ALJDEC decisions subject to certification as final

13A-12231-MDX · Arizona Medical Board · 2013-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2013, at 8:00 a.m. APPEARANCES: Respondent Reynaldo Adrillana de los Angeles, M.D. did not appear; the Arizona Medical Board was represented by Sarah E. Selzer, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

PROCEDURAL ORDER REGARDING AMENDED ADMINISTRATIVE LAW JUDGE DECISION

On November 5, 2013, the Administrative Law Judge (“ALJ”) issued the original Administrative Law Judge Decision. On November 6, 2013, the Arizona Medical Board’s attorney filed a request for amendment because Conclusion of Law No. 3 misstated the burden of proof as a preponderance of the evidence under A.A.C. R2-19-119, when A.R.S. § 32-1451.04 provides that “[e]xcept for disciplinary matters brought pursuant to section 32-1401, paragraph 27, subdivision (z), the board has the burden of proof by clear and convincing evidence for disciplinary matters brought pursuant to this chapter.” A.A.C. R2-19-119(A) provides that in hearings conducted in the Office of Administrative Hearings, “[u]nless otherwise provided by law, the standard of proof is a preponderance of the evidence.” Because A.R.S. § 32- 1451.04 unequivocally provides that in disciplinary matters brought by the Arizona Medical Board pursuant to A.R.S. § 32-1401(27)(e), (o), (q), (ll), and (ss), like this one, the standard of proof is clear and convincing evidence, the ALJ does not wait for a response to correct her indisputable error in the original Administrative Law Judge Decision. The Administrative Law Judge has reweighed the undisputed evidence that she summarized in Finding of Facts Nos. 3 through 13, and amends Conclusion of Law Nos. 3, 5, and 6, and renumbers Conclusions of Law 7.1 to 7.4 to correct typographical errors, as follows: FINDINGS OF FACT 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 issued of License #12231 to Reynaldo Adrillana de Los Angeles, M.D. (“Respondent”) for the practice of allopathic medicine in the State of Arizona. In August 2012, the Board received notice that the Nebraska Board of Medicine and Surgery (“NBMS”) had suspended Respondent’s license to practice medicine for one year because he had failed to conform to minimal standards of acceptable medical practice. Based on this notification, Board staff began an investigation. NBMS filed an Amended Petition which alleged that Patient A saw Respondent for psychiatric care and Respondent prescribed Patient A opioids to address her complaints of leg discomfort due to varicose veins, restless leg syndrome, and lower back pain. According to the Amended Petition, Respondent fell below the standard of care in treating Patient A because: 1. Respondent did not appropriately perform physical examinations of Patient A as one component of the initial diagnostic assessment prior to initiating opiates and he failed to provide a discernible diagnosis to support the use of opiates; 2. Respondent noted but failed to react to Patient A’s adverse effects to the medications, specifically, physical and cognitive impairment; 3. Respondent noted but failed to react to a decrease in Patient A’s activities of daily living during the course of her hydrocodone and benzodiazepine use; 4. Respondent ignored or disregarded, for an extended period of time, very pronounced and widespread documentation of Patient A’s aberrant behaviors; and 5. Respondent had a poor understanding of the relative risk of the medications that he was providing to Patient A, despite all of the observed aberrant behaviors. Respondent consented to the entry of a final disciplinary order by NBMS that found the allegations of the Amended Petition to be true and suspended Respondent’s license to practice medicine in Nebraska for one year. Reinstatement of Respondent’s Nebraska license at the end of the one-year suspension was at the discretion of NBMS. The suspension began in June 2012. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On August 12, 2013, the Board issued a Complaint and Notice of Hearing in this matter, charging that Respondent had committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(e), (q), (ll), and (ss), and setting a hearing on October 17, 2013, at the OAH. The Board mailed a copy of the Complaint and Notice of Hearing to Respondent at his last known address. A hearing was held on the date and time set forth in the Complaint and Notice of Hearing, October 17, 2013, at 8:00 a.m. Respondent did not request to appear telephonically at the hearing. Respondent did not appear personally or through an attorney, did not contact the OAH to request a continuance or that the time for the hearing be delayed, and did not present any evidence to defend his license to practice allopathic medicine in Arizona. The Board presented the testimony of Danielle “Elle” Steger, the investigator assigned to the case, and submitted nine exhibits to establish the facts set forth above. Ms. Steger pointed out that Respondent acknowledged the allegations against him and agreed to refrain from practicing medicine for one year when he consented to NBMS’s final order.[1] Ms. Steger testified that although the one-year period that Respondent consented to have NBMS suspend his license in Nebraska had ended, she believed that NBMS continued to restrict Respondent’s ability to prescribe medication. Ms. Steger testified that the NBMS order reinstating Respondent’s license was not yet public. Ms. Steger pointed out that the Board’s Staff Investigational Review Committee recommended that Respondent’s license to practice allopathic medicine in Arizona be revoked.[2] CONCLUSIONS OF LAW 1. The Complaint and Notice of Hearing that the Board mailed to Respondent at his last known address was reasonable and Respondent is deemed to have received notice of the hearing.[3] 2. The Board has jurisdiction to consider this complaint and to discipline Respondent’s license to practice allopathic medicine in Arizona.[4] 3. The Board bears the burden of proof to establish cause to discipline Respondent’s license to practice allopathic medicine in Arizona by clear and convincing evidence.[5] Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”[6] 4. A.R.S. § 32-1451.02(A) requires the Board to “initiate an investigation pursuant to section 32-1451 if a medical regulatory board in another jurisdiction in the United States has taken disciplinary action against a licensee for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.” 5. The Board established by clear and convincing evidence that NBMS’s action against Respondent’s Nebraska license constituted unprofessional conduct pursuant to A.R.S. § 32-1401(27)(o), which provides as follows: Action that is taken against a doctor of medicine by another licensing or regulatory jurisdiction due to that doctor's mental or physical inability to engage safely in the practice of medicine or the doctor's medical incompetence or for unprofessional conduct as defined by that jurisdiction and that corresponds directly or indirectly to an act of unprofessional conduct prescribed by this paragraph. The action taken may include refusing, denying, revoking or suspending a license by that jurisdiction or a surrendering of a license to that jurisdiction, otherwise limiting, restricting or monitoring a licensee by that jurisdiction or placing a licensee on probation by that jurisdiction.

