COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BEFORE THE STATE BOARD OF MEDICINE FINAL ORDER

Transcription

1 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BEFORE THE STATE BOARD OF MEDICINE Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs v. John P. Hakim, M.D., Respondent File No Docket No FINAL ORDER AND NOW, this 10 day of May, 2012, the State Board of Medicine (Board), having reviewed the entire record of this case established before the hearing examiner, and noting that although the Board did file a Notice of Intent to Review, neither party filed an application to review, ADOPTS the Adjudication and Order of the hearing examiner as the Final Adjudication and Order in this case. A copy of the Adjudication and Order is attached as Attachment A. This order shall be retroactive to February 24, 2012, the effective date of the hearing examiner's adjudication and order. BUREAU OF PROFESSIONAL & OCCUPATIONAL AFFAIRS STATE BOARD OF MEDICINE COMMISSIONER CHAIR. FREEMAN, M.D. Hearing Examiner: Respondent's Attorney: Prosecuting Attorney: Board counsel: Date of mailing: Joyce McKeever, Esquire Michael M. Badowski, Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA Keith E Bashore, Esquire Teresa Lazo, Esquire to 2_0

2 Attachment A

3 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BEFORE THE STATE BOARD OF MEDICINE RECEIVED FEB Department of State. Prothonotary ComMonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs v. John P. Hakim, M.D., Respondent Docket No. File No ADJUDICATION AND ORDER Joyce McKeever Hearing'Examiner Commonwealth of Pennsylvania GOVERNOR'S OFFICE OF GENERAL COUNSEL Department of State P.O. Box 2649 Harrisburg, PA (717) tii6tri6uted -,)ROSECUTION 301iNSEL 1EARING EXAMINER OTHER

4 HIS TORY This matter was initiated by the filing of a one-count Order to Show Cause (OSC) on December 22, The single count alleged that John P. Hakim, M.D. (Respondent) is subject to disciplinary action under Section 41(4) of the Medical Practice Act (Act), Act of December 20, 1985, P.L. 457, No. 112, as amended, 63 P.S (4), as a result of having disciplinary action taken against him by the Maryland State Board of Physicians. Respondent, through counsel, filed an Answer to the OSC on January 20, A formal administrative hearing was originally scheduled for March 17, 2011 but was rescheduled three times, once at the Commonwealth's request and twice at Respondent's request. On May 4, 2011, Michael M. Badowski, Esquire and Michael R. Miller, Esquire filed an Entry of Appearance on Respondent's behalf. On August 24, 2011, Respondent filed a Hearing Memorandum. The rescheduled hearing was held on August 29, Keith E. Bashore, Esquire, was present on behalf of the Commonwealth and presented the Commonwealth's case through documentary evidence. Respondent appeared at the hearing and was represented by Attorney Badowski, who presented Respondent's case -through Respondent's testimony; the testimony of Thomas McCan, Sr.; and documentary evidence. Both parties waived the filing of post-hearing briefs and the record in this matter closed on September 7, 2011, with the filing of the hearing transcript). I N.T. refers to the notes of testimony. The hearing examiner notes that page 4 of the transcript incorrectly indicates that Re'spondent's Exhibits 34 and 35 were admitted into evidence when, in fact, Respondent's Exhibits 1 through 33 and Exhibit 35 were all admitted into evidence. The parties stipulated to the facts underlying Exhibit 34 but it Was not admitted into evidence due to its voluminous nature. None of the exhibits were attached to the hearing transcript but can be found in the Prothonotary's file. The hearing examiner also notes that page 4 of the transcript incorrectly identifies Exhibit 35 as a letter from Dr. Woyalty. The correct spelling is Dr. Royalty. 1

5 FINDINGS OF FACT 1. Respondent holds a license to practice medicine and surgery in the Commonwealth of Pennsylvania, license no. MD071755L, issued by the Board August 28, (Board records) 2. Respondent's license has been inactive since December 20, 2002, but may be renewed, reactivated or reinstated thereafter upon the filing of the appropriate documentation and payment of the necessary fees, (Board records) 3. Respondent's address of record with the Board is 8043 Kidwell Town Court, Vienna, VA ; however, Respondent's current business address is 7501 Surratts Road, Suite 302, Clinton, MD (Board records; Respondent's Answer filed at Docket No ) 4. Respondent applied for a Pennsylvania license in 2000 because he was finishing up his fellowship at the time and was recruited to join a large cardiology group in Wormleysburg; however, he ultimately decided not to take the job and he has never practiced in Pennsylvania. (N.T. 23) 5. Respondent has been practicing as a cardiologist since July 2000 'and he has been practicing in Maryland since February (Exhibit R-1) 6. On November 18, 2010, the Maryland State Board of Physicians (Maryland Board) approved a Consent Order In the Matter of John P. Hakim, MD., Case Number (Exhibit C-1) 7. Based upon the Findings of Fact set forth in the Consent Order, the Maryland Board concluded as a matter *of law that Respondent engaged in unprofessional conduct in the practice of medicine, in violation of H.O (a)(3)(ii), willfully filed a false report or 2

6 record in the practice of medicine, in violation of H.O (a)(11), and willfully made a false representation when seeking or making application for licensure or any other application related to the practice of medicine, in violation of H.O (a)(36). (Exhibit C-1) 8. Based upon the Findings of Fact and Conclusions of Law set forth in the Consent Order, the Maryland Board ordered, in relevant part, that Respondent be reprimanded and further ordered that Respondent be placed on probation for a minimum of two years and until the following terms and conditions are fully and satisfactorily complied with: a. The Respondent shall continue counseling as recommended by the Board evaluator during the entire duration of the probationary period. The Board shall provide the Respondent's mental health care provider with a copy of the Consent Order in this case; and b. For the first year of probation, the Respondent will ensure that the Board receives monthly reports from the Respondent's mental health care provider as to his progress. After the first year of probation, the Respondent will ensure that the Board receives monthly reports from his mental health provider on a quarterly basis, unless notified by the Board that monthly reports will be required for the duration of the probationary period;... (Exhibit C-1) 9. Since May 13, 2010, Respondent has been attending weekly therapy sessions with Euthymia D. Hibbs, Ph.D., Clinical Psychologist. (N.T. 36; Exhibit 18) 10. Dr. Hibbs certified in writing that she has read the court orders issued by the Maryland Board; that Respondent is eager to participate in therapy and wants to improve; that Respondent has been attending without fail weekly sessions since May 13, 2010; and that Respondent is progressing in correcting the issues raised in previous assessments. (Exhibit R- 18)

7 11. Respondent was served with the OSC and all subsequent pleadings, orders and motions filed of record in this matter. (Docket No ) 12. Respondent appeared at the hearing and was represented by Miclael M. Badowski, Esquire, who presented Respondent's case through Respondent's testimony; the testimony of Thomas McCan, Sr.; and documentary evidence. (N.T ; Exhibits R-1 through R-33; Exhibit R-35).

8 CONCLUSIONS OF LAW 1. The Board has jurisdiction in this matter. (Findings of Fact, Nos. 1-2) 2. Respondent has been afforded reasonable notice of the charges against him and an opportunity to be heard in this proceeding, in accordance with the Administrative Agency Law, 2 Pa. C.S (Findings of Fact, Nos ) 3. Respondent is subject to disciplinary action under Section 41(4) of the Act, 63 P.S (4), in that disciplinary action was taken against his license to practice medicine by the proper licensing authority of another state, Maryland. (Findings of Fact, Nos. 6-8) 5

9 DISCUSSION The Commonwealth charged in the OSC that Respondent had disciplinary action taken against his license by the proper licensing authority of the state of Maryland, thereby subjecting him to disciplinary action in Pennsylvania under Section 41(4) of the Act, 63 P.S (4), which provides in relevant part as follows: Reasons for refusal, revocation,, suspension or other corrective actions against a licensee or certificate holder The board shall have authority to impose disciplinary or corrective measures on a board-regulated practitioner for any or all of the following reasons: * * * (4) Having a license or other authorization to practice the profession revoked or suspended or having other disciplinary action taken, or an application for a license or other authorization refused, revoked or suspended by a proper licensing authority of another state, territory, possession or country, or a branch of the Federal Government.. * * The Commonwealth's evidence at the hearing consisted of a certified copy of the Consent Order adopted by the Maryland Board on November 18, 2010 In the Matter of John P. Hakim, MD., Case Number , pursuant to which the Maryland Board ordered that Respondent be reprimanded and further ordered that Respondent be placed on probation for a minimum of two years during which he was required to continue counseling as recommended by the Maryland Board evaluator and he was required to ensure that the Maryland Board receives reports from Respondent's mental health care provider as to his progress. Accordingly, the 6

10 Commonwealth has met its burden of proof that Respondent is subject to disciplinary action. under section 41(4) of the Act, 63 P.S (4), in that disciplinary action was taken against his license to practice medicine by the proper licensing authority of the state of Maryland. The Commonwealth has met its burden of proof by a preponderance of the evidence with respect to the single count in the OSC and the only matter left to be determined is the appropriate sanction to be imposed. Under its enabling legislation, a licensing board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. Barran v. State Bd. of Medicine, 670 A.2d 765, 767 (Pa. Cmwlth. 1996), appeal denied, 679 A.2d 230 (Pa. 1996). The Board is authorized to impose disciplinary or corrective measures pursuant to Section 42 of the Act, 63 P.S , which provides as follows: Types of corrective action (a) Authorized actions. When the board is empowered to take disciplinary or corrective action against a board-regulated practitioner under the provisions of this act or pursuant to other statutory authority, the board may: (1) Deny the application for a license, certificate or any other privilege granted by the board. (2) Administer a public reprimand with or without probation. (3) Revoke, suspend, limit or otherwise restrict a license or certificate. (4) Require the board-regulated practitioner to submit to the care, counseling or treatment of a physician or a psychologist designated by the board. 2The degree of proof required to establish a case before an administrative tribunal in an action of this nature is a preponderance of the evidence.. Lansberry v. Pennsylvania hiblic Utility Commission, 578 A.2d 600, 602 (Pa. Cmwlth. 1990). A preponderance of the evidence is generally understood to mean that the evidence demonstrates a fact is more likely to be true than not to be true, or if the burden were viewed as a balance scale, the evidence in. support of the Commonwealth's case must weigh slightly more than the opposing evidence. Se-Ling Hosiery, inc. v. Margulies, 70 A.2d 854, 856 (Pa: 1949). The Commonwealth therefore has the burden of proving the charges. against Respondent with evidence that is substantial and legally credible, not by mere "suspicion" or by only a "scintilla" of evidence. Lansberry, 578 A.2d at

11 (5) Require the board-regulated practitioner to take refresher educational courses. (6) Stay enforcement of any suspension, other than that imposed in accordance with section 40, and place a board-regulated practitioner on probation with the right to vacate the probationary order for noncompliance. (7) Impose a monetary penalty in accordance with this act. maximum civil penalty of up to one thousand dollars ($1,000.00) for each violation of the Act is authorized under Section 39(b) of the Act, 63 P.S (b). In addition, a maximum civil penalty of up to ten thousand dollars. ($10,000.00) for each violation of the Act is authorized under Section 908 of the MCARE Act, 40 P.S In determining a sanction, the Board considers the seriousness of the violation and any mitigating evidence. The seriousness of Respondent's violation can be measured by the level of discipline imposed by the Maryland Board, namely.a reprimand and two years of probation subject to continued counseling and reports of that counseling. In mitigation of a sanction, Respondent testified extensively with respect to the factual basis surrounding his discipline in Maryland; he submitted documentary evidence in this regard; and he called as a witness Thomas McCan Sr., who acknowledged that he is the patient identified as Patient D in the Consent Order. Such evidence cannot be considered in this reciprocal disciplinary action because it constitutes an impermissible collateral attack on the Maryland Board's actions. This forum is not the appropriate place for such a challenge to another state's disciplinary action, as Pennsylvania's appellate courts have made clear in cases such as Johnston v. Commonwealth, State Bd. of Medical Educ. and Licensure, 410 A.2d 103 (Pa. Cmwlth. 1980). In Johnston, the Commonwealth court stated that:

12 ... petitioner's arguments concerning the procedural and substantive validity of the Washington Board's action are properly addressed, as petitioner has done, to the courts of the State of Washington. Since the Pennsylvania Board is acting on the fact of disciplinary action in another state rather than the underlying events leading to that action, the substance of the charges and the procedure utilized in their resolution must, for purposes of Section 15(a)(4), be considered immaterial. Id., 410 A.2d at 106 (emphasis in original). For that reason, the hearing examiner cannot consider any evidence, in this action,' that would. essentially constitute a response to the underlying charges in the Maryland disciplinary matter, and therefore such evidence cannot serve Respondent as mitigation in this matter. Also in mitigation of a sanction, Respondent presented evidence that he has gone above and beyond what was required by the Maryland Consent Order; he has made great progress in working on his personality issues; he is a very good physician; he has not imposed any harm on the citizens of Pennsylvania; and he does not plan to renew his inactive license but does not want to surrender it because of the legal consequences of a surrender. Respondent then requested that Pennsylvania take no action on his inactive license. The Commonwealth recommended that the Board mirror as closely as possible the Maryland Consent Order by placing Respondent's license on probation in Pennsylvania for a minimum of two years subject to the same terms and conditions contained in the Maryland Consent Order; that Respondent continue counseling for a period of two years; that Respondent ensure that the Board receives monthly reports from his treatment provider; and that at the end of the two years Respondent provide an evaluation from his treatment provider that he is fit to practice. Ater considering Respondent's mitigating 'evidence, the hearing examiner does not believe that a lesser sanction than that imposed by the Maryland Board is appropriate. In the same vein, however, the hearing examiner also does not believe that a more severe sanction is

13 warranted. The hearing examiner rejects the Commonwealth's recommendation for a period of probation which extends beyond his probationary period in Maryland. From a public protection standpoint, there is no need to extend Respondent's probationary period in Pennsylvania beyond the period of time which Maryland Considered sufficient for protection of the citizens in the state where Respondent actively practices. Consequently, Respondent's probationary period in Pennsylvania will run concurrently with his probationary period in Maryland and Pennsylvania citizens will be sufficiently protected by inclusion of a provision providing that a violation of Maryland's Consent Order will constitute a violation of Pennsylvania's probationary order, thereby triggering the indefinite suspension of Respondent's license in Pennsylvania. However, since the Maryland Board is in the best position to monitor Respondent's probationary requirements, Respondent will not be required to submit any reports in Pennsylvania unless he reactivates his license in Pennsylvania while he is on probation in Maryland.. Respondent's Pennsylvania license will also be reprimanded just as his Maryland license was reprimanded. Although Respondent has never practiced in Pennsylvania and has had an inactive license since December 20, 2002, he still holds a property right in his license and could reactivate it at any time. A public reprimand, which is commensurate with that portion of the discipline imposed in Maryland, will protect the public health and safety because it will alert the citizens of Pennsylvania to the fact that disciplinary action of a similar nature was taken against Respondent's license to practice medicine in Maryland and thus enable them to make informed decisions based upon that information. Accordingly, based upon the above findings of fact, conclusions of law and discussion, the following order shall issue: 10

14 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BEFORE THE STATE BOARD OF MEDICINE Comnionwealth of Pennsylvania, Bureau of Professional and ecupational Affairs Docket No v. File No John P. Hakim, M.D., Respondent ORDER NOW, thi day of February 2012, upon consideration of the foregoing findings of fact, conclusions of law and discussion, it is hereby ORDERED that the license to pratice medicine and surgery issued to Respondent, John P. Hakim, M.D., license no. MD071755L, shall be REPRIMANDED. It is further ORDERED that the license to practice medicine and surgery issued to Respondent is placed on PROBATION for a period to run concurrently with the probation placed on his license in Maryland In the Matter of John r. Hakim MD., Case Number Respondent's period of probation shall be subject to the following terms and conditions: GENERAL 1. Respondent shall abide by and obey all laws of the United States, the Commonwealth of Pennsylvania and its political subdivisions and all rules and regulations and laws pertaining to the practice of the profession in this Commonwealth or any other state or jurisdiction in which Respondent holds a license to practice the profession. Summary traffic violations shall not constitute a violation of this Order. 1

15 2. Any violation of Respondent's probation in Maryland In the Matter of John P. Hakim, MD., Case Number , shall constitute a violation of this Order. 3. Respondent shall at all times cooperate with the Bureau of Professional and Occupational Affairs and its agents and employees in the monitoring, supervision and investigation of Respondent's compliance with the terms and conditions of this Order, including requests for, and causing to be submitted at Respondent's expense, written reports, records and verifications of actions that may be required by the Bureau of Professional and Occupational Affairs. 4. Respondent shall not falsify, misrepresent or make material omission of any information submitted pursuant to this Order. 5. Respondent shall notify the Bureau of Professional and Occupational Affairs, in writing, within five (5) days of the filing of any criminal charges against Respondent, the initiation of any legal action pertaining to Respondent's practice of the profession, the initiation, action, restriction or limitation relating.to Respondent by a professional licensing authority of any state or jurisdiction or the Drug Enforcement Agency of the United States Department of Justice, any change in Respondent's disciplinary status in Maryland In the Matter of John P. Hakim, M.D., Case Number , or any investigation, action, restriction or limitation relating to Respondent's privileges to practice the profession at any health care facility. 6. Respondent shall notify the Bureau of Professional and Occupational Affairs by telephone within 48 hours and in writing within five (5) days of any change of Respondent's home address, phōne number, employment status, employer and/or change in practice at a health care facility. 2

16 Order, the Committee shall, without holding a formal hearing, issue a preliminary order terminating this probation and activating the indefinite suspension of Respondent's license. c. Respondent shall be notified of the Committee's preliminary order within three (3) business days of its issuance by certified mail and first class mail, postage prepaid, sent to the Respondent's last registered address on file with the Board, or by personal service if necessary. d. Within twenty (20) days of mailing of the preliminary order, Respondent may submit a written answer to the Commonwealth's Petition and request that a formal hearing be held concerning Respondent's violation of probation, in which Respondent may seek relief from the preliminary order activating the indefinite suspension. Respondent shall mail the original answer and request for hearing to the Department of State, Bureau of Professional and Occupational Affairs, Office of Prothonotary, 2601 North Third Street, P.O. Box 2649, Harrisburg, PA , and a copy to the prosecuting attorney for the Commonwealth, and shall do the same with all subsequent filings in the matter. e. If Respondent submits a timely answer and request for a formal hearing, the Board or a designated hearing examiner shall convene a formal hearing within forty-five (45) days from the

17 date of the Prothonotary's receipt of Respondent's request for a formal hearing. f. Respondent's submission of a timely answer and request for a hearing shall not.stay the indefinite suspension of Respondents license under the preliminary order. The indefinite suspension shall remain in effect unless the Board or the hearing examiner issues an order after the formal hearing staying the indefinite suspension and reactivating the probation. g. The facts and averments in this Order shall be deemed admitted and uncontested at this hearing. h. If the Board or hearing examiner after the formal hearing makes a determination against Respondent, a final order will be issued sustaining the indefinite suspension of Respondents license and imposing any additional disciplinary measures deemed appropriate. i. If Respondent fails to timely file an answer and request for a hearing, the Board, upon motion of the prosecuting attorney, shall issue a final order affirming the indefinite suspension of Respondents license. j. If Respondent does not make a timely answer and request for a formal hearing and a fmal order affirming the indefinite suspension is issued, or the Board or the hearing examiner makes a.determination against Respondent sustaining the indefinite suspension of Reipondent's license, after at least

18 ONE YEAR of ACTIVE SUSPENSION and any additional imposed_ discipline,. Respondent may petition the Board for reinstatement upon verification that Respondent has complied with the Board's order, abided by and obeyed all laws of the United States, the Commonwealth. of Pennsylvania and its political subdivisions, and all rules and regulations pertaining to the practice of the profession in this Commonwealth. k, Respondent's failure to fully comply with any terms of this Order may also constitute grounds for additional disciplinary action. 11, Nothing in this Order shall preclude the prosecuting attorney for the 'Commonwealth from filing charges or the Board from imposing disciplinary or corrective measures for violations or facts not contained in this Order. COMPLETION OF PROBATION 12. After Respondent has successfully completed his period of probation in Maryland In the Matter of John P. Hakim, MD., Case Number , and the Maryland Board has restored his Maryland license to unrestricted, non-probationary status, Respondent may petition the Board to reinstate Respondent's license in the Commonwealth to unrestricted, non-probationary status, without the need for a hearing unless the Board should deem it to be necessary, based upon an affirmative showing that Respondent has complied with all terms and conditions of this order and that his license has been restored to unrestricted, non-probationary status in the State of Maryland. Respondent shall be required to remain in compliance with all terms and 6

19 conditions of this order until the Board issues the order terminating Respondent's probationary status. This Order shall take effect twenty (20) days from the date of mailing shown below, unless otherwise ordered by the State Board of Medicine. RDER: McKeever g Examiner Prosecuting Attorney: Respondent's Attorney: Keith E. Bashore, Esquire Commonwealth of Pennsylvania GOVERNOR'S OFFICE OF GENERAL COUNSEL Department of State P.O. Box 2649 Harrisburg, PA Michael M. Badowsld, Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA Date of mailing: 7

20 NOTICE REHEARING AND/OR RECONSIDERATION BY BMARING EXAMINER.. A party may file an application to the'hearing :examiner for: Tehearing.or reconsideration within 15 days of the mailing date of this 'adjudication and order.. The :application must be captioned. "Application for Rehearing",."Application for Reconsideration", or "Application for Rehearing or Reconsideration". It 'musf state specifically and concisely, in numbered paragraphs, the. grounds relied upon- in seeking rehearing or reeonsideration, including any alleged error in the adjudication. If the adjudication is sought, to be vacated, reversed; or modified by reason of matters that have arisen sincethe hearing and decision, the matters relied upon_ by the petitioner roust be set ford): lathe applicaiion. 'APPEAD TO BOARD An application to the State Board of Medicine for review of the hearing examiner's adjudication and:order -must be filed by a: party within 20 days of the date of mailing of this. adjudication and order.. The application must be captioned."application for Reyiew". It must state specifically and concisely, in nnrnbere,ii paragraphs, the.grounds relied upon in seeking the Boa.rd'i review of the hearing. examiner's decisions 'including any alleged error in the.. adjudication. Within an application for review a Party May request that the Board hear additional. argument and fake additional evidence... "An application to the Board to review the hearing examiner's decision may be filed irrespective of whether an application to the hearing examiner for rehearing or reconsideration is filed. STAY OF leeearing'kxamcner.'s ORDER. Neither the filing of.an application for rehearing and/or reconsideration nor the filing of an application for review operates as a stay of the hearing examiner's order. To seek a stay of the. hearing examiner's order, the party must file an application for stay directed to the Board.. FIONGAND SERVICE. : An original and three, (3) copies of all applications shall be filed with. Prothonotary P.O. BOx 2549 ' - Harrisburg, PA A copy of all'applicntions must also be served on all parties... Applications must be received for filing by the Prothonotary ' within the f-n'a g. limits specified. The date of receipt at the office of Prothonotary, and not the date df deposit in the rnail is determinative The-filing of an application for rehearing and/or reconideration does not extend, or in any other manner 'affect, the time period in which an application for review may be filed-... Revised 9/09

21 . NOTICE..... The attached Final Order represent the final agency decision in this patter. Itmay be appef:ded to thi Commonwealth Court' of Pennsylvania by the filing of. a Petition Reviev with that Court within 30 days after the entry of 'the order in aboard-ince with the Pennsylvania Rules of Appellate Pr6pedpre. See Chapter 15 of the Pennsylvania Rules of..appepite -Procedure entitled "Judicial RevieW of Governmental Deterininzdons, Pa. RAT 1'501,156i. Please note: An order is entered on the date it is, mailed if you take ad appeal to the' Commonwealth Cotirt, you must serve the Board with a 'copy of your Petition for Review. The.agency eontact for receiving service -of such an appeil Board Sel P.O. Box 2649 Harrisburg, PA The name of the individual Board Oothisel is identified on the Final Cvrdzi, ', '..