ALJDEC

99F-12625-MDX · Board of Medical Examiners · 2000-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARINGS: January 10, 11, and 12, 2000; Phoenix, Arizona

APPEARANCES:

Mark Kenneth Patton, M. D.: Charles E. Buri, Esq.

State of Arizona: Montgomery Lee, Esq.; Marc H. Harris, Esq.; and,

Nancy J. Beck, Esq., Assistants Attorney General

ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

These consolidated matters involve: 1. Consideration of a Motion for Review and Amendment to Motion for Review filed by the State of Arizona in Investigative Case No. 96F-9428- MDX. 2. A disciplinary proceeding in Investigative Case No. 99F-12625-MDX commenced pursuant to the statutes and rules of the Arizona Board of Medical Examiners (“Board”). Consolidated hearings were held on January 10, 11, and 12, 2000. Based upon the evidence presented at the hearings, Administrative Law Judge (“ALJ”) George A. Schade, Jr. submits these Recommended Decisions and Orders to the Board. CONSOLIDATED FINDINGS OF FACT DR. MARK KENNETH PATTON 1. Dr. Mark Kenneth Patton (“Dr. Patton”) holds License No. 23562 for the practice of allopathic medicine in the State of Arizona. He was licensed to practice medicine in Arizona in late 1995. 2. Dr. Patton is a pediatrician who practices at Maryvale Pediatrics with six other pediatricians. He began practicing pediatrics at Maryvale Pediatrics in 1996. 3. Dr. Patton has hospital privileges at Maryvale Hospital Medical Center, Phoenix Children’s Hospital, St. Joseph’s Hospital and Medical Center, and Good Samaritan Regional Medical Center, and he is credentialed by Mercy Care Plan and Intergroup of Arizona. PROCEDURAL HISTORY AT THE OFFICE OF ADMINISTRATIVE HEARINGS 4. The Board referred both investigative cases to the Office of Administrative Hearings to conduct hearings. The Office of Administrative Hearings assigned ALJ Schade to hold the hearings. 5. On October 19, 1999, ALJ Schade held a prehearing conference with all counsel to discuss procedural and substantive issues associated with both cases. 6. On November 12, 1999, ALJ Schade consolidated these cases. 7. Prior to the hearings, the parties filed motions regarding procedural, discovery and substantive issues. Following is a summary of the ALJ’s procedural orders and the disposition of the various motions: a. Procedural Order No. 1 (October 20, 1999) State’s Motion for Expedited Hearing Denied State’s Motion for Expedited Review Denied State’s Motion to Consolidate the Formal Hearings Deferred Dr. Patton’s Motion to Continue Hearing Granted b. Procedural Order No. 2 (November 12, 1999) State’s Motion to Consolidate the Formal Hearings Granted Dr. Patton’s Motion for Separate ALJs Denied c. Procedural Order No. 3 (November 23, 1999) State’s Motions to Quash Subpoenas Duces Tecum Denied d. Procedural Order No. 4 (December 1, 1999) State’s Motions for Clarification of Procedural Order No. 2 Granted State’s Motion Regarding Official Transcript Ruling Not Required e. Procedural Order No. 5 (December 10, 1999) Rulings on the Board’s records subject to Dr. Patton’s subpoenas duces tecum following the ALJ’s in camera inspection of the records. f. Procedural Order No. 6 (December 27, 1999) Dr. Patton’s Motion to Disqualify the Attorney General Denied Dr. Patton’s Motion to Dismiss Notice of Hearing for Review and Consideration of New Evidence and Recommended Order on State’s Motion for Review Denied in Part; Taken Under Advisement

Dr. Patton’s Motion to Require the State of Arizona To Produce Carlos Roby, Ph.D. and His Files, Records and Data Denied Dr. Patton’s Motion To Permit Rebuttal Testimony Granted State’s Motion for Clarification of Procedural Order No. 2 Denied Dr. Patton’s Motion to Vacate Procedural Order No. 4 Denied State’s Motion In Limine Re Dr. Carlos Roby Denied State’s Motion Regarding Official Transcript Granted. 8. Full day evidentiary hearings were held on January 10, 11, and 12, 2000. The State presented the testimony of Mr. Ronald A. Palmer, an investigator of the Board, and of Dr. Patton. Dr. Patton presented (in order of appearance) his testimony and the testimony of Mrs. J. M.[1] the mother of one of Dr. Patton’s patients; Mr. Manuel Saldate, an investigator of the Board; Mr. Thomas F. Adams, the Board’s Assistant Director for Regulation; Ms. Robin K. King, an investigator of the Board; and, Steven R. Gray, Ed.D., Dr. Patton’s treating psychologist. Mrs. J. M. was the only witness who testified by telephone. The ALJ admitted fifty-seven of the State’s exhibits and fourteen of Dr. Patton’s exhibits. The hearing was transcribed by a court reporter, and the transcripts were made available to both parties. The record remained open until March 7, 2000, when the State and Dr. Patton submitted proposed findings of fact and conclusions of law. Although consolidated for hearing, separate findings of fact, conclusions of law and a recommended order are submitted for each case. INVESTIGATIVE CASE NO. 96F-9428-MDX FINDINGS OF FACT PROCEDURAL HISTORY 1. In 1996, the Board filed a Complaint and Notice of Hearing alleging that Dr. Patton had engaged in unprofessional conduct. ALJ Harold J. Merkow[2] held the hearing on that complaint on May 21, May 22, June 1, July 14, and August 11, 1998. 2. On August 20, 1998, ALJ Merkow submitted his findings of fact and conclusions of law, which were filed with the Board on August 26, 1998. 3. On February 3, 1999, following its meeting on January 29, 1999, the Board entered Findings of Fact, Conclusions of Law and an Order of Probation (also identified in this recommended decision as the “Order of Probation”). 4. The Order of Probation stated as follows[3]: “1. Dr. Patton is placed on probation for a minimum of five years;

2. Dr. Patton shall always have a female chaperone present when he examines female patients and the chaperone shall initial the patient’s chart at the time of the examination;

3. Dr. Patton shall undergo psychotherapy with a Board-approved therapist;

4. Dr. Patton shall practice in a structured practice setting; and

5. Dr. Patton is prohibited from examining the breast and genitalia of female patients 10 years of age and older.” State’s Exhibit No. 55.

5. On February 5, 1999, the Attorney General on behalf of the State of Arizona filed a Motion For Review of the Board’s Findings of Fact, Conclusions of Law and Order. The motion argued that the penalty and terms imposed by the Board were insufficient to protect the public’s health, safety and welfare, and the Order of Probation was not justified by the evidence. 6. On February 18, 1999, Dr. Patton filed a Motion for Rehearing and a Motion to Strike the State’s Motion for Review. 7. On March 26, 1999, at its meeting, the Board granted the State’s Motion for Review and allowed the State “the opportunity to present new evidence for the limited purpose of reviewing the discipline issued in this matter.” Board’s Order of Referral to the Office of Administrative Hearings, p. 1 (October 6, 1999). 8. On April 14, 1999, the Board issued an Order granting the State’s Motion for Review and denying Dr. Patton’s Motion for Rehearing and Motion to Strike. 9. On September 3, 1999, the State filed an Amendment to Motion for Review. 10. On September 24, 1999, the Board reviewed this case with the parties present, and on October 6, 1999, issued this Order: “IT IS HEREBY ORDERED that the State’s claim of new evidence is referred to the Office of Administrative Hearings for review and consideration and that the Office of Administrative Hearings shall provide the Board with a recommended Order in this matter.” Board’s Order of Referral to the Office of Administrative Hearings, p. 1 (October 6, 1999).

11. On October 18, 1999, the Board issued a Notice of Hearing scheduling a hearing at the Office of Administrative Hearings. NEWLY DISCOVERED EVIDENCE The State’s Motion for Review and Amendment to Motion for Review are based on newly discovery evidence and the insufficiency of the penalty of the Board’s February 3, 1999, Order of Probation. The newly discovered evidence are the professional opinions of Carlos Roby, Ph.D. given in a court hearing in Utah and Dr. Patton’s alleged violations of the Board’s January 19, 1996, Interim Stipulation and Order.

A. The Opinions of Carlos Roby, Ph.D. 12. On April 7, 1998, some six weeks prior to the commencement of the hearing before ALJ Merkow, ALJ Merkow ordered Dr. Patton to authorize release of records and information from the persons who had treated or evaluated him regarding his sexual conduct with a minor. ALJ Merkow’s April 7, 1998, prehearing order in pertinent part directed: “IT IS ORDERED that, no later than Wednesday, April 8, 1998, counsel for Dr. Patton will present signed, executed releases of information to enable the Board of Medical Examiners to obtain all documents, records and information in the possession of Richard Y. Moody, Ph.D., Chris R. Hughes, Ph.D. and any other person who may have evaluated or treated Dr. Patton since December 1996. In the event Dr. Patton is unwilling to sign a general release of information form for any person, the identity of the person, together with that person’s address shall be disclosed to the Board of Medical Examiners no later than 5:00 p.m. April 8, 1998.” State’s Exhibit No. 51.

13. In response to this prehearing order, by letter dated April 7, 1998, Dr. Patton’s counsel provided releases for the records of two Utah psychologists, Drs. Chris R. Hughes, Ph.D. and Richard Y. Moody, Ph.D., stating as follows: “Besides Drs. Hughes and Moody, Dr. Patton has been evaluated and treated, for mental health issues, by Richard Irons, M. D., Marvin Hillyard, C. Y. Roby, Ph.D. and Michael Cox, Ph.D. As previously explained, Dr. Patton has no authority to release the records of Dr. Cox or Dr. Roby….Regarding C. Y. Roby, he is the Court’s expert in the Pattons’ child custody case, and I do not believe he has completed his evaluation of Dr. Patton or issued any report. Being the Court’s expert, Dr. Patton has no control over Dr. Roby. Therefore, he cannot authorize release of those records.” (Emphasis added.) State’s Exhibit No. 52.

Dr. Patton did not authorize release of Dr. Roby’s records and did not provide Dr. Roby’s address. 14. The State relied upon the written statement of Dr. Patton’s counsel on April 7, 1998, that he did not believe Dr. Roby’s evaluation had been completed or that Dr. Roby had issued a report. Later, the State learned that Dr. Roby had done an evaluation of Dr. Patton three weeks earlier. 15. Dr. Patton testified on May 21, 1998, the first day of the hearing before ALJ Merkow, about the persons who had treated or seen him regarding his sexual conduct with a minor child. He testified he had seen Dr. Roby, and Dr. Roby had not written an evaluation report. This was a correct statement, as Dr. Roby did not issue an evaluation report until June 6, 1998. 16. Unknown to the State, Dr. Roby had completed an evaluation on March 21, 1998. Also unknown to the State, on May 15, 1998, Dr. Patton had filed a request with the District Court of Washington County, Utah (“Utah District Court”), to seal the court’s file in Patton v. Patton[4]. 17. Unknown to the State, on June 11, 1998, the Utah District Court granted Dr. Patton’s request to seal the court’s file thus preventing the State from obtaining Dr. Roby’s report, or even ascertaining whether a report had been written or filed with the Utah District Court. The court’s order sealing the file specifically mentioned Dr. Roby’s report and addressed which parties had access to Dr. Roby’s report. 18. Between February 5, 1999, and March 16, 1999, the State’s attorneys first learned that Dr. Roby had written an evaluation report regarding Dr. Patton before Dr. Patton had finished testifying in the hearing before ALJ Merkow; that on June 6, 1998, Dr. Roby had issued a written evaluation report which was filed with the Utah District Court in the case of Patton v. Patton; and, that on June 11, 1998, Dr. Patton had obtained an order from the Utah District Court sealing the court’s file of Patton v. Patton, and specifically, Dr. Roby’s evaluation report. 19. On March 16, 1999, the State of Utah on the relation (at the behest) of the State of Arizona moved to intervene and unseal Dr. Roby’s evaluation report filed with the Utah District Court. Dr. Patton opposed the request. The Utah District Court denied the State of Arizona’s motion to intervene and unseal. 20. On August 18, 1999, the State of Arizona on the relation of Janet A. Napolitano, Attorney General, again moved to intervene in the Utah action and unseal Dr. Roby’s evaluation report. The State’s motion to intervene sought access to one document in the sealed file, namely, Dr. Roby’s report. Dr. Patton opposed the request. On November 15, 1999, the Utah District Court denied the State of Arizona’s motion. 21. Dr. Roby is a psychologist appointed by the Utah District Court, as the court’s own independent expert, to evaluate Dr. Patton’s fitness to interact with his children in light of allegations of Dr. Patton’s past sexual conduct with his minor sister-in-law. Dr. Roby has been the only independent expert witness who has testified in Patton v. Patton. Dr. Roby chairs the court’s appointed committee of three expert witnesses (Dr. Patton and his former wife selected the other two members). 22. Dr. Patton does not deny he failed to produce Dr. Carlos Roby or his report at the hearing before ALJ Merkow. He acknowledges that the report was available to him in early June 1998, two months before the hearing ended on August 11, 1998. 23. On September 3, 1999, the Utah District Court held a hearing in Patton v. Patton on Dr. Patton’s request for unsupervised visitation with his children over the Labor Day weekend. The issue before the court was whether Dr. Patton’s supervised visitation rights should be modified. 24. Dr. Roby testified in that hearing, where he rendered the following opinions: a. Dr. Patton showed deviation on the penile plethysmograph test[5], i.e., sexual arousal regarding girls around 12 years of age. Dr. Roby himself conducted a plethysmograph of Dr. Patton in March, 1998, and in July, 1998. Dr. Roby testified: “He showed arousal, I believe, to the plethysmograph around the 12-year-old age level, not as much to three-year old [level]….We didn’t receive anything in the report that suggested anything other than the plethysmograph scenarios were sex with underage female.” State’s Exhibit No. 1, p. 19, ln. 24 through p. 20, ln.7; State’s Exhibit No. 2, Tape at 2:26:46.[6] b. The deviant plethysmograph results are probably the most reliable indices of recidivism. Dr. Roby testified: “Yeah, in fact there’s some recent information that’s come out of Canada, some fairly hallmark studies that suggest that deviant plethysmograph results are probably the most reliable indices of whether or not a person’s going to have problems with recidivism in the future. So they’re - they’re considered very, very valid.” State’s Exhibit No. 1 p. 37, lns. 10 - 16; State’s Exhibit No. 2, Tape at 2:44. c. Dr. Roby diagnoses Dr. Patton as a pedophile, a diagnosis earned by behavior. Dr. Roby testified: “We gave him a diagnosis of rule out pedophilia when we finished the original psychosexual evaluation without the plethysmograph. He also showed deviancies on the plethysmograph which were consistent with a diagnosis of pedophilia. So yes, I would diagnose him as a pedophile.” State’s Exhibit No. 1 p. 17, lns. 2 - 10; State’s Exhibit No. 2, Tape at 2:23:51. “Because he’s basically earned the diagnosis through his behavior.” State’s Exhibit 1 p. 18, lns. 2 - 3; State’s Exhibit No. 2, Tape at 2:24:33. d. It is not appropriate to give Dr. Patton unsupervised visitation with his three children. Dr. Roby testified: “Q.: [I]n your view is it appropriate at this point to completely remove all supervision restrictions on his visitation? A.: No. No.” State’s Exhibit No. 1 p. 20, lns. 10 - 13; State’s Exhibit No. 2, Tape at 2:27:09. e. Dr. Patton is a risk to his children. The risk remains even after successful treatment and evaluation. Dr. Roby testified in response to this question: “Q. (Judge Beacham): I was not involved in this case from the beginning as you are aware. I don’t know all of the background other than what I’ve read primarily in the file. Is there a reason to believe that there is currently or would currently be a risk to the parties’ own children with unsupervised visitation? A.: Let me perhaps jump quickly into this; this is the ATSA ethics manual, Association for the Treatment of Sexual Abusers. Dr. Gray has told me that he’s a member of ATSA. Actually I am not a member of ATSA, but in here it talks about there’s an entire section on reunification and it starts out by saying contact between children and sexual abusers requires specialized treatment procedures and supervision. Individuals who have sexually abused children will continue to present a risk to children even after successful treatment completion. And it’s the whole idea that you’re not really cured of these things. You may learn to control your behavior. One of the things that Dr. Gray has talked about is that he’s got him on a relapse prevention program. We’ve asked for those materials to see what he’s doing in terms of the relapse prevention but we haven’t had anything presented. But under this guideline it states a series of things that should go on in order to make sure that there’s no undue risk presented to children. And you’ll always have to consider that if a person’s ever engaged in this behavior that he may very well engage in this behavior again.” State’s Exhibit No. 1 p. 38, ln. 25 through p. 40, ln. 3; State’s Exhibit No. 2, Tape at 2:45:51. 25. The transcript of Dr. Roby’s September 3, 1999, court testimony does not show that testimony was adduced regarding the facts and data on which Dr. Roby based his opinions and whether those facts and data are the type reasonably relied upon by experts in that field in forming such opinions. No testimony was given regarding Dr. Roby’s qualifications as an expert witness, because the court had previously accepted him as an expert and did not wish to spend time on this point. 26. It is reasonable to find that Dr. Roby’s professional opinions given at the September 3, 1999, hearing were based on his March 21, 1998, evaluation of Dr. Patton, which occurred prior to the first day of the hearing before ALJ Merkow on May 21, 1998. B. The Alleged Violations of the Board’s Interim Stipulation and Order 27. On January 19, 1996, the Board and Dr. Patton entered into an Interim Stipulation and Order (“Interim Order”), which became effective on February 7, 1996. The Interim Order directed as follows: “1. MARK K. PATTON, M. D. shall have an adult female present when he examines any patient between the ages of 0 and 18 years of age.

2. Dr. PATTON shall legibly write the name of the adult female in the patient’s chart at the time of the examination.” Dr. Patton’s Exhibit No. 1.

28. The Stipulation on which the Interim Order was based stated in pertinent part: “MARK K. PATTON, M. D. acknowledges that any violation of this Order constitutes unprofessional conduct within A.R.S. § 32-1401(25)(r), and may result in disciplinary action pursuant to A.R.S. § 32-1451.” Dr. Patton’s Exhibit No. 1.

29. In his proposed Conclusions of Law, ALJ Merkow tied the risk for re-offense to Dr. Patton’s noncompliance with the Interim Order:

“Sufficient evidence exists in the record of this matter on which to conclude that Dr. Patton remains a risk for re-offense because of his access to and control over pediatric female patients between the ages of ten and seventeen years, especially in light of Dr. Patton’s non- compliance with the chaperone requirements imposed by the Board in 1996.” State’s Exhibit No. 55, ALJ’s Proposed Conclusion of Law No.5.

30. After Dr. Patton contended at oral argument on January 29, 1999, that he had complied with the chaperone requirements, the Board deleted a reference in the recommended conclusions of law holding that Dr. Patton had not been in compliance with the Interim Order. 31. The State did not learn until mid-March, 1999, that Dr. Patton had not complied with the Interim Order in all patient examinations. 32. In a letter dated March 16, 1999, the chief executive officer of a Phoenix hospital notified the Board that the hospital had reviewed the health records of three children examined by Dr. Patton in an attempt to verify Dr. Patton’s compliance with the Interim Order. The letter stated that the hospital was unable to confirm compliance with the Interim Order from the health records because there was no evidence in any of the progress notes that an adult female was present during any of the three examinations. 33. Based upon this information, Board staff initiated a separate investigation into Dr. Patton’s compliance with the Interim Order and subpoenaed the applicable medical records of the children from the hospital, along with additional peer review documents. 34. The Complaint and Notice of Hearing issued by the Board on October 4, 1999, in Investigative Case No. 99F-12625-MDX alleged 37 violations of the Interim Order. Because two of those alleged violations occurred prior to or during the administrative hearing of May 21, 1998, to August 11, 1998, they are described in this recommended decision. The other 35 alleged violations are addressed in the recommended decision submitted in Investigative Case No. 99F-12625-MDX concurrently with this recommended decision. 35. Dr. Patton did not write the name of an adult female in the chart of patient M. M. following an examination on March 9, 1998. Dr. Patton testified that the mother of the patient was present, but he omitted to write her name in the chart. 36. Mrs. J. M., the mother of M. M., testified she was present during the examination. She testified as follows: “Q.: When you went to Maryvale Pediatrics with your son [on March 9, 1998] did you ask to be in the examination room, or were you asked to be in the room?

A.: I was not asked to be in the room. I’ve always been in the room with my son. I do not let my son unattended. *** Q.: …Do you remember if there was anyone else in the examination room with you like a nurse or medical assistant? A.: Yes. There was a nurse there. The one that checked on M. M.

Q.: Was she there at the same time that you and Dr. Patton were there?

A.: No, huh-uh. She went out after Dr. Patton went in.

Q.: So during the examination of M. M. it was only yourself and Dr. Patton?

A.: Yes, uh-huh.” Hearing Transcript (“H. T.”) p. 350, ln. 11 through p. 351, ln. 12.

37. Dr. Patton did not write legibly the name of the adult female after he examined patient S. D. on November 13, 1997, at St. Joseph’s Hospital and Medical Center. It was the patient’s mother who was present and whose initials were recorded in the chart. Mr. Palmer, the Board’s investigator, verified that the mother was present during the examination. Steven R. Gray, Ed.D. In response to the State’s introduction into evidence of the video tape and verbatim transcript of Dr. Roby’s September 3, 1999, testimony before the Utah District Court, Dr. Patton was permitted to present the testimony of Steven R. Gray, Ed.D. 38. Steven R. Gray, Ed.D. is a psychologist licensed to practice in the State of Arizona. He specializes and devotes his practice to the assessment and treatment of sexual offenders and victims of sexual assault, and he teaches and publishes on those subjects. Dr. Gray testified he has received training in plethysmography. 39. Dr. Gray has been treating Dr. Patton since June, 1998, for issues relating to the molestation of his sister-in-law 12 to 13 years ago. Dr. Gray’s treatment has been in accordance with the guidelines of the Association for the Treatment of Sexual Abuse, a national association of which Dr. Gray is a member. Dr. Patton started weekly group therapy and individual therapy with Dr. Gray in June, 1998, and the therapy continues to date. 40. Dr. Gray serves with two other psychologists, including Dr. Roby, on the committee appointed by the Utah District Court in Patton v. Patton. 41. Dr. Patton’s treatment regimen has consisted of weekly group therapy with sex offenders and individual therapy and assessment. 42. Dr. Patton has not been consistent in attending weekly individual therapy and group therapy. He has missed individual and group sessions, often due to his therapist’s schedule and Dr. Patton’s schedule, but Dr. Patton’s inconsistent attendance was noted as a negative factor by Dr. Roby at the September 3, 1999, hearing. Dr. Roby noted that during a period of six months in early 1998, Dr. Patton had attended weekly individual therapy for 15 weeks and had missed 11 weeks, and he had attended group therapy for weeks and had missed 11 weeks. In a letter to the Board dated September 10, 1999, Dr. Gray reported that Dr. Patton had had “six (6) months of sporadic individual therapy with me.” Dr. Patton’s Exhibit No. 15, p. 1. 43. Dr. Gray has used plethysmography, polygraph testing, the Millon personality assessment, and the Multiphasic Sex Inventory II in assessing Dr. Patton. 44. It is Dr. Gray’s professional opinion that Dr. Patton is not a pedophile, because (1) he does not meet the diagnostic criteria of pedophilia contained in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, and (2) the plethysmograph assessments of Dr. Patton are inconsistent with a diagnosis of pedophilia. 45. It is Dr. Gray’s professional opinion, after comparing Dr. Patton’s history and his examination results to standard material and research in the United States that are suggestive of recidivism, that Dr. Patton does not meet any of the actuarial findings that are consistent with a high risk of recidivism. 46. It is Dr. Gray’s professional opinion that Dr. Patton is safe to practice pediatric medicine. He bases this opinion on the facts that Dr. Patton’s offenses occurred between 12 and 13 years ago; he has not exhibited any similar patterns of behavior since that time; he has completed primary intervention; he has submitted to therapy for nearly a decade; and, he must comply with the Board’s February 3, 1999, Order of Probation in treating patients. 47. According to Dr. Gray, the terms of probation imposed by the Board’s Order of February 3, 1999, are appropriate, as they adequately protect Dr. Patton’s patients and Dr. Patton (from possible patient allegations of misconduct). The “supervision requirements [Dr. Gray meant the Board’s terms of probation] should be gradually relaxed” only as Dr. Patton’s treatment progresses, and the assessments support the progress of the treatment. H. T. p. 466, lns. 18 - 19. At this time, the supervision requirements (i. e., the Board’s terms of probation) should not be removed. Adverse InferenceS 48. The Utah District Court (in Patton v. Patton) had Dr. Patton evaluated by psychologist Michael Cox, counselor/therapist Marvin Hillyard, and Dr. Roby. 49. Dr. Cox evaluated Dr. Patton in January, 1997. Mr. Hillyard treated Dr. Patton for approximately one year beginning in March, 1997. Dr. Roby evaluated Dr. Patton on March 21, 1998. All of these evaluations occurred prior to the hearing, before ALJ Merkow, that began on May 21, 1998. 50. Dr. Patton did not inform the State that Dr. Roby had evaluated him on March 21, 1998, and Dr. Patton did not release Dr. Roby’s report pursuant to ALJ Merkow’s April 7, 1998, prehearing order. One week before the hearing began before ALJ Merkow, Dr. Patton sought an order from the Utah District Court to seal the court’s file. The court’s order, issued about a week after Dr. Roby had issued and filed with the court his evaluation report, specifically mentioned Dr. Roby’s report. The order sealing the court’s file precluded the State from obtaining a copy of Dr. Roby’s report. 51. To demonstrate that Dr. Patton was a continuing danger and should not be around children, the State called Dr. Cox and Mr. Hillyard to testify before ALJ Merkow and had their records introduced into evidence. 52. ALJ Merkow made findings of fact regarding the testimony of Dr. Cox and of Mr. Hillyard, which the Board adopted. Those findings are not repeated here.[7] 53. Despite knowing that Dr. Roby’s evaluation report had been filed, Dr. Patton neither introduced the report into evidence nor provided testimony about the scope, substance or contents of Dr. Roby’s report. 54. The timing of Dr. Patton’s actions evidences a desire and concerted plan to secret Dr. Roby’s report from the State and the Board in this disciplinary proceeding. Although Dr. Patton testified he was concerned for his children about the possible release of information in the court’s Patton v. Patton file, it is reasonable to find that the fact this administrative hearing, with possible adverse professional consequences for him, was proceeding was a strong reason to obtain the sealing of the court’s file, which included Dr. Roby’s evaluation report. 55. Promptly upon learning that Dr. Patton’s statements had been misleading or untrue regarding Dr. Roby’s evaluation of Dr. Patton, and that the Utah District Court had sealed Dr. Roby’s report, the State twice filed actions in the Utah District Court seeking to intervene and unseal Dr. Roby’s report for use in this case. Dr. Patton objected both times, and the Utah District Court denied both of the State’s requests. INSUFFICIENCY OF THE PENALTY IN THE BOARD’S ORDER OF PROBATION 56. At its meeting on January 29, 1999, the Board considered ALJ Merkow’s proposed findings of fact and conclusions of law. After hearing oral argument from counsel on the modification or adoption of the ALJ Merkow’s recommendations, the Board adopted 54 findings of fact and nine conclusions of law. 57. Among other findings of fact, the Board found that: a. Dr. Patton engaged in sexually inappropriate conduct with a female child, then his sister-in-law, when she was 12 and 13 years old. b. The risk of Dr. Patton’s repeating his offense is lifelong and is not limited to the time period imposed under the terms of probation. Dr. Patton remains a risk for recidivism because he has not participated in long term therapy, his pediatric practice allows him to maintain contact with children, and Dr. Patton has a personality trait disorder which makes him continue to deny and minimize. c. The expert testimony established that group therapy (as opposed to individual therapy) is an essential element of sex offender treatment. Dr. Patton presented no evidence to show he had attended group therapy sessions as recommended by the expert witnesses. d. Dr. Patton made a false and misleading statement on his licensing application regarding criminal charges in Utah for the rape of a minor girl. 58. Based upon these and other findings of fact, the Board concluded that: a. Dr. Patton’s sexual contact with a minor child, his former sister- in-law, demonstrated deviant sexual conduct amounting to classification of Dr. Patton as a sex offender who requires long term treatment and therapy, irrespective of diagnostic label. b. There is insufficient evidence in the record of this case to conclude that Dr. Patton is a sexual predator or that he currently meets the diagnostic criteria set forth in the DSM-IV for a diagnosis of pedophilia. c. There is sufficient evidence in the record of this case to conclude that Dr. Patton might be a risk to the health and safety of teenage girls between the ages of 12 through 17. d. Dr. Patton’s sexual molestation of the minor girl constituted unprofessional conduct pursuant to A.R.S. § 32-1401(25)(d) (commission of a felony). e. Dr. Patton knowingly submitted a false or misleading licensing application to the Board in violation of A.R.S. § 32-1401(25)(jj). f. Dr. Patton’s conduct constituted unprofessional conduct pursuant to A.R.S. § 32-1401(25)(q) (any conduct that is or might be harmful or dangerous to the health of the patient or the public). 59. The Board placed Dr. Patton on a minimum of five years probation and ordered him to: a. Have a female chaperone present when he examines female patients, and the chaperone must initial the patient’s chart at the time of the examination. b. Undergo psychotherapy with a Board-approved therapist who is required to provide the Board with quarterly reports. c. Practice in a structured setting; and, d. Refrain from examining the breasts and genitalia of female patients years of age and older. 60. Based upon the findings and conclusions adopted by the Board and the evidence presented at the review hearing, the Order of Probation is insufficient to protect Dr. Patton’s patients because of the risk to re- offend absent continuing appropriate therapy and treatment. Dr. Gray, a witness adverse to the State, testified: “[W]henever there’s a case of child sexual abuse a person needs to be gradually reintroduced into situations where they may have power over certain persons. This includes the family and vocational as well, along with treatment supervision and continued assessment and as the treatment progresses, and as the assessment supports the progress and treatment, then the supervision requirements should be gradually relaxed.” H. T. p. 466, lns. 11 - 19.

61. Based upon the findings and conclusions adopted by the Board and the evidence presented at the review hearing, the Order of Probation is insufficient to protect Dr. Patton’s patients because the chaperone provision, which permits Dr. Patton to examine female patients of any age, falls below the expectations and recommendations of Richard Irons, M. D., the expert who testified about chaperoning. When asked about the use of a chaperone as referenced in his report, Dr. Irons testified he did not mean the parent of a child but rather he meant a clinical person. He indicated a clinical person is a licensed health professional who knows why he or she is being asked to be present during the examination. When a chaperone is not required to be informed about Dr. Patton’s prior molestation of a child, or about the Order of Probation, the chaperone has no idea what she is supposed to be chaperoning, and she serves little useful purpose. 62. Based upon the findings and conclusions adopted by the Board and the evidence presented at the review hearing, the Order of Probation is insufficient to protect Dr. Patton’s patients because prohibiting him from performing breast or genitalia exams of girls ten years and older falls below the minimum recommendations of the experts who testified at hearing. Dr. Irons testified that Dr. Patton should not have primary female patients in the post-pubertal age group, and that as Dr. Patton’s patients neared puberty, he should refer them to other practitioners. This testimony was not controverted. 63. Based upon the findings and conclusions adopted by the Board and the evidence presented at the review hearing, the Order of Probation is insufficient to protect Dr. Patton’s patients because the therapy provision fails to address the principal issues identified by experts for both parties, namely, scope, frequency and duration of individual and group therapy; group sex offender treatment; training and experience of the treating psychotherapist; and, Dr. Patton’s past problems of controlling the therapy and resisting. According to Dr. Gully, who evaluated Dr. Patton in Utah, Dr. Patton’s psychotherapy sessions should be fixed to a given number per year, rather than based on performance. In Dr. Gully’s opinion, Dr. Patton should complete 20 sessions in the ensuing 12 months, and thereafter should complete ten sessions per year until his children are all years of age. Dr. Patton, however, saw Dr. Gully only twice, and did not attend therapy again for almost two years. Dr. Patton’s next therapist, Chris R. Hughes, Ph.D., testified he expected Dr. Patton to participate in weekly to biweekly sessions as part of a sex offender program, but he found Dr. Patton resistant to attending weekly sessions. CONCLUSIONS OF LAW 1. The Board has the authority to refer a motion for review to the Office of Administrative Hearings to conduct a hearing and obtain a recommended decision. Upon such a referral, the Office of Administrative Hearings will conduct a hearing and will submit a recommended decision and order to the Board.[8] The Board “may affirm, reverse, adopt, modify, supplement, amend or reject the [ALJ’s] findings of fact and conclusions of law in whole or in part.” A.R.S. § 32-1451(J). The Board, and not the ALJ, will make the final decision in this case, including the disposition of the State’s Motion for Review and Amendment to Motion for Review. A.R.S. § 41- 1092.09(D).[9] 2. The Board’s rules include as a ground for review, “Newly discovered material evidence which could not with reasonable diligence have been discovered and produced at the original hearing.” R4-16-102(C)(4), Ariz. Admin. Code. Rule R4-16-102 was adopted pursuant to A.R.S. § 41-1062(B), which states: “Except when good cause exists otherwise, the agency shall provide an opportunity for a rehearing or review of the decision of an agency before such decision becomes final. Such rehearing or review shall be governed by agency rule drawn as closely as practicable from rule 59, Arizona Rules of Civil Procedure, relating to new trial in superior court.”

Rule 59(a)(4), Ariz. R. Civ. P., states, “Material evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at the trial.” Therefore, it is appropriate to interpret Rule R4-16-102(C)(4) in light of the case law interpreting Rule 59(a)(4), supra. Dioguardi v. Superior Court, 184 Ariz. 414, 909 P.2d 481 (App. 1995). In order to grant a motion for new trial on the ground of newly discovered evidence, “it must appear to the trial court” that the newly discovered evidence: a. “would probably change the result upon rehearing;” b. “must have been in existence at the time of the trial,” and, c. “the evidence could not have been discovered before trial by the exercise of due diligence.” Roberts v. Morgensen Motors, 135 Ariz. 162, 165, 659 P.2d 1307, 1310 (1982); Ashton v. Sierrita Mining and Ranching, 21 Ariz. App. 303, 518 P.2d 1020 (1974). The newly discovered evidence must be “material.” Ghyselinck v. Buchanan, 13 Ariz. App. 125, 474 P.2d 844 (1970), and must not be merely cumulative. Ohio Framers Insurance Co. v. Norman, 122 Ariz. 330, 594 P.2d 1026 (App. 1979). The Arizona Supreme Court has defined “material” as “something of solid or weighty character; substantial; of consequence; not to be dispensed with. And in law such as does or would affect the determination of the case.” Campbell v. Territory of Arizona, 14 Ariz. 109, 118, 125 P. 717, 721 (1912). 3. The State exercised more than reasonable diligence to obtain a copy of Dr. Roby’s evaluation report. First, the State requested ALJ Merkow to compel Dr. Patton to authorize release of evaluative and treatment records and information about Dr. Patton. Second, in anticipation of obtaining Dr. Roby’s report pursuant to Dr. Patton’s expected authorization, the State listed Dr. Roby and his report on the State’s final witness and exhibits lists. Third, the State asked Dr. Patton on the first day of hearing about Dr. Roby and his report. Fourth, promptly upon learning that Dr. Patton’s statements had been misleading or untrue, and that the Utah District Court had sealed Dr. Roby’s report, the State twice moved that Court to intervene and unseal the report for use in this proceeding. Dr. Patton objected both times, and the Utah District Court denied the State’s actions on both occasions. 4. Dr. Roby’s testimony given at the September 3, 1999, hearing of the Utah District Court in Patton v. Patton satisfies the requirements of newly discovered evidence. His professional opinions “could not with reasonable diligence have been discovered and produced at the” hearing before ALJ Merkow. R4-16-102(C)(4), supra. Dr. Roby’s evaluation had been done prior to the commencement of the hearing, and his report was filed with the Utah District Court before the hearing ended, but this information was not then known to the State. Dr. Roby’s professional opinions, given in his capacity as the court’s own independent expert witness, would probably have changed ALJ Merkow’s findings of fact and conclusions of law, are material evidence, and are not merely cumulative. It is reasonable to conclude that Dr. Roby’s professional opinions given during the September 3, 1999, hearing were based on his evaluation of Dr. Patton made on March 21, 1998. 5. A.R.S. §32-1401(25)(r) states: “25. ‘Unprofessional conduct’ includes the following, whether occurring in this state or elsewhere:

(r) Violating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director under the provisions of this chapter.”

6. Dr. Patton’s failure to write in the patient’s chart the name of the adult female present during the examination of patient M. M. on March 9, 1998, and his failure to write legibly the name of the adult female present after he examined patient S. D. on November 13, 1997, constitute violations of the Board’s Interim Order. Although a person - who can only be presumed was then an adult female - was present during the examinations, according to Dr. Patton, he did not record their names in accordance with the terms of the Interim Order. 7. Dr. Patton’s failure to comply with the Interim Order in these two occasions constitute acts of unprofessional conduct pursuant to A.R.S. § 32- 1401(25)(r), as they violated the Interim Order, a formal order of the Board. A.R.S. § 32-1401(25)(r). 8. Dr. Patton’s violations of the Interim Order following the examinations of patients M. M. (March 9, 1998) and S. D. (November 13, 1997) meet the requirements of newly discovered evidence. The violations “could not with reasonable diligence have been discovered and produced at the” hearing before ALJ Merkow. R4-16-102(C)(4), supra. The violations occurred prior to that hearing, are material evidence of unprofessional conduct pursuant to A.R.S. § 32-1401(25)(r), and are not cumulative evidence. 9. An “adverse inference from the failure to call a particular witness should not be drawn unless the failure ‘leads to a reasonable conclusion that the party is unwilling to allow the [fact finder] to have the full truth,’…[and] such an inference may be utilized ‘where the existence or nonexistence of a certain fact is within the peculiar knowledge of a witness, and he fails to testify as to the fact.’ In such circumstances the trier of fact may justly draw the inference that the fact is against his interest.” Ponce v. Industrial Commission of Arizona, 120 Ariz. 134, 136, 584 P.2d 598, 600 (App. 1978). An adverse inference should not be drawn when the witness' testimony would be merely cumulative, and when the witness was equally available to both parties. Id. Dr. Patton’s failure to produce Dr. Roby’s evaluation of Dr. Patton during the May 21, 1998, to August 11, 1998, hearing mandates that the inference be drawn that Dr. Roby’s evaluation report is adverse to Dr. Patton. ALJ Merkow had directed Dr. Patton to permit the report’s release. The report was available to Dr. Patton before the hearing ended. Dr. Patton knew the State was interested in reviewing the report, and depending on its contents, might present it as an exhibit at the hearing. Dr. Roby’s report was not available to the State as it was available to Dr. Patton. Dr. Roby’s report was not merely cumulative evidence. Lastly, Dr. Roby’s testimony on September 3, 1999, shows his report is not favorable to Dr. Patton. But on a fine review of the evidence, the same adverse inference will not be drawn from Dr. Patton’s actions of moving to seal the court’s file in Patton v. Patton and opposing the State’s two actions in relation pursued in Utah. Dr. Patton’s concerns about his privacy and that of his children, at this point in time, are reasonably valid. The fact remains, however, that he requested the order of sealing at a propitious time during the proceedings before ALJ Merkow. 10. The Board must consider the newly discovered evidence of Dr. Roby’s professional opinions and of Dr. Patton’s two violations of the Board’s Interim Order in its review of the sufficiency of the disciplinary penalty of probation imposed by the Board. 11. The probation imposed by the Board in its February 3, 1999, Order of Probation is insufficient and not justified by the evidence. The Board should increase the disciplinary penalty to be consistent with the totality of the evidence and the seriousness of Dr. Patton’s unprofessional conduct. See A.R.S. § 32-1451(L).[10] 12. The evidence supports a requisite that the adult female chaperone should be a licensed health professional. A chaperone should be a qualified and independent individual. Further, confusion would be eliminated. RECOMMENDED ORDER It is recommended that the Board: 1. Suspend Dr. Patton’s license to practice allopathic medicine for a period of time not to exceed twelve months. 2. Upon completion of the suspension, place Dr. Patton on probation for a minimum period of three years subject to the conditions contained in the Board’s February 3, 1999, Order of Probation except that: A. Dr. Patton shall have a licensed health professional present when he examines a female patient between the ages of 0 and 18 years of age. B. Dr. Patton shall legibly write the full name of the licensed health professional in the patient’s chart at the time of the examination. C. In the quarterly reports to the Board, Dr. Patton’s Board- approved treating therapist shall report Dr. Patton’s attendance record at both individual and group therapy sessions. 3. Vacate the Interim Order. INVESTIGATIVE CASE NO. 99F-12625-MDX FINDINGS OF FACT PROCEDURAL HISTORY Findings of Fact No. 1 through 9 refer to Investigative Case No. 96F- 9428-MDX which was proceeding when Investigative Case No. 99F-12625-MDX arose. 1. On January 19, 1996, during the pendency of Investigative Case No. 96F-9428-MDX, the Board and Dr. Patton entered into an Interim Stipulation and Order (“Interim Order”), which became effective on February 7, 1996. The Interim Order directed as follows: “1. MARK K. PATTON, M. D. shall have an adult female present when he examines any patient between the ages of 0 and 18 years of age.

2. Dr. PATTON shall legibly write the name of the adult female in the patient’s chart at the time of the examination.” Dr. Patton’s Exhibit No. 1, p. 2.

2. The Stipulation on which the Interim Order was based stated in pertinent part: “MARK K. PATTON, M. D. acknowledges that any violation of this Order constitutes unprofessional conduct within A.R.S. § 32-1401(25)(r), and may result in disciplinary action pursuant to A.R.S. § 32-1451.” Dr. Patton’s Exhibit No. 1 p. 1. 3. On February 3, 1999, the Board entered Findings of Fact, Conclusions of Law and an Order of Probation in Investigative Case No. 96F- 9428-MDX. 4. On February 5, 1999, the Attorney General on behalf of the State of Arizona filed a Motion For Review of the Board’s Findings of Fact, Conclusions of Law and Order. The motion argued that the penalty and terms imposed by the Board were insufficient to protect the public’s health, safety and welfare, and that the Order of Probation was not justified by the evidence. 5. On February 18, 1999, Dr. Patton filed a Motion for Rehearing and a Motion to Strike the State’s Motion for Review. 6. On March 26, 1999, at its meeting, the Board granted the State’s Motion for Review and allowed the State “the opportunity to present new evidence for the limited purpose of reviewing the discipline issued in this matter.” Board’s Order of Referral to the Office of Administrative Hearings, p. 1 (October 6, 1999). 7. On April 14, 1999, the Board issued an Order granting the State’s Motion for Review and denying Dr. Patton’s Motion for Rehearing and Motion to Strike. 8. On September 3, 1999, the State filed an Amendment to Motion for Review. 9. On September 24, 1999, the Board with the parties present reviewed Investigative Case No. 96F-9428-MDX, and on October 6, 1999, issued this Order: “IT IS HEREBY ORDERED that the State’s claim of new evidence is referred to the Office of Administrative Hearings for review and consideration and that the Office of Administrative Hearings shall provide the Board with a recommended Order in this matter.” Board’s Order of Referral to the Office of Administrative Hearings, p. 1 (October 6, 1999).

10. On October 18, 1999, the Board issued a Notice of Hearing in Investigative Case No. 96F-9428-MDX, scheduling a hearing at the Office of Administrative Hearings. The Commencement of Investigative Case No. 99F-12625-MDX 11. In a letter dated March 16, 1999, the chief executive officer of a Phoenix hospital notified the Board that the hospital had reviewed the health records of three children examined by Dr. Patton in an attempt to verify Dr. Patton’s compliance with the Interim Order. The letter stated that the hospital was unable to confirm compliance with the Interim Order from the health records because there was no evidence in any of the progress notes that an adult female was present during any of the three examinations. 12. Based upon this information, Board staff initiated a separate investigation into Dr. Patton’s compliance with the Interim Order and subpoenaed the applicable medical records of the children from the hospital, along with additional peer review documents. In the opinion of the Board’s investigators, these records showed that Dr. Patton had not complied with the Interim Order in all patient examinations. 13. On April 7, 1999, Board staff subpoenaed the records from the first hospital and three additional hospitals showing the names and medical record numbers of all patients, ages zero to 18 years, seen or treated by Dr. Patton, from November 1, 1998, through March 1, 1999, including all patients for whom Dr. Patton served as either attending or consulting physician and saw or treated while covering for another pediatrician. 14. In addition, Board investigators conducted three random surveys of patient records at Dr. Patton’s medical office. THE ALLEGED VIOLATIONS OF THE INTERIM ORDER 15. On October 4, 1999, the Board issued a Complaint and Notice of Hearing alleging that Dr. Patton had failed to comply with the Interim Order in 37 occasions which constituted acts of unprofessional conduct pursuant to A.R.S. § 32-1401(25)(q) and -(25)(r). A disciplinary proceeding was commenced pursuant to A.R.S. §§ 32-1451 and 41-1092 through 41-1092.12. 16. The allegations in the Complaint concern 37 patients. Seven of those patients were seen in a hospital, and thirty were seen in Dr. Patton’s medical offices. 17. Two male patients and four female patients were seen at Phoenix Children’s Hospital between December 7, 1998, and February 12, 1999, and a female patient was seen at St. Joseph’s Hospital and Medical Center on November 13, 1997. 18. The thirty office charts are of male patients who were seen after February 3, 1999, with the exception of M. M., a male patient who was seen on March 9, 1998, and N. W., a female patient who was seen on July 14, 1999. 19. The patient charts submitted at the hearing show that Dr. Patton did not write the name of the adult female, who was present during the examination, in the patient’s chart on 28 occasions. On five occasions, Dr. Patton did not write legibly the name of the adult female in the patient’s chart at the time of the examination. On one occasion, he did not write the adult female’s name in the patient’s chart until six weeks after the examination. Seven of these 34 examinations occurred prior to February 3, 1999. NOT WRITING THE ADULT FEMALE’S NAME IN THE CHART 20. Dr. Patton did not write the name of an adult female in the following 28 patient charts[11]: 1. March 9, 1998, examination of patient M. M. 2. December 29, 1998, examination of patient A. R. 3. January 17, 1999, examination of patient L. C. 4. March 8, 1999, examination of patient J. R. 5. March 10,1999, examination of patient I. P. 6. April 13, 1999, examination of patient G. P. 7. April 19, 1999, examination of patient G. P. 8. April 22, 1999, examination of patient I. P. 9. April 26, 1999, examination of patient J. S. 10. May 4, 1999, examination of patient N. A. 11. May 12, 1999, examination of patient I. P. 12. June 2, 1999, examination of patient J. P. 13. June 9, 1999, examination of patient J. S. 14. June 9, 1999, examination of patient J. R. 15. June 14, 1999, examination of patient E. L-P. 16. June 28, 1999, examination of patient J. R. 17. June 29, 1999, examination of patient E. L-P. 18. July 6, 1999, examination of patient C. P. 19. July 6, 1999, examination of patient C. H. 20. July 6, 1999, examination of patient F. H. 21. July 9, 1999, examination of patient D. M. 22. August 4, 1999, examination of patient J. L. 23. August 9, 1999, examination of patient S. M. 24. December 7, 1998, examination of patient J. R. 25. January 16, 1999, examination of patient C. R. 26. January 17, 1999, examination of patient T. V. 27. February 25, 1999, examination of patient C. S. 28. March 23, 1999, examination of patient E. Z. 21. Paragraph 12(A) of the Complaint alleges that Dr. Patton examined patient M. M. on March 9, 1998, without an adult female being present. Dr. Patton testified that the mother of the patient was present, but he did not write her name in the chart. 22. Mrs. J. M., the mother of M. M., testified she was present during the examination. She testified as follows: “Q.: When you went to Maryvale Pediatrics with your son [on March 9, 1998] did you ask to be in the examination room, or were you asked to be in the room?

Q.: Was she there at the same time that you and Dr. Patton were there?

A.: No, huh-uh. She went out after Dr. Patton went in.

Q.: So during the examination of M. M. it was only yourself and Dr. Patton?

A.: Yes, uh-huh.” Hearing Transcript (“H. T.”) p. 350, ln. 11 through p. 351, ln. 12.

