A.. Med~cal A. Norvelle A 2018-10-30.pdf · Certificate Number A 17446 to respondent on July 1, 1957. At all times relevant.herein, said Certificate was in full force and effect and

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

KIMBERLY KIRCHMEYER, Executive Director, · Medical Board of California, Department of Consumer Affairs, State of California,

Petitioner,

V.

NORVELLE A. HARRIS, M.D.

Physician's and Surgeon's Certificate No. A 17446,

Respondent.

Case No. 800-2016-022834

OAH No. 2018100442

DECISION AND ORDER ON PETITION FOR INTERIM SUSPENSION ORDER FOLLOWING NOTICED HEARING

Mary Agnes Matyszewski, Administrative Law Judge, Office ofAdministrative Hearings, State of California, heard this matter in San Diego, California, on October .30, 2018.

Christine A.. Rhee, Deputy Attorney General, represented petitioner Kimberly Kirchmeyer, Executive D_irector of the Med~cal Board of California.

Gregory D. Werre, Attorney at Law, Reback, McAndrews & Blessey, LLP, represented respondent Norvelle A. Harris, M.D., who was present at this hearing.

The matter was submitted on October 30, 2018.

FACTUAL FINDINGS

License History and JurisdiCtion

1. · The Medical Board of California (board). issued Physician's and Surgeon's Certificate Number A 17446 to respondent on July 1, 1957. At all times relevant.herein, said Certificate was in full force and effect and will expire on February 28, 2019, unless renewed.

2. On October 10, 2018, petitioner served and filed the Petition for Interim, Suspension Order, a Memorandum of Points and Authorities ih support of the petition, a Notice of Lodgment of Exhibits in Support of the Petition attaching Exhibits 1 through 3, and a Notice of Hearing. The petition alleged that respondent suffers from "a probable mental cognitive disorder" that renders her unable to safely practice medicine. Petitioner asserted that the Petition and Supporting Exhibits and Declarations satisfied the criteria for issuance of the requested intefim order pursuant to Government Code section 11529.

Respondent opposed the issuance of the Interim Order of Suspension and asserted that· she does not suffer from cognitive deficits that render her unable to safe.ly practice mediCine and petitioner's evidence did not prove otherwise. In support of her position, respondent submitted an Opposition with a Memorandum of Points and Authorities, the Declarations of Dr. Plotkin, Dr. Paster, respondent and respondent's attorney, with supporting exhibits. Respondent contended that the Petition for Interim Suspension Order should be denied.

As of the date of this hearing, no accusation had been filed in this case.

Petitioner's Exhibits

DECLARATION OF DUNCAN FRASER

3. Duncan Fraser, an investigator with the Department of Consumer Affairs, Health Quality Investigation Unit, submitted a declaration.signed under penalty of perjury. In it he identified his job duties and investigation of this matter. He stated that "[ o ]n or about December 20, 2016, Respondent's investigation was reassigned to me." Investigator Fraser obtained a certified copy of the California Department of Justice Controlled Substance Utilization Review and Evaluation System (CURES) physician prescribing history for respondent from June 1, 2016, through June 6, 2018. The CURES report showed that respondent wrote approximately 30 prescriptions for one patient 1 for propylene glycol, estriol, and testosterone2 from August 8, 2017, through January 17, 2018.

1 Petitioner did not identify the sex or age of the patient and the CURES report was not offered into evidence. It did not appear that Investigator Fraser obtained the patient;s records and no patient records were offered in this hearing.

2 Propylene glycol is an organic compound, commonly used as a drug solubilizer in topical, oral, and injectable medications. Estriol is a steroid, weak estrogen, and minor female

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On June 6, 2018, Investigator Fraser met respondent at her office at Sabre Sciences. He ~sked her questions about her position there and she told Investigator Fraser that she did not see patients, only patient lab results. When asked about prescribing medications for the one patient, respondent initially was confused and did not seem to recall the patient. Respondent then told Investigator Fraser that she had a "vague recollection" of the patient but did not recall examinii:ig the patient. ·

During the interview, respondent appeared to have a diffi~ult time understanding some oflnvestigator Fraser's questions, which he repeatedly needed to rephrase. Respondent also recited several lines of Shakespeare and described her early life in medical school without any prompts or questions from Investigator Fraser. At the end of the interview, Investigator Fraser asked respondent if she would agree to a voluntary mental evaluation pursuant to B,usiness and Professions Code section 820, and she agreed. Investigator Fraser's report was not introduced in evidence. ·

DECLARATION OF DR. KIRSTEN, HIS CV, AND REPORT.

4. ·Markham Kirsten, M.D., graduated cum laude in 1971 from Harvard College with a Bachelor of Arts degree. In 1975 he graduated from New York University School of Medicine. He did a medical internship from 1975 to1976, and a psychiatric residency from 197 6 to 1979, both at New Yark Medical College, Metropolitan Hospital. He has been licensed in California since 1978. Dr. Kirsten did a Visiting Fellowship in Electroconvulsive Therapy at Duke University School of Medicine in 2005. Dr. Kirsten is board certified in forensic psychiatry, addiction psychiatry, geriatric psychiatry, psychosomatic medicine, and psychiatry. Dr. Kirsten is a Fellow of the American Psychiatric Association (APA) and became a Life Fellow in 2013, the highest membership status possible in the APA. Dr. Kirsten enjoys hospital privileges at several facilities and his curriculum vitae (CV) identified his extensive professional experience, professional activities, presentations, publications and research activities. Dr. Kirsten has a psychiatry practice at Kaiser­Riverside-Canyon Crest in Riverside, California. He has been an expert reviewer for the board since 2012 and an expert reviewer for the Physical Therapy Board of California since 2013.

In his declaration, Dr. Kirsten stated that he was contacted on August 22, 2018, by Investigator Fraser to review materials and conduct a psychiatric evaluation of respondent. Dr. Kirsten performed his examination on August 27, 2018, and authored a report. Among the materials he considered were respondent's medical records from Dr. Mathioulakes, the CURES report, and Investiga,tor Fraser's report. Dr. Kirsten noted that respondent was 86 years old at the time of his examination.

sex hormone, commonly used as a medication in menopausal hormone therapy. Testosterone is the primary male sex hormone and an anabolic steroid, commonly used as a medication in the· treatment of low testosterone levels in men and breast cancer in women.

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Dr. Kirsten wrote that the board's investigation began on a referral from the Drug Enforcement Agency (DEA) whose agent interviewed l'espondent in May 2016 and was concerned she was unable to physically practice medicine. The DEA agent observed that · respondent had difficulty rising from her seat, difficulty ambulating, and difficulty speaking. In 2011 respondent had asked for her DEA registration to "be retired or discontinued" because she "believed that an unscrupuious potential business associate, after obtaining a copy of her DEA credentials was using her DEA number and forging her signature on counterfeit prescriptions." Dr.Kirsten wrote that respondent told the DEA agent she wanted her DEA registration "not to prescribe narcotics but so she could prescribe controlled

. medications, growth hormones and steroids. She predicted she wouid act as a temporary prescribing doctor prescribing medication for patient's [sic] coming to Sabre from out of state." Respondent told Dr. Kirsten that her "DEA number was to allow her to purchase for the laboratory reagents. "3

Dr. Kirsten wrote further that after he interviewed respondent, he called her and "specifically asked her about the patient [name redacted] who received multiple · prescriptions" from respondent during 2017. The "prescriptions were for ethylene glycol (used in e-cigarettes as a solvent and in cosmetics), estriol and estradiol (a female hormpne) and testosterone (a male hormone). She did not remember these prescriptions and when I asked if these were substances used by one of the laboratories, [she] still could not remember these prescriptions."

Dr. Kirsten took respondent's pertinent background history. He noted that respondent attended the University of Illinois both as an undergraduate and for medical school, graduating in 1956. She did a pathology residency at the West Los Angeles Veterans Hospital following which she became a partner in a clinical laboratory, Geleris-Harris Laboratory, which she later sold. Dr. Kirsten's "Google search" revealed that the laboratory Was incorporated in 1969. Respondent is board certified in pathology. She works at three different locations, "rationalizing the need to work arising from the poor income she received as a· female in the medical field." Respondent is employed five days per week doing administrative work at the 'Sunset Surgical Center "overseeing quality and writing policies and procedures." She hoped to do this work through the spring of 2020 when the clinic will be recertified. Dr. Kirsten wrote that respondent also works "part-time, about once a month at 'a small lab,' the Ashley Clinical" where she "oversees quality control." Dr. Kirsten wrote that his "internet search suggests this clinic' caters to a certain population anxious about certain poorly defined illness [sic]." Dr. Kirsten noted that although respondent described the laboratory as "a research laboratory," it "sells various nostrums on its web page." Respondent also works ohe night a week at Sabre Science which "focuses in nutrients and supplements and tests bodily fluid for these deficiencies." Dr. Kirsten noted: "I spent some time trying to clarify [respondent's] responsibilities at these three entities but I do not understand her work there." ·

3 None of this information was contained in Investigator Fraser's declaration offered at this hearing and the investigation report was not offered in evidence.

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Dr. Kirsten wrote that respondent currently lives with a 69-year-old nurse, has performed for the past 30 years in her church choir, and attends symphony concerts. She told Dr. Kirsten that she gave up driving about one year ago due to hip pain, but Dr. Kirsten noted that Investigator Fraser's report indicated she relinquished her license after an accident with a bus. Respondent uses Access Services, public ridesharing for the disabled; manages her own finances, shopping and housing; and has self-published several books - one in poetry, mostly iambic pentameter, and the other "a thick historical novel."

Respondent has had no psychiatric treatnient and hc;ts never taken any psychiatric medication. She abstains from alcohol and substances of abuse. She has never been traumatized by a severe motor vehicle accident nor attacked or abused. She was seen twice by a psychiatrist. Her first time was as a child after receiving an electric shock from biting ·into an electric cor~ when her mother was worried she had a speech impediment that respondent called "stuttering.'' No treatment was advised. The second time was in college because the school's administration felt she could not attend medical school due to her stuttering, but she was "cleared for medical school." Dr. Kirsten wrote: "A google [sic] search reveals that the psychiatrist who saw respondent in college was involved in the Manhattan Project ... But later switched to medicine ... [becoming] a psychiatrist and psychoanalyst." It was unclear why Dr. Kirsten referencetl this detail in his report.

Dr. Kirsten documented respondent's current medications. She does not use narcotics · or psychotropic medications. She takes alendronate (Fosamax) for osteoporosis, Amiodarone for paroxysmal atrial fibrillation, Lopressor amlodipine and Lasix for hypertension and kidney disease, anastrozole for breast cancer, and Meclizine for dizziness. 4

Respondent had a lumpectomy for breast cancer with no recurrence six years ago and a hystere~tomy. She suffers from spondylitis of the back, scoliosis and bilateral hip and knee replacements. He noted that her orthopedic difficulties caused her to stop driving.

Dr. Kirsten performed a mental status examination, noting that respondent arrived on · time, was "alert, oriented, coherent, rational and pleasant." She was tastefully groomed "in a dark red dress, matching hat and matching agate necklace .. Her appearance was very unusual due to a marked curvature of the spine, requiring her to use a 4 wheeled walker which was loaded with her personal belongings: She ambulated independently but slowly with her face looking downward."

Dr. Kirsten noted thatrespondent "was neither dysphoric nor agitated but admitted spontaneously that she was 'a little anxious because of this interview.' Speech, despite a stutter, was overly productive, mildly pressured but normal in volume. Language shows a sophisticated vocabulary. Thoughts were not goal oriented but were quit [sic] circumstantial

4 As one of her arguments regarding the unreliability of Dr. Kirsten's report, respondent argued that Dr. Kirsten referenced in one part of his report that respondent could not identify her medications but in this part of his report he listed her medications. However, that argument was not persuasive because Dr. Kirsten reviewed respondent's personal medical records .and he may have obtained the medication information from those records.

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and tangential requiring me on many occasions to bring the topic back to her history." Respondent discussed at length Shakespeare plays and was very knowledgeable about the characters and story of several plays. "She correctly recited famous soliloquies and discussed staging of plays by male and female actors." However, Dr. Kirsten reported that despite respondent's "erudite knowledge, she did not remember the names of medications she had taken for years, [and] could not clearly explain to me her role in the three worksites. She repeated herself on a few occasions mentioning [past events] more than once."

Dr. Kirsten found no evidence of thought disorder. Respondent described the· rationale for terminating her DEA registration as a way to avoid its "exploitation and miss­use." Dr. Kirsten found no evidence of paranoia, psychoses or o.utright illogical thinking. Respondent was not dangerous. Her "judgment and insight was impaired vis a vis her career and skills. She had significant obsessional traits." Respondent's impulse control was good. Dr. Kirsten reported the results of the clock test as: "circle was not even, but irregular and

· quashed, numbers were complete but miJdly irregular in placement and hand placement for time 1 :55 was perfect." Dr. Kirsten reported that respondent scored a 24/30 on the Mini~ mental status exam, noting: "Unable to subtract beyond 100-7; for 3 stage command took paper with the right ratherthan left hand; intersection of pentagon was mildly skewed."

In the "Discussion of Disabling Conditions" section of his report, Dr. Kirsten wrote:

I was struck by the contrast between [respondent's] a]?ility to. quote Portia's speech in the Merchant of Venice and other speeches of Shakespeare and her inability to communicate her job.responsibilities at the three different facilities. She could not explain why her DEA was needed, and whether she was treating patients. If her number was missed before by others [sic], what would stop that from reoccurring, especially since she may not remember giveri [sic] out her number to others. Similarly, though she demonstrated clear memory for events that occurred 80 years ago~ she did not recall the names of medications she takes daily for many years. She was perturbed by someone using her DEA number in the past but not the possibility this could re-occur, even when I discussed with.her many prescriptions in CURES from last year. She had no reservations concerning her work for these labs nor the work the labs performed, tho.ugh I wonder if those laboratories provide medically necessary and approved treatment[.] (Her full-time

·work was with a clinic that advertises for laser hair removal; the other two labs seem to do unnecessary laboratory tests and marketing of nostrums. There is the probability these clinics or laboratories my [sic] exploit her for her medical license and DEA certificate.[)]

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The clock test was only minimally deficient with some visual motor errors. The Folstein Mini-mental status exam shows no

· errors in recall after one minute but inability to do serial subtraction and some errors again in the visual skills in the interlocking pentagram. 5 ·

During my interview she was oblivious to her significant digressions though I warned her she was talking about the history of others 60 years ago, and not her story. Despite her over-production of memories about events in the years during and after World War II, there was a dearth of information about her current functioning. She did not exprnss any self-aw.areness about her difficulty ambulating at work other than recognizing that she could be a victim of a mugging.

The DSM 56 lists neurocognitive domains that are impaired in cognitive disorders (p593-595).

I found problems in complex attention (took a long time to tell me what her tasks were). There were errors in learning and memory (mentioned above). Language was impaired with problems with word finding: recalling her medication. There were minor errors in perceptual motor fields with a squashed clock skewed pentagram figures. I also found problems in social cognition: this was an interview re her ability to function as a doctor that she was showing me her poetry books written · years ago. She perseverated with long digressions about events

· in the p~st.

I am not sure re the etiology of her mild cognitive deficits. A couple of years ago her EEG was normal as were her thyroid functions and other metabolic measures. She has some kidney

. disease. She has paroxysmal atrial fibrillation and hypertension putting her at risk for cerebral vascular disease. She has mild word finding issues and she is 86, suggesting the start of Alzheimer's disease.

Dr. Kirsten's DSM-5 diagnosis was "probable mild cognitive disorder due to multiple etiologies." The "Summary and Recommendations" section of his report stated:

5 Dr. Kirsten referred to it as a "pentagon" in the earlier portion of his report.

6 The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) provides the diagnostic criteria used by·clinicians to make diagnoses.

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[Respondent] is not demented. She functions independently, takes care. of her activities of daily living and instrumental activities of daily living (finances, shopping,.trahsportation). However, in her professional life, I doubt that she is functioning. She has affiliated herself with laboratories that may not be delivering good medical care. She is very confused with what exactly she does at these three worksites. I doubt she can write policy and procedures since she has difficulty staying on topic during the. conversation. I cannot see how she can check laboratory tests", perform any· kind of quality checks when she cannot perform simple subtraction. If she cannot keep track of her own medications, how will she evaluate the procedures and handling of chemicals in the laboratory? How, will she monitor quantities, temperatures, durations, deadlines if she has so much difficulty with arithmetic?

[Respondent] at her. ripe age of 86 is to be admired for her pluck and work ethic. However, she herself recognized that her cousin could not dance in the ballet corp [sic] due to injury and had to leave the stage. With mild cognitive impairments . superimposed on her ambulation handicaps [respondent] must acknowledge that the time.has come to leave the stage of providing medical care.

Though her cognitive problems are subtle, the reality of her · advanced age and underlying heart, kidney and hypertensive problems, foreshadows that her cognitive deficits wl.11 quickly exacerbate in the near future. For this reason I do not find [respondent] safe to practice medicine at this time:

In his declaration Dr. Kirsten stated that respondent"could not remember the names of medications she has taken for years," "could not explain her-duties and responsibilities for her three current positions," "could not explain why her registration with the [DEA] was needed for her positions" and could not state "whether she was seeing patients." During the examination, Dr. Kirsten "found errors in learning and memory and problems in judgment and insight." Respondent "was unable to subtract beyond 100 minus seven (7), a standard exercise in the mini-mental status examination." Dr. Kirsten also "found problems in social cognition, where respondent perservated [sic] with long discussions about events in her past." Dr. Kirsten had to repeatedly bring the topic back to respondent's patient history because "her thoughts were not goal oriented." Dr. Kirsten stated: ·

It is my opinion that Respons-Ient has probable mental cognitive disorder due to multiple etiologies.. I have serious concerns about Respondent's ability to safely work as a ·

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physician and surgeon, given her confusion regarding what she does in her cunent professional positions, her difficulty staying on topic during my examination of her, and her difficulty in

· performing basic subtraction during the mini-mental status examination. For these. reasons, I .do not find Respondent safe to practice medicine at this time.

Respondent's Exhibits

DECLARATION OF DR~ PLOTKIN, CV, AND REPORT

5. Daniel Alan Plotkin, M.D., M.P.H., Ph.D., received his Bachelor of Arts degree, cum laude, in bacteriology from University of California, Los Angeles (UCLA) in 1973. He attended graduate school at UCLA from 1973 to 1974 in the Department of Microbiology, College of Letters and Sciences. He graduated from University of Southern California, School of Medicine in 1978. He did an internship in internal medicine at UCLA from 1978 to 1979, three months of which were in geroneuropsychiatry. He did his residency in psychiatry from 1980 to 1983 at UCLA. He did a fellowship at UCLA in geriatric psychiatry from 1983 to 1985. He was a clinical associate at the Los Angeles Psychoanalytic Society and Institute from 1985 to 1995, an associate member from 1995 to 2013 and a full member earning his Ph.D. in 2013. Dr. Plotkin also earned his Masters of Public Health in 1991from the School of Public Health, Division of Public Health, UCLA. Dr. Plotkin was licensed to practice medicine in California in 1979. Dr. Plotkin is a practicing psychiatrist with certification in the subspecialty of geriatric psychiatry.

Dr. Plotkin's CV identified his academic and staff appointments, memberships, committees, task forces, board appointments and teaching/supervisory experiences. He is currently a clinical professor in the Department of Psychiatry and Bio behavioral Sciences at UCLA and a faculty member at the New Center for Psychoanalysis. He supervises

. psychiatry residents and geropsychiatry Fellows at UCLA. Dr. Plotkin is a journal reviewer for several publications and has received numerous awards, including being recognized as a distinguished fellow from the American Psychiatric Association, a Best Doctor in America, a Southern California Super Doctor, a Top Doctor in Los Angeles and a Distinguished Life Fellow from the American Psychiatric Association .. Dr. Plotkin has authored several articles, book chapters and abstracts.

Dr. Plotkin evaluated respondent on October 24, 2018, and reviewed Dr. Kirsten's report. It appeared this was the only document he reviewed. Dr. Plotkin wrote that respondent is "under investigatiqn for capacity to continue to work as a physician, for reasons that are not entirely clear, but may be related.to a complaint by a disgruntled patient, and an interview by a DEA agent." Dr. Plotkin interviewed respondent, "gathered information about her functional status, and her ability to manage her professional life." He also "performed a mental status examination, including administration of the Folstein Mini Mental State Exam (MMSE, a standardized cognitive examination used in older adults) as well as some supplemental. questions addressing her general fund of knowledge and her

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knowledge of current events, and her 'executive' functions such as abstract thinking, planning, decision-making, andjudgment."

Dr. Plotkin noted that respondent "functions weU in general, and has no problems with basic or advanced activities of daily living, despite significant handicaps (e.g., orthopedic conditions resulting in a mobility impairment)." He noted that she stopped driving a few years ago due to her orthopedic conditions. She now manages transportation using a combination of ACCESS and Lyft. She is active in her church, where she has sung with her choir for many years. She has also written books and poetry collections and maintains a garden. Dr. Plotkin conducted a mental status exam and reported:

[Respondent] was alert and cooperative. She clearly understood the nature and purpose of our meeting, and she was fully able to engage in the interview and examination. She was aware of her· environment, and expressed interest in my office and business. I suggested that we postpone that discussion until the end of our visit (see below). She was nicely dressed, with makeup and je\Yelry, and a red headband. She had a bent-over posture when standing, and she used a four-wheel walkerto assist with ambulation. She compensated for her posture when sitting, and made good eye contact. She did have a hearing impairment, .but it did not interfere with the interview or examination. There were no tremors or other involuntary movements. Her mood was generally good, and her affect was full and appropriate to mood content. Her thought process was generally logical and coherent, though she was circumstantial at times. She was able to reason logically and to use abstract concepts. There were no delusions or hallucinations evident. She was 1;1ot suicidal or homicidal. She had a good fund of general knowledge and she was knowledgeable about current events. She was aware of he~ 'mobility and hearing impairments, as well as her tendency to be circumstantial. In general, she demonstrated good insight and judgment. When I pointed out her tendency to digress, she was able to stay on point and answer questions appropriately. At the end of the visit she remembered her interest in my office and business, and she followed up with questions that were thoughtful and insightful.

Dr. Plotkin performed formal cognitive testing with the MMSE, and respondent scored 29 out of a possible 30. The only item she missed was the location of Dr. Plotkin's office as she was not familiar with that part of the city and had been told his office Was in another location. Other than that, respondent was "fully oriented. She had no difficulty with registration or with recall." Respondent's attention and concentration were good, she had no difficulty spelling "WORLD" backwards, and made only one mistake subtracting 7s from 100. Her language functions were "quite good, as was her ability to follow directions."

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Respondent could copy a figure, write a sentence without difficulty, and performed well on the clock drawing and Trails B tests. Dr. Plotkin noted that those two tests evaluate attention, concentration and some executive functions such as planning and decision-making.

Respondent was able to describe her three jobs and the reasons for challenging the possible suspension of her medical license. She provided references for each workplace and expressed· a well thought out plan to retire in the !Jext two years to focus on her writing. Respondent explained that this retirement plan would give her time to guide the surgery center through an upcoming accreditation survey and respond to any recommended remedies.

In the "Impression and Conclusions" section of his report, Dr. Plotkin concluded:

[Respondent] is free of psychiatric illness, is cognitively sharp, · is capable of continuing to practice medicine, and presents no

risk to the public. Her tendency to digress is known.to her, is not severe, and does not indicate a problem functioning on her jobs. Of course, I did not have an opportunity to discuss her actual work performance with supervisors or colleagues, but she did provide references for each worksite, so additional information could be obtained.

l)r. Plotkin reviewed Dr. Kirsten's report and found it "noteworthy that Dr. Kirsten's conclusions did not follow from his findings." Dr. Plotkin noted that Dr. Kirsten found respondent to have probable mild cognitive impairment and good functional status but

· doubted she was functioning in her professional life. Dr. Plotkin found many of Dr: Kirsten's opinions to be speculative and condescending, especially Dr. Kirsten's statement that respondent being at the "ripe age of 86 is to be admired for her pluck and work ethic." Dr. Plotkin stated that Dr. Kirsten's report had a "lack of connection between his findings and his conclusions," as well as "a number of specific issues" which Dr. Plotkin noted were as follows: Dr. Kirsten mistook a headband for a hat, he provided a summary score of24/30 on the "Mini-mental status exam" - which Dr. Plotkin stated is not the correct name for the test - but Dr. Kirsten provided little detail on the scoring; and Dr. Kirsten did not seem to know that the subtraction test is not a math test, but "a test of attention and concentration"; and that the alternative test of spelling WORLD backwards should be offered as an alternative to the subtraction test.

Dr. Plotkin further opined: "It seems likely that Dr. Kirsten does not know how to properly administer or score the test, and did not prqvide the alternative test, which would have raised the total score. [Dr. Kirsten] states that [respondent] presented 'skewed pentagram figures' but a pentagram is a five pointed star, not part of the test, as opposed to the intersecting pentagons that are used for the test." Dr. Plotkin opined that Dr. Kirsten's "interpretatfons of findings is [sic] faulty, e.g., his statement that 'language was impaired with problems with word finding: recalling her medication' suggests that he does not appreciate the difference between recall and language. [Dr. Kirsten] suggests that

. [respondent's] supposed problem with 'staying on topic' would prevent her from writing policy and procedure." Dr. Plotkin was also critical that some of Dr. Kirsten's "methodology

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. is worrisome, as he seems to have conducted internet searches about her workplace, leading to unsupported allegations ... " Additionally, Dr. Plotkin was critical that Dr. Kirsten "predicts that [respondent's] cognitive deficits will qufokly exacerbate in the future" because

·Dr. Plotkin believed that "[w]hile accurate predictions are difficult to make, [respondent's] excellent cognitive and functional status at age 86 actually indicates a probability of good functioning over the next five years. 'Thus, I am led to opine that a bias against older adults (ageism) may be contributing here."

In his declaration, Dr. Plotkin stated that he is "an expert in geriatric psychiatry and [has] trained students, residents, fellows and faculty in regards to geropsychiatry and geropsychology." He has lectured and authored articles about geriatric psychiatry. Dr. Plotkin stated: "It is my opinion after completing an appropriate evaluation that [respondent] is free of psychiatric illness, is cognitively sharp, is capable of continuing to practice medicine, and presents no risk to the public. Her tendency to digress is known to her, is not severe, and does no{ indicate a problem functioning on her jobs. [Respondent] is of sound mind and able to practice medicine." Dr. Plotkin further stated in his declaration that respondent's "excellent cognitive and functional status at age 86 actually indicates a probability of good functioning over the next five years."

