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 Accusation ) Against: ) ) ) Babak Razaghi Khamsi, M.D. ) ) Physician's and Surgeon's ) Certificate No. A ) ) Respondent ) Case 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 July 3, IT IS SO ORDERED June 5, MEDICAL BOARD OF CALIFORNIA By: ~~~~-r~~---rr~ Jamie Wri Panel A

2 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: BABAK RAZAGHI KHAMSI, M.D. Physician's and Surgeon's Certificate No. A , Case No OAH No Respondent. PROPOSED DECISION This matter came on regularly for hearing on April 27 and 28, 2015, in Los Angeles, California, before H. Stuart Waxman, Administrative Law Judge, Office of Administrative Hearings, State of California. Edward K. Kim, Deputy Attorney General, represented Complainant, Kimberly Kirchmeyer (Complainant), Executive Director of the Medical Board of California (Board). Respondent, Babek Razaghi Khamsi, was present and was represented by Peter R. Osinoff, Attorney at Law. During the hearing, Complainant amended the Accusation to add a "Fourth Cause for Discipline and Fine" at paragraph 18 of the Accusation. The amendment reads: 18. Respondent is subject to disciplinary action and a fine pursuant to under [sic] Code section 802.1, subdivision (a)(l)(b), and Code section Respondent engaged in general unprofessional conduct by failing to report his misdemeanor conviction to the board as required by Cide [sic] section He should be fined pursuant to Code section 125.9, subdivision (a), and California Code of Regulations, title 16, sections and Respondent violated Business and Professions Code section when he failed to report his conviction in writing to the board within 30 days. 1

3 Oral and documentary evidence was received. The record was closed on April 28, 2015, and the matter was submitted for decision. FACTUAL FINDINGS 1. Complainant brought this action in her official capacity. 2. On January 20, 2012, the Board issued Physician's and Surgeon's Certificate No. A to Respondent. The certificate was in full force and effect at all times relevant to the charges brought in this action. It is current and will expire on April 30, 2017, unless renewed. Respondent has no history of license discipline. 3. Respondent is a board-eligible 1 orthopedic surgeon. Born in Iran, he immigrated to the United States with his family when he was an adolescent. He attended the University of California, Los Angeles (UCLA), studying electrical engineering. He graduated Cum Laude and then decided on a career in medicine instead. He earned his medical doctorate at Upstate Medical University (SUNY) in Syracuse, New York and performed an orthopedic residency at the University of Medicine & Dentistry of New Jersey (now Rutgers University) where he was appointed Orthopedic Chief Administrative Resident. He then returned to UCLA for a spine fellowship. Respondent is presently employed at the Haider Spine Center in Riverside. He limits his medical practice to spinal surgery. 1 Respondent has taken and passed the written portion of the examination for board certification. He intends to take the oral portion of the examination this summer. 2

4 4. The essential facts are not in dispute. They are recited in Paragraphs 10, 11, 12, and 13 of the Accusation. They are repeated verbatim below and are incorporated as factual findings herein. 10. On or about January 12, 2014, at approximately 1:33 a.m., an officer of the California Highway Patrol (CHP) observed Respondent's vehicle traveling southbound on the 405 freeway entering the Wilshire Blvd. westbound off-ramp at an extremely slow speed. Respondent's vehicle almost struck the concrete jersey wall along the west road edge. The CHP officer began following this vehicle. While traveling on the off-ramp to westbound Wilshire Blvd., Respondent's vehicle continuously swerved and occasionally jerked left and right. As the vehicle reached the bottom of the off-ramp, it came to a stop at the yield sign. Although there was no traffic traveling westbound on Wilshire Blvd., Respondent's vehicle paused and eventually made a right turn and began to accelerate. As Respondent's vehicle approached a curve in the roadway, it drifted to the right, coming within inches of striking the north curb before jerking the vehicle to the left. The CHP officer then initiated a traffic enforcement stop just east of Federal Ave. Respondent's vehicle was slow to respond to his emergency lights and eventually pulled to the right curb of westbound Wilshire Blvd. just east of Barrington Dr. 11. The CHP officer then approached Respondent's vehicle and motioned for Respondent to roll down his window. He was slow to respond, but eventually rolled the window down. As the window was being rolled down, the CHP officer immediately smelled the odor of an alcoholic beverage emitting from within the vehicle and observed that Respondent's eyes were red and watery and his speech was slow, mumbled and slurred. The CHP officer asked Respondent if he had consumed any alcoholic beverages that evening, and he stated he had not had anything to drink since the prior week, He also stated he was at a party, and was headed home, which was right around the corner. The CHP officer asked Respondent if he still lived at the Santa Monica address on his license, and he stated he did not. The CHP officer then asked Respondent where he currently lived, and he stated that he lived in Corona. The CHP officer then asked if he knew what city he was currently in, and Respondent replied, "Corona." Thereafter, Respondent performed poorly on his Field Sobriety Tests. Based on his driving, his performance on the Field Sobriety Tests, and his objective symptoms of alcohol intoxication, a CHP officer formed the opinion that Respondent had been driving while under the influence of an alcoholic beverage, and his continued driving of a motor vehicle would be unsafe. Respondent was arrested for driving under the influence of alcohol. Respondent was transported to LAPD Pacific for a Breathalyzer test. The results were 0.20% at 3:14 am and 0.21%at3:17 am. 3

5 12. On or about February 19, 2014, in Los Angeles County Superior Court in case number 4MP01553, entitled People vs. Babak Razaghi Khamsi, Respondent was charged with driving under the influence. Thereafter, on or about May 22, 2014, Respondent was convicted, upon his plea of nolo contendre [sic], of violating Vehicle Code section 23152, subdivision (b) (driving while having a 0.08% or higher blood alcohol), a misdemeanor. 13. Respondent was sentenced to probation for a period of 36 months, with terms and conditions, including, among other things, that Respondent enroll in a drinking driver program, pay fines and fees, serve 13 days in jail (with credit for time served), be prohibited from driving a motor vehicle with any intoxicant in his body, and submit to and complete tests of breath, blood, urine or saliva when requested by a peace officer or probation officer. 5. Believing the Board was already aware of his conviction, Respondent did not report his conviction to the Board within 30 days as required by Business and Professions Code section The omission was inadvertent and was not intended to deceive the Board or the public. 6. Respondent does not have a history of heavy drinking. He considers himself to have been a social drinker around the time of his arrest, consuming one or two margaritas during an occasional dinner with friends, or a glass of wine or vodka and soda at a professional gathering. He did not consume alcoholic beverages while on duty or on call, and he did not drink alcoholic beverages during the day or when alone. 7. On the night of his arrest, Respondent attended a birthday party for his cousin's husband at their home in Manhattan Beach. It was a Saturday night. Respondent was not on call that evening. He arrived at approximately 7:00 p.m., having consumed no food that day. Almost immediately, some of his relatives began drinking "shots," and they urged him to join them. Respondent enjoyed close relationships with those relatives, and he did not want to disappoint them, so he too drank several "shots' over the next couple of hours. This was not the kind of drinking to which he was accustomed, and he consumed far more alcohol than his usual amount and in far greater concentrations than was his norm. By approximately 9:00 p.m., Respondent felt ill from the alcohol, and he went to sleep in the driver's seat of his car. He awakened five or six hours later. Although he still felt the effects of the alcohol, he believed he was capable of driving. Rather than drive from Manhattan Beach to his home in Corona, he decided to spend the night at his parents' house in Santa Monica. He was almost to their home when he was stopped by the CHP officers. 4

6 8. On July 18, 2014, Respondent participated in an interview requested by Board personnel. At the conclusion of the interview, he agreed to provide a urine sample for analysis. The results of that test were positive for ethylglucuronide (EtG), a metabolite of alcohol, and ethyl sulfate, a marker similar to EtG. The positive test result was a function of Respondent's having consumed more than one, or possibly one very large, margarita at dinner with a friend one or two nights before the July 18, 2014 interview. The evidence did not disclose precisely how much alcohol Respondent had consumed, or a range of potential amounts, to yield that result. However, knowing that he might consume alcohol with dinner that night, Respondent chose to walk the short distance from his home to the restaurant rather than drive. 9. Respondent attended a second interview with Board personnel and representatives on August 8, At its conclusion, he again agreed to submit to a biological fluid test. The Board did not provide him with the results of the test, but it did not allege that the test results were positive. 10. Thereafter, Respondent hired a driver and also used Uber services on occasions when he believed he might consume alcohol while away from home. On October 14, 2014, he chose to terminate all consumption of alcoholic beverages, and he has maintained his abstinence since then. In addition, Respondent voluntarily contracted with a laboratory to undergo four random biological fluid tests per month. All of the tests thus far have been negative. Respondent has no desire to drink, and he is happier without it. As a bachelor, Respondent believes his abstinence has improved his social life in that he is ''smarter and more [him]self' on dates. (Respondent's terms.) He also feels admired by his friends for his abstinence, and he is proud to be sober. Respondent is pleased that he does not behave in the manner of those around him who drink too much. He is committed to never return to drinking alcohol even after his random biological fluid testing is terminated. 11. Respondent is deeply ashamed, embarrassed and remorseful over his arrest and conviction. He described the night of his arrest as a "life-changing experience" that was not only out of character for him, but should never have happened and will never happen again. Respondent believes his choices on the night of his arrest were ''stupid" and that he had "no excuse." (Respondent's testimony.) He is mindful that someone could have been injured or killed as a result of his conduct and avers that he could never have lived with that event. Respondent has no desire to consume alcohol and is convinced he will not do so agam. 5

7 12. Respondent offered the character testimony of Dennis Cramer, M.D., one of Respondent's employers, and letters from Wayne Berberian, M.D., the Program Director at Rutgers University where Respondent served his fellowship, Jeffrey C. Wang, M.D., the former Chief of Spine Service and Co-Director of the Spine Center at UCLA, where Respondent served his spine fellowship, and John Koerner, M.D., a colleague who went through the residency program with Respondent. All of those witnesses attested to Respondent's professionalism, honesty, responsibility, and compassion. Dr. Koerner did not indicate any knowledge of Respondent's conviction, and he did not opine regarding Respondent's alcohol consumption. The others expressed surprise at Respondent's excessive drinking on the night of his arrest, and they denied ever witnessing any indicia of intoxication on or in him. 13. Respondent is in compliance with the terms and conditions of his criminal probation, including attendance at a Mothers Against Drunk Driving (MADD) panel, attendance at Alcoholics Anonymous (AA) meetings, and completion of a first offender program, which he finished in March One staff member in the first offender program wrote that Respondent's participation in the program had been "exemplary" (Exhibit F), and that: (Ibid.) He is very remorseful. He was very active in the discussions and participated in all groups. He regrets his choices. He has followed all rules and regulations. I feel he gained some positive understanding. 14. On December 1 and 2, 2014, Respondent underwent a two-day evaluation by an inter-disciplinary team at Promises Treatment Center in Santa Monica. He was referred there by Peter Osinoff, his attorney in the instant administrative action. At the end of the evaluation, the inter-disciplinary team determined that Respondent did not suffer from a substance abuse disorder and that his relapse risk assessment was "very low." (Exhibit I, page 7.) They recommended that Respondent abstain from alcohol and illicit drug use and continue his voluntary random alcohol monitoring "to continue to document abstinence until after all medical board issues are settled. (The purpose of this voluntary monitoring is to document that he is able to remain abstinence [sic] and not because he has an alcohol use disorder.)" (Id. at page 8.) 6

8 15. The evaluation at Promises Treatment Center and the testimony of its Director of Health Services, Gregory Skipper, M.D. are given little weight for the following reasons: a. There is an obvious high risk of bias by the evaluators in light of the fact that they were hired by Respondent who was referred to them by Respondent's attorney. b. Dr. Skipper has testified in four to five Medical Board administrative hearings in California. All have been on behalf of the respondent. c. The recommendation that Respondent maintain his abstinence and monitoring only until his Medical Board issues are resolved is an odd medical recommendation that seems to be more dependent on legal strategy than objective medical science. d. Dr. Skipper opined that the EtG of over 45,000 was possibly inconsistent with the history of alcohol moderation Respondent had provided, and the positive ethyl sulfate reading made the EtG reading more reliable. Yet, the inter-disciplinary team chose to ignore those findings because ( 1) it was "hard to say what was in the drink" (Dr. Skipper's testimony), (2) Respondent might have been minimizing his report of alcohol intake because of fear of Board discipline, (3) people metabolize alcohol differently, and ( 4) Respondent was not under an order of abstinence when he consumed alcohol before his July 18, 2014 interview. e. Even if no finding could be made concerning the reliability of the EtG and ethyl sulfate readings, rather than issue a neutral opinion, the inter-disciplinary team minimized those readings and opined that Respondent did not suffer from an alcohol abuse disorder and needed no further testing, treatment, or monitoring. They based their opinions on Respondent's history, testing (which showed he might be minimizing his conduct and alcohol consumption), and interviews with Respondent's friend and his sister, neither of whom had ever seen Respondent intoxicated. The team was silent on that fact that Respondent's sister and friend were not with him every time he consumed alcohol. The event of Respondent's arrest amply demonstrates the weakness of the team's reasoning. 16. Complainant offered the opinions of forensic toxicologist Erin Crabtrey who reviewed the observations of the arresting officer on the night of Respondent's arrest. Based on those observations, Ms. Crabtrey opined that, on that night, Respondent's use of alcohol resulted in impairment that would be considered a danger to himself, others, and/or the general public. She further opined that Respondent had been unable to safely drive his car with the care and caution attributable to a sober individual. 17. Respondent is concerned that license discipline will (1) preclude him from sitting for the oral examination for board certification, (2) result in his removal from one or more insurance carriers' panels, (3) result in his losing referrals from an independent physician association (IP A), and ( 4) result in his losing or failing to be granted certain hospital privileges. 7

