ALJDEC decisions subject to certification as final

19A-29945-MDX · Arizona Medical Board · 2019-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 1, 2019, at 9:00 a.m. APPEARANCES: The Arizona Medical Board (“the Board”) was represented by Sabrina Khan, Esq., Assistant Attorney General; Mark D. Williams, MD (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

FINDINGS OF FACT Background and Procedure 1. Respondent is the holder of Board-issued License No. 29945 for the practice of allopathic medicine in the State of Arizona. 2. 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)(p) and A.R.S. § 32-1401(27)(ee) set forth in the Board’s March 19, 2019 Complaint and Notice of Hearing. 3. The Complaint and Notice of Hearing set a hearing before OAH on May 1, 2019, at 9:00 a.m. The Board mailed the Complaint and Notice of Hearing to Respondent to his address of record.

4. 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 after 9:50 a.m., almost 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 his license to practice allopathic medicine in Arizona. 5. The Board submitted 17 exhibits and presented the testimony of its Investigations Manager, Raquel Rivera. Hearing Evidence 6. Ms. Rivera was not the initial investigator assigned to Respondent’s case. The initial investigator, Rachel Fornaro (“Ms. Fornaro” or “the investigator”), had left her employment by the Board. Ms. Rivera had learned about this case when it was assigned to Ms. Fornaro. Ms. Rivera reviewed Ms. Fornaro’s investigation and was familiar with the complaint against Respondent. 7. On or about July 7, 2017, the Federation of State Medical Boards (“FSMB”) issued a Disciplinary Alert Report, informing the Board that the Colorado Medical Board (“the Colorado Board”) had denied Respondent’s application for licensure based on his unprofessional conduct.[1] The Board opened an investigation. 8. On July 12, 2017, the Board’s staff sent a letter to Respondent’s addresses of record, informing him that the Board had received a complaint against his license.[2] The July 12, 2017 letter did not request that Respondent furnish any documents or response to the complaint. 9. On July 26, 2017, the investigator on behalf of the Board sent a letter to Respondent’s email address of record, requesting that he provide a written narrative to the Board explaining the Colorado Board’s denial of his license application based on unprofessional conduct, as well as a complete copy of all documents or correspondence from the Colorado Board, no later than August 9, 2017.[3] 10. Ms. Rivera testified that Respondent did not provide the narrative requested by the Board’s July 26, 2017 letter or request an extension of time in which to do so. Respondent also did not provide any documents from the Colorado Board. 11. On August 14, 2017, the investigator on behalf of the Board send a second letter to Respondent’s street address of record and email address of record, again requesting that he provide a written narrative to the Board explaining the Colorado Board’s denial of his license application based on unprofessional conduct, as well as a complete copy of all documents or correspondence from the Colorado Board, no later than August 28, 2017.[4] 12. Ms. Rivera testified that Respondent did not provide the narrative requested by the Board’s August 14, 2017 letter or request an extension of time in which to do so. Respondent also did not provide any documents from the Colorado Board. 13. On August 29, 2017, the investigator on behalf of the Board sent an email to Respondent’s two email addresses of record, informing him that she had been trying to reach him, providing a link for him to update his contact information, and requesting that he call her at his earliest convenience.[5] 14. Ms. Rivera testified that the Board received a delivery failure of the investigator’s email to one of Respondent’s email addresses of record, but not the other. Ms. Rivera testified that she assumes the email sent to the other email address went through. Ms. Rivera testified that Respondent did not respond to the investigator’s August 29, 2017 email. 15. On September 7, 2017, the investigator on behalf of the Board send a third letter to Respondent’s street address of record via Fedex, again requesting that he provide a written narrative to the Board explaining the Colorado Board’s denial of his license application based on unprofessional conduct, as well as a complete copy of all documents or correspondence from the Colorado Board, no later than September 21, 2017. The third letter also informed Respondent that the Board had added to the complaint allegations his failures to timely respond to the Board’s requests for information and to keep his contact information current. [6] 16. The Board attached to the September 7, 2017 letter copies of all of its previous attempts to contact Respondent.[7] 17. Ms. Rivera testified that Respondent did not provide the narrative requested by the Board’s September 7, 2017 letter or request an extension of time in which to do so. Respondent also did not provide any documents from the Colorado Board. Ms. Rivera testified that, on September 22, 2017, Fedex returned the September 7, 2017 letter and attachments to the Board because it was unable to deliver the documents to Respondent. 18. Ms. Rivera testified that, between September 22, 2017, and November 2017, the investigator called the mobile telephone number listed on Respondent’s profile and he answered the call. The investigative report described a November 29, 2017 telephone conversation with Respondent, in relevant part as follows: On November 29, 2017, Board staff called [Respondent] on a mobile phone number listed in a previous home address, not the current number listed as it was disconnected. [Respondent] answered and confirmed he was aware the Board was trying to reach him. [Respondent] stated he is retired and is not sure why the Board is still looking into this matter. Board staff stated there was no way to know he was retired and that he was still under the Board’s jurisdiction as he has an active license. [Respondent] stated the Board could take his license away as he is retired and travels a lot. Board staff reiterated timely communication is important and confirmed the Home Address and email listed in his profile was correct as listed. Board staff confirmed additional correspondence would be following. [Respondent] stated he would “check it if he could.”[8]

Ms. Rivera testified that, after the investigator’s telephone conversation with Respondent, the Board was not able to reach Respondent again. 19. On January 9, 2018, the investigator on behalf of the Board send a fourth letter to Respondent’s street address of record via Fedex, US Mail, and email, again requesting that he provide a written narrative to the Board explaining the Colorado Board’s denial of his license application based on unprofessional conduct, as well as a complete copy of all documents or correspondence from the Colorado Board, no later than January 25, 2018. The fourth letter reiterated that the Board had added to the complaint allegations his failures to timely respond to the Board’s requests for information and to keep his contact information current.[9] 20. Ms. Rivera testified that the January 9, 2018 letter was Respondent’s last chance to respond to the Board’s investigation. Ms. Rivera testified that he did not file any response or request an extension of time in which to file a response. 21. On January 30, 2018, the investigator sent an email to the Colorado Board about its denial of Respondent’s license application. The Colorado Board stated that it did not have any publicly available information that it could release, but provided Respondent’s license application and explanations for the “yes” answers on the application.[10] The Colorado Board declined to provide an official order denying Respondent’s license application. 22. The Board submitted Respondent’s Colorado Board profile, which showed that he had been licensed on July 9, 1987, and that the license had expired on May 31, 1993, but did not show any discipline or actions by the Colorado Board against the license or Respondent.[11] 23. The Board also submitted the Colorado Board’s Licensing Panel Minutes from its April 19, 2017 meeting, which included among “Old Business” that “[t]he Panel reviewed the application and supplemental materials” and “[a] motion was made, seconded and carried to deny [Respondent’s] application for a Colorado Medical License.”[12] The minutes were signed by the Chairman of the Colorado Board’s Licensing Panel. 24. The Board submitted Respondent’s response email to the investigator’s email about the complaint allegations, the Board’s efforts to contact him, and his opportunity to surrender his medical license. On May 18, 2018, Respondent sent an email to the investigator, stating “I surrender.”[13] 25. On June 1, 2018, the investigator sent an email to Respondent to which she attached an Order for Surrender of License and Consent to the same, which she requested that he sign, date, and return to her by 3:00 p.m. on June 6, 2018.[14] 26. Ms. Rivera testified that Respondent did not return a signed consent agreement surrendering his license to the Board. 27. On July 23, 2018, the investigator submitted a subpoena to the Colorado Board for additional information regarding the denial of Respondent’s license application. On July 24, 2018, the Colorado Board’s staff stated that the subpoena would be reviewed at the August 15, 2018 meeting of the Colorado Board’s Licensing Panel.[15] 28. On August 22, 2018, the Colorado Board’s staff informed the Board’s investigator that “[a]fter careful consideration of the subpoena and a review of any potential responsive documents related to the case, [the Colorado Board] voted to deny the request, as no additional responsive documents are available for release under Colorado statute.”[16] 29. Ms. Rivera testified that the Board never received the Colorado Board’s official record or its order or letter of denial of Respondent’s license application. 30. On August 31, 2018, Ms. Fornaro prepared her investigative report to the Board, opining that Respondent had committed unprofessional conduct as defined by A.R.S. §§ 32- 1401(27)(ee) and 32-1401(27)(p).[17] Ms. Rivera testified that she agreed with Ms. Fornaro’s opinion regarding Respondent’s acts of unprofessional conduct. 31. On August 31, 2018, Ms. Fornaro send another letter to Respondent via email, informing him that the Board’s investigation was near completion, enclosing a link to allow him to review the records of the investigation, and informing him that he had one more opportunity to address the complaint allegations.[18] 32. Ms. Rivera testified that Respondent failed to provide any supplemental response to the Board’s investigation. 