ALJDEC decisions subject to certification as final

18A-29302-MDX · Arizona Medical Board · 2018-07-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Diana H. Hydzik , MD

Holder of License No. 29302

For the Practice of Allopathic Medicine

In the State of Arizona.

No. 18A-29302-MDX

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 25, 2018, at 9:00 a.m.

APPEARANCES: The Arizona Medical Board (“the Board”) was represented by Anne Froedge, Esq., Assistant Attorney General; Diana H. Hydzik, M.D. (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

Respondent is the holder of Board-issued License No. 29302 for the practice of allopathic medicine in the State of Arizona.

The Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on the allegations and charged acts of unprofessional conduct as defined by A.R.S. § 32-1401(27)(a) (namely A.R.S. § 32-1435(A)), A.R.S. § 32-1401(27)(f), and A.R.S. § 32-1401(27)(r) set forth in the Board’s June 19, 2018 Complaint and Notice of Hearing.

The Complaint and Notice of Hearing set a hearing before OAH on July 25, 2018, at 9:00 a.m. The Board mailed the Complaint and Notice of Hearing to Respondent via certified mail to her business and residential addresses of record. The letters were returned as “Return to Sender; Unable to Forward.” The Board also emailed the Complaint and Notice of Hearing to Respondent to her email address of record.

Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the duly noticed hearing did not conclude until 10:18 a.m., more than an hour after the noticed start time, Respondent did not appear, personally or through an attorney, and did not contact OAH. Consequently, Respondent did not present any evidence to defend her license to practice allopathic medicine in Arizona.

The Board submitted 22 exhibits and presented the testimony of two witnesses: (1) Erinn Downey, the Board’s Senior Investigator and Assistant Manager of Investigations, who investigated the complaints against Respondent; and (2) Michel A. Sucher, M.D., an addiction medicine physician with whom the Board regularly consults, who evaluated Respondent.

Hearing Evidence

In 2016, the Board received three complaints regarding Respondent’s treatment of C.S., an approximately 76-year old woman with end-stage Parkinson’s disease and dementia. At the time, Respondent was C.S.’s primary care physician (“PCP”) and medical power of attorney (“MPOA”) for C.S. The three complaints alleged the following concerns:

6.1 On or about November 17, 2016, an investigator for the Arizona Department of Economic Security/Adult Protective Services (“APS”) filed an online complaint that on November 2, 2016, C.S. was seen in the emergency room (“ER”) and the ER physician had written an order for hospice. At that time, C.S. was receiving private care in her home. C.S. was evaluated for hospice and on November 16, 2016, the hospice doctor stated that C.S. was hospice eligible and that palliative care was not appropriate for her because she had end-stage Parkinson’s disease and was nonverbal and immobile for the past 4 years. Respondent as MPOA refused to allow C.S. to be enrolled in hospice, even though C.S.’s second MPOA, husband, and family felt C.S. would benefit from hospice care and that they needed the support of hospice. Respondent told the APS investigator that she was having medical issues of her own and that she felt that C.S. would “get better” with physical therapy.

6.2 On or about November 18, 2016, a hospice worker filed a written complaint with the Board, stating that C.S.’s second MPOA had contacted hospice after the ER physician had written the order for hospice care for C.S. and Respondent refused to sign an order to evaluate C.S. for hospice. The hospice worker visited Respondent at her office to discuss the second MPOA’s request. The hospice worker described the discussion in relevant part as follows:

[Respondent] came out to the waiting room to speak with me. Her appearance was unkempt, perspiring, dirty hair and nails unclipped, open sores on her arms and legs, body odor. She proceed[ed] to state [C.S.’s] symptoms and personal details. When I asked to step out of the waiting room for privacy, she stated we were fine – there were 3 patients and 1 staff within 4 ft. of us who could hear every word. [Respondent] proceeded to state she was very sick herself and needed to take care of herself before she dealt with her representee/ patient, [C.S.]. However she was seeing patients in her office. All 3 patients and 2 staff randomly commented she should not be seeing patients. . . .

6.3 On or about November 20, 2016, the Board received an online anonymous complaint that stated in relevant part as follows:

I am writing this complaint to emphatically encourage and to respectfully request that a thorough mental health and physical health assessment [be] performed on [Respondent] immediately to determine whether or not she is mentally and physically well enough to practice Internal Medicine, and Addiction Medicine at this time. . . . [Respondent] may be of great danger to herself and others at this time. . . . [S]he is not well physically and mentally. Her physical appearance is that of a very sick person. . . . [Her] behaviors and confused memory with repeated misrepresentation of facts, rage and irrational behavior and decisions. [Respondent] . . . takes narcotic medications such as Suboxone daily and [is] drinking alcohol. . . . [Respondent] has rheumatoid arthritis, diabetes, liver and or pancreas condition[s], heart disease, severe fatigue and sleep apnea. . . . [Respondent] has been hospitalized many times . . . . [There was] a time when she allowed patients to operate/manage her medical practice while she was hospitalized in 2016. . . . [Respondent] is severely lacking in what I would consider to be customary ethical boundaries between physician and patient . . . having emotionally intimate relationships with patients to get her needs met for friendship and also for serving her needs for clerical and medical assistant services in her office and for cleaning her home and office. . . .

