Daryl See, M.D. Surrenders Medical License

Stephen Barrett, M.D.


In November 2006, the Medical Board of California accused Darryl M. See, M.D. of gross and repeated negligence; incompetence; false representations; and failure to maintain adequate records in connection with his management of five patients. As noted below, the circumstances included (a) improper diagnoses, (b) use of unlabeled and unapproved drugs, including a stem cell product, (c) patient abandonment, and (d) failure to obtain proper informed consent for what See maintained was research. He was also charged with excessive use of a barbiturate drug, which led to a criminal conviction for driving under the influence. In October 2007, See signed a stipulated agreement under which he admitted that the allegations were true and surrendered his medical license. The agreement says he can apply for reinstatement in two years.


BILL LOCKYER,
Attorney General of the State of California
THOMAS LAZAR
Supervising Deputy Attorney General
RICHARD D. HENDLIN, State Bar No. 76742
Deputy Attorney General
California Department of Justice
110 West "A" Street, Suite 1100
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2071
Facsimile: (619) 645-2061

Attorneys for Complainant

BEFORE THE
DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA

In the Matter of the Accusation Against

DARRYL MATTHEW SEE, M.D.
2701 Snapdragon
Bozeman, MT 59718

Physician's and Surgeon's Certificate No. G 61569

Respondent


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Case No. 04-2004-161179

OAH No.

ACCUSATION

 

Complainant alleges:

PARTIES

1. David T. Thornton (Complainant) brings this Accusation solely in his official capacity as the Executive Director of the Medical Board of California, Department of Consumer Affairs.

2. On or about October 13,1987, the Medical Board of California issued Physician's and Surgeon's Certificate No. G 61569 to DARRYL MATIHEW SEE, M.D. (Respondent). The Physician's and Surgeon's Certificate was in full force and effect at all times relevant to the charges brought herein and will expire on May 31, 2007, unless renewed.

JURISDICTION

3. This Accusation is brought before the Division of Medical Quality (Division) for the Medical Board of California, Department of Consumer Affairs, under the authority of the following laws. All section references are to the Business and Professions Code unless otherwise indicated.

4. Section 2227 provides that a licensee who is found guilty under the Medical Practice Act may have his or her license revoked, suspended for a period not to exceed one year, placed on probation and required to pay the costs of probation monitoring, or such other action taken in relation to discipline as the Division deems proper.

5. Section 2234 provides:

"The Division of Medical Quality shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following:

"(a) Violating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision of this chapter [Chapter 5, the Medical Practice Act].

"(b) Gross negligence.

"(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts.

"(1) An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act.

(2) When the standard of care requires a change in the diagnosis, act, or omission that constitutes the negligent act described in paragraph (1), including, but not limited to, a reevaluation of the diagnosis or a change in treatment, and the licensee's conduct departs from the applicable standard of care, each departure constitutes a separate and distinct breach of the standard of care.

"(d) Incompetence.

"(e) The commission of any act involving dishonesty or corruption which is substantially related to the qualifications, functions, or duties of a physician and surgeon.

(t) Any action or conduct which would have warranted the denial of a certificate.

". . . "

6. Section 2236 of the Code states:

"(a) The conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon constitutes unprofessional conduct within the meaning of this chapter [Chapter 5, the Medical Practice Act]. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred.

"(b) The district attorney, city attorney, or other prosecuting agency shall notify the Division of Medical Quality of the pendency of an action against a licensee charging a felony or misdemeanor immediately upon obtaining information that the defendant is a licensee. The notice shall identify the licensee and describe the crimes charged and the facts alleged. The prosecuting agency shall also notify the clerk of the court in which the action is pending that the defendant is a licensee, and the clerk shall record prominently in the file that the defendant holds a license as a physician and surgeon.

"(c) The clerk of the court in which a licensee is convicted of a crime shall, within 48 hours after the conviction, transmit a certified copy of the record of conviction to the board. The division may inquire into the circumstances surrounding the commission of a crime in order to fix the degree of discipline or to determine if the conviction is of an offense substantially related to the qualifications, functions, or duties of a physician and surgeon.

(d) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section and Section 2236.1. The record of conviction shall be conclusive evidence of the fact that the conviction occurred."

7. Section 2239 of the Code states:

"(a) The use or prescribing for or administering to himself or herself, of any controlled substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct.

