ALJDEC

01F-10125-MDX · Board of Medical Examiners · 2001-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2001. The record in this matter was kept open until December 14, 2001 to allow the parties to file post-hearing memoranda. APPEARANCES: The Arizona Board of Medical Examiners was represented by Assistant Attorney General Roberto Pulver. The Respondent, Gordon Holt., M.D., appeared personally and was represented by his attorneys, John H. Westover, Esq., and David S. Shughart, Esq. Also appearing as witnesses were Michel Sucher, M.D., Lorraine Macchione, R.N., Ray Price, M.D. and Ronald Palmer. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Arizona State Board of Medical Examiners (“BOMEX”) is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. 2. The Respondent, Gordon Holt, M.D., is the holder of License Number 10125 for the practice of allopathic medicine issued by BOMEX. 3. On or about January 16, 1989, the Respondent and BOMEX entered into a Stipulation and Order (“1989 Stipulation and Order”) in order to protect the public and ensure Respondent’s ability to safely engage in the practice of medicine. 4. The 1989 Stipulation and Order provided, among other things, that Respondent participate in a rehabilitation treatment program, abstain completely from the consumption of alcoholic beverages and cooperate with BOMEX’s monitoring of his aftercare treatment program and his medical practice. 5. In November of 1988, Respondent received 30 days of inpatient alcohol treatment at Sierra Tucson. 6. From January, 1988 until January, 1993, Respondent participated in BOMEX’s Monitored Aftercare Program (“MAP”) for physicians and physician assistants. Respondent, whose drug of choice was alcohol, successfully completed that program with no problem. 7. On or about October 24, 1992, BOMEX issued an order terminating the 1989 Stipulation and Order, effective as of January 20, 1993. BOMEX had determined that no further monitoring of Respondent by it was necessary. 8. On or about September 20, 1998, at approximately 10:00 p.m., Respondent appeared at Thunderbird Samaritan Hospital to perform an ear-nose-throat surgery. Respondent was on-call for another physician. The patient’s family reported to hospital staff that they could smell alcohol on Respondent’s breath. Another surgeon performed the surgery in place of Respondent. 9. On or about September 25, 1998, Marc J. Rosen, M.D., who served as Chief of Staff at Thunderbird Samaritan Hospital, reported the September 20, 1998 incident with Respondent to BOMEX. Dr. Rosen advised that one hospital employee and another physician had also stated that they had smelt alcohol on Respondent’s breath during that time. Dr. Rosen expressed his concern that Respondent “may be unable to safely engage in the practice of medicine because of possible impairment”[1]. 10. By letter dated October 17, 1998, Robin King, a BOMEX medical investigator, wrote a letter to Dr. Rosen acknowledging receipt of his letter of complaint. Investigator King further advised Dr. Rosen that BOMEX would conduct a through investigation of Respondent. 11. On November 4, 1998, an investigational interview with Respondent was conducted with Investigator King and Michel Sucher, M.D. Dr. Sucher is a medical director of BOMEX’s Monitored After Care Program and a consultant in addiction medicine. 12. During the November 4, 1998 investigational interview, Respondent reported that he believed that he had abused alcohol in the 1980s prior to his treatment in 1988. 13. Also during that investigational interview, Respondent admitted that he had consumed less than a glass of wine at approximately 7:00 p.m. on September 20, 1998 knowing that he was on call for another physician. 14. On or about November 11, 1998, Dr. Sucher dictated a Report and Summary concerning the September 20, 1998 incident. Dr. Sucher recommended that Respondent undergo a four day inpatient evaluation to determine the current state of his alcohol dependence and to assess specific treatment and monitoring recommendations, if necessary, to assure Respondent’s ability to practice medicine with reasonable skill and safety. Dr. Sucher also recommended that a confirmatory investigation of the other complainants would be appropriate. 15. By letter dated November 25, 1998, Investigator King informed Respondent that Charles Shaw, M.D., the addictionologist at St. Luke’s Behavioral Health Center in Phoenix, had agreed to perform an independent assessment regarding the question of his impairment as an alternative to an inpatient evaluation at an out-of-state treatment center. 16. On January 11, 1999, Dr. Shaw performed an assessment of Respondent at St. Luke’s Behavioral Health Center. Upon completion of that assessment, Dr. Shaw made the following impressions:

