Opinion
No. 348668 No. 349754
05-14-2020
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Board of Medicine
LC No. 18-007018 LARA Bureau of Professional Licensing
LC No. 18-002838 Before: CAVANAGH, P.J., and SAWYER and RIORDAN, JJ. PER CURIAM.
In this consolidated appeal, respondent, Solomon Adu-Beniako, M.D., appeals as of right two administrative decisions: (1) the Board of Medicine's Disciplinary Subcommittee's (DSC) suspension of respondent's license to practice medicine for a minimum of six months and one day for violating MCL 333.16221(a) (violation of general duty) and MCL 333.16221(b)(i) (incompetence); and (2) The Board of Pharmacy Disciplinary Subcommittee's (DSC) revocation of respondent's controlled-substance and drug-control-location license for violating MCL 333.7311(1)(e) (failure to maintain effective controls against diversion) and MCL 333.7311(1)(f) (noncompliance with applicable laws). Because the challenged legal error was not substantial and because substantial evidence supports the Board of Pharmacy's findings and conclusions regarding respondent's pharmaceutical violations, we affirm.
I. BACKGROUND
A. ADMINISTRATIVE COMPLAINTS
Data from the Michigan Automated Prescription System (MAPS), a statewide database that collects data available to prescribers about all controlled substances dispensed, showed the frequency of respondent's prescriptions for hydrocodone with acetaminophen, promethazine with codeine, one-milligram alprazolam, and oxycodone. In filing two administrative complaints against respondent, petitioner, the Bureau of Professional Licensing within the Department of Licensing and Regulatory Affairs, produced aggregate MAPS data about respondent's total prescriptions, and it summarized the medical records of six of respondent's patients, BS, JJ, LL, MO, MB, and SK, to illustrate various allegations, including that respondent did not justify treatment decisions, did not adequately conduct imaging or testing to investigate patients' conditions, did not adequately monitor patients taking opioids, did not evaluate the continued need for opioid treatment, and did not document whether the treatment was effective. Petitioner further alleged that respondent often prescribed the same opioid medications at the same dosages to numerous patients, showing that he did not implement individualized treatment plans.
The Board of Medicine's complaint alleged that respondent violated MCL 333.16221(a) for violating a general duty, MCL 333.16221(b)(i) for incompetence, and MCL 333.16221(c)(iv) for prescribing a controlled substance without a legitimate medical purpose. MCL 333.16221 provides in pertinent part:
Subject to section 16221b, the department shall investigate any allegation that 1 or more of the grounds for disciplinary subcommittee action under this section exist, and may investigate activities related to the practice of a health profession by a licensee, a registrant, or an applicant for licensure or registration. The department may hold hearings, administer oaths, and order the taking of relevant testimony. After its investigation, the department shall provide a copy of the administrative complaint to the appropriate disciplinary subcommittee. The
disciplinary subcommittee shall proceed under section 16226 if it finds that 1 or more of the following grounds exist:"Incompetence" is defined as "a departure from, or failure to conform to, minimal standards of acceptable and prevailing practice for a health profession, whether or not actual injury to an individual occurs." MCL 333.16106(1).
(a) Except as otherwise specifically provided in this section, a violation of general duty, consisting of negligence or failure to exercise due care, including negligent delegation to or supervision of employees or other individuals, whether or not injury results, or any conduct, practice, or condition that impairs, or may impair, the ability to safely and skillfully engage in the practice of the health profession.
(b) Personal disqualifications, consisting of 1 or more of the following:
(i) Incompetence.
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(c) Prohibited acts, consisting of 1 or more of the following:
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(iv) Obtaining, possessing, or attempting to obtain or possess a controlled substance as defined in section 7104 or a drug as defined in section 7105 without lawful authority; or selling, prescribing, giving away, or administering drugs for other than lawful diagnostic or therapeutic purposes.
The Board of Pharmacy's complaint alleged that respondent violated MCL 333.7311(1)(e) for failing to maintain effective controls against diversion of controlled substances and MCL 333.7311(1)(f) for failing to prescribe medications in good faith, contrary to MCL 333.7405(1)(a). MCL 333.73311(1)(e) and (1)(f) provide:
(1) A license under section 7306 to manufacture, distribute, prescribe, or dispense a controlled substance may be denied, suspended, or revoked or a licensee may be fined, reprimanded, ordered to perform community service or make restitution, or placed on probation by the disciplinary subcommittee upon a finding that an applicant for licensure or a licensee is subject to any of the following:MCL 333.7405(1)(a) states:
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(e) The applicant or licensee has not maintained effective controls against diversion of controlled substances to other than legitimate and professionally recognized therapeutic, scientific, or industrial uses.
(f) The applicant or licensee is not in compliance with applicable federal, state, and local laws.
(1) A person shall not do any of the following:MCL 333.7333 sets forth the conditions for determining whether a controlled substance was prescribed in good faith. Indications that prescriptions for controlled substances were not made in good faith include, but are not limited to, the following factors:
(a) If the person is licensed by the administrator under this article, distribute, prescribe, or dispense a controlled substance in violation of section 7333.
(a) Lack of consistency in the doctor-patient relationship.Petitioner summarily suspended respondent's controlled-substance license and drug-control-location licenses. An administrative law judge (ALJ) subsequently dissolved the summary suspension in March 2018.
