ALJDEC decisions subject to certification as final

22A-28986-MDX · Arizona Medical Board · 2022-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

John A. Eelkema, MD

Holder of License # 28986

Respondent.

No. 22A-28986-MDX

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 17, 2022 at 9:00 AM.

APPEARANCES: Assistant Attorney General Carrie Smith, Esq., appeared on behalf of the Arizona Medical Board (“Board”) with Dr. Eric Lott, Erinn Downey, and Raquel Rivera as witnesses. Colin Bell, Esq. appeared on behalf of John A. Eelkema, MD (“Respondent”). Respondent observed. Robin Jasper (CCR No. 50286) served as the Court Reporter.

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

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. 28986 for the practice of allopathic medicine in Arizona. Administrative Notice is taken that Respondent was first issued his license to practice in the State of Arizona on January 26, 2001. Respondent’s license is currently suspended.

On January 06, 2022, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on February 17, 2022. Per the Complaint and Notice of Hearing (“Complaint”) the issue to be determined was whether the Board had 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 Ariz. Rev. Stat. §§ 32-1401(27)(f), 32-1401(27)(g), 32-1401(27)(r), 32-1401(27)(s), and 32-1401(27)(kk).

Hearing Evidence

The Board called witnesses Dr. Eric Lott, MD, Erinn Downey, and Raquel Rivera to testify, and submitted Exhibits 1-25 into the record. Respondent did not offer witness testimony but did submit Exhibits 5 and 7-9 into the record. The Complaint and Notice of Hearing and OAH’s February 11, 2022, Google Meet Order were also admitted into the record as their own exhibits. The substantive facts of record are as follows:

On or about March 30, 2021, the Board received a complaint that alleged Respondent had been engaging in inappropriate behaviors in the workplace. Specifically, Respondent was accused of “behaving erratically” and smelling “like alcohol and marijuana” at work. Respondent was also accused of participating in salacious sexual activity in the office and accessing pornographic materials depicting underage individuals on his work computer.

As a result, the Board opened investigation MD-21-0286A into the confirmable facts of alleged unprofessional conduct against Respondent.

Notably, in April 2021, Respondent’s employer, SimonMed, conducted its own investigation regarding the aforementioned allegations. SimonMed concluded that Respondent had “engaged in conduct inconsistent with our policies and accepted practices by inviting someone to visit [Respondent] at our facility,” and held “[i]f this conduct recurs, you will face sanctions, up to and including termination.” No evidence was discovered to establish patients were impacted by Respondent’s conduct.

On April 22, 2021, the Board issued a letter to Respondent to provide notice of complaint MD-21-0286A. Respondent was asked to provide a response no later than May 06, 2021.

On April 29, 2021, the Board advised Respondent’s counsel, Mr. Colin Bell, Esq., that his request to extend the deadline for Respondent’s response was granted and the deadline for response was changed to May 20, 2021.

On May 07, 2021, the Board received an anonymous complaint that alleged Respondent was “an alcoholic in relapse,” that he substituted a gambling addiction for alcohol, and that Respondent had a sex addiction. Attached to the complaint were purported copies of text messages between Respondent and an alleged prostitute, and Respondent’s journal entries including the following, in pertinent parts:

Prurient, semi-nude photographs of a woman’s genitalia.

A photo of a large sums of cash and alcohol.

Sexually explicit messages.

Messages regarding the acquisition of “drugs.”

A journal entry from July 07, 2020, regarding being “besmirched” by Jessica Ortiz, a 34 year old escort, as of October 2019, that lead to Respondent’s procurement of a “burner phone” to communicate with Ms. Ortiz and monetary payments “sugar daddy style.”

Also noted, was Respondent’s wife’s discovery of his affair and activities, resulting in his enrollment in counseling on an unknown date.

On May 20, 2021, the Board received Respondent’s reply to the MD-21-0286A investigation letter. Respondent stated, in pertinent part, as follows:

Respondent denied the use of any illegal drug(s).

Respondent denied the use of alcohol at work.

Respondent denied being under the influence of drugs and/or alcohol at work.

Respondent denied erratic behavior due to the consumption of illegal drugs and/or alcohol.

