ALJDEC

00A-9901024-NUR · State Board of Nursing · 2001-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2001; February 14, 2001; February 16, 2001; February 21, 2001; and February 26, 2001. APPEARANCES: The Arizona State Board of Nursing appeared through Marie A. Mann, Esq., Assistant Attorney General; Andres Martinez-DeLeon appeared through James J. Syme, Jr., Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence regarding whether Respondent Andres Martinez-DeLeon (“Mr. Martinez”) violated applicable regulations or the standards of care for nurse practitioners or registered nurses in Arizona and, if so, whether revocation or a lesser sanction of his licenses is necessary to protect the public. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Arizona State Board of Nursing (“the Board”). FINDINGS OF FACT Background Mr. Martinez at the time of the hearing was 48 years old. He grew up in Puerto Rico, was awarded a bachelors degree in sociology from Holy Cross University in 1977and a bachelors degree in nursing from Syracuse University in 1978. Mr. Martinez worked as a registered nurse in New York, Puerto Rico, and Florida, including approximately six years in the emergency room at Shands Hospice of the University of Florida in Gainesville. During this time, Mr. Martinez also took the Emergency Medical Technician program at the Santa Fe Community College in Florida to be certified as a paramedic. Mr. Martinez resigned his position at the Shands Hospice emergency room in 1996, when he graduated from the University of Florida with a masters degree in nursing with a specialty in family practice. Mr. Martinez worked as a nurse practitioner for one year at the North Okaloosa Medical Center in Crestview, Florida. Mr. Martinez has had no complaints made against his registered nurse’s licenses in New York, Puerto Rico, or Florida or against his nurse practitioner’s license in Florida. Because Mr. Martinez had received a scholarship from the National Health Service to complete his masters degree at the University of Florida, he was required to fulfill two years with the National Health Corps working as a health care provider in an underserved or rural area. Mr. Martinez applied for and, in August 1997, accepted a position as a nurse practitioner at the Gila Bend Family Care Center (also known as Clinica Adelante) in Gila Bend, Arizona, which would satisfy his National Health Corps obligation. In August 1997, the Board issued to Mr. Martinez Professional Nurse License No. RN [number redacted] and Nurse Practitioner Certificate No. AP0640. Mr. Martinez shortly thereafter began working for Clinica Adelante. Mr. Martinez began working part-time as a registered nurse, on evenings and weekends, in Good Samaritan Regional Medical Center in Phoenix, on September 26, 1998. On November 24, 1998, Clinica Adelante terminated Mr. Martinez’ employment, effective after his last day of scheduled employment, December 18, 1998. Between December 1998 and August 1999, Mr. Martinez examined or treated patients in his home and other locations in Gila Bend and Hyder as a nurse practitioner. On February 27, 2000, Mr. Martinez voluntarily terminated his employment at Samaritan Health Services. Procedure On February 16, 1999, Robert Alfinch, M.D., Clinica Adelante’s medical director between 1994 and 1999, made a complaint to the Board regarding Mr. Martinez’ care of certain patients. On December 21, 2000, the Board issued a Complaint and Notice of Hearing, which alleged that Mr. Martinez’ treatment of certain patients and conduct as a health care provider violated applicable statutes and provided grounds for disciplinary sanctions on his license and certificate. Mr. Martinez timely answered the Complaint allegations, generally denying them. A hearing was held on February 13, February 14, February 16, February 21, and February 26, 2001. The Board offered into evidence 47 exhibits and presented the testimony of seven witnesses: (1) Dr. Alfinch; (2) John J. Hopkins, Jr., M.D., Mr. Martinez’ collaborating physician following his termination from Clinica Adelante; (3) Chris Modena, the Director of Emergency Services and Mr. Martinez’ supervisor at Good Samaritan Health Services; (4) Betsy Beck, R.N., M.S., R.N.P., whom the Board employs as an advanced practice consultant; (5) Judy Hollowell, R.N., manager of Clinica Adelante, who worked with Mr. Martinez; (6) Valerie Smith, R.N., Associate Director of the Board and former consultant to its CAN DO program, a voluntary non- disciplinary program for chemically dependent nurses; and (7) Marilyn Kieffer-Andrews, R.N., Ph.D., a licensed clinical psychologist and psychiatric nurse practitioner who evaluated Mr. Martinez on referral from the Board. Mr. Martinez offered into evidence one exhibit and presented the testimony of two witnesses: (1) himself; and (2) Anthony H. Dekker, M.D., the associate of the Phoenix Indian Medical Center and director of Ambulatory Care and Community Health who met Mr. Martinez when he oversaw medical care of members of the Tohono O’Odham nation. Mr. Martinez’ Treatment of Patients as Nurse Practitioner At Clinica Adelante

Dr. Alfinch hired Mr. Martinez to be the sole medical provider at Clinica Adelante in Gila Bend for 4 or 4½ days a week, with a physician practicing with him the remaining day or half day. Physicians would be available by telephone at any time for Mr. Martinez’ consultation. A nurse practitioner may “basically provide all medical care but [is] expected to call or request a consultation with a physician at times if they had a difficult case they were uncertain of exactly what to do as far as diagnostics or treatment.” According to Dr. Alfinch, at the beginning of Mr. Martinez’ employment at Clinica Adelante, they had a “good relationship of talking over cases.” Mr. Martinez “started out very aggressively in a good way in seeking to satisfy patients, in being friendly, in being available, in trying to serve the community well. He set a standard of being available 24 hours a day, 7 days a week which was not a requirement of the job.” But, “over a few months, . . . [Mr. Martinez] was having a difficult time accepting any discussion,” although Dr. Alfinch “was not at all aggressive or mean in trying to consult with [Mr. Martinez].” When Dr. Alfinch tried to point out minor things to Mr. Martinez in chart reviews, Andy would get a little angry with our discussion. At least a couple of times he would call me back after I had left from one of our consultations and he would sort of argue with me and try to say that – that what I had said was wrong, and again I’m fairly laid back and open to criticism, but in those cases I felt that I was correct. And I also tried to send him information showing him that he could have made a better choice in these cases. At the start we didn’t have many cases that were really of any – they weren’t of any deep concern, any frightening cases. Those sort of surfaced later on after a few months down the road.

Although Garold Spire, M.D. was assigned to supervise Mr. Martinez and worked in Clinica Adelante on Fridays, Mr. Martinez started a class to keep his emergency medical technician certification current, which kept him out of the office on Fridays. Mr. Martinez testified that Clinica Adelante knew about the class and there is no evidence that it considered his absences on Fridays as cause for termination or other discipline. S.D. Between February and May, 1998, Mr. Martinez examined and treated at Clinica Adelante patient S.D., a four-year-old girl with congenital blindness. On February 6, 1998, Mr. Martinez diagnosed S.D. with pharyngitis, a throat infection, prescribed the antibiotic Erythromycin, and instructed her to return to the clinic in two weeks. On February 17, 1998, S.D.’s grandmother reported that the child had had an episode of dizziness; after Mr. Martinez examined the child, he assessed “worried well,” which health providers use if “parents or grandparents brought the child in stating that the child is sick but [providers] haven’t found anything wrong . . . .” On March 27, 1998, Mr. Martinez diagnosed S.D. with right otitis media, an ear infection, and prescribed the antibiotic Augmentin. On April 23, 1998, Mr. Martinez saw S.D., who complained of a sore throat, made no assessment in her chart, and prescribed Amoxicillin, another antibiotic. On April 30, 1998, when Mr. Martinez saw S.D., he noted complaints of sore throat, cough, and congestion, but that the right otitis media resolving. Mr. Martinez’ plan was to continue the Amoxicillin. On May 14, 1998, S.D. was examined by Dr. Garold Spire, M.D., who was assigned to be Mr. Martinez’ supervising physician. Dr. Spire reviewed S.D.’s charge, performed an examination, and found a very enlarged tonsil, enlarged lymph nodes in many locations, and splenomegaly, which means a spleen that is sufficiently enlarged to be palpated. According to Dr. Spire, S.D.’s spleen consumed approximately half her abdomen, which Dr. Alfinch called “very unusual.” Dr. Spire assessed diffuse lymph adenopathy and splenomegaly and ordered laboratory tests. On May 14, 1998, after Dr. Spire called him on the telephone about S.D., Mr. Martinez examined S.D. at home and assessed her with lymph adenopathy and splenomegaly. The results of the blood tests that Dr. Spire ordered were extremely abnormal, which quickly led to a diagnosis of acute lymphocytic leukemia. S.D. died shortly thereafter. Dr. Alfinch testified that Mr. Martinez fell below the standard of care in his examination, documentation, and/or treatment of S.D. in the following respects: (1) failing to perform and/or document an assessment of S.D. based on an examination on April 23, 1998; and (2) failing to perform a thorough physical examination, including a “big feel” of all lymph nodes and checking the child’s abdomen, when the child presented with serial infections over a few months. Dr. Alfinch testified that, in his experience, it could take anywhere from several weeks to months for a spleen to enlarge; the possibility that it could enlarge in two weeks was “remote.” With the number of infections over four months, Dr. Alfinch felt that “there were lymph nodes coming and going and/or staying.” Dr. Dekker testified that leukemia is a dramatic event that can cause a child to go from asymptomatic to very ill in a couple days. S.D.’s temperature was normal on all visits and none of Mr. Martinez’ notes indicate that the child was more ill than the assessment. Although Mr. Martinez could have missed something in his physical examinations of S.D., there is no way to be sure. In Dr. Dekker’s opinion, Mr. Martinez’ care of S.D. did not fall below the applicable standard of care. But Dr. Dekker also testified that the average four-year-old child has one upper respiratory tract infection per month with the majority being viral. A provider should not prescribe an antibiotic unless he or she knows that the child’s infection is bacterial through examination, history, and cultures. Mr. Martinez did not perform throat cultures of S.D. Mr. Martinez testified that he checked S.D.’s lymph nodes under her chin on February 6, 1998, palpated her abdomen on February 17, 1998 and March 27, 1998, but found nothing abnormal, and checked to see if “there [was] anything going on with oganomegaly,” or enlarged organs, on April 30, 1998, but did not document it. R.T. R.T. is a man who came to Clinic Adelante on July 14, 1998, complaining of chest pain for the previous four days, shortness of breath or dyspnea, that he was not eating, and a pulse of 118, a fast heart rate or tachycardia. Mr. Martinez’ treatment notes show that R.T. had smoked 3 packs of cigarettes per day for 40 years and described “diminished lung sounds,” but not wheezing. Mr. Martinez’ assessment for R.T. was “Pneumonia vs. Lung Cancer?” Mr. Martinez ran an EKG strip on R.T. before administering any medication, which showed a heart rate averaging between 120 and 150. Mr. Martinez implemented a medical plan to use an Albuterol nebulizer, a bronchial dilator. His notes describe wheezing after administration of the Albuterol. After Mr. Martinez found an atrial flutter, he called an ambulance to transport R.T. to a hospital. All the witnesses agreed that Albuterol may be contraindicated where tachycardia is present because one of its side effects is to increase the pulse rate. The ambulance personnel expressed concern to Dr. Alfinch about Mr. Martinez use of Albuterol on R.T. Dr. Alfinch testified that Albuterol is not appropriate unless the provider has determined whether there was a “cardiac problem versus a pulmonary problem . . . there’s a lot of etiology and differential diagnoses you’d have to go through to try to decide what the appropriate treatment was.” It would have been even less prudent to administer Albuterol after the EKG strip showed a pulse of up to 150. Dr. Alfinch testified that Mr. Martinez’ assessment of pneumonia or lung cancer was highly unusual in light of the symptoms noted. Dr. Dekker testified that tachycardia is commonly found in patients who are experiencing a reversible airway event, or an asthma attack, and giving Albuterol to a patient, like R.T., who had tachycardia with airway obstruction or airway event, complies with the applicable standard of care. The key is to treat the pathology. In Dr. Dekker’s opinion, Mr. Martinez’ treatment of R.T. with Albuterol did not fall below the applicable standard of care. Dr. Dekker admitted that there was no indication of wheezing on Mr. Martinez’ initial treatment notes for R.T. Mr. Martinez was able to read his treatment notes, with some difficulty. He testified that R.T. has having difficulty breathing, that Mr. Martinez could hear pleural rub through a stethoscope, which indicated pneumonia or an infection, and that R.T. did not have jugular venous distension, bruits, or edema, which would indicate a myocardial infarction. Mr. Martinez testified he suspected lung cancer because: [R.T.] was a three pack per day smoker. He told me at 40 years, he had a chronic cough. Plus I knew him from when I used to take my car over to the garage. We used to talk a lot and so just because of the signs and symptoms I heard, the rubbing, no moving of breath sounds. I knew within my heart it wasn’t cardiac but you can never rule out the possibility. Cancer of the lung because of the smoking. That was the big thing. Also his wife had come down earlier, this might have sparked it, with breast cancer. That was another thing that also might have sparked me thinking about cancer of the lung.

R.T. was transported to Maryvale Hospital, where he was diagnosed with metastatic lung cancer. He died shortly thereafter. L.F. L.F. was a 34-year-old woman who came to Mr. Martinez’ house on June 6, 1998, a Saturday, complaining of migraine headache. He told her he would meet her at Clinica Adelante. His notes indicate that L.F. told him she was allergic to Imitrex and Darvocet and that L.F. told him she had taken two Vicodin, a moderate strength narcotic for pain control, and 100 milligrams of Phenergan, which is used to decrease nausea and relax patients, at 3:00 a.m. Mr. Martinez prescribed 12 Vicodin and Phenergan, 50-100 milligrams. Before June 6, 1998, L.F.’s most recent treatment at Clinica Adelante had been in November 1994. Because she was considered to be a drug-seeker and was manipulative and abusive to staff, on November 16, 1994, Physician’s Assistant Jeffrey A. Brand had informed L.F. that she should seek treatment from a neurologist because “Gila Bend Primary Care Center [is] not equipped to manage complex complaints such as yours.” Within ten minutes of leaving Mr. Martinez, L.F. was involved in a high speed, one-car rollover accident. She was transported via Air Evac to St. Joseph’s Hospital, where she died two days later without regaining consciousness. A drug screen showed an unconfirmed positive for benzodiazepines and unconfirmed positive for barbiturates. Neither of the drugs that Mr. Martinez prescribed are contained in these categories and his notes do not reflect that she had taken any other drugs. The organ donor evaluation stated that L.F. was a prescription drug addict. Ms. Hollowell testified that on the Monday or Tuesday after the accident, Mr. Martinez had told her that he had injected L.F. with Visterrol that she had with her and had allowed her to drive off in her own automobile. Mr. Martinez testified that he looked for L.F.’s medical records at Clinica Adelante before he treated L.F., but could not find them. He did not provide any drugs to L.F. or inject her with any drugs she brought with her and never told Ms. Hollowell that he had. The nearest pharmacy where L.F. could have had the prescriptions filled was in Buckeye, 33 miles away. Mr. Martinez did not know that L.F. was a drug seeker; if he had, he would have sent her to her primary care provider or a west valley emergency room. L.F. left angry because he would not give her any medications. Mr. Martinez also testified that he performed a complete neurological examination of L.F., but did not document it. Mr. Martinez believes his examination and treatment of L.F. complied with all applicable standards. Dr. Alfinch believed Mr. Martinez’ treatment of L.F. fell below the applicable standard of care because (1) her reported allergies with her headache complaint marked her as a possible drug-seeker; (2) the dosage of Phenergan was too high because the usual range is 25 to 50 milligrams when it is prescribed in combination with other drugs and Phenergan can trigger dystonic reactions; (3) Mr. Martinez did not conduct a thorough neurological examination, including mental status, slurred speech, and alertness, or a complete history; and (4) Mr. Martinez should not have allowed L.F. to drive herself home immediately because the combination of Vicodin, Phenergan, the drug that Mr. Martinez may have injected, and the drugs identified in the St. Joseph’s drug screen may have caused L.F. to be fatigued and may have contributed to her fatal accident. Dr. Dekker testified that L.F.’s stated allergy to Imitrex meant that she was requesting a narcotic pain reliever. Although Dr. Dekker does not personally favor treatment of migraine headaches with narcotics, such treatment is accepted in the medical profession in the dosages that Mr. Martinez prescribed. Because Mr. Martinez did not administer or provide drugs and only prescribed 12 Vicodin to L.F., and her medical records were unavailable, Dr. Dekker does not believe that Mr. Martinez’ treatment of L.F. fell below the applicable standard of care. Mr. Martinez’ Termination from Clinica Adelante

Dr. Alfinch testified that he, Dr. Spires, and the other partners in Clinica Adelante decided to replace Mr. Martinez because they were concerned about the care he rendered and they had exhausted their efforts to coach, teach, or otherwise get Mr. Martinez to consult them on difficult cases. On November 24, 1998, Dr. Alfinch wrote a letter to Mr. Martinez, informing him that, because “we believe that it is in the best interests of the patients and of Clinica Adelante for the Gila Bend Primary Care Clinic to be staffed by a full-time, residency-trained, Board-Eligible or Board- Certified physician,” Mr. Martinez’ last day of scheduled patients would be December 18, 1998. Mr. Martinez told staff at Clinica Adelante that he intended to stay in Gila Bend and work as a nurse practitioner. On December 14, 1998, Dr. Alfinch wrote another letter to Mr. Martinez, confirming the termination date and asking him to return “ALL property of Clinica Adelante . . . including all medications (including Clinica-purchased generics and also all samples), syringes, needles, IV bags, and any other items which you may have.” On that same date, Dr. Alfinch informed the Board and the National Health Services Corps that Mr. Martinez would not be employed after December 18, 1998. After Mr. Martinez left Clinica Adelante’s employment, patients told staff that he was still prescribing medication on its pads. Dr. Alfinch asked for copies of the prescriptions from Fry’s Pharmacy and obtained copies of 3 prescriptions for Y.R. and one prescription for A.C., all dated December 31, 1998, and written on Clinica Adelante’s pad, some with Dr. Spire’s name crossed out and one with Mr. Martinez’ home telephone number written on it. Both Y.R. and A.C. were patients at Clinica Adelante. On January 8, 1999, Mr. Martinez was working at the “ambulance barn” in Gila Bend as a paramedic when K.S., a former patient, approached him. He diagnosed K.S. as having sinusitis and wrote her a prescription for Flonase. Mr. Martinez testified that he knew he should not have prescribed medication while he was working as a paramedic, but did so because K.S.’s condition was minor and the nearest medical facility was 50-60 miles away. On the same date that Mr. Martinez prescribed Flonase for K.S., she was examined by Dr. Cope at Clinica Adelante and prescribed Vanceril, Prednisone, Erythromycin, and Albuterol for her symptoms. Dr. Cope’s treatment note records his instruction to K.S. not to have the Flonase prescription filled. There is no evidence that Mr. Martinez created any records of his examination and treatment of Y.R., A.C., or K.S. Ms. Beck, Dr. Alfinch, and Dr. Dekker all testified that it was inappropriate for Mr. Martinez to examine or prescribe medication to K.S. while he was working as an emergency medical technician. The role of nurse practitioner is quite different from the role of emergency medical technician. Ms. Beck testified that paramedics have a very defined role and are always in contact with a physician. A nurse practitioner’s role is much broader and includes decision making and assessment skills. Dr. Alfinch also received reports that Mr. Martinez was seeing patients in a grocery store in Hyder. Dr. Alfinch called the grocery store, identified himself as a new resident, and was informed that “Dr. Martinez” would meet patients at the grocery store for medical care. Mr. Martinez testified that, when he made plans to visit his friends Mr. and Mrs. Hawthorne, who owned the Hyder grocery store, Mrs. Hawthorne telephoned her friends and customers to tell them that he was coming. Mr. Martinez testified that he performed basic examinations in the Hyder grocery store, including ears, nose, throat, mouth, belly sounds, and blood pressure. Mr. Martinez testified that Dr. Alfinch knew he examined patients in the Hyder grocery store and joked about it. On January 13, 1999, Dr. Alfinch wrote a letter to Mr. Martinez, ordering him to “cease and desist” using Clinica Adelante’s prescription pads, to return all medications and supplies to the clinic, and to “STOP PUTTING THE PEOPLE OF GILA BEND AT RISK. STOP YOUR RECKLESS BEHAVIOR.” On February 16, 1999, Dr. Alfinch complained to the Board about Mr. Martinez’ care of patients while he worked at Clinica Adelante and after his termination. Inception of the Town Clinic After Clinica Adelante terminated Mr. Martinez’ employment, the attorney for the Town of Gila Bend, Steve McClure, approached John Hopkins, Jr., M.D., a doctor with offices in Buckeye and Goodyear, about maintaining Mr. Martinez as a health care provider in Gila Bend. Dr. Hopkins initially was interested in a business arrangement with Mr. Martinez as an independent contractor. The first time Dr. Hopkins and Mr. Martinez met to discuss collaboration was in January 1999. The early meetings were devoted more to the business of the association, in terms of a site and finances, than patient care or collaboration. On January 18, 1999, Mr. Martinez notified the Board that Dr. Hopkins had become his collaborating physician. Mr. Martinez started treating patients in his home. A health care clinic must be licensed by the Arizona Department of Health Services and supervised by a physician. Neither Town Clinic, Inc. nor Mr. Martinez ever applied for or obtained a license from the Arizona Department of Health Services to operate a health care facility in his home or at any other location. On March 18, 1999, the Arizona Corporation Commission received the Articles of Incorporation for The Town Clinic, which were dated February 2, 1999. Mr. Martinez was on the board of directors and was designated the statutory agent. The post office address for the corporation is the same as Mr. Martinez’ home address. Mr. Martinez’ Care of Patients at Town Clinic At the Board’s request, Mr. Martinez provided medical charts of patients he had treated at Town Clinic. Although Mr. Martinez told the Board he had about 700 patients and had seen about 200, he only produced records for between 93-96 patients. Ms. Beck testified that Mr. Martinez told her that he only made a record if he felt the information was pertinent, but that the standard of practice for a nurse practitioner requires that a record