.XAVIER BECERRA I FILED Attorney General of California STATE OF CALIFORNIA JUDITH T. ALVARADO MEDICAL BOARD OF CALIFORNIA Supervising Deputy Attorney General SACRAMENTO 3? 20 (Z NICHOLAS B.C. SCHULTZ Deputy Attorney General State Bar No. 302151 California Department of Justice 300 South Spring Street, Suite 1702 Los Angeles, California 90013 Telephone: (213) 269-6474 Facsimile: (213) 897-9395 E-mail: Nicholas.Schu1tz@doj .ca.gov Attorneys for Complainant BY 14/. Vow/ta ANALYST BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the First Amended Accusation Case No. 800-2015-014249 Against: FIRST AMENDED ACCUSATION MICHAEL S. MD. 41593 Winchester Road, 101 Temecula, California 92590 Physician?s and Surgeon?s Certificate No. A 623-14, Respondent. Complainant alleges: PARTIES l. Kimberly Kirchmeyer (Complainant) brings this First Amended Acetisation solely in her of?cial capacity as the Executive Director of the Medical Board of California, Department of Consumer Affairs (Board). 2. On or about May 9, 1997, the Board issued Physician?s and Surgeon?s Certi?cate Number A 62314 to Michael S. Basch, M.D. (Respondent). That license was in full force and I effect at all times. relevant to the charges brought herein and will expire on April 30, 2019, unless renewed. I (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249 JURISDICTION 3. This First Amended Accu'sation 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. 2 4. Section 2001.1 of the Code states: ?Protection of the public shall be the highest priority for the Medical Board of California in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramoun i i 5. 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 entered into 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 of 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 ass'ociated therewith that are agreed to with the board and successfully completed by the licensee, or other matters made con?dential or privileged by 2 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249 existing law, is deemed public, and shall be made available to the public by the board pursuant to Section 803.1.? 6. 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: Violating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate airy provision of this chapter. 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 standardof care shall wconstitute 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. When 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 7. section 2266 of the Code, states: ?The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduc 8. Between March 2008 and August 2013, Respondent worked as a physician at Talia Medical Group, which is located at 41593 Winchester Road, #101, in Temecula, California. - 3 . (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION N0. 800-2015014249 LU\900 Patient A 9. Respondent ?rst saw Patient on or about April 30, 2013. At the time of that visit, Patient A was a 92-year-old woman with a medical history of heart disease, hypertension, osteoporosis, gouty arthritis, and osteoarthritis. Prior to this initial meeting, Patient A?s daughter informed Respondent that Patient A suffered from dementia and bipolar illness. Patient A?s daughter requested hospice care2 for her mother. Patient A?s daughter also reported that Patient A was severely dependent on pain medications. During this initial visit, Respondent performed a detailed review of Patient A?s systems and an extensive physical examination. Patient A?s body mass index was 17.54. There were no particular elicited and the physical examination. revealed no abnormalities. Importantly, there were no abnormal reported in Respondent?s chart notes. Patient A was alert and oriented. She denied any unusual anxiety or depresSion. Respondent ordered laboratory studies and reviewed Patient A?s'current medications. 10. - Respondent next saw Patient A on or about, May 7, 2013. Respondent reviewed Patient A?s laboratory results and renewed her pre?existing prescription medications initially prescribed by her primary care physician(s). Patient A?s laboratory studies Were unremarkable as she had normalhemoglobin, albumin, and renal function. Patient A?s bodymass index was 17.36 at this visit. Patient A denied any fatigue, weakness, or shortness of breath. Again, Respondent denied any unusual anxiety or depression Patient A was alert and oriented. Importantly, Respondent did not perform a functional capacity assessment during this visit to determine if Patient A was able to perform her simpleactivities of daily living. 1 The patient herein is referred to as Patient A to protect her privacy. 2 Hospice care is a model of medical care that is designed to provide comprehensive interdisciplinary palliative care for patients .with life-limiting illness and a prognosis of six (6) months or less if the disease follows its natural course. Hospice care is appropriate for patients entering the last weeks or months of life, and when patients or their families decide to forego further curative therapies. Hospice care can also be offered to patients with declining functionality who are also suffering from an end stage non?cancer diagnosis such as heart attack, chronic obstructive pulmonary disease, cirrhosis, renal failure, dementia, and failure to thrive. . 