In October 2007, the Medical Board of California upheld charges of incompetence, gross and repeated negligence, unprofessional conduct, and violating a previous probationary order. The board’s decision (shown below) includes the following details:
- In 1999, after concluding that he had engaged in inappropriate sexual conduct with a 15-year-old male patient, the Board placed Schwartz on 10 years’ probation during which he was required to have a third-party chaperone present whenever he examines or treats a male pediatric patient. However, despite repeated warnings, Schwartz did not adhere to this requirement.
- During 2003, in managing four pediatric patients, Schwartz failed to perform adequate evaluations; made unsubstantiated diagnoses that included autism and ADHD; and rendered treatments that were “an extreme departure from the standard of practice.”
Schwartz asked the Los Angeles Superior Court to overturn the revocation but was not successful.
DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA
STATE OF CALIFORNIA
|In the Matter of the Accusation and
Petition to Revoke Probation Against:
ALAN SCHWARTZ, M.D.
Physician and Surgeon’s Certificate No. G 18347
|Case No. DI-1996-69628
OAH No. L2006120857
Filed September 26, 2007
Daniel Juarez, Administrative Law Judge with the Office of Administrative Hearings, heard this matter on August 20, 21, 22, 23, 24, and 27, 2007, in Los Angeles, California.
Gloria L. Castro, Deputy Attorney General, represented David T. Thornton (Complainant), then-Executive Director of the Medical Board of California.
Stuart Goldfarb, Attorney at Law, represented Alan Schwartz, M.D. (Respondent). Respondent was present on each day of hearing.
At the hearing, Complainant amended the Accusation and Petition to Revoke Probation as follows: on page five, line four, the paragraph number “7” was deleted and replaced with paragraph number “7.5” (the text was not amended). On page five, line five, the word and number, “paragraph 6” was deleted and replaced with “paragraph 7.” On page six, lines two through three, the sentence that begins with the word “Respondent” and ends with the parenthetical, “(lead poisoning)” was deleted. On page seven, lines seven through eight, the sentence that begins with the word, “Respondent” and ends with the word, “plumbism” was deleted. On page eight, lines 12 through 14, the sentence that begins with the word, “Further” and ends with the initial “e” was deleted. On page nine, lines five through six, the sentence that begins with the word, “Respondent” and ends with the word, “plumbism” was deleted. On page 11, lines two through four, the paragraph identified by roman number “vi” was deleted and the subsequent paragraph, identified by roman numeral “vii,” was changed to read as roman numeral “vi.”
The parties submitted the matter for decision on August 27, 2007.
1. On April 13, 2006, Complainant, in his official capacity, filed the Accusation
and Petition to Revoke Probation. Respondent signed the Notice of Defense on July 20, 2006. Complainant proceeded without alleging Respondent’s Notice of Defense was untimely. This action then ensued.
The Parties’ Contentions
2. Complainant contends there is cause to revoke Respondent’s on-going probation and impose the stayed discipline, revocation of his medical license, because he violated a probationary condition. Additionally, Complainant contends Respondent’s license is subject to revocation because his alleged violation of probation constitutes unprofessional conduct. (Bus. & Prof. Code, § 2234.) complainant further contends Respondent committed acts of gross negligence (Bus. & Prof. Code, § 2234, subd. (b)), repeated negligent acts (Bus. & Prof. Code, § 2234, subd. (c)), and incompetence (Bus. & Prof. Code, § 2234, subd. (d)) in his care and treatment of four minor patients. Complainant argues Respondent’s actions with regard to the four minor patients provide additional grounds to revoke his medical license.
3. Respondent denies Complainant’s allegations.
Respondent’s Certification and Background
4. The Medical Board of California (the Board) issued Respondent Physician and Surgeon Certificate Number G 18347 on May 21, 1970; it expired on May 31, 2006, unless renewed. The record was not reopened to submit evidence as to whether the license was renewed. However, if it was not renewed, the Board retains jurisdiction over this matter pursuant to Business and Professions Code section 118, subdivision (b).
5, Respondent is a pediatrician. He received his medical degree from the State University of New York Downstate Medical Center in 1968. He completed his internship and one year of residency in pediatrics at the Children’s Hospital of the East Bay in Oakland, California from 1968 to 1970. He completed his residency in pediatrics at the Kaiser Permanente Medical Center in San Francisco, California in 1971. He became a Diplomate of the National Board of Medical Examiners in 1969. He was board certified in pediatrics in 1973. In 1971, Respondent was a member of the United States Army, stationed in Okinawa, Japan. The evidence did not establish Respondent’s exact date of discharge from active duty. From 1973 to 1978, Respondent remained in Japan, working at a U.S. Army hospital as a civilian pediatrician. Thereafter, Respondent returned to the United States, and from 1979 to 1987, continued working as a civilian pediatrician at the Army hospital at Fort Riley in the State of Kansas. From 1982 to 1996, Respondent was a member of the United States Army Reserves. Respondent was an Associate Clinical Professor at the University of Kansas Medical School in Wichita, Kansas from 1982 to 1987. He then moved to California and worked as a pediatrician at the Riverside Medical Clinic in Riverside, California from 1987 to 1998. Respondent was the Chair of the Department of Pediatrics for the Riverside Medical Clinic from 1994 to 1997. In approximately 1999, Respondent became interested and involved in holistic medicine. His interest in holistic medicine grew, and in February 2001, Respondent became the Medical Director and owner of the Holistic Resource Center in Agoura Hills, California where he practices medicine specializing in the practice of alternative medicine. In addition to Respondent, the only California licensed physician there, the Holistic Resource Center houses practitioners of alternative medicine, including, hypnotherapists and acupuncturists, among others.
6. Respondent refers to his practice as the practice of biomedicine. In overly simplistic terms, biomedicine requires the practitioner to uncover biochemical deficiencies in the body, remove harmful biochemical additives, and naturally introduce healthy supplements into the body. Respondent enjoys his work in alternative medicine and, at hearing, displayed an impressive enthusiasm and passion for his biomedical approach to health care.
7. The Board’s then-Executive Director, Ron Joseph, filed an earlier Accusation against Respondent on December 1, 1997; the case was entitled, In the Matter of the Accusation against Alan Schwartz, MD., case number 09-96-69628. After a multiple day administrative hearing, the Administrative Law Judge in that matter concluded that Respondent engaged in sexual misconduct with a minor male patient (Bus. & Prof. Code, § 726), committed acts of gross negligence, (Bus. & Prof. Code, § 2234, subd. (b)), repeatedly departed from the standard of care (Bus. & Prof. Code, § 2234), failed to maintain adequate and accurate records (Bus. & Prof. Code, § 2266), and engaged in general unprofessional conduct. (Bus. & Prof. Code, § 2234.) In his Proposed Decision, the Administrative Law Judge revoked Respondent’s medical license.
