A performance audit of the Board of Medical Examiners

              STATE OF ARIZONA

OFFICE OF THE

AUDITOR GENERAL

A PERFORMANCE AUDIT

OF THE

BOARD OF MEDICAL EXAMINERS

OCTOBER 1981

A REPORT TO THE

ARIZONA STATE LEGISLATURE

REPORT 81 - 1 1

DOUGLAS R. NORTON. CPA

AUDITOR GENERAL

STATE OF ARUONA

OFFICE OF THE

AUDITOR GENERAL

October 22, 1981

Members of the Arizona Legislature

The Honorable Bruce Babbitt, Governor

M r . Douglas Cerf, Executive Director

Transmitted herewith is a report of the Auditor General, A Performance

Audit of the Board of Medical Examiners. This report is i n response to a

January 30, 1980, resolution of the Joint Legislative Oversight

Committee. The performance audit was conducted as a part of the Sunset

review s e t forth i n A. R. S. $$ 41- 2751 through 41- 2379.

The blue pages present a summary of the report; a response from the

Executive Director is found on the yellow pages preceding the appendices.

My s t a f f and I w i l l be pleased to discuss or c l a r i f y items i n t h e r e p o r t .

Respectfully submitted,

Staff: Gerald A. Silva

Coni Rae Good

Peter Francis

Sue Ann Waddell

P h y l l i s Faust

Enclosure

~ o u ~ r Ra. sN orton

Auditor General

cc: Members of the Board

1 1 1 WEST MONROE,. SUITP600 PHOENIX, ARIZONA 85003 ( 602) 255- 4385

TABLE OF CONTENTS

SUMMARY

INTRODUCTION AND BACKGROUND

SUNSET FACTORS

FINDINGS

FINDING I

Since January 1, 1979, the Board of Medical Examiners

has improved the quality and thoroughness of its

complaint investigations significantly. However, some

changes i n the complaint review process are needed.

CONCLUSION

REC OMMENDATI ONS

FINDING I1

The Board of Medical Examiners has been lenient i n

its disciplining of physicians who are the subjects

of multiple complaints.

CONCLUSION

REC OMMENDATI ONS

FINDING I11

The granting of limited licenses has been subjected

to abuses and appears to be unnecessary.

CONCLUSION

RECOMMENDATION

FINDING IV

Confidential BOMEX records are not adequately

protected from unauthorized access and review.

Page

i

1

5

CONCLUSION

RECOMMENDATION

OTHER PERTINENT INFORMATION

- Page

67

Board appointments

Surveys of Complainants and Licensed Physicians

Board J u r i s d i c t i o n over Fee Disputes

Survey of Hospitals and Medical S o c i e t i e s

Relationship t o Association

I n v e s t i g a t i v e Findings Terminology

Public Information E f f o r t s and Public Awareness of BOMEX

WRITTEN RESPONSE TO THE AUDITOR GENERAL RJ3TORT

APPENDICES

APPENDIX I - L e g i s l a t i v e Council Opinion 0- 81- 16, May 14, 1981

APPENDIX I1 - L e g i s l a t i v e Council Opinion 0- 81- 13, May 15, 1981

APPENDIX I11 - L e g i s l a t i v e Council Opinion 0- 81- 14, May 21, 1981

APPENDIX I V - L e g i s l a t i v e Council Opinion 0- 81- 12, May 14, 1981

APPENDIX V - L e g i s l a t i v e Council Opinion 0- 81- 25, May 15, 1981

APPENDIX V I - L e g i s l a t i v e Council Opinion 0- 81- 41, May 22, 1981

APPENDIX V I I - L e g i s l a t i v e Council Opinion 0- 81- 30, May 21, 1981

APPENDIX V I I I - L e g i s l a t i v e Council Opinion 0- 81- 47, June 2, 1981

APPENDIX I X - L e g i s l a t i v e Council Opinion 0- 81- 11, May 21, 1981

LIST OF TABLES

TABLE 1

BOMEX workload measures from calendar year 1976 through

1980

TABLE 2

BOMEX expenditures and revenues for f i s c a l years 1976- 77

through 1979- 80 and estimates for f i s c a l year 1980- 81

TABLE 3

Summary of percentages of complaints receiving s t a f f ,

Board- member and f u l l Board reviews during the six- month

periods ended June 30, 1979, December 31, 1979 and June 30,

1980

TABLE 4

Disposition of complaints by type January 1, 1979 - June 30,

1980

TABLE 5

Percentage of complaints resolved by actual time

TABLE 6

Comparison of actual Board d i s c i p l i n e t o proposed c r i t e r i a

TABLE 7

Summary of the number of limited licenses as of August 15,

1980

TABLE 8

Patient and physician ratings of the q u a l i t y of BOMEX

complaint investigations

TABLE 9

Methods used by Arizona regulatory agencies to encourage

public input and public p a r t i c i p a t i o n i n a c t i v i t i e s

concerning regulatory duties

Page

2

SUMMARY

The Office of the Auditor General has conducted a performance audit of the

Board of Medical Examiners i n response to a January 30, 1980, resolution

of the Joint Legislative Oversight Committee. This performance audit was

conducted as a part of the Sunset review s e t f o r t h i n Arizona Revised

Statutes ( A. R. S.) Ss41- 2351 through 41- 2379.

The Board of Medical Examiners, established i n 1913, is responsible for

examining and licensing medical doctors i n Arizona and protecting the

public from incompetent and harmful p r a c t i t i o n e r s of medicine. Its

membership consists of nine licensed physicians, two public members and

the president of the Board of Nursing. A l l members, except the Nursing

Board president, are appointed by the Governor to five- year terms.

Our review found t h a t t h e q u a l i t y and thoroughness of the Board's

investigations of complaints have improved s i g n i f i c a n t l y since 1979. More

complaints are now reviewed by s t a f f physicians, Board members and the

f u l l Board. Despite improvements i n the quality of Board investigations,

we noted some deficiencies i n its complaint review procedures.

Board- member involvement i n complaint investigations has overburdened some

members with complaints and resulted i n the appearance of p a r t i a l i t y and

unnecessary delays. We recommend t h a t Board- member involvement i n

investigations be reduced since it is unnecessary. ( page 17)

We also found that: 1) boafa C G i l i c i C t a i t h complainants has been

i n s u f f i c i e n t , 2) informal interviews have been used inappropriately,

3) proper n o t i f i c a t i o n was not given t o a l l doctors involved i n complaints

prior t o 1980, and 4) the Board has used d i s c i p l i n a r y sanctions, l e t t e r s

of reprimand and concern not s p e c i f i c a l l y authorized by law. We recommend

t h a t communication with complainants be improved, t h a t formal hearings

rather than informal interviews be held i n serious cases or when doctors

are uncooperative, and t h a t the Board % e authorized to issue l e t t e r s of

concern. According to the Board ' s a s s i s t a n t Attorney General, the Board

also needs clearer s t a t u t o r y authority to enforce its own orders.

( page 20

Xe found t'nat a few malpractice ac'cions and s e ~ t l e m e n t s had not been

reported t o the Board by insurers as required by law. We recommend that

BOMEX periodically audit compliance by insurers with malpractice reporting

requirements and that penalty provisions be added to A. R. S. $ 32- 1451.02.

( page 36)

Although Board investigations of complaints appear to be thorough, our

analysis of actions taken by the Board revealed t h a t the Board has been

excessively lenient i n its d i s c i p l i n i n g of physicians with multiple

complaints. A s a r e s u l t , the Board has not f u l l y protected the public.

We recommend t h a t the Board adopt d i s c i p l i n a r y guidelines o r t h a t the

Legislature enact statutory penalties for specific violations. ( page 38)

In addition, the Board f a i l e d to properly report possible violations of

State and Federal drug laws by a physician on probation with the Board.

Failure to report such violations could subject members of the Board to

removal from office. ( page 45)

Since 1972, the Board has issued limited licenses to physicians who f a i l

t o pass the Board's licensing examination by a narrow margin. Limited

licenses have been given t o persons practicing i n areas of medical need,

usually r u r a l regions of the State. We found t h a t limited licenses are

not necessary and have been subjected to abuses. Ten l i m i t e d l i c e n s e e s

were granted regular licenses improperly and three limited licensees were

issued second limited licenses improperly. We recommend t h a t limited

licenses be eliminated from the s t a t u t e s . ( page 51)

Finally, we noted that confidential medical records on f i l e a t the Board

are not adequately protected from unauthorized access and review. We

recommend t h a t the Board maintain b e t t e r security over its confidential

records. ( page 63)

INTRODUCTION AND BACKGROUND

The Office of the Auditor General has conducted a performance audit of the

Board of Medical Examiners ( BOMEX), i n response to a January 30, 1980,

resolution of the Joint Legislative Oversight Committee. This performance

audit was conducted as a part of the Sunset review process s e t f o r t h i n

Arizona Revised Statutes ( A. R. s.) § $ 41- 2351 through 41- 2379.

The Board of Medical Examiners, originblly established by t h e Legislature

i n 1913, is responsible for examining and licensing medical doctors i n

Arizona, renewing medical licenses annually and p r o t e c t i n g t h e public from

incompetent and harmful p r a c t i t i o n e r s of medicine. The Board is comprised

of 12 members: nine licensed physicians, two lay members and the

president of the Board of Nursing, who serves as an ex o f f i c i o member.

A l l members, except the Nursing Board president, are appointed by the

Governor.

Board expenditures have increased from $ 293,752 i n f i s c a l year 1976- 77 to

approximately $ 721,000 i n f i s c a l year 1980- 81. The BOMEX workload also

has increased. For example, i n calendar year 1976, 483 regular licenses

were issued by the Board, 264 complaints were reviewed, 85 licensed

doctors were investigated and 26 hearings were held. I n calendar year

1980, 636 licenses were issued ( 32 percent increase from 1976),

311 complaints were reviewed ( 18 percent increase), 205 licensed doctors

were investigated ( 141 percent increase), and 213 hearings were held

( 719 percent increase).

Table 1 contains detailed workload information for calendar years 1976

through 1980.

TABLE 1

BOMEX WORKLOAD MEASURES FROM

CALENDAR YEAR 1976 THROUGH 1980

Licenses Issued

Regular

Temporary

~ i mteid

Com~ laints reviewed

Malpractice actions reviewed

I n v e s t i g a t i o n a l s e r v i c e s

Review of MDs 8 5 124 18 1 20 1 205

Pharmacies surveyed 16 6 2 17 576 499 386

Subpoena and record services 197 274 262 851 1,162

Other i n v e s t i g a t i o n a l s e r v i c e s 102 146 163 144 177

Interviews

Hearings 2 6 100 163 124 2 13

A s a r e s u l t of l e g i s l a t i o n i n 1976, the Board also is responsible for

reviews of malpractice actions. I n 1980, the Board reviewed 299 such

actions.

The Board's full- time equivalent ( FTE) employee s t a f f of 23.5 i n f i s c a l

year 1980- 81 includes four full- time i n v e s t i g a t o r s and three half- time

physician consultants who investigate and review complaints and

malpractice cases. Table 2 contains detailed expenditures and revenues

data for f i s c a l years 1976- 77 through 1980- 81. Ninety percent of

examination and licensing fees collected by the Board are deposited i n a

special Board fund to support its operation.

TABLE 2

BOMEX EXPENDITURES AND REVENUES

FOR FISCAL YEARS 1976- 77 THROUGH 1979- 80

AND ESTIMATES FOR FISCAL YEAR 1980- 81

Fiscal Year

1980- 81

1976- 77 1977- 78 1978- 79 1979- 80 ( Estimated) a

Personal services $ 177,808

Employee related

expenditures 24,109

Professional and

outside services 24,116

Travel :

In- State 11,920

Out- of- State 1,440

Other operating expenses 51,055

Equipment 2,381 - -

Refunds* 923

Total expenditures $- 29- 3,75 2

Total revenues $ 484.461 $ 646.762 $ 599 * 474 $ 542.749 $ 712.722

The Auditor General expresses gratitude t o the employees and members of *

the Board of Medical Examiners f o r t h e i r cooperation, assistance and

consideration during the course of the audit.

* Refunds are generated upon withdrawal of l i c e n s e a p p l i c a t i o n , as

established i n A. R. S. $ 32- 1431.

3

SUNSET FACTORS

Nine f a c t o r s are considered t o determine, i n p a r t , whether the Board of

Medical Examiners should be continued or terminated, i n accordance with

A. R. S. $$ 41- 2351 through 41- 2379.

SUNSET FACTOR: THE OBJECTIVE AND PURPOSE

I N ESTABLISHING THE BOARD

The purpose of the Board is not s t a t e d e x p l i c i t l y i n Arizona law.

According to a Board statement provided during our a u d i t , t h e three

purposes for the Board are:

" 1. To license and regulate doctors of medicine t o

assure t h a t Arizona's physicians are current with

the progress i n medicine.

" 2. To assure that the public health, welfare, and

safety is not endangered due to a licensed

physician's medical incompetence or physical or

mental incapacity, and

" 7. Through the use of d i s c i p l i n e and r e h a b i l i t a t i v e

programs, t o a s s i s t licensed physicians t o

overcome impairments which a f f e c t ( t h e i r ) a b i l i t y

to s a f e l y p r a c t i c e medicine."

SUNSET FACTOR: THE DEGREE TO WHICH THE BOARD

HAS BEEN ABLE TO RESPOND TO THE NEEDS OF THE PUBLIC

AND THE EFFICIENCY WITH WHICH I T HAS OPERATED

Within the scope of our review, January 1, 1979, through June 30, 1980,

the Board appears to have responded t o a l l complaints and has i n i t i a t e d

its own investigations of questionable a c t i v i t i e s o r occurrences i n the

medical community. It also has increased its investigative resources by

hiring physicians to investigate and review complaints. However, further

improvements are needed. ( page 9)

In addition, the Board appears to have operated e f f i c i e n t l y . From 1976 to

1980, the nunber of complaints and malpractice actions received by the

Board increased 131 percent, the scope of its investigations increased and

its expenditures increased a comparable 145 percent.

SUNSET FACTOR: THE EXTENT TO WHICH THE

BOARD HAS OPERATED WITHIN THE PUBLIC INTEREST

I n most cases, the Board has operated within the public i n t e r e s t by

adequately investigating and disposing of complaints and appropriate

examination of physicians p r i o r to licensing. However, some Board actions

appear not to have been s u f f i c i e n t l y stringent regarding doctors with a

history of involvement i n Board complaint and/ or malpractice review.

