ALJDEC decisions subject to certification as final

20F-201900282-AO-DEN-RES · Board of Dental Examiners · 2021-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Ehsan Pourshirazi, D.D.S.,

Holder of License No. D008789

For the Practice of Dentistry

In the State of Arizona.

Respondent.

No. 20F-[number redacted]-AO-DEN-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 10, 2021 and March 15, 2021.

APPEARANCES: Assistant Attorney General Seth Hargraves, Esq. appeared on behalf of the Arizona State Board of Dental Examiners (“Board”) with Lisa Schmelling and Brown “Skip” Harris as witnesses. Jeffrey Tonner, Esq. appeared on behalf of Ehsan Pourshirazi, DDS (“Respondent”) with Jessica Pruitt and Respondent as witnesses. Eileen Eldridge (Registered Reporting Firm No. R1131) served as the official court reporter for the proceedings.

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 Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

Respondent is holder of License No D008789, issued on July 11, 2013, for the practice of dentistry in the State of Arizona. The license is active and scheduled to expire on June 30, 2023.

On December 28, 2020, the Board issued a Complaint and Notice of Hearing (“Complaint” or “Notice of Hearing”) for Case No. [number redacted] alleging that Respondent had engaged in unprofessional conduct pursuant Ariz. Rev. Stat. §§ 32-1201.01(14) (“Any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.”), and 32-1201.01(24) (“Failing or refusing to maintain adequate patient records.” Respondent was further advised that the aforementioned alleged conduct constituted grounds for disciplinary action, including suspension or revocation of Respondent’s dental license, pursuant to Ariz. Rev. Stat. §§ 32-1263(A)(1), 32-1263(A)(4); specifically, 32-1236(I) and Ariz. Admin. Code R4-11-1304, and 32-1263(A)(5).

Respondent’s Answer to the Complaint was timely received by the Board. Of the Board’s 22 alleged factual allegations, Respondent admitted 9, admitted 1 with a qualification, denied 3, and denied the remaining 9 as inapplicable as alleged.

Because Respondent contested the charges in the Complaint, the Board forwarded the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for a hearing set on February 10, 2021. For administrative reasons the hearing was set for a further hearing on March 15, 2021, to determine whether Respondent violated Ariz. Admin. Code R4-11-1304 and Ariz. Rev. Stat. §§ 32-1201.01(14), 32-1201.01(24), 32-1236(I), 32-1263(A)(1), 32-1263(A)(4), and 32-1263(A)(5) as charged by the Board.

Stipulated Facts

The Board has the authority to regulate and control the practice of general dentistry in the State of Arizona.

Pursuant to Ariz. Admin. Code R4-11-1304 a dentist may utilize a physical anesthesiologist or certified registered nurse anesthetist (“CRNA”) for anesthesia or sedation services while the dentist provides treatment in the dentist’s office or dental clinic after obtaining a Section 1304 permit issued by the Board.

Licensee must also have all appropriate drugs and equipment present.

Pursuant to Ariz. Rev. Stat. § 32-1236(I) a licensee who changes the licensee’s primary mailing address or place of practice address shall notify the board of that change in writing within ten (10) days.

On August 21, 2019, Patient presented to Respondent for consultation for elective full mouth extractions and implant care.

On October 25, 2019, Patient presented for an appointment for extractions under general anesthesia. Respondent employed a CRNA for anesthesia/sedation services without obtaining, possessing, or meeting the requirements to obtain a Section 1304 permit. During anesthesia administration by CRNA, but prior to dental services being performed by Respondent, Patient stopped breathing. Staff contacted emergency medical services, and Patient was transported to a nearby hospital for emergency treatment.

Patient died ten (10) days later.

On or about November 06, 2019, the Board received an Adverse Occurrence Report (“AOR”) from Respondent, reporting that in the course of preparing to perform extractions and deliver dentures on a patient (“Patient”), an adverse event occurred.

On or about May 01, 2020, Respondent closed his office located at 4530 E. Ray Rd. Ste. 170 Phoenix, AZ 85044 and began forwarding his mail to 4626 N. 16th St. Ste. 1218 Phoenix, AZ 85016.

On May 28, 2020, Respondent updated his mailing address with the Board.

Hearing Evidence

At the hearing, the Board presented testimony from Lisa Schmelling – Board Chief Compliance Officer (“Ms. Schmelling”) and Brown “Skip” Harris, D.D.S. – Board Consultant (“Dr. Harris”), and submitted exhibits 1-18. Respondent testified on his own behalf along with Jessica Pruitt – Dental Assistant (“Ms. Pruitt”), and submitted exhibits A-I into the record. The substantive evidence of record is as follows:

During the relevant time period, Patient was a diabetic 76yr old female who suffered from obesity.

Respondent hired a CRNA to provide Patient’s anesthesia and sedation services from LifeGuard Anesthesia (“LifeGuard”), a local mobile service provider.

Patient was scheduled for sedation at 1:30 p.m. on October 25, 2019. She had been instructed not to eat or drink the evening or morning prior to her appointment. After an extended delay Patient inquired, “Are we going to start soon? I am hungry. I have had no food.” CRNA arrived at 12:30 p.m. in a frustrated state. Patient was administered a local anesthetic shortly thereafter and her blood pressure dropped almost immediately. Respondent, who had exited Patient’s room for a brief moment, was notified immediately and instructed staff to call 9-1-1. Respondent, CRNA, and Ms. Pruitt administered cardiopulmonary resuscitation (“CPR”) until paramedics arrived, at which time Patient was given a tracheotomy and taken to the hospital. Respondent followed and remained until Patient was stabilized.

While Respondent waited in the emergency room’s lobby, Patient’s daughter shared that Patient had an unknown severe reaction to anesthesia during a prior dental procedure. No such information had been disclosed by Patient on her intake paperwork.

On October 28, 2019, upon receipt of a request by Patient’s family, Respondent refunded Patient’s $9,295.75 prepayment to her estate.

On November 14, 2019, the Board issued a letter to Respondent acknowledging receipt of his AOR. Attached was a subpoena for Patient’s file, as well as a narrative response request for Respondent due by December 13, 2019.

On November 26, 2019, the Board issued a subpoena to the hospital where Patient was admitted for treatment. On December 24, 2019, the hospital provided Patient’s medical records to the Board.

On December 19, 2019, the Board issued a letter to Respondent to provide notice of a complaint received by Patient’s family, and advise Respondent of the Board’s underlying investigation. The Board requested as a narrative response from Respondent due by December 23, 2019.

Attached to the complaint was a copy of one of Respondent’s advertisements for “A Smile That Lasts A Lifetime,” which noted anesthesia and intravenous sedation was available.

On December 26 2019, the Board received Respondent’s narrative response.

On February 19, 2020, the Board emailed Respondent a request for Patient’s complete chart, whereby Respondent complied with the request the same day.

On February 21, 2020, the Board subpoenaed Patient’s medical records from CRNA.

On March 05, 2020, the Board received CRNA’s reply.

On February 27, 2020, the Board asked Respondent whether he possessed a Section 1304 permit or had proof of training required to obtain one. Respondent replied the same day that he did not have a Section 1304 permit.

During correspondence with LifeGuard between March 02, 2019, and March 04, 2019, the Board was informed that LifeGuard’s professional agreement with dental clients, including Respondent, included anesthesia equipment and general anesthetic agents. LifeGuard advised that it believed Respondent had been providing anesthesia services to patients prior to the execution of their contractual agreement, and that Respondent had completed a training course on oral sedation and possessed a Section 1304 permit.

On or about February 12, 2020, Dr. Harris provided a Dental Consultants Report and Summary to the Board regarding Respondent. [sic] Dr. Harris offered the following opinions:

Respondent’s chart for Patient indicated that she was 180lbs at 5’2”, resulting in a BMI of 32.9. Patient self-reported the following conditions: obesity, hypertension, insulin dependent diabetic, and smoker.

CRNA’s chart for Patient classified her as “a patient with sever systemic disease, substantive functional limitations; one or more moderate to severe diseases.” Patient was also described as having a “Mallampatti Class II airway” and a “Limited Range of Motion” upon open mouth.

On October 25, 2019, CRNA reported 40mins-60mins late for Patient’s appointment. No blood glucose levels were recorded. Although notes indicate CRNA began anesthesia on Patient at 2:11 p.m., there is no record of intravenous fluid use. Notes indicate a 24-gage catheter and nasal cannula were used. Notes reflect 120mg Propofol administered by CRNA at 2:30 p.m. Per the notes, Respondent administered 6-9 carpules of Marcaine at 3:05 p.m. Patient’s health began to deteriorate around 2:45 p.m. CRNA administered 100mg of emergency phenylepharine and 200mg of epinepharine to Patient at 2:59 p.m. CPR began at 3:05 p.m. 9-1-1 emergency services were called at 3:11 p.m. Medics arrived at 3:19 p.m. Intubation successfully noted by CRNA at 3:31 p.m.

Dr. Harris opined that there was not a blanket standard of care applicable to this matter, rather, there were multiple steps that should have been taken to ensure the health, wellbeing, and safety of Patient; namely, appropriate permitting and training, appropriate infrastructure and staff education to perform sedations, appropriate pre-anesthesia assessment in Patient’s medical history, the performance of a preoperative evaluation, pre-anesthesia testing, appropriate dosing, appropriate monitoring, and appropriate airway management.

Dr. Harris identified 9 specific deviations from the standard of care specifically committed by Respondent; with the acknowledgement of 7 aggravating factors and 6 mitigating factors, resulting in actual harm suffered by Patient.

Based on Patient’s medical records, Dr. Harris opined that Respondent never should have believed it was appropriate to place her under general anesthesia in a general clinic setting without appropriate anesthesia training or facility preparation. That said, Dr. Harris opined that the State of Arizona was to blame for the confusion regarding the related laws and regulations. Additionally, Dr. Harris opined that LifeGuard and the owners of Respondent’s clinic also bore responsibility for Patient’s death because LifeGuard failed to ascertain whether Respondent possessed a Section 1304 permit before sending CRNA on assignment, and the clinic had not ensures staff was properly trained to provide sedation and handle emergencies in the clinic. While Dr. Harris did opine that Respondent should have known all laws and regulations related to his practice of dentistry, specifically as it relates to the requirements under Ariz. Admin. Code R4-11-1304, Dr. Harris ultimately opined that the majority of the culpability in this matter rested squarely on the shoulders of CRNA, stating “[CRNA] is clearly where the majority of the blame falls.” Per Dr. Harris, CRNA “lost control of [Patient],” and should have expected the dose of Propofol he administered to cause apnea.

Dr. Harris, in his expert opinion, concluded that “[Patient] likely died from anoxic brain injury from hypoxia due to Propofol induced apnea and failure to maintain and control [Patient’s] airway and properly ventilate.” The duties and responsibilities identified in Dr. Harris’ opinion do not belong to Respondent. They belong to CRNA. “While [Respondent] clearly had a responsibility to permit, properly ensure that he created a safe environment for his patients and properly assess the risks of [Patient] during sedation, ultimately the responsibility for airway control and ventilation lies with [CRNA].”

On May 20, 2020, the Board issued a letter to Respondent to advise that it would review his matter at a meeting scheduled for 8:00 a.m. on June 05, 2020. On May 27, 2020, the Board received its correspondence to Respondent returned as “vacant unable to forward” by the United States Postal Service.

Closing Arguments

In closing, the Board argued that Respondent’s employ of CRNA amounted to a violation of Ariz. Admin. Code R4-11-1304 because Respondent did not possess a Section 1304 permit, and that Respondent’s ignorance of the regulation did not excuse his conduct. The Board also argued that the harm in the case was clear: Patient lost her life as a direct result of the treatment she received while in Respondent’s care. The Board further argued that Respondent no only advertised anesthesia and sedation services, that he performed them as well, as evidenced by his long-standing relationship with LifeGuard. The Board opined that sufficient evidence in the record existed to find Respondent committed multiple statutory and regulatory violations, and failed to take any responsibility or accountability for the role he played in Patient’s demise; amounting to gross dental incompetence. As such, the Board asked that Respondent’s license be revoked and that the Board be reimbursed its litigation-related expenses.

In closing, Respondent argued that the Board failed to establish a violation of the standard of care or unprofessional conduct because no pathologist was presented to establish Respondent caused harm to Patient, and Dr. Harris decline to speculate how the outcome may have been different had Respondent possessed a Section 1304 permit. Respondent further argued that he is winding down his Arizona practice, as he plans to have 95% to 98% of client cases completed and/or transferred by August 2021, and will only see patients in California where he was initially licensed.

CONCLUSIONS OF LAW

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

The Board bears the burden of proof to establish that Respondent committed unprofessional conduct that furnishes cause to discipline his license to practice dentistry in the State of Arizona by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Pursuant to Ariz. Rev. Stat. § 32-1201(13) “disciplinary action” is defined as regulatory sanctions that are imposed by the board in combination with, or as an alternative to, revocation or suspension of a license and that may include:

(a) Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

(b) Imposition of restrictions on the scope of practice.

(c) Imposition of peer review and professional education requirements.

(d) Imposition of censure or probation requirements best adapted to protect the public welfare, which may include a requirement for restitution to the patient resulting from violations of this chapter or rules adopted under this chapter.

Pursuant to Ariz. Rev. Stat. § 32-1263.01(A) the Board may take any one or a combination of the following disciplinary actions against any person licensed under the chapter:

(1) Revocation of license to practice.

(2) Suspension of license to practice.

(3) Entering a decree of censure, which may require that restitution be made to an aggrieved party.

(4) Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party.

(5) Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

(6) Imposition of a requirement for restitution of fees to the aggrieved party.

(7) Imposition of restrictions on the scope of practice.

(8) Imposition of peer review and professional education requirements.

(9) Imposition of community service.

Pursuant to Ariz. Rev. Stat. § 32-1263(A)(1) the Board may impose disciplinary action against a dentist for any unprofessional conduct as defined in section 32-1201.01.

Pursuant to Ariz. Rev. Stat. 32-1201.01(14) “unprofessional conduct” includes any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.

Pursuant to Ariz. Rev. Stat. 32-1201.01(24) “unprofessional conduct” includes failing or refusing to maintain adequate patient records.

Pursuant to Ariz. Rev. Stat. § 32-1263(A)(4) the board may invoke disciplinary action against any person who is licensed under the chapter for committing or aiding, directly or indirectly, a violation of or noncompliance with any provision of the chapter or of any rules adopted by the board.

Pursuant to Ariz. Admin. Code R4-11-1304 a dentist may utilize a physician anesthesiologist or certified registered nurse anesthetist for anesthesia or sedation services while the dentist provides treatment in the dentist’s office or dental clinic after obtaining a Section 1304 permit issued by the Board.

Pursuant to Ariz. Rev. Stat. § 32-1236(I) a licensee who changes the licensee's primary mailing address or place of practice address shall notify the board of that change in writing within ten days. The board shall impose a penalty of fifty dollars if a licensee fails to notify the board of the change within that time. The board shall increase the penalty imposed to one hundred dollars if a licensee fails to notify it of the change within thirty days.

Pursuant to Ariz. Rev. Stat. § 32-1263(A)(5) the Board may impose disciplinary action against a dentist for dental incompetence as defined in section 32-1201.

Pursuant to Ariz. Admin. Code R4-11-1305 if an incident causing a patient physical or mental injury requiring medical intervention occurs in an outpatient facility as a direct result of the administration of general anesthesia, the permit holder and the treating dentist involved shall submit a complete report of the incident to the board within 10 days after the occurrence.

The weight of the evidence presented has established by a preponderance of the evidence that the State of Arizona holds all dentists licensed by the Board to the same standard of care. Above all else, the benefit of treatment must outweigh the associated risks. All licensed dentists must apprise themselves of, and be held responsible to, the State’s Dental Practice Act.

The issue in this matter is very straightforward. The tribunal is tasked with determining whether Respondent committed unprofessional conduct or deviated from the standard of care, based on the evidence presented, and if so, whether Respondent caused potential or actual harm to a patient as a result. To that end, the tribunal must determine, if one or more violations occurred, whether grounds exists for the Board to discipline Respondent’s license.

Here, the substantive facts of record are clear.

The Board established that the conduct and circumstances described in the foregoing factual analysis constituted unprofessional conduct as defined in Ariz. Rev. Stat. §§ 32-1363(A)(1), specifically 32-12.01.01(14) and 32-1201.01(24) by a preponderance of the evidence. The Board also established grounds to take disciplinary action against Respondent’s license based on Respondent’s violations of Ariz. Rev. Stat. §§ 32-1363(A)(4); specifically, 32-1236(I) and Ariz. Admin. Code R4-11-1304.

The record in this matter reflects that Respondent, without a Section 1304 permit or the requisite education and training to obtain one, hired CRNA to provide anesthesia and sedation related services for Patient. Respondent also published anesthesia and sedation advertisements without possessing the aforementioned requisite permit. The record also reflects that Patient, an insulin dependent diabetic, was advised not to eat or drink from the evening prior to her afternoon appointment. The record further reflects that Respondent did not conduct a pre-anesthesia administration examination or take note of Patient’s oxygen levels prior to the administration of her anesthesia. However, the anesthesia-related errors that took place during Patient’s care on October 25, 2019, while unquestionably tragic, cannot be blamed on Respondent. Lastly, the record reflects that Respondent did not notify the Board of his change in primary mailing address within ten (10) days as required by law.

It would be remiss of the undersigned to fail to acknowledge Respondent’s unwavering willingness to comply with multiple Board requests and remain in constant communication with the Board during the underlying investigation. Additionally, Respondent’s openness with Patient’s family after her passing is commendable. Respondent’s conduct evinces his ability to be regulated by the Board and held to their standards of professional practice.

Weighing the gravity of Respondent’s above-captioned conduct against the Board’s interest in protecting the public, the undersigned Administrative Law Judge holds that Respondent’s license shall be disciplined, but not revoked.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that that on the effective date of the Final Order in this matter, a Decree of Censure shall be entered against Respondent Ehsan Pourshirazi, License No. D008789, pursuant to Ariz. Rev. Stat. § 32-1263.01(A).

IT IS FURTHER RECOMMENDED that within twelve (12) months of the effective date of the Final Order in this matter, Respondent shall be required to provide to the Board acceptable written proof that he has four (4) hours of continuing education in Record Keeping, three (3) hours of continuing education in CPR Healthcare Provider, ACLS and PALS, three (3) hours of continuing education in Preventative Services, three (3) hours of continuing education in Dental Diagnosis and Treatment Planning, and four (4) hours of continuing education in Administration of Oral Sedation. Respondent’s failure to timely provide the Board with proof of completion regarding the above-captioned hours of education instruction shall result in the revocation of Respondent’s license.

IT IS FURTHER RECOMMENDED the Board impose a fifty dollar ($50.00) penalty against Respondent for his violation of Ariz. Rev. Stat. § 32-1236(I).

IT IS FURTHER RECOMMENDED the if Respondent fails to pay the entire amount of the penalty on or before thirty (30) days following the effective date of the Final Order in this matter, the Board shall suspend Respondent’s license, effective on such deadline date.

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, April 18, 2021.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Ryan Edmonson, Executive Director

Board of Dental Examiners