P.R. Tumpati, M.D. v. State Board of Medicine (BPOA) ( 2024 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Prabhakara Rao Tumpati, M.D., :
:
Petitioner :
:
v. : No. 1361 C.D. 2023
: Submitted: September 9, 2024
State Board of Medicine (Bureau :
of Professional and Occupational :
Affairs), :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 4, 2024
Prabhakara Rao Tumpati, M.D. (Petitioner), petitions for review from
an October 25, 2023, final adjudication and order of the State Board of Medicine
(Board) within the Bureau of Professional and Occupational Affairs (BPOA),
finding Petitioner subject to disciplinary action and suspending Petitioner’s license
to practice medicine and surgery for a period of three years, including one year of
active suspension. For the reasons that follow, we affirm.
The following facts are undisputed and are ascertained from the
Board’s final adjudication and order, which incorporated a Board Hearing
Examiner’s findings of fact and conclusions of law.
Petitioner was licensed to practice medicine and surgery in
Pennsylvania in 2007. He practices in the fields of bariatric medicine and
management of sleep disorders. In September 2019, the BPOA issued an order to
show cause against Petitioner, alleging that he is subject to disciplinary action under
the Medical Practice Act of 1985 (Act)1 based on unprofessional conduct, failing to
conform to quality standards of the profession, failing to maintain records, and
dispensing medications improperly. Petitioner initially denied the allegations, and
the BPOA filed an amended order to show cause in March 2022.2 Specifically, the
amended order to show cause alleged that Petitioner failed to meet the standard of
care when conducting genital and/or physical examinations of three female patients,
including an undercover investigator from the Bureau of Enforcement and
Investigation posing as a patient, and one male patient.
The Hearing Examiner held hearings in June 2022 and January 2023.3
One of Petitioner’s female patients, K.K., testified that Petitioner examined her
during a 2017 appointment for weight loss. During the examination, Petitioner
touched K.K.’s genitals without advising her that he would do so or of the reason for
a genital examination, without providing a hygienic surface, privacy draping, or a
chaperone, and without wearing sterile gloves. Petitioner did not document the
genital examination of K.K. in his medical records as required by Board regulations.
At the end of K.K.’s appointment, Petitioner walked K.K. to medical
assistant Laura Parker (Medical Assistant) and left the area. The Medical Assistant
provided counseling to K.K. about the medications Petitioner’s office was providing
K.K. The Medical Assistant then retrieved unlabeled medication vials, wrote
1
Act of December 20, 1985, P.L. 457, as amended, 63 P.S. §§422.1-422.53.
2
The amended order to show cause can be found at page 241a of the Reproduced Record.
3
A full transcript of these proceedings can be found in the Certified Record at pages 608-
2395; 2409-455.
2
information on prescription labels, adhered the labels to the vials, and handed the
medications to K.K. without Petitioner reviewing the medications that were
dispensed. Furthermore, Petitioner failed to document that certain medication was
dispensed as required by the Achieving Better Care by Monitoring All Prescriptions
Program (ABC-MAP) Act (ABC-MAP Act).4
Another female patient, R.L., testified that during a 2017 weight-loss
examination, Petitioner touched R.L.’s belly and inner thighs near her genital area,
and Petitioner did not explain to R.L. what he was doing or why, did not provide
privacy draping or a hygienic surface, and did not wear sterile gloves.
At the end of R.L.’s appointment, Petitioner walked R.L. to the Medical
Assistant and left the area. The Medical Assistant provided counseling to R.L. about
the medications Petitioner’s office was providing to R.L. The Medical Assistant
then retrieved unlabeled medication vials, wrote information on prescription labels,
adhered the labels to the vials, and handed the medications to R.L. without Petitioner
reviewing the medications that were dispensed.
A male patient of Petitioner, C.O., testified that Petitioner conducted a
weight-loss examination of him in 2017, in which Petitioner used a stethoscope on
the outside of C.O.’s clothing and measured C.O.’s waist, but did not ask C.O. to lie
down or disrobe and did not touch C.O.’s bare skin.
At the end of C.O.’s appointment, Petitioner walked C.O. to the
Medical Assistant and left the area. The Medical Assistant provided counseling to
C.O. about the medications Petitioner’s office was providing to C.O. The Medical
Assistant then retrieved unlabeled medication vials, wrote information on
prescription labels, adhered the labels to the vials, and handed the medications to
4
Act October 27, 2014, P.L. 2911, as amended, 35 P.S. §§ 872.1-872.40.
