BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA DECISION AND ORDER

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1 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: ) ) HOWARD LEE SOFEN, M.D. ) Case No ) Physician's and Surgeon's ) Certificate No. G ) ) Respondent. ) ) DECISION AND ORDER The attached Stipulated Settlement and Disciplinary Order is hereby adopted by the Medical Board of California, Department of Consumer Affairs, State of California, as its Decision in this matter. This Decision shall become effective at 5:00 p.m. on April 8, IT IS SO ORDERED March 9, MEDICAL BOARD OF CALIFORNIA By: Howard Krauss, M.D., Chair Panel B

2 KAMALA D. HARRIS Attorney General of California 2 ROBERT MCKIM BELL Supervising Deputy Attorney General 3 COLLEEN M. MCGURRIN Deputy Attorney General 4 State Bar Number South Spring Street, Suite Los Angeles, California Telephone: (213) Facsimile: (213) Attorneysfor Complainant 7 BEFORE THE 8 MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS 9 STATE OF CALIFORNIA I In the Matter of the Accusation Against: HOWARD SOFEN, M.D South Sepulveda Boulevard, Suite 114 Los Angeles, CA Physician's and Surgeon's Certificate Number G47799 Respondent. Case No OAH No STIPULATED SETTLEMENT AND DISCIPLINARY ORDER IT IS HEREBY STIPULATED AND AGREED by and between the parties to the aboveentitled proceedings that the following matters are true: PARTIES 1. Kimberly Kirchmeyer ("Complainant") is the Executive Director of the Medical 20 Board of California. She brought this action solely in her official capacity and is represented in 21 this matter by Kamala D. Harris, Attorney General of the State of California, by Colleen M. 22 McGurrin, Deputy Attorney General Respondent HOWARD SOFEN, M.D. ("Respondent") is represented in this 24 proceeding by attorney Gary Wittenberg, Esq., whose address is: Baranov & Wittenberg, LLP, Avenue ofthe Stars, Suite 1750, Los Angeles, California On or about June 28, 1982, the Medical Board of California issued Physician's and 27 Surgeon's Certificate Number G47799 to Respondent. Said Certificate was in full force and 28 effect at all times relevant to the charges brought in Accusation No and will STIPULATED SETTLEMENT ( )

3 expire on August 31, 2017, unless renewed JURISDICTION 4. Accusation No was filed before the Medical Board of California (Board), Department of Consumer Affairs, and is currently pending against Respondent. The Accusation and all other statutorily required documents were properly served on Respondent on June 29, Respondent timely filed his Notice of Defense contesting the Accusation. 5. A copy of Accusation No is attached as exhibit A and incorporated herein by reference. ADVISEMENT AND WAIVERS 6. Respondent has carefully read, fully discussed with counsel, and understands the charges and allegations in Accusation No Respondent has also carefully read, fully discussed with counsel, and understands the effects of this Stipulated Settlement and Disciplinary Order. 7. Respondent is fully aware of his legal rights in this matter, including the right to a hearing on the charges and allegations in the Accusation; the right to be represented by counsel at his own expense; the right to confront and cross-examine the witnesses against him; the right to present evidence and to testify on his own behalf; the right to the issuance of subpoenas to compel the attendance of witnesses and the production of documents; the right to reconsideration and court review of an adverse decision; and all other rights accorded by the California Administrative Procedure Act and other applicable laws. 8. Respondent freely, voluntarily, knowingly, and intelligently waives and gives up each and every right set forth above. CULPABILITY 9. Respondent understands and agrees that the charges and allegations in Accusation No , if proven at a hearing, constitute cause for imposing discipline upon his Physician's and Surgeon's Certificate. 10. For the purpose of resolving the Accusation without the expense and uncertainty of further proceedings, Respondent agrees that, at an administrative hearing, Complainant could 2 STIPULATED SETTLEMENT ( )