23. Paragraph 12(B) of the Complaint alleges that Dr. Patton examined patient A. R. on December 29, 1998, without an adult female being present. Dr. Patton testified that the mother of the patient was present, but he did not write her name in the chart. Mr. Palmer, the Board’s investigator, attempted to contact the parents of A. R. to verify the mother’s presence, but he was unable to locate them. 24. Paragraph 12(C) of the Complaint alleges that Dr. Patton examined patient L. C. on January 17, 1999, without an adult female being present. Dr. Patton testified that the mother of the patient was present, but he did not write her name in the chart. Mr. Palmer attempted to contact the parents of L. C. to verify the mother’s presence, but he was unable to locate them. 25. Paragraph 12(D) of the Complaint alleges that Dr. Patton examined patient J. R. on March 8, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. J. R. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 26. Paragraph 12(E) of the Complaint alleges that Dr. Patton examined patient I. P. on March 10, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. I. P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 27. Paragraph 12(F) of the Complaint alleges that Dr. Patton examined patient I. P. on April 1, 1999, without an adult female being present. Dr. Patton testified he did not see this patient on that date. The patient was seen by another physician, Harry Broome, M. D. 28. Paragraph 12(G) of the Complaint alleges that Dr. Patton examined patient G. P. on April 13, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. G. P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 29. Paragraph 12(H) of the Complaint alleges that Dr. Patton examined patient G. P. on April 19, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. G. P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 30. Paragraph 12(I) of the Complaint alleges that Dr. Patton examined patient I. P. on April 22, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. I. P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 31. Paragraph 12(J) of the Complaint alleges that Dr. Patton examined patient J. S. on April 26, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. J. S. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 32. Paragraph 12(K) of the Complaint alleges that Dr. Patton examined patient N. A. on May 4, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. N. A. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 33. Paragraph 12(L) of the Complaint alleges that Dr. Patton examined patient I. P. on May 12, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. I. P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 34. Paragraph 12(M) of the Complaint alleges that Dr. Patton examined patient J. P. on June 2, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. J. P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 35. Paragraph 12(N) of the Complaint alleges that Dr. Patton examined patient J. S. on June 9, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. J. S. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 36. Paragraph 12(O) of the Complaint alleges that Dr. Patton examined patient J. R. on June 9, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the char. J. R. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 37. Paragraph 12(P) of the Complaint alleges that Dr. Patton examined patient E. L-P. on June 14, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. E. L-P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 38. Paragraph 12(Q) of the Complaint alleges that Dr. Patton examined patient D. G. on June 28, 1999, without an adult female being present. Dr. Patton testified that he did not examine the patient on that date but had a psychiatric consultation (he made a psychiatric referral). D. G. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 39. Paragraph 12(R) of the Complaint alleges that Dr. Patton examined patient J. R. on June 28, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. J. R was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 40. Paragraph 12(S) of the Complaint alleges that Dr. Patton examined patient E. L-P on June 29, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. E. L-P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 41. Paragraph 12(T) of the Complaint alleges that Dr. Patton examined patient C. P. on July 6, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. C. P. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 42. Paragraph 12(U) of the Complaint alleges that Dr. Patton examined patient C. H. on July 6, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. C. H. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 43. Paragraph 12(V) of the Complaint alleges that Dr. Patton examined patient F. H. on July 6, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. F. H. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 44. Paragraph 12(W) of the Complaint alleges that Dr. Patton examined patient D. M. on July 9, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. D. M. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 45. Paragraph 12(X) of the Complaint alleges that Dr. Patton examined patient J. L. on August 4, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. J. L. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 46. Paragraph 12(Y) of the Complaint alleges that Dr. Patton examined patient S. M. on August 9, 1999, without an adult female being present. Dr. Patton testified that a parent was present, but he did not write the name in the chart. S.M. was a male patient, and this visit occurred after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 47. Paragraph 13(A) of the Complaint alleges that Dr. Patton examined patient J. R. on December 7, 1998, and that he failed to write the name of the adult female in the chart. Dr. Patton testified that the mother was present, but he omitted to write her name in the chart. Mr. Saldate, the Board’s investigator, verified that the mother was present. 48. Paragraph 13(B) of the Complaint alleges that Dr. Patton examined patient C. R. on January 16, 1999, and that he failed to write the name of the adult female in the chart. Dr. Patton testified that the mother was present, but he omitted to write her name in the chart. Mr. Palmer, the Board’s investigator, verified that the mother was present. 49. Paragraph 13(C) of the Complaint alleges that Dr. Patton examined patient T. V. on January 17, 1999, and that he failed to write the name of the adult female in the chart. Dr. Patton testified that the mother was present, but he omitted to write her name in the chart. Mr. Palmer verified that the mother was present. 50. Paragraph 13(D) of the Complaint alleges that Dr. Patton examined patient C. S. on February 25, 1999, and that he failed to write the name of the adult female in the chart. Dr. Patton testified that a parent was present, but he omitted to write the name in the chart. C. S. was a male patient, and he was seen after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. 51. Paragraph 13(E) of the Complaint alleges that Dr. Patton examined patient E. Z. on March 23, 1999, and that he failed to write the name of the adult female in the chart. Dr. Patton testified that a parent was present, but he omitted to write the name in the chart. E. Z. was a male patient, and he was seen after the Board entered its Findings of Fact, Conclusions of Law and Order on February 3, 1999. NOT WRITING THE ADULT FEMALE’S NAME LEGIBLY IN THE CHART 52. Dr. Patton did not write legibly the name of the adult female in the following five patient charts: 1. November 13, 1997, examination of patient S. D. 2. February 9, 1999, examination of patient G. I. 3. July 14, 1999, examination of patient N. W. 4. July 27, 1999, examination of patient J. V. 5. July 27, 1999, examination of patient D. V. In each of these examinations, Dr. Patton recorded the initials of a person who, according to his testimony, was present during the examination. 53. Paragraph 14(A) of the Complaint alleges that Dr. Patton examined patient S. D., a female patient, on November 13, 1997, and that he failed to write legibly the name of the adult female in the chart. It was the patient’s mother who was present and whose initials were recorded in the chart. Mr. Palmer verified that the mother was present during the examination. 54. Paragraph 14(B) of the Complaint alleges that Dr. Patton examined patient C. B. on January 13, 1998, and that he failed to write legibly the name of the adult female in the chart. Dr. Patton testified that he did not examine the patient on that date, and there are no physical findings recorded in the chart for that date. Dr. Patton did, however, write the name and initials of the patient’s mother in other sections of the chart. 55. Paragraph 14(C) of the Complaint alleges that Dr. Patton examined patient G. I. on February 9, 1999, and that he failed to write legibly the name of the adult female in the chart. It was the patient’s mother who was present and whose initials were recorded. The mother initialed the chart “A. F.” 56. Paragraph 14(D) of the Complaint alleges that Dr. Patton examined patient N. W. on July 14, 1999, and that he failed to write legibly the name of the adult female in the chart. Dr. Patton did not write the name of the adult female in the chart. The patient’s mother was present, and she initialed the chart “T. B.” 57. Paragraph 14(E) of the Complaint alleges that Dr. Patton examined patient J. V. on July 27, 1999, and that he failed to write legibly the name of the adult female in the chart. His medical assistant, Ms. Diane Veach, was present, and her initials, but not her name, were recorded. Ms. Veach initialed the chart “D. V.” 58. Paragraph 14(F) of the Complaint alleges that Dr. Patton examined patient D. V. on July 27, 1999, and that he failed to write legibly the name of the adult female in the chart. His medical assistant, Ms. Veach, was present, and her initials, but not her name, were recorded. Ms. Veach initialed the chart “D. V.” NOT RECORDING TIMELY THE ADULT FEMALE’S NAME IN THE CHART 59. Paragraph 15 of the Complaint alleges that Dr. Patton examined patient T. P. on February 12, 1999, and he did not write the name of the adult female in the chart until March 28, 1999, six weeks later. Dr. Patton testified that T. P.’s mother was present during the examination, but he neglected to write her name in the chart at that time. He testified he discovered this omission when preparing a discharge summary on March 28, 1999, and he recorded the mother’s name at that time. The entry of the mother’s name in the chart was dated March 28, 1999. 60. Dr. Patton testified he sees between 25 and 45 patients a day, five days a week and every sixth weekend when on call. Forty five patients would be “a busy winter day.” H. T. p. 317, ln. 10. 61. Dr. Patton believed that the Board’s Findings of Fact, Conclusions of Law and Order of February 3, 1999, superseded the Interim Order. 62. On June 30, 1999, Dr. Patton appeared before the Board to review his compliance with both the Interim Order and the Order of Probation of February 3, 1999. At that hearing, Dr. Patton advised the Board that he was following the Order of February 3, 1999, and no one had told him that he should not be following that Order, but instead the Interim Order. 63. In July, 1999, Mr. Palmer informed Dr. Patton that a review of his office charts showed Dr. Patton was not in compliance with the Interim Order. Dr. Patton advised Mr. Palmer that the requirements had been changed by the Board’s Order of Probation. Mr. Palmer then told Dr. Patton that, because a motion for review had been filed, Dr. Patton was required to comply with the Interim Order. 64. Following this discussion with Mr. Palmer, Dr. Patton consulted his attorney and was told that Mr. Palmer was wrong, that the law had changed, and that he should continue to obey the Order of Probation of February 3, 1999. 65. On July 22, 1999, Dr. Patton’s attorney wrote to the Board to explain that the Board’s Order of February 3, 1999 - not the Interim Order - was in effect. 66. On July 24, 1999, Mr. Adams, the Board’s Assistant Director for Regulation, wrote a letter in response stating it was the Board’s position that Dr. Patton was required to comply with the Interim Order. 67. Dr. Patton testified that since he was advised of Mr. Adams’ letter in August, 1999, Dr. Patton has attempted to comply with both the Interim Order and the Order of Probation. 68. It appears that the Maryvale Hospital Medical Center believed that the adult female chaperone requirement meant a licensed health professional. In a letter dated March 15, 1999, the hospital’s chief executive officer wrote to Dr. Patton: “You are reminded to: (1) be accompanied by a female chaperone when treating patients at Maryvale Hospital Medical Center and, (2) request the female chaperone (RN or LPN) to document and sign the patient record verifying you were accompanied during the patient examination.” (Emphasis added.) Dr. Patton’s Exhibit No. 5.

CONCLUSIONS OF LAW 1. The Board has authority to enter an appropriate order in this case, as Dr. Patton holds a license issued by the Board. A.R.S. §§ 32-1401 and 32- 1403. 2. The State of Arizona has the burden of proof, and the standard of proof on all issues is the preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996); Rule R2-9-119, supra. A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, § 5 (1960). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). 3. The Order of Probation of February 3, 1999, entered in Investigative Case No. 96F-9428-MDX is not a final decision of the Board, as the State’s Motion for Review and Amendment to Motion for Review await the Board’s determination. Rule R4-16-102(B)(D) and (G), supra. The Board has not resolved all contested issues before it, and has not issued a final decision in Investigative Case No. 96F-9428 which is subject to judicial review. A.R.S. § 41-1092.09(B)[12]; see Southwestern Paint & Varnish Co. v. Arizona Dept. of Environmental Quality, 194 Ariz. 22, 976 P.2d 872 (1999). 4. The Interim Order which became effective on February 7, 1996, remains in effect. The Board’s February 3, 1999, Order of Probation did not, as a matter of law, supersede the Interim Order. The ALJ recommends that when the Board issues its final decisions in these cases, it clarifies the status of the Interim Order and expressly vacates it. In light of the recommended orders submitted to the Board, the Interim Order will not serve any purpose. 5. A.R.S. §32-1401(25)(q) and -(25)(r) state: “25. ‘Unprofessional conduct’ includes the following, whether occurring in this state or elsewhere:

(q) Any conduct or practice which is or might be harmful or dangerous to the health of the patient or the public.

(r) Violating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director under the provisions of this chapter.”

6. The preponderance of the evidence shows that Dr. Patton did not examine any of the patients named in the Board’s Complaint without another person being present. A person, most often the patient’s mother but on two occasions a medical assistant, was present during the examinations described in the Board’s Complaint. These mothers and the medical assistant are presumed to have been female adults at the time of the examinations. 7. The following acts and omissions, more fully described in the findings of fact, constitute 34 acts of unprofessional conduct pursuant to A.R.S. § 32-1401(25)(r), as they violated the Interim Order, a formal order of the Board: a. Dr. Patton did not write the name of the adult female or the person present during the examination of a patient on 28 occasions. Although a person was present during the examinations, according to Dr. Patton, he did not record their names in the patients’ charts. b. Dr. Patton did not legibly write the name of the adult female or the person present during the examination on five occasions. Although he initialed the charts, the Interim Order required the “name” of the adult female. c. Dr. Patton did not contemporaneously record the name of the adult female or the person present during one patient examination. The delay of six weeks to record the name was not reasonable and violated the terms of the Interim Order. 8. These acts and omissions do not constitute violations of A.R.S. § 32-1401(25)(q), as they do not constitute “conduct or practice which is or might be harmful or dangerous to the health of the patient or the public.” A.R.S. § 32-1401(25)(q). 9. Dr. Patton’s violations of A.R.S. § 32-1401(25)(r) constitute grounds on which the Board may discipline Dr. Patton for unprofessional conduct pursuant to A.R.S. § 32-1451. A.R.S. §§ 32-1401(25)(r) and 32- 1451(L). 10. The facts a person was present during the examinations, either the patient’s mother or, in two cases, a medical assistant (both presumed to be female adults), and the low number of violations found relative to the level of Dr. Patton’s practice, are mitigating factors. No other mitigating factors exist. 11. The evidence supports a requisite that the adult female chaperone should be a licensed health professional. A chaperone should be a qualified and independent individual. Further, confusion would be eliminated. RECOMMENDED ORDER It is recommended that the Board: 1. Place Dr. Patton on probation for a minimum period of three years subject to the following conditions: A. Dr. Patton shall have a licensed health professional present when he examines a female patient between the ages of 0 and 18 years of age. B. Dr. Patton shall legibly write the full name of the licensed health professional in the patient’s chart at the time of the examination. 2. Vacate the Interim Order. SUBMITTED this 27th day of March, 2000.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decisions and Orders of the Administrative Law Judge were mailed on March 27, 2000, for distribution to the parties, to:

Claudia Foutz Executive Director Arizona Board of Medical Examiners 1651 East Morten, Suite 210 Phoenix, Arizona 85020

George A. Schade, Jr. ----------------------- [1] Initials will be used here for confidentiality. [2] The Board retained ALJ Merkow. He was not an ALJ of the Office of Administrative Hearings. [3] The term “Respondent” in the Order of Probation is replaced here with “Dr. Patton.” [4] Patton v. Patton is the Utah domestic relations case between Dr. Patton and his former wife. [5] The plethysmograph is a physiologic measure and not a psychological test. [6] The hearing was video taped as part of that court’s transcription of judicial proceedings. The State obtained a copy of the video tape and prepared a verbatim transcript of the tape. The video tape and transcript were admitted as State’s Exhibits No. 1 and 2, respectively. The hearing began at 2:08 P.M. and ended at 3:34 P.M. [7] See Findings of Fact No. 31 and 38, adopted by the Board on February 3, 1999. [8] The Office of Administrative Hearings provides the professional expertise of full time administrative law judges with knowledge of the procedures for conducting disciplinary hearings. See A.R.S. Tit. 41, Ch. 6, Art. 10; Rules R2-19-101 through R2-19-122, supra. [9] A.R.S. § 41-1092.09(D) states, “Except as provided in this subsection, the agency head, executive director, board or commission shall rule on the motion within fifteen days after the response to the motion is filed or, if a response is not filed, within five days of the expiration of the response period. A self-supporting regulatory board shall rule on the motion within fifteen days after the response to the motion is filed or at the board's next meeting after the motion is received, whichever is later.” (Emphasis added.) [10] A.R.S. § 32-1451(L) states, “Any doctor of medicine who after a formal hearing as provided in this section is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a 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. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.” [11] This listing follows the sequential order of the Board’s Complaint. [12] A.R.S. § 41-1092.09(B) states in pertinent part, “A party to an appealable agency action of or contested case with a self-supporting regulatory board shall exhaust the party's administrative remedies by filing a motion for rehearing or review within thirty days after the service of the administrative decision that is subject to rehearing or review in order to be eligible for judicial review pursuant to title 12, chapter 7, article 6.” (Emphasis added.)

-----------------------

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