ALJDEC

99F-12256-MDX · Board of Medical Examiners · 2000-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 1999, and February 17, 2000. APPEARANCES: The Arizona Board of Medical Examiners was represented by Assistant Attorney General Gordon S. Bueler. The Respondent, Dr. Mohamed S. El-Toukhy, M.D., appeared on December 14, 1999, but did not appear on February 17, 2000. The record was kept open until February 28, 2000, to allow for the filing of the complete official hearing transcript with the Office of Administrative Hearings. 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 of the State of Arizona (“BOMEX”) is the duly constituted authority for the regulation and control of the practice of medicine in the State of Arizona. 2. The Respondent, Mohamed S. El-Toukhy, M.D. also known as Dr. M. Sami El- Toukhy, M.D., is the holder of License No. 15892 for the practice of medicine in the State of Arizona. 3. Currently Dr. El-Toukhy maintains a medical practice in California and is an Assistant Professor in Clinical Family Medicine at the University of Southern California in Los Angeles. 4. On January 19, 1996, Dr. El-Toukhy performed surgery on patient P.N. In his records, Dr. El-Toukhy claims to have removed fourteen (14) skin lesions of various sizes. 5. Dr. El-Toukhy claimed that some of the lesions removed from patient P.N. were malignant, and he billed for the removal of malignant tumors. Dr. El- Toukhy used a “shave excision” procedure to remove the lesions, and he did not close the excisions with sutures. Because he used the “shave excision” procedure to remove the skin lesions, Dr. El-Toukhy could not evaluate the adequacy of removal of any alleged malignancy. 6. The pathology report on the removed lesions prepared by Dr. El-Toukhy is wholly lacking as to the method of pathologic review, description of specimens examined or bases for clinical finding. The pathology report is found to be inadequate. 7. The surgical report prepared by Dr. El-Toukhy on the removed lesions from patient P.N. is substandard. The surgical report for patient P.N. is identical to a separate surgical report prepared by Dr. El-Toukhy for patient P.P. The reported histories, procedures use, preoperative diagnosis and follow-up treatment are word for word in each of the reports for those separate patients. 8. Patient P.N.’s insurance company, Aetna, had a staff doctor investigate Dr. El-Toukhy’s billing for the above-described medical treatment. The doctor for Aetna, Lee Stapp, M.D., reviewed Dr. El-Toukhy’s documentation and questioned the validity of the documentation. In his review, Dr. Stapp rejected the bills submitted by Dr. El-Toukhy. 9. Dr. El-Toukhy also recorded the following nerve block procedures administered to patient P.N., which were all performed on December 13, 1995:

1. greater occipital nerve, bilateral; 2. spinal accessory nerve, bilateral; 3. suprascapular nerve, bilateral; 4. intercostal nerve, multiple; 5. paravertebral nerves, multiple; 6. facet joint nerves, multiple; and 7. sciatic nerve, bilateral.

10. No diagnosis or circumstance would lead to the listed multiple nerve blocks on one patient at one setting. Administering the recorded nerve blocks on one patient at one setting falls below the medically accepted standard of care. Performance of the nerve blocks listed by Dr. El-Toukhy would be outside the standard of care in any setting because the local anesthetic load and steriod load would have been toxic. 11. Dr. El-Toukhy did not use fluoroscopy when he treated patient P.N., nor does he use fluoroscopy in his medical practice. The performance of the nerve blocks listed by Dr. El-Toukhy without the use of fluoroscopy is outside the standard of care. 12. There is credible evidence that Dr. El-Toukhy administered triggerpoint injections rather than nerve blocks to patient P.N. Nerve block procedures are much more expense than triggerpoint injection procedures.

CONCLUSIONS OF LAW

1. BOMEX has jurisdiction over the subject matter hereof and the Respondent. 2. The conduct and circumstances described above constitutes unprofessional conduct pursuant to A.R.S. §32-1401(25)(c) (failing or refusing to maintain adequate records on a patient). 3. The conduct and circumstances described above constitutes unprofessional conduct pursuant to A.R.S. §32-1401(25)(n) (refusing to divulge to the Board the means, method, procedure, modality of treatment or medicine used in the treatment of a disease, injury, ailment or infirmity). 4. The conduct and circumstances described above constitutes unprofessional conduct pursuant to A.R.S. §32-1401(25)(q) (any conduct or practice which is or might be harmful or dangerous to the health of the patient or the public). 5. The conduct and circumstances described above constitutes unprofessional conduct pursuant to A.R.S. §32-1401(25)(u) (charging a fee for services not rendered or dividing a professional fee for patient referrals among health care providers). 6. The conduct and circumstances described above constitutes unprofessional conduct pursuant to A.R.S. §32-1401(25)(v) (obtaining a fee by fraud, deceit or misrepresentation). 7. The conduct and circumstances described above constitutes 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 representatives if legally requested by the Board). 8. Pursuant to the provisions of A.R.S. §32-1451(I), BOMEX, in addition to any other disciplinary action, 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 BOMEX’s imposition of a civil penalty against Respondent in this matter. 9. BOMEX has the authority, pursuant to A.R.S. §32-1451(L), to assess the costs of formal hearing against a licensee who has been found to have violated the provisions of A.R.S. §32-1401 et seq. BOMEX should assess the costs of this formal hearing against Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Dr. El-Toukhy be issued a decree of censure in this matter. In addition to the above-provided decree of censure, it is further recommended that Dr. El-Toukhy be assessed a civil penalty in the amount of $6,000.00[1]. That civil penalty shall be paid by Dr. El-Toukhy to BOMEX within 90 days from the effective date of the Order entered in this matter, unless the deadline for such civil penalty payment has been extended by BOMEX. In the event that Dr. El-Toukhy does not timely pay the civil penalty, then his License No. 15892 shall be suspended until the civil penalty has been paid in full. It is further recommended, in addition to the above-provided decree of censure and civil penalty, that Dr. El-Toukhy be assessed the costs of this formal hearing. Those costs shall be payable to BOMEX within 90 days of the effective date of the entered Order in this matter, unless that deadline is extended by BOMEX. In the event that Dr. El-Toukhy does not timely pay the costs of formal hearing to BOMEX, then his License No. 15892 shall be suspended until those costs have been paid in full. Done this day, March 20, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Board of Medical Examiners Claudia Foutz, Executive Director Attn.: Gail Milner, R.N. 1651 East Morten, Suite 210 Phoenix, AZ 85020

By __________________________

----------------------- [1] The total sum of $1,000.00 times the six statutory violations identified in Conclusions of Law numbers 2 through 7.

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