ALJDEC decisions subject to certification as final

11A-28212-MDX · Arizona Medical Board · 2012-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 1, 2012, at 8:00 a.m.; the record was held open until March 16, 2012, for receipt of the court reporter’s transcript. APPEARANCES: Respondent Tin T. Win, M.D. appeared on her own behalf; the Arizona Medical Board was represented by Anne Froedge, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Medical Board (“the Board”) is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. The Board licensed Tin T. Win, M.D. (“Dr. Win” or “Respondent”) to practice as an allopathic physician in Arizona. Dr. Win specializes in neurology and practices in Lake Havasu City, Arizona. On August 20, 2003, the Board issued a non-disciplinary letter of concern to Dr. Win for her poor documentation of a patient’s history and lack of effort to obtain prior medical records in her care of a patient in Case No. MD-02-0502A.[1] On June 4, 2009, the Board’s Executive Director accepted Dr. Win’s entry into a Consent Agreement to resolve another matter, Case No. MD-08- 0581A.[2] In the Consent Agreement, Dr. Win admitted that she committed unprofessional conduct pursuant to A.R.S. § 32-1401(27)(e) (“[f]ailing or refusing to maintain adequate records on a patient”) and A.R.S. § 32- 1401(27)(q) (“[a]ny conduct or practice that is or might be harmful or dangerous to the health of the patient or the public”) by deviating from the standard of care in her treatment of patient RD, in relevant part as follows: 7. The standard of care when a patient presents for pain management, adjustment of intrathecal pump, and systemic medications requires the physician to obtain an appropriate pain history, pertinent general medical history, physical exam and to review medical records; to discontinue intrathecal Baclofen by gradually tapering the dose to avoid withdrawal syndrome; to reinstate intrathecal Baclofen when the syndrome does occur; and to follow rational pharmacological principles when making adjustments to intrathecal infusion medications and dosages and when adding oral opioids. Additionally, prior to initiating Methadone the standard of care requires a physician to evaluate the patient for risk factors for cardiac output prolongation that may predispose to cardiac complications from Methadone.

8. Respondent deviated from the standard of care because she did not obtain an appropriate pain history or review RD’s medical records; she did not appropriately discontinue the intrathecal Baclofen or reinstate intrathecal Baclofen when RD experienced withdrawal symptoms; and she did not follow rational pharmacological principles when she made adjustments to RD’s intrathecal infusion medications and dosages and added oral opioids. Additionally, she did not evaluate RD for risk factors for cardiac output prior to initiating Methadone.

9. RD suffered Baclofen withdrawal syndrome following abrupt discontinuation of intrathecal Baclofen. Respiratory depression and aspiration may have been associated with the acute increases in multiple opioids. Non-fatal or fatal cardiac dysrhythmia may have occurred due to introduction of oral Methadone. Respondent’s abrupt discontinuation of intrathecal Baclofen, her failure to recognize early signs of intrathecal Baclofen withdrawal syndrome, and the inadequacy of the medical records could have resulted in RD suffering delirium, seizure, disseminated intravascular coagulation, multiple organ failure, brain damage, or death.

10. 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. A.R.S. § 32-1401(2). Respondent’s records were inadequate because she did not obtain past medical records, she adjusted intrathecal medications without documenting detailed information, she continually prescribed medications without indication, and she did not document which medications she discontinued.[3]

The Consent Agreement in Case No. MD-08-0581A placed Dr. Win on probation for a period of one year and required Dr. Win to complete 15-20 hours of Board Staff pre-approved Category I Continuing Medical Education (“CME”) in prescribing controlled substances and 15-20 hours of CME in medical record- keeping, in addition to the CME hours required for biennial renewal of her license. Dr. Win successfully completed the terms of her probation in Case No. MD-08- 0581A. On or about March 30, 2011, the Board received a complaint from patient DJ against Dr. Win alleging among other things that Dr. Win inappropriately prescribed Methadone to treat DJ’s chronic pain. As part of the Board’s investigation, it assigned outside Medical Consultant J. Michael Powers, M.D. to review the complaint and to render an opinion to the Board about whether Dr. Win deviated from the standard of care in her treatment of DJ. After Dr. Powers issued his Medical Consultant Report and Summary, Dr. Win responded to the report, and Dr. Powers responded to Dr. Win’s response. The Board’s Staff Investigational Review Committee (“SIRC”) thereafter reviewed available documentation on the complaint. On or about July 28, 2011, the SIRC recommended that the Board enter a Decree of Censure and Practice Restriction against Dr. Win to prohibit her from prescribing controlled substances for a period of five years.[4] After Dr. Win declined to enter into a second Consent Agreement to resolve DJ’s complaint, she elected to undergo a formal interview by the Board. Dr. Win’s formal interview was scheduled at the Board’s meeting on October 5, 2011. Dr. Win failed to appear for the scheduled formal interview. Although Dr. Win claimed that an injury to her ankle prevented her appearance, the Board did not excuse Dr. Win’s failure to appear because she provided only an x-ray to substantiate the injury and did not provide a diagnosis from her physician. On October 5, 2011, the Board held an emergency teleconference to consider the SIRC’s recommendation. On October 5, 2011, the Board entered Interim Findings of Fact, Conclusions of Law, and an order summarily restricting Dr. Win’s license to prohibit her from prescribing, administering, or dispensing any controlled substances.[5] On or about October 7, 2011, Dr. Win sent a memorandum to the Arizona Attorney General to protest DJ’s “Wrongful Accusation” and the Board’s “Unjustifiable Punishment.”[6] Thereafter, the Board referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On October 20, 2011, the Board issued a Complaint and Notice of Hearing, charging Dr. Win with unprofessional conduct pursuant to A.R.S. § 32- 1401(27)(e) and (q) by deviating from the standard of care in her treatment of patient DJ. The OAH hearing was continued several times at the parties’ request to allow them additional time to negotiate a settlement. After the parties informed the Administrative Law Judge that they were unable to reach a settlement, Dr. Win’s attorney withdrew from her representation. A hearing was held at the OAH on March 1, 2012, at which Dr. Win represented herself. The Board submitted fifteen exhibits and presented the testimony of two witnesses: (1) Elle Steger, the Board’s investigator who investigated DJ’s complaint; and (2) Dr. Powers. Dr. Win submitted two exhibits and testified on her own behalf. Additional Hearing Evidence Dr. Win’s Treatment of DJ DJ was an obese, 58-year-old woman whose primary residence was in Renton, Washington. During the winter of 2011, DJ and her husband lived in a motor home as winter visitors in Quartzsite, Arizona. DJ’s primary care physician in Washington had been treating her for chronic pain with morphine, oxycodone, and Tylenol III, but during the winter of 2011, DJ ran out of pain medications. Because DJ’s primary care physician had suggested that she start addressing long-term management of her chronic pain by seeing a neurologist, DJ made an appointment with Dr. Win. On January 3, 2011, Dr. Win saw DJ for neurological evaluation of pain. Dr. Win’s progress note reported DJ’s medical history as including hepatitis, migraine headache, and arthritis, and DJ’s present medications as including Effexor XR 150 mg qd, Lyrica 225 mg bid, Zolpidem 10 mg hs, and the over-the-counter (“OTC”) medications of Aleve, Motrin, or Advil.[7]

