ALJDEC decisions subject to certification as final

17A-52347-MDX · Arizona Medical Board · 2017-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Roger W. Shortz, M.D.,

Applicant for Licensure for the Practice of Allopathic Medicine in the State of Arizona.

No. 17A-52347-MDX

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 25, 2017, at 9:00 a.m.; the record was held open until September 8, 2017, to allow the Administrative Law Judge to have the benefit of the court reporter’s transcript when she made her recommended decision.

APPEARANCES: Roger W. Shortz, M.D. was represented by Michael K. Goldberg, Esq., Goldberg Law Group, LLC; the Arizona Medical Board (“the 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 authority for licensing and regulating the practice of allopathic medicine in Arizona.

Roger W. Shortz, M.D., F.A.C.S. was initially licensed in the State of Florida in 1973 and has been licensed to practice allopathic medicine in the State of California since August 1974. Dr. Shortz has been certified by the American Board of Neurological Surgery since January 1980, and practices as a neurosurgeon, primarily performing spinal surgeries.

On or about March 26, 2016, the Board received an application for licensure in Arizona from Dr. Shortz. Dr. Shortz responded “yes” to the following two questions on the application:

7. Have you been named as a defendant in a malpractice matter currently pending or that resulted in a settlement or judgment against you?

8. Have you had hospital privileges revoked, denied suspended, or restricted?

Dr. Shortz provided written explanations for his affirmative responses and attached documents to his application. He had settled the malpractice claims of five patients, including L.A., A.G., J.G., and A.P., and had had his clinical privileges summarily suspended at John Muir Medical Center (“JMMC”) in May 2010.

Based on Dr. Shortz’s affirmative responses to the two questions on the application, the Board opened this case and assigned Licensing Investigations Manager Marlene Young to perform an investigation.

On or about September 7, 2016, the Board’s Chief Medical Consultant William Wolfe, M.D., opined that the records of patients L.A., A.G., J.G., and A.P. would require review by a neurosurgeon for the Board to evaluate Dr. Shortz’ application.

The Board’s consultant Thomas B. Scully, M.D., F.A.A.N.S. reviewed the medical records to render an opinion on whether Dr. Shortz had departed from the applicable standard of care in his treatment of the four patients. Dr. Scully has been licensed in Arizona since 1994 and has been certified by the American Board of Neurological Surgery since 1998. On or about December 16, 2016, Dr. Scully provided a Medical Consultant Report and Summary to the Board.

Ms. Young reviewed the documents and narrative that Dr. Shortz had submitted with the license application, Dr. Scully’s Medical Consultant Report and Summary, and other documents. On or about February 6, 2017, Ms. Young prepared an investigative report for the Board.

On or about February 16, 2017, the Board’s Staff Investigational Review Committee considered the matter and recommended that the Board deny Dr. Shortz’ application for licensure.

At the Board’s meeting on April 5, 2017, it voted to offer Dr. Shortz an opportunity to withdraw the application and, if he did not withdraw the application, to deny licensure.

Dr. Shortz did not withdraw the license application. On June 2, 2017, the Board issued an order denying Dr. Shortz’ application for licensure under A.R.S. § 32-1422(A)(4) because he did not have a professional record that indicated that he had not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee.

Dr. Shortz appealed and requested a hearing on the Board’s denial. The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on August 25, 2017. The Board submitted 22 exhibits and presented the testimony of Dr. Scully and Ms. Young. Dr. Shortz submitted 14 exhibits and testified on his own behalf.

Hearing Evidence

Dr. Shortz primarily practices in the San Francisco area. He limits his practice to spinal surgery. Because his office is located in an industrial area, approximately 80% of his practice involves surgeries performed under California’s Workers’ Compensation Act. Dr. Shortz also has a part-time office in San Diego.

Dr. Shortz testified that he performs approximately 150 spinal surgeries per year that were similar to the surgeries he performed on patients A.P., A.G., J.G., and L.A. He currently does 50 to 75 major spine cases a year.

Dr. Scully testified that a malpractice insurer’s settlement of a claim does not necessarily mean that the physician failed to comply with the recognized standard of care because insurers may have other reasons to pay money to settle a case.

Dr. Shortz wishes to be licensed on Arizona because approximately ten years ago, California passed a law that required utilization review before surgery could be performed on a Workers’ Compensation claimant. Before surgery can be performed, a physician in the same or similar specialty must review the medical records and agree that surgery is warranted. Dr. Shortz testified that California is becoming an increasingly difficult place to practice or live.

