Office of the ATTORNEY GEN ERAL 109 State Street Montpelier, VT [15609 000335 STATE OF VERMONT BOARD OF MEDICAL PRACTICE In I?ezjnseph A. Mime. M.D. Dnekel Nu. MP5 fix-(MU? STIPUIATION AND CONSENT ORDER NOW COMES jurienh A. Abate. and the State (it Tt'ertnunt. by uml Attorney General \?Villi?ltt II. .?inrrell :tml (ienerni Margaret 0. Vinrent. and agree tutti stipulate HS l'nilnws: l. Jnselilt A. Aliatle. MJ). Vertnunt Metlirnl Lirense Rt??l??ltimll i5 a in?l?i certilieti orthopaedic snrgenn. Jurisdiction rests with the Btl?ll?tl nl' Metiienl l?l'netiee {HunrdJ hy virtue Ui- 2ti [353. 135-1. 1398 :uui 3 9i HI He}. I. Backgyound. .3). Respundenl is :un surgeon specializing in Spurn; Medieine. His me; with Sports and ()rlhupedie Rehabilitatiun Center at Fletrher Allen ?Ci-till! Cure in Cniehe?ter. Vermth 1. 111 2007. lite Board hertune nwnt'e nil thin;th patient}. Ui- Dt?. relinrting the liillnwing lliets I'L?gttl'tiillg Dr. Aintte?5 pln'sirnl The female patients were beingr treated liir knee :Lntir'nr hip [it'nliletiis. Dr. Aimle would he [he uni)" one present in the exmninttliun mum. ti. \Vititntit prnper warning or explunulinn Dr. Aime wnnitl tutteh the pnlient near, on ur in their genitals withunt using gloves. Office of the ATTORNEY GENERAL 109 State Street Montpelier, VT 05609 000336 In some ni~ the female patient liles. Dr. Ahale lailetl In ant-(11mler ehart the alin'etnentinnetl exam. In some instances the 1visit Was not in her than. H. The patients thal Dr. Ahate performed the al'nt?ententinnetl exam withnul ginning eaplieit t'erhal ennsent li?nln theln. II. Revocation of Medical License does not enutesl the [acts set forth ahnve in [nu'agl'aphs l! ahnve, and agrees that the Bnartl {If MCliiL'ili Practice may adopt and enter param?aphs It as unenntested ?ndings nl'l'at't in this matter. Respondent agrees that. lngether, pez?tnrming a genital exant wilhnul the use til'glnves. not adequately (ha'tnnenling the examination in smne instances, not gaining explit'il t'erhai ennsenl. and it!) tailing tn ta?m?itie proper wanting,r nr explanation that his exalninatinn would inelude tnuehing the patient near on or in their genih?s meets the de?nitions 2'0 135-1. 1 l. makes nn l'nrthet' :tthnissinns. 12. Respondent acknowledges that he antl \?Uhlnlarih' agrees and enters in to the Slipulalinn aml Cnnsenl ()t'tlei'. Ile that he has had ath'it'e regarding the matter hehn'e the Board and white nl'enunse] in reviewing this Stipulalinn and Cnnsenl ()rtler. agrees here that he is Well satis?ed with aJl and representatimt he has received in this matter. He am'ees and understands that, exet?uling this document, he is waiving any right In he served with hmnal eharges, ln ehallenge the jurisdiction and nl?the Board in these matters. In he presented with the against hint. In muss-examine adverse witnesses. and t0 {iliel? et?itlellee Ul? his (mm In 000337 column the Slate's L'll?ll'gL?h. 20' {i [3.56; 3 123.11. 809. 8] l. 13. Nu spucilic'aliun nl' has lilul l1}: Sum.- in [his inullur. 1 st nu! previously been 1114: sulect?l ul'tlisriplinarj.? ni'linn l1}: VL?I'nmnl Board (11' Medical Pnu'lirc. Terms and Conditions of AmeemenL l. Respondent :u?knuwludgcs in: i5 unlvrim; inln ll1i5 with Yurinunl Bumd ul' Mcclirul I?rni'liu'. wislirs [u Willi linnlily 'l now [Iclnling lmliarc llu: Board 01' Malina] l?rm'liru. :igTuL-s that I I our or more [110 act lurlli :ilnn'u [Irm'nlc sulln'wnl [urinal [1:15.15 Bunrtl 01' Mctliml PI'Elt'llt'L' In enter its and lo order [he ni?linn herein. Eli 5553' 135 L, lHlil. and [398. LG. knowingly :iml voluntarily illill in lieu of the lime. and nni'urlninu' (If a pulilir hearing. In: {luvs unl conical Bunnl ul' Mmliml I?i'm'lii'c REVOKING his lu mctlicinc in Sum- of VL?rmunl. l'lL? Harm's Ilml any prior rights ul'lit'cnsurc in Illis Slum. or lK? wholly rnitl and willinul and that he shall rcmin no residual rights nl'unj.? kind as I in nlutlic'nl lit'cnsurc in llu' Suite ul understands and agrees the . . . . .. . . REVOCATION nl Ins. nicclu'nl shall In: and nun-amicnlulalc In any Of?ce of the H1. ?05.11011de amt-us and warrants Hull a! nu In: by any ATTORNEY GENERAL munm lii'cnsurc. :unlx?nr ('unlinunliim nl' liccnsurc n5 :1 physician (11' 109 State Street I I: . . 