(.1:va XAVIER BECERRA Attorney General of California FILED MATTHEW DAVIS Supervising Deputy Attorney General . STATE OF STEVE DIEHL ME y. AL BOA OF GALI ORNIA Deputy Attorney General SA 1 'i . 20 2 State Bar No. 235250 7 BY California Department of Justice 2550 Mariposa Mall, Room 5090 Fresno, CA 93721 Telephone: (559) 477-1626 Facsimile: (559) 445-5106 Attorneys for Complainant ANALYST BEFORE THE BOARD OF CALIFORNIA . DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Case No. 800-2016?025845 ACCUSATION . 728 E. Bullard Avenue, Suite 101 Fresno, CA 93710 Physician?s and Surgeon?s Certi?cate No. A 32806, Respondent. Complainant alleges: PARTIES 1. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her of?cial capacity as the Executive Director of the MedicalBoard of California, Department of Consumer Affairs (Board). 2. On or about August 21, 1978, the Medical Board isSu?ed Physician?s and Surgeon?s Certificate Number A 32806 to Robert Adams Graham, M.D. (Respondent). The Physician?s and Surgeon?s Certi?cate? was in full force and effect at all times relevant to the charges brought herein and will expire on June 30, 2018, unless renewed. I i 1 (ROBERT ADAMS GRAHAM, M.D.) ACCUSATION N0. 800-2016-025845 00 \1 43 DJ 00 JURISDICTION 3. This Accusation is brought before the Board, under the authority of the following laws. All section references are to the Business and Professions Code unless otherwise indicated. 4. Section 2227 of the Code states: A licensee whose matter has been heard by an administrative law judge of the Medical Quality Hearing Panel as designated in Section 11371 of the Government Code, or whose default has been entered, and who is found guilty, or who has enteredinto a stipulation for disciplinary action with the board, may, in accordance with the provisions of this chapter: Have his or her license revoked upon order of the board. Have his or her right to practice suspended for a period not to exceed one year upon order of the board. Be placed on probation and be required to pay the costs of probation monitoring upon order Iof the board. Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses-approved by the board. Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative lawjudge may deem proper. Any matter heard pursuant to subdivision except for warning letters, medical review or advisory conferences, professional competency examinations, continuing education activities, and cost reimbursement associated therewith that are agreed to with the board and successfully completed by. the licensee, or other matters made con?dential or privileged by existing law, is deemed public, and shall be made available to the public by the board pursuant ,to Section 803.1.? 5. Section 2234 of the Code, states: ?The board shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following: 2 (ROBERT ADAMS GRAHAM, MD.) ACCUSATION NO. 800-2016-025845 '28 Violating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to Violate any provision of this chapter. Gross negligence. Repeated negligent acts. To be repeated, there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts. An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act. the standard of care requires a change in the diagnosis, act, or omission that constitutes the negligent act described in paragraph (1), including, but not limited to, a reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs from the applicable standard of care, each departure constitutes a separate and distinct breach of the standard of care. i i Incompetence. The commission of any act involving dishonesty or corruption which is substantially related to the quali?cations, functions, or duties of a physician and surgeon. Any action or conduct which would have warranted the denial of a certi?cate. The practice of medicine from this state into another state or country without meeting the legal requirements of that state or country for the practice of medicine. Section 2314 shall not apply to this subdivision. This subdivision shall become operative upon the implementation of the proposed registration program described in Section 2052.5. The repeated failure by a certi?cate holder, in the absence of good cause, to attend and participate in an interview by the board. This subdivision shall only apply to a certi?cate holder who is the subject of an investigation by the board.? . 6. Section 2052 of the Code states: Notwithstanding Section 146, any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or af?icted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, 3 (ROBERT ADAMS GRAHAM, M.D.) ACCUSATION NO. 800-2016?025 84f blemish, deformity, disease, dis?gurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended . certi?cate as provided in this chapter [Chapter 5, the Medical Practice Act], or without being authorized to perform the act pursuant to a certi?cate obtainedin accordance with some other provision of law, is guilty of a public offense, punishable by a ?ne not exceeding ten thousand dollars by imprisonment pursuant to subdivisiOn of Section 1170 of the Penal Code, by imprisonment in a county jail not exceeding one year, or by both the ?ne and either' imprisonment. Any person who conspires with or aids or abets another to commit any act described in subdivision is guilty of a public offense, subject to the punishment described in that subdivision. The remedy provided in this section shall not preclude any other remedy provided by law.? I FIRST CAUSE FOR DISCIPLINE (Gross Negligence) Respondent Robert Adams Graham, MD. is subject to disciplinary action under section 2234, subdivision in that he engaged in an act or acts amounting to gross negligence. The circumstances are as follows: 8. Between July, 2011, and November 4, 2014, Rebekah DeMoss, R.N., provided cosmetic treatments to hundreds of patients without physician supervision. These treatments included Botox anti-wrinkle treatments, and uvederm injectable facial ?ller treatments. Both of these treatments are available by prescription only. These treatments were provided to patients at spas and private homes, under the name Rejuvenation.? Nurse DeMoss employed Respondent as Medical Director of ZLB Rejuvenation, for which he was paid $500 per month. During the time that Respondent was Medical Director of ZLB Rejuvenation, he did not perform any examinations of patients who received cosmetic treatrnents performed by DeMoss, and he did not review any patient medical records related to cosmetic treatments performed by DeMoss. Respondent allowed DeMoss to order medications using his name and medical license. 4 (ROBERT ADAMS GRAHAM, MD.) ACCUSATION NO. 800-2016-025 84f Respondent was unaware of when, what, or how much medication DeMoss ordered, or where. she ordered it from. Respondent had no standardized protocols in place governing the care DeMoss provided, and Respondent was unaware of what, if any, prior training DeMoss had in performing cosmetic treatments. 9. Registered Nurses may perform cosmetic treatments under the supervision of a physician. When prescription drugs or devices are to be used, a prior physical examination by a physician is required. Once the examination is performed, the physician can delegate the procedure to the nurse, pursuant to standardized procedures that dictate when the physician should be contacted regarding a patient?s condition. The physician must be immediately reachable and able to assist in the management of the patient?s care. 10. On or about November 3, 2014, patient S.E. presented to DeMoss for a Botox treatment of wrinkles in the glabellar area and chin as well as a browlift. Respondent was not present and provided no prior physical examination. DeMOss provided the requested treatment while under observation by an undercover investigator. 11. Patient P.E. presented to DeMoss for uvederm and Botox treatments on four occasions: April 27, 2013; November 29, 2013; June 6, 2014; and September 9, 2014. DeMoss failed to document a medical history, and Respondent failed to perform a prior physical examination. Respondent never reviewed this patient?s chart. 12. Patient S.H. presented to DeMoss on nine occasions between November 25, 2012, and October 7, 2014, for Botox and/or Juvederm treatments. DeMoss never documented a medical history, and Respondent never documented a prior physical examination. Respondent never reviewed this patient?s chart. I 13. Patient C.H. presented to DeMoss on three occasions: December 4, 2013; March 24-, 2013; and September 12, 2014, for Botox. and/or uvederm treatments. Respondent never documented a prior. physical examination of this patient. Respondent never reviewed this patient?s chart. 7 14. Patient R.S. presented to DeMoss on ten occasions between July23, 2011, and November 4, 2014, for Botox and/or Juvederm treatments. DeMoss never documented a medical 5 . (ROBERT ADAMS GRAHAM, M.D.) ACCUSATION NO. 800-2016-02584f 01-history, and Respondent never documented a prior physical examination. Respondent never reviewed this patient?s chart. 15. Respondent committed gross negligence in allowing a registered nurse, whom he had agreed to supervise, to evaluate and treat patients with Botox and Juvederm without a prior physical examination. SECOND CAUSE FOR DISCIPLINE (Repeated Negligent Acts) 16. Respondent Robert Adams Graham, MD. is subject to disciplinary action under section 2234, subdivision (0), in that he committed repeated acts of negligence. The circumstances are set forth in paragraphs 8 through 15, above, which are incorporated here by reference. THIRD CAUSE FOR DISCIPLINE (Aiding/Abetting Unlicensed'Practic-e) 17. Respondent Robert Adams Graham, MD. is subject to disciplinary action under section 2234, subdivision and section 2052, subdivision in that aided and abetted the unlicensed practice of medicine. The circumstances are set forth in paragraphs 8 through 15, above, which are incorporated here by reference. 6 (ROBERT ADAMS GRAHAM, MD.) ACCUSATION NO. 800-2016-025 84f PRAYER WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Medical Board of California issue a decision: 1. Revoking or suspending Physician's and Surgeon's Certi?cate Number A 32806, issued to Robert Adams Graham, 2. Revoking, suspending or denying approval of Robert Adams Graham, M.D.'s authority to supervise physician assistants and advanced practice nurses; 3. Ordering Robert Adams Graham, M.D., if placed on probation, to pay the Board the costs of probation monitoring; and 4. Taking such other and further action as deemed necessary and proper. KIMBERLY Executive Dir tor Medical Board of California Department of Consumer Affairs State Of California Complainant FR2017305683 95244950.docx 7 (ROBERT ADAMS GRAHAM, MD.) ACCUSATION NO. 800-2016-025 84f