AXIS I Alcohol dependency Bipolar disorder AXIS II Deferred AXIS III History of inguinal hernia repair History of right deep venous thrombosis AXIS IV Moderate stressors secondary to problems with

medical licensing board AXIS V Global Assessment of Functioning, 45 on admission and 55 on discharge and highest 80 the past year

17. Dr. Shaw recommended to Respondent that he abstain completely from consuming alcohol. He further recommended that Respondent submit to frequent drug screens and monitoring in lieu of inpatient treatment. 18. Dr. Shaw had ordered laboratory studies for Respondent. One of the tests was the Carbohydrate-Deficient Transferrin (“CDT”) test to determine if Respondent had relapsed. Respondent’s test result was positive. The normal range is from 0 to 6.0. Respondent’s test result was 6.7, which indicated to Dr. Shaw that Respondent had alcohol consumption above 60 cc on a daily basis for a period of eight to ten days prior to testing. 19. Upon receiving the CDT test results, Dr. Shaw opined that Respondent had relapsed and that he had consumed more alcohol than he reported. 20. On or about June 8, 2000, Respondent wrote to Ron Anderson, BOMEX’s enforcement administrator, inquiring into the status of his investigation. Respondent had not heard from BOMEX since January of 1999. Because he had not heard from BOMEX, Respondent had assumed that the investigation was closed but discovered that it was still active when he applied for privileges at a local hospital. 21. On August 15, 2000, an investigational interview with Respondent was conducted by Dr. Sucher and BOMEX investigators Ron Palmer and Ron Hertzog. During that investigational interview, Respondent admitted that he continued to consume alcohol a few times a year despite a history of alcohol dependency treatments. Respondent did not believe that his drinking alcohol was problematic. 22. By letter dated August 22, 2000, Tom Adams, BOMEX’s assistant director for regulation, wrote to Respondent to advise him that due to his prior BOMEX stipulation and subsequent relapse he must request that BOMEX place his medical license on inactive status in order to avoid summary suspension pursuant to A.R.S. § 32-1451(D). Mr. Adams also included a request for inactive status with cause and order granting inactive status form for Respondent to complete. 23. Respondent elected not to request that BOMEX place his medical license on inactive status with cause. He informed BOMEX staff of his decision on November 11, 2000. 24. By letter dated November 28, 2000, Amanda Diehl, BOMEX’s operations administrator, advised Respondent that BOMEX would be considering his case at its regularly scheduled meeting on December 13-15, 2000. Respondent was informed that staff’s recommendation would be for his medical license to be summarily suspended. Respondent was advised that he could address BOMEX during the “Call to the Public”. 25. On December 15, 2000, BOMEX met to review Respondent’s case. BOMEX voted to enter an order requiring Respondent to undergo a comprehensive inpatient evaluation and have the results sent to BOMEX for further action. In addition, BOMEX voted to order Respondent to participate in the color of the day urine program until the results of the evaluation had been forwarded to BOMEX staff. 26. By Interim Order dated January 12, 2001, BOMEX required Respondent to do the following:

a) complete a comprehensive inpatient evaluation at Talbott Recovery Campus within six months, and to have the results of that evaluation forwarded to BOMEX staff for further action; b) participate in the color of the day urine program until the results of the evaluation had been forwarded to BOMEX staff; and, c) be responsible for any and all expenses relating to the above.

27. Respondent underwent a 96-hour assessment at Talbott Recovery Campus in Atlanta, Georgia. Members of the assessment team were George MacNabb, M.D., Chemical Dependency and Internal Medicine; Steven Snook, Ph.D., Psychological and Neuropsychological testing; Jean D’Aprix, R.N., Assessment Coordinator; and Eric Hedberg, M.D., Psychiatric Assessment and Assessment Director. 28. The 96-hour assessment resulted in the following diagnostic impressions:

AXIS I History of alcohol dependence, 303.9 Nicotine dependence, 305.1 AXIS II None. AXIS III Chronic obstructive pulmonary disease. History of deep vein thrombosis. AXIS IV Moderate. AXIS V GAF of 75, if symptoms are present, they are transient and expected reactions to psychosocial stressors. Best in past year is 75.

