[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Notices]
[Pages 55047-55051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26725]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-63]
Robert L. Dougherty, Jr., M.D.; Revocation of Registration
On July 29, 1993, the Deputy Assistant Administrator (formerly
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to Robert L. Dougherty, Jr., M.D.
(Respondent), of Poway, California, notifying him of an opportunity to
show cause as to why DEA should not revoke his DEA Certificate of
Registration, AD1048861, and deny any pending applications for renewal
of such registration as a practitioner, under 21 U.S.C. 823(f) and
824(a)(4), as being inconsistent with the public interest.
Specifically, the Order to Show Cause alleged that: (1) Between January
1990 and March 1992, the Respondent prescribed the following controlled
substances, Demerol, Percocet, Percodan, Preludin, Nembutal, Fastin,
Tenuate, Valium, and Xanax, to an individual for no legitimate medical
purpose and outside the scope of his professional practice; (2) between
December 1990 and December 1991, the Respondent prescribed the
following controlled substances, Lortab, Vicodin, Darvocet, and other
dextropropoxyphene combination products, to an individual for no
legitimate medical purpose and outside the scope of his professional
practice; (3) between January 1991 and April 1992, the Respondent
prescribed the following controlled substances, Lortab, Vicodin, and
Oxazepam, to an individual for no legitimate medical purpose and
outside the scope of his professional practice; (4) between April 1990
and July 1990, the Respondent ordered the following controlled
substances, Demerol, morphine, Lortab, Vicodin, Xanax, and Halcion,
without maintaining receipt or dispensing records of such orders; (5)
in April 1992, various controlled substances were located at the
Respondent's residence although the residence was not a registered
location at that time.
On August 18, 1993, the Respondent filed a timely request for a
hearing, and following prehearing procedures, a hearing was held in San
Diego, California, on July 26, 27, and 28, 1994, before Administrative
Law Judge Paul A. Tenney. At the hearing the Respondent was represented
by counsel, both parties called witnesses to testify and introduced
documentary evidence, and after the hearing, counsel for both sides
submitted proposed findings of fact, conclusions of law and argument.
On January 12, 1995, Judge Tenney issued his Findings of Fact,
Conclusions of Law, and Recommended Ruling, recommending that the
Respondent's DEA Certificate of Registration be suspended for a period
of one year. On January 23, 1995, the Government filed Exceptions to
the Opinion and Recommended Decision of the Administrative Law Judge,
and on March 20, 1995, the Respondent filed a Response to the
Government's Exceptions.
On March 22, 1995, Judge Tenney transmitted the record of these
proceeds to the Deputy Administrator.
The Deputy Administrator has considered the record and the
submissions of the parties in their entirety, and pursuant to 21 CFR
1316.67, hereby issues his final order based upon findings of fact and
conclusions of law as hereinafter set forth. The Deputy Administrator
adopts the findings of fact and conclusions of law of Judge Tenney,
except as noted below, and his adoption is in no manner diminished by
any recitation of facts issues and legal conclusions herein, or of any
failure to mention a matter of fact or law. However, for reasons
explained below, the Deputy Administrator rejects Judge Tenney's
recommendation as to the appropriate disposition of this case.
The Deputy Administrator finds that in February 1992, as a result
of a call from a local pharmacist, a DEA Diversion Investigator
(Investigator) opened a case to investigate allegations that the
Respondent was prescribing excessive amounts of controlled substances
to a named individual, Patient #1. In March 1992, an employee of the
Respondent also called the Investigator concerning the Respondent's
prescription practices relevant to Patient #1. Next, an agent from the
California Department of Justice, Bureau of Narcotic Enforcement
(Agent) obtained a listing of triplicate prescriptions written for
Schedule II controlled substances for a two year period under the
Respondent's DEA Certificate of Registration number. She testified
before Judge Tenney that the overall number was ``fairly modest,''
except for those pertaining to Patient #1, which appeared excessive.
