BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against: ) )

RAMTIN TOM MASSOUD!, M.D. ) )

Physician's and Surgeon's ) Certificate No. A82557 )

) Respondent )

) ~~~~~~~~~~~~~)

Case No. 800-2015-015839

OAH No. 2018060364

ORDER DENYING PETITION FOR RECONSIDERATION

The Petition filed by Deputy Attorney General Brian D. Bill, for the reconsideration of the decision in the above-entitled matter having been read and considered by the Medical Board of California, is hereby denied.

This Decision remains effective at 5:00 p.m. on June 17, 2019.

DCU7 1(Rov01-2019)

IT IS SO ORDERED: June 17, 2019~

/alfflk OIMKr-Kristina LawsOnJJDIChair PanelB

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against: ) ) ) ) ) )

RAMTIN TOM MASSOUD!, M.D.

Physician's and Surgeon's Certificate No. A82557

) )

MBC No. 800-2015-015839

OAH No. 2018060364

ORDER GRANTING STAY

(Government Code Section 11521) ----------=R:..::..es=p=--=o=n=d-=en=t'----- )

Deputy Attorney General Brian D. Bill, has filed a Request for Stay of execution of the Decision in this matter with an effective date of June 7, 2019, at 5 p.m.

Execution is stayed until June 17, 2019, at 5:00 p.m.

This stay is granted solely for the purpose of allowing the Board time to review and consider the Petition for Reconsideration.

DATED: June 4, 2019

DCU94 (Rev 01-20i9)

Kimberly K chrneyer Executive Duector Medical Board of California

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS ST ATE OF CALIFORNIA

In the Matter of the Accusation Against:

RAMTIN TOM MASSOUD!, M.D.

