\
.
f
BEFORE THE MINNESOTA
STATE OF MINNESOTA
COUNTY OF RAMSEY
BOARD OF MEDICAL EXAMINERS
In the Matter of the
Medical License of
Thomas C.Eisenstadt, MD
FINDINGS OF FACT,
CONCLUSIONS AND ORDER
The above-entitled matter came on for a prehearing conference before
Administrative Law Judge Peter C. Erickson on Tuesday, April 14, 1987, at the Office
...........
of Administrative Hearings;'""Minneapolis, Minnesota. Paul G. Zerby, Special Assistant
A ttorney General, Suite 136, 2829
University Avenue Southeast,
Minneapolis,
Minnesota, appeared on behalf of the Minnesota Board of Medical Examiners Discipline
Committee. Jack S. Nordby, from t!1e law firm of Meshbesher, Singer &. Spence, Ltd.,
1616 Park Avenue, Minneapolis, Minnesota 55404, appeared on behalf of Thomas C.
bf
,.'
Eisenstadt, MD (Respondent).
I
A t the commencement of the prehearing conference, counsel for the
Discipline Committee served and filed a m,otion for summary judgment. The parties
I
then stipulated that the matter would be submitted to the Administrative Law Judge
by way of a written record, which would be the basis of the Administrative Law
Judge!s findings of fact and conclusions.
On June 16, 1987, the Administrative Law Judge issued his Findings of
Fact, Conclusions and Recommendation (Report). Pursuant to Minn. Stat. § 14.61, the
final decision of the Board contained herein was not made until the Report of the
Administrative Law Judge was made available to the parties for ten days and an
opportunity was afforded to each, party adversely affected to file exceptions and
present argument to the Board.
133
On June 18, 1987, counsel for Respondent filed Respondent's Exceptions.
On June 25, 1987, counsel for the Board's Discipline Committee filed Board Discipline
Committee Exceptions to the Report of the Administrative Law Judge.
On July 1,
1987, Catherine E. Avina, Special Assistant Attorney General, who was appointed as
advising counsel to the Board in this matter and who had no part in the investigation or
prosecution concerning these proceedings, forwarded to Board members the entire.
record in the .case.
The Board of Medical Examiners convened on July 11, 1987, to entertain
oral argument from
Committee.
-
cOl\ns~
.... .
for the Respondent and for the Board's Discipline
At this meeting, counsel for the Discipline Committee and for
Respondent provided oral argument.
Respondent was also present.
Thereafter, the
Bqard deliberated this matter after excusing Respondent and his counsel and the
Discipline Committee and its counsel. Pursuant to Minn. Stat § 214.10, subd. 2, the
Board members who were consulted during the course of the investigation and who
comprised the Board's Discipline Committee were not present during the deliberations
and did not vote on any matter pertaining to this case.
Based upon all the files, exhibits and proceedings, the Report of the
Administrative Law Judge and oral argument of counsel, the Board states the
following:
STATEMENT OF ISSUES
The issues to be determined in these proceedings are whether Respondent
violated Minn. Stat. § 147.091, subd. l(b), (f), (g), (k), (1), (r) and (u).
Based upon all of the proceedings herein, the Board makes the following
findings of fact:
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134
FINDINGS OF FACT
The Board adopts and incorporates as its own findings 1 through 11 of the
Report of the Administrative Law Judge, attached hereto and made a part hereof.
Based upon the foregoing findings of fact, the Board makes the following
conclusions:
CONCLUSIONS
The Board adopts and incorporates as its own conclusions 1, 2, 3, 5, 6, 7 and
8 of the Report of the Administrative' Law Judge.
additional conclusion:
The Board makes the following
0.--
Dr. Eisenstadt's failure to answer truthfully concerning his use of a
controlled substance on his application for licensure constitutes fraud within the
meaning of Minn. Stat. § 147.091, subd. l(b).
Based upon the foregoing conclusions and for the reasons set forth in the
attached Memorandum of the Board, the Board issues the following order of
suspension:
ORDER OF SUSPENSION
1.
IT IS HEREBY ORDERED that the license of Respondent to practice
medicine and surgery in the State of Minnesota is hereby suspended for six months;
2.
IT IS FURTHER ORDERED that the suspension referred to in
paragraph 1 shall. be stayed except for a period of four weeks, provided that
Respondent ftllfills the following conditions and restrictions during the course of the
12 months immediately following the issuance of this Order:
a.
