ALJDEC decisions subject to certification as final

07A-070247-MDX · Arizona Medical Board · 2007-07-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11-12, 2007. APPEARANCES: The Arizona Medical Board was represented by Assistant Attorney General Anne Froedge. Marvin L. Gibbs, M.D. appeared personally and was represented by his attorney, Daniel P. Jantsch, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. The Arizona Medical Board (“Board”) is the authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. 2. Marvin L. Gibbs, M.D. (“Respondent”) is the holder of License No. 13736 for the practice of allopathic medicine in Arizona. 3. Respondent practiced in obstetrics and gynecology in Arizona from 1983 to approximately 2004. In August 2004, he then opened the clinic named Universal Health and Wellness, where he treated patients with male sexual dysfunction. He was the sole owner of that practice. 4. Respondent’s medical license was required to be renewed in August 2006. Respondent did not renew the license within the four month grace period. Pursuant to A.R.S. § 32-3202, Respondent’s license did not expire in December 2006, but instead was suspended by operation of law due to active investigations by the Board. 5. On or about August 25, 2006, the Board summarily suspended Respondent’s medical license in Case No. MD-06-0207A. A formal hearing was conducted in that case before the Office of Administrative Hearings, an independent agency. At its February 2007 meeting, the Board adopted the Administrative Law Judge’s recommended Order in that case and lifted Respondent’s license suspension for “time served.” The Board’s Order in that case placed Respondent on probation for one year to monitor his medical records keeping. 6. On April 19, 2007, the Board considered another summary action against Respondent in Case No. MD-07-0247A. The Board entered an Interim Findings of Fact, Conclusions of Law and Order of Summary Suspension of License. 7. Respondent’s treatment for males with sexual dysfunction varied from oral agents called phosphodiesterase inhibitors, such as Viagra, Cialis and Levitra, to injectable medications called Trimix. 8. Trimix consisted of the following three different medications in a solution: Phentolamine, Papaverine and Prostaglandins. 9. Trimex injectable therapy requires that the medicated syringes be kept cool by refrigeration. 10. After obtaining his dispensing certificate in January 2006, Respondent’s standard practice was be that he would perform a physical examination of a patient, then write a prescription and send it to a neighboring pharmacy named the Compounding Center. The pharmacy would then return the medication in vials to Respondent’s clinic. Respondent’s clinic would purchase the medication at a wholesale price and then Respondent’s clinic would load the medication from the vials into syringes at the prescribed dosage levels and then sell the loaded syringes to the patient at a marked up price. Prior to Respondent obtaining a dispensing certificate, the pharmacy loaded the medication into the syringes and returned the loaded syringes to the clinic. 11. After being summarily suspended in August 2006, Respondent continued to operate his clinic. Respondent testified that he would open the clinic in the morning and close it in the evening after doing accounting and taking money to the bank. He denies practicing medicine. 12. Dr. Michael Berke, N.P., a naturopathic physician, worked for Respondent from September 6, 2006 to October 3, 2006. Dr. Berke saw approximately 80 to 90 patients over 14 days. It is determined that Respondent had reasonable knowledge that Dr. Berke was no longer providing services to his clinic after October 3, 2006 13. Dr. Berke wrote prescriptions and dispensed medications while working at Respondent’s clinic. Dr. Berke did not, and does not, have a dispensing certificate. He testified that he assumed that Respondent’s dispensing certificate was still in effect, which it was not. 14. Respondent profited by Dr. Berke seeing patients, writing prescriptions and dispensing medications to patients at his clinic while he was summarily suspended. 15. Respondent loaded syringes for patient J.L. while Dr. Berke was working for him. 16. There is no evidence that a medical license is required for loading prescription medications from a vial into syringes. 17. Dr. Berke testified that he left several signed but blank prescriptions at Respondent’s clinic. 18. On or about October 27, 2006, a pharmacy log reflects a prescription issued by Dr. Berke for a compound Trimix naming Respondent as the patient. Dr. Berke testified that he had no knowledge of that prescription. Dr. Berke testified similarly to prescriptions dated November 1, 2006 and November 3, 2006, when he no longer was working at Respondent’s clinic. While Respondent testified that Dr. Berke was on call for his clinic, Dr. Berke credibly testified that he was no longer working at the clinic after on or about October 3, 2006. 19. Dr. Berke candidly testified that he was dispensing medications to patients while working at Respondent’s clinic. It is found that Respondent had knowledge that such dispensing was occurring. 20. On or about November 1, 2006, Respondent hired Juan Rojas to answer the clinic’s telephone, schedule appointments for patients, and market his clinic’s services via the telephone to patients. 21. On or about November 3, 2006, Respondent was listed as the prescribing physician for quantity 10 compound ST1. ST1 is a prescribed medication. Respondent testified that he could obtain the prescribed medication because it was allegedly for in-house diagnostic use. 22. On or about November 30, 2006, Gregory Muhammad, M.D. started working for Respondent. Dr. Muhammad saw approximately eight patients and wrote 12 prescriptions during his brief tenure working for Respondent. 23. J.E. was a patient of Respondent who first presented to his clinic in 2006. J.E. had heard about Respondent’s services by a radio advertisement. 24. J.E. had a stroke on February 17, 2005. 25. Respondent wrote a prescription for injectable medications for J.E. in July 2006. However, J.E. had not purchased the entire prescription medication. 26. Respondent closed his clinic in January 2007 but still stayed in business. 27. In March 2007, Respondent’s employee called J.E. about the latter’s obtaining additional prescription injectable medications under the July 2006 prescription. J.E. agreed to purchase the medications. J.E. and Respondent’s employee met in the parking lot of a Walgreen’s drug store, where J.E. paid for the prescription medications and Respondent’s employee gave him the prescribed injectable medications. 28. Respondent is found to have dispensed prescribed injectable medications to J.E. through his employee in March 2007 without having a dispensing certificate. 29. On or about April 12, 2007, Respondent appeared with patient J.E. at the emergency department of St. Luke’s hospital in Tempe, Arizona. J.E. presented with a priapism that had lasted at least 48 hours. The emergency department staff was under the impression that Respondent was an actively licensed physician based upon their interactions with him. J.E. had surgery to resolve his condition.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(A), the standard of proof in this matter is preponderance of the evidence. 3. Respondent violated the provisions of A.R.S. § 32-1401(27)(a), specifically A.R.S. § 32-3202(A), by not timely renewing his medical license. 4. Respondent violated the provisions of A.R.S. § 32-1401(27)(r). 5. The evidence of record supports the Board’s summary suspension of Respondent’s medical license on April 19, 2007 to protect the public health, safety or welfare, pursuant to A.R.S. § 32-1451(D). 6. Respondent should be assessed the costs of the formal hearing, pursuant to A.R.S. § 32-1451(M).

RECOMMENDED ORDER

The summary suspension of Respondent’s License No. 13736 shall remain in full force and effect until the effective date of the Order entered in Case No. MD-07-0247A. Respondent’s License No. 13736 shall be revoked on the effective date of the Order entered in Case No. MD-07-0247A. Respondent’s License No. 13736 shall be deemed expired for failure to timely renew it on the effective date of the Order entered in Case No. MD- 07-0247A. Respondent shall be assessed the costs of the formal hearing, which shall be paid by Respondent to the Board within 30 days of being invoiced by the Board, unless such deadline date is extended by the Board or authorized Board staff.

Done this day, July 2, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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

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