ALABAMA STATE BOARD OF MEDICAL EXAMINERS BEFORE THE MEDICAL LICENSURE COMMISSION Complainant, OF ALABAMA v. CASE NO. 01-027 OSCAR D. ALMEIDA, JR., MD. 9: Respondent. ORDER This matter is before the Medical Licensure Commission upon an application to reinstate his license to practice medicine in Alabama ?led by Oscar D. Almeida, MD. Dr. Almeida?s license was revoked by order of the Commission on April 29, 2002. On April 10, 2007, the Commission entered an Order to Show Cause requiring Dr. Almeida to appear and show cause why his application should not be denied. A hearing was held on November 28, 2007 . Dr. Ahneida was present together with his attorney, Robert A. Huffaker, Esq. James R. Seal, Esq. and Patricia E. Shaner, Esq., represented the Board of Medical Examiners. Wayne P. Turner, Esq. served as Hearing Of?cer. In its order revoking Dr. Almeida?s license, the Commission expressed its opinion that it would be a great loss to the medical community, and to the public in general, if a physician of Dr. Almeida?s obvious skill and ability would never again be able to practice medicine. The Commission also expressed the hope that Dr. Almeida would carefully consider the recommendations of the expert witness in the case and take the necessary steps to convince the Commission that he may be safely allowed to return to the practice of medicine. For the reasons set forth below, the Commission is now convinced that Dr. Almeida has in fact taken such steps and that it is not likely that the events which led to the revocation of his license will be repeated. Speci?cally, the evidence showed the following: 1. In July 2004, Dr. Almeida was evaluated by the Professional Renewal Center in Lawrence, Kansas. The assessment team stated in its report that ?with a reasonable degree of certainty, the assessment team ?nds Dr. Almeida ?t to continue the practice of medicine with skill and safety from the perspectives of physiological functioning, emotional well-being, and behavioral risk provided he follow the recommendations outlined below.? 2. In February 2006 Dr. Almeida had a follow up evaluation with the same professionals who had evaluated him in 2004. The conclusions and recommendations were similar to those set forth in the 2004 report. 3. Since the revocation of his license Dr. Almeida has completed signi?cant Continuing Medical Education hours with regard to professional boundaries. 4. In March 2005 Dr. Ahneida was issued a license to practice medicine in the state of Mississippi and has participated since that time with the Mississippi Professional Health Program. 5. Dr. Ahneida presented for Commission review numerous letters of support from physicians and other health care professionals who are familiar with the circumstances of his case. Based upon the above evidence, and based upon Dr. Almeida?s own testimony at the hearing, the Commission is now convinced that Dr. Almeida is quali?ed to practice medicine in the state of Alabama. Therefore, it is the Order of the Medical Licensure Commission that the license to practice medicine in Alabama of the respondent, Oscar D. Almeida, Jr., MD. be and the same is hereby REINSTATED. ENTERED this? 72 day W07. IE N. URLEY, ME. 5 Chai edicalLicens Commission of Alabama ALABAMA STATE BOARD OF MEDICAL EXAMINERS, BEFORE THE MEDICAL LICENSURE COMMISSION OF ALABAMA Complainant, V. CASE NUMBER 01-027 OSCAR D. ALMEIDA, JR., MD. Respondent ORDER TO SHOW CAUSE This matter is before the Medical Licensure Commission on a request for reinstatement of license filed by Oscar D. Almeida, Jr., MD. Accordingly it is the ORDER of the Medical Licensure Commission that Dr. Almeida appear at a hearing in which the date and time shall be pending, in the offices of the Medical Licensure Commission, 848 Washington Avenue, Montgomery, Alabama and show cause, if any he has, why such request for reinstatement should not be denied. ENTERED this 10day of April, 2007. Wayne P. Turner, Esq., Hearing Officer Medical Licensure Commission State of Alabama CC: IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA OSCAR 1). c: Petitioner, f3, CV-02-1222 3; j: v. '3 is; JERRY GURLEY, et al. Respondents. ORDER In accordance with the opinion and order of the Supreme Court of Alabama, Ex parte Medical Licensure Comm?n of Alabm 1022156, September 3, 2004] So.2d (Ala; 2004) and the order of the Alabama Court of Civil Appeals dated October 8, 2004, it is the order of this Court that the order of the Medical Licensure Commission of Alabama revoking the license to practice medicine in Alabama of the Petitioner, Oscar D. Almeida, 11:, be and the same is hereby DONE this 3 day of October,1_904. Counsel of Record ., I TRUMAN M. Hasazsaa Circuit Judge cot!? ABME :4 Notice: This Opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2004-2005 2011096 Medical Licensure Commission of Alabama v. Oscar D. Almeida, Jr. Appeal from Montgomery Circuit Court After Remand from the Alabama SuDreme Court YATES, Presiding Judge. This court, on June 27, 2003, affirmed the circuit court's judgment, ?without EH1 opinion. Medical Licensure Comm'n of Alabama v. Almeida, 2011096, June 27, 2003] So. 2d (Ala. Civ. App. 2003). The Alabama Supreme Court 2011096 has reversed this court's judgment and has remanded the case. EX parte Medical Licensure Comm'n of Alabama, [Ms. 1022156, September 3, 2004] So. 2d (Ala. 2004). Accordingly, the judgment of the circuit court is reversed, and the case is remanded for further proceedings or orders consistent with the supreme court?s opinion. REVERSED AND REMANDED. Crawley, Thompson, Pittman, and Murdock, JJ., concur. 1 Civil iikerson, Jr.. Clerk of_ the Court 9 AOhgalg'oi?NAiabama, do hereby certify the foregomg is}: fupiip true and correct copy of the mstrumen?s) herewr set out as same appg?of record in said court. Witness my hand this of . 20%. Clerk. Court of Civil Appeals of Alabama I or . Etrd? .ihmm_h This opinion is Subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. Notice: SUPREME COURT OF ALABAMA SPECIAL TERM, 2 0 04 1022156 Ex parte Medical Licensure Commission of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Medical Licensure Commission of Alabama Oscar D. Almeida, Jr.) (Montgomery Circuit Court, Court of Civil Appeals, 2011096) On Application for Rehearinq LYONS, Justice. 1022156 The opinion of May 14, 2004, is withdrawn, and the following is substituted therefor. The Medical Licensure Commission of Alabama ("the Commission") revoked the medical license of Oscar D. Almeida, Jr., based upon testimony of several of his former patients that he had engaged in sexual misconduct while he was rendering professional services. Vkagranted certiorari review in this case to determine whether the Court of Civil Appeals erred in affirming the trial court's judgment reversing the revocation by the Medical Licensure Commission of Alabama of Almeida's professional license. We reverse and remand. I. Facts and Procedural History The Alabama Board of deical Examiners ("the Board") received four complaints alleging that Almeida, a doctor practicing in the field of obstetrics and gynecology, had engaged in sexual misconduct while he was rendering professional services. After investigating the allegations, the Board filed.ea formal administrative complaint against 'Almeida, charging him with.violating Ala. Code 1975,1 and. the rules and. regulations of the Commission, 1Section Ala. Code 1975, provides: 1022156 specifically Ala. Admin. Code (Medical Licensure Commission) amd Ala. Admin. Code (Medical Licensure Commission) 2, and 3.3 "The Medical Licensure Commission.shall have the power and duty to suspend, revoke, or restrict any license to practice medicine in the State of Alabama Mmenever the licensee shall be found guilty on the basis of substantial evidence of [anprofessional conduct as defined herein or in the rules and regulations promulgated by the commission." 2Alabama Administrative Code (Medical Licensure Commission) defines "unprofessional conduct," in part, as "any act that is detrimental or harmful to the patient of the physician or detrimental or harmful to the health, safety, and welfare of the public, and which violates the high standards of honesty, diligence, prudence and ethical integrity demanded from physicians and osteopaths licensed to practice in the State of Alabama." 3Alabama Administrative Code (Medical Licensure Commission) defines "sexual contact," in part, as exual behavior or involvement with a patient including verbal or physical behavior which may reasonably be interpreted as romantic involvement with a patient regardless whether such involvement occurs in the professional setting or outside of it; may reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or both; or 3 1022156 A hearing was held before the Commission over the course of several months; the Commission received considerable testimony and evidence. The facts as stated.by the Commission reflect that the Commission heard testimony from three4 of Almeida's former patients, who provided explicit details of Almeida's conduct toward them in his office, which included inappropriate physical exams, winking and flirting, fondling and kissing, trying to make dates, and in one case, unbuckling his pants. Their testimony was supported by the testimony of doctors with whom Almeida's former patients had discussed Almeida's conduct toward them and by the testimony of former employees of Almeida. Almeida contended that the complaints were retaliation by a disgruntled colleague who bears a grudge against him. The Commission also heard testimony from two expert witnesses. Gene Abel, M.D., a who had been practicing for 15 years at that time and a nationally may reasonably be interpreted.by the patient as being sexual." 4While the Board's initial investigation was based on complaints it had received from four of Almeida's former patients, one of the four patients was dismissed during the course of the hearing. 1022156 recognized expert in the area of sexual misconduct by professional persons, testified for the_Board. He evaluated Almeida over a t?uee~day period and interviewed three of Almeida's former patients whose complaints formed the basis for the formal administrative complaint and a female sales representative who complained of two specific incidents of allegedly sexually inappropriate conduct by Almeida. Emu Abel concluded.that.Almeida crossed well?recognized sexual boundary lines in treating the three former patients and that Almeida should undergo treatment. Kimberly Ackerson, a who had practiced for seven and one-half years at the time of her testimony, testified for Almeida. She acknowledged that she is not an expert in the field of deviant sexual behavior and that her evaluation of Almeida for sexual misconduct in his professional capacity is the first one she had ever performed. Dr. Ackerson testified that she accepted Almeida's statements as true and that she rejected the complaining witnesses' allegations without interviewing those witnesses. Based upon the evidence presented at the hearing, the Commission found that Almeida had engaged in unprofessional 1022156 conduct under Ala. Code 1975, as that term is defined in Ala. Admin. Code (Medical Licensure Commission) and that he had had "sexual contact" with a patient as defined in Ala. Admin. Code (Medical Licensure Commission) 2, and 3. Based upon those findings, the Commission.revoked Almeida's license to practice medicine in .Alabama. Thereafter, Almeida filed in the' Montgomery Circuit Court a notice of appeal and a motion to stay the revocation order or, in the alternative, a motion for a preliminary hearing on the motion to stay. The circuit court granted the motion to stay and subsequently reversed the Commission's order, stating that the Commission did not have "substantial evidence" before Almeida's medical license. The circuit court also found that the Commission's refusal to order the Board to produce written statements of the complaining witnesses taken by the Board's attorney deprived Almeida of due process of law. The Commission appealed to the Court of Civil Appeals, which affirmed the circuit court's judgment, without an opinion. Medical Licensure Comm'n of Alabama v. Almeida, [Ms. 2011096, June 27, 2003]' So. 2d (Ala. Civ. App. 2003) (Crawley, 1022156 J., dissenting). This Court granted the Commission's petition for a writ of certiorari. II. Standard of Review Our review of the Commission?s order is controlled by Ala. Code 1975. Section 41-22-20(k) states: [Commission's] order shall be taken as prima facie just and reasonable and the [reviewing] court shall not substitute its judgment for that of the [Commission] as to the weight of the evidence on questions of fact." See also Evers v. Medical Licensure Comm'n, 523 So. 2d 414, 415 (Ala. Civ. App. 1987). This Court has further defined the standard of review of an agency ruling in Alabama as follows: "?Judicial review of an agency's administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency's actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited. by the gpresumption. of correctness which attaches to a decision by an administrative agency.'" Ex parte Alabama Bd. of Nursing, 835 So. 2d 1010, 1012 (Ala. 2001) (quoting Alabama Medicaid Agency v. Peooles, 549 So. 2d 504, 506 (Ala. Civ. App. 1989)). Analysis 1022156 The Commission first argues that its decision to revoke Almeida's medical license was supported by "substantial evidence," as that term has been defined by Alabama courts. To hold that it was not, the Commission argues, would be to substitute the reviewing court's judgment for that of the Commission's and would adversely impact all administrative agencies and boards charged with .the responsibility of regulating their respective professions. The Commission also argues that its failure to require the Board to furnish Almeida with written statements of the complaining witnesses taken by the Board's attorney was not a denial of due process. The Commission points out that before the hearing Almeida was given the opportunity to depose all relevant witnesses and to examine their statements, except those taken by the Board's attorney as part of trial preparation.5 Almeida contends that the Commission revoked his medical license on. the Ibasis of tavertly' flawed. factual findings unsupported by substantial evidence. Almeida specifically 5Arnici curiae the Medical Association of Alabama, the Medical Society" of ZMobile, the .Alabanm. Boards of IDental Examiners, Pharmacy, and. Chiropractic Examiners, and the Alabama Boards of Nursing and Podiatry have filed briefs in support of the Commission's position. 8 1022156 argues that the Commission's findings of fact were based in large part on witnesses who were not credible. Almeida also argues that the Commission's refusal to order production of the complaining witnesses' statements denied him due process of law. Almeida contends that while there is no constitutional right to discovery in an administrative proceeding, the Commission could.not deprive:hinlof meaningful discovery without running'afoul of constitutional protections. A. Was the Commission's Decision bV Substantial Evidence? The first issue before this Court is whether? the Commission's decision to revoke Almeida?s medical license was supported.by substantial evidence. This Court has consistently defined substantial evidence as "'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte Bowater, Inc., 772 So. 2d 1181, 1182 (Ala. 2000) (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)). Upon review of the record, we find that the Cbmmission's decision to revoke Almeida's license was supported by substantial evidence. 1022156 At the start of the hearing, the Commission heard testimony from three former patients of Almeida?s who had complained of Almeida's misconduct toward them. It was on their testimony that the Commission based its findings of fact. The first patient testified that after her exam, when no chaperone was present in the examining room, Almeida kissed .her. This same patient testified that on another visit when they met in his private office, they engaged in Open-mouth kissing and fondling. He attempted to remove her undergarments and when she resisted, he unbuckled his pants, which the patient interpreted as a request that she perform oral sex. The second patient testified that Almeida conducted improper vaginal examinations of her and that he had also "come on" to her in the form of winking and smiling at her and making comments regarding her looks during his medical examinations of her. The third patient testified that Almeida had engaged in sexual misconduct in the form of flirting with her during her examinations. This third patient also testified that Almeida had asked her to meet him at various places and had invited her to go on a trip with him, during which they could participate in a "threesome." 10 1022156 In addition to these three former patients whose complaints formed the basis for the administrative complaint filed against Almeida, the Commission heard testimony from a fourth former patient who provided explicit details of an improper vaginal examination Almeida had performed on her. The fourth patient's testimony that she left the office very upset after the improper examination was corroborated by one of Almeida's former employees who was working the front desk on the day'of the incident. The former employee testified that she remembered the fourth patient being very upset. to the point of tears, and that after this encounter she never saw the patient at Almeida's office again. Several doctors in the community also corroborated the testimony of some of Almeida's former patients based on information the patients had disclosed to them soon after their encountersl with Almeida. The Commission also heard testimony from_a female sales representative who frequently visited Almeida's office about two specific incidents of what she thought was sexually inappropriate conduct by Almeida. The sales representative alleged that Almeida made inappropriate advances toward her 11 1022156 and that Almeida insinuated.that they have a sexual encounter. Both incidents the sales representative described to the Commission were documented in letters she wrote to her employer, and, as a result of those letters, a male sales representative was assigned to Almeida's office. The Commission also heard testimony from one of Almeida's former nurses, who had also been a patient of Almeida's while she worked for him. While Almeida never performed an inappropriate examination of her, she testified that during other patients' exams he would engage in behavior that she deemed inappropriate, like making "smirking gestures towards the 3patient." This former? employee also testified. that Almeida was "touchy-feely" and that he paid more attention to patients who were young, petite, slender, and very attractive. Her testimony, coupled with that of the female sales representative, describes Almeida's general behavior and corroborates the descriptions of his behavior as testified to by the complaining witnesses. Dr. Abel's expert testimony also aided the Commission in its decision. As stated previously, Dr. Abel not only evaluated Almeida over a three-day period, but also 12 1022156 interviewed the complaining witnesses. ?Dr. Abel believed.that the testimony given by the complaining witnesses was truthful. He concluded that Almeida had crossed well?reCOgnized sexual boundary lines, that Almeida should undergo treatment for a sexual disorder, and that without such treatment he could not safely practice medicine and would pose a risk to patients. While this Court acknowledges that there were some inconsistencies in the testimony presented to the Commission, which the Commission noted in its order, the resolution of conflicting evidence is within the exclusive province of the Commissbmi. See, Alabama Dep't of Envtl. qut. v. Hagood, 695 So. 2d 48, 50 (Ala. Civ. App. 1997); cf. Hubbard Bros. Constr. Co. v. C.F. Halstead Contractor. Inc., 294 Ala. 688, 691, 321 So. 2d 169, 172 (1975). This rule is premised on the lproposition that the trier of fact here the Commission is in the best position to observe the demeanor and credibility?cxf the witnesses, especially 1J1 this case where the members of the Commission were members of the profession being regulated. See Ex parte Alabama Ins. Guar. 667 So. 2d 97, 101 (Ala. 1995). The members of the Commission. not only observed. the proceedings, they also 13 1022156 engaged in the proceedings by rigorously questioning the witnesses after the attorneys had completed their examination of the witnesses. Based upon the totality of the evidence, the Commission found that the inconsistencies in.the testimony were collateral to the central issue and unanimously found that the complaining witnesses presented credible testimony that Almeida had actually engaged in the behavior-described to the Commission. Because the Commission's decision was based on the testimony of three complaining witnesses, of an expert who had evaluated Almeida, and of numerous other witnesses whose testimony supported the allegations made by the Board, we conclude that the Commission?s unanimous decision to revoke Almeida's medical license was supported by substantial evidence. B. Did the Commission Denv Almeida Due Process of The second issue before this Court is whether the Commission denied Almeida due process by not requiring the Board to produce written statements taken by the Board's attorney during the investigation of reports by those persons 14 1022l56 who had complained of Almeida's conduct and who ultimately filed complaints against him. "'It has been generally recognized that there is no basic constitutional proceedings.'" EX oarte.Alabama Deo't of Envtl. qut., 627 So. 2d 927, 930 (Ala. 1993) (quoting Dawson v. Cole, 485 So. 2d l164, 1168 (Ala. Civ. App. 1986)). Such a matter is within the discretion of the administrative agency hearing the matter. See EX parte Civil Serv. Bd., 571 So. 2d 1125 (Ala. 1990). Nevertheless, "'the denial of prehearing discovery as applied in a particular case' could result in a due process violation." State Oil Gas Bd. of Alabama v. Anderson, 510 So. 2d 250, 256 (Ala. Civ. App. l987)(quoting Dawson, 485 So. 2d at 1168)(emphasis omitted). According to its order denying Almeida's motion to compel production of statements and prior testimony of complaining parties and other witnesses, the Commission denied that request on the basis that the statements were the work.product of the Board's attorneys and were therefore not discoverable. This ruling of the Cbmmission is :hi accordance with Rule Alan