DECLARATION AND CV OF DR. PASTER

6. David J. Paster, M.D., obtained his Bachelor of Arts degree from the University of North Carolina in 1967. He received his Medical Doctor degree from the University of Tennessee College of Medicine in 1970. He received board certifications in both general psychiatry and child psychiatry.· He is licensed in both Tennessee and California. He is an assistant clinical professor at UCLA where he is on staff at the Semel Institute for Neuroscience and Human Behavior. He has a private psychiatry practice and has performed expert medical reviews forthe board since 1996.

Dr. Paster was retained to review Dr. Kirsten's report. Dr. Paster opined that Dr. Kirsten's evaluation "is flawed because his data do.es·not adequately support his conclusions." Dr. Paster stated: .

Dr. Kirsten appears to inject bias into the report by attempting to briefly investigate the types of clinics where [respondent] works. However, this is beyond the scope of the examination and also out of his specialty as a psychiatrist. Dr. Kirsten states that [respondent] seems confused about her role in her professional ·positions and the type of work she does. However, the confusion appears to be on his part, rather than necessarily hers. She works in a different specialty and specialized clinics.

Dr. Paster noted that the Folstein Mini-Mental Status Exam (MMSE) Dr. Kirsten administered is a "brief 10 to 15 minutes screening test for cognitive difficulties or dementia and the clock drawing test." Dr. Paster found respondent's score on the clock drawing test

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"adequate" and her MMSE score of 24 out of a possible 30 was close to a normal score which is in the 25 to 30 range. Dr. Paster opined that when an examinee has difficulty with the serial sevens subtractions task, as respondent did here, it is "standard practice" to substitute the scoring with the spelling of the word "WORLD" forwards and backwards. Dr. Paster stated that Dr. Kirsten should have administered the "WORLD" test'because respondent was only one point away from the normal range. Dr. Paster also opined that it was "significant" that Dr. Kirsten reported that respondent was anxious because anxiety ''can interfere with focus during the examination."

As to respondent's inability to.recall prescriptions given to one of her patients in 2017, Dr. Paster stated it is "very common for most physicians to not be able to recall one particular patient out of the blue from their entire workload, absent the opportunity to review the patient's medical chart." While this may be true for physicians with a full caseload, Dr. Paster did not appear to realize the CURES report only contained prescriptions for one patient. ·

Dr. Paster noted that although Dr. Kirsten found respondent oriented, able to manage her finances, maintain her household, had adequate grooming and could perform activities of daily living, he failed to mention that "these abilities comprise important and basic criteria for assessing both intelligence and cognition. The fact that these areas are intact would by themselves imply normal intelligence and cognition." Dr. Paster noted that Dr. Kirsten also did rtot comment on how respondent's lifelong speech problem of stuttering might affect the results. of the examination. Dr. Kirsten also failed to suggest any further work up to narrow· down the "multiple etiologies" he thought contributed to respondent's mild cognitive disorder. Finally, Dr. Paster was greatly concerned with Dr. Kirsten's opinion that respondent's cognitive deficits "will likely quickly exacerbate in the near future,'; stating that that opinion was "highly speculative" with "no basis, no foundation" nor any indication "when in the future ... such acceleration might occur," noting that it "would be speculation to do so."

RESPONDENT'S DECLARATION AND ATTACHMENTS THERETO

7. Respondent declared that she obtained her medical degree in 1956 from the University of Illinois. She did a resid.ency in pathology at the VA Greater Los Angeles Healthcare System and a pathology fellowship at the City of Hope Medical Center. She turned 86 this year. She currently works for three different employers, with most of her professional time spent at Sunset Surgical Center in West Covina, California, where she serves as its Medical Director.

Respondent attached a copy of the Sunset Surgical Center brochure to her declaration which identified the Center's accreditations from Centers for Medicare and Medicaid services (CMS/Medicare) and Accreditation Association for Ambulatory Health Care, Inc. (AAAHC Certified). The brochure contained several color photographs and documented that Sunset Surgical Center has two "spacious operating rooms," "spacious pristine preop and postop areas," "state of the art equipment," "beautiful open staff workstation" and a "fully ,

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_equipped GI suite." The brochure noted that Sunset Surgical Center is "proud to offer quality care, specialized state of the art equipment and advanced technology." The services and procedures offeryd at Sunset Surgical Center are: pain management; ear, nose and throat; general surgery; gastrointestinal; bariatric; urogynecology; urology; neurology; cardiology; orthopedic; podiatry; and cosmetic. In her declaration, respondent identified those surgeries, and stated that orthopedic surgery is also performed at Sunset Surgical Center. Nowhere does the brochure reference "laser hair removal" as a surgery performed. Respondent deelared that one of her duties at Sunset Surgical Center is to "assess tissue · submitted to pathology following surgery." Sunset Surgical Center was re-accredited by AAAHC in 2017 with respondent serving as the contact"person during the re-accreditation process. Respondent stated that she attached the brochure to refute Dr. Kirsten's incorrect opinion that Sunset Surgical Center advertises for laser hair removal.

Respondent also declared that shi:; drafts policies and procedures at Sunset Surgical . Center and attached a copy of.one she drafted.in April 2018. That three-page policy was titled "Quality Management of Patient Chart Records" and contained sections identifying the principle, requirements, methodology of chart review and a summary, and contained detailed information regarding what records should be in the patient's chart and the quality control tQ_ be used at the Center. Respondent also attached a copy of the poli~y and procedure titled, "Quality Management Study of Post-Operative Outcomes for 2017," that she drafted at the beginning of 2018. That five-page document contained sections identifying the problem or area of concern, objectives of the study, methodology, a.statistical table of total procedures and outcomes performed, a statistical compilation of collected and tabulated data, reasons for clinical follow-up, data analysis, a comparison of surgical outcomes, findings and conclusfons, corrective action/strategies, lessons learned, structured reassessments, and two sections summarizing the outcomes. Respondent attached a copy of a policy and procedure titled "Policy to Address the Issue of Children in the Ambulatory Surgical Center" that she drafted in 2017 "to address safety issues with children in the surgical center." That one-page document contained the policy principle and action to be taken. Respondent also declared that she attends meetings of Sunset Surgical Center's Board of Directors and writes the minutes.

Respondent is also employed part time at Ashrey Clinical Diagnostic Laboratory in Los Angeles where she serves as its Medical Director. Her "various responsibilities" include. "quality control, responsibility for policies and procedures and administrative functions." Ashley Clinical Diagnostic Laboratory "passed an important periodic state inspection" in early October 2018 and respondent "helped steward the lab through."

Respondent also works part time for a company called Sabre Sciences in Carlsbad, California, which "conducts research regarding natural supplementation for honnonal imbalances." Respondent disputed that she described Ashley Clinical Diagnostic Laboratory to Dr. Kirsten as "a research laboratory," stating she did not; she described Sabre Sciences, not Ashley Clinical Diagnostic.Laboratory, as a place where research is conducted. She also refuted Dr. Kirsten's statement in his report that he had reviewed Ashley Clinical Diagnostic

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Laboratory webpage because, to her knowledge, Ashley Clinical Diagnostic Laboratory does not have its own website.

Respondent further declared that when she met with Investigator Fraser in June.2018, she "was not informed about the reason for the meeting. Out of the blue, the investigator asked me about a specific patient from the past who I did not initially have a clear recollection of. At no time was I given an opportunity to refer to the medical records to refresh my recollection about the patient." Respondent declared further that during her evaluation with Dr. Kirsten she wore a headband, not a hat; felt anxious and tends to speak "with a pronounced ~tutter that has been present since childhood." Respondent declared that despite that condition, she "successfully completed years of medical school and training" and has "successfully practiced over the course. of many years in my medical specialty."

Respondent stated that during Dr. Kirsten's psychiatric evaluation, "the subject of Shakespeare came up. I have a particular fondness for Shakespeare. His plays helped me deal with my stutter as a child. Dr. Kirsten mentioned his appreciation for Shakespeare. It seems entirely natural in that moment to share our mutual appreciation for the works of Shakespeare." Respondent declared further:

During the psychiatric evaluation, there was no confusion on my part what I do professionally. Dr. Kirsten, however, did not seem to have an understanding about the workings of laboratories and research centers and he seemed condescending at times when interviewing me. Furthermore, in his report, he disparages an accredited surgery center and a laboratory that recently passed a required periodic state inspection both of which he obviously has no familiarity with beyond a suspect search of the internet.

Finally, respondent attached a photograph of the plaque she received recognizing her "award as one of the Top Doctors of North America in 2017." The attached photograph noted that Top Doctors of North America certified that respondent "has been recognized and distinguished as a Top Doctor in North America by the Who's Who Directories 2017."

DOCuMENTS ATTACHED TO ATTORNEY WERRE;S DECLARATION

8. Sharon P. Wilczynski, M.D., Ph.D., Professor.of Pathology, City of Hope National Medical Center, wrote a letter dated October 17, 2018, stating that she has known respondent professionally for over ts years. During that time, respondent sent consult cases from her practice to City of Hope National Medical Center, sending "one or two cases every couple of months" in "the last year or two." Respondent "personally brings the cases to our hospital and we review them together under the microscope. She has specific and appropriat_e questions about the case and her differential is reasonable." Dr. Wilczynski wrote:. "Often we need to do special studies such as immunohistochemistry to resolve the issue. Specifically I have found her professional judgment and assessment of the cases

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practical and pertinent. She always has the patient's best interest at heart, wo~ks diligently to obtain the con-ect diagnosis and overall is a very caring pathologist."

9. Akbar Omar, M.D., CEO of Sunset Surgical Center, Inc., wrote a letter dated October 25, 2018, stating that he has been professionally aGquainted with respondent for nearly 30 years, having worked with her on a part-time basis since 19.98 and a full-time basis for the past 14 ye~rs. He feels that he knows her "very well." ,Dr. Omar described respondent as "a conscientious, .dedicated, and patient care-oriented physician, a well-trained and reliable pathologist, and in recent years she has proven her capabilities as a diligent Administrator and Quality Improvement Coordinator as well." Dr. Omar.wrote: "We depend on [respondent] for the formulation and writing of necessary new policies and procedures, updating oider policies and ·procedures," writing the agendas and minutes for Board of Director meetings, preparing "Quality Improvement studies, and the planning and presentation of monthly in-service sessions to keep the surgical center staff up to date." Respondent is the coordinator for preparing the reaccreditation with AAAHC and, "[t]hanks to her efforts, we have successfully past [sic] for re-accreditation surveys and have received

, full three-year accreditation" each time. Dr. Omar has "the highest respect for [respondent] and the passage 'of time has not dimmed her capabilities nor her organizational skills."

10. Madhu B. Bansal, Ph.D., CLS, CEO/Manager of Ashley Clinical Diagnostic Laboratory, Inc., wrote a letter7 dated October 25, 2018, stating that the laboratory was established in 1987 as a "full service free standing clinical laboratory, screening a wide geographic area within Los Angeles County area, providing technically sophisticated; [sic] prompt apd accurate service to numerous family practice and specializing licensed physicians." Dr. Bansal wrote that the laboratory "test menu includes procedures within the clinical disciplines of Hematology, Chemistry, Urinalysis, Vitamin D, RPR, ANA and Sedrate [sic]." The lab is ~irected by respondent, a board certified pathologist, and supervised by a clinical laboratory scientist who holds a Ph.D. in microbiology. The lab recently passed its CLIA inspection by the Department of Public Health and prides itself on the "reproducibility, accuracy and specificity" of its work "including proficiency testing from AAB." Dr. Bansal wrote thafrespondent has been the Laboratory Director since 1998, serving in that capacify "with diligence, dedication and professionalism" and her "work has always been meticufous, exemplary and inspiring. Despite physical disabilities, she has proven to be reliable, dependable· and patient _care oriented."

11. Daniel Barajas, M.D., F.A.C.O.G., Chair Department ofOB/GYN, Citrus Valley Medical Center, wrote on October 26, 2018, that it was "an honor" to write a letter supporting respondent. He has known her for more than 15 years and described her as intelligent, hard-working and reliable. He can "depend on her knowledge" if he has questions concerning pathology reports. Respondent is someone who "makes those around her better." She has authored several books, is a great writer, and he enclosed a letter she penned for him last Christmas. The Christmas letter, was two pages in length, and was a

7 Dr. Bansal's letter contained many acronyms, none of which were explained at this h~ri~. .

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heartfelt expression of ways people can make the world a better place in light of all that is happening. The Christmas letter was extremely well-written and eloquent, contained correct grammar, syntax, and an extensive vocabulary and showed great insight. The Parties' Arguments

PETITIONER'S ARGUMENTS

12. Petitioner asserted that respondent has cognitive deficits that affect her ability to practice medicine safely based upon Dr. Kirsten~s opinions and testing performed. Petitioner argued that respondent's prescribing was also relevant given the board's duty to protect the public and ensure that physicians are safely practicing medicine. The CURES report showed that respondent prescribed to only one patient, so she should have been able to

· recall those prescriptions without having to check medical records. Petitioner argued that respondent's confusion regarding the prescriptions and her inability to recall the patient or performing an examination was concerning. Given that respondent is a pathologist, her prescribing medications was even more concerning as there appe~red to be no need for her to do so. Respondent's unrestricted DEA registration makes it possible for her to prescribe dangerous drugs, including opioids. Respondent's experts did not appear to appreciate that respondent had only prescribed to one patient and had not reviewed the CURES report.

Respondent was also unable to articulate her three employment positions or recall her own medications and she digressed and repeated herself during Dr. Kirsten's examination~ Dr. Kirsten's opinions were based on what respondent told him during the examination and nothing in respondent's declaration contradicted what Dr. Kirsten said respondent told him. Dr. Kirsten performed online research so he could better understand her.work, because respondent was unable to explain it to him. Her inability to do so further supported Dr. Kirsten's findings regarding her confusion. Dr. Kirsten also reviewed more documents than respondent's experts, making his opinions more reliable. Petitioner also argued·that respondent's improved score on Dr. Plotkin's testing was due to her having just undergone that testing with Dr. Kirsten.

Petitioner argued that the letters from respondent's employers should be discounted because they had an interest in her continuing to practice medicine. The Christmas letter should also be discounted because it was not related to medicine making its value minimal.

RESPONDENT'S ARGUMENTS

13. Respondent argued that the petition was limited solely to the issue regarding respondent's safety to practice because of her alleged cognitive issues. Respondent's

. prescribing practices should not be considered making her inability to recall prescriptions to one patient not relevant. Moreover, the medications piescriped were "hormonal supplements," and there was no evidence any patient had been harmed. Respondent further asserted that to prevail on the ISO, petitioner had to demonstrate she was likely to prevail at an accusation hearing; that the burden of proof at such a hearing is clear and convincing evidence such that petitioner had to demonstrate at this proceeding that she is likely to

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prevail by clear and convincing evidence.that respondent has cognitive deficits. The petition also incorrectly recited Dr. Kirsten's finding as "probable mental cognitive disorder," but he only found "probable mild cognitive disorder," which suggested a much more pronounced finding than Dr. Kirsten opined. Further, Dr. Kirsten's report was replete with inconsistencies as his conclusions were unsupported by his· findings and, as noted by Dr. Plotkin and Dr. Paster, those findings are doubtful.

Dr. Kirsten failed to follow the standard of care when he examined respondent. Had he employed the correct testing methodology, respondent would have received a normal test score on the MMSE. Dr. Kirsten failed to administer the WORLD test, especially after respondent was only one point away from a normal score. Dr. Plotkin's proper administration of the MMSE resulted in respondent receiving a normal score and revealed that she does not have a cognitive deficit rendering her unsafe to practice medidne. ·

, It was Dr. Kirsten, not respondent, who was confused. regarding respondent's employment. Her declaration and corroborating evidence demonstrated clearly what her job duties entail. Dr. Kirsten never asked respondent to submit copies of the policies and procedures he "doubted" she could write. He also went well beyond the scope of his evaluation when he performed Internet research and his research results were incorrect. Moreover, that research was never produced, so respondent cannot determine what he reviewed. Finally, Dr. Kirsten's opinions were speculative, with his report focusing on his "doubts," but doubts are not evidence and are insufficient to support an ISO.

The letters submitted in support of respondent from her employers further demonstrate she does not suffer from any cognitive deficits and:is fully capable of performing her work. Respondent disputed petitioner's argument that respondent did better on Dr. Plotkin's evaluation because she had taken the test with Dr. Kirsten, arguing that retaking cognitive tests does not lead to improved scores. Also, respondent is hard of hearing which caused her to. have trouble answering Investigator Fraser's questions, but he did not mention her hearing difficulty in his report or seem to be aware of it. It was also unfair to require respondent to recall her prescriptions to a patient without giving her an opportunity to review the patient's medicalrecords. Moreover, the CURES report was never produced, making it impossible to confirm its accuracy.

Respondent further argued that Dr. Plotkin speciaiizes in geriatric psychiatry and . performed a proper psychiatric evaluation that met the standard of care. As such, his

opinions that respondent had a normal test score on the MMSE, no cognitive deficits, and was safe to practice medicine, were more reliable than Dr. Kirsten's opinions. Respondent

· asserted that Dr. Plotkin's and Dr. Paster's opinions, as well as the evidence responcient submitted, demonstrate that petitioner did not meet her burden of proof and an ISO should not be issued.

II

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LEGAL CONCLUSIONS

Applicable Code Sections

1. Government Code section 11529, subdivision (a), provides:

The administrative law judge of the Medical Quality Hea'ring Panel established pursuant to Section 113 71 may issue an interim order suspending a 'license, imposing drug testing, continuing education, supervision of procedures, limitations on the authority to prescribe, furnish, administer, or dispense controlled substances, or other license restrictions. Interim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act or the appropriate practice act governing each allied health profession, or is unable to practice safely due to a mental or physical condition, and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare. The failure to comply with an order issued pursuant to Section 820 of the Business and Professions Code may. constitute grounds to issue an interim suspension order under this section.

Government Code section 11529, subdivision (e), provides that the administrative law judge shall grant the interim order where, in the ex.ercise of discretion, thejudge concludes that: "(1) There is a reasonable probability that the petitioner will prevail in the underlying action", and "(2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order." ·

2. Business and Professions Code section 820 provides:

· Whenever it appears that any person holding a license, certificate or permit under this division or under any initiative act referred to in this division may be unable to practice his or her profession safely because the licentiate's ability to practice is impaired due to mental illness,· or physical illness affecting competency, the licensing agency may order the licentiate tff be examined by one or more physicians and surgeons or psychologists designated by the agency. The report of the examiners shall be made available to the licentiate and may be received as direct evidence in proceedings conducted pursuant to Section 822.

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3. Business and Professions Code section 822 authorizes the board to revoke or suspend respondent's physician's and surgeon's certificate, or place him on probation, if it determines that respondent's "ability to practice his ... profession safely is impaired because the licentiate is mentally ill, or physically ill affecting competency .... " ·

Burden of Proof

4. Petitioner must prove the facts necessary to establish the conditions under Government Code section 11529 by a preponderance of the evidence. ·

Applicable Case Law

5.. It is not necessary to show patient harm to impose license discipline. (Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 772.).

6. An expert's opinion is only as good as·the facts and reasons upon which that opinion is based. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 924.)

Evaluation

7. Respondent's assertion that to prevail on the ISO~ petitioner had to demonstrate she was likely to prevail at an accusation hearing by clear and convincing evidence is rejected. The standard of proof in this matter is preponderance of the evidence.

