Petition for Writ of Certiorari — Zafar Iqbal, Petitioner v. BPOA Pennsylvania State Board of Medicine, et al.

Appendix A

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

ZAFAR IQBAL. NO.24-1077

Appellant V.

BPOA. PA STATE BOARD OF MEDICINE: CHIEF DONALD K. COKES.

North Fayette Township Police Department. City of Pittsburgh’.

CURAHEALTH PITTSBURGH. LLC; STEVEN JONES. MD: PHILIP

POI-LICE. MD: MICHAEL WEIS. MD: A.D. LUPARIELLO MD;

KIMBERLEY FERKETIC: MELISSA SMITH: C. ROSS BETTS. MD,

UPMC PASSAVANT HOSPITAL: AMERICAN RENAL ASSOCIATES.

LLC: FRESENIUS MEDICAL CARE INC.

On Appeal from the United States District Court for the Western District

of Pennsylvania (DCCivilAction2-23-cy -832)

Magistrate J udge Honorable Patricia L. Dodge

Submitted Pursuant to Third Circuit LAR 34. I(a) July 9. 2024

Before: SHWARTZ RESTREPO, and FREEMAN. Circuit Judges

(Opinion filed: July 29, 2024)

ee een

OPINION*

I This disposition is not an opinion of the full Court pursuant to I.O. P- 5.7

does not constitute binding precedent.

Document: 52. |

PER CURIAM

Zafar Iqbal MD appeals from orders dismissing his complaint under Fed.

R. Cic. P. 12(b)(6) and denying his motion for relief that judgement under

Fed. R.Civ P.(60)(b)(3). We will affirm. Iqbal is a physician who has faced

allegations of sexual misconduct since at least 2003. That year, Fresenius

Dialysis Center terminated his practice privileges following allegations by

several nurses. In 2016, UPMC Passavant revoked his hospital privileges

following an investigation into allegations by still by another nurse. And

in 2018, Curahealth Pittsburgh. LLC suspended him following an

investigation into allegations by still another nurses. Those allegations

led to his conviction that same year of assault and harassment following

1

a bench trial in Allegheny County, Pennsylvania. Finally on November 2,

2020, and following a hearing, Iqbal’s license to practice medicine in

Pennsylvania was revoked by Pennsylvania Board of Professional and

Occupational Affairs(“BPOA”) and the State Board of Medicine ("the

Board")- On Iqbal’ petition for review, the commonwealth Court of

Pennsylvania affirmed. See Iqbal Bureau of Pro, & Occupational Affairs.

No- 1190 CD 2020,202WL1131987 (Pa.Commw.Ct.Apr.18, 2022),

allowance of appeal denied, 286 A.3d_ 709(pa. 2022). Cert.denied.

1438.Ct786(2023reh’gdenied 143S.Ct.1777(2023),

Iqbal later filed pro se the civil action at issue here against numerous

defendants, including his two most recent accusers, others who provided

testimony and evidence in his prior proceedings, the BPOA and the Board,

and health care providers that terminated his privileges. 2

Iqbal filed suit under 43 USC § 1983 alleging that all these defendants

violated his constitutional rights by either making or acting on the

accusations against him, which he claimed were false. His request for

relief included request for damages, “reversal” of his conviction and

restoration of his license.

All defendants except Kimberley Ferketic filed motions to dismiss. Iqbal’s

complaint under Rule 12(b)(6). Iqbal responded to each response and other

filings in which he expounded on his claims at length. The district Court

acting though a Magistrate Judge on parties’ consent under 28 USC §

636(c). granted defendants motions and dismissed Iqbal’s complaint with

prejudice. Iqbal then filed a motion for Rule 60(b)(3). The court denied that

motion, and Iqbal appeals both rulings.

II

against all defendants American Renal Associates LLCCARA”) and Dr. C.

Ross Betts under the two-year statute of limitations that applies to § 1983

actions arising in Pennsylvania. See Kach v. Hose,589 F.3d 626,.634(3rd

Cir. 2009). 1The District Court dismissed Igbal's claims against Ferketic

(one of his accusers) by order entered October 19.2022, because she passed

away, he filed suit, and he did not name or serve her estate. Iqbal does not

challenge or even mention that ruling on appeal, so we do not address it

further except to note that both grounds for dismissal discussed later in

this opinion apply to Ferketic too.

2We have Jurisdiction under USC Section 1291, Jurisdiction under 28. We

exercise plenary review of a complaint under Rule 12(6)(6). See Curry v

Yachera. 835 F.3d 37 3,377 {3d Cir. 201 6}. We review the denial of a motion

under Rule 60(b)(3) for abuse of discretion. See Budget Blinds. Inc. White.

336 F.3d 244.251 (3d Cir. 2008). 3

Hose. 589 F.3d 626. 634 (3d Cir. 2009). The court did so because all of

Iqbal’s claims against the other defendants accrued at the latest upon the

revocation of his license on November 2. 2020, more than two years before

he filed his complaint on May I7, 2023 and because some had accrued

much earlier including his claims against Fresenius for terminating his

privileges in 2003.

Iqbal provides no basis to disturb that ruling. He argues that he is entitled

to equitable tolling because due to the COVID- 19 pandemic. It took the

Commonwealth Court about a year and a half to decide his petition for

review. But as the District Court explained. Iqbal’s claims regarding the

revocation of his license accrued when the BPOA and Board it in 2020, not

when the Commonwealth Court affirmed that ruling. See Pakdel v- City

and Cant. of San Francisco, 594 U.S. 474. 475)(2021) (per curiam)

(applying the settled rule that exhaustion of state remedies is not a

prerequisite to an action under 42 US.C. §1983--- outside the prison

context) (cleaned up); Kelly v. City of Chicago, 4 F, 3d 509, 511-13 (7th

Cir, 1993) (holding that § 1983 claim related to revocation of liquor license

accrued license officially revoked and that "[t]he availability of a state

appeals process had no different effect on the accrual date").

Iqbal also argues that these limitations periods should have been tolled

by fraud allegedly committed at the BPOA hearing. But Iqbal appears to

mean only that the evidence presented at that hearing was false and he

does not claim to have been unaware of that fact at the time. Nor has he

raised any other persuasive. 4

challenge to the court application of statute of applications. Thus, we

affirm that ruling with the only modification noted in the margin. Second,

the court dismissed Igbal’s claims against ARA and Dr, Betts (and most

other defendants) on the grounds that they are not state actors for the

purpose of § 1983. Iqbal’s claims against ARA and Dr. Betts are that they

terminated his minority ownership interest in ARA after his medical

license was revoked. Iqbal does not squarely argue the point, but we agree

with the District Court that he has not raised anything suggesting that

this alleged conduct could be deemed state action for purposes of § 1983.

Although Iqbal alleges that these defendants terminated his ownership

because the state revoked his license, that fact does not plausibly

transform these defendants ‘wholly private conduct into conduct by the

state as required under § 1983. See Kach. 589 F.3d at 646; Benn v.

Universal Health Sys. Inc. 371 F.3d 165. (3d Cir. 2004). Nor does Iqbal

argue that the District Court should have let him amend his complaint on

3

this point or that he could allege anything plausibly suggesting state

action as to these defendants if given another chance.