(b) Frequency of prescriptions for the same drug by 1 prescriber for larger numbers of patients.
(c) Quantities beyond those normally prescribed for the same drug.
(d) Unusual dosages.
(e) Unusual geographic distances between patient, pharmacist, and prescriber. [MCL 333.7333(1).]
B. TESTIMONY
The ALJ used Center for Disease Control (CDC) guidelines to evaluate respondent's prescription practices. The CDC advised clinicians to assess "risk factors for opioid-related harms" before prescribing opioid medications to patients. Clinicians should review a patient's history of controlled substance prescriptions using a state prescription drug monitoring program to see if patients were receiving opioid prescriptions. The CDC advised clinicians to discuss the risks and benefits of opioid treatment with patients before beginning treatment and periodically while continuing treatment. Opioids are assigned a morphine equivalency, called a morphine milligram equivalent (MME). The total assigned MME value is divided by the number of days a prescription covers to arrive at MME per day. The CDC identified 50 MMEs per day as a higher dosage and warned clinicians to assess the risks and benefits carefully when increasing dosage to 50 MMEs and to avoid increasing dosages to 90 MMEs per day, which is correlated with a risk of overdose.
David Nicolaou, M.D., an emergency physician who was qualified to testify as an expert in the general practice of medicine, and Janice Waldmiller, a pharmacist and a pharmacy specialist/investigator for petitioner who was qualified to testify as an expert in pharmacy, testified in support of the allegations in the complaints.
i. RESPONDENT'S GENERAL PRESCRIPTION PRACTICES
Waldmiller began investigating respondent's prescription practices in the spring of 2017 because of the number of respondent's prescriptions for hydrocodone with acetaminophen and promethazine with codeine, which are two highly abused and diverted drugs. The top five highly abused and diverted substances were 30-milligram oxycodone, hydrocodone products, one-milligram and two-milligram alprazolam, carisoprodol, and promethazine with codeine. Waldmiller stated that these statistics led her to question why so many of respondent's patients were receiving the same medications, particularly promethazine with codeine and hydrocodone with acetaminophen. During the investigation, respondent told Waldmiller that he prescribed the two medications together because many of his patients had coughs from smoking and from air pollution in Detroit. Waldmiller and Dr. Nicolaou both testified that promethazine with codeine is intended to treat coughs only in the short term. Short-term use meant less than two weeks, such as in connection with the flu. Waldmiller stated that other products can be used to treat coughs, and that it is important to understand the source of cough to treat it optimally. In addition, hydrocodone and promethazine with codeine both treated coughs the same way, so concurrent prescriptions were unnecessarily duplicative. Dr. Nicolaou also opined that promethazine with codeine offered no added benefit when prescribed in combination with hydrocodone. Respondent agreed that promethazine with codeine was appropriate for short-term use, but he believed that this guideline should not supersede a doctor's clinical judgment. Respondent testified that promethazine is an antihistamine that keeps the airway dry and open, while codeine suppresses cough by working on the mu two receptor in the lung, and hydrocodone treats pain by working on the mu one receptor associated with pain. Respondent further testified that considering the CDC guidelines, his practice was to prescribe a maximum of 30 MMEs per day to avoid the risk of overdose. Dr. Nicolaou and Waldmiller testified that limiting MMEs was not an effective control against diversion because low MME substances, such as promethazine with codeine, were still abused and diverted.
Krystalla Cross, a medical assistant in respondent's practice from September 2016 through October 2017, testified that several patients claimed to have a cough but did not sound authentic. Cross also stated that respondent saw multiple patients who were unrelated at one time. Cross also saw respondent write prescriptions before he saw the patient. Dr. Nicolaou testified that seeing groups of patients together outside the context of group therapy and writing prescriptions before seeing a patient fell below the standard of care. Respondent called three employees to rebut Cross's testimony. Akeela Noel, a medical assistant and the office manager, and Francina Kirk, a medical assistant, both denied that respondent saw patients in groups or wrote prescriptions before seeing patients. Uche Oboa, a nurse practitioner, also denied that respondent saw groups of patients together.
ii. RESPONDENT'S SIX PATIENTS IDENTIFIED IN THE COMPLAINTS
Waldmiller stated that the patients whose records were reviewed were selected on the basis of prescriptions for highly abused and diverted drugs. For example, 70% of respondent's prescriptions were for hydrocodone and promethazine with codeine, so patients receiving both prescriptions were randomly selected for review of their medical records. Waldmiller did not contact any of respondent's patients while investigating this case.
Dr. Nicolaou was concerned about the similarity of dosage and frequency of opioid prescriptions across patients with little variation, which Dr. Nicolaou interpreted as reflecting a lack of individualization of treatment plans and inadequate monitoring. Dr. Nicolaou also saw no indication that respondent used the MAPS reports he obtained for patients. For example, respondent did not re-evaluate treatment plans in light of MAPS reports showing red flags for abuse or diversion, which included obtaining multiple prescriptions from multiple providers. Respondent did not appear to be aware of the multiple prescriptions, which Dr. Nicolaou opined fell below the standard of care.