Dr. Shortz testified has been offered an opportunity to practice at the OSPI clinic in Gilbert and Mesa. If he is successful in getting a license from the Board, he will have to obtain staff privileges at hospitals or outpatient surgical centers in Arizona, which will require undergoing proctorships. Dr. Shortz would also agree to proctoring and/or probation as conditions of licensure.

Loss of Privileges at JMMC

According to the file, Dr. Shortz had been practicing at JMMC for eight years and had applied for and was granted staff privileges at JMMC in May 2009.

On or about November 10, 2009, JMMC’s vice chief of staff informed Dr. Shortz that its Medical Executive Committee (“MEC”) had determined to open an investigation into various issues, including whether Dr. Shortz had performed a wrong level surgery on patient A.P. Dr. Shortz disclosed A.P.’s malpractice claim to the Board and it performed its own evaluation, which is summarized in the next section.

Dr. Shortz explained to the Board that his loss of privileges at JMMC stated two other cases were involved in the MEC’s investigation. In the second case, the MEC was concerned about a surgery that was performed in July 2006 during which a vascular surgeon was not present. According to Dr. Shortz, a vascular surgeon was in fact present for the surgery, although he did not scrub, and the patient did not experience any adverse consequences. In the third case, the MEC characterized a surgery that Dr. Shortz performed as a near miss wrong level procedure. Dr. Shortz stated that shortly before the surgery, he was advised of preoperative medical records that were inconsistent with preoperative imaging. Dr. Shortz stated that he reviewed the records and performed the surgery at the correct level, there was no near miss, and the patient’s safety was never in jeopardy. The record does not contain any other information about these two complaints.

On or about March 2, 2010, JMMC’s MEC informed Dr. Shortz that it wanted him to undergo a neuropsychological evaluation to address cognitive function.

On or about April 13, 2010, clinical neuropsychologist Ronald Ruff, Ph.D. conducted a neuropsychological examination of Dr. Shortz. On April 22, 2010, Dr. Ruff reported that neuropsychological test results did not reveal any objective impairments, although Dr. Shortz demonstrated difficulties on tasks involving cognitive flexibility and visuospatial fluency, but that from a cognitive perspective, Dr. Shortz demonstrated above average intelligence.

On or about May 19, 2010, JMMC’s MEC summarily suspended Dr. Shortz’ staff privileges effective on his receipt of the letter because it “felt that your continued practice of surgery at [JMMC] represented a potentially imminent danger to patients.”

On or about June 2, 2010, JMMC’s MEC rescinded the summary suspension but restricted Dr. Shortz’ staff privileges, requiring him to have an MEC-approved proctor provide a written review of his preoperative documentation, including diagnostic imaging and operative consent, at least two days prior to any procedure, that the proctor evaluate and supervise Dr. Shortz’ intraoperative procedure, including localization of proper levels, that the proctor be willing to intervene if necessary, and that the Division of Neurosurgery conduct post-operative review of every surgery that Dr. Shortz performed at JMMC.

On June 29, 2010, an attorney notified JMMC that he had been retained to represent Dr. Shortz to contest the restrictions that had been placed on his staff privileges.

On September 7, 2010, Dr. Shortz’ attorney confirmed his settlement with JMMC, under which he agreed to abide by the restrictions that the MEC had imposed, that he would not reapply for staff privileges at JMMC after his privileges expired on December 21, 2010, and that JMMC would report the loss of privileges to the California Medical Board and the National Practitioner Data Bank using certain language.

Dr. Shortz explained that he has staff privileges at two other hospitals and an outpatient surgery center in northern California and two hospitals and an outpatient surgery center in southern California, where he maintains a part-time office in San Diego. The hospitals did not grant him staff privileges until he satisfactorily completed a proctorship, which is common in the medical profession. Dr. Shortz testified that he performs most of his surgeries in northern California at Alta Bates Summit Medical Center, where he initially received privileges on August 19, 2015. Dr. Shortz testified that he also has privileges at West Anaheim Medical Center and Silver Lake Medical Center.

Dr. Shortz explained that rather than incurring the expense of an appeal, he determined that his practice did not require him to continue to hold privileges at JMMC. Because he did not need privileges at JMMC for his practice in northern California, he agreed to relinquish his staff privileges at JMMC.

Patient A.P.

In 2007, A.P. was a 46-year old male whom Dr. Shortz had previously treated for a work-related injury. The initial lumbar spine surgery was in 1994 at L4 through S1 bilaterally with bilateral posterolateral and transverse process fusion. On November 19, 1996, Dr. Shortz performed surgery to remove the instrumentation from the 1994 surgery.