4 establish a prima facie factual basis for the charges and allegations contained in Accusation No , and that Respondent hereby gives up his right to contest those charges. 3 II. Respondent agrees that if he ever petitions for early termination or modification of 4 probation, or if the Board ever petitions for revocation of probation, all of the charges and 5 allegations contained in Accusation No shall be deemed true, correct and fully 6 admitted by Respondent for purposes of that proceeding or any other licensing proceeding 7 involving Respondent in the State of California Respondent agrees that his Physician's and Surgeon's Certificate is subject to 9 discipline and he agrees to be bound by the Board's probationary terms and conditions as set forth 10 in the Disciplinary Order below. II CIRCUMSTANCES IN MITIGATION Respondent has practiced for 34 years and has never had any prior disciplinary action. 13 He has been cooperative in the process. 14 CONTINGENCY This stipulation shall be subject to approval by the Medical Board of California. 16 Respondent understands and agrees that counsel for Complainant and the staff of the Medical 17 Board of California may communicate directly with the Board regarding this stipulation and 18 settlement, without notice to or participation by Respondent or his counsel. By signing the 19 stipulation, Respondent understands and agrees that he may not withdraw his agreement or seek 20 to rescind the stipulation prior to the time the Board considers and acts upon it. If the Board fails 21 to adopt this stipulation as its Decision and Order, the Stipulated Settlement and Disciplinary 22 Order shall be of no force or effect, except for this paragraph, it shall be inadmissible in any legal 23 action between the parties, and the Board shall not be disqualified from further action by having 24 considered this matter The parties understand and agree that Portable Document Format (PDF) and facsimile 26 copies of this Stipulated Settlement and Disciplinary Order, including PDF and facsimile 27 signatures thereto, shall have the same force and effect as the originals. 28 I I I 3 STIPULATED SETTLEMENT ( )

5 16. In consideration of the foregoing admissions and stipulations, the parties agree that 2 the Board may, without further notice or formal proceeding, issue and enter the following 3 Disciplinary Order: 4 DISCIPLINARY ORDER 5 IT IS HEREBY ORDERED that Physician's and Surgeon's Certificate No. G47799 issued 6 to Respondent HOWARD SOFEN, M.D. is revoked. However, the revocation is stayed and 7 Respondent is placed on probation for thirty-five (35) months on the following terms and 8 conditions MEDICAL RECORD KEEPING COURSE. Within 60 calendar days of the effective 10 date of this Decision, Respondent shall enroll in a course in medical record keeping equivalent to 11 the Medical Record Keeping Course offered by the Physician Assessment and Clinical Education 12 Program, University of California, San Diego School of Medicine (Program), approved in 13 advance by the Board or its designee. Respondent shall provide the program with any information 14 and documents that the Program may deem pertinent. Respondent shall participate in and 15 successfully complete the classroom component of the course not later than six (6) months after 16 Respondent's initial enrollment. Respondent shall successfully complete any other component of 17 the course within one ( 1) year of enrollment. The medical record keeping course shall be at 18 Respondent's expense and shall be in addition to the Continuing Medical Education (CME) 19 requirements for renewal of licensure. 20 A medical record keeping course taken after the acts that gave rise to the charges in the 21 Accusation, but prior to the effective date of the Decision will be accepted towards the fulfillment 22 ofthis condition if the course would have been approved by the Board or its designee had the 23 course been taken after the effective date of this Decision. 24 Respondent shall submit a certification of successful completion to the Board or its 25 designee not later than 15 calendar days after successfully completing the course, or not later than calendar days after the effective date of the Decision, whichever is later PROFESSIONALISM PROGRAM (ETHICS COURSE). Within 60 calendar days of 28 the effective date of this Decision, Respondent shall enroll in a professionalism program, that 4 STIPULATED SETTLEMENT ( )

6 1 meets the requirements of Title 16, California Code of Regulations (CCR) section Respondent shall participate in and successfully complete that program. Respondent shall 3 provide any information and documents that the program may deem pertinent. Respondent shall 4 successfully complete the classroom component of the program not later than six (6) months after 5 Respondent's initial enrollment, and the longitudinal component of the program not later than the 6 time specified by the program, but no later than one (1) year after attending the classroom 7 component. The professionalism program shall be at Respondent's expense and shall be in 8 addition to the Continuing Medical Education (CME) requirements for renewal of licensure. 9 A professionalism program taken after the acts that gave rise to the charges in the 10 Accusation, but prior to the effective date of the Decision will be accepted towards the fulfillment 11 of this condition if the program would have been approved by the Board or its designee had the 12 program been taken after the effective date of this Decision. 13 Respondent shall submit a certification of successful completion to the Board or its 14 designee not later than 15 calendar days after successfully completing the program or not later 15 than 15 calendar days after the effective date of the Decision, whichever is later PROFESSIONAL BOUNDARIES PROGRAM. Within 60 calendar days from the 17 effective date of this Decision, Respondent shall enroll in a professional boundaries program 18 equivalent to the Professional Boundaries Program offered by the Physician Assessment and 19 Clinical Education Program at the University of California, San Diego School of Medicine 20 ("Program"). Respondent, at the Program's discretion, shall undergo and complete the Program's 21 assessment of Respondent's competency, mental health and/or neuropsychological performance, 22 and at minimum, a 24 hour program of interactive education and training in the area of 23 boundaries, which takes into account data obtained from the assessment and from the Decision(s), 24 Accusation(s) and any other information that the Board or its designee deems relevant. The 25 Program shall evaluate Respondent at the end of the training and the Program shall provide any 26 data from the assessment and training as well as the results of the evaluation to the Board or its 27 designee. 28 Failure to complete the entire Program not later than six (6) months after Respondent's 5 STIPULATED SETTLEMENT ( )

