COMMONWEALTH OF-PE SYLV-ANIA 3 DEPARTMENT OF STATE THE STATE BOARD OF NLEDICINE 733,- #241. Commonwealth of Bureau of ProfessiOnal and Occupational Affairs v. File NO. 13?49-07si?5?5?4 Samuel J. Bracken, M.D., Docket NO. 1413-49-13 Respondent FINAL ORDER +1.4 AND NOW, this 627 day of January 2014, noting that neither patty ?led an application for review and that the State Board of Medicine (Board) did not issue a Notice of Intent to Review, in accordance with 1 Pa. Code and 49 Pa.? Code 16.57, the hearing examiner?s adjudication and order dated December 19, 2014, appended to this order as Appendix A, is now the FINAL ORDER of the Board in this proceeding. This order shall be effective immediately. BUREAU OF PROFESSIONAL STATE BOARD OF MEDICINE OCCUPATIONAL AFFAIRS ACTING ANDREW J. BEHNKE, MD- MIS ONER CHAIR Respondent?s Address: 4 Samuel J. Bracken, MD. 85.52 Caitney Court Apt 26 Dublin, OH 43017 Prosecuting attorney: Keith E. Bashore, Esquire Board counsel: Wesley J. Rish, Esquire Date of mailing: 11' at} sea-strata 83 APPENDIX A DEC 1952.013. Departmen?E of State Protbonetary CGMMONWEALTH ere DEPARTMENT OF STATE THE STATE- 30AM) 0H mmcme Commonwealth of Bureau of Professional and Gceupa?omal' Affairs - . Docket No. 1413?49?13 V. File No. 1349-07854 Samuel J. Bracken, Jr, Respondent ADJUDICATION AND ORDER Jackie Wiest Lutz Chief Hearing Examiner Commonwealth of PennS?vaI?a 3 OFFICE OF GENERAL COUNSEL Department of State PO. Box 2649 . - HarrisburgPA17105-2649 - - DISTREBUTED (L (71.7) 7723686 eeo?ecueom CQUNSEL . HEARENG EXAIWNER .. OTHER - EHSTORY I This matter is before a hearing examiner- for the Department of State on a two-coimt - order to Show cause filed September 25, 2013', in which the Commonwealth alleged that Samuel J. Bracken, J11, M.D. (?Respondent?) is subject to disciplinary action under Sections 41(3) and (4) of the Medical Practice Act1 63 RS. 4.2241(3) and (4), in that Respondent was convicted of felony charges in a court of Ohio; and that Respondent had disciplinary action taken against his license to practice the profession by a proper licensing . authority of Ohio, respectively. I The Commonwealth mailed the OTSC to Respondent on September 25, 2013 via certi?ed mail, return receipt requested, and via ?rst class mail, postage prepaid, to Respondent at his last; address of record, 28 Reckledge Road, Wheeling, 26003, and to 8552 Cartney Court, Apt. 26, Dublin, OH 43017, a current address obtained through Lexis?Nexis? person locator service. The certi?ed mail sent to Respondent at the Wheeling, WV address was returned to the Commonwealth with instructions to forward thelrnail to the Dublin, Ohio address above. The OTSC sent by certi?ed and first class mail to the Dublin, Ohio address were not returned to the Commonwealth. Hence, delivery of the OTSC is presumed, and the Commonwealth accomplished service of its OTSC in accordance with the requirements of the General Rules of Administrative Practice and Procedure, 1 Pa. Code 31.1 e! seq, at l?Pa. Code I ?33.3l. I I The OTSC directed Respondent to ?le a written answer within thirty days of the date on the OTSC, and specifically advised that the factual allegations may be deemed admitted if Respondent failsto file an Answer Within the time period allowed. Respondent was also advised lAct?oi?December 20, 1985, No. 112, as amended, 63 PS. 422.1, et seq. 1 . that if he. failsto file an Ansxiter, the. State Board of Medicine (Board) may revoke, stiSpend, or impose other restrictions against his medical license; arid the Board may aiso impose a Civil penalty of up to $10,000.00 for each Violation of the Act. On October 30, 2013, the Commonwealth ?led a Motion to Enter Default and Deem Facts Admitted The MDFA was served upon Respondent on October 30, 2013, by ?rst class mail, postage prepaid, at the Dublin, Ohio address. Respondent did not file a response to the Mom. - I On October 31, 201-3, an Order beaming Facts Admitted and Entering dudgment by Default was issued, he Order deemed the factual allegations in the OTSC