Department of Health v. Saeed Akhtar Khan ( 2022 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D21-1512
_____________________________
DEPARTMENT OF HEALTH,
Appellant,
v.
SAEED AKHTAR KHAN,
Appellee.
_____________________________
On appeal from the Department of Health, Board of Medicine.
Zachariah P. Zachariah, M.D., Chair.
September 14, 2022
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
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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
1 A transcript of the hearing is not included in the record as a
court reporter was not present.
2 In the Recommended Order issued by the ALJ, the ALJ
noted she had granted the motion in limine after receiving oral
arguments from the parties. The ALJ explained that she had
denied the Department’s oral motion to amend the complaint to
add the new theory of the case because the final hearing was set
for less than two days away.
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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
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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
5
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 Second District concluded
that under these circumstances the lack of a transcript did not
impede its consideration of the appellant’s challenge to the trial
court’s denial of her motion to amend. Id. at 356.
It is clear from the record that the Department sought to
amend the Administrative Complaint to include the alternate
theory of the case after the ALJ granted Appellee’s motion in
limine. The Department urged that if the ALJ were going to grant
the motion in limine, it should have the opportunity to amend the
Administrative Complaint to cure the alleged deficiency. The ALJ
made clear that it denied the Department’s request because the
final hearing was scheduled to begin in two days. Under the
circumstances here, a transcript of the hearing in which the
Department originally requested to amend the complaint is not
needed to allow for appellate review and we consider the issue
preserved. See id.; see also Am. Integrity Ins. Co. v. Estrada, 276
So. 3d 905, 910 (Fla. 3d DCA 2019) (reversing the trial court’s order
striking affirmative defense where the trial court’s reasoning was
evident in the order); Houk v. PennyMac Corp., 210 So. 3d 726,
730–31 (Fla. 2d DCA 2017) (holding that absence of transcript was
not critical to the determination of appeal where record was
sufficient to determine whether the trial court had properly
entered summary judgment). 3
3 We also note that the ALJ held the hearing on the motion a
matter of hours after Appellee filed the motion in limine, and
according to the Department, the hearing was only scheduled the
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B. Merits
As to the merits of the Department’s claim that the ALJ erred
when she denied its motion to amend, under the Florida
Administrative Code, a petitioner may amend a petition, after the
designation of a presiding officer, if the presiding officer gives leave
for the petitioner to do so. Fla. Admin. Code R. 28-106.202. “A
party is not precluded from amending its petition during the
hearing if there is no showing of prejudice to the opposing party.”
Fla. Bd. of Med. v. Fla. Acad. of Cosm. Surgery, Inc., 808 So. 2d
243, 256 (Fla. 1st DCA 2002) (citing Key Biscayne Council v. State,
Dep’t of Nat. Res., 579 So. 2d 293 (Fla. 3d DCA 1991)), superseded
on other grounds. Thus, a party’s failure to raise an issue in the
pleadings will not operate as a conclusive waiver of its right to rely
on that issue, but rather, the parties must be afforded a reasonable
opportunity to amend the issues to conform to the evidence. See
Univ. Cmty. Hosp. v. Dep’t of Health & Rehab. Servs., 610 So. 2d
1342, 1347 (Fla. 1st DCA 1992). Generally, “[a]mendments should
be liberally allowed.” Optiplan, Inc. v. Sch. Bd. of Broward Cnty.,
710 So. 2d 569, 571 (Fla. 4th DCA 1998) (quoting Silver Express
Co. v. Dist. Bd. of Lower Tribunal Trustees of Miami-Dade Cmty.
Coll., 691 So. 2d 1099, 1103 (Fla. 3d DCA 1997)).
The public policy of Florida favors liberality in permitting
amendments to pleadings so that the resolution of disputes will be
on their merits. See Morgan v. Bank of New York Mellon, 200 So.
3d 792, 795 (citing to Fla. R. Civ. P. 1.190(a); Hatcher v. Chandler,
589 So. 2d 428, 429 (Fla. 1st DCA 1991)). As stated by this Court,
“[a]bsent exceptional circumstances, motions for leave to amend
should be granted, and refusal to do so constitutes an abuse of
discretion.” Morgan, 200 So. 3d at 795 (citing to Thompson v. Jared
Kane Co., Inc., 872 So. 2d 356, 360 (Fla. 2d DCA 2004)).
“A trial court's refusal to permit an amendment of a pleading
is an abuse of discretion unless it is clear that: (1) the amendment
would prejudice the opposing party, (2) the privilege to amend has
been abused, or (3) the amendment would be futile.” S. Devs. &
day before on a different motion, making it difficult for the
Department to ensure the presence of a court reporter.
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Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56,
62–63 (Fla. 2d DCA 2011); see also Morgan, 200 So. 3d at 795.
Here, the Appellee failed to establish that any of these three
exceptions to the liberal policy of granting motions to amend
applied.
The ALJ simply cited the fact that the final hearing was
scheduled to begin in two days as her reason for denying the
motion to amend. However, the timing of the Department’s motion
alone is not determinative of the issue. The Supreme Court of
Florida recently addressed the issue of “whether midtrial
amendments to a charging document that alter the elements of a
criminal defense are per se prejudicial.” Thach v. State, 47 Fla. L.
Weekly S176 (Fla. June 30, 2022). The supreme court answered
the question in the negative, holding “that any such amendments
should be assessed on a case-by-case basis to determine, based on
the totality of the circumstances, if they prejudice the substantial
rights of the defendant.” Id. We find the opinion persuasive and
hold that determinations regarding amendment to administrative
complaints must also be made on a case-by-case basis, based on
the totality of the circumstances.
The totality of the circumstances here support allowing the
Department to amend the complaint. Any delay in the proceedings
caused by the amendment of the complaint would likely be
minimal under the circumstances. The action upon which the
charges are based are the same regardless of whether the
Department proceeded based on the theory T.B. was a current
patient or a former patient when the incident occurred. Appellee
does not describe any additional discovery that would need to occur
if the complaint were amended to include the theory that the
sexual contact at issue was “a result of the exploitation of trust,
knowledge, influence or emotions, derived from the professional
relationship.” See Fla. Admin. Code R. 64B8-9.008(6). And even if
additional discovery were required, Appellee could have requested
a short continuation of the proceedings to complete such discovery.
See Mishpaja Shajine, Inc. v. Granada Ins. Co., 319 So. 3d 762, 764
(Fla. 3d DCA 2021) (noting that any prejudice which may be
deemed to have existed ordinarily should be remedied, not by
denial of the amendment, but by a continuance); Carib Ocean
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Shipping, Inc. v. Armas, 854 So. 2d 234, 236 n.2 (Fla. 3d DCA
2003).
The Department argued below that if amendment was
allowed, a probable cause panel would not need to be convened to
consider the alterative theory of prosecution. Yet, even if a new
probable cause finding were required for the Department to
proceed on the alternative theory of prosecution, the ALJ could
have relinquished jurisdiction for it to do so and the parties would
ensure the probable cause panel was quickly convened. See, §
120.569(2), Fla. Stat. (“The referring agency shall take no further
action with respect to a preceding under s. 12.57(1), except as a
party litigant, as long as the division has jurisdiction over the
proceedings under s. 120.57(1).”).
Ultimately, the critical issue in this case was whether
Appellee’s interaction with T.B. constituted sexual misconduct
warranting disciplinary action. The ALJ abused her discretion
when she denied the Department’s motion to amend. See Key
Biscayne Council, 579 So. 2d at 294–295 (“Although the Council
did not file its proposed amendment until the day the
administrative hearing began, neither the Florida Administrative
Code nor Florida’s Administrative Procedure Act preclude the
filing of the proposed amendment as untimely or the grant of a
continuance to conduct discovery and develop the issue of
necessity. Because the proposed amendment raised a critical issue
and because the Hotel had not demonstrated how it would have
been prejudiced by the amendment or a continuance, we conclude
the denial of the motion to amend constituted an abuse of
discretion.”); All Risk Corp. of Fla. v. State, Dep’t of Lab. & Emp.
Sec., Div. of Workers’ Comp., 413 So. 2d 1200, 1202 (Fla. 1st DCA
1982) (holding it was an abuse of discretion to dismiss petition
without leave to amend where the question leading to dismissal
was not previously raised or at issue). Cf. Pilla v. Sch. Bd. of Dade
Cnty., 655 So. 2d 1312, 1314–13 (Fla. 3d DCA 1995) (finding no
abuse of discretion where the school board sought to amend its
complaint to include two additional charges where it had
presented its case-in-chief and additional discovery may be
needed).
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III. Conclusion
In the absence of a showing of prejudice to Appellee, the ALJ
abused her discretion in disallowing amendment to the
Administrative Complaint. Accordingly, we reverse the final order
on appeal.
REVERSED and REMANDED.
B.L. THOMAS and MAKAR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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.
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