Dr. Win’s January 3, 2011 progress note reported that DJ complained of pain that started at her low back and radiated down her left leg, but that she did not want to take too much OTC analgesics because of her “liver problem.”[8] Dr. Win’s January 3, 2011 progress note did not report that DJ complained of a headache. DJ’s complaint to the Board mentioned a history of low back pain, fibromyalgia, neuropathy in her feet and legs, and left knee pain, but did not mention headache. On January 3, 2011, Dr. Win did not possess any of DJ’s past medical records to review, with the exception of an MRI that DJ brought to the appointment that showed minimal degenerative disk disease. Dr. Win’s impressions of DJ on January 3, 2011, were “Radiculopathy L- spine” and “Analgesic Rebound Headache.”[9] On January 3, 2011, Dr. Win prescribed to DJ Methadone 10 mg tid (90 tablets/month), Demerol 50 mg qid prn (120 tablets/month), and Soma 350 mg tid prn (90 tablets/month).[10] Dr. Win did not require DJ to sign a narcotic contract or to submit to a urine drug test to detect whether any controlled substances were in her system. Dr. Win obtained DJ’s medical records from Washington pursuant to her release and authorization on January 4, 2011. Dr. Win’s medical record reflects that on January 6, 2011, DJ’s husband called Dr. Win’s office and reported that the prescribed medications were making DJ weak, shaky, and confused, and she was not sleeping. Dr. Win’s record reflects that she advised DJ to stop taking the Demerol and Soma, but to continue taking the Methadone.[11] DJ in her complaint to the Board stated that she took the Methadone, but in a low dose, and that before January 6, 2011, she had only taken two tablets of the Demerol and one tablet of the Soma.[12] On February 2, 2011, DJ returned to Dr. Win for a follow up office visit.[13] Dr. Win’s progress note reported DJ “had 2 migraines, and the headache was better.”[14] Dr. Win continued DJ on Methadone 30 mg and increased her Effexor to 225 mg. Dr. Win’s diagnoses of DJ on the February 2, 2011 progress note were the same diagnoses as on the January 3, 2011 progress note, “Radiculopathy L- spine” and “Analgesic Rebound Headache.” According to DJ’s complaint, during the week of February 14, 2011, she started experiencing altered consciousness. DJ reported that one night at 3:00 a.m., her husband awoke and found her dressed, and when he asked what she was doing, she said that she was meeting a group of friends to go bungee jumping.[15] DJ reported that during the first part of the week of February 14, 2011, she called Dr. Win’s office to report the severe problems that she was having with the prescribed medications, and that she was told that she needed to come in for Dr. Win to examine her on February 21, 2011.[16] DJ reported that she stopped taking all medications that Dr. Win had prescribed after she called Dr. Win’s office. Although Dr. Win’s records do not include a record of a telephone call from DJ during the week of February 14, 2011, her records showed a missed appointment for DJ on February 21, 2011.[17] On the morning of February 21, 2011, DJ’s husband took her to the emergency room at La Paz Regional Hospital. DJ reported on her complaint that she had fallen into a deep depression, was experiencing anxiety attacks, was not eating or drinking, and was screaming at her husband to take her home.[18] The emergency room record noted that DJ had minimal eye contact and a whining tone to her voice.[19] A urine drug screen was negative for opiates.[20] DJ’s diagnosis at the emergency room was “Drug withdrawal.”[21] Evidence on the Standard of Care Dr. Powers has been licensed as an allopathic physician in Arizona since 1977, and practices adult neurology. Dr. Powers testified that neurology concerns patients who have symptoms that relate to the central nervous system, meaning brain, spinal cord, nerves, or muscles. In practice, neurologists treat patients who have symptoms, such as headaches or pain in their arms, legs, neck, or back. Dr. Powers is certified by the American Board of Psychiatry and Neurology. Dr. Win graduated from medical school in Burma in 1976, and moved to the United States in 1989 for a medical residency. Dr. Win practiced neurology in Alabama and Kansas before she moved to Lake Havasu in 2002. Although Dr. Win is not board certified, she is board eligible. Dr. Powers opined that the standard of care requires a physician to be familiar with the drugs that she prescribes and that if a physician prescribes a narcotic to treat a patient’s pain, she should be familiar with the narcotic’s potential interactions with other drugs that the patient is taking and the narcotic’s potential effect on the patient’s other health conditions. Dr. Powers testified that Methadone and Demerol are not the standard drugs for initiation of narcotic therapy for a patient who is narcotic naïve, meaning the patient has no narcotics in her system. Dr. Powers testified that because narcotic drugs are addicting, patients become habituated to such drugs and can handle higher doses. Dr. Powers testified that the significance of the absence of narcotic drugs in a patient’s system was that a smaller dose of a narcotic would have a more profound effect on the patient than the drug would have had if she already had a narcotic drug in her system. Dr. Powers testified that Methadone is a synthetic narcotic that was developed primarily for treating long-term drug abuse. Dr. Powers testified that Methadone is a long-acting narcotic that builds up in a patient’s system, even if the dosage is not increased, and that the half- life of Methadone, which means how long it takes to get half of a drug out of the patient’s system, may be from half a day to up to a week, depending on the patient. Dr. Powers testified that Demerol is a short-acting synthetic narcotic that is infrequently used, but may be prescribed in hospitals for acute pain. Dr. Powers testified that if a patient has a reaction to Methadone, it will be in their system a long time. Therefore, typically, physicians start patients on a shorter acting narcotic to determine their response and then transition them to Methadone if appropriate. Dr. Powers testified that if a physician determines to prescribe Methadone to a narcotic naïve patient, the drug should be started on an appropriately low dose. Dr. Powers testified that Methadone is available in a 5 mg dose, half of what Dr. Win prescribed. Dr. Powers testified that Soma is a sedative or muscle relaxant that was used before Valium came to be commonly used. Zolpidem is also a sedative/hypnotic used to help patients sleep. Dr. Powers testified that because narcotics and sedatives both depress respiration, the more combined drugs that are prescribed, the greater the risk of a patient having respiratory depression and dying. Therefore, the standard of care requires a physician to use caution in prescribing narcotics in combination with sedatives. Dr. Powers testified that if Dr. Win felt there was an extreme extenuating circumstance that required her to prescribe a combination of narcotic and sedative drugs, she should have documented the circumstance in the medical record. Dr. Powers testified that according to the January 3, 2011 progress note, DJ complained of pain in her back and neck, and a history of headaches. Dr. Powers testified that when a patient complains of global pain, a physician is required to identify the specific sources of the pain and to provide diagnoses to establish those pain sources before she prescribes narcotics for chronic, noncancer pain. Dr. Powers testified that the basis for Dr. Win’s diagnosis of an analgesic rebound headache was unclear, but that prescribing narcotics and sedatives to a patient with rebound headaches likely would make them worse.

Dr. Powers testified that before a physician prescribes narcotics to a patient to treat chronic pain, she should obtain a detailed history of any issues with depression, including suicide attempts, or substance abuse. Dr. Powers testified that because Effexor is an anti-depressant, he would have expected a narrative on Dr. Win’s January 3, 2011 progress note addressing DJ’s depression and stating whether she had ever contemplated suicide before Dr. Win prescribed narcotics to DJ. Dr. Powers testified that the physician should have the patient’s past medical records to determine what had been tried and the patient’s experiences with narcotics before prescribing them. Dr. Powers testified that although Dr. Win increased DJ’s Effexor dosage on February 2, 2011, the progress note for that date did not discuss DJ’s depression or the reason for the increased dosage. Dr. Powers testified that before a physician prescribes narcotics to a patient, she should require the patient to sign a narcotic contract and to undergo testing to see if the patient had drugs in her system. Dr. Powers testified that he imposes such requirements on patients who are winter visitors, although he acknowledged that he had a patient whom he did not require to sign a contract. Dr. Powers testified that he made an exception for the patient because he was in contact with the patient’s primary care provider in Utah, with whom the patient had a contract, and the patient was a 70-year-old devout Mormon woman who had been taking narcotics for many years. Dr. Powers testified that before a physician prescribes narcotics to a patient, she should go to the Arizona Pharmacy Board website for controlled substance prescriptions to make sure that the patient is not obtaining narcotics from multiple providers. Dr. Powers testified that because Methadone is