The Investigator sent this listing to a medical doctor, Dr. Denes, for
review. Without benefit of Patient #1's treatment record, in a letter
dated March 18, 1992, Dr. Denes wrote that the prescription pattern for
Patient #1 was highly suspect. For example, Dr. Denes wrote that
Percodan and Demerol, both Schedule II controlled substances, are
typically used on a short term basis and prescribed at a maximum of
four doses per day. However, the Respondent has prescribed enough of
this substance for Patient #1 to take an average of 3.7 doses per day
during all of 1990, and 11.4 doses per day in 1991. Dr. Denes also
wrote that the Respondent's practice of prescribing large quantities of
both nervous system depressants and nervous system stimulants ``is
highly irregular in the medical profession and raises the very strong
likelihood of drug abuse. I cannot conceive of any legitimate medical
condition which would require the prescribing of these drugs, in these
quantities, to any patient.'' Relying upon the information received
from Dr. Denes, DEA obtained
[[Page 55048]]
a search warrant for the Respondent's office and residence, and
executed this warrant on April 24, 1992.
Prior to executing the search warrant, the Investigator had
obtained ten DEA Form 222's (official triplicate order forms used by
physicians to order scheduled narcotics), showing shipment dates
between April 16, 1990, and indicating that a local pharmacy had filled
the Respondent's orders for Demerol and Morphine, and had shipped the
orders to the Respondent at his office. At both the Respondent's office
and home, investigators searched for the Respondent's copies of the
previously obtained DEA Form 222's. The Respondent had told the
Investigator the documents were on his desk in his office, but after
two hours of searching through a disorganized stack of documents on and
in the Respondent's desk, the Investigator was unable to locate the
forms. She testified before Judge Tenney that after this two hour
search she had concluded that the forms were not ``readily
retrievable'' and she ended her search. The investigators were also
unsuccessful in locating a ``biennial inventory'' at either the
Respondent's home or office, and during the hearing before Judge
Tenney, the Respondent conceded that he had not maintained a biennial
inventory. Investigators were also unable to locate at either the
Respondent's home or office receipts for controlled substances that the
Respondent had purchased from drug distributors between 1990 and 1992,
or receipts for controlled substances that were actually located at the
Respondent's office at the time of the search. The Respondent conceded
that he did not keep receipts for samples of controlled substances that
he had been given from drug company representatives, substances such as
Xanax, Valium, and Halcion. During his hearing testimony, the
Respondent conceded that he had not directed anyone in his office to
keep a record of the actual receipt of controlled substances, although
he ``inconsistently, and not most of the time'' placed a note in a
notebook. The parties dispute the existence of dispensing records, for
the investigators were unable to locate such records at the time of the
search, but the Respondent asserted that he maintained dispensing
records, that those records were located in the pile of documents on
the top of his desk, but that they disappeared in the search. The
Respondent testified that the dispensing records were mostly for
injectable substances (Demerol and morphine), but that there were
``probably a few, but nothing major'' with respect to ``all the others,
the samples, [and] the Xanax.'' The Respondent also testified that he
dispensed samples to patients other than Patient #1, that he had an
annotation system for the patients' records noting such dispensing, but
that he did not use this system in Patient #1's record.
Patient #1 became Respondent's patient in 1974, he is a Vietnam
veteran who was injured, and he is a medically retired San Diego Police
Officer. He was medically retired after experiencing three back
injuries, consulting with at least two neurosurgeons and two orthopedic
surgeons in San Diego, being diagnosed with extensive lumbar-spine
disease and a herniated disk in the cervical spine, and requiring pain
medication pending major surgery. The Respondent testified that he had
``received, to [his] satisfaction, incontrovertible proof that [Patient
#1's] pain was real.'' In the early 1980's, Patient #1 received
treatment at a pain clinic to try to decrease his reliance upon
narcotic pain medication. Also his treatment record contained notations
made in the early 1980's as part of an arthritic clinic's treatment,
reflecting that Patient #1 believed that he was addicted to pain
medicine, and that the planned treatment was ``to decrease the
patient's pain-medication addiction.''
At the hearing before Judge Tenney, the Government called Dr. Ling
as an expert witness. The parties dispute whether this witness should
be regarded as an expert witness in pain management, but Judge Tenney
reviewed the witness's Curriculum Vitae (made a part of the record) as
well as the witness's testimony concerning his professional education
and experience, and determined that Dr. Ling was also qualified as an
expert in pain management. After reviewing Patient #1's treatment
record, Dr. Ling concluded that generally he had no dispute with the
manner or amount of controlled substances the Respondent prescribed to
Patient #1 during the 1980's. However, after Patient #1 moved into the
Respondent's home in early 1990, the notations in his chart became
sporadic, ending on December 3, 1991. Dr. Ling testified that the
Respondent's standard of care as to Patient #1, to include a lack of a
medical record showing Patient #1's treatment, and the excessive
amounts of prescribed medication between January 1990 and February
1992, ``fell below community standards for the average physician.'' He
conditioned this opinion by stating that the evidence ``does not
support that the doctor was prescribing for an illegitimate purpose,''
or that ``he was doing something dishonest,'' but rather that such
prescribing was not ``appropriate treatment'' in this case. The
Respondent rebutted Dr. Ling's opinion by testifying that he altered
his patient record practices in the case of Patient #1 after he moved
into his home because he now saw him regularly and was able to closely
observe him on a daily basis. Further, the Respondent testified that
between 1990 and 1992 he received samples of Xanax, and gave these to
Patient #1, although such dispensing was not recorded in his chart.
Further, the Respondent conceded that from April 1991 through March
1992, virtually no Schedule II drugs were recorded on Patient #1's
chart, even though the prescription records obtained from the
pharmacies recorded that such controlled substances were prescribed and
the prescriptions filled.
However, the record also demonstrates that from mid-December 1991
to April 1992, Patient #1 ``rarely ever'' went into an examination
room, pursuant to information provided by a member of the Respondent's
staff. Patient #1 would visit the office to pick up prescriptions, and
he would often call the Respondent's office and leave a message telling
the Respondent what controlled substances to bring home. Dr. Ling
testified that such patient and physician behavior concerned him,
because the patient's demands seemed to replace the physician's
judgment. He further testified that he was aware that some chronic pain
patients receive less medication than they needed, but that he
continued to maintain that it was still the physician's judgment that
should control.
Further, the Investigator interviewed approximately 10 local
pharmacists, and the names of Patient #2 and Patient #3 were given as
patients of the Respondent who also may have been overprescribed. On
October 24, 1990, the Respondent issued Patient #2 an original
prescription for 30 dosage units of Vicodin, he saw this patient again
on November 14, 1990, and although the Respondent did not see this
patient again until May 1, 1991, he authorized more than twenty refills
from the October 24, 1990, prescription for Vicodin, a medication
containing hydrocodone, a Schedule III controlled substance. Following
this same pattern, the Respondent also issued Patient #2 an original
prescription for Darvocet-N 100 on October 24, 1990, and between that
date and May 1, 1991, he authorized more than twenty refills of
Darvocet, a medication containing propoxyphene napsylate, a Schedule IV
controlled substance.
[[Page 55049]]
The parties stipulated that Patient #3 forged prescriptions. Of
record is a list of forged prescriptions under the Respondent's name,
indicating that on February 3, 1992, February 13, 1992, March 18, 1992,
April 17, 1992, April 18, 1992, April 20, 1992, and April 21, 1992, a
total of 396 dosages of Lortab were dispensed to Patient #3, a
medication which contains a Schedule III controlled substance. The
record contains evidence that acts were taken between January 1990 and
April 1992, to notify the Respondent of Patient #3's forgeries: (1) In
January 1990, a pharmacist contacted the Respondent's office about
forged prescriptions from Patient #3, (2) a letter dated February 6,
1992, was written to the Respondent informing him of a suspicious
prescription written to Patient #3 despite the Respondent's office's
verification of the prescription which the pharmacist had filled, and
(3) in April 1992, the Respondent received notification from another
pharmacist about forged prescriptions for a controlled substance for
Patient #3. However, the Respondent authorized the refills and
continued to prescribe Lortab for Patient #3.
