ALJDEC decisions subject to certification as final

11A-14927-MDX · Arizona Medical Board · 2012-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5 and 6, 2011 APPEARANCES: The Arizona Medical Board was represented by Assistant Attorney General Ann Froedge. Richard G. Bottiglione, M.D., appeared personally and was represented by his attorney, Charles E. Buri, Esq. 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 (“Board”) is the authority for the regulation and control of the practice of allopathic medicine in the State of Arizona. 2. Richard G. Bottiglione, M.D. (“Respondent”) is the holder of License No. 14927 for the practice of allopathic medicine in Arizona. 3. Respondent practices dermatology and dermatology surgery. He has been board-certified in dermatology since 1978. 4. J.R. moved from South Africa to Arizona in 1998. J.R. was an architect and town planner in South Africa. 5. J.R. was first seen by Respondent on March 27, 2003, with keratotic, eczematous lesions on his left cheek and left leg. J.R. was 69 years old at the time. J.R. was diagnosed with squamous cell carcinoma. On April 10, 2003, Respondent performed Mohs micrographic surgery (“Mohs surgery”) to treat J.R. 6. On October 14, 2010, J.R. presented to Respondent with a lesion on his scalp measuring 3.5 centimeters. J.R. was 77 years old at the time. Respondent biopsied the lesion by shaving a portion of the tissue and sent the tissue to an outside laboratory. The tissue was diagnosed as “moderate to poorly differentiated squamous cell carcinoma.” 7. A poorly differentiated squamous cell carcinoma is aggressive with a greater chance of recurrence and metastasis. 8. Respondent recommended to J.R. that the lesion be excised using Mohs surgery. 9. Mohs surgery was developed by Frederic E. Mohs, M.D. At the hearing, Respondent described Mohs surgery as “when the doctor acts as the pathologist and the surgeon together for the purpose of excising the skin cancer, with the ideal goal of being able to clear it microscopically whenever possible.” 10. J.R. signed a “Consent to Cancer Surgery” for surgery to be performed by Respondent on October 28, 2010. 11. On October 28, 2010, Respondent performed Mohs surgery on J.R.’s lesion. During stage 1 of the Mohs surgery, the slides of the removed tissue were positive for squamous cell carcinoma. 12. After he saw the squamous cell carcinoma in the stage 1 slides, Respondent informed J.R. that there was still cancer and that Respondent had to perform another resection. 13. Respondent continued with the Mohs surgery until hitting bone. Respondent testified that the stage 2 slides revealed that “half the slides had on level 1 some squamous cell.” The outer edges of the surgical field were all negative. 14. Respondent determined that he could not perform a bone section because it requires a very specialized technique that Respondent could not perform. Respondent scraped the bone and felt it was clear. Respondent visually observed the bone and did not see any pitting. The bone was not soft or brittle. Respondent opined that the bone did not have any cancer, and he called it a clear margin. 15. Respondent decided that he would continue to observe the bone over time. Respondent’s decision was based on several factors. J.R. was years old and not in good health. Respondent wanted to give J.R. “a chance to recover from this surgery, because he was pretty worn out.” Respondent empathized with J.R. because at the time, Respondent himself was going through bladder squamous cell carcinoma and understood the benefits of recovering from surgery. 16. Respondent explained to J.R. and his wife that Respondent would continue to watch the bone. 17. Respondent repaired the wound using a partial construction with a partially closed flap. Respondent testified that he did not close the entire wound using a flap because he was only able to “partially close it easily,” and he wanted to continue to observe the area. 18. J.R. returned to Respondent for post-operative follow-up examinations on October 29, 2010, November 1, 2010, November 2, 2010, and November 4, 2010. J.R. had no complaints, and the surgical site appeared to be healing. 19. On November 9, 2010, Respondent removed half of J.R.’s sutures. The remaining sutures were removed on November 23, 2010. 20. On December 2, 2010, J.R. complained to Respondent about a problem location on the dorsum of his nose that had been present for five years. Examination revealed a crusted 1 cm lesion. A biopsy was performed. The pathologic diagnosis was squamous cell carcinoma in situ. Respondent later advised J.R. to return for electrodessication of the lesion on his nose. 21. On January 3, 2011, Respondent saw J.R. and noted that the occiput was healing as expected. 22. On January 10, 2011, J.R.’s wife called Respondent to report that J.R. was complaining of lymph node swelling and discomfort in his neck. Respondent prescribed Ciproflaxin and Prednisone for the condition. Respondent recommended that J.R. see his primary care physician. 23. J.R. saw Gerald Asin, M.D., who referred J.R. to Samuel S. Bailey, M.D. 24. On January 20, 2011, J.R. saw Dr. Bailey. Upon examination, Dr. Bailey performed a biopsy of a growth at the periphery of Respondent’s prior surgical site and a needle aspiration of the neck lesion. The biopsies revealed squamous cell carcinoma. 25. On February 15, 2011, Dr. Bailey took J.R. to surgery at Scottsdale Healthcare Shea, and he excised the malignancy of the scalp and the deep neck lymph node in the right occipital neck. 26. On March 14, 2011, the Board received a written complaint from J.R. and A.R. against Respondent concerning Respondent’s treatment of J.R. for squamous cell carcinoma. The Board designated the complaint as Case No. MD-11-0390A. 27. After investigating the complaint, the Board issued a Complaint and Notice of Hearing (“Complaint”) charging Respondent with acts of unprofessional conduct in his treatment of J.R. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 28. After receiving the complaint, the Board assigned the matter to its assigned medical consultant, Scott Dale, M.D., for review. Dr. Dale is a board-certified dermatologist and certified Mohs surgeon who practices in Flagstaff, Arizona. 29. On June 1, 2011, Dr. Dale prepared his “Medical Consultant Report and Summary” in which he opined that Respondent deviated from the standard of care by “Inadequate performance of procedure.” However, Dr. Dale further opined that no deviation of the standard of care occurred with respect to the allegation of “Inadequate follow up care following Mohs surgery” by Respondent. At hearing, Dr. Dale’s testimony was consistent with his report. 30. Paragraph 9 of the Complaint alleges that “[t]he standard of care for Mohs micrographic surgery requires a physician to surgically remove a skin cancer confirmed by microscopic exam of the entire surgical margin of excised tissue to ensure the complete removal of the malignant tissue.” The Board alleges that Respondent violated that standard of care. 31. At hearing, Robert Bloom, M.D., testified for Respondent. Dr. Bloom practices dermatology, surgical dermatology, and Mohs surgery. 32. After completing his residency program, Dr. Bloom completed a one-year fellowship with Dr. Mohs. In addition, Dr. Bloom was Dr. Mohs’ first fellow. 33. In addition to his experience as a Mohs surgeon, Dr. Bloom has extensive experience teaching residents performing Mohs surgery and supervising Mohs surgeons. 34. Dr. Bloom testified that it is not the standard of care for Mohs micrographic surgery for a physician to surgically remove a skin cancer confirmed by microscopic exam of the entire surgical margin of excised tissue to ensure the complete removal of the malignant tissue. Dr. Bloom explained that there are situations where the entire tumor cannot be removed. He further explained that there are also “situations where the frozen sections can have artificial components that render them not reflective of the defect created.” 35. Dr. Bloom opined that the exercise of clinical judgment is an important part of Mohs surgery. For example, a Mohs surgeon exercises clinical judgment in evaluating where to cut and how much to cut. 36. Dr. Bloom testified that the standard of care does not require a Mohs surgeon to completely remove all cancer because of the nature of cancer. 37. Dr. Bloom stated that the standard of care for Mohs surgery allows the surgeon to visually examine the bone and determine on the basis of his visual examination whether the bone is cancer-free. 38. The weight of credible evidence established that Respondent met the standard of care for a Mohs surgeon when he visually examined J.R.’s bone and exercised his clinical judgment that the bone was cancer- free. 39. The Board further alleges that the rapid reoccurrence of squamous cell carcinoma in J.R.’s scalp likely resulted in Respondent’s failure to remove all cancer in the prior surgery. 40. Won Kyu Lee, M.D., testified for Respondent. Dr. Lee is board- certified in dermatopathology, hematopathology, and cytopathology. 41. Dr. Lee opined that the second tumor on J.R.’s scalp had been “already subclinically present beyond the boundaries of the Mohs surgery.” 42. Dr. Lee was able to correlate the slides taken during J.R.’s surgery and Respondent’s map of those slides. 43. Dr. Lee testified that the ulcerated and infiltrating squamous cell carcinoma lesion removed from J.R. by Respondent had a higher rate of extension or matastasis. Dr. Lee did not agree that there was matastasis of squamous cell carcinoma to J.R.’s lymph node based upon the pathology report and the size of the mass, which was 4 centimeters. 44. The weight of credible evidence established that J.R.’s subsequent squamous cell carcinoma was not a recurrence of the tumor removed by Respondent during the Mohs surgery. 45. Paragraph 12 of the Complaint alleges that Respondent’s medical records for J.R. were inadequate. 46. In his October 28, 2010 operative report under “Summary,” Respondent wrote “A tumor-free plane was achieved after 2 stages of Mohs surgery.” Respondent testified that he should have clarified that statement. He stated that he “should have said that the lateral margins were microscopically and clinically clear.” 47. Also in the operative report under “Stage 2,” Respondent wrote “Microscopic examination revealed no tumor in the deep and outer borders of these sections.” Respondent admitted that the notation should have been worded better. 48. Dr. Lee testified that a subsequent provider reviewing Respondent’s records for J.R. would not be able to determine that J.R. had some positive squamous cell carcinoma in stage 2 of the Mohs surgery. Prior Board Actions Against Respondent 49. On or about June 11, 2004, the Board issued a Decree of Censure to Respondent for unprofessional conduct. 50. On or about August 20, 2003, the Board issued a non-disciplinary Advisory Letter to Respondent for his allowing a patient to apply her own Oxsoralen lotion. 51. On or about November 7, 2001, the Board issued a disciplinary Decree of Censure to Respondent for “failure to verify license credentials of employee, allowing unlicensed employee to practice medicine in his office, and making false statements to the Board.” 52. On or about December 19, 2000, the Board issued a disciplinary Letter of Reprimand to Respondent for his “failing or refusing to maintain adequate records on a patient.” 53. On or about December 17, 1997, the Board issued a non-disciplinary Advisory Letter to Respondent for his “management, coding, and documentation of a skin lesion not otherwise specified, which resulted in scaring.” 54. On or about June 27, 1990, the Board issued a non-disciplinary Advisory Letter to Respondent for his failure to complete an “adequate history and physical examination of th[e] patient and coding for a more extensive examination and treatment than was actually provided.” 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) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record established that Respondent violated the provisions of A.R.S. § 32-1401(27) (e) by failing to maintain adequate medical records for J.R., as described in the above Findings of Fact. 4. The Board failed to sustain its burden of proving that Respondent violated the provisions of A.R.S. § 32-1401(27) (q). With the exception of his records for J.R., the weight of the credible evidence established that Respondent met the standard of care for a Mohs surgeon in his treatment of J.R. RECOMMENDED ORDER Respondent is issued a Letter of Reprimand in this matter. Respondent shall perform continuing medical education in recordkeeping as directed by the Board or its designee. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 5 days from the date of that certification.

Done this day, January 5, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Lisa Wynn, Executive Director Arizona Medical Board -----------------------

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