A.P. complained of moderate to severe constant low back pain and moderate to severe lower left extremity radicular pain. After A.P. failed to respond to conservative treatment, on January 29, 2007, Dr. Shortz re-evaluated him. Dr. Shortz diagnosed A.P. with Failed Laminectomy Syndrome, Lumbar Disc Disease, Lumbar Herniated Disc, Lumbosacral Radiculitis, Lumbar Stenosis, and Unstable Spine and requested that the workers’ compensation insurer authorize a Decompressive Laminectomy and Foraminotomy with Posterior Lumbar Interbody Fusion at L3-4 with pedicle screw instrumentation at L2-3, L3-4, and L5-S1.

On August 10, 2007, an MRI was taken of A.P.’s lumbar spine that showed “evidence of previous surgery at L4, L5 and S1” and a “partial laminectomy defect at L4/L5 with fibro fatty tissue replacement.” The August 10, 2007 MRI also reported the following impression:

At L2/L3, there is a 3.8 mm broad based disc protrusion that effaces the cauda equine producing mild to moderate spinal canal narrowing. This produces bilateral neuroforaminal narrowing causing effacement of the right and encroachment on the left L2 exiting nerve roots.

At L3/L4, there is a 3.8 mm broad based disc protrusion that impinges the cauda equine producing moderate to severe spinal canal narrowing. This produces bilateral neuroforaminal narrowing causing effacement of the L3 exiting nerve roots.

On September 7, 2007, imaging performed at JMMC showed “[m]oderate-to-severe disc degenerative changes at L3-4. Mild to moderate disc space height loss at L2-3 and L4-5.”

On September 17, 2007, Dr. Shortz had A.P. admitted to JMMC “to undergo lumbar laminectomy and discectomy with instrumentation and fusion at L2-L3 and L3-L4 levels . . . .” On that same date, Dr. Shortz performed surgery on A.P. at JMMC. Dr. Shortz described the procedure as a decompression with instrumented fusion at the L2-3 and L3-4 levels.

On April 21, 2008, a CT scan taken of A.P.’s lumbar spine was interpreted as follows:

L1-2: First pedicle screws are seen. They are purchased satisfactorily. . . .

L2-3: Pedicle screws again noted. Similar findings to what was seen above. . . .

L3-4: There is advanced spondylosis with endplate sclerosis. There are pedicle screw tracts seen entering into the vertebra through each pedicle with some fragmentation of bony material dorsal to that. . . .

. . . .

IMPRESSION:

1. Status-post laminectomy and fusion with gas in the L2-3 disc space and other degenerative findings.

Another copy of the April 21, 2008 CT scan report shows a handwritten notation, “L4-5,” with an arrow pointing to the description of what was found at the L3-4 level. The record does not show who made the handwritten notation.

Dr. Scully in his Medical Consultant Report noted that the films for A.P. were not available but that if the typewritten report of the April 21, 2008 CT scan was correct, it indicated that Dr. Shortz had not performed surgery at the L3-L4 level. Dr. Scully testified that if the radiologist had seen screws at the L3-L4 level, he would have said so in his report.

Dr. Scully stated that if Dr. Shortz had performed surgery at the wrong level, A.P. would have persistent symptoms caused by stenosis at the L3-L4 level and, because A.P. would be fused up to L1-L2, he also would run the risk of breaking down at the thoracolumbar junction and would then need a much more significant surgery for stabilization.

Dr. Scully testified Dr. Shortz deviated from the standard of care by operating at the wrong level and not realizing it, which was especially problematic in an instrumented case where hardware had been placed.

Dr. Shortz testified that he was familiar with A.P.’s case because he had been a patient for many years. Dr. Shortz testified that the real pathology was at L1-2 and L2-3, because the pathology at L3-4 had been previously addressed. He did not recall any discrepancy between his operative report and the radiology reports. Dr. Shortz opined that his care of A.P. met the standard because all levels of pathology had been addressed.

Dr. Shortz acknowledged that his malpractice insurer paid A.P. $195,000 to settle his claim.

Patient A.G.

A.G. was a 53-year-old man who had a work-related injury who had undergone surgery by a Dr. Randall Smith in approximately 1998 in San Diego. Following the 1998 surgery, A.G. was treated by a chronic pain specialist. On July 6, 2004, a lumbar MRI scan showed midline decompressive laminectomy L3 through S1 with moderate canal narrowing at L5-S1 and severe bilateral foraminal stenosis at L4-L5 and L5-S1.

By September 2011, A.G. was complaining of worsening lower extremity pain and tingling. On October 6, 2011, a lumbar MRI scan showed a small recurrent left-sided protrusion at L4-L5 compressing the left L5 root. At T12-L1, there was a moderately large right posterior lateral extrusion with a 9 mm disc fragment compressing the thecal sac causing moderate compression and posterior displacement of the thoracic cord. At L1-L2, there was facet arthropathy and thickening ligamentum flavum with marked thecal sac effacement and mild impingement of the conus. At L2-L3, there was mild retrolisthesis and mild canal narrowing. At L5-S1, there was severe facet arthropathy and thickening ligamentum flavum with severe central canal stenosis, with severe bilateral foraminal stenosis that was worse on the right side.

On November 3, 2011, A.G. was seen by Dr. Shortz. Dr. Shortz noted that A.G. had back pain with radicular pain into his right leg. Dr. Shortz felt A.G. had a disc herniation at T12-L1. Dr. Shortz noted A.G. had a prior laminectomy in 1998 with residual right lower extremity radiculopathy as well as foraminal stenosis and degenerative listhesis and facet joint hypertrophy that was most severe at L3-L4, L4-L5, and L5-S1. Dr. Shortz recommended a T12-L1 decompression and fusion and that an MRI be done of the cervical and thoracic spine.

On January 6, 2012, an MRI was performed of A.G.’s thoracic spine. The doctor who interpreted the report noted the following at the T11-T12 level:

This level was designated as T12-L1 in today’s MRI report. Intervertebral disc is mildly decreased in height with a 6 mm right paracentral/lateral disc extrusion virtually filling the central canal with annular fissuring/high intensity zone. Severe central canal stenosis is seen. Moderately severe facet joint degenerative changes are demonstrated. . . .

On February 13, 2012, Dr. Shortz performed a right laminotomy, spinal cord decompression with Aspen instrumentation purportedly at A.G.’s T12-L1 level.

Although Dr. Shortz reported that A.G. was doing well, on July 5, 2012, A.G. sought a second opinion from another neurosurgeon because he did not feel that the surgery had reduced his symptoms. Based on his examination of A.G. and review of his medical records, Larry D. Dodge, M.D., issued a lengthy report that concluded in relevant part as follows:

I note that the prior instrumented fusion was either at L1-L2 or L2-L3 depending upon which way you term the L5 vertebrae. In any event, at least on the plain roentgenograms, it does not appear to be at T12-L1 where it was reportedly performed.

Dr. Dodge recommended that another MRI scan be performed before any judgment be passed on the matter.

On July 18, 2012, an MRI of A.G.’s lumbar spine was performed. The MRI findings included the following:

When counting from the skull base there is a transitional L5 vertebral body with partial sacralization. A rudimentary L5-S1 disk is present. On the prior study the L5 disk was designated as the S1 disk. Allowing for this the tip of the conus is noted at the L1-L2 level.

There is note again made of a rather large (7mm) right paracentral disk extrusion at the T11-T12 level. When compared with prior study this appears slightly decreased in size probably related to desiccation of the extruded disk material. There is effacement of thecal sac and the adjacent caudal thoracic cord. Moderate facet arthropathy at this level is again noted. There is moderately severe central canal stenosis. The neural foramine are within normal limits.

T12-L1. There is a mild disk space narrowing disk desiccation. There is facet arthropathy with thickening ligamentum flavum. Small adjacent Schmori’s nodes are again identified. There is a 4 mm central disk herniation also again noted and this extends slightly greater left of the midline. There is facet arthropathy. There is resultant moderate central canal stenosis and mild to moderate left-sided foraminal stenosis and the right neural foramen remains at the lower limits of normal in size. Findings unchanged from prior study.

L1-L2: Postoperative changes are now noted at this level with interbody fusion (lateral approach) present at this level. Interbody cages in satisfactory position. . . .

Dr. Scully opined that Dr. Shortz departed from the standard of care by performing surgery at the wrong level. Dr. Scully acknowledged that an estimated 50% of spine surgeons had admitted performing wrong level surgery at some point in their careers. Dr. Scully noted that spine surgeons often realize that they are operating on the wrong level after removing bone and finding with further radiographs that they are not finding appropriate pathology, but that Dr. Shortz never discovered his error or revealed it to A.G. The error was only discovered when A.G. sought a second opinion after his symptoms did not resolve.

Dr. Scully testified that Dr. Shortz had performed surgery on A.G. two levels removed from the level where the pathology actually was. Dr. Scully explained that the pathology was at the T11-T12 level and the surgery was performed at the L1-L2 level. Dr. Scully characterized a surgery that was off by two levels as a significant counting error. Dr. Scully opined that Dr. Shortz’ deviation from the standard of care was more significant because he did not recognize that he had performed surgery at the wrong level.

Dr. Scully noted that A.G. suffered actual harm because he had a significant disc herniation with associated spinal cord compression and his pathology was never addressed. Dr. Scully also opined that A.G. was potentially harmed because he now has a fusion at the uppermost lumbar region that would place the thoracolumbar spine at risk for accelerated breakdown as well as the level below the L1-L2 region.

As a mitigating factor, Dr. Scully noted the following:

[It] is quite difficult to discern the appropriate level in patients with transitional lumbosacral anatomy. However that underscores the importance of noticing it preoperative. In addition there were two different thoracic MRIs [that] had different readings in regards to the level of pathology. That would lead one to spend a great deal of time in the office and with the radiologist figur[ing] out exactly which level had the significant pathology.

Dr. Scully noted that Dr. Shortz performed surgery on A.G. in the lateral approach and that it would have been easier to see the pathology from a posterior approach. Dr. Scully testified that his practice in difficult cases was to diligently study pre-operative films, comparing the pre-operative films to intraoperative fluoroscopy, having everybody in the operating room count with him up and down multiple times, and to follow up the surgery with post-operative x-rays.

Dr. Shortz testified that A.G. was a large man with anatomical abnormalities, which made counting vertebrae challenging. Dr. Shortz testified that A.G. had severe multi-level disc disease involving his whole lumbar spine that that Dr. Shortz had advised A.G. that he would need more than one surgery.

Dr. Shortz testified that some people have 6, not 5, lumbar vertebrae. A.G. had a developmental anomaly involving the L5 or last lumbar vertebra and S1. Dr. Shortz testified that this anomaly caused different reports to label the same level differently. Dr. Shortz submitted an article entitled, “A Review of Symptomatic Lumbosacral Transitional Vertebrae [“LSTV”]: Bertolotti’s Syndrome,” that stated that LSTV “are often inaccurately detected and classified on standard AP radiographs and MRI.” Dr. Shortz noted that the radiologists’ reports conflicted.

Dr. Shortz testified that surgery being off by one level happens that that he could have miscounted or had movement of the retractor during his A.G.’s lateral procedure, during which the patient would have been on his side. Although pins hold the retractors in place, the pins can slip, exposing the wrong level. Dr. Shortz testified that nothing could have been done differently and that his surgery on A.G. was within the standard of care.

Dr. Shortz testified that he always has pre-operative imaging and that he uses fluoroscopy during surgery. In addition, his assistant surgeon, the x-ray technician, and the surgical hardware vendor are also looking at the fluoroscopy. Dr. Shortz testified that he counts the levels and asks the others whether they agree. The quality of the fluoroscopy may be degraded by the size of the patient and it is still possible to make mistakes.

Dr. Shortz testified that there was no reason to have post-operative imaging done on A.G. because he was doing well. Dr. Shortz acknowledged that his malpractice insurer paid $245,000 to settle A.G.’s claim.

/ / / /

/ / / /

Patient L.A.

L.A. was a 39-year-old female who had a work-related injury and had failed conservative treatment.

On October 14, 2010, an MRI of L.A.’s lumbar spine was performed, which was interpreted in relevant part as follows:

L4-L5 level: The disc is normal in height and signal intensity. There is no evidence of disc bulge or herniation. No canal stenosis or foraminal narrowing is seen. No significant facet joint hypertrophy is noted.

L5-S1 level: There is mild disk height loss with partial desiccation of the intervertebral disk material. There is a left far lateral 3 mm broad bulging of the disk that causes mild degree of left-sided proximal inferior foraminal encroachment. No significant central canal stenosis or right-sided neural foraminal narrowing.

CONCLUSION:

L5-S1 mild degenerative disk disease. Asymmetric left-sided far lateral broad bulging of the disk results in mild degree of left-sided inferior foraminal encroachment. No significant central canal stenosis or right-sided neural foraminal narrowing.

Remainder of the lumbar spine levels are unremarkable.

On January 4, 2011, a CT Lumbar Myelogram was performed, which was interpreted in relevant part as follows:

L4-L5: Very mild disk bulging.

L5-S1: Mild disk bulging, asymmetric subtly greater in the left. No focal disk herniation. No foraminal stenosis.

. . . .

CONCLUSION: Minimal disk bulging at L4-5 and mild disk bulging at L5-S1, asymmetrically slightly greater on the left at L5-S1. No disk herniation, central canal stenosis or foraminal stenosis. Study otherwise negative.

. . . .

ADDENDUM:

Request was made to generate an addendum commenting on the facet joints.

At the L5-S1 level, there is moderate left facet joint hypertrophy and mild right facet joint hypertrophy without significant foraminal impingement.

At the L4-5 level, there is minimal facet joint degenerative change on the left. The right facet joint at this level is unremarkable.

On January 4, 2011, L.A. also underwent a myelogram injection with fluoroscopy. The findings were reported as follows:

The conus and cauda equine complex appears normal. The lumbosacral nerve roots appear normal. There is no spinal stenosis or any obvious lateralizing impression upon the thecal sac. There is very mild anterior impression upon the thecal sac at the L5-S1 level. There is considerable facet joint hypertrophic change at L5-S1.

Dr. Shortz performed surgery on L.A. on April 26, 2011. His pre-operative assessment and orders suggested an L4-L5 and L5-S1 decompression with instrumented fusion. Post-operative images taken on October 10, 2011, showed an L4-L5 and L5-S1 decompression with instrumented fusion.

L.A. was dissatisfied with the lack of improvement in her symptoms and sought a second medical opinion after her surgery. On January 10, 2012, Randall W. Smith, M.D., A.P.C. reviewed her records. With respect to the appropriateness of the care rendered to L.A., Dr. Smith opined that “it is not clear to me why she had the L4-5 disc operated upon since neither I nor the radiologists nor Dr. Dodge could detect any abnormalities of that disc on MRI or the CT/myelogram.”

Dr. Scully acknowledged that he did not have the actual images of L.A.’s spine. Dr. Scully’s first criticism of Dr. Shortz’ surgery on L.A. was that based on the reports, Dr. Scully was not sure whether any surgery was warranted but if it was, a better option would have been an L5-S1 minimally invasive decompression or discectomy because the abnormalities noted on the imaging reports were trivial. Dr. Scully opined that Dr. Shortz’ surgery at L4-L5 was unnecessary and medically unjustified.

Dr. Shortz stated that L.A. had failed conservative treatment over a period of several months before she was referred to him. He had personally reviewed both the CT and the MRI. Dr. Shortz testified that pursuant to California Workers’ Compensation Act, another neurosurgeon or a doctor in a similar specialty would have performed a utilization review and approved the surgery.

Dr. Shortz testified that he reviewed all the imaging studies, both the CT and myelogram, as well as a positive EMG test which showed the presence of L5 radiculopathy, indicating compression damage to the L5 nerve root. Given the test results, L.A. had few non-surgical alternatives and he believed that surgery would help her.

Dr. Scully’s second criticism of Dr. Shortz’ care of L.A. was that Dr. Shortz’ operative report did not correlate with post-operative images in that the report only showed decompression with instrumented fusion at L4-L5, but the images showed L4-L5 and L5-S1 instrumented fusion with a cross connector and pedicle screws at L4-L5 and the sacrum bilaterally.

Dr. Scully’s third criticism of Dr. Shortz’ care of L.A. was that the medical records included two operative reports for the April 26, 2011 procedure. One showed only that a fusion was done at the L4-L5 level, but did not mention the L5-S1 level. Another report described interbody fusions at the L4-L5 and L5-S1 levels. Dr. Scully testified that physicians are encouraged to dictate their operative reports on the same day that they performed the surgery. Dr. Shortz’ five-day delay between April 26, 2011, when he performed the surgery, and May 1, 2011, when he dictated both operative reports, is an unusual delay that is frowned upon. Dr. Scully testified that if he noticed that something was missing in an operative report, he would write an addendum to the report.

Dr. Shortz testified that spinal surgeries take hours to perform. Immediately after the surgery, he prepares a handwritten as well as a typewritten report. Dr. Shortz testified that most hospitals require a report to be filed within 24 hours. Dr. Shortz explained that he inadvertently omitted the second level that he operated on in the first report, and realized the omission several days later, when he saw L.A., so re-dictated the operative report to make it complete. Although he could have labelled the second report as an addendum, he did not because it was a full report.

Dr. Scully noted that both operative reports referred to interbody cages, which is when an entire disc is taken out and some sort of structural implant put in where the disc used to be to allow for fusion across that area. Dr. Scully pointed out that no interbody cages were identified on post-operative x-rays. Dr. Scully acknowledged that if the interbody cages were plastic, they would not show up on an x-ray but that they would have a marker that would show up on x-rays. Dr. Scully stated that he had looked at the films that were in the record and that he did not see any titanium cages or markers.

Dr. Shortz testified that the interbody cages had been implanted and were well-documented. Dr. Shortz testified that the only issue was whether they were visualized on post-operative images. Dr. Shortz testified that he does not make routine post-operative x-rays, MRIs, or other visualizations if the patient is doing well because a fusion does not mature for many months. In addition, studies show that imaging is not reliable and that there is a 30% chance of false positives and some radiologists do not know what they are looking at.

Dr. Shortz acknowledged that post-operative x-rays of L.A. did not show any interbody cages and that the hardware representative’s list did not show any interbody cages. Dr. Shortz initially did not think that L.A.’s lawsuit alleged that he had failed to insert interbody cages, but acknowledged that the failure was alleged in her complaint.