"(b) A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of this section. The Division of Medical Quality may order discipline of the licensee in accordance with Section 2227 or the Division of Licensing may order the denial of the license when the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing such person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, complaint, information, or indictment. "

8. Section 2266 of the Code states: "The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct."

FIRST CAUSE FOR DISCIPLINE
(Gross Negligence)

9. Respondent is subject to disciplinary action under sections 2227 and 2234, as defined by section 2234, subdivision (b), of the Code, in that he was grossly negligent in his care and treatment of patients V.D., R.S., L.G., A.E. and D.F. The circumstances are as follows:

10. Respondent's practice included substantial research. Respondent claimed he had developed an artificial intelligence system for the management of AIDS. He also claimed to have other accomplishments, including helping to develop the concept of immune system reconstitution in many diseases, establish models of viral-induced diabetes and heart disease, developing an oral system for vaccine delivery, validating the use of bioassays in the study of natural products and determined conditions under which neuronal regeneration is possible. He was in private practice. At the times in question, respondent claimed to be the co-chair of the Research Division, American Neutraceutical Association and the Director of the Orange County Institute of Longevity Medicine.

Patient V.D.

11. On or about September 12, 2003, patient V.D. went to respondent's office. V.D., then a 38-year old man, related his complaints to respondent. Respondent failed to obtain a complete history and perform and/or chart a physical examination. Respondent prescribed Xanax and another drug, the name of which is illegible.

12. On or about September 19, 2003, V.D. returned to respondent's office. V.D. requested an AIDS blood test. V.D. complained of chronic fatigue syndrome. Respondent ordered the blood test V.D. requested .

13. V.D. returned on or about October 3, 2003, complaining of fatigue, headache and low grade fevers. Respondent diagnosed a chronic viral infection. Respondent neither ordered nor reviewed lab tests when making this diagnosis and/or failed to record such order and/or review in the chart. There is no consent from V.D. for release of medical records, including records relating to his prior medical treatment, in respondent's chart for V.D. Respondent failed to review patient V.D.'s medical records at any time during respondent's care and treatment of V.D.

14. V.D. returned to see respondent on or about October 17, 2003. Respondent related that the HIV test was negative. Although respondent charted an order for antivirals, there are no prescription forms in the record and none were specified in the medical record. V.D. returned on or about October 22, 2003, complaining of abdominal pain and fatigue. Respondent again charted his impression of chronic fatigue syndrome and viral infection. Respondent ordered "IV Mg", "GF" and supplements.

15. V.D. returned to see respondent on or about October 29, 2003. Respondent noted that the visit was to follow up chronic viral and mycoplasma infection. Respondent ordered indium, "IV cocktail" and supplements. V.D. visited respondent's office again on or about October 31, 2003, for follow-up. Respondent repeated the order for iridium, "IV cocktail" and "D supplements." V.D.'s last recorded visit to respondent was on or about November 5, 2003. Respondent charted his impressions: chronic viral infections - mycoplasma and parvo.

16. V.D. paid respondent a $2,500.00 advance for tests for other viruses or pathogenic bacteria to establish a cause for V.D.'s fatigue.

17. V.D. did not agree to participate in a research study or program. V.D. did not sign a consent for such participation, and none appears in the medical records for V.D. maintained by respondent.

18. On an unspecified date, respondent gave V.D. 22 unlabeled vials and instructed V.D. to take the contents of each vial on an empty stomach. Respondent told V.D. that the vials contained indium. V.D. had the contents of one or more vials tested and learned that the vials tested contained indium.

19. V.D. decided to have independent lab tests to learn whether he had parvo virus and/or mycoplasma fermentans. A lab report on blood drawn on November 4 and printed on November 7, 2003, showed that V.D. had high levels of toxoplasma gondii, negligible levels of parvovirus IgG and IgM and was negative for mycoplasma penetrans, mycoplasma pneumoniae, mycoplasma fermentans and mycoplasma hominis.

Respondent committed gross negligence in his care and treatment of patient V.D. which included, but was not limited to, the following:

20. Respondent supplied unlabeled medication vials to V.D.

21. Respondent provided unlabeled vials containing indium, lead, copper, zinc which were also highly acidic, to V.D. and instructed V.D. to take the vials. Respondent did not provide any information to V.D. concerning potential ill effects of the vials.

22. Respondent failed to take and/or chart a complete and detailed history.

23. Respondent failed to order and/or perform and/or chart orders and/or results for blood tests to rule out common causes of fatigue. Respondent failed to order and/or chart orders for tests including but not limited to a complete blood count, a thyroid test, a liver function test and a kidney function test.

24. In the event that V.D. was participating in a research study, respondent failed to obtain and/or chart an informed consent from V.D.

25. Respondent's medical records for V.D. were incomplete to the extent that they constitute an extreme departure from the standard of care.

Patient R.S.

26. In or about April 2004 patient R.S. learned of respondent via respondent's website. R.S. went to see respondent for treatment of diabetes and fluid in the stomach. When R.S. met respondent, R.S. recounted that he had been diagnosed by Kaiser with hepatitis and pulmonary hypertension. Respondent stated that R.S. was suffering from a clogged liver and that respondent could help R.S. Respondent provided R.S. with "growth factor." On or about May 5, 2004, R.S. gave respondent a check for $4,500.00 to cover the cost of the substances respondent would provide to R.S.

27. Respondent did not make and/or maintain and/or retain any medical records for R.S.

28. RS. paid $478.00 to Atrium Biotech for "Natcell - pancreas porcine" and "Natcell - Liver (8) porcine."

29. RS. received an undated letter from respondent in which respondent claimed to be in Europe and stated that he would no longer be able to treat his patients. Respondent recommended other physicians. The note from respondent was enclosed with a "Dear Patient" letter from a representative of the supplier for the "growth factors" respondent had been ordering for patients.

30. In a written explanation respondent provided to a Board investigator, respondent noted that RS. suffered from severe arthritis of the knees and was seeking treatment for that ailment. Respondent also recommended that his patients could be followed by respondent's mentor, one Arnold Takemoto, who is not a licensed physician.

Respondent committed gross negligence in his care and treatment of patient R.S. which included, but was not limited to, the following:

31. Respondent injected porcine pancreas and porcine liver extracts into R.S.

32. Porcine pancreas and porcine liver extract treatment lack FDA approval.

33. Respondent abandoned patient RS.

Patients R.G. and L.G.

34. Patient R.G. is a quadriplegic who was being treated by respondent with stem cells apparently as part of a research project being conducted by respondent. Respondent represented that after one year of treatment, R.G. would be "normal" from the waist up and that it would take longer to restore full bowel, bladder and other functions below the waist. R.G. 's parents paid respondent $12,000.00 for the treatments.

35. Respondent also treated R.G.'s mother, L.G., who was suffering from rheumatoid arthritis of the knees. Respondent was paid $3,500.00 for these treatments. The treatment appeared to work at first, but then L.G.'s condition worsened.

36. In June, 2004, respondent left his patients and went to Europe and never returned. Respondent failed to respond to phone messages and e-mails.

37. Respondent claimed to have maintained medical records for R.G. and L.G., including complete and executed research consents and protocols. However, respondent claimed that the records were lost when his family cleaned out his apartment while respondent was in Europe.

38. In a letter to a Medical Board investigator from respondent dated February 23, 2005, respondent recommended that care and treatment of his patients could be provided by one Arnold Takemoto who is not a licensed physician and resides in Arizona.

39. During respondent's care and treatment of R.G., respondent did not order and/or chart an order for x-rays and/or lab tests. Respondent failed to perform a complete physical examination and to take a detailed history on either R.G. or L.G.

40. Respondent failed to provide adequate follow-up care for either R.G. or L.G. Respondent committed gross negligence in his care and treatment of patients R.O. and L.G. which included, but was not limited to, the following:

41. Respondent failed to create and/or maintain medical records relating to his care and treatment of the patients R.O. and L.G.

42. Respondent failed to obtain and retain an adequate informed consent for the experimental drug research he conducted on patients R.O. and L.G.

43. Respondent conducted a study of an investigational drug or substance without obtaining appropriate and required approvals and reviews.

44. Respondent falsely and without medical basis represented that patient R.G. would experience an 80% return in function above the knees within eight months.

45. Respondent abandoned patients R.G. and L.G.

46. In response to a query from a Medical Board investigator, respondent suggested that Arnold Takemoto, who is not a licensed physician and who resides in Arizona, could provide excellent care for respondent's patients in place of respondent.

Patient A.E.

