1999 NBME Mar 15 Board transcript

1 NEVADA STATE BOARD OF MEDICAL EXAMINERS

2 BOARD MEETING

4 --oOo--

11 TRANSCRIPT OF PROCEEDINGS

12 March 15th, 1999

13 Carson City, Nevada

REPORTED BY: STEPHANIE KOETTING, CCR #207, RPR

25 Computer-Aided Transcription

DISCOVERY REPORTING (775) 329-3500

1 APPEARANCES:

3 Board Members: ARNE ROSENCRANTZ, MD

4 SUSAN BUCHWALD, MD

5 PAUL STEWART, MD

6 JACQUILINE JONES, Ed.D

7 REX BAGGETT, MD

8 CHERYL HUG-ENGLISH, MD

9 JOEL LUBRITZ, MD

DISCOVERY REPORTING (775) 329-3500

1 DATED: At Carson City, Nevada, March 15th, 1999, 9:45 a.m.

2 --oOo--

4 MR. LEGARZA: The record should reflect that

5 pursuant to notices of the Board, workshops were conducted,

6 one on Wednesday, February the 24th, 1999 at the Sawyer State

7 Office Building, 555 East Washington Avenue, room 44E, Las

8 Vegas; Thursday, February 25th, 1999 at the offices of the

9 Board at 1105 Terminal Way, suite 301, Reno, Nevada.

10 I have the transcripts of proceedings at both

11 hearings of workshops conducted by myself with the court

12 reporter present in the Las Vegas workshop. Mr. And Mrs.

13 Vaneslow appeared. And at the Reno workshop, Executive

14 Director of the Nevada State Medical Society, Mr. Matheis,

15 indicated on behalf of the organization he represents that

16 they were in full support of the proposed regulations as they

17 have been posed.

18 And as you recall, the gist of the regulations are

19 that five sections of the regulations are simply an adoption

20 into law of former Board policy that the Board requested be

21 proposed made into regulations.

22 And the remainder of the regulations make

23 applicable to PAs all grounds for disciplinary action that

24 exist on physicians in the past. We've only had certain

25 regulations that set out how we can discipline and what

DISCOVERY REPORTING (775) 329-3500

1 grounds of discipline for PAs. And the Board felt the same

2 grounds should exist for PAs as exist for physicians.

3 And then the remainder of the proposed changes are

4 the regulations with respect to prescribing of controlled

5 substances, both under-prescribing and over-prescribing, and

6 the guidelines really picked up from the federation put into

7 the regulation form.

8 For purposes of your information, the only question

9 really that was brought up with respect to the regulations

10 would be on section five, which talks about investigations

11 whenever the Board or the IC becomes aware of a licensed

12 physician or PA who is human imunodeficiency virus positive

13 that certain things are engaged in by the Investigative

14 Committee and the thought was that perhaps should not be

15 limited just to HIV.

16 That's all the input that I have. It's all the

17 input that was given with respect to the opposition or being

18 in favor of regulations. There was no opposition voiced by

19 anyone on the regulations at either one of the workshops.

20 As you know, these are emergency regulations, not

21 because there is any emergency, but because the legislature

22 is in session, God help us, and the Legislative Counsel

23 Bureau is very active working on their own legislation they

24 want. The legislature wants them. So they can't work on

25 regulations at this time. That's all I have.

DISCOVERY REPORTING (775) 329-3500

1 You need to either adopt them or not adopt them or

2 amend them, change them.

3 DR. ROSENCRANTZ: Do we have a motion? Rex?

4 DR. BAGGETT: I move the adoption of the proposed

5 regulations of the Nevada State Board of Medical Examiners.

6 DR. LUBRITZ: I second.

7 DR. ROSENCRANTZ: Motion is seconded and

8 discussion. Hearing no discussion, call for the question.

9 All those in favor?

10 Aye.

11 DR. ROZENCRANTZ: All opposed?

12 Chair votes in favor of the motion. Motion

13 carries.