Respondent testified that he reviewed MAPS reports when he reviewed a patient's chart before every patient visit. Respondent claimed that if the MAPS report raised a red flag, he discussed it with the patient. Dr. Nicolaou opined that a doctor's notes should mention review of a MAPS report and how the information was considered. Respondent agreed that it was important to know what other controlled substances a patient was taking and if a patient saw multiple providers in a short period of time. Respondent stated that a patient could have legitimate reasons for seeing multiple prescribers and that the quantity of medication prescribed was more important than the number of prescriptions. In addition, he stated that patients sometimes went to different pharmacies because of varied insurance coverage or varying prices, and he asked patients why they filled prescriptions at multiple pharmacies when a MAPS report revealed that data, without accusing a patient of wrongdoing.
Respondent testified that he saw patient BS four times, in September 2016, October 2016, November 2016, and December 2016, after BS had been in a car accident in August 2016. MAPS data for patient BS showed 17 prescriptions from seven prescribers filled at eight pharmacies. Respondent stated that BS's MAPS data was consistent with the August 2016 car accident.
Respondent testified that he saw patient JJ in November 2016 and December 2016. MAPS data for patient JJ showed 43 prescriptions from 11 prescribers filled at 10 pharmacies. In 2016, JJ filled prescriptions written by a previous provider for oxycodone in February 2016, hydrocodone with acetaminophen in March 2016, oxycodone in July 2016, carisoprodol in July 2016, oxycodone in October 2016, and oxycodone in November 2016. Also, JJ filled a prescription for oxycodone in December 2016 from the previous provider after seeing respondent. Respondent prescribed JJ hydrocodone with acetaminophen at 20 MMEs per day and promethazine with codeine at 4.5 MMEs per day at each visit. Respondent reduced the quantity of hydrocodone tablets prescribed from 90 to 60, which was two tablets per day, to compensate for the morphine equivalency of the promethazine with codeine. The notes for both visits state that respondent discussed the risks and benefits of opioid treatment with JJ.
Respondent saw patient LL in September 2016, October 2016, and November 2016. MAPS showed that LL had 44 prescriptions from eight prescribers filled at 10 pharmacies. Before seeing respondent, LL received a prescription for alprazolam in March 2016, two prescriptions for oxycodone in April 2016; and prescriptions for acetaminophen with codeine and oxycodone in May 2016; acetaminophen with codeine in June 2016; alprazolam, hydrocodone with acetaminophen, and acetaminophen with codeine from two different prescribers in July 2016; and acetaminophen with codeine in August 2016. Respondent stated that he had run a MAPS report during the first visit, showing that LL was taking Tylenol with codeine, which respondent did not want him to take and which respondent discussed with LL before prescribing hydrocodone with acetaminophen and promethazine with codeine. Respondent prescribed hydrocodone with acetaminophen at the October visit. The notes for both visits stated that respondent discussed the risks and benefits of narcotics prescribed. Respondent confirmed that a urinalysis run on a sample obtained from LL on his last visit in November 2016 was negative for substances even though respondent had given LL a 30-day prescription for Norco in October 2016. Respondent stated that the substance would not necessarily show up on the urinalysis, depending on when the patient took the drug or other medications that can speed metabolism. Respondent testified that he would normally speak with patients about test results at their next visit, but he did not have that opportunity with LL because he did not return for any future visits.
Respondent saw patient MO in September 2016, October 2016, and December 2016. MAPS data showed that MO had 95 prescriptions from 10 prescribers filled at 14 pharmacies. According to the MAPS report, MO obtained from several previous providers prescriptions for acetaminophen with codeine, hydrocodone with acetaminophen, and alprazolam in October 2015; oxycodone and alprazolam in November 2015; promethazine with codeine, alprazolam, and oxycodone in December 2015; oxycodone with acetaminophen and alprazolam in January 2016; oxycodone and alprazolam in February 2016; acetaminophen with codeine in April 2016; acetaminophen with codeine in June 2016; oxycodone, alprazolam, and oxymorphone in July 2016; acetaminophen with codeine in August 2016; and lorazepam in September 2016. Respondent wrote MO prescriptions for hydrocodone with acetaminophen and promethazine with codeine, and he discussed with MO the risks and benefits of narcotics.
Respondent testified that he saw patient MB in September 2016, October 2016, November 2016, and December 2016. MAPS data showed that MB had 112 prescriptions from 13 prescribers filled at 17 pharmacies. Also, it showed that, in the year preceding her first prescription written by respondent, MB obtained prescriptions for alprazolam, acetaminophen with codeine, promethazine with codeine, and oxycodone from two different prescribers in August 2015; alprazolam, oxycodone, and promethazine with codeine in November 2015; hydrocodone with acetaminophen in January 2016; alprazolam, promethazine with codeine, and oxycodone in February 2016; alprazolam and hydrocodone with acetaminophen in March 2016; and buprenorphine in July 2016. Respondent saw the buprenorphine prescription, and he claimed that he spoke with MB about it at her first visit because it was a component of suboxone, which is used to treat addiction, but his notes did not reflect this conversation. It is not clear from respondent's testimony if he discussed with MB her prior prescriptions for promethazine with codeine. Respondent stated that he ordered drug testing for MB at the September visit, but she did not provide a sample for testing until November. The test results were negative. Respondent prescribed MB hydrocodone with acetaminophen at the September, October, and November visits, and he prescribed her promethazine with codeine at the October, November, and December visits. The notes state that he discussed the risks and benefits of opioid medications at the October, November, and December visits.
