Gerson Sternstein v. Connecticut Medical Examining Board et al. (2013)

MEMORANDUM OF DECISION

The plaintiff, Gerson Sternstein, brings this administrative appeal against the defendant medical examining board (the board).¹  The board, in a September 20, 2011 final decision, revoked the plaintiff's license to practice medicine pursuant to § 20–13c(4) and imposed a civil penalty pursuant to § 19a–17(a)(6).

The department of public health (the department) filed its charges ² against the plaintiff on August 10, 2010, and the board issued a summary suspension of the plaintiff's license, pursuant to § 4–182(c), on August 17, 2010.   The plaintiff was provided a hearing on the charges before a panel of the board;  and that panel subsequently issued a proposed final decision.   The final decision, as approved by the board on September 20, 2011, made the following findings of fact:

1. Respondent [the plaintiff herein] is the holder of Connecticut physician and surgeon license number 022391.

2. At all relevant times, respondent practiced psychiatry as a member of Paragon Behavioral Health.

3. Respondent provided care to K.R. from January 2006 through September 2009.   K.R. entered respondent's practice seeking pain medication.   K.R. was diagnosed with depression, anxiety, hepatitis C, head injury, cervical neck pain and right knee pain.   K.R. had a history of substance abuse.

4. Respondent prescribed K.R. increasingly high doses of oxycodone without addressing tolerance and potential lethal toxicity.   Respondent's written record for K.R. is below the standard of care as its notations are barely legible, extremely brief and there are no objective assessments noted.   Respondent prescribed an inappropriate combination of drugs and a dangerous combination of drugs to K.R. Respondent prescribed an excessive amount of opioids (oxycodone) to K.R. Respondent failed to inform, or adequately inform K.R. of risks inherent to his prescribed controlled substance intake.   Respondent initiated, continued and/or increased dosing of opioids in spite of clear signs of abuse or criminal behavior by the patient relating to the prescriptions.   Respondent practiced below the standard of care in prescribing controlled substances because the plan of care was completely based upon patient self report and it occurred without an examination of the patient by respondent.   Respondent practiced below the standard of care when he prescribed K.R. controlled substances without an assessment that demonstrated objective evidence for the need to prescribe controlled substances.   With respect to patient K.R., respondent failed to coordinate the prescribing of controlled substances with other providers.   Respondent failed to inform K.R. of the risks inherent in his taking of the controlled substances that were prescribed to him by respondent.

5. Respondent provided care to T.P. from August 2008 through June 2009.   T.P. entered respondent's practice seeking Suboxone for opiate dependence and pain medication.   T.P. had a history of polysubstance abuse and treatment with prescription opiate medication.   Respondent's written record for T.P. is below the standard of care as its notations are barely legible, extremely brief and they do not indicate a physical exam and rarely a mental status exam or an observation of the patient's condition and behavior.   Respondent failed to adequately assess patient T.P. Respondent prescribed an inappropriate combination of drugs and a dangerous combination of drugs to T.P. Respondent prescribed an excessive amount of opioids to T.P. Respondent practiced below the standard of care in prescribing controlled substances because the plan of care was almost exclusively based upon patient self report and it occurred without an examination of the patient by respondent.   With respect to patient T.P., respondent failed to coordinate the prescribing of controlled substances with other providers, including the patient's dentist.

6. Respondent prescribed T.P. high doses of opioids and Suboxone without addressing tolerance and potential lethal toxicity or documenting the need for the medication.   Respondent also prescribed T.P. a benzodiazepine without any documented reason.

7. Respondent provided care to R.O. from January 2007 through May 2009.   R.O. entered respondent's practice seeking to ease back and neck pain.   R.O. had Major Depression and Pain Disorder with Psychological factors.   R.O. had a history of drug and alcohol addiction.

8. Respondent prescribed R.O. excessively high doses of opioid medication that R.O. used in combination with antidepressants.   Respondent prescribed medication without addressing R.O.'s tolerance or potential lethal toxicity.   In May of 2007, respondent prescribed Oxycontin and Percocet to R.O. without seeing and/or examining the patient.   Respondent's patient records for R.O. were inadequate as they lacked detail and did not contain objective evidence for a need for the high doses of Schedule II medicine prescribed by respondent.   The clinical notes for patient R.O. are barely legible, extremely brief, and do not indicate a physical exam and rarely a mental status exam or an observation of the patient's condition and behavior.   The assessment of patient R.O. was inadequate and below the standard of care as there is no evidence in R.O.'s record that a response to treatment is assessed through standard measures used to monitor the response of the chronic pain to the treatment.   Respondent initiated, continued and/or increased dosing of opioids to R.O. despite the fact that the patient had a history of drug and alcohol addiction and despite the fact that the urine drugs screens for R.O. indicated that the patient was also using other opiates that were not prescribed by the respondent.   This conduct is below the standard of care for physicians in Connecticut.

9. Respondent provided care to P.P. from February 2002 through September 2009.   When P.P. entered respondent's practice, she sought help for addiction and admitted to using heroin, cocaine, crack, and prescription opioids.   P.P. had Opiate Dependence, cervical disc disease, traumatic injury and Chronic Obstructive Pulmonary Disease.

10. Respondent prescribed P.P. excessively high doses of opioid medication in combination with other addictive medications without addressing tolerance and potential lethal toxicity.   The clinical notes for patient P.P. are barely legible, extremely brief, and do not indicate a physical exam and rarely a mental status exam or an observation of the patient's condition and behavior.   The assessment of patient P.P. was inadequate and below the standard of care as there is no evidence in the P.P.'s record that a response to treatment is assessed through standard measures used to monitor the response of the chronic pain to the treatment.   Respondent failed to inform this patient of the risks inherent in the prescribed controlled substances.   Respondent failed to coordinate prescribing with P.P.'s other providers.   Respondent initiated, continued and/or increased dosing of opioids to P.P. despite the fact that the patient had a history of drug and alcohol addiction and despite the fact that the patient was using cocaine.

11. Respondent provided care to M.D. from January 2002 through September 2009.   M.D. entered respondent's practice seeking help for depression and arm and neck pain.   M.D. had a history of polysubstance abuse and treatment with prescription opiate medication.

12. Respondent prescribed M.D. excessively high doses of opioid medication without addressing tolerance and potential lethal toxicity.   Respondent's documentation and treatment were inadequate in that there were no objective assessments noted in the record, and the plan of care was only based upon the patient's self report.   In addition, the documentation lacked sufficient detail and the notes were barely legible, extremely brief and do not indicate a physical exam and rarely a mental status exam or an observation of the patient's condition and behavior.   Risks, benefits and the alternatives to treatment were not explained to M.D. Respondent initiated, continued and/or increased dosing of opioids to M.D. despite the fact that the patient had a history of drug and alcohol addiction and despite the fact that the urine drugs screens for M.D. indicated that the patient was also using other opiates that were not prescribed by respondent.

13. Respondent provided care to D.T–W. from January 2008 through September 2009.   D.T–W. entered respondent's practice seeking to ease back pain and lack of sleep.   D.T–W.'s urine toxicology screens revealed the presence of cocaine and methadone, but no Suboxone.   The patient's medical record indicated that she was crushing and snorting 70–120 mg of Percocet per day.   The records for D.T–W. are inadequate in that there are no notes of physical examinations and very few objective observations.   Respondent practiced below the standard of care for patient D.T–W. in that he prescribed controlled substances for this patient despite clear evidence that this patient was engaged in criminal activity and/or abusive behavior with respect to the prescriptions and other drugs.

14. Respondent prescribed D.T.-W. a combination of opioids and Suboxone without addressing tolerance and potential lethal toxicity.   The patient records are inadequate in that they are barely legible, extremely brief and do not indicate a physical exam and rarely a mental status exam or an observation of the patient's condition and behavior.   Respondent failed to inform the patient of risks inherent in the prescribed controlled substances.   Respondent prescribed a dangerous and or inappropriate combination of drugs in that he prescribed Suboxone to this patient despite the fact that the patient is dependent on opiate agorrists.   It is below the standard of care to prescribe opiates with Suboxone as drug interactions are a risk, and it lowers the effectiveness of both drugs.   Also, serious withdrawal symptoms can emerge as well as an increased risk of opiate abuse if these drugs are combined in this manner.

15. Respondent provided care to L.W. from July 2002 through February 2009.   L.W. entered respondent's practice seeking to ease severe pain.   L.W. had a history of depression and schizoaffective disorder, as well as multiple medical conditions.

16. Respondent prescribed L.W. excessively high doses of opioid medication in combination with other addictive medications without addressing tolerance and potential lethal toxicity.   The documentation for patient L.W. was inadequate as there are no objective assessments noted, the plan of care is based only on the patient's self report and the records lacked sufficient detail.   Respondent failure to communicate with the patient's dentist who may have been prescribing pain medication as well was below the standard of care for physicians in Connecticut.   Respondent prescribed a dangerous and inappropriate combination of drugs for L.W. during August of 2008 and January of 2009.   Respondent also failed to appropriately and adequately assess the patient during treatment.

17. Respondent provided care to K.O'C. from June 2000 through June 2009.   K.O. entered respondent's practice seeking to ease pain and was in treatment for depression and anxiety.   K.O. had a history of drug and alcohol addiction.   The patient's records also indicated that there was narcotic analgesic abuse evident and that the patient had engaged in drug seeking behavior for Vicodin.   Respondent prescribed excessive doses of drugs to this patient despite the fact that the patient's orthopedic evaluation did not find objective evidence to support the patient's report of debilitating pain.   On January 15, 2007, respondent prescribed “Oxycontin 80 mg., 17 tablets per day, # 240 total tablets, Xanax 1 mg., 4 tablets per day and # 60 tablets, with 2 refills, and 40mg.   Oxycontin, 8 tablets per day and # 120 tablets.”   The Board finds that these prescriptions at these doses in one visit without any objective evidence is a violation of the standard of care.   Respondent imitated, continued and/or increased dosing of opioids to K.O'C. despite the fact that the patient had a history of drug and alcohol addiction and despite the fact that the urine drugs screens for K.O'C. indicated that the patient was also using other drugs that were not prescribed by respondent.

18. Respondent prescribed K.O'C. excessively high doses of opioid medication in combination with other addictive medications without addressing tolerance and potential lethal toxicity.   The clinical notes for this patient are inadequate in that they are barely legible, extremely brief, and do not indicate a patient's condition and behavior.

19. Respondent provided care to P.B. from October 2001 through November 2008.   P.B. entered respondent's practice for insurance purposes and wanted to continue on her then-current medication regimen.   P.B. was taking pain medication and psychotropic medication for depression and anxiety.

20. As early as March 2003, P.B. was documented by New Britain General Hospital for abusing prescription medication.

21. Respondent prescribed P.B. excessively high doses of opioid medication in combination with other addictive medications without addressing tolerance and potential lethal toxicity.   Respondent prescribed an inappropriate combination of drugs to P.B. The Board agrees with Dr. Ducate's assessment that the “practice of prescribing massive doses of Schedule II controlled substances, as well as other sedating medication is well below the community standard of care, especially with [the patient's] history of hospitalizations due to opioid toxicity and her history of unreliable reporting of her medication use.”   The clinical notes for this patient are inadequate in that they are barely legible, extremely brief, and do not indicate a physical exam and rarely a mental status exam or an observation of the patient's condition and behavior.   Respondent made inadequate examinations and assessments.   Respondent failed to inform this patient of the risks inherent in the prescribed controlled substances.   Respondent initiated, continued and/or increased dosing of controlled substances despite clear evidence that the patient was misusing and abusing the medication.

22. In January 2009, P.B. died due to opiate toxicity.

23. Respondent provided care to S.B. from September 2001 through September 2009.   S.B. entered respondent's practice for depression, sleep and pain problems.   S.B. had a history of drug abuse that discontinued in 1977, Hepatitis B, Hepatitis C, chronic narcotic addiction, hypertension and depression.

24. Respondent prescribed S.B. excessively high doses of opioid medication in combination with other addictive and sedative medications without addressing tolerance and potential lethal toxicity.   The clinical notes for this patient are inadequate in that they are barely legible, extremely brief, and do not indicate a physical exam and rarely a mental status exam or an observation of the patient's condition and behavior.   Respondent failed to inform the patient of risks inherent in the prescribed controlled substances.   Respondent initiated, continued and/or increased dosing of controlled substances despite clear evidence that the patient was misusing and abusing the medication and despite evidence that the patient was addicted to controlled substances.

25. In February 2009, S.B. died due to hypertrophic dilated cardiomyopathy.   The toxicology report revealed the presence of prescribed medication.

26. Generally, and as specifically noted throughout this Memorandum of Decision, respondent's documentation was inadequate.   Respondent's clinical notes were illegible and he failed to document medical justification or objective observations for his elected plan of treatment for each patient.

27. Generally, and as specifically noted throughout this Memorandum of Decision, respondent made inadequate examinations and/or assessments initially and/or at appropriate interim intervals.

28. Generally, and as specifically noted throughout this Memorandum of Decision, respondent failed to monitor his patients' response to treatment and/or compliance with medication regimens, or monitored inadequately.

29. Generally, and as specifically noted throughout this Memorandum of Decision, respondent initiated and/or continued prescriptions of controlled substances in spite of contraindicating laboratory studies.

30. Generally, and as specifically noted throughout this Memorandum of Decision, respondent failed to inform, or adequately inform, patient(s) of risks inherent in the prescribed controlled substances.   There is no evidence in the ten patient records which demonstrates that respondent informed patients of the risks inherent in the controlled substances he was prescribing.

31. Generally, and as specifically noted throughout this Memorandum of Decision, respondent prescribed dangerous combinations of drugs.

32. Generally, and as specifically noted throughout this Memorandum of Decision, respondent prescribed inappropriate combinations of drugs.

33. Generally, and as specifically noted throughout this Memorandum of Decision, respondent initiated, continued, and/or increased dosing of opioids in spite of signs of abuse or criminal behavior by patients relating to the prescriptions.

34. Generally, and as specifically noted throughout this Memorandum of Decision, respondent failed to coordinate prescribing with other providers, including, but not limited to dentists, orthopedists, and primary care physicians.

35. Dr. Sternstein's testimony is wholly unreliable and not credible.

36. Dr. Ducate's written opinions and oral testimony are reliable and credible.  (Return of record, ROR, Volume I, pp. 5–11.)

The board declared that the charges had been proven by the department under the preponderance of evidence standard of Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 820–21, 955 A.2d 15 (2008).   The board continued:

“Although the burden of proof is a preponderance of evidence, the Board finds that the Department provided overwhelming credible evidence that respondent practiced medicine significantly below the standard of care for physicians in Connecticut.   The respondent's testimony was not reliable or credible, and specifically it was not reliable or credible regarding his explanations for his treatment and prescribing of controlled substances to his patients.   The Department presented reliable and credible evidence that clearly demonstrated that respondent's treatment of his patients, as more fully described below, was significantly below the standard of care for physicians in Connecticut.   The Board agrees with Dr. Ducate's opinion that there is “a clear pattern of substandard medical care provided by Dr. Gerson Sternstein that is grossly below ” the standard of care.  (Emphasis added.)

“After reviewing all of the evidence in this matter, the Board finds that respondent poses a serious threat in his practice of medicine to the health and safety of his patients.   The Board finds that respondent's practice of medicine is far below the standard of care and is dangerous.   Respondent's conduct, as described in this Memorandum of Decision, constitutes illegal, incompetent or negligent conduct in the practice of medicine in violation of Conn. Gen.Stat. § 20–13c(4).”  (ROR, Volume I, p. 12.)   The board ordered the plaintiff's license to practice as a physician and surgeon in Connecticut revoked, and assessed a $5,000 civil penalty in each of the ten cases, as set forth in the factual findings, for a total of $50,000. § 19a–17(a)(6).  (ROR, Volume I, p. 20–21.)

This appeal followed.   The plaintiff's appeal, arising from the discipline assessed under § 20–13c(4) and § 19a–17(a)(6), is reviewed under the following standard, as set forth in another case involving a physician.  “Where a party appeals pursuant to the jurisdictional grant of the [Uniform Administrative Procedure Act, UAPA], the agency action is measured by the standards contained within the UAPA ․ We, therefore, review the merits of the defendants' claims in the context of the limited scope of judicial review afforded by the UAPA to determinations made by an administrative agency ․ With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency ․ Judicial review of the conclusions of law reached administratively is also limited.   The court's ultimate duty is only to decide whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.”  (Brackets omitted, citations omitted, internal quotation marks omitted.)  Pet v. Dept. of Health Services, 228 Conn. 651, 660–61, 638 A.2d 6 (1994).   See also Jones v. Connecticut Medical Examining Board, 129 Conn.App. 575, 581 (2011) (citing § 4–183(1)), affirmed, 309 Conn. 727 (2013) (also an appeal by a physician from board discipline).

The plaintiff's first claim, as set forth in the briefs of the parties in this court, concerned the standard of proof that the department had to meet before the board.   The plaintiff contended that the board erred in rejecting a “clear and convincing evidence” standard, while the board argued that it correctly placed the burden of a “preponderance of evidence” standard of the UAPA on the department (ROR, Volume I, p. 12).   On November 9, 2012, the court issued a stay of proceedings in this appeal to await the determination of this issue by our Supreme Court in an appeal from the Appellate Court's decision in Jones v. Connecticut Medical Examining Board, supra, 129 Conn.App. 575.   The Supreme Court has recently affirmed the Appellate and Superior Courts' rulings in Jones, holding that the Goldstar-preponderance standard was appropriately adopted by the board.   309 Conn. 727 (2013).   Therefore the issue as raised by the plaintiff in this case has been resolved in the board's favor.

The plaintiff secondly contends that the panel of the board hearing his case erred by failing to decide his case by December 11, 2010 and twice extending a statutorily established deadline for the issuance of its proposed final decision.   The plaintiff relies on § 20–8a(g) stating that the time period for filing such proposed final decision with the full board was not later than one hundred twenty days after the receipt of the issuance of the notice of hearing by the board.   The proposed decision was issued on July 28, 2011.   The court rejects this contention, because the plaintiff had a statutory remedy in § 4–180(b) which allows an application to the Superior Court for an order requiring an agency to render a final decision.   The failure of the plaintiff to utilize this remedy constitutes a waiver of the plaintiff's claim.   See Pet v. Dept. of Health Services, supra, 228 Conn. 674.

In addition, not all procedural lapses by an agency are grounds for reversal.  Jones v. Connecticut Medical Examining Board, supra, 129 Conn.App. 581.   There must be a showing of prejudice that the plaintiff has not adequately detailed here.   See Pet v. Dept. of Health Services, supra, 663–64.   Finally, the court concludes that the deadline in this case is directory and not mandatory.  “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ․ If it is a matter of substance, the statutory provision is mandatory.   If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.”  Williams v. Commissioner of Human Rights & Opportunities, 257 Conn. 258, 268, 777 A.2d 645 (2001).   In addition, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provision, the statute or regulation should be construed as directory.   See, e.g., Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 446, 685 A.2d 670 (1996).   The plaintiff's claim thus fails because the panel of the board, at most, has violated a directory provision.

Here, under the above precedent, the statutory deadlines are clearly directory to insure the dispatch of the decision, and the plaintiff's claim otherwise should be rejected.

The final argument made by the plaintiff is that materials submitted by the department to the board for its use in summarily suspending the plaintiff were inaccurate and misleading.³  The plaintiff further claims that the expert physician (Ducate) that was called by the department before the board “consciously or unconsciously” relied on such evidence in the “summary suspension” packet.

The court disagrees with the plaintiff for two reasons.   First, the summary suspension procedure is not under review here.   The plaintiff received a full hearing subsequent to his summary suspension that allowed him to rebut any inaccuracies arising in the summary suspension.   An attack on the summary suspension evidence is therefore moot.   See Moraski v. Connecticut Board of Examiners, 291 Conn. 242, 256–57, 967 A.2d 1199 (2009).

Secondly, regarding the department's expert, the panel of the board had the discretion to decide what evidence to believe or reject.   See Spitz v. Board of Examiners of Psychologists, 127 Conn.App. 108, 123–24, 12 A.3d 1080 (2011) (hearing panel may accept one side's theory of the evidence and reject the other's);  Gonzales v. Elections Enforcement Commission, 145 Conn.App. 458 (2013) (reversing superior court for finding lack of substantial evidence of two violations alleged by agency).   Here, as the board has pointed out at page 18 of its brief, the evidence was strong that the plaintiff had not met the standard of care required by a Connecticut physician.   See also the finding of facts re-stated above.   The board had the discretion to conclude that the department's expert was reliable and not affected by what she had read in the summary suspension materials.⁴

Therefore the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. The plaintiff is aggrieved due to the orders of the board.   General Statutes § 4–183(a).   The plaintiff also named the Department of Public Health (the department) as a defendant.   The department is not an appropriate defendant, see § 19a–14, Fuentes v. Connecticut Medical Examining Board, Superior Court, judicial district of Hartford–New Britain, Docket No. CV 95–0552780 (October 23, 1995), as it has a prosecutorial role here and is not the decision-maker.   The contention of the plaintiff that the board relied on false evidence from the department does not sufficiently involve the department in the appeal.   Correctly, the department's attorney has filed a brief stating that it joins in the board's position on the merits..  FN1. The plaintiff is aggrieved due to the orders of the board.   General Statutes § 4–183(a).   The plaintiff also named the Department of Public Health (the department) as a defendant.   The department is not an appropriate defendant, see § 19a–14, Fuentes v. Connecticut Medical Examining Board, Superior Court, judicial district of Hartford–New Britain, Docket No. CV 95–0552780 (October 23, 1995), as it has a prosecutorial role here and is not the decision-maker.   The contention of the plaintiff that the board relied on false evidence from the department does not sufficiently involve the department in the appeal.   Correctly, the department's attorney has filed a brief stating that it joins in the board's position on the merits.

FN2. The charges against the plaintiff included (1) that he kept inadequate documentation, (2) that he provided patients with inadequate examinations, (3) that he failed to review medical regimes of his patients, (4) that he prescribed controlled substances, even though laboratory reports showed that these prescriptions were counter-indicated, (5) that he did not keep his patients adequately informed of his treatment plans, and (6) that he failed to coordinate his treatments with other health care professionals.  (Return of record, ROR, Volume I, pp. 4–5.).  FN2. The charges against the plaintiff included (1) that he kept inadequate documentation, (2) that he provided patients with inadequate examinations, (3) that he failed to review medical regimes of his patients, (4) that he prescribed controlled substances, even though laboratory reports showed that these prescriptions were counter-indicated, (5) that he did not keep his patients adequately informed of his treatment plans, and (6) that he failed to coordinate his treatments with other health care professionals.  (Return of record, ROR, Volume I, pp. 4–5.)

FN3. The summary suspension package had statements from the Department of Consumer Protection (DCP) that stated that the plaintiff had in 1988 surrendered his state and federal license to dispense Schedule II medication.   The plaintiff denies this as false.   The plaintiff also criticizes the DCP for alleging that he was a rogue “pill dispenser,” but the JCP had not accurately reported the nature of Connecticut's “Pill Monitoring Program.”.  FN3. The summary suspension package had statements from the Department of Consumer Protection (DCP) that stated that the plaintiff had in 1988 surrendered his state and federal license to dispense Schedule II medication.   The plaintiff denies this as false.   The plaintiff also criticizes the DCP for alleging that he was a rogue “pill dispenser,” but the JCP had not accurately reported the nature of Connecticut's “Pill Monitoring Program.”

FN4. The board was aware of this argument by the plaintiff at the time of its decision and rejected it.  (ROR, Volume 1, pp. 29–38.).  FN4. The board was aware of this argument by the plaintiff at the time of its decision and rejected it.  (ROR, Volume 1, pp. 29–38.)

Cohn, Henry S., J.