BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF.CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation ) ·Against: )

) )

Efrain Diego Gonzalez, M.D. ) )

Physician's and Surgeon's ) Certificate No. C 52340 )

) Respondent ) .··

Case No. 800-2017-030454

iDECISION

The attached Proposed Decision is hereby adopted as the Decision and Order of the Medical Board of California, Department of Consumer .Affairs, State of California.

This Decision shall become effective at 5:00 p.m. on April 13, 2018.

IT IS SO ORDERED March 16, 2018.

MEDICAL BOARD OF CALIFORNIA

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Petition for Reinstatement of:

EFRAIN DIEGO GONZALEZ, M.D.

Physician's and Surgeon's Certificate Number C 52340

Petitioner.

Case No. 800-2017-030454

OAH Case No. 2017090365

PROPOSED DECISION

On January 19, 2018, Administrative Law Judge (ALJ) Marilyn A. Woollard, Office. of Administrative Hearings (OAH), State of California, heard this matter in Sacramento, California. -

Deputy Attorney General Mara Faust represented the Medical Board of California (Board).

Paul Chan, Attorney at Law, represented petitioner Efrain Diego Gonzalez, M.D., who was present.

Oral and documentary evidence was presented. At the conclusion of the hearing,' the record was clDs·ea and fhe rflattetWas submitted for-d-ecisi()ri on fa:imary 19; 20T8. -

FACTUAL FINDINGS

1. On May 24, 2006, the Board issue~ Physician's and Surgeon's Certificate Number C 52340 to petitioner.

2. Accusation/First .A..mended Accusation: On September 9, 2011, in Case Number 12~2010-206925, the Board filed an Accusation against petitioner. On December 31, 2012, the Board filed a First Amended Accusation against petitioner, alleging 56 violations of the Medical Practice Act in his treatment of 15 cosmetic surgery patients,

. between October 2008 and August 2012. The alleged causes for ~iscipline were for gross

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negligence, incompetence, and repeated negligent acts (Bus. & Prof. Code, § 2234, subds. (b), (c) and (d)); failure to maintain adequate medical records (Bus. & Prof. Code,§ 2266); aiding or abetting the unlicensed practice of medicine (Bus. & Prof. Code, § 2264); dishonest or corrupt acts (Bus. & Prof. Code,§ 2234, subd. (e)); and dissemination of false or misleading information concerning professional services (Bus. & Prof. Code, § 651).

3. Interim Suspension: On March 25, 2013, an Order Granting Petition for Ex Parte Interim Suspension Order (ISO) was i~sued, immediatelysuspending petitioner's physician's and surgeon's certificate. On April 25, 2013, following a noticed hearing, a Decision and Order on Petition for Interim Suspension was issued, granting an ISO and suspending petitioner's physician's and surgeon's certificate pending final decision on the First Amended Accusation.

4. License Surrender/Decision: On December 5, 2013, petitioner signed a Stipulated Surrender of License and Order. Petitioner neither admitted nor denied the allegations, but agreed that "at a heaiing Complainant could establish a factual basis for the charges in the First Amended Accusation and that those charges constitute cause for discipline."

On December 30, 2013, the Board issued its Decision, by which it adopted the Stipulated Surrender of License and Order, effective January 6, 2014. Pursuant to this Decision, in any petition for reinstatement, "all of the charges and allegations contained in First Amended Accusation No. 12-2010-206925 shall be deemed to be true, correct and

· admitted" by petitioner when the Board determines whether to grant or deny the petition. 1

5. The serious violations outlined in the First Amended Accusation which were deemed true include: (a) failing to properly address an infection after placing breast implants in a patient; (b) allowing an unlicensed person to place sutures on a patient to close a surgical site; ( c) using Propofol inappropriately during a plastic surgery procedure; ( d) performing a breast implant procedure that resulted in breast deformity; ( e) failing to document the type of breast implant used and its serial number; (f) placing a patient in deep sedation without the necessary safeguards in place; (g) failing to evaluate a surgical patient for the risks of deep vein thrombosis; (h) failing to conform his procedure to suit a patient's body habitus regarding placement of the nipple; (i) failing to properly intubate a patient in respiratory arrest; (j) closing a draining wound on a surgical patient; (k) failing to give adequate informed consent and advice to a patient to lose weight.prior to elective surgery; (1) resecting a patient's labia minora and tightening her vaginal introitus over-aggressively; (m) disregarding the path of blood supply in a breast implant procedure; (n) improperly implementing a trans-axillary breast augmentation incision/technique in a patient; and ( o) failing to preserve blood supply to the abdominal flap during a surgical procedure, and·

1 As a consequence of his discipline by the Board, petitioner's membership in the American College of Surgeons was suspended (October 5, 2013) and then revoked (February

. 7, 2014). Following this Decision, effective June 19, 2014, petitioner was excluded from Medicare, Medicaid and. all other Federal Health Care Programs.

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causing direct and indirect damage to the blood supply of the nipple/areolar complex on the -breasts of a patient during a breast augmentation procedure.

6. Petition: On February 23, 2017, the Board received the Petition for Reinstatement (Petition), with supporting documents, including petitioner's narrative statement, letters of recommendation, and certificates of continuing medical education (CMEs). In his Petition, p~titioner disclosed that he had been convicted of a criminal offense, placed on criminal probation or parole, disciplined by another medical board and had civil malpractice claims filed against him.

7. In his Narrative Statement, petitioner explained that he surrendered his medical license because he "had multiple complaints of negligence while practicing cosmetic surgery" and "was also convicted criminally as a result of the conduct." Petitioner indicated that, after reflecting on his past conduct, "I know that I made poor decisions and exercised bad judgment. I fully accept responsibility for what I did and the patients that were harmed. I have acc:::epted responsibility for my conduct and gained tremendous insights." Petitioner further advised that, if reinstated, he would "make serious changes" to his medical practice and that he had "no plans to practice cosmetic surgery ever again. . . . l plan to practic~ either gynecology or wound care. I want to contribute to society. I believe that I still can help treat patients and be a positive contributing member of the medical board." Petitioner indicated that his criminal conviction had been reduced to a misdemeanor and dismissed. Rehabilitative efforts included psychological and psychiatric evaluations, completion of multiple CME courses as well as PACE, and regular reading of the Journal of Obstetrics and Gynecology.

8. Conviction Documents: In 2013, in People v. Efrain D. Gonzalez and Yessennia Candelaria, Superior Court of California, Placer County Court Case Number 62-121259A, petitioner and his wife were charged with multiple felonies involving multiple patients, arising out of their cosmetic surgery practice. Petitioner ultimately pled to two felony counts of conspiracy to practice medicine without a license, in_ violation of Business and Professions Code section 2052, subdivision (b), and one felony count of tax evasion, in violation of Revenue and Taxation Code section 19706. Charges against his wife were dismissed. -

On May 7, 2015, petitioner was sentenced to one year of formal probation, and ordered to se1've 90 days in county jail, with possibility of alternative sentencing or release. Petitioner was ordered, inter alia, not to have contact with any of the alleged victirns, except concerning pursuit of pending civil claims, and "to cooperate with the Franchise Tax Board [FTB] in order to determine the amount of taxes owed, and to file amended tax returns if the [FTB] deems necessary." Petitioner was ordered to pay restitution to the victims "who do not have civil claims pending" in the total amount of $100,000, and to pay fines and fees of $1,560.

9. Petitioner submitted the following orders issued by Piacer County Superior Court in Case Number 62-121295A with the Petition: (1) a May 12, 2016 Order Terminating

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Probation, and Granting Motion to Reduce the Crimes to Misdemeanors, pursuant to· Penal Code sections 1203.3 and 17, subdivision (b);· and (2) a June 30, 2016 Order for Dismissal of the conviction.

10. Recommendation of Martin Aviles, M.D.: In support of his request for reinstatement, petitioner submitted the undated letter of Martin Aviles, M.D., FAGOC, of the Natchitoches Women's Care Center in Louisiana. Dr. Aviles declared under penalty of perjury that he has known petitioner for nearly 25 years and_ that they were classmates at medical school and roommates. Dr. Aviles considers petitioner to be both a friend and a colleague.. Dr. Aviles reported that he and petitioner have had numerous telephone calls in which they talk about surgical cases and patient care, arid that"[ sic] always demonstrates a high level· of knowledge and patient car_e."

Dr. Aviles also noted that, over the past five years, he has witnessed petitioner's "anguish for his suspension." He expressed his belief that petitioner would "do everything in his power to correct any issues that the Board considers necessary" and th~t petitioner "is in the best disposition [sic] to provide the best quality of care for the people of California."

11. Recommendation of Jeffrey A. Swetnam, M.D.: In support of his request for reinstatement, petitioner submitted the undated letter of Dr. Swet:n,am, M.D., FACS, FAACS, of Swetnam Cosmetic Surgery, PLLC, in Fayetteville, Arkansas. Dr. Swetnam noted that he has been petitioner's friend and colleague for nearly 10 years. They met at a national meeting of the American Academy of Cosmetic Surgery (AACS), where petitioner presented a paper. Dr. Swetnam later attended an AACS course taught by leading cosmetic surgeons. During this meeting, Dr. Swetnam "was able to observe [petitioner's] surgical and patient skills." In his observation, petitioner "has always been oriented toward a high level of patient care and toward the advancement of Cosmetic Surgery."

Dr. Swetnam acknowledged that he did not know in detail all of the circumstances that led to the "suspension" of petitioner's license. He·wrote that petitioner "feels remorse and has sought to correct any issues that would cause doubt by the board." He noted that they have spoken on numerous occasions over the past several years about petitioner's desire to request reinstatement of his license. Dr. Swetnam wrote that he:· "fully support[ s] this quest. I have no doubts about his integrity, honesty, or surgical skill and recommend highly his re-instatement." He expressed his strong belief that petition~r "will do his best to provide quality care to the citizens of California if a decision to re-instate his license is made."

12. Senior Investigator Chris Jensen was assigned to the matter. He verified the letters of recommendation, interviewed petitioner, gathered and summarized relevant documents, and prepared a report on the petition signed August 11, 2017.

In verifying these letters of recommendation, Investigator Jensen provided the authors with the public documents related to petitioner's license surrender. Dr. Aviles advised that he had previously discussed most of these cases in detail with petitioner. He was not aware of some of the cases, but he continued to support reinstatement after reviewing the public

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docmnents. Dr. Aviles provided additional information which reflected his awareness of I

petitismer's activities toward rehabilitation. Dr. Swetnam was also already familiar with most bf the cases described in the documents; petitioner had shared them with him and expre'ssed remorse and a commitment to rehabilitation. Petitioner had informed both physibans that, if his license were to be reinstated, he would not perform cosmetic or plastic surgery, but would return to practicing obstetrics and gynecology (Ob/Gyn) after retraining.

: 13. Licensure in Puerto Rico: On July 12, 1995; the Puerto Rico Board of Medical Licen:sure and Discipline, Oficina de Reglamentacion y Certificacion de los Profesionales de la Salud (ORCPS) issued License Number 12077 to petitioner. ORCPS summarily suspended petitioner's license on April 18, 2007, and then suspended it forfive years on April '9, 2008, based on petitioner's conduct of: "announcing and practicing the specialty of plastic and reconstructive surgery without being properly certified and this could cause harm to patients by not having the required preparation and constitutes unlawful practice of medicine." ·

On January 9, 2013, the Puerto Rico Board of Medical Li censure and Discipline/ORCPS informed petitioner that the renewal of License Number 12077 "is null and void, due to the fact that your license has been suspended since the year of 2007 by the Boarq of Medical Examiners, and subsequently in the year of 2011, the Board denied your reque~t for reinstatement for which you had no medical license in Puerto Rico during the triennium of 2010~2013."

: 14. National Practitioner Data Bank (NPDB): Investigator Jensen reported the results of his query on petitioner with the NPDA .. These results confirm that 15 medical malpractice payouts were made on petitioner's behalf for disputed claims from 2000 through 2015. '. Eleven of the 15 settlements were occasioned by petitioner's cosmetic surgery work in Puert6 Rico or California. In 2015, $300,000 in malpractice claims were paid out on · petiticiner's behalf for: a $151,200 payment to a 34-year olci patient undergoing tummy tuck and bteast augmentation who' went into respiratory arrest during surgery, on whom petitioner perfoirned emergency tracheostorny; a $36,000 payment for failure to monitor a patient on whorri petitioner performed bilateral breast lifts and breast and buttocks augmentation; a $'76,800 payment to a brea.st augmentation patient allegtng failure to·ootain inform-ed-corisertt and t~ perform agreed-upon procedure; and a $36,000 payment to a 32-year old patient for allegea wrong breast implant procedure.

