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BEFORE THEMEDICAL BOARD OF CALIFORNIADEPARTMENT OF CONSUMER AFFAIRSSTATE OF CALIFORNIAIn the Matter of the AccusationAgainst:)))DARREN LYLE BERGEY, M.D.Case No. 09-2009-198021))Physician's and Surgeon's CertificateNo. A72267))OAH No. 2011051175)Respondent.))DECISION AFTER NONADOPTIONThe proposed decision in the above captioned matter was issued on July 8, 2012, and Panel Aof the Medical Board of California (Board) thereafter declined to adopt that decision, and, on July 27,2012, notified both Complainant and Respondent of its action. On September 25, 2012, the Boardissued a Notice of Hearing for Oral Argument for October 25, 2012.On October 25, 2012, Oral Argument was presented by both Complainant and Respondent toPanel A, and Panel members Bishop, Diego, Salomonson, Serrano Sewell, and Yaroslavsky werepresent. Having heard oral argument, and considered the entire record, including written argumentsubmitted gy both parties, the Panel hereby makes and enters the following as its decision in thematter:The proposed decision of the Administrative Law Judge dated ,July 8, 2012 (attached), ishereby adopted by the Board as its decision in this matter.This decision shall become effective at 5 p.m. on o e c ember 7 ,IT IS SO ORDERED this B thday of Novemper, 2012.MEDICAL BOARD2o1 2
BEFORE THEMEDICAL BOARD OF CALIFORNIADEPARTMENT OF CONSUMER AFFAIRSSTATE OF CALIFORNIAIn the Matter of Accusation Against:Darren Lyle Bergey, M.D.Physician's & Surgeon'sCetiificate No: A 72267Respondent)))))))))Case No.:09-2009-198021OAH No.: 2011051175 - )ORDER OF NON-ADOPTIONOF PROPOSED DECISIONThe Proposed Decision of the Administrative Law Judge in the above-entitled matter hasbeen non-adopted. A panel of the Medical Board of California (Board) will decide the caseupon the record, including the transcript and exhibits of the hearing, and upon such writtenargument as the paities may wish to submit. The pmies will be notified of the date forsubmission of such argument when the transcript of the above-mentioned hearing becomesavailable.To order a copy of the transcript, please contact Kelli Norden and Associates, 11726 SanVincente Blvd, Suite 205. The telephone number is (310) 820-7733To order a copy of the exhibits, please submit a written request to this Board.In addition, oral argument will only be scheduled if a party files a request for oralargument with the Board within 20 days from the date of this notice. If a timely request isfiled, the Board will serve all patties with written notice of the time, date and place for oralargument. Oral argument shall be directed only to the question of whether the proposed penaltyshould be modified. Please do not attach to your written argument any documents that are notpart of the record as they cannot be considered by the Panel. The Board directs the partiesattention to Title 16 of the California Code of Regulations, sections 1364.30 and 1364.32 foradditional requirements regarding the submission of oral and written argument.Please remember to serve the opposing party with a copy of your written argument andany other papers you might file with the Board. The mailing address of the Board is as follows:MEDICAL BOARD OF CALIFORNIA2005 Evergreen Street, Suite 1200Sacramento, CA 95815-3831916-263-2442Attention: Hye Rim ParkDate: July 27, 2012.Shelton Duruisseau, Ph.D., ChairPanel A
BEFORE THEMEDJCAL BOARD OF CALIFORNIADEPARTMENT OF CONSUMER AFFAIRSSTATE OF CALIFORNIAIn the Matter of the Accusation Against:Case Nos. 09-2009-198021DARREN LYLE BERGEY, M.D.,OAH No. 2011051175Physician's and Surgeon's Certificate No. G32156PROPOSED DECISIONAlan R. Alvord, Administrative Law Judge, Office of Administrative Hearings, Stateof C clifornia, heard this matter on November 28 - De.cember 2, 2011, in San Diego,California.Matthew M. Davis, Deputy Attorney General, Office of the Attorney General, Stateof Cdifornia, represented complainant Linda K Vihitney, Executive Director, MedicalBoar? of California, Department of Consumer Affairs, State of California.Thomas A. Meserau, Jr. and Susan C. Yu, Meserau & Yu LLP, representedrespondent Darren Lyle Bergey, M. D., who was present tlu·oughout the administrativehearing.'"· The record was held open for respondent to provide a written response to a rebuttalexhibit offered by complainant on the last day of hearing, and for complainant to reply torespo.11dent's written response, if any. Respondent elected not to submit any response. Thematter was submitted on December 16, 2011.ISSUESDid Dr. Bergey use alcoholic beverages in violation of Business and ProfessionsCode section 2239?Did Dr. Bergey commit acts of dishonesty and corruption when he denied havingconsumed alcohol to Medical Board investigators?
