ALJDEC decisions subject to certification as final

11A-2363-PAB · Arizona Medical Board · 2011-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 13 and 14, 2011. The record was kept open until July 5, 2011, to allow the parties to file post-hearing written closing statements. APPEARANCES: The Arizona Regulatory Board of Physician Assistants was represented by Assistant Attorney Anne Froedge. Valentine E. Okon, P.A. appeared personally and was represented by his attorney, Michael P. Denea, 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 Regulatory Board of Physician Assistants (“Board”) is the authority for licensing and regulating physician assistants in the State of Arizona. 2. Valentine E. Okon, P.A. (“Respondent”) is the holder of License No. 2363 for the performance of health care tasks as a physician assistant issued by the Board. 3. On April 5, 2011, the Board, through its Executive Director, issued a Complaint and Notice of Hearing (“Complaint”) against Respondent designated as Case 11A-2363-PAB. The Complaint addressed two consolidated cases: PA-09-0078A and PA-10-0017A. 4. The Board forwarded Case No. 11A-2363-PAB to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. On May 13, 2011, the Board filed the First Amended Complaint in Case No. 11A-2363-PAB. PA-09-0078A 6. At its November 18, 2009 Regular Session Meeting, the Board voted to require Respondent to undergo a Physician Assessment and Clinical Education (“PACE”) evaluation. 7. The University of California, San Diego School of Medicine’s, PACE program was founded by William Arthur Norcross, M.D. in 1996. Dr. Norcross is the director of the PACE program. 8. Dr. Norcross explained the PACE program in his testimony as follows: The PACE program came out of my experience doing work as an expert for the medical board of California. And to summarize it, as shortly as I can, it’s a program to assess the clinical competence of physicians and other healthcare personnel. And then, when possible and where possible, to provide remedial education for physicians when deficiencies are found.

9. On November 20, 2009, the Board, through its Executive Director, issued an Interim Order for Physician Assessment and Clinical Education (PACE) Evaluation (“Interim Order for PACE”), a copy of which was sent to Respondent’s attorney at the time. 10. By letters dated November 20, 2009, Board staff informed Respondent’s then-attorney, and Respondent’s supervising physicians, Terence K. Tuttle, M.D. and Richard J. Waldrop, D.O. about the Board’s investigation of Respondent in Case No. PA-09-0078A, and requested a complete narrative response by December 2, 2009. 11. By letter dated November 23, 2009, Board staff forwarded a copy of the Board’s Interim Order for PACE to Respondent’s counsel. 12. Respondent participated in the PACE comprehensive assessment from April 19 – 23, 2010. 13. The PACE assessment consisted of the following components: Self- Report Measures; Mock Patient History and Physical; Participating Physician Assistant History and Physical and Mental Health Screening; Cognitive Screening Test using Microcog™, a computer-based assessment of cognitive skills; Oral Clinical Examination – Family Medicine; Chart Review; Multiple Choice Exams; Ethics and Communication Examination; Family Medicine Clinical Science Subject Exam; Standardized Patient Exam; Clinical Evaluation; AM Clinic Session on April 19, 2010; PM Clinic Session on April 22, 2010; PM Clinic Session on April 23, 2010; and Evidence-Based Medicine Project. 14. On June 28, 2010, Dr. Norcross and Aaron Alverson, Senior Case Manager, issued the PACE written report (“PACE Report”) regarding Respondent’s PACE assessment. 15. The PACE Report detailed each of the assessment components and Respondent’s performance. 16. The PACE Report contains the following summary and recommendations: PACE’s evaluation and training extend only to professional and clinical knowledge and behavior. All of PACE’s findings and recommendations are based on information available to us at the time.

Overall, Mr. Okon’s performance on the five-day, Physician Assistant Assessment was unsatisfactory. He performed an incomplete and technically deficient history and physical exam on our mock patient, which concluded with his recommendation for a number of unnecessary laboratory tests. Mr. Okon barely passed Dr. Schulman’s[1] oral clinical exam in family medicine, scoring 7.25 out of 10.0, but failed two of the six cases presented, putting those patients at significant risk for poor outcomes. The review of Mr. Okon’s chart notes revealed a number of broad deficiencies in his documentation, some of which directly correlate to the Arizona Medical Board investigation into his practice. Mr. Okon performed in the 1st percentile on the Ethics and Communication exam and in the 1st percentile on the Family Medicine Clinical Science Subject Exam. While these exams are normalized against and typically administered to graduating medical students, Mr. Okon’s performance was below average. He failed the standardized patient exam administered by Drs. Schulman and Bazzo.

Overall, Mr. Okon’s performance during the clinical component of the Physician Assistant Assessment was unsatisfactory. While he demonstrated professionalism and enthusiasm during his participation in the program, all of the reviewers that evaluated him commented on his poor medical knowledge. He did not know the work-ups for common clinical problems and demonstrated difficulties formulating differential diagnoses. Most concerning amongst his behaviors however, was Mr. Okon’s tendency to rush to judgments without first thoroughly evaluating a patient. This trait, combined with his superficial fund of knowledge and busy practice (seeing between 20-35 patients per day) creates a dangerous situation where he puts himself at risk of missing the more subtle signs of complex and acute illnesses, as was the case in the Arizona Medical Board’s allegation against him.

Mr. Okon demonstrated broad based deficiencies in a number of core competencies. While his shortcomings are certain, the cause of them is somewhat ambiguous. Mr. Okon’s scores on the Microcog were almost universally below average, which suggests he could be suffering from a cognitive disorder. To address these concerns, we recommend that Mr. Okon be evaluated by a primary care provider, an ophthalmologist, and receive a full neuropsychological evaluation. Once he has been fully screened and treated for all physical and neurological concerns, he may return to PACE for a reassessment. However, given his current health, as well as his demonstrated fund of knowledge and clinical judgment, Mr. Okon presents an imminent threat to patient safety.

Dr. [sic] Mr. Okon’s overall performance on our comprehensive, five day [sic] physician assistant assessment is consistent with a Fail.

(Emphasis in the original).

17. The PACE Report defined a “Fail” outcome as follows: Fail – Signifies a poor performance that is not compatible with overall physician assistant competency and safe practice. Physician assistants in this category performed poorly on all (or nearly all) aspects of the assessment. Alternatively, the physician assistant could have a physical or mental health problem that prevents him/her from practicing safely. These physician assistants are unsafe and, based on the observed performance in the PACE assessment, represent a potential danger to their patients. Some physician assistants in this category may be capable of remediating their clinical competency to a safe level and some may not. We will provide our recommendations regarding remedial educational activities. The faculty and staff of the UCSD PACE Program do not give an outcome of “Fail” lightly or casually. This assignation reflects major, significant deficiencies in clinical competence and physician assistants who receive this outcome, if they are deemed to be candidates for remedial education, should think in terms of engaging in a minimum of one full year of dedicated study and other learning activities requiring on average 30 to 40 hours per week. Under no circumstances will the UCSD PACE Program allow a physician assistant to participate in a re-assessment less than six months from the time of completion of the initial assessment.

18. On June 29, 2010, the Board, through its Executive Director, issued an Interim Order for Practice Restriction and Consent to Same in Case No. PA-09-0078A (“Interim Order for Practice Restriction”) that restricted Respondent’s practice as a physician assistant as follows: 1. [Respondent’s] practice is restricted in that he shall not perform health care tasks in the State of Arizona and is prohibited from prescribing any form of treatment including prescription medications until [Respondent] applies to the Board and receives permission to do so. The Board may require any combination of staff approved assessments, evaluations, treatments, examinations or interview it finds necessary to assist in determining whether [Respondent] is able to safely resume such practice.

19. By consenting to the Interim Order for Practice Restriction, Respondent agreed, among other things, to the following: 2. [Respondent] acknowledges and agrees that this [Interim Order for Practice Restriction] is entered into freely and voluntarily and that no promise was made or coercion used to induce such entry.

3. By consenting to this [Interim Order for Practice Restriction] [Respondent] voluntarily relinquishes any rights to a hearing or judicial review in state or federal court on the matters alleged, or to challenge this [Interim Order for Practice Restriction] in its entirety as issued, and waives any other cause of action related thereto or arising from said [Interim Order for Practice Restriction].

20. Based upon the recommendations of the PACE Report, on July 28, 2010, the Board, through its Executive Director, issued an Interim Order for Neurological, Ophthalmological, Primary Care, and Physician Assessment and Clinical Education (PACE) Re-evaluation in Case No. PA-09-0078A (“Interim Order for Evaluations”). Respondent was ordered to “contact the evaluators within 14 days to schedule the evaluations” and to participate in the evaluations within sixty days. Respondent was also ordered to complete a PACE Program re-evaluation by December 31, 2010.

21. By letter dated July 28, 2010, Board staff transmitted the Interim Order for Evaluations to Respondent’s then-legal counsel. Board staff instructed counsel that Respondent was to be evaluated by the following professionals: Phillip Lett, Ph.D. for the neuropsychological evaluation; Todd A. Lefkowitz, M.D. for the ophthalmological evaluation; and Jessica T. Ellsworth, M.D. for the primary care evaluation. 22. Respondent failed to comply with the Interim Order for Evaluations by not timely contacting the evaluators by August 11, 2010, in order to schedule the evaluations. 23. By letter dated August 13, 2010, Board staff informed Respondent’s current counsel of record that the following additional allegation against Respondent was identified in Case No. PA-09-0078A: “Failure to abide by the terms of the July 28, 2010 Interim Order for Evaluations.” Counsel was informed that Respondent could provide a written narrative in response to the new allegation to the Board by August 25, 2010. 24. By a handwritten letter to Board staff dated August 20, 2010, Respondent submitted the following narrative response: I have read about all the allegations that you and your staff level against me. They are malicious lies without any evidence. If you cannot resolve this soon and rectify my license status, I will have to sue you and all your board members.

25. By letter dated August 25, 2010, Respondent’s current attorney advised Board staff that Respondent desired to supplement the Board’s investigation after the Board completed its “formal investigative report.” Counsel asked that the Board disregard Respondent’s August 20, 2010 letter sent to Board staff “as it does not constitute his response to any inquiries made by the Board.” 26. By letter dated October 1, 2010, Respondent’s current counsel expressed, among other things, the following concerns about the Interim Order for Evaluations: Without waiving Mr. Okon’s original contention that the “interim order” in question was improvidently issued, this letter is to advise you that Mr. Okon is out of the country – Antiguia [sic], to be exact - - attending medical school and is not expected back until October 15, 2010. Therefore, it is impossible for him to either schedule and pay for the assessments or complete them within the time period allotted. On behalf of Mr. Okon, it is respectfully requested that the deadlines set forth in the July 28, 2010, “interim order” be extended.

As I have stated many times, the repetitive assessments the Board has imposed upon Mr. Okon, as well as the short turn around times to comply under threat of additional sanctions, has placed a great strain on Mr. Okon’s personal financial status and that of his family.

If the Board nonetheless attempts to continue its routine of sanctioning Mr. Okon, even after receipt of this letter, he had directed me to file a vigorous appeal with the Maricopa County Superior Court.

27. On October 7, 2010, the Board’s Staff Investigational Review Committee (“SIRC”) issued a recommendation to the Board that Case No. PA-09-0078A be forwarded to the Office of Administrative Hearings for a formal hearing. The SIRC recommended that Respondent’s license be revoked. 28. Respondent has not complied with the Board’s Interim Order for Evaluations. 29. Respondent is the owner of the Matilda Family Medicine (“Matilda”). Respondent also practices as a physician assistant at Matilda. 30. Terrence K. Tuttle, M.D. is the medical director at Matilda and Respondent’s supervising physician. On or about April 14, 2011, the Board received a written complaint indicating that Respondent had practiced health care tasks while under a practice restriction. 32. Approximately two weeks prior to his May 11, 2011 interview with Board staff, Dr. Tuttle only then discovered that Respondent’s license had a practice restriction imposed upon it. 33. In March 2011, Mona Berg, N.P. was hired by Respondent as a nurse practitioner at Matilda. At the hearing, Ms. Berg credibly testified that Respondent actively treated patients and reviewed her charting despite his practice restriction. 34. At some point Ms. Berg looked into the status of Respondent’s licensure. She felt Respondent had too many inconsistencies in his treatment approach and that too many areas of his practice were inappropriate. After reviewing the Board’s records, Ms. Berg discovered the practice restriction placed on Respondent’s license. 35. When Ms. Berg discovered that she did not have prescribing and dispensing authority until she completed the necessary CEUs and advised Respondent of such, Ms. Berg testified that Respondent informed her that Matilda was calling in prescriptions under Dr. Tuttle’s name. 36. The evidence of record established that Respondent continued to diagnose and treat patients, including prescribing and ordering laboratory tests in the name of his supervising physician, whom he failed to notify of his practice restriction, while Respondent was restricted from practicing health care tasks. PA-10-0017A: Patients ET, CA, SR, and BM 37. On November 12, 2008, the Board, through its Executive Director, issued Findings of Fact, Conclusions of Law and Order in Case No. PA- 07-0056A (“Order in PA-07-0056A) for a decree of censure and ten-year probation imposed against Respondent’s license. One of the terms of probation required Respondent to participate in quarterly chart reviews. 38. Case No. PA-10-0017A was initiated by the Board after four patient charts were randomly selected and reviewed by a Board medical consultant to determine Respondent’s compliance with Order in PA-07- 0056A. By letter dated March 12, 2010, Board staff requested that Respondent provide the Board with a copy of his entire patient log for the period of October 1, 2009 to March 1, 2010, by March 26, 2010. 40. On January 25, 2010, ET, a one-year-old patient, was treated by Respondent for fever, cough, and runny nose. ET was diagnosed by Respondent with an upper respiratory infection (“URI”), fever, and rhinosinusitis. ET was given amoxicillin, Rondec, ibuprofen, and prednisolone, which is a steroid, by Respondent. 41. On February 4, 2010, ET was again seen by Respondent and diagnosed with an URI and ear infections. He was again given amoxicillin. 42. On January 4, 2010, CA, a one-year-old patient, was seen by Respondent for cough and runny nose. CA was diagnosed by Respondent with an URI and cough. Respondent prescribed amoxicillin and Rondec. 43. Respondent prescribed amoxicillin and Rondec when CA was seen again on January 26, 2010, for a cough and sore throat. No physical examination was documented at that time. 44. On February 23, 2010, CA was seen by Respondent for a runny nose and again prescribed amoxicillin and Rondec. The physical exam only noted rhinorrhea. 45. In April of 2010, CA was seen by Respondent for a fever and, although the exam was noted to be normal, amoxicillin was prescribed. 46. The standard of care for a physician assistant requires a practitioner to avoid using steroids in the treatment of URIs or sinusitis, as they are not indicated in the treatment of these conditions. 47. Respondent deviated from the standard of care by prescribing steroids to treat ET’s URI and sinusitis. 48. The standard of care for a physician assistant requires a practitioner to prescribe a patient antibiotics when the diagnosis supports the use of the medication. 49. Respondent deviated from the standard of care by prescribing antibiotics to CA when the diagnosis did not support the use of the medication. 