BY k. {/ t»'1:j ANALYST

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1 I XAVIER BECERRA Attorney General of California MATTHEWM.DAVIS Supervising Deputy Attorney General MARTIN W. HAGAN Deputy Attorney General State Bar No West Broadway, Suite 1800 San Diego, CA P.O. Box San Diego, CA Telephone: (619) Facsimile: (619) FILED STATE OF CALIFORNIA MEDICAL BOARD OF CALIFORNIA SACRAMENTO..ilrenl / 'j 20 I Z BY k. {/ t»'1:j ANALYST 8 Attorneys for Complainant BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Bret Barry Abshire, M.D Hancock Avenue, Suite 210 Murrieta, CA Physician's and Surgeon's Certificate No. A 71689, Complainant alleges: Respondent. Case No ACCUSATION 20 PARTIES Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official 22 capacity as the Executive Director of the Medical Board of California, Department of Consumer 23 Affairs (Board) On or about May 18, 2000, the Medical J?oard issued PhysiCian's and Surgeon's 25 Certificate Number A to Bret Barry Abshire, M.D. (Respondent). The Physician's and 26 Surgeon's Certificate was in full force and effect at all times relevant to the charges brought 27 herein and will expire on November 30, 2019, unless renewed. 28 I I II ' 1

2 JURISDICTION This Accusation is brought before th~ Board, under the~uthority of the following 3 laws. All section references are to the Business and Professions Code unless otherwise indicated Section 2227 of the Code provides that a licensee who is found guilty under the 5 Medical Practice Act may have his or her license revoked, suspended for a period not to exceed 6 one year, placed on probation and required to pay the costs of probation monitoring, or such other 7 action taken in relation to discipline as the Board deems proper Section2234 of the Code, states: 9 "The board shall take action against any licensee who is charged with 1 O unprofessional conduct. In addition to other provisions of this article, 11 unprofessional conduct includes, but is not l_imited to, the following: 12 "(a) Violating or attempting to ".iolate, directly or indirectly, assisting in or 13 abetting the violation of, or conspiring to violate any provision of this chapter.. 14 "(b) Gross negligence. 15 "(c) Repeated negligent acts. To be repeated, there must be two or more 16 negligent acts or omissions. An initial negligent act or omission followed by a /Ill separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts. "(l) An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act. "(2) When the standard of care requires a change in the diagnosis, act, or omission that constitutes the negligent act described in paragraph (1 ), including, but not limited to, a reevaluation of the diagnosis or a change in treatm~nt, and the licensee's conduct departs from the applicable standard of care, each departure constitutes a separate and distinct breach of the standard of care. " 2 BRET BAR&Y ABSHIRE, M.D., ACCUSATION NO. _

3 1 2 3 " certificate. "(f) Any action or conduct which would have warranted the denial of a 4 s 6 " " FIRST CAUSE FOR DISCIPLINE (Gross Negligence) ls I 24 2S _, 6. Respondent is subject to disciplinary action under sections 2227 and 2234, as defined by section 2234, subdivision (b ), in that he committed gross negligence in his care and treatment of patient A, as more particularly alleged hereinafter: 7. On or about February 16, 2011, respondent had his initial visit with patient A, a then- 57-year-old male with a self-reported history of low back pain for approximately twenty years. According to the New Patient Consult Record for this visit, patient A reported, among other things, that he had "progressive and constant back pain in his lumbosacral region made worse with sitting, worse in the morning, and made worse with twisting" and sometimes with walking. Patient A further reported he "generally has less pain if he stands and constantly changes positions or moves around." According to patient A, "he ha[d] gone on to develop left-sided leg pain" and the pain in his back and leg had adversely affected his ability to perform his job functions. His prior treatment included multiple trips to the chiropractor, physical therapy, and non-steroidal anti-inflammatory medications (NSAID's). Respondent conducted an evaluation of patient A which included a review of symptoms, physical examination, testing of motor strength I and deep tendon reflexes and a radiographic review. 1 Respondent's diagnoses were listed as (1) thoracic kyphosis (outward curvature of the spine associated with hunched back), possible scoliosis, (2) retrolisthesis of Ll on L2, (3) LS pars defect leading to grade 1 spondylolisthesis at LS-S 1, most likely leading to back and leg pain, and ( S) smoking. According to the medical record for this visit, the patient was interested in possible surgical treatment and "[t]he risks, 1 According to respondent's medical record, the results of the radiographic review were as follows, "MRI of him lumbar spine shows that there is an anterolisthesis ofll on L2. There is significant spondylolysis at Ll-2, L2-3 is relatively normal. At L4-L5, there appears to be a nonspecific laminar defect, possible malformation ofthe lumbar spine at L4. At LS; there is an 1 LS spondylolysis with anterolisthesis on LS on S 1. 3