: Three of petitioner's malpractice payments involved Ob/Gyn cases ($50,000 paid Febru~ry 26, 2014, to settle a 1998.cas_e [stillbirth]; $100,000 paid June 22, 2007, to settle a 2005 ~ase [full term infant with respiratory distress on delivery died 15 days later]; and $85,0IDO paid November 9, 2000, to settle a 1997 case [baby died several months after delivery with respiratory distress].

15. Continufog Medical Education: Prior to his license surrender, petitioner voluntarily participated in the Physician Assessment and Clinical Education (PACE) Program through the University of San Diego, School of Medicine. He completed the two-

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day Phase I program on September 16 and 17, 2013, then returned and completed the five­day Phase II program from November 4-8, 2013, with the UCSD Division of Plastic Surgery. He received 40 CME AMA PRA Category 1 Credits for the Phase II program.

Based on his license surrender, petitioner is not required to complete any fixed number of CME units per year; however, he has done so voluntarily. He provided CME certificates with his Petition for 30 AMA PRA Category 1 CME credits completed in January 2017 (Burnout in Physicians; Low Back Pain; Parkinson Disease); and 21 CME credits completed in March 2017 (Online Professionalism and Ethics; Prescribing Opioids, Providing Naloxone, and Prev:enting Drug Diversion; and Prescription Opioids: Risk Management and Strategies for Safe Use). He later provided Investigator Jensen with CME certificates for 150 CME credits earned in 2015, on topics which included medical marijuana, ulcers, cancer screening, diabetes, chronic pain, and Ob/Gyn-related issues.

Petitioner's Testimony

16. Petitioner is 56 years old. He and his wife, who is also a physician, married in 1995 and they have two sons, aged 16 and 19. Petitioner went to medical school at the Universidad Central Del Caribe in Bayamon, Puerto Rico, from which he graduated in 1991. From 1991 through 1994, petitioner interned and did part of his residency at the Catholic Medical Center in Brooklyn and Queens, New York. He then completed his last year of residency in obstetrics and gynecology at Ponce District Hospital in Ponce, Puerto Rico.

In exchange .for a scholarship to medical school, petitioner agreed to work for four years in a rural clinic (known as a "330 Clinic") serving indigent patients in Puerto Rico. He obtained his Puerto Rican medical license in 1995 and spent the next four years working in this clinic, with a primary focus on the practice of obstetrics and gynecology. He eventually created his own medical clinic using this model. At some point, petitioner began performing cosmetic surgeries. This practice consisted primarily of performing breast augmentations and lifts. In approximately 2000, petitioner became certified by the American Board of Obstetrics and Gynecology. He later switched his focus to cosmetic surgery and allowed this board-certification to expire in 2010. ·

17. Petitioner and his wife obtained their California medical licenses in 2006. They moved to California in December 2006, after Puerto Rico passed a law limiting the practice of cosmetic surgery to licensed plastic surgeons. Petitioner acknow~edged that his Puerto Rico medical license was suspended for the unauthorized practice of plastic surgery, which he did for "several months" after passage of this new law.2 Once in California, his

2 In hi·s interview with Investigator Jensen, petitioner explained that he lost his Puerto Rico license due to "an accusation of plastic and cosmetic surgery" which he did not defend. He then agreed with Mr. Jensen's statement that the suspension was "based on California's action." Petitioner credibly testified that this was a mistake and he had not listened carefully to the _question.

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plan was to offer cosmetic surgery at a more affordable price to members of the Hispanic community.

18. In the summer of 2007, petitioner opened a cosmetic surgery practice in Rocklin called Advanced Medical Spa (AMS) for private pay patients. Petitioner would check the "going prices" for various procedures and lower the price by 20 percent. He performed breast augmentations and reductions, hair transplants, tummy tucks, vaginal rejuvenation and calf implants. These outpatient procedures involved the use of conscious sedation. As the practice grew~ petitioner hired registered nurses (RNs), including RN anesthetists; he also had several surgical technicians and two or three medical assistants on staff. Petitioner's wife, who was trained as a pediatrician, took courses in conscious sedation and began to assist him. Petitioner worked at AMS from 2007 through 2013, when the ISO was issued. He estimated that by the end of this time period, he was performing approximately 20 cosmetic surgery procedures a month.

In 2012, petitioner joined and became certified by the American Academy of Cosmetic Surgery (AACS). Prior tb joining, petitioner completed the required minimum 1,000 cosmetic procedures and 100+ CME units in cosmetic surgery. He had also engaged in peer-to-peer training by scrubbing in with other cosmetic surgeons, including during a one-week stint at a cosmetic surgery practice in Argentina. Petitioner realizes that, unlike his Ob/Gyn board certification, AACS is not accredited by ACGME for post-graduate medical education and not recognized by the Board. .

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19. Petitioner explained that, as AMS's practice grew, he got caught up and . allowed himself to do too many procedures. He became "cocky" and "overconfident" in some procedures and did more procedures than he could handle. This is when the problems began. There were some patient complaints, but he tried to justify errors by telling himself that "everyone has complications" and that he would "do better next time." In petitioner's opinion, the typical personality of surgeons is "a bit narcissistic" and there is a tendency "to think we can do anything." Ill hindsight, he realizes he should have taken the time to do a one-year fellowship before accepting more complicated procedures, and he acknowledged that he had the option of accepting fewer and less complicated cases, but did not do so. More compiaints occurred in cases ·ofbreast augmentation, whose procedures changed more frequently. Petitioner undertook more complicated tra.ns-axillary procedures and the rarely­performed laparoscopic augmentation. Because he had trained in laparoscopic procedures as an Ob/Gyn, petitioner believed he could do this. In hindsight, he realizes this was a mistake.

20. Petitioner explained that he surrendered his license after the filing of the First Amended Accusation because he "thought it was the right thing to do at the time." He wanted to take responsibility, admit to wrongdoing and improve as a human being and as a physician. He last practiced medicine on March 14, 2013. He and his wife were arrested at their home in a gated community on March 15, 2013, in a high profile case cover,ed by the Sacramento Bee.

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21. Petitioner is currently self-employed. He is a part owner of Organic Medical Grow, Inc. (OMG) which manufactures cannabis in Puerto Rico, and is soon to open a dispensary. He is also involved in two other marijuana-related companies in Puerto Rico, which legalized this business several years ago. Petitioner initially became involved in OMG by consulting with Califomia.'s legalized medical marijuana growers to assist in OMG's start up. A medical license is not required for this workin Puerto Rico. He is working to recruit medical schools to conduct research on whether marijuana can be substituted for opioids.

Petitioner also works as a consultant with PDP Health Management, a successful medical clinic in Puerto Rico, with which he has been involved for the past 20 years. He is a part owner and the past Chief Executive Officer (CEO) of PDP. He and his wife shared the role as PDP's CEO until five months ago. Petitioner continues to live in California and visits Puerto Rico three-to-four times a year for business.

22. Petitioner wishes to renew his license because he likes to practice medicine. He has never relied on his medical career as his main salary and does not need the job. He wants to help care for patients, particularly underprivileged people, because this is the patient population he has focused on most of his life. Petitioner emphasized that he would not return to cosmetic surgery if reinstated. He wants to return to his "roots" and practice as an

. Ob/Gyn. He also acknowledges his need for retraining in this field, because he has not practiced in this area for 10 years. Several friends have offered to have him join their practices and retrain with them. In the alternative, petitioner would practice general medicine.

23. Petitioner acknowledged that he allowed his surgical assistant to suture patients. He did not know this was unlawful, and this was the basis for two of his felonies. Regarding his tax evasion felony, petitioner noted that he had paid all taxes and that the FTB later determined that he did not owe any additional taxes. He paid $100,000 in restitution to be shared by all his patients who had not filed a civil claim against him, and he also either settled pending malpractice claims against him or has an offer pending to pay such claims.

24. When questioned about his efforts to settle with two former patients (MLP and BH)3 who came to the hearing, petitioner indicated that AMS's bankruptcy had the unintended effect of precluding MLP's action against him. When the appeals court granted MLP's motion to vacate the bankruptcy court's denial of her relief from the automatic stay in AMS's bankruptcy, petitioner instructed his attorney to settle with her. Petitioner acknowledged that he later sued MLP for harassing his children and that his lawsuit was dismissed as a SLAPP suit. 4

Former patientBH had a claim against petitioner arising from his care of her in May 2006, while he was practicing in Puerto Rico. Petitioner explained that BH's lawsuit against

3 Initials are used to protect patient confidentiality.

· 4 "SLAPP'' is the acronym for Strategic Lawsuit Against Public Participation.

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him was dismissed when he personally filed for bankruptcy, which was granted in 2011. It was not his intention for her suit to be dismissed and he would have settled with her. BH has communicated with petitioner, but he never responded as "she is always threatening me." His lawyer told him not to talk directly with patients. Petitioner expressed his willingness to settle with BH, "if it is reasonable. "5

·

Petitioner emphasized that he has always complied with restitution orders and that any dismissals which resulted from bankruptcy filings by him or AMS were "inadvertent and not intentional." He estimates that there are approximately 20 patients who still have unresolved cases relating to his medical treatment. He has instructed his lawyers to settle, even with patients who did not file a lawsuit against him, and believes that there are many outstanding offers to settle these cases.

25. Petitioner generally denied allegations in the First Amended Accusation that his patients were in sedation deeper than conscious sedation and explained that they used electroencephalograms to record the patients' brain waves and levels of consciousness. When asked if his wife had pled to having insufficient training in sedation, petitioner testified that he "did not know how his wife had pled" in her Board disciplinary action. He denied that his wife was doing surgery while on drugs and explained that she had nausea and he had given her an IV antiemetic. He acknowledged that his wife is currently restricted · from prescribing Schedule 2 or Schedule 3 narcotics, and indicated that, if reinstated, he would not write such prescriptions for her.

26. ·Petitioner has taken various steps to rehabilitate himself. Prior to his license surrender, he voluntarily completed the PACE program, Phase I of which required that he· retake the United States Medical Licensing Examination (MSMLE) (Part 3). Petitioner spent one month studying for this before attending Phase I. He then completed the one-week clinical program. Petitioner did this because, after the allegations, he wanted a review of his clinical competence and knew it would be significant if he wanted to return to practice. Overall, he found PACE to be helpful. He was aware that he received a passing score but never saw the narrative report until this hearing. After his license surrender, petitioner continued his self-study. He believes he has provided the Board with most of the CME certificates he has earned. Because he enjoys medidn·e, petitioner has also kept up oh medical literature, reading j9urnal or articles on the internet. He is engaged in his own

. research on the antiemetic use of marijuana in cancer patients; and he enjoys reading on general medicine topics.

5 For theJirst time at hearing, Board counsel offered documents in Spanish for the purpose of demonstrating that petitioner had directed his staff to falsify BR's signature on a consent form for arbitration in her 2006 lawsuit in Puerto Rico for damages relating to a tummy tuck that would not close. Petitioner denied ever directing anyone to do so.· The objection to these documents and to BH's proposed testimony was sustained. (Gov. Code,§ 11513, subd. (f); Evid. Code,§ 787.)

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27. Over the past year, petitioner has participated in therapy with psychiatrist Dr. Lee. (Finding 29.) He was motivated to do so because the circumstances around his . disciplinary- and. criminal cases caused a great deal of heartache and humiliation to him and to his family. Petitioner felt a great deal of regret and sorrow, both about the effects of the news stories on his sons and the harm to his patients, and he has experienced both depression and anxiety. He spent over a half million dollars on attorneys fees and the entire situation has taken a toll on him. Petitioner wanted to find ways to cope with the humiliation of being arrested. He has also learned how to meditate and uses this as a tool to deal with these issues. Dr. Lee initially prescribed antidepressant medkation to him, but then switched his· medication to an anti-anxiety II\.ediation. He took this medication for about 12 months. He went off it in the last few months and is doing fine. He has had a medical marijuana card, but did not use cannabis once he was on medication.

28. Petitioner explained that, in the beginning, he was resistant or in denial about his role in the allegations against him. He resisted the implication that he had done something wrong. Over time, he took responsibility and admitted his conduct when he surrendered his license. Petitioner believes he has benefited from insight-oriented behavior therapy. This therapy, coupled with meditation, has.helped him to "come to grips with the reality of [his] mistakes." He has found it to be "a humbling process to recognize his past mistakes," so he does not repeat them in the future.

Through this process, petitioner has made significant life-style changes. He works out daily at the gym, has lost weight, reduced his blood pressure and meditates 30 minutes each day. He was previously a workaholic, but now works five-to-six hours a day and does more with his personal life. He talked with Dr. Aviles and Dr. Svetnam regularly about these cases; this was another way for him to cope by sharing case histories with other physicians who could understand them better.

Petitioner understands that if his license is reinstated it would be subject to probationary conditions. He is willing to comply with any probation orders, including supervised practice, and he would be "more than happy" to repeat the PACE course with an appropriate focus on Ob/Gyn.

Petitioner's Other Evidence

29. Letter from Allison Lee, M.D.: Petitioner offered a September 19; 2017 letter from Dr. Lee, which was admitted and considered to the extent permitted under Government Code section 11513, subdivision ( d). 6 DL Lee is a psychiatrist in Granite Bay, California. She reported that she has treated petitioner on a monthly basis since January 24, 2017, for

6 Government Code section 11513, subdivision (d), provides in pertinent part that "hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions ... "

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psychotherapy and medication management. Dr. Lee offered the following assessment of petitioner:

He has been very cooperative and compliant with treatment and motivated to work toward change. I feel he has shown good insight and remorse into his past actions which led to legal difficultie~ in his cosmetic surgery practice. His symptoms have improved with a combination of medication, insight-oriented/ behavioral therapy and lifestyle changes. I believe that he would be appropriate to return to work in his former specialty of

_Ob/Gyn.

30. PACE Report: As reflected in the January 17, 2014 PACE Assessment Report, petitioner's overall results on Phase I were varied. He performed an adequate history and physical examination; knew how to safely limit and stage procedures; he showed a relatively simplistic·understanding and approach to breast enhancement; he diagnosed six of eight cases correctly, but two patients were put at risk for a poor outcome; and he otherwise· demonstrated good medical knowledge and clinical judgment. He performed in the 16th percentile on the Ethics and Communication examination, and at the 1st percentile on both the Mechanisms of Disease and the Surgery Clinical Science Subject exam.

Petitioner's Phase II took place at the UCSD Division of Plastic Surgery.· His overall results in Phase II were satisfactory. He "demonstrated appropriate basic knowledge of issues pertaining to the clinical cosmetic surgery cases that were discussed ... his general professionalism, communication skills, and ability to develop appropriate interpersonal relationships were satisfactory." Petitioner's overall performance on the complete PACE Program was a "Pass, Category 1" which "signifies a good to excellent performance in most or all areas measured and is consistent with safe practice and competency. No significant deficienci'es are noted."

Discussion

31. Petitioner's admitted violations of the .Medical Practice :Actfo fo·e First Amended Accusation are numerous and serious. In addition to the gross negligence, incompetence and repeated negligent acts indicated in Factual Finding 5, petitioner aided and abetted the unlicensed practice of medicine by: (1) allowing surgical technician Maureen Knott to suture patient C.P. at the end of a scar revision surgery (5th cause for discipline); and (2) by allowing Ms. Knott and m~dical assistant Katrina DeFazio to administer the antibiotic Mefoxin intravenously to patientH.M., both in his officearrd at H.M'·s home·(19th cause for discipline). Petitioner engaged in dishonest and corrupt acts by: (1) denying the existence of any problem and failing to truthfully assess patient K.M. 's obvious breast deformity resulting from his cosmetic surgery (12th cause for discipline); and (2) by advising patient.H.M. that he had performed a breast lift procedure when he did nothing to the underlying parenchyma to "lift" the breast tissue (18th cause for discipline). Petitioner disseminated false or misleading information by indicating in a 2010 and 2012 website

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advertising cosmetic surgery that he was "board-certified" in plastic surgery when his certification was as an Ob/Gyn (29th and 55th causes for discipline) ..

32. As reflected in his testimony and personal narrative, since he surrendered his license, petitioner has engaged in personal reflection, psychological and psychiatric therapy, continuing self-study in medicine and gainful employment. Petitioner provided evidence demonstrating important steps toward rehabilitation. Positive factors are his early admission and voluntary surrender of his license, his voluntary participation in the PACE Program, and his completion of many CME credits. He also demonstrated insight and remorse in his testimony, and he was particularly credible regarding the emotional impact his Board and criminal actions have had on his sons. Although he did not begin seeing her until shortly, before he filed the Petition, it is apparent that petitioner has benefitted from psychotherapy with Dr. Lee. At the same time, petitioner continues to deny certain established conduct, particularly that his patients were placed in deep sedation. His testimony that he did :o.ot know what his wife had pled to in her Board disciplinary action was not credible.

