ALJDEC decisions subject to certification as final

20A-18944-MDX · Arizona Medical Board · 2020-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Xavier Martinez, MD

Holder of License No. 18944,

Respondent.

No. 20A-18944-MDX

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 05, 2020 at 9:00 AM.

APPEARANCES: Gary Spector, Esq. appeared telephonically on behalf of Xavier Martinez, MD (“Respondent”). Assistant Attorney General Roberto Pulver, Esq. appeared on behalf of the Arizona Medical Board (“Board”) with James Silva as a witness. Amanda Harwell (Arizona CCR No. 50967) served as the court reporter for the hearing.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Decision to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

The Board is the authority for the regulation and control of the practice of allopathic medicine in the State of Arizona.

Respondent is the holder of License No. 18944 for the practice of allopathic medicine in Arizona. Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken that Respondent was first issued his license to practice in Arizona on July 28, 1989. Respondent’s license is currently classified as Inactive with Cause.

On February 21, 2020, the Board referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on May 05, 2020. Per the Complaint and Notice of Hearing for License Revocation (“Complaint”) the issue to be determined is whether the Board has cause to discipline Respondent’s license up to and including revocation, pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) § 32-1451, based on alleged violations of §§ 32-1401(27)(d), 32-1401(27)(f), 32-1401(27)(g), 32-1401(27)(r), 32-1401(27)(aa), and 32-1401(27)(kk).

Case MD-18-0973A

Case MD-18-0973A was opened by the Board on January 11, 2018, to investigate Respondent’s self-notification that he had been charged with Sexual Abuse, a class 5 felony, pursuant to Ariz. Rev. Stat. § 13-1404(A) in CR20180324-001 regarding conduct involving a female patient (“FA”). In his letter, Respondent detailed that he was charged on January 03, 2018, and had his first court appearance the next day whereby he was released without having to post bond. Respondent noted that although he had not yet been indicted, a preliminary hearing had been set for January 24, 2018.

On February 01, 2018, the Board issued a letter to Respondent which stated that Respondent had to provide a written narrative to the Board regarding his alleged violation(s) of Ariz. Rev. Stat. § 32-1404(A).

On February 26, 2020, the Board received Respondent’s reply to the MD-18-0973A investigation letter. Respondent detailed, in pertinent part, as follows:

On December 07, 2017, FA initially presented to Respondent’s office for neurological testing on her arms and legs, as a referral patient, for injuries sustained in an automobile accident that occurred on or about May 25, 2016. FA sustained cervical and lumbar injuries from the accident, and had surgeries performed by other physicians to correct the issues. Because the battery of testing could not be completed in one day, FA returned on December 22, 2017, to complete her examination.

At the conclusion of testing on December 22, 2017, Respondent “placed both his hands on [FA’s] shoulders and ran his hands down both her arms while saying to [FA], ‘Congratulations, you did it and got through it.’” It was at this time that Respondent’s left thumb “accidentally and inadvertently” touched FA’s right breast. Respondent feigned knowing or intentional contact with FA’s breast, and argued that the contact was but for a “fraction of a second” and “inadvertent in its nature.”

Later that day, Respondent telephoned FA “to see how she was coping after testing.” After FA alleged that Respondent had touched her breast inappropriately, Respondent apologized in order to “placate” FA and her “fragile mental state.”

On January 03, 2018, Respondent was questioned by the Tucson Police Department (“TPD”). Respondent was informed by TPD that FA had recorded their December 22, 2017, conversation and provided TPD with a copy. Respondent was subsequently arrested after he conceded to FA’s allegation(s).

Respondent attached approximately 36 pages of medical chart notes to his response letter to the Board.

On February 27, 2018, FA was interviewed by Board staff. FA shared that a friend had recorded her December 22, 2017, phone call with Respondent whereby admissions and apologies by Respondent such as “I just want to apologize, I didn’t want it to come to that” and “I’m really sorry, I didn’t mean to do that” and “Yes it was a mistake and I’m very sorry” were captured.

On March 02, 2018, Respondent was interviewed by Board staff whereby he reenacted his conduct of December 22, 2017, towards FA and stated, “I went like this, and my left thumb skimmed her breast lightly, just right over it very lightly ... I never squeezed her breast.” During the interview Respondent was questioned regarding his use of drugs, whereby he denied “dabbling” in anything other than marijuana. Respondent specifically denied use of cocaine, opioids, amphetamines, and heroin.

On April 07, 2018, Respondent entered into a Plea Agreement in criminal case CR20180324-001 for an amended count of Attempted Sexual Abuse, a class 6 undesignated felony offense, pursuant to Ariz. Rev. Stat. §§ 13-1404(A) and 13-1001, whereby he admitted to the following:

On or about the 22nd day of December 2017, [Respondent], attempted to commit sexual abuse by intentionally or knowingly engaging in sexual contact with [FA] by TOUCHING HER BREST without her consent, in violation of A.R.S. § 13-1404(A), 131001.”

(Emphasis in original.)

From April 09, 2018, through April 11, 2018, Respondent underwent a psychosexual evaluation at the Center for Professional Recovery (“CPR”) in California. There, Respondent disclosed that in 2007 he went through treatment at the Betty Ford Center (“BFC”) in California for substance abuse, followed by five years of monitoring through the Board’s Monitored Aftercare Program. Respondent further admitted that he began consuming alcohol again in 2015, after completing his monitoring in 2013. Ultimately, CPR recommended that Respondent discontinue his work as a physician and enter a full-time treatment program for substance abuse and sexual boundary violations. CPR also recommended that prior to returning to his work, Respondent be evaluated to determine whether he was safe to practice and what restrictions or measures should be taken, if any, were necessary to monitor Respondent.

On May 09, 2018, Respondent submitted a Request for License Inactivation With Cause and Order Inactivating License With Cause to the Board. As a result, Respondent’s medical license was placed on inactive status.

On October 17, 2018, Respondent submitted a Request for Reactivation of License to the Board. Respondent informed the Board that he had successfully completed a 4-month rehabilitation program at Pine Grove in Mississippi. The Board initiated an investigation as a response.

On November 07, 2018, judgement was entered against Respondent. Respondent was sentenced to three years supervised probation and assessed $2,425.00 in penalties and fees.

During the course of its investigation the Board obtained Respondent’s records from Pine Grove, whereby the Board discovered that Respondent had disclosed an extensive history of alcohol and drug abuse, including cocaine and marijuana abuse as recent as 2017. Additionally, Respondent admitted to diverting prescription medication from patients during consultations. The records also reflected that Respondent admitted to violating sexual boundaries with patients and staff, after he failed a polygraph examination regarding the issue, including an incident in 1993 whereby a patient reported Respondent’s conduct to the Board and Respondent knowingly denied any wrongdoing. Pine Grove diagnosed Respondent with Opioid Use Disorder, Other Specified Impulse Control Disorder, Anxiolytic Use Disorder, Avoidant Personality Disorder, Narcissistic Personality Disorder, Antisocial Personality Traits, and Generalized Anxiety Disorder. Ultimately, Respondent was discharged from the program as “guarded” and recommended that he not treat female patients or be alone with female staff members, and that he be chaperoned when reviewing patients’ medication bags.

Upon the Board’s request, a Board consultant (“Consultant”) conducted a review of Respondent’s testing of FA. In a report dated July 12, 2019, Consultant summarized that although Respondent deviated from the standard of care and engaged in unprofessional conduct that resulted in the infliction of psychological trauma upon FA, Respondent nonetheless satisfied the statutory requirements outlined in Ariz. Rev. Stat. § 32-1431(D) in order to have his license reactivated by the Board. Specifically, Consultant noted that Respondent had completed a long-term residential treatment program, an inpatient hospital treatment program and/or an intensive outpatient treatment program, and had been cleared by his physician health program to return to practice with restrictions, work recommendations, and continued care recommendations. Consultant opined that, “As long as [Respondent] follows all the guidelines and recommendations and is monitored carefully, he can be allowed to practice medicine.”

On July 25, 2019, Board investigator Erinn Downey (“Investigator Downey”) submitted her Investigative Report to the Board.

On July 25, 2019, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until August 12, 2019, to provide a written narrative to the Board regarding information contained in Investigator Downey’s Investigative Report.

On August 06, 2019, the Board received Respondent’s reply to the MD-18-0973A investigation letter. Respondent detailed, in pertinent part, as follows:

“A contrite [Respondent], is not desirous or in apposition to factually challenge any of the allegations of the violations of statute that are contained within the investigative report other than the allegation of a violation of Ariz. Rev. Stat. § 32-1401(27)(kk).” Respondent continued,

“As to [an alleged violation of Ariz. Rev. Stat. § 32-1401(27)(kk)], [Respondent] stands by his response to the complaint filed February 01, 2018 that was provided to [the Board] on February 26, 2018 (MD-18-0039).”

On August 22, 2019, the Board’s Staff Investigational Review Committee (“SIRC”) completed their formal report for MD-18-0973A, whereby they noted the following:

Respondent has been practicing in an unsafe manner throughout the duration of his licensure with the Board, which began in 1989;

Respondent’s longstanding personality traits lead to negative consequences which are difficult to fully correct, particularly if Respondent was unmotivated or failed to see his behaviors as harmful or problematic;

Respondent was most likely to re-offend in a covert fashion when no one was watching and could hold him directly responsible for any misconduct, which speaks to his inability to be regulated;

The conduct and violations identified in MD-18-0973A are egregious and clearly rise to the level of license revocation as the evidence has not established that Respondent’s rehabilitation has progressed to the point that would justify allowing his continued licensure, even on a restricted basis.

