Judge James C. Chalfant, Case 21STCP04159 2022-12-08 Tentative Ruling

Petitioner Avie Herskowitz, M.D. (“Herskowitz”) seeks a writ of mandamus directing Respondent Medical Board of California (“Board”) to set aside its decision to place him on probation.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Herskowitz commenced this proceeding on December 22, 2021, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.

On January 14, 2020, the Board filed an Accusation against Herskowitz. The Board amended the Accusation on May 20, 2020, and a second time at the administrative hearing in September 2021. Herskowitz was accused of committing professional negligence and failing to maintain accurate records in the treatment of two patients.

The administrative hearing was held on September 13, 17, and 20-21, 2021 and submitted for a decision on September 21, 2021. The Administrative Law Judge (“ALJ”) found that the Board established cause for discipline and recommended revocation of his license with a stay and five years of probation. The Board adopted the ALJ’s recommendation.

Petitioner Herskowitz seeks (1) a writ of mandate directing the Board to set aside its decision to place him on probation and (2) attorney’s fees and costs.

On December 23, 2021, Herskowitz served the Board with the Petition and Summons by substitute service, effective January 2, 2022.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514 15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013 16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150 51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514 15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

Under the Medical Practices Act, Bus. & Prof. Code[3] section 2000 et seq., the Board shall take action against any licensee who is charged with unprofessional conduct. “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 negligent 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....” §2234.

The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct. §2266.

Herskowitz graduated from medical school in 1977 and served an anatomic physiology residency at the Albert Einstein Hospital and an internal medicine residency at the Yale School of Medicine. AR 789, 2230-31. He performed a cardiology fellowship at the Johns Hopkins Hospital from 1983 to 1986 before joining its active staff. AR 789, 2232-33. He was an Assistant Professor of Cardiology at Johns Hopkins Hospital from 1987 to 1995. AR 788, 2236.

Herskowitz received his Physician’s and Surgeon’s Certificate in California on June 5, 1998. AR 262. He was a Clinical Professor of Cardiology at the University of California, San Francisco (“UCSF”) from 1999 to 2014. AR 788, 2240.

In 2010, Herskowitz founded his own clinic, Anatara Medicine (“Anatara”), which practices holistic or integrative medicine. AR 787, 2242-43. In 2013, he founded a San Francisco Stem Cell Treatment Center. AR 787. He has not been affiliated with a hospital since he left UCSF in 2014. See AR 787.

Herskowitz is board-certified in internal medicine and anatomic pathology. AR 789. Since 2018, he has been the president of the American College for Advancement in Medicine (“ACAM”), a non-profit organization dedicated to educating physicians on the safe and effective application of integrative medicine. AR 787, 2243-44.

On August 4, 2015, a 71-year-old male patient (“Patient 1”) was seen at Anatara complaining of neck and head pain. AR 1026, 1028-29, 2139.

Naturopathic Doctor[5] Carine Bonnist (“Bonnist”) examined Patient 1 and prepared a written report of the results. AR 1026-28. She wrote that he was alert and oriented to person, time, and place (“A&Ox3”). AR 1028. He was also well-nourished and well-developed (“WNWD”). AR 1028. He seemed uncomfortable and in pain but not distressed. AR 1028. She noted that Patient 1 had disc herniation between the C4-5 and C5-6 vertebrae and cervical spondylosis from trauma suffered in 1988. AR 1028. He had undergone various treatments since 1990 and came to Anatara to explore joint injections and stem cell therapy. AR 1028.

Patient 1 signed a generalized Informed Consent and Request for Care Form (“Consent Form”) that outlined his rights at Anatara, the scope of evaluation and treatment, and potential benefits and risks. AR 1031-32. One potential treatment was: “Trigger point injection therapy with vitamin substances.” AR 1031. Potential benefits were restoration of body functioning, relief of pain, assistance with injury and disease recovery, and prevention of disease or its progression. AR 1032. Potential risks included pain, discomfort, blistering, minor bruising, discoloration, burns, itching, loss of consciousness and deep tissue injury from needle injunctions. AR 1032.

Herskowitz gave Patient 1 a prolozone injection. AR 1052. His patient chart notes do not indicate whether he explained to Patient 1 what a prolozone injection is. AR 1052. His chart reflects that Patient 1 had pain in his temple, neck, shoulder, both arms, and lower back. AR 1052.

The next morning, Patient 1 reported that the injection made him feel better until 10:30 p.m. that night. AR 1053. At that time, he felt soreness at the injection site. AR 1053. He continued to feel soreness through morning, but he expected as much because he had that experience with past injections. AR 1053. His temple pain also had improved. AR 1053.

Herskowitz gave Patient 1 additional prolozone injections on August 12 and 19, 2015. AR 1054-55. His patient chart notes do not indicate that anyone examined Patient 1 or explained the treatment on either visit. AR 1054-55.

On April 13, 2017, Patient 2 came to Anatara. AR 1100, 2139. He was 36 years old, and his doctor William Mora, M.D. (“Mora”), had diagnosed him with late Lyme disease. AR 1332. He experienced the following complaints: severe muscle weakness; extreme fatigue; weak left ankle and foot; extreme heat sensation, entire body; extreme electrical nerve sensation, buzzing, and pulsation throughout his entire body; and body alignment issues. AR 1101. His condition was chronic. AR 1100. His system review form also reflects a variety of past and present conditions in all systems. AR 1105-08. His clinical record showed that he had diabetes that he controlled mainly with diet. AR 1332. He had been prescribed current medications of hydroxychloroquine, doxycycline, and testosterone gel. AR 1098. He said that these medications stabilized his health and he stopped taking them after ten months. AR 1339.

Naturopathic Doctor Devin Wilson (“Wilson”) examined Patient 2 for his initial visit on April 13, 2017. AR 1133. For the physical examination, Wilson wrote that (1) Patient 2 had normal speech and behavior and was A&Ox3 and WNWD; (2) eyes were “PERRLA” (pupils equally round and reacting to light interiorly), and “EOM Intact” (EOM means extraocular movements); and (3) the CN2-12 neurons were grossly intact. AR 1135, See 1341.

Anatara recommended multiple labs tests and asked Patient 2 to check with his primary care physician at Kaiser about which labs Kaiser would be unwilling to complete. AR 1132, 1137. Patient 2’s consultation form does not show that Anatara conducted any additional examinations or tests, including an electrocardiogram (“EKG”). AR 1132-37. It also does not discuss any treatment to address his Lyme disease or the many conditions that he reported. AR 1132. The consultation form notes that Patient 2 may need to use a Hermann machine – a devices that extracts blood and adds ozone before it pumps the blood back in his body – and that Carmen will discuss whether he can get a 20% discount. AR 123, 1132.

Anatara’s consultation form also does not say whether doctors discussed the Hermann treatment’s risks and benefits with Patient 2. AR 1132. Patient 2 signed a Consent Form similar to that signed by Patient 1 with general explanations of rights, treatments, benefits and risks. AR 1117. He also signed an Advanced Beneficiary Notice of Noncoverage warning him that insurance rarely reimbursed for Anatara’s treatments because they were non-standard. AR 1115-16.

Patient 2 began the intravenous ozone therapy during his April 13, 2017 visit. AR 1140. The next day, Anatara emailed him a treatment plan and the cost in which the number of passes increased on each occasion of treatment. AR 1141.

Patient 2 continued the treatment during visits on April 24 and 27 and May 1 and 5, 2017. AR 1142, 1145-47. During his April 24 visit, Patient 2 reported fatigue from his last treatment. AR 1142. He felt lightheaded during his treatment on May 1. AR 1146. The records do not indicate any examination during these visits. AR 1142, 1145-47.

On May 17, 2017 at 3:00 p.m., during another round of Hermann ozonation, Patient 2 needed oxygen, CPR, epinephrine, and defibrillation. AR 1149. The nurse who administered the treatment reported that, after a bulb on the machine was changed, they realized the tube was switched to reverse the flow of blood. AR 1150-51. This caused Patient 2 to complain about shoulder pain before he went into cardiac arrest, which caused the nurse to bring in Herskowitz to resuscitate him. AR 1151. At 3:11 p.m., EMTs arrived and took charge of the resuscitation. AR 1154-55. They transferred him to the ER unit of “CPMC.” AR 1155.

On January 14, 2020, the Board filed the Accusation against Herskowitz. AR 236-42. The Board amended the Accusation on May 20, 2020 (“Amended Accusation”). AR 243-52.

For Patient 1, the Amended Accusation alleged that Herskowitz did not provide or document a physical examination of Patient 1’s cervical spine in his medical records. AR 247. Herskowitz also did not obtain Patient 1’s informed consent about the nature, risks, and alternatives to the prolozone treatment before its administration. AR 247. On August 31, 2015, Patient 1 visited a pain management physician who recommended that he receive stem cell therapy. AR 246-47. Herskowitz performed stem cell harvesting with collagenase. AR 247. Neither collagenase nor prolozone therapy are FDA-approved. AR 247.[6]

Herskowitz’s failure to perform a physical examination of the cervical spine before he recommended and provided ozone or prolozone therapy was a negligent act under section 2234(c). AR 247. The same is true of his failure to obtain informed consent regarding the nature, risks and alternatives of ozone or prolozone therapy. AR 247. He also violated section 2266 if he did the perform a physical examination or have an informed consent discussion but did not document them. AR 247-48.

For Patient 2, the Amended Accusation alleged that Herskowitz did not obtain a complete clinical history, exposure history, assessment and evaluation of symptoms and serologic/laboratory testing for Patient 2 before he diagnosed and treated him for Lyme disease or tick-borne recurrent fever. AR 248. Herskowitz also did not follow the Centers for Disease Control and Prevention’s (“CDC”) two-step process for Lyme disease diagnosis. AR 251. He did not perform, or document, a physical examination or EKG to identify other complications from the Lyme disease. AR 251. He further did not obtain informed consent about the nature, risks, and alternatives to the ozone therapy treatment using the Hermann machine during any of Patient 2’s visits. AR 251. Finally, he did not keep adequate and accurate procedure notes for any visit. AR 249-50. Herskowitz’s actions for Patient 2 provide basis for discipline as gross negligence under section 2234(b), repeated negligent acts under 2234(c), and inadequate records under section 2266. AR 251.

Based on these allegations, the Board sought to revoke or suspend Herskowitz’s Physician's and Surgeon's Certificate. AR 252.

On June 23, 2020, before the hearing on the Amended Accusation, Bonnist submitted a declaration about her care of Patient 1. AR 68-69. Her declaration stated in pertinent part that, during Patient 1’s first visit to Anatara, Bonnist followed the normal procedure at Herskowitz’s office. AR 69. This procedure involves taking vitals, completing a thorough history, and conducting a physical exam. AR 69. This intake usually took about one hour. AR 69. She then escorts the patient to Herskowitz to discuss information obtained from the intake. AR 69. Bonnist would leave after she signed the intake form, and Herskowitz would continue the discussion regarding the patient history, current complaint, and eventually a diagnosis and recommendations. AR 70.

Although she did not remember Patient 1’s visit, her notes indicate that she followed the usual office procedure and that she spent an hour with Patient 1. Bonnist denied the allegation that Anatara did not conduct a physical examination of Patient 1; they always examined every patient. AR 70.

Bonnist left Anatara in 2016 and joined the Shalva Clinic in Connecticut as a Naturopathic Physician from 2017 to 2019. AR 69. She is now a Naturopathic Physician at the New Beauty and Wellness Clinic in Westport, Connecticut. AR 69.

The ALJ heard the Amended Accusation on multiple days in September 2021. Pertinent testimony is as follows.

Dinesh Sharma, M.D. (“Sharma”) testified that he has been a licensed physician in California since 1984. AR 1418. He has never been subject to discipline. AR 1418. He treats patients with neck pain on a daily basis, which is the second most common diagnosis he sees after back pain. AR 1431.

The typical physical examination for neck pain, back pain, or joint pain begins with visualization of the area the doctor is examining. AR 1431-32. The doctor then palpates the affected joint or area on the torso or neck to identify where the pain is. AR 1432. The doctor conducts a range of motion test to see if the patient suffers any limitations in range of motion. AR 1432. At the same time, the doctor will use provocative maneuvers to identify pinched nerves. AR 1432-33. Through neurological, sensory, and motor examinations, the doctor checks sensation in the lower and upper extremities as well as reflexes. AR 1433. The last part of the physical examination is a vascular examination of the affected area to determine the pulse in lower extremities and if the patient has any peripheral vascular disease. AR 1432-33.

Herskowitz’s August 4, 2015 note for Patient 1 reflects only treatment and do not show that Anatara performed any physical examination. AR 1447. Although his note refers to Bonnist’s August 4 note for additional information, her note suggests that she did only a brief examination. AR 1447-48. The note’s line under “Assessment, Plan:” starts with O, which signifies a physical examination. AR 1448-49. Her examination does not meet the standard of care because the note does not show that Bonnist examined the cervical spine. AR 1450-51. Her report does not even remotely suggest that she visually examined the neck, palpated it, conducted range of motion tests, conducted a neurological examination, or conducted a vascular examination. AR 1452-53.

Bonnist’s declaration that Anatara always physically examined patients did not change Sharma’s opinion that she did not adequately examine Patient 1. AR 1454-55.

Herskowitz’s note for Patient 1’s August 12 visit reflects the information Patient 1 reported to Herskowitz about his condition. AR 1456. There is no indication that Herskowitz conducted an examination on the August 12 visit or on the August 19 visit. AR 1457-58. The standard of care requires a physical examination of the cervical spine every time the patient comes back after treatment. AR 1458. The medical chart show that Herskowitz’s associate conducted a physical examination a month later. AR 1459.

Herskowitz’s failure to properly examine Patient 1 before performing three ozone injections in August 2015 does not meet the standard of care. AR 1461. Alternatively, the documentation of a patient’s history, the examination, and the treatment are vital components of the record. AR 1462. Proper documentation of the physical examination is important. AR 1461-62.

Herskowitz’s failure to obtain informed consent from Patient 1 for his specific treatment was a simple departure from the standard of care. AR 1465. A trigger point injection is an invasive treatment but the doctor can obtain an oral consent for that treatment. AR 1466. For larger treatments like an epidural, the doctor will provide a two-page form that indicates the treatment, body parts at issue, and risks for the patient to sign. AR 1466. But for any treatment or procedure, there must be a conversation. AR 1467. An oral informed consent must be documented. AR 1466-67.

Herskowitz’s notes from Patient 1’s visits on August 4, 12, and 19, 2015, do not reflect an informed consent conversation about the ozone injections. AR 1475-76. Herskowitz should have explained to Patient 1 that he was going to receive a trigger point injection with ozone, that it was alternative medicine, and of any alternative treatments. AR 1480-81. Patient 1 should have had the chance to ask questions at that time. AR 1480.

The Consent Form for Patient 1 is insufficient because it does not mention the ozone injections for trigger point areas. AR 1476-78. The phrase “including but not limited to” is a blanket disclaimer that does not explain what the procedure will be. AR 1477-78. The listed treatment of “trigger point injection therapy with vitamin substances” is insufficient because ozone is not a vitamin substance. AR 1479. The fact that Patient 1 signed the document is irrelevant because the document does not provide informed consent. AR 1480. It does not appear that Patient 1 was informed of what he was about to receive. AR 1480.

J.D. testified that she is the spouse of Patient 2. AR 1525-26. Patient 2 was bitten by a tick when he was six years old. AR 1555. He had a high fever at the time and lifelong symptoms that seemed related to Lyme’s disease. AR 1555. In 2015, Mora performed blood tests that confirmed Patient 2 had a chronic version. AR 1555.

On the day that Patient 2 went into cardiac arrest mid-treatment, Anatara staff told J.D. that Herskowitz took Patient 2 to the emergency room. AR 1555.

Patient 2 testified that he first saw Mora in May 2016. AR 1579. While Mora waited for lab test results to see if Patient 2 had Lyme disease, he prescribed doxycycline and hydrochloroquine for six weeks. AR 1578. Patient 2 felt better and was able to walk more after taking the antibiotics, to the point where he returned to teaching improv. AR 1578.

When Patient 2 revisited him, Mora explained that the blood test came back positive for relapsing fever, something that is not common in the United States but is in Japan. AR 1579. Mora recommended that Patient 2 continue taking the antibiotics for at least a year and continue for a second year if his symptoms were bad. AR 1579. Mora planned to retest Patient 2 every six months for Lyme disease markers, but Patient 2 could determine for himself when to stop taking the antibiotics. AR 1579.

Patient 2 continued to see Mora through the end of 2016. AR 1579. On the second visit, he asked about ozone therapy after he read an article stating that celebrities used it to help recover from and live with Lyme disease. AR 1581. Mora explained that the treatment puts the patient’s body in a box in which ozone steam is misted and the body absorbs it through skin pores. AR 1581. Mora had never worked with a patient who underwent that treatment, so he could not recommend it. AR 1581-82. He did not discuss any other form of ozone treatment like injections. AR 1582.

Patient 2 moved to Oakland. AR 1643. He could not continue to see Mora in Sacramento, and Mora would not prescribe antibiotics unless Patient 2 saw him in person. AR 1643. Patient 2 stopped taking the antibiotics because he could not make the trip. AR 1643.

Ten weeks after stopping the antibiotics, Patient 2 began feeling muscle weakness and fatigue. AR 1643. Patient 2 searched for ozone treatment online and found Anatara. AR 1583. Patient 2 called Anatara and set up an appointment. AR 1583. Antara did not describe the ozone treatment over the phone when he set up the appointment. AR 1583.

George Melikian (“Melikian”) testified that he has been a licensed physician since 2009 and has not been disciplined. AR 1684-85.

Relapsing fever is a broader umbrella for tick-borne illnesses other than Lyme disease that present similar symptoms. AR 1696. Lyme disease and relapsing fever have similar symptoms, but relapsing fever does not result in the same secondary complications like heart blocks. AR 1697. Melikian is familiar with the use of anti-inflammatory drugs to treat Lyme disease, although he does not prescribe them himself. AR 1696.

For a patient with Patient 2’s complaints, the doctor should (a) conduct a musculoskeletal examination, (b) conduct a neurological examination, including testing motor strength, (c) review his lab work, and (d) obtain a detailed patient history from the patient with focus on mumps, measles, and rheumatic fever. AR 1708-09, 1734. The doctor should also evaluate the weaknesses reported by the patient, which for Patient 2 was body alignment weakness and burning sensations in lower extremities. AR 1713. Mora conducted a proper physical examination. AR 1744.

