KaMALA D. HARRIS. Attorney General of California ALEXANDRA M. ALVAREZ, Supervising Deputy Attomey General Josep F. MCKENNA TIT Deputy Attorney General State Bar No. 231195 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2997 Facsimile: (619) 645-2061 Attorneys for Complainant BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Case No. 800-2014-002975 DAVID JEE WEI CHAO, M.D. ACCUSATION 8901 Activity Road San Diego, California 92126-4427 Physician’s and Surgeon’s Certificate No. G78677, Respondent, Complainant alleges: PARTI 1, Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official capacity as the Executive Director of the Medical Board of California, Department of Consumer Affairs (Board). 2. Onor about April 20, 1994, the Medical Board issued Physician's and Surgeon’s Certificate Number G78677 to David Jee Wei Chao, M.D. (respondent). The Physician's and Surgeon's Certificate was in full force and effect at all times relevant to the charges brought herein and will expire on March 31, 2018, unless renewed. 1 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975Se nwiaanw nw 7 18 19 20 21 2 23 27 28 JURISDICTION 3. This Accusation is brought before the Board, under the authority of the following laws. All section references are to the Business and Professions Code unless otherwise indicated. 4, Section 2227 of the Code provides that a licensee who is found guilty under the Medical Practice Act may have his or her license revoked, suspended for a period not to exceed one year, placed on probation and required to pay the costs of probation monitoring, or such other action taken in relation to discipline as the Board deems proper. 5. Section 2234 of the Code states: “The board shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following: “(b) Gross negligence. “(c) Repeated negligent acts. To be repeated, there must be two or more ent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts. ion 2234 is conduct 6. Unprofessional conduct under Business and Professions Code s which breaches the rules or ethical code of the medical profession, or conduct which is unbecoming to a member in good standing of the medical profession, and which demonstrates an unfitness to practice medicine. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 375.) 7. Section 2242 of the Code states: “(a) Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022 without an appropriate prior examination and a medical indication, constitutes unprofessional conduct. ce 2 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-0029758 9, “(b) No licensee shall be found to have committed unprofessional conduct within the meaning of this section if, at the time the drugs were prescribed, dispensed, or furnished, any of the following appli “(1) The licensee was a designated physician and surgeon or podiatrist serving in the absence of the patient’s physician and surgeon or podiatrist, as the case may be, and ifthe drugs were prescribed, dispensed, or furnished only as necessary to maintain the patient until the return of his or her practitioner, but in any case no longer than 72 how “(2) The licensee transmitted the order for the drugs to a registered nurse or to a licensed vocational nurse in an inpatient facility, and if both of the following conditions exist “(A) The practitioner had consulted with the registered nurse or licensed vocational nurse who had reviewed the patient’s records, “(B) The practitioner was designated as the practitioner to serve in the absence of the patient's physician and surgeon or podiatrist, as the case may be. 3) The licensee was a designated practitioner serving in the absence of the patient’s physician and surgeon or podiatrist, as the case may be, and was in possession of or had utilized the patient's records and ordered the renewal of a medically indicated prescription for an amount not exceeding the original prescription in strength or amount or for more than one refill. ccordance with Section 120582 of the Health “(4) The licensee was ig in and Safety Code.” Section 2266 of the Code states: “The failure ofa physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct. Section 4022 of the Code states: ise in humans or “*Dangerous drug’ ... means any drug ... unsafe for self 3 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975Ren 26 28 animals, and includes the following: “(a) Any drug that bears the legend: ‘Caution: federal law prohibits dispensing without prescription,’ ‘Rx only,’ or words of similar import FIRST CAUSE FOR DISCIPLINE (Gross Negligence) 10, Respondent has subjected his Physician's and Surgeon's Certificate Number G78677 to disciplinary action under sections 2227 and 2234, as defined in section 2234, subdivision (b), of the Code, in that respondent committed gross negligence in his care and treatment of patient T'S., as more particularly alleged hereinafter: (a) From 1997 to 2013, respondent worked as a team and head orthopaedic physician for the National Football League's (NFL) San Diego Chargers Football Team (Chargers) in San Diego, California. (b) In 1997, respondent began treating patient T.S. Patient T-S. played for the Chargers at the linebacker position from 1990 until 2003, at which time he was traded to another NFL football team. In 2010, patient