ALJDEC decisions subject to certification as final

14A-1425B-POD · Board of Podiatry Examiners · 2015-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 2015, at 8:00 a.m.; the record was held open until April 28, 2015, for receipt of the court reporter’s transcript. APPEARANCES: The Arizona Board of Podiatry Examiners was represented by John R. Tellier, Esq., Assistant Attorney General; Respondent Kelvin Crezee was represented by Bruce D. Crawford, Esq., Crawford & Kline, PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Board of Podiatry Examiners (“the Board”) is the duly constituted authority for licensing and regulating the practice of podiatry in the State of Arizona. 2. Kelvin Crezee, DPM (“Dr. Crezee”) is the holder of License No. 0328 for the practice of podiatry in the State of Arizona. 3. The Board referred this matter to the Office of Administrative Hearings, an independent state agency, pursuant to A.R.S. § 41- 1092.02(A) for an evidentiary hearing. 4. On November 24, 2014, the Board issued a Complaint and Notice of Hearing charging that Dr. Crezee had engaged in unprofessional conduct as defined in A.R.S. § 32-854.01(21) by failing to comply with a May 12, 2014 Consent Agreement. The Complaint and Notice of Hearing specifically alleged that Dr. Crezee had failed to submit to the Board his plan for completing an instructional course in wrong-site surgery on or before June 8, 2014, thereby furnishing cause to discipline his license under A.R.S. § 32-852(6). 5. A hearing was held on April 14, 2015. The Board submitted thirteen exhibits and presented the testimony of Sarah Penttinen, its Executive Director. Dr. Crezee submitted twenty-three exhibits and testified on his own behalf. Additional Hearing Evidence The July 16, 2013 Consent Agreement and Order of Non-Disciplinary Action in Case No. 11-09-M

6. Dr. Crezee has been practicing podiatry for 28 years and is board- certified. He has a private practice in Ahwatukee and also conducts weekly clinics to teach the residents at the Veterans’ Administration (“VA”) Hospital in Phoenix. Dr. Crezee explained that the residents are full-fledged, licensed physicians. In the past, he has been the director of the Phoenix VA Hospital’s podiatry program. 7. On or about December 11, 2009, Dr. Crezee performed surgery on a patient who had been diagnosed with bilateral pathology.[1] Although both feet would eventually require surgery, after consultation, Dr. Crezee agreed that he would perform surgery on the patient’s left foot first so that he would be able to stand after the surgery. 8. Dr. Crezee testified that the patient was brought into surgery in a supine position and then turned over to the prone position. The operating staff draped and prepared the right foot. After the procedure was initiated, Dr. Crezee realized that he was operating on the right foot instead of the left foot. Dr. Crezee continued the procedure on the right foot and concluded the procedure with no further incident or complications. 9. After surgery on the patient’s right foot was successfully concluded, the patient filed a malpractice claim against Dr. Crezee. Dr. Crezee authorized his malpractice insurer to settle the claim. 10. Dr. Crezee explained that the facility where he performed the surgery was new and that although he did not feel that he was fully responsible for the error that resulted in the patient’s pathology being corrected first in his right foot rather than in his left foot, Dr. Crezee authorized settlement because he was the “captain of the ship” and “the buck stops here.”[2] His malpractice insurer reported the settlement to the Board. 11. Dr. Crezee explained to the Board what had happened with the patient and described the changes that he had made to his practice that would prevent him from making a similar mistake in the future. 12. On or about July 16, 2013, Dr. Crezee and the Board entered into a Consent Agreement and Order of Non-Disciplinary Action in Case No. 11- 09-M (“the original Consent Agreement”)[3] in which the parties agreed that Dr. Crezee’s care of the patient “constitute[d] grounds for non- disciplinary action” against his license pursuant to A.R.S. § 32- 852(6),[4] specifically A.R.S. § 32-854.01(20).[5] The original Consent Agreement required Dr. Crezee to do the following: 1. [Dr. Crezee] shall conduct an instruction course for members of the medical profession regarding wrong-site surgery. The course shall be at least one hour in length.

