ALJDEC decisions subject to certification as final

FY18-201700156-DEN · Board of Dental Examiners · 2017-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Vincent Arthur Martinez, DDS

Holder of License No. D8889 for the Practice of Dentistry in the State of Arizona

No. FY18-[number redacted]-DEN

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 7, 2017 and September 8, 2017, with the record held open until September 22, 2017.

APPEARANCES: Respondent Vincent Arthur Martinez, DDS, appeared and was represented by Jeffrey J. Tonner. The Arizona Board of Dental Examiners was represented by Assistant Attorney General Mary DeLaat Williams.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Board of Dental Examiners (Board) has authority to regulate and control the practice of dentistry in the State of Arizona. The Board is charged with enforcing the provisions of the Dental Practice Act, A.R.S. § 32-1201 et seq.

Vincent Arthur Martinez, D.D.S., (Respondent) first experimented with cocaine in dental school. After graduating from dental school in 1990, Respondent began practicing dentistry in Silver City, New Mexico. Respondent was licensed by the New Mexico Dental Board in 1991. In 1997, Respondent’s New Mexico license was suspended for cocaine use. In 1998, Respondent’s New Mexico license was reinstated. In 1999, Respondent’s New Mexico license was again suspended for cocaine use. In 2000, Respondent voluntarily surrendered his New Mexico license and had to wait five years to reapply. In 2005, Respondent reapplied for his New Mexico license, which was granted with a 10 year probation. In 2007, Respondent’s New Mexico license was summarily suspended for cocaine use. Because Respondent did not want to go to treatment, he let his New Mexico license be revoked in 2008.

In 2009, Respondent moved to Tucson, Arizona. Respondent started working for a dental lab making dentures. At some point, Respondent considered getting his dental license in Arizona. After some research, Respondent discovered a description of the Board’s confidential Monitored Aftercare Treatment Program (MATP). Respondent decided that voluntarily enrolling in the MATP before seeking licensure was a show of good faith. Respondent participated in the MATP with Dr. Sucher for approximately 18 months.

On or about September 11, 2012, Respondent provided a urine sample for a drug screening that tested positive for cocaine metabolite and negative for all other chemicals. Dr. Sucher requested that Respondent submit a hair sample for a drug screening. Respondent refused to offer the hair sample, and instead terminated his voluntary participation in the MATP. Dr. Sucher opined that Respondent terminated his voluntary participation in the MATP to avoid providing a hair sample and confronting his cocaine use. Respondent denied that assertion and stated he terminated his voluntary participation in the MATP because of the cost of the program.

On February 10, 2014, the Board issued Dental License No. D8889 for the practice of dentistry in the State of Arizona to Respondent.

On February 19, 2014, Respondent entered into a Stipulated Rehabilitation Agreement (SRA) in which he agreed to participate in the Board’s Confidential MATP for a period of five years.

On or about November 24, 2014, Respondent provided a urine sample for a drug screening that tested positive for cocaine metabolite and negative for all other chemicals.

On or about June 8, 2015, Respondent provided a urine sample for a drug screening that tested positive for cocaine metabolite and negative for all other chemicals. Dr. Sucher requested a meeting with Respondent, but Respondent never met with Dr. Sucher. On June 26, 2015, the last day possible, Respondent offered a hair sample that tested positive for cocaine and alcohol. Respondent provided Dr. Sucher a letter from Banner University Medical Center stating that Respondent had undergone a surgery on his finger and tetracaine adrenaline cocaine was used as a topical anesthetic, which could conceivably result in a positive drug test. Dr. Sucher questioned the authenticity of the letter and discovered that the letter had been signed by a scheduling clerk rather than a medical professional and Respondent had not been seen at Banner University Medical Center since 2009, six years prior to the date of the positive drug screen.

In June 2015, Respondent came before the Board. Ultimately, Respondent attended in-patient treatment for 45 days at the Betty Ford Clinic. Respondent was released on August 20, 2015. Respondent maintained that he had not used any cocaine since June 8, 2015.