8. On December 2, 1998, the Medical Board’s Division of Medical Quality adopted, but modified, the Administrative Law Judge’s Proposed Decision, pursuant to its statutory authority. The Board’s Division of Medical Quality chose to stay the proposed revocation and place Respondent on ten years of probation with various terms and conditions. The terms and conditions of Respondent’s probation included, among other things, a 60-day suspension from the practice of medicine, a requirement that Respondent have a third party present “while examining minor male patients,” a requirement that Respondent’s practice be monitored by another physician who practices in Respondent’s “field of practice” (the monitor was required to submit periodic reports to the Division of Medical Quality), and a requirement that Respondent attend 40 hours per year of a preapproved “educational program or course in patient record-keeping” for every year of probation. The probation order provides that, if “[R]espondent violates probation in any respect, the Division [of Medical Quality], after giving [R]espondent notice and the opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed.” The Decision was effective January 4, 1999.
9. The facts and circumstances underlying the prior discipline were that, in May 1995, Respondent began treating a 15-year-old boy for delays in growth and puberty. Respondent treated the patient for over one year. Then, in October 1996, the boy told Respondent he was concerned that his genitalia were underdeveloped. Respondent examined the boy and measured the boy’s penis. Respondent told the boy the penis was most accurately measured while erect. Respondent then proceeded to stimulate the boy’s penis with an ungloved hand, until it was erect, and continued stimulating the boy until he ejaculated. Respondent did these things while the boy’s father, who had accompanied the boy to Respondent’s office, waited for the boy in another room. Respondent did not document his actions in the patient’s medical file. At the earlier hearing, Respondent argued that his actions were medical and not sexual in nature.
10. At the instant hearing, Respondent continued to deny that he ever had any inappropriate interest in the 15-year-old patient. Respondent asserted that, if confronted with the same situation, he would not measure the boy’s penis nor would he stimulate him.
The Third Party Probationary Requirement
11. On December 4, 1998, Respondent met with the Board’s probation investigator then assigned to Respondent’s case, R.L. Durham. Durham reviewed the terms and conditions of probation with Respondent. Durham documented the following regarding his meeting, “[Respondent] understands that when he resumes the practice of medicine he must have a third party present while examining minor male patients .. [Respondent] asked whether having the parents or guardians of male patients replace a female third person in cases where the male patient objects to a female being in the examination room would be appropriate. I told him if the third party is a parent or guardian the Board would require him to document their name in the patient chart as the third party chaperon.”
1The Board tolled Respondent’s probation from approximately March 1999 to December 1999. 2002.
12. On January 4,1999, Respondent signed a document asserting he had received a copy of the Decision described .in Factual Finding 7, and that the terms and conditions of probation had been explained to him and he understood them.
13. On July 28, 1999, the Board’s probation investigator then assigned to Respondent’s case, R.W. Predmore, went over the terms and conditions of probation with Respondent.
14. As required by the probationary terms, Respondent sought approval of a proposed practice monitor, and in approximately October 2000, the Board approved a Dr. Samuel Catalon as Respondent’s monitor. As required, Catalon wrote periodic reports regarding his monitoring of Respondent’s practice. On August 29, 2002, Catalon sent the Board a report after reviewing Respondent’s patient files for the period of April 2002 to June
Among other things, Catalon noted that Respondent had seen two minor male patients. Catalon also wrote that he “found no evidence of misconduct” and that the “progress notes of the pediatric patients included documentation of the presence of the parent.” Consequently, J. Valdez, the Board’s probation investigator then assigned to Respondent’s case met with Respondent on September 25, 2002, advising Respondent that Catalon’s report noted the presence of a parent and not a third party chaperone for two minor male patients. Respondent explained to Valdez that the previous probation investigator had given him permission to use parents or guardians as third party chaperones. (See Factual Finding 11.) Valdez told Respondent that a parent or guardian was only allowed as a third party when the patient objected to a female chaperone and that no such information was apparent from Catalon’s report or Respondent’s documentation.
15. At a subsequent meeting on October 21, 2002, Valdez and Respondent met again to discuss the need for a third party when Respondent saw minor male patients. Respondent showed Valdez a form entitled, “The Holistic Resource Center Would Like You to Know … ” Respondent explained to Valdez that the form, a form Respondent developed, required parents to always accompany their children while at the Holistic Resource Center. Respondent argued to Valdez that this requirement should satisfy the probationary condition of a third party. The form read in pertinent part, with underlining in the original, “[c]hildren must be supervised at all times and a parent or guardian must be in attendance and supervising/chaperoning the children in both the waiting rooms, hallways and clinic rooms, regardless of whether the child is a client or just accompanying the parent that day. No child will be seen without an appropriate adult chaperone.” Respondent explained that using a third party was expensive and the start-up of the Holistic Resource Center had tapped his financial resources significantly. He also found it difficult that a third party chaperone was not always readily available. Respondent saw using parent chaperones as an efficiency and a way to save his limited resources, while in his view, still protecting the minor male patients.
16. Despite the form and Respondent’s arguments, Valdez told Respondent that a parent as a third party chaperone would not meet the requirements of the probationary condition. On November 13, 2002, Valdez wrote Respondent a letter confirming an earlier telephone conversation. Valdez directed Respondent to “cease and desist from examining minor male patients as of November 6, 2002 at 5:00 p.m.” until a third party is identified and approved.
17. On November 26, 2002, Respondent wrote Valdez a letter asking that the parents of minor children be allowed to chaperone the children during Respondent’s examinations. Respondent wrote the following, “[t]his was originally proposed to allow children of the opposite sex of the chaperone to have parents doing the supervision … and subsequently amended to allow parents to supervise all exams regardless of the child’s sex and without the necessity of having an additional chaperone.” Valdez called Respondent on December 9, 2002 and told him the parents could not act as the third parties. Valdez sent Respondent a second letter, dated December 9, 2002 reiterating that Respondent could not treat or examine minor male patients until a third party chaperone was approved.
18. Respondent finally proposed Pamela Michaels, a hypnotherapist at the Holistic Resource Center to act as his third party chaperone. On January 28, 2003, Valdez approved Michaels as the third party.
19. In 2003, Respondent’s monitor, Dr. Catalon, continued issuing his monitor reports after reviewing Respondent’s patient charts. In Catalon’s April and July 2003 reports, Catalan found no inappropriate conduct by Respondent. However, Catalon’s descriptions of Respondent’s care concerned Valdez that the male pediatric patients themselves were not present when Respondent presumably provided them care, there was no documentation of a physical examination, and it seemed that Respondent only consulted the parents of the patients in most if not all cases. In an August 11, 2003 telephone conversation with Valdez, Respondent explained that he would not physically examine the pediatric patients, but instead would review and/or order laboratory tests. Respondent further explained that when a minor male patient was present at his office, he would only observe him with a parent present. Valdez reminded Respondent that a third party chaperone was needed when he observed a minor male patient. For the first time, Respondent told Valdez that he understood the third party requirement applied only when Respondent conducted a physical examination of a minor male patient, not when Respondent was observing, a patient, or when the patient was accompanying the parent during a consultation. Valdez explained that the word “examining” as used in the probationary order always meant examining, treating, seeing, or observing any minor male patient.
20. Respondent disagreed with Valdez’s definition of “examining,” but Valdez remained steadfast that the definition was broader than solely a physical examination. At hearing, Respondent reiterated that the word, “examining” could only mean performing a . physical examination of a patient and that all physicians would interpret the word similarly. According to Respondent, given his definition of “examining,” Respondent did not believe he needed a third party present whenever he was observing a minor male patient or when such a patient solely accompanied his parents to Respondent’s office.
Respondent’s Treatment of Persons with Autism
21. As part of his practice, Respondent treats persons with autism. As a proponent and practitioner of biomedicine, Respondent believes autism is reversible. Respondent acknowledges that his view of autism is different from the view held by the majority of physicians and psychologists. Respondent believes that autism is a result of biochemical deficiencies and/or exposure to harmful elements. He believes the traditional approach to autism, which he describes as only treating the symptoms, is not nearly as effective as the biomedical approach. Respondent believes the appropriate infusion of vitamins, minerals and other natural supplements, together with various therapies (i.e., speech and language, behavioral, and social therapies), and the removal of harmful elements in the body, like heavy metals, can and does, according to Respondent, reverse autism with astonishing and rapid results. Respondent believes that conventional therapeutic treatments, like occupational, speech, physical, and behavioral therapies, are essential treatment components that compliment his biomedical approach.
22. Respondent learned about this alternative approach to treating autism by attending conferences held by the Autism Research Institute, an organization founded approximately 15 years ago that advocates the biomedical treatment of autism. The Autism Research Institute has developed a treatment protocol that is known by the acronym, DAN!. DAN! represents “Defeat Autism Now!”
23. In his common practice, treating patients using the biomedical approach, Respondent does not perform physical examinations of his patients because he presumes each patient’s primary physician has done and will do physical examinations as part of their practice. Respondent considers himself a consultant for the parents of minors with autism. Respondents treats patients with autism with the understanding that the parents will utilize their primary physicians for traditional medical care and will come to Respondent specifically for biomedical treatment as an alternative and compliment to traditional medical practice. As part of his usual practice and custom, Respondent requests the parent(s) of the patient with autism to complete an II-page document entitled, “Health Appraisal Questionnaire,” usually before the initial visit. The questionnaire includes questions on the referral source, the name of the patient’s “usual physician,” and subsections entitled, “Past History,” “Family History,” “Current History,” “Digestion,” “Fat Metabolism,” “Adrenal Function,” “Musculo-skeletal,” and “Allergy, Immunology, Metabolism.” The questionnaire also has questions on hospitalizations, gender-specific questions, a request to list all “[n]utrient supplements,” “prescription medications,” a “Diet Survey,” and a checklist of “Classic Observable Symptoms of Autism.” Respondent explained that a patient’s initial visit consists of a two-hour interview with the parent or guardian only. Respondent advises the parents not to bring the child patient to the first two visits, if possible. Respondent orders laboratory tests to determine the patient’s biochemistry or reviews any testing previously completed. Respondent reviews the lab test results of those tests he ordered and recommends a treatment plan of nutritional changes and supplements. Since his probation became effective, when Respondent sees minor male patients, he solely observes them with the parent or guardian present.
24. Regarding the four patients discussed below (Factual Findings 25 through 36, post), Respondent vigorously asserted at hearing that his treatment and care of the four patients was appropriate and resulted in significant progress in each case.
25. On March 4, 2003, Respondent first saw Patient N.A., then, a three-year-old boy with autism. N.A. was accompanied by his mother. Respondent did not perform a physical or neurological examination of N.A. Respondent documented N.A.’s nutritional changes and supplement use already in progress, and Respondent’s observations. Regarding his observations, Respondent specifically noted N.A.’s poor eye contact, echolalia, and the absence of “dysmorphic features.” Respondent also documented N.A.’s earlier diagnosis of autism, made by a regional center2 when N.A. was 34 months of age. At this initial visit, Respondent diagnosed N.A. with autism spectrum disorder, ADHD (attention deficit, hyperactivity disorder), behavior disorder, digestive disorder, allergy to food, and toxic exposure. Respondent ordered various laboratory tests (urine, stool, and others). N.A.’s parent(s) completed the 11-page questionnaire described in Factual Finding 23, noting, among other things, N.A.’s usual physician.
2A regional center is a non-profit organization that provides service coordination for persons with developmental disabilities, pursuant to the Lanterman Developmental Disabilities Services Act. (Welf. & Inst. Code, § 4500 et seq.) Autism is a developmental disability (Welf. & Inst. Code, § 4512, subd. (a).) Regional centers can determine whether an individual has a developmental disability. (Welf. & Inst. Code, § 4643.) With few exceptions, a regional center’s determination of whether a person has a developmental disability remains for life. (Welf. & Inst. Code, § 4643.5.)
26. The earliest laboratory samples Respondent collected from N.A. were collected on March 10, 2003. The analyzing laboratory reported its findings (regarding those samples) to Respondent on March 18, 2003.
27. N.A. and his mother returned to Respondent on May 15, 2003. Respondent documented improvements in N.A.’s behaviors and abilities. Respondent planned additional laboratory tests, recommended nutritional adjustments, and chelation (the process of removing heavy metals from the body). Respondent next saw N.A. on July 3, 2003. Respondent documented the administration of a glutathione injection. On this visit, Respondent diagnosed N.A. with mercury toxicity and recommended additional chelation. He noted that he would recheck N.A.’s urine in two to four months.
28. On July 16, 2003, Patient M.B.’s mother first saw Respondent, though M.B., a six-year-old boy at the time, did not accompany her. M.B.’s mother filled out the 11-page questionnaire, described in Factual Finding 23, noting, among other things, M.B.’s usual physician. Respondent documented M.B.’s obsessions and anxieties, speech delays, a history of echolalia, and socialization problems. Respondent described M.B.’s diet and noted that M.B. was receiving occupational therapy at school, and not receiving speech therapy. Respondent further noted M.B. was in a special day class at school with pull out sessions (unspecified) and a social skills group. At this initial visit, Respondent .diagnosed M.B. with autism, expressive and receptive language disorders, toxic exposure, food allergy, ADHD, OCD (obsessive-compulsive disorder), and an inadequate diet. He ordered a variety of laboratory tests ·and recommended chelation. As M.B. was not present, Respondent did not conduct a physical or neurological examination. The earliest laboratory test results (of tests Respondent ordered) were reported to Respondent on August 12, 2003.
29. M.B.’s mother returned (again without M.B.) for a follow-up visit on September 16, 2003. Respondent documented various laboratory test results, including food allergy tests, urine . . . metals tests, and urine amino acids tests. Respondent recommended a follow up visit in one or two months and the administration of biomedical supplements.
30. M.B.’s mother returned (without M.B.) on October 25, 2004. Respondent documented M.B.’s age (eight), and noted that he had not been seen in over one year. Respondent described M.B.’s progress and on-going problems under headings that read:
“Progress,” “Language,” “Social,” “School,” “Therapies,” “Bowel Movements,” “SelfStimulating Behaviors,” “Supplements,” “Diet,” and “OCD.” Respondent documented that M.B. received occupational therapy at school and was starting a social skills group. At this visit, Respondent diagnosed M.B. with OCD, anxiety, and ADD (Attention Deficit Disorder).
31. On February 4, 2003, Respondent first saw Patient N.C., a six-year-old boy with autism; he was accompanied by his mother. Respondent did not perform a physical or neurological examination of N.C. N.C.’s mother filled out the II-page questionnaire described in Factual Finding 23, noting, among other things, N.C.’s usual physician. Respondent documented that N.C. was formally diagnosed with autism at three years of age by a neurologist. Respondent described N.C.’s speech delays and other adaptive skill deficits. He noted, among other things, “patches of eczemoid-like eruption [ s] on his trunk” and the absence of “dysmorphic features.” Respondent also noted N.C. had had some speech therapy and no occupational therapy. At this initial visit, Respondent diagnosed N.C. with autism, ADHD, behavior disorder, developmental delay with hyperkinesis, allergy to foods, allergic rhinitis by history, asthma, and eczema. Respondent ordered a variety of laboratory tests and the administration of cod liver oil.
32. N.C.’s mother returned for· a follow-up visit on May 15, 2003; N.C. did not accompany his mother. Respondent documented N.C.’s progress and deficits. Under a heading entitled, “Physical,” Respondent wrote, “[n]ot done today.” He documented the results of various laboratory tests and recommended certain supplements.
33. On February 22, 2005, Respondent wrote a letter addressed to whom it may concern, wherein he identified himself as a licensed physician, caring for N.C. Respondent wrote that N.C. “requires … daily intensive speech, behavioral and occupational therapies.” (Underscoring in original.) Respondent wrote: “[t]hese therapies are medically necessary. Autism is a treatable condition that requires a comprehensive approach. Speech therapy, in particular, is vital to the recovery process and must be given daily, and for many hours per day.”
34. On June 14, 2003, the mother of Patient N.P., a 13-year-old boy with autism, saw Respondent; N.P. was not present. As N.? was not present, Respondent did not perform a physical or neurological examination. N.P.’s mother filled out the 11-page questionnaire described in Factual Finding 23, noting, among other things, N.P.’s usual physician. Respondent documented that a regional center had diagnosed N.P. with autism at three years of age. Respondent also documented N.P.’s diet, family history, developmental history, and recent problems. On this same day, Respondent diagnosed N.P. with autism, behavior disorder, developmental disorder (mixed), receptive and expressive language disorder, food allergy, toxic exposure, an inadequate diet, and ADHD. Respondent recommended an extensive plan of nutritional changes, supplements, and laboratory tests. Respondent also recommended an antifungal remedy (Nystatin or Candex) and directed N.P. to take one pill, twice a day on an empty stomach. The earliest laboratory test results Respondent ordered were reported to Respondent on August 5, 2003.
35. On July 3l, 2003, N.P.’s mother wrote Respondent a letter, wherein she noted positive changes in N.P. after Respondent’s suggested dietary changes.
36. Respondent consulted with N.P. ‘s mother by telephone on September 13, 2003. Respondent documented N.P.’s progress and problems, noting N.P.’s reactions to certain supplements recommended at the initial visit in June 2003. Following his telephone consultation with N.P.’s mother, Respondent diagnosed N.P. with autism spectrum disorder. Respondent documented that N.P. “needs intensive speech therapy.” Respondent recommended more laboratory tests and other supplements.
The Opinions of Dr. Michael Lerner
37. Complainant proffered the opinions of Dr. Michael A. Lerner, a pediatrician. Dr. Lerner received his medical degree from the Mount Sinai School of Medicine in New York, New York in 1977. He completed his internship in pediatrics between 1977 and 1978 at the Hospital for Sick Children in Toronto, Ontario, Canada. Lerner completed his residency in pediatrics between 1978 and 1980 at the Hospital for Sick Children in Toronto and the Children’s Hospital Medical Center in Boston, Massachusetts. Respondent was also the Chief Resident in Ambulatory Pediatrics at the Children’s Hospital in Boston from 1980 to 1981. Since 1998, Lerner has been a Clinical Professor of Pediatrics at the University of California at Irvine (UCI) California College of Medicine. Lerner held other academic positions at the UCI College of Medicine from 1982 to 1992. He was board-certified by the American Board of Pediatrics in 1982; since 2002, Lerner also holds a sub-Board specialty in Developmental and Behavioral Pediatrics. Since 1978, he has been a Diplomate of the National Board of Medical Examiners. Lerner belongs to various medical associations, including the Society for Developmental and Behavioral Pediatrics, the Ambulatory Pediatric Society, and he is a fellow of the American Academy of Pediatrics. He has a significant number of peer-reviewed publications regarding, among other topics, attention deficit-hyperactivity disorder. Lerner has given numerous lectures on hyperactivity, learning disabilities, attention deficit disorder, and developmental disabilities.
38. In a letter report to the Board’s Probation Inspector Valdez, Lerner discussed his assessment of Respondent’s overall treatment of the four patients discussed in Factual Findings 25 through 36. Lerner opined that Respondent’s treatment plans were below the standard of care. In his letter to Valdez and in his testimony, Lerner was clear that Respondent’s use of alternative medicine was not the problem, writing that Respondent was not promoting “invalidated treatments (quackery).” Lerner described Respondent’s treatments as “non-validated (plausible, but not yet proven).” Lerner aptly wrote: “this case, in part, addresses the professional obligations of traditional medical providers in the application of non-traditional care.” Lerner opined “the lack of … physical examinations (typical in pediatric and subspecialty developmental pediatric care) … is a departure from standards of evaluation appropriate for either a general pediatrician or a medical specialist.” Lerner found that Respondent “did not provide adequate care in a fashion as to address the traditional medical differential diagnosis of causality for autistic behaviors. His training in medicine and his practice under a medical license places him in “a position of responsibility for the diagnosis and management of traditional health concerns … that can contribute to autistic behavior. He did not meet this critical obligation.” Lerner explained at hearing that Respondent was obligated to perform physical and neurological examinations of each patient, whether or not he sees himself as a consultant or specialist because Respondent is nonetheless expected to look for other possible conditions that could be elicited from such examinations. Lerner further explained that conditions, like tuberous sclerosis and Fragile X syndrome, for example, are conditions that manifest some symptoms similar to those symptoms manifested by autistic spectrum disorders. Additionally, Lerner criticized Respondent for failing to recommend educational and behavioral therapies for the four patients. Lerner described this failure as a departure from the standard of care. Overall, Lerner opined that Respondent was “responsible for the traditional medical obligations to take a history, examine patients, and address the presence of traditional health concerns that can cause or impact children with autism. He does not meet the standard of providing such traditional care for children with developmental disorders.”
39. Lerner reviewed the records of the four patients. In addition to Lerner’s general opinions (Factual Finding 38), Lerner more particularly found that Respondent’s failure to perform physical and neurological examinations in each of the four cases was below the standard of care (Lerner did acknowledge that Respondent provided N.C. more of a physical examination than the others, but still opined it was not enough). Lerner described Respondent’s failure to perform these examinations as a simple departure from the standard of care in the case of N.A., while he described the same failure as an extreme departure in the case of N.P. Lerner never explained this distinction. Regarding general standards that Respondent failed to meet, Lerner opined that a physician must see a patient to diagnose autism, and a physician cannot choose not to physically examine a patient and rely on a previous doctor’s physical exam. Lerner also opined the treatment of children with autism must include occupational, physical, and/or behavioral therapy, and possibly medication if the patient is aggressive or irritable. Lerner asserted that a failure to treat children with autism with various therapeutic services demonstrated a lack of knowledge regarding appropriate treatments.
40. In the case of N.A., Lerner also opined that Respondent’s observation, noting the absence of dysmorphic features, was inadequate because some dysmorphic features require the child to be unclothed and physically examined, and in the case of N.A., Respondent did not physically examine him.
41. In the case of M.B., Lerner opined that Respondent’s failure to document ADED features, like inattention, impulsivity, and hyperactivity, yet still diagnose M.B. with ADED, falls below the standard of care. Lerner described Respondent’s failure to include traditional medicine as part of his treatment and care of M.B. as an extreme departure from the standard of care. Lerner further opined that Respondent’s failure to include traditional medicine showed a lack of knowledge about the appropriate care M.B. required. Lerner also opined that the DSM-IV3 (the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition) does not allow the diagnosis of ADHD and autism together. While Lerner has significant experience in these matters, there was insufficient evidence to support Lerner’s assertion regarding whether ADHD and autism may be diagnosed together. Furthermore, when asked about this assertion on examination, Lerner’s testimony was unclear.
3The DSM-IV is a diagnostic reference manual published by the American Psychiatric Association. It is widely relied upon by health care professionals who can diagnose mental disorders, including autism and other pervasive developmental disorders, ADHD, and learning disabilities. The DSM-IV was published in 1994. The current edition, the DSM-IV-TR (text revision), was published in 2000; it superseded the DSM-IV.
42. In the case of N.C., Lerner opined that Respondent departed from the standard of care because the standard of practice would require Respondent to treat N.C.’s ADHD with behavioral therapy or pharmacotherapy, regardless of whether Respondent used a biomedical approach. Lerner further opined that Respondent’s failure to document treatment targets that could be monitored was a simple departure from the standard of care and showed a lack of knowledge,
43. In the case of N.P., Lerner also opined Respondent’s failure to use traditional medicine in conjunction with biomedicine was a departure from the standard of care and showed a lack of knowledge regarding N.P.’s conditions.
The Opinions of Dr. Joseph Carella
44. Complainant also proffered the opinions of Dr. Joseph A. Carella, a pediatrician. Carella received his medical degree from Tufts University School of Medicine in Boston Massachusetts in 1965. He completed his internship and residency in pediatrics at the Tufts New Eng~and Medical Center from 1965 to 1968. Carella is currently the Director of Pediatrics at the Clinica Medica Familiar de Santa Ana, in Santa Ana, California. He is board-certified by the American Board of Pediatrics (since 1970). Since 1969, he has had hospital affiliations with the D.C. Irvine Medical Center and the Children’s Hospital of Orange County. Carella has been an expert pediatric consultant to the Board since 1995..
45. Carella opined, like Lerner, that whether a consultant or the primary physician, the standard of practice required Respondent to conduct physical and neurological examinations of the four patients described in Factual Findings 25 through 36. Carella asserted that Respondent’s failure to do so was below the standard of care. Carella also explained, like Lerner, that physical examinations help rule out other possible causes for a child’s delays and detect other conditions.4 Carella opined that Respondent’s failure to order speech and hearing evaluations of the four patients was also contrary to the standard of practice, and in his view, negligent. Carella explained that autistic features may mask hearing disabilities, or hearing disabilities may cause children to mimic some autistic behaviors or learning disabilities. For these reasons, it is essential that physicians order speech and hearing evaluations to rule out hearing defects and evaluate a child’s speech performance in the context of any hearing problems that may be uncovered. Carella emphasized that uncovering hearing disabilities early in a child’s life provides an important opportunity to offer early treatment.
4At hearing, Respondent argued that his biomedical treatments would not affect any other potential conditions discovered by a physical or neurological examination, and therefore his failure to perform such examinations did not harm his patients.
46. Carella took issue with Respondent’s biomedical treatment, asserting that Respondent’s claims of reversing autism were unfounded in traditional medical studies. Carella opined that the standard of care in treating children with pervasive developmental disorders like autism was to use information gained from assessments like adaptive behavior scales, physical and neurological examinations, hearing tests, and achievement and intelligence tests, and provide the indicated therapeutic services.
47. Carella also took issue with Respondent’s diagnoses of autism. Carella asserted there are no specific laboratory tests that can detect autism, ADHD, and other similar conditions. Carella opined that the standard of practice requires a physician to use psychoeducational instruments, like intelligence and achievement testing, as well as behavioral observations to aid in the diagnosis process.5 Carella opined that a prudent physician must apply behavioral diagnostic criteria, like those found in the DSM-IV, to information the physician obtains from tests and examinations. Carella also opined that a pediatrician’s training alone does not qualify Respondent to evaluate and treat people with autism spectrum disorders. .
5Both parties pointed to a 2000 article in the Report to the Quality Standards Subcommittee of the American Academy of Neurology and the Child Neurology Society, entitled, Practice parameter: Screening and diagnosis of autism.” Respondent pointed to among other things, notes in the article that parents indeed provide reliable and useful information regarding child development, and that lead screening is important when screening for autism. Respondent argued that these parameters are in concert with his practice of using the 11-page questionnaire and in pursing the removal of heavy metals from his patients. However, the article also corroborated Dr. Carella’s position that audiologic testing is necessary when diagnosing autism, and that physical and neurological examinations, and speech and hearing evaluations are part of the treatment and evaluation process for children with autism or suspected autism.
48. Carella concluded that Respondent ordered too many laboratory tests without justification for all four patients. Carella criticized Respondent for prescribing an antifungal medication to N.P. without seeing him, failing to perform or order hearing and speech evaluations for all four patients, and failing to recommend educational and behavioral therapies. All of these actions or inactions by Respondent, according to Carella, were below the standard of care, and furthermore, Respondent’s failure to order therapeutic services demonstrated a lack of knowledge regarding the treatment of children with autism. Carella found Respondent’s treatments and diagnoses for M.B. and N.P were extreme departures from the standard of care, because Respondent never saw either patient.
Respondent’s Current Monitor
49. Dr. Nancy Mullan, a psychiatrist, testified on behalf of Respondent. Mullan first met Respondent in 2000 at a conference put on by the Autism Research Institute where both Mullan and Respondent sat on panels. Apart from Mullan’s role as Respondent’s monitor, their relationship is best described as professional acquaintances. Mullan has been Respondent’s monitor, per the terms of probation, since April 19, 2004. The evidence did not establish when Dr. Samuel Catalon ceased being Respondent’s monitor. Mullan received her medical degree from the Tufts University School of Medicine in Boston, Massachusetts in 1971. She has a private practice in adult and child psychiatry. In earlier years, Mullan was a Clinical Instructor at the University of Southern California, School of Medicine (19921993) and at the University of California at Los Angeles School of Medicine (1979-l985).
50. Over the years, Mullan has come to believe that biomedicine is generally more effective than traditional psychological medicine. She is a proponent of the biomedical approach, which she described generally as changing a person’s diet to optimize brain function. Mullan believes Respondent’s treatment of patients with autism met the standard of care, but she qualified her statement by saying Respondent met the standard of care as promoted by the Autism Research Institute, or in other words, the standard of care for biomedical treatment. Mullan thinks of Respondent more as a biomedical doctor than a pediatrician. Mullan sees Respondent as a physician performing biomedical treatments on patients with autism, with each patient continuing to see his or her primary physician in addition to Respondent. Mullan sees Respondent as an extension or compliment to the patient’s primary physician. Mullan finds no problem with Respondent’s treatment and care of his patients with autism.
51. Mullan agrees with Respondent that the word, “examining,” as written in Respondent’s probationary order, means to perform a physical examination.
Respondent’s Reputation in the Community
52. Two adult patients testified on behalf of Respondent. Respondent’s patients consider him to have the highest professionalism in his practice and they hold him in high regard. Respondent’s patients appreciate his open door policy, which has meant that Respondent has always made the time to see and talk to his patients. Respondent makes house calls and structures his practice in such a way as to make his services as affordable as he can.
53. None of Respondent’s patients filed a complaint against him in this matter. No one related to the four patients at issue in this case filed a complaint against Respondent.
1. Business and Professions Code section 2227 states in pertinent part:
(a) 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 . . . who is found guilty . . . may, in accordance with the provisions of this chapter:
(1) Have his . . . license revoked upon order of the division.
[¶]. . . [¶]
(5) Have any other action taken in relation to discipline as part of an order of probation, as the division or an administrative law judge may deem proper.
2. Business and Professions Code section 2234 states in pertinent part:
The Division of Medical Quality 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:
[¶] … [¶]
(b) Gross negligence
(c) 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.
(1) 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.
(2) 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.
3. Business and Professions Code section 3527, subdivision (d) states in pertinent part:
[T]he Division of Medical Quality of the Medical Board of California, in conjunction with an action it has commenced against a physician and surgeon, may, in its own discretion and without the concurrence of the board, order the suspension or revocation of, or the imposition of probationary conditions upon, an approval to supervise a physician assistant, after a hearing as required in Section 3528, for unprofessional conduct, which includes, but is not limited to, a violation of this chapter, a violation of the Medical Practice Act, or a violation of the regulations adopted by the committee or the board.
4. Complainant must prove his case by clear and convincing evidence to a reasonable certainty. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Ca1.App.3d 853.) Clear and convincing evidence means the evidence is “so clear as to leave no substantial doubt” and is “sufficiently strong to command the unhesitating assent of every reasonable mind.” (Mathieu v. Norrell Corporation (2004) 115 Cal.App.4th 1174, 1190 [citing Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App4th 306,332-333].)
5. “[A] physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” (Landeros v. Flood (1976) 17 Cal.3d 399, 408; see also, Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-998.) “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts … and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.” (Landeros v. Flood, supra, 17 Cal.3d atp.410.)
6. ”’Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. ‘ [Citation.] Thus, as a general proposition one ‘is required to exercise the care that a person of ordinary prudence would exercise under the circumstances.’ [Citations.] Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. [Citations.]” (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Ca1.4th at p. 997.) “Since the standard of care remains constant in terms of’ ordinary prudence,’ it is clear that denominating a cause ‘of action as one for ‘professional negligence’ does not transmute its underlying character. For substantive purposes, it merely serves to establish the basis by which ‘ordinary prudence’ will be calculated and [Respondent’s] conduct evaluated.” (Id., supra, at p. 998.)
7. Gross negligence is defined as “the want of even scant care or an extreme departure from the ordinary standard of conduct.” (Eastburn v, Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186.)
Respondent’s Violations of Probation
8. Respondent’s probation mandated a third party present “while examining minor male patients.” (Factual Finding 8.) Respondent saw and treated Patients N.A. and N.C. in his offices with their respective mothers present, but without third parties present. (Factual Findings 25, 27, & 31.) Respondent’s probation investigator allowed a patient’s parent to qualify as a proper third party only if a patient objected to a female third party and Respondent documented the name of the parent acting in that capacity. The files of N.A. and N.C. documented no such objections by the patients. Therefore, those visits constitute violations of probation.
9. Respondent proffered two arguments in his defense. First, he argued the definition of “examining” could only mean a physical examination of a patient, and since he did not perform such an exam, he complied with the probationary condition when N.A. and N.C. visited his offices. Respondent further argued that once the definition of “examining” was clarified to him, he complied with the contested but accepted definition and no longer allowed minor male patients to be seen by him without a third party present. Second he argued that in the cases of N.A. and N.C., the patients’ parents were always present while at Respondent’s clinic. Respondent’s arguments cannot sustain a defense.
10. As to Respondent’s first argument, that the probationary condition was only relevant if he performed a physical examination, that is not a reasonable interpretation of the condition, especially given the circumstances under which the Board imposed the requirement. Respondent must have understood that his actions of measuring and stimulating the young boy’s penis were and are troubling, and appropriately raised the Board’s concern for the safety of Respondent’s other patients. Respondent must have further understood that the Board’s primary purpose for imposing the third party requirement was to protect other minor male patients from possible sexual misconduct. Contrary to Respondent’s view, inappropriate contact between a doctor and a patient can occur while a minor patient visits a treating physician, regardless of whether the physician physically examines the patient. Without performing a physical exam, a doctor may approach, touch, speak or act inappropriately toward a minor patient, even with a parent in the same room.
11. Though Respondent argues that “examining” has a specific and narrow meaning to him as a physician, the word ‘examining,” cannot be read so strictly. Complainant’s view, that the word “examining” means treating, seeing, or observing, is a more common and reasonable understanding of the word, an understanding Respondent is deemed to know.6 When Respondent saw N.A. and N.C., Respondent observed the boys, diagnosed them, ordered lab tests, and prescribed various supplements and procedures. (Factual Findings 25, 27, & 31.) Respondent undoubtedly treated them. Those actions fall within the meaning of the probationary condition requiring the presence of a third party.\
6According to the New Oxford American Dictionary, Second Edition (Oxford University Press, 2005), “examine” means “inspect (someone or something) in detail to determine their nature or condition; investigate thoroughly.”
12. Saliently, Respondent himself uses the word, “seen” when he means examine or treat. In his form, a form he drafted for use at the Holistic Resource Center, Respondent wrote, “No child will be seen without an appropriate adult chaperone.” (Factual Finding 15, italics added.) Thus, Respondent understands the words “to see” and “to “treat” can and does mean “to examine.” As Complainant’s counsel argued at hearing, Respondent could have opted not to see minor male patients. He did not, and thus, he was and is obligated to follow the terms of probation. His failure to secure a third party chaperone when he saw N.A. and N.e. demonstrated Respondent’s failure to appreciate the seriousness of his prior discipline and his need to provide a third party safeguard for his minor male patients. That Respondent saw N.A. and N.C. without a third party present before the probation investigator had clarified the meaning of the word “examining” is of no consequence to this analysis. Respondent violated the requirement to have a third party present. Respondent’s violation is serious in nature. The third party safeguard was meant to protect minor male patients from possible inappropriate contact by Respondent. Respondent should have abided by the probationary requirement conservatively, interpreting every word to the protection and benefit of his patients. Had he, he would have demonstrated an understanding of the gravity of the discipline. He did not. It is therefore appropriate to revoke probation for Respondent’s violations and impose the stayed discipline, revocation of his medical license. (Bus. & Prof. Code, §§ 2227 & 3527, subd. (d).)
13. Respondent’s second argument, that a parent was always present with N.A. and N.C. during their visits, similarly fails. The presence of the patients’ mothers did not satisfy the probationary condition of a chaperone because there was no evidence that the patients objected to a female third party or documentation of the parents being used in that capacity. The Holistic Resource Center form mandating adult chaperones with minors at all times (Factual Finding 15) was insufficient to meet the third party requirement. Again, contrary to Respondent’s view, inappropriate contact between a doctor find a patient can occur with the patient’s parent in the same examining room. For example, during a parent consultation, a doctor can ask an accompanying parent for permission to examine a minor patient. The presence of N.A.’s and N.C.’s parents while being treated, therefore, provides Respondent no defense.
14. Respondent is expected to comply with the terms of probation, and his violation of the terms and conditions is unprofessional conduct. eomplainant therefore proved Respondent violated Business and Professions Code section 2234, and revocation is appropriate pursuant to Business and Professions Code section 2227.
15. Cause exists to revoke Respondent’s probation and impose the stayed discipline, for violations of probation, pursuant to the probationary terms and conditions in the Decision and Order in the Matter of the Accusation against Alan Schwartz (case number 09-96-69628), as set forth in Factual Findings 1-20, and Legal Conclusions 1-14.
16. Cause exists to revoke Respondent’s physician and surgeon certificate, for unprofessional conduct, in violation of Business and Professions Code section 2234, as set forth in Factual Findings 1-20, and Legal Conclusions 1:-15.
Respondent’s Gross Negligence
17. Respondent diagnosed and treated Patient M.B without ever seeing him. (Factual Findings 28-30.) Respondent diagnosed M.B. with autism, though he did not note an earlier diagnosis from another physician or psychologist, nor did he administer any psychometric evaluations, or refer to the DSM-IV-TR’s criteria. As Dr. Carella opined, such a diagnosis, which is not based on objective testing, is unfounded and inappropriate. (Factual Findings 47 & 48.) Respondent also diagnosed M.B. with toxic exposure at the initial visit on July 16, 2003, but the earliest laboratory results reported to Respondent were sent to him approximately one month later, on August ]2, 2003. Respondent therefore had no clinical basis for the diagnosis. Respondent further diagnosed M.B. with ADHD, but as Lerner noted, Respondent did so without documenting objective features symptomatic of ADI-ID. These actions were unfounded and professionally inappropriate.
18. With regard to M.B. (though it factually relates to all four patients), Dr. Lerner also opined that Respondent inappropriately diagnosed ADHD and autism together. Lerner asserted that the DSM-IV does not allow a simultaneous diagnosis of these two conditions, but Lerner’s testimony on this assertion was not clear, and neither party proffered evidence of what the DSM-IV specifically states on this issue. Moreover, Respondent first saw M.B.’s mother in July 2003. At that time, the DSM-IV had been replaced by the DSM-IV- TR, the current edition. There was no testimony regarding whether the DSM- IV – TR provides as Lerner asserted.
19. Respondent also diagnosed and treated Patient N.P. without ever seeing him. (Factual findings 34-36.) Like M.B., Respondent diagnosed N.P. with autism, but in the case of N.P., Respondent noted that a regional center had diagnosed N.P. at three years of age. (Factual Finding 34.). Respondent’s diagnosis of autism for N.P., therefore, was not grossly negligent, since a regional center is mandated by the Legislature to determine such diagnoses and such a determination remains for life, unless the diagnosis is proven clearly erroneous. (See Factual Finding 25, n. 2, [discussing provisions of the Lanterman Act].) However, Respondent also diagnosed N.P. with toxic exposure at N.P.’s mother’s initial visit of June 14, 2003, almost two months before the earliest laboratory results were reported to Respondent on August 5, 2003, and having never seen N,P. Furthermore, Respondent recommended antifungal medications without ever examining N.P.
20. Since Respondent saw Patients N.A. and N.C., the evidence did not establish that Respondent’s diagnoses and treatment of those two patients was grossly negligent.
21. Pursuant to the opinions of Drs. Lerner and Carella, Respondent’s actions were extremely inappropriate and significantly contrary to what a prudent pediatrician would do. Respondent’s diagnoses and treatment of M.B. and N.P. without ever seeing either patient, represent extreme departures from the ordinary standard of conduct for a reasonably prudent physician, and therefore constitute gross negligence. (Eastburn v. Regional Fire Protection Authority, supra, 31 Cal.4th at 1185-1186.) Respondent provided no opinion evidence to the contrary.
22. Cause therefore exists to revoke Respondent’s physician and surgeon certificate, for acting with gross negligence, in violation of Business and Professions Code sections 2234, subdivision (b), as set forth in Factual Findings 1-9, 21-24, 28-30, 34-53, and Legal Conclusions 1-8, 17-21.