During the next 12 months Respondent shall provide a
total of four weeks of in-ldnd public service in a program acceptable to the
Discipline Com mittee.
The nature of the program shall be related to
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135
"
,~
.. ......
",
-'. l
~
Respondent's chemical dependency and recovery.
preapproved by
b.
th~
The program shall be
Discipline Committee;
The four week program of public service shall constitute
the unstayed period of suspension referred to in paragraph 1. During those
times when Respondent is providing his public service, he shall not practice
medicine or surgery in any fashion; that is, he shall not attend his office,
see patients, be available for emergencies or be on-call, or do hospital
rounds;
c.
Respo~ent
shall abstain completely from all mood-
-..--
altering chemicals, including alcohol, marijuana, and cocaine, unless they
are prescribed by a treating physician who has been informed of
Respondent's drug use history;
d.
Respondent shall attend
monthly
Physicians Serving
Physicians meetings;
e.
Respondent shall attend weekly Alcoholics Anonymous
Monthly reports shall be submitted to the Boa-rd from
meetings.
Respondent's AA sponsor regarding his attendance and progress;
f.
Respondent shall attend cocaine support group meetings
monthly. Quarterly reports shall be submitted to the Board from a sponsor
in said group regarding his attendance and progress;
g.
Respondent, at his own expense, shall be fully evaluated
by a psychiatrist approved by the Discipline Committee and. who shall
report to the Discipline Committee regarding said evaluation. Thereafter,
Respondent shall meet monthly,
also at his own expense,
with a
psychiatrist for treatment and said psychiatrist shall submit to the Board
quarterly reports regarding Respondent's attendance and progress;
-4-
136
.... :.'
"
h.
Respondent
shall
obtain
acceptable to the Discipline Committee.
a
supervising
physician
Respondent shall immediately
advise the supervising physician of any prescription or over-the-counter
medications being taken by Respondent.
The supervising physician shall
order, without notice, urine and blood tests of Respondent on a random
basis, but no less frequently than twice a month. The urine screens shall
be:
1)
2)
Observed in their drawing;
,
"...Handled
through
legal
chain
of
custody
.,--","
methods;
3)
Analyzed by a forensic laboratory approved by
the Board which uses gas chromotography and a negative
control;
4)
Paid for by Respondent.
The biological fluid testing shall take place at Hennepin County Medical
Center, 701 Park Avenue South, Minneapolis, Minnesota 55415, ,and shall
screen for opiates, benzodiazepines, and other drugs of abuse, including
alcohol.. If the blood and urine testing is to be completed through the mail,
the drug screening tests used must be those obtained from Hennepin
County Medical Center.
mail
mu~t
All blood and urine tests processed through the
be directed to the attention of Calvin Bandt, MD, at Hennepin
County Medical Center.
The supervising physician shall report to the
Board the results of those tests on a monthly basis and immediately upon
becoming aware of any evidence from these tests or otherwise that
Respondent has used a drug of abuse, including alcohol, marijuana or
cocaine.
The supervising physician shall meet with Respondent monthly
-5-
1.37
'. ,
and also report to the Board monthly on the quality of Respondent's
medical practice;
i.
Respondent shall meet on a quarterly basis with a
designated Board member.
Such meeting shall take place at a time
mutually convenient to Respondent and the designated Board member. It
shall be Respondent's obligation to contact the design,ated Board member
to arrange each of the quarterly meetings. The purpose of such meetings
. shall be to review Respondent's progress under the terms of this Order.
j.
Respondent shall pay to the Board a civil penalty in the
".
.
~
....
~
.
amount of$5,OOO.
3.
If Respondent shall fail, neglect, or refuse to fully comply with each
of the terms,provisions, and conditions herein, the license of Respondent to practice
medicine and surgery in the State of Minnesota shall be suspended immediately upon
written notice of the Board to Respondent, such suspension to remain in full force and
effect until Respondent shall petition the Board to terminate the suspension after a
hearing.
Nothing contained herein shall prevent the Board from
suspending
Respondent's license to practice medicine and surgery in the State of Minnesota after
any such hearing.
Dated:
JUly::l-/-, 1987
MINNESOTA BOARD OF
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138
-.
'.
MEMORANDUM
The Administrative Law Judge found that Respondent began consuming
alcohol during his high school years and continued that practice through medical
school During college, Respondent began using marijuana on a "social" basis and also
continued that use through medical school.
Respondent applied for a license to
practice medicine on June 9, 1980. As part of the application process Respondent was
. required to fill out a questionnaire which listed as question number 17, "Do you now, or
have you ever, personally used or administered to yourself any controlled substances,
or have you been treatedJor alcohol or drug use?" Respondent answered "no" to this
~~
...".'--
question. Report, p. 2.
The Administrative Law Judge also concluded that marijuana is a
controlled sUbstance pursuant to Minn. Stat. § 152.02,
subd~
2(3) (1986). Report, p 5..
Nonetheless, the Administrative Law Judge erroneously concluded that Respondent's
failure to answer truthfully concerning' his use of a "controlled substance" on his
application for licensure did not constitute "fraud" or "cheating" within the meaning of
Minn. Stat. § 147.091, subd. l(b) (1986).
Under Minnesota law, a cause of action for fraud has the following eleven
elements:
1.
There must be a representation;
2.
That representation must be false;
3.
It must have to do with a past or present fact;
4.
That fact must be material;
5.
It must be susceptible of knowledge;
6.
The representer must know it to be false, or in the alternative,
must assert it as of his own knowledge without knowing whether
it is true or false;
-7-
139
.
,
,
, "
,
,
7.
The representer must intend to have the other person induced
to act, or justified in acting upon it;
8.
That person must be so induced to act or so justified in acting;
9.
That person's' action
representa tion;
10.
That person must
11.
That damage must be attributable to the misrepresentation,
that is, the statement must be the proximate cause of the
injury.
s~ffer
must
be
in
reliance
upon
the
damage;
Juster Steel v. Carlson Companies, 366 N. W.2d 616, 619-620 (Minn. App. 1985). As the
.following will
demonstrat.~,
the evidence in the record before the Board clearly
supports the required elements of fraud in this matter and supports a conclusion that
Respondent's answer of "no" to question 17 violated Minn. Stat. § 147.091, subd. l(b)
(1986).
The evidence in the record shows that Respondent made a false
representation that had to do with a past fact which was susceptible of knowledge and
which he knew to be false. Respondent's answer of "no" to question 17 represented to
the Board that' he had not then or ever personally used or administered to himself a
controlled substance.
In fact, the record shows, and the Administrative Law Judge
found, that,Respondent had used marijuana during his college and medical school
years. The representation had to do with a past fact which was clearly susceptible of
Respondent's knowledge.
representat~o~
Moreover, Respondent knew that he was giving
8.
false
to the Board. See Affidavit of Thomas C. Eisenstadt, MD, para. 12.
The Administrative Law Judge concurred that "the record in this matter shows that
Dr. Eisenstadt knowingly made a misstatement of act when he answered no to the
question posed in the license application concerning use of controlled substances."
Report, p. 6. Thus, sUbstantial evidence in the record shows that elements 1, 2,3, 5
and 6 have been met.
-8-
:1.40 '
The record also demonstrates that the represented false fact was materiaL
One of the requirements for licensure as a physician and surgeon in the State of
Minnesota is that the applicant demonstrate that he or she has not engaged in conduct
warranting disciplinary action against a licensee. If the applicant does not satisfy this
requirement, the Board may refuse -to issue a license unless it determines that the
public will be protected through issuance of a license with conditions and limitations
the Board considers appropriate.
Minn. Stat.
§
147.02, subd. l(g) (1986).
Conduct
warranting disciplinary action against a licensee includes inability to practice
medicine with
reasonabl~
~
...
skill and safety to patients by reason of use of drugs and
.......,.
~-"
becoming addicted or habituated to a drug or intoxicant.
Minn. Stat.
§
147.091,
subd. 1(1) and (r) (1986).
An answer of lIyes ll to question 17 on the application for licensure does not
automatically result in refusal of licensure. It does, however, raise a red flag for the
licensing committee of the Board. The Board then has an opportunity to explore with
the applicant his or her drug use and to fashion whatever conditions or limitations on a
grant of license that are in keeping with its responsibility to protect .the public from
impaired physicians.
The Board takes particular issue with the Administrative Law Judge's
implication that the Board did not take any action on Respondent's application that it
would not have taken otherwise if the question had been answered truthfully.
_The record shows that in seven instances applicants have answered lIyesll to
question- 17. In five of those instances the Board issued a license with conditions such
as requiring a supervising physician, random biological screens ordered by the
supervising physician, participation in a structured aftercare program, reports to the
Board certifying laboratory results, regularly scheduled meetings with a chemical
dependency counselor or psychiatrist, regularly scheduled meetings with a designated
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t41
Board member, and Board approval of a practice setting.
In two other instances,
licenses were issued without restrictions, basecl on the applicant's full disclosure of use
of controlled sUbstances and treatment for alcohol or drug abuse, successful
completion of no more than one treatment program prior to
applica~ion,
documented
post-treatment sobriety of at least one year, and continued active participation in
structured aftercare and impaired physicians programs.
See Affidavit of David
Ziegenhagen.
Thus, the answer to question 17 is material to the license application
process. Requirement 6 o{ the elements for fraud is met in the present matter.
-
...... ~
-
The record also demonstrates that Respondent intended to have the Board
act upon his false representation, that the Board was so induced to act, and that the
Board acted in reliance upon the representation. Respondent's affidavit states:
Another important aspect of my negative answer to question 17 is this. As
I stated at the conference, I suppose I was afraid that to disclose the use of
marijuana would automatically cause me to be refused a license.
Affidavit of Thomas C. Eisenstadt, MD, para. 12.
Thus, Respondent intended the
Board to act on his application without knowledge' of his past drug use of controlled
substances out of a fear that such knowledge would result in his license application
being denied. , The Board did in fact act in reliance on his application and issued an
unconditional license to him. The Board's grant of an unconditional license was in part
on reliance upon Respondent's answer of "noll to the question of whether he had in the
.past used Qr . administered controlled substances to himself. . Therefore, elements 7, 8,
and 9 of a cause of action for fraud are met by the record of evidence in this matter.
Finally, the evidence in the record shows that the Board suffered damage
and that that damage is attributable to Respondent's misrepresentation. The damage
suffered by the Board was a subversion of its licensure process.
The Board was
deprived by Respondent's false representation of an opportunity to explore with him
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142
his past and current chemical use at the time of his license application. The Board
therefore granted an unconditional license to this young physician who was using
cocaine within three years and, within another two years, Itfree-basinglt or smoking
coclline in a way that has a greatly enhanced and
addi~ting
affect.
Respondent
became impaired to the extent that he was using approximately 3 1/2 grams of cocaine
per week. His drug use resulted in his missing work because he could not see patients
after using the night before, and in his using cocaine once when he was on calL He
. threatened suicide in March of 1985, was apprehended by the police, placed on hold in
a hospital unit and
releas~?
to a chemical dependency program.
Respondent was
subsequently in chemical dependency treatment on three different occasions.
An article from the New England Journal of Medicine, submitted into the
record by Respondent himself, discusses at length recreational drug use among
practicing physicians and medical students and the serious implications this has for
licensing boards who will eventually deal with these physicians and medical students as
impaired physicians. As the authors state:
Analysis of the limited available evidence suggests that the amount
of self-treatment and instrumental use by physicians has changed little
over the past several decades, whereas recreational use has greatly
increased over the same period.
Surveys of recreational drug use have found increasingly higher
percentages of physician users over time, especially after adjustment for
geographic area and medical specialty. Moreover, the present survey and
other studies found that the recreational drugs used by young physicians
now include not only marijuana but the full spectrum of psychoactive
drugs, and that recreational drug use has become an important cause of
drug-related impairment for them.
Surveys of drug use among medical students since the mid-l960s have
presaged this increased recreational use by physicians and its probable
continued rise.
As one would predict from the surveys of students, the proportion of
physicians who have ever used drugs recreationally is now over 50 percent
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143
among those up to 40 years old. What one could not have predicted,
however, is that many of these physician drug users - 38% of users under
age 40 - have continued to use drugs, principally marijuana. and cocaine, for
recreational purposes. Recreational use is more likely than self-treatment
to result in adverse affects. Unless these patterns can be changed, as new
cohorts of medical students with relatively high use rates graduate and
older physicians with low use rates retire, the proportion of all physicians
using drugs recreationally and the subgroup becoming impaired as a result
should grow steadily for some time.
"Psychoactive Drug Use Among Practicing Physicians and Medical Studetlts," New
England Journal of Medicine, Vol. 315, No. 13, pp. 805, 808-809 (September 25, 1986).
D.Z .
•...~
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1.44
I CONTAINS NON-PUBLIC DATA I
SBME-87-005-PE
4-0903-1315-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA STATE BOARD OF MEDICAL EXAMINERS
In the Matter of the
Medical License of
Thomas C. Eisenstadt, MD
. FINDINGS OF FACT,
CONCLUSIONS AND
RECOMMENDATION
A Prehearing Conference on the above-entitled matter was held before
Administrative Law Judge Peter C. Erickson at 9:00 a.m. on Tuesday, April 14,
1987 at the Office of Administrative Hearings, Minneapolis, Minnesota.
Paul G. Zerby, Special Assistant Attorney General, Suite 136, 2829 University
Avenue Southeast. Minne~lis, Minnesota 55414, appeared on behalf of the
Minnesota Board of Medical Examiners. Jack S. Nordby, from the firm of
Meshbesher, Singer & Spence, Attorneys at Law, 1616 Park Avenue, Minneapolis,
Minnesota 55404, appeared on behalf of Thomas C. Eisenstadt, MD, Respondent
herein.
.
At the commencement of the Preh~aring Conference, the Board staff served·
and filed a Motion for Summary Judgment. The parties then stipulated that
this matter would be submitted to the Administrative Law Judge by way of a
documented record. ·Subsequently, the Judge issued a Prehearing Order dated
April 15, 1987, which set forth a briefing schedule which included the
submission of affidavits and other documentary evidence in this case. The
parties agreed that the Judge would make Findings of Fact based upon the
documentary evidence.
Notice is hereby given that, pursuant to Minn. Stat. § 14.61, the· final
decision of the Board shall not be made until this Report has been made
available to the parties to the proceeding for at least ten days, and an
opportunity·has been afforded to each party adversely affected to file
exceptions and present argument to the Board. Exceptjons to this Report, I t
any, shall be filed with the Board at Suite 106, 2700 University Avenue West,
St. Paul, Minnesota 55114. Pursuant to Minn. Stat. § 214.10, subd. 2, a board
member who was consulted during the course of an investigation may participate
at the hearing, but may net vote on any matter pertaining to the case.
STATEMENT OF ISSUES
The issues to be determined in this proceeding are whether Respondent
violated 1-linn, Stat. § 147.091, subds. 1<b), (f), (g), (k), ( l ) , (r) and (u)
(1986); and if any violations are proven, whether disciplinary action should
be taken against Respondent's license to practice medicine.'
'Respondent listed and argued 16 legal issues as part of its responsive
Many o~ these lssues are outside the authority ef the
Administrative Law Judge or are w1thin the exclusive jurisdiction of the Board
memorand~m.
of Medical
related 2.nd
Examiner~"
ai:? bei'1g
Re~~ondent
i"2,j:;cd
admits that most of these jss~es are interrevie\"' in an aporo!),-iate roru;n.
rO'" possibie la::er
! : ....,.
Based upon all of the records~ files and proceedings herein,
Aqministrative law Judge makes the following:
th~
FINDINGS OF FACT
1.
Thomas Eisenstadt is a 34-year-old physician who is board certified
in internal medicine and allergy and immunology. He maintains a practice with
his 72-year-old father. William Eisenstadt. and two other physicians located
at 221 Medical Arts Building, 825 Nicollet Mall, Minneapolis, Minnesota. Or.
Eisenstadt graduated from the University of Minnesota Medical School in 1979
and took his residency at Hennepin County Medical Center from June 23, 1979
through June 24. 1980.
2.
Dr. Eisenstadt began consuming alcohol during his high school years
and continued that practice through medical school. During college.
Eisenstadt began using marijuana on a "social" basis and continued that use
through medical school.
Eisenstadt aP'Q..1.J.Rd for a license to practice medicine on June 9,
3.
1980. As part of the a~plication process. Eisenstadt was required to fill out
a questionnaire which listed as question no. 17. "Do you now. or have you
ever. personally used or administered to yourself any controlled substances,
or have you been treated for alcohol or drug use?" Dr. Eisenstadt answered no
to this question.
4.
In 1982, Dr. Eisenstadt began an infrequent use of cocaine which
continued through approximately late 1984. In January of 1985, Eisenstadt
began "free-basing" cocaine which produced a greatly enhanced and addicting
effect. Dr. Eisenstadt "used" approximately three _and one-half grams of
cocaine per week. usually only on weekends. This drug use resulted in Dr.
Eisenstadt missing several days of work because he would not see patients
after "using" the night before.
5.
In approximately March of 1985. Dr. Eisenstadt threatened to kill
himself. Police officers were dispatched to his home and upon their arrival,
he fled the scene. He was subsequently apprehended and placed in a hold
unit. Dr. ~isenstadt was released for a chemical dependency evaluation and at
that time entered- Twin Town Treatment Center on March 25, 1985. Dr.
Eisenstadt completed treatment at Twin Town, began his aftercare program,and
resumed practice. However, Dr. Eisenstadt began using cocaine again shortly
thereafter.
i
6.
In. July of 1985, Dr. Eisen~t2.dt did not report for work on one day
because he had used cocaine the night before. He continued sporadic use of
cocaine during his period of aftercare treatment through November of 1985.
Beginning in January of 1986, Dr. Eisenstadt's use of cocaine b~gan increasing
and he again began to miss work.
Dr. Eisenstadt initiated contact with a chemical dependency counselor
7.
and reentered treatment in early May of 1986. He remained in treatment for
one week and then left the program. Dr. Eisenstadt used cocaine on one more
occasion ten days later, a night that he was on call. Dr. Eisenstadt then
readmitted himself to Parkview Treatment Center and began a four-week
treatment program on t·lay 31, 1986 which concluded on June 27, 1986.
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146~ ,,-~
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1
J""X.
_. ..
8.
During his episodes of treatment, Eisenstadt met with his medical
partners concerning his "problem" and with an attorney.
9.
Dr. Eisenstadt has maintained his sobriety since the conclusion of
his treatment ending in late June of 1986. To assist in the continuation of
an intended life-long sobriety; Dr. Eisenstadt does the following:
A.
attends Parkview aftercare treatment every ruesday
fr~n
7:00 to
8: 30 p.m.;
B.
attends an Alcoholics Anonymous meeting every Monday evening;
C. attends other AA meetings from time to time because it is helpful
to him and he desires to help others;
D.
is in continuing therapy with Dr. BUrton Nolan, a licensed
clinical psychologist. every two to four weeks;
E.
attends
g~ings
of Cocaine Anonymous, at least once a month;
F.
attends the monthly meetings of Physicians Serving Physicians,
the organization specifically for deoendent physici~ns;
G. speaks at least once a week by phone or in person with some other
individual involved in chemical dependency;
H. has consented to have his u~ine sampled on a random basis as
requested by Dr. Bullock of the Hennepin County Medical Center, and
has done this twice per month for several months. All of the tests
have shown no drug use;
10. All three of Or. Eisenstadt's associates are aware Qf his chemical
depender.cy and all work closely with him. Consequently. Eisentadt is working
under their continual observation on a daily basis.
11. Dr. Ejse~stadt en~eavors consistently to maintain his sobriety and
continue his practice of mec1cine in a satisfactory manner.
R~LEVANT
la7.0S;
GROU~DS FO~
STATUTORY PROVISIONS
JISCIPLINARY ACTION.
Subd'v's~on I.
Grou~ds
grant a l'~ense or may
listed. The board may refuse to
impose d1scipljnary action as
describec in section 147.141 against any physician. The
followirg cc~duc~ Is prohibited and is grou~ds for
disC1p11~cry 2c:~on:
* * *
(b)
Ottaining a 1 jce~se by fraud or cheating, or
to subvert the 1 icensing examinatIon process.
Cond~:t wnjch subver 5 or attempts to subvert theljcensing
examination ~rocess ~cludes, but j~ not limIted to:
attemptin~
-3-
147
.' .
"
(1) conduct which violates the security of the examination
materials, such as removing examination materials from the
examination room or having unauthorized possession of any
portion of a future, current, or previously administered
licensing examination; (2) conduct which violates the
standard of test administration, such as communir.ating with
another examinee during administration of the examination,
copying another examinee's answers, permitting another
examinee to copy one's answers, or possessing unauthorized
materials; or (3) impersonating an examinee or permitting
an impersonator to take the examination on one's own behalf.
* '" *
<f) Violating a rule promulgated by the board or an order
of the board, a state, or federal law which relates to the
practice of medicine, or in part regulates the practice of
medicine, or a state or federal narcotics or controlled
substance la:l"i,
,,-
(g) Engaging in-any unethical conduct; conduct likely ,to
deceivE, defraud, or harm the public, or demonstrating a
willful or careiess disregard for the health, welfare or
safety of a patient; or medical practice which ;s
professionally incompetent. in that it may create
unnecessary danger to any patient's life, health, or
safety, in any of which cases, proof of actual injury need
not be established.
* * *
(k) Engaging in unprofessional conduct. Unprofessional
conduct shall include any departure from or the failure to
conform to the minimal standards of acceptable and .
prevailing medical practice in which proceeding actual
injury to a pa:1ent need not be established.
(1)· ,Inab'lity to pract~ce medlcine with reasonable skl11
and safety to patients by reason of i1lness, drunkenness,
use of drugs, narcotics, chemlcals or any other type of
material or 2S a result of any mental
or physical
,
CCnQ;:l~l. iG~'~~:~g de:eriorrition tn:(;u~n
process or loss cf ~Jtor skills.
,
*
(r)
3eco:ni ng
.Ji:
*'
a:c 1c ted or hab i t~ia ted
to a drug
Ok"
in:o:~iccnt.
* * *
(u) Fajl~te to ~2ke reports as req~jred by section 147.111
or to cooperate ·with an investigation of the board as
required by ~Ection 147.131.
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148
I
I
Ba.sed upon all of the forego.ing Findings of Fact, the Administrative Law
Judge makes the following:
I
I
.j
CONCLUSIONS
1.
The Minnesota Board of Medical Examiners and the Administrative Law
Judge have jurisdiction over this matter pursuan: to Minn. Stat. §§ 14.50 and
147.091 (1986). The Notice of Hearing in this matter was. in all respects.
proper. The Board has complied with all other sUbstantive and procedural
requirements of law or rule.
2.
PurslJant to Minrt. Rule l400.5S00K .• the Administrative Law Judge may
"recommend a summary disposition of the case or any part thereof where there
is no genuine issue as to any material fact or recommend dismissal where the
case or any part thereof has become moot or for other reasons." There are no
disputed issues of material fact in this matter, therefore, summary
disposition is appropriate.
3.
Marijuana is a controlled
subd. 2(3) (1986).
~ubs~ance
pursuant to M'nn. Stat. §lS2.02,
4.
Dr. Eisenstadt's failure to answer truthfu11y concerning his use of a
"controlled substance" on his application for licensure does not constitute
"fraud" or "cheating" within the meaning of Minn. Stat. § 147.091, subd. 1<b)
<1986 ).
5.
Dr. Eisenstadt violated Minn. Stat. § 147.091, subd. leg) by using
cocaine on a night when he was on call.
6.
Dr. Eisenstadt violated Minn. Stat. § 147.091, subd. l(r) because of
his past addiction to cocaine.
7.
There is insufficient evidence or argument in the record to support
any other.al1eged violations of Minn. Stat. § 147.091, subd. 1 (1986),
.
~
8.
All of the documentation submitted by both parties. which includes
several letters and affidavits on Dr. Eisenstadt's behalf. constitutes the
official record in this matter.
9.
The constitut10na1 and policy issues lisfed by Respondent in his
memorandum are reserved for the Board and/or the Court of Appeals for
determi!12.t10n.
Based upo~ the fo.egoing Conclusions, the
the follcwing:
R~COMMENDA
Adminis~rative
Law Judge makes
nON
IT IS HEREBY RECOMMENDED that the Board of Medicai Examiners take
Eisenstadt after
appropr1~Le discip11ncry action against the license of Inomas
~ full consideration of the entire record in this matter.
Dated this
fb
day of June. 1987.
149
NOTICE
Pursuant to Minn. Stat. § 14.62, subd. 1, the agency is required to serve
its final decision upon each party and the Administrative Law Judge by first
c 1as s rna i 1 .
Reported:
Submitted on Stipulated Documents
MH10RANDUM
The Judge must first point out that there is no allegation. or any
evidence submitted, to suggest that Dr. Eisenstadt ever treated patients or
performed medical functions while under the influence of either alcohol or
drugs. Rather, the record shows that Dr. Eis~nstadt would not go to work
after he had been using cocaine the night before because of his concern for
patient well-being. On. .,on1y one occasion. the night that he used cocaine
while on call, is there;rny connection between using drugs and harm"to
patients. There is roc evidence, however, that Dr. Eisenstadt saw any patients
on that night. The Judge has concluded that Dr. Eisenstadt violated Minn.
Stat. § 147.091. subd. l(g) because of that incident and the potential harm to
the public. Additionally. there 's nothing in the record to suggest that Dr.
Eisenstadt's present ability to practice medicine has in any way been impaired
because of his past use of drugs.
Dr. Eisenstadt has admitted his prior addict~on to cocaine and that he is
a chemically dependent person. Consequently, the Judge has found a violation
of Minn. Stat. § 147.091 subd. l(r). However. as the record shows, Dr.
Eisenstadt's use of drugs terminated approximately one year ago.
t
The Bcard staff argues, without reservation that Dr. Eisen~tadt's
m'sstatement on his license application form constitutes fraud or cheating
\·lithin the mea.ning of Minn. Stat. § 147.091, subd. Ho). The Judge
disagrees. Under Minnesota law, the elements of fraud are: (1) a false
representatior.; (2) made with the intent to deceive; (3) action taken or not
taken by a party in reliance on the misrepresentations; (4) resulting in
damages; (5) which are proximately caused by the misstatements. Juster
Steel v. Carl5e~ CO~Danies, 366 N.H.2d 616, 619 (Minn. App. 1985).2
The record in this matter shows that Dr. Eisenstadt knowingly made a
misstatement of fa:t when he answered no to the Question posed in the license
applicatj6~ concern!ng use of controlled substances.
At the tIme this answer
'. . as giVE<', Dr. t:isenstadt was t;sir,g marijuana only or. a "recreational basis".
The Executive Dlrector of the Board submitted a sworn affidavit stating that
licensure is not denied because an applicant reports the use of a controlled
substancE in nlS applicatIon fer licensure. The affidavit states further that
depending on the severity of d drug use problem, certain types of restricted
lThe Judge equates the terms fraud and cheating for purposes of this
analyze the ~econd term.
siscusc;ion and wi 11 not separateiy_
-6-
·'
..
• licinses might be lssued. However, in this case, there is no allegation or
suggestion in the record that Or. Eisenstadt's use of marijuana amounted to
anything other than an "accepted" social use. See, In the Matter of the
Proposed Discharge of John D. Ke1vie, CITY-85-0l6-PE (issued June 3, 1986),
.
aff'd 384 N.H.2d 901 (Minn. App. 1986), Consequently, although a misstatement
or misrepresentation was made in the license application, it does not fall
within the meanin'g of "fraud" because the Board did not take any action that
it would not have taken otherwise if the question had been answered truthfully. Thus, a crucial element to establish fraud is missing. This case can
easi ly be distinguished between cases in ,which appl icants falsify degrees.
transcripts. or other documentation which would require that a license not be
granted if the Board had knowledge of· the misrepresentation.
The Judge also points out that the licensure statutes for other
occupations oftentimes list as a reason for disciplinary action the "ground
that the applicant has filed an application which contains a misstatement of
fact along with a ground of fraud. See.~, Minn. Stat. § 82.27, subd. 1
(1986). Such is not the case herein. In this matter, the misstatement. or
misrepresentation, must constitute a fraud. As set forth above, the Judge has
concluded that there was no fraud herein.
The Board staff has not argued in its supporting memorandum that
violations of M1nn. Stat. § 147,091. subds. 1(f) or (u) have been proved by
any facts contained In the record herein.
p .C. E.
-;-
.
.
, .
"
STATE OF MINNESOTA
)
COUNTY OF HENNEPIN
)
) SSe
Sue Vrooman, being first duly sworn upon oath, deposes and says:
That at the City of Minneapolis, county and state aforementioned, on
the 21st day of July, 1987, she served the attached FINDINGS OF FACT,
CONCL USIONS AND ORDER;bf depositing in the United States mail at said city, a
true and correct copy thereof, properly enveloped, with first class postage prepaid,
and addressed to:
Mr. Jack S. Nordby
Meshbesher, Singer & Spence, Ltd.
1616 Park Avenue
Minneapolis, Minnesota 55404
Subscribed and sworn to before me
this~ day
Re:
?f July, 1987.
In the Matter of the Medical License of Thomas C. Eisenstadt, MD
1S2