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BEFORE THE ARIZONA MEDICAL BOARD IN THE OFFICE OF ADMINISTRATIVE HEARINGS In the Matter of: ) ) GABRIEL U. OGBONNAYA, M.D.

) Holder of License No. 32142 ) For the Practice of Allopathic) Medicine In the State of ) Arizona, ) ______________________________)

No.:

10A-32142-MDX

Reporter's Transcript of Proceedings Phoenix, Arizona September 1, 2011 8:41 a.m. Volume V

PREPARED FOR: HEARING ARIZONA MEDICAL BOARD (COPY) Reported by: DEBORA MITCHELL Arizona CCR No. 50768

Hearing 9/1/2011

978

Reporter's Transcript of Proceedings, taken on September 1, 2011, commencing at 8:41 a.m. at THE OFFICE OF ADMINISTRATIVE HEARINGS, 1400 West Washington Street, Suite 101, Phoenix, Arizona, before Debora Mitchell, an Arizona Certified Reporter, in and for the County of Maricopa, State of Arizona.

ADMINISTRATIVE LAW JUDGE -- Brian Brendan Tully

COUNSEL APPEARING:

On Behalf of the Arizona Medical Board ASSISTANT ATTORNEY GENERAL Ms. Anne Froedge 1275 West Washington Phoenix, Arizona 85007-2997 anne.froedge@azag.gov

On Behalf of the Respondent Ms. Holly R. Gieszl THE GIESZL FIRM 2375 East Camelback Road, Suite 500 Phoenix, Arizona 85016 holly@gieszlfirm.com

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I N D E X WITNESS LISA WYNN DIRECT EXAMINATION BY MS. GIESZL CROSS-EXAMINATION BY MS. FROEDGE REDIRECT EXAMINATION BY MS. GIESZL 983 1067 1077 PAGE

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THE COURT:

This is Docket No. 1A32142-MDX

before the Office of Administrative Hearings in the state of Arizona in the matter Gabriel U. Ogbonnaya, M.D., holder of License No. 32142 for the practice of allopathic medicine in the state of Arizona, Respondent. This matter is on for further hearing today, September 1, 2011, by Administrative Law Judge Brian Brendan Tully for the Office of Administrative Hearings. The parties are present. We are also

scheduled for tomorrow. As I mentioned at the last hearing, we were originally scheduled for 1:00. My afternoon hearing -So

my morning hearing is still on, the nursing case.

if that is a problem, what we'll do during the break is I'll see if anything has opened up to where I can get somebody to take the morning case. I think we were

expecting that we would have the hearing beginning in the morning. MS. GIESZL: We were but obviously we will deal

THE COURT:

Okay.

I did give you notice.

And

the reason I didn't get back to you is I kept waiting to hear. In fact, what we're going to do is we're I'm going to see if
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going to take a brief recess.


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somebody can call to find out if it's going to be a default. Is that all right? MS. GIESZL: That is fine. And we actually

have one other -- Ms. Froedge and I have been talking about order of witnesses and time of testimony. today Ms. Wynn is the only witness. And

Tomorrow, because

of the witnesses' schedules, and we have Dr. Potts, who is back and will testify live, and one final medical assistant from Dr. Ogbonnaya's office, so we only have two. I anticipate it will be half a day. MS. FROEDGE: I anticipate probably calling So that would be like So I don't know, half a

Celina Shepherd on rebuttal. three witnesses and closings. day. MS. GIESZL: I forgot. THE COURT:

Half a day won't -- that's right.

Will Executive Director Wynn's

testimony take a full day today? MS. GIESZL: It will not, but Dr. Potts and my Dr. Potts is

witness were available only on Friday. actually out.

And he may be back in town today, but he

is only available Friday. THE COURT: earlier. MS. GIESZL: It does. We thought we would have
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That changes from what I was told

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all three.

The medical assistant was scheduled, but

her practice had to terminate a medical assistant very unexpectedly, and there was nobody to cover. THE COURT: recess. Let's see if we can take a brief

And just for the record, this is the public Let me go see if I can go work

portion of the record. some magic right now. MS. FROEDGE: MS. GIESZL: THE COURT: going off the record.

Thank you. If not, we would do a day later. Let's get this wrapped up. We're

(Recess from 8:45 a.m. 8:50 a.m.) THE COURT: We are back on the record. This

matter will be scheduled for further hearing tomorrow, September 2, 2011, at 8:30. I have made arrangements Okay.

to take care of the nursing case.

Ms. Gieszl, you may continue. MS. GIESZL: We are calling at this time

Ms. Lisa Wynn, who is the executive director of the medical board. THE COURT: Do you think Director Wynn will be You need to

discussing anything that's confidential? move that microphone in front of you. MS. GIESZL: so.

I probably -- no, I don't believe

If we use any patient -- we may use patient


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designations. confidential.

But no, I don't believe we need to be

THE COURT: section.

Then we will remain in public

Good morning. THE WITNESS: Good morning.

LISA WYNN, called as a witness herein, having been duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MS. GIESZL: Q. A. Q. Good morning, Ms. Wynn. Good morning. Let's start by getting a little background.

How long have you been the executive director at the Arizona medical board? A. I've been the director a little over three and

a half years. Q. All right. Let me understand a bit about what Tell me briefly

your job is and what you supervise.

what your job as executive director entails. A. I report to the board of -- the medical board,

which is 12 people, eight physicians and four private


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public members that are appointed by the governor. I report to there.

So

And I supervise the medical board

staff, which is about 38 individuals from the different units. I am responsible for budget, for our

performance measures, personal matters, board operations, oversee the investigation unit, the licensing unit, medical consultants, general operation of the medical board. Q. All right. Thank you. When you said the

investigations unit and I assume -- and licensing, I assume that encompasses what we would maybe call discipline? A. Q. Yes. Thank you. Of the eight physicians on the

medical board as of last June, June 2010, was any member a psychiatrist? A. Q. No. The board has in the past had psychiatrists who

are members, correct? A. Q. I am not certain, not since my tenure. All right. In overseeing investigations, do

the investigators report to you? A. They do not. They report to the investigation

manager, Pat McSorley. Q. Pat McSorley. All right. And then is there

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also a quality assurance manager at the board? A. Q. No. No. All right. Are you responsible for

interacting with the legislature on legislation that affects the board? A. Q. A. with him. Q. So it is fair to say that you are familiar with Yes. Do you lobby directly or is there a lobbyist? We contract with a lobbyist and work closely

the statutes that govern the board, the medical board? A. Q. A. Q. Yes. You attend all of the board meetings? Yes. And you make recommendations to the board as to

case dispositions that are before it? A. Uh-huh. The staff makes recommendations to a

SIRC team, which is an independent review committee. Q. A. And then you present those to the board? They are presented by staff. They are not

recommendations from me per se, but I certainly support the staff and am somewhat familiar with cases, many cases before they come before the board, not all. Q. All right. And is it fair to say that any

staff recommendation that goes to the board has your


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stamp of approval on it? A. I haven't personally reviewed every SIRC There is

recommendation prior to a board meeting.

another quality review process in place for that. Q. All right. And what is that other quality

review process? A. Our SIRC team includes a representative from Our chief medical

the Attorney General's office.

consultant or another medical doctor who is his designee, Pat McSorley, and our board operations managers. So that group collectively along with

administrative staff make recommendations for discipline. And those are made available to the

physician and their counsel before they are presented to the board, so there is an opportunity for review, and that physician can request that I take a look at it prior to the board meeting. Q. Okay. So before any case goes to the board, it

goes to a SIRC, which makes a recommendation for discipline if any; is that correct? A. Q. A. Yes. All right. Yes. And of course we are talking about a

regular disciplinary case that is going to the board absent any summary action.
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Q.

Okay.

Now, is the SIRC committee that you just

described, are all employees of the board with the exception of the Assistant Attorney General -A. Q. correct? A. Q. That's correct. So who makes the decision to take something to That's correct. -- who might be there to advise; is that

the board as a summary action? A. When a decision is being made, that is very It is something that as we are

much a team effort.

getting information, we are relying on input from your Assistant Attorney General. But actively involved

would be myself, the investigation unit manager, board operations manager, and my deputy. Q. Okay. Is it fair to say that nothing goes to

the board as a summary action without your approval? A. Q. Yes. All right. So you have to approve any matter

that goes to the board for a summary action? A. Q. Yes. All right. Now, let me switch and get you to Has the board to date

focus on Dr. Ogbonnaya's case.

received a patient complaint against Dr. Ogbonnaya for any of the patients that are included in this case?
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A.

I do not know.

I am not intimately familiar

with the investigation materials, so I don't know all the sources of complaints. Q. Is it your understanding -- well, then, how did

the complaint that caused you to take Dr. Ogbonnaya's case in a summary action to the board on June 15, 2010, arise? A. arrest. Q. arrest? A. We saw information in the newspaper and on the All right. How did you become aware of his Through our awareness of Dr. Ogbonnaya's

Q. A. Q.

Who saw it? Members of our staff. All right. So somebody sees on TV or reads in

the newspaper that a physician has been arrested? A. Q. Uh-huh. And they come to work, and they say -- what do

they do next? A. Well, we collect the information. We contact

law enforcement and get -- of course this isn't just directly happening through my office, but through investigations, we collect whatever information is available to make a determination of whether or not any
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summary action should be considered by the board. Q. Okay. Now, when you are considering whether or

not any summary action should be considered by the board, what criteria do you use? A. We are making an assertion -- we are trying to

determine what the risk to the public would be should the physician continue to practice medicine unrestricted, and will the public be better protected if there is either suspension of the practice of medicine or some restriction of the practice of medicine. Q. And you do that based totally on media reports

and information that you -- what else do you use? A. We make -- the information available to us is

from whatever sources we can -- we get the information preliminarily and from whoever the investigators can collect information. Q. Okay. Now then, when Dr. Ogbonnaya was

initially arrested on June 9, there were no patients listed in the arrest. So how did the board determine

based on that arrest what issues existed as to the risk to the public? A. The allegations of harm to those patients, even

though at that point they were unknown to us, caused us to make a determination of whether or not a restriction
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would better protect the public.

And the names of

the individuals were not necessary to determine whether or not the allegations proved a threat to the public. Q. Okay. So now let me ask you this. Did you

know how many patients were included in the initial case brought by the Mesa Police Department? A. At some point we did. We preliminarily knew

what was available through the media, and then we knew what was available through the police report, and then we knew what was available as we continued to investigate. Q. But at what point did you know the number of

patients and the nature of the allegations? A. Q. I don't know. All right. Is there anything in writing that

would tell us that information? A. Probably the investigation report that was

preliminarily presented to the board would indicate how many alleged victims we were aware of at the time we brought it to the board. Q. A. but -Q. And I believe it has in the -- well, it is
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And that was on June 15th initially, correct? I don't have that document in front of me,

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Exhibit 39 of our exhibits. there? MS. FROEDGE:

Do you have our exhibits

She doesn't have your book.

don't think there was an extra. MS. GIESZL: Okay. Well, I will give you I'm sorry. I didn't

Exhibit 39 out of my book. realize that.

I'll have to get that to you. I have them.

THE COURT: BY MS. GIESZL: Q. meeting. A. Q.

Those are the minutes from the June 15th So does that look familiar? Uh-huh. Okay. Can you tell from that set of minutes

which patients the board -- and use their initials -determined to take action on, on June 15? A. In just scanning it, I am seeing two sets of I don't see

initials as I'm just scanning through it. anywhere where it's quantified. Q. A. Q. Okay. And those two initials are?

KH and AT. All right. Now, you said that a report is

prepared and given to the doctor in advance of the board taking summary action against him? A. In a normal disciplinary action, there is a

SIRC report that is provided too, because that's when


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the investigation has been completed. is initiated before the investigation. Q. All right.

Summary action

So there is nothing in writing that

is provided to the physician before the summary action to explain to the physician the reason that the board is going to take summary action; is that correct? A. There is no SIRC report provided to the That is correct. In looking at the record, I don't

physician. Q.

All right.

find a written report that Dr. Ogbonnaya was provided prior to the meeting at which summary action was taken that explained the allegations on which the board was acting. A. Q. Am I correct? Yes. And when the -- you said that there is a team

effort to make a recommendation as to whether to take a summary action. In Dr. Ogbonnaya's case, is it fair to

say -- well, strike that. You also said that there are not set criteria that the team uses to decide what -A. I don't remember saying there's not a criteria.

I remember saying we try to determine the risk to the public. Q. A. Okay. And there certainly is not any kind of
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measurable set of things we weigh or grade.

But the

intent is to make a determination of whether summary action will better protect the public than the absence of a summary action. Q. Okay. When you do that, are there any

guidelines that you use, any written guidelines? A. Well, we have a policy about the process, but

really, I mean, it's a matter of judgment about how we can most effectively protect the public. Q. Okay. And is there a physician who

participates in that team effort? A. Q. A. Yes. And what is his or her specialty? Well, currently our chief medical consultant is

a surgeon, and one of the medical consultants internally that does a lot of our interviews is an internal medicine physician. Q. A. Q. analysis? A. Q. A. Q. No. Any training in forensic interviewing? Forensic interviews, I'm not sure -Interviewing.
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Okay.

And that's Dr. Coffer?

Correct. Has that team had any training in forensic

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A.

Not to my knowledge.

We have some

investigational training that many of our investigators have gone through. Q. Okay. Has that team had any training or

education in the epidemiology of sex assault allegations? A. Q. Not to my knowledge. Any training in how cases about physician

misconduct involving sexual misconduct against patients are -- have been disposed of? A. Q. right. Not to my knowledge. All right. And that wasn't phrased exactly

What I'm trying to find out is whether the team

has had any education or training to understand how many cases involving allegations of sexual misconduct against physicians prove true or false. A. I don't know the specific training the

individual staff members have gone through other than experience, but keep in mind summary action happens prior to the interview, to the investigation being completed. Q. Exactly. And that is why I am trying to focus

on the training and skills that the team that makes the decision to seek summary action has. trying to -- let me just ask this.
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Okay?

So I'm

As executive

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director have you had any special training or education for the team that makes the decision to seek summary actions on the subject of allegations of sexual misconduct against physicians? A. Q. No. Okay. Has that team that makes the decision or

recommendation regarding summary action had any training or education that would be -- strike that. Has the team that recommends whether to pursue summary action had any sensitivity training regarding human bias based on race or ethnicity or gender? A. Q. A. Q. I do not know. You have not provided any? I have not provided any. Okay. In the last three and a half years at

least, the team that recommends summary action has not had any sensitivity training? A. Q. No. Correct.

The team is aware at the time they are

considering summary action of an arrest, correct? A. Q. Yes. And Dr. Ogbonnaya's case you were aware that he

had been arrested? A. Q. Yes. And when did the team meet to recommend whether
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to pursue summary action? A. Those meetings kind of occur as information It is an ongoing process, and that

becomes available.

is part of what I believe ensures quality, is we're taking the time, and as information becomes available, as we kind of work out that there's enough risk, enough alleged risk to the public, to warrant any kind of summary action on the part of the board prior to the completion of the investigation. Q. A. Okay. So we're meeting on an ongoing basis, having

discussions, making a determination up until the point we begin determining a time that the board could meet. Q. A. Okay. And we feel strongly enough that they would

want to consider it, that we schedule it with the board. Q. Okay. Now, there is a time frame involved You said you

here, which I want to come back to.

are -- one of the reasons you think it assures quality is you are looking at whether there is enough alleged risk? A. Q. Correct. What criteria, what guidelines does the team
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use to assess alleged risk? A. area. Q. A. Okay. Do you have any -- I'm sorry. And you want to give That's the biggest challenge in any regulatory

It is a risk analysis.

weight to the importance of the physicians to practice, to have due process, and you want to weigh that against the protection of the public. And it is what we do all

day, and we've got people with a lot of experience, whether it's orthopedic surgery, drug and alcohol addiction, sexual misconduct, psychiatric issues, endocrinology cases, whatever the issue, the challenge remains the same, and that is to weigh the due process of the physician and their patients' ability to access care with protection of the public. Q. Okay. Now, on the team that recommended

summary suspension as to Dr. Ogbonnaya, there was not an individual with expertise in sexual assault, correct? A. Q. A. Q. Correct. All right. No. Okay. But again, let me come back. It sounds There was not a psychiatrist?

like -- and correct me -- it sounds like the team that is looking at whether to recommend summary suspension
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of -- when you have a physician who has been arrested, it sounds like that is something that is regarded as fairly straightforward; is that correct? MS. FROEDGE: not clear. Objection. The question is

I would ask her to explain what is

straightforward. BY MS. GIESZL: Q. Well, I'm trying to -- I understand that you

don't have written criteria, a written formula for making risk assessment. And so you told me that you

were using judgment; is that correct? A. Q. Absolutely. All right. I assume that in this case where a

physician has been arrested, that presents a more straightforward analysis than when you are trying to assist potential risk to the public. regard it? A. Not necessarily, because it would depend on Is that how you

what the physician was arrested for. Q. Okay. In this case a physician is arrested for

alleged sexually inappropriate touching of two patients. Okay? Now, in your mind, is that a

straightforward issue as opposed to a physician who has failed to use some new technology to diagnose early breast cancer?
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A.

There is certainly a higher risk to the public.

I don't know that one is more straightforward than the other, but there's certainly a greater potential risk to the public in one over the other. Q. Well, if it's not more straightforward, then

why wouldn't the board have somebody with some expertise in psychiatry or sexual assault sex cases involved in the team decision? I was assuming that was

why you considered it more straightforward. A. process. Q. A. Okay. Summary action is to ensure the protection of Those experts are involved in the investigation

the public while the investigation proceeds. Q. A. Okay. Which is a very, very small percentage of our We have 300 investigations open at any

investigations.

time, and it's a very small percentage that ever have a recommendation for summary action. Q. Okay. Well, when you are applying your

judgment to the decision to seek a summary suspension, and you don't have a case where you can apply a standard of care like you might if there had been botched surgery, what parameters do you use to assess whether there is enough alleged risk to the public to
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seek a summary suspension? A. Q. A. What parameters do we use? Yes. The nature of the allegations, the number of

allegations, the nature of the physician's practice, there are many. There's many factors. I don't know if

that's really the parameters, but there's many factors that are considered. Q. Okay. So in this case the nature of the

allegation was sexually inappropriate touching, correct? A. Q. A. Q. Yes. All right. Yes. All right. Did the committee look at any And there were two patients?

issues related -- the team that was recommending summary suspension, did the team look at any issues regarding secondary gain by these patients? A. I don't know. I don't have specific

recollection. Q. Well, you would remember if somebody had raised

the question of shouldn't we consider whether these patients are alleging this against this doctor to get something out of him or somebody else, right? A. Yes.
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Q. right? A.

If that was considered, you would remember it,

If there was a clear indication that would

cause us to think there was a higher probability that the allegations were false, that is something we would consider certainly. Q. Okay. And what do you use to determine

whether -- as to Dr. Ogbonnaya, how did you determine the probability that these allegations by these two patients were true or false? A. Again, all that would occur more in the But in terms of getting a

investigative process.

summary action, we are looking at all of the things about the case, including the arrest, including the nature of the specific allegations by the victims, to make a determination as to whether or not the public would be better protected in the interim by the summary action. Q. All right. But you said -- that is not

what I asked.

I asked how did you determine, using

your own words, that these were more likely true than false? A. Q. A. That was just the overall judgment of the team. Okay. Based on the information we had available to
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us. Q. Okay. So you assumed at that point based on

the fact that Dr. Ogbonnaya had been arrested that he probably had committed the acts for which he was arrested? A. Based partly on the arrest and the nature of

the allegations, we determined the public might be better served if the board considered summary action. Q. All right. But I need to parse that a little

bit, because if you have decided -- if you had determined using your judgment that he likely did not commit those allegations, the conduct that was alleged, you would not have gone to the board and said revoke his license -- suspend his license, correct? A. Q. Correct. Okay. So if a patient said my doctor entered

my house through my microwave in the form of a ghost last night and sexually assaulted me, the committee, the team would likely say that is probably not true? A. Q. A. Q. Correct. All right. Okay. Now, in this case there were two patients that That is pretty straightforward?

alleged that Dr. Ogbonnaya had sexually inappropriately


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touched them.

And they had been arrested? They had been arrested? Dr. Ogbonnaya had been arrested.

THE COURT: MS. GIESZL: Thank you.

Who's on first?

BY MS. GIESZL: Q. When the team looked at that, the team must --

am I correct that you considered whether in your judgment he likely committed the alleged offenses? A. Q. Yes. Okay. Now, you are aware that when you are

arrested for something, you are presumed innocent? A. Q. Yes. And you are aware in this case, in fact, that a

judge in superior court sent the case back because there was insufficient determination of probable cause? A. Q. A. Q. A. Is that a question? Yes. I was not aware of that. You were not aware of it. Okay.

Keep in mind I am not actively investigating And now that the summary action has been

this case.

completed, there is an investigative team investigating it. Q. I understand. But from a quality standpoint

and from a fairness standpoint, I am trying to


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understand what happened in this case when the team that recommended summary action, down the road a judge says there is not probable cause. A. The action was based on the information

available to us on the 15th. Q. A. Okay. This action was based at that time on

information available to the medical board on the 15th. Q. All right. Now -- and that was solely based on

an arrest? A. It was based on the nature of the allegations

and the potential of risk to the public. Q. A. Q. Okay. What was the potential --

From a complaint that came from the arrest. Okay. What was the -- what was it about -- or

what was it about Dr. Ogbonnaya's practice that made it a high risk to the public on that second prong of your analysis? A. From my recollection, Dr. Ogbonnaya had a

number of patients for whom he was providing pain management. practitioner. If I recall, he works primarily as a sole Sometimes with larger practices, there

is some sort of internal accountability, and with different types of practices, there might be -- there might be less risk.
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Q. doctor? A.

Okay.

Who thought he was a pain management

I just recall that some of the cases involved

pain management. Q. Is it your understanding that any doctor -- is

it your understanding that it would be unusual for an internal medicine doctor to see patients with pain problems? A. Q. Not at all. Okay. So the fact that he was an internal

medicine doctor was considered to pose a greater risk to the public? A. The nature of his practice was one of our

considerations. Q. Okay. What was your understanding of the

nature of his practice? A. That he is an internal medicine practitioner,

that he did not practice with partners, and that some of the patients in question were receiving pain management through his practice. Q. What was it about pain management that made it

significant in terms of risk to the public? A. A lot of times people who are in pain are There's a lot of dynamics

particularly vulnerable. with pain management.

