Dep't of Health v. Khan, 1D21-1512

CourtCourt of Appeal of Florida (US)
Writing for the CourtM.K. Thomas, J.
Citation350 So.3d 87
Parties DEPARTMENT OF HEALTH, Appellant, v. Saeed Akhtar KHAN, Appellee.
Docket Number1D21-1512
Decision Date14 September 2022

350 So.3d 87

Saeed Akhtar KHAN, Appellee.

No. 1D21-1512

District Court of Appeal of Florida, First District.

September 14, 2022
Rehearing Denied November 14, 2022

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.

350 So.3d 90

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."

350 So.3d 91

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...

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