BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against:

KHOI NGOC NGUYEN, M.D.,

Physician's and Surgeon's Certificate No. A36682,

Respondent.

Case No. 09-2013-235858

OAH No. 2015110373

DECISION AFTER NON-ADOPTION

Administrative Law Judge Vallera J. Johnson, State of California, Office of Administrative Hearings, heard this matter in San Diego, California on August 29, 30, 31, and November 1, 2016.

Tessa L. Heunis, Deputy Attorney General, represented complainant Kimberley Kirchmeyer, executive director, Medical Board of California (Board), Department of Consumer Affairs.

Jeffrey Wayne Grass, Esq., Davis, Grass, Goldstein & Finlay, represented Khoi Ngoc Nguyen, M.D.

The matter was submitted on November 9, 2016. 1 Panel B of the Board declined to adopt the proposed decision and issued an Order ofNon-Adoption on February 7, 2017, and subsequently issued a Notice of Oral Argument on March 27,2017. As both Complainant and Respondent summited written argument, and both presented oral argument on this matter on April 26, 2017, the Panel, having read and reviewed the administrative record and heard and considered the arguments presented, Panel B of the Board hereby makes and enters the following as its decision in this matter.

1 The record remained open for receipt of complainant's Motion and Proposed Order Sealing the record. Complainant filed the foregoing document on November 9, 2016. On that date, the record was closed, and the matter was submitted.

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FACTUAL FINDINGS

1. On May 11, 1981, the Medical Board of California issued Physician's and Surgeon's Certificate No. A36682 to Khoi Ngoc Nguyen, M.D. At all times relevant to the charges in the First Amended Accusation, respondent's certificate was in full force and effect and will expire on August 31, 2018, unless renewed or revoked.

2. Kimberly Kirchmeyer filed the First Amended Accusation, Case No. 09-2013-235858, in her official capacity as the executive director of the board.

In the First Amended Accusation, complainant seeks to discipline respondent's certificate alleging that, in his care and treatment of patient F .R., respondent: (1) engaged in acts of gross negligence, (2) engaged in repeated negligent acts, (3) engaged in acts of dishonesty or corruption, (4) failed to maintain adequate and accurate records, and (5) engaged in conduct which breached the rules or ethical code of the medical profession, or conduct that was unbecoming of a member in good standing of the medical profession, and which demonstrates an unfitness to practice medicine.

Respondent disputed the allegations in the Accusation and First Amended Accusation; on that basis, he argued that discipline is not warranted in this case.

Respondent's Education, Training & Experience

3. Respondent was born in Saigon, Vietnam. From 1962 to 1969, he attended medical school in Saigon, that included his internship and residency in general surgery; the residency included thoracic and abdominal surgery.

From 1969 to 1973, respondent served in the army of the Republic of Vietnam. While in the army, he served as a general surgeon. From June 1973 to June 1974, respondent completed a one-year training program in plastic and reconstructive surgery at Georgetown University Hospital. In 1974, respondent returned to Vietnam; during the daytime, respondent specialized in plastic and reconstructive surgery; at night, he worked as a trauma surgeon until the fall of Vietnam in April 1975.

Between August 1975 and June 1979, respondent completed an internship and residency in internal medicine at the University of Oklahoma Health Sciences Center. Thereafter, from July 1979 to July 1981, respondent completed a fellowship in gastroenterology at the University of Oklahoma Health Sciences Center.

In 1981, respondent moved to California, got married and opened a private practice in Apple Valley. He holds staff privileges at St. Mary's Regional Medical Center and at Victor Valley Community Hospital.

Respondent has been board certified in internal medicine since 1980 and in gastroenterology since 1983.

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Standard of Care

4. To ascertain the facts, the standard of care and whether respondent's care and treatment of patient F .R. involved a deviation from the standard of care and, if so, the extent ofthe deviation, testimonial evidence from the parties' expert witnesses and documentary evidence have been considered. James W. Ostroff, M.D. (Dr. Ostroff) testified as complainant's expert witness. Rudolph A. Bedford, M.D. (Dr. Bedford) testified as respondent's expert witness.

5. Dr. Ostroff graduated in 1977 from Cornell Medical College. Between 1977 and 1980, Dr. Ostroff completed his internship and residency at New York Hospital Cornell Medical College, where he served as assistant chief medical resident. Between 1980 and 1982, he completed a fellowship in clinical gastroenterology at the University of California­San Francisco (UCSF).

He is licensed to practice medicine in the states of California and New York.

Since 1980 Dr. Ostroff has been board certified in internal medicine and since 1983 in the subspecialty of gastroenterology.

He has academic and administrative appointments at UCSF.2 He has been a professor of clinical medicine for 20 years, a professor of pediatrics and a professor of radiology for 13 years. Also, he described his administrative appointments. Since 1991 Dr. Ostroffhas been the chief of endoscopy and director of the consult service at UCSF. In January 2016, after 25 years, he stepped aside as chairman of the gastroenterology quality assurance committee; he remains a member of this committee as well as the gastroenterology executive committee.

Since 1993, Dr. Ostroff has been the chief of endoscopy and director of the clinical consult service at UCSF Mount Zion Hospital. Since 2001 it has been an outpatient surgery center.

Since 1982, he has maintained a clinical practice, specializing in gastroenterology. He provides care and treatment for patients in his office and perfonns endoscopic procedures. Approximately half the procedures are ERCPs3 and half are a combination of endoscopy and colonoscopy. For 23 years, he has performed an average of 1000 ERCPs per year. For 25 years, he has performed hundreds of procedures placing stints in the common bile duct and removing stints from the common bile duct per year.

Dr. Ostroff runs a fellowship program in ERCP, one ofthe largest in North America. Throughout his career, Dr. Ostroff has been involved in multiple research protocols and has given multiple lectures. During the hearing, he highlighted two: (1) in January 2004,

2 Dr. Ostroff described his academic positions and explained the process of becoming a professor. It is a sequence, from instructor to assistant professor to associate professor to full professor.

3 Endoscopic retrograde cholangiopancreatography.

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he gave a lecture entitled, "ERCP Tips and Tricks", part of the Stanford University Medical School's course curriculum, and (2) in 2012 he gave a demonstration, performing ERCPs in cases assigned to him in front of gastroenterologists in the northeast.4

Dr. Ostroff holds privileges at Benioff Children's Hospital and privileges to perform the limited procedures allowed at UCSF- Mt. Zion.

Dr. Ostroff is a member ofthe American Gastrointestinal Association and was made a fellow in 2006.5

6. Dr. Ostroff has served as an expert witness previously.

He has served as an expert witness on behalf of the board since 2012 and has provided opinions in six or seven cases; in two of the cases, he determined that there were no departures from the standard of care. Also, for the last 34 years, he has provided forensic evaluation of cases two to three times a year. Most of the cases were resolved without the need for him to testify.

7. To render his opinions in this case, Dr. Ostroff reviewed the information provided by the board's investigator. This included the draft investigation report and the attachments for this case.6 The attachments included:

• 801 report of settlement

• Summary of care of patient F .R. and curriculum vitae of Respondent

• Depositions ofrespondent, S.R., N.H., C.R., F.R., M.R. and A.R.7

• Returned letter and authorizations sent to patient F .R. via

4 To perform the ERCPs, he was issued a temporary license to practice medicine in the State of Connecticut and temporary credentials at New Haven Medical College.

5 To become a fellow, one files an application with the organization. There are criteria with respect to research and recommendations.

6 In addition, a few days before the hearing, Dr. Ostroff reviewed the autopsy report. His review of this document did not change any of Dr. Ostroff's opinion.

Respondent objected because the autopsy report was provided beyond the deadline set in the Pre-hearing Conference Order. Considering the arguments of counsel, the administrative law judge overruled respondent's objection.

7 Family members of patient F.R.

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certified mail

• Signed authorizations for the release of medical information

• Certified medical records of patient F .R. from respondent

• Certificate of death for patient F .R.

• Certified medical records for patient F.R. from Victor Valley Community Hospital

• Certified medical records for patient F.R. from St. Mary

• Medical Center

• Letter of representation from Campbell Finlay

• Article provided by respondent regarding cholangitis

• Letter from respondent, dated October 20, 2014

• CD containing 11 depositions from Thon, Vanni, Callahan & Powell

• CD containing x-ray films for F.R. from Victor Valley Community Hospital

• CD containing x-rays, MRI, ultrasound and aCT scan for F.R. from St. Mary Medical Center

• Audio recording of respondent's October 7, 2014, interview at the board's San Bernardino district office

8. Dr. Bedford obtained his medical degree in 1987 from Case Western Reserve University in Cleveland, Ohio. Between 1987 and 1990, he completed his internship and residency in internal medicine at Cornell New York Hospital. After his residency training, from 1990 to 1992, Dr. Bedford completed a gastroenterology fellowship at Cleveland Clinic Foundation. From 1992 to 1993, he completed an advanced fellowship in gastroenterology; during this fellowship, he subspecialized in ERCPs and endoscopic ultrasounds at St. Luke's Hospital in Wisconsin. After he completed his training in 1993, Dr. Bedford moved to California.

Since 1994 Dr. Bedford has been licensed to practice medicine in California.

Initially, from 1994 to 1995, he was in practice at California Pacific Medical Center in San Francisco. He is a transplant hepatologist and therapeutic endoscopist utilizing

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ERCPs with liver transplant patients. After that Dr. Bedford was recruited to the University of California- Los Angeles (UCLA) where he became the director of the pancreatic-biliary services program director; he is an associate clinical professor at UCLA, where he teaches fellows. Thereafter, for personal reasons, he began practicing in Santa Monica, affiliated with St. Joseph Hospital, where he is the director of the gastroenterology laboratory. When called upon to do so, he performs specialized procedures at UCLA.

Since 2014 Dr. Bedford has been president of Southern California Gastroenterology Society. From 2015 to 2016 he has been the course director for the gastroenterology board review course.

He holds hospital privileges at: (1) UCLA in Westwood, (2) UCLA in Santa Monica, (3) St. John's Hospital in Santa Monica, (4) Marina del Rey Hospital in Marina del Rey, and (5) Southern California Hospital in Culver City.

Dr. Bedford is board certified in internal medicine and gastroenterology.

During his career, Dr. Bedford has performed 8,000 ERCP procedures. He has placed over 6,000 stents and has removed closer to 4,000 stents. He has treated patients with cholangitis and has treated patients who have developed sepsis associated with cholangitis.

9. Dr. Bedford described the information upon which he relied in rendering his opinions. In addition to the information reviewed by Dr. Ostroff, Dr. Bedford reviewed the following documents:

• Written memorandum from CCU Medical Consultant Stephen Moff, M.D.

• Expert letter to Dr. Ostroff

• Written opinion, dated January 15, 2015, from Dr. Ostroff

• Transcript of respondent's October 7, 2014, interview

10. Doctors Ostroff and Bedford were impressive expert witnesses and wellqualified to render their opinions. Each had impressive credentials that included the appropriate education, training and experience. Each was familiar with the relevant procedures and issues in this case. Each relied on reasonable information in rendering his opinions. Each understood the standard of care, deviation from the standard of care, simple departure and extreme departure from the standard of care. There is no evidence that either expert witness was particularly biased.

Some opinions were consistent while others were contradictor. The instance of inconsistency was evaluated separately.

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Facts Underlying the Charges

11. On June 22, 2010, respondent provided a consultation for patient F .R. after an abdominal ultrasound showed that the patient had cholelithiasis8 and choledocholithiasis. 9

The patient's elevated liver enzymes and dilated bile duct indicated a moderate to high probability of the possibility of stones and warranted a preoperative ERCP and sphincterotomy. The purpose of the consultation was to remove a suspected common bile duct stone prior to a cholecystectomy. 10

12. On June 28, 2010, respondent performed an ERCP with sphincterotomy and balloon sweeping ofthe common bile duct. He was unable to determine if he had successfully removed the suspected common bile duct stone from patient F .R.' s dilated bile duct and placed an 8.5-French 5 em stent into the common bile duct.

