1 XAVIER BECERRA· Attorney General of California

2 JUDITH T. ALVARADO Supervising Deputy Attorney General

3 CHRISTINE R. FRIAR Deputy Attorney General

4 State Bar No. 228421 California Department of Justice

5 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013

6 Telephone: (213) 269-6472 Facsimile: (213) 897-9395

7 Attorneys for Complainant

FILED STATE OF CALIFORNIA

MEDICAL BOAR ·OF CALIFORNIA SAC TO :i.. ! 20 ..L£.. BY ANALYST

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BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

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In the Matter of the Petition to Revoke Probation Against:

KEINO ANDRE RUTHERFORD, M.D. 4 707 Tyrone A venue Sherman Oaks, California 91423-2319

15 Physician's and Surgeon's Certificate · No. A 80432, .

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17 Respondent.

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19 Complainant alleges: ·

Case No .. 800-2018-045441

PETITION TO REVOKE PROBATION

20 PARTIES

21 l. Kimberly Kirchmeyer (Complainant) brings this Petition to Revoke Probation solely·

22 in her official capacity as the Executive Director of the Medical Board of California, Department

23 of Consumer Affairs (Board).

24 2. On or about September 6, 2002, the Medical Board of California issued Physician's

25 ~nd Surgeon's Certificate Number A 80432 to Keino Andre Ruthe!ford, M.D. (Respondent). The

26 Physician's and Surgeon's Certificate was in effect at all times relevant to the charges brought

27 herein and will expire on October 31, 2019, unless renewed.

28 ///

1

PETITION TO REVOKE PROBATION No. 800-2018-045441 (Keino Andre Rutherford, M.D.)

1 3. In a disciplinary action entitled In the Matter of the Accusation Against: Keino Andre

2 Rutherford, MD., Case No. 11-2013-233225, the Board issued a decision, effective November 6,

3 2015, in which Respondent's Physician's and Surgeon's Certificate was revoked. However, the

4 revocation was stayed and Respondent's Physician's and Surgeon's Certificate was placed on

5 probation for a period of five (5) years with certain terms and conditions. A copy of that Decision

6 and Order is attached as Exhibit A and is incorporated by reference. ·

7 4. On February 22, 2016, due to Respondent's failure to comply with Condition No. 2 of

8 the Disciplinary Order in Case No. 11-2013-233225 (alcohol- abstain from use), a Cease

9 Practice Order was issued prohibiting Respondent from engaging in the practice of medicine.

1 O The Cease Practice Order has since dissolved.

11 JURISDICTION

12 5. This Petition to Revoke Probation is brought before the Board under the authority of

13 the following laws. All section references are to the Business and Professions Code unless

14 otherwise indicated.

15 6. Section 2004 of the Code states,

16 "The board shall have the responsibility for the following:

17 "(a) The enforcement of the disciplinary and criminal provisions of the Medical Practice

18 Act.

19 "(b) The administration and,hearing of disciplinary actions.

20 "( c) Carrying out disciplinary actions appropriate to findings made by a panel or an

21 administrative law judge.

22 "( d) Suspending, revoking, or otherwise limiting certificates after the conclusion of

23 disciplinary actions.

" " 24

25 7. Section 2227 of the Code provides that a licensee who is found guilty under the

26 Medical Malpractice Act may have his or her license revoked, suspended for a period not to

27 exceed one year, placed on probation and required to pay the costs of probation monitoring, be

28 publically ,reprimanded, or have such other action taken in relation to discipline as the Board '

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PETITION TO REVOKE PROBATION No. 800-2018-045441 (Keino Andre Rutherford, M.D.)

1 deems proper.

2 8. This Petition to Revoke Probation is further brought under the authority of the

3 Board's Decision in Case No. 11-2013-233225, which provides in pertinent part,

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

5 of probation is a violation of probation. If Respondent violates probation in any respect, the

6 Board, after giving Respondent notice and the opportunity to be heard, may revoke probation and

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

8 Probation, or an Interim Suspension Order is filed against Respondent during probation, the

9 Board shall have continuing jurisdiction until the matter is final, and the period of probation shall

1 O be extended until the matter is final."

11 CAUSE TO REVOKE PROBATION

12 (Alcohol-: Abstain from Use)

13 9. · At all times after the effective date of Respondent's probation, Condition 2 stated:

14 "Respondent shall abstain completely from the use of products or beverages containing

15 alcohol.

16 "If Respondent has a confirmed positive biological fluid test for alcohol, Respondent shall

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

18 medicine. The Respondent sh!:lll not resume the practice of medicine until final decision on an

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

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

21 Respondent requests a hearing on the accusation and/or petition to revoke probation, the Board

22 shall provide the Respondent with a hearing within 30 days of the request, unless the Respondent

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

24 the Board within 15 days unless good cause can be shown for the delay. The cessation of practice

25 shall not apply to the reduction of the probationary time period.

26 "If the Board does not file an accusation or petition to revoke probation within 15 days o.f

27 the issuance of the notification to cease practice or does not provide Respondent with a hearing

28 within 30 days of a such a request, the notification of cease practice shall be dissolved."

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PETITION TO REVOKE PROBATION No. 800-2018-045441 (Keino Andre Rutherford, M.D.)

1 10. Respondent's probation is subject to revocation because he failed to comply with

2 Condition 2, referenced above. The facts and circumstances regarding this violation are as

3 follows:

4 A. On or about April 28, 2018, at approximately 2:30 a.m., a Califomia Highway Patrol

5 Officer observed a vehicle on the I-405 freeway make an unsafe lane change. The vehicle was

6 further observed to be travell.ing at a rate of 78 miles per hour when the maximum speed limit

7 was 65 miles per hour.

8 B. The Officer instructed the driver, via the public address system, to exit the freeway at

9 Ventura Boulevard.

1 O C. The driver, Respondent, complied and came to a stop in a parking lot located on

11 Sepulveda Boulevard and Green Leaf Street.

12 D. Upon making contact with Respondent through the opened driver side window, the

13 Officer smelled alcohol emitting from the vehicle.

14 E. After Respondent exited the vehicle, the Officer observed Respondent to be walking

15 with an unsteady gait.

