ALJDEC decisions subject to certification as final

15A-25811-MDX · Arizona Medical Board · 2015-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 2015, at 9:00 a.m. APPEARANCES: The Arizona Medical Board (“the Board”) was represented by Carrie H. Smith, Esq., Assistant Attorney General; George F. Gwinn, MD (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Respondent is the holder of Board-issued License No. 25811 for the practice of allopathic medicine in the State of Arizona. 2. The Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 3. On January 14, 2015, the Board issued a Complaint and Notice of Hearing that alleged certain facts, based on those facts, charged Respondent with having committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(q) and (r), and provided notice of a hearing in the OAH on February 19, 2015, at 9:00 a.m. The Board sent the Complaint and Notice of Hearing by United States regular and first-class mail to Respondent at his address of record. 4. A hearing was held on February 19, 2015. The Board submitted seventeen exhibits and presented the testimony of four witnesses: (1) Aaron Vincent Riley, MD, an inpatient attending psychiatrist at Desert Visa Hospital, a behavioral health facility that is part of Maricopa Integrated Health System (“MIHS”); (2) Stephanie Markman, MD, the head of the family medical department at the Phoenix Indian Medical Center; (3) Michael Sucher, MD, the Board’s consultant on managing the practices of physicians with substance abuse and/or behavioral health issues; (4) Elle Steger, CMBI, the Board’s Investigator. 5. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed nineteen minutes to allow Respondent additional travel time, Respondent did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his medical license. Hearing Evidence 6. On December 3, 2014, Respondent was involuntarily admitted to MIHS’s Desert Vista Hospital for a court-ordered evaluation. Respondent’s associates had petitioned the court for the evaluation after he wandered away from his ex-wife’s house and two days later, police found him disoriented, without a shirt or shoes, waving at traffic. 7. Respondent appeared confused and paranoid and was uncooperative with treatment at Desert Vista Hospital. No evidence suggested that Respondent had ingested any substance that could produce symptoms that mimicked a mood disorder. Although he was provisionally diagnosed with bipolar disorder, he resisted that diagnosis and refused to accept a prescription for or to take psychotropic medication that could manage his behavioral health symptoms. Respondent was only agreeable to taking sedatives because he complained that he had been unable to sleep for several days. 8. Respondent was not determined to be Seriously Mentally Ill or eligible for the Arizona Health Care Cost Containment System, which is required for continued court-ordered treatment. On or about December 9, 2015, Respondent was discharged from Desert Vista Hospital with the recommendation that he follow up closely with a psychologist and psychiatrist. 9. Respondent never followed up with the psychiatrist to whom his treating psychiatrist at Desert Vista Hospital had referred him. 10. On or about December 8, 2014, MIHS filed a complaint against Respondent with the Board pursuant to A.R.S. § 32- 1451.[1] 11. On or about December 9, 2014, the Board sent Respondent a Notice of Investigation into MIHS’s complaint. 12. In December 2014, Respondent was a contract physician at the Phoenix Indian Medical Center. Respondent missed his scheduled December 4, 2014 clinic without providing any notice. Respondent appeared for his scheduled December 11, 2014 clinic, stating that he had been in the hospital. 13. On or about December 12, 2014, Respondent was given an Interim Consent Agreement for Practice Limitation that he was required to sign and return to the Board on or before December 15, 2014. Respondent did not return the Interim Consent Agreement for Practice Limitation and failed to cooperate with the Board’s staff’s numerous attempt to contact him. 14. On December 16 and 17, 2014, Board staff attempted to contact Respondent through his answering service, physician’s assistant, and office manager, but none of these individuals knew how to contact Respondent. 15. On December 17, 2014, the Board issued an Interim Order for Physician Health Program Assessment that required Respondent to undergo and successfully complete an assessment with the Board’s PHP contractor by no later than 3:00 p.m. on December 18, 2014. The Board served the Interim Order on Respondent by mail at his address of record and by facsimile at his office. Respondent failed to comply with the Board’s December 17, 2014 Interim Order. 16. On December 18, 2014, Respondent was late for his scheduled allergy clinic at the Phoenix Indian Medical Center and arrived wearing jeans and an untucked shirt and appearing disheveled, in contrast to his usual appearance. Respondent was agitated and not coherent. Respondent’s supervisor determined that he was not able to see patients and called security. Eventually, Respondent left with security, but slipped back in through a locked door. Security was called again, and Respondent left the Phoenix Indian Medical Center on foot. 17. On December 18, 2014, the Board sent a letter to Respondent at his street and email addresses of record, notifying him that on December 19, 2014, at 5:00 p.m., the Board would be considering a summary action against his license. 18. On December 19, 2014, Respondent’s supervisor at the Phoenix Indian Medical Center filed a complaint with the Board that Respondent had appeared impaired when he presented for his weekly allergy clinic and that his ability to deliver safe care to his patients appeared to be compromised. 19. On December 19, 2014, the Board issued Interim Findings of Fact, Conclusions of Law and Order for Summary Suspension of License against Respondent, finding that the public health, safety or welfare imperatively required emergency action under A.R.S. § 32-1451(D). 20. During January and February 2015, three of Respondent’s former patients filed complaints against him with the Board that he had abandoned his practice and then ignored their requests for medical records to allow them to continue treatment with another practitioner. Although the Board notified Respondent of the patient’s complaints, he did not respond. CONCLUSIONS OF LAW 1. The Complaint and Notice of Hearing that the Board mailed to Respondent at his address of record was reasonable and he is deemed to have received notice of the hearing.[2] 2. The Board is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. This matter lies within its jurisdiction.[3] 3. The Board bears the burden of proof to establish cause to sanction Respondent’s license by clear and convincing evidence.[4] Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probably or reasonably certain.”[5] 4. The Board established by clear and convincing evidence that Respondent is unable to safely engage in the practice of medicine due to his unresolved behavioral health issues. Therefore, the Board established that Respondent has engaged in unprofessional conduct as defined by 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.”). 5. The Board also established by clear and convincing evidence that in light of Respondent’s unresolved behavioral health issues and failures to respond to the Board’s inquiries or to comply with the Board’s orders, the public health, safety, or welfare required the Board to summarily suspend Respondent’s license. 6. The Board also established by clear and convincing evidence that Respondent failed to comply with the Board’s December 17, 2014 Interim Order for Physician Health Program Assessment. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32- 1401(27)(q) (“[v]iolating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director under this chapter.”). 7. Respondent chose to ignore the Board’s repeated messages, refused to contact with the Board, and failed to appear for the duly noticed hearing. These actions, combined with his refusal to seek treatment for his unresolved behavioral health issues, show that he cannot be regulated at this time. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board affirm its December 19, 2014 order summarily suspending Respondent George F. Gwinn, MD’s License No. 25811 for the practice of allopathic medicine in the State of Arizona. It is further recommended that Board revoke Respondent’s license. 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, March 4, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Patricia McSorley, Interim Acting Executive Director Arizona Medical Board ----------------------- [1] A.R.S. § 32-1451(B) provides in relevant part as follows: The chief executive officer, the medical director or the medical chief of staff of a health care institution shall inform the board if the privileges of a doctor to practice in that health care institution are denied, revoked, suspended or limited because of actions by the doctor that appear to show that the doctor is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the practice of medicine. . . . [2] See A.R.S. §§ 32-1451(R); 41-1092.04. [3] See A.R.S. § 32-1401 et seq. [4] See A.R.S. §§ 41-1092.07(G)(2) and 32-1451.04; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Black’s Law Dictionary at 596 (8th ed. 1999).

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