ALJDEC

00F-22700-MDX · Board of Medical Examiners · 2000-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: The parties agreed to submit legal memoranda to the tribunal in lieu of formal hearing. The record in this matter was closed on May 24, 2000. APPEARANCES: Robert D. Bohm, Esq., represents the Applicant/Appellant. Assistant Attorney General Gordon S. Bueler represents the Arizona Board of Medical Examiners. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Applicant/Appellant, Jenny Pei-Jen Guo, M.D., is appealing the denial of her application for licensing to practice medicine by the Arizona Board of Medical Examiners. The Board denied Dr. Guo’s application based upon its determination that she failed to demonstrate that she met the basic requirements for licensure by failing to successfully complete all three parts of the examination of the National Board of Medical Examiners within a seven year period as required by A.R.S. § 32-1426. 2. The parties, through counsel, stipulated to the following facts[1] in this matter:

a) Jenny Pei-Jen Guo, M.D., filed an application for licensure on April 6, 1998, with the Arizona Board of Medical Examiners. b) As part of that application she paid the required fee. c) The licensing application of Dr. Guo is complete. d) Dr. Guo successfully completed and passed Part 1 of the National Board of Medical Examiners examination in September of 1989, Part 2 in September of 1990, and the U.S.M.L.E.[2] Step 3 examination in December of 1996, after previously failing it in June of 1995. e) Dr. Guo is a graduate of an approved school of medicine. f) Dr. Guo has successfully completed a twelve (12) month hospital internship. 7. A review of the Board’s application file for Dr. Guo[3] reveals, among other things, the following:

a) Dr. Guo graduated from the University of Southern California Medical School on May 9, 1991. b) From June, 1991, to June, 1992, Dr. Guo did an internship in Internal Medicine at Maricopa Medical Center. c) From June, 1992, to November, 1995, Dr. Guo did a residency in Anesthesiology at Maricopa Medical Center. Dr. Guo was placed on departmental program probation from September 27, 1992, to November 23, 1994, due to her poor performance on the In-Training Examination and her failure to meet the responsibilities of a resident. Dr. Guo was placed on institutional probation on November 23, 1994, which was reported to the American Board of Anesthesiology on January 26, 1995. Dr. Guo’s removal from probationary status was contingent on significant improvement in her knowledge base and her successful completion of oral and written exams. Dr. Guo was dismissed from the program on November 17, 1995, due to her inability to meet the conditions of her probation, in particular her poor academic and clinical performance. d) From October, 1995 to April, 1998, Dr. Guo was not participating in the residency program and was unemployed. During this period of time Dr. Guo was being treated for severe depression. e) From April, 1998, to the present, Dr. Guo has been employed in non- medical positions. f) Dr. Guo’s application was received by the Board on September 5, 1998. g) Dr. Guo has not been licensed to practice medicine by any other jurisdiction.

CONCLUSIONS OF LAW

1. The Arizona Board of Medical Examiners is authorized to grant or deny licenses to practice medicine in the State of Arizona pursuant to A.R.S. § 32-1421 et seq. 2. Dr. Guo, as the Applicant/Appellant in this matter, has the burden of proving her qualification to be licensed by the Arizona Board of Medical Examiners, pursuant to applicable regulatory standards. 3. A.R.S. § 32-1426(B) is inapplicable in this matter to the extent that it applies to “(a)n Applicant seeking licensure based on any jurisdiction’s examination”. Dr. Guo is not such an applicant. 4. Dr. Guo has been certified by the national board of medical examiners as having successfully passed all three parts of the required examination necessary for licensure by endorsement. While it is true that Dr. Guo did not pass Part III of the NBME examination, she did pass Step 3 of the USMLE examination, which it is determined is an acceptable substitute for the former as provided for in A.R.S. § 32-1426(B) for applicants seeking licensure based on any jurisdiction’s examination. 5. A.R.S. § 32-1426(A) does not set forth a deadline for an applicant to successfully complete all portions of the examination necessary for licensure by endorsement. However, a reasonable time for successfully completing and passing all portions of the examination may be inferred. A.R.S. §§ 32-1425, 32-1425.01 and 32-1426(B) refer to such a period as seven years. While Dr. Guo took seven years and three months to successfully complete all three portions of the examination, it is concluded that she substantially complied with the requirements of A.R.S. § 32-1426(A) within a reasonable time. 6. Pursuant to A.R.S. § 32-1422(B), the Board of Medical Examiners has the authority to investigate the physical, mental and medical skill competency of applicants. Notwithstanding the conclusion reached above that Dr. Guo satisfies the requirements of A.R.S. § 32-1426(A) for licensure by endorsement, it is further concluded that the Board should be afforded the opportunity to adequately assure itself that Dr. Guo has the necessary physical, mental and medical skill competence to practice medicine prior to the issuance of a medical license to her.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the prior denial of Dr. Guo’s Application for a License to Practice Medicine through Endorsement by the Board of Medical Examiners for the reason that Dr. Guo did not meet the basic requirements for licensure by failing to successfully complete all three parts of the examination of the National Board of Medical Examiners within a seven year period pursuant to A.R.S. § 32-1426 be overturned and vacated. It is further recommended that the application process shall continue and that the Board of Medical Examiners be given an opportunity to investigate Dr. Guo’s application with respect to her competency to practice medicine as provided for in A.R.S. § 32-1422(B). It is further recommended that if favorable action on Dr. Guo’s application is still indicated, then a license to practice medicine shall be promptly issued to Dr. Guo.

Done this day, June 13, 2000

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Board of Medical Examiners Claudia Foutz, Executive Director ATTN: Gail Milner, R.N. 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________ ----------------------- [1] Stipulation of Facts dated May 15, 2000, filed by counsel with the Office of Administrative Hearings on May 16, 2000. [2] United States Medical Licensing Examination [3] Attached to the Arizona Board of Medical Examiners’ Notice of Filing of Licensing Application filed with the Office of Administrative Hearings on May 19, 2000.

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