16 F. The Officer also observed Respondent's speech to be slurred, his eyes red and watery

17 and his breath and/or person to smell of alcohol.

18 G. Respondent performed a variety of field sobriety tests administered by the Officer and

19 ·did not, perform satisfactorily.

20 H. Respondent was arrested for violating Vehicle Code section 23152, subdivision (a)

21 (misdemeanor driving under the influence).·

22 I. At the Vali Nuys police station, Respondent submitted to a breath alcohol test and his

23 blood alcohol level registered at 0.14 7%.

24 J. In relation to his arrest, on or about May 17, 2018, Respondent was charged with

25 violating Vehicle Code sections 23152, subdivision (a) (misdemeanor driving under the

26 influence), and 23152, subdivision (b) (misdemeanor driving ilnder the influence with a blood

27 alcoh0l concentration of 0.08% or higher) in The People of the State of California vs. Keino

28 Andre Rutherford, Case No. 8MN02628, Los Angeles Superior Court.

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PETITION TO REVOKE PROBATION No. 800-20 I 8-045441 (Keino Andre Rutherford, M.D.)

1 K. On or about June 28, 2018, Respondent participated in an interview with his Board-

2 appointed probation monitor. Respondent admitted that he had been arrested on April 28, 2018,

3 and that he had a "lapse of judgment" and had been drinking with friends.

4 11. As set forth above, Respondent failed to abstain from the use of alcohol and,

5 therefore, violated Condition No. 2 of the Disciplinary Order, which requires that he abstain from

6 the use of alcohol.

7 DISCIPLINE CONSIDERATIONS

8 · 12. To determine the degree of discipline, if any, to be imposed on Respondent,

9 Complainant alleges that on or about June 28, 2010, the Board issued Respondent Citation No:

10 20-2010-207789 in accordance with Code sections 125.9 for violation of Code section 2234

11 (unprofessional conduct for failing to report a misdemeanor conviction in violation of Code

12 section 802.1 ): Specifically, Respondent failed to report to the Board, in writing within thirty

13 (30) days, a misdemeanor conviction for violation of Vehicle Code section 23152, subdivision (a)

14 (driving under the influence of alcohol), to which he pled guilty on or about May 5, 2010. The

15 Board fined Respondent $750.00. That citation is now final and is incorporated by reference as if

16 fully set forth.

17 13. Additionally, Complainant alleges that on or about February 22, 2016, due to

18 Respondent's failure to comply with Condition No. 2 of the Disciplinary Order in Case No. 11-.

19 2013-233225 (alcohol - abstain from use), a Cease Practice Order was issued prohibiting

20 Respondent from engaging in the practice of medicine. The Cease Practice Order has since

21 dissolved.

22 PRAYER

23 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

24 and that following the hearing, the Board issue a decision:

25 1. Revoking the probation that was granted by the Board in Case No. 11-2013-233225

26 and imposing the disciplinary order that was stayed thereby revoking Physician's and Surgeon's

27 Certificate No. A 80432 issued to Keino Andre Rutherford, M.D.;

28 ///

5

PETITION TO REVOKE PROBATION No. 800-2018-045441 (Keino Andre Rutherford, M.D.)

1 2. Revoking or suspending Physician's and Surgeon's Certificate No. A 80432, issued to

2 Keino Andre Rutherford, M.D.;

3 3. Revoking, suspending or denying approval ofKeino Andre Rutherford, M.D.'s

4 authority to supervise physician assistants and advanced practice nurses;

5 4. Ordering Keino Andre Rutherford, M.D. to pay, if probation is continued or

6 extended, the costs of probation monitoring; and

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

9 DATED: August 21, 2018

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LA2018501740

K Executive Dire or Medical Board of California Department of Consumer Affairs State of California Complainant

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PETITION TO REVOKE PROBATION No. 800-2018-045441 (Keino Andre Rutherford, M.Q.)

Exhibit A

Decision and Order

Medical Board of California Case No. 11-2013-233225

·BEFOUETHE MEDIC.AL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

Keino Audre Rutherford, M.D.

Physician's and Surgeon's Certificate No. A 80432

Respondent

) ) ) ) ) ) ) ) ) )

Case No. 11·2013~233225

------~~-----~) DECISION

The attaclted Stipulated Settlement and Disciplinary Order is hereby adopted as the Decision and 01·der of the Medical Board of California, Department of Consumer Affairs, State of California.

1his Decision shall become effective at5:00 p.m. on November 6. 2015 •.

IT IS SO ORDERED: October 8. 2015.

MEDICAL BOARD OF CALIFORNIA

iJ.w ~ lh Dev Gnnnadev, M:::Cliair .

. Pa11clB

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KAMALA D. HARRIS Attorney General of California JUDITH T. AL v ARA.DO ·Supervising Deputy Attorney General CHRISTINE R. FRIA.ll Deputy Attorney General State Bar No. 2is421 California Department of Justice

· 300 So. Spring Street, Suite 1702 Los Angeles> CA 90013 Telephone: (213) 897N6404 FaGsimile: (213) 897N9395

Attorneys jot Complainant

BEFORF, THE MEDICAL BOARD OF CALI.FORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

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11 In the Matter of the Accusation Against: • I • '

Case No. 11-2013~233225

OAH No. 2014060680 12 . KEINO ANDRE RUTHERFORD, M.D •. 9449 Imperial Hwy

13 Downey, CA 90242

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Phy:.~ician's and Surgeon's Ce1·tificate No.A80432,

Respondent.

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STIPULATEl> SETTLEMENT AND DISCIPLINARY ORDER·

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IT IS HEREBY. STIPULATED AND AGREED by and betWeen the parties to the above~

entitleq proceedings.that the following matters.are tcue:

PARTIES

20 . 1. Kimbe~ly Kh:chmeyer (11Complai11ant11) is the Exooutive Director of the ~edical

21 Boai'.d of Califomia. She brought this action solely in her official capacity and is 1·epresented in ' . .

22 this matter by Kamala D. Hfll.Tis, Aiiorney General of the State of Califm:nift, by Cbr~stine R.

23 Friar1 Deputy Attorney General.

24 2. RespoD;dent Keino Andre Rutherford, M.D. (11Respondent11) is represented in this

25 proceeding by attorney Theodore A. Cohen, Esq.~ whose address is: Law Offices of Theodore A.

26 ,Cohen, 3550 Wilshire Blvd.~ Suite 1280, Los Angeles, CA 90010.

· 27 3. On or about September 6, 2002, the Medical Board of California, Department of

ts Consumer Affairs ("Board") issue~. Physician's and Surgeo~'s Certifioate No. A 80432 to

1 STIPULATED SBA!L"EMBNr (11~2013-233225)

I Respondent. That Certificate was in fuil force and effect at all times relevant to the chw:ges

2 brought in A~cusationNo. 11-2013~233225 m1d will expire on October 3!, 2015, unless renewed.

3 JURISDICTION

4 4. Accusation No. 11-2013-233225 WEIS filed before the Board, ·and is currently pending

5 against Respondent. The Accusation ai1d all other statutorily required documents were pt'operly

6 ·served on Respondent on May 23, 2014. Respondent timely filed his Notice pf Defense

7 contesting the Accusation and denies being under the influence of alcohol as alleged in the

8 Accusation.

9 5. A copy ofAccusation No. 11-2013-233225 is attached as Exhibit ~'A" and

1 O incorporated herein by refe1·en9e.

11 ;ADVISEMENT AND WAIVERS

12 6. Resp<?ndent has carefnlly read, fully discussed with com1.Sel, and understands the

13 · chw.·ges and allegations in Accusation No. 11-2013-233225. Respcmdenthas alim.carefullyread,

14 fully discussed with counsel, and understands the effects of t?is Stipulated Settlement and

15 Disciplinary Order. ·

7. Respondent is folly aware of his l~gal rights in. this matt~, including the right to a . .· J • • . • .

17 hearing on the charges a_i1d allegations in th~Accusation; the right to be represented by co~sel.at

18 his own expense; the right to confront and crosswexaiuine the witnesses against hllll; the right to . . 19 p1·eseilt evidence and to testify on his own behalf; the right to the issuance of subpoenas to oompe'l

20 the attendance of Witnesses and the production of documents;_ the right to :reconsideration and

2:1 court review of an adverse deoision; a11d nll other rights aooorded by the California

22 Administrative Procedure A~t ancl other applicable laws.

23 g; Respondent voluntarily, knowingly, and iptelligently waives and gives \l.P each and

24 every right set forth above.

25 CULPABILfl'Y

26 9. Respondent admits that at a hearing, Complainant could set forth a prima facie case ' 27- for the charges and allegations in Accusation No. 11 ~20 l3M233~25, and Respondent declines to

28 defend same. Resp~ndent further agrees tha:t his Physician and Su1·geon1s Certificate is subject to

2 STIPULATED SETTLEMBNT (11~2013~233225)

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1 discipline and ·he agrees to be qound by the :Board> s imposition of discipline as set forth in th.e ·

2 Disciplinary 01·der 'below.

3 10, Respondent furthei· agrees that if he ever petitions for early termination or

4 modification of probation> or if the Board ever petitions for revocation of probation~ all of the

5 charges and allegations contairied in Accusation No. 11-2013-233225 shall be deemedtrue>

6 correct and fully admitted by Respondent for purposes of that proceeding or any other licensing

7 proceeding involving Respondent in the State of California.

8 11. Respondent agrees that his Physician's and Surgeon's Ce1tificate is subject to

9. discipline and he agrees to be bound by the Board's probationary tenns as set forth in the

1 O Dis~iplimuy Order below. · ·

11 CONTINGENCY

12 12. This stipulation shall be subject to approval by the Board. Responde~t understand~

13 and agl.'ees that counsel for Complainant and the staff of the Board may communicate directly

14 · with tl1e Board ~egarding this stipulation and settlenien!, without notice to or participation by

15 Respondent or his counsel. By signing the stipulation, Respondent understands and agrees that h~

16 may llOt withdraw his agreem~nt or seek to rescind the stipulation prior to the time the Board

17 oonsiders and acts upon it. If the Board fails to adopt this stipulation as its Decision and Order,

18 the Stipulated Settlement a.11d Disciplinary.Order shall be of no force or effect, exceptfot this . . .

19 paragraph, it shall be inadmissible in ~y legal action between the parties, and the Board shall not

20 be disqualified from furt~er ac~on by having considered this matter.

21 13. The paflie~ understand and agree that Portable Do~ument Format (PDF) and facsimile

22 ~opies of this Stipulated S~tUement and Disciplinary Order~ inclu4ing Portable Document Format

23 (PDF) and facsimile signatures thereto, shill have th~ same force and effect as the 01·iginals.

24 . . 14: In co11sideration of the foregoing admissions and stipulations) the parties agi'ee that

25 th~ Board may~ :with~ut further notice or formal proceeding, issue and enter the following

26 Disciplinary Order:

27 Ill '

28 ///.

3 )

STIPULATED ~BTI'LEMENT (11-2013-233225)

..

1 DISCIPLINARY ORDER

2 IT IS HEREBY ORDERED that Physician's and Surgeon's Certificate No. A 80432 issued

3 to Respondent Keino Andre Rutherfor~, M.D. is l'evoked. However, the 1·evocation is stayed and

4 Respondent is placed on probation for five (5) years on the following terms and conditions.

5 1. CONTROLLED SUBSTANCE~ -ABSTAIN FROM USE, Respondent shall abstain

6 completely from the personal use or possession of co11trolled substances as defined in the

7 California U11ifonn Controlled Substance$ Act, dangeroiis ckngs as defined by Business and

8 Professions Code section 4022, and any drugs requiring a prescription. This prohibition does not

9 apply to medications lawfully prescribed to Respondent by another practitioner· for a bona fide

1 O illness or condition.

11 Within 15 calendar days of receiving any lawfully presoribed medications, Respondent

12 shall notify the Board or its designee oftl1e: issuingpractitioner•s name~ address; and telephone

13 nurnbe1·; medication name, strength> and quantity; and issuing pharmacy name, address, ahd

14 telephone number.

15 IfRespondenthE\S a confirm.ed positive biological-fluid test.for any substance (whether or

16 not legally prescribed) and bas not r.eported the use to the Board or its cfosignee, Respondent sllall

17 receive a notification ii·om the Board or its desiguee to-immediately ?ease the.practice of

18 medicine. The Respondent shall not :resume the ptaotioe of medicine until final decision on an .

19 accusation and/or a petition to revoke pwbation. An accusation and/or petition to l'evok'e · / . . . .

20 probation shall be filed by the Boa1·d within is days of the notificati~n to cease prac~~e. If the

21 Respondent requests a hearing on the accusation and/or petition to revoke pro bati.on, the Board

~2 .. shall provide tb.e Respondent with a hearing within 30 days of.the reques.t, unless the Respondent .

23 stipulates to a later hearing. A decision shall. be received fiom the Administrative Law Judge or

24 the Board within 15 days unless good caus~ can be shown for the delay. The cessation of practice

25 shall not apply to the reduction of the probationary time period .

. 26 If the Board cloes not file an a.oqusation or petition to revoke probation within 15 days of the

27 issuance of the notification to cease practice or does hot provide Respondel;lt with a hearing

28 with.i1130 days qf a such a request1 the noti:flcation of cease practice shall be dissolved.

4 STIPULATE)) SB'CTLEMEN'J.' (l 1·2013~7.33225)

1 2. ALCOHOL MAB.STAIN FROM USE, Respondent shall abstain completely from the

2 use of products. or beverages containing alcohol.

· 3 If Respondent has a confilmed positive biological fluid test for alcohol, Respondent shall

4 rec~ive a notification from the Board or itf,! designee to immediately cease the practice of

5 medicine. The Respondent shall not resume the practice of medicine until final decision on ab

6 accusation and/or a petition to revoke probation. An ac?usation and/or peti~on to revoke

7 probation shall be filed by the Board within 15 days of the notification to cease practice. If the \ • I o

8 Respondent requests a hea.dng on the accusation and/or petition to 1·evok<:,: probation, the Boru.·d

9 shall provide the Respondent with a heating within 30 days of the request> unless the Respo11dent

1 O · stipulates to a later hearing .. A decision shall. be i·eceived from the Administ•·ative Law Judge or ·

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the Boara within 1 S days u11less good cause can be shown for the delay. TJ;ie cessation of practice . . .

shall not apply to the reduction ~f the probationary time period.

If the Board does hot file Epi accusation or petition to revoke probation within 15 days of the

issuance of the notificatid~ to cease pt·actic~ or does not pr9vide Respondent with~ hearing

within 30 days of a such a r~quest, the notification of cease pr~tice shall be dissolved.

16 · 3. BIOLOGICAL FLUID TBSTJNG. Rospondents~a11 immediately submitto'

17 bi9logical fluid testing, at Respond.ent1s expense, ll.pon request of the Board or its designee.

18 "Biological fluid teating" may include, but is not limited to, urine, blood~ breathalyzer, hair

19 . follicle testing, or similar drug screening approved by the Board or its desigriee. Pl'i9r to

20 practicing medicine, Respondent shall contract with a laboratory or service approved in advance

21 by the Board or its desi.gnee tllat wlll conduct 1·'andom, unannoilnced, observed, biological fluid

22 testing. The contract shall l'eq~e resul~ of the tests to. be transmitted by ihe laboratory or

23 serv.ice directly to the Board'or its designee within four hours of the results becoming av:ailable. -.

24 RespOlldent shall maintain this labo1·atory or service. contract during the period of probation.

25 A: certified copy of any laboratozy test result may be reo~ived iJ.1 evidence in any

26 proceedings between the Board and Respondent. . .

27 If Respondent fails to coopmate in a.random biological :f.luid testing pmgram within the

28 specified time frame) Respondent shall receive a notification from th.e Board or its designee io

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STIPuLATEn SETTLEMENT (I 1~2013·133225)

1 immediately cease the practice of medicine. ·rhe Respondent shall not resume the practice of

2 medich1e until :fhl~l dec~sion on an accusation and/01' a petition to l'evoke probation. An

3 accusation and/or petition to revoke probation shall be filed by the Boru.·4 within 15 days of the ·

4 notification to cease practice. If the Respondent request~ a hearing on the accusation and/or ' '

S petition to revoke probation, the Board shall provide the Respondent with a hearing within 30 ' .

6 days of the request, l.lllless the Respondent stipulates to a later heating. A decision ~hall be

7 received from the Ad!llinisti:ative. Law Judge or the Board within 15 days unless good cause can

8 be shown for the delay. The·cessa.tion of practice shall not apply to the redu.ction of the

9 probationmy time period, "

10 If the Board does not fil~ an accusation or petition to revoke proQation within 15 days of the

. 11 issuance of the notification to cease practice or does not provide Respondent with a hearing .. 12 within 30 days of a such a request, the notification of cease practice shall be diss~lved.

13 4. P~OFBSSIONALISM I,>ROGRAM (;ETHICS COURSE). WithiD. 60 calendar days of I

14 ·the effectiv~ date of this l)ecision, Respondent shall enroll in a professionalism program, that

15 meets the requirements of Title· i6, California· Code of Regulations (CCR) section 1358.

16 Respondent shall pa.rti,cipate in and successfully complete that program. Respondent shall

17 provide any imom1ation ~d documents that the program may deem pertinent. R~spondent shall

1·8 successfully complete the 'Classroom. cox_nponent of the p1·ogra.m not later than six (6) months.after

19 Respondent's initial enrollment, and the longitlldinal compone~t of the·program not later than the

20 time specified by· the·program~ but no later than one (1) year after attending the classroom

21 - component. The professionalism pl'Ogram shall be at Respondent~ s expense and shall be in

22 additio11 to the Continuing Medical Education (CME) requirements for i·enewal of licensm:e.