Also, Patient #3 was interviewed by the Investigator and the Agent,
and a transcript of that interview was made a part of the record.
Patient #3 stated that he had been a patient of the Respondent's from
July 1990 to about June 1992, that he had told the Respondent of his
past drug addiction problems, but that the Respondent continued to
prescribe Lortab, a Schedule III controlled substance. He also stated
that the Respondent talked to him about forged prescriptions, that he
had denied forging the prescriptions, but that the Respondent had told
him that he did not believe his denial. However, the Respondent
continued prescribing Lortab even after this conversation. Patient #3
stated that in June 1992 he stopped receiving treatment from the
Respondent and that he went into a rehabilitation treatment center for
90 days to overcome his addiction to Lortab.
Finally, the Respondent testified that he believed Patient #3 had
valid complaints of pain stemming from history of back pain, that he
never received a copy of a forged prescription regarding Patient #3,
that he did not see such a copy until June 1992, when he then realized
Patient #3 had been deceiving him. Further, he stated that on June 1,
he told Patient #3 he should see another doctor, but that he gave his a
small supply of Lortab to take until he could get into a clinic on June
24th. He testified that Patient #3 returned to his office a week later,
but that he merely gave him a non-narcotic pain medication. After
reviewing Patient #3's chart, Dr. Ling concluded that the Respondent's
prescribing practices were excessive with poor documentation of the
need for those narcotics, demonstrating a lack of usual care and
precaution in dealing with these kinds of prescriptions.
Pursuant to 21 U.S.C. Sections 824(a)(4) and 823(f), the Deputy
Administrator may revoke or suspend a DEA Certificate of Registration
if he determines that the continued registration would be inconsistent
with the public interest. Pursuant to 823(f), the following factors are
to be considered ``in determining the public interest:''
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health or
safety.
These factors are to be considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight he deems appropriate in determining whether
a registration should be revoked or an application for registration
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422
(1989).
In this case, factors two, four, and five are relevant in
determining whether the Respondent's retention of his Certificate of
Registration would be inconsistent with the public interest. As to
factor two, the Respondent's ``experience in dispensing controlled
substances,'' the Deputy Administrator finds that both Dr. Denes and
Dr. Ling agreed that the Respondent's dispensing of controlled
substances to Patient #1 between January 1990 and February 1992, was
``highly irregular in the medical profession,'' and was excessive. To
be effective, a prescription for a controlled substance ``must be
issued for a legitimate medical purpose by an individual practitioner
acting in the usual course of his professional practice.'' 21 CFR
1306.04(a); see also Harlan J. Borcherding, D.O., 60 FR 28,796, 28,798
(1995). Here, Dr. Ling observed that the Respondent's management of
Patient #1's medical treatment demonstrated behavior such that the
patient's demands seemed to replace the physician's judgment. Such
actions on the part of the Respondent certainly bring into serious
question the legitimacy of his dispensing of controlled substances to
Patient #1. The Deputy Administrator has previously found that
prescriptions issued under such circumstances were not for a legitimate
medical purpose, when an undercover officer dictated the controlled
substance to be given, ``rather than Respondent, as a practitioner,
determining the medication appropriate for the medical condition
presented by the officer.'' Ibid. Here, Judge Tenney concluded, and the
Deputy Administrator agrees, that the Respondent's experience included
dispensing controlled substances to Patient #1 ``on demand,''
``virtually upon request,'' with ``virtually no scrutiny,'' and with
``virtually no records or monitoring in the early 1990[']s,'' and such
dispensing practices demonstrated the Respondent's ``gross lack of
judgment.'' See Borcherding, supra. Further, the Respondent's practice
of giving Patient #1 Xanax samples without documenting his record, also
leads to the conclusion, as Judge Tenney noted, that the Respondent's
prescribing and dispensing to Patient #1 was ``outside the context of
the Respondent's usual professional practice.''