Respondent’s Repeated Negligent Acts
23. Respondent’s failure to perform physical and neurological examinations of, and to order speech and hearing evaluations for, the four patients is negligent conduct. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 997-998.) Respondent argued that he did not need to do physical and neurological exams, pointing to the fact that each patient had a primary physician. Respondent asserted that each patient’s primary physician had done, and would do, physical and neurological exams, and that as a biomedicine consultant, Respondent should not be required to perform them. Similarly, Respondent should not be required to perform or order speech or hearing evaluations. Those responsibilities, argued Respondent, fell to the patients’ primary physicians. However, Drs. Lerner and Carella opined that the community standard requires physicians to perform physical and neurological examinations at each visit and, that whether a consulting physician or a primary physician makes no difference. (Factual Findings 38, 39 & 45.) Respondent proffered no expert opinion to the contrary. The evidence established that physical and neurological examinations serve the significant purpose of potentially uncovering other contributing or similar conditions. Moreover, speech and hearing evaluations can uncover or rule out hearing problems; and if problems do exist, finding them early in a child’s life provides an opportunity to treat the disability as soon as possible. (Factual Finding 45.)
24. Respondent’s current monitor, Dr. Nancy Mullan testified that she saw Respondent much more like a consultant than a pediatrician, and did not believe Respondent had fallen below the standard of care in his treatment and care of the four patients. However, Mullan’s opinions are of little relevance to this matter, since she was assessing Respondent against the standard of care for biomedical treatment practitioners.7 As Dr. Lerner correctly emphasized in his opinion, Respondent’s application of biomedicine is not at issue in this matter. The standards in this case relate to the professional standards of a licensed physician practicing traditional medicine. Mullan provided no opinions regarding whether Respondent met those standards.
7At hearing, Complainant argued Mullan had a closer relationship with Respondent than that of professional acquaintances, and that, as a consequence, Mullan was biased in favor of Respondent. The evidence did not establish any relationship other than that of two doctors who had previously met at a professional conference.
25. Respondent’s 11-page questionnaire provided an extensive medical history, and the four patients’ file charts described the patients’ abilities, deficits, and, in the case of those he actually saw, some of Respondent’s physical observations. However, as opined by Lerner and Carella, as a licensed physician, Respondent is still professionally obligated to conduct physical and neurological examinations. Respondent provided no evidence that he performed any other type of examinations or assessments of the patients beyond those reflected in the patients’ charts. Moreover, in May 2003, Respondent affirmatively documented that he did not perform a physical examination of N.C. (Factual Finding 32.)
26. Respondent failed to perform physical and neurological examinations and to order speech and hearing evaluations for all four patients. Those failures collectively constitute repeated negligent acts. (Bus. & Prof. Code, § 2234, subd. (c).)
27. Cause exists to revoke Respondent’s physician and surgeon certificate, for repeated negligent acts, in violation of Business and Professions Code section 2234, subdivision (c), as set forth in Factual Findings 1-8, 2l-53, and Legal conclusions 1-7, & 2326.
28. According to Respondent’s chart notes, Respondent did not document that N.A. or N.P. were receiving any therapeutic services like occupational, physical, speech, behavioral, or social therapies. Despite agreeing that therapeutic services are essential to treatment, and while Respondent diagnosed, N.A. and N.P. with autism and other conditions that manifest behavioral and language deficits, Respondent failed to recommend, order, or prescribe therapeutic services for either patient. Respondent noted that N.P. needed intensive speech therapy (Factual Finding 36), but failed to make any recommendations or order any treatment for him. Lerner and Carella asserted that it is the standard of practice for a prudent physician to recommend and/or prescribe such therapies, and a failure to do so represents a lack of knowledge regarding the treatment of children with autism. (Factual Findings 38, 39, 41,42, & 48.) Respondent did not proffer opinion evidence to the contrary or address why he failed to pursue therapeutic services for N.A. and N.P. Therefore, the evidence proved Respondent’s failure to recommend, order, or prescribe therapeutic services for N.A. and N.P., given Respondent had diagnosed them with various developmental disorders and was treating them, constituted incompetence.
29. According to Respondent’s chart notes, at the time of Respondent’s treatment, Patient M.B. was receiving occupational therapy (Factual Finding 28) and social skills training (Factual Finding 30). Patient N.C. had received speech therapy in the past (Factual Finding 31), and in February 2005, Respondent wrote a letter supporting N.C. ‘s need for various therapeutic services. (Factual Finding 33.) Therefore, the evidence did not prove that Respondent acted incompetently as to the treatment of M.B. or N.C.
30. Cause exists to revoke Respondent’s physician and surgeon certificate, for incompetence, pursuant to Business and Professions Code section 2234, subdivision (d), as set forth in Factual Findings 1-8,21-53, and Legal conclusions 1-8, & 28-29.
31. The patients testified credibly that Respondent is well liked and well regarded by his patients (though it was notable that no parent of a minor patient with autism testified on his behalf). At hearing, Respondent showed he is passionate about biomedicine and alternative medicine in general. However, Respondent’s application of alternative medical treatments was not at issue. Indeed, this Proposed Decision makes no conclusions regarding the efficacy or appropriateness of biomedicine, as Respondent applied in the four patient cases. It is concluded, however, that Respondent neglected his duties as a licensed physician. Respondent did not do those actions required of a licensed physician. Drs. Lerner and Carella offered reasoned opinions as to why Respondent was so obligated, focusing on the safety of the patients and explaining what pediatricians in the community do in their practice. Respondent offered no opinion testimony to support his actions or inactions. (Landeros v. Flood, supra, 17 Cal.3d at p. 410.) As to his probation violations, the evidence established that Respondent failed to appreciate the seriousness of the third party requirement. Instead of arguing the semantic interpretations of the probation order’s wording, Respondent should have acted to safeguard his patients, as he undoubtedly knew the Board intended. These failures by Respondent, while on probation, are serious and call into question the safety of his patients. Therefore, revocation is appropriate.
1. Certificate No. G l8347 issued to Respondent Alan Schwartz is revoked pursuant to Factual Findings 1-53, and Legal conclusions 1-31.
2. The stay of the revocation imposed in the Matter of the Accusation against Alan Schwartz, MD., case number 09-96-69628 is vacated, and the revocation is now imposed.
3. Respondent Alan Schwartz’s approval to supervise physician’s assistants is revoked.
Dated: September 26, 2007
Administrative Law Judge
Office of Administrative Hearings
The attached Proposed Decision is hereby adopted as the Decision and Order of the Division of Medical Quality of the Medical Board of California, Department of Consumer Affairs, State of California.
This Decision shall become effective at 5:00 p.m. on November 23, 2007 .
IT IS SO ORDERED
October 24, 2007 .
Barbara Yaroslavs Chair, Panel B
Division of Medical Quality
This page was posted on April 19, 2008.