ALJDEC decisions subject to certification as final

22A-38223-MDX-RES · Arizona Medical Board · 2023-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Dean R. Silver, M.D.

Holder of License No. 38223

For the Practice of Allopathic Medicine

In the State of Arizona

No. 22A-38223-MDX-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 12, 2022, with the record held open until January 4, 2023

APPEARANCES: The Arizona Medical Board was represented by Assistant Attorney General Elizabeth A. Campbell. Respondent Dean R. Silver, M.D., appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

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

Dean R. Silver, M.D., (Respondent) is the holder of License No. 38223 for the practice of allopathic medicine in Arizona.

On or about November 4, 2022, the Board issued a Complaint and Notice of Hearing to Respondent alleging Respondent had engaged in unprofessional conduct pursuant to A.R.S. § 32-1401(27)(e), A.R.S. § 32-1401(27)(t), A.R.S. § 32-1401(27)(u), A.R.S. § 32-1401(27)(v), A.R.S. § 32-1401(27)(w), A.R.S. § 32-1401(27)(x), and A.R.S. § 32-1401(27)(kk).

MD-18-0983A

The Board initiated case number MD-18-0983A after receiving a complaint from the estate of Patient JW regarding payment Respondent claimed he was owed. Respondent claimed that he was still owed $36,800 from the estate of JW for treatment rendered.

On October 26, 2015, JW sought treatment with Respondent related to her breast cancer. JW paid Respondent $500.

On October 27, 2015, JW signed a “Cost of Care Certification and Agreement” with Silver Institute for Life Extension Medicine/Dean R. Silver, M.D., M.D.(H) (“the Agreement”). As set forth in the Agreement, charges for treatment “are estimated to amount to $6800 /for 3 weeks and I have agreed to pay weekly such amount.” JW initialed Exhibit “A” to the Agreement stating that the treatment was planned to be provided over a period of 3 weeks. The treatment total was shown to be $20,400, or $6,800 X 3.

In October and November 2015, Respondent treated JW with IV therapies.

On November 19, 2015, JW paid Respondent $20,725 ($8,725 + $12,000).

On November 23, 2015, JW paid Respondent $4,550 ($1,825+$2,725).

Between October and November 2015, JW paid Respondent a total of $25,775.

JW died of cancer on July 12, 2016.

Beginning in August 2017, Respondent made claims against JW’s estate for what he asserted were unpaid medical bills in the amount of $36,800.

On December 5, 2017, Respondent sent JW’s executor an invoice showing that a total of $44,500 was due for JW’s treatments.

In March 2018, Respondent sent the executor a copy of the Agreement, but the Agreement had been altered to show $56,800 for 3 weeks’ treatment.

In March 2018, Respondent sent the executor invoices in the varying amounts of $68,500, $55,025, and $57,525.

The cost for the IV infusion ingredients varied between the multiple invoices. No explanation for the differences was documented on the invoices or in the medical records.

As part of its investigation and by letter dated October 25, 2018, the Board requested that Respondent provide JW’s complete medical chart by November 8, 2018.

On November 30, 2018, Respondent, through his attorney, sent the Board a “summary” of JW’s treatments. In this summary, Respondent claimed that JW had received IV treatments on November 11, 12 and 13, 2015.

On November 30, 2018, Respondent, through his attorney, sent the Board JW’s medical records, specifically including IV infusion records. The records sent on November 30, 2018, did not include IV infusion records for Patient JW for November 12 and 13, 2015.

On May 7, 2019, Respondent, through his attorney, provided two additional records purporting to be JW’s IV infusion records for November 12 and 13, 2015.

The two IV infusion records provided in May 2019 lacked the detail, specifically infusion times, included in the IV infusion records sent in April.

JW was in New Jersey on at least November 12 and 13, 2015. Consequently, Respondent could not have treated JW with IV infusions on those dates.

MD-21-0024A

The Board initiated case number MD-21-0024A after receiving notification of a settlement regarding Respondent’s care and treatment of WC, an 85 year-old male patient.

By letter dated February 16, 2021, the Board requested that Respondent provide WC’s complete medical record by March 2, 2021. Respondent provided medical records to the Board in March 2021.

On April 5, 2017, WC signed a Financial Agreement Contract with Respondent agreeing to pay an estimated $20,000 for his course of treatment with Respondent.

WC had only four documented patient encounters with Respondent: March 29, April 3, May 23, and June 21, 2017.

Respondent provided treatment to WC for conditions specifically including dementia related to Alzheimer’s disease. Respondent’s treatment appeared to have consisted primarily of IV infusions.

On June 26, 2017, after WC’s adult daughters, who were also co-trustees of a trust established by WC, expressed concerns about the amount Respondent was billing WC, Respondent discharged WC from his practice.

In a letter to the Board dated November 1, 2021, Respondent attempted to justify the amount he charged WC and claimed that he continued to treat WC with IV therapy until September 27, 2017. Respondent did not submit any medical records to support his assertion that he continued to treat WC after June 26, 2017.

WC paid Respondent at least $114,755 for less than three months of treatment, at least $46,000 of which was billed by Respondent and paid by or on behalf of WC after discharge.

Hearing Evidence

At hearing, the Board presented the testimony of Respondent; Scott Milton Jensen, M.D.; Medical Consultant; Julia Simmons, JW’s sister; and Raquel Rivera, Investigations Manager.

At hearing, Respondent testified on his own behalf and presented the testimony of Jeannette Silver, his wife and Office Manager.

After the Board issued the Complaint and Notice of Hearing, Respondent submitted handwritten medical records for WC that he purportedly located in storage. The handwritten medical records did not look anything like the prior medical records for WC. The Board asserted that the medical records appeared to have been fabricated after the fact.

Dr. Jensen testified that, with respect to WC, the treatment provided was within the standard of care for WC’s condition. Dr. Jensen received records documenting four office visits, on March 29, 2017, April 3, 2017, May 23, 2017, and June 21, 2017. However, Dr. Jensen concluded that the records of those visits Respondent submitted to the Board were not sufficient to justify $114,755.00 in billing. Specifically, Respondent failed to provide any documentation detailing what IV treatments were administered or when. Further, Dr. Jensen opined that the handwritten medical records Respondent later submitted were also inadequate to justify the billing. Dr. Jensen admitted that if Respondent had documentation of IV therapies administered to WC during the time period, it may be enough to justify the billing, but based on the records submitted, the billing was “clearly excessive.”

Ms. Simmons testified that, as the executor of JW’s estate, she attempted to determine if any outstanding balance was owed to Respondent. Ms. Simmons was given varying amounts owed at different times and was concerned with the discrepancies. Upon review of JW’s medical records, Ms. Simmons discovered that JW had purportedly received treatment from Respondent on multiple days when she was out of state.

Respondent testified that he did not know anything regarding the finances of his office and that he signed documents when he was told to sign documents. As such, Respondent was unable to make any comment on the different versions of the agreement signed by JW.

When questioned about JW’s medical records for November 12 and 13, 2015, when JW was out of state, Respondent stated that the medical records for those dates appeared to be an attempt to order the IV treatments in advance of JW’s arrival. Respondent was unable to explain why the patient’s blood pressure and temperature were recorded on the page. Respondent

According to Respondent, after WC was discharged from his care on June 26, 2017, WC returned to seek additional treatment until October 2017. Respondent then started maintaining handwritten medical records separate from WC’s existing file for reasons that were not entirely clear to the Administrative Law Judge. Respondent indicated it was because of WC’s family’s concerns regarding the cost of the care and possible malpractice claims, but denied that he was attempting to hide that WC was a patient of his. Respondent stated that when the malpractice case involving WC was proceeding, he had provided his attorney with all of WC’s medical records. Then, when the Board requested WC’s medical records from Respondent, he merely forwarded the medical records he had previously provided to his attorney to the Board. Respondent asserted that he only discovered the handwritten medical records in a box after receiving the Complaint and Notice of Hearing in this matter.

Respondent testified at the hearing that, during a break, Ms. Silver notified him that they had more treatment plans that he asked leave to submit. Respondent was informed that he had numerous opportunities to provide the medical records to the Board and to the tribunal prior to the hearing. Respondent asserted that he did not know that the Administrative Law Judge did not have the records.

Ms. Silver asserted that the change in price for JW’s treatment was because she wanted to aggressively treat her cancer, which meant higher doses of the IV therapies and chemotherapy. Ms. Silver was unable to explain the medical records indicating therapies given when JW was out of state.

Respondent’s testimony was not credible. Respondent was unable to explain why, when he was being sued for malpractice, he would not have provided his attorney with all of WC’s medical records. Further, Respondent was unable to explain why, when the Board notified him that they were investigating a complaint against him and requested WC’s medical records, he failed to provide all of WC’s medical records. Additionally, Respondent’s statements attempting to explain why the “recently discovered” medical records were handwritten and not kept with WC’s other medical records were nonsensical.

CONCLUSIONS OF LAW

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

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is by clear and convincing evidence. A.R.S. § 32-1451.04.

The legislature created the Board to protect the public. See Laws 1992, Ch. 316, § 10.

A.R.S. 32-1401(2) provides that

“Adequate records" means 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.

The weight of the evidence presented established by clear and convincing evidence that Respondent’s patient records were incomplete and inadequate as detailed above.

The weight of the evidence presented established by clear and convincing evidence that Respondent’s billing of JW included charges for treatment that was not provided and that Respondent attempted to obtain a fee by misrepresentation in using the altered billing agreement to justify increased charges as detailed above.

The weight of the evidence presented established by clear and convincing evidence that Respondent made false and fraudulent statements related to the billing and treatment of JW as detailed above.

The weight of the evidence presented established by clear and convincing evidence that Respondent charged a clearly excessive fee for the treatment provided to WC as detailed above.

The weight of the evidence presented established by clear and convincing evidence that Respondent knowingly made false or misleading statements to the Board regarding the billing and treatment of JW as detailed above.

Therefore, the Board established that Respondent’s conduct constituted unprofessional conduct pursuant to A.R.S. § 32-1401(27)(e) in that he failed or refused to maintain adequate records for his patients as defined by A.R.S. § 32-1402(2).

Further, the Board established that Respondent’s conduct constituted unprofessional conduct pursuant to A.R.S. § 32-1401(27)(t), specifically A.R.S. § 32-1401(27)(v) and A.R.S. § 32-1401(27)(w), in that he charged a fee for services not rendered and attempted to collect fees by misrepresenting the agreed upon fees.

Further, the Board established that Respondent’s conduct constituted unprofessional conduct pursuant to A.R.S. § 32-1401(27)(u) in that he knowingly made false or fraudulent statements in connection with the practice of medicine relating to the billing and treatment of JW.

Further, the Board established that Respondent’s conduct constituted unprofessional conduct pursuant to A.R.S. § 32-1401(27)(x), in that he charged WC a fee that was clearly excessive for the treatment provided as documented in the medical records.

Finally, the Board established that Respondent’s conduct constituted unprofessional conduct pursuant to A.R.S. § 32-1401(27)(kk) in that Respondent knowingly made false statements to the Board regarding the billing and treatment of JW.

Pursuant to A.R.S. § 32-1451(M), “[t]he board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.”

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Board’s final order in this matter, the Board revoke Respondent Dean R. Silver’s License No. 38223 for the practice of allopathic medicine.

It is further recommended that Respondent be assessed the cost of the formal hearing incurred by the Board in this matter.

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.

-54864001

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-137160-45720000Done this day, January 24, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Patricia E. McSorley, Executive Director

Arizona Medical Board

Dean R. Silver, M.D.

28729 N 107th Street

Scottsdale, AZ 85262

[email redacted]

Elizabeth A. Campbell, Esq.

Office of the Attorney General

Licensing & Enforcement Section

2005 N. Central Avenue

Phoenix, AZ 85004

[email redacted]

By: OAH Staff-54864001

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-137160-45720000