055m :nvclinil in [he hlalu nl ur nl or Office of the ATTORNEY GENERAL 109 State Street Montpelier, VT 05609 000333 passage Respondent expressly agrees that hereafter the Board may and shall return to him. without at'tion or ol'tlne process ol'any kind, any application. request. motion. petition. or other writing Iroin him With regard to reinstatement, relieensure, or eonlinnalion ol? lirensnre. Finally, the 1 Vermont Board ol' Medieal l?rat'tit'e agrees that upon Respondent's execution ol- this Stipulation and Consent Order. pursuant to the terms ltereitt. all matters involving llitn tltat are currently open before the Board shall he athninisttalirel)? elosed by Board. rl'lterealler, the Board will take no l'urther aetion on these matters. ahsenl non-eolnplianee with the terms and conditions ol'tltis by Rt'spondent or the rereipt of new information or ei'itlenre warrtuttiug at'titnt hy the Board. Eli MBA. 13.55. lilfil. 1398. This Stipulation and Consent Order is conditioned upon its hy the Vermont Board of Medita] Prat'tit'e. Respondent expressly requests the Board's review and approyal of this agt?eetltenl. It the Board rejects :uny part of this tloeutnent. the entire agreement shall he considered \?oid. Respondent agrees that in snt'lt a ease he shall not assert a Claim or defense that his rights ol- tltte proress have heen liy stlt'li itu'hoale eonsideration. Respondent arknowledges and understands that this Stipulation and Consent Order. it approved. shall he a pnhlie shall he made part ol' Respondent's lieensine; lile. and shall he reported to other lirensittg authorities and/or entities including. not limited to, the National Practitioner Data Bank and the Federation ol'h'tate Medieal Boards. 13. exeltange lor the aetions hy the Board. as set lin'tlt herein. sperilieally including Paragraphs 1.5 through 17. ahoi'e. Respondent expressly ag?t?ees to he hound by all terms and eonditions {it this Stipulation and Consent Order. 'l?het?elore. the parties jointly Of?ce of the ATTORNEY GENERAL 109 State Street Montpelier, VT 05609 000339 acht llnu slmultl terms and mndiliuns of Ibis Slipululinn mu! ()rdL-r ha: (lumnul hy the ul' Mccliml Pmnicc. [Inc Board may culcr an order uml L'mnliliuns herein. thereby REVOKING the Vu?munl mmliml licensu ul' A. Abate. Dated 31 \"L'I'numl [his gg_ day 2010. JAM H. A'l'l?t (il'lNliRAI. Rl'l'l' J. Assislunt (k?ncml [his (lay Dnlucl a! ERIC I'm" Resp-mulvul 4 000340 FOREGOING, As TO JOSEPH A. ABATE, M.D. APPROVED AND ORDERED VERMONT BOARD OF MEDICAL PRACTICE 63% 1?7 '1 m- MD Office of the ATTORNEY GENERAL 109 State Street Montpelier, VT 05609 STATE OF VERNIONT BOARD OF MEDICAL PRACTICE In re: .Joseph a. Abate, MD. - Docket No. MP8589-0607 INTRODUCTION On July 1 1, 2007,the Vermont Board of Medical Practice (Board) met to consider the Respondent?s Motion to Amend Cessation of Practice Order,'which the Respondent ?led June 22, 2007,52 and the State?s Response to Respondent?s Motion, which the State ?led June 26, 2007. The Board Hearing Panel included: David W. Clauss, M.D., Chair; Patricia A. King, M.D., . Vice Chair; Ezekiel S. Cross, Public'Member; Russell P. Davignon, Ml), John J. . ?Murray, William H. Stouch, Toby Sadkin, and Florence Young, Public Member. James S. Arisman, Attorney General, appeared on behalf of the State. Eric S. Miller, Esq, appeared via telephone on behalf of Respondent. Phillip J. Cykon, Esq. served as Presiding Of?cer. . FINDINGS AND CONCLUSIONS 1. Respondent has moved the Board, at Fletcher Allen Health Care?s (FAHC) request, to amend the Board?s June 7, 2007 Order to allow Respondent to (1) consult with his colleagues regarding continuity of care for Respondent?s former patients; (2) engage in administrative tasks . necessary for FAHC to bill and collect payment for professional services previously rendered by ReSpOndent; and (3) to testify atan upcoming workers? compensation hearing. ?r 2. In support of his motiOn, Respondent maintains that his colleagues require his specialized expertise regarding hip, pelvis, and groin surgery; FAHC may need Respondent to engage in certain administrative tasks in order to collect payment for his past services; and hehas been subpoenaed to testify in the workers? compensation matter. The State oppoSes the motion on the grounds that Respondent?s return to the practice of . medicine, even on the limited basiS'that he requests, creates an immediate threat to the health, safety, and Welfare Of the public. The State maintains that allowing the Respondent to provide any level of patient Care would be a violation of the public?s trust. 4. At the June 6, 2007 Hearing, Respondent, through his counsel?s written and oral representatiOns, vOluntarily consented to ceasepracticing medicine during the Board?s investigation of pending allegations. In addition, it was represented to the Board that I Respondent had agreed to take administrative leave from all medical duties at FAl-ICand UVM, and that plaCed him on such administrative leave. 'As a result, Respondent represented to the Board that he was unwilling and unable to practice medicine at the'current time. 5. In the June 7, 2007 Order, the Board found that if the allegations detailed in the Af?davit - of Probable Cause of Detective Soychak were proved to be true, they Would present an immediate threat to the health, safety, and welfare of the public should Respondent continue in the practice of medicine at thepresent time. However, based upon Respondent?s representations as set forth above in Finding 4, the Board found that if Respondent was-not practicing medicine, the circumstances did not constitute an imperative threat that required the emergency action of a summary suSpension of his license to practice medicine. Rather than impose the 7' summary suspension as requested by the State, the Board aCcepted andordered Respondent?s voluntary cessation Of practice. 6. The Board concludes that its previous decision to accept and order Respondent?s voluntary cessation ?of practice, instead of ordering a. summary suspension, was based solely on Respondent?s representation that ire-voluntarily agreed to cease practicing any and allmedicine during the Board?s investigation of the allegations. Simply stated, the Board-took Respondent and his counsel at their word. The Board further concludes that no change in circumstances has been demonstrated that warrants any change in the Board?s June 7, 2007 Order, and that any practice of medicine by Respondent while the Board?s investigation or criminal charges are pendingwould present an imminent and imperative threat to the public. ORDER After considering all of the material presented by the parties and their oral presentations at the hearing, the Board issues the following ORDER: l. The ReSpondent?s MotiOn to Amend Cessation of Practice Order is DENIED. - The Board?s une 7, 2007 Order remains in full force and effect. Failure to comply with an order of the Board shall constitute unprofessional conduct under 26 V.S.A. 1354(25), - - 4. This Order?shall be a public record under 26 1318(c). ON BEHALF OF THE BOARD: David W. -Cla\?s?s, Physician Member Date 5/27 . .Filed with Board Of?ce: I 3/0 7 Date BMW 7/5/07 STATE OF VERMONT BOARD OF MEDICAL PRACTICE In re: Joseph A. Abate, M.D. Docket No. MPS-89-0607 INTRODUCTION 6, 2007, the Vermont Board of Medical Practice (Board) met to consider the State?s Motion for Summary Suspension and Motion to Conduct Proceedings Pursuant to Statutory Provisions. Respondent, in response to the Summary Suspension Motion, submitted a letter dated June 6, 2007, and an email correspondence dated June 5, 2007, regarding Respondent?s status at Fletcher Allen Health Care (FAHC). The Board Hearing Panel included; David W. Clauss, M.D., Chair; Patricia A. King,M.D., Vice Chair; Ezekiel S. Cross, Public Member; Russell P. Davignon, M.D., Montpelier; Denis J. Lamontagne, John J. Murray, Alexander Northern, Public Member; William H. Stouch, Peter 'l?homashow, and Florence Young, Public Member. James S. Arisman, Esq.; Assistant Attorney General, appeared on behalfof the State. Joseph A. Abate, M.D., ReSpondent, . appeared and was represented by Eric S. Miller, Esq. Phillip J. Cykon, Esq. served as Presiding Of?cer. FINDINGS AND CONCLUSIONS 1. Respondent holds Vermont Medical License Number 042-0009529. 2. Based on the Af?davit ofProbable Cause from Detective Edward Soychak: of the Chittenden Unit for Special Investigations, the Vermont Attorney General?s Of?ce has filed a motion for summary suspension of Respondent?s license to practice medicine in Vermont. The State alleges that Respondent has acted unprofessionally and dishonorably toward a patient. 3. . The State maintains that the totality of circumstances set forth in the Affidavit of Probable Cause demonstrates that Respondent abused his patient?s trust, acted improperly toward her. ignored proper boundaries and good practice, and acted unprofessionally and dishonestly toward her. The State maintains further that Respondent?s conduct is threatening and dangerous to patients and the public and undermines the confidence in the profession of medicine. 4. Based on these alleged circumstances, the State maintains that Respondent?s continuing possession of an unsuspended Vermont medical. license represents an immediate and continuing danger to patients and to the health, safety, and welfare of patients and the public. For these reasons, the State requests that the Board order a summary suspension of Respondent?s license. 5. ReSpondent, in the letter submitted by his attorney, strongly disputes that Respondent has engaged in any inappropriate or unprofessional contact with his patient. He expects that the Board?s investigation, when complete, will conclude that Respondent?s examinations of his patient were medically appropriate and were designed solely to allow him to diagnose and treat her medical conditions. 6. Even though he disagrees with the allegations contained in the State?s motions, . ReSpondent maintains that he recognizes the seriousness of the allegations, and is. cognizant of i the Board?s duty to protect the public from the imminent risk of harm. Respondent represents that he agrees to a voluntary cessation of practice and that the Board should enter an order accepting and enforcing his voluntary cessation of practice. In addition, it appears that AHC has placed Respondent on administrative leave, and Respondent has agreed to that action. Respondent has represented that he is both unwilling and unable to practice medicine at the current time. 7. 3 V.S.A. 814(c) reads in relevant part: If the agency finds that public health, safety,lor welfare imperatively requires emergency action, and incorporates a ?nding to that effect in its order; summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be instituted and determined. 8. The allegations set forth in detail in the Af?davit of Probable Cause are serious. Respondent agrees they are serious. The Board is gravely concerned that these allegations, if true, present an immediate threat to the health, safety, and welfare of the public should Respondent continue in thepractice of medicine at the present time. However, if Respondent is not practicing medicine, the Board does not feel that the circumstances constitute an imperative threat that requires the emergency action of a summary suspension; ORDER After considering all of the material presented by the parties and their oral presentations at the hearing, the Board issues the following ORDER: 1 . The State?s Motion to Conduct Proceedings Pursuant to Statutory Provisions is 2. In lieu of the State?s Motion for Summary Suspension, Respondent?s voluntary cessation of practice is accepted and 3. Respondent or the State may petition the Board for additional or different relief if circumstances warrant; .4, This ORDER shall remain in effect so long as the Medical Board investigation or criminal charges are pending; 5. Failure to comply with this ORDER shall constitute unprofessional conduct under 26 V.S.A. 1354(25); 6. . This ORDER shall be a public record under 26 V.S.A. ON BEHALF OF THE BOARD: David Wf??lauss, MD?hysician Member Date( Filed with Board Office: I 7 Date Date ofEntry: