FILED STATE OF CALIFORNIA KAMALA MEDICAL …4patientsafety.org/documents/Smith, Brit O...

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KAMALA D. HARRIS Attorney General of California JUDITH T. ALVARADO Supervising Deputy Attorney General CHRISTINA L. SEIN Deputy Attorney General State Bar No. 229094

California Department of Justice 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-9444 Facsimile: (213) 897-9395

Attorneys for Complainant

FILED STATE OF CALIFORNIA

MEDICAL BOARD OF CALIFORNIA SACRAMENTo,-.:F:,, :1,aqf 12. 20 t7 By \' ~-~ -

t:) fe.4i • ttc:::~..<Jdr'( ANALYST

BEFORE THE 8

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MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS

STATE OF CALIFORNIA

11 In the Matter of the Accusation Against:

12 Brit 0. Smith, M.D. 44847 North lOth Street West

13 Lancaster, CA 93534

Physician's and Surgeon's Certificate No. A 16994,

Case No. 800-2015-014156

ACCUSATION

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Respondent.

18 Complainant alleges:

19 PARTIES

20 1. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official

21 capacity as the Executive Director ofthe Medical Board of California, Department of Consumer

22 Affairs (Board).

23 2. On or about June 30, 1956, the Medical Board issued Physician's and Surgeon's

24 Certificate Number A 16994 to Brit 0. Smith, M.D. (Respondent). The Physician's and Surgeon's

25 Certificate was in full force and effect at all times relevant to the charges brought herein and will

26 expire on July 31, 2018, unless renewed.

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(BRIT 0. SMITH, M.D.) ACCUSATION NO. 800-2015-014156

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JURISDICTION

3. This Accusation is brought before the Board, under the authority of the following

3 laws. All section references are to the Business and Professions Code unless otherwise indicated.

4 4. Section 2227 of the Code provides that a licensee who is found guilty under the

5 Medical Practice Act may have his or her license revoked, suspended for a period not to exceed

6 one year, placed on probation and required to pay the costs of probation monitoring, publicly

7 reprimanded, or such other action taken in relation to discipline as the Board deems proper.

8 5. Section 2234 of the Code, states in pertinent part:

9 "The board shall take action against any licensee who is charged with unprofessional

10 conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not

11 limited to, the following:

12 "(a) Violating or attempting to violate, directly or indirectly, assisting in or abetting the

13 violation of, or conspiring to violate any provision of this chapter.

14 "(b) Gross negligence.

15 "(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or

16 omissions. An initial negligent act or omission followed by a separate and distinct departure from

17 the applicable standard of care shall constitute repeated negligent acts.

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" .,,

6. Section 2242 of the Code states:

20 "(a) Prescribing, dispensing, or furnishing dangerous drugs as defmed in Section 4022

21 without an appropriate prior examination and a medical indication, constitutes unprofessional

22 conduct.

23 "(b) No licensee shall be found to have committed unprofessional conduct within the

24 meaning of this section if, at the time the drugs were prescribed, dispensed, or furnished, any of the

25 following applies:

26 "(1) The licensee was a designated physician and surgeon or podiatrist serving in the

27 absence of the patient's physician and surgeon or podiatrist, as the case may be, and if the drugs

28 were prescribed, dispensed, or furnished only as necessary to maintain the patient until the return

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of his or her practitioner, but in any case no longer than 72 hours.

"(2) The licensee transmitted the order for the drugs to a registered nurse or to a

licensed vocational nurse in an inpatient facility, and ifboth of the following conditions exist:

"(A) The practitioner had consulted with the registered nurse or licensed vocational

nurse who had reviewed the patient's records.

"(B) The practitioner was designated as the practitioner to serve in the absence of

the patient's physician and surgeon or podiatrist, as the case may be.

"(3) The licensee was a designated practitioner serving in the absence of the patient's

physician and surgeon or podiatrist, as the case may be, and was in possession of or had utilized

the patient's records and ordered the renewal of a medically indicated prescription for an amount

not exceeding the original prescription in strength or amount or for more than one refill.

"(4) The licensee was acting in accordance with Section 120582 ofthe Health and

Safety Code."

7. Section 2266 of the Code states: "The failure of a physician and surgeon to maintain

adequate and accurate records relating to the provision of services to their patients constitutes

unprofessional conduct."

8. Section 3501 of the Code states in pertinent part:

"(a) As used in this chapter:

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"(5) "Supervising physician" means a physician and surgeon licensed by the Medical

Board of California or by the Osteopathic Medical Board of California who supervises one or

more physician assistants, who possesses a current valid license to practice medicine, and who is

not currently on disciplinary probation for improper use of a physician assistant.

"( 6) "Supervision" means that a licensed physician and surgeon oversees the activities

of, and accepts responsibility for, the medical services rendered by a physician assistant.

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"( 1 0) "Delegation of services agreement" means the writing that delegates to a

physician assistant from a supervising physician the medical services the physician assistant is

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authorized to perform consistent with subdivision (a) of Section 1399.540 ofTitle 16 ofthe

California Code of Regulations.

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"(b) A physician assistant acts as an agent of the supervising physician when perfonning

any activity authorized by this chapter or regulations adopted under this chapter."

9. Section 3502, subdivision (a), of the Code states in pertinent part:

"(a) Notwithstanding any other law, a physician assistant may perform those medical services

as set forth by the regulations adopted under this chapter when the services are rendered under the

supervision of a licensed physician and surgeon who is not subject to a disciplinary condition

imposed by the Medical Board of California prohibiting that supervision or prohibiting the

employment of a physician assistant. The medical record, for each episode of care for a patient,

shall identifY the physician and surgeon who is responsible for the supervision of the physician

assistant."

14 10. California Code ofRegulations, Title 16, section 1399.541 states as follows:

15 "Because physician assistant practice is directed by a supervising physician, and a physician

16 assistant acts as an agent for that physician, the orders given and tasks performed by a physician

1 7 assistant shall be considered the same as if they had been given and performed by the supervising

18 physician. Unless otherwise specified in these regulations or in the delegation or protocols, these

19 orders may be initiated without the prior patient specific order of the supervising physician. In any

20 setting, including for example, any licensed health facility, out-patient settings, patients' residences,

21 residential facilities, and hospices, as applicable, a physician assistant may, pursuant to a delegation

22 and protocols where present:

23 "(a) Take a patient history; perform a physical examination and make an assessment and

24 diagnosis therefrom; initiate, review and revise treatment and therapy plans including plans for

25 those services described in Section 1399.541(b) through Section 1399.54l(i) inclusive; and record

26 and present pertinent data in a manner meaningful to the physician.

27 "(b) Order or transmit an order for x-ray, other studies, therapeutic diets, physical therapy,

28 occupational therapy, respiratory therapy, and nursing services.

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1 "(c) Order, transmit an order for, perform, or assist in the performance of laboratory

2 procedures, screening procedures and therapeutic procedures.

3 "(d) Recognize and evaluate situations which call for immediate attention of a physician and

4 institute, when necessary, treatment procedures essential for the life of the patient.

5 "(e) Instruct and counsel patients regarding matters pertaining to their physical and mental

6 health. Counseling may include topics such as medications, diets, social habits, family planning,

7 normal growth and development, aging, and understanding of and long-term management of their

8 diseases.

9 "(f) Initiate arrangements for admissions, complete forms and charts pertinent to the

10 patient's medical record, and provide services to patients requiring continuing care, including

11 patients at home.

12 "(g) Initiate and facilitate the referral of patients to the appropriate health facilities, agencies,

13 and resources of the community.

14 "(h) Administer or provide medication to a patient, or issue or transmit drug orders orally or

15 in writing in accordance with the provisions of subdivisions (a)-( f), inclusive, of Section 3 502.1 of

16 the Code.

17 "(i) ( 1) Perform surgical procedures without the personal presence of the supervising

18 physician which are customarily performed under local anesthesia. Prior to delegating any such

19 surgical procedures, the supervising physician shall review documentation which indicates that the

20 physician assistant is trained to perform the surgical procedures. All other surgical procedures

21 requiring other forms of anesthesia may be performed by a physician assistant only in the personal

22 presence of a supervising physician.

23 "(2) A physician assistant may also act as frrst or second assistant in surgery under the

24 supervision of a supervising physician. The physician assistant may so act without the personal

25 presence of the supervising physician if the supervising physician is immediately available to the

26 physician assistant. "Immediately available" means the physician is physically accessible and able

27 to return to the patient, without any delay, upon the request of the physician assistant to address

28 any situation requiring the supervising physician's services."

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(BRIT 0. SMITH, M.D.) ACCUSATION NO. 800-20I5-0I4156

1 11. California Code ofRegulations section 1399.545, subdivision (f), states in pertinent

2 part:

3 "(f) The supervising physician has continuing responsibility to follow the progress of the

4 patient and to make sure that the physician assistant does not function autonomously. The

5 supervising physician shall be responsible for all medical services provided by a physician assistant

6 under his or her supervision."

7 12. California Code ofRegulations section 1399.546 states:

8 "Each time a physician assistant provides care for a patient and enters his or her name,

9 signature, initials, or computer code on a patient's record, chart or written order, the physician

10 assistant shall also enter the name ofhis or her supervising physician who is responsible for the

11 patient. When a physician assistant transmits an oral order, he or she shall also state the name of

12 the supervising physician responsible for the patient."

13 13. Section 11217 ofthe California Health and Safety Code states:

14 "Except as provided in Section 11223, no person shall treat an addict for addiction to a

15 narcotic drug except in one ofthe following:

16 "(a) An institution approved by the State Department of Social Services and the State

17 Department of Health Care Services, and where the patient is at all times kept under restraint and

18 control.

19 "(b) A city or county jail.

20 "(c) A state prison.

21 "(d) A facility designated by a county and approved by the State Department of Social

22 Services pursuant to Division 5 (commencing with Section 5000) ofthe Welfare and Institutions

23 Code.

24 "(e) A state hospital.

25 "(f) A county hospital.

26 "(g) A facility licensed by the State Department of Alcohol and Drug Programs pursuant to

27 Division 10.5 (commencing with Section 11750).

28 "(h) A facility as defmed in subdivision (a) or (b) of Section 1250 and Section 1250.3.

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1 "A narcotic controlled substance in the continuing treatment of addiction to a controlled

2 substance shall be used only in those programs licensed by the State Department of Alcohol and

3 Drug Programs pursuant to Article 3 (commencing with Section 11875) of Chapter 1 ofPart 3 of

4 Division 10.5 on either an inpatient or outpatient basis, or both.

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FIRST CAUSE FOR DISCIPLINE

7 (Gross Negligence)

8 14. Respondent's license is subject to disciplinary action under section 2234, subdivision

9 (b), of the Code in that he committed gross negligence in his care and treatment of patients B.A.,

10 M.C., C.K., and H.T. 1 The circumstances are as follows:

11 15. At all times relevant to the charges herein, Respondent was a licensed physician and

12 surgeon with a solo family medicine practice that also employed a physician assistant. Respondent

13 was the supervising physician for the physician assistant.

14 16. The standard of care provides that the care and management of a patient with chronic

15 pain should include an initial physical examination and history sufficient to establish the patient's

16 symptoms, psychosocial assessment, screening for risk of drug abuse, previous evaluation,

17 previous treatment, and possible etiologies. Treatment involves medication, but only in

18 conjunction with further evaluation, non-phannacological interventions, and appropriate referrals.

19 When medications are prescribed, they should be in appropriate dose and quantity to treat

20 symptoms and to minimize the risk of dependency, abuse or drug diversion. While opioids are

21 sometimes necessary, other classes of medications (NSAIDs, antidepressants, anti-epileptics,

22 topical analgesics) should also be considered.

23 17. The standard of care requires that use of a physician assistant should be documented

24 by a delegation of services agreement confrrming appropriate supervision and authorized services.

25 The medical chart should clearly document which provider has seen a patient.

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28 1 The patients are identified by initial to protect their privacy.

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1 18. The standard of care is that HPV screening in a postmenopausal patient is an

2 important test for screening of cervical cancer. The appropriate evaluation of an abnormal HPV

3 screening test is colposcopy, especially ifthere is unexplained vaginal bleeding. Even if

4 colposcopy is negative, further evaluation is indicated for unexplained vaginal bleeding, especially

5 in a postmenopausal patient.

6 19. The standard of care provides that chronic and repeated prescriptions for Methadone

7 can be an appropriate treatment, but only as part of a structured and appropriately regulated

8 Methadone treatment program.

9 Patient B.A.

10 20. Patient B.A. was a long-time patient of Respondent. For the time period of

11 approximately August 22, 2012 to December 8, 2014, B.A., a then twenty-nine year-old male,

12 treated at Respondent's practice approximately 50 times. There is no evidence that a complete

13 physical examination was performed during this time frame. B.A.'s weight is recorded for many,

14 but not all visits, blood pressure is recorded on approximately 12 visits, and there is no

15 documentation of a physical examination in the notes or of an assessment. The plan includes

16 documentation of various medications prescribed during this time interval, including phentermine,

17 Norco, Xanax, Percocet and Ultram. Records show six prescriptions by Respondent for a total of

18 720 tablets of acetaminophen/ codeine, 2 prescriptions of Oxycodone for a total of 90 tablets, and 2

19 prescriptions for hydrocodone for a total of 270 tablets.

20 21. Respondent's treatment ofpatient B.A. includes the following acts and/or omissions

21 which constitute extreme departures from the standard of care:

22 a. There is insufficient documentation that B.A.'s symptoms were adequately

23 evaluated and that non-narcotic treatment alternatives were adequately considered.

24 b. The notes and medical record for B.A. do not indicate whether Respondent or

25 the physician assistant provided care for the patient at each encounter, and which provider was

26 authorizing prescriptions.

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1 Patient M.C.

2 22. Patient M.C., a then sixty-five year-old female, treated at Respondent's practice from

3 approximately October 10, 2012 through September 26, 2014. There are approximately 27 entries

4 in the medical record during this time frame. On December 9, 2013, the patient complained of

5 vaginal bleeding for three days. Treatment included Estrace, however, there is no documentation

6 of menstrual history or postmenopausal bleeding. The patient had an abnormal Pap smear on May

7 1, 2013 showing the presence ofhigh risk HPV DNA. The Pap smear was repeated on June 27,

8 2013 and high risk HPV DNA was not detected. Respondent prescribed to M.C. carisoprodol

9 four times for a total of 360 tablets and oxycodone one time for a total of 90 tablets. These

10 prescriptions were filled between September 2013 and January 2014, which coincide with onset of

11 shingles. There is no evidence oftreatment with antivirals or non-narcotic pain medications.

12 23. Respondent's treatment of patient M.C. included the following acts and/or omissions

13 which constitute extreme departures from the standard of care:

14 a. M.C. was prescribed hormone therapy without any determination of the cause of

15 the vaginal bleeding. Merely repeating the Pap smear is insufficient follow-up of the initial

16 abnormal result.

17 b. The notes and medical record for M.C. do not indicate whether Respondent or

18 the physician assistant provided care for the patient at each encounter, and which provider was

19 authorizing prescriptions.

20 Patient C.K.

21 24. Patient C.K, a then sixty-two year-old female, treated at Respondent's practice from

22 approximately October 28, 2011 through December 19, 2014. During this time period, there are

23 approximately 18 entries in the medical chart. The notes mention hip pain, leg brace, and at least

24 four visits for urinary complaints. Neither a physical examination, specific assessment, nor plan are

25 documented. An MRI report indicates low back pain, prior right hip surgery, and a prior history

26 of stroke. Respondent prescribed hydrocodone, zolpidem, hydrocodone, and lorazepam to C.K.

27 on multiple occasions.

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25. Respondent's treatment of patient C.K. includes the following acts and/or omissions

which constitute extreme departures from the standard of care:

a. There is insufficient documentation that C.K. 's symptoms were adequately

evaluated and that non-narcotic treatment alternatives were adequately considered.

b. The notes and medical record for C.K. do not indicate whether Respondent or

the physician assistant provided care for the patient at each encounter, and which provider was

authorizing prescriptions.

Patient H. T.

26. Patient H.T., a then twenty-six year-old female, treated at Respondent's practice from

approximately July 1, 2013 to November 21,2014. There are approximately 21 entries in the

medical chart during this time frame. H.T. was referred for continuing Methadone treatment.

There is no evidence in the records that she was enrolled in a structured opioid treatment program.

27. Respondent's treatment of patient H.T. includes the following acts and/or omissions

which constitute extreme departures from the standard of care:

a. There is no evidence that H.T. was enrolled in an appropriate Methadone

maintenance program. Although Respondent was an employee of a regulated Methadone center,

the prescriptions to H. T. were provided through his private practice, which is not an official

regulated Methadone maintenance program.

b. The notes and medical record for H. T. do not indicate whether Respondent or

the physician assistant provided care for the patient at each encounter, and which provider was

authorizing prescriptions.

28. Respondent's acts and/or omissions as set forth in paragraphs 20 through 27, above,

whether proven individually, jointly, or in any combination thereof, constitute gross negligence,

pursuant to section 2234, subdivision (b), of the Code. Therefore, cause for discipline exists.

SECOND CAUSE FOR DISCIPLINE

(Repeated Negligent Acts)

27 29. Respondent's license is subject to disciplinary action under section 2234, subdivision

28 (c), of the Code in that he committed repeated negligent acts in his care and treatment of patients

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1 B.A., M.C., C.K., and H.T. The circumstances are as follows:

2 30. The allegations of the First Cause for Discipline are incorporated by reference as if

3 fully set forth herein.

4 31. Respondent's treatment of patient M.C. includes the following act and/or omission

5 which constitutes a repeated negligent act: At times, treatment of shingles and post-herpetic

6 neuralgia with narcotic medication can be appropriate, however, alternatives to narcotic

7 medications should be considered. There is no evidence that M.C. was treated with antiviral

8 medication (e.g., Acyclovir or Valacyclovier) or that non-narcotic medication (e.g., Neurontin)

9 was considered.

10 32. Respondent's acts and/or omissions as set forth in paragraphs 30 through 31, above,

11 whether proven individually, jointly, or in any combination thereof, constitute repeated negligent

12 acts, pursuant to section 2234, subdivision (c), of the Code. Therefore, cause for discipline exists.

13 THIRD CAUSE FOR DISCIPLINE

14 (Inadequate Record Keeping)

15 33. Respondent's license is subject to disciplinary action under sections 2234, subdivision

16 (a), and 2266 ofthe Code in that he failed to maintain adequate records concerning the care and

17 treatment of patients B.A., M.C., C.K., and H.T. The circumstances are as follows:



20 35. Respondent's acts and/or omissions as set forth in paragraph 34, above, whether

21 proven individually, jointly, or in any combination thereof, constitute failure to maintain adequate

22 and accurate records, pursuant to section 2266 ofthe Code. Therefore, cause for discipline exists.

23 FOURTH CAUSE FOR DISCIPLINE

24 (Failure to Document Supervision of Physician Assistants)

25 36. Respondent's license is subject to disciplinary action under sections 2234, subdivision

26 (a), 2266, and 3502, subdivision (a), ofthe Code, and California Code ofRegulations, Title 16,

27 section 1399.546, in that Respondent was the supervising physician, however, the medical records

28 of patients B.A., M.C., C.K., and H.T. do not indicate whether Respondent or the physician

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1 assistant provided care for the patient at each encounter, and which provider was authorizing

2 prescriptions. The circumstances are as follows:




6 proven individually, jointly, or in any combination thereof, constitute failure to document

7 supervision of physician assistants in violation of sections 2266 and 3502, subdivision (a), ofthe

8 Code and California Code ofRegulations, Title 16, section 1399.546. Therefore, cause for

9 discipline exists.

10 FIFTH CAUSE FOR DISCIPLINE

11 (Prescribing Without Exam/Indication- Patients B.A., M.C., and C.K.)

12 39. Respondent's license is subject to disciplinary action under section 2242 of the Code,

13 in that Respondent prescribed controlled substances and/or dangerous drugs to patients B.A.,

14 M.C., and C.K. without an appropriate prior examination or medical indication therefor. The

15 circumstances are as follows:

16 40. Paragraphs 15 through 25 are incorporated by reference andre-alleged as if fully set

1 7 forth herein.


19 proven individually, jointly, or in any combination thereof, constitute prescribing without an

20 appropriate prior examination or medical indication, pursuant to section 2242 of the Code.

21 Therefore, cause for discipline exists.

22 DISCIPLINARY CONSIDERATIONS

23 42. To determine the degree of discipline, if any, to be imposed on Respondent,

24 Complainant alleges that on or about October 26, 2000, in a prior disciplinary action entitled In the

25 Matter of the Accusation Against: Brit Owen Smith, MD., before the Medical Board of California,

26 Case No. 11-98-91571, Respondent's license received a Public Letter ofReprimand related to his

27 care and treatment of a single patient, including requirements of a Physician Assessment and

28 Clinical Education Program and an ethics course. That decision is now fmal and is incorporated by

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reference as if fully set forth herein.

2 PRAYER

3 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

4 and that following the hearing, the Medical Board of California issue a decision:

5 1. Revoking or suspending Physician's and Surgeon's Certificate Number A 16994, issued

6 to Brit 0. Smith, M.D.;

7 2. Revoking, suspending or denying approval of Brit 0. Smith, M.D.'s authority to

8 supervise physician assistants, pursuant to section 3527 of the Code;

9 3. Ordering Brit 0. Smith, M.D., if placed on probation, to pay the Board the costs of

10 probation monitoring; and

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4. Taking such other and further action as deemed necessary and proper.

13 DATED: January 12, 2017

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Executive Directo Medical Board of California Department of Consumer Affairs State of California Complainant

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(BRIT 0. SMITH, M.D.) ACCUSATION NO. 800-20I5-014156

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