Disciplinary Action against
Brian D. Halevie-Goldman, M.D.
Stephen Barrett, M.D.
In 2006, the Medical Board of California has charged Brian D. Halevie-Goldman, M.D. with gross negligence, improper prescribing, inadequate record-keeping, and dishonesty. The complaint (shown below) states:
- Halevie-Goldman is a former medical director of Bay Area Laboratory Co-Operative (BALCO), whose president, Victor Conte, illegally supplied steroid drugs to athletes.
- During 2003, at Conte's request, Halevie-Goldman issued several prescriptions for a prominent track star whom he did not examine.
- The athlete, Kelli White, subsequently won gold medals in the 100- and 200-meter races at the World Championships in Paris.
- After a performance-enhancing stimulant drug was found in White's urine, Goldman concocted a medical history and diagnosis in an effort to excuse the doping offense.
- When the truth came out, White accepted a two-year suspension.
In 2007, the board suspended Halevie-Goldman's license for 90 days and placed him on probation, during which he was required to maintain records of all controlled substances he handles or prescribes, complete courses in ethics and prescribing practices, undergo psychiatric evaluation, and utilize a practice monitor who reviews the quality of his care of patients.
Attorney General of the State of California
LAWRENCE MERCER, State Bar No. 111898
Deputy Attorney General
California Department of Justice
300 So. Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-8854
Facsimile: (213) 897-9395
Attorneys for Complainant
DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA
In the Matter of the First Amended Accusation Against:
BRIAN D. HALEVIE-GOLDMAN, M.D.
Physician and Surgeon's Certificate No. A38684
Case No. 12-03-152226
Filed May 19, 2006
1. David T. Thornton (Complainant) brings this Accusation solely in his official capacity as the Executive Director of the Medical Board of California.
2. On or about July 2, 1982, the Medical Board of California issued Physician's and Surgeon's certificate Number A38684 to Brian D. Halevie-Goldman, 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 February 29, 2008, unless renewed.
3. This Accusation is brought before the Division of Medical Quality, Medical Board of California, under the authority of the following laws. All section references are to the Business and Professions Code unless otherwise indicated.
4. Section 2227 of the Code 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 of the Code states:
“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.
"(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. "
(f) Any action or conduct which would have warranted the denial of a certificate.”
6. Section 2242 of the Code states, in pertinent part:
"(a) Prescribing, dispensing or furnishing dangerous drugs as defined in Section 4022 without a good faith prior examination and medical indication therefor, constitutes unprofessional conduct."
7. Section 2261 of the Code states:
"Knowingly making or signing any certificate or other document directly or indirectly related to the practice of medicine or podiatry which falsely represents the existence or non-existence of a state of facts, constitutes unprofessional conduct.
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
9. Respondent is subject to disciplinary action under section 2234, subsection (b) and/or (c) of the Business and Professions Code in that Respondent was grossly negligent and/or committed repeated acts of negligence with regard to K.W. The circumstances are as follows:
A. At all relevant times, respondent was and now is a duly licensed physician, purporting to specialize in child and adult psychiatry. Respondent is not board-certified by any board within the ambit of the American Board of Medical Specialties.
B. In or about 1984, respondent was Medical Director for Bay Area Laboratories Cooperative (BALCO), where he became acquainted with its principal, Mr. Victor Conte ("Conte"), and assisted in research and development of trace mineral dietary supplements. Conte has never been a licensed physician. At an undetermined time, respondent ceased his formal business relationship with BALCO.
C. On or about January 17, 2003, respondent was contacted by Conte regarding two athletes: K.W. and another athlete, who is designated in respondent's records only as XXXX. According to respondent's chart, Mr. Conte provided the following information regarding K.W.: "C/o Fatigue, poor sleep, cannot keep her eyes open> muscle fatigue or tiredness. Good initiative and motivation, no clinical depression at all." Based on Mr. Conte's account, respondent recommended that K.W. would need to be evaluated with a sleep study (polysornnography). Respondent wrote: "DiffDx [differential diagnosis] to include: Narcolepsy, CFS [chronic fatigue syndrome], Post-viral (139.0)." [Footnote: Explanatory information here and elsewhere that is in brackets has been added to the original.] Respondent did not talk to or examine K.W. at that time. Based upon the information that he received from Conte and Conte's specific request for modafinil, respondent furnished or dispensed, or caused to be furnished or dispensed, samples of Provigil (hereinafter also referred to as modafinil), a prescription medication approved for use in promoting wakefulness in persons suffering from narcolepsy, obstructive sleep apnea and shift work sleep disorder. Respondent later reported to the Board's investigator that he believed that the Provigil was being dispensed to XXXX for treatment of possible narcolepsy described by Mr. Conti and not for K.W. This statement is contradicted by his correspondence on behalf of K.W.
D. Respondent's chart for June 2, 2003, indicates that K.W. or someone on her behalf communicated with the clinic where respondent was practicing, reporting complaints of a chafing rash from her bra strap. Although K. W. was not examined and had not been seen at all by respondent, prescriptions for Lotrisone and benzoyl peroxide were called into Long's Pharmacy for K.W.'s use. Respondent approved the prescription after the fact.
E. Respondent's chart for June 8, 2003, reflects a prescription for Motrin 800 mg. that was called into Walgreen's Pharmacy for K.W.'s use for "plantar fascitis." As before, K.W. was not seen or examined by respondent. Respondent approved the prescription after the fact.
F. Respondent's chart for June 12, 2003, states that K.W. was having difficulty sleeping and felt as if she could run a marathon each night. A prescription for Ambien, a Schedule IV controlled substance indicated for short term treatment of insomnia, was called in to a pharmacy. The prescription provided a month's supply and three refills of30 ten milligram tablets. Respondent advised the Board's investigator that he was contacted personally on this occasion and issued the prescription for K.W.'s sleep disorder. Although respondent later acknowledged to the Board's medical consultant that K.W.'s history of thyroid treatment and possible hyperthyroidism should have been of concern in prescribing Ambien, his chart does not reflect consideration or discussion of it.
G. K.W. was interviewed by the Board's investigator. K.W. stated that she neither met with nor spoke with respondent on any of the occasions in June when he caused prescriptions to be issued to her.
H. In August, 2003, K.W. tested positive for modafinil while competing in an international track and field event. K.W.'s agents contacted respondent and requested that respondent provide a medical excuse for K.W.'s use of modafinil. Respondent complied with the request and, in a letter dated August 30, 2003, respondent stated that K.W. had been consulting with his clinic since the beginning of 2003. He further represented that K.W. was provided with modafinil sample bottles per his instructions. Although he had never met with K.W. as a patient, respondent set forth a personal and family history of narcolepsy and stated that the modafinil provided to K.W. was for the purpose of treating narcolepsy. Respondent then wrote a second letter, dated September 2, 2003, in which he reported to the International Association of Athletics Foundations (IAAF) that modafinil was not a strong stimulant and was not an athletic performance enhancing substance. Respondent advised the Board's investigator that he was paid $5,000.00 on behalf of K.W. to provide these letters as a medico-legal service.
I. Respondent did not meet with or examine K.W. in September; nevertheless, respondent's records contain five entries for September—most of the entries relate to K.W.'s situation after testing positive for modafinil. One purports to document a consultation with K. W. ' s mother regarding family history of narcolepsy.
J. On October 1, 2003, respondent examined K.W. for the first time. Respondent's record of that examination states that the patient's prescribed medications are Ambien and Motrin 800. The patient gave a history of depression. A number of possible problems for the physician to evaluate were hypothesized using the Amen Adult General Symptom Checklist. There is no indication in the chart that respondent evaluated these symptoms or conducted any follow up of the patient's reported history of depression. A section in the report for evaluation using the Beck Depression Inventory was not completed. Respondent advised the Board's investigator that he delegates some patient histories to non-medical staff. The focus of respondent's examination was to establish a rationale for K.W.'s use of modafinil.
K. Respondent did not examine K.W. again. A note dated November 11, 2003, indicates that K.W. came to respondent's clinic and requested a copy of her records.
L. In 2004, K.W. admitted having used modafinil to enhance performance and accepted a two year suspension from the IAAF. K.W. has stated that she had never met with respondent until October 1, 2003, after he had prescribed for her. K. W. does not have a personal or family history of narcolepsy as respondent represented in his records and correspondence.
