ALJDEC decisions subject to certification as final

07A-082707B-MRT-rhg · Medical Radiologic Technology Board of Examiners · 2008-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 29, 2008 APPEARANCES: Tamara Dias appeared on her own behalf; Assistant Attorney General Elizabeth Campbell represented the Arizona Medical Radiologic Technology Board of Examiners ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The Arizona Medical Radiologic Technology Board of Examiners (the “Board”) brought a disciplinary action against Tamara Dias for alleged violations of A.R.S. § 32-2821. After a hearing the Board revoked Ms. Dias’ license. Ms Dias requested, and the Board granted a Re-hearing leading to the instant matter. FINDINGS OF FACT Tamara Dias held license numbers CRT-6456 and CMT-1579 for the practice of radiologic technology. On August 31, 2007, the Board found that public health, safety, and welfare required emergency action and voted to summarily suspend Ms. Dias’ licenses, which was done by Order dated September 4, 2007. A hearing was held on September 24, 2007, but Ms. Dias did not appear. On January 7, 2008 the Board issued an Order revoking Ms. Dias’ licenses. On April 26, 2008 the Board voted to grant Ms. Dias a re-hearing, which led to the instant matter be scheduled.

On May 7, 2008 the Board issued a Complaint and Notice of Re-Hearing in which it alleged that Ms. Dias had submitted to her employer a letter that was purportedly signed by Dr. Michael Yanish but was not written by Dr. Yanish and that Ms. Dias had submitted to breathalyzer tests that showed that she had alcohol in her system while at work as a radiologic technician. The Notice of Re-Hearing set the matter for 1:30 p.m. May 29, 2008 at the Office of Administrative Hearings. Ms. Dias appeared and testified on her own behalf; the Board presented the testimony of its investigator Ms. Sarah Penttinen and Sam Palmer, DDS, Chief Investigator for the Arizona Board of Dental Examiners and a licensed dentist. The Board had 3 exhibits admitted into evidence. Ms. Penttinen conducted an investigation of Ms. Dias after receiving a complaint from Ms. Kern Miller of CIGNA HealthCare of Arizona (“Cigna”). Exhibit 1 includes Ms. Penttinen’s summaries of the interviews she conducted during the investigation. Ms. Dias was licensed by the Board in 1995. A CRT designation allows the license holder to apply ionizing radiation to the entire body. The CMT designation allows the license holder to conduct mammograms. On August 13, 2007, Ms. Dias transferred to Cigna’s C.J. Harris facility from another Cigna facility. On August 16, 2007, Cigna staff reported the smell of alcohol on Ms. Dias’ breath while at work. Ms. Dias claimed the smell was caused by a dental oral rinse, chlorhexidine gluconate or perhaps because she is diabetic. Cigna placed Ms. Dias on leave and told her to return with documentation from a dentist or doctor in support of her claim. On August 20, 2007, Ms. Dias returned to work and presented a letter that purported to be from Dr. Yanish. The letter raised suspicion with the staff at Cigna and a call to Dr. Yanish’s office revealed that Dr. Yanish had not prepared or signed the letter. See Exhibit 2. At the hearing, Ms. Dias admitted that the letter was a forgery that she prepared. According to Ms. Dias, she could not contact her doctor and was in a panic mode because she could not work without the letter. On August 27, 2007, when Ms. Penttinen spoke with Ms. Dias by telephone, Ms. Dias told Ms. Penttinen that the letter from Dr. Yanish had been sent to her by mail. See Exhibit 1. On August 22, 2007, Cigna staff again smelled alcohol on Ms. Dias’ breath and asked her to submit to a breathalyzer test, which was conducted at the Banner Desert Medical Center. Ms. Dias submitted to two breathalyzer tests taken at approximately 12:08 and 12:24 p.m. on August 22nd. The first test showed a blood alcohol content of 0.112 percent and the second 0.100 percent. See Exhibit 1. At hearing, Ms. Dias maintained that she had not been drinking and could not account for the positive test results, although she did testify that she thought the equipment was not functioning properly because it took several attempts to get a result. According to Ms. Dias, after about 4 attempts, the technician operating the breathalyzer left the room and after the technician returned the 2 samples that were positive were obtained. According to Ms. Penttinen, Cigna personal informed her that the technician had reported that Ms. Dias was not blowing hard enough, which is why the initial attempts were not successful. At the time of Ms. Miller’s complaint, Ms. Miller reported to Ms. Penttinen that other than the smell on her breath Ms. Dias had not exhibited signs of intoxication, but Ms. Miller also reported that there had been complaints about the quality of Ms. Dias’ work. See Exhibits 1 (Ms. Penttinen’s notes) and 3 (personnel records). On August 27, 2007, CIGNA terminated Ms. Dias effective August 22, 2007. Ms. Dias testified that she has been in the radiologic technology field for years and never had a problem before this. Ms. Dias had worked with Cigna for about a year and a half and never had a problem until she was transferred the C.J. Harris facility and she speculates that Cigna was trying to push people out. While at Cigna, Ms. Dias conducted over 2000 mammograms and was the x-ray technician for over 1000 patients. Ms. Dias took issue with some of the complaints listed in her personnel filed and noted that the number of complaints was small when compared to the number of procedures she had conducted. Ms. Dias admits that she made a mistake when she falsified the letter from Dr. Yanish. According to Ms. Dias, she has not had a drink in months and is in counseling for past alcohol problems. Ms. Penttinen testified that she had attempted to verify Ms. Dias’ claim that she was in counseling but was unable to do so. Dr. Sam Palmer testified that although chlorhexidine gluconate does have alcohol, it would not account for the positive breathalyzer results. To affect a breathalyzer test the chlorhexidine gluconate would need to be taken right before a test and within 15 minutes the effect would have worn off. According to Dr. Palmer, chlorhexidine gluconate is flavored with peppermint oil. The Board requested that Ms. Dias’ license be revoked.

CONCLUSIONS OF LAW The Board bears the burden of persuasion. A.R.S. § 41-1092.07(G)(2). The burden of proof on all issues is that of a preponderance of evidence. A.A.C. R2-19-119. A preponderance of the evidence is “[e]vidence 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). The Board alleged that Ms. Dias violated A.R.S. § 32-2821(A)(7) (unethical conduct) by violating A.R.S. § 32-2801(17)(b) (use of alcohol to the extent it affects ability to practice, A.R.S. § 32-2801(17)(k) (knowingly making false or fraudulent statement in connection with the practice of radiologic technology) and A.R.S. § 32-2801(17)(m) (conduct that is a danger to the public). The Board has met the burden of persuasion. Ms. Dias admits that she falsified a letter from Dr. Yanish and submitted that letter to Cigna, which constitutes a violation of A.R.S. § 32- 2801(17)(k). During the investigation, Ms. Dias also provided false statements to Ms. Penttinen about the letter, which constitutes a separate violation of A.R.S. § 32-2801(17)(k). The preponderance of the evidence shows that on August 22, 2007, the Respondent was under the influence of alcohol while performing her duties. Although Ms. Dias disputes this, she offers no credible evidence to account for the positive breathalyzer results. The breathalyzer results showed that Ms. Dias was impaired to the extent that she would be unfit to drive, which is sufficient to show a violation under A.R.S. §32-2801(17)(b) and (m). Because the Board had proven by a preponderance of the evidence the allegations set forth in the Complaint and Notice of Re-Hearing and, considering the nature of the violations, Ms. Dias appeal should be dismissed and Ms. Dias’ license numbers CRT-6456 and CMT-1579 should be revoked. RECOMMENDED ORDER IT IS ORDERED that Ms. Dias’ license numbers CRT-6456 and CMT-1579 are revoked. Done this day, June 13, 2008

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Shanna Farish, Executive Director Medical Radiologic Technology Board of Examiners ATTN: Sarah Penttinen 4814 S. 40th St. Phoenix, Arizona 85040-2940

By ___________________________ -----------------------

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