47. On or about May 12, .2004, patient A.E. went to respondent's office on a friend's recommendation. A.E. was apparently suffering from pain in his neck and back. Respondent performed a brief physical examination and got some information about A.E.'s history. Respondent failed to create and/or maintain any medical record for this and all respondent's care of patient A.E. Respondent told patient A.E. that respondent could rejuvenate the ligaments in patient A.E.'s back and neck by injecting a stem cell product. Respondent requested payment for the stem cell product in advance, and patient A.E. gave respondent a check for $2,500.00. A.E.'s visits to respondent were billed to Medicare, but Medicare did not cover the cost of the stem cell substance respondent wished to inject into patient A.E.

48. Patient A.E. visited respondent's office on several occasions from May 2004 to July 2004. On some or all of these occasions, respondent injected a clear substance into patient A.E.'s neck and/or buttocks. Respondent came to patient A.E.'s home on one occasion to give an injection.

49. In July 2004, patient A.E. received an undated letter from respondent. Respondent stated that his practice was moving and provided a new address. It also represented that respondent would be in Europe between June 25, 2004, and July 19, 2004, getting re¬certified in regenerative medicine. Respondent stated that he would resume seeing patients after July 20, 2004. When patient A.E. went to respondent's new office location for an appointment on July 26, 2004, patient A.E. found that the office was vacant and had not had a tenant for about two years. Patient A.E. did not hear from respondent again.

50. Respondent failed to create and/or maintain medical records regarding his care and treatment of his patient, A.E.

51. In response to a query from a Medical Board investigator, respondent suggested that Arnold Takemoto, who is not a licensed physician and who resides in Arizona, could provide excellent care for respondent's patients in place of respondent.

Respondent committed gross negligence in his care and treatment of patient A.E. which included, but was not limited to, the following:

52. Respondent abandoned patient A.E.

53. Respondent falsely and without medical basis represented to patient A.E. that stem cell injections would help alleviate neck pain.

54. In the event that patient A.E. was a research subject, respondent failed to obtain and/or maintain an appropriate informed consent. In addition, the study, if there was one, was conducted without approvals and oversight required by law and/or proper research practices.

Patient D.F.

55. Patient D.F. went to see respondent based on the recommendation of a friend. Patient D.F. lost the use of his legs after he suffered a ruptured aorta in July, 1998.

56. Respondent told patient D.F. that respondent could help patient D.F. by injecting him with a stem cell derivative for a period of time. Respondent said that the treatments would regenerate spinal nerves so the patient D.F. could walk again .. Respondent asked patient D.F. for $9,000.00 to commence the treatment, to cover the cost of the substance respondent would administer. Patient D.F. paid $9,000.00 to respondent by check dated October 1, 2003.

57. Patient D.F. saw respondent on about eleven occasions according to bills submitted to Medicare by respondent.

58. Respondent gave patient D.F. a document entitled, "A 12 Month Study of the Effects of Stem Cell Regeneration Factor on Spinal Cord Injury Patients." The cover of the document identified it as an "IRB Study Proposal." The study was to be conducted by . "Dreamtech Research." Respondent was listed as the Principal Investigator. The document lacked signatures and approvals. It recited that no serious side effects have been reported "for any of the components." The drug to be studied was stem cell growth factor (SCGF), and the objective was to determine if there is clinical response to SCGF and if it can cause nerve regeneration. Patient D.F. signed a form entitled "Informed Consent" and dated it October 1, 2003, the same date as the check for $9,000.00.

59. In e-mail communications from respondent to patient D.F., respondent claimed that stem cells may help prevent seizures because some cells may stray to the brain and heal damage there. As to side effects, respondent stated there would be "absolutely none." Respondent also recommended reflexology, telling patient D.F. that it was optional but "evidence shows it may work well."

60. Sometime in June, 2004, patient D.F. received an undated letter from respondent which stated that respondent was going to be in Europe "getting recertified in regenerative medicine." Respondent would be able to see patients after July 20, 2004, at a new office location. D.F. had an appointment to see respondent in late July, 2004; the appointment was canceled by respondent's office because respondent did not return.

61. Patient D.F. received an undated letter from a representative of "Herbal Solutions" offering to order "growth factors" and enclosing a letter from respondent. In respondent's undated letter, respondent stated that he had been in Europe for some time trying to ensure that products will continue to come to the U.S. from France. Respondent states that he. was hospitalized and was ordered by a doctor to go on disability "for an extended period of time." Respondent recommended three other providers.

Respondent committed gross negligence in his care and treatment of patient D.F. which included, but was not limited to, the following:

62. Respondent used stem cells from a bovine source for an experimental therapy without filing required paperwork regarding this investigational drug.

63. Respondent failed to obtain and/or record any approval from an Independent Review Board (IRB) for his research protocol.

64. Respondent made misleading statements in the "Informed Consent."

65. Respondent abandoned patient D.F.

66. Respondent failed to make and/or retain medical records of his care and treatment of patient D.F.

67. Respondent failed to take and/or chart an adequate history from patient D.F.

68. Respondent failed to perform and/or chart a physical examination of patient D.F.

69. Respondent made statements to patient D.F. that would tend to mislead patient D.F. about the benefits of respondent's treatment.

SECOND CAUSE FOR DISCIPLINE
(Repeated Negligent Acts)

70. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by section 2234, subdivision (c), of the Code, in that he committed repeated negligent acts in his care and treatment of patients V.D., R.S., L.G., A.E. and D.F. Paragraphs 10 through 69, inclusive, are incorporated by reference and are realleged as if fully set forth here.

THIRD CAUSE FOR DISCIPLINE
(Incompetence)

71. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by 2234, subdivision (d), of the Code, in that he demonstrated incompetence in his care and treatment of patient V.D. Paragraphs 10 through. is inclusive, are incorporated by reference and are realleged as if fully set forth here.

72. Respondent was incompetent in his care of patient V.D. in that respondent failed to conduct a proper work-up of chronic fatigue syndrome so as to rule out other possible causes of the symptoms reported by patient V.D.

FOURTH CAUSE FOR DISCIPLINE
(Conviction of Crime)

73. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by section 2236, subdivision (a), of the Code, in that he was convicted of a crime substantially related to the qualifications, functions or duties of a physician and surgeon. The circumstances are as follows.

74. On or about September 5, 2003, respondent was involved in a traffic accident at or near the intersection of Alicia and Pacific Island in Laguna Niguel. Respondent rear-ended another car, and told sheriffs officers that he was very fatigued and was nodding off. Before the collision, respondent's car was followed by an off-duty Deputy, who had been watching respondent drive erratically for several miles before the accident.

75. Respondent had no measurable alcohol in his blood at or near the time of the accident. However, respondent did have a measurable amount of barbiturates/phenobarbitol in his bloodstream.

76. On March 15, 2004, respondent pled guilty to a violation of Vehicle Code section 23152, subdivision (a), driving a motor vehicle under the influence of drugs or alcohol in the case of People of the State of California v. Darryl Matthew See, Orange County Superior Court Case Number 04SM00572. Imposition of sentence was suspended and respondent was placed on informal probation for three years on various terms and conditions, including a requirement that he not take Ativan or have Ativan in his system while driving.

FIFTH CAUSE FOR DISCIPLINE
(Excessive Use of Drugs or Alcohol)

77. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by section 2239, of the Code, in that he administered and/or used drugs to the extent or in such a manner as to be dangerous or injurious to himself or others in that he was involved in an accident while driving under the influence of drugs. Paragraphs 73 through 76, inclusive are incorporated by reference and realleged as if set forth here in full.

SIXTH CAUSE FOR DISCIPLINE
(False Representations)

77. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by section 2261, of the Code, in that he knowingly made or signed a certificate or other document directly or indirectly related to the practice of medicine which falsely represented the existence or nonexistence of a state of facts. Paragraphs 10 through 69, inclusive, are incorporated by reference and realleged as if fully set forth here.

SEVENTH CAUSE FOR DISCIPLINE
(Failure to Maintain Accurate and Adequate Medical Records)

78. Respondent is further subject to disciplinary action under sections 2227 and 2234, as defined by section 2266, of the Code, in that he failed to maintain adequate and accurate medical records of his care and treatment of patients V.D., R.S., L.G., A.E. and D.F. Paragraphs 10 through 69, inclusive, are incorporated by reference and are realleged as if fully set forth here.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Division of Medical Quality issue a decision:

1. Revoking or suspending Physician's and Surgeon's Certificate Number G61569, issued to DARRYL MATTHEW SEE, M.D;

2. Revoking, suspending or denying approval of respondent's authority to supervise physician's assistants, pursuant to section 3527 of the Code;

3. If respondent is placed on probation, ordering Darryl Matthew See, M.D. to pay the Division of Medical Quality the costs of probation monitoring;

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

DATED: November 20, 2006

__________________________
DAVID T. THORNTON
Executive Director
Medical Board of California
Department of Consumer Affairs
State of California
Complainant

This page was posted on March 24, 2009.

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