13. An ERCP is an endoscopic procedure to examine the patient's upper gastrointestinal tract. The patient is sedated, brought into a room that has an x-ray fluoroscopy machine and laid on his stomach or the left lateral portion of his stomach. The duodenoscope, a thin flexible instrument with a camera at the end, has a side-viewing port. It has channels through which equipment can be passed. The scope is inserted into the mouth, passed into the esophagus, stomach and duodenum to the ampulla ofvater.

During the procedure, a sphincterotome is passed into the bile duct; it is used to cannulate the ampulla to make the hole larger. The sphincter of oddi, a muscle that opens and closes to regulate bile flowing from the liver, is cut so that this muscle is completely open so that everything drains through the bile duct with nothing holding it back.

The next step is an attempt to remove the stone from the bile duct. There are various methods to remove the stone. The most common is to sweep the bile duct with a balloon that is the size of the diameter of the bile duct; to put the balloon into the bile duct, the deflated balloon is put on top of the guide wire, put at the bifurcation (known as the common bile duct); the balloon is inflated and slowly swept to the opening; the opening is large enough to accommodate anything up to one centimeter or a little larger; and usually the stone will pop out. Sometimes the physician does not see the stone pop out because of the way the scope is angled. If he is not sure if he got the stone out, the next step is for the physician to put in a stent (a plastic tube) to make sure the bile duct is wide open. If there is a stone in the duct, the placing of the stent allows bile to drain, and the stone to pass.

As the procedure is performed, the physician is not able to see into the bile duct with the camera that is on the scope; instead, he is looking at the ampulla, using the x-ray machine as a fluoroscope as he injects the dye; he is looking at the contrast dye and the outlines made by the contrast; he is seeing the outline of the bile ducts and may see the outline of a stone.

8 Cholelithiasis is the medical term for gallstone disease.

9 Choledocholithiasis is the presence of at least one gallstone in the common bile duct. 10 A cholecystectomy is the surgical removal ofthe gallbladder.

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Respondent followed the procedure described in the foregoing paragraphs in his care and treatment of patient F.R. on June 28,2010.

14. Stents can be expected to occlude after six months and form a nidus for the formation of other stones, mud and debris around the stent.

15. In patient F .R.' s medical chart, respondent noted: "will pull the stent out in 2 months."

16. Respondent next saw patient F.R. on November 24,2010 in his office. A second ERCP was scheduled for February 10, 2011 to remove the stent.

1 7. Patient F .R. 's medical chart contains no record of instructions given to patient F.R. or his family member(s) regarding the removal of the stent.

18. Patient F.R.'s medical chart contains no explanation for the passage of time between the placement ofthe stent on June 28,2010 and the removal ofthe stent on February 10, 2011.

19. On February 10,2011, at or about 8:30a.m., respondent performed a second ERCP on patient F.R. and removed the stent (second ERCP).

20. During the second ERCP, respondent performed a balloon sweep. Patient F .R. 's medical chart contains no clear documentation that all ducts were swept.

21. No antibiotics were prescribed or administered to patient F.R. immediately before, during or after the second ERCP.

22. After the second ERCP, patient F.R. was discharged from the endoscopy facility. Several hours later, patient F .R.' s wife called respondent's office to report that patient F.R. was experiencing chills, pain in his back and stomach. Respondent and/or his staff advised that patient F.R. should be brought to respondent's office right away.

At or about 6:00 p.m., after efforts to convince patient F .R.' s wife to bring the patient to his office had been unsuccessful, respondent noted in the patient chart that he advised patient F .R.' s wife to bring the patient to the office the following morning, if pain persisted.

Thereafter, respondent prescribed Amoxicillin 500 mg to be taken three times a day for patient F .R.

23. The following morning, patient F.R.'s condition had not improved. Further conversations took place between respondent and/or his office staff and patient F .R. 's wife. Patient F.R. arrived at Victor Valley Community Hospital at or about noon on February 11, 2011.

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24. On October 7, 2014, at the subject interview, respondent stated that there had been several telephone calls between his office and patient F.R.'s wife on February 10, 2011, and/or February 11, 2011. Further, he stated that he and/or his staff had impressed upon patient F.R. 's wife the severity of patient F.R. 's condition and that it was matter oflife and death that patient F.R. receive urgent medical attention, but that patient F.R.'s wife apparently failed to understand and/or take respondent's comments seriously.

However, respondent did not document in the chart for patient F .R.: ( 1) the frequency ofthe conversations, (2) the information given to patient F.R.'s wife, or (3) his wife's failure or refusal to understand the information.

25. On February 11, 2011, at or about 1:30 p.m., patient F .R. was admitted to Victor Valley Community Hospital and was found to be critically ill, suffering from severe sepSIS.

26. Respondent obtained various consults for patient F .R., including a gastrointestinal consultant, Dr. B., who performed an ERCP on patient F.R. on February 12, 2011 (third ERCP). Dr. B. found "clear evidence of a biliary obstruction as evidenced by dark pigmented bile and extensive amounts of bloody liquid and sand-like material concerning for hemobilia." 11 Dr. B. diagnosed "biliary obstruction resulting in ascending cholangitis and sepsis" and placed a stent in the common bile duct.

27. On February 12, 2011, patient F.R. passed away.

28. On February 16,2011, respondent completed a two-page note in patient F.R.'s medical chart, entitled "Death Summary" and marked "Final Report," in which he made the following comments:

Endoscopic retrograde cholangiopancreatography was performed 2 or 3 months ago ... for common bile stone retrieval with stenting of the common bile duct. ... His condition continued to deteriorate. During the night, his oxygen saturation began to deteriorate, suggesting acute respiratory distress syndrome. He was intubated and put on the machine. The blood pressure was kept on Dopamine and Neo­Synephrine. But, in spite of this, on 2/12/2011 after all the resources have [sic] been pulled out, I have a hunch that he would not make it because of multi organ [sic] failure. Therefore, I called the family and explained the grave situation as best that I could.

The patient finally expired on 2112/2011.

Respondent listed the final diagnosis as "septic shock, death."

11 Hemobilia is bleeding from the biliary tree.

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29. Respondent's "Death Summary" for patient F.R. contained no mention of the third ERCP, performed on February 12, 2011 or Dr. B's diagnosis of biliary obstruction.

Allegations ofGross Negligence

30. Complainant alleged that respondent committed gross negligence in his care and treatment of patient F.R. because respondent failed to perform, and/or document that he performed a complete ERCP on February 10,2011.

Dr. Ostroff established that, in a case, where a stone was missed on a prior ERCP and a stent remained in the common bile duct for seven and one-half months, the standard of care required that respondent perform a complete ERCP, fill all ducts, meticulously sweep all ducts and ensure that there was ample documentation of the procedure and the findings. Dr. Bedford did not dispute the foregoing.

In Dr. Ostroff's opinion, respondent did not perform or document that he performed a complete ERCP on February 10,2011. In rendering his opinion, Dr. Ostroff relied on respondent's operative report and the radiologic evidence. In his operative note, respondent described the procedure performed as ERCP "with removal of the stent and visualization of the common bile duct to check for retained stone."

Under "Procedure in Detail", respondent's operative report states:

The scope was inserted into the esophagus down to the stomach. The pylorus was visualized. The tip ofthe scope was passed into the pylorus, down to the second portion of the duodenum. We see the stent coming out. We grasped the stent with the snare and removed the scope. Then, we used the sphincterotome and we succeed to visualize the common bile duct. There was some bubble, but no stone.

At any rate, we removed the sphincterotome and replaced it with the balloon with a guidewire and we made a sweep through the common bile duct stone. There was no stone coming out. The caliber of the common bile duct is normal size.

The guidewire, the balloon, and the scope was then retrieved. The patient tolerated the procedure well.

Under "Impression", respondent stated:

• Status post cholecystectomy status post ERCP with common bile duct stone removal.

• No retained stone left.

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• Removal of the stent.

Based on respondent's operative report, Dr. Ostroff concluded that respondent made a sweep of the common bile duct; no stone came out; respondent determined the bile duct was normal caliber; thereafter he retrieved the balloon. In his report, respondent made no mention of sweeping: (1) any other part of the biliary tree, (2) the common hepatic duct; (3) the left or right intrahepatic biliary tree. Based on the radiologic evidence from the procedure reviewed by Dr. Ostroff, he visualized that respondent swept the common bile duct once but did not visualize the extensive sweeping described in this paragraph.

Dr. Ostroff's opinion is supported by the fact that, within a few hours of the procedure performed by respondent, patient F.R.'s wife called respondent's office complaining of symptoms (chills and pain in stomach and back) consistent with sepsis, the subsequent deterioration of the patient's condition and Dr. B's ultimate finding, after his ERCP, that patient F .R. had an obstruction.

Further, during the board interview in 2014, respondent stated that he did not perform a complete cholangiogram during the second ERCP; however, during the hearing, he testified that he did so, reviewed the x-rays from the procedure he performed on February 10,2011 and described his actions on the x-rays. When asked about the discrepancy between his statements during the board interview and his testimony in this hearing, respondent explained that he did not have access to the fluoroscopic x-rays.

During the hearing, respondent and Dr. Bedford reviewed the fluoroscopic images from the procedure that respondent performed on February 10, 2011. Based on Dr. Bedford and respondent's testimony, it was established that respondent performed the procedure in accordance with Dr. Ostroff's description. Dr. Ostroff had no recollection that he reviewed more than one fluoroscopic x-ray of the procedure. Therefore, it was not established Dr. Ostroff reviewed all the images reviewed by respondent and Dr. Bedford.

31. Accordingly, the evidence established that respondent performed a complete ERCP on February 10, 2011.

32. The evidence did not establish that respondent documented that he performed a complete ERCP on February 10,2011. Accordingly, Respondent committed gross negligence in his care and treatment of patient F .R. when he failed to document that he performed a complete ERCP on February 10, 2011.

Allegations of Repeated Negligent Acts

33. Complainant alleged that, in his care and treatment of patient F .R., respondent engaged in repeated negligent acts. Many of the allegations were based on respondent's failure to adequately document patient F .R.' s medical record. Dr. Ostroff opined repeatedly that respondent did not engage in certain conduct because it was not documented. Dr. Bedford opined that a physician cannot document everything as he practices medicine and

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that respondent's documentation was adequate. Both opinions are reasonable and have been considered in making the following findings.

34. Complainant alleged that respondent failed to timely remove the stent placed in patient F.R. during the first ERCP, and he failed to provide patient F.R. with a clear understanding about the importance of timely removal of the stent. Except for the respondent's medical record for the patient and respondent's testimony, there is no evidence regarding this issue.

Respondent placed the stent in June 2010. The patient returned almost five months later, and respondent scheduled and removed the stent almost eight months after it was placed. The experts agreed that the stent should be removed in four months; sometimes, the stent remains longer through no fault of the physician.

In this case, after placing the stent, based on the documentation in the patient's record and respondent's testimony, it was established that respondent had planned to remove the stent in two to three months. There is nothing in the medical record for patient F.R. that respondent explained to him or his family the importance of having the stent removed within four months of the potential consequence of failure to do so. There is nothing in the medical record for patient F.R. of respondent's efforts or the problems scheduling the second ERCP.

Respondent testified that he orally instructed the patient to return to his office in two or three months and gave him a business card with the telephone number. He did not provide the patient with instructions or explain [orally or in writing] the significance of timely removal of the stent.

Respondent testified regarding the difficulty scheduling the second ERCP and removal of the stent. He did not explain whether he made the effort, whether his staff that did so or the time frames within which he did so.

Based on the foregoing facts, respondent failed to provide patient F .R. with information about the importance of the timely removal of the temporary stent; respondent failed to ensure timely removal of the temporary stent.

35. Respondent failed to ensure that patient F.R. and/or his family member(s) had information and therefore a proper understanding of: the risks associated with performance of the second ERCP, the possible warning signs and importance of symptoms to watch for in patient F .R. after the procedure; and if those signs and symptoms were present, the necessary actions to take and the urgency with which they should be taken.

There is no evidence in the record that respondent provided the foregoing information. Therefore, he made no effort to ensure that the patient or family members had a clear understanding of the foregoing.

36. Respondent failed to maintain adequate and accurate records ofhis care and treatment of patient F .R.

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37. In summary, respondent committed repeated negligent acts in his care and treatment of patient F .R. which included, but was not limited to:

• He failed to ensure timely removal of the temporary stent which was placed in patient F.R. during the first ERCP, which included respondent's failure to ensure that patient F.R. had information/clear understanding of the importance of the timely removal ofthe temporary stent;

• He failed to ensure that patient F .R. and/or his responsible family member(s) had proper information/understanding of the risks associated with performing the second ERCP, the possible warning signs and important symptoms to watch for in patient F .R. after the procedure, and if those signs and symptoms were present, the necessary actions to take and the urgency with which they should be taken;

• He failed to perform, and/or document that he had performed a complete ERCP at the second ERCP on patient F.R. on February 10, 2011; and

• He failed to maintain adequate and accurate records of his care and treatment of patient F .R.

Allegations of Dishonesty or Corruption

38. Complainant alleged that respondent committed an act or acts of dishonesty or corruption based on his disclosure on October 30, 2013 and information available to him on February 12, 2011.

39. On October 30, 2013, respondent provided the board with his explanation of his care and treatment of patient F .R. In the explanation, respondent stated, in part:

I evaluated the patient in the late afternoon on February 12, 2011 and noted his condition was clearly deteriorating. I contacted another gastroenterologist who was going to be on call for me that evening. I contact [sic] a gastroenterologist so an ERCP could be performed on the remote chance the patient had a biliary obstruction. No obstruction of the common bile duct was noted. No injury to the common bile duct was seen, thereby ruling out injury during the procedure I performed to remove the stent the day before. A common bile duct stent was placed for biliary decompression. (Emphasis added.)

At the time of providing this explanation to the board, respondent was familiar with Dr. B.'s operative report, prepared on or about February 12, 2011, and with Dr. B.'s findings after performing the ERCP on patient F.R. Dr. B.'s operative report provided, in part:

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FINDINGS

1. Biliary obstruction resulting in ascending cholangitis and seps1s.

2. Clear evidence of biliary obstruction ...

Respondent testified that when respondent made the statements in his October 20, 2013 letter to the board, he did not disclose Dr. B.'s findings because he did not agree with Dr. B.'s findings.

40. The Administrative Law Judge found that when respondent made the statements in his October 20, 2013 letter to the board and did not disclose Dr. B.'s findings, respondent committed an act or acts of dishonesty and Respondent's act of dishonesty is substantially related to the duties of a physician and surgeon. Upon its review of the administrative record, the Panel finds that this alleged violation cannot be substantiated.

Allegations of Failure to Maintain Adequate and Accurate Records

41. In his care and treatment of patient F .R., respondent failed to maintain adequate and accurate records.

Evaluation

42. Respondent has been licensed by the board more than 25 years. There is no evidence of prior discipline by the board or any hospital. It appears that he has a busy medical practice. There is no evidence that he has an appreciation of his deficiencies in documentation ..

LEGAL CONCLUSIONS

The Purpose of Disciplinary Proceedings

1. The purpose of an administrative disciplinary proceeding is not to punish but to protect the public from dishonest, immoral, disreputable or incompetent practitioners. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.)

Burden and Standard of Proof

2. 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, or evidence so clear as to leave no substantial doubt; sufficiently strong evidence to command the unhesitating assent of every reasonable mind.

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(Katie V v. Superior Court (2005) 130 Cal.App.4th 586, 594.)

Statutory Authority

3. Section 2227 of the Code states that a licensee who is found guilty under the Medical Practice Act may have his license revoked, suspended for a period not to exceed one year, placed on probation and required to pay the costs of probation monitoring, be publicly reprimanded or have such other action taken in relation to discipline as the medical board deems proper.

4. Section 2234 of the Code states, in part:

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

(b) Gross negligence.

(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts.

(1) An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act.

(2) When the standard of care requires a change in the diagnosis, act, or omission that constitutes the negligent act described in paragraph (1 ), including, but not limited to, a reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs from the applicable standard of care, each departure constitutes a separate and distinct breach of the standard of care.

(e) The commission of any act involving dishonesty or corruption that is substantially related to the qualifications, or duties of a physician and surgeon.

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5. Code section 2266 states:

Case Law

The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.

6. When a physician assumes care for a patient, he has a duty to provide care that is within accepted standards. Moreover, "[t]here is no profession where the patient passes so completely within the power and control of the operator as does the medical patient." (Fuller v. Board of Medical Examiners (1936) 14 Cal.App.2d 734, 741-742.) A patient, being unlearned in the medical sciences, must depend on the inherent trust underlying the patient­physician relationship. Indeed, as the California Supreme Court has stated: " ... the patient is fully entitled to rely upon the physician's skill and judgment while under his care, and has little choice but to do so." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102.)

7. "[W]e must also be mindful of the fact that, when it comes to treating their patients, physicians occupy a position of implicit trust. A medical professional who holds him or herself out to the public as one available to administer to the medical needs of patients through examination and treatment is burdened with the duty to act for medical purposes in dealing with patients seeking medical care. There is an inherent trust and confidence which a patient seeking medical care places in the professional and upon which a patient relies in allowing the professional access to the most intimate parts of the body." (People v. Pham (1976) 180 Cal.App.4th 919, 926.)

8. It is well-settled that "a physician or surgeon [must] have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment ofhis patient ... " (Huffman. Lindquist (1951) 37 Cal.2d 465,473, insert added, see also Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at 998.) Whether he has done so in a particular case is generally a question for experts and can be established only by their testimony unless the matter in issue is within the common knowledge of laymen. [citation]" (Trindle v. Wheeler (1943) 23 Cal.2d 330, 333.)

9. A physician's conduct as a physician can be the subject of discipline if he has engaged in acts that are defined as "unprofessional conduct." In the administrative discipline context, unprofessional conduct refers to acts or omissions that satisfy the definition of gross negligence, repeated negligent acts and/or dishonesty or corruption.

10. Pursuant to Section 2234, subdivision (b), the commission of gross negligence in the practice of medicine constitutes unprofessional conduct. Gross negligence is "an extreme departure from the ordinary standard of care." (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 198.) "[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, 997, citation

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omitted.).

11. A physician is not necessarily negligent because he errs in judgment or because his efforts prove unsuccessful. He is negligent only if his error in judgment or lack of success is due to a failure to perform any of the duties required of reputable members of his profession practicing in the same or similar locality under similar circumstances. (Norden v. Hartman (1955) 134 Cal.App.2d 333, 337; Black v. Caruso (1960) 187 Cal.App.2d 195.)

Respondent had a duty to perform professional medical services for patients with the degree of learning and skill ordinarily possessed by a reputable physician practicing in the same or similar locality and under similar circumstances. It was his duty to use the care and skill ordinarily used in like cases by reputable members of his profession practicing in the same or similar locality under similar circumstances and to use reasonable diligence and his best judgment in the exercise of his professional skill and in the application of his learning, in an effort to accomplish the purpose for which he was consulted. A failure to fulfill any such duty is negligence. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279; Huffman v. Lundquist (1951) 37 Cal.2d 465; 473 BAJI 7th Ed. No. 6.00, 6.37.)

12. Pursuant to Section 2234, subdivision (c), the commission of repeated negligent acts in the practice of medicine constitutes unprofessional conduct. Repeated negligent acts are two or more grossly or ordinarily negligent acts. Such acts need not be "similar" or part of a "pattern" in order to constitute repeated negligent acts. (Zabetian v. Medical Board of California (2000) 80 Cal.App.4th 462, 468.) "Under existing law, the standard of care applicable to a medical professional (i.e., the custom and practice in the relevant medical community) must be established by expert testimony. [citation]" (NNV v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1385). It "is a matter peculiarly within the knowledge of experts; ... " (Sinz v. Owens (1949) 33 Cal.2d 749, 753.)

Violations

13. Cause exists to discipline respondent's certificate for unprofessional conduct under Code sections 2227 and 2234, in that he committed gross negligence in his care and treatment of patient F .R.

14. Cause exists to discipline respondent's certificate for unprofessional conduct under Code sections 2227 and 2234, in that he committed repeated negligent acts in his care and treatment of patient F .R.

15. In Paragraph 40 ofthe Factual Findings, the Administrative Law Judge determined that Respondent committed act of dishonesty regarding the letter he submitted to the Board and his omission of Dr. B' s findings with respect to patient F .R. Panel B finds that this alleged violation was not sufficiently proven to the applicable standard. Therefore, the Panel finds that cause does not exist to discipline respondent's certificate for unprofessional conduct under Code sections 2227 and 2234, in that he committed dishonesty or corruption in his care and treatment of patient F .R.

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16. Cause exists to discipline respondent's certificate in that he failed to maintain adequate and accurate records relating to his care and treatment of patient F .R.

17. Pursuant to Code section 2234, cause exists to discipline respondent's certificate in that he engaged in conduct that breached the rules of ethical conduct of the medical profession and engaged in conduct that is unbecoming a member in good standing of the medical profession and that demonstrates an unfitness to practice medicine. (Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461, 470.)

Discipline

18. In determining the appropriate discipline, consideration has been given to the legislative intent that the purpose of the statutory scheme to license and discipline physicians and surgeons is to protect the public interest, rather than punish a wrongdoer. (Fahmy v. Medical Board of California (1995) 38 Cal.App.4th 810.)

19. The primary purpose of disciplinary action is to protect the public. (Bus. & Prof. Code, § 2229, subd. (a).) The Medical Practice Act emphasizes that the board should "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." (Bus. & Prof. Code,§ 2229, subd. (c).) However, "[w]here rehabilitation and protection are inconsistent, protection shall be paramount." (Bus. & Prof. Code,§ 2229, subd. (c).)

20. The Panel is particularly concerned with Respondent's recordkeeping or perhaps more accurately, the lack thereof. Accordingly, the Panel believes that, to adequately protect the public, the level of discipline ordered should reflect the Board's Disciplinary Guidelines with two slight modifications. The first modification is to require a practice monitor focused on recordkeeping and the second is to require completion of educational coursework with a specific emphasis on improved patient communication. Additionally, the order will prohibit Respondent from performing ERCP procedures while on probation. Therefore, having considered the facts, the violations, respondent's lack of appreciation of his deficiencies in documentation, and F.R. to the board, the following order is made.

ORDER

Physician's and Surgeon's Certificate Number A 36682 issued to Khoi Ngoc Nguyen is revoked. However, the order of revocation is stayed, and Khoi Ngoc Nguyen is placed on probation for five years upon the following terms and conditions.

1. Professionalism Program (Ethics Course)

Within 60 calendar days of the effective date of this Decision, respondent shall enroll in a professionalism program, that meets the requirements of Title 16, California Code of

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Regulations, section 1358. Respondent shall participate in and successfully complete that program. Respondent shall provide any information and documents that the program may deem pertinent. Respondent shall successfully complete the classroom component of the program not later than six months after respondent's initial enrollment, and the longitudinal component of the program not later than the time specified by the program, but no later than one year after attending the classroom component. The professionalism program shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of his license.

A professionalism program taken after the acts that gave rise to the charges in the First Amended Accusation but prior to the effective date of the Decision may, in the sole discretion of the board or its designee, be accepted towards fulfillment of this condition if the program would have been approved by the board or its designee had the program been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the board or its designee not later than 15 calendar days after successfully completing the program or not later than 15 calendar days after the effective date of this Decision, whichever is later.

2. Medical Record Keeping Course

Within 60 calendar days of the effective date ofthis Decision, respondent shall enroll in a course in medical record keeping equivalent to the Medical Record Keeping Course offered by the Physician Assessment and Clinical Education Program, University of California, San Diego School of Medicine (Program), approved in advance by the board or its designee. Respondent shall provide the Program with any information and documents that the Program may deem pertinent. Respondent shall participate in and successfully complete the classroom component of the course not later than six months after respondent's initial enrollment. Respondent shall successfully complete any other component of the course within one year of enrollment. The medical recordkeeping course shall be at respondent's expense and shall be in addition to the CME requirements for renewal of his license.

A medical record keeping course taken after the acts that gave rise to the charges in the First Amended Accusation, but prior to the effective date of the Decision may, in the sole discretion of the board or its designee, be accepted towards the fulfillment of this condition if the course would have been approved by the board or its designee had the course been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the board or its designee not later than 15 calendar days after successfully completing the course, or not later than 15 calendar days after the effective date of the Decision, whichever is later.

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3. Education Course

Within 60 calendar days of the effective date ofthis Decision, and on an annual basis thereafter, respondent shall submit to the Board or its designee for its prior approval educational program(s) or course(s) which shall not be less than 40 hours per year, for each year of probation. The educational program(s) or course(s) shall be aimed at correcting any areas of deficient practice or knowledge and shall be Category I certified. At least eight hours of completed coursework per year shall be directed at improved patient communication.

The educational program(s) or course(s) shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure. Fallowing the completion of each course, the Board or its designee may administer an examination to test respondent's knowledge of the course. Respondent shall provide proof of attendance for 65 hours of CME of which 40 hours were in satisfaction of this condition.

4. Practice Monitor- Emphasis on Recordkeeping

Within 30 calendar days of the effective date ofthis Decision, respondent shall submit to the Board or its designee for prior approval as a practice monitor, the name and qualifications of one or more licensed physicians and surgeons whose licenses are valid and in good standing, and who are preferably American Board of Medical Specialties (ABMS) certified. A monitor shall have no prior or current business or personal relationship with respondent, or other relationship that could reasonably be expected to compromise the ability of the monitor to render fair and unbiased reports to the Board, including but not limited to any form of bartering, shall be in respondent's field of practice, and must agree to serve as respondent's monitor. Respondent shall pay all monitoring costs.

The Board or its designee shall provide the approved monitor with copies of the Decision(s) and Accusation(s), and a proposed monitoring plan related to Respondent's recordkeeping practices. Within 15 calendar days of receipt ofthe Decision(s), Accusation(s), and proposed monitoring plan, the monitor shall submit a signed statement that the monitor has read the Decision(s) and Accusation(s), fully understands the role of a monitor, and agrees or disagrees with the proposed monitoring plan. If the monitor disagrees with the proposed monitoring plan, the monitor shall submit a revised monitoring plan with the signed statement for approval by the Board or its designee.

Within 60 calendar days ofthe effective date of this Decision, and continuing throughout probation, respondent's practice with respect to recordkeeping shall be monitored by the approved monitor. Respondent shall make all records available for immediate inspection and copying on the premises by the monitor at all times during business hours and shall retain the records for the entire term of probation.

If respondent fails to obtain approval of a monitor within 60 calendar days of the effective date of this Decision, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified.

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Respondent shall cease the practice of medicine until a monitor is approved to provide monitoring responsibility.

The monitor(s) shall submit a quarterly written report to the Board or its designee which includes an evaluation of respondent's recordkeeping, indicating whether respondent's recordkeeping practices are within the standards of practice of medicine and whether respondent is adhering to those standards, It shall be the sole responsibility of respondent to ensure that the monitor submits the quarterly written reports to the Board or its designee within 10 calendar days after the end of the preceding quarter.

If the monitor resigns or is no longer available, respondent shall, within 5 calendar days of such resignation or unavailability, submit to the Board or its designee, for prior approval, the name and qualifications of a replacement monitor who will be assuming that responsibility within 15 calendar days. If respondent fails to obtain approval of a replacement monitor within 60 calendar days of the resignation or unavailability of the monitor, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified Respondent shall cease the practice of medicine until a replacement monitor is approved and assumes monitoring responsibility.

5. Prohibited Practice

During the term of his probation, Respondent shall be prohibited from performing ERCP procedures.

6. Notification

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

7. Supervision of Physician Assistants

During probation, respondent is prohibited from supervising physician assistants.

8. Obey All Laws

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

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9. 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.

10. General Probation Requirements

A. Compliance with Probation Unit- Respondent shall comply with the board's probation unit and all terms and conditions of this Decision.

B. Address Changes- At all times, respondent shall keep the board informed of respondent's business and residence addresses, email address (if available), and telephone number(s). 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 Code section 2021, subdivision (b).

C. Places 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.

D. License Renewal - Respondent shall maintain a current and renewed California Physician's and Surgeon's Certificate.

E. 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 that lasts, or is contemplated to last, more than 30 calendar days.

In the event respondent leaves 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.

11. Interview with the Board or Designee

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

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12. 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, as defined in Code sections 2051 and 2052, is any period of time that respondent is not practicing medicine in California, 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 that 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 non-practice. 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, prior to resuming the practice of medicine, respondent shall successfully complete a clinical training program that meets the criteria of Condition 1 of this Order. Respondent's period of non-practice while on probation shall not exceed two years. Periods of non-practice will not apply to the reduction ofthe probationary term. Periods of non-practice will relieve respondent ofthe 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.

13. Probation Monitoring Costs

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

14. Violation of Probation

Failure to comply with any term or condition of probation is a violation of probation. If respondent violates probation in any respect, after giving respondent notice and the opportunity to be heard, the board may revoke probation and carry out the disciplinary order that was stayed. If an Accusation, 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.

15. License Surrender

Following the effective date ofthis Decision, if respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy the terms and conditions of probation, respondent may request to surrender his license. The board reserves the right to evaluate respondent's request and to exercise its discretion in determining whether or not to

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grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon formal acceptance of the surrender, within 15 calendar days, respondent shall deliver his wallet and wall certificate to the board or its designee, and he 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.

16. Completion of Probation

Respondent shall comply with all financial obligations not later than 120 calendar days prior to the completion of probation. Upon successful completion of probation, respondent's physician's and surgeon's certificate shall be fully restored.

This Decision shall become effective at 5:00p.m. on June 23 2017

IT IS SO ORDERED ---'~'-"""-y---"'24=,~--=20~1-'-7 ____ _

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Michelle Bholat, M.D., Chair Panel B

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of First Amended Accusation Against:

KHOI NGOC NGUYEN, M.D.

Physician's & Surgeon's Certificate No: A36682

Respondent

) ) ) ) ) ) ) ) )

Case No.: 09-2013-235858

OAH No.: 2015110373

______________________________)

ORDER OF NON-ADOPTION OF PROPOSED DECISION

The Proposed Decision of the Administrative Law Judge in the above-entitled matter has been non-adopted. A panel of the Medical Board of California (Board) will decide the case upon the record, including the transcript and exhibits of the hearing, and upon such written argument as the parties may wish to submit directed to the question of whether the proposed penalty should be modified. 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 Diamond Court Reporters, 1107 2nd Street, Suite 210, Sacramento, CA 95814. The telephone number is (916) 498-9288

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: February 7, 2017

MEDICAL BOARD OF CALIFORNIA 2005 Evergreen Street, Suite 1200 Sacramento, CA 95815-3831 (916) 576-3216 Attention: Robyn Fitzwater

Michelle Bhlot, M.D., Chair PanelB

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against:

KHOI NGOC NGUYEN, M.D.

Physician's and Surgeon's Certificate No. A36682

Respondent.

Case No. 09-2013-235858

OAH No. 2015110373

PROPOSED DECISION

Administrative Law Judge Vallera J. Johnson, State of California, Office of Administrative Hearings, heard this matter in San Diego, California on August 29, 30, 31, and November 1, 2016.

Tessa L. Heunis, Deputy Attorney General, represented complainant Kimberley Kirchmeyer, executive director, Medical Board of California, Department of Consumer Affairs.

Jeffrey Wayne Grass, Esq., Davis, Grass, Goldstein & Finlay, represented Khoi Ngoc Nguyen, M.D.

The matter was submitted on November 9, 2016. 1

FACTUAL FINDINGS

l. On May 11, 1981, the Medical Board of California issued Physician's and Surgeon's Certificate No. A36682 to Khoi Ngoc Nguyen, M.D. At all times relevant to the charges in the First Amended Accusation, respondent's certificate was in full force and effect and will expire on August 31, 2018, unless renewed or revoked.

1 The record remained open for receipt of complainant's Motion and Proposed Order Sealing the record. Complainant filed the foregoing document on November 9, 2016. On that date, the record was closed, and the matter was submitted.

2. Kimberly Kirchmeyer filed the First Amended Accusation, Case No. 09-2013-235858, in her official capacity as the executive director of the board.

In the First Amended Accusation, complainant seeks to discipline respondent's certificate alleging that, in his care and treatment of patient F .R., respondent: ( 1) engaged in acts of gross negligence, (2) engaged in repeated negligent acts, (3) engaged in acts of dishonesty or corruption, ( 4) failed to maintain adequate and accurate records, and ( 5) engaged in conduct which breached the rules or ethical code of the medical profession, or conduct that was unbecoming of a member in good standing of the medical profession, and which demonstrates an unfitness to practice medicine.

Respondent disputed the allegations in the Accusation and First Amended Accusation; on that basis, he argued that discipline is not warranted in this case.

Respondent's Education, Training & Experience

3. Respondent was born in Saigon, Vietnam. From 1962 to 1969, he attended medical school in Saigon, that included his internship and residency in general surgery; the residency included thoracic and abdominal surgery.

From 1969 to 1973, respondent served in the army of the Republic of Vietnam. While in the army, he served as a general surgeon. From June 1973 to June 1974, respondent completed a one-year training program in plastic and reconstructive surgery at Georgetown University Hospital. In 197 4, respondent returned to Vietnam; during the daytime, respondent specialized in plastic and reconstructive surgery; at night, he worked as a trauma surgeon until the fall of Vietnam in April 197 5.

Between August 1975 and June 1979, respondent completed an internship and residency in internal medicine at the University of Oklahoma Health Sciences Center. Thereafter, from July 1979 to July 1981, respondent completed a fellowship in gastroenterology at the University of Oklahoma Health Sciences Center.

In 1981, respondent moved to California, got married and opened a private practice in Apple Valley. He holds staff privileges at St. Mary's Regional Medical Center and at Victor Valley Community Hospital.

Respondent has been board certified in internal medicine since 1980 and in gastroenterology since 1983.

Standard of Care

4. To ascertain the facts, the standard of care and whether respondent's care and treatment of patient F .R. involved a deviation from the standard of care and, if so, the extent of the deviation, testimonial evidence from the parties' expert witnesses and documentary evidence have been considered. James W. Ostroff, M.D. (Dr. Ostroff) testified as

2

complainant's expert witness. Rudolph A. Bedford, M.D. (Dr. Bedford) testified as respondent's expert witness.

5. Dr. Ostroff graduated in 1977 from Cornell Medical College. Between 1977 and 1980, Dr. Ostroff completed his internship and residency at New York Hospital Cornell Medical College, where he served as assistant chief medical resident. Between 1980 and 1982, he completed a fellowship in clinical gastroenterology at the University of California­San Francisco (UCSF).

He is licensed to practice medicine in the states of California and New York.

Since 1980 Dr. Ostroffhas been board certified in internal medicine and since 1983 in the subspecialty of gastroenterology.

He has academic and administrative appointments at UCSL2 He has been a professor of clinical medicine for 20 years, a professor of pediatrics and a professor of radiology for 13 years. Also, he described his administrative appointments. Since 1991 Dr. Ostroffhas been the chief of endoscopy and director of the consult service at U CSF. In January 2016, after 25 years, he stepped aside as chairman of the gastroenterology quality assurance committee; he remains a member of this committee as well as the gastroenterology executive committee.

Since 1993, Dr. Ostroff has been the chief of endoscopy and director of the clinical consult service at UCSF Mount Zion Hospital. Since 2001 it has been an outpatient surgery center.

Since 1982, he has maintained a clinical practice, specializing in gastroenterology. He provides care and treatment for patients in his office and perfonns endoscopic procedures. Approximately half the procedures are ERCPs3 and half are a combination of endoscopy and colonoscopy. For 23 years, he has perfonned an average of 1000 ERCPs per year. For 25 years, he has perfonned hundreds of procedures placing stints in the common bile duct and removing stints from the common bile duct per year.

Dr. Ostroff runs a fellowship program in ERCP, one ofthe largest in North America.

Throughout his career, Dr. Ostroff has been involved in multiple research protocols and has given multiple lectures. During the hearing, he highlighted two: (1) in January 2004, he gave a lecture entitled, "ERCP Tips and Tricks", part of the Stanford University Medical

2 Dr. Ostroff described his academic positions and explained the process of becoming a professor. It is a sequence, from instmctor to assistant professor to associate professor to fullprofessor.-

3 Endoscopic retrograde cholangiopancreatography.

3

School's course curriculum, and (2) in 2012 he gave a demonstration, performing ERCPs in cases assigned to him in front of gastroenterologists in the northeast. 4

Dr. Ostroff holds privileges at Benioff Children's Hospital and privileges to perform the limited procedures allowed at UCSF - Mt. Zion.

Dr. Ostroff is a member of the American Gastrointestinal Association and was made a fellow in 2006. 5

6. Dr. Ostroff has served as an expert witness previously.

He has served as an expert witness on behalf of the board since 2012 and has provided opinions in six or seven cases; in two of the cases, he determined that there were no departures from the standard of care. Also, for the last 34 years, he has provided forensic evaluation of cases two to three times a year. Most of the cases were resolved without the need for him to testify.

7. To render his opinions in this case, Dr. Ostroff reviewed the information provided by the board's investigator. This included the draft investigation report and the attachments for this case. 6 The attachments included:

• 801 report of settlement

• Summary of care of patient F.R. and curriculum vitae of respondent

• Depositions ofrespondent, S.R., N.H., C.R., F.R., M.R. and A.R.7

4 To perform the ERCPs, he was issued a temporary license to practice medicine in the State of Connecticut and temporary credentials at New Haven Medical College.

5 To become a fellow, one files an application with the organization. There are criteria with respect to research and recommendations.

6 In addition, a few days before the hearing, Dr. Ostroff reviewed the autopsy report. His review ofthis document did not change any of Dr. Ostroff's opinion.

Respondent objected because the autopsy report was provided beyond the deadline set in the Pre-hearing Conference Order. Considering the arguments of counsel, the administrative law judge overruled respondent's objection.

7 Family members of patient F.R.

4

• Returned letter and authmizations sent to patient F .R. via certified mail

• Signed authorizations for the release of medical information

• Certified medical records of patient F .R. from respondent

• Certificate of death for patient F .R.

• Certified medical records for patient F .R. from Victor Valley Community Hospital

• Certified medical records for patient F.R. from St. Mary Medical Center

• Letter of representation from Campbell Finlay

• Article provided by respondent regarding cholangitis

• Letter from respondent, dated October 20, 2014

• CD containing 11 depositions from Thon, Vanni, Callahan & Powell

• CD containing x-ray films for F.R. from Victor Valley Community Hospital

• CD containing x-rays, MRI, ultrasound and aCT scan for F.R. from St. Mary Medical Center

• Audio recording of respondent's October 7, 2014, interview at the board's San Bernardino district office

8. Dr. Bedford obtained his medical degree in 1987 from Case Western Reserve University in Cleveland, Ohio. Between 1987 and 1990, he completed his internship and residency in internal medicine at Cornell New York Hospital. After his residency training, from 1990 to 1992, Dr. Bedford completed a gastroenterology fellowship at Cleveland Clinic Foundation. From 1992 to 1993, he completed an advanced fellowship in gastroenterology; during this fellowship, he subspecialized in ERCPs and endoscopic ultrasounds at St. Luke's Hospital in Wisconsin. After he completed his training in 1993, Dr. Bedford moved to California.

Since 1994 Dr. Bedford has been licensed to practice medicine in California.

5

Initially, from 1994 to 1995, he was in practice at California Pacific Medical Center in San Francisco. He is a transplant hepatologist and therapeutic endoscopist utilizing ERCPs with liver transplant patients. After that Dr. Bedford was recruited to the University of California- Los Angeles (UCLA) where he became the director of the pancreatic-biliary services program director; he is an associate clinical professor at UCLA, where he teaches fellows. Thereafter, for personal reasons, he began practicing in Santa Monica, affiliated with St. Joseph Hospital, where he is the director of the gastroenterology laboratory. When called upon to do so, he performs specialized procedures at UCLA.

Since 2014 Dr. Bedford has been president of Southern California Gastroenterology Society. From 2015 to 2016 he has been the course director for the gastroenterology board rev1ew course.

He holds hospital privileges at: (1) UCLA in Westwood, (2) UCLA in Santa Monica, (3) St. John's Hospital in Santa Monica, ( 4) Marina del Rey Hospital in Marina del Rey, and (5) Southern California Hospital in Culver City.

Dr. Bedford is board certified in internal medicine and gastroenterology.

During his career, Dr. Bedford has performed 8,000 ERCP procedures. He has placed over 6,000 stents and has removed closer to 4,000 stents. He has treated patients with cholangitis and has treated patients who have developed sepsis associated with cholangitis.

9. Dr. Bedford described the infonnation upon which he relied in rendering his opmwns. In addition to the information reviewed by Dr. Ostroff, Dr. Bedford reviewed the following documents;

• Written memorandum from CCU Medical Consultant Stephen Moff, M.D.

• Expert letter to Dr. Ostroff

• Written opinion, dated January 15, 2015, from Dr. Ostroff

• Transcript of respondent's October 7, 2014, interview

10. Doctors Ostroff and Bedford were impressive expert witnesses and well-qualified to render their opinions. Each had impressive credentials that included the appropriate education, training and experience. Each was familiar with the relevant procedures and issues in this case. Each relied on reasonable information in rendering his opinions. Each understood the standard of care, deviation from the standard of care, simple departure and extreme departure from the standard of care. There is no evidence that either expert witness was particularly biased.

6

Some opinions were consistent while others were contradictor. The instance of inconsistency was evaluated separately.

Facts Underlying the Charges

11. On June 22, 2010, respondent provided a consultation for patient F.R. after an abdominal ultrasound showed that the patient had cholelithiasis 8 and choledocholithiasis9

•

The patient's elevated liver enzymes and dilated bile duct indicated a moderate to high probability of the possibility of stones and warranted a preoperative ERCP and sphincterotomy. The purpose of the consultation was to remove a suspected common bile duct stone prior to a cholecystectomy. 10

12. On June 28, 2010, respondent performed an ERCP with sphincterotomy and balloon sweeping of the common bile duct. He was unable to detennine ifhe had successfully removed the suspected common bile duct stone from patient F.R. 's dilated bile duct and placed an 8.5-French 5 em stent into the common bile duct.

13. An ERCP is an endoscopic procedure to examine the patient's upper gastrointestinal tract. The patient is sedated, brought into a room that has an x-ray fluoroscopy machine and laid on his stomach or the left lateral portion of his stomach. The duodenoscope, a thin flexible instmment with a camera at the end, has a side-viewing port. It has channels through which equipment can be passed. The scope is inserted into the mouth, passed into the esophagus, stomach and duodenum to the ampulla of vater.

During the procedure, a sphincterotome is passed into the bile duct; it is used to cannulate the ampulla to make the hole larger. The sphincter of oddi, a muscle that opens and closes to regulate bile flowing from the liver, is cut so that this muscle is completely open so that everything drains through the bile duct with nothing holding it back.

The next step is an attempt to remove the stone from the bile duct. There are various methods to remove the stone. The most common is to sweep the bile duct with a balloon that is the size of the diameter of the bile duct; to put the balloon into the bile duct, the deflated balloon is put on top of the guide wire, put at the bifurcation (known as the common bile duct); the balloon is inflated and slowly swept to the opening; the opening is large enough to accommodate anything up to one centimeter or a little larger; and usually the stone will pop out. Sometimes the physician does not see the stone pop out because of the way the scope is angled. If he is not sure ifhe got the stone out, the next step is for the physician to put in a

8 Cholelithiasis is the medical tenn for gallstone disease.

9 Choledocholithiasis is the presence of at least one gallstone in the common bile

10 A cholecystectomy is the surgical removal of the gallbladder.

7

stent (a plastic tube) to make sure the bile duct is wide open. If there is a stone in the duct, the placing of the stent allows bile to drain, and the stone to pass.

As the procedure is performed, the physician is not able to see into the bile duct with the camera that is on the scope; instead, he is looking at the ampulla, using the x-ray machine as a fluoroscope as he injects the dye; he is looking at the contrast dye and the outlines made by the contrast; he is seeing the outline of the bile ducts and may see the outline of a stone.

Respondent followed the procedure described in the foregoing paragraphs in his care and treatment of patient F.R. on June 28, 2010.

14. Stents can be expected to occlude after six months and form a nidus for the fonnation of other stones, mud and debris around the stent.

15. In patient F.R. 's medical chart, respondent noted: "will pull the stent out in 2 months."

16. Respondent next saw patient F.R. on November 24, 2010 in his office. A second ERCP was scheduled for February 10, 2011 to remove the stent.

17. Patient F.R.'s medical chart contains no record of instructions given to patient F.R. or his family member(s) regarding the removal of the stent.

18. Patient F.R.'s medical chart contains no explanation for the passage oftime between the placement of the stent on June 28, 2010 and the removal of the stent on February 10,2011.

19. On February 10, 2011, at or about 8:30a.m., respondent performed a second ERCP on patient F.R. and removed the stent (second ERCP).

20. During the second ERCP, respondent performed a balloon sweep. Patient F.R.'s medical chart contains no clear documentation that all ducts were swept.

21. No antibiotics were prescribed or administered to patient F .R. immediately before, during or after the second ERCP.

22. After the second ERCP, patient F.R. was discharged from the endoscopy facility. Several hours later, patient F.R. 's wife called respondent's office to report that patient F.R. was experiencing chills, pain in his back and stomach. Respondent and/or his staff advised that patient F.R. should be brought to respondent's office right away.

At or about 6:00p.m., after efforts to convince patient F.R. 's wife to bring the patient to his office had been unsuccessful, respondent noted in the patient chart that he advised patient F.R.'s wife to bring the patient to the office the following morning, if pain persisted.

8

Thereafter, respondent prescribed Amoxicillin 500 mg to be taken three times a day for patient F.R.

23. The following morning, patient F.R.'s condition had not improved. Further conversations took place between respondent and/or his office staff and patient F.R. 's wife. Patient F.R. arrived at Victor Valley Community Hospital at or about noon on February 11, 2011.

24. On October 7, 2014, at the subject interview, respondent stated that there had been several telephone calls between his office and patient F .R. 's wife on February 10, 2011, and/or February 11, 2011. Further, he stated that he and/or his staffhad impressed upon patient F .R. 's wife the severity of patient F .R. 's condition and that it was matter of life and death that patient F.R. receive urgent medical attention, but that patient F.R.'s wife apparently failed to understand and/or take respondent's comments seriously.

However, respondent did not document in the chart for patient F.R.: (1) the frequency of the conversations, (2) the information given to patient F.R.'s wife, or (3) his wife's failure or refusal to understand the information.

25. On February 11, 2011, at or about 1:30 p.m., patient F.R. was admitted to Victor Valley Community Hospital and was found to be critically ill, suffering from severe seps1s.

26. Respondent obtained various consults for patient F.R., including a gastrointestinal consultant, Dr. B., who perfonned an ERCP on patient F.R. on February 12, 2011 (third ERCP). Dr. B. found "clear evidence of a biliary obstruction as evidenced by dark pigmented bile and extensive amounts of bloody liquid and sand-like material concerning for hemobilia11

." Dr. B. diagnosed "biliary obstruction resulting in ascending cholangitis and sepsis" and placed a stent in the common bile duct.

27. On February 12, 2011, patient F.R. passed away.

28. On February 16, 2011, respondent completed a two-page note in patient F.R. 's medical chart, entitled "Death Summary" and marked "Final Report," in which he made the following comments:

Endoscopic retrograde cholangiopancreatography was perfonned 2 or 3 months ago ... for common bile stone retrieval with stenting of the common bile duct.

His condition continued to deteriorate. During the night, his oxvQen saturation be2:an to deteriorate. sug:g:esting: acute

.;u u _, uu '-'

l'espiratory distress syndrome. He was intubated-and put on-the

11 Hemobilia is bleeding fi·om the biliary tree.

9

machine. The blood pressure was kept on Dopamine and Neo­Synephrine. But, in spite of this, on 2112/2011 after all the resources have [sic] been pulled out, I have a hunch that he would not make it because of multi organ [sic] failure. Therefore, I called the family and explained the grave situation as best that I could.

The patient finally expired on 2/12/2011.

Respondent listed the final diagnosis as "septic shock, death."

29. Respondent's "Death Summary" for patient F.R. contained no mention of the third ERCP, performed on February 12, 2011 or Dr. B's diagnosis of biliary obstruction.

Allegations of Gross Negligence

30. Complainant alleged that respondent committed gross negligence in his care and treatment of patient F.R. because respondent failed to perform, and/or document that he performed a complete ERCP on February 10, 2011.

Dr. Ostroff established that, in a case, where a stone was missed on a prior ERCP and a stent remained in the common bile duct for seven and one-half months, the standard of care required that respondent perform a complete ERCP, fill all ducts, meticulously sweep all ducts and ensure that there was ample documentation of the procedure and the findings. Dr. Bedford did not dispute the foregoing.

In Dr: Ostroff s opinion, respondent did not perfonn or document that he performed a complete ERCP on February 10, 2011. In rendering his opinion, Dr. Ostroff relied on respondent's operative report and the radiologic evidence. In his operative note, respondent described the procedure perfonned as ERCP "with removal of the stent and visualization of the common bile duct to check for retained stone."

Under "Procedure in Detail", respondent's operative report states:

The scope was inserted into the esophagus down to the stomach. The pylorus was visualized. The tip of the scope was passed into the pylorus, down to the second portion of the duodenum. We see the stent coming out. We grasped the stent with the snare and removed the scope. Then, we used the sphincterotome and we succeed to visualize the common bile duct. There was some bubble, but no stone.

At any rate, we removed the sphincterotome and replaced it with the balloon with a guidewire and we made a sweep through the

10

common bile duct stone. There was no stone coming out. The caliber of the common bile duct is normal size.

The guidewire, the balloon, and the scope was then retrieved. The patient tolerated the procedure well.

Under "Impression", respondent stated:

• Status post cholecystectomy status post ERCP with common bile duct stone removal.

• No retained stone left.

• Removal of the stent.

Based on respondent's operative report, Dr. Ostroff concluded that respondent made a sweep of the common bile duct; no stone came out; respondent determined the bile duct was normal caliber; thereafter he retrieved the balloon. In his report, respondent made no mention of sweeping: (1) any other part of the biliary tree, (2) the common hepatic duct; (3) the left or right intrahepatic biliary' tree. Based on the radiologic C\'idence from the procedure reviewed by Dr. Ostroff, he visualized that respondent swept the common bile duct once but did not visualize the extensive sweeping described in this paragraph.

Dr. Ostroff's opinion is supported by the fact that, within a few hours of the procedure performed by respondent, patient F .R.' s wife called respondent's office complaining of symptoms (chills and pain in stomach and back) consistent with sepsis, the subsequent deterioration of the patient's condition and Dr. B's ultimate finding, after his ERCP, that patient F .R. had an obstruction.

Further, during the board interview in 2014, respondent stated that he did not perform a complete cholangiogram during the second ERCP; however, during the hearing, he testified that he did so, reviewed the x-rays from the procedure he perfonned on February 10, 2011 and described his actions on the x-rays. When asked about the discrepancy between his statements during the board interview and his testimony in this hearing, respondent explained that he did not have access to the fluoroscopic x-rays.

During the heming, respondent and Dr. Bedford reviewed the fluoroscopic images from the procedure that respondent performed on February 10, 201 1. Based on Dr. Bedford and respondent's testimony, it was established that respondent performed the procedure in accordance with Dr. Ostroff's description. Dr. Ostroff had no recollection that he reviewed more than one fluoroscopic x-ray of the procedure. Therefore, it was not established Dr. Ostroff re\'ievved all tl1e images re\,rie\ved by respondent and Dr. Bedford.

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31. Accordingly, the evidence established that respondent performed a complete ERCP on February 10, 2011.

32. The evidence did not establish that respondent documented that he performed a complete ERCP on February 10, 2011. Accordingly, Respondent committed gross negligence in his care and treatment of patient F .R. when he failed to document that he performed a complete ERCP on February 10, 2011.

Allegations of Repeated Negligent Acts

33. Complainant alleged that, in his care and treatment of patient F.R., respondent engaged in repeated negligent acts. Many of the allegations were based on respondent's failure to adequately document patient F.R. 's medical record. Dr. Ostroff opined repeatedly that respondent did not engage in certain conduct because it was not documented. Dr. Bedford opined that a physician cannot document everything as he practices medicine and that respondent's documentation was adequate. Both opinions are reasonable and have been considered in making the following findings.

34. Complainant alleged that respondent failed to timely remove the stent placed in patient F.R. during the first ERCP, and he failed to provide patient F.R. with a clear understanding about the importance of timely removal of the stent. Except for the respondent's medical record for the patient and respondent's testimony, there is no evidence regarding this issue.

Respondent placed the stent in June 2010. The patient returned almost five months later, and respondent scheduled and removed the stent almost eight months after it was placed. The experts agreed that the stent should be removed in four months; sometimes, the stent remains longer through no fault of the physician.

In this case, after placing the stent, based on the documentation in the patient's record and respondent's testimony, it was established that respondent had planned to remove the stent in two to three months. There is nothing in the medical record for patient F .R. that respondent explained to him or his family the importance of having the stent removed within four months of the potential consequence of failure to do so. There is nothing in the medical record for patient F.R. of respondent's efforts or the problems scheduling the second ERCP.

Respondent testified that he orally instructed the patient to return to his office in two or three months and gave him a business card with the telephone number. He did not provide the patient with instructions or explain [orally or in writing] the significance of timely removal of the stent.

Respondent testified regarding the difficulty scheduling the second ERCP and removal of the stent. He did not explain whether he made the effort, whether his staff that did so or the time frames within which he did so.

12

Based on the foregoing facts, respondent failed to provide patient F .R. with information about the importance of the timely removal of the temporary stent; respondent failed to ensure timely removal of the temporary stent.

35. Respondent failed to ensure that patient F.R. and/or his family member(s) had information and therefore a proper understanding of: the risks associated with performance of the second ERCP, the possible warning signs and importance of symptoms to watch for in patient F.R. after the procedure; and if those signs and symptoms were present, the necessary actions to take and the urgency with which they should be taken.

There is no evidence in the record that respondent provided the foregoing infonnation. Therefore, he made no et1ort to ensure that the patient or family members had a clear understanding of the foregoing.

36. Respondent failed to maintain adequate and accurate records of his care and treatment of patient F .R.

3 7. In summary, respondent committed repeated negligent acts in his care and treatment of patient F .R. which included, but was not limited to:

• He failed to ensure timely removal of the temporary stent which was placed in patient F .R. during the first ERCP, which included respondent's failure to ensure that patient F.R. had infonnation/clear understanding of the importance of the timely removal of the temporary stent;

• He failed to ensure that patient F.R. and/or his responsible family member( s) had proper information/understanding of the risks associated with performing the second ERCP, the possible warning signs and important symptoms to watch for in patient F.R. after the procedure, and if those signs and symptoms were present, the necessary actions to take and the urgency with which they should be taken;

• He failed to perform, and/or document that he had performed a complete ER CP at the second ERCP on patient F .R. on February 10, 2011; and

• He failed to maintain adequate and accurate records of his care and treatment of patient F.R.

Allegations of Dishonesty or Corruption

38. Complainant alleged that respondent committed an act or acts of dishonesty or ~--.,-•:-- t..~~"--1 "- t..:~ .-1:~~1"~··-" -- ""'"t.."- '"HI '"lr\1 "1 ~~r1 ;~.c"~~~•;"~ ~"a;I~t..l" •o h;~ -~ \.-Vll upuvu ua;:,c:;u Vll 111;:, u1;:,\.-1u;:,un;, vu V\.-Luu.;,.1 .J u, "-U 1 .J auu HlliJuHaLlUll a v 1 au11:. L 1 1111 u11

February 12, 2011. ·

13

39. On October 30, 2013, respondent provided the board with his explanation of his care and treatment of patient F .R. In the explanation, respondent stated, in part:

I evaluated the patient in the late afternoon on February 12, 2011 and noted his condition was clearly deteriorating. I contacted another gastroenterologist who was going to be on call for me that evening. I contact [sic] a gastroenterologist so an ERCP could be performed on the remote chance the patient had a biliary obstruction. No obstruction of the common bile duct "vas noted. No injury to the common bile duct was seen, thereby ruling out injury during the procedure I performed to remove the stent the day before. A common bile duct stent was placed for biliary decompression. (Emphasis added.)

At the time of providing this explanation to the board, respondent was familiar with Dr. B.'s operative report, prepared on or about February 12, 2011, and with Dr. B.'s findings after performing the ERCP on patient F.R. Dr. B.'s operative report provided, in part::

FINDINGS

1. Biliary obstruction resulting in ascending cholangitis and seps1s.

2. Clear evidence of biliary obstruction ...

Respondent testified that when respondent made the statements in his October 20, 2013letter to the board, he did not disclose Dr. B.'s findings because he did not agree with Dr. B.'s findings. However, this did not justify his failure to disclose Dr. B.'s findings to the board.

40. When respondent made the statements in his October 20, 2013 letter to the board and did not disclose Dr. B.'s findings, respondent committed an act or acts of dishonesty. Respondent's act of dishonesty is substantially related to the duties of a physician and surgeon.

Allegations ofF ailure to Maintain Adequate and Accurate Records

41. In his care and treatment of patient F .R., respondent failed to maintain adequate and accurate records.

Evaluation

42. Respondent has been licensed by the board more than 25 years. There is no evidence of prior discipline by the board or any hospital. It appears that he has a busy

14

medical practice. There is no evidence that he has an appreciation of his deficiencies in documentation. He offered no credible explanation for failing to disclose Dr. B.'s findings.

LEGAL CONCLUSIONS

The Purpose of Disciplinary Proceedings

1. The purpose of an administrative disciplinary proceeding is not to punish but to protect the public from dishonest, immoral, disreputable or incompetent practitioners. (Ettinger v. Board ofA1edical Quality Assurance (1982) 135 Cal.App.3d 853, 856.)

Burden and Standard of Proof

2. 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, or evidence so clear as to leave no substantial doubt; sufficiently strong evidence to command the unhesitating assent of every reasonable mind. (Katie V v. Superior Court (2005) 130 Cal.App.4th 586, 594.)

Statutory Authority

3. Section 222 7 of the Code states that a licensee who is found guilty under the Medical Practice Act may have his license revoked, suspended for a period not to exceed one year, placed on probation and required to pay the costs of probation monitoring, be publicly reprimanded or have such other action taken in relation to discipline as the medical board deems proper.

4. Section 2234 of the Code states, in part:

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

(b) Gross negligence.

(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinctdeparture from the applicable standard of care shall constitute repeated negligent acts.

15

[~---~

(1) An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act.

(2) When the standard of care requires a change in the diagnosis, act, or omission that constitutes the negligent act described in paragraph (1 ), including, but not limited to, a reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs from the applicabl~ standard of care, each departure constitutes a separate and distinct breach of the standard of care.

(e) The commission of any act involving dishonesty or corruption that is substantially related to the qualifications, or duties of a physician and surgeon.

5. Code section 2266 states:

Case Lmv

The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.

6. When a physician assumes care for a patient, he has a duty to provide care that is within accepted standards. Moreover, "[t]here is no profession where the patient passes so completely within the power and control of the operator as does the medical patient." (Fuller v. Board of Medical Examiners (1936) 14 Cal.App.2d 734, 741-742.) A patient, being unlearned in the medical sciences, must depend on the inherent trust underlying the patient­physician relationship. Indeed, as the California Supreme Court has stated: " ... the patient is fully entitled to rely upon the physician's skill and judgment while under his care, and has little choice but to do so." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102.)

7. "[W]e must also be mindful of the fact that, when it comes to treating their patients, physicians occupy a position of implicit trust. A medical professional who holds him or herself out to the public as one available to administer to the medical needs of patients through examination and treatment is burdened with the duty to act for medical purposes in dealing with patients seeking medical care. There is an inherent trust and confidence which a patient seeking medical care places in the professional and upon which a patient relies in allowing the professional access to the most intimate parts of the body." (People v. Pham (1976) 180 Cal.App.4th 919, 926.)

16

8. It is well-settled that "a physician or surgeon [must] have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment ofhis patient ... " (Huffman. Lindquist (1951) 37 Ca1.2d 465,473, insert added, see also Flmt·ers v. Torrance Memorial Hospital Medical Center, supra, 8 Ca1.4th at 998.) Whether he has done so in a particular case is generally a question for experts and can be established only by their testimony unless the matter in issue is within the common knowledge of laymen. [citation]" (Trindle v. Wheeler (1943) 23 Ca1.2d 330, 333.)

9. A physician's conduct as a physician can be the subject of discipline if he has engaged in acts that are defined as "unprofessional conduct." In the administrative discipline context, unprofessional conduct refers to acts or omissions that satisfy the definition of gross negligence, repeated negligent acts and/or dishonesty or corruption.

10. Pursuant to Section 2234, subdivision (b), the commission of gross negligence in the practice of medicine constitutes unprofessional conduct. Gross negligence is "an extreme departure from the ordinary standard of care." (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 198.) "[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." (Flmt·ers v_ Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997, citation omitted.).

11. A physician is not necessarily negligent because he errs in judgment or because his efforts prove unsuccessful. He is negligent only if his error in judgment or lack of success is due to a failure to perfonn any of the duties required of reputable members of his profession practicing in the same or similar locality under similar circumstances. (Norden v. Hartman (1955) 134 Cal.App.2d 333, 337; Black v. Caruso (1960) 187 Cal.App.2d 195.)

Respondent had a duty to perfonn professional medical services for patients with the degree of learning and skill ordinarily possessed by a reputable physician practicing in the same or similar locality and under similar circumstances. It was his duty to use the care and skill ordinarily used in like cases by reputable members of his profession practicing in the same or similar locality under similar circumstances and to use reasonable diligence and his best judgment in the exercise of his professional skill and in the application of his learning, in an effort to accomplish the purpose for which he was consulted. A failure to fulfill any such duty is negligence. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279; H4fman v. Lundquist (1951) 37 Ca1.2d 465; 473 BAJI7th Ed. No. 6.00, 6.37.)

12. Pursuant to Section 2234, subdivision (c), the commission of repeated negligent acts in the practice of medicine constitutes unprofessional conduct. Repeated negligent acts are two or more grossly or ordinarily negligent acts. Such acts need not be "similar" or part of a "pattern" in order to constitute repeated negligent acts. (Zabe-tian v. lv1edical Board ofCal((ornia (2000) 80 Cal.App.4th 462, 468.) "Under existing law, the standard of care applicable to a medical professional (i.e., the custom and practice in the

17

relevant medical community) must be established by expert testimony. [citation]" (NNV v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1385). It "is a matter peculiarly within the knowledge of experts; ... " (Sinz v. Owens (1949) 33 Cal.2d 749, 753.)

Violations

13. Cause exists to discipline respondent's certificate for unprofessional conduct under Code sections 2227 and 2234, in that he committed gross negligence in his care and treatment of patient F .R.

14. Cause exists to discipline respondent's certificate for unprofessional conduct under Code sections 2227 and 2234, in that he committed repeated negligent acts in his care and treatment of patient F .R.

15. Cause exists to discipline respondent's certificate for unprofessional conduct under Code sections 2227 and 2234, in that he committed dishonesty or corruption in his care and treatment of patient F .R.

16. Cause exists to discipline respondent's certificate in that he failed to maintain adequate and accurate records relating to his care and treatment of patient F .R.

17. Pursuant to Code section 2234, cause exists to discipline respondent's certificate in that he engaged in conduct that breached the rules of ethical conduct of the medical profession and engaged in conduct that is unbecoming a member in good standing of the medical profession and that demonstrates an unfitness to practice medicine. (Windham v. Board of f'vfedical Quality Assurance (1980) 104 Cal.App.3d 461, 470.)

Discipline

18. In determining the appropriate discipline, consideration has been given to the legislative intent that the purpose of the statutory scheme to license and discipline physicians and surgeons is to protect the public interest, rather than punish a wrongdoer. (Fahmy v. Medical Board ofCalifornia (1995) 38 Cal.App.4th 810.)

19. The primary purpose of disciplinary action is to protect the public. (Bus. & Prof. Code, § 2229, subd. (a).) The Medical Practice Act emphasizes that the board should "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." (Bus. & Prof. Code, § 2229, subd. (c).) However, "[ w ]here rehabilitation and protection are inconsistent, protection shall be paramount." (Bus. & Prof. Code, § 2229, subd. (c).)

18

20. Having considered the facts, the violations, respondent's lack of appreciation of his deficiencies in documentation, and the fact that respondent offered no reasonable explanation for his failure to disclose information regarding his care and treatment of patient F.R. to the board, the following order is made.

ORDER

Physician's and Surgeon's Certificate Number A 36682 issued to Khoi Ngoc Nguyen is revoked. However, the order of revocation is stayed, and Khoi Ngoc Nguyen is placed on probation for 35 months upon the following terms and conditions.

1. Professionalism Program (Ethics Course)

\Vi thin 60 calendar days of the effective date of this Decision, respondent shall enroll in a professionalism program, that meets the requirements of Title 16, California Code of Regulations, section 1358. Respondent shall patiicipate in and successfully complete that program. Respondent shall provide any information and documents that the program may deem pertinent. Respondent shall successfully complete the classroom component of the program not later than six months after respondent's initial enrollment, and the longitudinal component of the program not later than the time specified by the program, but no later than one year after attending the classroom component. The professionalism program shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of his license.

A professionalism program taken after the acts that gave rise to the charges in the First Amended Accusation but prior to the effective date of the Decision may, in the sole discretion of the board or its designee, be accepted towards fulfillment of this condition if the program would have been approved by the board or its designee had the program been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the board or its designee not later than 15 calendar days after successfully completing the program or not later than 15 calendar days after the effective date of this Decision, whichever is later.

2. Medical Record Keeping Course

Within 60 calendar days ofthe etTective date ofthis Decision, respondent shall enroll in a course in medical record keeping equivalent to the Medical Record Keeping Course offered by the Physician Assessment and Clinical Education Program, University of California, San Diego School of Medicine (Program), approved in advance by the board or its designee, Respondent shall provide the Program with any information and documents that the Fro gram may deem pertinent. Respondent shall participate in and successfully complete the classroom component of the course not later than six lllOnths after respondent's initial enrollment. Respondent shall successfully complete any other component of the

19

course within one year of enrollment. The medical recordkeeping course shall be at respondent's expense and shall be in addition to the CME requirements for renewal ofhis license.

A medical record keeping course taken after the acts that gave rise to the charges in the First Amended Accusation, but prior to the effective date of the Decision may, in the sole discretion of the board or its designee, be accepted towards the fulfillment of this condition if the course would have been approved by the board or its designee had the course been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the board or its designee not later than 15 calendar days after successfully completing the course, or not later than 15 calendar days after the effective date of the Decision, whichever is later.

3. Notification

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

4. Supervision of Physician Assistants

During probation, respondent is prohibited from supervising physician assistants.

5. Obey All Laws

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

6. Quarterly Declarations

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

20

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

7. General Probation Requirements

A. Compliance with Probation Unit- Respondent shall comply with the board's probation unit and all terms and conditions of this Decision.

B. Address Changes- At all times, respondent shall keep the board informed of respondent's business and residence addresses, email address (if available), and telephone number(s). 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 Code section 2021, subdivision (b).

C. Places 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,

D. License Renewal- Respondent shall maintain a current and renewed California Physician's and Surgeon's Certificate.

E. Travel or Residence Outside California - Respondent shall immediately infonn the board or its designee, in writing, of travel to any areas outside the jurisdiction of California that lasts, or is contemplated to last, more than 30 calendar days.

In the event respondent leaves 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.

8. Intervie\v with the Board or Designee

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

9. 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, as defined in Code sections 2051 and 2052, is any period of time that respondent is not practicing medicine in California, for at

21

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 that 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 non-practice. 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, prior to resuming the practice of medicine, respondent shall successfully complete a clinical training program that meets the criteria of Condition 1 of this Order.

Respondent's period of non-practice while on probation shall not exceed two years.

Periods of non-practice will not apply to the reduction of the probationary term.

Periods of non-practice 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.

10. Probation Monitoring Costs

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

11. Violation of Probation

Failure to comply with any tenn or condition of probation is a violation of probation. If respondent violates probation in any respect, after giving respondent notice and the opportunity to be heard, the board may revoke probation and carry out the disciplinary order that was stayed. If an Accusation, 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.

12. License Surrender

Fallowing the effective date of this Decision, if respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy the tenns and conditions of probation, respondent may request to sunender his license. The board reserves the right to evaluate respondent's request and to exercise its discretion in determining whether or not to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon formal acceptance of the surrender, within 15 calendar days,

22

respondent shall deliver his wallet and wall certificate to the board or its designee, and he 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.

13. Completion of Probation

Respondent shall comply with all financial obligations not later than 120 calendar days prior to the completion of probation. Upon successful completion of probation, respondent's physician's and surgeon's certificate shall be fully restored.

DATED: December 30,2016

~DocuSigned by:

~~J.J~<J+-241611FC5025411

VALLERA J. JOHNSON Administrative Law Judge Office of Administrative Hearings

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·FILED · ···STATE OF CALIFORNIA .. ·

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1

2 3.

JURISDICTION '

This First Amended Accusation, which supersedes the Accusation filed on August 20,

3 2015, in the above-entitled matter, is brought before the Board under the authority of the

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

5 otherwise indicated.

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4. Section 2227 of the Code states:

"(a) A licensee whose matter has been heard by an administrative law judge of the

Medical Quality Hearing Panel as designated in Section 11371 of the Government Code, or

whose default has been entered, and who is found guilty, orwho has entered into a

stipulation for disciplinary action with the board, 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 ri!lht to oractice susoended for a period not to exceed one v.J ear " ... ....... i .1 ...

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.

"(b) Any matter heard pursuant to subdivision (a), except for warning ]etters, medical

review or advisory conferences, professional competency examinaLions, continuing

education activities, and cost reimbursement associated therewith that are agreed to with the

board and successfully completed by the licensee, or other matters made confidential or

privileged by existinglaw, is deemed public, and shall be made available to the public by

the board pursuant to Section 803.1."

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First Amended Accusation (09-2013-235858)

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5. Section 2234 of the Code, states:

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

conduct. In alddition to other provisions of this article, unprofessional conduct includes, but

is not limited to, the following:

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

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

"(b) Gross negligence.

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

acts or omissions. An initial negligent act or omission followed by a separate and. distinct

departure from the applicable standard of care shall constitute repeated negligent acts.

"(1) An initial negligent diagnosis followed by an act or omission medically

appropriate for that negligent diagnosis of the patient shall constitute .a single negligent·

act.

"(2) When the standard of care requires a change in the diagnosis, act, or omission l

that constitutes the negligent act described in paragraph (1), including, but not limited to, a

reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs

from the applicable standard of care, each departure constitutes a separate and distinct

breach of the standard .of care.

"

"(e) The commission of any act involving dishonesty or corruption that is

substantially related to the qualifications, functions, or duties of a physician: and surge~n.

'' "

6. Section 2266 of the Code states:

24 "The failure of a physician and surgeon to maintain adequate and accurate records

25 relating to the provision of services to their patients constitutes unprofessional conduct.

26 ..., I. Unprofessior1al concluct under Business and Professions Code ~ection_2234 is conduct

27 which breaches the rules or ethical conduct of the mepical profession, or conduct which is

28 unbecoming to a member in good standing of the medical profession, and which demonstrated an

3

First Amended Accusation (09-2013-235858)

1 unfitness to practice medicine. (Shea v. Board of Medical Examiners (1978) 181 Cal.App.3d 564,

2 575.)

3 FIRST CAUSE FOR DISCIPLINE

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5 8.

(Gross Negligence)

Respondent is subject to disciplinary action under sections 2227 and 2234, as defined

6 by section 2234, subdivision (b), of the Code, in that he committed gross negligence in his care

7 and treatment of patient F.R., as more particularly alleged hereinafter:

8 9. During in or about June 2010, respondent saw patient F.R. after an abdominal

9 ultrasound showed the patient to have cholelithiasis1 and choledocholithiasis.2 The purpose of the

10 consultation was to remove a,suspected common bile duct stone prior to acholecystectomy.3

11 10. On or about June 28, 2010, respondent performed an endoscopic retrograde

12 cholangiopancreatography (ERCP) with sphincterotomy an,d balloon sweeping of the common

13 bile duct ("the first ERCP"). He was unable to determine whether or not hc.had successfully

14 removed the suspected common bile duct stone frompatient F.R.'s dilated bile duct, and placed

15 an 8.5-French 5 em stent into the conm10n bile duct

16 11. Stents can be expected to occlude after six months and form a nidus for the formation

17 of other stones, mud and debris. A practitioner who has placed such a stent is responsible for

18 ensuring that the patient and/or responsible family member(s) understand the reason why the stent

19 is not permanent and needs to be removed timeously.

20 12. A note dated on or about June 29, 2010, made by respondent in patient P.R.'s. medical

21 chart states "will pull the stent out in 2 months."

22 13. Patient F.R. was not seen by respondent again until on or about November 24, 2010,

23 at which visit a second ERCP was scheduled for on or about February 10, 2011, in order to

24 remove the stent.

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1 Cholelithiasis is the medical term for gallstone disease.

2 Choledocholithiasis is the presence ofat least one gallstone in the common bile duct.

3 A cholecystectomy is the surgical removal of the gallbladder.

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First Amended Accusation (09-2013-235858)

1 14. Patient F.R. 's medical chart contains no record of instructions given to patient F.R.

2 or his family member(s) regarding the removal of the stentor any explanation for the passage of

3 time between its placement in on or about June 2010, and its removal in on or about February

4 2011.

5 15. On or about the morning of February 10, 2011, respondent performed a second ERCP

6 on patient F.R. and removed the stent ("the second ERCP").

7 16. In an individual without sepsis who is stable, it is imperative to perform a complete

8 ERCP, filling all ducts, and to ensure there is adequate radiologic documentation ofthe procedure

9 and findings. A complete cholangiogram should be performed with an accurate description of the

10 ducts.

11 17. At an interview conducted on or about October 7, 2014, on behalf of the Medical

12 Board as part of its investigation into this matter ("the subject interview"), respondent stated that ) . . .

13 he did not perform a complete cholangiogram during the second ERCP. As his reason for not

14 doing so, he stated ''(b]ecause it's- obviously there's nothing there. lt was only a dilated duct

15 and I just pull out the stent and that's the end of the story."

16 18. In cases where a stone was missed on a prior ERCP, and where a stent has remained

17 in the common bile duct for seven and a half months, a subsequent ERCP and removal of the

18 stent must be accompanied by a meticulous sweeping of the duct, which must be adequately

19 documented.

20 19. During the second ERCP, respondent performed a balloon sweep. The medical chart

21 of patient F.R. contains no clear documentation that all ducts were swept, nor is there radiologic

22 documentation that this was done.

23 20. No antibiotics were either prescribed or administered to patient F.R. immediately .

24 before, during, or after the second ERCP.

25 21. After the second ERCP, patient F.R. was discharged from the endoscopy facility.

26 Several hours later, patient F.R.)s vvife called respondent's office to repqrt tl1at patient F·.F". \vas

27 experiencing chills, nausea and vomiting, pain, weakness and fever. Respondent and/or his office

28 Ill I

5

Fir::;t Amended Accusation (09-2013-235858)

1 staff advised that patient F.R. should be brought to respondent's oftice for evaluation and for

2 possible hospitalization.

3 22. Later, on or about February 10, 2011, respondent prescribed Amoxicillin 500mg for

4 patient F.R., to be taken three times daily. Patient F.R. 's wife was advised to bring patient F.R. to

5 sec respondent the following morning if the pain persisted. ,

6 23. The following morning, when it became clear that patient F.R.'s condition had not

7 improved, further conversations took place between respondent and/or his office staff and patient

8 F.R. 's wife. After speaking to respondent and/or his office staff, patient F.R.'s wife arranged for

9 an ambulance to take patient F.R. to the emergency room at Victor Valley Community HospitaL

10 24. At the subject interview mi or about October 7, 2014, respondent stated that there had

11 been several phone calls between his office and the wife of patient F.R. on or about February 10,

12 2011, and/or February 11, 2011. He stated, further, that he and/or his staff had impressed upon

13 patient F . .R, 's wife the severity of patient F.R.'s condition and that it was a matter oflife and

14 death that patient.F.R. receive urgent medical attention, but that patient F.R. 's wife apparently.

15 failed to understand and/or take respondent's comments seriously. Neither the alleged frequency

16 of these conversations, nor the information allegedly given to patient F.R.'s wi±e, nor her alleged

17 failure or refusal to understand this information, is noted anywhere in patient F.R. 's medical chart.

18 25. PatientF.R. was admitted to Victor Valley Community Hospital at approximately

19 1:30 p.m. on or about February 11, 2011, and found to be critically ill and suffering from severe

20 sepsis.

21 26. Respondent obtained various consults for patient F.R., including a gastro-intestinal

22 consultant, Dr. B., who performed an ERCP on patient F.R. on or about February 12, 2011 ("the

23 third ERCP"). At the time of the third ERCP, Dr. B. found "clear evidence of biliary obstruction

24 as evidenced by dark pigmented bile and extensive amounts of bloody liquid sand like material

25 concerning for hemobilia."4 Dr. B. diagnosed "biliary obstruction resulting in ascending

26 cholangitis and sepsis" and placed a stcnt in the cmml)on bile duct.

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28 4 Hemobilia is bleeding from the biliary tree.

First Amended Accusation (09-2013-235858)

1 27. Patient P.R. passed away on or about February 12, 20U.

2 28. On or about February 16, 2011, respondent completed a two-page note in patient ·

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F.R.'s medical chart, entitled "Death Summary" and marked "Final Repmt," in \Vhich the

following comments are made:

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"Endoscopic retrograde cholangiopancrcatography was performed 2 or 3

months ago ... for the common bile stone retrieval with stenting of the common

bile duct."

"

"His condition continued to deteriorate. During the night, his oxygen

saturation began to deteriorate, suggesting acute respiratory distress syndrome. He

was intubated and put on the machine. The blood pressure was kept on dopamine

and Nco-Synephrine. But in spite of this, on 2/1212011 after all the resources have

been pulled out, I had a hunch that he would not make it because of multiorgan

failure. Therefore, I called the family and explained the grave situaLion as best that

I could.

"The patient finally expired on 2/12/2011."

Respondent listed the final diagnosis as "septic shock, death."

18 29. Respondent's "Death Summary" for patient F .R. contains no mention of the third

19 ERCP, perfonncd on or about February 12,2011, by Dr. B., nor of Dr. B.'s diagnosis of biliary

20 obstruction.

21 30. Respondent committed gross negligence in his care and treatment 'of patient F.R.

22 which included, but was not limited to, respondent's failure to perform, and/or document that he

23 had performed, a complete ERCP at the second ERCP on patient F.R., on or about February 10,

24 2011.

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firsl Amended Accusation (09-2013-235858)

1

2

SECOND CAUSE FOR DISCIPLINE

(Repeated Negligent Ads)

3 31. Respondent is further subject to disciplinary action under sections2227 and 2234, as

4 defined by section 2234, subdivision (c), of the Code, in that he committed repeated negligent acts ) . . .

5 in his care and treatment of patient F.R., as more particularly alleged hereinafter:

6 32. Paragraphs 9 through 30, above, are hereby realleged and incorporated by this

7 reference as if fully set forth herein.

8 33. Respondent committed repeated negligent acts in his care and treatment of patient

9 F.R. which included, but were not limited to, the following:

10 (a) Respondent failed to ensure the timely removal of the temporary stcnt which was

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placed in patient F.R. during the first ERCP, which included respondent's

failure to ensure that patient F.R. had a clear understanding of the importance of the

timely removal of the temporary stent;

14 (b) Respondent failed to ensure that patient F.R. and/or his responsible family member(s)

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had a proper understanding of: the risks .associated with performing the second

ERCP, which occurred seven and a half months after the placement oft he stent in

June 2010 and without the use of antibiotics; the possible warning signs and

important symptoms to watch for in patient F.R. after the procedure; and, if those

signs and symptoms were present, the necessary actions to take and the urgency with

w.hich they should be taken;

21 (c) Respondent failed to perform, and/or document that he had performed, a complete

22 ERCP at the second ERCP on patient F.R., on or about February 10, 2011; and

23 (d) Respondent failed to maintain adequate and accurate records of his care and treatment

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of patient F.R.

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First Amended Accusation (09-2013-235858)

1 THIRD CAUSE :FOR DISCIPLINE

2 (Dishonesty or Corruption)

3 34. Respondent is further subject to disciplinary action under sections 2227 and 2234, as

4 defined by section 2234, subdivision (e), of the Code, in that he committed an act or acts of

5 dishonesty or corruption, as more particularly alleged hereinafter:

6 35. Paragraphs 9 through 33, above, arc hereby incorporated by reference as if fully set

7 forth herein.

8 36. On or about October 30, 2013, respondent provided the Board with his explanation of

9 his care and treatment of patient F.R. In the course of this explanation, respondent stated: .

10 "I evaluated the patient in the late afternoon on February 12, 2011 and noted

11 his condition was clearly deteriorating. I contacted another gastroenterologist who

12 was going to be o:r: call for me that evening. I contacted a gastroenterologist so that

13 an ERCP could be performed on the remote chance the patient had a biliary

14 obstruction. No obstruction ot' the common bile duct was noted. No injury to

15 the common bile duct was seen, thereby ruling out injury during the procedure I

16 performed to remove the stent the day before. A common bile duct stent was

17 placed for biliary decompression." (Emphasis added.)

18 37. At the time of providing this exculpatory explanation to the Board, respondent was

19 familiar with the operative report of Dr. B., prepared on or about February 12, 2011, and with Dr.

20 B.'s findings after performing the ERCP on patient F.R., which included:

21 "FINDINGS

22 "1. Biliary obstruction resulting in ascending cholangitis and sepsis.

23 "2. Clear evidence of biliary obstruction ... "

24 .FOURTH CAUSE !<"'OR DISCIPLINE

25 (Failure to Maintain Adequate and Accurate Records)

26 38. Respondent is further subject to disciplinary action under sections 2227 and 2234, as

27 defined by section 2266, ofthe Code, in that he failed to maintain adequate and accurate records

28 in his care and treatment of patient F.R., as more particularly alleged in paragraphs 9 through 33,

9

First Amended Accusation (09-2013-235858)

1 above, which are hereby realleged and incorporated by reference as if fully set forth herein.

2 .i'"'IFrH CAUSE FOR DISCIPLINE

3 (General Unprofessional Conduct)

4 39. Respondent is further subject to disciplinary action under sections 2227 and 2234,

5 2234 of the Code, in that be has engaged in conduct which breaches the rules or ethical code of

6 the medical profession, or conduct that is unbecoming to a member in good standing of the

7 medical profession, and which demonstrates an unfitness to practice medicine, as more

8 particularly alleged in paragraphs 9 through 38, above, which are hereby reaUeged and

9 incorporated by reference as if fully set forth herein.

10 PRAYER

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

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

13 1. Revoking or suspending Physician's and Surgeon's Certificate Number A ~6682,

14 issued to respondent Kl10i N. Nguyen, M.D.;

15 2. Revoking, suspending or denying approval of respondei1t Khoi N. Nguyen, M.D.'s

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

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3. Ordering respondent Khoi N. Nguyen, M.D., if placed on probation, to pay the

Medical Board of California the costs of probation monitoring; and

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

DATED: h~s r Z (a 1 20 I~ c:ff(~·-=--=---=-·-· ~_!_-------,-----1 -v- ' ffi KIMBERLY KIRCHMEYER Executive Director Medical Board of California Department qf Consumer Affairs State of California Complainant

10 First Amended Accusation (09-2013-235858)