Respondent's argument that the petition is limited to the issue regarding respondent's cognitive issues and not her prescribing practices is also rejected. Respondent's prescribing practices were central to Investigator Fraser's investigation. During his interview of respondent regarding the CURES report, he developed concerns regarding her cognitive abilities leading to his request for a psychiatric examination. In addition, Dr. Kirsten rendered opinions regarding respondent's inability to recall the prescriptions identified in the CURES report. As such, those matters were at issue in this hearing. Moreover, the basis of an ISO is the concern regarding a physician's ability to safely practice medicine. Practicing medicine includes examining patients and prescribing medications. Thus, respondent's prescribing practices were a proper issue for consideration.

Neither Dr. Plotkin nor Dr. Paster reviewed the CURES report and respondent's declaration did not state that she could recall the patient to whom she prescribed medications. Instead, respondent and her experts asserted it was unfair to require a .physician to recall prescriptions without access to the patient's medical records. While that argument might be persuasive in other circumstances, such as a treating physician with a busy practice, here where there was only one patient referenced in the CURES report, and respondent was a pathologist, that argument was not persuasive. Given respondent's declaration, the documents and letters of support introduced, and respondent's experts' reports regarding the nature of her employment, no viable explanation was offered regarding why these

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prescriptions were issued. Dr. Kirsten's opinions regarding the CURES report prescriptions· were not refuted by respondent or her experts. The facts introduced raised great concerns regarding respondent's pres,cribing practices and demonstrated that an order restricting her ability to prescribe controlled substances should be issued.

However, the only evidence regarding "patient care" referenced by petitioner and her expert was the CURES report. The underlying patient',s records were not offered at this hearing and were not refer:enced by Investigator Fraser in his declaration or reviewed and relied upon by Dr. Kirsten in formulating his opinions. As such, petitioner ·offered no evidence·regarding "patient care" necessary to support a finding that she would "likely prevail" or that there would be "injury to the public" if petitioner continued to treat patients. Additionally, the evidence regarding respondent's alleged cognitive deficits was also not persuasive. Dr. Kirsten~s opinions regarding respondent's cognitive functions were less reliable than the opinions offered by Dr. Plotkin and Dr. Paster.

Dr. Kirsten's Internet research resulted in him obtaining information of questionable value in a psychiatric assessment (he made potentially incorrect assumptions about the type of clinics where respondent worked), seeking unrelated information (the Manhattan Project), making disparaging remarks in his rep01i (nostrums, laser hair removal) and caused him to make erroneous conclusions regarding.respondent's employment (Sunset Surgical Center is an accredited surgery center). Dr. Kirsten's opinions wete based on his "doubts" and did not correlate to his findings. He found that respondent was alert, oriented, coherent, rational, pleasant, tastefully groomed, with no evidence of thought disorder, psychoses or paranoia, could function independently and perfonned her activities of daily living, including taking care of her finances, which d~monstrate one who can function well. Dr. Kirsten made assumptions about respondent's abilities without obtaining corroborating evidence - he "doubted" she could write policies and procedures but did not review ones she had written .

. Dr. Kirsten also speculated that respondent's employers may take advantage of her DEA registration and "doubted she was functioning in her professional life." He assumed her physical condition could put her "at risk" for cerebral vascular disease, despite a normal EEG, and might result in her having cognitive deficits. Dr. Kirsten opined that respondent's underlying physical coi:iditions and advanced age "foreshadows that her cognitive deficits will quickly exacerbate," which was extremely speculative. Although Dr. Kirsten found respondent's "judgment and insight was impaired vis a vis her career and skills," that appeared to be due to his confusion regarding her employment; it was not established that respondent was confused. Dr. Kirsten also opined about respondent's digression and discussion of Shakespeare, but respondent's declaration adequately explained that discussion. Further, Dr. Plotkin acknowledged respondent's minor digression but opined that respondent was aware of it and it did.not support a finding that she could not function at work. Finally, Dr. Kirsten's use of the words "ripe age of 86," "pluck," and "leave the stage of providing medical care," made him appear biased against the _elderly.

Dr. Plotkin's curriculum vitae demonstrated that he was eminently qualified to perform the testing and render the opinions that he did in this matter. Dr. Paster's curriculum

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vitae also demonstrated that he was eminently qualified to render the opinions he gave. Both Dr. Plotkin's and Dr. Paster's opinions regarding the WORL.D testing we.re per~uasive and, given that respondent's score was only one point below normal, petitioner did not explain why Dr. Kirsten did not administer the WORLD test. Petitioner's argument that respondent performed better due to re-testing was unsupported by any evidence. Although petitioner correctly argued that Dr. Kirsten reviewed more records than Dr. Plot).dn or Dr. Paster, that argument was only persuasive regarding respondent's prescribing practices, but not as it pertained to the opinions rendered regarding respondent's cognitive condition, especially when Dr. Plotkin also performed a psychiatric evaluation and did MMSE testing.

Dr. Plotkin determined that respondent did not have any cognitive deficits, was free of psychiatric illness, cognitively sharp, capable of continuing to practice medicine, and presents no risk to the public. Dr. Plotkin and Dr. Paster pointed out the many discrepancies contained in Dr. Kirsten's report and described the error in how he performed the MMSE. Their opinions were persuasive, not speculative, and well supported by the evidence. The corroborating evidence that respondent attached to her declaration, including letters and the brochure about her employment, as well as the letters attached to her attorney's deelaration~ supported respondent's argument that she did not suffer from a cognitive deficit and functioned well at work.

Based on the declarations and documents received into evidence, petitioner did not show by a preponderance of the evidence that there is a reasonable probability petitioner will prevail in an action that respondent suffers from cognitive deficits rendering her unsafe to practice or that the likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order. Thus an order suspending respondent from practicing medicine shall not be issued.

Petitioner did demonstrate by a preponderance of the evidence that there is a reasonable probability petitioner will prevail in an underlying action regarding respondent's prescribing practices and that the likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order. As such, an order restricting respondent's ability to prescribe controlled substances shall be issued.

ORDER

The Petition for Interim Order of Suspension, following a noticed hearing, suspending Physician's and Surgeon's Certificate No. A 17446 issued to Norvelle A. Harris, M.D., is granted in part and ·denied in part. While this decision and order remains in effect, respondent's certificate shall be subject to the following terms and conditions pending a full administrative hearing on the merits:

II

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Controlled Substances - Total Restriction

Respondent shall not order, prescribe, dispense, aqminister, furnish, or possess any controlled substances as defined in the California Uniform Controlled Substances Act.

Respondent shall not issue an oral or written recommendation or approval to a patient or a patient's primary caregiver for the possession or cultivation of marijuana for the personal medical purposes of the patient within the meaning of Health and Safety Code section 11362.5. ·

DATED: November 7, 2018

r=DocuSlgned by:

~~~~ ... MARY AGNES MATYSZEWSKI Administrative Law Judge Office of Administrative Hearings

Petitioner's counsel shall cause a copy of this Order to be served upon respondent in the most expeditious manner reasonably available.

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