ALJDEC

01F-12761-MDX · Board of Medical Examiners · 2002-02-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2002 APPEARANCES: Respondent : Leon Driss, M.D., appeared pro se. State Board of Medical Examiners : Stephen A. Wolf, Assistant Attorney General, represented the Board. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

This is a proceeding commenced by the Arizona State Board of Medical Examiners (the “Board”), as authorized by Arizona Revised Statutes (“A.R.S.”) Title 32, Chapter 13, Article 1 and Title 41, Chapter 6, Article 10, to receive evidence concerning the Board’s intent to exercise discipline against the license of Leon Driss, M.D., (also “the doctor”) in the practice of allopathic medicine within the State of Arizona. The doctor has been subjected to disciplinary measures taken against his California and Washington State medical licenses. The Board seeks to impose sanction upon the doctor’s Arizona license resultant from the actions undertaken by those two jurisdictions. Having heard the testimony of the witnesses and having read and considered the entire record,[1] Administrative Law Judge (“ALJ”) Gary B. Strickland submits this Recommended Decision and Order to the Executive Director of the Board.

FINDINGS OF FACT 1. The Arizona State Board of Medical Examiners has been delegated by the legislature the regulatory oversight and control of the practice of allopathic medicine in the State of Arizona.[2] 2. Leon Driss holds license No. 12761 issued by the Board on or about July 1, 1981, renewed December 14, 2000, due to expire on September 1, 2002. 3. The doctor also holds medical licenses issued by the State of California (Lic. No. G47566, issued on or about June 14, 1982) and the State of Washington (Lic. No. 31347, issued on or about September 29, 1993). 4. Dr. Driss, a graduate of the Medical College of Wisconsin in May 1980, has been practicing continuously since obtaining his license in the State of Arizona, although for much of the time residing and practicing out-of-state. The doctor performed his internship responsibilities at Maricopa Medical Center in Phoenix from June 1980 through June 1981. 5. Respondent holds board certifications in Geriatric Medicine as well as in Internal Medicine. 6. The present matter does not arise out of an Arizona consumer generated complaint. The complaint has been initiated by the Arizona State Board of Medical Examiners, sua sponte, as a result of action undertaken by the appropriate medical boards against the medical licenses held by the doctor in two other jurisdictions, California and Washington, respectively. 7. On or about March 14, 1997,[3] the Medical Board of California (the “California Board”) found, after an evidentiary hearing, that Respondent Driss had been grossly and repeatedly negligent in his care and treatment of patient E.S.[4] 8. Specifically, the California Board found: 1) that Dr. Driss had violated section 2234(b) of the California Business and Professions Code, as alleged;[5] (2) that Dr. Driss had violated section 2234(c) of the California Business and Professions Code, as alleged; and (3) that Dr. Driss had not violated section 2234(d) of the California Business and Professions Code, as alleged. 9. As a result, the California Board revoked the doctor’s California license. However, the revocation Order was stayed by the Board pending the doctor’s completion of a two year probationary period during which time the doctor was required to satisfy certain conditions: (a) that the doctor refrain from violation of any law governing the practice of medicine; b) that the doctor submit quarterly declarations attesting to his compliance with the terms of probation; c) that the doctor comply with the Division’s surveillance program; d) that the doctor make himself available for interview by the Division’s medical consultant upon request so to do; e) that the probationary period be tolled during any period wherein the doctor would be found practicing outside the State of California; f) that the doctor satisfy a CME course in medical Ethics within the first year of the probation, with prior approval of the contents thereof by the Board; g) that the doctor would be susceptible to an implementation of the revocation Order should the doctor be found to violate the terms of the probation; and h) that the doctor pay to the Board $3,626. in costs. 10. Thereafter, Dr. Driss appealed, on a writ of mandate, the California Board’s decision to place his license on probation, to the Court of Appeal, Third Appellate District, the Superior Court having denied his petition for a writ of mandamus. Dr. Driss complained therein that the California Medical Board’s decision (1) violated his due process rights and (2) was not, on any account, supported by substantial evidence. The Court of Appeal, Third Appellate District, rejected both grounds put forward by the doctor in his petition for a writ of mandate. The Court denied the petition on October 5, 2001 (filed October 25, 1999).[6] 11. In the interim, that is between the time that the doctor had treated the patient who was the subject of the complaint (initiated by the Executive Director of the Medical Board of California) and the final Order in the matter issued by the Court of Appeals, Dr. Driss had moved to the State of Washington (in 1994), obtained medical licensure in the jurisdiction, and assumed a medical practice. 