ALJDEC decisions subject to certification as final

18F-201400061-DEN · Board of Dental Examiners · 2018-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Michael Wassef, D.D.S.

No. 18F-[number redacted]-DEN

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2018, and May 23, 2018, with the record held open until June 4, 2018.

APPEARANCES: Respondent Michael Wassef, DDS, did not appear. The Arizona Board of Dental Examiners was represented by Assistant Attorney General Mary DeLaat Williams.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Board of Dental Examiners (Board) has authority to regulate and control the practice of dentistry in the State of Arizona. The Board is charged with enforcing the provisions of the Dental Practice Act, A.R.S. § 32-1201 et seq.

Michael Wassef, D.D.S. (Respondent) holds license no. D5171 first issued by the Board on February 22, 2000, for the practice of dentistry in the State of Arizona.

Case No. [number redacted]

On March 20, 2014, the Board issued an Interim Order in Case No. [number redacted] that required Respondent to obtain an in-patient substance abuse evaluation.

On January 23, 2017, Respondent obtained a substance abuse evaluation at a Board-approved treatment facility.

After completion of the evaluation, the treatment facility recommended that, to ensure patient safety, Respondent complete an in-patient substance abuse treatment program followed by an extensive out-patient treatment and substance abuse monitoring.

On March 3, 2017, Respondent signed a Confidential Stipulated Interim Order for In-Patient Substance Abuse Treatment and Practice Restriction (2017 Interim Order) in Case No. [number redacted]-C that required Respondent to obtain in-patient substance abuse treatment within six months and fully restricted Respondent’s dental license pending his compliance with the 2017 Interim Order.

Respondent failed to comply with the 2017 Interim Order and the Board opened Case No. [number redacted].

As of the time of the hearing, Respondent had not complied with the 2017 Interim Order.

Case No. [number redacted]

The Board initiated Case No. [number redacted] after receiving a call from a pharmacist regarding concerns with Respondent’s controlled substances prescriptions for KS (Respondent’s dental assistant). The pharmacist reported that Respondent personally called in prescriptions for KS and that Respondent had been prescribing Soma and Tramadol for KS for more than two years.

As part of the investigation of Case No. [number redacted], Board staff obtained controlled substance prescription monitoring profile reports for Respondent from the Controlled Substance Prescription Monitoring Program (CSPMP) database.

Board staff additionally issued a subpoena to Respondent’s employer for treatment records for AW (Respondent’s wife), KS, and TS (KS’s daughter). No treatment records existed for AW or TS. One page of treatment notes for KS was produced along with some radiographs; KS had been treated by a dentist other than Respondent.

Respondent prescribed the following controlled substances for AW, KS, and TS, who were not patients of record, during 2012 and 2013:

AW: Carisoprodol prescribed on September 19, 2012; October 30, 2012; November 23, 2012; December 9, 2012; January 5, 2013; March 31, 2013; April 27, 2013; May 30, 2013; September 2, 2013; September 18, 2013; and October 15, 2013.

KS: Carisoprodol prescribed on September 4, 2012; October 3, 2012; October 25, 2012; November 14, 2012; December 4, 2012; January 2, 2013; January 13, 2013; February 20, 2013; March 18, 2013; April 13, 2013; May 13, 2013; June 7, 2013; July 18, 2013; August 16, 2013; September 13, 2013; October 7, 2013; November 4, 2013; December 6, 2013; December 11, 2013; APAP/Oxycodone prescribed on November 15, 2012; and Zolpiden Tartrate prescribed on April 9, 2013.

TS: Carisoprodol prescribed on January 25, 2013; February 25, 2013; March 22, 2013; April 18, 2013; May 24, 2013; June 27, 2013; August 7, 2013; August 29, 2013; September 23, 2013; October 11, 2013; October 31, 2013; and December 27, 2013.

As part of the Board’s investigation of Case No. [number redacted], the Board also subpoenaed the treatment records for several patients identified by the CSPMP profile report as having been prescribed controlled substances by Respondent. For the following patients, Respondent’s treatment records did not document controlled substances prescriptions written by Respondent or any therapeutic reason for the prescriptions:

Patient AA: Respondent wrote prescriptions for Triazolam on January 12, 2017 and February 6, 2017 and Oxycodone-Acetaminophen on January 16, 2017.

Patient VB: Respondent wrote prescriptions for Hydrocodone-Acetaminophen on June 29, 2016, and Oxycodone-Acetaminophen on November 18, 2016.

Patient KD: Respondent wrote prescriptions for Oxycodone-Acetaminophen on May 20, 2016; September 20, 2016; and January 24, 2017.

Patient JAD: Respondent wrote prescriptions for Triazolam on September 1, 2016, and February 23, 2017, and Hydrocodone-Acetaminophen on September 27, 2016.

Patient JCD: Respondent wrote prescriptions for Oxycodone-Acetaminophen on June 26, 2015; October 30, 2015; November 6, 2015; and November 20, 2015.

Patient AE: Respondent wrote prescriptions for Triazolan on February 9, 2017, and Oxycodone-Acetaminophen on February 16, 2017.

Patient SE: Respondent wrote prescriptions for Oxycodone-Acetaminophen on September 28, 2016; October 5, 2016; February 13, 2017; and February 20, 2017; and Triazolam on January 18, 2017.

Patient PG: Respondent wrote prescriptions for Triazolam on October 19, 2016, Oxycodone-Acetaminophen on October 26, 2016, and Tramadol HCL on October 31, 2016; November 7, 2016; and December 16, 2016.

Patient BH: Respondent wrote prescriptions for Diazepam on June 25, 2015.

Patient CS: Respondent wrote prescriptions for Oxycodone-Acetaminophen on July 10, 2015; July 17, 2015; August 10, 2015; and September 23, 2015.

Patient KW: Respondent wrote prescriptions for Oxycodone-Acetaminophen on August 5, 2015, and August 8, 2015.

The standard of care requires a dentist to prescribe controlled substances only to a patient of record and only for an accepted dental therapeutic purpose or for medically indicated supportive therapy in conjunction with managing a patient’s dental needs.

A dentist is required to make and maintain legible written records concerning all diagnoses, evaluations, and treatment of each patient of record, which includes prescription information for all drugs used for patient care and a therapeutic reason supporting the prescription.

Case No. [number redacted]

The Board initiated Case No. [number redacted] after receiving a complaint from Patient SE regarding treatment performed by Respondent.

Patient SE initially presented to Respondent on September 16, 2016. Respondent formulated a treatment plan for Patient SE which included extraction of several teeth, the placement of several implants, immediate upper and lower dentures, and implant supported dentures.

Patient SE’s health history, dated September 16, 2016, indicated high blood pressure and hepatitis or other liver disease. There was no documentation in Respondent’s treatment records for Patient SE regarding Patient SE’s hepatitis or liver conditions or indicating that Respondent contacted Patient SE’s physician about Patient SE’s health conditions.

The financial ledger for Patient SE indicated that Respondent charged Patient SE for immediate upper and lower dentures on September 23, 2016. There was no corresponding entry in Respondent’s treatment notes indicating that Respondent took impressions or placed immediate dentures.

On September 28, 2016, Respondent extracted Patient SE’s teeth nos. 6, 7, 8, 9, 10, 11, 12, 21, 23, 24, 26, 27, and 29. Respondent placed implants in the areas of teeth nos. 5, 6, 11, 12, 22, and 27 with bone grafts and membrane. The implant Respondent placed in the area of tooth no. 11 failed. There was no documented diagnosis in Respondent’s treatment records supporting Patient SE’s treatment.

Respondent did not take a panoramic radiograph or three dimensional films (CBCT scan) prior to placement of the implants and extraction of Patient SE’s teeth.

In conjunction with the treatment on September 28, 2016, Respondent administered one carpule of Septocaine, five carpules of Lidocaine, and nine carpules of Marcaine to Patient SE. Respondent did not record Patient SE’s weight in the treatment record. The amount of local anesthetic exceeded the maximum dosage.

Patient SE presented to Respondent for treatment on February 13. 2017. Respondent prescribed Halcion for Patient SE to take prior to the treatment for minimal oral conscious sedation. Respondent failed to monitor or document Patient SE’s Spo2, blood pressure, or pulse prior to, during, and after the treatment. No informed consent for the sedation was documented in Patient SE’s treatment record.

The standard of care requires a dentist who places implants to take a panoramic radiograph or CBCT scan prior to the placement of the implants.

The standard of care requires a dentist to obtain and document a patient’s informed consent prior to administering sedation to the patient.