33. ·Petitioner has paid a significant amount in restitution and via malpractice settlements to many of the patients injured by his conduct. It is noteworthy that these payments were instrumental to the resolution of petitioner's criminal charges, which involved many additional patients not included in the Board action. Petitioner acknowledges that he has not resolved the claims of at least 20 of these patients. While indicating his intention to resolve these claims, he has nGt yet done so. Given the serious harms inflicted by his conduct, it cannot be determined by clear and convincing evidence that petitioner has sufficiently rehabilitated to warrant reinstatement of his license until restitution to these individuals has been made.

LEGAL CONCLUSIONS

1. Petitioner bears the burden of establishing his fitness for reinstatement of his surrendered medical license. (Evid. Code, § 500.) In a proceeding to restore a revoked or surrendered license, the burden rests on the petitioner to prove that he has rehabilitated himself and that he is entitled to have his license restored. (Flanz<;:r v. Bpard of Dental Examiners (1990) 220 Cal.App.3d 1392, 1398.) An individual seeking reinstatement must present strong proof of rehabilitation; which must be sufficient to overcome the former adverse determination. The standard of proof is clear and convincing evidence. '(Housman v. Board of Medical Examiners (1948) 84 Cal.App.2d 308, 315.)

2. The requirements for a petition for reinstatement are governed by Business and Professions Code section 2307. As applicable to this case alleging unprofessional conduct, the petition may not be filed until at least three years have elapsed since the effective date of the decision accepting the license surrender. (Bus. & Prof., § 2307, subd. (b )(1 ). ) This requirement is satisfied. As discussed in Factual Findings 4 and 6, the Board adopted petitioner's Stipulated Surrender of Lic~nse and Order on December 30, 2013, with

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an effective date of January 6, 2014. The Petition for Reinstatement was received by the Board on. February 23, 2017, more than three years after the Decision's effective. date.

3. The petition may not be considered while the petitioner is under sentence for any criminal offense, including during any period of court-imposed probation or parole, or while there is an ac~usation or petition to revoke probation pending against the person .. (Bus. & Prof., § 2307, subd. (g).) As discussed in Factual Findings 8 and 9, petitioner is no longer on probation and there are no pending disciplinary matters against him.

4. The reinstatement petition shall be accompanied by "at least two verified recommendations from physicians and surgeons licensed in any state who have personal knowledge of the activities of the petitioner since the disciplinary penalty was imposed;" (Bus. & Prof.,§ 2307, subd. (c).) As discussed in Factual Findings 10 through 12, petitioner submitted recommendations from physicians licensed .to practice medicine in Louisiana and Arkansas, whose recommendations were verified by Special Investigator Chris Jensen.

5. In reviewing the petition, the Board or the administrative law judge:

may consider all activities of thy petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitione,r' s activities during the time the license was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability ..•.

(Bus. & Prof. Code,§ 2307, subcl. (e).)

6. California Code of Regulations, title 16, section 1360.2, provides rehabilitation criteria for petitions for reinstatement. As applicable to this case, evidence of rehabilitation shall be evaluated by considering the following criteria: (a) the nature and severity of the acts or crimes under consideration; (b) evidence of any subsequent acts or crimes; ( c) the time that has elapsed since commission of the acts or crimes referred to above; and ( e) evidence, if any, of rehabilitation submitted by the petitioner. (Cal. Code Regs.,tit. 16, § 13602.)

7. As set forth in the Factual Findings and Legal Conc~usions as a whole, and particularly in Factual Findings 31 through 33, petitioner has not met his burden of establishing, by clear and convincing evidence, sufficient rehabilitation to allow reinstatement of his license to practice medicine at this time.

Ill

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ORDER

The Petition for Reinstatement of Licensure filed by petitioner Efrain Gonzales is DENIED.

DATED: February 20, 2018

I DocuSigned by:

L~=o_ MARILYN A. WOOLLARD Administrative Law Judge Office of Administrative Hearings

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