The Court of Special Appeals of Maryland (“Maryland Appellate Court”) held in its unreported opinion filed on December 13, 2017 that “there was substantial evidence to support the Board’s determination that [the pain management physician’s] prescribing practices, including selling prescriptions in a non-office setting, constituted unprofessional conduct in the practice of medicine.”
The Maryland pain management physician challenged the decision of the Maryland State Board of Physicians (“Board”) that concluded that he was guilty of unprofessional conduct in the practice of medicine in violation of Md. Code (2014 Repl. Vol.) § 14-404(a)(3)(ii) of the Health Occupations Article. The Board ordered that the pain management physician be reprimanded, that he be placed on probation for a minimum of two years during which he is prohibited from prescribing controlled dangerous substances (“CDS”), and that he be required to complete an approved comprehensive course in medical ethics. The pain management physician challenged the Board’s findings and the discipline he received.
The pain management physician, who worked for a health care clinic as as a neurology consultant providing pain management services, was observed by a waitress in a restaurant in September 2012, filling out a prescription pad. As he filled out the prescriptions, he would tear them off and sit them in a pile on the table. The waitress observed money (“a wad of cash” folded in half with a twenty dollar bill on the outside) physically exchange hands between the pain management physician and the older woman of the two women that were there, which he placed in his pocket.
On October 1, 2012, a witness observed the pain management physician pull into the same restaurant’s parking lot, exit his vehicle, and walk behind a building on the property while talking on the phone. The witness called 911, and the police and a DEA agent arrived and interviewed the pain management physician, who informed them that he was meeting a patient at the restaurant to discuss his upcoming testimony in a case but that he also had prescribed oxycodone.
The DEA agent asked the pain management physician if he met with other patients in parking lots or bars and prescribed them medication. The pain management physician allegedly admitted that he met a few patients that he prescribes medication to outside of the office setting, but those patients saw him in the office once a month, and he further advised that each time he met with a patient or prescribed them medication, he made a medical note. The pain management physician allegedly stated that he charged $100 per prescription, which he considered gas money and that he should be paid because he is providing a service. The pain management physician allegedly confirmed that he had previously written prescriptions for another patient while at a separate restaurant.
During the disciplinary hearing, the pain management physician admitted to prescribing oxycodone, Xanax, and an antibiotic, charging $100 for each prescription.
On April 25, 2016, the Board issued its Final Decision and Order, concluding, inter alia, that the pain management physician engaged in unprofessional conduct in the practice of medicine.
The pain management physician challenged the Board’s decision, contending that the Board’s decision violated his due process rights because it disregarded the charge as understood by the administrative law judge, and it found him guilty of new charges of selling prescriptions to the public and breaching confidentiality without an opportunity to defend against the new charges.
The Maryland Appellate Court held that the charging document made clear that the pain management physician was being charged with unprofessional conduct in the practice of medicine, and the charges were consistent with the Board’s findings.
The Maryland Appellate Court further held that there was substantial evidence to support the Board’s determination that the pain management physician’s prescribing practices, including selling prescriptions in a non-office setting, constituted unprofessional conduct in the practice of medicine: the Board found that selling prescriptions for cash in a public place is a flagrant abandonment of professionalism, and it endangers the public and diminishes the standing of the medical profession in the eyes of members of the general public.
Source Kozachuk v. Maryland State Board of Physicians, No. 2294.
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