ALJDEC decisions subject to certification as final

08A-20232-MDX · Arizona Medical Board · 2008-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 23, 2008 APPEARANCES: Bruce J. Bryan, M.D. appeared on his own behalf; Assistant Attorney General Dean E. Brekke appeared for the Arizona Medical Board ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The Arizona Medical Board brought a Complaint against Dr. Bruce J. Bryan. The Board alleges that Dr. Bryan violated A.R.S. §§ 32-1401(27)(a) and (27)(d) and requests that his license be revoked. Dr. Bryan acknowledges that he violated these provisions and accepts that discipline is appropriate, but he requests the Board to impose a lesser penalty. FINDINGS OF FACT The Arizona Medical Board (“Board”) is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. Bruce J. Bryan, M.D. is the holder of License No. 20232 issued by the Board for the practice of allopathic medicine in Arizona. Dr. Bryan is a board certified surgeon. Dr. Bryan pleaded guilty to, and was convicted of, Making a Hoax Threat (18 U.S.C. 1038(a)(1)(A)) and Sending Threatening Communication through the Mail (18 U.S.C. 876(C)). See Exhibit 1A (Judgment, United States District Court for the Southern District of New York, November 26, 2006).

On November 27, 2006, Dr. Bryan reported to the Board that he had been convicted of a felony. Consequently, the Board opened case number MD-06- 1006A. On May 16, 2008 the Board issued a Complainant and Notice of Hearing setting this matter for hearing at 9:00 a.m. July 23, 2008. The Board alleges that Dr. Bryan violated A.R.S. §§ 32-1401(27)(a) and (27)(d) and requests that his license be revoked. There is no dispute that Dr. Bryan violated these provisions and Dr. Bryan accepts that discipline is appropriate, but he requests the Board to impose a lesser penalty. Dr. Bryan holds a patent on 6 genes that he cloned from luminescent deep- sea marine life. These genes form the basis for a product that can be injected into a patient to enable the surgeon to more clearly see the target of an operation. For example, the product allows tumors to be seen directly; it can be injected into the coronary artery to help prevent mishap; or it can be used in a laparoscopic cholecystectomy to help distinguish between the bile duct and the cystic duct. Dr. Bryan invested several hundred thousand dollars in the development and patenting of the product. According to Dr. Bryan, the laboratory that assisted in the cloning began wrongfully marketing his product, but the authorities in California, where the lab is based, would not help him. Subsequently, he received a letter that purported to be from the United States Patent and Trademark Office, but, according to Dr. Bryan, was actually a fraud. Dr. Bryan believed that his hard work was going to be destroyed and in anger he took the action that led to his convictions. Specifically, Dr. Bryan mailed an envelope containing salt to the party that he thought was a threat to his patent rights. The envelope had Dr. Bryan’s name, address and telephone number on it and he thought that the receiving party would contact him on receipt. Instead the hazmat team was called out and he was subsequently arrested. Prior to sending the salt, Dr. Bryan asked at the local post office whether or not his actions would be legal and he was told that there was no law against it. He now understands that he should not have relied on that advice. Dr. Bryan provided credible testimony that he is regretful for his actions and he acknowledged that what he did was wrong. Dr. Bryan analogized his actions to those of the patriots at the Boston Tea Party in that he acted to protect other inventors. According to Dr. Bryan, he was acting out of a sense of duty to help others just as he recently helped an accident victim he saw on the road. In the past, Dr. Bryan provided much his service for free, including providing free care to disadvantaged people in other parts of the world one month per year. Dr. Bryan lives in a small town and believes that the loss of his license will be to the detriment of the residents of that town and to others that might receive his services for free. Dr. Bryan was not aware that he was required to report to the Board that he had been charged with a felony within 10 days of those charges. The Board presented only one witness, Senior Medical Investigator Mr. Ron Skon. Mr. Skon’s testimony was of limited independent weight because it involves facts that are not in dispute and did not include any evaluation of the appropriate penalty. Five exhibits were entered into evidence (Exhibits 1 – 4, and 1A). CONCLUSIONS OF LAW The Board has jurisdiction over Respondent and the subject matter in this case. The Board has the burden of persuasion. A.R.S. § 41-1092.07(G)(2). The burden of proof on all issues that of the preponderance of the evidence. A.A.C. R2-19-119(A). 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 alleges that Dr. Bryan violated A.R.S. §§ 32-1401(27)(a) and (27)(d) and requests that his license be revoked. There is no dispute that Dr. Bryan violated these provisions, which violations constitute unprofessional conduct, and the appropriate measure of discipline is the only issue in dispute. Based on his unprofessional conduct, Dr. Bryan is subject to censure, probation suspension of his license, revocation of his license, or any combination of these. See A.R.S. § 32-1451(M). The Board presents no evidence of, and does not argue that there exist aggravating factors; the record shows several factors in mitigation. See A.A.C. R4-16-604 and R4-16-605. The Board offered no evidence related to Dr. Bryan’s past disciplinary history and consequently, the Administrative Law Judge presumes that Dr. Bryan has been subject to no prior disciplinary or non-disciplinary actions, which is a factor in mitigation. See A.A.C. R4-16-605(1); A.R.S. § 32-1451(U) (the Board “shall” consider past disciplinary history in its assessment of an appropriate penalty once a violation has been identified). The preponderance of evidence shows that Dr. Bryan acted out of anger and his professed motive was to help other inventors. But Dr. Bryan’s anger was based on his belief that his hard work would be destroyed, which does suggest some element of selfishness. The ALJ finds that the facts are not sufficiently established to conclude that Dr. Bryan’s motive should be considered a mitigating factor. See A.A.C. R4-16-605(2). Dr. Bryan included his name, address and telephone number on the envelope he mailed in the belief that this information would cause the recipient to contact him. The inclusion of this information and Dr. Bryan’s guilty plea can be considered as a timely good faith effort to rectify the consequences of his misconduct and interim rehabilitation, which are factors in mitigation. See A.A.C. R4-16-605(3) and (4). Dr. Bryan committed his crimes on April 13, 2005. See Exhibit 1A. This was over three years ago, the passage of time is sufficient to be considered a mitigating factor. See A.A.C. R4-16-605(5). The Board argues that revocation is appropriate because Dr. Bryan’s convictions were the result of bad judgment which raises questions in all aspects of patient care for a surgeon. Revocation is appropriate for physicians who cannot be, or refuse to be remediated, and/or those who demonstrate a repetitive pattern of errors that endanger the public and/or those who engage in egregious violations of the Medical Practice Act. See Board Substantive Policy Statement (“SPS 9”).[1] The Board adduced no evidence to show that Dr. Bryan’s actions will endanger the public or that he is unable to provide appropriate patient care. Probation is designed to provide the Board and the public with a mechanism for monitoring a physician's continuing practice to assure that the issues of concern are rectified and are not repetitive. See SPS 9. The Board adduced no evidence to show and, did not argue that probation or a restriction on Dr. Bryan’s scope of practice would not be sufficient to protect the public health and safety. Dr. Bryan’s violations, although serious, appear to be the product of an isolated instance of bad judgment and there are mitigating factors that weigh toward probation rather than revocation. Discipline is appropriate, but it is recommended that Dr. Bryan be placed on probation for two years subject to such terms and conditions as the Board finds are appropriate to ensure that Dr. Bryan’s continued practice of medicine does not endanger the public. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the Order entered in this matter, Dr. Bryan is placed on probation for two years subject to such terms and conditions that the Board deems appropriate. IT IS FURTHER ORDERED that if the Administrative Law Judge Decision in this matter is certified by the Director of the Office of Administrative Hearings, then the charges set forth in Complaint 08A-20232-MDX (Case No. MD-06-1006A) are dismissed on the effective date of the Order entered in this matter. Done this day, August 11, 2008

______________________________________ Thomas Shedden Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Neither party made reference to SPS 9 (Explanation of Board Actions and Overview of Complaint Categories), but the ALJ takes administrative notice of its policies, which are advisory in nature.

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

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