9 LEGAL CONCLUSIONS 1. Cause exists to suspend or revoke Respondent's certificate, pursuant to Business and Professions Code 2 section 2239, for using alcoholic beverages to the extent or in a manner to be dangerous or injurious to Respondent, any other person, or to the public, as set forth in Findings 4, 7, and Cause exists to suspend or revoke Respondent's certificate, pursuant to sections 490 and 2236, for conviction of a substantially related crime, as set forth in Findings 4 and Cause exists to suspend or revoke Respondent's certificate, pursuant to sections 2234, 2236, and 2239, for general unprofessional conduct, as set forth in Findings 4, 7, and Cause exists to suspend or revoke Respondent's certificate and impose a fine against Respondent, pursuant to sections and 2234, for failure to report his criminal conviction within 30 days of the conviction, as set forth in Findings 4 and 5. indicated. 5. Section 490 states in pertinent part: (a) In addition to any other action that a board is permitted to take against a licensee, a board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. (b) Notwithstanding any other provision of law, a board may exercise any authority to discipline a licensee for conviction of a crime that is independent of the authority granted under subdivision (a) only if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the licensee's license was issued. ( c) A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. An action that a board is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section of the Penal Code. 2 All statutory references are to the Business and Professions Code unless otherwise 8

10 6. Section 2236 states in relevant part: (a) The conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon constitutes unprofessional conduct within the meaning of this chapter. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred. [~]... [~] ( d) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section and Section The record of conviction shall be conclusive evidence of the fact that the conviction occurred. 7. Section 2239, subdivision (a), states: The use or prescribing for or administering to himself or herself, of any controlled substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct. 8. Respondent argued that, under section 2239, his single conviction for driving under the influence of alcohol (DUI) should not be considered unprofessional conduct. He cited as authority for his position Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, and Watson v. Superior Court (2009) 176 Cal.App.4th Neither case supports the position that a single DUI conviction should not be considered unprofessional conduct under Business and Professions Code section Griffiths addressed the issue of whether a logical nexus exists between multiple alcohol-related convictions and a physician's fitness to practice medicine such that section 2239, subdivision (a) did not violate the due process and equal protection clauses of the California and United States Constitutions. Watson held that, in enacting section 2239, subdivision (a), the Legislature established a nexus between a physician's use of alcohol to an extent or in a manner as to be dangerous or injurious to the physician, other individuals, or the public and his/her practice of medicine. The Watson court also held that the imposition of license discipline against a physician for alcohol-related incidents that do not result in criminal convictions, does not violate the physician's due process rights. 9

11 9. However, Griffiths and Watson are inapplicable to this case for another, more obvious reason: The cause for discipline relating to the conviction of a substantially related crime was not pled under section It was pled under sections 490 and Those statutes allow for the imposition of license discipline following the conviction for any crime provided the crime is substantially related to the qualifications, functions or duties of the licensed activity. Thus, while section 2239 requires conviction of at least two alcohol-related misdemeanors or one alcohol-related felony for a finding of unprofessional conduct, only one conviction need be established under sections 490 and 2236 as long as the crime resulting in the conviction is substantially related. 10. To the extent that sections 2236 and 2239 appear inconsistent, they must be reconciled, if possible, in order to best ascertain and carry out the Legislature's intent. In California Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575, 1582, the Court stated: The fundamental goal of statutory construction is to ascertain the intent of the Legislature to effectuate the purpose of the law. To determine that intent, we must look first to the statutory language itself, giving words their usual and ordinary meaning. (Citations.) We are not authorized to insert qualifying provisions and exceptions which have not been included by the Legislature, and may not rewrite a statute to conform to an intention which does not appear in the statutory language. (Citations.) Nevertheless, a statute should not be read in isolation; instead, statutes on the same subject must be construed together, to harmonize and give effect to each, if possible. (Citation.) Finally, the contemporaneous administrative construction of statutes by the administrative agency charged with their enforcement and interpretation is entitled to great weight, unless clearly erroneous or unauthorized. (Citation.) 10

12 11. Substantial relationship and unprofessional conduct are not synonymous. Unprofessional conduct is that conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession. (Citation.) (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574.) California Code of Regulations, title 16, section 1360, defines substantial relationship as follows: For the purposes of denial, suspension or revocation of a license, certificate or permit pursuant to Division 1.5 (commencing with Section 4 75) of the code, a crime or act shall be considered to be substantially related to the qualifications, functions or duties of a person holding a license, certificate or permit under the Medical Practice Act if to a substantial degree it evidences present or potential unfitness of a person holding a license, certificate or permit to perform the functions authorized by the license, certificate or permit in a manner consistent with the public health, safety or welfare. Such crimes or acts shall include but not be limited to the following: Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision of the Medical Practice Act. 12. Thus, under section 2236, while the conviction of any crime constitutes unprofessional conduct as long as the crime underlying the conviction is substantially related to the qualifications, functions, or duties of a physician and surgeon, under section 2239, two misdemeanor alcohol-related convictions or one felony alcohol-related conviction is considered unprofessional conduct as a matter of law. This is consistent with the holding in Watson, supra, that the establishment of unprofessional conduct under section 2239 for two misdemeanor alcohol-related convictions was created by the Legislature as a matter of law rather than upon proof of substantial relationship as required under section In this case, where there is one misdemeanor alcohol-related conviction pled under section 2236, a substantial relationship between Respondent's crime and the qualifications, functions or duties of his profession must be established. 14. The dangers of driving under the influence of alcohol are well known, perhaps no more so than by practitioners of the healing arts such as physicians, for whom the ravages of alcohol abuse and driving under the influence are an everyday experience. This was emphasized in the character reference letter written by Dr. Berberian: I realize the seriousness of this incident [Respondent's conduct leading to his arrest and conviction], and more often than most people, I have seen firsthand the horrific consequences wreaked by driving under the influence. I have literally shed tears over patients who caused irreparable damage to themselves or others by acting in a careless or wanton fashion. (Exhibit C, page 2.) 11

13 15. Little more could be substantially related to the qualifications, functions and duties of a physician and surgeon than for Respondent to have driven his car while so severely under the influence of drugs as to cause him to fail to monitor and control his speed, jerk the steering wheel from side to side, and to be unable to identify the city in which he was driving. It was only fortuitous that no one was injured or killed by Respondent's actions. Respondent's conduct was the antithesis of a physician's purpose. The cause for discipline for conviction of one substantially-related, misdemeanor, alcohol-related crime is established under section In an attempt to minimize or eliminate the discipline to be imposed as a result of his conduct and conviction, Respondent relied on an article written by Laura Sweet, the Board's Deputy Chief of Enforcement, which appeared in the July 2009 Medical Board of California Newsletter. Ms. Sweet wrote in part: The most common event that triggers a Medical Board investigation for a Business and Professions 2239 violation is a conviction for drunk driving. Whenever a physician and surgeon is convicted of a crime, the Medical Board is notified of it. If it's a first conviction for drunk driving, and absent any information the physician is suffering from a problem that could potentially impact patient care, we generally will close the case and maintain it for a period of five years. Upon notification of a second conviction, however, the investigation will be more extensive... (Exhibit N.) 17. Albeit informative, the article is not entirely reliable in that (1) it was written almost six years ago, and no evidence was offered to establish that the Board still maintains that position; (2) the article spoke in generalities rather than specifics (i.e., "we generally will close... ");and (3) the exhibit was incomplete, consisting of only one page of the article which indicates it continues on a subsequent page. 18. Far more convincing than Ms. Sweet's article and the highly questionable evaluation at Promises Treatment Center is Respondent himself. In an otherwise disciplined and law-abiding life, he made one mistake, albeit a very large one. He accepted responsibility for his error and pied nolo contendere to driving with a blood alcohol content in excess of 0.08 percent. He accepted his sentence and, thus far, has complied with the terms and conditions of probation. Most importantly, Respondent took his mistake to heart. He recognized the tremendous damage he could have caused, and he took immediate steps to prevent a recurrence, first by hiring a driver and utilizing Uber and even walking to a restaurant when he anticipated consuming alcohol, and shortly thereafter, by choosing to abstain entirely from alcohol consumption. He also voluntarily contracted with a laboratory to undergo random biological fluid testing. His concern for the safety of others while he is driving is consistent with the character witnesses' descriptions of Respondent as a caring and compassionate practitioner. Respondent's embarrassment and remorse were both convincing and compelling. He is not only sober, he is proud of his sobriety. 12

14 19. These efforts, and Respondent's commitment to abstinence, are consistent with the Board's criteria for rehabilitation found at California Code of Regulations, title 16, section The regulation states: When considering the suspension or revocation of a license, certificate or permit on the ground that a person holding a license, certificate or permit under the Medical Practice Act has been convicted of a crime, the division, in evaluating the rehabilitation of such person and his or her eligibility for a license, certificate or permit shall consider the following criteria: (a) The nature and severity of the act(s) or offense(s). (b) The total criminal record. ( c) The time that has elapsed since commission of the act( s) or offense( s ). ( d) Whether the licensee, certificate or permit holder has complied with any terms of parole, probation, restitution or any other sanctions lawfully imposed against such person. ( e) If applicable, evidence of expungement proceedings pursuant to Section of the Penal Code. (f) Evidence, if any, of rehabilitation submitted by the licensee, certificate or permit holder. 20. Although Respondent's crime was certainly a serious one, it was also his only one. His conviction is temporally recent and therefore he is not eligible for expungement at this time. However, he has complied with the terms and conditions of probation, and he has established extraordinary rehabilitation in a relatively short period of time. It is true that, since people have a strong incentive to obey the law while under the supervision of the criminal justice system, little weight is generally placed on the fact that an applicant has engaged in good behavior while on probation or parole. (In re Gossage (2000) 23 Cal.4th 1080, 1099.) However, there appears to be very little risk of recidivism upon the termination of probation since Respondent was a respectful, law-abiding citizen before his anomalous conduct on one evening, and he has taken impressive steps to ensure that he is even more so today and will remain so in the future. 13

15 21. Section states in relevant part: (a) (1) A physician and surgeon, osteopathic physician and surgeon, a doctor of podiatric medicine, and a physician assistant shall report either of the following to the entity that issued his or her license: [~]... [~] (B) The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. [~]... [~] (b) Failure to make a report required by this section shall be a public offense punishable by a fine not to exceed five thousand dollars ($5,000). 22. Section 125.9, subdivision (b )(3) states in relevant part: In assessing a fine, the board, bureau, or commission shall give due consideration to the appropriateness of the amount of the fine with respect to factors such as the gravity of the violation, the good faith of the licensee, and the history of previous violations. part: 23. California Code of Regulations, title 16, section states in pertinent The amount of any fine to be levied by a board official shall take into consideration the factors listed in subdivision (b )(3) of Section of the code and shall be within the range set forth below. [~]... [~] (c) A citation may include a fine from $100 to $2500. However, a citation may include a fine up to $5,000 if one or more of the following circumstances apply: (1) The cited person has received two or more prior citations for the same or similar violations; (2) The citation involves multiple violations that demonstrate a willful disregard for the law. 24. Section and Regulation make it clear that the amount of the fine should correlate with culpability. In this case, Respondent understood that the Board was already aware of the conviction and, in fact, it was. It was for that reason that it was able to schedule the first interview with Respondent less than two months after Respondent suffered the conviction. Respondent's failure to report the conviction to the Board was inadvertent and not intended to deceive. Although a fine is appropriate, the circumstances dictate that its amount should reflect Respondent's inadvertence. Respondent shall be fined $250 for his failure to timely disclose his conviction to the Board. 14

16 25. In closing argument, Respondent's counsel argued that, under the circumstances and applicable law of this case, Respondent's license must remain unrestricted, and that there is "no reason to derail" him from becoming board-certified, maintaining his membership on insurance carrier panels, obtaining and maintaining hospital privileges, and receiving referrals from IPA's. Respondent must understand that it is not the Board, but Respondent himself, by virtue of his misconduct, who is responsible for any "derailment" of professional opportunities 26. Respondent argued that no discipline should be imposed in this case and that even a public letter ofreprimand would be "too harsh." (Respondent's closing argument.) Accepting that argument would be tantamount to dismissing the substantive portion of the Accusation leaving only the fine for the violation. That result is not warranted. It does appear that what occurred on January 12, 2014, was an isolated, anomalous event that had never occurred before and is extremely unlikely to ever occur again. Given the unique circumstances under which Respondent committed the crime, the great impact the event had on him, the rapid and robust steps he took to ensure against a recurrence, and the improbable chance of recurrence, actual discipline (i.e., license revocation, suspension or probation) is not justified. However, members of the public are entitled to know a physician's practicerelated foibles when choosing to entrust or to maintain their health care with that physician. Simply ignoring the events of January 12, 2014, would disserve the public health, safety, welfare and interest and violate the Board's mandate of public protection. ( 2229.) A public reprimand, pursuant to section 2227, subdivision (a)(4) will provide a measured response to Respondent's conduct and conviction while informing and protecting the public. ORDER 1. Respondent, Babek Razaghi Khamsi, is hereby publicly reprimanded under the provisions of Business and Professions Code section 2227, subdivision (a)( 4 ), for the conduct specified in Legal Conclusions 1, 2, 3, and Within 30 days of the effective date of this Decision, Respondent shall pay to the Board a fine of $250 for violation of Business and Professions Code section Dated: May 4, 2015 a~~~, fi. STUART W AXMA. Administrative Law Judge Office of Administrative Hearings 15

17 KAMALA D. HARRIS Attorney General of California E. A. JONES III Supervising Deputy Attorney General EDWARD KIM Deputy Attorney General State Bar No California Department of Justice 300 So. Spring Street, Suite 1702 Los Angeles, CA Telephone: (213) Facsimile: (213) Attorneys for Complainant FILED ST ATE OF CALIFORNIA MEDICAL BOARD OF CALIFORNIA SACRA,MEt:iTO 0~ ~ 20.li. BY~~t.\\~;OAALYST v BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: BABAK RAZAGHI KHAMSI, M.D River Crest Dr., Ste. A Riverside, CA Case No ACCUSATION 14 Physician's and Surgeon's 15 Certificate No. A Respondent. 17 Complainant alleges: PARTIES 1. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official 20 capacity as the Executive Director of the Medical Board of California, Department of Consumer 21 Affairs On or about January 20, 2012, the Medical Board of California issued Physician's and 23 Surgeon's Certificate Number A to Babak Razaghi Khamsi, M.D. (Respondent). The 24 Physician's and Surgeon's Certificate was in full force and effect at all times relevant to the 25 charges brought herein and will expire on April 30, 2015, unless renewed. 26 JURISDICTION This Accusation is brought before the Medical Board of California (Board), 28 Department of Consumer Affairs, under the authority of the following laws. All section 1 Accusation

18 1 references are to the Business and Professions Code unless otherwise indicated Section 2227 of the Code provides that a licensee who is found guilty under the 3 Medical Practice Act may have his or her license revoked, suspended for a period not to exceed 4 one year, placed on probation and required to pay the costs of probation monitoring, or such other 5 action taken in relation to discipline as the Board deems proper Section 2234 of the Code, states: 7 "The board shall take action against any licensee who is charged with unprofessional 8 conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not 9 limited to, the following: 10 "(a) Violating or attempting to violate, directly or indirectly, assisting in or abetting the 11 violation of, or conspiring to violate any provision of this chapter. 12 "(b) Gross negligence. 13 "(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or 14 omissions. An initial negligent act or omission followed by a separate and distinct departure from 15 the applicable standard of care shall constitute repeated negligent acts. 16 "(1) An initial negligent diagnosis followed by an act or omission medically appropriate 17 for that negligent diagnosis of the patient shall constitute a single negligent act. 18 "(2) When the standard of care requires a change in the diagnosis, act, or omission that 19 constitutes the negligent act described in paragraph (1), including, but not limited to, a 20 reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs from the 21 applicable standard of care, each departure constitutes a separate and distinct breach of the 22 standard of care. 23 "( d) Incompetence. 24 "(e) The commission of any act involving dishonesty or corruption which is substantially 25 related to the qualifications, functions, or duties of a physician and surgeon. 26 "(f) Any action or conduct which would have warranted the denial of a certificate. 27 "(g) The practice of medicine from this state into another state or country without meeting 28 the legal requirements of that state or country for the practice of medicine. Section 2314 shall not 2 Accusation

19 1 apply to this subdivision. This subdivision shall become operative upon the implementation of the 2 proposed registration program described in Section "(h) The repeated failure by a certificate holder, in the absence of good cause, to attend and 4 participate in an interview scheduled by the mutual agreement of the certificate holder and the 5 board. This subdivision shall only apply to a certificate holder who is the subject of an 6 investigation by the board." Section 2236 of the Code states: (a) The conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon constitutes unprofessional conduct within the meaning of this chapter [Chapter 5, the Medical Practice Act]. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred. (b) The district attorney, city attorney, or other prosecuting agency shall notify the Division of Medical Quality 1 of the pendency of an action against a licensee charging a felony or misdemeanor immediately upon obtaining information that the defendant is a licensee. The notice shall identify the licensee and describe the crimes charged and the facts alleged. The prosecuting agency shall also notify the clerk of the court in which the action is pending that the defendant is a licensee, and the clerk shall record prominently in the file that the defendant holds a license as a physician and surgeon. ( c) The clerk of the court in which a licensee is convicted of a crime shall, within 48 hours after the conviction, transmit a certified copy of the record of conviction to the board. The division may inquire into the circumstances surrounding the commission of a crime in order to fix the degree of discipline or to determine if the conviction is of an offense substantially related to the qualifications, functions, or duties of a physician and surgeon. ( d) A plea or verdict of guilty or a conviction after a plea of no lo contendere is deemed to be a conviction within the meaning of this section and Section The record of conviction shall be conclusive evidence of the fact that the conviction occurred. 1 Pursuant to Business and Professions Code section 2002, "Division of Medical Quality" or "Division" shall be deemed to refer to the Medical Board of California. 3 Accusation

20 1 7. Section 2239 of the Code states: 2 (a) The use or prescribing for or administering to himself or herself, of any controlled 3 substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic 4 beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to 5 any other person or to the public, or to the extent that such use impairs the ability of the licensee 6 to practice medicine safely or more than one misdemeanor or any felony involving the use, 7 consumption, or self-administration of any of the substances referred to in this section, or any 8 combination thereof, constitutes unprofessional conduct. The record of the conviction is 9 conclusive evidence of such unprofessional conduct. 1 O (b) A plea or verdict of guilty or a conviction following a plea of no lo contendere is 11 deemed to be a conviction within the meaning of this section. The Division of Medical Quality 12 may order discipline of the licensee in accordance with Section 2227 or the Division of Licensing 13 may order the denial of the license when the time for appeal has elapsed or the judgment of 14 conviction has been affirmed on appeal or when an order granting probation is made suspending 15 imposition of sentence, irrespective of a subsequent order under the provisions of Section of the Penal Code allowing such person to withdraw his or her plea of guilty and to enter a plea of 17 not guilty, or setting aside the verdict of guilty, or dismissing the accusation, complaint, 18 information, or indictment California Code of Regulations, title 16, section 1360, states: 20 For the purposes of denial, suspension or revocation of a license, certificate or permit 21 pursuant to Division 1.5 (commencing with Section 475) of the code, a crime or act shall be 22 considered to be substantially related to the qualifications, functions or duties of a person holding 23 a license, certificate or permit under the Medical Practice Act if to a substantial degree it 24 evidences present or potential unfitness of a person holding a license, certificate or permit to 25 perform the functions authorized by the license, certificate or permit in a manner consistent with 26 the public health, safety or welfare. Such crimes or acts shall include but not be limited to the 27 following: Violating or attempting to violate, directly or indirectly, or assisting in or abetting the 28 violation of, or conspiring to violate any provision of the Medical Practice Act. 4 Accusation

21 1 2 FIRST CAUSE FOR DISCIPLINE (Dangerous Use of Alcohol) 3 9. Respondent is subject to disciplinary action under section 2239 of the Code, in that he 4 consumed alcohol in a manner that was dangerous or injurious to himself, to others, or to the 5 public. The circumstances are as follows: On or about January 12, 2014, at approximately 1:33 a.m., an officer of the California 7 Highway Patrol (CHP) observed Respondent's vehicle traveling southbound on the 405 freeway 8 entering the Wilshire Blvd. westbound off-ramp at an extremely slow speed. Respondent's 9 vehicle almost struck the concrete jersey wall along the west road edge. The CHP officer began 10 following this vehicle. While traveling on the off-ramp to westbound Wilshire Blvd., 11 Respondent's vehicle continuously swerved and occasionally jerked left and right. As the vehicle 12 reached the bottom of the off-ramp, it came to a stop at the yield sign. Although there was no 13 traffic traveling westbound on Wilshire Blvd., Respondent's vehicle paused and eventually made 14 a right tum and began to accelerate. As Respondent's vehicle approached a curve in the roadway, 15 it drifted to the right, coming within inches of striking the north curb before jerking the vehicle to 16 the left. The CHP officer then initiated a traffic enforcement stop just east of Federal Ave. 17 Respondent's vehicle was slow to respond to his emergency lights and eventually pulled to the 18 right curb of westbound Wilshire Blvd. just east of Barrington Dr The CHP officer then approached Respondent's vehicle and motioned for Respondent 20 to roll down his window. He was slow to respond, but eventually rolled the window down. As 21 the window was being rolled down, the CHP officer immediately smelled the odor of an alcoholic 22 beverage emitting from within the vehicle, and observed that Respondent's eyes were red and 23 watery and his speech was slow, mumbled and slurred. The CHP officer asked Respondent if he 24 had consumed any alcoholic beverages that evening, and he stated he had not had anything to 25 drink since the prior week. He also stated he was at a party, and was headed home, which was 26 right around the comer. The CHP officer asked Respondent if he still lived at the Santa Monica 27 address on his license, and he stated he did not. The CHP officer then asked Respondent where 28 he currently lived, and he stated that he lived in Corona. The CHP officer then asked if he knew 5 Accusation

22 1 what city he was currently in, and Respondent replied, "Corona." Thereafter, Respondent 2 performed poorly on his Field Sobriety Tests. Based on his driving, his performance on the Field 3 Sobriety Tests, and his objective symptoms of alcohol intoxication, a CHP officer formed the 4 opinion that Respondent had been driving while under the influence of an alcoholic beverage, and 5 his continued driving of a motor vehicle would be unsafe. Respondent was arrested for driving 6 under the influence of alcohol. Respondent was transported to LAPD Pacific for a breathalyzer 7 test. The results were 0.20% at 3: 14 am and 0.21 % at 3: 17 am On or about February 19, 2014, in Los Angeles County Superior Court in case 9 number 4MP01553, entitled People vs. Babak Razaghi Khamsi, Respondent was charged with 10 driving under the influence. Thereafter, on or about May 22, 2014, Respondent was convicted, 11 upon his plea of nolo contendre, of violating Vehicle Code section 23152, subdivision (b)(driving 12 while having a 0.08% or higher blood alcohol), a misdemeanor Respondent was sentenced to probation for a period of 36 months, with terms and 14 conditions, including, among other things, that Respondent enroll in a drinking driver program, 15 pay fines and fees, serve 13 days in jail (with credit for time served), be prohibited from driving a 16 motor vehicle with any intoxicant in his body, and submit to and complete tests of breath, blood, 17 urine, or saliva when requested by a peace officer or probation officer. 18 SECOND CAUSE FOR DISCIPLINE 19 (Conviction of Substantially Related Crimes) Respondent is subject to disciplinary action under sections 2236 and 490, of the Code, 21 in that he was convicted of offenses substantially related to the qualifications, functions, or duties 22 of a physician. The circumstances are as follows: The allegations of the First Cause for Discipline are incorporated herein by reference 24 as if fully set forth. 25 THIRD CAUSE FOR DISCIPLINE 26 (General Unprofessional Conduct) Respondent is subject to disciplinary action under section 2234, in that he violated 28 several provisions of the Medical Practice Act, including sections 2236 and The 6 Accusation