ALJDEC

99F-O12899-MDX · Board of Medical Examiners · 1999-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 23, 1999. APPEARANCES: John R. Hubbard, M.D., Applicant, appeared on his own behalf. Gordon Bueler, Assistant Attorney General, appeared representing the Board of Medical Examiners (“Board”). ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether the Board is justified in denying Applicant’s application for licensure. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Applicant held a license to practice medicine in the State of Arizona previously. On July 16, 1992, the Board placed Applicant on probation for a period of 2 years, commencing July 30, 1992. Subsequently, on June 21, 1994, Applicant entered into a Consent Order with the Board that canceled his license. 2. This matter arises out of Applicant’s application to obtain another license to practice medicine in Arizona. 3. On October 23, 1998, the Board denied Applicant’s application in light of its previous disciplinary action against Applicant, as well as the actions of numerous other state medical boards against Applicant. 4. The preponderance of the evidence establishes that the Board has disciplined Applicant in the past for alcohol abuse, failure to maintain adequate medical records, prescription for non-therapeutic purposes, and a violation of probation. 5. The preponderance of the evidence establishes further that a number of other state medical boards have either taken disciplinary action against Applicant or refused him a license. In one instance, the State Board for Professional Medical Conduct for the State of New York compelled Applicant to surrender his license in June 1985, in light of Applicant’s alcohol abuse. Subsequently, in 1995, Applicant surrendered his New York license for failure to respond to a request of the state medical board and a violation of probation. It is noteworthy, however, that the evidentiary record indicates that virtually all other actions by other state medical boards concerning Applicant are based upon the instant Board’s actions against Applicant’s Arizona license. 6. Applicant testified during the hearing in this matter that he has corrected and resolved his prior conduct that constituted grounds for the various disciplinary actions against him. In particular, Applicant testified that the state medical board for the State of Pennsylvania recently reinstated his license there. This assertion is uncontroverted by the Board here. Applicant also testified that no disciplinary action has been taken against him on any license since 1995 and that he has undergone alcohol abuse therapy. Applicant added that he has worked since 1994 overseas. Applicant’s testimony is largely uncontroverted and is found to be credible. 7. Focusing on Applicant’s professional record in Arizona, Applicant admitted during the hearing that he has never complied with the Board’s probation requirement that he attend and complete a one-month mini- residency in the pharmacological management of chronic pain. Applicant noted, however, that he did not comply with this requirement because he moved to Pennsylvania and engaged in a different practice.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1422(A) states, in part: An applicant for a license to practice medicine in this state pursuant to this article shall meet each of the following basic requirements:

4. Have a professional record which indicates that the applicant has not committed any act or engaged in any conduct which would constitute grounds for disciplinary action against a licensee under this chapter. 5. Have a professional record which indicates that the applicant has not had a license to practice medicine refused, revoked, suspended or restricted in any way by any state, territory, district or country for reasons which relate to his ability to competently and safely practice medicine.

Subsections B and C of §32-1422 add: B. The board may require the submission of such credentials or other evidence, written and oral, and make such investigation as it deems necessary to adequately inform itself with respect to an applicant’s ability to meet the requirements prescribed by this section, including a requirement that the applicant for licensure undergo a physical examination, a mental examination and an oral competence examination and interview, or any combination thereof, as the board deems proper. C. In determining if the requirements of subsection A, paragraph 4 have been met, if the board finds that the applicant committed an act or engaged in conduct that would constitute grounds for disciplinary action, the board shall determine to its satisfaction that the conduct has been corrected, monitored and resolved. If the matter has not been resolved, the board shall determine to its satisfaction that mitigating circumstances exist which prevent its resolution. D. In determining if the requirements of subsection A, paragraph 5, have been met, if another jurisdiction has taken disciplinary action against an applicant, the board shall determine to its satisfaction that the cause for the action was corrected and the matter resolved. If the matter has not been resolved by that jurisdiction, the board shall determine to its satisfaction that mitigating circumstances exist which prevent its resolution.

CONCLUSIONS OF LAW 1. The Board has jurisdiction over this matter under §32-1403. 2. Applicant has the burden of demonstrating by a preponderance of the evidence that the Board is unjustified in denying his application for licensure. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 3. The evidence reveals that Applicant has a professional record indicating that he has committed acts and engaged in conduct that constituted grounds for disciplinary action against him. A.R.S. §32- 1422(A)(4). The evidence also reveals that Applicant has a professional record indicating that he has had a license to practice medicine refused or restricted by other state medical boards for reasons that relate to his ability to competently and safely practice medicine. A.R.S. §32- 1422(A)(5). However, A.R.S. §§32-1422(C) and (D) require that the Board, in making a determination under either subsection (A)(4) or (A)(5), determine if an applicant corrected and resolved the prior conduct that constituted grounds for disciplinary actions. If a matter is unresolved, the Board is then required to determine if mitigating circumstances exist that prevent the matter’s resolution. Subsections (C) and (D) confirm, therefore, that having a record that falls short of the requirements of either subsection (A)(4) or (A)(5) is not a complete bar to licensure. Rather, the Board has discretion to issue a license, despite the existence of such a professional record, if the conduct in issue has been corrected or resolved, or if mitigating circumstances exist that prevent a resolution; indeed, subsections (C) and (D) of §32-1422 compel the Board to inquire into these issues and render consequential determinations. The record here is void of direct evidence of the Board’s inquiries or determinations under subsections (C) and (D). On the other hand, the record contains uncontroverted evidence that Applicant has corrected or resolved his prior conduct that constituted grounds for disciplinary actions, but for the probation requirement imposed by the Board in 1992. To the extent the Board’s case in this matter fails to go forward and offer credible evidence refuting Applicant’s contentions, the Board’s reliance on mere inferences of its determinations suggested by its licensure denial fails. Nevertheless, the matter of Applicant’s failure to complete the probation requirement that he attend and complete a one-month mini- residency in the pharmacological management of chronic pain is a matter not corrected or resolved that can be corrected or resolved.

RECOMMENDED DECISION In view of the foregoing, in particular, the unresolved matter of Applicant’s failure to complete the probation requirement that he attend and complete a one-month mini-residency in the pharmacological management of chronic pain, it is recommended to the Board that Applicants’ license application be denied, at least until this unresolved matter is corrected, resolved, or mitigating circumstances are found to exist that prevent a resolution. Done this day, May 6, 1999.

______________________________________ Kip M. Micuda Administrative Law Judge

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

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

By ___________________________

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

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