Gerald G. Gray, Appellant-Petitioner,
Medical Licensing Board of Indiana, Appellee-Respondent.
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
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Frances Barrow Deputy Attorney General
of the Case
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.
the trial court erred in denying Dr. Gray's petition for
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.
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.
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.
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
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.
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.
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. 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.
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
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.
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 ...