50. Potential harm to CA from unnecessary use of antibiotics include allergic reactions, side effects such as vomiting/diarrhea, secondary infections, and an increased risk of developing resistant bacteria. CA did not suffer any actual harm. 51. The standard of care for a physician assistant requires a practitioner to refrain from prescribing cold/cough medicine such as Rondec to children younger than two-years-old. 52. Respondent deviated from the standard of care by prescribing Rondec to ET and CA. 53. Although ET and CA did not suffer any actual harm, they could have suffered harm from Respondent’s prescribing Rondec, including, but not limited to, hypertension, seizures, dystonic reactions, behavioral disturbances, respiratory depression, thickening of bronchial secretions, nervousness, dizziness, and death. 54. A physician assistant is required to maintain adequate legible medical records containing, at a minimum, sufficient information to identify the patient, support the diagnosis, justify the treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient, and provide sufficient information for another practitioner to assume continuity of the patient’s care at any point in the course of treatment. 55. Respondent’s medical records pertaining to patients SR, CA, and BM were inadequate. 56. Respondent failed to document the patient’s history in SR’s chart. Additionally, the physical exam portion of SR’s chart failed to document pertinent positive and negative findings. There was no assessment or plan regarding SR’s complaint of knee pain. 57. Respondent failed to document the physical exam and history of present illness in CA’s chart, although Respondent prescribed Amoxicillin and Rondec. 58. On February 1, 2010, Respondent treated BM for cough and abdominal pain. The physical exam portion of BM’s chart indicated an abnormal finding for the abdomen; however, the notes next to the finding were illegible. BM’s chart had no further documentation in the assessment or plan addressing the abdominal pain. 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. Pursuant to A.R.S. § 32-1551(A) the Board “may investigate any evidence that appears to show that a physician assistant is or may be medically incompetent or physically unable to carry out approved health care tasks.” 4. Pursuant to A.R.S. § 32-2551(B), the Board or its Executive Director “may require a mental, physical or medical competency examination or any combination of those examinations.” Further, the Board or its Executive Director “may require the physician assistant, at the physician assistant’s expense, to undergo assessment by a board approved rehabilitative, retraining or assessment program.” 5. The evidence of record supports the conclusion that Respondent is medically incompetent and/or mentally or physically unable to safely practice as a physician assistant, pursuant to A.R.S. § 32-2551(J), as alleged by the Board. 6. The evidence of record supports the conclusion that Respondent committed unprofessional conduct pursuant to A.R.S. § 32-2501(21) (j), (p), and (dd), as charged by the Board. 7. The evidence of record supports the conclusion that Respondent’s License No. 2363 should be revoked to protect the public health and safety, pursuant to A.R.S. § 32-2551(J). 8. The evidence of record supports the conclusion that Respondent should be assessed the Board’s costs of the formal hearing, pursuant to A.R.S. § 32-2551(M). 9. The evidence of record supports the conclusion that Respondent should be assessed a total civil penalty of $3,000.00[2] for his unprofessional conduct, pursuant to A.R.S. § 32-2551(K). RECOMMENDED ORDER Respondent’s License No. 2363 shall be revoked on the effective date of the Order entered in Case No. 11A-2363-PAB Respondent is assessed the Board’s costs of the formal hearing, pursuant to A.R.S. § 32-2551(M). Respondent shall pay those costs to the Board no later than 30 days from the date of invoicing from the Board or Board staff, unless that deadline date is extended by the Board or its designee. Respondent is assessed a total civil penalty in the amount of $3,000.00, pursuant to A.R.S. § 32-2551(K). Respondent shall pay the total civil penalty to the Board no later than 30 days from the effective date of the Order entered in Case No. 11A-2363-PAB. 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 five (5) days from the date of that certification. Done this day, July 25, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Lisa Wynn, Executive Director Arizona Medical Board ----------------------- [1] Martin Craig Schuman, M.D. is a board certified family medicine physician with a solo practice and also serves as an associate physician with the PACE program. [2]()1237¾¿ÇÈÉÌØäåæôõþÿ h—$êh^ôCJh^ô5?>*[pic]CJhúih^ô5?CJ The total civil penalty is calculated at $1,000.00 per each above-described violation of unprofessional conduct by Respondent.

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