before the medical board of california department of

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

SRIDHARA IYENGAR, M.D.

Physician's and Surgeon's Certificate No. C42391

Respondent.

Case No. 04-2008-19004 7

OAH No. 2010090645

DECISION AFTER NONADOPTION

James Ahler, Administrative Law Judge, Office of Administrative Hearings, State of California, heard this matter on June 4 through 7, 2012, in San Diego, California.

Sanford H. Feldman, Deputy Attorney General, Department of Justice, State of California, represented complainant, the Executive Director of the Medical Board of California, Department of Consumer Affairs, State of California.

Carlo Coppo and David M. Balfour, Attorneys at Law, represented respondent, Sridhara Iyengar, M.D., who was present throughout the administrative hearing.

The matter was submitted on June 7, 2012.

The proposed decision of the administrative law judge was submitted to Panel "A" of the Medical Board of California (hereafter "Board") after due consideration thereof, the Board declined to adopt the proposed decision and thereafter on July 27, 2012, issued an Order of Nonadoption of Proposed Decision. On September 4, 2012, the Board issued an Amended Notice of Hearing for Oral Argument. On September 19, 2012, oral argument was heard, and the Board voted on this matter that same day.

At the September 19, 2012, meeting of Panel A, Complainant's counsel made a motion to strike section six of Respondent's Written Argument based upon the impermissible addition of new evidence, and Administrative Law Judge Sarli granted the motion

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The time for filing written argument in this matter having expired, written argument having been filed by both parties, and such written argument, together with the entire record, including the transcript of said hearing, having been read and considered, pursuant to Government Code Section 11517, the Board hereby makes the following decision and order:

SUMMARY

Dr. Iyengar, a cardiothoracic surgeon, engaged in disruptive behavior at Fountain Valley Medical Center in 2007 during separate interactions with three female healthcare professionals. Dr. lyengar's unprofessional conduct was thoughtless, juvenile, and crude. His uncalled-for comments and boorish behavior did not result in actual patient harm, but it disrupted the hospital environment and created considerable ill will. The recipients of Dr. lyengar's uncouth comments and offensive interactions have come to realize that Dr. Iyengar is an immature and bothersome man. About ten years ago, Dr. Iyengar was on probation to the Medical Board for forcing "unwanted familiarities" on two female staff members at another hospital. Something must be done. That something is the imposition of a 30-day suspension coupled to a five-year period of probation.

FACTUAL FINDINGS

Jurisdictional Matters

1. On August 6, 2010, complainant, Linda K. Whitney, the Executive Director of the Medical Board of California, Department of Consumer Affairs, State of California, signed Accusation Case No. 02-2008-19004 7. The accusation alleged that respondent, Sridhara Iyengar, M.D., engaged in general unprofessional conduct in his interactions with three female health care providers. The accusation and other jurisdictional documents were served on Dr. Iyengar.

Dr. Iyengar, through counsel, filed a notice of defense and an amended notice of defense. The amended notice of defense alleged, "Under Government Code§ 11506(a)(2), Respondent objects to the accusation upon the ground that it does not state acts or omissions upon which the agency may proceed."

On June 4, 2012, the record in this disciplinary proceeding was opened. Jurisdictional documents were presented. Respondent's motion to dismiss the accusation on the grounds of !aches was denied without prejudice because prejudice was not established. Respondent's motion to exclude evidence of his prior discipline and to exclude a transcript obtained from a 1998 hearing on his motion for the early termination of probation was denied. Respondent's motion to strike paragraph 7(e) of the accusation was granted because the allegations contained therein were vague, indefinite and uncertain. Respondent's motion to exclude hearsay evidence was

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granted if the hearsay evidence was not the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs or if the hearsay evidence was offered for some purpose other than to supplement or explain admissible evidence on which a factual finding could be based. Respondent's motion to exclude the testimony of complainant's expert witness was denied without prejudice.

On June 4 through June 7, 2012, sworn testimony and documentary evidence was received.

On June 7, 2012, closing arguments were given; the record was closed; and the matter was submitted.

License Status

2. On February 1, 1988, the Medical Board issued Physician's and Surgeon's Certificate No. C 42391 to Sridhara K. S. Iyengar, M.D. Certificate No. C 42391 is current and is renewed through September 30, 2013.

License History

3. On February 25, 1994, Accusation No. D-5680 was filed with the Medical Board. It alleged, among other matters, that in 1991 and 1992, Dr. Iyengar attempted to kiss nurse RH, kissed nurse RH, and kissed nurse CC at Anaheim General Hospital; that the two nurses did not consent to Dr. lyengar's advances; and that after Dr. lyengar's conduct was reported, the hospital initiated a disciplinary action against Dr. Iyengar that resulted in a 90-day suspension of his staff privileges and the filing of an 805 report with the Medical Board.

On February 17, 1995, Dr. Iyengar signed a Stipulation in Settlement, Decision and Order in which he stated that he had carefully read and fully understood the charges, that he was aware of his rights to defend himself under the Government Code, and that:

10. Respondent, having the benefit of counsel, hereby freely, knowingly, intelligently, and voluntarily admits he engaged in unprofessional conduct by forcing unwanted familiarities on two female staff members at Anaheim Memorial Hospital in 1991 and 1992, in violation of Business and Professions Code section 2234. These admissions, which are being made for the sole purpose of settling Case No. D-5680, shall have no force or effect in any other proceeding except: (1) any future proceeding between the Board and respondent ....

The Medical Board revoked Dr. lyengar's certificate to practice medicine, stayed the order of revocation, and placed Dr. Iyengar on five years probation. Conditions of probation required Dr. Iyengar to undergo a psychiatric evaluation, engage in psychotherapy until that condition of probation was no longer deemed necessary,

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submit an educational plan to the Medical Board to heighten his awareness of the effects of sexually offensive conduct on women in the workplace, refrain from forcing unwanted familiarities on females with whom he might have contact at work, and comply with other standard terms and conditions of probation.

4. On May 20, 1998, Administrative Law Judge Stewart A. Judson presided over a hearing on Dr. lyengar's petition for the early terminate probation. During that proceeding, Dr. Iyengar testified that as a result of his "alleged improper conduct" with two female employees 1, his privileges at Anaheim Memorial Hospital were suspended for 90 days. Dr. Iyengar testified he consulted with a psychiatrist and was an inpatient at The Meadows, a behavioral center in Arizona, for a month. Dr. Iyengar testified that he had fulfilled all other terms and conditions of probation.

At the hearing on the petition for the early termination of probation, Dr. Iyengar testified in part:

To put it simply, your Honor, I am sorry. I'm sorry for what happened, and I want to make sure that it will not occur in the future ... I promise that I will not allow these things to occur again, the things that almost put an end to my life, my practice, and my family ....

5. In the Proposed Decision that was adopted by the Medical Board, ALJ Judson found:

Petitioner views his conduct in keeping with the way he was raised. He believes he was insensitive to others' feelings and had no knowledge of the psychology of human boundaries until the events leading to his discipline. He expressed sincere regret for what occurred and assurances that such conduct will not recur.

ALJ Judson determined, "The evidence shows that petitioner is sufficiently rehabilitated at this time to warrant granting the petition."

The Medical Board terminated Dr. lyengar's probation on January 4, 1999.

Dr. lyengar's Background, Education, and Training

6. Dr. Iyengar was born in a remote village in India near the city of Mysore. He described his family as being close and cohesive. He testified that in the culture in which he was raised, it was not uncommon for persons of the opposite sex to hug one

1 At the hearing on his petition for the early termination of probation, Dr. Iyengar testified that in one instance he gave a nurse who was part of the cardiac surgical team a "hug and a peck on the cheek" because he was really pleased with himself, that on another occasion he gave a nurse "a hug and a peck on the cheek" as a polite and courteous gesture, and that "the third instance that is reported, in my opinion, it is a total fabrication, and I don't even know about the third allegation ."

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another and give another a peck on the cheek. Dr. Iyengar testified that following a handshake, he sometimes bends forward at the waist and brings the hands of another to his forehead to show respect.

7. Dr. Iyengar received a Bachelor of Science degree, with a major in Physics and Mathematics, in 1963 from the University of Mysore. He received a degree in Medicine and Surgery in 1967 from Assam Medical College in Dibrugarh, India. Thereafter, he completed an internship at that institution.

After receiving his internship, Dr. Iyengar traveled to rural villages in the Himalayas where he served as a backpack doctor and built a local hospital to serve the underserved indigenous people there.

Dr. Iyengar left India in 1971 and traveled to Canada. He became a surgical resident at Queen's University School of Medicine. He then moved to Houston, Texas, where he trained in cardiovascular and thoracic surgery at the University of Texas Medical School under Dr. Denton Cooley. After returning to Canada in the mid-1970s, Dr. Iyengar worked as a surgeon, conducting open heart and cardiothoracic surgeries nearly every day, as well as serving as a surgical instructor at the University of Saskatchewan.

Dr. Iyengar came to Southern California in 1988. He served as Director of the Department of Cardiovascular Surgery at St. Francis Medical Center in Los Angeles from 1988 to 1990, and was a member of Quality Assurance Committee.

Dr. Iyengar moved to Orange County in 1990 because he felt the St. Francis surgical facility was inadequate. He joined the medical staffs at Anaheim General Hospital (now Anaheim Memorial Medical Center), Fountain Valley Regional Hospital, and several other Orange County hospitals.

8. Dr. Iyengar is a Fellow of the American College of Cardiology, a Fellow of the American College of Chest Physicians, a Fellow of the International College of Angiology, and a member of several other professional organizations. He was on the Board of the Orange County Medical Association, was President of the Indian Medical Association of Southern California, President of the Fountain Valley Rotary International, Chairman of the Indian Medial Association of Southern California Continuing Medical Education, and President of NAVIKA (North American Vishwa Karnataka Association).

9. Dr. Iyengar has been married for many years. He has two grown children, one an attorney and the other an emergency medical technician.

The Incidents Involving SM

1 O. SM, an anesthesiologist, was born and raised in India. In contrast to Dr.

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Iyengar, SM described being raised in a culture in which men and women had virtually no physical contact with one another unless they were married.

SM received her medical degree from Guntur Medical College, Guntur, India, in 1978. She moved to the United States following the completion of a rotating internship and after serving as a Senior Home Officer in the field of Obstetrician and Gynecologist. After arriving in the United States, SM participated in several residencies. She completed a two year residency in Anesthesiology at Maimonides Medical Center in Brooklyn, New York in 1987, and then finished a fellowship in Cardiovascular Anesthesiology.

SM came to Fountain Valley Regional Hospital in July 1988. She has held numerous leadership positions at Fountain Valley. She is currently Chief of Staff at Fountain Valley, Medical Director of the Department of Anesthesiology at Fountain Valley, and President of Fountain Valley Anesthesiology Medical Associates.

SM is board certified in Anesthesiology, and she specializes in Cardiovascular Anesthesiology. She is married to a board certified Cardiologist, who is also from India. SM is a proper, proud, serious, no-nonsense person.

11. SM has known Dr. Iyengar for more than 20 years. While they visited in one another's homes many years ago, they did not become friends. Over the years, Dr. Iyengar put his hand on SM's shoulder and on her waist, which made her feel uncomfortable. Dr. Iyengar also told SM that her voice was sexy and that she "should not kiss so many men." Dr. Iyengar made these comments in a joking fashion, and he told SM, "You know I'm joking, don't take it seriously." Dr. lyengar's comments nevertheless bothered SM. SM complained about Dr. lyengar's conduct to her husband, but she did not confront Dr. Iyengar before 2007.

Between 2000, when Dr. Iyengar arrived at Fountain Valley, and November 2007, SM and Dr. Iyengar worked together in at least a thousand very difficult, lengthy surgical procedures. SM's failure to complain to Dr. Iyengar or to Fountain Valley's administration about Dr. lyengar's behavior and comments did not establish that Dr. Iyengar did not engage in offensive behaviors, that he did not make unsettling comments, or that SM was not disturbed by the interactions; instead, her failure to complain was a measure of her restraint.

12. During a surgery on November 14, 2007, in which SM served as the anesthesiologist, Dr. Iyengar told Dr. Vo, another surgeon on the case, words to the following effect: "You should have seen Dr. [SM] when Dr. Abraham was around - her brassiere got all wet." SM took great offense to this comment, which briefly distracted her full attention from her patient and the procedure. SM told Dr. Iyengar she found his remarks insulting, offensive, and unacceptable. She told him to stop.

13. On November 28, 2007, Dr. Iyengar and SM participated in two very difficult surgeries. During one of the procedures, Dr. Iyengar told SM to provide the

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patient with certain blood products. SM thought doing so was not in the patient's best interest. The patient was under anesthesia at the time. Dr. Iyengar became quite upset, raised his voice, and said in essence: "What the hell are you doing not giving platelets?" SM perceived Dr. lyengar's comment to be rude and unprofessional. SM did not respond and continued to tend to the patient. The surgery was completed without incident.

A couple of days later, SM entered the doctors' dining room in the early afternoon. She saw Dr. Iyengar as he was leaving the dining room. SM approached Dr. Iyengar and told him that she needed to speak with him. SM intended to clear up any misunderstandings. As she began to say, "We were all working very hard the other day .... ", Dr. Iyengar interrupted, put his hand on SM's right shoulder, pulled her close to him, kissed her on the cheek, and said, "I have never kissed you before. I want to take you out and see you get drunk. Do you like Black Label or Blue Label?" SM was stunned. She shoved Dr. Iyengar away. Dr. Iyengar left. SM felt violated.

The Incident Involving HS

14. HS received a bachelor's degree in Nursing in 1971. She became a California licensed registered nurse in 1971. HS worked at Fountain Valley as the Interim Director of Perioperative Services from April 2007 through March 2008. While working at Fountain Valley, HS had frequent contact with Dr. Iyengar.

15. In April 2007, Dr. Iyengar was Chief of Surgery. HS contacted Dr. Iyengar outside the physician's lounge to let him know that she would be out of town that weekend. Dr. Iyengar, who had been speaking to another person, said, "Oh, so he's better looking than me?" HS replied, "Yeah." Then Dr. Iyengar stepped toward HS and said, "You know I'm your one true love" and tried to hug and kiss HS. HS stepped out of the way said, "I'll see you later," and left.

On several other occasions when HS was working at Fountain Valley, Dr. Iyengar patted his hand on the cushion of a sofa he was sitting on and said to HS, "Oh, come here, you are my one true love."

Dr. lyengar's conduct made HS uncomfortable.

The Incident Involving KF

16. KF received her medical degree from Tulane University School of Medicine in New Orleans, Louisiana, in 1994. She is a board certified general surgeon. She is on the medical staffs at Fountain Valley, Orange Coast Memorial Hospital, Long Beach Memorial Medical Center, and Chapman Medical Center. KF works with Peter Le Port, M .D.

KF has known Dr. Iyengar since 2001, when she joined Dr. Le Port's practice.

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17. Sometime in 2007, KF was in the physician's lounge at the same time as Dr. Iyengar. KF was wearing a diamond wedding ring. Dr. Iyengar, who was sitting at a computer, asked KF to come over and show him her hand. KF thought that Dr. Iyengar wanted to look at her wedding ring.

When KF extended her hand, Dr. Iyengar took her hand in his hand and kissed the back of it with his lips and tongue. According to KF, "It kind of freaked me out."

KF pulled her hand away and left the physician's lounge. She returned to Dr. Le Port's clinic. Shortly after she entered the clinic, Dr. Le Port approached her and asked her what was wrong. KF explained what had just occurred.

Corroborating Evidence

18. Reginald Abraham, M.D., a board certified general surgeon and cardiothoracic surgeon, has been on the staff at Fountain Valley since 2004. He has frequent contact with Dr. Iyengar and SM.

He recalled that during a surgery in November 2007, Dr. Iyengar commented in SM's presence that when SM was around Dr. Abraham, her brassiere got wet, or words to that effect. He recalled that SM asked Dr. Iyengar to stop making that kind of comment.

19. SM prepared contemporaneous notes (which she did not provide to the Medical Board until the Friday before the disciplinary hearing) in which she described in detail the hugging incident occurring in the doctors' dining room.

20. A member of the hospital's custodial staff was in the doctors' dining room when the hugging incident involving Dr. Iyengar and SM occurred. She looked up when she heard loud voices and saw SM pushing Dr. Iyengar away.

21. SM told her physician-husband about the hugging incident almost immediately after it happened. SM's physician-husband contacted Dr. Iyengar and told him to never engage in that kind of conduct again. SM's physician-husband's testimony about his interaction with Dr. Iyengar was calm, responsive, and credible. It was not made-up.

22. Dr. Le Port testified that he was working at his clinic when KF arrived and was visibly upset. When Dr. Le Port asked KF what was wrong, KF said she had been talking with Dr. Iyengar and that he had licked the back of her hand.

Or. Jyengar's Testimony Regarding These Incidents

23. Dr. Iyengar denied making the "wet brassiere" comment. His testimony about that matter was deliberately untruthful. Dr. Abraham was present when Dr.

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Iyengar made the "wet brassiere" comment, he heard that comment, and he corroborated SM's account.

24. Dr. Iyengar admitted he attempted to hug SM in the doctors' dining room, but he claimed that SM initiated a hug to which he responded. He testified that he gave SM "a gentle hug on her shoulder" and that SM's hands were on his back of his body during the hug. Dr. Iyengar denied kissing SM, denied telling her he wanted to see her get drunk, and denied any mention of Blue Label or Black Label. His testimony about the kiss was not believable in light of the contemporaneous writing that corroborated SM's account and because of Dr. lyengar's deliberate falsehoods about other factual matters.

25. Dr. Iyengar denied he attempted to hug and kiss HS and he testified that he did not tell her that she was his "one true love." His testimony was not credible because of his deliberate untruthfulness about other factual matters and because of the calm, deliberate and believable manner in which HS delivered her testimony.

26. Dr. Iyengar denied kissing and licking KF's hand. He claimed that he shook her hand to demonstrate his appreciation for KF having voted for him in a hospital election, and that he then put her hand to his forehead as a gesture of respect as is customary in India. He testified that KF must have misunderstood what he was doing. His denial about touching the back of KF's hand with his tongue was deliberately untruthful. KF's testimony was responsive, calm, and thoughtful. Dr. Le Port's unbiased testimony corroborated KF's distress immediately after the incident and her consistent account about what happened.

27. Dr. Iyengar questioned SM, HS, and KF's accounts because they failed to immediately report the incidents. The expert testimony established that disruptive behavior often goes unreported or is not reported in a timely fashion at least 40 percent of the time. The occurrence of delayed reporting and not reporting makes sense because of the stigma that is necessarily attached to accusing a colleague of unprofessional conduct and because of a victim's reluctance to confront the perpetrator. SM, HS, and KF's credibility was not tarnished by late reporting.

Dr. Iyengar denied SM's physician-husband ever spoke to him about the hugging incident. Dr. lyengar's assertion that he did not have a conversation with SM's physician-husband about the hugging incident was simply untrue; that conversation took place.

Dr. Iyengar suggested that Dr. Le Port's testimony about his interaction with KF at the clinic was due to bias resulting from a hospital election several years before in which Dr. Iyengar ran for an office against Dr. Le Port, an election from which Dr. Le Port withdrew. The suggestion that Dr. Le Port was biased and provided false testimony against Dr. Iyengar on that basis was absurd.

The Impact of the Incidents

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28. SM was briefly distracted from her duties as an anesthesiologist when Dr. Iyengar made the "wet brassiere" comment. This resulted in some risk to the patient, who was then under anesthesia.

HS was offended by Dr. lyengar's comments that she was his "one true love."

SM, HS, and KF were offended by Dr. lyengar's comments and attempts to have physical contact with them. These three female health care providers made efforts to keep away from Dr. Iyengar following his engaging in unprofessional conduct.

In SM's case, keeping away from Dr. Iyengar was impossible since she is one of two cardiothoracic anesthesiologists on Fountain Valley's staff. SM has worked next to Dr. Iyengar in surgery more than 300 times since the hugging incident, even though she makes an effort to minimize her contact with Dr. Iyengar as much as possible.

HS no longer works at Fountain Valley, and she no longer needs to avoid Dr. Iyengar.

KF continues to work at Fountain Valley, and she avoids Dr. Iyengar whenever she sees him. She is on call as a surgeon and, thus, it is possible that KF may be required to work with Dr. Iyengar in a medical emergency.

Complainant's Expert Testimony

Suzanne Fidler, M.D.

29. Suzanne Fidler, M.S., is a board certified internist. She holds a law degree and is a Certified Professional in Healthcare Risk Management. She has been employed as a solo medical practitioner, a hospitalist, an attorney, a medical consultant, a patient safety officer, and a director of risk management. Dr. Fidler possesses education, training, experience, and special knowledge in the field of the disruptive physician.

30. Dr. Fidler established that that The Joint Commission2 issued a Sentinel Event Alert concerning disruptive behaviors. Dr. Fidler's training and experience, as

2 Notice is taken that The Joint Commission, formerly the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), is a United States-based not-for-profit organization that accredits more than 19,000 health care organizations and programs in the United States. A majority of state governments recognize Joint Commission accreditation as a condition of licensure and a precondition for the receipt of Medicaid reimbursement. The Joint Commission conducts surveys (investigations) every three years. In support of its mission to improve the quality of health care, The Joint Commission reviews a health care organization's response to sentinel events in the accreditation process.

A sentinel event is an unexpected occurrence involving death or serious physical or psychological injury, or carries a significant chance of a serious adverse outcome in the future without intervention.

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well as the studies mentioned in the Joint Commission's Sentinel Event Alert, established a correlation between disruptive personal behaviors and patient safety in a healthcare setting. The Sentinel Event Alert recommended that hospitals and other health care facilities adopt a disruptive behavior policy to foster patient care and prevent unprofessional conduct that undermines a culture of safety.

31. Dr. Fidler reviewed the investigative report, SM's complaint, and several letters in which Dr. lyengar's conduct with SM, HS, and KF was described. She did not review Fountain Valley's disciplinary investigation, nor did she hear Dr. lyengar's version of the events. Dr. Fidler heard SM testify.

Based on what she reviewed and heard, Dr. Fidler opined that Dr. lyengar's "wet brassiere" comment, his conduct in hugging and kissing SM, his comments to and interaction with HS, and his interaction with KF involved disruptive behavior and involved "general unprofessional conduct." Dr. Fidler believed Dr. lyengar's conduct violated Fountain Valley's bylaws in that it involved rude or abusive conduct toward physicians and other hospital employees. She believed the conduct was in the nature of "sexual harassment" because it involved unwelcome touching. Dr. Fidler believed that Dr. lyengar's alleged conduct, if true, was inconsistent with the conduct expected of a reasonable and prudent physician and that it impeded other professionals from working in an environment that they believed was safe and free from unwanted sexual advances. Dr. Fidler opined that Dr. lyengar's conduct posed a low but clear-cut risk of harm to patients at Fountain Valley and anywhere else that Dr. Iyengar engaged in such disruptive conduct. Dr. Fidler believed that Dr. lyengar's conduct violated American Medical Association standards addressing physicians with disruptive behavior, that is, physicians who engage in personal conduct that negatively affects or might negatively affect patient care. Dr. Fidler conceded that criticism offered in good faith with the aim of improving patient care is not disruptive behavior.

32. On cross-examination Dr. Fidler conceded that delayed reporting was irrelevant to reaching a conclusion that Dr. Iyengar engaged in unprofessional conduct; she admitted that her report did not mention the outcome of Fountain Valley's disciplinary proceeding because she had no knowledge of the outcome; she admitted that she did not contact witnesses herself; and she agreed that she would have liked to have known Dr. lyengar's side of the story. Dr. Fidler did not find Dr. Iyengar guilty of gross negligence, incompetence, or corruption. Dr. Fidler conceded that "different people react differently to the same comments, for example, 'You are a beautiful woman,"' and that every act of disruptive behavior and sexual harassment does not pose a risk of patient harm. Dr. Fidler did not hold herself out to be a psychiatrist, psychologist, or behavioral specialist.

Respondent's Expert Testimony

These events are called "sentinel" because they signal the need for immediate investigation and response.

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Dominick Addario, M.D.

33. Dominick Addario, M.D., a board certified psychiatrist, testified. Dr. Addario has been licensed to practice medicine in California for approximately 40 years. He has served as a Medical Board expert reviewer. He has reviewed sexual harassment claims and has lectured in the area of sexual boundaries.

34. Dr. Addario met with Dr. Iyengar on May 2, 2011, and conducted a two and one-half hour clinical interview. He obtained identifying data and was told about the 2007 incidents. His notes from that interview did not mention of the "wet brassiere" comment. According to Dr. Addario's notes, in describing the hugging incident in the doctors' dining room, Dr. Iyengar told Dr. Addario that "she tried to give me a hug." Dr. Iyengar told Dr. Addario that he questioned SM's motives because he tried to prevent staff physicians from having input on certain committees and because he opposed SM's appointment as Chief of Staff. According to Dr. Addario's notes, Dr. Iyengar said, "I shook hands with [KF], just took [them] to his forehead, a friendly custom. I never touched her with lips. I never knew what a French kiss was." The notes stated that KF did not make a complaint when this occurred. According to Dr. Addario's notes, Dr. Iyengar denied having any issues with HS.

Dr. Addario obtained Dr. lyengar's past psychiatric history, which included Dr. lyengar's participation in a five week inpatient program in 1992 that resulted in a finding that "he was absent pathology." Dr. Addario discussed Dr. lyengar's having attended a PACE boundaries course. According to Dr. Addario's notes, there were no incidents or accusations since Dr. Iyengar attended the PACE course.

Dr. Addario reviewed the 1991 disciplinary records, the Fountain Valley disciplinary records, various treatment records, the Medical Board investigative report, and Dr. lyengar's curriculum vitae. Dr. Addario administered psychological testing, including an MMPl-2, all of which was found to be valid and negative for any psychopathology.

Under the DSM-IV-TR, Dr. Addario made no diagnosis on Axis I (clinical psychiatric syndromes), no diagnosis on Axis II (personality disorders), no diagnosis on Axis Ill (physical disorders), noted a "hospital staff issue" on Axis IV (psychological stressors), with mild stress, and a GAF of 85 on Axis V (global assessment functioning during the past year).

35. Dr. Addario testified, "A hug is a common everyday occurrence that has a multitude of meanings - a hug is often impulsive and spontaneous." Based upon his review of all materials, Dr. Addario did not believe that Dr. lyengar's hug with SM involved unprofessional conduct because there was no sexual motivation and it did not impact patient care.

With regard to Dr. lyengar's interaction with HS, Dr. Addario observed that HS did not complain. He believed that the comment" You are the love of my life" was

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solicitous, not sufficiently serious to signal sexual harassment, and did not involve unprofessional conduct because patient harm did not result. At most, he believed it was a "low level offense" that demonstrated poor social skills with an individual who was not a patient.

With regard to the incident involving KF, Dr. Addario testified that he was unaware of any sexual motivation on Dr. lyengar's part even if Dr. Iyengar kissed KF's hand. He believed that the conduct was cultural and was insignificant because KF did not complain about it. He believed it was not unprofessional conduct because there was no patient harm. Dr. Addario believed that Dr. lyengar's "explanation was plausible."

Dr. Addario concluded that Dr. Iyengar was not preoccupied with the need for sexual gratification and that "cultural problems got him into trouble." "Dr. Iyengar struggles with cultural issues that obviously make people uncomfortable, but he is not predatory." Dr. Addario believed that the sanctions imposed by Fountain Valley's MEC gained Dr. lyengar's attention, that Dr. Iyengar was not self-destructive, and the sanctions imposed by the MEC were sufficient to curtail similar conduct in the future. Dr. Addario essentially testified, ''This is a human resources case rather than a Medical Board disciplinary matter."

On cross-examination, Dr. Addario defined general unprofessional conduct to include behavior "so horrendous as to disrupt the workplace and have an impact on patient care." Dr. Addario agreed that patient harm was not required to find that a physician had engaged in unprofessional conduct. Dr. Addario agreed that persons who engage in sexual harassment are not necessarily sexual predators.

Dr. Addario believed that Dr. Iyengar crossed social boundaries because "You carry your culture with you." He admitted that he was not an expert in Indian culture. He believed Dr. Iyengar might benefit from a brief course of psychotherapy.

Elizabeth Becker, LCSW

36. Elizabeth Becker, LCSW, is a licensed clinical social worker who owns and operates Inner Solutions For Success, an entity offering educational and behavioral programs to medical professionals identified as having engaged in unprofessional conduct. Ms. Becker provides education, training, and coaching in the areas of professional boundaries, disruptive behavior, conflict resolution, and communication. Ms. Becker previously served as the Director of PACE's Behavioral Programs.

37. Ms. Becker evaluated Dr. Iyengar in 2008 as a result of a referral from the Fountain Valley's Chief of Staff. Dr. Iyengar told Ms. Becker that similar allegations were made which resulted in his previously being placed on probation to the Medical Board.

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Dr. Iyengar participated in a three-day educational and training course in April 2008 that included small group meetings and required reading. Dr. Iyengar met all course objectives and satisfactorily completed the training and assignments. At the conclusion of the program, for which CME credit was given, Ms. Becker suggested that Dr. Iyengar implement and adhere to a Commitment to Change Plan developed in the program, refer to the required reading as required, participate in follow-coaching, and seek support and supervision from colleagues.

Dr. Iyengar met with Ms. Becker in May 2011 and then again a week before the hearing at the request of Dr. lyengar's attorneys. In connection with the May 2011 visit, Ms Becker obtained a history and interviewed Dr. Iyengar. She observed that Dr. Iyengar participated in the follow-up program, which consisted of four quarterly coaching calls. He told Ms. Becker that he had adhered to the Commitment to Change Plan. He denied being involved in any other therapy or counseling. Dr. Iyengar retook the skills test he previously took in 2008 and "it appears that Dr. Iyengar has retained most of what he learned in the boundary program he attended in 2008."

Ms. Becker believed that Dr. Iyengar was similar to many physicians who had been accused of boundary violations and that Dr. Iyengar possessed several factors that placed him at risk: cultural factors, including possible gender bias; a lack of awareness about the needs and perspectives of others; ineffective communication skills; and a lack of understanding about the power differential that exists between physicians and other health care professionals. Dr. Iyengar expressed feelings of confusion, surprise, shame, embarrassment and remorse over the most recent charges, and he took responsibility for his misconduct. Ms. Becker saw no benefit in referring Dr. Iyengar for counseling or therapy. She believed Dr. Iyengar was at low risk to reoffend. Ms. Becker believed bi-monthly coaching might benefit Dr. Iyengar.

38. On cross-examination, Ms. Becker observed that Dr. Iyengar had never misbehaved with a patient; that the incidents were not very severe in nature (consisting mostly of juvenile, inappropriate comments to women in positions of power); and that the frequency and severity of Dr. lyengar's misconduct did not suggest a significant risk of harm to patients. She mentioned that health care is a team effort and that many physicians are unaware of that concept.

The Fountain Valley Discipline

39. On December 13, 2008, the Fountain Valley Chief of Staff received a letter from SM's attorney that alleged that Dr. Iyengar sexually harassed SM. The letter requested Fountain Valley investigate and take corrective action.

Fountain Valley's Disruptive Behavior Policy required the Chief of Staff to investigate. An ad hoc committee was formed and commenced an investigation. Ten interviews were conducted, including interviews of SM and Dr. Iyengar.

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Dr. Iyengar told the MEC that he did not make the "wet brassiere" comment. He told the MEC that SM approached him in the doctors' dining room, that he thought he and SM were going to have a mutual hug, that SM had hugged him in the past, and that while he hugged SM, he did not kiss her or tell her that he wanted to get her drunk. Dr. Iyengar said that SM had problems with every other heart surgeon on the staff.

Fountain Valley's disciplinary committee concluded that the conduct SM complained about "likely occurred" and that "the most credible witnesses were those that verified the conduct alleged by [SM.]" The disciplinary committee concluded that Dr. Iyengar engaged in sexual harassment.3

Fountain Valley imposed disciplinary action upon Dr. Iyengar that included the issuance of a formal reprimand; a warning that it was "imposing a zero-tolerance standard, meaning that no actual incident of sexual harassment, whether in word or conduct ... will be tolerated"; a requirement that Dr. Iyengar write letters of apology to the MEC and to SM; a requirement that he complete a professional boundaries course with Elizabeth Becker, LCSW; and a requirement that he be removed as Department Chair. Fountain Valley also filed an 805 report with the Medical Board.

Other Evidence

40. Dr. Abraham testified that Dr. Iyengar proclaimed to others during surgeries and in the intensive care unit that the nurses liked Dr. Abraham because he was young and handsome. These comments very much bothered Dr. Abraham, who quietly endured the remarks without confronting Dr. Iyengar. Dr. Iyengar testified that he was unaware that his gratuitous comments involving nurses and Dr. Abraham perturbed Dr. Abraham until this disciplinary hearing.

41. Dr. Iyengar testified that he stopped making potentially disturbing comments to women after Fountain Valley imposed discipline. In rebuttal, complainant called Anouki Karu, M.D., a board eligible anesthesiologist who has provided

3 The MEC's factual findings and legal conclusions are not probative in this proceeding other than to provide a factual background. While collateral estoppel may be applied to decisions made by administrative agencies when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate (People v. Sims (1982) 32 Cal.3d 468, 479), the doctrine of collateral estoppel applies only when several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. ( Gikas v. Zolin (1993) 6 Cal.4th 841, 849.)

Here, the MEC's decision is not binding because testimony was not taken under oath, there was no right to confrontation and cross-examination, the standard of proof in the MEC proceeding was less than the clear and convincing standard that applies in this proceeding, and the issues to be decided by the Medical Board in this proceeding are not identical to the issues that were decided by the MEC.

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anesthesiology services in cardiothoracic procedures at Fountain Valley since August 2011.

Dr. Karu first met Dr. Iyengar when she was applying for an anesthesiology position at Fountain Valley. Dr. Karu asked Dr. Iyengar, whom she did not know, where she could find Fountain Valley's Chief of Staff. Dr. Iyengar was friendly and flirtatious, asking her, "Are you lost, little girl? Can I help you?" When Dr. Karu told him who she was and why she wanted to meet with the Chief of Staff, Dr. lyengar's attitude changed.

Dr. Karu has been in surgeries with Dr. Iyengar at least a dozen times since then. On almost every occasion, towards the middle or the end of the procedure, when the patient has been under anesthesia, Dr. Iyengar has said in a voice loud enough for everyone in the OR to hear, "Ladies and gentlemen, Dr. Karu has a date later this evening and we have to finish" or words to that effect. Dr. Karu told Dr. Iyengar that his comments were offensive and inappropriate, and she asked him to stop. When he did not do so, Dr. Karu realized that Dr. Iyengar was not listening and she stopped protesting. Dr. lyengar's comments have annoyed Dr. Karu and have made her uncomfortable.

42. Respondent called a number of character witnesses in this disciplinary proceeding, all of whom were men, all of whom claimed to be unaware of Dr. Iyengar making unnecessary comments with sexual overtones, and most of whom extolled Dr. lyengar's virtues as a physician and surgeon and as person of good character. The testimony is summarized below:

A. Santosh Mohanty, M.D., has known Dr. Iyengar for years. He believed Dr. Iyengar was a skillful surgeon who possesses excellent clinical judgment. Dr. Mohanty believed that even though Dr. Iyengar was not always aware of appropriate personal boundaries and sometimes made stupid comments, Dr. Iyengar was not a threat to patient safety.

B. Ajeet R. Singhvi, M.D., praised Dr. Iyengar for his leadership in founding and maintaining Indian physician organizations. Dr. Signhvi had never seen Dr. Iyengar behave in an inappropriate fashion. He was not aware that Dr. Iyengar had been on probation to the Medical Board.

C. Terence Martin O'Heany, M.D., was present in the doctors' dining room the day of the incident involving SM. He did not observe a hug. SM did not complain to him about the incident later that day. D. Surinder Thind, M.D., was Fountain Valley's Chief of Staff in November 2007 and during the Fountain Valley investigation. Dr. Thind had never seen Dr. Iyengar engage in any kind of inappropriate conduct.

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E. Mark Miller, M.D., practices at Anaheim Memorial Medical Center. He had worked with Dr. Iyengar in surgery and, more frequently, he had worked with him in several professional organizations. Dr. Miller believed Dr. Iyengar possesses excellent clinical skills and interacts with others in an appropriate manner.

F. It was stipulated that if Quang Vo, M.D., were called to testify, he would testify that Dr. Iyengar joked around with SM and that he once had heard Dr. Iyengar say that "[SM] likes other doctors she works with more than us" but not in a sexual manner. Dr. Vo heard SM say. "Stop it." Dr. Vo does not pay attention to Dr. lyengar's interactions with others.

The Disciplinary Guidelines

part: 43. The Medical Board's preface to its current disciplinary guidelines states in

Business and Professions Code section 2229 mandates protection of the public shall be the highest priority for the Medical Board and for the Administrative Law Judges of the Medical Quality Hearing Panel. Section 2229 further specifies that, to the extent not inconsistent with public protection, disciplinary actions shall be calculated to aid in the rehabilitation of licensees. To implement the mandates of section 2229, the Board has adopted the Manual of Model Disciplinary Orders and Disciplinary Guidelines (guidelines), 10th Edition. Consistent with the mandates of section 2229, these guidelines set forth the discipline the Board finds appropriate and necessary for the identified violations. In addition to protecting the public and, where not inconsistent, rehabilitating the licensee, the Board finds that imposition of the discipline set forth in the guidelines will promote uniformity, certainty and fairness, and deterrence, and, in turn, further public protection.

The Board expects that, absent mitigating or other appropriate circumstances such as early acceptance of responsibility and demonstrated willingness to undertake Board-ordered rehabilitation, Administrative Law Judges hearing cases on behalf of the Board and proposed settlements submitted to the Board will follow the guidelines, including those imposing suspensions. Any proposed decision or settlement that departs from the disciplinary guidelines shall identify the departures and the facts supporting the departure.

44. The clear and convincing evidence established three instances of general unprofessional conduct. For general unprofessional conduct, the guidelines recommend:

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Maximum penalty: Revocation

Minimum penalty: Stayed revocation, five years probation. In addition to standard terms and conditions of probation, special conditions of probation for these offenses may include: Education Course; Prescribing Practices Course; Medical Record Keeping Course; Ethics Course; Clinical Training Program; Oral or Written Examination (preferably Condition Precedent); Monitoring-Practice/Billing; Prohibition Against Solo Practice; and Prohibited Practice.

Disciplinary Arguments

45. Complainant's counsel argued that Dr. lyengar's unsolicited behaviors and rude comments deeply offended the female victims; that he engaged in conduct that he knew was inappropriate (which is the reason he lied about it); that he expressed no remorse for the grief he caused; and that his misconduct disturbed the victims and negatively impacted the quality of care provided in a hospital setting where the avoidance of patient risk was paramount. Complainant's counsel described Dr. lyengar's behavior as "stupid, offensive conduct" involving an abuse of power. Complainant's counsel argued that Dr. lyengar's long history of similar misconduct established that Dr. Iyengar is incapable of controlling himself despite the imposition of sanctions. Complainant's counsel argued that Dr. Iyengar had lied to everyone about the nature and extent of his misconduct - to hospital disciplinary committees, to colleagues, to psychiatrists and other evaluators, and to administrative law judges - and that he simply cannot be trusted. Fountain Valley's zero-tolerance policy did not stop Dr. Iyengar from making inappropriate comments about Dr. Abraham and Dr. Karu in the presence of others during surgeries or in the intensive care unit. Complainant's counsel argued that imposing probation will not adequately protect the public even if a full time chaperone were required as a condition of probation. Complainant's counsel argued that an outright revocation of Dr. lyengar's certificate was the only measure of discipline that will protect the public.

46. Respondent's counsel argued that the severity and frequency of Dr. lyengar's distasteful conduct was at issue, and that the conduct was neither momentous nor frequent. Only four instances of misconduct were alleged; the alleged misconduct occurred more than five years ago; and the misconduct did not involve patients. There were no immediate complaints by the alleged victims. Respondent's counsel observed that Dr. Addario, who has served as a Medical Board consultant for many years, and Ms. Becker, who has run PACE's highly regarded behavioral health program, were unable to conclude that Dr. lyengar's behavior involved a risk of patient harm. SM's extreme sensitivity to Dr. lyengar's offhanded and awkward social interactions should not be the measure of appropriate behavior or the basis for discipline. There was no evidence that Dr. lyengar's conduct was motivated for the purpose of sexual gratification or that he is a sexual predator; the evidence was to the contrary. Respondent's counsel argued that the accusation should be dismissed because unprofessional conduct, i.e. conduct involving patient harm, was not established;

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however, if it were determined that Dr. Iyengar engaged in unprofessional conduct, then, at most, a letter of public reprimand should be issued, perhaps with a recommendation that Dr. Iyengar engage in psychotherapy or undergo coaching.

Conclusions

47. Dr. Iyengar engaged in unprofessional conduct by making the "wet brassiere" comment, which was aggravated by the fact that he and SM were involved in a surgical procedure when he made the comment. His immature comment briefly distracted SM, which involved an actual but minor risk of harm to the patient who was then under anesthesia. Dr. Iyengar also engaged in unprofessional conduct by hugging and kissing SM in the doctors' dining room, and by making a comment to the effect that he wanted to see her get drunk. Dr. Iyengar engaged in unprofessional conduct by attempting to hug and kiss HS and by telling her that she was his one true love. Finally, Dr. Iyengar engaged in unprofessional conduct by kissing and licking the back of KF's hand. No patient was present when the last three incidents occurred, and Dr. lyengar's unprofessional conduct did not result in a risk of immediate patient harm.

No actual patient harm was established. In each instance, the victim of Dr. lyengar's misconduct was a female health care provider with whom Dr. Iyengar should have maintained a strictly professional relationship. No incident evinced frankly predatory sexual misconduct, but each incident involved Dr. Iyengar crossing acceptable social boundaries for reasons that are not easily comprehended.

Actual patient harm was not required to establish unprofessional conduct. As Ms. Becker observed, health care is a team effort. Disruptive behavior that belittles other members of the team, or intimidates other team members, or interferes with the team's mission to provide patients with the best care humanly possible should not be tolerated. Ignoring unprofessional conduct encourages such behavior.

Dr. Iyengar, a highly skilled cardiothoracic surgeon who held many leadership positions at Fountain Valley, possessed immense powers. He abused his authority by making the "wet brassiere" comment about SM when they were involved in a surgery; he abused his authority by seeking to hug and kiss HS, a nurse, and by telling her she was his one true love, an insincere and inane comment; and he abused his authority by licking the back of a more junior surgeon's hand, unfathomable behavior. Without doubt, Dr. lyengar's unprofessional conduct contributed to the development of a hostile work environment at Fountain Valley and, to some extent, posed a risk of harm to patient care. Dr. lyengar's unprofessional conduct established his unfitness to practice without some remedial action being taken by the Medical Board to memorialize and curb that conduct.

This is the second time in his career that Dr. lyengar's unprofessional conduct towards female health care providers has been brought to the Medical Board's attention. As a result of the discipline at Anaheim Memorial Hospital more than a decade ago, Dr. Iyengar was suspended from the staff for 90 days, underwent inpatient

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treatment at The Meadows for 30 days, and was reported to the Medical Board. The Medical Board placed Dr. Iyengar on probation for five years, ordered him to undergo a psychiatric evaluation and psychotherapy, required him to submit an educational plan to heighten his awareness of the effects of sexually offensive conduct, and directed him to refrain from forcing unwanted familiarities on females with whom he might have contact at work. In 2007, and as a result of the unprofessional conduct giving rise to this disciplinary matter, Fountain Valley required Dr. Iyengar to complete a boundaries course, write letters of apology, and resign from a leadership position. One would have hoped that Fountain Valley's imposition of such discipline would be sufficient to result in Dr. Iyengar realizing that gratuitous comments about another colleague's attractiveness to the other sex or dating habits are not funny.

But after the Fountain Valley discipline was imposed, Dr. Iyengar continued to make comments during surgeries and in the ICU about nurses being attracted to Dr. Abraham in Dr. Abraham's presence and he made comments during surgeries about Dr. Karu's dating practices. These comments were unprofessional, disruptive, and distracting. Dr. lyengar's completion of a professional boundary program did not yield a permanent solution.

Dr. lyengar's personal comments have caused others great distress and his unsolicited efforts to hug and kiss female colleagues were unwelcome. His behavior is in poor taste and offensive, but it is not unlawful and it is not frequent.

Dr. Iyengar was less than candid in his testimony. He minimized and misrepresented his conduct in the incidents involving SM and KF, and he denied any wrongdoing related to HS. Dr. Iyengar, throughout this disciplinary matter, deliberately misrepresented factual matters in an effort to benefit himself. The promises he made in this proceeding - that he has learned his lesson and will never engage in similar conduct again - were made before.

It is impossible to prevent humans from engaging in conduct that others will find disruptive, inappropriate, or offensive on occasion. Sometimes humans are overly sensitive and sometimes humans lack tact or impulse control. What is acceptable to one may be unacceptable to another.

Dr. lyengar's unprofessional conduct does not merit an outright revocation. The evidence does not suggest he suffers from a psychopathology. He simply is insensitive and immature. Requiring him to complete another boundary class will not change him; doing so has not proven effective in the past. The only stimulus to which Dr. Iyengar seems to respond is a direct threat, which almost always results in his promise that he will not engage in misconduct again which is followed by a period of good behavior.

The Board believes ·that disciplinary action must be tailored to gain and keep Dr. lyengar's attention and to inform him that the Medical Board views these transgressions in a serious light, especially given Respondent's past history with the Board.

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The Board concludes that imposing a 30-day actual suspension that prohibits Dr. Iyengar from practice of medicine, coupled to a five-year probationary term with standard terms and conditions, will be sufficient to gain and retain his attention. The Board expects the Respondent to recognize that the behavior described herein is not professional and that the continuation of such behavior may lead to further action on the part of the Board.

It is hoped that the period of suspension will allow Respondent to gain some insight into his responsibility to act professionally - insight that the Board believes is not currently present. Respondent's testimony at oral argument clearly detailed the surgical events that led to the episode with SM in the physicians' dining room at Fountain Valley Hospital. However, Respondent did not fully embrace and accept his role and responsibility in the encounter that followed the surgery. This proceeding and decision aren't about the timely administration of platelets; it's about professionalism.

Admittedly, the measure of discipline proposed herein is inconsistent with the disciplinary recommendations set forth in the Board's guidelines because the guidelines do not call for a term of suspension. However it is appropriate given the nature and extent of Dr. lyengar's proven misconduct. The probationary terms and conditions will not include optional conditions, as Respondent has taken remedial steps as a result of the Fountain Valley discipline and the opinions of two respected experts who testified that Dr. Iyengar does not suffer from a psychopathology and does not currently pose a direct risk of harm to patients.

48. Respondent suggests, in his written argument, that the discipline imposed by Fountain Valley Regional Hospital is sufficient. The Board, cognizant of its statutory responsibility to protect the public, does not cede its authority to that body, as Respondent could elect to practice elsewhere in the state.

LEGAL CONCLUSIONS

The Standard of Proof

1. The standard of proof in an administrative action seeking to suspend or revoke a physician's certificate is clear and convincing evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.) Clear and convincing evidence requires a finding of high probability; the evidence must be so clear as to leave no substantial doubt, and 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.)

Purpose of Physician Discipline

2. The purpose of the Medical Practice Act is to assure the high quality of

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medical practice. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574.) Conduct forming a basis for a revocation or a suspension must demonstrate an unfitness to practice. (Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1416.)

The Imposition of Physician Discipline

3. Business and Professions Code section 2227 provides in part:

A licensee whose matter has been heard by an administrative law judge of the Medical Quality Hearing Panel .... and who is found guilty ... may, in accordance with the provisions of this chapter:

(1) Have his or her license revoked upon order of the board.

(2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board.

(3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board.

(4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses approved by the board.

(5) Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative law judge may deem proper ...


(a) Protection of the public shall be the highest priority for the Division of Medical Quality ... and administrative law judges of the Medical Quality Hearing Panel in exercising their disciplinary authority.

(b) In exercising his or her disciplinary authority an administrative law judge of the Medical Quality Hearing Panel. .. shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence.

(c) It is the intent of the Legislature that the division ... and the enforcement program shall seek out those licensees who have demonstrated deficiencies in competency and then take those actions as are indicated, with priority given to those measures, including further education, restrictions from practice, or other means, that will remove

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those deficiencies. Where rehabilitation and protection are inconsistent, protection shall be paramount.

Applicable Disciplinary Statute


The Division of Medical Quality shall take action against any licensee who is charged with unprofessional conduct ....

General Unprofessional Conduct

6. The Medical Practice Act mandates the Board to take action against any holder of a medical certificate who is guilty of unprofessional conduct. Section 2234 [previously Section 2361] provides that "(u)nprofessional conduct includes, but is not limited to" certain enumerated conduct. This does not mean, however, that an overly broad connotation is to be given the term "unprofessional conduct;" it must relate to conduct which indicates an unfitness to practice medicine. Unprofessional conduct is that conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574-575,)

Cause Exists to Impose Discipline

7. Cause exists under Business and Professions Code section 2234 to impose discipline. Clear and convincing evidence established that Dr. Iyengar engaged in the following unprofessional conduct: (1) on November 14, 2007, during a surgical procedure in which SM served as the anesthesiologist, Dr. Iyengar told Dr. Vo, another surgeon in the OR, words to the following effect: "You should have seen Dr. [SM] when Dr. Abraham was around - her brassiere got all wet."; (2) in late November 2007, in the doctors' dining room, when SM was speaking to Dr. Iyengar, Dr. Iyengar interrupted SM, put his hand on SM's right shoulder, pulled her close to him, kissed her on the cheek, and said, "I have never kissed you before. I want to take you out and see you get drunk. Do you like Black Label or Blue Label?"; (3) in April 2007, when Dr. Iyengar was Chief of Surgery, HS contacted Dr. Iyengar outside the physician's lounge to let him know that she would be out of town that weekend, after which Dr. Iyengar said, "Oh, so he's better looking than me?" and stepped toward HS and said, "You know I'm your one true love" and tried to hug and kiss HS; (4) on several other occasions when HS was working at Fountain Valley, Dr. Iyengar patted his hand on the cushion of a sofa he was sitting on and said to HS, "Oh, come here, you are my one true love."; and (5) sometime in 2007, when KF was in the physician's lounge, Dr. Iyengar asked KF to come over and show him her hand, after which Dr. Iyengar took KF's hand in his hand and kissed the back of it with his lips and tongue. This misconduct was contrary to Fountain Valley's bylaws relating to disruptive behavior and was unbecoming to a member in good standing in the medical profession. It demonstrated an unfitness to practice medicine, albeit relatively slight.

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The Appropriate Measure of Discipline

8. Dr. lyengar's license shall be suspended from the practice of medicine for thirty (30) consecutive days and he shall be placed on a five-year term of probation with standard terms and conditions.

ORDER

Physician's and Surgeon's Certificate No. C 42391 issued to Sridhara Iyengar, M.D., is hereby revoked; however, the revocation is stayed and the Respondent is placed on probation for a period of five (5) years upon the following terms and conditions:

1. Actual Suspension

As part of probation, Respondent is suspended from the practice of medicine for thirty (30) days beginning the sixteenth (16th) day after the effective date of this decision.

2. Notification

Within seven (7) days of the effective date of this Decision, the 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(s) in hospitals, other facilities or insurance carrier.

3. Supervision of Physician Assistants

During probation, respondent is prohibited from supervising physician assistants.

4. 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, and other orders.

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5. Quarterly Declarations

Respondent shall submit quarterly declarations under penalty of perjury 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.

6. General Probation Requirements

Compliance with Probation Unit

Respondent shall comply with the Board's probation unit and all terms and conditions of this Decision.

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 writing to the Board or its designee. Under no circumstances shall a post office box serve as an address of record, except as allowed by Business and Professions Code section 2021(b).

Place of Practice

Respondent shall not engage in the practice of medicine in respondent's or patient's place of residence, 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.

Travel or 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 last, more than thirty (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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7. 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.

8. Non-practice While on Probation

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 to practice. Non-practice is defined as any period of time respondent is not practicing medicine in California 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. All time spent in an intensive training program which has been approved by the Board or its designee shall not be considered non-practice. Practicing medicine in another state of the 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 not be considered as a period of non-practice.

In the event respondent's period of non-practice while on probation exceeds 18 calendar months, respondent shall successfully complete a clinical training 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 (2) years.

Periods of non-practice will not apply to the reduction of the probationary term. Periods of non-practice 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; and General Probation Requirements.

9. 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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10. 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 Revoke Probation, or an Interim Suspension Order is filed against respondent during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final.

11. 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 or her 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 formal acceptance 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.

12. 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.

This Decis.ion shall become effective on N 0 v ember 1 6' 201 2

IT IS SO ORDERED this 1 9th day of o c t o b e r J 2012.

Barbara Yaroslavs Panel A

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In the Matter of Accusation Against: ) ) ) ) ) ) ) ) )

Sridhara Iyengar, M.D.

Physician's & Surgeon's Certificate No: C42391

Respondent

Case No.: 04-2008-190047

OAH No.: 2010090645

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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, including in particular, argument directed to the question of whether the proposed Order 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 Kelli Norden and Associates, 11726 San Vincente Blvd, Suite 205 . The telephone number is (310) 820-7733

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 1364.32 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 27, 2012

MEDICAL BOARD OF CALIFORNIA 2005 Evergreen Street, Suite 1200 Sacramento, CA 95815-3831 916-263-2442 Attention: Hye Rim Park

.. ·~~ Shelton Duruisseau, Ph.D., Chair Panel A



In the Matter of the Accusation Against: Case No. 02-2008-19004 7

SRIDHARA IYENGAR, M.D. OAH No. 2010090645

Physician's and Surgeon's Certificate No. C42391

Respondent.

PROPOSED DECISION

James Ahler, Administrative Law Judge, Office of Administrative Hearings, State of California, heard this matter on June 4 through 7, 2012, in San Diego, California.

Sanford H. Feldman, Deputy Attorney General, Department of Justice, State of California, represented complainant, the Executive Director of the Medical Board of California, Department of Consumer Affairs, State of California.

Carlo Coppo and David M. Balfour, Attorneys at Law, represented respondent, Sridhara Iyengar, M.D., who was present throughout the administrative hearing.

The matter was submitted on June 7, 2012.

SUMMARY

Dr. Iyengar, a cardiothoracic surgeon, engaged in disruptive behavior at Fountain Valley Medical Center in 2007 during separate interactions with three female healthc'are professionals. Dr. Iyengar's unprofessional conduct was thoughtless, juvenile, and crude. His uncalled-for comments and boorish behavior did not result in actual patient harm, but it disrupted the hospital environment and created considerable ill will. The recipients of Dr. Iyengar's uncouth comments and offensive interactions have come to realize that Dr. Iyengar is an immature and bothersome man. About ten years ago, Dr. Iyengar was on probation to

the Medical Board for forcing "unwanted familiarities" on two female staff members at another hospital. Something must be done.

Imposing a 90 day actual suspension will gain Dr. Iyengar's attention, and a remediation is possible provided the order of suspension is coupled with a letter of public reprimand that clearly and specifically advises Dr. Iyengar of the limitations and restrictions that apply in his interactions with colleagues.

FACTUAL FINDINGS

Jurisdictional Matters

1. On August 6, 2010, complainant, Linda K. Whitney, the Executive Director of the Medical Board of California, Department of Consumer Affairs, State of California, signed Accusation Case No. 02-2008-19004 7. The accusation alleged that respondent, Sridhara Iyengar, M.D., engaged in general unprofessional conduct in his interactions with three female health care providers. The accusation and other jurisdictional documents were served on Dr. Iyengar.

Dr. Iyengar, through counsel, filed a notice of defense and an amended notice of defense. The amended notice of defense alleged, "Under Government Code§ 11506(a)(2), Respondent objects to the accusation upon the ground that it does not state acts or omissions upon which the agency may proceed."

On June 4, 2012, the record in this disciplinary proceeding was opened. Jurisdictional documents were presented. Respondent's motion to dismiss the accusation on the grounds of laches was denied without prejudice because prejudice was not established. Respondent's motion to exclude evidence of his prior discipline and to exclude a transcript obtained from a 1998 hearing on his motion for the early termination of probation was denied. Respondent's motion to strike paragraph 7 ( e) of the accusation was granted because the allegations contained therein were vague, indefinite and uncertain. Respondent's motion to exclude hearsay evidence was granted if the hearsay evidence was not the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs or if the hearsay evidence was offered for some purpose other than to supplement or explain admissible evidence on which a factual finding could be based. Respondent's motion to exclude the testimony of complainant's expert witness was denied without prejudice.

On June 4 through June 7, 2012, sworn testimony and documentary evidence was received.

On June 7, 2012, closing arguments were given; the record was closed; and the matter was submitted.

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License Status

2. On February 1, 1988, the Medical Board issued Physician's and Surgeon's Certificate No. C 42391 to Sridhara K. S. Iyengar, M.D. Ce1iificate No. C 42391 is current and is renewed through September 30, 2013. License History

3. On February 25, 1994, Accusation No. D-5680 was filed with the Medical Board. It alleged, among other matters, that in 1991 and 1992, Dr. Iyengar attempted to kiss nurse RH, kissed nurse RH, and kissed nurse CC at Anaheim General Hospital; that the two nurses did not consent to Dr. Iyengar's advances; and that after Dr. Iyengar's conduct was reported, the hospital initiated a disciplinary action against Dr. Iyengar that resulted in a 90-day suspension of his staff privileges and the filing of an 805 report with the Medical Board.

On February 17, 1995, Dr. Iyengar signed a Stipulation in Settlement, Decision and Order in which he stated that he had carefully read and fully understood the charges, that he was aware of his rights to defend himself under the Government Code, and that:

10. Respondent, having the benefit of counsel, hereby freely, knowingly, intelligently, and voluntaril¥ admits he engaged in unprofessional conduct by forcing unwanted familiarities on two female staff members at Anaheim Memorial Hospital in 1991 and 1992, in violation of Business and Professions Code section 2234. These admissions, which are being made for the sole purpose of settling Case No. D-5680, shall have no force or effect in any other proceeding except: ( 1) any future proceeding between the Board and respondent ....

The Medical Board revoked Dr. Iyengar's certificate to practice medicine, stayed the order ofrevocation, and placed Dr. Iyengar on five years probation. Conditions of probation required Dr. Iyengar to undergo a psychiatric evaluation, engage in psychotherapy until that condition of probation was no longer deemed necessary, submit an educational plan to the Medical Board to heighten his awareness of the effects of sexually offensive conduct on women in the workplace, refrain from forcing unwanted familiarities on females with whom he might have contact at work, and comply with other standard terms and conditions of probation.

4. On May 20, 1998, Administrative Law Judge Stewai1 A. Judson presided over a hearing on Dr. Iyengar's petition for the early terminate probation. During that proceeding, Dr. Iyengar testified that as a result of his "alleged improper conduct" with two female employees 1

, his privileges at Anaheim Memorial Hospital were suspended for 90 days. Dr.

At the hearing on his petition for the early termination of probation, Dr. Iyengar testified that in one instance he gave a nurse who was paii of the cardiac surgical

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Iyengar testified he consulted with a psychiatrist and was an inpatient at The Meadows, a behavioral center in Arizona, for a month. Dr. Iyengar testified that he had fulfilled all other terms and conditions of probation.

At the hearing on the petition for the early termination of probation, Dr. Iyengar testified in part:

found:

To put it simply, your Honor, I am sorry. I'm sorry for what happened, and I want to make sure that it will not occur in the future ... I promise that I will not allow these things to occur again, the things that almost put an end to my life, my practice, and my family ....

5. In the Proposed Decision that was adopted by the Medical Board, ALJ Judson

Petitioner views his conduct in keeping with the way he was raised. He believes he was insensitive to others' feelings and had no knowledge of the psychology of human boundaries until the events leading to his discipline. He expressed sincere regret for what occurred and assurances that such conduct will not recur.

ALJ Judson determined, "The evidence shows that petitioner is sufficiently rehabilitated at this time to warrant granting the petition."

The Medical Board terminated Dr. Iyengar's probation on January 4, 1999.

Dr. Iyengar 's Background, Education, and Training

6. Dr. Iyengar was born in a remote village in India near the city of Mysore. He described his family as being close and cohesive. He testified that in the culture in which he was raised, it was not uncommon for persons of the opposite sex to hug one another and give another a peck on the cheek. Dr. Iyengar testified that following a handshake, he sometimes bends forward at the waist and brings the hands of another to his forehead to show respect.

7. Dr. Iyengar received a Bachelor of Science degree, with a major in Physics and Mathematics, in 1963 from the University of Mysore. He received a degree in Medicine and Surgery in 1967 from Assam Medical College in Dibrugarh, India. Thereafter, he completed an internship at that institution.

team a "hug and a peck on the cheek" because he was really pleased with himself, that on another occasion he gave a nurse "a hug and a peck on the cheek" as a polite and comieous gesture, and that "the third instance that is reported, in my opinion, it is a total fabrication, and I don't even know about the third allegation."

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After receiving his internship, Dr. Iyengar traveled to rural villages in the Himalayas where he served as a backpack doctor and built a local hospital to serve the underserved indigenous people there.

Dr. Iyengar left India in 1971 and traveled to Canada. He became a surgical resident at Queen's University School of Medicine. He then moved to Houston, Texas, where he trained in cardiovascular and thoracic surgery at the University of Texas Medical School under Dr. Denton Cooley. After returning to Canada in the mid-1970s, Dr. Iyengar worked as a surgeon, conducting open heart and cardiothoracic surgeries nearly every day, as well as serving as a surgical instructor at the University of Saskatchewan.

Dr. Iyengar came to Southern California in 1988. He served as Director of the Department of Cardiovascular Surgery at St. Francis Medical Center in Los Angeles from 1988 to 1990, and was a member of Quality Assurance Committee.

Dr. Iyengar moved to Orange County in 1990 because he felt the St. Francis surgical facility was inadequate. He joined the medical staffs at Anaheim General Hospital (now Anaheim Memorial Medical Center), Fountain Valley Regional Hospital, and several other Orange County hospitals.

8. Dr. Iyengar is a Fellow of the American College of Cardiology, a Fellow of the American College of Chest Physicians, a Fellow of the International College of Angiology, and a member of several other professional organizations. He was on the Board of the Orange County Medical Association, was President of the Indian Medical Association of Southern California, President of the Fountain Valley Rotary International, Chairman of the Indian Medial Association of Southern California Continuing Medical Education, and President of NA VIK.A (North American Vishwa Karnataka Association).

9. Dr. Iyengar has been married for many years. He has two grown children, one an attorney and the other an emergency medical technician.

The Incidents Involving SM

10. SM, an anesthesiologist, was born and raised in India. In contrast to Dr. Iyengar, SM described being raised in a culture in which men and women had virtually no physical contact with one another unless they were man-ied.

SM received her medical degree from Guntur Medical College, Guntur, India, in 1978. She moved to the United States following the completion of a rotating internship and after serving as a Senior Home Officer in the field of Obstetrician and Gynecologist. After arriving in the United States, SM participated in several residencies. She completed a twoyear residency in Anesthesiology at Maimonides Medical Center in Brooklyn, New York in 1987, and then finished a fellowship in Cardiovascular Anesthesiology.

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SM came to Fountain Valley Regional Hospital in July 1988. She has held numerous leadership positions at Fountain Valley. She is currently Chief of Staff at Fountain Valley, Medical Director of the Department of Anesthesiology at Fountain Valley, and President of Fountain Valley Anesthesiology Medical Associates.

SM is board certified in Anesthesiology, and she specializes in Cardiovascular Anesthesiology. She is married to a board certified Cardiologist, who is also from India. SM is a proper, proud, serious, no-nonsense person.

11. SM has known Dr. Iyengar for more than 20 years. While they visited in one another's homes many years ago, they did not become friends. Over the years, Dr. Iyengar put his hand on SM's shoulder and on her waist, which made her feel uncomfortable. Dr. Iyengar also told SM that her voice was sexy and that she "should not kiss so many men." Dr. Iyengar made these comments in a joking fashion, and he told SM, "You know I'm joking, don't take it seriously." Dr. Iyengar's comments neve1iheless bothered SM. SM complained about Dr. Iyengar' s conduct to her husband, but she did not confront Dr. Iyengar before 2007.

Between 2000, when Dr. Iyengar arrived at Fountain Valley, and November 2007, SM and Dr. Iyengar worked together in at least a thousand very difficult, lengthy surgical procedures. SM's failure to complain to Dr. Iyengar or to Fountain Valley's administration about Dr. Iyengar's behavior and comments did not establish that Dr. Iyengar did not engage in offensive behaviors, that he did not make unsettling comments, or that SM was not disturbed by the interactions; instead, her failure to complain was a measure of her restraint.

12. During a surgery on November 14, 2007, in which SM served as the anesthesiologist, Dr. Iyengar told Dr. Vo, another surgeon on the case, words to the following effect: "You should have seen Dr. [SM] when Dr. Abraham was around - her brassiere got all wet." SM took great offense to this comment, which briefly distracted her full attention from her patient and the procedure. SM told Dr. Iyengar she found his remarks insulting, offensive, and unacceptable. She told him to stop.

13. On November 28, 2007, Dr. Iyengar and SM participated in two very difficult surgeries. During one of the procedures, Dr. Iyengar told SM to provide the patient with certain blood products. SM thought doing so was not in the patient's best interest. The patient was under anesthesia at the time. Dr. Iyengar became quite upset, raised his voice, and said in essence: "What the hell are you doing not giving platelets?" SM perceived Dr. Iyengar's comment to be rude and unprofessional. SM did not respond and continued to tend to the patient. The surgery was completed without incident.

A couple of days later, SM entered the doctors' dining room in the early afternoon. She saw Dr. Iyengar as he was leaving the dining room. SM approached Dr. Iyengar and told him that she needed to speak with him. SM intended to clear up any misunderstandings. As she began to say, "We were all working very hard the other day .... ", Dr. Iyengar interrupted, put his hand on SM's right shoulder, pulled her close to him, kissed her on the

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cheek, and said, "I have never kissed you before. I want to take you out and see you get ·drunk. Do you like Black Label or Blue Label?" SM was stunned. She shoved Dr. Iyengar away. Dr. Iyengar left. SM felt violated.

The Incident Involving HS

14. HS received a bachelor's degree in Nursing in 1971. She became a California licensed registered nurse in 1971. HS worked at Fountain Valley as the Interim Director of Perioperative Services from April 2007 through March 2008. While working at Fountain Valley, HS had frequent contact with Dr. Iyengar.

15. In April 2007, Dr. Iyengar was Chief of Surgery. HS contacted Dr. Iyengar outside the physician's lounge to let him know that she would be out of town that weekend. Dr. Iyengar, who had been speaking to another person, said, "Oh, so he's better looking than me?" HS replied, "Yeah." Then Dr. Iyengar stepped toward HS and said, "You know I'm your one true love" and tried to hug and kiss HS. HS stepped out of the way said, "I'll see you later," and left.

On several other occasions when HS was working at Fountain Valley, Dr. Iyengar patted his hand on the cushion of a sofa he was sitting on and said to HS, "Oh, come here, you are my one true love."

Dr. Iyengar's conduct made HS uncomfortable.

The Incident Involving KF

16. KF received her medical degree from Tulane University School of Medicine in New Orleans, Louisiana, in 1994. She is a board certified general surgeon. She is on the medical staffs at Fountain Valley, Orange Coast Memorial Hospital, Long Beach Memorial Medical Center, and Chapman Medical Center. KF works with Peter Le Port, M.D.

KF has known Dr. Iyengar since 2001, when she joined Dr. Le Port's practice.

17. Sometime in 2007, KF was in the physician's lounge at the same time as Dr. Iyengar. KF was wearing a diamond wedding ring. Dr. Iyengar, who was sitting at a computer, asked KF to come over and show him her hand. KF thought that Dr. Iyengar wanted to look at her wedding ring.

When KF extended her hand, Dr. Iyengar took her hand in his hand and kissed the back of it with his lips and tongue. According to KF, "It kind of freaked me out."

KF pulled her hand away and left the physician's lounge. She returned to Dr. Le Port's clinic. Sh01ily after she entered the clinic, Dr. Le Port approached her and asked her what was wrong. KF explained what had just occurred.

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Corroborating Evide nee

18. Reginald Abraham, M.D., a board certified general surgeon and cardiothoracic surgeon, has been on the staff at Fountain Valley since 2004. He has frequent contact with Dr. Iyengar and SM.

He recalled that during a surgery in November 2007, Dr. Iyengar commented in SM's presence that when SM was around Dr. Abraham, her brassiere got wet, or words to that effect. He recalled that SM asked Dr. Iyengar to stop making that kind of comment.

19. SM prepared contemporaneous notes (which she did not provide to the Medical Board until the Friday before the disciplinary hearing) in which she described in detail the hugging incident occurring in the doctors' dining room.

20. A member of the hospital's custodial staff was in the doctors' dining room when the hugging incident involving Dr. Iyengar and SM occurred. She looked up when she heard loud voices and saw SM pushing Dr. Iyengar away.

21. SM told her physician-husband about the hugging incident almost immediately after it happened. SM's physician-husband contacted Dr. Iyengar and told him to never engage in that kind of conduct again. SM's physician-husband's testimony about his interaction with Dr. Iyengar was calm, responsive, and credible. It was not made-up.

22. Dr. Le Port testified that he was working at his clinic when KF arrived and was visibly upset. When Dr. Le Port asked KF what was wrong, KF said she had been talking with Dr. Iyengar and that he had licked the back of her hand.

Dr. Iyengar 's Testimony Regarding These Incidents

23. Dr. Iyengar denied making the "wet brassiere" comment. His testimony about that matter was deliberately untruthful. Dr. Abraham was present when Dr. Iyengar made the "wet brassiere" comment, he heard that comment, and he corroborated SM's account.

24. Dr. Iyengar admitted he attempted to hug SM in the doctors' dining room, but he claimed that SM initiated a hug to which he responded. He testified that he gave SM "a gentle hug on her shoulder" and that SM's hands were on his back of his body during the hug. Dr. Iyengar denied kissing SM, denied telling her he wanted to see her get drunk, and denied any mention of Blue Label or Black Label. His testimony about the kiss was not believable in light of the contemporaneous writing that corroborated SM's account and because of Dr. Iyengar's deliberate falsehoods about other factual matters.

25. Dr. Iyengar denied he attempted to hug and kiss HS and he testified that he did not tell her that she was his "one true love." His testimony was not credible because of his

8

deliberate untruthfulness about other factual matters and because of the calm, deliberate and believable manner in which HS delivered her testimony.

26. Dr. Iyengar denied kissing and licking KF's hand. He claimed that he shook her hand to demonstrate his appreciation for KF having voted for him in a hospital election, and that he then put her hand to his forehead as a gesture of respect as is customary in India. He testified that KF must have misunderstood what he was doing. His denial about touching the back of KF's hand with his tongue was deliberately untruthful. KF's testimony was responsive, calm, and thoughtful. Dr. Le Po11's unbiased testimony corroborated KF's distress immediately after the incident and her consistent account about what happened.

27. Dr. Iyengar questioned SM, HS, and KF's accounts because they failed to immediately report the incidents. The expert testimony established that disruptive behavior often goes unreported or is not reported in a timely fashion at least 40 percent of the time. The occurrence of delayed reporting and not reporting makes sense because of the stigma that is necessarily attached to accusing a colleague of unprofessional conduct and because of a victim's reluctance to confront the perpetrator. SM, HS, and KF's credibility was not tarnished by late reporting.

Dr. Iyengar denied SM's physician-husband ever spoke to him about the hugging incident. Dr. Iyengar's assertion that he did not have a conversation with SM's physicianhusband about the hugging incident was simply untrue; that conversation took place.

Dr. Iyengar suggested that Dr. Le Port's testimony about his interaction with KF at the clinic was due to bias resulting from a hospital election several years before in which Dr. Iyengar ran for an office against Dr. Le P011, an election from which Dr. Le Port withdrew. The suggestion that Dr. Le P011 was biased and provided false testimony against Dr. Iyengar on that basis was absurd.

The Impact of the Incidents

28. SM was briefly distracted from her duties as an anesthesiologist when Dr. Iyengar made the "wet brassiere" comment. This resulted in some risk to the patient, who was then under anesthesia.

HS was offended by Dr. Iyengar's comments that she was his "one true love."

SM, HS, and KF were offended by Dr. Iyengar's comments and attempts to have physical contact with them. These three female health care providers made efforts to keep away from Dr. Iyengar following his engaging in unprofessional conduct.

In SM's case, keeping away from Dr. Iyengar was impossible since she is one of two cardiothoracic anesthesiologists on Fountain Valley's staff. SM has worked next to Dr. Iyengar in surgery more than 300 times since the hugging incident, even though she makes an effort to minimize her contact with Dr. Iyengar as much as possible.

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HS no longer works at Fountain Valley, and she no longer needs to avoid Dr. Iyengar.

KF continues to work at Fountain Valley, and she avoids Dr. Iyengar whenever she sees him. She is on call as a surgeon and, thus, it is possible that KF may be required to work with Dr. Iyengar in a medical emergency.

Complainant's Expert Testimony

Suzanne Fidler, M.D.

29. Suzanne Fidler, M.S., is a board certified internist. She holds a law degree and is a Certified Professional in Healthcare Risk Management. She has been employed as a solo medical practitioner, a hospitalist, an attorney, a medical consultant, a patient safety officer, and a director of risk management. Dr. Fidler possesses education, training, experience, and special knowledge in the field of the disruptive physician.

30. Dr. Fidler established that that The Joint Commission2 issued a Sentinel Event Alert concerning disruptive behaviors. Dr. Fidler's training and experience, as well as the studies mentioned in the Joint Commission's Sentinel Event Alert, established a correlation between disruptive personal behaviors and patient safety in a healthcare setting. The Sentinel Event Alert recommended that hospitals and other health care facilities adopt a disruptive behavior policy to foster patient care and prevent unprofessional conduct that undermines ·a culture of safety.

31. Dr. Fidler reviewed the investigative report, SM's complaint, and several letters in which Dr. Iyengar's conduct with SM, HS, and KF was described. She did not review Fountain Valley's disciplinary investigation, nor did she hear Dr. Iyengar's version of the events. Dr. Fidler heard SM testify.

2 Notice is taken that The Joint Commission, formerly the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), is a United States-based not-for-profit organization that accredits more than 19,000 health care organizations and programs in the United States. A majority of state governments recognize Joint Commission accreditation as a condition oflicensure and a precondition for the receipt of Medicaid reimbursement. The Joint Commission conducts surveys (investigations) every three years. In support of its mission to improve the quality of health care, The Joint Commission reviews a health care organization's response to sentinel events in the accreditation process.

A sentinel event is an unexpected occurrence involving death or serious physical or psychological injury, or carries a significant chance of a serious adverse outcome in the future without intervention. These events are called "sentinel" because they signal the need for immediate investigation and response.

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Based on what she reviewed and heard, Dr. Fidler opined that Dr. Iyengar's "wet brassiere" comment, his conduct in hugging and kissing SM, his comments to and interaction with HS, and his interaction with KF involved disruptive behavior and involved "general unprofessional conduct." Dr. Fidler believed Dr. Iyengar's conduct violated Fountain Valley's bylaws in that it involved rude or abusive conduct toward physicians and other hospital employees. She believed the conduct was in the nature of "sexual harassment" because it involved unwelcome touching. Dr. Fidler believed that Dr. Iyengar's alleged conduct, if true, was inconsistent with the conduct expected of a reasonable and prudent physician and that it impeded other professionals from working in an environment that they believed was safe and free from unwanted sexual advances. Dr. Fidler opined that Dr. Iyengar's conduct posed a low but clear-cut risk of harm to patients at Fountain Valley and anywhere else that Dr. Iyengar engaged in such disruptive conduct. Dr. Fidler believed that Dr. lyengar's conduct violated American Medical Association standards addressing physicians with disruptive behavior, that is, physicians who engage in personal conduct that negatively affects or might negatively affect patient care. Dr. Fidler conceded that criticism offered in good faith with the aim of improving patient care is not disruptive behavior.

32. On cross-examination Dr. Fidler conceded that delayed reporting was irrelevant to reaching a conclusion that Dr. Iyengar engaged in unprofessional conduct; she admitted that her report did not mention the outcome of Fountain Valley's disciplinary proceeding because she had no knowledge of the outcome; she admitted that she did not contact witnesses herself; and she agreed that she would have liked to have known Dr. Iyengar's side of the story. Dr. Fidler did not find Dr. Iyengar guilty of gross negligence, incompetence, or corruption. Dr. Fidler conceded that "different people react differently to the same comments, for example, 'You are a beautiful woman,"' and that every act of disruptive behavior and sexual harassment does not pose a risk of patient harm. Dr. Fidler did not hold herself out to be a psychiatrist, psychologist, or behavioral specialist.

Respondent's Expert Testbnony

Dominick Addario, M.D.

33. Dominick Addario, M.D., a board certified psychiatrist, testified. Dr. Addario has been licensed to practice medicine in California for approximately 40 years. He has served as a Medical Board expe1i reviewer. He has reviewed sexual harassment claims and has lectured in the area of sexual boundaries.

34. Dr. Addario met with Dr. Iyengar on May 2, 2011, and conducted a two and one-half hour clinical interview. He obtained identifying data and was told about the 2007 incidents. His notes from that interview did not mention of the "wet brassiere" comment. According to Dr. Addario's notes, in describing the hugging incident in the doctors' dining room, Dr. Iyengar told Dr. Addario that "she tried to give me a hug." Dr. Iyengar told Dr. Addario that he questioned SM's motives because he tried to prevent staff physicians from having input on certain committees and because he opposed SM's appointment as Chief of Staff. According to Dr. Addario's notes, Dr. Iyengar said, "I shook hands with [KF], just

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took [them] to his forehead, a friendly custom. I never touched her with lips. I never knew what a French kiss was." The notes stated that KF did not make a complaint when this occurred. According to Dr. Addario's notes, Dr. Iyengar denied having any issues with HS.

Dr. Addario obtained Dr. Iyengar's past psychiatric history, which included Dr. Iyengar' s participation in a five week inpatient program in 1992 that resulted in a finding that "he was absent pathology." Dr. Addario discussed Dr. Iyengar's having attended a PACE boundaries course. According to Dr. Addario's notes, there were no incidents or accusations since Dr. Iyengar attended the PACE course.

Dr. Addario reviewed the 1991 disciplinary records, the Fountain Valley disciplinary records, various treatment records, the Medical Board investigative report, and Dr. Iyengar's curriculum vitae. Dr. Addario administered psychological testing, including an MMPI-2, all of which was found to be valid and negative for any psychopathology.

Under the DSM-IV-TR, Dr. Addario made no diagnosis on Axis I (clinical psychiatric syndromes), no diagnosis on Axis II (personality disorders), no diagnosis on Axis III (physical disorders), noted a "hospital staff issue" on Axis IV (psychological stressors ), with mild stress, and a GAF of 85 on Axis V (global assessment functioning during the past year).

35. Dr. Addario testified, "A hug is a common everyday occurrence that has a multitude of meanings - a hug is often impulsive and spontaneous." Based upon his review of all materials, Dr. Addario did not believe that Dr. Iyengar's hug with SM involved , unprofessional conduct because there was no sexual motivation and it did not impact patient care.

With regard to Dr. Iyengar's interaction with HS, Dr. Addario observed that HS did not complain. He believed that the comment" You are the love of my life" was solicitous, not sufficiently serious to signal sexual harassment, and did not involve unprofessional conduct because patient harm did not result. At most, he believed it was a "low level offense" that demonstrated poor social skills with an individual who was not a patient.

With regard to the incident involving KF, Dr. Addario testified that he was unaware of any sexual motivation on Dr. Iyengar's part even if Dr. Iyengar kissed KF's hand. He believed that the conduct was cultural and was insignificant because KF did not complain about it. He believed it was not unprofessional conduct because there was no patient harm. Dr. Addario believed that Dr. Iyengar's "explanation was plausible."

Dr. Addario concluded that Dr. Iyengar was not preoccupied with the need for sexual gratification and that "cultural problems got him into trouble." "Dr. Iyengar struggles with cultural issues that obviously make people uncomfortable, but he is not predatory." Dr. Addario believed that the sanctions imposed by Fountain Valley's MEC gained Dr. Iyengar's attention, that Dr. Iyengar was not self-destructive, and the sanctions imposed by the MEC were sufficient to curtail similar conduct in the future. Dr. Addario essentially testified, "This is a human resources case rather than a Medical Board disciplinary matter."

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On cross-examination, Dr. Addario defined general unprofessional conduct to include behavior "so horrendous as to disrupt the workplace and have an impact on patient care." Dr. Addario agreed that patient harm was not required to find that a physician had engaged in unprofessional conduct. Dr. Addario agreed that persons who engage in sexual harassment are not necessarily sexual predators.

Dr. Addario believed that Dr. Iyengar crossed social boundaries because "You carry your culture with you." He admitted that he was not an expert in Indian culture. He believed Dr. Iyengar might benefit from a brief course of psychotherapy.

Elizabeth Becker, LCSW

36. Elizabeth Becker, LCSW, is a licensed clinical social worker who owns and operates Inner Solutions For Success, an entity offering educational and behavioral programs to medical professionals identified as having engaged in unprofessional conduct. Ms. Becker provides education, training, and coaching in the areas of professional boundaries, disruptive behavior, conflict resolution, and communication. Ms. Becker previously served as the Director of PACE's Behavioral Programs.

37. Ms. Becker evaluated Dr. Iyengar in 2008 as a result of a referral from the Fountain Valley's Chief of Staff. Dr. Iyengar told Ms. Becker that similar allegations were made which resulted in his previously being placed on probation to the Medical Board.

Dr. Iyengar participated in a three-day educational and training course in April 2008 that included small group meetings and required reading. Dr. Iyengar met all course objectives and satisfactorily completed the training and assignments. At the conclusion of the program, for which CME credit was given, Ms. Becker suggested that Dr. Iyengar implement and adhere to a Commitment to Change Plan developed in the program, refer to the required reading as required, participate in follow-coaching, and seek support and supervision from colleagues.

Dr. Iyengar met with Ms. Becker in May 2011 and then again a week before the hearing at the request of Dr. Iyengar's attorneys. In connection with the May 2011 visit, Ms Becker obtained a history and interviewed Dr. Iyengar. She observed that Dr. Iyengar participated in the follow-up program, which consisted of four qumierly coaching calls. He told Ms. Becker that he had adhered to the Commitment to Change Plan. He denied being involved in any other therapy or counseling. Dr. Iyengar retook the skills test he previously took in 2008 and ''it appears that Dr. Iyengar has retained most of what he learned in the boundary program he attended in 2008."

Ms. Becker believed that Dr. Iyengar was similar to many physicians who had been accused of boundary violations and that Dr. Iyengar possessed several factors that placed him at risk: cultural factors, including possible gender bias; a lack of awareness about the needs and perspectives of others; ineffective communication skills; and a lack of understanding

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about the power differential that exists between physicians and other health care professionals. Dr. Iyengar expressed feelings of confusion, surprise, shame, embarrassment and remorse over the most recent charges, and he took responsibility for his misconduct. Ms. Becker saw no benefit in referring Dr. Iyengar for counseling or therapy. She believed Dr. Iyengar was at low risk to reoffend. Ms. Becker believed bi-monthly coaching might benefit Dr. Iyengar.

38. On cross-examination, Ms. Becker observed that Dr. Iyengar had never misbehaved with a patient; that the incidents were not very severe in nature (consisting mostly of juvenile, inappropriate comments to women in positions of power); and that the frequency and severity of Dr. Iyengar's misconduct did not suggest a significant risk of harm to patients. She mentioned that health care is a team effort and that many physicians are unaware of that concept.

The Fountain Valley Discipline

39. On December 13, 2008, the Fountain Valley Chief of Staff received a letter from SM's attorney that alleged that Dr. Iyengar sexually harassed SM. The letter requested Fountain Valley investigate and take corrective action.

Fountain Valley's Disruptive Behavior Policy required the Chief of Staff to investigate. An ad hoc committee was formed and commenced an investigation. Ten interviews were conducted, including interviews of SM and Dr. Iyengar.

Dr. Iyengar told the MEC that he did not make the "wet brassiere" comment. He told the MEC that SM approached him in the doctors' dining room, that he thought he and SM were going to have a mutual hug, that SM had hugged him in the past, and that while he hugged SM, he did not kiss her or tell her that he wanted to get her drunk. Dr. Iyengar said that SM had problems with every other heart surgeon on the staff.

Fountain Valley's disciplinary committee concluded that the conduct SM complained about "likely occurred" and that "the most credible witnesses were those that verified the conduct alleged by [SM.]" The disciplinary committee concluded that Dr. Iyengar engaged in sexual harassment. 3

3 The MEC's factual findings and legal conclusions are not probative in this proceeding other than to provide a factual background. While collateral estoppel may be applied to decisions made by administrative agencies when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate (People v. Sims (1982) 32 Cal.3d 468, 4 79), the doctrine of collateral estoppel applies only when several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fomih, the decision in the former proceeding must be final and on the merits. Finally, the

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Fountain Valley imposed disciplinary action upon Dr. Iyengar that included the issuance of a formal reprimand; a warning that it was "imposing a zero-tolerance standard, meaning that no actual incident of sexual harassment, whether in word or conduct ... will be tolerated"; a requirement that Dr. Iyengar write letters of apology to the MEC and to SM; a requirement that he complete a professional boundaries course with Elizabeth Becker, LCSW; and a requirement that he be removed as Department Chair. Fountain Valley also filed an 805 report with the Medical Board.

Other Evidence

40. Dr. Abraham testified that Dr. Iyengar proclaimed to others during surgeries and in the intensive care unit that the nurses liked Dr. Abraham because he was young and handsome. These comments very much bothered Dr. Abraham, who quietly endured the remarks without confronting Dr. Iyengar. Dr. Iyengar testified that he was unaware that his gratuitous comments involving nurses and Dr. Abraham perturbed Dr. Abraham until this disciplinary hearing.

41. Dr. Iyengar testified that he stopped making potentially disturbing comments to women after Fountain Valley imposed discipline. In rebuttal, complainant called Anouki Karu, M.D., a board eligible anesthesiologist who has provided anesthesiology services in cardiothoracic procedures at Fountain Valley since August 2011.

Dr. Karu first met Dr. Iyengar when she was applying for an anesthesiology position at Fountain Valley. Dr. Karu asked Dr. Iyengar, whom she did not know, where she could find Fountain Valley's Chief of Staff. Dr. Iyengar was friendly and flirtatious, asking her, "Are you lost, little girl? Can I help you?" When Dr. Karu told him who she was and why she wanted to meet with the Chief of Staff, Dr. Iyengar's attitude changed.

Dr. Karu has been in surgeries with Dr. Iyengar at least a dozen times since then. On almost every occasion, towards the middle or the end of the procedure, when the patient has been under anesthesia, Dr. Iyengar has said in a voice loud enough for everyone in the OR to hear, "Ladies and gentlemen, Dr. Karu has a date later this evening and we have to finish" or words to that effect. Dr. Karu told Dr. Iyengar that his comments were offensive and inappropriate, and she asked him to stop. When he did not do so, Dr. Karu realized that Dr. Iyengar was not listening and she stopped protesting. Dr. Iyengar's comments have annoyed Dr. Karu and have made her uncomfortable.

party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Gikas v.Zolin (1993) 6 Cal.4th 841, 849.)

Here, the MEC's decision is not binding because testimony was not taken under oath, there was no right to confrontation and cross-examination, the standard of proof in the MEC proceeding was less than the clear and convincing standard that applies in this proceeding, and the issues to be decided by the Medical Board in this proceeding are not identical to the issues that were decided by the MEC.

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42. Respondent called a number of character witnesses in this disciplinary proceeding, all of whom were men, all of whom claimed to be unaware of Dr. Iyengar making unnecessary comments with sexual overtones, and most of whom extolled Dr. Iyengar's virtues as a physician and surgeon and as person of good character. The testimony is summarized below:

A. Santosh Mohanty, M.D., has known Dr. Iyengar for years. He believed Dr. Iyengar was a skillful surgeon who possesses excellent clinical judgment. Dr. Mohanty believed that even though Dr. Iyengar was not always aware of appropriate personal boundaries and sometimes made stupid comments, Dr. Iyengar was not a threat to patient safety.

B. Ajeet R. Singhvi, M.D., praised Dr. Iyengar for his leadership in founding and maintaining Indian physician organizations. Dr. Signhvi had never seen Dr. Iyengar behave in an inappropriate fashion. He was not aware that Dr. Iyengar had been on probation to the Medical Board.

C. Terence Martin O'Heany, M.D., was present in the doctors' dining room the day of the incident involving SM. He did not observe a hug. SM did not complain to him about the incident later that day.

D. Surinder Thind, M.D., was Fountain Valley's Chief of Staff in November 2007 and during the Fountain Valley investigation. Dr. Thind had never seen Dr. Iyengar engage in any kind of inappropriate conduct.

E. Mark Miller, M.D., practices at Anaheim Memorial Medical Center. He had worked with Dr. Iyengar in surgery and, more frequently, he had worked with him in several professional organizations. Dr. Miller believed Dr. Iyengar possesses excellent clinical skills and interacts with others in an appropriate manner.

F. It was stipulated that if Quang Vo, M.D., were called to testify, he would testify that Dr. Iyengar joked around with SM and that he once had heard Dr. Iyengar say that "[SM] likes other doctors she works with more than us" but not in a sexual manner. Dr. Vo heard SM say. "Stop it." Dr. Vo does not pay attention to Dr. Iyengar's interactions with others.

The Disciplinary Guidelines

part: 43. The Medical Board's preface to its current disciplinary guidelines states in

Business and Professions Code section 2229 mandates protection of the public shall be the highest priority for

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the Medical Board and for the Administrative Law Judges of the Medical Quality Hearing Panel. Section 2229 further specifies that, to the extent not inconsistent with public protection, disciplinary actions shall be calculated to aid in the rehabilitation of licensees. To implement the mandates of section 2229, the Board has adopted the Manual of Model Disciplinary Orders and Disciplinary Guidelines (guidelines), 1 oth Edition. Consistent with the mandates of section 2229, these guidelines set forth the discipline the Board finds appropriate and necessary for the identified violations. In addition to protecting the public and, where not inconsistent, rehabilitating the licensee, the Board finds that imposition of the discipline set forth in the guidelines will promote uniformity, certainty and fairness, and deterrence, and, in turn, further public protection.

The Board expects that, absent mitigating or other appropriate circumstances such as early acceptance of responsibility and demonstrated willingness to undertake Board-ordered rehabilitation, Administrative Law Judges hearing cases on behalf of the Board and proposed settlements submitted to the Board will follow the guidelines, including those imposing suspensions. Any proposed decision or settlement that depaiis from the disciplinary guidelines shall identify the departures and the facts supporting the departure.

44. The clear and convincing evidence established three instances of general unprofessional conduct. For general unprofessional conduct, the guidelines recommend:

Maximum penalty: Revocation

Minimum penalty: Stayed revocation, five years probation. In addition to standard terms and conditions of probation, special conditions of probation for these offenses may include: Education Course; Prescribing Practices Course; Medical Record Keeping Course; Ethics Course; Clinical Training Program; Oral or Written Examination (preferably Condition Precedent); Monitoring-Practice/Bil ling; Pro hi b iti on Against Solo Practice; and Prohibited Practice.

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Disciplinary Arguments

45. Complainant'.s counsel argued that Dr. Iyengar's unsolicited behaviors and rude comments deeply offended the female victims; that he engaged in conduct that he knew was inappropriate (which is the reason he lied about it); that he expressed no remorse for the grief he caused; and that his misconduct disturbed the victims and negatively impacted the quality of care provided in a hospital setting where the avoidance of patient risk was paramount. Complainant's counsel described Dr. Iyengar's behavior as "stupid, offensive conduct" involving an abuse of power. Complainant's counsel argued that Dr. Iyengar's long history of similar misconduct established that Dr. Iyengar is incapable of controlling himself despite the imposition of sanctions. Complainant's counsel argued that Dr. Iyengar had lied to everyone about the nature and extent of his misconduct - to hospital disciplinary committees, to colleagues, to psychiatrists and other evaluators, and to administrative law judges - and that he simply cannot be trusted. Fountain Valley's zero-tolerance policy did not stop Dr. Iyengar from making inappropriate comments about Dr. Abraham and Dr. Karu in the presence of others during surgeries or in the intensive care unit. Complainant's counsel argued that imposing probation will not adequately protect the public even if a full time chaperone were required as a condition of probation. Complainant's counsel argued that an outright revocation of Dr. Iyengar's certificate was the only measure of discipline that will protect the public.

46. Respondent's counsel argued that the severity and frequency of Dr. Iyengar's distasteful conduct was at issue, and that the conduct was neither momentous nor frequent. Only four instances of misconduct were alleged; the alleged misconduct occurred more than five years ago; and the misconduct did not involve patients. There were no immediate complaints by the alleged victims. Respondent's counsel observed that Dr. Addario, who has served as a Medical Board consultant for many years, and Ms. Becker, who has run PACE's highly regarded behavioral health program, were unable to conclude that Dr. Iyengar's behavior involved a risk of patient harm. SM's extreme sensitivity to Dr. Iyengar's offhanded and awkward social interactions should not be the measure of appropriate behavior or the basis for discipline. There was no evidence that Dr. Iyengar's conduct was motivated for the purpose of sexual gratification or that he is a sexual predator; the evidence was to the contrary. Respondent's counsel argued that the accusation should be dismissed because unprofessional conduct, i.e. conduct involving patient harm, was not established; however, if it were determined that Dr. Iyengar engaged in unprofessional conduct, then, at most, a letter of public reprimand should be issued, perhaps with a recommendation that Dr. Iyengar engage in psychotherapy or undergo coaching.

Conclusions

4 7. Dr. Iyengar engaged in unprofessional conduct by making the "wet brassiere" comment, which was aggravated by the fact that he and SM were involved in a surgical procedure when he made the comment. His immature comment briefly distracted SM, which involved an actual but minor risk of harm to the patient who was then under anesthesia. Dr. Iyengar also engaged in unprofessional conduct by hugging and kissing SM in the doctors'

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dining room, and by making a comment to the effect that he wanted to see her get drunk. Dr. Iyengar engaged in unprofessional conduct by attempting to hug and kiss HS and by telling her that she was his one true love. Finally, Dr. Iyengar engaged in unprofessional conduct by kissing and licking the back of KF's hand. No patient was present when the last three incidents occuned, and Dr. Iyengar's unprofessional conduct did not result in a risk of immediate patient harm.

No actual patient harm was established. In each instance, the victim of Dr. Iyengar's misconduct was a female health care provider with whom Dr. Iyengar should have maintained a strictly professional relationship. No incident evinced frankly predatory sexual misconduct, but each incident involved Dr. Iyengar crossing acceptable social boundaries for reasons that are not easily comprehended.

Actual patient harm was not required to establish unprofessional conduct. As Ms. Becker observed, health care is a team effmi. Disruptive behavior that belittles other members of the team, or intimidates other team members, or interferes with the team's mission to provide patients with the best care humanly possible should not be tolerated. Ignoring unprofessional conduct encourages such behavior.

Dr. Iyengar, a highly skilled cardiothoracic surgeon who held many leadership positions at Fountain Valley, possessed immense powers. He abused his authority by making the "wet brassiere" comment about SM when they were involved in a surgery; he abused his authority by seeking to hug and kiss HS, a nurse, and by telling her she was his one true love, an insincere and inane comment; and he abused his authority by licking the back of a more junior surgeon's hand, unfathomable behavior. Without doubt, Dr. Iyengar's unprofessional conduct contributed to the development of a hostile work environment at Fountain Valley and, to some extent, posed a risk of harm to patient care. Dr. Iyengar's unprofessional conduct established his unfitness to practice without some remedial action being taken by the Medical Board to memorialize and curb that conduct.

This is the second time in his career that Dr. Iyengar's unprofessional conduct towards female health care providers has been brought to the Medical Board's attention. As a result of the discipline at Anaheim Memorial Hospital more than a decade ago, Dr. Iyengar was suspended from the staff for 90 days, underwent inpatient treatment at The Meadows for 30 days, and was reported to the Medical Board. The Medical Board placed Dr. Iyengar on probation for five years, ordered him to undergo a psychiatric evaluation and psychotherapy, required him to submit an educational plan to heighten his awareness of the effects of sexually offensive conduct, and directed him to refrain from forcing unwanted familiarities on females with whom he might have contact at work. In 2007, and as a result of the unprofessional conduct giving rise to this disciplinary matter, Fountain Valley required Dr. Iyengar to complete a boundaries course, write letters of apology, and resign from a leadership position. One would have hoped that Fountain Valley's imposition of such discipline would be sufficient to result in Dr. Iyengar realizing that gratuitous comments about another colleague's attractiveness to the other sex or dating habits are not funny.

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But after the Fountain Valley discipline was imposed, Dr. Iyengar continued to make comments during surgeries and in the ICU about nurses being attracted to Dr. Abraham in Dr. Abraham's presence and he made comments during surgeries about Dr. Karu's dating practices. These comments were unprofessional, disruptive, and distracting. Dr. Iyengar's completion of a professional boundary program did not yield a permanent solution.

Dr. Iyengar's personal comments have caused others great distress and his unsolicited efforts to hug and kiss female colleagues were unwelcome. His behavior is in poor taste and offensive, but it is not unlawful and it is not frequent.

Dr. Iyengar was less than candid in his testimony. He minimized and misrepresented his conduct in the incidents involving SM and KF, and he denied any wrongdoing related to HS. Dr. Iyengar, throughout this disciplinary matter, deliberately misrepresented factual matters in an effort to benefit himself. The promises he made in this proceeding - that he has learned his lesson and will never engage in similar conduct again - were made before.

It is impossible to prevent humans from engaging in conduct that others will find disruptive, inappropriate, or offensive on occasion. Sometimes humans are overly sensitive and sometimes humans lack tact or impulse control. What is acceptable to one may be unacceptable to another.

Dr. Iyengar's unprofessional conduct does not merit an outright revocation. The evidence does not suggest he suffers from a psychopathology. He simply is insensitive and immature. Requiring him to complete another boundary class or imposing similar conditions of probation will not change him; doing so has not proven effective in the past. The only stimulus to which Dr. Iyengar seems to respond is a direct threat, which almost always results in his promise that he will not engage in misconduct again which is followed by a period of good behavior.

Something must be done to permanently gain Dr. Iyengar's attention, to let him know that the next time he engages in similar misconduct will be the last time, that the Medical Board will not tolerate his misbehavior again, and that proof of the reoccurrence of similar misconduct that gave rise to the previous accusation and this accusation will probably result in the loss of his certificate to practice medicine.

It is concluded that imposing a 90 day actual suspension that prohibits Dr. Iyengar from practice of medicine will be sufficient to gain his attention, provided that the order of suspension is coupled with a letter of public reprimand that clearly and specifically advises Dr. Iyengar that he shall not discuss the appearance of colleagues, the attractiveness of colleagues to members of the opposite sex, the dating practices of colleagues, or the private conduct of colleagues because such comments involve unprofessional conduct and, further, provided that the public reprimand clearly and specifically advises Dr. Iyengar that he shall not to touch, hug, or kiss any colleague or show any affection other than a formal handshake, because such conduct, even if he believes he has consent, involves the risk of unprofessional conduct.

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While the measure of discipline proposed herein is inconsistent with the disciplinary recommendations set forth in the Board's guidelines; it is appropriate given the nature and extent of Dr. Iyengar' s proven misconduct, the remedial steps he has undertaken as a result of the Fountain Valley discipline, and the opinions of two respected experts who testified that Dr. Iyengar does not suffer from a psychopathology and does not currently pose a direct risk of harm to patients.

LEGAL CONCLUSIONS

The Standard of Proof

1. The standard of proof in an administrative action seeking to suspend or revoke a physician's ce1iificate is clear and convincing evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.) Clear and convincing evidence requires a finding of high probability; the evidence must be so clear as to leave no substantial doubt, and it must be sufficiently strong to command the unhesitating assent of every reasonable mind. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84.)

Purpose of Physician Discipline

2. The purpose of the Medical Practice Act is to assure the high quality of medical practice. (Shea v. Board of Medical Examiners (1978) 81Cal.App.3d564, 574.) Conduct forming a basis for a revocation or a suspension must demonstrate an unfitness to practice. (Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1416.)

The Imposition of Physician Discipline

3. Business and Professions Code section 222 7 provides in part: A licensee whose matter has been heard by an administrative law judge of the Medical Quality Hearing Panel .... and who is found guilty ... may, in accordance with the provisions of this chapter:

(1) Have his or her license revoked upon order of the board.

(2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board.

(3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board.

( 4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses approved by the board.

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(5) Have any other action taken in relation to discipline as paii of an order of probation, as the board or an administrative law judge may deem proper ....


(a) Protection of the public shall be the highest priority for the Division of Medical Quality ... and administrative law judges of the Medical Quality Hearing Panel in exercising their disciplinary authority.

(b) In exercising his or her disciplinary authority an administrative law judge of the Medical Quality Hearing Panel. .. shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence.

( c) It is the intent of the Legislature that the division ... and the enforcement program shall seek out those licensees who have demonstrated deficiencies in competency and then take those actions as are indicated, with priority given to those measures, including further education, restrictions from practice, or other means, that will remove those deficiencies. Where rehabilitation and protection are inconsistent, protection shall be paramount.

Applicable Disciplinary Statute


The Division of Medical Quality shall take action against any licensee who is charged with unprofessional conduct ....

General Unprofessional Conduct

6. The Medical Practice Act mandates the Board to take action against any holder of a medical certificate who is guilty of unprofessional conduct. Section 2234 [previously Section 23 61] provides that "( u )nprofessional conduct includes, but is not limited to" certain enumerated conduct. This does not mean, however, that an overly broad connotation is to be given the term "unprofessional conduct;" it must relate to conduct which indicates an unfitness to practice medicine. Unprofessional conduct is that conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574-575.)

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Cause Exists to Impose Discipline

7. Cause exists under Business and Professions Code section 2234 to impose discipline. Clear and convincing evidence established that Dr. Iyengar engaged in the following unprofessional conduct: ( 1) on November 14, 2007, during a surgical procedure in which SM served as the anesthesiologist, Dr. Iyengar told Dr. Vo, another surgeon in the OR, words to the following effect: "You should have seen Dr. [SM] when Dr. Abraham was around - her brassiere got all wet."; (2) in late November 2007, in the doctors' dining room, when SM was speaking to Dr. Iyengar, Dr. Iyengar interrupted SM, put his hand on SM's right shoulder, pulled her close to him, kissed her on the cheek, and said, "I have never kissed you before. I want to take you out and see you get drunk. Do you like Black Label or Blue Label?"; (3) in April 2007, when Dr. Iyengar was Chief of Surgery, HS contacted Dr. Iyengar outside the physician's lounge to let him know that she would be out of town that weekend, after which Dr. Iyengar said, "Oh, so he's better looking than me?" and stepped toward HS and said, ''You know I'm your one true love" and tried to hug and kiss HS; (4) on several other occasions when HS was working at Fountain Valley, Dr. Iyengar patted his hand on the cushion of a sofa he was sitting on and said to HS, "Oh, come here, you are my one true love."; and (5) sometime in 2007, when KF was in the physician's lounge, Dr. Iyengar asked KF to come over and show him her hand, after which Dr. Iyengar took KF' s hand in his hand and kissed the back of it with his lips and tongue. This misconduct was contrary to Fountain Valley's bylaws relating to disruptive behavior and was unbecoming to a member in good standing in the medical profession. It demonstrated an unfitness to practice medicine, albeit relatively slight. ·

The Appropriate Measure of Discipline

8. Dr. Iyengar's license shall be suspended from the practice of medicine for 90 consecutive days, and a public reprimand shall issue advising the public and others of the nature and extent of Dr. Iyengar' s misconduct and that warns Dr. Iyengar of the limitations and restrictions that apply in his interactions with colleagues.

ORDERS

1. 90-Day Actual Suspension:

Physician's and Surgeon's Certificate No. C 42391 issued to Sridhara Iyengar, M.D., is hereby suspended for a period of 90 consecutive calendar days. The suspension shall commence within 30 calendar days of the effective date of this Decision and the suspension shall run for a total of 90 consecutive calendar days thereafter. Within seven (7) calendar days of the effective date of this Decision, Dr. Iyengar shall provide a true copy of this Decision and Accusation Case No. 02-2008-19004 7 to the Chief of Staff or the Chief Executive Officer at every hospital where he holds privileges or where membership has been extended, and at any other health care facility where Dr. Iyengar engages in the practice of medicine including all physician and locum tenens registries or other similar agencies, and to

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the Chief Executive Officer at every insurance canier which extends malpractice insurance coverage to Dr. Iyengar. Within 15 calendar days of the effective date of this Decision, Dr. Iyengar shall submit proof of his compliance with the notification procedures set forth herein to the Medical Board of California.

2. Public Reprimand:

The Decision in this matter constitutes the Medical Board of California's public reprimand of Sridhara Iyengar, M.D. This public reprimand advises Dr. Iyengar that the unprofessional conduct that has been described in the Decision constitutes grounds for discipline, and that his engaging in conduct similar to that giving rise to this Decision will not be tolerated. Prohibited conduct includes, but is not limited to, making comments about the appearance of colleagues, the attractiveness of colleagues to members of the opposite sex, the dating practices of colleagues, or the private conduct of colleagues and, the touching, hugging, or kissing any colleague or the attempt to do so to show affection or respect except for a formal handshake.

DATED: July 6, 2012

~~ JASAHLER Administrative Law Judge Office of Administrative Hearings

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1 EDMUND G. BROWN JR. Attorney General of California

2 THOMAS S. LAZAR Supervising Deputy Attorney General

3 MICHAEL S. COCHRANE Deputy Attorney General

4 State Bar No. 185730 110 West "A" Street, Suite 1100

5 San Diego, CA 92101 P.O. Box 85266

6 San Diego, CA 92186-5266 Telephone: (619) 645-2074

7 Facsimile: (619) 645-2061

8 Attorneys for Complainant

9 BEFORE THE MEDICAL BOARD OF CALIFORNIA

10 DEPARTMENT OF CONSUMER AFFAIRS ST ATE OF CALIFORNIA

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12 In the Matter of the Accusation Against:

13 SRIDHARA IYENGAR, M.D. 11100 Warner Avenue, Suite 320

14 Fountain Valley, CA 92708

15 Physician's and Surgeon's Certificate No. C42391

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Case No. 02-2008-190047

ACCUSATION

Respondent. 17

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Complainant alleges:

PARTIES

20 1. Linda K. Whitney (Complainant) brings this Accusation solely in her

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

22 Consumer Affairs.

23 2. On or about February 1, 1988, the Medical Board of California (Board)

24 issued Physician's and Surgeon's Certificate Number C42391 to Sridhara Iyengar, M.D.

25 (Respondent). The Physician's and Surgeon's Certificate was in full force and effect at all times

26 relevant to the charges brought herein and will expire on July 31, 2011, unless renewed.

27 Ill

28 Ill

JURISDICTION

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

following laws. All section references are to the Business and Professions Code (Code) unless

otherwise indicated.

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5 4. Section 2227 of the Code states:

6 "(a) A licensee whose matter has been heard by an administrative law

7 judge of the Medical Quality Hearing Panel as designated in Section 11371 of the

8 Government Code, or whose default has been entered, and who is found guilty, or

9 who has entered into a stipulation for disciplinary action with the division, may,

1 O in accordance with the provisions of this chapter:

11 "( 1) Have his or her license revoked upon order of the division.

12 "(2) Have his or her right to practice suspended for a period not to exceed

13 one year upon order of the division.

14 "(3) Be placed on probation and be required to pay the costs of probation

15 monitoring upon order of the division.

16 "( 4) Be publicly reprimanded by the division.

17 "(5) Have any other action taken in relation to discipline as part of an

18 order of probation, as the division or an administrative law judge may deem

19 proper.

20 "(b) Any matter heard pursuant to subdivision (a), except for warning

21 letters, medical review or advisory conferences, professional competency

22 examinations, continuing education activities, and cost reimbursement associated

23 therewith that are agreed to with the division and successfully completed by the

24 licensee, or other matters made confidential or privileged by existing law, is

25 deemed public, and shall be made available to the public by the board pursuant to

26 Section 803 .1."

27 Ill

28 Ill

2

5. Section 2234 of the Code states, in pertinent part, "The Division of Medical

2 Quality1 shall take action against any licensee who is charged with unprofessional conduct. .. "

3 6. Unprofessional conduct under Business and Professions Code section 2234 is

4 conduct which breaches the rules or ethical code of the medical profession, or conduct which is

5 unbecoming a member in good standing of the medical profession, and which demonstrates an

6 unfitness to practice medicine. (Shea v. Board of Medical Examiners (1978) 81Cal.App.3d564,

7 575.)

8 CAUSE FOR DISCIPLINE

9 (Unprofessional Conduct)

10 7. Respondent is subject to disciplinary action under sections 2227 and 2234

11 of the Code in that he has engaged in conduct which breached the rules or ethical code of the

12 medical profession, or conduct which was unbecoming a member in good standing of the medical

13 profession, and which demonstrated an unfitness to practice medicine, as more particularly

1.4 alleged hereinafter:

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(a) In or about November 2007, respondent was performing a surgery with Dr.

S.M., a female, and Dr. Q.V., a male. During this surgery, respondent suggested to Dr.

Q.V. that Dr. S.M. was sexually attracted to another male physician, and stated that Dr.

S.M. 's brassiere would get wet when this other physician was around her.

(b) On another occasion, respondent approached Dr. S.M., put his hand on her

shoulder, hugged her, and kissed her on the cheek. Dr. S.M. then tried to push respondent

away from her. Respondent then said that he would like to see Dr. S.M. when she is

drunk, and again attempted to hug her.

(c) In or about April 2007, H.S., a nurse at Fountain Valley Regional Hospital,

reported to respondent that she was going to be away for the upcoming weekend.

1 California Business and Professions Code section 2002, as amended and effective January 1, 2008, provides that, unless otherwise expressly provided, the term "board" as used in the State Medical Practice Act (Bus. & Prof. Code,§§ 2000, et seq.) means the "Medical Board of California," and references to the "Division of Medical Quality" and "Division of Licensing" in the Act or any other provision of law shall be deemed to refer to the Board.

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Respondent suggested that H.S. was having a sexual liaison, put his arm around H.S., and

tried to kiss her. Respondent told H.S. that she was his one true love, and H.S. put her

arms up and pushed respondent away. Subsequently, when respondent would see H.S. in

the doctor's lounge, he told her come over and sit with him, and then reiterated that she

was his one true love.

(d) In or about 2007, respondent approached another physician, Dr. K.F., in the

doctor's lounge at Fountain Valley Regional Hospital. During his interaction with Dr.

K.F., respondent grabbed Dr. K.F.'s hand, leading Dr. K.F. to believe he was looking at

her wedding ring. Respondent then kissed Dr. K.F. 's hand, followed by a "French kiss"

of Dr. K.F. 's hand with his tongue. Dr. K.F. reported that she was "grossed out" and

pulled her hand back and quickly left the doctor's lounge.

(e) In addition to Dr. S.M. and H.S., respondent hugged, or attempted to hug,

other female staff members at Fountain Valley Regional Hospital.

DISCIPLINE CONSIDERATIONS

8. To determine the degree of discipline, if any, to be imposed, complainant

alleges that, on or about June 16, 1995, in a prior disciplinary action entitled "In the Matter of the

Accusation Against Sridhara Iyengar, M.D.," before the Medical Board of California, Case No.

04-1992-19645 (D-5680), respondent's license was revoked, the revocation was stayed, and

respondent was placed on a five-year probation, with various terms and conditions, for "forcing

unwanted familiarities on two female members on two female staff members at Anaheim

Memorial Hospital in 1991 and 1992." That decision is now final and is incorporated by

reference as if fully set forth.

9. On or about January 4, 1999, the Board granted a petition for penalty

relief filed by respondent, based, in part, on respondent's assurance to the Board that he would

not engage in harassing behavior in the future.

Ill

II I

II I

4

Ill

2 PRAYER

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

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

5 1. Revoking or suspending Physician's and Surgeon's Certificate Number

6 C42391, issued to respondent Sridhara Iyengar, M.D.;

7 2. Revoking, suspending or denying approval of respondent Sridhara Iyengar,

8 M.D. 's authority to supervise physician assistants, pursuant to section 3527 of the Code;

9 3. Ordering respondent Sridhara Iyengar, M.D., to pay the Medical Board of

1 O California, if placed on probation, the costs of probation monitoring; and

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LIND Executive Director Medical Board of California Department of Consume/ fairs State of California Complainant

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· y and proper.

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before the medical board of california department of

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