before the state of california kimberly kirchmeyer, … anthony 2019... · 2019. 8. 22. · dr....
TRANSCRIPT
BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of the Petition for Interim Order of Suspension:
KIMBERLY KIRCHMEYER, Executive Director, Medical Board
of California, Petitioner,
vs.
ANTHONY HORAN, M.D., Respondent
Case No. 800-2017-033645
OAH No.·2019060631
DECISION ANO ORDER ON PETITION FOR INTERIM SUSPENSION
ORDER
Marcie Larson, Administrative Law Judge, Office of Administrative Hearings
(OAH), State of California, heard this matter on July 17, 2019, in Sacramento, California.
Michael C. Brummel, Deputy Attorney General, appeared on behalf of petitioner
Kimberly Kirchmeyer, Executive Director of the Medical Board of California (Board).
Respondent Anthony Horan, M.D. appeared at the hearing and represented
himself.
Oral and documentary evi~ence was received. The record was closed and the
matter was submitted for decision on July 17, 2019.
SUMMARY OF DECISION
Petitioner filed the Petition seeking an Interim Suspension Order (ISO) against
respondent under Government Code section 11529, based upon allegations that
respondent has neuropsychological deficits impacting primarily frontal lobes/ '
executive functions, and as a result, is unable to safely practice medicine. The
declarations and documents petitioner submitted demonstrate there is a reasonable
probability that petitioner will prevail in the underlying action based upon respondent - -
having physical and/or me~tal c~nditions which render him unable to practice
medicine safely. Additionally, the likelihood of injury to the public in not issuing the
order outweighs the likelihood of injury to the licensee in issuing the order. An ISO is
therefore issued against respondent's certificate pursuant to Government Code section
11529.
FACTUAL FINDINGS
Background
1. On March 31, 2000, the Board issued Physician's Certificate number G
85664 (certificate) to respondent. His certificate was in full force and effect at all times
relevant to this matter. His certificate will expire on January 31, 2020, unless renewed
or revoked.
2
2. On June 17, 2019, petitioner filed a Petition for ISO with OAH, based on
all~gations that respondent suffers from a mental and/or physical illness that impairs
his ability to practice medicine safely and that permitting him to continue to engage in
the practice of medicine will endanger the public health, safety and welfare. Pursuant
to Government Code section 11529, subdivision (b), petitioner submitted declarations
and documents in support of the ISO.
Evaluation ~y Howard J. Glidden, Ph.D.
3. In approximately 2017, the Board received a complaint from the Delano
Regional Medical Center (Delano) concerning respondent's ability to safely practice
medicine, and reporting a suspension of his hospital privileges. Respondent practiced
urology and performed surgeries at Delano. As result of an investigation conducted by
the Board, respondent was referred to Howard J. Glidden, Ph.D. a Clinical
Neuropsychologist, for a Neuropsychological evaluation.
4. Dr. Glidden is board-certified by the American Board of Professional
Neuropsychology and is a Fellow of the American College of Professional
Neuropsychology. Since 1997, Dr. Glidden has operated a private clinical
neuropsychology practice in Fresno, California. Dr. Glidden was asked by the Board to
"articulate [respondent's] current level of functioning and to provide recommendations
as appropriate." Dr. Glidden completed the evaluation of respondent on March 5,
2019, and issued a report, which he provided to the Board.
5. In preparation for the evaluation, Dr. Glidden reviewed records provided
to him by a Board investigator, which included allegations made against respondent
by staff at Delano, and "various medical evaluations" conducted on respondent.
Specifically, Dr. Glidden reviewed an evaluation by Don H. Gaede, M.D., conducted on
3
June 18, 2018, which revealed a "diagnosis of mild cognitive impairment, affecting his
recent memory." Dr. Glidden also reviewed a subsequent test, conducted by Kurt V.
Miller M.D. on December 13, 2018, which "yielded the impression: Minimum cognitive
impairment on a screening examination."
6. As part of the evaluation, Dr. Glidden obtained a history from
respondent, including past medical, psychiatric/psychologic, educational, employment,
social, and family. Dr. Glidden conducted a mental status examination of respondent
and administered 22 tests to assess his level of functioning. Respondent was 78 years
old at the time of the.evaluation. He informed Dr. Glidden that he retired from his
medical practice in "May" and has no plans to return to practice at this time. Prior to
respondent's retirement, he had performed surgeries at Delano for 10 years. He also
ran a private practice. Respondent informed Dr. Glidden that in the spring of 2017, the
executive committee of Delano suspended his hospital privileges. Respondent
contended the reason was that staff believed he had problems with his vision.
Respondent also stated that if he 111 had a reversal in finances, [he] might return to
practice."
7. He reported a past medical history, including lens replacements for
cataracts and fracturing ribs after a hiking fall. Respondent explained that he had
"some problems with equilibrium," which he was addressing through balance training.
Respondent reported that he exercised six to seven days per week; he plays tennis,
sings in a·choir, is an artist, and is publishing the third edition of a ·urology text.
8. Respondent's mental status examination revealed that he was "oriented
to person, place, day.of week/month and year, as well as situation." However,
respondent "incorrectly identified the date of the month as the 4th when it was the
5th." Respondent attempted all tasks requested of him, but as tlie "task demands
4
became increasingly difficult fo'r [respondent], he voiced his frustration." He also
voiced "agitation when he felt.his performance as suboptimal, in an apparent
defensive manner intended to minimize the importance of the evaluation."
9. Significant test findings included moderately impaired strength in the
non-dominant upper extremity, and upper extremity fine motor coordination was in
the below average range bilaterally. For language functioning receptive skills,
respondent's single-word reading speed was in the extremely low range as measured
by the Strop Color and Word Test. Respondent's results on the Rey-Osterreith
Complex Figure Test, a "measure of incidental free recall learning which evaluates the
individual's ability to acquire nonverbal information without directed effort •. revealed
"four false-positive responses (recalling elements as being on the design, which
actually were not)." Dr. Glidden opined that this result was "very elevated" for
respondent's age.
10. Respondent's scores on the Wechsler Adult Intelligence Scale-IV, subtest
scores ranged from the very low to very superior levels of ability. Dr. Glidden noted
"[s]ignificant relativeweaknesses were noted on subscales assessing the rapid analysis
and synthesis of abstract visual information, and nonverbal information processing
speed and impulse inhibition." In particular, the "variability among subtest scores was
significant,"
11. Dr. Glidden also opined that respondent's performance on executive
function testing, "revealed limited ability to cognitively sequence, plan and organize
behavior, and did reveal evidence of impaired response inhibition {impulsivity)."
Respondent's performance on the Stroop Color-Word Test "yielded an Interference
score in the Very· Low range." His performance on the Trail Making Test B, which is
measure of visual-motor sequencing, set-shifting flexibility, and divided attention, was
5
in the mild to moderately impaired range. His "[n]onverbal problem solving and
categorization were in the Mild to Moderately Imp'aired range."
Respondent completed the Wisc;onsin Card Sorting Test-64, which "requires the
ability to create a rule that will guide sorting, to keep in mind the outcomes of prior
trials (working memory), and to use deductive reason." Dr. Glidden opined respondent
"had considerable difficulty conceptualizing nonverbal problem-solving schemas and
systematically testing alternatives and hypotheses using immediate feedback to
monitor and modify performance."
12. Dr. Glidden's overall impressions based on his evaluation, identified
respondent's pattern of deficits to include:
variable attention and sustained concentration; moderately
impaired strength in the left upper, extremity; below
average coordination in the upper extremities bilaterally;
slowed visual motor speed; limited phonemic and.semantic
verbal spontaneity; significantly slowed nonverbal
information processing speed; limited analysis and
synthesis of abstract visual information; and impaired
executive functioning. Executive functioning deficits
included: slowed response inhibition, difficulty with set
shifting flexibility, impaired nonverbal abstract reasoning,
cognitive inflexibility, limited verbal spontaneity and '
perseveration. This pattern of deficits is indicative of a
bilateral frontal nidus, the etiology of which is unclear.
6
Dr. Glidden further opined that respondent's deficits are consistent with
"frontotemporal dementia." Dr. Glidden explained that "[i]ndividuals experiencing
frontotemporal dementia often experience an early decline in social/interpersonal
functioning, impairment in personal conduct regulation, emotional blunting, and
diminished insight." Dr. Glidden opined that respondent "does not appear to
appreciate, nor does he report any associated changes. Rather, he appears to find fault
in others, demeaning their status, professionalism and objectivity."
13. Dr. Glidden believes it would be "beneficial to obtain collate.ral
information" from family or coworkers who have interacted with respondent. Dr.
Glidden also recommended respondent obtain a "3.0-Tesla MRI scan evaluated by a
board certified neuroradiologist in order to better define possibly etiologies."
14. Dr. Glidden concluded with reasonable neuropsychological certainty, that
respondent's "pattern of deficits would directly impact his ability to practice safely as a
physician and surgeon at this time."
Respondent's Evid,ence
15. Respondent opposed the Petition. He denied that he suffers from any
cognitive impairment. He contended that the evaluations conducted by Drs. Gaede
and Miller, demonstrated mild cognitive impairment, but he was able to improve his
abilities since the evaluation and the findings are not accurate. During the course of
the hearing, respondent read from a prepared statement. When off-script, respondent
appeared confused about the proceedings.
16. Respondent takes exception to petitioner attempting to impose a
suspension on his license, because she is not a doctor, and as a result, cannot make a
medical diagnosis. Respondent also argued Dr. Glidden's opinions are "defective" in
7
several respects. Respondent disputes that Dr. Glidden is qualified to render an
opinion regarding his fitness to practice medicine, because he does not hold a medical
degree.
Respondent denied suffering from below average coordination in his upper
extremities. He submitted evidence of a recent tennis competition he completed as
proof of his physical abiliti~s. Respondent indicated that he underwent a procedure on
his left hand in November 2018, which caused a 50 percent loss of grip strength, which
accounts for the test findings of March 5, 2019, by Dr. Glidden.
Respondent does not believe he suffers from "limited phonemic and semantic
verbal spontaneity ... limited verbal spontaneity and perseveration." Respondent
contended that his "booming private practice up to spring 2017" was proof he was .
able to talk to his patients. Respondent also contended that the "alleged deficits [Dr.
Glidden] describes would probably be found in every urologist of [his] age practicing
successfully, i.e. they are age related and insignificant in regard to safe urologic
practice."
17. Although respondent has seen his primary care physician (PCP) since Dr.
Glidden issued his report, he did not provide the report to his PCP, believing the
finding were "over .reaching." Respondent did not indicate that he has any intention of
seeking additional testing or medical treatmentconcerning the deficits identified by
Dr. Glidden.
18. Respondent indicated that he has no current intention of practicing
medicine. He also believes it would be difficult to obtain malpractice insurance since
he has been retired for two years. However, respondent would like to retain his
medical license because he is in the process of completing a third edition of a book
8
about the treatment of prostate cancer. Any change to his license status might affect
his ability to sell the book.
Discussion
19. Dr. Glidden's opinion that respondent is currently not safe to practice
medicine due to his neuropsychological deficits is persuasive. Dr. Glidden conducted a
comprehensive neuropsychological evaluation of respondent that included
administering 22 tests. Respondent's performance on the tests administered supports
his opinion that permitting respondent to continue to engage in the practice of
medicine would endanger the public's health, safety and welfare.
20. Additionally, and of particular concern is respondent's lack of insight or
recognition of the deficits Dr. Glidden diagnosed and/or identified through his
evaluation. Respondent focused on Dr. Glidden's lack of a medical degree in an
attempt to minimize his opinion. However, respondent failed to recognize the
objective testing performed by Dr. Glidden served as the basis for his opinions. So,
while respondent stated he has no intention of returning to the practice of medicine,
his refusal to acknowledge actual deficits, his lack of insight into his condition, and his
unwillingness to seek assistance from his PCP, the significant harm he could cause
should he practice, is too great a risk to the public to allow him to retain his license at
this time.
21. When all the evidence submitted at the hearing is considered, petitioner
established that: (1) respondent is unable to practice medicine safely due to a physical
and/or mental health condition; and (2) permitting respondent to continue to engage
in the practice of medicine would endanger the public health, safety, and welfare.
Petitioner established further that: (1) there is a reasonable probability that petitioner
9
will prevail if an accusation is filed against respondent; and (2) tbe likelihood of injury
to the public in not issuing an ISO outweighs the likelihood of injury to respondent in
issuing the order. Consequently, respondent's certificate must be suspended, and
respondent cannot practice medicine until such time as an accusation is issued and a
decision is rendered thereon in accordance with Government Coc;fe section 11529,
subdivision (f), or this matter is otherwise resolved.
LEGAL CONCLUSIONS
_ 1. Government Code section 11529, subdivision (a), provides, in pertinent
part, that an interim order suspending a medical license may be issued where it is
shown that a licensee "has engaged in, or is about to engage in, acts or omissions
constituting a violation of the Medical Practices Act ... , or is unable to practice safely
due to a mental or physical condition, and that permitting the licensee to continue to
engage in the profession for which the license was issued will endanger the public
health, safety, or welfare."
2. Government Code section 11529, subdivision (e), provides that the
administrative law judge shall grant the interim order where, in the exercise of
discretion, the judge concludes that:
(1) There is a reasonable probability that the petitioner will
prevail in the underlying action.
(2) The likelihood of injury to the public in not issuing the
order outweighs the likelihood of injury to the licensee in
issuing the order.
10
3. Business and Professions Code section 822 allows the Board to revoke,
suspend or restrict a physician's license when it is established that the physician's
ability to safely practice medicine is impaired due to mental or physical illness
affecting competency. A license disciplined for that reason shall not be reinstated
unless the Board has received competent evidence of the absence of such a condition
and is satisfied that the physician again can safely practice medicine.
4. Petitioner need only prove her case by a preponderance of the evidence,
and this requires a demonstration of a reasonable probability that petitioner will
prevail in establishing the violations complained of in seeking the injunction or, in this
case, an interim suspension order. (People v. Frangadakis (1960) 184 Cal.App.2d 540,
549-50.)
5. Cause was established to grant an ISO against respondent pursuant to
Government Code section 11529 and Business and Professions Code section 822.
There is a reasonable probability that petitioner will prevail in the underlying action,
because respondent has physical and/or mental conditions which render him unable
to practice medicine safely. (Bus. & Prof. Code,§ 822.) The evidence in support of the
Petition indicates the likelihood of injury to the public in not issuing the order
outweighs the likelihood of injury to the licensee in issuing the order. Given
respondent's neuropsychological deficits, allowing him to continue to practice
medicine creates a risk to the public health, safety and welfare.
6. When all the evidence and arguments submitted in this matter are
considered, to protect the public health, safety and welfare, respondent's certificate
must be suspended ~ntil an accusation is filed and a decision is rendered thereon
pursuant to Government Code section 11529, subdivision (f), or this matter is
otherwise resolved.
11
ORDER
The Petit.ion for an Interim Suspension Order is GRANTED. Physician's and
Surgeon's Certificate Number G 85664 issued to Anthony Horan, M.D., is SUSPENDED
until an accusation is issued and a decision is rendered thereon in accordance with
Government Code section 11529, subdivision (f}, or this matter is otherwise resolved.
Failure to comply with any of the requirements of Government Code section 11529,
subdivision (f), shall nullify the interim suspension order.
DATE: July 29, 2019 c:OocuSlgned by:
'Pl IM-c-i-t:- :1.~ .... . F72F4885838541 C ...
MARCIE LARSON
Administrative Law Judge
Office of Administrative Hearings
12