Ruben v. Amb

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DAVID A. RUBEN, Plaintiff/Appellant,

v.

ARIZONA MEDICAL BOARD, Defendant/Appellee.

No. 1 CA-CV 18-0079
FILED 2-7-2019

Appeal from the Superior Court in Maricopa County
No. LC2017-000003-001
The Honorable Patricia A. Starr, Judge

AFFIRMED

COUNSEL

Robert S. Wolkin PC, Tucson
By Robert S. Wolkin
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael Duval Raine
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 David A. Ruben appeals the superior court’s order upholding
the February 9, 2016 Decision (“Decision”) of the Arizona Medical Board
placing Dr. Ruben on probation and restricting his practice for two years.
For the following reasons, we affirm the Decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Board began investigating Dr. Ruben, a board-certified
psychiatrist with a pain-management practice, pursuant to Arizona
Revised Statutes (“A.R.S.”) section 32-1451, after receiving complaints
regarding Dr. Ruben’s controlled-substance prescribing practices from a
patient’s (GM) relative and a pharmacy in relation to seven other patients
(MB, PG, AT, FS, ME, DB, CD). While the Board investigated these
complaints, it received notice that in 2013 the Drug Enforcement Agency
(“DEA”) suspended Dr. Ruben’s controlled-substance prescribing
privileges in connection with conduct for which Dr. Ruben had already
been subject to discipline by the Board in 2010 in accordance with a consent
agreement (the “DEA matter”).

Prior Discipline

¶3 In 2009, the Board investigated Dr. Ruben for inappropriately
prescribing opioids to a patient without properly assessing the patient’s
need and monitoring the risk over the course of the treatment. As a result
of the investigation, Dr. Ruben entered into a consent agreement that
included continuing medical education and periodic chart review of his
patients. In 2010, the Board began investigating Dr. Ruben for similar
prescribing practices and violations based on complaints received by the
Board and the patient charts collected for review pursuant to the prior
consent agreement. Dr. Ruben again entered a consent agreement with the
Board (the “2010 Consent Agreement”) that restricted Dr. Ruben’s ability
to prescribe opioids for a year.

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¶4 In 2008, the DEA initiated an investigation into Dr. Ruben’s
practice, sending two undercover “cooperating sources” acting as patients.
The practices in question were similar to the prescribing practices that were
the subject of the 2009 and 2010 consent agreements. In 2011, the DEA
alleged Dr. Ruben violated federal law by prescribing controlled substances
without a legitimate medical purpose. For support, the DEA proffered
evidence from the 2008 undercover investigation and the prior consent
agreements between Dr. Ruben and the Board. The DEA Administrator
agreed with the federal administrative law judge, who oversaw the hearing,
concluding that the DEA did not establish Dr. Ruben violated federal law
with respect to the two “undercover visitors.” However, based on the
admissions and terms of the consent agreements with the Board, the DEA
Administrator found sanctions were appropriate. In 2013, the DEA
suspended Dr. Ruben’s DEA Certificate for one year.

Current Allegations

¶5 The Board forwarded the current complaints to Dr. Ruben,
asked him to respond, and requested the patients’ medical records.
Dr. Ruben submitted the records and responses for each allegation. The
Board forwarded the complaints, Dr. Ruben’s responses, and the patients’
medical records to two experts: Dr. Ashby and Dr. Peairs. Each of the
Board’s experts reviewed four of the patient files and rendered opinions
regarding Dr. Ruben’s professionalism. After receiving the experts’
opinions, the Board, through counsel in the Attorney General’s office (the
“State”), filed a complaint and notice of hearing alleging that Dr. Ruben had
engaged in unprofessional conduct as defined by: A.R.S. § 32-1401(27)(r)
(“conduct or practice that is or might be harmful or dangerous to the health
of the patient or the public”); A.R.S. § 32-1401(27)(e) (failing to maintain
adequate patient records); A.R.S. § 32-1401(27)(a) (violating any federal or
state law); A.R.S. § 32-1401(27)(t) (violating or attempting to violate any of
the provisions under Chapter 13 relating to medicine and surgery); and
A.R.S. § 32-1401(27)(q) (“sanctions imposed by an agency of the federal
government”). 1 The complaint also alleged that Dr. Ruben violated A.R.S.
§ 32-1451.01 and A.R.S. § 32-3206 when he disclosed investigation
information to a patient to assist in his defense.

