Cross-Examination

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Illustration by Michael Gellatly | Photography by Mirelle Inglefield | Historical photos provided by Arizona Historical Society

What happens when doctors break bad? Our writer takes you inside the disciplinary process at the Arizona Medical Board.

The moment Dr. James Gillard called to order the Arizona Medical Board’s February meeting, he set in motion two days of gripping human drama. The board members wrestled with the case of a Valley otolaryngologist, and the sincerity of his “spiritual awakening” after beating heroin addiction. They judged the culpability of an OB-GYN whose patient died after ingesting fistfuls of antidepressants. They considered whether a surgeon’s child custody battle mitigated his decision to leave an operation early to pick up his kids from the movies. And several times, they weighed tearful testimony from families against impassioned pleas from doctors that their patients left the hospital in good health.

“Both sides seemed compelling and… both sides seemed to have sufficient evidence to support their case,” board member Dr. Gary Figge said of one case.

“You might have to decide whom you’re going to believe,” chief medical consultant Dr. William Wolf responded.

Who knew such knotty ethical dilemmas lay behind the regulation of Arizona physicians?

To put together the Top Doctors issue every year, PHOENIX magazine consults the Arizona Medical Board (AMB) website to ensure none of the nominated doctors has a current disciplinary action against them. Anyone can search the site (azmd.gov), and for most physicians, you’ll see a clean slate. But for a few, you’ll read terms like “Letter of Reprimand,” “Probation” and “Practice Restriction.”

The legalese can spark even more questions: Is this doctor incompetent or did they fail to cross their t’s on a form? Is the medical board a bunch of rubber-stampers and wrist-slappers, or do they thoroughly investigate each claim? Can a doctor who commits egregious errors simply move to another state and practice scot-free? And how do medical board actions relate to malpractice suits? We set out to pull back the curtain.

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In 1913, Arizona established a board that would giveth and taketh away medical licenses, plus protect the public by regulating and educating physicians. It comprises eight physicians and four public members – currently two nurses, an attorney and the president of a health care company – who apply online and are appointed by the governor to a five-year term.

Three things might surprise you about the board. First, the positions are considered voluntary, with only a nominal payment of $250 per meeting day and a flat rate of $150 per meeting day for review time. That’s remarkable considering the volume of work involved. “The work is time-consuming,” says executive director Patricia McSorley, an attorney. “Case files are voluminous, sometimes containing thousands of pages” – everything from medical imaging to interviews with patients to screenshots of Facebook conversations. Why do they do it? “The motivation… is one of service to the community,” McSorley says. “For physicians, the additional motivation is to serve their profession and help improve the medical profession in Arizona.”

Surgeons perform knee surgery at the Arizona State Prison Hospital, circa 1920s; Photo courtesy Arizona Historical Society
Surgeons perform knee surgery at the Arizona State Prison Hospital, circa 1920s; Photo courtesy Arizona Historical Society

Also surprising is the board’s transparency. The public is welcome to pop into their in-person meetings, held every other month, and to watch live videos of their in-person and telephonic meetings. Perhaps most surprising is how fascinating these meetings are. To get a feel for the board’s deliberations, consider the cases of Dr. Alpen Patel and Dr. D., who both underwent formal interviews for potential disciplinary actions during the February meeting.

“I don’t remember a case that displayed such flagrant abuse of the doctor-patient relationship. Nor do I remember a case that [so] shocked my conscience,” vice chair Dr. R. Screven Farmer said of Patel during the February hearing.

In 2016 and 2017, otolaryngology resident Patel – a 2012 graduate of the University of Arizona College of Medicine – repeatedly tested positive for heroin, oxycodone and other opioids. He prescribed patients thousands of opioids outside the scope of his practice and failed to properly document the incidents. He was dismissed from his residency program and entered into three successive “interim practice restrictions” that prevented him from practicing while he got treatment for addiction. He repeatedly claimed he was clean, but hair and urine tests revealed he was lying.

At Pine Grove rehabilitation facility in Mississippi, Patel “had a spiritual awakening,” he told the board. “At that point, I surrendered to my faith, my higher power.” He said he’d been sober for 13 months and “I want nothing more than to restart my medical career… I have firm conviction and purpose to lead a clean and sober life and to move in the right direction.” He requested the board consider ending his probation at 36 months instead of five years if he remained compliant.

Arizona State Medical Board building; Photo by Mirelle Inglefield
Arizona State Medical Board building; Photo by Mirelle Inglefield

Farmer grilled him: “You are surely aware… there’s an opioid crisis in the state?”

“Correct,” Patel replied.

“So you are telling me that you prescribed opioids on a continuing basis, and when there’s press statewide so that probably every citizen of the state is aware that opioid prescribing is a problem, I’m having a hard time understanding how you would think that you didn’t have to document [this].”

Farmer questioned the depth of Patel’s spiritual awakening and asked if it included a commitment to truth and transparency. When he said yes, Farmer segued into the personal statement Patel sent along with his recent applications to more than 100 residency programs. “I have read that personal statement,” Farmer said, “and it leaves out a huge portion of the story and the investigation… Is that, in your view, totally forthcoming and honest?”

The board’s in-depth investigation had also turned up Facebook conversations with a woman Patel met in rehab and prescribed opioids. According to the screenshots, Patel told her he’d been red-flagged, so he couldn’t prescribe her more drugs, but she could try an urgent care or “otherwise, street.” The woman also testified to the board that Patel allegedly threatened her about revealing information and called her a “f—ing rat.”

Board member Dr. David Beyer questioned whether Patel’s lies and outbursts were “part of the addiction” – character defects that might heal if he stayed clean for several years – or symptoms of his true nature. To gain insight, board members asked staff investigators to clarify whether his behavior had altered since becoming sober. A staff attorney referred them to Pine Grove’s assessment, which stated that though Patel was sober, some of his dubious traits persisted, and they were skeptical that he “really understood the gravity of the actions.”

So instead of granting Patel’s requests, Farmer concluded, “I can’t conceive, given that our duty is to protect the public, that this physician should have a license… I’d never want him showing up taking care of my family.” The board referred Patel for further proceedings to potentially revoke his license.

Contrast that with the case of Dr. D. In 2012, the OB-GYN began treating a patient, B.C., for pelvic pain. He saw her on and off for two years, prescribing opioid painkillers and antidepressants. Drug screens showed substances present in her body that Dr. D. had not prescribed. In 2014, a pharmacy informed Dr. D. that B.C. was filling a panoply of prescriptions. Since 2011, she’d had 91 other prescribers – various physicians from around Arizona. Dr. D. confronted her, and she stopped getting scripts from all the other doctors – but he continued prescribing the drugs. In November 2015, B.C. was found dead with high doses of amitriptyline, an antidepressant, in her body.

“I don’t believe I killed B.C.,” Dr. D. insisted to the board. He testified that between the time she filled her prescription for 180 amitriptyline and the day she died, she should reasonably have taken 22 pills, leaving approximately 160. When the police arrived, they found only 51 pills in the bottle. There was no oxycodone in her residence, and her fentanyl levels were within therapeutic range.

Enterprising Dr. Ralph Fleetwood Palmer, the ``Doctor on horseback`` (also the name of a book he wrote), was among the first medical doctors to be licensed in the State of Arizona; Photo courtesy Arizona Historical Society
Enterprising Dr. Ralph Fleetwood Palmer, the “Doctor on horseback“ (also the name of a book he wrote), was among the first medical doctors to be licensed in the State of Arizona; Photo courtesy Arizona Historical Society

Dr. D. outlined the exhaustive changes he’d made in his practice since the incident, including opioid addiction and suicide risk assessment, more robust pain contracts, and enhanced care coordination with the patients’ primary care physicians. He told the board he now personally reads all the toxicology reports, and he apologized for delegating that responsibility to staff in the past. He said he now confronts patients at every visit if the toxicology reports don’t match expectations. In addition, he’s taken 493 hours of continued medical education (CME) in the last eight years.

Board members asked why he continued to prescribe drugs to B.C. and other patients who’d exhibited signs of substance abuse. “I believe in having a Christian attitude toward patients,” Dr. D. said. “It’s always been my desire to try to modify people’s behavior as opposed to kicking them out, because I believe that when you terminate a patient summarily, it’s highly likely they’ll just repeat the same behavior down the street.”

The board agreed Dr. D. was sincere and that there was a “realistic possibility” the patient had intentionally overdosed due to no fault of the doctor. They decided to issue Dr. D. an advisory letter – a nondisciplinary action typically given when there is not enough evidence that the doctor fell below the standard of care, and/or when the infraction is minor, such as improper documentation.

Until this past year, the AMB’s website indicated when an advisory letter had been issued. But doing so made “a nondisciplinary action almost disciplinary,” chairman Gillard said. So the public can no longer see advisory letters on the website, though they can obtain that information by calling. However, if the board orders a physician to get CME, that does appear on the site. Gillard convinced the other board members not to order CME for Dr. D., since he’d already educated himself, and it didn’t seem fair to punish him in the eyes of the public for prescription practices that were common in 2012, before the opioid crisis exploded. For that reason, we have also chosen not to reveal his name.

Medical malpractice lawyer Cory Tyszka in her Downtown Phoenix office; Photo by Mirelle Inglefield
Medical malpractice lawyer Cory Tyszka in her Downtown Phoenix office; Photo by Mirelle Inglefield

Unlike an advisory letter, a letter of reprimand is disciplinary and indicates the physician has violated the law. Consider the case of Dr. Michael Fitzmaurice, a general surgeon who appeared before the board on February 4, 2019. During the public commentary portion, an irate patient came forth saying the surgeon had permanently severed a nerve during wrist surgery. She noted that Fitzmaurice had received a letter of reprimand in 2014 for operating on the wrong finger of another patient. And she pointed out that other patients had complaints against him. Indeed, the board was addressing three other complaints about the doctor at the time – that he’d recommended unnecessary testing or surgery, and that he failed to notice his staff accidentally prescribed a patient an addictive narcotic painkiller instead of an anti-inflammatory steroid, possibly because the names of both drugs started with the letter M. The board issued another letter of reprimand.

In another case, Dr. Scott Edwards – an orthopedic surgeon who had received an advisory letter two years ago for leaving a surgery before it was completed – was called before the board for again leaving an operation early, this time to pick up his children from the movies. He told the board the procedure had been delayed multiple times, he couldn’t reach his children or his wife by phone, his friends weren’t available, and he was in the midst of a difficult custody battle, so if he’d left his kids alone, it would have been used against him.

“There was a perfect storm, if you will, giving me a situation where I had an impossible decision to make: I had to choose between my job and my kids,” he told the board.

“That bothers me a lot,” Beyer responded. “Because I really see this as a choice between your children and your patient. It’s not about you.”

That refrain echoed throughout the meeting: It’s about the patient. It’s about keeping the public safe.

Though no apparent harm resulted from the surgeon’s early departure, the board issued a letter of reprimand. Farmer reasoned that since the advisory letter hadn’t driven the point home, perhaps a disciplinary action would.

During the meeting, the board also considered two doctors with out-of-state licenses. One had no prior disciplinary actions and presented positive letters of recommendation, so they granted him a license to practice in Arizona. The other doctor practices out of state but also holds an Arizona license. The Missouri Medical Board had given him a letter of reprimand when his staff prescribed testosterone cream in his name after his Drug Enforcement Administration certificate had expired. “Our statutes require us to address any action another state has taken [against a physician],” Gillard noted. When a doctor holds simultaneous licenses, the AMB can mirror, upgrade or downgrade another state’s sanctions. In this case, the AMB decided it was an administrative error, so they dismissed the case.

In more severe circumstances, the board may issue a letter of reprimand along with probation for months or years. Sometimes a doctor on probation can practice with restrictions; other times their license may be temporarily suspended. The doctor may have to take CME or be prohibited from consuming alcohol or other substances. In addition, a physician may voluntarily surrender their license; this is a disciplinary consent agreement similar to a settlement. In the last two fiscal years, 29 licenses have been either revoked or surrendered.

But how do the board’s actions relate to malpractice? In some instances, a doctor can be sued for malpractice and be investigated by the medical board simultaneously. Or a case could begin as a malpractice suit, then be brought to the medical board if a settlement is reached or if there’s a judgment against the doctor. But typically, complaints are brought quickly to the medical board, while lawsuits are often presented on the brink of the statute of limitations (two years after the underlying incident), and the cases can take years, says Cory Tyszka, a medical malpractice defense attorney at Jones, Skelton & Hochuli in Phoenix.

According to the Medscape Malpractice Report of 2017, the doctors who get sued most are surgeons and OB-GYNs or women’s health physicians (see sidebar). “You can’t predict what’s going to happen in surgery,” Tyszka says. “Sometimes doctors get sued when there are known risks to a procedure and, due to no fault of the doctor, a patient suffers one of those known risks, and they will sue because understandably they’re upset.”

Radiology, No. 7 on Medscape’s list, is also “a challenging specialty,” Tyszka says, “because they’re looking for something in particular, and if there’s an incidental finding they didn’t see because they were focused on something else, they could have some difficulty. And then of course, it’s in a picture… that we can now all plainly see.”

Emergency medicine doctors are also in the top 10 most sued specialties. However, because they must make split-second decisions with limited information, there is a higher standard of proof for showing ER doctors or on-call ER physicians caused a complication.

To prevent frivolous lawsuits, Arizona has a statutory scheme requiring a medical expert in the same specialty as the defendant to show that the claim has merit. What the expert must determine – and what the jury must decide if it goes to trial – is whether the doctor met the standard of care. “The standard of care is not perfection,” Tyszka says. “It’s about what a reasonable and prudent physician would do under same or similar circumstances in the state of Arizona. And you are supposed to evaluate the standard of care standing in their shoes at the time they’re providing the care. In a lawsuit, we have the benefit of hindsight, and hindsight is always 20-20. So the jury is supposed to be saying, ‘What did the doctor know at the time?’”

Determining that requires an in-depth investigation, similar to the AMB’s investigations, which include expert input, interviews, images and more. That’s what Tyszka finds fascinating. “These cases are all about intricacies,” she says. “I just love learning the medicine and exploring that with our clients and our experts and getting to really dig deep into the minutiae.”

She also loves helping physicians, because for every heroin-addicted over-prescriber or nerve-severing surgeon, there are thousands of sincere, talented doctors who are dedicated to serving their patients. “I personally feel that doctors provide such a valuable service to our community, and they are some of the most revered members of society,” she says. “So for me, it’s rewarding to be able to help them, kind of like giving back.”

Malpractice Magnets

Medscape, a medical news site, surveyed 4,000-plus physicians across more than 25 specialties and identified the top 10 most sued specialties:

(Tie) 1. Surgery

(Tie) 1. OB-GYN and Women’s Health

3. Otolaryngology

4. Urology

5. Orthopedics

6. Plastic Surgery/Aesthetic Medicine

7. Radiology

8. Emergency Medicine

9. Gastroenterology

10. Anesthesiology

Discipline Cases

Which medical specialties are most prone to discipline and censuring by the Arizona Medical Board? PHOENIX crunched the numbers by comparing the total number of doctors who are practicing – and have practiced – in a given specialty against the number of doctors with actions on their record in that field.

1. Addiction Medicine

Actions per 100 providers: 17 

Perhaps unsurprisingly, the specialties most closely tied to pharmaceuticals top this list – starting with addiction medicine itself.

2. Geriatric Medicine

Actions per 100 providers: 11.9

Saddled with palliative duties and an often-ailing patient base, geriatric care providers face a minefield of potential complaints and missteps.

3. Pain Medicine

Actions per 100 providers: 10.1

Over-prescriptions and overdoses bedevil the pain medicine specialty.

Addendum: Plastic surgery (8.7) and hand surgery (7.6) round out the Top 5, respectively. Pathology (1.4) had the lowest rate of actions among the major specialties.

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