metabolized in the liver, it should not be prescribed to a patient with a liver problem because with the naturally long half-life of methadone, it would amplify the problem. Dr. Powers testified that because Dr. Win’s record did not document the cause or extent of DJ’s liver issue, he could not determine with certainty whether Dr. Win’s prescription of Methadone to DJ in light of her liver problem provided another departure from the standard of care. Dr. Powers testified that although DJ’s husband reported to Dr. Win on January 6, 2011, that she had difficulty with the medications, Dr. Win’s medical record did not include any reference to DJ’s difficulties. Dr. Powers testified that the standard of care required Dr. Win to discuss DJ’s difficulties and whether any alternatives to Methadone were considered, but the medical record did not reference any such discussion. Dr. Powers’ initial Medical Consultant Report and Summary criticized Dr. Win for prescribing 225 mg Effexor because that dose did not exist. Dr. Win provided evidence from the internet that Effexor does in fact exist in that dose, and Dr. Powers retracted that criticism at the hearing.[22] Dr. Powers testified that he understood that after the January 3, 2011 office visit, DJ took Methadone sparingly, but that after the February 2, 2011 office visit, DJ started taking Methadone in the full prescribed dosage. Dr. Powers testified that DJ’s reported confusion and delirium during the week of February 14, 2011, were symptoms of narcotic toxicity. Dr. Powers testified that he understood that DJ stopped taking Methadone after the incident during the week of February 14, 2011. Dr. Powers testified that the symptoms of narcotic withdrawal include tremulousness, nausea, and anxiety, and that he agreed with the emergency room physician’s diagnosis that DJ was going through narcotic withdrawal on February 21, 2011. Dr. Powers’ Medical Consultant Report and Summary noted as a factor in mitigation that “[m]anagement of chronic pain patients is challenging.”[23] Dr. Win testified that she prescribed Methadone because DJ complained about financial problems and Methadone was less expensive than other pain medications. Dr. Win testified that she prescribed Methadone to DJ in the lowest possible dose. Dr. Win testified that she prescribed three medications because Quartzsite is a three-hour drive from Lake Havasu City, she had explained the medications to DJ, and she had instructed DJ to call if she had any problems. Dr. Win testified that narcotic naïve means that a patient has not taken narcotics in the past and does not know how they will affect her. Dr. Win testified that DJ had some experience in the effect that narcotics would have on her because she had taken narcotics in the past and therefore, that she was not narcotic naïve. Dr. Win testified that she checked the Arizona Pharmacy Board’s website and determined that DJ had not obtained any controlled substances in Arizona. The printout from the search was not included in DJ’s medical record. Dr. Win acknowledged at the hearing that her records for DJ could have been more complete. Dr. Win testified that because when she talks to a patient, she looks into the patient’s eyes so that they understand what she is saying, she talks more than she writes and her medical records do not include everything that she says to a patient. Dr. Win testified that she was trained in Burma to focus on the patient, but in the United States, the focus is on the documents. Dr. Win testified that on February 2, 2011, DJ was improved, very satisfied with her care, and was very content that she did not have to take a lot of medicine. Dr. Win noted that DJ did not file a complaint to the Board until after she complained about the bill that Dr. Win’s office sent her. Dr. Win testified that her first choice to treat pain from fibromyalgia is to advise the patients to exercise and lose weight, and that she has exercise machines set up in her office. Dr. Win testified that she advised DJ that she needed to exercise and to lose weight, but acknowledged that she did not document that advice in the medical record. Dr. Win testified that she has a sign in her office to inform patients that she will not prescribe OxyContin, and she only gives patients a prescription for a 30-day supply of narcotics. Dr. Win testified that the restriction that the Board imposed on her privilege to prescribe or administer controlled substances has imposed a hardship on her patients because she is the only doctor who prescribes medication to fill the Medtronic pump in Lake Havasu City. In rebuttal, Ms. Steger testified that in another case in which the Respondent physician alleged that a practice restriction would leave his patients without care alternatives, the Board had conducted an informal survey of physicians practicing pain management in Lake Havasu City and Mohave County. Ms. Steger testified that the Board found that other physicians practiced pain management in Dr. Win’s geographical vicinity. CONCLUSIONS OF LAW 1. The Board has jurisdiction to consider this complaint and to discipline Dr. Win’s license to practice allopathic medicine in Arizona.[24] 2. The Board bears the burden of proof to establish cause to discipline Dr. Win’s license to practice allopathic medicine in Arizona by a preponderance of the evidence.[25] Dr. Win bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. [26] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[27] 4. The Board established that its October 5, 2011 Interim Findings of Fact, Conclusions of Law and Order for Summary Restriction of License was justified. Regardless of whether Dr. Win in fact injured her ankle or should have been excused from appearing for the scheduled formal interview, the similarities of the circumstances of DJ’s complaint to the circumstances of RD’s previous complaint in Case No. MD-08-0581A indicated that Dr. Win could have a persistent problem in prescribing and documenting narcotic drugs. The Board reasonably concluded that the protection of the public required restriction of Dr. Win’s ability to prescribe controlled substances until the Board determined the merits of DJ’s complaint. 5. The Board established that Dr. Win departed from the standard of care and committed unprofessional conduct pursuant to A.R.S. § 32-1401(27)(q) (“[a]ny conduct or practice that is or might be harmful or dangerous to the health of the patient or the public”) in the following respects: (1) Prescribing Methadone, Demerol, and Soma to DJ, even though she was already taking Effexor, Lyrica, and Zolpidem, and was not taking any narcotic at that time; (2) Failing to appropriately manage DJ’s prescriptions when she reported adverse side effects on January 6, 2011, and on or about February 14, 2011.[28] 6. The Board established that DJ actually suffered harm caused by Dr. Win’s prescription of Methadone when DJ experienced symptoms of narcotic toxicity on or about February 14, 2011. Although the Board established that DJ was experiencing narcotic withdrawal on February 21, 2011, Dr. Win did not advise DJ to discontinue Methadone. 7. The Board established that Dr. Win failed to maintain an adequate record for DJ as defined by A.R.S. § 32- 1401(2)[29] and committed unprofessional conduct pursuant to A.R.S. § 32-1401(27)(e) (“[f]ailing or refusing to maintain adequate records on a patient”) in the following respects: (1) Failing to document any direct response to DJ’s reports of adverse side effects on January 6, 2011, and on or about February 14, 2011; (2) Failing to document the basis of the diagnosis of an analgesic rebound headache; and (3) Failing to document DJ’s history of depression and the reason for the increased Effexor dosage on February 2, 2011.[30] 8. As a factor in mitigation of the penalty, Dr. Powers acknowledged that treatment of chronic pain patients can be challenging under the best of circumstances. Dr. Win’s treatment of DJ was complicated by the fact that DJ was a winter visitor who lived three hours away from Dr. Win’s office in Lake Havasu City and had financial problems that could affect her willingness to drive to repeated appointments. Dr. Win appeared to be a very compassionate, honest, and earnest physician at the hearing. 9. The Administrative Law Judge understands the SIRC’s reluctance to make further attempts to remediate Dr. Win’s practice deficiencies in the prescription of controlled substances, since the CME required in Case No. MD-08-0581A did not prevent similar deficiencies that the Board established at the hearing on DJ’s complaint. However, the current violations do not support revocation, and Dr. Win credibly testified that her practice depends upon her ability to prescribe controlled substances. Dr. Win is unlikely in five years to remediate the practice deficiencies that led to the statutory violations that were found in this case if the Board does not give her a specific directive and the opportunity to improve in a shorter term. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Board’s Final Order in this matter, the Board issue a decree of censure against License No. 28212 for the practice of allopathic medicine in Arizona previously issued to Respondent Tin T. Win, M.D. It is further recommended that on the effective date of the Board’s order, the Board place Dr. Win’s license on probation for five years, subject to the following terms: a. Dr. Win shall within one year complete 15 – 20 hours of Board Staff pre-approved Category I Continuing Medical Education (“CME”) in prescribing controlled substances and 15 – 20 hours of CME in medical record-keeping. Dr. Win shall provide Board Staff with satisfactory proof of attendance. The CME hours shall be in addition to the hours required for the biennial renewal of Dr. Win’s medical license. b. Only after Board Staff accepts Dr. Win’s proof of having completed the additional CME in prescribing controlled substances and medical record-keeping shall the Board reinstate her privilege to prescribe, administer, or dispense any controlled substance. c. If the Board reinstates Dr. Win’s privilege to prescribe, administer, or dispense controlled substances, Dr. Win shall keep a log of all controlled substances that she prescribes, administers, or dispenses and shall provide a copy of the log to the Board on the fifth day of each month following the month in which Dr. Win prescribed, administered, or dispensed the controlled substance. d. If the Board requests patient medical records based on the logs that Dr. Win provides, she shall provide copies of the requested medical records to the Board within five days. e. Dr. Win shall make herself available to be interviewed or counseled telephonically by Board Staff or the Board’s designee, and shall schedule a telephonic interview or counseling session within five days of Board’s Staff’s request. f. Dr. Win shall obey all state, federal and local laws, and all rules governing the practice of allopathic medicine in Arizona. g. In the event Dr. Win should leave Arizona to reside or practice outside the State or for any reason should Dr. Win stop practicing medicine in Arizona, Dr. Win shall notify the Executive Director in writing within ten days of departure and return, or the dates of non-practice within Arizona. Non-practice is defined as any period of time exceeding thirty days during which Dr. Win is not engaging in the practice of medicine. Periods of temporary or permanent residence or practice outside Arizona, or of non-practice within Arizona, will not apply to the reduction of the probationary period. h. Dr. Win shall bear all costs of complying with the terms of her probation. i. Dr. Win may voluntarily surrender her license at any time after the effective date of the Board’s final Decision and Order. j. If Dr. Win violates the terms of her probation, the Board may revoke Dr. Win’s probation and take further disciplinary action against her license after affording Dr. Win notice and an opportunity to be heard. If a complaint or petition to revoke probation is filed against Dr. Win during her probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended. 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, April 3, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Lisa Wynn, Executive Director Arizona Medical Board ----------------------- [1] See the Board’s Ex. 15. [2] Dr. Win signed the Consent Agreement on or about April 23, 2009. [3] The Board’s Ex. 14 at 5-6, ll. 14-22 (footnote added). [4] See the Board’s Ex. 9. [5] See the Board’s Ex. 11. [6] See the Board’s Ex. 12. [7] See the Board’s Ex. 3 at 5. [8] Id. [9] Id. at 6. [10] Id. [11] See the Board’s Ex. 3 at 9. [12] See the Board’s Ex. 1 at 1. [13] Although the Board’s complaint and Dr. Powers’ consultant’s report state that DJ’s second office visit was on February 3, 2011, see the Board’s Ex. 5 at 1, the date on Dr. Win’s medical record and on DJ’s complaint was February 2, 2011, see the Board’s Ex. 1 at 1 and Ex. 3 at 7. A one-day discrepancy is not material to the charged violations in this case. [14] The Board’s Ex. 3 at 7. [15] See the Board’s Ex. 1 at 2. [16] See the Board’s Ex. 1 at 1, Ex. 10 at 2. [17] See the Board’s Ex. 3 at 11. [18] See the Board’s Ex. 1 at 2. [19] See the Board’s Ex. 4 at 4. [20] See the Board’s Ex. 4 at 7. [21] Id. at 5. [22] See Court Reporter’s Confidential Transcript at 135, ll. 7-11, 18-24. [23] The Board’s Ex. 5 at 2. [24] See A.R.S. § 32-1451. [25] 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). [26] See A.A.C. R2-19-119(B)(2). [27] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [28] Although Dr. Powers seemed to testify that Dr. Win’s treatment of DJ deviated from the standard of care in other respects, the Administrative Law Judge only makes findings on the deviations that were noticed in the Board’s Complaint and Notice of Hearing. [29] A.R.S. § 32-1401(2) provides as follows: "Adequate records" means 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.

[30] Although Dr. Powers seemed to testify that Dr. Win’s medical record for DJ deviated from the requirements of A.R.S. § 32-1401(2) in other respects, the Administrative Law Judge only makes findings on the deviations that were noticed in the Board’s Complaint and Notice of Hearing.

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