~ac~amento fd>n«'yj.l/7 dy j:.1 ernestina...12 ernestina maria howell saxton, a c c us at i...

1 XAVIER BECERRA Attorney General of California

2 MATTHEW M. DAVIS Supervising Deputy Attorney General

3 STEVE DIEHL Deputy Attorney General

4 State Bar No. 235250 California Department of Justice

5 2550 Mariposa Mall, Room 5090 Fresno, CA 93721

6 Telephone: (559) 477-1626 Facsimile: (559) 445-5106

7 Attorneys for Complainant

FILED STATE OF CALIFORNIA

MEDICAL BOARD OF CALIFORNIA ~AC~AMENTO Fd>n«'yJ.l/7 20J.1_ dY _J:.1 . .J:Xft -i i-1 tz~.~.,z b- ANALYST

8

9

10

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

11 In the Matter of the Accusation Against: Case No. 800-2014-002731

12 ERNESTINA MARIA HOWELL SAXTON, A C C US AT I 0 N M.D.

13 2335 E Kashian Ln., Ste. 301 Fresno, CA 93701-2234

14

15 Physician's and Surgeon's Certificate No. G 52068,

16 Respondent.

17

18 Complainant alleges:

19 PARTIES

20 1. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official

21 capacity as the Executive Director ofthe Medical Board of California, Department of Consumer

22 Affairs (Board).

23 2. On or about March 19, 1984, the Medical Board issued Physician's and Surgeon's

24 Certificate Number G 52068 to Ernestina Maria Howell Saxton, M.D. (Respondent). The

25 Physician's and Surgeon's Certificate was in full force and effect at all times relevant to the

26 charges brought herein and will expire on August 31, 201 7, unless renewed.

27 \\

28 \\

1

(ERNESTINA MARIA HOWELL SAXTON, M.D.) ACCUSATION NO. 800-2014-002731

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.

4. Section 2227 of the Code states:

"(a) A licensee whose matter has been heard by an administrative law judge of the Medical

Quality Hearing Panel as designated in Section 113 71 of the Government Code, or whose default

has been entered, and who is found guilty, or who has entered into a stipulation for disciplinary

action with the board, may, in accordance with the provisions of this chapter:

"(1) Have his or her license revoked upon order of the board.

"(2) Have his or her right to practice suspended for a period not to exceed one year upon

order of the board.

"(3) Be placed on probation and be required to pay the costs of probation monitoring upon

order of the board.

"( 4) Be publicly reprimanded by the board. The public reprimand may include a

requirement that the licensee complete relevant educational courses approved by the board.

"( 5) Have any other action taken in relation to discipline as part of an order of probation, as

the board or an administrative law judge may deem proper.

"(b) Any matter heard pursuant to subdivision (a), except for warning letters, medical

review or advisory conferences, professional competency examinations, continuing education

activities, and cost reimbursement associated therewith that are agreed to with the board and

successfully completed by the licensee, or other matters made confidential or privileged by

existing law, is deemed public, and shall be made available to the public by the board pursuant to

Section 803.1."

5. Section 2234 ofthe Code, states:

"The board shall take action against any licensee who is charged with unprofessional

conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not

limited to, the following:

2


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

"(a) Violating or attempting to violate, directly or indirectly, assisting in or abetting the

violation of, or conspiring to violate any provision of this chapter.

"(b) Gross negligence.

"(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or

omissions. An initial negligent act or omission followed by a separate and distinct departure from

the applicable standard of care shall constitute repeated negligent acts.

"(1) An initial negligent diagnosis followed by an act or omission medically appropriate

for that negligent diagnosis of the patient shall constitute a single negligent act.

"(2) When the standard of care requires a change in the diagnosis, act, or omission that

constitutes the negligent act described in paragraph ( 1 ), including, but not limited to, a

reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs from the

applicable standard of care, each departure constitutes a separate and distinct breach of the

standard of care.

"(d) Incompetence.

"(e) The commission of any act involving dishonesty or corruption which is substantially

related to the qualifications, functions, or duties of a physician and surgeon.

"(f) Any action or conduct which would have warranted the denial of a certificate.

"(g) The practice of medicine from this state into another state or country without meeting

the legal requirements of that state or country for the practice of medicine. Section 2314 shall not

apply to this subdivision. This subdivision shall become operative upon the implementation of the

proposed registration program described in Section 2052.5.

"(h) The repeated failure by a certificate holder, in the absence of good cause, to attend and

participate in an interview by the board. This subdivision shall only apply to a certificate holder

who is the subject of an investigation by the board."

6. Section 2266 of the Code states: "The failure of a physician and surgeon to maintain

adequate and accurate records relating to the provision of services to their patients constitutes

unprofessional conduct."

\\

3


1

2

3 7.

FIRST CAUSE FOR DISCIPLINE

(Gross Negligence)

Respondent is subject to disciplinary action under section 2234, subdivision (b), in

4 that she engaged in acts of gross negligence. The circumstances are as follows:

5

6

8.

9.

Respondent is a neurologist who practices pain management.

The standard of care for pain management requires a medical history and physical

7 examination to include assessment of the patient's pain including physical and psychological

8 status and function, substance abuse history, and history of prior pain treatments and assessment

9 of underlying or co-existing conditions. Finally, it should include documentation of recognized

10 medical indications for the use of controlled substances such as opiates for pain control.

11 10. The standard of care for pain management requires that medical records contain

12 stated objectives that may include relief from pain or improved physical or psychological function

13 or ability to perform certain tasks or activities of daily living. This should also include any plans

14 for further diagnostic evaluations and treatments, such as a rehabilitation program.

15 11. The standard of care for pain management requires the medical records document that

16 the physician discussed the risks and benefits of the use of controlled substances along with other

17 treatment modalities. An actual written consent is not required but is recommended.

18 12. The standard of care for pain management requires that the medical records reflect

19 that the physician is periodically reviewing the course of pain management for the patient and

20 making appropriate modifications in the treatment based on the patient's progress or lack of

21 progress.

22 13. The standard of care for pain management requires that the physician consider

23 additional evaluations or consultations, especially with complex pain problems. Special attention

24 should be given to patients who are at risk for misusing their medications or have a history of

25 drug addiction or substance abuse. Such patients require extra care and monitoring along with

26 documentation and consultation with an addiction medicine specialist and pain management

27 specialist.

28

4


1 14. The standard of care requires that a physician maintain accurate and complete

2 records, demonstrating a history and exam along with evaluations and consultations, treatment

3 plans and objectives, informed consent, medications prescribed and periodic review

4 documentation.

5 15. The standard of care for pain management requires that a patient who is prescribed

6 controlled substances be monitored. Monitoring should occur at least once every three to six

7 months. More frequent monitoring may be necessary after initiation of therapy or changes in

8 opioid doses and in patients at higher risk for aberrant drug-related behaviors, those in an

9 occupation demanding mental acuity, and in older adults or patients with co-morbid medical

10 conditions. For patients at high risk for adverse outcomes, monitoring on a weekly or more

11 frequent basis may be required. Monitoring should routinely include the assessment and

12 documentation of pain severity and functional ability, progress towards achieving therapeutic

13 goals, presence of adverse effects, and presence of aberrant drug-related behaviors.

14 Circumstances Related to Patient K.H. 1

15 16. Patient K.H. is a 62 year old female with a history of chronic migraine, migraine with

16 aura, and rheumatoid arthritis. Between November 8, 2014, and October 27, 2015, this patient

17 presented to Respondent four times, for pain management. Throughout this period, Respondent

18 prescribed Norco2 10/325, 270 tabs per month. A daily dose is not documented, but at a stable

19 rate this patient would be taking 9 tabs per day. The patient was noted to have an increase in her

20 right hip pain on May 22,2015, and was referred for imaging where it was discovered that she

21 had advanced degenerative changes. Respondent then, on August 28,2015, prescribed

22 gabapentin. 3

23

24

25

26

27

28

1 Initials are used to protect patient privacy.

2 Norco is the brand name for the opiate hydrocodone combined with the analgesic acetaminophen. Norco 10/325 refers to a preparation containing 1 Omg hydrocodone and 325mg acetaminophen.

3 Gabapentin is an anti-convulsant medication that is used to treat neurological pain.

5


1 17. With respect to patient K.H., between November 8, 2014, and October 27, 2015,

2 Respondent failed to monitor the patient's compliance. Respondent failed to perform any urine

3 drug testing and failed to review the patient's CURES4 report during this period. Instead,

4 Respondent relied on the patient's pharmacist to report any compliance problems. This failure to

5 monitor the patient, and reliance on a pharmacist to perform this task, represents an extreme

6 departure from the standard of care.

7 Circumstances Related to Patient L.H.

8 18. Patient L.H. is a 42 year old female with diagnoses of migraine with aura; back pain;

9 lumbosacral spondylosis; neck, shoulder, and arm pain; and repetitive strain injury. Respondent

10 took over care for this patient in 2004 from another provider who had prescribed 9 Norco per day

11 at age 33 for some lumbar spinal stenosis and right L3 radiculopathy. Respondent continued to

12 treat this patient with opiates, and noted on March 28, 2011, that she did not believe this patient

13 was exhibiting signs of opiate induced hyperalgesia (OIH.)5 Respondent gradually increased this

14 patient's opiate prescription to a peak of 1500 mg Oxycontin6 and 540 mg Roxycodone7 per day.

15 On May 21,2012, Respondent documented for the first time that she needed to monitor the

16 patient for OIH. On August 28, 2012, Respondent discussed OIH with the patient. Respondent's

17 last documented contact with the patient was dated November 30, 2012, at which time she

18 documented a plan to monitor the patient and consider lowering her opiate intake.

19 19. Although Respondent periodically reviewed this patient's treatment, she failed to

20 make changes to the patient's opiate regimen despite her suspicion of OIH. This failure

21 represents an extreme departure from the standard of care.

22

23

24 4 Controlled Substance Utilization Review and Evaluation System, a database maintained

by the State of California containing information regarding controlled substance prescriptions.

25 5 OIH is a condition of increased pain resulting from a large intake of opiates.

26 6 Oxycontin is the brand name for the opiate oxycodone.

27 7 Roxycodone is the brand name for a preparation of 15mg oxycodone.

28

6


1 20. Respondent failed to document this patient's medication regimen in any progress

2 note. The only documentation in this patient's record of the medication she was taking was in

3 forms she filled out herself. Respondent's failure to document what the patient was taking


5 21. Although the standard of care for pain management, at the time this patient was being

6 treated, did not require review of CURES in every case, the very large quantity of opiates this

7 patient was being prescribed required more aggressive compliance monitoring. Respondent's

8 failure to monitor this patient's CURES represents an extreme departure from the standard of

9 care.

10 22. Respondent prescribed very large quantities of opiates to this patient. Respondent

11 failed to document a diagnosis that would justify an opiate intake of this volume. This failure


13 Circumstances related to A.W.

14 23. Patient A.W. is a 42 year old male with failed back syndrome, post-laminectomy.

15 Between October 4, 2011, and August 28,2015, Respondent prescribed Oxycontin 80mg, 12 tabs

16 per day; Oxycodone 30mg, 10 tabs per day; Norco 10/325 one tab per day; Valium 10mg 1 tab

17 per day; Soma 350mg 9 tabs per day; and gabapentin.

18 24. Between October 4, 2011, and August 28,2015, Respondent failed to assess this

19 patient's previous substance abuse or psychiatric history, failed to assess underlying or co-

20 existing diseases, and failed to perform any physical examination to support a diagnosis of failed

21 back, post-laminectomy. This failure to document a history and physical examination over a

22 treatment period of nearly four years represents an extreme departure from the standard of care.

23 25. Between October 4, 2011, and August 28, 2015, Respondent failed to review this

24 patient's CURES or perform any urine drug screen. This failure to monitor the patient represents

25 an extreme departure from the standard of care.

26 26. Respondent prescribed very large quantities of opiates to this patient. Respondent

27 failed to document a diagnosis that would justify an opiate intake of this volume. This failure


7


1 Circumstances related to M.S.

2 27. Patient M.S. is a 55 year old male. He first presented to Respondent on or about

3 March 26, 2008, with intractable migraine without aura, and a history of C4-C7 fusion.

4 Respondent treated this patient for pain through at least March 17, 2012. However, Respondent

5 states that her records for this patient were lost, other than the documentation related to visits on

6 March 26, 2008, and March 17, 2012.

7 28. Respondent's failure to maintain records documenting her treatment of this patient


9 Circumstances related to J.N.

10 29. Patient J.N. is a 52 year old female who reported being injured in a fall, and having

11 had a C5-C6 fusion. Between August 23, 2012, and November 23, 2013, she presented to

12 Respondent five times, for pain management. During this period, Respondent prescribed

13 Oxycontin 80mg four tabs per day, Norco 10/325 four tabs per day, oxycodone 30mg four tabs

14 per day, Soma 350mg three tabs per day, and Diazepam8 10mg three tabs per day. Subsequently,

15 Respondent began to discuss tapering these medications as a result of suspected OIH, and after

16 receiving her prescriptions, the patient did not return.

17 30. Respondent failed to document any pain agreement or informed consent discussion.

18 This represents an extreme departure from the standard of care.

19 31. This patient was morbidly obese. Respondent prescribed high doses of opiates, in

20 combination with Diazepam. These medications lower the respiratory rate and in combination

21 are very dangerous in an obese patient. Respondent failed to counsel this patient regarding

22 weight loss, or to utilize non-opiate medications in this patient. These failures represent an

23 extreme departure from the standard of care.

24 \\

25

26

27

28

8 Diazepam is a benzodiazepine, first marketed as Valium, that has a sedative effect. It is commonly used to treat anxiety, seizures, and insomnia.

8

(ERNESTINA MARIA HOWELL SAXTON, M.D.) ACCUSATION NO. 800-2014-00273 I

1 Circumstances related to W .F.

2 32. Patient W.F. was a 51 year old male seeing Respondent for "total body pain."

3 Between January 5, 2010, and October 27,2011, this patient presented to Respondent on a

4 roughly monthly basis for pain management. During this period, Respondent prescribed

5 Oxycontin 120mg twice per day, with an additional mid-day dose of 80mg, as well as oxycodone

6 45mg three times per day.

7 33. During this period, the patient underwent multiple hospitalizations for a variety of

8 serious medical conditions, including Chronic Obstructive Pulmonary Disease (COPD),

9 spontaneous bacterial peritonitis, renal failure, lung cancer, and various bacterial infections

10 including Methicillin-resistant Staphylococcus aureus (MRSA.) The patient died on October 30,

11 2011. The autopsy report noted multiple bandages on the patient's extremities, covering small

12 superficial wounds consistent with self-administered injections. The toxicology report noted a

13 fatal concentration of morphine.

14 34. Respondent failed to document any history reflecting this patient's many medical

15 problems, other than pain. Nor did respondent document a physical examination showing any

16 skin abnormalities as noted in the autopsy report. These failures to obtain an adequate history and

17 physical examination represent an extreme departure from the standard of care.

18 35. Respondent failed to develop a treatment plan for this patient that took into account

19 his many significant medical problems. Her failure to develop a treatment plan for a severely and

20 chronically ill patient represents an extreme departure from the standard of care.

21 36. Respondent failed to consult with any of this patient's other treating physicians,

22 despite his multiple hospitalizations. This failure to seek appropriate consultation represents an

23 extreme departure from the standard of care.

24 37. Respondent's records do not address any of this patient's medical comorbidities. Her

25 records are therefore incomplete and inaccurate. This represents an extreme departure from the

26 standard of care.

27 38. Respondent failed to monitor this patient through a review of CURES, urine drug

28 screens, or pharmacy reports. This represents an extreme departure from the standard of care.

9


1 SECOND CAUSE FOR DISCIPLINE

2 (Repeated Negligent Acts)

3 39. Respondent is subject to disciplinary action under section 2234, subdivision (c), in

4 that she engaged in repeated negligent acts. The circumstances are set forth in paragraphs 8

5 through 38, above, which are incorporated here by reference as if fully set forth. Additional

6 circumstances are as follows:

7 Additional Circumstances Related to Patient K.H.

8 40. Respondent documented a history and physical examination of patient K.H., but none

9 of her findings support a diagnosis of rheumatoid arthritis. Typical findings would include joint

10 pain and swelling, morning stiffness and decreased grip strength, none of which were documented

11 by Respondent. Respondent failed to document a history of this patient's migraine management,

12 such as medications tried and failed. In particular, triptans are the most commonly used

13 medication for treatment of migraine, but Respondent failed to document whether triptans had

14 been tried with this patient. Respondent failed to document this patient's psychological status and

15 function, and substance abuse history. These failures represent departures from the standard of

16 care.

17 41. Respondent failed to develop a long term treatment plan for this patient. Respondent

18 developed a short term treatment plan for management of hip pain, but this plan was

19 inappropriate for treatment of the patient's migraine. Opiates are known to exacerbate migraine,

20 and can cause episodic migraine to become chronic. Respondent's failure to develop an

21 appropriate treatment plan for this patient represents a departure from the standard of care.

22 42. Respondent failed to document any informed consent discussion or opioid agreement.

23 This failure represents a departure from the standard of care.

24 43. This patient presented to Respondent for appropriate periodic review of her treatment,

25 but Respondent failed to make appropriate modifications to her treatment based on this periodic

26 review. Each such failure represents a departure from the standard of care.

27 44. Respondent prescribed large quantities of Norco, which contains acetaminophen. If

28 the patient took all medications as prescribed, she would have risked fatal liver damage.

10


1 Respondent's failure to account for the quantity of acetaminophen she prescribed represents a


3 Additional Circumstances Related to Patient L.H.

4 45. Respondent failed to document an adequate history and physical examination of

5 patient L.H. Respondent failed to document a neck or back examination, despite the patient's

6 complaints of back pain, lumbosacral spondylosis, and neck and shoulder pain. Respondent

7 failed to document the patient's psychological history or substance abuse history. Respondent's

8 failures to fully document this patient's medical issues that support her opiate prescriptions, and to

9 document her psychological and substance abuse history, represent departures from the standard

10 ofcare.

11 46. Patient L.H. signed a pain contract with a prior treating physician in 2004. This

12 contract was not re-signed when Respondent took over the patient's care. Respondent's failure to

13 readdress the opioid contract when assuming responsibility for this patient represents a departure

14 from the standard of care.

15 47. In light ofthe high opiate dosage patient L.H. received from Respondent, Respondent

16 should have considered referral to an addiction specialist or psychiatrist. Respondent's failure to

17 consider the possibility of addiction in this patient, and to address this possibility through an

18 appropriate referral, represents a departure from the standard of care.

19 Additional Circumstances related to A. W.

20 48. Respondent modified patient A.W.'s treatment regimen during the course ofher

21 treatment, by removing dilaudid and adding gabapentin. However, Respondent failed to

22 document any functional assessment, goals of care, or reasons for the changes in medication.

23 Respondent's failure to substantively document the rationale for her changes in treatment, and to

24 state the goals of that treatment, constitutes a departure from the standard of care.

25 49. Respondent failed to consult with an addiction medicine specialist or pain

26 management specialist, despite prescribing large quantities of opiates to patient A.W.

27 Respondent's failure to seek appropriate consultation in her care of this patient represents a


11


1 50. Respondent's records for patient A.W. were few, handwritten, and difficult to read.

2 Respondent's recordkeeping for this patient represents a departure from the standard of care.

3 Additional Circumstances related to J.N.

4 51. Respondent documented discussion ofOIH on August 23, 2012; May 24, 2013;

5 August 23, 2013; and November 23, 2013; and she documented consideration oftapering patient

6 J .N.' s opiate intake. However, Respondent failed to act on her suspicion of OIH. Respondent

7 performed periodic review of this patient's care, and noted a problem, but failed to take action.

8 This represents a departure from the standard of care.

9 Additional Circumstances related to W .F.

10 52. Respondent performed a periodic review of her care of patient W .F., and altered his

11 medication regimen on June 16,2011, and again on October 27,2011. However, Respondent

12 failed to document the patient's function, his progress, or why she was changing his medication

13 dosages. These failures represent departures from the standard of care.

14 Circumstances related to K.S.

15 53. Patient K.S. is a 41 year old female who saw Respondent between January 27, 2012,

16 and July 29, 2014, with diagnoses ofPseudotumor cerebri, chronic migraine, torticollis,

17 trigeminal neuralgia, and neck pain. Among other medications, Respondent prescribed Norco

18 10/325,30 tabs with three refills, for a total of90 tabs, in January 2013, and again in January

19 2014. The patient attempted to obtain a refill prescription on October 31, 2014, without a face to

20 face visit with Respondent. Respondent denied this request, requiring the patient to make an in-

21 person visit. The patient then stated she would contact her primary care physician to request a

22 referral to a different neurologist.

23 54. Respondent failed to document at any time that she prescribed Norco to this patient.

24 Respondent documented on March 9, 2012, that Vicodin was prescribed as a medication for

25 rescue, but Respondent did not note who prescribed the Vicodin or the dosage. Respondent failed

26 to document any assessment of the patient's suitability for opiates, a treatment plan or goals of

27 care regarding opiate use, or compliance monitoring. These failures represent departures from the

28 standard of care.

12

(ERNESTINA MARIA HOWELL SAXTON, M.D.) ACCUSATION NO. 800-20I4-002731

1 THIRD CAUSE FOR DISCIPLINE

2 (Recordkeeping)

3 55. Respondent is subject to disciplinary action under section 2266 in that she failed to

4 maintain adequate and accurate medical records. The circumstances are set forth in paragraphs 8

5 through 54, which are incorporated here by reference as if fully set forth.

6 PRAYER

7 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

8 and that following the hearing, the Medical Board of California issue a decision:

9 1. Revoking or suspending Physician's and Surgeon's Certificate Number G 52068,

10 issued to Emestina Maria Howell Saxton, M.D.;

11 2. Revoking, suspending or denying approval ofEmestina Maria Howell Saxton, M.D.'s

12 authority to supervise physician assistants, pursuant to section 3527 of the Code;

13 3. Ordering Emestina Maria Howell Saxton, M.D., if placed on probation, to pay the

14 Board the costs of probation monitoring; and

15

16

4.

17 DATED:

18

19

20

21

Taking such other and further action as deemed necessary and proper.

February 17, 2017

Executive Dire tor Medical Board of California Department of Consumer Affairs State of California Complainant

FR20 16302590 22 9521 0205.docx

23

24

25

26

27

28

13


~ac~amento fd>n«'yj.l/7 dy j:.1 ernestina...12 ernestina maria howell saxton, a c c us at i...

Documents