29. Eric Hedberg, M.D., the Associate Medical Director at Talbott Recovery Campus, stated in the assessment report that, by Respondent’s own account, Respondent did not give a history consistent with alcohol dependency. However, Dr. Hedberg found it very concerning that Respondent had been through treatment for alcohol dependence, that he had attended Alcoholics Anonymous for years and that he had been at Thunderbird Samaritan Hospital on November 20, 1998, with alcohol on his breath when he reported for surgery while on-call. 30. As a result of the 96-hour assessment, the assessment team recommended the following:

a) That Respondent re-enter treatment on an outpatient basis for alcohol abuse. b) That Respondent be monitored by the Arizona Physician’s Health Program. c) That if Respondent were unable to maintain abstinence, then he should be treated at a facility that specializes in the treatment of health care professionals.

31. Dr. Sucher subsequently reviewed the following materials pertaining to Respondent’s case:

a) Complainant letter from Thunderbird Samaritan Medical Center. b) Investigation Complaint Summary dated November 6, 2000. c) Investigation report. d) Interim Order. e) Biological Fluid Test reports (8) from January 22, 2001 through May 20, 2001. f) Talbott Recovery Campus Evaluation February 26, 2001 through March 1, 2001. g) St. Luke’s Hospital Evaluation January 11, 1999 through January 12, 1999. h) Report and Summary authored by Michel A. Sucher, M.D., November 1998. i) Transcripts of BOMEX interviews with Dr. Holt on November 4, 1998 and August 15, 2000.

Dr. Sucher then prepared a written report dated June 22, 2001 which was sent to Kathleen Muller, BOMEX’s monitored aftercare program coordinator. Dr. Sucher made the following conclusions:

a) That Respondent does suffer from alcohol dependency. b) That Respondent demonstrated a relapse on September 20, 1998, while at Thunderbird Samaritan Hospital. c) That Respondent had been in relapse since he began drinking alcohol following the completion of his rehabilitation in 1993. d) That Respondent did not comply with the applicable statute requiring him to inactivate his medical license with cause and to enter into a long-term treatment program. e) That Respondent did comply with BOMEX’s Interim Order dated January 12, 2001 during which period Respondent’s tests were negative for alcohol and drugs.

32. Dr. Sucher wrote that he agreed with the Talbott Recovery Campus recommendation that Respondent enter into the monitored aftercare program. Dr. Sucher suggested that Respondent participate in that program for five years. 33. Dr. Sucher also concurred with the recommendation that Respondent successfully complete an outpatient relapse prevention/alcohol and drug treatment program rather than a 30-day inpatient treatment program since he had demonstrated six months of negative monitored urine screens. 34. On August 10, 2001, Respondent submitted a random urine sample. The sample was assigned identification number 1914769. 35. At the time of the August 10, 2001 urine screen, a Test Request Form and Chain of Custody was completed. Respondent completed a donor consent and certification wherein he certified, among other things, that he provided the urine sample, that the specimen bottle was sealed in his presence and that the information in the form and label affixed to the specimen bottle were correct. 36. Erin Weber, the specimen collector, also completed a collector certification which certified that the Respondent’s August 10, 2001 urine sample had been presented to the collector by Respondent, that Respondent’s sealed urine sample bore the same identification number as on the Test Request Form and Chain of Custody and that the sample had been collected, labeled and sealed in Respondent’s presence. The collector certification acknowledged release of the urine specimen to Southwest Laboratories. 37. The Test Request Form and Chain of Custody also contains a Laboratory Receipt and Certification completed by Leslie Chino, who certified that the specimen bottle received had the assigned identification number, that it was received in a sealed bag and that the bottle seals were intact. 38. Respondent’s August 10, 2001 urine sample, specimen identification number 1914769, tested positive for alcohol. 39. By letter dated August 23, 2001, Kathleen Muller, the coordinator of the monitored aftercare program, offered Respondent a request for inactive status with cause and order granting inactive status form for his signature due to his positive August 10, 2001 drug screen. Ms. Muller advised Respondent that if he did not return the signed documentation by September 3, 2001, then BOMEX would proceed with proceedings to summarily suspend his medical license. 40. By letter dated September 6, 2001, Respondent’s attorney, John H. Westover, Esq., advised Ms. Muller that Respondent would not sign the request to place his medical license on inactive status with cause. Ms. Muller was advised that Respondent did not agree with the claim that he is now or ever has been impaired by the use of alcohol. 41. On October 12, 2001, BOMEX considered the summary suspension of Respondent’s License No. 10125 and following the review of information obtained, pursuant to A.R.S.§§ 32-1451 and 32-1452, and having considered the information in the case, BOMEX issued an Interim Findings of Fact, Conclusions of Law and Order for Summary Suspension of License. 42. In its Interim Findings of Facts, BOMEX found that it had been “presented with sufficient substantial and reliable information concerning Respondent’s professional conduct to conclude that, pending formal administrative hearing, the public health, safety and welfare imperatively requires emergency action by the Board against Respondent’s license to practice medicine in the State of Arizona”.[2] 43. BOMEX’s Interim Conclusions of Law were that the conduct and circumstances described in the Interim Findings of Fact constituted unprofessional conduct by Respondent pursuant to A.R.S. §§ 32- 1401(25)(f), 32-1401(25)(q) and 32-1401(25)(s). 44. BOMEX issued the following Order:

IT IS HEREBY ORDERED THAT: 1. Respondent’s license to practice allopathic medicine in the State of Arizona, License No. 10125, is summarily suspended pending a formal hearing before a hearing officer (sic) from the Office of Administrative Hearings. 2. The Interim Findings of Fact and Conclusions of Law constitute written notice to Respondent of the charges of professional conduct made by the Board against him. Respondent is entitled to a formal hearing to defend these charges within sixty (60) days of the effective date of this order. 3. The Board’s Executive Director is instructed to refer this matter to the Office of Administrative Hearings for scheduling of an administrative hearing to be commenced no later than sixty (60) days from the date of the issuance of this order, unless stipulated and agreed otherwise by Respondent.

45. Respondent is found to have been habitually intemperate in the use of alcohol during the 1980s prior to his entering into the January 1989 stipulation with BOMEX. 46. Respondent is determined to be an alcohol dependent individual. He has been treated for alcohol dependency, he attended Alcoholics Anonymous for years and he appeared for surgery at a hospital with alcohol on his breath which was noticed not only by the patient’s family, but also another physician and hospital worker. Even while Respondent was recently being monitored for alcohol and drug use by BOMEX, he tested positive for alcohol consumption. 47. Since BOMEX’s 1992 Order terminating the 1989 Stipulation and Order, it is determined that Respondent has relapsed with alcohol dependency on several occasions. The most recent recorded relapse was the August 10, 2001 positive drug screen for alcohol. However, Respondent’s relapses in the consumption of alcohol since entering into the 1989 Stipulation and Order are deemed not to have reached the level of habitual intemperance. 48. There is credible evidence that Respondent, as an alcohol dependent individual, must abstain from alcohol consumption. The September 1998 incident where Respondent went to the hospital to perform surgery with alcohol on his breath illustrates that point. 49. It is determined that Respondent was on notice that he could not consume alcohol after BOMEX issued its Interim Order (For Evaluation) dated January 12, 2001 covering Investigation 12297. Investigation 12297 was commenced based upon a complaint from Thunderbird Samaritan Hospital that Respondent had appeared for surgery with alcohol on his breath which had been observed by the patient’s family, another physician and hospital staff worker. The said Interim Order required Respondent to participate in the color of the day urine program to monitor whether or not he consumed alcohol or other drugs. 50. Respondent is found to be impaired by alcohol and who was under a prior BOMEX order that is no longer in effect. 51. The Talbott Recovery Campus report generated by Respondent’s 96-hour assessment in 2001 initially recommended that Respondent re-enter treatment on an outpatient basis for alcohol abuse. That report further recommended that if Respondent were unable to maintain abstinence from alcohol, then he should be treated at a facility that specializes in health care professionals. Under all the circumstances, the later recommendation is found to be an appropriate treatment plan for Respondent. 52. Based upon the Respondent’s positive August 10, 2001 drug screen for alcohol, Dr. Sucher amended his recommendation consistent with that of the Talbott Recovery Campus report due to Respondent’s inability to abstain from alcohol consumption. 53. The evidence of record supports a finding that Respondent needs the additional inpatient treatment and monitoring recommended by Talbott Recovery Campus before being allowed to return to the practice of medicine with reasonable skill and safety. 54. Notwithstanding the above Finding of Fact that Respondent is not habitually intemperate, it is found that on October 12, 2001 BOMEX had been presented with sufficient, substantial and reliable information concerning Respondent’s alcohol dependency and relapses which imperatively required BOMEX’s emergency action of summarily suspending Respondent’s medical license to protect the public health, safety and welfare. Unless and until Respondent receives appropriate inpatient treatment at a facility that specializes in the treatment of health care professionals and re-establishes his proven abstinence from alcohol consumption, his license to practice allopathic medicine in the State of Arizona should remain suspended. … … …

CONCLUSIONS OF LAW

1. BOMEX possesses jurisdiction over the subject matter hereof and over the Respondent. 2. The conduct and circumstances described in the above Findings of Fact do not constitute unprofessional conduct by Respondent pursuant to A.R.S. § 32-1401(25)(f) (Habitual intemperance in the use of alcohol or habitual substance abuse). 3. The conduct and circumstances described above constitute unprofessional conduct by Respondent pursuant to A.R.S. § 32-1401(25)(q) (Any conduct or practice which is or might be harmful or dangerous to the health of the patient or public). 4. The conduct and circumstances described above constitute unprofessional conduct by Respondent pursuant to A.R.S. § 32-1401(25)(s) (Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provisions of this chapter). 5. Respondent, having been found to be impaired by alcohol consumption while alcohol dependent and who was under a BOMEX stipulation that is no longer in effect, failed to comply with the provisions of A.R.S. § 32- 1452(F) which required him to request to BOMEX that his medical license be placed on inactive status with cause. 6. As a result of Respondent’s failure to request that his license be placed on inactive status with cause as provided for in Conclusion of Law No. 5, BOMEX properly summarily suspended Respondent’s medical license pursuant to A.R.S. §§ 32-1452(F) and 32-1451(D). 7. Pursuant to the provisions of A.R.S. § 32-1452(F), Respondent should successfully complete an inpatient hospital treatment program as recommended by the Talbott Recovery Campus prior to any reactivation of his Arizona medical license to assure his ability to return to the practice of medicine with reasonable skill and safety. 8. Pursuant to the provisions of A.R.S. § 32-1451(N), Respondent’s medical license should remain suspended until he complies with A.R.S. § 32- 1452(F) and successfully competes an inpatient hospital treatment program as recommended by the Talbott Recovery Campus. 9. If Respondent successfully complies with the statutory requirements for the lifting of the suspension of his medical license, then his medical license should be placed on probation for a period of five (5) years, subject to terms and conditions similar to his 1989 stipulation and/or as otherwise required by BOMEX. 10. Pursuant to A.R.S. § 32-1451, BOMEX may charge the costs of formal hearings to a licensee found to have violated the provisions of A.R.S. § 32-1401 et seq. In light of Respondent’s failure to comply with A.R.S. § 32-1452(F) by requesting that his license be placed on inactive status with cause, BOMEX should assess the costs of the formal hearing to Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the summary suspension of Respondent’s License No. 10125 for the practice of medicine in the State of Arizona be upheld and affirmed. It is further recommended that Respondent’s medical license continue to be placed on suspension until he has successfully completed, at his sole cost and expense, an inpatient hospital alcohol treatment program at a facility that specializes in the treatment of health care professionals and complies with all statutory requirements for the reinstatement of his suspended license. It is further recommended, in addition to the above disciplinary penalty, that upon reinstatement of Respondent’s medical license that it be placed on probation for a period of five (5) years, subject to the terms and conditions similar to his 1989 Stipulation and Order with BOMEX, which are incorporated herein by reference, and/or as otherwise ordered by BOMEX. It is further recommended, in addition to the above-provided penalties, that Respondent be charged the costs of formal hearings in this matter pursuant to A.R.S. § 32-1451(N). Respondent shall pay those costs to BOMEX no later than one year from the effective date of the entered Order in this matter. Done this day, January 3, 2002

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

Board of Medical Examiners Claudia Foutz, Executive Director ATTN: Amanda Diehl 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________

----------------------- [1] Exhibit 7. [2] Exhibit 26.

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