be created each time a patient is seen because many patients are poor historians. Mr. Martinez produced a record indicating that he had treated an infant in his home in February, 1999, as follows: bd. On February 5, 1999 (the date was changed from January 28, 1998), the mother brought in a 57-day-old infant, reporting a fever of 105º. Mr. Martinez diagnosed the child with right otitis media and rhinitis and instructed the patient to return in two weeks. The record does not indicate that the child’s temperature was taken but, at the first visit, the child’s weight was recorded as 6.8 kg. be. On February 9, 1999, Mr. Martinez again examined the child, recording the child’s weight as 5.6 kg, a significant loss. Mr. Martinez noted a weak cry and sunken fontanelle and diagnosed dehydration. He administered 3 boluses of fluid intravenously and released the child to the grandmother to return home. bf. On February 10, 1999, the mother brought the child in again. Mr. Martinez’ notes indicated that the infant had improved and only the lungs were abnormal. Mr. Martinez’ diagnosis was bronchitis. bg. The next medical records are from Phoenix Children’s Hospital, which admitted the child on February 11, 1999 and discharged her on February 17, 1999, with primary diagnoses of RSV and pneumonia, which was diagnosed by chest x-ray. Mr. Martinez testified that an infant having a 105° temperature should be hospitalized. If an abundance of caution were used, the child should have gone to the hospital on February 5, 1999. But, based on the standards of the criteria of the Association of Emergency Medicine, which Mr. Martinez had garnered from “a bunch of journals,” because found the source of the temperature, the otitis media, and the way the child looked, hospitalization was “a judgment call.” On February 9, 1999, when the baby was dehydrated, Mr. Martinez testified he called Good Samaritan and St. Joseph’s Hospitals, but neither was accepting pediatric patients. Children were being sent to hospitals in California, because there were no beds in Arizona. The child’s mother probably did not want a septic workup, which Mr. Martinez did not document, but should have. After Mr. Martinez administered the three boluses of saline solution, he kept the infant at his house for about 8 hours to monitor her. The child’s family lived just down the street from Mr. Martinez, so he could be quickly reached. On February 10, 1999, the child’s condition had improved and she had positive diaper changes. Mr. Martinez felt his care of the infant complied with applicable professional standards for a rural practice. Ms. Beck testified that the RSV virus is common in young children and may be fatal. A baby this ill in an outlying area should have been transported to a higher care facility. Optimal conditions for administration of intravenous fluids is in a hospital, mobile unit, or licensed home health care provider, not at an unlicensed facility like Mr. Martinez’ home. Mr. Martinez’ history and physical of this infant were adequate, however. Dr. Dekker testified that he has administered intravenous fluids in his office. As soon as a child can take fluids orally, it is safe to send the child home. On April 21, 1999, Mr. Martinez examined a patient with a laceration on his foot. Mr. Martinez testified that he did not remember if he had ever seen the patient before this examination. Mr. Martinez took no history and performed no physical examination, which he admitted was not standard practice. On June 23, 1999, Dr. Hopkins met with Mr. Martinez and “voiced serious concerns about our present business relationship” and asked Mr. Martinez “to cease seeing patients and direct them to our offices . . . .” Mr. Martinez had never consulted Dr. Hopkins about patient concerns, although it was clear to Dr. Hopkins that Mr. Martinez was seeing a number of patients. Because Mr. Martinez wanted to function independently and seemed insulted when Dr. Hopkins told him he would have to work under a physician’s supervision, while Dr. Hopkins wanted to be kept apprised and to supervise, Dr. Hopkins decided to sever his relationship with Mr. Martinez. Ms. Beck testified that it is very important for nurse practitioners to consult with a physician. They cannot know everything and, in difficult or uncertain cases, need to collaborate with physicians, who are required to have much more extensive training, knowledge, and experience. On July 8, 1999, Mr. Martinez examined a patient who complained of bilateral flenk pain and a temperature, which is indicative of a kidney infection, in his home. The patient had seen another health care provider sometime earlier, who had prescribed Cipro. Mr. Martinez diagnosed a kidney infection, or phylonefritis, and advised the patient to continue taking Cipro 750 mg. for 10 days. He testified that hospitalization is indicated after a phylonefritis diagnosis only if the patient is very young or old, pregnant, or diabetic. This patient was none of those things. Ms. Beck testified that Mr. Martinez’ documentation of the history of the patient with phylonefritis was inadequate. Usually phylonefritis starts as a bladder infection; when the infection reaches the kidney, it could lead to sepsis and death. The standard of care for phylonefritis requires hospitalization for all patients, not just those who are especially vulnerable, and administration of intravenous antibiotics. On July 20, 1999, Mr. Martinez saw a baby twice in the same day. On the first visit, at 12:30 p.m., he noted a large, red tonsil, diagnosed bilateral otitis media, and prescribed an antibiotic. On the second visit, at 4:30 p.m., the child returned with a “fine rash.” Mr. Martinez prescribed Benadryl. He testified that he did not believe the child was having an allergic reaction to the antibiotic because he had seen her previously at Clinica Adelante and the child was in no apparent distress and had clear breath sounds. Ms. Beck testified that the appearance of the rash indicated a possible allergic reaction to an antibiotic and that the standard of care required discontinuance of the antibiotic, not prescription of Benadryl, which would only mask the symptoms of the allergic reaction. In addition, Mr. Martinez should have taken a throat culture. On August 16, 1999, Dr. Hopkins informed the Board that he was no longer Mr. Martinez’ collaborating physician. Mr. Martinez’ Treatment of Patients at Good Samaritan as Registered Nurse As noted above, Mr. Martinez began working part-time as a registered nurse in the emergency room at Good Samaritan Regional Medical Center in Phoenix on September 26, 1998, while he was employed full-time as a nurse practitioner by Clinica Adelante. Mr. Martinez testified that he did not know what Samaritan’s Triage Guidelines were and had never read them because they had never been provided to him. When he worked as a triage nurse in the Good Samaritan emergency room, he used his understanding of national guidelines to rate the severity of patients’ symptoms and the necessity for expedited evaluation or treatment. Ms. Beck testified that the standard requires a registered nurse to obtain and follow his or her employer’s policies and procedures, because they may vary among facilities. Policies and procedures ensure patients’ safety. G.D. On November 17, 1999, when Mr. Martinez was working as the triage nurse in the Good Samaritan emergency room, patient G.D., a 44-year-old man, came to the emergency room at 3:10 a.m., complaining that he had awakened by the sudden onset of burning chest pain and presenting with an elevated blood pressure. Mr. Martinez triaged G.D. as a level 3. G.D. was not seen by a physician until 4:54 a.m., was diagnosed as having suffered a myocardial infarction, and he probably suffered permanent damage to his heart muscle as a result of the delay in treatment. Good Samaritan’s Triage Priority Assessments define Level 2, Emergent as “conditions that require rapid, but not immediate medical care.” Included among such conditions is “[n]on-symptomatic chest pain in adult.” Level 2 patients are taken immediately from the waiting room to a bed; level 3 patients, who have “conditions that are not severe or immediately life threatening, may be left waiting for hours. Good Samaritan’s Emergency Center Triage Protocol for chest pain is to “[t]ake patient immediately to a monitored treatment area.” The goal of the National Registry of Myocardial Infarction goal of “door to treatment” time is 30 minutes because, the longer an occlusion is left untreated, the more the heart muscle will be damaged. Because the heart cells do not regenerate, “time is muscle.” Ms. Modena and Ms. Smith testified that Mr. Martinez failed to follow Good Samaritan’s triage guidelines or comply with applicable standards of care in rating G.D. a Level 3 for triage. Mr. Martinez testified that he informed the charge nurse that G.D. was a level 2 and should go back to monitored care immediately, but she told him that no bed was available and that she would get G.D. in 10 minutes. She did not do so. Mr. Martinez testified that he could not put the onus on the charge nurse by assessing G.D. at a level that the charge nurse could not accommodate. H.C. On January 17, 2000, when Mr. Martinez was working as the triage nurse in the Good Samaritan emergency room, patient H.C., a 33-year-old woman who was 8 weeks pregnant, came to the emergency room at 12:40 a.m., complaining that she had abdominal and upper epigastric pain, but no vaginal bleeding. Mr. Martinez triaged H.C. as a level 3. H.C.’s husband went up to Mr. Martinez several times because she was in such pain. Nonetheless, she was not taken to a room until 4:35 a.m. The treating physician learned that she had initially gone to St. Joseph’s hospital, had waited approximately 45 minutes, and then gone to Good Samaritan. In addition, H.C. had lost her first child at 22 weeks’ gestation and had problems with complications from a pulmonary emboli after her first pregnancy. According to H.C.’s husband, after she was transferred to the room, she got up to go to the bathroom and fell, hitting her abdomen. She later suffered a cardiac arrest and underwent surgery, during which it was discovered that her “entire small bowel was noted to be massively necrotic . . . .” H.C. died during surgery. The Good Samaritan Triage Prior Assessments rate as a level 2 “[a]bdominal pain . . . threatened/spontaneous abortion . . . .” Ms. Smith and Ms. Modena testified that a pregnant woman who presents in the emergency with abdominal pain may have an ectopic pregnancy, which can be fatal. The potential blood clotting problem indicated by H.C.’s history should have been noted because it indicated that H.C. was a potentially high risk patient. Dr. Dekker testified that, during the winter, in local emergency rooms, waits of 4 or 5 hours are not uncommon. In fact, emergency rooms have been known to close when the average wait exceeds 12 hours. In light of these conditions, Dr. Dekker testified that he did not believe that Mr. Martinez’ treatment of H.C. fell below the applicable standard of care. Mr. Martinez’ Termination from Good Samaritan On January 21, 2001, Ms. Beck contacted Ms. Modena about the Board’s investigation. On February 4, 2000, Robert Baron, M.D., Co-Director of the Emergency Center at Good Samaritan, wrote Ms. Modena a letter, expressing his fear that Mr. Martinez “would bring much of his Nurse Practitioner attitude to work in the Emergency Department.” Dr. Baron recounted one experience in the emergency room, when Mr. Martinez had determined that a patient was not ill and began starting lines and drawing bloods, even though Dr. Baron had no patients and could have seen the patient immediately. When Dr. Baron was finally notified that he had a new patient, “it was obvious on clinical exam that the patient needed to be admitted and the process was started before any lab results were back.” Although Dr. Baron did not mind nurses taking initiative, he felt that Mr. Martinez’ failure to work as a team lengthened the patient’s stay by at least 30 minutes. Ms. Modena was concerned about Mr. Martinez’ behavior and performance in the emergency room and recommended that he take leave and see a psychiatrist. On February 9, 2000, Mr. Martinez advised Ms. Modena that he was seeing a psychiatrist, taking Prozac, and felt that he could return to work. Respondent felt that his problems all involved documentation; Ms. Modena informed him and testified at the hearing that her primary concern was Mr. Martinez’ poor patient assessment skills. On February 27, 2000, Mr. Martinez terminated his employment with Good Samaritan after Ms. Modena counseled him that she did not believe he could perform to the level of patient care she would expect from an emergency room nurse. Ms. Modena had offered Mr. Martinez short-term disability to allow him to participate in a daily treatment program to address his mental health issues, but he declined the offer because treatment programs were too far from his home in Gila Bend. Mr. Martinez’ Mental Health and Legal Issues At 8:52 a.m. on October 22, 1999, the Maricopa County Sheriff’s Office investigated an assault/domestic violence complaint by Mr. Martinez’ wife at Mr. Martinez’ home in Gila Bend. Mrs. Martinez told officers that Mr. Martinez had grabbed her by the throat when she was getting ready to leave for work during an argument about who would take Mr. Martinez’ 20-year-old daughter to work, when Mrs. Martinez told Mr. Martinez that he was not a good father. Mrs. Martinez told officers that Mr. Martinez had never hit her before, although he had verbally abused her. As a result of this complaint, on February 8, 2000, Mr. Martinez pled guilty to assault/domestic violence, a class one misdemeanor, and was placed on summary probation for 1 year. On January 8, 2000, at 8:45 a.m., Mr. Martinez reported an incident of assault at his home to the Maricopa County Sheriff’s Office against Mrs. Martinez. Mr. Martinez told the investigating officer that he had been separated from Mrs. Martinez for about three months, but called her when his car had mechanical problems while he was en route to work and asked her to follow him home. Mr. Martinez reported an argument and that, when Mrs. Martinez was getting into her car to leave, he walked over and pulled her purse out of the back seat and took out the cellular telephone, because he had paid for it and she had gotten enough “free bees” from him. Mrs. Martinez then hit him on the left side of his head, using her hand, although he was not sure whether she used an open or closed fist. Mr. Martinez then broke the telephone. On March 6, 2000, Mr. Martinez began treatment with therapist Bud Leikvoll, and appeared for appointments on that date, March 14, 2000, March 21, 2000, April 3, 2000, and April 25, 2000. The clinical notes dated April 3, 2000 say that “CLT IS DOING MUCH BETTER. HIS WIFE DECIDED SHE DIDN’T WANT THE DIVORCE & WOULDN’T SIGN PAPERS. CLT WAS HAPPY TO HEAR THAT. . . . CLT IS DEMONSTRATING GOOD CHANGE, CONTINUES TO BE POSITIVE. IS WORKING NOW & CONCENTRATING ON HIS NURSING LICENSE ALLEGATIONS.” On April 4, 2000, Mr. Martinez was transported by air ambulance to Good Samaritan after a suicide attempt in which he reported ingesting 7 Ativan, Percocet and 1/8 pint of Vodka. A urine drug screen performed after the attempt was negative for narcotics, but showed a level of 128 for ethanol, which Ms. Smith testified would translate to a blood alcohol content of .13. Because the screen was performed 4 hours after the attempt and alcohol metabolizes at a rate of 1 ounce per hour, the drug screen indicates alcohol intake far in excess of the approximately 2 ounces that Mr. Martinez reported. Mr. Martinez was treated for depression and, at his request, discharged on April 7, 2000, with directions to follow up with Dr. Campbell, a psychiatrist. Except for the one visit to Mr. Leikvoll on April 25, 2000, there is no evidence that Mr. Martinez sought or obtained further therapy. Mr. Martinez testified that he did not seek treatment from a psychologist or psychiatrist because he could not afford it. Mr. Martinez later told Ms. Beck and testified at the hearing that he had obtained the Percocet he used in his suicide attempt from an elderly patient. Mr. Martinez testified that he meant to save the Percocet to give to other patient. Mr. Martinez also admitted prescribing Prozac to his wife and taking it himself. Dr. Dekker, Ms. Beck, and Ms. Smith testified, and Mr. Martinez agreed, that it is unethical and below the applicable standard of care for a nurse practitioner to use medication for anyone other than the person to whom it is originally prescribed or to prescribe medication for a family member. On September 20, 2000, at the Board’s request, Mr. Martinez voluntarily submitted to a psychological screening by Marilyn Kieffer-Andrews, CNM, RNP, Ph.D. Dr. Kiefer-Andrews’ report noted that Mr. Martinez’ MMPI-2 results did not clearly indicate the presence of psychopathology, but that he did “show some signs of a nonconforming or strong-willed personality style.” Based on the information that Mr. Martinez supplied, Dr. Kieffer- Andrews recommended to the Board that he be placed on probation for two years to complete regular counseling sessions. Dr. Kieffer-Andrews testified that Mr. Martinez did not tell her that he had obtained the Percocet for his suicide attempt from an elderly client, that he prescribed Prozac for himself in his wife’s name, that he failed to follow up on psychiatric or psychological care following his release from Good Samaritan, that he had been involved in more than one incident involving domestic violence, that the Board’s investigation involved the care rendered to G.D. and H.C. in the Good Samaritan emergency room, or that Board was concerned about Mr. Martinez’ assessment and care of patients, not just documentation and his mental health. Considering this additional information, Dr. Kiefer-Andrews testified that she considered Mr. Martinez unsafe to practice as a registered nurse or, especially, a nurse practitioner. Mr. Martinez testified and told Dr. Kiefer-Andrews that he has substance abuse problems. But he has not attended Alcoholics Anonymous since 1998, because he did not want to go to meetings in Gila Bend, which some of his former patients might attend, and it was too far to drive to another location. Because Mr. Martinez drives an 8-cylinder truck, he testified that he cannot afford to attend AA meetings at a distant site. Ms. Smith is a former consultant to the Board’s “Can Do” program, a 3-year confidential program for impaired nurses who are not involved in a pending complaint investigation. In her current position, she monitors compliance with the program and participates in the Board’s investigations. Ms. Smith testified that chemical dependency is a chronic progressive disease with no cure. Mr. Martinez is an alcoholic. Remission requires abstinence. One of the symptoms of chemical dependency is the tendency to minimize, deny, and distort the consequences of use. Mr. Martinez, by his own admission, is not in recovery because he has failed to seek appropriate ongoing treatment or to embrace the concept of a sponsor. Instead, he elects to deal with his disease on his own, without success. Dr. Dekker testified that, in his opinion, Mr. Martinez had great potential to serve the community of the underserved if he improves his documentation and teamwork, addresses his substance abuse and other mental health issues, works on his interpersonal communication style, and finds something outside of medicine to fill his personal needs. Dr. Dekker testified that he believes Mr. Martinez should be placed on probation and required to be in a professional setting where he is provided with supervision and peer review and required to address his therapeutic issues. Respondent appears to be highly educated and genuinely concerned about his patients’ well-being. He has worked as a registered nurse for Southwest Ambulance for 1½ years, without complaint. CONCLUSIONS OF LAW 1. The Board bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[3] 2. The Board established that Mr. Martinez violated A.R.S. § 32-1601(14)(d) through a “conduct or practice that is or might be harmful or dangerous to the health of patient or the public” in the following particulars: c. In his treatment of S.D.,[4] the misconduct proscribed in A.A.C. R4-19- 403(1), (5), and (6); d. In his treatment of R.T.,[5] the misconduct proscribed in A.A.C. R4-19- 403(5); e. In his treatment of L.F.,[6] the misconduct proscribed in A.A.C. R4-19- 403(5) and (6); f. In his treatment of Y.R., A.C., and K.S.,[7] the misconduct proscribed in A.A.C. R4-19-403(1), (5), and (11); g. In examining patients in the Hyder grocery store,[8] the misconduct proscribed in A.A.C. R4-19-403(1) and (5); h. In his care of the infant who eventually was diagnosed and treated for RSV,[9] the misconduct proscribed in A.A.C. R4-19-403(1) and (6); i. In his care of the patient with the foot laceration,[10] the misconduct proscribed in A.A.C. R4-19-403(1) and (5); j. In his care of the patient who complained of flenk pain,[11] the misconduct proscribed in A.A.C. R4-19-403(1) and (5); k. In his care of the baby who developed a rash after Mr. Martinez prescribed antibiotic,[12] the misconduct proscribed in A.A.C. R4-19- 403(1) and (6); l. In his triage of G.D.,[13] the misconduct proscribed in A.A.C. R4-19- 403(1), (3), and (6); m. In his triage of H.C.,[14] the misconduct proscribed in A.A.C. R4-19- 403(1), (3), and (6); and n. In using Percocet he had obtained from an elderly patient and taking Prozac he had prescribed to his wife,[15] the misconduct proscribed in A.A.C. R4-19-403(1) and (13). 15. The Board established that Mr. Martinez committed an “act that deceives, defrauds, or harms the public,” in violation of A.R.S. § 32- 1601(14)(h), p. When he prescribed medication to Y.R., A.C., and K.S. and examined patients in the Hyder grocery store between December 18, 1998 and January 18, 1999, when he had no collaborating physician;[16] q. When, after Dr. Hopkins asked Mr. Martinez to stop seeing patients under his collaboration agreement on June 23, 1999, he treated the patient with flenk pain on July 8, 1999 and the baby who developed the rash on July 20, 1999, when he had no collaborating physician. 18. The Board has also established that Mr. Martinez has unresolved chemical dependency and mental health issues, which he has not made any serious effort to recognize or resolve, that presently compromise his safety to practice. 19. The evidence also shows that Mr. Martinez is capable of making significant contributions to patients and to the nursing profession if he manages his medical and mental health issues and reevaluates his approach to patient care. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board of Nursing under the authority of A.R.S. § 32-1663(D), Revoke Mr. Martinez’ Nurse Practitioner Certificate No. AP0640. Suspend Mr. Martinez’ Nurse License No. RN000099545 for a period of not less than one year. Mr. Martinez’ license shall not be restored until a) He provides proof to the Board of having taken at least 100 hours of continuing education in the areas of the responsibilities of a registered nurse, patient assessment, and documentation; and b) He provides proof of participation in AA or another 12-step program, at least 3 times a week, for a period of at least a year; If Mr. Martinez’ Registered Nurse License is restored to him, the Board shall place it on probation for a period of 3 years and require him to participate in the Can Do program. Done this day, April 11, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Copy mailed this ____ day of April, 2001, to:

Joey Ridenour, Executive Director State Board of Nursing ATTN: Vicky Driver 1651 West Morten, Suite 150 Phoenix, AZ 85020

By ___________________________

----------------------- [1] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[2] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[3] Black’s Law Dictionary at page 1064 (6th ed. 1990).

[4] See Findings of Fact Nos. 19-25, supra.

[5] See Findings of Fact Nos. 26-31, supra.

[6] See Findings of Fact Nos. 32-38, supra.

[7] See Findings of Fact Nos. 41-45, supra.

[8] See Findings of Fact Nos. 46-47, supra.

[9] See Findings of Fact Nos. 55-58, supra. [10] See Findings of Fact No. 59, supra.

[11] See Findings of Fact Nos. 62-63, supra.

[12] See Findings of Fact Nos. 64-65, supra.

[13] See Findings of Fact Nos. 70-74, supra.

[14] See Findings of Fact Nos. 75-79, supra.

[15] See Finding of Fact No. 90, supra.

[16] See A.A.C. R4-19-505 (which requires collaboration for a nurse practitioner to perform these kinds of acts).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826