BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Petition for ) Termination of Probation of: )

) )

RODRIGO DE ZUBIRIA, M.D. ) )

Physician's and Surgeon's ) Certificate No. A 70728 )

) Respondent )

Case No. 8002015012231

OAH No. 2015070183

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 October 29, 2015.

IT IS SO ORDERED September 29, 2015.

OARD OF CALIFORNIA

...____~~ By:~~~~#--~~~~~~~~~

Jamie W Panel A

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Petition for Termination of Probation of:

RODRIGO DE ZUBIRIA, M.D.,

Physician's and Surgeon's Certificate No. A 70728

Petitioner.

Case No. 800-2015-012231

OAH No. 2015070183

PROPOSED DECISION

Administrative Law Judge Coren D. Wong, Office of Administrative Hearings, State of California, heard this matter on August 11, 2015, in Fresno, California.

Michael C. Brummel, Deputy Attorney General, appeared on behalf of the people of the State of California, pursuant to Government Code section 11522.

Petitioner Rodrigo De Zubiria, M.D., represented himself.

Evidence was received, the record was closed, and the matter was submitted for decision on August 11, 2015.

SUMMARY

Petitioner seeks early termination of his five-year probation period. His Certificate was placed on probation because he had an inappropriate sexual relationship with a patient. One of the terms and conditions of probation is that a third-party chaperone be present whenever he consults, examines, or treats a female patient. But the evidence established a troubling history of noncompliance with that requirement, and petitioner provided no explanation for such noncompliance. When all the evidence is considered, petitioner did not establish by clear and convincing evidence to a reasonable certainty a sufficient basis for granting his petition. Therefore, his Petition for Termination of Probation should be denied.

FACTUAL FINDINGS

Procedural History

Issuance of physician's and surgeon's certificate

1. On January 28, 2000, the Medical Board of California issued Physician's and Surgeon's Certificate No. A 70728 (Certificate) to petitioner. The Certificate expires April 30, 2017, unless renewed or revoked. The Certificate has been disciplined as discussed below.

Prior discipline of the Certificate

2. On March 23, 2011, Linda K. Whitney, then the Executive Director of the Medical Board of California (Medical Board), Department of Consumer Affairs, State of California, signed an Accusation seeking to discipline petitioner's Certificate for sexual misconduct, gross negligence, and repeated negligent acts. The factual basis for the proposed discipline was that petitioner had a sexual relationship with a patient.

3. On May 23, 2012, petitioner signed a Stipulated Settlement and Disciplinary Order resolving the Accusation. On August 10, 2012, the Board issued a Decision adopting the Stipulated Settlement and Disciplinary Order, which became effective on September 7, 2012.

4. Pursuant to the Stipulated Settlement and Disciplinary Order, respondent's Certificate was revoked, the revocation was stayed, and the Certificate was placed on probation for five years, subject to terms and conditions. The terms and conditions included an actual suspension for 60 days beginning the 16th day after the effective date of the Decision adopting the Stipulated Settlement and Disciplinary Order, as well as the requirement that petitioner have a third-party chaperone present whenever consulting, examining, or treating female patients. The specific language of the third-party chaperone requirement is as follows:

THIRD PARTY CHAPERONE. During probation, Respondent shall have a third party chaperone present while consulting, examining or treating female patients. Respondent shall, within 30 calendar days of the effective date of the Decision, submit to the Board or its designee for prior approval name( s) of persons who will act as a third party chaperone.

If Respondent fails to obtain approval of a third party chaperone within 60 calendar days of the effective date of this Decision, Respondent shall receive a notification from the Board, or its designee to cease the practice of medicine within three (3) calendar days after being so notified. Respondent shall cease

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the practice of medicine until a chaperone is approved to provide monitoring responsibility.

Each third party chaperone shall sign (in ink or electronically) and date each patient medical record at the time the chaperone's services are provided. Each third party chaperone shall read the Decision(s) and the Accusation(s), and fully understand the role of the third party chaperone.

Respondent shall maintain a log of all patients seen for whom a third party chaperone is required. The log shall contain the: 1) patient initials, address and telephone number; 2) medical record number; and 3) date of service. Respondent shall keep this log in a separate file or ledger, in chronological order, shall make the log available for immediate inspection and copying on the premises at all times during business hours by the Board or its designee, and shall retain the log for the entire term of probation.

Respondent is prohibited from terminating employment of a Board-approved third party chaperone solely because that person provided information as required to the Board or its designee.

If the third party chaperone resigns or is no longer available, Respondent shall, within 5 calendar days of such resignation or unavailability, submit to the Board or its designee, for prior approval, the name of the person(s) who will act as the third party chaperone. If Respondent fails to obtain approval of a replacement chaperone within 60 calendar days of resignation or unavailability of the chaperone, Respondent shall receive notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. Respondent shall cease the practice of medicine until a replacement chaperone is approved and assumes monitoring responsibility.

Respondent shall provide written notification to Respondent's patients that a third-party chaperone shall be present during all consultations, examination, or treatment with female patients. Respondent shall maintain in the patient's file a copy of the written notification, shall make the notification available for immediate inspection and copying on the premises at all times during business hours by the Board or its designee, and shall retain the notification for the entire term of probation.

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Petition for Termination of Probation

5. The Board received petitioner's Petition for Penalty Relief (Petition) on March 9, 2013. The Petition seeks "Termination of Probation."

6. Petitioner included a narrative statement with his Petition, in which he wrote in pertinent part:

I am submitting this letter to the Medical Board of California requesting early termination of probation. I am currently on the third year of a five year probation period imposed by the medical board of California resulting from inappropriate sexual relationship involving a former patient of mine. While practicing adult medicine at Fresno Kaiser in 2007 a well 47 year old woman came by my clinic. A professor at a local college she had no significant medical emotional or psychological problems and had come in for routine visit to establish care. In conversation it came up we shared an interest in sailing, she owned a sailboat invited me to see it and become part of her sailing community. I was intrigued and accepted the invitation.

Over the following weeks I saw her personally and professionally a handful of times. Professionally I saw her 2-3 times by which time I realized we were developing a social relationship. As such I asked that she transferred her care to another physician which she agreed to and did right away. Even though I was no longer acting as her physician I fully realized I had committed a grave error and very early in our relationship I apologized to her and let her know this was not a relationship we could ever pursue. Beyond that, I saw her socially a few more times and over the next few months our relationship consisted mostly of telephone calls of decreasing frequency the subject of conversation being why we should or should not continue with this relationship.

Sometime early in 2008 the relationship came to the attention of the hospital staff. I was summoned to a meeting and asked if such relationship had in fact taken place. When confronted, I admitted to the relationship. I fully cooperated with the hospital staff. I apologized to them and told them exactly what had transpired. I was asked to resign from my position and was escorted out of the hospital; easily the worst day of my life before or since that event.

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7. At hearing, petitioner testified consistently with his narrative statement. He explained that for "some bizarre reason," he developed a relationship with the former patient. He "completely realize[ s] I was in the wrong," and immediately "owned up" to his actions "since day one." Petitioner's narrative statements and testimony was sincere and heartfelt.

8. Petitioner submitted several letters of recommendation signed by physicians familiar with his demeanor and skills as a physician, as well as the chief executive officer of his current medical practice. While each author spoke in laudatory terms about petitioner's demeanor and skills as a physician, none provided compelling evidence of any insight petitioner has gained into his misconduct since his Certificate was disciplined.

Petitioner's Compliance with the Terms and Conditions of Probation

9. Petitioner served his 60-day suspension from September 23 through November 23, 2012, without incident.

10. The following is a pertinent summary of petitioner's compliance with the requirement that he have a third-party chaperone present when consulting, examining, or treating a female patient, as documented by his probation monitor:

a. Intake Report. I advised Dr. DeZubiria his medical license has been revoked however, the revocation was stayed and he has been placed on probation for a period of five (5) years effective 09/07/12. We then reviewed the decision in its entirety which included the following Probation terms:

[iJ] ... [iJ]

8. Third Party Chaperone - Dr. DeZubiria is required to have a third party chaperone present while consulting, examining or treating female patients. I provided Dr. DeZubiria for [sic] DG-26A Third Party Nomination Form and instructed him to review the form with the proposed third party chaperone and have them complete the form and return it to me for approval. Dr. DeZubiria was also instructed to maintain a log of all female patients he examines or treats. The log is to include patient initials, address and telephone number, medical record number and date of service.

(Bold omitted.)

b. Quarter IV 2012 & Quarter I 2013. During this visit I interviewed a proposed Third Party Chaperone; Ms. Stephanie Avila. Ms. Avila is a Medical Assistant for Dr. DeZubiria and has been employed with CFHC since August 2011. Ms. Avila

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received her certification for Medical Assistant from Heald College. Ms. Avila stated she has no personal relationship with Dr. DeZubiria. She stated she has read and understands the Accusation and Decision of Dr. DeZubiria's probation. I reviewed with Ms. Avila the duties and responsibilities as a third party chaperone. She understood the duties and requirements and stated she would not hesitate to report anything out of the ordinary. Ms. Avila has been approved as a third party chaperone.

(Bold omitted.)

c. Quarter III - I, July 2013 - March 2014. On 12-19-13, Inspector Castaneda received an e-mail from Eugene Beed, M.D., a Medical Consultant with the Medical Review Branch of Audits and Investigations at the California Department of Health Care Services (DHCS). An onsite inspection was conducted on 12-16-13 as a result of DE ZUBIRIA's Medi-Cal application. In summary, Dr. Beed noted that DE ZUBIRIA's third party chaperone log does not contain patient initials, address, or phone number, which was reported by DE ZUBIRIA to be a measure of protecting patient privacy. DE ZUBIRIA informed Mr. [sic] Beed that he has not been furnishing written notification to his patients regarding the third party chaperone requirement; DE ZUBIRIA said he was not aware of this requirement. At least ten individuals have been used as a chaperone - Dr. Beed inquired if DE ZUBIRIA had at least ten approved chaperones. Chaperones have been initialing and not dating the chart note.

[~] ... [~]

I informed DE ZUBIRIA that it has come to my attention that he has been using unapproved third party chaperones. He said he primarily uses two or three chaperones, but others may cover for them if they are unavailable. I informed him that the only chaperone in his file who has been approved is Stephanie Avila. I handed him a Third Party Chaperone Application (PR0-11) and instructed him to nominate all other unapproved chaperones in order for them to become approved. I informed him that once approved, I would directly send to the chaperone an Agreement (PR0-12). He acknowledged and said he would distribute the applications accordingly. He showed me the third party chaperone log, which appeared to be maintained regularly and primarily contain the initials of Stephanie Avila and two other

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unapproved chaperones. The log only contained the patient's medical number, which DE ZUBIRIA said the patient's name, address, and telephone number could be easily accessed by looking in the chart.· Additionally, I advised DE ZUBIRIA to immediately begin notifying all new female patients in writing during their initial visit; he said he had been doing so orally. I requested that he forward this written notification to me. Lastly, I reminded DE ZUBIRIA that the chaperone is expected to initial and date each progress note. I informed him that all of the above was discussed with his PEP monitor, Dr. Asudani. DE ZUBIRIA was receptive and agreeable to these instructions. He said he is also working on chart legibility. I noted that his most recent handwritten declaration was very legible.

[if] ... [if]

On 04-02-14, I received third party chaperone applications from medical assistants Stephanie Avila, Farm Whitman, Linda Wendling, and Claudia Ledesma. I approved all on 04-09-14 and notified them of such. Each was also sent via mail and Agreement form to sign and return to me.

(Bold omitted.)

d. Quarter III - IV, October 2014. On 12-8-14, I contacted DE ZUBIRIA's practice and had a nurse fax me the chaperone logs for me to review. Initially received DE ZUBIRIA's patient logs for November through current date in error. After calling back and clarifying, I received the correct logs. A review of the logs revealed significant discrepancies with the logs. First, the logs are not electronically generated as stated by Dr. DE ZUBIRIA but were handwritten logs instead. The logs consist of a date and two columns. The left column refers to the medical record number of the patient who was seen by Dr. DE ZUBIRIA on the date while the second column refers to the initials of the chaperone (as explained by a staff member at DE ZUBIRIA's practice). The discrepancy centers around the number of patients seen by DE ZUBIRIA on any given date. When compared to the patient logs (that I initially received in error) for the same time period, the number of patients seen does not match. For example, on 11-3-14, according to the patient logs, DE ZUBIRIA saw 11 female patients during his shift that day. However, the chaperone logs only reflect 9 female patients seen by DE ZUBIRIA. Another example is 11-5-14. On that date the patient logs reflect a discrepancy of 11 female patients

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having been seen by DE ZUBIRIA while the chaperone logs reflect only 6 female patients documented. An analysis of every date listed in the logs revealed the following:

Date Patients seen Chaperoned patients documented

11-3-14 11 9 11-4-14 12 7 11-5-14 10 6 11-6-14 7 7 11-10-14 12 9 11-12-14 10 7 11-14-14 10 7 11-17-14 14 9 11-18-14 10 4 11-19-14 9 5 11-20-14 9 6 11-24-14 9 4 11-25-14 11 12 11-26-14 14 1 12-1-14 14 7 12-2-14 10 4 12-3-14 11 5 12-4-14 8 5

The analysis revealed DE ZUBIRIA is still having issues with chaperoning his female patients (as documented in previous monitoring reports by inspector II, Brian Junger). Specifically, the logs_ indicate he has failed to have the chaperone sign the logs for all female patients he sees. On 17 of the 18 days listed above, DE ZUBIRIA had a discrepancy with his chaperone logs. On the 11-26-14 log he saw 14 patients but only recorded 1 patient in the chaperone log. These discrepancies raise all sorts of issues associated with DE ZUBIRIA's order from the Medical Board to ALWAYS have a third party chaperone with all female patients. Based on this analysis, DE ZUBIRIA is NOT in compliance with this part of his order. I will plan an unannounced visit in the very near future to visit DE ZUBIRIA's practice to discuss this matter with him.

On 12-9-14, I contacted DE ZUBIRIA to clarify the above discrepancies with his chaperone logs. He explained his nursing staff must have erroneously forgotten to log female patients into the chaperone logs, causing the discrepancies. He further stated the handwritten chaperone logs were being used instead of the

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official Medical Board of California Patient Chaperone Log because of an agreement he had with former inspector Brian Junger. (I would later check the file and found no evidence of any agreement between Junger and DE ZUBIRIA regarding this matter.) The alleged agreement to utilize the handwritten logs resulted from notwanting to possibly expose patient's personal information to unauthorized persons. I told DE ZUBIRIA the official Patient Chaperone Log would have to be used from now on and he was responsible for ensuring the following occurred.

1. The official Medical Board of California Patient Chaperone Log was used as of immediately.

2. The female patient information from the handwritten logs would need to be transferred to the official logs immediately dating back to 12-1-14.

3. He use only approved chaperones whenever seeing female patients. If he needed to nominate additional chaperones, I told him I would send him the proper form to begin the process. He stated he had several chaperones properly identified and would let me know if he needed to add any additional.

4. He is solely responsible for ensuring the chaperone logs are accurately completed and updated on a daily basis; not his staff.

5. I would be comparing the chaperone logs to the total patient seen log when I visit his practice so he needs to ensure all logs are accurate and up to date upon my arrival. A definitive date for the facility visit will be forth coming.

(Bold omitted.)

11. Petitioner said nothing at hearing about his history of not complying with the third-party chaperone requirement. He explained he wants early termination of probation because it will give him greater access to the community he serves, which consists largely of the underserved population in the Central Valley.

Discussion

12. Petitioner seeks early termination of his probation, which is currently scheduled to end on September 7, 2017. As discussed in the Legal Conclusions below, the ALJ "may consider all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the

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certificate was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability" when deciding the Petition. (Bus. & Code, § 2307, subd. (e).)

13. As previously discussed, petitioner's Certificate was disciplined because he engaged in an inappropriate sexual relationship with a patient. While the relationship was relatively short-lived, petitioner nonetheless took advantage of his relationship as the patient's physician for his own sexual gratification. Once his former employer learned of his misconduct, petitioner admitted to having an inappropriate relationship with a patient and cooperated with his employer. He also cooperated with the Medical Board's subsequent investigation and disciplinary proceedings, stipulating to the discipline imposed and not forcing his patient to go through the humiliation of testifying at hearing.

One of the terms and conditions of petitioner's five-year probation is that a third-party chaperone be present whenever he is consulting, examining, or treating a female patient. But Factual Finding 10 evidences a troubling history of petitioner not complying with the requirement, and he provided no explanation for his noncompliance at hearing.

Summary

14. When all the evidence is considered, petitioner did not meet his burden of producing clear and convincing evidence that it is in the public interest to terminate his probation early. While it is laudable that petitioner admitted his misconduct and saved his former patient the humiliation of having to testify at hearing, he did so only after his employer learned of the inappropriate relationship. And his self-proclamations of remorse and rehabilitation are outweighed by his history of not complying with the third-party chaperone requirement and the lack of any explanation for such noncompliance. Therefore, petitioner's Petition for Termination of Probation should be denied.

LEGAL CONCLUSIONS

Applicable Standard/Burden of Proof

1. Petitioner has the burden of proving eligibility for early termination of probation, and he must do so by clear and convincing evidence to a reasonable certainty. (Housman v. Board of Medical Examiners (1948) 84 Cal.App.2d. 308, 315-316.)

Authority far Early Termination of Probation

2. Business and Professions Code section 2307, subdivision (a), authorizes a person whose certificate has been placed on probation to petition the Medical Board for early termination of probation. (See also, Cal. Code Regs., tit. 16, § 1359.) Such petition may not be filed until a minimum of two years have elapsed since the effective date of the decision placing the certificate on probation. (Bus. & Prof. Code, § 2307, subd. (b )(2).)

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3. A petition for termination of probation may be heard and decided by a panel of the Medical Board, or the Medical Board "may assign the petition to an administrative law judge designated in Section 11371 of the Government Code. After a hearing on the petition, the administrative law judge shall provide a proposed decision to the board ... , which shall be acted upon in accordance with Section 2335." (Bus. & Code,§ 2307, subd. (d).) In reaching a decision on the petition, the administrative law judge "may consider all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the certificate was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability." (Bus. & Code,§ 2307, subd. (e).)

Conclusion

4. For the reasons explained in Factual Findings 12 through 14, petitioner did not demonstrate, by clear and convincing evidence to a reasonable certainty, sufficient grounds for terminating his probation early. Therefore, his Petition for Termination of Probation should be denied.

ORDER

Petitioner Rodrigo De Zubiria's Petition for Termination of Probation is DENIED.

DATED: September 3, 2015

Administrative Law Judge Office of Administrative Hearin s

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