Disciplinary Actions against Richard A. Carter, D.O.

Stephen Barrett, M.D.


Richard A. Carter, D.O., who practices surgery in Arlington, Texas, has been disciplined three times by the Texas Board of Medical Examiner, twice related to surgery and once for false advertising.


LICENSE NO. G-6913

IN THE MATTER OF THE

LICENSE OF

RICHARD ALAN CARTER, D.O..

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BEFORE THE

 

TEXAS MEDICAL BOARD

AGREED ORDER

On the 6th day of February, 2009, came on to be heard before the Texas Medical Board (the "Board"), duly in session, the matter of the license of Richard Alan Carter, D.O. ("Respondent").

On October 20, 2008, Respondent appeared in person, with counsel Courtney Newton, at an Informal Show Compliance Proceeding and Settlement Conference in response to a letter of invitation from the staff of the Board. The Board's representatives were Timothy J. Turner, a member of the Board, and Richard Strax, M.D., a member of a District Review Committee. Claudia Kirk represented Board staff.

Upon the recommendation of the Board's representatives and with the consent of Respondent, the Board makes the following Findings of Fact and Conclusions of Law and enters this Agreed Order.

FINDINGS OF FACT

The Board finds that:

1. Respondent received all notice required by law. All jurisdictional requirements have been satisfied. Respondent waives any defect in notice and any further right to notice or hearing under the Medical Practice Act, Title 3, Subtitle B, Texas Occupations Code (the "Act") or the Rules of the Board.

2. Respondent currently holds Texas Medical License No. G-69 13. Respondent was originally issued this license to practice medicine in Texas on August 26, 1984. Respondent is not licensed to practice in any other state.

3. Respondent is primarily engaged in the practice of general surgery. Respondent is board certified by the American Board of Osteopathic Surgery, a member of the American Board of Osteopathic Medical Specialties.

4. Respondent is 57 years of age.

5. Respondent has had a prior disciplinary order from the Board. The Board entered into an Agreed Order on August 26, 2006, for a medical error that was inconsistent with public health and welfare. Specifically, Respondent left a laparotomy sponge inside the patient's abdomen, after performing a bowel resection surgical procedure. The Order was for a period of one year and required Respondent to: obtain 10 hours of Continuing Medical Education, and pay a $1,000 administrative penalty.

6. In 2006, Respondent appeared in an advertising infomercial and website promotion for a product named AmazeRx.

7. The AmazeRx product is a weight-loss meal replacement protein shake formula that Respondent developed and now promotes.

8. The advertisement includes testimonials and photographic depictions of weight-loss success, and Respondent's biography. The advertisement includes the following claims and statements that:

a. "weight loss up to a pound a day is possible while using the product;"

b. the product "helps combat Nutritional Cirrhosis or fatty infiltration of the liver;"

c. "patients not only lost weight on the prep drink but also reported increased energy, better sleep patterns, reduced joint pain, and a greater overall sense of well-being ... ALL PRIOR TO SURGERY;"

d. Respondent is "recognized as one of the most experienced and talented weight loss surgeons in the United States;" and

e. Respondent has "earned the title of America's Weight Loss Doctor by building one of the most successful Bariatric Surgery Practices in America."

9. The advertisement was deceptive and misleading in that it failed to clearly state that all the testimonial "personal stories" were people that had already had bariatric surgery.

10. Respondent has cooperated in the investigation of the allegations related to this Agreed Order. Respondent's cooperation, through consent to this Agreed Order, pursuant to the provisions of Section 164.002 the Act, will save money and resources for the State of Texas. To avoid further investigation, hearings, and the expense and inconvenience of litigation, Respondent agrees to the entry of this Agreed Order and to comply with its terms and conditions.

CONCLUSIONS OF LAW

Based on the above Findings of Fact, the Board concludes that:

I. The Board has jurisdiction over the subject matter and Respondent pursuant to the Act.

2. Section 164.051 (a)(3) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent's violation of a rule adopted under this Act, specifically Board Rule 164.3, dissemination of any advertisement that is in any way false, deceptive, or misleading.

3. Section 164.052(a)(5) of the Act authorizes the Board to take disciplinary action against Respondent based upon Respondent's unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public, and as further defined by Board Rule 190.8(2)(1), using false, misleading, or deceptive advertising.

4. Section 164.052(a)(6) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent using an advertising statement that is false, misleading, or deceptive.

5. Section 164.001 of the Act authorizes the Board to impose a range of disciplinary actions against a person for violation of the Act or a Board rule. Such sanctions include: revocation, suspension, probation, public reprimand, limitation or restriction on practice, counseling or treatment, required educational or counseling programs, monitored practice, public service, and an administrative penalty.

6. Section 164.002(a) of the Act authorizes the Board to resolve and make a disposition of this matter through an Agreed Order.

ORDER

Based on the above Findings of Fact and Conclusions of Law, the Board ORDERS that Respondent shall be subject to the following terms and conditions:

1. Respondent must revise the advertising on both the AmazeRx advertisement website and the infomercial to delete or clarify any unsubstantiated or exaggerated claims.

a. Specifically, Respondent must remove any mention, either written or spoken, of:

(1) any statements or claims that Respondent is, "America's weight loss doctor;"

(2) any statements or claims regarding Respondent being one of the, "most successful bariatric surgeons in the nation;"

(3) and any statements or claims that use of the product will cure "fatty liver(s) and/or Nutritional Cirrhosis."

b. Additionally, the Respondent shall clarify any misleading and/or deceptive claims that include, but are not necessarily limited to, immediate results and long-term sustainability weight-loss claims, and testimonials of post-bariatric surgical patients versus the general population.

c. All these requirements must be included in any and all new advertising, website(s) and/or infomercials before their releasing or airing, and on any currently existing websites or infomercials, within 45 days following the date of the entry of this Order.

2. Respondent shall pay an administrative penalty in the amount of $5,000 within 180 days following the date of the entry of this Order. The administrative penalty shall be paid in a single payment by cashier's check or money order payable to the Texas Medical Board and shall be submitted to the Board for routing so as to be remitted to the Comptroller of Texas for deposit in the general revenue fund. Respondent's failure to pay the administrative penalty as ordered shall constitute grounds for further disciplinary action by the Board, and may result in a referral by the Executive Director of the Board for collection by the Office of the Attorney General.

3. Respondent shall comply with all the provisions of the Act and other statutes regulating the Respondent's practice.

4. Respondent shall fully cooperate with the Board and the Board staff, including Board attorneys, investigators, compliance officers, consultants, and other employees or agents of the Board in any way involved in investigation, review, or monitoring associated with Respondent's compliance with this Order. Failure to fully cooperate shall constitute a violation of this order and a basis for disciplinary action against Respondent pursuant to the Act.

5. Respondent shall inform the Board in writing of any change of Respondent's mailing or practice address within 10 days of the address change. This information shall be submitted to the Permits Department and the Director of Enforcement for the Board. Failure to provide such information in a timely manner shall constitute a basis for disciplinary action by the Board against Respondent pursuant to the Act.

6. Any violation of the terms, conditions, or requirements of this Order by Respondent shall constitute unprofessional conduct likely to deceive or defraud the public, or to injure the public, and shall constitute a basis for disciplinary action by the Board against Respondent pursuant to the Act. Respondent agrees that 10 days notice of a Probationer Show Compliance Proceeding to address any allegation of non-compliance of this Agreed Order is adequate and reasonable notice prior to the initiation of formal disciplinary action. Respondent waives the 30-day notice requirement provided by §164.003(b )(2) of the Medical Practice Act and agrees to 10 days notice, as provided in 22 Texas Administrative Code §187.44(4).

7. Respondent shall be permitted to supervise and delegate prescriptive authority to physician assistants and advanced practice nurses and to supervise surgical assistants.

8. This Order shall automatically terminate upon the provision of evidence to the Board demonstrating that Respondent has successfully completed the requirements in Ordering Paragraph Nos. 1 and 2.

RESPONDENT WAIVES ANY FURTHER HEARINGS OR APPEALS TO THE BOARD OR TO ANY COURT IN REGARD TO ALL TERMS AND CONDITIONS OF THIS AGREED ORDER. RESPONDENT AGREES THAT THIS IS A FINAL ORDER.

THIS ORDER IS A PUBLIC RECORD.

I, RICHARD ALAN CARTER, D.O., HAVE READ AND UNDERSTAND THE FOREGOING AGREED ORDER. I UNDERSTAND THAT BY SIGNING, I WAIVE CERTAIN RIGHTS. I SIGN IT VOLUNTARILY. I UNDERSTAND THIS AGREED ORDER CONTAINS THE ENTIRE AGREEMENT AND THERE IS NO OTHER AGREEMENT OF ANY KIND, VERBAL. WRITTEN OR OTHERWISE.

DATED: July 19, 2009

______________________________
RICHARD ALAN CARTER
Respondent

SIGNED AND ENTERED by the presiding officer of the Texas Medical Board on this 6th day of February, 2009.

_______________________________
Irvin E. Zeitler, Jr., D.O., President
Texas Medical Board

This page was revised on October 21, 2011.

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