[tI\’ 1 i 0EC012014 BEFORE THE NEW MEXICO MEDICAL BOARD IN THE MATTER Of MARK WALDEN, M.D. License No: 2007-0765 No. 2013-009 Respondent. ORDER OF THE BOARD On November 13, 2014 the New Mexico Medical Board (“Board”) reviewed the above styled case. Because several Orders have been issued in this case the following summary is included. 1. July 2013 Decision and First Order On July 8, 2013 after notice and hearing, the Board found that Respondent had violated the following provisions of the New Mexico Medical Practice Act: a. Section 61-6-1(D)(8), misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring renewal; b. Section 6 1-6-15(18), conduct likely to deceive, defraud or harm the public; c. Section 61-6-15(D)(21)(c), failure to report to the board any adverse action taken against you by a health care entity; d. Section 61-6-15(D)(29), conduct unbecoming in a person licensed to practice or detrimental to the best interests of the public; and e. Section 6 1-6-15(D), unprofessional conduct or dishonorable conduct as ftirther defined by Board Rule 16.10.2.8(C) NMAC, dishonesty. Based on those July 8.2013 Findings and Conclusions, the Board ordered that Respondent submit to a psychological evaluation. 2. December 2013 Order A psychological evaluation \as completed and submitted to the Board for the Board’s review. Based on the recommendations contained in the psychological evaluation the Board issued the following further order on December 3,2013: 1.M.O Mark Walden November 2014 Order Page 1 of4 1. Participate in and successfully complete a CME workshop regarding Professional Boundaries, such as the P324 course (a 24 hour live AMA Category I CME course on Boundaries sponsored by the University of California Irvine in partnership with Professional Boundaries, Inc., www.professional boundaries.com) or equivalent; 2. Review with his personal physician Respondent’s use of thyroid supplements; Discontinue use of recreational marijuana; 3. 4. Complete CPEP within six months of this order; and 5. If Respondent returns to medical practice the following protective measures will be instituted: a. Have a chaperone present whenever conducting a physical examination b. Post in his office a “Patient Bill of Rights” that includes, among other more mundane “rights of the patient,” the “right to be treated professionally without inappropriate physical examination or medical procedures” (or equivalent, and at the end of the document a number to call or address to send concerns in any patient rights are violated. In conformance with the Board’s December 3, 2013 Order, Respondent completed the CPEP evaluation and completed other terms of the Order. The CPEP report, which will be discussed below, also indicated that Respondent shotild be tested for physical and netiropsychological issues, to rule out that any of the issues identified in the CPEP report were not based in physical or neuropsychological problems. 3. August 2014 Order Therefore, on August 13, 2014 the Board issued an order which revoked Respondent’s license, but stayed the revocation and placed his license on suspended status and required a complete history and physical and neuropsychological examinations in accordance with the CPEP report. Respondent completed the physical and neuropsychological testing. November 13, 2014 Order At the November 1 3, 2014 meeting of the Board. the Board reviewed the above history of this case, the physical and netiropsychological examinations and the CPEP report and hereby renders the following Order: l.M.O Mark Walden November 2014 Order Page 2 of4 1. The CPEP report indicated that Respondent had substantial deficits in his ability to practice medicine. 2. Respondent demonstrated “an inadequate knowledge in general practice with broad-based deficiencies across most content areas discussed. His clinical judgment and reasoning were inadequate.” CPEP Report, Page 2. 3. Given these findings by CPEP, which are accepted by the Board, the Board finds that Respondent is not currently competent to practice medicine. 4. In conformance with the Board’s prior orders, Respondent license to practice medicine is revoked, but that revocation is stayed and Respondent license remains on suspended status, subject to the limitations expressed below. 5. Within two years from the date of this Order Respondent shall begin a Board approved full residency program. 6. Respondent shall complete a full residency in medicine before he tvill be allowed to apply for the reinstate his license to practice medicine. 7. If Respondent is accepted into the University of New Mexico Hospital residency program for a full residency’, he will be issued a New Mexico resident license. If Respondent is not accepted into a University of New Mexico Hospital residency program he will be responsible for finding a Board approved residency program in another state and Respondent will be responsible for the relevant licensure in the other state. 8. Once Respondent has successfully completed his full medical residency program he may move to reinstate his medical license. 9. If Respondent fails to begin a Board approved full residency program within two years of the date of this order the stay of the revocation of Respondent’s license shall be lifted and Respondent’s license shall be revoked, effective two years from the date of this Order. 10. If Respondent begins a full residency program within two years of the date of this Order but Respondent fails to complete a residency program within five years from the date of this Order, the stay of the revocation of Respondent’s license shall be lifted and Respondents license shall be revoked effective five years from the date of this Order. IT IS SO ORDERED. RIGHT TO JUDICIAL REVIEW Respondent may seek judicial review of the Decision and Order pursuant to NMSA 1978, Sections 61-1-17 and 39-3-1.1 with thirty days from the date of filing ofthe Boards Decision and Order. t.M.O Mark Walden November 2014 Order Page 3 of4 Date Steve Jenkusky, M.D. New Mexico Medical Board 1.M.O Mark Walden November 20 14 Order Page 4 of 4 BEFORE THE NEW MEXICO MEDICAL BOARD NÜV 25 ZO 1A\ IN THE MATTER Of MARK WALDEN, M.D. License No: 2007-0765 No. 20 13-009 Respondent. ORDER OF THE BOARD REGARDING COSTS On November 13, 2014 the New Mexico Medical Board (“Board”) reviewed the Prosecutor’s Motion for Costs, Respondent’s Response to Motion for Costs, and Prosecutor’s Reply in Support of Motion for Costs. The Board voted unanimously to GRANT the Motion and ORDERS payment for hearing costs in the amount of $4,853.17 in accordance with Section 61-1-4(G) NMSA 1978. IT IS SO ORDERED. \\Vs Dat Steve Jenkusky, M.D. New Mexico Medical Board I.M.O Mark Walden November 2014 Order Regarding Costs Page 1 of 1 t BEFORE THE NEW MEXICO MEDICAL BOARD IN THE MATTER OF MARK WALDEN, M.D. License No: 2007-0765 No. 2013-009 Respondent. ORDER OF THE BOARD On December 3, 2013, Respondent's license to practice medicine was suspended and ReSpondent was required to submit to a competency evaluation. Respondent submitted to the competency evaluation which was performed by the Center for Personalized Education for Physicians On August 7, 2014, the Board, after having reviewed the CPEP report, issued the following order: 1. Respondent's license to practice medicine is REVOKED, but that revocation is STAYED, and Respondent's medical license shall remain on SUSPENDED status. 2. Within one year of the date of this Order, Respondent shall obtain a complete history and physical examination and obtain a evaluation in accordance with the CPEP report. 3. Upon completion of a complete history and physical examination and a evaluation, the Board will then review those reports and make further orders in this case. IT IS SO ORDERED. 9 ll Sll?vi Datd Steve Jenkusky, M.D. Vice Chair, New Mexico Medical Board I.M.O Mark Walden Order Page 1 of 1 BEFORE THE NEW MEXICO MEDICAL BOARD IN THE MATTER Of MARK WALDEN, M.D. License No: 2007-0765 No. 20 13-009 Respondent. — ORDER OF THE BOARD A quorum of the New Mexico Medical Board (“Board”), having reviewed the Promises Evaluation of Respondent, voted unanimously to adopt page 7 Recommendations 1, 3, 4, 5, 6, but not to recommend item 2. Additionally, as to item 5, Respondent shall schedule and complete an assessment for practice competency in general, family and/or internal medicine procedures, to include urology, at the Center for Personalized Education for Physicians (“CPEP”), or a comparable program approved by the Board, within six months of the date of this Order. Therefore Respondent shall: 1. Participate in and successfully complete a CME workshop regarding Professional Boundaries, such as the PB24 course (a 24 hour live AMA Category I CME course on Boundaries sponsored by the University of California Irvine in partnership with Professional Boundaries, Inc. (www.professional boundaries.com) or equivalent; 2. Review with his personal physician Respondent’s use of thyroid supplements; 3. Discontinue use of recreational marijuana; 4. Complete CPEP or a comparable program, approved by the Board, within six months of this order; and 5. If Respondent returns to medical practice the following protective measures shall be instituted: a. Have a chaperone present whenever conducting a physical examination b. Post in his office a “Patient Bill of Rights” that includes, among other more mundane “rights of the patient,” the “right to be treated professionally without inappropriate physical examination or medical procedures” (or equivalent), and at the end of the document a number to call or address to send concerns in any patient rights are violated. Respondent’s medical license shall remain suspended until successful completion and receipt of the assessment report from CPEP or comparable program. The Board, after reviewing the competency assessment report, will then, in its sole discretion, determine licensure status. If physician does not complete the competency assessment within six months of the date of this order, Board retains the option of revoking Respondent’s license. IT IS SO ORDERED. Date Steve Weiner, M.D. Chair New Mexico Medical Board 6EFORE THE NEW MEXICO MEDICAL BOARD IN THE MATTER OF MARK WALDEN, MD. Case No. 2013?009 Respondent. License No. AMENDED DECISION AND ORDER The New Mexico Medical Board adepts, for its Decision and Order, the Hearing Officer?s Report submitted by John Appel, Esq., on June 13, 2013, attached hereto and incorporated by reference herein. CONCLUSIONS OF LAW Based on the Findings chact, the Board reaches the following conclusions of law: I. The Board has jurisdiction over the Respondent and the subject matter. 2. Respondent has been afforded all due process rights of his right to be heard pursuant to the Uniform Licensing Act. 3. has violated the following provisions of the Act as charged in the Notice of Contemplated Action: - Section 61 fraud or misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring renewal; Section 61?6-1 18), conduct likely to deceive, defraud or harm the public; - Section failure to report to the board any adverse action taken against you by a health care entity; - Section conduct unbecoming in a person licensed to practice or detrimental to the best interests of the public; and Section unprofessional conduct or dishonorable conduct as further de?ned in Board Rule NMAC, dishonesty. DEER The medical license of Respondent is hereby SUSPENDED until such time that he Page 1 of 2 undergoes a thorough evaluation, arranged by the New Mexico Monitored Treatment Program. The evaluation, including its ?ndings and recommendations, shall be submitted to the Board for their review and consideration. The ?ndings and recommendations of the evaluation must demonstrate to the Board?s satisfaction that Respondent is ?t to safely practice medicine. The Board, after reviewing and considering such evaluation, will then, in its sole discretion, determine licensure status based on the ?ndings and recommendations of the evaluation report. Additionally, ReSpondent is ORDERED to complete no less than 10 hours CME in a board approved ethics/boundaries course. These CME hours are in addition to the 75 triennial CME requirements. RIGHT TO JUDICIAL REVIEW Respondent may seek judicial review of the Decision and Order pursuant to NMSA 1978, 61?1?17 and The time within which to do so is thirty days from the date of ?ling of Stove enkushy, MD. 3/ Vice Chair, New Mexico Medic Board the Board?s Decision and Order. Page 2 of 2 BEFORE THE NEW MEXICO MEDICAL BOARD IN THE MATTER OF Mark Walden, M.D. License No. 2007-0765 No. 2013?009 Respondent. HEARING REPORT AND RECOMMENDATIONS COMES NOW the Hearing Of?cer in this matter and respectfully presents his Report and Recommendations to the New Mexico Medical Board (the ?Boa-1rd?) in accordance with Section 61-1-7, NMSA 1978 and Section 16.10626, NMAC. I. HEARING PROCEDURE The Notice of Contemplated Action in this matter was ?led on February 18, 2013. There was a pre-hearing conference on April 30, 2013, as provided in Section 16.10.61? of the New Mexico Administrative Code (NMAC). The case came before the Hearing Of?cer for hearing in Bernalillo County on May 2 and 3, 2013, and the hearing was continued and concluded in Bernalillo County on May 14, 2013. The Board was represented by its Administrative Prosecutor, Daniel Rubin. Respondent, Dr. Mark Walden, was present and was represented by his counsel, Nicole M. Charlebois, Esq., Chapman Charlebois, RC. 11. DISPOSITION OF PRE-HEARING MOTIONS Five procedural pre?hearing motions were ?led in this matter, and were disposed of as follows: A. Motion to Stay Proceedings: Respondent?s Motion to Stay Proceedings was ?led on April 8, 2013. The Administrative Prosecutor ?led the Prosecution Response to Motion to Stay Proceedings on April 12, 2013. The Hearing Of?cer, upon consideration of the motion and the response, determined that the Motion to Stay Proceedings should be denied, and ?led his Order Denying Motion to Stay Proceedings on April 19, 2013. B. Respondent Waldcn?s Motion to Compel Investigator?s Report and Related Documents: Respondent?s motion to compel production of the report prepared by the Board?s Senior Investigator, Debbie Dieterich, and related documentation was ?led on April 24, 2013. The Administrative Prosecutor ?led the Prosecution Response to Motion to Compel on April 26, 2013. The Hearing Of?cer heard argument on this motion at the Prehearing Conference on April 30, 2013, and ruled that the motion should be denied. The Order denying the motion was ?led on May 1, 2013. C. Respondent Walden?s Motion to Exclude and Strike Patient-Inmate Statements and Grievances from the Record: Respondent?s motion to exclude and strike statements and grievances of patient-inmates was ?led on April 25, 2013. The Hearing Of?cer heard argument on this motion at the Prehearing Conference on April 30, 2013, but declined to rule on the motion at that time, choosing to hold it in abeyance pending presentation of proposed exhibits at hearing. At the hearing, both the Administrative Prosecutor and the Respondent moved admission of certain patient-inmate statements and grievances, each without objection by the other party. The Hearing Of?cer thereupon determined that the motion was moot and denied it on that basisRespondent Walden?s Motion to Exclude and Strike Lay Medical Testimony of Debbie Dieterich from the Record: Respondent?s motion to exclude and strike anticipated medical testimony that might be presented at the hearing by Senior Investigator Debbie Dieterich was ?led on April 25, 2013. The Hearing Of?cer heard argument on this motion at the Prehearing Conference on April 30, 2013, and determined that the motion should be denied, but without prejudice to a potential objection at hearing if the witness was invited to testify, or actually testi?ed, on matters of opinion beyond the scope appropriate for a witness not recognized as a medical expert. The Order denying this motion was ?led on May 1, 2013. E. Respondent Walden?s Motion to Exclude and Strike Private Practice Patient Medical Records from the Record: Respondent?s motion to exclude and strike medical records of private practice patients was ?led on April 25, 2013. The Hearing Of?cer heard argument on this motion at the Prehearing Conference on April 30, 2013, but declined to rule on the motion at that time, choosing to hold it in abeyance pending presentation of any such records, if offered at hearing. At the hearing, no private practice medical patient records were offered into evidence. The Hearing Of?cer thereupon determined that the motion was moot and denied it on that basis. Tr. at 56-5 7. PENDING MOTION On May 24, 2013, Respondent through counsel ?led Respondent Walden?s Motion for Excusal of Board Members, seeking the excusal of all Board members who participated in the Complaint Committee, all Board members who have communicated with the administrative prosecution, and all Board members who have served on the Board with Dr. Allan Haynes or who know Dr. Haynes in a personal or professional capacity. The Administrative Prosecutor ?led the Prosecution Response to Motion for Excusal on May 30, 2013. This is a matter for determination by the Board and its members. The Hearing Of?cer has not taken any action, and will not take any action, regarding this Motion. IV. STATE OF THE RECORD A. Striking of Certain Material from the Record for Purposes of the Board?s Decision. The following sections of the hearing transcript are formally stricken from the record on order of the Hearing Of?cer, and should not be considered by the Board when rendering its decision in this matter: 0 Transcript, Volume 1, page 190, lines 11 through 20. Transcript, Volume 11, page 56, Zinc 24 through page 65, line 15. a Transcript, Volume 111, page 52, lines 4 through The material described immediately above was stricken from the record for the reasons which follow. Respondent, Dr. Walden, is known to be the subject of a criminal investigation, but has not been charged and may never be charged. At hearing, when called by the Administrative Prosecutor, Dr. Walden chose not to testify, citing his privilege under the Fifth Amendment of the US. Constitution. Transcript, I at 76, line 24 to 77, line 6. Later in the hearing, the Hearing Of?cer ruled that counsel should not comment on Dr. Walden?s invocation of his constitutional privilege and should not invite a witness or the Board, as the trier of fact, to draw any inference from it. The Administrative Prosecutor asked the Hearing Of?cer to reconsider his ruling, citing a United States Supreme Court case on the subject. The Hearing Officer asked the parties to brief the question whether in this proceeding it is permissible for a witness or the trier of fact to draw any inference from Dr. Walden?s exercise of his Constitutional privilege not to testify. Subsequently, in an e-mail exchange, the Administrative Prosecutor requested to withdraw his request ?for reconsideration of the Hearing Officer?s ruling. The Administrative Prosecutor cited Section 61-1-11, NMSA 1978, of the Uniform Licensing Act, which states in pertinent part: ?In proceedings involving the suspension or revocation of a license, rules of privilege shall be applicable to the same extent as in proceedings before the courts of this state.? The Administrative Prosecutor also appropriately cited Rule NMRA, part of the New Mexico Rules of Evidence, which states: ?The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by the court or counsel. No inference may be drawn therefrom.? The Administrative Prosecutor having withdrawn his request for reconsideration, the Hearing Officer?s original ruling stands, and the Hearing Officer relieved the parties of any need to submit briefs on the subject. On motion of counsel for the Respondent, the Hearing Officer also ruled that portions of the record containing comment or argument regarding Dr. Walden?s exercise of his privilege not to testify should be stricken, based on Rule NMRA. Those portions of the transcript cited above have therefore been formally stricken from the record and are not part of the material which the Board shOuld consider in its determination of this matter. Based on the foregoing, the Hearing Of?cer advises that the Board should not draw any inference or conclusions from the fact that Dr. Walden chose to exercise his privilege not to testify. B. Exhibits Admitted into the Record. At hearing, the exhibits listed below were admitted as part of the record in this matter, and proposed exhibits bearing other numbers and letters were withdrawn or denied. Tr. 1 at 193? 206. Subsequently, for reasons unknown, there was some confusion on the part of the court reporter and certain exhibits, in particular those offered by Respondent, were omitted from the transcript as originally submitted. Board members should ensure that the materials they review in their consideration of this matter include all of the exhibits listed, but only the exhibits listed. The following Prosecution Exhibits were admitted and are part of the record: Pros. Ex. 1, but excluding one-page letter of Dr. S. Kothalanka dated January 13, 2010, marked 000130.? Pros. Ex 2, including and Pros. Ex. 3. Pros. Ex. 6, but excluding ?Visit/Appointment Logs? marked 000200? and 000201.? Pros. Ex. 7, consisting of 7(a) through inclusive. Pros. Ex. 8, consisting of 8(a) through inclusive. Pros. Ex. 9. Pros. Ex. 10. Pros. Ex. 11, consisting of11(o) through 11(d), inclusive, but excluding: 11 p. of 2, marked 000384,? 11 p. 9 of 17, marked 000183marked respectively 000193? and 000195.? Pros. Ex. 12. The following Respondent Exhibits were admitted and are part of the record: Resp. Ex. C-1, C-2, C-3, C-4, C-9, C41, C-14, and C-15. Resp. Ex. H. - Resp. Ex. I. Resp. Ex. J. Resp. Ex. K. Resp. Ex. L. Resp. Ex. Resp. Ex. N. Resp. Ex. T. Resp. Ex. U. Exhibits have been redacted where appropriate to provide only the initials of the patients in patient medical records, patient statements and grievances, and other exhibits referring to patient medical records or patient statements and grievances. V. RECOMMENDED FINDINGS OF FACT The Hearing Of?cer respectfully submits the following recommended Findings of Fact for the consideration of the Board. An attempt has been made to group these proposed Findings of Fact into logical categories for more easy reference. A. General Factual Findings: 1. Respondent, Dr. Mark Walden, was engaged in the practice of medicine at the Guadalupe County Correctional Facility from July 10, 2010 to February 2012. Tr. II at? 70 Wurse K. Armijo). 2. Respondent was engaged in the practice of medicine at the Northeast New Mexico Detention Facility from February 2012 until July 21, 2012. Tr. I at 66-67 Wurse A. Martinez); Tr. at 6?7 (Nurse L. answer). 3. Respondent was not practicing medicine at Northeast New Mexico Detention Facility after July 23, 2012. r. 1(11?176 (D. Dieterich). 4. Nurse Leeanna Turner, R.N., has been employed at the Northeast New Mexico Detention Facility for almost ?ve years. Tr. 111m? 6 (Nurse L. Turner). 5. Nurse Practitioner Michelle Paquin has worked at the Northeast New Mexico Detention Facility beginning in mid August of 2008. Tr. I at 4 6 (Nurse Practitioner M. Paquin). 6. Nurse Practitioner Paquin observed that on at least one day when she was working in the medical unit with Respondent, he seemed to use a privacy screen with virtually every patient. Tr. [(1151 (Nurse Practitioner Paquin). 7. In Nurse Practitioner Paquin?s experience, doctors who worked at the Northeast New Mexico Detention Facility before and after Respondent seldom used the privacy screen, and usually only for genital exams. Tr. I at 51?52 Wurse Practitioner M. Paquin). 8. The Northeast New Mexico Detention Facility does not have a formal chaperon policy for medical examinations, but generally speaking there is a third person in the room for rectal or genital examinations. Tr. at 15-16 (Nurse L. Turner). 9. Inmates at the Northeast New Mexico Detention Facility, if they are over the age of 50, are regularly offered a digital rectal examination every two years when they get their annual physical. Tr. at 23 (Nurse L. Turner). 10. Patients under the age of 50 also may receive prostate examinations if they have speci?c complaints that would indicate such an examination. Tr. [110123 Wurse L. Turner). 11. In her capacity as a nurse practitioner at the Northeast New Mexico Detention Facility, Nurse Practitioner Paquin performs one to two prostate examinations a month, generally on patients over the age of 50. Tr. I at 45-46, 47; Tr. 101?60 Wurse Practitioner Paqafn). 12. Respondent regularly performed digital rectal examinations on inmate patients in their 20s and 303. Tr. at 18?19 (Nurse L. writer). 13. Respondent performed about twice as many digital rectal examinations per month as other doctors who worked at the Northeast New Mexico Detention Facility. Tr. at 17-18 (Nurse L. Turner). 14. Katherine Armijo, a licensed practical nurse, is employed as Health Services Administrator at the Guadalupe County Correctional Facility and worked with Respondent during the time Respondent was employed there. Tr. at 69- 70 (Nurse K. Armijo). 15. Respondent worked two days a week at the Guadalupe County Correctional Facility when he was employed there. Tr. at 72-73 Wurse K. Armijo). 16. The Guadalupe County Correctional Facility has mini blinds rather than screens to provide privacy in its medical examination rooms. Tr. at 71 (Nurse K. Armifo). 17. During his tenure at Guadalupe County Correctional Facility, it did not appear to Nurse Armijo that Respondent was overusing the privacy blinds, and there were no complaints that he was doing so. Tr. at 7] (Nurse K. Armg'jo). 18. On July 21, 2012, Corrections Of?cer Pauline Gish was on duty in the medical unit at the Northeast New Mexico Detention Facility. Tr. I at 1 7 (P. Gish); Pros. Ex. 6. 19. Corrections Officer Gish had worked in the medical unit two to four times previously, but July 21, 2012 was the ?rst time she had worked there with Respondent. Tr. I at 29?30 (P. Gish). 20. The medical unit has three examination rooms, each of which has a window on the door and also a window into the room. Tr. 10113 (P. Gish). 21. Inmates who come to the medical unit wait in a sitting room or holding area until the nurse or doctor calls them to one of the examination rooms. Tr. [(1:13 (P. Gish). 22. Correctional of?cers maintain an Inmate Medical Area Sign-In Log recording the time when each inmate arrives at the medical unit, the inmate?s name, the reason for the inmate?s visit, and the time when the inmate leaves the medical unit. Tr. I at 14?15 (P. Gish); Tr. I at 28 (P. Gish); Pros. Ex. 6. 23. Because of waiting times before inmates are seen, the time that an inmate arrives at the medical unit and the time he is patted down and leaves do not re?ect how long the inmate was actually with the doctor. Tr. I at 29 (P. Gish). B. Findings of Fact Relating to Patient R.J.: 24. On July 21, 2012, patient R.J., then about 40 years of age, arrived at the medical unit of Northeast New Mexico Detention Facility at 8:45 and left the medical unit at 9:28. Tr. I 0115 (P. Gish); Pros. Ex. 6; Pros. Ex. 25. On leaving the medical unit on July 21, 2012, patient R.J. asked Corrections Of?cer Gish whether ReSpondent was gay, and expressed discomfort with the examination he had received by Respondent. Tr. I at 24-25 (P. Gish). 26. In describing his discomfort at the examination by Respondent, patient R.J. communicated to Corrections Officer Gish that there was some sort of abnormal activity and used the term ?stroking.? r. 1(1125 (P. Gish); Tr. I at 37 (P. Gish). 27. Corrections Of?cer Gish prepared a witness statement relating to the medical treatment provided by Respondent as reported by patient R.J. on July 21, 2012. Tr. I at 33-34 (P. Gish); r. 1 at 35 (P. Gish); Resp. Ex. T. 28. Patient R.J. submitted a statement dated July 21, 2012, in which he complained that Respondent ?rst performed a long digital rectal examination (DRE), then turned him over to 10 check for discharge, holding the patient?s penis and testicles in his hands, and started stroking him. Tr. I at 107; Pros. Ex. 29. On a later visit to the medical unit, patient R.J. described to Nurse Alice Martinez the DRE performed by Respondent on July 21, 2012, saying it felt different from DREs he had previously experienced, and described the experience with the terms ?fagging off? and milking the prostate(Nurse A. Martinez). 30. Nurse Martinez had observed use of the term ?milking the prostate? in charting but never heard any use of the term by Respondent. Tr. I at 73 Wurse A. Martinez). 31. In Corrections Of?cer Gish?s experience, patient R.J. is usually happy but quiet, and he has not given any particular dif?culties as an inmate. Tr. I at 26, 27 (P. Gish). 32. In Nurse Martinez?s experience, patient R.J. has not been a dif?cult inmate and has always been very respectful. Tr. I at 71-72 Warse A. Martinez). 33. Nurse Martinez had no particular reason to believe or disbelieve patient oral statement regarding his medical examination by Respondent, and had a duty to report his statement regardless whether she believed it was accurate. Tr. I at 75 Wurse A. Martinez). C. Findings of Fact Relating to Patient K.R.: 34. On July 21, 2012, patient K.R., 57 years of age, arrived at the Northeast New Mexico Detention Facility medical unit at 15:46 and left the medical unit at 16:04. Tr. I at 16 (P. Gish); Pros. Ex. 6; Pros. Ex. 35. On August 5, 2012, patient K.R. reported that during an examination about June 2, 2012, at which he and Respondent discussed lab results and treatment of the patient?s hypertension and diabetes, he told Respondent that since he had his prostate removed in 2010 he 11 could not achieve an erection. Tr. I at 112-13 (Dr. A. Haynes); Pros. Ex. Pros. Ex. 12 at 36. In his August 5, 2012 statement patient K.R. stated that after he told Respondent about his inability to achieve an erection, Respondent had him get off the examination table and stand, then Respondent, without gloves, starting ?playing with? his testicles and penis, with Respondent?s face only a few inches from them, at which point the patient jerked away from Respondent. Tr. [(11113 (Dr. A. Haynes); Pros. Ex. 37. Dr. Haynes did not recall any medical records for patient K.R. that he could identify as re?ecting Respondent?s examination of the patient. Tr. I at 122-23 (Dr. A. Haynes). D. Findings of Fact Relating to Patient C.V.: 38. On July 21, 2012, inmate C.V., 35 years of age, arrived at the Northeast New Mexico Detention Facility medical unit at 15:46 and left the medical unit at 16:10. Tr. I at 16 (P. Gish); Pros. Ex. 6; Pros. Ex. 801). 39. On or about September 3, 2012, patient C.V. submitted a statement complaining that during an examination by Respondent about June 2012, after the usual examination Respondent asked him to drop his pants, and without gloves started massaging the patient?s genitals and rubbing his penis, asking the patient whether that felt good. Tr. I a! 112 (Dr. A. . Haynes); Pros. Ex. Pros. Ex. 12 at 40. On August 20, 2012, patient C.V. ?led an inmate grievance relating to Respondent on which C.V. stated that the ?date of incident? was August 20, 2012. Tr. I at 38 (Dr. A. Haynes); Resp. Ex. at NM 00023. 12 41. Based on handwriting characteristics, it appears that the notation 8/20/ 12 as ?Date of Incident? was recorded by a person other than the person who wrote and signed the narrative description on patient Inmate Grievance form(Dr. A. Haynes); Resp. Ex. at NMMB 00023. 42. There are no medical records showing that Respondent was providing treatment to patient C.V. on August 20, 2012. Tr. Iar143 (Dr. A. Haynes). E. Findings of Fact Relating to Patient M.S.: 43. On July 21, 2012, patient M.S., then about 31 years of age, arrived at the Northeast New Mexico Detention Facility medical unit at 15:52 and left the medical unit at 16:12. Tr. Gish); Pros. Ex. 6; Pros. Ex. 44. Patient M.S. had previously been examined by Respondent for supposed prostate problems, including prostate exams on March 9, 2012, and July 20, 2012. Tr. I at 105-06 (Dr. A. Haynes); Pros. Ex. Pros. Ex. 12 at 45. On July 25, 2012, patient M.S. submitted a letter to Warden Hatch of the Northeast New Mexico Detention Facility complaining that Respondent performed repeated prostate examinations each time he saw him, that on July 20 [sic], 2012, Respondent then performed a process he called ?milking,? touched his testicles and masturbated him, stating that Respondent needed to see what color his sperm was, with Respondent?s face close to privates. Tr. 103?105-06 (Dr. A. Haynes); Pros. Ex. F. Findings of Fact Relating to Patient RR: 46. On July 21, 2012, patient R.R., then about 33 years of age, arrived at the medical unit of Northeast New Mexico Detention Facility for a chronic care appointment related to 13 treatment of Hepatitis at 15:56 and left the medical unit at 17:50(P. Gish); Tr. at I9 Wurse L. Turner); Pros. Ex. 6; Pros. Ex. 47. On July 21, 2012, Respondent was in an examination room with patient R.R. for what appeared to be a longer time than normal, approximately 30 to 45 minutes. Tr. I at 18 (P. Gish); Tr. at 8?9 and 20 Wurse L. Turner). 48. A typical visit in the examination room is from 10 minutes to 15 minutes and no more than 20 minutes. Tr. I at 21, 22 (P. Gish); Tr. at 9 Nurse L. Turner). 49. The visit during which R.R. and Respondent were in the examination room was probably two to three times as long as a normal visit, and longer than Nurse Turner could remember any patient ever being in an examination room with a doctor. Tr. I at 22 (P. Gish); Tr. at 20 Wurse L. Turner). 50. Corrections Of?cer Gish observed that R.R. and Respondent were behind a white folded privacy screen in the examination room. Tr. I a! 18 (P. Gish). 51. Corrections Of?ce Gish does not know what Respondent was talking about with patient R.R. or the medical issues they were discussing while they were in the examination room. Tr. I at 32 (P. Gish). 52. When Corrections Of?cer Gish made a clicking sound with her pen she heard a low voice saying ?They?re she?s out there. She?s going to hear you.? Tr. I at I9 (P. Gish). 53. Corrections Of?cer Gish remained in the vicinity of the room where Respondent was with patient R.R. for a few minutes and then observed Respondent back out from behind the screen and resume speaking in a normal voice. Tr. I at 19 (P. Gish). 14 54. When patient RR. came out of the examination room he appeared to be frustrated and Corrections Of?cer Gish asked him what was wrong, but he ?kind of grumbled? and then left the medical unit after being patted down by the corrections of?cer. Tr. I at 19 (P. Gish). 55. Immediately alter leaving the examination room, Respondent appeared visibly shaken, upset, and was sweating. Tr. at 7 (Nurse L. Turner). 56. Respondent reported to Nurse Turner that he had performed a prostate massage on patient R.R., who ejaculated and-was extremely embarrassed. Tr. at 8 (Nurse L. urner). 57. Nurse Turner advised Respondent that he should prepare a written statement reporting the incident, which Respondent did. Tr. at 9 (Nurse L. Turner); Pros. Ex. 58. At 18:20 (6:20 pm.) on July 21, 2012, Respondent prepared an Addendum Note regarding his examination of patient RR. on that date. Tr. I at 99?100 (Dr. A. Haynes); Pros. Ex. 59. In the Addendum Note regarding his examination of patient R.R., Respondent reported that he performed a prostate exam, prostate massage for about 1 minute, and then urethral milking for about 10 to 15 seconds. Tr. I at 99-100 (Dr. A. Haynes); Pros. Ex. 8(00. 60. In the Addendum Note, Respondent reported that during the urethral milking process in the examination of patient R.R., the patient ejaculated and became upset. Tr. I at 100 (Dr. A. Haynes); Pros. Ex. 61. Patient R.R. submitted a subsequent statement complaining that on July 21, 2012 Respondent had performed a long DRE on him, for at least a minute, then asked him to roll over on his back, rubbed under his testicles and then started to stroke his penis, saying he needed to examine his semen. Tr. Iat107-08 (Dr. A. Haynes); Pros. Ex. 15 62. Corrections Officer Gish is familiar with patient R.R. because he and other inmates were located in a housing unit where she worked at Northeast New Mexico Detention Facility. Tr. I at 25 (P. Gish). 63. Corrections Officer Gish prepared a witness statement relating to the medical treatment provided by Respondent as reported by patient RR. 011 July 21, 2012. Tr. I at 3-4, 35? 36 (P. Gish); Resp. Ex. U. 64. In Corrections Officer Gish?s experience, patient R.R. is very quiet, reserved, and sticks to himself, and she has never experienced him to be a troublemaker. Tr. I at 26, 27 (P. Gish). 65. Patient R.R. told Nurse Practitioner Paquin that he felt he had been ?talked into? having an unnecessary prostate exam by Respondent, alleged that he had been assaulted, and stated that he did not trust Respondent and therefore would not follow his medical advice. Tr. I at 55, 5 7-58 (Nurse Practitioner Pros. Ex. 8(d) of 2. 66. During his interview with Nurse Practitioner Paquin on July 24, 2012, patient R.R. appeared somewhat withdrawn and subdued, and ?not his usual self.? Tr. I at 56 Wurse Practitioner Paqufn). 67. Nurse Practitioner Paquin was uncertain whether a prostate exam for patient R.R. was warranted on July 21, 2012, because his complaint of peeing a lot likely re?ected that he drank a lot, and he had no other related Tr. I at 58?59 (Nurse Practitioner M. Paquin). 68. The medical records for patient R.R. do not record any history of trauma to the prostate or pain in the genital area. Tr. at 32, 33-34 (Dr. G. Vilke). l6 G. Findings of Fact Relating to Patient S.D.: 69. Patient SD, 42 years of age, was examined by Respondent at Northeast New Mexico Detention Facility in March and April 2012. Tr. I at 106-07 (Dr. A. Haynes); Pros. Ex. Pros. Ex. Pros. Ex. 12 at 70. On July 24, 2012, patient S.D. prepared a written complaint stating that during an examination in March 2012, Respondent performed a DRE, massaged his prostate for about 45 seconds, then fondled his penis, stroked it, and caused him to ejaculate. Tr. I at 106-07 (Dr. A. Haynes); Pros. Ex. 71. On August 15, 2012, patient S.D. ?led a grievance regarding Respondent?s conduct, in which the date of incident is reported as August 2, 2012, although the narrative description refers to an incident in March 2012. Tr. I at 131?32 (Dr. A. Haynes); Resp. Ex. C-2. 72. There are no medical records showing that Respondent was providing treatment to patient SD. 011 August 2, 2012. r. I at I 42 (Dr. A. Haynes). 73. Patient S.D. sought monetary damages for alleged inappropriate prostate checking, genital touching and other inappropriate behavior by Respondent. Tr. I at 134 (Dr. A. Haynes); Resp. Ex. H. Findings of Fact Relating to Patient M.A.: 74. On August 12, 2011, August 27, 2011, and September 17, 2011, Respondent saw patient M.A., who was then 30 years of age, at the Guadalupe County Correctional Facility medical department. Pros. Ex. 75. On September 29, 2011, patient M.A. ?led a complaint stating that each of three times he was examined by Respondent, Respondent performed a prostate exam, then grabbed or 17 stroked his penis saying that he needed to check ?uid of some sort. Tr. 1 at 108-09 (Dr. A. Haynes); Pros. Ex. Pros. Ex. 12 at 76. On September 30, 2011, Respondent submitted a memorandum to Warden Bravo of the Guadalupe County Correctional Facility stating, in pertinent part, that ?[a]ll visits [with patient were related to his current complaint of prostatitis, . . . The examination and treatment given to patients is within the community standards of treatment and all proper guidelines were followed. At no time was there any unnecessary treatment rendered or offered to Mr. Tr. I at 109 (Dr. A. Haynes); Pros. Ex. 77. The memorandum submitted by Respondent on September 30, 2011, did not directly deny the speci?c allegations made by patient MA. in his complaint dated the previous day. Tr. Iat109?10 (Dr. A. Haynes); Pros. Ex. 78. Patient M.A. decided not to pursue his complaint after the procedure and the reasons for the examinations were explained to him by Nurse Armijo. Tr. I at 17] (D. Dieterfch); Tr. at 71?72 (Nurse K. 79. Nurse Armijo was not aware of patient description of Respondent?s alleged actions as contained in the ?Summary of Incident/Complaint? in the report of the September 29, 2011 incident prepared by the New Mexico Corrections Department. Tr. at 77? 78, 81?82 (Nurse K. Armijo); Pros. Ex. 1. Findings of Fact Relating to Patient A.S.: 80. On August 15, 2012, patient AS, 28 years of age, ?led a complaint, including a statement dated July 6, 2012, in which A.S. stated that he was called for a medical examination by Respondent on Friday or Saturday for three weeks straight, and Respondent performed a DRE 18 on each occasion, inserting one or more ?ngers into rectum and moving them in and out for up to about three minutes. Tr. I at 110?]! (Dr. A. Haynes); Pros. Ex. 709; Pros. Ex. 809; Pros. Ex. 12 at 81. Patient A.S. also complained that Respondent, without wearing gloves, would look at his penis and ?mess around with it for a long period of times, like if he was jacking me off.? Tr. I at 110-11 (Dr. A. Haynes); Pros. Ex. 709 at NMMB 0005 71; Pros. Ex. 12 at 82. Patient A.S. complained that Respondent denied him medication for pain in his back. Tr. I at 135 (Dr. A. Haynes); Resp. Ex. C-8 of NMMB 00084. J. Findings of Fact Relating to Patient B.M.: 83. On August 6, 2012, patient B.M., 39 years of age, submitted a statement saying that on or about May 6, 2012, he saw Respondent because of congestion and that during the examination Respondent, without wearing gloves, put both hands on his testicles and told him to cough, after which Respondent rinsed his hands and wiped them on his pants. Tr. I at 111-12 (Dr. A. Haynes); Pros. Ex. Pros. Ex. Pros. Ex. 12 a! 84. Patient B.M. did not complain about any prostate exam performed in May 2012, if there was one. Pros. Ex. K. Findings of Fact Relating to Patient D.S.: 85. On June 1, 2012, patient D.S., about 27 years of age, was examined by Respondent for foot pain and also told Respondent that he had a pain in his side. Tr. I at 113 (Dr. A. Haynes); Pros. Ex. 80); Pros. Ex. 12 at 86. Later, on August 27, 2012, patient D.S. submitted a statement saying that during his examination by Respondent, Respondent said he ?had pretty feet? and started to ?caress,? 19 them, then told the patient to pull down his pants and started to fondle the patient?s genitals and stroke his penis, continuing even when the patient pushed back and told him to stop. Tr. I at 113 (Dr. A. Haynes); Pros. Ex. L. Findings of Fact Relating to Patient F.M.: 87. On August 27, 2012, patient F.M. submitted a statement saying that during his yearly physical examination on June 6, 2012, Respondent insisted on performing a prostate examination because the patient was over 50 years old, over the patient?s objections, took about a minute to perform the examination, and was grinning and seemed to be enjoying himself. Tr. I at 114 (Dr. A. Haynes); Pros. Ex. Pros. Ex. 12 at 88. In his August 27, 2012 statement, patient F.M. also reported that after his prostate examination on June 6, 2012, Respondent cleaned his anus for him, then Respondent told .M. to roll over, took off his gloves, then fondled the patient?s testicles for about a minute while holding the patient?s penis in his bare hands. Tr. I at 1 14 (Dr. A. Haynes); Pros. Ex. 89. On August 14, 2012, patient F.M. ?led a grievance regarding Respondent?s conduct, in which the date of incident is reported as August 7, 2012, but relating to a prior incident. Tr. Iar135-36 (Dr. A. Haynes); Resp. Ex. 09 at NMMB 00035, NMMB 0003 7. 90. It is uncertain whether the date of August 7, 2012 was recorded on the form by patient F.M. or by another person. Tr. I at 152?53 (Dr. A. Haynes); Resp. Ex. G9 at NMMB 0003 7. 91. Patient F.M. in his grievance sought $1,000,000 compensation for his alleged injuries as a consequence of alleged improper conduct of Respondent. Tr. I at 137 (Dr. A. Haynes); Resp. Ex. G9 at NMMB 00035, NMMB 0003 7. 20 92. There are no medical records showing that Respondent was providing treatment to patient FM. on August 7, 2012. Tr. 1511143 (Dr. A. Haynes). M. Findings of Fact Relating to Patient T.G.: 93. Patient T.G., while at Northeast New Mexico Detention Facility on September 12, 2012, submitted an undated statement describing events involving Respondent at that facility and, earlier, at the Guadalupe County Correctional Facility. Pros. Ex. 94. Patient T.G. reported that in early 2010 when he was about 31 years of age, at the Guadalupe County Correctional Facility, Respondent saw him for follow-up treatment of a broken wrist and would then call him in at least twice a month and would each time touch the patient?s penis and testicles in a way that appeared to T.G. to be sexual. Tr. I at 114 (Dr. A. Haynes); Pros. Ex. Pros. Ex. Pros. Ex. 12 at 95. Patient T.G. reported that later when he was moved to Northeast New Mexico Detention Facility he continued to be examined and treated by Respondent, who gave him repeated prostate examinations and continued to touch him in ways that seemed sexual to the patient. Tr. I at 114 (Dr. A. Haynes); Pros. Ex. 96. Patient T.G. was seen by Respondent at the Northeast New Mexico Detention Facility on June 30 and July 13, 2012. Tr. I at 189 (D. Dieterich); Pros. Ex. 6 at Pros. Ex. I N. Findings of Fact Relating to Patient J.Cam.: 97. On September 20, 2012, patient J.Cam., 38 years of age, submitted a complaint against Respondent in which he states that following a prostate examination, Respondent removed his gloves, told the patient to lie on his back, and with a bare hand stroked the patient?s 21 penis up and down while stroking the patient?s testicles with the other hand. Tr. I at 114-15 (Dr. A. Haynes); Pros. Ex. 76m); Pros. Ex. Pros. Ex. 12 at 98. Patient .Cam. reported that he asked Respondent what he was doing, and Respondent said he was trying to get some ?uid out. Tr. I at 115 (Dr. A. Haynes); Pros. Ex. 99. Dr. Haynes was provided medical records for patient .Cam., including a record made by Respondent re?ecting Respondent?s examination of the patient on May 26, 2012, and mentionng prostatitis. Tr. I at 122-23, 147-48 (Dr. A. Haynes); Pros. Ex. 8(m) at NMMB 0001533. 0. Findings of Fact Relating to Patient J.Cor.: 100. On September 25, 2012, patient .Cor., about 32 years of age, submitted a statement saying that in an examination 2 or 3 months previously Respondent had performed a DRE, then turned him over and touched his penis without gloves for a couple of minutes. Tr. I at 115 (Dr. A. Haynes); Pros. Ex. Pros. Ex. 12 at 101. In his September 25, 2012 statement, patient .Cor. stated that he did not go back to see Respondent after the incident in which Respondent allegedly performed a DRE and touched the patient?s penis, even though Respondent kept sending him passes to go. Pros. Ex. 102. Dr. Haynes was not provided any medical records for patient .Cor. that he could identify as re?ecting Respondent?s examination of the patient. Tr. Iat122-23 (Dr. A. Haynes). 22 P. General Findings of Fact Relating to Inmate Patients: 103. The medical records in Prosecution Exhibit 8 were provided to the Board by the detention facilities where they were generated in response to a subpoena by the Board. Tr. I at 168-69 (D. Dieterich). 104. The patient statements and grievance reports in Prosecution Exhibit 7 were provided to the Board by the detention facilities where they were generated in response to a subpoena by the Board. Tr. I at 168 (D. Dieterich). 105. Of the 10 patients for which there is a record or statement that Respondent administered one or more digital rectal examinations, one patient, F.M. was over the age of 50 at the time, and the other nine, R.J., M.S., R.R., S.D., M.A., A.S., T.G., J.Cam., and .Cor., were 27 to 42 years of age. Pros. Ex. 7; Pros. Ex. 8. 106. In several of the inmate patient medical records provided to the Board, Respondent made a ?nding or diagnosis of prostatitis. Tr. I at 11 7 (Dr. A. Haynes); Pros. Ex. 8. 107. In a review of the medical records provided, there was not found an independent confirmation of any diagnosis of prostatitis by any other healthcare practitioner in any of the records. Tr. I at 7, 140 (Dr. A. Haynes). 108. Referral out of patients in the correctional setting is not encouraged because of the time, expense and safety issues related to transporting prisoners off site. Tr. II at 15-16 (Dr. G. foke). 109. With the exception of patient R.R., there was nothing found in the medical records to either contradict or con?rm the patients? statements and grievances or the police 23 reports regarding what happened during their examinations by Respondent. Tr. I at 117-18 (Dr. A. Haynes). 110. Several of the medical records provided to the Board indicated blood work monitoring for such things as diabetes?glucose levels, and there were lab tests included in some of the records. Tr. I at 139 (Dr. A. Haynes). 111. In the medical records provided, there was not found any indication that a semen specimen or specimen of prostatic ?uid was reported as analyzed by a laboratory for any of the patients. Tr. I at 119?20, 139?40 (Dr. A. Haynes). 112. There is nothing in the record to indicate what crimes the inmate patients had committed, whether they included crimes of moral turpitude or dishonesty, whether any of them had antisocial personality disorder or borderline personality disorder, or whether any of them were bipolar, schizophrenic or sociopaths. Tr. I at 124-25 (Dr. A. Haynes). 113. Other than patient question whether Respondent was ?gay? and the same p'atient?s statement to Nurse Martinez about Respondent ?fagging? him off, there was nothing in the medical records to indicate a patient concern specifically about Respondent?s presumed sexual orientation. Tr. I at I (Dr. A. Haynes). 114. Other than the single complaint ?led by patient M.A., Nurse Armijo did not receive any complaints about Respondent as a physician from any inmate at Guadalupe County Correctional Facility during his tenure there. Tr. II at 73 (Nurse K. Armijo). 24 Q. Findings of Fact Relating to Reliability of Inmate Patient Statements: 115. Inmates may be manipulative and will commonly do things for purposes of secondary gain. Tr. I at 74 (Nurse A. Martinez); Tr. I at 138-39 (Dr. A. Haynes); Tr. II at 18-19 (Dr. G. Vilke); Tr. at 73-74 Wurse K. Armijo). 116. Secondary gain could include things like potentially getting narcotic pain medication as well as seeking special shoes, mattresses or other accessories, and many other things. Tr. at 138-39 (Dr. A. Haynes); Tr. at 18-19 (Dr. G. Vilke). 117. At least two of the inmates complaining about Respondent, SD. and F.M., expressly demanded monetary compensation for their alleged injuries as a consequence of Respondent?s improper actions. Tr, I at 134, 13 7 (Dr. A. Haynes); Resp. Ex. Resp. Ex. G9 at NMMB 00035, NMMB 0003 7. 118. At least one inmate complaining about Respondent, A.S., requested that Respondent prescribe pain medication for him, and was refused. Tr. I at 135 (Dr. A. Haynes); Resp. Ex. at NMMB 00084. 119. Six of the inmate patients who alleged improper actions by Respondent were in the medical unit at Northeast New Mexico Detention Facility at one time or another on July 21, 2012. Tr. I at 172 (D. Dieterich); Pros. Ex. 6; Resp. Ex. 120. Four of the inmate patients who alleged improper actions by Respondent, speci?cally K.R., C.V., MS, and R.R., were in the Northeast New Mexico Detention Facility medical unit at the same time, between 15:56 and 16:04, on July 21, 2012. Tr. I at 14?1 7 (P. Gish); Tr. Iat172 (D. Dieterich); Pros. Ex. 6; Resp. Ex. M. 25 121. One of the complaints registered by inmate patients against Respondent, that of patient R.J., was initiated on July 21, 2012, and related to events occurring on that date. Tr. I at 25, 33-34, 3 7 (P. Gish); Pros. Ex. 122. The incident relating to inmate patient RR. occurred on July 21, 2012, and was reported by Respondent on that date, but the patient?s statement was submitted on August 1, 2012. Tr. I at 18?19 (P. Gish); Tr. at 7?9 Wm'se L. Tamer); Pros. Ex. 76:1). 123. The complaint of patient MA. was ?led in 2011 and in a different facility, the Guadalupe County Correctional Facility, from the complaints later filed in the Northeast New 124. The complaints and grievances of patients K.R., C.V., M.S., R.R., S.D., A.S., B.M., D.S., F.M., T.G., .Cam., and .Cor. were ?led between July 24, 2012 and September 25, 2012, though relating to events on or before July 21, 2012 and in at least one case (A.S.) containing a statement bearing an unverified earlier date. Pros. Ex. 7. 125. It is not known whether any of the inmate patients discussed their allegations or their statements with each other before submitting their grievances or statements. Tr. I at I 72 126. In August 2012, patient S.D. at Northeast New Mexico Detention Facility was aware that there had been previous complaints against Respondent at Guadalupe County Correctional Facility in Santa Rosa. Tr. I at 133?34 (Dr. A. Haynes); Resp. Ex. at NMMB 00064. 26 127. The Board?s Investigator did not undertake an investigation to determine how S.D. would have had information regarding claims of wrongdoing by Respondent that took place at Guadalupe County Correctional Facility. Tr. I at 175 (D. Dieterich). 128. Patient B.R. in the Transcript] stated that he was instructed to ?le an informal complaint on September 9, 2012, before ?ling a grievance. Tr. I at 134-35 (Dr. A. Haynes); Resp. Ex. C-5 at NMMB 00011. 129. Patient C.V. stated that he was instructed by Lieutenant M. Jones to submit a statement regarding his complaints of abuse by Respondent. r. I at 138 (Dr. A. Haynes); Resp. Ex. C-1 1. 130. Patient RM. received a letter from his brother in which his brother inquired whether EM. had been touched by Respondent. Tr. I at 136?37 (Dr. A. Haynes); Resp. Ex. C-9 at NMMB 0003 7. 131. The Board?s Investigator did not undertake an investigation to determine how brother would have had information regarding the allegations against Respondent. Tr. I at 175 (D. Dieterich). R. Findings of Fact Relating to Corrective Action by a Health Care Entity and Termination of Privileges: 132. On February 12, 2010, Union County General Hospital set a hearing on Respondent?s appeal of a January 19, 2010 decision by the Union County General Hospital Board of Directors not to renew Respondent?s privileges. Tr. I at 159-60. 185 (D. Dieterich); Pros. Ex. I at 0001334; Resp. Ex. N. 27 133. The decision by the Union County General Hospital Board of Directors not to renew Respondent?s privileges was based on failure to complete of?ce charting. Tr. 1 at 159?60 (D. Dieterich); Pros. Ex. 1 at 0001334. 134. Letters dated November 19, 2009 and December 17, 2009, establish that at those times the hospital administration was concerned about Respondent?s untimely completion of medical records and his future privileges would be suspended if the problem was not corrected. Pros. Ex. 1 at 0001328, 0001329. 135. On March 17, 2010, Respondent?s privileges at Union County General Hospital were reinstated, without any indication whether the reinstatement was retroactive to the date they had been terminated. Tr. 1 at 178 (D. Dieterfch); Resp. Ex. of NMMB 000133 7. 136. On March 17, 2010, Respondent was informed that his employment by Union County General Hospital would be terminated effective June 16, 2010, and that Respondent would receive back pay from January 19, 2010. Tr. 1 at 178 (D. Dieterich); Resp. Ex. at NMMB 0001336. 137. The Board?s Investigator did not seek information regarding the procedures of the Union County General Hospital for initiating a formal or informal corrective action plan. Tr. 1 at 184 (D. Dieterich). 138. In his July 6, 2011 medical license renewal application, Respondent answered ?No? to Question No. 9, which asks: ?Since your last renewal, have you been named in any formal requests for corrective action ?led by any healthcare entity where you have had an appointment?? Tr. 1a! 167-68 (D. Dieterich); Pros. Ex. 3. 28 139. Medical licenses in New Mexico must be renewed once every three years. Tr. I at 188 (D. Dieterfch). 140. Respondent?s answer to Question N0. 9 on his July 6, 2011 medical license renewal application was false. Tr. I at I 68 (D. Dieterich). S. Findings of Fact Relating to Medical Liability Insurance: 141. On January 28, 2010, Union County General Hospital prepared a letter to Respondent advising him that his liability insurance as a provider would expire the following day and that he needed to pay the premium in order to keep it. Tr. I at 160?61, I 79-80 (D. Dieterich); Pros. Ex. Resp. Ex. I. 142. The January 28, 2010 letter used the term ?expire? and did not state that the liability insurance policy would be ?terminated? or ?cancelled.? Tr. I at 182-83 (D. Dieterich); Pros. Ex. Resp. Ex. I. 143. The Board?s Investigator did not know whether the January 28, 2010 letter was actually received by Respondent. Tr. I at I 79-80 (D. Dieterich); Pros. Ex. Resp. Ex. I. 144. The January 28, 2010 letter from Union County General Hospital to Respondent contains a line for Respondent to sign acknowledging receipt of the letter, but that line is blank. Tr. I at 160, I 79-80 (D. Dieterich); Pros. Ex. Resp. Ex. I. 145. On March 5, 2010, PULIC Insurance Services sent a letter notifying Union County General Hospital that Respondent?s liability insurance policy had been cancelled effective February 19, 2010. Tr. I at 16] (D. Dieterfch); Pros. Ex. 146. There is no documentation in the record, and the Board?s Investigator did not ?nd any letter directed to Respondent, showing the Respondent had speci?c notice that his medical 29 malpractice insurance policy would expire or be terminated or cancelled. Tr. I at 182-84 (D. Dieterich). 147. A Policy History of PULIC Insurance Services re?ects that Respondent?s medical malpractice insurance policy was cancelled on February 19, 2010, then was reinstated on April 26, 2010. Tr. I at [62-65 (D. Dieterich); Pros. Ex. Pros. Ex. 148. Based on the PULIC Policy History and the binder policy issued on April 26, 2010, Respondent?s medical malpractice insurance was not in effect between February 19, 2010 and April 26, 2010. Tr. I at 164, 165-66 (D. Dieterich); Pros. Ex. Pros. Ex. 149. It appears that PULIC Insurance Services was continuously offering professional medical liability coverage during the period from February 19, 2010 and April 26, 2010, but the Board?s Investigator did not speci?cally verify that. Tr. I at 166, 182 (D. Dieterich). 150. On August 25, 2010, Union County General Hospital sent a letter to Respondent asking him to provide proof of medical malpractice insurance coverage. Tr. I at 161?62 (D. Dieterich); Pros. Ex. 151. In his July 6, 2011 medical license renewal application, Respondent answered ?No? to Question No. 1, which asks: ?Since your last renewal, has your professional liability coverage been terminated by action of the insurance company except as a result of the company ceasing to offer insurance to physicians(D. Dieterich); Pros. Ex. 3. 152. Respondent?s answer to Question No. 1 on his July 6, 2011 medical license renewal application was false. Tr. I at 167 (D. Dieterich). 30 VI. TESTIMONY OF EXPERT WITNESSES The testimony of two expert witnesses was introduced: Dr. Allan Haynes, MD. for the prosecution and Dr. Gary Michael Vilke, MD. for the Respondent. The Hearing Of?cer finds that the following facts and opinions will assist the Board in interpreting the evidence and in determining the Board?s conclusions of law.l A. Background. Quali?cations and Basis for Opinion of Dr. Allan Haynes. M.D.: 153. Dr. Allan Haynes, M.D., was recognized as a medical expert with specialization in the ?eld of urology. Tr. I at 78?81 (Dr. A. Haynes); Pros. Ex. 9. 154. In his 33 years of practice, Dr. Haynes has performed perhaps 20,000 prostate exams. Tr. I at 89 (Dr. A. Haynes). 155. In his 33 years of practice, Dr. Haynes has performed perhaps 500 to 1,000 prostate massages. Tr. I at 89 (Dr. A. Haynes). 156. For about ?ve or five and a half years, Dr. Haynes regularly participated with other medical practitioners in a urology clinic twice a month at the Montford State Prison Hospital near Lubbock, Texas, seeing I to 25 patients on each occasion. Tr. I at 102 (Dr. A. Haynes). 157. Dr. Haynes examined patient statements or grievance reports, or both, for fourteen inmate patients treated by Respondent at Northeast New Mexico Detention Facility or Guadalupe County Correctional Facility, speci?cally patients M.A., R.R., R.J., S.D., M.S., A.S., B.M., C.V., K.R., D.S., .M., T.G., J.Can1., and .Cor. Tr. I at 82?84 (Dr. A. Haynes); Pros. Ex. 7. 1 The two physicians who provided expert witness testimony differed signi?cantly in their views on several topics pertinent to the examinations of the patients whose treatment is at issue in this case. The following observations derived from the record may be of convenience to the Board in developing its conclusions of law and determining what action it chooses to take in this matter. Of course the Board is entitled to accept in whole or in part, or to completely disregard the facts and opinions offered by any expert witness. 31 158. Dr. Haynes examined medical records provided to him for seventeen inmate patients, including M.A., R.R., R.J., S.D., M.S., A.S., B.M., C.V., K.R., D.S., F.M., T.G., J.Cam., and .Cor. Tr. I at 84, 97 (Dr. A. Haynes); Pros. Ex. 8. 159. Dr. Haynes did not know how the medical records provided to him by the Medical Board were selected or whether the medical records were complete. Tr. I ar123-24 (Dr. A. Haynes). 160. Dr. Haynes was not provided any mental health records of the patients per se, but in some of the records there may have been indications of mental problems. r. I at 123 (Dr. A. Haynes). 161. Dr. Haynes did not recall seeing any on-site or off?site consultation records for any of the patients. Tr. Iat123 (Dr. A. Haynes). 162. Dr. Haynes did not speak with any of the patients, interview them, or talk to them. Tr. I at 124-25, 130 (Dr. A. Haynes). 163. Dr. Haynes did not do anything independently to assess the credibility of the statements made by the inmate patients. Tr. I at 146 (Dr. A. Haynes). 164. Dr. Haynes examined State Police incident reports relating to complaints of inmate patients R.J., M.S., R.R., S.D., and B.R. Tr. I at 82 (Dr. A. Haynes); Pros. Ex. 11. 165. Dr. Haynes relied upon the patient statements, grievance reports and police reports, as well as the medical records, in forming his medical opinions regarding the treatment of patients by Respondent. Tr. I at 84-85, 98?99 (Dr. A. Haynes). 32 166. Dr. Haynes served on the New Mexico Medical Board (Board of Medical Examiners) (?Board?) from about 1991 or 1992 to about 1995, and again from 2004 through 2006. Tr. I at 144-45 (Dr. A. Haynes). 167. Dr. Haynes served on the Board during times when Dr. Steven Weiner and Dr. Paul Kovnat also served on the Board. Tr. I at 155 (Dr. A. Haynes). 168. Dr. Haynes did not serve on the Board at the same time as Dr. Roger Miller, Physician Assistant Albert Bourbon, Dr. Steven Komadina, Dr. Sam Kankanala, Ms. Jennifer Anderson, Mr. Ricky Wallace, or Dr. Steve Jenkusky. Tr. I at 155?56 (Dr. A. Haynes). B. Background, Quali?cations and Basis for Opinion of Dr. Gary Michael Villg, M.D.: 169. Dr. Gary Michael Vilke, MD. was recognized as a medical expert in general practice and correctional medicine. Tr. II at 10 (Dr. G. Viike); Resp. Ex. L. 1?70. Dr. Vilke is board certi?ed in the ?eld of emergency medicine but not in urology. Tr. at 7-8 (Dr. G. Vilke). 171. In his practice, Dr. Vilke has performed prostate examinations both in correctional medicine and outside of correctional medicine. Tr. at I I (Dr. G. V?ke). 172. Starting in 1995 during his residency and then from 1999 to the present, Dr. Vilke has practiced correctional medicine in the jail system in San Diego, California. Tr. at 4-5 (Dr. G. Vilke); Resp. Ex. L. 173. Dr. Vilke?s publications include a number of book chapters and some peer- reviewed papers relating to urology. Tr. at 8-9 (Dr. G. ilke); Resp. Ex. L. 174. Dr. Vilke has not published specifically on matters relating to sexual harassment or sexual misconduct. Tr. at 9 (Dr. G. Vilke). 33 175. In his work connected with this case, Dr. Vilke examined medical records, witness statements, and depositions that were provided to him to try to look at both sides of the issues. Tr. at 19?21 (Dr. G. V?ke). C. Prostate Examinations (Digital Rectal Examinations) and Prostate Massage: 176. In his 33 years of practice, Dr. Haynes has never seen a patient experience pleasure or arousal from a prostate massage85~86 (Dr. A. Haynes). 177. Dr. Haynes also asked eight colleagues, all board certi?ed urologists, and none of them had ever observed a patient ejaculate as they examined the prostate, testes or penis. Tr. 1 at 91 (Dr. A. Haynes). 178. Dr. Vilke?s opinion is that ejaculation in response to a prostate examination is an unusual response, but could happen in the absence of sexual abuse. Tr. 11 at 25-26 (Dr. G. V?ke). 179. Dr. Vilke would perform a prostate exam for a patient under the age of 50 in situations suggesting prostatitis or prostate issues, or if requested by a younger patient who is concerned about prostate cancer. Tr. II at 14 (Dr. G. Vilke). 180. Dr. Vilke has never performed a prostate massage or urethral milking in his medical practice. Tr. II at 28, 53 (Dr. G. Vflke). 181. In Dr. Vilke?s opinion, while most people ?nd massaging of the prostate to be uncomfortable or painful, it can be pleasurable for some persons. Tr. [10(30-31 (Dr. G. Vilke.) 182. Dr. Vilke has never in his experience or to the extent of his review (in medical literature seen a case where a patient ejaculated as a result of prostate stimulation. Tr. II at 29, 39 (Dr. G. Viike). 34 D. Prostate Problems among Inmates: 183. In Dr. Haynes? opinion, there is no reason to think that because someone is incarcerated he is more likely to have prostatitis. Tr. I at 103 (Dr. A. Haynes). 184. Dr. Haynes has not observed prostate problems to be more prevalent in the inmate population than in the general [male] population. Tr. I at 103 (Dr. A. Haynes). 185. In Dr. Vilke?s opinion, there are increased risks for prostatitis among prisoners because of the increased likelihood of trauma, as from male receptive anal intercourse, potentially causing in?ammation and prostatitis. Tr. II at 1344 (Dr. G. Vilke). E. Urethral Milking: 186. If it is necessary to obtain a specimen of prostatic ?uid or semen for examination, the specimen can be obtained by prostate massage for a period of ?ve to ten seconds, or alternatively by collection of urine through a methodology such as those described by Dr. Stamey and Dr. McNichols. Tr. I at 86?88 (Dr. A. Haynes). I 187. When a specimen of prostatic ?uid or semen is collected to determine whether there is an infection, it must be placed on a slide and analyzed under a microscope because bacteria, white cells, red cells and sperm cannot be detected on a gross specimen. Tr. I at 88, 94 (Dr. A. Haynes). 188. Dr. Haynes, who would not use the term ?urethral milking? but could infer what it might mean, stated that a doctor might ask a patient to draw his ?nger along the base of the penis to see if he could get ?uid out (Dr. A. Haynes). 189. Dr. Haynes stated that he has not done ?urethral milking? himself and doesn?t know of any medical practitioner who would. Tr. I at 90?91 (Dr. A. Haynes). 35 190. Urethral milking is a process used to try to expel prostate ?uid from the tip of the penis, in order to evaluate the ?uid. Tr. 11 at 11-12 (Dr. G. Vilke). 191. Dr. Vilke stated that if there are signi?cant abnormalities, such as blood in the prostatic ?uid, it would be possible to observe them without the aid of a microscope. Tr. at 12 (Dr. G. Vilke). 192. When performing prostatic massage or for treatment of prostatitis, a medical practitioner might consider milking the prostate to examine the prostatic ?uid for abnormalities. Tr. 1101? 13 (Dr. G. Viike). 193. Laboratory testing of the prostatic ?uid would be needed to con?rm a speci?c type of infection, such as a bacterial infection. Tr. 11 at 12, 32 (Dr. G. Vilke). F. Actions Possibly Constituting Sexual Abuse of Patients: 194. The medical records provided to Dr. Haynes, which included notes and medical records made by Respondent, did not in themselves indicate that Respondent sexually abused any prisoner. Tr. 1 at 121-22 (Dr. A. Haynes). 195. Among the patient statements and medical records provided to him, Dr. Haynes found that there was no indication of an abnormal examination for three patients. Tr. 1 at 97?98 and Tr. I at 120 (Dr. A. Haynes). 196. In Dr. Haynes? opinion ejaculation can occur only if there is some touching or manipulation of the glans at the tip of the penis. Tr. I at 92?93 (Dr. A. Haynes). 197. Dr. Vilke, citing nocturnal emissions, stated his opinion that a man could ejaculate without any physical stimulation or with stimulation only of the prostate. Tr. 11 at 26 (Dr. G. Viike). 36 198. In Dr. Vilke?s experience, stimulation of the glans is not always necessary for ejaculation. Tr. at 28-29 (Dr. G. Vilke). 199. Dr. Haynes stated that nocturnal emissions in young men, which might occur Without obvious stimulation, are a result of an erect penis becoming stimulated by the bed or sheets. Tr. at 86-87 (Dr. A. Haynes). 200. Dr. Vilke commonly examines a patient?s penis if the patient complains of pain, discomfort, lesions, hernia or groin pain, perineal pain, or for other reasons. Tr. at 16-17, 33, 34-35 (Dr. G. Vilke). 201. In Dr. Vilke?s opinion, for a medical practitioner to handle a patient?s penis does not fall below the standard of care. Tr. at I 7 (Dr. G. Viike). 202. When working in a prison setting, Dr. Vilke regularly uses a privacy screen whenever he will be checking a patient?s private parts. Tr. Hat19 (Dr. G. V?ke). 203. There is no legitimate medical procedure involving a physician or other healthcare practitioner masturbating a patient or having sex with a patient. Tr. I at 95 -96 (Dr. A. Haynes). 204. Dr. Haynes agreed with the statement: ?Beginning in approximately 2010 during prostate exams on approximately 17 different inmates at correctional facilities in the State of New Mexico located in Clayton or Santa Rosa, [Respondent] touched or attempted to touch these inmates in an inappropriate sexual manner. In some cases the inmates presented with no indication a prostate exam was warranted,? except Dr. Haynes stated that there were only 14 such inmates. Tr. Iaf120 (Dr. A. Haynes); see NCA at 1, 112A. 37 205. It is Dr. Haynes? opinion that the evidence indicates Respondent had ?sexual contact with a patient.? Tr. Iat12] (Dr. A. Haynes). 206. In Dr. Haynes? opinion, Respondent?s actions as described in the statement of patient R.J. were not valid medical procedures and were sexual abuse of the patient. Tr. I ar107 (Dr. A. Haynes). 207. In Dr. Haynes? opinion, Respondent?s actions as described in the statement of patient K.R. were not a legitimate medical procedure and were sexual abuse of the patient. Tr. I at 113 (Dr. A. Haynes). 208. In Dr. Haynes? opinion, Respondent?s actions as described in the statement and grievance of patient C.V. were not a legitimate medical procedure and were sexual abuse of the patient. Tr. I at 112 (Dr. A. Haynes). 209. In Dr. Haynes? opinion, Respondent?s actions as described in the letter of patient M.S. were not valid medical procedures and were sexual abuse of the patient. Tr. I at 106 (Dr. A. Haynes). 210. In the opinion of Dr. Haynes, one minute of prostate massage for patient R.R., followed by urethral milking was not medically necessary, fell below the standard of care, and was not a legitimate medical procedure. Tr. I at 101?02 (Dr. A. Haynes). 211. In Dr. Haynes? opinion, Respondent?s actions as described by patient RR. in his statement were sexual abuse of the patient. Tr. I (#108 (Dr. A. Haynes). 212. In Dr. Vilke?s opinion, the unusual response exhibited by patient R.R. resulting in ejaculation related to a prostate examination and subsequent urethral milking could have happened without there being sexual abuse of the patient. Tr. at 44-45 (Dr. G. Vilke). 38 213. In Dr. Haynes? opinion, Respondent?s actions as described by patient SD. in his July 24, 2012 statement were not valid medical procedures and were sexual abuse of the patient. Tr. I at 107 (Dr. A. Haynes). 214. In Dr. Haynes? opinion, Respondent?s actions as described in the complaint of patient MA. ?led September 29, 2011 were sexual abuse of the patient. Tr. I at 108 (Dr. A. Haynes). 215. In Dr. Haynes? Opinion, Respondent?s actions as described in the complaint of patient A.S. were not a legitimate medical procedure(Dr. A. Haynes). 216. Dr. Haynes stated that he could understand examining a patient?s testicles but did not understand why a doctor would have to put a ?nger behind the testicles and check to have him cough as was described by patient B.M. Tr. I at 111?12 (Dr. A. Haynes). 217. In Dr. Haynes? opinion, Respondent?s actions as described in the statement of patient D.S. were not a legitimate medical procedure and were sexual abuse of the patient. Tr. I at 113 (Dr. A. Haynes). 218. In Dr. Haynes? opinion, Respondent?s actions as described in the statement and grievance of patient F.M. were not a legitimate medical procedure and were sexual abuse of the patient. Tr. I at 114 (Dr. A. Haynes). 219. In Dr. Haynes? opinion, Respondent?s actions as described in the statement of patient T.G. were not a legitimate medical procedure and were sexual abuse of the patient. Tr. I at 114 (Dr. A. Haynes). 39 220. In Dr. Haynes? opinion, Respondent?s actions as described in the complaint of patient J.Cam. were not a legitimate medical procedure and were sexual abuse of the patient. Tr. I at 115 (Dr. A. Haynes). 221. In Dr. Haynes? opinion, Respondent?s actions as described in the statement of patient .Cor. appeared to be sexual abuse of the patient. Tr. I at 115 (Dr. A. Haynes). 222. Dr. Vilke questioned the credibility of the patient statements because several of them indicated that Respondent had examined them without gloves, which Dr. Vilke found very unlikely to have actually occurred. Tr. at 21-22 (Dr. G. Viike). 223. In Dr. Vilke?s opinion, Respondent?s patient medical records were meticulous and thorough, and Dr. Vilke stated that he was impressed by Respondent?s completeness in doing what was best for the patients, including prostate exams. Tr. at 56 (Dr. G. Vilke). 224. Dr. Vilke, based on the medical records, found it unlikely that more than one patient on one occasion (R.R.) had become aroused and ejaculated during an examination, because Respondent reported it on that occasion and presumably would have documented such an event if it had occurred on other occasions as well. Tr. at 22?23, 24 (Dr. G. Vilke). G. Opinions on Ultimate Issues: 225. Based on his review of the evidence, it is Dr. Haynes? opinion that Respondent has engaged in conduct likely to harm the public. Tr. 101120 (Dr. A. Haynes). 226. It is Dr. Haynes? opinion that Respondent in this case engaged in ?conduct unbecoming in a person licensed to practice or detrimental to the best interest of the public.? Tr. Iaf121 (Dr. A. Haynes). 40 227. It is Dr. Haynes? opinion that Respondent in this case engaged in ?unprofessional or dishonorable conduct as ?irther de?ned through Board Rule.? r. Iat121 (Dr. A. Haynes). 228. Based on review of the medical records, Dr. Vilke concluded that Respondent?s treatment of inmate patients was appropriate for the patient complaints documented in them. Tr. Hat 20 (Dr. G. Viike). 229. Based on review of the medical records alone, it was Dr. Vilke?s opinion that Respondent did not breach the standard of care with regard to treatment of the patients at issue Tr. at 20 (Dr. G. V?ke). 230. After reviewing the statements of the patients, Dr. Vilke?s opinion based on the medical records and the statements considered together is that Respondent did not breach the standard of care in his treatment of the patients in this case. Tr. at 24, 27. (Dr. G. Vilke). VII. CONCLUDING OBSERVATIONS OF THE HEARING OFFICER While it is the Hearing Of?cer?s duty to provide recommended ?ndings of fact for the consideration of the Board, it is of course for the Board to determine the legal conclusions to be drawn from the facts and the consequences in terms of disciplinary action, if any. New Mexico Bd. of Dental Health Care v. Jaime, 2013-NMCA-040, 115, 296 P.3d 1261, 1264. The following remarks are intended to help ?draw together? the signi?cant information for the consideration of the Board, and not to propose any particular conclusion of law. Credibility of Witnesses. The witnesses in this case included medical professionals, a corrections of?cer of the Northeast New Mexico Detention Facility, and the Board?s senior investigator. The Hearing Of?cer found all witnesses to be forthright in their testimony and highly credible. The testimony of Dr. Haynes and of Dr. Vilke appears to re?ect differences of 41 opinion as a result of differing backgrounds and experience, and differing emphasis placed upon the materials that they were provided for review in this case. Alleged Sexual Contact with Patients. The NCA alleges that ?during prostate exams on . . . inmates at correctional facilities in the State of New Mexico . . . [Respondent] touched or attempted to touch these inmates in an inappropriate, sexual manner.? The NCA also alleges that some cases, the inmates presented with no indication that a prostate exam was warranted.? NCA at 1. All of the inmate patient grievances, statements and complaints (Pros. Exhibits 7 and 11) are hearsay, being uncorroborated by direct testimony of the patients under oath. The Uniform Licensing Act clearly contemplates that a board may admit and consider hearsay evidence, if it is of a kind commonly relied upon by reasonably prudent men in the conduct of serious affairs. v. Board of Veterinary Examiners, 82 NM. 443, 444, 483 P.2d 498, 499 (1971). ?However, the revocation or suspension of a license to conduct a business or profession must not be based solely upon hearsay evidence, and other legally competent evidence, together with the hearsay evidence, must substantially support the ?ndings upon which the revocation or suspension is based. Id, citing Young v. Board of Pharmacy, 81 N.M. 5, 462 P.2d 139 (1969). Here, except for patients MA, RJ. and R.R., the patients? statements alleging improper conduct were produced days to weeks after the alleged acts, and there are grounds to believe that at least some of them may have been induced by a desire for secondary gain. It is possible that at least some of the inmates discussed their experiences with each other before filing their complaints. It is somewhat striking that many of the patients relate a rather similar sequence of events (digital rectal examination or prostate massage, then patient is told to roll over and 42 Respondent, after removing his gloves, manipulates the penis to try to get a discharge of ?uid), which appears to the Hearing Of?cer to be a level of detail unlikely to have been achieved by discussion among the inmates. It is unclear why Respondent would regularly seek to obtain a sample of prostatic ?uid by ?urethral milking? merely for visual examination. Neither of the two physicians testifying in this case had ever performed such a procedure in his medical practice. Assuming it occurred with the frequency indicated in the patient?s statements, and in the absence of a cogent medical reason for the process, this would appear to the Hearing Of?cer to constitute improper conduct of a possibly sexual nature. Records for three of the inmate patients re?ect a report or complaint more or less contemporaneous with the events giving rise to the report or complaint, on or before July 21, 2012. Patient 2011 complaint regarding incidents at the Guadalupe County Correctional Facility was clearly independent of the later complaints at Northeast New Mexico Detention Facility, and while MA. chose not to pursue his complaint at the time, one might reasonably question why three digital rectal examinations within a period of less than forty days (as reported by MA.) would be necessary, even if this 30-year-old patient suffered from prostatitis. The complaint of patient R.J ., initiated in a conversation with Corrections Officer Gish on the morning of July 21, 2012, immediately following his examination by Respondent, appears to be spontaneous and independent of any other inmate complaints. Patient examination on the afternoon of July 21, 2012, appears to have continued for a very unusual length of time, leading to concern on the part of other penitentiary staff, and 43 Respondent immediately after the examination reported that the patient had ejaculated during Respondent?s performance of ?urethral milking.? Pros. Ex. Staff reported that the time the patient and doctor were behind the privacy screen was unusually long, and the entire examination was 30 to 45 minutes. (However, the Hearing Officer reads the patient?s statement as saying that the prostate examination itself took ?at least a minute to even being longer,? rather than 9 minutes as assumed by the expert witnesses. See Pros. Ex. where the in ?a minute? has a relatively long tail and could easily be read as a The direct testimony regarding the circumstances of examination on July 21, 2012, provides non-hearsay support for the proposition that, at least on this occasion, there was inappropriate contact with the patient. Of the ten patients claiming that they received digital rectal examinations or prostate massages by Respondent, some on multiple occasions, only one (F .M.) was over the age of 50, so many of them would not have routinely received prostate examinations as part of their annual medical examination under the facility?s standards. The young age of many patients receiving prostate examinations and massages, as recorded in the medical records, supports that at least some of the prostate examinations performed by Respondent may not have been medically appropriate or necessary. The medical records, the direct testimony of Corrections Of?cer Gish regarding patient R.J., and the direct testimony of both Ms. Gish and Nurse Turner regarding patient R.R., are legally competent testimony tending to support the very large amount of hearsay evidence in this 03.38. 44 Corrective Action Plan Required by a Healthcare Entity; Termination of Medical Privileges. The NCA charges that December, 2009, [Respondent was] subject to a corrective action regarding completion of medical records while employed with Union County General Hospital. . . . In January, 2010, this hospital terminated [Respondent?s] privileges due to medical records delinquency.? The NCA charges that Respondent did not report the termination of his privileges to the Board. NCA at 2. Respondent in his 2011 license renewal application answered ?No? to the question whether he had been named in any formal request for corrective action ?led by a healthcare entity. Letters dated November 19, 2009 and December 17, 2009 (Pros. Ex. I) appear to establish that the hospital was in fact formally requiring speci?c corrective action by Respondent, failing which his privileges would not be renewed. Respondent?s medical privileges were actually terminated on January 19, 2010 (Pros. Ex. I), though subsequently reinstated (Resp. Ex. H). There was no testimony whether Respondent had or had not reported this to the Board, other than his negative response to Question No. 9 in the 2011 license renewal application. The testimony and evidence appear to support the allegation that Respondent did not correctly answer Question No. 9 in the 2011 license renewal application. Termination of Medical Liability Coverage. The NCA charges that ?[e]ffective January 19, 2010 [sic], [Respondent?s] professional medical liability insurance was cancelled? and Respondent failed to advise the Board of that fact in his 2011 license renewal application. NCA at 2. In his 2011 license renewal application, Respondent answered ?No? to Question No. 1: ?Since your last renewal, has your professional liability coverage been terminated by action 45 of the insurance company except as a result of the company ceasing to offer insurance to physicians?? Testimony and evidence establish that Respondent?s professional medical liability insurance was terminated by the company on February 19, 2010, then was reinstated on April 26, 2010 (Pros. 2). There? is no evidence, and it would strain credulity to argue, that the insurer ceased to offer coverage to physicians on February 19, 2010, but was again offering it just two months later. Based on the foregoing, it appears that Respondent?s answer to the question regarding termination of insurance, in his 201 1 renewal application, was not correct. Dated: June 13, 2012. Respectfully submitted, ohn L. Appel I 7/ Hearing Officer for the New Mexico Medical Board c/o Coppler Law Firm, RC. 645 Don Gaspar Avenue Santa Fe, New Mexico 87505 (505) 988?5656 46 EOEHVE FEB 1 8 2013 BEFORE THE NEW MEXICO MEDICAL BOARD IN THE MATTER OF MARK WALDEN, M.D. License No. 2007-00765 No. 2013?009 Respondent. NOTICE OF CONTEMPLATED ACTION YOU ARE HEREBY NOTIFIED that pursuant to provisions of Section 61-1-4 NMSA 1973 of the Uniform Licensing Act the New Mexico Medical Board ("Board") has before it suf?cient evidence that, if not rebutted or explained, will justify the Medical Board imposing sanctions that could include restricting, revoking or suspending your license to practice medicine in the State of New Mexico. 1. You are subject to action by the Board pursuant to Sections 61-1-1 et seq. NMSA 1978 of the Uniform Licensing Act and Sections 61-6?1 et seq., NMSA 1978 of the Medical Practice Act (?the Act?). and Sections 61-7-1 et seq. of the Impaired Health Care Provider Act 2. This contemplated action is based on the following allegations: A. Beginning in approximately 2010, during prostate exams on approximately seventeen (17) different inmates at correctional facilities in the State of New Mexico located in Clayton or Santa Rosa, you touched or attempted to touch these inmates in an inappropriate, sexual manner. In some cases, the inmates presented with no indication that a prostate exam was warranted. B. In December, 2009, you were subject to a corrective action regarding completion of medical records while employed with Union County General HOSpital. In January, 2010, this hospital terminated your privileges due to medical records Page 1 of 4 delinquency. C. Effective January 19, 2010, your professional medical liability insurance was cancelled. D. You failed to report the aforementioned termination of your hospital privileges to the Board. E. In your application to renew your license in 201 1, you answered ?no? to the following questions: - Question 1: Since your last renewal has your professional liability coverage been terminated by action of the insurance company except as a result of the company ceasing to offer insurance to physicians? - Question 9: Since your last renewal have you been named in any formal requests for corrective actions filed by any healthcare entity where you have had an appointment (a request that could result in either formal or informal proceedings?) 3. The above allegations, if proven, would constitute a violation of the following provisions of the Act and constitute grounds for action against your license: A. Section fraud or misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring B. Section conduct likely to deceive, defraud or harm the public; C. Section failure to report to the board any adverse action taken against you by a health care entity; D. Section sexual contact with a patient; Page 2 of 4 E. Section conduct unbecoming in a person licensed to practice or detrimental to the best interests of the public; F. Section improper management of medical records, including failure to maintain timely, accurate, legible and complete medical records; and G. Section ?unprofessional or dishonorable conduct? as further de?ned through Board Rule 16.1 dishonesty. 4. Please take notice that pursuant to Section 61-1?4, you may secure a hearing before the Board by depositing in the mail within twenty (20) days after service of this notice a certi?ed return receipt requested letter addressed to the Board and containing a request for a hearing. If you do not request a hearing within twenty (20) days after service of this notice as described above, the Board will take the contemplated action, imposing sanctions that could include the revocation or suSpension of your license to practice medicine in the State of New Mexico, and there will be no judicial review of their decision. 5. Pursuant to Section 61-1-8 NMSA 1978, you have the right to be represented by counsel or by a licensed member of your profession or both, and to present all relevant evidence by means of witnesses, books, papers, documents and other evidence; to examine all opposing witnesses who may appear on any matter relevant to the issues and have subpoenas duces tecum issued as of right prior to the commencement of the hearing, to compel the attendance of witnesses and the production of relevant books, papers, documents and other evidence upon making a written request therefore to the Board. The issuance of such subpoenas after commencement of the hearing rests with the discretion of the Board or Hearing Of?cer. 6. The issuance of this Notice of Contemplated Action is not a disciplinary event reportable to any data bank but is a public document open to public inSpection. Page 3 of 4 7. In the event that the Board takes a ?nal action against you as speci?ed in Section 61-1-3 of the ULA, you shall bear all costs of disciplinary proceedings pursuant to Section 61-1- of the ULA unless excused by the Board. Dated this [Wday of 2013. NEW MEXICO MEDICAL BOARD Ly/nt? Hart, Executive Director NM Medical Board 2055 S. Pacheco, #400 Santa Fe, New Mexico 87505 (505) 476-7220 Page 4 of 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Notice of Contem lated Action was served via certi?ed mail to Respondent at the below address this 18t day of February 2013. Mark Walden, M.D. c/o Dan Cron, Esq. Dan Cron Law Firm PC 200 W. DeVargas Street #3 Santa Fe, New Mexico 87501-2679 Mark Walden, M.D. PO Box 668 Raton, New Mexico 87740 ?i's ?3 . It":