14 Let's take a five-minute recess.

15 (A short recess was taken at this time.)

16 DR. ROSENCRANTZ: Item number six, the adjudication

17 in the matter of the Nevada State Board of Medical Examiners

18 versus James G. Cavanaugh, MD, case number 98-4566-1.

19 The adjudicating Board members will be myself, Arne

20 D. Rosencrantz; Dr. Buchwald; Rex Baggett; Paul Stewart; and

21 Cheryl Hug-English. I have been asked by our audience if we

22 can speak up so we can talk so people in the rear of the room

23 haven't been able to hear us. If you would, if you could

24 speak up.

25 This is case number 98-4566-1, in the matter of the

DISCOVERY REPORTING (775) 329-3500

1 complaint against James G. Cavanaugh, MD. The complaint was

2 filed on October 8th, 1998 containing 54 counts involving 27

3 patients, which are to be adjudicated today.

4 The complaint alleges that with respect to each of

5 the 37 -- 27 patients, excuse me, Respondent violated NRS

6 630.3067 by failing to exercise the skill or diligence or use

7 the methods ordinarily exercised under the same circumstances

8 by physicians in a good standing practice in the same

9 specialty or field.

10 The complaint further alleges with respect to each

11 of the 27 patients, respondent violated NRS 630.3062(b) by

12 engaging in conduct determined by the Board to be a violation

13 of the standards of practice established by regulation of the

14 Board, specifically NAC 630.2301(c), engaging in the practice

15 of writing prescriptions for controlled substances in such

16 excessive amounts as to constitute a departure in prevailing

17 standards of acceptable medical practice.

18 The hearing was held on March 1st, 1999 conducted

19 by Hearing Officer Nick A. Moschetti. Mr. Legarza was

20 present to prosecute the case against the respondent, but

21 neither the respondent nor representative appeared at the

22 hearing.

23 Notices of the hearing were mailed to the

24 respondent's last known address in Nevada and Florida.

25 Notices of hearing were published for four consecutive days

DISCOVERY REPORTING (775) 329-3500

1 in the Mineral County Independent News, which is a newspaper

2 published in the county of the respondent pursuant to

3 630.344.

4 Hearing Officer Moschetti deemed respondent in

5 default for failing to appear. I'd like to ask if the

6 respondent is here today.

7 The record should show that the respondent or

8 attorney, I assume, is not here as well.

9 Let's do roll call of the members here to

10 adjudicate this case today. Dr. Buchwald?

11 DR. BUCHWALD: Here.

12 DR. ROSENCRANTZ: Dr. Baggett?

13 DR. BAGGETT: Here.

14 DR. ROSENCRANTZ: Dr. Stewart?

15 DR. STEWART: Here.

16 DR. ROSENCRANTZ: Dr. Hug-English?

17 DR. HUG-ENGLISH: Here.

18 DR. ROSENCRANTZ: Myself, Arne Rosencrantz. Has

19 any adjudicating member not received a synopsis of the

20 record, the transcripts of the hearings and the exhibits

21 admitted at the hearing? Everybody -- nobody has answered.

22 We will go forward. You must now determine whether

23 by the preponderance of the evidence the respondent's --

24 respondent is guilty of each of 54 counts. All evidence in

25 the case must be considered, direct and circumstantial.

DISCOVERY REPORTING (775) 329-3500

1 Circumstantial evidence alone may be sufficient to convince

2 you by a preponderance of the evidence that a person is

3 guilty of a count charged.

4 At this present time, we can go into discussion on

5 all counts and have questions or any discussion on all

6 counts. You can make comments specifically on a certain

7 count and we can entertain a motion regarding a single count

8 or multiple counts.

9 DR. BUCHWALD: Mr. Rosencrantz, I have a question

10 for Mrs. Nielsen. In the past, we have addressed each count

11 individually. Given the number of these counts and the

12 constancy of them, is it possible to take this entire

13 complaint as an entirety?

