State ordered to pay $41,000 to a Broward doctor exonerated of molestation accusation

An administrative law judge excoriated the Florida Department of Health’s handling of molestation accusations against Fort Lauderdale Dr. Joseph Astaphan and backed that up by ordering the department to pay $41,014 of the exonerated doctor’s legal fees.

In her Nov. 28 decision, Administrative Law Judge Mary Li Creasy said the department violated Astaphan’s statutory rights and made “erroneous statements” to the Florida Board of Medicine’s Probable Cause Panel (PCP) that parts of surveillance camera video from Astaphan’s Silk Laser + Aesthetics Centre were missing.

Creasy ruled it was on the basis of those “erroneous statements” that the PCP found probable cause that authorized an administrative complaint.

READ MORE: State board lifts restriction on a Fort Lauderdale doctor accused of molestation

The administrative law hearing followed a petition by Astaphan, who was represented by Sean Ellsworth throughout, for attorney’s fees after his exoneration.

Which side gave the other side what they needed?

What follows is from the emergency restriction order against Astaphan and the administrative law hearing concerning Astaphan’s attorney’s fees.

▪ Jan. 4: A patient identified by the Department of Health as “L.E.” said during an appointment for laser hair removal at Silk Laser, 924 N. Federal Hwy., Astaphan improperly touched her vagina and breasts.

▪ Jan. 6: L.E. reported her allegation to the Florida Department of Health and the Fort Lauderdale police.

▪ Jan. 7: Department of Health investigator George Mulero interviewed L.E.

▪ Jan. 11: Mulero interviewing Astaphan and assistant Ana Maria Buncayo and, with Astaphan, Buncayo and Astaphan’s wife, watched footage from the three motion-activated surveillance cameras in Silk Laser’ common areas. Mulero asked for “specific portions” of the video.

READ MORE: Florida defied public records law in child’s death. Taxpayers’ tab: $376,000

▪ A “few days” later: Astaphan gave Mulero and Fort Lauderdale police thumb drives with the requested video.

“The video provided showed portions of the visit when L.E. was entering Silk Laser, when she was in the hallway for approximately two minutes, and when she was leaving Silk Laser at the conclusion of her appointment,” Creasy’s hearing summary states. “No segments were “missing.” The video provided was exactly what was recorded by the motion-activated cameras and exactly what was requested by the Department’s investigator.”

When Mulero was asked by the Department attorneys if he’d seen the video, he said he had and noticed L.E. “prior to departure from the office, hug the doctor as if nothing had occurred.”

Mulero told Creasy, “Well, I was asked what I observed, so of course I mentioned it. And you know, I’m a prudent investigator. That would be a red flag. That would be something you would comment on.”

▪ Feb. 23: The state surgeon general issued an emergency restriction order against Astaphan, which prevented him from seeing female patients.

▪ Feb. 25: Astaphan’s attorney, Ellsworth, asked for a copy of the Department of Health’s investigative file.

▪ March 4: The Department of Health presented its case to the Probale Cause Panel. As they hadn’t given Astaphan or his attorney the file, this violated Astaphan’s statutory right...to review the department’s investigative file and to provide his written response to the PCP.

Creasy’s administrative law hearing report said the Department of Health told the Probable Cause Panel that the video given the department and police were “missing crucial parts;” and “the missing portion of the surveillance video would show us if Dr. Astaphan’s assistant remained in the room with Dr. Astaphan and Patient L.E. during Patient L.E.’s treatment.”

Creasy called these, “factually unsupported conclusions and accusations” and they led to the issuance of an administrative complaint against Astaphan.

“The PCP members found probable cause in this case primarily (if not exclusively) on the department counsel’s false representations that the requested surveillance video footage was missing, altered, or incomplete,” Creasy said.

▪ March 6: Astaphan served a petition for an expedited administrative hearing.

▪ March 31: The Broward County State Attorney’s Office decided against filing criminal charges “citing difficulty in proving the case beyond a reasonable doubt without corroborating evidence.”

▪ April 8: Astaphan filed a motion for sanctions, “placing the Department on notice that the ERO and administrative complaint were predicated on false information” and requesting the complaint be withdrawn by April 29.

▪ April 20: The First District Court of Appeal affirmed the ERO.

▪ May 6: the Department of Health returned the case to the exact same Probable Cause Panel, “and this time it was made clear that [Astaphan] did not alter or delete any video footage and that he properly provided the video as requested.”

The panel voted to dismission the complaint, which also dismissed the ERO.

READ MORE: A Kendall optometrist fined $4,000 for inaction as a patient went blind

Judge’s criticism of the Department of Health

“There was scant evidence to suggest that [Astaphan] or his assistant lied in response to the inquiry of the department’s investigator,” Creasy wrote. “Contrary to the misrepresentation of the department’s counsel before the PCP, there was absolutely no evidence that [Astaphan] in any way withheld potentially damaging video. Counsel for the department failed to point out to the PCP that the alleged victim’s actions immediately after the alleged assault (of scheduling another appointment and hugging the doctor) are wholly inconsistent with someone who had just been sexually assaulted by her doctor.”

Creasy said if the Department of Health had “followed the law and timely provided” Astaphan’s side with the investigative file, Astaphan could’ve told the Probale Cause Panel that he did provide the video segments requested and provided the full video when later subpeonaed for that.

Creasy said Astaphan “could have pointed out all the internal inconsistencies in the patient’s allegation and detailed to the PCP how the department failed to perform a reasonable investigation and restricted (his) license without any good-faith basis. Instead, and in violation of clear Florida law, the department presented the case to the PCP without affording Dr. Astaphan his statutory rights.

“The department’s actions in this case were woefully short of “substantially justified.””