Judge James C. Chalfant, Case Number: 23STCP02905, Date: 2024-05-23 Tentative Ruling

Criselda Calayan Abad-Santos, M.D. v. Medical Board of California, 23STCP02905

Tentative decision on petition for writ of administrative mandamus: denied

Petitioner Criselda Calayan Abad-Santos, M.D. (“Abad-Santos”) seeks a writ of administrative mandamus directing Respondent Medical Board of California (“Medical Board”) to set aside its decision revoking her medical license.

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

On August 11, 2023, Petitioner Abad-Santos filed the Petition against Respondent Medical Board for writ of administrative mandamus. The Petition alleges in pertinent as follows.

Abad-Santos is a practicing psychiatrist, licensed in the State of California since 2008. Pet., ¶¶ 1,6.

On or about March 1, 2022, an Accusation was filed against Abad-Santos alleging that she had committed gross negligence, repeated negligent acts, prescribed without an appropriate prior examination, and failed to maintain adequate records. Pet., ¶5. The allegations were that Abad-Santos engaged in repeated negligent acts in the care and treatment of Patients 1 and 2, gross negligence in the care and treatment of Patient 2, prescribed for both patients without appropriate prior examination, and failed to maintain adequate records for both patients. Pet., ¶6.

An administrative hearing was held before Administrative Law Judge Joseph Montoya (the “ALJ”). Pet., ¶7. Abad-Santos presented testimony and documentary evidence that she had not acted below the standard of care with respect to both patients. Pet., ¶7.

On August 14, 2023, the Medical Board adopted the ALJ’s proposed decision and revoked Abad-Santos’ medical license. Pet., ¶8, Ex. 1.

Abad-Santos contends the Medical Board committed a prejudicial abuse of discretion by failing to proceed in the manner provided by law and did not provide her with a fair hearing. Pet., ¶11. The Medical Board’s decision also is not supported by the findings, and the findings are not supported by the evidence, because Abad-Santos showed through her own and expert witness testimony that her care and treatment were not below the standard of care. Pet., ¶12.

Abad-Santos seeks (1) a writ of mandamus directing the Medical Board to set aside its decision and reinstate her medical license, (2) reasonable attorney fees, (3) costs of the action, and (4) such other relief as the court deems just and proper. Pet. at 3.

On August 28, 2023, the court denied Abad-Santos’ ex parte application for stay of the Medical Board’s decision.

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, (“Fukuda”) (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.

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.

The agency’s decision must be based on 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 CCP 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.

The standard of proof in administrative proceeding is relevant on mandamus review. Li v. Superior Court (Sacramento County), (2021) 69 Cal.App.5^th 836, 844. Where the administrative burden of proof is clear and convincing evidence, the trial court must account for that standard of proof when exercising its independent judgment on the sufficiency of the evidence. Id. at 865. The trial court must apply the principles of deference and presumptive correctness in the context of whether the findings are supported by clear and convincing evidence rather than a mere preponderance of the evidence. Id.

The Medical Board disciplined Abad-Santos’ medical license three times prior to the present matter, in the years of 2012, 2015, and 2017. AR 174-334. Abad-Santos completed her probation on September 1, 2018. AR 174.

On March 30, 2012, in the case titled In the Matter of the Accusation Against Criselda Calayan Abadsantos, M.D. (Board Case No. 2010-205633) (the “2012 Decision”) Abad-Santos’ had been accused of negligent prescribing of controlled substances to family members and friends. AR 195-208.

Pursuant to a stipulated settlement, the Medical Board revoked Abad-Santos medical license and stayed the revocation, placing her on probation for three years with the following terms and conditions: (a) she must successfully complete a medical clinical training program; (b) she was restricted from prescribing or furnishing controlled substances to her family members; (c) she was obligated to maintain a record of all controlled drugs that she prescribed; and (d) she must complete coursework in prescribing practices, medical record keeping, and ethics. AR 178-82.

In April 2014, in the case titled In the Matter of the Petition to Revoke Probation Against Criselda Calayan Abadsantos, M.D. (Board Case No. D1-2010-205633) (the “2015 Decision”), the Medical Board filed a petition to revoke probation because Abad-Santos failed to successfully complete the clinical training program probation condition. AR 225. The facts giving rise to the 2015 Decision were that Abad-Santos had enrolled, participated in, and failed the Physician Assessment and Clinical Education Program (“PACE”) at the University of California San Diego Medical School. AR 225-27.

Pursuant to a stipulated settlement, Abat-Santos admitted that, during phase II of PACE, the clinical education and assessment portion, she was assessed as a Category 4 Fail (i.e., poor performance not compatible with overall competency and safe practice). AR 212, 225-27. The 2015 Decision, effective April 1, 2015, extended Abad-Santos’ probationary term by one year and imposed additional probation terms, including requirements that she (1) re-enroll in and successfully complete a clinical training program, (2) not prescribe or furnish controlled substances to her family members, (3) continue to make records of her prescriptions of controlled substances, and (4) complete a Master Class in psychopharmacology offered at Harvard Medical School and other courses. AR 212-20.

In November 2016, in the case titled In the Matter of the Petition to Revoke Probation Against Criselda Calayan Abadsantos, M.D. (Board Case No. 800-2016-027627) (the “2017 Decision”), the Medical Board filed a second petition to revoke Abad-Santos’ probation. AR 264.