7 1 initial enrollment shall constitute a violation of probation unless the Board or its designee agrees 2 in writing to a later time for completion. Based on Respondent's performance in and evaluations 3 from the assessment, education, and training, the Program shall advise the Board or its designee 4 of its recommendation(s) for additional education, training, psychotherapy and other measures 5 necessary to ensure that Respondent can practice medicine safely. Respondent shall comply with 6 Program recommendations. At the completion of the Program, Respondent shall submit to a final 7 evaluation. The Program shall provide the results of the evaluation to the Board or its designee. 8 The professional boundaries program shall be at Respondent's expense and shall be in addition to 9 the Continuing Medical Education (CME) requirements for renewal of licensure. 10 The Program has the authority to determine whether or not Respondent successfully 11 completed the Program. 12 A professional boundaries course taken after the acts that gave rise to the charges in the 13 Accusation, but prior to the effective date ofthe Decision will be accepted towards the fulfillment 14 ofthis condition if the course would have been approved by the Board or its designee had the 15 course been taken after the effective date of this Decision PSYCHIATRIC EVALUATION. Within 30 calendar days ofthe effective date of 17 this Decision, and on whatever periodic basis thereafter may be required by the Board or its 18 designee, Respondent shall undergo and complete a psychiatric evaluation (and psychological 19 testing, if deemed necessary) by a Board-appointed board certified psychiatrist, who shall 20 consider any information provided by the Board or designee and any other information the 21 psychiatrist deems relevant, and shall furnish a written evaluation report to the Board or its 22 designee. Psychiatric evaluations conducted prior to the effective date of the Decision shall not 23 be accepted towards the fulfillment of this requirement. Respondent shall pay the cost of all 24 psychiatric evaluations and psychological testing. 25 Respondent shall comply with all restrictions or conditions recommended by the evaluating 26 psychiatrist, including psychotherapy or psychoanalysis if indicated, within 15 calendar days after 27 being notified by the Board or its designee. 28 Respondent shall pay the cost of all psychotherapy and psychiatric evaluations. 6 STIPULATED SETTLEMENT ( )

8 5. THIRD PARTY CHAPERONE. During probation, Respondent shall have a third 2 party chaperone present while consulting, examining or treating female patients, however, when 3 Respondent is functioning as a supervising attending physician in a hospital setting, this 4 requirement is waived. Respondent shall, within 30 calendar days of the effective date of the 5 Decision, submit to the Board or its designee for prior approval name( s) of persons who will act 6 as the third party chaperone. 7 If Respondent fails to obtain approval of a third party chaperone within 60 calendar days of 8 the effective date of this Decision, Respondent shall receive a notification from the Board or its 9 designee to cease the practice of medicine within three (3) calendar days after being so notified. 10 Respondent shall cease the practice of medicine until a chaperone is approved to provide 11 monitoring responsibility. 12 Each third party chaperone shall sign (in ink or electronically) and date each patient 13 medical record at the time the chaperone's services are provided. Each third party chaperone shall 14 read the Decision(s) and the Accusation(s), and fully understand the role of the third party 15 chaperone. 16 Respondent shall maintain a log of all patients seen for whom a third party chaperone is 17 required. The log shall contain the: 1) patient initials, address and telephone number; 2) medical 18 record number; and 3) date of service. Respondent shall keep this log in a separate file or ledger, 19 in chronological order, shall make the log available for immediate inspection and copying on the 20 premises at all times during business hours by the Board or its designee, and shall retain the log 21 for the entire term of probation. 22 Respondent is prohibited from terminating employment of a Board-approved third party 23 chaperone solely because that person provided information as required to the Board or its 24 designee. 25 If the third party chaperone resigns or is no longer available, Respondent shall, within 5 26 calendar days of such resignation or unavailability, submit to the Board or its designee, for prior 27 approval, the name of the person(s) who will act as the third party chaperone. If Respondent fails 28 to obtain approval of a replacement chaperone within 60 calendar days of the resignation or 7 STIPULATED SETTLEMENT ( )

9 unavailability of the chaperone, Respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. Respondent shall cease the practice of medicine until a replacement chaperone is approved and assumes monitoring responsibility. 6. NOTIFICATION. Within seven (7) days of the effective date of this Decision, the Respondent shall provide a true copy of this Decision and Accusation to the Chief of Staff or the Chief Executive Officer at every hospital where privileges or membership are extended to Respondent, at any other facility where Respondent engages in the practice of medicine, including all physician and locum tenens registries or other similar agencies, and to the Chief Executive Officer at every insurance carrier which extends malpractice insurance coverage to Respondent. Respondent shall submit proof of compliance to the Board or its designee within 15 calendar days. This condition shall apply to any change(s) in hospitals, other facilities or insurance carrier. 7. OBEY ALL LAWS. Respondent shall obey all federal, state and local laws, all rules governing the practice of medicine in California and remain in full compliance with any court ordered criminal probation, payments, and other orders. 8. QUARTERLY DECLARATIONS. Respondent shall submit quarterly declarations under penalty of perjury on forms provided by the Board, stating whether there has been compliance with all the conditions of probation. Respondent shall submit quarterly declarations not later than 10 calendar days after the end of the preceding quarter. 9. GENERAL PROBATION REQUIREMENTS. 23 Compliance with Probation Unit 24 Respondent shall comply with the Board's probation unit and all terms and conditions of 25 this Decision. 26 Address Changes 27 Respondent shall, at all times, keep the Board informed of Respondent's business and 28 residence addresses, address (if available), and telephone number. Changes of such 8 STIPULATED SETTLEMENT ( )

10 addresses shall be immediately communicated in writing to the Board or its designee. Under no 2 circumstances shall a post office box serve as an address of record, except as allowed by Business 3 and Professions Code section 2021 (b). 4 Place of Practice 5 Respondent shall not engage in the practice of medicine in Respondent's or patient's place 6 of residence, unless the patient resides in a skilled nursing facility or other similar licensed 7 facility. 8 License Renewal 9 Respondent shall maintain a current and renewed California physician's and surgeon's 10 license. 11 Travel or Residence Outside California 12 Respondent shall immediately inform the Board or its designee, in writing, of travel to any 13 areas outside the jurisdiction of California which lasts, or is contemplated to last, more than thirty 14 (30) calendar days. 15 In the event Respondent should leave the State of California to reside or to practice 16 Respondent shall notify the Board or its designee in writing 30 calendar days prior to the dates of 17 departure and return INTERVIEW WITH THE BOARD OR ITS DESIGNEE. Respondent shall be 19 available in person upon request for interviews either at Respondent's place ofbusiness or at the 20 probation unit office, with or without prior notice throughout the term of probation NON-PRACTICE WHILE ON PROBATION. Respondent shall notify the Board or 22 its designee in writing within 15 calendar days of any periods of non-practice lasting more than calendar days and within 15 calendar days of Respondent's return to practice. Non-practice is 24 defined as any period of time Respondent is not practicing medicine in California as defined in 25 Business and Professions Code sections 2051 and 2052 for at least 40 hours in a calendar month 26 in direct patient care, clinical activity or teaching, or other activity as approved by the Board. All 27 time spent in an intensive training program which has been approved by the Board or its designee 28 shall not be considered non-practice. Practicing medicine in another state of the United States or 9 STIPULATED SETTLEMENT ( )

11 Federal jurisdiction while on probation with the medical licensing authority of that state or 2 jurisdiction shall not be considered non-practice. A Board-ordered suspension of practice shall 3 not be considered as a period of non-practice. 4 In the event Respondent's period of non-practice while on probation exceeds 18 calendar 5 months, Respondent shall successfully complete a clinical training program that meets the criteria 6 of Condition 18 of the current version of the Board's "Manual of Model Disciplinary Orders and 7 Disciplinary Guidelines" prior to resuming the practice of medicine. 8 Respondent's period of non-practice while on probation shall not exceed two (2) years. 9 Periods of non-practice will not apply to the reduction of the probationary term. 10 Periods of non-practice will relieve Respondent of the responsibility to comply with the 11 probationary terms and conditions with the exception of this condition and the following terms 12 and conditions of probation: Obey All Laws; and General Probation Requirements COMPLETION OF PROBATION. Respondent shall comply with all financial 14 obligations (e.g., restitution, probation costs) not later than 120 calendar days prior to the 15 completion ofprobation. Upon successful completion ofprobation, Respondent's certificate shall 16 be fully restored VIOLATION OF PROBATION. Failure to fully comply with any term or condition 18 of probation is a violation of probation. If Respondent violates probation in any respect, the 19 Board, after giving Respondent notice and the opportunity to be heard, may revoke probation and 20 carry out the disciplinary order that was stayed. If an Accusation, or Petition to Revoke Probation, 21 or an Interim Suspension Order is filed against Respondent during probation, the Board shall have 22 continuing jurisdiction until the matter is final, and the period of probation shall be extended until 23 the matter is final LICENSE SURRENDER. Following the effective date of this Decision, if 25 Respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy 26 the terms and conditions of probation, Respondent may request to surrender his or her license. 27 The Board reserves the right to evaluate Respondent's request and to exercise its discretion in 28 determining whether or not to grant the request, or to take any other action deemed appropriate 10 STIPULATED SETTLEMENT ( )

12 and reasonable under the circumstances. Upon formal acceptance of the surrender, Respondent 2 shall within 15 calendar days deliver Respondent's wallet and wall certificate to the Board or its 3 designee and Respondent shall no longer practice medicine. Respondent will no longer be subject 4 to the terms and conditions of probation. IfRespondent re-applies for a medical license, the 5 application shall be treated as a petition for reinstatement of a revoked certificate PROBATION MONITORING COSTS. Respondent shall pay the costs associated 7 with probation monitoring each and every year of probation, as designated by the Board, which 8 may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of 9 California and delivered to the Board or its designee no later than January 3 I of each calendar 10 year. 11 ACCEPTANCE 12 I have carefully read the above Stipulated Settlement and Disciplinary Order and have fu!ly 13 discussed it with my attorney, Gary Wittenberg, Esq.. I understand the stipulation and the effect 14 it will have on my Physician's and Surgeon's Certificate. I enter into this Stipulated Settlement 15 and Disciplinary Order voluntarily, knowingly, and intelligently, and agree to be bound by the 16 Decision and Order of the Medical Board of California I have read and fully discussed with Respondent HOWARD SOFEN, M.D. the terms and conditions and other matters contained in the above Stipulated Settlement and Disciplinary Order. I approve its torm and content II STIPULATED SE1TLEMENT ( )

13 ENDORSEMENT 2 The foregoing Stipulated Settlement and Disciplinary Order is hereby respectfully 3 submitted for consideration by the Medical Board ofca1ifomia Dated: LA docx Respectfully submitted, KAMALA D. HARRIS Attorney General of California ROBERT McKIM B,PLL Supervising Deputy Attorney General COLLEEN M. MCGURRIN Deputy Attorney General Attorneys for Complainant 12 STIPULATED SETTLEMENT ( )

14 Exhibit A Accusation No

15 KAMALA D. HARRIS Attorney General of California ROBERT MCKIM BELL Supervising Deputy Attorney General COLLEEN M. MCGURRIN Deputy Attorney General State Bar Number South Spring Street, Suite 1702 Los Angeles, California Telephone: (213) Facsimile: (213) Attorneys for Complainant 11 In the Matter ofthe Accusation Against: HOWARD SOFEN, M.D South Sepulveda Boulevard, Suite 114 Los Angeles, California Physician's and Surgeon's Certificate Number G 47799, FILED STATE OF CALIFORNIA MEDICAL BOARD OF CALIFORNIA SACRA.MENTO ;s"'~ ~ 'l. q 20 's BY '' \)._. ~ Hl-M::AS. ANALYST BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA Respondent. Case No ACCUSATION Complainant alleges: PARTIES Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official 20 capacity as the Executive Director of the Medical Board of California (Board) On June 28, 1982, the Board issued Physician's and Surgeon's Certificate Number 22 G to Howard Sofen, M.D. (Respondent). That license was in full force and effect at all 23 times relevant to the charges brought herein and will expire on August 31, 2017, unless renewed. 24 JURISDICTION This Accusation is brought before the Board under the authority of the following 26 laws. All section references are to the Business and Professions Code unless otherwise indicated Section 2229, subdivision (a), of the Code states, in pertinent part "Protection ofthe 28 (HOWARD SOFEN, M.D.) ACCUSATION NO

16 public shall be the highest priority for the Division of Medical Quality'... and administrative 2 law judges of the Medical Quality Hearing Panel in exercising their disciplinary authority." 3 5. Section , subdivision (e), of the Code states: "An accusation filed against a 4 licensee pursuant to Section of the Government Code alleging sexual misconduct shall be 5 filed within three years after the board, or a division thereof, discovers the act or omission alleged 6 as the ground for disciplinary action, or within 10 years after the act or omission alleged as the 7 ground for disciplinary action occurs, whichever occurs first. This subdivision shall apply to a 8 complaint alleging sexual misconduct received by the board on and after January 1, 2002." 9 6. Section 2227 of the Code states, in pertinent part: 10 (a) "A licensee whose matter has been heard by an administrative law judge of the 11 Medical Quality Hearing Panel as designated in Section ofthe Government Code..., or 12 who has entered into a stipulation for disciplinary action with the board, may, in accordance with 13 the provisions of this chapter: 14 (1) Have his... license revoked upon order of the board. 15 (2) Have his... right to practice suspended for a period not to exceed one year upon 16 Orderoftheboard. 17 (3) Be placed on probation and be required to pay the costs of probation monitoring upon 18 order ofthe board. 19 (4)..." 20 (5) Have any other action taken in relation to discipline as part of an order of probation, 21 as the board or an administrative law judge may deem proper." 22 "(b) Any matter heard pursuant to subdivision (a)... is deemed public, and shall be made 23 available to the public by the board pursuant to Section " Section 2004 of the Code states, in pertinent part: ''The board shall have the responsibility for the following: 1 California Business and Professions Code section 2002, as amended and effective January 1, 2008, provides that, unless otherwise expressly provided, the term "board" as used in the State Medical Practices Act (Bus. & Prof. Code 2000, et seq.) mean~ the "Medical Board of California," and references to the "Division of Medical Quality" and "Division of Licensing" in the Act or any other provision of law shall be deemed to refer to the Board. 2 (HOWARD SOFEN, M.D.) ACCUSATION NO,

17 "(a) The enforcement of the disciplinary and criminal provisions of the Medical Practice 2 Act. 3 "(b) The administration and hearing of disciplinary actions. 4 "(c) Carrying out disciplinary actions appropriate to findings made by a panel or an 5 administrative law judge. 6 "(d) Suspending, revoking, or otherwise limiting certificates after the conclusion of 7 disciplinary actions. 8 "(e)... (i)." 9 8. Section 729 of the Code states, in pertinent part: "(a) Any physician and surgeon... I 0 who engages in an act of... sexual contact with a patient... is guilty of sexual exploitation..." 11 "(b) Sexual exploitation... is a public offense: 12 "(1)..." 13 "(2) Multiple acts in violation of subdivision (a) with a single victim, when the offender 14 has no prior convictions for sexual exploitation, shall be punishable by imprisonment in a county 15 jail for a period of not more than six months, or a fine not exceeding one thousand dollars 16 ($1,000), or by both "(3) - (5). " 18 "For purposes of subdivision (a), in no instance shall consent ofthe patient... be a 19 defense. However, physicians and surgeons shall not be guilty of sexual exploitation for touching 20 any intimate part of a patient... unless the touching is outside the scope ofmedical examination 21 and treatment, or the touching is done for sexual gratification." 22 "(c) For purposes of this section: 23 (1) - (2) 24 (3) "Sexual contact" means... the touching of an intimate part of a patient for the purpose 25 of sexual arousal, gratification, or abuse. 26 (4) "Intimate part" and "touching'' have the same meanings as defined in Section of 27 the Penal Code." 28 "(d) -(f)." 3 (HOWARD SOFEN, M.D.) ACCUSATION NO

18 9. Section 726 of the Code states, in pertinent part: "The commission of any act of sexual... relations with a patient... constitutes unprofessional conduct and grounds for disciplinary action for any person licensed under this division, under any initiative act referred to in this division and under Chapter 17 (commencing with Section 9000) ofdivision 3." 10. Section 2234 of the Code, states, in pertinent part: "The board shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions ofthis article, unprofessional conduct includes, but is not limited to, the following: "(a) Violating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision of this chapter. "(b) Gross negligence. "(c)... (d)." "(e) The commission of any act involving dishonesty or corruption which is substantially related to the qualifications, functions, or duties of a physician and surgeon. "(f) Any action or conduct which would have warranted the denial of a certificate.,(g)... (h)." 11. Section 2266 of the Code states: "The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct." PENAL CODE 12. Section 243.4, subdivision (g), ofthe Penal Code states, in pertinent part: "As used in this section, the following terms have the following meanings: ( l) "Intimate part" means the sexual organ, anus, groin, or buttocks of any person, and the breasts of a female." Ill Ill Ill Ill 4 (HOWARD SOFEN, M.D.) ACCUSATION NO

19 FIRST CAUSE FOR DISCIPLINE 2 (Sexual Exploitation of a Patient) Respondent is subject to disciplinary action under Business and Professions Code 4 section 729 in that he engaged in the sexual exploitation of patient M.M. The circumstances are as 5 follows: On or about June 21, 2007, M.M., 2 a long-term female patient of Respondent's, 7 presented to his office for an injection of Botox, 3 which Respondent administered On or about June 22, 2007, patient M.M. and Respondent met at a hotel where they 9 engaged in a sexual relationship, which included intercourse On or about July 20, 2007, Respondent and M.M. again met at the same hotel and 11 engaged in a sexual relationship, which included intercourse On or about July 25, 2007, patient M.M. presented torespondent for a Juvederm 4 13 injection, which Respondent administered Patient M.M. continued to receive dermatological and minor cosmetic treatments 15 from Respondent and his office continuing into During this time, Respondent and M.M. 16 communicated through text messages, telephone calls and s On or about November 11, 2008, and February 19, 2009, patient M.M. was seen by 18 Respondent for Sclerotherapl of the veins in her legs On or about September 29, 2009, patient M.M. was seen by Respondent for a Botox Po1 privacy, the patients in the Accusation will be identified by their first and last initials. Their full names will be disclosed to Respondent upon a timely request for discovery pursuant to Government Code section Botox is a trademark for a preparation of botulinum toxin (a poisonous substance which paralyses muscles and leads to inhibition of the release of acetylcholine from presynaptic neuromuscular terminals. The effect can last for weeks after being injected into a muscle) used to treat blcpharospasms, strabismus, and muscle dystonias and to smooth facial wrinkles. 4 Juvederm is an injectable facial filler used by cosmetic, dermatological, and plastic surgeons to soften deep folds and reduce wrinkles in the faces of patients. The substance is largely hyaluronic acid, a substance normally found in the skin, muscles, and tendons of mammals. 5 Sclerotherapy is a treatment in which a mildly initating substance (a proliferant) is injected into osseusligamcntous junctions or into weak connective tissues. The body's response to the irritant includes increased blood now and tissue strengthening. It is commonly used for pediatric vascular and lymphatic malformations and adult hemorrhoids and varicose veins. 5 (1-lOWARD SOFEN, M.D.) ACCUSATION NO

20 injection, which Respondent administered. Before M.M. left the office, Respondent embraced 2 and kissed M.M. on the lips On or about October 6 and 26, 2009, patient M.M. was seen by Respondent for 4 various treatments, which Respondent performed. Before M.M. left the office, Respondent 5 embraced and kissed M.M. on the lips On or about November 30, 2009, M.M. was seen by Respondent for a Juvederm 7 injection, which Respondent administered On or about December 14, 2009, M.M. was seen by Respondent for another 9 dermatological treatment, which Respondent performed. During this visit, M.M. and Respondent 10 agreed that she would return to the office after all the staff had left. When M.M. returned to 11 Respondent's office, she and Respondent engaged in a sexual relationship, which included 12 intercourse On or about March 3 and 19, 2010, M.M. continued to treat with Respondent, and the 14 two continued to communication via text messages, telephone calls and s Throughout 2010 and 2011, patient M.M. continued to treat with Respondent's office, 16 seeing his Physician Assistants On or about December 21, 2011, Respondent terminated M.M. as his patient On or about September 18, 2014, Respondent was interviewed by the Board. During 19 the interview, Respondent admitted that he engaged in an inappropriate sexual relationship with 20 patient M.M., which included intercourse Respondent sexually exploited patient M.M. when he engaged in a sexual relationship 22 with her, which included intercourse. 23 SECOND CAUSE FOR DISCIPLINE 24 (Sexual Relations with a Patient) Respondent is subject to disciplinary action under Business and Professions Code 26 section 726 in that he had sexual relations with patient M.M. The circumstances are as follows: Paragraphs 14 through 27, inclusive, above are incorporated herein by reference as if 28 fully set forth. 6 (H 0 WARD SO FEN, M.D.) ACCUSATION NO

21 THIRD CAUSE FOR DISCIPLINE 2 (Gross Negligence) Respondent is subject to disciplinary action under Business and Professions Code 4 section 2234, subdivision (b), in that he committed gross negligence in his care and treatment of 5 patient M.M. The circumstances are as follows: Paragraphs 14 through 27, inclusive, above are incorporated herein by reference as if 7 fully set forth. 8 FOURTH CAUSE FOR DISCIPLINE 9 (Repeated Negligent Acts) Respondent is subject to further disciplinary action under Business and Professions 11 Code section 2234, subdivision (c), in that he committed repeated negligent acts in his care and 12 treatment of patient M.M. The circumstances are as follows: On or about August 30, 2010, patient M.M. presented to Respondent's office for 14 treatment and was seen by one ofrespondent's Physician Assistants (P.A.). At that time, M.M. 15 received an injection of Juvederm. The P.A. recorded in the patient's chart that "0.3 cc of left 16 over p1:oduct" was to be used "for next visit." The manufacturer's precautions, however, provide 17 that Juvederm "is supplied in individual treatment syringes... for single-patient use... The 18 contents ofthe syringe are sterile and nonpyrogenic" and "after use, treatment syringes and 19 needles may be potential biohazards. Handle and dispose ofthese items in accordance with 20 accepted medical practices and applicable local, state, and federal requirement." The 21 manufacturer further warns not to use the package if it's opened and that "use of the product 22 outside the Directions for Use may adversely impact the sterility, homogeneity, and performance 23 ofthe product, and it can therefore no longer be assured." The standard of care when utilizing 24 Juvederm is to discard the syringe with left-over material that was not injected into the patient 25 into an appropriate biohazard container and not to reuse it on the same patient as the practitioner 26 cannot be assured of the stability, sterility, or even the efficacy of the product when it is not used 27 as directed by the manufacture On or about November 8, 2010, M.M. presented to Respondent's office for treatment 7 (HOWARD SOFEN, M.D.) ACCUSATION NO

22 and was seen by the same P.A. At that time, M.M. received another injection of Juvederm. The 2 P.A. recorded in the patient's chart that a "new syringe" was being used as the "other one dried 3 up." The P.A. also documented that "left over product: 0.55 cc for next visit." On or about March 21, 2011, patient M.M. presented to Respondent's office for 5 treatment and was seen by the same P.A. At that time, M.M. received another injection of 6 Juvederm. The P.A. recorded, in the patient's chart, that "0.55 cc" ofjuvederm was "used left 7 over product, finished syringe." Respondent committed repeated negligent acts in his care and treatment of patient 9 M.M. when his assistant failed to properly discard the Juvederm syringes, with the left-over 10 materials, and then utilized the used syringes, with the left-over material, to inject into patient 11 M.M. on subsequent visits. 12 FIFTH CAUSE FOR DISCIPLINE 13 (Failure to Maintain Adequate and Accurate Records) Respondent is subject to disciplinary action under Business and Professions Code 15 section 2266 for failure to maintain adequate and accurate records in his care and treatment of 16 patient M.M. The circumstances are as follows On or about November 11, 2008, and February 19, 2009, patient M.M. was seen by 18 Respondent for Sclerotherapy of the veins in her legs. Respondent, however, failed to document 19 in the patient's chart: the findings of his physical examination of the patient; the name, 20 concentration and volume of the sclerosant used; the number of injections administered; and the 21 specific anatomic locations injected (e.g., thigh, calf, etc.). Respondent further failed to 22 document his informed consent discussion with the patient On or about May 12, 2009, October 26, 2009, and March 3, 2010, patient M.M. was 24 seen by Respondent for Sclerotherapy, however, Respondent failed to document in the patient's 25 chart: the findings of his physical examination of the patient; the name, concentration and 26 volume of the sclerosant used; the number of injections administered; and his informed consent 27 discussion with the patient. 28 II I 8 (HOWARD SOFEN, M.D.) ACCUSATION NO

23 PRAYER 2 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, 3 and that following the hearing, the Medical Board of California issue a decision: 4 1. Revoking or suspending Physician's and Surgeon's Certificate Number G47799, 5 issued to Respondent, Howard Sofen, M.D.; 6 2. Revoking, suspending or denying approval of Respondent's authority to supervise 7 physician assistants, pursuant to section 3527 of the Code; 8 3. If placed on probation, ordering Respondent to pay the Board the costs of probation 9 monitoring; and Taking such other and further action as deemed necessary and proper DATED:!,'J--"u"-"n~e"--...!2::...9L.J,_--!::..2 ~0--'-1..t Executive. irector Medical Board of California Department of Consumer Affairs State of California Complainant 17 LA docx (HOWARD SOFEN, M.D.) ACCUSATION NO