California consistently denying

Doctors Right to Cross Examine

Adverse Witness
(Not by a Royal Decree but by Order of a
Judge)
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Eliminating Doctor's Right to Cross

Examine Adverse Witness
ORDER

1.

Pending a noticed hearing on the Petition for Interim Suspension Order, which

is hereby set for December 21,2015, at 10:00 a.m. at the Officc of Administrative Hearings,
320 West fourth Street, Suite 630, Los Angeles, California, Respondent's Physician's and
Surgeon's Certificate Number A 26513 is suspended and Respondent is prohibited from
performing any act for which said celtificate is required.

2.
Prior to the noticed hearing, Respondent shall be examined by a physician and!
or psychologist in the Depattment of Gerontology at the University of California, Los
Angeles, School of Medicine, to determine whether his ability to practice medicine safely is
impaired due to mental or physical illness affecting competency. The examining doctor(s)
shall not be called to testify at any stage of these proceedings.

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RALPH B. D)(SH
Administrative Law Judge
Office of Administrative Hearings

BEFORETIlJ<:
MEDICAL BOARD OF CALIFORNIA
DEP ARTMENT OF CONSliMER AFFAIRS
STATE OF CALIFORNIA

In the Matter of the Ex Parte Petition for

Case No. 05-2011-217285

Interim Order of Suspension Against:

OAHNo.2015110914
FLEIX LOUIS NEGRON, M.D.,
Physician's and Surgeon's
Cel1ificate Number A 26513
_ _R_espondenL

Ex Parte Interim Order of Suspension

On November 30,2015, Petitioner Kimberly Kirchmeyer, Executive Ofticer of the
Medical Board of California, acting in her official capacity, presented an ex parte petition for
an interim order of suspension of the physician's and surgeon's certificate of Felix Louis
Negron, M.D. (Respondent).
Cindy 1V1. Lopez, Deputy Attorney General, represented Petitioner.
James Strudel', Attorney at Law, represented Respondent who was also present.
]11e ex parte petition and all declarations and exhibits filed in support thereof were
served in compliance with the provisions of Government Code section 11529 and California
Code of Regulations, title 1, section 1012.
Ralph B. Dash, Administrative Law Judge, Office of Administrative: Hearings, Los
Angeles California, read and considered the ex parte Petition for Interim Order of
Suspension, the declarations and points and authorities filed in support thereof, the
declarations and points and authorities filed in opposition thereto, and heard argument of
counsel. The Administrative Law Judge nm/./ makes the following Findings of Faet and
1"egal Conclusions, and issues the following Order.

FINDINGS OF FACT

1.
Petitioner made the petition in her ofticial capacity as the Executive Officer of
the Medical Board of California (Board).

2.
At all times pertinent hereto Respondent \>vas and nov\' is licensed by the Board
as a physician and surgeon, certificate number A 26513, first issued on February 11, 1975.
The license is current and is due to expire on November 30, 2016.
In a disciplinary action entitled In the Jv[atter of the Accusation Against Felix
Negron, MD., Board case number 05-2011-21728, the parties resolved the allegations
alleged by the Board's issuance of a public reprimand to Respondent, with the conditions
that he successfully complete the medical record keeping course and the Physician
Assessment and Clinical Education Program (PACE) at the University of California, San
Diego (UCSD). Respondent has taken and successfully completed the record keeping
course. Respondent completed the PACE program, but failed to complete it successfully.

3.

4.
The PACE program is divided into two sections, one dealing with the
physician's physical and mental competence to practice medicine, and one dealing vlith the
physician's clinical knowledge and abilities. The following, taken tr'om aPACE brochure,i
describes the program generally.
Each PACE Competence Assessment includes interactive clinical observation
and education in the participant's specialty in an active clinical environment at
the UC San Diego Health System. Although the participating physician is not
able to perform "hands-on" medicine, he/she will be integrated into the day-today clinical education activities of the environment. h is a formative
assessment oCthe participant's clinical skills, knO\ivledge andjudgm~nt.I~ ...1
Each Physician Competency Assessment evaluates [he six general domains of
clinical competence defined by the Accreditation Council on Graduate
Medical Education (ACGME) and the American Board ofl'vIedical Specialties
(ABMS). These competencies include: patient care, medical knowledge,
practice-based learning <md improvement, interpersonal and communication
skills, professionalism, and systems-based practice. A physician must be
competent in each of these six domains in order to safely practice medicine.
These six domains define competent physician practice in the United States. In
addition, a physician must have the physical and mental ability to perform the
duties o1'h1s or her job. This is why a health screening is a standard component
of our Physician Competency Assessment.

5.
At the time he was ordered to attend the PACE program, Respondent \vorked
part-time at an urgent care center; he was, in essence, practicing "family medicine.
Accordingly, his five-day clinical evaluation was in that area of practice. He was I1rst tested
under the direction of two physicians, using four simulated patients. At the conclusion of
The brochure was not made a part of the record. The PACE program has been
in ex istence for almost 20 years and has become a key component of many of the Board's
disciplinary orders. Under the provision of Government Code section 11515, official notice
is taken of the quoted material.

this testing, the tv,.'o doctors rated Respondent's "Average Overall Clinical Competence
Score" as being in the "satisfactory" range.
6.
Respondent then attended four and om~~half days of "clinical sessions." He
"shadowed" seven different faculty doctors as they attended their patients. These doctors
\vere, for the most part most part, associated with the UCSD Family Medicine Clinic. These
seven doctors each independently rated Respondent in the categories of "promptness,
appearance, participation, professional behavior, communication skills, medical knowledge,
and the ability to access evidence based medicine."
7.
Two of the doctors rated Respondent "superior" in all seven categories. One
doctor rated Respondent superior in all categories with the exception of one "satisfactory"
score. Two doctors rated Respondent superior in all categories with the exception of two
satisfactory scores. One doctor rated Respondent with tv'lo superior scores and three
satisfactory scores (vvith one category "not observed"). Finally, one doctor rated Respondent
superior in five categories, satisfactory in one category, and "unsatisfactory" in one category.
7.
The single unsatisfactory score Respondent received was from Dr. Robert Lee,
who rated Respondent unsatisfactory in the category of "professional behavior." In the
PACE final report (part of Exhibit 2), Dr. Lee commented that the unsatisfactory score was
because Respondent asked him "to take a break shadO\ving and asked to not accompany me
for the next patient so that he could rest. Also, without advanced notice, Dr. Negron asked to
leave the session carly around 4 p.m., noting he was going to visit relatives and then head
back home."
8.
What the PACE evaluators apparently found most problematic was the report
regarding Respondent' neuropsychological evaluation. This report was prepared by William
Perry, Ph.D. and is referenced extensively in the PACE final report. Dr. Perry's repOlt
reads, in part, as follows:
[Respondent] demonstrated deficits in fine motor skill with his non-dominant
hand and impairments in executive functions .... [His] scores on measures of
novel prohlem-solving were impaired. lIe also demonstrated domain~wide
impainnents on measures of attention, processing speed, and learning and
memory .... Given the extent of his poor cognitive perform;mce in the areas of
memory and attention, the observed cognitive deficits are consistent with
someone who may have a Mild Neurocognitivc Disorder. ... The purpose of
this Fitness for Duty evaluation was not to make a definitive diagnosis, but
rather to characterize his eunent level of cognitive functioning .... Overall, his
deficits on cognitive testing are of concern and sufficiently deticient that they
constitute a concern for his independent practice of medicine.

//

9.

The PACE report concluded with the follovving statement:

Based on the findings from our 2-Phase Assessment and Dr. Perry's
neuropsychological evaluation, Vv'C have grave concerns about Dr. Negron's
ability to safely practice medicine. Dr. Negron should get a complete workup
orthe cognitive deficits outlined by Dr. Perry and undergo any recommended
treatment for these deficits. Dr. Negron should cease the practice of medicine
until such time that he has been deemed fit to practice following an
independent fitness for duty evaluation. The fitness for duty evaluation should
include, at the bare minimum, a repeat neuropsychological evaluation and
complete neurological evaluation.
10.
In response to the Petition, Respondent olTered the declaration of C. R. Joshi,
M.D., which reads in part as follows:
3.
I am the owner of Simi Health Center, an urgent care facility in Simi
Valley, CA.
4.
For the past 7 years, Simi Health Center has employed FELIX
NEGRON, M.D. as a part time physician. During the past 7 years, I have
worked with FEI,IX NEGRON, M.D. and at least one other doctor as part of a
quality assurance Lcam where the doctor's (sic) at the clinic review each
other's work as part of a daily physician peer review process.
5.
At all times FELLX NEGRON, M.D. has demonstrated to me the ability
to practice medicine \vithin the standard of care as peer reviewed by me and at
least one other physician daily. His medical history taking, physical
examinations, impressions, and treatment plans have all been at or above the
community medical standard of care.
11.
A decision prohibiting Respondent's unrestricted practicc of medicine should
not be made lightly. It cannot be determined, on the state of this record and on an ex parte
basis, whether the privileges conferred by Respondent's certificate to practice medicine
should be curtailed. On the one hand, there is concern that Respondent may have a
neurocognitivc deficit that could pose a threat to the public's health, safety, and welfare. On
the other h,md, Respondent has demonstrated that he apparently docs have the ability to
practice medicine safely. Accordingly, at the hearing of this matter, pursuant to the authority
granted in Government Code section 11371, subdivision (c), the Administrative Law Judge
ordered Respondent to be examined by a physician and/or psychologist in the Department of
Gerontology (Respondent is 73 years old) at the University of California at Los Angeles. 2
2

In another case with similar facts, the Administrative Law Judge issued an
identical order resulting in the receipt of a timely, concise, and well-reasoned report by Dr.
Erin A. Cook of that Department. The parties are requested to again utilize the services of
Dr. Cook if she is available.

The doctor should be requested to examine Respondent and opine v.hether Respondent "is
unable to practice medicine safely because his ability to practice medicine is impaired due to
mental or physical illness affecting competency."} The reporting doctor may not be called as
a witness by either party at any stage of these proceedings. As a further precaution, and [or
protection of the public, Respondent should be prohibited from practicing medicine at least
until the next hearing 011 this matter, by which time the independent exarniner should have
filed his or her report.

LEGAL CONCLUSIONS
1.
Respondent may be impaired within the me,ming of Business and Professions
Code Section 822. The evidence presented clearly shows that his unrestricted practice of
medicine may result in a violation the Medical Practice Act, within the meaning of
Government Code Section 11529, subdivision (a), by reason of Findings 3 through 9.
Permitting him to engage in the profession for \vhich his license was issued may endanger
the public health, safety and welfare.

2.
The fact that Respondent's possible neurocognitive delicits have not as yet
resulted in patient harm is of no moment. In Griffiths v. Superior COllrt (2002) 96
Cal.AppAth 757, 770-771, the court stated:
Griffiths argues that he cannot be disciplined because no evidence showed his
drinking and driving convictions [sic] resulted in any harm to patients. If
accepted, this argument would have a serious implication for license: discipline
proceedings. In essence, it would prohibit the imposition of discipline on a
licensee until harm to patients had already occurred. We reject this argument
because it overlooks the preventative 11.1l1ctions of license discipline, whose
main purpose is protection of the public (Bryce v. Board of Medical Quality
Assurance, supra, 184 Cal.App.3d at p. 1476), but \;I/h03e purposes also
include prevention of future harm (In re Kelley (1990) 52 Ca1.3d 487,496) and
the improvement and rehabilitation of the physician (Windham v. Board of
Medical Quality Assurance, supra) 104 Cal.App.3d at p. 473). To prohibit
license discipline until the physician-licensee harms a patient disregards these
purposes: it is far morc desirable to discipline before a licensee harms any
patient than after harm has occurred.
(Italics in originaL)
(To the same effect, see also Kearl v. Board ofii1edical Quality Assurance (1986) 189
Cal.App.3d 1040, J 053.)

'fhis language tracks that contained in Government Code section 820.

3.
Serious injury could result to the public, within the meaning of Government
Code Section 11529, subdivision (b), if this matter were to be heard on the full fifteen days'
notice required by that code section, by reason of Findings 3 through 11.

ORDER

1.

Pending a noticed hearing on the Petition for Interim Suspension Order, which

is hereby set for December 21,2015, at 10:00 a.m. at the Officc of Administrative Hearings,
320 West fourth Street, Suite 630, Los Angeles, California, Respondent's Physician's and
Surgeon's Certificate Number A 26513 is suspended and Respondent is prohibited from
performing any act for which said celtificate is required.

2.
Prior to the noticed hearing, Respondent shall be examined by a physician and!
or psychologist in the Depattment of Gerontology at the University of California, Los
Angeles, School of Medicine, to determine whether his ability to practice medicine safely is
impaired due to mental or physical illness affecting competency. The examining doctor(s)
shall not be called to testify at any stage of these proceedings.

r~

, /'

<:,~::. 1/\ ('"

,_U::.~::'t-

>:~

v ..

')

,.-

RALPH B. D)(SH
Administrative Law Judge
Office of Administrative Hearings