4 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249 4st? NOLA Respondent diagnosed Patient A with failure to thriVe.3 However, Respondent did not complete a detailed history of the patient focusing on timing and of frailty, disability, and impairment. ReSpondent failed to explore underlying weight loss and feeding factors such as diarrhea, and nausea. Respondent did not document or assess Patient A?s ability to perform activities of daily livingror her living situation. Moreover, Respondent did not conduct a mental status exam or geriatric depression scale to evaluate Patient A for dementia or depression, which are often a part Of failure to thrive Finally, Respondent did not order additional laboratory testing or radiologic imaging to exclude any chronic illnesses-and cancer diagnoses. 12. Respondent also diagnosed Patient A as having dementia4 with mental incapacity on or about May 7, 2013. However, Respondent did not utilize cognitive testing to screen and diagnose dementia illnesses, such as the Mini-Mental Status Exam (MMSE), the Cognitive Abilities Screening Instrument (CASI), or the Montreal Cognitive Assessment (MOCA). Similarly, Respondent did not order brain scans or additional laboratory testing to exclude the I reversible causes of dementia. Respondent also did not refer Patient A for in-depth testing administered by a In total, Respondent did not complete any formal cognitive testing or asSessment of Patient A?s functional capacity.- 3 Failure to thrive is a of global decline in older adults that often manifests in the form of weight loss (greater than ?ve percent in a twelve-month period), decreased appetite, poor nutrition, inactivity, and physical exhaustion or weakness. This occurs in older adults as physical frailty worsens and is frequently compounded by cognitive impairment and functional disability. Failure to thrive is a nonspeci?c manifestation of an underlying physical, mental, or condition. Patients often experience dif?culty in completing self-care and independent living tasks. Delirium, depresSion, and dementia are the most common conditions impairing cognitive status in older adults and, therefore, they are the leading causes of failure to thrive in the geriatric population. 4 Dementia is a decline and loss of memory, reasoning, judgment, language, and behavior that are not part of the normal aging process. It progressively worsens over time and is irreversible. As the disease progresses, patients will often suffer from mood swings, personality changes, paranoia, poor judgment, and an inability to learn new information. In the later stages of dementia, a patient will have complete loss of short-term and long-term memories. Hallucinations often manifest in late stage dementia. Consequently, dementia patients are dependent upon others for normal daily activities such as bathing, dressing, feeding, and personal hygiene. The risk of malnourishment can lead to frequent infections and mechanical falls that are dangerous. Alzheimer?s dementia is responsible for approximately fifty (50) to seventy (70) percent of dementia cases. There is no known cure for dementia and the medial duration of survival is about eight (8) years from the time of diagnosis. 5 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800?2015-014249 13. After her second and last visit with Respondent, and after knowing Patient A for only about one week, Respondent accepted Patient A into a local hospice program based on the diagnoses of dementia with declining functional status and failure to thrive However, Respondent?s chart notes did not re?ect a terminal prognosis of six months or less for Patient A. Rather, Patient A?s cardiopulmonary, liver, and kidney functions were not end stage.? She had no documented active cancers. 14. Although Patient A did not have more clinical visits with'Respondent after May 7, 2013, she continued to be under his medical care in the hospice program for the next several months. Startingon or about May '13, 2013, Respondent prescribed 10 milligram tablets of hydrocodone, 0.5 milligram tablets of lorazepam, and 20 milligram tablets of morphine to Patient A. These medications were ?lled by Advance Care Pharmacy while she remained in hospice care. Patient A was also treated with medication and care at Respondent?s direction. 15. In July 2014, Patient A underwent an independent and mental capacity assessment, but not at the request or direction of Respondent. The found that Patient A was capable of decision making with regards to her health, ?nances, estate planning, and her last will and testament. According to this assessment, Patient A was ?mctioning at a high level of cognitive ability given her age. I 16. Patient A lived for approximately three more years after she was placed in the local hospice program pursuant to Respondent?s diagnoses of dementia and failure to thrive. Patient A ultimately passed away in June 2016 from complications of skin cancer treatment. amends. I 17. Respondent ?rst saw Patient B5 on or about March 3 1 2008. At the time of this initial visit, Patient was a 42-year-old woman with multiple medical conditions including breast cancer, carpal tunnel epilepsy, scoliosis, chronic lower back-pain, and leg surgeries. She also had an extensive history including depression, generalized anxiety, schizophrenia, and bipolar disorder. Patient was in a drug detoxi?cation program in 2009 for 5 The patient herein is referred to as Patient to protect her privacy. G6 (MICHAEL S. MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249 LA) 10 11 12 -13'28 oxycodone abuse. Patient started seeing Respondent for primary care and pain management in 2008. She continued as a patient under Respondent?s care until her death on January 12,2012. 18. During this period of time, Respondent routinely prescribed to Patient a Fentanyl 'transdermal patch6 at 50 micrograms per hour for chronic pain. The dosage of the Fentanyl . transderrnal patch was eventually increased to 75 micrograms per hour in 2010. While Respondent was prescribing the Fentanyl transdermal patch to Patient B, she was also receiving prescriptions for benzodiazepines7 from her mental health and neurology providers on a regular basis. Respondent was aware of Patient B?s use of benzodiazepine and he continued to prescribe the Fentanyl transdermal patch to Patient through January 2012, thereby increasing her risk for accidental overdose to the combination of the drugs. Respondent did not utilize a less potent or shorter acting opiate medication during this period of time. 19. Between March 2008 and January 2012, Respondent did not utilize a multidisciplinary approach to managing Patient B?s chronic pain. Respondent did not utilize nonsteroidal anti-in?ammatory drugs (N SAIDs), tricyclics, muscle relaxants, yoga, or physical therapy as alternatives to reduce the potential for Patient B?s dependency on opiates. Similarly, Respondent did not refer Patient for cognitive behavioral therapy as part of the pain management protocOl. I I 20. Patient B?s last documented clinical visit with the Respondent took place on March -8, 2011. However, Respondent continued to prescribe the Fentanyl transdermal patch to Patient over the following nine-month period. Patient received her last Fentanyl patch prescription 6 A Fentanyl transdermal patch, commonly sold under the brand name ?Duragesic,? is a high potency and long acting drug that is used to help relieve severe ongoing pain for patients. Fentanyl is classi?ed as a Schedule II substance under the Controlled Substance Act and is known for its high potential for abuse, with use potentially leading to severe or physical dependence. Fentanyl belongs to a class of drugs known as opioid (narcotic) analgesics. It works in the human brain to change how the body feels and responds to pain. Fentanyl may be habit forming, especially with prolonged use. 7 Benzodiazepines are a class of drugs that enhance the effect of the neurotranSmitter gamma-aminobutyric acid (GABA) at the GABA receptor, resulting in sedative, hypnotic (sleep- inducing), anxiolytic (anti-anxiety), anticonvulsant, and muscle relaxant properties. Benzodiazapeines are classified as a Schedule IV substance under the Controlled Substance Act. When combined with other central nervous system (CNS) depressants such as alcoholic drinks and opioids, the potential for toxicity and fatal overdose increases for the patient. 7 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249 L3prior to her death on January 12, 2012. Respondent?s medical records do not note any visits or consultations with Patient after March 8, 2011. 21. Respondent?s medical records for Patient failed to properly document her elevated opioid risks including her history of depression, schizophrenia, bipolar disorder, and past abuse. In fact, Respondent?s medical records for Patient Were de?cient in detailing the intensity pain scale, the potential'side effects of the opiate8 medications, the functional goals of pain management, and urine drug testing results. Moreover, Patient continued 'to experience chronic pain despite notations in the medical record that she had no musculoskeletal pain. 22. Patient was found unresponsive in her mother?s home on January 12, 2012. Patient Was pronounced dead at approximately 8:25 am. Patient was wearing a Fentanyl transdermal patch when examined by the Riverside County Sheriff-Coroner?s Of?ce. Toxicology testing was conducted which con?rmed the presence of Fentanyl in Patient B?s system at the time of her death. Patient B?s cause of death was subsequently identi?ed'as Acute Fentanyl Intoxication by the Riverside County Sheriff-Coroner?s Qf?ce. - STANDARD OF CARE 23. Diagnosis of Dementia. The community standard of care in medical practice in the State of California is to use cognitive testing to screen and diagnose dementia illnesses in a patient. A physician must utilize one of several reliable tests such as the Mini-Mental Status Exam (MMSE), the Cognitive Abilities