ALJDEC decisions subject to certification as final

06A-10262-MDX · Arizona Medical Board · 2007-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2007. The record closed on February 6, 2007. APPEARANCES: Assistant Attorney General Anne Froedge represented the Arizona Medical Board. Respondent King T. Leung did not appear. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this case is whether King T. Leung, M.D. has engaged in unprofessional conduct as defined in A.R.S. § 32-1401(27) and, if so, whether he is subject to disciplinary action pursuant to A.R.S. § 32-1451. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Order: Procedural History The hearing in this matter convened on January 11, 2007 pursuant to a Notice of Hearing issued by the Arizona Medical Board on December 21, 2006. Dr. Leung elected not to appear and defend. At the outset of the hearing, the State presented to the Tribunal a stipulation and a January 9, 2007 letter that it had received from Dr. Leung. The stipulation, which was reached between counsel for the State and counsel for Dr. Leung, is as follows: 1. If Dr. Leung were to testify, he would state that he disagrees with the findings and recommendations of the Board’s outside medical consultants; 2. Dr. Leung feels that the Board investigation was incomplete because no one contacted him before concluding that his care was substandard;

3. Dr. Leung has retired from the practice of medicine and will not return to the practice of medicine; 4. Dr. Leung believes his care meets the standard of care; and 5. Dr. Leung’s January 9, 2007 letter shall be admitted into evidence as Dr. Leung’s substantive statement of his defense, it shall not be necessary for Dr. Leung or his counsel to appear personally at hearing, and no inference will rise from Dr. Leung’s failure to appear personally at the hearing. See Reporter’s Transcript of Proceedings, at 7. Dr. Leung’s January 9, 2007 letter sets forth his substantive response to the Board’s allegations of unprofessional conduct. The Administrative Law Judge accepted Dr. Leung’s letter into the Administrative Record, and reviewed the contents of that letter. However, the Administrative Law Judge does not consider Dr. Leung’s letter to constitute substantive evidence, and has given it no weight in the determination of this matter. Dr. Kelly Sems, one of the Board’s medical consultants, and Tina Geiser, an assistant manager in the Board’s Office of Investigations, appeared and gave testimony at hearing. That testimony, in combination with the documentary evidence of record (exhibits 1-25), supports the Interim Findings of Fact set forth by the Board in its November 30, 2006 Order for Summary Suspension of License, and the Administrative Law Judge adopts those findings herein. FINDINGS OF FACT 1. Dr. Leung is the holder of License No. 10262 for the practice of allopathic medicine in the State of Arizona. 2. The Arizona Medical Board (the “Board”) is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. 3. The Board initiated case number MD-05-0416A after receiving notification of a malpractice settlement involving Dr. Leung’s care and treatment of a sixty year-old female patient (“RR”). RR presented to Dr. Leung on January 26, 1998 complaining of

rectal bleeding. Dr. Leung performed a sigmoidoscopy and rectal examination and noted as his only finding internal hemorrhoids. There was no indication in the record that there was retroflexion of the sigmoidoscope. Dr. Leung noted the rectal examination was negative. 4. RR returned to Dr. Leung in August 1999 complaining of recurrent rectal bleeding. Dr. Leung performed a sigmoidoscopy and rectal examination. There was no indication in the record that there was retroflexion of the sigmoidoscope. Dr. Leung did not report any findings. RR returned to Dr. Leung in April 2000 with abdominal distension and lack of bowel movement. Dr. Leung performed a rectal examination that revealed an empty vault. Dr. Leung admitted RR to the hospital. A computed tomography scan of the abdomen demonstrated a possible adrenal mass. A barium enema was negative for an obstructing lesion. RR was discharged to Dr. Leung for outpatient follow-up. On May 10, 2000, Dr. Leung referred RR to a colorectal surgeon for a May 25, 2000 appointment, but RR did not keep the appointment. 5. On May 12, 2000 RR presented to the emergency room where another physician performed a rectal examination that showed a trace of blood and no palpable rectal mass. In September 2000, RR underwent resection of a large rectal carcinoma. RR later developed metastasis and died. 6. The standard of care in evaluating recurrent rectal bleeding requires a physician to look above the reach of the sigmoidoscope using retroflexion. The standard of care also requires a physician to timely refer a patient for a more comprehensive evaluation by a subspecialist. 7. Dr. Leung deviated from the standard of care because he did not look above the reach of the sigmoidoscope using retroflexion and because he did not timely refer RR for a more comprehensive evaluation by a subspecialist. 8. Dr. Leung’s failure to not look above the reach of the sigmoidoscope using retroflexion and failure to timely refer RR for a more comprehensive evaluation by a subspecialist resulted in his missing a rectal lesion and this delay in diagnosis and treatment led to RR’s death.

9. The Board initiated case number MD-06-0340A after receiving a complaint regarding Dr. Leung’s care and treatment of a seventy year- old female patient (“FA”). The Board’s chief medical consultant reviewed the complaint. 10. FA was seen by Dr. Leung nine times between January 16, 2006 and April 11, 2006. FA’s initial complaint was pulmonary embolism, but Dr. Leung’s chart is not clear about what was actually happening with FA. Dr. Leung was attempting to manage warfarin anticoagulation and there was a mention of thrombocytopenia, but Dr. Leung did not note any differential nor was there any discussion in his records. 11. On January 30, 2006, FA had a sub-therapeutic Pro Time International Normalized Ratio (“PT/INR”) that Dr. Leung did not address. On February 8, 2006 Dr. Leung diagnosed FA with polyarteritis, but did not provide any explanation of this diagnosis and failed to address the sub-therapeutic PT/INR. On March 1, 2006 Dr. Leung gave FA Celebrex even though she was on warfarin and had thrombocytopenia. On March 3, 2006 FA presented to Dr. Leung with diarrhea and Dr. Leung diagnosed food poisoning. Dr. Leung treated FA with clindamycin – not a known treatment for food poisoning. FA developed a rash and Dr. Leung changed the medication to tetracycline – also not a known treatment for food poisoning. Dr. Leung still did not attend to FA’s anti-coagulation issues. 12. On March 6, 2006 Dr. Leung diagnosed FA with colitis, but did not document any supporting discussion or evidence. Dr. Leung also continued to fail to address FA’s anti-coagulation issues. Dr. Leung failed to perform an electrolyte evaluation and a complete blood count. FA returned to Dr. Leung on March 15, 2006 apparently feeling better, but Dr. Leung’s chart contains limited documentation and no discussion of anti-coagulation. FA had a follow-up appointment with Dr. Leung on March 20, 2006 and he recorded her INR at 6.9 and continued Coumadin at a reduced dose. Dr. Leung did not mention holding the dose, but did mention FA’s blood pressure was a problem. However, Dr. Leung failed to record a blood pressure reading to support this finding. FA saw Dr. Leung on April 11, 2006 for a follow- up appointment for hypertension and Dr. Leung diagnosed dysuria without a description or work-up. Dr. Leung also diagnosed pulmonary infarction and thrombocytopenia with no discussion.

13. The standard of care requires a physician to administer Heparin until the patient is adequately anti-coagulated with Coumadin and to hold Coumadin when the patient’s level is 6.9. 14. Dr. Leung deviated from the standard of care by failing to administer Heparin to FA until she was adequately anti-coagulated with Coumadin and by failing to hold FA’s Coumadin when her level was 6.9. 15. Poorly managed Coumadin in the setting of pulmonary embolism and inadequate treatment of dehydration caused by food poisoning could have caused permanent damage to FA’s lungs, brain, kidney, and liver and could have resulted in her death. 16. Based upon the chief medical consultant’s review of the case involving FA, Board staff randomly selected two more patient charts for review. 17. Dr. Leung provided care to a seventy-one year old male patient (“MCM”) from May 2000 until June 2006. MCM had hypertension and prostate cancer that was diagnosed in 1997 and treated with Lupron and seed implants. Dr. Leung’s progress notes were in a pre-printed format with areas to write in the chief complaint, history, physical examination, diagnosis/management options and plan. Dr. Leung’s notations for each visit with MCM were few – the entire history noted in the first visit is “c/o regular visit/PSA. I. Hypertension II. Prostate CA III. Hyperlipidemia.” On subsequent visits MCM had hemoccult positive stools and elevated liver functions that Dr. Leung failed to address with colonoscopy or barium enema with flexible sigmoidoscopy. Dr. Leung ignored MCM’s health maintenance issues and inadequately managed his hypertension. 18. The standard of care requires a physician to perform routine health maintenance, such as rectal examinations; to adequately work-up rectal bleeding by performing a colonoscopy or barium enema with a flexible sigmoidoscopy; and to perform routine prostate examinations in patients with prostate carcinoma. 19. Dr. Leung deviated from the standard of care because he failed to provide MCM with routine health maintenance, including rectal examinations; because he failed

to adequately work-up MCM’s hemoccult positive stool or bleeding; and because he failed to perform routine prostate examinations of MCM. 20. Inadequate health maintenance could delay a diagnosis of colon or prostate cancer. 21. KS, a fifty-five year-old male with coronary artery disease and a history of rectal bleeding, presented to Dr. Leung complaining of acute severe headache. Dr. Leung did not perform and/or document a neurologic examination of KS. Dr. Leung diagnosed KS with migraines and treated him with a variety of medications. Dr. Leung saw KS in follow-up of migraine and polyuria and polydipsia. Dr. Leung did not perform a prostate examination, yet he diagnosed KS with prostatic enlargement. 22. KS saw Dr. Leung multiple times for migraine and depression from June 2003 through February 2004. On February 5, 2005 Dr. Leung diagnosed KS with attention deficit disorder and referred KS to a psychiatrist. At a May 16, 2006 visit Dr. Leung noted KS had abnormal eye movements and on June 23, 2006 saw him for pre-operative clearance for eye surgery. Dr. Leung noted an abnormal EKG and requested a cardiology consultation. KS was hospitalized from July 11, 2006 through July 15, 2006 by another physician who believed he had sustained a reversible ischemic neurologic deficit. During his hospitalization KS was noted to be aspirating and required PEG tube placement. Dr. Leung saw KS on August 2, 2006, again to clear him for eye surgery. Dr. Leung did not document KS’s recent hospitalization or need for treatment of elevated cholesterol and tight control of blood pressure as recommended in a neurology consult obtained during KS’s hospitalization. KS went on to have a stroke and hemiplegia. 23. The standard of care requires a physician to perform routine health maintenance; to perform a colonoscopy in a patient who presents with a history of rectal bleeding; to treat a patient’s elevated cholesterol; and to control a patient’s blood pressure. 24. Dr. Leung deviated from the standard of care by failing perform routine health maintenance, such as hemoccult testing for KS; by failing to work-up hemoccult

positive stool or rectal bleeding; by failing to treat KS’s elevated cholesterol; and by failing to control KS’s blood pressure. 25. KS had a neurologic episode in July 2006 that may have been prevented if his blood pressure and cholesterol had been tightly controlled. 26. A physician is required to maintain adequate legible medical records containing, at a minimum, sufficient information to identify the patient, support the diagnosis, justify the treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient and provide sufficient information for another practitioner to assume continuity of the patient’s care at any point in the course of treatment. A.R.S. § 32-1401(2). Dr. Leung’s records for FA, MCM, and KS were inadequate as described above. 27. During the review of case number MD-06-0340A a concern was raised about Dr. Leung’s ability to safely engage in the practice of medicine. In order to assess Dr. Leung’s competency the Executive Director, on October 26, 2006, issued an Interim Order requiring Dr. Leung to present for an evaluation at the Physician Assessment and Clinical Education Program (“PACE”) within thirty days of the date of the Order. Dr. Leung was due to present to PACE not later than November 26, 2006. On November 27, 2006 PACE notified Board staff that Dr. Leung had informed them he would not be participating in the evaluation. 28. At some point, Board staff was informed that Dr. Leung is or may be physically unable to safely engage in the practice of medicine due to serious health concerns. 29. On November 30, 2006, the Board issued Interim Findings of Fact and Conclusions of Law under which the Board concluded that Dr. Leung had violated A.R.S. § 32-1401(27)(e) (failing or refusing to maintain adequate records on a patient), 32-1401(27)(q) (any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public), 32-1401(27)(r) (violating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director), and 32-1401(27)(ll) (conduct that the board determines is gross negligence,

repeated negligence or negligence resulting in harm to or the death of a patient), and A.R.S. § 32-1451(A) (physically unable safely to engage in the practice of medicine). The Board concluded that emergency action was required under A.R.S. § 32-1451(D), and ordered that Dr. Leung’s license be summarily suspended.[1] 30. On December 21, 2006, the Board issued a Notice of Hearing setting this matter for formal administrative hearing before the Office of Administrative Hearings, an independent state agency. The Board incorporated its Interim Findings of Fact, Conclusions of Law and Order for Summary Suspension of License by reference into the Notice of Hearing. CONCLUSIONS OF LAW 1. In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Dr. Leung engaged in unprofessional conduct as defined in A.R.S. § 32-1401(27)(e), (q), (r), and/or (ll), and that he is subject to disciplinary action pursuant to A.R.S. § 32-1451. See A.A.C. R2-19-119. 2. 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). 3. The Administrative Law Judge concludes, based on the evidence presented, that the Board sustained its burden of proof as to each of Dr. Leung’s alleged violations of A.R.S. § 32-1401(27). 4. Under A.R.S. § 32-1401(27)(e), a physician engages in unprofessional conduct if the physician fails or refuses to maintain adequate records on a patient. 5. The evidence demonstrated that Dr. Leung failed to maintain adequate records for patients RR, FA, MCM, and KS. Therefore, Dr. Leung violated A.R.S. § 32-1401(27)(e). 6. Under A.R.S. § 32-1401(27)(q), a physician engages in unprofessional conduct if the physician engages in any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.

7. The evidence demonstrated that Dr. Leung failed to adhere to the relevant standards of care in his treatment of RR, FA, MCM, and KS, and that such failure was either harmful or potentially harmful to the health of those patients. Therefore, Dr. Leung violated A.R.S. § 32- 1401(27)(q). 8. Under A.R.S. § 32-1401(27)(r), a physician engages in unprofessional conduct if the physician violates a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director. 9. The evidence demonstrated that Dr. Leung violated the Order issued by the Board’s executive director that he attend a PACE evaluation. Therefore, Dr. Leung violated A.R.S. § 32-1401(27)(r). 10. Under A.R.S. § 32-1401(27)(ll), a physician engages in unprofessional conduct if the physician engages in conduct that the board determines is gross negligence, repeated negligence or negligence resulting in harm to or the death of a patient. 11. The evidence demonstrated that Dr. Leung repeatedly failed to adhere to professional standards of care in his treatment of RR, FA, MCM, and KS, and that such failures were either harmful or potentially harmful to the health of those patients. Therefore, Dr. Leung violated A.R.S. § 32-1401(27)(ll). 12. A.R.S. § 32-1451(M) provides:

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.

13. Based on the foregoing statute, Dr. Leung is subject to disciplinary action because he is found to have engaged in unprofessional conduct based on his violations of A.R.S. § 32- 1401(27)(e), (q), (r), and (ll).

14. The State requested that Dr. Leung’s license be revoked. Based upon Dr. Leung’s demonstrated violations of A.R.S. § 32-1401(27), coupled with his decision to cease practicing medicine (as reflected in the stipulation between the parties), the Administrative Law Judge concludes that revocation of Dr. Leung’s license is the proper disciplinary action. ORDER 1. The Board’s November 30, 2006 Order summarily suspending Dr. Leung’s license to practice medicine in the State of Arizona is affirmed. 2. Commencing on the effective date of the Order entered in this matter, Dr. Leung’s license to practice medicine in the State of Arizona (No. 10262) shall be revoked.

Done this day, February 26, 2007.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of February, 2007, to:

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

By ___________________________ ----------------------- [1] At hearing, the Board withdrew its allegation that Dr. Leung had violated A.R.S. § 32-1451(A).

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