1One or Iqbal’s claims is that defendants Melissa Smith and Donald Cokus

provided false evidence in the proceeding leading to his 2018 Allegheny

County conviction, this claim will not accrue unless that conviction is

invalidated. See McDonough v, Smith 588 U.S.109.11 5-9(2019) (applying

the delayed-accrual rule of Heck v. Humphrey.512 C, S. 477 (1994), to a

similar claim). Iqbal sought such invalidation in his complaint 5Y

requesting that his conviction be "reversed. The proper vehicle for that

request is a habeas petition. not a Section 1983 action. See ids at 118 &

n.6. Nevertheless, because this claim against Smith and Cokus has not et

accrued. We will modify the judgment to reflect that the dismissal of this

claim is without prejudice to Iqbal’s ability to assert it if his conviction is

invalidated by other means. See Curt-v. 835 F.3d at 379. But we note that

Smith and Cokus might be immune from this claim to the extent that it is

based on their testimony in court, See Briscoe v. LaHuee 460 C.S. 325. 341-

46 (1983). 5

Finally, Iqbal also challenges the denial of

his Rule 60(b)(3) motion, in which he claimed fraud on the court. But as

the District Court explained, Iqbal appears to claim only that certain

defendant committed "fraud" by presenting false evidence in his prior

proceedings. Iqbal cannot proceed with those claims for the reasons

explained by the District Court and as discussed herein, and he did not

raise anything in his Rule 60(b)(3) motion even arguably requiring a

different result.

III

For these reasons. We will affirm the judgment of the District Court as

modified 3 of this opinion. 6

24-1077

Document: 57 Pagel

Date Filed: 09/03/2024

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 24-1077 ZAFAR IQBAL. Appellant BPOA, PA STATE BOARD OF

MEDICINE: CHIEF DONALD K. COKUS, North Fayette Township

Police Department, City of Pittsburgh. CURAHEALTH PITTSBURGH,

LLC; STEVEN JONES, MD; PHILIP POLLICE, MD; MICHAEL WEIS,

MD; A. D. LUPARIELLO, MD; KIMBERLEY FERKETIC:, MELISSA

SMITH: C. ROSS BETTS, MD; UPMC PASSAVANT

HOSPITAL.AMERICAN RENAL ASSOCIATES. LLC; FRESENIUS

MEDICAL CARE, INC.

(W.D. Pa. No. 2-23-cv-00832)

Present: A. FREEMAN, Circuit Judge.

Motion by Appellant Zafar Iqbal to File Exhibits to Petition for

Rehearing2. Supplemental Motion by Appellant Zafar Iqbal to File

Exhibits to Petition for Rehearing.

Respectfully.

Clerk JK ORDER The foregoing motions are granted.

By the Court,

s/ Arianna J. Freeman Circuit Judge Dated: September 3, 2024JK/cc:

Zafar Iqbal All Counsel of Record

Case 24-1077

Document: 59 1

Date 11/01/2024

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 24-1077

ZAFAR IQBAL, Appellant v.

BPOA PENNSYLVANIA STATE BOARD OF MEDICINE, ET Al

On Appeal from the United State District Court for the Western District

of Pennsylvania DC Civil No2:23-cv-00832

SUR PETITION FOR REHEARING

Present: CHAGARES, Chief Judge, JORDAN, HARDIMAN, SHWARTZ,

KRAUSE,RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN,

MONTGOMERY-REEVES, and CHUNG, Circuit Judges .The petition

for rehearing filed by Appellant in the above-captioned case having been

submitted to the judges who participated in the decision of this Court

5

and to all the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision having asked

for rehearing, and a majority of the judges of the circuit in regular

service not having voted for rehearing, the petition for rehearing by the

panel and the Court en banc is denied.

By the Court,

s/ Arianna J. Freeman

Circuit Judge Dated November 1, 2024kr/kj/ cc Zafar Iqbal

Appendix B

1. Reproduced Document related to Jurisdictional Statute of limitations.

a. Partial Reproduced Telephone Hearing Scheduling order by Jacob Herzing, PA

Department of Human Services, Bureau of Hearings and Appeal, BHA Docket

number 007-22-009. Medical assistance Preclusion dated 12/3/2024. Document 30

“A hearing will be held by telephone and will begin at 3.00 pm on January 21,2025.

beceaes Jacob Herzing Esq.”

2.Documents related to Chief Cokus perjury and Fifth amendment

violations at BPOA Hearing 2/27/2020.

A. Partial reproduced Affidavit(SC appendix #96,97) which was read verbatim in

petitioner’s Criminal trial downloaded

from SC case 22-624 appendix # 89, Reproduced Transcript of now Chief Cokus and

Petitioner’s Criminal Trial Transcript CP-02-CR-0003120-2018 page 10 lines 20

.... | will proceed to read the affidavit of probable cause which states that, Your

Honor, you affiant is a Corporal Donald K Cokus ............ page 11, line 25.

There was no mention of any physical injury stated by Cokus as written by

Kimberley Ferketic in her first written statement. This statement of Chief

Cokus became perjurious after his testimony at the BPOA Hearing as

below.

b. Reproduced Transcript SC appendix #89, 2/27 page 83 lines 11. ‘Q. what

happened to first statement that he gave you?15. A. I disposed it off after I read

it...’ 2/27 SC appendix # 94 page 87 lines 3. ‘Q. Okay

going back, how did you dispose of the statement? The first statement? 6.A. The

first statement? 8.A. I either tore if up and threw it in the garbage can.’ 2/27 SC

appendix SC appendix #93 page 84 lines: ‘1. A.... which she alleges that there was

ultimately bruising. We did not see.’

c: REPRODUCED TRANSCRIPT OF COERCED CONFESSION:

2/27-page 84 Line 20: Sol provided him the same blank document that he

was provided initially, and he wrote the second statement which was

much closer to what his verbal statement was to me.

3. Reproduced Documents related to Kimberley Ferketic impeached

testimony at BPOA Hearing 2/27/2020

a. Reproduced Transcript SC appendix # 82, 2/27 page 126 lines 9. A. ‘My right

breast is starting to bruise....’ SC appendix # 85, 2/27 page 128 lines 17-18 Q. ‘where

is the blood-stained shirt now? Line 19 A. The detective took it.’

b/cKimberley Ferketic Written statements 5 (2 pages) and 6(one page). The first

written statement (5) page 2 ...... and my right breast started to bruise. It is very

Page 6 dated 12/5/2017. ‘physical injury statement deleted. Both statements

were concealed by Curahealth from petitioner’s Criminal trial.

4, Reproduced documents of UPMC unsuccessful attempt to deny

petitioner opportunity to practice in 2008.

a. Unprovoked and without any complaint UPMC denied hospital privileges

renewal 10 A on January 3, 2008.

b. A Hearing panel (10 B) overturned the medical executive decision on April 21,

2008. “The hospital panel; concluded that recommendation made by the MEC was

capricious and not supported by substantial evidence.’

5.Reproduced Documents related to Melissa Smith and Police Officer

Lawrence Itri who testified at BPOA Hearing 2/26/2020.

a. Transcript from Melissa Smith testimony: SC appendix # 2/26 page 50 lines

21.’Q. And did you report this to the police? 22. A. Yes. I believe a couple of days

later.’ Page 79 lines 19. Q. Mrs. Smith, you said you went to the police the next day?

21. A. I believe it was a couple of days later’

This is entirely false as depicted in police report document partially

reproduced here original uploaded in case no 22-624 and a copy submitted.

b. Police report SC appendix #65 Incident 201508331M8358 report written by

Sergeant Lawrence Iri on 8/29/2015 at 15:49, this was 28 days later than the day of

incident 08/01/2015.

c. Sergeant Itri testimony SC appendix # 58 2/26 page 122 lines, 23. ‘Q. ... the time

reported is 8/29/2015 at 15:49? 25 “A. Yes. That the time I took the report.’ SC

appendix 59. 2/26-page 123 line 6 ‘A. Yes. That is first time I h’ve seen them’.

d. Reproduced Documents from UPMC Hospital Investigation Committee.

SC appendix # 70,71 pages 5,6 There is hourly watch documented from 8/1/2015 to

8/5/2024, it does not show that Melissa Smith any time contacted Police.

e. Reproduced Document from investigation Committee report.

SC appendix # 72, page 12 line 12 ‘The only tape available which showed outside of

elevators on the first floor of the hospital was from PNC ATM machine. Page 12

line 15, there are multiple instances for a short period of time, the elevators are not

visible, and someone is blocking the view.

fPhoto evidence that 10D, there is Hospital surveillance camera directly above first

floor elevators.

g. On February 19, 2016, telephone conference call (10 E) with security revealed

that there was hospital unhindered surveillance tape available. Hospital refused to

share the tape.

h Reproduced transcript of Dr. Pollice which confirms Spoliation of vide

evidence.

2/27-page 32 line 3-6,Hearing Examiner: ‘Okay to your knowledge, was there any

other videotape available to you- for you to review beyond the PNC Bank tape?

Line 8. The witness Dr. Pollice: So yes. I believe that UPMC also has video cameras

in that area. I also believe that by the time we tried to obtain those video tapes,

they had already been overwritten

i.Reproduced portion of UPMC bylaws which govern Hearing panels (10

F).

j.No. 7. D.8. Post Hearing Statement.

Each party shall have the right to submit a written statement, and the Hearing

panel may request that statement be filed, following close of the hearing.

k. Reproduced emails where President-lawyer ruled against written

statement to be given to the hearing panel from the petitioner, violating

his First Amendment Rights.

UPMC and the President lawyer refused petitioner to file a written statement

which contained above spoliation of video evidence.

(13) ‘As I have already ruled. I sustained ms. Lapenta’s objection to aspects of your

statement. So, unless the objection is withdrawn, or you make

3

edits.... Your statement would not be given.

5. Reproduced documents for Fresenius Medical Care (FMC),

a. Document labelled as (14 A) and referred as R-15 (uploaded as SC appendix 103

in 22-624 case)

ee However, we feel that charges of sexual harassment are not substantiated....’

April 4, 2003.

b. Letter dated April 21, 2003 (14 C) demanding to try the same charges again......

Dr. Iqbal should present himself for an interview with appropriate company

personnel”,

c. Response Letter (14 D) dated April 28, 2003, by Attorney Alan Baum. ‘Governing

body on April 4, 2003, ruled in favor of Dr. Iqbal. If your investigation was not

complete, FMC has no right to suspend and terminate Dr. Iqbal privileges.’

d. Document (14 K) Immediate suspension and Termination of FMC privileges

dated May 1, 2003, by an Executive order of Medical Director.

e. Reproduced Document (14 F) dated 10/13/2003.

National Practitioner Data Bank DCN 5500000039647565

‘Privileges were immediately and permanently suspended....’

Same charges and same wlinesses were used as of April 4, 2003, Hearing. Petitioner

contends this violated his Fourteenth Amendment Rights.

e. Reproduced Final order BPOA pages 5 foot not 9 and page 6 lines 8-18.

Final Order: ‘Admitted loosing privileges at Fresenius Medical Care in 2003 asa

result of sexual harassment allegations.

‘On April 4, 2003...there is insufficient grounds for sexual harassment.... the sole

purpose was to lay foundation and provide full picture...”

Petitioner contends that even he was exonerated of same charges earlier, which were

retried and resulted in his loss of privileges which violated Fourteenth amendment

rights and both BPOA and FMC used it to smear petttioner’s reputation.

6. Reproduced Documents for ARA/Betts.

a. Document (15*) shows petitioner share of 10%, this has been forcibly reduced

from 15%.

Third Circuit and DCWPA dismissal with prejudice had these shares being

confiscated illegally by ARA.

b. Document (15 E), petitioner filed grievance report but without avail, his 15%

shares were not restored.

c. ARA and Dr. Betts excluded petitioner from Butler Market (15 A, B, C, D).

Illegally keeping information from Hearing panel and then modifying

questionnaire’s question number V. (adding dialysis clinics) yet still denying

privileges on technicality.

Appendix C

COMMONWEALTH OF PENNSYLVAN IA DEPARTMENT OF STATE

BEFORE THE STATE BOARD OF MEDICINE

Commonwealth of Pennsylvania Bureau of Professional and Occupational Affairs Case

No.: 17-49-14398

VS.

Zafar Iqbal, M.D.

Respondent

FINAL MEMORANDUM OPINION AND ORDER ADOPTING HEARING

EXAMINERS PROPOSED ADJUDICATION AND ORDER AND ADDRESSING

EXCEPTIONS

At its September 2, 2020, Board meeting, the State Board of Medicine (Board)

considered the entire record established before the hearing examiner in this case,

including the proposed history. findings of fact conclusions of law and discussion in the

hearing examiner's Proposed Adjudication and Order issued on J uly 17, 2020. In

addition, the Board considered the Brief on Exceptions to the Hearing Examiner 's

Proposed Adjudication and Order (Brief on Exceptions) filed by Zafar Iqbal, M.D.

(Respondent) on August 3, 2020.

It is consistent with Board's authority under the Medical Practice Act of 1985 and the

Administrative Agency Law, 2 Pa. C.S.§ 504, for the Board to adopt the hearing

examiner's proposed findings of fact, conclusions of law and discussion if the Board

determines that they are complete, and the evidence supports them. Having reviewed

the entire record, the Board concludes that the evidence and the law support the

hearing examiner's proposed findings of fact, conclusions of law and discussion and

incorporates them as if set forth fully in this Final Memorandum Opinion.

Prothonotary Filed Om Nov 02, 2020, 12:03 PM

Act of December 20, 1985. PL. 45 7, No. 1 12, as amended, 68 P.s. 422.1 -422 51 a.

1

and Order. The Board adds the following discussion to address the exceptions raised in

Respondent's Brief on Exceptions.

In his Brief on Exceptions, Respondent outlines several exceptions to the hearing

examiner's Proposed Adjudication and Order. In his first two exceptions, Respondent

takes exception to the hearing examiner's credibility determination as it relates to his

two accusers, M.S. and K In his third exception, Respondent takes exception to the

credibility of the testimony of Detective Donald Cokus as it relates to the criminal

proceedings in this matter. Finally, in his fourth and fifth exceptions, Respondent

provides an explanation of his prior relationship with a 2012 complainant, Ms. S. and

provides further information on the "Fresenius Incident in 2002.” See Brief on

Exceptions at para. 1-5.

The Board begins by noting that "[any participant who wishes to appeal all or part of

the Hearing Examiner's proposed report to the Board must file exceptions in the form

of a Brief on Exceptions with the Prothonotary of the Department of State within 30

days after the date of mailing shown on this proposed report in accordance with the

General Rules of Administrative Practice and Procedure at 1 Pa. Code 35.211-214."

Arowosaye v.Bureau of Professional and Occupational Affairs 2017 WL 1 152561 (Pa.

Cmwlth. 2017) Specifically, the Brief on Exceptions shall contain the following: a short

statement of the case, a summary of the basic position of the party filing, the grounds

upon which the exceptions rest and the argument in support with appropriate

reference to the record and legal authorities. I Pa. Code 35.212.

In response to Respondent's first three exceptions, the Board concludes that the

Proposed Adjudication and Order correctly states that in an administrative proceeding,

the fact finder determines questions of credibility of witnesses and weight of evidence.

See e.g Neva v. Department of Public Welfare 551 A.2d 354 (Pa. Cmwlth.

1988)(determination of credibility of witnesses in health care providers' appeal is the

province of the fact finder.) Additionally, the fact finder "need not provide specific

reasons for finding one witness credible over the other.": Sunoco Inc. v. Department of

Environmental Protection 864 A.2d 960 (Pa. Cmwlth. 2005) The reviewing courts do not

accept invitations.to re-evaluate evidence and credibility determinations. Id.

In attacking the both the victim’s credibility and the detectives ‘credibility in his Brief

on Exceptions, Respondent argues that it was "extremely clear" that the three key

witnesses "lied under oath making their accusation probative values not beyond a

reasonable doubt." See Brief on Exceptions, pg. l. However, the normal burden of proof

for most administrative actions is the preponderance of the evidence standard. Samuel

J. Lansberry In v. Pennsylvania Public Utility Commission 578 A.2d 600(Pa. CmwIlth.

1990), petition for allowance of appeal denied, 529 Pae 654, 602 A.2d 863 (1998); see

also North American Coal Corp. v. Air Pollution Commission 279 A.2d 356 (Pa.

Cmwlth. 1971) citing In Matter of Leopold, 366 A.2d 227 (Pa. 1976).

In Lepold, the Pennsylvania Supreme Court was faced with the issue of what standard

of proof to apply when conducting a de novo review of the recommended disbarment of

an attorney. Rejecting the contention that the "beyond a reasonable doubt" standard

should be used, the Pa. Supreme Court stated that "[w]hile we recognize the severe

impact that such sanctions may have on an individual's career, we are also mindful of

our duty to uphold the integrity of the Bar.” Suber v. Penn Ivania Com +n on Crime

and Delinquency 885 A.2d 678 (Pa. Cmwlth. 2005) citing Leopold Accordingly, the

Court concluded that use of the preponderance of the evidence standard is necessary as

it had been consistently utilized in disciplinary cases through the years. Id. citing

Ruane v. Shippensburg University, 871 A2d 859 (Pa. Cmwlth. 2005)(holding that the

proper standard for a student suspended for sexual assault was "preponderance of the

evidence" standard), Boguslawski v. Department of Education, 837 A.2d 614 (Pa.

Cmwlth. 2003) (reaffirming and holding that preponderance of evidence was the correct

standard to be applied in ‘teacher discipline cases).

3.

The Board notes that the hearing examiner began the proposed discussion by clearly

and accurately outlining that the correct burden of proof to be applied in this

administrative proceeding is the preponderance of the evidence standard. Next, the .

hearing examiner provides a lengthy discussion on the credibility of the witnesses and

weight of the evidence and cites to the controlling case law on that issue. The Board

concludes that the hearing examiners proposed discussion on burden of proof and

credibility is precise and complete. Accordingly, Respondent's first three exceptions,

relating to the credibility of M.S., K.F. and Detective Cokus are without merit.

In his fourth and fifth exceptions, Respondent provides additional explanations

regarding a 2002 sexual harassment complaint against him while employed at the

Fresenius Dialysis Center and a 2012 complaint against him while employed at UPMC.

Specifically, in his fourth exception, Respondent states that, "I had a purely platonic

relationship with "Ms. S" with a small altercation in 2012. I was extremely contrite and

have not spoken to her since. She did not appear at the hearing.” See Brief on

Exceptions at para. 4. In his fifth and final exception Respondent states, "attached are

documents which show exoneration initially. The instigating event was my breakup

with a group and starting a new dialysis clinic. I was readmitted to the clinic once new

administration took over.” See Brief on Exceptions at para 5. Respondent attaches

exhibit R-15 in support of his fifth exception. This exhibit is the Governing Body

Committee Decision Dated April 4, 2003, which found sufficient ' grounds for revocation

of Respondent's staff privileges based on his progress notes, history and physicals, long

and short-term care plans and physician orders. The Committee further found that the

charges of sexual harassment were not substantiated. See Exhibit R-15.2

The Board notes that Respondent uses the complainant’s full name but for sake of

privacy, the Board has used the complainant? initials.

4

The Board notes that Respondent's statements in his fourth and fifth exceptions do not

specifically cite to any proposed finding, conclusion or discussion within

the Proposed Adjudication and Order to which he takes exception as required by the

General Rules of Administrative Practice and Procedure However, for the sake of

completeness. The Board will treat these general statements as exceptions to the only

areas of the proposed report that address these incidents. In the Proposed Adjudication

and Order, at findings of fact 41 through 43, the hearing examiner found as fact the

following related to the investigation of the MS. complaint:

41. The Investigating Committee considered the incident involving MSS. as well

us previous incidents involving Respondent from 2003 (involving multiple complaints

at the Fresenius Dialysis Center)9, 2012 Gnvolving unwanted physical contact of a coworker nurse. A.S.) IO and 2018 (involving patient complaints).

N.T. 2/27/20 at pp. 286-287, 292; Exhibit c-8e

42. "The Investigating Committee conducted a thorough investigation and

recommended that Respondent's medical staff and clinical privileges be revoked

because he violated UP MCs policies. including the Code of Conduct and

Harassment-Free Workplace Policy. N.T. 2/26/20 at pp. 182-183; Exhibit C-9.

43. Based upon the results of that investigation. the unanimous vote of the Medical

Executive Committee was to revoke Dr. Iqbal's medical staff and clinical privileges.

'N.T. 2/26/20 at P. 186. See Proposed Adjudication and Order al pg 9.

Proposed finding of fact number 41 contains two footnotes (FN 9 and FN 10) which

describe the 2003 and the 2012 incidents. Footnote 9 and 10 states as follows °

9"Dr. Iqbal admitted to losing his privileges at the Fresenius Dialysis Center in 2008 as

a result of sexual harassment allegations. "The complainants in that case were all

nurses, N.T. 2/27/20 at pp.

467-470. Although the Fresenius allegations are not the basis for the present OTSC

before the Board, the allegations are material to the extent they were a factor considered

by UPMC in its decision to revoke Respondent's medical staff and clinical privileges.

10The 2012 incident involved Respondent's unwanted

physical with nurse A. S. That unwanted physical contact resulted in a

"collegial intervention” by UPN ° IC personnel including Dr. Rupa Mokkapatti, the

Chair of Medicine at UPMC Passavant (who testified in person at the hearing in this

matter. N.T. 2/26/20 at pp. 25-26; 28-31: Exhibit C-I and C-2). Although the 2012

unwanted contact with nurse A.S. is not the basis for the present OTSC before the

Board, it is material to the extent it was a factor considered by U PMC in its decision to

revoke Respondent's privileges.

5

See Proposed Adjudication and Order at pg 9, FN 9. 10.

The hearing examiner made no other reference to the 2003 and the 2012 incidents in

the Proposed Adjudication and Order. The Board has reviewed the entire record of this

matter, including the transcript of testimony. The Board notes that the hearing

examiner properly considered the testimony concerning the 2003 and 2012 incidents as

they related to the investigation of M.S.'s complaint against Respondent and not ‘as

violations themselves. The hearing examiner's proposed findings of fact 41

through 43 accurately reflect the testimony provided by several of the Commonwealth's

witnesses. The Board recognizes Exhibit R-15 contains the conclusion of the Governing

Body Committee Decision, on April 4, 2003, that there were insufficient grounds for a

finding of sexual harassment based on Respondent never being warned, notified

or counseled about the allegations of harassment against him. However, the Board

concludes that the 2003 finding is irrelevant to these proceedings as Respondent is not

charged with a violation related to that complainant. The sole purpose of the

introduction of this evidence was to lay the foundation and provide the full picture of

UPMC's investigation in the current M.S. matter. Therefore, Respondent's fourth and

fifth exceptions are without merit.

While Respondent does not raise an exception to the hearing examiner’s proposed

penalty, the Board concludes that the imposition of a civil penalty is not

necessary in this matter. The revocation of Respondent's license is enough to further

the Board's specific goal of protecting the public health and safety. In conclusion, the

Board finds that the evidence and law support the hearing examiner's Proposed

Adjudication and Order and that the issues raised in the Commonwealth's Brief on

Exceptions are without merit.

Wherefore, the following substitute Final Order shall issue:

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF STATE

BEFORE THE STATE BOARD OF MEDICINE

Commonwealth of Pennsylvania,

Bureau of Professional and Occupational Affairs.

Case No.: 17-49-14398 vs.

Zafar Iqbal, M.D.

‘Respondent

FINAL ORDER

AND NOW, this 2nd day of November 2020, upon consideration of the foregoing

findings of fact, conclusions of law and discussion, it is ORDERED that the license ‘to

practice

medicine and surgery issued to Respondent, Zafar Iqbal, MD., license no. MD044624E

1s:

REVOKED.

This Order is effective immediately. The sanction will become effective thirty (80) days

from the mailing date of this order, namely December 2, 2020. BY ORDER:

BUREAU OF PROFESSIONAL AND STATE BOARD OF MEDICINE

OCCUPATIONAL AFFAIRS

K. KALONJI JOHNSON, MARK B. WOODLAND, MLS., M.D.

COMMISSIONER CHAIR

APPENDIX D

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zafar Iqbal, Petitioner V

Bureau of Professional and Occupational Affairs,

State Board of Medicine,

ORDER

AND NOW, this 18th day of April, 2022, the November 2, 2020, order of the State

Board of Medicine revoking Dr. Zafar

Iqbal's license to practice medicine in Pennsylvania, is AFFIRMED.

s/Christine Fizzano Cannon

CHRISTINE FIZZANO CANNON, Judge

Order Exit 04/18/2022

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zafar Iqbal,

Petitioner

Bureau of Professional and

Occupational Affairs,

State Board Of Medicine,

Respondent 4:

No. 1190 C.D. 2020 Submitted: February 4, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE LORI A.

DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

* BY JUDGE FIZZANO CANNON FILED: April 18, 2022

Zafar Iqbal (Dr. Iqbal) petitions for review of the November 2, 2020, order of the

State Board of Medicine (Board) revoking his license to practice medicine in

Pennsylvania on the basis of multiple incidents of unwanted sexual advances

toward nurses and medical support staff. The Board concluded that revocation is

warranted because Dr. Iqbal's conduct violated the prohibition on immoral and

unprofessional conduct set forth in the Medical Practice Act of 19851 (MPA) and its

associated regulations. Upon review, we affirm.

Act of December 20, 1985, P.L. 457, as amended, 638 P.s. 422.1-422.53.

I. Background and Procedural Posture Dr. Iqbal has been a licensed medical doctor

in Pennsylvania since 1990 and specializes as a nephrologist. Hearing Officer's Op.,

7/17/20, at 5; Certified Record (C.R.) #23. In 2003, Dr. Iqbal lost his practice

privileges at the Fresenius Dialysis Center after allegations of sexual harassment

by several nurses. Id. at 9 & n.9. In 2012, after an incident involving unwanted

sexual contact with a nurse when he was practicing at UPMC Passavant (UPMC),

Dr. Iqbal recéived a warning but no formal discipline. Id. at 9 & n. 10.

On August 1, 2015, while still at UPMC, Dr. Iqbal made unwanted physical

advances toward a nurse, M.S.,2 in an elevator, by kissing her and putting his

tongue in her mouth; she reported it to her superiors the same day. Hearing

Officer's Op. at 5-7. After an investigation and internal proceedings, UPMC's board

of trustees revoked Dr. Iqbal's hospital privileges as of March 17, 2016. Id. at 7-10.

Them on November 7, 2017, while working for Curahealth in Oakdale, Dr. Iqbal

sexually assaulted a medical records clerk, K.F., who reported it to the police on

November 9, 2017. Id. at 10-12. Dr. Iqbal was suspended from Curahealth and after

a bench trial on November 20, 2018, he was convicted of one count of simple assault

«(a second-degree misdemeanor) and three counts of harassment (a third-degree

misdemeanor);3 he was sentenced to five years of probation. Id. at 12-13.

In November 2019, the Bureau of Professional and Occupational Affairs (Bureau)

filed an Order to Show Cause (OTSC) against Dr. Iqbal, alleging that in association

with the M.S. and K.F. incidents, he was being charged with seven counts of

unprofessional and/or immoral conduct in violation of the MPA and its

2 For confidentiality purposes, the victims' names are limited to their initials.

3 see 18 Pa.C.S. 2701(a), 2709. 2

regulations. OTSC, 11/8/19, at 2-11; C.R. #1. The OTSC advised Dr. Iqbal that his

state medical license could be revoked and he could be assessed civil fines of up to

$10,000 per violation. Id. at 11-12.

At hearings on February 26-27, 2020, two UPMC doctors testified about the 2012

incident. M.S. testified about the 2015 incident, as did two of her superiors, as well

as two doctors involved in UPMC's investigation, two police officers, and the

professional conduct investigator who worked on M.S.'s report. K.F. testified as

to the 2017 incident, as did the police officer and the professional conduct

investigator who investigated it. The Bureau also presented an expert on medical

ethics and conduct.

Dr. Iqbal testified that the M.S. incident was not an unwanted advance. He had

suggested to her that they speak privately about her personal "problems" after he

finished with his patients. Notes of Testi}lony (N.T.), 2/27/20, at 433. They first

went to a seating area on the fifth floor away from the nurses' station, then to the

elevator for more privacy. Id. at 436. She was upset and tearful and since they knew

each other, he gave her a hug and a peck on the cheek. Id. at 437-89. In the

elevator, they went up and down to various floors because they were confused, then

when they returned to the fifth floor and were exiting the elevator, he gave her a

hug, his lips accidentally brushed against hers, then they went in different

directions. Id. at 441-42. He denied putting his tongue in her mouth or throat. Id. at

444 & 487,

Dr. Iqbal acknowledged that when UPMC leadership asked if he kissed M.S., he

said he had, even though it was accidental, because he wanted to be truthful, but he

had not known the nature of the allegations against him when he admitted to

kissing her. N.T., 2/27/20, at 443, 486 & 495. He acknowledged telling them that his

actions towards M.S. were inappropriate. Id. at 485-86. Nevertheless, he

3

believes M.S. has lied about it being non-consensual. Id. at 561. He confirmed that

he had been warned after the 2012 incident. Id. at 488-93. He also believed that

better video of the incident existed and would have cleared him, but it was

"obstructed" and never shown to the UPMC investigative panel. Id. at 558 & 564.

With regard to K.F., Dr. Iqbal admitted that he kissed her and touched her breasts

but stated that she consented and put his hand on her breasts. N.T., 2/27/20, at 445.

He believed they were going to have an extramarital affair and that she wanted to

go out and have a good time with him; he maintains that she is lying about the

encounter being non-consensual. Id. at 446, 461 & 560. He acknowledges that he

3

was convicted of charges arising from the incident, but criticized Detective Cokus,

the investigating police officer, for having misled him about there being video of the

K.F. incident and for tearing up his first written statement suggesting that the

incident had been consensual. Id. at 453, 464, 483, & 558.

Dr. Iqbal acknowledged that his practice privileges at Fresenius were revoked in

2008 after several allegations of sexual harassment by nurses. N.T., 2/27/20, at

468° 69. He stated that he has had about 15 extramarital affairs, about half with

women from his medical workplaces who were nurses or support staff. Id. at 471-76.

He maintained that in the past, allegations of sexual harassment have been lodged

against him after an affair soured. Id. at 552-53.

Dr. Iqbal agreed that if he had acted in the way M.S. and K.F. alleged and the

* incidents had been non-consensual, it would have been improper in the hospital

workplace setting. N.T., 2/27/20, at 500-01. He acknowledged that he had an

Opportunity for a further hearing before the UPMC Medical Committee, but refused

to attend because he was not given video that he believes would have cleared him.

Id. at 569-71.

4

The hearing officer credited M.S. and R.F. and described their testimony as

consistent, credible, and corroborated: "More specifically, their body language, tears,

as well as the tone and tenor of [their] voice[s] lent credibility to the veracity of their

testimony." Hearing Officer's Op. at 17. The hearing officer also credited the

Bureau's additional witnesses and discredited Dr. Iqbal. Id. The hearing officer

therefore concluded that Dr. Iqbal had violated the MPA‘ prohibition on

unprofessional and immoral conduct as to the M.S. and K.F. incidents. Id. at 18-28.

Weighing the seriousness of Dr. Iqbal's offenses with the lack of any "meaningful"

mitigation evidence, the hearing officer concluded that Dr. Iqbal's medical license

should be revoked.4 Id. at 28-30 & Order. The Board adopted the hearing officer's

opinion in full. Board's Op., 11/2/20; C.R. #30. Dr. Iqbal then petitioned this Court

pro se for review.5

Il. Parties' Arguments

Dr. Iqbal argues that the Board's revocation of his medical license was arbitrary

and capricious. Dr. Iqbal's Br. at 3. He claims that M.S. should not have

been found credible because she stated in her testimony that she reported the

August 1, 2015, incident to the police several days after it occurred, but the police

report taken by Sergeant Itri was taken several weeks later on August 29, 2015. Id.

4

4 The hearing officer also imposed a civil penalty of $1,000 against Dr. Iqbal.

Hearing Officer's Order. The Board reversed the penalty sua sponte, explaining that

revocation of Dr. Iqbal's medical license was sufficient to ensure public health and

safety, and it is not at issue here. Board's Op., 11/2/20, at 6.

5 Dr. Iqbal's petition for review was filed on November 28, 2020. He then. filed

amended petitions for review on January 19, 2021, and February 3, 2021. This

Court struck those filings as they sought to add new claims not contained in the

original petition and the appeal period from the Board's determination had lapsed.

Order, 2/3/21, & Order, 2/4/21 (citing Pa.R.A.P. 1513(d)(5)). We therefore consider

only the merits of Dr. Iqbal's original petition.

5

He claims that the settlement funds M.S. received from her lawsuit against him and

UPMC arising from the incident were fraudulently acquired. Id. at 9.

Similarly, Dr. Iqbal claims that R.F. should not have been found credible, because

she stated that Dr. Iqbal had blood on his shirt that stained her shirt during the

November 7, 2017, incident and that she gave her shirt to the police, but Detective

Cokus testified that she did not give him the shirt; Dr. Iqbal asserts that R.F. lied

about the shirt and therefore falsified evidence against him. Id. at 4-5 & 9.

Dr. Iqbal claims that Detective Cokus likewise should not have been found credible,

because he admitted misleading Dr. Iqbal during their interview by stating he

would be reviewing video of the R.F. incident that ultimately did not exist and also

' acknowledged disposing of Dr. Iqbal's initial written statement that asserted the

K.F. incident had been consensual. Id. at 6-7. Dr. Iqbal asserts that his subsequent

admission to Detective Cokus that the incident was not consensual was therefore a

product of duress and obstruction of justice, such that his criminal convictions

arising from the R.F. incident were invalid. Id. at 7-8. He adds that the hearing

officer deliberately excluded an allegedly exculpatory report by Dr. Wettstein, a

forensic psychologist who examined Dr. Iqbal in June 2017 as part of the Bureau's

investigation of the M.S. matter. Id. at 9. He asks this Court to reinstate his

medical license, overturn his criminal convictions, and institute criminal

proceedings against M.S., K.F., and Detective Cokus. Id. at 9.

The Bureau responds that the Board's decision to revoke Dr. Iqbal's medical license

was supported by substantial evidence of record and that Dr. Iqbal

has not established that the revocation was either arbitrary or capricious. Bureau's

Br. at 12. The Bureau notes that the hearing officer applied the appropriate

preponderance of the evidence standard rather than the criminal standard of proof

6

beyond a reasonable doubt, and that any discrepancies in M.S. and K. F.'s

testimony were ancillary to the main issue of whether the assaults occurred. Id. at

15. The Bureau avers that Dr. Iqbal's attempt to discredit Detective Cokus is

likewise immaterial in light of the extensive evidence that Dr. Iqbal committed the

actions that led to his criminal conviction arising from the K.F. incident. Id. at 20-

21.

III.. Discussion

Physician disciplinary sanctions are within the Board's discretion and must be

upheld unless the Board acted in bad faith or fraudulently or the sanction

constitutes capricious action or a flagrant abuse of discretion. Slawek v. State Bd. of

Med. Educ. & Licensure, 586 A.2d 362, 364-66 (Pa. 1991); Tandon v. State Bd. of

Med., 705 A.2d 1338, 1346 (Pa. Cmwlth. 1997). Generally, a reviewing court may

not substitute its judgment for that of the agency whose decision is being reviewed.

Slawek, 586 A.2d at 365-66. This Court's review is therefore limited to determining

whether constitutional rights have been violated, whether the findings of fact are

supported by substantial record evidence, and whether errors of law have been

committed. Gleeson v. State Bd. of Med., 900 A.2d 480, 435 (Pa. Cmwlth. 2006). The

Board is the ultimate fact finder and may accept or reject the testimony of any

witness in whole or in part, and this Court is bound by those determinations. Ids .

Thus, when reviewing a decision by the Board, this Court may not re-weigh the

evidence which was presented or judge the credibility of witnesses. Id.

The Board is charged with the responsibility and authority to oversee the medical

profession and to determine the competency and fitness of an applicant

6 "Substantial evidence is such relevant evidence that a reasonable mind might

accept as adequate to support [a] conclusion." Taterka v. Bureau of Pro. &

Occupational Affs., State Bd. of Med., 882 A.2d 1040, 1044 11.4 (Pa. Cmwlth. 2005).

7

to practice medicine within the Commonwealth. Barran v. State Bd. of Med., 670

A.2d 765, 767 (Pa. Cmwlth. 1996). Section 41 of the MPA, titled "Reasons for

refusal, revocation, suspension or other corrective actions against a licensee or

6

certificate holder," states that the Board "shall have authority to impose

disciplinary or corrective measures on a board-regulated practitioner for any or all

of the following reasons":

(6) Violating a lawful regulation promulgated by the board or violating a lawful

order of the board previously entered by the board in a disciplinary proceeding.

(8) Being guilty of immoral or unprofessional conduct. Unprofessional conduct shall

include departure from or failing to conform to an ethical or quality standard of the

profession. In proceedings based on this paragraph, actual injury to a patient need

not be established. 63 P.S. S 422.41(6), (8). The Board's regulations further provide

that "A Board regulated practitioner who engages in unprofessional or immoral

conduct is subject to disciplinary action under section 41 of the [MPA] (63 P.S.S

422.41)." 49 Pa. Code S 16.61(a). This subsection lists actions-related to patient care

that would warrant discipline, but the list is not limited to patient care. Id. Immoral

conduct also includes "[t]he commission of an act involving moral turpitude,

dishonesty or corruption when the act directly or indirectly affects the health,

welfare or safety of citizens of this Commonwealth." 49 Pa. Code S 16.61(b).

Although Section 16.61 also states that a criminal conviction is not required for

disciplinary action, a conviction or guilty plea involving conduct pertaining to

medical practice is admissible and relevant to disciplinary proceeding

8

For the same actions at issue in the criminal matter. Herberg v. State Bd. of

Med.Educ. & Licensure, 442 A.2d 411, 413 (Pa. Cmwlth. 1982) (guilty plea to felony

drug charges admissible in revocation proceedings). Disciplinary proceedings,

however, are conducted on the basis of a preponderance of the evidence standard

rather than the criminal standard of beyond a reasonable doubt. Lyness v. State Bd.

of Med., 561 A.2d 362, 369 (Pa. Cmwlth. 1998). Deference is accorded to the Board's

determination of what constitutes unprofessional and immoral conduct. Starr v.

State Bd. of Med., 720 A.2d 183, 190 (Pa. Cmwlth. 1998).

In Tandon, a doctor's medical license in Tennessee had been suspended for

unwanted sexual advances toward his receptionist and a female insurance agent. .

705 A.2d at 1341. He relocated to Pennsylvania, reactivated his prior Pennsylvania

license, and began practicing as the only oncologist at his new hospital, with a case

load of 170 cancer patients per month. Id. The Bureau, citing Section 41 of the

MPA, began reciprocal disciplinary action based on his Tennessee record. Id. at

1342. A hearing officer imposed a three-year suspension (mostly stayed), which was

7

upheld by the Board. Id. This Court affirmed, noting that but for the doctor's

patient case load and the lack of other oncologists at the facility, the discipline for

his misconduct would likely have been more severe. Id. at 1346...

In Flickinger v. Department of State, 461 A.2d 336 (Pa. Cmwith. 1983), multiple

sexual harassment and assault complaints had been filed against the doctor, a

chiropractor, by both patients and staff where he practiced. Id. at 337. Under

provisions of the chiropractor conduct law analogous to Section 41 of the MPA, his

license was revoked. Id. The doctor argued that misconduct involving staff should

not be subject to professional discipline because it did not impact patient care and

well-being, but this Court disagreed and upheld the revocation, finding extensiveL

9

support in the record of multiple incidents of sexual misconduct and no mitigating

evidence. Id. at 337-38.7

Tandon and Flickinger establish that doctors found to have sexually assaulted

nurses and medical support staff are subject to discipline, up to and including

license revocation. Apart from the mitigating evidence of an extensive patient case

load in Tandon, the primary reason for lenience in cases involving sexual

misconduct has been when too much time has elapsed and the principle of laches

applied because memories had faded and witnesses were not available. See Shah v.

State Bd. of Med., 589 A.2d 783 (Pa. Cmwlth. 1991) (over four years between

alleged incident and report by patient to Board); Lyness (victims did not

report incidents for several years). Dr. Iqbal has not argued laches in this matter

and, in any event, M.S. and K.F. promptly reported their incidents with Dr. Iqbal.

Here, the Bureau presented evidence of Dr. Iqbal's unwanted sexual

contacts dating back to 2003, when he lost his practice privileges at Fresenius after

multiple staff reports. Hearing Officer's Op. at 9 & n.9, Findings of Fact (F.F.)

41.The record also includes the testimony of Dr. Robert Volosky, who observed

the2012 incident at UPMC in which Dr. Iqbal verbally propositioned a nurse, and

Dr. Rupa Mokkapatti, who stated that the incident led to an informal (but

documented) inquiry after which Dr. Iqbal admitted wrongdoing, accepted a

warning, and promised not to do it again. N.T., 2/26/20, at 24-41 & 237-39.

Despite that assurance, in 2015, Dr. Iqbal assaulted M.S. in an elevator, which she

recalled included him "shov[ing] his tongue down [her] throat." Hearing

7 Our courts have also consistently upheld revocation of doctors’ medical

licenses for improper sexual harassment or conduct regarding patients. Telang v.

Bureau of Pro. & Occupational Affs., 751 A.2d 1147 (Pa. 2000); Yousufzai v. Bureau

of Pro. & Occupational Affs.,State Bd. of Med., 793 A.2d 1008 (Pa. Cmwlth. 2002);

starr v. state Bd. of Med., 720 A.2d 183 (Pa. Cmwlth. 1998).

10

Officer's Op. at 5-7 & 20. M.S. reported it immediately to three superiors, two of

whom testified consistently concerning her account of the incident. N.T., 2/26/20, at

89-97 & 105-17. Several weeks later, M.S. also reported the incident consistently to

the police. Id. at 119-27. M.S. subsequently told the UPMC investigating panel, .

which found her credible, and the professional conduct investigator gathering .

evidence for these disciplinary proceedings, who found her "sincere." Id. at 301-03 &

249-57. Ultimately, the hearing officer also credited M.S.'s account, to which she

testified in person. Hearing Officer's Op. at 17.

Dr. Iqbal maintains that the incident with M.S. was not an unwanted advance in

light of their prior friendly relations, but proffered no evidence or witnesses to

support his assertion. The UPMC investigative panel did not find his version of the

incident as consensual to be credible, and neither did the hearing officer. N.T., 2/26,

20, at 303-08 & 314; Hearing Officer's Op. at 17. Moreover,

Dr. Steven Jones of UPMC, whom the hearing officer found credible, testified that

shortly after the incident, when he and the Leadership Council conducted an

initial inquiry, Dr. Iqbal admitted he had "crossed a line" with M.S. and that he

regretted the incident. Id. at 154-61. Dr. Iqbal's attempts to discredit M.S. were

rejected by the hearing officer, who found the passage of several weeks before M.S.

reported

the matter to the police irrelevant in light of the fact that she immediately

reported it at UPMC and did ultimately report it to the police. Hearing Officer's Op.

at 20 &

23. After UPMC revoked Dr. Iqbal's hospital privileges in March 2016, he began

practicing at Curahealth, but his episodes of misconduct did not cease and, in fact, .

escalated to the 2017 physical assault on K.F., who stated she had no prior

relationship with him at all when he came into her office to sign medical records,

ll

then violently attacked her, "stuck his tongue down [herl throat," ground his body

against hers in a bear hug, and grabbed at her breasts, bruising them. N.T;,

2/27/20, at 373-76. Two days later, she reported the incident to Curahealth and the

police. Id. at 337-38.

Detective Cokus, who investigated the K.F. incident, stated he was suspicious of Dr.

Iqbal's verbal and written assertions that the incident had been consensual, so he

used an accepted technique of misleading Dr. Iqbal by mentioning

there was video of the incident that would clear up any questions, at which point

Dr. Iqbal admitted the incident had not been consensual. N.T., 2/27/20, at 346-49 &

355-58. Dr. Iqbal's criminal conviction on misdemeanor charges of simple assault

and harassment arising from the R.F. incident after a counseled bench trial (with

stipulated evidence) in Allegheny County was admitted at the hearing and

acknowledged by Dr. Iqbal in his testimony. Hearing Officer's Op. at 4 & n.4.

The hearing officer credited K.F. and Detective Cokus and found Dr.

Iqbal's account of the incident as consensual to be not credible. Hearing Officer's

Op. at 17 & 24. The hearing officer also described this incident as an escalation in

the severity of Dr. Iqbal's conduct, particularly after he received a warning

. following the 2012 incident at UPMC and ultimately lost his UPMC hospital

privileges after the M.S. incident in 2015. Hearing Officer’s Op. at 23. The hearing

officer djsmissed Dr. Iqbal’s attempt to discredit R.F. by arguing about whether

blood on his shirt stained her shirt during the incident as immaterial to whether

the incident was nonconsensual and amounted to immoral and unprofessional

conduct. Id. At 24.

8 Dr. Iqbal now contends that his conviction was unjust, but the record contains no

indication that he appealed it within the appropriate timeframe. .

12

The hearing officer concluded that the Bureau proved all of the charges against Dr.

Iqbal, whose actions amounted to immoral and unprofessional conduct as set forth

in Section 41 of the MPA and Section 16.61 of the associated regulations. Id. at 19 &

25. Given the preponderance standard, the breadth and consistency of the Bureau's

evidence, and Dr. Iqbal's lack of rebuttal or mitigating evidence, the hearing

officer's conclusions were supported by substantial evidence of record and were not

legally erroneous, arbitrary, or capricious.

As to sanctions, the hearing officer considered the numerous and escalating

instances of Dr. Iqbal's misconduct, the revocation of his UPMC hospital practice

10

privileges after the M.S. incident, his criminal conviction arising from the K.F.

incident, and his lack of any mitigating evidence. Hearing Officer's Op. at 30. The

hearing officer concluded that "despite numerous warnings, including collegial

interventions and revocation of privileges at various medical facilities, [Dr. Iqbal]

[cannot], or will not, act in a professional, ethical or moral manner. Thus, a

severe sanction is warranted." Hearing Officer's Op. at 30. The hearing officer

therefore ordered Dr. Iqbal's medical license revoked. Id. The Board adopted the

_ hearing officer's findings and conclusions in full, dismissed Dr. Iqbal's exceptions

attacking the credibility and conduct of the witnesses who testified for the Bureau,

and upheld the revocation of his medical license. Board's Op. at 2-6. .

We agree with the Board that the extensive evidence presented by the Bureau and

summarized above fully supports the sanction of revocation. That determination

was amply supported by substantial evidence of record and was not legally

erroneous, arbitrary, or capricious. This result is also consistent with the holdings

of Tandon and Flickinger, where this Court has upheld severe sanctions for

13

doctors found to have violated the MPA and its regulations against unwanted

sexual advances and attacks on nurses and support medical staff.

In his brief, Dr. Iqbal again argues that M.S., K.F., and Detective Cokus should not

have been found credible. Dr. Iqbal's Br. at 3-5. However, credibility determinations

are firmly reserved to the fact finder (the Board) and this Court has no basis or

authority to overturn such determinations. Gleeson, 900 A.2d at 435.

Moreover, as the hearing officer pointed out, Dr. Iqbal's assertions of inconsistencies

in the testimony of both M.S. and K.F. pertain to minor or ancillary matters rather

than these victims' accounts of the incidents themselves, which were the basis of the

Board's revocation decision, and which were unequivocally found credible,

consistent, and corroborated by other evidence of record. Hearing Officer's Op. at 17,

19 & 23-24. Likewise, Detective Cokus was found credible by the hearing officer,

and as explained above, this Court may not disturb that determination. See

Gleeson, 900 A.2d at 435. Moreover, the hearing officer's opinion does not indicate

that Detective Cokus's testimony was relied on for any specific finding or served as

anything other than a supplemental or corroborative source to that of M.S., K.F.,

and the hospital personnel who corroborated their accounts. See Hearing Officer's

op. at 17 & 23-25.

IV. Conclusion

11

As the Board's determination was supported by substantial evidence of record and

Dr. Iqbal has not shown that the Board acted arbitrarily, capriciously, or

14

in a legally erroneous manner, we affirm the Board's order revoking Dr. Iqbal's

license to practice medicine in Pennsylvania.9

S/Christine Fizzano Cannon

CHRISTINE FIZZANO CANNON, Judge

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