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

Transcription

1 XAVIER BECERRA Attorney General of California MARY CAIN-SIMON Supervising Deputy Attorney General State Bar No Golden Gate Avenue, Suite 000 ' San Francisco, CA Telephone: (45) Facsimile: ( 45) Attorneys for Complainant In the Matter of the Accusation Against, GARY NICHOLAS SPIRTOS, M.D. 345 N. Scottsd.ale Road #605 Scottsdale, AZ 8566 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA Case No DEFAULT DECISION AND ORDER [Gov. Code, 50] 3 Physician's and Surgeon's Certificate No. A 65 4 Respondent FINDINGS OF FACT. On or about April 30, 08, Complainant Kimberly Kirchmeyer, in her official capacity as the Executive Director of the Medical Board of California, Department of Consumer Affairs, filed Accusation No against Gary Nicholas Spirtos, M.D. (Respondent) before the Medical Board of California.. On or about May 30, 997, the Medical Board of Califo~ia (Board) issued Physician's and Surgeon's Certificate No. A 65 to Respondent. The Physician's and Surgeon's Certificate was in full force and effect at all times relevant to the charges brought herein and will expire on July 3, 08, unless renewed. A copy of the Certificate of Licensure is included as Exhibit A in the'exhibit Packet. I 7 8 (GARY NICHOLAS SPIRTOS, M.D.) DEFAULT DECISION & ORDE

2 3. On or about April 30, 08, Sara Pasion, an employee of the Complainant Agency, served by Certified Mail a copy of the Accusation No , Statement to 3 Respondent, Notice of Defense, Request for Discovery, and Government Code sections 507.5, , and to Respondent's address of record with the Board, which was and is N. Scottsdale Road #605, Scottsdale, AZ A copy of the Accusation, the related 6 documents, and Declaration of Service are included as Exhibit B within the Exhibit Packet, and 7 are incorporated herein by reference Service of the Accusation was effective as a matter of law under the provisions of 9 Government Code section 505, subdivision (c). A copy of the US Postal Service record O reflecting delivery of the Accusation to Respondent's address of record is contained within the Exhibit Packet as Exhibit C and is incorporated herein by this reference. 5. On May 8, 08, a Courtesy Notice of Default, together with a copy of the Petition 3 and related documents was served upon Respondent at his address of record via Certified Mail; 4 and another copy was served via First Class Mail. A copy of the Courtesy Notice with proof of 5 service reflecting both mailings is included with the Exhibit packet filed herewith as Exhibit D, 6 and is incorporated herein by this reference. The U.S. Postal Service record reflecting delivery 7 of the Courtesy Notice ofdefault to Respondent's address ofrecord is contained within the 8 Exhibit Packet as Exhibit E and is incorporated herein by this reference STATUTORY AUTHORITY Government Code section. 506 states, in pertinent part: "(c) The respondent shall be entitled to a hearing on the merits ifthe respondent files a 3 notice of defense, and the notice shall be deemed a specific denial of all parts of the accusation 4 not expressly admitted. Failure to file a notice of defense shall constitute a waiver of 5 respondent's right to a hearing, but the agency in its discretion may nevertheless.grant a hearing." 6 Respondent failed to file a Notice of Defense within 5 days after service upon him of the ~7 Accusation, and therefore waived his right to a hearing on the merits of Accusation No (GARY NICHOLAS SPIRTOS, M.D.) DEFAULT DECISION & ORDE

3 7. California Government Code section 50 state,s, in pertinent part: "(a) If the respondent either fails to file a notice of defense or to appear at the hearing, the 3 agency may take action based upon the respondent's express admissions or upon other evidence 4 and affidavits may be used as evidence without any notice to respondent." 5 8. Service of the Petition to Revoke Probation was effective as a matter oflaw under the 6 provisions of Government Code section 505, subdivision (c) Pursuant to its authority under Government Code section 50, the Board finds 8 Respondent is in default. The Board will take action without further hearing and, based on 9 Respondent's express admissions by way of default and the evidence before it, contained in 0 exhibits A, B, C, D and E finds that the allegations in Accusation No are true.. DETERMINATION OF ISSUES Based on the foregoing findings of fact, Respondent Gary Nicholas Spirtos, M.D. has 3 subjected his Physician's and Surgeon's Certificate No. A _65 to discipline. 4. A copy of the Accusation and the related documents and Decla,ration of Service are 5 inc.luded as Exhibits in the accompanying Exhibit Packet, The agency has jurisdiction to adjudicate this. case by default. The Medical Board of California is authorized to revoke Respondent's Physician's 8 and Surgeon's Certificate based upon the following violations alleged in the Accusation: 9 a. Respondent's license is subject to revocation because disciplinary action under 0 section 4 and 305 in that the State of Arizona has issued an interim order prohibiting Respondent from practicing medicine in Arizona until Respondent applies to the Executive Director o:f the Arizona Board and receives permission to res~me practicing. The circumstances 3 are as follows: 4. On or about November 6, 07, Respondent and the Executive Director of the 5 Arizona Medical Board entered into a consent agreement.and order in which it is recited that 6 Investigative staff, the Board's medical consultant and the lead Board member have reviewed and 7 entered into an Interim Consent Agreement pending regarding Arizona Medical Board Complaint 8 3 (GARY NICHOLAS SPlRTOS, M.D.) DEFAULT DECISION & ORDE

4 number MD-7""0906A, alleging that Respondent committed malpractice and boundary violations. 3. The action by the Arizona Medical Board regarding Respondent's license to practice 4 medicine,!!s set forth above, comprises unprofessional conduct and cause for discipline pursuant 5 to sections 305 and/or 4 of the Code. 6 ORDER 7 IT IS SO ORDERED that Physician's and Surgeon's Certificate No. A 65, heretofore 8 issued to Respondent Gary Nicholas Spirtos, M.D., is revoked. 9 Pursuant to Government Code. section 50, subdivision ( c ), Respondent may serve a O written motion requesting that the Decision be vacated and stating the grounds relied on within seven (7) days after service of the Decision ori Respondent. The agency in its discretion may vacate the Decision and grant a hearing on a showing of good cause, as defined in the statute. 3 This Decision shall become effective on Ju y 7, 08 at 5: 00 p. m. 4 ItissoORDEREDi June 9, (GARY NICHOLAS SPIRTOS, M.D.) DEFAULT DECISION & ORDE

5 XAVIER BECERRA Attorney General of California FILED MARY CAIN-SIMON STATE OF CALIFORNIA Supervising Deputy Attorney General MEDICAL BO D OF CALIFORNIA_ 3 State Bar No Golden Gate Avenue, Suite San Francisco, CA Telephone: (45) Facsimile: (45) Attqrneys for Complainant SACRAMENTO \I( '?>0 0 l 8 BY. NALYST BEFORE THE MEDICAL BOARD OF-CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Gary Nicholas Spirtos, M.D. 345 N. Scottsdale Road #605 Scottsdale, AZ 8566 Physician's and Surgeon's Certificate No. A 65, Respondent. Case No ACCUSATION Complainant alleges: PARTIES. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official capacity as the Executive Director of the Medical Board of California, Department of Consumer Affairs (Board).. On or about May 30, 997, the Medical Board issued Physician's and Surgeon's Certificate Number A 65 to Gary Nicholas Spirtos, M.D. (Respondent). The Physician's and Surgeon's Certificate was in full force and effect at all times relevant to the charges brought herein and will expire on July 3, 08, unless renewed. JURISDICTION 3. This Accusation is brought before the Board, under the authority of the following ' laws. All section references are to the Business and Professions Code unless otherwise indicated. (GARY NICHOLAS SPIRTOS, M.D.) ACCUSATION NO _

6 ' 4. Section 305 of the Code states: "The revocation, suspension, or other discipline, restriction or limitation imposed by 3 another state upon a license or certificate to practice medicine issued by that state, or the 4 revocation, suspension, or restriction of the authority to practice medicine by any agency of the. 5 federal government, that would have been grounds for discipline in California of a licensee under 6 this chapter [Chapter 5, the Medical Practice Act] shall constitute grounds for disciplinary action 7 for unprofessional conduct against the licensee in this state." 8 5. Section 7 of the Code provides that a licensee'who is found guilty under the 9 Medical Practice Act may have his or her license revoked, suspended for a period not to exceed o one year, placed on probation and required to pay the costs of probation monitoring, or such other action taken in relation to discipline as the Board deems proper. 6. Section 4 of the Code states: 3 "(a) For any licensee holding a license issued by a board under the jurisdiction of the 4 department, a discjplinary action taken by another state, by any agency of the federal government, 5 or by another country for any act substantially related to the practice regulated by the California 6 license, may be a ground for disciplinary action by the respective state licensing board. A 7 certified copy of the rec.ord of the disciplinary action taken against the licensee by another state, 8 an agen~y of the federal government, or another country shall be conclusive evidence of the 9 events related therein. 0 "(b) Nothing in this section shall preclude a board from applying a specific statutory provision in the licensing act administered by that board that provides for discipline based upon a disciplinary action taken against the licensee by another state, an agency of the federal 3 government, or another country." 4 CAUSE FOR DISCIPLINE 5 (Discipline, Restriction or Limitation Imposed by Another State) 6 7. Respondent Gary Nicholas Spirtos, M.D. is subject to dis iplinary action under 7 section 4and305 in that the State of Arizona has issued an interim order prohibiting 8 Respondent from practicing medicine in Arizona until Respondent applies to the Executive (GARY NICHOLAS SPIRTOS, M.D.) ACCUSATION NO

7 Director of the Arizona Board and receives permission to resume practicing. The circumstances are as follows: 3 8. On or about November 6, 07, Respondent and the Executive Director entered into a 4 consent agreement and order in which it is recited that Investigative staff, the Board's medical 5 consultant and the lead Board member have reviewed and entered into an Interim Consent 6 Agreement pending regarding Arizona Medical Board Complaint immbet MD A, 7 alleging that Respondent committed malpractice and boundary violations The action by the Arizona Medical Board regarding Respondent's license to practice 9 medicine, as set forth above, comprises unprofessional conduct and cause for discipline pursuant 0 to sections 305 and/or 4 of the Code. PRAYER WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, 3 and that following the hearing, the Medical Board of Califo~ia issue a decision: 4. Revoking or suspending Physician's and Surgeon's Certificate Number A 65, 5 issued to Gary Nicholas Spirtos, M.D.; 6. Revoking, suspending or denying approval of Gary Nicholas Spirtos, M.D. 's authority 7 to supervise physician assistants and advanced practice nurses; 8 3. Ordering Gary Nicholas Spirtos, M.D., if placed on probation, to pay the Board the 9 costs of probation monitoring; and 0 4. Taking such other and further action as deemed necessary and proper. DATED: Ap.ril 30, 08 3 Executive Di ctor Medical Board of California 4 Department of Consumer Affairs State of California 5 Complainant 6 SF docx 8 3 (GARY NICHOLAS SPIRTOS, M.D.) ACCUSATION NO

8 . Exhibit A

9 BEFORE THE ARIZONA MEDICAL BOARD In the Matter of 3 Case No. MD A GARY N. SPIRTOS,, M.D. 4 INTERIM CONSENT AGREEMENT Holder of License No. 676 FOR PRACTICE RESTRICTION 5 For the Practice of Allopathlc Medicine 6 7 In the State of Arizona. INTERIM CONSENT AGREEMENT 8 Gary N. Spirtos, M.D. ("Respondent") elects to permanently waive any right to a 9 hearing and appeal with respect to this Interim Consent Agreement for Practice Restriction o and voluntarily consents to the entry of this Order by the Arizona Medical Board ("Boa.rd;.... INTERIM FINDINGS OF FACT The Board is the duly constituted auth'ority for 'the regulation and control of 3 the practice of allopathic medicine in the State of Arizona. 4. Respondent is the holder of License No. 676 for the practice of allopathlc 5 medicine in the State of Arizona The Board initiated case number MD A after receiving a complaint 7 alleging that Respondent committed malpractice and boundary violations Respondent denies the allegations. Further, he reports that he is not 9 currently practicing du.e to a physical condition that requires surgery and will prevent him 0 from responding.to the Investigation in a timely manner. 5. The aforementioned information was presented to the investigative staff, the medical consultant and the lead Board member. All reviewed the information and concur 3 that the interim consent agreement to restrict Respondenfs practice is appropriate T~e investigation into this matter is pending and will be forwarded to the 5 Board promptly upon completion for review and action.

10 INTERIM CONCLUSIONS OF LAW. The Board possesses jurisdiction over the subject matter hereof and over 3 Respondent. 4. Pursuant to A.RS {C)(5) the Executive Director has authority to 5 enter Into a consent agreement when there is evidence_ of danger to the public health and 6 safety Pursuant to A.AC. R , the Executive Director may enter into an 8 interim consent agreement when there is evidence that a restriction is needed to mitigate 9 imminent danger to the public's health and safety. Investigative staff, the Board's medical. O consultant and the lead Board member have reviewed the case and concur that an interim consent agreement is appropriate.. INTERIM ORDER 3 Ii IS HEREBY ORDERED THAT: 4. Respondent is prohibited from engaging in the practice of medicine in the 5 State of Arizona as set forth in A._R.S. 3-40() until Respondent applies to the.6 Executive Director and receives permission to do so. 7. Respondent may request, in writing, release and/or modification of this 8 Interim Consent Agreement. Respondent's request must be accompanied by information 9 demonstrating that Respondent Is safe to practice medicine. The Executive Director, in 0 consultation with and agreement of the lead Board member and the Chief Medical Consultant, has the discretion to determine whether it is appropriate to release Respondent from this Interim Consent Agreement The Board retains jurisdiction and may Initiate new action based upon any 4 violation of this Interim Consent Agreement, including, but not limited to, summarily 5 suspending Respondenfs license.

11 4. Because this is an Interim Consent Agreement and not a final decision by the Board regarding the pending investigation, it is subject to further consideration by the 3 Board. Once the investigation Is complete, it will be promptly provided to the Board for its. 4 review and appropriate action This Interim Consent Agreement shall be effective on the date signed by the ' 6 Board's Executive Director I~ DATED this ''(} day of Iv 0 ~ 07. ARIZ~ MEDICAL BOARD By.-rafn~ e'_ fflc.f ~ Patricia E. Mcsorley ~ Executive Director 3 RECITALS 4 Respondent understands and agrees th~t: 5. The Board, through its Executive Director, may adopt this lnteri_m Consent 6 Agreement, or any part thereof, pursuant to A.RS (C){5) and A.A.C. R Respondent has read and understands thi$ Interim Consent Agreement as set forth herein, and has had the opportunity to discuss this Interim Consent Agreement with an attorney or has waived the opportunity to discuss this Interim Consent Agreement with an attorney. Respondent voluntarily enters into this Interim Consent Agreement and by doing so agrees to abide by all of its terms and conditions By entering into this Interim Consent Agreement, Respondent freely and 5 voluntarily relinquishes all rights to an administrative hearing on the matters set forth 3

12 herein, as well as all rights of rehearing, review, reconsideration, appeal, judicial review or any other administrative and/or judicial action, concerning the matters related to the 3 Interim Consent Agreement Respondent understands that this Interim consent Agreement does not 5 constitute a dismissal or resolution of this matter or any matters that may be currently 6 pending before the Board and does not constitute any waiver; express or implied, of the 7 Board's statutory authority or jurisdiction regarding this or any other pending or future investigations, actions, or proceedings. Respondent also understands that acceptance of this Interim Consent Agreement does not preclude any other agency, subdivision, or officer of this State from instituting civil or criminal proceedings with respect to the conduct that is the subject of this Interim Consent Agreement. Respondent further does not relinquish Respondent's rights to an administrative hearing, rehearing, review, reconsideration, judicial review or any other administrative and/or judicial action, concerning the matters related to a final disposition of this matter, unless Respondent 6 affirmatively does so as part of the final resolution of this matter Respondent acknowledges and agrees that upon signing this Interim 8 Consent Agreement and returning it to the Board's Executive Director, Respondent may 9 not revoke Respondent's acceptance of this Interim Consent Agreement or make any 0 modifications to it. Any modification of this original document is ineffective and void unl~ss mutually approved by the parties in writing. 6. Respondent und~rstands that this Interim Consent Agreement shall not become effective unless and until it is signed by the Board's Executive Director. 4

13 7. Respon~ent understands and agrees that if the Board's Executive 'Director does not adopt this Interim Consent Agreement Respondent will not assert in any future 3 proceedings that the Board's consideration of this Interim Consent Agreement constitutes 4 bias, prejudlce prejudgment or other similar defense Respondent understands that this Interim Consent Agreement is a public 6 record that may be publicly disseminated as a formal action of the Board, and that it shall 7 be reported as required by law to the Nat!onal Practitioner Data Bank Respondent understands that this Interim Consent Agreement does not alleviate Respondent s responsibility to comply with the applicable license-renewal statutes and rules. If this Interim Co'nsent Agreement remains In effect at the time Respondent's allopathic medical license comes up for renewal, Respondent must renew the license if Respondent wishes to retain the license. If Responden~ elects not to renew, the license as p~cribed by statute and rule, Respondent's license will not expire but rather, by operation of law (A.R.S. 3-30) become suspended until the Board takes -6 final action in this matter. Once the Board takes final action, in order for Respondent to be 7 licensed in the future,_ Respondent must submit a new application for lice'nsure. and meet I. 8 all of the requirements set forth in the statutes and rules at that time Respondent understands that any violation of this. Interim Consent 0 Agreement constitutes unprofessional conduct under A.RS (7)(r) "(''[v]iolating a fonnal order, probation, consen~ agreement _or stipulation issued or entered into by the board or its executive director under this chapter. n). /vjib DATED: _...,lt-+/.,...,g~/....7'--- 5

14 E~EYi_~TED COPY of the foregoing ed.th~ day of \\Jc.ilJ?_,""-h~J\. 07 to: 3 Gary N. Spirtos, M.D. 4 Address of Record 5 Attorney for Respondent 6 ORIGlNAL of the foregoing filed this~ day of {Uoue 'V' l~:.~j 07 with: 7 Arizona Medical Board E. Doubletree Ranch Road Scottsdale, AZ o \:6'-~r<rs'<i ie_'"t Board staff"