BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA. BENJAMIN GOULD COX, M.D. ) Case No DECISION

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1 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Petition for Penalty Relief of: BENJAMIN GOULD COX, M.D. Case No Physician's and Surgeon's Certificate No. G6433 Respondent 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 5:00 p.m. on September 23, IT IS SO ORDERED August 24, 2016 MEDICAL BOARD OF CALIFORNIA By: ~~~~--~~~... ~~~~- Jamie Wri Panel A

2 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT CONSUMER AFFAIRS ST A TE OF CALIFORNIA In the Matter of the Petition Penalty Relief of: BENJAMIN GOULD COX, JR., M.D. Case No OAH No Physician's and Surgeon's Certificate No. G6433, Petitioner. PROPOSED DECISION Susan J. Boyle, Administrative Law Judge, Office of Administrative Hearings, State of California, heard this matter in San Diego, California, on June 28, Courtney E. Pilchman, Attorney at Law, represented petitioner Benjamin Gould Cox, Jr., M.D., \:vho was present throughout the proceeding. Jason Ahn, Deputy Attorney General, Department of Justice, State of California, represented the Office of the Attorney General. The matter was submitted on June 28, SUMMARY On October 25, 1960, the Medical Board of California issued Physician's and Surgeon's Certificate No. G 6433 to petitioner Benjamin Gould Cox, Jr., M.D. On June 5, 2013, following a stipulated settlement, the Medical Board revoked Dr. Cox's certificate for conduct arising out his treatment of his stepdaughter, stayed the revocation, and placed Dr. Cox on five years' probation. Dr. Cox seeks the early termination of probation. He has been humbled by the disciplinary process. He takes full responsibility for his unprofessional conduct. He has implemented many positive changes in his medical practice to enhance patient care. The

3 evidence of rehabilitation is clear and convincing, and it supports the early tennination of probation. Petitioner's Background FACTUAL FINDINGS 1. Petitioner Benjamin Gould Cox, Jr., M.D., was born in He received his medical degree from New York Medical College in 1959 and was licensed as a physician in California in He completed a rotating internship in 1960, a surgical residency in 1961 and a neurosurgical residency in 1965; all at Huntington Memorial Hospital in Pasadena, California. 2. Dr. Cox has continually practiced medicine from 1965 to the present. He was board certified by the American Board of Forensic Examiners in 1994 and the American Board of Neurological and Orthopaedic Medicine and Surgery in 1988, which recertified him in Dr. Cox was a Qualified Medical Examiner for the Industrial Medical Council. He specializes in the evaluation and treatment of workers' compensation patients. He has no prior disciplinary history except the disciplinary actions taken by the board in Discipline 3. On August 1, 2011, Accusation No was filed against petlt10ner. The Accusation sought the revocation of petitioner's medical license for gross negligence, repeated negligent acts, prescribing dangerous drugs without an appropriate examination, failure to maintain adequate medical records and general unprofessional. All of the causes for discipline arose from Dr. Cox's evaluation and treatment of his stepdaughter from 2005 through As detailed in the accusation, Dr. Cox first examined his then 36-year old stepdaughter in Al;gust of 2005 in a bedroom in his and his wife's home. His wife is his stepdaughter's mother. Following his examination, he diagnosed bronchitis and sinusitis and prescribed medication. Dr. Cox examined his stepdaughter eleven more times between August 2005 and November 2009 and diagnosed a variety of ailments including pharyngitis, back pain, insomnia, bronchitis, stress, anxiety and groin pain. He prescribed medications, including antibiotics, dangerous drugs and controlled substances after each examination and between some examinations. Dr. Cox's examinations of his stepdaughter did not comply with the standard of care requiring a thorough examination. He failed to document that he performed a thorough history, physical examination or evaluation each time he examined his stepdaughter. He failed to order diagnostic tests, and he did not perform appropriate followup care. He also failed to provide counseling and explanation to his stepdaughter about the 2

4 potential side effects of the medications he prescribed. Dr. Cox further failed to maintain adequate and accurate patient records relating to his stepdaughter. 4. On January 28, 2013, Dr. Cox signed a Stipulated Settlement and Disciplinary Order (Stipulated Order in which he admitted the allegations in the Accusation and agreed that his license would be revoked, the revocation would be stayed, and he would be placed on five years' probation. The Stipulated Order provided that all allegations in the Accusation would be deemed true and correct if petitioner petitioned for early termination or modification of probation. The board adopted the Stipulated Order as its decision. The decision revoked Dr. Cox's certificate, stayed the revocation, and placed Dr. Cox on 5 years' probation. Among other matters, Dr. Cox was required to complete PACE record keeping and prescribing practices courses, and take and complete a professionalism/ethics program. Dr. Cox was forbidden to "order, prescribe, dispense, administer, furnish or possess any controlled substances," to order, recommend or approve a person for the possession or cultivation of marijuana, or to supervise physician assistants. Dr. Cox's medical practice was limited to "practice as a qualified medical examiner only[,] which shall consist solely of examining patients, documents and writing reports." He was not permitted to provide "direct patient care or treatment." Dr. Cox was also required to file quarterly declarations confirming his compliance with the terms of probation, pay probation monitoring costs, and obey all laws. The Decision became effective on June 5, Probation was scheduled to terminate on June 4, The Petitionfor Penalty Relief DR. Cox's LETTER IN SUPPORT OF Hrs PETITION 5. On June 21, 2015, Dr. Cox signed a petition for penalty relief in which he sought the termination of probation and full reinstatement of his medical license. In a letter attached tc the petitic~, Dr. Cox admitted that the accusations against his license "are all correct, and I am ashamed and regret having committed the acts accused of." He noted that he had complied with all of the tenns of probation and had taken steps to avoid a "recurrence of my prior conduct." Dr. Cox stated he had advised all of his family and friends that he ''will not provide them with medical care, treatment advice, or medication prescriptions, but instead, I will refer them to appropriate medical doctors or facilities." He said he meets "monthly with the office administrator for peer monitoring, and to address any staffs or patient's concerns." He represented he uses an examination check-off list to make sure he performs a "complete general medical exam" and maintains accurate and adequate records. He stated the courses he took during probation provided him with additional tools to "correct and prevent future transgressions." Dr. Cox detailed his actions that led to the accusation filed against him. He acknowledged he failed to obtain a thorough history and perform a thorough examination 3

5 each time he examined his stepdaughter at his home; to counsel her about the effects and side effects of medications he prescribed; to schedule follow-ups; and to refer her to a psychiatrist and/or pain management specialist'' He admitted he was "at fault in seeing her in the first place," and that he should have either made her a "full patient'' and fulfilled his responsibilities as her physician or not seen her at all. He understood and acknowledged that he prescribed Vicodin, Xanax and Ambien in excessive amounts without proper counseling or follow-up. Dr. Cox stated that his wife, his stepdaughter's mother, was always in the bedroom when he examined his stepdaughter. He provided treatment for his stepdaughter because his wife was concerned about her. 6. Dr. Cox is requesting early termination because the effects of the disciplinary action have been devastating on his practice. Dr. Cox stated that the restriction on his ability to practice except as a qualified medical examiner (QME caused him to be unable to be a QME. He stated that one requirement of workers' compensation companies is that a QME's practice must consist of at least 25 percent private patient evaluations and treatments. Because he could not treat private patients, he was dropped as a QME from worker's compensation panels. He also stated that attorneys and doctor and chiropractic groups did not want to hire him since he could not order tests, treat patients or see patients in treatment follow-ups. Dr. Cox has been hired by a psychologist to perform QME evaluations for workers' compensation applicants. From this employment, he earned $2,500 in 2013; $12,000 in 2014 and $3,372 in In his letter, Dr. Cox stated he lives very frugally, and, because of the financial impact on his practice, he has had to take money from his retirement savings to pay his bills. 7. Documentary evidence was attached to the petition. It included Dr. Cox's curriculum vitae; certificates of completion from three PACE programs - Physician Prescribing Course (24 credits, Medical Record Keeping (l 7 credits and Professional Bc'Jndarics and E~hics ( 12 crejits ; Uni ~rsity of California, Irvine School of Medicim: Medical Ethics and Professionalism course (22 credits; and eleven programs sponsored by CME Resources including one on Medical Ethics for Physicians (5 credits. A large majority of the ratings Dr. Cox received by PACE auditors examining his medical charts were in the superior category. LETTERS OF REFERENCE 8. Several letters in support of Dr. Cox were attached to the petition. A Paul R. Reiman, M.D., wrote a letter dated May 6, For approximately five years, Dr. Cox subleased space in an office Dr. Reiman co-shared with another physician, Dr. Christopher Alexander. Dr. Cox used the leased space to evaluate private and worker's compensation patients. Occasionally, Dr. Reiman asked Dr. Cox to 4

6 evaluate Dr. Reiman's patient for a second opinion or for "permanent and stationary" workers' compensation status. Dr. Reiman described Dr. Cox as "a gentleman and I observed no interoffice personnel or patient-related behavioral or ethical issues." Dr. Reiman was "unaware of any medication prescription problems or record keeping problems." Dr. Reiman is familiar with Dr. Cox's disciplinary history. In August 2011, Dr. Reiman read local newspaper accounts of the accusation filed against Dr. Cox. Dr. Reiman and Dr. Alexander discussed the ramifications of the accusation with Dr. Cox, and Dr. Cox ceased practicing medicine in their offices in October Dr. Cox provided Dr. Reiman a copy of the accusation and the stipulated decision and order which Dr. Reiman read. Dr. Reiman discussed the accusation and the board's decision with Dr. Cox. Dr. Cox admitted the allegations to Dr. Reiman and expressed his "deep regret in having committed the acts and recognizes this is outside the realms of the standards of medical practice." B. David Schwartz, M.D., who is board certified in Family Medicine and Geriatrics, authored a letter dated May 26, He has been Dr. Cox's physician ofrecord since August He is aware of the accusations made against Dr. Cox. He stated, to the best of his knowledge, Dr. Cox's "personal and professional behavior was always proper and correct, without any rumors of personal or patient ethical issues." Dr. Schwartz noted that Dr. Cox "shared with [him] his shame in having committed the acts he is accused of doing." Dr. Schwartz opined that Dr. Cox "is quite capable of correcting his medical mistakes and can be trusted to maintain the highest standards that are expected of a practicing physician." C. Curtis W. Montgomery, D.C.. QME. who is a Doctor of Chiropractic, authored a letter dated June 3, Dr. Cox has worked in Dr. Montgomery's office since October Dr. Montgomery is aware of Dr. Cox's disciplinary history and has read the board's accusation. Dr. Montgomery stated, ''I can attest to the fact that at the present time [Dr. Cox] performs a complete medical examination, including vital signs, on each patient, in addi:i~:1 to a thr;:.ugh consulta6ve neu:-obgica! and orthopedic examination." Dr. Montgomery confirmed that Dr. Cox did not treat patients or prescribe medications. He believed, to the best of his knowledge, that Dr. Cox's "personal and professional behavior has always been proper and correct." D. John Workman, Ph.D., administrator of ASAP Family Therapy, Inc. (ASAP, wrote a letter dated May 26, Dr. Workman confirmed that Dr. Cox was employed by ASAP as of July 2013 as an independent contractor to evaluate patients for potential neurological problems. Dr. Cox gave Dr. Workman a copy of the board's decision and order before he was employed by ASAP. When hired, Dr. Cox was asked to design a history and physical examination template for neurological problems patients may experience. Dr. Workman described Dr. Cox's work on the template as "exemplary." 5

7 Dr. Cox also evaluated patients. Dr. \Vorkman described Dr. Cox's evaluations and reports as being "at the highest level of excellence, insightful, comprehensive, as well as timely." He stated that "referring physicians have benefitted greatly from Dr. Cox's level of expertise in evaluating QME patients in terms of neurological impairment." Dr. Workman said Dr. Cox expressed his regret for the acts he committed. Dr. Workman believed that Dr. Cox "will never again treat family members who have medical problems." The Board's Petition for Penalty Relief Report 9. Sarah Peters, a Special Investigator for the board's enforcement program reviewed Dr. Cox's petition. She intervie\ved Dr. Schwartz and Dr. Reiman. Both doctors confinned the statements made in their letters attached to the petition and expressed a belief that Dr. Cox's probation should be terminated early. Compliance with Probation Requirements PAYMENT OF PROBATION COSTS 10. Dr. Cox submitted quarterly reports as required by the terms of his probation. At the time of the administrative hearing, Dr. Cox was in compliance with all terms and conditions of probation. 11. In Dr. Cox's quarterly report for April to June 2013, Dr. Cox noted he had not paid probation fees because he had not received a bill for those costs. In each quarterly report that followed, up to and including those for the first quarter of 2015, Dr. Cox truthfully responded "No." to the question that asked if he was current with his probation costs. In an addendum to each quarterly report before January 2015, Dr. Cox noted that he had not received a bill advising him what costs he owed. He testified that his probation monitor told him to wait until he received a bill before sending any money for probation ;;;;:-::;ts. In his quarter!~: rzp:~:-'.: for tr..:: first qtw.tter of 2015, Dr. Cox ;;tated, "Bill received. Plan to borrow the money the end of May to pay in full." In his report for the second quarter of 2015, Dr. Cox marked "Yes" to the question of whether he was current with probation costs. This related to the costs up to Dr. Cox's probation costs for 2015 became due at the end of In his last quarterly report for 2015, Dr. Cox again reported that he was not current with probation costs. He explained that he intended to sell some stocks to make the payment, but the stocks decreased in value so he was waiting for them to go up some before he sold them for the money to pay his probation costs. In his first quarter report for 2016, Dr. Cox reported he was current with his probation costs. 6

8 CML LAWSUIT FILED AGAINST DR. Cox 13. In his first quarter report for 2016, Dr. Cox advised the board that he had been named in a civil suit. He wrote a note explaining that he and another doctor entered into an agreement to split earnings. After the agreement, a law came into effect that forfeited any Workers' Compensation lien for which a$ loo fee had not been paid. Dr. Cox and his partner were unable to pay the fees on liens they held and the liens were forfeited. Dr. Cox's partner sued him for one-half of the unpaid, and now forfeited, liens. Dr. Cox's Testimony and Other Evidence 14. Dr. Cox confirmed the information contained in the petition for the early termination of his probation, including that he had complied with all the terms and conditions of his probation. He offered three letters he used to apply for part time employment evaluating medical disability cases. He stated he sent similar letters to all workers' compensation adjusters in Riverside County using the same format but was unable to obtain employment because of the restrictions imposed by the terms of his probation. 15. As he expressed in the letter attached to his application, Dr. Cox admitted all of the allegations in the accusation and expressed his remorse for his actions. He said the ethics course allowed him to analyze himself and reflect on why he did what he did. He said that he was motivated to avoid conflict with his wife who wanted him to help her daughter. He said he became lazy about documenting the care and treatment he was providing to his stepdaughter because evaluating her "interrupted his \veekend with problems that did not seem significant to [him]." His conduct with his stepdaughter was a significant departure from the thorough way he evaluated and treated patients he saw in his office. He confirmed the steps he had taken to make sure he never again is in a position to receive discipline from the board. 16. As a result of Dr. Cox being on probation, he is unable to provide the range of services that employers expect him to provide and he has experienced a substantial loss of ; evenue. D,-. C:o~~ hq:; h~d to sell retirement investment:; and use his retirement savings to pay his bills; he lives very frugally. 17. Dr. Cox provided compelling testimony. He described the misconduct that gave rise to the disciplinary action in a straightforward manner. He did not minimize his wrongdoing. He took full responsibility and he did not blame others for his mistakes. He acknowledged his professional shortcomings and expressed remorse. Dr. Cox has instituted new policies and procedures that will insure he does not repeat any of his misconduct. The Attorney General Ofizce 's Recommendation 18. The Attorney General's Office agreed that Dr. Cox was "learning and growing" but argued against granting of the petition for early termination of probation. 7

9 Determination 19. Dr. Cox had the heavy burden of proving by clear and convincing evidence that he has rehabilitated himself, that it would be safe for him to return to the unrestricted practice of medicine, and that good cause exists to tenninate his probation. The rehabilitation evidence Dr. Cox presented must be measured against the nature and extent of the wrongdoing that gave rise to the discipline. The misconduct at issue was over a period of five years, but was limited to treatment he provided one family member in his home. Nonetheless, Dr. Cox's conduct raised concerns about Dr. Cox's prescribing and medical record keeping practices and ethics. Dr. Cox admitted the impropriety of his actions; he did not rationalize his misconduct; and he did not blame others. He has done all that was asked of him on probation. He has the respect and support of doctors and others in the medical community who have worked with him. His positive attitude and response to being on probation support the conclusion that he will conform his conduct to the highest professional standards in the future and continue his efforts to provide high quality medical services to patients. The evidence of Dr. Cox's rehabilitation was clear and convincing, and it supports the termination of probation. Burden and Standard of Proof LEGAL CONCLUSIONS I. In a proceeding for the restoration of a license, the burden at all times rests on the petitioner to prove that he has rehabilitated himself and that he is entitled to have his license restored. (Flanzer v. Board of Dental Examiners ( Cal.App.3d 1392, A person seeking reinstatement must present strong proof of rehabilitation, and the showing ofrehabilitation must be sufficient to overcome the former adverse determination. The~ : <;:-:d:.:d of i-::: :::;0f is c,;.~<j.r and cc.nvin:.:::ag evider.:.::e. (Housman v. Board of.'.;'.~dfcc;} Examiners ( Cal.App.2d, 308, Statutory and Regulatory Authority 2. Business and Professions Code section 2307 provides in part: (a A person... whose certificate has been... placed on probation, may petition the board for... modification of penalty, including modification or tennination of probation. (b The person may file the petition after a period of not less than the following minimum periods have elapsed from the 8

10 effective date of... the decision ordering that disciplinary action: ( 1 At least three years for reinstatement of a license smtendered or revoked for unprofessional conduct, except that the board may, for good cause shown, specify in a revocation order that a petition for reinstatement may be filed after two years. (2 At least two years for early termination of probation of three years or more. (if]... [~] ( c The petition shall state any facts as may be required by the board. The petition shall be accompanied by at least two verified recommendations from physicians and surgeons licensed in any state who have personal knowledge of the activities of the petitioner since the disciplinary penalty was imposed. (d... The board may assign the petition to an administrative law judge designated in Section of the Government Code. After a hearing on the petition, the administrative law judge shall provide a proposed decision to the board... which shall be acted upon in accordance with Section (e The... administrative law judge hearing the petition may consider all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the certificate was in gc~:j standing, and the p,,;titioner's rehabilitative efforts, general reputation for truth, and professional ability California Code of Regulations, title 16, section 1359 provides: (a A petition... for reinstatement of a revoked certificate shall be filed on a form provided by the division. (b Consideration shall be given to a petition for reinstatement oflicense... only when a formal request for such has been filed in the division's office in Sacramento at least thirty (30 days before a regular meeting of the division or appropriate medical quality review panel. 9

11 Rehabilitation 4. Rehabilitation is a state of mind, and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved reformation and regeneration. (Pacheco v. State Bar ( Cal.3d 1041, Fully acknowledging the wrongfulness of past actions is an essential step towards rehabilitation. (Seide v. Committee (dbar Examiners ( CaL3d 933, 940. Remorse does not demonstrate rehabilitation. A truer indication of rehabilitation is presented when an individual demonstrates by sustained conduct over an extended period of time that he is once again fit to practice. (In re Menna ( Cal.4th 975, 991. Cause Exists to Grant the Petition 5. Cause exists to grant the petition for termination of probation. Dr. Cox established by clear and convincing evidence that he has rehabilitated himself to the extent that it would be safe for him to return to the unrestricted practice of medicine. He admitted that he engaged in unprofessional conduct and expressed remorse. He advised friends and colleagues of his misconduct. He has done all that has been asked of him so far on probation, and the result has been beneficial. Continuing probation will not result in further rehabilitation. Dr. Cox has rehabilitated himself to the extent that probation should be terminated. ORDER The petition for penalty relief filed by Benjamin Gould Cox, M.D., seeking to terminate the existing disciplinary order imposed upon Physician's and Surgeon's Certificate No. G 6433 is granted. The period of probation imposed in this matter is terminated provided all costs and expenses related to the probation have been paid. DATED: July 25, 2016 SUSAN J. BOYLE Administrative Law Judge Office of Administrative Hearings 10