Pursuant to a stipulated settlement, Abad-Santos admitted that she had participated in the PACE program and passed, but with significant deficiencies. AR 264, 276-78. The PACE program recommended several remedial measures which were incorporated into the terms of her probation. AR 276-78. The 2017 Decision, effective September 1, 2017, extended Abad-Santos’ probationary term for another year. AR 265-72. The conditions and terms of her probation included that she (1) repeat the medical record keeping course, (2) subject her practice to monitoring for at least a year, (3) participate in a psychopharmacology course, (4) retake the buprenorphine waiver training course, (5) not prescribe or furnish controlled substances to family members, and (6) maintain a log of all controlled substances that she prescribed. AR 265-72.

On March 1, 2022, the Board’s Executive Director, acting as the Complainant, initiated the Accusation against Abad-Santos alleging gross negligence, repeated negligent acts, prescribing without an appropriate prior examination, and failure to maintain adequate records in connection with the care of two patients. AR 151-63. Thereafter, a First Amended Accusation was filed alleging the same causes for discipline. AR 680-92.

The first cause for discipline (gross negligence as to Patient 2) alleged that Abad-Santos (1) relied on Patient 2’s report of her medications and medical co-morbidities without attempting to obtain appropriate medical records, consultation with concurrent prescribers, or consideration of other physicians’ treatment plans, (2) prescribed psychotropic medications to Patient 2 without obtaining thorough records or conducting baseline examinations and periodically monitoring for changes in the patient’s physical health through physical examinations, vital signs, laboratory studies, and ECGs for a known co-morbid cardiovascular condition, (3) failed to complete medication reconciliations, (4) prescribed stimulant medications to Patient 2, who had a co-morbid cardiovascular condition, without the consideration of possible safety issues, and (4) prescribed benzodiazepines to Patient 2, who was taking opioids, and relied solely on psychoeducation of the risks rather than exercising restraint in prescribing or collaborating with the other physicians regarding the importance and handling of benzodiazepine versus opioid indication alternatives. AR 688-89.

The second cause for discipline (repeated acts of negligence) alleged that Abad-Santos repeatedly committed simple negligence with respect to her treatment of Patient 1 by (1) failing to obtain and monitor Patient 1’s pulse and blood pressure levels while prescribing her Vyvanse, at baseline and thereafter, and (2) failing to obtain and monitor Patient 1’s pulse, blood pressure, and serum creatinine levels while prescribing her Cymbalta, at baseline and thereafter. AR 689-90.

The third cause for discipline alleged that Abad-Santos prescribed controlled substances and/or dangerous drugs to Patients 1 and 2 without an appropriate prior examination. AR 690.

The fourth cause for discipline (failure to maintain adequate records) alleged that Abad-Santos is subject to disciplinary action under Business and Professions Code section 2266 in that she failed to maintain adequate records for Patients 1 and 2. AR 690.

The hearing was held before the ALJ on March 20, March 22, and March 23, 2023. AR 851-1299. The witnesses were Complainant’s expert, Dr. Peter Maxwell Ferren (“Ferren”), Abad-Santos’ expert, Dr. Samuel Miles (“Miles”), and Abat-Santos herself.[1]

Psychiatrist Ferren, the Complainant’s expert, testified in pertinent part as follows.

Abad-Santos identified Patient 1 as a 28-year-old single, Korean-American female, but Abad-Santos’ mental status examination documented Patient 1 as a “young, white female”. AR 880.

Abad-Santos prescribed Vyvanse (lisdexamfetamine), a stimulant medication, which is a Schedule II controlled substance used to treat attention deficit hyperactivity disorder. AR 880. She also prescribed Cymbalta (duloxetine), a psychotropic medication. When prescribing Vyvanse and Cymbalta to a patient, the standard of care requires a physician to obtain the patient’s baseline pulse and blood pressure, and periodically monitor those vital signs for patient safety. AR 453,[2] 888-89. Abad-Santos never obtained Patient 1’s blood pressure or pulse.[3] AR 453. 888-89. There should also have been a baseline cardiac evaluation for both drugs. AR 885, 887. There also should have been a serum creatinine level at the baseline for Cymbalta. AR 453. Her failures were a simple departure from the standard of care. AR 453, 889.

Xanax (alprazolam), a benzodiazepine, is a Schedule IV controlled substance. AR 885-86. Because of the risk of psychological and/or physiological dependence on Xanax, it is important to explain to the patient the risks, benefits, and alternatives to taking this medication. AR 451-52, 885-87. Abad-Santos did not document that she warned Patient 1 about the risk of developing dependence on Xanax. AR 451-52, 886. This was a simple departure from the standard of care. AR 887.

Patient 2 was 69 years old when Abad-Santos started treating her. AR 890. When a patient is of advanced age like Patient 2, or reports medical co-morbidities, the standard of care requires medication reconciliation. AR 890. It is important to develop a treatment plan that is compatible with the treatment plans of other physicians. AR 891. If there are co-morbidities, it means that there are medical problems or conditions besides those identified by the psychiatrist as mental health disorders. AR 891. When a patient is advanced in age, it is important to be mindful that they may metabolize medications differently than when they were younger. AR 891-92. The patient’s self-reporting may not be accurate, and the psychiatrist should collaborate with the patient’s concurrent medical providers to verify self-reported medical conditions by obtaining medical records, including medications prescribed by other physicians, and consult with these physicians regarding the safety of the recommended psychotropic medication treatment plan. AR 455, 890-92, 912.

When she first presented to Abad-Santos, Patient 2 self-reported that she was taking five medications: Celebrex, Cardizem, Atacand, hydrocodone, and Opana ER. AR 455, 892-93. Cardizem and Atacand are blood pressure medications that suggest a medical condition involving the cardiovascular system that Patient 2 did not disclose to Abad-Santos. AR 455, 892-93. Additionally, Patient 2 reported that she had type II diabetes. AR 893. Many patients would be expected to be taking medication for this condition, but Patient 2 did not report taking any diabetes medication. AR 893. Nor was there any indication that Abas-Santos asked about diabetes medication. AR 893. Despite the fact that Patient 2 provided the name of her primary care physician, Abad-Santos made no attempt to verify the information provided by Patient 2 regarding her medications and her medical co-morbidities. AR 455-56, 893-94. Nor did Abad-Santos attempt to communicate with Patient 2’s cardiologist or pain management physicians. AR 455-56, 904-06. She relied solely on Patient 2’s report of her medications and medical co-morbidities. AR 894-95.

There was no evidence that Abad-Santos conducted her own monitoring of basic vital signs. AR 455, 978-79. Abad-Santos noted that Patient 2 was taking a new antihypertensive medication but did not know the name of the medication because Patient 2 did not know the name. AR 898-99. Despite this, Abad-Santos never contacted Patient 2’s other treating providers, and therefore, did not verify Patient 2’s concurrent medications. AR 455-56, 893-94, 898. This failure was an extreme departure from the standard of care. AR 456.

The standard of care does not depend on where one practices. AR 911-12. “The issue is that there is there is no attempt to obtain records to ask the patient for authorization to do that, to undertake any process of verifying medical conditions and medications….So the concerning part of the extreme departure is the failure to even ask the patient and to try to do this.” AR 911-12.

The process of medication reconciliation is ongoing and includes documenting a list of medications from medical records, and reviewing each medication with the patient at the time of evaluation to determine if each medication is being taken or not and when the last dose was taken as well as adding any missing medications and subtracting any incorrect or obsolete medications. AR 455-56, 890-91. The purpose is to provide a current, accurate list of medications to inform a safe, appropriate treatment plan moving forward including both psychotropic and non-psychotropic medication. AR 455-56, 890-92. As a patient’s medications prescribed by another physician may change during the course of treatment, medication reconciliation is indicated at every appointment as there may be an impact on the psychiatrist's psychotropic medication treatment plan. AR 455-56, 895, 906. Abad-Santos’ failure to perform medication reconciliations was an extreme departure from the standard of care. AR 456, 895, 899.

The standard of care for prescribing psychotropic medication is to conduct a psychiatric evaluation, discuss with the patient the diagnoses made, develop a recommended treatment plan discussed with and agreed to by the patient, and obtain informed consent following discussion of risks, benefits, and alternatives for each medication. AR 455, 890-92. A psychiatric evaluation includes a review of medical records. AR 455, 890-92. This is indicated to ensure, in part, that medication is prescribed with considerations for contraindications such as an allergy or dosing modifications due to co-morbid medical conditions such as an impairment in liver functioning that might alter metabolism of medication. AR 455, 890-92. Because the safe prescribing of psychotropic medications may require baseline and periodic screening examinations, including physical examination, vital signs, laboratory studies, and electrodcardiogram, the psychiatrist may be able to rely on examinations conducted by primary care and medical specialty physicians as part of their medical safety monitoring of psychotropic medications prescribed by the psychiatrist. AR 455, 895, 899-900. Abad-Santos failed to conduct a baseline examination and ongoing medication reconciliation, which was an extreme departure from the standard of care. AR 456, 895.

At the first visit, Abad-Santos diagnosed Patient 2 as having major depressive disorder, post-traumatic stress disorder, panic disorder, and generalized anxiety disorder. AR 895. She prescribed Lexapro, Adderall, a stimulant and Schedule II controlled substance, and Klonopin, a benzodiazepine and Scheduled IV controlled substance, to be taken regularly. AR 455-56, 895-96. Abad-Santos also prescribed Xanax, another benzodiazepine, on an as-needed basis. AR 455-56, 895-96. She continued to prescribe controlled substances that could affect the cardiovascular system and increase the level of risk and danger to the patient. AR 456, 896-97. Despite continuing to prescribe psychotropic medications, Abad-Santos never communicated with Patient 2’s other treating physicians, such as her cardiologist. AR 456, 896-901, 904-06, 911-12. This was an extreme departure from the standard of care. AR 456, 899.

Abad-Santos knew that Patient 2 had significant medical co-morbidities, including a cardiovascular condition. AR 455-56, 896-97. Abad-Santos prescribed Adderall where there was an indication of cardiovascular condition. AR 457, 899.[4] In this situation, the psychiatrist needs to go further because this type of stimulant medication can have adverse effects on the heart. AR 457, 899. In her interview, Abad-Santos demonstrated a lack of knowledge about stimulants. AR 457, 900-01.

At Patient 2’s first visit, Abad-Santos prescribed both long-acting and short-acting benzodiazepines, clonazepam (Klonopin) and alprazolam (Xanax), respectively. AR 457-58, 902. The difference between a long-acting and short-acting benzodiazepine is how long the medication remains available in the body. AR 903. Klonopin might be expected to last for 12 hours whereas Xanax might be bioavailable for two hours. AR 903. Prescribing the two benzodiazepines together has the potential for an additive effect. AR 458-59, 904-05. In addition, because of Patient 2’s advanced age, her metabolism may be reduced compared to that of a younger person, and thus her body may retain the benzodiazepines for a longer period, necessitating lower doses of the medications. AR 458-59, 912-13. The dose of benzodiazepine prescribed to a patient cannot be evaluated in a vacuum because the “a low dose might have a different bioavailability than the same dose might have a different bioavailability in a different patient, particularly an older patient.” AR 913. The prescription of two benzodiapzepines of different duration for two different indications represents a simple departure from the standard of care. AR 458-59.

Patient 2 disclosed to Abad-Santos that she was taking two opioids, hydrocodone and extended release oxymorphone (Opana). AR 457, 902. There is a known risk of respiratory suppression in patients who are concurrently taking opioid medications and benzodiazepines. AR 457, 0901-02. Although counseling a patient about the individual risks of a benzodiazepine medication prescribed alone and the increased risk when prescribed in combination with an opioid is important, the standard of care is higher than simply providing psychoeducation. AR 457, 904-05. The standard of care requires physician restraint in prescribing benzodiazepines in combination with opioids to minimize the risk of mortality. AR 457, 904-05. Accordingly, Abad-Santos should have either exercised restraint in prescribing benzodiazepines to Patient 2 or collaborated with the other treating physicians. AR 458-59, 904-06. Her reliance solely on psychoeducation of the risks rather than restraint was an extreme departure from the standard of care. AR 459.

Psychiatrist Samuel Miles, M.D. (“Miles”), Abad-Santos’ expert, testified in pertinent part as follows.

When prescribing Vyvanse and Cymbalta to a patient, the standard of care requires a physician to obtain the patient’s baseline pulse and blood pressure, and periodically monitor those vital signs for patient safety. AR 1037. Abad-Santos was not required to conduct a baseline serum creatinine examination before prescribing Cymbalta because, with one exception, every reference that he reviewed, including the manufacturer’s package insert, states that there is no need for any kind of laboratory testing. AR 1037-38.

Abad-Santos was not required to have a separate signed informed consent for Xanax. That is something physicians in institutions do, and only for certain medications, but physicians with outpatient practices do not do so. AR 1037. Miles agreed that failing to inform a patient about the risk of developing dependence on Xanax would fall below the standard of care. AR 1066.

Abad-Santos’ documentation error concerning a “young white female” versus a “Korean American female” was not below the standard of care because it was a typographical mistake that has no clinical relevance 99% of the time. AR 1038-39.

Abad-Santos did not commit gross negligence by relying on Patient 2’s self-reporting of medications and medical co-morbidities without attempting to obtain appropriate medical records, consult with concurrent prescribers, or consider other physicians’ treatment plans because Patient 2 appeared to be a patient who was articulate about her medical condition and completed intake forms with great specificity. AR 1040. Obtaining information from other physicians is not always necessary when a patient is sufficiently informed of their own medical issues to describe the treatments they are getting. AR 1040-41.

Abad-Santos was not required to conduct baseline examinations before prescribing psychotropic medication because Patient 2 was receiving treatment from other physicians. AR 1040-41. Abad-Santos could rely on the patient’s involvement with other physicians. AR 1041. A physician can make calls and send out emails, but often other doctors do not respond. AR 1042. While it is good practice to try to obtain information from other physicians, physicians do not always have the opportunity to do so. AR 1040-42. Miles acknowledged that Abad-Santos made no attempt to contact other providers and there was no documentation of any attempts of phone calls or e-mails to other physicians. AR 1072-73.

Miles acknowledged that the prescribing of psychotropic medications requires periodic monitoring of the patient’s mental and physical conditions, and that the failure to do so would be a departure from the standard of care. AR 1071.

Abad-Santos did not engage in gross negligence by failing to complete medication reconciliation because a reconciliation is only necessary when a physician first sees their patient and then to check in from time to time if there have been any changes. AR 1042.

Abad-Santos was not grossly negligent in prescribing stimulant medications to a Patient 2, who had a co-morbid cardiovascular condition, without the consideration of possible safety issues. AR 1051. Miles believed that Abad-Santos was considering the safety issues, and she was aware that Patient 2 was seeing her primary care physician and cardiologist and they communicated with Patient 2 regarding these issues. AR 1051-52.

There is a known risk of respiratory suppression in patients who are concurrently taking opioid medications and benzodiazepines. AR 1074. Abad-Santos was not grossly negligent by prescribing benzodiazepines to Patient 2, who was taking opioid medication concurrently prescribed by another physician, or by relying solely on psychoeducation of the risks rather than exercising restraint in prescribing or collaborating with the other physicians regarding the importance and handling of benzodiazepine versus opioid indication alternatives. AR 1052. She prescribed benzodiazepines to Patient 2 with restraint because the patient was also taking opioid medication prescribed by another physician. It is not reasonable that a patient be required to choose between treatment for pain, or treatment for anxiety and muscle cramps; the patient needed treatment for all these conditions. AR 1051-52. It is usually difficult to speak to pain management doctors. AR 1052. He admitted that there was no evidence of an impediment to Abad-Santos collaborating with Patient 2’s pain management physician. AR 1072, 1074-75.

Abad-Santos was not guilty of simple negligence by prescribing low doses of alprazolam (Xanax), a short-acting benzodiazepine, and Valium, a long-acting benzodiazepine. AR 1056-58. Patient 2 had been on short-acting medication for a while for anxiety and sleep in very low doses. AR 1056. The longer-acting medication, Valium, was being prescribed for muscle spasm and it is an effective muscle relaxer. AR 1057. It needs to be prescribed cautiously with lower dosages when someone is on an opiate or an older patient. AR 1057. Patient 2 was given Valium twice a day whereas someone in her 30s might have it four times a day. AR 1057. The dosage of Valium was reasonable, and the Xanax prescription was a low dose. AR 1058. Abad-Santos also warned Patient 2 about the risk of drug interaction when she wanted to return to diazepam for muscle spasms. AR 1058.

It also was not below the standard of care to record in a progress note that Provigil is denied and that Patient 2 would still like to take Adderall. AR 1060. Abad-Santos was reinforcing the need for blood pressure medication and Patient 2 was being followed by a cardiologist. AR 1060. Abad-Santos could rely on Patient 2 to inform her cardiologist and/or Abad-Santos if her blood pressure went up again. AR 1060.

On June 12, 2023, the ALJ issued his proposed decision. AR 805-35. The ALJ summarized Abad-Santos’ education and training, prior discipline (AR 807-10) and the testimony of experts Ferren and Miles (AR 810-16).

Ferren opined that Abad-Santos committed simple negligence in her care and treatment of Patient 1 when she (a) prescribed Vyvance and Cmbalta without obtaining a baseline pulse and blood pressure and by failing to monitor them during treatment, (b) failed to check creatine levels when prescribing Cymbalta, and (c) failed to obtain informed written consent to the risk of dependence on Xanax. AR 817.

Ferren opined that Abad-Santos committed extreme departures from the standard of care for Patient 2 when she (a) relied solely on Patient 2’s report of her medications and co-morbidities without attempting to obtain records or consult her treating physicians, (b) prescribed psychotropic medications without conducting baseline examinations or obtaining medical records, and failed to periodically monitor for changes related to a known cardiovascular condition, and (c) failed to conduct a baseline and ongoing medication reconciliation. AR 817. Abad-Santos’ (d) prescription of a stimulant, Adderall, to a patient with cardiovascular morbidity without considering safety issues represented a lack of knowledge (e) her prescription of short and long-acting benzodiazepine was a simple departure of the standard of care, and (f) her prescription of these drugs to a patient taking opioids without collaborating with her other physicians was an extreme departure. AR 817-18.

Miles opined that, if Abad-Santos prescribed Xanax to Patient 1 without informing her of the risk of dependence, that would be a departure from the standard of care. However, he believed her when she told him that she did so. AR 818. He agreed that periodic monitoring of pulse and blood pressure is required when prescribing Vyvance and Cymbalta. He disagreed with Ferren that a baseline serum creatine is required when prescribing Cymbalta. AR 819. He opined that Patient 1’s chart shows adequate informed consent about the prescription of Xanax. A separate written consent is not required outside of institutional settings. AR 820.

Miles agreed that the prescription of psychotropic medication requires periodic monitoring and optimally this can occur through conversations with treating physicians. He disagreed with Ferren that Abad-Santos could not rely on a patient’s reports of medications and co-morbidities, noting that the patient is often the only source of information. AR 819. Abad-Santos was making adequate assessments and monitoring of Patient 2’s condition and could rely on Patient 2’s other doctors to treat her other conditions. AR 820. Miles opined that Abad-Santos used adequate restraint in prescribing benzodiazepines to a patient taking opioids and that she adequately educated Patient 2 about the risks. AR 819.

The ALJ summarized Abad-Santos’ testimony (AR 820-21) and made findings regarding the expert testimony. AR 824-26. The ALJ mostly credited Ferren’s testimony but did not criticize Miles’ qualifications. AR 824.

Miles’ opinion also was credited that Abad-Santos did not commit a simple departure from the standard of care by failing to have a written informed consent warning Patient 1 about the risks of dependence when taking Xanax. AR 825. Abad-Santos’ failure to document this advice was a simple departure from the standard of care. AR 825.

Ferren’s opinions were credited that Abad-Santos committed extreme departures from the standard of care for Patient 2 when she (a) relied solely on Patient 2’s report of her medications and co-morbidities without attempting to obtain records or consult her treating physicians, (b) prescribed psychotropic medications without conducting baseline examinations or obtaining medical records, and without periodically monitor for changes related to a known cardiovascular condition, and (c) failed to conduct a baseline and ongoing medication reconciliation. AR 825-26.

Ferren’s opinion also was credited that Abad-Santos’ prescription of short and long-acting benzodiazepine was a simple departure of the standard of care. His opinion further was credited that Abad-Santos’ prescription of these drugs to a patient taking opioids without collaborating with her other physicians was an extreme departure. AR 826.

All four causes to discipline Abad-Santos’ license were established. AR 832. The ALJ noted that this case was not Abad-Santos’ first brush with discipline. She had been on probation from March 30, 2012 to September 1, 2018. During that probationary period, she failed PACE, barely passed it a second time (with deficiencies), twice took a pharmacology course and twice took a record-keeping course. AR 834. She first saw both Patients 1 and 2 while she was on probation and her breaches occurred during her probation. AR 834. Consequently, her contemporaneous remedial education did not appear to have improved her practice. AR 834-35. The Complainant’s argument that the Board should not have to wait until Abad-Santos harms a patient was well taken. Therefore, the ALJ recommended that Abad-Santos’ license be revoked. AR 835.

On July 13, 2023, the Medical Board adopted the ALJ’s proposed decision. AR 804.

Petitioner Abad-Santos argues that the Medical Board’s decision is not supported by substantial evidence.

When a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. A recitation of only the part of the evidence that supports the petitioner’s position is not the “demonstration” contemplated by this rule. Accordingly, if a petitioner contends that some issue of fact is not sustained, he is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881). The "[f]ailure to do so is fatal" to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings." Defend the Bay v. City of Irvine, (2004) 11928 Cal.App.4th 1261, 1266. The reviewing court should "not independently review the record to make up for appellant's failure to carry his burden." Ibid.

Abad-Santos’ opening brief cites only the testimony of her expert without citing Ferren’s opinions. As a consequence, Abad-Santos has not met her burden and the Petition must be denied.

If, arguendo, the court considered the merits, the Petition still would be denied.

Abad-Santos argues that the ALJ’s[5] decision overlooks credible testimony by Miles contradicting gross negligence. The decision gave greater credit to the Complainant’s expert, Ferren, over that of her expert, Miles. AR 824-26. She argues that Ferren’s medical practice is completely different than Abad-Santos’ because he works full-time as a hospital-based psychiatrist where the standard of care is different, given that hospitals are more sophisticated and have more resources than a solo psychiatric practice. Pet. Op. Br. at 9.

This argument both contradicts the testimony and the ALJ’s decision. Ferren expressly testified that the standard of care is the same whatever the location where one practices. AR 911-12. Additionally, the ALJ mostly credited Ferren’s testimony but did not criticize Miles’ qualifications. AR 824. He also credited Miles’ opinion for Patient 1 that Abad-Santos did not depart from the standard of care by failing to monitor creatine, and that Abad-Santos did not depart from the standard of care by failing to have a written informed consent warning Patient 1 about the risks of dependence when taking Xanax. AR 825. The ALJ did not overlook Miles’ credible testimony for Patient 2; he simply agreed with Ferren.

b. Failure to Obtain Patient 2’s Medical Records and Consult with Her Other Providers

The ALJ credited Ferren’s opinion that Abad-Santos committed an extreme departure from the standard of care for Patient 2 when she relied solely on Patient 2’s report of her medications and co-morbidities without attempting to obtain records or consult her treating physicians. AR 825-26.

Abad-Santos notes that Miles testified that “in an ideal world, a treating psychiatrist would be able to communicate with other physician’s treating one’s patient. Unfortunately, this is not always possible. Yet, “collaboration with other treating physicians, here pain management physicians, is often difficult.” Miles opined that Abad-Santos “was making adequate assessment and monitoring of Patient 2’s condition, and that she could essentially rely on the patient’s other doctors to treat her other conditions.” Pet. Op. Br. at 9.

No doubt this often is true. However, Ferren opined that when a patient is of advanced age or reports medical co-morbidities, such as Patient 2, the standard of care requires a psychiatrist to contact the patient’s concurrent medical providers to verify self-reported medical conditions by obtaining medical records and consulting with these physicians whenever possible regarding the safety of the recommended psychotropic medication treatment plan. AR 455.

When she first presented to Abad-Santos, Patient 2 self-reported taking five medications: Celebrex, Cardizem, Atacand, hydrocodone, and Opana. Contrary to Miles’s contention that Patient 2 was articulate about her medical conditions, she reported taking Cardizem and Atacand, which are blood pressure medications. This suggested a cardiovascular medical condition that Patient 2 did not disclose. Additionally, Patient 2 reported that she had type II diabetes, for which many patients would be expected to be taking medication. Yet, Patient 2 did not report taking any diabetes medication. Nor was there any indication that Abad-Santos asked about such medication.

Abad-Santos had the name of Patient 2’s primary care physician but made no attempt to verify the information provided by Patient 2 regarding her medications and medical co-morbidities. Nor did Abad-Santos attempt to communicate with Patient 2’s cardiologist or pain management physician. AR 456, 911-12. Although Miles opined that it is not always feasible to communicate with a patients other physicians, he admitted that there was no evidence of an impediment to Abad-Santos doing so, or that she even tried. AR 1042.

The weight of the expert testimony shows that Abad-Santos’ failure to obtain medical records or consult other physicians for Patient 2 was an extreme departure from the standard of care.

The ALJ credited Ferren’s opinion that Abad-Santos committed an extreme departure from the standard of care for Patient 2 when she failed to conduct a baseline and ongoing medication reconciliation. AR 825-26.

Abat-Santos notes that Miles testified that medication reconciliation is needed when you first see the patient and thereafter only from time to time. Pet. Op. Br. at 9-10.

As the Medical Board argues (Opp. at 18-19), Ferren’s uncontroverted testimony is that the process of medication reconciliation is ongoing and includes the initial documentation of medications and reviewing each medication with the patient at the time of evaluation to determine if each medication is being taken and when the last dose was taken, adding any new or missing medications, and subtracting any incorrect or obsolete medications. AR 455. The purpose is to provide a current, accurate list of medications to inform a safe, appropriate treatment plan moving forward including both psychotropic and non-psychotropic medication. AR 455. Because a patient’s medications prescribed by another physician may change during the course of treatment, medication reconciliation is indicated at every appointment; there may be an impact on the psychiatrist's psychotropic medication treatment plan. AR 455.

Abad-Santos failed to contact other providers to verify Patient 2’s medications. In fact, she noted that Patient 2 was taking a new antihypertensive medication, but Patient 2 did not know the name of the medication. AR 456, 898-99. Despite this, Abat-Santos never contacted Patient 2’s treating providers to find out. AR 456.

Miles did not seriously contradict Ferren’s opinion. He merely opined that Abad-Santos was not required to conduct baseline examinations before prescribing psychotropic medication because Patient 2 was receiving treatment from other physicians and Abad-Santos could rely on the patient’s involvement with other physicians. AR 1040-41. However, he also acknowledged that the prescribing of psychotropic medications requires periodic monitoring of the patient’s mental and physical conditions, and that the failure to do so would be a departure from the standard of care. AR 1071. Abat-Santos did not monitor Patient’s ongoing medication.

The weight of the expert testimony shows that Abad-Santos’ failure to perform at least ongoing medication reconciliations was an extreme departure from the standard of care.

d. Prescribing Psychotropic Medications to Patient 2 Without Baseline Examination and Periodic Monitoring of Physical Health

The ALJ concluded that Abat-Santos committed an extreme departure from the standard of care when she prescribed psychotropic medications for Patient 2 without conducting baseline examinations and without periodically monitor for changes related to a known cardiovascular condition. AR 825-26.

Ferren credibly opined that the standard of care for prescribing psychotropic medication requires a psychiatric evaluation, a discussion with the patient of the diagnoses made, the development of a recommended treatment plan discussed with and agreed to by the patient, and informed consent following discussion of risks, benefits, and alternatives for each medication. AR 455. A psychiatric evaluation includes a review of medical records. AR 455. This ensures, in part, that medication is prescribed with considerations for contraindications such as an allergy or dosing modifications due to co-morbid medical conditions such as an impairment in liver functioning that might alter metabolism of medication. AR 455. The safe prescribing of psychotropic medications may require baseline and periodic screening examinations, including physical examination, vital signs, laboratory studies, and electrocardiogram. AR 455. Collaboration with primary care and medical specialty physicians may enable the psychiatrist to use examinations conducted in these other settings as part of their medical safety monitoring of psychotropic medications prescribed by the psychiatrist. AR 455.

Miles agreed that the prescribing of psychotropic medications requires periodic monitoring of the patient’s mental and physical conditions, and that the failure to do so would be a departure from the standard of care. AR 1071. Opp. at 17.

At Patient 2’s first visit, Abat-Santos prescribed Lexapro, Adderall, a stimulant and Schedule II controlled substance, and Klonopin, a benzodiazepine and Scheduled IV controlled substance, to be taken regularly. AR 455-56. She also prescribed Xanax, another benzodiazepine, on an as-needed basis. AR 456. Within a matter of two months, Petitioner increased Patient 2’s Adderall dosage by six-fold. AR 1190.

Abat-Santos knew that Patient 2 had significant medical co-morbidities, including a cardiovascular condition. AR 455-56. She also admitted that she was concerned that Patient 2 was taking her husband’s prescribed medication (Provigil). AR 1191-92. Yet, Abat-Santos prescribed controlled substances that could affect the cardiovascular system and increase the level of risk and danger to the patient without any evidence of a baseline examination. AR 456. Despite continuing to prescribe psychotropic medications, Abat-Santos never monitored Patient 2’s physical health – e.g., basic vital signs. AR 456.

Abat-Santos argues that Miles testified that she was not required to conduct a baseline examination before prescribing psychotropic medication because Patient 2 was receiving treatment from other physicians. AR 1041-42. Pet. Op. Br. at 10. However, Abat-Santos failed to contact other physicians so that she could rely on their examinations and monitoring of Patient 2’s physical condition.

The weight of the expert testimony shows that Abad-Santos prescribed psychotropic medications without evidence of a baseline examination and monitoring of Patient 2’s physical health and that this was an extreme departure from the standard of care.

e. Prescribing Short and Long-Acting Benzodiazepines to Patient 2 While Relying Solely on Psychoeducation of Risk

The ALJ found that Abad-Santos’ prescription of short and long-acting benzodiazepine was a simple departure of the standard of care. Abad-Santos’ prescription of these drugs to a patient taking opioids without collaborating with her other physicians was an extreme departure. AR 826.

Patient 2 disclosed to Abat-Santos in her first visit that she was taking two opioids: hydrocodone and extended release oxymorphone (Opana). AR 457. Abat-Santos prescribed both long-acting and short-acting benzodiazepines, clonazepam (Klonopin) and alprazolam (Xanax), respectively. AR 457-58. Ferren explained that the difference between a long-acting and short-acting benzodiazepine is how long the medication remains in the body. AR 903. Klonopin might be expected to last for 12 hours whereas Xanax might be bioavailable for two hours. AR 903. Prescribing the two benzodiazepines together has the potential for an additive effect. AR 458-59. In addition, because of Patient 2’s advanced age, her metabolism may be reduced compared to that of a younger person, and thus her body may retain the benzodiazepines for a longer period, necessitating lower doses of the medications. AR 457-58. Accordingly, the dose of benzodiazepine prescribed to a patient cannot be evaluated in a vacuum because the “a low dose might have a different bioavailability than the same dose might have a different bioavailability in a different patient, particularly an older patient.” AR 913. Opp. at 19-20.

Abat-Santos argues that she was not negligent because she prescribed reasonable low doses of Xanax and Valium. AR 1056-58. Pet. Op. Br. at 10. Miles opined that Abad-Santos was not guilty of simple negligence by prescribing low doses of alprazolam (Xanax), a short-acting benzodiazepine, and Valium, a long-acting benzodiazepine. AR 1056-58. Patient 2 had been on short-acting medication for a while for anxiety and sleep in very low doses. AR 1056. The longer-acting medication, Valium, was being prescribed for muscle spasm; Valium is an effective muscle relaxer. AR 1057. Patient 2 was given Valium twice a day whereas someone in her 30s might have it four times a day. AR 1057. The dosage of Valium was reasonable, and the Xanax was a low dose. AR 1058. The court accepts Miles’ opinion that combining low doses of Xanax and Valium may have been appropriate without further actions (which Ferren did not articulate).

However, Ferren also opined that there is a known risk of respiratory suppression in patients who are concurrently taking opioid medications and benzodiazepines. AR 457. Miles agreed that benzodiazepine needs to be prescribed cautiously with lower dosages when someone is on an opiate or an older patient. AR 1057. Ferren opined that, although counseling a patient about the increased risk of benzodiazepine medication prescribed in combination with an opioid is important, the standard of care is higher than simply providing psychoeducation. AR 457. The standard of care requires physician restraint in prescribing benzodiazepines in combination with opioids to minimize the risk of mortality. AR 457. Abat-Santos should have either exercised restraint in prescribing benzodiazepines to Patient 2 or collaborated with the other treating physicians. AR 459. Her failure to do so was an extreme departure from the standard of care.

Miles opined that Abad-Santos was not grossly negligent by prescribing benzodiazepines to Patient 2 by relying solely on psychoeducation because she prescribed benzodiazepines to Patient 2 with restraint. AR 1052. It is not reasonable to require a patient to choose between treatment for pain, or treatment for anxiety and muscle cramps, because the patient needed treatment for all these conditions. AR 1051-52.

The court agrees with the ALJ that the weight of expert testimony shows that Abad-Santos’ prescription of these drugs to a patient taking opioids without collaborating with her other physicians was an extreme departure. The undisputed expert testimony was that it is insufficient to rely on psychoeducation or low doses of Xanax and Valium. Contrary to Miles’ opinion, no one asked Patient 2 to choose between medications. Rather, Abad-Santos should have collaborated with Patient 2’s other physicians. Yet, she did not even attempt to contact Patient 2’s pain physician.

The ALJ concluded that Abad-Santos committed a simple departure from the standard of care by prescribing Vyvance and Cymbalta to Patient 1 without obtaining a baseline pulse and blood pressure and by failing to monitor those vital signs during the course of treatment. AR 824-25. Miles’ opinion was credited that she did not depart from the standard of care by failing to monitor creatine. AR 825. Miles’ opinion also was credited that Abad-Santos did not commit a simple departure from the standard of care by failing to have a written informed consent warning Patient 1 about the risks of dependence when taking Xanax. AR 825. However, Abad-Santos’ failure to document this advice was a simple departure from the standard of care. AR 825.

Perren testified that Abad-Santos prescribed Vyvanse (lisdexamfetamine), a stimulant medication, which is a Schedule II controlled substance used to treat attention deficit hyperactivity disorder. AR 880. Cymbalta (duloxetine) is a psychotropic medication for which a prescription is required. When prescribing Vyvanse and Cymbalta to a patient, the standard of care requires a physician to obtain the patient’s baseline pulse and blood pressure, and periodically monitor those vital signs for patient safety. AR 453, 888-89. Abad-Santos never obtained Patient 1’s blood pressure or pulse. AR 453, 888-89. There should also have been a baseline cardiac evaluation for both drugs. AR 885, 887. Her failures were a simple departure from the standard of care. AR 453, 889.

Additionally, because of the risk of psychological and/or physiological dependence on Xanax, Perren opined that it is important to explain to the patient the risks, benefits, and alternatives to taking this medication. AR 451-52, 885-87. Miles agreed that failing to inform a patient about the risk of developing dependence on Xanax would fall below the standard of care. AR 1066. Abad-Santos did not document that she warned Patient 1 about the risk of developing dependence on Xanax. AR 451-52, 886. This was a simple departure from the standard of care. AR 887.

Abat-Santos argues that Miles testified that she was not negligent because the standard generally requires that a patient’s pulse and blood pressure be taken before starting a medication and from time to time afterwards. AR 1037. Pet. Op. Br. at 10.

Miles did not testify that Abat-Santos was not negligent. Rather, he testified that, when prescribing Vyvanse and Cymbalta to a patient, the standard of care requires a physician to obtain the patient’s baseline pulse and blood pressure, and periodically monitor those vital signs for patient safety. AR 1037. Abat-Santos did neither for Patient 1 (AR 1169-70), and it is undisputed that she was negligent.

The weight of the evidence shows that Abat-Santos committed simple departures from the standard of care by prescribing drugs to Patient 1 without a baseline examination of pulse and blood pressure and by failing to monitor those vital signs during the course of treatment and by failing to document her discussion about the risks of dependence on Xanax.

Abad-Santos argues that Miles testified that her documentation error in describing Patient 1 as a “young white female” and elsewhere as a “Korean American female” was not below the standard of care because it was a typographical mistake that has no clinical relevance 99 percent of the time. AR 1038-39. Pet. Op. Br. at 10.

True, but Abat-Santos failed to document advice about the risk of dependence on Xanax in Patient 1’s medical record. AR 451-52. Abat-Santos also admitted there is no documentation in Patient 2's charts of her efforts to contact other treating physicians. AR 1184, 1191, 1205. She further offered into evidence copies of emails and text messages from Patient 2 that she acknowledged should have been placed in Patient 2’s medical record. AR 1199.

The weight of the evidence shows that Abat-Santos failed to maintain adequate and accurate medical records in violation of Business and Professions Code sections 2266.

The Medical Board’s decision is supported by substantial evidence and the Petition is denied. The Medical Board’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner Abad-Santos’ 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 June 27, 2024 at 9:30 a.m.

[1] As Abad-Santos’s briefs rely solely on her expert’s testimony, the court will refer to Abad-Santos’ testimony only in footnotes.

[2] The court will refer to Ferren’s report as well as his testimony.

[3] Abad-Santos acknowledged that she never obtained Patient 1’s pulse or blood pressure before prescribing Vyvanse and Cymbalta. AR 1169-70.

[4] Abad-Santos increased Patient 2’s Adderall dosage by six-fold in two months. AR 1190.

[5] For convenience, the court will refer to the ALJ’s recommended decision rather than the Medical Board’s decision adopting it.