ALJDEC

01F-12359-MDX · Board of Medical Examiners · 2001-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 29, 2001. APPEARANCES: Dr. David E. Jeal, M.D. appeared on his own behalf. The Board of Medical Examiners (hereinafter BOMEX) was represented by M. Elizabeth Burns, Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________

In this matter, the Arizona Board of Medical Examiners (hereinafter BOMEX) seeks to revoke Petitioner’s medical license. In its petition, BOMEX urged three grounds upon which the revocation action should be taken: (1) an alleged instance of unprofessional conduct in violation of A.R.S. §32-1401(25)(r) (by violating a formal order, probation, consent agreement or stipulation issued or entered into by BOMEX), (2) a second alleged instance of unprofessional conduct (habitual intemperance in the use of alcohol), and (3) an alleged violation of A.R.S. §32-1401(q) (any conduct or practice that is or might be harmful to the health of the patient or public). At the conclusion of the hearing, BOMEX withdrew its allegation of professional misconduct based upon the habitual intemperance in the use of alcohol. Based on the evidence adduced at the hearing in this matter, the following findings of fact, conclusions of law, and recommended decision are made. . . . . . . FINDINGS OF FACT 1. Petitioner, an anesthesiologist, is the holder of License #12359 for the practice of Allopathic Medicine in the State of Arizona. 2. On December 15, 1998, Petitioner voluntarily entered into a “Rehabilitation Stipulation and Order with BOMEX whereby petitioner agreed to enter into BOMEX’s Monitored Aftercare Program. The order came as a result of Petitioner commendably seeking help through BOMEX with his chemical dependence problem with alcohol. 3. As part of the agreement, Petitioner agreed to not consume any alcohol while a part of the program. 4. During March, 2001, Petitioner was working on staff at Boswell Memorial Hospital. On March 2, 2001, Petitioner reported for work at Boswell and began treating patients. At approximately 9:00 a.m., one of the secretaries at the hospital, Melissa Delgado, noticed alcohol on Petitioner’s breath. She reported her observation to the Director of Surgery Services at Boswell, Rita Borden. After receiving this report, Borden advised Mr. Gary Ticker, Vice president of patient services at Boswell, and George Perez, Executive Vice President of Boswell. 5. Mr. Perez and Mr. Tucker met with Petitioner regarding the secretary’s observation. Petitioner agreed to provide a urine sample for testing purposes. At approximately 10:00 a.m., Petitioner provided a urine sample in the presence of Mr. Tucker. The sample was analyzed at approximately 10:45 a.m. The results showed that petitioner had 74.85 milligrams/deciliter of ethanol, an elevated result. 6. After the results of the analysis were obtained, Mr. Perez and Mr. Tucker then again met with Petitioner to discuss the results. At that same time, approximately 11:45 a.m., Petitioner voluntarily agreed that he would not treat anymore patients at Boswell Hospital. In fact, Petitioner had already agreed with Rita Bolton that he would not conduct either of the two pain treatment procedures that remained for him to complete that day. To that end, Petitioner had told Bolton that he would arrange for another doctor to complete one of the procedures and that Petitioner would cancel the other procedure. 7. Despite voluntarily agreeing to stop treating patients, Petitioner nevertheless returned to the Surgery department after leaving Mr. Tucker and Mr. Perez. He then performed a pain blocking treatment on a patient at approximately 1:00 p.m. even though he had earlier agreed not to do so. 8. At the hearing in this matter, Dr. Michael Sucher testified regarding his expertise in the area of addiction medicine and his contact with Petitioner in this case. Dr. Sucher is a licensed physician who currently serves as a medical consultant for BOMEX in the area of addiction medicine. Dr. Sucher’s training, education, and experience as related through his testimony at the hearing qualify him to testify as an expert in the area of addiction medicine. When Petitioner entered into the Medical Aftercare Program, Dr. Sucher was assigned to him to be his monitoring physician. On the day of the incident, Dr. Sucher spoke to Petitioner and Petitioner indicated that he had consumed a full bottle of wine on the evening before the incident. Dr. Sucher testified that the amount of alcohol present in the analysis was a significant amount of alcohol. Dr. Sucher also testified that the fact of consuming alcohol while under a monitoring agreement, combined with Petitioner’s acknowledged chemical dependence on alcohol as well as the fact that Petitioner had consumed such a large amount of alcohol on the evening before the March 2, 2001 incident was or could be indicative of a relapse. Finally, Dr. Sucher stated, and the undersigned so finds, that physicians who relapse into chemical abuse involving alcohol pose a danger when treating patients. 9. At the hearing, Petitioner also testified. He stated that he had only had one glass of wine the night before the March 2, 2001 incident at Boswell. This was in direct contradiction to his earlier statement to Dr. Sucher that he had consumed a bottle of wine. In addition, as Dr. Sucher testified, Petitioner’s urine analysis result on March 2, 2001 belies such a statement. Petitioner’s contention that he consumed only one glass of wine is not credible. Of greater concern is the fact that Petitioner adhered to this position in light of the clear contrary evidence. Petitioner is found not to have testified credibly at the hearing. CONCLUSIONS OF LAW 1. In this matter, BOMEX carries the burden to prove by a preponderance of the evidence that the allegations contained in the complaint are true. 2. BOMEX has carried that burden in this matter. The credible testimony in this matter, as demonstrated in the Findings of Fact above, shows that on the evening preceding March 2, 2001, Petitioner consumed a bottle of wine in direct contravention of the stipulation agreement he had entered into in 1998. 3. Furthermore, based on the fact of the incident of drinking despite the requirements of the stipulation agreement, and the testimony of Dr. Sucher, the undersigned finds that Petitioner is or may be relapsing into his chemical dependency upon alcohol. Petitioner’s chemical dependency constitutes conduct which may be harmful or dangerous to the public. 4. Given Dr. Sucher’s testimony, as well as Petitioner’s refusal to acknowledge any problem as demonstrated by his course of testimony at this hearing, it appears imperative that Petitioner’s medical license be revoked in order to protect patients and the public. RECOMMENDED DECISION Based on the foregoing, it is recommended that the Board of Medical Directors revoke Petitioner’s License Number 12359. Done this day, June 12, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of June, 2001, to:

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

By ___________________________

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