23 A professionalism p1·ogram taken after the acts that gave rise to 'the charges in the

24 Accusation, but' prior to the effective date of the Decision may; in the sole discretion oftlie Board

25 or its designee, be accepted towards the fulfillmen.t of this condition if the program would have 1

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

27 this Decision. ·

28 Respondent shall submit a certification of successftil con,ipletion to the Board or its

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STIPULA'l'BP SETTLEMENT (11·2013·233225)

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. . designee not lB;ter than 15 calendar clays after successfully completing the progrrun or not later

than 15 calendar days after the effective date of the Decision, whichever is late1·.

5. MONITORING- PRA_CTICE. Within 30 calendar days of the effective date of this

Decision, ~espcindent shall submit to the Board or its d<i'signee for prior approval as a practice

monitor(s), the name and qualifications of one or more licens~d physicians and surgeons whose

licenses are valid and in good stat1ding1 and who are prefei·ably American Board of Medical

Spe·cialties (ABMS) certified. A monito1· shall have no prior .01· cur.rent business 01· personal . . .

.relatio~bip with\Respondent, 01· other relationship. that could reasonably be expected to I

compromise the ability of the monitor to r~der fair and unbiased reports to the Board~ including

. but not limited to any form of bai1:erlng, shall be in Respondent's field· of p1-aotice) and must agree

. to serve as. Respondent's mo1rlto1·. Respondent shall pay all monitoring costs. . '

The Board. or ~tS designee shall provide the approvetl monitor with copies of the Deci.$ion(s)

and Aocusation(s)~ and a prnposed monitoring plan, Within 1~ calendar days of receipt of the

D~ision(s), Accusation(s),. aucl proposed monito1ing :plan, the monitor shall submit a signed I • I 0

statement that the monitor has read the D~cision(s) and Accusation(s), folly understands the role . {

of a monitor, and agrees or disagrees with the proposed monitoring plan. If the monitoi- disagrees

with the pr?posed-monitorittg plan, ,the mo11ito.1.' shall submit a revised m0nitoring plan .with the· ;

signed statement fo1· approval by the Board or its desi~e. .

Withiri 60 calendar days of the ef.fecti.ve date of this Decision, and continuing tbroughout . . . . . proba:ti~m, Resp.01~dent1 s practic~ shall be mo~ored by the appi·oved monitor. Respondent shall

make all records available for immediate inspection and copying on the premises by the monitol'

~t all times during business hours and sh_a.11 l"etain the l'ecords for the entire tenn of p~o bation.

If Respondent fails to obtain approval pf a monitor within 60 calendar days of the effective

date of this Decision, Respondent shall receive a notification from the Board or its design el? to

cease the practice of medicine within three (3) calendar days aftel' being so notified. Respondent

shall cease the practice of Yledioine until a monitor is approv~d to provide monitoring

responsibility.

The monitor(s) shall suh1uit a quarterly written report iu the Board or its designee which

7 STIPULATED SETTLEMENT (11H2013-i33225)

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'include~ an evaluation of Respondent's perfo1mance, indicating whethe:r Respondent's practices

are within the stru:ldards of practice of medicine, and wheth~r ~espondent is practicing ·medicine

safely, billing appropriately or both. It shall be the sole responsibility of Respondent to ensure

that the monitor submits the quarterly written reports to the Board or its designee within 10

calendar days after the end of the preceding quaiter.

If the monitor resigns or is no longer available, Respondent ~hall, within 5 calendar days of

such resignation or unavailability, submit to the Board or its design~e, for prlor approval, the

name and qualifications of a ;eplaceinent monitor who w~n be assuming that responsibility within

15 calendar days. If Respondent falls tb obtain approval of a replacement monitor within 60

calendar days of the resignation or unavailability of the monitor, Respondent shall receive a

notification from the Board o.r its designee to cease the practic~ of medicine within i:ln·ee (3)

calendar days after being so notified Respondent shall cease the practice of medicine until a

l'epla.c~ment monitor is approved .and assumes monitmfog responsibility.

In lieu of a. monitor~ Resp~ndent may p~icipati, in a ·prof~ssional enhan.cement program

equivalent to the one offered by th~ Physician Assessment im,d Clinical Edttcation P~ogram at the

University of California, San Diego School of Mec:Hcinei that includes, at nuqimum; quarterly

chart review, semi-annual practice assess'ment, and semiwannual review of professional growth

and education. Respondent shall participate in the professional enhancement program at

Respond.ent1 s expense during the terin of probation. \

6. NOTIFICATION. Within sev~n (7) days of the ef~ective date of this DeoisiolJ? the

Respondent shall provide a true copy of this Decision and Accusation to the Chief of St~ Ol' the

CbiefBxecutive Officer ~t every hospital whe1·e p1:ivi1eges or membership are extended to

Resp?ndent,. at any other facility where Respondent engages in th(! practice of m~dicine,

including all physician and locm;n tenens registries or 0~1er similar agencies, a11d to tho Chief

· Ex~cutive Officer at every insurance carrier whi~h extends malp]:'actice insurance coverage to

Respondent". Respondent shall submit proof of compliance to the B~ard or its designee witWn 15 .

calendar days.

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

8

STIPULATED SET!LEMENT (ll-2013·233225)

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1 7. SUPERVISION OF PHYSlCIAN ASSISTANrs .. During probation, Respondent is

2 prohibited from supervising physician assistants,

3 8. OBEY ALL LAWS. R~spondent shall obey all'f~deral, state _and local laws~ all rnles

4 governing the practice of medicine in California and remain in f11ll compliance with any' court

5 ordered crlmina.l probation, payments, and other orders.

6 9. QUARTERLY DECLARATIONS. Respondent shall submit quarterly declarations

7 under penalty of perjury on for.ms provided by the Board, stating whether there has been

g compliance with all the conditions of probation.