T.S. retired after playing twenty (20) seasons as a linebacker in the NFL. On May 2, 2012, patient .S. committed suicide by a self-inflicted gunshot to his chest. (c) On November 20, 2014, respondent was interviewed by Division of Investigation’s Health Quality Investigation Unit Investigator J.P. about the background and history of respondent's care and treatment of patient T.S. including, prescribing controlled substances, management of chronic insomnia, and physical examinations and records maintenance for patient T:S. By way of background, respondent stated that he had developed a strong relationship wi patient T.S. that began when he was a player for the Chargers. Respondent explained that it began as a “doctor / patient” relationship while treating him as a player; but over time, a close and personal friendship developed and was 4 (DAVID JEE WEI CHAO, M.D_) ACCUSATION NO. 800-2014-002975maintained by the two of them long after patient T.S, stopped play ing for the Chargers. Respondent further stated that he continued treating patient T.S. as a ‘s NEI primary care physician throughout the rest of patient T:S, career, and even after his retirement in 2010. Respondent further explained that he had maintained frequent communication and personal contact with p ent .S, over the years, that he knew him very well as his physician and his close friend, and that they often shared their personal lives with one another including discussing personal life stressors. At one point, respondent and patient T.S. formed a “pact” together with a few other friends following the suicide of a mutual friend in 2009. The “pact” was made to ensure a similar tragedy would not happen again, and they vowed to communicate any personal issues with one another for support. According to respondent, alter the “pact” was made he remained in close and frequent contact with patient .S., often discussing patient T.S.’s health and well-being, (4) On November 20, 2014, during the same interview with Investigator ent J.P., respondent indicated that he was aware of a driving accident involving pat TS. wherein the vehicle he was driving left the road and veered off a cliff located in Carlsbad, California, The accident occurred in the morning sometime after 8:00 a.m,, on or about October 18, 2010, Patient .S, survived the accident and was hospitalized. Earlier that same morning, patient T.S. had been arrested by police and released from jail on suspicion of spousal assault with injury during an incident involving patient T.S.’s girlftiend, Respondent stated that he visited patient TS. in the hospital on the day of the accident and asked him if driving his vehicle off of the cliff was an attempted suicide. Patient T.S. denied it was a suicide attempt and insisted that he had fallen asleep while driving. Respondent further stated during the interview with Investigator J.P. that he knew there had been issues between patient T.S. and his girlfriend. Respondent explained that he had questioned patient T-S. at the hospital and, finding patient T-S.’s explanation of the accident credible, he did not believe the accident was a suicide attempt. 5 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975(©) Notwithstanding the seriousness of recent events in patient T.S."s life including, the vehicular accident occurring under suspicious circumstances following an arrest and jailing for alleged domestic violence; the “pact” with patient TS. and the reasons why it was made; and respondent's close personal relationship with patient T.S. and knowledge of significant stressors in patient 1.S.’s personal and professional life; at no time did respondent ever refer patient T.S, to a mental health care provider or recommend to patient T.S. that he see a mental health care provider, for signs and/or symptoms of depression or suicidal thoughts. () Respondent prescribed Ambien’ to patient T.S. during and after his professional football career. During the last eighteen (18) months of patient T.S.’s ions for Ambien, as life, respondent wrote patient T.S. fourteen (14) prescri depicted in the table below: [coon | Pa T. 10-21-2010 | Zolpidem Tarirate TMG | 15 Vv PTs. 02-10-2011 | Zolpidem Tartrate | TAB 1oMG [30 fv TS. 04-04-2011 | Zolpidem Tartraie | TAB smG_ [30 Vv TS. 05-06-2011 | Zolpidem Tartrate | TAB SMG [30 jv TS. 05-23-2011 | Zolpidem Tartrate [TAB | 10MG | 30 Vv TS. [06-19-2011 | Zolpidem Tartrate | TAB 10MG | 30 Vv Ts. 07-27-2011 | Zolpidem Tartrate | TAB 10MG [30 iv TS. 09-21-2011 | Zolpidem Tartrate | TAB 10MG [15 Vv TS 10-24-2011 | Zolpidem Tartrate | TAB iomMG [15 Vv TS. 12-05-2011 | Zolpidem Tartrate | TAB 10MG | 20 IV TS. 12-29-2011 | Zolpidem Tartrate | TAB [iome )30 Vv TS. 02-13-2012 | Zolpidem Tartrate | TAB 10 MG. 30 IV TS. 03-15-2012 | Zolpidem Tartrate | TAB 10MG | 30 vo | TS. 04-17-2012 | Zolpidem Tartrate | TAB 10MG /30 Vv Isa brand name for zolpidem tartrate, a Schedule IV controlled substance pursuant to Health and Safety Code section 11057, subdivision (d), and a dangerous drug pursuant to s and Professions Code section 4022 6 (DAVID JEE WEI CHAO, M.D,) ACCUSATION NO. 800-2014-002975(g)_Asacontrolled substance, Ambien is a sedative used for the short-term, treatment of insomnia, typically two to three (2 to 3) weeks. If treatmeni of insomnia with Ambien extends beyond this initial period, regular follow-up by the treating physician is recommended to assess for efficacy, possible side-effects and harms, as well as to evaluate other treatment approaches including other medication classes. Ambien has central nervous system depressant effects and its use can potentially worsen symptoms of depression and suicidal thoughts in patients suffering from depression. The use of Ambien is associated with increased incidence of impaired driving and completed suicide. It should be prescribed with caution in patients suspected of having depression or suicidal thoughts, and in the lowest effective dose. (h) Respondent described patient .S. as a “modest sleeper” and that he rarely slept much throughout his NFL career. During patient T.S.’s NFL career, respondent prescribed Ambien to him upon request. According to respondent, he informed patient T.S. of the potential addiction and tolerance issues related to the use of Ambien and that patient TS. lacked any contraindications for Ambien. Specifically, respondent observed patient I.S, to be without depression or any other psychological issues, including during the week just prior to patient ‘TS. committing suicide. He believed there was no need to refer patient T.S. for a mental health evaluation by a psychologist or psychiatrist. Furthermore, respondent stated that at no time did patient T'S.’s ex-wife or children, whom he also regularly treated as patients, ever indicate to him that patient TS. was depressed. (i) On November 20, 2014, during the same interview with Investigator J.P., respondent discussed a patient note addendum that he had written and later added to patient T.S.’s medical chart on or about June 25, 2014. According to respondent's 2014 patient note addendum, “records of [respondent's] prescriptions” had been maintained in a medical record keeping system but were lost due to system failure 1 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-00297520 21 2 24 25 27 28 and were not retrievable. Significantly, however, respondent failed to document any evaluation of patient T.S. as it related to the ongoing treatment of his chronic insomnia with a controlled substance including, appropriate history and physical exam; development of a treatment plan; informed consent documenting discussion of possible risks and side efieets of treatment; periodic review of the treatment’ efficacy; and consultation with another medical provider. (i) Notwithstanding the existence of red flags involving patient TS. and his extended use of Ambien, respondent continued to prescribe the controlled substance without closely monitoring patient T.S. for ongoing signs and symptoms, of depression and suicidal ideation. For example, only three (3) days after patient 's vehicular accident occurring under suspicious circumstances following an ic violence, respondent issued another arr and jailing for alleged domes prescription to patient T.S. for Ambien. 11, Respondent committed gross negligence in his care and treatment of patient ‘T.S. which included, but was not limited to, the following: (a) Respondent failed to document an appropriate history and physical exam prior to treatment of patient TS. with a controlled substance; (b) _ Respondent failed to document the development of a treatment plan including, objectives of care prior to and during the ongoing treatment of patient T.S. with a controlled substance; (c) Respondent failed to document any informed consent including, discussion of possible risks and side effects of treatment prior to and during the ongoing treatment of patient T.S. with a controlled substance; (d) _ Respondent failed to document any periodic review of the treatment’s efficacy during the ongoing treatment of patient ‘T.S. with a controlled substance; (c) Respondent failed to consult with and/or document any consultation with another medical provider during the ongoing treatment of patient T.S. with a controlled substance, and 8 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975ao (Q) Respondent failed to properly manage patient T.S.’s insomnia with close follow-up including, the failure to exercise caution in the extended use of Ambien with a patient exhibiting signs and symptoms of depression and suicidal ideation. SECOND CAUSE FOR DISCIPLINE (Repeated Negligent Acts) 12, Respondent has further subjected his Physician's and Surgeon's Certificate Number G78677 to disciplinary action under sections 2227 and 2234, as defined in section 2234, subdivision (c), of the Code, in that respondent committed repeated negligent acts in his care and treatment of patient T.S., as more particularly alleged hereinafter: 13. Paragraphs 10(4), 10(e), 10(f), 10(h), 10(i) and 10(j), above, are incorporated by reference and realleged as if fully set forth herein. 14. Respondent committed repeated negligent acts in his care and treatment of patient T.S. which included, but was not limited to, the following: (a) Respondent failed to document an appropriate history and physical exam. prior to treatment of patient T.S. with a controlled substance; (b) Respondent failed to document the development of a treatment plan including, objectives of care prior to and during the ongoing treatment of patient T.S. with a controlled substance (©) Respondent failed to document any informed consent including, discussion of possible risks and side effects of treatment prior to and during the ongoing treatment of patient T.S. with a controlled substance; (d) Respondent failed to document any periodic review of the treatment’s efficacy during the ongoing treatment of patient T.S. with a controlled substance; (©) Respondent failed to consult with and/or document any consultation with another medical provider during the ongoing treatment of patient T.S. with a controlled substance, and — wit 9 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975(£) Respondent failed to properly manage patient T.S.’s insomnia with close follow-up including, the failure to exercise caution in the extended use of Ambien with a patient exhibiting signs and symptoms of depression and suicidal ideation, THIRD CAUSE FOR DISCIPLINE (Prescribing Without an Appropriate Prior Examination) 15. Respondent has further subjected his Physician’s and Surgeon's Certificate Number 678677 to disciplinary action under section 2227 and 2234, as defined in sections 2242 and 4022, of the Code, in that respondent prescribed, dispensed, or furnished dangerous drugs to patient T.S. out an appropriate prior examination and a medical indication, as more particularly alleged hereinafter: 16. Paragraphs 10(f), 10(h), 10(3) and 10), above, are hereby incorporated by reference and realleged as if fully set forth herein. FOURTH CAUSE FOR DISCIPLINE (Failure to Maintain Adequate and Accurate Medical Records) 17, Respondent has further subjected his Physician's and Surgeon's Certificate Number G78677 to disciplinary action under section 2227 and 2234, as defined in section 2266, of the Code, in that respondent failed to maintain adequate and accurate records in connection with his care and treatment of patient T.S., as more particularly alleged hereinafter: 18. Paragraphs 10(f), 10(h), 10(i) and 10), above, are hereby incorporated by reference and realleged as if fully set forth herein, FIFTH CAUSE FOR PLINE (Unprofessional Conduct) 19. Respondent has further subjected his Physician’s and Surgeon’ s Certificate No. G78677 to disciplinary action under sections 2227 and 2234 of the Code, in that respondent has engaged in conduct which breaches the rules or ethical code of the medical profession, or conduct which is unbecoming to a member in good standing of the medical profession, and which hereinafter: demonstrates an unfitness to practice medicine, as more particularly all wit 10 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975(a) Paragraphs 10(4), 10(e), 10(f), 10(h), 10(i), 10(), and paragraphs 11 through 18. above, are hereby incorporated by reference and realleged as if fully set forth herein. DISCIPLINARY CONSIDERATIONS 20, To determine the degree of discipline, if any, to be imposed on respondent, Complainant alleges that on or about June 8, 2012, in a prior disciplinary action entitled “In the Matter of the Accusation Against David Jee Wei Chao, M.D.,” Case Number 10-2007-187749, the Medical Board of California issued a public reprimand against Respondent's Physician's and ‘Surgeon’s Certificate No. G 78677 based on findings that respondent was convicted of a crime substantially related to the practice of medicine and engaged in dishonest and corrupt acts. ‘That decision is now final and is incorporated by reference as if fully set forth herein. 21. To further determine the degree of discipline, if any, to be imposed on respondent, Complainant alleges that on or about April 25, 2014, in a prior disciplinary action entitled “In the Matter of the First Amended Accusation Against Da Jee Wei Chao, M.D.," Case Number 10- 201 1-214928, the Medical Board of California issued a decision revoking respondent's Physician’s and Surgeon’s Certificate No. G 78677, staying that revocation, and placing respondent on probation for five (5) years on various terms and conditions. The Medical Board of California imposed discipline on respondent in this matter based on findings that respondent committed gross negligence, repeated negligent acts, failed to maintain adequate and accurate medical records, engaged in dishonest and corrupt acts, and committed general unprofessional conduct. That decision is now final and is incorporated by reference as if fully set forth herein. a wit ait uit WL Wit wh wi u (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975PRAY WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Medical Board of California issue a decision: 1. Revoking or suspending Physician’s and Surgeon’s Certificate Number G78677, issued to respondent David Jee Wei Chao, M.D.; 2. evoking, suspending or denying approval of respondent David Jee Wei Chao, M.D.’ authority to supervise physician assistants, pursuant to section 3527 of the Code: Ordering respondent David Jee Wei Chao, M.D., to pay the Medical Board of California the costs of probation monitoring, if placed on probation; and 4. Taking such other and further action as deemed necessary and proper. DATED: April 27, 2016 Executive Director Medical Board of California Department of Consumer ATairs State of California Complainant sa exn0n6s Doc Nos1298048 12 (DAVID JEE WEI CHAO, M.D.) ACCUSATION NO. 800-2014-002975