The standard of care requires a dentist to monitor and document a patient’s Spo2 and pre-operative, intra-operative, and post-operative blood pressure and pulse when using sedation in conjunction with treatment.

The standard of care requires a dentist to administer no more than the maximum amount of local anesthetic to a patient that is calculated based on the patient’s weight and to record the weight in the treatment record. A dentist is also required to consider a patient’s medical conditions when calculating the maximum amount of local anesthetic to determine whether the medical condition will affect the effect of the anesthetic.

A dentist is required to maintain treatment records for a patient that include, but are not limited to, all treatment notes and diagnoses supporting any treatment rendered.

Hearing Record

On April 16, 2018, the Board issued a Complaint and Notice of Hearing to Respondent alleging Respondent had engaged in unprofessional conduct pursuant to A.R.S. § 32-1201.01(3), (14), (22), and (24).

Prior to the hearing, Respondent submitted a Notice to Withdraw Appeal and Accepting the Board’s Offer (Notice). In the Notice, Respondent indicated it was “clear to [him] that a fair and impartial hearing . . . is not possible.” Respondent also stated that during a settlement conference, the Board “offered to cancel the OAH hearing and present these cases directly to the full dental board” and that he accepted that offer. The Board filed a response to the Notice in which it noted that the present matters were contested cases, not appealable agency actions, that were referred to the Office of Administrative Hearings at Respondent’s request to proceed to a formal hearing in lieu of appearing before the Board for formal interviews on all three cases. The Board also denied that it offered to cancel the hearing to present the cases directly to the Board.

A hearing was held at the Office of Administrative Hearings on May 22, 2018, and May 23, 2018. Respondent did not request to appear telephonically at the duly noticed hearing. Although the start of the hearing was delayed 20 minutes to allow Respondent additional travel time, he 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, Respondent did not present any evidence to defend his license.

Sam Palmer, D.D.S., testified that to issue a prescription to a patient, a dentist needs to have a documented therapeutic reason for the prescription and include the type, amount, and instructions for taking the medication. Dr. Palmer noted that on multiple occasions throughout the records, Respondent wrote prescriptions for the patients identified above and there were no coordinating appointments, prescriptions, and/or therapeutic reasons for the prescriptions noted in the patient treatment records.

John Dovgan, D.D.S., testified regarding Respondent’s treatment of Patient SE. Specifically, Dr. Dovgan testified that Respondent should have contacted Patient SE’s primary care physician for additional information regarding his liver output to determine if he was ready for a major dental procedure. Dr. Dogvan also noted that if a dentist is extracting fifteen to twenty teeth, the patient’s treatment notes should explain why, but Patient SE’s records did not include any diagnosis to support the diagnosis. Dr. Dovgan testified that the amount of anesthetic administered to Patient SE was appropriate for a 350 pound patient, but Patient SE’s treatment notes did not have any notation of his weight.

CONCLUSIONS OF LAW

The Complaint and Notice of Hearing that the Board mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).

The Board has jurisdiction over Respondent and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A).

“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 § 5 (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).

A.R.S. § 32-1201.01 defines unprofessional conduct to include the following:

3. Prescribing, dispensing or using drugs for other than accepted dental therapeutic purposes or for other than medically indicated supportive therapy in conjunction with managing a patient's dental needs.

. . . .

14. Any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.

. . . .

22. Failing to comply with a board order, including an order of censure or probation.

. . . .

24. Failing or refusing to maintain adequate patient records.

A.R.S. § 32-1263 provides grounds for disciplinary action to include unprofessional conduct, as defined in section 32-1201.01. A.R.S. § 32-1263.01 provides that “[f]ailure to comply with any order of the board, including an order of censure or probation, is cause for suspension or revocation of a license.”

A.R.S. § 32-1264 provides as follows:

A. A person who is licensed or certified pursuant to this chapter shall make and maintain legible written records concerning all diagnosis, evaluation and treatment of each patient of record. A licensee or certificate holder shall maintain records stored or produced electronically in retrievable paper form. These records shall include:

1. All treatment notes, including current health history and clinical examinations.

2. Prescription and dispensing information, including all drugs, medicaments and dental materials used for patient care.

3. Diagnosis and treatment planning.

4. Dental and periodontal charting. Specialist charting must include areas of requested care and notation of visual oral examination describing any areas of potential pathology or radiographic irregularities.

5. All radiographs.

Case No. [number redacted]

As of the time of the hearing, Respondent had not complied with the 2017 Interim Order. Respondent’s conduct constituted unprofessional conduct as defined by A.R.S. § 32-1201.01(22).

Such conduct constituted grounds for disciplinary action, including suspension or revocation of Respondent’s dental license pursuant to A.R.S. § 32-1263(A)(1) and A.R.S. § 32-1263.01(C).

Case No. [number redacted]

Respondent deviated from the standard of care by prescribing excessive amounts of controlled substances to Patients AW, KS, and TS without an accepted dental therapeutic purpose or medically indicated supportive therapy in conjunction with managing a patient’s dental needs. Patients AW, KS, and TS were not Respondent’s patients of record.

Respondent also deviated from the standard of care by prescribing controlled substances to Patients AA, VB, KD, JAD, JCD, AW, SE, PG, BH, CS, and KW, who were patients of record, without a documented accepted dental therapeutic purpose or medically indicated supportive therapy in conjunction with managing a patient’s dental needs.

Respondent failed to document numerous prescriptions for controlled substances and a therapeutic reason supporting the prescriptions for Patients AA, VB, KD, JAD, JCD, AE, SE, PG, BH, CS, and KW.

There was a potential for harm in that Patient AW, KS, TS, AA, VB, KD, JAD, JCD, AE, SE, PG, BH, CS, and KW could have become addicted to or dependent on controlled substances Respondent prescribed and the controlled substances could have been diverted or sold.

Respondent’s conduct constituted unprofessional conduct as defined by A.R.S. § 32-1201.01(3), A.R.S. § 32-1201.01(14), and A.R.S. § 32-1201.01(24), and a violation of A.R.S. § 32-1264(A).

Such conduct constituted grounds for disciplinary action, including suspension or revocation of Respondent’s dental license pursuant to A.R.S. § 32-1263(A)(1) and A.R.S. § 32-1263(A)(4).

Case No. [number redacted]

Respondent deviated from the standard of care by failing to take a panoramic radiograph or CBCT scan prior to placing implants in the area of Patient SE’s teeth no. 5, 6, 11, 12, 22, and 27.

Respondent deviated from the standard of care by failing to document Patient SE’s informed consent when he prescribed Halcion for Patient SE to take prior to the treatment on February 13, 2017.

Respondent deviated from the standard of care by failing to monitor and/or document Patient SE’s Spo2 and pre-operative, intra-operative, and post-operative blood pressure and pulse after prescribing Halcion to Patient SE for minimal oral conscious sedation in conjunction with the treatment done on February 13, 2017.

On September 28, 2016, Respondent deviated from the standard of care by exceeding the maximum anesthetic dosage for Patient SE and failing to record Patient SE’s weight in the record. Further, Respondent failed to consider Patient SE’s liver conditions which could have impacted the maximum amount of local anesthetic appropriate for Patient SE.

Respondent failed to document the following information in Patient SE’s treatment records: a diagnosis supporting the extraction of teeth nos. 6, 7, 8, 9, 10, 11, 12, 21, 23, 24, 26, 27, and 29; the placement of implants in the areas of teeth nos. 5, 6, 11, 12, 22, and 27; and a documentation of the impressions for and delivery of immediate dentures.

There was a potential for harm to Patient SE in that Respondent’s failure to take a panoramic radiograph or CBCT scan prior to placing implants could have resulted in the implants being placed into the nerves or sinus. Additionally, Patient SE could have experienced complications, including death, from a lack of monitoring while Patient SE was sedated with Halcion.

Respondent’s conduct constituted unprofessional conduct as defined in A.R.S. § 32-1201.01(14) and A.R.S. § 32-1201.01(24), and a violation of A.R.S. § 32-1264(A).

Such conduct constituted grounds for disciplinary action, including suspension or revocation of Respondent’s dental license pursuant to A.R.S. § 32-1263(A)(1) and A.R.S. § 32-1263(A)(4).

Respondent’s failure to comply with the 2017 Interim Order and failure to attend the hearing in this matter established that Respondent cannot be regulated at this time.

RECOMMENDED ORDER

Respondent’s License No. D5171 shall be revoked on the effective date of the Order entered by the Board.

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, June 25, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Elaine Hugunin, Executive Director

Board of Dental Examiners