ALJDEC - Licensing
23A-56541-MDX · Arizona Medical Board · 2024-04-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of
Mark Chukwuamaka Okafor, MD
Holder of License #56541
For the Practice of Allopathic Medicine
In the State of Arizona.
No. 23A-56541-MDX
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 8, 2023 and January 22, 2024 with the record held open until March 14, 2024 for the purposes of allowing the court reporter’s transcript to be included in the record and post-hearing briefing.
APPEARANCES: Assistant Attorney General Elizabeth Campbell represented the Arizona Medical Board (Board). Sara Stark represented Respondent Mark Chukwuamaka Okafor, MD
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Board Exhibits 1 through 22 and Respondent’s Exhibits E and B.
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent holds license number 56541 issued by the Board in 2018.
2. On July 13, 2018, the Arizona Medical Board (Board) issued a Complainant and Notice of Hearing setting the above entitled matter for hearing on November 8, 2023 at 9:00 a.m. The Complaint and Notice of Hearing provided that the issue for hearing was a complaint regarding Respondent’s license. Through the Complainant and Notice of Hearing, the Board alleged that Respondent committed unprofessional conduct as defined under Arizona Revised Statutes (A.R.S.) §§ 32-1401 27(a), (e), (r), (kk), and 27(tt).
3. A hearing was held on November 8, 2023 and January 22, 2024.
4. At hearing, the Board presented the testimony of Kathleen Coffer, M.D. and Nicole Samaradellis. Respondent testified on behalf of himself and presented the testimony of Martin Mollen, M.D.
5. On May 26, 2020, the Board notified Respondent that it had opened an investigation into Respondent regarding allegations of unprofessional conduct and questionable care. Specifically, the Board received allegations that Respondent inappropriately prescribed antibiotics and narcotics to females with whom he had a sexual relationship with and that he failed to maintain records and establish an appropriate physician-patient relationship prior to issuing prescriptions.
Patient MM
6. Respondent began dating MM in October of 2016. Respondent continued to date MM on and off through early 2020.
7. Using an Internal Medicine History and Physical form, Respondent documented a patient encounter with MM on December 22, 2018. On the encounter note, Respondent documented that his assessment was vaginal flora imbalance symptoms consistent with bacterial vaginosis and that he was prescribing Flagyl.
Respondent testified that the physical exam he performed in connection with the bacterial vaginosis diagnosis was “the act of intimacy.” (TR at 197.) Respondent stated at hearing:
Q. So let's talk about the BV. You just testified · that you did physical exams and that's indicated in the · record here. · · · · What did that entail for you for a BV diagnosis, for MM specifically? · · ·
A. Without getting too graphic, the act of intimacy allows you to touch certain places amongst two consenting adults. And the process of making contact with discharge, digitally or manually is enough to provide the sample for discerning the smell, the characteristic smell of BV. As is the opportunity of even just getting down close to the genitourinary area amongst two consenting adults and seeing, whether it be thin discharge or picking up the smell or the odor, if you will.
8. MM testified that Respondent did not tell her he was performing any kind of medical exam on December 22, 2018. Dr. Coffer explained at hearing that sexual relations do not constitute a physical examination.
9. On December 22, 2018, Respondent wrote on the prescription log for MM that he had prescribed Flagyl 500 mg tabs with no refills. However, the pharmacy’s prescription records show that he had authorized one refill. Respondent admitted that his prescription log was incorrect.
10. Using a similar Internal Medicine History and Physical form, Respondent documented a second patient encounter with MM on February 20, 2020. He documented MM’s chief complaints as pulled muscle, calf swelling, and vaginal odor. He further documented that “exercises with gym trainer led to calf injury (Rt) about 2 days ago.” Respondent documented that he performed a physical exam, including an examination of the affected “[right]” leg. He testified that the physical exam he performed in connection with the documented complaint of vaginal odor was “the act of intimacy.” On February 21, 2020, Respondent prescribed MM thirty Tramadol 50 mg tablets with instructions to take one tablet every 6 hours as needed for pain.
He documented that he prescribed Flagyl and Tramadol. Tramadol is a controlled substance. In his testimony, Respondent claimed that he “definitely” evaluated MM’s calf before he issued the Tramadol prescription.
11. On February 21, 2020, Respondent authorized prescriptions for Tramadol and Flagyl for MM. Respondent documented that he had checked the Arizona Controlled Substances Monitoring Program (CSPMP) before prescribing Tramadol. Respondent’s documentation that he checked the CSPMP before prescribing Tramadol to MM is incorrect. Although he testified that he was aware that he was required to check the CSPMP before prescribing Tramadol, a schedule IV controlled substance, the CSPMP query history report reflects that Respondent did not check the database at the time he prescribed the Tramadol to MM. According to the query history report, the only time Respondent checked the CSPMP in reference to MM was on June 3, 2020, which is after the Board sent its May 26, 2020, notice letter that an investigation had been opened.
12. Respondent’s date for his purported examination of MM’s injury is also incorrect. In Respondent’s written response to the Board, he claimed that he saw MM the night of February 20 into the morning of February 21, 2020, “at which point I PHYSICALLY EXAMINED her affected lower extremity that overnight.”
13. Contrary to Respondent documentation that he examined MM’s leg injury on February 20, 2020, MM testified that she injured her leg during an afternoon workout on February 21, 2020 , The text messages between Respondent and MM reflect that Respondent learned of the leg injury by text the evening of February 21, 2020. By text that same day, Respondent suggested narcotics as an option for pain, and then he texted MM that he had sent in a prescription for Tramadol for pick up the next day.
14. MM testified that Respondent did not examine her injured leg before he prescribed Tramadol. Consistent with the timeline in the text messages, the prescription records from the pharmacy show that Respondent authorized the Tramadol prescription on February 21, 2020. In his documentation dated February 20, 2020, Respondent also documented examining the wrong leg. Respondent documented that MM complaint that she had injured her right leg, that her right calf had severe swelling with ecchymosis (bruising).
15. MM testified that she injured her left leg and she provided a picture of her injured left leg. MM testified that she believed that she had an exclusive sexual relationship with Respondent. She testified that, had she known that Respondent was sleeping with other people, she would not have trusted him with her gynecological concerns and allowed him to treat her gynecological issues. MM testified that Respondent exploited her trust.
Patient KM
16. On December 14, 2017, Respondent prescribed KM Ciprofloxacin 500 mg ; on March 2, 2018, he prescribed KM Fluconazole 15 mg ; on August 19, 2018, he prescribed KM Azithromycin 250 mg; and on September 30, 2018, he prescribed KM Clindamycin 300 mg (State’s Exhibit 12 at 105, 116). Respondent testified that he authorized all of these prescriptions for KM.5 He maintained no medical records supporting these prescriptions.. Using an Internal Medicine History and Physical form, Respondent documented a patient encounter with KM on December 19, 2018. He documented “rash” as the patient’s chief complaint. Respondent documented a physical exam, including an erythematous (reddened) rash diffusely on KM’s abdomen, thighs and legs. KM testified that she had gone to see Respondent at the hospital where they went into a dark conference room for a romantic interlude.
17. KM testified that it was at that time that Respondent saw her rash, which was between her breasts and did not extend to her abdomen, thighs or legs.
Respondent did not document a genitourinary examination on December 19, 2018, and his patient encounter note makes no mention of KM having gynecological concerns. . He also failed to note on his prescription log for KM any prescriptions on December 19, 2018, for gynecological issues. However, pharmacy records reflect that, on December 19, 2018, Respondent prescribed KM Metronidazole (Flagyl) 500 mg, which he claims that he prescribed to treat bacterial vaginosis. He acknowledged authorizing the prescription, but failed to maintain any medical record supporting it.
18. KM testified that Respondent never performed a pelvic examination and never told her that, while they were having sex, he was performing a physical examination. KM testified that she believed her dating relationship with Respondent to be exclusive. Had she known that the relationship was not exclusive, KM would have sought treatment for her rash and her gynecological concerns from someone other than Respondent.
Patient MC
19. On October 1, 2018, Respondent prescribed MC Metronidazole and Diflucan. Respondent testified that he authorized these prescriptions for MC, but admitted that he no medical records supporting the prescriptions. Using an Internal Medicine History and Physical form, Respondent documented a patient encounter with MC on March 11, 2019. He documented “cough” as the patient’s chief complaint.
Respondent documented that he performed a physical exam (including documentation of the patient’s heart rate, respiratory rate, lack of fever, and respiratory examination) and his “plan of care” included a prescription for Azithromycin (“Z Pak”), which he called in.
20. Regarding the purported physical examination, Respondent acknowledged not using a stethoscope, but claimed that “if someone is wearing a tight shirt, you can see whether you have some retractions” and that “[s]ometimes we might - - let’s just say I was able to also look at whether she was using accessory muscles.” Although Respondent claims to have seen MC on March 11, 2019, text messages between Respondent and MC instead demonstrate that he prescribed the Z Pak based on a text message exchange:
March 11, 2019, 4:48 PM
MC: Hey love. . . I feel guilty asking but can you help me with this cough/fever/lost my voice situation? I’ve tried all the [over the counter] & not getting better. I can’t work [crying emoji]
Respondent: That stinks. How high is the fever? What’s your [date of birth] and pharmacy phone #?
MC: I don’t even know my temp. I just know it’s there. Mom scale 99.9 [date of birth redacted] Cvs 480.899.2183 Thank u
March 11, 2019, 10:28 PM
Respondent: Sorry just doing this now, hope they are 24 hours
MC: It’s ok love I can get it in the morning. Can’t thank you enough [heart emoji]
21. On April 4, 2019, Respondent prescribed MC Levofloxacin (Levaquin). Respondent testified that he authorized this prescription for MC, but admitted that he had no medical records supporting the prescription. Using an Internal Medicine History and Physical form, Respondent documented a patient encounter with MC on April 16, 2019. He documented “cough, urinary frequency” as the patient’s chief complaints. Respondent documented that he performed a physical exam. He documented his “plan of care” as “[g]iven recent use of Z pak last month, will [prescribe] Levaquin.”
22. Respondent documented a prescription for Albuterol on his prescription log for Patient MC, but not on the encounter note. Using an Internal Medicine History and Physical form, Respondent documented a patient encounter with MC on April 23, 2019. He documented yeast infection and light vaginal discharge as the patient’s chief complaint. Respondent documented that he performed a physical exam, but that MC had deferred a genitourinary exam. When asked about the physical exam, Respondent explained: “We were intimate.” He documented that he would prescribe Fluconazole (Diflucan). On an Internal Medicine History and Physical form, Respondent documented a patient encounter with MC on August 28, 2019. He documented yeast infection as the patient’s chief complaint. Respondent documented no physical exam, writing that “patient defers exam today.” He documented that he would prescribe Fluconazole (Diflucan). He also failed to note on his prescription log for MC any prescriptions on August 28, 2019, other than Fluconazole. Contrary to his medical record, he prescribed Flagyl to MC on August 28, 2019. He acknowledged authorizing the prescription. Using an Internal Medicine History and Physical form, Respondent documented a patient encounter with MC on December 3, 2019, complete with a physical exam, where he included Flagyl as part of his “plan of care.”
23. Respondent testified that he performed the physical examination of MC “[t]o the extent that I was intimate with her.” On MC’s Prescription Log, Respondent also wrote that he prescribed Flagyl on December 3, 2019. However, while Respondent’s medical records purport to show that he issued a Flagyl prescription for MC on December 3, 2019, the pharmacy records show no Flagyl prescription for MC after August 28, 2019. Board Investigator Nicole Samaradellis testified that she had asked MC if Respondent had performed any examinations, and MC reported that he had not. (TR at 184.)
24. Dr. Coffer testified that medical records should support the prescription provided, have appropriate documentation of what the physician is treating and the findings to support the treatment. Dr. Mollen testified that a physician has an obligation to maintain adequate medical records, which need to be accurate.
25. Respondent admitted that his medical records are “less than 100 percent.” A physician is required to maintain adequate medical records. A.R.S. § 32-1401(27)(e). Testifying on behalf of Respondent, Dr. Mollen acknowledged that the Board’s medical records statute does not make an exception for friends, dates, or girlfriends. Dr. Mollen testified that a physician must maintain medical records even when treating friends and family. Consistently, the AMA Ethics Opinion, which Dr. Mollen testified he had reviewed, requires physicians to document care and treatment provided even to themselves or members of their families. Dr. Mollen acknowledged that the Board statutes and the AMA Code of Ethics require a physician to maintain medical records even when that physician is treating his sexual partners.
26. On cross, Dr. Mollen reviewed the AMA Ethics Opinion on patient physician relationships, which states that a physician-patient relationship exists when a physician serves a patient’s medical needs. Dr. Mollen agreed that by writing a prescription, the physician is serving the patient’s medical needs. Both Dr. Mollen and Dr. Coffer agreed that writing prescriptions for patients is the practice of medicine. It is evident that Respondent was engaged in the practice medicine when he provided MM, KM and MC with diagnoses and treatments. See A.R.S. § 32-1401(22). As a result, and as Dr. Coffer testified, these women became Respondent’s patients.
27. Testifying on behalf of Respondent, Dr. Mollen stated that the purpose of medical records is for the patient to have continuity of care, and, without medical records, it is difficult for a patient to have continuity of care.
28. In August 2020 and September 2020, Respondent sent the Board medical records for Patients MM, KM and MC purporting to document the care he provided to these patients. By submitting medical records containing false information, Respondent committed unprofessional conduct. See A.R.S. § 32-1401(27)(kk). The medical record Respondent provided for the patient encounter with KM on December 19, 2018, is inconsistent with the treatment provided. On the Internal Medicine History and Physical form for that day, Respondent makes no notation of gynecological concerns, a genitourinary examination, or a Flagyl prescription in the medical record. Nevertheless, Respondent prescribed Flagyl, reportedly for bacterial vaginosis, on that date. The medical record Respondent provided for the patient encounter with MC on August 28, 2019, is inconsistent with the treatment provided. On the Internal Medicine History and Physical form for that day, Respondent documented a “yeast infection” as MC’s chief complaint and that he would prescribe Diflucan. He failed to note any prescription other than Diflucan on that date. Contrary to his medical record, Respondent prescribed Flagyl to MC on August 28, 2019. See Exhibit 15, pg. 142.
