BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA. OAH No DECISION

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1 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Petition to Revoke Probation Against: LUIS PHILIP NUGENT, M.D. Physician's and Surgeon's Certificate No. G Respondent ~~~~~~~~~~~~- Case No OAH No DECISION 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 November 13, IT IS SO ORDERED: October 14, MEDICAL BOARD OF CALIFORNIA ~dev,~jh Panel B

2 BEFORE THE MEDICAL BOARD OF CALIFORNIA STATE OF CALIFORNIA In the Matter of the Petition to Revoke Probation Against: LUIS PHILIP NUGENT, M.D., Physician's and Surgeon's Certificate Number G Case No OAH No Respondent. PROPOSED DECISION This matter came before Samuel D. Reyes, Administrative Law Judge, Office of Administrative Hearings, in Los Angeles, California, on August 28, John E. Rittmayer, Deputy Attorney General, represented complainant Kimberly Kirchmeyer, Executive Director of the Medical Board of California (Board. Fredrick M. Ray, Attorney at Law, represented Luis P. Nugent, M.D., (Respondent. Complainant seeks to impose the stayed discipline of revocation for alleged violation of probation. Respondent contested the allegations, and presented facts in support of continued licensure. Oral and documentary evidence was received at the hearing and the matter was submitted for decision. FACTUAL FINDINGS 1. Complainant filed the Petition to Revoke Probation on July 15, 2014, in her official capacity. 2. Respondent graduated from the University of California, Irvine, School of Medicine, in He thereafter completed a five-year general surgery residency at Kaiser Foundation Hospital in Los Angeles, California. He holds board certification from the American Board of Surgery. Respondent has been practicing general surgery for approximately 28 years.

3 3. On July 1, 1982, the Board issued Physician's and Surgeon's Certificate Number G to Respondent. The certificate expires July 31, 2015, unless renewed. However, as more fully set forth below, the certificate is suspended. 4. Respondent's certificate was suspended on an interim basis on December 3, 2009, pending a hearing on allegations to permanently discipline the certificate. An accusation was filed on December 17, 2009, alleging that grounds existed to permanently discipline the certificate based on allegations that on June 26, 2009, Respondent was driving while under the influence of alcoholic beverages, and that on August 1, 2009, he was inebriated while on the premises of a hospital in which he worked. On February 23, 2010, Respondent entered into a Stipulated Settlement and Disciplinary Order (2010 Disciplinary Order, in which he admitted the truth of the allegations in the accusation and in which he agreed that his certificate would be placed on probation for a period of five years on specified terms and conditions. The 2010 Disciplinary Order became effective on April 26, On June 26, 2012, a petition to revoke probation was filed, which was subsequently amended on August 21, 2012, alleging that Respondent failed to comply with the terms and conditions of probation. Specifically, it was alleged that Respondent failed to abstain from the use of alcohol, as demonstrated by positive tests on November 22 and December 23, 2011, and March 19 and July 2, 2012, and that he failed to submit to biological fluid testing on February 13, On March 20, 2013, Respondent entered into Stipulated Settlement and Disciplinary Order (2012 Disciplinary Order, in which he agreed that the charges and allegations in the amended petition to revoke probation, if proven at hearing, constitute cause for discipline, that complainant could establish the factual basis for the charges, and that Respondent would give up his right to contest the charges. Respondent also agreed to the revocation of his certificate, which revocation would be stayed for a period of seven years on specified terms and conditions. The Board approved the 2012 Disciplinary Order by Decision dated April 3, 2013, which became effective on May 3, Respondent's problems with alcohol abuse began in 2009, as he resorted to the substance to deal with the stress of a difficult year. He was primarily responsible for the care of his aging parents. His mother suffered from advanced Alzheimer's Disease and died that year. Respondent's father died soon after his mother. In December 2009, Respondent entered a threemonth inpatient rehabilitation program, which he successfully completed. He attended 90 Alcoholics Anonymous meetings in 90 days in early 2010, and has been regularly attending meetings since then. He suffered relapses in December 2011 and early to mid Respondent has since returned to his program of sobriety, to which he is committed. 7. The 2012 Disciplinary Order provided for cessation of practice in the event of a positive biological fluid test. Following the positive test results set forth in factual finding numbers 16 and 17, the Board ordered Respondent to cease practicing medicine, pending the outcome of proceedings to permanently discipline his license. 8. One of the conditions of probation, number 3, requires that "Respondent shall abstain completely from the use of products or beverages containing alcohol." 2

4 9. Another condition of probation, number 4, requires Respondent to submit to random biological fluid testing to test for the presence of alcohol and controlled substances. 10. During a meeting with his probation monitor, Respondent was informed about the Board's requirements regarding medications and other products containing alcohol. He acknowledged receipt of a disclosure regarding monitoring of ethylglucuronide (EtG and ethylsulfate (EtS. As noted in the document: "[EtG] and [EtS] are metabolites of alcohol that are excreted more slowly from the body than alcohol itself. They are therefore, better at detecting drinking and better at documenting abstinence. When being monitored with EtG/EtS, it is important, as in any monitoring situation, to be aware of items to avoid so that inadvertent 'incidental' exposure does not cause a positive test. In other words, it is important to know what items contain alcohol and to avoid them. With reasonable caution it is rare for 'incidental' alcohol exposure to cause a positive test. "It is YOUR responsibility to limit and avoid exposure to products and substances that contain ethyl alcohol. It is YOUR responsibility to read product labels to know what is contained in the products you use and to inspect these products BEFORE you use them... [~]... [~] "Over-the-counter medications: It has always been prohibited to use alcohol containing cough syrups or cold preparations (e.g. Nyquil while in monitoring. Nutritional supplements, such as Ginko Biloba liquid, can contain alcohol and should be avoided. Any product called 'tincture' contains alcohol. Alcohol is frequently used in liquid medications as a solvent. Read labels and if the product contains alcohol, don't use it unless you fi[r]st receive clearance from your probation monitor. Non-alcohol containing cough and flu medications are readily available and are acceptable alternatives... " (Exh. 5; emphasis in original. 11. On June 8 and 9, 2014, Respondent and Linda Enriquez (Enriquez, his partner, went to visit his son in San Diego, California. On the evening of June 8, 2014, they had dinner at a restaurant, and Respondent denied having any alcoholic beverage. Enriquez corroborated his testimony. 12. Respondent felt "a little under the weather" before dinner, and experienced chills, congestion, and flu-like symptoms after dinner. Respondent and Enriquez returned to their hotel after dinner, and he asked her to go to the pharmacy to obtain a generic antihistamine. He told her not to get Nyquil, which contained alcohol. 13. Enriquez went to the pharmacy and returned with a generic Rite Aid antihistamine medication, which came in two bottles. Respondent drank right from the bottle and finished one before going to sleep. He finished the second bottle in the morning and during the drive home on June 9,

5 14. Respondent denied drinking any alcoholic beverages on June 9, 2014, which testimony was corroborated by Enriquez, who was with him the entire day. 15. On the morning of June 9, 2014, Respondent called in as required by the terms of his bodily fluid testing program, and was notified that he would have to present for testing that day. He had to submit a urine sample by 6:00 p.m., and preferred to do so at the laboratory collection site near his home. 16. On June 9, 2014, at about 5:00 p.m., Respondent submitted a sample of his urine for testing. The sample was collected at the U.I.C. facility in City of Industry, California, and was submitted to the Clinical Reference Laboratory in Lenexa, Kansas for analysis. The sample was collected, transported and analyzed in accordance with accepted industry practices. 17. An initial screening test of the sample yielded positive results for the presence of the alcohol metabolites EtG and EtS. A second, more sensitive test was performed, which confirmed the presence of the metabolites. The EtG result was 7582 nanograms per milliliter (ng/ml, where 250 ng/ml is the positive cutoff for the laboratory. The level obtained for EtS was 1655ng/mL, and 50 ng/ml is positive John Truting, Ph.D. (Truting, a toxicology forensic expert, testified that EtG and EtS analysis is more sensitive than more common breath or urine analysis, as the metabolites can remain in the body for up to 80 hours. However, while the tests can establish the presence of alcohol, they cannot indicate its source. When initially asked if the levels obtained from the June 9, 2014 sample were consistent with ingestion of over-the-counter cold medications containing alcohol, Dr. Truting answered that it depends on what was ingested. He was then asked about a hypothetical medication and dosage, which was lower than that consumed by Respondent, but was never asked about the particular medication and dosages taken by Respondent. In these circumstances, it cannot be ruled out that the medicine ingested by Respondent was the source of the alcohol in his system at the time of the testing. 19. Respondent agreed that he was careless in not carefully reading the medicine's label before ingesting the medication. After learning about the positive results, and trying to determine what may have led to the results, he examined the label of the same medication he had taken. In what he described as "small print," the label stated that the medication contained 10 percent alcohol. 1 Respondent raised questions about the validity of the tests since EtG/EtS testing is not recognized by the United States government, and about the control of certain factors that might affect test results, such as contamination or refrigeration of the sample. Absence affirmative evidence of contamination or improper handling of the sample, the merit of the objections was not established. Moreover, the fact that the test in question is not recognized by federal authorities is insufficient to negate the validity of the test utilized in this case. Accordingly, Respondent's challenges to the testing done are unpersuasive. 4

6 20. Respondent denied consuming alcoholic beverages and his testimony was corroborated by that of Enriquez. He admitted that he ingested a cold medication containing alcohol and his testimony establishes that he consumed a significant amount of the medication over a short period of time immediately preceding the drug test. In light of Respondent's credible and corroborated testimony and his consumption of a relatively high dose of the medication on June 8 and 9, 2014, it is plausible that the alcohol metabolized in his body was that which was in medication. Despite its sophistication, the EtG/EtS test cannot identify the source of the alcohol or rule out the possibility that the source of the alcohol was the cold medication. 21. The EtG/EtS test does establish, and Respondent does not dispute, that alcohol was present in his urine on June 9, 2014, which is a violation of probation. 22. Respondent has been complying with all other terms and conditions of probation. 23. Respondent is 58-years-old and has four children, aged 21, 26 (twins, and 28. He is divorced, and has been living with Enriquez for approximately three years. He has been attending the same community church with his children for the past five to six years. During the past three years, Respondent has provided free medical services to individuals in need in Africa. Sherry Coats, a lead pastor in the Whittier Area Community Church, where Respondent attends, submitted a letter confirming his participation in the 2011 humanitarian mission to Africa. 24. Respondent works under the supervision of two physicians, Jack Feldser, M.D. and Joel Feldser, M.D. In a letter dated August 26, 2014, signed by both physicians, they note that they are fully aware of Respondent's probation and describe him as knowledgeable, professional, reliable, hard-working and a great team member who has added to their practice. 25. Enriquez is aware of Respondent's past use of alcoholic beverages. He told her about his use on the first night they met. She has never seen him consume an alcoholic beverage, despite the fact that they have been together in social situations where others are consuming alcoholic beverages. LEGAL CONCLUSIONS 1. Respondent violated condition number 3 of probation, as set forth in factual finding numbers 8, 10, 13, 16, 17, 18, 19, 20 and 21, and cause, therefore, exists to revoke probation and to impose the stayed penalty of revocation. 2. The purpose of licensing statutes and administrative proceedings enforcing licensing requirements is not penal but public protection. (Hughes v. Board of Architectural Examiners ( Cal.4th 763, ; Bryce v. Board of Medical Quality Assurance ( Cal.App.3d 1471, The nature and extent of the established violation, as well as all evidence offered in mitigation and rehabilitation, have been considered with this legal requirement in mind. Despite the violation of probation, there are mitigating circumstances that 5

7 make actual revocation unduly punitive. Respondent was suffering from an ailment, which required treatment, and he provided instructions for medication that did not contain alcohol. He recognized his error in failing to carefully review the medication label and agreed to be more vigilant about use of medication. He has otherwise been clean and sober, which is confirmed by the absence of any other positive tests over the past 15 months. Allowing Respondent to remain on probation is not against the public interest. However, because of the violation of probation, Respondent will not receive credit for the period of probation already completed and will have to start probation again. It will be left up the Board's discretion whether repetition of conditions already completed is necessary for the protection of the public. Accordingly, the order that follows is necessary, and sufficient, for the protection of the public. ORDER The Petition to Revoke Probation is sustained, and Respondent is ordered to remain on probation for seven years on the terms and conditions set forth in the Board Decision adopting the 2012 Disciplinary Order, which seven years will start running from the effective date of the Board's Decision in this matter. DATED: ll ( 7-.(:, { L 'f Administrative Law Judge Office of Administrative Hearings 6