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

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1 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 Telephone: () 0-3 Fac;simile: () janezack.simon@doj.ca.gov Attorneys for Complainant FILED STATE OF CALIFORNIA - MEDICAL"BOARD OF CALIFORNIA SACRAMENTO /JtJIJtl?J/xr " 0.JL BY I< /krjr!!j ANALYST BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: MICHAEL BENJAMIN WOLFE, M.D. 0 Saratoga A venue, #09 Santa Clara, CA Physician's and Surgeon's Certificate No. A63089, Respondent. Case No ACCUSATION 7 Complainant alleges: 8 PARTIES 9. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official 0 capacity as the Executive Director of the Medical Bo~d of California, Department of Consumer. Affairs.. On July 8, 997, the Medical Board issued Physician's and Surgeon's Certificate 3 Number A63089 to Michael Benjamin Wolfe, M.D. (Respondent). The Physician's and Surgeon's Certificate is renewed and current with an expiration date of November 30, 08. Prior disciplinary action was taken against the certificate as follows:. On November 9, 009 an 6 Accusation was filed against Respondent, and on July, 00 a Decision became effective 7 which read: Revoked, stayed, five years probation with terms and conditions.. 8 I I I. (Michael Benjamin Wolfe, M.D.) Accusation No

2 3. JURISDICTION This Accusation is brought before the Medical Board of California (Board), under the 3 authority of the following laws. All section references are to the Business and Professions Code unless otherwise indicated.. Section7 of the Code provides that a licensee who is found guilty under the 6 Medical Practice Act may have his or her license revoked, suspended for a period not to exceed 7 one year, placed on probation and required to.pay the costs of probation monitoring, or such other 8 action taken in relation to discipline as the Board deems proper. 9. Section 3 of the Code requires the Board to take action against any licensee who 0 is charged with unprofessional conduct; defined to include "[v]iolating or attempting to violate,... '. directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision of this chapter." 3 6. Section 36 of the Code provides that the conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surge9n constitutes i l;lnprofessional conduct 6 7. Section 39 of the C,ode states: 7 "(a) The use of alcoholic beverages, to the extent, or in such a manner. as to be dangerous o r 8 injurious to the licensee, or to any other person or to the public, or to the extent that such 9 use impairs the ability of the licensee to practice medicine safely or more than one 0 misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such 3 unprofessional conduct. 8. Section 3 of the Code provides for the establishment of uniform standards to be imp~sed in dealing with cases involving substance-abusing licensees Title 6, California Code of Regulations, section 36 et seq. requires the Board to 7 use duly adopted Uniform_ Standards for Substance-Abusing Licensees in cases involving 8 substance abusing licensees. (Michael Benjamin Wolfe, M.D.) Accusation No

3 0. Section 80.l of the Code requires a physician and swgeon to report to the Medical Board a felony or misdemeanor conviction within 30 days of the conviction 3 PRIOR CONVICTIONS AND DISCIPLINARY ACTION. Ort September 7, 007, Respondent was convicted in Santa Clara County Superior Court of a violation of Vehicle Code section 303(a), Reckless Driving, a misdemeanor. The 6 conviction was the result of an April 8, 007 arrest for Driving Under the Influence (DUI) after 7 Respondent's preliminary alcohol screening test registered a reading of.09%. Pursuant to a 8 provision of the Vehicle Code whereby the prosecution may offer a plea to Reckless Deriving in. 9 satisfaction of or in substitute for ari original charge of DUI, the court minutes reflect that the 0 prosecution entered a statement on the record indicating that alcohol had been consumed in connection with the offense.. On April, 009, Respondent was convicted in Santa Clara County Superior Court 3 of a violation of Vehicle Code section 3 l (b ); Driving with a Blood Alcohol Reading of.08 or Greater. The conviction was the result of an October 8, 008 arrest for DUI, in which R,e$pondent' s blood.alcohol level was. measured at.8% On November 9, 009, an Accusation was filed in Case No , 7 charging Respondent with cause for discipline based on unprofessional conduct arising out of the 8 t,\\'o criminal convictions involving the consumption of alcohol. In a Decision and Order effective 9 July, 00, Respondent's certificate was revoked, stayed, subject to five years.probation with 0. terms and conditions including abstaining from drugs and alcohoi, biological fluid testing and participation in psychotherapy.. On September 8, 0, Respondent submitted a Petition for Penalty Relief, 3 requesting early termination of probation. A hearing was held, and thereafter the Board adopted a Decision in Case No , granting Respondent's Petition effective October 3, 03. The Decision contained findings that Respondent had complied with the terms and 6 conditions of his probation, and that he stated he "recognized that alcohol can lead me to make 7 poor decisions and thave no plans to drink again regardless of whether I'm being monitored." 8 3 (Michael Benjamin Wolfe, M.D.) Accusation No

4 Respondent presented evidence that he had changed his lifestyle and address~d his alcohol use issues. 3 FIRST CAUSE FOR DISCIPLINE (Unprofessional Conduct: Criminal Convictions/Excessive or Dangerous Use of Alcohol) 6. Respondent is subject to disciplinary action under sections 3, and/or 36,. and/or 7 39 in th~.t Respondent engaged in unprofessional conduct, was convicted of a crime, and _has a 8 demonstrated history of excessive and dangerous use of alcohol On December, 06 atapproximately Q: p.m., Respondent was pulled over by O the California Highway Patrol because his car lights were not on. The officer recognized signs of intoxication, such as the odor o~ alcohol, red and watery eyes, slow and slurred speech and an, unsteady gait. A breathalyzer test measured Respondent's blood alcohol level at.6% Respondent was arrested and charged in Santa Clara County Superior Court with two misdemeanor charges: ) Vehicle Code (VC) section 3(a)-Driving Under the Influence of Drugs and/or Alcohol; ) VC section 3(b)- Driving with a Blood Alcohol Level of0.08% or 6 More. Enhancements were alleged for driving with a blood alcohol level of.% or more, and for 7 Respondent's two previous alcohol related driving convictions. On July 8, 07, Respondent 8 pled n6 contest to and was convicted of violating Vehicle Code section 3 l (b ) Respondent's July 8, 07 criminal conviction driving under the influence with a 0 blood alcohol level twice the legal limit is substantially related to the qualifications, functions and duties of a physician and surgeon. Moreover, Respondent's three separate criminal convictions involving driving and the use of alcohol, along wit~ the high blood alcohol level in the most 3 recent incident, reflect the use of alcohol in a manner dangerous to himself or others. As such, Respondent is subject to discipline for unprofessional conduct pursuant to sections 3, and/or 36, and/or 39 of the Code. 6 I I I 7 I I I 8 I I I (Michael Benjamin Wolfe, M.D.) Accusation No

5 SECOND CAUSEFOR DISCIPLINE (Alcohol Abuse Disorder) 3 9. In August 07, Respondent selfreferred to the Promises Treatment Centers after his employer required him to undergo an evaluation. The evaluator concluded that it was "~uite clear" that Respondent has an alcohol use disorder and that without appropriate treatment and 6 monitoring, the potential for relapse w~s significant. Respondent acknowledged during an July 7 6, 08 interview with the Board's investigator that he has a substance abuse disorder Respondent's 'certificate is subject to disciplinary action pursuant to Section 3 of 9 the Code and Title 6-Cal. Code Regs. Section 36 et. seq. in that Respondent is a substance IO abusing licensee who suffers from an alcohol abuse disorder.. THIRD CAUSE FOR DISCIPLINE (Failure to Report Conviction) 3., Respondent did not report his July 8, 07 criminal conviction to the Board.. Respondent's failure to report the criminal conviction in violation of Section 80. of the Code constitutes unprofessional conduct and cause for discipline pursuant to Section 3 of '.. 6 the Code. 7 PRAYER 8 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, 9 and that following the hearing, the Board issue a decision: 0. Revoking or suspending Physician's. and Surgeon's Certificate Number A63089, issued to Michael Benjamin Wolfe, M.D.;. Revoking, suspending or denying approval of Michael Benjamin Wolfe, M.D.'s 3 authority to supervise physician assistants and advanced practice nurses; 3. Ordering Michael Benjamin Wolfe, M.D. if placed on probation, to pay the Board the costs of probation monitoring; and 6 I 7 I 8 (Michael Benjamin Wolfe, M.D.) Accusation No

6 . Taking such other and further action as.deemed necessary and proper DATED: ~=N=ov~e=m=b=e=r--=-6~,'--==0==8~- Executive Director. Medical Board of California State of California Complainant 6 (Michael Benjamin Wolfe, M.D.) Accusation No