Pastorek v. Louisiana Bd. of Med. Examiners
| Decision Date | 17 December 2008 |
| Docket Number | No. 2008-CA-0789.,2008-CA-0789. |
| Citation | 4 So.3d 833 |
| Parties | Joseph G. PASTOREK, II M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS. |
| Court | Court of Appeal of Louisiana — District of US |
Kyle Schonekas, William P. Gibbens, Schonekas Winsberg Evans & McGoey, L.L.C., New Orleans, LA, Joseph G. Pastorek II, Dr. Joe Pastorek, LLC, Slidell, LA, for Plaintiff/Appellant.
George M. Papale, Hammond, LA, for Defendant/Appellee.
(Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
[1]
This appeal is from the trial court judgment court affirming a ruling issued on November 25, 2007, by the Louisiana State Board of Medical Examiners (the "Board") that imposed disciplinary action on Dr. Joseph G. Pastorek for numerous violations of the "Pain Management Rules," 45 La. Adm.Code §§ 6915-6923, relating to prescriptions of controlled substances for 16 different patients. After de novo review of the record in light of the applicable law and arguments of the parties, the judgment is affirmed.
On May 5, 2006, the Board subpoenaed the records of 62 patients of Dr. Pastorek. Based on 16 of these patient files, the Board filed a formal Administrative Complaint, In the Matter of Joseph G. Pastorek, II, M.D., (certificate No. 14420), 07-A-005, on February 13, 2007, charging Dr. Pastorek with violations of the Medical Practice Ace, La.Rev.Stat. §§ 37:1261 et seq., and, in particular, the Pain Management Rules. During a two-day Administrative Hearing in September 2007, a panel of four physician members of the Board reviewed the medical records and questioned Dr. Pastorek, as well as a DEA agent and the mother of another of Dr. Pastorek's patients pertaining to an earlier
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complaint filed with the Board which resulted in a Consent Judgment. Dr. Pastorek presented 2 of the 16 patients as his own witnesses, as well as Dr. Frank Fisher, a California physician who opined that Dr. Pastorek's treatment fell within the standard of care as defined by the pertinent medical literature on the narcotic treatment of patients with chronic pain.
The Board issued its ruling on November 25, 2007, finding that Dr. Pastorek's practice of medicine failed to satisfy the prevailing and usually accepted standards of medical care in Louisiana and that he had prescribed controlled substances without legitimate medical justification. Accordingly, the Board suspended Dr. Pastorek's license for three years, imposed a fine of $5000.00, and prohibited Dr. Pastorek from practicing pain medicine for the remainder of his career.
In his request of judicial review, Dr. Pastorek claimed that the Board erred in relying on an outdated version of the Pain Rules, failing to prove that Dr. Pastorek did not meet the appropriate standard of care, and in offering no rebuttal to Dr. Fisher's testimony that the Pain Rules were not synonymous with the standard of care or to Dr. Fisher's opinion that Dr. Pastorek complied with the standard of care. Dr. Pastorek also alleged that the Pain Rules were unconstitutionally vague, the penalty was too harsh, and that the Board improperly quashed a subpoena, made findings not alleged in the complaint, and arbitrarily and capriciously denied his request for a public hearing. After a hearing on March 7, 2008, the district court affirmed the Board's decision in all respects and denied Dr. Pastorek's request for a stay order. Shortly thereafter, the district judge issued a written judgment, finding that the Board's ruling was supported by a preponderance of the
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evidence and did not prejudice the rights of Dr. Pastorek. Dr. Pastorek appeals this decision.
On appeal, the appellant assigns as error: (1) the Board's application of an outdated version of the Pain Rules; (2) the Board's quashing of a subpoena for Dr. Cecilia Mouton, the Board's Director of Investigations; (3) the Board's failure to prove that Dr. Pastorek did not meet the standard of care for pain management; (4) the violation of Dr. Pastorek's due process rights by penalizing him for conduct not charged in the Administrative Complaint; (5) the unconstitutional vagueness of the Pain Rules or, alternatively, the Board's failure to prove Dr. Pastorek's assessments of drug abuse were unreasonable or that his physical examinations were inappropriate.
