ALJDEC decisions subject to certification as final

05A-04L231-MDX · Arizona Medical Board · 2005-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2005, the record remained open until May 31, 2005 (extended to June 5, 2005) APPEARANCES: Dr. Ibrahim Lotfy, Applicant, appeared by telephone in his own behalf. Stephen A. Wolf, Assistant Attorney General, for the Arizona Medical Board ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Preliminary Matters This matter came on for hearing on May 6, 2005 at which time the evidentiary record closed. The record of the hearing remained open to allow the parties to submit closing memoranda. The time of closing of the record was extended to June 5, 2005, after the Applicant submitted additional written communications to the tribunal. Findings of Fact 1. On December 1, 2003, the Applicant, Dr. Ibrahim Lotfy, submitted his application for a License to Practice Allopathic Medicine, to the Arizona Medical Board (Arizona Board or Board). 2. Dr. Lotfy graduated from the Cairo School of Medicine[1] in 1992 and completed Fifth Pathway training through New York Medical College. He completed his anesthesiology internship June 30, 1998, and “successfully completed two years (24 months) of anesthesiology for which he received credit”, [2] at Baystate Medical Center. 3. From Baystate, Dr. Lotfy went to Strong Memorial Hospital (Rochester Medical Center). He began that anesthesiology residency program September 1, 1999, but was terminated from the resident training appointment effective December 31, 2000 because despite a probationary period and explicit recommendations, Dr. Lotfy “…failed to improve performance in areas of clinical judgment, medical documentation and interpersonal communication”[3]. He was given four months ABA credit for training in the program (September 1999 to December 1999). 4. After his termination from Rochester Medical Center, Dr,. Lotfy transferred to Medical College of Ohio where he was in the anesthesiology residency program from January 1, 2001 to June 30, 2002 (a leave of absence/suspension started on May 17, 2002 for reasons set forth in the following paragraphs). Dr. Lotfy did not complete the full approved 36 month term of the anesthesia residency program. State’s Exhibit pages 24 and 25 disclose Dr. Lotfy was placed on probation (“yes” marked on page 24, but was suspended according to the attachment on page 25). The attachment states Dr. Lotfy was suspended pending investigation of inappropriate control of anesthetic agents. State’s Exhibit page 24 also stated there was a reason not to continue Dr. Lotfy in the training program. Nevertheless, Dr. Lotfy’s evaluations in every category were rated satisfactory or above. Dr. Lotfy did not complete the Medical College of Ohio program but did receive 14 months of credit while in training. 5. On June 27, 2002 Dr. Lotfy was indicted for five counts of Deception to Obtain Dangerous Drugs (5th degree felonies), in violation of Ohio statutes. The charges related to Dr. Lotfy’s position at Medical College of Ohio and the allegation he improperly obtained the drug Ketamine. He was arraigned on July 9, 2002. A trial date was set for January 14, 2003, but the case was continued and Dr. Lotfy was referred to the Court Diagnostic and Treatment Center for a psychiatric evaluation. A (diagnostic)report was submitted to the court on February 5, 2003, and on March 6, 2003, a hearing was held on Dr. Lotfy’s Motion for Intervention in Lieu of Conviction. Dr. Lotfy entered a plea of guilty to the five felony charges. Further criminal proceedings were stayed. Dr. Lotfy was referred to the probation department for a three year term, and was to participate in a drug and alcohol treatment program as directed by the probation department. The minimum term of probation supervision and program participation is one year. The On July 1, 2004, the court entered an Order of nolle prosequi (no further prosecution of the case), the charges were dropped and Dr. Lotfy was discharged.[4] 6. Question 6 of the Arizona Board application asks in pertinent part if any disciplinary actions, restrictions, limitations were taken against the applicant while the applicant was participating in any type of training program. The Applicant answered “yes” and admitted to academic probation while at Baystate Medical Center and non renewal of his contract at the University of Rochester for “failure to progress academically”. In submitting a more detailed explanation for his answer to question 6 of the application, Dr. Lofty wrote that he had been on “academic probation” during the Baystate anesthesiology training.[5] 7. Question 9 of the Arizona Board application asks if the applicant is currently under investigation by any medical board or peer review body. Dr. Lotfy left the answer to question 9 blank. [6] 8. Question 17 of the Arizona Board application asks if the applicant has ever been found guilty or entered into a plea of no contest to a felony or misdemeanor involving moral turpitude in any state? He answered “no” to question 17. 9. After question 17 is a “Note:” which states in relevant part that in the event any of the questions 5 through 18 were answered “yes”, the Applicant is to file a “detailed report” including any charge, the date, the complete name and address of the jurisdiction, the result of the hearings, and disposition of the charge(s). 10. According to a response[7] from Medical College of Ohio to an Arizona Board inquiry, Dr. Lotfy was suspended from the Medical College of Ohio because Dr. Lotfy withdrew Ketamine[8] under the names of persons who did not receive the medication and were not intended to receive it, and vials of Ketamine were found in Dr. Lotfy’s locker. There is some confusion on the issue of Dr. Lotfy’s suspension by the Ohio Medical College. Exhibit 176 (a letter from an attorney consulted by Dr. Lotfy) indicates Dr. Lotfy did not renew his training certificate. According to Dr. Lotfy, his status was not made clear by Ohio Medical College in that although the college did not renew his contract, it later treated his situation as a suspension. Dr. Lotfy generally testified this contributed to his confusion and inability to submit detailed information regarding his status with Ohio Medical College, to the Arizona Board as part of his application.[9] 11. By letter received December 29, 2003[10], Dr. Lotfy responded to an Arizona Board investigator’s request to provide additional information regarding answers to questions on the application. The response from Dr. Lotfy did not address a suspension from Ohio Medical College or a plea of guilty to five felony counts of Deception to Obtain Dangerous Drugs (the pleas had been enetered in March, 2003) . 12. On January 5, 2004, Arizona Board Investigator Diane Jones sent Dr. Lotfy an e-mail[11] request to provide an explanation of the suspension from the Medical College of Ohio for inappropriate control of anesthetic agents. Dr. Lotfy did not respond to that request. 13. By April 2004, Lisa Bunning (Burning) had taken the investigation over from Diane Jones. On April 4, 2004, Bruning e-mailed and also requested Dr. Lotfy to provide the explanation for the suspension from the Medical College of Ohio. On April 7, 2004, Dr. Lotfy responded and asked Bruning to wait because he had a (due process) hearing on whether he should be readmitted to the medical college residency program, scheduled for April 20, 2004. At that hearing he requested an extension to May 11, 2004, which was granted. The hearing was held but Dr. Lotfy resigned from the Medical College of Ohio on or about May 11, 2004, before a formal decision was made by the committee. 14. By letter dated July 2, 2004[12], Dr. Lotfy responded to Bruning stating he had been through a hearing and the “whole issue was minor clerical error” (the fact is no decision had in fact been made because Dr. Lotfy resigned making a decision unnecessary). 15. He went on to state that the case involved withdrawing anesthetic agents for patients five times over two years. Again Dr. Lotfy states ”This was a small trivial matter that was blown out of proportion for reasons best known to themselves”.[13] It is noted this letter is dated one day after the dismissal of the five felony counts for Deception to Obtain Dangerous Drugs. 16. By e-mail from Dr. Lotfy to Bruning dated October 15, 2004, the applicant restated that the Ketamine issue was due to a “small clerical error”. 17. A letter to Bruning from the associate dean of the Ohio Medical College, dated October 4, 2004, disclosed that Dr. Lotfy had pleaded guilty to five felony counts as a consequence of the Ketamine issue. In view of this, Ohio Medical College was no longer pursuing its investigation. 18. On January, 2004, the Arizona Board licensing manager submitted a cover memo to the Board members summarizing the findings regarding Dr. Lotfy for consideration of his application by the Board on February 9, 2005. Bruning presented her investigative summary to the Board at that time. Dr. Lotfy was not present. The Board voted 10 to 1, with one member absent, to deny the license. 19. Dr. Lotfy testified that he did not provide details of the Medical College of Ohio matters in response to question six, because he was uncertain of his status due to varying positions taken by the medical college. He testified the answer to question 9 of the application was left blank by mistake, and that in response to question 17, he answered the way he did because he had never been found guilty, and had not entered a plea of no contest. He testified he consulted three attorneys who advised him the answer to question 17 was “no”[14]. Conclusions of Law: Applicable Statutes The Notice of hearing provides that the issues to be determined by the hearing are: “(a) Whether you meet the basic requirements for licensure. A.R.S. §32-1422(A). (b) Whether you have a professional record which indicates that you have not committed acts or engaged in conduct which would constitute grounds for disciplinary action against a licensee. A.R.S. §32-1422(A)(4). If you have engaged in such conduct, whether that conduct has been corrected, monitored and resolved. If that conduct has not been corrected, monitored and resolved, whether there are mitigating circumstances that prevent its resolution” A.R.S.§32-1422(C). A.R.S. §32-1422(A)(4) provides that an applicant for a license to practice medicine in Arizona, must have a professional record which indicates that the applicant has not committed any act or engaged in any conduct which would constitute grounds for disciplinary action against a licensee under this chapter. Subsection (C) of the statute provides that in determining if the requirements of (A)(4) above, have been met, if the Board finds an applicant has committed an act or engaged in conduct which would be grounds for disciplinary action, the Board shall then determine to its satisfaction that the conduct has been corrected, monitored and resolved. If the matter has not been resolved, the Board shall determine that mitigating circumstances exist which prevent resolution. A.R.S.§32-1401(27) cites the following as “unprofessional conduct”, whether occurring in Arizona or elsewhere: (a) Violating any federal or state laws, rules or regulations applicable to the practice of medicine, (d)Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by any court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission. (q) Any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public. (jj) Knowingly making a false or misleading statement to the Board or on a form required by the Board or a written correspondence, including attachments with the Board. A.R.S.§32-1455(A)(2) provides that securing a license to practice medicine by fraud or deceit is a class 5 felony. A.R.S.§13-1001(A)(2) defines attempt in pertinent part. A person commits attempt when such person “Intentionally does or omits to do anything which , under the circumstances as such person believes them to be, is any step in a course of conduct planned to culminate in commission of an offense”. Under A.R.S.§13-1001(C)(5), Attempt is a Class 6 felony if the offense attempted is a Class 5 felony. Under A.R.S.§41-1097.07(G) the burden of persuasion in a license or permit application denial case is on the applicant. The Board’s counsel stated that Dr. Lotfy’s medical educational course work is a matter of concern to the Arizona Board but it is not a basis for the denial in this case. Discussion Relative to the Conclusions of Law 1. The applicant has the burden of persuasion to show by a preponderance of the competent evidence that the decision of the Board is factually or legally in error. A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). It is “evidence which is of greater weight or more convincing than the 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.” Black’s Law Dictionary, 1182 (6th ed. 1990). 2. Dr. Lotfy spent a great deal of time and energy defending against the possible conclusion that he was a drug (Ketamine) abuser and had taken the Ketamine for his personal or some other improper use. His defense to the evidence that he had illegally and improperly obtained the Ketamine was that it was a clerical error (the specific reasons for the five errors were never presented)[15]. His explanation for the empty vials in his locker is also tenuous[16]. Although the potential for Dr. Lotfy’s abuse of Ketamine would be of concern to the Arizona Board, it does not fully address the more telling issues presented by this case. 3. Those other issues concern Dr. Lotfy’s lack of disclosure of the complete details of the facts and circumstances regarding matters which are necessary and directly relevant to the Board to allow it to make an informed decision on Dr Lotfy’s application. The evidence is clear that Dr. Lotfy was going to fairly extraordinary lengths to avoid fully disclosing the circumstances of his suspension/peer review at Ohio Medical College, his plea to five felony counts, the subsequent year of court ordered probation including drug testing, and his final resignation from the Ohio Medical College. Dr. Lotfy attempted to characterize the reality of this multi year legal odyssey as a “small clerical error”. This is not the result of any misunderstanding of the English language or lack of certainty about the status of events. This is a clear attempt to not disclose all the facts (specifically those that would reflect negatively on the applicant). The dismissal of the felony counts was followed within a day by Dr. Lotfy’s July 2, 2004, letter addressed to the Board Investigator Diane Jones (Exhibit 56)[17] . He was silent for six months prior to that letter[18] until the criminal charges were dismissed. It is also instructive that rather than simply giving the facts regarding his status at the time of the application and thereafter, Dr. Lotfy sought legal counsel in what appears to be an attempt to legally avoid disclosing certain unfavorable facts[19]. Added to this lack of disclosure is his failure to answer question 9 which asked if he was currently under investigation by a medical board or peer review body. He would have had to answer in the affirmative and he would have had to give a detailed explanation including the criminal charges and guilty plea. Dr. Lotfy acknowledges (possibly without intending to) his intent not to disclose this information.[20] The non disclosure is not an oversight or mistake. In short, the applicant was not and cannot be relied upon to be forthright and completely honest in matters relating to his qualifications if he believes the complete truth might be harmful to him. 4. With respect to question 17 of the application, Dr. Lotfy was never found guilty[21]. He was indicted and he pleaded guilty but in light of the Intervention in Lieu of Conviction procedure, no judgment of guilt was ever entered. On purely technical grounds, Dr. Lotfy’s defense to this allegation of false information, is valid[22]. As to question 6 and the failure to set forth the facts surrounding his Ohio Medical College suspension, Dr. Lotfy testified that the Medical College gave different reasons for its actions (the contract was not renewed, withdrawal, suspension) and that he was not quite sure what he was supposed to say.[23] Neither of these explanations or defenses can be given any significant weight. Dr. Lotfy’s attempts to find excuses, legal or other wise, his mischaracterization of the more than two year criminal court and medical college episode as nothing more than “clerical error”, in order not to disclose basic and significant facts related to his qualifications to practice medicine, is considered indefensible. 5. Dr. Lotfy presented a closing memorandum which included a 2000 decision by the Ohio Secretary of State which essentially stated that even if a person pleads guilty to an offense, the subsequent dismissal of the charge without an adjudication of guilt, voids or nullifies the plea of guilty. The Ohio Secretary of State is not an appellate court and its decisions have no legal significance outside the Secretary’s jurisdiction. 6. Based on the record of the hearing, Arizona Board counsel’s closing argument and memorandum, it is concluded that the language in A.R.S.§32-14-1(27)(d) “Committing a felony” means that the underlying acts found by a preponderance of the evidence are such they would constitute a felony if prosecuted. Counsel’s memorandum more fully presents the State’s position. In short, the statutory provision makes clear that a conviction is “conclusive evidence of the commission.” Impliedly this means that the “commission” of the felony can also be proven by means other than the conclusive evidence of a conviction.[24] Conclusions of Law 1. In light of the above facts and discussion, the following legal conclusions are made. a. The applicant purposely did not disclose significant relevant and material information to the Arizona Board in his application for a license. This was done in an attempt to mislead or otherwise deceive the Board. It is an “Attempt” under A.R.S. §13-1001(A)(2), to violate A.R.S. §32-1455(A)(2), and as such would constitute a Class six felony under A.R.S.§13-1001(C)(5). As such it is unprofessional conduct as defined in A.R.S.§32-1401(27) (a) violating state laws applicable to the practice of medicine, (d) committing a felony (q) such conduct as manifested by the applicant (deceit and lack of honesty) might be harmful and dangerous to the health of a patient or the public, and the foundation for the above conclusions constitute (jj) knowingly making false or misleading statements to the Board on a from required by the Board, written correspondence, including attachments with the Board. b. Based on the conclusions in 1(a) above, and under A.R.S. §32- 1422(A)(4) the applicant’s professional record indicates the applicant has committed acts and engaged in conduct which would constitute grounds for disciplinary action. c. Under A.R.S.§32-1422(C), the conduct has not been corrected or resolved in that the applicant continues to minimize, diminish and otherwise deny the essential findings and conclusions that he actively attempted to mislead the Board. There are no mitigating circumstances which prevent the resolution of the conduct. Recommended Decision It is recommended the decision of the Arizona Medical Board, denying a License to Practice Allopathic Medicine to Dr. Ibrahim Lotfy, be affirmed.

Done this day, June 20, 2005.

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Timothy C. Miller, Arizona Medical Board ATTN: Susan Ahn, Legal Coordinator 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________

----------------------- [1] Cairo, Egypt [2] State’s Exhibit page 17 (“State’s Exhibit” and “Exhibit” refer to the same set of documentary evidence, pages 1-187) [3] State’s Exhibit page 22 [4]State’s Exhibit pages 92 to 100 has a summary of the criminal proceedings. [5] State’s Exhibit page 17 (letter from Baystate) states Dr. Lofty was on “Daily Evaluations” (not probation) because he was falling behind his peers. [6] According to Arizona Board investigator Bruning, there was no specific follow up request that Dr. Lotfy answer this question because the fact that the question was not answered, was “overlooked by several people”. [7] State’s Exhibits pages 28 and 30 [8] According to Bruning, the website for the National Clearinghouse for Alcohol and Drug Information asserts Ketamine is abused by an increasing number of young people as a “club drug” and at raves and parties. It’s effects may produce disassociation, rapture, paranoia, or boredom among others (see pages 94 and 95 of the State’s Exhibit). Ketamine has apparently been on the market since 1960 but was classified as Schedule III drug in 1999 by the Department of Justice Drug Enforcement Agency. There is some question of whether the Medical College of Ohio was aware of this classification because it apparently treated Ketamine as a non-controlled substance (Exhibits page 140). [9] This explanation lacks credibility in light of all the evidence which will be discussed further in the conclusions. [10] State’s Exhibit page 45 [11] State’s Exhibit 53 [12] State’s Exhibit page 56 [13] Ibid [14] Exhibits page 176 and 177 [15] Dr Lotfy made a somewhat lengthy, rambling and repetitive presentation on why he had not and would not have used Ketamine improperly. He did not present specific or competent evidence to rebut the evidence that the Ketamine from the five vials had been put to some improper or unauthorized use. [16] State’s Exhibit 67. Dr Lotfy claims he had them in his locker because of “lack of proper waste disposal in the locker room.” This seems like a rather haphazard way of disposing of empty drug containers. [17] This was actually a response to the more recent April 6, 2004 request from investigator Bruning although investigator Jones had requested the additional information in January, 2004. [18] Three months for the request by Bruning. [19] There are repeated denials that this was intended but the facts speak otherwise. There was no legal requirement for Dr. Lotfy not to disclose the information. The clear and known facts were that he had been suspended or placed on a leave of absence by the Ohio Medical College. He had been indicted for five felonies. He had entered pleas of guilty to those felonies and though not convicted, he had been placed on probation including drug testing. All these things were unequivocal and known to Dr. Lotfy when he submitted his application and thereafter. They were not disclosed after he consulted legal counsel. Yet Dr. Lotfy continues to testify he had no intent to mislead or deceive the Board. The explanation defies reason and logic. Dr. Lotfy merely had to state the facts known at the time of the application and offered his explanations as further events unfolded. [20] Transcript page 129, lines 8-14. “I never said a word that I pled guilty in a court…” This is not considered the gravaman of the Board’s case because of possible language subtleties. However, it is consistent with an intent to not disclose certain information. [21] By way of clarification and correction, the ALJ is aware of his use of the word “convicted” (transcript, page 210, line 8). This was a misstatement and for the purpose of this recommended decision it is understood Dr. Lotfy was never convicted and no judgment of guilt was ever entered against him upon his plea of guilty. [22] Question asks for a finding of guilt and not a plea, or a plea of no contest. [23] Transcript pages 168 and 169, se also Finding of Fact paragraph 9 [24] Counsel attached a copy of No. 03F-17268-MDX in which case ALJ Tully concluded on page 9, paragraph 8, that the preponderance of the evidence supports the conclusion that the Respondent sexually abused two persons, the evidence did not support a conclusion of unprofessional conduct by the commission of a felony because “Such a determination must be made by a criminal court of law”. This was subsequently overturned by the Arizona Board in its final decision.

-----------------------

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