Did Dr, Bergey commit general unprofessional conduct in any of the above?If grounds for discipline exist, what is the appropriate measure of administrativediscipline?SUMMARYClear and convincing evidence did not establish that Dr. Bergey voluntarily consumedrn1y intoxicating substance, that he committed any acts of dishonesty or conuption, or that hecommitted any acts of general unprofessional conduct. As a result, the accusation isdismissed.FACTUAL FINDINGSJurisdictional Matters1.On November 30, 2010, complainant Linda K. Whitney, Executive Director,Medical Board of California (the Medical Board), Department of Consumer Affairs, State ofCalifornia, signed the accusation in Case No. 09-2009-198021 against Darren Lyle Bergey,M.D (respondent or Bergey) in her official capacity. Bergey filed a timely notice of defense.The accusation alleged that the conduct leading to respondent's ai-rest for publicintoxication on February 20, 2009 constituted a violation of Business and Professions Codesection 2239, that respondent did not tell the truth to Medical Board investigators, and that·respondent engaged in general unprofessional conduct in May 2009.On November 28, 2011, the record was opened and jurisdictional documents werepresented. On November 28, 29, 30 and Dec.ember 1 and 2, documentary evidence wasintroduced, sworn testimony was given, and stipulations were received. On December 2,2011, closing arguments were made. The record was held open for Bergey to respond to adocument which complainant submitted into evidence in rebuttal on December 2, 2011. Therecord was closed rn1d the matter was submitted on December 16, 2011.Dr. Bc:rgey 's Background· 2.Bergey was born in SaskatchewM, Canada and grew up in Albe1ta, Canada.His father was a Seventh Day Adventist 1Tiinister and his mother was a homemaker. Thefamil)' moved to the United States in 1983. Bergey received a Bachelor of Science degreefrom Dallas Baptist University in 1988 and attended the University of North Texas in 1991with a major in biochemistry. He received an M.D. from Loma Linda University School ofMedkine in 1996. He took prnt in a three-yeai· residency in general surgery at the MayoSchool of Graduate Medical Education in Rochester, Mirmesota from 1996 to 1998, a fourycar residency in orthopedic surgery at Loma Linda University Medical Center from 1999 to2002,· and a fellowship in spinal disorders at Cedars-Sinai Institute for Spinal Disorders in2003.2
. He is currently the director of spine surgery at Kindred Hospital Rancho (formerlyRancho Specialty Hospital), His primary medical offices are in Colton, California, withadditional offices located in Rancho Cucamonga, Indio and Chula Vista. I-le performssurgeries at Kindred Hospital Rancho in Rancho Cucamonga, St. Bernadine Medical Centerin San Bernardino, Newport Specialty Hospital in Tustin and Premier Outpatient SurgeryCenter in Colton.Dr. Bergey is also involved in clinical research trials, authoring peer review journalarticles and participating in authoring textbooks.Bergey 's llisto1y ofA /coho/ism and Recovery3.Dr. Bergey has a long history of alcohol abuse. He was not a daily drinker.He had periods of binge drinking during which he achieved extremely high blood alcoholcontent. I-le received convictions for driving under the influence of alcohol in 2001, andMay and July 2006. 14.On July 24, 1998, while a surgical resident at the Mayo Clinic in Miimesota,Bergey went out with friends after work and drank alcohol to excess. As he drove home, apolice officer pulled him over for having tail lights out. Bergey was looking for his wallet,which had fallen to the floor, when the officer approached the vehicle at the driver's sidedoor. The officer used his handgun to knock on the dtiver's side window while instructingBergey to roll down the window. As the officer knocked on the window with his weapon,the gun accidentally discharged and Bergey was shot. The bullet entered under his rightcheek and exited at the base of his neck. He had a Jong period of recovery to resume hissurgical residency. In addition to the obvious injuries one would suffer from being shot inthe head, he suffered facial palsy for a period of time. He also developed a subconscious fearof police officers.5.Bergey was divorced in 2004 after 14 years of marriage. 1-le became a singlefather of four children and his use of aleohol increased during this time. After his secondDUI arrest, Bergey began to realize he had a problem with alcohol. After his third aITest hedetermined to seek help. He realized he had been drinking more and more and was spiralingout o':I' control. I-le had a colleague take over bis medical practice. He checked in to a threemonth rehabilitation program in January 2007 at Eaton Canyon Treatment Center inPasadena, CA. The program involved one month of inpatient treatment and two months ofoutpatient treatment.6.After he completed the rehabilitation program at Eaton Canyon, he voluntarilycontacted the Medical Board about entering the board's diversion program. Upon contactingthe board, he learned that the Medical Board already had an open disciplinary investigationarising out of his DUI convictions. On June 27, 2007, he entered into a "statement ofunde1 slanding" with the Medical Board under which the board would not take disciplinary1These convictions are not alleged as a basis for discipline, but are alleged as factors inaggravation.·3
