IN THE MATTER OF BEFORE THE MARYLAND Raafat Y. Girgis, M.D., STATE BOARD OF Respondent. PHYSICIANS License No. 31726 Case Nos. 2004-0246; 2007-0088; 2007-0721 FINAL DECISION AND ORDER Raafat Y. Girgis, MD. Girgis?) was charged by the Board on July 27, 2009 with committing immoral and unprofessional conduct in the practice of medicine for taking indecent sexual liberties with three female patients by touching and fondling their breasts without medical justification, by kissing two of the patients during purported medical examinations without their consent and while rubbing his groin against their bodies, and by putting his finger into one patient?s vagina without any medical justification. A two-day evidentiary hearing was held on March 23 and 24, 2010' before an Administrative Law Judge of the Office of Administrative Hearings. The ALJ issued a Proposed Decision finding that these allegations were true. After considering the entire record in this case, including the written and oral exceptions and responses to exceptions filed by the parties, the Board agrees. Dr. Girgis argues in his exceptions that the Board should reverse the factual findings that he used his medical practice to prey upon these patients. The ALJ, however, had the opportunity to observe all of the witnesses testify; and the ALJ 1 specifically found that the testimony of Patients A, and was credible and that the testimony of Dr. Girgis was not. A review of the record leads the Board to make the same credibility determinations as did the ALJ. The Board notes, as did the ALJ, that these three patients did not know each other, nor were they aware when they filed their complaints that any other complaint had been filed, yet their complaints were very similar. None of the patients had anything to gain by filing these complaints. None of these patients had filed a civil suit against Dr. Girgis, and none had filed any other civil suit or any administrative complaint against any him or any other health care provider. All of them were or had been employed in responsible positions for long periods of time; all had been regular patients of Dr. Girgis until these incidents occurred. The ALJ observed and commented on the demeanor of these witnesses while testifying and found that their testimony was credible and that Dr. Girgis?s testimony was not. The Board is reluctant to overturn such demeanor?based credibility determinations unless there are strong reasons in the record to do so. There are no strong reasons in this record that would prompt the Board to overturn these credibility determination-s. Dr. Girgis pointed out in his exceptions that there were small variances in the patients? statements, but the Board, like the ALJ. finds them inconsequential. For example, the patients were at times more graphic and specific in their testimony than in their written complaints; but this is to be expected. The Board has considered the entire record in this case, including the entire evidentiary and procedural record made before the ALJ, the Proposed Decision, and the written exceptions and responses to exceptions filed by the parties. FINDINGS OF FACT Except as noted below, the Board adopts the Findings of Fact numbers 1-65 proposed by the ALJ, as well as those findings of fact set out in the ?Discussion? section of the proposed decision. The Proposed Decision is incorporated into this Final Decision and Order and is attached as Attachment A. Dr. Girgis took indecent sexual liberties with three female patients by touching and fondling their breasts without medical justification, by kissing two of the patients during purported medical examinations without their consent and while rubbing his groin against their bodies, and by putting his finger into one patient?s vagina without any medical justification. The exceptions correctly point out that the ALJ was in error on one minor point. The ALJ stated in finding number 10 that there was no record of Patient A having any breast examinations by Dr. Girgis in the next nine visits after July 18, 2000. This finding was in error, since there is some notation in the record indicating that Patient A may have had one breast examination during those next nine visits. This notation, however, concerns a visit that took place on October 23, 2002, and has no bearing on the issues of this case. The Board Will modify finding number 10 to state that during Patient A?s next nine visits after July 18, 2000, there was one notation indicating that patient A may have had a breast examination. In finding number 15, the ALJ found that during the relevant period, ?the Respondent?s office had no policy requiring a female assistant to be present in the examination room for vaginal and/or breast exams on a female patient." The Board adopts this finding to the extent that it means that there was no meaningful policy on chaperones. The policy that existed, according to Dr. Girgis?s own witnesses, did not come into play unless, in any particular case, Dr. Girgis specifically asked for a chaperone. In other words, the policy was that Dr. Girgis determined for himself when and if he needed a chaperone in the room. While the existence of such a weak policy on chaperones is not a violation in itself, it certainly is not a defense to a charge that a physician sexually preyed upon any particular patients on occasions when he chose not to call a chaperone into the room. CONCLUSIONS OF The Board adopts the Conclusions of Law proposed by the ALJ in the attached Proposed Decision, as well as those conclusions of law set out in the ?Discussion? section of the Proposed Decision. The Board has no hesitation in ruling that kissing patients without their consent during purported medical examinations, and touching patients breasts or vaginas without any medical purpose during purported medical examinations, constitutes both immoral and unprofessional conduct in the practice of medicine within the meaning of Md. Health 000. Code Ann. SANCTION Dr. Girgis used his position as a physician to sexually molest women who relied on him for their medical treatment. He has repeatedly used the authority and trust granted to him as a physician to subject his patients to demeaning sexual assaults.1 Dr. Girgis?s conduct is a disgrace to the medical profession, and he would constitute a danger to his patients if allowed to continue to practice. The Board will not tolerate a The Board understands that, while using the word ?assaults,? it is not adjudicating a criminal offense. 