In 2007, Stephen L. Smith, M.D., who practices in Richland, Washington, was ordered to pay a $5,000 fine, undergo a practice evaluation, and do what the evaluators recommend. The licensing board’s ruling (shown below) came in response to a complaint in which he was charged with unprofessional conduct for relying on unreliable diagnostic tests and failing to provide or refer the teenage patient for appropriate treatment. The questionable tests included hair analysis and a provoked urine test for mercury toxicity. Smith’s inappropriate “working diagnoses” included mold contamination, organ inflammation due to rapid detoxification, mercury toxicity, probable Lyme disease, and a viral inflammation of the abdomen for which he prescribed intravenous hydrogen peroxide. In June 2014, he was charged again in a similar case.
STATE OF WASHINGTON
DEPARTMENT OF HEALTH
MEDICAL QUALITY ASSURANCE COMMISSION
In the Matter of the License to Practice
Docket No. 05-01-A-1038MD
FINDINGS OF FACT,
Respondent, Stephen L. Smith, M.D., by
Miller, Mertens & Spanner, P.L.L.C., per
Christopher J. Mertens, Attorney at Law
Department of Health Medical Program, by
Office of the Attorney General, per
Kim O’Neal, Assistant Attorney General
PRESIDING OFFICER: Lin D. O’Dell, Health Law Judge
COMMISSION PANEL: Gilbert Rodriguez, M.D., Panel Chair Sunanda Uberoi, M.D. Judy Tobin, Public Member
The Medical Quality Assurance Commission (the Commission) convened a hearing on January 13-14, 2006, in Renton, Washington. The Department of Health issued a Statement of Charges alleging the Respondent had violated the Uniform Disciplinary Act.
The Respondent filed for review in the Superior Court for the County of Benton. An Order Remanding was filed with the court on March 9, 2007, setting aside Finding of Fact 1.4. The remand order stated, “[t]he commission is directed to reevaluate the affirmed findings and issue new conclusions and a new final order based solely on the findings that have been affirmed. The commission is directed to disregard finding 1.4 entirely.” The Commission convened on June 29, 2007, to reevaluate the affirmed findings and issue new conclusions and a new final order. Finding of Fact 1.4 was omitted in this order.
Did the Respondent’s conduct regarding the placement of a Mediport to infuse hydrogen peroxide into Patient 1 constitute unprofessional conduct under RCW 18.130.180(4)? If the Department proved unprofessional conduct, then what are the appropriate sanctions under RCW 18.130.1607
On May 6, 2005, a Statement of Charges was served upon the Respondent alleging unprofessional conduct in violation of RCW 18.130.180(4). On June 20, 2005, the Respondent filed his answer denying the allegations and pleading an affirmative defense under CR 12(b)(6).
On June 22, 2005, the Adjudicative Service Unit filed a Scheduling Order/Notice of Hearing setting a prehearing conference for October 17, 2005 and a hearing for November 18-19, 2005. The Respondent notified the Adjudicative Service Unit of a scheduling conflict and on July 1, 2005 an Amended Scheduling Order was served.
On December 20, 2005, the telephonic prehearing was held. At the prehearing conference, the Department stated an Amended Statement of Charges would be filed deleting Paragraph 1.9.6 and 1.10 of the Statement of Charges. The Respondent did not object. The Respondent was given until January 4, 2006 to file an objection to the deletions.
On January 3, 2006, the Department filed an Amended Statement of Charges as outlined above. On January 4, 2006, the Respondent filed a Motion to Dismiss under CR 12(b)(6).
1. On January 4, 2006, the Respondent filed a Motion to Dismiss for failure to state a claim under CR 12(b)(6). The Presiding Officer shall assume the facts alleged by the Department to. be true and rule whether there are any set of facts in the Statement of Charges where relief can be granted. The Respondent states the basis of the Department’s allegations is the use of hydrogen peroxide therapy on Patient . He states since there was no harm to the patient from the therapy, the charges should be dismissed. In addition he argues the use of the Mediport under RCW 7.70.040 should be measured under the responsible prudent physician standard and since the Mediport was not the proximate cause of any injury to. the patient, the charges should be dismissed.
The action before the Commission is a disciplinary hearing under chapter 18.130 RCW and not a law suit for professional malpractice. The charges contained in the Amended Statement of Charges do not just address the administration of hydrogen peroxide, rather, whether it was appropriate to. order a Mediport to. administer hydrogen peroxide and whether the Respondent made appropriate diagnosis and administered appropriate tests before ordering hydrogen peroxide therapy. The Respondent’s motion was denied.
2. The Department moved to permit its expert witness to remain in the hearing room during the hearing. ER 703 states in part:
The facts or data in the particular case upon Which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.
The Respondent showed no actual prejudice to his case. The Department’s motion was granted and all expert witnesses were allowed to remain in the hearing room.
3. The Respondent filed an objection to Pre hearing Order No. 2: Report on Proceeding and Prehearing Orders on January 9, 2006. The prehearing conference was held on December 20, 2005. At that time the Department indicated it was deleting two paragraphs contained in the Statement of Charges. The Respondent was given until January 4, 2006, to file an objection to the Amended Statement of Charges and/or file an Amended Answer. The Respondent filed a motion to dismiss but did not request additional time to file an Amended Answer until three days before the hearing. The Respondent’s motion was untimely and the Respondent was not prejudiced by the deletion of charges. The Respondent’s motion was denied.
SUMMARY OF EVIDENCE
The Department presented the testimony of the Respondent, three lay witnesses and one expert witness. The Respondent testified on his own behalf and presented the testimony of two lay witnesses and three expert witnesses. There was one rebuttal witness. There were fifteen (15) exhibits presented which had all been previously admitted at the pre hearing conference as set forth below:
|Exhibit 1:||Patient’s medical records from Dr. Zhang, M.D., Ph.D.|
|Exhibit 2:||Patient’s medical records from Dr. Roger Coleman.|
|Exhibit 3:||Patient’s medical records from Dr. Sara Zirkle, M.D.|
|Exhibit 4:||Patient’s medical records from Dr. John Morgan, M.D.|
|Exhibit 5:||Patient’s medical records from Kadlee Medical Center.|
|Exhibit 6:||Patient’s medical records from Dr. Steven Kincaid, M.D.|
|Exhibit 7:||Patient’s medical records from the Respondent.|
|Exhibit 8 – 15:||Not admitted.|
|Exhibit 16:||The Respondent’s statement, dated April 8, 2004, pp 285-287.|
|Exhibit 17:||The Respondent’s statement, dated April 8, 2004, pp 371-373.|
|Exhibit 18:||The Respondent’s statement, dated Sept. 10, 2004.|
|Exhibit 19||The Respondent’s statement, dated Dec. 20, 2004.|
|Exhibit 20:||The Respondent’s statement, undated.|
|Exhibit 21:||Not admitted.|
|Exhibit 22:||Dr. Steven Bratman’s Curriculum Vitae|
|Exhibit 23 – 27:||Not admitted.|
|Exhibit 28:||Dr. Penney Stringer’s Curriculum Vitae.|
|Exhibit 29:||Not admitted.|
|Exhibit 30:||Patient’s medical records from Tri-Cities Endoscopy Center, PLLC.|
The following exhibits were admitted at the hearing by stipulation of the parties:
|Exhibit 31:||Informed Consent signed by Virginia Colby dated February 9, 2004.|
|Exhibit 32:||Surgical Pathology Report dated December 15, 2004.|
|Exhibit 33:||Dr. Garry Gordon’s Curriculum Vitae.|
The hearing was recorded by Jennifer D. Lewis, Certified Court Reporter and Robert H. Lewis, Certified Court Reporter.
I. FINDINGS OF FACT
1.1 Stephen L. Smith, M.D. (the Respondent), was issued a license to practice as a physician and surgeon by the State of Washington in June 1981.
1.2 The Respondent graduated from medical school in 1980. He worked in urgent care for one year before opening his own urgent care center in 1982, The Respondent had no formal residency period. He has received additional medical training, mostly in alternative medicine, by attending seminars. The Respondent practices allopathic medicine as well as alternative medicine.
1.3 Patient 1 was sixteen years old when she first sought treatment from the Respondent on January 28, 2003. She first experienced tremors and lower extremity weakness. Later she complained of abdominal pain, nausea, vomiting, and fatigue. Patient 1 had seen multiple physicians before she consulted with the Respondent.
1.4 The Respondent diagnosed mercury toxicity based on a previous hair analysis and urine chelated challenge showing heavy metal toxicity. The Respondent believed rapid detoxification of mercury and other metals by a previous physician may have caused organ inflammation. He also diagnosed chronic viral infection and possible Lyme disease.
1.5 The Respondent prescribed multiple traditional and non-traditional medications in response to the diagnoses of mercury toxicity. He recorded some relief but in November 2003, he noted an exacerbation of symptoms with weight loss and continued skin, muscle, and abdominal tenderness.
1.6 On November 24, 2003, the Respondent administered .03% hydrogen peroxide by intravenous administration to Patient 1. The hydrogen peroxide was infused as oxidative therapy for a possible viral infection. The Respondent’s nurse was unable to find peripheral intravenous access after one infusion.
1.7 On February 9, 2004, the Respondent referred Patient 1 to Dr. Stephen Kincaid for placement of a right subclavian vein Mediport for administration of the hydrogen peroxide. Dr. Kincaid believed the central line was because intravenous access was needed for possible Lyme disease treatment and a history of multiple episodes of severe dehydration. Or. Kincaid was not aware hydrogen peroxide was to be infused via the MediPort.
