Golob v. Arizona Medical Bd. of State

• Decision Date: 05 February 2008
• Docket Number: No. 1 CA-CV 07-0006.,1 CA-CV 07-0006.
• Citation: Golob v. Arizona Medical Bd. of State, 176 P.3d 703, 217 Ariz. 505 (Ariz. App. 2008)
• Parties: Deborah S. GOLOB, M.D., Plaintiff/Appellant, v. ARIZONA MEDICAL BOARD OF THE STATE of Arizona; Timothy C. Miller, J.D., Executive Director, Arizona Medical Board, Defendants/Appellees.
• Court: Arizona Court of Appeals

176 P.3d 703

217 Ariz. 505

Deborah S. GOLOB, M.D., Plaintiff/Appellant, v. ARIZONA MEDICAL BOARD OF THE STATE of Arizona; Timothy C. Miller, J.D., Executive Director, Arizona Medical Board, Defendants/Appellees.

No. 1 CA-CV 07-0006.

Court of Appeals of Arizona, Division 1, Department D.

February 5, 2008.

Hendrickson & Palmer, P.C., By Adam P. Palmer, Phoenix, Attorneys for Plaintiff/Appellant.

Terry Goddard, Attorney General, By Anne W. Froedge, Assistant Attorney General, Phoenix, Attorneys for Defendants/Appellees.

OPINION

EHRLICH, Judge.

¶ 1 Deborah S. Golob, a physician licensed by the State of Arizona, appeals the superior court's judgment upholding a Decree of Censure and other sanctions imposed on her by the Arizona Medical Board (the "Board"). The Board acted after finding that Dr. Golob had issued prescriptions over the internet without conducting a physical examination of the individual for whom the medicine was authorized or without previously establishing a physician-patient relationship. We reject Dr. Golob's challenges to the sufficiency of the evidence and to certain statutes, and we therefore affirm the judgment against her.

FACTUAL¹ AND PROCEDURAL BACKGROUND

¶ 2 Between February 24, 2004, and April 14, 2005, Dr. Golob worked for Secure Medi-cal, Inc., from a cubicle in Low Cost Pharmacy in Tempe, Arizona. This small workplace near the front of the pharmacy contained a computer terminal but none of what the Board later described as any "other usual appurtenances relating to the practice of medicine."

¶ 3 In a letter dated June 30, 2004, the Arizona State Board of Pharmacy ("Pharmacy Board"), after an investigation, notified the Board that Dr. Golob was issuing prescriptions over the internet based upon online questionnaires completed by individuals desirous of those medicines. The Pharmacy Board's director opined that Dr. Golob was violating Arizona Revised Statutes ("A.R.S.") § 32-1401(27)(ss) (Supp.2006),² which defines "[u]nprofessional conduct" to include "[p]rescribing, dispensing or furnishing a prescription medication ... to a person unless the licensee first conducts a physical examination of that person or has previously established a doctor-patient relationship."

¶ 4 The Board's ensuing investigation confirmed that Dr. Golob had been issuing prescriptions for medicines based upon individuals' answers to internet questionnaires, supplemented on occasion by those persons' responses to additional questions asked of them by operators via the internet or the telephone. The prescriptions approved by Dr. Golob were filled by Low Cost Pharmacy. The individuals paid a charge for the questionnaire and for the medicine. Dr. Golob received a salary from Secure Medical.

¶ 5 Most of Dr. Golob's prescriptions were for erectile dysfunction; others were for pain, cold sores and contraception. Indeed, the superior court found, Dr. Golob wrote more than 9000 prescriptions between February 24, 2004, and July 2, 2004,³ rejecting relatively very few requests during that same time. Dr. Golob performed no physical examinations; in fact, she had no face-to-face contact with any of the individuals for whom she prescribed medicine.

¶ 6 The Board Staff Investigational Review Committee determined that Dr. Golob had "committed unprofessional conduct." The Board then reviewed the evidence obtained during its investigation and conducted a formal interview of Dr. Golob on April 14, 2005. It found that the appropriate "standard of care required [Dr. Golob] to prescribe prescription only medications over the internet to patients with whom she had an appropriate physician-patient relationship" (Finding 24) and that she had "deviated from the standard of care because she prescribed prescription only medication over the internet without appropriate physician-patient relationships" (Finding 24),⁴ adding that "[t]here was potential harm to the patients to whom [Dr. Golob] issued prescriptions because without the appropriate physician-patient relationship the patients may have been prescribed improper or dangerous medications" (Finding 25). The Board concluded that Dr. Golob's conduct was unprofessional as defined by A.R.S. § 32-1401(27)(q) ("Any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.") and (ss), and entered its Findings of Fact, Conclusions of Law and Order. In its Order, Dr. Golob was "issued a Decree of Censure for issuing prescriptions on the internet with[out] conducting a physical examination or having previously established, a doctor-patient. relationship." The Board also placed Dr. Golob on probation for five years; included as terms and conditions of that probation were the payment of a $10,000 civil penalty and the suspension of Dr. Golob's license for a period of no more than twelve months unless, within that time, she completed twenty hours of continuing medical education in medical ethics in addition to the hours required for a biennial renewal of her license.⁵ Finally, the Board retained jurisdiction for the term of probation to conduct random chart reviews of Dr. Golob's records and to impose additional remedial or disciplinary measures if it deemed such action to be appropriate.

¶ 7 Dr. Golob's Petition for Rehearing/Alternatively Petition for Review was denied by the Board. She filed a complaint for judicial review in superior court. A.R.S. § 12-905(A) (2003). The court affirmed the Board's order, and this appeal followed.

DISCUSSION

A. Subject-Matter Jurisdiction

¶ 8 A threshold issue presented by Dr. Golob is whether the Board had subject-matter jurisdiction to discipline her, a question of law that we review de novo. Murphy v. Bd. of Med. Exam'rs, 190 Ariz. 441, 446 n. 8, 949 P.2d MO, 535 n. 8 (App.1997). Dr. Golob contends that subject-matter jurisdiction depends on the patient's location at the time the prescription is dispensed and that the Board lacked evidence that she wrote any prescription for a patient located in Arizona.

¶ 9 The Board may investigate whether "a doctor of medicine has engaged in unprofessional conduct or provided incompetent medical care," A.R.S. § 32-1403(A)(2) (2002), Whether the unprofessional conduct "occur[s] in this state or elsewhere." A.R.S. § 32-1401(27). Dr. Golob was a doctor of medicine licensed to practice medicine⁶ by the State of Arizona. She lived in Arizona, and she reviewed individuals' responses to internet questionnaires and prescribed medicine for those persons from her workspace in Arizona. These facts alone are sufficient to confer jurisdiction on the Board.

¶ 10 Additionally, at least some of the individuals for whom Dr. Golob prescribed medicine were in Arizona by her own admission. Although Dr. Golob now claims that no evidence supports the Board's finding that she reviewed the questionnaires of Arizona individuals or issued prescriptions to Arizona residents, at the Board's formal interview of her, she testified that her patients came from "all 50 states" as well as "from Europe and the Caribbean." Therefore, she must have treated at least one patient from Arizona. The Board's lawful exercise of its jurisdiction is clear.

B. Sufficiency of the Board's Evidence

¶ 11 Dr. Golob contends that the Board's Findings 24 and 25 lack adequate evidentiary support. In reviewing a judgment upholding an administrative agency's decision, we independently study the record to assess whether substantial evidence supports the agency's action. Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 557 ¶ 7, 48 P.3d 505, 507 (App.2002). We do not "substitute [our] judgment for that of the agency on factual questions or matters of agency expertise." Id. Indeed, "we give great weight to an agency's interpretation of the statutes" that it is charged with implementing. Sanderson Lincoln Mercury, Inc. v. Ford Motor Co., 205 Ariz. 202, 205 ¶ 8, 68 P.3d 428, 431 (App.2003). Ultimately, we will affirm the agency's action unless we conclude that its decision "is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." A.R.S. § 12-910(E) (2003); accord Webb, 202 Ariz. at 557 ¶ 7, 48 P.3d at 507; Lathrop v. Ariz. Bd. of Chiropractic Exam'rs, 182 Ariz. 172, 177, 894 P.2d 715, 720 (App.1995).

¶ 12 The record sufficiently supports the Board's Findings 24 and 25 that Dr. Golob deviated from the requisite standard of care by prescribing medicine over the internet for individuals with whom she had not established an appropriate physician-patient relationship and that there was "potential harm" to those persons because they "may have been prescribed improper or dangerous medications." The standard of care as found and applied by the Board is embodied in A.R.S. § 32-1401:

27. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere * * *

(q) Any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.

* * *

(ss) Prescribing, dispensing or furnishing a prescription medication or a prescription-only device as defined in [A.R.S.] § 32-1901 to a person unless the licensee first conducts a physical examination of that person or has previously established a doctor-patient relationship....[⁷]

¶ 13 Dr. Golob admitted that in no case did she conduct a physical examination of a person for whom she prescribed medicine. She contends that she fulfilled the alternative statutory requirement that there be a "previously established ... doctor-patient relationship" by in each case accepting a consultation fee and reviewing the individual's responses to the questionnaire, occasionally directing an operator to ask the person additional questions, before prescribing medicine.⁸ This assertion has no merit.

¶ 14 We will accept for the purpose of Dr. Golob's argument her proposition that an individual's payment, apparently to Secure Medical, for a questionnaire...