3
C.O. without Petitioner reviewing the medications that were dispensed. The Medical
Assistant performed the same actions at C.O.’s follow-up appointment.
A Professional Conduct Investigator with the Bureau of Enforcement
and Investigation testified that, in October 2017, she posed undercover as
Petitioner’s patient and scheduled a weight-loss appointment under the name S.S.
During the appointment, Petitioner conducted an examination wherein he asked S.S.
to move to an unupholstered couch and lie down, partially removed S.S.’s shirt and
touched her bare skin, reached his hand into S.S.’s pants, and repeatedly touched
S.S.’s skin below the pubic hairline. Petitioner did not advise S.S. of what he was
doing or why, did not provide a hygienic surface, and did not wear sterile gloves.
At the end of S.S.’s appointment, Petitioner walked S.S. to the Medical
Assistant and left the area. The Medical Assistant provided counseling to S.S. about
the medications Petitioner’s office was providing to S.S. The Medical Assistant then
retrieved unlabeled medication vials, wrote information on prescription labels,
adhered the labels to the vials, and handed the medications to S.S. without Petitioner
reviewing the medications that were dispensed.
Gary S. Fischer, M.D., testified as an expert witness on behalf of the
BPOA in its prosecutorial role before the Board. Dr. Fischer testified that
Petitioner’s conduct, as described in the testimony of K.K., R.L., and S.S., failed to
meet the applicable standard of care. Dr. Fischer explained that the standard of care
requires: that a physician explain to the patient the purpose of any genital
examination, especially in a setting where a genital examination would not ordinarily
be expected; that hygienic surfaces and privacy draping be provided for
examinations involving disrobing; that a chaperone must be present for any genital
examination; and that physicians wear sterile gloves while performing a genital
4
examination. Dr. Fischer also testified that the extent of the examinations Petitioner
performed on K.K., R.L., and S.S. were not consistent with Petitioner’s stated
purpose of prescribing the correct medication.
Petitioner testified on his own behalf, stating that he performed
examinations on K.K., R.L., and S.S. to confirm the presence of a hysterectomy scar
for purposes of prescribing weight-loss medication that may cause birth defects. He
stated he did not perform a similar examination on C.O. because C.O. was male and
could not become pregnant.
After the hearing and briefing by the parties, the Hearing Examiner
issued a proposed adjudication and order, including findings of fact and conclusions
of law.5 The Hearing Examiner credited the testimony of K.K., R.L., S.S., and C.O.
over Petitioner’s testimony to the extent of any conflict. The Hearing Examiner
further credited Dr. Fischer’s testimony concerning the requisite standard of care
and held that Petitioner failed to meet that standard. The Hearing Examiner
recommended the imposition of a civil penalty and a one-year suspension of
Petitioner’s medical license and that the suspension be stayed as long as Petitioner
complies with conditions of probation, including use of a chaperone during
examination of each patient.
In the final adjudication and order,6 the Board adopted the Hearing
Examiner’s findings of fact and conclusions of law, but modified the Hearing
Examiner’s reasoning and sanction, determining that immediately staying the
proposed license suspension in favor of probation, including chaperoned
examinations, is not “sufficient based on the findings of fact and conclusions of
5
The proposed adjudication and order are found on page 335a of the Reproduced Record.
6
The final adjudication and order are found on page 384a of the Reproduced Record.
5
law.” Final Order and Adjudication at 2. Instead, the Board determined that a one-
year period of active (i.e., non-stayed) license suspension was warranted, followed
by a period of probation, and it imposed that sanction in addition to the civil penalties
and other sanctions recommended by the Hearing Examiner. Id. at 2-4.
Petitioner filed a petition for review and an application for supersedeas
with this Court.7, 8
“[A]ppellate review of a [licensing] board’s disciplinary sanction is
limited to determining whether the board flagrantly abused its discretion or executed
its duties or functions in a purely arbitrary and capricious manner.” Blair v. Bureau
of Professional and Occupational Affairs, State Board of Nursing, 72 A.3d 742, 750
(Pa. Cmwlth. 2013). The Board is the ultimate fact-finder and the Court is bound
by the Board’s determinations of evidentiary weight and credibility. Id. This Court
must “exercise judicial restraint in reviewing” the Board’s choice to impose a
particular sanction. Slawek v. State Board of Medical Education and Licensure, 586
A.2d 362, 366 (Pa. 1991). If the Board explains, even briefly, the factors it
considered in crafting a sanction, which could include mitigating factors and the
need to deter similar conduct, it becomes “self-evident that the [B]oard’s decision
was not capricious or a flagrant abuse of discretion[,]” and this Court will affirm the
sanction imposed. Id.Presently, Petitioner does not challenge the findings of fact and
conclusions of law set forth in the Board’s final adjudication and order; rather,
7
Our review of an order of the Board is limited to determining whether constitutional rights
have been violated, whether findings of fact are supported by substantial evidence in the record,
and whether any errors of law have been committed. Gleeson v. State Board of Medicine, 900 A.2d
430, 435 (Pa. Cmwlth. 2006).