Dr. Scully opined that absent instability in a patient and significant pathology, spinal surgery on a 39-year-old woman could set up the possibility of junctional disease, which occurs when a fusion has created a significant fulcrum that will like cause the level above to break down and degenerate at an increased rate.

Dr. Scully testified that the risk to the patient posed by multiple inconsistent and inaccurate operative reports is that future providers will not know exactly what procedure was performed on the patient.

Patient J.G.

J.G. was a 46-year-old female who had previous injuries and surgeries elsewhere. She had a spinal cord stimulator that did not prevent significant new pain. On August 5, 2013, Dr. Shortz performed a revision to that stimulator. Dr. Scully testified that J.G. was doing well after the August 2013 revision, but then was involved in a motor vehicle accident. Dr. Scully testified that one of the leads may have moved as a result of the accident, causing J.G. to experience pain again.

Dr. Shortz performed a second revision on October 7, 2013, when he had difficulty advancing the lead had had to use a Penfield 3 dissector. When J.G. awoke after the second surgery, she had lower extremity weakness.

Dr. Scully’s report initially opined that Dr. Shortz had deviated from the standard of care by using a Penfield 3 dissector to break up adhesion in the epidural space because “[t]his is a very unforgiving area of the spinal canal. When he noted that there was difficulty advancing the lead, he either should have stopped [or] done a bigger laminotomy to visualize things.”

Dr. Scully reconsidered his opinion during his testimony. Although J.G. had a bad outcome and the medical records did not indicate that she was ever able to walk again, Dr. Scully declined to testify unequivocally that Dr. Shortz had deviated from the standard of care in his second surgery on J.G.:

It’s difficult to say that it’s a deviation per se from the standard of care. I think it’s a bad outcome, that it’s an incredibly unfortunate outcome. But I don’t know in this one that I can be as direct and say that it’s truly a deviation from the standard of care. It’s a little more difficult – It’s much more nuanced, I think.

Dr. Shortz testified that he cautions patients to avoid twisting or bending for at least 10 days after surgery to place a spinal cord stimulator because movement may cause the paddle lead to slip. Dr. Shortz denied that his use of the Penfield tool on J.G. had been negligent. Dr. Shortz testified that it was more likely that the anesthesiologist had allowed J.G.’s blood pressure to get to low, which caused her to suffer a stroke of the spinal cord. Dr. Shortz testified that his attorney advised him that J.G.’s claim was highly defensible, but advised him to agree to a settlement because J.G. was a sympathetic plaintiff and her attorney was seeking an award in excess of Dr. Shortz’ insurance policy limits.

Dr. Shortz acknowledged that his malpractice insurer paid $200,000 to settle J.G.’s claim.

Other Evidence

Dr. Shortz submitted an article that was published in the February 2008 issue of Spine that was entitled, “The Prevalence of Wrong Level Surgery among Spine Surgeons.” The authors sent a 30-question survey to the approximately 3,505 members of the American Association of Neurologic Surgeons in February and March 2006. A total of 415 surgeons responded. Sixty-four surgeons (15%) reported that, at least once, they had prepared the incorrect spine level, but noticed their mistake before making an incision. Two hundred seven surgeons (50%) reported that they had performed 1 or more wrong level surgeries during their careers. The majority of incorrect level procedures were performed in the lumbar spine (71%).

Dr. Scully acknowledged that around 2007, he had performed a wrong level surgery on a patient. Dr. Scully stated that he disclosed the wrong level surgery to the patient, there was no settlement, and the patient’s malpractice claim was dismissed.

Dr. Shortz submitted letters of reference from physicians and medical device consultants with whom he had practiced in California:

Horacio R. Cruz, M.D. is a general surgeon who has known Dr. Shortz for over 30 years. Dr. Cruz described Dr. Shortz as a very fine neurosurgeon who is extremely knowledgeable, good with patients, and compliant with hospitals’ policies, and who would be an asset to any medical community.

Joseph L. Vanderlinden, M.D., is a vascular surgeon who considers Dr. Shortz to be a very knowledgeable and capable spine surgeon who has a good rapport with patients and is a very careful operator.

Jon Giannini is the CEO and managing partner of Synergy Surgical, a supplier of medical devices, who stated that over his 25 years as a medical device consultant, he has viewed thousands of surgical procedures and that, in the 11 years that he has been working with Dr. Shortz, Dr. Shortz has demonstrated an exceptionally high level of surgical skill and efficiency.

