ALJDEC

99F-051999-MDX · Board of Medical Examiners · 1999-11-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 24, 1999. APPEARANCES: Applicant did not appear. The Arizona Board of Medical Examiners (“BOMEX”) was represented by Assistant Attorney General Gordon S. Bueler. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for hearing on BOMEX’s denial of Applicant’s licensure application. 2. Applicant is the holder of Certificate No. 203057 for the practice of medicine issued by the medical licensing authority for the State of New York on May 1, 1996. 3. On or about March 13, 1998, the Applicant filed his Application for a License to Practice Medicine through Endorsement with BOMEX. 4. Question number 6 of Applicant’s licensure application asks the following question:

Have any actions, restrictions, limitations (including probation or academic probation) been taken while you were participating in any type of training program or by any health care provider?

Applicant answered “No” to question number 6.

4. At the end of the license application Applicant verified under oath that

…he has read the complete application, knows the full content thereof, and declares that all of the information contained herein and evidence of other credentials submitted herein are true and correct…

Applicant further acknowledged that

…falsification or misrepresentation of any item or response on this application is adequate to deny the same…

5. On or about May 26, 1999, BOMEX advised Applicant in writing that his licensure application was denied due to his failure to correctly answer question number 6. In verifying Applicant’s credentials, BOMEX received information from Jersey Shore Medical Center that he had been terminated on November 6, 1989, from his Internal Medicine residency program for gross dereliction of duty. 6. Applicant timely requested an administrative hearing on BOMEX’s denial of his licensure application. 7. Applicant has the burden of proving that the denial of his licensure application by BOMEX should be overturned. Applicant did not present any evidence at the hearing in support of the approval of his licensure application. On the contrary, BOMEX presented credible evidence in support of its denial. 8. On or about August 10, 1989, Applicant was confronted by his supervisor at Jersey Shore Medical Center concerning the very poor evaluation of his July ICU performance. The supervising physician identified Applicant’s problems as poor motivation, unreliability, lack of medical knowledge, poor communication with attendings and failure to inform his resident of problems on the floor. Applicant was informed that he would be carefully observed by faculty and residents. 9. On August 11, 1989, Applicant was placed on remediation at Jersey Shore Medical Center. The written Problem-Remediation Summary prepared by the facility identified the following problems with Applicant:

a) poor histories, physical exams and syntheses of patient problems b) very poor presentation at morning report c) rather condescending cocky attitude toward faculty and chief residents with no remorse d) very poor motivation e) ignores superiors f) the evaluation of July 1989 by his resident is bad in all areas

The period of remediation was from August 11, 1989 to September 11, 1989. During that period of time Applicant was closely observed by Chief Residents, Dr. Crocco, M.D., who served as the Program Director of the Department of Medicine, and the rest of the faculty to assist Applicant to overcome his difficulties. 10. On or about September 27, 1989, Dr. Crocco prepared a written report on Applicant’s performance. Dr. Crocco reported that Applicant had failed to properly work up a patient admitted to the facility, and that he had given “an atrocious presentation” of that patient at the morning report. A meeting was later conducted with Drs. Crocco, Guerra, Angelici, Sher and Applicant regarding his performance and lack of remorse. 11. On October 3, 1989, Dr. Crocco prepared a written report memorializing a counseling session with Applicant. Dr. Crocco informed Applicant that he was being placed on probation for one month. The reasons for the imposition of the probation were:

a) poor histories, physical exams and syntheses of patient problems b) very poor presentation at morning report c) rather condescending, cocky attitude toward faculty.

The probation decision was reached by the unanimous agreement of Drs. Casey, Crocco, Felibrico, Frank and Sher at the faculty meeting to evaluate residents. 12. On October 13, 1989, a meeting was held with Drs. Crocco, Guerra, Cunningham and Applicant on his poor performance involving four patients. Applicant’s response to the identification of his poor performance was to be argumentative to those faculty members. 13. On or about October 16, 1989, Dr. Sher wrote a memo to Dr. Crocco opining that there had been no improvement in Applicant’s progress. 14. On October 16, 1989, a meeting took place with Drs. Crocco, Guerra, Cunningham, Aldo, Fonticiella and Applicant regarding the latter’s failure to do his progress reports. Applicant had earlier promised to come to the hospital on Sunday, October 15, 1989, to complete the progress reports. Applicant did not do the reports on that Sunday. Applicant’s reported reaction at the meeting was one of arrogance and argumentiveness. 15. On October 17, 1989, an evaluation of Applicant’s progress was performed by faculty members. It was concluded that Applicant had not improved significantly and required continued evaluation and monitoring. 16. On October 18, 1989, a meeting took place with Drs. Crocco, Cunningham, Guerra, Fronticielia and Applicant involving two patients. After reviewing the two incidents the faculty members concluded that Applicant’s treatment of those patients showed “a lack of responsibility, insubordination and poor patient care” with no remorse from Applicant. 17. On October 24, 1989, Departmental Supervisor Karen Kiley was informed by the hospital telephone operator that Applicant had called to leave a message for Dr. Crocco informing him that Applicant was sick and needed to take some time off. Upon receiving the message, Dr. Crocco unsuccessfully attempted to contact Applicant by telephone. Dr. Crocco dispatched the Chief Residents, Drs. Cunningham and Guerra to Applicant’s campus apartment to find him. No one answered at Applicant’s apartment door and his automobile was not in the parking lot. Applicant was then considered absent without leave. 18. On October 25, 1999, Dr. Crocco wrote a letter to Applicant to inform him that he was considered absent without leave. Dr. Crocco also stated that if Applicant did not advise him of his whereabouts, condition and future intentions, then immediate appropriate action would be taken in the interest of good patient care. 19. On October 26, 1989, Dr. Guerra met Applicant as the latter was driving away from the hospital. Applicant advised Dr. Guerra that he intended to first go to Houston, Texas and then return to India to become a general practitioner. Applicant agreed to attend a meeting that afternoon but he never did appear. 20. By letter dated November 6, 1989, Dr. Crocco wrote to Applicant advising him that he was terminated from his position as PGY I (Categorical) in Internal Medicine at Jersey Shore Medical Center effective that date. Applicant had been absent without leave for almost two weeks and failed to meet with Dr. Crocco despite living in his apartment at the hospital. 21. Applicant started a year of residency training in Internal Medicine at the Catholic Medical Center in Jamacia, New York, on July 1, 1991 and completed it on June 30, 1992. Applicant did not get an offer for a second year position because he had too many unexcused absences from duty. 22. Applicant is found to have been deceptive by his failure to answer “Yes” to question number 6 of his application and to explain his probation periods at Jersey Shore Medical Center. 23. Applicant is found to have been deceptive by his failure to answer “Yes” to question number 6 of his application and to explain his termination from Jersey Shore Medical Center. 24. Applicant is found to have been deceitful in his verification that the answers contained in his application were true and correct. 25. The BOMEX licensing investigative process and staff performed admirably in discovering Applicant’s deceit in his licensure application and preventing him from profiting from that deceit by obtaining an Arizona medical license.

CONCLUSIONS OF LAW

1. The primary duty of BOMEX is “to protect the public from unlawful, incompetent, unqualified, impaired or unprofessional practitioners of allopathic medicine through licensure, regulation and rehabilitation”. A.R.S. §32-1403(A). 2. Applicant, by his default in appearance at the hearing, failed to sustain the required burden of showing good cause for the issuance of a license to practice medicine in Arizona. 3. Applicant’s failure to truthfully answer question number 6 of his licensure application and to explain his termination from Jersey Shore Medical Center to BOMEX in the application constitutes a violation of A.R.S. §32-1401.25(jj). 4. BOMEX has the authority to deny Applicant’s licensure application due to his untruthful answer to question number 6 and his perjury. 5. Applicant’s appeal in this matter should be dismissed. 6. BOMEX’s denial of Applicant’s licensure application should be affirmed and upheld. … … … … … … … … … …

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Applicant’s appeal in this matter be dismissed and that the prior denial of Applicant’s licensure application by BOMEX be affirmed and upheld. It is further recommended that BOMEX report this matter to the medical licensing authority for the State of New York.

Done this day, December 3, 1999.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Board of Medical Examiners Claudia Foutz, Executive Director 1651 East Morten, #210 Phoenix, AZ 85020 ATTN: Jack Confer

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826