4 1 benefits, and options of observation and operative treatment were discussed with the patient." 2 After his evaluation, respondent recommended that patient A get AP and lateral flexion-extension 3 lumbar spine x-rays and scoliosis x-rays to assess his deformity and spondylolisthesis, that patient 4 A continue on light duty at work, and he was provided with a prescription for Chantix, to help S him quit smoking On or about March 9, 2011, respondent had a follow-up visit with patient A in which 7 he, among other things, reviewed new imaging studies of the thoracic and lumbar spine. 8 According to the progress note for this visit, the imaging studies showed "a 7-degree thoracic 9 curve which is concave to the right and multilevel thoracic spondylosis [and] X-rays of the IO lumbar spine show retrolisthesis of LI on L2 and grade I spondylosis at L4-S" and there was 11 documentation of "significant atherosclerosis noted in [patient A's] aorta and iliac vessels." No I2 I 3 I4 IS I 6 I 7 I 8 scoliosis x-rays were obtained due to insurance coverage issues. Respondent documented that patient A "continues to get progressively worse and has increasing pain" and "wishes to pursue surgical treatment." At this point, the_ surgical consideration was ''to do either a thoracic to sacral fusion or to do L4-S and LS-SI pedicle screw and fusion." A bone scan with spectroscopy was recommended in order to "identify any area that has a substantial amount of uptake" which would help determine the lerigth of any surgical fusion or other interventigm. Respondent also indicated that "we will want to review his older MRI of his spine." On or about March 24, 20I 1, respondent had another follow-up visit with patient A. 20 According to the progress note for this visit, patient A's "nuclear medicine study showed diffuse 2 I increased tracer uptake in the.upper half of L2 and the anterior portion of L3" and some possible 22 "uptake at LS-Sl." Respondent documented that patient A reported "that he cannot tolerate his 23 current pain, he has had the pain for 20 years [and] [h]e is to the point where he is substantially 24 debilitated..." Respondent's documented that his review of patient A's older MRI of the lumbar 2S spine showed "anterolisthesis of LI on L2, L2-3, L3-4 [is] relatively normal [and] [a]t L4-S, there 26 are nonspecific laminar defect and there is an LS spondylolysis with an anterolisthesis of LS on 27 SI. According to the progress note for this visit, options -discussed with patient A included 28 "nonoperative treatment, lumbar fusion at LI-2, LS-SI with the understanding he is at risk for 4 BRET BARRY ABSHIRE, M.D., ACCUSATION NO _025747

5 1 early next segment failure, and then another option of doing thoracic to sacral fusion for the 2 correction of his scoliosis and deformity as well as the treatment of his back pain." After 3 discussing the options with patient A, the decision was made to pursue surgical treatment, and 4 "the tentative plan will be for thoracic to sacral fusion with the understanding that when [patient 5 A] returns, we may change this to a fusion at Ll-2 and L5-Sl only." According to the progress 6 note, patient A was "desperate to have something done... although he is still somewhat reticent" 7 with respondent noting "we may consider doing a shorter segment fusion at Ll-2 or L5-Sl only 8 depending on what his films show with the understanding that he may be back needing additional 9 surgery.fairly quickly or proceed with thoracic to sacral fusion with.the understanding that there IO is substantial risk since it is a fairly large and aggressive surgery that maybe [sic] somewhat 11 controversial." On or about April 20, 2011, respondent had his final pre-op follow up visit with ) 13 patient A and his wife. According to the progress note for this visit, the decision, at this point in 14 time, was made to proceed with a "thoracic to sacral fusion." Respondent documented that he 15 had a "very lengthy discussion with the patient and his wife about the risks, benefits and options 16 of doing thoracic to sacral fusion versus shorter segment fusion and other options of treatment" 17 and noted that the contemplated surgery was "a very large invasive operation and that it is really 18 done only for people who are desperate to have something done." The surgery was scheduled for 19 the next week On or about April 26, 2011, respondent performed the thoraeic to sacr8;1 fusion 21 surgery (Tl 0-S I-pelvic fll;sion) on patient A with the fusion, and associated instrumentation and 22 hardware, running from the Tl 0 to S 1. According to the Operative Report, there were no 23 complications during the procedure. Respondent estimated the surgery took approximately 6 24 hours On or about June 8, 2011, respondent had a follow up visit with patient A. According 26 to the progress riote for this visit~ patient A's incision was "well healed," he was having 27 thoracolumbar pain that was improving over the last three weeks, and "all in all, he [was] making 28 slow and steady progress following his thoracic to sacral fusion. The plan for pat1ent A was to 5

