ALJDEC decisions subject to certification as final

19A-53075-MDX · Arizona Medical Board · 2019-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 2, 2019 APPEARANCES: No representative appeared for James Ryan, M.D.; Anne Froedge, Esq. for the Arizona Medical Board ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT The Arizona Medical Board (“Board”) is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. On March 29, 2019 the Board issued a Complaint and Notice of Hearing setting this matter for hearing at 9:00 a.m. May 2, 2019. No representative appeared for James Ryan, M.D at the scheduled hearing- time, and the matter was convened in his absence at about 9:15 a.m. The Board presented the testimony investigator Bob Kessler and practice consultant Kathleen Coffer, M.D. Dr. Ryan holds License No. 53075 for the practice of allopathic medicine in the State of Arizona. Dr. Ryan’s license was suspended at the time of the hearing. Through the Complaint, the Board alleges that Dr. Ryan committed unprofessional conduct by failing to comply with a Board Order. More specifically, the Board received information showing that Dr. Ryan might not be safe to practice and it issued an Interim Order requiring him to undergo a psychosexual evaluation. After Dr. Ryan made clear that he would not comply with the Order, the Board offered him the opportunity to resolve the matter through a consent agreement. Dr. Ryan was unwilling to do so, and the Board determined that an emergency existed and summarily suspended his license. Dr. Ryan was licensed in California until that license expired on January 31, 2017. During the Board’s investigation of this matter, Dr. Ryan explained that he would have surrendered his California license but that was not possible because California has an open investigation. The Board received from the California medical board an Accusation, which is equivalent to a Board-complaint in Arizona. In the Accusation, the California board alleges that Dr. Ryan had inappropriate physical contact with two patients and that he was prescribing for a patient that he began dating and possibly diverting from that patient. As of the hearing date in this matter, California had scheduled a hearing to be conducted in October 2019 at which the merits of its allegations would be addressed. The Board began an investigation of Dr. Ryan to verify whether he was safe to practice, but that investigation did not consider whether California’s allegations are true. On February 15, 2019, the Board conducted an Investigational Interview of Dr. Ryan that was attended by Mr. Kessler, Dr. Coffer, and Raquel Rivera, who is Mr. Kessler’s supervisor. On many occasions during that interview, Dr. Ryan stated that he had been delirious (from overwork) during the times at issue in California’s Accusation and that he could not recollect many of the events forming the bases of California’s allegations. Dr. Ryan also told the interviewers that California’s allegations were perpetrated by his ex-wife and that the patients who made the allegations against him were sent to him by her powerful family as part of a contentious divorce. Dr. Coffer testified that Dr. Ryan presented no evidence to substantiate this claim. During the interview, Dr. Ryan was informed that the Board was ordering him to undergo a psychosexual evaluation. A psychosexual evaluation is a comprehensive evaluation that typically lasts three days and includes a history and physical examination; a psychological evaluation, including psychological testing; a psychiatric evaluation; a sexual history; a review of the use of addictive chemicals; a neuropsychological evaluation; and polygraph testing. Dr. Coffer explained that psychosexual evaluations are ordered when there are allegations of inappropriate touching or boundary issues. The evaluation determines whether there may be recidivism for either nonsexual or sexual behaviors, and what treatments might be used to render a physician safe to practice. Dr. Coffer had concerns as to Dr. Ryan’s ability to practice safely because he had been charged with inappropriate touching of two patients, with engaging in an inappropriate dating relationship with a third patient, and with prescribing without keeping proper records and continuing to prescribe while in a dating relationship with a patient. In addition, during the interview he was using “distancing” statements such as “I don’t recall” or “that doesn’t sound like me,” he would segue to his divorce, he often had to be redirected, he made the admission that he had practiced while delirious, and he acknowledged having issues with concentration because he was not taking medication for his ADHD. Dr. Coffer’s opinion was that a psychosexual evaluation of Dr. Ryan was warranted because there were multiple allegations regarding inappropriate touching or boundary issues occurring on multiple occasions, the patients were mental health patients which raises dependency/co-dependency issues, he has been licensed as a physician for a relatively short time, and because of Dr. Ryan’s distancing statements and acknowledgement that he had been practicing when delusional. As part of its investigation, California’s board had Dr. Ryan undergo a physical and a psychiatric examination. Dr. Coffer testified to the effect that California’s examination did not include the same level of scrutiny as a psychosexual evaluation and was not sufficient to meet the Board’s requirements in Dr. Ryan’s case. She also testified that although Alan Abrams, M.D. concluded in November 2017 that Dr. Ryan was safe, Dr. Abrams’s report shows that more investigation would be required to determine whether Dr. Ryan had engaged in the alleged inappropriate sexual behavior, which she considered to be inconsistent with a finding that he was safe. The Board issued its Interim Order on February 15, 2019. The Order required Dr. Ryan to schedule the psychosexual evaluation within fourteen days of that date and to undergo the evaluation within sixty days. After the Board presented the Interim Order to Dr. Ryan, he exchanged emails and had other commutations with the Board staff in which he vacillated between agreeing to undergo the evaluation and declining to do so. The Board extended the deadline by which the evaluation had to be conducted, but Dr. Ryan ultimately told the Board that he would not undergo the evaluation and explained that he planned to stop practicing medicine. The Board informed Dr. Ryan that if he chose not to undergo the evaluation he could surrender his license or have a practice restriction placed on the license (forbidding him to practice until he was found to be safe to practice). Dr. Ryan was unwilling to consent to either of these options. Because Dr. Ryan was unwilling to undergo the psychosexual evaluation or to resolve the matter through a consent agreement, at a public meeting on March 7, 2019, the Board determined that the public health, safety and welfare required that his license be summarily suspended, which it did. Although Dr. Ryan was provided notice of that Board meeting, he failed to appear. CONCLUSIONS OF LAW The Board has jurisdiction over Respondent and the subject matter in this case. See Ariz. Rev. Stat. § 32-1401 et seq. The Board must prove its allegations by clear and convincing evidence. Ariz. Rev. Stat. § 32-1451.04. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.” Black’s Law Dictionary 674 (10th ed. 2014). Ariz. Rev. Stat. section 32-1451(C) provides that The board or, if delegated by the board, the executive director shall require, at the doctor's expense, any combination of mental, physical or oral or written medical competency examinations and conduct necessary investigations, including investigational interviews between representatives of the board and the doctor to fully inform itself with respect to any information filed with the board under subsection A of this section. These examinations may include biological fluid testing and other examinations known to detect the presence of alcohol or other drugs. The board or, if delegated by the board, the executive director may require the doctor, at the doctor's expense, to undergo assessment by a board approved rehabilitative, retraining or assessment program. This subsection does not establish a cause of action against any person, facility or program that conducts an assessment, examination or investigation in good faith pursuant to this subsection.

Orders for professionals to undergo evaluations such as Dr. Ryan was ordered to undergo are not considered to be disciplinary in nature, but rather are investigatory only. Such an order is permissible because the professional cannot be disciplined without a hearing, at which time he must be accorded due process. See Wassef v. Ariz. Bd. of Dental Exam’rs, 242 Ariz. 90, 93 (App. 2017)(citations from other jurisdictions omitted). Due process generally requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time. Id. The hearing provided Dr. Ryan with the opportunity to present evidence, including evidence to rebut the Board’s allegations, and to cross-examine the Board’s witnesses. Consequently, Dr. Ryan has received due process in this matter. Dr. Coffer provided credible testimony showing that the Board’s decision to require Dr. Ryan to undergo the psychosexual evaluation was appropriate considering California’s allegations against him and the information the Board staff learned during its investigational interview. She also provided credible testimony that multiple factors show that Dr. Ryan may not be safe to practice. The Board offered Dr. Ryan the opportunity to surrender his license or to enter into a practice-restriction agreement in lieu of undergoing the psychosexual evaluation. Because Dr. Ryan may be unsafe to practice, it was appropriate for the Board summarily suspend his license when he failed to avail himself of these options. See Ariz. Rev. Stat. § 32-1451(D). The Board presented clear and convincing evidence showing that it was justified in ordering Dr. Ryan to undergo the psychosexual evaluation. Because Dr. Ryan has failed to comply with the Interim Order requiring that evaluation, he has committed unprofessional conduct under Ariz. Rev. Stat. section 32-1401(27)(s). Because Dr. Ryan has committed an act of unprofessional conduct, the Board has authority to discipline his license. Ariz. Rev. Stat. § 32-1451(M). Considering Dr. Ryan’s failure to appear at this hearing, his failure to appear at the March 7, 2019 Board meeting, that the Board had previously afforded him the opportunity to surrender his license, and that there is credible evidence showing that he may not be safe to practice, revocation is appropriate in this case. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the Order entered in this matter, Dr. James Ryan’s License No. 53075 is 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 is five days after the date of that certification.

Done this day, June 11, 2019.

/s/ Thomas Shedden Thomas Shedden 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