Physician's and Surgeon's Certificate No. A82557

) ) ) ) ) ) ) )

~~~~~~~~~~R=e=sp~o=n=d=e=nt~~~-)

MBC No. 800-2015-015839

OAH No. 2018060364

ORDER GRANTING STAY

(Government Code Section 11521)

Deputy Attorney General Brian D. Bill, has filed a Request for Stay of execution of the ·Decision in this matter with an effective date of May 9, 2019, at 5 p.m.

Execution is stayed until June 7, 20i9, at 5:00 p.m. ·

This stay is granted solely for the purpose of allowing the Complainant time to file a Petition for Reconsideration.

DATED: · May 7, 2019

OCU96 (Rr,v 01 ·2019)

BEFORE THE MEDICAL BOARD OF CALIFORNIA

'DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation ) Against: )

) )

RAMTIN TOM MASSOUD!, M.D.) Case No. 800-2015-015839

Physician's and Surgeon's Certificate No. A82557

Respondent

) ) ) ) )

OAH No. 2018060364

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 May 9, 2019.

IT IS SO ORDERED April 9, 2019.

By:

ICAL BOARD OF CALIFORNIA

Kristina Lawson, JD, Chafr Panel B

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusatiop Against:

RAMTIN TOM MASSOUD!, M.D;,

Physician's and Surgeon's Certificate No. A82557,

Respondent.

Case No. 800-2015-015839

OAI-I No. 2018060364

PROPOSED DECISION

Administrative Law Judge Carla L. Garrett, Office of Administrative Hearings, heard. this matter on January 22 through 25, 2019, at Los Angeles, California.

Brian Bill, Deputy Attorney General, represented Complainant Kimberly Kirchmeyer, Executive Director of the Medical Board of California (Board). Nicholas Jurkowitz, Attorney at Law, represented Ramtin Tom Massoudi, M.D. (Respondent), who was pre.sent at hearing.

On· January 22, 2019, Complainant moved for a protective order requesting that all exhibits containing the name and private information of the subject patient in this matter be placed under seal because the documents .contain confidential information that is protected from disclosure to the public. Redaction of the documents to obscure this· information was not practicable and would not have provided adequate privacy protection. Respondent did · not oppose Complainant's motion. The ALJ granted the motion and issued a Protective Orderplacingexhibits2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13,B, andCunderseal, as they contained confidential information. Exhibits 2, 3, 4, 5, 6, 7, 8, 10, 11, 12; 13, B, and C shall remain under seal and shall not be opened, except as provided by the Protective Order. A reviewing court, parties to this matter, their attorneys, and a government agency decision­maker or designee under Government Code section 1151 7 inay review the documents subject to the Protective Order, provided that such documents are protected from release to the public.

Oral and documentary evidence was received, the record was closed, and the matter was submitted for decision on January 25, 2019. .

FINDINGS OF FACT

I. Complainant filed the Accusation in her official capacity as Executive Direc.tor of the Board.

2. . The Board issued Physician's and Surgeon's Certificate Number A 82557 to Respondent on April 4, 2003. The ce11ificate is renewed and current with an expiration date of August 31, 2020.

Background Summary

3. On July 27, 2015, the Board received a complaint alleging that Respondent had recommended unnecessary surgical procedures for Patient PY. 1 The B~ard initiated an investigation which included a review of Patient PY' s medical records, an interview of Respondent, and a review by a medical consultant. The Board sent the matter to its expert, Theodore Teruya, M.D., a board·certified vascular surgeon, to make a determination whether Respondent departed from the standard of care in relation to his care and treatment of Patient PY.

Patient PY

4. On March 18, 2015, Patient PY, who was a 92·year·old woman, and her son, visited Respondent's office in order for Patient PY to receive a consultation regarding her legs . Patient PY, who had suffered knee problems for years, began experiencing pair:t in both of her legs, and sought consultation from Respondent to address her problematic legs. An ultrasound technician in Respondent's office performed a duplex ultrasound on Patient PY, which evaluated the blood flow through the veins and arteries of Patient PY's legs. Respondent found that the results of the ultrasound revealed that Patient PY suffered from " bilateral greater and small saphenous vein reflux," .corisidered venous reflux disease or venous insufficiency, which affects circulation of blood in the lower extremities. Specifically, blood fails to travel from the legs to the heart, resulting in blood pooling in the legs. The ultrasound also revealed a "perforator" with reflux, meaning that blood traveling from the superficial veins through the perforator to the deep veins began backing up.

5. Respondent diagnosed Patient PY with reflux in the great and lesser saphenous vein in both legs and a perforator in the right calf. According to the Accusation, Respondent recommended laser ablation surgery2 on each of the four refluxing saphenous vein segments and two perforators, a total of six surgeries to resolve her leg issues. Respondent denied

The patient is identified by her initials to protect her privacy.

_________ 2 _ _ _Laseuililation s.urgecy-iS-a.-minimally invasi¥e-pr-0cedu1:e-oesignW-t-0 corrnG-t------­venous reflux disease perfo1med under local anesthesia, using a laser fiber on the refluxing vein to close the vein permanently.

2

recommending six surgeries, but rather stated that he educated the patient regarding ablation procedures, among other things, to resolve five vein issues.

6. Neither Patient PY, nor her son who was present with Patient PY at her visit with Respondent, testified at hearing.

Dr. Wayne S. Gradman

7. On May 11 , 2015, Patient PY sought a second opinion from Dr. Wayne S. · Gradman. Dr. Gradman, who testified at hearing, has been licensed to practice in California _since 1972. He started his vascular surgery practice in 1976, and first introduced radiofrequency ablation in 1994. Dr. Gradman was trained as a vascular surgeon and then about 10 years ago, he. transitioned to an all venous practice. Dr. Gradman retired in March 2018. By 2000, he performed more than 5000 surgical vein cases; and between 2000 and 2008, he completed between 500 and 1000 surgeries. In all, Dr. Gradman has performed between 10,000 and 11 ,000 vein surgeries.

8. Dr. Gradman earned his medical degree from Harvard Medical School in 1968 and performed surgical residencies at the University of California at Los Angeles Medical Center and at Cedars-Sinai Medical Center, from 1969-1970 and 1972-1975, respectively. Dr. Gradman also performed a fellowship in peripheral vascular surgery at Cedars-Sinai Medical Center, from 1975-1976. He is board-ce1tified in general vascular surgery, general . surgery, and phlebology. Dr. Gradman is also a registered vascular technologist and a radiography and fluoroscopy x-ray supervisor and operator. Dr. Gradman testified that he has been performing ultrasounds since they were first introduced in the 1970s. ·

9. Dr. Gradman has published approximately 20 peer-reviewed papers, four book chapters, and 40 abstracts. Approximately three papers focused on ablations and approximately 10 focused on venous diseases. Additionally, Respondent has made approximately 30 presentations, and have been invited to give more than 20 local, regional, national, and international lectures.

10. Patient PY came to Dr. Gradman's office for a second opinion concerning her "paresthesias" (i.e., tingling or "pins and needles" sensation) and throbbing in both legs that she had been experiencing for several months. Patient PY had a history of right knee problems and had previously undergone hea1i valve replacement and the placement of pacemaker. Patient PY provided Dr. Gradman with a copy of her medical records from Respondent regarding her March 18, 2015 visit and consultation, and told Dr. Gradman that Respondent recommended she ablate all four of her saphenous veins and two perforator ve ins, and to follow up those ablations with six sessions of sclerotherapy. Dr. Gradman noted that Patient PY did not have a history of venous disease or varicose veins.

reflux in the saphenous vein, usually for symptomatic varicose veins; but occasionally for . chronic venous insufficiency, which can manifest clinically as painful edematous legs with

3

or without an ankle ulcer. Dr. Gradman conducted a superficial examination and noted that Patient PY had no varicose veins, no ulcers, and no edema (i.e., fluid retention). However, Patient PY indicated on her health history form which was completed in Dr. Gradman's office, that one of the medications that she took was furosemide, which is a diuretic used to treat fluid retention and swelling caused by congestive heart failure, liver disease, kidney disease, and other medical conditions. On cross-examination, Dr. Gradman acknowledged that furosemide is given to address edema and admitted that he did not discuss with Patient PY her reason for taking furosemide.

12. Dr. Gradman also perfonned an ultrasound examination and found no reflux in any of the four saphenous veins or perforator veins. Dr. Gradman testified that he found no pathology whatsoever after examining both Patient PY's surface and deep veins. During the ultrasound, he checked the size of Patient PY's veins, the integrity of the vein walls, wh~ther the veins previously or currently had blood clots, and whether the valves worked properly. Dr. Gradman did not record the size of Patient PY's veins, because he did not make it his practi_ce to record veins that were three millimeters or smaller, as such sizes were considered normal. Dr. Gradman found no evidence of thickening of Patient PY's vein walls, and saw no problems with her valves.

13. Dr. Gradman concluded that Patient PY's symptoms were not due to venous . disease, but were due to neurological issues. He noted that Patient PY had been taking gabapentin, which is a drug designed to relieve· peripheral neuropathy (i.e., weakness, numbness, and pain from nerve damage). Given these factors, Dr. Gradman recommended that Patient PY consult her neurologist.

14. Dr. Gradman reviewed the medical records prepared by Respondent and saw that Respondent had diagnosed Patient PY with severe chronic venou~ insufficiency due to venous reflux. Dr. Gradman explained that, in his experience, most patients with this condition have deep vein thrombosis, varicose veins, venous reflux, and edema. Because Patient PY had none of those conditions were present during his examination of Patient PY, Dr. Gradman rejected Respondent's diagnosis .

15. Dr. Gradman also reviewed Respondent'.s ultrasound findings. He noted that Respondent found Patient PY's veins to be abnormally large, approximately three times the size that Dr. Gradman observed, and reflux in four veins. Dr. Gradman rejected Respondent's ultrasound findings and testified that severe chronic venous insufficiency does not resolve on its own. As Patient PY did not present with those conditions during his examination, he concluded that Patient PY had not suffered from such a condition when she was initially examined by Respondent.

16. Dr. Gradman also rejected Respondent's recommendation that Patient PY undergo saphenous vein treatment, specifically laser ablations, because such treatment is

------~ppmpriate_fu.Lthuse with veonus reflux,_whlc.h.E.atient PY didno.t__h.aye_._J).Lr.,_,G......._.ra"""d.,.,mUJa;.u.n"'-fi.u.oJ.\.l..L""------­it unconscionable and "unjustified" that anyone would recommend ablation treatments for Patient PY, a 92-year-old woman with a history of a cardiac valve replacement, a pacemaker,

4

and who was taking blood thinners. Consequently, Dr. Gradman wrote a letter to the Board on June 30, 2015 in support of Patient PY's complaint to the Board concerning Respondent.

Investigation

17. The Board initiated an investigation. Pursuant to the Board's request, Respondent provided the Board a certified copy of PatientPY's medical records . Respondent also submitted a February 10, 2016 letter summarizing his care of Patient PY. Spedfically, Respondent stated that Patient PY complained of severe leg pain, swelling in the legs, throbbing and heaviness, and muscle cramps. Respondent recommended that Patient PY undergo an ultrasound of her legs to determine the cause of her symptoms. Respondent explained that the ultrasound revealed that Patient PY had venous insuffkiency in both legs, and that her left leg was positive for superficial vein thrombosis, causing wall thickening, pain, and discomfort. Respondent stated that he explained to Patient PY the specific veins that were causing her pain, and recommended that Patient PY use the compression stockings he had pres.cribed, 3 among other things, a·nd instructed Patient PY to return in one month to see if Patient PY' s pain and discomfort had diminished. Respondent testified that Patient PY never returned.

Complainant's Expert: Theodore Teruya, J:1.D.

. . 18. Dr. Theodore Teruya testified as Complainant 's expert witness. Dr. Teri.Jya is

a board-certified vascular surgeon who has been licensed to practice in California since Jµne 1, 2000, and in Hawaii since September 17, 1999. He earned his bachelor 's degree in biology from Occidental College in 1991 , and his medical degree from University of Hawaii

. John A. Burns School of Medicine in 1995. He completed an internship in general surgery at Baylor University Medical Center in 1996, and completed his residency in general su·rgery at the University of Hawaii Integrated Surgical Residency in 2000. br. Teruya also completed a fellowship in vascular surgery at Loma Linda Univers ity Medical Center in 2001, and a " mini-fellowship" in endovascular surgery at Southern Illinois University from October 2001 to December 200 l .

19. Dr. Teruya serves as an associate professor of cardiovascular and thoracic surgery at Loma Linda University. He has published more than 25 peer-review articl.es, including articles regarding ablations, and has written four separate book chapters.

20. Dr. T eruya has served as a physician at the Loma Linda VA Medical Center for the last 12 years. His practice focuses primarily on vascular surgery, which constitutes approximately 85 to 90 percent of his practice. The remainder of his practice is general surgery. He has performed hundreds of venous surgeries.

3 The record is not clear whether Respondent prescribed compression stockings of a different grade than those Patient PY had been using. ·

5

21. Dr. Teruya has served as an expert reviewer for the Board for a significant period of time and has generated approximately 15 reports. He also serves as a reviewer for medical necessity companies to dete1mine whether medical treatment is medically necessary.

. I

In that capacity, he has reviewed hundreds of venous ablation cases. __ ·

22. Dr. Teruya reviewed Patient PY' s medical records created by both Respondent and by Dr. Gradman. He also reviewed Respondent's interview transcript and the complaint Patient PY submitted to the Board, and prepared a written repori dated .October 5, 2017; Dr. Teruya noted that Patient PY had presented at Respondent's office with pain and tingling in her bilateral lower extremities, and that Respondent performed an ultrasound which demonstrated bilateral greater and small saphenous vein reflux, as well as a perforator with reflux in the right lower extremity.

23. Dr. Teruya noted that the standard of care in this clinical situation was to offer no treatment. He explained that Patient PY had no symptoms that were· conclusively related to venous disease or venous insufficiency disease, and that Respondent should have ruled out other causes of her leg symptoms. He concluded that Respondent's proposed treatment for Patient PY was medically unnecessary and excessive.

24. Dr. Teruya stated that the treatment of a vein without reflux is a deviation from the standard of care, but noted that the ultrasound performed at Respondent's office demonstrated reflux. Nevertheless, he considered Respondent's proposed treatment of the small saphenous veins bilaterally and the perforator vein to be excessive, because current literature showed that the majority of patients would "achieve good to excellent relief of their symptoms following ablation of the dominant refluxing vein in the leg." (Exhibit 12, page AGO 186.) Dr. Teruya explained that in this case, the dominant refluxing vein was the greater sa:phenous vein, but that Respondent's recommended treatment seemed to be "driven by a supposition that every identifiable site of reflux and every varicose in the leg need[ed] to be treated. There is no objective or evidence-based support for this supposition in the literature." (Ibid.) He also stated the following:

(Ibid.)

The greater saphenous vein should be treated and the patient should be assessed after this procedure. It is important to determine if the small saphenous vein still has reflux as ablation of the greater saphenous vein has been shown to eliminate reflux in the other veins. Finally, it should be determined if the patient still has symptoms, as ablation of the greater .saphenous vein can resuit in complete resolution of symptoms. For this reason, the small saphenous veins were not medically necessary and excessive.

25. Dr. Teruya stated Respondent's proposed perforator ablation was also a -----~~tioliiro.m_the_s.t.aruiar.cloLc.a~Pk-Cific..allx.,J2r. Tern.ya stated tbat "the treatment of

perforators in this clinical scenario is not the standard of care based on the medical · literature." (Ibid.) He noted that the Society of Vascular Surgery/American Venous Form

6

guidelines "recommend against selective treatment ofincmnpetent perforating veins in patients with simple varicose veins (CEAP class 2)." (Ibid.) Dr. Teruya also stated that . these guidelines are "the definitive guide for the treatment of venous disease. Any treatment that is outside of the guidelines is not standard." (Id. at page AGO 187.)

26. Dr. Teruya concluded ·that Respondent's proposed treatment demonstrated a · lack of knowledge. He noted that Respondent was never formally educated or trained in venous disease, and his only education was a few days of shadow training.

27. At hearing, Dr. Teruya testified that Respondent's proposed treatment constituted an extreme departure from the standard of care. He also testified that the ultrasound performed in Respondent's offlc.e was inaccurate and constituted an extreme departure from the standard of care. With venous ablations, there is a risk of nerve injury, infection, and of deep vein thrombosis (i.e., blood clot), or a pulmonary embolism (i.e., blood clot that travels to the lungs), that can be fatal. He explained that based on the overall physical state and history of Patient PY, her complaints did not warrant the amount of treatment that Respondent proposed. Dr. Teruya testified that in older patients, conservative management, such as elevating thei.r legs, is more appropriate.

;?,8. Dr. Teruya noted that Respondent's records showed that Patient PY had used compression stockings, but that the stockings were not helpful. He explained that compression stockings help to stop pooling in the legs, which, in turn, provides relief. Dr. Teruya explained that if the patient did not receive any type of reiief after wearing compression stockings, then the veins were not the problem.

29. Dr. Teruya explained that because Patient PY was 92 years-old and did not have varicose veins, according to Dr. Gradman, Respondent's recommendation that Patient PY undergo five ablations was unnecessary and an extreme departure from the standard of care. Dr. Teruya further stated that if Respondent's examination and ultrasound findings were accurate and Patient PY really did have varicose veins and reflux, Respondent's proposed treatment still did not have fall within the standard of care, because performing five ablations was excessive. According to Dr. Teruya, performing an ablation of the greater saphenous veins could resolve the problems on the. other affected veins, rendering ablations of other veins unnecessary.

30. Dr. Teruya explained that it is possible for a p.atient without varicose veins to need venous ablation, but that it generally only happens when that patient had a venous ulceration which is usually caused by.the backwards pressure in the veiris that causes the breakdown of the skin. Dr. Teruya noted that Patient PY did not suffer from any venous ulcerations and opined that Patient PY's symptoms stemmed from other causes.

31. Dr. Teruya noted that in the medical records prepared l;>y Respondent, that . Respondent.prescribed Patient PY a sedative (i.e., valium). Dr. Teruya explained that giving a sedative to an elderly patient was dangerous, given its penchant for interfering with blood clotting properties.

7

Respondent 's Testimony

32. Respondent has been a licensed physician since 2003, and has served'· as the physician and medical director of his medical practice in Encino and in Beverly Hills, where he manages and treats venous and lymphatic diseases. Approximately 80 percent of Respondent's practice addresses vein care, and 20 percent addresses cosmetic and primary care. He has performed approximately 400 to 500 ablation procedures per year for the last 10 years.

33. Since 2008, Respondent has also served as a vascular lab supervisor in which he teaches students about venous disease and ultrasound mapping through his vascular lab facility . Moreover, Respondent routinely presents at educational seminars and on r?dio stations concerning leg health and vein screening.

· 34. Respondent earned his bachelor's degree in chemistry and mathematics from the University of California at Los Angeles (UCLA) in 1995, and his medical."degree from the American University of the Caribbean School of Medicine in 2000. Respondent · completed a family practice residency at the University of Illinois at Chicago in its Family Residency Program in 2003. He is board-certified by the American Board of Venous & Lymphatic Medicine, and has certificates from the American College of Phlebology, the American Cosmetic Academy, the American Vein & Lymphatic Society, and the American Board of Family Medicine ..

35. Respondent testified that he had no independent recollection of Patient PY, and relied on his medical records 'to help explain his care and treatment of Patient PY. When Patient PY presented in his office on March 18, 2015 for a consultation, she complained of achiness and pain in her legs, fatigue, tiredness, heaviness, throbbing, burning sensation, soreness, n'umbness; tingling, and muscle cramps, and reported that her symptoms interfered with sleep and activity. Patient PY reported t~at she had been suffering such symptoms for the past two .years. Respondent testified that her stated symptoms il_'ldic·ated to him that Patient PY was ·suffering from vein issues. Patient PY described her pain at a 10 out of 10, and her symptoms worsened during the day. Patient PY had difficulty standing and sitting for long periods of time because of her worsening symptoms.

36. RespondenCs physical observation of Patient PY showed that her body mass index (BMI) was 28.32, showing that Patient PY was overweight, thereby placing more pressure on the veins. He also noted in his observation that Patient PY had no large diameter to,rtuous varicose vein4 of the greater saphenous vein or of the superficial saphenous vein, but later learned, as discussed below, that Patient PY did, in fact, have varicose veins, as revealed in a vascular ultrasound. Respondent also noted that Patient PY had spider veins and reticular veins in her calves, ankles, and thighs, as well as edema.

4 Tortuous veins are large, bulging veins.

8

37. · Prior to seeing Respondent, Patient PY had tried conservative treatments to address her leg pain, such as wearing class II compression stockings and increasing her physical activity. Patient PY's social history showed that she had been working as a homemaker for more than 70 years, stood approximately 10 hours per day, and never smoked cigarettes or drank alcohol. To alleviate her symptoms, Patient PY had been taking medication (i.e., Tylenol, gabapentin, and Lidodenn), elevating her legs, resting, and massaging her legs, but experienced little to no improvement. Additionally, Patient PY was taking furosemide, which is a diuretic, and warfarin, a blood thinner.

38. Respondent's ultrasound technician performed a vascular ultrasound on Patient PY at R espondent'·s direction, and prepared a report, which included vein measurements, the speed in which blood travel through the veins, a drawing, and detailed findings: 5 ( 1) severe venous insufficiency of the right great saphenous vein, which was dilated to 6.5 millimeters, approximately 6.5 times the nonnal size, with reflux greater than .5 seconds; (2) severe venous insufficiency of the right small saphenotis vein, which was dilated to 5.8 millimeters, approximately 6 times the normal size, w ithout reflux, with wall thickening; (3) severe venous insufficiency of perforator off of right great saphenous vein 5 centimeters from heel, which was approximately 3 times the normal size; (4) no right · tortuous varicose veins; (5) moderate right spider varicose veins.; (6) positive right superficial vein thrombosis; (7) negative right deep vein thrombosis;· (8) negative right leg ulceration;

· (9) negative right leg phlebitis; ( 10) right leg edema; ( 11) right leg pain; ( 12) severe left great saphenous vein insufficiency, which was dilated to 6.0 millimeters, approximately 6.0 times the normal size, with reflux greater than .5 seconds; ( 13) severe left small saphenous vein insufficiency, which was dilated to 6.3 millimeters, approximately 6 times the normal size, without reflux, w ith wall thickening at 40 percent; (14) negative venous insufficiency of perforator off of left great saphenous vein; ( 15) no left tortuous varicose veins; ( 16) left spider varicose veins; ( 17) positive left superficial vein thrombosis; ( 18) negative left deep vein thrombosis; (19) negative left leg ulceration; (20) negative left leg phlebitis; (2 1) left leg edema; and (22) left leg pain. Respondent noted that on the CEAP Classification 6, Patient ·PY had edema, phlebitis, insufficient superficial and perforator veins, reflux, and an obstruction.

Respondent's ultrasound technician, Farshid Nahreini, performed the ultrasound on Patient PY an~ prepared an ultrasound report. Mr. Nahreini, who testified at hearing, has been an ultrasound technician for eight years, and had worked for Respondent for five years, up until January 2018. He is certified. to perform both vascular ultrasounds and echocardiograms. Mr. Nahreini has performed thousands of vascular ultrasounds. Mr. Nahreini now works at Providence St. Johns H ospital in Santa Monica where he performs vascular ultrasounds.

6 CEAP is system for describing an.d classifying vein problems and is an ____ __ ,~y.m_fo r.: .. dinicaU¥-(Le.,-wha.Lthe-¥.eins..look....l ike..).,....eti.olog¥--~i ,e.-,-wheth~-the..pr-oblem is

inherited or not), anatomical (i.e., which veins are involved), and pathophysiology (i.e. , normal or abnormal blood flow and whether blood flow is blocked).

9

39. Respondent's records showed that Patient PY's pertinent medical history and . active diagnoses included eight pregnancies, which Respondent testified could cause damage to the veins, cardiac pacemaker, arthritis of the right knee, unspecified hypertension, unspecified hyperlipidemia, and unspecified hypothyroidism. The records also showed diagnoses made by Respondent, to wit, pain in limb based on what Patient PY reported to . him, edema based on his observation and examination of Patient PY's legs, and varicose veins of the lower extremities, venous insufficiency (i.e., reflux), and venous embolism, and

' thrombosis of superficial vessels of the lower extremity, based on the results of the ultrasound.

40. Respondent's electronic medical records included a plan of action·that included the following: ( 1) procedure and potential complications discussed with Patient PY in detail; (2) endovenous·ablation treatment "(VNUS CLOSURE) 36475 x 6"7; (3) negative microambulatory phlebectomy; ( 4) foam sclerotherapy with ultrasound "364 71 x 6 + 76942 x 6" (Ibid.); (5) pre and post verbal and written instructions given to patient and patient stated understanding, agreed with plan, and signed the papers; (6) prescriptions for Amica cream8 and Valium 10 mg with instructions given to the patient; (7) compression stockings 20-30 mmHg fitted size large prescription given"to the patient; (8) informed consent was signed; (9) duplex ultrasound of lower extremity ·was scheduled; (10) negative cosmetic sclerotherapy; (11) continue all medication as prescribed by primary physician; (12) Medicare; (13) Medi-cal; and (14) cash. (Exhibit C, page AGO 061.)

41. Respondent testified that with respect to action plan entries 1, 2, 3, and 4, he discussed with Patient PY procedures that could be done in the future, including the possibility of ablation if more conservative measures still failed to work. Specifically, Respondent testified that he gave Patie.nt PY a prescdption for compression stockings, as set .forth in plan entry 7, with instructions for her to be as active as possible, to avoid standing or sitting too long, to continue to take her medications, as set forth in entry 11 , and to return to

·the office in 30 days·for a repeat ultrasound to see if Patient PY's vein issues were resolving, as set forth in entry 9. Respondent's non-electronic medical records ·showed that, iz;i addition to compression stockings 20-30 mmHg and instructions regarding her level of activity and standing or sitting too long, the plan included Patient PY using Amica crea'm and Motrin to address her pain, fo llowed by a follow-up office visit in one month.

42. Respondent further explained that there were no immediate plans for him to perform any ablation procedures on Patient PY, and he sought no approval from the Patient PY's insurance company to do any ablation procedures. Respondent's non-electronic · medical records showed that Respondent circled or highlighted no procedures or services, but noted that authorization was required for any ablation procedures. Respondent also testified that he never gave Patient PY any written informed consent forms for an ablation procedure. He explained that the informed consent mentioned in plan entry 8 referred to

_ _ _ _ _ _ _ ___ 7 _ _ __, 64-15-is.-a-medicaLco.de fod'irn-endovenous-al::>latiol'l~. -------- - ------

8 Amica cream temporarily relieves muscle pain, stiffness, and swelling.

10

consent to see Patient PY for her initial visit and HIPP A forms, while entries 12 through 14 concerned internal information related to the method of payment.

43. Respondent testified that although plan entry 6 indicated that he· gave the patient prescription for Valium, he did not do so, and that the entry 'Ao'.as a mistake. He explained that his electronic medical records template for vein patients automatically populated a prescription for Valium which should be removed if not given. Respondent stated that he fai led to remove the entry, and added that no copies of any Valium prescriptions exist between Respondent and Patient PY. ·

44. Respondent testified that he educated Patient PY on the various treatment options available, such as continuation of conservative treatment using compression stockings, engaging in physical therapy, continuing her medication regimen, and then following up with a visit 30 days later. Respondent explained that after three to six months of structured conservative therapy, Patient PY could explore other treatment options, including the ablation of insufficient veins, but acknowledged that his medical records · mentioned !!Othing about a three to six-month plan.

45. Patient PY, however, failed to return for a visit within 30 days as directed.

Respondent's Expert: Rodney A. White, MD.

46. Dr. Rodney A. White provided expert testimony on Respondent's behalf. Dr. _White is a board-certified vascu_lar surgeon who has been licens-ed to practice medicine since 1974. Dr. White earned a bachelor's degree in zoology from Syracuse University in 1970, and his· medical degree from State-University of New York Upstate Medical Center in 1974, where he graduated number one in his class. He completed a surgical internship, a surgical residency, and a vascular surgery fellowship, at Harbor-UCLA Medical Center in 1975, 1979, and 1980, respectively. Since 1992, Dr. White has served as professor-in-residence in the Department of Surgery at Harbor-UCLA Medical Center and at the David Geffen School of Medicine at UCLA. Additionally, since 1993, he has served as a general and vascular surgeon at Long Beach Memorial Hospital, and beginning in 2016, has served as the medical director of vascular surgery there.

47. Dr. White has more than 300 peer-reviewed publications and has written nearly 135 book chapters. Additionally, he has edited and authored 14 textbooks.

48. Dr. White reviewed the Accusation, Patieqt PY's medical records, Pr. Teruya's report, and the transcript of Respondent' s interview, and prepared a written report dated December 19, 20 I 8.

49. Dr. White opined that Respondent correctly concluded that Patient PY's ------'"'-;1-"- ploms wer.e_cnnsis~chronic_JLenous_clisease.-and-thaLthe__conditLon..was caused by---~-­

chronic venous insufficiency. Dr. White explained that Respondent's records showed that Patient PY suffered from varicose ·veins, swelling, pain, achiness, soreness, numbness,

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·tingling, burning sensation, muscle cramps, throbbing, heaviness, leg tiredness, and edema ill both legs, and that the ultrasound showed evidence of reflux, and chronic superficial venous thrombosis. All of these symptoms, according to Dr. White, were consistent with late Stage 3 or Stage 4 venous disease per CEAP classification.

50. Dr. White concluded that Respondent did not recommend a medically unnecessary or excessive treatment plan, and that Respondent's records "unequivocally establish that he directed the patient to remain on a conservative treatment plan." (Exhibit J, page 3.) Dr. White stated the following:

(Ibid.)

(Ibid.)

In accordance with the applicable standard of care, [Respondent] educated the patient on alternative treatments available, and he devised a treatment protocof. If the conservative approached remained ineffective, [Respondent] ·and the patient would evaluate whether to proceed with ablation of the greater saphenous vein. If the patient was still symptomatic and if the small saphenous veins still showed reflux after the ablation of the greater saphenous vein, then they would decide whether to proceed with small saphenous treatment. It is clear from the records that [Respondent] would pursue these treatment options only if the more conservative approach remained ineffective.

51 . Dr. White concluded the following:

[Respondent] therefore operated within the standard of care. Contrary to the report prepared by Theodore H. Teruya, M.D., a physician does not violate the standard of care by educating the patient on the available treatment options, and establishing a treatment protocol. The treatment protocol was to continue with the conservative plan for at least one month. · If that plan was ineffective, the patient could proceed with more conservative treatments for three to six months and if that still did not improve · then plan ablation of the greater saphenous vein. If the small saphenous veins still showed reflux after the ablation of the greater sapl}.enous vein was performed, then they would decide then.

52. Dr. White also stated the following:

Dr. Teruya also criticized [Respondent] for lacking in the requisite clinical knowledge and expertise to practice in this area of medicine.

-------~---~:.haLc.on.clusion is flatly_w.r.orig~spondent]J.s board ceitifie_cl b_Y----------­the American Board of Venous and Lymphatic Medicine unlike Dr.

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(Ibid.)

Teruya. Further, [Respondent] has built a successful practice, and has managed to treat more than I 0,000 patients with venous insufficiency . and leg pain in the past 15 years of his practice in the field of venous medicine. Therefore, he is abundantly qualified to practice in this area of medicine.

53. In summary, Dr. White testified that in his opinion, Respondent did not display incompetence, did not deviate from the standard of care of Patient PY in any way, and did not perform in any way incon~istent with how a physician should pet'form for a patient. Additionally, Dr. White found that although Respondent provided Patient PY with a significant amount of education concerning treatment, including ablations, immediate ablation treatment did not appear to be part of the plan. Rather, ablation treatment appeared to be something_ to be considered "down the road." Finally, Dr. White testified that the ultrasound and report were within the standard of care and the report included everything one would expect an ultrasound report to contain. ·

Credibility Findings9

9 1 The manner and demeanor of a witness while testifying are the two most

important factors a trier of fact considers when judging credibility. (See Evid. Code § 780.) . The mannerisms, tone of voice, eye contact, facial expressions and body language are all considered, but are difficult to describe in such a way that the reader truly understands what causes the trier of fact to believe or disbelieve a witness.

Evidence Code section 780 relates to credibility of a witness and states, in pertinent part, that a court "may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: .. . (b) The character of his testimony; ... (f) The existence or nonexistence of a bias, interest,. or other motive; .. . (h) A statement made by him that is inconsistent with any part of his testimony at the hearing; (i) The existence or nonexistence of any fact testified to by him ... ·."

The trier of fact may "accept part of the testimony of a witness and reject another part ·even though the latter contradicts the pa11 accepted." (Stevens v. Parke Davis & Co. (1973) 9 Cal.3d 51, 67.) The trier of fact may also "reject part of the testimony ofa witness, though · not directly contradicted, and combine the accepted portions with bits of testimony or infe"rences from the testimony of other witnesses thus weaving a cloth of truth out of selected material." (Id., at 67-68, quoting from Neverov v. Caldwell (1958) 161 Cal.App.2d 762, 767.) Further, the fact finder may r"eject the testimony of a witness, even an expert, although not contradicted. · (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) And the testimony of "one credible witness may constitute substantial evidence," including a single

_____ _...xpert witness (Ke.arb.J3oaulof..MedicaLQualitjl-Assur..al1Ce-{_.l9.8.~ 18 9-CatApp...3 d-1 040'~----­l 052.) A fact finder may disbelieve any or all testimony of an impeached witness. (Wallace v. Pacific Electric Ry. Co. (1930) 105 Cal.App. 664, 671.)

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54. Dr. Teruya and Dr. White, with their wealth of experience during their respective decades of practice, their impressive credentials, their years of teaching, as well as their respective delivery of testimony in a clear, concise, straightfm:ward manner, prov~d to be exceptional witnesses. However, as discussed in more detail under Legal Conclusions, Dr. White's testimony is afforded more weight, because it aligns more squarely with the objective evidence, particularly Respondent's medical records, the entries contained in them, and Respondent's uncontrove1ied testimony concerning the entries set forth in the medical records, while Complainant proffered no testimony from Patient PY, her son, or any medical personnel from Respondent's office establishing otherwise.

Character Evidence

55. Dr. Sean Ravaei provided character testimony on Respondent's behalf. Dr. Ravaei, who-is a podiatrist, was a patient of Respondent approximately five years ago. Respondent treated Dr. Ravaei's varicose veins with a laser, and was satisfied with the results . Since then, Dr. Ravaei has referred five to ten of his patients to Respondent, including family members. Dr. Ravaei explained that Respondent's· reputation in the community is good; and he had never heard anything negative about Respondent. Dr. Ravaei has no reservations about referring future patients to Respondent.

56. Dr. David Dardashti provided character testimony on Respondent's behalf. Dr. Dardashti, who is a podiatrist, has known Respondent professionally for approximately eight years, and have referred patients with vein problems to Respondent. He even refe1Ted his mother-in-law to Respondent. Dr. Dardashti is familiar with Respondent's work, and has no reservation about referring future patients to Respondent. Dr. Dardashti stated that Respondent continues to maintain a good reputation in the community, which ·is why he continues to recommend patients to Respondent. ·

CONCLUSIONS OF LAW

1. Cause does not exist to discipline Respondent's certificate, pursuant to Business and Professions Code section 2234, subdivision (d), for incompetence, as set forth in Factual Findings 3 through 54 and Legal Conclusion 7, below.

2. Cause does not exist to discipline Respondent's certificate, pursuant to Business and Professions Code section 2234, subdivision (b), for gross negligence acts, as set forth in Factual Findings 3 through 54 and Legal Conclusions 7 and 8, below.

3. Cause does not exist to disciplin.e Respondent 's certificate, pursuant to Business and Professions Code section 2234, subdivision (a), for unprofessional conduct, as set forth in Factual Findings 3 through 54 .and Legal Conclusion 7, below.

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The Applicable Law

4. The standard of proof which must be met to establish the charging allegations herein is "clear and convincing evidence." (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853.)' This me.ans the burden rests with Complainant to offer proof that is clear, explicit and unequivocal--so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind. (Katie V. . v. Superior Court (2005) 130 Cal.App.4th 586, 594.)

5. The purpose of the Medical Practice Act 10 is to assure the high quality of medical practice; in other words, to keep unqualified and undesirable persons and those guilty of unprofessional conduct out of the medical profession. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574.) The imposition of license discipline does not depend on whether patients were injured by unprofessional medical practices. (See, Bryce v. Board of Medical Quality Assurance (1986) 184 Cal.App.3d 14 71; Fahmy v. Medical Board of California (1995) 38 Cal.App.4th 810, 817.) Our courts have long held that the purpose of physician discipline by the Board is not penal but to "protect the life, health and welfare of the people at large and to set up a plan whereby those who practice medicine will have the qualifications which will prevent, as far as possible, the evils which could result from ignorance or incompetency or a lack of honesty and integrity." (Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 3'26, 331.

6. "The law demands only that a physician or surgeoh have the degree of· learning and skill ordinarily possessed by practitioners of the medical_profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. (Citations.) The same degree ofresponsibility is imposed in the making of a diagnosis as in the prescribing and administering of treatinent. ·(Citations.) Ordinarily, a doctor's failure to possess or exercise the requisite learning or skill can be established only by the testimony of experts. (Citations.) Where, however, negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testim~:my is not required since scientific enlightenment is not essential for the determination · · of an obvious fact. (Citations.)" (Lawless v. Calaway (1944) 24 Cal.2d 81, 86.)

7. Business and Professions Code section 2234 states that-the Board shall take action against any licensee who is charged with unprofessional conduct. Unprofessional conduct includes (a) a v.iolation or an attempted violation of any provision of the Medical Board Act; (b) gross negligence; (c) repeated negligent acts (two or more negligent acts); (d) incompetence; and (e) the commission of any act involving dishonesty which is substantially related to the qualifications, functions , or duties of a physician and surgeon.

Ill

10 Business and Professions Code sections 2000 through 2521.

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8. Gross negligence has been defined as an extreme departure from the ordinary standard of care or the "want of even scant care." (Gore v. Board of Medical Quality Assurance (1970) 110 Cal.App.3d 184, 195-198.)

Analysis

9. Complainant failed to meet her burden of establishing, by clear and convincing evidence, that Respondent engaged in acts of incompetent, gross negligence, or unpro~essional conduct with resp~ct to Patient PY. Respondent credibly established that he did.not recommend medically unnecessary or an excessive treatment plan as alleged by Complainant, but rather promoted a conservative treatment plan for Patient PY, and educated her about ablation procedures should they become necessary. This conservative treatment was supported by the record, as Respondent's medical records sb.owed that he prescribed 20- . 30 mmHg grade compression stockings, Amica cream, and Motrin to address Patient PY's pain and discomfort, and instructed her to return to the office for a follow-up yisit in one month for, as Respondent testified, an assessment of whether the conservative measures were working. While Complainant contended that Respondent included conservative measures in his treatment plan solely to ·ensure that Medicare or Medi-Cal would pay for ablation procedures upon the failure of the conservative measures, such a contention is based on rank speculation, as Complainant proffered no credible independent evidence to support such a contention.

I 0. Despite Complainant's allegations to the contrary, Respondent's assertion that he educated Patient PY. about ablation procedures, rather than making definitive plans to go forward with ablation procedures, is also supported by the record, as Complainant proffered no evidence showing that.Respondent sought authorization from insurance companies for ablation procedures, obtained ~ny consent to proceed with ablation procedures, scheduled any ablation procedures, or otherwise furthered the execution of any ablation surgical procedu'res. Complainant also ·proffered no evidence from any percipient witness present during the ·consultation with Respondent, namely Patient PY, her son, or any medical personnel from Respondent' s office, to refute any testimony proffered by Respondent

· regarding his discussion with Patient PY regarding the ablation procedures. Nothing in the record clearly and convincingly establishes Respondent's specific plan for performing ablation procedures, whether Respondent intended to ablate all five affected veins, or whether he intended to perform ablations of the great saphenous veins first to see if they resolved the issues in the smaller saphenous veins, as Dr. White offered.

11 . Part of the problem stems from Respondent's less than stellar medical records. They contained errors, omissions, and in some instances, a lack of clarity. For example, the records included a reference to a val.ium prescription that he never prescribed. Additionally, the records were silent regarding the sequence of his plan of treatment for Patient PY, particularly following the one-month follow-up v.isit. For example, Respondent testified that

______ _,,h~is conservative P-lan for Patient PY was expected_to take three to six months to complete_, ______ _ yet his entries in the medical records did not reflect that. The medical records are also unclear about the order in which he intended to perform ablation procedures, if necessary-

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whether he intended to complete all five at one time, whether he intended to complete the five ablations one at a time, or, as Dr. White proffered, whether he intended to complete the ablation of the great saphenous veins first and then reassess whether the other ablations were still necessary.

12. Irre.spective of Dr. White's proffer, Complainant contends that Respondent, in fact, intended to perform six ablation procedures on Patient PY based on the entry in the medical records stating that Respondent would perform endovenous ablation treatment "(VNUS CLOSURE) 36475 x 6". 11 However, this entry, in and of itself, does not clearly and convincingly establish Complainant's contention that Respondent had recommended to Patient PY that she should undergo six ablation procedures, particularly in the absence of independent evidence to support such a contention. Complainant proffered.no testimony from Patient PY or her s·on, no insurance authorization requests or approvals, no written instructions, and no consent forms setting forth Respondent's intention regarding the manner and order in which he intended to perform ablation procedures. Thus, Complainant's position is not persuasive here. While, arguably, clearer medical records could have either eliminated or emphasized the necessity for filing charges in this matter concerning Respondent's recommendations to Patient PY, the Accusation includes no charges pertaining to inaccurate record-keeping. As such, Respondent will suffer no discipline stemming from his substandard record-keeping.

13. Neither the testimony of Dr. Gradman nor Dr. Teruya established that · Respondent's office performed an inaccurate vascular ultrasound of Patient PY. Complainant contends, in essence, that. because Dr. Gradman's ultrasound results were in stark contrast to the ultrasound results rendered by Respondent's office two months' prior, that Respondent's ultrasound was inaccurate, especially given the absence of varicose· veins; reflux, or wall thickening in Dr. Gradman 's ultrasound,_ but present in Respondent's. Complainant contends, based on the experience of Dr. Gradman, that severe chronic venous

·insufficiency does not resolve on its own. Additionally, Dr. Teruya concluded, based on .his review of Dr. Gradman's ultrasound, that Respondent failed to perform an accurate one, which, according to Dr. Teruya, constituted an extreme departure from the standard of care. However, these factors do not clearly and convincingly establish that the ultrasound performed in Respondent's office was inaccurate or performed improperly. Complainant proffered no testimony from Patient PY or from her son outlining what occurred during the ultrasound performed in Respondent's office, or what actions or treatments, if any, Patient PY engaged in during _the two-month period following her consultation with Respondent, that could have explained the different ultrasound findings. Complainant also offered no conclusive evidence that the ultrasound performed by Dr. Gradman was legitimately . accurate, given the absence of vein measurements in the ultrasound report, other than offering Dr. Gradman's impressive background in the field of vascular surgery and venous diseases, coupled with his decades-long history as a registered vascular technologist and a radiography and fluoroscopy x-ray supervisor and operator.

11 36475 is a medical code for first endovenous ablation.

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14. However, the record also shows that Respondent's ultrasound technician, Mr. Nahreini, who offered credible testimony regarding his background and the ultrasound process, was certified to perform both vascular ultrasounds and echocardiograms, and had performed thousands of vascular ultrasounds. Additionally, Mr. Nahreini was under the supervision of Respondent, who, himself, has served as a vascular Jab supervisor for the last decade, teaching students about venous disease and ultrasound mapping. Mr. Nahreini's ultrasound report included vein measurements, the speed in which blood traveled through the · veins, a drawing, and 22 detailed findings. Additionally, Dr. White testified that the ultrasound and report were within the standard of care and that the report included everything one would expect an ultrasound report to contain. Given these factors, Complainant failed to establish that the ultrasound performed in Respondent's office was deficient, inaccurate, or incompetent.

15 . · Neither the testimony of Dr. Gradman nor Dr. Teruya established that Respondent made an incorrect diagnosis. Complainant contends that Respondent erred when he diagnosed Patient PY with bilateral greater and small saphenous vein reflux and a perforator with reflux. Complainant bases it contention on the testimony and ultrasound findings of Dr. Gradman, who found no such condition. Specifically, Dr. Gradman found no edema, varicose veins, reflux, or thickening of the walls, as Respondent had found in the ultrasound performed in Respondent's office. But, as established above, Complainant produced no credible evidence demonstrating that the comprehensive ultrasound performed in Respondent's office was inaccurate or deficient in any way. As such, Respondent's reliance on the ultrasound findings when developing his diagnoses was not only reasonable, but it supported his diagnosis of venous insufficiency.

16. Indeed, Dr. White's credible testimony supported Respondent's diagnosis, when he opined that Respondent correctly concluded that Patient PY's sylJlptoms Were consistent with chronic venous disease, and that the condition was caused by chronic venous insufficiency. Dr. White credibly explained that, according to Respondent' s records, that Patient PY suffered from varicose veins, swelling, pain, achiness, soreness, numbness, tingling, burning sensation, muscle cramps, throbbing, heaviness, leg tiredness, and edema in both legs, and that the ultrasound showed evidence of reflux, and chronic superficial venous thrombosis. All of these symptoms, according to Dr. White, were consistent with venous disease. Given these factors, Complainant failed to establish that Respondent's diagnosis was inaccurate or rooted in incompetence.

Ill

Ill

Ill

Ill

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17. In light of the foregoing factors, Complainant failed to sustain her burden of establ ishing by clear and convincing evidence that Respondent engaged in acts of incompetence, gross negligence, or unprofessional conduct in regard to his care and treatment of Patient PY. As such, the Accusation shall be dismissed.

The Accusation is dismissed.

DATED: February 25, 2019

ORDER

CARLA L. GARRETT Administrative Law Judge Office of Administrative Hearings

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