29. In Respondent’s sworn hearing testimony, he claimed that he had made the medical records contemporaneously with the treatment or the examination. Respondent’s medical records, in view of his hearing testimony and the testimony of patients MM and KM, make his claim of contemporaneous documentation patently false. For example, according to Respondent’s medical records, he reviewed the CSPMP for Patient MM on February 21, 2020. The CSPMP query history shows that he did not. Respondent’s medical record for MM for February 21, 2020, documents an examination of the wrong leg. For Patient KM, he documented an examination of an abdominal/thigh/leg rash, when KM testified that the rash was on her chest. In view of these instances of false documentation as well as the additional inaccuracies listed above, it is evident that Respondent did not make the medical records for patients MM, KM and MC contemporaneously with his treatment as he testified.
30. The relationship between a patient and a physician is based on trust. (AMA Code of Medical Ethics, Opinion 1.1.1. Patient-Physician Relationships State’s Exhibit 20.) Dr. Coffer testified that trust is the foundation of the relationship with the physician and a patient can be emotionally harmed if that trust is breached. Both MM and KM testified that, had they known that their sexual relationship with Respondent was not exclusive, they would not have trusted Respondent to treat them. Patient MM testified that Respondent had exploited her trust. Respondent acknowledged that “[w]hile I don’t register any harm that was actually done to these patients, I think there could have been.”
31. Respondent participated in a neuropsychological evaluation on December 4, 2020. The evaluator recommended that Respondent complete “specific continuing education activity with respect to professional boundaries.” On November 5, 2023, three days before this hearing commenced, Respondent completed the 34-hour PBI course on Professional Boundaries and Ethics. Although he had only recently completed the boundaries and ethics course, at hearing Respondent refused to acknowledge that Patients MM, KM and MC were his patients, testifying that “there’s not really a yes or a no here.”
CONCLUSIONS OF LAW
1. The Board has jurisdiction over Respondent and the subject matter in this case under A.R.S. § 32-3202.
2. 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.
3. The Board established by clear and convincing evidence that Respondent engaged in unprofessional conduct, in violation of A.R.S. § 32-1401(27)(a), when he failed to review the CSPMP in connection with his Tramadol prescription to MM as required by A.R.S. § 36-2606(f).
4. The Board established by clear and convincing evidence that Respondent engaged in unprofessional conduct, in violation of A.R.S. § 32-1401(27)(e), by failing to maintain adequate records, as defined in A.R.S. § 32-1401 (2).
5. The Board established by clear and convincing evidence that Respondent engaged in unprofessional conduct in violation of A.R.S. § 32-1401(r).
6. The Board established by clear and convincing evidence that Respondent engaged in unprofessional conduct, by submitting medical records with false information to the board, in violation of A.R.S. § 32-1401(27)(kk).
7. The Board established by clear and convincing evidence that Respondent
engaged in unprofessional conduct, by prescribing medications without conducting a physican-patient physical examination, in violation of A.R.S. § 32-1401(27)(tt).
8. Because Respondent has committed acts of unprofessional conduct, the Board has authority to discipline his license. A.R.S. § 32-1451(M).
RECOMMENDED ORDER
Based on the foregoing,
IT IS ORDERED that on the effective date of the final order in this matter, the Board shall issue a Decree of Censure with 2 years of Probation.
IT IS FURTHER during the term of Probation, Respondent should be required to complete the CPEP PROBE course on ethics and boundaries together with the follow up six-month maintenance and accountability program (PROBE Plus).
IT IS FURTHER ORDERED that during the term of probation, Respondent should also be ordered to complete at least 5 hours of CME in the appropriate performance and documentation of physical examinations and at least 10 hours of intensive, in person/virtual CME in medical record keeping.
IT IS FURTHER ORDERED that Respondent shall pay to the Board the cost
this formal hearing under A.R.S. § 32-1451(M).
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, April 3, 2024
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically or by mail to:
Patricia E. McSorley, Executive Director
Arizona Medical Board
Elizabeth A. Campbell, Esq.
Office of the Attorney General
Licensing & Enforcement Section
[email redacted]
Sara Stark, Esq.
CHELLE LAW PLC
[email redacted]
By: OAH Staff