Dep't of Health v. Khan

• Decision Date: 14 September 2022
• Docket Number: 1D21-1512
• Parties: Department of Health, Appellant, v. Saeed Akhtar Khan, Appellee.
• Court: Florida District Court of Appeals

Department of Health, Appellant, v. Saeed Akhtar Khan, Appellee.

No. 1D21-1512

Florida Court of Appeals, First District

September 14, 2022

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Department of Health, Board of Medicine. Zachariah P. Zachariah, M.D., Chair.

Sarah Young Hodges, Florida Department of Health, Tallahassee, for Appellant.

Jon M Pellett, Pennington, P.A., Jacksonville; Robert N. Nicholson and Parker D. Eastin, Nicholson &Eastin, LLP, Fort Lauderdale, for Appellee.

M.K THOMAS, J.

In this administrative appeal, the Department of Health (the Department) seeks review of a final order of the Board of Medicine (the Board) dismissing its Administrative Complaint against Appellee, Saeed Akhtar Khan. The Department contends that the administrative law judge (ALJ) abused her discretion when she denied its motion to amend the complaint and granted Appellee's motion in limine. We affirm the ALJ's denial of Appellant's motion in limine without further comment. However, we reverse the final order, finding the ALJ indeed erred in denying the Department's motion to amend.

I. Facts

The Department filed an Administrative Complaint against Appellee alleging inappropriate sexual conduct. The Department alleged that after treating T.B. for about thirteen years, Appellee and T.B. arranged to discuss a medical procedure T.B. was to undergo. The Department claimed that while T.B. was at Appellee's office, Appellee made inappropriate sexual advances toward T.B. and told T.B. that he intended to engage in a sexual relationship with her. The Department averred that in doing so, Appellee violated section 458.331(1)(n), Florida Statutes, which authorizes imposition of disciplinary action against a physician for violating section 456.072(1)(v) and/or Florida Administrative Code Rule 64B8-9.008.

Before the hearing on the Administrative Complaint, it became apparent that a central issue in the case was whether T.B. was Appellee's patient when the incident occurred. In the Joint Pre-Hearing Stipulation filed by the parties, the Department described its position as follows:

[The Department] contends that [Appellee] engaged in sexual misconduct with T.B. on or about February 25, 2020, within a patient-physician relationship. In the alternative, if the physician-patient relationship is found to be terminated, [Appellee] engaged in sexual misconduct as a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.

Appellee responded that the Department improperly inserted a new alternative theory of prosecution in the proceeding that was not previously charged or presented to the probable cause panel of the Board. Appellee also filed a motion in limine, asking the ALJ to preclude any evidence or argument related to the theory of prosecution based on T.B. being a former patient, arguing the theory was an uncharged claim, and thus, Appellee could not be subject to discipline on this basis.

At a hearing conducted the same day as the motion in limine was filed by Appellee, the ALJ denied an ore tenus motion for a continuance made by the Department and granted Appellee's motion.^[1] The Department filed a motion for reconsideration, alleging that it requested liberty to amend the complaint rather than have the evidence it sought to admit excluded. According to the Department, the ALJ denied its request because the hearing on the merits was set to occur within days. The Department argued that the ALJ's granting of the motion in limine and denial of its request to amend the Administrative Complaint and for continuance violated its due process rights and constituted reversible error.

The case proceeded to the final hearing where the ALJ heard the Department's motion for reconsideration with the parties stating their arguments on the record. The ALJ denied the motion for reconsideration. The ALJ explained that while the Department had referenced subsection (2) of rule 64B8-9.008 and referred to T.B. as a patient in the Administrative Complaint, it did not reference subsection (6) of the rule, the basis for the alternative theory of disciplinary action, until pre-hearing stipulations were submitted. The ALJ also noted that the Department never referred to T.B. as a former patient.

Following the final hearing, the ALJ issued a Recommended Order.^[2] The ALJ concluded that T.B. was no longer Appellee's patient when the sexual incident occurred. The ALJ also noted that due process prohibited 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. Lastly, the ALJ concluded that in the pre-hearing stipulation, the Department attempted to raise for the first time a new theory of prosecution based on T.B. being a former patient, and that Appellee could not be subject to discipline for the uncharged conduct. Accordingly, the ALJ recommended the Board enter a final order dismissing the Administrative Complaint.

The Department filed their exceptions to the recommended order, arguing the ALJ had violated its due process rights when she denied its request to amend the Administrative Complaint and that the amendment and any continuance of the hearing would not prejudice Appellee. The Board rejected the Department's exceptions and entered a final order accepting the ALJ's recommended order and dismissing the Administrative Complaint.

II. Analysis

A. Preservation

Appellee argues we must affirm the denial of the Department's motion to amend because the issue was not preserved for appeal. Specifically, Appellee claims that because there is no transcript of the motion hearing, it cannot be determined whether the issues raised on appeal were presented to the ALJ below. "For an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation." Hickmon v. Rachel Bushey Reese, P.A., 275 So.3d 841, 842 (Fla. 1st DCA 2019) (quoting Holland v. Cheney Bros., 22 So.3d 648, 649-50 (Fla. 1st DCA 2009)); see also LaCoste v. LaCoste, 58 So.3d 404, 405 (Fla. 1st DCA 2011).

Appellate courts presume a trial court's decision is correct absent a record demonstrating reversible error. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979); JP Morgan Chase Bank v. Combee, 883 So.2d 330, 331 (Fla. 1st DCA 2004). As a result, it is Appellant's burden to demonstrate reversible error. Applegate, 377 So.2d at 1152; Lafaille v. Lafaille, 837 So.2d 601, 604 (Fla. 1st DCA 2003). However, appellate courts generally cannot "reasonably conclude that the trial court so misconceived the law as to require reversal . . . without a record of the trial proceedings." Applegate, 377 So.2d at 1152.

In response, the Department claims that a transcript is unnecessary as there is adequate record evidence to allow for meaningful appellate review, and the error is apparent on the face of the record. The Department is correct that so long as the error is on the face of the record, reversal is proper. See Burke v. Burke, 864 So.2d 1284, 1285 (Fla. 1st DCA 2004) (reversing despite lack of transcript where the order lacked sufficient findings on assets and liabilities as required by statute); Lafaille, 837 So.2d at 604 (holding that where a transcript of the proceedings are not provided, the court is "limited to a consideration of any fundamental error which appears on the face of the order"); Damkohler v. Damkohler, 336 So.2d 1243, 1244 (Fla. 4th DCA 1976) (reversing despite the lack of a transcript where the sentence imposed was contrary to the rule that a person convicted of civil contempt should be given the opportunity to obtain his own release).

Here, we agree with the Department that a transcript of the motion hearing is not necessary for meaningful appellate review given the record evidence establishing the parties' arguments and the ALJ's reasoning for its ruling. In its motion for reconsideration, the Department noted that "[i]n lieu of exclusion of evidence and witnesses, which is an extraordinary remedy, [the Department] requested the ALJ grant an opportunity to amend the Administrative Complaint to fix what the ALJ perceived to be deficient." The Department argued the ALJ abused its discretion in doing so, and that amendment of the complaint could be done quickly because it would not require approval by the probable cause panel.

The ALJ considered the Department's motion for reconsideration at the beginning of the final hearing. Appellee argued that if the ALJ were to amend the complaint, he would need to be able to institute a rule challenge, more discovery would be required, and the claim would need to be presented to the probable cause panel. In the recommended order, the ALJ explained that "[b]ecause the matter was set for final hearing in less than two days, [the Department's] oral motion to amend the Complaint to add its new theory of the case was denied by the undersigned."

In Reyes v. BAC Home Loans Servicing L.P., 226 So.3d 354, 356 (Fla. 2d DCA 2017), the appellant challenged the trial court's decision to deny her motion to amend the affirmative defenses in a mortgage foreclosure action. The Second District reversed the denial despite the lack of a transcript, noting that the record included the complaint the appellant's original answer and defenses, the appellant's motion to amend, the appellee's response to the motion for rehearing, and a transcript of the hearing on the motion for rehearing, which included a "recap" of the hearing of the motion to amend. Id. at 356-58. The ...