On October 8, 2015, Respondent entered into a confidential, non-disciplinary SRA with the Board in which he agreed to participate in the Board’s confidential MATP for a period of five years.

The SRA required Respondent to comply with the following terms:

Respondent shall submit to random biological fluid or hair sample testing performed by a Board-approved laboratory;

Respondent shall not consume alcohol or any food or other substance containing alcohol or poppy seeds;

Except in an emergency, Respondent shall take no medication unless prescribed by his primary care physician (PCP) or other health-care provider to whom the PCP refers Respondent. Respondent shall not self-prescribe any medication. Respondent shall notify the MATP Medical Director, Dr. Michel Sucher, in writing within 48 hours of a prescription being issued for controlled substances;

Respondent shall submit to mental, physical, and medical competency examinations at such times and under such conditions directed by Dr. Sucher to assist the Executive Director and Board staff in monitoring compliance with the terms of the SRA and Respondent’s ability to safely engage in the practice of dentistry;

Respondent shall obey all federal, state, and local laws, and all rules governing the practice of dentistry in Arizona; and

In the event of chemical dependency relapse by Respondent or his use of drugs or alcohol in violation of the SRA, Respondent shall promptly enter into an interim order for practice restriction that requires, among other things, that Respondent not practice dentistry until such time as he successfully completes long-term inpatient treatment for chemical dependency designated by Dr. Sucher and obtains affirmative approval from the Board or the Executive Director to return to the practice of dentistry, and that Respondent may be required to submit to witnessed biological fluid collection or to undergo any combination of physical examination, psychiatric, or psychological evaluation.

On July 13, 2017, Respondent was selected for a random urine drug screen. Respondent reported to FastMed Urgent Care, a Board-approved laboratory, to submit a sample. The form completed by Angela Kessler indicated no issues with the collection and was signed by her at 7:55 p.m., five minutes before the facility closed. Respondent signed the form under the statement, “I certify that I provided my specimen to the collector; that I have not adulterated it in any manner; each specimen was sealed with a tamper-evident seal in my presence; and that the information and numbers provided on this form and the label affixed to each specimen is correct.” Respondent reported at the hearing that he had observed a urine sample sitting on the counter in the area where the specimens are packaged and that the sample appeared orange like a “melted dreamcicle” that was consistent with his experience when he was actively using cocaine. Respondent was concerned that, after his sample was sealed and packaged, the employee took his excess sample in one hand and the orange colored excess sample in the other hand and took them into the bathroom to discard them both in the toilet.

On July 14, 2017, Respondent was selected for a random urine drug screen. Respondent reported to FastMed Urgent Care, a Board-approved laboratory, to submit a sample. The form completed by Brianna Marael did not indicate Respondent’s identity was verified and did not identify the collection site name and address. It was noted that the sample was collected at 6:30 p.m. Respondent signed the form under the statement, “I certify that I provided my specimen to the collector; that I have not adulterated it in any manner; each specimen was sealed with a tamper-evident seal in my presence; and that the information and numbers provided on this form and the label affixed to each specimen is correct.” During this collection, Respondent took a photograph of the area of the lab where the specimens are packaged.

On July 15, 2017, Respondent emailed Dr. Sucher’s assistant as follows:

I did speak with Brianna, [an] employee of two years at fast med yesterday about the open container of urine on the counter that I witnessed on Thursday. I asked what the protocol was. She stated that if there is a patient at the urgent care that they have taken urine from, it will remain on the counter until that patient is gone should they need to send it to a lab. She did say sometimes a previous drug screener will forget to throw the excess urine away. Wasn’t a big deal but she did assure me that I can ask that the other urines be removed while I am doing my testing. Just took me by surprise when I witnessed my Thursday drug screener throwing away my urine at the same time as the other urine that was left on the counter. Friday was much more comforting with professional and appropriate protocol. They were very receptive and professional.

On July 17, 2017, Respondent received acknowledgement from Dr. Sucher’s office that they had received Respondent’s travel request and he would not be required to call in or test from July 20, 2017, to July 26, 2017. Respondent’s travel request indicated he was going on a business trip with Dr. Watkins to Lake Powell.

On July 18, 2017, Respondent attended a relapse prevention group therapy with Dr. Joel Heerboth. Dr. Heerboth reported that at the session, Respondent was upset about collection procedures for his most recent drug screen. From what Dr. Heerboth could gather, Respondent’s concern was with the disposal methods at the very end of the process. Dr. Heerboth observed that other group members did not see how the issue Respondent raised would have impacted the chain of custody or led to any contamination issues. Dr. Heerboth noted that Respondent’s agitation about the drug screen was “uncharacteristic for him.”

Late on July 18, 2017, or early on July 19, 2017, Dr. Sucher received the lab results of the July 13, 2017 urine drug screen. The results were positive for the presence of cocaine metabolites and were negative for all other metabolites.

At 8:34 a.m. on July 19, 2017, Dr. Sucher’s assistant texted Respondent, “Please call Dr Sucher. He needs to speak to you. His number is [number redacted]. It is important.”

Respondent acknowledged that he received the text message, but chose not to respond. Rather, Respondent drove to Wilcox, Arizona to pick up his twin brother, who was driving his two children and Respondent’s youngest son from Albuquerque, New Mexico and had car trouble. After Respondent returned to Tucson, Arizona, he saw patients for approximately five hours.

At 7:42 a.m. on July 20, 2017, Dr. Sucher’s assistant texted Respondent, “Dr Martinez, Please call Dr Sucher at [number redacted].”

Respondent saw patients during the day on July 20, 2017. Respondent acknowledged that he received the text message, but chose not to respond. Respondent indicated he knew the messages meant that he would be required to do a hair test as a result of a positive urine drug screen. Rather than contacting Dr. Sucher to obtain instructions on how to accomplish this, Respondent used the form that he used for urine drug screens and went to FastMed Urgent Care to give a hair sample. According to the documentation later provided, Respondent gave a hair sample in Tucson, Arizona at 6:39 p.m. on July 20, 2017.

At 10:13 a.m. on July 21, 2017, Dr. Sucher’s assistant texted Respondent, “Dr Martinez. Please call Dr Sucher at [number redacted].”

On the morning of July 21, 2017, Respondent left Tucson, Arizona and went to Flagstaff, Arizona to begin his vacation. Respondent stayed in a hotel in Flagstaff, Arizona on the evening of July 21, 2017, and checked out on the morning of July 22, 2017.

On July 22, 2017, Respondent was supposed to check in to receive the houseboat at 8:00 a.m. Due to a flat tire, Respondent was delayed and the group set off on the houseboat around 11:30 a.m.

At 9:12 p.m. on July 22, 2017, Respondent sent an email to Dr. Sucher and Dr. Heerboth which provided as follows:

I noticed after I went to Albuquerque to pick up my children for vacation, Kristy had text[ed] me and asked me to call Dr. Sucher. Not sure exactly what it is about but can’t be anything good. I am sure Dr[.] Sucher was not calling to wish me well on my vacation or recognize my first two years of recovery.

I did consult one of my attorneys and on my way to the lake, as I do not expect to have service for the week here, I did a hair test with Dr. Sucher and Greenberg chain of custody form as seen in photos. It was done at the donation site of Fast Med at Cortaro per our recognized sights [sic] of donation. Please forward the results to me so that I can present them to my legal representatives Dr. Sucher.

As Joel knows, neither I nor some of my group members were happy with the way Kristy handled the crazy donation situation last Thursday. I never did hear back from her until she told me to call Dr. Sucher. I will be back from my approved vacation with my children late the 27th and [will] call you on the 28th Dr. Sucher.

My service has certainly been hit or miss driving to New Mexico and back and now boarding for four days of Lake Powell. Look forward to talking to you then. Thank you. Be well.

At 9:20 p.m. on July 22, 2017, Respondent sent an email to Dr. Sucher and Dr. Heerboth which provided as follows:

Had car trouble driving to Albuquerque to pick up my kids for vacation. My service was hit and miss but I [did] get a couple text messages from Kristy to call Dr. Sucher. Not exactly sure what it is about but I’m sure it can’t be anything real good?

After consulting one of my legal representatives, I decided to do a hair test with Dr. Greenberg and Sucher chain of custody form at one of our donation sites (Fast Med Cortaro). Please see enclosed. Please return the results to me so that I can consult with my legal representatives Dr. Sucher.

I will call you on the 28th when I am done with my vacation with my children which was approved through your office. Look forward to talking to you. Be well.

Attached to the emails was an image of the form indicating Respondent gave a hair sample in Tucson, Arizona, at 6:39 p.m. on July 20, 2017.

Respondent was on the houseboat with the group until the morning of July 24, 2017. Respondent arrived in Tucson, Arizona shortly after midnight on the morning of July 25, 2017. Respondent saw patients on July 25, 2017.

At 12:44 a.m. on July 28, 2017, Respondent sent an email to Dr. Sucher which provided as follows:

We have just arrived at our hotel in Page Arizona after 3 1⁄2 days at Lake Powell and then subsequent camping out. We have a 5 hour drive to Phoenix tomorrow at noon after checkout so that I can drop off my older son Shane to fly back to Albuquerque. I may have to transport my twin, his two sons, and my youngest son Isaac as their car is still broken down from the trip out here last week.

May I call you Sunday evening Dr Sucher? And Kristy, can you please set up this second hair test at Concentra for Monday?

Respondent testified that he erroneously indicated that he was at a hotel in Page, Arizona rather than in Phoenix, Arizona.

On July 31, 2017, 12 days after Dr. Sucher first asked that Respondent contact him regarding the positive drug screen, Respondent called Dr. Sucher. At that time, Dr. Sucher asked that Respondent provide a hair sample for a drug screening.

Dr. Sucher also asked Respondent to provide documentation to support his claim that he was unable to contact Dr. Sucher as requested due to poor cell phone service. In response, Respondent provided a confirmation of a houseboat rental indicating an arrival date of July 22, 2017, a confirmation of a jet ski rental indicating a rental period of July 22, 2017, to July 23, 2017, and an email regarding his recent stay at Sleep Inn in Flagstaff with a check out date of July 22, 2017.

On July 31, 2017, the Board offered Respondent a Confidential Stipulated Interim Order for Substance Abuse Evaluation/Treatment and Practice Restriction. Respondent was instructed that if it was not signed by Respondent and returned to the Board by August 4, 2017, the matter would be placed on the Board’s August 4, 2017 agenda and the Board would consider summarily suspending Respondent’s license to practice at that time.

On August 1, 2017, Respondent submitted a hair sample for drug screening.

On August 2, 2017, Respondent emailed the Board and attached an Affidavit of Vincent Martinez, DDS and Voluntary Declaration Not To Practice Dentistry.

On August 2, 2017, the Board emailed Respondent back and informed him that his unilateral avowal that he would not practice was not accepted by the Board and the matter would be placed on the Board’s August 4, 2017 agenda.

On the morning of August 4, 2017, Dr. Sucher obtained the results from the August 1, 2017 hair sample drug screening. The results were negative for cocaine metabolites and were negative for all other metabolites.

At the August 4, 2017 Board meeting, Dr. Sucher appeared telephonically, stated that it takes approximately two weeks for a drug to be detected in someone’s hair, and stated that the negative result from the hair test did not negate the positive urine drug screen from July 13, 2017. Dr. Sucher posited that Respondent did not use enough cocaine to be detected in a hair test. Based on Respondent’s positive urine drug screen, refusal to respond to Dr. Sucher’s multiple request for contact, and refusal to enter into an interim agreement not to practice dentistry and to obtain a substance abuse evaluation and subsequent treatment, if recommended, Dr. Sucher concluded there was a highly probable relapse of Respondent’s cocaine use disorder and that Respondent was not safe to practice dentistry.

Respondent’s counsel presented a letter signed by Dr. Watkins which provided as follows:

Dr. Vincent Martinez, his brother, my fiancé, I and our various children vacationed together on a houseboat on Lake Powell from Thursday, July 20, 2017 to Tuesday, July 25, 2017. Dr. Martinez was with me and the group the entire time. Please contact me with any questions.

Following the August 4, 2017 Board meeting, the Board issued Interim Findings of Fact and Conclusions of Law and Order for Summary Suspension of License.

On August 8, 2017, the Board issued a Complaint and Notice of Hearing to Respondent alleging Respondent had engaged in unprofessional conduct pursuant to A.R.S. § 32-1201.01(2), (14), and (22).

At hearing, Respondent offered the testimony of Frank LoVecchio, DO, who testified as to the efficacy of the urine drug screen versus the hair drug screening. Dr. LoVecchio stated that a hair drug screening is more accurate than a urine drug screen. Dr. LoVecchio testified that the negative hair drug screening in this matter “clearly exonerates” Respondent. Dr. LoVecchio stated that the literature does not support the conclusion that hair drug screening could be negative after a single use of cocaine. Dr. LoVecchio also questioned the chain of custody with respect to the July 13, 2017 urine drug screen. Based on Respondent’s testimony and that of Ms. Kessler, Dr. LoVecchio concluded that the instructions for completing the drug testing custody and control form were not properly followed, resulting in a void result. Dr. LoVecchio conceded that nothing on the form would have alerted Dr. Sucher to any issues with the sample collection, and that such an issue would only have been discovered by Dr. Sucher if he were to have a conversation with Respondent. Dr. LoVecchio stated that, in his experience performing drug screens for fire departments and police departments, after someone ignored three attempts for contact after a positive result, he would give up and provide the information he had available to the individual’s supervisor. Dr. LoVecchio also pointed out some deficiencies on the Custody and Control Form for the July 14, 2017 urine drug screen. Therefore, Dr. LoVecchio concluded that after throwing out the positive July 13, 2017 urine drug screen and the negative July 14, 2017 urine drug screen as void results, only the negative August 1, 2017 hair drug screening remained.

Dr. Sucher testified that he did not agree with the conclusions Dr. LoVecchio reached from the articles referenced. Dr. Sucher testified that he contacted the author of one of the articles who confirmed that his article’s conclusion was that hair drug screening was more accurate in assessing chronic cocaine use in employment settings as opposed to urine drug screen. Dr. Sucher noted that Respondent’s positive urine drug screen on July 13, 2017, was just over the screen cutoff for cocaine metabolite and opined that Respondent had waited as long as possible to provide the urine sample in the hopes that it would not show a positive result. Similarly, Dr. Sucher also posited that Respondent waited until the end of the day on July 14, 2017, in the hopes that his urine drug screen on that day would not show any cocaine metabolite. Dr. Sucher also noted that Respondent’s avoidance behavior following the July 13, 2017 urine drug screen was consistent with his behavior during earlier relapses.

CONCLUSIONS OF LAW

The Board has jurisdiction over Respondent and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A).

“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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 1120 (8th ed. 2004).

The Board may impose disciplinary action against a dentist for any unprofessional conduct as defined in section 32-1201.01. A.R.S. § 32-1263(A).

“Unprofessional conduct” includes, inter alia, using narcotic drugs; any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public; and failing to comply with a final board order, including an order of censure or probation. A.R.S. § 32-1201.01(2), (14), and (22).

The Board may summarily suspend a license if the Board finds that the public health, safety or welfare imperatively requires emergency action. A.R.S. § 32-1263.02(C). Hearings on such summary suspensions shall be promptly instituted and determined. A.R.S. § 41-1092.11(B).