14 MS. NIELSEN: Yes, you can. The motion can be made

15 for guilty finding or a not guilty finding on individual

16 counts or all counts or any number of counts.

17 DR. ROSENCRANTZ: If we have --

18 DR. BAGGETT: I'm ready to make a motion, if

19 there's no further discussion.

20 Mr. Chairman, I move that the Board of Medical

21 Examiners finds James G. Cavanaugh guilty of Counts 1 through

22 54 as presented in our complaint and adjudicate all 54

23 counts.

24 DR. STEWART: I would like to second that motion.

25 DR. ROSENCRANTZ: Motion is seconded. Any

DISCOVERY REPORTING (775) 329-3500

1 discussion? If not, we'll take a roll call vote. Dr.

2 Buchwald, in favor of the motion or opposed?

3 DR. BUCHWALD: I'm in favor.

4 DR. ROSENCRANTZ: Dr. Baggett made the motion. Dr.

5 Stewart seconded the motion. And Dr. Hug-English?

6 DR. HUG-ENGLISH: Aye.

7 DR. ROSENCRANTZ: Aye from the chair, yes. Approve

8 the motion. We have found Dr. Cavanaugh guilty of all 54

9 counts. And at this time we can ask Mr. Legarza if he's here

10 to present the appropriate sanction to the -- that we may

11 impose.

12 MR. LEGARZA: Thank you, Mr. President. I would

13 like to suggest to the people at the head table it has been

14 requested by the audience that you speak a little louder.

15 You have been hard to hear from where I am sitting, so I

16 would like to make that request once again.

17 On behalf of the Nevada State Board of Medical

18 Examiners, which prosecuted this case through me, I will

19 represent to you that we did all we possibly could to try to

20 locate the doctor. We tried to locate family members, we

21 tried to locate a multitude of people to see if we could make

22 personal contact with the doctor.

23 It is our judgment, it is my judgment and I

24 respectfully submit to you that the doctor basically made a

25 decision to leave the State of Nevada once the investigation

DISCOVERY REPORTING (775) 329-3500

1 began and he knew that he was a target of this investigation.

2 So I would respectfully request of you that you revoke the

3 doctor's license to practice medicine in the State of Nevada.

4 Thank you.

5 DR. HUG-ENGLISH: I would make the motion that we

6 revoke Dr. Cavanagh's license to practice medicine in the

7 State of Nevada.

8 DR. BUCHWALD: Second.

9 DR. ROSENCRANTZ: The motion is seconded. Any

10 discussion? If not, we'll take a roll call vote.

11 Dr. Lubritz? No. Excuse me.

12 Dr. Buchwald?

13 DR. BUCHWALD: Aye.

14 DR. ROSENCRANTZ: Dr. Baggett?

15 DR. BAGGETT: Aye.

16 DR. ROSENCRANTZ: Dr. Stewart?

17 DR. STEWART: Aye.

18 DR. ROSENCRANTZ: And Dr. Hug-English?

19 DR. HUG-ENGLISH: Yes.

20 DR. ROSENCRANTZ: Chair votes in favor. Dr.

21 Buchwald?

22 DR. BUCHWALD: Aye.

23 DR. ROSENCRANTZ: We therefore found Dr. Cavanaugh

24 guilty of 54 counts and are going to revoke his license.

25 Have revoked his license.

DISCOVERY REPORTING (775) 329-3500

1 That ends the adjudication on Dr. James Cavanaugh.

2 --oOo--

3 DR. ROSENCRANTZ: Go to item number seven,

4 consideration of acceptance of voluntary surrender of license

5 while under investigation of Ivan A. Franco, MD, license

6 number 6431. Mr. Legarza?

7 MR. LEGARZA: Mr. President, members of the Board,

8 as you know, a licensee can tender their license to practice

9 medicine while under investigation. The Board can or cannot

10 accept that request to be allowed to tender their license

11 while under investigation. The impact and the import of a

12 person surrendering their license while under investigation

13 results, of course, in no ability to practice medicine in the

14 State of Nevada anymore and certainly reportable to the

15 federation as well as the petitioner data bank as a serious

16 offense.

17 You have the stipulation that was entered into with

18 Dr. Franco, approved by Dr. Desai and the Investigative

19 Committee. And you also have a copy of Dr. Franco's

20 voluntary surrender of his license to the Nevada State Board

21 of Medical Examiners while under investigation. I would

22 request of you that you accept the voluntary surrender of his

23 license while under investigation.

24 DR. ROSENCRANTZ: Any motion?

25 DR. HUG-ENGLISH: I move that we accept the

DISCOVERY REPORTING (775) 329-3500

1 resignation of his license to practice medicine and the

2 stipulation as directed.

3 DR. BAGGETT: Second.

4 DR. ROSENCRANTZ: Motion and a second. Any

5 discussion?

6 DR. STEWART: Did Dr. Franco have legal counsel?

7 MR. LEGARZA: Yes, Dr. Franco had legal counsel,

8 and his legal counsel was Mr. John J. Graves of the law firm

9 of Graves and Leavitt in Las Vegas, Nevada. I spent a lot of

10 time with Mr. Graves in working this case. Dr. Franco is

11 licensed to practice medicine. There was never a petition by

12 the Investigative Committee of the Board for any summary

13 suspension of his license to practice medicine, because we

14 had an earlier stipulation that he would not practice

15 medicine pending the outcome of the filing of the formal

16 complaint. So this is as a result of the filing of the

17 formal complaint that would have resulted in a hearing, but

18 has not. Yes, sir, he did have representation.

19 DR. ROSENCRANTZ: Motion and second on the floor.

20 Any further discussion? If not, offer the question. All

21 those in favor?

22 Aye.

23 DR. ROSENCRANTZ: All opposed?

24 The votes are in favor of the motion.

25 --oOo--

DISCOVERY REPORTING (775) 329-3500

1 DR. ROSENCRANTZ: We're going to go to agenda item

2 supplemental addendum, number 20. The consideration of the

3 acceptance of stipulation for settlement in the matter of the

4 Nevada State Board of Medical Examiners versus Robert

5 Chancellor, MD, case number 98-5652-1 and case number

6 98-5652-2.

7 MR. LEGARZA: Mr. President, members of the Board.

8 Dr. Chancellor, as you may recall, is a physician that was

9 proceeded against and there was a formal hearing that

10 resulted in a revocation of Dr. Chancellor's license to

11 practice medicine in the State of Nevada.

12 There was a petition for judicial review and the

13 District Court in Clark County made a determination that some

14 comments that I made in front of the hearing panel were less

15 than proper and ordered the Board to retry Dr. Chancellor

16 and/or give him a license.

17 Between the time that the case was presented and

18 the time the Board adjudicated the case and revoked the

19 doctor's license, the doctor had been examined and tested by

20 the diversion program and had been sent off for testing at a

21 facility out of the State of Nevada.

22 And as a result of that, leaving against medical

23 advice, the Investigative Committee filed a formal complaint

24 against the doctor for practicing medicine while under the

25 influence, as well as two counts, but they were both under

DISCOVERY REPORTING (775) 329-3500

1 the influence, as well as coming back to the State of Nevada

2 without receiving treatment against medical advice.

3 We moved the Board to dismiss the substance abuse

4 complaint against the doctor without prejudice and the

5 District Court ordered us to retry him on the malpractice

6 cases. The Investigative Committee refiled the substance

7 abuse charges against Dr. Chancellor.

8 Since those cases have been -- since the District

9 Court ordered the retrial, there has been one continuance and

10 a new amended order from the District Court and then the

11 matters have been reset to commence for hearing beginning day

12 after tomorrow on the malpractice case that has been ordered

13 by the Board -- by the Court to be readjudicated and on the

14 substance abuse case to be -- begin to be presented the

15 following day.