Respondent denied engaging in prostitution-related activities at work.

Respondent denied ever being in possession of child pornography.

On May 24, 2021, issued an Interim Order for Physician Health Program (“PHP”) Assessment to Respondent. Respondent was advised that he had three (3) days to contact a Board-approved assessor to schedule an appointment, and another ten (10) days to undergo and complete an assessment. Respondent was also advised to provide notice of his chosen assessor and assessment date to the Board, so that the Board could furnish the assessor with the MD-21-0286A investigation case file and other related materials. Respondent was further advised that failing to timely cooperate could result constitute unprofessional conduct in violation of Ariz. Rev. Stat. § 32-1401(ee).

On May 25, 2021, Respondent, by and through his legal counsel, had several email exchanges with the Board regarding Respondent’s request for documentation, whereby Counsel was advised that he was in receipt of all records the Board was required to provide Respondent by statute.

On June 09, 2021, Respondent submitted for his PHP Assessment with Dr. Lott.

On June 15, 2021, Respondent’s drug screen returned positive for marijuana.

On June 29, 2021, the Board received Respondent’s appeal of the Board’s Interim Order pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-16-510, whereby Respondent alleged the Board violated his due process rights.

On July 29, 2021, Dr. Lott submitted his completed assessment of Respondent to the Board. Dr. Lott obtained the following information from Respondent:

Although he initially denied it, Respondent admitted that he invited an escort and known substance user to visit him at work, but demurred that his wife was trying to “ruin” him with divorce. Although Respondent admitted his conduct “devastated” his wife and “broke her heart,” he walked out of couples’ therapy because he felt “ganged up on.”

Respondent admitted that in the past he needed alcohol to fall asleep but no longer relied on alcohol for that purpose. During that time in his life Respondent would drink six to eight packs of beer per night. Per Respondent, three to four cans of beer would currently incapacitate him, but he insisted that he had not consumed a beer in the last four to five weeks. Respondent did admit, however, that he had a whiskey sour one week prior to his assessment. Respondent further admitted that he had resumed drinking a year ago, and consumed about three to four drinks per month since then.

In September 2020, Respondent’s wife found a beer in the refrigerator and began to “track” him because she believed Respondent had relapsed.

Respondent also admitted to recreational cannabis use, and declared that he used it as recently as one week prior to his evaluation.

Respondent has not been issued a Medical Marijuana Card by the Arizona Department of Health Services.

Respondent denied current use of illegal narcotics, but admitted to currently using unprescribed Xanax, and previously trying cocaine and ecstasy in college.

Respondent denied intoxication or impairment in May 2020 while employed at SimonMed, and further denied drug or alcohol use at work.

Respondent confided that another source of stress that led to alcohol use was a lawsuit that alleged his former employer, MDIG, was overpaid $10,000,000.00 by Cancer Centers of America. Despite the company being insolvent due to bankruptcy, Respondent was named individually in the suit and may be held personally liable.

Ultimately, Dr. Lott diagnosed Respondent with Moderate Alcohol Use Disorder, Compulsive Sexual Behavior, Depression, Hypertension, and Diplopia. As a result, eight (8) specific recommendations were made to the Board including monitoring, support groups, abstention from alcohol, and further evaluation.

On September 13, 2021, the Board provided Respondent with Dr. Lott’s Assessment Report, an Interim Consent Agreement (“ICA”) for PHP Participation, a Board-approved PHP list, and an Interim Order for Psychosexual Evaluation (“IOPE”). The Board requested that Respondent sign and return both the ICA and IOPE by September 16, 2021.

On September 16, 2021, the Board provided Respondent with a revised copy of the ICA to reflect a 2-year term based on Dr. Lott’s recommendations. Respondent’s request for a 21-day extension was also denied in light of the Board’s concerns regarding public safety.

On September 22, 2021, Respondent signed the revised ICA for MD-21-0286A.

Respondent did not provide a signed copy of the IOPE to the Board.

On December 14, 2021, a Letter of Non-Compliance issued to Respondent from Community Bridges, Inc.’s (“CBI”) professional medical monitoring program was forwarded to the Board. The letter detailed that Respondent failed to check-in for testing as of December 08, 2021, through December 31, 2021, the date of the letter. The letter further detailed that Respondent had missed two (2) urinalysis examinations and a phosphatidylethanol (“PEth”) blood alcohol test scheduled for December 13, 2021. The letter also advised that Respondent failed to participate in a psychosexual evaluation and also failed to participate in psychological counseling services. Per CBI, multiple attempts had been made to reach Respondent to no avail. In conclusion, CBI opined that Respondent was “[n]ot currently safe to practice until contact [could] be made with further assessment and planning for his level of care” and provided four specific recommendations.

In December 2021, the Board asked Respondent to sign an Order of Surrender (“Surrender“) for his medical license. Respondent declined, stating that he would not agree to any of the unprofessional conduct violations in the Surrender, save his admission regarding the use of Xanax without a valid prescription. Respondent argued that unless the Board was willing to modify the surrender to remove paragraphs 2 and 4-5; regarding Respondent’s diagnosis of Moderate Alcohol Use Disorder and potential compulsive sexual behavior for which additional evaluation was recommended, Respondent’s admission that he let Ms. Ortiz into SimonMed’s office after hours, and that Respondent initially issued a denial of all allegations of the complaint – some of which were later substantiated as part of the investigation, he would not sign the Surrender. The Board denied Respondent’s request to revise the Surrender.

On December 16, 2021, based on his refusal to surrender his license as previously indicated, or enter into an Interim Consent Agreement for Practice Restriction (Restriction“) due to his non-compliance with PHP, the Board re-issued the IOPE to Respondent. Respondent, through his legal counsel, advised the Board that he would not undergo a psychosexual evaluation because the IOPE required him to comply with the evaluator’s recommendations which would not be known until after the evaluation was complete, and because Respondent would be financially responsible for completing any such resulting recommendation(s).

On December 20, 2021, an Investigative Memo was presented to the Board for consideration and review.

On December 22, 2021, the Board held a scheduled public meeting whereby Respondent, represented by his legal counsel, made statements during the Board’s discussion of MD-21-0286A. At that time, Respondent advised that he had “retired” from the practice of medicine and opined further Board action was moot.

On December 23, 2021, the Board issued an Order for Summary Suspension of License against Respondent’s License No. 28986, pending a formal hearing pursuant to Ariz. Rev. Stat. § 32-1451(D).

In closing, Respondent argued that his state and federal due process rights had been violated and that the Board’s investigation was essentially an invalid farce because their policies were irregularly applied to his investigation. Respondent denied that he ever provided false information throughout the course of the Board’s investigation, and that his responses to the Board’s information-gathering efforts illustrated his willingness to be regulated by the Board. Respondent argued that there was insufficient evidence to support any of the allegations against him in MD-21-0286A and that the Board was erroneously acting on unsubstantiated suspicion(s). Per Respondent, his medical license was a property interest. As such, his interests legally compelled the Board to share the totality of their investigatory records with him, to afford him a reasonable amount of time to review their contents, and to refute them if he needed to do so. Respondent compared the Board’s conduct to a criminal matter wherein a defendant would be permitted to review the State’s evidence after entering a guilty plea. To that end, Respondent argued that he had been questioned under duress which contradicted the Board’s objective of protecting the public, as Respondent was a member of the public as well. In sum, Respondent prayed for the Tribunal to overturn his summary suspension and issue an Order recommending that no disciplinary action be taken against his medical license.

In closing, the Board argued that, because Respondent indicated that he would not complete a psychosexual evaluation, because he was noncompliant with PHP monitoring, because he would not agree to an Interim Consent Agreement for Practice Restriction or sign an Order of Surrender, because the Board’s PHP Contractor opined that Respondent was not safe to practice, and because the Board had legitimate concerns regarding Respondent’s continued practice which placed the public and patients at risk as he refused regulated by the Board, sufficient evidence existed to find Respondent in violation of Ariz. Rev. Stat. §§ 32-1401(27)(f), 32-1401(27)(g), 32-1401(27)(r), 32-1401(27)(s), and 32-1401(27)(kk). Thus, the Board beseeched the Tribunal to affirm the summary suspension and asked that an Order be issued recommending the revocation of Respondent’s license to ensure public safety.

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. This matter has been properly brought before OAH for adjudication.

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 non-disciplinary and disciplinary actions against a licensee.”

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, “[c]omitting any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.”

Ariz. Rev. Stat. § 32-1401(27)(s) defines “unprofessional conduct” to include, “[v]iolating a formal order, probation, consent agreement or stipulation issued or entered into by the board of its executive director.”

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 this matter was whether Respondent engaged in acts of unprofessional conduct, and if so, whether grounds existed for the Board to discipline Respondent’s license based on said conduct.

The substantive facts in this matter are clear.

In his initial response to the Board, Respondent denied the allegations in the complaint regarding his conduct. However, during a subsequent assessment Respondent admitted to recent use of a controlled substance that was not prescribed to him. Respondent also admitted excessive use of alcohol and tested positive for marijuana use. Respondent also admitted to allowing an unauthorized visitor into his practice’s offices, after the office was closed, for salacious purposes. This behavior was reckless, as Ms. Ortiz could have accessed confidential patient records and specimens. Notably, although Respondent met the criteria for a health condition that could impair his ability to safely practice medicine, Respondent received a recommendation that he could be safe to practice as long as he entered into a monitoring agreement with the Board and complied with recommendations for aftercare. Respondent, however, was non-compliant with the revised ICA, and missed daily check-ins at CBI beginning on December 08, 2021. Respondent also missed two urine drug screens and a PEth test. Because CBI was unable to reach Respondent after several attempts, they opined that he was not safe to practice until contact could be reestablished and further assessments could be performed to plan for his care.

Here, the Board established by clear and convincing evidence that Respondent engaged in multiple instances of unprofessional conduct.

Therefore, the sole remaining issue to be addressed was 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.

While Respondent had no obligation to testify, he did not present any evidence sufficient to overcome the credible evidence submitted by the Board. Nor was Respondent able to successfully rebut or refute any of the evidence in aggravation presented by the Board against him. Notably, although Respondent vehemently argued that his due process rights had been violated, he offered no authority by which one or more instances could be substantiated as such. What the record reflects, is that Respondent was not entitled to specific documents within a specific period of time. Rather, Respondent was provided reasonable information from the Board within a reasonable amount of time, which was what was required by statute. Additionally, the Board’s Interim Order was investigative in nature, thus there was no right to a hearing until after Respondent’s license was summarily suspended by the Board.

Contrary to Respondent’s opinion, a license to practice medicine is an esteemed privilege, not an inherent property right. The primary duties of a licensed physician included to ensure that they are safe to practice and to work with the Board to ensure their welfare and that of their patients. To effectuate appropriate regulatory compliance, physicians must communicate clearly, accurately, and professionally with Board staff. It is clear from a review of the evidentiary record in this matter that Respondent had consistently failed to meet these rudimentary standards to practice medicine.

The Tribunal finds that Respondent’s conduct established that he could not, and did not want to, be regulated by the Board at this time.

The Legislature for the State of Arizona 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 potential harm to patient samples and/or records, Respondent’s employer, and the risk of potential harm to the public 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 sustained its burden of proof by clear and convincing evidence in this matter. The Tribunal holds that the Board’s allegations of unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1401(27)(f), 32-1401(27)(g), 32-1401(27)(r), 32-1401(27)(s), and 32-1401(27)(kk) against Respondent were established. Thus, grounds exist for the Board to discipline Respondent’s license to practice allopathic medicine in the State of Arizona.

RECOMMENDED DECISION

Based on the foregoing,

IT IS RECOMMENDED that the Board’s December 23, 2021, Order for Summary Suspension of License against Respondent’s License No. 28986 be affirmed.

IT IS FURTHER RECOMMENDED that the Board’s Complaint for case MD-21-0286A be affirmed pursuant to Ariz. Rev. Stat. § 32-1451(D).

IT IS FURTHER RECOMMENDED that Respondent John A. Eelkema, MD’s License No. 28986 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, March 31, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director

Arizona Medical Board

By: Miranda Alvarez

Legal Secretary