4 physician who uses the privileges of his profession to prey upon vulnerable patients. Any sanction less than a revocation would be inappropriate. ORDER It is therefore ORDERED that the medical license of Raafat Y. Girgis, M.D., license number 31726, be, and it hereby is, and it is further ORDERED that this is a Final Order of the Board and, as such, is a PUBLIC DOCUMENT pursuant to Md. State Gov?t Code Ann. 10-611 et seq. (2004). /2/27//0 Date ?n T. Ba?pa?s?a?ul?lou ?puty Director a ryland State Boar of Physicians NOTICE OF RIGHT TO APPEAL Pursuant to section 14-408(b) of the Health Occupations Article, Dr. Girgis has the right to seek judicial review of this decision. Any petition forjudicial review shall be filed within 30 days from the date this Final Decision and Order is mailed. This Final Decision and Order is mailed on the date it is executed, which is set out above. The petition forjudicial review shall be made as provided for in the Maryland Administrative Procedure Act, Md. Code Ann., State Gov?t 10-222, and Maryland Rules 7?201 et seq. If Dr. Girgis files an appeal, the Board is a party and should be served with the court?s process at the following address: Maryland State Board of Physicians, cIo Yemisi Koya, Chief ofrCompliance, 4201 Patterson Avenue, Baltimore, Maryland 21215. The administrative prosecutor is not involved in the circuit court process and need not be served or copied on pleadings filed in the circuit court. MARYLAND STATE BOARD BEFORE DEBORAH H. BUIE, OF PHYSICIANS AN ADMINISTRATIVE LAW IUDGE V. OF THE MARYLAND OFFICE RAAFAT Y. GIRGIS, M.D., OF ADMINISTRATIVE HEARINGS RESPONDENT OAH NO.: License No. D31726 PROPOSED DECISION STATEMENT OF THE CASE ISSUES SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION CONCLUSIONS OF LAW PROPOSED ORDER STATEMENT OF THE CASE On July 27, 2009, the Maryland State Board of Physicians (Board or SBP) issued charges under the Maryland Medical Practice Act (Charges) against Raafat Y. Girgis (Respondent) for immoral or unprofessional conduct in the practice of medicine under the Medical Practice Act (Act). Md. Code Ann., Health Occ. (2009). The Board forwarded the Charges to the Of?ce of the Attorney General for prosecution. I held a hearing on March 23 and 24, 2010, at the Office of Administrative Hearings (OAH), 11101 Gilroy Road, Hunt Valley, Maryland. Md. Code Ann, Health Occ. 14-405(a) (2009). Wharton Levin Ehrmantraut Klein, represented the Respondent. Janet Klein Brown, Assistant Attorney General and administrative prosecutor, represented the Board. I closed the record on March 24, 2010, at the conclusion of the hearing. ATTACHMENT A Procedure in this case is governed by the contested case provisions of the Administrative Procedure Act, the Rules of Procedure for the Board, and the Rules of Procedure of the OAH. Md. Code Ann, State Gov?t 10-201 through 10-226 (2009); Code of Maryland Regulations (COMAR) 10.32.02, and 28.02.01. ISSUES The issues in this case are: 1. Whether the Respondent is guilty of immoral or unprofessional conduct in the practice of medicine with regard to his treatment of Patients A, B, and/or and, if so, 2. What disciplinary action is appropriate. SUMMARY OF THE EVIDENCE ELhihiE I admitted the following Joint exhibits as follows: I Joint Ex. 1 Respondent?s treatment records of Patient A Joint Ex. 2 Respondent?s treatment records of Patient Joint Ex. 3 Respondent?s treatment records of Patient I admitted the following exhibits on behalf of the Board: SBP Ex. 1 Complaint from Patient A, received 10/14/03 SBP Ex. 2 Correspondence to Respondent, dated 11/19/03 SBP EX. 3 Correspondence to Respondent, dated 6/11/04 SBP Ex. 4 Correspondence from Respondent, received 6/18/04 SBP Ex. 5 Complaint from Patient B, received 8/ 15/06 SBP Ex. 6 Complaint from Patient C, dated 4/23/07 SBP Ex. 7 Correspondence from Patient B, dated 2/24/09 SBP Ex. 8 Diagram of office floor plan1 SBP Ex. 9 Diagram of office ?oor plan2 SBP Ex. 10 Diagram of office ?oor plan3 SBP Ex. 11 Board Investigative Report4 SBP Ex. 12 Clinical Notes for Patient B, dated 6/17/05 I admitted the following exhibits on behalf of the Respondent: Resp. Ex. 1 Diagram of office floor plan Resp. Ex. 2 Photos of office space Resp. Ex. 3 Office Policy Testimony The State presented the testimony of Patients A, B, and C. The Respondent testified on his own behalf and presented the following witnesses: 0 Jaime Handley, former employee - Jacqueline Patel, former employee 0 Jennifer Chittum, current employee 0 Carolyn Klaschus, current employee FINDINGS OF FACT Having considered all of the evidence presented, I find the following facts by a preponderance of the evidence: 1 Diagram contains markings placed by Board witness, Patient A 2 Diagram contains markings placed by Board witness, Patient 3 Diagram contains markings placed by Board witness, Patient 4 This exhibit was the subject of a stipulation: the Investigative Report states what would have been the testimony of Board witness, Patricia Bramlet. 1. At all times relevant to this proceeding, the Respondent was licensed to practice medicine in the State of Maryland. The Respondent was originally licensed to practice medicine in Maryland on December 11, 1984, under license number D31726. 2. At the time of the acts alleged in this case, the Respondent worked in the general practice of internal medicine at a private practice, located at 724 Maiden Choice Lane, Catonsville, Maryland. His practice consisted of a majority of geriatric patients. 3. Also, at the time of the acts alleged in this case, the Respondent held hospital privileges at Northwest Hospital Center and Saint Agnes Healthcare. 4. At the time of the alleged acts in this case, the office space used as the Respondent?s private practice was such that the waiting room was very closely situated next to the primary examination room. 5. At the time of the alleged acts in this case, the Respondent did not have a written policy requiring the female staff to be present during a breast or vaginal examination of female patients. 6. At the time of the alleged acts in this case, the Respondent routinely conducted examinations of female patients without providing a gown or sheet. 7. None of the women employed by the Respondent in his practice, such as receptionist, office assistant, and nurse practitioner, recall being present in the examination room during the office visits that are the subject of this case. Patient A 8. Patient A was a female patient who began seeing the Respondent for medical care in 1996, when she was thirty-two years old. 9. Patient A?s medical Visits with the Respondent took place at his office located in Catonsville, Maryland. She visited the Respondent?s office approximately two or three times a year for regular physical examinations. 10. Between July 18, 2000 and September 15, 2003, Patient A saw the Respondent for nine visits. On July 18, 2000, the Respondent documented that a breast and gynecological exam was to be done by her gynecologist. For Patient A?s next nine visits, the Respondent made no further notations in her medical records regarding breast examinations. 11. Patient A was scheduled for gynecological-related (fibroid tumors) surgery on September 18, 2003, with Dr. Griffin, and required the routine general health evaluation pre- operative clearances. On September 15, 2003, she visited the Respondent?s office and he conducted a pre?operative physical examination. 12. The Respondent performed a breast examination. Because Patient A?s gynecologist routinely conducted her breast exams, when asked by the Respondent to lay back and lift her blouse, she asked him why a breast exam was necessary. The Respondent did not provide an explanation. 13. The Respondent did not provide Patient A with a gown or a sheet. He did not offer to leave the room while she prepared to make herself available for the breast exam. 14. No female staff person was present during the breast examination. 15. During the relevant period of Patient A?s complaint, the Respondent?s office had no policy requiring a female assistant to be present in the examination room for vaginal and/or breast exams on a female patient. 16. The Respondent proceeded to lift Patient A?s bra with his hand. He lifted one cup and touched the breast, then lifted the other cup and touched the other breast. The Respondent touched each breast with two hands more than twice, working around the surface, lingering on each breast in a manner that caused Patient A to ask him if everything was okay. The Respondent commented that one breast was larger than the other. 17. The Respondent made a noise of pleasure while touching Patient A?s breasts. 18. Patient A was uncomfortable with the manner in which the Respondent had touched her breasts. His touch upon her breast felt sexual, like a caress, and not like a medical examination. 19. When the Respondent backed away from the exam table, Patient A saw that he had an erection. The Respondent sat down on the desk chair and placed his exam board upon his lap, covering the bulge in his pants. 20. Immediately upon leaving the Respondent?s office, Patient A called her sister and told her about the Respondent?s actions. She also told another sister and her gynecologist. Her gynecologist provided her with the address to make a complaint. 21. Patient A never returned to the Respondent?s medical practice. She filed a written complaint with the Board on October 14, 2003. 22. Patient A?s written complaint filed with the Board stated in pertinent part: He examined my breasts. However, [the Respondent] is fully aware that I have a regular [The Respondent] then asked me to sit up, he continued to feel my breasts and make comments about their contrast. He repeatedly felt my breasts while I was sitting up and commentin that they felt ?excellent,? no problem.? However, he did not stop feeling on them. When he stopped the alleged examination, I noticed that as he returned to his chair he had to adjust his lower body parts. This exam conducted by [the Respondent] made me feel extremely uncomfortable and violated. (SBP Ex. 1) 23. The Board?s Compliance staff conducted a telephone interview of Patient A on September 1, 2004 as part of its investigation. Patient 24. Patient B, a female, began seeing the Respondent for routine medical care in January 2001. 25. In early 2006, the Respondent hired a Nurse Practitioner, J. Patel. At that time, the Respondent notified his patients that Ms. Patel would be providing medical services such that, at a given appointment, patients could expect to see either him or Ms. Patel. 26. When presented with the notification that required her signature of acknowledgement, Patient refused to sign. She did not want to be seen by any other provider but the Respondent. 27. In March 2006, at the age of fifty-four, Patient sought medical care from the Respondent, complaining of extreme back pain. On March 6, 2006, she visited his office. 28. Patient was escorted to the examination room by an office assistant and directed to sit in the chair. There was no hospital gown or sheet provided. 29. Upon the Respondent?s entry in the room, he discussed Patient B?s and directed her to get on the exam table. Patient complied and sat on the table with her legs extending down the front side of the table. 30. The Respondent faced Patient B, took her blood pressure and began to touch the back area where Patient indicated she was experiencing pain. He pressed against Patient B?s right knee and rubbed his groin area against her knee, kissed her on the mouth, and placed his hand under her blouse, while pushing up the left side of her bra. 31. The Respondent then grabbed some paper towels, reached down into his waistband, and wiped himself. 32. Patient pulled her bra down, got down from the exam table, and left the exam room. She did not report the Respondent?s actions to anyone at the office. She stopped at the front desk, paid her required co-pay, and received a follow-up appointment for March 20, 2006. 33. The Respondent gave Patient a prescription for the pain. The pain medication did not relieve Patient B?s She remained in a lot of pain. 34. Patient returned to the Respondent?s office for her follow?up appointment to receive treatment for the continued pain. Once again, the Respondent rubbed his groin area against Patient B?s knee, kissed her on the mouth, and pushed up her bra on the left side. He touched her exposed left breast with his hand. 35. In a similar fashion as what occurred on March 6, 2006, the Respondent wiped down in the area of his genitals with paper towels. 36. Patient believed he had ejaculated. 37. Patient expressed to the Respondent that his behavior was ?sick? or ?disgusting.? She did not tell anyone at the office about his actions and she did not return. 38. The Respondent referred Patient for a work?up at the'lab and on March 23, 2006, Patient did go to the lab for blood work. 39. Patient found another primary care physician. He referred her for counseling. 40. Patient told a girlfriend, who is a nurse, about the Respondent?s actions and she encouraged Patient to file a complaint. She also told her dentist with whom she had an appointment a few days later. 41. On August 14, 2006, Patient filed a complaint with the Board. 42. Patient B?s written complaint filed with the Board stated in pertinent part: Suddenly, as I was sitting on the table, [the Respondent] started rubbing his groin area against me, kissed me and rubbed by left breast. I was shocked, got up and mumbled a few things and left. I was quite distraught and not thinking clearly and returned to [the Respondent] for my followup appointment on March 20, 2006. After [the Respondent] did the routine testing and discussed my pain, he again started rubbing against my knee and kissed 43. Patient was too embarrassed to disclose in her complaint to the Board that she believed the Respondent had ejaculated on both occasions. She first mentioned the ejaculations to the Board prosecutor. 44. Patient B?s lab results from the March 23, 2006 blood tests were abnormal. 45. The Respondent never sent Patient a written communication about the abnormal lab results. 46. Patient received three phone calls from the Respondent?s office on August 30, 2006; one call from the Respondent?s office on September 14 and 28, 2006, respectively; and one call from the Respondent?s office on October 12, 2006. She viewed the incoming calls on the caller-id and did not answer them. 47. The Respondent left at least one message asking Patient how she was doing. The message did not reference the lab results. Patient 48. In January 2007, Patient C, a fifty-six year?old female, was a patient of the Respondent?s; he was treating her for depression and a skin rash. Patient and her husband had been patients of the Respondent since 1999. 49. The Respondent was treating the skin rash with antibiotics and the depression with Prozac and Xanax. In addition, he had referred Patient to a dermatologist. 50. On January 11, 2007, Patient had an office visit to follow?up with the dermatologist?s report. The dermatologist had prescribed Stromectal, but Patient was afraid to take the medication. She complained of recent soreness in the roof of her mouth and soreness in her vagina. 51. Patient?C was presenting with lesions on her back, buttocks, and breast areas. The Respondent diagnosed eczema, with a rule out of fungal infection. He recommended the Patient return in one week. 52. On January 18, 2007, Patient returned for an office visit. The itching from the rash was better. 53. Patient was escorted to an exam room by an office assistant and was not given a gown or sheet. The Respondent came into the room and Patient was sitting on the exam table. He lifted her shirt and bra and placed his stethoscope in the area of her heart. 54. The Respondent moved the stethoscope away from the heart, lower toward the breast and began to move the stethosc0pe around the breast. He touched both breasts, both with the stethoscope and his hand. 55. This touching felt like a sexual fondling to Patient and she began to feel anxious about the Respondent?s actions. 56. After using the stethoscope, the Respondent asked Patient to lie down and undo her pants zipper. She complied and the ReSpondent penetrated her vagina with his finger. He told her this was necessary to see if she had a yeast discharge, a side effect of the antibiotics. He used no swabs, gloves, or instruments. 57. At some point, during this visit, and while Patient was sitting on the exam table, the Respondent kissed her on the mouth, in a pecking fashion. 58. The Respondent?s assessment of Patient on January 18, 2007 was cellulitis, an infection of the skin. 10 59. Patient was disoriented by what had occurred; however, while at the front desk, she remembered that the Respondent had not given her the prescription. She asked the receptionist about the prescription and was told she could go back to the Respondent?s office and get it. 60. Patient went to the office and saw the Respondent standing behind his desk Wiping his fingers with a Kleenex tissue. She got her prescription and gave the Respondent a disgusting look. 61. Patient never returned to the Respondent?s office. 62. After some days passed, Patient told her husband about what had occurred and they both sought a new primary care physician. 63. On April 23, 2007, Patient filed a written complaint with the Board. 64. Patient C?s written complaint filed with the Board stated in pertinent part: seemed to me during my exam that he took special interest in feeling my breasts. I told him my mouth [was] sore and raw, he said antibiotics can cause yeast infections in moist warm places and at that point he put his hand in my private area (vagina) to see if there was any kind of discharge as I was sitting sideways on exam table it seemed as if he was pushing rubbing against my right side which would be my thigh and touching my breasts and he kissed me on my lips two or three He forgot to give me my prescription so I asked the receptionist ifI could ask for it. He was in the back office wiping each of fingers with a Kleenex 65. Patient is still receiving treatment for depression at Sheppard Pratt. DISCUSSION I. Background Burden of Proof and Standard of Care The Board has charged the Respondent with violating the following subparagraphs of section 14-404(a) of the Health Occupations Article: 11 Subject to the hearing provisions of 14?405 of this subtitle, the Board, on the affirmative vote of a majority of the quorum, may reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee: (3) Is guilty of Immoral conduct in the practice of medicine; or (ii) Unprofessional conduct in the practice of medicine;5 Md. Code Ann, Health Occ. (Supp. 2009). In addition, section l4?404(a) of the Health Occupations Article is further defined by COMAR 10.32.17, which provides in pertinent part as follows: .03 Sexual Misconduct. A. Individuals licensed or certified under Health Occupations Article, Titles 14 and 15, Annotated Code of Maryland, may not engage in sexual misconduct. B. Health Occupations Article, and 15-3146), Annotated Code of Maryland, includes, but is not limited to, sexual misconduct. .02B (2) Sexual Impropriety. "Sexual impropriety? means behavior, gestures, or expressions that are seductive, sexually suggestive, or sexually demeaning to a patient or a key third party regardless of whether the sexual impropriety occurs inside or outside of a professional setting. "Sexual impropriety" includes, but is not limited to: Failure to provide privacy for disrobing; (ii) Performing a pelvic or rectal examination without the use of gloves; (3) "Sexual misconduct" means a health care practitioner's behavior toward a patient, former patient, or key third party, which includes: Sexual impropriety; 5 Prior to June 1, 2007, section of the Health Occupations Article read: ?Is guilty of immoral or unprofessional conduct in the practice of medicine.? 12 Sexual violation; (4) Sexual Violation. "Sexual violation" means health care practitioner-patient or key third party sex, whether or not initiated by the patient or key third party, and engaging in any conduct with a patient or key third party that is sexual or may be reasonably interpreted as sexual, regardless of whether the sexual violation occurs inside or outside of a professional setting. "Sexual violation" includes, but is not limited to: (V) Touching the patient's breasts, genitals, or any sexualized body part. . .. The Board asserts that the Respondent is guilty of immoral or unprofessional conduct in the practice of medicine by engaging in inappropriate behavior with patients A, B, and C, while providing them with medical care. Specifically, the Board asserts that on SeptemberlS, 2003, the Respondent, while performing a medical examination of Patient A without a chaperone present, touched her breasts in a manner that does not constitute a medically accepted technique and in a manner that was sexually suggestive. The Board further asserts that on March 6, 2006 and March 20, 2006, the Respondent performed an examination of Patient without a chaperone present and that while doing so, rubbed his groin against her knee, touched one of her breasts, and kissed her. Finally, the Board also charges that on January 18, 2007, the Respondent kissed Patient on the lips; lifted up her blouse and bra and felt one breast with his hand; and requested her to unzip her pants, then inserted his finger in her vagina. The ReSpondent was not wearing gloves at any time, and there was no chaperone present. 13 In order to uphold the charges regarding Patients A, B, and C, I must find that the Respondent engaged in immoral or unprofessional conduct in the practice of medicine. The Maryland courts have de?ned the meaning of the phrase ?in the practice of medicine? in the context of section In inncan v. Maryland Board of Physician Quality Assurance, 380 Md. 577, 596?597 (2004), the Maryland Court of Appeals reviewed its rulings addressing the phrase as follows. In McDonnell 12. Commission on Medical Discipline, 301 Md. 426, 483 A.2d 76 (1984), we first considered what "in the practice of medicine" meant in the context of We were asked to determine whether a physician who attempted to intimidate witnesses scheduled to testify against him in a medical malpractice action could be disciplined for "[i]mmora1 conduct of a physician in his practice as a physician," under Md.Code Ann. (1957, 1980 Repl.Vol.), Art. 43, 130(h)(8), the predecessor to McDonnell, 301 Md. at 428, 483 A.2d at 76. We resolved that Dr. McDonnell's conduct, although "improper and not to be condoned," did not occur "in his practice as a physician.? 301 Md. at 434, 483 A.2d at 80. We reasoned that the meaning of the phrase "practice as a physician" was limited "to matters pertaining essentially to the diagnosis, care or treatment of patients." 301 Md. at 436, 483 A.2d at 80. We agreed with Dr. McDonnell?s concession, however, that the classic illustration of 'immoral conduct of a physician in his practice as a physician' is the commission of a sex act on a patient, while the patient is under the doctor's care." 301 Md. at 436 n. 5,483 A.2d at 80 n. 5. In Board of Physician Quality Assurance v. Banks, 354 Md. 59, 72?73, 729 A.2d 376, 383 (1999), we most recently examined the phrase "in the practice of medicine" in In Banks, we rejected the argument that McDonnell should be read as precluding a physician from being sanctioned under the statute for committing acts of sexual harassment against colleagues in the workplace. Id. Dr. Bank?s conduct included his unwelcome sexual comments and inappropriate touching, squeezing, and pinching of the anatomy of various female employees who worked at a hospital. 354 Md. at 62-64, 729 A.2d at 378. We rejected Dr. Bank?s argument that "a physician may only be sanctioned under if he or she is in the immediate process of diagnosing, evaluating, examining or treating a patient and engaged in a non-clerical task." 354 Md. at 73, 729 A.2d at 383. Such an "approach so narrowly construes that it would lead to unreasonable results and render the statute inadequate to deal with many situations which may arise." Id. Rather, Dr. Bank's conduct was a threat to patients and was, thus, "in the practice of medicine. We stated that 14 The Board of Physician Quality Assurance is particularly well- qualified to decide, in a hospital setting, whether specified misconduct by a hospital physician is sufficiently intertwined with patient care to constitute misconduct in the practice of medicine. In light of the deference which a reviewing court should give to the Board?s interpretation and application of the statute which the Board administers, we believe that the Board's decision in this case was warranted. When a hospital physician, while on duty, in the working areas of the hospital, sexually harasses other hospital employees who are attempting to perform their jobs, the Board can justifiably conclude that the physician is guilty of immoral or unprofessional conduct in the practice of medicine. 354 Md. at 76?77, 729 A.2d at 385. cDonnell and Banks are persuasive authorities in the present case. Although not a holding in McDonnell, we agreed with the principle that a physician acts in the practice of medicine by committing a sex act on a patient "under the doctor's care." McDonnell483 A.2d at 80 n. 5. Moreover, Banks indicates that if the physician's misconduct relates to the effective delivery of patient care, the misconduct occurs in the practice of medicine. Banks, 354 Md. at 74, 729 A.2d at 384. In inucan, the Court of Appeals found that ?Finucan used the physician-patient relationship for purposes of facilitating the engagement of current patients in sexual activities.? Finucan, 380 Md. at 603. He ?exploited his knowledge of [several current female] patients and their families for his own personal gratification, using his medical practice as a springboard, then as a cover, for his sexual adventures, to the detriment of his patients.? Id. at 599. The court concluded: In each episode, Finucan had, or reasonably could be perceived to have, a vested personal interest in his choice of treatment for his patients. His recommendations for medical care in some instances appear to have been based solely on his own interests. His creation of these irreconcilable con?icts of interest compromised his professional relationships with these patients and their families. Finucan's creation of these dual relationships thus was connected with his medical practice and was "in the practice of medicine." Id. at 600. 15 As the above cases make clear, immoral or unprofessional conduct alone is not grounds for disciplinary action. Rather, the conduct must impact patient care. Thus, the Board?s charges in this case involving Patients A, B, and hinge upon the context of the Respondent?s behavior and whether his actions occurred under the guise of providing professional care. In each of these cases, they clearly did and in each, he exploited and severely violated his Patients? trust in him as a medical professional. II. Charges Patient A On September 15, 2003, Patient A saw the Respondent for a medical appointment. The purpose of the visit was to obtain a pre-surgery evaluation. During this appointment, she was examined by the Respondent and he inappropriately made sexual contact with her. The evidence established that Patient A was placed in the exam room, without a gown or sheet. According to Patient A, she was left alone in the exam room with the Respondent and lifted her blouse and bra for the examination of her heart and lungs. The Respondent performed an examination of Patient A?s heart and lungs then told her to lay back for a breast examination. Patient A stated that she asked why a breast exam was necessary and he provided no clear explanation. Patient A then described an examination of her breast that she could describe no other way but to state that it was like ?caressing? and ?it made me feel so dirty.? Patient A demonstrated with a mannequin how the Respondent moved around each of her breast with his hands ?several times? such that she asked him if everything was okay. She maintained that he replied that everything was fine, yet continued to move his hands around her breasts. Patient A stated that the Respondent made a ?noise of pleasure,? while touching her 16 breasts, and when he backed away from her, she observed an erection in his genital area of his pants. Patient A stated that she put her clothes back in place, left the office and immediately called her sisters and told them what had occurred. Patient Amaintained that she told her gynecologist and her pastor. Her gynecologist gave her the phone number for filing a complaint and on October 14, 2003 the Board received a complaint from her. The Respondent ?atly denied Patient A?s allegations and maintained that he did not do anything improper in the manner which he examined Patient A?s breasts. He maintained that the breast examination was medically necessary because Patient A was scheduled for a hysterectomy and if there was a cancerous lump discovered, it would impact the scope of that surgery. The Respondent stated that Patient A had previously been diagnosed with a lump in her breast. He conceded, however, during cross examination, that the previous mass found in Patient A?s breast was not a ?lump? but rather a benign that was evacuated. (October 2001). He referred to the documentation in the medical records whereby he noted that he had done a breast exam and found ?no masses.? Finally, the Respondent challenged Patient A?s assertion that there was no chaperone present during the examination, stating: I?m sure someone was there because I always did.? He further maintained: ?it would have been Jaime or Carolyn.? The Respondent presented testimony from his office staff, Carolyn, Jaime, and Jennifer. While both Carolyn and Jaime testified that the Respondent was a wonderful employer and an excellent doctor, whose patients loved him, neither had a specific recollection about being present during the examination Patient A. Both women conceded that there was no written office policy about chaperones being present and that largely when the Respondent was in the examination room with female patients, he was alone with them. 17 Jennifer testified and she is the current office manager (since August 2005). She maintained that ?in the last seven months,? the Respondent has developed a policy that requires her to be present during the examination of all female patients. I found Patient A to be an extremely credible witness who testified in a manner that was remarkably consistent with her earlier statements provided in her written complaint. Patient A was clear in her account and was understandably and appropriately emotional while testifying. She also maintained good contact while testifying and did not waver in her account during cross examination. The Respondent, however, provided a vague picture of what occurred in his practice when female patients required a breast or vaginal examination. He admitted that ?we don?t give gowns? to patients. After stating earlier in his testimony that he ?always? had a chaperone present, he later stated that he ?usually? calls in his assistant to be present for breast exams and when this Administrative Law Judge asked him for clarification of ?usually? he changed his testimony to ?always.? Overall, I found that his testimony was simply not credible and at times, his demeanor was rather tentative, both on direct and while addressing questions posed during his cross examination. His testimony was self-serving in nature and came across as a desperate attempt to extricate himself from the serious charges made by Patient A. Thus, I find Patient A?s account to be more credible and trustworthy than the self-serving blanket denial offered by the Respondent and that her account is an accurate description of what took place in September 2003. Therefore, I conclude, after considering the evidence presented and the Re3pondent? statements, that his behavior toward Patient A on September 15, 2003, as described in the above 18 findings of fact and discussion, constitutes immoral and unprofessional conduct in the practice of medicine. Patient Patient was a fifty-four year-old female patient on March 6, 2006, when she came to the Respondent?s office complaining of back pain. According to Patient B, after being escorted to the examination room, the Respondent directed her to sit on the table where he proceeded to grind his groin against her knee and then kiss her. She maintains that he also placed his hand under her bra and touched her breast, after which he appeared to ejaculate; specifically, Patient maintains that he reached down the front of his pants with a paper towel and wiped himself. She further maintains that she returned on March 20, 2006, because she was still in so much pain and ?needed some help,? and the Respondent again rubbed his groin against her knee, kissed her, and touched one breast. According to Patient B, she told her girlfriend and her dentist what had occurred and the girlfriend encouraged her to file a complaint. She maintained that she waited five months to file a complaint because was kind of numb? after the experience and ?it [took] a while to realize what happened.? The Respondent ?atly denied Patient B?s allegations and maintained that she may be angry with him because she did not want to be seen by the nurse practitioner, whom he had hired during that time. The Respondent presented Patient as an irrational, uncompromising woman who refused to sign the office policy acknowledgement, agreeing to be seen by the nurse practitioner. He further stated that the reason for the multiple phone calls in the summer of 2006 was to tell her about the abnormal lab results. Finally, the ReSpondent suggested that Patient is likely unstable because of a history of receiving treatment. 19 Patient was also an extremely credible witness and testified in a manner that was largely consistent with her earlier statements provided in her written complaint. She explained that she was too embarrassed to tell the Board investigator about the Respondent ejaculating, believing that it would be perceived as sexual activity of a long duration that she allowed to occur.6 Patient was forthright in her account and, like Patient A, was understandably and appropriately emotional while testifying. She also maintained good contact while testifying and did not waver in her account during cross examination. Particularly compelling about Patient B?s testimony was the way she would turn and look directly at me with an expression of complete weariness and incredulity, as if she still could not believe what had occurred. Accordingly, I accept her testimony as credible and find her account to be more credible and trustworthy than the denial offered by the Respondent and that her account is an accurate description of what took place. While the Respondent suggested that I consider Patient to be unreliable due to her emotional instability, I found her demeanor to be extremely appropriate and her responses to be coherent and thoughtful. Therefore, I conclude after considering the evidence presented (including the testimony from the office staff, collectively, which does not support the Respondent?s argument that a chaperone Was present) and the Respondent?s statements, that his behavior toward Patient on March 6 and 20, 2006, as described in the above findings of fact and discussion, constitutes immoral and unprofessional conduct in the practice of medicine. Patient Patient was a forty?six year-old female patient of the Respondent?s who in January 2007 was seeing the Respondent for depression and a troublesome skin rash. On January 18, 2007, after being referred to a dermatologist, Patient returned to the Respondent?s practice for 6 Patient B?s statements made to the Board investigator were not admitted into evidence. 20 a follow-up Visit. She maintains that the Respondent lifted her shirt and bra and proceeded to use his stethoscope and hand to touch both her breasts. She maintains that the touching felt ?like a fondling.? Patient stated that the Respondent proceeded to ask her to lie down and unzip her pants to see if she had a discharge, then inserted his finger into her vagina. She further maintains that the Respondent was not wearing a glove and did not use a swab or other medical instrument. He did not wash his hands, but she observed him later wiping his fingers with a Kleenex tissue. In addition, Patient stated that the Respondent kissed her on the mouth. Patient maintains that she told her girlfriend, whose husband is an attorney, and he gave her the phone number of the Board. On April 23, 2007, she filed a written complaint. Patient never returned to the Respondent?s practice after January 18, 2007. The Respondent ?atly denied Patient C?s allegations. He stated that her allegations are not to be believed because her skin rash was so contagious that he would not have touched her without gloves. The Respondent concluded his direct examination by stating that ?it is not in my nature to do any of that,? referring to Patient C?s allegations. The Respondent provided a rather unemotional, bland denial of the charges related to Patient C. He basically asked that I accept his assertion that he simply would not do such things, both because it is not his nature and because he found Patient C?s skin rash too ?scary? to touch. The Respondent maintained that he would not have been alone with any of the three female patients because of his of?ce policy, yet none of his office staff corroborated his testimony. Indeed, the testimony of the current office manager corroborates the three patients? testimony because she (Jennifer) stated that it has only been in the last seven months that there has been a policy requiring a chaperone for female patients. 21 I viewed his testimony to be self-serving in nature and a dishonest attempt to discredit the statements of Patient and to extricate himself from her serious charges. However, I observed Patient during her testimony and found her to be extremely credible. I further found her testimony to be thoroughly consistent with her earlier statements included in her written complaint. Patient was controlled during her testimony and I viewed her as an honest, straightforward, credible and extremely candid witness. I found her to be assertive and adamant in her answers to questions posed by counsel and to maintain good contact without wavering throughout her testimony. When queried on cross-examination about inconsistencies in the details of her allegations, Patient further explained that so much about the experience was troubling causing her to ?block[ing] it out.? Accordingly, I accept her testimony as credible and find her account to be more credible and trustworthy than the denial offered by the Respondent and that her account is an accurate description of what took place. Counsel for the Respondent argued that Patient C?s testimony cannot be relied upon because of her con?icting statements to Board investigators, first about whether the Respondent had kissed her before or after the exam and, second, about the whether the Respondent could have been touching her breasts because there were lesions in that area.7 While I note that Patient may have given different responses to the Board investigator on minor details, her testimony at the hearing was consistent with her written complaint. I find that she sufficiently explained any omissions she may have made to the Board investigator when she stated that she was so troubled by the events that she found herself blocking out certain details. She has continued treatment for depression at Sheppard Pratt and has benefitted 7 Patient C?s statements to the Board investigator were not admitted into evidence. 22 considerably from the treatment. At the hearing, she maintained that her current emotional state is the best she has felt in years. Therefore, I conclude after considering the evidence presented and the Respondent?s statements, that his behavior toward Patient on January 18, 2007, as described in the above findings of fact and discussion, constitutes immoral and unprofessional conduct in the practice of medicine. Respondent?s Arguments The Respondent raised several arguments in defense of his claim that he was not responsible for the behavior alleged by Patients A, B, and C. In essence, he argued that Patient A should not be believed because she does not appear to be the kind of meek woman who would permit a doctor to fondle her breasts and not report it to any one before leaving the office. In addition, the Respondent argued that the breast exam was medically necessary because of Patient A?s previous history of lumps. The ReSpondent argued that Patient is lying because she is angry at him for bringing in a nurse practitioner to see patients. He argued that it is not believable that he would do the same thing to her on two consecutive office visits. The Respondent also argued that Patient is not credible because she did not previously report the suspected ejaculation. As to Patient C, the Respondent argued that she has also provided inconsistent statements on whether he digitally penetrated her, and should not, therefore, be considered a credible accuser. I am not persuaded by the Respondent?s arguments. I cannot ignore the testimony of each of the three patients. I found that each of these patients presented a credible account of how the Respondent touched her in an inappropriate manner under the guise of providing legitimate 23 medical care. Regardless of inconsistencies in minor details provided the Board investigator, including the omission of the details related to the ejaculation, at the hearing, the former patients all testified consistently with what was alleged in their complaints to the Board. I am persuaded that Patient was too embarrassed to talk about the ejaculation. Finally, there was absolutely no link that was shown to exist among these patients nor was there any evidence to show that these patients somehow benefitted by filing false claims against the Respondent. In addition, these three patients were completely unrelated and had no contact with each other. The fact pattern in each of these cases was remarkably similar and it is difficult to imagine that three women independently fabricated accounts of such an egregious pattern of conduct. In each of the cases of the three patients, the Respondent?s behavior compromised his professional relationships with the patients and this behavior was clearly connected with his medical practice and was "in the practice of medicine." Sanctions After providing a licensed physician with the opportunity for a hearing under section 14? 405 of the Act, the Board may fine, reprimand, place on probation, or suspend or revoke the license of a physician found to have violated the Act?s provisions of section Specifically, the Board may suspend a license to practice medicine if the licensee "is guilty of immoral or unprofessional conduct in the practice of medicine." Md. Code Ann, Health Occ. 14?404 and (ii) (Supp. 2009). For the conduct set forth above, the State is seeking a three-year suspension of the Respondent?s medical license. The Respondent attempted to minimize his acts or to completely deny them altogether by asserting thatI should question the credibility of the witnesses who testified. As noted above, 24 however, the Respondent provided only self?serving testimony that I found to be inconsistent and completely lacking in credibility. In addition, he failed to provide any testimony and/or other probative evidence from others to effectively impeach the State?s witnesses. The complaining patients, on the other hand, provided testimony that was consistent with their written complaints and prior statements to the Board (in pertinent part), and none of them were effectively impeached on cross examination. Moreover, I saw nothing in any witness? demeanor to cast doubt on their credibility. This case involves the Respondent?s repeated pattern of egregiously Violating the Medical Practices Act. On several occasions, he committed glaring violations of section 14-404 and (ii) by exploiting his position of trust and inappropriately touching or otherwise making contact of a sexual nature with Patients A, B, and under the pretense of providing legitimate professional medical care. Each of these patients was traumatized by the Respondent?s actions. Given this repeated pattern of blatant conduct, I agree that the three?year suspension suggested by the Board is appropriate. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact and Discussion, I conclude, as a matter of law, that the Respondent violated section 14-404 and (ii) of the Act. Accordingly, I further conclude that the Board may discipline the Respondent. Md. Code Ann, Health Occ. PROPOSED DISPOSITION I PROPOSE that the charges filed by the Board on July 27, 2009 against the Respondent be and 25 I PROPOSE that the license of Raafat Y. Girgis, M.D., to practice medicine in the State of Maryland be SUSPENDED for three years. June 3, 2010 Date Decision Mailed Deborah H.Buie Administrative Law In #112887 NOTICE OF RIGHT TO FILE EXCEPTIONS Any party may file exceptions, in writing, to this Proposed Decision with the Board of Physicians within fifteen days of receipt of the decision. Md. Code Ann, State Gov?t 10?216 (2004) and COMAR 10.32.02.03F. The Office of Administrative Hearings is not a party to any review process. 26 Copies Mailed To: Raafat Y. Girgis, MD 724 Maiden Choice Lane Catonsville, MD 21228 Dana K. Schultz, Esquire Wharton, Levin, Ehnnantraut Klein 104 West Street PO Box 551 Annapolis, MD 21404?0551 Janet Klein Brown, Assistant Attorney General Administrative Prosecutor Office of the Attorney General 300 West Preston Street, Suite 207 Baltimore, MD 21201 Barbara K. Vona, Chief of Compliance State Board of Physicians 4201 Patterson Avenue Baltimore, MD 21215 C. Irving Pinder, Executive Director State Board of Physicians 4201 Patterson Avenue, 3rd Floor Baltimore, MD 21215 Sylvia Morgan, Paralegal Office of the Attorney General 300 West Preston Street, Suite 207 Baltimore, MD 21201 Robert G. Hennessy, M.D., Chairman State Board of Physicians Metro Executive Plaza .4201 Patterson Avenue, Third ?oor Baltimore, MD 21215 John Nugent, Deputy Counsel Department of Health and Mental Hygiene Office of the Attorney General 300 West Preston Street, 3rd Floor Baltimore, MD 21201 27