Screening Instrument (CASI), or the Montreal Cognitive Assessment (MOCA). Furthermore, a physician should consider ordering brain scans and laboratory testing to exclude reversible causes of dementia. When diagnosis is not clear based upon the screening tests, laboratory testing, and brain scans, then a physician should refer the patient for in-depth testing administered by a 8 Opioids are narcotic medications that act on opioid receptors in the human body to produce morphine?like effects. These drugs are primarily used for pain relief. Side effects of Opioids may include itchiness, sedation, nausea, respiratory depression, constipation, and euphoria. Tolerance and dependence will develop with continuous use of opiates, requiring increasing doses and leading to a withdrawal upon abrupt discontinuation. The euphoria attracts recreational use and frequent, escalating recreational use of Opioids typically results in addiction. An overdose or concurrent use with other . depressant drugs commonly results in death from respiratory depression. 8 (MICHAEL s. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 300-2015-014249 43MB24. Diagnosis of Failure to Thrive. The community standard of care in medical practice in the State of California is to conduct a physical examination of the patient, as well as a detailed history focused on timing and of frailty, disability, and impairment before making the diagnosis of failure to thrive. A physician must-explore other factors related to weight loss and feeding such as diarrhea, and nausea. Nutritional supplements and/or a speech therapy evaluation can be done to asses for any swallowing pathology that-can be corrected. The physician?s physical examination should assess the patient?s living situation and his/her functional ability to perform activities of daily living, which mayolater require a social worker visit to the patient?s home. Physical and occupational therapy can be offered to improve the patient?s functional impairments. Moreover, a physician should conduct a mental status exam or geriatric depression scale to evaluate for dementia or depression, which are often a part of failure to thrive If appropriate, a physician can prescribe anti-depressants and anti- dementia medications along with Finally, limited laboratory testing and radiologic imaging should be done to exclude any chronic illnesses and cancer diagnoses. 25. Eligibility for Hospice Care. The community standard of care in medical practice in the State of California is to offer hospice care to terminally ill cancer patients who are suffering from cancer pains and are not expected to survive more than six months. However, hospice care can also be offered to patients with declining functionality who are suffering from end stage non- cancerous diagnoses such as heart failure, chronic obstructive pulmonary disease, cirrhosis, renal failure, dementia, and geriatric failure to thrive. Ultimately, hospice is appropriate for patients that are entering the last weeks to months of life when the patient and their families decide to forego further life-prolonging therapies or treatments. 26. Monitoring and Reassessment of Chronic Opiate Pain Management. The community standard of care in medical practice in the State of California is to monitor a patient?s progress while using opioid medication for both benefit and harm, including the patient?s level of pain, function, analgesia, activities of daily living, quality of life, adverse side effects, and aberrant behaviors. The patient?s risk of drug addiction and aberrancy should also be assessed to mitigate potentially adverse consequences of opiate therapy. This involves performing a 9 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015?014249 revaluation assessing risks of addictive behaviors, and referral to a if warranted, for ongoing treatment, as well as monitoring with regular urine drug testing and . consultations with the state prescription drug' monitoring program. A patient whose pain is adequately?contrOIled at a safe dosage of iopiate therapy must be monitored on a regular basis every one to three months by her physician in order to determine if the pain medication is meeting the patient?s goals of improved pain and functional status. - 27. Concurrent Prescriptions. for Benz?odia'zepine and Opiate Medications. The community standard of care in medical practice in the State of California is for physicians to strongly avoid prescribing both narcotic and benzodiazepine medications to a patient because the risks to the patient outweigh the bene?ts. Benzodiazepine and opiate medications both cause central nervous system depression and can decrease respiratory drive. Concurrent use of both medications by a patient likely places the patient at greater risk for a potentially-fatal overdose. When confronted, with a patient on both medications, a physician should taper the patient off of the opiate medication ?rst unless the patient would prefer to continue opiate therapy, in which case the physician must taper off the benzodiazepine medication. A physician should also consult "with staff for cognitive behavior therapy. 28.- Proper Maintenance of Medical Records. The community standard of care in medical practice in the State of California is for a physician to maintain accurate and adequate medical records. A physician treating a patient who is prescribed opiate medications should maintain a medical record that includes dbcumentation of medical history, results of pliysical examination, and all the necessary laboratory and radiologic tests. Discussion of patient consent for using controlled substances and pain management agreements should also be included in the medical record. A physician?s medical record for a patient should re?ect all treatment provided, including all medications prescribed and any consultations. The results of ongoing monitoring of patient progress. or lack of progress in pain management, including urine drug testing, and functional improvement should be documented by the physician, as well as steps taken in response to any aberrant behaviors in opiate usage. . Ill 10 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249 Locoqoxuiszx FIRST FOR DISQIME (Repeated Negligent Acts) 29. Respondent?s license is subject to disciplinary action under Section 223.4, subdivision of the Code, in that Respondent committed repeated negligent acts during his care and i treatment of Patients Aaand B. The circumstances are as follows: 30. Complainant refers to and, by this reference, incorporates paragraphs 8 through 28 above, as though fully set forth herein. 31. The following acts and omissions; considered individually and collectively, constitute repeated negligent acts in Respondent?s practice as a physician and surgeon: A. Failing to perform a formal and complete cognitive assessment of Patient A?s functional capacity to screen for and adequately support Respondent?s diagnosis of dementia. B. Diagnosing Patient A with failure to thrive despite laboratory ?ndings and observations that did not support Respondent?s diagnosis, as well as failing to explore other causes for Patient A?s below normal body mass index. C. Accepting Patient A into the hospice program when there were no signs or of end state dementia or geriatric failure to thrive, i D. Lack of proper monitoring and reassessment of Patient B?s chronic opiate pain management, including opioid risk and clinical pain, while prescribing a Fentanyl transdermal patch. E. Prescribing an opiate medication to Patient who was concurrently using a benzodiazepine medication prescribed by her other health care providers. . F. Failing to maintain adequate and accurate medical records with regards to the care and treatment provided to Patient B. SECOND CAUSE FOR DISCIPLINE I (Inadequate and/or Inaccurate Medical Record Keeping) 32. By reason of the facts set forth in paragraphs 17 thrOugh 22 above, Respondent?s license is'further subject to disciplinary action under Section 2266 of the code, in that I 11 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249 Respondent failed to maintain adequate and accurate records relating to his provision of services to Patient B. . 33. Respondent?s acts and/or omissions as set forth in paragraphs 17 through 22 above, whether proven individually, jointly, or in any combination thereof, constitute Respondent?s failure to maintain adequate and accurate records relating to his provision of services to Patient B, pursuant to Section 2266 of the Code. THIRD CAUSE FOR DISCIPLINE (Unprofessional Conduct) 34. By reason of the facts set forth in paragraph 8 through 28 above, Respondent is . subject to disciplinary action under Section 2234, subdivision of the Code, in that Respondent has engaged-in unprofessional conduct based upon repeated negligent acts in the care and treatment of Patients A and B, and his failure to maintain adequate or accurate medical records concerning the care and treatment of Patient B. 35. Respondent?s acts and/or omissions 'as set forth in paragraphs 8 through 28 above, whether proven individually, jointly, or in any combination thereof, constitute Respondent?s unprofessional conduct based upon repeated negligent acts in the care and treatment of Patients A and B, and his failure to maintain adequate or accurate medical records concerning the care and treatment of Patient B, pursuant to Section 2234, subdivision of the Code. . 12 (MICHAEL S. MD.) FIRST AMENDED ACCUSATION NO. 800-2015-0?14249 LON \_16 2-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 62314 issued to Michael S. Basch,lM.D.; 2. Revolzing, suspending or denying apprOval of his authority to supervise physician assistants pursuant to Section 3527 of the Code, and advanced practice nurses; 3. If placed, on probation, ordering Michael S. Basch, MD. to pay the Board the costs of probation monitoring; and I 4. Taking such other and further action as deemed necessary and proper. DATED: Odd?: moot? ML BERLY KIRCHMEYE Executive Director Medical Board of California Department of Consumer Affairs State of California Complainant LA2018600590 53108400.docx 1 3 (MICHAEL S. BASCH, MD.) FIRST AMENDED ACCUSATION NO. 800-2015-014249