Herskowitz’s notes do not reflect any physical examination. AR 1709-10. Wilson’s notes for physical examination (AR 1135) show a cursory examination. Wilson wrote: “General: Normal speech, normal behavior, A/Ox3 (which means alert and oriented times three to person, place, and time). AR 1710. He also wrote: “WNWD (well-nourished, well-dressed) and “NAD” (no apparent distress). AR 1711. For eye exam, Wilson wrote “PERLA” (pupils are equally round, reactive to light interiorly). That means shining a light in the patient’s eyes and checking to see if the patient could follow your finger to make sure that they track movement to all four quadrants of the visual field. AR 1711. Finally, Wilson wrote under Neuro that cranial nerves 2 to 12 were grossly intact. AR 1711. “Grossly intact” means there was no specific examination, but Wilson made general observations that did not reveal a gap in the cranial nerves. AR 1711.

In Melikian’s opinion, Wilson’s physical examination was insufficient for someone with Patient 2’s symptoms. AR 1713, 1716. The neurological examination should have been comprehensive by evaluating the lower extremity weaknesses and burning sensations that Patient 2 reported. AR 1713. There should have been a heart and lung examination with a stethoscope. AR 1713. There was no documentation that any of this was done. AR 1713.

Herskowitz was required to, and did not perform, a comprehensive appropriate evaluation, including full physical exam, on April 13, 2017 prior to administering an invasive procedure with a Hermann machine. AR 1734, 1745. In this regard, Herskowitz could not rely on Wilson’s physical examination. AR 1713-14. The standard of care is for the physician to perform his or her own examination. AR 1714. The purpose of the physical examination is not only to find out what is wrong with the patient, it also is to set a baseline. AR 1714. Even when doctors receive patients from other specialists, the physical is repeated. AR 1714. Melikian always does this even if his nurse practitioner or physician’s assistant has performed the examination; they are repeated by him personally. This is especially true for an initial consultation. AR 1798. Herskowitz should not have relied on Wilson’s examination results. AR 1713-14.

The standard of care for a patient with Patient 2’s symptoms includes an EKG to check for heart block. AR 1734. An EKG can diagnose a heart block -- a prolongation of a specific current that runs across the heart -- that is specific to Lyme disease. AR 1697. Herskowitz’s diagnosis of relapsing fever without an EKG was an extreme departure from standard practice. AR 1733, 1744-46.

At a minimum, informed consent should include a discussion of the risks and benefits of the procedure and any alternatives. AR 1746. The patient must have sufficient time to ask all questions the patient considers appropriate so that the doctor and the patient are on the same page as to the decision. AR 1747. The medical records from April 13, 2017, which includes Wilson’s report, do not reflect that this conversation occurred. AR 1747-48. The Consent Form signed by Patient 2 at his home three days before his April 13, 2017 visit is insufficient because nobody discussed it with him before he signed it. AR 1748-50.

Although Patient 2 signed the same form during his office visit on April 13, 2017, the long list of treatments is broad and does not specifically discuss his treatment and the alternatives. AR 1750. The procedure was invasive because it accessed the vascular system and therefore had an increased risk of infection, bleeding, and emboli. AR 1751. The Consent Form lists non-specific and more minor risks for all the procedures, and nothing about trigger point injections with ozone or the Hermann machine involving blood-infused ozonation. AR 1751-52. The Consent Form talks about pain and discomfort but does not discuss where and from what. AR 1753. The Consent Form did not meet the standard of care. AR 1753.

Allan Sosin, M.D. (“Sosin”), testified that he has been continuously licensed as a physician since 1995. AR 1807-08. His practice focuses on treatment without the use of drugs or surgery because of the problems that can occur as a result. AR 1807.

Prolotherapy is an injection of liquid prolozone, which has sugar water, dextrose, procaine, vitamins, minerals, and sodium bicarbonate. AR 2028. Ozone is a gas that doctors often inject after the prolozone. AR 2028. Whether given intravenously or by injection, ozone has few side effects other than the a few days of pain and the risk of bleeding at the injection site. AR 1915. There is no added risk to the use of prolozone as compared to ozone, whether by injection or intravenously. AR 2028.

Major auto hemotransfusion (“MAH”) is a form of intravenous ozone therapy. AR 1894. The machine withdraws about 200 cc’s of blood from the patient into a sterile container, mixes it with ozone, and then reinfuses it. AR 2050. There are other ways to administer ozone as well. AR 2050.

Traditional medicines do not have much to offer to those persons with chronic Lyme disease beyond anti-depressants, pain medications, and sedatives not specific to any diagnosis. AR 1911-12. Alternative or holistic approaches are intended to help patients for whom traditional treatment is ineffective. AR 1912. Chronic Lyme disease does not respond to antibiotics and is such a disease for which an alternative approach can be effective. AR 1912.

A lot of physicians have nurses or physician’s assistants to perform a general examination before the physician examines where the problem exists. AR 1932-33, 1945. If Bonnist performed Patient 1’s general examination, Herskowitz did not need to repeat it. AR 1932. The same is true for Wilson’s examination of Patient 2. AR 1944-45. Moreover, it is necessary to do a physical examination in order to place the needle correctly and Herskowitz would have examined the area he needed to do so. AR 1932-33.

Based on Patient 2’s age, problem, normal pulse, and lack of cardiological symptoms, an EKG was not necessary. AR 1946.

Informed consent requires the doctor to discuss the procedure and its benefits and risks with the patient. AR 1955. The signature form is for documentation purposes; the important thing is that the discussion occurs. AR 1955-56. A failure to have the discussion and have a patient confirm the informed consent in writing is simple negligence. AR 1956-57. Herskowitz’s failure to document a discussion with Patient 1 was simple negligence. AR 1957.

A patient with Patient 2’s symptoms -- severe muscle weakness with fatigue, weak left ankle and foot, extreme heat sensation, extreme electrical nuerosensation, buzzing and polation of the entire body, and body alignment issues -- would require a pretty thorough orthopedic and neurologic exam to find areas of tenderness, range of motion, and lumps. AR 1988-89. The orthopedic examination would include muscular and skeletal range of motion. AR 1989, The neurological tests would include tests for strength, reflexes, sensation, gait, and cranial nerves. AR 1989. For the cranial nerves, the physician should test for facial muscle movements, movements of the jaw, whether the eyes move symmetrically. AR 1989.

Wilson’s examination as reflected in his note was appropriate but incomplete. AR 1998-99.

Stephen Bock, M.D. (“Bock”) testified that Prolozone combines ozone with nutritional products that help with healing. AR 2141.

Patient 2 had Lyme disease, which can affect the heart, but no cardiac complaints or indications that he needed an EKG. AR 2172. Bock would not run an EKG for a patient who is not complaining about chest pain or a shortness of breath. AR 2172. Patient 2 also was not using any drugs like Zithromax or Levaquin or any antimalarials that can affect the QT (the interval between waves in a heartbeat) -- a prolonged QT can predispose a person to heart rhythm problems). AR 2172-73.

Herskowitz testified that ozone enters the body through the bloodstream or other methods and binds to lipids. AR 2250. The first three seconds of intravenous ozone therapy involve a prooxidant effect that splits blood oxygen into a negatively charged oxygen ion, especially when the patient is depleted in antioxidants due to fighting inflammation. AR 2250. This may lead to some transient fatigue, which is the most common side effect. AR 2250-51. The average patient with a chronic illness can develop fatigue for minutes or hours after the treatment, but usually feels fine in the morning. AR 2251. In a rare case, the fatigue will persist for a few days, but it does not result in permanent injury. AR 2251. As with any injection method, bleeding, hematoma, and bruising are also concerns. AR 2362-63.

A good faith examination would have been a focused examination plus review of the full medical history and examination summary from Bonnist. AR 2351. He has personally observed Bonnist and Wilson perform physical examinations in the past. AR 2351.

The night before a patient’s visit, Herskowitz will meet with his two naturopaths – he now also has a medical doctor -- to review the patient’s medical history. AR 2352. They figure out what the best plan of action would be for taking their history and physical examination taking. AR 2352. He assumes that the naturopaths will perform a complete examination. AR 2352. He discusses with them that they will confirm what the last physician did, validate that the patient is on that level, and then focus on the exam on the body parts at issue. AR 2352-53.

After the naturopaths conduct the examination the next day, Herskowitz reviews the updated information. AR 2352. He can ask the naturopaths questions and relies on their information to determine if the patient needs additional examination. AR 2353.

Patient 1 came for pain relief because his past treatments were only somewhat effective. AR 2361. They also involved a lot of opiates, and he wanted to stop. AR 2361. When he first visited on August 4, 2015, he had mild anxiety, was soft spoken, and a mood affected from constant pain for so many years. AR 2363. He was interested in both injections as a short-term solution and stem cell therapy as a long-term solution. AR 2364.

Patient 1’s medical history showed that he was complaining of multiple sites of discomfort in his temple and between his eyes, his shoulders, upper back, and lower back. AR 2367. The notes three weeks earlier from his doctor, Panjabi, said that Patient 1 was losing muscle mass because the nerve conduction had decreased and was insufficient to maintain strength and muscle mass in both his arms. AR 2366-67. Because Panjabi reported decreased range of motion in the neck and atrophy and weakness in both arms, the focus after the initial examination was on a neurological exam for the head and neck. AR 2353, 2366. Herskowitz would have told Bonnist to focus on the pain and atrophy in those areas. AR 2367-68.

Bonnist’s notes reflect that she examined Patient 1 for 60 minutes. AR 2377. He recalled that Bonnist confirmed Patient 1’s muscle weakness based on whether she could slip her fingers free from his grip. AR 2368. Bonnist told Herskowitz that Patient 1 complained of multiple areas of pain in his temple and between his eyes. AR 2365. He also had pain in his neck, back, and shoulder. AR 2365.

Herskowitz met with Patient 1 for 30 minutes before he recommended treatment. AR 2377. Patient 1 revealed that a year before that visit, Panjabi performed an ablation procedure (destruction of tissue) on him. AR 2381. Herskowitz thanked Patient 1 for the thoroughness of his notes. AR 2369. After learning that Patient 1’s goals were to be on less pain medication, he would have spent the visit validating Patient 1’s multiple sites of pain and discussing options. AR 2369. Herskowitz would have explained that, even if Patient 1 wanted stem cell therapy in the long term, local injections would help his short-term pain and disrupt the inflammation in painful areas. AR 2369. Those injections would not resolve the underlying problem, but pain reduction was expected. AR 2369.

Patient 1 had chronic regional pain syndrome associated with “up-regulated” (higher) pain sensitivity throughout the body in patients who have long histories of pain. AR 2387. This matched Panjabi’s examination results. AR 2387.

Herskowitz would have explained the decision to use ozone along with other components of the prolo therapy solution. AR 2370. He would have explained his experience with hundreds of patients who underwent the injections without significant side effects. AR 2373. Herskowitz would have admitted that there was a chance of soreness due to Patient 1’s complex regional pain syndrome, but that the risk of bleeding was low. AR 2373.

He told Patient 1 that the alternative was to go straight to stem cell therapy. AR 2373. The subcutaneous injections Herskowitz recommended for Patient 1 get the ozone under the skin but not into the veins. AR 2270. About half an inch of the needle remains exposed during injection. AR 2270. Going deeper does not have added benefits. AR 2270.

The day after the first injection, Patient 1 stated that he felt better and that his temple pain had went away. AR 2385. He felt sore at the injection site, which was normal for him, and so took some Vicodin. AR 2385. The results of the injections diminished over time, but Patient 1 has improved without complications. AR 2400.

Herskowitz denied that he failed to either perform a physical examination of Patient 1’s cervical spine or to obtain his informed consent. AR 2396.

Herskowitz did not examine Patient 2 and would have relied on Wilson’s history and physical. AR 2351. The general concept was that Patient 2 had suffered from febrile illness since he was six years old. AR 2406. He began seeing Mora in May 2016, who diagnosed him with relapsing fever. AR 2406. Mora put him on a regimen of antibiotics and hydroxychloroquine that lasted about ten months. AR 2406. Although Patient 2’s condition improved, he refused to get additional blood work done because of how expensive it would be. AR 2406-07. Thus, when Patient 2 came to Anatara, they had a diagnosis, treatment, and treatment response. AR 2407.

Wilson’s note shows that on April 13, 2017, he examined Patient 2 and took his medical history for 60 minutes. AR 2410. Herskowitz would have reviewed Wilson’s history for Patient 2. AR 2411. He then saw Patient 2 for 70 minutes and reviewed some additional history with him. AR 2410. Herskowitz asked Patient 2 about his goals. AR 2411. Patient 2 explained that he wanted to be more functional and overcome the weakness, fatigue, and pain syndrome that kept him from normally functioning with family and professionally. AR 2411-12. He complained of brain fog, and weakness, fatigue, and pain that would not allow him to function as he normally would like. AR 2412-13. The cognitive dysfunction that Patient 2 described is common for Lyme disease patients but not specific to that disease. AR 2412.

He and Mora both diagnosed Patient 1 with relapsing fever. AR 2413. Herskowitz reviewed Mora’s diagnosis with Patient 2 and told him that relapsing fever may indicate Lyme disease, but it is not specific to classical Lyme disease. AR 2413. This did not surprise Patient 2 because Mora reached the same conclusion. AR 2413. Herskowitz and Patient 2 discussed a differential diagnosis of other conditions that could lead to the same nonspecific severe symptoms, including other forms of Lyme disease. AR 2417-18. He mentioned hygenics tests for diagnostic purposes, but Patient 2 said he could not afford any and wanted to focus his entire resources on treatment rather than diagnosis. AR 2418. Herskowitz also considered mold bloods -- multiple molds that can result in Lyme-like organisms – but Patient 2 refused to do the $600-800 urine panel to test for it. AR 2418, 2427. Herskowitz also considered tests such as an adrenal stress index (“ASI”) and a $99 “23 and Me” genetic test. AR 2418-2419. The genetic test would allow Patient 2 to see if he had any gene abnormalities that forced his detoxification system not to work well, which would enable a more targeted approach with supplements. AR 2419.

In the end, Herskowitz accepted a diagnosis of a Lyme-like illness because Patient 2 had one. AR 2419. Ozone therapy is not for Lyme disease but it could help Patient 2 with inflammation and autoimmune disease independent of the diagnosis. AR 2419.

Patient 2 began treatment at his first visit. AR 2428. He received treatment twice a week and reported that he felt energized from it. AR 2428.

The nurse on duty for Patient 2’s final ozonation replaced the tubing partway through but forgot to put it through the same safety fail safe sensor. AR 2276. This is a mistake that training focuses on avoiding. AR 2276. She then hit the button that allows a patient to receive ozonated blood and not the button that extracts blood. This was a problem because there was no blood in the machine; it was just ozonated oxygen. AR 2276. This caused Patient 2 to receive pure air in the wrong direction. AR 2276.

Thomas Grogan, M.D. (“Grogan”), testified that he has been licensed as a physician since 1981. AR 2303. He usually does informed consents for surgical interventions. AR 2309. He never has patients sign consent forms for prolozone injections or injections of other steroids because it is not a surgical intervention. AR 2309.

The prolozone injections Patient 1 received in 2015 were generally helpful. AR 2307. Herskowitz’s choice of trigger point injections demonstrate that there must have been a physical examination to find the points. AR 2309.

On October 21, 2021, the ALJ issued a Proposed Decision on the Amended Accusation. AR 969-1003. The ALJ noted that the Complainant alleged that Herskowitz committed professional negligence and failed to maintain adequate and accurate medical records. AR 970. For both Patient 1 and Patient 2, he performed or obtained inadequate physical examinations, made inadequate disclosure of risks and benefits before securing patient consent to treatment, and kept inadequate records. AR 970.

Patient 1 had suffered chronic head, neck, shoulder, and back pain for more than 25 years since a work injury in 1988 and had a fusion of three vertebrae in late 1990. AR 972. He received treatment for his neck injury in the past and regularly saw pain management specialist Panjabi along with his primary physician. AR 972. Panjabi had ablated Patient 1’s nerves a year before Patient 1 visited Herskowitz. AR 972.

On August 4, 2015, Bonnist spent 60 minutes with Patient 1. AR 972. According to Herskowitz’s testimony, he had instructed her to perform complete physical examinations of new patients and he had observed her do so in the past. AR 973. Therefore, he assumed that Bonnist did so with Patient 1. AR 973.

According to Herskowitz’s note, Bonnist interviewed Patient 1 and prepared detailed notes regarding his neck injury and treatment history. AR 972. Neither Bonnist’s notes nor Herskowitz’s note includes any description of any examination of Patient 1’s cervical spine, range of motion, or pains with palpation. AR 973. They also do not indicate that Herskowitz used any tests to identify motor or sensory neurological deficits or check the vascular system in the head and neck. AR 973.

Herskowitz testified that Bonnist had observed muscle atrophy in Patient 1’s arms and poor grip strength because of permanent damage to nerves connecting his cervical spine to his arms and hands. AR 973. This is inconsistent with Bonnists’ notation that Patient 1 is well-developed, and her notation is the only note on the subject. AR 973-74.

Patient 1’s medical records show that he signed the two-page Consent Form on August 4, 2015, and Herskowitz credibly testified that the signing occurred after he spoke to Patient 1 about the injection therapy. AR 974. The Consent Form contains a long list of therapies and potential risks and benefits, but it does not attribute particular risks and benefits to particular treatments. AR 974. Nothing in Patient 1’s record shows that Herskowitz explained the risks and benefits of injection therapy compared to other treatment options on August 4, 2015 or during any subsequent visit. AR 975.

Herskowitz credibly testified that he recommended the injection therapy as a short-term pain relief measure and that they discussed other options to improve Patient 1’s long-term condition. AR 975-76. He explained that the injections might cause temporary soreness, bleeding, or bruising but not serious or permanent adverse effects. AR 975-76.

Sharma testified that the standard of care for a patient with neck pain includes a complete physical examination of the patient's cervical spine. AR 977. The doctor should look carefully at the patient's head, neck, and shoulders; palpate the area to identify painful or swollen areas; conduct neurological tests to identify altered motor function or sensation in the head, neck, shoulders, or arms; and examine range of motion and blood supply. AR 977. This testimony was credible and none of the other expert testimony contradicted it. AR 977.

Sosin, Bock, and Grogan testified that Bonnist examined Patient 1’s cervical spine, but Bonnist did not testify and the medical records do not support that conclusion. AR 977. All three doctors were credible when they opined that Herskowitz could not have identified where to administer injections without a physical examination of Patient 1’s spine to determine where to inject. AR 977. Nevertheless, Herskowitz did not record his observations from the examination. AR 977. Nor does it show that he personally performed any portion of the examination other than palpating the cervical spine and some adjacent muscles. AR 977.

Sharma opined that Herskowitz’s failure to conduct a complete physical examination of the cervical spine before offering Patient 1 the injections was a simple departure from the standard of care. AR 977. Sosin, Bock, and Grogan each testified that a complete examination by Bonnist followed by Herkowitz’s brief examination of the neck before injection would meet the standard of care. AR 977-78. The ALJ found their opinions irrelevant because the assumption that Bonnist performed a complete examination of Patient 1’s cervical spine is unfounded. AR 978.

As to informed consent, Sharma testified that Herskowitz had a professional responsibility to highlight any special risks Patient 1 faced from injection of prolozone instead of a corticosteroid. AR 979. The ALJ found the opinions of Sosin, Bock, and Grogan that there was no elevate risk more persuasive. AR 979.

Nevertheless, the standard of care required Herskowitz to discuss foreseeable risks and benefits from subcutaneous trigger point injections, secure Patient 1’s consent only after that discussion, and then document the consent. AR 979. Disclosable risks included (1) bruising or bleeding from the skin puncture and (2) transient pain in the tissue surrounding the injection site. AR 979. The expert witnesses all agreed that trigger point injections are low-risk and not so complex that a physician need provide extensive written information to ensure informed consent. AR 979-80.

Sharma and Sosin both testified that Herskowitz’s failure to document in Patient 1’s records that he discussed these risks and benefits was a simple departure from the standard of care. AR 980. The ALJ found their opinions more persuasive than the opinions of Bock and Grogan that the Consent Form provided sufficient disclosure of risks and benefits. AR 980.

Patient 2 visited Herskowitz for the first time in April 2017. He was 38 years old and believed that he had chronic Lyme disease. AR 980. He had read about ozone treatments online and found Herskowitz by an internet search. AR 980.

Patient 2’s medical history showed steadily declining health before he visited Herskowitz. AR 980. In April 2016, he went to a hospital emergency room because of extreme dizziness and weakness. AR 980. He had high blood glucose concentration consistent with diabetes and took medication to control it but later stopped. AR 980.

In May 2016, Mora diagnosed Patient 2 with “a form of late Lyme disease” based on Patient 2’s self-reported exposure and health history, a physical examination, and laboratory testing. AR 981. Mora prescribed doxycycline and hydroxychloroquine, which Patient 2 took for at least ten months. AR 981. Although Mora recommended that Patient 2 continue with these medications, Patient 2 stopped taking them sometime between his last appointment with Mora on March 20, 2017 and his first appointment with Herskowitz. AR 981.

Before Patient 2 visited Anatara, Herskowitz received his medical records from Mora and lab results from Kaiser Permanente. AR 981. He did not seek additional information from any other provider who recently treated Patient 2, and he never coordinated care with them. AR 981-982.

During Patient 2’s first visit on April 13, 2017, Wilson documented Mora’s diagnosis and treatment for Lyme disease. AR 982. Patient 2 reported that he used supplemental testosterone because of hypogonadism and he had hyperglycemia without diabetes. AR 982. He complained of a recent relapse, including fatigue, electrical shocks throughout his body, heat sensations, numbness, and tingling. AR 982.

Wilson documented a partial physical examination of Patient 2. AR 982. Wilson observed that Patient 2’s cranial nerves were grossly intact but did not document any neurological examination of Patient 2’s torso or extremities, abdomen or genitourinary system, heart, lungs, or circulation, or testing of Patient 2’s motor strength. AR 982.

Herskowitz’s notes show a conversation with Patient 2 and do not include a physical examination, separate diagnosis, or differential diagnostic plan. AR 982. These notes mention some testing the results of which Wilson or Herskowitz would discuss with Patient 2 another day, but this discussion never happened. AR 982.

Patient 2 signed the Consent Form both before and during his visit on April 13, 2017. AR 982-83. Herskowitz proposed to treat Patient 2 with intravenous ozone therapy in which blood is withdrawn from the body, mixed with ozone, and returned to the body. AR 983. He advised Patient 2 that there would be one or two therapy sessions per week over two months at a cost of several thousand dollars. AR 983. Herskowitz provided Patient 2 with literature and patient testimonials about intravenous ozone therapy, but the evidence did not show what medical information he gave Patient 2 about its potential benefits beyond the general literature information. AR 983-84. Patient 2 testified that he asked Herskowitz about risks and Herskowitz did not identify any. AR 983. The ALJ found Herskowitz’s testimony credible that he disclosed the risk of pain and bruising. AR 984.

Patient 2 had intravenous ozone therapy on April 13, 24, and 27, and May 1 and 5, 2017. AR 984. Herskowitz did not interact directly with Patient 2 during treatment; a nurse used a checklist to document each session. AR 984. The nurse’s failure, on May 17, 2017, to assemble the Hermann device properly when replacing a tube led to an air embolism and cardiac arrest. AR 984. Patient 2 spent ten days in the hospital and described his current day-to-day health as “challenging.” AR 984.

Melikian criticized Herskowitz for adopting Mora’s diagnosis, and Patient 2’s self-diagnosis, of chronic Lyme disease. AR 985. Meikian asserted that lab testing is important to determine whether a patient's health problems stem from infection by the organisms that cause Lyme disease or related organisms. AR 985. The lab results Mora were inconsistent with Lyme disease. AR 985.

Further, Lyme disease causes long-term health problems that outlast the active infection, and a doctor therefore should conduct a careful physical examination to distinguish long-term consequences of Lyme disease from other phenomena that might cause similarly poor health but require different therapy. AR 985-86. This examination should include a neurological examination, examination of the heart and lungs, and evaluation of motor strength and gait. AR 986. It should also include an EKG because secondary cardiac conduction abnormalities are a known complication. AR 986. He opined that Herskowitz’s reliance on Mora and Patient 2 for the chronic Lyme disease diagnosis was an extreme departure from the standard of care. AR 985.

Sosin also was skeptical about Mora’s diagnosis but testified that intravenous ozone therapy was a reasonable treatment choice regardless of the cause of Patient 2’s health complaints. AR 986.

Bock agreed with Sosin and testified that laboratory testing is not reliable in diagnosing Lyme disease. AR 986. A physician can meet the standard of care by diagnosing long-term Lyme disease consequences using just clinical and exposure history and a current physical examination without laboratory testing. AR 986-87. He further testified that neurological and cardiac evaluations are appropriate if a physician suspects long-term Lyme disease consequences. AR 987.

Bock testified that Herskowitz did not deviate from the standard of care for failure to obtain an EKG. AR 987. The ALJ did not find this persuasive because both premises of Bock’s conclusion were false. AR 987. Bock said that Patient 2 did not complain of heart-related symptoms, but he in fact complained of chronic fatigue. AR 987. Bock said that Patient 2 was not taking any medication that might cause heart rhythm abnormalities, but he was taking hydroxychloroquine for the previous ten months which Bock admitted has the potential to alter heart rhythm. AR 987.

Sosin also testified that Herskowitz did not deviate from the standard of care for failure to obtain an EKG. AR 987. Patient 2 had a normal heart rate, had no symptoms suggesting heart dysfunction, and was relatively young. AR 987. Sosin’s opinion failed to address the possibility that long-term consequences from Lyme disease and treatment with hydroxycholoroquine include heart rhythm abnormalities. AR 987-88. Therefore, his testimony was less persuasive than that of Melikian. AR 988.

Herskowitz testified that he did not diagnose Patient 2 with Lyme disease. Rather, he accepted Mora’s diagnosis but also gave careful consideration to other explanations. AR 988. The ALJ found this testimony not to be credible. She found it more reasonable that Herskowitz, like Sosin and Bock, considered intravenous ozone therapy appropriate for Patient 2 no matter what disease caused his poor health. AR 988. Herskowitz viewed Patient 2 as coming to him for treatment, not diagnosis, and considered himself responsible only for providing a safe treatment. AR 988. Therefore, the ALJ rejected Melikian’s opinion that Herskowitz misdiagnosed Patient 2 because he did not diagnose Patient 2 at all. AR 988.

However, the ALJ found Melikian’s opinions persuasive that (1) Herskowitz did not conduct or rely reasonably on Wilson to conduct a physical examination that was adequate to diagnose Patient 2’s illness or establish a baseline; (2) if Herskowitz suspected Lyme disease, he should have given special attention to a neurological examination and should have performed an EKG; (3) Herskowitz did not document any baseline or follow-up physical examination; and (4) Herskowitz did not review subsequent laboratory test results as planned. AR 989. Herskowitz decided to embark on an expensive course of intravenous ozone therapy without a clear understanding why Patient 2 was ill or how he (Herskowitz) would evaluate the therapy’s effectiveness, and this was an extreme departure from the standard of care. AR 989.

As to informed consent, all medical witnesses agreed that the standard of care required Herskowitz to discuss foreseeable risks and benefits from intravenous ozone therapy, secure consent only after that discussion, and document such consent. AR 989-90.

Melikian opined that the failure to warn Patient 2 of the risk of a fatal air embolism is a simple departure from the standard of care. AR 990. None of the articles he cited identify this as a risk specific to intravenous ozone therapy with the Hermann device. AR 990. Bock and Sosin opined that this was not a foreseeable risk, and their opinions were more persuasive. AR 990.

Bock, Sosin, and Herskowitz all testified that transient fatigue and possible hematoma at the venipuncture site are potential risks, and the benefits are “anti-inflammatory” and “anti-infective”. AR 991. Bock opined that the general information on the Consent Form memorializes the oral disclosures Herskowitz made to Patient 2, but the ALJ did not find this opinion to be persuasive. AR 991. More persuasive was Sosin’s opinion that Herskowitz’s failure to document any conversation about the benefits and risks was a simple departure from the standard of care. AR 991. Thus, the evidence did not show that Herskowitz failed to obtain Patient 2’s informed consent, but it did show that Herskowitz’s failure to document the informed consent violated the standard of care. AR 991.

As to Patient 1, the evidence established negligence for failure to perform a thorough examination of his cervical spine before recommending and providing prolozone injections. AR 993. These multiple acts of negligence are cause for discipline under section 2234(c)

The evidence did not establish negligence for failure to obtain informed consent for trigger point injections, but it did establish negligence under section 2266 for failure to document a thorough initial examination of Patient 1’s cervical spine or any follow-up focused examination, and for failing to document an informed consent discussed. AR 993. The inadequate records are cause for discipline under section 2266. AR 993.

As to Patient 2, the evidence established gross negligence for failure to perform a thorough, complete assessment before treatment. AR 993. The evidence also established gross negligence for failure to perform a thorough physical examination that should have included an EKG. AR 993. These acts constitute cause for discipline under sections 2234(b) and 2234(c). AR 994.

The evidence did not establish negligence for failure to obtain informed consent to intravenous ozone treatment, but it did establish negligence under section 2266 for failure to document the information Herskowitz gave to Patient 2 about intravenous ozone therapy and Patient 2’s consent. AR 994. The inadequate records are cause for discipline under section 2266. AR 994.

The evidence did not support a finding of incompetence under section 2234(d). AR 994.

Herskowitz practiced medicine with skill and distinction for many years. AR 994. At the same time, the evidence suggested that the proven allegations were typical of his practice and posed a risk to public safety. AR 995. They were not isolated incidents warranting only a public reprimand. AR 995. The ALJ recommended that the Board revoke Herskowitz’s Physician's and Surgeon's Certificate, stay the revocation, and place Herskowitz on probation for five years. AR 996.

On November 23, 2021, the Board adopted the ALJ’s Proposed Decision as its Final Decision. AR 968.

Petitioner Herskowitz contends that the weight of the evidence does not support the charges for which the ALJ found him guilty.[8]

The ALJ found that the evidence established Herskowitz’s multiple acts of negligence in failing to perform a thorough examination of Patient 1’s cervical spine before recommending and providing prolozone injections. AR 993. The evidence also established Herskowitz’s failure to document a thorough initial examination of Patient 1’s cervical spine or any follow-up focused examination, and failure to document an informed consent discussion, in violation of section 2266. AR 993.

As Herskowitz states (Pet. Op. Br. at 9), the experts for both sides were in basic agreement regarding the standard of care for the initial examination of Patient 1, who presented with neck pain. The Complainant’s expert, Sharma, testified that the typical physical examination for neck pain, back pain, or joint pain begins with visualization of the area the doctor is examining. AR 1431-32. The doctor then palpates the affected joint or area on the torso or neck to identify where the pain is. AR 1432. The doctor conducts a range of motion test to see if the patient suffers any limitations in range of motion. AR 1432. At the same time, the doctor will use provocative maneuvers to identify pinched nerves. AR 1432-33. Through neurological, sensory, and motor examinations, the doctor checks sensation in the lower and upper extremities as well as reflexes. AR 1433. The last part of the physical examination is a vascular examination of the affected area to determine the pulse in lower extremities and if the patient has any peripheral vascular disease. AR 1432-33. Herskowitz’s experts, Sosin, Bock, and Grogan, agreed.

Because Bonnist did not testify,[9] the ALJ relied heavily on her written report of Patient 1’s initial visit of August 4, 2015. Bonnist’s report lists a detailed history of the patient’s medical condition, followed by a single line: “O: Patient is A&Ox3” (which means alert and oriented as to person, time, and place), “WNWD” (which means well-nourished, well-developed), and “[h]e is not distressed, though appears uncomfortable and in pain.” AR 1028. Sharma testified that this single line gives no indication of an examination beyond a visual inspection. AR 1448-49, 1451-53. Bonnist’s report does not suggest that she palpated the neck, conducted range of motion tests, conducted a neurological examination, or conducted a vascular examination. AR 1452-53. Her examination does not meet the standard of care because the note does not show that Bonnist examined the cervical spine. AR 1450-51.

Herskowitz argues that the deficits in Bonnist’s written report are insufficient to establish that she failed to conduct the other components of a physical exam. Herskowitz testified that his office’s customary practice is for the naturopathic doctor, Bonnist or Wilson, to do a complete history and perform a physical examination, and he has witnessed them doing so in the past. Pet. Op. Br. at 9-10. Herskowitz’s experts testified that he could properly delegate the exam of Patient 1 to his assistants. Reply at 2-3.

Herskowitz adds that the ALJ also unreasonably discounted his testimony that Patient 1 showed muscular atrophy in his arms and poor grip strength due to permanent nerve damage. Panjabi’s notes three weeks earlier said that Patient 1 was losing muscle mass because the nerve conduction had decreased and was insufficient to maintain strength and muscle mass in both his arms. AR 2366-67. Because Panjabi reported decreased range of motion in the neck and atrophy and weakness in both arms, the focus after the initial examination was on a neurological exam for Patient 1’s head and neck. AR 2353, 2366. Herskowitz would have told Bonnist to focus on the pain and atrophy in those areas. AR 2367-68.

The Board’s reason for discounting Herskowitz’s testimony on this point was that Bonnist’s report stated that Patient 1 was “well-nourished and well-developed” with no mention of muscular atrophy or poor grip strength. AR 973-74. Therefore, Herskowitz’s testimony that Bonnist observed and reported the muscular atrophy and poor grip strength findings to him was inconsistent with her notation. AR 973-73. Herskowitz argues that Panjabi’s findings were in the medical record for Patient 1, and he was aware of them. See AR 2366-67. Pet. Op. Br. at 10.

Finally, Herskowitz contends that the ALJ ignored the fact that he performed a physical exam when he identified and marked trigger points on Patient 1. AR 2309, 2396. Herskowitz concludes that the weight of the evidence is that Bonnist conducted a sufficient physical exam and he reasonably relied upon her exam. Pet. Op. Br. at 10-11.

The court agrees that the office’s custom and practice by itself is some evidence that a physical exam was performed by Bonnist. The Board argues that Herskowitz is asking the court to find him and some of his experts more credible than the ALJ’s findings, but merely rearguing the credibility of the witnesses that might lead to a different result is insufficient. See Medical Bd. of California v. Superior Court, (1991) 227 Cal.App.3d 1458, 1461). Opp. at 10-11. Herskowitz correctly replies that the court makes its own determinations of witness credibility on independent review of the facts and does not defer to the ALJ’s findings. See Barber v. Long Beach Civil Service Commission, (1996) 45 Cal.App.4th 652, 658-60. Reply at 2. The court finds Herskowitz’s testimony of his office practice to be credible.

However, the Board is correct that Bonnist’s report is the best evidence of the examination that she actually performed, and it suggests that she was unaware of the necessary components for an appropriate physical exam for Patient 1. Opp. at 10. As Sharma testified, nothing in Bonnist’s report indicates that she addressed Patient 1’s cervical spine, the area of his chief complaint, by palpation, neurological examination, range of motion examination, and vascular examination. Rather, Bonnist performed only a “brief, terse physical examination” on Patient 1’s August 4, 2014 first visit, which was insufficient for Herskowitz to rely upon. AR 1448.

It is true that Herskowitz read Patient 1’s medical records and knew that Panjabi found muscular atrophy and poor grip strength. AR 2366-67. Herskowitz testified that he would have told Bonnist to focus on the pain and atrophy in those areas (AR 2367-68), and he recalled that Bonnist confirmed Patient 1’s muscle weakness based on the fact that she could slip her fingers free from his grip. AR 2368. Bonnist also told Herskowitz that Patient 1 complained of multiple areas of pain in his temple and between his eyes and that he had pain in his neck, back, and shoulder. AR 2365. This evidence is credible and suggests that Bonnist performed some portion of a proper cervical examination. Yet, it does not undermine the ALJ’s point that Herskowitz’s testimony is inconsistent with Bonnists’ notation that Patient 1 is well-developed, which is her only note on the subject. AR 973-74.

Moreover, Sharma explained that Herskowitz’s own notes for Patient 1 dated August 4, August 12, and August 19, 2015 show that he also failed to do the necessary physical exams on Patient 1’s cervical spine as he treated Patient 1 with ozone injections on those dates. AR 1455-58. Opp. at 11. The standard of care required Herskowitz to conduct a physical examination of the cervical spine each time Patient 1 came back after treatment. AR 1458. Herskowitz’s note for Patient 1’s August 12 visit reflects only the information Patient 1 reported to Herskowitz about his condition. AR 1456. There is no indication that Herskowitz conducted an examination on the August 12 visit or on August 19. AR 1457-58.

As a result, the office custom and practice for Bonnist or Wilson to conduct the initial physical examination cannot alone support the dearth of information in Bonnist’s initial August 4 report, and it does not bear at all on Herskowitz’s failure to mention an exam in his own notes. This is not just a documentation failure. Rather, the repeated failures of the medical notes to reflect a complete physical cervical examination shows that it was not performed.

Finally, Herskowitz is incorrect in arguing that the ALJ failed to consider that he would have had to examine Patient 1’s neck for the purpose of identifying the injection site. The ALJ correctly found that, while Herskowitz must have looked at Patient 1’s cervical spine to decide where to inject him, that does not mean that he performed all the components of the required physical examination. AR 977.

Thus, the ALJ thus properly found Petitioner to have committed repeated simple departures from the standard of care (repeated negligent acts under section 2234(c)) on August 4, 12, and 19, 2015, when he and Bonnist failed to perform complete physical examinations of Patient 1’s cervical spine. AR 978, 993.

Herskowitz points out that all experts, including Sharma, agreed that the trigger point injections administered to Patient 1 are low risk procedures, and the risks are bruising or bleeding from the skin puncture and transient pain. The ALJ found that the Consent Form signed by Patient 1 did not mention those risks. AR 979-80. However, the Consent Form indicates that “trigger point injections” were a potential treatment (AR 1031), and that potential risks included “[p]ain, discomfort, blistering, minor bruising, discoloration, infections, burns, itching, loss of consciousness and deep tissue injury from needle insertions.” AR 1032.

Sharma found the Consent Form to be insufficient because it does not mention the ozone injections for trigger point areas and the phrase “including but not limited to” is a blanket disclaimer that does not explain what the procedure will be. AR 1477-78. The listed treatment of “trigger point injection therapy with vitamin substances” is insufficient because ozone is not a vitamin substance. AR 1479.

Herskowitz argues that the uncontradicted evidence showed that ozone itself has very few side effects, other than pain at the injection site, which is a risk of any injection and was disclosed on the Consent Form. AR 1915. On its face, the Consent Form adequately disclosed the risks to Patient 1. Pet. Op. Br. at 11; Reply at 4.

The Consent Form generally disclosed the trigger point injection of ozone as a potential treatment and the potential risks. The ALJ also found credible Herskowitz’s testimony that he spoke to Patient 1 about the potential risks and benefits of ozone trigger point injections. AR 975-76. However, both Sharma and Sosin agreed that Herskowitz should have documented in Patient 1’s medical record a discussion with Patient 1 about the risks and benefits of the ozone trigger point injections he was to receive. AR 980. As Sharma testified, a trigger point injection is an invasive treatment, and the doctor can obtain an oral consent for that treatment. AR 1466. But there must be a conversation with the patient that is documented; a generalized form is insufficient. AR 1466-67. Herskowitz’s notes from Patient 1’s visits on August 4, 12, and 19, 2015, do not reflect an informed consent discussion about the ozone injections. AR 1475-76.

Because there is no documentation of that discussion, the Board is correct that it is uncontroverted that Herskowitz was negligent in the medical care and treatment of Patient 1 and violated section 2266. Opp. at 12-13.[10]

The ALJ found that Herskowitz was grossly negligence in failing to perform a thorough, complete assessment, and in failing to perform a thorough physical examination, including an EKG, before treatment of Patient 2. AR 993. Herskowitz further was negligent in failing to document the information he gave to Patient 2 about intravenous ozone therapy and Patient 2’s consent. AR 994.

Melikian testified for the Board regarding the standard of care for the physical examination of Patient 2, who presented with possible Lyme disease. For a patient with Patient 2’s complaints, the doctor should (a) conduct a musculoskeletal examination, (b) conduct a neurological examination, including testing motor strength, (c) review his lab work, and (d) obtain a detailed patient history from the patient with focus on mumps, measles, and rheumatic fever. AR 1708-09, 1734. The doctor should also evaluate the weaknesses reported by the patient, which for Patient 2 was body alignment weakness and burning sensations in lower extremities. AR 1713. Mora conducted a proper physical examination. AR 1744.

Melikian testified that Herskowitz’s notes do not reflect any physical examination (AR 1709-10), and Wilson’s notes for physical examination (AR 1135) show a cursory examination. Wilson wrote “General: Normal speech, normal behavior, A/Ox3 (which means alert and oriented times three to person, place, and time). AR 1710. He also wrote: “WNWD (well-nourished, well-dressed) and “NAD” (no apparent distress). AR 1711. For eye exam, Wilson wrote “PERLA” (pupils are equally round, reactive to light interiorly). That means shining a light in the patient’s eyes and checking to see if the patient could follow your finger to make sure that they track movement to all four quadrants of the visual field. AR 1711. Finally, Wilson wrote under “Neuro” that cranial nerves 2 to 12 were grossly intact. AR 1711. “Grossly intact” means there was no specific examination, but Wilson made general observations that did not reveal a gap in the cranial nerves. AR 1711.

Herskowitz argues (Pet. Op. Br. at 12, n. 6) that the ALJ rejected Melikian’s testimony regarding the significance of laboratory testing for Lyme disease, crediting Bock’s and Sosin’s testimony that lab testing is not particularly reliable for diagnosing Lyme disease, as well as finding the issue to be irrelevant because Herskowitz had concluded the treatment would be helpful even if the patient did not have Lyme disease. AR 986-88.

Not quite. The ALJ did not credit the experts’ testimony so much as she found it to be irrelevant because Herskowitz did not purport to diagnose Patient 2. AR 988.

Herskowitz notes that Sosin testified that it is common and acceptable practice to delegate the initial physical exam to another clinician. AR 1944-45. Sosin testified that a proper physical examination of Patient 2 would involve a thorough neurologic and orthopedic exam, palpation, and checking for range of motion. AR 1988-89. Sosin concluded that Wilson’s exam was adequate because some neurological examination was documented. AR 1998-99. Hershowtiz contends that, as for Patient 1, the lack of evidence in Wilson’s written report that these tasks were performed is insufficient to establish that Wilson did not conduct them. Nor does it rebut Herskowitz’s testimony that the custom and practice was for Wilson to conduct a full physical exam. The finding to the contrary is not supported by the weight of the evidence. Pet. Op. Br. at 12-13.

The court does not agree. As with Patient 1, Herskowitz could delegate the initial physical examination to Wilson, but Wilson’s record shows the physical examination was insufficient for someone with Patient 2’s symptoms because there is no evidence of a comprehensive neurological examination evaluating the lower extremity weaknesses and burning sensations, no evidence of a heart and lung examination with a stethoscope. AR 1713. This is not just a documentation failure; there simply was not a complete examination.

Moreover, Melikian explained that Herskowitz could not solely rely on Wilson’s physical examination because he had a responsibility to set the baseline for Patient 2 himself. AR 1713–14, 1798. Herskowitz admitted that he conducted no initial physical examination of Patient 2. AR 2351. Finally, Herskowitz did not document any physical examination of Patient 2 in the follow-up visits.

The ALJ found that Herskowitz’s assessment of Patient 1 was grossly negligent, relying on Melikian’s opinion that (1) Herskowitz did not conduct, or rely reasonably on Wilson to conduct, a physical examination that was adequate to diagnose Patient 2’s illness or establish a baseline; (2) if Herskowitz suspected Lyme disease, he should have given special attention to a neurological examination and should have performed an EKG; (3) Herskowitz did not document any baseline or follow-up physical examination; and (4) Herskowitz did not review subsequent laboratory test results as planned. AR 989. Hence, Herskowitz decided to embark on an expensive course of intravenous ozone therapy without a clear understanding why Patient 2 was ill or how he (Herskowitz) would evaluate the therapy’s effectiveness, and this was an extreme departure from the standard of care. AR 989.

Herskowitz argues that, in finding him guilty of gross negligence rather than simple negligence as for Patient 1, the ALJ concluded that he failed to consider diseases other than Lyme disease as the cause of Patient 2’s symptoms. The ALJ rejected Herskowitz’s testimony that “he gave careful consideration to explanations other than Lyme disease for Patient 2’s symptoms” in favor of a conclusion that he, like Sosin and Bock, believed that intravenous ozone therapy was appropriate not matter what disease was causing Patient 2’s poor health. AR 988. The failure to consider other causes “left Patient 2 at risk of substituting [his] intravenous ozone therapy for other treatments that might have addressed or even cured the diseases that caused his health complaints.” AR 995. Pet. Op. Br. at 13.

Herskowitz contends that the ALJ ignored credible evidence that he discussed and documented alternative potential diagnoses for the patient’s symptoms and tests that could be done to rule them out, such as a urine test for toxic mold, an adrenal test (ASI) because energy is related to thyroid and adrenal function, and a genomics test (23 and me test) that could help rule out other potential causes. However, Patient 2 wanted to focus his resources on treatment rather than diagnosis. AR 2417-19, 2427-22, 1338 (lower left hand corner documenting recommended urine screen, ASI, and genomics, ’23 and me’ test). Pet. Op. Br. at 13.

Considering that Patient 2 had seen Mora recently, had not achieved significant symptom relief, and was refusing testing to rule out other possible causes, Herskowitz argues that he proceeded reasonably under the circumstances. Sosin testified that traditional medicine does not have effective treatments for chronic Lyme disease or Lyme disease-like symptoms, consisting primarily of medications for symptom relief, such as antidepressants, sedatives, and pain medications. AR 1911-12. Given Patient 2’s long history of symptoms and Mora’s suspicions that he had Lyme disease or a similar tick-bite related disease, Herskowitz’s treatments of the patient based on the examination and other available information was within the standard of care. Pet. Op. Br. at 13-14.

The court accepts Herskowitz’s testimony that he discussed a differential diagnosis with Patient 2. AR 2147-18. Additionally, Sosin, like Melikian, was skeptical about Mora’s diagnosis, but he testified that intravenous ozone therapy was a reasonable treatment choice regardless of the cause of Patient 2’s health complaints. AR 986. Finally, Patient 2 was interested in treatment, not diagnosis. Consequently, the court concludes that Herskowitz was not required to perform a diagnosis of Patient 2.

As for the ALJ’s finding that Herskowitz was grossly negligent in putting Patient 2 on a “an expensive, multi-month course of intravenous ozone therapy” without a clear understanding of how he would evaluate the therapy's effectiveness, Herskowitz argues that the ALJ naively assumes that there is always a clear answer for what the patient’s condition is and how to treat it. For patients such as Patient 2 with complex medical conditions, there is no clear-cut answer how to appropriately treat such conditions. Herskowitz did his due diligence in determining the causes of Patient 2’s condition and attempting to treat it, as evidenced by Wilson’s examination, the opinions of Sosin and Bock, and his own testimony. Given Patient 2’s long history of symptoms, Mora’s concerns, and the fact that it was likely that Patient 2 had Lyme disease or similar tick-borne illness, his treatment of Patient 2 was well within standard of care. Reply at 5-6.

While the court agrees that Herskowitz was not required to make a diagnosis or know exactly how to treat Patient 2, a proper assessment is always required. The ALJ’s conclusion is correct that it was grossly negligent to (a) assess Patient 2 without a proper initial physical examination that established a baseline, paid special attention to a neurological examination, and was properly documented, (b) fail to conduct physical examinations in follow-up visits, and (c) fail to review subsequent laboratory test results as planned. AR 989.

The ALJ accepted Melikian’s opinion that it was grossly negligent not to perform an EKG as part of Patient 2’s physical examination. AR 993. Melikian testified that the physical examination should have included an EKG because secondary cardiac conduction abnormalities are a known complication of Lyme disease. AR 986. One of the known complications of Lyme disease is secondary cardiac conduction anomalies, particularly “cardiac block,” which involves a delay or prolongation of a specific current that runs from one side of the heart to the other. AR 1697, 1734. Melikian explained that, because heart block occurs in patients with Lyme disease, Herskowitz should have ordered an EKG for Patient 2, who presented with a chief complaint of Lyme disease. Id.

Bock testified that Herskowitz did not deviate from the standard of care for failure to obtain an EKG. AR 987. The ALJ did not find this persuasive because both premises of Bock’s conclusion were false. AR 987. Bock said that Patient 2 did not complain of heart-related symptoms, but he did complain of chronic fatigue. AR 987. Bock said that Patient 2 was not taking any medication that might cause heart rhythm abnormalities, but he was on hydroxychloroquine for the previous ten months which Bock admitted has the potential to alter heart rhythm. AR 987.

Sosin also testified that Herskowitz did not deviate from the standard of care for failure to obtain an EKG. AR 987. Patient 2 had a normal heart rate, had no symptoms suggesting heart dysfunction, and was relatively young. AR 987. This opinion failed to address the possibility that long-term consequences from Lyme disease and treatment with hydroxycholoroquine include heart rhythm abnormalities. AR 987-88. Therefore, his testimony was less persuasive than that of Melikian. AR 988.

Herskowitz argues these findings are not supported by the evidence or logic. An EKG was unnecessary because Patient 2 showed no sign or symptom of cardiac problems such as chest pain or shortness of breath, and his pulse was normal. AR 1946, 2172. In 30 years of having Lyme disease, he never had any cardiac condition identified in his medical record. AR 2172-73. Bock testified that Patient 2 did not show signs of any cardiac rhythm abnormalities even while on hydroxychoroquine, when it would be expected to produce or exacerbate such symptoms. AR 2172. Bock added that an EKG may be appropriate in Lyme disease patients who have a cardiac history, but Patient 2 was a relatively young man of 38 without such a history. AR 2172. Pet. Op. Br. at 14.

While Herskowitz is correct that Patient 2’s previous use of hydroxychloroquine did not require an EKG because he was no longer taking that medication, he complained about chronic fatigue. He was a long-term victim of either Lyme disease or a relapsing disease, and the former can have secondary complications of a heart block. AR 1696-97. He complained of chronic fatigue, which can be a heart-related symptom. This fact supported the need for an EKG even though he was a relatively young man with no history of cardiac problems. Herskowitz should have ordered an EKG for Patient 2, and Melikian’s opinion that it was an extreme departure from the standard of care not to do so is supported by the weight of the evidence.

The ALJ found that Bock, Sosin, and Herskowitz all credibly testified that transient fatigue and possible hematoma at the venipuncture site are potential risks and the benefits are “anti-inflammatory” and “anti-infective”. AR 991. While Bock opined that the general information on the Consent Form memorializes the oral disclosures Herskowitz made to Patient 2, this opinion was not persuasive. AR 991. The ALJ relied on Sosin’s opinion that Herskowitz’s failure to document any conversation about the benefits and risks was a simple departure from the standard of care. AR 991. Thus, the evidence did not show that Herskowitz failed to obtain Patient 2’s informed consent, but it did show that Herskowitz’s failure to document the informed consent violated the standard of care. AR 991.

Herskowitz argues that the Consent Form signed by Patient 2 was the same form signed by Patient 1 and, as was the case with Patient 1, it adequately set forth the risks of the ozone injections, in noting that potential risks of “[p]ain, discomfort, blistering, minor bruising, discoloration, infections, burns, itching, loss of consciousness and deep tissue injury from needle insertions… aggravation of pre-existing symptoms.” AR 1328. The risk of transient fatigue is indicated by possible “aggravation of pre-existing symptoms,” which included fatigue. The risk of possible hematoma was covered by “deep tissue injury from needle injections.” On its face, the Consent Form adequately disclosed the risks to Patient 2. Pet. Op. Br. at 15.

As with Patient 1, Herskowitz was negligent in the medical care and treatment of Patient 2 because there is no documentation of an informed consent discussion between himself and Patient 2. Both Sharma and Sosin agreed for Patient 1 that Herskowitz should have documented a discussion about the risks and benefits of the ozone trigger point injections he was to receive. AR 980. Similarly, Melikian explained that informed consent requires a specific discussion with the patient prior to engaging in a therapeutic plan, especially if it is invasive. That discussion should be particularized enough to address the actual treatment being considered. AR 1746-47. Patient 2’s medical records do not show a discussion between Herskowitz and Patient 2 that would satisfy the standard of care. AR 1747-48. The general Consent Forms in Patient 2’s medical record were not sufficient because they were not specific to the Herrmann machine intravenous ozone treatment for Patient 2. AR 1748-53.

Herskowitz may have talked to Patient 2 about the risks, benefits and alternatives to the proposed treatment during the April 13, 2017 office visit, but his failure to document the conversation violated section 2266.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner Herskowitz’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for January 31, 2023 at 1:30 p.m.

[1] Petitioner Herskowitz failed to include the bates-stamped version of the Board’s decision in the trial notebook as ordered by the court at the trial setting. This failure was disruptive of the court’s review. Petitioner’s briefs also cite to line numbers on transcript pages from the Administrative Record, again which the court ordered the parties not to do. Petitioner’ counsel is directed to follow the court’s instructions in future cases.

[2] The Board requests judicial notice of its Manual of Model Disciplinary Orders and Disciplinary Guidelines (“Guidelines”). RJN Ex. 1. While the Guidelines generally would be subject to judicial notice, they concern the penalty of probation. As Petitioner notes in reply (Reply at 7), he has not challenged the severity of the penalty, and there was no reason for the Board to include a penalty discussion in its opposition. See Opp. at 16-17. The Guidelines are irrelevant and the request for judicial notice is denied.

[3] All further statutory references are to the Business and Professions Code unless otherwise stated.

[4] The parties cite to AR 1011-25, 1030, 1033-51, and 1056-96 but failed to include them in the Joint Appendix. The court has reviewed these Administrative Record pages anyway.

[5] The parties do not define the term “naturopathic doctor”, but he or she is not a medical doctor and is separately educated and licensed. See AR 69.

[6] The stem cell harvesting allegation is not part of this case.

[7] Bonnist’s declaration was excluded at the administrative hearing, but the parties do not cite to the ALJ’s decision on this issue. It is set forth herein for completeness.

[8] For convenience, the court will refer to the ALJ’s Proposed Decision and not the Board’s final decision.

[9] Herskowitz speculates that the most likely reason Bonnist did not testify is that she had resided and practiced in Connecticut since 2019 and was not subject to California subpoena. See e.g., Civil Code §1989 (non-California residents are not subject to subpoena). See AR 772. Her declaration was excluded on the basis that it stated that she did not specifically recall the details of her exam of Patient 1 some five or six years earlier, and her discussion of her move to Connecticut was not specifically excluded. Pet. Op. Br. at 10, n. 5; Reply at 3-4.

The Board correctly responds that it is speculative to conclude that (a) Bonnist would have testified that she completed all components of an appropriate physical exam and (b) she did not testify because she lives in Connecticut. The Board notes that the administrative hearing was held remotely, all witnesses appeared via videoconference, and Bonnist could have appeared remotely. Opp. at 11, n. 3.

In reply, Herskowitz argues that, under the relaxed rule of administrative hearsay, Bonnist’s declaration was improperly excluded. Reply at 3-4. The court need not consider this argument as it is raised both for the first time in reply and unsupported by citation. See Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333. Moreover, administrative hearsay is admissible only if it supplements or explains an independent fact in evidence. Govt. Code §11513(d). Herskowitz fails to show what independent fact Bonnist’s declaration corroborates.

[10] Herskowitz replies that his failure to document the conversations with Patient 1 is a lesser offense than not informing a patient of the risk and benefits of a procedure altogether. Reply at 4-5. This is true, but it is not relevant to the issue of guilt.