ALJDEC

99F-11508-MDX-res · Board of Medical Examiners · 1999-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 22 and 23, 1999. APPEARANCES: The Arizona Board of Medical Examiners was represented by Assistant Attorney General Gordon Bueler. Dr. Allen L. Brown, M.D., was represented by his attorney, David G. Derickson, Esq. 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. The Board of Medical Examiners (“BOMEX”) is the duly constituted authority for the regulation and control of the practice of medicine in the State of Arizona. 2. The Respondent, Dr. Allen L. Browne, M.D., is the holder of License No. 14411 for the practice of medicine. Dr. Browne has been licensed for approximately 15 years. He is not, nor ever has been, licensed to practice medicine in any other state. 3. Dr. Browne is an Obstetrician/Gynecologist. He began his Mesa sole practice in 1984. 4. Dr. Browne is 46 years old. 5. Dr. Browne has privileges at Mesa Lutheran Hospital, Valley Lutheran Hospital and Desert Samaritan Hospital. He has never been sanctioned by those hospitals. 6. Dr. Browne has been married to his medical practice. During the period from March 1986 to August 1987, Dr. Browne was on call with no coverage from any other physician. 7. During the summer of 1993, Dr. Browne developed a romantic relationship with one of his employees, named T.G. 8. In December of 1994, T.G. moved into Dr. Browne’s home with her two minor children, C.G. age 12 and C.P. age 6. 9. By December of 1996, the relationship between Dr. Browne and T.G. had soured. She had moved out of Dr. Browne’s house with her minor children. 10. On Christmas Eve of 1996, Dr. Browne took T.G.’s minor daughter C.G. to Midnight Mass. While Dr. Browne took C.G. to her home after Mass he told C.G. that he no longer loved her mother. He continued by telling C.G. that he loved her beyond the stepfather-type relationship that they had to that point in time. Dr. Browne told C.G. that he was romantically interested in her. C.G. was upset with Dr. Browne’s declarations. 11. Upon her return home from Mass, C.G. informed her mother of the contents of Dr. Browne’s declarations of affection for C.G. and non- affection for T.G. 12. After the conversation with C.G., T.G. went over to Dr. Browne’s home on Christmas Day to confront him about his expression of romantic feelings for her minor daughter. 13. During the above-described period of time T.G. continued to work for Dr. Browne. 14. T.G. and Dr. Browne reconciled their differences and the romantic relationship between the two renewed. Late in May of 1997 T.G. and her two minor children moved back into Dr. Browne’s home. 15. The reconciliation of T.G. and Dr. Browne did not last long. T.G. broke off the romantic relationship and moved into a separate bedroom. She and her daughters continued to live at Dr. Browne’s residence for financial reasons. 16. Dr. Browne continued to be obsessed with C.G. Dr. Browne wanted to marry C.G. He researched the law and found out that he could marry her once she turned 18 years old or if he obtained her mother’s permission. C.G. never indicated a desire either for a romantic relationship with Dr. Browne or to marry him. On the contrary, there is credible evidence that Dr. Browne’s expression of romantic love for her distressed C.G. 17. In October 1997 Dr. Browne purchased a security camera and video recorder. He placed the camera behind a vent cover located above shelving in the bathroom used by T.G. and her children. The camera was positioned to capture the images of persons using the bathroom. Dr. Browne put the video recorder and monitor in the attic. The video recorder taped images received from the camera. 18. Dr. Browne installed the recording system in the bathroom used by T.G. and her children for the purposes of recording the minor C.G. in the bathroom. 19. Dr. Browne installed a timer on the recording system with the intent to automatically activate the recording system when C.G. would normally use the bathroom, such as when she would be getting ready for school. 20. In November 1997, T.G. and her children traveled to New Mexico to spend the Thanksgiving Day holiday with family. 21. On November 30, 1997, T.G. and her children returned from New Mexico to Dr. Brown’s home. 22. After her return from New Mexico, T.G. was in the bathroom used by herself and her children. While getting a towel from the bathroom shelf, her attention was drawn to an object visible behind the vent cover. She immediately went to Dr. Browne and asked him about the object. Dr. Browne responded that the object was a smoke detector. Unconvinced, T.G. demanded an explanation of the object. Dr. Browne eventually admitted that it was a video camera. Dr. Browne also stated that there was a recording device and monitor in the attic. 23. When Dr. Browne admitted that there was a surveillance device in the bathroom, she demanded that Dr. Browne disconnect the recording system. Dr. Browne removed the security camera from the vent and the recorder and monitor from the attic. 24. T.G. then viewed a video tape which showed C.G. taking a shower. 25. T.G. called the Mesa Police Department to report the incident. 26. The Mesa Police Department arrived at Dr. Browne’s residence and recovered 11 videocassettes, which upon later inspection showed T.G. and her two minor children in various stages of dress and undress, and uses of the bathroom facilities. The police also discovered a small quantity of marijuana used by Dr. Browne. 27. A review of the 11 videocassettes by the Mesa Police Department revealed that C.G. was shown nude or partially disrobed on 19 occasions. 28. Dr. Browne admits that he installed the video recording system for the purpose of capturing C.G., the minor daughter of T.G. and the object of his affection, for his personal voyeuristic and masturbatory satisfaction. 29. Dr. Browne did achieve masturbatory gratification from viewing images of C.G. captured on his recording device. 30. T.G. on eight occasions and her other minor child, C.P., on four occasions were also captured by Dr. Browne’s recording system. Dr. Browne’s insistence that he was not interested in the video images of those individuals does not mitigate his actions against those persons nor the impact Dr. Browne’s actions caused upon them. 31. On December 1, 1997, Dr. Browne was arrested by the Mesa Police Department. 32. On December 19, 1997, BOMEX ordered the investigation (#11508) of Dr. Browne to a formal hearing. 33. On December 19, 1997, BOMEX and Dr. Browne entered into an agreement concerning Dr. Browne’s practice pending further order of BOMEX. 34. On or about December 22, 1997, BOMEX issued an Interim Stipulation and Order requiring that Dr. Browne comply with the following conditions pending the final resolution of this case: he was to have a female chaperone present during all hospital and office examinations; the chaperone was to document her presence by signing the hospital or office record; Dr. Browne was not to see, treat or care for any patient under the age of eighteen year, except existing patients who have reviewed the Interim Stipulation and Order and consent in writing to continued treatment; and that Dr. Browne submit to random biological fluid testing as required by BOMEX. 35. In March 1998 Dr. Browne admitted that he still loved C.G. and that he still continued to masturbate while fantasizing about her. 36. Dr. Browne has a panty fetish. He would take C.G.’s panties and use them for his sexual arousal. 37. On January 14, 1999, Dr. Browne appeared before the Superior Court of Maricopa County in Case No. CR 97-95450. Dr. Browne, who was represented by legal counsel, waived his right to a trial with or without a jury, his right to confront and cross examine witnesses, his right to testify or remain silent and his right to present evidence and call his own witnesses. Dr. Browne entered a plea of Guilty to Count I of the indictment. 38. The Superior Court entered a judgment that Dr. Browne was guilty of the crime of Sexual Exploitation of a Minor, a class 2 Felony, nondangerous and nonrepetitive offense in violation of A.R.S. §§ 13- 3551, 13-3553, 13-3821, 13-701, 13-702 and 13-801 committed between September 1, 1997, and November 30, 1997. 39. The Superior Court ordered, among other punishment, that Dr. Browne be placed on lifetime probation commencing on January 14, 1999 under the supervision of the Court’s Adult Probation Department, that he be incarcerated in the Maricopa County Jail for a period of ten months commencing February 12, 1999, that Dr. Browne be considered for placement in a furlough program, and that he is to comply with all restrictions on practice by BOMEX. 40. One of the conditions of Dr. Browne’s lifetime probation is the requirement that he register as a sexual offender with the local police authorities. 41. Dr. Browne continues to minimize his abnormal behavior by claiming to be in love with C.G., a minor child. 42. Notwithstanding the evidence from colleagues, health care professionals and patients that Dr. Browne is an excellent physician, the totality of the evidence of record supports a finding that Dr. Browne’s continued practice of medicine is found to be a threat to the public health, safety and welfare. Dr. Browne needs treatment for his obsession/compulsive behavior and his sexual deviancy. 43. Dr. Browne appears to be a good prospect for rehabilitation. Dr. Browne’s rehabilitation will require his participation in sexual offender treatment programs and other therapies. Although no firm date can be set for the period of rehabilitation, if at all successful, it is determined that rehabilitation will take some time.

CONCLUSIONS OF LAW

1. BOMEX has the power to discipline and rehabilitate physicians. A.R.S. § 32-1403 (A) (5). There is no statutory mandate that BOMEX must rehabilitate a physician prior to contemplating disciplinary penalties. 2. The evidence of record is insufficient to establish that Dr. Browne has violated the provisions of A.R.S. § 32-1401(25)(q) (Any conduct or practice which is harmful or dangerous to the health of a patient or the public). While Dr. Browne’s conduct has harmed T.G., C.G. and C.P., none of them were patients of Dr. Browne’s during the period of his criminal activities. 3. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct pursuant to A.R.S. § 32-1401(25)(d). 4. Dr. Browne is guilty of unprofessional conduct which warrants the revocation of his license to practice medicine for the protection of the public health and safety. 5. BOMEX’s revocation of Dr. Browne’s license should not necessarily be construed as a lifelong ban from his practice of medicine in the State of Arizona. There is statutory authority providing that a convicted felon may apply for certification or licensure as a health care provider after a period of five years from the end of a criminal sentence has elapsed. A.R.S. §§ 32-1632, 32-1634, 32-1635, 32-1637, 32-1639, 32-1640, 32-1646 and 32-1648. A rehabilitated Dr. Browne should also be afforded the opportunity to apply to BOMEX for licensure as a medical doctor five years from the completion of his incarceration. 6. BOMEX, in addition to any other disciplinary action which may be taken, may impose an administrative penalty in the amount of not less than three hundred dollars nor more than ten thousand dollars for each statutory violation committed by a licensee. A.R.S. § 32-1451(I). It is determined that a significant assessment of an administrative penalty by BOMEX against Dr. Browne is appropriate.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Dr. Browne’s License No. 14411 for the practice of medicine in the State of Arizona be revoked. It is further recommended that BOMEX assess an administrative penalty in the amount of $1,500.00 against Dr. Browne. Dr. Browne shall pay the administrative penalty to the Board of Medical Examiners on or before 60 days following the effective date of the Order entered in this matter. No future license to practice medicine shall be issued to Dr. Browne by the Board of Medical Examiners unless the administrative penalty has been timely paid unless such deadline has been extended by BOMEX. It is further recommended that Dr. Browne be eligible to apply to the Arizona Board of Medical Examiners for licensure as a medical doctor after five years has passed from the completion of his incarceration in the Maricopa County Jail. It is further recommended that Dr. Browne advise the Superior Court’s Adult Probation Department of the entered Order in this case. Done this day, April 12, 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