Bd. Registration in Medicine v. Ogoke, MD RM-09-665
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Division of Administrative Law Appeals
One Congress Street, 11th Floor
Boston, MA -2114
www.mass.gov/dala
Board of Registration in Medicine,
Petitioner
v. Docket No. RM-09-665
Dated: February 24, 2017
Bentley A. Ogoke, M.D.,
Respondent
Appearance for Petitioner:
John Costello, Esq.
Gloria Brooks, Esq.
Board of Registration in Medicine
200 Harvard Mill Square, Suite 330
Wakefield, MA 01880
Appearance for Respondent:
Paul Cirel, Esq.
Ingrid Martin, Esq.
Collera, LLP
100 High Street
Boston, MA
Administrative Magistrate:
Sarah H. Luick, Esq.
SUMMARY OF RECOMMENDED DECISION
The Board of Registration in Medicine failed to prove most of the charges against Dr. Ogoke for his treatments of the patients addressed in the Statement of Allegations - patients A, B, C, E, F, G, H, I, J, K, L, M, N and O. The charges included Dr. Ogoke: yelling at patients and staff; maintaining a messy office; not giving physical examinations before prescribing opioid medications; and, not enforcing the narcotics agreement his patients signed to use prescriptions properly and not to use illicit drugs. The Statement of Allegations also included charges specific to his treatment of each of these patients that involved: failing to timely provide requested medical records; over-prescribing opioid medication and prescribing opioids for too long; performing unnecessarily risky interventional procedures; not maintaining adequate medical records on these patients by not including all the details of each prescription written at a patient’s visit within a visit report; not adequately discussing within the visit reports why high dose opioid medications were prescribed and maintained for the patient; and, not adequately discussing within the visit reports a patient’s red flag conduct such as drug-seeking behavior, use of illicit drugs, and failing to take prescribed medications properly.
There was no proof that Dr. Ogoke intentionally ignored the pertinent standards of care, or was acting fraudulently in administering patient care, but there were times when he failed to adequately satisfy a standard of care for particular patients based on expert opinion.
· There was sufficient proof that Dr. Ogoke violated the standard of care by his failure to uncover the many UDS results that Pt. G had that were positive for Marijuana while he was prescribing her high opioid dose medications.
· There was sufficient proof to show that Dr. Ogoke failed to timely send Pt. H his medical records after Pt. H stopped his care with Dr. Ogoke.
· There was sufficient proof that Dr. Ogoke failed to adequately monitor Pt. J, who had tested positive on more than one urine drug screen test for Cocaine and Marijuana, and who continued to be prescribed high dose opioids even after Dr. Ogoke learned of these test results.
· There was sufficient proof that Dr. Ogoke failed to adequately explain in his visit reports Pt. M’s conduct during large gaps in time when Pt. M did not meet his scheduled appointments and treatments, and why Dr. Ogoke reached the decisions he did on prescribing medications and determining other treatments when Pt. M returned to his care.
RECOMMENDED DECISION
On October 7, 2009, the Board of Registration in Medicine (BORM) filed a Statement of Allegations against the Respondent, Dr. Bentley A. Ogoke, along with an Order of Reference to the Division of Administrative Law Appeals (DALA) to hold a hearing on the Statement of Allegations. Also filed with DALA was an Order to Use Psuedonyms for the names of patients addressed by the Statement of Allegations, and the Voluntary Agreement Not to Practice Medicine entered into by Dr. Ogoke with the BORM. The Statement of Allegations ordered Dr. Ogoke to show cause why he should not be disciplined for his conduct in regard to the individual care he gave each of the patients addressed in the Statement of Allegations - patients A, B, C, E, F, G, H, I, J, K, L, M, N and O. Although charges concerning Patient P are included within the Statement of Allegations, the BORM did not present any evidence about Patient P, and the parties agree that charges about Patient P are not to be considered. The Statement of Allegations also charges Dr. Ogoke with violating the standard of care by having routinely: mistreated his patients and his staff by yelling at them; maintained a messy office; had patients wait for overly long times to see him; failed to examine patients before prescribing opioid medication; and, failed to enforce the narcotics agreement that his patients signed. The Respondent filed his Answer to the Statement of Allegations on November 16, 2009, denying all the charges.
Three pre-hearing conferences were held after the Order of Reference to the Division of Administrative Law Appeals (DALA) was received, that led to the parties engaging in a long period of voluntary discovery until the parties were ready for hearing. Just prior to the start of the hearing, the parties filed witness lists and a few motions. The hearing was held on the following eighteen days: January 7, 10, 11, 18, 19, 20 and 21, 2011; February 18, 2011; March 28 and 29, 2011; April 1, 6, 14, 19, 20, 21 and 29, 2011; and, June 2, 2011, the last day of hearing. All the days of hearing were transcribed. The hearing was held at the offices of the Division of Administrative Law Appeals when it was located at 98 North Washington Street, Boston, MA 02114.
Exhibits
Various documents are in evidence. (Exhibits 1 – 113.) Among the Exhibits is a disc, Exhibit 43, that contains Dr. Ogoke’s medical records concerning the patients addressed in the Statement of Allegations (other than patient P) that the BORM copied into the disc. The breakdown per patient (Pt.) within Exhibit 43 is: Pt. A, bate nos. 1-123; Pt. B, bate nos. 124-494; Pt. C, bate nos. 495-680; Pt. E, bate nos. 681-1129; Pt. F, bate nos. 1130-1869; Pt. G, bate nos. 1870-2425; Pt. H, bate nos. 2426-2605; Pt. I, bate nos. 2606-2763; Pt. J, bate nos. 2764-3335; Pt. K, bate nos. 3336-3542; Pt. L, bate nos. 3543-3733; Pt. M, bate nos. 3734-3863; Pt. N, bate nos. 3864-4319; and, Pt. O, bate nos. 4320-4650. There are a number of Exhibits that are paper copies of documents also contained within Exhibit 43. The Exhibits include paper copies of these patients’ medical records kept by Dr. Ogoke that were not bate stamped and contained within Exhibit 43. The Respondent did not dispute the authenticity of the medical records. Rather, the Respondent disputed that the order of the medical records as set-forth in Exhibit 43 were copied by the BORM in the same order that Dr. Ogoke maintained each patient’s medical records at his office. (Transcript,Vol. I, 39.)[1] Some of the fourteen patients listed in the Statement of Allegations filed written complaints with the BORM concerning their care with Dr. Ogoke. Not all the patients who filed complaints with the BORM testified at the hearing. These were admitted into evidence over the objection of the Respondent (Exhibit 83). The BORM’s investigative interview with Dr. Ogoke was admitted into evidence (Exhibit 84). Various guidelines and policies were admitted into evidence as having bearing on the determinations of whether or not Dr. Ogoke had violated any standards of care.
The Statement of Allegations is marked Exhibit A. The Order of Reference to DALA, the Order to Use Pseudonyms, and the Voluntary Agreement Not to Practice are marked together as Exhibit B. The Respondent’s Answer is marked Exhibit C. The BORM’s written Motion in Limine, addressed at the first day of hearing, along with the Respondent’s written response are marked Exhibit D.
Witnesses
Testifying at the hearing were the following witnesses presented by the BORM: Dr.
Ogogke; Pt. F; Pt. H’s mother; Pt. H’s attorney, Thomas O’Grady, Esq.; Pt. I; Pt. J; and, the BORM’s expert witness, Paul Satwicz, M.D. The Respondent presented the testimony of Maria Pacitti and Georgia Dawes, former employees of Dr. Ogoke. The Respondent also presented the testimony of Patrick Benvenuto and Jacquelyn Demers, former patients of Dr. Ogoke who addressed only the office conditions and Dr. Ogoke’s demeanor that they encountered and not the propriety of their course of care with Dr. Ogoke. The Respondent presented the testimony of Philip Beattie, Jr., the BORM’s investigator on this case, and the Respondent’s expert witness, Andrea Trescot, M.D. Dr. Ogoke testified again on his own behalf.
Motions
The BORM had filed a motion to change the venue of the hearing to the Springfield Courthouse to make it more convenient and more of a possibility for the patients involved in the Statement of Allegations to testify as they were all located not far from the Springfield area. This motion was denied, but, in denying this motion, I allowed the parties to move to do a deposition of a patient unable to come to Boston to testify, to be placed in evidence in lieu of the patient’s testimony at the hearing. This did not happen.
The BORM filed a Motion in Limine to exclude the Respondent’s witnesses, or in the alternative, some of the Respondent’s witnesses, including its expert witness. In addition to the parties written arguments on the Motion in Limine, the parties both made arguments on the record at the first day of hearing. The motion was fully denied.
At the first day of hearing, the Board moved to sequester witnesses. The ruling made was to sequester any patient who testified along with Pt. H’s mother and Pt. H’s attorney, Thomas O’Grady, Esq., who testified concerning an effort to secure Pt. H’s medical records from Dr. Ogoke. At the first day of hearing, the Respondent moved to limit the medical records in
evidence to only the parties who testified at the hearing. This motion was denied with the
objection going to weight on the quality of proof.
During the eighteen days of hearing, there were various times when the parties made
further motions, and objections to the admission of certain testimony or of further Exhibits.
Rulings were made on the record.
Briefs
The parties filed briefs by April 3, 2012 when the record closed.
BORM CLAIMS AGAINST BENTLEY OGOKE, MD
The BORM’s charges against Dr. Ogoke as set forth in the Statement of Allegations include engaging in misconduct in violation of the BORM’s Disruptive Physician Behavior Policy, adopted in June 2001 (Ex. 19), including yelling at patients and staff, maintaining an overly crowded and messy office, and patients sometimes having to wait hours to see him. The Statement of Allegations also charges that Dr. Ogoke provided substandard care to the fourteen patients listed for which evidence was presented: Patients A, B, C, (no Patient D), E, F, G, H, I, J, K, L, M, N & O.[2] Dr. Ogoke’s specific conduct with each of these fourteen patients is addressed within the sections of this Recommended Decision about each patient. Those sections follow this section concerning the more general charges about how Dr. Ogoke conducted his pain management practice, his protocols, his monitoring of patients on long-term opioid therapy, his use of multi-level bilateral lumbar spine injections within one interventional procedure, his use of a narcotics agreement, his use of urine drug screen testing, his medical recordkeeping practices, and the differences in opinions on practicing a pain management specialty among Dr. Ogoke, Dr. Trescot and Dr. Satwicz. The findings of fact made in this section of the Recommended Decision are followed by a discussion with recommendations concerning the charges contained in the Statement of Allegations.
Findings of Fact
The following findings of fact address these general areas of alleged substandard care. The findings are based on the documentary and testimonial evidence presented, and the reasonable inferences drawn therefrom. The findings also address the opinions of Dr. Ogoke, Dr. Trescot and Dr. Satwicz on overall required conduct, including practice guidelines, recordkeeping practices, and prescribing practices with narcotics for long-term use.
Dr. Ogoke’s Medical Training Background
1. Bentley Ogoke, M.D. is an interventional pain management specialist treating
patients with acute but also with chronic pain. He was first licensed to practice in Massachusetts in 1994. He is certified by the American Board of Anesthesiology and has the subspecialty certification in pain management with the American Board of Interventional Pain Physicians. Dr. Ogoke is active in this newer field of pain management medicine and specifically, interventional treatments. This field started to emerge and grow around 2000. Dr. Ogoke is a founding member of the American Society of Interventional Pain Physicians (ASIPP). The practice of interventional pain management has been defined by the American Medical Association as the diagnosis and treatment of pain-related disorders primarily using interventional techniques to manage subacute chronic persistent and intractable pain. Interventional techniques include doing injections of medications into the lumbar, thoracic and cervical spines. During the time period Dr. Ogoke treated the fourteen patients listed in the Statement of Allegations, doing these techniques involved use of the fluoroscopy machine by the skilled interventional specialist pain management physician to guide the injection to the targeted spinal location. Interventional procedures also include simpler injections into the knees or shoulder areas. (Statement of Allegations, Biographical Information & Answer. Ex. 84. Testimony of Dr. Ogoke, Vol. IV, 788-789; 791-792 & Dr. Trescot, Vol. XIV, 2630, 2646-2647, 2652-2653, 2659-2660.)