On November 23, 2016, the Board notified Respondent of the complaints. The Board’s letter requested Respondent’s response to the complaint allegations of inappropriate prescribing, inadequate care and treatment, failure to appropriately evaluate a patient, inappropriate communication with healthcare advocates, failure to adequately supervise staff, and impairment. The Board also referred Respondent for an assessment with a Physician Health Program contractor. The Board also requested that Respondent provide a narrative response to the complaints no later than December 9, 2016.

On December 16, 2016, the Board sent another letter to Respondent, informing her that because she had not responded to the November 23, 2016 letter, the Board was amending the possible to citation to include her failure to timely provide information that the Board had legally requested.

On or about January 20, 2017, Respondent sent a written response to the complaints. Respondent acknowledged that she had experienced health challenges, including exacerbation of seronegative rheumatoid arthritis, a 2014 heart attack, severe obstructive sleep apnea, a brown recluse spider bite in February 2016 that resulted in a severe leg ulcer and vertigo, and a kidney stone and gallstone that resulted in visits to the ER. Respondent stated that she refused to refer C.S. to hospice because she believed that C.S.’s condition would improve with physical therapy.

On January 9, 2017, pursuant to the Board’s referral of Respondent for a physician assessment, Dr. Sucher performed an assessment of Respondent. Dr. Sucher testified that his evaluation of Respondent took approximately 2 hours.

On February 5, 2017, Dr. Sucher issued a report to the Board. Although Dr. Sucher did not expressly opine that Respondent was not safe to practice allopathic medicine, he recommended that she be required to undergo a more extensive evaluation, in relevant part as follows:

While [Respondent] does not appear to meet criteria for a substance use disorder, she is on very high doses of both buprenorphine and alprazolam, which is a benzodiazepine. This combination places her at high risk for respiratory arrest or other significant consequences. This is particularly true in light of her chronic obstructive sleep apnea.

I believe that she may well need detoxification from these medications and possibly has an undiagnosed substance use disorder. While at the present time, I do not find any reason that she would be unsafe to practice, I believe that a comprehensive evaluation by a recognized and Board-approved center would be appropriate to gain a full understanding of her combination of medical issues and to rule out or rule in a substance use disorder and any needed treatment.

Dr. Sucher testified that there was no question that Respondent was physically dependent on the two addictive, potentially impairing substances that she had been prescribed for her various medical conditions. Due to the complexity of the case and his concern that Respondent could have untreated substance abuse, he referred her for a more comprehensive assessment.

Between March 20, 2017, and March 22, 2017, Respondent underwent an Intensive Diagnostic Evaluation at Promises Professional Treatment Centers (“Promises”). On April 24, 2017, Promises issued a Comprehensive Integrated Report of its evaluation of Respondent that concluded that Respondent was not safe to practice. Promises recommended that Respondent should enter a Comprehensive Pain Program where she could be weaned off the inappropriate medications that had been prescribed to her, to participate in a continuing medical education boundaries course, to follow-up with a psychiatrist to treat her depression and insomnia, to follow-up with a sleep specialist, to undertake an exercise regime in consultation with a physical therapist to improve her physical and functional capabilities, to focus on nutrition and eating better, and after she completed the Comprehensive Pain Program, to undergo continued monitoring to ensure that she remained off opioids.

Dr. Sucher testified that Respondent had legitimate serious health issue and that her conditions had been poorly managed. Based on Promises’ evaluation, he believed that Respondent was impaired and that her impairment was detrimentally affecting her practice.

On May 5, 2017, Respondent entered into an Interim Consent Agreement in which she agreed that she would not practice allopathic medicine until she had completed the intensive treatment that Promises recommended, agreed to subsequent monitoring, and submitted a written request to have her unrestricted license reinstated, and the Board’s Executive Director, in consultation with and agreement of the Board’s Investigative Staff and Chief Medical Consultant, agreed to release Respondent from the Interim Consent Agreement.

Ms. Downey testified that to her knowledge, Respondent had not completed any program of intensive treatment or notified that Board of her completion of intensive treatment. The Board submitted Dr. Sucher’s office’s email to the Board’s prior investigator, which confirmed that Respondent had not contacted Dr. Sucher since being discharged from Promises.

Dr. Sucher testified that after Promises made its recommendations, he would have expected Respondent to contact him for a referral to an appropriate treatment plan. However, Respondent had not contacted him.

The Board submitted C.S.’s medical records, which it provided to its medical consultant. The Board also submitted C.S.’s death certificate, which indicated she had died on February 5, 2017, with the cause of death of “Parkinson’s disease with dementia.”

The Board submitted the August 15, 2017 report of its consultant, Haim Zeev Bartall, M.D., on whether Respondent’s treatment of C.S. had departed from the standard of care for allopathic physicians in Arizona. Dr. Bartall opined that Respondent had significantly departed from the standard of care, in relevant part as follows:

Being the PCP of this patient for all these years, I believe that the refusal to reinstate Hospice care in November 2016 was wrong to say the least. Believing that the patient would “get better” with physical therapy was really not an option at this level of advanced disease. Maybe there was a minimal benefit, but definitely not the treatment that would bring some degree of independence at this state of the disease. Besides physical therapy would have imposed an additional financial burden to a family already taxed economically throughout all the years of caring for the patient without any hope of restoring her functional capacity. In my 35 years of medical work, not to mention the years of training, I have not seen any significant improvement in patients at this stage of disease.

Therefore I am very puzzled about this refusal to sign as MPOA the admission to Hospice care, for this terminal end-stage very incapacitating disease which has robbed the patient of her minimal capacity of taking care of the essentials for being non-dependent. . . .

. . . .

[Respondent] preferred to put her own health as an excuse not to make the decision. . . . If a physician is affected by a disease that makes his/her ability to practice Medicine, [then] it is morally mandatory to transfer the care of the patient either permanently or temporarily until [the physician’s] medical situation is managed effectively. . . . [Respondent’s] refusal was aggravated by the fact that [she] was the MPOA of the patient and with her refusal she was going to delay the comfort and the dignity of a patient with an end-stage disease. . . .

In August 2017, Ms. Downey asked Respondent’s attorney at the time whether she intended to follow Promises’ recommendations. On August 23, 2017, the attorney informed Ms. Downey that Respondent had not yet done anything about Promises’ recommendations. On October 5, 2017, Ms. Downey suggested that if Respondent did not want to follow Promises’ recommendations, she could draft a surrender of Respondent’s license. The attorney promised to get a definitive answer from Respondent about her intentions.

In August 2017, Ms. Downey sent Respondent’s attorney at the time a copy of Dr. Bartall’s report for a response. On October 25, 2017, the attorney informed Ms. Downey that he was in the process of terminating his representation of Respondent and that Ms. Downey should contact Respondent directly, but that he would forward the request for a response to Respondent. Ms. Downey then sent Dr. Bartall’s report directly to Respondent for a response. Ms. Downey testified that she never received a response from Respondent.

On November 30, 2017, Ms. Downey sent a letter to Respondent’s address of record, stating that she had tried to call all three telephone numbers of record for Respondent, but none of them were working numbers. Ms. Downey also sent letters to Respondent’s home address by FedEx and to her address of record, a P.O. Box, by regular mail. Ms. Downey asked Respondent if she were interested in surrendering her license and advised Respondent that if she did not contact Ms. Downey, the case would likely move forward to a hearing for revocation.

Ms. Downey testified that Respondent’s license is limited pursuant to the terms of a Consent Agreement and that she did not renew her license during the last renewal cycle. Due to the Board’s pending investigation, the license cannot expire.

The Board submitted evidence of prior actions taken against Respondent’s license. On June 10, 2016, the Board informed Respondent that the Board had determined to issue a non-disciplinary advisory letter for Respondent’s failure to provide a patient’s medical records in a timely manner.

CONCLUSIONS OF LAW

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.

The Complaint and Notice of Hearing that the Board mailed to Respondent at her addresses of record was reasonable and Respondent is deemed to have received notice of the hearing.

The Board bears the burden of proof to establish cause to sanction Respondent’s license to practice allopathic medicine and factors in aggravation of the penalty by clear and convincing evidence. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”

The Board established by clear and convincing evidence that Respondent failed to promptly and in writing inform the Board of her current residence address, office address, and telephone numbers, and any change in this information, as A.R.S. § 32-1435(A) requires. Therefore, the Board has established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(a) (“[V]iolating any federal or state laws, rules or regulations applicable to the practice of medicine.”).

The Board established by clear and convincing evidence that Respondent practiced medicine while she was impaired by addictive substances that had been prescribed to treat her various serious and chronic health conditions. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(f) (“[E]xhibiting a pattern of using or being under the influence of alcohol or drugs or a similar substance while practicing medicine or to the extent that judgment may be impaired and the practice of medicine detrimentally affected.”).

The Board established by clear and convincing evidence that Respondent’s refusal to reinstate C.S.’s hospice care subjected C.S. and her family to unnecessary expense and stress, that the treatment that Respondent insisted on providing to C.S. was not effective in treating her end-stage Parkinson’s disease, and that her refusal to authorize hospice for C.S. delayed the comfort and dignity that hospice could have provided to C.S. and her family. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(r) (“[C]omitting any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.”).

Respondent’s failures to respond to the Board’s communications after May 2017, to provide current addresses and telephone numbers, or to attend the hearing indicate that she cannot be regulated at this time.

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Diana H. Hydzik, M.D.’s License No. 29302 for the practice of allopathic medicine in the State of Arizona shall be revoked.

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, July 31, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director

Arizona Medical Board