Edward C. Kolpin, D.O. has known and worked with Dr. Shortz for over ten years in various hospitals. Dr. Kolpin described Dr. Shortz as a highly competent and professional spinal surgeon who is of good moral character, shows compassion for his patients, exhibits humility, and gets along well with medical colleagues and nursing staff.

The California Medical Board has been informed of Dr. Shortz’ loss of staff privileges at JMMC and the four malpractice settlements. The California Medical Board has not taken any action against Dr. Shortz’ license to practice allopathic medicine in California.

Dr. Shortz’ attorney argued and the Board’s attorney did not dispute that if the four malpractice settlements had been made on behalf of an allopathic physician to whom the Board had already issued a license to practice allopathic medicine in Arizona, the Board likely would not revoke the physician’s license but, instead, would impose probationary terms that would have allowed the Board to monitor the physician’s practice.

CONCLUSIONS OF LAW

The Board is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. The Board has jurisdiction to determine whether Dr. Shortz is qualified to be issued a license to practice allopathic medicine in Arizona.

Dr. Shortz bears the burden of proof to establish that he meets statutory qualifications for a license to practice allopathic medicine by a preponderance of the evidence. The Board bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

In contrast, the Board must establish cause to sanction a previously licensed allopathic physician’s license by clear and convincing evidence. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probably or reasonably certain.” Because the Board bears a heavier burden to establish cause to discipline an allopathic physician’s license than an applicant bears to establish his qualifications for licensure, the fact that the Board would not discipline a licensee for unprofessional conduct does not require it to grant a license to an applicant who the Board has determined has committed similar unprofessional conduct.

The members of the Board may rely on their own expertise to evaluate the Administrative Law Judge’s recommended decision and to determine whether Dr. Shortz has established by a preponderance of the evidence that he is qualified to practice allopathic medicine in Arizona.

The Board does not dispute that Dr. Shortz meets the educational requirements for licensure and that he has been licensed to practice allopathic medicine for more than 40 years in California. Dr. Shortz therefore has made a prima facie showing that he is qualified to practice allopathic medicine, shifting the burden to the Board to rebut his prima facie showing.

A.R.S. § 32-1422(A)(4) requires a license applicant to meet certain requirements to be licensed as an allopathic physician in Arizona, including that he “[h]ave a professional record that indicates that the applicant has not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under this chapter.” A.R.S. § 32-1451(M) allows the Board to revoke, suspend, or impose lesser discipline an allopathic physician’s license if it determines that he has committed unprofessional conduct.

The Board established by a preponderance of the evidence that Dr. Shortz performed wrong-level spinal surgeries on A.P. on September 17, 2007, and on A.G. on February 13, 2012. The Board also established that the surgery that Dr. Shortz performed on A.G. was off by two levels, a far more significant error.

The Board also established by a preponderance of the evidence that on April 26, 2011, Dr. Shortz performed an unnecessary and unjustified surgery on L.A. at L4-L5 and that he prepared at least two inconsistent operative reports. The Board also established that Dr. Shortz did not install interbody cages, although he stated in both operative reports that he had done so.

A.R.S. § 32-1401(27)(q) defines “unprofessional conduct” to include “[a]ny conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.” In enacting A.R.S. § 32-1401(27)(q), the legislature “intended rather to proscribe only those forms of treatment whose potential or actual harm is unreasonable under the circumstances, given the applicable standard of care.” A doctor’s use of a method of care “does not fall below the standard of care if ‘a respectable minority of physicians approve the disputed technique and so long as the defending doctor properly employed that technique. . . ’”

The record shows that half of all spinal surgeons who responded to the 2008 survey reported that they had performed a spinal surgery at the wrong level. In the past decade, Dr. Shortz has performed at least two wrong-level surgeries, one that was off by two levels. Because Dr. Shortz does not routinely perform post-operative imaging, even on admittedly difficult cases, the only reason that the wrong-level surgeries were discovered was A.P.’s and A.G.’s dissatisfaction with the results of the surgeries. The Board established by a preponderance of the evidence that the wrong level surgeries that Dr. Shortz performed on A.P. and A.G. constituted unprofessional conduct as defined by A.R.S. § 32-1401(27)(q).

The Board also established by a preponderance of the evidence that Dr. Shortz’ performance of an unnecessary and medically unjustified procedure on L.A., his preparation of two inconsistent operative reports, and his reference to interbody cages in both reports that were not installed constituted unprofessional conduct as defined by A.R.S. § 32-1401(27)(q)..

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Board deny Dr. Shortz’ appeal of its denial of his application for licensure and affirm its decision to deny his application to practice allopathic medicine in Arizona because he does not have a professional record that indicates that he has not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under A.R.S. § 32-1422(A)(4).

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, September 25, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Interim Acting Executive Director

Arizona Medical Board