BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against: )

MICHAEL STEPHEN SOMERO, M.D.

Physician's and Surgeon's Certificate No. G 77068

Respondent

) ) ) ) ) ) ) )

Case No. 09-2013-230016

___________________________ )

DECISION AND ORDER

The attached Stipulated Settlement and Disciplinary Order is hereby adopted as the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California.

This Decision shall become effective at 5:00 p.m. on .r a 0 u a r y 1 3 • 2 0 1 6 .

ITISSOORDERED: December J4. 2015-

MEDICAL BOARD OF CALIFORNIA

KAMALA D. HARRIS Attorney General of California

2 THOMAS S. LAZAR Supervising Deputy Attorney General

3 MARTIN W. HAGAN Deputy Attorney General

4 State Bar No. 155553 600 West Broadway, Suite 1800

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

6 San Diego, CA 92186-5266 Telephone: (619) 645-2094

7 Facsimile: (619) 645-2061

8 Attorneys for Complainant

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BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

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13 In the Matter of the Accusation Against:

14 MICHAEL SOMERO, M.D. 1613 Alton Road

15 Miami Beach, Florida 33139

16 Physician's and Surgeon's Certificate No. G77068

Respondent.

Case No. 09-2013-230016 OAH No. 2014100538

STIPULATED SETTLEMENT AND DISCIPLINARY ORDER

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19 IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

20 entitled proceedings that the following matters are true:

21 PARTIES

22 1. Kimberly Kirchmeyer ("Complainant") is the Executive Director of the Medical

23 Board of California. She brought this action solely in her official capacity and as such is

24 represented in this matter by Kamala D. Harris, Attorney General of the State of California, by

25 Martin W. Hagan, Deputy Attorney General.

26 2. Respondent Michael Somero, M.D. ("respondent") is represented in this proceeding

27 by Deborah deBoer, Esq., of Kramer, DeBoer & Keane whose address is: 74770 Highway 111,

28 Ste. 201, Indian Wells, CA 92210.

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-2013-230016)

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3. On July 1, 1993, the Medical Board of California issued Physician's and Surgeon's

Certificate No. G77068 to respondent. The Physician's and Surgeon's Certificate was in full

force and effect at all times relevant to the charges and allegations brought in Accusation No. 09-

2013-230016 and will expire on June 30,2017, unless renewed.

JURISDICTION

4. On August 13, 2014, Accusation No. 09-2013-230016 was filed before the Medical

Board of California (Board), Department of Consumer Affairs, and is currently pending against

respondent. A true and correct copy of Accusation No. 09-2013-230016 and all other statutorily

required documents were properly served on respondent. Respondent timely filed his Notice of

Defense contesting the Accusation. A true and correct copy of Accusation No. 09-2013-230016

is attached hereto as Exhibit A and incorporated by reference as if fully set forth herein.

ADVISEMENT AND WAIVERS

5. Respondent has carefully read, fully discussed with counsel, and fully understands the

charges and allegations in Accusation No. 09-2013-230016. Respondent has also carefully read,

fully discussed with counsel, and fully understands the effects of this Stipulated Settlement and

Disciplinary Order.

6. Respondent is fully aware of his legal rights in this matter, including the right to a

hearing on the charges and allegations in Accusation No. 09-2013-230016; the right to confront

and cross-examine the witnesses against him; the right to present evidence and to testify on his

own behalf; the right to the issuance of subpoenas to compel the attendance of witnesses and the

production of documents; the right to reconsideration and court review of an adverse decision;

and all other rights accorded by the California Administrative Procedure Act and other applicable

laws.

7. Having the benefit of counsel, respondent hereby voluntarily, knowingly, freely, and

intelligently waives and gives up each and every right set forth above.

Ill!

Ill!

Ill!

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-20 13-2300 16)

CULPABILITY

2 8. Respondent agrees that, at an administrative hearing, complainant could establish a

3 prima facie case with respect to the charges and allegations contained in Accusation No. 09-2013-

4 230016, and that he has thereby subjected his Physician's and Surgeon's Certificate No. G77068

5 to disciplinary action. Respondent further agrees to be bound by the Board's imposition of

6 discipline as set forth in the Disciplinary Order below.

7 9. Respondent agrees that if an accusation and/or petition to revoke probation is filed

8 against him before the Medical Board of California, or if he ever petitions for early termination or

9 modification of probation, in any other proceeding before the Medical Board of California, all of

10 the charges and allegations contained in Accusation No. 09-2013-230016 shall be deemed true,

11 correct and fully admitted by respondent for purposes of any such proceeding or any other

12 licensing proceeding involving respondent in the State of California.

13 RESERVATION

14 10. The prima facie admissions made by respondent herein are only for the purposes of

15 this proceeding, or any other proceedings in which the Board or other professional licensing

16 agency in the State of California is involved, and shall not be admissible in any other criminal or

17 civil proceeding.

18 CONTINGENCY

19 11. The parties agree that this Stipulated Settlement and Disciplinary Order shall be

20 submitted to the Board for its consideration in the above-entitled matter and, further, that the

21 Board shall have a reasonable period of time in which to consider and act on this Stipulated

22 Settlement and Disciplinary Order after receiving it. By signing this stipulation, respondent fully

23 understands and agrees that he may not withdraw his agreement or seek to rescind this stipulation

24 prior to the time the Board considers and acts upon it.

25 12. The parties agree that this Stipulated Settlement and Disciplinary Order shall be null

26 and void and not binding upon the parties unless approved and adopted by the Board, except for

27 this paragraph, which shall remain in full force and effect. Respondent fully understands and

28 agrees that in deciding whether or not to approve and adopt this Stipulated Settlement and

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-20 13-2300 16)

Disciplinary Order, the Board may receive oral and written communications from its staff and/or

2 the Attorney General's office. Communications pursuant to this paragraph shall not disqualify

3 the Board, any member thereof, and/or any other person from future participation in this or any

4 other matter affecting or involving respondent. In the event that the Board, in its discretion, does

5 not approve and adopt this Stipulated Settlement and Disciplinary Order, with the exception of

6 this paragraph, it shall not become effective, shall be of no evidentiary value whatsoever, and

7 shall not be relied upon or introduced in any disciplinary action by either party hereto.

8 Respondent further agrees that should the Board reject this Stipulated Settlement and Disciplinary

9 Order for any reason, respondent will assert no claim that the Board, or any member thereof, was

10 prejudiced by its/his/her review, discussion and/or consideration of this Stipulated Settlement and

11 Disciplinary Order or of any matter or matters related hereto.

12 ADDITIONAL PROVISIONS

13 13. This Stipulated Settlement and Disciplinary Order is intended by the parties herein to

14 be an integrated writing representing the complete, final and exclusive embodiment of the

15 agreements of the parties in the above-entitled matter.

16 14. The parties agree that copies of this Stipulated Settlement and Disciplinary Order,

17 including copies of the signatures of the parties, may be used in lieu of original documents and

18 signatures and, further, that such copies and signatures shall have the same force and effect as

19 originals.

20 15. In consideration of the foregoing admissions and stipulations, the parties agree the

21 Board may, without further notice to or opportunity to be heard by respondent, issue and enter the

22 following Disciplinary Order:

23 DISCIPLINARY ORDER

24 A. PUBLIC REPRIMAND

25 IT IS HEREBY ORDERED that respondent Michael Somera, M.D., Physician's and

26 Surgeon's Certificate No. G77068, shall be and is hereby Publicly Reprimanded pursuant to

27 California Business and Professions Code section 2227, subdivision (a)(4). This Public

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-2013-230016)

Reprimand, which is issued in connection with respondent's care and treatment of patient D .L. as

2 set forth in Accusation No. 09-2013-230016, is as follows:

3 You committed repeated negligent acts, failed to maintain adequate and

4 accurate medical records, and demonstrated incompetence by misinterpreting a

5 blood culture as containing methicillin-resistant Staphylococcus Aureus (MRSA)

6 bacteremia when, in truth and fact, it did not, in your care and treatment of patient

7 D.L. from on or about September 16,2011, to on or about November 7, 2012, as

8 more fully set forth in Accusation No. 09-2013-230016, a true and correct copy of

9 which is attached hereto as Exhibit A and incorporated by reference as if fully set

1 0 forth herein.

11 B. MEDICAL RECORD KEEPING COURSE

12 Within 60 calendar days of the effective date of this Decision, respondent shall enroll

13 in a course in medical record keeping equivalent to the Medical Record Keeping Course offered

14 by the Physician Assessment and Clinical Education Program, University of California, San

15 Diego School of Medicine (Program), approved in advance by the Board or its designee.

16 Respondent shall provide the program with any information and documents that the Program may

17 deem pertinent. Respondent shall participate in and successfully complete the classroom

18 component ofthe course not later than six (6) months after respondent's initial enrollment.

19 Respondent shall successfully complete any other component of the course within one ( 1) year of

20 enrollment. The medical record keeping course shall be at respondent's expense and shall be in

21 addition to the Continuing Medical Education (CME) requirements for renewal of licensure.

22 A medical record keeping course taken after the acts that gave rise to the charges in the

23 Accusation, but prior to the effective date of the Decision may, in the sole discretion of the Board

24 or its designee, be accepted towards the fulfillment of this condition if the course would have

25 been approved by the Board or its designee had the course been taken after the effective date of

26 this Decision.

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-20 13-2300 16)

1 Respondent shall submit a certification of successful completion to the Board or its

2 designee not later than 15 calendar days after successfully completing the course, or not later than

3 15 calendar days after the effective date of the Decision, whichever is later.

4 Failure to participate in and successfully complete the medical records keeping course as

5 outlined above shall constitute unprofessional conduct and grounds for further disciplinary action.

6 C. CLINICAL TRAINING PROGRAM

7 Within 60 calendar days of the effective date of this Decision, respondent shall enroll

8 in a clinical training or educational program equivalent to the Physician Assessment and Clinical

9 Education Program (PACE) offered at the University of California - San Diego School of

10 Medicine ("Program"). Respondent shall successfully complete the Program not later than six (6)

11 months after respondent's initial enrollment unless the Board or its designee agrees in writing to

12 an extension of that time.

13 The Program shall consist of a Comprehensive Assessment program comprised of a two-

14 day assessment of respondent's physical and mental health; basic clinical and communication

15 skills common to all clinicians; and medical knowledge, skill and judgment pertaining to

16 respondent's area of practice in which respondent was alleged to be deficient, and at minimum, a

17 40 hour program of clinical education in the area of practice in which respondent was alleged to

18 be deficient and which takes into account data obtained from the assessment, Decision(s),

19 Accusation(s), and any other information that the Board or its designee deems relevant.

20 Respondent shall pay all expenses associated with the clinical training program.

21 Based on respondent's performance and test results in the assessment and clinical

22 education, the Program will advise the Board or its designee of its recommendation(s) for the

23 scope and length of any additional educational or clinical training, treatment for any medical

24 condition, treatment for any psychological condition, or anything else affecting respondent's

25 practice of medicine. Respondent shall comply with Program recommendations.

26 At the completion of any additional educational or clinical training, respondent shall submit

27 to and pass an examination. Determination as to whether respondent successfully completed the

28 examination or successfully completed the program is solely within the program's jurisdiction.

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-20 13-2300 16)

1 lfrespondent fails to enroll, patticipate in, or successfully complete the clinical training

2 program within the designated time period, respondent shall receive a notification :from the Board

3 or its designee to cease the practice of medicine within three (3) calendar days after being so

4 notified. The respondent shall not resume the practice of medicine until enrollment or

5 participation in the outstanding portions of the clinical training program have been completed. If

6 the respondent did not successfully complete the clinical training program, tbe respondent shall

7 not resume the practice of medicine ttntil a final decision has been rendered on the accusation

8 and/or a petition to revoke probation.

9 Failure to participate in and successfully complete all phases of the clil:rical training

1 0 program as outlined above shall constitute unprofessional conduct and grounds for further

ll disciplinary action.

12 ACCEPTANCE

13 I have carefully read the above Stipulated Settlement and Disciplinary Order and, having

14 the benefit of comLSel, enter into it freely, voluntarily, intelligently, and with full knowledge of its

15 force and effect on my Physician's and Surgeon's Certificate No. 077068. 1 fully understand

16 that, after signing this stipulation, I may not \\tithdraw from it, that it shall be submitted to the

17 Medical Board of California fo!' its consideration, and that the Board shall have a reasonable

18 period of time to consider and act on tllis stipulation after receiving it. By entering into this

19 stipulatim1, I fully understand that, upon tormal acceptance by the Board, I shall be publicly

20 reprimanded by the Board and shall be ryquired to comply with all of the terms and conditions of

21 the Disciplinary Order set f01th above. I also fully 1mderstand that any failure to comply with the

22 terms and conditions of the Disciplinary Order set forth above shall constitute unprofessional

23 conduct and will subject my Physician's and Surgeon's Certi±l.cate No. G77068 to further

24 disciplinary action.

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DATED: ({)-/ OC::;o!!£1<, 2-ot5 /~/wf~--w/lf4J"' ~~~~~~~~~--~~--------:tv.UCHAEL SOMERO, M.D. Respondent

7 STIPULATED SE'rri.EM.ENT AND DISCIPLINARY ORDER (09-2013-230016)

I have read and fully discussed with respondent Michael Somera, :tvLD., the terms and

2 conditions and other matters contained in the above Stipulated Settlement and Disciplinary Order.

3 I approve its fonn and content.

4 DATED: {b: 0 c2[)/S' DEBORAH DEBOER, ESQ. Attorney for respondent 5

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ENDORSEl\IIENT

The foregoing Stipulated Settlement and Disciplinary Order is hereby respectfully

submitted for consideration by the Medkal Board of California.

Dated: { 0 (7 / Z..o { 5 RespectfuUy submitted, ,

KAMALA D. HARRIS Attorney General of Califomia THOJ\.1.AS S. LAZAR

Supet'i ing Depf,' Jt'tf'rney General

f Iii' V!~:r/' ~R' IN W. HAGAN Deputy Attorney 0 ral Attorneys for Complainant

19 SD2014707376

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STIPULATED SE1TLEMENT AND DlSClpLlNARY ORDER (09-2013-230016)

Exhibit A

Accusation No. 09-2013-230016

KAiviALA D. IL\RRIS Attorney General of California

2 THOMAS S. LAZAR

Supervising Deputy Attorney General 3 MARTI1\ W. HAGAN

Deputy A ttorncy General 4 State Bar No. 155553

110 West "A" Street, Suite 1100 5 San Diego, CA 92101

P.O. Box 85266 6 San DieQo. CA 92186-5266

Telcpho~1e: (619) 645-2094 7 Facsimile: (619) 645-2061

8 Attorney.1jrJr Complainant

9 BEFORETHE MEDICAL BOARD OF CALIFORNIA

1 0 DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

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In the Matter of the Accusation Against:

MICHAEL SOMERO, M.D. 2300 S. Congress Avenue, Suite 100 Boynton Beach, FL 33426-7400

15 Physician's and Surgeon's Certificate No. G77068

Case No. 09-2013-230016

ACCUSATION

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Respondent.

Complainant alleges:

19 PARTIES

20 I. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her onicial capacity

21 as the Executive Director of the Medical Board of California. Department of Consumer Afiairs.

22 On or about July 1. 1993. the Medical Board of California issued Physician's and

23 Surgeon's Certificate Number G77068 to Michael Son1ero, M.D. (Respondent). The Physician's and

24 Surgeon· s Certi ficatc \Vas in full force and effect at all times relevant to the charges brought herein

25 and will expire on June 30, 2015, unless renewed.

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27 Ill!

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Accusation

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JURISDICTION

3. This Accusation is brought before the Medical Board of California (Board), Department

of Consumer Affairs, under the authority of the following laws. All section references are to the

Business and Professions Code (Code) unless otherwise indicated.

4. Section 2227 of the Code provides that a licensee who is found guilty under the Medical

Practice Act may have his or her 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,

which may include a requirement that the licensee complete relevant educational courses, or have

such other action taken in relation to discipline as the Board deems proper.

5. Section 2234 of the Code, states:

"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:

"(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.

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"(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.

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Accusation

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"(d) Incompetence.

" "

Section 2266 of the Code states:

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

5 records relating to the provision of services to their patients constitutes unprofessional

6 conduct."

7 FIRST CAUSE FOR DISCIPLINE

8 (Repeated Negligent Acts)

9 7. Respondent has subjected his Physician's and Surgeon's Certificate Number 077068 to

10 disciplinary action under sections 2227 and 2234, as defined by section 2234, subdivision (c), of the

11 Code, in that he committed repeated negligent acts in his care and treatment of patient DL, as more

12 particularly alleged herein:

13 8. On or about September 16, 2011, patient DL, an 81 year-old male, was initially seen by

14 Respondent for an outpatient infectious disease consultation. Patient DL' s past medical history

15 included chronic obstructive pulmonary disease (COPD), coronary artery disease status post coronary

16 stent placement, hypertension, atrial arrhythmia, Parkinson's disease and cachexia (loss of body

17 mass). The purpose of the consultation was to evaluate the patient's pneumonia which was not

18 responding to antibiotic therapy as prescribed by the patient's primary care physician, Dr. NC.

19 Respondent noted patient DL complained of"easy fatigability, cough, shortness of breath, occasional

20 hemoptysis (sputum with blood), cachexia, anorexia and overall failure to thrive." Patient DL was

21 "relegated to a wheelchair" and "very debilitated." A sputum culture, previously ordered by Patient

22 DL's pulmonologist, Dr. ST, was reported to contain many Escherichia coli and many methicillin-

23 sensitive Staphylococcus aureas. Respondent conducted a physical examination which included a

24 review of patient DL' s general appearance, lungs, abdomen, extremities and neurologic condition.

25 There was no documentation of the patient's temperature. Respondent's impression was "staph

26 aureus pneumonia and tracheobronchitis" with a notation that "[a)lthough E. Coli was discovered in

27 the sputum, I suspect staph aureus is the pathogen here." Respondent's treatment plan included

28 changing patient DL's medication to doxycycline 100 mg b.i.d. (twice a day); Marino! to stimulate

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Accusation

appetite and two week follow up to check on the patient's progress. There was no documentation of

2 any plan to reimage patient DL' s lungs even though the clinical impression included a diagnosis of

3 pneumonia. At the time ofthis consultation, patient DL's most recent imaging study ofthe lungs was

4 a CT of the chest taken over one month earlier on August 10, 2011.

5 9. On or about October 5, 2011, patient DL had an outpatient follow up visit with

6 Respondent. Respondent's "Infectious Disease Follow-Up I Progress Note" for this visit indicates,

7 among other things, that the patient was "doing much better [and] [h]is staph tracheabronchitis

8 appears to be significantly improved." There were no specific details regarding the basis for this

9 assessment. The recorded physical examination was limited to the lungs which were reported to be

10 clear. Once again, there was no temperature recorded and no reference to any imaging study ofthe

11 chest or any plans to obtain an imaging study. The treatment plan was "to observe carefully and have

12 [patient DL] follow up in two months."

13 10. On or about December 21, 2011, patient DL had an outpatient follow up visit with

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Respondent. Respondent's "lnfecti o us Disease Follow-Up I Progress Note" for this visit is confusing

and contradictory and indicates, among other things, that patient DL "appears to be improving" yet it

was also noted that "[t]he patient has severe tracheobronchitis and a recurrent urinary tract infection"

with another part of the progress note stating "[t]he patient's tracheobronchitis appears to be

resolved" and "[h]e had a recent urinary tract infection secondary toe-coli, which has resolved, but

the risk ofrectmence is strong." The objective basis for any recurrent urinary tract infection was not

mentioned in the progress note and there was no reference to any urinalysis or urine culture to

substantiate the basis for the urinary tract infection. The progress note also indicated "I am going to

be stopping the Levaquin 1 and continuing long term suppressive therapy with nitrofurantoin."2 The

progress note did not reference any laboratory studies such as those to assess renal function which

would have been appropriate since nitrofuratonin is contraindicated in patients with renal

1 Levaquin is the trade name for levoflaxin, an antiobiotic that can be used to treat bacterial infections of the skin, sinuses, kidneys, bladder, or prostate and may also be used to treat bacterial infections which cause bronchitis or pneumonia.

2 Respondent's previous progress note of October 5, 2011, failed to mention any problems with urinary tract infections or that patient DL had been prescribed Levaquin.

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Accusation

insufficiency. There was no documentation in the progress note of any temperature being taken and

2 the only organ system recorded as being examined were the lungs.

3 11. On or about February 8, 2012, patient DL had an outpatient follow up visit with

4 Respondent. Respondent's "Infectious Disease Follow-Up/Progress Note" for this visit indicates the

5 patient "is much improved" without specific details regarding the basis for this assessment. 3 There is

6 no documentation of any temperature being taken and the only organ system recorded as being

7 examined are the lungs which were reported as being "clear." There is no mention of any imaging

8 studies of the lungs nor a urinalysis or urine culture in the progress note. Respondent's treatment plan

9 was to provide the patient with a prescription of Marino! 5 mg b.i.d. (twice daily), "hold off on the

10 antibiotics for now since the patient has experienced such a dramatic improvement" and follow up

1 J appointment in approximately 2 months.

12 12. On or about March 2, 2012, patient DL had an outpatient follow up visit with

13 Respondent. Respondent's "Infectious Disease Follow-Up/Progress Note" for this visit indicates the

14 patient "has easy fatigability, myalgia, arthralgia and thacheobronchitis." There was no

15 documentation of any temperature being taken and no record of any physical examination being

16 conducted. The progress note stated Respondent was "starting him on some mycobacterium

17 medication consisting of azithromycin and Ethambutol" for treatment of a Mycobacterium avium

18 complex (MAC) infection. There was no written basis in the progress note for the clinical impression

19 of MAC infection such as any reference to imaging studies or any microbiological results.

20 13. On or about April 3, 2012, patient DL had an outpatient follow up visit with Respondent.

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Respondent's "Infectious Disease Follow-Up/Progress Note" for this visit indicates the plan was to

continue treatment of the MAC presumed infection with azithromycin and Ethambutol with follow up

in one month. There was no physical examination recorded in the progress note and no reference to

any microbiological or other laboratory studies.

3 The progress note is extremely brief and states "The patient presents for a follow-up visit. He is much improved. The patient actually appears much stronger than on his last visit. Lung fields are clear. Tracheobronchitis is much improved. The patient has some cachexia and is improving on Marino!. He is requesting an increase in his prescription for this. I am giving him Marino! 5 mg b.i.d. [~] The plan is hold off on the antibiotics for now since the patient has experienced such a dramatic improvement. Follow-up in approximately two months."

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Accusation

14. On or about May 2, 2012, patient DL had an outpatient follow up visit with Respondent.

2 Respondent's "Infectious Disease Follow-Up/Progress Note" for this visit indicates the patient was

3 "experiencing severe symptoms oftacheobronchitis." There was no documentation of any physical

4 examination or laboratory studies. Respondent counseled the patient about smoking cessation and the

5 patient agreed to reduce his cigarettes from seven to four per day. The azithromycin and Ethambutol

6 were continued with a follow up appointment scheduled for one month.

7 15. On or about June 1, 2012, patient DL had an outpatient follow up visit with Respondent.

8 Respondent's "Infectious Disease Follow-Up/Progress Note" for this visit indicates "several family

9 members [were] present with him." Patient DL was reportedly "still having some difficulty breathing

10 but [was] compliant with his medications." The risks and side effects of the azithromycin and

11 Ethambutol were reviewed along with "the new risk for azithromycin" that were recently published.

12 No physical examination was recorded and the azithromycin and Ethambutol were continued to treat

13 the MAC presumed infection. Respondent "gave the patient reassurance and emphasized the need for

14 adherence to his current medication" with a follow up appointment set for approximately one month.

15 16. On or about September 6, 2012, Respondent placed patient DL on home IV antibiotic

16 therapy which consisted of ceftriaxone 1 g daily for a duration of seven days to treat a complex

17 urinary tract infection.4

18 17. On or about September 13, 2012, patient DL had an outpatient follow up visit with

19 Respondent with a notation that "[n]umerous family members were present in the room."

20 Respondent's "Infectious Disease Follow-Up/Progress Note" for this visit indicates "[t]he patient

21 [was] completing therapy for a complex urinary tract infection" and that "[h]e [was] also cachectic

22 and had ongoing chronic lung problems, as demonstrated by tracheobronchitis." The plan was to

23 continue IV antibiotic therapy with follow up in approximately one month. There was no record of

24 any temperature being taken and there was no documented physical examination.

25 18. On or about October 17, 2012, patient DL had an outpatient follow up visit with

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Respondent. Respondent's "Infectious Disease Follow-Up/Progress Note" for this visit indicates the

4 An antibiotic resistant Klebsiella bacteria was documented to have grown on a urine culture which was reported to be sensitive to the administered ceftriaxone.

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Accusation

patient was "complaining of some suprapubic pain" and that Respondent suspected "he ha[ d] another

2 urinary tract infection." Respondent's plan was to send patient DL to urinalysis to confirm whether

3 the patient had a urinary tract infection and, if so, begin another round of IV antiobiotic therapy.

4 There was no documentation of any physical examination during this visit.

5 19. On or about October 18,2012, a urine culture was ordered by Respondent which was

6 reported to be positive for methicillin resistant Staphylococcus aureus (MRSA) on October 20, 2012.

7 In response, Respondent called in a prescription of Vibramycin (doxycycline) I 00 mg PO (orally)

8 b.i.d. (twice daily) and spoke with patient DL's caregiver about the prescription.

9 20. On or about October 23, 2012, patient DL was admitted to Eisenhower Medical Center.

I 0 The initial review of symptoms for patient DL included, but was not limited to, feeling lethargic,

11 altered mental status, flank pain, and brownish urine. The labs on admission indicated patient DL's

12 urine was positive for blood and bacteria. A blood specimen was collected on October 23rd at OI :54

13 a.m., to be cultured. Patient DL was admitted for presumed "bacteremia and sepsis."

14 21. On or about October 23, 2012, patient DL was seen by Respondent in the Intensive Care

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Unit (ICU) as part of an infectious disease consultation. Respondent's Consultation Report noted,

among other things, that patient DL had "a history of many chronic medical problems including

cachexia and Parkinson's disease" and, at the time of the consultation visit, was "ill-appearing," "not

aware ofhis surroundings" and was "awake, but nonverbal." The Consultation Report further noted

patient DL "has been discovered to have methicillin-resistant Staph aureus in the blood."

Respondent's impression was, among other things, that patient DL had methicillin-resistant

Staphylococcus Aureus (MRSA) urosepsis with MRSA bacterium and "[r]ight sided pleural effusion,

possibly secondary to MRSA." In actuality, the blood culture of the specimen collected earlier in the

morning at I :54 a.m. did no~ reveal the presence of MRSA but instead two different strains of

coagulase-negative Staphylococcus: specifically, Staphylococcus hominis and Staphylococcus

epidermi, which are typically the result of skin contamination of the blood culture bottle, not true

bacteremia. 5 Respondent recommended intravenous Vancomycin (antibiotic used to treat bacterial

5 The Microbiology Report indicates that a second blood specimen was collected on October 24, 2009, at 4:07a.m. which was cultured and had no growth after 5 days.

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Accusation

infections) and reculturing the patient with a note that "this patient is likely septic." The Consultation

2 Report further indicated that patient DL was "cachectic, which renders him further

3 immunocompromised f and] [h]e will likely require a long course of intravenous antibiotic therapy to

4 address the septic process."

5 22. On or about October 24, 2012, patient DL had a follow up visit with Respondent while in

6 the Eisenhower Medical Center ICU. Among other things, Respondent noted in his handwritten

7 Progress Report, that patient DL was doing "much better," he was "aware" and "interactive." Patient

8 DL was noted to be positive for "staph in blood" and "MRSA in urine" and there was a notation of

9 "staph sepsis." The plan was to continue with the intravenous (IV) Vancomycin and Zosyn (a

10 combination antibiotic).

11 23. On or about October 29, 2012, patient DL had a follow up visit with patient DL at

12 Eisenhower Medical Center. Respondent's handwritten Progress Report for this visit states, among

13 other things, that patient DL "appear[ed] to be improving" and he was "more alert and interactive."

14 The "MRSA Urosepsis" was noted to be "much improved on Zosyn [and] Vancomycin."

15 Respondent's plan was probable discharge to home or a skilled nursing facility later in the week and

16 to "continue on IV Vancomycin thru Nov. 6th 2012."6

17 24. On or about October 31, 2012, patient DL was discharged from Eisenhower Medical

18 Center. The Discharge Summary Report, prepared by Dr. NC, patient DL's primary care physician,

19 listed the discharge diagnoses as urosepsis, bacterial pneumonia, malnutrition and Parkinson's

20 disease. The Discharge Summary Report described the reason for hospital stay and hospital course as

21 follows:

22 "REASON FOR STAY:[~]: This is an 83-year-old male, very well known to me, who presents with hypotension, tachycardia, and altered mental status, was found to have a

23 UTI and became bacteremic causing urosepsis and was also noted to have bilateral

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infiltrates bilaterally.

"HOSPITAL COURSE: [~] Initially, he was admitted to the ICU, and was under the care of me and Dr. [T] and Dr. Somera. He was started on Vanco and Zosyn IV for his urosepis and bilateral pneumonia. Thoracentesis was done on his infiltrates. It was negative for any acute malignancy. There is some white blood cells there in the urine.

6 On or about November 5, 2012, the IV antiobiotic therapy was extended until November 8,

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Accusation

His repeat urine culture and blood cultures [were] negative, but in the initial, 1 did grow out MRSA in both the urine and the blood. He responded well to treatment on IV vancomycin and Zosyn. It was also thought that for his severe malnutrition, a PEG tube

2 to be placed to start him on some additional tube feeds. He does swallow appropriately on dysphagia diet. PEG started on Pulmicort and then switch over to Jevity with bolus

3 feeds, which was very well tolerated for patient."

4 The future treatment plan included, among other things, follow up with his physicians,

5 including Respondent, continue on the IV vancomycin antibiotic therapy at 1250 mg daily until

6 November 6, 2012, for the diagnosis ofMRSA urosepsis with MRSA bacterium (though, in fact, the

7 patient did not have any MRSA bacteremia); bolus tube feeding every 6 hours to address

8 malnutrition; and visiting nurses and home physical therapy to assist with Respondent's recovery.

9 25. On or about November 7, 2012, patient DL's caretaker called Respondent's office to

10 report patient DL was bedbound, "failing," and could not be placed in a wheelchair to attend a

11 previously scheduled appointment with Respondent set for the next day. Respondent's office

12 manager reportedly informed the caretaker that Respondent's office could not handle a gurney due to

13 space limitations and therefore recommended it would be more appropriate to call 911 if the patient

14 was decompensating.

15 26. On or about November 9, 2012, patient DL was readmitted to Eisenhower Medical

16 Center. The patient was responsive, not feeling well, noted to have increasing shortness of breath, a

17 chest x-ray indicated right-sided pleural effusion which had increased in size since the last hospital

18 admission and an elevated white blood cell count. Respondent saw the patient for an infectious

19 disease consultation. The reason for the consultation was"[ e ]valuation of a possible recurrent MRSA

20 infection." A broad spectrum antiobiotic therapy was initiated. The patient's condition deteriorated

21 with increasing hypoxia and shock developing. Due to the patient's overall poor prognosis, the

22 patient was put on comfort care measures, started on a morphine IV drip and passed away on

23 November I 0, 2012.

24 27. Respondent committed repeated negligent acts in the care and treatment of patient DL,

25 which included, but was not limited to, the following:

26 (a) Respondent improperly diagnosed and improperly managed patient DL's

2 7 presumed pulmonary mycrobacterium avium complex (MAC) disease when he, among

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Accusation

other things, failed to obtain microbiologic confirmation ofhis diagnosis of pulmonary

2 MAC infection and proceeded to treat without proper microbiologic confirmation;

3 (b) Respondent prescribed an inappropriately high dosage of ethambutol to

4 treat patient DL's presumed MAC disease;

5 (c) Respondent failed to obtain timely radiologic studies of patient DL's lungs

6 at the time of patient DL' s initial evaluation of September 16, 2011, and during patient

7 DL's subsequent follow up visits for the diagnosis of Staphylococcus aureus

8 pneumonia; and

9 (d) Respondent repeatedly failed to maintain adequate and accurate medical

10 records during the course of his outpatient visits with patient DL, which included, but

11 was not limited to, failing to provide full and complete documentation of appropriate

12 physical examination, patient temperature, laboratory testing, clear and comprehensive

13 impression and/or treatment plans and/or other necessary details concerning

14 Respondent's outpatient visits with patient DL.

15 SECOND CAUSE FOR DISCIPLINE

16 (Incompetence)

17 28. Respondent has further subjected his Physician's and Surgeon's Certificate Number

18 G77068 to disciplinary action under sections 2227 and 2234, as defined by section 2234, subdivision

19 (d), of the Code, in that he has demonstrated incompetence in the care and treatment of patient DL,

20 as more particularly alleged hereinafter:

21 (a) Paragraphs 7 through 27, above, are hereby incorporated by reference and

22 realleged as if fully set forth herein;

23 (b) Respondent exhibited a lack of knowledge when he misinterpreted patient

24 DL's blood culture from a blood specimin collected on October 23,2012, at 1:54 a.m.,

25 as containing methicillin-resistant Staphylococcus Aureus (MRSA) bacteremia, when it

26 did not.

27 II! I

28 Ill I

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Accusation

THIRD CAUSE FOR DISCIPLINE

2 (Failure to Maintain Adequate and Accurate Records)

3 29. Respondent has further subjected his Physician's and Surgeon's Certificate Number

4 G77068 to disciplinary action under sections 2227 and 2234, as defined by section 2266, of the Code,

5 in that he failed to maintain adequate and/or accurate medical records for patient DL, as more

6 particularly alleged hereinafter:

7 (a) Paragraphs 7 through 27, above, are hereby incorporated by reference

8 and realleged as if fully set forth herein; and

9 (b) Respondent repeatedly failed to maintain adequate and accurate medical

10 records during the course of his outpatient visits with patient DL, which included, but

11 was not limited to, failing to provide full and complete documentation of appropriate

12 physical examination, patient temperature, laboratory testing, clear and comprehensive

13 impression and/or treatment plans and/or other necessary details concerning

14 Respondent's outpatient visits with patient DL.

15 Ill!

16 II II

17 Ill/

18 Ill!

19 Ill!

20 Ill!

21 Ill!

22 Ill I

23 Ill I

24 Ill I

25 Ill I

26 Ill I

27 Ill!

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Accusation

PRAYER

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

" that following the hearing, the Medical Board of California issue a decision: .)

4 1. Revoking or suspending Physician's and Surgeon's Certificate Number G77068, issued to

5 Respondent Michael Somero, M.D.;

6 2. Revoking, suspending or denying approval of Respondent Michael Somcro, M.D.'s,

7 authority to supervise physician's assistants, pursuant to section 3527 of the Code;

8 3. Ordering Respondem Michael Somero, M.D., to pay the Medical Board of California the

9 costs of probation monitoring~ and

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

12 DATED: August 13, 2014

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SD:2014707376 70916419.doc

Executive Dir ctor Medical Board ofCalifornia Department of Consumer Affairs State of California Complainant

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Accusation I