9 Respondent shall submit quarterly declarati.ons not later than 10 calendar 9-ays a.fie~ the end

10 of the preceding quartl,'lr.

11 .. 10. GENffi0.LPROBATIONREOUIREMENJ'S.

12 Compliance with Probation Unit

13 Respo~dent shall comply with the Board's p1·obation unit and all terrµs and condition~ ~f

. 14 this Decision.

15 Addre~s Changes

16 Respond~nt shall, at all tiinest keep the Board informed of Respondent's business and'

· 17 residence addresses, email addr~s (if avail~ble). and telephone numbQl', Cha;riges of such

18 addresses shall be immediately communicated in writing to the Board ox its designec. Under µo

19 oil'oumstances shall a post office box serve as an address ofrecoxCt, except as allowed by Btlsiness ·

20 and Professions Code seotio112021(b).

21 Place of~ractioe ·

22 Resp.ondent shall not engage in. the practice of medicine in Respondent,s oi· patient's place· '.

23. · ofresidence, unless 1he patient i·es.ides it1 a sldlled nursing facility or other shnilai· licensed

24 facility.

25 License Renewal

26 Respondent shall maintain a cUl'rent and l'enewed Cal1fo1nia physici~1's and surgeon's

27 license.

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1 Travel or Residence Outside California

2 Respondent shall imm~diately inform the Board or its designee, in writing, of travel to any

3 areas outside the jurisdiction of California which lasts, or is pontemplated to tast1 1nore than thirty

4 (30) calendar days.

S In the event Respondent should leave the. State of California to reside or to practice

. 6 Respondent shall notify the Board or its de~ignee in VVJ:iting 30 calendar days prior to ~he dates of

7 departure and retu:J:11. ' .

8 11. INTERVIEW WITII TIIB BOARD OR IT~ DESIGNER. Respondent shall be

9 available i11 person upon request for interviews either at Respondent's place of business or at the

Io probation unit office, with or without pr!.or notice throughout the term of probation. . .

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

· 12 its desiguee in writing within 15 calendar. days of any perio4s of non-practice lasting more than

13. 30 calendar days.and within 15 calendar days ofRespondent~s return to practice. Npn-practie,e is

14 defined as any period of time Respo11dent is not pi-acticing medicine in California as defined in.

15 Busiries$ and )?rofessio~s Code sections '2051 and 2os2 for at least 40 hours in a calendar month

16 in dire~t patient ~ar~, ciinical acti~ty or ~eaching, or other activity as approved by the Board. All

17 thne spent in an h1tensive training program which has be~n appro,ved by the Boru:d or ~ts designee

18 shall not ·be considered non.-practice. Praoticln.g m~dicine in another smte of the United States or ( .

19 Feder81. jurisdiction while on prJbation with th.e medical licensing authority of that b1ate or

20 jurisdiction shall 1iot be considered non-practice. A Board-ordered suspension of practice shall

21 not be considered as a period ofnOll·practice.

22 In the even~ Respo11dept's peliod. of11on-prac1ice while on probation exceeds 18 calendar ·

23 ino:tr'*1s, Responde~t shall successfully complete a clinical training program that meets the c~·it~1fa

24 of Condition 18 of the curre11t ve:i:sion of.th.e Bo~d·s "Manual of Model Disciplinru.'Y brde1·s and

25 Disciplinary Guidelinesn p1for t~ resuming 1he practice of medicine.

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

27 Periods of non-practice will not apply, to the reduction of the pmbationary te1·.m.

28 Periods ofnon"practice will relieve Respondent of the responsibility to comply with the

10 STIPULATED SE'I'TLEMENT (l l-2013·233225)

t. probationary terms and conditio11s with the exception of this condition and the following terms

2 and conditions of p1·cibatioil: Obey All Laws; and General Probation Requirements. \ '

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

4 obligations (e.g., restitution, probatio1i costs) not later than 120 calendar days prior to the

s completion of probation. Upon successful completion of probation~ Respondent's certificate shall

6 be fully restored.

7 14. VJOLATION OF PROBAT~ON. Failure to fully ccimply With any term or condition

8 of probation is a violation .of probation. If Respondent violates probation in any respect, tlte · .

9 Board, after giving Respondent notice and the opportunity to' be heard, may revoke probation and

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

11 Probation, or an Interim Suspensiotl Order is filed against Respondent during proba:ti~m, the

12 Board shall have. continuing jurisdiction until the matter is fin,al, ·and the period of p1·obation ·shall

13 be extended until the matter is final.

14 15. · LICENSRSURRENDER. Follow~gthe effective date of this Decision, if

15 Respondent oellSeS practicing due to retirement or-health reasons O:t' is otherwise unable t6 satisfy

16 the terms and conditions of probation, Respondent may request to suiTetider hi$ license. The

· 17 Board reserves the right_ to .evaluate Respondent's request and to exercise ,its discretion in '

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

19 and reasonable under the circUlnStances. Upon formal acceptance of the surrender, Respondent

20 shall within 1 S calendar days deliver Respondent's wall~t and wall certificate to the Board or its "

21 designoj.:) and Respondent shall no longer practice medicine. 0

Respondent will no 10,nger be subject

22 to the tmms fllld conditions of probation. If Respondent re~ap);llies fol' a medical license, the

23 application shall be treated as a petition for reinstatement of a revoked ce.rlificate.

24 _ 16·. PROBATION MONITORING COSTS. Respo11de11t shall pay the cost& associated . '

25 with probation mouitoriug each and every year of p1·obation, as designated by the Board, which

26 may be adjusted on an ammal basis. Such costs shall be payable to the Medical Board· of

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

28 . year.

11 ~TIPULATED SEITL?MENT (11-2013~233225)

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Exhibit A

Accusation No.11-2013-233225

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KAMALA!:>. Hli.Rrus Attorney General of California JUDIT.li T. AL VAMDO Supervising Deputy Attorney General CHR.lSTrNBR. FRIAR · . Deputy:Attot.ney Oenei:al State Ba:i· No. 228421

California .Departrnent of Justice 300 So. Spring Stree~ .Suite 1702

· Lus .Angeles, CA 90()-13 Telepbonr~: (2q).897~6404 Facsimilt:<: (2..13)-897-9395 Attorne:;;sfoi· ComplainaJ:lt

l31£,'J;i'QRE TRE . 'MEDIC.Al'., BOAl.tO OF CALl.RO'.RNl.A

DEPARTM:ENT·OF CONSUMER. AFFAIRS · S":fA'l'E OF CALIF.ORNIA

In the Matter of ~e Accusatiol,l Against:

KEINQ ANDRE RUTHERFORD, MJ). 9449 Imperinl.liwy ·

· ."QownoY,1 CA 90242 .. PbyslciakJ:~s and Snrgeon~.s Certificate No: A ·804iJ21

· Complainant allege~:

Case No. H .. 2013"233225

. . A .C C Q SA 'l' I 0 N

PARTJ,ES

1. · Kimberly Kirchl);l~yer (Complainan~) brmgs this Accusation solely, in her oftioiru

capacizy as the Exe1mtive D.ireoto1· of tile Modi6al Boel'd of California. Department of Consumer

22 . Affairs. . ... i· ~

23 2. On. or llbout Soptember 6, 200~. the Medi.cal Board i;>f..Califomia.issued Physfoima . . 24 and Surgeon1s Certificate Number A &0432 to KeindAndre Ruthe1'ford1 M.D. ((-tespondent). That

. . 25 license was i? ef!e~t nt all tll'lles relevant to the.ah!U'ges brought herein ~.d will ·expire 011 Octobat

26 3'1, 2015, \tnless renewed.

27 ·111

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JU:J.USDIC'l'ION

3. · 'I'his. Accusati_on is 'bwught before the Medical Board of Califom.ia (B.o:ml),

Depatiment of Consum.er Affuirs, under the tnithority of the fo!lowiti.g l!iWB· All section

referl.'lnqes ate to the Busjness and Pro!osslons·Code unless·otherwJ.se indicated.

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

· "Tbe boatd shall .talce aotlon against any license~ who is clw.tged with unpl"Ofessional

contlu.ct. In addition to other provisions of this .m.ticle, .unp1·ofessional conduct in,:J.udes, but.ls npt

'limited to, the following:

"(a) Y.iolating 07· attempting to viol~~. dil'ec~y oi in\lh-eotLy, ~sistjng Jn 911 l}b ettijig the

violation of, or cons]'lirjng to Yi.elate.any _provision .ofthis chapter.

H " ''" '.

5. Section 22391 -su.bdhrision (e..)1 of the Code states:

1'(11) The use or prescribing fo1· or adnllnurte1ing to himself ot herself, of any .QOntr~lled

substance; or the use of any of. tho d~gexous dl\lgs specified fu S·ecti.on 4022, or of 1alce!1olio

heveragea, to the ex:tmrt1 01· in such a tnanne:r a8 to be da.ngero\lfl Qr injud.oua to 'the licensee~ '9X'te. I • J

any .otb.er.pea:son 01· to the ·publlo. or to the extent.:tha.t auc1l. -u'ai:i Jrnpaits the a:bility Qf the licensee ' .

to practice medicine s~fely or rrto:i:e -than one misdeme,ano;r.9r a,ey reloll:Y involv.iug the us.i:i1

CQt:J.SUmptiOJli or self.,a.drnimstratiOn Qf any of the SUbstanceS t~forxad t~ ,Jn this sect!.on, Or mt)' .. -. '

combinatlon tl1ereof,-constitute& unpr9fessional conch1~. The recm:.d of the 'COn".l.~ctio~.is ' . .

C(lO(llUSiVe evidence Of $UCh ,m,professbmru COlldUCt: II

6, Seotion 2280 of the Code states:

A"t'f o licensee slmll.practice medicine while under the intluence·of m:1y narcotic drug or

ale oh nl to such ex.tent as to hnpah· his 01· her ability to conduot ~e yractice of medicine· with . . . safety to the public and his or h~ patients. Violation ofthls aeGtiOn constitutes unprof~sslon~l

oonduct and is a m.i.Bdemeanor.©

Ill

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li'ffi.S'r CAUSE '.FOR nrscIPl,lNE

(Dangarous Use of Alcohol)

7. H.espondent is subject to disoip.linary u!:<tlon under Code sections 2239,·su.bdiv:ision

(a.), and 2280, In that R~sponden~ oonsumed. !llcohol in a. manner dangefO'Us to others and to the

ex.te~t thatit impaired his ability to conduct -«ie practioe of me~oine wlth spfe~ to .the';public and • J

his patients. The oi.rclunstances ate as follows:

8. On or about the evening of-Satu.rday1 June 81 2013, atappxoxJ:nately 6:00 p.m.,

R.eS"pondent air!ved for liis shift at the Kaisei; Pe1mancnreDowney Medi~al Cenler C"Kais~r11}1 • located· in Do:wney, Califomi!Jo wher~ he was employed a11 an Intemal Medicine hoSpitalist. A

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hospitnliat is responsibl~·for tidmitting and treating patients that an emergency room :physician~as

d,eeined JiccesBm:y for .a?mission ~9r further treatment

9. When R:esponder:i.t ani:v.etl. at Kaiser f.or his-shift, the1•e were no patients waitmg to ae~

13. him and he went to a call r~o0110 iest: •.

14 l·O. Conimenoing at apprax.imately.9i00 p.m,, hosplW.1 staffbeg1111 l:'aging and otherwisa

15 · . trying to oontaot the Respondent becaus~ there were patien.ts awaiting 'car~ whe he·naetled to

·16 admit to the hospital. frcim the emerg6llcy room,

17 11. .. For appro~mately :f.wo (2) hours Respondent failea'to respond to llllY ofihese

I 8 at.tem,pts at locatlllg 'him.

· 19 12. At npproximatel~ 11: lS p.m,1 ·and after extensiv.e and loud knocking1 anothex daQtot

. 2.0 o~ duty and a seow:lty guard o:pened the door of a looke<t'call tbo.m where they found Respondent.

21 · sleeping.

1.3, Respondenl had difficulzy wiling 'U.P·

14, Mnltiple l<.ai..~er staff meru.bers observed Respo:ndent1 s preath tQ smell of alc.dhol and

Respondent to exhibit other·signs of-intoldcatio~, .

15. Respondent admits that he const~ed alcohol earlier that day.

16. Jn response to their suspicion that he was .intoxicated. Respondent was i:e:peatedly told

by hospital staff members that he wi;>uld need to go to the emergency room to be evaluated for

'alcohol and otb.ci· snbstance use be.fox~ treating a:iiy patlents that night.

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Aqi:usatlon

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17. Respondent repeatedly refused to be tested.

18. Respondent .was nQt allowed to aee pati~ts that :night and w.a.s told 'thnt he coi1ld

either be e~alU~ted, COntinue t(l rest fa a. call room O):' the hospital staff' 00'1.tld !lrrru+ge fC>l' a taxi to

ti;ike him home. . .

19. · Respondent ~greed_ to 1ake a taxi ]tome. .Respo11dent, h0wever., did not ~eave the

hospital "in a taxi, but ~nstead left in his own vehicle., which he.drove,

20. · R.espondent!s oonduot, as set forth in :pE1mgraphs 8ft19, h1clusivi:r~bove, dtm:\pnstrates

that Respondent con13umed aloohol i,n. a.mann((r .dangetot1s to others and to the ex:t:ent that it . - . hnpa}red hfa abi'lity to oonduct the pra.otfoe o:f tnedicme with safecy._ Speoifica1ly1 Respondent

reported for hi11 ahift at Kais~r· while under the in:fluenOe. of a1cohol .Md wat; unable to .admit ·any

patlents in 11~ed of om:e' frQm the emtll-gency roo~ to the hoi~piial that night becauss he was asleep

-.in a 'ca1I rooi:n ~d co~ld not be 1oca:ted by. hospital staff fOF.hoUrf:l, R(lspondon.t is su~ject ta

disciplinaey .ac.1ion i~der Code sections 2W9·, subdivision (a), .a.1d 2280 ..

S:ECOND eAUSE FOR ))lSCIPLlNE

(Unpl'Ofessional Conduct)

21, The allegations set ;forj:h in paragraphs .7-20 are her~by :c~eged anc! 1noo1;po:rated as

though 8Ct forth fully hu:rehl.

2i?... Respondent is a.ubjeot to disoi~~ary a_otion tmdm- Code sections 22.34, su.bd~vision

(a), 2239, suf?divlsio~ (a), and 2280. -pie circumstances are as foilowsi . .

23. -Responde11t anived at"l(aiser foihia sahedttled shift on Jm:ie 8, 2:013, but could npt

admit or L1·eat a.qy patients because h(\\ could not ·be located by ho~_pttal staff for ~pprmdma.telf two

(2) ·hours and w~en he waslocnted1 ~e was obs~ed. to. be under th~ ~uen~e of alooh.ol, -and "the

hospital maff forbade him f-roxti treating MY patients unless he under-Went an evaluaticm for

alcohol and other subs.tance use, which he refu11ed to do.

24. Respoµdent)_s Mt~ nnd/Ol' omis~i?~S as set forth i:n :pa.ragr~phB 21·23, faclusive abovaJ

whether proven individua1ly,jo1ntly, or in any comhinatlon·thereof, oo.nstitute unprofessional

~ol'.lductpursuant to Code sectirms 2234, subdivision (a), 2239, subdivision (a), and 2280,

28 · Thc~re.fore, caus<? for discipline exists.

4 Acousation

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1 DISCIPLlNA'.RY .CONSID:EU TIONS

2 25. To detemtlne the clegr~e of diaci:pli,ne, if anY., to be i~posed on Rtlsponclent~ 3 Complainant alleges that on o:r about June,28, 2010, '!he 'Board issued lles_pondciu.t Citation No.

4 . 20-201 '0-207789 in !iQCOl'danoe with Code sections' 125'..9 for vlolation of.Co~ sectiOJl 2234 . '

s (unprofessio:nal conduct for failing to report a misdemeanor oonvfotlon in violation of Code

6 seation 802; 1). S.:pecifioally, Respondent failed to re,J?ort to the Boro:d, .in writhtg wi.tbin thirty (30)

7 days, a ntlsdemeauo.r' CQnvictio11 fo1· vio~a:tlon·ofVehicle Code secti.on 23152(!\)'(dtlvin.g\ljl.dor the

8 influeuc~ of alcohol), to which he plad guilty on or about May s •. 2010. 'rhe Bmar<l fined

$1 Resppndent $750.00. That citation is now final 1111d is inoorporat~d by reference.a~ if fully set

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11 PRAYER

12 WHER:EFORE,.Complainant request's 'tha.t.aheariµg.be.held <:in the,\11atters hereiA.allegad,

13 . ·and that following tbehem:ing1.the-Medioaf.Boarcl o.f<Balifornia·issue- a decision: .. · •

14 1. Revoking or suspending Physician's ;met Surgeon's Certific~te.Nµm.be1· b 80432:~

15 Issued to Keino Andl'e R\ltherl'or.d, M.n.;·

16 ' 2. ·Revokiqg, sµspendi.ilg ~1' denying ap,P:roval of l<eino A.XldreRlltherford, M.D.'s .

· 17 authority to SUperviae·physioia111s asaistanta, pm~t to section 3527 fllftb.e .. Co~

1 B · 3. Ordering Kei110 Andre Rutbflrfcird, M.D •. to.pay the Medical Boa.rd ·?f·.Clllit'o1nia, if

19 plaeed onp.robation, '!he qosts of:pl'Obatio.n monitorln.g, £m.d;.

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DA'IED:

LA20141il26J1l 61258313.i:loo

5 . A.tcusatl on