Friday 23 of Sep 2016, Faxination -> 21 Surinder...Friday 23 of Sep 2016, Faxination -> Page 3 of 21...

$Page 1: Friday 23 of Sep 2016, Faxination -> 21 Surinder...Friday 23 of Sep 2016, Faxination -> Page 3 of 21 Fi\.CTUAL FINDINGS 1. On May 5, 1980, the Board issued Physician's and Surgeon's$
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BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of the Petition for Interim Suspension Order:

KIMBERLY KIRCHMEYER, Executive Director, Medical Board of California,

Petitioner, vs.

SURINDER KUMAR UPPAL, M.D., Physician's and Surgeon's Certificate Number A 352534,

Res ondent.

Case No. 800-2015-014991

OAH No. 2016080683

Page 2 of 21

DECISION AND ORDER ON PETITION FOR INTERIM SUSPENSION

This petition for interim suspension order was heard before Karen J. Brandt, Administrative Law Judge, Office of Administrative Hearings (OAH), State of California, on September 9, 2016, in Sacramento, California. ·

Demond L. Philson, Deputy Attorney General, represented Kimberly Kirchmeycr, Executive Director (petitioner), Medical Board of Califomia (Board).

Ivan Petrzelka, Attomey at Law, represented Surinder Kumar Uppal, M.D., (respondent), who was prescnl.

Pmsuant to Government Code seclion 11529, on September 9, 2016, declarations and other documentary evidence were received, and oral argument was heard. The record remained open for the parties to submit death certificates and coroner's reports with regard to three deceased patients. On September 15, 2016, death certificates and coroner's reports were submitted, marked collectively as Exhibit P-4, placed under a protective order, and admitted into the record. The record was closed, and the matter was submitted for decision on September 15, 2016.

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Fi\.CTUAL FINDINGS

1. On May 5, 1980, the Board issued Physician's and Surgeon's Cerlificate Number A 352534 (license) to respondent. Respondent's license was in full force and effect at all times relevant to this proceeding, and will expire, unless renewed, on May 31,2018.

2. Petitioner seeks an interim suspension order (ISO) under Government Code section 11529 against respondent, alleging that respondent: (1) over-prescribed controlled substances and dangerous drugs in a grossly negligent manner, which contributed to the deaths of three patients; (2) fumished dangerous dmgs and/or controlled substances without an appropriate prior examination; (3) engaged in repeated acts of excessive prescribing; and (4) prescribed controlled substances and dangerous drugs to patients when he knew or should have known these patients would use the drugs for nonmedical purposes. Petitioner argued that respondent's actions constituted a violation of the Medical Practice Act and that permitting him to continue to practice until an accusation is filed and a decision is rendered. thereon would endanger the public health, safety and welfare.

Investigation by the Board

3. Respondent practices in Susanville, California. On or about July 15, 2015, the Doard received a complaint alleging respondent had over-prescribed pain killers to his patients. From August 31, 2015, to approximately Febmary 25, 2016, Board investigators gathered medical records and Controlled Substance Utilization Review and Evaluation System (CURES) reports relating to respondent's patients, including patients GN, CT, KM, RS and DF. This infonnation was reviewed by a medical consultant, who identified some of respondent's patients as having received questionable and suspicious medications. The Board investigator contacted lhe Lassen County Coroner's Officer (Lassen County), and asked if they had any overdose deaths related to respondent's prescribing. I ,ass en County provided information regaJ:ding three of respondent's patients- GN, CT .and KM- who had died, where the medications respondent prescribed were identified as contributing factors. Certified medical records and pharmacy profiles were obtained for respondent's patients. The Board's investigator interviewed witnesses and patients with regard to respondent's p1·escribing. On April 5, 2016, the Board's investigator interviewed respondent with regard to his treatment and prescribing for patients GN, CT, KM, BS and DF.

4. On April 19, 2016, the documents collected dming the investigation relating to respondent's treatment and prescribing for patients GN, CT, KM, BS and DF, together with the transcript of respondent's interview, were sent to Timothy Munzing, M.D., the Bomd' s expert. Dr. Munzing has been licensed by the Board to practice in California since January 1, 1983. He is board-certified in Family Medicine. He cunently practices as a Family Physician at Kaiser Permanente - Santa Ana. After reviewing the information provided by the Board's investigator, Dr. Munzing issued a 134-page Expert Review report dated May 5, 2016.

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Respondent's Care and Treatment of Patients GN, CT, KM, BS and DF

5. In his Expert Review report, Dr. Munzing described respondent's care and treatment of patients GN, CT, KM, BS and DF as reflected in respondent's medical records and respondent's interview with the Board. Summarized below are Dr. Munzing's findings with regard to these patients as set forth in his Expert Review report.

6. Patient GN. Respondent began taldng care of GN in 2003. GN had diabetes, high blood pressme, and used pain medications for a workers' compensation injury. Respondent's billing records indicated that respondent had 142 office visits with GN dming the eight years respondent treated him. Respondent prescribed Hydrocodone, Hydromorphone, Fentanyl, and Clonazepam to GN. Dr. Munzing identified the following "red flags" for abuse, addiction or diversion with regard to respondent's treatment of GN over the period from 2005 to 2011: (1) in 2005 and 2006, GN refused a urine drug screen on tlu·ee occasions; (2) GN drank alcohol excessively and considered suicide on one occasion; (3) in 2006, GN ran out of morphine early; (4) in 2006 and 2009, GN reported that his medications had been stolen; and (5) in 2011, GN reported that his trailer was flooded and he needed his medications replaced. Dr. Munzing identified the following red flags for prescribing with regard to GN: (1) his MED Max (mg/day) was greater than 1,6001

; (2) he saw multiple doctors; (3) he obtained his medications from multiple pharmacies; and (4) he sought early refills.

7. Patient CT. CT was injLU·ed in an occupational accident. Respondent prescribed Hydrocodone, Morphine, Clonazcpam, Zolpidem, and Carisoprodol (Soma) to CT. Dr. Munzing identified the following "red flags" for abuse, addiction and diversion with regard to respondent's treatment of CT during 2010 and 2011: (1) at CT' s first visit with respondent on December 19, 2011, CT reported that she had losl her medications; (2) on July 12, 2012, CT took more medications than prescribed; (3) in August 2012, CT used three concmrent muscle relaxants plus opioid medications; (4) on October 15, 2012, CT soughl an early refill of her medications; and (5) in December 2012, CT was admitted to the emergency room after she overdosed on Soma and Clonazepam. Dr. Munzing identified the following red flags for prescribing with regard to CT: (1) herMED Max (mg/day) was 188; (2) she was prescribed opioids, benzodiazepines and Carisoprodol concurrently; and (3) she sought early refills.

8. Patient KM. KM sustained a work injury in 2001. Dr. Munzing's report addressed respondent's treatment of KM beginning in 2008. Respondent prescribed Oxycodone, Fentanyl, Alprazolam, Zolpidem, and Cmisoprodol to KM. Dr. Munzing identified the following "red flags" for abuse, addiction and diversion with regard to respondent's treatment of KM from 2008 to 2014: (1) in 2008, KM reported feeling "groggy"; (2) in 2009, KM's medications were increased multiple times; (3) in2012, KM requested two early refills; (4) in 2013, KM experienced multiple falls; and (5) on Janumy 1,

1 "MED" stands for Morphine Equivalent Dosing (sometimes called MMEMorphine Miliequivalents). Dr. Munzing used a 100 mg/day threshold.

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2014, KM was admitted to the hospital for a dmg overdose. Dr. Munzing identified the following red flags for prescribing with regard to KM: (1) her MED Max (mg/day) was greater than 300; (2) she was prescribed opioids, benzodiazepines and Cm·isoprodol concurrently; (3) she obtained her medications from multiple phmmacies; and (4) she sought em-ly refills.

9. Patient BS. Respondent treated BS for foot, ankle and hack pain. Respondent's billing records for the period of May 2008 through December 2013 indicated that BS had 88 visits with respondent. Respondent prescribed Hydrocodone, Oxycodone, and Fentanyl to BS. Dr. Munzing identified the following "red flags" for abuse, addiction or diversion with regm-d to respondent's treatment of BS over the period from Janumy 29, 2008, to June 1, 2014: (1) on multiple occasions in 2008 and 2010, BS requested em·ly refills or increased medications; (2) in 2008, BS was lethargic; (3) in 2008, BS reported that his drugs had been t1ushed down the toilet; (4) in 2011m1d 2012, BS reported that his medications had been lost or stolen; and (5) in 2014, BS had an abnormal urine drug screen in which amphetamine was found. Dr. Munzing identified the following red flags for prescribing with regard loBS: (1) his MED Max (mg/day) was 440; and (2) he sought em-ly refills.

10. Patient DF. Respondent began treating DF in 2004, primarily for plantm· fasciitis. 'When DF came to see respondent, she was taking Methadone. Respondent gradually weaned DF oH Methadone. Respondent prescribed Hydrocodone, MethadonD, and Oxycodone to DF. Dr. Munzing identified the following red flags for prescribing with regm-d to DF: (1) her MED Max (mg/day) was 500; and (2) she sought early refills.

Deaths oj'Patients GN, CT and KM

11. As reflected in the death certificates and coroner's reports:

(a) Patient GN died on August 19,2011, at the age of 51. As set forth in the coroner's report, the medical examiner opined that GN died "due to acute drug toxicity due to fentanyl. Other conditions include cm-diomegaly with arteriosclerotic and hypertensive cm·diovascular disease and abnormal vitreous electrolyte studies."

(b) Patient CT died on January 20, 2013, at the age of 44. As set forth in the coroner's report, the medical examiner opined that CT died "duo to multiple drug intoxication due to hydrocodone, cyclobenzaprine, doxylamine, and others. Other conditions include cardiomegaly, obesity and hepatic steatosis."

(c) Patient KM died on April12, 2014, at the age of 53. As set forth in the coroner's report, the medical examiner opined that KM died "due to oxycodone intoxication wiLh olher significant finding: cm·diomegaly."

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Opinion of Board's Expert

12. Dr. Munzing executed a Declaration dated August 16, 2016. As set forth in his Decimation, from a review of the information he received regmding patients GN, CT and KM, Dr. Munzing found that these three patients all had toxic levels of controlled substances in their blood at the time of their deaths. Dr. Munzing opined that respondent's care and treatment of these patients represented an extreme departme from the standmd of care, and excessive prescribing of controlled substances and dangerous drugs without adequate examinations or follow-up monitoring of their health.

13. Dr. Munzing also opined as follows with regard to respondenl's cam and treatment of patients GN, CT, KM, BS and DF:

(a) Respondent failed to "accomplish [a] medical histmy and physical examination," including assessing the patients for pain, and physical and psychological function, a substance abuse histmy, a histmy of prior pain treatment, an assessment of diseases and conditions, and a documentation of the presence of a recognized medical indication for the use of controlled substances, which represented an extreme depmture from the standard of care for patients CT and GN, and a simple departure from the standard of cme for patients DF, BS, and KM.

(b) Respondent failed to "have a treatment plan and management goals," which represented an extreme departme from the standard of care for patients CT, BS, KM and GN, and a simple departure from the standard of cme for patient DF.

(c) Respondent's failed to obtain informed consent regmding the risks and benefits of using controlled substances and other treatment modalities, which represented a simple depmture from lhe slandm·d of care for patients DF, CT, BS, KM, andGN.

(d) Respondent's patient records were inadequate, which represented an extreme depmtme from the standard of care for patients CT, KM and GN, and a simple departure from the standard of care for patients DF and BS.

(e) Respondent's failme to conduct ongoing monitoring when prescribing controlled substances represented an extreme departme from the standard of care for patients BS, KM and GN, and a simple departure from the standmd of care for patients DF and CT.

(f) Respondent presc1ibed opioids/controlled substances in excess of the amount documented to be medically justified based on histmy, exam, and other evaluation such that it constituted excessive treatment, which represented an extreme departure from the standard of cm·e for patients KM and GN, and a simple depmture from the standard of care for patients DF, CT and BS.

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(g) Respondent failed to periodically review the course of pain treatment to

determine whether the patients were maldng progress with appropriate modifications, which represented an extreme departure from the standard of care for patients CT, BS, and GN, and a simple departure from the standmd of care for patients DF and KM.

(h) Respondent failed to consult with outside physicians on pain management and addiction issues, which represented a simple departme from the standard of care for patient DF.

(i) Respondent failed to document in the patients' medical records that he discussed the risks and benefits of using controlled substances and other treatment modalities, which represented an extreme departme from the standard of care for patients CT, KM and GN, and a simple departure from the standard of care for patients DF and BS.

G) Respondent failed to adequately document in the patients' medical records that he followed the same standard of care when prescribing narcotic controlled substances to known addicts, which represented an extreme departure from the standard of care for patients CT, BS, KM. and GN.

Respondent's Evidence and Expert Opinions

Changes Respondent has Madere: Prescribing Controlled Substances

14. On June 3, 2016, respondent wrote to the Bomd to explain the changes he had made to his practice since his April5, 2016 Bomd interview. In summmy, the changes he described in his June 3, 2016letter were as follows:

(a) Respondent recognized that, in the past, some of his patients "inadvertently received two similar drugs." To prevent this from reoccuning, respondent was "informing all patients that all medications are to be filled at the time of visit and that the prescribed amount must last until the next visit." In addition, "all prescribed drugs are now recorded onto a flow sheet to avoid inadvertent therapeutic duplication."

(b) Respondent recognized that, in the past, some of his patients received high dose opioid therapy to alleviate chronic, intractable pain. Respondent had begun to follow "the cunent CDC Guidelines for Prescribing Opioids for Chronic Pain for patients who are being initiated on opioid therapy and patients with past history of high-dose opioid therapy are being tapered toward the levels provided for by the CDC Guidelines."2 Most of respondent's patients were receiving doses lower than 50 mg of IviED per day, and his objective was to transition all chronic patients to be within

2 "CDC" stands for Centers for Disease Control and Prevention.

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this dose within three months. Respondent stated that his practice was "dedicated to st1ict adherence" to the CDC Guidelines. Furthermore, he was "routinely" recommending nonpharmacological treatment modalities to his patients in lieu of opioid therapy. He was also "actively" educating his patients on the risks of opioid therapy.

(c) Respondent had hired additional staff to transcribe his notes. He was no longer copying and pasting prior entries. He had implemented a new dictation guideline following the SOAP format. 3

(d) Respondent had implemented a new tracking tool to avoid patients scheduling visits earlier than the recommended timeframes in an effort to obtain additional medication.

15. Respondent submitted to the Board a Protocol for Chronic Pain and Its Management and a Patient Pain Management Agreement and Consent that he had implemented. According to respondent, the new pain management protocol was implemented in strict conformance with the latest CDC Guidelines on the use of opioids when managing chronic pain. This protocol included strict adherence to pain management agreements. Respondent had incorporated into his practice the routine use of CURES data when prescribing controlled substances. He had also incorporated routine screenings for signs of addiction and/or drug abuse, and mine drug screening for patients receiving controlled substances. In addition, respondent was monitoring his patients for adherence to prescribed therapeutic regimens and for any signs of potential diversion, such as requests for early refills of controlled substances.

16. Between April23 and July 1, 2016, respondent took 17.5 hours of continuing medical education (CME) comses focused on chronic pain management and related areas of medical ptactice. Respondent has engaged the assistance of a specialist in musculoskeletal diseases to obtain additional hands-on training in this area of practice.

17. In a shift away from pain management in his medtcal practice, respondent has recently ceased prescribing Schedule II narcotic drugs and, on August 30, 2016, modified his Drug Enforcement Administration (DEA) registration accordingly. Under his modified DEA registration, respondent is not permitted to prescribe narcotic controlled substances listed in Schedule II. 4

3 "SOAP" stands for subjective, objective, assessment, and plan.

''Examples of Schedule II narcotic dmgs listed on the DUA' s website include: "hydromorphonc (Dilaudid®), methadone (Dolophine®), meperidine (Demcrol®), oxycodone (OxyContin®, Pcrcocet®), and fentanyl (Sublimaze®, Duragesic®). Other Schedule II narcotics include: morphine, opium, codeine, and hydrocodone." (http://www.dcadiversion.usdoj.gov/schedules/index.html.)

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Respondent's Expert Opinions and Character Reference

18. Respondent submitted a declaration from Khyber Zaffarkhan, D.O. He also submitted letters from four other doctors: Vincent Natali, M.D., John Dozier, M.D., George Barakat, M.D., and David Beckwith, M.D. In addition, respondent submitted a letter in support from Jim Chapman, Supervisor, District 2, Lassen County Board of Supervisors.

19. Khyber Zaffmkhan, D.O. Dr. Zaffarkhan is licensed to practice in California. He is board-certified in Physical Medicine and Rehabilitation. He is the Medical Director of the Regenerative Institute of Newport Beach, where he specializes in the management of acute and chronic musculoskeletal pain. Dr. Zaffarkhan reviewed the charts of patients GN, CT, KM, BS and DF. Dr. Zaffarkhan also reviewed Dr. Munzing's expert report and declaration. In addition, Dr. Zaffarkhan reviewed several cunent charts from respondent's practice to compare his past and present medical practices, and documentation of various changes that respondent implemented in his medical practice within the last 18 months. Based on this review, Dr. Zaffarkhan concluded that respondent's "past practices were somewhat deficient in the areas of record keeping and utilization of opioids for management of chronic pain." But Dr. Zaffarkhan's "review also demonstrated significant changes in [respondent's] medical practice in the previously deficient areas, pmticularly in the area of opioid utilization." Based on Dr. Zaffarkhan's evaluation of respondent's current practices, Dr. Zaffarkhan opined that: (1) respondent is able to safely continue the practice of medicine; and (2) respondent's current medical practice does not pose a threat to public health and safety.

20. Dr. Zaffarkhan opined as follows with regard to respondent's care and treatment of patients GN, CT, KM, BS and DF:

(a) GN. Dr. Zaffarkhan opined that respondent's cm·e and treatment of GN represented a simple departure from lhe standard of care. Dr. Zaffmkhan found in respondent's chart notes that respondent documented GN' s ongoing reaction to medications and "significant portions" of GN' s medical history. Dr. Zaffmkhan also found a discussion of a treatment plan, including contracts that were signed, periodic reviews of reactions to medications and treatment, and a discussion of fmther anlde surgery. Consequently, Dr. Zaffarkhan opined that respondent's failures to accomplish a medical history and physical examination, develop a treatment plan and management goals, and keep accurate and complete records constituted simple departures from the standm·d of care. Dr. Zaffmkhan agreed that respondent "failed to perfonn proper monitoring in prescribing controlled substances on multiple occasions," but believed lhat each of these occasions represented a simple depmture from the standard of care. Dr. Zatfarkhan acknowledged that respondent's medical examination of GN was "inadequate," but the "medical diagnoses and records of treatments and medication were recorded," so Dr. Zaffarkhan opined that respondent's conduct in this regard represented a simple depmture from the standru:d of care. But Dr. Zaffmkhan opined that respondent provided excessive treatment with

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opioids/controlled substances to GN, which represented an extreme departme from the standard of care.

(b) CT. Dr. Zaffarkhan opined that respondent's care and treatment of CT represented an extreme departure from the standmd of cme. But Dr. Zaffarkhan found that respondent documented many discussions with CT regarding use of nonnarcotic treatments and reduction of medications, and agreements that she would not use certain medications. Consequently, Dr. Zaffarkhan opined that respondent's failures to accomplish a medical history and physical examination, develop a treatment plan and management goals, keep accurate and complete records, and pe1iodically review the course of pain treatment with CT represented simple departures from the standard of care. Dr. Zaffarkhan acknowledged that respondent's medical examination of CT was "inadequate," but the "medical diagnoses and records of treatments and medication were recorded," so Dr. Zaffadchan opined that respondent's conduct in this regard represented a simple departure from the standard of care.

(c) KM. Dr. Zaffmkhan opined that respondent's prescribing of controlled substances to KM represented a simple departure from the standard of care. Dr. Zaffmkhan found in the chart periodic reviews of reactions to medications and treatment. Consequently, Dr. Zaffarkhan found that respondent's failure to keep accurate and complete records represented a simple departure from the standard of care. Dr. Zaffarkhan agreed that respondent "failed to perform proper monitoring in presclibing controlled substances on multiple occasions," but believed that each of these occasions represented a simple departure from the standard of care. Dr. Zaffmkhan acknowledged that respondent's medical examination of KM was "inadequate," but the "medical diagnoses and records of treatments and medication were recorded," so Dr. Zaffarkhan opined that respondent's conduct in this regard represented a simple departure from the standard of cme. But Dr. Zaffarkhan opined that respondent provided excessive treatment with opioids/controlled substances to KM, which represented an extreme departure from the standard of care.

(d) l3S. Dr. Zaffarkhan found that respondent's chart for BS included "summaries that elements of treatment plans were discussed." Consequently, Dr. Zaffarkhan opined that respondent's failure to have a treatment plan and management goals for BS represented a simple departure from the standard of care. Dr. Zaffarkhan agreed that respondent "failed to perform proper monitoring in prescribing controlled substances on multiple occasions," but believed that each of those occa~ions represented a simple departure from the standard of care. Dr. ZaJfarkhan acknowledged that respondent's medical examination of RS was "inadequate," but the "medical diagnoses and records of treatments and medication were recorded," so Dr. Zaffarkhan opined that respondent's conduct in this regard represented a simple depmture from the standard of care.

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21. Dr. Zaffarkhan stated that Dr. Munzing's conclusions about respondent's high Morphine equivalent dosing, exceeding 100 mg per day, was a guideline applicable today in light of the recently issued CDC Guidelines. Dr. Zaffarkhan stated fmther that most of respondent's questionable conduct "occurred years before these ceilings were commonplace, and applying today' s guidelines to previous presc1ibing habits are not applicable in this situation." Dr. Zaffarkhan also noted the steps respondent has recently taken to reduce his documentation errors, improve his record keeping, implement pain management protocols, and recognize red flags with prescdbing opioids. Dr. Zaffarkhan found, however, that "it does not appear that [respondent] is currently able to perform or document proper musculoskeletal examinations for the management of a typical chronic pain patient and far more work needs to be done in this department." In addition to respondent's voluntarily relinquishing his DEA authority to presCiibe Schedule II narcotics, Dr. Zaffarkhan recommended that respondent "further increase his physical examination skills and documentation skills if he wishes to continue to treat chronic pain patients." Dr. Zaffarldmn also recommended that respondent "be more adamant about refcning chronic pain patients [to] a pain management provider. .. " But, in sum, Dr. Zaffarkhan opined that given the current changes in respondent's practice and the "fact that he can no longer prescribe many of the medications that were subject to the depmtures from the standards of care," Dr. Zaffarkhan believes that respondent is not a threat to the public and that his suspension would be "detrimental to the access to care of the local community that is already underserved."

22. Vincent Natali, M.D. Dr. Natali is a board-certified family physician, who has been licensed to practice since 1976. He currently practices in Westwood, California, in a federally-qualified rural health clinic under the management of Northeastern Rural Health Clinics. The majority of Dr. Natali's patients are being treated for chronic pain. Dr. Natali is "well aware" of the "difficulty of treating patients with intractable pain against the dangers of prescribing medications with the potential of harm or even death." Dr. Natali reviewed respondent's "past medical records," including those reviewed by Dr. Munzing. Dr. Natali's review "revealed some deficiencies in [respondent's] record keeping and some depmtures from [the] standm·d of care related to the management of chronic pain in the past."

23. But Dr. Natali also found that respondent "recently implemented sweeping changes in his practice, specifically in the area of record keeping, documentation of patient visits, tracking of prescribed medication, and monitoring patients' progress towm·d established treatment goals. Dr. Natali noted that respondent's most important change was with regard to pain management, by revising his pain management protocol to "striclly adhere to the recently published pain management guidelines and significantly reduce the use of opioids in his practice," and "strict monitming of his palients for signs of abuse and potential diversion of controlled substances." Dr. Natali further noted respondent's most recent decision to completely stop prescribing Schedule II narcotics. Dr. Natali reviewed several of respondent's current charts and found that they were "very well documented and consistent with the current standard of care applicable to general practitioners."

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24. Dr. Natali believes that respondent does not pose a danger to the public and that respondent "diligently and selflessly provides the much needed medical care to patients in our underserved mea." Dr. Natali believes fmther that it "would be a severe hmdship to the people of this area and the medical community to have [respondent] completely removed from the practice of medicine."

25. John Dozier, M.D. Dr. Dozier is licensed to practice in California. He is a bomd-certified family medicine physician. Dr. Dozier has known respondent since Dr. Dozier began practicing medicine in Susanville 33 yems ago. Dr. Dozier reviewed the charts of the five patients at issue in this matter. He provided emergency medical care on at least one occasion to one of these patients, and is now the primary cme physician for another one. According to Dr. Dozier, all five of these patients suffered or are continuing to suffer from multiple medical problems, including chronic pain. From Dr. Dozier's review, in all these cases, it appeared that respondent "was attempting to follow the standmd of care which is to relieve suffedng and pain wherever possible." Dr. Dozier found that, although "there were some departmes from the usual standmd of cam in the management of these patients," he believes that these depmturcs "were simple departures only." He noted the changing philosophy over the use of opioids in managing chronic pain that has occmred over time.

26. Dr. Dozier noted that respondent is "a pediatrician who practices in the mea of family medicine." Respondent "is not a pain management specialist nor axe there any pain management specialists practicing in our community." According to Dr. Dozier, their "patients have very few local options for dealing with their chronic pain conditions other than receiving medications from their primary care providers."

27. Dr. Dozier reviewed respondent's present practices in the management of chronic pain patients. Dr. Dozier believes that respondent has "become much more rigorous in terms of recordkeeping, the monitoring of his patients' medications as well as controlling the amounts of medication that he prescribes to his palients." Dr. Dozier noted respondent's current me of the drug monitoring program provided by the state, pain management contracts, and regular urine drug screens. Due to the significant changes respondent has made in his practice, Dr. Dozier believes that respondent does not pose a danger to his patients. Because their community is underserved in terms of the number of primm)' cme physicians, Dr. Dozier believes that the loss of respondent's ability to provide medical care to their community would have a significantly adverse effect on their community's health.

28. George Baralcat, M.D. Dr. Bmakat is an orthopedic surgeon who practices in Susanville. He has known respondent for 31 yems. Dr. Barak:at opposes the suspension of respondent's license. Dr. Bmakat believes that respondent is "an asset to [the] local community as well as [the] medical community." Dr. Bmakat also believes that closure of respondent's practice. would be "very detrimental to om underserved mea," because they "already do not have [an] adequate number of primary cme provider[s]." And it would be "particularly detrimental" to Dr. Bmakat' s practice because he often needs primm·y cm·c physicians to help him with "pre-op care, assist on surgery, [and assist with] post-op care."

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29. Respondent disclosed to Dr. Barak:at the circumstances that led to the Board's investigation. Respondent also shared with Dr. Baralmt the "extensive changes" he has made in his practice, "particularly in the areas of documentation of patient visits, pl1ysical examination, treatment plans and pain management protocol." Dr. Barakat opined that, "[w]hile [respondent's] practice may have been deficient in certain areas in the past, my recent review of his current practice leads me to firmly believe that he does not pose a danger to the public." According to Dr. Baralmt, "[s]uspension of [respondent's] license will only worsen the current shortage of general practitioner[s] in our already underserved area without providing any benefit to the community."

30. David R. Beckwith, M.D. Dr. Beckwith is in private general practice in Susanville. In his August 30, 20161etter, Dr. Beckwith stated that he was "intimately acquainted with the quality of healthcare and the quality of life in general in our small community." Dr. Beckwith asserted that physicians had received "tremendously contradictory recommendations regarding pain management over the past 15 years." After reviewing the relevant records relating to respondent's patients, Dr. Beckwith opined that, "[w]hile [respondent's] record keeping may not have been the best, he has simply acted in a compassionate way to relieve suffering." Dr. Beckwith has "seen documentation that [respondent] has improved his record keeping and developed pain management plans in accordance with current recommendations." ln addition, respondent has spoken to the Rotary Club about the dangers of prescription narcotics. Dr. Beckwith believes that respondent is not a threat to their local population, and losing him "would be a tremendous blow to our underserved rural community."

31. Jim Chapman. Mr. Chapman is a supervisor on the Lassen County Board of Supervisors. He wrote a letter dated September 7, 2016, in support of respondent. Mr. Chapman has known respondent for more than 35 years. According to Mr. Chapman, for these 35 years, respondent has been an "active and contributing member t>f the community." Respondent has been Mr. Chapman's personal physician during thi::; time. Mr. Chapman believes that if respondent's practice were curtailed, "a lot of people would suffer."

Discussion

32. Respondent filed an opposition to petitioner's ISO petition. In his opposition, respondent argued that the petition should not he granted for the following reasons: (1) in reaching his opinion, Dr. Munzing retroactively applied the standard forMED that was published by the CDC in 2016 to respondent's prescribing that occurred between 2005 and 2015; (2) petitioner's review of respondent's practice was limited to five patients who were selected solely because they received relatively high doses of opioids for treatment of chronic pain, without examining a representative sample of respondent's patients or his cmrent medical practices; (3) the opinions ofrcspondent's five experts should be accepted over the opinion of Dr. Munzing, because they evaluated respondent's current medical practice and considered respondent's extensive mitigation and remediation efforts; (4) because Susanville does not have sufficient primary care physicians to serve its population, suspending respondent's license will cause harm to this underservcd community; and (5)

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there are remedies available other than fully suspending respondent's license that would adequately protect the public health, safety and welfare until an accusation is filed and a decision is rendered thereon.

33. Applicable Standmd of Care. The depmtures from the standard of care found by Dr. Munzing occurred between 2005 and 2015. The primary focus of his concerns involved patient GN, who died in 2011, CT, who died in 2013, and KM, who died in 2014. In reaching his opinions, Dr. Munzing, in his expert report, referred to the Bomd's 2014 Guidelines, and the CDC's 2016 Guidelines with regard to prescribing controlled substances. Although Dr. Munzing referred to guidelines issued after the majority of respondent's alleged depmtures from the standmd of care occuncd, Dr. Munzing made clear in his report that the Board has had guidelines in place since 1994. As Dr. Munzing explained:

The Medical Board of California has published guidelines on prescribing Controlled medications. Initially published in 1994, they have been revised in 2003, 2007, and most recently in 2014. The revised guidelines are not really new, the basic elements have not changed significantly at least since the 2003 revision. The 2014 guidelines included additional examples and information for increased clmity.

34. Even though Dr. Munzing, in reaching his opinions, may have utilized an MED threshold published by the CDC in 2016, this threshold was just one of the multiple factors that Dr. Munzing considered in evaluating whether respondent's prescribing practices depmted from the standmd of care. Other factors that Dr. Munzing relied upon included respondent's failures to: (l) perform and document adequate and appropriate histories and physical examinations prior to prescribing and/or refilling controlled substances; (2) develop adequate treatment plans and management goals; (3) monitor his patients' usc of controlled substances on an ongoing basis; (4) recognize the danger of prescribing opioids in combination with benzodiazepines; and (5) identify ''red flags" for abuse, addiction and diversion. From Dr. Munzing's report, it appeared that these other factors were in place at the time respondent engaged in the prescribing practices that Dr. Munzing opined constituted extreme departures from the standm·d of care. When all the factors Dr. Munzing relied upon am considered, it appeared that Dr. Munzing' s opinions were based substantially upon the standm·d of cme in place at the time respondent prescribed controlled substances to the patients at issue in this case. Consequently, respondent's aJgument that Dr. Munzing retroactively applied the recent standard of care to respondent's past prescribing practices must be rejected.

35. Petitioner's Selection of Five Patients. Respondent's aTgument that petitioner should have selected a representative sample of respondent's patients for review, instead of the five particular patients petitioner chose, was not persuasive. Physicians are required to treat all their patients in accordance with applicable standards of care. In order to ensure that all patients and the public m·e adequately protected, it was appropdate for petitioner to focus

13


on five patients for whom respondent's prescribing practices may have fallen below the standard of care.

36. Disagreement Among Experts. Respondent argued that, because his five experts disagreed with Dr. Munzing, petitioner presented insufficient evidence to support an ISO. Respondent argued further that the primary reason for the differences of opinion between petitioner's expert and respondent's five experts was the fact that Dr. Munzing looked only at respondent's past conduct with respect to the five selected patients, while respondent's experts included a review of respondent's current patients and the significant recent changes respondent has implemented in his practice.

37. Respondent's argument was not persuasive. Dr. Zaffmkhan, respondent's primary expert, opined that respondent engaged in extreme departures from the standard of care in his treatment of GN, CT and KM. Thus, Dr. Zaffarkhan's expert opinion supports that respondent has engaged in acts constituting a violation of the Medical Practice Act, and that pennitting respondent to continue to practice without restriction will endanger the public health, safety, and welfare. Respondent failed to submit sufficient evidence to establish that the recent changes he has made in his practice warrant the out1ight denial of the ISO petition. Instead, as set forth below, these changes me relevant to the issue of whether respondent may be safe to practice with appropriate restrictions and conditions.

38. Harm to the Susanville Community. Respondent argued that the ISO petition should be denied due to the harm that would be caused to the underserved Susanville community by losing a primary care physician. Respondent's argument was not persuasive. A physician who is practicing below the stand:u·d of care should not be allowed to continue practicing just because it would otherwise lower the number of available physicians and increase the physician-patient ratio for the remaining physicians. Public protection is the highest priority. A physician who is not safe to practice must be suspended or his practice must be restricted in order to ensme that he will not injure patients.

39. Practice Rest1ictions. Respondent argued that given the significant mitigation and remediation efforts he has made in his practice, restricting his authority to prescribe Schedule II narcotics would be sufficient to ensure that the public will be adequately protected during the interim period before an accusation is served and a decision is rendered thereon. Respondent's argument in this regard was persuasive.

40. Respondent has made substantial mitigation efforts to address the concerns raised in Dr. Munzing's expert report. He has: (1) modified his pain management protocol; (2) started using CURES data; (3) begun screening for signs of addiction, drug abuse, and diversion; (4) started monitoring his patients for DEA "red flags"; (5) increased his utilization of non-opioid treatment modalities; (6) instituted better monitoring of the drugs he prescribes; (7) modified his record-keeping system; (8) participated in CME regarding pain management and prescribing controlled substances; (9) enlisted the assistance of a specialist in musculoskeletal diseases; and (10) discontinued prescribing Schedule II narcotics. By instituting these changes, respondent has shown that he has gained significant insight into his

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Friday 23 of Sep 2016, Faxination -> Page 16 o£ 21

deficits with regard to prescribing and pain management, and has taken important steps in addressing these deficits. TI1ese changes and insight demonstrate that respondent would be safe to practice if his voluntary discontinuance of prescribing Schedule II narcotics was made mandatory. Because respondent's over-prescribing of nmcotics is the crux of the extreme depmtures from the standmd of cme alleged in this matter, restricting his ability to prescribe these dmgs and requiring record keeping with regard to his prescribing of controlled substances would address petitioner's primary concerns regmding respondent's safety to practice during the interim period before an accusation is filed and a decision is rendered thereon. At the ISO hem·ing, petitioner did not recommend any additional restrictions or conditions on respondent's practice.

LEGAL CONCLUSIONS

1. Pmsuant to Govemment Code section 11529, subdivbion (a), an ISO may be issued: (1) "if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act;" and (2) "permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare."

2. Government Code section 11529, subdivision (e), provides that:

(c) Consistent with the burden and standmds of proof applicable to a preliminm·y injunction entered under Section 527 of the Code of Civil Procedme, the administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that:

(1) There is a reasonable probability that the petitioner will prevail in the underlying action.

(2) The likelihood of injmy to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.

3. Business and Profession Code section 2234, in relevant pmt, provides:

The board shall take action against any licensee who is chm·ged with unprofessional conduct. In addition to olher provisions of this article, unprofessional conduct includes, but is not limited to, the following:

[q[] 0 0 0 [!j[]

(b) Gross negligence.

15


4. Business and Professions Code section 2242, subdivision (a), provides:

(a) Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022 without an approp1iate prior examination and a medical indication, constitutes unprofessional conduct.

5. Business and Professions Code section 725, in relevant pmt, provides:

(a) Repeated acts of clearly excessive prescribing, furnishing, dispensing, or administering of dmgs or treatment, repeated acts of clearly excessive use of diagnostic procedures, or repeated acts of clearly excessive use of diagnostic or treatment facilities as determined by the standard of the community of licensees is unprofessional conduct for a physician and surgeon, dentist, podiatrist, psychologist, physical therapist, chiropractor, optometrist, speech-language pathologist, or audiologist.

[<J!] ... [<J!]

(c) A practitioner who has a medical basis for prescribing, fumishing, dispensing, or administering dangerous drugs or presCliption controlled substances shall not be subject to disciplinary action or prosecution under this section.

(d) No physician and surgeon shall be subject to disciplinmy action pursuant to this section for treating intractable pain in compliance with Section 2241.5.

6. Business and Professions Code section 2241, in relevant part, provides:

(a) A physician and smgeon may prescribe, dispense, or administer prescription dmgs, including prescription controlled substances, to an addict under his or her treatment for a purpose other than maintenance on, or detoxification from, presCliption dmgs or controlled substances.

(b) A physician and surgeon may prescribe, dispense, or administer prescription drugs or prescription controlled substances to an addict for purposes of maintenance on, or detoxification from, prescription drugs or controlled substances only as set forth in subdivision (c) orin Sections 11215, 11217, 11217.5, 11218, 11219, and 11220 ofthe Health and Safety Code. Nothing in this subdivision :;hall authorize a physician and surgeon to prescribe, dispense, or administer dangerous

16

Page 17 of 21


dmgs or controlled substances to a person he or she lmows or reasonably believes is using or will use the dmgs or substances for a nonmedical purpose.

(c) Notwithstanding subdivision (a), prescription drugs or controlled substances may also be administered or applied by a physician and smgeon, or by a registered nurse acting under his or her instruction and supervision, under the following circumstances:

(1) Emergency treatment of a patient whose addiction is complicated by the presence of incurable disease, acute accident, illness, or injmy, or the infilmities attendant upon age.

(2) Treatment of addicts in state-licensed institutions where the patient is kept under restraint and control, or in city or county jails or state prisons.

(3) Treatment of addicts as provided for by Section 11217.5 of the Health and Safety Code.

(d) (1) For purposes of this section and Section 2241.5, "addict" means a person whose actions are characterized by craving in combination with one or more of the following:

(A) Impaired control over drug use.

(B) Compulsive use.

(C) Continued usc despite harm.

(2) Notwithstanding paragraph (1), a person whose drug-seeking behavior is primarily due to the inadequate control of pain is not an addict within the meaning of this section or Section 2241.5.

Page 18 of 21

7. As set forth in the Findings, petitioner submitted Dr. Munzing's Declaration, which shows that respondent has engaged in acts and omissions constituting a violation of the Medical Practice Act, including Business and Professions Code sections 2234, subdivision (b), 2242, 2227, and 2241, and that permitting him to continue to practice without restriction would endanger the public health, safely and welfare. Petitioner also established that: (1) there is a reasonable probability that she will prevail in the underlying action; and (2) the likelihood of injury to the public in not issuing an interim order outweighs the likelihood of injury to respondent in issuing the order. Thus, petitioner established that an interim order under Government Code section 11529 should be issued to ensme that the

17


public health, safety and welfare are adequately protected until an accusation is filed and a decision is rendered thereon.

8. But, as set forth in Finding 40, respondent submitted sufficient evidence to establish that the public health, safety and welfm-e would be adequately protected if he were allowed to continue to practice during the interim period before the accusation is filed and a decision is rendered under: (1) a restriction that makes mandatory his voluntary relinquishing of his authority to prescribe Schedule II narcotics; and (2) a controlled substances record-keeping requirement.

ORDER

Pending frnther order from the Office of Administrative Hearings, Physician's and Smgeon's Certificate No. A 352534 issued to respondent Sminder Kumm- Uppal, M.D., is suspended. However, the suspension is stayed so long as respondent complies with the following restrictions and conditions:

1. Respondent shall not order, presCiibe, dispense, administer, fumish, or possess any Schedule II narcotics. Respondent's DEA registration shall not authorize respondent to order, prescribe, dispense, administer, fmnish, or possess any Schedule II nmcotics. Respondent shall not amend, modify or change his DEA registration to permit him to order, prescribe, dispense, administer, furnish, or possess any Schedule II narcotics. Within 30 calendar days after the effective date of this Decision and every 30 days thereafter, respondent shall submit to the Board or its designee a true copy of his then current DEA registration to verify that it does not authorize him to order, prescribe, dispense, administer, fmnish, or possess any Schedule II narcotics.

2. Respondent shall maintain a record of all controlled substances ordered, presc1ibed, dispensed, administered, or possessed by respondent. Rc~pondent shall keep these records in a sepmate file or ledger, in chronological order. All records and any inventories of controlled substances shall be available for immediate inspection and copying on the premises by the Board or its designee at all times dming business hours and shall be retained for the pendency of this interim order.

3. If respondent fails to comply in any respect with the restrictions and conditions set forth above, the stay shall be lifted and tho suspension shall go into immediate effect.

II

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4. All of the terms and conditions of this interim order shall remain in full force and effect until an accusation is issued and a decision is rendered thereon in accordance with Govemment Code section 11529, subdivision (f), or this matter is otherwise resolved.

DATED: September 23,2016

(""''"' .. DocuSigned by:

l {(MI.+- -e~+o.,{~ ···•· 5D48770EB3084DC ..

KAREN J. BRANDT Administrative Law Judge Office of Administrative Hearings

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