33. On September 27, 2018, the Board’s Staff Investigational Review Committee (“SIRC”) reviewed the complaint against Respondent, opined that the evidence substantiated Respondent’s unprofessional conduct under A.R.S. §§ 32- 1401(27)(ee) and 32-1401(27)(p), and recommended that Respondent should be given the opportunity to surrender his license in lieu of formal proceedings, but that if he did not take that opportunity, his license should be revoked.[19] 34. The Board submitted a lengthy email from Respondent dated December 9, 2018, in which he stated that he “[was] unsure about why the CO board denied my licensure and why the AZ board is now recommending revocation.” Respondent summarized four letters that he had previously received from the Board about patient complaints in July 2016. Respondent stated that he would be unable to attend any hearing, but that his email could be presented there.[20] 35. Ms. Rivera testified that Respondent has never provided any narrative of why the Colorado Board denied his license application and has never provided any documents relating to the denial. 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.[21] 2. 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.[22] 3. 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.[23] Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”[24] 4. The Board established by clear and convincing evidence that the Colorado Board denied Respondent’s application for licensure. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32- 1401(27)(p).[25] 5. The Board established by clear and convincing evidence that Respondent repeatedly failed to respond to the Board’s requests for information and documentation. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(ee).[26] 6. Respondent’s repeated failures to respond to the Board’s communications or to attend the hearing indicate that he cannot be regulated. Respondent’s acts of unprofessional conduct furnish grounds for the Board to revoke his license to practice allopathic medicine in Arizona under A.R.S. § 32- 1451(M).[27] RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Mark David Williams, M.D.’s License No. 29945 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, May 16, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director Arizona Medical Board ----------------------- [1] See Exhibit 1. [2] See Exhibit 2. [3] See Exhibit 3. [4] See the Board’s Exhibit 4. [5] See the Board’s Exhibit 5. [6] See the Board’s Exhibit 6. [7] See the Board’s Exhibit 6 at 6 – 13. [8] The Board’s Exhibit 14 at 1-2. [9] See the Board’s Exhibit 6. [10] See the Board’s Exhibit 10. [11] See the Board’s Exhibit 7. [12] The Board’s Exhibit 8 at 6. [13] The Board’s Exhibit 11 at 1. [14] See id. at 4. [15] See the Board’s Exhibit 12. [16] The Board’s Exhibit 13. [17] See the Board’s Exhibit 14. [18] See the Board’s Exhibit 15. [19] See the Board’s Exhibit 16. [20] The Board’s Exhibit 17. [21] See A.R.S. § 32-1401 et seq. [22] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [23] See A.R.S. §§ 41-1092.07(G)(2) and 32-1451.04; A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [24] Black’s Law Dictionary at 596 (8th ed. 1999). [25] A.R.S. § 32-1401(27)(p) defines unprofessional conduct by an allopathic physician in relevant part as follows: Having action taken against a doctor of medicine by another licensing or regulatory jurisdiction due to that doctor's mental or physical inability to engage safely in the practice of medicine or the doctor's medical incompetence or for unprofessional conduct as defined by that jurisdiction and that corresponds directly or indirectly to an act of unprofessional conduct prescribed by this paragraph. The action taken may include refusing, denying, revoking or suspending a license by that jurisdiction or a surrendering of a license to that jurisdiction, otherwise limiting, restricting or monitoring a licensee by that jurisdiction or placing a licensee on probation by that jurisdiction. [26] A.R.S. § 32-1401(27)(ee) defines unprofessional conduct by an allopathic physician as “[f]ailing to furnish information in a timely manner to the board or the board's investigators or representatives if legally requested by the board.” [27] A.R.S. § 32-1401(M) provides in relevant part as follows: Any doctor of medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.

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