FINACT18A-1603040-NUR.pdf

18A-1603040-NUR · State Board of Nursing · 2018-07-02

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 1740 West Adams Street, Suite 2000 Phoenix. AZ 85007 Phone (602) 771-7800 Fax (602) 771-7888 E-Mail: [email redacted] Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: June 27, 2018

RE: Phuoning Alex Keo Docket No. 18A-1603040-NUR ______________________________________________________________________________

On June 26, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoke Registered Nurse License Number RN108624 and Advanced Practice Certificate number AP4232, issued to Phuoning Alex Keo.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety with minor clerical edits to Findings of Facts as follows:

1. Correction to minor errors in Finding of Fact No. 22 as follows: The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was scheduled to convene on April 18, 2018. Respondent requested a continuance to allow him time to prepare for the hearing with an attorney. The hearing was continued and was held on May 10, 2018, and Respondent appeared without counsel. Respondent requested a continuance hearing after the Board presented its evidence in the hearing so he could obtain an attorney to represent him. That request was denied as the original hearing had been continued to allow Respondent the opportunity to obtain an attorney and he had failed to do so. 2. The following clarifying changes in Finding of Fact No. 23 about Nurse Practice Consultant Kristi Hunter’s 1 testimony on behalf of the Board: At hearing, Ms. Hinds testified regarding Respondent’s conduct and comments made while he was employed at Copper Canyon Family Health Center. Kristi Hunter, a family nurse practitioner and the Board’s investigator, Ms. Hinds testified that Respondent’s treatment of Patient DM fell below the standard of care in that Respondent should have sent him to the emergency department immediately to avoid further harm to the patient. Ms. Hunter Ms. Hinds also stated that Respondent’s treatment of Patient CB fell below the standard of care in that he prescribed medications to the patient without thoroughly checking her prior history and medication records.

See Hearing Transcript at 44-117. ARIZONA STATE BOARD OF NURSING 1740 West Adams Street, Suite 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN108624 AND ADVANCED FINDINGS OF FACT, PRACTICE CERTIFICATE NO. AP4232 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 18A-1603040-NUR PHUONING ALEX KEO, RESPONDENT

A hearing was held before Tammy L. Eigenheer, Administrative Law Judge (“ALJ”), at 1740 West Adams Street, Lower Level, Phoenix Arizona, on May 10, 2018. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Phuoning Alex Keo appeared in person on his own

behalf.

On June 19, 2018, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On June 26, 2018, the Arizona State Board of Nursing met to consider the ALJ’s recommendations. Based upon the ALJ’s recommendations and the administrative record in this matter, the Board makes

the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT 1. The Arizona State Board of Nursing (the Board) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. The Board also has the authority to impose disciplinary sanctions against the

holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601-1667.

2. Phuoning Alex Keo (Respondent) holds Board-issued Registered Nurse License No. RN108624 (initially issued in November 1999) and Advanced Practice Certificate No. AP4232 (initially issued in October 2011) in the State of Arizona.

3. In May 2004, Respondent was issued a Decree of Censure pursuant to a Consent Agreement for a practice-related issue in September 2003. 4. On August 16, 2012, Respondent submitted an application for employment to NextCare

in Verde Valley, Arizona, in which he was instructed to list “all employers for the past seven years.”

Respondent failed to disclose employment from Avondale Health Center, his most recent employer from which he was terminated in or around May 2012. 5. On March 11, 2015, Patient DM presented to NextCare in Verde Valley, Arizona, with

neck pain secondary to a chokehold during a police activity training that occurred just prior to the

patient’s arrival at the facility. Respondent treated Patient DM and documented that Patient DM presented with left side facial drooping, slightly slurred speech, and decreased left grip strength. Patient DM also complained of difficulty breathing. Patient DM was at the NextCare office for approximately three hours that day and deteriorated over the course of the visit. Respondent ordered an MRI for

Patient DM, released Patient DM to home, and indicated he would contact Patient DM with the results

of the scan. Patient DM was ultimately diagnosed with a medullary infarction, tissue death in the lower area of the brain stem due to lack of oxygenated blood flow. 6. From approximately July 20, 2015, through December 4, 2015, while Respondent was

on duty and employed as a family nurse practitioner at Copper Canyon Family Health Center in Camp

Verde, Arizona, Respondent made multiple inappropriate comments both to and about patients. Respondent was heard to describe patients as “the fat patient”, “fat people”, or “the hot blonde.” 7. On October 19, 2015, Respondent received a Performance Appraisal and Development

Review from Copper Canyon Family Health Center. It was noted that “[t]here have been numerous

patient complaints about lack of attentiveness to their needs, felt like you didn’t listen, and were

rushed.” Respondent was notified that if performance goals were not met in 30 days, termination would result. 8. On October 26, 2015, Respondent had a conversation with Patient KB and his wife, a

70-year-old couple), about a “swingers club” he had seen on the news.

