Page v. Bruce, Case No. 1:02CV141DAK (D. Utah 2/2/2004), Case No. 1:02CV141DAK.

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
PartiesGARY PAGE, M.D., Plaintiff, v. BYRON K. BRUCE, <I>et al.,</I> Defendants.
Docket NumberCase No. 1:02CV141DAK.
Decision Date02 February 2004

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GARY PAGE, M.D., Plaintiff,
v.
BYRON K. BRUCE, et al., Defendants.
Case No. 1:02CV141DAK.
United States District Court, D. Utah, Northern Division.
February 2, 2004.
MEMORANDUM DECISION AND ORDER

DALE A. KIMBALL, District Judge.


This matter is before the court on Plaintiff Gary Page's Motion for Partial Summary Judgment on the second and third causes of action and Defendants' Cross Motion for Summary Judgment on all causes of action. A hearing on the motions was held on January 28, 2004. At the hearing, Plaintiff was represented by Peter Stirba, and Defendants were represented by Assistant United States Attorney Carlie Christensen. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the memoranda, exhibits, and affidavits submitted by the parties, and the law and facts relevant to the motions. Now being fully advised, the court renders the following Order.

BACKGROUND

Many of the following facts are taken from the court's previous findings made in its Order denying Plaintiff's Temporary Restraining Order. At all relevant times prior to June 11, 2002, Dr. Page possessed a Drug Enforcement Administration ("DEA") Certificate of Registration pursuant to 42 U.S.C. § 822 ("DEA registration") that allowed him to distribute and dispense controlled substances.

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On or about April 15, 2002, Dr. Page began working part-time for a company called MedScripts.MD ("MedScripts"). MedScripts' purpose was to allow patients in need of weight loss and other prescription medicine to obtain their prescriptions electronically via the internet. In doing so, MedScripts would forward patient information to a licensed physician. The physician would review the information, determine whether the patient's medical conditions warranted the prescription sought and, if so, issue the appropriate prescription. Dr. Page was employed as one of MedScript's reviewing physicians. Between April 15 and June 11, 2002, Dr. Page worked a total of 21 days for Medscripts.

In early June 2002, Dr. Page received a telephone call from DEA Investigator Lynette Wingert. Investigator Wingert said she needed Dr. Page to sign a change of address form so that she could update her records. Wingert stated that she had another appointment in the Ogden area and that she wanted to come by Dr. Page's home to complete the form. Dr. Page agreed to meet Investigator Wingert on June 11, 2002 at his home. Prior to her arrival, Investigator Wingert never informed Dr. Page that she would also be serving him with a grand jury subpoena or that she was going to question him as to his involvement with MedScripts. She also never told Dr. Page that she would be accompanied by two other federal agents.

On June 11, 2002, Investigator Wingert arrived at Dr. Page's home and was accompanied by Investigator Byron K. Bruce, a Diversion Investigator with the DEA, and Special Agent Kim Heavey with the Food and Drug Administration (collectively "the investigators"). When Dr. Page answered his door, the investigators identified themselves, showed Dr. Page their credentials, and explained the purpose of their visit. The investigators served Dr. Page with a subpoena to produce documents to a grand jury in the United States District Court for the Northern District of Alabama.

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In addition to serving Dr. Page with the above-referenced subpoena, Agent Heavey also began asking Dr. Page a series of questions regarding his involvement with MedScripts. These questions had been provided to Agent Heavey by Special Agent Robert West. Agent West was involved with the above-referenced federal prosecution in Alabama. All of the investigators were present during this questioning. Dr. Page admitted that he had reviewed patient information submitted to Medscripts via electronic mail and, based on this information, had written prescriptions for these patients.

The investigators spoke to Dr. Page about the legality of his involvement with Medscripts and specifically whether he had the requisite doctor/patient relationship to prescribe controlled substances to individuals seeking prescriptions through Medscripts when he had not actually met face-to-face with each patient for whom he had issued a prescription. The investigators concluded that such prescriptions had not been issued for a legitimate medical purpose and/or in the usual course of Dr. Page's professional practice and that Dr. Page had violated federal regulations and the terms of his DEA registration by issuing such prescriptions.

Based on their conclusion, Investigator Bruce told Dr. Page that the DEA would seek an immediate suspension of Dr. Page's DEA registration and would issue an order to show cause why Dr. Page's DEA registration should not be revoked. As an alternative, Investigator Bruce told Dr. Page that he could voluntarily surrender his DEA registration by signing DEA Form 104, entitled "Voluntary Surrender of Controlled Substances Privileges" ("Form 104"). This form stated, in pertinent part, as follows:

After being fully advised of my rights, and understanding that I am not required to surrender my controlled substances privileges, I freely execute this document and choose to take the actions described herein.

X In view of my alleged failure to comply with the Federal requirements pertaining to controlled substances, and as an

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indication of my good faith in desiring to remedy any incorrect or unlawful practices on my part

* * *

I hereby voluntarily surrender my Drug Enforcement Administration Certificate of Registration, unused order forms, and all my controlled substances listed in schedule(s) [form left blank] as evidence of my agreement to relinquish my privilege to handle controlled substances listed in schedule(s) [form left blank]. Further, I agree and consent that this document shall be authority for the Administrator of the Drug Enforcement Administration to terminate and revoke my registration without an order to show cause, a hearing, or any other proceedings....

The investigators further advised Dr. Page that if he signed Form 104, they would inform the federal prosecutors in Alabama that he had been cooperative.

Investigator Bruce read Form 104 to Dr. Page and gave the form to Dr. Page to read for himself. The investigators and Dr. Page discussed Form 104 and Dr. Page was told that if he voluntarily surrendered his DEA registration by signing Form 104, he would be entitled to reapply for registration at any time. The investigators also told Dr. Page that he could prescribe controlled substances using his employing hospital's DEA registration.

Despite the parties' discussion, Dr. Page was never fully advised of all the rights to which he would be entitled if the DEA sought to revoke his DEA registration in the absence of a voluntary surrender. While Dr. Page was generally advised that he would be entitled to a hearing, he was never advised that (a) the order to show cause issued by the DEA would have to outline the specific grounds upon which the DEA was seeking to revoke Dr. Page's DEA registration; (b) prior to any hearing, Dr. Page would have an opportunity to consult an attorney and file a written response; (c) prior to any revocation, the DEA would have the burden of proving at a hearing that Dr. Page posed an immediate danger to the public health and safety; (d) Dr. Page would be entitled to have an attorney represent him at the hearing and have the attorney present and cross-examine witnesses; (e) Dr. Page would be entitled to appeal any adverse

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decision handed down at the hearing, both administratively and judicially; and (f) Dr. Page would retain possession of his DEA registration during the course of the foregoing procedures, hearings and appeals.

The investigators never encouraged or mentioned that Dr. Page could consult an attorney before deciding whether to sign Form 104. Dr. Page claims that he was given only half an hour to decide whether to sign the form and that the offer was a "one-time deal." Dr. Page was not arrested or threatened with arrest during the interview with the investigators. However, Dr. page feared criminal prosecution because of the proceedings ongoing against MedScripts.

After being presented with the form, Dr. Page did not read the form and signed it approximately ten minutes later. Dr. Page did not and has not surrendered his DEA registration form to the DEA.

Also while the investigators were at his home on June 11, 2002, Dr. Page turned over to Special Agent Heavey copies of all of the requested documents in the subpoena. Special Agent Heavey testified that Dr. Page was cooperative throughout the meeting.

On June 11, 2002, about two hours after the investigators left his home, Dr. Page contacted Investigator Wingert and informed her that he wanted to withdraw the Form 104. Investigator Wingert told Dr. Page to call Investigator Bruce. Dr. Page called Investigator Bruce while he was at the airport and because of the poor connection, Investigator Bruce told Dr. Page to call him the next day at his office in Colorado. Dr. Page called Investigator Bruce the next day and stated that he wanted to withdraw the consent and waiver that he had signed because he no longer wanted to voluntarily surrender his DEA registration. However, Investigator Bruce to Dr. Page that he could not do so because he believed that the revocation of Dr. Page's DEA registration was final and binding at the time Dr. Page signed Form 104. At the time Dr. Page

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called the investigators, the investigators had not taken any formal action to revoke Dr. Page's DEA registration. Investigator Bruce testified that he had put a code into the computer when he returned to office in Colorado. However, at that time, Investigator Wingert already knew that Dr. Page wished to revoke his consent and Investigator Bruce had spoken to Dr....

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