8
Petitioner’s application for supersedeas was denied in a single-judge memorandum
opinion dated December 8, 2023.
6
Petitioner only asserts that the Board erred or abused its discretion in imposing an
active license suspension – a harsher sanction than the one recommended by the
Hearing Examiner. Petitioner emphasizes that alternative punishment was available,
including telemedicine. Furthermore, while the Board espouses an interest in public
welfare and safety, the final adjudication and order was not issued until almost six
years after the alleged offenses occurred. Finally, Petitioner maintains it is clear that
he “truly cares about his patient[s’] wellbeing” by continuing to stay “on top of”
research in the “ever emerging area of bed side manner.” Petitioner’s Brief at 10.
He elaborates:
Petitioner even took it a step further by trying to make the
atmosphere feel more comfortable by having a “grandma’s
living room” ambiance. [] Petitioner also addresses
reproductive issues that may arise from taking of weight[-
]loss medications that are typically prescribed and how he
handles physically examining patients so as not to offend,
stress, or cause anxiousness. [] Petitioner clearly
displayed the utmost care of the wellbeing of his patients
in this manner. Therefore, the Board abused it’s [sic]
discretion by not taking these mitigating factors into
consideration.
Id. (citations omitted).
The Board responds that it correctly assessed the seriousness of
Petitioner’s violations and thoroughly explained its reasons for imposing a harsher
sanction than the one recommended by the Hearing Examiner. The Board asserts
that it considered the entire record in this matter, including the detailed testimony of
Petitioner’s “appalling treatment of several female patients who placed their trust in
Petitioner’s care.” Board’s Brief at 18. The Board maintains that Petitioner
exhibited a complete disregard of his patients’ emotional and physical wellbeing
during the examinations by “placing them in extremely vulnerable situations without
7
proper protection, explanation, or oversight by a chaperone.” Id. Furthermore, the
Board highlights Petitioner’s “glaring pattern” of prescribing controlled substances
in a manner that violated several laws and Board regulations. Id. The Board argues
that Petitioner’s repeated actions constitute an extreme violation of patient trust and
necessitate severe consequences. Finally, the Board underscores its concern over
Petitioner’s failure to take responsibility for his actions and his refusal to
acknowledge wrongdoing.
The Board further observes that it did indeed consider the only
mitigating factor presented to it, i.e., the length of time that had passed since the
violations occurred and the fact that Petitioner had not been charged with any further
violations. The final adjudication and order acknowledges these facts; however, the
Board emphasizes the egregious nature of Petitioner’s actions and the importance of
deterring future conduct of this nature. It is the Board’s hope that the disciplinary
sanction imposed “will send a message that this type of behavior is not acceptable
in the practice of medicine in this Commonwealth” and will deter similar conduct
from occurring. Board’s Brief at 19.
Based on our review of the record and the particularly disturbing nature
of the unchallenged findings of fact and conclusions of law made by the Board, we
cannot say the Board erred in imposing the sanction of an active license suspension.
Here, the Board thoroughly explained the reasons for its sanction in painstaking and
graphic detail. Furthermore, the Board searched for mitigating factors but found
none, noting that Petitioner failed to take responsibility for wrongdoing at any point,
and instead consciously attempted to conceal his misconduct. We agree that the
passage of time alone does not suggest mitigation. Under the circumstances, there
is no indication in the record that the Board flagrantly abused its discretion or
8
executed its duties or functions in a purely arbitrary and capricious manner. Because
the reasoned basis of the Board’s sanction in this case is “self-evident,” Slawek, 586
A.2d at 366, we conclude the Board’s final adjudication and order must be affirmed.
MICHAEL H. WOJCIK, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Prabhakara Rao Tumpati, M.D., :
:
Petitioner :
:
v. : No. 1361 C.D. 2023
:
State Board of Medicine (Bureau :
of Professional and Occupational :
Affairs), :
:
Respondent :
ORDER
AND NOW, this 4th day of November, 2024, the October 25, 2023,
final adjudication and order of the State Board of Medicine is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge