BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

Transcription

1 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Petition for Penalty Relief: HARRY I. LIFSCHUTZ, M.D. Physician's and Surgeon's Certificate No. G Petitioner. Case No OAH No DECISION The attached Proposed Decision is hereby adopted as the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California. This Decision shall become effective at 5:00p.m. on April1, IT IS SO ORDERED March 2, MEDICAL BOARD OF CALIFORNIA

2 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Petition for Penalty Relief: Harry I. Lifschutz, M.D., Case No OAHNo PROPOSED DECISION Administrative Law Judge Vall era J. Johnson, State of California, Office of Administrative Hearings, heard this matter in San Diego, California on January 24, Harinder K. Kapur, Deputy Attorney General, represented the people of the State of California. John D. Harwell, Esq. represented Petitioner Harry I. Lifschutz, M.D., who was present during the hearing. The matter was submitted on January 24, FACTUAL FINDINGS 1. On July 25, 1980, the Medical Board of California (Medical Board issued Physician's and Surgeon's Certificate Number G (Certificate to Harry Irvin Lifschutz, M.D. (Petitioner. At all times relevant herein, said Certificate was in full force and effect and will expire on August 31, 2011, unless renewed. 2. The Medical Board's Executive Officer filed Accusation, case number , dated May 18, 2005, against Petitioner, alleging that, in his care and treatment of eight patients, Petitioner violated Business and Professions Code sections 2234, subdivision (b Gross Negligence, 2234, subdivision (c Repeated Negligent Acts, 2234, subdivision (d Incompetence, and 2266 Failure to Maintain Adequate and Accurate Records. 1

3 3. Effective May 25, 2007, the Medical Board adopted Stipulated Settlement and Disciplinary Order (Order. By the terms of the Order, the Medical Board revoked Petitioner's License, stayed revocation and placed it on probation for five years on terms and conditions; and, effective the same date, the Medical Board stayed revocation of Respondent's Certificate until June 4, On June 4, 2007, the Medical Board issued a Modified Decision that stated: "The parties agreed to modify the last paragraph of Condition 3 in the Disciplinary Order 1 to permit completion of that term within one hundred and twenty (120 days after the effective date ofthe decision in this matter, the attached Stipulated Agreement and Disciplinary Order, as so modified, is hereby adopted as the Decision and Order of the Division of Medical Quality of the Medical Board of California, Department of Consumer Affairs, State of California." Probation is scheduled to terminate on June 4, A person whose Physician's and Surgeon's Certificate has been placed on probation may petition the Medical Board for termination of probation not less than two years from the effective date of the decision ordering the disciplinary action if the probationary period exceeds three years. The Petition shall state any facts required by the Medical Board and shall be accompanied by at least two verified recommendations from physicians and surgeons licensed by the Medical Board who have personal knowledge of the activities of Petitioner since the disciplinary penalty was imposed. The Medical Board's panel or administrative law judge hearing the Petition may consider all activities of the Petitioner since the disciplinary action was taken, the offense for which Petitioner was disciplined, Petitioner's activities during the time the Physician's and Surgeon's Certificate was in good standing, Petitioner's rehabilitative efforts, general reputation for truth and professional ability Petitioner filed a Petition for Penalty Relief (Petition, dated January 11, 2010, in which he requested early termination of probation, more than two years after the effective date of discipline of his Certificate. His Petition packet included: Condition 3 in the Disciplinary Order states: "CLINICAL TRAINING PROGRAM Within five (5 calendar days of his signing this Stipulated Settlement and Disciplinary Order, respondent shall enroll in a clinical training or education program equivalent to the Physician Assessment and Clinical Education (PACE Program offered at the University of California- San Diego School of Medicine ("Program"." 2 Business and Professions Code section

4 Petition for Penalty Relief Narrative statement from Petitioner Letter of recommendation from Mark Smith, M.D., dated January 6, 2010 Letter of recommendation from Richard Lynch, M.D., dated December 30, 2009 Copies of prior administrative and disciplinary action 7. The Petition is properly before the Medical Board and includes the requisite number of letters of recommendation from Medical Board licensees. 8. Petitioner completed his undergraduate education at Massachusetts Institute of Technology and attended McGill University Medical School. He completed the first year of his surgical training at University of California- San Diego (UCSD and the balance at the University of California- Irvine (UCI. From 1984 to 1985, he completed a fellowship in thoracic and vascular surgery at the University of British Columbia. He practiced in Canada for the next 18 months. In 1986 Petitioner moved to Southern California and practiced in Apple Valley, Lake Arrowhead and Big Bear, specializing in general, vascular and thoracic surgery. Between 1988 and 2001 he began working with Dese1i Valley Medical Group; thereafter when he went into private practice in Indio, California. Petitioner testified that at the time that he provided care and treatment for most of the patients identified in the Accusation, he was on staff at Desert Valley Hospital, a small community hospital. Now, he practices at Eisenhower Medical Center and Robert F. Kennedy Memorial Hospital. Petitioner is board certified in surgery. 9. In his Petition, Petitioner stated that he believes that the Medical Board's actions, the probation, especially the assistance provided by his probation monitor, and his determination to be a better doctor have resulted in improved clinical practice, documentation and better patient care. He has complied with the terms and conditions of probation. Pursuant to the terms of probation, Petitioner was required to obtain a practice monitor. He selected and the Medical Board approved Dr. Smith. For 12 years prior to this relationship, Petitioner and Dr. Smith were surgical colleagues in the same geographic area. They were never associates. In March 2007, Dr. Smith closed his practice in the Coachella Valley and began 3

5 consulting work in "peer review, credentialing, disruptive physicians, ED 3 call as well as general education programs in all these areas." His clinical work has continued as Assistant Clinical Professor of Surgery at the UCI Medical Center in the vascular surgery section. In July 2007 Dr. Smith began serving as Petitioner's practice monitor. During that time, he met with Petitioner at least monthly but communicated more frequently via or telephone. In addition to office inspections and chart reviews, they spent a lot of time discussing his surgical cases at both hospitals, focusing on the difficult and problematic cases, prospectively about various cases and clinical situations. Respondent considers the relationship to be a mentor-mentee. He has gained a lot of insight from Dr. Smith and intends to continue the relationship. During the probationary period, Petitioner completed the evaluation and remedial process through the PACE program at UCSD. Petitioner acknowledged that, prior to the filing of the Accusation, his recordkeeping was inadequate. He testified that there were "holes in my thought processes that I could put together, but not being used to having other people reading my charts, the charts probably didn't reflect my thought processes very well." While on probation, he took the recordkeeping course and has discussed his medical records with his practice monitor. As a result, his charting has improved. Now, Petitioner dictates his notes as if someone from the Medical Board or another colleague will review his notes. He testified that, in retrospect, his patient case selection was probably too aggressive for the hospital and the community; at that time in his career, he was one of the few trained surgeons in the community; so, in his opinion, he was tasked at looking at some ofthe more complex surgical procedures; in retrospect, he should have transferred the patients; he does not "take on these level of responsibilities any more." Prior to the filing of the Accusation, he moved to a larger community. There are more surgeons in larger hospitals, with more access to other surgeons to whom he could refer. He no longer accepts patients that he believes exceed his abilities or the resources of the hospital. Dr. Smith's opinion supports Petitioner's opinion. In his letter, Dr. Smith stated that Petitioner practices in a conservative safe manner of the highest degree. His choices of deciding to perform surgery or not are appropriate and are indicative of good surgical judgment. His methods of performing surgery are mainstream and conservative and, therefore, safe. His postoperative care and results have been excellent. Dr. Smith based these opinions on the two 3 No evidence was offered to establish what "ED" means. 4

6 and one-half years of clinical work that he reviewed with Petitioner. Dr. Smith recommended that the Medical Board terminate probation and allow Petitioner to resume practice without restriction. He submitted a letter in support of the Petition for Penalty Relief. Petitioner completed more than the required continuing medical education (CME. He was required to complete 40 hours of continuing education but completed 110 hours that included the PACE Program ( 40 hours of general surgery, 40 hours of vascular surgery and 30 hours ofthe University of California Los Angeles MOORE Course (an update in vascular surgery. Because the MOORE Course has been updated, he has taken it again; in the past he has taken a "hodge podge of CME;" now he focuses on vascular surgery because surgery has not changed significantly in the last 10 years but vascular surgery has. 10. Respondent requests that probation be terminated because it is no longer necessary to protect the public and is now unduly harmful to his practice. Within a few months of the filing of the Accusation, Petitioner was de listed from the local IPA and PPO contracts and that has continued. In November 2010 Blue Cross did not want to renew him, despite his 30-year relationship with them. Further, in 1985, he was certified by the American Board of Surgery (Board and was recertified in 1995 and again in Two years ago, he received a letter from the Board seeking to delist him because he holds a restricted license. Petitioner has appealed but has received no response. LEGAL CONCLUSIONS The Petition for Penalty Relief (Early Termination of Probation and supporting documents, the criteria set forth in Business and Professions Code section 2307 and the testimonial and documentary evidence have been considered. Given the foregoing and the facts (Findings 1, 2, 3, 4, 5, 6, 7, 8 and 9, it was established that Petitioner is rehabilitated. It would not be contrary to the public interest to terminate probation and to grant him an unrestricted Certificate to practice medicine at this time. 5

7 ORDER The Petition for Penalty Relief (Early Termination of Probation of Harry I. Lifschutz, M.D. is granted. DATED: hlruao 1, Jo 11 Administrative Law Judge Office of Administrative Hearings 6