iJw ~QLa/ - The Patient Safety League4patientsafety.org/documents/Mardones, John A 2015-07-27.pdf2....

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the First Amended) Accusation Against: )

JOHN A. MARDONES, M.D.

Physician's and Surgeon's Certificate No. A 41581

Respondent

) ) ) ) ) ) ) )

Case No. 09-2012-227539

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DECISION

The attached Stipulated Settlement and Disciplinary Order is hereby adopted as the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California.

This Decision shall become effective at 5:00p.m. on August 26, 2015.

IT IS SO ORDERED: July 27, 2015.

MEDICAL BOARD OF CALIFORNIA

iJw ~QLa/ MJ Dev Gnanadev, .D., Chair Panel B

KAMALA D. HARRIS Attorney General of California

2 THOMAS S. LAZAR Supervising Deputy Attorney General

3 KAROLYN M. WESTFALL Deputy Attorney General

4 State Bar No. 234540 600 West Broadway, Suite 1800

5 San Diego, CA 92101 P.O. Box 85266

6 San Diego, CA 92186-5266 Telephone: (619)645-3121

7 Facsimile: (619)645-2061

8 Attorneys for Complainant

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BEFORE THE

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MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS

STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against:

JOHN MARDONES, M.D. P.O. Box 2527 Palm Springs, CA 92263-2527

Physician's and Surgeon's Certificate No. A41581,

Respondent.

Case No. 09-2012-227539 OAH No. 2014080809

STIPULATED SETTLEMENT AND DISCIPLINARY ORDER

20 IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

21 entitled proceedings that the following matters are true:

22 PARTIES

23 1. Kimberly Kirchmeyer (complainant) is the Executive Director of the Medical Board

24 of California (Board). She brought this action solely in her official capacity as such and is

25 represented in this matter by Kamala D. Harris, Attorney General of the State of California, by

26 Karolyn M. Westfall, Deputy Attorney General.

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-2012-227539)

2. Respondent John Mardones, M.D. (respondent) is represented in this proceeding by

2 Gary Wittenberg, Esq., whose address is 1901 Avenue of the Stars, Suite 1750, Los Angeles,

3 CA 90067.

4 3. On or about March 18, 1985, the Board issued Physician's and Surgeon's Certificate

5 No. A41581 to respondent. The Physician's and Surgeon's Certificate was in full force and effect

6 at all times relevant to the charges and allegations brought in First Amended Accusation No.

7 09-2012-227539 and will expire on June 30, 2016, unless renewed.

8 JURISDICTION

9 4. On July 3, 2014, Accusation No. 09-2012-227539 was filed against respondent before

10 the Board. A true and correct copy of Accusation No. 09-2012-227539, and all other statutorily

11 required documents, were properly served on respondent on July 3, 2014. Respondent timely

12 filed his Notice of Defense contesting the Accusation.

13 5. On April 17,2015, First Amended Accusation No. 09-2012-227539 was filed before

14 the Board and is currently pending against respondent. A true and correct copy of First Amended

15 Accusation No. 09-2012-227539, along with a true and correct copy of a Supplemental Statement

16 to Respondent, were properly served on respondent on April 17,2015. A true and correct copy of

17 First Amended Accusation No. 09-2012-227539 is attached hereto as Exhibit A and incorporated

18 by reference as if fully set forth herein.

19 ADVISEMENT AND WAIVERS

20 6. Respondent has carefully read, fully discussed with counsel, and fully understands the

21 charges and allegations in First Amended Accusation No. 09-2012-227539. Respondent has also

22 carefully read, fully discussed with counsel, and fully understands the effects of this Stipulated

23 Settlement and Disciplinary Order.

24 7. Respondent is fully aware of his legal rights in this matter, including the right to a

25 hearing on the charges and allegations in First Amended Accusation 09-20 12-227539; the right to

26 confront and cross-examine the witnesses against him; the right to present evidence and to testify

27 on his own behalf; the right to the issuance of subpoenas to compel the attendance of witnesses

28 and the production of documents; the right to reconsideration and court review of an adverse

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decision; and all other rights accorded by the California Administrative Procedure Act and other

applicable laws.

8. Having the benefit of counsel, respondent hereby voluntarily, knowingly, and

intelligently waives and gives up each and every right set forth above.

CULPABILITY

9. With the exception of paragraph 1 O(a) through 1 O(h), respondent admits the complete

7 truth and accuracy of each and every charge and allegation in First Amended Accusation No.

8 09-2012-227539 and agrees that he has thereby subjected his Physician's and Surgeon's

9 Certificate No. A41581 to disciplinary action.

10 10. Respondent further admits that, at an administrative hearing, complainant could

11 establish a prima .facie case with respect to the charges and allegations contained in paragraph

12 10(a) through 10(h) in First Amended Accusation No. 09-2012-227539 and agrees that he has

13 thereby subjected his Physician's and Surgeon's Certificate No. A41581 to disciplinary action.

14 11. Respondent further agrees that if he ever petitions for modification or early

15 termination of probation, or if an accusation and/or petition to revoke probation is filed against

16 him before the Medical Board of California, all of the charges and allegations contained in First

17 Amended Accusation No. 09-2012-227539 shall be deemed true, correct, and fully admitted by

18 respondent for purposes of any such proceeding or any other licensing proceeding involving

19 respondent in the State of California or elsewhere.

20 12. Respondent agrees that his Physician's and Surgeon's Certificate No. A41581 is

21 subject to discipline and he agrees to be bound by the Board's imposition of discipline as set forth

22 in the Disciplinary Order below.

23 CONTINGENCY

24 13. This Stipulated Settlement and Disciplinary Order shall be subject to approval of the

25 Board. The parties agree that this Stipulated Settlement and Disciplinary Order shall be

26 submitted to the Board for its consideration in the above-entitled matter and, further, that the

27 Board shall have a reasonable period of time in which to consider and act on this Stipulated

28 Settlement and Disciplinary Order after receiving it. By signing this stipulation, respondent fully

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understands and agrees that he may not withdraw his agreement or seek to rescind this stipulation

2 prior to the time the Board considers and acts upon it.

3 14. The parties agree that this Stipulated Settlement and Disciplinary Order shall be null

4 and void and not binding upon the parties unless approved and adopted by the Board, except for

5 this paragraph, which shall remain in full force and effect. Respondent fully understands and

6 agrees that in deciding whether or not to approve and adopt this Stipulated Settlement and

7 Disciplinary Order, the Board may receive oral and written communications from its staff and/or

8 the Attorney General's office. Communications pursuant to this paragraph shall not disqualify

9 the Board, any member thereof, and/or any other person from future participation in this or any

10 other matter affecting or involving respondent. In the event that the Board, in its discretion, does

11 not approve and adopt this Stipulated Settlement and Disciplinary Order, with the exception of

12 this paragraph, it shall not become effective, shall be of no evidentiary value whatsoever, and

13 shall not be relied upon or introduced in any disciplinary action by either party hereto.

14 Respondent further agrees that should the Board reject this Stipulated Settlement and Disciplinary

15 Order for any reason, respondent will assert no claim that the Board, or any member thereof, was

16 prejudiced by its/his/her review, discussion and/or consideration of this Stipulated Settlement and

17 Disciplinary Order or of any matter or matters related hereto.

18 ADDITIONAL PROVISIONS

19 15. This Stipulated Settlement and Disciplinary Order is intended by the parties herein to

20 be an integrated writing representing the complete, final and exclusive embodiment of the

21 agreements of the parties in the above-entitled matter.

22 16. The parties agree that copies of this Stipulated Settlement and Disciplinary Order,

23 including copies of the signatures of the parties, may be used in lieu of original documents and

24 signatures and, further, that such copies and signatures shall have the same force and effect as

25 originals.

26 17. In consideration of the foregoing admissions and stipulations, the parties agree the

27 Board may, without further notice to or opportunity to be heard by respondent, issue and enter the

28 following Disciplinary Order:

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1 DISCIPLINARY ORDER

2 IT IS HEREBY ORDERED that Physician's and Surgeon's Certificate No. A41581 issued

3 to respondent John Mardones, M.D., is revoked. However, the revocation is stayed and

4 respondent is placed on probation for three (3) years from the effective date of this Decision on

5 the following terms and conditions:

6 1. ALCOHOL - ABSTAIN FROM USE. Respondent shall abstain completely from the

7 use of products or beverages containing alcohol.

8 If respondent has a confirmed positive biological fluid test for alcohol, respondent shall

9 receive a notification from the Board or its designee to immediately cease the practice of

10 medicine. Respondent shall not resume the practice of medicine until final decision on an

11 accusation and/or a petition to revoke probation. An accusation and/or petition to revoke

12 probation shall be filed by the Board within 15 days of the notification to cease practice. If

13 respondent requests a hearing on the accusation and/or petition to revoke probation, the Board

14 shall provide respondent with a hearing within 30 days of the request, unless respondent stipulates

15 to a later hearing. A decision shall be received from the Administrative Law Judge or the Board

16 within 15 days unless good cause can be shown for the delay. The cessation of practice shall not

17 apply to the reduction of the probationary time period.

18 If the Board does not file an accusation or petition to revoke probation within 15 days of the

19 issuance of the notification to cease practice or does not provide respondent with a hearing within

20 30 days of a such a request, the notification of cease practice shall be dissolved.

21 2. BIOLOGICAL FLUID TESTING. Respondent shall immediately submit to

22 biological fluid testing, at respondent's expense, upon request of the Board or its designee.

23 "Biological fluid testing" may include, but is not limited to, urine, blood, breathalyzer, hair

24 follicle testing, or similar drug screening approved by the Board or its designee. Prior to

25 practicing medicine, respondent shall contract with a laboratory or service approved in advance

26 by the Board or its designee that will conduct random, unannounced, observed, biological fluid

27 testing. The contract shall require results of the tests to be transmitted by the laboratory or

28 service directly to the Board or its designee within four hours of the results becoming available.

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Respondent shall maintain this laboratory or service contract during the period of probation.

2 A certified copy of any laboratory test result may be received in evidence in any

3 proceedings between the Board and respondent.

4 If respondent fails to cooperate in a random biological fluid testing program within the

5 specified time frame, respondent shall receive a notification from the Board or its designee to

6 immediately cease the practice of medicine. Respondent shall not resume the practice of

7 medicine until final decision on an accusation and/or a petition to revoke probation. An

8 accusation and/or petition to revoke probation shall be filed by the Board within 15 days of the

9 notification to cease practice. If respondent requests a hearing on the accusation and/or petition

10 to revoke probation, the Board shall provide respondent with a hearing within 30 days ofthe

11 request, unless respondent stipulates to a later hearing. A decision shall be received from the

12 Administrative Law Judge or the Board within 15 days unless good cause can be shown for the

13 delay. The cessation of practice shall not apply to the reduction of the probationary time period.

14 If the Board does not file an accusation or petition to revoke probation within 15 days of the

15 issuance of the notification to cease practice or does not provide respondent with a hearing within

16 30 days of a such a request, the notification of cease practice shall be dissolved.

17 3. PROFESSIONALISM PROGRAM (ETHICS COURSE). Within 60 calendar days of

18 the effective date of this Decision, respondent shall enroll in a professionalism program, that

19 meets the requirements of Title 16, California Code of Regulations (CCR) section 1358.

20 Respondent shall participate in and successfully complete that program. Respondent shall

21 provide any information and documents that the program may deem pertinent. Respondent shall

22 successfully complete the classroom component of the program not later than six (6) months after

23 respondent's initial enrollment, and the longitudinal component of the program not later than the

24 time specified by the program, but no later than one ( 1) year after attending the classroom

25 component. The professionalism program shall be at respondent's expense and shall be in

26 addition to the Continuing Medical Education (CME) requirements for renewal of licensure.

27 A professionalism program taken after the acts that gave rise to the charges in the

28 Accusation, but prior to the effective date of the Decision may, in the sole discretion of the Board

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or its designee, be accepted towards the fulfillment of this condition if the program would have

2 been approved by the Board or its designee had the program been taken after the effective date of

3 this Decision.

4 Respondent shall submit a certification of successful completion to the Board or its

5 designee not later than 15 calendar days after successfully completing the program or not later

6 than 15 calendar days after the effective date of the Decision, whichever is later.

7 4. PSYCHIATRIC EVALUATION. Within 30 calendar days of the effective date of

8 this Decision, and on whatever periodic basis thereafter may be required by the Board or its

9 designee, respondent shall undergo and complete a psychiatric evaluation (and psychological

10 testing, if deemed necessary) by a Board-appointed board certified psychiatrist, who shall

11 consider any information provided by the Board or designee and any other information the

12 psychiatrist deems relevant, and shall furnish a written evaluation report to the Board or its

13 designee. Psychiatric evaluations conducted prior to the effective date of the Decision shall not

14 be accepted towards the fulfillment of this requirement. Respondent shall pay the cost of all

15 psychiatric evaluations and psychological testing.

16 Respondent shall comply with all restrictions or conditions recommended by the evaluating

17 psychiatrist within 15 calendar days after being notified by the Board or its designee.

18 5. MEDICAL EVALUATION AND TREATMENT. Within 30 calendar days ofthe

19 effective date of this Decision, and on a periodic basis thereafter as may be required by the Board

20 or its designee, respondent shall undergo a medical evaluation by a Board-appointed physician

21 who shall consider any information provided by the Board or designee and any other information

22 the evaluating physician deems relevant and shall furnish a medical report to the Board or its

23 designee. Respondent shall provide the evaluating physician any information and documentation

24 that the evaluating physician may deem pertinent.

25 Following the evaluation, respondent shall comply with all restrictions or conditions

26 recommended by the evaluating physician within 15 calendar days after being notified by the

27 Board or its designee. If respondent is required by the Board or its designee to undergo medical

28 treatment, respondent shall within 30 calendar days of the requirement notice, submit to the

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Board or its designee for prior approval the name and qualifications of a California licensed

2 treating physician of respondent's choice. Upon approval of the treating physician, respondent

3 shall within 15 calendar days undertake medical treatment and shall continue such treatment until

4 further notice from the Board or its designee.

5 The treating physician shall consider any information provided by the Board or its designee

6 or any other information the treating physician may deem pertinent prior to commencement of

7 treatment. Respondent shall have the treating physician submit quarterly reports to the Board or

8 its designee indicating whether or not respondent is capable of practicing medicine safely.

9 Respondent shall provide the Board or its designee with any and all medical records pertaining to

10 treatment, the Board or its designee deems necessary.

11 If, prior to the completion of probation, Respondent is found to be physically incapable of

12 resuming the practice of medicine without restrictions, the Board shall retain continuing

13 jurisdiction over respondent's license and the period of probation shall be extended until the

14 Board determines that respondent is physically capable of resuming the practice of medicine

15 without restrictions. Respondent shall pay the cost of the medical evaluation(s) and treatment.

16 6. NOTIFICATION. Within seven (7) days ofthe effective date ofthis Decision,

17 respondent shall provide a true copy of this Decision and First Amended Accusation No.

18 09-2012-227539 to the Chief of Staff or the Chief Executive Officer at every hospital where

19 privileges or membership are extended to respondent, at any other facility where respondent

20 engages in the practice of medicine, including all physician and locum tenens registries or other

21 similar agencies, and to the Chief Executive Officer at every insurance carrier which extends

22 malpractice insurance coverage to respondent. Respondent shall submit proof of compliance to

23 the Board or its designee within 15 calendar days.

24 This condition shall apply to any change(s) in hospitals, other facilities or insurance carrier.

25 7. SUPERVISION OF PHYSICIAN ASSISTANTS. During probation, respondent is

26 prohibited from supervising physician assistants.

