ALJDEC decisions subject to certification as final

11A-27055-MDX · Arizona Medical Board · 2011-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 26, 2011 APPEARANCES: The Arizona Medical Board was represented by Assistant Attorney General Anne Froedge. Angelo L. Chirban, M.D. did not appear. 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 duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. 2. Angelo L. Chirban, M.D. (“Respondent’) is the holder of License No. 27055 for the practice of allopathic medicine in the State of Arizona. 3. On or about November 15, 2010, the Board received a complaint against Respondent from D. J. L., the aunt of Respondent’s patient, S.E. Patient S.E. had been treated by Respondent for pain from approximately December 2006 through March 2010. D. J. L. alleged that Patient S.E. died from overdoses caused by Respondent’s treatment. The Board opened an investigation based upon the complaint. The Board designated the investigation as Case No. MD-10-1411A. 4. By letter dated November 16, 2010, the Board’s assigned investigator, Elle J. Steger, notified Respondent of the Board’s investigation and requested that Respondent provide a response to the complaint along with the medical records for Patient S.E. on or before November 30, 2010. The letter was sent to Respondent at his address of record with the Board, but it was later returned as undeliverable. 5. By letter dated December 9, 2010, Ms. Steger sent another letter to Respondent attaching her November 16, 2010 letter and notifying Respondent of a new allegation against him regarding his failure to provide information to the Board in a timely fashion. This letter was sent to Respondent’s home address of record with the Board. Respondent was required to respond to the letter on or before December 23, 2010. The letter also requested that Respondent update his address with the Board. No response from Respondent was received by the Board. 6. The United States Drug Enforcement Agency (“DEA”) had seized Respondent’s medical records in May 2010. Therefore, the Board’s staff obtained Patient S.E.’s medical records from the DEA rather than from Respondent. The medical records for Patient S.E. were reviewed by the Board’s medical consultant who determined that the medical records were inadequate. 7. Case No. MD-10-1411A was assigned to Paul Yamaguchi, M.D., the Board’s medical consultant. Dr. Yamaguchi is an allopathic physician licensed to practice in Arizona and California. He is board certified in Anesthesiology and has a pain management practice at Kingman Regional Medical Center. Dr. Yamaguchi works with patients with chronic pain and acute pain in a hospital setting. 8. After completing its investigation, the Board issued a Complaint and Notice of Hearing, designated as No. 11A-27055-MDX, alleging acts of unprofessional conduct by Respondent. The Complaint and Notice of Hearing advised the parties of the time, date, and location of the evidentiary hearing before the Office of Administrative Hearing, an independent agency. The Complaint and Notice of Hearing was sent to Respondent at his address of record with the Board. 9. On October 14, 2011, a telephonic prehearing conference was conducted by the Office of Administrative Hearings. The notice of the prehearing conference was sent to Respondent at his address of record with the Board. Respondent failed to appear telephonically at the prehearing conference. 10. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent him. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 11. A physician 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. See A.R.S. § 32-1401(2). 12. At hearing, Dr. Yamaguchi testified that Patient S.E. entered into a pain management contract with Respondent on December 15, 2006. He opined that Patient S.E. did not comply with the terms of her pain management contract, but Respondent continued to treat her. 13. Dr. Yamaguchi further testified that Respondent ignored red flags related to substance abuse and diversion by Patient S.E. 14. Dr. Yamaguchi noted that on occasion, Respondent properly documented in Patient S.E.’s medical records. However, the majority of those records contained deficiencies, such as: unclear, illegible entries; incomplete records; and no documentation of history. 15. The Board’s Staff Investigational Review Committee (“SIRC”) reviewed the Board’s investigation of Respondent and issued its written recommendation dated May 26, 2011. SIRC recommended that Respondent’s license be revoked unless Respondent accepted a Consent Agreement to Surrender his license in lieu of revocation.

Prior Board History 16. On October 15, 2010, Respondent was issued a Letter of Reprimand by the Board in Case No. MD-10-0134A, the terms of which are incorporated herein by reference. 17. On August 11, 2010, Respondent was issued an Advisory Letter by the Board in Case No. MD-10-0003A, the terms of which are incorporated herein by reference. 18. On June 10, 2010, Respondent was issued an Interim Practice Restriction by the Board in Case No. MD-10-0679A, the terms of which are incorporated herein by reference. 19. On May 15, 2009, Respondent was issued an Advisory Letter with Non- Disciplinary CME by the Board in Case MD-08-0746A, the terms of which are incorporated herein by reference. 20. On December 14, 2007, Respondent was issued a Letter of Reprimand by the Board in Case No. MD-06-0655A, the terms of which are incorporated herein by reference. 21. On April 6, 2006, Respondent was issued an Advisory Letter by the Board in Case No. MD-05-0252A, the terms of which are incorporated herein by reference. 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 conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Respondent pursuant to A.R.S. § 32-1401(27) (e) and (dd). 4. As a result of Respondent’s unprofessional conduct in this matter and his prior Board history, Respondent’s license should be revoked pursuant to A.R.S. § 32-1451(M). 5. Pursuant to A.R.S. § 32-1451(M), Respondent should be assessed the costs of the formal hearing in this matter. RECOMMENDED ORDER Respondent’s License No. 27055 shall be revoked on the effective date of the Order entered in No. 11A-27055-MDX (Case No. MD-10-1411A). Respondent is charged with the costs of the formal hearing in this matter. Those costs shall be paid by Respondent to the Board no later than days from the date of invoicing by the Board, unless such deadline date is extended 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 five days from the date of that certification.

Done this day, November 14, 2011.

/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