Colorado State Bd. of Medical Examiners v. Davis, 93CA0911

• Decision Date: 09 March 1995
• Docket Number: No. 93CA0911,93CA0911
• Citation: 893 P.2d 1365
• Parties: , 4 A.D. Cases 316, 9 A.D.D. 141, 6 NDLR P 224 COLORADO STATE BOARD OF MEDICAL EXAMINERS, Complainant-Appellee, v. Roger Woods DAVIS, Respondent-Appellant. . III
• Court: Colorado Court of Appeals

Page 1365

893 P.2d 1365

63 USLW 2624, 4 A.D. Cases 316, 9

A.D.D. 141, 6 NDLR P 224

COLORADO STATE BOARD OF MEDICAL EXAMINERS, Complainant-Appellee, v. Roger Woods DAVIS, Respondent-Appellant.

No. 93CA0911.

Colorado Court of Appeals,

Div. III.

March 9, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Andrew D. Stone, Asst. Atty. Gen., Denver, for complainant-appellee.

Montgomery Little & McGrew, P.C., David A. Burlage, Christopher B. Little, Englewood, for respondent-appellant.

Opinion by Judge DAVIDSON.

Respondent, Roger Woods Davis, appeals from the order of the Colorado State Board of Medical Examiners (Board) revoking his license to practice medicine. We affirm.

Respondent first became addicted to drugs in the late 1960s during his medical residency when, suffering from a sleep disorder, he began self-administration of sodium pentothal, a barbiturate, taken from an anesthesia preparation room. He continued this practice on a regular basis for nearly three years until his use of barbiturates was discovered and he was taken by police to a hospital and detoxified.

After two subsequent hospitalizations for depression, respondent resigned his residency and entered private practice in Utah. Although he did not obtain medical attention for his continuing sleep disorder, he sought relief by use of tranquilizers, antihistamines, and muscle relaxants.

In 1975, respondent began chronic use of the narcotic Demerol in connection with the sleep ailment. In March 1975, after learning that he had been reported to the Utah medical licensing authority, he took an accidental overdose of Valium, Benadryl, and morphine, and again was hospitalized.

The licensing authority, after disciplinary hearing, found that respondent's self-administration of this drug overdose impaired his ability to practice medicine, and that respondent had repeatedly treated patients for non-existent fractures and had accepted insurance payments for such treatments.

Consequently, respondent's medical license was placed on probation for a minimum of five years conditioned on monthly psychiatrist visits and random urine screening for narcotics.

In 1979, the Utah licensing authority revoked respondent's medical license after finding that respondent had improperly prescribed Demerol for himself, had intercepted Demerol intended for patient use, and had stolen sodium pentothal from a hospital operating room. This revocation, however, was stayed on condition that respondent surrender his federal and state narcotics licenses, that he be prohibited from prescribing controlled substances, that he submit to quarterly psychiatric reports, and that he limit his practice to group or instructional physical and rehabilitative medicine.

In 1984, upon stipulation that respondent had improperly and excessively used sodium pentothal, barbiturates, and Demerol, the Colorado Board of Medical Examiners granted him a three-year probationary license. Respondent successfully completed this probationary period.

As part of his rehabilitative and pain management practice, respondent performed cryoanalgesia, a procedure which freezes nerves with liquid nitrogen. Respondent learned this technique by reviewing articles and manufacturers' videotapes. In an information sheet prepared for distribution to patients, however, he professed to have learned the procedure at the Mayo Clinic in Rochester, Minnesota.

During cryoanalgesic procedures, respondent administered intramuscular injections of Demerol to his patients. He obtained the Demerol from a hospital pharmacy and kept it in a locked drawer in his office desk.

Early in January 1991, respondent began using Demerol again. By keeping inadequate records of the Demerol used on patients, he diverted enough of the drug that, by the third week of February 1991, he was injecting himself daily.

Colorado Springs police detectives first contacted respondent on February 4, 1991, in connection with an investigation into excessive prescriptions of Ritalin obtained by one of respondent's patients. When they questioned the large volume of Demerol prescriptions in respondent's pharmacy records, respondent indicated that he was allergic to the drug and denied using it himself.

On February 15, 1991, respondent asked a patient to help him obtain some Demerol, allegedly to replace some that was missing from his office. He later instructed the patient to retrieve some Demerol prescriptions from his home mailbox which he indicated would be split between the patient and himself. The patient, accompanied by police officers, filled the prescriptions and placed respondent's portion of the Demerol in his mailbox. Respondent was then arrested.

In a later hearing before an Administrative Law Judge (ALJ), it was determined that the Demerol which was to be retained by the patient via this scheme was not related to her medical needs. It was further determined that respondent's prescription of Demerol to this patient had aggravated her chemical dependence and withdrawal symptoms.

At or about the same time as the mailbox incident, respondent entered an inpatient drug treatment program. While in a subsequent outpatient program, respondent continued to use Demerol on several occasions. After these charges were filed against him by the Board, respondent entered an inpatient recovery program in Atlanta, Georgia, designed specifically to treat health care professionals.

After hearing, the ALJ issued a comprehensive 66-page initial decision which was adopted by the Board. The ALJ concluded that respondent had engaged in acts of unprofessional conduct in violation of the Colorado Medical Practice Act (MPA), § 12-36-101, et seq., C.R.S. (1991 Repl.Vol. 5B), as follows: (1) excessive use of a habit forming drug or controlled substance; (2) multiple incidents of administering, dispensing, or prescribing habit forming drugs or controlled substances other than in the course of legitimate professional practice; (3) prescribing, distributing, and self-administering a schedule II controlled substance; (4) engaging in misleading, deceptive, or false advertising; (5) multiple acts or omissions which failed to meet generally accepted standards of medical practice; and (6) a nolo contendere plea to a felony drug charge.

Accordingly, the ALJ recommended to the Board that it revoke respondent's license. Respondent filed exceptions to the ALJ's findings and recommendations. After oral argument before the hearings panel, the Board adopted all of the ALJ's findings of fact and conclusions of law and revoked respondent's medical license. This appeal followed.

I.

Americans with Disabilities Act

Although respondent does not dispute that he suffers from a chemical addiction problem, he argues that his chemical dependency qualifies as a disability under the federal Americans with Disabilities Act (ADA). Respondent maintains that he was not using drugs illegally at the time of the hearing, and that he is entitled to the protection of the ADA because of his status as an addict in recovery. Under the circumstances, we do not agree that the ADA protects respondent from license revocation.

The ADA prohibits employment-related discrimination by a public entity against qualified individuals with disabilities. 42 U.S.C. § 12131, et seq. (1993 Supp.). Addiction is a disability according to the ADA; consequently, the ADA may provide protection to addicted individuals. This protection, however, does not extend to an individual who is currently engaging in the illegal use of drugs, including narcotics, regardless of the user's state of addiction to the drugs. See 28 C.F.R. § 35.131 (1994).

Current illegal use of drugs includes uses "that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem." See 28 C.F.R. § 35.131, App. A at 454 (1994). Thus, contrary to respondent's contentions, under the ADA, there need not be actual illegal use of drugs at the time of the disciplinary hearing or other employment-related action in order to find that an individual does not qualify as a person with a disability because of a "current illegal use of drugs."

Although the record reveals no illegal drug use by respondent since July 1991, his history of recurrent illegal drug use, the risks of relapse, and his relatively short period of recovery support the ALJ's finding that "continuing [drug] use is a real and ongoing problem" for respondent.

This court is bound by agency fact findings and conclusions of law if supported by substantial evidence in the record. See Arteaga v. Industrial Claim Appeals Office, 781 P.2d 98 (Colo.App.1989). Substantial evidence is that which is probative, credible, and competent, such that it warrants a reasonable belief in the existence of a particular fact without regard to contradictory testimony or inference. Allen Co. v. Industrial Commission, 762 P.2d 677 (Colo.1988).

Whether there is substantial record evidence to support an agency's decision is a question of law and the reviewing court must examine the record in the light most favorable to that decision. Colorado State Board of Nursing v. Lang, 842 P.2d 1383 (Colo.App.1992). The agency, and not the reviewing court, is charged with weighing the evidence and resolving any conflicts. Board of Assessment Appeals v. Colorado Arlberg Club, 762 P.2d 146 (Colo.1988).

Here, because the record reveals sufficient competent evidence to warrant a reasonable belief that respondent's illegal use of drugs was a real and ongoing problem, we will not disturb the decision. See Atchison, Topeka & Santa Fe Ry. Co. v. Public Utilities Commission, 763 P.2d 1037 (Colo.1988); Goodwill Industries v. Industrial Claim Appeals Office, 862 P.2d 1042 (Colo.App.1993).

Furthermore, contrary to respondent's contention, the absence of any evidence that he was using drugs illegally at the...