BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of the Petition for Interim Suspension Order:

KIMBERLY KIRCHMEYER, Executive Director, Medical Board of California,

Petitioner, vs.

JAIPAL S. SIDHU, M.D., Physician's and Surgeon's Certificate Number A72117,

Respondent.

Case No. 800-2015-017133

OAH No. 2017020885

DECISION AND ORDER ON PETITION FOR INTERIM SUSPENSION

This petition for interim suspension order was heard before Karen J. Brandt, Administrative Law Judge, Office of Administrative Hearings (OAH), State of California, on March 14,2017, in Sacramento, California.

Megan R. O'Carroll, Deputy Attorney General, represented Kimberly Kirchmeyer, Executive Director (petitioner), Medical Board of California (Board).

Gary A. Hunt, Attorney at Law, represented Jaipal S. Sidhu, M.D., (respondent), who was present.

Pursuant to Government Code section 11529, declarations and other documentary evidence were received, and oral argument was heard. The record was closed, and the matter was submitted for decision on March 14, 2017. 1

1 On February 22, 2017, a petition for an ex parte interim suspension order was denied.

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FACTUAL FINDINGS

1. On June 15, 2000, the Board issued Physician's and Surgeon's Certificate Number A 72117 (license) to respondent. Respondent's license was in full force and effect at all times relevant to this proceeding, and will expire, unless renewed, on June 30, 2018.

2. Petitioner seeks an interim suspension order under Government Code section 11529, alleging that permitting respondent to continue practicing medicine will endanger the public health, safety, and welfare because: (1) he has used alcoholic beverages to the extent to be dangerous to himself and others, and to impair his ability to practice medicine safely; (2) his ability to practice medicine safely is impaired due to mental illness and/or physical illness affecting competency; and (3) he has engaged in conduct which is unbecoming a member in good standing of the medical profession and which demonstrates an unfitness to practice medicine.

San Joaquin Rehabilitation Hospital's Stt.\pension of Respondent's Privileges

3. Respondent practices in Fresno, California. He is board-certified in Physical Medicine and Rehabilitation. In October 2014, respondent applied to San Joaquin Valley Rehabilitation Hospital for medical staff privileges, which were granted in November 2014, effective December 1, 2014. Hospital records indicate that in mid-January 2015, respondent engaged in conduct that caused the hospital to have concerns about his safety to practice.

4. As reflected in the hospital's records, on Friday, January 16, 2015, respondent attended an interdisciplinary meeting. His behavior was noted to be "unusual," "somewhat erratic," and "disruptive." He fell off his chair as he was sitting down. He resisted a request to leave the meeting with the chief executive officer and medical director. Later that day, his behavior was described as "rude and inappropriate." He told a hospital employee to "shut up," talked over people, and was described as "not very focused."

5. On Saturday, January 17, 2015, respondent was again at San Joaquin Valley Rehabilitation Hospital. The nurse in charge had concerns about an odor of alcohol on respondent's breath. At around 4:40p.m., a hospital employee, who was leaving the hospital, spoke to respondent as he was entering the hospital. The employee noticed that respondent "was having difficulty expressing himself and finding words to formulate a proper sentence." She smelled a "faint odor of alcohol on his breath." Respondent followed the employee to the parking lot. The employee noticed that respondent's car was parked at an angle, instead of straight. The employee reported her observations to the hospital. Respondent was asked to provide a urine sample. Respondent stated that he was on Ambien, Klonopin and Hydrocodone, all of which he took the previous evening. Respondent's urine sample tested positive for benzodiazepines, opioids and alcohol.

6. On January 19, 2015, Dr. Michael Azevedo, Medical Staff President of San Joaquin Valley Rehabilitation Hospital, sent respondent a letter informing him that his hospital privileges had been temporarily suspended, and that an investigation was underway

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regarding his ability to safely provide services to the hospital's patients. In the letter, Dr. Azevedo, in relevant part, stated:

This suspension was taken due to your conduct which could have resulted in an imminent danger to the health of the Hospital's patients. Reports were received of an ETOH2 smell on your breath coupled with questionable behavior which included: (1) multiple trips to your car throughout the day; (2) reports of unfocused and somewhat confusing conversations with some apparent word finding difficulties; and (3) reports of angry outbursts and unprofessional behavior in several meetings with Hospital's leadership.

7. By letter dated January 22, 2015, Dr. Azevedo notified respondent that the hospital's Wellness Committee recommended that respondent "take a leave of absence and seek treatment for issues that you have which are causing behaviors outside the expected norm of professional practice." Dr. Azevedo stated further that, if respondent took a leave, when he was "cleared by [his] treating physician," he would be "required to submit the evaluation and summary of the treatment" he sought to the Wellness Committee, including evidence that he was "fit to resume [his] professional duties." Dr. Azevedo also offered respondent the option of resigning from the hospital medical staff"without repercussions." Dr. Azevedo notified respondent that if he elected not to take a leave of absence, his suspension would continue, the hospital would "consider other actions" with respect to his privileges, and the hospital would notify the Board if his suspension continued for more than 15 days or if he resigned while his privileges were suspended.

8. That same day, respondent notified the hospital that he would be "pursuing appropriate treatment." He requested that the hospital grant him a leave of absence. On January 26,2015, Kelly Rudolph, R.N., the hospital's Director of Quality/Risk Management of Medical Staff Office, notified respondent that his request for a leave of absence had been granted, and the matter would "remain open" until respondent provided the "documentation required" to allow him to resume his professional duties at the hospital.

Respondent's Medical Records

9. Petitioner submitted medical records for respondent from Nirmal Brar, M.D. a psychiatrist, dating from January 2014. On October 21, 2014, about the time respondent was applying for medical staff privileges at San Joaquin Valley Rehabilitation Hospital, Dr. Brar noted that all of respondent's history indicated "Alcohol Dependence," but respondent was "in denial." Dr. Brar recommended "inpatient rehab," but respondent did not agree. Dr. Brar noted that, "It is very hard to treat a physician when they are in denial and they know what sx

2 "ETOH" stands for ethyl alcohol.

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to report but there won't be any BDZ Rx unless it is being used for alcohol w/d in conjunction with alcohol treatment protocol."3

10. On January 21,2015, Dr. Brar noted that respondent's brother-in-law called and stated that respondent "is drinking day and night." Dr. Brar noted that respondent did "not endorse" symptoms of alcohol dependence, but the history from respondent's family was "suggestive of Alcohol dependence/abuse." Respondent's brother told Dr. Brar that respondent threatened to kill him. Dr. Brar advised respondent's family to call 911. Respondent was taken to a hospital emergency room.

11. On January 2 7, 2015, Dr. Brar noted that respondent met the "criteria for alcohol dependence" and that Dr. Brar discussed with him inpatient rehabilitation options. Dr. Brar recommended that respondent see Richard Guzzetta, M.D.

Respondent's Substance Abuse Treatment in J amtary through May 2015

12. Lakeside-Milam Recovery Centers. On January 28, 2015, respondent was admitted to Lakeside-Milam Recovery Centers (Lakeside-Milam) in Kirkland, Washington, for treatment of chemical dependency. A January 28, 2015 Admission History and Assessment noted that respondent consumed "200 cc" of Vodka that morning, and that he had been using "Vodka 50ml x4 a day for 8 years." An Initial Assessment dated January 29, 2015, indicated that, during the previous 12 months, respondent drank alcohol three to four times a week, ingesting three to four shots each time. A Detox Health Assessment dated January 29, 2015, noted that respondent reported a history of depression and anxiety for four years. He also reported that he "had no issues with drinking," but he did "socially drink and approximately two years ago his drinking began worsening and his drinking has progressively gotten worse since that time." An Intake Report on January 30, 2015, noted that respondent was at "high risk of withdrawal," and that he exhibited the following withdrawal symptoms, "Sweaty palms, Hand tremors, Disturbed sleep patterns, Restlessness/agitation." Respondent reported that "his substance use had not affected his work."

13. Respondent was discharged from Lakeside-Milam on February 25, 2015. The Discharge Summary stated that respondent was "placed in detoxification care in order to manage initial symptoms of withdrawal and subsequently transferred to routine inpatient level care for the remainder of his stay." Respondent's participation in group therapy was described as "thoughtful and insightful into his relationship with alcohol and how it had taken over his life." He had "developed a thorough action plan for his early recovery." After discharge, he planned to continue attending 12-Step meetings and out-patient aftercare.

14. Eleventh Hour Rehabilitation Programs. On March 2, 2015, respondent entered an Intensive Outpatient Program (lOP) at Eleventh Hour Rehabilitation Programs

3 "Sx" stands for symptoms. "BDZ Rx" stands for benzodiazepine prescriptions. "W /d" stands for withdrawal.

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(Eleventh Hour). Records from Eleventh Hour noted that on April 9, 2015, respondent tested positive for alcohol (ethanol) at .111 g/dL, when the cutoff was .04 g/dL. On April 20, 2015, respondent showed up at an Eleventh Hour meeting under the influence of alcohol. He initially denied that he had been drinking. He was given a breathalyzer and "blew a .400 three times." He refused to take a urine test. Respondent then admitted that he drank vodka at 4:00p.m. On April22, 2015, respondent spoke by telephone with Eleventh Hour's Admissions Coordinator, who noted that respondent "appeared to be intoxicated evidence[ d) by repeating sentences and asking the same questions." When asked when he last drank, respondent "did not answer the question." On May 5, 2015, respondent tested positive for ETG/ETS, metabolites of ethanol.4

15. On May 27, 2015, respondent received a certificate, which indicated that he had successfully completed the Eleventh Hour Rehabilitation Program by completing 10 sessions of consecutive lOP treatment and 26 sessions of lOP treatment.

Revocation of Respondent's Privileges at San Joaquin Rehabilitation Hospital

16. On March 8, 2015, respondent requested that San Joaquin Valley Rehabilitation Hospital reinstate his privileges. On July 23, 2015, after reviews by the hospital's Wellbeing and Medical Executive Committees, the hospital's Governing Body Committee decided that it would only approve respondent's reinstatement request if respondent participated in an aftercare program that had a relationship with the Board and performed monitoring for licensure. On July 24, 2015, the Pacific Assistance Group (PAG) verified that respondent had signed a one-year renewable agreement for private health care professional monitoring and support. The agreement required that respondent attend two PAG meetings and three Alcoholics Anonymous (AA) meetings per week, that he undergo random observed urine tests at least weekly, that he have weekly sponsor contact, and that there be quarterly reports from a worksite monitor and other reports as needed or requested.

17. On August 3, 2015, San Joaquin Valley Rehabilitation Hospital notified respondent that his return from a leave of absence to the hospital's medical staff was approved subject to the following conditions: (a) for a minimum of 75 days, he could treat patients only when his proctor was physically present at the hospital; (b) respondent would comply with his one-year plan with PAG and reports would be forwarded to the hospital; and (c) the hospital would have the right to request that respondent be tested for cause. Respondent signed the August 3, 2015 letter on August 5, 2015, agreeing to the reinstatement of his privileges on the terms stated in the letter.

18. On September 16, 2015, respondent tested positive for "Opiates: Hydromorphone." With regard to this positive test, the Medical Review Officer (MRO) stated, "Positive hydromorphone seen as a metabolite of hydrocodone with no newer RX than 1/9/13 which was verified." Respondent told PAG that he had taken medication from a prior prescription for knee pain. Respondent did not inform PAG prior to taking this

4 "ETG" stands for Ethyl Glucuronide. "ETS" stands for Ethyl Sulfate.

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medication. Respondent's agreement with PAG, in relevant part, stated, "I understand that that zero tolerance means I will abstain from the use of all alcohol and all legal or illegal drugs except those prescribed for me by another physician and approved of in advance as indicated above."

19. On September 17, 2015, respondent tested positive for ETG/ETS. The test results also indicated that respondent's specimen was dilute, with a creatinine level of 9.4 mg/dL. The MRO stated, "Positive ETG/ETS at levels that indicate ingestion but may be consistent with his history. Recommend a PEth test, which should be negative if his stated history is accurate."5 Respondent told PAG that the positive test was likely due to mouthwash for a sore throat.

20. On September 25, 2015, the San Joaquin Valley Rehabilitation Hospital summarily suspended respondent's privileges. The hospital took this action "due to the need for further investigation of possible alcohol ingestion." Respondent was notified that the P AG MRO was investigating respondent's positive ETG test, and that a blood test would be performed to confirm whether respondent had consumed alcohol. At a meeting of the hospital's Medical Executive Committee on September 29,2015, it was confirmed that respondent's blood test was negative.

21. By letter dated September 30, 2015, San Joaquin Valley Rehabilitation Hospital notified respondent that the Medical Executive Committee had voted to recommend the revocation of his medical staff privileges. The letter noted that respondent's privileges were suspended and he was granted a leave of absence on January 19, 2015. The letter also noted respondent's two positive tests in September 2015. The letter stated that respondent's "actions of using an opiate without first notifying PAG and obtaining approval to use this medication" violated the terms of his agreement with PAG. In addition, respondent's "actions of using a mouthwash containing alcohol" violated his agreement with PAG. Respondent's medical staff privileges were suspended with the intent to revoke until he either exhausted his fair hearing rights or the governing body took final action on the Medical Executive Committee's recommendation.

22. Pursuant to Business and Professions Code section 805.01, on September 30, 2015, the hospital reported respondent's suspension to the Board.

Respondent 's Substance Abuse Treatment from June to December 2015

23. On October 15, 2015, respondent withdrew from his agreement with PAG and PAG ceased monitoring respondent's alcohol and substance use. On October 19, 2015, respondent signed an Aftercare Admission Agreement with Eleventh Hour. The agreement provided that Eleventh Hour would provide Aftercare services to respondent, including one session per week for 26 weeks. The agreement also provided that respondent would submit to urine drug screens at the request of staff. On December 6, 2015, respondent tested

5 A "PEth test" is a blood test for phosphatidylethanol, a metabolite of alcohol.

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positive for ETG/ETS. On December 14, 2015, respondent missed a scheduled urine test. On December 15,2015, respondent's urine was tested. Although that test was negative, respondent's specimen was dilute. His creatinine level was 18 mg/dL, when the cutoff level for dilution was 20 mg/dL.

24. On December 20, 2015, Eleventh Hour staff observed that respondent's breath smelled of alcohol and he had red eyes. Staff concluded that respondent was under the influence of alcohol and asked him to take a breathalyzer test. Respondent initially refused, but thereafter agreed. Respondent was tested three times, and each time the result was .40. Respondent denied drinking, and said he took Listerine. Staff confronted respondent about being under the influence of alcohol, and instructed him to obtain a ride home. A friend came and took respondent home. On December 21, 2015, an Admissions Specialist at Eleventh Hour contacted respondent and told him to come to the facility that day to test. Respondent stated that he was unable to test because he was out of town with his children until December 26, 2015. Respondent was advised to contact the facility on December 26, 2015, before returning to Aftercare.

25. The records of Eleventh Hour indicate that respondent contacted the facility on December 27, 2015, and stated he wanted to attend Aftercare and was ready for a urine test. An Eleventh Hour Admissions Specialist informed respondent that he was not allowed to attend Aftercare at that time and someone from Eleventh Hour would be contacting him on December 30, 2015. There were no further Eleventh Hour records offered at the hearing.

Board's Investigation. Interview, and Expert Reports

26. Howard B. Terrell, M.D. In October 2015, a Board investigator began obtaining records relating to respondent. On February 25, 2016, the investigator referred this matter to Howard B. Terrell, M.D., for a psychiatric evaluation under Business and Professions Code section 820.0 Dr. Terrell is board-certified in both Psychiatry and Forensic Psychiatry. After reviewing the records provided by the Board investigator and examining respondent, Dr. Terrell issued a report dated March 27, 2016.

o Business and Professions Code section 820 provides:

Whenever it appears that any person holding a license, certificate or permit under this division or under any initiative act referred to in this division may be unable to practice his or her profession safely because the licentiate's ability to practice is impaired due to mental illness, or physical illness affecting competency, the licensing agency may order the licentiate to be examined by one or more physicians and surgeons or psychologists designated by the agency. The report of the examiners shall be made available to the licentiate and may be received as direct evidence in proceedings conducted pursuant to Section 822.

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27. Dr. Terrell's March 27, 2016 report stated that respondent, with regard to his positive alcohol test in January 2015, reported that, because he did not expect to be called into the hospital the next day, he went to a party the night before. He also reported that when he was at a rehab meeting, someone smelled alcohol on his breath, but he denied that he drank any alcohol, and asserted that he only used Listerine. Respondent asserted that he used to drink about one to two shots of Scotch with soda per week on average, and that he never consumed more than three shots of hard liquor or three glasses of wine per week. Respondent described the treatment he received and the medications he was taking for depression and anxiety, including Prostiq and Abilify. Respondent asserted further that he attended three to four AA meetings per week, and that his last alcohol consumption was around January 16 or 17, 2015. Dr. Terrell questioned the validity of respondent's .40 breathalyzer test in December 2015, finding that such a high level could "result in coma or death."

28. Dr. Terrell diagnosed respondent with: (1) Alcohol Use Disorder, Moderate (reportedly in remission); (2) Unspecified Depressive Disorder (reportedly under good control with psychotropic medication and abstinence from alcohol consumption); and (3) Unspecified Anxiety Disorder (reportedly under good control with psychotropic medication and abstinence from alcohol consumption). Dr. Terrell recognized that respondent "understated his overall alcohol consumption," but Dr. Terrell believed that "understatement and under-assessment of one's alcohol consumption is extremely common with people who suffer from alcohol use disorder." Dr. Terrell opined that, "So long as [respondent] remains clean and sober and under the care of a skilled physician, such as Dr. Guzzetta, who is extremely knowledgeable about substance abuse as well as the treatment of depression and anxiety, I believe that [respondent] will be able to practice medicine safely."

29. Board Interview. On June 9, 2016, the Board investigator interviewed respondent. During the interview, respondent stated that he started his own private solo practice in December 2014. He practices physical medicine and rehabilitation, and pain management. As part of his practice, he performs epidural spinal injections. He does not dispense medications from his office.

30. During the interview, respondent stated that he was not then consuming any alcohol, and that his past consumption of alcohol consisted of "about two drinks over the weekend." He denied that he had an "alcohol problem." He asserted that he attended an alcohol treatment program as a result of the "requirements" of the San Joaquin Valley Rehabilitation Hospital. He stated that he "finished" Eleventh Hour's 26-week Aftercare program and was under the treatment of Dr. Guzzetta. He asserted that he has been clean and sober since January 28, 2015. He attributed any positive alcohol tests after that date to his use of Listerine. He denied ever having alcohol withdrawal symptoms. He did not consider himself to be an alcoholic, although he recognized that he had been diagnosed with chronic alcoholism.

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31. After interviewing respondent and obtaining additional records, the Board investigator, on December 16, 2016, referred this matter to Alan L. Schneider, M.D., for a psychiatric evaluation.

32. Alan L. Schneider, M.D. Dr. Schneider is board-certified in Psychiatry and Neurology, with separate certifications for subspecialties in Geriatric Psychiatry and Addiction Medicine. After reviewing the records received from the Board investigator and respondent's June 9, 2016 interview, Dr. Schneider issued a report dated December 28, 2016. Dr. Schneider did not examine respondent.

33. In his December 28, 2016 report, Dr. Schneider summarized the records he reviewed. Dr. Schneider noted that, for the past year, the only record of respondent's sobriety was based on respondent's assurances that he has been participating in AA and reporting to Dr. Guzzetta regarding his behavior. Of most concern to Dr. Schneider was respondent's June 9, 2016 interview with the Board investigator. As Dr. Schneider explained:

When given on opportunity to honestly relate his problem and disclose his treatment, [respondent] took every opportunity to obfuscate, prevaricate, and blatantly misrepresent his history and subsequent behavior of the past year, at a time when the investigative team was looking at his records .... Equally serious is a past history of constant alcohol use which qualifies for an alcohol use diagnosis, verified in his physician's chart notes, which he deliberately denied when queried about. Instead, [respondent] repetitively presented himself as a "weekend drinker." It was this interview which I found to be some of the most serious data concerning this physician.

34. In his report, Dr. Schneider reached the following conclusions:

(a) There was "enough data to suggest" that respondent has an "ongoing alcohol use disorder that has remained unchecked and perhaps inadequately treated, that endangers his ability to practice medicine in this state, and that his judgment and insight are so severely impacted (as evidenced by his discussion with the Board and treating clinicians in other environments) that he does not have sufficient capacity to make rational judgments."

(b) "Evidence suggests that his use of alcohol existed in a manner sufficient enough to be dangerous/injurious to himself and to the public."

(c) Respondent was "incapable of reporting his behavior in a truthful manner (as evidenced by his interview with the Medical Board), such that monitoring (unless conducted in a direct, 1:1 fashion on a constant basis) would be ineffective."

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35. Petitioner submitted a declaration from Dr. Schneider in which he opined that permitting respondent to continue to engage in the practice of medicine at this time will endanger the public health, safety and welfare. Dr. Schneider opined further that respondent suffers from an alcohol use disorder in the form of alcohol dependence. It is Dr. Schneider's opinion that respondent suffers from a condition that substantially impairs his ability to safely practice medicine and that the public is in danger if he is permitted to continue to practice medicine.

Respondent 's Declarations and Expert Opinion

36. At the hearing, respondent offered his own declaration, the declaration of Dr. Guzzetta, and declarations from four of respondent's employees.

37. Respondent's Declaration. In his declaration, respondent stated that his ability to practice at San Joaquin Valley Rehabilitation Hospital was "short lived" as a result of "concerns regarding [his] use of alcohol." Even though his privileges were suspended in January 2015, and he "allowed them to be revoked" in the fall of2015, the hospital's actions served as a "wake-up call" for him, and started him "down the road to recovery from [his] battles" with alcoholism, anxiety and depression. Respondent asserted that "this wake-up call was received without ever having put any patient at risk." Respondent remains "steadfast" in his "proclamation" that he was "never under the influence while practicing."

38. Respondent admitted that his "recovery has not been linear." There have been times since January 2015 when he has "been in denial about [his] condition, embarrassed about how much alcohol [he] consumed and even embarrassed to admit that [he] was and [is] an alcoholic." Respondent described the summer of 2014 as a "very difficult time" in his life. His father in India was very ill. Respondent left Kaiser to start his own practice. He received medication for anxiety. He believes that it was at this time in his life that he began to have issues with "alcohol dependency relating to [his] existing anxiety and depression issues." The issues at San Joaquin Valley Rehabilitation Hospital "brought this to the forefront." Even though "for quite some time [he] did not believe that [he] needed the type of treatment" the hospital required, he now believes that it is "what has gotten [him] on track to the point" he now believes that he is "able to recognize the problem that [he has] and deal with it effectively."

39. Respondent described his treatment at Lakeside-Milam and Eleventh Hour. Since "completing the Aftercare program with Eleventh Hour" respondent has continued to treat with Dr. Guzzetta. He attends a 12-Step program three to four times a week. While he was able to admit his "problem" to his healthcare providers, it had been "difficult" for him to "always be forthcoming with other professionals." His reluctance was a result of his "embarrassment."

40. Respondent believes that his anxiety and depressive disorders were "significant factors" in his not being able to manage his alcohol dependency. He described his treatment with Dr. Guzzetta as "lifesaving." He reached a "turning point in early 2016

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when [his] anxiety was greatly reduced and [he] stopped having what would be described as panic attacks." He averred that, "I have never put any patient in danger, but more than ever, I have no doubt that my illness, very well managed, will have no impact on my practice."

41. In his declaration, respondent described his practice. He is a solo practitioner. He asked that there be no interim suspension of his practice, because a suspension would "not only be extremely injurious to [him] and his family, but also a large number of patients that rely quite heavily on the care" that he provides.

42. Dr. Guzzetta's Declaration. Dr. Guzzetta is licensed by the Board. He is board-certified in Family Practice and Addiction Medicine. He is the Medical Director of Touchstone Recovery Center and is in private practice with the Touchstone Medical Group. He has practiced as an Addiction Specialist for more than 25 years.

43. On March 2, 2015, Dr. Guzzetta began seeing respondent for treatment of alcohol dependency. Initially, he had appointments with respondent every two to three weeks. "Very early in his treatment," respondent had relapses, which he told Dr. Guzzetta about. Dr. Guzzetta treated respondent's anxiety and mood, and had him participate in a 12-Step program. Between July and October 2015, Dr. Guzzetta performed three separate alcohol and alcohol metabolites screening exams on respondent, all of which were negative. During this time period, respondent was regularly attending his support group meetings, was progressing well on the 12-Steps, and his mood was much improved. As a result, the frequency of respondent's visits to Dr. Guzzetta's office was decreased to every two to three months. In September 2016, Dr. Guzzetta scheduled the next appointment with respondent for February 2017.

44. Dr. Guzzetta saw respondent on February 7 and 27, 2017. During these two visits, Dr. Guzzetta did not observe any indication that respondent had alcohol-related issues. Dr. Guzzetta opined that respondent has been "in remission from his alcohol abuse" for "well over a year." Dr. Guzzetta has seen no indication that respondent is abusing alcohol or has had any recent relapses. Respondent's "anxiety, which served as a trigger for, and exacerbated his past alcohol abuse is well controlled" on his current medication regimen. Since May 2016, respondent has been free from anxiety attacks. Over the last year and one­half, Dr. Guzzetta has not seen any physical indication of alcohol abuse, such as odor of alcohol, shakiness, slurred speech or other symptoms associated with alcohol intoxication or withdrawal. In sum, Dr. Guzzetta sees no indication that respondent is unable to render safe and competent care to his patients.

45. Declarations from Respondent's Employees. Respondent submitted declarations from four of his employees. None of them has observed respondent engaging in behaviors that have caused them to believe that he was under the influence of drugs or alcohol.

46. Because none of the declarations that respondent submitted included his sobriety date, at the hearing he was asked when he last drank alcohol. Respondent stated it

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was May 15, 2015. Respondent confirmed that the last time Dr. Guzzetta performed a random alcohol screening was October 2015, and that he saw Dr. Guzzetta once every three months in 2016. Respondent does not now have privileges at any hospital. The last hospital at which he had privileges was San Joaquin Valley Rehabilitation Hospital in September 2015.

Discussion

47. Respondent argued that petitioner did not submit sufficient recent evidence of respondent's alcohol abuse to establish cause to suspend his license under Government Code section 11529. Respondent asserted that his last valid positive test for alcohol was in May 2015, and that he has not had any valid positive tests since that time. Respondent asserted further that his breathalyzer tests in December 2015 were not valid on their face, because an individual who attained a .40 reading would be comatose. According to respondent: (1) Dr. Guzzetta's declaration established that respondent's anxiety and depression were linked to his alcohol dependency and these mental health conditions are now being successfully controlled with medication; (2) respondent's declaration shows that he is now forthcoming about his issues with alcohol; (3) respondent's employees have not observed respondent to be under the influence of alcohol; and ( 4) suspending respondent from practicing would cause harm to his patients, employees and family.

48. Respondent's arguments were not persuasive. Respondent obtained privileges at San Joaquin Valley Rehabilitation Hospital beginning in December 2014. His privileges were suspended in January 2015 after he acted inappropriately and tested positive for alcohol while at work. His privileges were reinstated in August 2015. They were suspended in September 2015 for violating the terms of his agreement with a monitoring and support services program. Since September 2015, respondent has not worked under the scrutiny of any healthcare providers not in his employ. The last time he was subjected to a random drug screening was in October 2015. In December 2015, the staff at Eleventh Hour's Aftercare program suspected that he was under the influence of alcohol and gave him three breathalyzer tests, which were positive. Although the validity of those test results was questioned, when the Aftercare program asked respondent to undergo urine analysis to confirm his consumption of alcohol, he avoided testing for a week.

49. Respondent was not truthful with Dr. Terrell during his psychiatric evaluation or with the Board investigator during his interview about the extent or scope of his alcohol consumption, significantly minimizing his abuse. San Joaquin Valley Rehabilitation Hospital found that respondent was under the influence of alcohol while at work. Respondent's declaration shows that he still has not gained sufficient insight that his alcohol use while at work placed his patients at risk of harm. Dr. Guzzetta has not randomly tested respondent for alcohol use since October 2015. Dr. Guzzetta's opinion that respondent did not abuse alcohol in 2016 was based on respondent's reports and Dr. Guzzetta's observations during the appointments respondent attended once every three months. Given respondent's lack of candor during Dr. Terrell's examination and the Board's interview, respondent's reports to Dr. Guzzetta about his abstention from alcohol cannot be credited.

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50. Given these facts, respondent's assertion that he has remained clean and sober since May 2015 can be given no weight. Petitioner's evidence, particularly respondent's alcohol abuse while at San Joaquin Valley Rehabilitation Hospital, his multiple failures to comply with PAG's and Eleventh Hour's programs, and his lack of candor with Dr. Terrell and the Board investigator, raise serious concerns about his safety to practice. Respondent's evidence did not allay these concerns.

51. When all the evidence is considered, in accordance with Government Code section 11529, subdivision (a), petitioner submitted declarations which show that respondent has engaged in acts constituting a violation of the Medical Practice Act and is unable to practice safely due to a mental condition, and that permitting him to continue to practice medicine without restrictions will endanger the public health, safety, and welfare. Petitioner established further that there is a reasonable probability that she will prevail in the underlying action, and that the likelihood of injury to the public in not issuing an interim order outweighs the likelihood of injury to the licensee in issuing an order. A physician who may be practicing under the influence of alcohol should not be allowed to continue practicing without restrictions. Public protection is the highest priority.

52. But due to the absence of evidence to establish recent alcohol use while at work, petitioner did not establish that an interim suspension should go into effect at this time. Instead, the public health, safety and welfare would be adequately protected if respondent were allowed to continue to practice under the restrictions set forth below, including submitting to random biological testing, until an accusation is issued and a decision is rendered thereon or this matter is otherwise resolved.

LEGAL CONCLUSIONS

1. Pursuant to Government Code section 11529, subdivision (a), "an interim order suspending a license, imposing drug testing, continuing education, supervision of procedures, limitations on the authority to prescribe, furnish, administer, or dispense controlled substances, or other license restrictions" rna y be issued: (1) "if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act ... , or is unable to practice safely due to a mental or physical condition"; and (2) "permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare."

2. Government Code section 11529, subdivision (e), provides that:

(e) Consistent with the burden and standards of proof applicable to a preliminary injunction entered under Section 527 of the Code of Civil Procedure, the administrative law judge shall

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grant the interim order where, in the exercise of discretion, the administrative law judge concludes that:

(1) There is a reasonable probability that the petitioner will prevail in the underlying action.

(2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.

3. Business and Professions Code section 2234, in relevant part, provides, "The board shall take action against any licensee who is charged with unprofessional conduct."

4. Business and Profession Code section 2239, subdivision (a), in relevant part, provides:

The ... use of ... alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely ... constitutes unprofessional conduct.

5. Business and Professions Code section 822 provides:

If a licensing agency determines that its licentiate's ability to practice his or her profession safely is impaired because the licentiate is mentally ill, or physically ill affecting competency, the licensing agency may take action by any one of the following methods:

(a) Revoking the licentiate's certificate or license.

(b) Suspending the licentiate's right to practice.

(c) Placing the licentiate on probation.

(d) Taking such other action in relation to the licentiate as the licensing agency in its discretion deems proper.

The licensing agency shall not reinstate a revoked or suspended certificate or license until it has received competent evidence of the absence or control of the condition which caused its action and until it is satisfied that with due regard for the public health and safety the person's right to practice his or her profession may be safely reinstated.

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6. As set forth in the Findings 47 through 51, petitioner submitted declarations, which show that, under Business and Professions Code sections 822, 2234, and 2239, subdivision (a), respondent has engaged in acts constituting violations of the Medical Practice Act, and is unable to practice safely due to a mental condition such that permitting him to continue to practice without restrictions would endanger the public health, safety and welfare. Petitioner also established that: (1) there is a reasonable probability that she will prevail in the underlying action; and (2) the likelihood of injury to the public in not issuing an interim order outweighs the likelihood of injury to respondent in issuing the order. Thus, petitioner established that an interim order under Government Code section 11529 should be issued to ensure that the public health, safety and welfare are adequately protected until an accusation is filed and a decision is rendered thereon, or this matter is otherwise resolved.

7. As set forth in Finding 52, the public health, safety and welfare would be adequately protected if respondent were allowed to continue to practice during the interim period before the accusation is filed and a decision is rendered under the restrictions set forth below, including submitting to biological fluid testing.

ORDER

Pending further order from the Office of Administrative Hearings, Physician's and Surgeon's Certificate No. A 72117 issued to respondent Jaipal S. Sidhu, M.D., is suspended. However, the suspension is stayed so long as respondent complies with the following restrictions and conditions:

1. Respondent shall abstain completely from the use of products or beverages containing alcohol. If respondent has a confirmed positive biological fluid test for alcohol, respondent shall receive a notification from the Board or its designee to immediately cease the practice of medicine. Respondent shall not resume the practice of medicine until final decision on an accusation.

2. Respondent shall abstain completely from the personal use or possession of controlled substances as defined in the California Uniform Controlled Substances Act, dangerous drugs as defined by Business and Professions Code section 4022, and any drugs requiring a prescription. This prohibition does not apply to medications lawfully prescribed to respondent by another practitioner for a bona fide illness or condition. Within 15 calendar days of receiving any lawfully prescribed medications, respondent shall notify the Board or its designee of the issuing practitioner's name, address, and telephone number; medication name, strength, and quantity; and issuing pharmacy name, address, and telephone number.

3. Respondent shall immediately submit to biological fluid testing, at respondent's expense, upon request of the Board or its designee. "Biological fluid testing" may include, but is not limited to, urine, blood, breathalyzer, hair follicle testing, or similar drug screening approved by the Board or its designee. Respondent shall make daily contact

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with the Board or its designee to determine whether biological fluid testing is required. Respondent shall be tested on the date of the notification as directed by the Board or its designee. The Board may order respondent to undergo a biological fluid test on any day, at any time, including weekends and holidays. Except when testing on a specific date as ordered by the Board or its designee, the scheduling of biological fluid testing shall be done on a random basis. The cost of biological fluid testing shall be borne by respondent.

Respondent shall contract with a laboratory or service, approved in advance by the Board or its designee, that will conduct random, unannounced, observed, biological fluid testing. Prior to changing testing locations for any reason, including during vacation or other travel, alternative testing locations must be approved by the Board and meet the requirements above. The contract shall require that the laboratory directly notify the Board or its designee of non-negative results within one (1) business day and negative test results within seven (7) business days of the results becoming available. A certified copy of any laboratory test result may be received in evidence in any proceedings between the Board and respondent.

If a biological fluid test result indicates respondent has used, consumed, ingested, or administered to himself a prohibited substance, the Board shall order respondent to cease practice and instruct respondent to leave any place of work where respondent is practicing medicine or providing medical services.

If respondent fails to cooperate in a random biological fluid testing program within the specified time frame, respondent shall receive a notification from the Board or its designee to immediately cease the practice of medicine. Respondent shall not resume the practice of medicine until final decision on an accusation.

4. If respondent fails to comply in any respect with the restrictions and conditions set forth above, the stay shall be lifted and the suspension shall go into immediate effect.

5. All of the terms and conditions of this interim order shall remain in full force and effect until an accusation is issued and a decision is rendered thereon in accordance with Government Code section 11529, subdivision (t), or this matter is otherwise resolved.

DATED: March 24,2017

GDocuSigned by:

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KAREN J. BRANDT Administrative Law Judge Office of Administrative Hearings

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