R. Civu P., whickL provides that Inaterials 15 1022156 produced in anticipation.of litigation are not discoverable by an adverse party, unless that party can show a substantial need for those materials and can show that he or she cannot obtain the substantial equivalent of the materials without undue hardship. EX parte State Farm Mut. Auto. Ins. Co., 386 So. 2d 1133, 1136 (Ala. 1980). The Commission's order also complies with Ala. Admin. Code (Medical Licensure Commission) which states: "The Commission may provide by order in a contested case that each party provide to the other parties a list of all witnesses to be called at the hearing and copies of all documents to be entered into evidence at the hearing. The Commission may authorize the parties to submit the testimony of witnesses by deposition upon oral examination in the manner prescribed in the Alabama Rules of Civil Procedure. The Commission may provide by order for such other limited discovery by the parties as is deemed necessary and prudent by the Commission or the hearing officer to ensure that the hearing is fairly conducted under the law; provided, however, that the parties shall not be permitted to prolong or unnecessarily delay the proceedings in contested cases for discovery purposes. However. no party to a hearing shall be entitled to discover the contents of any investigative files, records. including investigative reports, statementsJ summaries, or other? materials cOmpiled. and. accumulated In! the investigators. attorneys or staff of the Commissioni or the Board of Medical Examiners, pursuant to its ordinary and usual investigative function unless the document or statement in lieu of the actual witness is to be offered into evidence at the hearing." 16 1022156 (Emphasis added.) The record reveals that Almeida was aware of the identity of the complaining witnesses, that Almeida had the opportunity to depose those persons, and that the Commission ordered that the tape-recorded statements made by those parties during the Board's investigation be transcribed and made available to Almeida. Therefore, Almeida had ample opportunity to obtain the substantial equivalent of those statements without undue hardship. Furthermore, Almeida does not contend that the written statements were offered into evidence. Consequently, we do not find a due-process violation by the Commission in this aspect of the case. IV. Conclusion Because we conclude that the Commission's decision was supported by substantial evidence and that Almeida's due- process rights were not violated, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings or orders consistent with this opinion. APPLICATION OPINION OF MAY 14, 2004, OPINION REVERSED AND REMANDED. l7 1022156 Houston, See, Johnstone, Harwood, Woodall, and Stuart, JJ., concur. 18 Clt?? Notice: This opinion is subject to formal revision before publication in the advance sheets of Scuthern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate COurts, 300 Dexter Avenue, MontQOmery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2003?2004 1022156 Ex parte Medical Licensure Commission of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Medical Licensure Commission of Alabama v. Oscar D. Almeida, Jr.) (Montgomery Circuit Court, Court of Civil Appeals, 2011096) LYONS, Justice. 1022l56 The Medical Licensure Commission of Alabama ("the Commission") revoked the medical license of Oscar D. Almeida, Jr., based upon testimony of several of his former patients that he had engaged in sexual misconduct while he was rendering professional services. we granted certiorari review in this case to determine whether the Court of Civil Appeals erred in affirming the trial court's judgment reversing the revocation by the Medical Licensure Commission of Alabama of Almeida's professional license. We reverse and remand. I. Facts and Procedural History The Alabama Boand of Medical Examiners ("the Board") received four complaints alleging -that .Almeida, a. doctor practicing in the field of obstetrics and gynecology, had engaged in sexual misconduct while he was rendering professional services. After investigating the allegations, the Board filed.ai formal administrative complaint against Almeida, charging him.with violating Ala. Code 1975,1 and the rules and regulations of the Commission, lSection Ala. Code 1975, provides: "The Medical Licensure Commission.shall have the power and duty to suspend, revoke, or restrict any license to practice medicine in the State of Alabama whenever the licensee shall be found 2 1022156 specifically Ala. Admin. Code (Medical Licensure Commission) and Ala. Admin. Code (Medical Licensure Commission) 2, and 3.3 guilty on the basis of substantial evidence of [anprofessional conduct as defined herein or in the rules and regulations promulgated by the commission." 2Alabama Administrative? Code (Medical Licensure Commission) defines "unprofessional conduct," in part, as "any act that is detrimental or harmful to the patient of the physician or detrimental or harmful to the health, safety, and welfare of the public, and which violates the high standards of honesty, diligence, prudence and ethical integrity demanded from physicians and osteOpaths licensed to practice in the State of Alabama." 3Alabama Administrative Code (Medical Licensure Commission) defines "sexual contact," in part, as "[s]exual behavior or involvement with a patient including verbal or physical behavior which may reasonably be interpreted as romantic involvement with a patient regardless whether such involvement occurs in the professional setting or outside of it; may reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or both; or may reasonably be interpreted.by the patient as being sexual." 1022156 A hearing was held before the Commission over the course of several months; the Commission received considerable testimony and evidence. The facts as stated by the Commission reflect that the Commission heard testimony from three4 of Almeida's former patients, who provided explicit details of Almeida's conduct toward them in his office, which included inappropriate physical exams, winking and flirting, fondling and kissing, trying to make dates, and in one case, unbuckling his pants. Their testimony was supported by the testimony of doctors with whom Almeida's former patients had discussed Almeida's conduct toward them and by the testimony of former employees of Almeida. Almeida contended that the complaints are retaliation by a disgruntled colleague who bears a grudge against him. The Commission. also Iheard. testimony' fronl two expert witnesses. Gene Abel, D., a who had been practicing for 15 Iyears at that time and a nationally recognized expert in the area of sexual misconduct by professional persons, testified for the Board. He evaluated 4While the Board?s initial investigation was based on complaints ix; had received from fOur c?f Almeida's former patients, one of the four patients was dismissed during the course of the hearing. 1022156 Almeida over' a three-day' period. and. interviewed. four :of Almeida's former patients who had filed complaints regarding Almeida's conduct. Dr. Abel concluded that Almeida crossed well-recognized sexual boundary lines in treating those patients and that Almeida should undergo treatment. Kimberly Ackerson, a who had practiced for seven and one?half years at the time of her testimony, testified for Almeida. She acknowledged that she is not an expert in the field of deviant sexual behavior and that her evaluation of Almeida for sexual misconduct in his professional capacity is the first one she had ever performed. Dr. Ackerson testified that she accepted Almeida's statements as true and that she rejected the complaining witnesses' allegations without interviewing those witnesses. Based upon the evidence presented at the hearing, the Commission found that Almeida had engaged in unprofessional conduct under Ala. Code 1975, as that term is defined in Ala. Admin. Code (Medical Licensure Commission) and that he had had "sexual contact" with a patient as defined in Ala. Admin. Code (Medical Licensure Commission) 2, and 3. Based.upon those 1022156 findings, the Commission revoked Almeida?s licensetx>practice medicine in Alabama. Thereafter, Almeida filed in the Montgomery Circuit Court a notice of appeal and a motion to stay the revocation order or, in the alternative, a motion for a preliminary hearing (Hi the motion txa stay; The circuit court granted the motion to stay and subsequently reversed the Commission's order, stating that the Commission did not have "substantial evidence" before it to justify revoking.Almeida's medical license. Tim: circuit court also found. that the Commission's refusal to order the Board to produce written statements of the complaining witnesses taken by the Board's attorney deprived Almeida of due process of law; The Commission appealed tx: the Court c?f Civil Appeals, which affirmed the circuit court's judgment, without an opinion. Medical Licensure Comm'n of Alabama v. Almeida, 2011096, June 27, 2003] So. 2d (Ala. Civ. App. 2003) (Crawley, J., dissenting). This Court granted the Commission?s petition for a writ of certiorari. I II. Standard of Review Our review of the Commission's order is controlled by Ala. Code 1975. Section 41-22-20(k) states: 1022156 "[T]he [Commission's] order shall be taken as prima facie just and reasonable and the [reviewing] court shall not substitute its judgment for that of the [Commission] as to the weight of the evidence on questions of fact." See also Evers v. Medical Licensure Comm?n, 523 So. 2d 414, 415 (Ala. Civ. App. 1987). This Court has further defined the standard of review of an agency ruling in Alabama as follows: "'Judicial review of an agency?s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency's actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.'" Ex parte Alabama Bd. of Nursing, 835 So. 2d 1010, 1012 (Ala. 2001) (quoting Alabama Medicaid Agency v. Peonles, 549 So. 2d 504, 506 (Ala. Civ. App. 1989)). Analysis The Commission first argues that its decision to revoke Almeida's medical license was supported by "substantial evidence," as that term has been defined by Alabama courts. To hold that it was not, the Commission argues, would be to substitute the reviewing court's judgment for that of the 1022156 Commission?s and would adversely impact all administrative agencies and boards charged with the responsibility of regulating their respective professions. The Commission also argues that its failure to :require the IBoard. to furnish Almeida with written statements of the complaining witnesses taken by the Board's attorney was?not a denial of due process. The Commission points out that before the hearing Almeida was given the opportunity to depose all relevant witnesses and to examine their statements, except those taken by the Board?s attorney as part of trial preparation.5 Almeida_contends that the Commission revoked his medical license on the basis of overtly' flawed factual findings unsupported fur substantial evidence. Almeida specifically argues that the Commission?s findings of fact were based in large part on witnesses who were not credible. Almeida also argues that the Commission's refusal to order production of the complaining witnesses' statements denied him due process of law. Almeida contends that while there is no 5Amici curiae the Medical Association of Alabama, the Medical Society' of? Mobile, the .Alabama Boards of ZDental Examiners, Pharmacy, and Chiropractic Examiners, and the Alabama Boards of Nursing and Podiatry have filed briefs in support of the Commission's position. 8 1022156 constitutional right to discovery in an administrative proceeding, the Commission could not deprive hinxof meaningful discovery without running afoul of constitutional protections; A. Was the Commission?s Decision Supported by Substantial Evidence? The first issue before this Court is whether the Commission?s decision to revoke Almeida?s medical license was supported.by substantial evidence. This Court has consistently defined substantial evidence as "'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.?" Ex parte Bowater. Inc., 772 So. 2d 1181, 1182 (Ala. 2000) (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)). Upon review of the record, we find that the Commission?s decision to revoke Almeida's license was supported by substantial evidence. At the start of the hearing, the Commission heard testimony from three former patients of Almeida?s who had filed complaints against him with the Board. It was on their testimony that the Commission based its findings of fact. The first patient testified that Almeida conducted an improper vaginal examination and that after the exam, when no chaperone 1022156 was present in the examining room, he kissed her. This same patient testified that on another visit when they met in his private office, they engaged in open-mouth kissing and fondling. He attempted to remove her undergarments and when she resisted, he unbuckled. his pants, which the ;patient interpreted as a request that she perform oral sex. The second. patient testified that not only had the vaginal examinations conducted by Almeida been inapprOpriate, but he had also "come on" to her in the form of winking and smiling at her and making comments regarding her looks during his medical examinations of her. The third patient testified that Almeida. had. engaged. in sexual Inisconduct in. the form :of flirting with her during her examinations. This third patient also testified that Almeida had asked her to meet him at various places and had invited her to go on a trip with him, during which they could participate in a "threesome." In addition to these three former patients who had filed complaints against Almeida, the Commission heard testimony from a fourth former patient who provided explicit details of an improper vaginal examination Almeida had performed on her. The fourth patient's testimony that she left the office very lO 1022156 upset after the improper examination was corroborated by one of Almeida's former employees who was working the front desk on the day of the incident. The former employee testified that she remembered the fourth patient being very upset, to the point of tears. and that after this encounter she never saw the patient at Almeida's office again. Several doctors in the community also corroborated the testimony of some of Almeida's former patients based on information the patients had disclosed to them soon after their encounters with Almeida. The Commission also heard testimony from a female sales representative who frequently visited Almeida's office about two specific incidents of sexually inapprOpriate conduct by Almeida. The sales representative alleged that Almeida made inappropriate advances toward her and that Almeida insinuated that they have a sexual encounter. Both incidents the sales representative described to the Commission were documented in letters she wrote to her employer, and, as a result of those letters, a male sales representative was assigned.to.Almeida's office. The Commission also heard testimony from one of Almeida's former nurses, who had also been a patient of 11 1022156 Almeida's while she for I?nn While Almeida never performed an inappropriate examination of her, she testified that during other patients' exams he would make "smirking gestures in a sexual way.? This former employee also testified that Almeida was "touchy?feely? and that he paid more attention to patients who were young, petite, slender, and very attractive. Her testimony, coupled with that of the female sales representative, describes Almeida's general behavior and corroborates the descriptions of his behavior as testified to by the complaining witnesses. Dr. Abel's expert testimony also aided the Commission in its decision. As stated previously, Dr. Abel not only evaluated Almeida over a three?day period, but also interviewed the complaining witnesses. Dr. Abel believed that the testimony given by the complaining witnesses was truthful. He concluded that Almeida had crossed well-recognized sexual boundary lines, that Almeida should undergo treatment for a sexual disorder, and that without such treatment he could not safely practice medicine and would pose a risk to patients. While this Court acknowledges that there were some inconsistencies in the testimony presented to the Commission, 12 1022156 which the Commission noted in its order, the resolution of conflicting evidence is within the exclusive province of the Commission. See Hubbard Bros. Constr. Co. v. C.F. Halstead, 321 So. 2d 169, 172 (Ala. 1975); McKenzie v. American Bread Co. of Alabama, 579 So. 2d 667 (Ala. Civ. App. 1991). This rule is premised on the proposition that the trier of fact here the Commission is in the best position to observe the demeanor and credibility of the witnesses, especially in this case where the members of the Commission were members of the profession being regulated. See Ex parte Alabama Ins. Guar. Ass'n, 667 So. 2d 97, 101 (Ala. 1995). The members of the Commission not only observed the proceedings, they engaged in the proceedings by rigorously questioning the witnesses after the attorneys had completed their examination of the witnesses. Based upon the totality of tine evidence, the Commission found that the inconsistencies in the testimony were collateral to the central issue and unanimously found that the complaining witnesses presented credible testimony that Almeida had actually engaged in the behavior described to the Commission. 13 1022156 Because the Commission's decision was based on the testimony of three complaining witnesses, of an expert who had evaluated..Almeida, and. of :numerous other' witnesses 'whose testimony supported the allegations made in; the Board, we conclude that the Commission's unanimous decision to revoke Almeida's medical license was supported by substantial evidence. B. Did the Commission Deny Almeida Due Process of Law? The second issue before this Court is whether the Commission denied Almeida due process by not requiring the Board to pmoduce written statements taken Inf the Board's attorney during the investigation of reports by those persons who had complained of Almeida?s conduct and who ultimately filed complaints against him. "?It has been generally recognized that there is no basic constitutional right tijrehearing discovery in.administrative proceedings.?" Ex parte Alabama Dep't of Envtl. qut., 627 So. 2d 927, 930 (Ala. 1993) (quoting Dawson v. Cole, 485 So. 2d 1164, 1168 (Ala. Civ. App. 1986)). Such a matter is within the discretion of the administrative agency hearing the matter. See Ex parte Civil Serv. Bd., 571 So. 2d 1125 (Ala. 1990). 14 1022156 Nevertheless, "'the denial of prehearing discovery as applied in a particular case? could result in a due process violation." State Oil Gas Bd. of Alabama v. Anderson, 510 So. 2d 250, 256 (Ala. Civ. App. l987)(quoting Dawson, 485 So. 2d at ll68)(emphasis ommitted). According to its order denying Almeida?s motion to compel production of statements and prior testimony of complaining parties and other witnesses, the Commission denied_ that request on the basis that the statements were the work product of the Board's attorneys and. were, therefore, not discoverable. This ruling of the Commission is in accordance with Rule Ala. I2. Civ. P., which provides that materials jproduced. in. anticipation. of litigation. are :not discoverable by an adverse party, unless that party can show a substantial need for those materials and can show that he or she cannot obtain the substantial equivalent of the materials without undue hardship. EX parte State Farm Mut. Auto. Ins. Cog, 386 So. 2d 1133, 1136 (Ala. 1980). The Commission's order also complies with Ala. Admin.- Code (Medical Licensure Commission) which states: "The Commission may provide by order in a contested case that each party provide to the other parties a 15 1022156 list of all witnesses to be called at the hearing and. copies of all documents to Ibe entered. into evidence at the hearing. The Commission may authorize the parties to submit the testimony of witnesses by deposition upon oral examination in the manner" prescribed. in the ,Alabama. Rules of Civil Procedure. The Commission may provide by order for such other limited discovery by the parties as is deemed necessary and prudent by the Commission or the hearing officer to ensure that the hearing is fairly conducted under the law; provided, however, that the parties shall not be permitted to prolong or unnecessarily delay the proceedings in contested cases for discovery purposes. However, no party to a hearing shall be entitled to discover the contents of any investigative files, records, including investigative reports, statements, summaries, or other' materials compiled. and. accumulated In; the investigators, attorneys or staff of the Commission, or the Board of Medical Examiners, pursuant to its ordinary and usual investigative function unless the document or statement in lieu of the actual witness is to be offered into evidence at the hearing." (Emphasis added.) The record reveals that Almeida was aware of the identity of the complaining witnesses, that Almeida had the opportunity to depose those persons, and that the Commission ordered that the tape?recorded statements made by those parties during the Board?s investigation be transcribed and made available to Almeida. Therefore, Almeida had ample opportunity to obtain the substantial equivalent of those statements without undue l6 1022156 hardship. Furthermore, Almeida does not contend that the written statements were offered into evidence. Consequently, we do not find a due-process violation by the Commission in this aspect of the case. IV. Conclusion Because we conclude that the Commission?s decision was supported by substantial evidence and that Almeida's due- process rights were not violated, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings or orders consistent with this opinion. REVERSED AND REMANDED. I Houston, See, Brown, Johnstone, Harwood, Woodall, and Stuart, JJ., concur. l7 2 7 2003 notice: This opinion is subj ublication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, 300 Dexter Avenue, Montgomery, Alabama 36104?3741 ((334) Alabama .Appellate Courts, of any typographical or other errors, in order that corrections may be made 242-4621}, before the opinion is printed in Southern Reporter. act to formal revision before ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2002?2003 2011096 Medical Licensure Commission of Alabama v. Oscar D. Almeida, Jr. Appeal from Montgomery Circuit Court (CV-02-1222) YATES, Presiding Judge. AFFIRMED. NO OPINION. See Rule 53(a)(l) and (2) (F), Ala. R. App. (Ala. 1994); Medical Serve. p_arte Peqram, 646 So. 2d 644 Admin. v. Duke, 3'78 So.?2d 685 (Ala. 1979); Kids' Klub, Inc; 2011096 v. State Dep't of Human Res., [Ms. 2010453, June 20, 2003] So. 2d_ (Ala. Civ. App. 2003); Barnqrover xx. Medical Licensure Comm'n, [Ms. 2010034, July 26, 2002] So. 2d (Ala. Civ. App. 2002); Chafian v. Board of Chiropractic Exam'rs, 647 So. 2d 759 (Ala. Civ. App. 1994); Flowers v. Alcoholic Beveraqe Control Bd., 627 So. 2d 415 (Ala. Civ. App. 1993),; Ferlisi v. Alabama Medicaid Adencjz, 481 So. 2d 4.00 (Ala. Civ. App. 1985); and Alabama Dep?t of Public Health v. Perkins, 469 So. 2d 651 (Ala. Civ. App. 1985). Thompson. Pittman, and. Murdock, JJ., concur in the result. Crawley, J., dissents. 2011096 CRAWLEY, Judge, dissenting. I respectfully dissent. The decision of the Medical Licensure Commission of Alabama (hereinafter referred to as "the revoke the medical license of Oscar D. Almeida, Jr., is subject to the standard of review set out in the Alabama Administrative Procedure Act, 4l~22-20, Ala. Code 1975. See 34-24-367, Ala. Code 1975 ("Judicial review of the orders and decisions of the Medical Licensure Commission shall be governed by the provisions of Section 41- 22920 Section provides for a trial de novo under certain circumstances ?n "where review is sought from tax assessments, tax determinations or tax redeterminations, rulings of the revenue department granting, denying, or revoking licenses, or rulings on.petitions for tax refunds" which are not present here. The standard of review is therefore provided in as follows: "(kJ Except where judicial review de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings.' The court may reverse or modify the decision or grant other 3 2011096 appropriate relief from.the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following: In violation.of constitutional or statutory provisions; In excess of the statutory authority of the agency; In violation of any pertinent agency rulesJ Made upon unlawful procedure; Affected by other error of law; Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion." The Commission was the finder of fact in this case, and, upon review of the evidence presented, it is my opinion that there. was substantial evidence, despite 'there Ibeing some evidence that was inconsistent, to support the Commission's Idecision to revoke Almeida?s medical license. Therefore, I believe that the trial court impermissibly substituted its 2011096 judgment for that of the Commission and that its judgment is due to be reversed. Almeida also contends that the Commission's failure to provide Ihinl with. the written statements provided. to the Commission during its investigation by those persons who had complained of Almeida's conduct violated his rights to due process. This court has stated: -- - "We note that in the case of.Dawson.vr Cole, 485 So. 2d 1164 (Ala. Civ. App. 1986), we stated: '13? has been generally recognized that there is no basic_ constitutional- right to prehearing discovery in administrative proceedings.? Appellants assert that this statement forecloses any further inquiry into this issue. We disagree. closer reading of our opinion in Dawson, supra, discloses our acknowledgment that 'the denial of prehearing discovery as applied in a particular case' could. result in 51 due jprocess 'violation. Thus, we must examine whether the Board's denial-of appellee's discovery request did in fact result in a denial of procedural due process." State Oil Gas Bd. of Alabama v. Anderson, 510 So. 2d 250, 256 (Ala. Civ. App. 1987). Upon reviewing the record of the proceedings before the Commission? I would.not conclude that the Commission's refusal to produce the written statements by the complaining parties was a violation of Almeida's due-process rights. A review of 2011096 those proceedings show that Almeida was aware of the identity of the complaining parties, that Almeida was able to depose those parties, and that the Commission ordered that tape? recorded statements made by those parties during the Commission's investigation be transcribed and made available to Almeida. It was only the written statements provided by those parties to the Commission's investigator that were not - provided to-Almeida. Further, Ala. Admin. Code, applicable to the Commission, provides: "The Commission may provide by order in a contested case that each party provide to the other parties a list of all witnesses to be called at the hearing and copies of all documents to be entered into evidence at the hearing. The Commission may authorize the parties to submit the testimony of witnesses by deposition.upon oral examination in the manner prescribed in the Alabama Rules of Civil Procedure. The Commission may provide by order for such other limited discovery by the parties as is deemed necessary and prudent by the Commission or the hearing officer to ensure that the hearing is fairly conducted under the law; provided, however, that the parties shall not be permitted to prolong or unnecessarily delay the proceedings in contested cases for discovery purposes. However, no party to a hearing shall be entitled to discover the contents of any investigative files, records, including investigative reports, statements. summaries, or other' materials compiled. and. accumulated. bV' the investigators. attorneys or staff of the Commission; or the Board of Medical Examiners, pursuant to its 6 2011096 function.unless the the actual witness the hearinqi" ordinarv and usual investiqativ document or statement in lieu is to be offered into evidence at (Emphasis added.) Almeida does not contend that the written statements were offered into evidence. Accordingly, it is my opinion that Almeida's due-process rights were not violated.by the Commission's failure to provide him with the written statements of the complaining parties. John H. Wilkerson Jr Clerk of the Co furrows of Aiabama, do hereby certify the forego?gci?vg . true and correct copy of the instrumen?s) herewith set out as same appears record in court. Wrtness my_ hand of . 20 Cterk. Court of Civil Appeals of Alabama ah IN THE CIRCUIT COURT OF MONTGOMERY COUNTRY, ALABAMA OSCAR D. ALMEIDA, Petitioner, . V. CV-02-1222-GR JERRY GURLEY, et a1. Respondents. ORDER This matter is before the Court on a Petition For Judicial Review. A Record On Appeal has been filed and the parties and their attorneys were present for oral argument. PROCEDURAL BACKGROUND Petitioner is a licensed. physician and the Alabama State Board of Medical Examiners ("Board") filed a complaint discipline Dr. ("Almeida") seeking to Oscar Almeida's license to practice medicine in the State of Alabama. The basis for the complaint was that Dr. Almeida had engaged in- sexual misconduct in the treatment Of four Of? his patients. The allegation with regard to one of the patients was dismissed during the course of the hearing. A hearing was held before the Medical Licensure Commission of Alabama ("Commission") over the course of several months and considerable testimony and evidence was received. Based on findings -regarding three of his patients, the Commission revoked Dr. Almeida's license to practice medicine. STANDARD OF REVIEW This Court's review is limited in scope as to whether the action taken by the Commission Was arbitrary and unsupported by. the evidence or reflects an improper application of law to the facts. Pursuant to Ala. Code, ?4l-22-20, the decision of the Reapondent should be affirmed if it is prima facie just and reasonable and it is supported by substantial evidence. In Ex .parte Bowater, 772 1181 (Ala. 2000), substantial evidence was defined as "evidence of such.weight and quality that fair-minded. persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved". The Commission found that Dr. Almeida had engaged in immoral, unprofessional or dishonorable conduct pursuant to Ala. Code It also determined that Dr. Almeida had? violated Alabama Medical Licensure Board Administrative Code Sec. which defines "Unprofessional Conduct", in part, as the "commission . . of any act that is detrimental or harmful to the patient of the physician or detrimental -or harmful to the health, safety, and welfare of the public, and which violates the high standard of honesty, diligence, prudence and ethical ll integrity demanded from physicians . . . The Commission also found that Dr. Almeida engaged in sexual misconduct pursuant to Alabama Medical Licensure Commission Administrative Code Sec. l, 2 and 3. Sexual misconduct is defined, in part, as 1. may reasonably be interpreted as romantic involvement with a patient, 2. I may reasonably be interpreted as intended for the sexual arousal or gratification of the physician and/or patient, 3. may reasonably be interpreted by the patient as being sexual. This Court has reviewed the transcript of the evidence, the record on appeal, the documentary evidence and argument of counsel and is of the Opinion that some of the findings supported by of the Commission are arbitrary and not substantial evidence and that there was an improper application of law to the facts. ERRONEOUS FINDINGS A. RELATIONSHIP BETWEEN AND C.A. One of the most significant findings of the Commission that was clearly erroneous was that the three complaining witnesses, none of whom initiated the charges, had never had contact with one another. However, the much, if any, evidence clearly showed that two of the complainants, T.N. ?had her baby. and C.A, had contact with one another for V?almost twenty years. C.A. and T.N had been friends since childhood and C.A. referred T.N. to Dr. Almeida.? C.A. accompanied T.N on prenatal visits to Dr. Almeida and was present, along with Dr. Almeida and a nurse, during vaginal examinations. C.A was also present at the hospital and delivery room when T.N. In addition, the two women had lunch together and would talk to each other on the telephone. They also talked to each other before their interviews with the Board's investigator and went to give their statements at the same time. The finding that these two witnesses had :never' had much. if any, contact with each other is exacerbated by the Commission's statement, in which this Court agrees, that the evidence "was often conflicting and confusing." The Commission also stated that "In order to believe the testimony of some witnesses it is necessary . to almost totally disbelieve the testimony of others". In addition, the Commission stated, "While inconsistencies were shown to exist in some areas, for the most part such areas were collateral to the central issue." The Court is mindful that it cannot assess the credibility of witnesses, however, the transcript contains 1 C.A. was no longer a patient of Dr. Almeida at the time. ?xx. . considerable testimony that is conflicting betWeen these two witnesses, including C.A.'s testimony that she did not observe anything inappropriate during T.N.'s pelvic eXaminations and that T.N. never told her that the exams made her uncomfortable. Certainly, testimony in this regard would_ not he collateral to the finding by the Commission that Dr. Almeida's vaginal examinations of T.N. "appeared" to be inappropriate to her. When the Court questioned this finding at oral argument, the Hearing Officer stated that he drafted the 'order and the Commission should not be held responsible for it. However, the Court is confident that the Commission carefully considered its order, just as it considered the evidence, before issuing it. B. SPECIFIC FINDINGS REGARDING T.N. One of the Commission's findings of sexual misconduct Almeida was flirtatious and made Comments T. N. testified that Dr. Almeida was was that Dr. regarding T.N.'s looks. flirty and "irritatingly happy". She also stated the Dr. Almeida would wink all the time and when C.A. was there would wink at him and he would wink back. Although the Court may- not agree that' such evidence supports a finding' of sexual misconduct, there was evidence presented to support the "flirtatious" finding. rum-N As to comments about T.N.'s looks, the evidence was that Dr. Almeida told T.N. that she was pretty and looked nice but she thought he was just being nice to her because she was fat. The Court is of the opinion that this incident was not interpreted by T.N. as a "romantic involvement" or as "being sexual". In addition, such comments could not be interpreted as "sexual arousal or gratification" of T.N. and/or Dr. Almeida. The Court is of the opiniOn that this finding does not constitute sexual misconduct. I T.N. also stated that she felt he was "coming on to her" by making comments referring to her boyfriend. The evidence was that her boyfriend also came with her on. prenatal visits but T.N. could not recall if she had ever introduced her boyfriend to Dr. Admeida. She testified to only one specific incident and that was a conversation among her, C.A. and Dr. Almeida about her boyfriend being 25 years older than she but could not remember whether C.A. or Dr. Almeida brought up the subject. C.A.. said the boyfriend had money and Dr. Almeida said he had money. T.N. considered that Dr. Almeida was "implying" that he wanted to go out on a date but that he never actually asked her out on a date. The Court is 'of the opinion that, based on the evidence, T.N.'s conclusion that Dr. Almeida was "coming on to her" by making comments about her boyfriend lacks logic. It does not seem that it would be that unusual, immoral, unprofessional, or dishonorable for an obstetrician to ask a pregnant patient about her boyfriend. The Court is of the opinion that substantial evidence was not presented to support the Commission?s finding that Dr. Almeida "came on to" T.N. and that evidence presented does not constitute sexual misconduct.~ The Commission also found that Dr. Admeida asked T.N. to join him for drinks. In response to a question, T.N. testified that there were a few times he asked her to join him for a drink or said he would join "them" for a drink. She also stated that C.A. was usually present and "we would just talk about, you know, going out or doing stuff after the visits or later that night or whatever". The only specific incident mentioned by T. N. was that after her exams, she and C.A. would go to a restaurant and Dr. Almeida "implied" that he would like to meet them there. C.A. did not testify as to any invitations by Dr. Almeida in his office or when accompanying T.N. There was no evidence that Dr. Almeida ever had drinks with T.N. or C.A. Again, a finding that Dr. Almeida is guilty' of sexual misconduct 'based on implications is not substantial evidence to support a finding of Sexual mistonduct. The Commission further found that Dr. Almeida "appeared" to conduct inappropriate vaginal examinations of T.N. T. N. was pregnant when she began seeing Dr. Almeide during the end of her first trimester and did not have any problems with him when she first began going to him. .A nurse was always present during examinations. T.N. stated that she was uncomfortable with the exams and accompanied her 90% of the time to her exams. C.A. denied T.N. telling her that she was uncomfortable during exams. It is not clear how many vaginal examinations T.N. had while pregnant. Certainly, a patient's testimony of inappropriate vaginal examinations is difficult to dispute and just as in criminal sexual offense cases, the testimony of the complaining witness should not have to be corroborated. However, there was considerable conflicting evidence presented which raises questions about this finding.? C. SPECIFIC FINDINGS REGARDING C.A. With regard to C.A., the Commission found that that Dr. Almeida flirted iwith her during examinations and -he "appeared" to be "hitting" on her. There was always a nurse present during examinations. testified that it was obvious to her that Dr.? Almeida was flirting with her because he would wink at her and that he would "hit" on her. However, C.A. testified that she was "hit on" at leaSt every other day by men driving down the street. She also testified that men hit on her on a regular basis at the gas station, grocery store as well as work and her testimony seemed to indicate that such conduct was an everyday occurrence. C.A. never specifically described how Dr. Almeida "hit on" her. Again the Court is of the Opinion that there was not substantial evidence presented to support a finding of sexual misconduct as to Dr. Almeida "hitting" on C.A. And- again, although the Court may not agree that the evidence supports a finding of sexual misconduct based on Dr. Almeida evidence to support a being flirtatiOus, there was "flirtatious" finding. In addition, the Commission found that Dr. Almeida was guilty of sexual misconduct by asking C.A. personal questions about her private relationships. When C.A. first starting seeing Dr. Almeida she told him that as soon as she got married she wanted to start a family, however, she felt it was inappropriate for Dr. Almeida to ask about her fiance. C.A. also asked Dr. Almeida about artificial insemination but he tOId her that he did not do that in his practice and she subsequently transferred her records to an infertility specialist. Again the Court is of the Opinion that asking a gynecological patient, Who is interested in conceiving and artificial insemination, about her fiance, does not constitute sexual misconduct. Another finding was that Dr. Almeida asked C.A. to meet him at various places. During the time C.A. was a patient she would make phone calls to him and she testified that he- asked her to meet him at Burger King and Bojangles. It is such invitations as constituting difficult to interpret romantic involvements, or as intended to be for the sexual arousal er gratification of C.A. and/or Dr. Almeida, or that it could reasonably' be interpreted as being sexual. The Court is of the opinion there was not substantial evidence to support a finding of sexual miscOnduct. The Commission also found that Dr. Almeida asked C.A. to go with him to a radical conferencea during a telephone call she initiated. This conversation occurred several months after C.A. had her medical records transferred to an infertility' specialist and approximately' ten (10) months after she had seen Dr. Almeida mas a patient but she continued to call him for "medical advice". n: that telephone conversation about the conference, "threesome", which C.A testified Dr. Almeida. proposed a would include the two of them and T.N. When C.A. called T.N. and told her that Dr. .Almeida had proposed a "threesome"_ they laughed about it. It appears from the that this conversation occurred record would have approximately six to eight weeks after baby was born There was no evidence that Dr. Almeida attended a conference. 10 that T.N. was breast and Dr. Almeida's notes reflect 'feeding. In order to constitute sexual misconduct with one who is not actively receiving treatment, the criteria given under the definition of sexual misconduct, as defined above, must be made and, in addition, such conduct must result from the "use or exploitation of trust, knowledge, influence or emotions derived from the professional relationship", or it must misuse "privileged information or access to privileged information to meet the physician's personal or sexual needs" or it must misuse "privileged information or access .to privileged information to meet the physician's personal or sexual needs" or is "an abuse or reasonably appears to be an abuse of authority or power". Alabama Medical Licensure Commission Administrative Code Clearly. the incidents after C.A. was no longer a patient of Dr. Almeida do not constitute seXual misconduct. It should also be noted C.A. she continued to call Dr. Almeida and in May of 1995, which was well after the time of the incidents and invitation, she called his office requesting to have a pregnancy test but then went to another obstetrician for medical care. D. SPECIFIC FINDINGS AS TO J.S. With regard to J.S., evidence was presented of sexual misconduct, however, there were conflicts in her testimony 11 and that of other witnesses. There are also inconsistencies in her testimony and Dr. Gene Abel's report. In addition, J.S. denied ever talking to Dr. Abel. D. DR. REPORT AND TESTIMONY Because of the inconsistencies and contradictions the three complaining witnesses' testimony, the finding Int the Commission that the testimony of Dr. Gene "indicates a. ,high' Board's expert, Gordon Abel, the- probability that the complaining' witnesses gave truthful testimony" should also be taken into consideration. Dr. Abel was provided the Board's inVestigatlve file and he testified that the complaining witnesses interviews were very important in? forming his opinion. He also testified that he interviewed all three of the complaining witnesses Int telephone for less than twenty (20) minutes each. However, T.N. and C.A. did not recall ever talking to him. and. J.S. testified that she was sure she had. never talked to him. And just as the Court, Dr. Abel did not have an opportunity to personally observe and assess the demeanor Of the Complaining witnesses in making his report. The Cocrt has revieWed his report and there tare inconsiStencies in it with. the hearing testimony' of the witnesses which has .been taken into complaining consideration in reaching this decision. 12 E. DUE PROCESS Because of the countless inconsistencies and witnesses' OCGSS contradictions regarding the complaining testimony, the Court is of the opinion that a due pr issue is presented. Prior to the hearing, defense counsel filed a motion seeking production of statements and prior testimony of the complaining parties which was denied. In the Supplemental Record filed by defense counsel, excerpts from depositions taken prior to the hearing were attached. In J38. deposition's she stated that a court reporter was present when she gave a statement during the investigation and that she was given a copy of it? In her deposition, T.N. testified that she was provided with a copy of the statement she gave during' the investigation. also testified that she had given a statement, or deposition, before a court reporter. At oral argument when the Court questioned this matter, the prosecuting attorney? stated that there were not any depositions and the court certainly has no reason to doubt his statement. HoweVer, it appears that all three complaining witnesses were provided with copies or statements they had previously made; Defense counsel 13 ?523; ?Lx . receiVed a summary of the statements but were not provided any statements of complaining witnesses.3 The Court is mindful that there is" no constitutional right to pre?hearing discovery in administrative proceedings. Delevan v. Board of Dental Examiners, 620 So.2d 13 (Ala.Civ.App. 1992). However, denial of discovery as applied in. a particular case could result in a due process violation. 510 so.2d 250 State Oil Gas Board v. The Court is of the opinion that this is particularly significant in a case where there is substantial conflicting evidence. It could be extremely important to have uch testimony to effectively cross?examine the complaining witnesses. Under the circumstances presented here, the Court is of the opinion that failure to provide such statements is a denial of due process of law. F. CONSPIRACY FINDING Finally, the Commission found that large part of Dr. Almeida's defense centered on a claim that he was the victim of a conspiracy- . . which the commission determined lacked credibility. During the course of the hearing, defense counsel stated that there was no conspiracy defense and Dr. Almeida never stated that there was a conspiracy. Standing alone, this finding would probably not be cause for In. addition, detense counsel apparently' inadvertently' received. the iEVestigative file in exhibits provided to them by the Board's expert tness. - 3 l4 7.43? reversal of the Commission's order, however, when considered with the other erroneous findings, the court cannot ignore it. CONCLUSION The Court has carefully reviewed and considered this matter. And in reaching its decision, it does not condone any actions that it did not find to constitute sexual misconduct. However, considering the record in its entirety, the court is of the opinion that that were arbitrarwr and capricious findings. of the Commission. that were not supported by SUDS?Cantial evidence and that were contrary to law. Wherefore, it is hereby ORDERED as follows: 1. That the decision of the Medical Licensure CommiSSion of Alabama is reversed. 2. That the Motion To Participate As Amicus Curiae filed by patients of Dr. Almeida was denied, howeVer. they were granted permission to appear as Amicus. Curiae. 3. That the Motion For ProtectiVe Order and Motion To Seal Records was filed on May 20, 2002, which was after the record on apneal had been filed. However, the Court has maintained it and other documents and pleadings Subject to a protective order in its office and it has not been made available for public inspection. The Motions for ProtectiVe Order and Motion To Seal Records is granted and the 15 proceedings before the Medical Licensure Board, as well as any exhibits, are to be sealed. 4. That other documents filed are also subject to being sealed as they contain names of the complainante and and/or excerpts of the hearing transcript, some of which contain complainants' names, and it is further ordered that the following items shall be sealed. a. Reaponse Of Dr. Almeida To Motion To Reconsider. b. Brief filed by Petitioner on May 13, 2002. c; Appendix To Brief filed by Petitioner on May 13, 2002. d. Supplemental ReCOrd filed on May 13, 2002. e. Two Motions For Judgment As A Matter of Law filed in open court on April 30, 2002. f. Attachments to the Motion To Participate Ae Amicue Curiae. Done this 24th of June, 2002. CIRCUIT JUD cc: Counsel of Record 16 12:1? NILSUN SQNYER 3342683759 . I '5 IN THE CIRCUIT COURT OF MONTGOMERY COUNTRY, ALABAMA OSCAR D. ALMEIDA, Petitioner, JERRY GURLEY, et a1., 5 Respondents. ORDER This matter was before the Court on a Motion For Stay, or in the Alternative, Motion For Preliminary Injunction. Present in Court were the attorneys for the parties. Qn April 29, 2002, the Medical Licensure Commission of Alab a ("Commission")entered an order revoking Petitioner's licen to practice medicine in the State of Alabama. A Petit on For Review has been filed and the Court was infor ed that a Record On Appeal should be filed within a week. I i Pursuant to ?Ala. Code ?34-24-367, no stay' shall be granted pending judicial review, unless a reviewing court, upon proof tar the party seeking judicial review, finds in writing that the action was arbitrary or capricious or constituted a gross abuse of discretion; The Court has had an opportunity to review the order of the Commission, as well as the exhibits and portions of some of the hearing testimony. The Court has considered the matter this time, was arbitrary and/or capricious, abuse of discretion. had an 12:1? WILSON SRNYER 3342628759 and is of the opinion that the evidenCe before it, at tends to show that the action of the Commission or constituted a gross The Court is mindful that it has not opportunity to review the entire record and nothing in this order shOuld be construed to mean that it has made a final determination regarding the Commission's order. Wherefore, it is hereby ORDERED as follows: That the Motion For Stay is granted pending further order of the Court. after the Record On Appeal is filed. 3. after receipt of Petitioner's brief. That Petitioner shall file That Respondents shall file That this matter is set for argument on May 24, 2002, COurtroom 3C, at 8:30 a.m. Done this let day of May, 2002. a brief within one week a brief within one week cc: Counsel of Record ALABAMA STATE BOARD OF. BEFORE THE MEDICAL LICENSURE MEDICAL EXAMINERS, COMMISSION OF ALABAMA Complainant, Case No. 01-027 vs. OSCAR D. ALMEIDA, JR., Respondent. ORDER This matter is before the Medical Licensure Commission of Alabama on an Administrative Complaint ?led by the Alabama State Board of Medical Examiners seeking to revoke or otherwise discipline the license to practice medicine in Alabama of the Respondent, Oscar D. Ameida, Jr., MD. A hearing was held, and testimony was taken on January 23 and 24, February 27, March 27 and 28, and April 17, 2002. Dr. Almeida was present and was represented by his attorneys, Lenora W. Pate, Esq., Peter F. Burns, Esq., and Robert A. Huffaker, Esq. The Board of Medical Examiners was represented by James R. Seale, Esq. and Patricia E. Shaner, Esq. Wayne P. Turner, Esq. served as hearing of?cer. At the conclusion of the hearing, Dr. Almeida ?led a Motion for Judgment as a Matter of Law. Such motion, having been read and considered by the Commission, is DENIED. The Administrative Complaint alleged that Dr. Almeida had engaged in immoral, unprofessional or dishonorable conduct by engaging in professional sexual misconduct in his treatment of four speci?c patients. The allegations with regard to one of such patients was dismissed by the Board during the course of the hearing. In support of its allegations the Board offered testimony from the three complaining witnesses, an expert witness who had evaluated Dr. Almeida, and numerous other witnesses whose testimony tended to support the Board?s allegations. Dr. Almeida emphatically denied all charges and he presented, in his defense, an expert witness and numerous other witnesses whose testimony tended to support his denial of the charges. The evidence presented to the Commission was and was often con?icting and even confusing. Dr. Almeida?s attorneys pointed out inconsistencies in the testimony of witnesses. They explored in great detail the personal backgrounds of the complaining witnesses and of other witnesses presented by the Board. A large part of Dr. Almeida?s defense centered on a claim that he was the victim of a conspiracy designed to do him harm. It was strongly suggested that one or more physicians who held grudges against him had somehow put the complaining witnesses up to making their complaints. Dr. Almeida presented numerous witnesses who testi?ed that he has an excellent reputation as a physician, that he is highly quali?ed, and that he has a large and dedicated patient base. Several of his patients testi?ed about the high quality of medical care received by them. They also testi?ed of their belief that he is an extremely caring physician and numerous examples were given. A large number of patients came to Montgomery on the last day of the hearing to show their support for Dr. Almeida. The Commision acknowledges that Dr. Almeida is indeed a highly quali?ed, highly competent, and, for the most part, caring physician. However, Dr. Almeida?s competence as a physician is not the issue which the Commission must decide. Having heard the evidence, it is the task of the Commission to determine what evidence is credible and what evidence is not. In order to believe the testimony of some witnesses it is necessary for the Commission to almost disbelieve totally the testimony of others. The Commission has, however, had the opportunity to view the witnesses in person, to observe their demeanor, and, in the context of other testimony, to make judgments as to their general credibility. While inconsistencies were shown to exist in some areas, for the most part such areas were collateral to the central issue. With regard to the allegations of misconduct, the Commission ?nds the testimony to be very consistent. Such ?nding is reinforced by the fact that the three complaining witnesses had never had much, if any, contact with one another and the key supporting witnesses did not know the complaining witnesses. The complaining witnesses subjected themselves to a rigorous examination of their lives and to the disclosure of facts about themselves which they probably would have preferred to remain private. This was done by them with no apparent motive other than to expose Dr. Almeida. Moreover, the conspiracy theory advanced by Dr. Almeida, in the opinion of the Commission, is not supported by the evidence, and, therefore, lacks credibility. The Commission is convinced, from the totality of the evidence, that the complaining witnesses presented credible evidence and that their allegations regarding Dr. Almeida are truthful. In making such determination, the Commission is aided greatly by expert testimony and by the testimony of supporting witnesses. Gene Gordon Abel, MD, a highly quali?ed who specializes in the area of professional sexual misconduct, evaluated Dr. Almeida at the request of the Board. Dr. Abel's credentials are impressive and he has extensive experience in the area, having evaluated more than 300 cases of professional sexual misconduct in his career. His testimony indicates a high probability that the complaining witnesses gave truthful testimony. Dr. Almeida presented the expert testimony of Kimberly Svec Ackerson, Ph.d. While the Commission considers Dr.Ackerson to be quali?ed in her particular areas of expertise, it is noted that Dr. Almeida is the only physician whom she has ever evaluated for professional sexual misconduct. Although Dr. Ackerson does not believe that Dr. Almeida committed the offenses alleged, her testimony is not persuasive when compared to that of Dr. Abel. Other witnesses presented by the Board gave testimony which tended to substantiate the general behavior by Dr. Almeida described by the complaining witnesses. Speci?cally, K.H. testi?ed that Dr. Almeida was very ?irtatious, that he held her hand too long, that he invaded her personal space, that he examined her with no chaperone present, and that he performed a vaginal examination which she deemed to be inappropriate. 8.0., a salesperson who frequently called on his of?ce, recounted instances in which she believes that he made inappropriate advances toward her. Two of such instances were documented by her in reports to her employer and, as a result of such reports, a male salesman was assigned to call on Dr. Almeida?s of?ce in her stead. Based upon the totality of the evidence, the Medical Licensure Commission is unanimous in its opinion that the complaining witnesses presented credible testimony that Dr. Almeida actually engaged in the behavior described by them. The Commission is also unanimous in its belief that it would be a great loss to the medical community, and to the public in general, if a physician of Dr. Almeida?s obvious skill and ability were to never again be allowed to practice medicine. Although the Commission feels compelled to take the action to be hereinafter set forth, it is its fervent hope that Dr. Almeida will consider carefully Dr. Abel?s report and recommendations and that he will take the necessary steps to convince the Commission that he may be safely allowed to return to the practice of medicine in the future. Based upon the totality of the evidence, therefore, the Medical Licensure Commission makes the following ?ndings of fact: 1. Dr. Almeida engaged in professional sexual misconduct with his patient, J.S. He performed a vaginal examination and, after such examination, when no chaperone was present, he kissed her. He met with her at a later time in his private of?ce and, at such meeting, they engaged in open mouth kissing. He attempted to take her cloths off and, when she resisted, he unbuttoned his pants in front of her suggesting that she perform oral sex. 2. Dr. Almeida engaged in professional sexual misconduct with his patient, T.N. He was ?irtatious and he made comments regarding her looks. He ?came on? to her. He asked her to join him for drinks. The manner in which he did vaginal examinations appeared to her to be inappropriate. 3 Dr. Almeida engaged in professional sexual misconduct with his patient, C.A. He ?irted with her during examinations. He asked personal questions about her private relationships. He appeared to be ?hitting on? her. He asked her to meet him at various places and he asked her to go on a trip with him. Based upon the foregoing findings of fact, the Medical Licensure Commission concludes, as a matter of law, that Dr. Almeida has engaged in immoral, unprofessional or dishonorable conduct as de?ned in Ala. Code ?34- and in the Medical Licensure Commission of Alabama Administrative Code and Alabama Medical Licensure Commission Administrative Code 1,2, and 3. Based upon the foregoing ?ndings of fact and conclusions of law it is the Order of the Medical Licensure Commission of Alabama that the license to practice medicine in Alabama of the Respondent, Oscar D. Almeida, Jr., MD, be and the same is hereby REVOKED. . ENTERED this day of ,2002. JER N. GURLEY, M. Chai edical Lioens Commission of Alabama STATE BOARD OF BEFORE THE MEDICAL LICENSURE DICAL EXAMINERS, 5 COMMISSION OF ALABAMA Complainant, -vs- CASE No. OSCAR D. ALMEIDA, JR. Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Alabama State Board of Medical Examiners and submits herein its sworn petition pursuant to the authority of Ala. Code and respectfully represents to the Medical Licensure Commission the following: i l. The Respondent, Oscar D. Almeida, Jr., MD, was duly licensed to practice medicine in the State of Alabama, having been issued license number 12933, on July 30, 1986. 2. The Board of Medical Examiners has caused an investigation to be made into the medical practice of Dr. Almeida and, based upon information developed during the course of its investigation, has determined that there exists probable cause to believe that the Respondent, Oscar D. Almeida, Jr., MD, has committed the following violations of Ala. Code ?34-24-360 (1997), and Rules and Regulations of the Medical Licensure Commission of Alabama: a. Immoral, unprofessional or dishonorable conduct as de?ned in Ala. Code and in the Medical Licensure Commission of Alabama Administrative Code and b. Immoral, unprofessional or dishonorable conduct as de?ned in Ala. Code and in the Medical Licensure Commission of Alabama Administrative Code 1, 2 and 3. 3. In support of the allegations of the violations of Ala. Code 34-24-360(2) (1997) and Medical Licensure Commission Rule the Board of Medical Examiners speci?cw alleges that, during the period of January 1993 through October 1999, Dr. Oscar D. Almeida committed unprofessional or dishonorable conduct in his treatment of patients, inappropriately touched patients, hugged, kissed and caressed patients, made comments which made his patients feel uncomfortable, attempted to engage in sexual relations'with patients, asked patients to meet him and go out with him, and sought personal -1- and private information which was of no medical bene?t ?'om patients. Persons who were subjected to unprofessional or dishonorable conduct in their treatment, inappropriately touched, hugged, kissed and caressed, had cormnents made to them which made them feel uncomfortable, subjected to attempts to engage in sexual relations, asked to meet Dr. Almeida and go out with him, and from whom he sought personal and private information which was of no medical bene?t are the following: .S., T.G., CA. and TB. 4. The Board of Medical Examiners speci?cally alleges that Dr. Ahneida in his treatment of patients .S., T.G., CA. and T.B., committed unprofessional or dishonorable conduct in his treatment of patients, inappropriately touched patients, hugged, kissed and caressed patients, made comments which made his patients feel uncomfortable, attempted to engage in sexual relations with patients, asked patients to meet him and go out with him, and sought personal and private information which was of no medical bene?t from patients, thereby constituting unprofessional conduct as that term is de?ned in the Medical Licensure Commission Rule and, consequently, that Dr. Almeida in committing unprofessional or dishonorable conduct in his treatment of patients, inappropriately touched patients, hugged, kissed and caressed patients, made comments which made his patients feel uncomfortable, attempted to engage in sexual relations with patients, asked patients to meet him and go out with him, and sought personal and private information which was of no medical bene?t from patients is guilty of unprofessional conduct. 5. In further support of the allegations of the violations of Ala. Code 34-24-3 60(2)(1997) and the Medical Licensure Commission of Alabama Administrative Code 1, 2 and 3 concerning sexual misconduct in the practice of medicine, the Board of Medical Examiners Speci?cally alleges that during the period of January 1993 through October 1991, Dr. Oscar D. Almeida inappropriately touched patients, hugged, kissed and caressed patients, made comments which made his patients feel uncomfortable, attempted to engage in sexual relations with patients, asked patients to meet him and go out with him, and sought personal and private information which was of no medical bene?t from patients. 6. The Board of Medical Examiners speci?cally alleges that Dr. Almeida in his treatment of patients J.S., T.G., CA. and T.B., committed unprofessional or dishonorable conduct in his treatment of patients, inappropriately touched patients, hugged, kissed and caressed patients, made comments which made -2- his patients feel uncomfortable, attempted to engage in sexual relations with patients, asked patients to meet him and go out with him, and sought personal and private information which was of no medical bene?t from patients thereby constitutes a violation of Ala. Code and Medical Licensure Commission Rule 1, 2 and 3 and, consequently, that Dr. Almeida in inappropriately touching patients, hugging, kissing and caressing patients, making comments which made his patients feel uncomfortable, attempting to engage in sexual relations with patients, asking patients to meet him and go out with him, and seeking personal and private information which was of no medical bene?t from patients is guilty of violating Ala. Code and Medical Licensure Commission Rule 545-X-4- .07(17)(a) 1, 2 and 3. WHEREFORE, the foregoing premises considered, the Alabama State Board of Medical Examiners respectfully requests that the Medical Licensure Commission of Alabama take jurisdiction of this Administrative Complaint, set a hearing thereon, and cause notice of such hearing and a copy of this Administrative Complaint to be served upon the Respondent, Oscar D. Almeida, Jr., M.D., requiring that he appear and answer the allegations contained in this Administrative Complaint in accordance with the Rules and Regulations of the Medical Licensure Commission. Further, the Board requests that, at the conclusion of the hearing, the Medical Licensure Commission revoke, suspend, or place on probation the license to practice medicine in Alabama of Dr. Almeida and/or take other action which the Commission deems appro- priate based upon the evidence presented for consideration. This Administrative Complaint is executed for and on behalf of the Alabama State Board of Medical Examiners by its Executive Director pursuant to the instructions of the Board contained in its Resolution adopted on July 18, 2001, a copy of which is attached hereto and incorporated herein. st EXECUTED THIS the 3 1 day of July, 2001. demo, D. ON, Ewe Director Alabama Board of Medical Examiners R. SEALE tto ey for the ama Board of Medical Examiners Post Of?ce Box 116 Montgomery, AL 36101-0116 (334) 834-7600 (334) 263-5969 - fax STATE OF ALABAMA MONTGOMERY COUNTY Before me, the undersigned, personally appeared Larry D. Dixon, who, being by me ?rst duly swom, deposes and says that he, in his capacity as Executive Director of the abama Board of Medical Examiners, has examined the contents of the foregoing complaint and petition an af?rms that the contents thereof are true and correct to the best of his knowledge, information and belief. ("Mk LARRY D. Execu ve Director Alabama Board of Me 'cal Examiners gr. SWORN TO AND SUBSCRIBED before me this day of July, 2001. (seal) Notary Public My commission expires: 5 STATE OF ALABAMA MONTGOMERY COUNTY A I A I Before me, the undersigned, personally appeared Larry D. Dixon, Executive Director of the Alabama State Board of Medical Examiners, who, being by me ?rst duly sworn, deposes and says as follows: The Alabama State Board of Medical Examiners session on July 18, 2001, a quorum of the members of the Board being present, conducted an investigation in to the medical practice of Oscar D. Almeida, Jr., M. D. At the conclusion of the discussion, the Board adopted the following resolution: Oscar D. Almeida_, Jr., M.D., Mobile. After consideration of investigative information, the Credentials Committee recommended ?ling an Administrative Complaint with the Medical Licensure Commission based on the grounds of immoral, unprofessional, and dishonorable conduct and seeking revocation and any other disciplinary action the Medical Licensure Commission deems appropriate. The motion was adopted. Dr. Lightfoot recused himself from the discussion, deliberation and determination. The motion was adopted. I further certify that the foregoing resolution was adopte by the Alabama State Board of Medical Examiners on the 18?h day of July, 2001. am Larry D. Dixon, xec?? Director Alabama Board 0 Medical Examiners SWORN TO AND SUBSCRIBED before me this mail day of July, 2001. Notary Public My commission expires: //03