1.8 The more common risks of a central line such as a Mediport are puncture of a vein or lungs during placement, thrombosis, infection, pain and scarring. The Mediport was placed under general anesthetic which also poses risks to the patient. Alternative venous access was not explored. Parental consent to placement of a central line does not justify its placement.
1.9 The Mediport was used for infusions of hydrogen peroxide on February 16, 2004, February 19, 2004, and February 23, 2004. A registered nurse in the Respondent’s office infused the liquid and flushed the port. The patient had no abatement of symptoms from these infusions.
1.10 On March 8, 2004, the patient went to the emergency room complaining of pain and numbness in her right upper extremity. A thrombosis was diagnosed and on March 9, 2004, the Mediport was removed.
1.11 The Respondent last saw Patient 1 on February 23, 2004. Patient 1 was referred to another physician and later had a cholestyectomy. The physician noted elevated results on liver function tests and after a liver biopsy, Patient 1 was diagnosed with auto-immune hepatitis.
1.12 The Respondent noted in the chart several working diagnosis including mold contamination, organ inflammation due to rapid detoxification, mercury toxicity from tuna fish ingestion, probable Lyme disease, and viral inflammation in the abdomen. The Respondent formulated no specific diagnosis with a specific plan for treatment.
1.13 The Respondent’s care of Patient 1 presents a confusing clinical picture. His evaluation and assessment is unclear and does not result in convincing evidence of diagnosis warranting a significant medical procedure such as a Mediport without further diagnostic workup. The Respondent’s treatment of Patient 1 demonstrates a fundamental lack of clinical-medical knowledge essential to formulate a valid diagnosis.
1.14 The Respondent’s use of alternative medicine does not in itself constitute unprofessional conduct; however, the Respondent created a clinical situation that allowed him to use his alternative medicine without taking additional tests or referring Patient 1 to a hospital setting for intensive testing.
II. CONCLUSIONS OF LAW
2.1 The Commission has jurisdiction over the Respondent’s license and over the subject matter of this proceeding. RCW 18.71; RCW 18.130.
2.2 The Commission used its experience, competency and specialized knowledge to evaluate the evidence presented in this case. RCW 34.05.461.
2.3 The Washington Supreme Court held that the standard of proof in disciplinary proceedings against physicians before the Washington State Medical Quality Assurance Commission is proof by clear and convincing evidence. Nguyen v. Department of Health, 144 Wn.2d 516,534, cert. denied, 535 U.S. 904 (2002).
2.4 Based upon Findings of Fact 1.2 through 1.14 above, the Commission concludes that the Department proved by clear and convincing evidence that the Respondent violated RCW 18.130.180(4). This violation constitutes unprofessional conduct and is grounds for disciplinary action.
Based on the foregoing, the Commission hereby issues in this case the following
3.1 . The Respondent shall take the Physician Assessment and Clinical Education Program (PACE) course and evaluation within 180 days from the effective date of this order. The effective date of this Order is the date that the Adjudicative Service Unit places the signed order into the U.S. mail.
3.2 The Respondent shall have a copy of the evaluation sent direct to: Medical Quality Assurance Commission PO Box 47866 Olympia, WA 98504-7866
3.3 Within sixty (60) days of completion of the PACE course, the Respondent shall appear before the Commission or Reviewing Commission Member, with a plan to fulfill the recommendations set forth by PACE. The Commission may, at its discretion, add additional requirements.
3.4 In the event the Respondent does not take the PACE course within 180 days of this Order as set forth above or appear before the Commission within 60 days of completion of the PACE course, his license shall then be SUSPENDED until the requirements of this Order are fulfilled in full.
3.5 The Respondent shall pay a fine to the Commission in the amount of Five Thousand Dollars ($5000.00) which must be received by the Commission within six months from the date of entry of this order. The fine shall be paid by certified or cashier’s check or money order, made payable to the Department of Health and mailed to the Department of Health, Medical Commission, P.O. Box 1099, Olympia, WA 98507-1099.
3.6 The Respondent shall assume all costs of complying with this order.
IV. FAILURE TO COMPLY
Protection of the public requires practice under the terms and conditions imposed in this order. Failure to comply with the terms and conditions of this order may result in suspension of the credential after a show cause hearing. If the Respondent fails to comply with the terms and conditions of this order, the Commission may hold a hearing to require the Respondent to show cause why the credential should not be suspended, Alternatively, the Commission may bring additional charges of unprofessional conduct under RCW 18,130.18.0(9), In either case, the Respondent will be afforded notice and an opportunity for a hearing on the issue of non-compliance.
Dated this 31st day of July, 2007.
Medical Quality Assurance Commission
GLBERT RODRIQUEZ, M.D.
This page was revised on July 1, 2014.