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