Respondent saw patient SK in September 2016 and October 2016. MAPS data showed that SK had 186 prescriptions from 15 prescribers filled at 21 pharmacies. In the year preceding his first visit with respondent, SK had more than 22 prescriptions for carisoprodol, 13 prescriptions for hydrocodone with acetaminophen, and 18 prescriptions for promethazine with codeine from at least five different providers. Respondent prescribed SK hydrocodone with acetaminophen at the first visit, and respondent's notes reflected a discussion about the risks of opioid treatment. Respondent stopped seeing SK after receiving a letter from petitioner notifying respondent that SK was seeing multiple doctors and advising respondent to refer SK to a pain clinic or addiction specialist.
iii. RESPONDENT'S 10 UNIDENTIFIED PATIENTS
Waldmiller testified about MAPS data covering a two-year period from May 2016 to May 2018 for a set of 10 unidentified patients whom respondent acknowledged were his patients. For the first patient, respondent prescribed hydrocodone-acetaminophen as well as promethazine with codeine every month from the end of October 2016 through the end of December 2017, before respondent's summary suspension on January 19, 2018. Respondent's next prescription for the patient was for hydrocodone with acetaminophen in April 2018 after the summary suspension was dissolved. Waldmiller questioned whether the patient needed the prescription after going without it for three months. The MAPS report showed that the patient had different providers and filled prescriptions at 10 different pharmacies, which were red flags for diversion and abuse.
Waldmiller testified that the second patient also had prescriptions for hydrocodone with codeine and promethazine with codeine written by respondent throughout 2017 and a three-month gap without receiving substances. In addition to the patient's use of multiple pharmacies to fill multiple prescriptions, Waldmiller noted that this patient was seeing other providers in addition to respondent from July 2017 to September 2017, raising the same concerns about the possibility of diversion and abuse.
Waldmiller testified that the third patient received prescriptions for hydrocodone with acetaminophen and promethazine with codeine from respondent from October 2016 through January 2018 and resumed receiving a prescription from respondent for hydrocodone with acetaminophen in April 2018. This patient saw another provider in February 2018, but respondent resumed prescribing hydrocodone with acetaminophen at a higher quantity and strength than the intervening provider.
Waldmiller testified that the fourth patient received prescriptions for hydrocodone with acetaminophen and promethazine with codeine from respondent from January 2017 through January 2018, and this patient saw other providers at the same time. The fifth patient received prescriptions from respondent for hydrocodone with acetaminophen and promethazine with codeine, in addition to carisoprodol, from January 2017 through January 2018, with a three-month gap with no prescriptions until April 2018, when respondent resumed prescribing a lower dosage of hydrocodone with acetaminophen.
The sixth patient received prescriptions from respondent for hydrocodone with acetaminophen and promethazine with codeine from November 2016 through December 2017. After a three-month gap, respondent resumed prescribing hydrocodone in April 2018.
Waldmiller testified that respondent wrote prescriptions for hydrocodone with acetaminophen and promethazine with codeine for the seventh patient from September 2016 through December 2017 and resumed writing a hydrocodone with acetaminophen prescription in April 2018. This patient was prescribed a controlled substance from another provider in January 2018.
Waldmiller stated that the eighth patient received prescriptions for hydrocodone with acetaminophen and promethazine with codeine from respondent from October 2016 through January 2018, a prescription from another provider in February 2018, and a prescription for hydrocodone with acetaminophen from respondent at the end of March 2018. The ninth patient received prescriptions from respondent for hydrocodone with acetaminophen and promethazine with codeine from December 2016 through January 2018, and received the next prescription for hydrocodone with acetaminophen from respondent in April 2018 after a three-month gap. This patient also had prescriptions filled at seven different pharmacies in two years.
Waldmiller stated that the final patient received prescriptions for hydrocodone with acetaminophen and promethazine with codeine from September 2016 through December 2017, no prescriptions for three months, and a prescription for hydrocodone with acetaminophen in April 2018. This patient had prescriptions filled at five different pharmacies.
Waldmiller testified that respondent had not prescribed promethazine with codeine since the dissolution of the summary suspension in March 2018. Between the March 23, 2018 dissolution and August 2018, a MAPS report run by Waldmiller showed that prescriptions for hydrocodone with acetaminophen constituted 87% of respondent's total prescriptions, which was concerning to Waldmiller because it raised the question whether respondent was providing properly individualized treatment. Dr. Nicolaou echoed this concern. Waldmiller stated that there were dozens of different pain medications and that pain specialists typically prescribed a wider range of pain medications than respondent. Respondent stated that doctors often prescribe similar medications that they are comfortable prescribing.
C. ALJ'S PROPOSAL FOR DECISION
The ALJ issued a proposal for decision, in which the ALJ found no support for general allegations that respondent's notes reflected inadequate diagnoses, monitoring, and treatment of patients except in relation to risk monitoring and concurrent prescriptions for benzodiazepines and opiates. The ALJ found that respondent did not adequately justify concurrent prescriptions for benzodiazepines and opiates given to two patients on five occasions, contrary to the CDC guidelines' recommendation to avoid prescribing the two substances together. The ALJ further found that respondent did not consider or discuss with MB, JJ, SK, LL, and MO the risk of abusing or diverting opioids, in violation of CDC guidelines. The ALJ found no support for the allegation that respondent was diverting controlled substances to the illegal market. In relation to this finding, the ALJ declined to consider the uncorroborated MAPS reports showing aggregated data for all of respondent's prescriptions, noting that petitioner did not investigate the information or interview any of respondent's patients. The ALJ considered only the MAPS data for the six individual patients whose charts were introduced into evidence.
i. BOARD OF MEDICINE CASE
In the Board of Medicine case, the ALJ concluded that respondent violated MCL 333.16221(a) and (b)(i), as alleged in Counts 1 and 2, but not MCL 333.16221(c)(iv). The ALJ found the violations supported by evidence showing that respondent prescribed an opiate and a benzodiazepine concurrently without adequate justification and by prescribing opioids to five patients without addressing risk factors for opioid-related harms as evidenced by information in their MAPS reports. In reaching this conclusion, the ALJ summarized the legal standard as follows:
It is impossible to discern a meaningful difference between (1) violation of general duty, (2) negligence, (3) failure to exercise due care, and (4) failure to conform to minimal standards of acceptable and prevailing practice. The verbiage is different, but all describes the same thing - breach of duty. Counts 1 and 2 of the medical complaint are essentially the same breach-of-duty charge, and this opinion treats them as a single charge.The Board of Medicine DSC accepted the ALJs findings of fact and conclusions of law and ordered the suspension of respondent's license to practice medicine for a minimum of six months and one day.
ii. BOARD OF PHARMACY CASE
In the Board of Pharmacy case, the ALJ concluded that respondent violated MCL 333.7311(1)(e) by failing to maintain effective controls against diversion when he prescribed opioids to five patients without addressing opioid-related risk factors. The ALJ concluded that petitioner did not establish that respondent violated MCL 333.7311(f) because the evidence did not show that respondent acted in bad faith, in violation of MCL 333.7333(1) and MCL 333.7405(1)(a).
The Board of Pharmacy DSC accepted in part and rejected in part the ALJ's proposal for decision. It accepted the conclusion that respondent failed to maintain adequate controls against diversion, in violation of MCL 333.7311(1)(e), but rejected the conclusion that respondent had prescribed medication in good faith and had not violated MCL 333.7311(1)(f). The DSC found that the frequency of respondent's prescriptions for hydrocodone with acetaminophen and promethazine with codeine for a "large number of patients" was not in good faith. It further noted that respondent put five patients, MB, JJ, SK, LL, and MO, on opioid medications without discussing the risk factors for opioid-related harms shown in their MAPS reports. In addition, the similarity in respondent's prescriptions showed a lack of individualized treatment. The DSC relied on the testimony of Cross and Dr. Nicolaou, in addition to other patients' records, showing prescriptions for hydrocodone with codeine and promethazine with codeine, which respondent acknowledged. Thus, the DSC ordered respondent's controlled-substance and drug-control-location licenses revoked.
II. DISCUSSION
A. STANDARD OF REVIEW
"Rulings by disciplinary subcommittees of regulated professionals are reviewed on appeal solely under Const 1963, art 6, § 28." Bureau of Prof Licensing v Butler, 322 Mich App 460, 464; 915 NW2d 734 (2017). Judicial review of administrative decisions "shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record." Const 1963, art 6, § 28. "When reviewing whether an agency's decision was supported by competent, material, and substantial evidence on the whole record, a court must review the entire record and not just the portions supporting the agency's findings." Dep't of Community Health v Risch, 274 Mich App 365, 372; 733 NW2d 403 (2007). "[A] reviewing court may not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record." Dep't of Licensing & Regulatory Affairs v Gordon, 323 Mich App 548, 559; 919 NW2d 77 (2018) (quotation marks and citation omitted). "Substantial evidence means evidence that a reasonable person would accept as sufficient to support a conclusion. This may be substantially less than a preponderance of evidence, but does require more than a scintilla of evidence." Butler, 322 Mich App at 465 (quotation marks and citation omitted). "Deference must be given to an agency's findings of fact, especially with respect to conflicts in the evidence and the credibility of witnesses." Huron Behavioral Health v Dep't of Community Health, 293 Mich App 491, 497; 813 NW2d 763 (2011) (citations omitted). "Moreover, an appellate court must generally defer to an agency's administrative expertise." Dep't of Community Health v Anderson, 299 Mich App 591, 598; 830 NW2d 814 (2013).
B. LEGAL STANDARD
Respondent argues that the ALJ made a substantial and material legal error by collapsing together the legal standards governing violation of breach of duty and incompetence, and treating the two charges as one, which he maintains fatally infected the ALJ's decision. Although the ALJ's statement that the legal standards were indistinguishable was technically incorrect, we disagree that this error was substantial and material.
MCL 333.16221(a) authorizes disciplinary action for "a violation of general duty, consisting of negligence or failure to exercise due care . . . , whether or not injury results . . . ." "Negligence is a well-recognized legal concept which describes conduct that falls below a standard of reasonable or due care. A failure to exercise due care contemplates an abdication of responsibilities or carelessness in executing one's duties." Sillery v Bd of Med, 145 Mich App 681, 686; 378 NW2d 570 (1985).
MCL 333.16221(b)(i) authorizes disciplinary action for incompetence. "Incompetence" is defined as "a departure from, or failure to conform to, minimal standards of acceptable and prevailing practice for a health profession, whether or not actual injury to an individual occurs." MCL 333.16106(1). In Gordon, 323 Mich App at 557, this Court determined what standard of care to apply to evaluate whether the respondent was incompetent under MCL 333.16221(b)(i), which was the only charge at issue in that case. The Court first concluded that the applicable standard of care was that of a "psychologist" rather than a "counselor" because the respondent practiced as a psychologist even though he was employed as a counselor. Id. at 561. The Court next determined that it was not necessary to establish the standard of care because the respondent's conduct of allowing a patient to live with him was "so lacking of professional care" as to defy a commonsense standard of care. Id. at 562-563.
The concepts of breach of duty and incompetence are similar but legally distinct. Accordingly, the ALJ erred by stating that they were indistinguishable from each other. However, the ALJ's statement is better understood to mean that the facts supporting both charges are the same and therefore it does not reflect a substantial and material legal error. Notably, this Court has considered the charges of MCL 333.16221(a) and (b)(i) together and concluded that the respondent violated both sections on the same factual basis. Anderson, 299 Mich App at 597. Therefore, the ALJ did not legally err by considering the charges together.
Respondent cites Hegadorn v Dep't of Human Servs Director, 503 Mich 231; 931 NW2d 571 (2019), to argue that a misapplication of the statute requires reversal. In Hegadorn, 503 Mich at 268-269, our Supreme Court determined that the agency legally erred in its analysis of whether the trusts at issue were countable assets for the purpose of determining Medicaid eligibility. The Court declined to rule on the parties' Medicaid eligibility and remanded the individual cases to the agency for a determination regarding Medicaid eligibility because the original decisions relied only on the erroneous analysis and "may have forgone consideration of alternative avenues of legal analysis." Id. at 269. This case is more akin to Consumer & Indus Servs v Greenberg, 231 Mich App 466, 472; 586 NW2d 560 (1998), in which this Court ruled that the absence of adequate evidence to support one charge under MCL 333.16221 was harmless error when the evidence supported a violation of another section of MCL 333.16221 that authorized the same punishment. Respondent raises no challenge to the factual basis for the ALJ's conclusion that respondent violated both MCL 333.16221(a) and (b)(i). By failing to argue that the facts supported neither a violation of breach of general duty, MCL 333.16221(a), nor incompetence, MCL 333.16221(b)(i), respondent has not established that the ALJ's treatment of the two charges as one was an error requiring reversal.
Additionally, the ALJ's analysis was consistent with the use of the CDC guidelines as a benchmark to evaluate respondent's conduct. Both MCL 333.16221(a) and (b)(i) require a standard against which to evaluate respondent's conduct. In this case, both parties agreed to the ALJ's reliance on the CDC guidelines. The guidelines advise clinicians to evaluate the benefits and risks for patients before prescribing opioid medications and regularly thereafter, to review patients' histories of controlled substance use "when starting opioid therapy for chronic pain," and to avoid prescribing "opioid pain medication and benzodiazepines concurrently whenever possible." These guidelines informed the ALJ's determinations that respondent did not adequately justify concurrent prescriptions for hydrocodone and benzodiazepines and did not adequately address the risk of abuse or diversion with patients who were previously given several opioid prescriptions by several doctors. Respondent raises no challenge to the facts supporting the charges in challenging the suspension of his medical license, and respondent's challenge to the ALJ's legal analysis does not require reversal. Therefore, we affirm the Board of Medicine DSC's final order.
C. FAILURE TO MAINTAIN EFFECTIVE CONTROLS AGAINST DIVERSION
Respondent argues that the agency ignored evidence showing that respondent controlled against diversion by prescribing no more than 30 MMEs per day, by ordering testing for patients, and by running MAPS reports on every patient. None of these points warrant reversal. First, respondent did not address the red flags present in MAPS reports with the five patients identified. Second, drug screens for two patients were inexplicably negative, and respondent did not explain whether or how he used these results to protect against diversion. Third, respondent managed the risk of overdose by limiting MMEs, but respondent did not establish that this practice had any effect on the possibility of diversion.
The ALJ concluded that respondent failed to maintain adequate controls against diversion, in violation of MCL 333.73311(1)(e), because he gave five patients, MB, JJ, SK, LL, and MO, opioid prescriptions without addressing "obvious risk factors for opioid-related harms" apparent in their MAPS reports. Even crediting respondent's testimony that he ran a MAPS report before every patient visit, this testimony does not challenge the conclusion that the record contains no indication that respondent discussed the risk factors apparent in these reports with the five patients identified.
Beginning with MB, respondent testified that he discussed her prior prescriptions for buprenorphine at her first visit in September 2016, but he expressed no interest in any of her other prior prescriptions from previous providers in the preceding year, which included prescriptions for hydrocodone with codeine, oxycodone, and alprazolam, all of which are highly abused and diverted. For example, he did not answer definitively whether he discussed with her the 19 previous prescriptions for promethazine with codeine she had obtained since 2012, but he gave her prescriptions for it at her second, third, and fourth visits in October, November, and December 2016. Although the notes stated that they discussed the risks and benefits of the narcotics prescriptions, the notes did not mention MB's prescriptions for controlled substances obtained before seeing respondent. Respondent testified that he had a legitimate, medical reason for prescribing promethazine with codeine, but this explanation does not address the absence of a discussion with MB about the risk of abuse or diversion, which was indicated given her prescription history.
Respondent testified that he saw JJ in November 2016 and December 2016 and that the MAPS report was run in April 2017 when petitioner requested patient charts from respondent. JJ's MAPS report showed that, before seeing respondent, he had a prescription for carisoprodol in July 2016 and three prescriptions for oxycodone in July 2016, October 2016, and November 2016. Even crediting respondent's testimony that he ran a MAPS report before every visit, his testimony showed no interest in JJ's prior prescriptions for carisoprodol and oxycodone, two highly abused and diverted substances, before respondent prescribed JJ hydrocodone with acetaminophen and promethazine with codeine.
SK had obtained numerous prescriptions for carisoprodol, hydrocodone with acetaminophen, and promethazine with codeine in the year before his first visit with respondent. Respondent testified that he prescribed SK hydrocodone on SK's first visit, but not his second visit, and the notes from both visits state that respondent discussed the risks of opioid treatment with SK.
Respondent acknowledged that LL had prior prescriptions for acetaminophen with codeine, but he addressed those prior prescriptions only in terms of replacing them with a different medication given that respondent did not like acetaminophen with codeine. Instead, respondent prescribed hydrocodone with acetaminophen and promethazine with codeine. Respondent's notes stated that respondent discussed the risks of the new medications with LL.
MO's MAPS report showed multiple prescriptions for controlled substances containing codeine, hydrocodone, oxycodone, and alprazolam prescribed in some combination nearly every month in the year preceding MO's first visit with respondent. Respondent confirmed that he ran MAPS reports for the first two of three visits, and he wrote MO prescriptions for hydrocodone and for promethazine with codeine. The notes also reflect a discussion of the risks of opioid treatment at MO's first and third visits.
These records all suffer from the same deficiency. Each patient had previously obtained prescriptions from multiple providers for various highly abused and diverted substances. Although respondent testified that he reviewed MAPS before seeing each patient, his notes contained no indication that he discussed patients' prescription histories with them, even though his notes stated that they discussed the risks of opioid treatment. Nor did respondent testify that he discussed with any of these patients their prior prescription histories and the risk of abuse or diversion. Respondent's testimony that he reviewed the MAPS reports before every visit does not establish otherwise. In sum, these five patient records support the ALJ's findings regarding the inadequacy of respondent's discussions with patients about the risk of diversion on the basis of the MAPS data.
Respondent testified about ordering drug screens for patients, but the evidence does not show that he used the results of this testing to assess or discuss the patients' risk factors for abuse or diversion. For example, respondent ordered urine testing for MB at her first visit, but she did not provide a sample until a subsequent visit, and it was negative. Respondent testified that he generally discussed lab results with patients at their next visit, but he did not testify that he did so with MB. Respondent also ordered urine testing for LL on LL's last visit. The results were negative for all substances. Respondent offered a hypothetical explanation for negative results, but he was not able to discuss the results with LL, who did not return to respondent's office. LL's failure to return after submitting to a drug screen lends support to the conclusion that could be drawn from LL's MAPS report that LL was "doctor shopping" to obtain controlled substances for diversion because LL would have known that the drug screen would be negative. In short, respondent did not establish that he used drug screens to control against diversion when the record contains no indication that he discussed results with patients.
Respondent testified that he prescribed a maximum of 30 MMEs per day to avoid the risk of overdose. This practice assumes that respondent's patients were taking medication only as prescribed. Additionally, this rationale does not address concerns about diversion. Dr. Nicolaou testified that low MMEs was not a control against diversion because even low MME drugs, such as cough syrup with codeine, were abused and diverted. Waldmiller echoed that promethazine with codeine was highly abused and diverted, even with its low MME. Therefore, respondent did not establish that limiting MMEs bore any relevance to controlling against diversion.
Respondent argues that hydrocodone and codeine work differently in the body's pain receptors, contrary to Dr. Nicolaou's testimony. Respondent testified that promethazine is an antihistamine that opens and dries the airway, while codeine treats cough by acting on the mu two receptor in the lung, and hydrocodone treats pain by working on the mu one receptor associated with pain. Respondent's explanation for how each chemical operates does not address Dr. Nicolaou's testimony that combining hydrocodone with acetaminophen and promethazine with codeine increases the risk of respiratory failure. Waldmiller also testified that different products can be used to treat coughs, depending on the source of the cough, and that prescribing hydrocodone with acetaminophen in conjunction with promethazine with codeine to treat cough was duplicative. Further, respondent's argument again assumes that patients are only taking the medications he has prescribed in the manner prescribed. In light of the individual MAPS data about the five patients previously discussed, it is not clear how respondent's testimony about the mu receptors undermines the ALJ's conclusion that the record contains no indication that respondent discussed patients' prescription histories with them.
Respondent notes that Dr. Nicolaou was an emergency medicine physician who was not board-certified in addiction or pain medicine and had little contact with addiction patients, unlike respondent. Respondent does not challenge Dr. Nicolaou's expert qualification to testify about the practice of medicine in general. Moreover, the ALJ found in respondent's favor on several practices that Dr. Nicolaou criticized. For example, the ALJ rejected petitioner's allegations that respondent should have taken an incremental approach to prescribing opioids, that respondent should have started treatment with nonopioid therapy, that respondent's notes inadequately summarized patients' diagnoses and treatment plans, and that respondent's use of templates to fill in notes evidenced a lack of individualized treatment. The ALJ's findings regarding respondent's failure to maintain effective controls against diversion largely came from the MAPS data, introduced through Waldmiller's testimony, and from respondent's testimony about that data and the patients' medical records. Respondent has not identified a shortcoming in the agency's findings related to Dr. Nicolaou's expertise.
In sum, respondent has not established that competent, material, and substantial evidence did not support the ALJ's conclusion that respondent did not maintain effective controls against diversion because respondent did not address the prescription histories of the five patients.
D. FAILURE TO PRESCRIBE CONTROLLED SUBSTANCES IN GOOD FAITH
Respondent argues that substantial evidence does not support the DSC's conclusion that respondent was not writing prescriptions in good faith because the DSC erroneously relied on uncorroborated MAPS reports to find that respondent frequently prescribed hydrocodone with acetaminophen and promethazine with codeine to a large number of patients. Petitioner counters that the DSC referred only to the MAPS reports for respondent's acknowledged patients. Petitioner is partially incorrect, but the DSC's finding regarding a large number of patients does not require reversal because it is consistent with record evidence.
Petitioner is correct that the DSC relied on the MAPS data for respondent's acknowledged patients, but the DSC drew a broader conclusion from this data. Nonetheless, respondent does not identify evidence contradicting the broader conclusion. At the merits hearing, petitioner introduced the records of the 10 unidentified patients whom respondent acknowledged were his patients. This data showed that respondent prescribed all 10 of them hydrocodone with acetaminophen and promethazine with codeine from the fall of 2016 through 2017 and in early 2018. Respondent admitted that this data was consistent with his general practice. Specifically, he testified that he typically prescribed eight ounces of codeine cough syrup and 60 tablets of Norco, rather than 90, when he prescribed them concurrently. The DSC relied on this data and on respondent's admission regarding his typical practice to extrapolate beyond the 10 patients to a "large number of patients." Waldmiller testified that MAPS data showed that 87% of respondent's prescriptions between March 2018 and August 2018 were for hydrocodone with acetaminophen. Waldmiller and Dr. Nicolaou both testified that this frequency raised the question whether respondent was providing appropriately individualized treatment. Waldmiller additionally stated that "[d]ozens" of pain medications were available and that pain specialists typically prescribed a wider range of pain medications than respondent prescribed. Respondent's primary challenge to this data was to argue that some of the prescriptions were fraudulently attributed to him, and he offered an example of one patient who received prescriptions for hydrocodone with acetaminophen and promethazine with codeine wrongfully attributed to respondent. Respondent also stated that doctors often prescribe similar medications that they are comfortable prescribing. That is, respondent did not contest the overarching concern that he frequently prescribed hydrocodone with acetaminophen and that the frequency of this prescription was inconsistent with individualized treatment. For example, beyond arguing that some of the prescriptions were fraudulent and that he modulated the effect of concurrent prescriptions by reducing the quantity of hydrocodone with acetaminophen, respondent did not claim that he prescribed other substances. Additionally, the DSC did not rely on the exact statistic of 87% introduced by petitioner, reflecting an acknowledgment that some of the prescriptions attributed to respondent were fraudulent. This data, in combination with respondent's admission that it reflected his general practice, supports the DSC's conclusion that respondent frequently prescribed the same substances to many patients.
Respondent challenges the MAPS statistics by arguing that they included prescriptions for oxycodone, oxymorphone, and two-milligram alprazolam, which he did not write. Respondent presented the same defense throughout the administrative hearing, and petitioner agreed that these prescriptions should not be attributed to respondent. Neither the ALJ's findings nor the DSC's findings referred to these prescriptions. Therefore, respondent has not identified a flaw in the data or the conclusions reliant on this data from MAPS warranting reversal.
Respondent challenges the DSC's reliance on Cross's testimony regarding fake coughs. Cross also testified that respondent saw patients in groups and wrote prescriptions before seeing patients. Respondent sought to rebut this testimony with the testimony of three of his current employees who testified that he did not see patients in groups or write out prescriptions beforehand. However, "resolving conflicts in the evidence by making credibility determinations is not a basis for reversal of an administrative action." Anderson, 299 Mich App at 599. Nor does respondent challenge on appeal Cross's testimony about seeing patients in groups or writing prescriptions in advance, practices that Dr. Nicolaou testified fell below the standard of care. Even if the DSC should have disregarded Cross's testimony about fake coughs, respondent's other practices described by Cross were rightfully concerning.
In sum, the Board of Pharmacy DSC's conclusion regarding respondent's general prescription practice was supported by competent, material, and substantial evidence on the whole record.
Affirmed.
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Michael J. Riordan
In re Solomon Adu-Beniako, MD, unpublished order of the Court of Appeals, entered August 2, 2019 (Docket Nos. 348668 and 349754).