Marrs v. Board of Medicine

• Decision Date: 07 October 1985
• Docket Number: Docket No. 73499
• Citation: 375 N.W.2d 321,422 Mich. 688
• Parties: Jack W. MARRS, M.D., Plaintiff-Appellee, v. Michigan BOARD OF MEDICINE, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 321

375 N.W.2d 321

422 Mich. 688

Jack W. MARRS, M.D., Plaintiff-Appellee, v. Michigan BOARD OF MEDICINE, Defendant-Appellant.

Docket No. 73499.

Supreme Court of Michigan.

Decided October 7, 1985.

McGinty, Brown, Jakubiak, Frankland & Hitch, P.C. by Vittario E. Parco, East Lansing, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Gay S. Hardy, Asst. Atty. Gen., Lansing, for defendant-appellant.

PER CURIAM.

We are required in this case to determine whether the Court of Appeals erred in shortening substantially a one-year suspension imposed by the Michigan Board of Medicine on a physician found to have violated the Medical Practice Act and the so-called amphetamine rule.

I

On July 12, 1979, the Attorney General filed a formal complaint against Jack W. Marrs, M.D., charging the physician with violating the amphetamine rule, 1978 AACS, R 338.2302, in prescribing amphetamines to two patients, G.S. and S.S., and with violating the Medical Practice Act, M.C.L. Sec. 338.1801 et seq.; M.S.A. Sec. 14.542(1) et seq., ¹ in regard to accepted minimal standards of treatment as to those same two patients.

A formal hearing on the complaint against Dr. Marrs was held on July 16, 1980. At the conclusion, the hearing officer found that the physician had committed the following violations of the amphetamine rule:

"1. Licensee did not properly record the blood pressures, pulse, and checking of the heart and lungs of either G.S. or S.S.;

"2. Licensee did not properly record the weight of G.S.;

"These first two violations contravene Rules 3(1)(a) and 3(1)(e) of the Amphetamine Rule.

"3. Rule 3(1)(d) was violated in that Licensee did not stop dispensing Desoxyn after noting that S.S. was actually gaining weight over the course of her treatment.

"4. Rule 3(1)(f) was violated in that Licensee did not discontinue use of amphetamines for 90 days after having prescribed them for 90 continuous prior days."

As to the question of acceptable minimal standards, the hearing officer found the following violations of the Medical Practice Act:

"1. Section 11(1)(2)(b), which sets up as a violation the failure to use reasonable care and discrimination in the administration of drugs, and failure to employ acceptable scientific methods in the selection of drugs. While Licensee's motives may have been admirable, the more persuasive testimony is that the length of the prescribing period, coupled with the additive effects of multiple drug use were not reasonable under the circumstances.

"2. Section 11(1)(2)(c) in the limited sense of '... prescribing drugs for other than ... legitimate therapeutic purposes.' There is no contention anywhere that Licensee acted illegally, or that the drugs prescribed were intended for or got into the hands of other people. This Hearing Examiner finds persuasive the testimony of Dr. Toteff to the effect that the number and combination of drugs could not be defended as legitimately thereapeutic [sic ].

"3. Section 11(1)(2)(i), pertaining to conforming to minimal standards of acceptable medical practice. In relation to both the prescribing and the recordkeeping, Licensee did not conform to minimally acceptable standards of practice in his area for 1977-1978. Combining drugs in this fashion is potentially dangerous and calls for the strictest monitoring and recordkeeping."

The Board of Medicine, after accepting substantially all of the hearing officer's findings of fact and conclusions of law, reprimanded Dr. Marrs, suspended his license to practice medicine for one year, and ordered that during the suspension he earn forty hours of board-approved continuing medical education credit in the areas of pharmacology and therapeutics as well as pursue other required continuing medical education. The board further ordered that, upon reinstatement, Dr. Marrs be issued a limited license of not less than two years, during which time he could not obtain, possess, prescribe, dispense or administer any controlled substance under the Public Health Code or federal law. He also would be prohibited from applying for or obtaining a controlled substance license under Michigan or federal law and would be required to successfully complete two years of probation.

Dr. Marrs appealed the Board of Medicine's decision to the Ingham Circuit Court, which affirmed the board's decision and dissolved a preliminary injunction which had stayed the board's final order. Thereafter, Dr. Marrs pursued his appeal in the Court of Appeals, which granted the physician's motion to continue the preliminary injunction and stay the final order of the Ingham Circuit Court. The Court of Appeals, 129 Mich.App. 559, 341 N.W.2d 543 affirmed in part the order of the board and modified it in part. The Court of Appeals upheld all sanctions imposed upon Dr. Marrs except for the one-year suspension of his license to practice medicine. The suspension period was shortened to one month, with the physician being given credit for three weeks of suspension already served. The board's application for rehearing was subsequently denied.

The board applied to this Court for leave to appeal the decision of the Court of Appeals. Thereafter, Dr. Marrs applied for leave to cross-appeal.

II

The Court of Appeals basically concluded that the one-year suspension imposed by the Board of Medicine should be shortened because the board abused its discretion in imposing such severe discipline. The Court agreed with Dr. Marrs that the board had failed to consider the numerous mitigating factors present in his case. The Court found that the record showed that prior to this complaint Dr. Marrs had an excellent record as a physician: He had never been sued for malpractice, at all times had acted in good faith, and did attempt to limit the amount of drugs he prescribed to the two patients at issue. The Court opined, however that it perhaps would have been better judgment to have refused further medication altogether. In light of these mitigating factors and the other discipline imposed, the Court of Appeals stated that the one-year suspension of Dr. Marrs' license was an abuse of discretion because the primary goal of discipline, i.e., protection of the public, had already been satisfied by the other sanctions.

We agree with the Board of Medicine that the Court of Appeals clearly erred in finding an abuse of discretion on the facts of this case. The Administrative Procedures Act, M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq., governs the proceedings. Section 106 provides, concerning review of an agency decision:

"(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

"(a) In violation of the constitution or a statute.

"(b) In excess of the statutory authority or jurisdiction of the agency.

"(c) Made upon unlawful procedure resulting in material prejudice to a party.

"(d) Not supported by competent, material and substantial evidence on the whole record.

"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.

"(f) Affected by other substantial and material error of law.

"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings." M.C.L. Sec. 24.306; M.S.A. Sec. 3.560(206). (Emphasis added.)

In Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810 (1959), this Court set forth the standard for reviewing a claim of abuse of discretion in a civil matter:

"The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias."

In the years since the Spalding decision, although the standard regarding abuse of discretion has been often discussed and frequently paraphrased, it has remained essentially intact.

Our review of the record does not lead us to conclude as did the Court of Appeals that the Board of Medicine failed to consider the numerous mitigating factors present in this case. The fact that the board was not sufficiently persuaded by the mitigating factors to impose less than a one-year suspension does not mean that the board did not consider the factors. Rather, it may mean that the board considered the proven violations, themselves, so grave as to warrant being dealt with severely. Indeed, as the Ingham Circuit Court noted, there was extensive testimony concerning the ways in which Dr. Marrs' practice did not conform to prevailing minimal professional standards. As the circuit court further noted, there was sufficient evidence for the board to conclude that Dr. Marrs had been an habitual violator of the Medical Practice Act.

The Court of Appeals seemed to put much emphasis on the idea that the primary goal of discipline is protection of the public, and the supposition that it is unlikely that Dr. Marrs would repeat the violations because he now limits his practice almost exclusively to general surgery. In In the Matter of Grimes, 414 Mich. 483, 326 N.W.2d 380 (1982), this Court discussed the purpose of discipline in an attorney misconduct case. We stated in the context of that case that "protection" and "punishment" are not irreconcilable concepts, but rather that protection of the public may at times best be achieved through the deterrent effect of punishment. We reaffirm that belief.

On the facts before us, we are convinced that the Court of Appeals clearly erred in finding an abuse of discretion on the part...