Marrs v. Michigan Bd. of Medicine

• Decision Date: 15 December 1983
• Docket Number: Docket No. 68848
• Citation: 129 Mich.App. 559,341 N.W.2d 543
• Parties: Jack W. MARRS, M.D., Petitioner-Appellant, v. BOARD OF MEDICINE, Respondent-Appellee. 129 Mich.App. 559, 341 N.W.2d 543
• Court: Court of Appeal of Michigan — District of US

Page 543

341 N.W.2d 543

Jack W. MARRS, M.D., Petitioner-Appellant, v. BOARD OF MEDICINE, Respondent-Appellee.

Docket No. 68848.

129 Mich.App. 559, 341 N.W.2d 543

Court of Appeals of Michigan.

Submitted June 21, 1983.

Decided Oct. 10, 1983.

Released for Publication Dec. 15, 1983.

[129 MICHAPP 560] Farhat, Burns, Story & Stafford, P.C. by Vittorio E. Porco, Lansing, for petitioner-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Judith I. Blinn, Asst. Atty. Gen., for respondent-appellee.

Before J.H. GILLIS, P.J., and HOLBROOK and ERNST, ^* JJ.

J.H. GILLIS, Presiding Judge.

Petitioner, Jack W. Marrs, M.D., appeals as of right from the circuit court's order of December 23, 1982, affirming respondent Board of Medicine's final order suspending his license to practice medicine for one year and imposing restrictions on his practice thereafter.

The complaint filed by the Attorney General charged that between March, 1977, and September, 1978, Dr. Marrs violated 1978 AACS R, 338.2303, the so-called Amphetamine Rule, in the prescription of amphetamines to two patients, G.S. and S.S., seen at his family practice office, and by prescribing drugs to G.S. and S.S. in violation of the Medical Practice Act, M.C.L. Sec. 338.1801 et seq.; M.S.A. Sec. 14.542(1) et seq.

After a formal hearing held on July 16, 1980, the hearing officer, Philip J. Prygoski, found that [129 MICHAPP 561] in prescribing amphetamines for both G.S. and S.S. after March 20, 1978, Dr. Marrs violated the Amphetamine Rule by:

(1) failing to properly record the blood pressures and pulse and failing to check the heart and lungs of either G.S. or S.S., and failing to properly record the weight of G.S., in contravention of Rules 3(4)(a) and 3(4)(e);

(2) failing to stop dispensing Desoxyn after noting that S.S. was actually gaining weight over the course of her treatment, in violation of Rule 3(4)(d); and

(3) failing to discontinue use of amphetamines for 90 days after having prescribed them for 90 continuous prior days, contrary to Rule 3(4)(f).

In relation to the question of acceptable minimal standards applied in 1977 and 1978, the hearing officer found violations of the following sections of the Medical Practice Act:

(1) Sec. 11(2)(b), failure to use reasonable care and discrimination in the administration of drugs and failure to employ acceptable scientific methods in the selection of drugs, in that the length of the prescribing period, coupled with the additive effects of multiple drug use, was not reasonable under the circumstances;

(2) Sec. 11(2)(c), in the limited sense of " * * * prescribing drugs for other than * * * legitimate therapeutic purposes", not that Dr. Marrs acted illegally but that, according to one witness, the number and combination of drugs could not be defended as legitimately therapeutic; and

(3) 11(2)(i), in relation to both prescribing and record-keeping, Dr. Marrs did not conform to minimally acceptable standards of practice in his area for 1977-1978, since the combination of drugs in the manner prescribed was potentially dangerous [129 MICHAPP 562] and called for the strictest monitoring and record-keeping.

Based on these findings of fact and conclusions of law, the Board of Medicine reprimanded Dr. Marrs, suspended his license for one year, and ordered that during the suspension period Dr. Marrs earn 40 hours of Board-approved continuing medical education in the areas of pharmacology and therapeutics in addition to other continuing medical education requirements. In addition, upon reinstatement, Dr. Marrs would be issued a limited license for not less than two years, during which time Dr. Marrs would not obtain, possess, prescribe, dispense or administer any controlled substance under the Public Health Code or federal law and that Dr. Marrs could not apply for or obtain a controlled substances license under Michigan or federal law. Finally, once reinstated, Dr. Marrs would be placed on probation for two years.

On appeal, Dr. Marrs raises three issues.

First, contrary to his arguments on the first issue on appeal, petitioner was not denied an opportunity to show meaningful compliance with all lawful requirements for retention of his license. M.C.L. Sec. 24.292; M.S.A. Sec. 3.560(192) provides that "[b]efore the commencement of proceedings for suspension * * * of a license * * * [t]he licensee shall be given an opportunity to show compliance with all lawful requirements for the retention of the license". Petitioner does not argue that he never engaged in the prohibited activities but argues that, once a petitioner shows that the contested practices have ceased, with no intention for repetition, the complaint should be dismissed.

We disagree with petitioner's interpretation of the purpose of the statute. We read the compliance provision as calling for an informal proceeding [129 MICHAPP 563] prior to the filing of the complaint as a means of allowing prompt repudiation of the charges for any number of reasons, such as misidentification or falsehoods in the complaint. We do not interpret this section as calling for dismissal of the complaint on a mere promise by the licensee that, in the future, all regulations would be followed. The section is a procedural safeguard, providing an opportunity to dispute...