Wilcox v. Louisiana State Board of Medical ExaminersWilcox v. Louisiana State Board of Medical Examiners
- Reporters:
- Before:
- Williams, Redmann, Barry
Following a formal evidentiary hearing, the Louisiana State Board of Medical Examiners [“the Board“] found defendant Moses E. Wilcox, M.D., guilty of “[p]rescribing, dispensing or administering habit-forming or other lеgally controlled substances in other than a legal or legitimate manner,” and “[p]rofessional or medical incompetency,” in violation of the Louisiana Mediсal Practice Act‘s provisions
On appeal, defendant argues that the action taken by the Board should be voided bеcause the Board failed to comply with the Louisiana Open Meetings Law,
Defendant also argues on appeal that the Board violated his due process rights; first, by presenting primary evidence concerning defendant‘s case at hearings about which defendant was not notified and at which defendant was not represented; and second, because the standards applied by the Board werе unconstitutionally vague.
Defendant‘s first argument is merely speculative. At trial, defendant was granted a continuance specifically to review and offer into evidence portions of transcripts from the contemporaneous Board hearings of other doctors accused of prescribing controlled substances in an illegаl manner, so that defendant could prove his allegations of unconstitutionality. Defendant introduced no such evidence. Further, “[a] final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law.”
Defendant further argues that
This argument is without merit. The statutory provision incorporates federal and Louisiana lаw in the area. Federal regulations provide that:
A prescription for a controlled substance to be effective must be issued for a legitimate medical purрose by an individual practitioner acting in the usual scope of his professional practice.... An order purporting to be a prescription issued not in the usual сourse of professional treatment
... is not a prescription ... and the... person issuing it shall be subject to the penalties provided for violations of the provisions оf law relating to controlled substances.
Lastly, defеndant argues that the Board has failed to meet its substantive burden of proof and that the judgment, therefore, cannot stand. In particular, defendant attacks the qualificаtions and credibility of the Board‘s witnesses, and seeks to justify each of the prescriptions he issued for Schedule II controlled substances. After reviewing the record we find the Board‘s witnesses to be qualified and credible. The physical evidence in the record, including copies of 697 Schedule II prescriptions, primarily for Preludin and Desoxyn, issued by the defendant over a 15 month period, was highly probative. The defendant maintained patients on Preludin or Desoxyn for as long as eight months. One 5‘6” patient, whose weight of 127 pounds was clearly not excessive, was prescribed Desoxyn for a period of five months. In some instances, a patient was issued two prescriptions for Schedulе II drugs in the same day. We cannot conclude other than that the Board has easily met its burden of proving defendant‘s violation of
On cross-appeal, the Board submits that the trial court erred in modifying the Board‘s Final Decision.
In its Reasons for Judgment, the court wrote:
The indeterminate suspension of a narcotics license raises severe constitutional questions. The court also feels that permitting the medical practice by a physician with restrictions from prescribing necessary drugs, subjects the patient to dangers of improper treatmеnt.
For this reason, the court feels the restriction should coincide with the suspension period.
More protection for society will be accomplished in this instancе by a probation of five (5) years rather than the penalty previously imposed.
La.R.S. 49:964(G) .
The Board refers to its clear authority to permanently revoke a license tо dispense controlled substances,
... if substantial rights of the appellant have been prejudiced because the administrative findings, inferenсes, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
* * * * * *
Casting judgment upon the professional behavior of a fellow member of the medical profession is a matter peculiarly within the expertise of an agency composed of members of that profession. Courts should be cognizant of the very strong presumption of validity and propriety in such an administrative action. See Fisher v. Louisiana State Board of Medical Examiners, 352 So.2d 729 (La.App. 4th Cir. 1977), writ den., 353 So.2d 1338 (La.1978).
The trial court modified the Board‘s decision and substituted its own judgment. We believe that the Board‘s decision should be reinstated, clarifying it to indicate that the controlled substances license suspension shall run concurrently with the three year probationary period.
Accordingly, we amend the trial court judgment such that defendant‘s license to practice medicine is suspended for three months and his license to prescribe Schedule II controlled substances is suspended for three years, to run concurrently with his three year probation.
AMENDED.