BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Petition for Reinstatement ) of: )

MARIO JULIO DECUNTO, M.D.

Physician's and Surgeon's Certificate No. A32867

Respondent

) ) ) ) ) ) ) )

~~~~~~~~~~~~~~~~~ )

DECISION

Case No. 8002016024940

OAH No. 2017090376

The attached Proposed Decision is hereby amended, pursuant to Government Code section 11517(c)(2)(c) to correct technical or minor changes that do not affect the factual or legal basis of the proposed decision. The proposed decision is amended as follows:

1. Page 1: Case number is corrected to read "800-2016-024940."

The attached Proposed Decision is hereby adopted as the Decision and Order of the Medical Board of California, Department of-Consumer Affairs, State of California.

This Decision shall become effective at 5:00 p.m. on March 1, 2018. _

IT IS SO ORDERED: January 30, 2018.

MEDICAL BOARD OF CALIFORNIA

~ ftJ-..1: .. ~ ·~~· Ronald H. Lewis,~ Panel A

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Petition for . R~instatement of:

MARIO JULIO DECUNTO,

Petitioner.

Case No. 800-2016-024490

OAH No. 2017090376

PROPOSED DECISION

This matter was heard by Julie Cabos-Owen, Administrative Law Judge with the Office of Administrative Hearings, on December 21, 2017, in Los Angeles, California. Mario Julio Decunto (Petitioner) appeared and was represented by Yvonne Magdalena Flores, Attorney at Law. Pursuant to the provisions of Government Code section 11522, the Attorney General of the State of California was represented by Brian D. Bill, Deputy Attorney General (DAG).

Oral and documentary evidence was received, and argument was heard. The record was closed, and the matter was submitted for decision on December 21, 2017.

FACTUAL FINDINGS

1. Petitioner was previously the holder of Physician and Surgeon's Certificate (license) Number A32867, issued by the Medical Board of California (Board) on August 29, 1978.

2. . In a Decision adopting a Stipulated Surrender of License and Order (Surrender . Order), effective December 11, 2008, the Board accepted Petitioner's surrender of his license.

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3A. The Surrender Order arose from an Accusation filed on March 23, 2006.1 The Accusation alleged that Petitioner's license was subject to discipline for gross negligence, repeated negligent acts, incompetence, and failure to maintain adequate records in his treatment of two cosmetic surgery patients in 2003 and 2004. The Accusation also alleged that Petitioner was subject to discipline for failure to report his patient's death, aiding and abetting the unlicensed practice of medicine, and excessive administration of drugs.

3B. Prior to his surrender, Petitioner was a board certified obstetrician and gynecologist (ObGyn) who had decided to branch out into the field of cosmetic surgery. He began training under the tutelage of Lawrence Saks, M.D. who had a cosmetic surgery practice at that time. 2 Petitioner's surrender resulted from his treatment of patients while collaborating with Dr. Saks.

3C. In the Stipulated Surrender, Petitioner agreed that "all of the charges and allegations contained in [the Accusation] shall be deemed true, correct and admitted by [Petitioner] when the Board determines whether to grant or deny the petition [for reinstatement]." (Exhibit 6, p. 73, lines 20-23.)

3D. Regarding patient Anel B., relevant portions of the allegations admitted by Petitioner are set forth as follows:

22. On or about March 11, 2004, patient Anel B. was a 29 year-old · female who consulted Dr. Saks ... for elective plastic surgery .... [~]

24. On or about March 26, 2004, patient Anel B.'s husband brought the patient to the surgery center at approximately 5:10 am, for her elective surgery. The patient was to have liposuction performed by Dr. Saks, and [Petitioner] was to administer the anesthesia. [Petitioner], however, performed.a history arid physical of the patient on the morning of the surgery. The patient's husband noted that no one else was at the surgery center except for Dr. Saks and [Petitioner]. He left his wife with the doctors and left and center.

25. [T]he patient was given Valium by [Petitioner] to calm her. The patient signed various consent forms [which] authorized [Petitioner], not Dr. Saks, [to perform liposuction on her back, flanks, arms and abdomen.]

1 Pursuant to a July 24, 2006 default decision, the Board revoked Petitioner's license, effective August 23, 2006. However, on August 23, 2006, the Board set aside the default decision.