16 Those cases are still set for hearing; however,

17 there is a settlement. I don't have the settlement documents

18 with me. I don't have them to present to you. But they are

19 along the same lines as what I did in the brief synopsis to

20 you with respect to Dr. Chancellor. The settlement's being

21 that the malpractice cause of action upon which the Board

22 originally revoked his license as well as the petition for

23 judicial review will both be dismissed and that Dr.

24 Chancellor will admit the allegations of the petition with

25 respect to the substance abuse and stipulate that his license

DISCOVERY REPORTING (775) 329-3500

1 be revoked.

2 The end result, of course, being the same thing,

3 revocation of the doctor's license. The only difference is

4 in the settlement agreement with respect to the revocation of

5 the doctor's license for the substance abuse and the

6 psychiatric problems that were discovered at the request of

7 the hearing panel that heard the malpractice case, Dr. Tracy

8 has been working with Dr. Chancellor as well as he's been

9 working with Dr. Chancellor's lawyer, Mr. Frank Cremin, to

10 try to get Dr. Chancellor admitted to treatment, probably

11 long-term treatment and care, both with respect to the

12 psychiatric and psychological problems as well as the

13 substance abuse.

14 And Dr. Tracy has convinced a medical facility in

15 the United States of America to take the doctor with a down

16 payment of $5,000.00 and the doctor's brother is going to

17 make this down payment. And the doctor, we believe, is going

18 to go off for the treatment.

19 So all of that is in the settlement agreement.

20 There's no agreement that the Board will ever relicense Dr.

21 Chancellor, but certainly Dr. Chancellor has a right to apply

22 to the Board for relicensure. And if he went off to

23 treatment and was no longer sick and they certify to the

24 diversion program that he would be safe to practice medicine,

25 that he may apply for relicensure some day and he may. The

DISCOVERY REPORTING (775) 329-3500

1 Board would have to consider his application.

2 But whether the Board would grant his licensure or

3 what terms and conditions it would, there's no recommendation

4 or representation that any of that would happen. But we

5 wanted to put that in there to help encourage the doctor,

6 maybe, to address his problems. And his lawyer has requested

7 if I had no objection to it, because I didn't make any

8 representation that he ever would be licensed.

9 The doctor is not in the best of financial straits.

10 Obviously hasn't been working for a long time. It may be a

11 while even before the medical facility and his family can get

12 the payment process put together. So we've put in the

13 agreement that it could be six months before he even leaves.

14 So on the basis of those representations, I would

15 ask you to approve the settlement agreements. Bottom line

16 is, his license is revoked, he will not be practicing

17 medicine in the State of Nevada, and I don't have a

18 settlement agreement, but if I don't have them by tomorrow,

19 it will be litigated and you won't have to worry about it.

20 At this time, I would request, since you are having

21 a meeting, that you approve the settlements and we do have

22 them, and they are duly executed, that you allow the

23 President to enter an order revoking his license. Any

24 questions, I'll answer them.

25 DR. STEWART: If the doctor would turn to the State

DISCOVERY REPORTING (775) 329-3500

1 of Nevada and apply for a license, is the malpractice issue

2 an issue or will they dismiss with prejudice?

3 MR. LEGARZA: We're not dismissing with prejudice.

4 It's being dismissed, the malpractice. It's being dismissed

5 which means it could be reinstituted. The reason we're just

6 dismissing it so if the doctor does reapply that that may not

7 be something that would necessarily be out there hanging over

8 his head to keep the Board from licensing him and it would be

9 my feeling that at that time, if the Board was of a mind to

10 license him to practice medicine in the State of Nevada,

11 under whatever terms and conditions that I would probably at

12 that time move to dismiss it with prejudice so it wouldn't be

13 hanging out there. It's still there. And can be refiled.

14 DR. BAGGETT: So that what you're asking for, Mr.

15 Legarza, is since the Board on your explanation that we agree

16 in principle with what's going on, because we don't have any

17 settlement papers that we can act on that we can read.

18 MR. LEGARZA: That's correct.

19 DR. BAGGETT: You're looking for a sense of the

20 Board to say, yes, we agree with what you're doing.

21 MR. LEGARZA: I think based upon my representations

22 to you that the documents are probably signed now, I don't

23 have them, if it went down to the very last minute, they were

24 faxed out Friday afternoon, they were sent -- their lawyer

25 has represented to me that they'll be signed today and

DISCOVERY REPORTING (775) 329-3500

1 they'll be back to my office tomorrow morning. If they're

2 not, I'll try the case Wednesday and Thursday.

3 I request to you if they're in my office and can be

4 signed, I'll present them to Dr. Desai and if the IC

5 recommends to you to approve it so it's all done and we can

6 get the President to sign the order revoking his license. It

7 doesn't happen, I'll prosecute him.

8 DR. BUCHWALD: I move that we accept the

9 stipulation as presented by Mr. Legarza regarding Dr.

10 Chancellor.

11 DR. BAGGETT: Second.

12 DR. ROSENCRANTZ: We have a motion and a second.

13 DR. LUBRITZ: May the IC members vote?

14 DR. ROSENCRANTZ: Adjudicating members would be

15 myself, Dr. Buchwald, Dr. Baggett, Dr. Stewart, and Dr.

16 Hug-English. Any further discussion?

17 Call for the question. All those in favor?

18 Aye.

19 DR. ROSENCRANTZ: All those opposed?

20 Chair votes in favor. The motion has passed.

21 --oOo--

22 DR. ROSENCRANTZ: We'll move to the next case,

23 number 21 on your addendum of agenda, consideration of

24 acceptance of voluntary surrender of license while under

25 investigation of L. Dean Gibson, MD, license number 6141.

DISCOVERY REPORTING (775) 329-3500

1 Mr. Legarza?

2 MR. LEGARZA: Thank you. This case was filed by

3 the investigative committee some time ago. I have been in

4 the process of negotiating this case as well as this case is

5 set to go to hearing on the 24th and 25th of March.

6 Dr. Gibson was charged with repeated malpractice by

7 the Investigative Committee.

8 What I am giving you is a voluntary surrender of

9 license to practice medicine in the State of Nevada while

10 under investigation signed by Dr. Gibson as well as a copy of

11 his license to practice medicine in the State of Nevada.

12 You will notice that Dr. Gibson in his own

13 handwriting has added the word "alleged." Certainly the

14 malpractice at this point in time are alleged.

15 The Investigative Committee has approved me

16 accepting the voluntary surrender of the license to practice

17 medicine while under investigation. It will be reportable as

18 a serious offense. Dr. Gibson has voluntarily agreed that he

19 will discontinue the practice of medicine in the State of

20 Nevada and I recommend that you accept this surrender of his

21 license.

22 DR. BUCHWALD: Mr. President, I would like to move

23 the acceptance of the surrender of license by Dr. Gibson

24 while under investigation.

25 DR. HUG-ENGLISH: Second.

DISCOVERY REPORTING (775) 329-3500

1 DR. ROSENCRANTZ: Motion and second. Everybody can

2 participate in the vote.

3 DR. STEWART: May I ask: Does this gentleman also

4 have legal counsel?

5 MR. LEGARZA: Sir?

6 DR. STEWART: Does the gentleman have legal

7 counsel?

8 MR. LEGARZA: The gentleman does, Fred Pinkerton,

9 attorney practicing in the State of Nevada practicing in

10 Reno.

11 DR. ROSENCRANTZ: Call for the question. All those

12 in favor?

13 Aye.

14 DR. ROSENCRANTZ: Any opposed?

15 There being no opposed. Chair votes in favor. The

16 motion carries.

17 --oOo--

18 I, Stephanie Koetting, CCR #207, do hereby certify

19 that the foregoing transcript, consisting of pages 1 through

20 21, is true and correct to the best of my knowledge, skill

21 and ability.

22 DATED: This 25th day of March, 1999.

23 _________________________________

STEPHANIE KOETTING, CCR #207

DISCOVERY REPORTING (775) 329-3500