12. Subsequently, having learned of the action undertaken by the Medical Board of California, the Medical Quality Assurance Commission of the State of Washington served upon Dr. Driss a Statement of Charges and Notice of its intent to discipline the doctor’s Washington license under the state’s Uniform Disciplinary Act.[7] 13. The doctor chose to enter into an “Agreed Order” with the Washington Medical Quality Assurance Commission on July 13, 1999, wherein and whereby the doctor and the Commission agreed to abide by the anticipated ruling of the California Court of Appeals in the Medical Board of California matter. Should the Court of Appeals uphold the Medical Board of California’s imposition of discipline (as it has), Washington would (1) recognize that the doctor’s license was suspended by the California Board for a period of two years, a “suspension” then stayed, (2) recognize that the doctor had satisfied all outstanding additional continuing medical education (“CME”) requirements, and (3) terminate the “Agreed Order” upon proof that the doctor had paid the Medical Board of California its awarded costs. 14. Having substantially complied with the conditions of the “Agreed Order,” the doctor’s Petition to be released from the provisions and effect of the Order was granted by the Washington Medical Quality Assurance Commission by Order issued on July 14, 2000.[8] 15. Dr. Driss has moved back to the State of Arizona (September 2000) where he currently practices. The doctor is engaged in the practice of internal medicine in and around Lakeside, Arizona. 16. Because of his move to the state of Washington, the doctor put himself into a “catch 22”[9] whereby he was constrained not to move back to California for purposes of serving his probationary obligation, having been caring for patients for a period of three years in Washington awaiting the legal process to run in California. 17. Therefore, the doctor has not served a period of probation as a consequence of the Medical Board of California’s March 14, 1997 Decision and Order.[10] 18. The Arizona Board of Medical Examiners issued a COMPLAINT AND NOTICE OF HEARING on November 5, 2001, in accordance with applicable law, wherein is alleged that the action undertaken by the Medical Board of California noted herein constituted a finding of unprofessional conduct, as such conduct is contemplated by the Arizona statute governing the conduct of practitioners of allopathic medicine in this state. The COMPLAINT further gave Dr. Driss notice that the action undertaken by the Washington Medical Quality Assurance Commission, noted herein, likewise constituted a finding of unprofessional conduct, as such conduct is contemplated by the Arizona statute governing the conduct of practitioners of allopathic medicine in this jurisdiction. 19. The Arizona Board of Medical Examiners seeks to (1) censure Dr. Driss because his acts and omissions in the underlying California negligence case have been found by a California Administrative Law Judge (upheld by the California Court of Appeals) to constitute gross and repeated negligence;[11] and, (2) impose a two-year probationary course with periodic review. 20. Dr. Driss desires to be relieved of any disciplinary penalty because (1) he has been extremely saddened by the death of his former patient, the subject of the underlying California inquiry; (2) the event in question occurred 13 years ago, during which time his practice endeavors have been closely monitored and positively appraised; (3) the Administrative Law Judge in the California matter misconstrued the evidence and improperly apportioned weight to the evidence submitted by the parties; (4) to discipline his license would be counterproductive to the explicit intent of the governing statute, that the Board safeguard the residents of Arizona, as the doctor is serving in a rural area of the state desperate for the services of one credentialed and competent in internal medicine, as is the doctor; (5) he has endeavored to keep apace CME requirements, and has exceeded those requirements, both as to substantive practice developments and ethical considerations; and (6) he has cooperated throughout the inquiry, manifesting his acknowledgment of and deep respect for the responsibilities that have been imposed upon this Board by law. 21. The weight and sufficiency of the evidence preponderates (1) that Dr. Driss, Respondent herein, acted in a manner grossly and repeatedly negligent some ten to 13 years ago in his treatment of a patient while lawfully practicing in the state of California; (2) that the doctor has been disciplined therefor by the Medical Board of California; (3) that as a term of the California Board’s decision to revoke the doctor’s certificate in California, the revocation was stayed and Respondent was placed on probation for a period of two years; (3) that the course of probation would be tolled during a period when Respondent doctor was practicing or residing out of California; and (4) that Dr. Driss has not subjected himself to the probationary period imposed by the Medical Board of California.