27 8. OBEY ALL LAWS. Respondent shall obey all federal, state and local laws, all rules

28 governing the practice of medicine in California and remain in full compliance with any court

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STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (09-20 12-227539)

ordered criminal probation, payments, and other orders.

2 9. QUARTERLY DECLARATIONS. Respondent shall submit quarterly declarations

3 under penalty of perjury on forms provided by the Board, stating whether there has been

4 compliance with all the conditions of probation.

5 Respondent shall submit quarterly declarations not later than 10 calendar days after the end

6 of the preceding quarter.

7 10. GENERAL PROBATION REQUIREMENTS.

8 Compliance with Probation Unit

9 Respondent shall comply with the Board's probation unit and all terms and conditions of

10 this Decision.

11 Address Changes

12 Respondent shall, at all times, keep the Board informed of respondent's business and

13 residence addresses, email address (if available), and telephone number. Changes of such

14 addresses shall be immediately communicated in writing to the Board or its designee. Under no

15 circumstances shall a post office box serve as an address of record, except as allowed by Business

16 and Professions Code section 2021 (b).

17 Place of Practice

18 Respondent shall not engage in the practice of medicine in respondent's or patient's place

19 of residence, unless the patient resides in a skilled nursing facility or other similar licensed

20 facility.

21 License Renewal

22 Respondent shall maintain a current and renewed California physician's and surgeon's

23 license.

24 Travel or Residence Outside California

25 Respondent shall immediately inform the Board or its designee, in writing, of travel to any

26 areas outside the jurisdiction of California which lasts, or is contemplated to last, more than thirty

27 (30) calendar days.

28 In the event respondent should leave the State of California to reside or to practice,

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respondent shall notify the Board or its designee in writing 30 calendar days prior to the dates of

2 departure and return.

3 11. INTERVIEW WITH THE BOARD OR ITS DESIGNEE. Respondent shall be

4 available in person upon request for interviews either at respondent's place of business or at the

5 probation unit office, with or without prior notice throughout the term of probation.

6 12. NON-PRACTICE WHILE ON PROBATION. Respondent shall notify the Board or

7 its designee in writing within 15 calendar days of any periods of non-practice lasting more than

8 30 calendar days and within 15 calendar days of respondent's return to practice. Non-practice is

9 defined as any period of time respondent is not practicing medicine in California as defined in

10 Business and Professions Code sections 2051 and 2052 for at least 40 hours in a calendar month

11 in direct patient care, clinical activity or teaching, or other activity as approved by the Board. All

12 time spent in an intensive training program which has been approved by the Board or its designee

13 shall not be considered non-practice. Practicing medicine in another state of the United States or

14 Federal jurisdiction while on probation with the medical licensing authority of that state or

15 jurisdiction shall not be considered non-practice. A Board-ordered suspension of practice shall

16 not be considered as a period of non-practice.

17 In the event respondent's period of non-practice while on probation exceeds 18 calendar

18 months, respondent shall successfully complete a clinical training program that meets the criteria

19 of Condition 18 of the current version of the Board's "Manual of Model Disciplinary Orders and

20 Disciplinary Guidelines" prior to resuming the practice of medicine.

21 Respondent's period of non-practice while on probation shall not exceed two (2) years.

22 Periods of non-practice will not apply to the reduction of the probationary term.

23 Periods of non-practice will relieve respondent of the responsibility to comply with the

24 probationary terms and conditions with the exception of this condition and the following terms

25 and conditions of probation: Obey All Laws; and General Probation Requirements.

26 13. COMPLETION OF PROBATION. Respondent shall comply with all financial

27 obligations (e.g., restitution, probation costs) not later than 120 calendar days prior to the

28 completion of probation. Upon successful completion ofprobation, respondent's certificate shall

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be fully restored.

2 14. VIOLATION OF PROBATION. Failure to fully comply with any term or condition

3 of probation is a violation of probation. If respondent violates probation in any respect, the

4 Board, after giving respondent notice and the opportunity to be heard, may revoke probation and

5 carry out the disciplinary order that was stayed. If an Accusation, or Petition to Revoke

6 Probation, or an Interim Suspension Order is filed against respondent during probation, the Board

7 shall have continuing jurisdiction until the matter is final, and the period of probation shall be

8 extended until the matter is final.

9 I5. LICENSE SURRENDER. Following the effective date of this Decision, if

10 respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy

II the terms and conditions of probation, respondent may request to surrender his or her license.

I2 The Board reserves the right to evaluate respondent's request and to exercise its discretion in

I3 determining whether or not to grant the request, or to take any other action deemed appropriate

14 and reasonable under the circumstances. Upon formal acceptance of the surrender, respondent

I5 shall within I5 calendar days deliver respondent's wallet and wall certificate to the Board or its

I6 designee and respondent shall no longer practice medicine. Respondent will no longer be subject

17 to the terms and conditions of probation. If respondent re-applies for a medical license, the

I8 application shall be treated as a petition for reinstatement of a revoked certificate.

I9 16. PROBATION MONITORING COSTS. Respondent shall pay the costs associated

20 with probation monitoring each and every year of probation, as designated by the Board, which

2I may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of

22 California and delivered to the Board or its designee no later than January 31 of each calendar

23 year.

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e5Jl7/2015 13:es 3162293561 BARANOV & WITTENBERG PAGE 01/01

ACCEPTANCE

2 r have c<Jrefully read the above Stipulated Settlement and Disciplinary Order !ltld ha,e fulty

3 di~cusscd it witJ1 my uttomcy, G<~ry Wittenberg, Bsq. 1 fully understand tbe stipulation and the

4 efTecr it willlnlve on my Physicil.lfl- s am1 Surgeon's Cmtiftcalc No. A415R I. Tenter into this

5 Stipulated Settlement and DisC1p!inary Orrler voluntarily, knowingly, and inteJiigently, and agree

6 to be bound by the Decision cmd Order of the Medical Board of California.

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DATED:

JOHN M~RDONES, M.D. Respondcr~t

10 T have read and (ulty discussed with re.o;pondent .lohn Mardones, M.D., the tC1'111s <Tnd

1 I conditi~'I)S and other matters contt~ined in the above Stipulated Settlement and Di~ciplinary Order.

12 T approve its form and content.

13 DATED: 0~t7-JS: 14

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The foregoing Stipul11ted Settlement and Di~ciplinary Order is hereby re:-pectfully

suhmittcd for consideration by the Medical Board of Califomill.

Respectfully sul,mined,

LYNM. WI::STfAf.,L Deputy Attorney General A.ttr;rnrys for Complainam

27 50201471)7392 81 07Q937.dllC I

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I-----.-----S~T-1-J>L-IL_A_T_E-.T>-S-~-T-T-Lc-~M_l_EN-T-AND DlSCIPl..fNARY OR Ot:R. (09-20 l2-227J

Exhibit A

First Amended Accusation No. 09-2012-227539

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KAMALA D. HARRIS Attorney General of California

THOMAS S. LAZAR Supervising Deputy Attorney General

KAROLYN M. WESTFALL Deputy Attorney General

State Bar No. 234540 110 West "A" Street. Suite 1100 San Diego, CA 9210 I P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3121 Facsimile: (619) 645-2061

FILED STATE OF CALIFORNIA

MEDICAL BOARD· OF CALIFORN:r SACRAMENTO ~, .. ) · · ti 1J 20 J~ BY _jJ__ 31!:.LC ~=) AN.~! \1~'~

8 Atrorneysfor Complainant

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BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against:

JOHN MARDONES, M.D. P.O. Box 2527 Palm Springs, CA 92263

Physician's and Surgeon's Certificate No. A41581,

Respondent.

Complainant alleges:

Case No. 09-2012-227539

FIRST AMENDED ACCUSATION

PARTIES

I. Kimberly Kirchmeycr (Complainant) brings this First Amended

22 Accusation solely in her official capacity as the Executive Director of the Medical Board of

23 California, Department of Consumer Affairs.

24 2. On or about March 18, 1985, the Medical Board of California (Board)

25 issued Physician's and Surgeon's Certificate Number A41581 to John Mardones, M.D.

26 (respondent). Respondent's Physician's and Surgeon's Certificate No. A41581 was in full force

27 and effect at all times relevant to the charges and allegations brought herein and will expire on

28 June 30, 201 6, unless renewed.

ACCUSATION NO. 09-2012-227539

JURISDICTION

2 3. This First Amended Accusation, which supersedes the Accusation filed on

3 July 3, 2014, in the above-entitled matter, is brought before the Board, under the authority of the

4 following laws. All section references are to the Business and Professions Code (Code) unless

5 otherwise indicated.

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4. Section 2227 of the Code states:

"(a) A licensee whose matter has been heard by an administrative law

judge of the Medical Quality Hearing Panel as designated in Section 11371 ofthe

Government Code, or whose default has been entered, and who is found guilty, or

who has entered into a stipulation for disciplinary action with the board, may, in

accordance with the provisions of this chapter:

''( 1) Have his or her license revoked upon order of the board.

"(2) Have his or her right to practice suspended for a period not to exceed

one year upon order ofthc board.

''(3) Be placed on probation and be required to pay the costs of probation

monitoring upon order of the hoard.

"( 4) Be publicly reprimanded by the board. The public reprimand may

include a requirement that the licensee complete relevant educational courses

approved by the board.

"(5) Have any other action taken in relation to discipline as part of an

order of probation, as the board or an administrative law judge may deem proper.

·'(b) Any matter heard pursuant to subdivision (a), except for warning

letters, medical review or advisory conferences, professional competency

examinations, continuing education activities, and cost reimbursement associated

therewith that are agreed to with the board and successfully completed by the

licensee, or other matters made confidential or privileged by existing law, is

deemed public, and shall be made available to the public by the board pursuant to

Section 803.1."

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ACCUSATIOJ\ NO. 09-2012-227539

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5. Section 2234 of the Code states, in pertinent part, that:

"The board shall take action against any licensee who is charged with

unprofessional conduct. In addition to other provisions of this article,

unprofessional conduct includes, but is not limited to, the following:

"(a) Violating or attempting to violate, directly or indirectly, assisting in

or abetting the violation of, or conspiring to violate any provision of this chapter

[Chapter 5, the Medical Practice Act].

6. Unprofessional conduct under Business and Professions Code section 2234

I 0 is conduct which breaches the rules or ethical code of the medical profession, or conduct which is

11 unbecoming a member in good standing of the medical profession, and which demonstrates an

12 unfitness to practice medicine. (Shea v. Board of Medical Examiners ( 1978) 81 Cai.App.3d 564,

13 575.)

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"(a) The conviction of any offense substantially related to the

qualifications, functions, or duties of a physician and surgeon constitutes

unprofessional conduct within the meaning of this chapter [Chapter 5, the Medical

Practice ActJ. The record of conviction shall be conclusive evidence only of the

fact that the conviction occurred.

"(b) The district attorney, city attorney, or other prosecuting agency shall

notify the Division of Medical Quality 1 ofthe pendency of an action against a

licensee charging a felony or misdemeanor immediately upon obtaining

information that the defendant is a licensee. The notice shall identify the licensee

and describe the crimes charged and the facts alleged. The prosecuting agency

1 California Business and Professions Code section 2002, as amended and effective January I, 2008, provides that, unless otherwise expressly provided, the term "board" as used in the State Medical Practice Act (Bus. & Prof. Code, §§ 2000, et seq.) means the "'Medical Board of California," and references to the "Division of Medical Quality" and "Division of Licensing" in the Act or any other provision of law shall be deemed to refer to the Board.

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shall also notify the clerk of the court in which the action is pending that the

defendant is a I icensee, and the clerk shall record prominently in the fi lc that the

defendant holds a license as a physician and surgeon.

"(c) The clerk of the court in which a licensee is convicted of a crime

shall, within 48 hours after the conviction, transmit a certified copy of the record

of conviction to the board. The division may inquire into the circumstances

surrounding the commission of a crime in order to fix the degree of discipline or

to determine if the conviction is of an offense substantially related to the

qualifications, functions, or duties of a physician and surgeon.

"(d) A plea or verdict of guilty or a conviction after a plea of nolo

contendere is deemed to be a conviction within the meaning of this section and

Section 2236.1. The record of conviction shall be conclusive evidence of the fact

that the conviction occurred."


"(a) The use or prescribing for or administering to himself or herself, of

any controlled substance; or the use of any of the dangerous drugs specified in

Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be

dangerous or injurious to the licensee, or to any other person or to the public, or to

the extent that such use impairs the ability of the licensee to practice medicine

safely or more than one misdemeanor or any felony involving the use,

consumption, or self-administration of any of the substances referred to in this

section, or any combination thereof, constitutes unprofessional conduct. The

record of the conviction is conclusive evidence of such unprofessional conduct.

'"(b) A plea or verdict of guilty or a conviction following a plea of nolo

contendere is deemed to be a conviction within the meaning of this section. The

Division of Medical Quality may order discipline of the licensee in accordance

with Section 2227 or the Division of Licensing may order the denial of the license

when the time for appeal has elapsed or the judgment of conviction has been

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affirmed on appeal or when an order granting probation is made suspending

imposition of sentence, irrespective of a subsequent order under the provisions of

Section 1203.4 ofthe Penal Code allowing such person to withdraw his or her

plea of guilty and to enter a plea of not guilty, or setting aside the verdict of

guilty, or dismissing the accusation, complaint, information, or indictment."2

9. California Code of Regulations, title 16, section 1360, states:

''For the purposes of denial, suspension or revocation of a license,

certificate or permit pursuant to Division 1.5 (commencing with Section 475) of

the code, a crime or act shall be considered to be substantially related to the

qualifications, functions or duties of a person holding a license. certificate or

permit under the Medical Practice Act if to a substantial degree it evidences

present or potential unfitness of a person holding a license, certificate or permit to

perform the functions authorized by the license, certificate or permit in a manner

consistent with the public health, safety or welfare. Such crimes or acts shall

include but not be limited to the following: Violating or attempting to violate,

directly or indirectly, or assisting in or abetting the violation of, or conspiring to

violate any provision of the Medical Practice Act."

FIRST CAUSE FOR DISCIPLINE

(Use of Alcoholic Beverages to the Extent, or in a Manner, as to be Dangerous to Respondent, Another Person, or the Public)

10. Respondent has subjected his Physician's and Surgeon's Certificate No.

22 A41581 to disciplinary action under sections 2227 and 2234, as defined by section 2239,

23 subdivision (a), of the Code, in that he has used alcoholic beverages to the extent, or in such a

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2 There is a nexus between a physician's use of alcoholic beverages and his or her fitness to practice medicine, established by the Legislature in section 2239, "in all cases where a licensed physician used alcoholic beverages to the extent or in such a manner as to pose a danger to himself or others." (Watson v. Superior Court (Medical Board) (2009) 176 Cai.App.4th 1407, 1411.)

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manner, as to be dangerous or injurious to himself, another person, or the public, as more

2 particularly alleged hereinafter:

3 March 25, 2010 DUI

4 (a) On or about March 25, 2010, at approximately 11:35 p.m., Riverside

5 County Sheriffs Department Deputy (Deputy) S.P. was driving in a marked patrol vehicle

6 southbound on ElDorado in the City of Indian Wells. As Deputy S.P. drove up a small

7 incline on El Dorado, he noticed headlights approaching his patrol vehicle directly in front

8 of him, on the wrong side of the roadway. Deputy S.P. swerved out of the way to avoid a

9 head-on collision with the vehicle. The vehicle, a silver Jaguar, proceeded past Deputy

10 S .P. and then drove through a red I ight at the intersection of El Dorado and Fred Waring

11 Drive. The silver Jaguar then stopped in the middle of the intersection, making no effort

12 to get out ofthe way of the vehicles traveling east and west on Fred Waring Drive.

13 (b) Deputy S.P. initiated a traffic stop on the vehicle and approached the

14 driver, who was identified as respondent. Upon doing so, Deputy S.P. immediately

I 5 detected the odor of alcohol emitting from the vehicle. As Deputy S.P. spoke with

16 respondent, he also noted that respondent's eyes were bloodshot and droopy. When asked

17 if he had been drinking, respondent admitted to having ''a couple vodkas." Deputy S.P.

18 then asked respondent to exit the vehicle and perform some tield sobriety tests.

19 (c) Deputy S.P. administered the Horizontal Gaze Nystagmus (HGN) Test.

20 During this test, Deputy S.P. observed a lack of smooth pursuit in both of respondent's

21 eyes, noted they moved in a jagged and jerky fashion, detected nystagmus in both of

22 respondent's eyes, but was unable to identify the angle because respondent continued to

23 move his head and was unable to follow directions.

24 (d) Deputy S.P. administered the Heel-to-Toe Test. During this test,

25 respondent was unable to follow instructions and could not maintain the starting position.

26 Respondent elevated his arms for balance, could not maintain a straight line of travel, and

27 had to be grabbed several times by Deputy S.P. to prevent him from falling over.

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(e) Deputy S.P. administered the Preliminary Alcohol Screening Test. During

this test, respondent provided two breath samples into the portable device, which

measured his blood alcohol content to be 0.166 percent at approximately II :57 p.m., and

0.170 percent at approximately 11:59 p.m.

(f) Respondent was then placed under arrest and taken to the Palm Desert

Sheriffs station. At the station, respondent provided two additional breath samples,

which measured his blood alcohol content to be 0.12 percent at approximately I2:38 a.m.,

and 0.12 percent at approximately 12:42 a.m.

(g) On or about April19, 20IO, the Riverside County District Attorney filed a

I 0 criminal complaint against respondent in the matter of The People of the State of

1I California v. John Arthur Mardones, Riverside (Indio) County Superior Court Case No.

I2 I NM I 0002391. Count one of the complaint charged respondent with driving under the

13 influence of alcohol or drugs, in violation of Vehicle Code section 23152, subdivision (a),

14 a misdemeanor. Count two ofthe complaint charged respondent with driving while

15 having a .08 percent or higher blood alcohol content, in violation of Vehicle Code section

I6 23 152, subdivision (b), a misdemeanor.

I7 (h) On or about January I3, 20 II, the District Attorney dismissed the driving

18 under the influence charges in the interest ofjustice, and respondent was convicted upon

19 his plea of guilty to a violation of V chicle Code section 23107, an infraction, for driving

20 on the wrong side of the road.

21 October 13, 2012 DlJI

22 (i) On or about October 13, 2012, at approximately 11:15 a.m., respondent

23 was driving a grey Acura on Azusa A venue, in the City of San Bernardino. Another

24 person, G.A., had also been driving on that road and was stopped at a red light when his

25 vehicle was rear-ended by respondent. G.A. then exited his vehicle to survey the damage.

26 When he saw no damage, G.A. made eye contact with respondent and told him to be

27 careful. Respondent cursed several times at G.A. G.A. then returned to his vehicle and

28 proceeded to drive away.

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(j) Shortly thereafter, G.A. stopped at another red light and was rear-ended a

second time by respondent, this time with more force and causing him moderate

discomfort to his neck and upper back area. Once again, G.A. exited his vehicle to survey

the damage. G.A. noted some moderate damage to his vehicle and made eye contact with

respondent again. Once again, respondent cursed at G.A. and then drove away.

(k) A passer-by, E.M., witnessed the collision and called police.

(I) Shortly after driving away from the scene of the collision, respondent rear-

ended a second vehicle, driven by P.O., that was stopped in a left turn lane.

(m) Officers from the Azusa Police Department (APD) were dispatched to the

hit-and-run collision on Azusa Avenue. Upon arrival, APD officer J.P. noted that

respondent was seated in the driver's seat of the Acura with the engine running while

respondent's bumper was still resting against the rear bumper of P.O.'s vehicle.

(n) Officer J.P. made contact with respondent and asked him to step out of the

vehicle. Respondent appeared confused and disoriented and nearly fell over as he exited

the vehicle. Respondent's breath smelled of alcohol, his eyes were watery and glossy,

and his speech was slow and heavily slurred.

( o) Respondent was unable to tell officer J.P. what had happened, but stated he

had just gotten off a twelve-hour shift at the hospital in the E.R. Respondent initially

claimed he drank only half an ounce of vodka prior to driving, but later clarified that he

may have had one or two drinks but only one shot of vodka.

(p) Officer J.P. administered the HGN Test. Respondent was unable to follow

instructions on four separate attempts. Respondent moved his head and failed to track the

officer's pen as directed. At one point, however, officer J.P. was able to briefly detect the

onset ofHGN.

(q) Officer J.P. administered the Standing Balance Test. Respondent had to be

braced from the back to prevent him from falling backwards during this test and he

estimated 30 actual seconds as 38 seconds.

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ACClJS/\TlON NO. 09-2012-227539

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(r) Officer J.P. administered the One Leg Stand Test. Respondent had to be

braced from the back to prevent him from falling during this test, swayed throughout, and

did not count out loud as instructed.

(s) Officer J.P. administered the Finger-to-Nose Test. Respondent stumbled

backwards and moved his head from side to side but never actually attempted to touch his

finger to his nose.

(t) Officer J.P. administered the Walk and Turn Test. Respondent walked

with his hands on his waist, swayed from side to side, and took seven steps instead of five,

as instructed.

(u) Respondent was arrested and transported to jail. Throughout the booking

process, respondent repeatedly asked when he was going to be released because he needed

to be back at work at 6:30.

(v) Officer J.P. served respondent with Department of Motor Vehicle (DMV)

form #367- an admin per se driver's license suspension form.

(w) At approximately 1 :41 p.m., a blood sample was obtained from respondent

that was subsequently tested for alcohol. The blood test result indicated respondent had a

blood alcohol level of .12 percent.

(x) On or about December 20, 2012, the Los Angeles County District Attorney

filed a criminal complaint against respondent in the matter of The People of the State of

Calijhrnia v. John Arthur Mardones, Los Angeles County Superior Court Case No.

2JB 10351. Count one of the complaint charged respondent with driving under the

influence of alcohol or drugs, in violation of Vehicle Code section 23152, subdivision (a),

a misdemeanor. Count two of the complaint charged respondent with driving while

having a .08 percent or higher blood alcohol content, in violation of Vehicle Code section

23152, subdivision (h), a misdemeanor. Count three of the complaint charged respondent

with hit-and-run driving, in violation of Vehicle Code section 20002, subdivision (a), a

misdemeanor.

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(y) On or about June 27,2013, respondent was convicted upon his plea of

guilty to count one of the complaint, i.e., driving under the influence of alcohol in

violation of Vehicle Code section 23152, subdivision (a). On or about July 31, 2013, the

Superior Court sentenced respondent to probation for three years on the following terms

and conditions: (I) serve thirty (30) days in jail minus two credits, which was to be

satisfied by twenty-eight (28) days of community labor; (2) pay fines and restitution

totaling $2,478.00; (3) enroll in and complete a First Oflender Alcohol Program; (4)

attend a MADD program; (5) install an ignition interlock device as ordered by the DMV;

(6) not drive a motor vehicle without a valid license and proof of insurance; and (7) not

drive a motor vehicle with any measurable amount of alcohol in his system.

SECOND CAUSE FOR DISCIPLINE

(Conviction of an Offense Substantially Related to the Qualifications, Functions, or Duties of a Physician and Surgeon)

II. Respondent has further subjected his Physician's and Surgeon's

15 Certificate No. A41581 to disciplinary action under sections 2227 and 2234, as defined by section

16 2236, of the Code, in that he has been convicted of an offense substantially related to the

17 qualifications, functions, or duties of a physician and surgeon, as more particularly alleged in

18 paragraphs 1 O(i) through l O(y), above, which are hereby incorporated by reference and realleged

19 as if fully set forth herein.

20 THIRD CAUSE FOR DISCIPLII"E

21 (General Unprofessional Conduct)

22 12. Respondent has further subjected his Physician's and Surgeon's

23 Certificate No. A41581 to disciplinary action under sections 2227 and 2234 of the Code, in that

24 he has engaged in conduct which breaches the rules or ethical code of the medical profession, or

25 conduct which is unbecoming to a member in good standing of the medical profession, and which

26 demonstrates an unfitness to practice medicine, as more particularly alleged in paragraph I 0,

27 above, which is hereby incorporated by reference and realleged as if fully set forth herein.

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FOURTH CAUSE FOR DISCIPLINE

2 (Violation of the Medical Practices Act)

3 13. Respondent has further subjected his Physician's and Surgeon's Certificate

4 No. A41581 to disciplinary action under sections 2227 and 2234, as defined by section 2234,

5 subdivision (a), of the Code, in that he has violated or attempted to violate, directly or indirectly,

6 a provision or provisions of the Medical Practice Act, as more particularly alleged in paragraphs

7 10 through 12, above, which arc hereby incorporated by reference and realleged as if fully set

8 forth herein.

9 DISCIPLINARY CONSIDERATIONS

10 14. On or about January 14,2014, at approximately 11:03 a.m., respondent

11 was photographed by a red light camera while driving a grey Acura at the Vista Chino and Date

12 Palm Drive intersection in Cathedral City. Respondent was issued citation number RLA 17212,

13 for violating Vehicle Code section 21453, subdivision (a), an infraction.

14 15. Having been previously suspended, respondent's California driver's license

15 was not valid on January 14,2014.

16 16. On April 8, 2014, respondent was convicted ofthe red light violation in

17 Riverside County Superior Court case number RLA 17212JM and ordered to pay a fine in the

18 amount of$680.00.

19 PRAYER

20 Wl!EREFORE, Complainant requests that a hearing be held on the matters herein

21 alleged, and that following the hearing, the Medical Board of California issue a decision:

22 I. Revoking or suspending Physician's and Surgeon's Certificate Number

23 A41581, issued to respondent John Mardones, M.D.;

24 ') .... Revoking, suspending or denying approval of respondent John Mardones,

25 M.D.'s authority to supervise physician assistants, pursuant to section 3527 of the Code;

26 3. Ordering respondent John Mardones, M.D. to pay the Medical Board of

27 California the costs, if placed on probation, of probation monitoring; and

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DATED

4. Taking such other and further action as deemed necessary and proper.

Executive rector Medical Board of California Department of Consumer Affairs State of California Complainant

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ACCUSATION NO. 09-20 I 2-227539

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