Complainant, as an Amended Petition to Revoke Probation against David Alan Steenblock, D.O., alleges as follows:
1. The complainant, Linda Bergman, is the Executive Director of the Osteopathic Medical Board of the State of California (hereinafter the "Board") and makes this Amended Petition to Revoke Probation in her official capacity.
2. Respondent David Alan Steenblock, D.O. (hereinafter respondent "Steenblock") was licensed by the Board to practice osteopathy in the State of California on August 3, 1977, under Osteopath Certificate No. 20A4160. Said license is current and will expire on January 31, 1999.
3. Business and Professions Code section 3600 provides that the law governing licentiates of the Board is found in the Osteopathic Act (Initiative Measure, Stats. 1923, p. xciii, § 1 et seq.) and in Chapter 5, Division 2 of the Business and Professions Code relating to medicine. All further reference to the Osteopathic Act shall be to the provisions of Business and Professions Code section 3600 et seq.
4. Business and Professions Code section 3600-2 provides that the Board shall enforce those provisions of the Medical Practice Act identified as Article 12 (commencing with section 2220) of Chapter 5 of Division 2 of the Business and Professions Code as now existing or as hereafter amended as to persons who hold certificates subject to the jurisdiction of the Osteopathic Medical Board.
5. On or about August 19, 1993, Amended Accusation #91-1 was filed against respondent by the Board. As a result of that action, a Decision in Case No. 91-1, pursuant to Stipulation, issued and became effective on March 21, 1994. The Decision suspended respondent's certificate for nine months, stayed the suspension and placed respondent's certificate on probation for five years from the effective date of the Decision upon certain terms and conditions.
6. The disciplinary terms and conditions
of probation on respondent's license imposed in the Decision
in Case No. #91-1
include, inter alia, the following:
"4. Respondent shall reimburse the Board for its investigation and prosecution costs in the amount of $10,000. Payment of the costs may be made by monthly installments provided the entire $10,000 is paid on or before August 31, 1996.
5. Respondent shall obey all federal, state and local laws, and all rules governing the practice of medicine in California.
10. If respondent violates probation in any respect, the Board may revoke probation and carry out the disciplinary order that was stayed after giving respondent notice and the opportunity to be heard. If an Accusation and/or Petition to Revoke probation is filed against respondent during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final. Upon successful completion of probation, respondent's certificate will be fully restored."
7. Complainant incorporates herein by this reference the Preamble and each of the allegations set forth in paragraphs 1 through 6 hereinabove.
8. Respondent Steenblock, by failing to reimburse the Board $10,000 as required by Condition No.4 in the Decision in Case No. 91-1, has violated the terms of his probation and therefore subjected his certificate to the discipline set forth in said Decision.
9. Complainant incorporates herein by this reference the preamble and each of the allegations set forth in paragraphs 1 through 6 hereinabove.
10. Business and Professions Code section 2234(a) provides that the Division of Medical Quality shall take action against any licensee who is charged with unprofessional conduct which includes violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision in Chapter 12 of the Medical Practice Act, Chapter 5r Division 2 of the Business and Professions Code.
11. Business and Professions Code section
unprofessional conduct includes the employing, directly or indirectly the aiding, or the abetting of any unlicensed person to engage in the practice of medicine or any other mode of treating the sick or afflicted which requires a license to practice.
12. During 1995, respondent Steenblock employed and permitted Marie S. Losso, Sharon L. Lebo and Vera Lee Jackson to perform physical therapy upon patients at respondent's medical facility in Mission Viejo, California.
At all times material herein, Losso, Lebo and Jackson were not licensed as physical therapists by the ~Physical Therapy Examining Committee of the Medical Board of California. Respondent thereby violated Business and Professions Code section 2234(a) and 2264 by employing, aiding and abetting the unlicensed practice of physical therapy.
13. Respondent Steenblock, by violating Business and Professions Code sections 2234(a) and 2264 as described in Paragraph 12 hereinabove, has violated condition No.9 in the Decision in Case No. 91-1, and thereby subjected his certificate to the discipline set forth in said Decision.
14. Business and Professions Code section 125.3 provides that, in any order issued in resolution of a disciplinary proceeding before the Osteopathic Medical Board, the Board may request the Administrative Law Judge to direct a licentiate to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case.
Complainant requests an Order which provides for the recovery by the Board of the costs of investigation and enforcement of this case against respondent Steenblock, according to proof.
WHEREFORE, Complainant requests that a hearing be held on the matters alleged and that following that hearing the Board issue a Decision setting aside the previous probationary order in Case No. 91-1 against Certificate No. 20A4160, imposing the original order of ninth months' suspension of said certificate, providing for the recovery of costs of investigation and prosecution, and making such other orders as the Board deems necessary and proper.
Dated: March 9, 1998.
LINDA BERGMAN Executive Officer
Osteopathic Medical Board of
State of California
This matter came on regularly for hearing before Roy W. Hewitt, Administrative Law Judge ("ALJ") of the Office of Administrative Hearings, at Laguna Niguel, California on April 28 and 29, 1999, and December 1 and 2, 1999. Deputy Attorney General Timothy L. Newlove, represented complainant. Respondent, David A. Steenblock, appeared personally and represented himself. Respondent was assisted by Charles Benninghoff, Esq. during the April 28 and 29, 1999 hearings, and by William Moore, Esq. during the December 2, 1999 hearing.
Oral and documentary evidence was received, and the matter was submitted.
The Administrative Law Judge makes the following Factual Findings:
1. Complainant, Linda Bergman, brought the Petition to Revoke Probation, in her official capacity as the Executive Officer, Osteopathic Medical Board of California, State of California. Respondent timely filed his Notice of Defense, and the instant hearing ensued.
2. On August 3, 1977, the Osteopathic Medical Board of California ("board"), issued respondent Osteopath Certificate number 20A4160.
On August 19, 1993, the board filed
an Amended Accusation against
On March 21, 1994, respondent's license was suspended for nine months, the suspension was stayed, and respondent was placed on five years probation upon certain terms and conditions. Except for this discipline, respondent's license was in full force and effect at all times relevant to the instant proceedings.
3. The March 21, 1994 discipline was resolved pursuant to a "stipulation in settlement and decision." In that stipulation, respondent admitted violating the Business and Professions Code by failing to adequately document his examinations and treatment in the charts of two patients, and by failing to warn the family of one of his patients about possible side effects of iron injectable medication given the patient.
The relevant terms and conditions of respondent's probation are as follows:
"4. Respondent shall reimburse the board for its investigation and prosecution costs in the amount of $10,000. Payment of the costs may be made by monthly installments provided the entire $10,000 is paid on or before August 31, 1996.
5. Respondent shall obey all federal, state and local laws, and all
rules governing the practice of medicine in California.
10. If respondent violates probation in any respect, the board may revoke probation and carry out the disciplinary order that was stayed after giving respondent notice and the opportunity to be heard. If an Accusation and/or Petition to Revoke Probation is filed against respondent during probation, the board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final. Upon successful completion of probation, respondent's certificate will be fully restored."
4. A Petition to Revoke Probation was originally filed against respondent on June 20, 1997. Then, on March 9, 1998, an amended Petition to Revoke Probation was filed against respondent. Respondent was on probation at the times the acts alleged in the Petitions occurred, and when the Petitions were filed against him.
In the Amended Petition to Revoke Probation respondent is charged with violating his probation by failing to pay the $10,000 in cost recovery as required by probation condition number 4 and by violating probation condition number 5 by aiding and abetting the unlicensed practice of physical therapy. The Findings related to those charges are set forth below.
5. Respondent had not paid the $10,000 cost recovery to the board on or before August 31, 1996. The account had, however, been fully paid prior to commencement of the hearing in the instant case.
6. During 1995, respondent was, and currently is, operating a medical facility located at 26381 Crown Valley Parkway in Mission Viejo, California. Respondent's medical facility specializes in treating brain-damaged patients, mainly those who have experienced strokes. Over the years, respondent has become convinced that treating patients with Oxygen in hyperbolic chambers serves to reduce paralysis associated with strokes. Respondent's belief is based not only on medical literature, but also his training in Amsterdam, other training seminars, and his own, extensive, experience using hyperbolic chambers.
In conjunction with the use of hyperbolic chambers, respondent also uses physical therapy modalities in treating his patients. In 1995, under respondent's or another doctor's supervision, medical assistants used physical therapy techniques on brain injured patients to stimulate their brain centers.
7. Sometime prior to December 9, 1994, respondent purchased a U.S. Navy hyperbolic (recompression) chamber from the U.S. Navy. The chamber was a "multi-place" chamber, which allowed patients to be accompanied in the chamber by medical and/or support personnel. One of respondent's patients suggested placing a door on the chamber. with an observation window so that the chamber would be better lit, and so respondent could monitor his patients more easily from outside the chamber. Respondent liked the idea so he paid $4,000.00 to a Los Angeles engineering firm, which respondent believed had 50 years experience in building and modifying such high pressure chambers, to install a door on the Navy chamber. The door was installed and respondent used the chamber for six weeks without incident. Then, on December 9, 1994, at 6:30 p.m., the door failed and the oxygen in the chamber "blew out" the door. There was one patient in the chamber with her husband and two visitors sitting outside the chamber. Door fragments hit two people causing lacerations, which required stitches. The main section of the door struck a third person, causing a compressed skull fracture. Respondent was not responsible for the mishap; however, his clinic became the focus of extensive investigation, including investigations by board investigators.
8. As part of the investigation, one of the Division of Investigation investigators called respondent's clinic on May 11, 1995, and asked for a tour of respondent's facility, ostensibly because she was looking for treatment for her mother who had suffered a stroke. The investigator arrived at respondent's facility, as scheduled, on May 26, 1995 and was given a tour by respondent's wife, Barbara. As part of the tour, the investigator was shown around the physical therapy room. The investigator saw a licensed physician, Dr. May, in the room along with three other employees. The investigator saw one employee, later identified as Marie Losso, assisting a patient on an "electro machine."
The investigator again visited respondent's facility on July 11, 1995. The investigator again toured the physical therapy room and saw one of respondent's employees, Sharon Lebo, taking a patient's blood pressure and pulse. The investigator noticed that both Losso, whom she saw using physical therapy techniques on a patient during the May 26, 1995 visit, and Lebo, during this visit, wore name tags identifying them as "Physical Therapy Aides". The investigator checked Lebo and Losso's backgrounds and discovered that neither was licensed as a physical therapist. Accordingly, the investigator concluded Lebo and Losso were practicing physical therapy without licenses and decided to initiate an unannounced visit.
On September 28, 1995 Division of Investigation investigators arrived at respondent's facility and conducted a complete investigation. As a result of their investigation, three of respondent's employees, Vera Jackson, Marie Losso and Sharon Lebo, were arrested, prosecuted, and convicted, after jury trial, of violating California Business and Professions Code sections 2630 (Practicing Physical Therapy Without a License) and 2655.8 (Improper Use of Title "Physical Therapist Assistant"), misdemeanors. The convictions occurred in the Orange County Municipal Court, South Judicial District on March 20, 1997.
9. Technically, respondent is guilty of aiding and abetting the unlicensed practice of physical therapy. He did hire and train Jackson, Losso and Lebo in the use of physical therapy techniques on patients and directed them in the use of physical therapy techniques in treating brain injured patients. In respondent's defense, however, respondent believed that what he was doing was legal. In respondent's mind, Jackson, Losso, and Lebo were not performing as physical therapists. Rather, they were employing physical therapy techniques, or modalities, to stimulate patients' injured brain centers. In other words, the concentration of respondent's treatments was not on physical therapy, it was on brain stimulation. Respondent knew there was no prohibition against his personal use of physical therapy techniques on his patients even though he was not a licensed physical therapist, and he believed that it was equally proper for him to use medical assistants, who were not licensed physical therapists, operating under his or Dr. May's supervision, to perform physical therapy techniques on his patients.
Respondent's position has merit and the ability of a licensed osteopathic physician and surgeon to supervise unlicensed physical therapists to perform physical therapy techniques/modalities on patients as part of a brain stimulation treatment, is not clear. To respondent's credit he took several precautions to protect his patients and in an attempt to protect himself and his employees. First, respondent hired highly competent people to help him rehabilitate brain-injured patients. For instance, respondent hired Lebo to work in his clinic because he knew she had a Master's degree in Cardiovascular Physiology and that she had worked for a cardiac rehabilitation clinic in Philadelphia, Pennsylvania for one year, doing physical therapy on patients. Second, respondent and Dr. May hired and trained Jackson and Losso. All three of the medical assistants, Jackson, Lebo and Losso, worked under either respondent's and/or Dr. May's direct supervision. Either respondent and/or Dr. May were present at the clinic at all times when physical therapy techniques were used on their patients. Third, after the December 9, 1994 hyperbolic chamber mishap, respondent knew he was under close scrutiny by board investigators. Accordingly, he took great pains to ensure he was in full compliance with the rules and regulations governing his practice. He called "the board" and asked if he and medical assistants under his supervision could use physical therapy techniques. He was told that this was a "gray area" and that he could not be given a definitive answer. Respondent then hired a highly experienced and qualified consultant to advise and direct him in ensuring compliance with the rules and regulations, and to create a clinic name, stationary, name tags, etc. It was this consultant who decided to use the "physical therapy" sign on the therapy room and have the medical assistants wear "physical therapy assistant" name tags.
10. Further factors in mitigation of respondent's technical violation of Business and Professions Code section 2264 (aiding and abetting unlicensed persons to perform physical therapy) are as follows:
1) On September 29, 1995, the day immediately following the unannounced visit, during which the investigator(s) cited Jackson, Lebo, and Losso for practicing physical therapy without a license, respondent hired a licensed physical therapist to supervise the physical therapy treatments. From then until now, respondent has continually had a licensed physical therapist on the premises whenever physical therapy techniques/modalities are being used on patients.
2) As evidence that Sharon Lebo was qualified to perform and supervise others in performing physical therapy techniques on patients, she was licensed by the Physical Therapy Board of California as a physical therapist on February 9, 1996, only 5 months after the September 28, 1995 inspection. Accordingly, respondent's patients were never placed at risk.
3) Over the years, respondent came to believe that physicians could use unlicensed people to assist with patients. Respondent had seen California Medical Association literature which reinforced his belief that osteopathic aides and medical assistants could perform physical therapy on patients as long as they were supervised by a physician. The first indication that the board disagreed with respondent's belief was on September 28, 1995, when respondent's assistants were cited for unlicensed practice of physical therapy. Had the board merely sent respondent a letter advising him of their position on this issue he would have immediately rectified the situation by bringing himself into compliance with the board's opinion.
4) Rather than abandon his employees after they were cited and prosecuted, respondent elected to support them by paying over $50,000.00 for their defense.
11. The board's costs for the investigation and enforcement of this case against respondent totals $7,131.00. The ALJ, however, finds that the concerns about respondent's practice could have been addressed by less costly means.' For instance the board. could have notified respondent of its concerns about the use of unlicensed medical assistants to perform physical therapy and respondent could have discussed his position with the board and would have complied with the board's mandate(s). After all, this does appear to be a "gray area" and reasonable minds can, and probably do, differ as to the legality of this practice. Additionally, respondent has already suffered severe financial setbacks due to the previous administrative action against his license and due to the financial support he provided his employees during their criminal proceedings. In total, actions against respondent and his employees have cost respondent in excess of $200,000.00.
Based upon the foregoing Factual Findings, the Administrative Law Judge makes the following Legal Conclusions:
1. Technically, cause exists for revocation of respondent's probation because, based on Findings 5, 6, 8 and 9, respondent violated probation by failing to timely pay $10,000.00 in cost recovery resulting from his previous discipline, and by violating Business and Professions Code sections.2234 (a) and 2264 (aiding and abetting unlicensed practice.) [Footnote: Whether respondent's employees were, in fact, practicing physical therapy without license was not an issue in this hearing since a jury had already made that determination. (See Finding 8.) Accordingly, the ALJ in the instant proceedings concluded he was collaterally estopped from allowing re-litigation of that issue. Since the ALJ ruled he was bound by the jury determination that respondent's employees were practicing physical therapy without licenses, the only remaining issue, concerning this allegation, was whether respondent aided and abetted his employees in engaging in the conduct the jury concluded was the unlicensed practice of physical therapy. The answer to that question is, yes.]
2. Based on Finding 11, the reasonable costs of the investigation and enforcement of this case against respondent recoverable by the board, pursuant to Business and Professions Code section 125.3, is reduced to $3,500.00.
3. In view of Findings 4, 5, 6, 7, 8, 9, 10 and 11, the ALJ in the present instance. concludes that at all relevant times, respondent was acting in good faith and at no time were his patients at risk of receiving substandard treatment. Respondent was, and currently is, intent on respecting the board's mandates and on complying fully with the laws, rules, and regulations governing his practice. Accordingly, the legitimate purposes of disciplinary proceedings, to protect the public and rehabilitate the practitioner, would not be furthered by disciplining respondent. In essence, prosecution of this action itself has served as additional discipline. This is so because one of the terms of respondent's prior probation provides: "If an Accusation and/or Petition to Revoke Probation is filed against respondent during probation, . . . the period of probation shall be extended until the matter is .final." Accordingly, even though respondent's probation should have terminated .on March 20, 1999, he will be on probation until the effective date of the decision in the instant matter. As a result, respondent will have served almost one additional year of probation as a result of these proceedings. Additionally, as set forth in Finding 11, respondent has suffered financially as a result of proceedings against him and his employees.
The Petition to revoke probation is dismissed without imposition of further discipline.
Respondent shall pay the board $3,500 as reimbursement for the costs of investigation and enforcement of this action within 180 days of the effective date of this decision unless the board, or its designee, agrees, in writing to other payment arrangements.
Dated: December .20, 1999
ROY W. HEWITT
Administrative Law Judge
Office of Administrative Hearings