ALJDEC decisions subject to certification as final

08A-25871-MDX · Arizona Medical Board · 2008-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 20, 2008 at 9:00 a.m. APPEARANCES: The Arizona Medical Board appeared through Philip A. Overcash, Esq., Kutak Rock, LLP; Respondent John C. Morgan appeared through Michael R. Golder, Esq., Raup & Hergenroether, PLLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedure 1. The Arizona Medical Board (“the Board”) is the duly constituted authority for the regulation and control of the practice of allopathic medicine in the State of Arizona. 2. The Board issued to Respondent John C. Morgan, MD License No. 25871 for the practice of allopathic medicine in the State of Arizona. 3. On April 10, 2008, the Board issued a Complaint and Notice of Hearing in this matter, which recited factual allegations in Case Nos. MD-05-1180A and MD-07-0195A. As a result of these factual allegations, the Board charged Dr. Morgan with having committed unprofessional conduct as defined by A.R.S. § 32- 1401(27)(e), (q), (t), (jj), (ll), and (r). 4. Pursuant to the Notice of Hearing, a hearing was held on May 20, 2008. The Board presented the testimony of its Chief Medical Consultant, Kelly Sems, MD, former Senior Medical Investigator Meghan B. Hinckley, and Compliance Officer Sue Dana and had admitted into evidence eleven exhibits. 5. Dr. Morgan did not personally appear or testify on his own behalf. His attorney appeared on his behalf and cross- examined the Board’s witnesses. 6. During the hearing, the Board stipulated to withdraw the charged violation of unprofessional conduct as defined by A.R.S. § 32-1401(27)(ll). Case No. MD-05-1180a Background 7. On November 29, 2005, the daughter of Dr. Morgan’s former patient M.C. submitted a written complaint to the Board regarding the care that Dr. Morgan had rendered to her mother. According to the complaint, Dr. Morgan had caused M.C. to suffer a gastrointestinal (“GI”) bleed by prescribing Aleve twice a day on September 22, 2005 as a “standing order.” M.C.’s daughter also complained that another physician, Dr. Featherston, had also prescribed Aleve to M.C. As a result, M.C. had been hospitalized at John C. Lincoln Hospital. 8. Ms. Hinckley, who at that time was the Board’s Senior Medical Investigator, had subpoenas issued for M.C.’s medical records from Simply the Best, John C. Lincoln Hospital, and Dr. Morgan’s practice, House Call Family Physician. 9. Dr. Morgan also provided M.C.’s records with his responses to the complaint. 10. Dr. Sems reviewed M.C.’s records. Dr. Sems graduated from the University of Nebraska Medical center. She is a rheumatologist. 11. Dr. Sems last treated a patient in August 2005, when she was asked to consult by an attending physician. Since rheumatic diseases are systemic, she must be familiar with all body systems and side effects of drugs. Although she is not a primary care provider, she may function as a primary care provider by virtue of her training in internal medicine and treatment of systemic rheumatic diseases. 12. MC was an 87-year-old woman who had lived at Simply the Best, a group home. 13. Dr. Morgan had cared for M.C. between November 8, 2004 and September 22, 2005. 14. Included among M.C.’s records was a form from House Call Family Physician for Patient Medical Information dated July 7, 2005. House Call Family Physician was Dr. Morgan’s practice group and the form shows a facsimile header of “07/07/2005 05:03 . . . John Morgan MD Page 03.”[1] 15. On the July 7, 2005 Patient Medical Information, M.C.’s daughter disclosed that M.C. had a history of dementia, Alzheimer’s, hypertension, and chronic renal failure (“CRF”). She took 81 mg of aspirin daily. Other records indicated that M.C. suffered from osteoarthritis and Gastroesophageal Reflux Disease (“GERD”). 16. M.C. was taking 150 mg Ranitidine for her GERD. 17. On November 15, 2005, M.C. vomited blood and had melena, which means dark stools usually caused by the presence of blood. 18. As a result of these symptoms, M.C. was admitted to John C. Lincoln Hospital on November 16, 2005, where she was diagnosed with anemia secondary to a GI bleed, given blood transfusions, and discharged on November 19, 2005. 19. Among the discharge plans were to discontinue the NSAIDs that M.C. had been prescribed. After she was discharged, M.C. never regained her prior level of health and died on December 23, 2005. Evidence of Dr. Morgan’s Possible Statutory Violations 20. Dr. Sems testified that Naproxen, or Aleve, is a Non- Steroidal Anti-Inflammatory Drug, or NSAID. The dangers of prescribing an NSAID like Aleve for pain relief is that its common side effects include GI bleeding and heartburn. 21. Dr. Sems testified that NSAIDs also may decrease renal function. Decreased renal function is shown by an increase in Creatinine. 22. Dr. Sems testified that, before a physician prescribes Aleve for pain relief, he should take into account the patient’s history of CRF and use caution. He either should not prescribe the NSAID, should prescribe a reduced dose and monitor the patient’s Creatinine level, or should prescribe the NSAID for only a short time. 23. Laboratory results for M.C. dated 10/21/04 which showed a Creatinine level of 1.9, which was elevated according to the laboratory’s reference range. Dr. Sems testified that this result showed M.C.’s decreased renal function. Typically, Creatinine is between .08 and 1.5 in healthy people. 24. Dr. Sems testified that the physician also should not prescribe an NSAID to a patient diagnosed with CRF without also prescribing a prophylactic, such as a proton pump inhibitor drug, to reduce acid production in the stomach and protect against ulcers. 25. On July 18, 2005, Dr. Morgan diagnosed M.C. with right 5th metatarsal strain and prescribed Aleve to treat M.C.’s pain and inflammation. 26. A Verbal Order Form from Simply the Best for M.C. dated 7/18/05 showed that Dr. Morgan prescribed 2 tabs of Aleve b.i.d. for 10 days.[2] Dr. Morgan signed the Verbal Order Form on July 18, 2005 to approve it. 27. The Verbal Order Form also shows that D.C.’s prescriptions for Albuterol and Tylenol were discontinued. 28. Dr. Sems testified that Albuterol and Tylenol are not proton pump inhibitors. 29. The Medication Administration Record for M.C. shows that, between 7/18/05 and 7/28/05, Aleve was administered to her at 8:00 a.m. and 8:00 p.m. 30. Dr. Sems pointed out that the Medication Record for M.C. shows that Aleve was administered beginning on 7/18/05 and beginning on 9/22/05.[3] Dr. Sems pointed out that “1 x 14 days” was written above “Aleve ii b.i.d.” For all the other drugs on the Medication Record, the dosage was listed under the drug. No duration was included for any of the drugs listed on the Medication Records.[4] 31. The Verbal Order Form for Simply the Best dated 9/22/05 noted an order for “Alive ii take p.o. b.i.d.” with no duration shown.[5] Dr. Morgan signed the Verbal Order Form on 9/22/05. 32. Dr. Morgan prepared Progress Note for M.C. dated 9/22/05 showed the plan “Aleve ii bid daily x 14 days.”[6] Dr. Sems testified that this progress note was not consistent with the verbal order. 33. The Medication Administration Record for September for M.C. showed that, between 9/22/05 at 8 p.m. through the end of September 2005, she received two tablets p.o. b.i.d. of Aleve.[7] 34. The Medication Administrative Record for October showed the M.C. continued to receive Aleve at 8 a.m. and 8 p.m. until 10/22/05. [8] 35. Dr. Morgan never treated M.C. after September 22, 2005 and was no longer contacted about her care. 36. On 10/23/05, Dr. Featherston assumed M.C.’s care and prescribed two tabs of Aleve three times a day. Dr. Featherston also prescribed Prilosec, a proton pump inhibitor. 37. The Medication Administration Record for October also showed that, on 10/23/05, M.C. began receiving Aleve three times at day, at 8 a.m., 12 p.m., and 8 p.m.[9] 38. Dr. Sems testified that Dr. Morgan deviated from the standard of care by not taking into account M.C.’s risks for potential GI bleed, including her age, her history of GERD, her low dose Aspirin therapy and poor general health, when he prescribed the Aleve on September 22, 2005 without either initiating concomitant prophylactic measures or including a stop date. 39. Dr. Sems testified that she could not find any indication in M.C.’s medical records that Dr. Morgan had considered her CRF when he prescribed Aleve on September 22, 2005. In Dr. Morgan’s May 18, 2006 response to Dr. Sems’ initial report, he stated that, “[b]ased on clinical examination and information provided by the caregiver and to a very lesser extent by the patient, I was not made aware of CRF” and that “[M.C.] did not present with any history or physical findings of CRF.”[10] 40. Dr. Morgan’s response continued: On September 22, 2005, during our visit to see [M.C., M.C.’s daughter] reported that the patient continued to have pain and requested Aleve because [M.C.] did well and presented no problems, bleeding or otherwise. At that point I did order Aleve 2 BID X 14 at the caregiver’s insistence. (Exhibit 4 [his 9/22/05 Progress Note].) To my regret, I did sign an order with the omission of the X 14 on the order record at the home. I noted X14 days above the previous Aleve order on the medication list. . . . I was not given the opportunity for review or follow up on my next visit. [M.C.] was already being seen by a Vitas physician. . . . .