Ultimately, SIRC recommended that Respondent’s request for Reactivation be denied.

Respondent’s Prior Board History

Case MD-93-0229A

Case MD-93-0029A was opened by the Board on March 23, 1993, based on an allegation of sexual touching and sexual comments by Respondent to a female patient (“RT”).

On November 29, 1994, Respondent entered into a Consent Agreement with the Board. Respondent was required to undergo counseling, and was also required to have a chaperone present during examinations of female patients. On November 14, 1997, the Consent Agreement was terminated.

Case MD-07-0638A

Case ND-07-0638A was opened by the Board on July 18, 2007, based on an anonymous complaint that alleged Respondent had a substance abuse issue. Specifically, Respondent was accused of abusing cocaine and Vicodin, and was also accused of permitting his unlicensed/uncertified office manager (“Manager”) to perform healthcare tasks.

On July 20, 2007, during a subsequent interview with the Board, Respondent admitted that he had written multiple prescriptions for controlled substances to his wife and then diverted them for his own use. Respondent also admitted to taking controlled substances prescribed for his wife that had been issued by other physicians. The Board also discovered that Respondent had prescribed controlled substances to Manager’s sister (“AM”), but had failed to chart a physical exam or patient history to support the prescriptions.

On July 20, 2007, the Board issued an Interim Order to Respondent for residential evaluation/treatment, and biological fluid and hair testing.

On August 16, 2007, Respondent’s drug screen returned positive for benzodiazepines and oxycodone. As a result, on August 16, 2007, Respondent entered into a practice restriction agreement with the Board.

On August 23, 2007, Respondent entered into a treatment program at BFC. On November 20, 2007, Respondent completed treatment. Respondent’s chart noted indicate that initially Respondent presented himself as a victim who did not want to take responsibility for the position he was in, but that he admitted to being an alcoholic and an addict by his mid-treatment point. BFC diagnosed Respondent with Sedative/Hypnotic Dependence, Opioid Abuse, and Generalized Anxiety Disorder.

On November 21, 2007, Respondent entered into a Consent Agreement with the Board to participate in the Board’s monitored aftercare program.

On December 07, 2007, the Board lifted Respondent’s practice restriction.

On February 22, 2008, SIRC recommended a Letter of Reprimand and 5 year probation for Respondent’s conduct.

On October 09, 2008, the Board issued a formal Letter of Reprimand to Respondent and placed him on probation for 5 years.

Closing Arguments

Respondent argued, overall, that his attempts to atone for the mistake he made with FA, and the fact that he has gone sans incident for the last one and a half years, evince his willingness to be regulated by the Board. Respondent further argued that his underlying guilty plea illustrated his ability to take responsibility for his actions. Respondent apologized for his prior instances of untruthfulness during Board interviews, and noted that he was ashamed of his conduct. Respondent vehemently contended that, if given the opportunity, he would comply with as many requirements and restrictions the Board chose to implement in order to reactivate his medical license. In closing, Respondent noted that he remains under the care of mental healthcare professionals and remains actively engaged in outpatient treatment programs.

The Board argued, overall, that Respondent’s 500-some odd days of treatment and appropriate behavior did not outweigh three decades of inappropriate conduct involving sex, alcohol, and drugs. The Board also argued that, in its view, Respondent posed a danger to the public, and that its need to act in the public’s best interest was not outweighed by Respondent’s credentials or any obstacles he had to overcome to attain them. In closing, the Board argued that its burden of proof had been met, and it requested that Respondent’s license to practice medicine be revoked.

CONCLUSION OF LAW

The Arizona Legislature created the Board to protect the public. The Board is the duly constituted authority for licensing and regulating the practice of allopathic medicine. Therefore, the Board has jurisdiction over Respondent and the subject matter in this case.

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. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. The standard of proof is 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.”

Ariz. Rev. Stat. § 32-1451(D) provides that “[i]f the board finds, based on the information it receives under subsections A and B of this section, that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may restrict a license or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection, it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.”

Ariz. Rev. Stat. § 32-1451(M) provides that “[a]ny 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.”

Ariz. Rev. Stat. § 32-1451(U) provides, for the purposes of determining the appropriate disciplinary action under this section, that “[t]he board shall consider all previous nondisciplinary and disciplinary actions against a licensee.”

Ariz. Rev. Stat. § 32-1401(2) defines “adequate records” to mean “legible medical records, produced by hand or electronically, containing, at a minimum, sufficient information to identify the patient, support the diagnosis, justify the treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient and provide sufficient information for another practitioner to assume continuity of the patient's care at any point in the course of treatment.”

Ariz. Rev. Stat. § 32-1401(27)(d) defines “unprofessional conduct” to include, “[c]ommitting a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by any court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.”

Ariz. Rev. Stat. § 32-1401(27)(f) defines “unprofessional conduct” to include, “[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.”

Ariz. Rev. Stat. § 32-1401(27)(g) defines “unprofessional conduct” to include, “[u]sing controlled substances except if prescribed by another physician for use during a prescribed course of treatment.”

Ariz. Rev. Stat. § 32-1401(27)(r) defines “unprofessional conduct” to include, “[v]iolating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director under this chapter.” No intent is required.

Ariz. Rev. Stat. § 32-1401(27)(aa) defines “unprofessional conduct” to include, “[e]ngaging in sexual conduct with a current patient or with a former patient within six months after the last medical consultation unless the patient was the licensee's spouse at the time of the contact or, immediately preceding the physician-patient relationship, was in a dating or engagement relationship with the licensee.” "Sexual conduct" includes:

(i) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual.

(ii) Making sexual advances, requesting sexual favors or engaging in any other verbal conduct or physical contact of a sexual nature.

(iii) Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards.”

Ariz. Rev. Stat. § 32-1401(27)(kk) defines “unprofessional conduct” to include, “[k]nowingly making a false or misleading statement to the board or on a form required by the board or in a written correspondence, including attachments, with the board.”

The issue in the matter at bar is whether Respondent engaged in acts of unprofessional conduct, and if so, whether grounds exist for the Board to discipline Respondent’s license based on said conduct.

The material facts here are not in dispute.

Respondent admitted to the Board’s alleged violations of unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1401(27)(d), 32-1401(27)(f), 32-1401(27)(g), 32-1401(27)(r), and 32-1401(27)(aa). Therefore, the Board has sustained its burden of proof by clear and convincing evidence as to these statutory violations.

Regarding the Board’s alleged violation of unprofessional conduct pursuant to Ariz. Rev. Stat. § 32-1401(27)(kk), the record reflects that Respondent did, on at least one occasion, knowingly make a false statement to the Board. Therefore, the sole remaining issue to be addressed is whether Respondent established one or more affirmative defenses or mitigating factors, and if so, whether those defenses or mitigating factors preclude the Board from disciplining Respondent’s license.

Respondent did not sustain his evidentiary burden on this issue.

Respondent’s written February 26, 2020, response to the Board and March 13, 2020, Answer to Complaint directly and unequivocally contradict his April 07, 2018, Plea Agreement and November 07, 2018, sentencing. The record establishes that Respondent down-played the intent and manner of his contact with FA on December 22, 2017. Respondent’s attempt to feign his subsequent apologies to FA before the Board were also disingenuous. When Respondent provided his response to the Board, he had already been caught by TPD being untruthful about his conduct with FA. Instead of being totally forthcoming with the Board, he again attempted to cast himself in the best possible light, going so far as to allude that between himself and FA, he was the victim, which is undeniably false.

Therefore, the Board has established that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. § 32-1401(27)(kk) by clear and convincing evidence.

In order to deliver effective healthcare to patients, doctors must communicate effectively, accurately, and professionally with patients and other healthcare providers. It is clear from a review of the record that Respondent has not consistently met these rudimentary standards to practice medicine. Despite Respondent’s assertions to the contrary, his conduct establishes that he cannot be regulated at this time.

A license to practice medicine is a privilege, not a right. The Legislature has charged the Board with protecting the public and those who deal with its licensed practitioners. The Board has a legitimate interest in protecting the public. In light of the actual harm to FA and risk of potential harm to patients resulting from Respondent’s unprofessional conduct, the Board established cause to impose a disciplinary sanction against Respondent’s license.

After closely scrutinizing the relevant and substantive evidence of record, the undersigned Administrative Law Judge concludes that the Board has sustained its burden of proof by clear and convincing evidence in this matter. The Tribunal finds that the Board’s allegations of unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1401(27)(d), 32-1401(27)(f), 32-1401(27)(g), 32-1401(27)(r), 32-1401(27)(aa), and 32-1401(27)(kk) against Respondent have been established. Thus, grounds exist for the Board to discipline Respondent’s license to practice medicine in the State of Arizona.

RECOMMENDED DECISION

Based on the foregoing,

IT IS RECOMMENDED that the Board’s Complaint for case MD-18-0973A be affirmed pursuant to Ariz. Rev. Stat. § 32-1451(D).

IT IS FURTHER RECOMMENDED that Respondent Xavier Martinez, MD’s License No. 18944 for the practice of allopathic medicine in the State of Arizona be revoked.

IT IS FURTHER RECOMMENDED that Respondent be assessed the cost of the formal hearing incurred by the Board in this matter consistent with Ariz. Rev. Stat. § 32-1451(M).

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 26, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director

Arizona Medical Board