STATE OF MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH BUREAU OF HEARINGS

Transcription

1 STATE OF MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH BUREAU OF HEARINGS In the matter of Arthur Peter Bober, M.D., Petitioner v Bureau of Health Services, Respondent / Docket No Agency No Agency: Case Type: Department of Community Health Appeal Reinstatement Issued and entered this 25 th day of March, 2004 by C. David Jones Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY This case began in the Bureau of Health Services, Department of Consumer and Industry Services, which is now the Bureau of Health Professions, Department of Community Health. On September 16, 203, Petitioner s Application for Reinstatement was received. On October 1, 2003, the People s Response to Reapplication for Reinstatement was filed, which opposed reinstatement. On October 8, 2003, a Notice of Hearing was mailed scheduling the hearing to commence on November 14, 2003, at 611 West Ottawa Street, Lansing, Michigan.

2 Page 2 On October 29, 2003, an Order Granting Adjournment at Respondent s request was issued and entered rescheduling the hearing for December 3, On November 17, 2003, an Order for Adjournment was issued and entered, rescheduling the hearing for January 12, On January 12, 2004, the hearing commenced as scheduled. Paul W. Jones, Assistant Attorney General, represented Respondent. Arthur Peter Bober, M.D., represented himself. The following witnesses testified: Arthur Peter Bober, M.D., and Thomas L. Haynes, M.D., President and Medical Director of WeMac, for Petitioner. The following exhibits offered by Respondent were admitted into evidence: Respondent s Exhibit A Respondent s Exhibit B Respondent s Exhibit C Arizona Order for Inactivation of License, 4/15/93 Arizona Rehabilitation Stipulation and Order 12/21/93 Michigan Order of Summary Suspension, 3/22/96 Respondent s Exhibit D Michigan Administrative Complaint, 3/22/96 Respondent s Exhibit E Michigan Final Order, 6/13/97 Respondent s Exhibit F Michigan Proposal for Decision, 7/19/99 Respondent s Exhibit G Michigan Order Denying Reinstatement, 9/27/99 The hearing record was left open for ten days for Petitioner to submit exhibits

3 Page 3 concerning his continuing medical education, employment and volunteer work. On January 15, 2004, an Order for Continuance was issued and entered scheduling the hearing to continue on March 8, The additional day of hearing was scheduled mainly to give Respondent an opportunity to question Petitioner about his exhibits. On January 20, 2004, Petitioner s exhibits concerning employment and continuing medical education were received and together marked Petitioner s Exhibit 1. On January 27, 2004, a letter was received from Paul Jones, Assistant Attorney General. He indicated he had no objection to admitting Petitioner s Exhibit 1, and the hearing scheduled for March 8, 2004, was unnecessary. Petitioner s Exhibit 1 is admitted. On January 29, 2004, an Order Canceling Hearing for March 8, 2004, was issued and entered. ISSUES AND APPLICABLE LAW This hearing was held pursuant to the Public Health Code of 1978 as amended (Code), MCL et seq. The Administrative Hearing Rules for this hearing are found at 1996 AACS, R The issue in this case is whether Petitioner s license should be reinstated. FINDINGS OF FACT 1. Petitioner was licensed to practice medicine in Michigan in He went to medical school in Poland. He was board eligible in internal medicine. He also practiced dermatology.

4 Page 4 2. Petitioner started drinking alcohol at age 15. He described his problem as insidious and progressive. In 1989, he was involved in an intervention, where family and others confronted him with his drinking problem. Thomas L. Haynes, M.D., of WeMac (addictionist) participated in the intervention. Petitioner received structured outpatient treatment from WeMac for five months. 3. Petitioner was sober for about 1½ years, and then relapsed. He completed the Talbot Recovery Program in Georgia, which lasted about six months. 4. Petitioner moved to Arizona in 1993, where he began practicing medicine. He informed the Arizona Board of his alcohol problem, and on December 21, 1993, signed a Rehabilitation Stipulation and Order. 5. In February 1994, Petitioner was arrested for assault (domestic violence) while he was intoxicated. The Arizona Board requested he go to the Talbot Recovery Center for evaluation and treatment, but Petitioner failed to do so, apparently because of financial problems. The Arizona Board issued an Order for Inactivation of License with Cause on or about April 15, 1994 (misdated April 15, 1993) Respondent s Exhibit A. 6. Petitioner returned to Michigan and practiced medicine. On April 24, 1995, an Administrative Complaint (first complaint) was filed against Petitioner. An attempted settlement failed. Thomas L. Haynes, M.D., performed an assessment on November 13, 1995, and diagnosed Petitioner as alcohol dependent. On March 6, 1996, Dr. Haynes concluded Petitioner was not compliant with treatment. The first complaint was withdrawn, and on March 22, 1996, a second complaint was filed, and Petitioner s license was summarily

5 Page 5 suspended. 7. Petitioner was defaulted at the scheduled hearing. On June 13, 1997, a Final Order was issued and entered. The Board found Petitioner had violated Section 16221(a) and 16221(b)(ii) of the Public Health Code, and suspended Petitioner s license for a minimum of six months and one day. 8. Around the time Petitioner lost his Michigan license, he lived off his savings, investments, and retirement benefits for a while. He was in and out of sobriety, and lived on the streets or in a Mission. However, he was able to get odd jobs. 9. On February 2, 1999, Petitioner applied for reinstatement. After hearing, the Proposal for Decision recommended the application be denied. On September 27, 1999, the Michigan Board of Medicine issued an Order Denying Reinstatement. Petitioner did prove he had good moral character. Petitioner, however, did not prove that he was able to practice with reasonable skill and safety to patients, or that it was in the public interest for Petitioner to resume practice. Petitioner s evaluation by Michael Liepman, M.D., was found to be superficial and not based on adequate contact with Petitioner. Also, Petitioner did not show he could practice competently, especially since he had not practiced since Early in 1999, Petitioner had returned to Dr. Haynes and asked for his support with reinstatement. Dr. Haynes detected alcohol on him and declined to help him. 11. In late December 1999, Petitioner reached a crisis in his life. He had been in jail for resisting arrest, domestic violence, and nonpayment of child support. He was released December 24, 1999, and had no place to go except the Mission. Alcohol was not

6 Page 6 helping him, and he was deteriorating physically. He had a spiritual reawakening. He decided he had to change. 12. Around December 1999, Petitioner returned to WeMac and Dr. Haynes. Dr. Haynes provided individual treatment once every four weeks up to hearing. Petitioner began attending Caduceus meetings facilitated by Dr. Haynes about twice per month, until August Since then he has only attended twice. He has a sponsor at Caduceus who was not able to attend the hearing. 13. Petitioner testified he also attends Alcoholics Anonymous three times per week. 14. Petitioner is not currently participating with the Health Professionals Recovery program. He is also not undergoing any screens for substances. 15. Dr. Haynes recommended the State return Petitioner s license under whatever limits are appropriate. Dr. Haynes testified Petitioner has made a miraculous transformation, he works his recovery, he is intent on helping others, and Dr. Haynes has no reservation about advocating for him. Dr. Haynes did not recall testifying for a doctor s reinstatement before. 16. Dr. Haynes is an addictionist, currently medical director of WeMac, and formerly chair of Health Professional Recovery. 17. Dr. Haynes has been actively assisting Petitioner s recovery, but does not socialize with him. 18. If the Board requires monitoring, Petitioner is willing to enter a contract

7 Page 7 with the Health Professional Recovery Corporation. Dr. Haynes also believes monitoring should be required, and is willing to be the addictionist of record. 19. Petitioner desires in good faith to return to practice. He testified that medicine is the only thing he knows, and he has a gift and something to give back. 20. Dr. Haynes recommended Petitioner start out in a limited employment setting with low stress, at 40 hours per week. He is willing to investigate possible employment for Petitioner. Petitioner is interested in teaching more and working with the elderly and former alcoholics. 21. From about the spring of 2000 to 2003, Petitioner did construction work seasonally. Off season he performed odd jobs, such as grocery clerk. 22. Petitioner is an adjunct professor at Davenport University, Battle Creek Campus. He was first appointed on August 22, He taught in the fall of 2003 the course entitled Clinical Patient Care. He described his students as medical assistants, aspiring nursing students, and medical techs. On January 5, 2004, Petitioner was reappointed to teach the next semester beginning January 12, Classroom Observation Notes prepared by the Health Professionals Department Coordinator at Davenport provide a positive review of Petitioner s teaching and described him as professional. 23. Petitioner testified he has performed community service, including assisting Red Cross Blood drives, assisting an outreach for the poor, and being a volunteer medical subject to test new drugs. He also regularly provides plasma for compensation. 24. Petitioner has borderline diabetes and is on oral medication.

8 Page Petitioner has submitted documentation of participation in continuing medical education. The documentation shows as follows: 1997, 53 hours; 1998, 103 hours; 1999, 34 hours; 2000, 38 hours; 2001, 51 hours; 2002, 58 hours; and 2003, 37.5 hours, Petitioner s Exhibit Dr. Haynes was not able to offer an opinion on Petitioner s current skills, and no other assessment is on record. Petitioner is willing to attend a refresher course. He has obtained the materials for such a course at the Mayo Clinic, but has not yet attended. CONCLUSIONS OF LAW A. Legal Standards for Reinstatement Sec (1) A board or task force may reinstate a license or issue a limited license to an individual whose license has been suspended or revoked under this part if after a hearing the board or task force is satisfied by clear and convincing evidence that the applicant is of good moral character, is able to practice the profession with reasonable skill and safety to patients, has met the criteria in the rules promulgated under section 16245(6), and should be permitted in the public interest to resume practice. Pursuant to the rules promulgated under section 16245(6), as a condition of reinstatement, a disciplinary subcommittee, upon the recommendation of a board or task force, may impose a disciplinary or corrective measure authorized under this part and require that the licensee attend a school or program selected by the board or task force to take designated courses or training to become competent or proficient in those areas of practice in which the board or task force finds the licensee to be deficient. The board or task force may require a statement on a form approved by it from the chief administrator of the school or program attended or the person responsible for the training certifying that the licensee has achieved the required competency or proficiency. (2) As a condition of reinstatement, the board or task force shall

9 Page 9 place the licensee on probation for 1 year under conditions set by the board or task force. If a licensee whose license has been revoked cannot apply for reinstatement for 5 years after the date of revocation, then, as a condition of reinstatement, the board or task force shall require the licensee to take and pass the current licensure examination. (3) A board or task force shall not reinstate a license suspended or revoked for grounds stated in section 16221(b)(i), (iii), or (iv) until it finds that the licensee is mentally or physically able to practice with reasonable skill and safety to patients. The board or task force may require further examination of the licensee, at the licensee s expense, necessary to verify that the licensee is mentally or physically able. A licensee affected by this section shall be afforded the opportunity at reasonable intervals to demonstrate that he or she can resume competent practice in accordance with standards of acceptable and prevailing practice. MCL Good moral character means good moral character as defined and determined under Act 381 of the Public Acts of 1974 as amended, being Sections of the Michigan Compiled Laws. MCL (5) PA 381 in reference to good moral character provides in relevant part as follows: The phrase good moral character or words of similar import when used as a requirement for an occupation or professional license, or when used as a requirement to establish or operate an organization or facility regulated by the state in the Michigan Compiled Laws and administrative rules promulgated under those laws shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner. MCL (1); MSA (1)(I) The November 4, 1996, Guidelines on Reinstatement provide as follows: Unless otherwise provided, and in addition to other requirements set forth by the statute, each applicant for

10 Page 10 reinstatement must establish his or her compliance with the following criteria, as applicable, by clear and convincing evidence before a licensing board or task force will consider reinstating his or her professional license or registration: 1. The applicant has participated in one or more community service or professional volunteer activities or programs since the revocation or suspension of his or her license or registration. 2. The applicant has successfully completed one or more substance abuse treatment programs, which may include inpatient or outpatient care at a substance abuse facility, regular attendance at Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings, AA/NA sponsorship, regular or random witnessed alcohol/drug urine or blood screens, individual or group counseling or therapy, Caduceus or other professional support group attendance, an agreement with his or her employer for monitoring, or ongoing review by a primary care physician knowledgeable and experienced in the treatment of chemical dependency. This criterion applies only if the applicant s license or registration was suspended or revoked due to a substance abuse violation. 3. The applicant has participated in inpatient or outpatient treatment for mental, psychological, emotional and/or physical disorders. This criterion applies only if the applicant s license or registration was revoked due to a mental, psychological, emotional and/or physical disorder. 4. The applicant has complied with all terms of his or her order of discipline, including payment of fines and costs as set forth in said order. 5. The applicant has successfully completed one or more continuing education programs during the period of suspension or revocation, or consumed current literature concerning the practice of his or her particular profession. 6. The applicant has participated in didactic or clinical

11 Page 11 training, including remedial education in areas previously found deficient, or successfully completed an overall refresher course if the applicant has been out of practice for a significant period of time. 7. The applicant has submitted an assessment or reevaluation of the applicant s professional skills and knowledge by an individual or entity who is trained or otherwise qualified to make such an evaluation. 8. The applicant desires in good faith, to be restored to the privilege of practicing his or her profession in Michigan. If a board or task force, in reinstating a license or registration, deviates from these guidelines, the board or task force shall state the reason for the deviation on the record. B. Good Moral Character Petitioner has established he has good moral character. He is remorseful, takes responsibility for his problems, has insight into his problems, and does not hide them. C. Ability to Practice with Skill and Safety Petitioner has met the requirement that he be able to practice with reasonable skill and safety to patients. As to the alcoholism, the testimony of Dr. Haynes shows recovery. The evaluation by Dr. Haynes (unlike the evaluation by Dr. Liepman in the first reinstatement hearing) is in depth and based on extensive contact with Petitioner. Although Petitioner is not presently being monitored, he is willing to accept this. As to the Petitioner s medical skills, although Petitioner has not practiced medicine recently, he has participated in continuing medical education and taught a course entitled Clinical Patient Care. Under Health Code Section 16247(1), as a condition of

12 Page 12 reinstatement, Petitioner could be required to take training, such as a refresher course. Petitioner is willing to take such training. D. Criteria in Guidelines Each applicant for reinstatement must establish compliance with eight specified criteria, if applicable. Each of the eight is discussed below. 1. Community Service Petitioner has complied with this. 2. Substance Abuse Treatment Petitioner has complied with this. 3. Participation in Treatment for Psychological Disorders This is not applicable. 4. Terms of the Order of Discipline Petitioner has complied with this. 5. Continuing Education Petitioner has complied with this. 6. Training Petitioner has taken continuing medical education. Although he has not taken a refresher course, this may be made a condition of reinstatement, as discussed above. 7. Evaluation This also may be made a condition of reinstatement.

13 Page Good Faith Desire Petitioner has met this requirement.

14 Page 14 E. Public Interest Petitioner has shown it is in the public interest that he resume his practice. Petitioner has shown recovery and has much to offer. PROPOSED DECISION Based on the above Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge recommends that Petitioner s application for reinstatement be approved, with appropriate conditions. EXCEPTIONS The parties may file exceptions to this Proposal for Decision within 15 days after the Proposal for Decision is issued and entered. An opposing party may file a response within 5 days after exceptions are filed. Any such exceptions and responses shall be filed with the Department of Community Health, Bureau of Health Professions, P.O. Box 30670, Lansing, Michigan 48909, Attention: Robert C. Miller. C. David Jones Administrative Law Judge