Report and Recommendation In the Matter of Richard Luboga Byakika, M.D.

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II.

Appearances at the Hearing On behalf of the State of Ohio: Marc Dann, Attorney General, by Kyle C. Wilcox, Assistant Attorney General. On behalf of Dr. Byakika: Kevin P. Byers, Esq.

EVIDENCE EXAMINED I. Testimony Heard Richard Luboga Byakika, M.D. II. Exhibits Examined A. Presented by the State States Exhibits 1A through 1I: Procedural exhibits. [1A was redacted in part to obscure criminal charges of which Respondent was not convicted.] States Exhibit 2: Docket sheet in People of the State of Colorado v. Richard Luoga [sic] Byakika, Case No. 2001 T 005259, in the Boulder County Court, Colorado. [Redacted in part to obscure criminal charges of which Respondent was not convicted.] States Exhibit 3: Summons, Complaint, March 14 and December 19, 2002, Motions, and Sentence in People of the State of Colorado v. Richard Luboga Byakika, Case No. 02M200191, in the Loveland Division of the Larimer County Court, Colorado. [Redacted in part to obscure criminal charges of which Respondent was not convicted.] States Exhibit 4: Dr. Byakikas training certificate application documents. [Redacted in part to obscure a social security number.] States Exhibit 5: April 23, 2007, letter from Kathleen A. Senger, M.D., along with: (a) the docket sheet, a June 12, 2002, motion, and an August 23, 2002, summons in Colorado v. Byakika, Case No. 2001 T 005259, supra; and (b) the database information in Colorado v. Byakika, Case No. 02M200191, supra. [Redacted in part to obscure criminal charges of which Respondent was not convicted.] B. Presented by the Respondent Respondents Exhibit A: March 28, 2008, letter from Dr. Senger. Respondents Exhibit B: October 1, 2007, letter from Joseph P. Jordan, Ph.D.

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III.

Proffered Exhibits A. B. C. D. E. Proffered Exhibit 1: Unredacted copy of States Exhibit 1A. Proffered Exhibit 2: Unredacted copy of States Exhibit 2. Proffered Exhibit 3: Unredacted copy of States Exhibit 3. Proffered Exhibit 4: Unredacted copy of States Exhibit 5. Proffered Exhibit 5: Unredacted copies of pages 9, 24, 26, 27, and 30-33 of the transcript.

PROCEDURAL MATTERS While preparing the report and recommendation, the Hearing Examiner noticed that several admitted exhibits and the transcript referred to criminal charges of which Dr. Byakika was not convicted. The Hearing Examiner contacted counsel for both parties to discuss redaction of that information from the record because she had mistakenly admitted the exhibits and allowed questioning that referenced the other charges. 2 Counsel for the State objected to the suggested redactions and counsel for Respondent agreed to the suggested redactions. Over the States objection, the Hearing Examiner reopened the record in this matter, redacted States Exhibits 1A, 2, 3, and 5, and redacted pages 9, 24, 26, 27, and 30-33 of the transcript. Unredacted copies of those States Exhibits and unredacted copies of the referenced pages of the transcript were marked as proffered exhibits. The hearing record closed on April 24, 2008.

SUMMARY OF THE EVIDENCE All exhibits and the transcript, even if not specifically mentioned, were thoroughly reviewed and considered by the Hearing Examiner prior to preparing this Report and Recommendation.

Background Information 1. Richard Luboga Byakika, M.D., earned his medical degree in 1999 from Makerere University Medical School in Kampala, Uganda. Afterward, Dr. Byakika came to the United States to further his medical education. From 1999 to 2003, Dr. Byakika lived in Colorado and worked as a camp counselor, a certified nurses aide, and an endoscopy technician. Additionally, he studied and took the first two steps of the United States Medical Licensing Examination. Then, in the summer of 2003, Dr. Byakika entered a residency program at Frankford Hospital

In Perchan, M.D., v. State Med. Bd. of Ohio, Case No. 91AP-270 (Jun. 17, 1991), unreported, the Court of Appeals ruled that it was error to have admitted into evidence a multi-count indictment when the appellant was convicted of only one count of the indictment.

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in Philadelphia, Pennsylvania. He described that program as a transitional year program, which lasted only one year. Dr. Byakika explained that, because he had graduated from a foreign medical school, he had thought transitional training for one year would benefit him, making him a better physician. (Hearing Transcript [Tr.] at 13-15, 22, 56-57; States Exhibit [St. Ex.] 4 at 4, 7) 2. In July 2004, Dr. Byakika entered the internal medicine residency program of the Canton Medical Education Foundation [CMEF] in Canton, Ohio. That residency program is affiliated with Aultman Hospital and Mercy Medical Center. He completed that three-year residency in 2007. 3 (Tr. at 15; St. Ex. 4 at 3, 14, 15) After completing the CMEF residency, Dr. Byakika moved to North Carolina, where he works at the Cape Fear Valley Hospital. He is a hospitalist physician, providing inpatient care and treatment for those 18 years and older. He handles a wide variety of ailments, but does not address gynecological and surgical issues. (Tr. at 16, 17) The Board issued a training certificate to Dr. Byakika to practice medicine and surgery in Ohio in 2004. In addition, he had a training certificate in Pennsylvania, which has expired. He currently holds a medical license in North Carolina. Moreover, Dr. Byakika became board-certified in internal medicine in 2007. (Tr. at 13, 16; St. Ex. 4 at 17; Ohio ELicense Center, 14 Apr. 2008, <https://license.ohio.gov/ Lookup>)

3.

4.

Ohio Training Certificate Application, 2004 5. Because Dr. Byakika would be entering the CMEF residency program, he applied for an Ohio training certificate. The application was filed with the Board in May 2004. (Tr. at 16, 18; St. Ex. 4) The application included the following two questions, to which Dr. Byakika answered No: 15. Have you ever been convicted or found guilty of a violation of any law, regardless of the legal jurisdiction in which the act was committed, other than a minor traffic violation? Please be advised that you are required to submit copies of all relevant documentation, such as police reports, certified court records and any institutional correspondence and orders. Have you ever forfeited collateral, bail, or bond for breach or violation of any law, police regulation, or ordinance other than for a minor traffic violation; been summoned into court as a defendant or had any lawsuit filed against you (other than a malpractice suit)? Please be advised that you are required to submit copies of all relevant

6.

16.

Dr. Byakika also completed the United States Medical Licensing Examination sequence in 2007, during his third year of residency. (Tr. at 22)

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documentation, such as police reports, certified court records and any institutional correspondence and orders. (St. Ex. 4 at 9, emphasis in original) Additionally, Dr. Byakika signed and understood the affidavit contained within the application, in which he attested to the truth of the statements he made in the application. (St. Ex. 4 at 12; Tr. at 19-20) Dr. Byakikas Prior Criminal Charges and Convictions, 2001 and 2002 7. On August 15, 2001, Dr. Byakika was arrested and later charged in Boulder County Court, Colorado, with three criminal counts, including reckless driving. The case was designated People of the State of Colorado v. Richard Luoga [sic] Byakika, Case No. 2001 T 005259. A trial was held. However, ultimately, the matter was settled. Two of the criminal counts were dismissed at the request of the prosecutor, and Dr. Byakika pleaded guilty to reckless driving. On February 22, 2002, he was sentenced to provide 24 hours of community service. Additionally, Dr. Byakika was required to pay a traffic fine of $100, pay court costs of $18, contribute $35 to the victim assistance fund, and contribute $35 to the victim compensation fund. (St. Exs. 2 and 5 at 6-8) On February 7, 2002, Dr. Byakika was arrested and later charged in the Loveland Division of the Larimer County Court, Colorado, with two criminal counts, including harassment. The case was designated People of the State of Colorado v. Richard Luboga Byakika, Case No. 02M200191. A trial was held. Dr. Byakika was found guilty of both charges. However, the second charge was later dismissed and Dr. Byakika was convicted of only harassment, a misdemeanor. On December 19, 2002, he was sentenced to one year of unsupervised probation. He was required to pay court costs of $18, contribute $60 to the victim assistance fund, and contribute $60 to the victim compensation fund. (St. Exs. 3 and 5 at 2-5; Tr. at 21, 25-28)

8.

Dr. Byakikas Explanation 9. Dr. Byakika explained that the 2001 incident occurred when he was driving one evening and was pulled over by a police officer. He provided a bodily fluid sample, which was tested by a state laboratory. He further stated that he had had the same sample tested by another laboratory, which reached a significantly different conclusion. Dr. Byakika further explained that, during the bench trial, he made the argument that the test results were contradictory, but he eventually pleaded guilty to reckless driving. (Tr. at 30-31) With regard to the 2002 incident, Dr. Byakika explained that it had occurred when he and a former girlfriend were arguing at her home. He stated that she had begun to hit him and he held her arm at arms length in order to stop her from hitting him. Then, he stated: Because it got heated, I left. And a few minutes after I had left, she called me on the phone and said, "Just to let you know, I have called the police on you because you put your hand on me and there's a mark to prove it."

10.

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So what I did when I got that call, I said, "Which police station?" I called the police station and I turned myself in. (Tr. at 23-24) He further explained that he was found guilty of both charges, but the judge questioned whether Dr. Byakika is a violent person. Dr. Byakika stated that, because of that concern, the judge had requested that Dr. Byakika see a psychologist, whose recommendations the judge would take into consideration for sentencing. Dr. Byakika saw the psychologist. After that, the judge convicted him of harassment only and the second charge was dismissed. (Tr. at 26, 27) 11. With regard to his answers to questions 15 and 16 on the training certificate application, Dr. Byakika acknowledged that he should have answered Yes to questions 15 and 16. Dr. Byakika testified that he had inadvertently answered those questions incorrectly because he was ticking off the boxes under No. He stated that he does not believe that he had carefully read the questions at the time. He further stated that it was not his intention to answer No because he had known of his convictions. Moreover, Dr. Byakika testified that, around the same time in early 2004, he had participated in the Residency Match program and had been filling out various applications. Specifically, he explained that he had completed applications for the electronic residency matching program service, four different residency programs, and the Ohio training certificate application. Because it was a hectic time for him, he had not been careful in filling out the Ohio training certificate application. He further testified that he does understand that he has a responsibility to answer the questions accurately, but this was an honest mistake. (Tr. at 21, 28-30, 33, 34, 41-42, 47, 48, 53-54) Dr. Byakika further testified that he was aware that the CMEF internal medicine residency program director, Kathleen A. Senger, M.D., sent information about his criminal convictions to the Board in April 2007. 4 He had had a conversation with Dr. Senger about the convictions, and she had impressed upon him the need to answer questions honestly. He stated that, as a result of that conversation, he has realized how important it is to disclose the information about his prior convictions. Since then, he testified that he has been disclosing the prior convictions to anyone who asked for it. (Tr. at 47, 49) In particular, Dr. Byakika explained that, when he had applied for a medical license in North Carolina in 2007, he had disclosed his convictions. Also, he noted that he had disclosed his convictions when he had applied for privileges at Cape Fear Valley Hospital in 2007. The hospital requested that Dr. Byakika be evaluated by the North Carolina Physicians Health

12.

13.

Dr. Byakika testified that he believes Dr. Senger learned about the convictions from his former in-laws. He explained that, in early 2007, he was going through a divorce, and he thought it was his in-laws way to get back at me. He was not sure if he had disclosed his convictions in Colorado to anyone at the CMEF residency prior to what he described as his former in-laws disclosure. (Tr. at 50-51, 55-56)

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Program. Dr. Byakika was assessed by the North Carolina Physicians Health Program in October 2007. (Tr. 43-45, 48) The evaluator wrote: Dr. Byakika and I met for approximately two hours, and based on this meeting, I found no evidence of impairment in the area of substance abuse or mental health. Dr. Byakika was open and forthcoming regarding his past, and I thoroughly enjoyed meeting and talking with him. (Respondents Exhibit [Resp. Ex.] B) As noted earlier, Dr. Byakika was offered a position with Cape Fear Valley Hospital and, at the time of the hearing in this matter, worked there. Additionally, Dr. Byakika received a medical license in North Carolina. 14. Dr. Byakika further testified that, currently, he plans to continue to practice medicine in North Carolina. He has no plans to practice medicine in Ohio. He might consider a fellowship; his interests are pulmonary and critical care and gastroenterology. (Tr. at 33)

Letter of Support 15. Dr. Senger wrote a letter of support for Dr. Byakika. She stated: I got to know Dr. Byakika when I came to Canton [on] February 1, 2006 as Program Director of the Internal Medicine Residency Program. At that time, Richard was a [post-graduate year] 2 resident. He was chosen to serve as a Chief Resident during his 3rd year of training. Chief residents are typically chosen as the outstanding role models for the residents. The faculty chose Richard because of his exemplary medical knowledge, commitment to professionalism and his ability to relate to patients, peers and attendings. Dr. Byakikas evaluations as a resident/Chief Resident indicate that he consistently performed above the level expected for a resident at his level of training. During his time here in Canton, there were absolutely no issues of professional behavior. (Resp. Ex. A)

FINDINGS OF FACT 1. On May 10, 2004, Richard Luboga Byakika, M.D., submitted an application to the Board for a training certificate. By signing the Affidavit and Release of Applicant section of the application, he certified that the information provided in the application was true and correct. Dr. Byakika answered No to question 15, which asked whether he had ever been convicted or found guilty of a violation of any law, regardless of the legal jurisdiction in which the act

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was committed, other than a minor traffic violation. He also answered No to question 16, which asked, in part, whether he had ever been summoned into court as a defendant or had any lawsuit filed against him (other than a malpractice suit). 2. On August 15, 2001, Dr. Byakika was summoned and later charged in People of the State of Colorado v. Richard Luoga [sic] Byakika, Case No. 2001 T 005259, Boulder County Court, Colorado, with three criminal violations, including reckless driving in violation of Section 424-1401, Colorado Revised Statutes. On February 22, 2002, Dr. Byakika pleaded guilty to reckless driving and the remaining two criminal counts were dismissed. He was sentenced to provide 24 hours of community service. Additionally, Dr. Byakika was required to pay a traffic fine of $100, pay court costs of $18, contribute $35 to the victim assistance fund, and contribute $35 to the victim compensation fund. On February 7, 2002, Dr. Byakika was summoned and later charged in People of the State of Colorado v. Richard Luboga Byakika, Case No. 02M200191, Loveland Division of the Larimer County Court, Colorado, with two criminal counts, including harassment in violation of Section 18-9-111, Colorado Revised Statutes. Dr. Byakika was found guilty of both charges, but convicted only of harassment, a misdemeanor. The second charge was dismissed. On December 19, 2002, he was sentenced to one year of unsupervised probation. Also, he was required to pay court costs of $18, contribute $60 to the victim assistance fund, and contribute $60 to the victim compensation fund. The Board granted an Ohio training certificate to Dr. Byakika in 2004. Dr. Byakika completed training in Ohio in 2007, and now resides and works in North Carolina.

3.

4.

CONCLUSIONS OF LAW 1. Based upon Findings of Fact 2 and 3, the acts, conduct, and/or omissions of Richard Luboga Byakika, M.D., as set forth in Finding of Fact 1 constitute fraud, misrepresentation, or deception in applying for or securing any certificate to practice or certificate of registration issued by the board, as set forth in Section 4731.22(A), Ohio Revised Code. Section 4731.22(A), Ohio Revised Code, provides: The state medical board, by an affirmative vote of not fewer than six of its members, may revoke or may refuse to grant a certificate to a person found by the board to have * * * committed fraud, misrepresentation, or deception in applying for or securing any certificate to practice or certificate of registration issued by the board. In a decision by the Franklin County Court of Common Pleas interpreting this statute, the Court held that, when the Board finds a violation of Section 4731.22(A), Ohio Revised Code, the Board may only revoke or * * * refuse to grant a certificate. Istanbooly, M.D., v. State Med. Bd. of Ohio, Case No. 03-CVF-02-2334 (Dec. 4, 2003), unreported. Thus, the range of penalties available to the Board does not include a fine, probation, suspension, or stayed

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revocation. Accordingly, unless the Board decides to revoke Dr. Byakikas training certificate, the Board shall take no further action based on the violation of Section 4731.22(A), Ohio Revised Code. 2. Based upon Findings of Fact 2 and 3, Dr. Byakikas acts, conduct, and/or omissions as set forth in Finding of Fact 1 constitute [m]aking a false, fraudulent, deceptive, or misleading statement in the solicitation of or advertising for patients; in relation to the practice of medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or a limited branch of medicine; or in securing or attempting to secure any certificate to practice or certificate of registration issued by the board, as set forth in Section 4731.22(B)(5), Ohio Revised Code. Based upon Findings of Fact 2 and 3, Dr. Byakikas acts, conduct, and/or omissions as set forth in Finding of Fact 1 constitute violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provisions of this chapter or any rule promulgated by the board, as set forth in Section 4731.22(B)(20), Ohio Revised Code, to wit: Section 4731.291, Ohio Revised Code. * * * * *

3.

It is possible that Dr. Byakika did not carefully read questions 15 and 16 on the Ohio training certificate application, as he testified. However, for several reasons, the Hearing Examiner concludes instead that Dr. Byakika chose not to disclose his criminal convictions on the Ohio training certificate application. First, the incorrect answers to questions 15 and 16 do not appear to be an isolated oversight. From his own testimony, Dr. Byakika may have provided erroneous information on the other applications that he had completed in 2004 and he may not have disclosed his criminal convictions at the time he applied for the CMEF residency. Second, Dr. Byakika stated that, as a result of his conversation with his residency program director in 2007, he now understands that it is really important to correctly answer questions and disclose the information. This testimony demonstrates that Dr. Byakika did not want others to discover the fact that he had been criminally convicted and, because he now understands the repercussions associated with such omissions, he has decided to disclose the convictions. Third, if his former in-laws disclosed the criminal convictions to his residency director as a means to get back at him, it appears that Dr. Byakika likely did not voluntarily disclose his criminal convictions in the past. Furthermore, the Hearing Examiner is not convinced that Dr. Byakika truthfully testified at hearing regarding the reason for his negative answers to questions 15 and 16. For these reasons, the Hearing Examiner concludes that Dr. Byakikas actions were not an accidental, careless oversight on his part; rather his incorrect answers were intentionally provided. 5 Accordingly, the allegations have been demonstrated by a preponderance of the evidence.

The Ohio Court of Appeals stated, in Coleman Jr., M.D., v. State Med. Bd. of Ohio, 2007-Ohio-5007, Case No. 06AP1299 (Sep. 25, 2007), that in order to sanction an applicant for violating Sections 4731.22(A) and/or 4731.22(B)(5), Ohio Revised Code, the Board must find that the applicant intended to mislead the Board. Additionally, the Court stated that intent may be inferred from the surrounding circumstances, such as when an applicant clearly has information that he fails to disclose in response to a direct question.