ALJDEC decisions subject to certification as final

08A-2697-PAB · Arizona Medical Board · 2009-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2008 and February 2, 2009 APPEARANCES: Attorney Michael Golder for Steven King, P.A.; Assistant Attorney General Emma Mamaluy for the State ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT Steven J. King holds license number 2697 for the performance of health care tasks in Arizona. On October 22, 2008 the Arizona Board of Physician Assistants issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing on December 18, 2008. The Complaint alleges that in 2005 Mr. King committed acts of unprofessional conduct: (1) by stealing ophthalmoscopes from Banner Baywood Heart Hospital (Board Investigation Number PA-05-0012A), and (2) by writing a 30-day prescription for Vicodin, a schedule III drug, at a time when Mr. King did not have Board approval to perform health care tasks under the supervision of the patient’s physician and in that Mr. King did not have approval to prescribe controlled substances for more than 72 hours (Board Investigation Number PA-05-0034A).

The hearing was convened as scheduled on December 18, 2008 but did not conclude on that date and further hearing was held on February 2, 2009. The State presented the testimony of Investigator Elle Steger; Mr. King was represented by counsel but did not appear personally or testify at the hearing because he is out of the country. Mr. King submitted an affidavit to admission of which the Board objected. See King’s Exhibit 26. Although the affidavit was accepted into evidence it can be given very limited weight because Mr. King was not subject to cross-examination about the statements therein. Theft of Ophthalmoscopes (PA-05-0012A) On April 13, 2006 Mr. King executed a Consent Agreement for Decree of Censure and Probation in which he admitted that between January and June 2005 he stole between 12 and 15 ophthalmoscopes from Banner and sold these on the internet. See State’s Exhibit 13 (Consent Agreement); see also State’s Exhibit 40 (transcript of Examination Under Oath conducted by the Board on July 24, 2008). The Board did not accept the Consent Agreement. See King’s Exhibit 21 (Minutes from Board meeting of May 17, 2006). The Staff Investigational Review Committee (SIRC) had recommended a Decree of Censure and 1 year probation for 10 hours CME in ethics. See King’s Exhibit 14. Mr. King paid Banner $9,321.28 in restitution. See State’s Exhibit 13. Given the reported value of the ophthalmoscopes, $9,321.28 would cover the cost of 29 ophthalmoscopes, which is the number Banner could not account for when Mr. King’s thefts were discovered. Practicing Without Supervision and Vicodin Prescription (PA-05-0034A) Mr. King admits that in October 2005 he wrote a prescription for Vicodin at a time when he did not have Board approval to perform health care tasks under the supervision of the patient’s physician. See State’s Exhibit 40. In October 2005 Mr. King was working for Dr. Rodney Iancovici. According to Mr. King and Dr. Iancovici, Dr. Iancovici’s office manager was supposed to turn in the required paperwork, but did not do so in a timely manner because there was not enough money in the account to cover the expense. Once Mr. King learned of the problem he personally took the required paperwork to the Board for approval. See State’s Exhibits 40, 29 (letter from Mr. King dated March 5, 2006) and 26 (letter from Dr. Iancovici dated October 24, 2005). A physician’s assistant must receive the Board’s approval of his supervising physician before engaging in professional activity (i.e., he may not begin work based on submission of the paperwork, but must wait until he is notified of approval). Mr. King has explained that based on his work with cardiology patients, he thought that the number of Vicodin tablets was within his authority to prescribe, although he knew that it was a month’s supply and, also that he did not originally know for how long the prescription would be. See State’s Exhibits 40 and 25 (letter from Mr. King dated October 24, 2005). At the time Mr. King wrote the prescription for Vicodin, the patient had regularly been receiving 30-day prescriptions written by Dr. Iancovici. Ms. Steger testified that there was no evidence in the Board’s files to suggest that the patient suffered any harm as a result of Mr. King’s action, which information would typically be in the file had any harm occurred. SIRC recommended that Mr. King be issued an Advisory Letter for practicing while unsupervised and for writing the prescription for Vicodin. See State’s Exhibit 27. Other Evidence The Board did not accept the April 13, 2006 Consent Agreement or the SIRC recommendation with respect to the matter PA-05-0034A and instead referred the matter to the Attorney General’s Office to schedule it for hearing. See King’s Exhibits 6 (letter dated May 18, 2006) and 21 (minutes from Board’s meeting of May 17, 2006). Mr. King asserts that while these matters have been pending, he had been unable to obtain hospital privileges or work in a cardiology group and has had the scope of his practice limited. See King’s Exhibit 29 (affidavit). The Board has adopted the Arizona Medical Board’s Substantive Policy Statement 9 (SPS 9), which is an advisory policy with respect to complaints and the appropriate level of discipline. See State’s Exhibit 50. Under SPS 9, a Decree of Censure is appropriate for serious or repetitive deviations from the standard of care or the Medical Practice Act, or for serious moral or ethical lapses. See State’s Exhibit 50. Under SPS 9, Revocation is appropriate for a violation of the Medical Practice Act that involves severe moral turpitude or ethical misconduct or when the physician’s assistant is unable to safely practice and other remedial actions have failed or are unlikely to succeed. Moral turpitude usually connotes a dishonest intent. See State’s Exhibit 50. Under SPS 9, an Advisory Letter is appropriate when there is insufficient evidence to support discipline, the violation is minor, or the physician’s assistant has demonstrated compliance that mitigates the need for discipline. See State’s Exhibit 50. The State requests that Mr. King’s license be revoked. CONCLUSIONS OF LAW The Board bears the burden of persuasion. See A.R.S. § 41-1092.07(G)(2). The standard of proof is that of the preponderance of the evidence. See 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). Mr. King admits that he has committed acts unprofessional conduct as alleged, so the Board has met the burden of persuasion. Consequently, grounds exist for the Board to impose discipline against Mr. King. See A.R.S. § 32-2551. The State argues that the thefts constitute acts of moral turpitude and, because the thefts took place over the period of six months Mr. King’s actions were egregious. Theft does meet the definition of moral turpitude under SPS 9, but the Administrative Law Judge believes it is appropriate to consider these thefts as one act for purposes of discipline because the Board treated these as one act when it used the total value of restitution paid to conclude that the thefts were of sufficient value to be considered a felony and commission of a felony is the specific act of unprofessional conduct that was charged in the Complaint. Consequently, the thefts should be considered as an isolated error in judgment by Mr. King. See State’s Exhibit 50 (isolated lapses of judgment treated differently than repetitive behavior lapses). There was no evidence adduced to show that remedial measures short of revocation will not be effective in Mr. King’s case and, there was no evidence adduced to show that Mr. King is not rehabilitated or that Mr. King is a risk to steal again. Consequently, under SPS 9, revocation is too harsh a sanction. Under A.R.S. § 32-2551(J) discipline should be appropriate to protect the public health and safety. Considering the evidence presented by the State and, given that the Board has allowed Mr. King to practice for over 2 years while this matter has been pending, the ALJ does not find that revocation is necessary to protect the public. Under A.R.S. § 32-2558(B) a person whose license has been revoked may apply for reinstatement after 2 years. Consequently, Mr. King argues that because this matter has been pending so long (i.e., it was approximately 30 months between the time the Board referred the matter for hearing and the time hearing was scheduled and convened), the tribunal and the Board should consider the factors related to reinstatement of a license that has been revoked in determining the appropriate level of discipline. See 32-2551(I) (requiring the Board to “immediately initiate formal proceedings for the suspension or revocation” if it finds these sanctions to be warranted). A.R.S. § 32-2558(A) sets out 4 factors for the Board to consider with respect to a request for reinstatement of a revoked license. There is no evidence to show that Mr. King has engaged in any conduct over the last 30 months that would provide a basis for revocation under A.R.S. § 32-2551. See A.R.S. § 32-2558(A)(1). A.R.S. § 32-2558(A)(2) is not applicable to Mr. King’s case. Mr. King made restitution to Banner, the aggrieved party. See A.R.S. § 32-2558(A)(3). There is no evidence to show that the Board has determined that another standard of rehabilitation should be applied to Mr. King. See A.R.S. § 32-2558(A)(4). Consequently, Mr. King would meet the requirement for reinstatement if his license had been revoked more than 2 years ago. Mr. King also argues that the Board’s failure to hold the hearing in a timely manner has resulted in a violation of his due process rights, but he presents insufficient factual and legal support for this argument. See A.A.C. R2-19-119(B)(2). In light of the above, it is recommended that a Decree of Censure be issued and Mr. King be required to serve 1 year probation for 10 hours of CME in ethics and such additional training related to his prescribing responsibilities as the Board deems appropriate. RECOMMENDED ORDER IT IS ORDERED that a Decree of Censure be issued and Mr. King be required to serve 1 year probation for 10 hours of CME in ethics and such additional training related to his prescribing responsibilities as the Board deems appropriate. Done this day, February 26, 2009

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

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

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

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