pablo... · certificate no. g 47561 respondent ) ) ) ) ) ) ) ) ) ) mbc no. 8002014002370 order...
TRANSCRIPT
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
In the Matter of the Accusation and Petition ) To Revoke Probation Against: )
PABLO GARZA CORTINA, M.D. Physician's and Surgeon's Certificate No. G47561
Respondent.
) ) ) ) ) ) )
___________________________ )
Case No. 8002014002370
OAH No. 2015061154
DENIAL BY OPERATION OF LAW PETITION FOR RECONSIDERATION
No action having been taken on the petition for reconsideration, filed by Scott J. Harris, Esq., on behalf of Pablo Garza Cortina, M.D., and the time for action having expired at 5 p.m. on July 18, 2016, the petition is deemed denied by operation of law.
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
In the Matter of the Accusation and Petition to Revoke Probation Against:
PABLO GARZA CORTINA, M.D.
Physician's & Surgeon's Certificate No. G 47561
Respondent
) )
) ) ) ) ) ) ) )
MBC No. 8002014002370
ORDER GRANTING STAY
(Gov't Code Section 11521)
Scott J. Harris, Esq. on behalf of respondent, Pablo Garza Cortina, M.D., has filed a Petition for Reconsideration of the Decision in this matter with an effective date of July 8, 2016.
Execution is stayed until July 18, 2016.
This stay is granted solely for the purpose of allowing the Board time to review and consider the Petition for Reconsideration.
DATED: July 1, 2016
Kimberly Kir meyer Executive Director Medical Board of California
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
In the Matter of the Accusation and Petition to Revoke Probation Against:
PABLO GARZA CORTINA, M.D.
Physician's and Surgeon's Certificate No. G47561
Respondent
) ) ) ) ) ) ) ) ) )
DECISION
Case No. 8002014002370
OAH No. 2015061154
The attached Proposed Decision 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 July 8, 2016.
IT IS SO ORDERED June 8, 2016.
MEDICAL BOARD OF CALIFORNIA
~~lA]!~ By: ______ ~~----'--~----~·--~-----
Jamie W · Panel A
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
In the Matter of the Accusation and Petition to Revoke Probation of:
PABLO GARZA CORTINA M.D.,
Physician's and Surgeon's Certificate No. G 47561
Respondent.
Case No. 800-2014-002370
OAH No. 2015061154
PROPOSED DECISION
Administrative Law Judge Jill Schlichtmann, State of California, Office of Administrative Hearings, heard this matter on February 29, March 1 and March 2. 2016. in Oakland, California.
Deputy Attorney General Lawrence A. Mercer represented complainant Kimberly Kirchmeyer, Executive Director ofthe Medical Board of California, Department of Consumer Aff~1irs.
Scott J. Harris. Attorney at Law. represented respondent Pablo Garza Cortina, M.D., who was present throughout the administrative hearing.
Submission of the matter was deferred pending receipt of closing briefs. Complainant's closing and reply briefs were timely received and marked for identification as Exhibits 12 and 13. Respondent's closing briefwas timely received and marked for identification as Exhibit L.
The matter was deemed submitted for decision on April 15, 2016.
FACTUAL FINDINGS
Introduction
1. Complainant Kimberly Kirchmeyer is the Executive Director of the Medical Board of California (Board), Department of Consumer Ai1airs. She brought the accusation and petition to revoke probation solely in her otlicial capacity.
2. On June 14, 1982, the Board issued Physician's and Surgeon's Certificate No. G 47561 to Pablo Garza Cortina, M.D. (respondent).
3. Respondent graduated from Stanford Medical School in 1980. He completed his internship in internal medicine in 1981 at Baylor College of Medicine in Houston, Texas, and his residency in obstetrics and gynecology at Stanford in 1984. Respondent was board certified in obstetrics and gynecology from 1986 to 2010. Due to his disciplinary history (detailed below), he is no longer board certified. Respondent practiced for four years in the Air Force and was discharged as a major. Except for brief periods in San Diego (1988-1989) and Pennsylvania (1997 -1998), respondent has practiced in Northern California, primarily in Ukiah.
Respondent has practiced primarily as an obstetrician/gynecologist in solo practice. In 2003, after studying under a plastic surgeon, he added plastic surgery to his practice.
Disciplinwy History
4. On February 4, 1998, an accusation was filed alleging that respondent had departed from the standard of practice in his surgical care of two patients. In a decision efiective August 24, 1998, the Board adopted a Stipulated Settlement consisting of a revocation, stayed, two years probation with terms and conditions including an education course, ethics course and practice monitoring. In the Stipulated Settlement, respondent admitted that with regard to one patient, he failed to correctly identify the left fallopian tube, which was neither transected nor ligated, resulting in the patient becoming pregnant again. With regard to the second patient, respondent admitted that he committed gross negligence in failing to locate and remove an ovarian remnant during surgery.
5. On July 15, 1999, an accusation and petition to revoke respondent's probation was filed, based on respondent's 1997 felony conviction for filing a false tax return and failing to report the conviction to the Board. Respondent was convicted on June 2, 1998, was sentenced to serve one year in prison and ordered to pay restitution and fines totaling $289,997. Respondent engaged in dishonest acts in making statements to the Board regarding his whereabouts and incarceration. In a Decision effective December 17, 1999, the Board revoked respondent's probation; the probation was reinstated for a period of seven years with terms and conditions including an education course, ethics course, clinical training
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program, psychiatric examination. practice monitoring and payment of his criminal restitution and fines within five years.
6. In 2004, respondent petitioned for early termination of probation. In a Decision effective February 28, 2005, the Board granted the petition. The Decision contains a finding that respondent testified that prior to his disciplinaty action, his "focus was not centered on medicine," but that he had since "focused on medicine, competency ... with a zeal that is commendable." Respondent had not paid the criminal restitution and fines; those license probation conditions were vacated by the Board.
7. On februmy 10. 2009, an accusation was filed alleging that respondent departed from the standard of practice in his treatment of three patients. In a Decision effective June 9, 2010, the Board found that respondent had committed acts of gross negligence, repeated negligent acts, and failed to maintain adequate and accurate records. The Board revoked respondent's license; however, the revocation was stayed and his license was placed on probation for seven years, with terms and conditions including a medical record course and a practice monitor. Another of the terms of respondent's probation required him to attend the University of California. San Diego (UCSD) Physician Assessment and Clinical Education (PACE) Program. He participated in Phase I of the PACE Assessment Program on September 7 and 8, 2010; he attended Phase II ofthc Assessment Program September 16 to 23, 2011.
8. On August 8, 2013, an accusation and petition to revoke respondent's probation was tiled. alleging that respondent had engaged in unprofessional conduct and gross i1egligencc in perfori11ing elective cc1si11etic-stti·get=-y in hls<)fticesL11·gical :t-acCiity, which he knew was not accredited, and after he had assured the Board he would stop performing surgery in the unaccredited facility. The Board's expert opined that respondent had put patients' lives at risk by administering drugs that should only be given in an accredited setting. and that respondent had acted outside the scope of his practice by administering intravenous sedation at his unaccredited ot1ice. In a Decision effective June 18, 2015, the Board f(mnd respondent had engaged in repeated negligent acts when he performed surgery without proper safety equipment and used a registered nurse to administer anesthesia in an unaccredited office. The Board revoked respondent's probation and added an additional two years of probation, consecutive to his seven year term. In addition, the Board added a probationary term ordering respondent not to perform any surgical procedures involving the administration of anesthesia in a non-accredited outpatient setting.
9. In addition to his disciplinary history, respondent has been sued for malpractice 15 times.
1 0. On January 3 0, 2014, the current accusation and petition to revoke respondent's probation was filed. Complainant herein alleges unprofessional conduct in the care respondent provided to two patients. Complainant alleges respondent's obstetrical care
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of Patient E.M. 1 was grossly negligent, repeatedly negligent and/or incompetent. Complainant alleges respondent's treatment of Patient W.C., for chronic pain, anxiety and insomnia, was grossly negligent, repeatedly negligent and/or incompetent.
Condition 7 of respondent's current probationary grant requires him to obey all laws governing the practice of medicine. Complainant alleges that respondent violated his probation by committing unprofessional conduct in delivering care to Patients E.M. and W.C.
Re,\pondent 's Treatment ofPatient E.M
11. On January 31, 2012, respondent first saw Patient E.M., who was 29 years old and in her 21st week of pregnancy. Respondent's medical record notes that Patient E.M. reported that she suffered from chronic sciatica and depression, and that she had been taking Oxycodone2 for the sciatica and prescription medication for depression. The chart documents a cursory but completely normal physical examination. No evaluation or assessment ofPatient E.M.'s complaint ofpain attributed to sciatica is documented, and there is no assessment of Patient E.M.'s complaint of depression. Respondent did not take a history of substance use or abuse, but documented that Patient E.M. was abusing drugs. Respondent concluded that Patient E.M. was abusing Oxycodone because of the amount of the drug she was ingesting daily.
12. Respondent was f~m1iliar with the physician who had been treating Patient E.M. 's chronic pain, John Williams, D.O., but failed to contact him or request a copy of her prior medical records. Respondent accepted Patient E.M.'s statement that Dr. Williams had refused to continue prescribing pain medications for her while she was pregnant.
13. Respondent did not obtain a CURES report3 before prescribing Oxycodone for Patient E.M. In July 2013, when respondent was interviewed by the Board, he was unaware
1 Patients are referred to by their initials to protect their privacy.
2 Oxycodone (OxyContin, Oxycodone IR) is an opioid analgesic. lt is a Schedule li controlled substance pursuant to Health and Safety Code section 11055 and narcotic and is a dangerous drug as defined in Business and Professions Code section 4022. Oxycodone can produce drug dependence and has the potential for abuse. Oxycodone is indicated for the management of moderate to severe pain, and is a commonly abused or diverted drug.
3 Pursuant to Health and Safety Code section 11165, the Department of Justice maintains the Controlled Substance Utilization Review and Evaluation System (CURES) for the electronic monitoring of, and internet access to information regarding, the prescribing and dispensing of Schedule II, Schedule Ill and Schedule IV controlled substances by all practitioners authorized to prescribe, order, administer, furnish, or dispense controlled substances. Licensed practitioners eligible to prescribe Schedule II, Schedule Ill and Schedule IV controlled substances may obtain the electronic history of controlled substances
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of the existence of CURES reports. Respondent generally relied on the local pharmacy to advise him if a patient was receiving duplicative prescriptions for controlled substances from other physicians. Nor did respondent order a toxicology screen to confirm Patient E.M. 's medication usage; normally he only orders toxicology screens during the pregnancy if he suspects methamphetamine or marijuana use.
14. On Januaty 31, 2012, respondent issued a prescription to Patient E.M. for 180 tablets of Oxycodone IR, 15 milligrams (mg). Respondent considered prescribing methadone or Suboxone4 instead, but rejected those, considering them to be just other opiate derivatives. He did not consider trying to wean Patient E.M. off of opiates because he felt that should have been done before she became pregnant, or earlier in her pregnancy.
15. Respondent saw Patient E.M. for prenatal visits on eight occasions in 2012. On February 13, March 12. April9 and May 7, 2012, he issued prescriptions for 180 tablets ofOxycodone IR. On May 21, June 4 and June 14,2012, respondent issued prescriptions for 90 tablets of Oxycodone IR. 15 mg.
16. On April2. 2012, Patient E.M. filled a prescription issued by respondent for 40 tablets ofPhenergan," 25 mg. There is no indication in the medical record of the reason for the prescription or that respondent considered the potential interaction betvveen Phenergan and Oxycoclone.
17. Respondent did not document a specific treatment plan for Patient E.M. 's complaint of chronic pain. After his initial examination, respondent failed to document any
·physical Cxaminatioli or findii1gs to support his clinic<:l:ldiagnosisand ongc)rl1g-prescripti~~;;[ Oxycodone. He did not discuss with Patient E.M. non-pharmacological measures to help control her pain or the use of long-acting opiates such as methadone or Suboxone. The first documented discussion between respondent and Patient E.M. regarding the risks inherent of high dose opiate treatment during pregnancy was on June 4, 2012, shortly before her June 19, 2012 delivery. Throughout the course ofthe pregnancy, respondent failed to document whether Patient E.M. 's chronic pain was improving. deteriorating or remaining the same. He
dispensed to an individual under his or her care. As of February 2013, the Department of Justice reported that the database contained over 100 million entries of controlled substances having been dispensed in California, and that in 2012, there were more than 800,000 requests for information. As of July 1, 2016, all California prescribers must register with the CURES program.
4 Suboxone (buprcnorphine) is a Schedule V controlled substance pursuant to Health and Safety Code section 11058. and a medication used to treat opioid dependency.
5 Phenergan is a trade name for promethazine, a drug containing codeine. It is a dangerous drug as defined in section 4022. and a Schedule V controlled substance pursuant to Health and Safety Code section 11058. It has antihistaminic, sedative, antimotionsickness. antiemetic, and anticholinergic effects.
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did not consult with a pain specialist and took no steps to determine whether Patient E.M. vvas obtaining opiates from other providers.
18. Patient E.M. was obtaining large amounts of opiate and benzodiazepine medication from Dr. Williams during the time respondent was treating and prescribing to her. She received the following medication while under respondent's care:
Date Drug No. of Tablets Prescriber
January 10 Endocd' 50 ( 10/325 mg) Williams January 11 Oxycodone 180 (15 mg) Williams January 31 Oxycodone 180 (15 mg) Respondent February 6 Oxycodone 90 (30 mg) Williams
Endocet 30 (10/325 mg) Williams February 12 Oxycodone 180(15mg) Respondent March 5 Oxycodone 180(15mg) Williams
OxyContin 30 (20 mg) Williams Lorazepam7 30 (lmg) Williams
March 12 Oxycodonc 180 (15 mg) Respondent March 29 Lorazepam 30 (1 mg) Williams
Oxycodone 90 (30 mg) Williams April 9 Oxycodone 180 (15 mg) Respondent April27 Oxycodone 180 ( 15 mg) Williams April28 OxyContin 30 (20 mg) Williams
Lorazepam 30 (30 mg) Williams May 7 Oxycodone 180 (15 mg) Respondent May 21 Oxycodone 90 (15 mg) Respondent May 25 OxyContin 30 (20 mg) Williams
Oxycodone 180 (15 mg) Williams Lorazepam 30 (1 mg) Williams
June 4 Oxycodone 180(15mg) Respondent June 14 Oxycodone 90 (15 mg) Respondent June 25 Oxycodone 180 (15 mg) Williams July 3 Lorazcpam 30 (1 mg) Williams
Oxycodone 90 ( 1 S mg) Respondent July 6 OxyContin 30 (20 mg) Williams
6 Endocet is a narcotic pain reliever that contains Oxycodone and acetaminophen.
7 Lorazepam, sold under the brand name 1\tivan among others, is a bcnzodiazepine medication and a Schedule IV controlled substance pursuant to Health and Safety Code section 11057.
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19. After his initial January 31, 2012 chart note stating that Patient E.M. was taking Oxycodone, there is no further mention in respondent's progress notes ofOxycodone until June 4. when respondent documented that Patient E.M.:
complains of severe back pain which was treated by her regular physician with oxycodone. [Patient] wants oxycodone rx. I caution pt. that she should take this med as sparingly as possible to avoid habituation of the fetus. Pt states she understands.
20. Respondent's June 14, 2012 chart note states:
Rx of oxycodone. I advise pt that she needs to cut back on her medication in order to avoid withdrawal symptoms of the newborn. This is something that I have brought up to the pt at every visit where she has received oxycodone Rx. The pt states that she is doing her best.
21. Respondent did not document a plan for the safe delivery and post-partum management of a baby born to an opiate-dependent mother. On June 19,2012, Patient E.M. delivered a baby who was opiate-dependent. suffered withdrawal and required treatment with morphine. On July 2. 2012. the Board received a complaint from a social worker. alleging that respondent had excessively and negligently prescribed Oxycodone to a pregnant patient.
Respondent's Testimon_v regarding his Treatment ofPatient EA1.
22. Respondent treats pregnant women who arc dependent on narcotics. His practice is to manage the chronic pain and pregnancy. Respondent assumes that the primary care physicians will transfer all of the patient's care to him during the period ofthe pregnancy. He usually confirms this with the referring physician. Respondent's testimony that it was Dr. Williams's normal practice to transfer all care to him was neither borne out by the evidence. nor corroborated by Dr. Williams.
Respondent bases the appropriate dose of pain medication on the patient's history of use. As the pregnancy progresses, the woman's back pain often increases requiring an increase in pain medication. Respondent states that he has a good feel for evaluating patients who are abusing or diverting controlled substances. He looks at their hygiene, the size of their pupils, their behavior, their skin, and whether they are slurring their speech.
23. Respondent registered with the CURES program after learning about it during his 20 !3 interview with the Board investigators; he has had some difficulty obtaining information due to the lack of funding for the program, but overall finds the CURES program very helpful.
24. Respondent recalls Patient E.M. She was taking large quantities of Oxycodone for her sciatica and had developed a high tolerance to the drug. He recalls that
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Patient E.M. told him that her primary care physician did not want to prescribe opiates to her during her pregnancy and he found no reason to doubt her. Respondent did not observe any objective findings to support the sciatica diagnosis when he examined her, which in his opinion was not unusual. Respondent agreed to care for Patient E.M. and decided the plan would be to continue her on pain medication in order to avoid withdrawal symptoms which could harm the fetus. Respondent did not consider switching her to a long-acting opiate, such as methadone, because there was no methadone clinic in town and he was concerned about the patient going into withdrawal. Respondent did not refer Patient E.M. to a pain specialist because there was only one pain specialist in Ukiah at the time and he did not accept pregnant patients. Respondent did not explain why he did not consult with a pain management specialist while treating Patient E. M.
25. Respondent asserts that at each visit he recommended that Patient E.M. cut back on her opiate use; however, he concedes that he did not document a discussion to that effect until the June 4, 2012 visit. Respondent normally sends a patient's records to the hospital on an ongoing basis beginning at 24 weeks. He generally notifies the pediatric group about a patient's narcotic dependence when the patient arrives at the hospital to deliver the baby. In this case, he communicated with the pediatric group when Patient E.M. was admitted to the hospital.
26. Respondent prescribed Zofran for Patient E. M.' s nausea, but the insurance plan did not cover it. Respondent did not contest the denial with MediCal because obtaining approval can take weeks. He therefore recommended Phenergan, which is an alternative. Respondent states that he considered the potential contraindication with Oxycodone, but in his clinical judgment decided that the benefit outweighed the risk. Respondent did not believe it was necessary to discuss this decision with Patient E.M. because he considered the risk to be minimal.
E:..pert Opinions ofDr. F'nrnklin regarding Patient E.lv!
27. Robert Franklin, M.D., testified as an expert witness on behalf of complainant. Dr. Franklin graduated from George Washington University School of Medicine in 1990. He attended the family practice residency program at University of California, San Francisco (UCSF) from 1990 to 1993. Dr. Franklin is board certified in family medicine. He has worked as an emergency department physician at Kaiser Hospital in South San Francisco from 1997 to the present. Dr. Franklin has taught at UCSF since 1995; he was promoted to associate clinical professor in 2007.
Dr. Franklin has been on staff as a t~1mily physician at the Southeast Health Center in San Francisco since 1995. The Southeast Health Center provides care to an underserved community with limited resources. In this position, he provides prenatal care and treats patients who are opioid-dependent, although he does not treat opioid dependence. Dr. Franklin is familiar with the standard of practice for prescribing narcotics and benzodiazepines. In addition, he has delivered 300 babies during his h1mily practice
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residency at UCSF. Dr. Franklin regularly delivers prenatal care to patients at the Southeast Health Center.
28. Dr. Franklin gave credit to respondent for providing obstetrical care to an opiate-dependent woman. Respondent was concerned about her wellbeing and wanted her to receive care that she could and would access, instead of referring her to a tertiary care center. However, in taking on that care, respondent took on the obligation to provide care at the level usually provided by tertiary care centers. Respondent was obligated to provide comprehensive pain management, integrated into prenatal care. Dr. Franklin found that respondent failed to meet that obligation and proceeded to enter into a series of departures from the standard of care.
29. Dr. Franklin explained that prior to prescribing a controlled substance for pain, it is the standard of care to perform a comprehensive medical history and physical examination. including an assessment of the pain, physical and psychological function, a substance abuse history, history of prior pain treatment, an assessment of underlying or coexisting diseases or conditions. and documentation of a recognized medical indication for the use of a controlled substance. Pain management in the prenatal patient must adhere to all the clements of the standard of practice for non-pregnant patients, and must take into account the unique risks and benefits of pain management in pregnant patients.
30. Dr. Franklin found that respondent's initial history and physical examination was cursory. The chart did not document a detailed history. or a detailed assessment of the risk of drug abuse. For a patient with severe sciatica. one would not expect a normal physical examination, but that is what Was docT1mented ii1 Patiei1t E.M.'s chart. Dr. Fi:anklinopined that respondent's failure to document a thorough history, with focus on the critical areas of opwte abuse and dependence. social support system. risk for depression and prior treatment history, or to document a thorough examination \vith attention to sciatica. constituted an extreme departure from the standard of care.
31. Dr. Franklin explained that it is the standard of practice that a treatment plan with specific, objective. goals be documented in a patient's chart. The plan should include specific details of a plan of action in the face of either future improvement or deterioration. The plan should not be limited to pharmacological intervention.
Respondent had a treatment plan for a low risk pregnancy; however, the pregnancy was complicated by Patient E.M.'s chronic pain and opiate use. It is the standard ofpractice to document periodic reviews of the course of pain treatment, paying particular attention to the improvement, stability, or deterioration ofthe patient's condition. It is the standard of practice when treating chronic pain with opioid medications to pay rigorous attention to medical record keeping. It is the standard of practice that informed consent be obtained and documented prior to beginning opioid treatment for chronic pain.
Dr. franklin was critical of respondent's failure to consider non-pharmacological measures to control pain; there was not a single note indicating whether the pain was
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improving, deteriorating, or remaining the same; and, there was not a single note indicating why a given quantity of opiate agent was prescribed. Dr. Franklin considered the chart documentation to be sparse for a normal obstetric case, and utterly inadequate for the complicated and risky case at hand. The discussion of the risks and benefits should be documented in respondent's chatiing. There was no formal discussion of the risks and benefits of such treatment in a pregnant woman; and, there was no informed consent documented.
Dr. Franklin opined that respondent's failure to explicitly recognize that he was prescribing high-risk obstetric care and to document a high-risk management plan, or to document a specific pain management plan with a detailed discussion, and the patient's response to treatment at each visit, constituted extreme departures from the standard of care.
32. Respondent made no attempt to contact Patient E.M.'s primary care physician concerning his treatment. Although CURES reports were new in 2012, respondent should have called the pharmacy, contacted her primary care physician or made a good faith effort to obtain Patient E.M. 's prescription drug history. In Dr. Franklin's opinion, the failure to obtain prior medical records constituted an extreme departure from the standard of care. Moreover, Dr. Franklin considers it an extreme departure from the standard of practice to have been unaware ofthe CURES program in 2012; physicians licensed in California must be aware ofinfonnation transmitted to them by the Board's newsletter. Dr. Franklin opined that it was unreasonable for respondent to rely on a pharmacy contacting him to alert him to· duplicative prescriptions.
33. Dr. Franklin explained that it is the standard of practice to consider referring the patient as necessary for additional evaluation and treatment, and for the obstetrician prescribing pain medication to document coordination of care among the various physicians involved in the patient's care. Respondent admitted in his interview that he tried to avoid treating patients with chronic pain, and he was unaware of the Board's Guidelines for Prescribing Controlled Substances for Pain.
The Board adopted Guidelines for Prescribing Controlled Substances for Pain (Guidelines) in 1994. The Guidelines require that a medical history and physical examination be accomplished prior to prescribing controlled substances for pain. The physician should assess the pain, physical and psychological function, substance abuse history, history of prior pain treatment, an assessment of underlying or coexisting diseases or conditions, and documentation of the presence of medical indication for the use of a controlled substance. The Guidelines provide that a treatment plan should state objectives by which the treatment plan can be evaluated, and indicate if further diagnostic evaluations or treatments are planned. The Guidelines require the physician to discuss the risks and benefits of the use of controlled substances and other treatment modalities with the patient. The course of pain treatment should be reviewed periodically. The physician should consider referring the patient for additional evaluation and treatment with a pain medicine specialist, and should pay attention to patients who are at risk for abuse. The Guidelines provide that the physician should keep accurate and complete records of the patient's history,
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examination, treatment plan objectives. informed consent, and rationale for changes to the plan or medications.
Dr. Franklin was critical of respondent's failure to even attempt a one-time consultation from a pain specialist, obstetrician with extensive experience treating similar patients, or psychologist. If there were no pain specialists in the area, respondent could have obtained a telephone consultation which is ofTered as a ti-ee service by tertiary centers, such as UCSF or Stanford.
Respondent acknowledged that the patient abused drugs, but did not identify which drugs, for how long or when it occurred. In Dr. Franklin's opinion, respondent did not have sufticient training, knowledge or experience to manage a complex pain patient, let alone a complex pain patient who is pregnant.
Dr. Franklin opined that respondent's failure to document a specific pain management plan. and his decision to treat an opiate dependent pregnant woman while acknowledging ignorance of the Board's written Guidelines on opiate treatment of chronic pain and being insufficiently trained and experienced, \Vithout even one-time consultations with appropriate specialists. constituted extreme departures from the standard of practice.
34. According to Dr. Franklin, the standard of practice requires that a physician recognize that prescribing opiate medications for pain is a potentially dangerous practice that requires the highest attention to detail. In the case of a pregnant patient. it is the standard of practice for the treating physician to consider the impact of prescribed therapies on the developing fetus and to-111ake m1d doCL!ment -specif£pEms for post-partum cal·eofthe newborn. especially when the treatment regimen includes the use of opiate medications. In his opinion. the plan should be put in place prior to the delivery date. Opiate-dependent neonates are at risk for a variety of serious complications, requiring clear communication with the pediatrician prior to the birth. Dr. Franklin opined that it constituted an extreme departure from the standard of practice and was potentially life-threatening for respondent to fail to make and document detailed arrangements for the safe delivery and post-partum management of an opiate dependent neonate.
35. Dr. Franklin was critical of respondent's decision to usc only short-acting opiates without sut1icient documentation in the medical record. Long-acting opiates are used to treat pain and addiction. Dr. Franklin considers short-acting opiates to cause more risk to the fetus. Respondent's explanation of why he did not consider long-acting opiates indicated to Dr. Franklin that he had lacked understanding of the principles of the decision.
Dr. Franklin opined that the failure to understand the fundamental difference between the usc of short-acting and long-acting opiates in an opiate-dependent pregnant patient represented a profound, dangerous and even potentially lethal lack of knowledge.
36. Dr. Franklin explained that the standard of practice in California is to exercise due caution and good clinical judgment when prescribing potentially dangerous medications,
II
particularly when given in combination. It is the standard of practice for physicians to be aware of how the medications interact, any contraindications for medications prescribed, and to document the reason for any otT-label use of medication. The standard of practice requires physicians to consider the risk of intentional and unintentional overdose when prescribing opioid medications.
Dr. Franklin explained that Phenergan can be dangerous and is commonly abused. In pregnant, opiate-dependent patients, Phenergan is contraindicated and can have catastrophic consequences. Dr. Franklin opined that respondent's decision to prescribe Phenergan to Patient E.M. without closely following Patient E.M. and documenting that monitoring, while she used both medications, constituted an extreme departure from the standard of practice; while failing to document an indication for Phenergan in the chart constituted a simple departure.
E-..:pert Opinions ofDr. Stohl regarding Respondent's Treatment ofPatienl E.A1
37. Hindi Stohl, M.D., testified as an expert witness on behalf of respondent. Dr. Stohl graduated from the University of Pennsylvania School of Medicine in 2006. She completed her internship and residency at Johns Hopkins Medical Institutions in the Department of Gynecology and Obstetrics. Dr. Stohl completed a maternal fetal medicine fellowship at the University of Southern California and the Los Angeles County Medical Center in 2013. Dr. Stohl has attended Southwestern Law School where she plans to receive her juris doctor degree in May 2016. Dr. Stohl is an assistant professor at the David Geffen School of Medicine at the University of California, Los Angeles, in the Department of Obstetrics and Gynecology.
38. Dr. Stohl is familiar with the Board's Guidelines for Prescribing Controlled Substances for Pain. She considers them informative, but not mandatory.
39. In Dr. Stohl's opinion, respondent complied with the standard of care by providing opioid medication to treat Patient E.M. 's chronic pain during her pregnancy. There are two options for treating a pregnant woman who is opioid-dependent. One is to taper the medication over the course of the pregnancy; the second is to continue to prescribe opioids in a safe manner throughout the course of the pregnancy. Dr. Stohl opined that the rationale for opioid-assisted therapy during pregnancy is to prevent complications of illicit opioid use, to avoid the adverse pregnancy etfects associated with narcotic withdrawal, encourage consistent prenatal care and drug treatment, and prevent a patient from resorting to criminal activity. Ira woman goes through opioid withdrawal while pregnant, there is a risk of preterm labor or stillbirth. The American College of Obstetrics and Gynecology currently recommends maintaining the patient on opioids because there is lower risk. If the patient is taking Oxycodone, \Vhether to transfer her to methadone is a question of clinical judgment. The lack of a methadone clinic in the community is a h1ctor to consider. Dr. Stohl did not consider Patient E.M. 's pregnancy to be high risk.
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40. Dr. Stohl found the overall prenatal care provided by respondent to Patient E.M. to be within the standard of care; however, in her report, she found a couple of simple departures. First, Dr. Stohl opined that respondent was required to perform a physical examination that was comprehensive enough to ascertain the source and extent of the patient's pain. She noted that it was difficult to assess from respondent's notes or from his interview whether his examination was sufficiently comprehensive. At hearing, however, Dr. Stohl changed her opinion; after learning that respondent had testified that Patient E.M. brought her Oxycodone prescription bottle to the appointment, Dr. Stohl concluded that the examination was comprehensive enough. The t~1ct that respondent did not document seeing the prescription bottle does not affect Dr. Stohl's opinion; she rejects the notion that if it isn't documented. it did not happen.
Second, Dr. Stohl noted in her report that ideally a pregnant woman with a chronic pain condition should be provided care through a multi-disciplinary team, and that where resources are limited, it is important for the physician to confirm that the patient is not concomitantly receiving pain management services elsewhere.
In her report Dr. Stohl opined that respondent should have contacted the physician who had been prescribing Oxycodone to Patient E.M. before her pregnancy. Dr. Stohl noted that communication between providers regarding prescription of opioid treatment is necessary to obtain pain control while mitigating the risks of overtreatment. However, at hearing, Dr. Stohl opined that the standard of care did not require respondent to contact Patient E.M. 's primary care physician because respondent stated that he was f~uniliar with Dr. Williams and believed that Dr. Williams intended to transfer all care to respondent. Dr. Stohl learned of this understandliig on the mornii1g ofthe-11earingTI~In respcrndei1t'scotlnsel. She concedes that the understanding was not documented in the chart. Dr. Stohl did not explain why she relied on this statement inasmuch as it is contradicted by Dr. Williams's actions in this case.
41. Dr. Stohl opined that although more detailed documentation of respondent's treatment plan and discussions of the risks of opioid medications with the patient would have been helpfuL he met the basic clements of documentation. Dr. Stohl opined that while documentation of why respondent did not consult a pain management specialist and why he chose to continue her on Oxycodone would have been helpful, it was not imperative. In Dr. Stohl's opinion, the standard of care required respondent to consider consultative services but does not specifically require him to document his decision.
42. Dr. Stohl noted that respondent's prenatal care notes may have been shorter than notes commonly written by primary care providers; however, she found them consistent with many obstetric providers.
43. Dr. Stohl agrees that the standard of care requires an obstetrician to be in close communication with the pediatrician when neonatal withdrawal syndrome is an expected
13
complication; she does not believe that the communication must occur prenatally and found that respondent communicated adequately with the pediatrician.
44. In Dr. Stohl's opinion, respondent's documentation in June 2012 that he had previously advised Patient E.M. to cut back on her opioid use met the standard of care for obtaining informed consent.
Ecper! Opinions olDr. Wilc05;ky regarding Respondent's Treatment ofPatient E.Jvf
45. Bernard Wilcosky, M.D., testified as an expert witness on behalf of respondent. Dr. Wilcosky graduated from Duke Medical School in 1981 and has been licensed in California since 1982. He completed his internship and a residency in anesthesia and operative service at Letterman Army Hospital Medical Center in San Francisco in 1984. Dr. Wilcosky completed a fellowship in cardiothoracic anesthesia at Letterman Army Medical Center in 1985. Dr. Wilcosky is board certified in anesthesiology with certification in pain medicine. He is a stail anesthesiologist at Sequoia Hospital, and the Medical Director at Pain Treatment Services, both located in Redwood City, California. Dr. Wilcosky has treated chronic pain patients for approximately 30 years.
Dr. Wilcosky is currently the subject of disciplinary proceedings before the Board concerning his pain management practices.
46. Dr. Wilcosky is familiar with the Board's Guidelines. In his opinion, the Guidelines inform the standard of care and apply statewide. Dr. Wilcosky is aware that in California physicians should not treat patients who are addicted to narcotics without proper qualifications; addiction treatment should be provided by a qualified specialist. In Dr. Wilcosky's opinion, obstetricians do not generally have the background and training to treat chemical dependency.
47. Dr. Wilcosky noted that respondent assumed the care of Patient E.M. under less than favorable conditions; she was halfway through her pregnancy, and resided in a community with a dearth of treatment alternatives, including pain management and addiction specialists. The amount of Oxycodone that Patient E.M. was taking indicated a level of dependency. Dr. Wilcosky opined that respondent acted within the standard of care in choosing to maintain the patient on stable doses of opioid medication to prevent withdrawal during pregnancy. In Dr. Wilcosky's opinion, respondent was entitled to accept the patient's complaint of pain to initiate treatment, especially in a situation where the patient has back pain which will likely be aggravated during the pregnancy.
48. Dr. Wilcosky acknowledges that obtaining a patient's prior medical records and having a conversation with the primary care physician is useful. However, he considered respondent's failure to obtain records of her pain treatment or contact the primary care physician directly to be understandable. The Guidelines require physicians to accept and treat a patient's pain complaints unless there is a reason to suspect otherwise. In Dr. Wilcosky's opinion, respondent was not treating Patient E.M. 's chronic pain, but managing it
14
during the pregnancy. He noted that respondent declined to continue prescribing opioids after the pregnancy.
49. Dr. Wilcosky found that respondent appropriately advised Patient E.M. ofthe risks ofthe plan.
50. Dr. Wilcosky opined that because respondent practiced in a small town. he was entitled to rely on pharmacies to inform him of duplicative opioid prescriptions. The CURES program was relatively new in 2012 and was not well-established or accurate at the time.
51. With regard to respondent's chart documentation, Dr. Wilcosky opined that any administrative deficiency in documentation must be assessed through a prism of a specific time-limited treatment course for a primary purpose other than pain treatment itself. In Dr. Wilcosky's opinion, the medical records fell within the spectrum ofwhat would be expected in 2012.
52. Dr. Wilcosky considers Phenergan a reasonable substitute for Zofran. He agrees that there are potential complications when taken with high doses of opiates, including and increased chance of depression. but he considered this to be an unlikely occurrence.
53. All in all. Dr. Wilcosky considered respondent to have met the standard of care with regard to Patient E.M.'s treatment as it applied in 2012.
Ultimate Conclzrsions rcgclrding Re.\j)(mdcrit 's Tredt,-i7ei1t ofPc7iient E.Af-
54. The opinions of Dr. Franklin were more persuasive than the opinions of Drs. Stohl and Wilcosky. Dr. Franklin's opinions were consistent with the Board's Guidelines, which t-dlect the standard of care. :Had Dr. Cortina followed the Guidelines, he would have obtained important information about Patient E.M. from her primary care physician. and he would have more carefully planned and monitored her treatment. Dr. Stohl changed several of her opinions at hearing which lessened her credibility. Moreover, the opinions of Drs. Stohl and Wilcosky were based in part on respondent's statement that he did not communicate with Dr. Williams or make an effort to obtain his records because of an understanding that is not documented, and an understanding that Dr. Williams did not share.
55. Whether an opiate-dependent. pregnant woman should be continued on opiate medication throughout the pregnancy is not the issue here; the issue is whether respondent met the standard of practice in providing opiates to a pregnant woman. The evidence established that respondent's care of Patient E.M. failed in many important respects. These f~1ilures constituted extreme departures from the standard of care as set forth in factual findings 28 through 37.
15
Patient TV C.
56. Respondent first saw Patient W.C., a 38-year-old man, on May 3, 2012. Patient W.C. sought renewal of a recommendation for the usc of medical marijuana that had previously been issued by another practitioner. Respondent does not normally see patients for pain unless they are pregnant; he considered this case an anomaly.
57. Patient W.C. complained of chronic knee and lower extremity pain from old accidents. Patient W.C. stated that he was taking several medications, but respondent's record does not identify the prescriber. Respondent noted physical findings suggestive of past fractures, scarring, leg tenderness on examination, and decreased range of motion of the left knee. Respondent's assessment was chronic and persistent musculoskeletal pain, and he documented a discussion ofthe use of marijuana for chronic pain. Respondent issued a recommendation for medical marijuana use.
58. Respondent's note for the May 3, 2012 visit does not document that he prescribed medications other than marijuana, but respondent issued prescriptions for Percocet8 (120 tablets) and Ambien9 (60 tablets). No medical indication was noted in the chart, and no treatment plan was noted. No past medical records were obtained, and respondent made no attempt to determine whether Patient W.C. was obtaining prescriptions from other providers.
59. Respondent next saw Patient W.C. on September 6, 2012. Respondent noted that Patient W.C. reported a history of anxiety, for which he had taken a friend's Xanax. 10
8 Percocet is a trade name for a combination of oxycodone hydrochloride and acetaminophen. It is a dangerous drug as defined in Business and Professions Code section 4022, and a Schedule II controlled substance pursuant to Health and Safety Code section 11055.
9 Ambien is a trade name 1()r zolpidem tartrate. It is a dangerous drug as defined in Business and Professions Code section 4022, and a Schedule IV controlled substance pursuant to Health and Safety Code section 11057. It is indicated for the short-term treatment of insomnia, and is a central nervous system depressant which should be used cmitiously in combination with other central nervous system depressants. Because ofthe risk of habituation and dependence, individuals with a history of addiction to or abuse of drugs or alcohol should be carefully monitored while receiving Ambien.
10 Xanax is a trade name for alprazolam tablets. Alprazolam is a benzodiazepine used ±or the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. It is a dangerous drug as defined in Business and Professions Code section 4022, and a Schedule lV controlled substance pursuant to Health and Safety Code section 11057. Xanax has a central nervous system depressant eilect and patients should be cautioned about the simultaneous ingestion of alcohol and other central nervous system depressant drugs during treatment with Xanax. Addiction-prone individuals should be under careful
16
Respondent noted that he counseled Patient W.C. that Xanax could be habit-forming and should be used sparingly only when the anxiety was uncontrollable. Respondent recommended Patient W.C. attend counseling. Patient W.C. also complained of insomnia and said that he had been using Restoril 11 with good results. Respondent recommended a sleep study, but the patient said he could not afford one. Respondent advised Patient W.C. that Restoril would stop working after a time, and urged him to seek "professional help" for his insomnia. Patient W.C. requested Percocet for his leg pain. Respondent diagnosed insomnia, anxiety and musculoskeletal pain, and prescribed 30 tablets of Xanax, 60 tablets of Restoril and 120 tablets ofPercocet. Respondent suggested to Patient W.C. that he see a pain specialist.
60. Patient W.C. returned to see respondent on October 4, 2012. Respondent's chart note indicates that his symptoms were unchanged. Respondent referred Patient W.C.to a pain specialist, but issued prescriptions for Restoril (60 tablets), Pcrcocet (120 tablets) and Xanax (90 tablets).
61. W.C.'s final visit to respondent was on November 1, 2012. Patient W.C. reported that he had scheduled an appointment with a pain specialist, but had run out of medication. Respondent noted that he reviewed the "concern about habituation to all of these medications." However, respondent issued prescriptions for Percocet ( 120 tablets), Restoril (60 tablets) and Xanax ( 180 tablets).
62. At no time during his treatment of Patient W.C. did respondent document a psychiatric review or assessment neurological evaluation, or history of substance usc or abuse. Notreatment plan or objectives\\/ere docuniei1fca. Respor1-det1Ti11~lde no e1lort to document prior or ongoing therapy; he did not obtain past medical records; he ordered no laboratory testing; and, he made no effort to determine whether Patient W.C. was obtaining prescriptions from other providers.
63. Throughout the course of respondent's treatment of Patient W. C., the patient was receiving opiate and benzodiazepine prescriptions from four other practitioners.
monitoring when receiving alprazolam because of the predisposition of such patients to habituation and dependence.
11 Restoril is a trade name for tcmazepam, a hypnotic agent. It is a dangerous drug as defined in Business and Professions Code section 4022, and a Schedule IV controlled substance pursuant to Health and Safety Code section 11057. Temazepam is indicated for the short-term treatment of insomnia (generally seven to 1 0 days). Patients using temazepai11 should be warned about the possible combined effects with alcohol and other central nervous system depressants. As with any hypnotic, caution must be exercised in administering temazcpam to individuals known to be addiction prone.
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Respondent's Testimony regarding his Treatment a/Patient W C.
64. Respondent recalls Patient W.C. He saw the patient for a medical marijuana card recommendation and to treat his pain. Respondent occasionally treats male patients; he was trained to treat male patients during his residency and while he worked in the Air Force. Respondent was able to substantiate the patient's pain complaints during his physical examination, and determined that he could issue a medical marijuana card on that basis. Respondent recalls that Patient W.C. stated he could not recall the name of the physician who had recommended marijuana or prescribed medications to him in the past. Respondent did not consider that to be suspicious. Respondent prescribed Percocet for pain and Ambien for insomnia. Respondent does not believe that Percocet is contraindicated when a patient is using marijuana for pain. Respondent observed no inappropriate behavior by Patient W.C. and did consider him to be a drug abuser.
65. When Patient W.C. returned in September 2012, respondent prescribed Xanax; he cautioned Patient W.C. that it could be habit-forming, and recommended a pain specialist, but felt obligated to treat the pain. Respondent was not concerned that Patient W.C. had tried a friend's prescription medication; it indicated to him that the patient was desperate for help.
Respondent also prescribed Restoril for insomnia. He considered the contraindications with the other medications, but decided it was an acceptable risk. Respondent's plan was to treat Patient W.C. long enough for him to get an appointment with a pain specialist.
Expert Opinions of'Dr. Frunklin regarding Re.\pondent 's Treatment oj"Patient W. C.
66. Dr. Franklin explained that the standard of practice for treating a patient's anxiety, insomnia and pain requires careful evaluation of the presenting complaint, performing and documenting a sufficient history, physical examination and laboratory studies to confirm the diagnosis, excluding more serious pathology, and ensuring treatment is safe and effective.
67. Dr. Franklin opined that respondent acted in good faith, but with inadequate training, experience and skill, in treating the patient's repOJied anxiety, insomnia and pain. Dr. Franklin noted that respondent had recommended professional help for sleeplessness, pain management and anxiety, but continued to prescribe medication despite his lack of adequate training, experience and skill in these areas.
68. Dr. Franklin found respondent's initial intake history to be sparse, similarly deficient to the intake history for Patient E.M. There was no psychiatric or neurological review of systems. There was no documented history of substance abuse or a lack thereof. The patient's social history was not documented. The initial physical examination was also found to be sparse; there was no psychiatric or neurological physical examination, or laboratory studies or toxicology screens ordered. Respondent's assessment was limited to the patient's stated complaints; a patient report of pain, insomnia and anxiety with a request
18
for particular medications should be a red flag for potential substance abuse. Although respondent prescribed medication, no management plan or rationale was documented and the notes do not even document the Percocet and zolpidem prescriptions that were issued. Respondent did not attempt to contact prior or current treating physicians and accepted Patient W.C.' s statement that he could not recall the names of his physicians. Respondent was ignorant of the CURES system and the Board's Guidelines, yet he prescribed a variety of medications for the patient. Respondent did not document a concern regarding substance abuse and did not plan for a follow-up evaluation.
69. Dr. Franklin noted that during the second visit, in September 2012, Patient W.C. reported trying a friend's Xanax, which should have alerted respondent to the possibility of substance abuse or diversion. The patient also mentioned using Restoril. Dr. Franklin opined that ignoring this evidence of potential drug abuse evidenced respondent's profound lack of knowledge. Respondent nevertheless prescribed large quantities of two different benzodiazepines without documenting a rationale in the chart. Dr. Franklin opined that the use of the two agents might under unusual circumstances be prescribed together, it should only be done by the most skillful and experienced physicians, usually a psychiatrist. Tn Dr. Franklin's opinion, respondent's decision to prescribe Restoril and Xanax without documenting anything beyond the patient's complaint of insomnia and anxiety evidenced a profound lack of knowledge of basic pharmacology, drug abuse and diversion. and constituted an extreme departure from the standard of practice.
70. Dr. Franklin opined that respondent's attempt to evaluate and manage diagnoses outside of his area of skill. training and experience constituted an extreme departure from the standard of practice. Specifically;Di'. Fninl<lin conclCided tl1afit was ari extreme departure from the standard of practice to: 1) undertake evaluation and management of insomnia, anxiety and pain in a new patient who presented to his office for evaluation of medical marijuana use; 2) to fail to consider and address the high probability of drug abuse and diversion inherent in the patient's presentation; 3) to continue treatment of insomnia once respondent realized that specialist referral was indicated; 4) to fail to take and document a thorough history, targeting areas of substance abuse, social history, risk diversion and abuse and prior treatment history; 5) to fail to document a detailed psychiatric review of symptoms; 6) to fail to document a thorough neurological and psychiatric physical examination: 7) to fail to explicitly address the issue of aberrant drug behavior; and, 8) to provide the patient with quantity of benzodiazcpam agents greater than the close instructed.
71. Dr. Franklin opined that respondent's failure to document an adequate history and physical examination was a simple departure i!·om the standard of practice since he recognized and acted upon the need for a specialist referral.
72. Dr. Franklin explained that the standard of practice in California is to exercise due caution and good clinical judgment when prescribing potentially-dangerous medications, particularly when they are given in combination. Further, the standard of practice requires physicians to be aware of the adverse etTects of the drugs they prescribe and to carefully document reasons f~w off-label usc, to consider the risk of intentional and unintentional
19
overdose when prescribing opioid medication, and to assess for clinical evidence of withdrawal and treat withdrawal. Dr. Franklin opined that it is the standard of practice to carefully review adverse eflects and possible drug-drug interactions with the patient and to document that the review was done.
Dr. Franklin noted that benzodiazepines and opiates have additive toxicities of respiratory and central nervous system suppression; prescribing them together in large quantities as respondent did, is perilous and must be undertaken with great caution. Prescribing these agents together without careful documentation of the rationale behind such treatment constitutes an extreme departure from the standard of practice and adds the real risk of serious adverse reactions, including death by overdose.
Dr. Franklin opined that respondent's prescribing of both benzodiazepines and opiates simultaneously constituted an extreme departure 11·om the standard of practice.
73. The standard of practice in California is to recommend medical marijuana only when it is clinically indicated and only as pat1 of a rational treatment plan that has specific, identifiable goals. Moreover, medical marijuana may only be recommended for serious medical conditions. The standard of practice for evaluating a patient for medical marijuana was articulated in the Board's precedential decision in the Matter of the Accusation Against Tod H. Mikuriya, M.D.:
[T]he standard of practice for conducting a medical cannabis evaluation is identical to that followed by physicians in recommending any other treatment or medication. The standard applies regardless of whether the physician is acting as a treating or as a consulting physician. The medical cannabis evaluation is certainly focused on the patient's complaints, but it does not disregard accepted standards of medical responsibility. These standards include history and physical examination of the patient; development of a treatment plan with objectives; provision of informed consent; periodic review of the treatment's efficacy and proper recordkeeping. When a cannabis recommendation is being made for a psychiatric condition the examination would additionally entail a mental status examination to establish a psychiatric diagnosis and severity of the condition. In such cases a physical examination might not be included, or might only include a limited physical examination appropriate to the clinical situation. In sum, the standard of practice for a physician recommending marijuana to a patient is the same as pertains to recommending any other treatment or medication.
The standard of practice requires that the evaluation be supported by adequate documentation. That documentation
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must reflect the physician's initial history and physical/mental status exam, evaluation of each condition in question and a diagnosis and/or differential diagnosis. A physician must document pertinent physical and/or psychiatric findings, referrals, a treatment plan and follow-up.
Dr. Franklin reported that this standard is consistent with his understanding of the usual community standard. Dr. Franklin also explained that the standard requires the physician to determine the risk/benefit ratio of medical marijuana as good, or better, than other medications that could be used for the individual patient. Further, it mandates that a physician who is not the primary treating physician may still recommend medical marijuana: however, it is incumbent upon the physician to consult with the patient's primary care physician or obtain the appropriate records to confirm the patient's underlying diagnosis and prior treatment history. Finally, the recommendations should be limited to the time necessary to appropriately monitor the patient.
74. Dr. Franklin acknowledged that respondent took a history and described in his interview a reasonable rationale for recommending medical marijuana to Patient W.C. However, Dr. Franklin criticized respondent's f~1ilure to explore aberrant drug behavior, including obtaining past medical records. In addition, Dr. Franklin noted that respondent did not identify treatment goals or document informed consent. Moreover. respondent did not document discussing the fact that marijuana can exacerbate anxiety, underlying depression and insomnia, or the additive toxicity of short-acting opiates and a benzodiazepinc might have \Vith marijuana.
75. Dr. Franklin opined that seeing Patient W.C. tor a medical marijuana recommendation constituted a simple departure from the standard of practice. However, he opined that is was an extreme departure from the standard of practice for respondent to fail to take other steps to exclude cannabis abuse. Dr. Franklin opined that respondent's inability to explain the correct rationale for the requirement of the standard of practice to obtain records of prior treatment, beyond confirming the diagnosis at hand, evidenced ignorance on his behalf Dr. Franklin found that respondent's failure to outline specific treatment goals constituted a simple departure from the standard of practice. However, he opined that respondent's failure to document informed consent, and to recommend marijuana while prescribing an opiate and a benzocliazepam for the same set of problems without careful documentation of a sound clinical rationale behind such an aggressive practice constituted an extreme departure from the standard ofpractice. Dr. Franklin considered respondent's recommendation of medical marijuana within the context of this case to constitute an extreme departure from the standard or practice.
Dr. Franklin's Opinion regarding Respondent's Fitness to Practice
76. Dr. Franklin opined that respondent's treatment of both Patient E.M. and Patient W.C. contained a series of extreme departures from the standard of practice. He also views elements of respondent's care that were strong. Dr. Franklin attributes at least a
21
portion of respondent's errors to failing to recognize the limits of his scope of practice, that set of practices that is within the limits of his training, experience and skill. Dr. Franklin opined that respondent allowed himself to practice well outside of his safe scope of practice in regards to both patients. Respondent failed to recognize that Patient E.M. 's use of high-dose opiates represented a serious threat to her health and the health and safety of her child, and did not to appropriately categorize her gestation as high-risk, thereby allowing himself to practice in an area in which he lacked the appropriate training and experience. Similarly, with Patient W.C., respondent undertook to evaluate medical marijuana use and the simultaneous evaluation and management of anxiety, insomnia and chronic pain, while misunderstanding the standard of practice in those areas. Respondent had no medical training in managing these clinical problems, yet he undertook the treatment without an apparent second thought.
77. Based on his review of these cases and the opinions he reached, Dr. Franklin opined that despite prior Board-mandated education, respondent's lack of understanding is a serious and dangerous, and represents a direct threat to the safety of any patient under his care.
Expert Opinions of Dr. Wilcosky regarding Respondent's Treatment ofPatient W C.
78. Dr. Wilcosky opined that respondent did not plan to treat Patient W.C. on a long-term basis, and that he undertook treatment of the patient on a transitional basis. In Dr. Wilcosky's opinion, respondent was entitled to rely on the patient's history as given and a physical examination that corroborated the history and was compatible with chronic pain. Dr. Wilcosky opined that it is not uncommon to try a combination of medications, such as marijuana, Xanax and Percoeet, and to make adjustments over time. Determining the right medication for a patient can be a matter of trial and error.
79. Because respondent referred Patient W.C. to a pain management specialist, in Dr. Wilcosky's opinion, his recordkeeping deficiencies should be viewed as interim treatment rather than chronic pain treatment. Although the Board's Guidelines require obtaining a patient's prior medical records before prescribing controlled substances, Dr. Wilcosky did not consider that mandatory where he was not undertaking chronic pain management, but providing interim treatment.
80. Dr. Wilcosky considered all of respondent's actions to comply with the standard of care existing in a small community in 2012. Dr. Wilcosky notes that currently there is an emphasis on opioid abuse and diversion, which has led to more stringent standards; however, he believes that in 2012, the standards were less stringent and respondent did not intend to violate the standard. Dr. Wilcosky points out that in 2012, the CURES program was relatively new and that as of early 2013 only approximately six percent of eligible prescribers were utilizing the CURES system.
Ultimcrte Conclusions regarding Respondent's Treatment of Patient W. C.
81. Dr. Franklin's opinions concerning respondent's treatment of Patient W.C. were more persuasive and were consistent with the Board's Guidelines and the standard of practice. Dr. Wilcosky excused respondent from following the standard of care because he viewed respondent's treatment of the patient as "transitional." Respondent did not treat the patient in an emergency situation and there is no evidence that a physician may avoid the standard of care or practice outside of the scope of his practice because he is at the same time referring the patient to a specialist. Respondent failed to follow the steps required by the standard of care, allowing the patient to obtain large quantities of dangerous medications.
Respondent's Evidence
82. Respondent is 61 years old. His practice is mainly comprised of obstetric and gynecology patients, but estimates that 10 percent of his practice is devoted to family medicine. and 10 percent to cosmetic surgery. Respondent maintains full privileges at Ukiah Valley Medical Center. Respondent estimates that he has delivered approximately 8,000 babies in his career. He treats low risk pregnancies and high risk pregnancies. Respondent considers high risk pregnancies to include women who suffer from cardiac distress. hypertension. diabetes or who arc homeless. Respondent has also treated chronic pain patients, including some who have suffered from chemical dependency, but generally does not treat patients just for chronic pain. He will sec them short-term while they are waiting for an appointment with a specialist. There is only one pain management specialist in Ukiah and appointments arc scheduled weeks or months after a request.
83. Respondent has been on probation to the Board for approximately 14 years overall. He is currently monitored by the PACE Program. Respondent implemented electronic medical records at his office in 2012. The electronic medical records have helped make his charting more complete and more legible. Respondent reports that he has learned a great deal from the PACE program and his probation grants.
84. The Board restricted respondent's cosmetic surgery practice to an accredited setting. Respondent's office was accredited as an ambulatory surgery center in November 2015.
85. Kathleen Persky, M.D .. testified at hearing. Dr. Persky is a board certified general surgeon: she has practiced at Ukiah Valley Medical Center for over 25 years. Dr. Persky has worked alongside respondent in surgery and they have referred patients to one another. Dr. Persky is aware of the accusation pending against respondent and has served as a reference for him in past Board disciplinary actions. Despite her understanding of the disciplinary history on respondent's license, she considers him to be a very competent and compassionate physician and surgeon. In addition, Dr. Persky wrote a letter to the Board in which she reports that she has closely observed him in surgery, and his preoperative and postoperative care. She has found his surgical judgment and ability to be exemplary.
86. Pediatrician Kristen Q. Juliet, M.D., wrote a letter stating that from the medical records it appeared that pediatricians were informed ofPatient E.M.'s narcotic pain medication use at birth.
87. Respondent's cosmetic surgery practice is monitored by Marek Dobke, M.D., USCD School of Medicine Professor of Surgery. Dr. Dobke has reported to the Board that respondent's plastic surgery charts are overall adequate.
Respondent's obstetrics and gynecology practice is monitored by Christine Miller, M.D., a clinical professor of reproductive medicine in the division of general obstetrics and gynecology at UCSD. Dr. Miller wrote a letter regarding respondent's conduct on probation dated February 24, 2016. Dr. Miller is not familiar with respondent's treatment of Patient E.M. or Patient W.C. However, she is familiar with respondent's practice generally as she has been assigned as his UCSD PACE Program mentor since 2014. Respondent has complied vvith his probation monitoring. Dr. Miller has found that the documentation in the charts she has audited to meet the standard of care. The PACE records indicate that respondent's charting has improved significantly over the past five years.
8 8. Respondent presentee\ numerous letters of reference for the Board's consideration. David DeBooy, M.D., an anesthesiologist in Ukiah, has worked with respondent for 25 years. He considers respondent to be an excellent surgeon and physician. Mark Cabaniss, a former patient, wrote a letter praising respondent's willingness to see him quickly to remove a mole. Darryl Bridges, a patient and friend of respondent's, wrote a letter praising respondent's caring personality and excellent skills. E. Christopher Outlund, M.D., an anesthesiologist who has worked with respondent for three years, reports being impressed with respondent's skills and expertise. Charles Evans, M.D., wrote a letter elated June I 0, 2014. Dr. Evans has worked with respondent tor over 20 years as an emergency medicine physician. In his experience, respondent has been prompt, available and professional in caring tor patients. Ronald E. Guth, M.D., an anesthesiologist. wrote a letter dated November 10, 2013, regarding an emergency Cesarean section respondent performed on September I 0, 2013. Dr. Guth reports that he witnessed respondent remain calm and deliver a baby under extremely stressful circumstances. Marvin G. Trotter, Chief Medical Officer of Pacific Redwood Medical Group, Inc., wrote a letter of reference dated October 8, 2013, in which he praised respondent for his superior obstetric and gynecological work. Karen Crabtree, M.D., r.A.C.O.G., wrote a letter of reference dated September 16, 2013. Dr. Crabtree is a professional colleague and reports that respondent provides consistent and reliable obstetric and gynecological care to his patients; she considers him to be an excellent surgeon. Valerie Jackson, a colleague of over 30 years wrote a letter elated May 1, 2014, in which she praised respondent's surgical abilities. Sarah Brown, R.N., wrote a letter dated May 20, 2014, a patient of respondent's, reports that she would recommend respondent to friends and family for plastic surgery. Finally, Nancy Bray, a colleague at the hospital tor over 20 years, and a former patient, praises respondent's calm nature and professional attitude.
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89. On December 15, 2015, respondent completed three credits in a course entitled "Scope ofPain: Safe and Competent Opioid Prescribing Education." On February 3, 2015, respondent completed 15 credits in a course entitled "Prescription Opioids: Risk Management and Strategies for Safe Use." On February 17, 20 15, respondent completed 10 credits in a class entitled "Opioid Abuse and Dependence."
LEGAL CONCLUSIONS
Jntrodztction
1. The purpose of an administrative proceeding concerning licensure is not to punish the respondent, but rather is "to protect the public from dishonest, immoral, disreputable or incompetent practitioners [citations omitted]." (Ettinger v. Board of !vfedical Quality Assurance ( 1982) 135 Cal.App.3d 853, 856.) The goal is the prevention of future harm and the improvement and rehabilitation ofthe licensee. It is far more desirable to impose discipline before a licensee harms any patient than after harm has occurred. (Gr(ffiths v . .S'uperior Court (2002) 96 Cal.App.4th 757. 772.) While the objective. wherever possible, is to take action that is calculated to aid in the rehabilitation of the licensee. protection of the public shall be paramount. (Bus. & Prof. Code, § 200 1.1.)
2. The instant matter involves both an accusation and a petition to revoke probation. With respect to the accusation, the standard of proof regarding the charging allegations is "clear and convincing." (Ettinger 1'. Board o{JV!edical Quality Assurance. supra, 135 Cal.App.3d at 856: sccaiso lvfedical Board ofCa
Complainant established by clear and convincing evidence that respondent's treatment of Patient E.M. was grossly negligent, repeatedly negligent and incompetent; that he prescribed dangerous drugs without an appropriate prior examination and medical indication; and, failed to maintain adequate and accurate records relating to those services as set forth in Factual Findings 27 through 36, 54, 55, 76 and 77. Cause for discipline exists pursuant to Business and Professions Code sections 2234, subdivisions (b), (c) and (d), 2242, subdivision (a), and 2266.
Unproj'essional Conduct in Treatment oj'Patient W. C
5. Complainant established by clear and convincing evidence that respondent's treatment of Patient W.C. was grossly negligent, repeatedly negligent and incompetent; that he prescribed dangerous drugs without an appropriate prior examination and medical indication; and, failed to maintain adequate and accurate records relating to those services as set forth in Factual Findings 66 through 77 and 81. Cause for discipline exists pursuant to Business and Professions Code sections 2234, subdivisions (b), (c) and (d), 2242, subdivision (a), and 2266.
Probation Violation
6. Complainant established by a preponderance of the evidence that respondent violated Condition No. 7 ofhis probation which requires him to obey all federal, state and local laws, and rules governing the practice of medicine in California. (Legal Conclusions 4 and 5.) Cause to revoke respondent's probation therefore exists.
Disciplinwy Considerations
7. Cause for discipline having been established, the issue is the appropriate measure of discipline. When possible, certificates should be placed on probation with conditions, such as completing educational courses, designed to enable rehabilitation and eventual reinstatement. In this matter, however, respondent's certificate has been repeatedly placed on probation, indeed his certificate has been on probation to the Board for over 14 years. And, respondent has repeatedly been ordered to complete educational courses, including a clinical training program at PACE. Respondent's practice has been monitored over many years by physicians at the PACE Program and he asserts that he has learned a great deal from the process. However, despite the continued monitoring and education, respondent continues to violate the standard of care and to practice outside of the scope of his expertise. Based on these two cases alone, Dr. Franklin opined that respondent is not safe to practice medicine.
Respondent undoubtedly has provided good and caring treatment to many patients over the course of his career. l-Ie has accepted patients that other physicians might reject. However, respondent has failed to stay apprised ofthe Board's Guidelines, or information sent to him by the Board (such as information about the CURES program) and has failed to practice within the scope of his expertise and within the standard of care. One would hope
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and expect that after four disciplinary proceedings, 14 years of his license being on probation, and regular oversight by practice monitors, respondent would be well-acquainted with the standard of care and the Board's Guidelines, and would be careful not to exceed the scope of his practice, Unfortunately, that is not the case, At this point it is determined that the public protection requires revocation of respondent's certificate.
ORDER
Physician's and Surgeon's Certificate No. G47561, issued to Pablo Garza Cortina, M.D .. is revoked.
DATED: May 10,2016 ,.-··-"vA· DocuSigned by:
1 pitt >ct.t;okt ""~~ \ •.•• - D0097D940B484D9
JILL SCHLICHTMANN Administrative Law Judge Office of Administrative Hearings
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KAMALA D. HARRIS Attorney General of California JOSE R. GUERRERO Supervising Deputy Attorney General JANE ZACK SIMON Deputy Attorney General State Bar No. 116564
455 Golden Gate A venue, Suite 11000 San Francisco, CA 94102-7004 Telephone: ( 415) 703-5544 Facsimile: (415) 703-5480 E-mail: [email protected]
Attorneys for Complainant Medical Board of California
FILED STATE OF CALIFORNIA
MEDICAL BOARD OF CALIFORNIA SACRAMENTO:h,...lvp.e...., ]o 20JE_ BY: ...It(. tw"~...JT.I..>U1,. ,...,..._ ANALYST
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
In the Matter of the Accusation Against:
PABLO GARZA CORTINA, M.D. 1101 S. Dora Ukiah, CA 95482
Physician's and Surgeon's Certificate No. G47561
Respondent.
Complainant alleges:
Case No. 8002014002370
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 Interim Executive Director of the Medical Board of
California, Department of Consumer Affairs.
2. On June 14, 1982, the Medical Board of California (Board) issued Physician's and
Surgeon's Certificate Number G47561 to Pablo Garza Cortina, M.D. (Respondent.) The
certificate is renewed and current with an expiration date of August 31, 2015
Ill
Ill
Accusation/Petition To Revoke Probation
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3.
PRIOR DISCIPLINARY ACTION
Respondent has a disciplinary history:
On February 4, 1998, an Accusation was filed in MBC Case No. 13-94-40553,
alleging that Respondent departed from the standard of practice in his care of two patients;
in a Decision effective August 24, 1998, the Board adopted a Stipulated Settlement
consisting of a revocation, stayed, two years probation with terms and conditions including
an education course, ethics course and practice monitoring.
• On July 15, 1999, an Accusation and Petition to Revoke Probation was filed in MBC
Case No. D1-1994-40553. The Accusation and Petition to Revoke Probation was based on
a 1997 conviction for filing a false tax return and failing to report that conviction to the
Board; it was also alleged that Respondent engaged in dishonest acts in making false
statements to Medical Board regarding his whereabouts and incarceration. In a Decision
effective December 17, 1999, the Medical Board adopted a proposed decision revoking
Respondent's probation, but reinstating probation for a period of 7 years with terms and
conditions including an education course, ethics course, clinical training program,
psychiatric examination and practice monitoring.
• In 2004, Respondent petitioned for early termination of probation. In a Decision
effective February 28, 2005, the petition was granted. The Decision contains a factual
finding that Respondent testified that prior to the disciplinary action, his "focus was not
centered on medicine," but that he had "since focused on medicine, competency ... with a
zeal that is commendable ... ".
• On February 10, 2009, an Accusation was filed in MBC Case No. 12-2006-176267.
The Accusation alleged that Respondent departed from the standard of practice in his
treatment of three patients ofhis obstetrics/gynecology practice. In a Decision effective
June 9, 2010, the Board adopted a proposed decision finding that Respondent committed
acts of gross negligence, repeated negligent acts, and failed to maintain adequate and
accurate records. Respondent's license was revoked, stayed, with a 7 year probation.
2 Accusation/Petition To Revoke Probation
Terms and conditions of the probation include a medical record course, clinical training
2 program (PACE), and a practice monitor.
3 On August 8, 2013, an Accusation and Petition to Revoke Probation was filed in
4 MBC Case No. 01-2006-176267. The Accusation and Petition to Revoke Probation alleges
5 that Respondent engaged in unprofessional conduct and gross negligence in performing
6 elective cosmetic surgery in his office surgical facility, which he knew was not accredited,
7 and after he had assured the Medical Board he would stop performing surgery in the
8 unaccredited facility. The Accusation and Petition to Revoke Probation is currently
9 pending.
10 JURISDICTION
11 4. This Accusation and Petition to Revoke Probation is brought before the Medical
12 Board of California 1, under the authority of the following laws. All references are to the Business
13 and Professions Code unless otherwise specified.
14 A. Section 2227 of the Business and Professions Code authorizes the Board to take
15 action against a licensee by revoking, suspending for a period not to exceed one year,
16 placing the license on probation and requiring payment of costs of probation monitoring, or
17 taking such other action taken as the Board deems proper.
18 B. Section 2234 of the Code states, in pertinent part, that the Board shall take
19 action against any licensee who is charged with unprofessional conduct. In addition to
20 other provisions of this article, unprofessional conduct includes, but is not limited to, the
21 following:
22 (a) Violating or attempting to violate, directly or indirectly, assisting in or
23 abetting the violation of, or conspiring to violate any provision of this chapter
24 [Chapter 5, the Medical Practice Act].
25 (b) Gross negligence
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1The term "Board" means the Medical Board of California; "Division of Medical Quality" or "Division" shall also be deemed to refer to the Board.
3 Accusation/Petition To Revoke Probation
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3 C.
(c) Repeated negligent acts
(d) Incompetence
Section 2242(a) provides that prescribing, dispensing or furnishing dangerous
4 drugs without an appropriate prior examination and a medical indication constitutes
5 unprofessional conduct.
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D. Section 2266 of the Code provides that the failure to maintain adequate and
accurate records relating to the provision of services to patients constitutes unprofessional
conduct.
FIRST CAUSE FOR DISCIPLINE
Patient EM (Unprofessional Conduct/Gross Negligence/Negligence/Incompetence/Inappropriate
Prescribing/Inadequate Records)
5. Respondent's medical specialty is obstetrics and gynecology, but he is no longer
13 board certified in that or any other specialty. He has no formal training in pain management or
14 pain medication, although he has taken some coursework in that area.
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6. On January 31, 2012, Respondent first saw Patient EM. EM was 29 years old and
was in her 21st week of pregnancy. Respondent's medical record notes that EM reported that she
suffered from chronic sciatica and depression, and that she had been taking Oxycodone2 for the
sciatica and was taking prescription medication for depression. Respondent's chart documents a
cursory but completely normal physical examination. No evaluation or assessment of EM's
complaint of pain attributed to sciatica is documented, and there is no documented evaluation or
assessment of EM's complaint of depression. Respondent did not take any history of substance
use and/or abuse. No prior medical records were obtained, and Respondent did not consult with
EM's other physicians. On January 31, 2012, Respondent issued a prescription for 180 tablets of
Oxycodone IR, 15 mg.
2 Oxycodone (Oxycontin, Oxycodone IR) is an opioid analgesic. It is a Schedule II controlled substance and narcotic and is a dangerous drug as defined in Business and Professions Code section 4022. Oxycodone can produce drug dependence and, therefore, has the potential for being abused. Oxycodone is indicated for the management of moderate to severe pain, and is a commonly abused or diverted drug.
4 Accusation/Petition To Revoke Probation
7. Respondent saw EM for prenatal visits on 8 occasions in 2012. On February 13,
2 March 12, April 9 and May 7, he issued prescriptions for 180 tablets of Oxycodone IR; on May
3 21, June 4 and June 14, he issued prescriptions for 90 tablets of Oxycodone IR. On April 2, EM
4 filled a prescription issued by Respondent for Phenergan3 25 mg, #40; there is no indication in
5 Respondent's record of the reason for the prescription or that Respondent considered the potential
6 interaction between Phenergan and Oxycodone. After his initial January 31 chart note stating
7 simply that EM was taking Oxycodone, there is no further mention in Respondent's progress
8 notes of the Oxycodone until the June 4 visit, when Respondent documented that EM "complains
9 of severe back pain which was treated by her regular physician with oxycodone. Pt wants
10 oxycodone rx. I caution pt. that she should take this med as sparingly as possible to avoid
11 habituation of the fetus. Pt states she understands." Respondent's June 14 progress note states
12 "Rx of oxycodone. I advise pt that she needs to cut back on her medication in order to avoid
13 withdrawal symptoms of the newborn. This is something that I have brought up to the pt at every
14 visit where she has received oxycodone Rx. The pt states that she is doing her best." In spite of
15 these chart notations, Respondent continued to prescribe the same large amounts of Oxycodone to
16 EM.
17 8. Respondent at no time documented a specific treatment plan for EM's complaint of
18 chronic pain. After his initial examination, which was completely normal, Respondent failed to
19 document any physical examination or findings to support his clinical diagnosis and ongoing
20 prescription of Oxycodone. He did not contact the physician who EM informed him had
21 previously prescribed Oxycodone; he made no effort to obtain prior medical records. He did not
22 consider or discuss with EM non-pharmacological measures to help control her pain, and there is
23 no indication that he ever discussed with EM the risks inherent in high dose opiate treatment
24 during pregnancy. Respondent failed at any time to document whether EM's pain was
25 improving, deteriorating or remaining the same. He did not consult with a pain specialist, and
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3 Phenergan is a trade name for promethazine, a drug containing codeine. It is a dangerous drug as defined in section 4022, and a Schedule V controlled substance. It has antihistaminic, sedative, antimotion-sickness, antiemetic, and anticholinergic effects.
5 Accusation/Petition To Revoke Probation
1 took no steps to determine whether EM was obtaining opiates from other providers.4 At no time
2 did Respondent consider the use of long-acting opiates for EM. No plan for the safe delivery and
3 post-partum management of a baby born to an opiate-dependent mother was created or
4 documented. Respondent indicated during his interview with the Medical Board that he was
5 unaware ofthe Board's Guidelines for Prescribing Controlled Substances for Pain, or of the
6 existence of the Controlled Substances Utilization Evaluation and Review System (CURES).
7 9. On June 19, 2012, EM delivered a baby who was opiate dependent, suffered
8 withdrawal and required treatment with morphine.
9 10. Respondent is guilty of unprofessional conduct and subject to disciplinary action
10 under section 2234, and/or 2234(b) and/or 2234(c) and/or 2242(a) of the Code in that Respondent
11 was grossly negligent and/or committed repeated negligent acts and/or was incompetent and/or
12 inappropriately prescribed, including but not limited to the following:
13 A. Respondent undertook to treat an opiate-dependent prenatal patient, and
14 prescribed high doses of narcotic medication without conducting the necessary
15 examination, evaluation and assessment to support his diagnosis or the prescription of
16 medication.
17 B. Respondent diagnosed and treated EM for sciatica and pain without adequate
18 history, physical or clinical evidence to support his diagnosis or treatment, and continued to
19 treat and prescribe without any ongoing assessment of the effectiveness of the treatment.
20 c. Respondent prescribed large amounts of opioid medication to a pregnant patient
21 without obtaining a history of substance abuse or assessing the risk of drug abuse and
22 diversion, without attempting to determine whether she was obtaining drugs from other
23 providers, and without taking steps to ensure compliance with his treatment plan.
24 D. Respondent failed to provide and/or document informed consent for the
25 treatment of a pregnant patient with high doses of opioid medication.
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4 In fact, EM was obtaining large amounts of opiate and benzodiazepine medication from another physician during the time Respondent was treating and prescribing to her.
6 Accusation/Petition To Revoke Probation
E. Respondent failed to obtain any history of substance abuse or to assess the risk
2 of drug abuse and diversion.
3 F. Respondent prescribed high doses and potentially dangerous combinations of
4 drugs without adequate indication or monitoring, and in the absence of a treatment plan
5 with objectives. He prescribed Phenergan to EM without documented indication, and
6 without consideration of the risks of adding that medication to the Oxycodone he was
7 prescribing, and without monitoring her for adverse effects.
8 G. Respondent prescribed large amounts of controlled substances to EM without
9 adequate training, education or knowledge to do so in a safe and competent manner, and
10 without obtaining consultation from specialists.
11 H. Respondent failed to recognize the he was providing high-risk obstetric care to
12 EM, and to document a high-risk management plan for his opiate-dependent patient and her
13 fetus.
14 I. Respondent did not formulate and/or document a plan for the safe delivery and
15 post-partum management of an opiate-dependent neonate.
16 11. Respondent is guilty of unprofessional conduct and subject to disciplinary action
17 under sections 2234, and/or 2234(c), and/or 2266 of the Code in that he failed to keep adequate
18 and accurate records for patient EM:
19 A. Respondent's medical record fails to adequately document a patient history,
20 medical examination, evaluation, assessment, treatment plan, objectives, informed consent,
21 or rationale for the medications prescribed and treatment provided.
22 B. Respondent's record fails to adequately document a medical basis or indication
23 for the ongoing prescription of large amounts of Oxycodone and the addition of Phenergan,
24 or to document physical examination findings that supported his clinical diagnosis of
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7 Accusation/Petition To Revoke Probation
1 C. Respondent failed to document a treatment plan for the safe delivery and post-
2 partum management of EM and her baby.
3 D. Respondent failed to document an informed consent for the prescription of
4 large amounts of opioids to a pregnant patient; he failed to document discussions of her use
5 of opiate medications; and, he failed to document any consideration or discussion of the
6 prescription of Phenergan.
7 SECOND CAUSE FOR DISCIPLINE
8 Patient WC
9 (Unprofessional Conduct/Gross Negligence/Negligence/Inappropriate Prescribing)
10 12. Respondent first saw Patient WC on May 3, 2012. WC sought renewal of a
11 recommendation for the use of medical marijuana which had previously been issued by another
12 practitioner. WC was 38 years old, and complained of chronic knee and lower extremity pain
13 from old accidents. WC stated that he was taking several medications, but Respondent's record
14 does not identify the prescriber. Respondent noted physical findings suggestive of past factures,
15 scaring, leg tenderness on examination, and decreased range of motion of the left knee.
16 Respondent' s assessment was chronic and persistent musculoskeletal pain, and he documented a
17 discussion of the use of marijuana for chronic pain. Respondent issued a recommendation for
18 medical marijuana use.
19 13. Respondent's progress note for the May 5, 2012 visit does not document that he
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prescribed medications other than marijuana, but Respondent issued prescriptions for Percocet5
(120 tablets) and Ambien6 (60 tablets.) No medical indication for the prescriptions was noted in
5 Percocet is a trade name for a combination of oxycodone hydrochloride and acetaminophen. It is a dangerous drug as defined in section 4022, and a Schedule II controlled substance. Oxycodone can produce drug dependence of the morphine type and, therefore, has the potential for being abused.
6 Ambien is a trade name for zolpidem tartrate. It is a dangerous drug as defined in
section 4022, a Schedule IV controlled substance. It is indicated for the short-term treatment of insomnia, and is a central nervous system depressant which should be used cautiously in combination with other central nervous system depressants. Because of the risk of habituation and dependence, individuals with a history of addiction to or abuse of drugs or alcohol should be
(continued ... )
8 Accusation/Petition To Revoke Probation
the chart, and no treatment plan was noted. No past medical records were obtained, and
2 Respondent made no attempt to determine whether we was obtaining prescriptions from other
3 providers.
4 14. Respondent next saw we on September 6, 2012. Respondent noted that we
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reported a history of anxiety, for which he had taken a friend's Xanax7. Respondent noted that he
counseled we that Xanax could be habit forming and should be used sparingly only when the
anxiety was uncontrollable. Respondent recommended counseling. we also complained of
insomnia and said that he had been using Restoril8 with good results. Respondent recommended
a sleep study, but the patient said he could not afford one. Respondent advised we that Restoril
would stop working after a time, and urged him to seek "professional help" for his insomnia. we
requested Percocet for his leg pain. Respondent advised We to see a pain specialist. Respondent
diagnosed insomnia, anxiety and musculoskeletal pain, and prescribed 30 tablets ofXanax, 60
tablets of Restoril and 120 tablets of Percocet.
We returned to Respondent on October 4, 2012. Respondent's chart note indicates that his
symptoms were unchanged. Respondent referred we to a pain specialist, and issued
prescriptions for Restoril ( 60 tablets,) Percocet ( 120 tablets,) and Xanax (90 tablets.) we' s final
visit to Respondent was on November 1, 2012. we reported that he had scheduled an
( ... continued) carefully monitored while receiving Ambien.
7Xanax is a trade name for a1prazolam tablets. Alprazolam is a benzodiazepineused for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. It is a dangerous drug as defined in section 4022 and a Schedule IV controlled substance. Xanax has a central nervous system depressant effect and patients should be cautioned about the simultaneous ingestion of alcohol and other eNS depressant drugs during treatment with Xanax. Addictionprone individuals (such as drug addicts or alcoholics) should be under careful surveillance when receiving alprazolam because of the predisposition of such patients to habituation and dependence.
8Restoril is a trade name for temazepam, a hypnotic agent. It is a dangerous drug as defined in section 4022, and a Schedule IV controlled substance. Temazepam is indicated for the short-term treatment of insomnia (generally 7-10 days). Patients using temazepam should be warned about the possible combined effects with alcohol and other central nervous system depressants. As with any hypnotic, caution must be exercised in administering temazepam to individuals known to be addiction prone.
9 Accusation/Petition To Revoke Probation
appointment with a pain specialist, but had run out of medication. Respondent noted that he
2 reviewed the "concern about habituation to all of these medications" but issued prescriptions for
3 Percocet (120 tablets,) Restoril (60 tablets,) and Xanax (180 tablets.)
4 15. At no time during his treatment of WC did Respondent document a psychiatric
5 review or assessment, neurological evaluation, or history of substance use or abuse. No treatment
6 plan or objectives were documented. Respondent made no effort to document prior or ongoing
7 therapy; he did not obtain past medical records; he ordered no laboratory testing; and, he made no
8 effort to determine whether WC was obtaining prescriptions from other providers. In fact,
9 throughout the time Respondent was treating WC, the patient was receiving opiate and
10 benzodiazepine prescriptions from at least four other practitioners.
11 16. Respondent is guilty of unprofessional conduct and subject to disciplinary action
12 under section 2234, and/or 2234(b) and/or 2234(c) and/or 2242(a)ofthe Code in that Respondent
13 was grossly negligent and/or committed repeated negligent acts and/or was incompetent, and/or
14 inappropriately prescribed, including but not limited to the following:
15 A. Respondent undertook to treat Patient WC for complaints of chronic pain,
16 anxiety and insomnia. Although Respondent lacked the education, training, knowledge or
17 ability to treat these conditions, he prescribed a short-acting opiate and sedatives without
18 conducting and/or documenting the necessary examination, evaluation and assessment to
19 support his diagnosis or the prescriptions.
20 B. Respondent prescribed to WC potentially dangerous combinations of narcotic
21 and benzodiazepine medications without adequate indication or monitoring, and in the
22 absence of a treatment plan with objectives.
23 C. Respondent prescribed commonly-diverted drugs to a patient without an
24 adequate basis, and without taking any steps to exclude drug diversion or abuse by we.
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10 Accusation/Petition To Revoke Probation
17. Respondent is guilty of unprofessional conduct and subject to disciplinary action
2 under sections 2234, and/or 2234(c), and/or 2266 of the Code in that he failed to keep adequate
3 and accurate records for patient WC:
4 A. Respondent's medical record fails to adequately document patient history,
5 medical examination, evaluation, assessment, treatment plan, objectives, informed consent,
6 or rationale for the medications prescribed.
7 CAUSE TO REVOKE PROBATION
8 18. Respondent's probation in Case No. 12-2006-176267 provides:
9 "Respondent shall obey all federal, state and local laws, all rules governing the practice of
10 medicine in California and remain in compliance with any court-ordered criminal
11 probation, payments, and other orders."
12 19. Respondent's probation is subject to revocation in that he violated laws and rules
13 relating to the practice of medicine in his failure to adhere to the standard of practice, including
14 written guidelines pertaining to the prescribing of controlled substances, and provisions of the
15 Medical Practice Act as set forth in the First and Second Causes for Discipline, above.
16 PRAYER
17 WHEREFORE, Complainant prays that a hearing be held and that the Board issue an order:
18 1. Revoking or suspending physician and surgeon certificate number G47561 issued to
19 Pablo Garza Cortina, M.D.;
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2.
3.
4.
DATED:
Revoking the probation previously granted Respondent in Case No. 12-2006-176267;
Prohibiting Pablo Garza Cortina, M.D., from supervising physician's assistants;
Taking such other and further action as may be deemed proper and appropriate.
January 30, 2014
Interim Executiv irector Medical Board of California Department of Consumer Affairs State of California Complainant
11 Accusation/Petition To Revoke Probation