admitted and entered judgmerit by default against Respondent and advised him that an Adjudication and Order setting forth appropriate sanctions will be issued in due course. I This matter is now ripe for disposition. Brahmas or rarer l. Respondent holds a license to practice medicine and surgery I in I the of License No, MD009237E, which was issued on February 14, 1967. (Board records; OTSC at paragraph 1) 2. Respondent?s license expired on December 31, 1978, and batting any action by the Board, may be retreated, reactivated or reinstated thereafter upon the ?ling of the appropriate docurnentation and payment of the necessary fees. (Board records; IOTSC at paragraph 2) 3.. At all times pertinent to the Factual Allegations, Respondent held a license to practice medicine and surgery in the Commonwealth of (Board recerds; OTSC at . paragraph 3) i I Respondent currently resides at 8552 Cartney Court, Apt. 26, Dublin, Ohio 43017. (OTSC at paragraph 3; MDFA at paragraphs 3 10 and at attached Exhibits A and 5. On August 31, 2012, a Grand Jury issued an Indictment in the Franklin County Court of Common Pleas of Ohio in the matter of State of Ciao v. Samuel Bracken, Jr. at Case No. (OTSC at paragraphs 6 and 7; OTSC attached Exhibit A) 6. On February 26, 2013, Respondent entered a No Contest Rlea in the Franklin County Court of Common Pleas of Ohio in the matter of State of Ohio Samuel Bracken, Jr. at Case No. to one felony count 0t Unlawful Sexual Conduct with a Minor, in Violation of Section 2907.04 of the Ohio Revised Code, in that on or about February 4, 2012, Respondent engaged in sexual conduct (fellatio) with a minor between 13 and 16 years of age. (orsc at paragraph 8,9 and 12; orsc attached Exhibit nj - I .7. - Orr?April?, 2013, the-Franldincounty COurt of Common Pleas pf Ohio issued'a Judgment Entry in the matter of State of Ohio v. Samuel Bracken, Jr; at Case No. I (OTSC at paragraph 10 and attached Exhibit C) 8. Respondent was sentenced to four years of Community Control/Intensive Specialized Supenrision/Sex Offender Caseload and ordered to pay a fine of $5,000.00, along with other terms and conditions. I (OTSC at paragraph 13) 9. On February 26, 2013,? the same date of Respondent?s No Contest plea-in the criminal matter, Respondent surrendered his license to practice medicine and surgery in Ohio with consent to permanent revocation; on March 13, 2013, the State Medical Board of Ohio issued an Entry of Order In the Matter of Samuel J. Brae-ken, MD, permanently revoking Respondent?s medical license in Ohio. (OTSC at paragraphs 16, 17 and 18; OTSC attached Exhibit D) 10. On September 25, 2013, the Commonwealth mailed to Respondent an Order to Show Cause requesting that Respondent show cause Why the Board should not suspend, revoke or otherwise restrict Respondent?s license, or impose a civil penalty, based upon his felony criminal conviction in Ohio and the disciplinary action taken against him by the Ohio Medical Board. (Docliet No. l413~49~l3 OTSC) 11. The Commonwealth successfully served the OTSC upon Respondent at the 8552 Cartney Court, Apt, 26, Dublin, OH 43017, Respondent?s current address as obtained by the Commonwealth through Lexis?Nexis person locator service; speci?cally, the OTSC sent by ?rst class mail and certi?ed mail were not returned to the Commonwealth. (Docket No. 1413?49?13, Certi?cate of Service; MDFA at paragraphs 3 10 and at attached Exhibits A and B) . 1-2. The. that was sent 'via ?rst class mail has not. been returned to the .. . Commonwealth and therefore delivery of said document is presumed. (Docket No. 1413-49?13) 13. - The OTSC directed Respondent to tile a-ttrritten answer within thirty days of the date on the OTSC, and speci?cally advised that the factual allegations may be deemed admitted if Respondent fails to file an Answer wild?ri the time period allowed. (Docket No. l4l3?49?13 . OTSC tiled September 25, 20135 14; i The OTSC also'advised ReSpondent'that-if he?fails to file an Answer, the Board may revoke, suspend, or impose other restrictions against his medical license; and the Board may also impose a civil penalty of up to $10,000.00 for each and every Violation of the Act. (Docket I No. 1413?49?13 orsc ?led September 25, 2013) i i 15. The OTSC was ?led and mailed September 25, 2013 and Respondent was sewed with the more than thirty days have elapsed since Respondent was sewed with the OTSC. - (Docket No. 141349?13) I 16. Respondent did not ?le an {hamster to the OTSC. (Docket No. 1413?49-13) 17. On October '30, 2013, the Commoawealth ?led 'a Motion to Enter Default and D883: Facts Admitted (Docket No. I 18. The MDFA was served upon Respondent on O?ctober 30, 2013, by first class mail, postage prepaid, at the same address at which the OTSC had been served. (Docket No. 1413?49? 13 MDFA at Certi?cate of Service) I I 131.- ReSpondent did not ?le a respOHSe to the MDFA. (Docket No. 1413?49?13) 20. On October 31, 2013, an Order Beaming Facts admitted and Entering Judgment by Default was issued; this Order deemed factual allegations in the OTSC admitted and entered default against Respondent and advised him that an Adjudication and-Order setting forth appropriate sanctions will be issued in due course. (Docket No. 1413?49-13) 21. Respondent Was served with the OTSC and all subsequent pleadiogs, orders and notices-?led of record in this matter; (Docket No. 1413?49? 1 3) goncnosmns on LAW ., . l. The Board has jurisdiction in this matter. (Findings of Fact, Nos. 1?3) 2. ReSpondent has been afforded reasonable notice of the charges against him and an opportuni?q?to be heard in this proceeding, in accordance with the Administrative Agency Law, 2 ha, C.S. 504.. (Finding of Fact, No. 2i) 3. I Respondent is subject to disciplinaijr action under Section 41(3) of the Act, 63 P.S. 42.410), in that Respondent was convicted of Unlaw?il Sexual Conduct with a Minor, a felony in another state, Ohio. (Findings of Fact, Nos. 5 - 8) 4. - i?Respondent is subject to disciplinary action undei? Section 41(4) of the Act, 63. PS. that disciplinary action was taken against his license to practice medicine by the proper licensing authority of another state, Ohio. (Finding of Fact, Nos. 9 - 10) I BESCUSSEON The Commonwealth?s OTSC is brought under Sections 41(3) and 41(4) of the'Act, 63 PS. 422.41(3) and which provide as follows: ?422.41. Reasons for refusal, revocation, saspension or other corrective actions against a licensee or certi?cate holder The board shall have authority to impose disciplinary or corrective measures on a board~regulated practitioner for any or all of the following reasons: (3) Being convicted of a felony or being convicted ofla misdemeanor relating to" a health profession or receiving probation without verdict, disposition in lieu of trial or an Accelerate Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, a Federal court or a court of any other state, territory or country. (4) Having a license or other authorization to practice the profession revoked or suspended or having other disciplinary action taken, or an application for a license or other authorization refused, revoked or suspended by a proper licensing authority of another state, territory, possession or country, or a branch of the Federal Government. Specifically, the Comrnonwealth alleged in Count One of the OTSC .thatRespondent is subject to disciplinary action under Section 41(3) ofthe Act, 63 PS. 422.418), in that on February 26, 2013, Respondent was convicted of Unlawful Sexual Conduct with a Minor, a felOny, in the Franklin County Court of Common Pleas of Ohio. lhe Commonwealth alleged in Count/Two of the OTSC that ReSpondent is subject to disciplinary action nnder Section 41(4) of the Act, 63 PS. in that on March 13, 2013, the Ohio Medical Board permanently revoked Respondent?s license to practice medicine and surgery in Ohio; 8) - - facts deemedadlnittedi conclusively establish the above allegations?lTherefore, the . if?: . Commonwealth has met its burden of proof on both counts of the OTSC. I Section 42 of the Act, 63 P.S. 422.42, sets forth the type of disciplinary or corrective measures that. Inay be imposed for violations of the Act. Specifically, Section 42 of the Act provides as follows: 422.42. Types of corrective action Authorized the board is empowered to take disciplinary or corrective action against a board-regulated practitioner under the provisions of this act or pursuant to other statutory authority, the board may: (1) Deny the application for a license, certi?cate or any other privilege granted by the board. (2) Administer a public reprimand with or without probation. (3) Revoke, suSpend, limit or otherwise restrict a license or certi?cate. (4) Require the _board~regulated practitioner to submit to the care, counseling or treatment of a physician or a designated by the board. - (5) Require the board-regulated practitioner to take re?resher educational courses. (6) Stay enforcement of . any suspension, other than that imposed in accordance with section 40 [footnote omitted], and place a board- regulated practitioner on probation with the right to vacate the probationary order for noncompliance. (7) impose a monetary penalty in accordance with this act.2 . 63 P.S. 422.42. 2 A maximum civil'penalty up to one thousand dollars for each violation of the Act is authorized under Section 39(b) of the Act, 63 PS. 422.3903).- In addition, a maximum civil penalty up to ten thousand dollars for each violation of the Act is authorized under Section 908 of the Medical Care Availability and Reduction of Error Act (MCARE Act), Act of March 20, 2002, PL. 154, No. 13, 40 P.S. 1303.908. . .- . - . Inassessing an appropriate ismind?ful-ofits responsibility joioversee? the profession inT-a nianner that protects the public health and safety. Barron v. .State'Bd. of Medicine, 670 A.2d 765, 767 (Pa. melth. 1996), appeal denied, 679 A.2d 230 (Pa. 1996); Galena v. Department of State, 551 A.2d 676, 679-680 (Pa; 1988). See also, Sklar 1). Dept. of Health, 798 A.2d 268,275 (Pa. 2002), appeal denied, 845 A.2d 819 (Pa. 2004). With public protection in mind, the Board also considers the seriousness of the offenses and any mitigating evidence. The Board has no mitigating evidence to consider in this case. The Board. has a responsibility to the public to impose a disciplinary sanction that recognizes the seriousness of the permanent revocation of Respondent?s medical license in Ohio, and that safeguards the safety of the citizens of this Commonwealth. The Ohio Board?s permanent revocation of Respondent?s mediCal license represents the opinion of that board that Respondent is no longer fit .or quali?ed to hold the license. Indisputably, the Respondent breached the public?s trust and that of the medical profession by engaging in sexual activity with a minor. Based upon these facts, the Board would be remiss in its responsibilities if it imposed any sanction less than a revocation.3 - Based upon the foregoing findings of fact, conclusions of law and discussion, the following order will issue: 3 The Hearing Examiner recognizes that the Board is well within its authority to also impose against the Respondent the maximum civil penalty for each violation at issue._ Given the Respondent?s age and the Substantial monetary penalty that has already been levied against the Respondent by the Franklin County Courtof Common Pleas in Ohio, a civil penalty is not essential to the Board?s interest to safeguard citizens. .10 CMWONWEALTH oe Thems?vem I . DEPARTMENT STATE THE STATE BOARD oe seemcme Commoewea?h of Bureau of Professional and Occupational Affairs Becket N0. 1413-49?13 v. - File No; - 13=49~07854 Samuel J. Bracken, fr, Mil, Resp 011dth ORDER AND NOW, this 191!h day of December 2013, upon consideration of The foregoing ?ndings .of feet, conclusions of 18M;r and discussio?Yit is hereby that the license to practice medicine and surgery issued to Respondent Samuel J. Bracken, Jr., license no. - @00923713, is REVOKED. This ordei? shall take effect 20 days from the date of mailing unless otherwise ordered by the State Board of Medicine. . 1 BY ORDER: bx ?fa. w/ x" aekie Wiesf Lutz 'ef He mg Examiner or Respondent: Samuel J. Bracken, Jr., MD. 8552 Came)? Court Dublin, OH 43017 or the Commonwealth: Keith E. Bashore, Prosecuti?g Attorney OFFICE ore GENERAL COUNSEL . DEPARTMENT OF STATE OFFICE OF CHIEF COUNSEL PROSECUTION DIVISION PO. Box 2649 Harrisburg; PA 17105?2649 Date of Mailing: I December 19, 2013 (Medicine) nannAnrNG BY HEARING EMER . A party may file an application to the hearing examiner for rehearing or reconsideration - Within 15 days of the mailing date of this adjudication and order. The application must be captioned ?leplicorz?on for Rehearing?, ?Application/[or Reconsideration?, or ?prlico?on for. Rehearing or Reconsideration - It rnust state speci?cally and concisely, in nurnhered paragraphs, the grounds relied upon in seeking rehearing or. reconsideration; including any alleged error in the adjudication. If the adjudication is sought to be vacated, reversed, or modified by? reason of matters that have arisen since the hearing and decision, the inattei's relied upon by the petitioner must be set forth in the application. -- APPEAL TO BOARD An application to the State Board of Medicine for review of the hearing examiner?s adjudication and order must be ?led by a party within 20 days of the date of mailing of this adjudication and order. The application must be captioned for Review It must state speci?cally and concisely, in numbered paragraphs, the grounds relied upon in seeking the Board?s review of the hearing enaminer?s decision, including any alleged error in the adjudication. Within an application for review a party may request that the Board hear additional argument and take additional evidence. An application to the Board to review the hearing examiner?s decision may be ?led hreSpective or whether an application to the hearing examiner for rehearing or reconsideration is ?led. STAY OF HEARING ORDER Neither the ?ling of an application for rehearing andz?or reconsideration nor the filing of an application for review operates as a stay of the hearing examiner?s order. To seek a stay of the hearing examiner?s order, the party must ?le?an application for. stay directed to the Board. FILING AND SERVICE An original and three (3) copies of all applications shall lie-?led with: Prothonotary PO. Box 2649 Harrisburg, PA '17105-2649 A copy of all applications must also be served on all parties. Applications nins?t be received for ?ling by the Prothonotaiy withinthe tinge limits Speci?ed. The date of receipt at the office of Prothonotary, and not the date of deposit in the mail, is determinative. The ?ling of an application for rehearing and/or reconsideration does not extend, or in any other manner affect, the time period in which an application for review may be ?led. - - - - Revised 9/09 NOTICE 'The attached Adjudication and Order represents the ?nal agency decision in this matter. It rnay be appealed to the Commonwealth Court of by the filing of a Petition for Review with that COurt within 30 days after the entry "of the order in accordancewith the Rules of Appellate Procedure. See Chapter 15 of the Rules of Appellate Procedure entitled ?Judicial Review of Governmental Determinations,? Pa. RAP 1501 1561. Please note: An order is entered on the date it is mailed. If you take an appeal to the Comrrionwealth Court, you must serve the Board with a copy of your Petition for Review; The agency contact for receiving service of such an appeal is: - I a Board Counsel 2649 Harrisburg, PA 17105?2649 I The" name of the individual Board Counsel is identi?ed on the Order page of the Adjudication and Order. BEFORE THE STATE MEDICAL BOARD OF OHIO IN THE MATTER OF SAMUEL J. BRACKEN, M.D. ENTRY OF ORDER On February 26, 2013, Samuel J. Bracken, M.D., executed a Surrender of his license to practice medicine and surgery in Ohio with consent to permanent revocation, which document is attached hereto and fully incorporated herein. Wherefore, upon rati?cation by the Board of the surrender, it is hereby ORDERED that Certi?cate No. 35-03 8863 authorizing Samuel J. Bracken, M.D., to practice medicine and surgery in the state of Ohio be permanently REVOKED. This Order is hereby entered upon the Journal of the State Medical Board of Ohio for the 13th day of March 2013, and the original thereof shall be kept with said Journal. J. Craig Strafford, M.D., M.P.H. Secretary (SEAL) March 13, 2013 Date STATE OF OHIO THE STATE NIEDICAL BOARD PERMANENT SURRENDER OF CERTIFICATE TO PRACTICE NIEDICINE AND SURGERY Do not sign this agreement without reading it. An individual who permanently surrenders a certi?cate issued by the Board is forever thereafter ineligible to hold a certi?cate to Dractice or to apnlv to the Board for reinstatement of the certi?cate or issuance of any new certi?cate. You are permitted to be accompanied, represented and advised by an attorney, at your own expense, before deciding to sign this volunta? agreement. 1, Samuel J. Bracken, Jr., M.D., am aware of my rights to representation by counsel, the right of being fonnally,charged and having a formal adjudicative baaring, and do hereby freely execute this document and choose to take the actions described herein. 1, Samuel J. Bracken, Jr., M.D., do hereby voluntarily, knowingly, and intelligently surrender?y certi?cate to practice medicine and surgery, License Number 35.038863, to the State Board of Ohio [Board], thereby relinquishing all rights to practice medicine and surgery in out). I understand that as a result of the surrender herein I am no longer permitted to practice medicine and surgery in any form or manner in the State of Ohio. :2 I agree that I shall be ineligible for, and shall not apply for, reinstatement or restoration of certi?cate to practice medicine and surgery, License Number 35.038863, or issuance of any o?fller certi?cate pursuant to the authority of the State Medical Board of Ohio, on or after the date of signing this Permanent Surrender of Certi?cate to Practice Medicine and Surgery. Any such attempted reapplication shall be considered null and void and shall not be processed by the Board. I hereby authorize the State Medical Board of Ohio to enter upon its Journal an Order permanently revoking my certi?cate to practice medicine and surgery, License Number 35.038863, in conjunction with which I expressly waive the provision of Section 4731 Ohio Revised Code, requiring that six (6) Board Members vote to revoke said certi?cate, and further expressly and forever waive all rights as set forth in Chapter 119., Ohio Revised Code, including but not limited to my right to counsel, right to a hearing, right to present evidence, right to cross-examine witnesses, and right to appeal the Order of the Board revoking my certi?cate to practice medicine and surgery. 1, Samuel J. Bracken, Jr., M.D., hereby release the Board, its members, employees, agents, of?cers and representatives jointly and severally from any and all liability arising from the within matter. This document shall be considered a public record as that term is used in Section 149.43, Ohio Revised Code. Further, this information may be reported to appropriate organizations, data banks and governmental bodies. 1, Samuel]. Bracken, Jr., M.D., acknowledge that my social Permanent Surrender of Certi?cate Samuel J. Bracken, Jr., MD. Page 2 of 2 security number will be used if this information is so reported and agree to provide my social security number to the Board for such purposes. I stipulate and agree that I am taking the action described herein in lieu of further investigation of possible violation of Section Ohio Revised Code. EFFECTIVE DATE It is expressly understood that this Permanent Surrender of Certi?cate is subject to rati?cation by the Board prior to signature by the Secretary and Supervising Member and shall become effective upon the lastdate of signaturebelowk-g- 7 a J. CRAIG STRAFFORDT MD, MPH. SAMUEL J.B Secretary lALL/li (3 4 1w ?3 r' DATE W4. WM MARK A. BECHTEL, M.D. Supervising Member amp. l8 /3 020/; DATE Attom for Dr. Bracken DATE DANIELWSMASTER, ESQ. Eff Ti" Enforcement Attorney 3 E41250