"Contested case" means any proceeding in which the legal rights, duties or privileges of a party are required to be determined by an agency after an opportunity for an administrative hearing. A.R.S. § 41-1001(4). Contested cases must be set within sixty days of the agency’s request for a hearing. A.R.S. § 41-1092.05(A)(2).

“Appealable agency action" means an action that determines the legal rights, duties or privileges of a party and that is not a contested case. A.R.S. § 41-1902(3). Appealable agency actions must be set within sixty days of the licensee’s notice of appeal. A.R.S. § 41-1092.05(A)(1).

The weight of the evidence presented, including the positive July 13, 2017 urine drug screen, the facts that Respondent waited until 5 minutes before the facility closed that day to provide a sample, that Respondent overreacted to the manner in which the employee disposed of the excess sample on July 13, 2017, and that Respondent waited until late in the day on July 14, 2017, to provide a sample, established by a preponderance of the evidence that Respondent had used cocaine. Therefore, the Board established Respondent committed unprofessional conduct as defined by A.R.S. § 32-1201.01(2).

The weight of the evidence presented established by a preponderance of the evidence that Respondent’s use of cocaine was conduct that constituted a danger to the health, welfare, or safety of the patient or public. Therefore, the Board established Respondent committed unprofessional conduct as defined by A.R.S. § 32-1201.01(14).

The weight of the evidence presented established by a preponderance of the evidence that Respondent violated the SRA, in that he used cocaine. Therefore, the Board established Respondent committed unprofessional conduct as defined by A.R.S. § 32-1201.01(22).

Such conduct is grounds for discipline under A.R.S. § 32-1263(A)(1).

A.R.S. § 32-1263.01 provides as follows:

A. The board may take any one or a combination of the following disciplinary actions against any person licensed under this chapter:

1. Revocation of license to practice.

2. Suspension of license to practice.

3. Entering a decree of censure, which may require that restitution be made to an aggrieved party.

4. Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party.

5. Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

6. Imposition of a requirement for restitution of fees to the aggrieved party.

7. Imposition of restrictions on the scope of practice.

8. Imposition of peer review and professional education requirements.

9. Imposition of community service.

At hearing, the Board stated it was not seeking revocation of Respondent’s license, but was willing to extend the terms of the SRA for five additional years.

The Administrative Law Judge takes note of Respondent’s extensive falsehoods and refusal to respond to Dr. Sucher’s requests for contact following the July 13, 2017 urine drug screen. Respondent willfully ignored the text messages he received from Dr. Sucher’s assistant on July 19, 2017, July 20, 2017, and July 21, 2017, instructing Respondent to contact Dr. Sucher. Respondent sent two emails stating he drove to Albuquerque, had car trouble, and did not have cell service in New Mexico, when in fact, he only drove to Wilcox, Arizona, did not have car trouble, and never went to New Mexico. In those emails sent on the evening of July 22, 2017, Respondent stated he was just getting ready to board the houseboat that he had actually gotten on earlier that day. The letter Respondent obtained from Dr. Watkins indicated Respondent was at Lake Powell from July 20, 2017, through July 25, 2017, when in fact, Respondent drove to Flagstaff, Arizona on July 21, 2017, and returned to Tucson, Arizona on July 24, 2017. Respondent testified that he had never had a drug screen show a positive result for cocaine without also showing a positive result for alcohol because he always drank alcohol when he used cocaine, while the Board presented two earlier drug screen results that were positive only for cocaine.

Respondent’s repeated lies to the Board, failure to respond to Dr. Sucher, and failure to acknowledge any wrongdoing establish that Respondent is not regulatable at this time.

RECOMMENDED ORDER

Respondent’s License No. D8889 shall be revoked on the effective date of the Order entered by the Board.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, October 12, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Elaine Hugunin, Executive Director

Board of Dental Examiners