ALJDEC decisions subject to certification as final

18A-33045-MDX · Arizona Medical Board · 2018-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 23, 2018. The record was held open until September 19, 2018 to allow the court reporter’s transcript to be a part of the record. APPEARANCES: Respondent Glenn Gary Robertson, MD did not appear. Assistant Attorney General Anne Froedge appeared on behalf of the Arizona Medical Board. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Glenn Robertson, M.D., holds license number 33045 (“license”) for the practice of allopathic medicine in the State of Arizona. 2. On July 13, 2018, the Arizona Medical Board (“Board”) issued a Complaint and Notice of Hearing setting the above entitled matter for hearing on August 23, 2018 at 9:00 a.m. 3. The Complaint and Notice of Hearing provided that the issue for hearing was a complaint regarding Dr. Robertson’s license. Through the Complaint and Notice of Hearing, the Board alleged that Dr. Robertson committed unprofessional conduct as defined under Ariz. Rev. Stat. sections 32-1401(27)(s) and (27)(oo). 4. The Complaint and notice of hearing stated that the Board found that the public health, safety, or welfare imperatively required that it summarily suspend Dr. Robertson’s license pursuant to A.R.S. § 32-1451(D), based upon the information the Board discovered about Dr. Robertson’s conduct during its investigation of the complaint.

5. The July 13, 2018 Complaint and notice of hearing also provides, in relevant part, as follows: A transcript of the hearing, together with a written report of the findings, conclusions and recommended decision of the Administrative Law Judge, will be submitted to the Board for its consideration and determination of the this matter. If the Board finds that your conduct constitutes unprofessional conduct or that you are mentally or physically unable to safely practice medicine, you shall be subject to censure, probation, suspension or revocation of your license, or any combination thereof, for such time, including permanently, and under such conditions as the Board deems appropriate and just, as provided in A.R.S. § 32- 1451.

6. At hearing, the Board presented the testimony of Erinn Downey, Assistant Manager of the Board’s investigations department, and submitted exhibits 1 through 11. 7. Dr. Robertson 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 sixteen minutes to allow Dr. Robertson additional travel time, Dr. Robertson did not appear, personally or through an attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed. Consequently, Dr. Robertson did not present any evidence to defend his medical license. 8. On October 29, 2009, Dr. Robertson entered into a Consent Agreement with the Board. Under the Consent Agreement, Dr. Robertson acknowledged that he read and understood the following stipulated findings of fact: 4. In February 2007, [Dr. Robertson] employed SG and they had a personal relationship. On several occasions, [Dr. Robertson] prescribed SG methylphenidate based upon her existing prescription bottles and referred her to a psychiatrist for mental hygiene disorder.

5. During an investigational interview with Board Staff on August 17, 2007, [Dr. Robertson] admitted that SG was not his patient, that he prescribed the methylphenidate on at least three occasions, that he did not perform a physical exam or contact SG’s previous prescriber of methylphenidate, and that he did not request SG’s other treating physician’s medical records.

6. On August 20, 2007, [Dr. Robertson] signed an Interim Order to undergo certain evaluations. On that same date, [Dr. Robertson] signed an Interim Practice Restriction prohibiting him from practicing clinical medicine.

7. Upon evaluation, [Dr. Robertson] was diagnosed with attention deficit disorder (ADD) for which he had previously been treated. The evaluators also recommended that [Dr. Robertson] address boundaries issues, as they relate to SG.

8. In June 2009, Board staff requested a supplemental report form one of the evaluators. According to the evaluator’s supplemental report dated July 15, 2009, [Dr. Robertson] could return to the practice of medicine provided he complied with certain requirements including psychiatric treatment by a psychiatrist experienced in the treatment of Attention Deficit Disorder.

9. Under the October 29, 2009 Consent Agreement, Dr. Robertson acknowledged that he read and understood the following conclusion of law: 2. The conduct and circumstances described above constitute unprofessional conduct pursuant to A.R.S. § 32-1401(27)(e) (“[f”ailing or refusing to maintain adequate records on a patient.); and A.R.S. § 32-1401(27)(ss) (“[p]rescribing, dispensing or furnishing a prescription medication or a prescription-only device as defined in section 32-1901 to a person unless the licensee first conducts a physical examination of that person or has previously established a doctor-patient relationship.”)

10. On or about June 2, 2018, the Board received a complaint containing allegations that Dr. Robertson sold narcotic prescriptions, kept charts all over his car, house and office, kept incomplete charts, and that he completed paper charts instead of using electronic medical records. The Complaint also contained allegations that Dr. Robertson used cocaine and constantly tried to sleep with his younger female patients. The Board believed that the source of the complaint was someone close to Dr. Robertson. 11. On June 11, 2018, the Board issued a Notice of Investigation & Interim Order for Biological Fluid, Nail and/or Hair Testing (“notice”) to Dr. Robertson. The June 11, 2018 notice provides in relevant part, as follows: The Arizona Medical Board (“Board”) has received the attached confidential complaint alleging that you abuse cocaine. Per Board Policy, you are being ordered to obtain a Biological Fluid, Nail and/or Hair Testing.

The Interim Order for Biological Fluid, Nail and/or Hair testing shall be completed by 5:00 p.m. on June 12, 2018. Please contact, Greenberg and Sucher, P. C. through Kristy Cole at 480.990.3111 extension 1 or via email at [email redacted] to schedule and complete the testing. Any fees associated with the testing are solely at your expense.

12. Ms. Downey retrieved an Arizona Board of Pharmacy prescription monitoring program report regarding Dr. Robertson as a prescriber for all patients. Ms. Downey pulled the report for the date range of June 11, 2017 to June 11, 2018. During that time period, Dr. Robertson wrote 929 prescriptions for benzodiazepines. Dr. Robertson also wrote 3,582 prescriptions for opiate agonists. 13. Dr. Robertson failed to obtain a Biological Fluid, Nail and/or Hair test. 14. On June 14, 2018, the Board issued an Interim Consent Agreement prohibiting Dr. Robertson from engaging in the practice of medicine without first obtaining permission from the Board’s Executive Director. The Board was concerned about Dr. Robertson’s safety in practice. 15. On June 25, 2018, the Board issued an order summarily suspending Dr. Robertson’s license. 16. On June 25, 2018, Dr. Robertson sent his certificate from a medical record keeping course completed at the University of California, Irvine school of Medicine to the Board by email. The email address was the same email address that the board used to send prior correspondence.

CONCLUSIONS OF LAW 1. 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. See Ariz. Rev. Stat. section 32-1401 et seq. 2. The Board alleges that Dr. Robertson committed unprofessional conduct by violating Ariz. Rev. Stat. sections 32-1401(27)(s) and (27)(oo). The Board has the burden of proof by clear and convincing evidence to show that the alleged violations occurred. Ariz. Rev. Stat. section 32-1451.04. 3. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probably or reasonably certain.” Black’s Law Dictionary 674 (10th ed. 2014). 4. The scope of the hearing is limited to matters officially noticed. See Ariz. Rev. Stat. section 41-1092.07(F)(6). 5. The standard of care generally is “what is recognized as acceptable in the community of physicians involved in [a] practice” and may consider individual physicians’ personal approaches to patient care. Smethers v. Campion, 210 Ariz. 167, 175 ¶ 28 and n.7, 108 P.3d 946, 954 (App. 2005) (citing authorities). 6. A physician commits unprofessional conduct by refusing to submit to a body fluid examination or any other examination known to detect the presence of alcohol or other drugs as required b the board pursuant to Ariz. Rev. Stat section 32-1452 or pursuant to a board investigation into a doctor of medicine’s alleged substance abuse. 7. A physician commits unprofessional conduct by failing or refusing to comply with a formal order issued by the Board. 8. The Board has shown by clear and convincing evidence that Dr. Robertson refused to submit to the Board’s June 11, 2018 Interim Order for Biological Fluid, Nail and/or Hair testing. 9. The Board has shown by clear and convincing evidence that Dr. Robertson violated a formal order issued by the Board. 10. Dr. Robertson did not appear for the duly noticed hearing. These actions, combined with his refusal to comply with the Board’s order, show that he cannot be regulated at this time. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board affirm its June 25, 2018 order summarily suspending Respondent Glenn Gary Robertson, MD’s License No. 33045 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, October 9, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director Arizona Medical Board

-----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826