( page 37

SUNSET FACTOR: THE EXTENT TO WHICH

NLES AND IiSGULATIOTiS PKOBULGA'YED BY THE BOARD

ARE CONSISTENT WITH LEGISLATIVE MANDATE

Our audit did not reveal inconsistencies between Board r u l e s and s t a t u t o r y

mandate. A comprehensive review of Arizona regulatory boards' rules and

regulations is being conducted by the Attorney General; however, no date

has been s e t f o r its completion.

SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD

HAS ENCOURAGED INPUT FROM THE PUBLIC BEFORE

PROMULGATING ITS RULES AND REGULATIONS AND THE

EXTENT TO WHICH I T HAS INFORMED THE PUBLIC AS TO

ITS ACTIONS AND THEIR EXPECTED IMPACT ON THE PUBLIC

Public awareness of the BOXEX is high. Seventy percent of respondents

interviewed as p a r t of a Statewide public opinion survey were aware of the

Board although not a l l of these respondents could s p e c i f i c a l l y name a

function of the Board. Public awareness of BOMEX was the highest among

Arizona health regulatory boards.

In addition, when compared with the e f f o r t s of other regulatory agencies,

the Board appears t o equal or exceed informing the public of its

a c t i v i t i e s . The Board does not, however, notify individual complainants

before holding hearings o r taking d i s c i p l i n a r y action. ( page 21)

SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD

HAS BEEN ABLE TO INVESTIGATE AND RESOLVE

CONPLAINTS THAT ARE WITHIN ITS JURISDICTION

Board i n v e s t i g a t i o n s of patient and physician complaints generally are

thorough and have improved markedly since January 1, 1979. ( page 9)

SUNSET FACTOR: THE EXTENT TO WHICH THE ATTORNEY GENERAL

----

OR ANY OTHER APPLICABLE AGENCY OF STATE GOVERNMENT HAS THE

AUTHORITY TO PROSECUTE ACTIONS UNDER ENABLING LEGISLATION

The authority granted to the Attorney General t o prosecute violations of

Board s t a t u t e s is adequate except t h a t the current law is unclear as to

whether violations of Board orders c o n s t i t u t e grounds f o r d i s c i p l i n a r y

action. ( page 34)

SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD HAS

ADDRESSED DEFICIENCIES I N ITS ENABLING STATUTES

WICH PREVENT I T FROM FULFILLING ITS STATUTORY MANDATE

Since 1978, Board l e g i s l a t i v e proposals have addressed the d e f i n i t i o n of

advertising, continuing medical education requirements and use of hearing

o f f i c e r s . SBllOO ( chapter 45) passed during the 1981 regular l e g i s l a t i v e

session enacted these changes i n t o law.

In May 1981 Board s t a f f completed a d r a f t l e g i s l a t i v e proposal which

includes the following major l e g i s l a t i v e revisions:

- Change i n licensure provisions,

- Elimination of limited licenses,

- Review of procedures and requirements concerning appointment of

Board members,

- Authorization to h i r e special medical consultants and other

i n v e s t i g a t i v e personnel,

- Increased Board member compensation,

- Provision for quarterly meetings,

- Increased f l e x i b i l i t y of the Board's continuing education

requirements,

- Increase in the range of d i s c i p l i n a r y dispositions, and

- Change i n insurer malpractice reporting requirements.

SUNSET FACTOR: THE EXTENT TO WHICH CHANGES ARE

NECESSARY I N THE LAWS OF THE BOARD TO ADEQUATELY

COMPLY WITH THE FACTORS L I S T E D I N T H I S SUBSECTION

Our review determined statutory changes are needed for the Board to comply

adequately with factors in this subsection. ( pages 36, 50 and 61)

FINDING I

- SINCE- J- A - N- U - A - RY - 1, 1979, THE BOARD OF NEDICAL EXfiYTYn? S HAS IMPROVED THE

QUALITY AND THOROUGHNESS OF ITS COMPLAINT INVESTIGATIONS SIGNIFICANTLY.

HOWEVER, SOME CHANGES I N THE CONPLAINT REVIEW PROCESS ARE NEEDED.

Arizona law authorizes the Board of Medical Examiners t o review complaints

against licensed physicians, requires doctors, hospitals and medical

s o c i e t i e s to report offending physicians to the Board, and mandates that

insurers notify the Board of malpractice actions and settlements involving

physicians.

Arizona appears to be superior to most other s t a t e s with regard to

s t a t u t o r y reporting requirements. I n a d d i t i o n , t h e quality and

thoroughness of the Board's review of complaints have improved

s i g n i f i c a n t l y when e f f o r t s i n the f i r s t s i x months of 1980 are compared to

those i n the f i r s t s i x months of 1979.

Our review of Board procedures, however, revealed the following

deficiencies: 1) Board member involvement i n t h e i n v e s t i g a t i o n of

complaints has overburdened some members with complaints and resulted i n

the appearance of p a r t i a l i t y and unnecessary delays, 2) Board contact

with complainants has been i n s u f f i c i e n t , 3) informal interviews have been

used inappropriately, 4) the Board did not notify a l l doctors involved i n

complaints p r i o r to 1980, a s required by law, 5) the Board has imposed

d i s c i p l i n a r y sanctions not s p e c i f i c a l l y authorized i n the s t a t u t e s ,

6) not a l l malpractice actions and settlements have been reported to the

Board a s required by law, and 7) the Board lacks authority i n t h a t

violations of its orders a r e not c l e a r l y established i n the s t a t u t e s as

cause for d i s c i p l i n a r y action.

( I

Autkarity t o I n v e s t i g a t e

Complaints and Malpractice Actions

A. R. S. $ 72- 1451, subsection A, authorizes the Board t o i n v e s t i g a t e

complaints a g a i n s t doctors:

" The board on its own motion may i n v e s t i g a t e any

evidence which appears t o show t h a t a doctor of

medicine i s or may be medically incompetent or is or

may be g u i l t y o f u n p r o f e s s i o n a l conduct o r is or may be

mentally or physically unable s a f e l y t o engage i n the

p r a c t i c e of medicine...."

Further, A. R. S. $ 32- 1451, subsection A , r e q u i r e s doctors, h o s p i t a l s and

medical s o c i e t i e s t o r e p o r t t o the Board incompetent and unsafe doctors:

". .. any doctor of medicine, or the Arizona medical

a s s o c i a t i o n , i n c . , or any component county s o c i e t y

thereof or any h e a l t h care i n s t i t u t i o n a s defined i n

$ 36- 401 s h a l l , and any other person may, report t o the

Board any information such doctor, h e a l t h c a r e

i n s t i t u t i o n , a s s o c i a t i o n , or i n d i v i d u a l may have which

appears t o show t h a t a doctor of medicine is or may be

medically incompetent or is or may be g u i l t y of

unprofessional conduct or is or may be mentally or

physically unable s a f e l y t o engage i n t h e p r a c t i c e of

medicine...."

" Medically incompetent" is defined i n A. R. S. $ 32- 1401, subsection 8, as

follows:

"' Medically incompetent' means lacking i n

s u f f i c i e n t medical knowledge or s k i l l s or both, i n t h a t

f i e l d of p r a c t i c e i n which the physician concerned

engages, to a degree l i k e l y t o endanger the h e a l t h of

h i s p a t i e n t s . "

" Unprofessional conduct" is defined i n A. R. S. $ 32- 1401, s u b s e c t i o n 1 0 , as

including any one of the following a c t s :

" ( a ) Performing or procuring a c r i m i n a l a b o r t i o n or

aiding or a b e t t i n g i n the performing or procuring of a

c r i m i n a l a b o r t i o n .

"( b) Wilful betrayal of a professional s e c r e t or

wilful violation of a privileged communication except

a s e i t h e r of these may otherwise be required by law.

This provision s h a l l not be deemed to prevent members

of the board from the f u l l and f r e e exchange of

information with t h e l i c e n s i n g and d i s c i p l i n a r y boards

of other s t a t e s , t e r r i t o r i e s o r d i s t r i c t s of the United

States or with f o r e i g n c o u n t r i e s or with the Arizona

medical association, inc., or any its component

s o c i e t i e s or with the medical s o c i e t i e s of other

s t a t e s , counties, d i s t r i c t s , t e r r i t o r i e s or with those

of foreign countries.

" ( c) Advertising.*

"( d) Commission of a felony, whether or not

involving moral turpitude, or a misdemeanor involving

moral turpitude. I n e i t h e r case conviction by any

court of competent j u r i s d i c t i o n s h a l l be conclusive

evidence thereof.

"( e) Habitual intemperance i n the use of alcohol.

" ( f ) Habitual use of narcotic or hypnotic drugs or

both.

"( g) Prescribing narcotic or hypnotic drugs or both

for other than accepted therapeutic purposes.

" ( h) Gross malpractice, repeated malpractice or any

malpractice resulting i n the death of a patient.

" ( i ) Impersonation of another doctor of medicine.

"( j) Acting or assuming to a c t as a member of the

board when such is not the f a c t .

"( k) Procuring or attempting to procure [ a basic

science c e r t i f i c a t e or]-^* a license to practice

medicine by fraud, misrepresentation or by knowingly

taking advantage of the mistake of another.

" ( 1) Having professional connection with or lending

one's name to an i l l e g a l p r a c t i t i o n e r of medicine or

any of t h e o t h e r healing a r t s .

" ( m) Representing that a manifestly incurable

d i s e a s e , i n j u r y , ailment or infirmity can be

permanently cured, or that a curable disease, injury,

ailment or infirmity can be cured within a stated time,

i f such is not the f a c t .

* SBllOO ( Chapter 45), enacted during the 1981 regular l e g i s l a t i v e

session, amends subparagraph C to read a s follows: " False,

fraudulent, deceptive or misleading advertising or advertising the

quality of medical services."

** This language was deleted from subparagraph K of SBllOO ( chapter 45)

passed i n 1981.

11

"( n) Offering, undertaking, or agreeing t o cure or

t r e a t a disease, injury, ailment or infirmity by a

s e c r e t means, method, device or instrumentality.

"( 0) Refusing to divulge to the board upon demand

the means, method, device or instrumentality used i n

the treatment of a disease, injury, ailment or

infirmity.

"( p) Giving or receiving, or aiding or abetting the

giving or receiving of rebates, e i t h e r d i r e c t l y or

i n d i r e c t l y .

"( q) Knowingly making any f a l s e or fraudulent

statement, written o r o r a l , i n connection with the

practice of medicine except a s the same may be

necessary f o r accepted therapeutic purposes.

" ( r ) Immorality or misconduct t h a t tends to

d i s c r e d i t the medical profession.

" ( s ) Refusal, revocation or suspension of license by

any other s t a t e , t e r r i t o r y , d i s t r i c t or country, unless

it can be shown t h a t such was not occasioned by reasons

which r e l a t e to the a b i l i t y safely and s k i l l f u l l y to

practice medicine or t o any a c t of unprofessional

conduct herein.

" ( t ) Any conduct o r p r a c t i c e contrary to recognized

standards of e t h i c s of the medical profession or any

conduct o r p r a c t i c e which does or might c o n s t i t u t e a

danger to the health, welfare o r s a f e t y of the patient

or the public, or any conduct, practice or condition

which does or might impair the a b i l i t y , safely and

s k i l l f u l l y t o practice medicine.

"( u) Violating or attempting to v i o l a t e , d i r e c t l y or

i n d i r e c t l y , or a s s i s t i n g i n or abetting the violation

of or conspiring to v i o l a t e any of the provisions of

t h i s chapter."

Finally, the Board is required to review records pertaining t o malpractice

actions f i l e d and settlements made against physicians i n accordance with

A. R. S. $ 72- 1451.02. Insurers must report every action f i l e d and

settlements revealed within 30 days of receipt.

Arizona's complaint and malpractice reporting procedures appear generally

superior t o those i n most other s t a t e s . According to an unpublished

American Bar Foundation study, only 16 s t a t e s require hospitals t o report

doctors who lose t h e i r privileges and only ten require insurers t o report

malpractice cases and settlements.

Quality and Thoroughness of

Complaint Investigation Has Increased

The Board has established the following procedures f o r investigating

complaints:

- A complaint may be received by the Board i n writing or by

telephone. Complaints received by telephone subsequently must be

sent to the Board i n writing.

- Medical records are obtained from the doctor or h e a l t h c a r e

i n s t i t u t i o n . I n addition, the doctor is provided an opportunity

to comment on the allegations.

- A s t a f f physician reviews the medical records and writes a report

on h i s findings.

- The s t a f f physician's report is sent t o a Board member, who

recommends follow- up action, i f any. Follow- up action may

include an investigational interview with the doctor involved, an

informal interview with the doctor by the f u l l Board or a formal

hearing.

- I f the complaint involves drugs, Board i n v e s t i g a t o r s may conduct

a pharmacy survey, which is an audit of the doctor's drug

prescriptions on f i l e a t one or more pharmacies.

- Complaints are reviewed by the Board for f i n a l disposition.

We reviewed a l l complaints on f i l e with BOMEX between January 1, 1979, and

June 30, 1980. During t h i s period, the quality and thoroughness of Board

investigations has improved." Table 3 summarizes percentages of

complaints receiving s t a f f , Eoard member and f u l l Board reviews during the

six- month periods ended June 30, 1979, December 31, 1979, and June 30,

1980.

A s shown i n Table 3, when the six- month period ended June 30, 1979, is

compared to the six- month period ended June 30, 1380, the percentages of

complaints reviewed by 1) Board s t a f f ( usually a physician), 2) a t l e a s t

one Board member, and 3) the f u l l Board before f i n a l disposition

increased s i g n i f i c a n t l y .

* Hospitals and county medical s o c i e t i e s were contacted to determine i f

the Board obtained a l l information on physicians under Board

investigation. Results were inconclusive. ( page 70)

TABLE 3

SUMMARY OF PERCENTAGES OF COMPLAINTS RECEIVING

STAFF, BOARD- MEMBER AND FULL BOARD REVIEWS

DURING THE SIX- MONTH PERIODS ENDED

JUNE 70, 1979, DECEMBER 31, 1979, AND JUNE 30, 1980

Period Complaint Was Received

1- 1- 79 to 7- 1- 79 to 1- 1- 80 to

6- 30- 79 12- 31- 79 6 - 30- 80

Staff review ( usually by

physician)

Board member review

Full board review

In addition, the quality of Board agendas has improved in that BOMEX staff

members now prepare and include summaries of all complaints discussed.

These summaries include the nature and results of any prior complaints and

malpractice actions on file for the subject physician, as well as a

statement of the current complaint before the Board.

Disposition Of Complaints

A. R. S. $ 32- 1451, subsection C, authorizes the Board to render the

following disciplinary action following an informal interview with a

doctor: 1) issue a decree of censure, and 2) place the physician on

probation under conditions, including temporary suspension or restriction

of his license, best adapted to protect the public and rehabilitate the

doctor. Following a formal hearing, the Board may impose the same

penalties and, in addition, may suspend or revoke the doctor's license in

accordance with A. R. S. 532- 1451, subsection L.

Table 4 displays the disposition of complaints received for the period

January 1, 1979, through June 30, 1980, for each type of complaint.

TABLE 4

DISPOSITION OF COMPLAINTS BY TYPE

JANUARY 1, 1979 - JUNE 30, 1980"

D i s c i p l i n a r y Sanction Imposed by t h e Board

Censure/

Complaint No Action** Reprimand*** Probation Suspension - Other - Total q

Fee d i s p u t e

F a i l u r e t o diagnose

Q u a l i t y of care ( harm

caused)

Q u a l i t y of care ( no

harm)

Unnecessarj s e r v i c e s

( e. g., surgery,

t e s t i n g )

Alcohol or drug abuse

by doctor

Overprescribing

n a r c o t i c s / o t h e r drugs

Overprescribing f o r

s e l f and p a t i e n t

Other physical or mental

impairment of doctor

F a i l u r e t o send o r

complete medical record

P r i v i l e g e s suspended by

h o s p i t a l

Unethical behavior

Advertising

Other

* A s of March 14, 1981.

-? x. * The complaint was dismissed o r f i l e d by the Board. Although no

o f f i c i a l d i s c i p l i n a r y a c t i o n was taken, 52 l e t t e r s of advice or

concern were sent t o doctors involved i n complaints. **+ Although the Board may i s s u e a decree of censure, it is not

s p e c i f i c a l l y authorized t o reprimand doctors. See page 31.

The Board dismissed or f i l e d 309 ( 83 percent) of the 373 t o t a l

complaints received, although 52 l e t t e r s of advice or concern were

sent t o the doctors complained against. Nine doctors were

reprimanded or censured, 16 were placed on probation and two were

suspended. The Board imposed d i s c i p l i n a r y sanctions most frequently

i n cases i n which doctors were found to be overprescribing drugs f o r

patients or were themselves involved i n alcohol or drug abuse.

We i d e n t i f i e d 34 complaints which appeared t o have merit i n which

the Board took no action following its investigation. Most of these

were fee disputes or matters involving doctors with no p r i o r history

of complaints on f i l e a t the Board. In the case of fees, the Board

is hesitant to act because its authority and j u r i s d i c t i o n is

unclear. ( page 69) I n the case of physicians with no prior

d i s c i p l i n a r y problems on record, often a l l t h a t is necessary,

according to the ~ o a r d ' s president, is f o r the doctor t o be

contacted by or called before the Board and the matter is solved. A

few BOmX dispositions, however, did not appear appropriate. These

are described i n Finding 11. ( see page 37)

Timeliness Of Review

A s shown i n Table 5, most complaints ( 67 percent) are acted on by

the Board within s i x months of receipt. Final action on some ( 2.5

percent), however, took more than a year.

TABLE 5

PERCENTAGE OF COMPLAINTS

RESOLVED BY ACTUAL TIME:

90 Days

or

@ Complaint Fewer

Fee dispute 6.2%

Quality/ type of care 5.9

Crug s 5.6

Other 7.0

Total zc%

4- 6

Months

7.8%

16.3

7- 0

11.5 ' m

7- 9 10- 12

Months Months

2 - 7% 1 3%

6 - 4 3 92

2- 4 0.8

1.1 2 04

12.6% ~ 7.7$

More

Than

One Year Pendinn

See discussion of Board- member involvement and use of informal interviews

( page 23) for causes of unnecessary delays in resolving complaints.

Board Member Involvement

in the Complaint Process

During the course of a Board investigation, complaints normally are sent

to a Board member for review. The Board member may hold an

investigational interview with the doctor who is the subject of the

complaint, or he may recommend other Board action. The practice of using

Board members as investigators appears to be a carry- over from prior years

when the Board did not have a professional staff of investigators,

resulting in some Board members being overburdened with complaints, the

appearance of partiality and unnecessary complaint processing delays.

The Board's executive director assigns complaints to Board members. In

making assignments, he considers: 1) Board member specialties ( a

complaint involving surgery would be referred to a surgeon), and 2) Board

member abilities and thoroughness. This method of assignment has resulted

in overburdening some Board members with complaints.

During the period January 1, 1979, to June 30, 1980, two physician members

of the Board each investigated 47 complaints, while the remaining five

investigated 38, 33, 32, 23 and 21 complaints respectively." During that

same period, the two public members investigated 22 complaints and 1

complaint respectively and the nurse member did not investigate a

complaint.

It should be noted that complaint investigations are in addition to the

Board's heavy meeting workload. For example, at its three- day quarterly

meeting in March 1981, the Board interviewed 24 doctors, held three

hearings, acted on 57 complaints and 67 malpractice actions, reviewed six

license applications, approved 159 regular licenses and 14 temporary

licenses and addressed several other matters. Despite member- workload

differences, each member receives the same compensation, $ 30 per Board

meeting day plus travel expenses.

* Excludes two Board members who were appointed after January 1, 1979.

Board member involvement in the investigation of complaints may compromise

the appearance of BOMEX impartiality. According to the Legislative

Council in an opinion dated May 14, 1981, individual Board members may be

required to disqualify themselves from proceedings on a complaint if, as a

result of serving as an investigator, they have a bias or prejudice:

" Public officials are presumed to act in good faith,

and it may be a heavy burden to show bias or

prejudice.... Nevertheless, it has been held that a

public officer in a quasijudicial capacity is

disqualified to sit in a proceedings in which there is

a controverted issue as to which he has expressed a

preconceived view, bias or prejudice. The officer must

disqualify himself if he has prejudiced the case or has

given a reasonable appearance of having prejudiced

it.. . . It is fundamental that a quasi judicial tribunal,

similar to a court, must not only be fair, it must

appear to be fair. Only thus can the proceeding meet

the basic requirement of due process.""

Further, the Board's assistant Attorney General stated that Board members

should not be involved in investigations of complaints at all:

" Board members should not serve as complaint

investigators. This adds very little to the review

process. Cases are thoroughly reviewed by the staff

physicians who could hold investigational interviews

with the doctors involved prior to writing their final

report.. . . Using Board members as investigators can

result in abuses...."

The following case examples show how Board member involvement in complaint

investigations can taint the Board's appearance of impartiality or cause

unnecessary delays in the complaint review process.

* See Appendix I for opinion text.

18

CASE I

In February 1979 a BOMEX member filed a complaint with the Board alleging

that substandard surgery had been performed on a four- year- old girl in a

rural county hospital. The complaint was assigned to the same Board

member for investigation. In March 1979, the doctor involved was called

before the Board for an informal interview. At the interview, the Board

member who had filed the complaint and had served as Board investigator

also conducted the inquiry during the interview. Following the interview,

and in accordance with the recommendation of the Board member who made the

investigation, the Board voted to 1) dismiss the complaint, and

2) caution the doctor with regard to his handling of this and similar

cases. The doctor who was the subject of the complaint stated that he has

not been treated in a fair manner by the Board. Involvement of the Board

member who filed the complaint as the complaint investigator gives the

appearance of partiality in this case.

CASE I1

In March 1980, a Board investigator conducting a pharmacy survey

discovered that a doctor had prescribed large amounts of Quaaludes, an

addictive sedative. The complaint was referred to two Board members for

investigation, one of whom was a physician whose office was located in the

same building as that of the physician who was the subject of the

complaint. When the Board member contacted the physician against whom the

complaint was filed to obtain information, the physician objected to the

Board's entire investigation, claimicg that the investigating Board member

was biased against him because of a prior business deal involving , the

building in which their offices were located. Board action on the

complaint was delayed until a second Board member was able to take over

the investigation. The physician against whom the complaint was filed

subsequently left the State. In September 1981, the doctor returned to

Arizona for an informal interview before the Board. Following the

interview, the Board dismissed the complaint with a letter of concern to

the doctor.

CASE I11

A Board i n v e s t i g a t o r conducting pharmacy surveys i n January and February

1980 discovered t h a t a physician was prescribing large amounts of Demerol,

an a d d i c t i v e pain k i l l e r , i n v i o l a t i o n of Federal drug regulations.

Investigation revealed t h a t the physician was addicted to Demerol, and the

prescriptions were for h i s personal use. The case was assigned t o a Board

member, a nonphysician, f o r follow- up investigation. No Board action was

taken u n t i l December 1980, when the personal physician f o r the doctor who

was the subject of the pharmacy survey appeared before the Board and

s t a t e d that h i s patient was i n a drug r e h a b i l i t a t i o n program out- of- State

and, therefore, was unable to appear. The personal physician f o r the

doctor was a former member of BOMEX, and the Board member assigned to

investigate the case admitted taking too long to bring the matter before

the Board.

In an attempt t o enhance the appearance of i m p a r t i a l i t y i n medical board

investigations, some s t a t e s have removed board members from

investigationsl. For example, medical board members i n Michigan,

California and Florida do not conduct complaint investigationsb

Contact with Complainants Is I n s u f f i c i e n t

Letters of acknowledgment and notice of Board decisions are sent to

persons who f i l e a complaint with the Board. Complainants are not

contacted routinely, however, f o r c l a r i f i c a t i o n of t h e i r complaint or

follow- up information. A s a r e s u l t , many complainants a r e d i s s a t i s f i e d

with the Board's lack of communication.

The Office of the Auditor General surveyed doctors and the public a t large

who f i l e d complaints with the Board during the period January 1, 1979 to

June 30, 1980.

Approximately one- third of the public citizens who filed complaints and a

few physician complainants surveyed criticized BOMEX for inadequate

contact and communication with complainants. Lack of contact or knowledge

of Board procedures, furthermore, appears to have resulted in a fairly

widespread dissatisfaction with Board decisions. For example, the

following statements were made by public complainants:

"[ I] filed complaint and all that was ever received was

their decision based on the talk with the doctor."

"[ BOMEX] seemed reluctant to talk about decisions.

Judgement had been made and that was that."

" Other than to tell me the doctor was censured and

educated and that an investigation was made, I was not

advised of events."

"... since I was given no chance to testify in my

behalf, I state the review was unfair, and extremely

partial. The final decision was biased and based on

one- sided testimony. The explanation was simply a

statement by [ the executive director] dismissing my

case with no explanation."

" I was sent freshly typed form responses-- essentially

identical in two different cases. The Board merely

took a look at the doctor's account in his medical file

of the patient. Later, a lawyer found out that the

matter was discussed in private session. The ' open'

session was only a ' formal' vote to approve what had

been decided in private."

" Their answer ' no impropriety was found' indicated that

they had addressed the complaint but merely dismissed

it to get rid of it. I was asked for no information."

A few physicians who filed complaints also claimed they received little

information concerning the investigation and decision- making process. For

example, the following comments were made:

" I do not recall ever hearing from them other than to

acknowledge receipt of the letter."

" These were referred complaints from which we received

little feedback."

According to the Legislative Council, there is no statute or regulation

requiring the Board to take specific investigative steps such as

contacting complainants. However, the Council added that a proper

investigation might include such contact:

" With respect to medical doctors and in context of

A . R. S. $ 532- 1451 and 32- 1452, a ' proper' investigation

by the Board of Medical Examiners might include the

following steps: 1) investigate the source and nature

of the evidence presented bringing the professional

conduct, competence and ability to safely engage in

medical practice of the medic. zl doctor into question.

To this end, the Board could access, for the purpose of

examination, the books and records of the person being

investigated, 2) interview patients of the medical

doctor being investigated and examine their medical

records not withstanding the confidential nature of the

doctor patient relationship.. .3) issue subpoenas, as

necessary, compelling the attendance and testimony of

witnesses or the production of documents relating to

the professional competence of any medical doctor under

investigation....""

Investigators in Florida interview complainants routinely. After a

complaint is assigned to an investigator, he immediately schedules an

interview with the complainant. During the interview, the investigator

will obtain the pertinent facts of the case, a patient release and other

evidence, documentation and names of witnesses the complainant may have to

support the allegation.

According to the BOMEX executive director, the Board does not have

sufficient staff to contact each complainant, as they do in Florida. It

should be noted that the Board has improved its communication process in

that currently complainants are advised more accurately of Board actions.

* See Appendix I1 for the opinion text.

Use of Informal Interviews Has

Been Inappropriate i n Some Cases

Arizona s t a t u t e s provide t h a t the Board may hold e i t h e r an informal

interview or a formal hearing with doctors involved i n complaints. Our

review revealed t h a t the Board holds informal interviews f a r more

frequently than formal hearings i n s p i t e of the f a c t that: 1) several

cases were of a serious enough nature t o warrant a formal hearing, and

21 a physician who is the subject of the complaint may be uncooperative.

By o v e r u t i l i z i n g the informal interview process the Board wastes time and

resources, and delays t h e r e s o l u t i o n of some complaints unnecessarily.

A. R. S. 532- 1451, subsection C , authorizes the Board t o use informal

interviews or formal hearings i n resolving complaints:

" C. I f , i n the opinion of the board, it appears

such information is or may be t r u e , t h e board may

request an informal interview with the doctor

concerned. I f the doctor refuses such i n v i t a t i o n or i f

he accepts the same and i f the r e s u l t s of such

interview indicate suspension or revocation of license

might be i n order, then a complaint s h a l l be issued and

a formal hearing s h a l l be had i n compliance with the

subsequent subsections of t h i s section. I f , a t such

informal interview, together with such mental, physical

or medical competence examination as the board deems

necessary, the board finds the information provided

under subsection A of t h i s section t o be t r u e but not

of s u f f i c i e n t seriousness t o merit suspension or

revocation of license, it may take e i t h e r or both of

the following actions:

" 1. Issue a decree of censure.

" 2. Fix such period and terms of probation best

adapted to p r o t e c t t h e public health and safety and

r e h a b i l i t a t e or educate the doctor concerned. Such

probation, if deemed necessary, may include temporary

suspension o r r e s t r i c t i o n of the doctor's license to

practice medicine. Failure t o comply with any such

probation s h a l l be cause f o r f i l i n g a summons,

complaint and notice of hearing pursuant t o

subsection D of t h i s section based upon the information

considered by the board a t the informal interview and

any other a c t s or conduct alleged to be i n violation of

t h i s chapter or rules and regulations adopted by the

board pursuant to t h i s chapter.

" D. I f , i n the opinion of the board, it appears

such charge is or may be t r u e , the board s h a l l serve on

such doctor a summons and complaint f u l l y s e t t i n g f o r t h

the conduct, i n a b i l i t y or incompetence concerned and

returnable a t a hearing t o be held before the board i n

not l e s s than t h i r t y days therefrom, s t a t i n g the time

and place of such hearing.""

According t o t h e L e g i s l a t i v e Council:

" A formal procedure is characterized by the

a v a i l a b i l i t y of testimonyq of witnesses, stenographic

records, b r i e f s , arguments and findings of f a c t or

opinion. On the other hand, the purpose of an informal

administrative adjudication is to a r r i v e a t decisions

based upon inspection or t o dispose of complaints by

consent or by correspondence ...."

I n most cases, the Board has chosen t o hold informal interviews rather

than formal hearings. During the period January 1, 1979, through June 30,

1980, the Board held 49 informal interviews and four formal hearings.

According t o BOMEX s t a f f , informal interviews save the Board time and

money. Preparing for and conducting formal hearings requires more work

than is involved i n conducting an informal interview. I n addition, Board

members generally prefer holding informal interviews, r a t h e r than formal

proceedings.

According t o a manual published by the National Attorney General

Association, however, a formal hearing should be held rather than an

informal proceeding i f one or more of the following circumstances e x i s t :

"( 1) The Board believes t h a t the complaint is

s u f f i c i e n t l y serious t o require formal

adjudication;

"( 2) The licensee f a i l s t o respond t o the Board's

l e t t e r concerning a complaint and the Board

believes there are s u f f i c i e n t grounds t o j u s t i f y

f u r t h e r action;

* This section was amended i n 1981 by SBllOO ( chapter 45) to allow the

hearing to be held before the Board or a hearing o f f i c e r .

"( 3) The l i c e n s e e ' s response t o the Board's l e t t e r or

i n v e s t i g a t i v e demand does not convince the Board

that no action is necessary; [ or]

"( 4) An informal hearing or conference is held, but

f a i l s t o resolve a l l of the issues."

Further, i n an opinion dated May 21, 1981, the Legislative Council

indicated t h a t a formal hearing should be held i f a doctor is

uncooperative or i f the complaint is of a serious nature:"

"... If the doctor r e f u s e s t h e i n v i t a t i o n t o appear a t

the informal interview or i f the doctor accepts the

i n v i t a t i o n and the r e s u l t s of the interview... indicate

suspension or revocation of license may be i n order,

then a complaint s h a l l be issued and a formal hearing

s h a l l be had... A. R. S. $ 72- 1451, subsection C....

"... Generally, the informal interview process would be

acceptable i f a complaint r e f e r s t o conduct which would

not appear to be s u f f i c i e n t t o warrant suspension or

revocation of a license but could be disposed of by

consent or correspondence. Only i n those cases where

the harsh penalty of suspension or revocation of a

license is possible would a formal hearing, with its

procedures f o r attendance of witnesses, administration

of dates and written findings of f a c t and opinion, be

required. "

It appears t h a t the Board has held informal interviews inappropriately i n

some cases i n which doctors wore uncooperative, and the matters uzder

review were serious i n nature. We i d e n t i f i e d 19 complaints during our

review which involved a serious quality- of- care matter and which appeared

t o have merit based on the Board's i n v e s t i g a t i v e findings. I n nine cases,

the doctor involved was called before the Board f o r an informal

interview. I n one case only was a formal hearing held.

* See Appendix I11 for opinion t e x t .

2 5

The following case examples demonstrate the inappropriate use of informal

interviews:

CASE I

In December 1977, a doctor was admitted t o a psychiatric f a c i l i t y

suffering from an overdose of self- administered meprobamate ( a

t r a n q u i l i z e r ) . The doctor entered i n t o a consent order with BOMEX which

r e s t r i c t e d the doctor from w r i t i n g p r e s c r i p t i o n s f o r controlled substances

and which required continued psychiatric care.

I n October 1980, a Board i n v e s t i g a t o r was informed by the Department of

Public Safety that the doctor was prescribing large amounts of Talwin ( a

p o t e n t i a l l y addictive drug used f o r r e l i e f of pain) f o r a close

r e l a t i v e . A survey of 13 pharmacies found t h a t over an eight- month

period, the doctor had prescribed 58 lOcc v i a l s of Talwin ( 30 mg) and 30

Talwin t a b l e t s ( 50 mg) f o r the r e l a t i v e , and 25 lOcc v i a l s of Talwin

( 30 mg) under the doctor's own name f o r " office use."

In December 1980, the Board scheduled the doctor f o r an informal interview

rather than a formal hearing, despite the doctor's prior history of drug

abuse.

A t the interview the doctor refused t o answer Board questions because

counsel advised the doctor t h a t the proceeding was informal and

voluntary. Thus, the interview was terminated because the doctor w a s

uncooperative.

The Board scheduled a formal hearing on the matter f o r March 1981.

However, before the hearing was held and the Board could take a c t i o n , t h e

doctor was arrested by the Department of Public Safety and charged with

obtaining dangerous drugs by fraud and d e c e i t , i s s u i n g prescriptions

without a Drug Enforcement Administration ( DEA) r e g i s t r a t i o n number and

unprofessional conduct while engaged i n the practice of medicine. The

Board suspended the doctor's license pending the outcome of the criminal

case.

CASE I1

I n June 1980, Bomex i n i t i a t e d an investigation i n t o the medical competence

of a doctor who had f a i l e d t o perform an indicated caesarian section

during the course of an i n f a n t delivery. Although the mother's l i f e was

saved by a doctor who stepped i n to a s s i s t , t h e c h i l d died s h o r t l y a f t e r

birth. BOMEX's i n v e s t i g a t i o n s u b s t a n t i a t e d that the care rendered by the

doctor had been substandard; he was placed on probation a f t e r an informal

interview. Terms of the probation included a requirement t h a t the doctor

take an o r a l competency exam and appear a t the next Board meeting f o r a

probationary interview. The doctor refused t o submit t o the exam,

however, and failed t o appear f o r the probationary interview. The Board

suspended h i s license i n March 3.981.

The doctor had a p r i o r record of complaints and noncooperation with the

Board. In April 1978, a BOMEX i n v e s t i g a t i v e report established t h a t the

doctor had been prescribing large amounts of narcotics and addictive drugs

to known drug addicts and t r a f f i c k e r s . A pharmacy survey conducted i n May

1978 confirmed t h a t large amounts of drugs had been prescribed to a t l e a s t

15 known drug offenders. In July 1978, the Board requested the doctor to

appear f o r an informal interview. The doctor appeared f o r the interview

two months l a t e r and apparently agreed to sign a s t i p u l a t e d agreement

r e s t r i c t i n g him from w r i t i n g p r e s c r i p t i o n s f o r narcotics and other

addictive drugs.

An i n v e s t i g a t i v e report i n November 1978 indicated, however, t h a t the

doctor refused to s i g n t h e s t i p u l a t e d agreement because he wished to

continue writing prescriptions f o r some of the drugs. After f a i l i n g to

get his cooperation i n signing the agreement, the Board requested the

doctor t o appear before the Board for another informal interview. The

doctor claimed he was sick a t the time of the interview, f a i l e d t o appear

and an interview was rescheduled f o r June 1979. That interview never was

held. Instead the Board directed s t a f f to d r a f t a second, l e s s

r e s t r i c t i v e agreement allowing the doctor to prescribe some drugs. The

agreement was signed by the doctor and accepted by the Board i n June 1979,

nine months a f t e r t h e d o c t o r ' s f i r s t appearance before the Board.

CASE I11

In April 1980, the Board requested a doctor t o appear before the Board on

three separate matters: 1) the use of cardiovascular chemotherapy,

2) dispensing drugs a t a naturopathic c l i n i c , and 3) the care and

treatment of an eight- year- old g i r l using vitamins and other drugs which

allegedly had no benefit. The doctor, through h i s attorney i n a l e t t e r t o

the Board dated May 7, 1980, refused the i n v i t a t i o n to appear for an

informal interview on the grounds t h a t the second two matters had been

added to the interview agenda without proper n o t i f i c a t i o n i n accordance

with A. R. S. $ 32- 1451." In a reply to t h e d o c t o r ' s a t t o r n e y , dated May 21,

1980, the Board's associate executive d i r e c t o r wrote the following:

" Please be advised that i f , upon advice of counsel ( the

doctor) f e e l s that he should not discuss the l a t t e r two

matters i n the context of an informal interview, the

Board's only recourse would be to summon the doctor to

a formal hearing."

Although the doctor had refused t o agree t o the informal interview, the

Board requested him to appear for another informal interview a t its

September 1980 meeting. In reply, t h e d o c t o r ' s attorney again refused on

behalf of h i s c l i e n t and challenged the Board to hold a formal hearing:

"... If t h i s is t o be an informal hearing, you are again

put on notice that we decline to have an informal

hearing on these matters... in the event t h a t the

Arizona Board of Medical Examiners ( wishes) to go any

f u r t h e r , it would have to be done on a formal hearing

basis...."

A formal hearing, however, never was held. I n June 1981, the Board

entered i n t o a s t i p u l a t i o n with the doctor, prohibiting h i s use of

cardiovascular chemotherapy and dismissed the other two matters.

* A. R. S. 532- 1451 requires t h a t doctors be notified of complaints

against them within 120 days of receipt by the Board.

CASE I1

In June 1980, Bomex i n i t i a t e d an i n v e s t i g a t i o n i n t o the medical competence

of a doctor who had f a i l e d t o perform an indicated caesarian section

during the course of an infant delivery. Although the mother's l i f e was

saved by a doctor who stepped i n to a s s i s t , the child died shortly a f t e r

b i r t h . BOMEX's i n v e s t i g a t i o n substantiated t h a t the care rendered by the

doctor had been substandard; he was placed on probation a f t e r an informal

interview. Terms of the probation included a requirement t h a t the doctor

take an o r a l competency exam and appear a t the next Board meeting f o r a

probationary interview. The doctor refused t o submit to the exam,

however, and f a i l e d t o appear f o r the probationary interview. The Board

suspended h i s license i n March 1981.

The doctor had a p r i o r record of complaints and noncooperation with the

Board. In April 1978, a BOMEX i n v e s t i g a t i v e report established that the

doctor had been prescribing large amounts of narcotics and addictive drugs

to known drug addicts and t r a f f i c k e r s . A pharmacy survey conducted i n May

1978 confirmed t h a t large amounts of drugs had been prescribed to a t l e a s t

15 known drug offenders. In July 1978, the Board requested the doctor to

appear f o r an informal interview. The doctor appeared f o r the interview

two months l a t e r and apparently agreed t o sign a s t i p u l a t e d agreement

r e s t r i c t i n g him from w r i t i n g p r e s c r i p t i o n s f o r narcotics and other

addictive drugs.

An i n v e s t i g a t i v e report i n November 1978 indicated, however, t h a t the

doctor refused t o s i g n t h e s t i p u l a t e d agreement because he wished to

continue writing prescriptions f o r some of the drugs. After f a i l i n g t o

get his cooperation i n signing the agreement, the Board requested the

doctor to appear before the Board for another informal interview. The

doctor claimed he was sick a t the time of the interview, f a i l e d t o appear

and an interview was rescheduled f o r June 1979. That interview never was

held. Instead the Board directed s t a f f t o d r a f t a second, l e s s

r e s t r i c t i v e agreement allowing the doctor to prescribe some drugs. The

agreement was signed by the doctor and accepted by the Board i n June 1979,

nine months a f t e r the doctor's f i r s t appearance before the Board.

CASE I11

In April 1980, the Board requested a doctor t o appear before the Board on

t h r e e s e p a r a t e matters: 1) the use of cardiovascular chemotherapy,

2) dispensing drugs a t a naturopathic c l i n i c , and 3) the care and

treatment of an eight- year- old g i r l using vitamins and other drugs which

allegedly had no benefit. The doctor, through h i s attorney i n a l e t t e r t o

the Board dated May 7, 1980, refused the i n v i t a t i o n to appear f o r an

informal interview on the grounds that the second two matters had been

added to the interview agenda without proper n o t i f i c a t i o n i n accordance

with A. R. S. $ 32- 1451." In a reply to the doctor's attorney, dated May 21,

1980, the Board's associate executive d i r e c t o r wrote the following:

" Please be advised that i f , upon advice of counsel ( the

doctor) f e e l s t h a t he should not discuss the l a t t e r two

matters i n the context of an infoLmal interview, the

Board's only recourse would be to summon the doctor to

a formal hearing."

Although the doctor had refused t o agree to the informal interview, the

Board requested him to appear for another informal interview a t its

September 1980 meeting. In reply, the doctor's attorney again refused on

behalf of h i s c l i e n t and challenged the Board to hold a formal hearing:

".. . If t h i s is t o be an informal hearing, you are again

put on notice t h a t we decline to have an informal

hearing on these matters... in the event t h a t the

Arizona Board of Medical Examiners ( wishes) t o go any

f u r t h e r , it would have to be done on a formal hearing

basis.. . ."

A formal hearing, however, never was held. I n June 1981, the Board

entered i n t o a s t i p u l a t i o n with the doctor, prohibiting h i s use of

cardiovascular chemotherapy and dismissed the other two matters.

* A. R. S. 532- 1451 requires t h a t doctors be notified of complaints

against them within 120 days of receipt by the Board.

