331(1)(j), 458.329, and 456.0 63 (1).

84. Florida Administrative Code Rule 64B8 - 8.001 sets forth disciplinary

guidelines for violations of chapters 456 and 458. For violations of

section s 458.331(1)(j), 458.329, and 456.072(1)(v) , the rule provides a range of

penalties. Fla. Admin. Code R. 64B8 - 8.001(2)(j). For a first offense, the

guidelines impose a minimum of a Ñ one (1) year suspension to be followed by

a period of probation and a reprimand, and an administrat ive fine of

$5,000.00 to revocation or denial and an administrative fine of $10,000.00. Ò

Id . For a second offense, the guidelines require revocation. Id . The rule

provides that Ñ multiple counts of the violated provisions or a combination of

the violations may result in a higher penalty than that for a single, isolated

violation . Ò Fla. Admin. Code R. 64B8 - 8.001(1). The Board also may deviate

from the guidelines based on Ñ consideration of aggravating and mitigating

factors present in an individual case .Ò Fla. Admin. Code R. 64B8 - 8.001( 3).

6 In addition to the statutory violations in Counts II and III, the Department also alleged

that Respondent violated Florida Administrative Code Rule 64B8 - 9.008, which also defines

Ñsexual misconduct . Ò Respondent argued befo re and during the hearing and in his PRO that

he cannot be disciplined for a violation of the rule because it is an invalid exercise of

delegated legislative authority. However, based on the partiesÔ stipulation and as a matter of

judicial restraint, the u ndersigned need not resolve RespondentÔs argument concerning the

invalidity of the rule. That is because Counts II and III allege independent statutory

violations Ð distinct from and not based on the rule Ð that the Department proved by clear

and convincing ev idence and for which the Department may discipline Respondent.

85. Construing the rule in the light most favorable to Respondent, the

undersigned concludes that this is a multiple count, Ñfirst offenseÒ case.

Because Respondent has never been discipline d before , this is not a case in

w hich the Board permitted Respondent to practice medicine after being

penalized once and he thereafter committed a second offense . That said,

Respondent has committed two counts of sexual misconduct in this case,

which gives the Board discretion to impose a penalty at the higher end of the

range for first offenses, including revocation.

86. Although revocation is permissible under the rule, the undersigned

notes that mitigating factors exist in this case that may justify a penalty

short of revocation. T he r ecord contains numerous letters of support from

patients and colleagues as to RespondentÔs stellar reputation within the

community and the substantial time he spends giving back to the profession

by mentoring medical students and other healthcare professio nals . Several

colleagues offered similar testimony at the hearing. Respondent is also young

and at the sunrise of his career , such that there is likely time and

opportunity for rehabilitation, reflection, and a second chance.

87. That is not to say that R espondent should be slapped on the wrist.

There is no question that his significant violations discussed above are

serious, completely inexcusable, and harm ed the female patients involved.

However, serious discipline could be imposed short of revocation th at will

both prevent him from engaging in similar misconduct in the future and

allow him to continue to earn a living , practice medicine , and contribute as he

has to mentoring medical students and others . As such , the undersigned

recommends a two - year susp ension followed by a permanent restrict ion that

either preclude s Respondent from treating female patients or , at a minimum,

doing so without a chaperone. Th is would subject Respondent to severe

penalties and prevent him from harming female patients , while also allow ing

him to meaningfully contribute to the profession as he has done so far in his

young career and to continue to earn a living using his medical degree .

R ECOMMENDATION

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

R ECOMME NDED that the Department of Health, Board of Medicine, issue a

final order finding Respondent committed sexual misconduct prohibited by

sections 458.331(1)(j), 458.329, and 456.0 63 (1) , s uspending RespondentÔs

license for two years , and thereafter permanent ly restricting his license to

either prohibit him from seeing female patients or , at a minimum, doing so

without a chaperone present . 7

D ONE A ND E NTERED this 2 8 th day of October , 2021 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

Administrati ve 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 2 8 th day of October , 2021 .

7 Section 456.072(4), Florida Statutes, provides that the Board, in addition to any other

discipline imposed through final order, Ñshall assess costs related to the investigation and

prosecutio n of the case.Ò Prior to the final hearing, the parties agreed to bifurcate the

investigative costs issue (including RespondentÔs argument that such costs should not be

assessed because they are based on unpromulgated rule s ) pending resolution of the merit s of

the Amended Complaint. Upon further reflection, the undersigned concludes that resolving

such an issue Ð even in a bifurcated proceeding Ð is premature because the Board has not yet

issued a final order disciplin ing Respondent or followed the procedure in section 456.072(4) ,

which requires it to consider an affidavit of itemized costs and any written objections thereto.

It is in those written objections where Respondent may challenge the costs as being based on

an unpromulgated rule . And, if RespondentÔs w ritten objections create a disputed issue of

fact, the Department can transmit the investigative costs issue to DOAH to resolve that

dispute , just as it did in C ase No. 20 - 5385F.

C OPIES F URNISHED :

Jon M. Pellett, Esquire Kristen Summers , Esquire

Penningt on, P.A. Prosecution Services Unit

Suite 401 Department of Health

12724 Gran Bay Parkway West 4052 Bald Cypress Way, Bin C - 65

Jacksonville, Florida 32258 Tallahassee, Florida 32399 - 32 65

Kathryn Hood, Esquire Elizabeth Tiernan, Esquire

Pennington, P.A. Prosecution Services Unit

215 South Monroe Street Department of Health

Tallahassee, Florida 32301 4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 32 65

Donna C. McNulty, Esquire

Office of the Attorney General Edward A . Tellechea, Esquire

The Capitol, Plaza Level 01 Office of the Attorney Gen eral

Ta llahassee, Florida 32399 - 1050 The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Paul A. Vazquez, JD, Executive

Director Louise St. Laurent , General Counsel

Board of Medicine Department of Health

Department of Health 4052 Bald Cypress Way, Bin C - 65

4052 Bald Cypress Way, Bin C - 03 Tallahassee, Florida 32399 - 32 65

Tallahassee, Florida 32399 - 3253

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to s ubmit 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.