2. Within forty-five (45) days of the effective date of this agreement, [Dr. Crezee] shall submit to the Board an instruction plan containing the proposed content of the instruction course and the specific intended audience. The Board must provide affirmative approval of such.

3. [Dr. Crezee] must complete the instruction course within six (6) months of the effective date of this agreement.[6]

The effective date of the original Consent Agreement was July 22, 2013. 13. On September 5, 2013, Dr. Crezee sent an email to Ms. Penttinen to which he attached a course outline for “Anatomy of a Sentinel Event: Wrong Site Surgery.”[7] 14. Although the original Consent Decree only required Dr. Crezee to conduct the course once, in the September 5, 2013 email, he proposed to conduct the course on three occasions in three locations: (1) The Tucson VA Hospital; (2) The University of Cincinnati Hospital in Ohio; and (3) The Civic Kern Reunion Seminar in Florida. 15. Dr. Crezee testified that although he set up the course to be presented at the Tucson VA Hospital, circumstances required the Tucson course to be cancelled. 16. Dr. Crezee never heard back from Ms. Penttinen about whether his proposed course content and intended course audiences were acceptable to the Board. Ms. Penttinen acknowledged that the Board accepted Dr. Crezee’s proposed course content. 17. Dr. Crezee became concerned because the time that he was required to complete the course presentation was passing. Dr. Crezee therefore called the Board’s president, Joseph Leonetti, DPM, to talk about the Board’s requirements for complying with the original Consent Agreement. Dr. Crezee explained that he did not know that he was doing anything wrong and that Dr. Leonetti did not say that he should not talk to Dr. Crezee about the matter. 18. Dr. Leonetti said that the Board preferred that Dr. Crezee make the presentation in Arizona and suggested that he might make the presentation to the residents at the VA Hospital in Phoenix. 19. Ms. Penttinen testified that Dr. Leonetti should not have spoken directly to Dr. Crezee and, instead, should have referred Dr. Crezee to her. 20. On January 11, 2014, Dr. Crezee presented the course on wrong-site surgery at his home to residents from the podiatry clinic at the VA Hospital in Phoenix. Dr. Crezee testified that he did not make the presentation at the VA Hospital because there were too many distractions and he would lose a certain percentage of the residents if he scheduled the event at his home at a time that most of the residents should be available. Dr. Crezee testified that all of the residents but one attended the January 11, 2014 presentation. 21. Some of the residents’ spouses asked to attend the January 11, 2014 presentation. Dr. Crezee testified that he allowed spouses to attend because their partners’ surgical errors could impact them, but that the spouses’ presence did not detract from or change his course presentation. 22. Dr. Crezee testified that although he served snacks, he did not serve liquor and that the only matters discussed were the course materials. Dr. Crezee testified that the course lasted an hour, but some of the residents stayed afterwards to ask questions and to have further discussion. 23. On or about February 4, 2014, Dr. Crezee’s attorney sent an email to Ms. Penttinen to which he attached the residents’ completed Lecture Evaluation Forms of the January 11, 2014 course.[8] 24. At the Board’s April 9, 2014 meeting, it considered whether Dr. Crezee had complied with the original Consent Agreement by presenting the course on wrong-site surgery to VA Hospital residents and their spouses at his home on January 11, 2014. Dr. Crezee attended the meeting with his attorney. 25. At the April 9, 2014 meeting, the Board expressed concerns that the January 11, 2014 course did not fulfill the requirements of the original Consent Agreement because the Board had not approved the location or the audience. May 14, 2014 Amendment to Consent Agreement in Case No. 11-09-M

26. At the April 9, 2014 meeting, Dr. Crezee and his attorney agreed that Dr. Crezee would present the course a second time to an audience and at a location that the Board approved. The Board suggested that Dr. Crezee should present the course at Midwestern University’s Arizona School of Podiatric Medicine as part of its monthly Grand Rounds lecture series. 27. On or about May 12, 2014, the Board and Dr. Crezee agreed to an Amendment to the original Consent Agreement (“the amended Consent Agreement”). The amended Consent Agreement amended paragraphs (1) and (2) of the original Consent Agreement as follows: “[Dr. Crezee] is permitted until October 9, 2014 to complete the one-hour instruction course required under the original agreement. No later than June 8, 2014, [Dr. Crezee] must submit to the Board his plan for completing the instruction course which shall include information regarding the intended venue / location and intended audience. The venue / location must be within the greater Phoenix, Arizona metropolitan area.”[9]

28. From early May 2014, through July 11, 2014, Dr. Crezee corresponded with personnel at Midwestern University’s Arizona School of Podiatric Medicine regarding available dates in the Grand Rounds lectures on which he could present his course on wrong-site surgery.[10] Dr. Crezee also confirmed that the course would be available to any Arizona podiatrist who wished to attend. On June 30, 2014, Dr. Crezee and Midwestern University agreed that the best available date for the presentation would be September 3, 2014. 29. Dr. Crezee testified that his parents both live approximately one hour away from him. During the summer of 2014, his mother developed a terminal illness. Dr. Crezee testified that in June 2014, he was trying to be his mother’s caregiver and to financially, medically, and legally support his parents. Dr. Crezee testified that due to the distraction of his parents’ needs, he failed to apprise the Board of the status his plans for the wrong-site surgery course at Midwestern University. Dr. Crezee noted that previously, the Board had asked his attorney to avoid submitting case materials piecemeal.[11] The Board’s Complaint in Case No. 14-25-M

30. On or about July 16, 2014, Dr. Crezee’s attorney sent a letter to Ms. Penttinen to apologize for the oversight in not providing the plans for the course by June 8, 2014. Dr. Crezee’s attorney submitted the course outline that Dr. Crezee had previously provided on September 5, 2013, and informed Ms. Penttinen that Dr. Crezee would present the course on September 3, 2014, at Midwestern University and that all of the podiatrists in the Phoenix area would be invited to attend.[12] 31. On or about July 22, 2014, Ms. Penttinen sent a letter to Dr. Crezee’s attorney stating that at the Board’s July 9, 2014 meeting, because it had determined that Dr. Crezee had violated the amended Consent Agreement by failing to submit a plan for presenting the course on wrong-site surgery by June 8, 2014, the Board opened a new complaint to investigate Dr. Crezee’s violation of the amended Consent Agreement.[13] Ms. Penttinen’s letter informed Dr. Crezee’s attorney that his response to the complaint in Case No. 14-25-M would be due on August 4, 2014. 32. On or about July 22, 2014, Ms. Penttinen send a second letter to Dr. Crezee to inform him that the Board had completed its investigation in Case No. 14-25-M and would consider the matter at its August 13, 2014 meeting.[14] 33. On or about July 31, 2014, Dr. Crezee sent a response in Case No. 14- 25-B to Ms. Penttinen, again informing her that he would present the required course on September 3, 2014, at Midwestern University’s Grand Rounds and apologizing that he had failed to resubmit the course materials that the Board had previously approved by June 8, 2014.[15] Dr. Crezee again provided the course materials and the list of podiatrists in the Phoenix area who were routinely invited to Grand Round events. 34. On or about August 1, 2014, Dr. Crezee’s attorney sent a letter to Ms. Penttinen, pointing out that her two July 22, 2014 letters were inconsistent and that because it was not appropriate for the Board to consider whether Dr. Crezee had violated the amended Consent Agreement until after October 9, 2014, the deadline for presenting the course, requesting that Case No. 14-25-B be removed from the August agenda as premature.[16] 35. On or about August 1, 2014, Dr. Crezee’s attorney sent a second letter to Ms. Penttinen stating that he had approached Ms. Penttinen informally before the July 16, 2014 board meeting and informed her that the course was scheduled at Midwestern University on September 3, 2014, and that he was waiting for all the necessary documentation so that it could be submitted in one package.[17] 36. Ms. Penttinen testified that the second August 1, 2014 letter was not accurate. Ms. Penttinen testified that after the Board voted to open a new complaint and to refer the matter for formal hearing at the July 16, 2014 meeting, she was no longer involved in the process. Ms. Penttinen acknowledged that she is the Board’s only employee and that it has no other administrative staff. 37. On or about August 4, 2014, Ms. Penttinen prepared her Complaint Investigation Report in Case No. 14-25-B, and concluded that Dr. Crezee had committed unprofessional conduct under A.R.S. §§ 32-852 and 32-854.01(21) by failing to comply with the amended Consent Agreement.[18] 38. On or about August 7, 2014, Dr. Crezee’s attorney sent a letter to Ms. Penttinen requesting that Case No. 14-25-B be continued to the Board’s September 2014 meeting because both of Dr. Crezee’s parents were ill and his mother was not expected to live for more than a few days.[19] 39. The Board met on August 13, 2014. The Board’s agenda and minutes did not include any agenda item or discussion of whether Dr. Crezee had complied with the amended Consent Agreement or the complaint in Case No. 14-25-B.[20] 40. On August 21, 2014, Dr. Crezee’s attorney sent a letter to Ms. Penttinen alleging that he had asked to her place on the agenda for the Board’s August meeting Dr. Crezee’s substantial compliance with the amended Consent Agreement.[21] Dr. Crezee’s September 3, 2014 Course on Wrong-Site Surgery at Midwestern University

41. On or about August 21, 2014, Ms. Penttinen sent an email to Dr. Crezee’s attorney to confirm that the September 3, 2014 course at Midwestern University had been solidified.[22] On that same date, Dr. Crezee’s attorney sent a letter to Ms. Penttinen to confirm that the course was going forward.[23] 42. On September 3, 2014, Dr. Crezee presented the course on wrong-site surgery at Midwestern University as part of its Grand Rounds lecture series. On September 4, 2014, Dr. Crezee’s attorney sent Ms. Penttinen copies of the course evaluations and a letter from Jeffrey C. Page, DPM, the Director of the Arizona School of Podiatric Medicine, praising the course.[24] 43. The Board’s current president attended the September 3, 2014 presentation and obtained handouts from the seminar.[25] 44. The Board did not dispute that except for Dr. Crezee’s failure to submit his plans for the wrong-site surgery course to the Board by June 8, 2014, Dr. Crezee’s September 3, 2014 presentation of the wrong- site surgery course complied with the amended Consent Agreement. CONCLUSIONS OF LAW 1. The Board has jurisdiction to decide the merits of this complaint. 2. The Board bears the burden to establish by a preponderance of the evidence that Dr. Crezee engaged in unprofessional conduct as defined in A.R.S. § 32-854.01 and that he is subject to disciplinary action pursuant to A.R.S. § 32-852(6),[26] as well as any factors in aggravation of the penalty.[27] Dr. Crezee bears the burden to establish any factors in mitigation of the penalty.[28] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[29] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[30] 4. A.R.S. § 32-854.01(21) defines unprofessional conduct to include “[v]iolating any formal order, probation or stipulation issued by the board pursuant to this chapter.” Dr. Crezee acknowledged that he did not submit to the Board his plan for completing the wrong-site surgery course, including the intended location and audience, by June 8, 2014, as the amended Consent Order required. Therefore, Dr. Crezee committed unprofessional conduct as defined by A.R.S. § 32-854.01(21). 5. Dr. Crezee established that he provided the course content to the Board on September 5, 2013 and that he agreed to present the course as part of the Grand Rounds lecture series at Midwestern University at the April 9, 2014 Board meeting. Dr. Crezee also established that as of June 8, 2014, he was working with his contact at Midwestern University to select a date for the course and to ensure that licensees in the Phoenix metropolitan area received notice of the course. 6. Dr. Crezee did not establish that he informed the Board or Ms. Penttinen before the July 16, 2014 Board meeting that he was close to finalizing plans for the September 3, 2014 course at Midwestern University. Dr. Crezee should have requested a brief extension of the June 8, 2014 deadline in the amended Consent Agreement before it passed. 7. The Board acknowledged that on September 3, 2014, Dr. Crezee presented a course on wrong-site surgery at Midwestern University that complied with the amended Consent Agreement, except that he did not submit all of his plans for the course on or before June 8, 2014. 8. “The goals and objectives of the state board of podiatry examiners are to help assure the competency of podiatrists and prevent conduct on their part which would tend to do harm to the health and well-being of the public.”[31] Although Dr. Crezee technically violated the amended Consent Agreement, his violation did not harm the public and does not reflect incompetence. The Board did not establish that Dr. Crezee’s failure to comply with the June 8, 2014 deadline was due to anything more than inadvertence and his preoccupation with his parents’ serious illnesses. 9. It does not appear that Dr. Crezee cannot be regulated or even that he resists regulation. The evidence at hearing indicated that Dr. Crezee’s unprofessional conduct was “not of sufficient seriousness to merit censure, probation or suspension or revocation of a license.”[32] ORDER In light of the foregoing, it is recommended that the Board file a letter of concern regarding Dr. Crezee’s acknowledged unprofessional conduct pursuant to A.R.S. § 32-852.01(L). 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, May 7, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Sarah Penttinen, Executive Director Board of Podiatry Examiners ----------------------- [1] See Dr. Crezee’s Exhibit 1 at 3, ll. 19-20. [2] Reporter’s Transcript at 143, ll. 14-19. [3] See the Board’s Exhibit 3 and Dr. Crezee’s Exhibit 1 at 4. [4] A.R.S. § 32-852(6) includes among the grounds for revocation or suspension of a license that the licensee “is guilty of unprofessional conduct as defined in section 32-854.01” [5] A.R.S. § 32-854.01(20) includes among the definitions of unprofessional conduct “[a]ny conduct or practice that is or might be harmful or dangerous to the health of the patient.” [6] Dr. Crezee’s Exhibit 1. [7] See Dr. Crezee’s Exhibit 2. [8] See the Board’s Exhibit 4 and Dr. Crezee’s Exhibit 3. [9] The Board’s Exhibit 5 and Dr. Crezee’s Exhibit 5. [10] See Dr. Crezee’s Exhibit 8. [11] See Dr. Crezee’s Exhibit 14. [12] See the Board’s Exhibit 6. [13] See the Board’s Exhibit 7. [14] See Dr. Crezee’s Exhibit 7 at 3. [15] See the Board’s Exhibit 8, Dr. Crezee’s Exhibit 4A. [16] See Dr. Crezee’s Exhibit 9. [17] See the Board’s Exhibit 9. [18] See the Board’s Exhibit 11. [19] The Board’s Exhibit 12. [20] See Dr. Crezee’s Exhibits 19, 20, and 21. [21] See Dr. Crezee’s Exhibit 15. [22] See Dr. Crezee’s Exhibit 10. [23] See Dr. Crezee’s Exhibit 15. [24] See Dr. Crezee’s Exhibit 13. [25] See Dr. Crezee’s Exhibit 12. [26] A.R.S. § 32-852(A)(6) provides in relevant part that “[t]he board, after notice and a hearing, may suspend [or] revoke . . . a license upon proof against the . . . licensee . . . [t]hat he is guilty of unprofessional conduct as defined in section 32-854.01.” [27] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [28] See A.A.C. R2-19-119(B)(2). [29] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [30] Black’s Law Dictionary at page 1220 (8th ed. 1999). [31] Laws 1982, Ch. 202 § 1. [32] A.R.S. § 32-852.01(L).

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