9. In an undated note, Jennifer Hinds, Office Manager, recorded that Respondent was in with an older patient and when he came out of the visit, he directed his Medical Assistant (MA) to refer the patient out for a Pap smear. The MA asked if he performed those exams and he said, in front of Ms.

Hinds and two MA’s, “No and not on her. I’d be so traumatized that I wouldn’t be able to eat pussy for

weeks!” When Ms. Hinds informed Respondent that he could not speak like that in that area, Respondent just looked at her and said, “Oh” and walked out into the hallway. 10. On December 4, 2015, Respondent was terminated from Copper Canyon Family Health Center with the notation that “[y]our employment with CCFHC has been terminated as a result of

excessive patient complaints, inappropriate verbal interactions with patients and staff, continued coding

and documentation errors, unprofessional attitude, and not meeting 45 days performance review goals.” 11. On January 7, 2016, while on duty and employed as a family nurse practitioner at Ferguson Family Medicine in Mesa, Arizona, Respondent received a written counseling for sexual

harassment for stating to an MA, while discussing two patients scheduled to come into the clinic for

pelvic exams, “Only for you baby. No gloves.” Respondent signed the warning notice indicating that he agreed with the allegation against him and noting that he “[d]id not realize she felt this was inappropriate.”

12. From approximately May 13, 2016, through February 24, 2017, Respondent provided

medical care to Patient CB while employed and on duty as a family nurse practitioner at Pueblo Medical Physician in Phoenix, Arizona.

13. During the time that Patient CB was Respondent’s patient, Respondent made several inappropriate sexual comments to Patient CB about her appearance, specifically her stomach and breasts. On or about February 24, 2017, during a medical visit for complaints including a sore throat,

Respondent pushed his hips up against and between her legs and kissed Patient CB while thrusting his

tongue into her mouth. 14. On or about May 13, 2016, Respondent prescribed an opioid therapy of Tramadol, a controlled substance, during his first visit with Patient CB. In so doing, Respondent relied on Patient

CB’s verbal report of current medications and dosages, including controlled substances. Respondent

did not obtain previous medical records, check the controlled substances prescription monitoring profile (CSPMP), or consult the pharmacy to verify the dose and quantity of controlled substances prescribed to Patient CB. 15. While providing pain management to Patient CB, Respondent increased the dose of

Vicodin (hydrocodone, a schedule II opioid medication, on June 10, 2016, and December 30, 2016,

though the medical records lacked a diagnosis that identified the source of pain supporting the need for a change in opioid treatment. Additionally, the medical record failed to contain documentation that Respondent conducted an appropriate evaluation of the pain problem, including the nature and intensity

of pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect

of pain on physical and psychological function, and an evaluation of the history of substance abuse. 16. From May 2016 to July 2016 and October 2016 through February 2017, Respondent provided Patient CB with monthly prescriptions of Xanax 1mg for the treatment of generalized anxiety

disorder (GAD). However, the recommended treatment for GAD is cognitive behavioral therapy and

medications including serotonin reuptake inhibitors, tricyclic antidepressants, Monoamine Oxidase Inhibitors, benzodiazepines, and anxiolytics. Short-term use of benzodiazepines (no longer than four

weeks) is recommended when rapid control of symptoms is crucial or while waiting for response to treatment with antidepressants or cognitive behavioral therapy. 17. On or about March 27, 2017, while employed at Pueblo Family Physicians, Respondent

received a written warning based in part on reports by female co-workers of uninvited touching and

unsolicited advances from Respondent. 18. During an in person interview with the Board on February 8, 2018, Respondent admitted that on December 18, 2017, while employed at Pueblo Family Physicians and after he received the

Board’s complaint regarding his former patient, Patient CB, he accessed Patient CB’s CSPMP profile

for purposes other than treatment. 19. On or about April 23, 2016, and on December 17, 2017, Respondent indicated on the Investigative Questionnaires from the Board that he was employed by Ferguson Family Medicine when he had, in fact, been involuntarily terminated on March 24, 2016. Respondent also reported that he was

not terminated from his employment at Copper Canyon Family Practice when he had, in fact, been

involuntarily terminated on December 4, 2015. 20. During an in person interview with the Board on February 8, 2018, and in a telephonic interview on February 14, 2018, Respondent denied any allegations, written warnings, or discipline for

inappropriate language, touching, or sexual harassment by any employer. Respondent’s employment

records from Avondale Health Center, Copper Canyon Family Health Center, Ferguson Family Medicine, and Pueblo Family Physicians all include documentation of such behavior. 21. On April 3, 2018, the Board issued a Complaint and Notice of Hearing and Summary

Suspension Expedited Hearing, alleging that cause existed to discipline Respondent’s registered nurse

license and advanced practice certificate under A.R.S. § 32-1601(26)(d), (g), (h), and (j) 1 (2017) 2 and A.A.C. R4-19-403(1), (3), (4), (26), (27), and (31). 3 22. The Board referred the matter to the Office of Administrative Hearings (the OAH), an

independent agency, for an evidentiary hearing. A hearing was scheduled to convene on April 18, 2018.

Respondent requested a continuance to allow him time to prepare for the hearing with an attorney. The hearing was continued and was held on May 10, 2018, and Respondent appeared without counsel. Respondent requested a continuance after the Board presented its evidence in the hearing so he could

obtain an attorney to represent him. That request was denied as the original hearing had been continued

to allow Respondent the opportunity to obtain an attorney and he had failed to do so. 23. At the hearing, Ms. Hinds testified regarding Respondent’s conduct and comments made while he was employed at Copper Canyon Family Health Center. Kristi Hunter, a family nurse practitioner and the Board’s investigator, testified that Respondent’s treatment of Patient DM fell below

1 A.R.S. § 32-1601(26)(d), (g), (h) and (j) defines “unprofessional conduct” to include, respectively, “[a]ny conduct

or practice that is or might be harmful or dangerous to the health of a patient or the public,” “[w]illfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter,” “[c]omitting an act that deceives, defrauds or harms the public,” and “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” A.R.S. § 32-1601(26) was effective August 9, 2017. For conduct occurring before August 9, 2017, A.R.S. § 32- 1601(24) (with language identical to the 2017 statute) applies. For conduct occurring before July 1, 2016, A.R.S. § 32-1601(22) (with language identical to the 2017 statute) applies. This decision will reference only the 2017 version of the statute for simplicity. A.A.C. R4-19-403 provides “any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or more of the following:” 1. A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice; 3. Failing to maintain professional boundaries or engaging in a dual relationship with a patient, resident, or any family member of a patient or resident; 4. Engaging in sexual conduct with a patient, resident, or any family member of a patient or resident who does not have a pre-existing relationship with the nurse, or any conduct in the work place that a reasonable person would interpret as sexual; .... 26. Making a written false or inaccurate statement to the Board or the Board’s designee in the course of an investigation; 27. Making a false or misleading statement on a nursing or health care related employment or credential application concerning previous employment, employment experience, education, or credentials; .... 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.

the standard of care in that Respondent should have sent him to the emergency department immediately to avoid further harm to the patient. Ms. Hunter also stated that Respondent’s treatment of Patient CB fell below the standard of care in that he prescribed medications to the patient without thoroughly

checking her prior history and medication records.

24. At the hearing, Respondent presented the testimony of his former MA to testify as to his conduct with patients that she observed while present with them. Respondent did not testify on his own behalf.

CONCLUSIONS OF LAW

1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 2. The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse’s license by a preponderance of the evidence. See A.R.S.§ 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the

contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact

sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1120 (8th ed. 2004).

4. The Board established by a preponderance of the evidence that Respondent engaged in the conduct alleged in the Complaint and Notice of Hearing.

5. In light of the risk of potential harm to patients as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663(D) 4 and A.R.S. § 32-1664(N). 5

ORDER

In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order: Pursuant to A.R.S. § 32-1664(N), the Board REVOKES registered nurse license number RN108624 and advance practice certificate number AP4232 issued to PHUONING ALEX KEO.

RIGHT TO PETITION FOR REHEARING OR REVIEW

Pursuant to A.R.S. § 41-1092.09, Respondent may file, in writing, a motion for rehearing

or review within 30 days after service of this decision with the Arizona State Board of Nursing. Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C). The motion for rehearing or review shall be made to the attention of Hearing Department,

Arizona State Board of Nursing, 1740 West Adams Street, Suite 2000, Phoenix AZ 85007, and

must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-19-608. For answers to questions regarding a rehearing, contact the Hearing Department at (602) 771-7844. Pursuant to A.R.S. § 41-1092.09(B), if Respondent fails to file a motion for rehearing

or review within 30 days after service of this decision, Respondent shall be prohibited from

seeking judicial review of this decision. This decision is effective upon expiration of the time for filing a request for rehearing or review, or upon denial of such request, whichever is later, as mandated in A.A.C. R4-19-609.

A.R.S. § 32-1663(D) provides that if the Board determines a licensee has committed an act of unprofessional

conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.

Respondent may apply for reinstatement of the said license and certificate pursuant to A.A.C. R4-19-404 after a period of five years DATED this 26th day of June, 2018.

ARIZONA STATE BOARD OF NURSING SEAL

Joey Ridenour, R.N., M.N., F.A.A.N Executive Director

COPIES mailed this 27th day of June, 2018, by First Class Mail and Certified Mail No. [account number redacted] 9611 to:

Phuoning Alex Keo 6832 Karen Lee Lane Peoria, AZ 85382 COPIES of the foregoing mailed this 27th day of June, 2018, to: Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007

Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith