ALJDEC decisions subject to certification as final

07A-07L020-MDX · Arizona Medical Board · 2007-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 1, 2007 at 9:00 a.m. APPEARANCES: Petitioner Mehdy Zarandy, M.D. appeared on his own behalf; the Arizona Medical Board (“the Board”) appeared through Dean E. Brekke, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On September 11, 2006, the Board received Dr. Zarandy’s application for licensure. On the application, Dr. Zarandy checked the “no” box in response to twenty-one questions, including #13, “Has any training program taken action against you including probation, restriction, suspension, revocation, modification, accepted resignation, asked you to leave temporarily or permanently?” 2. Dr. Zarandy also disclosed on the application that he had attended a Residency of Pathology program at Eastern Virginia Medical School (“EVMC”) in Norfolk, Virginia between 1998 and 2002. 3. Dr. Zarandy signed the application, verifying under penalty of perjury “that all of the information contained herein and evidence of other credentials submitted herewith are true and correct.” 4. Dr. Zarandy’s application went to the Board’s Licensing Department, which gathered the information necessary to verify Dr. Zarandy’s credentials and all the information on the application. 5. The Board’s Licensing Department obtained derogatory information that contradicted the information that Dr. Zarandy had supplied on the application. The Board subsequently opened an investigation into the facts that Dr. Zarandy alleged on the application. 6. On August 15, 2007, the Board’s coordinator sent a letter to Dr. Zarandy, informing him that the Board had voted to deny his application, in relevant part as follows: This letter serves as official notification that at its recent meeting on August 8-9, 2007, the [Board] upheld the Executive Director’s denial of your application for licensure. The Board’s decision was based on the fact that you did not meet the basic requirements for licensure, specifically:

• You do not have a professional record that indicates that you have not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against you under Arizona law. A.R.S. § 32-1422(A)(4). Specifically, the Board’s investigation revealed that you made a false or misleading statement to the Board on your license application when you did not disclose that you were on academic probation during your third year of Pathology training at [EVMS] and subsequently resigned from the training program. A.R.S. § 32- 1427(B) and 32-1401(27)(jj). This conduct has not been corrected, monitored and resolved and there are no mitigating circumstances that prevent the resolution of this conduct. A.R.S. § 32-1422(C).

7. Dr. Zarandy requested a hearing on the Board’s denial under A.R.S. § 41-1092.03(B). 8. The Board referred the matter to the Office of Administrative Hearings and, on September 21, 2007, issued a Notice of Hearing. 9. On November 1, 2007, a hearing was held. Dr. Zarandy testified on his own behalf and had admitted into evidence five exhibits. The Board presented the testimony of Case Manager Anita Shepherd, who investigated the application for the Board, and had admitted into evidence four exhibits. Hearing Evidence 10. During the course of her investigation, Ms. Shepherd obtained copies of three letters and one meeting summary written during 2001 and 2002 from William F. Glass, II, M.D., Ph.D. to Dr. Zarandy, and one letter from Dr. Zarandy to Dr. Glass, in relevant part as follows: 1. On June 8, 2001, Dr. Glass reminded Dr. Zarandy that he had been on academic probation since March 22, 2001, due to the Residency Education Committee’s concerns about Dr. Zarandy’s “poor fund of knowledge, an inability to put data into appropriate clinical context, a lack of basic skills and weak or inappropriate inter-personal skills.” Although Dr. Zarandy had shown marked improvement in his basic and interpersonal skills, according to Dr. Glass, he “continue[d] to have major deficiencies in pattern recognition, basic knowledge, and most importantly [the] ability to draw together the clinical and pathological findings with the relevant basic knowledge in order to make an appropriate diagnosis.” As a result, Dr. Glass informed Dr. Zarandy that EVMS would not promote him to PGY-4 or renew his contract. 2. On June 13, 2001, Dr. Glass informed Dr. Zarandy that EVMS would renew his contract but that it would not promote him to the 4th year and that he would remain on probation through December 2001. In January 2002, the Pathology Resident Education Committee would review Dr. Zarandy’s progress and decide whether EVMS would renew his contract for the 2002/2003 academic year. 3. On October 12, 2001, Dr. Glass summarized his meeting with Dr. Zarandy on that date. Although Dr. Zarandy had made “slow progress,” his “performance [was] still below that expected of a third year pathology resident.” Dr. Zarandy “was told that his performance in the anatomic pathology probationary period would have to be much better to be retained in the program next year.” Dr. Zarandy signed the summary, indicating that he had received a copy of it but not that he agreed with its content. 4. On January 15, 2002, Dr. Zarandy wrote a letter to Dr. Glass, informing him that, due to “the situation of training at the department of pathology and the difficulties which exist in the residency training program in that department,” he would leave EVMC on June 31, 2002 and would complete his last year of residency “in a better program with adequate teaching and training.” 5. On June 6, 2002, Dr. Glass wrote a letter to Dr. Zarandy regarding his decision to leave the EVMS Pathology Residency Training Program. Dr. Glass informed Dr. Zarandy that, although his academic progress at EVMC had not met expectations for a pathology resident in his fourth year of training, “in recognition of progress made, [Dr. Zarandy] was being given credit for 26 months of the training completed prior to the initiation of the probationary period.” 6. Dr. Glass identified himself on the documents as “Chair, Department of Pathology and Anatomy” and/or “Director, Pathology Residency Program” at EVMS. 11. Ms. Shepherd testified that she attempted to contact EVMS and had left a message for Dr. Glass, but that no one had responded to the message. She did not know why no one at EVMS responded to her inquiry. 12. Dr. Zarandy had graduated from the University of Tehran School of Medicine in Iran in 1984. Until 1996, he practiced medicine in Iran. 13. Dr. Zarandy testified that he has been trained as a surgical and forensic psychologist. He completed an internship in anesthesiology at the University Hospital in Cleveland, Ohio between 1996 and 1997 and a residency at the same hospital between 1997 and 1998. 14. Dr. Zarandy testified that he then undertook a residency of pathology at EVMS. When he entered the residency program at EVMS, the program director was Roy Sutton, M.D. Although EVMS was able to teach pathology to medical students on its campus, because it needed a hospital for its residency program, EVMS associated with Sentara Norfolk General Hospital (“Sentara”). There was always competition between Sentara, which was a privately owned hospital, and the pathology department at EVMS. 15. Dr. Zarandy testified that, during the second year of his residency program at EVMS, Dr. Sutton resigned and Dr. Glass became chairman of the program. EVMS and Sentara eventually severed their relationship. Dr. Zarandy was the vice president of the staff group at EVMS. 16. Dr. Zarandy testified that EVMS received “lots of criticism” about its training of residents, especially in pathology. The Residency Review Committee (“RRC”) of the American Medical Association reviewed the competency of the EVMS program and placed it on probationary status. 17. Dr. Zarandy testified that, at the time the RRC placed EVMS on probation, the pathology residency program had five residents. The four other residents left the program. He was the only one who stayed because he wanted to help fix the problems. 18. Dr. Zarandy testified that Dr. Glass never had any academic or supervisory contact with him and did not have a teaching position at EVMS. Dr. Glass thought that Dr. Zarandy had “orchestrated everything” that led the RRC to place the EVMS residency program on probation. Dr. Glass had written the negative letters as a result of personal animosity toward Dr. Zarandy. 19. Dr. Zarandy had admitted into evidence an undated letter addressed “to whom it may concern,” on EVMS stationery, from Roy C. Sutton, M.D. of the Department of Pathology at Sentara, supporting Dr. Zarandy’s application. Dr. Sutton “served as the program director for the pathology program at [EVMS] during the majority of [Dr. Zarandy’s] residency training.” Dr. Sutton had counseled Dr. Zarandy extensively during his first year of residency because “he did not have a flair for image processing.” Dr. Sutton had told Dr. Zarandy “he would have to work 3-4 times as hard as most people to achieve the same result as a pathologist,” but Dr. Zarandy rose to the challenge, spending most evenings and weekends doing extra reading and studying. Dr. Sutton concluded: [Dr. Zarandy] is more devoted to pathology as a career than any resident that I have seen in our program. He was extremely respectful to his colleagues and peers while he was here. He was one of the senior members of the residents council and house staff of the hospital and has worked tirelessly for both the good of this program and of other programs in our system.

When I sign out with [Dr. Zarandy] at the microscope he is able to construct a reasonable differential, for a resident at his level, and recommend the appropriate work up. It has been my great pleasure and honor to have worked with Dr. Zarandy during his time here and I am sure that his intense dedication and commitment to doing the best he can do will serve him well in his career. . . .

20. Dr. Zarandy testified that, after his third year at EVMS, he decided to stay and see what would happen. He never resigned from the program. He finally decided to leave like the other four residents because the EVMS program could not survive. 21. Dr. Zarandy testified that the EVMS residency program formally closed in June 2006. Dr. Glass stayed on until December 2006, when he was fired. Presently, EVMS only has a department of pathology for teaching medical students and H. Raymond Tahhan, M.D. is the director of the program. Dr. Glass presently holds no academic position and is blamed for “practically destroying” the pathology program at EVMS. 22. Dr. Zarandy had admitted into evidence an undated, unsigned letter “to whom it may concern” from H. Raymond Tahhan, M.D., the Medical Director, Transfusion Services of Sentara. Dr. Tahhan stated that, since he had interacted with Dr. Zarandy for four years, he felt qualified to comment on Dr. Zarandy’s abilities. Regarding Dr. Zarandy’s performance in the EVMS program, Dr. Tahhan stated in relevant part: Dr. Zarandy spent four years at EVMS in the Residency Program for Anatomic and Clinical Pathology. He rotated for three months on the Transfusion Medicine Service at Sentara Norfolk General Hospital under my direction. Dr. Zarandy performed well. His performance was similar to that of other students at the same level of training; however, his work ethics and his willingness to volunteer made him stand out.

23. Dr. Zarandy testified that, after he left the EVMS residency program, he completed his last year of residency, along with a fellowship in surgical pathology, at Danbury Hospital, which was a Yale-affiliated medical school, between 2002 and 2003. 24. Dr. Zarandy had admitted into evidence a letter dated June 18, 2004 from Steven C. Sieber, M.D. of the Department of Pathology at Danbury Hospital in Danbury, Connecticut. Dr. Sieber “spent a great deal of time with Dr. Zarandy,” during which Dr. Zarandy “demonstrated a good fund of knowledge in surgical pathology, and always supplemented our signout sessions with his wealth of clinical knowledge.” Dr. Zarandy was “hardworking and inquisitive.” 25. Dr. Zarandy testified that, after he left Danbury Hospital, between 2003 and 2004, he completed a fellowship in forensic pathology at Indiana University in Indianapolis, Indiana. 26. Dr. Zarandy had admitted into evidence a letter dated May 20, 2005, from John N. Eble, M.D., F.R.C.P.A., the Nordschow Professor and Chairman of the School of Medicine at Indiana University. Dr. Eble confirmed that Dr. Zarandy had been a fellow in the Indiana University School of Medicine from July 21, 2003 to July 20, 2004. According to Dr. Eble, Dr. Zarandy had “faithfully and honorably discharged the duties of the position.” 27. Dr. Zarandy also had admitted into evidence an undated letter from Dean A. Hawley, M.D., a Tenured Professor of Pathology and Forensic Pathologist at the Indiana University School of Medicine Department of Pathology. Dr. Zarandy had attended a program in Virginia that was “well-known” to Dr. Hawley and had been recommended by two people in that program whom Dr. Hawley had known for years. Dr. Hawley described Dr. Zarandy as follows: Dr. Zarandy is quite capable in both autopsy and microscopic pathology. He has a very broad understanding of medicine. He readily demonstrates a considerable depth of knowledge about the esoteric science of disease; and he also has considerable experience with practical diagnostic medicine. He is quite capable of formulating very sophisticated differential diagnoses, and he is able to determine how to separate the possibilities using limited resources.

His work habits are excellent. He is neither slow nor casual with cases, and he maintains respect for the time of the technical help. His reports are completed in a timely fashion. He is very personable and intellectual.

28. Dr. Zarandy testified that he filled the application out quickly, going down the “no” column to check each of the 26 questions. Because he had been given credit for at least a portion of his residency at EVMS and voluntarily left the program because the program itself was on probation, not because of any involuntary termination, he also checked “no” in response to question #13. 29. Dr. Zarandy has been licensed as an allopathic physician by the State of Delaware. He testified that he did not believe that the Delaware license application included a question comparable to question #13 on the Arizona application. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction.[1] Dr. Zarandy bears the burden of proof and must establish that he meets statutory and regulatory qualifications to be issued an allopathic physician’s license in Arizona by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] Dr. Sutton’s letter of reference on Dr. Zarandy’s behalf states that he did experience some difficulty during his first year of residency at EVMS, although he did remedy his deficiencies through dint of extraordinary effort. Dr. Glass’ various correspondence indicate, at a minimum, some conflict between Dr. Glass and Dr. Zarandy while both were associated with the EVMS residency program. Dr. Glass’ various letters are inconsistent. Despite his threats, EVMS apparently renewed Dr. Zarandy’s contract in June 2001 and in January 2002. Although on this record the exact nature of the action that Dr. Glass took against Dr. Zarandy in the EVMS program, it is clear that some action was taken. Dr. Zarandy’s response to question #13 on the application therefore was false. A.R.S. § 32-1401(27)(jj) defines “unprofessional conduct” to include “[k]nowingly making a false or misleading statement to the board on a form required by the board . . . .” Persons who apply to state agencies for licensure are presumed to know the law.[5] “As a matter of public policy, all persons are charged with knowledge of law pertaining to their transactions . . . .”[6] Because license applicants are presumed to know the law’s requirements, a mistake as to such requirements does not excuse licensees’ failure to meet them.[7] Respondent’s misunderstanding about the information that question #13 was designed to elicit does not excuse his misleading response. Dr. Zarandy therefore committed unprofessional misconduct by knowingly making a false statement on his license application when he answered “no” to question #13. Dr. Zarandy therefore has not borne his burden to establish that he meets the requirements for licensure set forth in A.R.S. § 32-1422(A)(4)[8] and 32-1427(B)(1).[9] In mitigation of the penalty under A.R.S. § 32-1422(C),[10] Dr. Zarandy has established through his letters of reference that he has remedied any deficiencies in knowledge or skills that caused him difficulties at EVMS. He also established at the hearing that his difficulties with Dr. Glass were mostly personal and not the result of Dr. Zarandy’s persistent professional shortcomings. Dr. Zarandy has established further that his false response to question #13 was the result of carelessness, rather than any intent to mislead the Board. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Arizona Medical Board uphold the appeal filed by Mehdy Zarandy, M.D. and grant his license application. It is further recommended that the Board place Dr. Zarandy’s license on probation for a period of one year under A.R.S. § 32-1427(H)(1) and impose the following probationary conditions: 1) Only the time that Dr. Zarandy is actively practicing allopathic medicine in Arizona shall accrue to his probationary period; and 2) Dr. Zarandy shall work under the supervision of another licensed allopathic physician, who shall submit quarterly reports to the Board, on January 15, March 15, June 15, and September 15 of each year, attesting to Dr. Zarandy’s acceptable performance of his employment-related responsibilities. Done this day, November 13, 2007.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Arizona Medical Board Amanda Diehl, Deputy Executive Director 9545 E. Doubletree Ranch Rd. Scottsdale, AZ 85258

By __________________________

----------------------- [1] See A.R.S. § 32-1401 et seq.

[2] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

[3] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[4] Black’s Law Dictionary at page 1220 (8th ed. 1999).

[5] See Lugo v. Moore, 11 Ariz. App. 85, 90, 462 P.2d 102, 107 (1969). In that case, the Court of Appeals noted:

Lugo urges that the Department is estopped to deny the validity of the transfer to him. We cannot agree. He is presumed to know the law. There is an indication in the record that the 1967 Act had been distributed to him as a license holder prior to the time in question. It is possible that knowledgeable advice was not given to him in connection with the new law because it had been in effect such a short period of time. Unfortunately he was bound by the law, new though it was.

Id.; accord Conway v. State Consolidated Publishing Co., 57 Ariz. 162, 171, 112 P.2d 218 (1941).

[6] Turner v. State Employees Retirement System, 485 So. 2d 765 (Ala. App. 1986).

[7] See Newman v. Fidelity Savings and Loan Ass’n, 14 Ariz. 354, 359, 128 P. 53 (1912).

[8] This statute requires applicants for licensure to “[h]ave 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.”

[9] This statute requires license applications to include the oath of the applicant that “[a]ll of the information contained in the application and accompanying evidence or other credentials submitted are true.”

[10] This statute provides that that, “[i]n determining if the requirements of [A.R.S. § 32-1422(A)(4)] have been met, if the board finds that the applicant committed an act or engaged in conduct that would constitute grounds for disciplinary action, the board shall determine to its satisfaction that the conduct has been corrected, monitored and resolved. If the matter has not bee resolved, the board shall determine to its satisfaction that mitigating circumstances exist which prevent its resolution.”

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