ALJDEC decisions subject to certification as final

14A-DO13-0203A-OST · Arizona Board of Osteopathic Examiners In Medicine and Surgery · 2015-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2015; the record was held open until February 13, 2015, to allow the Administrative Law Judge to have the benefit of the court reporter’s transcript in making her recommendation. APPEARANCES: Applicant Lynn Sweet, D.O. (“Dr. Sweet”) was represented by James M. Marovich, Esq., The Marovich Law Firm, PLC; the Arizona Board of Osteopathic Examiners in Medicine and Surgery (“the Board”) was represented by Jeanne Galvin, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure A.R.S. §§ 32-1800 to 32-1871 empower the Board to regulate the licensing and practice of osteopathic medicine in the State of Arizona. On or about July 1, 1997, the Board issued to Dr. Sweet License No. 3246 for the practice of osteopathic medicine in the State of Arizona. On or about August 10, 2010, the Board issued Interim Findings of Fact, Conclusions of Law, and Order for Summary Suspension of Dr. Sweet’s License No. 3246.[1] On or about January 26, 2011, the Board revoked License No. 3246 in Case No. DO-10-0001A based on Dr. Sweet’s unprofessional conduct between February 2008, and December 2009, in his treatment of five patients, two of whom had died while under his care. The Board concluded that Dr. Sweet had committed the following unprofessional conduct in his care of the patients: 1. “Engaging in the practice of medicine in a manner that harms or may harm a patient or that the board determines falls below the community standard” under A.R.S. § 32-1854(6) by failing to perform physical examinations, failing to obtain medical records, failing to perform laboratory tests and to follow up on care, failing to refer complex patients to appropriate specialists, and prescribing pain medications without first conducting a complete physical examination and diagnostic testing; 2. “Prescribing or dispensing controlled substances or prescription- only medications without establishing and maintaining adequate patient records” under A.R.S. § 32-1854(36) by prescribing controlled substances to all five patients without establishing and maintaining adequate patient records; 3. “Any conduct or practice that endangers a patient's or the public's health or may reasonably be expected to do so” under A.R.S. § 32- 1854(38) by failing to perform urine drug screens when appropriate, failing to perform laboratory testing to determine how patients were responding to pain medications that they had been taking for extended periods and to determine whether the medications were adversely impacting liver and kidney function, and when a patient’s laboratory tests indicated elevated liver enzymes, failing to address the abnormality; and 4. “Conduct that the board determines constitutes gross negligence, repeated negligence or negligence that results in harm or death of a patient” under A.R.S. § 32-1854(44) in his treatment of the two patients who had died, both of whom were complex patients who had received large quantities of addictive medications for long periods of time, one of whom had died of an Oxycodone overdose and other who had committed suicide through a sertraline overdose.[2] Although Dr. Sweet appealed the Board’s revocation of his license to superior court, the court dismissed his appeal after he failed to file an opening brief.[3] On or about September 18, 2013, Dr. Sweet submitted a completed Osteopathic Medicine & Surgery License Application in which he disclosed his disciplinary history.[4] Dr. Sweet included a narrative in the application. He explained that his sister had committed suicide after medical professionals had treated her as a drug-seeker rather than prescribing medications that could have provided relief from her severe, recurrent migraine headaches.[5] Dr. Sweet explained: Having worked as a physician many hours in emergency rooms and urgent cares I understand that [chronic pain] patients are the ones no one wants to treat. They often have no real verifiable physical finding and you have to spend extra time to go thru the history as well as the historical and current symptoms. Then you are left with a difficult choice based on limited information. However, a number of these patients, like my sister, are exactly as they present and are often quickly dismissed as a drug seeking patient, given non-narcotic medications and released regardless of level of relief. It is an ongoing tragedy that was made most apparent and personal to me. . . .

However, narcotics are a double edged sword. They can offer much needed relief to one patient and may be a deadly weapon to the next patient. Narcotics are a significant cause of death in the US today. Physicians are tasked with making difficult decisions. In my case, I should have shared the responsibility by engaging a team chosen by me representing the appropriate specialties to screen the patients and create treatment plans.

Since my license has been revoked I spent considerable time studying state and federal controlled substances laws as well as my CME’s and review of safe pain management practice guidelines. . . .[6]

Dr. Sweet disclosed in his narrative that since the Board revoked License No. 3246, he had completed 71 hours of Continuing Medical Education (“CME”), that he had completed and an evaluation and medical records course through the Center for Personalized Education for Physicians (“CPEP”) in Denver, Colorado, that he had read the book, Responsible Opioid Prescribing by Scott Fishman, MD, and that he had reviewed in detail the DEA guidelines for spotting signs of abuse.[7] Dr. Sweet concluded his narrative as follows: I understand my role in primary care in chronic pain is to act as a facilitator to get the patient to the proper specialists required based on their unique problem sets. This involves referring the patients to orthopedics, rheumatology, neurology, pain management and other specialties. Occasionally, it may be appropriate to provide a brief bridge of medication because of reasonable specialist scheduling issues. But the primary care role is to cover the entire patient’s health issues and seek team assistance for issues that are not normally handled in a primary care setting.[8]

On or about September 26, 2014, the Board’s executive director sent a letter to Dr. Sweet, notifying him that the Board had determined to deny his license application.[9] Dr. Sweet appealed the denial.[10] The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on January 29, 2015. Dr. Sweet submitted four exhibits, testified on his own behalf, and presented the testimony of Leonard Glass, M.D., the founder and president of the Physician Retraining & Reentry program (“PRR”) that he operated in collaboration with the University of California at San Diego School of Medicine (“UCSD”). The Board submitted fourteen exhibits and presented the testimony of Stanley Brysacz, D.O., its consulting expert, Holly Elgas, M.D., the Staff Associate Medical Director of Assessment Services at CPEP, and Jenna Jones, the Board’s Executive Director. Hearing Evidence The August 2013 CPEP Assessment Dr. Sweet enrolled in CPEP at the Board’s suggestion after he withdrew an earlier license application that the Board indicated it would deny at its May 18, 2013 meeting.[11] In August 2013, approximately one month before Dr. Sweet submitted the license application at issue, he underwent a CPEP Assessment. The assessment found significant weaknesses in Dr. Sweet’s medical knowledge in the areas of pharmacology and preventative health, especially his limited knowledge of the side effects of antihypertensive medications and opioid medications, including the risks of opioid medications when used in conjunction with benzodiazepines and the increased risk of abuse from short- acting opioid medications.[12] The CPEP Assessment also noted limitations in Dr. Sweet’s knowledge of other topics common in family medicine, citing his score of 56% on a multiple choice test on family medicine.[13] With respect to Dr. Sweet’s Clinical Judgment and Reasoning, the CPEP Assessment noted that “[h]is discussions would occasionally become tangential and off subject,” that he “did not appear to have a logical approach to the evaluation and disposition of high-acuity conditions,” and that “[h]e appeared to vacillate on whether or not to recommend a hypothetical patient with chest pain be sent to the emergency room as opposed to an outpatient evaluation by cardiology.”[14] The CPEP Assessment noted the following specific inadequacies in Dr. Sweet’s prescribing of controlled substances: When discussing a hypothetical 30 year-old patient with symptoms of inattention, Dr. Sweet did not inquire about current or past illicit substance use. He appeared slow to recommend ordering a urine drug screen. If the urine drug screen showed the presence of marijuana, Dr. Sweet reported that he would go ahead and prescribe Ritalin and recommend the patient get a medical marijuana certification elsewhere. The consultant disagreed with initiating a controlled substance in a patient using marijuana. In another scenario, Dr. Sweet reported that he would prescribe a benzodiazepine when requested to do so by the patient in a scenario involving anxiety. Dr. Sweet did not appear to consider the other controlled substances the hypothetical patient was reported to be taking or appear to consider the patient’s request as a concerning behavior. This same hypothetical patient was taking high doses of three opioid medications; while Dr. Sweet appropriately reported that the goal would be to wean her dosages down, he did not appear to be concerned by such prescribing with the diagnosis of fibromyalgia. If this hypothetical patient were also using marijuana regularly, Dr. Sweet stated that as long as the patient had a certification for medical marijuana, he would continue prescribing opioid medications. The consultant disagreed and commented that Dr. Sweet did not appear to recognize the high risk for addiction presented in the scenario. These cases were also examples of Dr. Sweet not recommending treatment plans that would prevent iatrogenesis from medications.[15]

With respect to Dr. Sweet’s Physician-Patient Communication Evaluation, the CPEP Assessment noted that he demonstrated a few strengths in his interactions with Simulated Patients (“SPs”), including that he was polite and that his tone was casual and conversational. The CPEP assessment also noted multiple areas for potential improvement, including the following: In the first two interviews, Dr. Sweet entered the exam room without knocking. He read the SPs’ names form the chart, and after taking his seat, appeared to read the chart for the first time. He used the chief complaint to pose the initial question, which was followed by closed-ended questions. However, this did not allow the SPs to tell their full stories. The interviews did not have a logical structure and were disjointed. The communication consultant opined that Dr. Sweet appeared to lose focus on the SPs’ chief complaints. His eye contact improved as the encounters progressed, but Dr. Sweet frequently disengaged from the SPs to make or to consult his notes. He did not engage the SPs during the physical exams and left them on the exam table when he returned to his chair. Patient education was brief. The SPs noted little empathy. The communication consultant opined that Dr. Sweet appeared disinterested in the SPs and lacked confidence.[16]

As a result of the CPEP assessment, the evaluators recommended that Dr. Sweet should participate in a clinical setting with 100% supervision initially, that he establish a relationship with an experienced educational preceptor in family medicine, and that he undertake a communications course or coaching from a preceptor, communications professional, or experienced colleague that included simulated or observed patient encounters.[17] Dr. Sweet testified that he disagreed with the results of the CPEP assessment, but that he agreed to go along with it. The Board’s Suggestions for Re-Licensure and Dr. Sweet’s Rehabilitation Efforts As a result of the Board’s discussion at its January 25, 2014 meeting, under the authority of A.A.C. R4-22-212(C)(1),[18] the Board requested additional information and documentation, specifically that Dr. Sweet enroll in and successfully complete a residency or locate and establish a preceptorship that was pre-approved by the Board’s Executive Director.[19] Dr. Sweet testified that he is 58 years old and unlicensed. There are approximately 150 graduates of osteopathy programs in Arizona every year and only about 12 residencies. There are not enough residency slots for graduating students. Dr. Brysacz agreed that a residency probably was not a viable option for Dr. Sweet. Dr. Sweet testified that he had not committed any unprofessional conduct since his license was revoked in January 2011.[20] Dr. Sweet testified that since 2011, he has taken extensive in-person and online CME, including the CPEP class on medical record-keeping, and the Board’s class on safely writing narcotic prescriptions and managing the care of patients to whom narcotics had been prescribed. Dr. Sweet testified that he has tried to follow the Board’s recommendations for licensure. The CPEP evaluation cost $8,000.00. On or about March 26, 2014, CPEP recommended a 12-18 month reentry plan that included a preceptor who was approved through CPEP.[21] Dr. Sweet testified that he has tried unsuccessfully to obtain the Board’s Executive Director’s and the Board’s approval of a preceptor. Dr. Sweet testified that initially he proposed as a preceptor Dr. Ameerally, who practiced family medicine in Mesa but was board-certified in another area of practice. Dr. Sweet testified that because Dr. Ameerally was not board-certified in family medicine, he was not acceptable to the Board. Dr. Sweet testified that he next proposed Dr. Johnson, who was Board-certified in internal medicine, but the Board denied his request to approve Dr. Johnson as Dr. Sweet’s preceptor. Dr. Sweet testified that he next proposed as his preceptor Raymond Schneider, D.O., who has a family practice/urgent care practice. Dr. Sweet testified that the Board declined to approve Dr. Schneider because he was too old. Dr. Sweet submitted the transcript of the Board’s July 19, 2014 interview, at which various Board members discussed their concerns about Dr. Sweet’s possible preceptorship under Dr. Schneider: DR. WARD: Part of my concerns with Dr. Schneider is he is board-certified for life. He did not complete a residency. He finished his training in the mid-1970s or late 1970s. I think that if we are going to go down that road of precepting or approving a program that includes a preceptor, I would prefer it be someone who had proximity of training with residency training . . . .[22] . . . .

DR. SWEET: Okay. Can I ask, is the concern that he hasn’t – he has been practicing for a long time? Is that the concern?

DR. WARD: No. It’s just that he is in a limited practice situation. He is working in an urgent care. He does not have proximity of training, and he has only completed an internship. He is forever board certified. He has not had to pass through any gates to prove that his recency of knowledge is sufficient enough to take you under his wing, you who has significant deficiencies that you are going to meet to rehabilitate yourself as a physician and your knowledge and your clinical practice.

So if I was going to pick someone to guide you and precept you and help you achieve those hurdles that you have that were identified in the CPEP evaluation, I would not pick that guy. And so I would want someone that has some ability – has a proven ability to educate, a recency of training, and that has had to pass a recertification exam in the last 40 years, and he has not. . . .[23] . . . .

DR. WARD: Is this the kind of practice – an urgent care practice, is that the kind of practice that will help you become a primary care physician, a family physician?

DR. SWEET: Yes. I am familiar with this practice. Primarily it is a family practice. It is called an urgent care, but he does not have facilities for an ambulance or anything of that nature. It is what I would consider a family practice office, but it technically does say urgent care. So he accepts walk-in patients.

DR. STEINGARD: At this point, I am not comfortable with – based on what Dr. Ward’s comments are with using Dr. Schneider as your sole source of preceptor. I would suggest – my suggestion would be that we not approve that and ask you to look for a more comprehensive family medicine preceptor who maybe has a little more – a larger group involvement with some cardiology, some pulmonary. If there was someone out there that’s got a multispecialty clinic that would let you shadow them, I might consider maybe what [Executive Director Jones] said, which was a probation-type of license, like a probationary license.[24]

Dr. Sweet testified that CPEP accepted him into its educational program, but that he must be licensed to enter and complete the program. He has paid $3,000.00 for the educational plan and agrees to pay the $750.00/month charge for undertaking the program. However, he cannot start the program unless the Board issues a license to him. Dr. Sweet testified that all three preceptors whom he has presented were unacceptable to the Board. Dr. Sweet testified that he went to Midwestern and A.T. Still Universities and obtained 12 to 15 names of doctors who were potential preceptors. Dr. Sweet testified that although he called all the doctors, none were willing or able to act as his preceptor. Dr. Sweet testified that he is willing to let CPEP pick his preceptor for Ms. Jones’ approval. Dr. Sweet testified that he is willing to accept any license restrictions that the Board chooses to impose, including 7 to 10 years of probation with a prohibition on prescribing opioids, but that the Board has not provided him with any options to achieve licensure. At the Board’s September 20, 2014 meeting, a motion was made to grant Dr. Sweet a probationary restricted license for a term of seven or eight years, or until the Board lifted the probation, that would not allow him to prescribe opioids and benzodiazepines, on the conditions that he complete the PRR course at UCSD, employ a practice monitor whom the Executive Director approved, complete the CPEP educational program, and practice under a preceptor whom CPEP and the Executive Director approved. The motion failed, 3-4.[25] A motion then was made to deny Dr. Sweet’s license application outright. The motion unanimously passed, with five in favor and two abstentions.[26] Additional Hearing Testimony Dr. Sweet testified that no one at CPEP or on the Board has said that he is uneducable, yet the Board refused to grant his license application under any conditions. During Dr. Sweet’s direct examination, he referred to the Board’s various deliberations about his license application, which he characterized as continually changing the requirements for licensure. Dr. Sweet also complained about Board member Dr. Cunningham’s discussion of the case that resulted in the 2011 revocation, in relevant part as follows: Oh, he brought up – and I thought this was dirty and underhanded. Dr. Cunningham brought up, [“] oh there was two deaths.” Well, this is ridiculous. I mean, how many doctors haven’t had a death, the patient died? I had nothing to do with the death of those patients. These patients were found by somebody that worked at City Group who was – went through medical records and found these patients and found that they died.

One died of a – she died off an overdose of Zoloft. I saw here like twice. I mean, I’ve practiced forever. I mean, since ’96. I never even heard of an overdose of Zoloft.

The other one was a narcotic overdose, but it was the patient was knocked out. It was murder.[27]

Dr. Sweet’s attorney argued that there had been no finding that Dr. Sweet caused the two patients’ death and that “[n]egligence is not causation.”[28] Dr. Brysacz testified that he has been an osteopathic physician in family practice since 1972. He is board-certified in family medicine. Dr. Brysacz is currently an assistant professor at A.T. Still University in Mesa.[29] Dr. Brysacz testified that he reviewed all the documents in this matter. Dr. Brysacz testified that Dr. Sweet committed egregious acts of unprofessional conduct, including improper prescribing of opioids in improper amounts or in combination with benzodiazepines and keeping improper records, which led the Board to revoke his license. Dr. Brysacz testified that the CPEP assessment concluded that Dr. Sweet lacked clinical judgment and noted his lack of empathy and limited eye contact in communicating with SPs. Dr. Brysacz testified restricting Dr. Sweet’s ability to prescribe opioids would not change the character that his poor choices reflected. Dr. Brysacz was not aware of the CPEP recommendations to remediate Dr. Sweet’s practice deficiencies. Dr. Brysacz testified that the PRR program at UCSD was excellent. Dr. Brysacz referred to the PRR brochure to note that it is a program for physicians who are currently licensed and noted that Dr. Sweet is not licensed.[30] Dr. Brysacz testified that the PRR would not sufficiently to remedy Dr. Sweet’s poor judgment and reasoning. Dr. Glass testified that PRR agreed to accept Dr. Sweet on the condition that he would not be allowed to take the final practical examination because he is unlicensed. Dr. Glass testified that he was aware of the reasons that Dr. Sweet’s license was revoked. Dr. Glass pointed out that Dr. Brysacz called the PRR an excellent program. The PRR only deals with seasoned physicians who have been practicing 10, 15, or 30 years. Physicians who complete the PRR program receive 175 hours of CME. Dr. Glass explained that during the PRR course, participating physicians undertake 15 courses through online modules and that each course takes three to six months. Dr. Glass testified that participants must successfully answer 450 multiple-choice questions and that if they do not know the answer, they must look it up. Dr. Glass testified that the PRR program covers everything but pediatrics, surgeries, anesthesia, and hospitalists. Cardiology, pulmonology, medical records, psychiatry, hematology, and dermatology are all covered. The PRR program hired first rate faculty members to write the course materials and tests. Dr. Glass opined that the Board’s criticism that PRR was an online program was misguided because the program produced seasoned physicians who went on to become successfully employed. Of the 15 physicians who had completed the program last year, 14 were employed. The one who was not employed had not worked as a physician for 20 years and was shadowing a practicing physician before reentering the profession. Dr. Glass testified that he respectfully disagreed with the Board’s refusal to accept Dr. Sweet’s completion of the PRR program as a condition of reentry into the profession. Dr. Glass testified that if the PRR program was the first step to reentry, and because Dr. Sweet could still be required to complete the CPEP course and to undergo a preceptorship, the Board should be even more comfortable in issuing Dr. Sweet a restricted, probationary license. Dr. Glass testified that although he had not seen the CPEP assessment, Dr. Sweet’s attorney had stated that his medical knowledge was significantly out-of-date. Dr. Glass assumed that Dr. Sweet’s clinical judgment, reasoning, and communication with patients were deficient. That did not change his opinions, however. Dr. Brysacz opined that even if completion of the PRR program was only the first step to rehabilitation and if the program was followed by the CPEP educational program and a preceptorship, it would not change his opinion that the Board should not license Dr. Sweet because Dr. Glass did not believe that the programs would change Dr. Sweet’s behavior. Dr. Brysacz testified that if the CPEP program is designed to change physicians’ behaviors, he would like to know the program’s statistics for success. The Board did not have available statistics for outcomes in the CPEP educational program. Dr. Elgas testified that CPEP is a nonprofit organization that provides competency evaluations and assessments for physicians who are doctors of osteopathy or medical doctors. Dr. Elgas testified that physicians are often referred by their state licensing boards or hospitals, although physicians who have been out of practice for a long time may self-refer. Dr. Elgas was not involved in the educational side of CPEP. Dr. Elgas signed the CPEP Assessment Report for Dr. Sweet.[31] Dr. Elgas testified that because Dr. Sweet said that he had been out of practice since 2010, CPEP was not able to review his charts and that the heart of the assessment was Dr. Sweet’s three 90-minute interviews with three different consulting family practice physicians. Dr. Elgas testified that although she did not meet with the consultants before they prepared their reports, she was present for all of the interviews. Dr. Elgas testified that the assessment showed that Dr. Sweet had a basic fund of medical knowledge, but also had substantial gaps or knowledge that was out-of-date.

Dr. Elgas testified that that the CPEP Assessment Report also considered 150 multiple choice questions, on which Dr. Sweet’s score of 56% correct was lower than expected. Dr. Elgas testified that although Dr. Sweet demonstrated strengths in a few areas of the Physician-Patient Communication Evaluation, overall, the assessment was concerning. Dr. Elgas testified that Dr. Sweet lacked the organized, logical approach that a physician needed to assess the acuity or seriousness of a patient’s illness. Dr. Elgas testified that Dr. Sweet is a primary care physician in family practice and that an internal medicine practice differed from a family practice. CPEP felt it was appropriate for Dr. Sweet to be evaluated and mentored by physicians in family practice. Dr. Elgas acknowledged that the CPEP assessment did not find that Dr. Sweet was uneducable. Dr. Elgas testified that determining whether a physician can learn from past mistakes and change is difficult. Dr. Elgas testified that Dr. Sweet’s difficulty in determining when a patient needed to go to the emergency room and the consultant’s concerns about Dr. Sweet not being aware of red flags in the prescription of controlled substances showed a lack of clinical judgment. Dr. Elgas testified that Dr. Sweet’s patient skills were inadequate and that none of the SPs wanted to return to Dr. Sweet for follow up care. Dr. Elgas testified that Dr. Sweet will require supervision in his practice, but that clinical judgment can be hard to remediate. Ms. Jones testified that the Board expects her to consider whether the preceptor’s area of practice is the same as the preceptee’s before she approves a preceptor. Ms. Jones testified that the Board does not delegate to another organization, such as CPEP, selection of a preceptor and that the Board did not approve Dr. Schneider as a preceptor for Dr. Sweet because Dr. Schneider was not in family practice. Ms. Jones acknowledged that the Board never interviewed Dr. Schneider. / / / / / / / / / / / / CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction.[32] Dr. Sweet bears the burden of proof to establish that he meets statutory requirements to be issued a license to practice osteopathic medicine in the State of Arizona by a preponderance of the evidence.[33] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[34] 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.”[35] A.R.S. § 32-1822(6), (7), and (8) provide that an applicant for licensure must submit proof that he possesses the following history and personal characteristics: 6. Has not engaged in any conduct that, if it occurred in this state, would be considered unprofessional conduct or, if the applicant has engaged in unprofessional conduct, is rehabilitated from the underlying conduct.

7. Is physically, mentally and emotionally able to practice medicine, or, if limited, restricted or impaired in the ability to practice medicine, consents to contingent licensure pursuant to subsection E of this section or to entry into a program prescribed in section 32-1861.

8. Is of good moral character.

A.R.S. § 32-1822(D) provides that “[t]he board may deny a license for any unprofessional conduct that would constitute grounds for disciplinary action pursuant to this chapter or as determined by a competent domestic or foreign jurisdiction.” Because Dr. Sweet did not successfully appeal the Board’s revocation of his license in Case No. DO-10-0001A, his past unprofessional conduct as defined by A.R.S. § 32-1854(6), (36), (38), and (44) has been conclusively established. The only issue in this hearing on the Board’s denial of his license application is whether Dr. Sweet has taken appropriate steps to remedy past unprofessional conduct and has been rehabilitated. Dr. Sweet has undertaken substantial education and assessment; based on this record, he does not appear to be uneducable or incapable or rehabilitation. Once good character is shown to be absent, however, it is not automatically regained by the mere passage of time and positive and affirmative actions that are commensurate with the extent and severity of past misconduct are required for a person to regain what was lost. The issue of what constitutes good character or a lack thereof is nebulous at best. Former United States Supreme Court Justice Frankfurter noted: No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant . . . , a judgment of which it may be said as it was of "many honest and sensible judgments" in a different context that it expresses "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth." . . . [36]

Dr. Sweet credibly testified that he is willing to accept whatever terms the Board sees fit to impose to gain licensure. Dr. Sweet still has not accepted that he committed unprofessional conduct as defined by A.R.S. § 32-1854(44), even though the Board determined in its final decision in Case No. DO-10-0001A that his care of the two patients who died while under his care “constitute[d] gross negligence, repeated negligence or negligence that results in harm or death of a patient.” Even though the Board did not conclusively find that Dr. Sweet’s unprofessional conduct caused the patients’ deaths and no malpractice claim was filed against Dr. Sweet as a result, the Board’s decision on the standard of care is conclusive in this license application proceeding. The Arizona legislature created the Board “to promote the safe and professional practice of osteopathy in this state.”[37] The general purpose of a licensing proceeding “is to maintain sound professional standards of conduct for the purpose of protecting the public and the standing of the . . . profession in the eyes of the public.’”[38] Because a license to practice osteopathic medicine is a privilege, not a right, the Board is not required to issue a license to Dr. Sweet under even the most restrictive terms. Because Dr. Sweet has not established that he has taken full responsibility for his unprofessional conduct towards these two patients, he has not established that he is fully rehabilitated at this time. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board affirm its order denying the license application filed by Lynn Sweet, D.O. 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, February 24, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jenna Jones, Executive Director Arizona Board of Osteopathic Examiners in Medicine and Surgery ----------------------- [1] See the Board’s Exhibit 2 at 129, ¶ 3, ll. 3-16. [2] See the Board’s Exhibit 2 at 155-156 ¶¶ 3, 4, 5, and 6. [3] See the Board’s Exhibit 3. [4] See the Board’s Exhibit 1. [5] See id. at 8. [6] Id. at 9. [7] See id. [8] Id. at 9. [9] See the Board’s Exhibit 10. [10] See the Board’s Exhibit 11. [11] See Dr. Sweet’s Exhibit A at 16-17, ll. 21-17 (transcript). [12] See the Board’s Exhibit 4 at 171. [13] See id. at 172. [14] Id. at 174. [15] Id. at 174-175. [16] Id. at 176-177. [17] See id. at 168. [18] A.A.C. R4-22-212(C)(1) provides as follows: During the substantive review time-frame, the Board may make one comprehensive written request for additional information or documentation. The substantive review and overall time-frames are suspended from the postmark date on the comprehensive written request for additional information or documentation until the Board receives the additional information or documentation. [19] See the Board’s Exhibit 6 at 195. [20] Dr. Sweet may have misspoken because it does not appear that he would have been able to practice osteopathic medicine after the Board summarily suspended his license in August 2010. [21] See Dr. Sweet’s Exhibit D. [22] Dr. Sweet’s Exhibit B at 11, ll. 6-13. [23] Id. at 12-13, ll. 25-20. [24] Id. 14-15, ll. 25-21. [25] See Dr. Sweet’s Exhibit C at 29, ll. 5. [26] See id. at 31, l. 7. [27] Reporter’s Transcript at 52, ll. 6-20. The Board’s attorney objected to Dr. Sweet’s testimony because it misstated the Board’s Findings of Fact in Case No. DO-10-0001A. See id. at 52, ll. 21-25, 53-54, ll. 20-14. [28] Id. 54, ll. 19-21. [29] Dr. Brysacz’s curriculum vitae was submitted as the Board’s Exhibit 12. [30] See the Board’s Exhibit 14. [31] See the Board’s Exhibit 4 at 178. [32] See A.R.S. §§ 32-1803(A)(1) and (2); 32-1855. [33] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [34] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [35] Black’s Law Dictionary at page 1220 (8th ed. 1999). [36] Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 248, 77 S. Ct. 752, 761 (1957) (citation omitted; concurring opinion). [37] Laws 2002, Ch. 15, § 3. [38] Schillerstrom v. State Board of Chiropractic Examiners, 180 Ariz. 468, 470, 885 P.2d 156, 158 (App. 1994), review denied, December 20, 1994 (quoting Kaplan v. Department of Registration and Educ., 46 Ill. App. 3d 968, 5 Ill. Dec. 303, 308, 361 N.E.2d 626, 631 (1977) (citations omitted)).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826