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Gray v. Medical Licensing Board of Indiana

Court of Appeals of Indiana

May 24, 2018

Gerald G. Gray, Appellant-Petitioner,
v.
Medical Licensing Board of Indiana, Appellee-Respondent.

          Appeal from the Gibson Superior Court The Honorable Robert R. Aylsworth, Judge Trial Court Cause No. 26D01-1510-PL-1084

          Attorney for Appellant Terry A. White Olsen & White, LLP Evansville, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana.

          Pyle, Judge.

         Statement of the Case

         [¶1] Dr. Gerald Gray ("Dr. Gray") appeals the denial of his petition for judicial review of an order issued by the Medical Licensing Board of Indiana ("the Board") indefinitely suspending his medical license. Dr. Gray specifically contends that the trial court should have granted his petition for judicial review because there is not substantial evidence to support the suspension. Concluding that substantial evidence supports the suspension, we affirm the trial court's denial of Dr. Gray's petition.

         [¶2] We affirm.

         Issue

         Whether the trial court erred in denying Dr. Gray's petition for judicial review.

         Facts

         [¶3] Seventy-nine-year-old Dr. Gray is an osteopathic physician who practices in southern Indiana. He was issued an Indiana medical license in June 1963. In 2004, Dr. Gray hired an unlicensed physician to treat his patients. Dr. Gray paid this unlicensed physician $20.00 per hour but submitted claims to Medicaid and insurance companies at his standard rates and under his name. Dr. Gray also allowed the unlicensed physician to prescribe controlled substances under Dr. Gray's Drug Enforcement Agency ("DEA") registration number. In 2005, Dr., Gray voluntarily surrendered his DEA registration number. In 2006, Dr. Gray pled guilty to one count of Medicaid fraud, and the Board placed him on indefinite probation with a list of terms and conditions, including continuing training, community service, and a fine.

         [¶4] Later in 2006, Dr. Gray filed an application for a new DEA registration. The DEA approved Dr. Gray's application pursuant to the terms of a 2007 Memorandum of Understanding ("MOU") that was scheduled to expire in early 2010. In the MOU, Dr. Gray agreed to abide by all state and federal laws relating to controlled substances. He also agreed not to prescribe, dispense, or administer any controlled substance to himself or any person with whom he did not have a legitimate doctor-patient relationship. He further agreed to prescribe controlled substances in a reasonable quantity for a legitimate medical purpose and to maintain a complete and accurate record of all controlled substances that he prescribed or maintained.

         [¶5] In May 2009, Dr. Gray filed an application to renew his Indiana Controlled Substance Registration ("CSR"). Question number two on the application asked if he had ever had any action, discipline, or revocation on his DEA registration or if he had ever entered into an MOU on the registration. Dr. Gray responded that he had not.

         [¶6] Also in 2009, C.P. began working as a housekeeper for Dr. Gray, and they soon began dating. From June 2009 through October 2009, Dr. Gray wrote C.P. eighteen controlled substance prescriptions. In October 2009, C.P. admitted to Dr. Gray that she had a "drug problem." (Tr. 102). C.P. moved into Dr. Gray's house in November 2009. In early 2010, Dr. Gray learned that C.P. was addicted to prescription narcotics.

         [¶7] In February 2010, Dr. Gray received authorization to prescribe Schedule III-V FDA approved narcotics for addiction treatment and began treating C.P. From February through October 2010, Dr. Gray wrote fourteen controlled substance prescriptions for C.P. In late 2010, C.P. sought treatment for her addiction at a local behavioral healthcare system. She subsequently stopped attending the treatment program, and Dr. Gray prescribed her Xanax. From January through March 2011, Dr. Gray gave C.P. intra-muscular shots, including Morphine, Demerol, Nubian, Morphine Sulfate, and Dilaudid.

         [¶8] In the spring of 2011, Board of Pharmacy Investigator Eric Pearcy ("Investigator Pearcy") and Indiana State Police Detective Vinnie Geiselman ("Detective Geiselman") contacted Madeline Kuzma ("Investigator Kuzma"), an investigator with the DEA. Investigator Kuzma is responsible for enforcement of the Controlled Substance Act as it applies to pharmaceutical controlled substances. Investigator Pearcy and Detective Geiselman expressed concerns about the combinations of controlled substances that Dr. Gray was prescribing to his patients, the fact that many patients were coming from as far away as Illinois to see Dr. Gray, and the fact that Dr. Gray was prescribing numerous controlled substances to C.P., who was known to be Dr. Gray's girlfriend and who was currently working in Dr. Gray's office.

         [¶9] Investigator Kuzma visited Dr. Gray's office in May 2011 and noted that Dr. Gray did not keep accurate records of the controlled substances in his office. In addition, Dr. Gray kept the Xanax that he dispensed to C.P. in a safe in his private residence. He also dispensed the Xanax to other patients. When Investigator Kuzma told Dr. Gray that his home was not a registered location for dispensing drugs and that dispensing drugs from an unregistered location was prohibited by federal regulations, Dr. Gray responded that he did not know that. Dr. Gray told Investigator Kuzma that he also did not know that he had violated federal regulations when he had prescribed hydrocodone, a Schedule II controlled substance, to C.P. for her opioid withdrawal while knowing that C.P. was an addict.[1] Investigator Kuzma further told Dr. Gray that he had also violated DEA regulations when he failed to report that he had suspected that an employee had stolen a controlled substance. In addition, Investigator Kuzma learned that in April 2011, Dr. Gray had prescribed Suboxone for C.P. She only took one dose of the drug, which she claimed made her nauseous. Dr. Gray kept the Suboxone pills in his office and dispensed it to other patients.

         [¶10] In October 2014, Dr. Gray filed a petition to remove the probation that had been imposed in 2006. In early 2015, the State received a notification from a local pharmacist that she was refusing to fill controlled substance prescriptions for Dr. Gray's patients. In May 2015, the State filed a five-count administrative complaint against Dr. Gray's medical license. The Board held a hearing in September 2015 on both the complaint and Dr. Gray's motion to withdraw his probation.

         [¶11] In October 2015, the Board issued a detailed order that found five violations of Indiana Code § 25-1-9-4. Specifically, the Board concluded that Dr. Gray had violated: (1) Indiana Code § 25-1-9-4(a)(4)(A) when he administered narcotic controlled substances to C.P. to treat her opioid addiction; (2) Indiana Code § 25-1-9-4(a)(4)(B) when he failed to keep abreast of current practices when he prescribed and/or administered controlled substances to C.P., a known drug addict, and other patients without objective evidence of medical necessity; (3) Indiana Code § 25-1-9-4(a)(9) when he knowingly prescribed or administered a narcotic, addicting, or dangerous drug to C.P., an addict; (4) Indiana Code § 25-1-9-4(a)(1)(A) when he engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice as evidenced by his failure to disclose the MOU containing limitations on his DEA registration when he renewed his application for CSR in 2009; and (5) Indiana Code § 25-1-9-4(a)(1)(A) in that he engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice as evidenced by his failure to disclose the MOU containing limitations on his DES registration when he renewed his application for a CSR in 2011. As a result of these violations, the Board indefinitely suspended Dr. Gray's medical license.

         [¶12] Shortly thereafter, Dr. Gray filed a petition for judicial review wherein he asked the trial court to review the Board's actions in suspending his license and to approve his petition requesting the withdrawal of his probationary status. The gravamen of his argument was that there was not substantial evidence to support the five statutory violations that resulted in the suspension ...


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