medical board of california department of consumer … elizabeth anne 201… · before the medical...

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XAVIER BECERRA Attorney General of California JANE ZACK SIMON Supervising Deputy Attorney General LAWRENCE MERCER Deputy Attorney General State Bar No. 111898

455 Golden Gate A venue, Suite 11000 San Francisco, CA 94102-7004 · Telephone: (415) 510-3488 Facsimile: ( 415) 703-5480

Attorneys for Complainant

. BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation and Petition to Revoke ~robation Against:

ELIZABETH ANNE SUTHERLAND, M.D. 869 Ackerman Drive Danville, Ca 94526-1849

Physician's and Surgeon's Certificate No. G 40463

Respondent.

Case No. 800-2018-043021

DEFAULT DECISION AND ORDER

[Gov. Code, §11520] ·

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FINDINGS OF FACT

1. On or about May 22, 2018, Complainant Kimberly Kirchmeyer, in her official

capacity as the Executive Director of the Medical Board of California, filed an Accusation and

Petition to Revoke Probation, MBC Case No. 800-2018-043021, against ELIZABETH ANNE

SUTHERLAND, M.D. (Respondent).

2. On or about August 3, 1979, the Medical Board of California issued Physician's and

Surgeon's Certificate Number G 40463 to Elizabeth Anne Sutherland (nee Hetherington), M.D.

The Physician's and Surgeon's Certificate expired on December 31, 2000, and was canceled on

December 31, 2005. On August 8, 2014, a probationary license was issued to Respondent with a

five year probation and terms and conditions·, including abstinen9e from controlled substances

and bodily fluid testing. Respondent tested positive for controlled substances and·a Cease Practice

Order issued on May 3, 2017. On May 26, 2017, an Accusation and Petition to Revoke Probation

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(ELIZABETH ANNE SUTHERLAND, M.D.) DEFAULT DECISION & ORDER

1, was filed and, on November 8, 2017, a Decision.became effective which placed Respondent on

2 probation for five years with terms and conditions, including abstinence from controlled

3 substances and bodily fluid testing. Respondent's Certificate is currently delinquent, with an

4 expiration date of December 31, 2017.

5 3. The present Accusation and Petition to Revoke Probation filed against Respondent is

6 based upon Respondent's diagnosis of Opioid Use Disorder and the potentialdsk to the·public of

7 her return to medical practice, as set forth in the Declaration of Charles Seaman, M.D. Said

8 Declaration is attached hereto as Exhibit A. 1 The Accusation and Petition to Revoke Probation is

9 al$O based upon Respondent's failure and refusal to comply with the terms and conditions of her

1 O Board probation, as set forth in the Declaration of Arlene Caballero. Said Declaration is attached

11 hereto as Exhibit B.

12 4. On or about May 22, 2018, Sara Pasion, an employee of the Board, served by

13 Certified Mail a copy of the Accusation and Petitio~ to Revoke Probatio!1 No. 800-2018~043021,

14 Statement to Respondent, Notice o.f Defense, Request for Discovery, and Government Code

15 sections 11507.5, 11507.6, and 11507.7 to Respondent's address ofrecord with the Board, which

16 was and is 869 Ackerman Drive, Danville, Ca 94526-1849. A copy of the Accusation and

17 · Petition to Revoke Probation, the related documents, and Declaration of Service are attached as

18 exhibit C, and are incorporated herein by reference.

19 5. Service of the Petition to Revoke Probation was effective as a matter oflaw under the

20 provisions of Government Code section 11505, subdivision (c). A signed receipt showi~g actual

21 delivery to Respondent on May 29,,2018, was received from the U.S. Postal Service. A copy of

22 the signed receipt is attached as Exhibit D.

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6. On June 8, 2018, a Courtesy Notice of Default was sent to Respondent at her address .

of record. A copy of the Courtesy Notice of Default, Declaration of Service and signed receipt

showing actual delivery are attached as Exhibit R

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1 Exhibits in support of this Decision and Order are contained in the Exhibit Packet filed herewith.

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7. Government Code section 11506 states, in pertinent part:

"(c) The respondent shall be entitled to a hearing on the merits ifthe respondent files a

.notice of defense, and the notice shall be deemed a specific denial of all parts of the accusation

not expressly admhted. Failure to file a notice of defense shall constitute ·a waiver of

. respondent's right to a hearing, but the agency in its discretion may nevertheless grant a hearing."

Respondent failQd to file a Notice of Defense within 15 days after service upon her of the

Accusation and Petition to Revoke Probation, and therefore waived her right to a hearing on the

merits of the Accusation and Petition to Revoke Probation No. 800-2018-043021.

8. California Government Code section 11520 states, in pertinent part:

"(a) If the respondent either fails to file a· notice of defense or to appear at the hearing, the

agency may take action based upon the respondent'~ express admissions or upon other evidence

and affidavits may be used as evidence without any notice to respondent. II

9. Pursuant to its authority under Government Code section 11520, the Board finds

14 Respondent is in default. The Board will take action without further hearing and, based on

15 Respondent's express admissions by way of default and the evidence before it in the Declarations

16 of Charles Seaman, M.D. and Arlene Caballero, as well as that contained in Exhibits C, D and E,

17 finds that the allegations in the Accusation and Petition to Revoke Probation No. 800-2018-

18 043021 are true.

19 DETERMINATION OF ISSUES

20 1. Based on the foregoing findings of fact, Respondent ELIZABETH ANNE

21 SUTHERLAND, M.D. has subjected her Physician's and Surgeon's Certificate No. G 40463 to

22 discipline.

23 2. A copy of the Accusation and Petition 'to Revoke Probation and the relat~d documents

24 and Declaration of Service are filed with the Exhibit Packet.

25 3. The agency has jurisdiction to adjudicate this case by default.

26 4. The Board is authorized to revoke Respondent's Physician's an~ Surgeon's Certificate

27 based upon the following violations alleged in.the Accusation and Petition to Revoke Probation:

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A. Violation cif Business and Professions Code§§ 2234, 2239 and 822, in that

2 Respondent suffers from an Opioid Use Disorder which impairs her ability to practice medicine

3 without safeguards against relapse, including bodily fluid testing, abstinence and psychotherapy;

4 B. Violation _of Business and Professions Code§ 2234, in that Respondent has

5 failed to comply with the terms and conditions of her Medical ~oard Probation.

6 ORDER

7 IT IS SO c_:>RDERED that Physician's and Surgeon's Certificate No. G 40463, heretofore

8 issued to Respondent ELIZABETH ANNE SUTHERLAND, M.D., is revoked.

9 Pursuant to Government Code section 11520, subdivision ( c), Respondent may serve a

1 o wriJten motion requesting that the Decision be vacated and stating the grounds relied on within

11 seven (7) days after service of the Decision on Respondent. The agency in its discretion may

12 vacate the Decision and grant a hearing on a showing of good cause, as defined in the statute.

13 This Decision shall become effective on JULY 2 7, 2018

14 It is so ORDERED on June 2 7, 2018.

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FOR THE DICAL BO OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS KIMBERLY KIRCHMEYER EXECUTIVE DIRECTOR

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(ELIZABETH ANNE SUTHERLAND, M.D.) DEF AULT DECISION & ORDER

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XAVIER BECERRA Attorney General of California JANE ZACK SIMON Supervising Deputy Attorney General LAWRENCE MERCER Deputy Attorney.General State Bar No. 111898

455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 510-3488 Facsimile: (415) 703-5480

Attorneys for Complainant

FILED STATE OF CALIFORNIA

MEDICAL BOARD OF CALIFORNIA_ SACRAMENTO~ -Z...'t; 20 l 9' BY ~~ ANALYSr)

BEFORE THE J MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation and Petition to Revoke Probation Against:

ELIZABETH ANNE SUTHERLAND, M.D. 869 Ackerman Drive Danville, Ca 94526-1849

Physician's and Surgeon's Certificate No. G 40463,

Respondent.

Complainant alleges:

Case No. 800-2018-043021

ACCUSATION AND PETITION TO REVOKE PROBATION

PARTIES

1. Kimberly Kirchmeyer (Complainant) brings this Accusation and Petition to Revoke

Probation solely in her official capacity as the Executive Director of the Medical Board of

California, Department of Consumer Affairs (Board).

2. On or about August 3, 1979, the Medical Board of California issued Physician's and

Surgeon's Certificate Number G40463 to Elizabeth Anne Sutherland, M.D. (Respondent). The

Physician's and Surgeon's Certificate expired on December 31, 2000, and was canceled on

December 31, 2005. On August 8, 2014, a probationary license was issued to Respondent with

five years probation and terms and conditions; including abstinence from controlled substances

and bodily fluid testing. Respondent tested positive for controlled substances and a Cease Practice

Order issued on May 3, 2017. On May 26, 2017, an Accusation and Petition to Revoke Probation

was filed and, on November 8, 2017, a Decision became effective which placed Respondent on

1 (ELIZABETH ANNE SUTHERLAND, M.D.) ACCUSATION AND PETITION TO REVOKE PROBATION NO.

800-2018-043021

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probation for five years with terms and conditions, including abstinence from controlled

substances and bodily fluid testing. Respondent's Certificate is currently delinquent, with an

expiration date of December 31, 2017.

JURISDICTION

3. This Accusation and Petition to Revoke Probation is brought before the Board, under

the authority of the following laws. All section references are to the Business and Professions

Code unless otherwise indicated.

4. Section 2227 of the Code states:

"(a) A licensee whose matter has b~en 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, or who has entered into a stipulation for disciplhtary

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 rig_ht to practice suspended for a period not to exceed one year upon

order of the board.

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

order of the board.

"(4) Be publicly reprimanded by the board. The public reprimand may include a

requirement that the licensee complete relevant educational courses approved by the board.

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

the board or an administrative law judge may deem proper.

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

review or advisory conferences, professional competency examinations, 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

existing law, is deemed public, and shall be made available to the public by the board pursuant to

Section 803 .1."

5. Section 2228 of the Code states:

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(ELIZABETH ANNE SUTHERLAND, M.D.) ACCUSATION NO. 800-2018-043021

1 "The authority of the board or the California Board of Podiatric Medicine to discipline a

2 licensee by placing him or her on probation includes, but is Iiot limited to, the following:

3 "(a) Requiring the licensee to obtain additional professional training and to pass an

4 examination upon the completion of the training. The examination may be written or oral, or both,

5 and may be a practical or clinical examination, or both, at the option of the board or the

6 administrative law judge.

7 "(b) Requiring the licensee to submit to a complete diagnostic examination by one or more

8 physicians and surgeons appointed by the board. If an examination is ordered, the board shall ·

9 receive and consider any other report of a complete diagnostic examination given by one or more

10 physicians and surgeons of the licensee's choice.

11 "( c) Restricting or limiting the extent, scope, or type of practice of the licensee, including

12 requiring notice to applicable patients that the licensee is unable to perform the indicated

13 treatment, where appropriate.

14 "( d) Providing the option of alternative community service in cases other than violations

15 relating to quality of care."

16 6. Section 2234 of tile Code states:

1 7 "The board shall take action against any licensee who is charged with unprofessional

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

19 limited to, the following:

20 "(a) Violating or attempting to violate, directly or indirectly, assisting in or aqetting the

21 violation of, or conspiring to violate any provision ofthis chapter.

22 " ... (f) Any.action or conduct which would have warranted the denial of a certificate."

23 7. Section 2239 of the Code states:

24 "(a) The use or prescribing for or administering to himself or herself, of any controlled ·

. 25 substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic

26 beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to

2 7 any other person or to the public, or to the extent that such use impairs the ability of the licensee

28 to practice medicine safely or more than one misdemeanor or any felony involving the use,


800-2018-043021

1 consumption, or self-administration of any of the substances-referred to in this section, or any

2 combination thereof, constitutes unprofessional conduct. The record of the conviction is

3 conclusive evidence of such unprofessional conduct."

4 8. Section 822 of the Code provides:

5 "If a licensing agency determines that its licentiate's ability to practice his or her profession

6 safely is impaired because the licentiate is mentally ill, or physically ill affecting competency, the

7 · licensing a~ency may take action by any one of the following methods:

8 "(a) Revoking the licentiate's certificate or license.

9 "(b) Suspending the licentiate's right to practice.

1 O "( c) Placing the licentiate on probation.

11 "( d) Taking such other action in relation to the licentiate as the licensing agency in its

12 discretion deems proper. . .

13 "The licensing agency shall not reinstate a revoked or suspended certificate or license until

14 it has received competent evidence of the absence or control of the condition which caused its

15 action and until it is satisfied that with due regard for the public health and safety the person's

16 right to practice his or her profession may be safely reinstated."

17 9. · Section 118 of the Code provides:

18 " ... (b) The suspension, expiration, or forfeiture by opt:(ration of law of a license issued by

19 a board in the department, or its suspension, forfeiture, or cancellation by order of the board or by

20 order of a court of law, or its surrender without the written consent of the board, shall not, during

21 any period during which it may be renewed, restored, reissued, or reinstated, deprive the board of,

22 its authority to institute or continue a disciplinary proceeding against a licensee upon any ground ·,

23 /provided by law or to enter an order suspending or revoking the. license or otherwise taking

24 disciplinary action against the licensee on any such ground." FIRST CAUSE FOR DISCIPLINE

25 (Chemical Dependency)

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10. Respondent Elizabeth Anne Sutherland, M.D. is subject to disciplinary action under

Section 2234 and 822 of the Code in that Respondent has a psychiatric di(,lgnosis of Opioid Use


800-2018-043021

1 Disorder, which renders her a potential thre~t to patients and to herself. The circumstances are as

2 .follows:

3 11. Beginning in or about 2007, while she was living and practicing medicine in the State

4 of Arizona, Respondent began taking Oxycontin 1 that had been prescribed to her husband.

5 Between 2007 and 2011, she estimated that she was taking 40-60 mg/day. In 2011, she entered

6 into an agreement with the Arizona Medical Board under which she was required to abstain from

7 the use of controlled substances and to submit to bodily fluid testing,

8 12. On February 6, 2014, Respondent submitted an application for a Ca:lifornia

9 Physician's and Surgeon's Certificate. Effective August 8, 2Q14, the Board issued a probationary

1 o license to Respondent to practice medicine i]} California. The decision requireci that Respondent

11 abstain from use of controlled substances and other dangerous drugs and prescription

12 · medications, except those lawfully prescribed to Respondent by another practitioner for a bona

13 fide illness or condition.

14 13. On March 25, 2015, Respondent advised the Board that she had undergone a shoulder

15 surgery on March 23~ 2015, and that the surgeon had prescribed Non:;o2 for post-operative pain

16 relief. She advised that she doubted she would use all of the 60 tablets prescribed and that she

17 would "take them to a local police station for disposal."

18 14. On November 23, 2015, Respondent advised that she had undergone a further

19 shoulder surgery and had been prescribed Percocet3" #48, by the surgeon. She advised that her

20 husband would store the medication in a secure place and only dispense it as needed.

21 15. On October 26, 2016, Respondent was selected to submit a hair sample for testing.

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Respondent stated that traffic kept her from reacl~ing the testing location on time.

1 Oxycontin is a potent opioid and a Schedule II controlled substance. Oxycontin is indicated for the management of moderate to severe pain, and is a commonly abused or diverted drug. .

2 Norco is a trade name for a combination of hydrocodone and acetaminophen. Norco is an opioid pain medication and a controlled substance with a high potential for dependence and · abuse.

3 Percocet is a trade name for a combination of oxycodone and acetaminophen. Percocet is an opioid pain medication and a controlled substance with a high potential for dependence and abuse. ·


800-2018-043021

1 16. On o.ctober 27, 2016, Respondent submitted a hair sample that tested positive for

2 oxycodone. Respondent explained that she had been taking medication left from her November

3 2015 shoulder surgery for pain related to a molar extraction. She reported that she had also been

4 prescribed six tablets of Percocet by her dental surgeon.

5 17. On March 14, 2017, Respondent notified the Board that she had been selected for

6 another special test and that she might test positive for low levels of oxycodone due to her

7 October 2016 prescription. Respondent's test results were positive for oxycodone, 289 pg/mg.

8 18. On April 17, 2017, the Board received the result of a urine sample collected from

9 Respondent on April 12, 2017. The sample was positive for Tramadol4 at38,227 ng/ml.

1 O Respondent explained that she must have accidentally taken tramadol prescribed for her husband,

11 stating that she had been ill and probably "underslept" when she mistook her husband's

12 medication for her own.

13 19. On May 3, 2017, the Board issued a Cease Practice Order based upon Respondent's

14 positive drug tests. On May 26, 2017, an Accusation and Petition to Revoke Probation was filed

15 against Respondent's Certificate. On November 8, 2017, pursuant to a Decision which adopted a

16 stipulated settlement, Respondent was placed upon a probation which superseded her prior

17 probation and which imposed terms and conditions, including abstinence, bodily fluid testing, an

18 ethics course, psychotherapy, substance abuse support group meetings and a psychiatric

19 evaluation.

20 20. On October 27, 2017, Respondent met with her Board probation' monitor. At that

21 time, all of the terms and conditions of her probation were reviewed with her. A letter reiterating

22 the terms and conditions was also sent to Respondent.

23 21. On December 2, 2017, Respondent was evaluated by a psychiatrist appointed by the

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Board. The psychiatrist obtained a history froin Respondent that he concluded was consistent with

an Opioid Use Disorder. He ~lso concluded that Respondent's history of chronic pain was a major

risk factor for relapse and substance abuse. He pointed out that the high concentration of ·

4 Tramadol, which is marketed under the trade name Ultram, is a narcotic-like pain medication and a controlled substance. Tramadol has been linked to drug dependence and abuse.

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800-2018-043021

1 Tramadol detected by testing appeared inconsistent with her report of taking 1-2 tablets by

2 mistake. The psychiatrist opined that Respondent required participation in an outpatient chemical

3 dependency program, ongoing psychotherapy addressing her substance abuse, abstinence and

4 bodily fluid testing in-order to practice medicine safely.

5 22. Respondent did not renew her Physician's and Surgeon's Certificate, which expired

6 on December 31, 2017.5 Respondent also ceased complying with the terms and conditions of her

7 probation. She stated that she had not renewed her license and that the Board no longer had

8 jurisdiction to enforce the stipulated settlement and decision.

9 23. On May 3, 2018, the Board obtained a CURES6 report covering the period since th~__,

IO effective date of Respondent's probation, i.e., November 8, 2017. The report indicated that,

11 despite the requirement that she abstain from controlled substances, Respondent was obtaining

12 presc;ip!ions for Tramadol, 50 mg, and Oxycodone7, 5 mg.

13 24. Respondent is guilty of unprofessional conduct and Respondent's Certificate is

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subject to discipline pursuant to Business and Professions Code§§ 2234 and 822 in that

Respondent has been diagnosed with an Opioid Use Disorder and is not abstaining from the use

of controlled substances. Her disorder and her continued use of opioids impairs her ability to

practice medicine and poses a threat of harm to herself and to the public ..

SECOND CAUSE FOR DISCIPLINE

(Controlled Substance Abuse)

25. Respondent Elizabeth Anne Sutherland, M.D. is subject to disciplinary action under

sections 2234(a), 2234(f) and 2239 of the Code in that Respondent used controlled substances in a

manner and/or amount injurious to herself.and/or to the public.

5 Pursuant to Section 118(b) of the Code, the Board retains authority to institute or continue a disciplinary action against a licensee during any period when the license may be renewed or reinstated. ·

6 CURES (Controlled Substance Utilization Review and Evaluation System) is a database of Schedule II, III and IV controlled substance prescriptions dispensed in California serving the public health, regulatory oversight agencies, and law enforcement.

7 Oxycodone is a narcotic analgesic with multiple actions similar to those of morphine. Oxycodone is a controlled substance and is available in combination with other drugs or alone. It can produce drug dependence and, therefore has the potential for being abused.

7 (ELIZABETH ANNE SUTHERLAND, M.D.) ACCUSATION AND PETITION Tp REVOKE PROBATION NO.

. 800-2018-043021

1 26. Complainant incorporates Paragraphs 10 through 24 above in this, the Second Cause

for Discipline, as though fully set out herein.

CAUSE TO REVOKE PROBATION (Violation of Terms of Probation)

5 27. At all times after the effective date of Respondent's probation, i.e., November 8,

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20.17, she was required to comply with the following terms and conditions:

A. Condition #3 - Professionalism Program (Ethics Course) - a minimum of 14 classroom

hours with longitudinal follow-up at six months and one year after classroom instruction;

B. Condition #4-Psychotherapy-Respondent was required to nominate a California

licensed, board-certified psychiatrist or licensed psychologist and to undergo psychotherapy;

C. Condition #8 - Biological Fluid Testing - Respondent was required to check in with the

designated testing laboratory and to submit to random testing when selected;

1?· Condition #9 - Substance Abuse Support Group - Respondent was required to attend

substance abuse support group meetings;

E. Condition #15 -Quarterly Declarations - Respondent was required to submit quarterly

declarations to the Board's Probation Unit;

F. Condition #16- General Probation Requirements-Respondent was required to

maintain a current and renewed Physician's and Surgeon's Certificate.

19 28. Respondent failed to comply with the terms of her Board probation andher probation

20 is subject to revocation for the following reasons:

21 A. _ _Respondent failed to complete the longihidinal follow up course work after completing

22 the two-day classroom instruction on July 8-9, 2017;

23 B. Respondent failed to undergo psychotherapy with a Board-approved therapist;

24 C. Respondent failed to check in with the testing laboratory and failed to be tested when _

25 selected;

26 D. Respondent discontinued participation in a substance abuse support group after

27 November 9, 2017;

28 E. Respondent failed to file quarterly declarations; 8

(ELIZABET!J ANNE SUTHERLAND, M.D.) ACCUSATION AND PETITION TO REVOKE PROBATION NO. 800-2018-043021

1 F. Respondent failed to renew her Physician's and Surgeon's Certificate, which expired on

2 December 31, 2017.

3. DISCIPLINARY CONSIDERATIONS

4 29. To _determine the degree of discipline, if any, to be imposed on Respondent Elizabeth

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Anne Sutherland, M.D., Complainant alleges that on August 7, 2014, in the decision entitled "In ·

the Matter of the Application of Elizabeth Anne Sutherland" MBC Case No. 8002014006704,

Respondent was placed on probation with terms and conditions including, but not limited to, l

abstinence from controlled substances and bodily fluid testing. Respondent failed to abstain from

controlled substances, resulting in the disciplinary action and stipulated disciplinary decision

which constitute the basis for this Accusation and Petition to Revoke Probation.

PRAYER

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

and that following.the hearing, the Medical Board of Californi~issue a decision:

1. Revok,ing the probation that was granted by the Medical Board of California in Case

15 No. 800-2017-032060 and imposing the underlying Order ofrevo~ation;

16 2. Revoking or suspending Physician's and Surgeon's Certificate Number G 40463,

17 issued to Elizabeth Anne Sutherland, M.D.;

18 3. Revoki~g, suspending or denying approval of Elizabeth ~e Sutherland, M.D.'s

19 authority to supervise physician assistants and advanced practice nurses;

20 4. Ordering Elizabeth Anne Sutherland, M.D., if placed on probation, to pay the Board

21 ·the costs of probation monitoring; and

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5. Taking such other ,and further action as deemed necessary and proper.

24 DATED: Ma.y 22.2018

25 Executive Dire or Medical Board of California

26 Department of Consumer Affairs State of California

27 Complainant SF2018501066

28 21121644.doc


800-2018-043021

medical board of california department of consumer … elizabeth anne 201… · before the medical...

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