SocmrxridvdH er wDd ll 12 13 15 16 17 18 19 20 21 a2 2B 4 25 26 27 28 Mark Brnovich Attorney General (Firm State Bar No. 14000) ‘Anne Froedge Assistant Attorney General State Bar No. 011354 Licensing and Enforcement Section 2005 N. Central Avenue Phoenix, Arizona 85004 Telephone: (602) 542-7984 Fax: (602) 364-3202 Attorneys for the Arizona Medical Board BEFORE THE ARIZONA MEDICAL BOARD IN THE OFFICE OF ADMINISTRATIVE HEARINGS In the Matter of Case No. 17A-14879-MDX GREGORY J. PORTER, M.D. FIRST AMENDED COMPLAINT AND NOTICE OF HEARING Holder of License No. 14879 ; a. . For the Practice of Allopathic Medicine | (Assigned to Administrative Law Judge In the State of Arizona. Diane Mihalsky) JURISDICTION This Complaint and Notice of Hearing are prepared, and these proceedings are instituted, under A.R.S. § 32-1451 and 41-1092, et seq. PARTIES 1. The Board is the duly constituted authority for the regulation and control of the practice of allopathic medicine in the State of Arizona. 2. Respondent is the holder of license number 14879 for the practice of allopathic medicine in the State of Arizona.FACTUAL ALLEGATIONS 1. The Board initiated case number MD-16-0992A after receiving a complaint regarding Respondent's care and treatment of a 60 year-old female patient (‘VC") alleging failure to properly prescribe medications, resulting in the patient's death. 2. VC established care with Respondent on March 2, 2016. VC had a prior history of chronic pain managed on a stable opiate regimen of Morphine Sulfate Extended Release 30 mg. at bedtime and oxycodone 15mg as needed for breakthrough pain (2-3 daily with #75 dispensed for a one-month supply). 3. On VC's first visit with Respondent, he identified her chief complaint as; “Chronic Pain,” secondary to fibromyalgia and lumbar stenosis with “all over" pain and occasional sciatica in absence of a history of prior surgery. In addition, Respondent documented “severe stress” as a subjective complaint. VC's medication list at that time included Morphine 30mg at bedtime, oxycodone 15mg twice daily, tizanidine 4mg twice daily and Ibuprofen 800mg three times daily for her pain, in addition to prescriptions for Xanax (for anxiety) and amlodipine. VC was noted to have a history of hypothyroidism, and was non-compliant with her medication for that condition. 4. Respondent performed a physical examination of VC and documented tenderness over the lumbar spine (at L3/4) with normal reflexes and no focal neurologic deficits. Respondent's plan was to add amitriptyline, recommend water exercise, and to “consider methadone.” For her non-pain complaints, Respondent ordered lab studies and adjusted VC's blood pressure medications. VC's last prescription for morphine and oxycodone would have been due for refill on or about March 4, 2016: two days after this visit. 5. Respondent saw VC again on March 7, 2016. At that visit, VC reported improved pain, sleep, and that she was more relaxed with amitriptyline. The documented history of present illness noted that VC stated “I need morphine.” Her| 2medication list was recorded as unchanged from the prior visit. Respondent performed another physical examination and noted tenderness at 13/4. Respondent's) assessment included fibromyalgia and lumbar radiculopathy. Respondent documented a plan for VC's pain including the addition of methadone 10mg three times daily as} needed and “— MS or oxy.” 6. On March 12, 2016, VC was found non-responsive by her daughter. According to the autopsy report, the bottle of methadone had 73 tablets remaining of| the 90 dispensed for VC. The pathologist who performed the autopsy opined that the cause of death was a “mixed drug toxicity: methadone and amitriptyline” with a contributory cause of death including arteriosclerotic cardiovascular disease. 7. The standard of care required Respondent to utilize diagnostic studies, outside records and the pharmacy board report information when determining whether to initiate treatment with opiate therapy. Respondent deviated from this standard of| care by failing to utilize diagnostic studies, outside records or pharmacy board report information at the time the decision was made to treat VC with opiate therapy. 8. The standard of care requires an accurate calculation of starting dosage| when converting the patient's regimen from morphine/oxycodone to methadone, to start the patient at a recommended dose, and to obtain a baseline EKG to assess for| QT prolongation prior to starting the patient on methadone. Respondent deviated from this standard of care by converting VC's regimen from morphine/oxycodone to methadone without an accurate calculation of starting dose, by starting VC at a dose! that was well above what would have been recommended, and by failing to obtain a baseline EKG to assess for QT prolongation prior to starting methadone. 9. The potential for increased CNS depression, QT prolongation, and cardiac} arrhythmias existed with the combination of amitriptyline and methadone, particularly since these medications were new for VC.10. Actual harm occurred to the patient in that VC died with a cause of death related to her use of methadone and amitriptyline. 141. A physician is required to maintain adequate legible medical records containing, at a minimum, sufficient information to identify the patient, support the diagnosis, justify the treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient and provide sufficient information for| another practitioner to assume continuity of the patient's care at any point in the course of treatment. A.R.S. § 32-1401(2). Respondent's records were inadequate in that portions were illegible and the records were unclear as to the reason for such a drastic change from VC's previously stable medication regimen. The record is unclear] as to why Respondent prescribed methadone for VC. 12. During the Board’s consideration of the above captioned matter on May 4, 2017, Respondent stated that he did not believe that methadone was a factor in the patient's death. Board members commented that after hearing from Respondent, they were concerned that the Respondent did not appear to understand the ramifications of| his prescribing and the drug-to-drug interactions of the medications at issue in the case. One Board member was particularly concerned that Respondent did not address the findings on the autopsy for VC. 13. Based on the evidence presented, the Board voted unanimously to) summarily restrict Respondent's license, prohibiting him from prescribing controlled substances. 14. The Board initiated case number MD-17-1152 on November 21, 2017, after a Controlled Substances Prescription Monitoring Program (“CSPMP”) report indicated that Respondent wrote seven prescriptions to five patients (JC, EZ, SU, GG, and MM) in violation of his practice restriction.15. Board staff obtained hard-copy prescriptions for controlled substances for patients JC, EZ, SU, and GG, that Respondent wrote after the date of his practice restriction. Of not, the prescriptions for JC were phoned in. 16. In telephone calls with Board staff on November 29, 2017, and January 3, 2018, Respondent admitted to writing five of the prescriptions in violation of his practice restriction. Respondent stated that he could not remember if he gave permission to his office staff to phone in the other two prescriptions. ALLEGATIONS OF UNPROFESSIONAL CONDUCT 1. The Board possesses jurisdiction over the subject matter hereof and over Respondent. 2. The conduct and circumstances described above _ constitute] unprofessional conduct pursuant to A.R.S. § 32-1401(27)(e) (‘Failing or refusing to maintain adequate records on a patient.”). 3. The conduct and circumstances described above _ constitute! unprofessional conduct pursuant to A.R.S. § 32-1401(27)(q) (‘Any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.”). 4. The conduct and circumstances described above constitute unprofessional conduct pursuant to A.R.S. § 32-1401(27)(r) (“Violating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director under this chapter.”). 5. The conduct and circumstances described above show that the public| health, safety or welfare imperatively required emergency action. A.R.S. § 32-1451(D). NOTICE OF HEARING YOU ARE HEREBY NOTIFIED that a Formal Hearing on the Complaint concerning License No. 14879 will be held before Administrative Law Judge DianeMihalsky on February 21, 2018, commencing at 9:00 a.m. at the Office of Administrative Hearings located at 1740 W. Adams Street, Phoenix, Arizona and continuing on successive days until concluded concerning the matters set forth in this Complaint and Notice of Hearing, at which time and place, evidence, testimony and argument in support of the charge set forth in the Complaint will be presented. A ‘transcript of the hearing, together with a written report of the findings, conclusions and recommended decision of the Administrative Law Judge, will be submitted to the Board for its consideration and determination of this matter. If the Board finds that your conduct constitutes unprofessional conduct or that you are mentally or physically] unable to safely practice medicine, you shall be subject to censure, probation, ‘suspension or revocation of your license, or any combination thereof, for such time, including permanently, and under such conditions as the Board deems appropriate and just, as provided in A.R.S. § 32-1451. Within twenty (20) days of service of this Complaint and Notice of Hearing upon’ you, you are requested to file with the Board and the State’s attorney a written Answer| to the Complaint. Your Answer should contain specific admission or denials of the allegations of the Complaint, and may contain concise factual allegations, which you contend constitute a ground or grounds for defense. You are hereby notified that the Board may recover the costs of the formal hearin pursuant to A.R.S. § 32-1451(M) if you are found to have committed the violations allege herein. You are further notified that, in the event you are found to have engaged in unprofessional conduct as charged in this Complaint and Notice of Hearing, the Administrative’ Law Judge and the Board may consider any prior non-disciplinary and disciplinary action against your license in determining an appropriate sanction in this matter pursuant to A.R.S. § 32-1451(U)Pursuant to A.R.S. § 32-3206, you have the right to request a copy of the following information from the Board: 1. Any review conducted by an expert or consultant providing an evaluation of or opinion on the allegations. 2. Any records on the patient obtained by the board from other health care providers. 3. The results of any evaluations or tests of the health professional conducted at the board’s direction. 4. Any other factual information that the board will use in making its determination. Please be advised that if you obtain the above-referenced information from the’ board, you may not release it to any other person or entity or use it in any proceeding or action except the administrative proceeding or appeals related to the administrative proceeding. Violation of this restriction constitutes an act of unprofessional conduct under A.R.S. § 32-3206(B). Pursuant to A.R.S. § 41-1092.06, you have the right to request an informal settlement conference by filing a written request with the Board no later than twenty’ (20) days before the scheduled hearing. The conference will be held within fifteen (15) days after receipt of your request. Please note that you waive any right to object to the participation of the Board's representative in the final administrative decision of the matter if it is not settled at the conference. The Office of Administrative Hearings requires that the following notice be included in the Notice of Hearing: hearing wil be Conducted through the Office of Adrinistrative Hearings, an independent agency. Information regarding procedures, practice pointers, or the online filing of motions is available through the Office of Administrative Hearings website at www.azoah.com.DATED this _/ bo” say of January, 2018. ARIZONA MEDICAL BOARD oO By: WAS be Patricia E. McSorley Executive Director ORIGINAL of the foregoing filed this \(.** day of January, 2018 with: Arizona Medical Board 1740 W. Adams Street Phoenix, AZ 85007 EXECUTED COPY of the foregoing mailed by U.S. mail, e-mail and U.S. Certified Mail this |(s"*"day of January, 2018 to’ Gregory J Porter, M.D. (Address of Record) Respondent EXECUTED COPY of the foregoing Emailed this _) lo“ day of January, 2018 to Greg Hanchett, Director Office of Administrative Hearings oahnoticesofhearing@azoah.com COPIES of the foregoing Mailed/Emailed this_\(:"* day of January, 2018 to: Anne Froedge Assistant Attorney General SGDILES 15 S. 15" Avenue, 3° Floor South Phoenix, AZ 85007-2997 Ht wtCourtesy copy to: OTTMAR & ASSOC. Court Reporters Mose, \26te/ Arizona Medical Board Staff #6745171