The previous cases appear t o represent matters which should have been

scheduled f o r formal hearings r a t h e r than informal interviews. According

to Board members and s t a f f , one obstacle t o holding formal hearings is

that the Board lacks time to hear cases and does not have hearing o f f i c e r s

to whom t h i s r e s p o n s i b i l i t y could be delegated." I n a 1980 annual report

to the Governor, the two public members of the Board explained the problem:

" Because of the complexities of the problems that come

before the Board, s u b s t a n t i a l time of t h i s Board is

spent with detailed f a c t hearings. This, i n our

judgment, is a waste of the Board's time, e f f o r t and

t a l e n t s , and the work of the Board could be b e t t e r

f a c i l i t a t e d by the use of hearing examiners. We

e n t h u s i a s t i c a l l y endorse hearing examiners and would

ask you a s Governor to support that position with the

Legislature."

In addition, it appears more hearings are not held because the Board's

a s s i s t a n t Attorney General, whom the Board shares with several other

agencies, does not have time t o prepare and conduct many more hearings on

behalf of the Board. Regardless of the reason, the ~ o a r d ' s

o v e r u t i l i z a t i o n of informal interviews causes unnecessary delays i n the

resolution of some complaints and wastes Board time and resources.

Several Doctors Were Not

Properly Notified of Complaints

A. R. S. 532- 1451, subsection A, requires BOMEX to notify doctors when

complaints against them a r e received:

" The board s h a l l notify the doctor about whom such

information has been received a s to the content of such

information within one hundred twenty days of receipt

of such information."

* SB1100 ( Chapter 45), enacted i n 1981, s p e c i f i c a l l y authorizes the

Board to use hearing o f f i c e r s .

During our review of complaints received during the period January 1,

1979, through June 30, 1980, we found ten cases i n which the Board

neglected to notify the doctors involved p r i o r to the Board's f i n a l

decision. A l l ten complaints were received i n 1979.

According to t h e L e g i s l a t i v e Council: 1) actions taken by the Board may

be void i f proper n o t i f i c a t i o n is not given, and 2) Board members could

be held personally l i a b l e .

"... The Board's duty t o notify medical doctors

regarding whose p r a c t i c e a l l e g a t i o n s have been made is

mandatory and ministerial. There is no discretion f o r

the Board t o f a i l to notify all such doctors...

". . . Board investigation procedures r e l a t i n g t o a doctor

who has not been notified of the allegations are void.

Whether or not the Board conducts an i n v e s t i g a t i o n , i f

it does not notify the doctor of the allegations

against him, the members of the Board may be personally

l i a b l e f o r i n j u r i e s to the doctor caused by the Board's

nonfeasance. Nonfeasance i n public o f f i c e is also a

c l a s s 2 misdemeanor.""

A secondary effect of the Board's f a i l u r e t o notify doctors involved i n

complaints properly can cause i l l - f e e l i n g s between the Board and the

physicians it regulates. For example, BOMEX received a l e t t e r i n March

1980 from one of the doctors it f a i l e d t o properly notify:

" I have spoken t o ( a member of the ~ o a r d ) today about

the gross lack of due process t h a t has been afforded me

i n t h i s matter by the Arizona Board of Medical

Examiners and he agrees that there is absolutely no

reason why I was not informed of t h i s matter a t the

e a r l i e s t possible time and t h a t my opinion as to the

merits of any complaint was not solicited."

According to the Board s t a f f , t h i s deficiency was recognized as a problem

and corrective action was taken i n 1980.

* See Appendix I V f o r the opinion t e x t . It should be noted t h a t the

Board's a s s i s t a n t Attorney General maintains t h a t actions taken are

not void i n such cases.

Unauthorized D i s c i ~ l i n e

Used by the Board

As noted on pages 14 and 23, A. R. S. $ 32- 1451, subsections C and L,

authorize the Board t o take four types of d i s c i p l i n a r y action: 1) decree

of censure, 2) probation under such terms which may involve temporary

suspension of l i c e n s e , 3) suspension of l i c e n s e , and 4) revocation of

license.

Our review i n d i c a t e s , however, t h a t the Board has taken a d d i t i o n a l a c t i o n s

not s p e c i f i c a l l y authorized by law. Dispositions of complaints received

during the period January 1, 1979, through June 30, 1980, included f i v e

l e t t e r s of reprimand and 52 l e t t e r s of concern or advice. These

dispositions, although not authorized by law, are matters of public record

retained i n doctors' f i l e s .

According to the Legislative Council, use of l e t t e r s of reprimand and

l e t t e r s of concern are not i n compliance with law:

" There is no e x p l i c i t or i m p l i c i t s t a t u t o r y a u t h o r i t y

f o r the Board to take any d i s c i p l i n a r y a c t i o n against a

medical doctor o t h e r t h a n t h a t s p e c i f i c a l l y permitted

by s t a t u t e . If the Arizona Legislature had intended

for the Board t o have t h e a u t h o r i t y to issue a l e t t e r

of concern or a l e t t e r of reprimand to a medical doctor

instead of i s s u i n g a decree of censure or fixing the

term or conditions of probation, or both, it must be

assumed that it would have so provided ...."

According to t h e L e g i s l a t i v e Council, however, it is not clear whether the

Board may be l i a b l e f o r taking such actions:

" Without knowing the context i n which the Board issues

a l e t t e r of concern or l e t t e r of reprimand and what

e f f e c t , i f any, such d i s c i p l i n a r y actions have on the

professional practice of a medical doctor, it is

impossible t o determine whether the Board would be

l i a b l e f o r taking e i t h e r d i s c i p l i n a r y action....""

* See Appendix V for the opinion t e x t .

3 1

Every Malpractice Action Has

Not Been Reported to BOMEX

Insurance companies which o f f e r malpractice coverage are required by law

to report to the Board within 30 days a l l claims and settlements f i l e d

against insured physicians. Not a l l malpractice actions, however, have

been reported.

A. R. S. $ 32- 1451.02, subsections A and C , s t a t e :

" A. Any insurer providing professional l i a b i l i t y

insurance to a doctor of medicine licensed by the board

of medical examiners pursuant to t h i s chapter s h a l l

report to the board, within t h i r t y days of its r e c e i p t ,

any written or o r a l claim or action f o r damages for

personal i n j u r i e s claimed t o have been caused by an

e r r o r , omission o r negligence i n the performance of

such insured's professional services, or based on a

claimed performance of professional services without

consent or based upon breach of contract f o r

professional services by a doctor of medicine.

" C. Every insurer required to report t o the board

pursuant t o t h i s section s h a l l also be required t o

advise the board of any settlements or judgments

against a doctor of medicine within t h i r t y days a f t e r

such settlement or judgment of any t r i a l court."

The Board is required t o review a l l malpractice reports f i l e d by i n s u r e r s ;

it may take d i s c i p l i n a r y a c t i o n against the doctors involved i n accordance

with A. R. S. $ 32- 1451.02, subsection E:

" E. The board s h a l l i n s t i t u t e procedures for an

annual review of a l l records kept i n accordance with

t h i s chapter i n order to determine whether it s h a l l be

necessary for the board t o take r e h a b i l i t a t i v e or

d i s c i p l i n a r y measures prior t o the renewal of a medical

doctor's license to practice."

We conducted a review of malpractice s u i t s f i l e d i n Arizona courts since

January 1, 1979, to determine i f insurers are reporting to the Board i n

compliance with law. Results of the review, which was limited primarily

to doctors with multiple complaints on f i l e a t BOMEX," revealed that four

malpractice actions and one settlement of $ 1.75 million against a doc t o r

had not been reported to the Board. Further review disclosed that one of

the doctors apparently had no insurance coverage and one s u i t was dropped

before the defendant was served with the s u i t .

In addition, one case appeared to have been reported l a t e , more than a

year a f t e r the s u i t was f i l e d in court. However, l a t e reporting i n t h i s

case apparently was a r e s u l t of the Rules of Civil Procedure i n Arizona,

which permit a p l a i n t i f f up to one year to serve a summons on the

defendant doctor. Rule 6 ( f ) s t a t e s the following:

" Summons and Service, Abatement of Action. An action

s h a l l abate i f the summons is not issued and served, or

the service by publication commenced within one year

from the f i l i n g of the complaint."

Thus, the insurer may not become aware of a s u i t u n t i l the doctor has been

served with the complaint,"" up to one year a f t e r the s u i t is f i l e d .

In two cases we reviewed, it appears the insurance company failed to

report malpractice actions. According to the Legislative Council,

insurers who f a i l to report actions f i l e d or settlements, or report l a t e ,

are not i n compliance with the law. However, the law lacks enforcement

provisions :***

* Twenty- eight doctors who had complaints recorded during the period

January 1, 1979, through June 30, 1980, had a history of a t l e a s t

three complaints on f i l e a t the Board.

** Adding to the delay is a s t a t u t e of limitation which permits the

p l a i n t i f f to wait up to three years before f i l i n g s u i t .

-* See Appendix V I for the opinion text.

" With respect to a l l claims or settlements or judgments

entered against medical doctors from and a f t e r the

e f f e c t i v e d a t e of A. R. S. 532- 1451.02 [ ~ e b r u a r y 27,

19761, the burden on the professional l i a b i l i t y insurer

is clear. The insurer must report the s t a t u t o r i l y

required information i n a timely fashion to BOMEX...."

" The basic problem i n enforcing provisions of A. R. S.

$ 32- 1451.02 is that the s t a t u t e s do not prescribe any

consequences for the f a i l u r e to report. Failure t o

report i n a timely fashion is not even declared to be

unlawful and an offense...."

A s a r e s u l t of noncompliance by insurers with reporting requirements, the

Board is not i n possession of timely important information pertaining to

the physicians it regulates. According to t h e L e g i s l a t i v e Council:

" Failure of professional l i a b i l i t y insurers t o report

claims f i l e d o r settlements on judgments entered

pursuant to A. R. S. $ 32- 1451.02 w i l l hinder the a b i l i t y

of BOMEX to regulate the medical profession a s intended

by the Legislature ...."

To address t h i s problem, BOMEX s t a f f suggested amending current law t o

require insurers to report malpractice actions to the Department of

Insurance, which regulates t h e i n s u r e r s , r a t h e r than t o the Board. The

Department of Insurance then could report t h e a c t i o n s t o BOMEX.

Board Lacks Enforcement Authority

According to the Assistant Attorney General assigned to BOMEX, the Board

lacks c l e a r authority to enforce its own orders. Violation of Board

>

orders is not s p e c i f i c a l l y established i n s t a t u t e as grounds f o r

d i s c i p l i n a r y action. A s a r e s u l t , the Board is unable to f u l l y protect

the public by enforcing Board- ordered r e s t r i c t i o n s and l i m i t a t i o n s on

doctors disciplined by the Board.

For example, in March 1981, the Board summarily suspended a physician who

failed to appear at a probationary interview. The doctor had broken all

terms of his probation order, including the requirement that he take an

oral competency examination. The Board apparently waited until the doctor

failed to appear for his interview before acting on the original violation

because its authority to take immediate action on violations of probation

orders is unclear.

CONCLUSION

The Board of Medical Examiners has improved the quality and thoroughness

of its complaint review process. However, the following deficiencies need

to be addressed: 1) Board member involvement in complaint investigations

has resulted in uneven workloads, conflicts and unnecessary delays,

2) contact with complainants is insufficient, 3) use of informal

interviews has been inappropriate in some cases, 4) unauthorized

discipline has been used by the Board, 5) not all malpractice actions

have been reported to the Board, and 6) the Board lacks clear authority

to enforce its own orders.

RECOMMENDATIONS

Consideration should be given to the following recommendations:

1. Board member involvement in investigation of complaints be

reduced and that investigations be conducted increasingly by

Board staff.

2. Contact and communication with complainants be improved and that

physician and nonphysician complainants be better informed of

BOMEX investigative procedures.

3. Formal hearings be held in all cases in which doctors are

uncooperative with the Board, request formal hearings or are

involved in serious matters which could result in suspension or

revocation of license.

4. Board disciplinary authority be expanded to include letters of

concern.

5. The Board periodically audit compliance by insurers with

malpractice reporting requirements and report noncompliance to

the Department of Insurance.

6. Penalties for noncompliance be added to the provisions of A. R. S.

$ 72- 1451.02.

7. Board statutes be amended to specifically establish violations of

Board orders as grounds for disciplinary action.

FINDING I1

THE BOARD OF MEDICAL EXAMINERS HAS BEEN LENIENT IN ITS DISCIPLINING OF

PHYSICIANS WHO ARE THE SUBJECTS OF MULTIPLE COMPLAINTS.

Arizona statutes confer broad discretionary power on BOMEX with regard to

disciplining physicians guilty of violating State law or Board rules.

However, the Board has not adopted informal guidelines or formal rules to

aid in exercising its discretionary authority. As a result, the Board has

not fulfilled its statutory responsibility to protect the public. Between

January 1979 and June 1980 complaints were filed against 314 individual

physicians licensed by the Board, of whom 28 had at least three complaints

filed against them.

Our review of the disciplinary sanctions imposed by the Board against

these doctors revealed that the Board was lenient in comparison to

disciplinary guidelines in effect in California and statutory penalties

established in Michigan's public health code. In addition, the Board was

lax in its disciplining of a drug- addicted physician and did not

officially report to the proper authorities the physician's possible

violation of State and Federal drug laws.

Board Authority to

Investigate Complaints

As noted on page 10, A. R. S. 572- 1451, subsection A, authorizes the Board

to investigate complaints against the doctors it licenses.

" The board on its own motion may investigate any

evidence which appears to show that a doctor of

medicine is or may be medically incompetent or is or

may be guilty of unprofessional conduct or is or may be

mentally or physically unable safely to engage in the

practice of medicine...."

Board Discipline of Physicians with

Multi~ le Com~ laints Has Been Lenient

From January 1979 to June 1980 the Board received complaints against 314

individual physicians, of whom 28 had at least three complaints on file at

BOMEX, and 17 of whom had at least one substantiated complaint. We

compared the disciplinary action taken by the Board for substantiated

complaints to minimum actions prescribed by two separate criteria:

1. Minimum and maximum penalties for specific

violations based on disciplinary guidelines in

effect in California.*

2. Statutory penalties in effect in Michigan -

Michigan's Public Health code enacted in 1978

contains penalties which must be applied to

specific violations.**

Results of the analysis, shown in Table 6, indicate that the disciplinary

sanctions imposed by the Board for 12 of the 17 physicians with

substantiated complaints was excessively lenient in comparison to minimum

actions prescribed in California guidelines or Michigan statutes.

