ALJDEC

99F-11306-MDX · Board of Medical Examiners · 1999-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 1999. APPEARANCES: The Arizona Board of Medical Examiners (“BOMEX”) was represented by Assistant Attorney General Gordon S. Bueler. Respondent did not appear. 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. BOMEX is the duly constituted authority for the regulation and control of the practice of medicine in the State of Arizona. 2. Respondent is the holder of License No. 4742 for the practice of medicine in the State of Arizona. 3. Respondent’s Arizona medical license is currently suspended by operation of law due to his failure to renew the license in May, 1999. 4. Respondent was licensed to practice medicine in California. That license was revoked by the California medical governing authority sometime after 1995. 5. BOMEX conducted an investigation (Investigation No. 2685) in the matter of Yuma Regional Medical Center vs. Philip Siegel, M.D. 6. As a result of Investigation No. 2685, Respondent and BOMEX entered into a Stipulation and Order effective as of May 1, 1995. The Order provided that Respondent shall not engage in the practice of medicine in Arizona until he has first informed BOMEX, in writing, of his intention to do so. 7. Respondent acknowledged in the Stipulation that any violation of the Order constitutes unprofessional conduct within A.R.S. §32-1401(24)(r) and may result in disciplinary action pursuant to A.R.S. §32-1451. 8. On September 18, 1996, BOMEX investigative staff sent a letter to Respondent to the California business address listed by him on his Arizona medical license renewal forms. The letter, sent by certified mail, invited Respondent to BOMEX’s offices for an investigational interview as part of an ongoing investigation into Respondent’s medical practice (Investigation No. 2685). The letter was returned “unclaimed”. Respondent did not appear for the interview scheduled for September 25, 1996. 9. A subpoena compelling Respondent’s attendance at an investigational interview was mailed via certified mail to Respondent’s business address on November 12, 1996. The subpoena was later returned “unclaimed”. Respondent did not appear for the interview scheduled for November 27, 1996. 10. On March 14, 1997, BOMEX ordered Respondent to appear for an investigative interview within 30 days of that date on a date to be determined by BOMEX staff. BOMEX had received information that Respondent may have violated the Stipulation and Order by practicing medicine in Yuma, Arizona without providing written notice to BOMEX. 11. On March 27, 1997, BOMEX’s executive director transmitted a copy of BOMEX’s written order to appear for an Investigative Interview to Respondent. The transmittal letter and Order were sent to Respondent by certified mail/return receipt request to the following address on file with BOMEX: P.O. Box 15497, Beverly Hills, California 90209. 12. BOMEX’s March 27, 1997, correspondence to Respondent was returned to BOMEX by the U.S. Postal Service as undelivered after two notices. 13. On or about April 7, 1997, Tim L. Keene, a medical investigator for BOMEX, wrote a letter to Respondent advising him to appear for an Investigational Interview at BOMEX’s offices in Phoenix on April 18, 1997, at 3:30 p.m. Keene sent his letter with an enclosed subpoena to Respondent by certified mail/return receipt requested to the following address: P.O. Box 15497, Beverly Hills, California 90209. 14. Respondent did not appear for the Investigative Interview on April 18, 1997, at 3:30 p.m. as ordered by BOMEX. 15. On July 26, 1997, BOMEX met to discuss the matter of BOMEX Inquiry (07/17/97) - Philip Siegel, M.D., Investigation No. 11036[1] , which concerned Respondent’s failure to respond to the Board’s notification for an Investigational Interview into his medical practice in Investigation No. 2685. BOMEX directed its legal counsel to go to court to enforce the subpoena that Respondent appear for an Investigational Interview. BOMEX further directed that the subpoena be served by a process server before enforcing the subpoena in court. 16. On or about August 11, 1997, BOMEX’s executive director wrote a letter to Respondent advising that he was scheduled to meet with BOMEX’s medical consultant, Michael E. Brennan, M.D., and medical investigator, Tim L. Keene, on September 5, 1997, at 2:00 p.m. at its offices in Phoenix. A subpoena for Respondent’s attendance at the meeting was issued by BOMEX. The process server hired by BOMEX attempted service of the letter and subpoena at Respondent’s address of record on August 18, 1997. On August 20, 1997, the process server returned the documents to BOMEX due to the inability to serve the documents at the address of record. The process server discovered that Respondent had not been at that business address for over one year. 17. During its July 1999 meeting, BOMEX voted to refer Investigation No. 11036 to Formal Interview. On August 10, 1999. Jack Confer, Board Operations Administrator, wrote to Respondent at his official address of record to advise him of the Formal Interview. 18. By letter dated August 24, 1999, BOMEX advised Respondent, addressed to his official address of record, that his Formal Interview was scheduled for September 21, 1999, at 3:40 p.m. That correspondence was returned to BOMEX by the U.S. Postal Service as unclaimed mail. 19. By letter dated August 25, 1999, Board investigator supervisor Philip R. Gang also informed Respondent of the Formal Interview date and time. He also enclosed a subpoena for Respondent’s attendance. On or about September 13, 1999, the U.S. Postal Service returned that certified mail to BOMEX as unclaimed mail. 20. Respondent communicated to BOMEX in writing on or about September 17, 1999. He advised the board that he was presently teaching at both Barry University and Florida International University in the areas of pathophysiology and neuro-anesthesia for undergraduates, graduate nurses and nurse-anesthetists. Respondent advised that his current addresses are: 3745 N.E. 171 St., Suite 75 North, Miami Beach, FL 33160 and P.O. Box 630485, Miami, FL 33163-0485. Respondent further advised that due to teaching commitments and financial constraints he would be unable to attend the scheduled Board meeting. He stated that he would like to present his case to BOMEX at another date. 21. On September 21, 1999, BOMEX voted this matter to formal hearing due to Respondent’s failure to appear before the Board despite the numerous attempts to have him do so. BOMEX was made aware that the Respondent had been located in Florida. 22. On or about October 8, 1999, BOMEX issued a Complaint and Notice of Hearing in this matter. The administrative hearing was scheduled for December 2, 1999, at 9:00 a.m. before the Office of Administrative Hearings. The Complaint and Notice was sent to Respondent at the following address: P.O. Box 15497, Beverly Hills, CA 90209. 23. Respondent is found to have had actual notice of the date, time and location of the administrative hearing in this matter. There is no evidence that Respondent’s correspondence to BOMEX on September 17, 1999, met the requirements for properly changing his address of record with BOMEX, although BOMEX is deemed to have been put on notice where he was then physically located. However, counsel for BOMEX avowed at the hearing that he had previously talked to Respondent by telephone, that Respondent knew of the date, time and location of the administrative hearing on December 2, 1999, and that Respondent indicated to counsel that he intended to appear at the hearing. Counsel has had no further contact with Respondent.

CONCLUSIONS OF LAW

1. BOMEX possesses jurisdiction over the subject matter hereof and over Philip Siegel, M.D. 2. The conduct and circumstances described above constitute unprofessional conduct pursuant to A.R.S. §32-1401(25)(a) (violation of any federal or state laws or rules and regulations applicable to the practice of medicine, to-wit: A.R.S. §32-1435(B)). 3. The conduct and circumstances described above constitute unprofessional conduct pursuant to A.R.S. §32-1401(25) (violating a formal order, probation or stipulation issued or entered into by the Board or its executive director under the provisions of this chapter). 4. The conduct and circumstances described above constitute unprofessional conduct pursuant to A.R.S. §32-1401(25)(dd) (failing to furnish information in a timely manner to the Board or its investigators or representative if legally requested by the Board). 5. A.R.S. §1451(L) provides that “(a)ny doctor of medicine who after formal hearing as provided in this section is found by the board to be guilty of unprofessional conduct…is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including 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”. Respondent has previously entered in a Stipulation and Order with BOMEX, he has failed to cooperate with BOMEX in its investigation as to whether or not Respondent has violated the prior Stipulation and Order by practicing medicine in Arizona without notifying BOMEX, he has failed to timely advise BOMEX of his current change of address resulting in unnecessary expenses incurred by BOMEX in this matter, and he failed to attend the administrative hearing. In view of the current status of his Arizona medical license, severe disciplinary penalties are warranted in this matter. 6. A.R.S. §32-1451(L) provides that BOMEX may impose a civil penalty in the amount of not less than $300.00 nor more than $10,000.00 for each violation of A.R.S. §32-1401 et seq. The evidence of record supports a significant exercise of that power by BOMEX in this matter. 7. A.R.S. §32-1451(L) provides that BOMEX may impose the costs of formal hearing to a doctor of medicine for violations of A.R.S. §32-14-1 et seq. The evidence of record supports BOMEX’s imposition of the costs of the formal hearing in this matter on Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Arizona Board of Medical Examiners revoke Respondent’s License Number 4742 for the practice of medicine in Arizona. It is further recommended, in addition to the foregoing disciplinary penalty, that the Arizona Board of Medical Examiners impose a civil penalty to Respondent in the amount equal to the total of three times the expenses incurred by BOMEX, not to exceed the sum of $10,000.00, in conducting Investigation No. 2685 from March 14, 1997, to September 21, 1999[2], and Investigation No. 11036 to September 21, 1999[3]. It is further recommended, in addition to the foregoing disciplinary penalties, that the Arizona Board of Medical Examiners assess Respondent the costs of the formal hearing in this matter. It is further recommended that no future license or renewal of any medical license be issued by the Arizona Board of Medical Examiners to Respondent unless the above-described civil penalty and assessed formal hearing costs have been paid by Respondent. It is further recommended that if Respondent appears before the Arizona Board of Medical Examiners for an Investigational Interview and Formal Interview for Investigation No. 2685 within 60 days of the effective date of the order entered in this matter, and he pays the above-described civil penalty and assessed formal hearing costs within 90 days of the effective date of the Order entered in this matter, then the above provided license revocation shall not take place but instead that Respondent shall be censured in this matter (Investigation No. 11036). Done this day, December 22, 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 ___________________________

----------------------- [1] All references to Investigation No. 11306 in the records of the Arizona Board of Medical Examiners and the Office of Administrative Hearings should be corrected to read Investigation No. 11036.

[2] The date of the Investigational Interview and Formal Interview at which time the board voted Investigation No. 11036 to formal hearing. [3] Ibid.

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