6. The Board also established by clear and convincing evidence that if Respondent had treated Patient A in Arizona, he would have committed unprofessional conduct pursuant to the following statutes: 1. A.R.S. § 32-1401(27)(e) (“Failing or refusing to maintain adequate records on a patient”); 2. A.R.S. § 32-1401(27)(q) (“Any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public”); 3. A.R.S. § 32-1401(27)(ll) (“Conduct that the board determines is gross negligence, repeated negligence or negligence resulting in harm to or the death of a patient”); and 4. A.R.S. § 32-1401(27)(ss) (“Prescribing, dispensing or furnishing a prescription medication . . . to a person unless the licensee first conducts a physical examination of that person or has previously established a doctor-patient relationship”). 7. The legislature created the Board to protect the public.[7] Given Respondent’s errors in his prescribing practices of Patient A, failures to adequately monitor Patient A, and failure to appear for the hearing in Arizona, protection of the public requires that the Board revoke Respondent’s license to practice allopathic medicine in Arizona. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board revoke License No. 12231 for the practice of allopathic medicine in Arizona previously issued to Respondent Reynaldo Adrillana de Los Angeles, M.D. 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 6, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Patricia McSorley, Interim Acting Executive Director Arizona Medical Board

----------------------- [1] See the NBMS Agreed Settlement, the Board’s Exhibit 3 at 2 ¶ 5. [2] See the Board’s Exhibit 9. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.R.S. § 32-1451. [5] See A.R.S. § 41-1092.07(G)(2); A.R.S. § 32-1451.04. [6] Black’s Law Dictionary at 596 (8th ed. 1999). [7] See Laws 1992, Ch. 316, § 10.

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