* These criteria are the basis for proposed disciplinary guidelines

drafted by the Board's Assistant Attorney General for BOMEX review.

The Board did not adopt them.

** Michigan is the only state which has established in law specific

penalties for each type of violation.

Doctor

1

Nature of

Substantiated Complaints*

Prescribing to drug abusers

and medical incompetence

Overprescribing drugs

Inappropriate use of a drug

Overprescribing drugs and

unnecessary surgery ( 2 )

( see Case 111, page 44)

Improper prescribing to

drug a d d i c t s , income tax

evasion and overprescribing

drugs ( 3 separate complaints)

TABLE 6

COPPARISON OF ACTUAL BOARD DISCIP1, IIJE

TO PROPOSED CRITERIA

Actual Board Action Taken Minimum Action Suggested By:

( AS of Karch 1981) California Guidelines Michigan Code Results of Comparison

A s t i p u l a t e d agreement was Probation and suspension Fine or probation Board action was appropriate

siened. Lnter the doctor of l i c e n s e arid l i m i t a t i o n on

was placed on probation. suspension of

License was suspended when l i c e n s e

the doctor broke the terms

of h i s probation.

The doctor was placed on Probation

probation and h i s license

temporarily suspended f o r

60 days.

A l e t t e r of advice was No action

written to the doctor.

The doctor was censured Probation ( two

by the Board. separate terms)

Fine or probation Board action was approprjste

No action Board action was appropriate

Fine or probation, Board action was l e n i e n t

reprimand or f i n e compared to Calif3rnia

and suspension guidelines and Xichigan code

of l i c e n s e

The doctor was placed on A separate term of A f i n e or probation Board action was l e n i e n t

probation f o r improperly probation f o r each of the f o r prescribing compared to California

prescribing t o dmg a d d i c i t s , three v i o l a t i o n s to drug addicts and guidelines

censured for income tax overprescribing

evasion, and reprimanded f o r drugs. Michigan code

overprescribing drugs. does not s p e c i f i c a l l y

address income tax

evasion

6 Sexual misconduct with a minor The doctor was reprimanded. Probation

7 Overprescribing drugs ( 3) The doctor was placed on Probation and

probation. suspension of l i c e n s e

8 Overprescribing drugs and The doctor was placed on Probation ( two

medical incompetence probation f o r overprescribing separate terms)

( see Case 11, page 43) drugs. No action was taken

on complairit involving

medical incompetence.

Board action was l e n i e n t

compared to California

guidelines

Fine or probation Board action was l e n i e n t

and suspension compared to California

of l i c e n s e guidelines and Michigan code

Probation and Board action was l e n i e n t

l i m i t a t i o n o r compared to California

suspension of guidelines and Michigan code

l i c e n s e

* Number of complaints are i n parenthesis i f more than one of same type.

** Michigan code contains no s p e c i f i c reference to these types of

Nature of Actual Board Action Taken

Ooc tor Substantiated Complnints* ( As of March 1981)

9 Unprol'esslonal and une t h i c a l The doctor was placed on

behavior ( 2) excessive fees, probation once, censured

unnecessary t e s t i n g , and h i s major surgery

unnecessary ourgery and privileges were suspended.

medical iricomyetence

( nee Case I, page 41)

Minimum Action Stleeested By:

California Guide1 i nes Michigan Code Results of Comparison

Two terms of probation, Fine or probation, Board action was l e n i e n t

suspension of license reprimand and compared to California

suspension of guidelines and Michigan code

l i c e n s e

10 Medical inconpetence ( 3) The doctor wss ordered to Probation and

discontinue major abdominal l i m i t a t i o n of p r i v i l e g e s

surgery and to seek

consultation prior to

other surgery.

11 Improperly prescribing The doctor was placed on Probation ( three

r. mphetamines, unprofessional probation twice and censured. separate terms)

conduct and overprescribing

drugs

12 Overprescribing drugs The doctor was sent a l e t t e r Probation

of concern.

17 Overprescribing drugs The doctor was placed on Probation

probation.

14 Overprescribing drugs The doctor was censured. Probation

and unethical behavior

A.

c

15 Excessive fees The doctor was reprimanded. Probation***

16 Charging f o r t r a n s f e r of Three l e t t e r s of concern Probation and

records ( 3) were written to the doctor. suspension of license*""

17 Unprofessional conduct, The doctor was censured Suspension of license***

f a i l u r e to provide t e s t four times and placed on

r e s u l t s ( 2), f a i l u r e to probation.

complete insurance forms,

f a i l u r e to provide

records( 2) and over-prescribing

amphetamines

* Number of complaints a r e i n parenthesis i f more than one of same

type. ** Michigan code contains no s p e c i f i c reference tb these types of

violations.

*** C a l i f o r n i a g u i d e l i n e s do not s p e c i f i c a l l y address a l l v i o l a t i o n s i n

these cases. Minimum action is based on proposed Board guidelines,

which were modeled a f t e r C a l i f o r n i a ' s and drafted by the Board's

a s s i s t a n t Attorney General. A s of October 1, 1981, t h e s e g u i d e l i n e s

had not been adopted by the Board.

Limitation of l i c e n s e Board a c t i o n was l e n i e n t

followed by compared to Xichigan code

suspension

Fine or probation Board action was appropriate

( twice) and reprimand

Fine or probation Board action was l e n i e n t

compared to California

guidelines and Michigan code

Fine or probation Board action was appropriate

Fine or probation board action was l e n i e n t

compared to California

guidelines and Michigan code

Board action was l e n i e n t

compared to Board guidelines

Board action was l e n i e n t

compared to Board guidelines

Board action was l e n i e n t

compared to Board guidelines

Several Board members, staff and others who have been involved with BOMEX

agreed that in some cases the Board has been too lax in its discipline and

has not taken appropriate action. For example, the following statement

was made by a physician and former member of the Board:

" I believe the board has too often been too lenient and

too forgiving of proven incompetent or unethical

physicians.... The board has too often been reluctant to

act against bad doctors - and if the allegedlg bad

doctor shows up at BOMEX with a forceful lawyer, the

Board often rolls over and foregoes any meaningful

discipline."

The following are examples of cases in which the Board appears to have

been too lenient.

Case I

The doctor was the subject of numerous complaints on file at the Board and

many of the facts surrounding his early involvement with the Board are

unavailable. Between April 1958 and August 1980, 22 complaints about him

were received by the Board. In October 1966 the doctor was accused of

unprofessional acts involving three female patients. In 1967, the doctor

was accused of lying, charging excessive fees and double- billing

patients. In 1968, the doctor was censured by the Arizona Medical

Association for unprofessional and unethical behavior and double- billing

procedures involving Medicare.

Board Action

The Board placed the doctor on probation following his censure by the

Arizona Medical Association in 1968. Two investigations by the Board in

1969 and 1970 suggested poor patient care by the doctor.

Between 1970 and 1976, the doctor was accused of violating the terns of

his probation, and was charged with substandard patient care and

unprofessional conduct.

Board Action

There is no evidence t h a t the allegations were substantiated and no action

was taken by BOMEX.

In 1977, the doctor was accused of unethical conduct involving anonymous

notes sent to patients of other doctors. The notes c r i t i c i z e d t h e q u a l i t y

of care the doctors were providing and suggested that malpractice s u i t s be

f i l e d against them. The notes were traced to a typewriter which had been

i n the doctor's office.

Board Action

Following its investigation of the matter, the Board censured the doctor.

In 1979 the doctor again was accused of medical incompetence and charging

excessive fees. Board i n v e s t i g a t o r s documented cases of unnecessary

laboratory work and surgery, including several unnecessary appendectomies.

Board Action

In 1980 the Board r e s t r i c t e d the doctor from performing major surgery,

issued a formal complaint and charged the doctor with unprofessional

conduct and medical incompetence. In June 1981, the Board amended its

formal complaint against the doctor to include additional matters, and i n

September 1981 the Board ordered a summary suspension of the doctor's

license and scheduled a formal hearing. Final Board action was pending as

of October 1, 1981.

Comment

The Board f a i l e d t o take appropriate d i s c i p l i n a r y a c t i o n a g a i n s t t h e

doctor despite numerous substantiated violations. Minimum action

suggested by the California guidelines and Michigan code would be

suspension of license much sooner than September 1981.

CASE I1

I n April 1980, the Board received a complaint against a doctor who already

was on probation f o r over- prescribing drugs. The complaint alleged that

he was medically incompetent.

I n v e s t i g a t i v e Findings

A BOMEX s t a f f physician reviewed ten of t h e d o c t o r ' s cases, including one

which resulted i n the death of a newborn infant. The doctor was called i n

to a s s i s t i n t h e d e l i v e r y of the baby, who had developed a prolapsed

umbilical cord. According to a BOMEX i n v e s t i g a t i v e r e p o r t , t h e baby was

l i s t e d as nonviable ( incapable of independent existence) on the mother's

chart. However, statements from several nurses indicated t h a t the baby

had a 60 beat- per- minute heartbeat which l a t e r rose t o 140

beats- per- minute. The doctor placed an oxygen tube d i r e c t l y i n t o the

baby's endotracheal tube leading i n t o the lungs, causing the baby's lungs

t o " blow up" and explode. The s t a f f physician who reviewed the case noted

t h a t none of the e f f o r t s t o r e s u s c i t a t e the child had been recorded i n the

hospital record, i n d i c a t i n g t h e p o s s i b i l i t y of a cover- up," and t h a t the

doctor's d i r e c t use of oxygen was " a severe e r r o r i n judgment with a f a t a l

result." Following a review of a l l ten cases, the s t a f f physician

concluded t h a t there was s u f f i c i e n t evidence suggesting medical

incompetence and unprofessional conduct.

Board Action

I n September 1980, the Board voted t o f i l e the complaint and took no

action against the doctor.

* The alleged cover- up was reported t o the county s h e r i f f ' s department

a f t e r questions were raised by audit s t a f f a s t o whether the alleged

cover- up had been reported to appropriate a u t h o r i t i e s .

Comment

The Board f a i l e d t o take d i s c i p l i n a r y a c t i o n on the doctor d e s p i t e : 1 ) a

medical i n v e s t i g a t i o n ' s f i n d i n g s t h a t the doctor made a severe e r r o r i n

judgment, and 2) the doctor was already on probation f o r o t h e r v i o l a t i o n s .

CASE I11

On December 5, 1979, a h o s p i t a l reported t h a t a doctor had been placed on

probation by the hospital.* It was alleged t h a t t h e doctor had performed

unnecessary and r i s k y diagnostic procedures ( cardiac c a t h e t e r i z a t i o n s ) ,

had provided incompetent c a r e , was d e f i c i e n t i n medical knowledge,

maintained inadequate medical records and cared f o r too many p a t i e n t s a t

the same time. Several of t h e d o c t o r ' s p a t i e n t s had died. The same

doctor had been the s u b j e c t of f i v e p r i o r complaints f i l e d with the Board,

I n v e s t i g a t i v e Findings

After an extensive review of p a t i e n t records, a BOMEX medical consultant

reported the following conclusions:

"( 1) The i n d i c a t i o n s f o r cardiac c a t h e t e r i z a t i o n s a r e

frequently marginal, and it would appear t h e r e

is an over use of the invasive diagnostic

procedures.

" ( 2) There a r e too many r i g h t h e a r t c a t h e t e r i z a t i o n s .

"( 3) There is no i n d i c a t i o n t h a t t h e information

obtained [ from the c a t h e t e r i z a t i o n procedure] is

put t o use f o r the care of the p a t i e n t .

"( 4) There is no documentation of t h e complications

which occurred during the c a t h e t e r i z a t i o n

procedures.

"( 5) There is a d e f i n i t e lack of s o p h i s t i c a t i o n of

the c a r d i a c e v a l u a t i o n of the p a t i e n t s ,

evaluations a r e o f t e n s u p e r f i c i a l , b r i e f and

incomplete, and t h e r e i s a very r e a l question as

t o how much cardiology ( t h e doctor) r e a l l y

knows.. . .

* The h o s p i t a l eventually revoked the d o c t o r ' s h o s p i t a l p r i v i l e g e s .

44

Board Action

In March 1980, the Board required the doctor t o submit t o an o r a l

competency examination, which he passed. He also entered a training

program to correct h i s deficiencies. In December 1980 the doctor was

censured a f t e r the Board found him: 1) g u i l t y of poor judgment i n patient

management and selection of p a t i e n t s f o r c a t h e t e r i z a t i o n s , and

2) deficient i n maintaining adequate records.

Comment

The doctor is f r e e t o apply f o r privileges and to practice medicine i n

other Arizona h o s p i t a l s , d e s p i t e t h e f a c t t h a t he was found to be a

dangerous practitioner. Minimum action suggested by t h e C a l i f o r n i a

guidelines and the Michigan code would have been a term of probation.

Board Failed t o Discipline

Drug Abuser Properly

In April 1979 a physician reported t o the Board t h a t a doctor was

self- administering and abusing the drugs Demerol ( an addictive pain

k i l l e r ) and Talwin. A t an investigational interview, the doctor admitted

his drug usage and, i n September 1979, was placed on probation. Terms of

probation required the doctor to: 1) discontinue self- administering

drugs, 2) surrender h i s drug enforcement c e r t i f i c a t i o n authorizing him to

obtain or prescribe c e r t a i n controlled substances, and 3) continue under

the care and treatment of a p s y c h i a t r i s t .

In December 1980 it was found t h a t the doctor again was abusing drugs,

including amphetamines, Valium," L i b r i m ( a sedative) and Talwin. The

Board continued h i s probation s i n c e t h e doctor had admitted himself t o an

i n s t i t u t i o n f o r treatment, but f u r t h e r r e s t r i c t e d h i s prescription- writing

privileges. A check by a BOMEX i n v e s t i g a t o r i n January 1981 confirmed

that the doctor had surrendered h i s c e r t i f i c a t e of r e g i s t r a t i o n f o r

Federally c l a s s i f i e d drugs.

* A drug used i n the treatment of anxiety and tension which has

potential f o r physical and psychological dependence.

I n March 1981, BONEX discovered t h a t the doctor was obtaining controlled

substances from various drug salesmen who had v i s i t e d h i s office. It was

determined t h a t i n February 1981 the doctor had obtained 48 half- ounce

b o t t l e s of tussend expectorant cough syrup and 60 Darvocet- N 100 mg.

t a b l e t s , both Federally c l a s s i f i e d substances. A subsequent investigation

established t h a t the doctor had obtained drugs on seven d i f f e r e n t

occasions a f t e r he had l o s t h i s drug privileges.

A t the Board's meeting i n March 1981 the doctor admitted obtaining the 48

b o t t l e s of tussend expectorant and t h a t he took some of the cough syrup

for an alleged sinus condition. When questioned f u r t h e r by a Board

member, the doctor also admitted taking Darvon. The doctor agreed t h a t he

had slipped i n h i s r e h a b i l i t a t o n program, but claimed he still was making

progress i n h i s attempt t o stop using drugs. However, another Board

member accused the doctor of being devious:

" It looks l i k e you were trying to outwit us o r maybe

you're just trying t o confront us. I heard you i n here

three months ago making g r e a t p r o t e s t a t i o n s about how

you had r e l i g i o n and how you had no more problems and

then I hear about you getting... 48 b o t t l e s of a

substance well known t o be sought a f t e r by addicts."

However, the Board took no f u r t h e r d i s c i p l i n a r y a c t i o n other than to

require continued treatment of h i s drug problem and daily biological f l u i d

testing.

It appears the doctor may have violated Federal and S t a t e law by obtaining

controlled substances i n February 1981 without proper authorization. In

an opinion dated May 21, 1981, t h e L e g i s l a t i v e Council s t a t e d the

following:

" T i t l e 21, United States Code section 801 e t seq.

r e l a t e s to the prevention and control of drug abuse.

21 U. S. C. section 812 lists several drugs or other

substances, l i s t e d under the heading of scheduled

drugs, which are defined as controlled substances and

subject to federal law.

" Federal law provides that every person who

manufactures, d i s t r i b u t e s or dispenses any controlled

substance or who proposes to engage i n the manufacture,

d i s t r i b u t i o n or dispensing of any controlled substance

s h a l l annually r e g i s t e r with the United States attorney

general according to rules and regulations promulgated

by him. 21 U. S. C. section 822. Pursuant to 21 U. S. C.

section 824, the United States attorney general may

revoke or suspend t h e r e g i s t r a t i o n of a person upon

c e r t a i n findings. Federal law prohibits a person from

knowingly or i n t e n t i o n a l l y acquiring or obtaining

possession of a controlled substance by

misrepresentation, fraud, forgery, deception or

subterfuge. 21 U. S. C. section 843. I n addition, it is

a federal violation for any person t o knowingly or

i n t e n t i o n a l l y possess a controlled substance except i f

obtained with a valid prescription or i f the person

possesses a valid r e g i s t r a t i o n statement. 21 U. S. C.

section 844. Knowledge of the presence of a narcotic,

control over it and power to produce or dispose of the

narcotic c o n s t i t u t e s elements of t h i s offense. Amaya

v. U. S., 373 F. 2d 197 ( 1967).

" Under Arizona law, a person who knowingly possesses a

narcotic drug except upon a w r i t t e n p r e s c r i p t i o n by an

authorized person is g u i l t y of a class 4 felony. To be

found g u i l t y of such a crime, a person must have

physical or constructive possession of a narcotic with

actual knowledg- e of the Dresence of the narcotic A

substance. S t a t e v. Donovan, 116 Ariz. 209, 568 P. 2d

1107 ( App. 1977) ."*

According to Legislative Council, the Board should have reported

officially** t h i s possible violation of S t a t e and Federal laws to an

appropriate law enforcement agency:

* See Appendix V I I f o r opinion text. " Although a Board i n v e s t i g a t o r informally mentioned the case t o a DEA

agent, it was not reported o f f i c i a l l y t o the S t a t e Attorney General,

the county attorney or the county s h e r i f f .

" One purpose of establishing a board of medical

examiners is to p r o t e c t t h e public against those

doctors who are medically incompetent, g u i l t y of

unprofessional conduct or mentally or physically unable

t o safely engage i n t h e p r a c t i c e of medicine. Arizona

Revised S t a t u t e s ( A. R. s.) section 32- 1451. Thus, there

is a duty upon members of the board t o inform law

enforcement agencies i f they have a good f a i t h belief

t h a t a medical doctor may have violated f e d e r a l or

s t a t e law r e l a t i n g t o i l l e g a l l y obtaining a narcotic.

This view is f u r t h e r reinforced s i n c e t h e action i n

question has a d i r e c t bearing upon the q u a l i f i c a t i o n s

of a person to practice medicice i n t h i s state."

According t o Legislative Council, f a i l u r e of the Board to report

violations of law may be grounds f o r removal of Board members:

" A. R. S. section 32- 1402, subsection C,

paragraph 1 s t a t e s :

" A member of the board, a f t e r notice and a

hearing before the governor, may be removed upon a

finding by the governor of continued neglect of

duty, incompetence, or unprofessional or

dishonorable conduct, i n which event such member's

term s h a l l end upon such finding.

" This section prescribes s t a t u t o r y a u t h o r i t y f o r

removal of a member of the board f o r continued neglect

of duty, incompetence or unprofessional or dishonorable

conduct. Arguably a f a i l u r e by the members of the

board from informing law enforcement o f f i c i a l s about a

possible violation of s t a t e or federal law is grounds

for removal from office. However, t h i s determination

could only occur upon a finding, a f t e r notice and a

hearing, by the governor.

" In addition, it is a c l a s s 2 misdemeanor f o r a

public o f f i c e r to knowingly f a i l to perform a duty t o

the public. A . R . S . section 38- 443."

Finally, the Board appears to have been remiss in: 1) f a i l i n g to hold a

formal hearing on the matter, and 2) f a i l i n g t o take f u r t h e r d i s c i p l i n a r y

action a g a i n s t t h e doctor a t its March 1981 meeting. According to

Legislative Council, the Board is required t o hold a hearing and take

appropriate d i s c i p l i n a r y a c t i o n i f a doctor on probation violates the

conditions of h i s probation:"

" Under A. R. S. section 32- 1451, subsection C ,

paragraph 2, the board may place a doctor on probation

and :

" Failure [ of a doctor] to comply with any such

probation s h a l l be cause f o r f i l i n g a summons,

complaint and notice of hearing pursuant to

subsection D of t h i s section based upon the

information considered by the board a t the

informal interview and any other a c t s or conduct

alleged to be i n violation of t h i s chapter o r

rules and regulations adopted by the board

pursuant t o t h i s chapter.

" A. R. S. section 32- 1451, subsection D requires the

board t o conduct a complete hearing if the board

believes t h a t a charge of medical incompetence,

i n a b i l i t y t o perform or unprofessional conduct by a

doctor is or may be true. Therefore, according to the

provisions of A. R. S. section 32- 1451, subsection C ,

paragraph2, f a i l u r e to comply with probation

requirements imposed by the board is grounds f o r

triggering the hearing procedure mandated by A . R. S.

section 32- 1451, subsection D."

In the cases cited above, the Board apparently has not taken appropriate

disciplinary action. In some cases the Board gave a doctor multiple

opportunities to reform. A s noted on page!?, the Board views

r e h a b i l i t a t i o n of impaired physicians as one of its purposes. I n other

cases, the Board appears to have exercised leniency on advice of its

a s s i s t a n t Attorney General and i n response t o the p o s s i b i l i t y of legal

challenge by the doctor involved.**

* The Board's a s s i s t a n t Attorney General maintains t h a t these matters

are within the Board's discretionary powers.

** Despite the Board's reluctance t o impose s t r i c t d i s c i p l i n e , t h e r e are

no recent cases of Board d i s c i p l i n a r y a c t i o n overturned by the courts.

CONCLUSION

Current laws confer on the Board of Medical Examiners broad discretionary

power with regard to d i s c i p l i n e , and the Board has no informal guidelines

or formal rules to aid it i n making d i s c i p l i n a r y decisions. I n the case

of 12 doctors with multiple complaints on f i l e a t BOMEX, the Board appears

to have been excessively lenient i n imposing its d i s c i p l i n e when compared

to d i s c i p l i n a r y guidelines i n e f f e c t i n California and s t a t u t o r y p e n a l t i e s

contained i n Michigan's public health code. In a d d i t i o n , t h e Board did

not o f f i c i a l l y report possible violations of State and Federal drug laws

by a physician who has been abusing drugs, and it did not appear t o take

appropriate d i s c i p l i n a r y a c t i o n following t h e d o c t o r ' s violation of

probation. A s a r e s u l t , the Board has not f u l f i l l e d its s t a t u t o r y

r e s p o n s i b i l i t y to p r o t e c t t h e public.

RECOMMENDATIONS

Consideration should be given to the following recommendations:

1. The Board develop and adopt d i s c i p l i n a r y guidelines s e t t i n g out

appropriate dispositions f o r s p e c i f i c violations.

2. I f the Board f a i l s t o develop such guidelines, then the

Legislature should consider reducing the Board's broad

discretionary power i n d i s c i p l i n a r y matters by prescribing

specific s t a t u t o r y penalties.

FINDING I11

THE GRANTING OF LIMITED LICENSES HAS BEEN SUBJECTED TO ABUSES AND APPEARS

TO BE UNNECESSARY.

Arizona law permits BOMEX t o issue limited licenses to practice medicine

to applicants who f a i l the Board's examination by a margin of five

percentage points or l e s s . Limited licensees must serve areas i n medical

need, usually r u r a l regions of the Sta; e. However, because areas of need

are not defined i n s t a t u t e o r regulation, assignment of limited licensees

has a t times been a r b i t r a r y . Since 1972, the Board has granted 94 limited

licenses. Our review found t h a t : 1 ) t e n l i m i t e d l i c e n s e e s were granted

regular licenses improperly, based on a supplemental o r a l examination,

and 2) t h r e e l i m i t e d l i c e n s e e s were issued a second limited license i n

apparent violation of law. Furthermore, some limited licensees have

questionable records and may be endangering public health, welfare and

safety. The granting of limited licenses appears unnecessary i n t h a t most

other s t a t e s do not grant limited licenses and Arizona's county medical

s o c i e t i e s object to them.

Authority t o Grant Limited Licenses

A. R. S. $ 32- 1425.02, subsection B, authorizes the Board to grant limited

licenses to applicants who lack one or more of four requirements f o r a

regular license :

" B. A limited license may be granted by the board t o

an applicant otherwise qualified f o r r e g u l a r l i c e n s u r e

except f o r one or more of the following:

" 1. I f he is a foreign graduate and does not hold the

standard permanent c e r t i f i c a t e of the educational

council f o r foreign medical graduates or its equivalent.

" 2. I f he has not completed the required approved

internship or post graduate training.

" 3. I f he has not obtained citizenship i n the United

States but is taking every action provided by law t o

become a c i t i z e n . The board immediately s h a l l revoke

h i s license t o practice medicine i n the event the

physician's f i n a l p e t i t i o n f o r n a t u r a l i z a t i o n is

denied, and, a f t e r hearing, s h a l l revoke such license

i f it appears a f t e r a reasonable time that such

physician has not secured or is not d i l i g e n t l y

attempting to secure h i s c e r t i f i c a t e of citizenship.

" 4. I f he has f a i l e d the written examination of the

board with a weighted grade average of not l e s s than

seventy percent."* ( Emphasis added)

The Board may assign limited licensees t o areas i n need of health

p r a c t i t i o n e r s , i n accordance with A. R. S. $ 32- 1425.02, subsection C.

" C. The board s h a l l a t l e a s t annually review a l l

information made available t o it to determine the

g r e a t e s t need f o r location of health p r a c t i t i o n e r s i n

t h i s s t a t e and s h a l l assign limited l i c e n t i a t e s i n the

order of the greater need f o r the greater number of

possible r e c i p i e n t s of health care." ( ~ m ~ h a saidsd ed)

Between June 1972 and August 1980, the Board has issued 94 limited

licenses. Table 7 summarizes the number of limited licenses by county as

of August 15, 1980.

* A. R. S. $ 32- 1428, subsection F, requires an average score of 75 percent

and not l e s s than 50 percent i n any one subject to pass the licensing

exam.

TABLE 7

SUMMARY OF THE NUMBER OF LIMITED LICENSES

AS OF AUGUST 15, 1980

C ountv Number

Apache

Cochise

Coconino

Gila

Graham

Greenlee

Maricopa

Mohave

Navajo

Pima

Pinal

Santa Cruz

Y avapai

Y uma

Total

A s shown i n Table 7, a high proportion of the limited licenses has been

assigned to nonmetropolitan counties.

Areas of need are not defined i n law or regulation. The Board has

i d e n t i f i e d areas of need by contacting Arizona's county medical s o c i e t i e s

and by determining, through review of the medical directory published

annually by the Board, which areas lacked licensed physicians. This

process has resulted i n determinations of areas of need t h a t have been a t

times a r b i t r a r y . For example, 30 l i m i t e d l i c e n s e s have been issued i n

Maricopa County to provide doctors f o r such f a c i l i t i e s as Maricopa County

General Hospital, Arizona S t a t e Hospital and the Veterans Administration

Hospital; and three limited licenses were issued f o r Peoria, one f o r Mesa

and one for a s p e c i a l i s t i n spinal cord injury a t Good Samaritan Hospital

i n Phoenix.

Regular Licenses Improperly

Granted to Limited Licensees

A. R. S. 532- 1425.02, subsections D and E, provide that the holder of a

limited license may be issued a regular license upon passing the ~ oard's

written examination with a grade of 75 percent or more:

" D. A limited license shall be issued for a period of

not less than three years nc; r more than five years

during which Deriod the licentiate shall obtain United

States citizenship or complete the written examinations

of the board with a grade average of seventy- five

percent or more." ( Emphasis eided)

We identified ten limited licensees who took the Board's written

examination and failed it, but were issued regular licenses on the basis

of an oral examination administered by the Board. The oral examination,

taken on a pass- fail basis before a panel of two physicians, was used to

supplement the licensee's score on the written examination. Of the ten

doctors granted a license in this manner, one had failed the Board's

written examination three times, and two oral examinations, before finally

being granted a regular license. According to Legislative Council, the

practice of offering limited license holders oral examinations to

supplement written examinations is not in compliance with A . R. S.

$ 32- 1425.02-

"... if statutory language is plain and unambiguous, it

must be given effect.. . applying this rule of statutory

construction to A. R. S. $ 32- 1425.02, subsection D, it is

clear that the method for a limited licensee to obtain

a re~ ular license to ~ ractice medicine in this state is

to take a written examination from the board and

receive a score of 75 percent or more.

"... no provision is made in this subsection for the

Board to give a limited licensee an oral examination.

If the Legislature intended to give the Board this

option, they would have specifically stated so in the

statutes.. .. "* (~ m~ hasiasdd ed)

* See Appendix VIII for opinion text.

54

According to Legislative Council, the v a l i d i t y of t h e r e g u l a r licenses

issued on the basis of supplemental o r a l examinations could be questioned:

" Some courts hold t h a t vested r i g h t s may preclude

revocation of a license i n t h i s s i t u a t i o n . I f a valid

license is issued and a person makes expenditures upon

such l i c e n s e , some courts hold t h a t the licensee has a

vested r i g h t i n such license and the s t a t e cannot

revoke it unless t h e l i c e n s e e commits an a c t which

subjects him t o revocation pursuant to s t a t u t e .

" However, o t h e r c o u r t s hold t h a t a permit issued under

a mistake of f a c t or i n violation of law confers no

vested right or privilege on the person t o whom the

license has been issued even i f the person a c t s upon it

and makes expenditures i n reliance on the license. - B& H

Investments Inc. v. City of C o r a l v i l l e , 209 N. W. 2d

115 ( Iowa 1973).

" We cannot predict how a court would a c t i f the license

of a person issued under the f a c t s a s presented to us

was subject to question because of the improper manner

i n which it was issued. Certainly, the a c t s of the

board i n violation of the s t a t u t e r a i s e grave questions

about the v a l i d i t v of such licenses." ( Emvhasis added)

Use of supplemental o r a l exams for limited licensees was f i r s t recommended

to the Board by its former executive d i r e c t o r i n February 1975, c i t i n g

four doctors who had been given o r a l examinations a s a precedent.

However, it should be noted t h a t none of these four had been limited

license holders and a l l had applied f o r r e g u l a r l i c e n s u r e under separate

provisions of the s t a t u t e s which are governed by d i f f e r e n t requirements

than those applicable to limited licensees.

The Issuance of More Than One Limited

License Is Not i n Compliance with Law

Limited licenses may be issued for a period not l e s s than three years nor

more than f i v e years, i n accordance with A. R. S. s32- 1425.02,

subsection D. However, we i d e n t i f i e d t h r e e limited licensees who were

granted new limited licenses by the Board because t h e i r original limited

licenses were scheduled to expire. However, according t o t h e L e g i s l a t i v e

Council i n an opinion dated May 21, 1981, the Board does not have the

authority to issue new limited licenses t o doctors whose o r i g i n a l limited

licenses have expired:

" There is no authority i n the s t a t u t e s f o r the board to

issue a new l i m i t e d l i c e n s e t o a medical doctor whose

o r i g i n a l limited license has expired. Clearly the

i n t e n t of the l e g i s l a t u r e i n enacting A. R. S.

$ 32- 1425.02 was t o allow the board t o temporarily

authorize c e r t a i n persons who show a minimal level of

medical competence but lack c e r t a i n other requirements

to practice medicine i n t h i s s t a t e and thereby relieve

the shortage of doctors i n medically underserved

areas. Under the l e g i s l a t i v e scheme, the person is

allowed t o practice medicine under close observation

and evaluation while he attempts t o f u l f i l l those

requirements which he lacks i n order t o achieve f u l l

s t a t u s as a medical doctor. Furthermore, - the

l e g i s l a t u r e has afforded the person an adequate period

of time, from three to f i v e years, i n which to a t t a i n

these requirements. A. R. S. 532- 1425.02 subsection D

and F.

" Therefore, based upon t h i s l e g i s l a t i v e plan, - the

l e g i s l a t u r e did not intend that the board issue a new u-limited

license to those individuals who could not meet

the statutorv reauirements to be licensed as a medical - - - - L

doctor during the period of time i n which they had a

limited license. However, you may wish to recommend

that the l e g i s l a t u r e c l a r i f y t h i s area to s p e c i f i c a l l y

s t a t e whether or not they intend t h a t the board issue a

renewable limited license."" ( ~ m ~ h a saidsd ed)

It should be noted that the Board's a s s i s t a n t Attorney General has advised

the Board t h a t the s t a t u t o r y language i n question permits successive

limited licenses.

The Board, i n its most recent limited l i c e n s e a c t i o n of March 1981,

granted a new limited license t o a doctor i n a small Northern Arizona

community.

A review of records on f i l e a t BOMEX r a i s e s questions about the competency

of t h i s and another doctor whose limited licenses were renewed by the

Board. The following cases summarize complaints and Board action

involving these two doctors.

* See Appendix I X f o r opinion t e x t .

56

CASE I

From April 1977 t o January 1981 BOIilEX received e i g h t complaints and

reviewed t h r e e malpractice s u i t s involving one of the doctors, a

s p e c i a l i s t i n o b s t e t r i c s and gynecology ( OB/ GYN). I n 1977 the h o s p i t a l i n

which the doctor practiced placed f i i t n on probation due t o substandard

p a t i e n t care. I n Xay 1978, following a s t a f f i n v e s t i g a t i o n , a formal

complaint was issued by t h e Board, charging the d o c t o r w i t h medical

incompetence and unprofessional conduct. The doctor was accused of:

1) performing f i v e unnecessary caesarian s e c t i o n s , 2) improperly

performing two amniotomies, 3) f a i l i n g t o monitor f e t a l h e a r t tones,

4) f a i l u r e t o d e t e c t a p e l v i c abnormality, 5) wrongly refusing to

t r a n s f e r an infected h o s p i t a l p a t i e n t t o an i s o l a t e d a r e a , 6) improperly

p r e s c r i b i n g a n t i b i o t i c s on multiple occasions, 7 ) performing two

unsuccessful vasectomy operations, and 8) f a i l i n g t o document p a t i e n t

medical records properly. Following a formal hearing by the Board, the

doctor was ordered t o undergo 20 hours of t r a i n i n g i n the use of

a n t i b i o t i c s and t o improve h i s record keeping.

I n December 1980, the doctor again was brought before the Board t o d i s c u s s

two other matters. Board i n v e s t i g a t o r s found t h a t the doctor had

committed a " s i g n i f i c a n t judgmental e r r o r " i n f a i l i n g t o diagnose an

ectopic ( t u b a l ) pregnancy and had repaired a n i n g u i n a l hernia i n a

medically incompetent manner. The doctor was reprimanded by the Board and

ordered t o discontinue performing hernia operations.

I n January 1981, a physician a t t h e h o s p i t a l i n which t h e doctor practiced

submitted t o t h e Board s e v e r a l of h i s o b s t e t r i c a l cases covering the f i r s t

s i x months of 1980. The cases, according t o the complaining physician,

exhibited " a c o n s i s t e n t l a c k of good medical judgment." However, the

doctor, who was not e l i g i b l e f o r a regular l i c e n s e because he f a i l e d the

Board's l i c e n s i n g exam on t h r e e occasions, and whose limited l i c e n s e was

due t o expire, was issued a new limited l i c e n s e by the Board i n March 1981.

CASE I1

In June 1979 the chief of s t a f f of a regional medical center wrote t o the

Board questioning the medical competence of a limited licensee who had

been working at the f a c i l i t y . Shortly a f t e r h i s a r r i v a l at the f a c i l i t y ,

according t o the l e t t e r of complaint, the doctor's management of pediatric

cases was found to be " t o t a l l y unacceptable," and his p e d i a t r i c p r i v i l e g e s

were removed. Although i n i t i a l l y permitted t o perform D and C s ( d i l a t i o n

and curetage) under supervision, h i s supervisors decided he was incapable

of performing the procedure and removed those privileges. According to

the chief of s t a f f , the doctor was the subject of several special meetings

of the i n t e n s i v e c a r e , t h e medical records and the medical practices

committees of t h e h o s p i t a l . The doctor had admitted p a t i e n t s t o the

intensive care u n i t with myocardial i n f a r c t i o n s ( h e a r t a t t a c k s ) and had

not attended t o them f o r several days, although medical records allegedly

were altered to make it appear the patients had been seen. The complaint

added t h a t the doctor was deficient i n h i s understanding of physiology and

pathology.

In August 1979 the doctor was given an o r a l competency examination by the

Board and passed on a conditional b a s i s . The examiners reported that the

doctor could handle t h e v a s t majority of nonemergency routine o f f i c e

problems, but was deficient i n the knowledge of basic sciences and the

a b i l i t y t o handle c r i t i c a l care matters. It was recommended t h a t the

doctor undertake an educational program to address h i s deficiencies. The

Board did not follow up on the recommendation of the examiners, but issued

a second limited license to the doctor i n September 1980.

In addition t o possibly endangering the public h e a l t h , t h e i s s u i n g of new

licenses to the doctors i n both cases described also resulted i n strained

r e l a t i o n s between the Board and the physicians and medical f a c i l i t i e s i n

the counties affected.

Two Other Limited Licensees

Have Presented Problems

Two other physicians issued limited licenses by BOMEX a l s o appear t o have

been problem p r a c t i t i o n e r s . Unlike the previous two cases, neither of

these doctors has yet come before the Board f o r a license renewal. One of

the two physicians was reported i n July 1976 for performing risky and

unnecessary cardiovascular t e s t i n g and surgery. A second complaint i n

September 1976 alleged that the doctor had improperly performed an

operation, stripping the veins from the legs of a 76- year- old patient.

The operation l e f t the patient half- crippled. I n December 1976 the Board

placed the doctor on probation and required him to seek independent

medical consultation before performing invasive diagnostic procedures

( such a s angiograms and arteriograms), h i a t a l hernia repairs and

cardiovascular or vascular surgerJ. The doctor also was required to

undergo r e t r a i n i n g i n vascular and g a s t r o i n t e s t i n a l surgery.

Another limited licensee was reported t o the Board i n May 1980 by a nurse

who alleged that the doctor was g u i l t y of extensive financial impropriety,

t h a t he had deserted h i s practice and abandoned h i s patients. According

to the complaint, the doctor owed money t o several c r e d i t o r s , including

professional a s s o c i a t e s , wrote thousands of d o l l a r s i n bad checks and

double- billed f o r services. The doctor's h o s p i t a l p r i v i l e g e s had been

r e s t r i c t e d , based on concerns over h i s performing unnecessary surgery and

h i s diagnostic and surgical s k i l l s . The Board's i n v e s t i g a t i o n of the

matter was pending as of October 1, 1981. According to the Board, the

investigation still is pending because the doctor did not leave an easy

t r a i l to follow. He has been i n California, Ohio, Texas and now appears

to be i n Europe. The doctor's f l i g h t has made it d i f f i c u l t to serve a

summons and complaint, which is necessary f o r a hearing.

Most States Do Not Offer Limited Licenses

A review of the medical s t a t u t e s of other s t a t e s revealed t h a t only two

s t a t e s have a specific limited license provision similar t o ~ r i z o n a ' s .

Arkansas issues temporary licenses i n " areas of c r i t i c a l medical

shortage, " and Georgia offers a provisional license r e s t r i c t e d t o specific

geographic l o c a l i t i e s .

Several s t a t e s , including Washington, Oregon and I l l i n o i s , o f f e r limited

or temporary licenses to permit doctors to practice i n i n s t i t u t i o n s such

as prisons and s t a t e mental hospitals. According t o an o f f i c i a l of the

American Medical Association, the practice of issuing limited licenses

f o s t e r s a dual standard of medical care. Even i n those s t a t e s which

r e s t r i c t limited licenses to s t a t e i n s t i t u t i o n s , the limited license

generally is granted only when the i n s t i t u t i o n is unable to r e c r u i t a

physician with an u n r e s t r i c t e d l i c e n s e t o f i l l the position.

County Medical Societies Claim

Limited Licenses Are Unnecessary

In November 1980 BOMEX wrote to a l l county medical s o c i e t i e s i n Arizona t o

s o l i c i t t h e i r opinions regarding the need f o r limited licenses i n t h e i r

areas. Eight of the ten counties responding to the survey claimed there

is no need f o r new limited licenses i n t h e i r j u r i s d i c t i o n s a t t h i s time.

Five s o c i e t i e s , moreover, s p e c i f i c a l l y questioned the need f o r such

licenses a t a l l . For example, the following comments were made:

" We do not f e e l t h a t i n the ( foreseeable) future

considering the increasing output of t h i s country's

medical schools and the increasing saturation of

medical p r a c t i t i o n e r s i n the c i t i e s of Arizona that a

limited licensure provision need necessarily be

continued f o r any areas of the state."

"... the concept of limited licensed p r a c t i t i o n e r s

should be abandoned since an abundance of physicians i n

general are now available to serve our county ...."

" . . . it is our belief that i s s u i n g l i m i t e d l i c e n s e s

could f o s t e r second c l a s s medical care and we question

the need f o r limited licensing i n the state."

Thus, most county s o c i e t i e s e i t h e r expressed no current need f o r limited

licenses or s p e c i f i c a l l y recommended t h e i r elimination from the s t a t u t e s .

The Board supports elimination of limited licenses and has included t h i s

change i n t o proposed s t a t u t o r y changes f o r the next regular l e g i s l a t i v e

session.

CONCLUSION

Our review found that ten limited licensees were improperly issued regular

licenses based on a supplemental oral examination and that three licensees

were issued a second limited license in apparent violation of State law.

Some limited licensees appear to have been problem practitioners.

Most other states do not offer limited licenses and most Arizona county

medical societies do not feel there is a need for limited license holders

in their jurisdictions.

RECOMMENDATION

It is recommended that no new limited licenses be granted, and provisions

for a limited license be eliminated from the statutes. Under this

recommendation, current limited licenses would be valid until their

expiration or until the license holder is properly granted a regular

license.

FINDING IV

CONFIDENTIAL BOMEX RECORDS ARE NOT ADEQUATELY PROTECTED FROM UNAUTHORIZED

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AC