1 Although the Arizona Legislature has amended statutes cited in this
decision after the date of the first complaint to the Board, the revisions are
not relevant to this appeal. Thus, unless otherwise noted, we cite to the
current version of the statutes.

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¶6 The State presented the evidence the Board obtained in its
investigation during an eight-day administrative hearing before an
administrative law judge (“ALJ”). Dr. Ruben testified on his own behalf, as
did his two experts and several of his patients. The ALJ concluded:
(1) Dr. Ruben committed unprofessional conduct as defined by A.R.S.
§ 32-1401(27)(a) and (q) in relation to the DEA matter; (2) Dr. Ruben
committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(t) by
violating A.R.S. § 32-3206(B) when Dr. Ruben disclosed information from
Dr. Ashby’s report to a patient; and (3) Dr. Ruben committed
unprofessional conduct as defined by A.R.S. § 32-1401(27)(e) by failing to
document conversations he had with several patients in connection with his
defense in this case. The ALJ determined there was not clear and convincing
evidence that Dr. Ruben deviated from the standard of care approved by a
respectable minority of allopathic physicians in relation to his treatment of
the eight patients, and thus did not commit unprofessional conduct as
defined by A.R.S. § 32-1401(27)(r). Additionally, because Dr. Ruben had
already been twice punished for the same conduct that was the subject of
the DEA Matter, the ALJ concluded that the A.R.S. § 32-1401(27)(a) and (q)
violations did not warrant additional discipline and recommended that the
Board enter a decree of censure against Dr. Ruben.

¶7 Before the Board met to review the ALJ’s recommendation,
the State presented the Board with a motion containing its proposed
findings and conclusions. The State’s motion “urge[d] the Board to accept,
modify, and reject, in part, the ALJ’s decision,” and requested the Board
revoke Dr. Ruben’s license. The State recommended the Board adopt the
ALJ’s findings of fact, but proposed modifications that more accurately
reflected the qualifications of the State’s witnesses, while noting the lack of
pain-management expertise of Dr. Ruben’s experts. The Board adopted the
State’s proposed modifications to the findings in its entirety.

¶8 Next, the Board considered whether it should adopt the ALJ’s
conclusions of law, the State’s version, or create its own. Some Board
members took issue with prohibiting the use of investigation information
to mount a proper defense. After an executive session with independent
counsel, the Board rejected the ALJ’s conclusions of law pertaining to
Dr. Ruben’s alleged unprofessional conduct for sharing investigation
materials with a patient to aid in his defense. The Board adopted the State’s
remaining proposals. Absent from the remaining conclusions was the ALJ’s
conclusion that the Board could not discipline Dr. Ruben for the DEA
Matter and the conclusion that characterized Dr. Ashby’s position as
“extreme” and a “substantial minority” view. The accepted conclusions
reversed the ALJ’s conclusions regarding Dr. Ruben’s treatment of the eight

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patients and added conclusions that his treatment of the patients
constituted unprofessional conduct.

¶9 The Board rejected the State’s recommendation to revoke
Dr. Ruben’s license. Instead, the Board issued a decree of censure, placed
him on probation, and restricted his practice to prohibit him from
“prescribing, administering or dispensing, any Schedule II controlled
substances for a period of two years.” The Board’s independent counsel
advised: “the law requires that [the Board] state a rational [for modifying
or rejecting the ALJ’s findings and conclusions]. For that [the Board] can
either state that or adopt the State’s rationale as set forth in its motion.” The
Board opted to adopt the State’s rationale, and as written justification for
the modification of the ALJ’s decision it submitted the following statement
with the order:

The Board modified the Findings of Fact and Conclusions of
Law as requested by the State in its “Motion to Modify/Reject
ALJ’s Recommended Decision,” enclosed, and for the
purposes discussed therein. Additionally, the Findings of
Fact, as modified, based upon the evidence presented in the
case, support the modified Conclusions of Law. The Board
rejected the ALJ’s recommended Conclusions of Law 24
through 26 as it found that MB was a witness assisting in
Respondent’s defense and did not improperly view case
material.

The Board modified the ALJ’s recommended Order to include
probation and a practice restriction in addition to the
recommended Decree of Censure, in order to best protect the
public.

¶10 Dr. Ruben moved for rehearing. The State opposed the
motion for rehearing but conceded that it had failed to allege that Dr. Ruben
had maintained inadequate records under A.R.S. § 32-1401(27)(e) for MB,
FS, and ME, which was the basis of Conclusion 7, and stipulated to a limited
Board review to eliminate the unsupported conclusion. The Board issued a
modified Decision deleting Conclusion 7.

¶11 Dr. Ruben appealed to the superior court, which affirmed the
Board’s Decision. Dr. Ruben timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), -2101(A)(1), and -913.

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DISCUSSION

¶12 On appeal, Dr. Ruben argues the Board 2 erred by:
(1) concluding he committed unprofessional conduct by receiving DEA
sanctions; and (2) imposing sanctions without complying with A.R.S.
§ 41-1092.08(B). We will affirm the Board’s action unless it is contrary to
law, arbitrary and capricious, an abuse of discretion, or not supported by
substantial evidence. A.R.S. § 12-910(E); Gaveck v. Ariz. State Bd. of Podiatry
Exam’rs, 222 Ariz. 433, 436, ¶ 11 (App. 2009). The Board’s modified Decision
concluded that Dr. Ruben’s conduct was unprofessional as defined by
A.R.S. § 32-1401(27)(a) (violating any federal or state law), A.R.S.
§ 32-1401(27)(q) (“sanctions imposed by an agency of the federal
government”), and A.R.S. § 32-1401(27)(r) (“conduct or practice that is or
might be harmful or dangerous to the health of the patient or the public”).

A. The Board Erred by Finding that Dr. Ruben Committed
Unprofessional Conduct as Defined by A.R.S. § 32-1401(27)(a) and
(q).

¶13 The Board concluded that Dr. Ruben committed
unprofessional conduct as defined by A.R.S. § 32-1401(27)(a) and (q)
because the DEA suspended Dr. Ruben’s certificate under the federal
Controlled Substances Act. Dr. Ruben maintains that because the conduct
supporting the DEA action was the subject of prior Board discipline, the
Board could not charge him again for unprofessional conduct. We agree.

1. The Board May Not Charge Dr. Ruben with Additional
Allegations of Unprofessional Conduct for Conduct
Encompassed in the Prior Disciplinary Actions.

¶14 As noted above, in 2010 Dr. Ruben entered a consent
agreement with the Board and accepted responsibility and sanctions for his
conduct. In 2013, the DEA suspended Dr. Ruben’s prescribing privileges
based on his conduct supporting the 2010 Consent Agreement. The Board
concedes that “the misconduct that gave rise to the Board’s 2009 and 2010
consent agreements was the sole basis for the DEA’s 2013 Order, given that
the federal government had not proven other, unrelated violations that

2 The Board is an “agency” under the Administrative Procedure Act,
A.R.S. § 41-1001(1), and the Board’s disciplinary actions must comply with
the procedures therein. See Uniform Administrative Hearing Procedures,
A.R.S. §§ 41-1092 to -1092.12.

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arose from an undercover operation.” The Board rejected the ALJ’s
conclusion that:

because Dr. Ruben has already been punished twice for the
acts that [the DEA Administrator] found constituted cause to
suspend his DEA certificate under the federal Controlled
Substances Act, the Administrative Law Judge in this matter
does not find that the Board established by clear and
convincing evidence that [the Administrator’s] decision
furnishes additional grounds to impose a third round of
sanctions against Dr. Ruben’s license or ability to practice
allopathic medicine in the State of Arizona.

¶15 Dr. Ruben argues that the 2010 Consent Agreement precludes
the Board from charging him again with unprofessional conduct as defined
by A.R.S. § 32-1401(27)(a) and (q) for the underlying conduct. “The Board
does not agree, however, that [] Dr. Ruben’s misconduct was the factual
basis for the subsection ([q]) violation. That violation—by its very
nature—was based on only the fact that the DEA had restricted Dr. Ruben’s
prescribing privileges.” The Board argues that it could not have alleged Dr.
Ruben committed unprofessional conduct as defined by A.R.S.
§ 32-1401(27)(q) until the DEA issued its decision, several years after the
2010 Consent Agreement.

¶16 A consent to discipline is akin to a plea agreement in that a
doctor stipulates to a specific form of discipline in lieu of a hearing. See c.f.
Coy v. Fields, 200 Ariz. 442, 445, ¶ 9 (App. 2001) (“Plea agreements are
contractual in nature and subject to contract interpretation.”). We review a
contract to determine the intent of the parties, considering the plain
meaning of the words in the context of the contract as a whole. Dunn v.
FastMed Urgent Care PC, 245 Ariz. 35, 38 ¶ 10 (App. 2018).

¶17 The 2010 Consent Agreement states:

This Order is the final disposition of case numbers
MD-09-0131A and MD-09-0250A, MD-09-0926A,
MD-09-1263A and MD-10-0100A. Moreover, it is agreed that
there will be no further charges brought against Respondent arising
out of past or current patient charts that the Board has taken
possession of to date.

(Emphasis added.) The Board argues that the language was in reference to
the “chart reviews” ordered by the consent agreement in 2009, and nothing

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in either agreement precluded it from pursuing further discipline. We
disagree.

¶18 Looking at the plain meaning of the words in the consent
agreement, in the context of an agreement made in lieu of a hearing, and
resulting in discipline, the reasonable interpretation of the provision is that
the Board agreed not to institute further disciplinary proceedings against
Dr. Ruben for conduct that the Board either knew, or had reason to know,
from the patient charts.

¶19 The Board argues that “[h]ad the federal government acted
first, the Board could still bring a complaint on the merits underlying the
2009 and 2010 consent agreement and include the subsection ([q])
violation.” While this statement is true, it was no more or less true that
Dr. Ruben violated federal law and was subject to DEA sanctions at the time
the Board entered into its agreements. It is the unprofessional conduct that the
Board was sanctioning. If the Board knew or had reason to know of
potential federal violations at the time of either consent agreement, it could
have determined the federal violations were deserving of increased
sanctions. However, the finding by the DEA of unprofessional conduct by
Dr. Ruben did not change the nature of the conduct already sanctioned by
the Board.

¶20 Nevertheless, the Board charged Dr. Ruben with violations
that indisputably “arose out of” the subject patient charts. Such a breach
warrants relief in the form of specific performance under principles of
contract law. See Hovey v. Superior Court In & For County of Maricopa, 165
Ariz. 278, 281–82 (dismissal was appropriate under contract principles
when the state breached its part of the bargain by bringing subsequent
charges). Dr. Ruben stated to the Board that he would not have entered into
the 2010 Consent Agreement if he had known that it “was an empty
promise.” See Santobello v. New York, 404 U.S. 257, 262 (1971) (“[W]hen a plea
rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.”). Thus, the Board improperly concluded that Dr.
Ruben was guilty of additional unprofessional conduct for receiving DEA
sanctions and violating federal law based on the same conduct it had
already sanctioned.

2. Discipline is Based on Unprofessional Conduct.

¶21 Underlying conduct is either unprofessional or it is not. Once
a doctor is found to have committed unprofessional conduct, it is the

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underlying unprofessional conduct that is subject to discipline. An act that
may be designated as unprofessional under several subsections is
nonetheless one instance of unprofessional conduct. The Board, however,
has broad discretion to sanction “as it deems appropriate” under the
circumstances. See A.R.S. § 32-1451(M) (“Any doctor of medicine who after
a formal hearing is found by the board to be guilty of unprofessional
conduct . . . is subject to censure, probation as provided in this section,
suspension of license or revocation of license or any combination of these,
including a stay of action, and for a period of time or permanently and
under conditions as the board deems appropriate for the protection of the public
health and safety and just in the circumstance.” (emphasis added)); see also
A.R.S. § 12-910(E) (“The court shall affirm the agency action unless the court
concludes that the agency's action is contrary to law, is not supported by
substantial evidence, is arbitrary and capricious or is an abuse of
discretion.”). Additionally, “[i]n determining the appropriate disciplinary
action . . . the board shall consider all previous nondisciplinary and
disciplinary actions against a licensee.” A.R.S. § 32-1451(U).

¶22 While it was error to charge Dr. Ruben again for
unprofessional conduct based on the same conduct sanctioned in the 2010
Consent Agreement, the Board alternatively argues that nothing indicates
that it imposed discipline based on the DEA matter. We agree. The Board
rejected the State’s proposed discipline—to revoke Dr. Ruben’s
license—and instead issued a decree of censure, placed Dr. Ruben on
probation for two years, and restricted his prescribing privileges for two
years with respect to Schedule II controlled substances only. The Board
extensively discussed the appropriate discipline, considering Dr. Ruben’s
prior misconduct, and it imposed discipline that targeted “activities that [it]
felt were dangerous to the public,” without overly restricting Dr. Ruben’s
practice. The discipline was narrowly tailored to curtail the current
unprofessional conduct and was not excessive.

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B. The Board’s Written Justification Was Sufficient to Support the
Board’s Modification of the ALJ’s Decision.

¶23 Next, Dr. Ruben argues that the Board did not provide an
adequate written justification for rejecting the ALJ’s conclusions of law 10,
13, and 14 as required by A.R.S. § 41-1092.08(B). He contends that because
the Board’s modifications did not satisfy the statutory requirement, the
ALJ’s conclusions remain.

¶24 At the time of the Board’s decision, the Board’s obligations
were as follows:

If the [Board] rejects or modifies the [ALJ’s] decision, [it] must
file with the office . . . and serve on all parties a copy of the
administrative law judge’s decision with the rejection or
modification and a written justification setting forth the
reasons for the rejection or modification.

A.R.S. § 41-1092.08(B) (2015). The statute has since been amended to require
a written justification for a modification or rejection of each finding of fact
or conclusion of law. A.R.S. § 41-1092.08(B). Dr. Ruben argues that: (1) the
applicable amendment to A.R.S. § 41-1092.08(B) was a clarification, rather
than a change in law, thus we should use the amendment to interpret the
prior version; and (2) because the Board failed to provide a written
justification for the rejections, the ALJ’s conclusions remain intact and
“make the board order for sanctions unsupportable on any theory.” We
disagree with Dr. Ruben. The amendment to A.R.S. § 41-1092.08 changed
the law, and under the prior version of the law—which is applicable to this
Decision—the justifications presented were sufficient to support the
Board’s Decision that Dr. Ruben engaged in unprofessional conduct.

1. The Amendment to A.R.S. § 41-1092.08 is a Change in Law.

¶25 Dr. Ruben argues that the amendment clarifies the prior
version of A.R.S. § 41-1092.08(B), and thus the Board’s written justification
was insufficient under the statute. Conversely, the Board argues the
amendment is a change of law and the Board’s written justification
sufficiently satisfy A.R.S. § 41-1092.08(B) but admits that “there are no
published decisions interpreting the requirement.”

¶26 There is a presumption that an amendment changes rather
than clarifies the existing law. Microchip Tech. Inc. v. State, 230 Ariz. 303, 308,
¶ 18 (App. 2012). An amendment enacted shortly after an earlier version of
a statute that clarifies ambiguities may rebut the presumption. State v.

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Sweet, 143 Ariz. 266, 271 (1985) (an amendment enacted one year after the
original version indicated an intent to clarify the earlier statute). If,
however, the amendment is enacted a considerable amount time after the
earlier version and contains significant additions to or departures from the
prior law, this indicates that the legislature intended to change the law. San
Carlos Apache Tribe v. Superior Court ex rel. County of Maricopa, 193 Ariz. 195,
209–10, ¶ 31 (1999). Here, there is little doubt the amendment was intended
to change the law.

¶27 The 2017 amendment was enacted as part of the Right to Earn
a Living Act (the “Act”), which limits occupational regulations that
interfere with an individual’s “fundamental civil right” to pursue a chosen
profession and directs the courts to apply “heightened judicial scrutiny”
when reviewing licensing cases. See Right to Earn a Living Act, 2017 Ariz.
Sess. Laws, ch. 138, § 6 (1st Reg. Sess.). The amendment was passed
seventeen years after the enactment of the prior version of A.R.S.
§ 41-1092.08(B). See San Carlos Apache, 193 Ariz. at 209, ¶ 30 (“[T]o suggest
that the 1995 Legislature knows and can clarify what the 1919 or 1974
Legislatures intended carries us past the boundary of reality and into the
world of speculation.”). The amendment did not merely modify the Board’s
requirement to provide a written justification setting forth the reasons for
rejection or modification of each finding of fact or conclusion of law, but it
also requires the Board to send the president of the senate and the speaker
of the house of representatives the written justification for any modification
or rejection of a conclusion of law. A.R.S. § 41-1092.08(B). Given all of the
amendment’s additional requirements to the Board’s duties, it constitutes a
significant change to the prior law.

2. The Board’s Written Justification Was Sufficient Under the
Prior Statute.

¶28 Alternatively, Dr. Ruben argues that with the amendment’s
changes “[t]here certainly appears to be a certain sensitivity on the part of
the legislature, acknowledging that Boards have been far too lax in
explaining themselves about changes to ALJ decisions.” Dr. Ruben urges
that we recognize the legislature’s intent and require more than a general
explanation for the Board’s departure from the ALJ decision.

¶29 Additional legislative activity supports Dr. Ruben’s assertion
regarding legislative intent. When signing the Act, the Governor included
a supporting statement:

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It is simply unjust for government to decide who can and
cannot earn a living except when absolutely necessary to
protect public health and safety. All too often, occupational
licensing boards create fiefdoms demanding individuals face
burdensome training requirements, excessive fees and fines,
and arbitrary investigations.

Governor’s Approval Message, Right to Earn a Living Act, 2017 Ariz. Sess.
Laws, ch. 138 (1st Reg. Sess.) (Apr. 5, 2017). The Governor encouraged the
legislature to make further changes to reform occupational licensing
boards. In the following session, the legislature amended A.R.S. § 12-910(E),
directing a court reviewing an agency decision to decide questions of law
without deference to any previous determination that may have been made
on the question by the agency.

¶30 However, the subsequent actions of the Governor and
legislature provide additional evidence of the intent of both elected
branches of government to change the law in favor of increasing judicial
scrutiny of—and agency accountability for—occupational licensing actions.
The Board issued this decision before the amendment was enacted and
cannot be bound by law not in effect at the time of its decision. Even if Dr.
Ruben were correct that the Board did not provide an adequate justification
to support the modification, the appropriate remedy would be to remand
to the Board to allow it the opportunity to comply with the statutory
procedural requirement. See Caldwell v. Ariz. State Bd. of Dental Exam’rs, 137
Ariz. 396, 401 (App. 1983).

¶31 As the superior court noted, incorporation of the State’s
motion to serve as the Board’s reasoning is not the “best practice,” but we
are not tasked to determine the best practice. We are tasked to determine if
the Board’s modification of the ALJ’s decision is supported by the record.

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In this case, and under the prior statute, we conclude the justification for
the modification was sufficient. 3

3. Substantial Evidence Supports the Board’s Decision.

¶32 The Board found Dr. Ruben guilty of unprofessional conduct
as defined by A.R.S. § 32-1401(27)(r), which we have interpreted to capture
conduct that was or might be unreasonably harmful or dangerous to the
health of the patient or the public under the circumstances, given the
applicable standard of care. Webb v. State ex rel. Ariz. Bd. of Med. Exam’rs, 202
Ariz. 555, 561, ¶ 27 (App. 2002).

¶33 The most notable change was the Board’s rejection of ALJ’s
Conclusion 10, referring to the respectable minority doctrine, which holds
that a doctor’s use of a method of care does not fall below the standard of
care if “a respectable minority of physicians approve the disputed
technique and so long as the defending doctor properly employed that
technique.” See Borja v. Phoenix Gen. Hosp., Inc., 151 Ariz. 302, 304 (App.

3 Given the amended statute’s requirement of individual written
justification for a modification or rejection of a finding of fact or conclusion
of law, and the direction from the legislature for “heightened judicial
scrutiny,” we encourage the Board to provide findings of fact and
conclusions of law that allow for a meaningful judicial review of the
lawfulness of a decision. See Post v. Indus. Comm’n of Ariz., 160 Ariz. 4, 7
(1989) (the reviewing court must be able to determine the factual basis for,
and the legal propriety of, the conclusions from a decision); Osborne v. Ariz.
Med. Bd., 1 CA-CV 16-0250, 2017 WL 2544508, at *4, ¶ 15 (Ariz. App. June
13, 2017) (mem. decision) (for unprofessional conduct under A.R.S.
§ 32-1401(27)(r), an express finding that potential or actual harm is
unreasonable under the circumstances “is not difficult to make, and in cases
presenting a close call as to the reasonableness of harm specifically found
by the Board, would assist reviewing courts in determining its adherence
to the statutory standard”). This includes specific findings of fact that are
not merely a recitation of the testimony, see Douglas Auto & Equip. v. Indus.
Comm’n of Ariz., 202 Ariz. 345, 347, ¶ 9 (2002) (“The findings must be
specific, not only to encourage [the factfinder] to consider [its] conclusions
carefully, but also to permit meaningful judicial review.”), with material
factual conflicts resolved, and in a manner that supports the conclusion, see
Shelby Sch. v. Ariz. State Bd. of Educ., 192 Ariz. 156, 163, ¶ 21 (App. 1998)
(“[T]he reviewing court must be able to discern how the agency reached its
conclusion.”).

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1986). Under this premise, the ALJ concluded that “[t]he Board did not
establish by clear and convincing evidence that Dr. Ruben violated the
standard of care approved by a respectable minority of allopathic
physicians in his treatment of” the eight patients.

¶34 The Board rejected ALJ’s Conclusion 10, and the subsequent
conclusions that found Dr. Ruben did not violate the standard of care
approved by a respectable minority. The Board’s Conclusion 10 reads:

Dr. Peairs testified that “you can say someone has subjective
pain without a pain generator. However, it is the objective
identifiable cause that you are treating with opioids.” She
further testified that it is below the standard of care of any
respectable minority of any pain treating physicians in the
state of Arizona to prescribe opioids when they cannot locate
an objective pain generator such as an abnormal x-ray. Dr.
Ashby testified that he is not aware of any physicians who
believe you can use opioids even if you cannot find an
objective cause of the pain, such as an abnormal x-ray or other
objective test. Dr. Ashby also testified that “the pain generator
is a pathologic condition that should explain the pain
involved. And so the problem I saw in general with these
patients is that many times they would have a minor x-ray
abnormality that might explain some minor pain, but it would
not explain pain needed to treat with high-dose opiates.”

¶35 Dr. Ruben contends that the Board did not replace the ALJ’s
standard of care because the Board’s Conclusion 10 was not a conclusion of
law at all, it was “merely a recitation of certain opinion testimony from the
State’s experts.” We agree with Dr. Ruben that the Board failed to properly
articulate the standard in the Board’s Decision. However, a professional
board may rely on its own expertise for the standard of care it applies in
adjudicating an allegation, so long as the licensee received notice of the
standard of care that board has chosen to apply. Gaveck, 222 Ariz. at 438,
¶ 20 (citing Webb, 202 Ariz. at 560, ¶ 20; Croft v. Ariz. State Bd. of Dental
Exam’rs, 157 Ariz. 203, 209 (App. 1988)).

¶36 The Board’s conclusions were taken verbatim from its
complaint, where it set forth the standard for each charge against Dr. Ruben
as established by its experts’ reports. Although not clearly stated in the
Decision, the record supports the conclusion that the Board’s view on the
appropriate standard of care remained as it was in the complaint and
requires a doctor to perform an adequate patient workup to identify an

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objective pain generator that justifies treatment with opioids before
prescribing opioids to the patient. In considering whether a pain generator
warrants opioid treatment, the doctor is to consider the risks associated
with opioid treatment, including: dependency, overdose, death, diversion,
and interactions with other medications. Additionally, because of the
substantial risks that accompany opioid treatment, the doctor must closely
monitor and address “red-flag” and “drug-seeking” behaviors such as: a
controlled substances report (CSPMP) that indicates a patient visits
multiple pharmacies or physicians for prescriptions; patient reports of lost
or stolen medication; a urine test that indicates either or both, a positive
result for a medication that the patient is not prescribed or a negative result
for the medication that the patient is prescribed; early refill requests; and
hospitalizations for—or other indications of—substance abuse or mental
health issues.

¶37 Accordingly, the Board did establish a standard of care to
base its conclusions on, and that standard was provided to Dr. Ruben
through the complaint and in the Board’s experts’ reports. Here, the Board
indicated that it had reviewed the record, including the expert testimony,
and rejected the notion that a respectable minority of physicians would
believe the potential benefits of Dr. Ruben’s treatment reasonably
outweighed the risks. In the Board meeting, a Board member stated:

You know, our foremost obligation here is to protect the
public. There's a lot of discussion about -- in the ALJ's
proposed order about substantial minority views about
prescribing. But we have a responsibility to look at what is a
substantial minority view versus what is a fringe view and
quackery, frankly. It is not a minority view or any credible
medical view that patients be prescribed continued doses of
opioids without adequate workup, without adequate
documentation of consent, without adequate monitoring, and
the list goes on and on.

The Board adopted the standard set forth by its own experts and
concluded—as summarized by the superior court—that “it is below the
standard of care of any respectable minority of any pain treating physicians
in Arizona to prescribe opioids under the conditions that Ruben prescribed
them.” (Emphasis added.) While it may have been preferable for the Board
to state the standard, the way Dr. Ruben deviated from the standard, and
how the deviation was unreasonably unsafe as required by A.R.S.
§ 32-1401(27)(r), we nonetheless find that substantial evidence supports
findings of unprofessional conduct.

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Decision of the Court

¶38 There is evidence supporting the Board’s finding for each
patient. Dr. Ruben prescribed high-doses of Oxycodone—and usually in
combination with a benzodiazepine—without an adequate justification to
warrant the risk involved to GM, MB, AT, and ME. Opioids are “very
powerful” drugs with dangerous side effects including addiction.
Prescribing opioids—such as Oxycodone—in high doses, above 80 mg per
day, exponentially increases the risk of accidental overdose death.
Additionally, benzodiazepines, including Valium and Xanax, are central
nervous system depressants. A strong justification is needed to prescribe a
benzodiazepine along with an opioid, because the combination also
increases a patient’s risk of death.

¶39 Dr. Ruben does not deny prescribing Oxycodone in fatal
quantities, up to three hundred 30 mg tablets a month along with Xanex, to
GM, a patient who had been hospitalized several times for depression and
attempted suicide while under his care. The record also indicates that
Dr. Ruben doubled MB’s Oxycodone dose without a substantial increase in
the patient’s reported pain level or any other justification to warrant such
an increase. Dr. Ruben prescribed a high dose of an opioid to AT, who
Dr. Ruben knew was a bus driver and had congestive heart failure.
Dr. Ruben’s treatment of AT not only posed an unreasonable risk to AT, but
also to the motoring public. ME was taking oxygen for chronic obstructive
pulmonary disease, she had low oxygen in her blood and was oxygen
dependent. Dr. Ruben prescribed Valium along with Oxycodone. Dr. Peairs
testified that such a combination created an unreasonable risk of harm for
ME because it perpetuated her oxygen dependence and placed her at risk
of death.

¶40 Dr. Ashby testified that one 30 mg tablet of Oxycodone has a
street value of approximately $20–25, and the risk of diversion is high.
Dr. Ruben failed to adequately address red-flag behaviors indicating
possible diversion with PG and FS. Dr. Ruben prescribed PG Oxycodone in
large quantities, provided early refills, and provided refills in instances of
stolen medication. Dr. Ruben was also aware of allegations PG shared her
medication with others and that she was accused of selling her medication.
Dr. Ruben obtained a CSPMP for FS at the initial visit. Despite the report
showing that FS had obtained 959 Oxycodone 30 mg tablets in the previous
three months, Dr. Ruben prescribed Oxycodone for FS. And Dr. Ruben
prescribed escalating doses of Oxycodone for FS despite a report of stolen
medication and an incident with an altered prescription.

¶41 Dr. Ruben failed to adequately monitor CD and DB who
exhibited red-flag behaviors for substance abuse. The urine test from CD’s

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initial visit with Dr. Ruben was positive for marijuana and
benzodiazepines, which had not been prescribed, and CD repeatedly
requested early refills after taking more Oxycodone than prescribed. A
CSPMP shows that CD filled Dr. Ruben’s prescriptions at three different
pharmacies. Finally, DB received a prescription for Oxycodone from
Dr. Ruben despite red-flag behaviors such as reporting that he took
Oxycodone that was not prescribed and testing positive for methadone and
marijuana. Dr. Ruben continued to prescribe Oxycodone to DB even after a
urine test that was positive for benzodiazepines without explanation from
the CSPMP or evidence from Dr. Ruben’s notes that he noted the red-flag
behavior and had a medical justification to disregard the illicit drug use.

¶42 With each patient, the facts support the conclusion that
Dr. Ruben created an unreasonable risk of harm by prescribing opioids and
other medications to high-risk patients without adequately assessing the
risk such treatment posed to the patient and the public. The disregard for
patient and public safety supports the Board’s conclusion that Dr. Ruben’s
conduct was unprofessional and in violation of the standard of care.

ATTORNEY’S FEES

¶43 Dr. Ruben requested attorney’s fees pursuant to A.R.S.
§§ 12-348 and -349. Because he is not the prevailing party, we decline to
award attorney’s fees.

CONCLUSION

¶44 For the foregoing reasons, the Board’s Decision is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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