BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of the Petition for Interim Order of Suspension:

KIMBERLY KIRCHMEYER, Executive Director, Medical Board

of California, Petitioner,

vs.

ANTHONY HORAN, M.D., Respondent

Case No. 800-2017-033645

OAH No.·2019060631

DECISION ANO ORDER ON PETITION FOR INTERIM SUSPENSION

ORDER

Marcie Larson, Administrative Law Judge, Office of Administrative Hearings

(OAH), State of California, heard this matter on July 17, 2019, in Sacramento, California.

Michael C. Brummel, Deputy Attorney General, appeared on behalf of petitioner

Kimberly Kirchmeyer, Executive Director of the Medical Board of California (Board).

Respondent Anthony Horan, M.D. appeared at the hearing and represented

himself.

Oral and documentary evi~ence was received. The record was closed and the

matter was submitted for decision on July 17, 2019.

SUMMARY OF DECISION

Petitioner filed the Petition seeking an Interim Suspension Order (ISO) against

respondent under Government Code section 11529, based upon allegations that

respondent has neuropsychological deficits impacting primarily frontal lobes/ '

executive functions, and as a result, is unable to safely practice medicine. The

declarations and documents petitioner submitted demonstrate there is a reasonable

probability that petitioner will prevail in the underlying action based upon respondent - -

having physical and/or me~tal c~nditions which render him unable to practice

medicine safely. Additionally, the likelihood of injury to the public in not issuing the

order outweighs the likelihood of injury to the licensee in issuing the order. An ISO is

therefore issued against respondent's certificate pursuant to Government Code section

11529.

FACTUAL FINDINGS

Background

1. On March 31, 2000, the Board issued Physician's Certificate number G

85664 (certificate) to respondent. His certificate was in full force and effect at all times

relevant to this matter. His certificate will expire on January 31, 2020, unless renewed

or revoked.

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2. On June 17, 2019, petitioner filed a Petition for ISO with OAH, based on

all~gations that respondent suffers from a mental and/or physical illness that impairs

his ability to practice medicine safely and that permitting him to continue to engage in

the practice of medicine will endanger the public health, safety and welfare. Pursuant

to Government Code section 11529, subdivision (b), petitioner submitted declarations

and documents in support of the ISO.

Evaluation ~y Howard J. Glidden, Ph.D.

3. In approximately 2017, the Board received a complaint from the Delano

Regional Medical Center (Delano) concerning respondent's ability to safely practice

medicine, and reporting a suspension of his hospital privileges. Respondent practiced

urology and performed surgeries at Delano. As result of an investigation conducted by

the Board, respondent was referred to Howard J. Glidden, Ph.D. a Clinical

Neuropsychologist, for a Neuropsychological evaluation.

4. Dr. Glidden is board-certified by the American Board of Professional

Neuropsychology and is a Fellow of the American College of Professional

Neuropsychology. Since 1997, Dr. Glidden has operated a private clinical

neuropsychology practice in Fresno, California. Dr. Glidden was asked by the Board to

"articulate [respondent's] current level of functioning and to provide recommendations

as appropriate." Dr. Glidden completed the evaluation of respondent on March 5,

2019, and issued a report, which he provided to the Board.

5. In preparation for the evaluation, Dr. Glidden reviewed records provided

to him by a Board investigator, which included allegations made against respondent

by staff at Delano, and "various medical evaluations" conducted on respondent.

Specifically, Dr. Glidden reviewed an evaluation by Don H. Gaede, M.D., conducted on

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June 18, 2018, which revealed a "diagnosis of mild cognitive impairment, affecting his

recent memory." Dr. Glidden also reviewed a subsequent test, conducted by Kurt V.

Miller M.D. on December 13, 2018, which "yielded the impression: Minimum cognitive

impairment on a screening examination."

6. As part of the evaluation, Dr. Glidden obtained a history from

respondent, including past medical, psychiatric/psychologic, educational, employment,

social, and family. Dr. Glidden conducted a mental status examination of respondent

and administered 22 tests to assess his level of functioning. Respondent was 78 years

old at the time of the.evaluation. He informed Dr. Glidden that he retired from his

medical practice in "May" and has no plans to return to practice at this time. Prior to

respondent's retirement, he had performed surgeries at Delano for 10 years. He also

ran a private practice. Respondent informed Dr. Glidden that in the spring of 2017, the

executive committee of Delano suspended his hospital privileges. Respondent

contended the reason was that staff believed he had problems with his vision.

Respondent also stated that if he 111 had a reversal in finances, [he] might return to

practice."

7. He reported a past medical history, including lens replacements for

cataracts and fracturing ribs after a hiking fall. Respondent explained that he had

"some problems with equilibrium," which he was addressing through balance training.

Respondent reported that he exercised six to seven days per week; he plays tennis,

sings in a·choir, is an artist, and is publishing the third edition of a ·urology text.

8. Respondent's mental status examination revealed that he was "oriented

to person, place, day.of week/month and year, as well as situation." However,

respondent "incorrectly identified the date of the month as the 4th when it was the

5th." Respondent attempted all tasks requested of him, but as tlie "task demands

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became increasingly difficult fo'r [respondent], he voiced his frustration." He also

voiced "agitation when he felt.his performance as suboptimal, in an apparent

defensive manner intended to minimize the importance of the evaluation."

9. Significant test findings included moderately impaired strength in the

non-dominant upper extremity, and upper extremity fine motor coordination was in

the below average range bilaterally. For language functioning receptive skills,

respondent's single-word reading speed was in the extremely low range as measured

by the Strop Color and Word Test. Respondent's results on the Rey-Osterreith

Complex Figure Test, a "measure of incidental free recall learning which evaluates the

individual's ability to acquire nonverbal information without directed effort •. revealed

"four false-positive responses (recalling elements as being on the design, which

actually were not)." Dr. Glidden opined that this result was "very elevated" for

respondent's age.

10. Respondent's scores on the Wechsler Adult Intelligence Scale-IV, subtest

scores ranged from the very low to very superior levels of ability. Dr. Glidden noted

"[s]ignificant relativeweaknesses were noted on subscales assessing the rapid analysis

and synthesis of abstract visual information, and nonverbal information processing

speed and impulse inhibition." In particular, the "variability among subtest scores was

significant,"

11. Dr. Glidden also opined that respondent's performance on executive

function testing, "revealed limited ability to cognitively sequence, plan and organize

behavior, and did reveal evidence of impaired response inhibition {impulsivity)."

Respondent's performance on the Stroop Color-Word Test "yielded an Interference

score in the Very· Low range." His performance on the Trail Making Test B, which is

measure of visual-motor sequencing, set-shifting flexibility, and divided attention, was

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in the mild to moderately impaired range. His "[n]onverbal problem solving and

categorization were in the Mild to Moderately Imp'aired range."

Respondent completed the Wisc;onsin Card Sorting Test-64, which "requires the

ability to create a rule that will guide sorting, to keep in mind the outcomes of prior

trials (working memory), and to use deductive reason." Dr. Glidden opined respondent

"had considerable difficulty conceptualizing nonverbal problem-solving schemas and

systematically testing alternatives and hypotheses using immediate feedback to

monitor and modify performance."

12. Dr. Glidden's overall impressions based on his evaluation, identified

respondent's pattern of deficits to include:

variable attention and sustained concentration; moderately

impaired strength in the left upper, extremity; below

average coordination in the upper extremities bilaterally;

slowed visual motor speed; limited phonemic and.semantic

verbal spontaneity; significantly slowed nonverbal

information processing speed; limited analysis and

synthesis of abstract visual information; and impaired

executive functioning. Executive functioning deficits

included: slowed response inhibition, difficulty with set­

shifting flexibility, impaired nonverbal abstract reasoning,

cognitive inflexibility, limited verbal spontaneity and '

perseveration. This pattern of deficits is indicative of a

bilateral frontal nidus, the etiology of which is unclear.

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Dr. Glidden further opined that respondent's deficits are consistent with

"frontotemporal dementia." Dr. Glidden explained that "[i]ndividuals experiencing

frontotemporal dementia often experience an early decline in social/interpersonal

functioning, impairment in personal conduct regulation, emotional blunting, and

diminished insight." Dr. Glidden opined that respondent "does not appear to

appreciate, nor does he report any associated changes. Rather, he appears to find fault

in others, demeaning their status, professionalism and objectivity."

13. Dr. Glidden believes it would be "beneficial to obtain collate.ral

information" from family or coworkers who have interacted with respondent. Dr.

Glidden also recommended respondent obtain a "3.0-Tesla MRI scan evaluated by a

board certified neuroradiologist in order to better define possibly etiologies."

14. Dr. Glidden concluded with reasonable neuropsychological certainty, that

respondent's "pattern of deficits would directly impact his ability to practice safely as a

physician and surgeon at this time."

Respondent's Evid,ence

15. Respondent opposed the Petition. He denied that he suffers from any

cognitive impairment. He contended that the evaluations conducted by Drs. Gaede

and Miller, demonstrated mild cognitive impairment, but he was able to improve his

abilities since the evaluation and the findings are not accurate. During the course of

the hearing, respondent read from a prepared statement. When off-script, respondent

appeared confused about the proceedings.

16. Respondent takes exception to petitioner attempting to impose a

suspension on his license, because she is not a doctor, and as a result, cannot make a

medical diagnosis. Respondent also argued Dr. Glidden's opinions are "defective" in

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several respects. Respondent disputes that Dr. Glidden is qualified to render an

opinion regarding his fitness to practice medicine, because he does not hold a medical

degree.

Respondent denied suffering from below average coordination in his upper

extremities. He submitted evidence of a recent tennis competition he completed as

proof of his physical abiliti~s. Respondent indicated that he underwent a procedure on

his left hand in November 2018, which caused a 50 percent loss of grip strength, which

accounts for the test findings of March 5, 2019, by Dr. Glidden.

Respondent does not believe he suffers from "limited phonemic and semantic

verbal spontaneity ... limited verbal spontaneity and perseveration." Respondent

contended that his "booming private practice up to spring 2017" was proof he was .

able to talk to his patients. Respondent also contended that the "alleged deficits [Dr.

Glidden] describes would probably be found in every urologist of [his] age practicing

successfully, i.e. they are age related and insignificant in regard to safe urologic

practice."

17. Although respondent has seen his primary care physician (PCP) since Dr.

Glidden issued his report, he did not provide the report to his PCP, believing the

finding were "over .reaching." Respondent did not indicate that he has any intention of

seeking additional testing or medical treatmentconcerning the deficits identified by

Dr. Glidden.

18. Respondent indicated that he has no current intention of practicing

medicine. He also believes it would be difficult to obtain malpractice insurance since

he has been retired for two years. However, respondent would like to retain his

medical license because he is in the process of completing a third edition of a book

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about the treatment of prostate cancer. Any change to his license status might affect

his ability to sell the book.

Discussion

19. Dr. Glidden's opinion that respondent is currently not safe to practice

medicine due to his neuropsychological deficits is persuasive. Dr. Glidden conducted a

comprehensive neuropsychological evaluation of respondent that included

administering 22 tests. Respondent's performance on the tests administered supports

his opinion that permitting respondent to continue to engage in the practice of

medicine would endanger the public's health, safety and welfare.

20. Additionally, and of particular concern is respondent's lack of insight or

recognition of the deficits Dr. Glidden diagnosed and/or identified through his

evaluation. Respondent focused on Dr. Glidden's lack of a medical degree in an

attempt to minimize his opinion. However, respondent failed to recognize the

objective testing performed by Dr. Glidden served as the basis for his opinions. So,

while respondent stated he has no intention of returning to the practice of medicine,

his refusal to acknowledge actual deficits, his lack of insight into his condition, and his

unwillingness to seek assistance from his PCP, the significant harm he could cause

should he practice, is too great a risk to the public to allow him to retain his license at

this time.

21. When all the evidence submitted at the hearing is considered, petitioner

established that: (1) respondent is unable to practice medicine safely due to a physical

and/or mental health condition; and (2) permitting respondent to continue to engage

in the practice of medicine would endanger the public health, safety, and welfare.

Petitioner established further that: (1) there is a reasonable probability that petitioner

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will prevail if an accusation is filed against respondent; and (2) tbe likelihood of injury

to the public in not issuing an ISO outweighs the likelihood of injury to respondent in

issuing the order. Consequently, respondent's certificate must be suspended, and

respondent cannot practice medicine until such time as an accusation is issued and a

decision is rendered thereon in accordance with Government Coc;fe section 11529,

subdivision (f), or this matter is otherwise resolved.

LEGAL CONCLUSIONS

_ 1. Government Code section 11529, subdivision (a), provides, in pertinent

part, that an interim order suspending a medical license may be issued where it is

shown that a licensee "has engaged in, or is about to engage in, acts or omissions

constituting a violation of the Medical Practices Act ... , or is unable to practice safely

due to a mental or physical condition, and that permitting the licensee to continue to

engage in the profession for which the license was issued will endanger the public

health, safety, or welfare."

2. Government Code section 11529, subdivision (e), provides that the

administrative law judge shall grant the interim order where, in the exercise of

discretion, the judge concludes that:

(1) There is a reasonable probability that the petitioner will

prevail in the underlying action.

(2) The likelihood of injury to the public in not issuing the

order outweighs the likelihood of injury to the licensee in

issuing the order.

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3. Business and Professions Code section 822 allows the Board to revoke,

suspend or restrict a physician's license when it is established that the physician's

ability to safely practice medicine is impaired due to mental or physical illness

affecting competency. A license disciplined for that reason shall not be reinstated

unless the Board has received competent evidence of the absence of such a condition

and is satisfied that the physician again can safely practice medicine.

4. Petitioner need only prove her case by a preponderance of the evidence,

and this requires a demonstration of a reasonable probability that petitioner will

prevail in establishing the violations complained of in seeking the injunction or, in this

case, an interim suspension order. (People v. Frangadakis (1960) 184 Cal.App.2d 540,

549-50.)

5. Cause was established to grant an ISO against respondent pursuant to

Government Code section 11529 and Business and Professions Code section 822.

There is a reasonable probability that petitioner will prevail in the underlying action,

because respondent has physical and/or mental conditions which render him unable

to practice medicine safely. (Bus. & Prof. Code,§ 822.) The evidence in support of the

Petition indicates the likelihood of injury to the public in not issuing the order

outweighs the likelihood of injury to the licensee in issuing the order. Given

respondent's neuropsychological deficits, allowing him to continue to practice

medicine creates a risk to the public health, safety and welfare.

6. When all the evidence and arguments submitted in this matter are

considered, to protect the public health, safety and welfare, respondent's certificate

must be suspended ~ntil an accusation is filed and a decision is rendered thereon

pursuant to Government Code section 11529, subdivision (f), or this matter is

otherwise resolved.

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ORDER

The Petit.ion for an Interim Suspension Order is GRANTED. Physician's and

Surgeon's Certificate Number G 85664 issued to Anthony Horan, M.D., is SUSPENDED

until an accusation is issued and a decision is rendered thereon in accordance with

Government Code section 11529, subdivision (f}, or this matter is otherwise resolved.

Failure to comply with any of the requirements of Government Code section 11529,

subdivision (f), shall nullify the interim suspension order.

DATE: July 29, 2019 c:OocuSlgned by:

'Pl IM-c-i-t:- :1.~ .... . F72F4885838541 C ...

MARCIE LARSON

Administrative Law Judge

Office of Administrative Hearings

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