2 Saks' medical license was revoked following the events which gave rise to Petitioner's license surrender.

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26. The anesthesia record shows that the patient was given 1 gram of Ancef at 5:30ain, 80 mg of Gentamicin (antibiotic) at 5:50 am, and .5 cc of droperiodol (Insapine) for sedation at 5 :42 am. The patient then crawled onto the operating table in a prone position. However, the patient began to get nervous and did not feel comfortable having the surgery. She expressed that she was not feeling well and that she wanted to call her husband. The patient was then taken to the recovery room where she called her husband.

27. The patient's husband received a call from patient Anel B. asking him to pick her up and to remove her from the clinic ....

28. When her husband arrived at the surgical center, he found the patient holding her body and murmuring that she was cold. She was hysterical and had dry foam at the comers of her mouth. . . . The patient's husband observed Dr. Saks inject a substance into his wife's IV line while in the operating room. [Petitioner] told the patient's husband that the medication dries secretions and body fluids, and would slow down any fluids that might secrete from the patient's body after the procedure was completed. [Petitioner] spoke with the patient's husband and informed him that his wife's reaction was common. [Petitioner] told the patient's husband that his wife's uneasy feeling was probably caused by the medication she had been given ....

29. The patient's husband, however, continued to make inquiries about the situation with [Petitioner]. Again [Petitioner] said that the patient's reluctance to continue with the procedure was common and that he had encountered many women [who] were initially reluctant only to proceed with the procedure at a later date .... The patient was [later] escorted to the operating table. The patient again crawled onto the operating table and lay face down in a prone position, with her head turned to the right. The patient was on the operating table naked, without any warming lamps or sterile covers. [Petitioner] said he would give the patient something to relax the patient; he then injected 5 mg. of Valium into the patient's IV line. The patient's husband noticed that his wife's heart rate was between 125-128 [beats per minute] prior to the injection and in the mid-90s after the injection. The patient told her husband that she was cold and within a matter of minutes the patient appeared to be asleep. He called out her name, but did not receive any response.

30. The patient's husband [was escorted from the operating room and went to work].

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31. The Intra-operative Records and Op Note noted that anesthesia began at approximately 6:50 am. Surgery began at approximately 7:13 am, and ended at 8:28 am. [Petitioner] was listed as the surgeon and Dr. Saks was listed as the anesthesiologist. ...

32. Sometime during the surgery, Dr. Saks left the head of the operating table to assist [Petitioner] and show [Petitioner] how to remove fat from the posterior inner thighs using wall suction .... Thereafter, Dr. Saks did not return to the head of the operating table to monitor the patient as an anesthesiologist. [,-r]

34. At approximately 8:26 am or 8:28 am, the patient desaturated. Dr. Saks changed the oxygen saturation monitor, but it still read in the low 60s. Dr. Saks and [Petitioner] stopped the surgery and turned the patient over onto her back. A code was called, 911 was called and they started cardiopulmonary resuscitation (CPR) ....

35. A Firefighter/Paramedic ... responded within three minutes of the dispatch. . . . Upon arrival, the patient was found lying on her back, completely nude and exposed. The patient had no pulse and was not breathing. She was in full arrest. Her pupils were fixed and dilated, which indicates her brain had been without blood or oxygen for some period of time. The paramedic looked for airway management devices but did not see any in the room. There was no crash cart, no electrocardiogram machine (ECG), no oxygen tank, and the patient had not been intubated. Also, no heating lamps or other warming equipment were on site. The paramedic took over the airway management and intubated the patient. The paramedics observed that the other individuals in the room were not correctly managing the patient's airway with the Ambu-bag. The Ambu-bag was being squeezed each time the doctor was doing a compression which was too fast and prevented air fo the patient. .. , [The paramedics intubated the patient and hooked up their Ambu-bag to an oxygen tank line.] One of the paramedics tried to get information regarding the circumstances of the arrest, ... [but] no information was provided to the paramedic other than [Petitioner] stating that "she is a healthy young female." ... Also, no medical records were provided to the paramedics. The patient was then hooked up to an ECG machine. The patient was in ventricular fibrillation (V-fib) such that the ventricles of the heart were not contracting and the rhythm was not sustaining the patient's life. An IV line was started. [~]

37. Resuscitative measures continued en route to the hospital. The patient regained pulses at approximately 9:14 am, but continued to

4

(Exhibit 6.)

deteriorate. At Torrance Memorial, the patient was admitted ... in critical condition. [,-r]

39. Patient Anel B. remained comatose at Torrance Memorial Hospital until she died on or about March 30, 2004. [,-r] ... [,-r]

[On March 26, 2004, Petitioner was grossly negligent when he:]

[f]ailed to ensure that the patient had prior to the planned elective surgery obtained pertinent preoperative laboratory studies such as recent hemoglobin or hematocrit levels[;] obtained patient consent for the procedure after the patient had been administered a mentation affecting medication[;] failed to properly maintain the patient's body temperature or allowed the patient's body temperature to decrease during the procedure which increased the likelihood of hypothermia[;] performed liposuction on patient Anel B. in the prone positon without intubation and general anesthesia[;] failed to ensure the availability of a crash cart to render emergency or life preserving functions during the procedure on patient Anel B.[;] filed to employ appropriate resuscitation procedures in responding to the patient's cyanosis, hypoxia and cardiac arrest[;] and failed to report to the Board that he had performed a medical procedure outside an acute care hospital that resulted in the death of a patient[.]

3E. Regarding patient Mirta A., relevant portions of the allegations admitted by Petitioner are set forth as follows:

[On or about October 24, 2003, Petitioner was grossly negligent when he:] failed to properly diagnose patient Mirta A.' s mammary ptosis [and when he] failed to recommend appropriate treatment for Mirta A.' s mammary ptosis.

[On or about November 5, 2003, Petitioner was grossly negligent when he:] performed surgical procedures that were not indicated for patient MirtaA.'s mammary ptosis[;] performed surgical procedures to address patient Mirta A.' s mammary ptosis without the necessary training for such surgical procedures[;] inserted an under-inflated implant in patient Mirta A.' s left breast and failed to chart the proper size of the implant[;] permitted nurse Vidal, who lacked advanced training in anesthesia, to perform anesthesia on patient Mirta A.[;] permitted nurse Vidal ... to administer excessive and dangerous amounts of anesthetic medication to patient Mirta A., whose airway was not protected by intubation[; and] permitted nurse Vidal to perform anesthesia duties as

5

(Exhibit 6.)

well as the circulating nurse function of providing surgical supplies during the surgical procedure on patient Mirta A.

On or about November 24, 2003, and December 5, 2003, Petitioner was grossly negligent when he:] diagnosed "contractures" at the nipple­ateolar incision and allowed laser treatment of the same[; and] when he allowed the performance of laser. treatment of "contractures" on patient Mirta A. by nurse Vidal, rather than by a physician.

4. In July 2016, Petitioner filed a Petition for Penalty Relief (Petition), seeking reinstatement of his Physician and Surgeon's Certificate.

5. Petitioner is a native of Argentina, but moved to the United States with his family when he was a child. He received his undergraduate degree from the University of California Los Angeles, and he later earned his medical degree from National University of Cordova in Argentina. After completing his residency at Hollywood Presbyterian Medical Center, Petitioner practiced medicine in California from 1977 through 1991. In 1991, he moved his family to Argentina to introduce his children to the Argentinian culture and a "more conservative society." Petitioner practiced medicine in Argentina for seven years but became concerned about perceived instability in the country's economy. In 1999, Petitioner and his family returned to California where Petitioner resumed practicing medicine.

6. In 2005, shortly after the events detailed in Factual Findings 3D and 3E, Petitioner again moved his family to Argentina. At the administrative hearing, Petitioner's stated reason for the move was "mainly because one of [his] daughters ... got involved in drugs," and the move allowed her to finish her last year of high school in Buenos Aires. From 2005 to 2006, Petitioner continued working at an ObGyn clinic in Los Angeles, visiting his family in Argentina every 30 days. When he attended his daughter's graduation in 2006, Petitioner decided to "sacrifice life here in America and move back to Argentina to give [the family] more stability." He admitted that "another reason" he moved the family to Argentina in 2005 was that he "had a sensation" that he would eventually have to surrender his license (which occurred in 2008) and that there. would be "no way to practice medicine here in America." In 2006, Petitioner began working full time as an ObGyn in Argentina, operating a solo-practice clinic there until the present.

7. Although his clinic is operating successfully, Petitioner would like to return to the practice of medicine in California. His wife is a native Californian, and her mother lives in New Mexico. Additionally, three of Petitioner's children and two grandchildren live in the United States. Petitioner and his wife's travel to and from the United States to visit family has become onerous.

8. Petitioner expressed great sorrow over patient Anel B.' s death in 2004. Although he noted that the procedure occurred at Dr. Saks' clinic and that Dr. Saks was the anesthesiologist managing the patient, Petitioner also acknowledged that, as the designated surgeon, he was responsible for his patient.

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9A. Although cosmetic procedures were outside his specialty, in about 2002, Petitioner was drawn to performing liposuction in order to fulfill patient interest. He knew of other ObGyns who performed liposuction to help patients following pregnancy and Cesarean section. Since he was 45-years-old at that time, Petitioner did not believe he would be accepted for a fellowship. Additionally, it was his understanding that he would have to be trained as a general surgeon first and then trained in the specialty of plastic surgery. Consequently, he determined that the only other method for him to become trained in liposuction would be to learn at another physician's clinic.

9B. Petitioner began training with Dr. Saks in 2002. Petitioner was paid as an employee for the two days per week when he worked at Dr. Saks' clinic. Petitioner initially learned how to perform laser tattoo removal and eventually assisted Dr. Saks with liposuction and breast augmentation. Petitioner insisted that he never acted as the anesthesiologist for Dr. Saks' patients and that he never saw Dr. Saks use a dedicated anesthesiologist during surgeries. According to Petitioner, Dr. Saks always administered the anesthesia.3

10. By virtue of the Stipulated Surrender, Petitioner admitted the truth of the facts in Finding 3D. However, during his testimony, he contested some of the allegations in the Accusation and provided some explanation for the events in question. He noted that Anel B.' s preoperative laboratory results and EKG were normal, and she had undergone prior surgeries without incident. Consequently, he saw no contraindication for the liposuction procedure. Contrary to what was alleged in the Accusation, Petitioner denied giving the patient Valium, insisting that all medications were given by Dr. Saks. He also disputed that the patient signed the informed consent form after receiving Valium. Petitioner did not dispute that his method of Ambu-bagging was inappropriate, but "thought it was [his] duty [to attempt it] since the anesthesiologist [Dr. Saks] was not doing it." He did not attempt to intubate the patient because it was a "high risk process" that he had not performed in a long time. Petitioner also explained that he did not report the patient death to the Board because he believed that once the patient was released to the hospital for care, the hospital was responsible for reporting the patient's death six days later. After Petitioner learned about the patient's death, he asked someone with the Torrance Memorial Medical Center liability department about reporting the patient's death, and he was told that the hospital would report it.

11. Petitioner accepted responsibility for his patient's death. He noted that after "retrospective analysis," he understands that he should not perform procedures unless a surgical certter has enough support for any possible complications, and he believes that support should include a board certified anesthesiologist.

3 Petitioner did not explain how Dr. Saks acted as both the anesthesiologist and the primary surgeon during the time when Petitioner was just beginning to learn how to perform cosmetic procedures. However, given the facts set forth in Factual Finding 3(d), Dr. Saks apparently moved from the head of the patient to conduct the cosmetic procedures once he had administered the anesthesia.

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12. Since surrendering his California license, Petitioner has practiced medicine in Argentina where he is licensed. Given the problems that arose from his foray into cosmetic surgery, Petitioner now practices only within his specialty of ObGyn. In July 2017, Petitioner obtained certification as a specialist in ObGyn in Argentina. He also took board exams in Argentina for the subspecialty of endocrinology and infertility following completion of a two­year course and six months of training. Petitioner does not plan to practice in the field of endocrinology and fertility if he regains his California licensure. Petitioner plans to never perform any further cosmetic procedures.

13. Petitioner has continued to review current medical literature on ObGyn issues. He did not complete any California continuing medical education because he believed he needed a California license to do so. Petitioner did not want to be perceived as holding himself out as a licensed California physician or engaging in any acts which could be considered unethical.

14. Petitioner had the support of his colleague, Marcelo Katez, M.D., who traveled from Argentina to testify in support of Petitioner's license reinstatement. Dr. Katez has practiced medicine in Argentina for 27 years, and he specializes in ObGyn. For about nine years, he has collaborated on cases with Petitioner whose medical skills he described as "excellent," particularly in laparoscopic surgery. According to Dr. Katez, Petitioner's surgical center has a reputation as "the best" ambulatory surgical center in Argentina. Dr.

· Katez noted that it is "very Americanized," with "a lot of technology," and that there are "no places like that in Argentina."

15. Petitioner also has the support of former California colleagues, Drs. Daniel Dunkelman and Eduardo DiSarli, who submitted letters on his behalf. They collectively described him as a skillful and trustworthy physician who had previously provided care for underserved Hispanic patients.

LEGAL CONCLUSIONS

1.. Petitioner has established that it would be consistent with the public interest to reinstate his physician's and surgeon's certificate, by reason of Factlial Findings 1 through 15.

2. Petitioner bore the burden of proving both his rehabilitation and his fitness to practice medicine. (Housman v. Board of Medical Examiners (1948) 84 Cal.App.2d 308.) The standard of proof is clear and convincing evidence. (Hippard v. State Bar (1989) 49 Cal.3d 1084, 1092; Feinstein v. State Bar (1952) 39 Cal.2d 541, 546-547.) Petitioner's burden required a showing that he is no longer deserving of the adverse character judgment associated with the discipline imposed against his certificate. (Tardiffv. State Bar (1980) 27 Cal.3d 395, 403.) Petitioner has sustained his burden of proof.

3. Business and Professions Code section 2307, subdivision ( e ), states in pertinent part:

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The panel of the division or the administrative law judge hearing the petition may consider all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the certificate was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability ....

4. California Code of Regulations, title 16, section 1360.2 states:

When considering a petition for reinstatement of a license, certificate or permit holder pursuant to the provisions of Section 11S22 of the Government Code, the division or panel shall evaluate evidence of rehabilitation submitted by the petitioner considering the following criteria:

(a) The nature and severity of the act(s) or crime(s) under consideration as grounds for denial.

(b) Evidence of any act(s) or crime(s) committed subsequent to the act(s) or crime(s) under consideration as grounds for denial which also could be considered as grounds for denial under Section 480.

( c) The time that has elapsed since commission of the act( s) or crime( s) referred to in subsections (a) or (b ). .

( d) In the case of a suspension or revocation based upon the conviction of a crime, the criteria set forth in Section 1360.1, subsections (b ), ( d) and (e).

( e) Evidence, if any, of rehabilitation submitted by the applicant.

SA. Petitioner's discipline was based on violations that involved his participation in surgical procedures outside his specialty which ultimately resulted in a patient's death. This conduct is egregious. ·

SB. It has been almost 14 years since Petitioner's violations. However, the passage of time does not automatically establish rehabilitation. Such rehabilitation should be demonstrated through documented efforts and a clear change in attitude. Petitioner has expressed great sorrow for his patient's death, and he accepted responsibility for his wrongdoing. Petitioner has continued to practice medicine in Argentina, obtaining board certification in ObGyn and taking board exams in a new specialty (endocrinology and infertility) for which he underwent years of training. He uses a surgical center with the requisite support for any potential complications including the use of a board certified anesthesiologist. He practices only in his area of specialty (ObGyn) and has vowed to never

9

again perform cosmetic procedures. Petitioner's actions demonstrate his understanding of the impetus of his violations and his attempts to avoid any further transgressions. r

SC. Petitioner has demonstrated rehabilitation through his internal understanding of the wrongfulness of his actions and the formation of a plan to avoid recidivism.

SD. While Petitioner is apparently fit to practice medicine in Argentina, he has not engaged in the practice of medicine in California for over 11 years, and it is unclear if he has made sufficient efforts to update and maintain his knowledge base for purposes of California licensure. Consequently, as conditions of probation, Petitioner should complete several courses (specified in the order below) and a training program to evaluate/update his knowledge and skills to assure he provides safe patient care.

6. Petitioner has sustained his burden of proving by clear and convincing evidence that he is rehabilitated and entitled to reinstatement of his physician and surgeon's certificate. A probationary period, with appropriate terms and conditions set forth below, should provide adequate protection of the public health, safety and welfare.

ORDER

The petition of Mario Decunto for reinstatement of his physician and surgeon's certificate is granted. Physician and Surgeon's Certificate Number A 32867 is hereby reinstated. However, the certificate shall be immediately revoked, the order of revocation shall be stayed, and Petitioner shall be placed on probation for five years on the following terms and conditions.

1. Notification

Within seven days of the effective date of this Decision, Petitioner shall provide a true copy of this Decision and Accusation to the Chief of Staff or the Chief Executive Officer at every California hospital where privileges or membership are extended to Petitioner, at any other California facility where Petitioner engages in the practice of medicine, including all physician and locum tenens registfies or other similar agencies, and to the Chief Exycutive Officer at every California insurance carrier which extends malpractice insurance coverage to Petitioner. Petitioner shall submit proof of compliance to the Board or its designee within lS calendar days.

This condition shall apply to any change(s) in hospitals, other facilities or insurance carrier.

2. Supervision of Physician Assistants and Advanced Practice Nurses

During probation, Petitioner is prohibited from supervising physician assistants and advanced. practice nurses in California.

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3. Obey All Laws

Petitioner shall obey all federal, state and local laws, all rules governing the practice of medicine in California and remain in full compliance with any court ordered criminal probation, payments, and other orders.

4. Quarterly Declarations

Petitioner shall submit quarterly declarations under penalty of perjury on forms provided by the Board, stating whether there has been compliance with all the conditions of probation.

Petitioner shall submit quarterly declarations not later than 10 calendar days after the end of the preceding quarter.

5. General.Probation Requirements

Compliance with Probation Unit - Petitioner shall comply with the Board's probation unit.

Address Changes - Petitioner shall, at all times, keep the Board informed of Petitioner's business and residence addresses, email address (if available), and telephone number. Changes of such addresses shall be immediately communicated in writing to the Board or its designee. Under no circumstances shall a post office box serve as an address of record, except as allowed by Business and Professions Code section 2021, subdivision (b ).

Place of Practice - Petitioner shall not engage in the practice of medicine in Petitioner's or patient's place of residence, unless the patient resides in a skilled nursing facility or other similar licensed facility ..

License Renewal - Petitioner shall maintain a current and renewed California physician's and surgeon's license.

Travel or Residence Outside California - Petitioner shall immediately inform the Board or its designee, in writing, of travel to any areas outside the jurisdiction of California which lasts, or is contemplated to last, more than thirty (30) calendar days.

In the event Petitioner should leave the State of California to reside or to practice Petitioner shall notify the Board or its _designee in writing 30 calendar days prior to the dates of departure and return.

Ill

Ill

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6. Interview with the Board or its Designee

Petitioner shall be available in person upon request for interviews either at Petitioner's place of business or at the probation unit office, with or without prior notice throughout the term of probation.

7. Non-practice While on Probation

Petitioner shall notify the Board or its designee in writing within 15 calendar days of any periods of non-practice lasting more than 30 calendar days and within 15 calendar days of Petitioner's return to practice. Non-practice is defined as any period of time Petitioner is not practicing medicine as defined in Business and Professions Code sections 2051 and 2052 for at least 40 hours in a calendar month in direct patient care, clinical activity or teaching, or other activity as approved by the Board. If Petitioner resides in California and is considered to be in non-practice, Petitioner shall comply with all terins and conditions of probation. All time spent in an intensive training program which has been approved by the Board or its designee shall not be considered non-practice and does not relieve Petitioner from complying with all the terms and conditions of probation. Practicing medicine in another state of the United States or Federal jurisdiction while on probation with the medical licensing authority of that state or jurisdiction shall not be considered non-practice. A Board-ordered suspension of practice shall not be considered as a period of non-practice.

In the event Petitioner's period of non-practice while on probation exceeds 18 calendar months, Petitioner shall successfully complete the Federation of State Medical Board's Special Purpose Examination, or, at the Board's discretion, a clinical competence assessment program that meets the criteria of Condition 18 of the current version of the Board's "Manual of Model Disciplinary Orders and Disciplinary Guidelines" prior to resuming the practice of medicine.

Petitioner's period of non-practice while on probation shall not exceed two (2) years.

Periods of non-practice will not apply to the reduction of the probationary term.

Periods of non-practice for a Petitioner residing outside of California, will relieve Petitioner of the responsibility to comply with the probationary terms and conditions with the exception of this condition and the following terms and conditions of probatiqn: Obey All Laws; General Probation Requirements; and Quarterly Declarations.

8. Completion of Probation.

Petitioner shall comply with all financial obligations (e.g., restitution, probation costs) not later than 120 calendar days prior to the completion of probation. Upon successful completion of probation, Petitioner's certificate shall be fully restored.

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9. Violation of Probation

Failure to fully comply with any term or condition of probation is a violation of probation. If Petitioner violates probation in any respect, the Board, after giving Petitioner notice and the opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed. If an Accusation, or Petition to Revoke Probation, or an Interim Suspension Order is filed against Petitioner during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final.

10. License Surrender

Following the effective date of this Decision, if Petitioner ceases practicing due to retirement or health reasons or is otherwise unable to satisfy the terms and conditions of probation, Petitioner may request to surrender his license. The Board reserves the right to evaluate Petitioner's request and to exercise its discretion in determining whether or not to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon formal acceptance of the surrender, Petitioner shall within 15 calendar days deliver Petitioner's wallet and wall certificate to the Board or its designee and Petitioner shall no longer practice medicine. Petitioner will no longer be subject to the terms and conditions of probation. If Petitioner re-applies for a medical license, the application shall be treated as a petition for reinstatement of a revoked certificate.

11. Probation Monitoring Costs

Petitioner shall pay the costs associated with probation monitoring each and every year of probation, as designated by the Board, w~ich may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of California and delivered to the Board or its designee no later than January 31 of each calendar year.

12. Professionalism Program (Ethics Course)

Within 60 calendar days of the effective date of this Decision, Petitioner shall enroll in a professionalism program that meets the requirements of California Code of Regulations, title 16, section 1358.1. Petitioner shall participate in and successfully complete that program. Petitioner shall provide any information and documents that the program may deem pertinent. Petitioner shall successfully complete the classroom component of the program not later than six months after Petitioner's initial enrollment, and the longitudinal component of the program not later than the time specified by the program, but no later than one year after attending the classroom component. The professionalism program shall be at Petitioner's expense and shall be in addition to the Continuing Medical Education (CME} requirements for renewal of licensure.

A professionalism program taken prior to the effective date of the Decision may, in the sole discretion of the Board or its designee, be accepted towards the fulfillment of this

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condition if the program would have been approved by the Board or its designee had the program been taken after the effective date of this Decision.

Petitioner shall submit a certification of successful completion to the Board or its designee not later than 15 calendar days after successfully completing the program or not later than 15 calendar days after the effective date of the Decision, whichever is later.

13. Education .Course

Within 60 calendar days of the effective date of this Decision, and on an annual basis thereafter, Petitioner shall submit to the Board or its designee for its prior approval educational program(s) or course(s) which shall not be less than 40 hours per year, for each year of probation. The educational program(s) cir course(s) shall be aimed at correcting any areas of deficient practice or knowledge and shall be Category I certified. The educational program(s) or course(s) shall be at Petitioner's expense and shall be in addition to the CME requirements for renewal of licensure. Following the completion of each course, the Board or its designee may administer an examination to test Petitioner's knowledge of the course. Petitioner shall provide proof of attendance for 65 hours of CME of which 40 hours were in satisfaction of this condition.

14. Prescribing Practices Course

Within 60 calendar days of the effective date of this Decision, Petitioner shall enroll in a course in prescribing practices approved in advance by the Board or its designee. Petitioner shall provide the approved course provider with any information and documents that the approved course provider may deem pertinent. Petitioner shall participate in and successfully complete the classroom component of the course not later than six (6) months after Petitioner's initial enrollment. Petitioner shall successfully complete any other component of the course within one (1) year of enrollment. The prescribing practices course shall be at Petitioner's expense and shall be in addition to the CME requirements for renewal of licensure.

A prescribing practices course taken after the acts that gave rise to the charges in the Accusation, but prior to the effective date of the Decision may, in the sole discretion of the Board or its designee, be accepted towards the fulfillment of this condition if the course would have been approved by the Board or its designee had the course been taken after the effective date of this Decision.

Petitioner shall sub.mit a certification of successful completion to the Board or its designee not later than· 15 calendar days after successfully completing the course, or not later than 15 calendar days after the effective date of the Decision, whichever is later.

Ill

Ill

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15. Medical Record Keeping Course

Wi.thin 60 calendar days of the effective date of this Decision, Petitioner shall enroll in a course in medical record keeping approved in advance by the Board or its designee. Petitioner sball provide the approved course provider with any information and documents that the approved course provider may deem pertinent. Petitioner shall participate in and successfully complete the classroom component of the course not later than six (6) months after Petitioner's initial enrollment. Petitioner shall successfully complete any other component of the course within one (1) year of enrollment. The medical record keeping course shall be at Petitioner's expense and shall be in addition to the CME requirements for renewal of licensure.

A medical record keeping course taken after the acts that gave rise to the charges in the Accusation, but prior to the effective date of the Decision may, in the sole discretion of the Board or its designee, be accepted towards the fulfillment of this condition if the course would have been approved by the Board or its designee had the course been taken after the effective date of this Decision.

Petitioner shall submit a certification of successful completion to the Board or its designee not later than 15 calendar days after successfully completing the course, or not later than 15 calendar days after the effective date of the Decision, whichever is later.

16. Clinical Competence Assessment Program

Within 60 calendar days of the effective date of this Decision, Petitioner shall enroll in a clinical competence assessment program approved in advance by the Board or its designee. Petitioner shall successfully complete the program not later than six months after Petitioner's initial enrollment unless the Board or its designee agrees in writing to an extension of that time. -

The program shall consist of a comprehensive assessment of Petitioner's physical and mental health and the six general domains of cUnical competence as defined by the Accreditation Council on Graduate Medical Education and American Board of Medical Specialties pertaining to Petitioner's current or intended area of practice. The prC?gram shall take into account data obtained from the pre-assessment, self-report forms and interview, and the Decision(s), Accusation, and any other information that the Board or its designee deems relevant. The program shall requfre Petitioner's on-site participation for a minimum of three and no more than five days as determined by the program for the assessment and clinical education evalu~tion. Petitioner shall pay all expenses associated with the clinical competence assessment program.

At the end of the evaluation, the program will submit a report to the Board or its designee which unequivocally states whether Petitioner has demonstrated the ability to practice safely and independently. Based on Petitioner's performance on the clinical competence assessment, the program will advise the Board or its designee of its

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recommendation(s) for the scope and length of any additional educational or clinical training, evaluation or treatment for any medical condition or psychological condition, or anything else affecting P~titioner's practice of medicine. Petitioner shall comply with the program's recommendations.

Determination as to whether Petitioner successfully completed the clinical competence assessment program is solely within the program's jurisdiction.

Petitioner shall not practice medicine until Petitioner has successfully completed the program and has been so notified by the Board or its designee in writing.

17. Solo Practice Prohibition

Petitioner is prohibited from engaging in the solo practice of medicine in California. Prohibited solo practice includes, but is not limited to, a practice where: 1) Petitioner merely shares office space with another physician but is not affiliated for purposes of providing patient care, or 2) Petitioner is the sole physician practitioner at that location.

If Petitioner fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days of the effective date of this Decision, Petitioner shall receive a notification from the Board or its designee to cease the practice of medicine within three calendar days after being so notified. Petitioner shall not resume practice until an appropriate practice setting is established.

If, during the course of the probation, Petitioner's practice setting changes and Petitioner is no longer practicing in a setting in compliance with this Decision, Petitioner shall notify the Board or its designee within five calendar days of the practice setting change. If Petitioner fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days of the practice setting change, Petitioner shall receive a notification from the Board or its designee to cease the practice of medicine within three calendar days after being so notified. Petitioner shall not resume practice until an appropriate practice setting is established.

DATED: January 8, 2018

~l~1~;Sic:i;~:s-t9-w~ ~FS5BES8452 ... JULIE CABOS-OWEN Administrative Law Judge Office of Administrative Hearings

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