BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against: ) ) ) SAFWAT RIZKALLA, M.D.

Physician's & Surgeon's Certificate No: A 50231

Respondent

) Case No.: 800-2015-013514 ) ) OAH No.: 2018050893 ) ) )

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ORDER OF NON-ADOPTION OF PROPOSED DECISION

The Proposed Decision of the Administrative Law Judge in the above-entitled matter has been non-adopted. A panel of the Medical Board of California (Board) will decide the case upon the record, including the transcript and exhibits of the hearing, and upon such written argument as the· parties may wish to submit directed at whether the level of discipline ordered is sufficient to protect the public. The parties will be notified of the date for submission of such argument when the transcript of the above-mentioned hearing becomes available.

To order a copy of the transcript, please contact Kennedy Court Reporters, 920 West 17th Street, 2nd Floor, Santa Ana, CA 92706. The telephone number is 800-231-2682

To order a copy of the exhibits, please submit a written request to this Board.

In addition, oral argument will only be scheduled if a party files a request for oral argument with the Board within 20 days from the date of this notice. If a timely request is filed, the Board will serve all parties with written notice of the time, date and place for oral argument. Oral argument shall be directed only to the question of whether the proposed penalty should be modified. Please do not attach to your written argument any documents that are not part of the record as they cannot be considered by the Panel. The Board directs the parties attention to Title .16 of the California Code of Regulations, sections 1364.30 and 13()4.32 for additional requirements regarding the submission of oral and written argument.

Please remember to serve the opposing party with a copy of your written argument and any other papers you might file with the Board. The mailing address of the Board is as follows:

Date: July 31, 2018

MEDICAL BOARD OF CALIFORNIA 2005 Evergreen Street, Suite 1200 Sacramento, CA 95815-3831 916-263-2451 Attention: Dianne Richards

idiff!k ~lt--Kristiilaii. Lawson,Chaif Panel B

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

SAFWAT RIZKALLA, M.D.,

Physician:s and Surgeon's License No. A 50231,

Respondent.

Case No. 800-20i5-013514 ·

OAH No. 2018050893

PROPOSED DECISION

Matthew Goldsby, Administrative Law Judge with the Office of Administrative Hearings, heard this matter on June_ 19 and 21, 2018, in Los Angeles, California.

Tan N. Tran, Deputy Attorney General, appeared and represented complainant Kimberly Kirchmeyer, Executive Director of the Medical Board of California, Department of Consumer Affairs (Board);

Lindsay M. Johnson, Attorney at Law, appeared and represented respondent Safwat Rizkalla, M.D., who was present throughout the hearing.

The parties submitted the matter for decision at the conclusion of the hearing1 on_June 21, 2018.

FACTUAL FINDINGS

Jurisdiction and License History .

1. Complainant brought the Accusation in her official capacity. Respondent timely submitted a Notice of Defense.

2. On December 3, 1991, the Board issued to respondent Physician's and Surgeon's Certificate number A 50231. Respondent's certificate is renewed and current with an expiration date of October 31, 2019.

3. · Since the date of his licensure, respondent has been regularly and continuously employed in the practice of anesthesiology. He became board-certified in anesthesiology in 1994. Respondent currently works at Upland Outpatient Surgical-Center as Director of Anesthesiology. He has no record of employment discipline, consumer complaints, or malpractice judgments.

4. On April 18, 2018, respondent's license was temporarily suspended pursuant to an Ex Parte Interim Suspension Order pending a hearing on the merits, and a noticed hearing was scheduled on May 7, 2018. After hearing, respondent's license was restricted on terms and conditions set forth in the Order on Petition for Interim Suspension Order dated May 9, 2018. In summary, respondent was ordered to abstain from the use of controlled substances, to submit to biological fluid testing, and to undergo and continue psychotherapy with a board-approved psychiatrist or psychologist.

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5. Except as described above, respondent has no public record of license discipline.

Investigation of Drug Use

6. On or about March 29, 2015, the Board was notified that respondent was an·ested by the Orange County Sheriff's Department on charges relating to domestic violence. The Board initiated an investigation of the incident.

7. Pursuant to the police report, officers were dispatched to respondent's residence on March 28, 20J5, at approximately 2:00 p.m. One of the officers heard arguing inside the residence. When confronted, responden,t told one of the officers that "he lost his job because he had been depressed for the past year [and] was currently taking depression medication but would not tell [the officer] the type of medication he took today." (Ex. 5, p. 003.)

8. The Board requested reports o,f all controlled substances dispensed to respondent from the Controlled Substance Utilization Review & Evaluation System (CURES) 1 for the period beginning May 16, 2009, and ending May 16, 2016. (Ex. 7.) Subsequent CURES reports were obtained for the periods from May 1, 2016, to May 18; 2017 (Ex. 11), from June 1, 2017, to October 19, 2017 (Ex. 18), and from March 2, 2018, to June 16, 2018 (Ex. 29).

. 1 CURES is a database compiled and maintained by the California Department of

Justice of all controlled substances prescribed and dispensed in the State of Califor!1.ia. A · dispensing pharmacy is required report 10 points of data relating to "each prescription for a Schedule II, Schedule III, or Schedule IV controlled substance." (Health & Saf. Code,§

I 11165, subd. (d); 21 C.F.R. §§ 1308.12, 1308.13, and 1308.14.) Data obtained from CURES may be provided to the Board for disciplinary purposes. (Health & Saf. Code, § 11165, subd. ( c )(2)(A).)

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9. The CURES report reflects that respondent was regularly taking opiates, including Hydrocodone Bitartrate and Acetaminophen (Norco) or Oxycodone HCL Acetaminophen (Percocet), beginning October 22, 2012. Both drugs are Schedule II controlled substances (21 U.S.C. § 1308.12(b), Health & Saf. Code,§ 11055), and "have a high potential for abuse which may lead to severe psychological or physical dependence." (21 U.S.C. § 812(b)(2).) The CURES reports show that the following quantities and doses of opiates were dispensed to respondent during the investigation period: ·

(A) On October 22, 2012, a prescription of Norco was filled and dispensed to respondent in the amount of 100 tablets (10/325 mg). The prescribing physician was respondent's sister Suzanne Sobhy-Farag Rizkalla, M.D.

(B) From November 10, 2012, through May f3, 2013, respondent acquired 180 tablets per month of Norco in the same dose based on his sister's prescription.·

(C) From June 7, 2013, through March 20, 2014, respondent acquired 240 tablets per month of Percocet (10/325 mg) based on the prescription of Sarni Soliman, respondent's brother-in-law; except, however, no such prescription was filled in November 2013 and 180 tablets were dispensed on March 20, 2014.

(D) Beginning May 7, 2014, through April 1, 2015, respondent acquired 240 tablets per month of Percocet in the same dose based on his sister's prescriptfon.

(E) From April 30, 2015, through October 14, 2017, respondent acquired 240 tablets per month of Percocet in the same dose based on his brother-in-law's prescription; except, however, no such prescription was filled in June 2015 and October . 2015.

(F) On March 12, 2018, respondent acquir~d 240 tablets of Percocet in the same dose. The evidence did not identify the prescribing physician. (Ex. 29.)

10. The CURES reports also reflect that respondent was taking regt'.ilar prescriptions of carisoprodol (Soma), alprazolam (Ativan), diazepam, and tramadol, beginning in 2011 and continuing throughout the investigation period. Each medication is a Schedule IV' controlled substance (21 U.S.C. § 1308.14(c), Health & Saf. Code,§ 11057), and has "a low potential for abuse relative to the drugs or other substances in Schedule III" and "currently accepted medical use in treatment in the United States." (21 U.S.C. § 812(b )( 4 ). ) The CURES reports show that the following quantities and doses of depres_sants were dispensed to respondent during the investigation period:

(A) Respondent was dispensed regular prescriptions of carisoprodol (Soma) beginning July 30, 2011, through November 4, 2013, as prescribed by respondent's wife Dalia Rizkalla, M.D. Quantities started with 120 tablets of 3 5 0 mg, and increased to 180 tablets, and then to 240 tablets, in the same dosage.

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(B) Respondent's wife also authorized regular prescriptions of alprazolam (Ativan), diazepam, and tramadol for respondent from April 14, 2012, through March 23, 2015.

(C) From April 16, 2015, to August 24, 2015, Stephanie Bolton, M.D., prescribed 90 tablets (2 mg) per month of Ativan. From January 19, 2016, to October 14, 2017, respondent's brother-in-law authorized the continuation of Ativan, but increased the monthly quantity to 120 tablets of the same dosage effective November 28, 2016.

(D) Respondent acquired 120 tablets of Ativan (2 mg) on March 5, 2018, and again on April 4, 2018. The evidence did not identify the prescribing physician. (Ex. 29.)

11. . The CURES.reports do not show that respondent prescribed any controlled substances to himself. ·

12. Respondent testified that none of the medications prescribed by his wife were controlled substances at the time they were dispensed to respondent, notwithstanding the current classification of each medication under current federal or state law (21 U.S.C. § 1308.14( c ), Health & Saf. Code, § 11057). His testimony is disbelieved as inherently improbable, contradicted by the record, and uncorroborated by any evidence as to the effective date of each drug's classification. Specifically, the CURES reports reflect that the California Department of Justice received data relating to the prescriptions filled by respondent's wife. Because a dispensing pharmacy is requfred to report data relating to prescriptions for controlled substances, it follows that a dispensing pharmacy is not required to report any data relating to a prescription that is not a controlled substance. Therefore, it is improbable that the information appearing on the CURES reports would have been reported ifrespondent's testimony was true. Accordingly, the finding is made that the medications prescribed by respondent's wife were controlled substances at the time those prescriptions were filled and dispensed to respondent.

13. Respondent testified that he had not taken any controlled substances before 2015. His testimony is disbelieved as contradicted by the record. The CURES rep011s reflect that controlled substances were dispensed to respondent as early as July 2011.

Medical Records

14. On November 6~ 2017, the Board issued an Investigational Subpoena Duces Tecum to Produce Papers and Documents to respondent's sister for the production of"a certified copy of the complete medical and/or psychiatric record of the patient identified as [respondent] between the dates 07/01/2011 through 10/31/2017." (Ex. 20, p. 006.) The sister produced her "complete records consisting of 19 pages." (Ex. 20, p. 002.) The records

. reflect that the sister first examined respondent on May 7, 2014. His chief complaint included back pain. The records reflect that she checked his vital signs, performed a subjective examination, and assessed respondent with back pain and disc disease. Her treatment plan included "start Percocet 10/325 mg. Start Soma 350 mg ... " The records

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reflect five further examinations between July 21, 2014, and April 30, 2015, which comport with the prescriptions of controlled substances prescribed and dispensed during that period. However, there are no medical records relating to the prescriptions of Norco and Percocet prescribed by the sister and dispensed to respondent between October 22, 2012, and May 13, 2013.

15. On December 5, 2017, respondent's wife produced her "complete records consisting of 12 pages; 13 pages including [the certification of records]." Her records reveal that on April 13, 2014, she executed an Order Requisition for magnetic resonance imaging (MRI) of respondent's cervical spine, thoracic spine, lumbar spine, and bilateral SI joints. The reasons given for the order included back and hip pain. Four days later, Anita M. Bajaj, M.D., a physician with no family relation to respondent, performed a series of MRI sequences as ordered by respondent's wife. Dr. Bajaj 's rep01is reflect findings and impressions consistent with degenerative disc disease. (Ex. 17.) There are no other medical records from respondent's wife relating to medications prescribed by the wife and dispensed to respondent beginning July 30, 2011, through the end of the investigation period.

16. Dr. Soliman produced his "complete records consisting of 19 pages." The records reflect 19 examinations bytween May 30, 2015, and October 14, 2017, during which Dr. Soliman entered medical notes of observations made during physical examinations, and assessments and prescriptions made as a result. The records do not reflect any examinations for the period beginning June 7, 2013 and ending April 30, 2015, during which time Dr. Soliman issued prescriptions of Percocet that were dispensed to respondent.

1 7. Respondent testified that, in September 2016, he suffered a heaii attack requiring the insertion of a stent, and that his continued use of Percocet was attributed to the heart attack. The records of Dr. Soliman dated September 16, 2016 reflect an examination "post hospitalization" and which corroborate respondent's testimony that he had a heart procedure. However, by October 15, 2016, Dr. Soliman was noting that respondent "feels better" and has "no chest pain". (Ex. 21, p. 19.) He prescribed Percocet based on his assessment of "chronic pain" without reference to·either the heart attack or procedure. (Id.) Accordingly, the medical records do not support respondent's testimony that his continued use of Percocet related to his heart attack.

18. Respondent testified that he was diagnosed with lung cancer in September 2017, and his continued use of Percocet was attributed to the surgery to remove part of his lung. Dr. Soliman's medical records corroborate respondent:s testimony, and include the observation "surgery pain worsen" on October 14, 2017.

19. Respondent has a history of Major Depressive Disorder (MDD), Anxiety Disorder, and Post-Traumatic Disorder. From April 2015 through August 2015, respondent sought psychiatric treatment at Loma Linda University Health for anxiety and depression. Stephanie Bolton, M.D., was the treating physician. Her medical records show that respondent complained of stressors caused by marital discord, that medications were recommended, including Ativan, and that he was "using more Ativan than prescribed, some

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days." (Ex. 24, p. 013.) Dr. Bolton noted that respondent "has umealistic expectations of medication" and regu,larly made notes to "monitor use [of Ativan] closely." (Ex. 24, pp. 013, 015, 017, 020, and 023.)

'·'

20. Dr. Solimon's medical records reflect that, beginning in December 2015, he assessed respondent with I\1DD with an apparent reference to Dr. Bolton's evaluation. He continuously prescribed Ativan to respondent thereafter.

Independent Exaininations

21. On March 12, 2018, at the direction of the Board, Paul A. Jain, M.D., performed a physical examination of respondent. Dr. Jain concluded that respondent did not suffer from any physical illness or condition which impacts his ability to safely engage in the practice of medicine. He reported, "[Respondent] is able to practice medicine safely at this time under the condition that he maintains routine mental health evaluations and psychotherapy with a board certified psychiatrist and psychologist. Another appropriate condition for his continued ·ability to practice will be routine random µrine toxicology screens to be performed at least monthly for the duration he is prescribed any controlled substances (ie -Percocet and Ativan)." (Ex. E.) During the examination, respondent submitted a urine sample for drug testing. Test results were positive for Ativan and Percocet.

22. On March 13, 2018, at the Direction of the Board, Markhan1 Kirsten, M.D., performed a psychiatric and psychological evaluation of respondent. Dr. Kirsten is board­certified in Addiction Psychiatry. Dr. Kirsten testified that, upon reviewing the CURES reports, he concluded that respondent had developed a dependence on opiates and sedatives. He calculated that respondent was taking eight tablets per day of Percocet, 10 mg per tablet, at the same time as he was taking up to 6 mg of Ativan per day. Dr. Kirsten testified that "these are high doses," that "the combination is very dangerous," and that the duration and regularity of respondent's use exceeded commonly-prescribed short term treatment. In Dr. Kirsten's opinion, in light of the duration and doses of respondent's drug use, withdrawing from the medication would require medical supervision.

23. Dr. Kirsten interviewed respondent for his medical and soc~al history. Respondent admitted to Dr. Kirsten that he took Ativan and Percocet on the same day he administered an.esthesia to patients. Respondent testified that he took an Ativan at 4:00 a.m., but did not perform surgery until late in the afternoon, implying that any intoxicating effect had fully dissipated by the time he was in the operating room. The CURES reports ·show that

-90 to 120 tablets of Ativan, in doses up to 2 mg, were dispensed to respondent on a monthly basis. Accordingly, respondent's testimony that he took a single.tablet at 4:00 a.m. is disbelieved as contradicted by the evidence that he was prescribed Ativan in amounts that would support respondent's taking thr~e to four tablets per day. Notwithstanding the foregoing.inference, there is no direct evidence to show that respondent was actually under the influence of any narcotic during operation~ to such an extent as ·to impair his ability to administer anesthesia safely or that any patient suffered any actual injury.

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24. Dr. Kirsten conducted a mental status examination, and· respondent.scored i:µ a normal range. He noted that respondent mistook the season in response to a question, considering it a sign of disorientation. Respondent otherwise had "no recall whether he had an attorney" and was unable to provide details about his divorce proceeding. Dr. Kirsten instructed respondent to draw a clock, which respondent was able to do, but with marked hesitation. None of these observations was alarming to Dr. Kirsten on its own, but in the context of respondent's recurring vague or halting responses to questioning, Dr. Kirsten testified that respondent's performance during the examination "made [Dr. Kirsten] believe [respondent] was intoxicated."

25. Dr. Kirsten diagnosed respondent with Severe Opioid Use Disorder, Severe Sedative Use Disorder, and Unspecified Depression. He concluded that respondent was using very high doses of Percocet, while using a high dose of Ativan, and that the combination was particularly dangerous for a male in his age range.

26. Respondent submitted to further drug testing on April 25, 2018, May 24, 2018, June 1, 2018, June 9, 2018, and Jtine 12, 2018. Test results in these last five screens were negative for benzodiazepines ;md oxycodone, and positive only for tramadol. 2

27. Respondent testified that he has not taken either Percocet or Ativan since March 13, 2018. However, the CURES reports show that he acquired 240 tablets of Percocet on March 12, 2018 (Factual Finding 9(F)) and 120 tablets of Ativan on April 4, 2018 (Factual Finding lO(D)). Because respondent gave false testimony about other facts (Factual Findings 12-13, 17, and 23), his testimony is not to be trusted as to this material fact.

. (People v. Lavergne (1971) 4 Cal.3d 735.) Accordingly, respondent's testimony is insufficiently reliable to make a finding of continued drug abstinence, notwithstanding the evidence of four negative test results within the eight weeks following March 13, 2018.

Impairment due to Mental/Physical Illness

28. There was a conflict in the evidence as to whether respondent's ability to safely practice medicine was impaired due to an opiate use disorder or sedative use disorder.

29. During the hearing, official notice was taken of the Diagnostic and Statistical Manual"ofMental Disorders, Fifth Edition (DSM-5). Pursuant to the DSM-5, Opioid Use

-Disorder and Sedative Use Disorder are both indicated by "a problematic pattern of [opioid 'or sedative] use leading to clinically significant impairment or distress." (See DSM-V, pp. 541, 550-551.) A severe condition for either disorder is manifested by the presence of six or more of the symptoms summarized below, occurring within a 12-month period:

(1) Opioids or sedatives are often taken in larger amounts or over a longer period than was intended;

)

2 Dr. Sucher credibly testified that tramadol is "a synthetic that operates like an opioid but is not an opioid, and is not as addictive or as risky as Percocet, but is effective in treating pain."

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(2) There is a persistent desire or unsuccessful efforts to cut down or control the drug use:

(3) A great deal of time is spent in activities necessary to obtain the drug, use the drug, or recover from its effects:

( 4) Craving, or a strong desire or urge to use the drug:

(5) Recurrent drug use resulting in a failure to fulfill major role obligations at work, school, or home;

( 6) Continued drug use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the drug;

(7) Important social, occupational, or recreational activities are given up or reduced because of drug use; ·

(8) Recurrent drug use in situations in which it is physically hazardous;

(9) Continued drug use despite knowledge of having a persistent or recurrent· physical or psychological problem that is likely to have been caused or exacerbated by the substance;

(10) Tolerance; and

(11) Withdrawal.

30. ·Dr. Kirsten diagnosed respondent with Severe Opioid Use Disorder and Severe Sedative Use Disorder. However, Dr. Kirsten was unable to identify which six or. more symptoms were present during his evaluation of respondent. On cross-examination, he identified four symptoms, including tolerance which is "not considered to be met for individuals taking opioids or sedatives under appropriate medical supervision." (DSM-V, pp. 541, 550-551.) He considered the medical supervision given by family members to be inappropriate and "hugely unprofessional." Respondent acquired controlled substanc.es from 2011 to 2015 based on the prescriptions of his wife and sister who had not consistently performed medical examinations prior to prescribing medications. However, within the 12 months preceding Dr. Kirsten's examination, the evidence shows that Dr. Solimon prescribed Percocet and Ativan after regularly examining respondent. Dr. Kirsten did not credibly testify that the medical records relating to those exammations were inadequate for purposes of prescribing controlled substances; Dr. Soliman noted symptoms or "the presence of satisfying evidence suggesting the need or advisability" to prescribe Percocet for chronic pain and Ativan for MDD. (Whitlow v. Board of Medical Examiners (1967) 248-Cal.App.2d 478, 482.) '

I II

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31. Moreover, Dr. Kirsten acknowledged in his testimony that he concluded respondent had a diagnosable disorder based solely on his review of the data reported in the CURES reports. The duration, dosage, and type of medication dispensed to respondent since 2011 arguably satisfies the first diagno~tic criteria in the DSM-V, but none of the other criteria. Complainant presented police reports to show that respondent had arguments with his wife and respondent acknowledged that his 28-year marriage was in the process of dissolving; however, no direct evidence was presented to establish that respondent's drug use was the subject of his marital discord or the cause for the divorce. 3 Respondent admitted that he did not socialize at work, prefelTing to eat alone; however, complainant presented no direct evidence to show that this particular anti-social behavior was attributed to drug use, rather than indifference or shyness. No direct evidence was presented to show that drug use resl,llted in any failure to fulfill major role obligations at work or at home.

32. Dr. Kirsten c01Tectly noted that respondent is unreliable as a source of historical information regarding his drug use. Respondent's defensive demeanor and his adamant denial of facts that were objectively established to be true contrary to his testimony were indeed factors that substantially impeached his entire testimony. However, denial of drug abuse is not in and of itself a diagnosable criterion for a substance use disorder under theDSM-V.

33. · Respondent acknowledged that he admini~tered anesthesia during the period that he was regularly ta,king Percocet and Ativan. This conduct is symptomatic of recuITent drug use in situations that are physically hazardous and evidences unprofessional conduct as addressed below. However, the record remains far shy of meeting all of the diagnostic criteria for severe opioid/sedative use disorder.

34. The opinion of an expert witness is ·no ·qetter than the reasons given for it, and if the opinion is based on facts not proven by clear and convincing evidence, or assumes facts contrary to the only proof, the opinion "cannot rise to the dignity of substantial evidence." (White v. State a/California (1971) 21 Cal.App.3d 738, 760.) Complainant failed to present clear and convincing evidence to support her expert's opinion of severe opioid use disorder and severe sedative use disorder.

35. Dr. Kirsten also diagnosed respondent with depr~ssion. Other than the potential need for medication, Dr. Kirsten did not credibly testify that the ability to practice safely is impaired due to the condition of depression. Dr. Sucher credibly testified that respondent'.s depression is not related to a chemical imbalance, but.is caused by significant stressors relating to this disciplinary action and respondent's divorce proceeding, which was

· supported by the medical records of Dr. Bolton.

3 The police reports are inadmissible to prove the matters asserted by respondent's wife to the officers. (Lake v. Reed (1997) 16 Cal.4th 448.) No direct evidence was offered that could be supplemented or explained by the hearsay statements of respondent's wife. (Gov. Code,§ 11513, subd. (c).)

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36. Accordingly, Dr. Kirsten's testimony is insufficient to support a finding that respondent currently suffers from a mental illness or condition that impairs his ability to safely engage in the practice of medicine.

Standard of Care

3 7. The standard of care for a given profession is a question of fact and in most circumstances must be proven through expert witnesses. (Flowers v: Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-998, 1001; Alefv. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) "Standard of care" means the use of that reasonable degree of skil( care, and knowledge ordinarily possessed and exercised by members of the profession under similar circumstances, at or about the time of the incidents _in question .. (Flowers, supra, 8 Cal.4th at pp. 997-998.)

38. As articulated in the case of Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th 992 at page 997:

The amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. (Citation.) "'There are no "degrees" of care as a matter of law; there ·are only different amounts of care, as a matter of fact.. .. ' [Citation.]" (Citation.) "Persons dealing with dangerous instrumentalities involving great risk of harm must exercise a greater amount of care than persons acting in less responsible capacities, but the former are no more negligent than the latter for failing to exercise the required care. [Citation.]" (Citation).

39. Dr. Kirsten testified that respondent was acting in a way that was "highiy dangerous to the patient," and committing a "severe departure from the standard of care by seeing patients under the influence." He testified that a "zero-tolerance policy" against performing anesthesia services while being treated with controlled substances was based on "a community standard." Dr. Kirsten further testified that "an airline pilot using these medications would not be allowed to fly an airplane." Dr. Sucher, respondent's expert, acknowledged that the Federal Aviat_ion Administration has a "zero-tolerance policy" for the use of controlled substances, whether prescribed or not, that would prohibit a pilot from flying an airplane on the same day he was taking Percocet or Ativan. Respondent's expert added that firefighters have a similar prohibition.

40. Although respondent's profession does not involve flying airplanes or fighting fires, anesthesiologists deal with dangerous instrumentalities involving great risk of harm. Both experts testified that Ativan can cause drowsiness and that respondent was taking the

·'highest recommended dose by taking 2 mg tablets four times per day. Nonetheless, Dr. Sucher testified that "thousands take medications who are safe to_ practice iftaking it

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~~ therapeutically," but failed to explain how a prescription for a controlled substance, even if prescribed for legitimate medical treatment, would minimize or eliminate its sedating or intoxicating effect.

41. Because of the degree of risk involved in anesthesiology, Dr. Kirsten credibly testified that respondent was duty-bound to exercise a greater amount of care than physicians practicing in less dangerous fields of medicine. Respondent was taking high doses of controlled substances prescribed by family members from 2011 to 2015 without appropriate examinations. No eviqence was presented to show that controlled substances were prescribed by any orthopedist or pain management specialist in connection with his back pain, or by either surgeon who performed his heart and lung operations. As a licensed physician, respondent knew that an appropriate examination was required before a licensee· prescribes any medication, and he exercised poor judgment by looking to his wife~ sister, and brother-in-law to use their licenses to prescribe controlled substances over long periods of time without submitting to an examination except on the limited occasions described above. ·

42. All of these relevant circumstances tend to support the expert testimony of Dr. Kirsten that the standard of care in th,is case obligated respondept to refrain from using controlled substances, whether prescribed or not, while administering anesthesia to patients, and that his recurrent use of Ativan and Percocet on days of performing those services was an extreme departure from the standard of care.

Mitigating and Aggravating Facts

43. Respondent complied with the terms and conditions of the Order on Petition for Interim Suspension Order. ·

44. Dr. Sucher is licensed in California and Afizona, and has served as a director and consultant for the Arizona Medical Board. He credibly testified that the Arizona Legislature has enacted laws against inter-family prescriptions of controlled substances; however, the California Legislature has enacted no similar law, and the Board has not adopted any regulation to prohibit a licensee from being treated with controlled substances

· prescribed by a family member with an active license isslied by the Board ..

45. Respondent experienced prior interventions from law enforcement relating to reports of domestic violence as foltows:

(A) On September 13, 2006, police were dispatched to respondent's residence on a "911 hang up." (Ex. 12, p. 003.) While speaking to respondent's wife, officers observed "a half-inch scratch on her right cheek that was slightly bleeding." (Ex. 12.) Respondent was arrested on charges relating to domestic violence, and taken to the local police station for booking. The reporting officer took respondent's description of the incident . as follows: "[Respondent] told me in retaliation, he pushed her with the back of his right hand. While describing this action to me, [respondent] was making a backhand striking movement. I asked [respondent] where he pushed her, and he told me on the right side of her

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face.'' (Ex. 12, p. 004.) No criminal charges were filed against respondent based on the incident.

(B) On April 17, 2013, an officer was dispatched to respondent's residence on "a domestic violence call." (Ex. 15.) Respondent "agreed to temporarily leave the residence so both parties can cool off." (Id.)

(C) On March 11, 2015, police received an anonymous call reporting a disturbance complaint at respondent's residence. An officer contacted respondent who stated that "he and his wife were in disagreement over trivial issues but did not want to state what they were." (Ex. 15, p. 007.)

46. Respbndent and his wife have filed for the dissolution of their marriage, and their relations are acrimonious. Respondent testified that he has good relations with his two grown children, and that he does not believe they are aware of the disciplinary action against him. Because "the Accusation is so humiliating and inappropriate" to respondent, he was too embairassed to solicit character reference letters.

LEGAL CONCLUSIONS

Standard and Burden of Proof

1. Complainant has the· burden of proof in an administrative action seeking to suspend or revoke a professional license, and the standard is clear and convincing proof to a reasonable ce1iainty. (Ettinger v. Board of Medical Quality Assurance ( 1982) 13 5 Cal.App.3d 853, 856.)

2. ·Clear and convincing evidence requires· a finding.of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. (Christian Research Institute v. A/nor (2007) 148 Cal.App.4th 71, 84.)

Governing Law and Legislative Intent

3. The Medical Practice Act governs the rights and responsibilities of the holder of a physician's and surgeon's certificate. (Bus. & Prof. Code,§§ 2000 et seq.) The state's 9bligation and power to regulate the professional conduct of its health practitioners is well settled. (Shea v. Board of Medical Examiners (1978) 81Cal.App.3d564; Fuller v. Board of

, Medical Examiners (1936) 14 Cal.App.2d at p. 741.)

4. The purpose of a disciplinary action is not to punish, but to protect the public. (Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1416.) Protection of the public is the highest priority for the Board in exercising its disciplinary authority and is paramount.· over other interests in conflict with that objective. (Bus. & Prof. Code, § 2001.1.)

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Mental/Physical Illness

5. The first cause for discipline alleges that respondent is unable to practice safely because his ability to practice is impaired d~e to a physical or mental illness affecting competency.

6. Whenever it appears that a licensee may be unable to practice his or her profession safely, because the licensee's ability to practice is impaired due to a physical or mental illness affecting competency, the Board may order the licensee to be examined by one or more physicians or psychologists. (Bus. & Prof. Code, § 820.) If the Board deterh1ines that respondent's ability to practice his_profession safely is impaired because he is mentally or physically ill, the Board may take action by revoking the licensee's certificate or license.

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(Bus. & Prof. Code, § 822, subd. (a).)

7. · In this case, respondent was examined by two physicians designated by the Board, and neither physician provided clear and convincing evidence that respondent suffered from either a physical or mental illness affecting his competency. Accordingly, cause does not exist to discipline respondent's license under Business and Professions Code sections 820 and 822.

Negligence

8. The second and third causes for discipline allege unprofessional conduct based on gross negligence and repeated acts of negligence.

9. The Board is require to take action against any licensee who is charged with unprofessional conduct. (Bus. & Prof: Code, § 2234.) Unprofessional conduct includes gross negligence and repeated acts of negligence. (Bus. & Prof. Code, § 2234, subds. (b) and (c).)

10. The Medical Practice Act does not define "negligence." However, courts have defined negligence as a "simple departure from the standard of care." (Zabetian v. Medical Board of California (2000) 80 Cal.App.4th 462) Gross negligence includes "an extreme departure froin the ordinary standard of conduct." (Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 941; Van Meter v. Bent Cons. Co .. (1956) 46 Cal.2d 588, 594.) Repeated acts of negligence include "an initial act or omission followed by a separate and distinct departure from the standard of care." (Bus. & Prof. Code,§ 2234, subd. (c).)

11. Complainant presented clear and convincing evidence to establish that it was an extreme departure from the standard of care to administer anesthesia to patients while under the influence of Percocet and Ativan, whether or not the medication was prescribed. Respondent repeated the misconduct throughout the period from·Qctober 2012 through March 2018. Although there is no evidence of actual harm to any patient during the period of time respondent was using controlled substances, the objective of protecting the public in matters involving license discipline includes the prevention of future harm; to prohibit

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license discipline until the licensee harms. a patient disregards these purposes. (Griffiths v. Superior Court (2002) 96 Cal.App.4th 757; In re Kelley (1990) 52 Cal.3d 487.)

12. Cause exists to discipline respondent's license under business and Professions Code section 2234, subdiyisions. (b) and ( c ).

Violations of the Law

13. . The fourth cause for discipline alleges unprofessional conduct based on violations of drug statutes.

14. Violating a federal or state regulation or statute regulating dangerous drugs or controlled substances constitutes unprofessional conduct. (Bus. & Prof. Code,§ 2238.)

15. Although Arizona has enacted laws against inter-family prescribing, complainant has cited no point of California law that prohibits a duly licensed physician from prescribing controlled substances to a family member, or that a prescription written by a spouse is tantamount to self-prescribing by virtue of the relationship.

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16.. Prescribing controlled substances to respondent without an appropriate prior examination and a medical indication may have been unprofessional conduct for respondent's wife, sister, and brother-in-law. (Bus. & Prof. Code,§§ 2242 and 4022.) Moreover, their conduct may have violated Business and Professions Code section 2266 (failure to maintain adequate and accurate records). However, whetper.any licensed family member is subject to discipline is not an issue in this administrative proceeding, and these laws are inapplicable to l'espondent as the patient for whom the services were rendered and the controlled substances were prescribed.

17. The "zero-tolerance policy" that Dr. Kirste'n described has not been adopted by the Board in any regulation. Accordingly, although-the community standard may serve as a basis for determining negligence, it is not enforceable as a regulation. (Tidewater Marine · Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557.) Business and Professions Code section· 2280 prohibits the practice of medicine "while under the influence of any narcotic ... to such an extent as to impair [the physician's] ability to conduct the practice of medicine with ·safety to the public and his or her patients." Complainant did not allege the violation of this statute as a cause for discipline and has not presented evidence of respondent's state of intoxication on the dates that he performed surgery.

18. Cause does not exist to discipline respondent's license under Business and Professions Code section 2238 because there was insufficient evidence that he did violated any regulation or statute regulating dangerous drugs or controlled substances.

Misuse of Controlled Substances

19. The fifth cause for discipline alleges that te1)pondent misused controlled substances.

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20. Unprofessional conduct includes: "The use or prescribing for or administering to himself or herself, of any controlled substance; ... to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely ... " (Bus. & Prof. Code,§ 2239, subd. (a).)

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21. In this case, there is no evidence that respondent prescribed any contr,olled substances to himself. However, respondent used Ativan and Percocet on d~ys that he administered anesthesia to patients, clear and convincing evidence that he used controlled substances in such a maimer as to be dangerous or injurious to the public.

22. Cause exists to discipline respondent's license under Business and Profes~ions Code section 2239 because he misused controlled substances.

Level of Discipline

23. An administrative law judge of the Medical Quality Hearing Panel is mandated, wherever possible, to take action calculated to aid in the rehabilitation of the licensee or to order restrictions as indicated by the evidence. (Bus. & Prof. Code, § 2229, subd. (b).)

24. In reaching a decision on the appropriate level of discipline, the Board must consider the guidelines entitled Manual of Model Disciplinary Orders and Disciplinary Guidelines, 12th Edition, 2016. (Cal. Code Regs., tit. 16, § 1361, subd. (a).) For the causes of discipline established herein, the guidelines recommend a maximum penalty of revocation and a minimum penalty of stayed revocation with five years of probation.

25. Deviating from the guidelines is appropriate where the facts of the particular case warrant such a deviation, such as the presence of mitigating factors. (Cal. Code Regs., tit. 16, § 1361, subd. (a).)

26. Rehabilitation requires a consideration of those offenses from which one has allegedly been rehabilitated. (Pacheco v. State Bar (1987) 43 Cal.3d 1041.) Rehabilitation is a state of mind, and the law looks with favor upon rewarding with the opportunity to serve one who hasachieved reformation and regeneration. (Id., at 1058.) The absence of a prior disciplinary record is a mitigating factor. (Chefsky v. State Bar (1984) 36 Cal.3d 116, 132, fn. 10.) Remorse and cooperation are mitigating factors. (In re Demergian (1989) 48 Cal.3d 284, 296.) While a candid admission of misconduct and full acknowledgment of wrongdoing may be a necessary step in the rehabilitation process, it is only a first step. A truer indication of rehabilitation is presented if an individual demonstrates by sustained conduct over an extended period of time that he is once again fit to practice. (In re Trebilcock (1981) 30 Cal.3d 312, 315-316.)

27. The task in disciplinary cases is preventative, protective and remedial, not punitive. (In re Kelley (1990) 52 Cal.3d 487.) Respondent has been licensed by the Board for more than 26 years with no history of prior discipline. Respondent has complied with the

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terms of th~ Interim Suspension Order and the results from five consecutive drug screens were negative for Percocet and Ativan.

28. However, a six-week demonstration of abstinence demonstrated by five negative drug screens is insufficient to show full rehabilitation and respondent's testimony established that he cannot be relied upon to self-regulate his drug use. On the other hand, outright revocation of respondent's certificate would be unduly punitive in light of respondent's evidence of mitigation and rehabilitation. Imposing probationary terms to . monitor respondent's use ofcontrolled substan6es and oversee his practice for three years will protect the public and further the remedial objectives of discipline.

ORDER

Certificate No. A 50231 issued to respondent Safwat Rizkalla, M.D. is revoked pursuant to detenninations of the second, third, and fifth causes for discipline, separately and for all of them. However, the revocation is stayed and respondent is placed on probation for three years upon the following terms and conditions

1. Controlled Substances - Abstain From Use

Respondent shall abstain completely from the personal use or possession of controlled substances as defined in the California Uniform Controlled Substances Act, dangerous drugs as defined by Business and Professions Code section 4022, and any drugs requiring a prescription. This prohibition does not apply to medications lawfully prescribed to respondent by another practitioner for a bona fide illness or condition.

Within 15 calendar days of receiving any ,lawfully prescribed medications, respondent · shall notify the Board or its designee of the: issuing practitioner's name, address, and telephone number; medication name, strength, and quantity; and issuing pharmacy name, address, and telephone number.

If respondent has a confirmed positive biological fluid test for any substance (whether or not legally prescribed) and has not reported the use to the Board or its designee, respondent shall receive a notification from the Board or its designee to immediately cease the practice of medicine. Respondent shall not resume the practice of medicine until the final decision on an accusation and/or a petition to revoke probation is effective. An accusation and/or petition to revoke probation shall be filed by the Board within 30 days of the notification to cease practice. If respondent requests a hearing on the accusation and/or petition to revoke probation, the Board shall provide respondent with a hearing within 30 days of the request, unless respondent stipulates to a later hearing. If the case is heard by an Administrative Law Judge alone, he or she shall forward a Proposed Decision to the Board within 15 days of submission of the matter. Within 15 days of receipt by the Board of the Administrative Law Judge's proposed decision, the Board shall issue its Decision, unless

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good cause can be shown for the delay. If the case is heard by the Board, the Board shall issue its decision within 15 days of submission of the case, unless good cause can be shown for the delay. Good cause includes, but is not limited to, non-adoption of the proposed decision, request for reconsideration, remands and other interlocutory orders issued by the Board. The cessation of practice shall not apply to the reduction of the probationary time period.

If the Board does not file an accusation or petition to revoke probation within 30 days of the issuance of the notification to cease practice or does not provide respondent with a hearing within 30 days of a such a request, the notification of cease practice shall be dissolved.

2. Biologic'al Fluid Testing

Respondent shall immediately submit to bfological fluid testing, at respondent's expense, upon request of the Board or its designee. "Biological fluid testing" may include, but is not limited to, urine, blood, breathalyzer, hair follicle testing, or similar drug screening approved by the Board or its designee. Prior to practicing medicine~ respondent shall contract with a laboratory or service approved in advance by the Board or its designee that will conduct random, unannounced, observed, biological fluid testing. The contract shall require results of the tests to be transmitted by the laboratory or service .directly to the Board or its designee within four hours of the results becoming available. Respondent shall maintain this laboratory or service contract during the period of probation.

A certified copy of any laboratory test result may be received in evidence in any proceedings between the Board and respondent.

I.

If respondent fails to cooperate in a random biological fluid testing program within the specified time frame, respondent shall receive a notification from the Board or its designee to immediately cease the practice of medicine. Respondent shall not resume the practice of medicine until the final decision on an accusation and/or a petition to revoke probation is effective. An accusation and/or petition- to revoke probation shall be filed by the Board within 30.days of the notification to cease practice. If respondent requests a hearing on the accusation and/or petition to revoke probation, the Board shall provide respondent with a hearing within 30 days of the request, unless respondent stipulates to a later hearing. If the case is heard by an Administrative Law Judge alone, he or she shall forward a Proposed Decision to the Board within 15 days of submission of the matter. Within 15 days ofreceipt by the Board of the Administrative Law Judge's. p

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roposed decision, the Board shall issue its Decision, unless good cause can be shown for the delay. If the case is heard by the Board, the Board shall issue its decision within 15 days of submission of the case, unless good cause can be shown for the delay. Good cause includes, but is not limited to, non­adoption of the proposed decision, request for reconsideration, remands and other interlocutory orders issued by the Board. The cessation of practice shall not apply to the reduction of the probationary time period.

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If the Board does not file an accusation or petition to revoke probation within 30 days of the issuance of the notification to cease practice or does not provide respondent with a · hearing within 30 days of a such a request, the notification of cease practice shall be dissolved.

3. Psychotherapy

Within 60 calendar days of the effective date of this Decision, respondent shall submit to the Board or its designee for prior approval the name and qualifications of a California­licensed board-certified psychiatrist or a licensed psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders. Upon approval, respondent shall undergo and continue psychotherapy treatment, including any modifications to the frequency of psychotherapy, until the Board or its designee deems that no further psychotherapy is necessary.

The psychotherapist shall consider any information provided by the Board or its designee and any other information the psychotherapist deems relevant and shall furnish a written evaluation report to the. Board or its designee. Respondent shall cooperate in providing the psychotherapist any information and documents that the psychotherapist may deem pertinent. .

Respondent shall have the treating psychotherapist submit quarterly status reports to the Board or its designee. The Board or its designee may require respondent to undergo · psychiatric evaluatiops by a Board-appointed board-certified psychiatrist. If, prior to the completion of probation, respondent is found to be mentally unfit to resume the practice of medicine without restrictions, the Board shall retain continuing jurisdiction over respondent's license and the period of probation shall be extended until the Board determines that respondent is mentally fit to resume the practice of medicine without restrictions.

Respondent shall pay the cost of all psychotherapy and psychiatric evaluations.

4. Notification

Within seven days of the effective date of this Decision, respondent shall provide a true copy of this Decision and Accusation to the Chief of Staff or the Chief Executive. Officer . at every hospital where privileges or membership are extended to respondent, at any other facility where respondent engages in the practice of medicine, including all physician and locum tenens registries or other similar agencies, and to the Chief Executive Officer at every .insurance carrier which extends malpractice insurance coverage to respondent. Respondent shall submit proof of compliance to the Board or its designee within 15 calendar days.

This condition shall apply to any change in hospitals, other facilities, oi· insurance carrier.

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5. Supervision of Physician Assistants and Advanced Practice Nu,rses.

During probation, respondent is prohibited from supervising physician assistants and advanced practice nurses.

6. Obey All Laws.

Respondent shall obey all federal, state and local laws, all rules governing the practice of medicine in California and remain in full compliance with any court ordered criminal probation, payments, ~d other orders.

7. Quarterly Declarations.

Respondent shall submit quarterly declarations under penalty of pe1jury on forms provided by the Board, stating whether there has been compliance with all the conditions of probation.

Respondent shall submit quarterly declarations not later than 10 calendar days after the end of the preceding quarter.·

8. General Probation Requirements . . I ,

Compliance with Probation Unit: Respondent shall comply with the Board's probation unit.

Address Changes: Respondent shall, at all times, keep the Board informed of respondent's business and residence addresses, email address (if available), and telephone number. Changes of such addresses shall be immediately communicated in wrltirig to the Board or its designee. Under no circumstances shall a post office b"Ox serve as an address of record, except as allowed by Business and Professions Code section 2021, subdivision (b ).

Place of Practice: Respondent shall not engage in the practice of medicine in respondent's or patient's place of resid~nce, unless the patient resides in a skilled nursing facility or other similar licensed facility.

License Renewal: Respondent shall maintain a current and renewed California physician's and surgeon's license.

Travelor Residence Outside California: Respondent shall immediately inform the Board or its designee, in writing, of travel to any areas outside the jurisdiction of California which lasts, or is contemplated to 1last, more than 30 calendar days. In the event respondent should leave the State of California to reside or to practice respondent' shall notify the Board

, or its designee in writing-30 calendar days prior to the dates of departure and return.

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9. Interview with the Board or its Designee.

Respondent shall be available in person upon request for interviews either at respondent's place of business or at the probation unit office, with or without prior notice throughout the term of probation.

10. Non-practice While on Prnbation.

Respondent shall notify the Board or its designee in writing within 15 calendar days of any periods of non-practice lasting more than 30 calendar days and within 15 calendar · days of respondent's return ~o practice. Non-practice is defined as any period of time respondent is not practicing medicine as defined in Business and Professions Code sections 2051 and 2052 for at least 40 hours in a calendar month in direct patient care, clinical activity or teaching, or other activity as approved by the Board. If respondent resides in California and is considered to be in non-practice, respondent shall comply with all terms and conditions of probation. All time spent in an intensive training program which has been · approved by the Board or its designee shall not be considered non..:practice and does not relieve respondent from complying with all the terms and conditions of probation. Practicing medicine.in another state ofthe United States or Federal jurisdiction while on probation with the medical, licensing authority of that state or jurisdiction shall not be considered non­practice. A Board-ordered suspension of practice shall riot be considered as a period of non­practice.

In the event respondent's period of non-practice while on probation exceeds 18 calendar months, respondent shall successfully complete the Federation of State Medical Board's Special Purpose Examination, or, at the Board's discretion, a clinical competence assessment program that meets the criteria of Condition 18 of the current version of the Board's "Manual of Model Disciplinary Orders and Disciplinary Guidelines" prior to resuming the practice of medicine.

Respondent's period of non-practice while.on probation shall not exceed two years. Periods of non-practice will not apply to the reduction of the probationary term. Periods of non-practice for a respondent residing outside of California, will relieve respondent of the responsibility to comply with the probationary terms and conditions with the exception of this condition and the following terms and conditions of probation: Obey All Laws; General Probation Requirements; Quarterly Declarations; Abstain from the Use of Alcohol and/or Controlled Substances; and Biological Fluid Testing.

11. Completion of Probation.

Respondent shall comply with all financial obligations (e.g., restitution, probation costs) not later than 120 calendar days prior to the completion of probation. Upon successful completion of probation, respondent's certificate shall be fully restored.

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I .,

12. Violation of Probation.

Failure to fully comply with any term or condition of probation is a violation of probation. If respondent violates probation in any respect, the Board, after giving respondent notice and the opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed. If an Accusation, or Petition to R~voke Probation, or an Interim Suspension Order is filed against respondent during probation, the Board shall have­continuing jurisdiction until the matter is fin:;il, and the period of probation shall be extended until the matter is final. -

13. License Surrender.

Following the effective date of this Decision, if respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy the terms and conditions of probation, respondent may request to surrender his license. The Board reserves the right to evaluate respondent's request and to exercise its discretion in determining whether or not to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon fonnaracceptance of the surrender, respondent shall within 15 calendar days deliver respondent's wallet and wall certificate to the Board or its designee and respondent shall no longer practice medicine. Respondent will no longer be subject to the terms and conditions of probation. If respondent re-applies for a medical license, the application shall be treated as a petition for reinstatement of a revoked certificate.

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14. Probation Monitoring Costs.

Respondent shall pay the costs associated with probation monitoring each and every year of probation, as designated by the Board, which may be adjusted. on an annual basis. Such costs shall be payable to the Medical Board of California and delivered to the Board or its designee no later than January 31 of each calendar year.

DATED: July 20, 2018

Administrative Law Judge Office of Administrative Hearings

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