Also, the dispensing of a controlled substance in the quantities
prescribed to Patient #3, a patient known to the Respondent as an
admitted drug abuser, even after receiving warnings of forged
prescriptions, demonstrates at least a lack of precaution, and more
probably a disregard of the requirements for detailed attention to
individual patient behavior necessary for the dispensing of controlled
substances. See, e.g., Jay Wheeler Cranston, M.D., Docket No. 92-70, 59
FR 36,786 (1994). Also, the excessive number of refills provided
Patient #2 over a six-month period of time without requiring a clinical
examination or visit, demonstrates a reckless disregard for medical
standards in dispensing controlled substances. Thus, the Deputy
Administrator agrees with Judge Tenney that the Government has
established a prima facie case under factor two.
As to factor four, ``compliance with applicable State, Federal, or
local laws,'' Federal regulations as well as State law established
requirements and refill restrictions. The Government's brief provided
excerpts of California law dealing with prescription refills and
requirements, and the Respondent did
[[Page 55050]]
not object to this statement of the State law.
Therefore, as to refills, Federal regulation, 21 CFR 1306.22(a),
provides in relevant part that ``[n]o prescription for a controlled
substance listed in Schedule III or IV shall be filled or refilled more
than six months after the date on which such prescription was issued
and no such prescription authorized to be refilled may be refilled more
than five times * * *. (4) The prescribing practitioner must execute a
new and separate prescription for any additional quantities beyond the
five refill, six-month limitation.'' Further, California Health and
Safety Code 11200 states in relevant part that ``[n]o person shall
dispense or refill a controlled substance prescription more than six
months after the date thereof or cause a prescription for a Schedule
III or IV substance to be refilled in an amount in excess of a 120 day
supply, unless renewed by the prescriber.'' In this case, the
Respondent authorized an original prescription to Patient #2 for
Vicodin, containing a Schedule III controlled substance, and Darvocet-N
100, containing a Schedule IV controlled substance, on October 24,
1990, and between that date and May 1, 1991, a time exceeding six
months, authorized more than twenty refills each for Vicodin and
Darvocet, in violation of both Federal regulation and State law.
As for recordkeeping requirements, 21 U.S.C. 827(a)(3) provides in
relevant part: ``* * * on and after May 1, 1971, every registrant under
this subchapter dispensing a controlled substance or substances shall
maintain, on a current basis, a complete and accurate record of each
substance * * * received, sold, delivered, or otherwise disposed of by
him,'' and 827(b) provides that ``Every inventory or other record
required under this section (1) shall be in accordance with, and
contain such relevant information as may be required by, regulations of
the Attorney General, (2) Shall (A) be maintained separately from all
other records of the registrant, or (B) alternatively, in the case of
non-narcotic controlled substances, be in such form that information
required by the Attorney General is readily retrievable from the
ordinary business records of the registrant, and (3) shall be kept and
be available, for at least two years, for inspection and copying by
officers or employees of the United States authorized by the Attorney
General.'' Also, 21 U.S.C. 842(a)(5) provides: ``It shall be unlawful
for any person-- (5) to refuse or fail to make, keep, or furnish any
record, report * * * order or order form, * * * required under this
subchapter or subchapter II of this chapter.''
Federal recordkeeping regulations also exist, and 21 CFR 1304.04(a)
provides in relevant part: ``Every inventory and other records required
to be kept under this part shall be kept by the registrant and be
available, for at least 2 years from the date of such inventory or
records, for inspection and copying by authorized employees of the
Administration.'' Further, 21 CFR 1304.24 requires dispensers to
maintain records for each controlled substance reflecting, among other
things, the number of commercial containers received, the number of
units dispensed, with detailed information concerning the person to
whom it was dispensed, and information concerning any other method of
disposal of the substance. Finally, 21 CFR 1305.03 dictates that a DEA
Form 222 be used for each distribution of a controlled substance listed
in Schedule I or II, and 21 CFR 1305.13 requires that these order forms
be maintained separately from all other records and ``are required to
be kept available for inspection for a period of 2 years.''
Applicable State statues, specifically California Health and Safety
Code 11190, require practitioners such as the Respondent, who issue a
prescription, dispense, or administer Schedule II controlled
substances, to create and maintain a record which identifies the
patient, pathology, and purpose for each such transaction. Per Section
11191, the record is to be maintained for three years, and violations
may result in criminal prosecution. Further, Section 11192 states that
``proof that a defendant received or has had in his possession at any
time a greater amount of controlled substances than is accounted for by
any record required by law * * * is prima facie evidence of a
violation of [section 11190].''
Here, the Investigator obtained ten DEA 222 order forms showing
that a local pharmacy had filled the Respondent's orders for Demerol
and morphine, Schedule II substances, and shipped the order between
April 16, 1990, and July 23, 1990. Yet on April 24, 1992, the
Respondent was unable or unwilling to produce, or make ``readily
retrievable,'' the documentation required to be maintained by both
Federal and State law as to the DEA Form 222. Also, on the day of the
execution of the search warrant, the Respondent had controlled
substances at his office and home, and yet the investigators could not
find the required biennial inventory documentation, receipts for the
controlled substances, either bought by the Respondent or distributed
to the Respondent gratis as samples, or his dispensing documentation.
In fact, the Respondent conceded that he did not keep receipts for
samples of controlled substances that he had been given, substances
such as Xanax, Valium, and Halcion, despite the statutory and
regulatory requirements to maintain such records. The Respondent argued
in his post-hearing brief that the failure to find the required records
does not establish by a preponderance of the evidence that he had
violated the recordkeeping statutes. However, the Respondent conceded
the lack of biennial inventory records, receipts for samples of
controlled substances, and a lack of dispensing records meeting the
statutory requirements. Further, the evidence established that the
Respondent was unable to produce at least seven DEA Form 222's upon
request. In total, the preponderance of the evidence established that
the Respondent has failed to comply with applicable Federal and State
laws relating to controlled substances. Such a blatant disregard for
statutory provisions implemented to maintain a record of the flow of
controlled substances and to prevent the diversion of controlled
substances to unauthorized individuals, would justify revocation of the
Respondent's registration. See, e.g., George D. Osafo, M.D., Docket No.
92-75, 58 FR 37,508, 37,509 (1993) (noting ``that Respondent failed to
comply with numerous recordkeeping requirements and noted that it is a
registrant's responsibility to be familiar with the Federal regulations
applicable to controlled substances''). Again, the Deputy Administrator
agrees with Judge Tenney that the Government has established a prima
facie case under factor four.
As to factor five, ``such other conduct which may threaten the
public health or safety,'' the Deputy Administrator finds relevant Dr.
Ling's testimony that the Respondent's failure to maintain accurate,
current, and complete patient treatment records for Patient #1, a fact
conceded by the Respondent, Patient #2, and Patient #3, demonstrated a
lack of usual care and precaution required of a physician, especially
one issuing controlled substance prescriptions supposedly in response
to documented patient need. A threat to public health and safety is
created by such inaccurate documentation, for, as noted by Judge
Tenney, ``[i]n the event that another physician were required to treat
either [Patient I or Patient II], i.e., if the Respondent suddenly fell
ill, such treatment could be seriously impeded
[[Page 55051]]
by the Respondent's shoddy documentation.''
Further, the Respondent's lack of attention to warnings received by
him or his staff concerning Patient #3's conduct in forgoing controlled
substance prescriptions, coupled with his knowledge of that patient's
drug abuse history, creates grave doubt as to the Respondent's
prescription practices to known drug abusers. Also, the record lacks
any evidence to show that despite such warnings, the Respondent ceased
prescribing controlled substances to this patient until he obtained and
documented accurate information about the amounts of such substances
actually received by Patient #3 through the use of these forged
prescriptions. Such conduct shows a carelessness inappropriate for
continued registration. The Deputy Administrator finds unconvincing the
Respondent's arguments that he should not be accountable for the acts
of Patient #3, for it is the inaction of the Respondent which forms the
gravamen of the problem warranting revocation of the Respondent's
registration: specifically, his failure to insure staff members pass on
warnings from local pharmacists, and his failure to heed and respond to
written communication received from local pharmacists, especially
concerning a patient known to the Respondent as having a history of
drug addiction.
The Government filed exceptions, the Respondent filed a Response to
the Government's Exceptions, and the Deputy Administrator has reviewed
these filings, concluding that only limited comment is required. First,
as to the Respondent's exception about the Government's evidence and
argument regarding the clinical decisions to be made concerning Patient
#3 and referral to a pain clinic, the Deputy Administrator agrees with
the Respondent, and such evidence and argument as to the timing of
physician treatment decisions pertaining to Patient #3's referral have
not been a factor in resolving this case. However, this response does
not mitigate the fact that the Respondent was provided notice of
Patient's #3 forged prescriptions as early as January 1990, and yet he
did not act to investigate or otherwise curtail prescribing controlled
substances to this patient, or act to obtain information verifying the
exact amount of controlled substances in this patient's possession.
Next, the Respondent takes exception to the Government's inferring that
the Respondent should be responsible for the acts of Patient #1 in
informing the Respondent of a potential undercover investigation. The
Deputy Administrator agrees and has not relied upon this fact in
analyzing or reaching his decision. The Respondent goes on to note that
he has not been charged with illegally prescribing medication to
undercover agents and that there was no evidence introduced at the
hearing that he participated in such activity. Such a statement is
true, but the Deputy Administrator notes that such evidence is not
required to justify a revocation. See Richard A. Cole, M.D., Docket No.
90-53. 57 FR 8677, 8680 (1992) (noting that conviction is not the only
ground or factor justifying a revocation, but rather finding that the
``Respondent's experience in dispensing controlling (sic) substances,
his compliance with laws relating to these drugs[,] and other conduct
which may threaten the public health and safety may likewise support
the revocation of a registration''). The remainder of the Government's
exceptions and the Respondent's response are of record and require no
further discussion here.
In conclusion, Judge Tenney wrote that he found ``overwhelming
evidence that the Respondent is both a respected physician and member
of his community, and that he has served it faithfully for many years.
In light of this evidence, I am confident that the Respondent will
remedy the deficiencies in his practice.'' Although acknowledging the
Respondent's evidence of his lengthy contribution to the community and
his status as an admired physician, the Deputy Administrator
respectfully declines to adopt Judge Tenney's finding as to the
Respondent's future correction of the deficiencies in his practice, or
Judge Tenney's resulting recommendation that the Respondent's DEA
Certificate of Registration be suspended for one year. Rather, reviewed
in total, the Deputy Administrator finds that the Respondent's (1)
failure to acknowledge the need for adequate recordkeeping to insure
controlled substances are not diverted into the public forum for
illegitimate purposes, (2) lack of remorse concerning his own unlawful
recordkeeping and refill practices, (3) failure to act in a timely
manner upon, and to take responsibility for, receipt of information
given to him or to his staff concerning the forged prescriptions of
Patient #3 and (4) lack of acknowledgment that the inadequate treatment
record of Patient #1 could have ultimately jeopardized that patient's
welfare, lead to the conclusion that the revocation of the Respondent's
DEA Certificate of Registration is in the public interest. See Leo R.
Miller, M.D., Docket No. 86-93, 53 FR 21,932, 21,933 (1988) (noting
that the revocation of a DEA Certificate of Registration ``is a
remedial measure, based upon the public interest and the necessity to
protect the public from those individuals who have misused * * * their
DEA Certificate of Registration, and who have not presented sufficient
mitigating evidence to assure the Administrator that they can be
trusted with the responsibility carried by such a registration''). The
Deputy Administrator is aware of the substantial impact of the
revocation of a physician's controlled substance registration, and it
is not a remedy which he orders without due consideration of
alternatives. However, the Deputy Administrator is also charged with
protecting the public from the harm resulting from the improper
handling of legitimately produced controlled substances.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823 and 824, and 21 CFR 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration AD1048861, previously issued to Robert L.
Dougherty, Jr., M.D., be, and it hereby is, revoked. It is further
ordered that any pending applications for renewal of said registration
be, and hereby are, denied.
This order is effective November 27, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-26725 Filed 10-26-95; 8:45 am]
BILLING CODE 4410-09-M
