ALJDEC decisions subject to certification as final

07A-10424-MDX · Arizona Medical Board · 2007-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 26, 2007 at 9:00 a.m. APPEARANCES: Respondent Thomas J. Grade, M.D. did not appear; the Arizona Medical Board (“the Board”) appeared through Dean E. Brekke, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Based on the entire record and Respondent’s failure to appear for the duly noticed hearing, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Board regarding whether cause exists to sanction Respondent’s license to practice allopathic medicine in the State of Arizona. FINDINGS OF FACT 1. Respondent is the holder of License No. 10424 for the practice of allopathic medicine in the State of Arizona. 2. On June 22, 1991, Respondent and the Board entered into an agreement in which Respondent agreed that, among other things, he would participate in the Monitored Aftercare Treatment Program, as well as a 12-step recovery program for substance abuse that his treating therapist determined to be appropriate, that he would abstain completely from the consumption of alcoholic beverages, that he would submit to random biological fluid testing at the Board’s request, that he would maintain a log of any medications and make the log available to the Board upon request, that he would submit to mental, physical, or medical competency examinations as directed by the Board, and that he would appear in person before the Board for interviews upon request. 3. On October 16, 1993, The Board determined that Respondent had been successfully rehabilitated and terminated the June 22, 1991 monitoring agreement. 4. The Board summarily restricted Respondent’s license on December 8, 2005. The events leading to the December 2005 restriction and the Board’s action summarily restricting Respondent’s license are not at issue in this matter. 5. On April 26, 2007, the Board received a report from a confidential informant that Respondent had been arrested on April 25, 2007 for domestic violence/assault and that alcohol was involved in the incident leading to his arrest. 6. The Board obtained Gilbert Police Department Incident/Investigation Report for Case No. 07-[number redacted]. The report indicated that Respondent’s wife called police on April 25, 2007 at 6:04 p.m., after he pushed her. The alleged assault had occurred during an attempted intervention in his drug and alcohol abuse by his wife, her daughter, Respondent’s brother, and two other people at Respondent and his wife’s home at 818 E. Juanita Avenue in Gilbert, Arizona 85234. 7. The police report indicated further that Respondent refused to respond to officers’ attempts to establish communication and barricaded himself in a room in the basement. Police officers eventually had to break down the door and subdued Respondent with a Taser gun so they could handcuff and arrest him. The police report did not mention anything about Respondent being impaired or under the influence of any substance. 8. Police called the Town of Gilbert Fire Department Emergency Medical Services personnel. Report No. 07-29264 indicates that Respondent admitted to paramedics that had had four ounces of Brandy throughout the day and that he refused to go to the hospital. 9. On April 27, 2007, Kathleen Muller of the Board’s Physician Health Program attempted to call Respondent at his home telephone number. She received the message on the recorder that the “memory was full.” Ms. Muller called Respondent’s home number several hours later and spoke to his wife, who told him that Respondent did not live at the residence “at that moment” and provided an alternate contact number for Respondent. 10. On April 27, 2007, Ms. Muller called Respondent on the alternate telephone number and left the message that he was required to come to the Board’s offices that afternoon at 3:00 p.m. for an interview regarding his arrest. 11. On April 27, 2007, Ms. Muller sent a letter to Respondent at his address of record, his home address of 814 E. Juanita, Gilbert, Arizona 85234. Ms. Muller informed him that the Board had opened an investigation into his possible statutory violations in the April 25, 2007 domestic violence incident and had requested that he provide a narrative response to the allegations of domestic violence/assault and substance abuse no later than May 4, 2007. 12. On April 27, 2007, Ms. Muller sent a second letter to Respondent, requesting him to meet with the Board on that same date at 3:00 p.m. to discuss the allegations of domestic violence/assault and substance abuse. Ms. Muller attached to her letter the Board’s April 27, 2007 order, commanding Respondent to appear at its offices on Friday, April 27, 2007 at 3:00 p.m. 13. On April 30 and May 2, 2007, Ms. Muller left telephone messages for Respondent at his home and the alternative number, asking him to contact Board staff immediately. 14. On May 2, 2007, the Board entered an interim order for inpatient and evaluation/treatment, which required Respondent to undergo an inpatient evaluation at the Betty Ford Center within fourteen days. The Board mailed the order to Respondent at his address of record, his home address in Gilbert. 15. On May 4, 2007, Respondent called Board staff. Ms. Muller described the telephone call in her report as follows: He stated that he just received the April 27, 2007 letter which requested that he appear at the Board for an interview. Staff told Dr. Grade that on May 2, 2007 an Interim Order for Inpatient Evaluation was mailed to his home. He stated that he was unable to retrieve his mail from his home as there was a restraining order, and that he was in Northern Arizona living out of his car. Dr. Grade then stated that he did not understand why he needed to attend an inpatient evaluation when his arrest did not involve alcohol. Staff attempted to get Dr. Grade to go to a local Kinko’s where a copy of the Interim Order could be faxed to him. Dr. Grade stated that he was not going to go to a Kinko’s, nor was he going to undergo an inpatient evaluation. He further stated that he did not care if he ever practiced medicine in the State of Arizona again. Board staff asked Dr. Grade if he would like to surrender his license. He stated that he needed to seek legal counsel to answer that question and requested that he be allowed to call back on Monday. Dr. Grade then hung up, ending the conversation.

16. On May 7 and May 15, 2007, Ms. Muller left messages on Respondent’s alternative telephone number, asking him to contact her as soon as possible. Respondent did not respond to these messages. He did not undergo an inpatient evaluation. He did not provide any written response to the allegations of domestic violence/assault and substance abuse. 17. On May 16, 2007, Ms. Muller on behalf of the Board sent a letter to Respondent at his home address of record, 818 E. Juanita in Gilbert, Arizona 85234. Ms. Muller informed Respondent that the Board was concerned about his possible statutory violations in violating Board orders by failing to appear at the April 27, 2007 Board meeting for an investigational interview and by failing to obtain an inpatient evaluation, in addition to possible statutory violations for the domestic violence/assault incident and substance abuse. Ms. Muller asked Respondent to respond to the additional possible violations no later than May 18, 2007. 18. On May 16, 2007, Ms. Muller on behalf of the Board send a second letter to Respondent at his home address of record, informing him that the Board would be considering a summary action against his license at its meeting on May 18, 2007 at 9:45 a.m. 19. On May 17, 2007, Ms. Muller contacted Respondent by telephone. She recorded most of their ten- to fifteen-minute conversation and the Board had the transcript of the conversation admitted into evidence at the hearing. Respondent said he was “in hiding” on the east side of Phoenix with two bodyguards. Respondent said he “was just about killed in the county lockup,” where he had been “tasered repeatedly.” When he was released from jail, his “heart rate was 200.” Afterwards, he had suffered a heart attack. 20. Respondent also told Ms. Muller that the April 25, 2007 domestic violence/ assault incident had occurred during “an organized sneak attack” perpetrated by his wife and her professional friends, after he had served her with divorce papers. At the time, he had been treating a patient in his daughter’s bedroom. Respondent repeatedly denied that he was under the influence of alcohol during the April 25, 2007 incident, but said nothing about whether he was under the influence of any drug. 21. In the May 17, 2007 conversation, Respondent finally provided Ms. Muller with the alternative address of 461 W. Apache Trail, No. 94, Apache Junction, 85220. He then hung up. 22. Respondent did not appear at the Board’s May 18, 2007 meeting. After having considered Ms. Muller’s report and testimony, the Board voted to summarily suspend Respondent’s license based on the facts that its investigation had uncovered. The Board concluded that Respondent had committed unprofessional conduct under A.R.S. § 32-1401(27)(f), “Habitual intemperance in the use of alcohol or habitual substance abuse,” and under A.R.S. § 32-1401(27)(r), “Violating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director under the provisions of this chapter.” 23. The Board thereafter referred the matter to the Office of Administrative Hearings and, on May 23, 2007, issued a Notice of Hearing, setting a hearing on June 26, 2007 at 9:00 a.m. The Board sent a copy of the notice via certified mail to Respondent at the address he had provided, 461 W. Apache Trail, #94, Apache Junction, AZ 85220 and to his address of record, 818 E. Juanita Ave., Gilbert, AZ 85234-3522. The Post Office returned the signed certified mail receipts for both copies of the Notice of Hearing, indicating delivery. 24. On June 25, 2007 at 6:11 p.m., Respondent sent a facsimile to the Office of Administrative Hearings, although it was addressed to the Board’s attorney, in relevant part as follows: This letter serves to inform you that I voluntarily surrender my Arizona medical license for medical reasons. I suffered an acute herniated lumbar disc and triamcinolone prompted my alleged behavior. There is no evidence otherwise of illegal behavior. This is well documented by my medical records prior to my arrest. I still think that medically affected patients should not be sent to prison for therapy. I surrender due to my current medical conditions. Medically affected patients should be provided therapy.

25. The Administrative Law Judge provided a copy of Respondent’s letter to the Board’s attorney shortly before the scheduled hearing on June 26, 2007. After consulting his client, the Board’s attorney elected not to accept Respondent’s proffered surrender of license for medical reasons. 26. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, he neither appeared personally or through an attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence to defend his license. 27. The Board presented Ms. Muller’s testimony and had admitted into evidence ten exhibits, which established the facts set forth above. CONCLUSIONS OF LAW 1. The notice of the hearing that the Board mailed to Respondent at the address he provided and at his address of record was reasonable and he is deemed to have received notice of the hearing.[1] 2. The Board is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. This matter lies within its jurisdiction.[2] 3. The Board bears the burden of proof and must establish cause to sanction Respondent’s license by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] 4. Respondent’s history of substance abuse, which led to the 1991 consent order and his required participation in the Board’s aftercare program, the attempted intervention by his wife, brother, and friends on April 25, 2007, his confrontational behavior toward the police on that date, his refusal to comply with the Board’s order to undergo an inpatient evaluation, and his bizarre statements to Board staff in interviews would cause a reasonable person to strongly suspect that Respondent had relapsed and was again abusing alcohol or another drug. 5. But a strong suspicion is not sufficient to meet the evidentiary standard of a preponderance of the evidence, although it is sufficient to support an administrative complaint or criminal charge.[6] Nor can any adverse inference that Respondent in fact was abusing alcohol or drugs be drawn from Respondent’s failure to appear at the duly noticed hearing and testify, in contrast to the adverse inference that could have been drawn if he had appeared, been called to testify, and refused to answer questions about substance abuse.[7] 6. The Board therefore has not established by a preponderance of the evidence that Respondent committed unprofessional conduct under A.R.S. § 32-1401(27)(f) though “[h]abitual intemperance in the use of alcohol or habitual substance abuse.” 7. The Board has established that Respondent failed to appear at any time for an interview by the Board, in violation of its April 27, 2007 order, and that he failed to undergo an inpatient evaluation, in violation of its May 2, 2007 Confidential Investigative Order. The Board therefore has established that Respondent committed unprofessional conduct under A.R.S. § 32-1401(27)(r) by “[v]iolating a formal order . . . issued or entered into by the board or its executive director under this chapter.” These violations furnish cause to summarily suspend or revoke his license under A.R.S. § 32- 1451(D) and (M). 8. Respondent chose either not to return the Board’s repeated messages or to take himself out of contact with the Board. These actions, with his repeated failures to comply with the Board’s orders and bizarre, confrontational behaviors, show that he is not amenable to regulation at this time. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board affirm its May 18, 2007 order summarily suspending Respondent Thomas J. Grade, M.D.’s License No. 10424 for the practice of allopathic medicine in the State of Arizona. It is further recommended that Board at this time revoke Respondent’s license. Done this day, July 10, 2007.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of July, 2007, to: Arizona Medical Board Timothy C. Miller, Executive Director ATTN: Legal Coordinator 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________ ----------------------- [1] See A.R.S. §§ 32-1451(R); 41-1092.04.

[2] See A.R.S. § 32-1401 et seq.

[3] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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

[6] The “preponderance of the evidence” standard may be compared to the lesser evidentiary standard of “probable cause,” which requires “[a] reasonable ground to suspect that a person has committed or is committing” a proscribed act. See Black’s Law Dictionary, supra, at page 1239. “In Arizona, probable cause has been defined as ‘such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of guilt.’” State v. Emery, 131 Ariz. 493, 505-06, 642 P.2d 838, 850-51 (1982) (emphasis in original; quoting In re Dodd v. Boies, 88 Ariz. 401, 404, 357 P.2d 144, 146 (1960)).

[7] See Begay v. Arizona Dept. of Economic Security, 128 Ariz. 407, 409-10, 626 P.2d 137, 139-40 (App. 1981) (the Fifth Amendment privilege against self-incrimination in criminal proceedings in not applicable to civil actions and an administrative agency may draw and adverse inference from an assertion of the privilege).

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