M. On June 7, 2005, respondent augmented his records for K.W. with a two-page memorandum in which he places responsibility for allegations related to modafinil dispensing on Conte, K.W. and K.W.'s mother, all of whom he contends deceived him regarding the true facts of K.W.'s condition.
N. When he was interviewed by the Board's investigator, respondent admitted that he had never spoken with K. W.' s mother. Although he at first claimed that he had numerous telephone conversations with K.W., he later admitted that he could not recall any.
10. Respondent's license is subject to discipline and respondent is guilty of unprofessional conduct in violation of Business and Professions Code §2234(b) and/or (c) in that respondent was grossly negligent and/or repeatedly negligent in his care and treatment of K.W., including but not limited to the following:
A. Respondent prescribed, furnished or dispensed dangerous drugs, including modafanil, Ambien and Motrin 800, without examining the patient and/or without establishing a medical necessity for the drugs;
B. Respondent delegated prescribing and patient history responsibilities to non-medical staff;
C. Respondent failed to appropriately evaluate the patient's condition;
D. Respondent failed to assess and/or follow up on potentially serious conditions presented by the patient;
E. Respondent prescribed a four month supply of Ambien to K.W. without assessing history of a thyroid condition or other factors that might have resulted in her insomnia;
F. Respondent created documents which represented or implied that K.W. was his patient, that respondent had ascertained that K. W. had a family history of narcolepsy, that K.W. also suffered from excessive daytime somnolence and had been taking modafinil for that condition pursuant to his instructions—which statements were untrue.
SECOND CAUSE FOR DISCIPLINE
(Prescribing Without Good Faith Examination)
11. Respondent is subject to disciplinary action under section 2242 of the Business and Professions Code in that respondent prescribed, furnished or dispensed dangerous drugs, as defined by Section 4022 of the Code, to patient K.W. without a prior good faith examination and/or medical indication therefor. Said medications included, but were not limited to, the following: Modafinil, Motrin, Ambien, Lotrisone and benzoyl peroxide
THIRD CAUSE FOR DISCIPLINE
(Failure to Keep Adequate and Accurate Records)
12. Respondent is subject to disciplinary action under Business and Professions Code section 2266 in that respondent failed to keep adequate and accurate records with regard to K.W. The circumstances are as follows:
A. Respondent failed to document a full evaluation of K.W., including history, mental status examination and assessment of depression and insomnia.
B. Respondent's records include statements which are contrary to fact and were not verified or confirmed by him.
FOURTH CAUSE FOR DISCIPLINE
(Dishonest Acts/False Representations)
13. Respondent is subject to disciplinary action under Business and Professions Code section 2261 in that respondent knowingly made or signed a document related to the practice of medicine which falsely represented the existence or non-existence of a state of facts, including but not limited to the following:
A. Respondent's records for K.W. include statements which are contrary to fact and were known by respondent to be so when he made them.
B. Respondent wrote a letter, dated August 30, 2003, in which he stated that K.W. "has been consulting with our clinic since the beginning of the year " and that respondent was authorized "to reveal aspects of her medical file." In truth, respondent had not examined K.W., she was not his patient and she did not have an actual medical file at his clinic.
C. Said letter further states that K.W. had multiple symptoms, conditions and/or diagnoses, including excessive daytime somnolence, mild depression, Attention Deficit Disorder and narcolepsy. In truth, other than depression (which respondent had not evaluated and/or had not documented an evaluation of), respondent did not have a medical basis supporting the existence of the symptoms, conditions or diagnoses and the statements falsely represented their existence.
WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Board issue a decision:
1. Revoking or suspending Physician's and Surgeon's certificate Number A38684, issued to Brian D. Halevie-Goldman, M.D.
2. Revoking, suspending or denying approval of Brian D. Halevie-Goldman, M.D.'s authority to supervise physician's assistants, pursuant to section 3527 of the Code;
3. Taking such other and further action as deemed necessary and proper.
DATED: May 19, 2006
DAVID T. THORNTON
Medical Board of California
Department of Consumer Affairs
State of California Complainant
This page was revised on November 9, 2013.