aetion against his medical license if he ""'as in compliance with the diversion program'srequirements for three years.7.Jn the diversion program, Bergey was required to participate in AlcoholicsAnonymous meetings al least five times per week, diversion group meetings al least twiceper week, random urine testing at least four times per month and have worksite monitors.The random urine testing required Bergey to check in by telephone or online by 5:00 p.m.each day to be told whether he would be tested. Ifhe was told he must test, he was requiredto appear at a testing center by midnight that day. A failure to check in, or a failure to testafter being told to, are considered to be violations of the diversion program.The Medical Board terminated its diversion program in 2007 due, in part, to concernsover its administration and efficacy. With the board's consent, Bergey entered into anagreement with Pacific Assistance Group, a private diversion program operated by some ofthe same staff who had operated the board's diversion program. When his tlu·ee yearcommitment to diversion expired, Bergey elected to remain in the diversion programvoluntarily. He remained in good standing with the program as of the elates of the hearing.Over a five year period in diversion, Bergey never missed a check in for urine testing,never failed to test when required, and never had a positive test. The two incidents at issue inthis case in February and May 2009 are the only times Bergey is alleged to have consumedalcohol.In addition to performing the requirements of diversion, Bergey entered couplestherapy with his then girlfriend C9 FA (F ) in September 2008 and, from March 2009to the present, continued individual psychotherapy with Lafaye Sutkin, Ph.D., a licensedclinical psychologist.Relationship withC-I'-8.Bergey had a history of troubled relationships with women. He and his wifewere married for 14 years and had four children, His wife had bipolar disorder. They weredivorced in 2004. Bergey's use of alcohol escalated as he adjusted to being a single man andsingle parent after 14 years of marriage. In February 2006, he met C - IWll. F workedas a surgical equipment distributor and appeared to be a professional and successful woman.At the begiiming of the relationship, Bergey and F engaged in activities which included alot of heavy drinking.As time went on, the relationship began to have difficulties. Fa was emotionallylabile and, contrary to Bergey's initial impression, was not financially secure.9.When Bergey decided to enter alcohol recovery al the end of2006, F wassupportive at first. Her initial support for Bergey's new sober lifestyle eventually waned andshe became less supportive. Over time, she began to actively undermine his sobriety.4
I 0.In 2007, F was being investigated by law enforcement for her involvementin what was described as a kickback scheme in the worker's compensation industry. Thisinvestigation, along with other circumstances, resulted in financial difficulties and otherpersonal stress for F . In late 2007, Bergey undertook to help FW with her financialdifficulties. He helped her secure a marketing position at Rancho Specialty Hospital, wherehe performed surgeries. He also helped her surgical equipment distributorship by orderingsupplies tlu·ough her business and encouraging other surgeons to do the same. Bergey'sinfluence and contacts allowedto become very well compensated for her marketingwork and her surgical equipment supply work.Fa11.While Bergey was doing well maintaining his sober lifestyle, he had difficultymanaging the emotions of his tumultuous relationship with Fa. They argued often andbroke up and got back together several times. F attempted suicide in 2007. In thesummer of 2008, F complained that she was bored with him. She began drinking toexcess and was attempting to undermine his sobriety. She was arrested for driving under theinfluence of alcohol.·F 12.Dr. Sutkin testified that Bergey's history with women made it difficult for himto end relationships. He held on to the relationship witheven when it threatened hissobriety.13.In the fall of2008, Bergey began to hear complaints about F from herbusiness associates. The administrative executives at the hospital were upset because shewas not performing well in her marketing position. Bergey communicated these concerns toFa: She became very angry at.him and made it clear that she expected him to defend her.She wanted him to threaten to take his surgical business to another hospital as a way to makeher position more secure. Bergey refused to intervene on her behalf.14.F also began to pressure Bergey to marry her. He realized that therelationship was troubled and wanted to work on the relationship before agreeing to getmarried. He convinced her to begin couples therapy with him. They started seeing Dr.Sutkin together in September 2008. F was not very committed to the couples therapy.When she did not show up for sessions with Dr. Sutkin, Bergey met with Dr. Sutkinindividually.15.Fa admitted to several people on several occasions, including the board'sinvestigator, that she "knocked out" Bergey by slipping him drugs to make him sleep so shecould go out and have fun.Events of February 20, 200916.In February, 2009, Bergey and F went on a vacation to Hawaii to try towork on their relationship. Bergey had decided that the only way their relationship had achance to work was if they severed their business relationship completely. That meant thathe wanted F to give up her lucrative position at the hospital, and that Bergey would stopusing her distributorship for surgical supplies.5
17.While on the vacation in Hawaii, as Bergey asserted his position that they .must unwind all of their business affiliations to make the relationship work, they got into afight. F ended up calling the police and accusing Bergey of domestic violence. Thepolice interviewed him, but no charges were filed. Bergey left the hotel room they weresharing at the time and moved to another location. They finished t11e Hawaii vacationsepai·ately.They were due to leave Hawaii on February 20, 2009, Although they had separatedduring the vacation, they sat next to each other on the flight home. During the flight, theytalked and decided to give their relationship another try. They decided to go out for dinnerafter their mTival. F then invited a girlfriend to join them for the evening. Bergey did notget along well with the friend and was upset that F had invited her when he thought theywere going to use the dirmer to continue their efforts to reconcile. Despite hisdisappointment with F for inviting her girlfriend along for dinJ1er, Bergey reluctantlyagreed to go along.The three had dinner at a Mexican restaurant. They left that restaurant and went toanother location, finally ending up at Sullivan's Steakhouse in Palm Desert.18.The early evening of February 20, 2009, Sullivan's Steakhouse managementcalled the police complaining that respondent and his two compm1ions were disorderly. Atapproximately 6: 15 p.m., Riverside Sheriffs deputies arrived on the scene. When theofficers an-ived, respondent and the two women were outside in the pm·king lot. The officersnoted that respondent was unstable on his feet and appem·ed to be heavily intoxicated. Bothofficers identified several of the signs and symptoms of alcohol iJ1toxication including theinability to stm1d without assistance, red watery eyes, slurred speech and the strong odor ofalcohol on his breath. Respondent was belligerent and combative with the officers. Theofficei·s offered to call a friend to pick him up and drive him home. Bergey refused. Theofficers offered to drive him home and he refused their help. The officers determined thatBergey was a danger to himself and others due to his obvious impairment, belligerence andrefusal to accept any assistance. The officers decided to arrest Bergey for public·intoxication.19.One of the officers was assit,'11ed to transport respondent in his police car to thestation. During the ride, respondent became verbally abusive. The officer turned on arecording device in tl1e vehicle and made a 30-minute high-quality recording of respondent'stirade. In the recording, respondent can be heard alternately insulting the officer withvulgarity and racial slurs, pleading with him, shouting at him, crying and threatening to sue·him.The sheriffs did not perform any forensic testing ofBergey's blood, breath or20.urine when they arrested him. Bergey's next required urine test under the diversion programwas performed on February 23, 2009, three days after the arrest. He was given test "'panelA," which tested for the presence of alcohol within the last 24 hours and evidence of themost common street drugs. The test was negative.6
Bergey testified that he remembers very clearly eating dinner at the Mexicanrestaurant ancl drinking only iced tea. He denied ordering any alcoholic beverages. I-le didnot remember leaving the Mexican restaurant. I-le did not remember going to the second baror going to Sullivan's Steakhouse. He has vague memories of screaming in the back ofa carand of being booked and fingerprinted. His first full memory was the next morning when hismind became clear in jail. He wondered how he had gotten there.21.There was no evidence that Bergey was charged with any crime for his conduct onFebruary 20, 2009.F 22.Bergey discussed the incident with F the next day. She was also aJTestedfor assaulting pne of the officers.told Bergey 2 she "spiked" his iced tqa because he was"being a dick." She told him that he deserved to feel what it was like for someone to take hiscareer away.23.Bergey discussed the incident with Dr. Sutkin shortly after it happened.Bergey told Dr. Sutkin that F admitted she drugged him that nig
Bergey was born in SaskatchewM, Canada and grew up in Albe1ta, Canada. . 2002,· and a fellowship in spinal disorders at Cedars-Sinai Institute for Spinal Disorders in 2003. 2 . He is currently the director of spine surgery at Kindred Hospital Rancho (formerly Rancho Specialty Hospital), His primary medical offices are in Colton, California .
