ALJDEC decisions subject to certification as final

08A-10234-MDX · Arizona Medical Board · 2008-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 2008. APPEARANCES: The Arizona Medical Board was represented by its attorney, Michael W. Sillyman, Esq. Mahendra Nath, M.D. appeared personally. 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 (“Arizona Board”) is the authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. 2. Mahendra Nath, M.D. (“Respondent”) is the holder of License No. 10234 issued by the Arizona Board for the practice of allopathic medicine in Arizona. 3. Respondent also possesses Physician’s and Surgeon’s Certificate No. A 32279 issued by the Medical Board of California (“California Board”). 4. On or about June 3, 2004, Respondent was named as the Defendant in a Misdemeanor Complaint in Case No. 04913593-0 before the Superior Court of California, County of Fresno, Central Division (“Superior Court”). In the Misdemeanor Complaint, Respondent was charged with eight criminal counts of Sexual Battery against six female patients. 5. On or about February 8, 2005, Respondent entered a plea of No Contest to amended Counts 6 and 7 of the Amended Misdemeanor Complaint. Those Counts were amended to the misdemeanor crime of Battery in violation of Penal Code Section 242. The remaining counts were dismissed. 6. Penal Code Section 242 defines the crime of Battery as follows: “A battery is any willful and unlawful use of force or violence upon the person of another.” 7. In his no contest plea, Respondent stipulated to the factual basis for Counts 6 and 7, as amended, based upon the Court’s reading of the police reports. 8. The Superior Court sentenced Respondent to 3 years suspended sentence, years probation, and a fine plus costs. The Superior Court also ordered that Respondent “not operate in medical procedures w/out 3rd party [and] to follow any procedures ordered by medical board.” 9. On or about December 8, 2005, Arizona Board staff received a Disciplinary Alert Report concerning Respondent. The report advised that the California Board had placed Respondent’s California medical license on probation, subject to terms and conditions of probation. 10. The California Board’s Stipulated Settlement and Disciplinary Order found Respondent guilty of gross negligence and sexual conduct as a result of his misdemeanor criminal convictions for his criminal activity conducted while practicing medicine on the six female patients. The California Board’s Decision became effective on December 19, 2005. 11. The California Board issued a Disciplinary Order which revoked Respondent’s California medical license, but stayed the revocation and placed Respondent on probation for seven years, subject specific terms and conditions of probation set forth in the Disciplinary Order. 12. The California Board ordered that Respondent be prohibited from treating patients during his probation. 13. On December 8, 2005, the Arizona Board initiated an investigation of Respondent. 14. On or about December 16, 2005, the Arizona Board and Respondent entered into an Interim Consent Agreement for Practice Restriction in Case No. MD-05-1208A (“Interim Consent Agreement”). The Interim Consent Agreement ordered, among other things, that “Respondent shall not practice in clinical medicine or any medicine involving direct patient care and is prohibited from prescribing any form of treatment including prescription medications until Respondent applies to the Board and receives permission to do so.” 15. In the Interim Consent Agreement, Respondent did not admit to the alleged misconduct involving his patients. 16. On or about December 20, 2005, Respondent wrote a letter to Lisa Thornton, the Arizona Board’s lead investigator in this matter. Respondent explained the actions taken by the California Board against his California license. 17. In his letter, Respondent made the following statement: I have not admitted to a sexual misconduct since there wasn’t any. I plead no contest to a simple battery because of emotional stress for my family and the prohibitive cost of litigation. Apart from the original allegations two years ago there have been no further allegations inspite [sic] of newspaper articles on three different occasions while I continued to practice.

18. Despite his voluntarily entering into the settlement agreement with the California Board, Respondent’s letter to Ms. Thornton also made the following statement:

The California Medical Board order is extremely restrictive and my probation monitor was in disbelief that such a hard action has been taken. I have not been able to make a living with conditions imposed. It is an extreme financial hardship. I have to support my two college going [sic] children.

I urge you to kindly take a sympathetic view of my case and allow me probation whereby I can work and support my family.

19. On or about July 18, 2006, Ms. Thornton issued an Investigative Report which discussed her investigation of Respondent. 20. By letter dated August 1, 2006 to Ms. Thornton, Respondent responded to the Arizona Board’s allegations against him. Respondent wrote that “the California Medical Board has taken a harsh punitive disciplinary action” against him. He denied any sexual misconduct and claimed that “a criminal case was instituted against me by a zealous district attorney.” 21. Respondent acknowledged his completion of the Physician Assessment and Clinical Evaluation (“PACE”) and was aware of the boundary issues. 22. Respondent concluded his letter by requesting that the Arizona Board “take a decision independent of the Medical Board of California which has been unusually harsh and punitive.” 23. On or about August 23, 2006, the Arizona Board’s Staff Investigational Review Committee (“SIRC”) reviewed Respondent’s case. The SIRC concluded that “there was sufficient evidence in the file to show unprofessional conduct and all committee members were in agreement with the recommendation for Revocation based on the action taken by the California Medical Board for the unprofessional conduct as identified.” 24. On or about October 23, 2006, the Arizona Board received a letter from Respondent to the Arizona Board’s Chair, Robert P. Goldfarb, M.D. Respondent again reiterated his view that “the California Board has been excessively punitive.” He went on to say that the proposed revocation of his Arizona medical license “is extremely punitive…and is far beyond California Board’s actions which have at least allowed me to continue my license.” Respondent requested that the Arizona Board issued a stayed revocation of his Arizona license. 25. Respondent claims that his misdemeanor criminal convictions have been set aside. However, Respondent failed to present any credible documentary evidence to support that position. 26. Respondent did complete over 400 hours of CME.

CONCLUSIONS OF LAW 1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G) (2), the Board has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1401(27)(d), as alleged in the Complaint and Notice of Hearing for Revocation of Medical License. Respondent did enter a No Contest plea to two misdemeanor counts of Battery. However, the Board failed to establish that Battery is a crime of moral turpitude, which is an element necessary to prove unprofessional conduct under the statute. 4. Respondent did violate the provisions of A.R.S. § 32-1401(27)(o), as alleged in the Complaint and Notice of Hearing for Revocation of Medical License. This statutory violation was addressed in the Interim Consent Agreement. There is insufficient evidence to support the imposition of revocation for that violation, especially since Respondent has been restricted from practicing medicine as stipulated by the parties in the Interim Consent Agreement. 5. The terms and restrictions set forth in the Interim Consent Agreement shall remain in effect “until Respondent applies to the Board and receives permission to do so.” Respondent has not made such an application to the Board.

RECOMMENDED ORDER Complaint No. 08A-10234-MDX shall be dismissed on the effective date of the Order entered in this matter. The Interim Consent Agreement shall remain in full force and effect. Done this day, October 14, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Lisa Wynn, Executive Director Arizona Medical Board 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________

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