The imposition of an administrative sanction is in the nature of a disciplinary measure and we will not set aside an administrative agency's decision to impose a particular sanction unless that decision is arbitrary, capricious or an abuse of discretion. Armstrong v. La. Bd. Of Med. Examiners, 03-1241, p. 10 (La.App. 4 Cir. 2/18/04), 868 So.2d 830, 838. Pursuant to La.Rev.Stat. 49:956(4), an "agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence" and, accordingly, upon review of administrative actions, we recognize "the strong presumption of validity and propriety in such administrative actions where casting judgment upon the professional behavior of a fellow member of a profession is a matter peculiarly within the expertise of an agency composed of members of that profession." Armstrong, at pp. 10-11, 868 So.2d at 838 (citation omitted). Thus, given the
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jurisprudential presumption of correctness of an agency's action, the appellant has the burden of proving the record contains no facts to establish the validity of the charges levied against him. See Armstrong, supra.
The appellant claims that although the Pain Rules were significantly amended in April 2000, and the Administrative Complaint properly cited the current version of the Pain Rules, the Board's ruling cites the earlier 1997 version of the rule that required a full medical history and complete physical exam prior to prescribing narcotic pain medication. The appellee responds that the citation to the earlier version of the rule in its opinion was inadvertent and that the Board did not, in fact, require the higher standard of a "complete" physical examination in any of its specific findings.
The current version of the pertinent rule, as amended in April 2000, provides that the evaluation of a patient should include the relevant medical, pain, alcohol and substance abuse histories and an appropriate physical examination. La. 46:6921(A)(1). Although the Board's ruling does, in fact, recite the earlier version of the rule, requiring a full history, including complete medical, pain, alcohol and substance abuse histories ..., "a review of the specific findings as to each of the sixteen patients that the Board's ruling is based upon supports the Board's claim that although the older version of the rule was inadvertently recited, its decision was based on the current version of the rule. Specifically, the Board made the following findings with respect to the appellant's examination of specific patients:
Thus, there is nothing in the Board's ruling to support the appellant's claim that the Board required the more stringent standard of "a complete examination."
Likewise, a review of the Board's ruling provides no support for the appellant's claim that the Board imposed a higher standard on him, requiring him to offer alternative treatment, consult with one or more specialists for additional evaluation and/or treatment, and maintain a patient's entire medical history.
Finally, the appellant argues that the district court accepted new testimony at the appellate level pursuant to counsel's explanation at the hearing that, in effect, he could only assume that the incorrect version of the rule appeared in the preamble of the Board's ruling because "somebody's got it in the word processor somewhere and it plugged in the prior-to-the revision rules." The appellant's argument that an attorney's speculative comment in oral argument is substantive new testimony requiring reversal of the trial court judgment is novel but meritless.
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Next, the appellant claims that the Board erred in quashing a subpoena for Dr. Cecelia Mouton, the Board's Director of Investigations. The appellant argues that because the Board had dismissed a similar complaint against him in July 2005 pursuant to an investigation of that complaint, he should have been allowed to question Dr. Mouton as to the basis of the 2005 investigation and the Board's evaluation and dismissal of the complaint.
Dr. Mouton was not the Director of Investigations in 2005 when the earlier complaint was dismissed and had no first hand knowledge of the appellant's interactions with the patients who formed the basis of the administrative complaint at issue. Accordingly, the Board's decision to quash the subpoena was neither arbitrary nor capricious.
This assignment of error is without merit.
The appellant argues that the Board failed to prove that he did not meet the standard of care for pain management because the Board did not rebut his expert witness's testimony pertaining to the applicable standard of care.
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Jarrott v. Louisiana Bd. of Med. Examiners
... ... Pastorek v. Louisiana State Board of Medical Examiners, 08-0789, p. 3 (La.App. 4 Cir. 12/17/08), 4 So.3d 833, 836, citing Armstrong, supra at pp. 10-11, 868 So.2d at 838. Furthermore, given the presumption of correctness, the appellant, in this case Dr. Jarrott, bears the burden of proving that the ... ...