In retrospect, had I been aware of the CRF, I would have proceeded as indicated in my previous letter with this less than therapeutic dose anyway based on [M.C.’s daughter’s] insistence that Aleve had worked well for [M.C.] and that she wanted to be given another dose. However, I would have certainly considered adding a proton pump inhibitor, although giving this does not stop GI bleeding as we all know.[11]

41. Dr. Sems testified that Dr. Morgan’s response indicated that he did not take into account M.C.’s CRF when he prescribed Aleve to M.C., even though it was mentioned on the House Call Family Physician Patient Medical Information that M.C.’s daughter had filled out. 42. Dr. Sems testified that the records were inconsistent. It also appeared that the duration for the Aleve had been added after the fact to the Medical Record. Based on her review, she concluded that Dr. Morgan had altered the medical records. 43. On October 31, 2006, Dr. Morgan responded to the Board’s allegation of altered medical records. He stated, “I agree, [the Medication Record for M.C.] does look altered, but it is not. I never alter my notes unless it is done immediately after the notes are written, and then, ‘a mark of error’ is noted on the chart.”[12] 44. Dr. Sems admitted that some of the drugs that had been prescribed to M.C. for her hypertension would have had some healthy effect on her kidney function. CRF is an incurable disease that will kill the patient, if she does not undergo dialysis or die of another cause. 45. Dr. Sems admitted that many drugs that had been prescribed to M.C. to treat her various physical and psychiatric conditions could have had potentially severe side effects. 46. The November 19, 2005 Discharge Summary for D.C. noted that “[t]he patient is a DNR/DNI as per her daughters who are the Power of Attorneys and per her wishes she did not want an invasive or extensive diagnostic or therapeutic procedures. Since an EGD was deferred the patient was placed on PPI, Proton pump inhibitor, IV twice a day by gastroenterology.” 47. Dr. Sems testified that an EGD would have involved a scope from the stomach to the duodenum to identify the site of the bleeding. Since the EGD had been deferred, it is possible that the site of the bleeding could have been D.C.’s esophagus, which would have been unrelated to the administration of NSAIDs. 48. Dr. Sems testified that a proton pump inhibitor increases the ph level in the stomach and makes it less acidic. The renitidine that had been prescribed for D.C.’s GERD would have increased the ph level of her stomach. But it would not have been as effective as a proton pump inhibitor. 49. Dr. Sems testified that she had not seen M.C.’s death certificate and did not know whether an autopsy had been performed. She did not know the cause of M.C.’s death. 50. Dr. Sems noted that the John C. Lincoln Hospital laboratory results for M.C.’s Creatinine level were 1.4. This level was lower than when she was admitted to Simply the Best long-term care facility. M.C.’s Creatinine level may have indicated improved renal function. Dr. Sems testified that 1.4 is at the upper level of normal. 51. Dr. Sems testified that she did not know the specific diagnosis of M.C.’s kidney disease. She did not know for sure that Dr. Morgan’s prescription of an NSAID adversely affected M.C.’s kidney. 52. Dr. Sems testified that the Medication Administration Record for M.C. for July 2005, which showed “Aleve ii poBid x 10 days” beginning on July 18, 2005, did not deviate from the standard of care because it showed an acceptable duration. 53. Dr. Sems testified that the Progress Note for 9/22/05, which showed a prescription to M.C. of “Aleve ii Bid daily x 14 days” also was within the standard of care. However, a prescription of Aleve for more than 14 days without the concomitant prescription of a prophylactic would have deviated from the standard. 54. Dr. Sems admitted that the progress note was a contemporaneous record that could have been included in the chart. Dr. Sems testified, however, that she believed that the 9/22/05 Progress Note was not included in the records from Simply the Best but may have been a record that Dr. Morgan sent in. 55. Ms. Hinckley testified at the hearing that she did not know whether the 9/22/05 Progress Note had come from Simply the Best or was among the records that Dr. Morgan had provided. 56. The 9/22/05 Progress Note is the only Progress Note that was included in the selected records that the Board had admitted into evidence. 57. Dr. Sems could not provide a reason for the 9/22/05 Progress Note to have been kept outside Simply the Best. Dr. Morgan’s style of practice was unique and was to go into the nursing home or long-term care facility and render care to patients. Although the facility’s record was required to remain in the facility, Dr. Morgan’s note was not required to remain with the rest of the patient’s chart. 58. Dr. Sems agreed that the purpose of a progress note was to show the plan that the physician wanted to implement and to allow the next physician to have a record of the patient’s care. But she did not know if the Progress Note remained in the facility. 59. Dr. Sems admitted that, if the duration of Aleve on M.C.’s Medication Record was a late entry, it would have been consistent with Dr. Morgan’s Progress Note for 9/22/05. Late entries are legitimate and are usually noted and timed as late entries. 60. Dr. Sems admitted that, if Dr. Featherston had looked at the previous Medication Administration Record, he would have known the dosage, frequency, and duration of the Aleve that had been administered to M.C. Case No. MD-07-0195A 61. On January 20, 2007, Dr. Morgan accepted into a Consent Agreement in an unrelated matter, Case No. MD-06-0259A (“the Consent Agreement”), in which he agreed to be placed on probation for five years.[13] Among the terms of his probation, Dr. Morgan agreed to have a third-party female chaperone present whenever he interacted with female patients. The third-party female chaperone was required to be “a licensed female healthcare provider (i.e., physician assistant, registered nurse, licensed practical nurse) employed by [Dr. Morgan], hospital or clinic . . . .” 62. On March 1, 2007, Dr. Morgan sent an e-mail to Board staff, identifying the chaperone required by the Consent Agreement as his female office assistant, Carolyn Hughes. On March 26, 2007, Dr. Morgan provided a certificate issued by the American Association of Medical Assistants, Inc. for Ms. Hughes.[14] 63. Ms. Dana testified at the hearing that a certified medical assistant is not considered to be a licensed allied healthcare provider. 64. Ms. Dana admitted that there was no evidence that Dr. Morgan had violated any other term of the Consent Agreement, had committed any other untoward conduct, or had harmed a patient or member of the public. He had not lied about the identity of his chaperone. 65. The Board had admitted into evidence transcripts of telephone conversations between Dr. Morgan and the Board’s staff Mike Curtain on March 26 and 27, 2007.[15] During the second conversation, Dr. Morgan informed Mr. Curtain that he had run an advertisement for an RN for two months before he hired his medical assistant and had received no response. Dr. Morgan had never used an RN during the 30 years of his practice and did not believe that an RN would respond to an advertisement “that described her job position as being my babysitter.”[16] 66. Ms. Hughes had signed all of Dr. Morgan’s Progress Notes for patients seen between February 12, 2007 and March 27, 2007.[17] APPLICABLE LAW 1. A.R.S. § 32-1451(M) provides in relevant part: Any doctor of medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct . . . is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds in violation of this chapter.

2. A.R.S. § 32-1401(27) defines “unprofessional conduct” to include: (e) Failing or refusing to maintain adequate records on a patient. . . . .

(q) Any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public. . . . .

(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. . . . .

(t) Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of medicine . . . . . . . .

(jj) Knowingly making a false or misleading statement to the board or on a form required by the board or in a written correspondence, including attachments, with the board.

3. A.A.C. R4-16-603 provides in relevant part as follows: A physician commits an act of unprofessional conduct when the physician violates one or more subparagraphs of A.R.S. § 32- 1401(27). These statutory violations are referenced under the categories that follow: . . . .

2. “False Representations” include those actions or omissions that violate A.R.S. § 32-1401(27)(m), (t), (v), (aa), (bb), (jj), (mm), or (qq).

a. A one-time offense may result in either a Letter of Reprimand or a Decree of Censure, the latter penalty for serious violations. Either may include probation. . . . .

10. “Medical Records Issues” includes those actions or omissions that violate A.R.S. § 32-1401(27)(e), or (rr).

a. A one-time occurrence of a minor nature that does not depart from the standard of care may be issued an Advisory Letter.

b. Repetitive, egregious, or non-remediable offenses may result in a minimum penalty of Letter of Reprimand.

11. “Violations of Board Orders” includes those actions or omissions that violate A.R.S. § 32-1401(27)(r), or (nn).

a. A one-time offense may result in a minimum penalty of a letter of Reprimand. . . . .

18. “Departures from the Standard of Care” includes those actions or omissions that violate A.R.S. § 32-1407(27)(l), (q), or (ll).

a. Technical Errors:

i. When there has been a technical error, the Board may consider the following factors:

(1) Whether the procedure was otherwise performed within the standard of care;

(2) Whether the complication that occurred is a complication that is documented to occur when the procedure is otherwise competently performed;

(3) Whether the complication was recognized in a timely fashion and then treated appropriately;

(4) Whether the patient and/or the patient’s family was informed of the complication/ error in a timely fashion; and

5) Whether the proper informed consent was obtained from the patient prior to the procedure or surgery.

ii. A one-time technical error that answers the above questions in the affirmative may be adjudicated with an Advisory Letter to trend the specific error.

iii. A one-time technical error that does not answer the above questions in the affirmative may result in a letter of Reprimand or a Decree of Censure.

iv. Repetitive or egregious technical errors may result in a Letter of Reprimand, Decree of Censure, Probation, Suspension, or Revocation, or any combination, depending on severity, frequency, the potential for remediation, and other aggravating circumstances. . . .

CONCLUSIONS OF LAW The Board bears the burden of proof and must establish Dr. Morgan’s commission of acts of unprofessional conduct by a preponderance of the evidence.[18] Dr. Bernstein bears the burden to establish affirmative defenses by the same evidentiary standard.[19] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[20] 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.”[21] The Board has borne its burden to establish that Dr. Morgan did not comply with the terms of the Consent Agreement by having a licensed allied health care provider chaperone his patients’ office visits. This term of the Board’s order was not meaningless; it was entitled to require a chaperone who was licensed by a state agency. Dr. Morgan did not inform the Board of his difficulty in hiring a licensed health care provider, did not ask the Board to modify the Consent Agreement, and, in any event, has not established impossibility of performance of this term of the Consent Agreement. The Board therefore has established that, by failing to hire a licensed allied health care provider, Dr. Morgan committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(r). Under A.A.C. R4-16-603(11)(a), a letter of reprimand is an appropriate penalty. With respect to the issue of whether Dr. Morgan prescribed Aleve to M.C. without taking into account his CRF, his response to the Board’s investigation acknowledged that he was unaware of this diagnosis. But no unprofessional conduct would have occurred if he had also set a duration for the prescription, as he did on 7/18/05. The 9/22/05 Verbal Order form included no duration. Although the Medication Record shows “1 x 14 days” for the Aleve prescribed on 7/18/05 and 9/22/05, no duration is shown for any other medication. The 7/18/95 Verbal Order form shows that the Aleve that Dr. Morgan prescribed on that date had a 10-day duration. Moreover, the Medication Administration Record shows that M.C. was administered Aleve from 9/22/05, when Dr. Morgan signed the Verbal Order form for this amount that shows no duration, until 10/23/05, when Dr. Featherston assumed M.C.’s care and prescribed Aleve three times a day with a proton pump inhibitor. It does not appear that the nursing staff at Simply the Best was aware of Dr. Morgan’s 9/22/05 Progress Note. The Board therefore has established that Dr. Morgan prescribed Aleve to M.C. without specifying a specific duration or prescribing a prophylactic. The Board has therefore established that Dr. Morgan committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(q). It is a closer question on whether Dr. Morgan violated A.R.S. § 32- 1401(27)(t) by altering a patient record and A.R.S. § 32-1401(27)(jj) by failing to admit the alteration to the Board. Given the inconsistencies noted by Dr. Sems and the failure of Simply the Best Staff to follow the altered record, the Board has also established that Dr. Morgan altered the Medication Record by adding “1 x 14 days” to it at some point after he signed the 9/22/05 Verbal Order. With respect to the appropriate penalty, Dr. Morgan’s alteration of patient records and refusal to admit the alteration are also aggravating factors. The absence of any demonstrable harm to M.C. caused by Dr. Morgan’s prescription of Aleve to her on 9/22/05 without either a duration or prophylactic is a factor in mitigation. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board enter a decree of censure in Case No. MD-05-1180A and a Letter of Reprimand in Case No. MD-07-0195A against License No. 25871 previously issued to John C. Morgan, MD. Done this day, May 29, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] Ex. 2 at AMB/JM 0073. [2] See Ex. 2 at AMB/JM 0581. [3] See Ex. 2 at AMB/JM 0080. [4] See Ex. 2 at AMB/JM 0079, 0080. [5] See Ex. 2 at AMB/JM 0580. [6] See Ex. 2 at AMB/JM 0068. [7] See Ex. 2 at AMB/JM 0506. [8] See Ex. 2 at AMB/JM 0503. [9] See id. [10] Ex. 4 at AMB/JM 0089. [11] Ex. 4 at AMB/JM 0090. [12] Ex. 5 at AMB/JM 0111. [13] Ex. 8 (AMB/JM 0835-0850). [14] Ex. 11 at AMB/JM 0976. [15] Ex. 12 (AMB/JM 0052-0862). [16] Ex. 12 at AMB/JM 0856. [17] Ex. 13 (AMB/JM 0919-0974). [18] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [19] See A.A.C. R2-19-119(B)(2). [20] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [21] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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