REASONING AND CONCLUSIONS OF LAW 1. The Board has been delegated authority by the legislature to discipline a license that it has issued for the practice of allopathic medicine in this state.[12] 2. The range of penalty and the procedure for investigation, with process available to the physician, is set out in statute.[13] 3. Specifically, the Board is authorized to discipline a doctor for acts and omissions constituting unprofessional conduct.[14] Within the statutory delineation of bases for discipline is included physician conduct that the Board determines is gross negligence, repeated negligence, and/or negligence that results in the death of a patient.[15] 4. The legislature has further empowered the Board to impose discipline reciprocally upon an action taken against an Arizona licensed physician by another jurisdiction whereby and wherein the physician is also licensed.[16] 5. The enabling statute further prescribes the nature of the penalty that may be assessed when proscribed conduct is identified.[17] 6. The issue presented concerns whether Respondent has violated the standards established by the legislature whereby conduct is circumscribed as either professionally acceptable or professionally unacceptable. Has the Board persuaded that Dr. Driss has committed an act or omission that warrants sanction? If so, what should be the nature and extent of the penalty? 7. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[18] Further, the standard of proof is that of the “preponderance of the evidence”.[19] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.”[20] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion is more probably correct on the issue(s) in dispute. 8. In this proceeding, the Board of Medical Examiners bears the burden of establishing that Dr. Driss has committed an act or omission making him susceptible to Board discipline. 9. The underlying presumed purpose of a Board of Medical Examiners oversight commission is to protect the public interest.[21] 10. The Arizona state legislature has directed that statutes be liberally construed in an effort to effect their objects and promote justice.[22] Technical words and phrases are to be construed according to their peculiar and appropriate meaning.[23] 11. The Rules that have been adopted by the Board in an effort to implement the Board’s statutorily delegated responsibilities and authority have the force and effect of law.[24] 12. The imposition of discipline upon the license that Dr. Driss holds in the State of California, by the Agency empowered by the California legislature to impose such discipline, constitutes an act of unprofessional conduct under the Arizona regulating statute.[25] 13. Further, the Medical Board of California’s determination, upheld by a California Court of Appeal, that the doctor’s acts and omissions in his treatment and care of a patient whose care was scrutinized by the Board constituted repeated and gross negligence, may be used by the Board of Medical Examiners to estop[26] the doctor from a denial of the findings and conclusions of the California Board in its Decision and Order of March 14, 1997.[27] 14. The State has proved by a preponderance of the evidence that Respondent has engaged in acts and/or omissions constituting unprofessional conduct as envisaged by and as defined in the governing statute. The conduct and circumstances described in the Findings of Facts set out above constitute unprofessional conduct under A.R.S. § 32- 1401(25)(o). The Medical Board of California has revoked Respondent’s license to practice medicine in the State of California on the basis of certain findings of unprofessional conduct. Those findings of unprofessional conduct correspond directly or indirectly to the following acts of unprofessional conduct proscribed by Arizona law:

A.R.S. § 32-1401(25)(ll) (conduct that the Board determines is gross negligence, repeated negligence or negligence resulting in harm to or the death of a patient).

Albeit the doctor’s license to practice in California has been restored, the doctor has yet to have fulfilled the probationary order imposed against his license by the California Board, imposition of the penalty having been tolled during his absence from the jurisdiction.[28] 15. A careful review of the totality and preponderance of the evidence presented at the hearing of this complaint supports the Board’s imposition of discipline against the license of Dr. Driss, Respondent herein, in the form of (1) a censure, and (2) a two year probation. 16. In mitigation is noted the following considerations: (1) the doctor’s lack of previous disciplinary sanction in Arizona; (2) the doctor’s manifest desire for rehabilitation and his potential for continued improvement; and (3) the period of time that has elapsed since the occurrence in question and current efforts by the Board to sanction the doctor’s Arizona license. 17. In aggravation is noted the following factors: (1) the underlying conduct has been found, both through the administrative process in California as well as reviewing courts of general jurisdiction in that state, to have constituted gross misconduct; (2) in his treatment and care of patient E.S., the doctor has been demonstrated to have acted with reckless indifference to the welfare of the patient;[29] and, (3) the doctor has not completely fulfilled the disciplinary obligation imposed upon him by the Medical Board of California. 18. “An administrative penalty is excessive only if it is so ‘disproportionate to the offense as to shock one’s sense of fairness’.”[30] Placing Dr. Driss on a two year Probation and issuing to the physician a letter of Censure wherein is delineated the findings set forth herein is neither an excessive sanction nor does it shock one’s sense of fairness. Such exercise of discipline is required by a recognition of the obligations that have been imposed upon the Board by statute to protect and inform the public, as well as the oversight responsibilities that the Board has concerning those within its care.

RECOMMENDED ORDER IT IS RECOMMENDED that the Board of Medical Examiners (1) place Dr. Driss on probation for a period of two years with periodic medical review, and (2) issue a Decree of Censure reciting the findings contained herein.

Set forth this day, 4th day of March 2002. OFFICE OF ADMINISTRATIVE HEARINGS

________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] The parties stipulated that the official record consists of that record having been memorialized and certified by the court reporter, the testimony and argument set forth by the parties, respectively, along with the exhibits that were offered at the hearing and documentation in the Board’s case file. Dr. Driss offered 13 exhibits, identified by letter; all of the exhibits were received, save for that denoted exhibit A, which was rejected on relevancy grounds. The doctor’s exhibits accepted into the record are identified B through N. The Board’s exhibits 1 through 8 were each received and are a part of this record. [2] A.R.S. ( 32-1403. [3] Hearing Exhibit 2. The California Board adopted therein a “Proposed Decision” that had been issued by a California Office of Administrative Hearings Administrative Law Judge on February 27, 2002. A copy of the “Proposed Decision” is found within the hearing file (also offered by the parties as Exhibits 2 and B), the contents of which have been noticed by the Administrative Law Judge herein without objection having been interposed. [4] The patient’s initials only are identified for purposes of confidentiality. [5] The California statute reads as follows, in part:

Bus. & Prof. Code § 2234. Unprofessional conduct

The Division of Medical Quality shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following:

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(b) Gross negligence.

(d) Incompetence.

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[6] An unpublished decision identified herein as Hearing Exhibit 5. [7] Hearing Exhibit 3, issued on December 5, 1997, citing Rev. Code Wash. 18.130.180. The Washington statute identifies those acts and/or omissions that constitute unprofessional conduct. The relevant portions of the pericope are set forth below for purposes of convenience:

§ 18.130.180. Unprofessional conduct

The following conduct, acts, or conditions constitute unprofessional conduct for any license holder or applicant under the jurisdiction of this chapter:

*** (4) Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed;

(5) Suspension, revocation, or restriction of the individual's license to practice any health care profession by competent authority in any state, federal, or foreign jurisdiction, a certified copy of the order, stipulation, or agreement being conclusive evidence of the revocation, suspension, or restriction; ***

(7) Violation of any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice;

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[8] Hearing Exhibit M. [9] The doctor’s observation. See, Hearing Transcript, page 49, line 16. [10] Hearing Transcript, page 49, lines 17-19 (“I wasn’t about to give up my practice and move back to California and serve their two years.”). [11] See, Hearing Exhibits 2 and 5. The California Administrative Law Judge found, after an evidentiary hearing whereat the doctor was represented by counsel, that the doctor’s failure to order a Prostate Specific Antigen (P.S.A.) test and/or refer the patient to a urologist in 1989 failed the standard of care. The patient had presented with a “hard” prostate in September 1989 and was seen in the office by the doctor on 13 occasions thereafter (through July 1991). The doctor failed to perform a prostate examination or make a referral at any time. By not repeating a digital rectal examination at least once within a twelve month period, the doctor’s treatment fell far below the standard of care. By failing to take appropriate diagnostic steps when presented with identifiable symptomatology, the doctor’s treatment of the patient was grossly negligent. By failing to perform a repeat digital exam in 1990 after having observed that the patient’s prostate was not normal, the doctor repeated his act and omission. The patient was, in due course, diagnosed with stage D diffusely metastatic prostate cancer in July 1991, to which disease the patient succumbed in March 1992 having undergone aggressive treatment therefor. [12] A.R.S. § 32-1403(A) provides, in part:

Powers and duties of the board;

A. The primary duty of the board is to protect the public from unlawful, incompetent, unqualified, impaired or unprofessional practitioners of allopathic medicine through licensure, regulation and rehabilitation of the profession in this state. The powers and duties of the board includel:

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5. Disciplining and rehabilitating physicians. 6. Engaging in a full exchange of information with licensing and disciplinary boards and medical associations or other states and jurisdictions of the United States . . . and the Arizona medical association and its components. ***

[13] A.R.S. ( 1451. The statute provides, in part:

A. The board on its own motion may investigate any evidence that appears to show that a doctor of medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. On written request of a complainant the board shall review a complaint that has been administratively closed by the executive director and take any action it deems appropriate. Any person may, and a doctor of medicine, the Arizona medical association, a component county society of that association and any health care institution shall, report to the board any information that appears to show that a doctor of medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. The board or the executive director shall notify the doctor as to the content of the complaint as soon as reasonable. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. If requested, the board shall not disclose the name of a person who supplies information regarding a licensee's drug or alcohol impairment. It is an act of unprofessional conduct for any doctor of medicine to fail to report as required by this section. The board shall report any health care institution that fails to report as required by this section to that institution's licensing agency.

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E. If, after completing its investigation, the board finds that the information provided pursuant to Subsection A of this section is not of sufficient seriousness to merit disciplinary action against the license of the doctor, the board or a board committee may take either of the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after receiving the advisory letter.

F. If the board finds that it can take rehabilitative or disciplinary action without the presence of the doctor at a formal interview it may enter into a consent agreement with the doctor to limit or restrict the doctor's practice or to rehabilitate the doctor, protect the public and ensure the doctor's ability to safely engage in the practice of medicine. The board may also require the doctor to successfully complete a board approved rehabilitative, retraining or assessment program.

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H. If after completing its investigation the board believes that the information is or may be true, it may request a formal interview with the doctor. If the doctor refuses the invitation for formal interview or accepts and the results indicate that grounds may exist for revocation or suspension of the doctor's license for more than twelve months, the board shall issue a formal complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. If after completing a formal interview the board finds that the protection of the public requires emergency action, it may order a summary suspension of the license pending formal revocation proceedings or other action authorized by this section.

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K. If the board finds that the information provided in Subsection A or I of this section warrants suspension or revocation of a license issued under this chapter, it shall initiate formal proceedings pursuant to Title 41, Chapter 6, Article 10.

L. In a formal interview pursuant to Subsection H of this section or in a hearing pursuant to Subsection K of this section, the board in addition to any other action may impose a civil penalty in the amount of not less than one thousand dollars nor more than ten thousand dollars for each violation of this chapter or a rule adopted under this chapter.

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N. Any doctor of medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.

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V. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee. (Emphasis added).

[14] A.R.S. § 32-1401(25) identifies those acts and omissions that constitute unprofessional conduct.

25. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

(a) Violating any federal or state laws or rules and regulations applicable to the practice of medicine.

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(o) Action that is taken against a doctor of medicine by another licensing or regulatory jurisdiction due to that doctor's mental or physical inability to engage safely in the practice of medicine, the doctor's medical incompetence or for unprofessional conduct as defined by that jurisdiction and that corresponds directly or indirectly to an act of unprofessional conduct prescribed by this paragraph. The action taken may include refusing, denying, revoking or suspending a license by that jurisdiction or a surrendering of a license to that jurisdiction, otherwise limiting, restricting or monitoring a licensee by that jurisdiction or placing a licensee on probation by that jurisdiction.

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(ll) Conduct that the board determines is gross negligence, repeated negligence or negligence resulting in harm to or the death of a patient.

(Emphasis added). ***

[15] A.R.S. ( 32-1401(25)(ll). [16] A.R.S. ( 32-1401(25)(o). [17] See, A.R.S. ( 32-1401 cited supra. [18] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [19] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [20] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.) [21] See A.R.S. (( 32-1403(A). [22] A.R.S. ( 1-211(B); [23] A.R.S. ( 1-213. [24] Red Carpet-Barry & Associates v. Apex Associates, 130 Ariz. 302, 304, 635 P.2d 1224, 1226 (App. 1981). See also, NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION ( 65.5 ( 6th ed., vol. 3, 2001 Revision). [25] A.R.S. ( 32-1401(25)(o). [26] See, the Administrative Law Judge’s ruling on the Board’s Motion in Limine, filed on November 7, 2001, issued on November 19, 2001, wherein was determined, inter alia:

The State’s Motion in Limine is granted. Dr. Driss is foreclosed from raising matters previously decided by the Medical Board of California in its February 27, 1997 Decision.[27] The Dr. may, however, point to facts found in the California Board’s Decision to support an argument in mitigation. See also, Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 174, 745 P.2d 617, 622 (Ariz. Ct. App. 1987) (collateral estoppel, or issue preclusion, “bars a party from relitigating an issue identical to one he had previously litigated to a determination on the merits in another action.”); Hawkins v. Arizona Dep’t of Economic Security, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (Ariz. Ct App. 1995) (applying the use of collateral estoppel to administrative agencies when those agencies are found acting in a quasi-judicial capacity). On the offensive use of the doctrine of estoppel, see, Wetzel v. Arizona State Real Estate Dep’t, 151 Ariz. 330, 333, 334, 727 P.2d 825, 828, 829 (Ariz. Ct. App. 1986). [28] Hearing Exhibit 2. [29] See, Findings of Fact (( 9(e) and 11 above. [30] See, Caldwell v. Arizona State Board of Dental Examiners, 137 Ariz. 396, 670 P.2d 1220 (Ariz. App. 1983)(equating “gross negligence” with “wanton negligence”). [31] Culpepper, supra, 187 Ariz. at 438, 930 P.2d at 515, citing Schillerstrom v. State, 180 Ariz. 468, 471, 885 P.2d 156, 159 (App. 1994) (professional board sanction (revocation) of chiropractor’s license not found to be so disproportionate to the offense as to shock one’s conscience); See also, Bear v. Nicholls, 142 Ariz. 560, 563, 691 P.2d 326, 329 (App. 1984) .

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