I don't want to -- I would say


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that it is the nature of practice in which the patient is particularly vulnerable and relies heavily on trusting their physician to help manage that pain in a way that is going to increase their quality of life and not put them at risk for harm. Q. A. Who told you that? That is based on experience and based on

reading a number of reports about different care cases. Q. So it's your testimony as the executive

director of the Arizona Medical Board that people in pain are particularly vulnerable and rely more heavily on trusting their physician than other patients? A. Q. I don't believe I said other patients, did I? Well, you said that is what made this unique,

so I am comparing it against patients. A. I don't remember -MS. FROEDGE: She didn't -- objection. She

didn't use the word unique. THE COURT: BY MS. GIESZL: Q. All right. Go back and tell me. You said you Sustained.

balance certain things, and you look at -- I thought you said unique. What was it about the nature of the

patients in this practice that made you more concerned than you would have been about patients in another
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practice? A. Q. A. Going back to a solo practitioner is a factor. All right. Certainly the allegations and the seriousness

of the allegations are a factor, and the fact that these patients seemed to be particularly vulnerable, as I recall. Q. A. What do you mean by vulnerable? I probably can't speak more specifically to I really can't.

that from recollection. Q.

So whether a patient is vulnerable then would

be a criteria that the team would have used in looking at whether to recommend suspension, correct? A. I am considering different types of vulnerable

patients and thinking that's certainly one factor, but maybe not a primary factor. Q. Did the committee -- well, I asked you three.

You said internal medicine, solo practice, and a patient mix with people in pain management who are particularly vulnerable? A. Q. Okay. All right. Now, did you consider the fact that

people -- pain management patients might have -- if they had been denied their medications, might be more apt to make false allegations against the doctor who
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denied them their medication? A. That would be something that would come up in

the investigation probably more than before a summary action, but it certainly would be something that a panel could consider if they had specific information. Q. Did the panel that recommended summary

suspension to Dr. Ogbonnaya consider false allegations and retaliatory action by pain management patients against doctors who refuse to give them refills of medications? A. past. It is certainly something we've seen in the It's certainly something that exists as a

possibility. Q. But did this team consider it? I don't see any

evidence that they did. A. Q. I don't know that they did. Okay. Did you instruct -- did you direct

Investigator Shepherd to ask Dr. Ogbonnaya to surrender his license voluntarily on June 9th -June 7th? A. Q. A. No. All right. Who did? I'm sorry,

One thing we give physicians the option to do

is to enter into a voluntary practice restriction. It's consenting to refrain from practicing medicine
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during the course of the investigation.

We would not

offer a surrender consent agreement until the investigation was complete and had gone through the entire process and they had a SIRC report to review. In the preliminary process, we simply give a physician the opportunity to voluntarily restrict their practice. Q. Do you do that whenever a complaint is filed

against a physician? A. No. Whenever there is the -- whenever there's

what we believe may be significant risk, we offer the physician that option. Q. A. Q. Significant risk to the public? Correct. You don't have any criteria, any guidelines,

any procedures to tell you how to evaluate that significant risk? A. Q. A. Q. Other than the factors I've shared with you. Okay. So it is subjective?

Certainly. Okay. Now, is there a procedure in which a

member of your staff instructs an investigator to contact a physician and offer them a voluntary consent agreement to refrain from practicing during an investigation? A. Your question is is there a process?
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Q. A.

Yes. Yes. That would happen through the

investigation units. Q. Okay. So who would have told -- does the

investigator assigned to the case have the discretion to decide which physician to contact? A. I think there would be a conversation with

their supervisor in making that determination, and if it was clinical, with the chief medical consultant as well. Q. If it was clinical. In this case it was not

clinical, correct? A. Q. Yes. I understand that you've emphasized there's a What

lot of team discussion and dialogue and analysis.

I am looking for is a way to know in writing the steps that the staff went through in deciding to recommend summary suspension of Dr. Ogbonnaya's license. Is

there a document that would reflect the process that you have just described for us as it applied to Dr. Ogbonnaya? A. I don't believe there would be a document that We have

goes through the steps per se of determining.

a summary action policy, but I don't believe it goes through those judgments steps specifically that you are
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describing. Q. So there's no way to go back and look and see a

written record of the steps that you went through up to the point that you recommended summary suspension? A. Other than collection of information and

correspondence, no. Q. Okay. And because so much of this happens

verbally and in conversations, as you've described, there really isn't a complete written record of how you went from point A to determine a physician has been arrested on alleged sexual misconduct to the point that we're going to recommend summary suspension? A. Q. A. Q. Yes, that is correct. There is no record? Correct. Okay. I want to make sure I am doing my job Now, the board

asking for all of these documents.

conducted its informal interview of Dr. Ogbonnaya regarding five patients on June 15. Did you -- you did

not attend that informal interview, at least from what the transcript shows; is that correct? MS. FROEDGE: Objection. I don't believe there

was an informal interview -MS. GIESZL: MS. FROEDGE: I'm sorry. There was an investigational
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interview. By MS. GIESZL: Q. A. Q. I'm sorry. Investigational. I'm sorry.

Was it on June 15th? The transcript says June 15th. THE COURT: MS. GIESZL: Of what year? 2010. Sorry.

BY MS. GIESZL: Q. I have the board transcript here -- I didn't I'm happy to at this point -And I'll

put it in as an exhibit.

reported by Christine Coaly, C-O-A-L-Y.

put -- anyway, did you attend the investigational interview? It's not recorded. You didn't talk, but

that doesn't tell me you weren't there. A. I was not present at an investigational

interview on June 15th or any other day. Q. A. Q. Okay. Correct. Now, it is my understanding that at your board You don't normally attend those?

meeting on June 15, and you have the minutes there -what time did that board meeting begin? A. Q. 4:03 p.m. it was called to order. Okay. And the transcript shows that the

investigational interview on the 15th began about 11:50. When did you call the meeting of the board, or
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when did the chairman call a meeting of the board that began at 4 p.m.? A. Q. A. Q. A. meeting. Q. Okay. So you would've had to have noticed the I do not recall. What's your statutory notice for one? Unless it is an emergency, it's 24 hours. Was that an emergency? This is entitled an emergency teleconference

meeting the prior day, the 14th? A. If it was an emergency meeting, it's possible

it was noticed with less than 24 hours. Q. A. Q. Okay. But I don't know when it was scheduled. All right. It is my understanding that you

spoke with Dr. Ogbonnaya at the end of the investigational interview after it was over and he and his attorney, Ms. Busher, were there and you spoke to them. A. Q. Do you recall that? Somewhat. I mentioned it -- do you recall that you

informed them at that point that the board meeting would be at 4 p.m. that afternoon? A. You are saying I spoke to them prior to the

summary action meeting?


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Q.

Yes.

After the investigational interview on

the 15th, you told them that the board would be meeting this afternoon. A. I'm sorry. I don't believe I spoke to

Dr. Ogbonnaya or his attorney prior to the summary action meeting. Q. A. Q. All right. When did --

If I did I don't recall. Okay. When did the board give Dr. Ogbonnaya

notice of the summary action meeting? A. Q. I do not have that information. I don't know.

When would you typically notify the physician

of the summary action meeting? A. Typically we would offer them the opportunity

to voluntarily restrict their practice during the course of the investigation and give them a deadline to consider that, and then schedule the meeting for several hours after that deadline. Q. A. Did that happen in this case? I presume it did. I don't have the times, but

I presume it did. Q. All right. And presumably it's in the record

somewhere? A. process.
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That's the

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Q.

All right.

If Dr. Ogbonnaya had agreed to

voluntarily restrict his practice during the course of the investigation, would that have guaranteed him any outcome in the discipline process? A. Q. No. Would it have guaranteed him any favorable

treatment in the outcome? A. It is really only to protect the public while It's the sole purpose of either

we investigate.

restriction or a summary action. Q. Okay. So there's no quid pro quo. If you

voluntarily restrict your license, it will go easier on you? A. Q. No. Now, in fact, Dr. Ogbonnaya did agree to

voluntarily restrict the practice -- his practice by having a chaperone. And he did that following the

meeting on June 15, correct? A. Q. Yes. All right. So he did what you asked him to do.

He signed a voluntary consent agreement? A. Q. Yes. Why then did the board summarily -- why was the

summary action necessary? A. Assuming a second summary action?


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Q.

No.

The one on June 15th.

He agreed to it.

Why did you have the board meet? A. Q. A. Let me just read the motion for a moment. Okay. This meeting was called at 4:03. And we did

not have an agreement from Dr. Ogbonnaya at 4:03, the way this record reads. And it looks like the board

made a motion to offer him a consent agreement rather than just order a restriction. He was given a deadline

of the following day at 12 p.m. to sign a voluntary practice restriction that would require chaperones. I

can't tell from this document, but as I recall, he did do that. Q. A. Now -- I'm sorry. Go ahead.

This is a little unusual because they made the

motion to offer him the opportunity to consent as opposed to having, you know, a more -- have an actual board restriction on his record. And it looks like

that was the opportunity afforded to Dr. Ogbonnaya. Q. All right. He signed the consent agreement

that the board directed staff to offer him? A. Q. Correct. Now, that consent agreement if you recall was

in fact different than the surrender agreement that the staff had offered to Dr. Ogbonnaya previously, a
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restriction? MS. FROEDGE: Objection. I don't believe her

testimony was that he was offered a surrender agreement. MS. GIESZL: BY MS. GIESZL: Q. A. Q. A. Q. I should have said restriction. Yes. All right. Certainly. Okay. But in any event, Dr. Ogbonnaya So it was different than that? I'm sorry. You are right.

cooperated with the board and signed the agreement that the board offered? A. I presume so. It is not reflected here, but as

I recall, he did. Q. Do you know what standard the board uses to

determine that a physician should have a chaperone present? A. Q. A. That the board -- the board uses? Yes. Again, it's judgment. I really can't speak to

the board because very often the board makes different decisions than the original recommendations from staff. So I can't really speak to the 12-member board thought process. But always protection of the public is what
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drives them in any decision they make. Q. Okay. Now, what standard did the board staff

use in the agreements that it proposed to Dr. Ogbonnaya before the board? A. What standard did the staff use to propose a

practice restriction? Q. A. Yes. We collectively as staff believed based on

information available to us on the 15th that that was the reasonable way to protect the public during the course of the investigation. Q. I understand. I understand that's what you That was your goal. What I'm

intended to accomplish.

asking is what standards did you use if any? A. Again, as we've talked about, it is objective.

It is judgment. Q. A. Subjective? Thank you. It's subjective. It is a team

effort to look at what are the rights of the physician and balancing those with the protection of the public, but I cannot give you any standard other than public protection. Q. In that instance when the staff is preparing a

proposal for a physician to sign, a proposed agreement, you are again, I take it, relying on your internal
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expertise of your staff and your medical consultant to decide what to offer? A. Q. And the information available to us, yes. Okay. And, again, there is no written set of

standards or guidelines as to how the board -- as to how the staff and your internal consultants develop the provisions of a practice restriction? A. No, not that I can think of. Most of our

written -- have more to do with the process. Q. Okay. Why did the board or staff delay seeking

a hearing here at the Office of Administrative Hearings after Dr. Ogbonnaya waived the formal interview with the board? A. Q. I can't answer that. I don't know.

Do you know -- if you look in the minutes of

the June 15th meeting, I believe there is a recommendation that board staff interview Dr. Ogbonnaya's PA. page. A. Q. Which paragraph? I think it is towards the bottom. I gave you I believe it is on the second

my copy, so I don't have it to look at. A. Q. I don't see it. Okay. Do you know if there were

recommendations from any of the consultants at the


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board that board staff interview Dr. Ogbonnaya's office staff? A. I don't recall. I am looking at the large I

paragraph in the middle, but there may have been. don't specifically recall. Q. A. Q. Okay. No. Is there a policy to not interview a Do you know if that occurred?

physician's office staff in the course of investigation? A. Q. No. Is there a policy to not interview a

physician's staff when the team is considering whether to recommend summary action? A. Q. No. Is there any policy when you are considering

whether to recommend summary action to get a patient's medical records before you make that recommendation? A. Q. No. And when you make the recommendation without

benefit -- in Dr. Ogbonnaya's case, made the recommendation -- scratch that. Let me start over.

In Dr. Ogbonnaya's case, you made the recommendation for summary action without having looked at the patient records?
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A.

It's possible because again, a summary action

occurs before the investigation is completed or in some cases before the investigation is even barely begun. Q. Okay. In this case, was there any reason for

having the summary action meeting scheduled on June 15 right after you did the investigational interview with Dr. Ogbonnaya? A. Q. A. Was there reason? Correct. I mean, I don't know the specific reasons why

it was scheduled Tuesday, June 15 at 4:00, whether travel considerations were brought into question or whether -- I'm certain that by earlier in the day the board scheduled -- obviously convening eight physicians and four public members is a challenge. had already been scheduled. So probably it

But as to why it was

specifically scheduled that day at 4:00, I can't speak to that specifically other than it is again balancing the opportunity to collect as much information as necessary with urgency. Q. Okay. Now, the investigational interview,

which began about 11:00 on June 15 included five patients. A. Q. Were you aware of that? No. Now, one of those patients, patient MG is not a
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patient that the board proceeded and included in this complaint. A. Are you aware of that?

I'm really not familiar with the intricacies of

any complaint investigation. Q. All right. Do you know why patient MG was

dropped from this case against Dr. Ogbonnaya? A. Q. A. Q. A. Q. No, I do not. Who would know that? The investigator. Ms. Shepherd? Presumably, yes. Okay. And she's here right now, so I presume

when she's called on rebuttal, she will be prepared to answer that. Has the -- since you have been executive director, has the board -- have you provided for the board any training, sensitivity training, regarding assumptions about individuals based on gender or race or ethnicity or culture? A. Q. A. Q. Any training? Sensitivity training. No. You are familiar with sensitivity training in

the workplace? A. Yes.


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Q. training? A. Q.

The medical board itself has not had that

Correct, not during my tenure. And you have not provided it for the staff of

the medical board? A. Q. That's correct. On June 15, the board ordered Dr. Ogbonnaya to

undergo a psychosexual evaluation, correct? A. Q. Correct. Are there standards or policies or procedures

as to which licensees might be ordered to undergo a psychosexual evaluation? A. Q. A. Which licensees to undergo? A doctor like Dr. Ogbonnaya. The majority -- now, we are specifically

talking about psychosexual evaluations? Q. A. Yes. The majority of cases in which there are

reasonably credible allegations of sexual misconduct or sexual impropriety, in the majority of those cases at some point either summarily on the early end or during the course of the investigation, doctors are asked, or in some instances ordered, to undergo a psychosexual evaluation. Q. Okay. What do you mean by reasonably credible?
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A.

Well, if they -- for example, if a patient

alleged that their doctor appeared to them through their microwave in the form of a ghost and sexually assaulted them, we probably would not ask a doctor to undergo psychosexual evaluation. Q. Okay. But if two patients who have no narcotic

dependencies and psychiatric problems -A. And similar allegations, absolutely. That

would be the next step in most cases. Q. What was the similarity in the allegations

between patients KH and AT? A. Again, I can't speak to the specifics of that I was not one of the investigators. I I

investigation.

just can recall, you know, on a more high level.

would have to be referring just to my memory from over a year ago. Q. Okay. So your recollection was that the board

was told, and before ordering Dr. Ogbonnaya to undergo a psychosexual evaluation, that there were similarities in the allegations? A. No. I believe they would be given the specific

allegations to some degree during the course of that open meeting. use. And that is the information they would

They would ascertain for themselves as board

members to what degree there is similarity.


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Q.

Now, that is, of course, based on an assumption

that what a patient is telling them is true? A. Q. Well, they are allegations at that point. Okay. Now, let me give you the minutes of the This is Exhibit 40, Respondent's

meeting on the 30th. Exhibit 40.

I apologize for not having an extra book.

I didn't realize we didn't. In those minutes, the allegations of each patient is reported to the board. If you need a few It's

minutes, take a few minutes to look through it. several pages long. A. Q. Okay.

Do you see there information for the board that

described the mental and physical diagnoses of these patients? A. Q. No. Do you see any information for the board that

describes the psychiatric medications that these patients were on? A. Q. No. Do you see any information that gave the board

the history some of these patients had of making allegations of sexual misconduct against other people? A. Q. No. Do you see any information there to suggest
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about some of these patients' narcotic abuse? A. Q. No. Any information there that two of these

patients had been diagnosed as psychotic? A. Q. No. Any information there that some of these

patients had criminal histories involving dishonesty? A. Q. No. And I use the somewhat facetious analogy of the

patient who thought a doctor came through the microwave in the form of a ghost actually based on a case I once had. But in this case, are you aware that one of these

patients testified that her husband had divorced her some six years before she knew they were divorced, and she continued to live with him unaware that she was divorced from him? A. Q. No. Are you aware that one of these patients had

told your investigators before this meeting on June 30 that when she gave her interviews to the police, she had not slept in two weeks? A. Q. No. Are you aware that one of the patients on which

the complaint against Dr. Ogbonnaya on June 15 was based had been discharged from the practice for
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narcotic abuse and suspected dealing in narcotics? A. No. MS. FROEDGE: Objection. I don't recall

testimony of the patient who was discharged from the practice. MS. GIESZL: records. MS. FROEDGE: That is not one of the patients Patient MG. It is in the medical

that is on the complaint in this case. MS. GIESZL: It's not in the complaint. It was

on the list of patients that went to the board and on which they acted in the summary suspension. MS. FROEDGE: to this case. MS. GIESZL: It's relevant to the suspension Objection. That is not relevant

which became procedurally a point on which this case proceeded. THE COURT: BY MS. GIESZL: Q. As executive director, do you think that before Overruled.

the board acted in the future on a physician's license, they would want to know the kind of information I just went through about these several patients? A. A board will always want all of the information

we can possibly get to them, balancing again the


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urgency to do a summary action with getting them as much preliminary information as we can prior to completing the investigation. Q. You are aware that that information was

available, are you not, on June 15? A. Q. A. I am not aware of that. And on June 30? No. The investigator and the investigative

unit may have been, but that is not something I particularly recall. Q. Okay. Now, the psychosexual evaluation, does

the board have a contract with facilities to do psychosexual evaluations of its licensees? A. Not a contract per se. The individual

physicians enter into those agreements and pay for those services. Q. Okay. Then on what basis does the board select

the facility to whom a licensee is referred for a psychosexual evaluation? A. The board will ask a physician to go to a

facility that offers psychosexual evaluations, any treatment facility that offers that service. Q. All right. Let me ask you there, why does the

board require a psychosexual evaluation from a treatment facility?


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A. approach.

Because then you get a multidisciplinary You have a team that is doing an evaluation There is

over the course of one or two or more days.

opportunity for a lot of interaction and a team assessment as opposed to one single practitioner making the judgment. Q. And it's your understanding that that

multidisciplinary approach is more valid scientifically? A. That is the process that the board currently

uses, is to request a multidisciplinary team evaluation and treatment facility. Q. What does that multidisciplinary team approach

A.

It means you've got experts who are trained in

the things we were talking about earlier, forensic information, collecting collateral information, looking at everything including interviewing and evaluating and testing the individual physician and the other evidence to ascertain that individual's safety to practice and need or lack of need of treatment. Q. Okay. So the purpose of requiring the

psychosexual evaluation is to determine what? A. To determine if the physician is safe to

practice and what if any treatment or interventions are


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recommended by that team of specialists. Q. what? A. It depends on the case. If it's a psychosexual And safe to practice, do you mean in terms of

case, and there's no sexual diagnoses that would indicate to the team that that individual was unsafe to practice, or if they are safe to practice if there are some restrictions necessary. Q. So no mental disease or defect or disorder

related to sexual misconduct? A. Q. That would make them unsafe to practice. Okay. And why did the board in Dr. Ogbonnaya's

case require that he have the evaluation at one of three facilities? A. Those were the facilities that we knew offered

psychosexual evaluations and that we had had previous experience with. Q. Is it your testimony that you have had previous

experience with physicians accused in a criminal case of sexual misconduct be referred to one of these three facilities for board-ordered psychosexual evaluation? A. It's my experience that when we have physicians

for whom there's allegations of sexual misconduct, that those are facilities that we have referred them to and they've gone to for evaluations.
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Q.

All of those physicians went and were admitted

for treatment? A. Q. A. Q. I don't know. You don't? No. Okay. Who at the board chose these three

facilities? A. They are facilities that are really just They are identified as

identified, not chosen.

facilities that provide psychosexual evaluations. Q. A. Are you -- so -We do call them board-approved facilities, but

we would essentially approve any behavioral health evaluation center that offered psychosexual evaluations. Q. A. Q. When was Dr. Ogbonnaya told that? I don't know. Do you know if he was told that he could get

the psychosexual evaluation at any licensed facility or provider who did psychosexual evaluation? MS. FROEDGE: provider. Objection. She didn't say any

She said facility.

BY MS. GIESZL: Q. A. Okay. Facility. Was he told that?

I didn't have any conversations with


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Dr. Ogbonnaya.

I can tell you that normally after an

order or consent agreement is reached, there is dialogue between the investigative staff and the physician or his or her counsel. Q. Are you aware that the Meadows turned down

Dr. Ogbonnaya because they don't do screening psychosexual evaluations for patients who were not admitted for treatment? A. Meadows. Q. A. Meadows. Q. Would it be surprising to you if the other two For that reason? I was just aware he was turned down by the I was aware that he was turned down by the

facilities that the board ordered him to choose from also do not accept patients for psychosexual evaluation unless they are diagnosed already and being admitted for treatment? MS. FROEDGE: Objection unless there's going to

be any evidence to that effect. MS. GIESZL: THE WITNESS: I believe there will be. We regularly send physicians for

psychosexual evaluations to these treatment facilities, and they are regularly evaluated, and we get a report. BY MS. GIESZL:
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Q. A.

And they do not -I am aware of -- I do believe I am aware of

instances, I don't know recently, when their evaluation did not recommend treatment. Q. But treatment beyond the stay that the

physician had there? A. I am aware of instances where treatment was not

recommended by the evaluation. Q. Beyond the treatment that the physician got at

the facility when he or she was at the facility? MS. FROEDGE: Objection. There is no testimony There has

that there was treatment at the facility.

been testimony that physicians are sent for evaluation at the facilities. BY MS. GIESZL: Q. So is there any document that we could look to,

any report, any recommendation that explains why these three facilities are the approved board facilities? A. Q. No. From your testimony then, the board has in

other instances approved other places for the physician to get a psychosexual evaluation? A. What I can tell you is that if a physician

offered a facility that offered psychosexual evaluation, the board would consider it.
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Q.

All right.

The reason for using a facility is

because you think that if you are at a facility, you get a more thorough examination -- evaluation? A. There is a multidisciplinary approach over a

period of time that we believe is beneficial. Q. Who has advised you from a consulting

standpoint, what physician, what expert has told you -has told the board that you need a facility to do this psychosexual evaluation? A. Our experience has been that single psychiatric

providers have historically posed some challenges in the past when we tried to receive psychosexual evaluations from an individual practitioner. very challenging. It is

They don't have the -- as we have

been talking about, they don't have the system, a process in place. They are more geared toward

treatment and in some cases advocacy for their patients. beneficial. But we are trying to accomplish an objective evaluation. And our experience has been that it is -And in the treatment process later that is

we get a more comprehensive and objective evaluation from a multidisciplinary approach with a facility that offers that specific service. Q. Okay. I assume that you have never then used
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the superior court and federal court list of sanctioned, approved psychosexual evaluators? don't know who is on that list? A. Q. I personally do not, no. And you don't know whether they use as part of You

the psychosexual evaluation multidisciplinary methods and techniques? A. Q. No. I have not seen in the record any documentation

that Dr. Ogbonnaya was ever told that he could have a psychosexual evaluation at a facility in Arizona other than the Meadows. that? A. I am not aware of any other psychosexual Do you believe that he was told

evaluation services provided by facilities in Arizona. I am not aware of any occasions on which he called and asked that question. Arizona. Q. All right. If he had been told that, and he But I am not aware of any in

had pursued finding one that would have been acceptable to the board, then that might have been an option for him? A. Q. I can't rule it out. Okay. And has the board in other instances

permitted physicians who have been referred for


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evaluations to have them at a facility other than the first three or four that the board gives the physician? A. I can't speak specifically to psychosexual

cases, but that has been the case with, for instance, substance abuse or other psychiatric evaluations. certainly have allowed physicians to offer up alternative providers, and we have agreed. Q. There's no reason in this case to think that We

you wouldn't have considered something if Dr. Ogbonnaya had the option to give that to you? A. Q. And if it had been a facility, yes. Okay. You said that the reason you insist on a

facility is that it's the board's experience that you get a better report? A. Q. Than with a single provider. Okay. Dr. Coffer, who was the medical

consultant here, said that she would defer to a forensic psychiatrist with experience in this area as to what would be an acceptable psychosexual evaluation. I don't -- I assume you're not going to second-guess Dr. Coffer? A. Q. No. Do you know how the three facilities that were

given to Dr. Ogbonnaya as options were chosen? A. As I said earlier, they were identified, and we
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have had experience with them in the past. Q. So you don't know who suggested those as the

ones that the board approved? A. Q. No. Is there a written process or procedure that

reflects how the board approves a particular facility? A. Q. No. And in terms of how the board selected those

facilities as the options that Dr. Ogbonnaya had, those are -- it simply gave him the list of three approved facilities? A. Q. Correct. And if Dr. Ogbonnaya had entered into a

voluntary agreement with the staff regarding his license before the board meeting on June 15, would that have meant that he would not have been ordered to have a psychosexual evaluation? A. No. He still would've been ordered to have a

psychosexual evaluation. Q. That was foreordained as soon as he was the

doctor who was accused by two patients of sexual misconduct? A. Based on the information in this case, that

would have been a likely outcome at some point in the investigation to require a psychosexual
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evaluation. Q. Simply on the basis of complaints by patients

KH and AT and of possible risk to the public? A. It's one individual that oversees that team.

It is hard for me to say, but that is -- as I said before, the majority of sexual misconduct cases we ultimately try to obtain a psychosexual evaluation. Q. It sounds like -- correct me if I'm wrong. It

sounds like that it's the board's process if there is an allegation of sexual misconduct against a doctor by a patient that the board believes may be true to require a psychosexual evaluation? A. Q. Yes. So the board believes the patient in that

instance and typically requires the evaluation? A. I wouldn't say the board believes the patient.

The board believes there is enough indication of possible risk to the public that the physician's ability to practice is in some instances outweighed by our responsibility to protect the public. Q. Okay. Now, a psychosexual evaluation is a very

specific tool to be applied in cases that fit particular clinical criteria? A. Q. Correct. It is an intervention by the board that is
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subject to objective criteria as to who should be ordered and who shouldn't be ordered to have it? A. Q. To the best of our ability, yes. Okay. Are there written criteria, written

guidelines that the board as a board uses to determine when to require the physician to have a psychosexual evaluation? A. Q. No. All right. So the board relies as a board on

its own expertise of 12 to decide which physician to order and not to order to have such an evaluation? A. Q. Yes. And then I take it when there is an allegation

by a patient or an arrest by a physician involving sexual misconduct, from what you have told me, that is almost always likely to result in a psychosexual evaluation? A. Q. Very likely. The board in fact in that instance does not go

through a process of weighing whether this clinically is a case that should be referred for a psychosexual evaluation? A. The board has delegated that authority to the So in many cases the executive

executive director.

director, through the team approach with the staff, is


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making the determination when to ask, or in some cases order the physician to have the psychosexual evaluation. Q. And that's what happened here. You asked the

board to order Dr. Ogbonnaya to have the psychosexual evaluation? A. In this instance, it came from the board. That

is correct.

In some instances yes, the board through

that motion ordered a psychosexual evaluation. Q. The board based on your recommendation -- based

on the staff's recommendations? A. Q. Yes. Okay. Before you made the recommendation to

the board, did you consult with a psychiatrist or a psychologist in the area of psychosexual abnormalities as to whether this was an appropriate case? A. Q. No. So the staff -- you and your staff made that

decision to recommend the psychosexual evaluation using the process that you told me about earlier, the team approach to recommending summary action; is that correct? A. Q. That is correct. Has any board-certified psychiatrist or

psychologist expert in the field of psychosexual


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abnormalities ever recommended to the board that a facility-based psychosexual evaluation is more appropriate or more reliable than one done in an outpatient setting? A. Q. Not to my knowledge. You have not had any study committee to look at

the alternative ways to get a reliable psychosexual evaluation? A. Q. Not since I've served the board. You have not personally I assume visited any of

the three approved board facilities for psychosexual evaluation that were offered to Dr. Ogbonnaya? A. Q. I have not. Prior to you and your staff making

recommendation to the board that Dr. Ogbonnaya have a psychosexual evaluation, did you speak to any of the physicians on the board about that option? A. I don't recall. If I had, it would have just

been to the chairman, but I don't recall. Q. Dr. Ogbonnaya's civil attorney, Mike Bradford,

asked the board to give Dr. Ogbonnaya statutory immunity regarding the psychosexual evaluation and regarding testimony so that he could fully cooperate with the board notwithstanding the criminal investigation. Did you consult with the board about
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giving statutory immunity, which is in your power to do? A. That is something I would have consulted with

our attorney general's office on. Q. Okay. But you did not go to the board and say

the doctor has asked me to give statutory immunity, which I am empowered to give him, but I want to talk to you about whether you think that is a good idea? A. I do not recall having a conversation like that

with the board. Q. Okay. I assume you would agree that a case in

which a licensee is facing criminal charges and the board is investigating as a result of those criminal charges is a situation in which giving the licensee immunity does give you a more complete and full investigation? A. Like I said, I would defer to the attorney

general's office for legal advice on that. Q. Okay. Do you have any policies or procedures

and guidelines on how the board should consider whether to give immunity to a licensee who is under investigation criminally and trying to cooperate with the board? A. Q. Not to my knowledge. Okay.
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A.

I do recognize the challenge from the

physician, but to my knowledge, we don't have a specific policy that addresses that. Q. In fact the challenge is if the physician

exercises his constitutional right -- well-recognized constitutional right, that may cost him his license with you, correct? MS. FROEDGE: make that call. THE COURT: BY MS. GIESZL: Q. A. Q. A. You are aware of the challenge, you said? Yes. What is that challenge? That you are balancing the allegation of Sustained. Objection. This witness doesn't

criminal charges with the administrative process of defending a professional license. Q. Okay. And if you exercise your constitutional

rights, it may compromise your ability to defend your professional license? A. I am not a lawyer, so like I said before, I

would defer to the attorneys for advice in those matters. Q. Okay. But you never took it -- in this case,

you never took the issue to the board?


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A. Q.

I don't believe so. And in the cases that the patients complained

to Dr. Ogbonnaya -- about Dr. Ogbonnaya, their complaints to Detective Kessler involved allegations of sexually inappropriate comments or sexual misconduct? A. Q. Uh-huh. Now, when the board followed up on the criminal

investigation and began its own investigation, the board broadened its investigation to include standard of care issues. A. Is that typical? I can think of

It can happen sometimes.

instances where we have had professional conduct cases that brought in standard of care concerns. Q. happen? A. Q. Yes. Do you know why in this case, in And you can think of cases where it didn't

Dr. Ogbonnaya's case, the professional conduct issues were broadened to include standard of care issues? A. Q. No. Dr. Coffer's testimony turned on the potential

harm to a patient involving continued use of ibuprofen after the patient had some gastric symptoms. There is

a statute that permits the board of medical examiners to take disciplinary action based on potential harm; is
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that right? A. Q. occurs? A. Q. Yes. Since you have been the executive director, do Yes. Because you want to prevent harm before it

you recall any other case in which the board has revoked the license of a physician based on potential harm to one patient involving a standard dose of ibuprofen? A. Q. No. Do you know why Dr. Ogbonnaya was not given any

advance notice or information about the standard of care that would be applied in his investigational interview? A. Q. No. Was Dr. Ogbonnaya permitted to address the

board on June 15, 2010? A. Q. A. Was he permitted to? Uh-huh. Our normal process would be that he would be

permitted to, yes. Q. A. Was he permitted to have any witnesses? As a summary action meeting, I don't know. I

have never seen a witness at a summary action meeting.


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I don't know what the law says about that or what our policy is. Q. So in a case where you had your medical

consultant and the investigator interviewed the doctor beforehand, before the meeting, would it make sense to have witnesses available to address concerns that the staff had about the doctor at the board meeting? A. In a summary action meeting? I am not sure.

The role of a summary action meeting is to take preliminary action while the investigation is still occurring. So I don't know. As I said, I can't recall I can't recall what

an instance where that occurred. the policy is. Q. Okay.

At that meeting on June 15, was the

board made aware that Dr. Ogbonnaya had entered a plea of not guilty? A. I don't know. If the minutes don't reflect it,

then most likely not. Q. They also -- if the minutes don't reflect that

there had been no preliminary hearing, no grand jury indictment, the board wasn't told that either? A. Q. Probably, yes. Okay. So it sounds like on the 15th, the board

followed its normal process of hearing that there were allegations against a physician involving sexual
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misconduct, and regarding those allegations as sort of a simple, again, straightforward basis on which to act because of the nature of the allegations; is that true? A. Q. Can you repeat the question? Sure. The minutes from June 15 reflect that

the board heard about the allegations of sexual contact by two patients and acted very quickly with a resolution for Dr. Ogbonnaya. Is that because in your

view and in your experience these allegations of sexual misconduct are pretty straightforward reasons for the board to act? A. It's because the allegations were serious

enough to warrant a summary action. Q. Serious enough, and they were based on an

arrest, so the evidence there, quote/unquote, the evidence for the board is the board considers that something it can act on. acts? A. Q. help. A. I'm not trying to not answer your question. Okay. I know you're looking at your attorney for It is straightforward, and it

I'm trying to answer questions. MS. FROEDGE: My objection would be she can't

speak for the board itself how they acted or why they
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acted. MS. GIESZL: BY MS. GIESZL: Q. In your experience then as executive director, Let me rephrase it.

when a case comes to the board based on an arrest of a physician involving allegations of misconduct, the board regards that case as a straightforward case in which it's going to impose some restrictions to protect the public? A. In this case the staff felt it was serious

enough allegations to warrant bringing it to the board, and the board felt the allegations were serious enough to warrant the summary action on it. Q. correct? A. Q. Yes, the same day. And the board didn't ask for any experts or any All right. And it did it quite quickly,

psychiatrists or any other person to review the case before it acted? A. Q. A. Q. it? A. Yes.
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Correct. It acted on its own expertise, correct? Correct. And just based on the allegations in front of

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Q.

And are you aware of any -- or are there any

criteria or standards that the board uses when it considers your recommendation that a physician poses a threat to safety of the public? A. I can't, again, speak for the board. The board

has been given information about to exercise their responsibility. Q. A. All right. So they take into account the information we

provide, and they deliberate as a board. Q. I understand how they function. What I'm

asking is as executive director, are there any standards or criteria that the board uses to determine whether a physician poses an imminent threat to the public? A. No, not a list. Not a list somewhere. There

are many that they use. but there is no list. Q. Okay.

I can speak to some of them, There is no flowchart.

There's no document that says these are

the standards that we will use when we consider allegations of sexual misconduct against a physician that arise in the criminal world? head no. All right. Did a SIRC, S-I-R-C review the complaint against Dr. Ogbonnaya that was filed in this matter at
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You're shaking your

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the Office of Administrative Hearings? A. Q. A. I don't know. Do they normally? Normally prior to the hearing, there is a SIRC

review of the case. Q. So how do we know that? How can we find out in

this case who -- the basis from the board for what became the complaint against Dr. Ogbonnaya? A. Q. A. Q. We are talking post-summary action now? Yeah. Okay. The complaint that is at the Office of

Administrative Hearings seeking revocation of Dr. Ogbonnaya's -A. Yeah, that's -- a recommendation for revocation

would come through the SIRC committee. Q. Okay. Then do you know why Dr. Ogbonnaya was

not informed until the opening statements in this case that the board sought revocation of the license? A. Q. I do not. Is there a process that governs notice to the

physician when the board decides to seek revocation of the physician's license? A. There is a process, and it includes a review by

the SIRC team.


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Q.

Is there a written process, a written

procedure? A. I believe -- I believe there is a policy.

Again, it doesn't go through criteria or a plan first. It goes through a process, yes. Q. All right. So there is a process that the case

goes through that includes SIRC review? A. Q. Yes. All right. Now, each SIRC case -- each SIRC

committee meeting results in a document -- I have one from another case -- that says staff investigational review committee SIRC recommendation? A. Q. Yes. Okay. I would like then to ask that that be

produced, and Ms. Shepherd can bring it tomorrow, for the decision to seek revocation of Dr. Ogbonnaya's license. MS. FROEDGE: not discovery. THE COURT: MS. GIESZL: Sustained. It's not discovery but it relates Objection, Your Honor. This is

to a defense of the case, which is the lack of due process and the violation of due process, including lack of notification, lack of articulation of the basis for a license revocation, lack of an opportunity to
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meaningfully prepare to refute the allegations that arose from the complaint. MS. FROEDGE: Your Honor, I continue to object.

This case has been out there for quite some time. There have been several changes of counsel. The State

has disclosed what it needs to disclose pursuant to 32-3206. point. MS. GIESZL: Your Honor, I never had the And it is not the time for discovery at this

opportunity for discovery, and the record indicates that none of the other prior counsel did either. At

the hearing on June 15 and then on June 30, the board had to order board staff to give Dr. Ogbonnaya the staff investigation report, which they did, but not for, at that point, the staff investigational review committee that recommended revocation. complaint didn't seek revocation. The first time that there is any record that the board intended to seek revocation of Dr. Ogbonnaya's license was in the opening statement. And so I believe we are entitled to know when the board made the decision, the basis of that decision, and the motives and rationale behind it. MS. FROEDGE: Your Honor, the case is here And the

before you, and the allegations are very clear in the


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complaint that is being requested as far as the findings of unprofessional conduct. At the end of the

hearing, we ask the Court for a recommendation, and I put that up front of my opening what we will be requesting the recommendation to be. As far as, again, any disclosure pursuant to 32-3206 has already been done. And regarding this

attorney, again, she came late in the game, but there have been attorneys all along the way. This case

wouldn't be at OAH at this point if the State wasn't requesting revocation. But, again, the ultimate

disciplinary recommendation is left up to a recommendation by you and then ultimately by the board. MS. GIESZL: Your Honor, there was -- this The response was I asked for a

complaint was filed in June 2011.

filed, and then the hearing was set.

continuance specifically for the purpose of discovery and because of problems in scheduling. And the

continuance was denied and the Court set forth its reasons. The fact is today is the first time we have ever learned -- the record doesn't reflect until today that there was a staff investigational review committee recommendation. It would be relevant if, for example, It

the staff said this case should be dismissed.


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shouldn't be brought, and we don't believe the patients, and the executive director made the decision on her own to pursue revocation. Now, I am not

suggesting that that's what it will show, obviously, but it is a document in the process that the executive director has emphasized over and over as the way they do business. And I respect the process. It sounds I have no

like a very carefully designed process. fault with what I have heard.

What I would like to see

is the document at which the committee that the executive director has described as making the recommendations. THE COURT: document -MS. FROEDGE: THE COURT: MS. FROEDGE: THE COURT: I'm not sure -Just a minute. I'm sorry. Is this a document that is Is this document a public

maintained by the board as a public record? MS. GIESZL: It's routinely given to physicians

in the course of business. MS. FROEDGE: It's not a public record as part And just to --

of the investigation file. THE COURT:

Would Counsel have been able to get

that document if she had asked for it?


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MS. FROEDGE: THE COURT: MS. GIESZL: MS. FROEDGE: clarify something.

Yes, Your Honor. The objection is still sustained. We didn't know it existed. Well, Your Honor, if I may

I am honestly -- Ms. Wynn has

testified she is not involved in every detail of the investigation. I am not certain as we sit here that

there was -- that the SIRC met on the sexual misconduct allegation. In fact I believe that they did not. I

think there may be a SIRC report, and I think it's one of the exhibits that have to do with the failure to participate in the psychosexual evaluation. I believe

that is the only SIRC report that exists, and it is indeed one of the exhibits. MS. GIESZL: THE COURT: Exactly. And this is all moot. Let's

MS. GIESZL:

I would request just as a matter

of good faith that if it does exist, that the board just produce it tomorrow. MS. FROEDGE: And I'm still going to object,

but for the record, I don't believe it exists. THE COURT: BY MS. GIESZL: Q. Okay. Is there a standard that governs which
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The objection is sustained.

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cases the board has investigated and then decides to drop, to not pursue? A. Q. A. Q. To dismiss? Yes. Yes, there is. All right. In this case, for instance, the

board investigated at the investigational interview on June 15, patient MG's complaints, but then that patient is not part of the group of patients who are the subject of this complaint. Do you know why patient

MG's allegations were dropped, were not -A. not know. Q. Okay. And would there be a standard that we I believe you asked me that before, and I do

could look to to determine how the board or staff decided not to pursue MG's case? A. There is a standard to dismiss a case, an

entire case, but as far as dropping witnesses, there would not be a standard for that. Q. Okay. And is there a standard that governs how

you investigate a case that arises on the board's motion as opposed to a patient complaint? A. In other words when the board asks us to

investigate? Q. When staff decides to.


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A. Q.

Can you repeat the question? Sure. Is there a standard that governs the way

an investigation that the staff decides to initiate is pursued? A. It's pursued the same way regardless of the

complaint source. Q. Okay. Great. Is there a standard or a

procedure that governs who determines which cases are included in a complaint? A. Q. That is part of the investigation process. Is there a standard or policy or procedure that

says who makes the decision as to which cases to include? A. Q. Which patients to include? Yes, which patients. MS. FROEDGE: Objection. To clarify, do you

mean the board's complaint or what is filed by the attorney general's office? BY MS. GIESZL: Q. In the investigation of the five patients that

went to the board involving Dr. Ogbonnaya, is there a standard or policy or procedure that determines which patients are included in the staff's presentation to the board? A. Not to my knowledge, no.
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Q. of staff? A. Q.

Okay.

That is left to the subjective judgment

Yes. Okay. Now, is there a process, procedure,

guideline, standard that determines which patients are included in the complaint filed at OAH? A. Q. Not to my knowledge, no. And so there is no way to know why a particular

patient or patients were not included in the complaint filed at OAH? A. Q. No, not by me. And as executive director, you don't know of

any way you could determine that within the board's file? A. Q. No. And has the board itself considered the

question whether to seek revocation of Dr. Ogbonnaya's license? A. Q. A. Q. A. The 12-member board? Yes. No, not to my knowledge. I don't believe so.

That decision is delegated to you? No. I was able to refer it to hearing. The

board would make the ultimate decision. Q. All right. So the decision is delegated -- as
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to whether to refer a case to the formal hearing is delegated to you? A. Q. Yes. Okay. I have that option. What other options did you have in terms

of Dr. Ogbonnaya's case? A. Q. A. Once the investigation was complete? Yes. I have a range of options with any case A case can be dismissed. A

depending on the evidence.

physician can be disciplined with any number of disciplinary measures. Or in the most extreme cases, All of the I am

the recommendation can be revocation.

disciplinary actions occur by the board though.

only delegated to make recommendations to the board or to dismiss the case, or to make recommendations to the board or to refer a case to hearing. three options always available to me. Q. All right. In this case you chose not to Those are the

dismiss the case? A. Q. Yes. You chose not to make recommendations for

discipline to the board? A. Q. Correct. And you chose the last option, which is to seek

revocation through OAH or a recommendation for


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revocation through OAH? A. Q. A. Correct. How did you make that decision? Again, there is a lot of staff input. But

based on the potential for harm to the public, based on the information we had available. Referring the matter

to an administrative hearing is the best way to have witnesses and evidence all be carefully considered. That is a very difficult process in a board meeting, and obviously a formal interview is extremely public and not set up for the kind of time required to carefully give a physician due process. So one of the

considerations in referring the matter for a formal hearing was to ensure that the evidence can be considered and the matter in its entirety can be considered. Q. Okay. And in this case involving

Dr. Ogbonnaya, absent the allegations of sexual misconduct by some of the patients, would you have recommended that this come to a formal hearing for revocation of a license? A. Absent the allegations of sexual misconduct,

which would leave the standard of care issues? Q. A. Yes. Certainly not.
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Q.

And absent the allegations of sexual

misconduct, if Dr. Ogbonnaya had not been able to obtain a board-ordered evaluation, would you have recommended revocation, or would you have tried to find an alternative to revocation? A. You lost me absent the sexual misconduct. It

is kind of hard to speculate absent the sexual allegations. Q. A. Why in this case is it hard? Because the essential concern to the public So

revolves around the absence of sexual misconduct.

the psychosexual evaluation would not have entered our minds absent the allegations of sexual misconduct. Q. Okay. That's fine. Let me take just a minute, and I

MS. FROEDGE: might be done.

Or do you want to take a break? Why don't we go ahead and take a

THE COURT: break until 11:00. MS. GIESZL: THE COURT:

Okay.

Thank you.

Going off the record.

(Recess from 10:48 a.m. to 11:04 a.m.) THE COURT: BY MS. GIESZL: Q. Okay. I have just a few more. Ms. Wynn, is it We are back on the record.

true that the evidence that you have in this case on


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which the staff acted came from the police reports and the staff interviews of the patients? A. Q. Yes. Are there any policy statements or guidelines

or standards that physicians can look to from the board to know if a given act that may cause potential harm is going to get them in trouble with the board? A. Q. Yes. What are those? THE COURT: microphone closer? Counsel, could you move the Thank you. The Medical Practice Act, which

THE WITNESS:

is Title 32 and specifically the definitions of unprofessional conduct. BY MS. GIESZL: Q. All right. And that includes as a definition

of unprofessional conduct any act that may cause potential harm? A. Q. Correct. Where can a physician look to know what act

that may cause potential harm, quote/unquote, may trigger an investigation by the board? A. Well, that is one of about 44 definitions that

also include issues specific to prescribing and Section Z.


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Q. A.

Right. It identifies all the sexual misconduct. So

many of those are more explicitly laid out.

And then

we really refer to what we call the standard of care for any conduct that is or may be harmful to their patients. Q. A. Q. Potentially harmful? Yes. All right. Is there any way to -- is there

anything at the board that would just help a person of normal, average, reasonable intelligence know that the board is going to pursue for discipline purposes because of the potential harm that the act poses? A. It really goes to the standard of care, and

that's what we use our clinical medical consultants for, so they can determine what a reasonable physician would do under the same circumstances. We look more to

that, or as much to that as to the potential for harm, because there is a clear recognition that with any treatment or service, there is always some potential for harm for which there is informed consent and so on. We are looking for doctors to operate within what we call the standard of care. Q. Okay. And there is not any -- okay. That's

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Did Dr. Coffer's report go to a SIRC, or did it just go straight over to Ms. Froedge's office? A. Q. I don't know. Do you recall whether the board has been given

a copy of Dr. Coffer's report and had the opportunity to review and discuss it? A. If it was created prior to one of these If it was created

meetings, the answer would be yes.

after one of these meetings, the answer would be no. Q. All right. And that may help in terms of the

reason there is not a SIRC -- that I haven't seen a SIRC report, as Ms. Froedge and I were talking, there may not have been one for anything except for the psychosexual evaluation. that makes perfect sense. Did you review the SIRC report in the State's exhibits on the psychosexual evaluation? reviewed it recently? A. Q. Not recently. Is that something you would have reviewed Have you And we sorted that out. And

before seeking license revocation on that ground? A. Q. Yes. You mentioned the Z section of the Medical Can you summarize in your own words how

Practice Act.

the board approaches that section of the statute?


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A.

There is the section that deals with any sexual

activity or sexual relationship between physicians and their patients. Q. And what are the standards that the board uses

to determine when to pursue a disciplinary action against a physician under that statute? A. The degree to which there is a potential for

Q.

Okay.

And I have asked you this on the other

questions, but on that specific portion of the statute, are there any standards that the board uses to determine, to weigh, to assess the potential for harm? A. Absent whether or not the allegation is true,

because that is one component of it is to determine the truthfulness and the validity of the allegation. Secondarily to that, they are just looking at how serious is the conduct, how much of a pattern is there, and to what degree is there a potential for harm. Q. Okay. Am I correct that the board in

Dr. Ogbonnaya's case did not determine that the allegations were truthful, the allegations by the patients were truthful? A. correct. Q. Prior to our summary action meeting? They did not. I don't see in the minutes on the 15th or the
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31st that the board concluded that the allegations by the patients were truthful; is that correct? A. Q. That is correct. So the board today has not determined that

those allegations were truthful? A. Q. harm? A. Q. Yes. And the pattern, you mentioned the pattern of That pattern in terms of the information Correct. They acted solely on the basis of potential for

the conduct.

the board had before it acted on June 31st -- June 30th is the information that is included in the report to the board by Ms. Shepherd and memorialized in the minutes, correct? A. Is that the information on which they based

their decision? Q. A. Q. Yes. That's the question? Yes. I'm sorry. Yes.

It was a long rambling one.

And that is the only information that the board had in assessing the potential for harm? A. Q. Yes. And that was the only information they had in

terms of determining whether the allegations were


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serious or not? A. Q. Yes. Now, you said that they didn't determine that

the allegations were truthful, correct? A. Q. Yes. But I assume that if they took action, they Strike

must have determined -- well, that's fine. that.

Based on your experience, Ms. Wynn, I guess you would -- would you agree that there isn't a single standard of care that applies to every specific medical treatment act or prescription a doctor provides? A. Doctors certainly utilize a tremendous amount There might be many, many options

of judgment.

different that are all within the standard of care. Q. So there is not a simple book we can go to to

look up what is the standard of care for diagnosis of an ear infection? A. Correct. MS. GIESZL: else. THE COURT: MS. FROEDGE: Counsel, any questions? Yes, Your Honor. I don't think I have anything

CROSS-EXAMINATION
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BY MS. FROEDGE: Q. Ms. Wynn, when this case went to the emergency

meeting on June 15, are you aware that the information provided by the investigator was more than just mere allegations and an arrest? A. Q. Yes. And in fact are you aware that the investigator

had actually interviewed three patients as of the time of the first summary action meeting? A. I knew that patient interviews had been

conducted. Q. All right. And in fact, are you aware that

Dr. Ogbonnaya had actually been given the opportunity to respond to the allegations prior to the summary action meeting? A. Q. Yes. And in fact, the board received a written

response from Dr. Ogbonnaya with some medical records regarding his patients on June 12, 2010? A. Q. Yes. Okay. And I know there has been some testimony

about the first emergency meeting, and that it involved just allegations regarding two patients. that? A. Yes.
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Do you recall

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Q.

And in fact at that time, again, looking at the

minutes, and that is Respondent's Exhibit 39, page 1 reflects consideration of allegations regarding patients KH and AT; is that correct? A. Q. Yes. And then going on to page 2, there is an

allegation -- I don't even know if I would call it an allegation. patient MG. It is a report regarding an interview of And then it goes on to talk about

allegations regarding patient Mary Ann G, but that is MAG, which is part of the complaint in this matter; is that correct? A. Q. Yes. And then it goes on to state that there was

another patient who had not yet been interviewed, patient MC; is that correct? A. Q. Yes So at the time of the first summary action

meeting, quite a bit of investigation had already occurred; is that correct? A. Q. That is correct. So the action that was taken was not just based

on the arrest? A. Q. No. And not just based on hearing about allegations
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regarding certain patients; is that correct? A. Q. That is correct. And in fact, looking at the minutes of that

summary action meeting and going to the last page of Exhibit 39, the large paragraph that is in the middle of the page about seven lines down and close to the right side, there is a sentence beginning with Dr. Krishna. A. Q. A. Uh-huh. Could you read that sentence, please? Dr. Krishna stated that based on the

preponderance of evidence the public health, safety, and welfare requires summary action of the board. Q. Okay. Thank you. And there has been some talk

about it, and I know some words that you used regarding the Z violation as looking at potential for harm. fact, are you referring to risk to the public? A. Q. Yes. And I know those are kind of interchangeable, In

but risk to the public? A. Q. Uh-huh. And when the board considers allegations at a

summary action meeting, are they typically looking at risk to the public? A. Yes. They are looking at definitions of
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unprofessional conduct and risk to the public. Q. The wording that Dr. Krishna used,

preponderance of evidence that the public health, safety, and welfare require summary action, is that your understanding of what the board considers at a summary action meeting? A. Q. Yes, it is. Going on to Respondent's Exhibit No. 40, and

that was the minutes of the June 30 meeting, as of that time, is it your understanding the investigation had continued and additional patients had come forward with allegations of sexual conduct? A. Q. Yes, that is correct. And in fact, again, it wasn't just merely the

second arrest that generated a summary action meeting; is that correct? A. Q. That's correct. And in fact, the board continued with its own

investigation separate from the police investigation; is that correct? A. Q. That's correct. And looking at the minutes of June 30, 2010, is

it evident from those meeting minutes that the investigator had interviewed patient JH prior to the summary action meeting?
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A. Q.

Yes, it is. Okay. And again, going through the minutes -I'm sorry, Anne. Are you on the

MS. GIESZL:

minutes of June 30 or June 15? MS. FROEDGE: MS. GIESZL: BY MS. FROEDGE: Q. And then going on to the last page of those June 30, Exhibit No. 40. All right. Thank you.

minutes, the third paragraph that starts with -- well, the motion prior to the third paragraph, so the second paragraph. motion? A. Q. A. The first motion of the page? Yes. Dr. Krishna moved to summarily suspend Could you read the first sentence of that

Dr. Ogbonnaya's medical license based on an imminent threat to public health and safety. Dr. Ogbonnaya

shall undergo a residential psychosexual evaluation at a board-approved facility within 30 days. Q. Okay. And again, the date of these minutes was

June 30, 2010? A. Q. Yes. And then looking at the following paragraph

that starts with Ms. Froedge, could you read that sentence of that paragraph, please.
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A.

Ms. Froedge requested that Dr. Krishna clarify

whether he finds the public health, safety, or welfare imperatively requires emergency action by the board pursuant to ARS 32-1451(d) and whether the motion is based upon the information contained in the investigation that is cited violation of ARS 32-1401(27)(z). Q. Okay. Could you please read the following

sentence as well, the rest of the paragraph? A. Dr. Krishna clarified that he believes the

physician is an imminent danger to the health and safety of the public and that his motion was based on the statutory violation cited in the investigation report. Ms. Shepherd pointed out that the

investigation report cited a violation of ARS 32-1401(27)(z) Q. Thank you. And then going back -- I am

flipping back to the first summary action meeting that was held on June 15, 2010. at that meeting? A. Q. correct? A. Q. That is correct. And in fact, legal counsel was permitted to
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Was Dr. Ogbonnaya present

Do you recall?

The record reflects that he was present. And he was present with legal counsel; is that

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address the board at that meeting; is that correct? A. Q. Yes. And in fact, there were persons who spoke on

calls to the public on Dr. Ogbonnaya's behalf; is that correct? A. Q. That is correct. Are you aware that a couple of days after the

summary suspension that occurred on June 30, 2010, that Dr. Ogbonnaya's counsel through Peter Fisher, through Mr. Bradford's office, sent a letter stating that Dr. Ogbonnaya would not be participating in a psychosexual evaluation due to Fifth Amendment concerns? A. Q. I do recall that. And are you aware of Dr. Ogbonnaya anywhere

down the line requesting being able to participate in a psychosexual evaluation through some other facility or provider? A. I am not aware of any requests that came into

our office. Q. And going back actually to the minutes,

Exhibit 40, of the summary action meeting on June 30, 2010, going to page 2 of those minutes, and looking at the last paragraph, could you please read the first sentence of the last paragraph.
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A.

Dr. Krishna stated that it is imperative for

Dr. Ogbonnaya to undergo a residential psychosexual evaluation even if it requires his legal counsel to take the matter to the judge to attempt to receive permission for the physician to leave the state. Q. Are you aware of any requests by

Dr. Ogbonnaya's legal counsel to seek permission for him to leave the state to participate in an evaluation? A. Q. I am not aware of any such requests. Regarding the board-approved evaluation and

treatment facility, you testified that the criteria -you know, one of the things in selecting an evaluator, an evaluation facility, is the fact that the board is looking for a multidisciplinary approach so that it is not just one person looking at the doctor. And that

could be beneficial to the doctor in that respect; is that correct? A. Q. Yes. Because again a team is evaluating the doctor,

not just one person's subjective opinion; is that correct? A. Q. Correct, yes. Also the facilities that the board typically

lists or provides a letter stating for the physician to obtain an evaluation at one of the three facilities, as
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was done in this case, are they typically facilities that have experience in evaluating professionals? A. Yes, they are. MS. GIESZL: Objection. No evidence in the

record that that is the case. BY MS. FROEDGE: Q. Okay. Are you aware of whether Pinegrove has

evaluated professionals on behalf of the board? A. Yes, they have. MS. GIESZL: testimony. Objection. Misstates prior

Move to strike the answer. THE COURT: Overruled.

BY MS. FROEDGE: Q. Are you aware of whether or not the Meadows in

Wickenburg has evaluated professionals in the past? A. Q. Yes, they have. Okay. And then let's see what the other And are you aware of whether or not

facility is.

Sante Center for Healing has evaluated -- has performed psychosexual evaluations of professionals in the past? A. Q. Yes, they have. And my questions I have just asked, I'm

referring to whether these facilities have performed psychosexual evaluations of professionals in the past. A. Yes, they have.
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Q.

Just to clarify, did you have an opportunity to

look at the file regarding whether at the outset of this case Dr. Ogbonnaya was provided with a document requesting that he surrender his license? A. Yes. I had an opportunity to review that, and

prior to either of the summary action meetings, there is a record that he was offered an opportunity and a consent agreement to restrict, voluntarily restrict, his license. But there is no indication in the record

that any surrender was ever suggested or discussed early on in the process. Q. Okay. MS. FROEDGE: questions. THE COURT: MS. GIESZL: Do you have any more questions? I have just a couple. Thank you. I have no further

REDIRECT EXAMINATION BY MS. GIESZL: Q. What is the difference in a residential

psychosexual evaluation and a psychosexual evaluation performed at a facility? A. I would use those two interchangeably. A

facility is going to be a place that provides services in a residential setting as opposed to a private
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practice.

So when I use the word facility, I am

describing a residential treatment facility. Q. Okay. Can you look back at the minutes on Ms. Froedge took you through Tell

June 30, 2010.

Dr. Krishna's discussion and her clarification.

me what the statutory basis for the board's action on June 30 was if you can. A. If it's not reflected -- the Medical Practice I couldn't cite

Act is what I keep in my frontal lobe.

a specific statute under which they do that. Q. Well, read the last paragraph. I think

Ms. Froedge took you through that and she had you -A. The last paragraph of the second page or the

very last paragraph? Q. A. Q. Where Dr. Krishna makes his motion. Dr. Krishna moved -- okay. As you read that as executive director, what

was the statutory basis that your board acted on June 30? A. Q. A. Would you like me to articulate that? Uh-huh. That there is a potential threat to the health,

safety, and welfare of the public were Dr. Ogbonnaya to continue to practice unrestricted, considering the allegations.
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Q. occur? A. Q. A.

Under what portion of the statute did that

Title 32 is the Medical Practice Act. Okay. But the specific statutory -I do not have that unless it's here

I'm sorry.

and you can point me to it. Q. A. Q. You can't point me to it? No. Are there any patients -- as of June 30, were

any patients included in the board's investigation that were not included in the police investigation? A. Q. A. Q. I do not know. You don't? I don't. So when Ms. Froedge asked you the questions

about the police and the board investigation, the fact is you don't know which patients were included in the police investigation and which were included in the board's, correct? A. I know that the board conducted interviews, but

I do not know which patients were in the police investigation and which patients were in our investigation. Q. So you are not able to factually say that the

board investigation was or was not identical in terms


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of the patients that you investigated to the police investigation? A. Q. That is correct. Now, I want to ask you something because the

written response from Dr. Ogbonnaya that I have seen was dated June 14, 2010. June 12, 2010. It was requested on

Is it possible that you misstated the

date when you were answering Ms. Froedge's questions? A. Which question? MS. FROEDGE: responsibility for that. Your Honor, I will take I misstated the dates. I

should have directed Ms. Wynn to the actual exhibits that are stamped. exhibits. BY MS. GIESZL: Q. Now, Dr. Ogbonnaya brought -- the written The dates are stamped on the

response was submitted to the board on the 15th of June, correct? MS. FROEDGE: exhibit. BY MS. GIESZL: Q. It's in his written response to the board. You Could you refer Ms. Wynn to the

asked her questions, and she didn't have exhibits in front of her, so I assumed she had them and she knew them. She responded easily to those questions, so
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that's why I just asked. A. Q. So can you repeat the question? Dr. Ogbonnaya's response, written response, was

provided to the board on the morning of June 15 with medical records. A. Q. Yes. Now, was that written response given to the Are you aware of that?

board before the summary meeting on the afternoon of June 15? A. I would have to go look at the records that

were given to them. Q. Would you assume that if it had been, it would

be reflected in the minutes of the meeting? A. I would assume that our internal records would

reflect that they were given as part of -- were given to the board with all of the other materials. Q. Okay. My question is do the minutes reflect

that Dr. Ogbonnaya's written response was given to the board before it made its ruling on June 15? A. I would have to read them to see if it

reflected it or not. Q. Can we rely on the minutes as being accurate as

to what the board was provided before they reached their decision on June 15? A. If the minutes reflect a list of items they
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were given, then you could.

If it does not

specifically list the items they were given, then I would need to go back and look at the investigative material that was provided to them. Q. All right. And Ms. Shepherd can tell us that

when she testifies tomorrow, correct? A. Q. I would presume she would be able to. Okay. Thank you. Now, at the meeting on the

15th, Ms. Froedge brought out that the minutes reflect that the board staff had spoken to three patients? A. Q. Uh-huh. The minutes do not reflect that the

investigator told the board staff anything about those patients or what staff had learned from the patients; is that correct? A. The minutes do not reflect it, in other words,

internal staff conversations? Q. No. Unlike the minutes on June 30,

Ms. Shepherd on June 15 did not present to the board specific information or facts from her conversations with the three patients, correct? A. I may be stuck, because as I am reading the

15th minutes of this meeting, during the interviews, Cage indicated, blah, blah, so it looks like it is identifying some of the content of those interviews to
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me. Q. All right. Now, did she -- there is no written

report for the board from Ms. Shepherd? A. I would have to see what the investigative

materials were. Q. Okay. Well -Objection. That misstates the

MS. FROEDGE: evidence.

Exhibit No. 12 is in evidence and is the

investigative report of Ms. Shepherd. MS. GIESZL: Wait. But the investigative

report, No. 12, was not there on June 15, I don't believe. that out. It came in after June 15. We can sort it out later. MS. FROEDGE: Let me look. BY MS. GIESZL: Q. What additional information did the board have The minutes may -- I don't know. Well, we can sort

on June 30 that it did not have on June 15 about Dr. Ogbonnaya? A. The additional information on the June 30 The

meeting included additional alleged victims.

minutes reflect that there were an additional six patients that had been interviewed since the June 15 meeting. Q. All right. Now, were all those patients not
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known to the board staff on the 15th when they conducted their investigational interview of Dr. Ogbonnaya? A. I do not know if all of them were known or not.

They had not all been interviewed. Q. Which of the six patients, additional six -Let me go back.

strike that.

On June 15 Ms. Shepherd tells the board she has interviewed three patients. On June 30, Ms. Shepherd

tells the board that she has interviewed, as you just testified, an additional six patients. of nine patients. That's a total

Do you know why the only -- four of

those patients were dropped? A. Q. No. Now, let me understand the process. After a

summary action and license suspension, which happened to Dr. Ogbonnaya on June 30, does the board continue its investigation? MS. FROEDGE: redirect. MS. GIESZL: Well, I just heard testimony about Objection. Beyond the scope of

nine patients that were only six of them -THE COURT: BY MS. GIESZL: Q. Does the board continue its investigation to
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I'm going to allow it.

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determine factual issues about the allegations that are at issue? A. Q. Yes, it can. Okay. What further investigation was done

after June 30? A. Q. I can't speak specifically about that. Is it fair to assume that if patients were not

included in the case that the board is here on, is because staff determined that those allegations didn't merit follow-up? MS. FROEDGE: scope of redirect. MS. GIESZL: I'm trying to determine the basis It goes Objection, again, beyond the

that the cases that were brought were brought.

to whether they were arbitrary and capricious, the evidence that was used to bring the case. THE COURT: MS. GIESZL: Thank you. THE COURT: MS. GIESZL: date change. THE WITNESS: THE COURT: MS. FROEDGE: Sure. Are we through for the day? Yes. I believe so.
602-485-1488

The objection is sustained. I believe that is all I have.

Thank you.

You may step down.

Thank you for accommodating the

Thank you.

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Hearing 9/1/2011

1086

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MS. GIESZL: THE COURT:

We are. We will be in recess until We are

September 2, 2011, at 8:30 in the morning. leaving the public session.

(The hearing adjourned at 11:45 a.m.)

OTTMAR & ASSOCIATES

602-485-1488

STATE OF ARIZONA COUNTY OF MARICOPA

) ) )

ss.

BE IT KNOWN that the foregoing transcript was taken before me, Debora Mitchell, a Certified Court Reporter, in and for the County of Maricopa, State of Arizona; that the foregoing proceedings were taken down by me using the Voice Writing method and translated into text via speech recognition under my direction; and that the foregoing typewritten pages are a full, true, and accurate transcript of all proceedings, all done to the best of my ability. I FURTHER CERTIFY that I am in no way related to any of the parties hereto, nor am I in any way interested in the outcome hereof. DATED at Phoenix, Arizona, this 12th day of September, 2011.

___________________________________ Debora Mitchell - Digital Signature AZ Certified Reporter No. 50768

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