6 1 continue with physical therapy, obtain x-rays of his thoracic and lumbar spine, wean him off of 2 his back brace, and for him to have a follow up appointment in six to eight weeks On or about September 1, 2011, respondent had another follow up visit with Patient 4 A. According to the progress,note for this visit, patient A reported pain in his midthoracic spine 5 which was slowly improving, he had a fall "about a month postoperatively," he had "some 6 nonspecific weakness at times in his legs" and "in general he [was] making slow and steady 7 progress. "On manual exam, his strength [was] 5/5 in his lower extremities except tliat he [had] 8 give away weakness in hip flexor strength which is 4/5" that was secondary to pain. According to 9 the progress note, a review of the post-operative x-rays showed that "his instrumentation and 10 hardware to be in good position in his lumbar spine" and "[h]is thoracic spine sho~[ed] partial 11 compression of the Tl 0 vertebral body and some angulation across the T9-10 space secondary to 12 vertebral height loss at the last instrumented segment." Respondent documented that patient A 13 reported he was "making slow and steady progress, although he is still hurting [and] [i]t is 14 difficult to tell whether he has gotten significant improvement in his general pain." Respondent's 15 assessment was that patient A was "making slow and steady progress, however, he had developed 16 significant thoracic kyphosis and he ~ad developed loss of vertebral body height at the last 17 instrumented segment of TIO." Respondent's plan was "to get an MRI of his thoracic spine to 18 see if we can see the segment and make.sure there is no significant compression across this region 19 or cord compression" and if the MRI could n?t sufficiently visualize the area, order a CT 20 myelogram. Follow up was planned for the next couple of weeks On or about September20, 2011, respondent had another follow up visit with patient 22 A. According to the progress note for this visit, patient A was sti.11 experiencing "midthoracic 23 spine pain centered in and around T9" which "seem[ed] to come and go," which became worse 24 with activity and interfered with patient A's ability to eat. Imaging studies showed progressive 25 kyphosis of T9-10 above the fusion. Respondent believed that patient A's "pain in the 26 midportion of his thoracic spine [was] related to his kyphosis was related to his kyphos and 27 possible underlying nonunion." Respondent's plan included, among other things, obtaining a CT 28 myelogram of the thoracic spine, MRI of the cervical spine, and flexion.:.extension cervical spine 6

7 I x-rays. This was respondent's last visit with patient A. According to patient A, he decided not to 2 see respondent any further because he was not satisfied with the results from the surgery According to patient A, he has had to deal with unrelenting and more severe pain 4 since the surgery was performed by respondent on April 26, After patient A's last visit 5 with respondent, his care was managed by his primary care physician who referred him to another 6 spine surgeon in approximately February 2016, for further evaluation of his still existent back 7 pain. Patient claims that he was informed that more surgery was done by respondent than he 8 actually needed On or about April 20, 2016, thoracic spine x-rays revealed progression of the IO angulation at T9-Tl 0 for patient A Respondent committed gross negligence in his care and treatment of patient A which 12 included, but was not limited to, the following: 13 (a) Respondent proceeded with an aggressive long construct TIO-SI-pelvic 14 fusion surgery without adequately and accurately depicting the risks and 15 complications of alternative treatments; and 16 (b) Respondent proceeded with an aggressive.long construct Tl 0-S I-pelvic 17 fusiqn surgery without sufficient clinical evidence.to support the aggressiv1 18 surgery as opposed to a less-aggressive surgery that was more likely to have 19 improved patient A's pre-operative symptoms with less risk to patient A. 20 SECOND CAUSE FOR DISCIPLINE 21 (Repeated Negligent Acts) Respondent is further subject to disciplinary action under sections 2227 and 2234, as 23 defined by section 2234, subdivision (c), of the Code, in that he committed repeated negligent 24 acts in his care and treatment of patient A, as more particularly alleged herein: 25 (a) Respondent proceeded with an aggressive long construct TIO-SI-pelvic 26 fusion surgery without adequately and accurately depicting the risks and 27 complications of alternative treatments; and 28 I II I 7

8 I (b) Respondent proceeded with an aggressive long construct Tl 0-S I-pelvic 2 fusion surgery without sufficient clinical evidence to support the aggressive 3 surgery as opposed to a less-aggressive surgery that was more likely to have 4 improved patient A's pre-operative symptoms with less risk to patient A. 5 PRAYER 6 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, 7 and that following the hearing, the Medical Board of California issue a decision: 8 I. Revoking or suspending Physician's and Surgeon's Certificate Number A 71689, 9 issued to respondent Bret Barry Abshire, M.D.; Revoking, suspending or denying approval of respondent Bret Barry Abshire, M.D.'s 11 authority to supervise physician assistants and advanced practice nurses; Ordering respondent Bret Barry Abshire, M.D., if placed on probation, to pay the 13 Board the costs of probation monitoring; and Taking such other and further action as deemed necessary and proper DATED: ~----'=-A~o~r~i~l'----"1~9~.'----"2~0~1~8::.._~ SD doc Executive irector Medical Board of California Department of Consumer Affairs State of California Complainant

FILED STATE OF CALIFORNIA - MEDICAL"BOARD OF CALIFORNIA SACRAMENTO /JtJIJtl?J/xr 2" 20.JL BY I< /krjr!!j ANALYST

FILED STATE OF CALIFORNIA - MEDICALBOARD OF CALIFORNIA SACRAMENTO /JtJIJtl?J/xr 2 20.JL BY I< /krjr!!j ANALYST 3 6 XAVIER BECERRA Attorney General cif California JANE ZACK SIMON Supervising Deputy Attorney General State Bar No. 66 Golden Gate Avenue, Suite 000 San Francisco, CA 90-700 Telephone: () 0-3 Fac;simile: