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XAVIER BECERRA Attorney General of California ALEXANDRA M. ALVAREZ Supervising Deputy Attorney General CHRISTINE A. RHEE Deputy Attorney General State Bar No. 295656
600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 738-9455 Facsimile: (619) 645-2061
FILED STATE OF CALIFORNIA
MEDICAL BOARD OF CALIFORNIA SA~e--r 2012_ BY ANALYST
8 Attorneys for Complainant
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BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
In the Matter of the Accusation and Petition to Case No. 800-2017-032406 Revoke Probation Against:
RICHARD BERTON MANTELL, M.D. ACCUSATION AND PETITION TO 34022 Blue Lantern Street REVOKE PROBATION Dana Point, CA 92629-2501
Physician's and Surgeon's Certificate No. A39992,
Respondent.
20 Complainant alleges:
21 PARTIES
22 1. Kimberly Kirchmeyer (Complainant) brings this Accusation and Petition to Revoke
23 Probation solely in her official capacity as the Executive Director of the Medical Board of
24 California (Board).
25 2. On or about June 30, 1983, the Board issued Physician's and Surgeon's Certificate
26 No. A39992 to Richard Berton Mantell, M.D. (Respondent). The Physician's and Surgeon's
27 Certificate No. A39992 was in full force and effect at all times relevant to the charges brought
28 herein, and will expire on May 31, 2019, unless renewed.
ACCUSATION AND PETITION TO REVOKE PROBATION (800-2017-032406)
DISCIPLINARY HISTORY
2 3. In a previous disciplinary action entitled, In the Matter of the Accusation Against
3 Richard Berton Mantell, MD., Case No. 09-2012-223599, the Board issued a Decision and
4 Order, effective July 15, 2016, in which Respondent's Physician's and Surgeon's Certificate No.
5 A39992 was revoked, revocation stayed, and placed on probation for five (5) years with certain
6 terms and conditions and 15 days actual suspension. That decision is now final and is
7 incorporated by reference as if fully set forth herein. A true and correct copy of that Decision and
8 Order is attached hereto as Exhibit A and is incorporated by reference as if fully set forth herein.
9 JURISDICTION
10 4. This Accusation and Petition to Revoke Probation is brought before the Board, under
11 the authority of the following laws. All section references are to the Business and Professions
12 Code (Code) unless otherwise indicated.
13 5. Section 820 ofthe Code states:
14 "Whenever it appears that any person holding a license, certificate or permit
15 under this division or under any initiative act referred to in this division may be unable
16 to practice his or her profession safely because the licentiate's ability to practice is
17 impaired due to mental illness, or physical illness affecting competency, the licensing
18 agency may order the licentiate to be examined by one or more physicians and surgeons
19 or psychologists designated by the agency. The report of the examiners shall be made
20 available to the licentiate and may be received as direct evidence in proceedings
21 conducted pursuant to Section 822."
22 6. Section 822 ofthe Code states:
23 "If a licensing agency determines that its licentiate's ability to practice his or her
24 profession safely is impaired because the licentiate is mentally ill, or physically ill
25 affecting competency, the licensing agency may take action by any one of the following
26 methods:
27 "(a) Revoking the licentiate's certificate or license.
28 "(b) Suspending the licentiate's right to practice.
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ACCUSATION AND PETITION TO REVOKE PROBATION (800-2017-032406)
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"(c) Placing the licentiate on probation.
"(d) Taking such other action in relation to the licentiate as the licensing agency
in its discretion deems proper.
"The licensing section shall not reinstate a revoked or suspended certificate or
license until it has received competent evidence of the absence or control ofthe
condition which caused its action and until it is satisfied that with due regard for the
public health and safety the person's right to practice his or her profession may be
safely reinstated."
7. Section 2227 of the Code states, in pertinent part:
"(a) A licensee whose matter has been heard by an administrative law judge of
the Medical Quality Hearing Panel as designated in Section 113 71 of the Government
Code, or whose default has been entered, and who is found guilty, or who has entered
into a stipulation for disciplinary action with the board, may, in accordance with the
provisions of this chapter:
"(1) Have his or her license revoked upon order of the board.
"(2) Have his or her right to practice suspended for a period not to exceed one
year upon order of the board.
"(3) Be placed on probation and be required to pay the costs of probation
monitoring upon order of the board.
"( 4) Be publicly reprimanded by the board. The public reprimand may include a
requirement that the licensee complete relevant educational courses approved by the
board.
"(5) Have any other action taken in relation to discipline as part of an order of
probation, as the board or an administrative law judge may deem proper.
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ACCUSATION AND PETITION TO REVOKE PROBATION (800-20 17-032406)
1 SECTION 822 CAUSE FOR ACTION
2 (Mental Illness Affecting Competency)
3 8. Respondent's Physician's and Surgeon's Certificate No. A39992 is subject to action
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under section 822 of the Code in that his ability to practice medicine safely is impaired because he
has cognitive impairments affecting competency, as more particularly alleged hereinafter:
9. Respondent is a sixty-three year old physician and surgeon with a private practice
specializing in weight management.
10. In a previous disciplinary action entitled, In the Matter of the Accusation Against
Richard Berton Mantell, MD., Case No. 09-2012-223599, the Board issued a Decision and
Order, effective July 15, 2016, in which Respondent's Physician's and Surgeon's Certificate No.
A39992 was revoked, revocation stayed, and placed on probation for five (5) years with certain
terms and conditions and 15 days actual suspension. Included as a condition of probation was a
requirement that Respondent complete a clinical training or educational program equivalent to the
Physician Assessment Clinical Education Program (PACE) at the University of California- San
Diego School of Medicine. Respondent was also required to comply with all of the clinical
education program's recommendations.
17 11. In compliance with the Board's Decision and Order in Case No. 09-2012-223599,
18 Respondent participated in Phase I of the PACE Program on or about October 11, 2016 through
19 October 12, 2016. The PACE Program recommended that Respondent undergo a
20 neuropsychological fitness for duty evaluation upon completion of the two days of intensive
21 testing and evaluation.
22 12. In further compliance with the Board's Decision and Order in Case No. 09-2012-
23 223599, to comply with the PACE Program and its recommendations, Respondent participated in
24 a fitness for duty neuropsychological examination that was supervised and reviewed by D.M.S.,
25 Psy.D., ABPP-CN (Dr. S.) on or about February 14, 2017. This comprehensive evaluation, which
26 consisted of a clinical interview, review oflegal records, and neuropsychological testing, revealed
27 that Respondent had several deficiencies, including, but not limited to, the following:
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ACCUSATION AND PETITION TO REVOKE PROBATION (800-2017-032406)
(a) Respondent experienced significant decline in the areas of perceptual reasoning,
2 processing speed, and overall IQ.
3 (b) Respondent scored in the mildly to moderately-impaired range when compared
4 to his demographic group (based upon educational level, gender, and ethnicity) in
5 intellectual functioning, motor functioning, visuospatial/organizational functioning,
6 attention and processing speed, language, memory, executive functioning, perceptual
7 reasoning and mental spatial organization. Respondent's test results demonstrated severe
8 impairment regarding perceptual reasoning and mental spatial organization.
9 (c) Respondent's deficits in visuospatial!perceptive processing could not be
10 explained by normal age-related decline.
11 13. Upon completion of the evaluation, on or about February 21, 2017, Dr. S. reported her
12 diagnostic impressions of Respondent to the Board and concluded that Respondent's
13 neuropsychological impairments precluded him from being able to safely practice medicine.
14 FIRST CAUSE TO REVOKE PROBATION
15 (Failure to Successfully Complete Clinical Training Program)
16 14. At all times after the effective date of Respondent's probation in Case No. 09-2012-
17 223599, Condition 8 stated:
18 "8. CLINICAL TRAINING PROGRAM. Within sixty (60) calendar days ofthe
19 effective date of this Decision, respondent shall enroll in a clinical training or
20 educational program equivalent to the Physician Assessment and Clinical Education
21 Program (PACE) offered at the University of California- San Diego School of
22 Medicine (Program). Respondent shall successfully complete the Program not later
23 than six (6) months after respondent's initial enrollment unless the Board or its
24 designee agrees in writing to an extension of that time.
25 "The Program shall consist of a Comprehensive Assessment program comprised
26 of a two (2) day assessment of respondent's physical and mental health; basic clinical
27 and communication skills common to all clinicians; and medical knowledge, skill and
28 judgment pertaining to respondent's area of practice in which respondent was alleged
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ACCUSATION AND PETITION TO REVOKE PROBATION (800-2017-032406)
1 to be deficient, and at minimum, a forty ( 40) hour program of clinical education in the
2 area of practice in which respondent was alleged to be deficient and which takes into
3 account data obtained from the assessment, Decision(s), Accusation(s), and any other
4 information that the Board or its designee deems relevant. Respondent shall pay all
5 expenses associated with the clinical training program.
6 "Based on respondent's performance and test results in the assessment and
7 clinical education, the Program will advise the Board or its designee of its
8 recommendation(s) for the scope and length of any additional educational or clinical
9 training, treatment for any medical condition, treatment for any psychological
10 condition, or anything else affecting respondent's practice of medicine. Respondent
11 shall comply with Program recommendations.
12 "At the completion of any additional educational or clinical training, respondent
13 shall submit to and pass an examination. Determination as to whether respondent
14 successfully completed the examination or successfully completed the program is
15 solely within the program's jurisdiction.
16 "If respondent fails to enroll, participate in, or successfully complete the clinical
1 7 training program within the designated time period, respondent shall receive a
18 notification from the Board or its designee to cease the practice of medicine within
19 three (3) calendar days after being so notified. The respondent shall not resume the
20 practice of medicine until enrollment or participation in the outstanding portions of the
21 clinical training program have been completed. If the respondent did not successfully
22 complete the clinical training program, the respondent shall not resume the practice of
23 medicine until a final decision has been rendered on the accusation and/or petition to
24 revoke probation. The cessation of practice shall not apply to the reduction of the
25 probationary time period."
26 15. At all times after the effective date of Respondent's probation in Case No. 09-2012-
27 223599, Condition 18 stated:
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"18. VIOLATION OF PROBATION. Failure to fully comply with any term or
2 condition of probation is a violation of probation. If respondent violates probation in
3 any respect, the Board, after giving respondent notice and the opportunity to be heard,
4 may revoke probation and carry out the disciplinary order that was stayed. If an
5 Accusation, or a Petition to Revoke Probation, or an Interim Suspension Order is filed
6 against respondent during probation, the Board shall have continuing jurisdiction until
7 the matter is final, and the period of probation shall be extended until the matter is
8 final."
9 16. Respondent's probation in Case No. 09-2012-223599, is subject to revocation because
10 he failed to successfully complete Probation Condition 8, as more particularly alleged in
11 paragraphs 9 through 13, above, which are hereby incorporated by reference and re-alleged as if
12 fully set forth herein.
13 PRAYER
14 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,
15 and that following the hearing, the Medical Board of California issue a decision:
16 1. Revoking probation and carrying out the discipline that was stayed in Case No. 09-
17 2012-223599, thereby revoking Physician's and Surgeon's Certificate No. A39992, issued to
18 Respondent Richard Berton Mantell, M.D.;
19 2. Revoking or suspending Physician's and Surgeon's Certificate No. A39992, issued to
20 Respondent Richard Berton Mantell, M.D.;
21 3. Revoking, suspending or denying approval of Respondent Richard Berton Mantell,
22 M.D.'s authority to supervise physician assistants pursuant to section 3527 of the Code, and
23 advance nurse practitioners;
24 4. Ordering Respondent Richard Berton Mantell, M.D., if placed on probation, to pay
25 the Board the costs of probation monitoring; and
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ACCUSATION AND PETITION TO REVOKE PROBATION (800-2017-032406)
1 5. Taking such other and further action as deemed necessary and proper.
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SD20 17705021 81705666.doc
Executive ·rector Medical Board of California State of California Complainant
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ACCUSATION AND PETITION TO REVOKE PROBATION (800-2017-032406)
EXHIBIT A
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT 01<~ CONSUMER AFFAIRS STATE OF CALlFORI'liA
In the Matter of the Accusation Against:
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RICHARD BERTON MANTELL, M.D. ) Case No. 09-2012-223599
Physician's and Surgeon's Certificate No. A 39992
Respondent
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ORDER CORRECTING CLERICAL ERROR IN "CASE NUMBER" ON ORDER I' AGE
On its own motion, the Medical Board of California (hereafter .. board'') finds that there is a clerical error in the •·cm;;e number" on the Order page of the Decision in the above-entitled matter and that such clerical error should be corrected so that the case number is correct.
IT IS HEREBY ORDERED that the case number on the Order page in the above-entitled matter be and hereby amended and corrected nunc pro tunc as of the date of entry, to read as follows.
Case No. 09-2012-223599
IT IS SO ORDEREU: June 17,2016.
MEOICAL BOARD OF CALIFORNIA
Howard Krauss, M.D., Chair l'anel B
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORi'liA
In the Matter of the Accusation Against:
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RICHARD BERTON MAt''lTELL, M.D. ) Case No. 09-2012-2.2.1559
Physician's and Surgeon's Certificate No. A 39992
Respondent
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DECISION
The attached Stipulated Settlement and Disciplinary Order 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 5:00p.m. on .Julv 15. 2016.
IT IS SO ORDERED: June 16,2016.
MEDICAL BOARD OF CALIFORNIA
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Attorney General of California ALEXA~DRA M. ALVAREZ Supervising Deputy Attorney General JOSlPII F. McKE:\t\A Ill Deputy Attorney General State Bar No. 23 1 195
600 West Broadway, Suite 1800 San Diego. CA 92101 P.O. Aox 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2997 Facsimile: ( 619) 645-2061
Auorneysfor Complainallf
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
13 In the Matter of the Accusation Against: Case No. 09-2012-223599
14 RICHARD BERTON MANTELL, M.D. 34022 Blue Lantern Street
OAH No. 2015-080494
15 Dana Point, California 92629 STIPULA TEl> SETTLEMENT AND DISCIPLINARY ORDER
16 Physician's and Surgeon's Certificate No.
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A39992
Respondent.
IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-
entitled proceedings that the follm\ ing matters arc true:
PARTIES
I. Kimberly Kirchmeyer (Complainant) is the Executive Director of the Medical Aoard
23 of California. She brought this action solely in her official capacity and is represented in this
24 matter by Kamala D. Harris. Attorney General ofthe State of California. by Joseph F. McKenna
25 Ill. Dcput) Attorney General.
') "-• Respondent Richard Berton :Vtantel!, M.D., is represented in this proceeding by 26
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attorney Peter R. Osinofl Esq .. whose address is: 3699 Wilshire Blvd., I Oth Floor, Los Angeles,
28 I Calil{xnia. 90010.
1'1-~---------Sl'IPL:LATED SETTLEl\IEi\T AND DISC!PLli\ARY ORDER (Case :-:o. 09-20 12-223599)
3. On June 30, 1983. the Medical Board ofCalifomia issued Physician's and Surgeon's
2 Certilicate No. A39992 to Richard Berton Mantell, M.D. (respondent). The Physician's and
3 Surgeon's Certificate was in full force and effect at all times relevant to the charges brought in
-+ Accusation No. 09-2012-223599, and will expire on May 31. 2017, unless renewed.
5 .JURISDICTION
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4. On May 14. 2015, Accusation No. 09-2012-223599 was tiled before the Medical
Board of California (Board). Department of Consumer Affairs. and is currently pending against
respondent. On May 14, 2015, a true and correct copy of Accusation No. 09-2012-223599 and all
other statutorily required documents were properly served on respondent by certified mail at his
address of record on tile with the Board which was: 34022 Blue Lantern Street, Dana Point.
California, 92629. Respondent timely tiled his Notice of Defense contesting the Accusation on
May 26, 20 I 5. A true and correct copy of Accusation No. 09-2012-223599 is attached hereto as
Exhibit A and incorporated herein by reference as iffully set forth herein.
ADVISEMENT AND WAIVERS
5. Respondent has carefully read. fully discussed vvith counsel, and understands the
charges and allegations in Accusation No. 09-2012-223599. Respondent has also carefully read,
fully discussed with counsel. and fully understands the etTects of this Stipulated Settlement and
Disciplinary Order.
6. Respondent is fully aware of his legal rights in this matter. including the right to a
hcuring on the churgcs and allegations in Accusation No. 09-20 12-223599; the right to be
represented by counsel at his ov.n expense; the right to contl·ont and cross-examine the witnesses
against hirn; the right to present evidence and to testify on his own behalf; the right to the
issuance of subpoenas to compel the attendance of witnesses and the production of documents;
the right to reconsideration and court review of an adverse decision; and all other rights accorded
by the California Administrative Procedure Act and other applicable laws, having been fully
advised of same by his attorney of record. Peter R. Osinon: Esq.
7. Having the benefit of counseL respondent hereby voluntarily, knowingly, and
intelligently waives and gives up each and every right set f()rth above.
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ST!Pt 1LA lED SETTLEMENT AND DISCIPLI'-:ARY ORDER (Case No. 09-2012-223599)
CULPABILITY
2 8. Respondent docs not contest that, at an administrative hearing, Complainant could
3 establish a primaj(u:ie case with respect to the charges and allegations contained in Accusation
4 No. 09-2012-223599 and that he has thereby subjected his Physician's and Surgeon's Certificate
5 No. A39992 to disciplinary action.
6 1 9. Respondent agrees that if he ever petitions for early termination or modification of
7 probation. or if an accusation and/or petition to revoke probation is filed against him before the
8 ~1edical Board of California. all of the charges and allegations contained in Accusation No.
9 09-2012-223599 shall be deemed true. correct and fully admitted by respondent for purposes of
10 any such proceeding, or any other licensing proceeding involving respondent in the State of
11 California.
12 CONTINGENCY
13 10. This Stipulated Settlement and Disciplinary Order shall be subject to approval ofthe
14 Board. The parties agree that this Stipulated Settlement and Disciplinary Order shall be
15 submitted to the Board for its consideration in the above-entitled matter and, further, that the
16 Board shall have a reasonable period oftirne in which to consider and act on this Stipulated
17 Settlement and Disciplinary Order after receiving it. By signing this stipulation, respondent fully
18 understands and agrees that he may not withdraw his agreement or seck to rescind this stipulation
19 prior to the time the Board considers and acts upon it.
20 II. The parties agree that this Stipulated Settlement and Disciplinary Order shall be null
21 and void and not binding upon the parties unless approved and adopted by the Board, except for
22 this paragraph, which shall remain in full torce and effect. Respondent fully understands and
23 agrees that in deciding whether or not to approve and adopt this Stipulated Settlement and
24 Disciplinary Order, the Board may receive oral and written communications from its staff and/or
25 the Attorney General's Office. Communications pursuant to this paragraph shall not disqualify
26 the Board, any member thereat: and/or any other person from future participation in this or any
27 other matter affecting or involving respondent. In the event that the Board does not. in its
28 discretion, approve and adopt this Stipulated Settlement and Disciplinary Order, with the
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STIPULATED SETILEME~T AND DISCIPLINARY ORDER (Ca::.e ~o. 09-2012-223599)
exception of this paragraph. it shall not become etlective. shall be of no evidentiary value
2 \vhatsocver, and shall not be relied upon or introduced in any disciplinary action by either party
3 h<.:reto. Respondent further agrees that should this Stipulated Settlement and Disciplinary Order
4 be reje~.:ted for any reason by the Board, respondent will assert no claim that the Board, or any
5 member thereof: was pr~judiced by its/his/her review. discussion and/or consideration of this
6 Stipulated Senlement and Disciplinary Order or of any matter or matters related hereto.
7 ADI>ITIONAL PROVISIONS
8 12. This Stipulated Settlement and Disciplinary Order is intended by the parties herein
9 to be an integrated writing representing the complete, final and exclusive embodiment of the
1 0 agreements of the parties in the above-entitled matter.
II 13. The parties agree that copies of this Stipulated Settlement and Disciplinary Order,
12 including copies of the signatures of the parties. may be used in lieu of original documents and
13 signatures and. further. that such copies shall have the same force and effect as originals.
14 14. In consideration of the lon~going admissions and stipulations, the parties agree the
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Roard may. without further notice to or opportunity to be heard by respondent, issue and enter
the following Disciplinary Order:
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STIPL'LATFD SETTLE\tE:-.;r A:-.;D DISCIPLINARY ORDER (Case No. 09-2012-223599)
DISCIPLINARY OROER
2 IT IS II ERE BY ORDERED that Physician's and Surgeon's Certificate No. A39992
3 issued to respondent Richard Berton Mantell. M.D .• is revoked. llowcver. the revocation is
4 stayed and respondent is placed on probation for five (5) years on the following terms and
5 conditions.
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I. ACTt:AI. SUSPENSION. As part of probation. respondent is suspended frorn the
practice of medicine for fifteen ( 15) days beginning the sixteenth {16th) day after the effective
date of this decision.
2. CONTROLLED SUBSTANCES- PARTIAL RESTRICTION. Respondent shall
immediately surrender his current Drug Enforcement Administration (DEA) permit to the DEA
1(1r cancellation and reapply for a new DEA permit limited to those Schedules authorized by this
12 i Disciplinary Order. Under this Disciplinary Order, respondent is only authorized to order,
13 prescribe. dispense. administer, furnish or possess controlled substances listed in Schedules Ill,
14 IV and V of the Act. Within lilken ( 15) calendar days after the etlective date of this Decision,
15 ' respondent shall submit proofthat he has surrendered his DEA permit to the Drug Enforcement
16 Administration for cancellation andre-issuance. Within fifteen ( 1 5) calendar days after the
17 effective date of issuance of a new DEA permit, respondent shall submit a true copy of the permit
18 to the Board or its designee.
19 3. COKTROLLED SUBSTAKCES --MAINTAIN RECORDS AND ACCESS TO
20 RECORDS AND INVENTORIES. R\!'spondcnt shall maintain a record of all controlled
21 substances ordered, prescribed. dispensed, administered, or possessed by respondent, and any
22 recommendation or approval vvhich enables a patient or patient's primary caregiver to possess
23 or cultivate marijuana for the personal medical purposes of the patient within the meaning of
24 Health and Safety Code section 11362.5. during probation, showing all the following: I) the name
25 and address ofpatient: 2) the date: 3) the character and quantity of controlled substances
26 involved: and 4) the indications and diagnosis for which the controlled substances were furnished.
27 Respondent shall keep these records in a separate tile or ledger. in chronological order. All
28 records and any inventories of controlled substances shall be available tor immediate inspection
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ST!Pt:IA!FD SETTI.E\IE\:T A\.;D DISCIPLI\.;.ARY ORDER (Cast: No. 09-20 12-223599)
and copying on the premises by the Board or its designee at all times during business hours and
2 shall be retained for the entire term of probation.
3 4. EDUCATION COURSE. Within sixty (60) calendar days of the effective date of
4 this Decision. and on an annual basis thereafter, respondent shall submit to the Board or its
5 designee for its prior approval educational program(s) or course(s) which shall not be less than
6 t()rty ( 40) hours per )car. tlx each year of probation. The educational program(s) or course(s)
7 shall be aimed at correcting any areas of deticient practice or knowledge and shall be Category I
8 certified. ·rhe educational program(s) or coursc(s) shall be at respondent's expense and shall be
9 in addition to the Continuing Medical Education (CME) requirements for rem:-,val of licensure.
10 Following completion of each course, the Board or its designee may administer an examination
11 to test respondent's knowledge ofthe course. Respondent shall provide proof of attendance for
12 sixty-five (65) hours ofCME ofwhich forty (40) hours were in satisfaction ofthis condition.
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5. PRESCRIBING PRACTICES COURSE. Within sixty (60) calendar days of the
effective date of this Decision. respondent shall enroll in a course in prescribing practices
equivalent to the Prescribing Practices Course at the Physician Assessment and Clinical
Education Program. University of California. San Diego School of Medicine (Program), approved
in advance hy the Board or its designee. Respondent shall provide the program with any
information and documents that the Program may deem pertinent. Respondent shall participate in
and successfully complete the classroom component ofthe course not later than six (6) months
after t·cspond~nt ·s initial ~nro!lmcnt. Respondent shall successfully complete any other
component of the course within one (I) year of enrollment. The prescribing practices course shall
be at n.:spondent's expense and shall be in addition to the Continuing Medical Education (CME)
requirements fbr renewal of licensure.
A prescribing practices course taken after the acts that gave rise to the charges in
Accusation No. 09·20 12·223599, 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 ifthe
course would have been approved by the Board or its designee had the course been taken alter the
effective date of this Decision.
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ST!Pl LATED SErru-::\!E~T A~D DlSCIPLIKARY ORDER (Case ~o. 09-2012·223599)
Respondent shall submit a certification of successful completion to the Board or its
2 designee not later than fifteen ( 15) calendar days after successfully completing the course, or not
3 later than fifteen ( 15) calendar days after the effective date of the Decision, \vhichevcr is later.
4 6. MEDICAL RECORD KEEPING COURSE. Within sixty (60) calendar days of the
5 effective date of this Decision. respondent shall enroll in a course in medical record keeping
6 equivalent to the Medical Record Keeping Course otTered by the Physician Assessment and
7 Clinical Education Program. University of California, San Diego School ofMedicine (Program).
8 approved in advance by the Board or its designee. Respondent shall provide the program with
9 any information and documents that the Program may deem pertinent. Respondent shall
10 participate in and successfully complete the classroom component ofthe course not later than six
11 (6) months after respondent's initial enrollment. Respondent shall successfully complete any
12 other component of the course within one ( l) year of enrollment. The medical record keeping
13 course shall be at respondent's expense and shall be in addition to the Continuing Medical
14 Education (CME) requirements for renewal of licensure.
15 A medical record keeping course taken atter the acts that gave rise to the charges in
J 6 Accusation ~o. 09.20 12·223599. but prior to the cfTectivc date of the Decision may, in the sole
17 discretion of the Board or its designee. be accepted towards the tultillmcnt ofthis condition if the
18 course would have been approved by the Board or its designee had the course been taken atler the
19 cftcctive date of this Decision.
20 Respondent shall submit a certification of successful completion to the Board or its
21 designee not later than fifteen ( 15) calendar days after successfully completing the course, or not
22 later than fifteen ( 15) calendar days after the cfiectivc date of the Decision. whichever is later.
23 7. PROFESSIONALISM PROGRAM (ETHICS COURSE). Within sixty (60)
24 calendar days of the efTective date of this Decision, respondent shall enroll in a professionalism
25 program. that meets the requirements of Title 16. California Code of Regulations (CCR) section
26 1358. Respondent shall participate in and successfully complete that program. Respondent shall
27 provide any information and documents that the program may deem pertinent. Respondent shall
28 successfully complete the classroom component ofthe program not later than six (6) months after
7
STIPULATED SETlLE\IENT A~D DISCIPLI~ARY ORDER (Case No. 09-2012-223599}
respondent's initial enrollment. and the longitudinal component ofthe program not later than
2 the time specified by the program, but no later than one (I) year atter attending the classroom
3 component. The professionalism program shall be at respondent's expense and shall be in
4 addition to the Continuing Medical Education (CME) requirements for renewal of licensure.
5 A professionalism program taken after the acts that gave rise to the charges in Accusation
6 No. 09-2012-223599, but prior to the effective date ofthe Decision may, in the sole discretion
7 of the Board or its designee, be accepted towards the fulfillment of this condition ifthe program
8 would have been approved b~ the Board or its designee had the program been taken atter the
9 effective date of this Decision.
10 Respondent shall submit a certification of successful completion to the Board or its
II designee not later than fifteen ( 15) calendar days after successfully completing the program or
12 not later than fifteen ( 15) calendar days after the eflcctivc date of the Decision, whichever is later.
13 8. CLINICAL TRAINING PROGRA\1. Withinsixty(60)calendardaysofthe
14 effective date of this Decision. respondent shall enroll in a clinical training or educational
15 program equivalent to the Physician Assessment and Clinical Education Program (PACE) offered
16 at the University of California- San Diego School of Medicine (Program). Respondent shall
17 successfully complete the Program not later than six (6) months after respondent's initial
18 enrollment unless the Board or its designee agrees in \Hiting to an extension of that time.
19 The Program shall consist of a Comprehensive Assessment program comprised of a two
20 (2) day assessment of respondent's physical and mental health; basic clinical and communication
21 skills common to all clinicians: and medical knowledge. skill and judgment pertaining to
22 respondent '.s area of practice in which respondent was alleged to be deficient. and at minimum,
23 a forty (40) hour program of clinical education in the area of practice in which respondent was
24 alleged to be detkient and which takes into account data obtained from the assessment,
25 Decision(s}. Accusation(s). and any other information that the Board or its designee deems
26 relevant. Respondent shall pay all expenses associated with the clinical training program.
27 Based on respondent's perf(.xmance and test results in the assessment and clinical
28 education. the Program will advise the Board or its designee of its rccornmendation(s) for the
8
STlPl.I./\TFD SETTLE:\IE>:T AND DISCIPLINARY ORDER (Case :'\o. 09-20 12-223599)
scope and length of any additional educational or clinical training, treatment for any medical
2 condition, treatment for any psychological condition, or anything else affecting respondent's
3 practice of medicine. Respondent shall comply with Program recommendations.
4 At the completion of any additional educational or clinical training, respondent shall
5 submit to and pass an examination. Detennination as to whether respondent successfully
6 completed the examination or successfully completed the program is solely within the program's
7 jurisdiction.
8 If respondent fails to enroll. participate in. or successfully complete the clinical training
9 program within the designated time period. respondent shall receive a notification from the
10 Bourd or its designee to cease the practice of medicine within three (3) calendar days after being
II so notified. The respondent shall not resume the practice of medicine until enrollment or
12 participation in the outstanding portions of the clinical training program have been completed.
13 If the respondent did not successful! y complete the clinical training program, the respondent shall
14 not resume the practice ofmedicine until a final decision has been rendered on the accusation
15 and/or a petition to revoke probation. The cessation of practice shall not apply to the reduction
16 ofthe probationary time period.
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9. MONlTORIJ'\G- PRACTICE. \\'ithin thirty (30) calendar days of the effective
date of this Decision, respondent shall submit to the Board or its designee for prior approval as a
billing monitor. the name and quali tkations of one or more licensed physicians and surgeons
·whose licenses arc valid and in good standing. and \\ ho arc preferably American Board of
Medical Specialties (ABMS) certified. A monitor shall have no prior or current business or
personal relationship \vith respondent, or other relationship that could reasonably be expected to
compromise the ability of the monitor to render fair and unbiased reports to the Board, including
but not limited to any form of bartering. shall be in respondent's field of practice. and must agree
to serve as respondent's monitor. Respondent shall pay all monitoring costs.
The Board or its designee shall provide the approved monitor with copies of the Decision,
Stipulated Settlerm:nt and Disciplinary Order, Accusation No. 09-2012-223599. and a proposed
monitoring plan. Within fifteen ( !5) calendar days of receipt ofthe Decision, Stipulated
9
ST!Plii.ATED SETTLEI\IENT AND DISCIPLINARY ORDER (Case No. 09-201 2-223599)
Settlement and Disciplinary Order. Accusation No. 09-2012-223599. and proposed monitoring
2 plan, the monitor shall submit a signed statement that the monitor has read the Decision,
3 Stipulated Settlement and Disciplinary Order, and Accusation No. 09-2012-223599, fully
4 understands the role of a monitor, and agrees or disagrees with the proposed monitoring plan.
5 If the monitor disagrees with the proposed monitoring plan. the monitor shall submit a revised
6 monitoring plan with the signed statement for approval by the Board or its designee.
7 Within sixty (60) calendar days of the eftective date of this Decision. and continuing
8 throughout probation. respondent's practice shall be monitored by the approved monitor.
9 Respondent shall make all records available for immediate inspection and copying on the
10 ! premises by the monitor at all times during business hours and shall retain the records for the
II entire tenn of probation.
12 If respondent fails to obtain approval of a monitor within sixty (60) calendar days of the
13 effective date of this Decision, respondent shall receive a notilication from the Board or its
14 designee to cease the practice of medicine within three (3) calendar days after being so notified.
15 Respondent shall cease the practice of medicine until a monitor is approved to provide monitoring
16 responsibility.
17 The monitor shall submit a quarterly written report to the Board or its designee which
18 includes an evaluation of respondent's performance, indicating vvhether respondent's practices
19 are vvithin the standards of practice of medicine, and whether respondent is practicing medicine
20 safely. It shall be the sole responsibility of respondent to ensure that the monitor submits the
21 quarterly written reports to the Board or its designee within ten (I 0) calendar days after the end
22 of the preceding quarter.
23 If the monitor resigns or is no longer available. respondent shall. within five (5) calendar
24 days of such resignation or unavailability. submit to the Board or its designee, for prior approval,
25 the name and qualifications of a replacement monitor who will be assuming that responsibility
26 within fifteen ( 15) calendar days. If respondent fails to obtain approval of a replacement monitor
27 v.ithin sixty (60) calendar days of the resignation or unavailability of the monitor, respondent
28 shall receive a notification from the Board or its designee to cease the practice of medicine within
10
STIPt:l.ATED SETrt.El\1ENT AND DISCIPLINARY ORDER (Case No. 09-2012-223599)
three (3) calendar da)s after being so notified respondent shall cease the practice of medicine
2 unti I a replacement monitor is approved and assumes monitoring responsibility.
3 In lieu of a monitor. respondent may participate in a professional enhancement program
4 equivalent to the one offered by the Physician Assessment and Clinical Education Program at the
5 Cniversity of California. San Diego School of Medicine. that includes. at minimum, quarterly
6 chart review. semi-annual practice assessment. and semi-annual review of professional growth
7 and education. Respondent shall participate in the professional enhancement program at
8 respondent's expense during the term of probation.
9 I 0. NOTIFICATION. Within seven (7) days of the effective date of this Decision,
10 the respondent shall provide a true copy of this Stipulated Decision and Disciplinary Order and
II Accusation "Ko. 09-2012-223599 to the Chief of StatT or the Chief Executive Officer at every
12 I hospital where privileges or membership are extended to respondent, at any other facility where
13 respondent engages in the practice of medicine, including all physician and locum tenens
14 registries or other similar agencies, and to the Chief Executive Officer at every insurance carrier
15 which extends malpractice insurance coverage to respondent. Respondent shall submit proof of
16 compliance to the Board or its designee within fifteen ( 15) calendar days.
17 This condition shall apply to any change(s) in hospitals, other facilities or insurance carrier.
18 ll. SUPERVISION OF PHYSlCIA"K ASSISTANTS AND/OR NURSE
19 PRACTIJIONERS. During probation. respondent is prohibited from supervising physician
20 assistants and/or nurse practitioners.
21 J 2. OBEY ALL LAWS. Respondent shall obey all federal, state and local laws, all
22 rules governing the practice of medicine in California and remain in full compliance with any
23 court ordered criminal probation, payments, and other orders.
24 13. QUARTERLY DECLARAT!O~S. Respondent shall submit quarterly declarations
25 under penalty of perjury on forms proYided by the Board, stating whether there has been
26 compliance with all the conditions of probation.
27 Respondent shall submit quarterly declarations not later than ten (I 0) calendar days after
28 the end of the preceding quarter.
II
STIPULATED SErf LEME~T .'-\ND DISCIPLINARY ORDER (Ca:.e No. 09-2012-223599)
14. GENERAL PROBATION REQUIREMENTS.
2 Compliance with Probation Unit
3 Respondent shall comply with the Board's probation unit and all terms and conditions of
4 this Decision.
5 Address Chani!es
6 Respondent shall. at all times, keep the Board informed of respondent's business and
7 residence addresses. email address (if available). and telephone number. Changes of such
8 1 addresses shall be immediately communicated in writing to the Board or its designee. Under no
9 circumstances shall a post ot1ice box serve as an address of record. except as allowed by Business
10 and Professions Code section 2021 (b).
l 1 Place of Practice
12 Respondent shall not engage in the practice of medicine in respondent's or patient's place
13 of residence. unless the patient resides in a skilled nursing facility or other similar licensed
14 lacility.
I 5 License R~Il~wal
16 Respondent shall maintain a current and renewed California physician's and surgeon's
17 license.
18 Travel or Residence Outside California
!9 Respondent shall immediately inform the Board or its designee, in writing, of travel to any
20 areas outside the jurisdiction of California \vhich lasts, or is contemplated to last, more than thirty
21 (30) calendar days.
22 In the event respondent should leave the State of California to reside or to practice
23 respondent shall notify the Board or its designee in writing thirty (30) calendar days prior to the
24 dates of departure and return.
25 15. INTERVIEW WITH THE BOARD OR ITS DESIGNEE. Respondent shall be
26 available in person upon request for interviews either at n:spondent's place of business or at the
27 probation unit office. with or without prior notice throughout the term of probation.
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ST!Pt I! A lED SETTl.E!I.IFNT A'JD DISCIPLI'JARY ORDER (Case ~o. 09-2012·223599)
16. NON-PRACTICE WHILE ON PROBATION. Respondent shall notify the Board
or its designee in writing within fifteen ( 15) calendar days of any periods of non-practice lasting
more than thirty (30) calendar days and within fifteen ( 15) calendar days of respondent's return
to practice. Non-practice is defined as any period of time respondent is not practicing medicine
in California as dt:llned in Business and Professions Code sections 2051 and 2052 for at least
forty ( 40) hours in a calendar month in direct patient care, clinical activity or teaching, or other
activity as approved by the Board. All time spent in an intensive training program which has
been approved by the Board or its designee shall not be considered non-practice. 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.
i\ Board-ordered suspension of practice shall not be considered as a period of non-practice.
In the event respondent's period of non-practice while on probation exceeds eighteen (18)
calendar months, respondent shall successfully complete a clinical training program that meets
the criteria of Condition 18 of the current version ofthc Board's "Manual of Model Disciplinary
Orders and Disciplinary Guidelines'' prior to resuming the practice of medicine.
Respondent's period of non-practice while on probation shall not exceed two (2) years.
Periods of non-practice will not apply to the reduction ofthe probationary term.
Periods of non-practice will relieve respondent of the responsibility to comply with the
probationary terms and conditions with the exception of this condition and the follmving terms
and conditions of probation: Obey Alll.~tws; and General Probation Requirements.
17. COMPLETION OF PROBATION. Respondent shall comply with all financial
obligations (e.g .. restitution. probation costs) not later than one hundred t\vcnty ( 120) calendar
da) s prior to the completion of probation. Upon successful completion of probation, respondent's
certificate shall be fully restored.
18. VIOLATION OF PROBATION. Failure to fully comply with any term or condition
of probation is a violation of probation. If respondent violatc:s probation in any respect. the
Board, after giving respondent 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
13
STIPULATED SEn'LEMENT AND DISCIPLINARY ORDER iCase No. 09-2012-223599)
Probation, or an Interim Suspension Order is filed against respondent during probation, the Board
2 shall have continuing jurisdiction until the matter is final, and the period of probation shall be
3 extended until the matter is final.
4 19. LICET"SE SURRENDER. FollO\ving the effective date of this Decision, if
5 respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy
6 the terms and conditions of probation, respondent may request to surrender his or her license.
7 The Hoard reserves the right to evaluate respondent's request and to exercise its discretion in
8 determining whether or not to grant the request, or to take any other action deemed appropriate
9 and reasonable under the circumstances. Upon formal acceptance of the surrender, respondent
10 shall within fifteen ( 15) calendar days deliver respondent's \Vallet and wall certificate to the
11 Board or its designee and respondent shall no longer practice medicine. Respondent will no
12 longer be subject to the terms and conditions ofprobation. If respondent re-applies tor a medical
13 I icensc. the application shall be treati!d as a petition for reinstatement of a revoked certificate.
14 20. PROBATIO]'.; MONITORIKG COSTS. Respondent shall pay the costs associated
15 with probation monitoring each and every year of probation. as designated by the Board, which
16 may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of
17 California and delivered to the Board or its designee no later than January 31 of each calendar
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STlPUI.ATED SETTLE\IENT A~D D!SClPL!'\t\RY ORDER (Case No. 09-2012-223599)
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ACCEI~T ANCE
I haw carefully read the above Stipulated Settlement and Disciplinary Order and have fully
discussed it with my attorney. Peter R. Osinofl~ Esq. I understand the stipulation and the effect it
will have on my Ph]sician 'sand Surgeon's Certificate No. A39992. I enter into this Stipulated
Settlement and Disciplinary Order voluntarily. knowingly, and intelligently. and agree to be
bound bv the Decision and Order ofthe Medical Board of California. · n A
DATED: /f)J}_tt j.)_-f1\ )(/(; dt.tJL f} ~ .
1
fF If .q . - 7 f ~ RICHARD BERTO?\ MANTEL -· M.D.
.; Re~pcndcnt
I have read and fully discussed with respondent Richard Berton Mantell, M.D., the terms
and conditions and other matters contained in the above Stipulated Settlement and Disciplinary
Order. I approve its form and content.
DATED: ~-/tv!t L -PE' .. R R. OSI!':OFF, ESQ. Attorney tor Respondent
ENDORSEMENT
The f()regoing Stipulated Settlement and Disciplinary Order is hereby respectfully
submitted for consideration by the Medical Board ofCalitbmia.
Dated: ;J'j;61 ~ PI~ Respectfully submitted.
SD201570v5n Ooc No 81 .l357S7
KA\11\I.A D. HARRIS Attorney General of California ALEXA:SDRA M. ALVAREZ SUpervising Deputy Attorney General
: -~ --:::::;::> _v__ - /r: "/- ~ . c::::;::: ,._~--$-; 1 JosEPH F. McKFi\:-.IA 111 ' . Deputy Attorney General \) Atlorneys for Comp/ainanl
IS
STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (Case 1'\o. 09-2012-223599)
Exhibit A
Accusation No. 09-2012-223599
!I ll I KAivlALA D. HARRIS . Attorney General ofCaliforn:a
2 I ALEXANDRA M. ALVAREZ
I. Supervising Deputy Attorney General
3 I JOSEPH F. l'vfCKENNA III 1 Depcny Attorney Gene;a!
41': State Bar No. 231195
I. 600 West Broadwa)', Suite 1800
5 1 San Diego, CA 92101 I. P.O. Box 85266
6 j: San Diego, CA 92186-5266 1 Telephone: (619) 645-2997
7 !I Facsimile: (619) 645-2061
8 h Auorneysfor Complainant ;I
9'
10 \l
Fl eo STATE CALIFORNIA
M~:r~r,-~ ~: ANALYST
BEFORE THE
11 :1 ji
12 11
!VIEDICAL BOARD OF CALIFOR.'\'IA DEPARTYIE!\'T OF CONSl:MER A.FFAIRS
STATE OF CALIFORNIA
11 ,1--h ---f -------,, ~ In t e i\1attcr o the Accusation Against: Case 1\o. 09-2012-223599
14 J• RICHARD BERTON MA.'\TELL, ;'.1.D. i 34022 Blue Lantern Street
15 l Dana Point, CA 92629-2501
16 I Physician's and Surgeon's Certificate i ~o. A39992,
17 II 1s 11
--------------------------------~
Respo:1dent.
19 ;1
20 !! ComplainanT alleges:
ACCUSATION
21 1\ PARTIES ll
~., lj .:..,.:.., !· l. Kimberly Kirchme;.er (Complainant) brings this A:cusation solely in her official
23 \ capaci:y as tte Executive Director of the ~1edical Board of California, Department ofCons'Jmer
24 ,I Affairs, and net otherwise.
1 "
1
: 2. On or about June 30, 1983, the ~~1ed~ca1 Board of California issued Physician's and
"6 li· L ;
il 27 ll
Stlrgeon's Certificate ~umber A39992 to Richard Berton Mantell, YLD. (respondent). The
Physician's and Surgeon's CertifLcate was in full force and effect at all times relevant to the
I j
I ::s I ::.:harges and allegations bro•Jght herein and will expire on May 31, 2017, unless renewed. l
_______ l Accusation Case No. 09·2012-223599\
24 1
II, 25 Jl
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JlJRISDICTIO:'\
3. This Accusation is brought before the Medical Board of California (Board),
Department of Consumer Affairs, under the authority of the following laws. All section
references are to the Business a:1d Professions Code (Code) unless otherwise indicated.
4. Section 2227 of the Code provides that a licensee who is found guilty under the
Medical Practice Act :nay have his or her license revoked, suspended for a period not to exceed
one year, placed on probation and required to pay the costs of probation monitoring, be publicly
reprimanded which may include a requirement that the licensee complete relevant educational
courses, or have such other action taken in relation to discipline as the Board deems proper.
5. Section 2052 of the Code states:
"(a) Notwithstanding Section 146, any person who practices or attempts to
practice, or who advertises or ho Ids himself or herself out as practicing, any
system or mode of treating the sick or afflicted in this state, or who diagnoses,
treats, operates for, or pres-::ribes for any ailment, blemish, defonnity, disease,
distigurement, disorder, injury, or other physical or mental condition of any
person, without having at the time of so doing a valid, unrevoked, or unsuspended
certificate as provided in this chapter or without being authorizec to perform the
act pursuant to a certiftcate obtained in accordance with sam~ other provision of
law is guilty of a public offe:1se, punishable by a fine not exceeding ten thousand
dollars ($1 0,000), by imprison:nent pursuant to subdivision (h) of Sectlon 1170 of
the Penal Code, by imprisonment in a county jail not exceeding one year, or by
both the fine and either imprisonment.
"(b) Any person who conspires \Vith or aids or abets another to commit any
act described in subdivision (a) is guilty of a public offense, subject to the
punishment described in that subdivision.
"(c) The remedy provided in this section shall not preclude any other remedy
provided by law."
28 11 Ill
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!I" Accuslt:c:n Case No. 09-2012-223 599[
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6. Section 2234 ofti:e Code states:
''The board shall take action against any licensee v;ho is charged with
unprofessional concuct. In addition to other provisions of this article,
unprofessional conduct includes, but is not limited to, the following:
"(a) Violating or attempting to violate, directly or indirectly, or assisting in or
abe:ting the violation of, or conspiring to violate, any provision of this chapter.
"(b) Gross negligence.
"(c) Repeated negligent acts. To be repeated, there must be two or
more neg;igenr acts or omissions. An i:litial negligent act or omission fol!owed by
a separate and distinct depart'Jre from the applicable sta:1dard of care shall
co:1stitute repeated negligent acts.
"(d) bcompetence.
''(e) The commission of any act involving disho:1esty or corruption which is
substantially related to the qual:ficaticns, functions, or duties of a physician and
surgeon.
"(f) r\ny action or conduct wh!ch would have warranted the denial of a
certi tlcate.
7. Unprofes:;ional conduct :~nder section 2234 oft:le Code is conduct \vhich breaches
the rules or ethical code of the medical profession, or conduct which is unbecoming to a member
h good standing of the medical profession, an:i which demonstrates an unfitr.ess to practice
medicine. (Shea v. Board of Medical F-xaminers (1978) 81 Cal.App.3d 564, 575.).
8. Section 2238 of the Code stares
"A violation of any federal statute or federal regulation or any of the statutes
or regulations of this state regulating dangerous drugs or controlled substances
constitutes unp;ofessional conduct."
9. Section 2242 of the Code states:
"(a) Prescribing. dispensing, or furnishing dangerous drugs as defined in
3 Acc:.tsa:ion Case >Jo. 09-2012·223599
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Section 4022 without an appropriate prior examination and a medical indication,
constitutes tmprofessional conduct.
10. Section 2261 of the Code states:
"Knowingly making or signing any certificate or other document directly or
indirectly related to the practice of medicine ... which falsely represents the
existence or nonexistence of a state of facts, constitutes unprofessional conduct."
11. Section 2264 of the Code states:
"The employing, directly or indirectly, the aiding, or the abetting of any
unlicensed person or any suspended, revoked, or unlicensed practitioner to engage
in the prac~ice of medicine or any other mode of treating the sick or afflicted which
req'..lires a license to practice constitutes unprofessional conduct."
12. Section 2266 ofthe Code states:
"The failure of a physician and surgeon to maintain adequate and accurate
records relating to the provision of services to their patients constitutes
unprofessional cc:1duct."
13. Section 3501 ofthe Code states:
"(1) 'Bo~rd' means the Physician Assistant Board.
"(4) 'Physician ass:stam' means a person \vho meets the requirements of this
chapter and is licensed by the board.
"(5) 'Supervising physician' means a physician and surgeon licensed by the
?vkdical Board of California or by the Osteopathic Y!edica! Board of California
who supervises one or more physician assistants, who possesses a current valid
license to practice medicine, and who is not currently on disciplinary probation for
improper use of a physician assistant.
''(6) 'Supervision' means that a licensed physician and surgeon oversees th0
a.::tivities of, a1:d accepts responsibility for, the medical services rendered by a
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Accu:>a!io:'l Cr.se >lo 09·2012-2235991
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physician ass:s:ant.
.. (7) 'Regulations' means the rules and regulations as set forth in Chapter 13.8
(commencing vvith Section 1399.500) of Title 16 of the California Code of
Regulatior.s.
"
"( 1 0) 'Delegation of services agreement' means the writing that delegates to a
phys:cian assistant from a supervising physician the medical services the physician
assis:ant i!i authorized to perform consistent with subdivision (a) of Section
1399.540 of Title 16 of the California Code of Regulations.
"(11) 'Other specified medkal services' means tests or examinations
performed or ordered by a phy!iician assistant practicing in compliance with this
l:hapter or regulations of the )iiedical Board ofCalifor:tia promulgated under this
chapter.
"(b) A physician assistall! acts as an agent of the st:pervising physician when
performing any activity authorized ':>y this chapter or regula~ions adopted under
tb is chapter."
14. Se;::tion 3502 ofthe Code states:
''(a) Notwithstanding any other provision oflaw, a physician assistant may
perform those medical services as set forth by the regulations adopted under this
chapter when the services are rendered under the supervision of a licensed
physician and surgeon who is not subject to a disciplinary condition imposed by
the Medical Board of California p:ohibiting that supervision or prohibiting the
cmt:Jloyocnt of a physician assistant.
''The supervising physician and surgeon shall be physically available to the
physician assistant for consul:ation w!len su~h assistance is rendered ....
"(c)( l) A physician assistant and his or her supervising physician and surgeon
sh~t: establish wri!tcn guidelines for the adequate supervision of the physician
5 Accusation Case ~o. 09-2012-223599
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assis:ant This requirement may be satisfied by the supervising physician and
surgeon adopting protocols for some or all of the tasks performed by the physician
assistant The protocols adopted pursuant to this subdivision shall comply with the
following requirements:
"(A) A protocol governing diagnosis and management shall, a: a minimum,
include the presence or abse::ce of symptoms, signs, and other data necessary to
establish a diagnosis or assessr.~ent, any appropriate tests or studi~s to order, drugs
to recommend to the patient, and educat!on 10 be provided to the patient.
"(B) A protocol governing procedures shaH set forth the information to be
provided to the patient, the nature of the consent to be obtained from the patient,
the preparation ar:d technique of the procedure, and the follow up care.
''(C) Protocols shall be developed by the supervising physician and surgeon
or adoptd from, or referenced to, texts or other sources.
''(D) Protocols shall be signed and dated by the supervising physician and
surgeon and the physician assistant.
"(2) The supervising physician and surgeon shall review, countersign, and
date a sample consisting oi: a: a minimum, 5 percent of the medical records of
patier:ts treated by the physician assistant functioning under the protocols >Vithin
30 days of the date of treatment by the physician assistant The physician and
surgeon shail select for review those cases that by diagnosis, problem, treatment,
or proccdme represent, in h:s or her judgment, the most significant risk to the
patient.
"(3) P:otwithstanding any mher provision of law, the Medical Board of
California or boa:-d may establish other altemative mechanisms for the adequate
SU?ervision of the physician assistant.
15, Section 3502.1 ofthe Code states:
"(a) ln addition to the services authorized in the regulations adopted by the I
6 Ae<.::\tsation Cas.:: No. 09-2012-2235991
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t\1cdical Board of California, and except as prohibited by Section 3502, while
under the supervisior: of a licensed physicia:1 and surgeon or physicians and
s1.:rgeo:~s autho:izcd by law to supervise a physician assistant, a physician assistant
may administer or pnwide medicz.tion to a patient, or transmit orally, or in writing
0:1 a patient's record or i1: a drug order, an order to a person who may lawfully
furnish the medication or medical device pursuant to subdivisions (c) and (d).
"(I) A supervising physician and surgeon who delegates authority to
issue a drug order to a physician assistant may lioit rh!s authority by specifying
the manner in which the physician assistant may issue delegated prescriptions.
"(2) Each s:tpervising physician and surgeon who delegates the authority to
issue a drug order to a physiciar. assistant shall first prepare and adopt, or adopt, a
written, practice specific, fo:-mulary and protocols that specify all criteria for the
u~e of a particuiar drug or dev:ce, ar.d any contraindications fo:- the selection.
Protocols for Schedule Jl con:ro:led substances shall address the diagnosis of
illness, injury, or condit:on for which the Schedule II controlled substance is being
administered, provided, or iss:.red. The drugs listed in the protocols shall constitute
the tormulary ar:d shal! include only drugs that are appropriate for usc in the type
of practice engaged in by the supervising physician and surgeon. \Vhen issuing a
drug order, the physiciar. assistant is acting on be~1alf of and as an agent for a
s·..tpervising physician and surgeon.
"(b) ·Drug order,' for purposes of this section, means an order for medication
that is dispensed to cr for a patient, issued and s;gned by a physician assistant
actir:g as an individcml practitioner within the meaning of Section 1306.02 of Title
2: of the Code of Federal Regulations. Not\vithstanding any other provision of
!aw, (l) a drug or de~ issued pursuar.t to this section shall be treated in the same
m<:nr.er as ;.:, prescripti0n or or de: of the supervising physician, (2) all references to
'p~escription' in this code and the I-kalth and Safety Code shall include drug
orders is5ued phy»ician assistants pursuant to authority granted by their
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supervising physicians ar.d surgeons, and (3) the signature of a physician assistant
on a drug order shall be deemed to be the signature of a prescriber for purposes of
this code and the Health and Safety Code.
"(c) A drug order for any patient cared for by the physician assistant that is
issued by the physician assistant shall either be based on the protocols described in
subdivision (a) or shall be approved by the supervising physician and surgeon
before it is filled or carried ou:.
"(1) A physician assistant shall not administer or provide a drug or issue a
dn:g order for a drug other than for a drug listed in the formulary without advance
approval frorn a supervising physician and surgeon for the particular patient. At
the direction and under the supervision of a physician and surgeon, a physician
assistant may hand to a patient of the supervising physician and surgeon a properly
labeled prescription drug prepackaged by a physician and surgeon, manufacturer
as defined in the Pharmacy Law, or a pharmacist.
"(2) A physician assistant may not administer, provide, or issue a drug order
to a patient for Schedule n through Schedule V controlled substances without
adva:1ce approval by a supervising physician and surgeon for that particular patient
unless the physician assistant has completed an education course that covers
contr,-:>lled su.bstances a:-~d that meets standards, including pharmacological content,
approved by the board. The education course shall be provided either by an
accredited continuing education provider or by an approved physician assistant
training program. Ifthe physician assistant \Viii administer, provide, or :ssue a
drug oruer for Schedule H controlled substances, the course shal! contain a
minimum of three hours exclusively on Scheeu!e II controlled substances.
Comp:ction of the requirements set forth in this paragraph shall be vedicd and
documer,ted in the manner established by the board prior to the. physician
assistant's use of a registration number issued by tbe United States Drug
Enforcement Administration to :he physician assistant to administer, provide, or
8 Accc:sation Case No. 09·20 12·223 599 1
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issue a crug o:-dcr to a patient for a controiled substance without advance approval
by a supe~vising physician and surgeon for that particular patient.
"(3) Any drug order issued by a p~ysician assistant shall be subject to a
reasonable quant:tative limitation consistent wi:h customary medical practice in
the supervisir.g p:1ysician and surgeon's practice.
"(d) A v.ritten drug order issued pursuant to subdivision (a), except a \vritten
drug order in a ?a~iem's medical record in a health facility or medical practice,
shall contain the printed name, a~dress. and telephone number of the supervising
physician and surgeon, the ;xinted or stamped name and license number of the
physician assistant, and the signature of the physician assistant. Further, a written
drug o:-der for a cor:trolled substance, except a written drug order in a patient's
medical rec:Jrd in a health facility or a medical practice, shall include the federal
controlled substances registration nurr:ber of the physician assistant and shall
otherwise comply wi~h :he provisions of Section 11162.1 of the Health and Safety
Code. Except as otherwise requircc icr w:-itter. drug o:-ders for controlled
substa:1;::es 1.:nder Section 1!162.1 o:the Health and Safety Code, the requirements
of this subdi\·ision may be mel through stamping or othenvise imprinting on the
supervising physiciar: and surgeon's prescription blank to show the name, license
number. and if applicable, the federal controlled substances registration number of
t:1e physician assistant, a:1d shaH be signed by the physician assistant. When using
a drug order, the physician assistant is acting on behalf of and as the agent of a
supervising physician and surgeon.
"(e) The medical record of any pt!cnt cared for by a physician assistant for
whom the physician assistant';; Schedule II drug order has been issued or carried
out shall be reviewed and countersigned and dated by a supervising physician and
surgeon within seven days.
"(f) :\H physician assistants who are autho~ized by their supervising
physici::ns to issue drug orde:-s for ccntro!lcd suh<>tances shall register with the
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Cnitcd States D:ug Enforcement Administration (DEA).
"{g) The board shall consult with the Medical Board of California and report
during its sunset review required by Division 1.2 (commencing with Section 473)
the impacts of exempting Schedule Ill and Schedule IV drJg orders from the
requirement for a physician and surgeon to review and countersign the affected
medical record of a patient."
16, Sectio:1 2069 ofthe Code, states:
"(a)( l) Notwithstanding any other la>v, a medical assistant may administer
medicatio:1 only by intradermal, subcutaneous, or intramuscular injections and
perform skin tests anc additional technical supportive services upon the specific
authorization at:d supervisiOn of a licensed physician and surgeon ... A medical
assistant may also perform all these tasks and services upon the specific
authorization of a physician assistant ...
"(2) The supervising physician and surgeon may, at his or her discretion, in
cons~.:lta:ion with the . ,. physician assistant, provide written instructions to be
followed by a medical assistant in the performance of tasks or supportive services.
These written instn.tctio:1s may provide that the supervisory function for the
medical assistant for these tasks or support:ve services may be delegated to the ...
physician assistant within the standardized procedures or protocol, and that tasks
may be performed when the supervising physician and surgeon is not onsite, if
either of the following apply:
,,
"(B) The physicia:1 ass:stant is functioning pursuant to rcguiatcd services
defined in Section 3502, including instructions for specific authorizations, and is
approved to do so by the supervising physician and su:-geon.
"(b) As used in this section and Sections 2070 and 2071, the following
definitions apply:
"{l) 'Medical assistant' means a person whv may be unlicensed, who
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performs basic administrat:ve, clerical, and technical supportive services in
comp!iance with this section and Sec!ion 2070 for a licensed physician and
surgeon ... or g:oup thereo(. for a medical or podiatry corporation, for a physician
assistant ... as provided in subdivision (a), or for a health care service plan, who is
at !east 18 years of age, a:1d \\ho has had at leas: the mi:1imum amount of hours of
appropriate ~raining pt:rst:ant to standards esmblished by the board. The medical
assistant shall be issued a certiticate by the training institution or instructor
indicating satisfactory comp!ction ofthe required training. A copy of the
ce:·t:ficate shall be retained as a reco;d by each employer of the medical assistant.
"(2) 'Specific authorizat:on' means a specific written order prepared by the
supervising physician and surgeon ... or the physician assistant ... as provided in
subdivision (a), authorizing the procedures to be performed on a patient, which
sh;:~li be placed in the patient's medica! record, or a s:anding order prepared by the
supe:·vising physician a!1d su;gecn ... or the physician assistant ... as provided in
subdivision (a), authorizing the procedures to be performed, the duration cfwhich
shall be consistent with accepted rr.edical practice. A notation of the standing
order shall be placed on :he p<:!tien:'s r:tcdicai reco:d.
"(3) 'Supervision' means the supervision of procedures authorized by this
section cy the fo!lov>ing prac:itioners, within the scope of their respective
JY2ct:c:es, who shall be physical:y present in the treatme!1t facility during the
perfcnnance of tlH":>Se procedures:
"(A) A licensed physician and surgeon.
"(C) A physician assistant ... as provided in s~tbdivision (a).
"(4)(A) 'Tec:mical supportive services' means simple routine medical tasks
and procedures that may be safely performed by a medical assistant who has
li:nited :raining and who functions ur.de; the supervision of a licensed physician
and surgeon ... or a ohvsicia:1 assist:mt ... as orovided in subdivision (a). - ~ •. 4
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"(c) l':othing in this section shall be cor.strued as authorizing any of the
following:
"(I) The licensure of medical assistants.
"(2) The administration of local anesthetic agents by a medical assistant.
"(4) A med:cal assistant to perform any clinical laboratory test or
examination for which he or she is not authorized by Chapter 3 (commencing with
Section 1200).
"(5) A ... physician assistant to be a laboratory director of a cli:-~ical
laboratory, as those terms are defined in paragraph (8) of subdivision (a) of
Sect:on 1206 and subdivision (a) of Section 1209.
"(d) A ... physician assista:-~t shall not authorize a medical assistant to
j:lerform any clinical laboratory test or examination for \vhich the medical assistant
is not authorized by Cl:ap:er 3 {commencing with Section 1200). A violation of
this subdh is ion constitutes unprvfessiona! cor.duct.
17. California Code of Regulations, title 16, section 1399.540, states:
"(a) A physician assistal'!t may only provide those medical services which he
or she is competent to perform and which are consiste:1.t with the physician
assistant's education, training, and experience, and which are delegated in writing
by a supervising physician who is responsible for the patier.ts cared for by that
physician assistant
"(b) The \Vriting wh!ch delegates the medical services shall be knowr: as a
delegation of services agreement. A delegation of services agreement shall be
signed and dated by the physician assistant and each supervising physician. A
delcga~ion of se:-vices agreement may be signed by more than one supervising
physician only if the same medical services have been delegated by each
s~1pcrvising physician. A physician assistant may provide medical services
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pursuant to more than or:e dekgation of services agreement.
The board or ~vfedical Board of California or their representative may
require proof or demonstration of competence from any physician assistant for any
tasks, procedures or management he or she is performing.
•'( d) A physician assistant shall consult with a physician regarding any task,
procedure or diagnostic problem which the physician assistant determines exceeds
his or her level of c;:,mpetence or shall refer such cases to a physician."
18. California Code of Regulations, r:tle 16, section 1399.541, states:
'·Because physician assistant practice is directed by a supervising physician,
and a physician assistant acts as an agent for that physician, the orders given and
tasks performed by a physician assistant shaH be considered the same as if they
had been given and performed by toe supervising physician. Unless otherwise
specified i:1 these regulations or in the delegation or protocols, these orders may be
initia~ed without the prior patient specific order of the supervising physician.
"In a;1y setting. including for example, any !i.::ensed health facility, out-patient
settings, patients' residences, residential facilities, and hospices, as applicable, a
physician assistant may, pursuant to a delegation and protocols where present:
'"(a) Take a pa:ient history; perform a physical examination and make an
assessment and diagnosis theref:-om; initiate, review and revise treatment and
therapy plans includ:ng p!ans for those services described in Section 1399.541 (b)
through Section 1399.541 (i) inclusive; and record and present pertinent data in a
manner meaningful to the physician.
"(b) Order or trans1:1it at; order for x-ray, other studies, therapeutic diets,
physical the;apy, occupational :herapy, respiratory therapy, and nursing services.
"(c) Orde~, tra:1smit an order for, perform, or assist in the performance of
laboratory procecures, screening pro::edures and therapeutic procedures.
"(d) Recognize and evaluate situations which call for immediate attention of a I physici2n ::r.d institute, whe!l necessary, treatmc:1t procedures essential for the Efe I
I 3 I Accusat\0:1 CaseNo. 09-2012-223599\
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of the patient.
''(e) Instruct and counsel patients regarding matters pertaining to their
physical and mental heait!:. Counseling may include topics such as medications,
diets, social habits, family pianning, nonnal gro\vth and development, aging, and
understanding of and !ong-:erm management of their diseases.
"(f) Initiate arraagements for admissions, complete fonns and charts pertinent
to the patient's medical record, and provide services to patients requiring
continuing care, mcluding patients at home.
"(g) Initiate and facilitate the referral of patients to the appropriate health
facilities, agencies, and resources of the community.
''(h) Admi::~ister or provide medication to a patient, or issue or transmit drug
orders orally or in wri:ing in accordance with the provisions of subdivisions (a)-(f),
inclusive, of Section 3502.1 ofthe Code.
''(2) A physician assistant may also act as first or second assistant in surgery
under the supervision of a supervising physician. The phys!cian assistant may so
act without the personal presence of the supervising physician if the supervising
physician is immediately available: to the physician assistant. "Immediately
available" means the physicia."1 is physically accessible and able to return to the
patient, witl:om any delay, upon the :equest of the physician assistant to address
<'.ny situation requiring the supervising physician's services."
19. C:~lifornia Code o:"Reguiations, title 16, section :399.545, states:
"(a) A supervising physician shali be available in person or by electronic
co:nmu::ica~ion at all times \vhen the physician assistant is caring for patients.
"(b) A su~crvising physician shall delegate to a physician assistant only those
tasks and procedures consistent with the s~1pervising physician's specialty or usual
and custo:mtry practice and with the patient's health and condition.
"(c) A supervising physician shall observe or review evidence of the
14
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physician assistar:t' s performa:-~ce of all tasks and procedures to be delegated to the
physician assistam until assered of competency.
"(d) The physician assistant and the supervising physician shall establish in
writing trans;:JOrt and back-up procedures for the immediate care of patients who
are in :-~eed of emergency care beyond the physician assistant's scope of practice
for such times \\hen a supervising physician is not on the premises.
··(e) A physician assistant and his or her supervising physician shall establish
in \vriting guiJe 1 ines for the adequate supervision of the physician assistant which
shall include ore or more of the following mechanisms:
"( l) Examinatio::~ of the patient by a supervising physician the same day as
care is given by the physician assistant;
''(2) Countcrsignamre and dating of all medical records written by the
physician assistar.t within thir:y (30) days that the care was given by the physician
assistant;
"(3) The supervising physician may adopt protocols to govern the
pertorn:ance of a physician assistar.t for some or all tasks. The minimum content
for a protocol governir.g ciagnosis and mar.agement as referred to in this section
shall i:K:ude the presence or absence of sy:nptoms, signs, and other data necessary
to e~tab:!sh a diagt~osis or assessmen:, any appropria:e tests or studies to order,
d:ugs to recomrr.end to the patier.t, and education to be given :he patient. For
prott'cols govcm:ng ?rocederes, the protocol shall state the information to be
given the patit:nt, the nature of the consent to be obtained from the patient, the
preparation and technique of the procedure, and the follow-up care. Protocols
shall be developed by the phys:cian, adopted from, or referenced to, texts or other
sources. Pro:ocols shall be signed and dated by the supervising physician and the
physiciar. assistant. The supervising physicia:~ shall review, countersign, and date
a minimum of 5% sample of medical records of patier.ts treated by the physician
assistan~ functior.ing under these protocols within thirty (30) days. The physician
Acc:.;s:lt:on Case 1\o. CS:·20i2-223599j
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shall select for review those cases which by diagnosis, problem, treatment or
procedure represent, in his or her judgment, the most significant risk to the patient;
"(4) Other mechanisms approved in advance by the board.
"(f) The supervising physician has continuing responsibility to follow the
progress of the patient and to make sure that the physician assistant does not
function autonomously. The supervising physician shall be responsible for ail
medical services provided by a physician assistant under his or her supervision."
20. Sec tim: 2285 of the Code states:
"The use of any fictitious, false, or assumed name, or any name other than his
or her own by a licensee either alone, in conjur.ction with a partnership or group,
cr as the name of a professional corporation, in any public communication,
advertisement, sign, or annour.cement of his o:- her practice without a fictitious-
name permit obtained pursuant to Section 2415 constitutes unprofessional conduct.
This section shall not a;;ply to the following:
"(a) Licensees who are emp:oyed by a partnership, a group, or a professional
corporation that holds a tlctitious name permit.
"(b) Licensees who contract \vith, are employed by, or are on the staff of, any
clinic licensed by the State Department of Health Services unde.r Chapter l
(commencing wi!h Scctior:. 1200) of Division 2 of the Health and Safety Code.
"(c) An outpatient surgery setting granted a certificate of accreditation from
an accreditation agency approved by the medical board.
"(d) A:1y medical school approved by the division or a faculty practice plan
con:-~ected with the mcd:cal school."
21. Section 2286 ofthe Code states:
"lt sl1all consritute unprofessionai conduct for any licensee to violate, to
attempt to violate, directiy or indirectly, to assist in or abet the violation of, or to
conspire to viola~e any provision or term of Article 18 (comrnencing with Section
2400), of the 1vlosconc-Knox Professional Corporation Act (Part 4 (commencing
16 .".ccusa~ior. Case No. 09-2012-2235991
with Section 13400) ofDivisbn 3 ofTitie l of the Corporations Code), or of any
2 : rules and regulations duiy adopted under those laws."
3 22. Section 2406 of the Code states:
4 "A medical corporation ... is a corporation that is authorized to render
5 profess:onal services, as defined in Section 13401 of the Corporations Code, so
6 , long as that corporat:on and its shareholders, officers, directors, and employees I
" ! rendering professional servkes who are physicians a:1d surgeons, psychologists,
8 registered nurses, optcmetrists, podiatrists, chiropractors, acupuncturists,
9 naturopathic doctors. phys:cal therapists, occupational therapists, or, in the case of
10 a medical corporation only, physiciar. assistants, marriage and family therapists,
11 clini.:al counsebrs, or clinical social workers, are i:1 compliance with the
12 \1oscone-Kr.ox Professional Corporation :\ct, the provisions of this article, and all
13 other sta:utcs ar~d regu;ations now or hereafter ena.:ted or adopted pertaining to the
14 corpora: ion and the conduct o:- its affairs.
15 "With respect to a medical corporation ... the governmental agency referred
16 to in the Moscone-Knox Professional Corporation Act is the board."
17 23. Sectior. 2410 of the Co:le states:
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"A medical ... corporation shall not co or fail to do any act the doing of which
or the failure to do which wo:.~ld constit:.~te unprofessional conduct under any
statute or regulation now or hereafter in effect. In the co:1duct of its practice, it
shall observe ar.d be bound by such statutes and regulations to the same extent as a .
licensee under this ch1p:cr."
24. Section 2415 cf ihe Code states:
"(a) Ar.y physician a:1d surgeon ... who as a sole propric;or, or in a
partnership, group, or pro!essional corporation, desires to practice under any name
that would othenvise be a vio:ation of Section 2285 may practice under that name
if the p:-oprietor, partnership, group, or corporation obtains and maintains in
current status a r!ctit!ow;-narr.e permit issued by the Division of Licensing ...
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under the provisions of this section.
"(b) The division or the board shall issue a fictitious-name permit authorizing
the holder thereof to use the name specified in the permit in connection with his,
her, or its practice if the division or the board finds to its satisfaction that:
''( l) The applicant or applicants or shareholders of the professional
corpora:ion hold valic and ct.:rrcnt licenses as physicians and surgeons ...
"(2) The professional practice of the applicant or applicants is wholly owned
and er.tireiy co:1trolled by the applicant or applicants.
"(3) The r.ame under \Vhich the applicant or applicants propose to practice is
not deceptive, misleading, or confJsing.
"(c) Each permit shall be accompanied by a notice that shall be displayed in a
location readily visibic to patients and staff. The notice shall be displayed at each
place of business identified in the permi:.
'\e) Fictitio'Js·narr.e permits issued under this section shall be subject to
A:1icie 19 (commenci::g with Section 2420) pertaining to renewal of licenses,
except the division shall esta'Jlish procedures for the renewal of fictitious-r.ame
permits every two years on a:1 anai\ ersary basis. For the purpose of the
convers:on of existing permi:s to this schedule the division :nay fix prorated
renewal fees.
"(f) The division or the board may revoke or 5usper.d any permit issued if it
finds that the holder or holders of the permit are not in co:npliance with the
provisions of this section or any regulations adopted pursuant to this section. A
proceed:ng to revoke o; suspend a fictitious-name permit shall be conducted in
accordance with Section 2230.
"(g) A fictitious-name permit issued to any licensee in a sole practice is
automatically revoked in the event the licensee's ce:tificate to practice medicine
... is revoked.
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"(h) The division or the board may delegate to the executive director, or to
another officiai of the board, its authority to review and approve applications for
tlctitiot:s-name permits ar.d to issue those permits.
25. Sect:on 4022 ofthe Code states:
"Dangerous drug" or "dangerot:s device" means any drug or device unsafe for
self-use in hur~1ans or animals, and includes the following:
''(a) Any drug that bears the legend: "Caution: federal law
prohibits dispensing without prescription," "R.x only," or words cf similar import.
"(b) Any device tha; bears the s:atement: "Cam: on: federal law restricts this
device to sale by or on the order of a __ ," "Rx only," cr \vords of similar import,
the biank to be filled in with the designation of the practitioner licensed to use or
order usc of the device.
''(c) :\ny othe:- drug or device that by federal or state la\v can be lawfully
dispcr.scd only on prescription o: furnished pursuant to Section 4006."
26. Section 11153 of the H~alth a:1d Safety Code sta:es:
"(a) A prescription for a controlled substance shall on!y be issued for a
legi:imate :11edical purpose by ar: individual practitioner acting in the usual course
of his or her professiona! practice. The responsibility for the proper prescribing
ar.d dispensing of controlled substances is upon the prescribing practitioner, but a
corresponding responsibility rests wi~!: the pharmacist v:ho fills the prcs:::ription.
Except as :1uthorized by this division, the following arc not legal prescriptions:
(1) a!l order purporting to be a prescription which is issued not in the usual course
of ;xofcssional treatment or in lcgi:imate a:td authorized research; or (2) an order
for an addict or habir~tal user o: cornroilcd substances, which is issued not in the
course of protcss:o:-:a1 treatmen: or as part of an authorized narcotic t:eatmem
program, for the purpose of providing the user wi~h controlled substances,
sufficient to keep him or l:er comfortable by maintaining customary use.
19
Accusation Case No. 09·20!2·223599,
"(b) Any person who knowingly violates this section shall be punished by
imprisonment pursua:1t to subdivisio:1 (h) of Sectio:1 1170 of the Penal Code, or in
a county jail not exceecir.g one year, or by a fine not exceeding twenty thousand
dollars ($20,000), or by both that fine and imprisonment.
FIRST CAt3SE FOR DISCIPL.IJ\'E
(Gross Negligence)
27. Respondent is subject to disciplinary action under sections 2227 and 2234, as defined
by sections 2234, subdivision (b), 3501, 3502 and 3502.1, of the Code, and California Code of
Regulations, Title 16, sections 1399.540, 1399.541 and 1399.545, in that he committed acts of·
gross negligence, as the St:pervising physician, by failing to properly supervise PA B.E., a
physician assistan;, in his care ar.d treatment of patients P.H., P.P., L.A., Vv'.J., K.M., A.W., E.R.
and T.T., as more particularly alleged he;einaftcr:
28. On or about May 10, 2000, Physician Assistant License Number PA 15350 was
issued by the Physician Assista:1t Board of California, Department of Consumer Affairs, to
Physician Assistar.t B.E. (PA B.E.) PA B.E. was anc is the sole o\vner and shareholder ofFirst
Choice Clinica Familiar, (FCCF) a medical clinic that he opened tor business in 2011.
29. Respor.dcnt entered into a "Medical Director Agreement" (the Agre.ement) with
FCCF on or about June 21, 2012. The Agreemc:tt described respondent's duties including,
'20 II establishir:g "medical practice protocols'' and completing "all requirements necessary to qualify
21 ll the }vfedical Corporation [FCCF] ro conducr business in the State of California." (Emphasis
22 !l added.) The Agreement set respondent's compensation at five thousand ($5,000) dollars a month 'I
23 II and, FCCF reserved the disc~etion to pay respondent a bonus. after completion of one (l) year of !,
24 J! service.
25 !I 30. Respondent entered into a '"Delegation of Services Agreement" (the Delt:gation) with l
26 1 PA B.E. on or about July 14, 2011. The Delegation defined the terms and conditions uncler which I
27 j rcsponder.t would serve as a supervising physician of PA B.E. including, respondent "shall
28 !I rev1ew. audit and counter-sign :_v,i£hin seven (7) days the medical record of any patient/or whom II li-----~--- 20
-----·----~- ----·--· \i :\ccusa::on Case >lo. 09-2012-2235991
I ~ ' i: j; ii [PA B.E.J issw:s or carries our a drug order. For o!her patients ... [respondent] shall review,
211 audit and counrmign mrr n"dica! "co'd wrirten by [ <esponder.t} within smn f7) days (no
3 'I more tha11 thirty (30) days ofrhe encounter (Emphasis added.)
3 J. Pursuant to undated and unsigned "Comro! (sic) Substance Protocol for Responsible 4 !I 5 !I Prescribing," (the Protocols) :he general principles of pain management were established for
6l!.· trea:ing patients seeking chronic pain :nanagement at FCCF. The Protocols identified the
7 principles of pain management, and included ste.ps for FCCF's pain management team to follow.
8 i II The Protocols highlighted one of its pnir. manager:1ent goals indicating "records and past !I
lJ ll presc:-ibi:;g hi:::tory is :nonumental with regards to present and future treatment considerations."
10 ~~~ Significantly, the Protoco:s make dear that ·'[n]o patiem takmg a controlled substance shall be
I a!lo'1 ed to continue treatment H ith a hzstor;· of any i!lzcit drug or alcohol abuse history or
II i 2 'I addiction." (Emphasis added.) Res;Jondent's fJll typewritten name appears on the last page of
13 ), the Protocols undc:· the title, "Medical Director."
p !4 li
•· 32. From 0:1 or about Ju:y 14,2011, through in or around February 2013, res?ondent
15 jl performed hi~ assigned dt:ties under the Delegatior., >.kdical Director Agreement and Protocols ,j
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including, luving re\ iewed and s:gr.ed off on nearly every medkal record and/or chart note for
care and treatment provided by PA B.E. to the following patients:
Patient P.H.
(a) PA B.E. treated patient P.H. for knee pain. PA B.E. saw patient P.H. at
fCCF approximately seven (7) times between on or a':Jou: August I, 20 11, and on
or abom July 9, 2012. P:\ B.E. wrcte a prescription for:-:o~co 1 and Xanax2 for
patient PJI. th~t \vas filled on or about July 7, 2011; however, the first clinic no:e
: Norco is a bra:td :1ame for acetaminophen and hydrocodone bitartrate, a Schedule III controlled s:.tbstance ~:.:rsuan~ to Health ::.nd Safety Code section 11056, sul;)division (e), and a I dangerous drug purs~::mt to Busirless and Professions Code section 4022. ~orco is an op:oid pain medicaticn :hat is used to relieve modera:e to seve:-e pain.
26 Iii j 2 Xan~x is d brand r:ae1f~ for a:prazolam (a benzodiazcpine), a Schedule IV controlled
27 substa:1::e pursuant !o llea!th ar.d Safety Code section 11057, subdivision (d), and a dangerous
i drug pursuan: to Bus;ness and Professions Code section 4022. I' 1
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for patient P.H. is not until on or about August l, 2011.
(h) On patient P.H. 's first docu:nented visit at FCCF on or about August l,
2011, a urine drug screen was performed that tested "positive" for
metblmphetamine,3 but "negative" for opioids or benzodiazcpincs. Patient P.H.
told PA B.E. that he used methamphetamine only "once in awhile" and, that he
used it for social use only. :.lotwithstanding patient P.H.'s admitted i!legal drug
use during his initial documented visit with PA B.E., he prescribed patient P.H.
Norco and Xanax. A scco:1d urine drug screen for patient P.H. was taken on or
about October 13, 20 ll, and every drug tested for was documented as negative.
(c) On or about February 27,2012, an x-ray of patient P.H.'s knee was
o~dered, but there was no record provided of any results. PA B.E. recorded
minimal infor:na:ion regarding patient P.H.'s unilateral edema in his chart note,
which allegedly was causing his supposed need for opioids for pain relief. At no
time in PA B.E.'s care and treatment of patient P.H. did he conduct a mental status
examination. l\1vst of patient P.tl.'s medical records made by PA B.E. are
partially illegible.
(d) Respondent committed gross negligei~ce, as the supervising physician,
by fai:ing to properly supe;visc PA B.E. 'scare and treatment of patient P.H.,
which included, but was no: limited to, the fol:owing:
(l) PA B.E. failed to comply \vitli FCCF's Protocols;
(2) PA B.E. failed to discuss each controlled substance prescription with
respondent prio: to issuing it to patient P.H.;
(3) PA B.E. failed to adequately evaluate pa:icnt P.H. 's unilateral edema;
(4) PA B.E. failed to appropriately do:;umcnt, evaluate and manage patient
P.H.'s anxiety;
3 ?-vfethampheta:11ine is a Schedule II controlled substartce ;:>ursuant to Health and Safety I,
Code section ll 055, subdivision (d). I
I 22 d
-------------A-c_:.:_u,--::;-\l-on-Case >J-o. 09-2012·2-23599.
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(5) PA B.E. failed te adequately manage pat!ent P.H.'s chronic pain;
(6) PA B.E. failed to adequately document patient P.H.'s e1edical history
and/or social history;
(7) PA B.E. failed to adequately document patient P.H.'s pain history;
(8) PA B.E. failed to seek a referral for appropriate consultation for pain
management;
(9) PA B.E. prescribed opioids and benzodiazcpines to patient P.H.,
not'-vit!1standing patient P .H.'s admitted recent illegal use of methamphetamines;
(1 0) PA B.E. failed to do;:umer.t any discussion with patient P.H. regarding
the fac: that, notwithstanding prescriptions for 1'\orco and Xanax, patient P.H.'s
urine drug screens were negative for these controlled substances; and
(11) Respondent failed to adequately and appropriately supervise PA B.E.'s
;m1etice o: :r.edicinc wi~h patient P .H.
Patient P.P.
(e) PA B.E. treated pat:em P.P. tor back pain due :o surgery. PA B.E. saw
p2.tier.t P.P. at FCCf app~cximate!y seventeen (17) times between on o:- about July
20, 2011, and on or about Octobc: 10, 2012. Although PA B.E.'s first documented
visit with patient P.P. occurred 0:1 o:- Jbout July 20,2011, the Controlled
St:bstances lJtilization Review and Evaluation System (CURES)4 reports indicated
that PA B. E. had been prescribing controlled substances to patient P.P. since in or
a:o1.:nd ~1ay 2010. Be:ween on or about May 5, 2010 to December 23, 20!2,
4 The CURES is a program operated by the Cali!'ornia Department of Justice (DOJ) to assist health care practitioners in their efforts to ensure appropriate prescribing of controlled substances, a:1d law enforcement and regulatory agencies in their efforts !0 control diversion and abuse of controlled substances. (Health & Sa( Code, § 11165.) California law reqt:ires dispensing p7larmacies to report to the DOJ the dispensing of Schedule II, Ill and IV controlled substances as soon as reasonably possible after the p:-escriptions are filled. (Health & Saf. Code, § 11165, suod. (d).) The histo:y of controlled substances dispensed to a specific patient based on the data comaincd in the CURES is available to a health care practitioner who is treating that patic:1t. lHealth & Saf. Code,§ 11165. L subd. (a).)
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A<Mol;o~ Ca<O No. 09-2012-2235991
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PA B.E. issued forty-three (43) prescriptions to patient P.P. for Oxycontin, 5
Oxycodone,6 Alprazolam7 and Opana ER.s However, no documentation exists in
patien: P.P. 's medical records tha: PA B.E. ever saw patient P .P. in connect:on
with the issuance of these prescriptions. Patient P.P.'s medical records are largely
filled with illegible notations made by PA B. E., and they lack a complete history
taken of patient P.P. prior to PA B.E. prescribing him controlled substances for
pain and anxiety.
(f) On or abm.1t July 20, 2011, PA B.E. conducted a cursory physical
examination of patient P.P.; however, he did not documen: patient P.P.'s past
medical history, socia! history, or review of systems. PA B.E. recorded a cursory
history of patient P.P.'s pain history, but he did not conduct a mental status
examinat:on, drug or alcohol history, or psychiatric history of patient P.P. In fact,
on o:- about July 20,2011, PA B.E. prescribed Xanax for patient P.P. without any
diagnosis or documentation of any discussion with patient P.P regarding his
anxiety. On that same date, PA B.E. also noted that patient P.P. disclosed he was
"opioid dependent" and, that he wanted to start taking methadone' to decrease his
opioid dependence. Without having reviewed patient P.P.'s past medical records II It -----------
;·~ 5 Oxy;;ontin is a brand name for oxycodone, is a Schedule II controlled substance .
1
purs:.1ant to Health and Safety Code s_ection 11055, subdivision (b), and a dangerous drug ( pursuant to Business and Professio:1s Code section 4022.
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6 Oxycodone is a Schedule II controlled substance pursuant to Health and Safety Code section 11055, subdivision (b), and a dangerous drug pursuant to Business and Professions Code section 4022.
7 Alprazolam is a Schedule IV controlled substance pursuant to Health and Safety Code section 11057, subdivision (d), and a dangerous drug pursuant to Business and Professions Code section 4022.
I! II i/ e Opana ER is a brand name for oxymorphome hydrochloride, is a Schedule II controlled · substance pursuant tJ Health and Safety Code section 11055, subdivision (b), and a dangerous !! drug pursua:1t to Business and P10fessions Code section 4022.
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9 ~1ethadone is a Scnduie II controlled substance pursuant to Health and Safety Code section 11055, subdivision (c), and a dangerous drug pursuant to Business and Professions Code section 4022.
24 il-"~~ II Accusat'on Case No. 09·2012·223599!
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progress nates as to why his test results \Vere negative for opiates, ber.zodiazepines
and methadone, despite being prescribed these controlled substances by PA B.E.
(j) On or about September 30, 2011, a partially legible notation was made
in patient P.P.'s progress notes 1hat indicated his wife took his medications away
from him because she did not want him taking Oxycontin. P A B.E. did not
document any further discussion of the circumstances involving patient P.P.'s \vife
taking his medications but, instead, he again prescribed methadone and Xanax to
patient P.P.
(k) On or about March 12, 2012, a partially legible notation was made in
patient P.P.'s progress notes that indicated he had reported losing his methadone
medication to PA B.E. PA B.E. made a partially legible notation under plan that
indicated patient P P was "admonished not to lose his mecls." Notwithstanding
clear indicat:ons of possible diversion and/or abuse, includbg patient P.P.'s
negative urine drug screen for cor.trolled subs:an.:;es, alleged loss of his methadone
and report that his wife previo'Jsly had taken his medications away from him, PA
B.E. re-filled preo,.::riptions fo~ Oxycodone, Xanax and methadone for patient P.P.
(l) Respondent cummitted gross negligence, as the supervising physician,
by failing to properly supervise PA B.E.'s care and treatment of patient P.P.,
which inch:ded, bm was not limited to, tr.e follov.ing: - -
(1) PA BE. failed to con~ply with FCCF's Protocols;
(2) PA B. E. failed to document a diagnosis or treatment plan for anxiety
prior to prescribing Xanax to patient P.P.;
( 'l' ·') PA B.E. failed to adequately document or establish a treatn;ent plan,
with stated objectives for converting pat:ent P.P. from opioids to methadone;
(4) PA B.E. failed to obtain the proper licensing for methadone
n:aintenance therapy;
(5) PA B.E. failed to obtain a comprehensive social history and/or a
complete substance abuse history for patient P.P.;
1:----···--------26
Accusdion Case :\o. 09-2012-223599 \l
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(6) PA B.E. failed to fol!o\v up on the "negative" urine drug screen with
patient P.P.;
{7) PA B.E. fa:led :o follow t:p on the issue ofpatier.t P.P.'s wife taking his
medications away from him; and
(8) Responder:t failed to adequately and appropriately supervise PA B.E.'s
practice of medicine with p.:,tient P.P.
Patient L.A.
(m) PA B.E. treated patient LA. for knee pain. PA B.E. saw patient L.A. at
FCCF apprcxir:;ately thirteen ( 13) times between on or about July 15, 2011, and
0:1 or about February 5, 2013. Although PA B.E.'s first documented visit with
pa:ient L.A. occurred on or a':Jout J:.:ly 15, 2011, the Ct;RES reports in his medical
records indicated that PA B.E. had already written three (3) prescriptions for
controlled subs:anccs to patient L.A. in o~ around May 2011, and June 2011.
(n) On or about July 15, 2011, PA B.E. documented that patient L.A. had
been on pair. n:anagement medication for five (5) years. Some of the examination
nota:ions are ::legible. PA B.E. did not document patient L.A.'s social history,
past medical history and!or review of systems. In addition, PA D.E. did not
document a mental status exam and/or psychiatric history for patient L.A.
(o) Oa or abot:t September 15,2012, a prog;-ess note for patient L.A.
contained no reccrdcd history, examination or vital signs; however, it included t\vo
(2) part: ally lcg;ble notations inJ:cating, "Pt has police report :neds stolen in jail"
and "lnc:dcnt rcport!pol!cc n;port f!kd." The only documentation lll patient L.A.'s
medical records of this al;eged police report is a business card from the City of
Rivc:-side Police Records D:vision, d3.ted September 4, 2012, containing the name
of a reco~.is specialist and a file number. A handwritten note from patient L.A. on
FCCF !ettc~head, dated September 4, 2012, alsCJ indicated that he had been
admined to c. mental health facility 1m August 15, 201:2, and that when he was
discharged six (6) days later, he was missing an unspecified number ofNorco
27
Ac::usation Case 1\o. 09-2012-223599
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tablets from his bottle. There is a handwritten and unsigned notation on a ClJRES
report in medical records for patient L.A., dated Augus: 23, 2012, which stated
"No more :Norcos, wing (sic) down, 170 WV." And again, on or about February 5,
2013, there is an additional notation in a progress note indicating that patient L.A.
repor:ed "a doctor at the hospital soled (sic) his meds or some of them on several
visits," and that police reports had been filed. There arc no police reports found in
patier.t L.A.'s medical records in connection with this o~ any other alleged
incident.
(p) Despite a pattern of reporting "stolen" medications on the part of patient
LA, PA B.E. again prescribed Norco and Xanax to patient L.A. following the
February 5, 2013, clini::al visit. Significantly, between on or about July 15, 2011,
and o:t or about February 5, 2013, over the course of thirteen (13) patient visits,
there are five (5) notations either in patient L.A.'s clinic no:es or on billing slips
indicating a plar., "next time," f0r a urine drug screen. There is no record of a
urine drug screen ever being performed for patient L.A.
(q) Respondent committed gross negligence, as the supervising physician,
by failing :o properly supervise PA B.E.'s care and treatment of patient L.A.,
which ir:cludcd, but was r.ot limited to, the following:
( 1' j j PA B.E. failed to comply with FCCF's Protocols;
(2) PA B.E. failed to seek appropriate consultation and/or referral for
complex pain problems ir. light of aberrant drug seeking behavior on the part of
patient L.A.;
("' )j P r\ B.E. failed to seek appropriate consultation and lor referral for
substance abuse issues in light of aberrant drug seeking behavior on the part of
patient L.A.;
(4) PA B.E. failed to diagnose, do::t:ment, evaluate and manage treatment
plan for anxiety prior to prescribing Xanax to patient L.A.;
(5) PA B.E. failed to obtain test results for any of the five (5) urine drug
28 I' !!--·······-· Accusation Case >:c. 09-20!2-223599!
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screens; and
(6) Respondent failed to adequately and app~opriately supervise PA B.E.'s
practice of medicine with patient L.A .
Patient W.J.
(r) PA B.E. treated patient \\'.J. for foot pain. PA B.E. saw patient W.J. at
FCCF approximately fifteen (15) times bet\veen on or about July 16, 2011, and on
or a':Jout November 29,2012.
(s) On or about July 16,2011, at the initial visit, PA B.E. documented that
patient W.J. had diabetes and was tak:ng insulin. The assessment/diagnosis
section in the progress note listed diabe:ic neuropathy, skin structure disease,
social anxiety disorder, and panic attacks. However, PA B.E. did not document
any information regarding patient W.J.'s social history, review of systems,
psychiatric f:istory, and/or mental status exam.
(t) On or about August 7, 2011, a progress note indicated that patient
\V.J.'s chief compl:.:int was pain management of his legs. The examination section
was mostly illegible. The medications section included "Xanax" and "~orco," but
it d:d r.ot indicate dosages or amounts for these controlled substances. The
assessment s;::ction indicated "severe diabetic neuropathy'' and "anxiety." The
treatment/plan section indicated "urine drug [illegible word] next visit."
(u) On or about February 14,:2012, a progress note indicated that patient
\VI's medications had been coniiscared by the police. The progress note also
included the handwritten notation ''!\o Retills," which was circled and next to the
exa:nina:ion note~ section" A handwritten note signed by patient W.J., dated
February 14,2012, and p~cparcd on FCCF letterhead, indicated that he was
arrested by "Aladdin Bai! Company'' on or abom January 24, 2012, a:1d "the
boun:y men tooK my medicotion: Norco, Xanax, Soma [illegible]." Patient W.J.'s
letter requested a refill prescription. PA B.E. received a refill authorization request
for :t\orco faxed from Targe: phurmacy, dated Feb~uary 22,2012, on which PA
29 Accusatior. Case l"o. 09-2012-223599
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B. E. signed and authorized a quam:ty of one hundred eighty (180) Norco, and also
made a handv-nitten notation indicating patient W.J. \Vas given the additional
prescription "becat:se he lost partial meds."
(v) A CL'RES, report included in patient W.J.'s chart, was run on or about
Fcb~uary 14, 2012, which showed that, on or about January 31, 2012, patient \V.J.
filled a prescription for ::--lorco (:80 quantity) and Xanax (70 quantity), which was
seven (7) days after the al!egec confiscation of his medication on January 24,
2012.
(w) On or about March 6, 20 !2, a progress note indicated that patient W.J. 's
medications \Vere again taken away fror:1 him and that the "police dept. verified
that they took his mcds."' 1 A partially typed and partially handwritten note signed
by pa:ien: W.J., dated March 6, 2012, alleged that a police officer arrested him on
i'v'larch 1, 2012, and then confiscated his prescription medications, inducting,
Norco, Soma, and Xanax. The letter fails to explain the circumstances under
which patient \V.J. was arrested. Patient \V.J. 's letter requested a refill
prescription. A CURES report, included in patient W.J.'s chart, was run on or
about March 6, 2012, which shov-.ed that, on or about February 14,2012, patient
W.J. tilled a prescription for ?\orco (180 quantity) and Xanax (60 quantity), and on
or about February 23, 2012, he obtained an additional refill for Norco (180
quantity).
(x) On or about AprillO, 2012, at patient \V.J.'s nex~ vis:t, underthe
treatment/plan sectiot: is a handwritten notation indicatbg "Pt says that he did not
get the 180 tabs on 3-13-12." An additional handwritten nctation indicated "Pt
[down arrow} meds ASAP." A CURES report, included in patient W.J.'s chart,
\Vas run on o: about April10, 2012, which showed that, on or about March 7,
:: lj !, ---~-~ -U-nd_e_r_t_h_e_e-xa_n_l_in-ation notes section, a handwritten notation indicated "patient says
27 11 that the poli.:e is (sic) after him and they have arrested him 2 times for nothing."
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Acccsa:io~. Case No. 09-20!2-2235991
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2.012, W.J. refilled his Norco prescriptions (180 quantity); and again, on or about
March 12, 2012, he re:illed his 1\orco prescriptions (180 quantity). Also reflected
in tl:e CURES report were patient WJ.'s previously noted refills for Norco on or
about January 31, 2012; February 14, 2012; and February 23, 2012. All of these
refills were written by PA B.E.
(y) Between on or abo'Jt January l, 2012, and on or about April 10, 2012,
the CURES data revealed one thousac'ld eighty (1,080) tablets of Norco were filled
under pres;;ri;:ticn for p?.tiect \V .J ., and all had been written by PA B.E. 12
(z) Nowhere in patient W.J.'s medical records and/or progress notes did PA
B.E. ever docun:em any discussion or indicate a treatment plan for decreasing
patient W.J.'s use ofopio:ds or benzodiazepines; apparent issues with medication
compliance and ;cyucsts fc:r ref:!l under suspicious circumstances; and/or potential
concerns over substance abuse. 1n addition, patient W.J.'s nedical records do not
include any police repcrts that wou:d s'.lbstantiate some or all of his claims with
regards to separate i:~cidents invo:ving co:-~fiscaticn of his medications oy police.
F:nally, at no time during PA B.E.'s care and treatment of patient W.J. was a urine
drug screen ever perfom:ed.
(aa) Respondent commi:tcd gwss negligence, as the supcrvising physician,
by failing to properly s;,.~pervise PA B.E.'s care and treatment of patient \V.J.,
which included, b:.:t was r:.ot limited to, the following:
(1) PA B.E. failed to comply wi:h FCCF's Protocols;
(2) PA B. E. f1.1iled to diagnose, document, evaluate :md manage treatment
pl::l.n for anxiety prior to prescribing Xanux to patient W.J.;
PA BE. fa:JeJ to develop a clear plan to manage misuse of the
prescribed o;1ioids by, and then cont~nued to prescribe cc:ltrolled substances :o,
patient \\' .J. w:ll1n:t a dOC'Jtnented plan or rationale;
i: -·1,: :
2 A: this rate, p1tient W .J. would have been averaging approximately eleven ( ll) tablets of~orco t::vcry day.
1. I
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Accu>at:on Case No, 09-201::!-223599\
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(4) PA B.E. failed to assess and document patient W.J.'s ?rogress and/or
lack of progress with opioid therapy, any adverse effects of opioid therapy, and/or
any positive responses to opioid therapy;
(5) PA B.E. failed to stop prescribing controlled substances and refer
patient W.J. to a substance abuse program, in ligh: of the contradictions between
his self-reporting, lack of dOC<lmentation, and CURES data; and
(6) Respondent failed to adequately and appropriately supervise PA B.E. 's
practice of medicine \Viti: patient \\'.J.
Patient K.l\'1.
(bb) PA B.E. treated patient K.M. for jaw pain. PA B.E. saw patient K.M. at
FCCF approximately eigl:teen (18) times bet\\een on or about July 16, 2011, and
on or about December 14, 2012. On or about July 16,2011, at patient K.M.'s
initial visit, she reported constant severe pain to PA B.E. and rated her pain "ten"
( 1 0) on a scale of one to ten ( 1 to 1 0). Patient K.M. reported that she had a history
of pain managemer.t for !-ler jaw and PA B.E. noted in the progress note that "it
took her 4 years to get rid of pain." PA B.E. also documented in the progress note
that patier.t K.:-.1. had a mor?hmc pump and that she was seeing Dr. I for
mar.agemcnt of the morphine pump. Hovvever, PA B.E. did not document any
discussion wi:h patient KS1. as to whether the morphine pump was for her
ongoing therapy, what the current dose was, or whether she had received any
recent refills. PA B.E. also did not document any discussion about any prior oral
opioid prescribing, or whether Dr. I was aware that she was being prescribed oral
opioids in addition to the mor;>hine pump. In fact, PA B. E. never once during the
entire period of his care and treatment of patient K.M. document a re.port or
correspondence from, cr any conversation with Dr. I, regarding his treatment of
patient K.\1. via :he morphir.e pump. 13
13 A CURES report confirmed the dispensing of morphine powder, 500 mg, by Dr. I on or about Jm:e 9, 2011.
32 .:..:::c<.:sat:on C:.s~ No. 09-2012-223599\
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(c;::) On the initial intake visit, on or ab~ut July !6, 2011, PA B.E. did not
document any discussion about the descrip:ion of the pain quality, onset of pain,
duration of prior therapies, past medical history, social history, psychiatric history,
or review of systems. PA B.E. documented in the pain diagram bilateral facial
pain only. PA B.E.'s physical exam of patient K.~1. was devoid of any head
and/or facial examinatio;:, with the exception ofPup!ls Equal, Round, Reactive to
Light and Accommodation {PERRLA), which indicated that only a cursory eye
exam was performed. P A B .E. did not conduct and/or document a mental status
examination ofpztient K.M. The progress note contained a diagnosis of
fibromyz!gia, but the:e was no documented examination of the musculoskeletal
syste:n. The treatmen:/plan section indicated "urine drug screen" and,
prescrip:ions for methadone, Norco and Xanax were issued.
(dd) On or abo:..:t Augus: 12, 2011, a progress note again noted that patient
K.!v1. was t:sing a morph:ne pump and that she had seer. several pain management
providers. P:\ B.E. did not do;;· . .nnent any discussion on whether the pump was
fun;.:tional and delivering morphine to patient K.rv1. Under the treatment/plan
se;,:tion, it ir;dicatcd, "needs drug screen NV."
(cc) On or about August !9, 20 ll, patient K.i\:1. reported that her car had
been towed \vhich resulted :n the confiscation of her medication. The progress
note contained a notation that patient K.!vf. had eighteen (18) surgeries to her face
ar:d that s~e had a morphine pump for eleven (ll) years. T:.e progress note also
contained a nctztion for the prescription of Norco and Xanax, but no indication of
tl:c m:mbcr of tablets. A et . ..rRES report showed that patient K.!Vl. subsequently
ti !led her prescription fo: the Norco (180 quantity), X an ax (90 quantity) and
Valium (90 quantity). Under the treatmentlplar; section, the only notm:ion is "HTN
therapy."
(ff) On or about Septer:-~bcr 14, 20 ll, a progress r.ote included;: handwritten
rwtation indicating that pn.ticn: K.M. told P:\ B.E. that !1er ''daughter got put in
------------------Ac;;uwion Case Ko. 09-20l2·223599i
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prison for stealing her meds,'' Under the treatment/plan section, the only notation
is "HTN therapy." A billing slip for this visit indicated "Cri:1e next time." A
CURES report s!lowcd that patient K.tvL subsequently filled her prescription from
PA B.E. for t'orco (180 quantity), methadone (300 quantity) and Valium (90
quantity).
(gg) On or about October 7, 20 ll, a progress note included a handwritten
notatio:1 indicating "Pt is very depressed. She is out of her morphine pump and
Dr. [I] didn't rdill it." PA B.E. made no notation under the treatment/plan section.
There was no follow up comment on the urine drug screen that had been planned
from the prior visit.
(bh) A CURES repott in patient K.:Vt 's medicai records indicated that
morphine powder had been prescribed by Dr. I and was dispensed on or about
October 7, 2011. A Cl:RES report showed that patient K.M. subsequently filled
her prescriptio:1 from PA B.E. for ~orco ( 180 quantity), methadone (300 quantity)
and Valium (90 quantity).
(ii) On or about October 22, 2011, a progress note that vvas mostly illegible,
included a notation regarding the morphine pump that was also illegible. Under
the treatmentlp!an section, a handwritten notation indicated only "urine drug
screen next visit." However, PA B.E. did not documer.t any plan for treatment. A
CURES report showed that patient K.:\1. subsequently filled a prescription from
PA B. E. for xor.:o (180 quantity), methadone (300 quantity) and Valium (90
quantity).
(jj) On or about :\ovembcr 25, 2011, a progress note included a handwritten
notation indicated "Pt bas been on these meds for too long." However, PA B.E.'s
notation did no: specify which medicat:ons. PA B.E. added another notation
indicating "Pt says 'I can't lower any meds now please:'" Under the
trcatn:ent.iplan sectio:1, a hand\vritten notation indicated "pt has seen hundreds of
doctors for pain management." However, again, PA B.E. did not document any
34
plan for treatment. A CURES report showed that patient K.M. subsequently filled
') '- her prescription f:-om PA B.E. on or about ~ovember 29, 2011, for Norco (! 80
3 q':antity), me:hadone {300 quantity), and Valium (90 quantity).
4 I I
(kk) A urine drug screer. dated on or about !'\overnber 25, 2011, indicated
5 II that patient K~1.'s urine had tested "negative" for all prescribed drugs.
6 :l li
(I!) Or. or about Jar.ua~y 27, 2012, a progress note documented patient
7
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K.!\1. 's chief complaint was "T~'1J." However, the progress note did not document
a face and head examination. The other examination notations were mostly
9 illegible. The notations for assessment we:e illegible, and there was no treatment
10 ' or plan do~umented in the progress note for this visit.
11 :I ( m m) Oo or a Oout March I 0, 2 012, a progress note again documented patient
12 II K.?vL's chief complaint was "H.-D." Again, PA B.E.'s examination notes are
13 I illegible. PA B.E.'s assessment ir.di~ated "1) severe TMJ; 2) Maxillary (illegible);
!4 1 3) morphine pump." However, PA B.E. did not docu::1ent a treatment plan in the
15 1'1. progress notes. A handwritter.. notation in the margin of the progress note for this
l6 \1
visit i:ldicated, "call in script for norco & valium." ,I
17 j, (nn) On or about iv1ay 16, 20 !2, a partially legible progress note documented I
II 18 ! patient K.\1.' s clinical visit. The handwritten notations under examination were
19 partially legible and, a mos:ly illegible notation regarding history indicated
20 11
something about ''Vali~Hn." :\o treatment plan was documented for this visit.
;; l II (oo) ln or a:-ound June 2012, patient K.M. drafted two (2) separate letters and
1,1 .22 suo;nitted them to 6e FCCF clink o:. FCCF letterhead, \vhich described two (2)
23 separate incidents of how she recently lost her medication, including a theft of her
2 .. '"t il medication from her car trunk and losing her medications in the toilet at 'I
25 :j 26 it
Wa\greens. There is an undated FCCF cli:1ic note indicating "Pt 5 days early" and
·'poiice report reviewed." l'o additional comment or notation was included in the
27 ll clin:c note. :\CURES report in patient K.~1. 's chart showed that on or about May
2811
2;, 2012, s:1e filled her prescriptior. for 1\orco ( 126 quantity), Xanax (60 quantity),
11-·--·- 35
r\c~:.:satio:1 Case No. 09-20!2-223599l
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and methado;-te (300 quantity); and again, on or about June 13, 2012, she filled her
prescription for methadone (300 quantity), Xanax (60 quantity), and Norco (165
quantity).
(pp) On or about July 11, 2012, a progress note again documented patient
K.M.'s chief complaint was "TMJ." Again, PA B. E. did not document a
description of pain location and/or patient K.M.'s response to therapy. The
examination notations are illegible. PA B.E.'s assessment only indicated "1)
severe TMJ; 2) Anxiety 3) fibromyalgia." Under the trcatment!pla:1 section, it
only indicated, "Pt has too much pain." A handwritte:1 notation in the margin of
the progress note for this visit indicated, "~o refilis." A CURES report in.?atient
K.M.'s chart sho\ved that on or about July 11, 2012, she Hlled her prescription
from PA B. E. for Norco (165 quantity), Xana.x (60 quantity), and rnethadone {300
quantity). On or about July \3,2012, a prescription refill request was faxed by
\Vaigreen's for diazepam to FCCF. A handwritten notation made by PA B. E. in
patient K.M. 's medical records denied the refill, with the notation "1\o valium pt is
on high quantity ofXanax. too dangerous."
(qq) On or about August 3, 2012, a progress note documented patient K.M.'s
chief complaint was "T~1J." PA I3.E.'s assessment indicated "l) severe TMJ; 2)
Anxiety.'' The exa:nir.ation notes documented that "every bite of food she takes is
very severely pain:Ul." A handwritten notation further indicated that "Pt wam to
go up on meds. Pt info:-rned no." Under the treatment/plan section for this visit,
PA B.E. only documented "pt informed we will not go up on anything." The bill
for this visit indicated "D/S next visit!"
(rr) On or about September 7, 2012, patient K.M. was seen by another
physician assistant at FCCF. The docun:ented information in the progress note
was essentially the sa:ne as the information previously documented by PA B.E. for
patie:1t K . .\1.'s prior visits to FCCF.
36
Ac;;•,:s2-tion Ca~e No. 09-2012-2235991
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(ss) On or about October 9, 2012, a clinic note containing a "Medical
Assistant Intake" section was completed by ''y[A [Yt]." This same clinic note
included a printed notation entitled "Report Created With Dragon yfcdical Voice
System," but there was no dictated no:e a~ached to the note and it is not signed by
a physician or physician assistant. Howeve:, a bill for the visit was paid by patient
K.\t on that sa:ne date. A urine d:ug screen for patient K.M., dated on or about
October 9, 201:?, indicated her urine tested positive tor methamphetamine, and
negative for opioit.ls a:-~d benzcciazepines.
(u) On or ahout October 1 5, 2012, patient K.YL was seen by another
physician assistant at FCCF. The documented information in the progress note
was essentially the same as the infor:nation previously documented by PA B.E. for
patient K.~1. 's pr!o: visits to FCCF. The treatment'pian section indicated "P1'N
denies me!h use. states h::s HTN meth use would kill me. Explained that she
would have to be (illegi:,te] on r.ext visit." An undated and mostly blank progress
note, w:thout a patient na:r.e or v:ral s:gns, indicated that patient K.M. •vas "Not
seen" and under the trea:::;ent plan section, "see discharge letter." An unsigned
discharge letter dated on or about December 14, 2012, was addressed to patient
K.tvL anJ ind!ca~ed that she was heir.g discharged f:-om FCCF for receiving
medications from more than one (l) provider.
(uu) Respondent comrr:itted g:oss negligence, as the supervis:ng physician,
by failing to properly supenise PA B.E.'s care and treatment vf patie:lt K.!v1.,
which included, bt:t was not limited to, the following:
(l) PA B.E. failed to comply with FCCF's Protocols;
(2) PA B.E. ±:1iled to doc:.Hnent a comprehensive history and examination
~:ior to initiatit:g and lor continuing high dose chronic opioid therapy for patient
K.ivl.;
(3) PA D.E. failed to document any contact and/or consult with the provider
of patient K . .\ 1. 's intrathecal thc:·apy, Dr. I, rcgard!ng her care and treatment, and
I ---------- ... - ---------------n.-'-cc-u-sa-ti~nCase>lo.09·20:2·2235991
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:he potential risks of concurrent use of O?ioids for long-term chronic pain
management;
( 4) PA B.E. failed to adequately document treatment plans with stated
objectives for patient K.M.'s cl'.ronic pain management over eighteen (18) visits;
(5) PA B.E. failed to document any assessment of progress, responses
and/or adverse effects of patient K.M.'s long-term opioid therapy for chronic pain
management;
(6) PA B.E. failed to adequately document or follow-up and/or monitor
patient K.I\1.'s multi?le lost prescriptions, and a urine drug screen that tested
negative for the controlled substances prescribed to patient K.M.;
(7) PA B.E. failed to address with patient K.M. the fact that her :.vo (2)
urine drug screens testec negative for her prescribed medications;
(8) PA B.E. failed to make appropriate referral for patient K.M. for
substance abuse evaluation in light of evidence of possible diversion and possible
substance abuse;
(9) PA B.E. failed to diagnose, document, evaluate and manage treatment
pian for anxiety prior to prescribing Xanax to patient K.l\1.; and
(10) Respondent failed to adequately and appropriately supervise PA B.E.'s
practice of medicine w!th patie:1t K.M.
Patient A.\V.
(vv) PA B.E. treated patient A.W. for low back pain a:1d knee pain. PA A.E.
saw patient A\\.'. at FCCF approximately five (5) times between on or about
November 14,2011, anJ on or about August 17,2012. During the course nf
treatme:lt, PA B.E. prescribed ;.,"orco and Xanax to patient A. W. Patient A. W. told
PA B.E. that she had taken Vicodin: 4 for pain in the past, but it was not effective
26 11 ---.. -4 -\--'-ic_o_d-in-is_a_b_r_a_n_d name for acetaminophen ar:d hydrocodone bitartrate, a Schedule III
2_1
, controlled substance pursuant tc Health and Safety Code section ll 056, subdivision (e), and a I dangerous drug pursuant to Business ar.d Professions Code sectior. 4022. Vicodin is an opioid ,I pain medication that is used to relieve moderate to severe pain.
28 li
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in relieving her pai:L
(\vw) On or about December 13, 2011, a lumbar x-ray of patient A.W. was
ordered, but there is no record that this examination ever occurred. A urine drug
screen documented from patient A.W.'s initial v!sit on or about November 14,
20 ll, indicated •·negative" results for opioids. A urine drug screen documented
from patient A.W. 's last visit on or about Au gus: ! 7, 2012, indicared "negative"
results for opioics, but tested ''positive" for "THC."' 5 PA B.E.'s har.dwritten
clinic r.o:es for patient A.W. are mostly iliegibl::.
(xx) Respondent comni:red gross negligez:ce, as the supervising physician,
by fai!ing to properly supervise PA B.E.'s care ar.d treatmer.t of patient A.W.,
\Vhich included, but was not limited to, the following:
( 1) PA B.E. failed to cotn)11y w:rh FCCF's Protocols;
(2) PA B.E. failed to document a comprehensive history and examination
prior to initiating a;,dior continuir.g high dose chronic opioid therapy fo~ patient
A.W.;
(3) PA B.E. failed to adequa:ely document treatment plans with stated
objectives for patient A.\\'.' s c:-tronic pain management OYer t!Ye (5) visits;
(4) PA B.E. failed to docur:1ent any assessme:1t of progress, responses ·
and/or adverse effects of patient A.\\' .'s long-term opioid therapy for chronic pain
manage:nent;
(5) PA B.E. failed to adeqcately evaluate and manage patient A.W.'s back
pain;
(ti) PA B.E. fai!ed to adequatciy document or follow-up and/or monitor
patient A.\V.'s :m.:!t:ple lost prescriptions, and a urine drug screen that tested
'5 THC, or Tetrahydrocannabino;, commonly known as marijuana, is a Schedule I
control:ed substar;ce i)Ursuant to Hea:th and Safety Code section 11054, subdivision (d). Significantly, Patient A.\\'. did not have a medical :narijuana card that permitted her to usc marijua:12. based on a ~ecom:nendati0n made by a licensed medical doctor for a diagnosed physical condi:ion.
39 I Accusat:or. Case ~o. 09-20i 2-2235991
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negative for :he controlled substances prescribed to patient A.W.;
{7) PA B.E. failed to address vvith patient A.W. the fact that her two (2)
urine drug screens tested negative for her prescribed medications;
(8) PA B.E. failed to make appropr:ate referral for patient A.W. for
substance abuse evaluation in light of evidence of possible diversion and possible
substance abuse; ar.d
(9) Respondent failed to adequately and appropriately supervise PA B.E.'s
8 practice of medicine with patient A.\V.
9 Patient E.R.
10 (yy) PA B.E. treated patient E.R. for bruised ribs. PA B.E. saw patient E.R.
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at FCCF approximately seven (7) times between on o: about August 5, 2011, and
on or about August 20,2012. Although PA B.E.'s first documented visit with
patient E.R. occurred on or about August 5, 2011, the CURES reports indicated
that PA f3.E. had been prescribing controlied substances to patient E.R. since in or
around August, 20 l 0. :e However, there is no mention in the clinic notes from the
first documented visit on or about August 5, 2011, of any prior prescribing by PA
B.E. During patient E.R.'s first documented visit on or about August 5, 2011, PA
B.E. recorded a ctlrsory pain history, but did not document any pas~ medical
history, review of systems, psychiatric history, or social history. PA B.E. did not
document a menta! status exam or history for patient E.R. that would account for a
prescrip:ion of a Xanax for treatment of anxiety. PA B.E. did order x-rays of
patient E.R. 's ribs; l:owever, there is no record that this examination ever occurred.
(zz) 1\ urine drug screen documented from patient E.R. 's visit on or about
August 20, 2012, indicated "negative" test results for opioids and benzodiazepines,
but tested "positive" for "THC." ?\otwithstand:ng the urir.e drug screen's negative
test results for opiates and benzodiazepines, PA B.E. again issued patier.t E.R.
2/ II~. ----------16 On or about August 6, 2010, patient E.R. filled a p:escription issued by PA B.E. for
28 \. hyd:-ocodone and alprazolam.
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Acca>atior. Case No. 09-2012·2235991
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prescriptions for hydrocodone and alprazo!am.
(aaa) A printed CURES report for patient E.R., dated on or about October 30,
2012, contained a handwritten notation regarding opioid prescriptions issued by a
provider o;her than PA B.E., indica:ing, "Discharged from clinic. Pt was warned
about this! Stick with Dr. [Y~.·· PA B.E. did not document in a clinic r.ote or
elsewhere in patient E.R.'s medical records any furthe:- explanation as to why a
CURES rej)or: was obtained.
(bbb) Responden: c0mmitted gross negligence, as the supervising physician,
by failing to properly supervise PA B.E.'s care and treatment of patient E.R.,
which included, but was not limi:ed to, the following:
(I) PA B.E. failed to comply wi:h FCCF's Protocols;
(2) PA B.E. failed to diagnose, document, evaluate and manage treatment
plan for anxiety prior to prescribing Xanax to patient E.R.;
PA B.E. failed to dccu:nent a :or.1prehensive history and examination
prior to initiating and:or continuing high dose chronic opioid therapy for patient
E.R.;
( 4) PA B.E. failed to adcql:ately docuMent treatment plans \Vith stated
objectives for pat:ent E.R.'s chronic pain management over seven (7) visits;
(5) PA B.E. failed to document any assessment of progress, responses
and!or adverse effects of p::iticnt E.R.' s !ong-tcr:n opioid therapy for chronic pain
Management; and
Respc,nd<>~:t failed :e~ adequately and appropriately supervise PA B.E. 's
practict:: ofn:edicinc with patient E.R.
Patient T.T.
(ccc) On or ab01.:t December 7, 2012, Investigator L\-1., an investigator for
the Medica! Board of California, posing as patient T.T., conducted an undercover
visit a~ FCCF. Patien T.T. was seen for one (l) visit and initially met with
FCCF's weight-loss coordinator to discuss the different weight-loss options
Jj
Ac.:csa:ion Case No. 09-2012·2235991
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offered at FCCF. PA B.E. then met with patient T.T. and further discussed with
her the different weight-less opticms offered at FCCF. PA B. E. briefly discussed
diet and the importar.ce of exercise \vith patient T.T. PA B.E. then prescribed
phentermine· 7 to be taken weekly by patient T.T. Signiticantly, PA B.E. never
asked patient T.T. about her medica! history including, among other things, what,
if any, medications she was currently taking; whether she smcked cigarettes or
drank alcohol; whether she had any past or present addiction problems; whether
she had any past or present mental health issues; or w·hether she had any past
attempts with weight loss throug~ use of c.ontrolled substances.
(ddd) On or about !vlarch 27, 2013, Investigator T.M. went to FCCF on an
unannounced visit and obtained copies of her medical records from PA B.E. A
review of the me,dical records she obtained that day revealed that respondent's
signature cid not appear an)'\Vhere on the chart notes from her office visit at FCCF.
(eee) On or about April 9, 2013, a Medical Board investigator mailed a
request to FCCF for a certified copy of patient T.T. 's records, after which FCCF
complied. Curiously, on the certified copies turned over by FCCF, respondent's
signatL:rc now appeared on pat:ent T.T.'s chart note with the date "12/10/12" next
to his signature. Acco~ding to this later produced chart note, rcspvndent allegedly
reviewed anc counter-signed it three (3) days after patient ·r.T.'s office visit at
FCCF.
(fff) Respondent comm:tted gross negligence, as the supervising physician, !I 21 \I
22\i 17 Phcnterminc is a Schedule IV controlled substance pursuant tu Health and Safety Code
23 \1 section 11057, subdivision(!), and a dangerct:s drug pursuant to Business and Professions Code
24
1
.
1
! ~~~~~~~~;~· o~ ~~;g~1~~1~;~~e~it~·.al)~~~~~~~~i~lfsr~s:;~;;~~~1td~f~:t~~i~~~i~~ ~~~ecn~~ f~~;!~sc blood pressure and pulse of patients. Therefore, caution is to be exercised in prescribing
2S phentermine for patients with even mild hypertension and, dosage should be individualized to 1
1
1 obtain an adequate response with the lowest effective dose. Lastly, phentcrmine is related 26 I chemicalty and phar:nacologi::ally to amphetamines, a drug of extensive abuse; therefore, the ~~ · possibility of abt:se should be mor.itored when phentcnni!'lc is prescribed as part of a weight '-' I! reduction program.
2s\/ II \'--------··--·-- 42
Acc.·-saticn Case l'\o. 09·2012-223599 i
by fail:ng to properly supervise PA B.E.'s care and treatment of patient T.T., ·[
2 which included, but was not limited to, the following:
3
II 4
II 5 II 6 II
li ...,
I '!
(1) PA B.E. failed to comply with FCCF's Prot0cols;
(2) PA B.E. failed to perform a:1d docu:nent an adequate history prior to
prescribing Phe:1termine, a controiled substance;
(3) PA B.E. perforn:ed no pJ-:ysical examination of patient T.T. other than
recording her blood pressure and weight;
8 ,,
il 9 !\
!I 10 II
(4) PA B.E. fai!ed to discuss the major potential risks of using a controlled
SL:bs:ance for we:ght loss treatmen:;
(5) PA B.E. failed to get approva: from a supervising physician before
11 II prescribing a controlled substance for weight loss treatment, and
12 II 13 IJ
14 l1 q
1<1\ I· ·- " !,
(6) Respondent falsified patient T.T.'s medical record when he signed and
back-dated her cha:-: note, i:1dicating that it had been reviewed by him on or about
"12/10/12.''
SECOND CAUSE FOR DISCIPLII'\E
16 ll 17
\; r p
(Repeated Negligent Acts)
33. Rt:spondent is subject to disciplinary action under sections 2227 and 2234, as defined
18 j\ by sectior.s subdi\ision (c), 3501,3502 and 3502.1, orthe Code, and California Code of
19 ~~ Regulations, Title ; 6, sections 13 99.540, I 399.541 aod 13 99.54 5, b that he committed repeated
20 ~~ negligent acts, a~ th~ SU?ervising physic;or., by failing to p~oped) supervis~ PA B.E. in his care
21 t: and treatment of pallents P.H., P.P., L.:\. \\ J, K.M., A. \V ., E.R., and T.1., as more particularly
22 alleged hereinafter:
23 J; 3.;. From on or a:.;out July l·~. 2Q ll, th:ough in or around F ebru:1ry, 2013, respondent I[
24 ji performed his du:ies under the Ddegation, :Vledica! Director Agreement and Protocols including,
25 jl having re\'ie'Ned and sig:1ec off on nearly every medical record and/or chart note for care and
:1 26 11 treatr:1ent prC>vided by PA B.E. to the following patients: p
27 i! Patient P.H.
(a) Paragraphs 27 through 3:, a:1d 32, subdivisions (a) through (d), above,
,I t 43 !! ___ _
Accusati:>n Case ~o. 09-2012-223599 l
i 2 ,. 3
I 4
5 l! 6 II 7 II 8
II 9
I 10 I
; 1 l 12 I
jJ
13 i
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I: 16 II 17 II
ll 18 ,I
19 I' ·I 20 \I
21 i'
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are hereby incorporated by reference and realleged as if fully set forth herein.
(b) Responder.! committed repeated negligent acts, as the supervising
physician, by failing to properly supervise PA B.E.'s care and treatment of patient
P.H., which included, bur was r.ot limited to, the following:
(1) PA B.E. failed to adequately document his assessment of patient P.H. 's
progress and/or whether any adverse effects to treatment had occurred;
(2) PA B.E. failed to adequately document a complete history andicr
examination rela:ed to patient P.H.'s pain complaint at the initiation of opioid
therapy;
(3) PA B.E. failed to adequately document a complete history and/or
examination related to patient P.H. 's rcpor:ed history of anxiety; and
( 4) PA B.E. failed to maintain legible medical records.
Patient P.P.
(c) Paragraphs 27 through 31, and 32, subdivisions (e) through (l), above,
are hereby incorporated by reference and realleged as if fully set forth herein.
(d) Respondent committed repeated negtigent acts, as the supervising
physician, by failing to proper:y supervise PA B.E.'s care and treatment of patient
P.P., which included, hut was not limited to, the following:
( 1) PA B.E. failed to adequately document patient P.P.' spain history;
(2) PA B.E. failed to adequately document a physical examination;
(3) PA B.E. failed to document any prior prescribing of controlled
substances to patient P.P. by PA B.E. for care and treatment that he had provided
prior to on or about July 20, 2011;
'4) \. ' PA B.E. failed to document any past medical history, review of systems,
or social history;
(5) PA B.E. failed to document a mental status examination and/or
psychiatric history that would account for a prescription for benzodiazepines;
(6) PA B.E. failed to documer:t the results from the second urine drug
IJ !:--~----~~-···
44 ,\.cc~,;sator. Case ~o. 09-2fll2-223 599j
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3
4
5
6
7
11 8
9 II
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screen; and
(7) PA D.E. tailed to maintain legible medica! records.
Patient L.A.
(c) Paragraphs 27 through 31, and 32, subdivisions (m) through (q), above,
are hereby incorporated by reference and realleged as if fully set forth herein.
(f) Responder.t committed repeated r.egligent acts, as the supervising
physician, by failing to properly supervise PA B.E.'s care and treatment of patient
L.A., which included, bet \Vas not limited to, the follov.·ing:
( 1) PA B.E. failed to document a complete his:ory and examination prior to
prescribing opioids to patient L.A. for treatment of chronic pain;
(2) PA B.E. failed to document a complete history and examination of
patient L.A. prior to prescrlbing bcnzodiazepines for treatment of anxiety;
(3) PA B.E. faikd to docum;;:nt any prior prescribing of controlled
substances to patient L.A. by respondent for care and treatment that he provided
prior to on or about Juiy !5, 20 ll;
( 4) PA B. E. failed to dccument patient L.A.'s responses to ongoing opioid
therapy for intractable pain;
(5) PA 13.£. faikd to adequately document any fo!low up with patient L.A.
regarding "stolen medications" and "police reports;" and
(6) PA B.E. failed to maintain !egib:e medical records.
Patient \V.J.
(g) Paragnqhs 2 7 throug!: 3;, and 32, S\.lbdivisions (r) through (aa), above,
an: hereby inccrporatcd by referer:ce and reaHeged J.S :f fu:Jy set forth herein.
(h) Respondent CO!nt:1ltted repeated negligent acts, as the supervising
physician, by failing to properly supervise PA B.E.'s care and treatmer.t of patient
\VJ., \\h:ch inc:uded, but was not limited to, the following:
(1) PA B.E. failed to doc~unent a ccmp!ete pain history, including,
conduct:ng a complete pair: examination ofthe pain:ul area of patient W.J.;
45
:\.ccus~tion Case l"o. 09·20 12-223599
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(2) PA B.E. failed to document patient W.J.'s social history and/or review
of systems;
(3) PA B. E. failed to document patient W.J. 's psychiatric history and/or
perform a me:1tal status examination prior to the prescribing of controlled
substances for pain and/or anxiety;
( 4) PA B.E. failed to adequately document a hist~ry and exam!nation of
patient W.J. prior to prescribing him controlled substances :"or the treatment of
pa!n and/or anxie:y; and
(5) PA B.E. failed to maintain legible medical records.
Patient K.M.
( '\ l; Paragraphs 27 through 31, and 32, subdivisions (bb) through (uu),
above, are he:cby incorporated by reference and realleged as if fully set forth
herein.
(j) Respondent committed repeated negligent acts, as the supervising
physician, by failing to properly supervise PA B.E.'s care and ;reatmem of patient
K.M., which included, but was not I:mited to, the following:
(l) PA B.E. failed to ped0rm and document a comprehensive history of
pain, social history, or review of systems;
(2) PA B.E. fai:ed to document whether patient K.\1. bad been previously
prescribed opioids andfor benzodiazepines prior to issuing a prescription for
controlled substances; and
(3) PA B.E. failed to maintain legible medical records.
Patient A.\V.
(k) Paragraphs 27 through 31, and 32, subdivisions (vv) through (xx),
above, are hereby incorporated by reference and realleged as if fully set forth
herein.
(l) Respondent committed repeated negligent acts, a::. the supervising
physiciar., by failing to properly supervise PA B.E. 's care and treatment of patient
46 t\~cusa::cr: Case Nc. 09·2-::l!L.-2235991
A.W., which included, but was not limited to, the following:
2 ( 1) PA B. E. failed to perform and document a comprehensive history of
3 pc.in, social history, or review of systems;
4 (2) PA B.E. failed to conduct a mental status examination and/or history
5 regarding the diagnosis of anxiety disorder;
6 (3) PA B.E. failed to document whether patient A. \V. had been previously
..., I prescribed opioids and/or benzodiazepines prior to issuing a prescription for
8 }' controlled substances; and
9 I~ 10
(4) PA B.E. fa1led to maintain legible medkal records.
Patient E.R.
ll I ·I (m) Paragraphs 27 !~rough 31, and 32, subdivisions (yy) through (bbb),
12 I' ! above, are hereby incorp0rated by reterence and rea! leged as if fully set ionh
13 II herein.
14 :I I!
(n) Rcsponden~ committed repeated negligent acts, as the scpervising
15 I ,, ;!
physician, by failing to properly supervise PA B.E.'s care and treatment of patient
16 II E.R., which included, out was not limited to, the following: il >!
17 II II
( l) PA B.E. failed to per:orm and document a comprehensive history of
18 lj
19 I! li
20 1: il I
21
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:\ 23
pain, social history, or review of systems;
(2) PA B.E. failed to conduct a mental status examination and/or history
regarding the diagnosis of anxiety disorder;
(3) PA B.E. failed to document whether patient E.R. had been previously
pre;;cribcd opioids antlior benzodiazcpines prior to iss~ting a prescription for
'
24 ll II
2.5 I' d
26 1\ ·'
(-i) PA B.E. failed to maintain legible medical records.
Patient T.T.
(o) Pa~ag:aphs 27 thrcugh 31, and 32, st:bdivisions (ccc) through (fft), jl
'li " i] '-• 'I
2S I'
above, are he reb) incorporated by reference and reallegcd as if fully set forth
herein.
II ll Acc•_:sa.tior. Case No. 09·2012·223599
211
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6
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10 l 11 ,,
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(p) Respondent com:nitted repeated negligent acts, as the st:pervising
physician, by failing to properly supervise PA B. E.'s care and treatment of patient
T.T., \vhich included, but was not limi:ed to, the following:
( 1) PA B.E. failed to maintain legible medical records.
THIRD CAUSE FOR DISCIPLINE
(Aiding and Abetting the 'Cnlicenscd Practice of Medicine)
35. Respondent is further subject to disciplinary action under sections 2227 and 2234, as
defined by sections 2052,2069,2264, 3501, 35,02 and 3502.1, ofthe Code, and California Code
of Regulations, Title 16, sections 1399.540, 1399.541 and 1399.545, in that he aided and abetted
the unlicensed practice of medicine, as more particularly alleged hereinafter:
36. Paragraphs 27 through 34, above, are hereby incorporated by reference and realleged
as if fully set forth herein.
37. On or abo:1t May 6, 2011, articles of incorporation were filed in the Office of the
Secretary of State of the S~ate of California, which incorporated the entity "First Choice Clinica '
Familia~, A Professional Corporation," and described the purpose ofFCCF as," ... to engage in
the Profession of Medicine and any other lawful activities (other than the banking or trust i
company business) not prohibited to a corporation engaging in such profession by applicable laws l I
and regulati,1ns."
19 38. Or• or abot:t lSovember 17, 2011, a statement of information was filed on
20 behalf of FCCF with t~e Office of the Secretary of State of the State of California, and it
21 II identified "(PA B.E.]" as the "ChiefExecutfve Officer," "Secretary" and ''Chief Financial
22 ~~~: Ojficer" of FCCF. (Emphasis added.) It was signed by P A B.E., under the title of
23 I "President" ofFCCF, on June 2, 2011. (Emphasis added.)
24 1! 39. On or abot:t August 30, 2012, a statement of information was filed on behalf
25 !1 ofFCCF with the Office of the Secretary of State of the State of California, and it
2611 I
i:-~dicated that there had been :10 change in any of the information contained in the last
27 i I
statement of inforrnation :iled with the California Secretary of State. PA B.E. completed
I I _______________________________________ !
Accusat:on Case No. 09·2012-2235991
28 j this form under ti1e title of"President" ofFCCF.
Ill. 48 !,---
40. In or aroimd the summer of20 i 1, a business license application was filed on
2 behalfofFCCF with the 3usiness License Division ofthe City ofCorona. The
31, applicatior. was completed and signed by PA B.E. under the title of"Owner" ofFCCF,
4 II and. wherein, he described FCCF's business activity as "Fami(v Medical Clinic."
5
11
(Emphasis added.) PA B.E. signed tje business license application on or about June 9,
6 , 201!. According to FCCF's bus!ness license tax account information with the City of
7 i\ Corona, FCCP's start date for '::lusiness was on or about June 30, 201 I.
si) 41. On or about October 18, 20 i 2, the Medical Board of California cont1rmed that
9 ~~ FCCF had not been issued a Ficti~:ous Name Permit. In fac,t, no fictitious name permit
10 I' was ever filed or obtained by FCCF fron~ any licensing boardicommittee. At all times
11 !I relevant to the charges and allegations in this Accusation, PA I3.E. was the sole owner and
li, 12 s:-~areholde.: of FCCf and :·espondent was his suo. ervising phv. sic ian at FCCF.
, < li -42. Sometime prior to on or about June 30,2011, PA U.E. met respondent. PA L II 14 !: BE:. was referred to respo:1dent ry some of his patients who had told him about
1: 15 I; respo:1dent, and that they had been referred to respondent's clinic tor medical marijuana.
I
16 I[ :\t ~ome point, PA B.E. met with respondent, :J.nd then he subsequently hired respondent
17 !I for ti:e pcsi:ior: d FCCF's supc;vising physician. Although respondent \Vas hired as a 1:
18 lj ··sup::rvising Physician" to din:l'lly supe~vise PA B.E. at FCCF, he was paid by PA B.E.
19 \: to perform his rcle as a superv:sing physician at FCCF. Respondent held no ownership
20 I: :nterest in FCCF, had no autl:orit) to hire and/or fire FCCF employees, did not set work
21 \I schedules for FCCf employees, did not sign paychecks for FCCF employees, did not i.
22 [I 7.3 :I
conduct a:1y ;:o:npetcncy evaluations ofPA B.E. or FCCF's employees, including medical
assistants, related to their job perfcnrance :md!or adequacy of their training, and never
24 II sa\v patients at FCCF.
25 II l·
43. Pursuant to the Delegation. respondent was to review, audit, and countersign
~r, .o I every medical record \vritten by P:\ B.E. \\ith:n seven (7) days ofthc encounter. The
~7 Delegation did not es!ab:ish a schecule under which respondent wouid be physically
:'.lS prescrt at FCCF. Significantly, reguding controlled substances, the Delegation indicated,
49 AccusatiO!l Case No. 09-2012-2235991
II p "Drug orders shall either be based on protocols established or adopted by Supervising
2 ! Physician. [respondent] or shall bc appro•·ed by Super..-ising Ph;vsician [respondent ]for
3 !I the specific patient prior to being issued or carried out. Noru ithstanding the foregoing,
4 ~~ all drug orders for Controlled Substances shall be approved by Supervising Physician
sl' (respondent] for the specific patient prior to being issued or carried out." (Emphasis
6 I; added.) Lastly, the Delegation indica~ed that respondent had authorized PA B. E. to " ...
7 1
perform all tasks set forrh in subsections (a), (b), (c), (d), (e), (J), and (g) of Section
8
9
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1399.541 of the Physician Assistant Regulations, subject to the limitations and conditions
described in this Agreeme1~! or established by Supervising Physician [respondent} in any
applicable protocols or othemise." (Emphasis added.) Significantly, the Delegation did
not authorize PA B.E. to supervise any other licc:1sed or non-licensed medical staff at
FCCF including, but not iimited to, rr.edical assistants working at FCCF. Lastly, the
Delegatio:1 did not establish a schedule under which rcspo::dcnt would be physically
present at FCCF.
44. Purs:.lant :o the Protocols, the general principles of pain management were
16 i established for treating patients seeking ch:onic pain management at FCCF. The II
17
1
1 pro:ocols did not au:horize PA B.t". to supervise any other licensed or non-licensed
18 :J medical staff at FCCF including, but not limited to, medica! assistants working at FCCF. II
19 jj Lastly, the Protocols did not e.stab;ish a s.-:hedu!e under which respondent would be
20 j; physically present at FCCF.
'i 21 !, 4~. Pursuant to the Agreement. although respondent was required to supervise
22 tl FCCF's medical pro\'!ders :ncluding PA B.E., nurse practitioners and/or medical
23 ~~ assistants, the Agreeme!".t failed to include a schedule under which respondent was
24 jl required to be physically present at the clinic. The Agreement indicated that respondent
25 was only required to maimain wire or internet contact with the providers seven (7) days a i
26 I week between the hours of 8:00a.m. and 8:00p.m. And in terms of respondent's patient
2711 i1:teraction at FCCF, :he Agrccr::er.t did not require him to ''directly consult with
28 l [FCCF's] paticn:s or resolve issdcs ir.\olving patients or medical providers that arise out
I 50 I
1--·-----__ , __ ... _____ . Aw.:sa::cn Case ;.;o, 09·2012·223 5991
of the norma: course of business." He was only required to review and counter-sign
2 charts ~wice a mcntn.
3
4
5
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17 !i 18 il
46. At all times relevant to the charges and allegations in t::is Accusation, FCCF
employed nu1-:1erous r.1edical assistants including, but not limited to, E.H., E.M., E.S., and
M.F. PA B.E. (not responder.t) was respo:1sible for interviewing and hiring all employees
at FCCF including, E. H., E.M., E.S., and YLF., was responsi:,!e for writing and signing
FCCF's employee paychecks, was responsible tor setting FCCF employee's work
schedules and granting va.:-;:nion tirr:e oft~ and was responsible for supervising FCCF's
medical assistants. FCCF's medical assistants were allowed to routinely perform various
medical services at FCCF including, but no; limited to, intravenous placement on patients
even though no supervis:ng physician (i.e., respondent) was physically present at FCCF
when the services were being performed.
FOURTH CAUSE FOR DISCIPLl-="'E
(Improper Supcnision of Medical Assistants)
VI '"t,. Responccn: :s further subject to disciplinary action under sections 2227 and 2234, as
defined by section~ 2052,2069,2264,3501,3502 and 3502.1, of the Code, and California Code
of Regulatim:s, Tit:e 16, sectfor.s 1399.540, :399.541 and ; 399.545, in that, as the supervising
physician and tl;rm:gh PA R.E.'s practice of medicine, he failed to properly supervise medical
19 assistants at FCCF, as more particularly alleged hereinafter:
2G 48. Paragraphs 27 through 46, above, are hereby ir.corporated by reference and
21 )l realleged as iffully set forth herein. p
22 jl i
23 ',\ H
FIFTH CACSE FOR DISCIPLINE
(i]nlicensed Practice of :Vledicine)
49. Respondent is furt:1er subject to disciplinary action under sections 2227 and 2~ \\ 25 11 2.234, as defined by sectio>ls2052, 2069,2264,3501,3502 and 3502.1, ofthe Code, and
r :26 :I California Code ofRegda:icns, t:tk 16, sections 1399.540,1399.541 and 1399.545, in
27 ll that, as the supervising physi;;iaa and th:·ough PA B.E.' s practice of medicine, he engaged I!
28 \l in the uniicc:1sed oruc:ice of metEci:H.:, as more particuiarlv al!eged hereinafter: 1: ' •
k 51
I· Ac;:u;ation Case No. )9-20!2-223599
2
3
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5
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50. Paragraphs 27 t:-trough 48, above, arc hereby incorporated by reference as if
fully set forth herein.
SIXTH CAUSE FOR DISCIPLI~E
(Prescribing Dangerous Drugs or Controlled Substances
Without an Appropriate Prior Examination and/or Medical Indication)
5l. Respor.dent is further subject to disci?linary action under sections 2227, 2234, 350 I,
3502 ar:d 3502.1, as defined by section 2242, of the Code, and California Code of Regulations,
title 16, sections 1399.540, 1399.541 and 1399.545, in that, as the supervising physician and
through PA B.E.'s practice of medicine, he allowed PA B.E. to prescribe, dispense and/or furnish
dangerous drugs as defined by section 4022, of the Code, without a:1 appropriate prior
examination and/or n:edica: indication, to patients P.H., P.P., L.A., W.J., K.M., A.W., E.R. and
T .T., as more particularly alleged hereinafter.
52. Paragraphs 27 through 34, above, are hereby :ncorporated by reference and
realleged as if fully set forth herein.
SEVENTH CAUSE FOR DISCIPLINE
(Violation of State Statute or Regulation Regulating
Dangerous Drugs or Controlled Substances)
53. Respor,dent is further subject to disciplinary action under sections 2227 and 2234, as
defined by sections 2238,3501, 3502 and 3502.1, of the Code, section 11153 ofthe Health and
Safety Code, and California Code of Regulations, title 16, sections 1399.540, 1399.541 and
1399.545, in that, as the supervising physician and through PA B.E.' s practice of medicine, he
violated ;;tate laws and/or regulations regulating the prescribing of dangerous drugs and/or
controlled substar:ces, as more particularly alleged hereinafter:
54. Paragraphs 27 through 34, above, are hereby incorporated by reference and rcallegcd
as if fully set forth herein.
l/1
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52 _____ , ___________________ ., -----ACCi..Sation Ca$e No. 09-20:2-2235991
EIGHTH CAUSE FOR DISCIPLINE
(Failure to Maintain Adequate and Accurate Records)
55. Respondent is further subject to disciplinary action under sections 2227,2234, 3501,
3502 and 3502.1, as defined by section 2266, of the Code, in that, as the supervising physician
and through PA B.E.'s practice of medicine, he failed to maintain adequate and accurate records
regarding his care and treatment ofpatients P.H., P.P., L.A., W.J., K.M., A.W., E.R. and T.T., as
mere particularly a!leged hereinafter:
56. Paragraphs 27 through 34, above, are hereby incorporated by reference and rcallcged
as iffuily set forth herein.
Nl~TH CAUSE FOR DISCIPLI~E
(Practicing l.;nder False or Fictitious Name Without Fictitious Name Permit)
12 I 57. Respondent is tlllther subjec~ to disciplinary action under sections 2227 and 2234, as
13 defined by sections 2285,2286,2406,2410 and 2-H5, ofthe Code, in that, as the supervising
14 physician and through PA B.E.' s p;actice of mecic\ne, he practi::ed medicine under a fictitious
15 name without a valid ficritious na:ne permit issued by the licensing agency, as more particularly
16 alleged hereinafter:
1 7 58. Paragraphs 27 thro•Jgh 50. above, arc hereby inccrpa~a:cd by reference and realleged
18 , as i:'fu!ly set forth herein.
I 19 1
.
,I 20 '•
TENTH CAUSE FOR DISCIPLI.i'iE
(False Representations)
21 'I 59. Respondent is further subject to disciplinary action under sections 2227 and 2234, as
n II Cet1neC by socti on 22 61, of tho Code, in thot he knowingly made m signed a document d i<eetly m
23 li indircct:y related to the practice of medicine which falsely represented the existence or
~~~~- ~ 2·\ · nonexistence of a state of facts, as more parti;::ularly alleged hereinaner:
25 j; 60. Paragraph 32. subdi\'isions (c;::c) through (fff), above, is hereby incorporated by il
26 l! reference and realleged as i-:"fully set forth herein.
27 \ ///
28 I 1/i
1\ "
1:---~ .. -- 53
:\ccusa:ion Case No. 09-2012-2235991
14
15 II 16
i
ELEVEI\'TH CAUSE FOR DISCIPLlt~E
(Dishonesty or Corruption)
61. Respondent is further subject to disciplinary action under sections 2227 and 2234, as
defined by sections 2234, subdivision (e), of the Code, in that he has engaged in an act or acts of
dishonesty or corruption substantially related to the qualifications, functions, or duties of a
physician, as more particularly alleged hereinafter:
62. Paragraph 32, subdivisions (ccc) through (fff), above, is hereby incorporated by
reference and rca!leged as if fully set forth herein.
T\VELFTH CAUSE FOR DISCIPLI:'\'L
(Vnprofessional Conduct)
63. Respondent is further subject to disciplinary action under sections 2227 and
2234, of the Code, in that he has engaged in conduct which breaches the rules or ethical
code of the medical profession, or conduct which is unbecoming to a member in good
standing of the medic.al profession, and which demonstrates an unfitness to practice
medicme, as more particularly alleged hereir:after:
64. Paragraphs 27 through 62, above, are hereby incorporated by reference and
17 I rcaliegeJ as iffully set forth herein.
18 II I9
1
1'1 I
20 II 65.
THIRTEENTH CAliSE FOR DISClPLll"E
(Violation of a Provision or Provisions of the Medical Practice Act)
Respondent is further subject to disciplinary actior. under sections 2227 and 2234, as
2: ll defined by section 2234, subdivision (a), of the Code, in that he violated a provision or provisions
22 II of the Medical Pra;:tice Act, as more particularly alleged here:nafter:
!I 23 il 66. Paragraphs 27 through 64, above, are hereby in:.:orporated by reference and realleged
I! 24 1! as if fld\y set forth hereir:.
25 ll /// 26 ~~ II!
27 ill ///
28 I /// il II ;)---------
54
A~C'JSat:Gn Case No, 09·2012·223599
2
3
7
I
PRAYER
\VllEREFORE, Complainant requests that a hearing be held on the matters herein alleged,
and that following th: hearing, the Medical Board of Ca!itornia issue a decision:
l. Revoki:~g or suspending Physician's and Surgeon's Certificate Number A39992,
iss'Jed to respondent R:chard Berton :V1antell, Yl.D.;
2. Revoking, suspending or denying approval of respondent Richard Berton Mantel!,
M.D.'s authority to supervise phys:cian assistants, pursuant to section 3 527 of the Code;
Ordering respondent Richud Berton Ma:1tell, ?\·f. D., to pay the Medical Board of
Caliio~nia, if placed or: probation, the costs of probatio:1 oonitoring; and
.:. Taking such other and further action as deemed necessary and proper.
DATED: May 1!+, 2015 ---Executive Director \1edical Board o: Caiifor:lia Depat1ment of Co:1sumer Affairs State of California Complainant
__ ss __ _j Accusc.tic~, Case ~o. 09·2012-223 5991
