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02-1491 HA - MBRHA - Pharmacology Incompetence

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    July 18, 2015 7:39:40 PM PDT

    Case 02-1491 HA http://168.166.15.111/Clients/MOAHC/Public/Case_Details.aspx?&EntityID=107509

    is another example of incompetent and reckless regulation by the Missouri Board of Registration for the Healing Arts (MBRHA). The majority of the case has been "Archived," but the Judge's verdict has been removed. I downloaded the case before it was removed and it can now be found

    at Missouri Board of Healing Arts vs. Dr. Seth Pakson.  


    https://archive.org/stream/Missouri-SBRHA-vs-Dr-Pakson/mbrha#page/n147/mode/1up


     

    Adipex is the trade name of the generic drug phentermine hydrochloride. The MBRHA asserted that phentermine is an "amphetamine," which it is not. http://pubchem.ncbi.nlm.nih.gov/compound/phentermine

    This lack of pharmacologic knowledge, and appropriate use of pharmaceuticals are additional examples of medically-incompetent claims filed in court by the MBRHA. Such regulatory incompetence and clinical ignorance manifesting in litigation could be prevented by mandatory pre-court literature reviews by the MBRHA. It does not look favorably on the medical profession when the leaders, the doctors on the state medical board commission the Board to repeatedly files claims in court suggesting the doctors serving on the MBRHA lack competent medical knowledge.


    Healing ArtsOn September 28, 1999, Dr. Pakson provided "by-the-books," "guideline-appropriate" medical care for a patient with obesity.

    Instead of reviewing the clinical practice guidelines, and instead of reviewing the pharmacology of adipex, the MBRHA filed claims in court to

    try and berate Dr. Pakson as a bad physician. Since the MBRHA is a group of physicians that is supossed to be able to evaluate its licensees,

    then when don't they know what the standard of care is? The Board of Healing Arts could at least lookup the standard of care before

    launching a four-and-a-half year court case where they lose on every count. 


    Hundreds of thousands of Missourian's tax dollars are being wasted by regulatory negligence and dishonesty.


    Missouri Board of Registration

    Missouri Medical Board Incompetence



    Adipex, Phentermine ydrocloride, is not an amphetamine as the Missouri Board of Registration for the Healing Arts asserts.

    2. Following the obestiy guidelines is not unethical as the MBRHA asserted.

    3. The Doctors on the MBRHA have demonstrated clinical and pharmacological incompetence in filing this case v. Dr. Paskon. Perhaps they should review the medical literature and esnure their own competence instead of filing medically-incompetent claims in court. 

     

    Before the

    Administrative Hearing Commission

    State ofMissouri

     

     

     

     

     

    STATE BOARD OF REGISTRATION             )

    FOR THE HEALING ARTS,                              )

                                                                                  )

                                        Petitioner,                          )

                                                                                  )

                vs.                                                              )                 No. 02-1491 HA

                                                                                  )

    SETH PASKON, M.D.,                                       )

                                                                                  )

                                        Respondent.                      )

     

     

    DECISION

     

                The State Board of Registration for the Healing Arts (“the Board”) has not established cause to discipline the physician and surgeon license of Seth Paskon, M.D.

    Procedure

     

                The Board filed a complaint on September 27, 2002, seeking this Commission’s determination that Paskon’s license is subject to discipline.[1]  On October 4, 2002, Paskon received a copy of the complaint and notice of the date and time of the hearing by certified mail.  On January 6, 2003, the Board filed a first amended complaint with ten counts. 

     

     

     

                This Commission convened a hearing on July 19-22, 2004.  During the hearing, the Board dismissed Count X.  This Commission reconvened the hearing on August 5, 2004; November 29-30, 2004; and December 1, 2004.  During the hearing on November 30, 2004, the Board amended the first amended complaint by dismissing Counts I and VI, and narrowing the time periods referenced in other counts.  On December 27, 2004, the Board filed its second amended complaint.  This Commission reconvened the hearing on January 14, 2005;

    February 23, 2005; and May 26, 2005.

                Glenn E. Bradford and Elizabeth Mirsepassi, with Bradford & Walsh, PC, represented the Board.  Johnny K. Richardson, with Brydon, Swearengen & England, PC, represented Paskon.  The Board filed the last written argument on February 10, 2006.    

    Findings of Fact

    Paskon’s Practice

                1.  Paskon is licensed by the Board as a physician and surgeon.  His license was first issued on May 5, 1973.  His certificate of registration is current and was current and active at all relevant times. 

                2.  During all periods at issue, Paskon had a general family medical practice at Potosi Medical Clinic inPotosi,Missouri.  Paskon was a solo practitioner. 

                3.  Almost 80 percent of Paskon’s patients were on Medicaid.  All of the patients at issue in this case were on Medicaid.  Paskon’s patients generally were not well educated.  They generally had completed only the eighth or ninth grade in school and then obtained a GED.  Many of them were disabled.  

                4.  Paskon used printed forms to record his office visits.  The form that he used until October 1998 had blanks for the patient’s name, address, phone number, birth date, medications, drug allergies, height, weight and blood pressure, and lines for taking notes for visits.  The form

     

     

    that he used as of October 1998 and after had a column for determining the history of present illness (“HPI”).  This included a review of symptoms (“ROS”), which had a list of body systems and boxes to check for “nl” (within normal limits) or “see note” to note abnormalities.  The ROS also included past, family and social history (“PFSH”), which had boxes to check for “no chng” or “see note.”  The ROS also included a checklist of body systems for the exam and had boxes to check for “nl” or “see note.”  The body systems included “psych.”  The bottom of the chart stated:  “No ü:  no review/exam.” 

                5.  Because Paskon practiced family medicine, he was not dealing with only one medical condition, such as anxiety, but a number of conditions for various patients.  (Tr. 1202.)   

    Prescriptions for Psychotropics by General Practitioners

                6.  A general family medical practitioner can treat emotional disorders and prescribe psychotropic medications (medicines that have a direct effect on the brain).  Approximately 60 percent of the prescriptions for psychotropic medications are prescribed by general practitioners. 

                7.  Paskon used psychotropics as an adjunct to pain medication because they served a purpose for muscle relaxation, which would help ease a patient’s pain.  The physical problems such as back pain caused anxiety, depression, and insomnia.  (Tr. 323-24.)

                8.  A doctor must sometimes give a new prescription before the previous prescription has run out because the office is not always open and the patient must make an appointment when a slot is open on the schedule. 

                9.  The patients at issue in this case were not psychotic or mentally incompetent.  Paskon’s examination of the patients’ mental state was not as detailed as a psychiatrist’s examination in the same situation.  (Tr. 335.)

     

     

     

     

    Count II:  J.L.[2]

    10.  J.L. first visited Dr. McKinney, a family practitioner inBismarck,Missouri, on August 6, 1996.  At that time she was already taking Xanax for anxiety.  She was on Coumadin therapy, but was not compliant.  She was taking Dilantin 100 mg., an anti-seizure medication, three times per day, but still reported seizures.  She reported that she was also taking Flexeril

    10 mg. four times per day and Baclofen 20 mg. four times per day.  Flexeril and Baclofen are medications to control muscle spasms and cause muscle relaxation.  She reported that she had been in a wheelchair for three and a half years due to her inability to use her right leg, but within the past year she had begun ambulating with difficulty, using a cane.  She reported that she had five migraines so far that year, and that they were generally so severe that she would be hospitalized typically for three days at a time.  She stated that they “put me to sleep” to relieve the headache.  Dr. McKinney’s records state that J.L. reported that she could not find a physician in the local area to care for her, and that she had repeatedly been to the hospital but was treated only in the ER because the ER physician could not find “any physician who is willing to accept her as an inpatient.  Internist there [sic] have reportedly refused.”  Dr. McKinney’s diagnoses included “anxiety chronic w/probably underlying depression.”  Dr. McKinney continued to prescribe Xanax and Dilantin.  Dr. McKinney’s notes stated:  “if she needs pain meds she must check back with her internist at SLU who has documentation.”  Dr. McKinney informed J.L. that he would work with her as long as she was compliant in obtaining Pro-times, Dilantin levels, and not misusing medications.  She was also to follow up for further evaluation and control of her migraines.  Dr. McKinney advised her that if she was not compliant, he would not provide care. McKinneyprescribed more Xanax on February 28, 1997, and continued to prescribe Xanax for

     

     

     

    her through March 3, 1999.  McKinneycontinued to prescribe Flexeril and Baclofen in combination, and also prescribed Dilantin at the same time.  (Ex. 7 at 301.)[3] 

    11.  Paskon has treated and cared for J.L. since May 1999.  He has treated her for a variety of ailments, including lumbar disc syndrome, right sciatic neuralgia, chronic right knee and leg pain, recurrent migraine and tension headaches, anxiety, pulmonary embolism (a blood clot in the lower extremity), and hyperthyroidism.  Paskon has prescribed medications to J.L. for these ailments. 

    12.  J.L. first went to Paskon on May 11, 1999, traveling from Park Hills to Potosifor treatment.  She could not find any other doctor to care for her.  (Tr. 1287.)  She reported that her current medications included Dilantin, Flexeril, and Baclofen.  She stated that she had been physically assaulted and had pain in her neck and shoulder.  She stated that she had been choked around the neck and slapped on the right side of her face.  She had also been hit on her forearm.  She also complained of back pain, right knee pain, and insomnia.  She complained of migraine headaches with nausea and vomiting.  She was 39 years old and had suffered severe migraines since she was a teenager.  She stated that she had a seizure disorder.  She also stated that she was previously a patient of Dr. McKinney and that he prescribed Xanax for anxiety.  She had also been seen by Dr. Mayfield, a psychologist.  She reported that she was taking Ultram and Darvocet-N 100, but that they were ineffective to relieve her pain.  Paskon checked the box for psychiatric examination and noted that she had nervousness.  Paskon’s diagnoses included physical assault, strain/sprain to neck, contusion, strain to forearm, and anxiety reaction.  Paskon’s prescriptions included 40 Lorcet Plus to be taken every six hours prn[4] and

     

     

     

    90 Xanax .5 mg. to be taken three times per day.  Lorcet is a brand name for hydrocodone with acetaminophen, which is a Schedule III controlled substance.  Acetaminophen (Tylenol) is sometimes abbreviated “APAP.”  Xanax is a Schedule IV controlled substance. 

    13.  A copy of Dr. McKinney’s records is in Paskon’s file for J.L.  It usually took a month or two to get records from another doctor after Paskon accepted a patient.  (Tr. 1284.) 

    14.  It was not Paskon’s ordinary practice to prescribe Flexeril and Baclofen together.  Paskon did so for J.L. because two previously treating neurologists had done so to control her muscle spasms in her right leg (Tr. 1288), and Dr. McKinney had continued this practice. 

    (Tr. 1250.)  Paskon prescribed these medications for her lower back muscle spasms and because she had otherwise uncontrollable leg and muscle jerking in her right lower extremity.  (Tr. 1260, 1288.)[5]

    15.  June 30, 1999:[6]  J.L. had “drop foot” in her right leg, which meant that her foot drug when she walked.  She reported that she had been in a wheelchair for three and a half years, but was walking with a cane at the time of the visit.  She complained of migraines, which caused nausea and vomiting.  She also complained of pain in her back, neck, and shoulder.  She suffered from grand mal and complex seizures.  Grand mal seizures involve jerking and loss of consciousness, while complex seizures involve going blank for a period of time.  She complained of nervousness and insomnia.  On physical examination, Paskon noted that she was alert.  The

     

     

     

    box for psychiatric examination was checked.  Paskon’s diagnoses included neck-shoulder pain myofasciatis, headache, anxiety reaction, and depression.[7] 

                16.  Paskon prescribed Xanax to J.L. for anxiety, but also as an adjunct therapy for pain management to help with muscle spasm.  It was also used to help with depression.  Xanax is a Schedule IV controlled substance. 

    17.  Paskon continued to prescribe Dilantin to J.L., as Dr. McKinney and other doctors had, for seizures.[8] 

    18.  July 13, 1999:  J.L. continued to complain of nervousness and insomnia.  She complained of migraines, which were worse if she could not sleep.  She reported that her neck pain was unchanged and that she still had back and shoulder pain.  On physical examination, Paskon noted that she was alert.  She also complained of right leg pain and weakness.  Paskon noted that she had intractable pain in the knee, elbow, and lumbar spine.  Paskon’s diagnoses included right leg weakness and anxiety reaction.  Paskon’s prescriptions included 30 Oxycontin 20 mg. to be taken once every 12 hours for pain, 60 Lorcet 10/650 mg. to be taken once every six hours prn for breakthrough pain, and 90 Xanax 1 mg. to be taken three times per day prn.  The “650” in the Lorcet denotes the number of milligrams of Tylenol.  Oxycontin is a Schedule II controlled substance.   Paskon added the Oxycontin because the Lorcet was insufficient for pain relief. 

     

     

     

    19.  On July 26, 1999, J.L. was admitted to the hospital with pneumonia and a severe migraine.  She had the headache for five days before being admitted, and narcotic analgesics did not relieve it.  She had recurrent episodes of nausea and vomiting for two to three days before being admitted.  She reported that this was one of the most severe migraines she had had in the past few years.  Paskon was the treating physician.  He was concerned that if she could not keep her medicine down due to vomiting, she could experience withdrawal effects from lack of Xanax and other medication.  The hospital records state:

    Her severe intractable headache poorly responded to Demerol injection.  Subsequently Morphine IV injection was given.  She could not sleep.  Ativan IV was given without sedation effect.  Finally she received Phenobarbital to help her sleep. . . . Subsequently she had a spinal tap done on 7/27/99.  The fluid appeared clear and colorless.  The study was negative for meningitis.  Her headache was due to exacerbation of severe migraine headache in nature. 

     

    She was discharged on July 29, 1999.  Discharge medications included Xanax 1 mg. four times per day, and Lorcet every six hours for headache and pain. 

    20.  August 5, 1999:  J.L. reported that she still experienced lumbar back pain, but that her migraines had decreased.  She reported that her nervousness had decreased since she was on narcotic medication.  She complained of constant pain in her right knee and leg.  The box for psychiatric examination was checked.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included pulmonary embolism, migraine headaches, lumbar back pain, depression, and right leg/knee pain.  Paskon’s prescriptions included Xanax 1 mg. three times per day, 40 Oxycontin 20 mg. to be taken every 12 hours for pain, 60 Lorcet 10/650 mg. to be taken every six hours prn, and 60 Ativan 2 mg. to be taken every six hours prn.  The Ativan that Paskon prescribed in his office was a tablet that could be taken by mouth and dissolved under the tongue (sublingual, or SL).  This could be absorbed under her tongue into her body even if she

     

     

     

    was vomiting.  (Tr. 1278.)  Ativan is a Schedule IV controlled substance.  The Xanax was a maintenance medication for her to take around the clock to control her nervousness.  Paskon prescribed the Ativan contemporaneously with the Xanax as a rescue medication in case she could not keep the Xanax down.  (Tr. 1292.)  It would prevent some withdrawal effect from vomiting the Xanax and not having it in her body.  (Tr. 1278.)  The Ativan was also for breakthrough anxiety so that Paskon would not have to increase the dosage of Xanax to 2 mg.  (Tr. 1293.) 

    21.  J.L. filled prescriptions from Paskon for Dilantin, Oxycodone, and Lorcet on

    August 5, 1999.[9]

    22.  August 6, 1999:  Paskon prescribed 60 Valium 10 mg. after prescribing Xanax and Ativan the previous day.[10]  Valium is a brand name for Diazepam, which is a Schedule IV controlled substance.  Paskon’s testimony offers no explanation for this prescription of Valium. 

    Xanax, Ativan, and Valium are all drugs from the same class:  benzodiazepines.  They have sedative side effects, judgment side effects, and potential problems with severe sedation. 

    (Tr. 126-27.) 

    23.  August 17, 1999:  J.L. complained that she had dropped a can of fruit cocktail on her right foot the previous week, had gone to the ER and had an X ray, and that they put a splint and an Ace wrap on her foot.  She complained that on a scale of 1 to 10, with 10 being the worst pain, her right foot pain was 7/10.  She was walking on crutches.  On physical examination, Paskon noted that she was alert.  Paskon examined her and found that she had tenderness and pain across the lumbar spine and left scapular muscle area.  Paskon’s diagnoses included lumbar

     

     

     

    back pain, osteoarthritis of the right knee, contusion to the right foot, anxiety disorder, and pulmonary embolism.  Paskon’s prescriptions included 60 Lorcet 10/650 mg. to be taken every six hours prn, 90 Xanax 1 mg. to be taken three times per prn, and 120 Ativan 2 mg. to be taken every six hours prn.

    24.  An X ray of J.L.’s lumbosacral spine on August 25, 1999, was normal.  A copy of the diagnostic imaging report is in Paskon’s records.  (Ex. 7 at 203.)

    25.  August 27, 1999:  J.L. had been to the ER two days prior and went to Paskon’s office for followup.  She was still walking on crutches and still had her right foot in a temporary cast from the injury two weeks prior.  She complained of repeated falls and stated that her arm and leg were spastic.  Paskon questioned whether she had multiple schlerosis or systemic lupus erythematosus (“SLE”), which would cause musculoskeletal pain and muscle spasm.  She complained of an increase in back pain and that she also had right leg and knee pain.  Paskon noted that she had a history of a protruded lumbar disc and had been in a wheelchair for three and a half years.  On physical examination, Paskon noted that she was alert.  Paskon noted that she had a history of epileptic seizures and that her last seizure was eight months prior.  On examination, Paskon noted that she had pain and stiffness across the lumbar spine, with pain radiating to her right knee.  Paskon noted that her last MRI scan was nine years prior.  Paskon checked the box for psychiatric examination and noted that she was depressed and had nervousness.  Paskon noted that Flexeril did not help her muscle spasms, so he wanted to try Soma to see if it worked better.  Paskon noted that J.L.’s antinuclear antibody test came back positive, which meant that she might have SLE.  He also noted that a wheelchair should be ordered for her.  Paskon’s diagnoses included lumbar disc syndrome, right sciatic neuralgia, right foot pain, depression, and possible SLE.  Paskon’s prescriptions included 40 Oxycontin 40 mg. to be taken every 12 hours for pain, 60 Lorcet 10/650 mg. to be taken every six hours prn,

     

     

    120 mg. Soma to be taken four times per day, Neurontin, and 60 Valium 10 mg., half to one tablet every six hours.[11]  The manufacturer’s recommended dose of Soma is 350 mg. four times per day.  The number of Oxycontin pills was low so that she could see if she could get by taking it less frequently. 

    26.  September 10, 1999:  J.L. reported that she felt better with the combination of Neurontin, Soma, and Oxycontin.  On physical examination, Paskon noted that she was sedated, had drowsiness, and that her speech was slurred.  She complained of right knee pain and an increase in back pain, and she walked with a cane.  The slurred speech caused Paskon concern that J.L. was overmedicated.  Authorization was pending for an MRI of the lumbar spine.  She reported that the Oxycontin helped her to sleep and helped control the pain in her lower back, shoulder, and knee.  She reported that she had been out of Xanax for two days and had been irritable and nervous.  She stated that she took Valium occasionally.  Paskon was concerned that the Valium was causing too much sedation.  The box for psychiatric examination was checked.   J.L. still lived with her mother.  Paskon made a note that the patient’s mother, K.M., would supervise her medication and report the patient’s behavior to Paskon.  Paskon’s diagnoses included lumbar back pain, migraine headache, right knee pain, DVT (deep vein thrombosis), pulmonary embolism, epilepsy, and anxiety reaction.  Paskon’s prescriptions included 40 Oxycontin 40 mg. to be taken every 12 hours for pain, 40 Lorcet 10/650 mg. to be taken every six hours prn, 90 Xanax 1 mg. to be taken three times per day, and 60 Ativan 2 mg. to be taken every six hours prn. 

    27.  J.L. had a CT scan of the lumbar spine on September 30, 1999, that showed: 

    At L4-5 there is a mild broad base posterior disc bulge but no focal herniations, spinal canal or neuroforminal stenosis. 

     

     

     

     

     

    IMPRESSION:

     

    Mild broad base posterior L4-5 disc bulge otherwise negative study. 

     

    A copy of the diagnostic imaging report is in Paskon’s records.  (Ex. 7 at 201.)

    28.  October 1, 1999:  J.L. reported that the pain in her right leg had been worsening for one week.  She complained of constant lumbar back pain and right knee pain.  She had chronic DVT in her right leg.  On physical examination, Paskon noted that she was alert.  She was not drowsy and sedated, as on her last visit.  Upon examination, Paskon found that she had superficial phlebitis (inflammation of the vein) of the calf in her right leg.  Paskon checked to make sure that she had no ankle swelling or thigh pain, which could be signs of a clot (DVT) that could endanger her heart.  Paskon noted that she had ileofemoral umbrella vena cava implantation and that she had previous DVT and pulmonary embolism.  Paskon noted that she had been to the pain clinic inCape Girardeauin the past.  Paskon’s diagnoses included thrombophlebitis of the right leg superficial vein, anxiety reaction, lumbar back pain, and right knee pain.  Paskon’s prescriptions included 60 Oxycontin 40 mg. to be taken every 12 hours for pain, 60 Lorcet 10/650 mg. to be taken every six hours prn, and 120 Xanax 1 mg. to be taken four times per day prn. 

    29.  October 7, 1999:  J.L. complained of fever, nausea, and vomiting.  J.L. told Paskon’s assistant that she had had muscle spasms in her arms and legs for six to seven years.  His assistant noted that J.L. had had an EMG nerve conduction study in the past and that it was normal.  This was in regard to J.L.’s right leg.  J.L. reported no pain at the filter site (the umbrella implantation in her groin).  J.L. complained of increased anxiety because her brother was in jail for murder.  She was worried that he would receive the death penalty.  She was visibly shaking, and her mouth was trembling.  Paskon advised admission to the hospital due to

     

     

    the nausea, vomiting, and fever, and J.L. refused because she preferred to be treated with medication as an outpatient.  The box for psychiatric examination was checked.  Paskon’s diagnoses included phlebitis and anxiety reaction.  Paskon’s prescriptions included 120 Xanax

    1 mg. to be taken four times per day and 120 Ativan 2 mg. to be taken every six hours prn. 

    30.  Paskon had difficulty keeping J.L.’s medications on schedule because the vomiting accompanying the migraine headaches caused her to vomit up her pills.  (Tr. 1340.)  J.L.’s mother went to Paskon’s office with her to assist her with her medications. 

    31.  October 11, 1999:  J.L. complained of migraine headache and reported that she was seen by a psychologist, Dr. Mansfield, in Ironton.  The box for psychiatric examination was checked.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included migraine headache, pneumonia, phlebitis in the right leg, and lumbar back pain.  Paskon’s prescriptions included 60 Oxycontin 40 mg. to be taken every eight hours and 60 Lorcet 10/650 mg. to be taken every six hours prn.  Paskon prescribed the Oxycontin every eight hours instead of every 12 hours because she was developing some tolerance to it. 

                32.  An MRI of J.L.’s lumbar spine on October 12, 1999, showed: 

    The vertebral bodies are normally aligned and intact.  Marrow signal is unremarkable.  Disc spaces at L 1-2. L2-3 and L3-4 are well maintained.  No disc herniations, significant disc bulge, spinal canal or neuroforaminal stenosis is seen at these levels.  At L4-5 there is a right posterior eccentric focal disc bulge mildly effacing the thecal sac but without gross neuroforminal stenosis or neuron impingement identified.  At the L5-S1 no focal disc bulge or herniation is seen.

     

    IMPRESSION:

     

    Mild right posterior L4-5 disc bulge otherwise negative MRI of lumbar spine.

     

    A copy of the diagnostic imaging report is in Paskon’s records.  (Ex. 7 at 219.) 

     

     

     

    33.  October 26, 1999:  J.L. reported that she was out of Lorcet.  She reported that she had a grand mal seizure and complex seizure on October 20.  She complained of lumbar back and right leg pain.  She reported a worsening of lumbar pain for the previous two months.  On physical examination, Paskon noted that she had lumbar back tenderness and pain, and pain radiating down her right leg.  He also noted right leg and right knee pain.  Paskon noted that she was alert.  The box for psychiatric examination was checked, and Paskon noted that she was nervous.  Paskon’s diagnoses included lumbar disc syndrome, anxiety reaction, pulmonary embolism, chronic DVT, and epilepsy.  Paskon’s prescriptions included 90 Lorcet 10/650 mg. to be taken every six hours prn. 

    34.  An MRI of the lumbar spine on October 12, 1999, showed a mild bulging disc.  A copy of the diagnostic imaging report is in Paskon’s records. 

    35.  November 19, 1999:  J.L. went to see Paskon for medication refills.  Paskon noted that the patient was accompanied by her mother, who supervised her medications.  His assistant noted that she walked slowly with a cane.  His assistant noted lumbar tenderness and pain with light palpitation.  His assistant conducted a straight-leg raising test.  His assistant noted that there was no tenderness in the calf.  Paskon noted that J.L. was able to move and walk better with pain medication.  On physical examination, Paskon noted that she was alert and oriented.  The box for psychiatric examination was checked, and Paskon’s assistant noted that she was A&Ox3 (alert and oriented times three).  An entry states:  “MRI results noted,” but it does not explain what the results were.  Paskon’s diagnoses included seizure disorder, recurrent thrombophlebitis (DVT), and lumbar disc syndrome.  Paskon’s prescriptions included 60 Oxycontin 20 mg. to be taken every 12 hours and 60 Lorcet 10/650 mg. to be taken every six hours prn.  The Oxycontin was cut in half (from 40 mg. to 20 mg.) from the previous visit. 

     

     

     

    36.  December 15, 1999:  J.L. complained of back pain and headache.  She complained of right knee and leg pain and that her lumbar back pain was the same or worse.  She admitted a history of marijuana abuse prior to seven years previous.  The box for psychiatric examination was checked.  Paskon’s notes included an entry for “MRI L-spine,” but this had already been done.  Paskon’s diagnoses included lumbar disc syndrome and osteoarthritis of the right knee.  Paskon gave an injection of blood thinner in addition to the regular Coumadin therapy because her prothrombin time was not at the therapeutic level.  She experienced chest pains, and Paskon was concerned about the recurrent pulmonary embolism.  Paskon wanted to admit her to the hospital overnight, but she refused.  Paskon’s prescriptions included 60 Oxycontin 20 mg. to be taken every 12 hours, 40 Lorcet 10/650 mg. to be taken every six hours prn, 120 Xanax 1 mg. to be taken every six hours prn, and 60 Ativan 2 mg. to be taken every six hours prn. 

    37.  December 17, 1999:  J.L. complained of right leg and knee pain, but stated that her pain was relieved by pain medications.  On physical examination, Paskon noted that she was alert.  On the straight-leg raising test, Paskon found that she had right leg and lumbar spine pain at 45 degrees.  She also had right knee pain.  Paskon’s diagnoses included recurrent DVT of the right leg, and right leg and knee pain.  Paskon did not prescribe any more medications that are at issue in this case on that date.

    38.  December 30, 1999:  J.L. stated that she wanted to see a surgeon for the bulging disc.  She complained that her back pain was worse and that she had some numbness in her right leg.  J.L. was there with K.M., her mother.  Paskon noted that K.M. verified that J.L. was suffering from lumbar back pain and pain in the right leg.  J.L. had been irritable and depressed, and she had a crying episode.  On physical examination, Paskon noted that she was alert.  Paskon checked the box for psychiatric examination and noted that she was nervous and depressed. 

     

     

     

    Paskon made an appointment with Dr. Weatherton, a neurosurgeon, for her.  J.L. complained of muscle spasm in the calf of her right leg.  She stated that Oxycontin failed to control her pain.  Paskon’s diagnoses included lumbar back pain, disc syndrome, right sciatica, right knee pain, and anxiety reaction.  Paskon’s prescriptions included 90 Oxycontin 40 mg. to be taken every 12 hours, 40 Lorcet 10/650 mg. to be taken every six hours prn, and 90 Ativan 2 mg. to be taken every eight hours.  Paskon instructed her to take Xanax twice per day, but the record does not show a new prescription for Xanax on that date. 

    39.  January 24, 2000:  J.L. complained that her back pain had worsened for the previous three to four days.  Her anxiety was increased because her brother was in jail and her daughter was in a motor vehicle accident.  On physical examination, Paskon noted that she was alert and that she had tenderness and pain across the lumbar spine.  He noted that she walked with a cane and had right knee pain.  Because the pain in her back and extremities increased with exercise, Paskon referred her to an orthopedist for her knee pain.  Paskon’s diagnoses included lumbar disc syndrome, right sciatica, DVT, and right knee pain.  Paskon’s prescriptions included 90 Oxycontin 40 mg. to be taken every 12 hours, 90 Lorcet 10/650 mg. to be taken every six hours prn, and 120 Xanax 1 mg. to be taken every six hours prn. 

                40.  In March 2000, Paskon consulted with Dr. VanNess, an orthopedist.  Dr. VanNess described J.L. as having chronic pain with reflex sympathetic dystrophy of the lower extremity and left lower extremity radiculopathy.  He described her as having chronic pain. 

    41.  By July 11, 2000, J.L. had a rapid heartbeat, and her neck was enlarged.  By September 5, 2000, she still had a rapid heartbeat, was nervous and shaky, and had lost weight.  Paskon conducted tests to confirm a diagnosis of hyperthyroidism, and her thyroid was eventually removed.  Her medically confirmed hyperthyroid condition showed that she was not faking her nervousness.  (Tr. 1335.)

     

    42.  Dr. McKinney’s documentation as to his prescriptions of Xanax to J.L. is no more detailed than Paskon’s. 

    43.  Paskon documented a basis in J.L.’s chart for the medications that he prescribed to her. 

    44.  Paskon had no knowledge whether or when his patients filled prescriptions. 

    (Tr. 1300.)

    45.  Generally, a pharmacy will not fill another prescription for a medication before the previous prescription would have been used up if taken according to the doctor’s directions.  However, if the doctor had prescribed a 30-day supply of Oxycontin 40 mg. but then switched to a prescription for Oxycontin 20 mg., the pharmacy would fill the prescription for the Oxycontin 20 mg. before the 40-mg. supply should have run out, because it is a different dosage of the medication.  (Tr. 1343-45.)  Similarly, if the doctor changed to a different medication for the same purpose, such as Lorcet instead of OxyIR (Oxycontin immediate release), the pharmacy would fill the new prescription even though the previous prescription would not have been used up yet if taken according to the doctor’s directions.  (Tr. 1346.)

    46.  At some unspecified point in time, Mark Moyers, a pharmacist at Medicine Shoppe, called Paskon and told him that he would not fill any more Oxycontin prescriptions for J.L. 

    (Tr. 1346-47.)

                47.  The Board’s investigator informed Paskon that he went to interview J.L. to investigate the complaint against Paskon.  The investigator stated that J.L. stumbled or fell and that she seemed very drowsy.  (Tr. 1353.)


     

     

    Count III:  N.M.

    Treatment

                48.  N.M. first visited Paskon on October 19, 1998, for cold and sinus symptoms and for medication refills.  N.M. reported that she was taking Valium 5 mg. twice per day and Soma

    2 mg. twice per day.  She stated that she had anxiety and a herniated disc.  On Paskon’s patient information form, she stated that her occupation was “disabled,” and she listed Valium and Soma as her current medications.  Paskon’s assistant noted that N.M.’s complaints included back spasms and anxiety.  Paskon recorded recurrent lumbar back pain and muscle spasm pain among N.M.’s complaints.  Paskon examined N.M. and noted that she had pain across her lumbar spine with a radiation of pain to her right leg.  On the straight-leg raising test, raising her leg up to 75-90 degrees caused back pain.  Paskon marked the box for psychiatric exam and noted that she was alert.  Paskon noted that N.M. had an admission to the stress center in August 1998.  Paskon’s diagnoses included lumbar disc syndrome and lumbar back pain.  Paskon’s prescriptions included 120 mg. Soma to be taken four times per day and 40 Valium 5 mg. to be taken every six hours prn.  Soma is not a controlled substance.  It is used for muscle spasms and may be started in step one of pain management and then continued as an adjunct pain control therapy in step two or three.  Paskon prescribed the Valium partly based on her history and her statement that her previous doctor had prescribed it, but also as an adjunct therapy to control the muscle spasm. 

                49.  October 27, 1998:  N.M. saw Paskon for followup.  She complained of hot and cold sweats, but no dysuria (burning upon urination).  She also complained of nervousness and of hot flashes and sweating at night.  Paskon checked the box for psychiatric examination and noted insomnia and depression.  Paskon’s diagnoses included premenopausal syndrome and

     

     

     

    depression.  Paskon prescribed hormone therapy.  He did not prescribe more Valium, but instructed her to continue Valium prn. 

                50.  March 13, 2000:  N.M. saw Paskon for followup after she had been in a motor vehicle accident the previous week.  She had been a passenger in the vehicle and did not have a seat belt.  The left side of her chest hit the gear shift, creating a bleeding wound.  She was helicoptered to the hospital for treatment.  She suffered fractured ribs and a punctured lung.  The lung was aspirated, and a chest tube was inserted in her lung to remove fluid.  N.M. had gone to the emergency room atWashingtonCountyMemorialHospitalon March 12, 2000, for treatment of bleeding from her wound.  The ER doctor packed the wound with gauze.  She went to Paskon for removal of the gauze.  N.M. stated that she had been afraid to get into a car since the accident.  The box for psychiatric examination was checked, with a notation that N.M. was A&Ox3.  She was in a lot of pain.  Paskon’s diagnoses were left breast hematoma with drainage, status post motor vehicle accident (“MVA”), rib fracture, status post MVA, post pneumothorax, and post-traumatic stress disorder with phobic reaction.  Paskon’s prescriptions included 90 Oxycontin 20 mg., one to two every eight hours, 60 Oxy IR 5 mg., and 120 Ativan 1 mg. 

                51.  Ativan is the same as Lorazepam.  The manufacturer’s recommended daily dosage for Ativan is initially 2-3 mg. daily, with a range of 1-10 mg. daily. 

                52.  March 17, 2000:  N.M. complained that Oxycontin was too strong and that she wanted something different.  She stated that Demerol worked well for her.  She complained that her left hand tingled, had no strength, and hurt.  Paskon noted that she had a history of bipolar disorder, or manic depression.  Paskon did an incision and drainage on the wound.  Paskon diagnosed depression and hematoma of the left breast.  Paskon prescribed 60 Demerol 50 mg., one to two every six hours prn, Paxil 20 mg. to be taken in the evening, and Depakote 250 mg.

     

     

     

    twice per day.  Paxil, an antidepressant, is a selective serotonin reuptake inhibitor.  Paxil is not a controlled substance.  The Depakote was to stabilize the moods.  Paskon noted that she would have a CT scan of her neck to see if a disc problem in her neck was causing the tingling in her hand. 

                53.  March 20, 2000:  N.M. visited Paskon to have the wound rechecked.  She stated that she would like some muscle relaxers and nerve medicines.  She stated that her nerves were no better and that she wanted to try something else.  She still suffered from pain from her chest wound and had pain in her left hand at times.  On psychiatric examination, Paskon noted that she suffered from insomnia, nervousness, and frequent crying.[12]  Paskon drained the chest wound.  Paskon’s diagnoses included post-traumatic stress disorder, depression, and insomnia.  Paskon’s prescriptions included Ativan 2 mg. four times per day, Restoril 30 mg. at bedtime prn, and Paxil

    20 mg. twice per day.  Restoril is a sleeping pill. 

                54.  March 23, 2000:  N.M. complained of left shoulder pain radiating into her wrist.  She also stated that her chest wound was draining a lot and was sore.  She complained that she was not sleeping.  Breathing caused her constant pain with fractured ribs.  Paskon ordered tests, including an MRI of the cervical spine, and did an incision and drainage of the chest wound.  Paskon’s diagnoses included cervical disc syndrome and left cervical radiculopathy.  Paskon’s prescriptions included 120 Xanax 1 mg. four times per day.  Xanax was mainly for anxiety, but was also for depression and an adjunct therapy for muscle relaxing and pain control.  Xanax is quick acting, while Paxil takes many weeks to have an effect.  (Tr. 1119.) 

     

     

     

                55.  April 7, 2000:  N.M. complained that it still felt like her rib was sticking out and that she was unable to sleep due to pain.  Paskon noted insomnia and nervousness.  She still had drainage from the chest wound and complained of muscle spasms throughout her body.  Under physical examination, Paskon noted that she was alert, anxious, and had multiple complaints.  Paskon found that she talked a lot and made many complaints, which is typical of a person with bipolar disorder or mania.  Paskon noted that she had bipolar disorder.  The box for psychiatric examination was checked, and Paskon noted that she was afraid to ride in a car. Paskon’s prescriptions included pain medications, Paxil 20 mg. twice per day, and 120 Xanax 2 mg., half to one tablet to be taken every six hours prn.  Paskon also prescribed Ambien, a sleeping pill. 

                56.  April 21, 2000:  N.M.’s chest wound was still open and draining.  She still suffered rib pain and felt like her rib was sticking out.  Paskon noted that she was depressed, had insomnia and had a crying spell.  He noted that she had been afraid to get out of her home (agoraphobia) since the accident.  Agoraphobia is part of anxiety disorder.  Paskon noted that she had bipolar disorder.  Paskon reordered the MRI of the cervical spine, which had not been done.  Paskon noted that he was referring her back to Dr. Jimenez, who was her previous treating psychiatrist.  Paskon’s diagnoses included post-traumatic stress disorder and cervical disc syndrome with left radiculopathy.  Paskon did not write new prescriptions that day, but noted that she was to continue taking her medications, including pain medication, Xanax, and Paxil. 

                57.  May 1, 2000:  N.M. reported that she was involved in another motor vehicle accident on April 26, 2000.  She was not wearing a seat belt, and she hit the left side of her ribs and chest against the dashboard.  She complained of rib pain and her left chest pain worsening.  She also complained of back pain, had bruises all over, and was concerned about the appearance of her left breast.  On physical examination, Paskon noted that she was alert.  The box for psychiatric

     

     

     

    examination was checked.  Paskon noted that she had herniated lumbar disc syndrome in 1994-95.  N.M. rated her pain as 8/10 without medication and 2/10 with medication.  Paskon noted that the pain narcotic enabled her to go grocery shopping.  Paskon’s diagnoses included bipolar disorder and post-traumatic stress disorder (phobia reaction).  Paskon’s prescriptions included pain medication and 120 Xanax 2 mg. 

                58.  June 6, 2000:  N.M. rated her pain as 7-8/10 without medication and 4/10 with medication.  She complained that hanging clothes on the clothesline aggravated her rib pain, and that she had not had a pain-free day since the first accident.  Paskon noted that she had excessive complaints and was irritable.  On physical examination, Paskon noted that she was alert.  The box for psychiatric examination was checked.  Paskon noted that she was seeing Dr. Jimenez and had an appointment with Dr. Jimenez on June 9.  Paskon noted that N.M. was taking Paxil and Depakote, but he did not issue new prescriptions for these medications because she was going to see a psychiatrist soon.  Paskon noted that N.M. was also seeing Dr. Rutz, who was a psychologist.  Paskon’s diagnoses included anxiety reaction and post-traumatic stress disorder (phobia reaction).  Paskon’s prescriptions included pain medication and 90 Xanax 2 mg. 

                59.  July 10, 2000:  N.M. complained of nervousness and constant pain.  She complained that she had had chronic recurrent lumbar pain since she became disabled in 1993.  Paskon noted that she had a bulging disc and had pain shooting down her right leg.  She rated her pain as 8/10 without medication and 6/10 with medication.  Paskon noted that she had been seen by the

    St. LouisUniversityHospitalspine rehab unit, which recommended no surgical intervention.  On physical examination, Paskon noted that she was alert and anxious.  Paskon did a straight-leg raising test, which caused pain at 60 degrees.  Paskon’s diagnoses included lumbar disc syndrome with right side sciatica, anxiety reaction, post-traumatic stress disorder, and bipolar disorder.  Paskon’s prescriptions included pain medications, Paxil 20 mg. twice per day, and

     

     

    60 Xanax 2 mg. twice per day.  Paskon had reduced the Xanax from four times per day to three times per day, then to twice per day, and noted that he planned to gradually decrease the Xanax with a goal to discontinue it. 

                60.  July 31, 2000:  N.M. continued to experience breast pain and rib pain.  Under neuropsychiatric systems, Paskon’s assistant noted that N.M. had good days and bad days.  Under physical examination, Paskon noted that N.M. was alert.  The box for psychiatric examination was checked.  Paskon noted that N.M. was seeing Dr. Jimenez.  Paskon’s diagnoses included anxiety reaction and post-traumatic stress disorder.  Paskon prescribed pain medication and did not prescribe any psychotropics on that date. 

                61.  In June or July 2000, N.M. was arrested for unlawful possession of a controlled substance. 

                62.  August 30, 2000:  N.M. continued to experience back pain, and coughing caused left chest pain.  She reported that with pain medication she was able to stand longer than 15 minutes and was able to tolerate shopping.  Under neuropsychiatric symptoms, Paskon’s assistant noted that N.M. stated that she was getting better, but was up and down during the night.  The box for psychiatric examination was checked, and Paskon noted nervousness.  Paskon ordered an MRI of the lumbar spine.  Paskon’s diagnoses included anxiety reaction and post-traumatic stress disorder.  Paskon’s prescriptions included pain medication and 90 Xanax 1 mg. to be taken every six hours.  The Xanax was reduced from 2 mg. to 1 mg.  Paskon was reducing it because she was able to tolerate activities such as shopping.  Paskon no longer prescribed Paxil and Depakote because her psychiatrist prescribed those medications. 

                63.  N.M. had an MRI of the lumbosacral spine on October 9, 2000, which showed a herniated disc.  A copy of the report is in Paskon’s r
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    65.  November 17, 2000:  N.M. complained that she continued to experience back and rib pain and that the scar on her breast was sensitive.  N.M. complained that her nerves were bad and that she worried a lot.  Paskon noted that she was seeing Dr. Jimenez, who was prescribing Depakote and Lithium.  No copies of any records or communications from Dr. Jimenez appear in Paskon’s records for N.M.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included anxiety reaction and post-traumatic stress disorder.  Paskon prescribed pain medication, but did not prescribe any psychotropics on that date. 

                66.  December 18, 2000:  N.M. complained of back and rib pain and that she often worried.  Paskon’s diagnoses included anxiety reaction, and he did not prescribe any psychotropics on that date.

                67.  June 12, 2001:  N.M. complained of back pain and reported that she had tested positive for hepatitis C.  She had been around a lot of people with hepatitis C, had a professional tattoo, had a history of intravenous drug use, and had a blood transfusion within the previous year.  These were all possible sources of hepatitis C.  She reported that her nerves were bad and that she was worried since her diagnosis of hepatitis C.  Paskon ordered laboratory tests to confirm the diagnosis of hepatitis C.  On psychiatric examination, Paskon noted that she was

     

     

     

    A&Ox3.  Paskon’s diagnoses included anxiety and post-traumatic stress disorder.  Paskon’s prescriptions included Serax. 

                68.  At the June 12, 2001, visit, N.M. signed a pain management agreement with Paskon (Ex. 6 at 3-4), which provided in part: 

    I understand that if I break this Agreement, my doctor will stop prescribing these pain-control medicines. 

     

    *   *   *

     

    I will communicate fully with my doctor about the character and intensity of my pain, the effect of the pain on my daily life, and how well the medicine is helping to relieve the pain. 

     

    I will not use any illegal controlled substances, including marijuana, cocaine, etc.

     

    I will not share, sell or trade my medications with anyone.

     

    I will not attempt to obtain any controlled medicines, including opioid pain medicines, controlled stimulants, or antianxiety medicines from any other doctor.

     

    I will safeguard my pain medicine from loss or theft.  Lost or stolen medicines will not be replaced.

     

    I agree that refills of my prescriptions for pain medicine will be made only at the time of an office visit or during regular office hours.  No refills will be available during evenings or on weekends. 

     

    I agree to use _____ Pharmacy, located at ______, telephone number ____, for filling prescriptions for all of my pain medicine. 

     

    *   *   *

     

    I agree that I will use my medicine at a rate no greater than the prescribed rate and that use of my medicine at a greater rate will result in my being without medication for a period of time.

     

    I will bring all unused pain medicine to every office visit, and all empty medicine bottles.    

     

     

     

                69.  July 17, 2001:  N.M. returned for her laboratory results.  She reported that she ran her hand through a ringer washer a week and a half prior, and had gone to the ER but had no broken bones.  She continued to complain of back pain.  She reported that the Serax helped her nerves some, but that she was still lying awake at night and having problems sleeping.  She reported that she was seeing Mia Galioto, a psychiatrist, on July 23 and that she was stressed, but not really depressed.  She denied drinking or drug abuse.  On examination of the skin, Paskon’s assistant noted that N.M. had old needle track scars.  The box for psychiatric examination was checked, and Paskon’s assistant noted that she was A&Ox3.  Paskon’s diagnoses included anxiety, and his prescriptions included Serax.

                70.  N.M. visited Dr. Galioto on July 23, 2001.  A copy of Dr. Galioto’s notes from the visit is in Paskon’s records.  N.M. told Dr. Galioto that she drew disability for mental illness due to bipolar disorder.  Dr. Galioto noted that N.M. was referred to her by Paskon with complaints of bipolar disorder.  Dr. Galioto noted N.M.’s complaints that she had poor sleep and had difficulty falling asleep; she was paranoid and “Afraid to make the first step”; and afraid of large groups of people.  Dr. Galioto diagnosed major depressive disorder (“MDD”), and wrote “R/O Bipolar ds,” which meant that she would determine whether or not N.M. had bipolar disorder; i.e., whether she would “rule [it] out.”[1]  Dr. Galioto wrote “Pt. should be able to work.  Her mental condition keeps her able to function.  She should remain on meds and therapy.” 

    Dr. Galioto noted that N.M. was on Serax and pain medications from Paskon.  Dr. Galioto noted “Trials” of other medications as follows: 

    Depakote  Cannot use due to Hep C

    Ativan-worked well

    Lithium-did not like

    Paxil-did not help

    Trazodone  + worked

    Xanax  + worked

     

     

     

                71.  August 17, 2001:  N.M. complained of back pain.  She reported that she was seeing Dr. Galioto, who prescribed Neurontin, Celexa, and Trazodone.  She complained that she was not able to sleep at night.  On physical examination, Paskon noted that she was alert.  Paskon did not prescribe any psychotropics on that date. 

                72.  September 14, 2001:  N.M. stated that she wanted to go back on nerve pills.  She complained of nervousness and insomnia.  She continued to experience back pain and also complained of a dog bite behind her knee.  Paskon noted that she had a history of chronic anxiety disorder.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included anxiety disorder.  Paskon’s prescriptions included Serax and Trazodone.  The Trazodone was to help her sleep.   

                73.  October 16, 2001:  N.M. complained of back pain and that Trazodone and Serax were not working.  Oxazepam is a generic for Serax.  She complained that she had nervousness and bipolar disorder, that the medications were not helping her, and that she wanted to pull her hair out.  She had nightmares and woke up screaming in the night.  Paskon noted that she had post-traumatic stress from motor vehicle accidents and that she had bipolar disorder.  Under physical examination, Paskon noted that she was alert.  The box for psychiatric examination was checked.  Paskon noted nervousness and insomnia and that she appeared anxious and tense.  Paskon’s diagnoses included anxiety disorder and insomnia (nightmares).  Paskon’s prescriptions included pain medication and 90 Valium 10 mg. to be taken three times per day.  Paskon prescribed Valium because it was a stronger medication than what she had been taking and because it would help her sleep.  The Valium was also an adjunct therapy for her lumbar back pain.  Back pain aggravates insomnia and anxiety, and insomnia and anxiety aggravate back pain. 

                74.  On March 27, 2002, N.M. signed a release form for the Missouri Department of Corrections to receive her records from Paskon regarding treatment for hepatitis C.  On

     

     

    March 28, 2002, Paskon received a fax from the Women’s Eastern Reception andDiagnosticCorrectionalCenterinVandalia,Missouri, requesting the records. 

                75.  October 2, 2002:  N.M. returned to Paskon after nearly one year.  She reported that she was incarcerated from March through July 2002 for possession of controlled drugs not in the original container and for possession of a concealed weapon (a knife).  She complained of anxiety attacks and panic attacks.  She reported that she was arrested in June or July 2000, was in jail for 20 hours, and was released pending charges.  She told Paskon that she was arrested because she had Oxycontin tablets, which were not in the original bottle, in her purse.  Paskon accepted her explanation because people may routinely take one or two pills with them for convenience rather than carrying the whole bottle.  (Tr. 1235-36.)  She reported no history of drug abuse.  Paskon had her sign the pain management agreement again, under a handwritten notation that stated:  “Reaffirm pain management agreement.”  On physical examination, Paskon noted that she was alert.  Paskon checked the box for psychiatric examination.  Paskon noted nervousness and panic attacks and that she appeared anxious.  She denied depression at that time.  For diagnosis, Paskon wrote “see list.”  The list is written on the front page of his patient records for N.M. (Ex. 6) and includes anxiety disorder and post-traumatic stress disorder.  Paskon’s prescriptions included pain medication and 75 Valium 10 mg. 

                76.  November 7, 2002:  N.M. returned for a check and refills.  She complained of back pain and denied drug abuse.  On physical examination, Paskon noted that she was alert.  The box for psychiatric examination was checked.  Paskon noted nervousness and that she appeared anxious.  For diagnosis, Paskon wrote “see list.”  Paskon did not prescribe any psychotropics on that date. 

                77.  Paskon did not think N.M. was abusing drugs.  (Tr. 1189.) 


     

     

    Drug Enforcement Administration (DEA) Investigation

                78.  The DEA went to interview Paskon on March 30, 2000.  The DEA said that it had reports of some of Paskon’s patients selling drugs on the street.  Paskon asked who, but the agent would not give him any names.  At Paskon’s request, one of his patients had given Paskon a list of his patients who were allegedly selling drugs that they received from Paskon’s prescriptions.  The list included S.K., R.K., J.R., and A.R.[2]  R.K. was not even his patient at the time.[3]  Paskon provided this list to the DEA, but never heard any response back as to the results of their investigation.  (Tr. 893-900, 1188-91, 1229-35.)  The DEA asked Paskon to surrender his DEA certificate, but he refused.  (Tr. 1234.)  Paskon inquired of his patients who were on the list, and they denied any drug abuse or selling.  Paskon reviewed the records for each person on the list and found that they were not receiving an unusual amount of medication and that they had reason to receive the medication.  Some of the people on the list were not even his patients. 

                79.  Paskon had many patients because they were poor and had conditions such as chronic pain and anxiety, and he was willing to offer treatment for them when other doctors would not.  (Tr. 1232.)

                80.  Paskon had his pain management agreements in effect in an effort to prevent drug abuse or selling by his patients.  (Tr. 1232.)  He counseled his patients that they should not sell drugs on the street and would go to jail if they did.  He inquired whether they were selling drugs on the street.  (Tr. 1233.) 

    Count IV:  J.W.

                81.  J.W. suffered a rotator cuff tear in his right shoulder in 1996.  It was surgically repaired, and J.W. was out of work for approximately three months. 

     

     

     

                82.  J.W. was injured on July 15, 1999, while doing construction work.  J.W. was putting up a safety net two stories up.  The net weighs several hundred pounds, and it suddenly dropped, jerking J.W.’s left arm downward.  J.W. felt a tearing sensation in his left shoulder.  The ER placed him in an immobilizer and prescribed Indocin, but he experienced no pain relief. 

                83.  J.W. first sought treatment for his left shoulder injury from Dr. Hulsey on July 22, 1999, for purposes of a workers’ compensation claim.  Hulsey diagnosed left shoulder and rotator cuff strain.  Hulsey stated: 

    The downward jerk can cause damage to the rotator cuff as well as irritation to the muscles.  It is also possible that he could have a labral tear.  He is so tender at this time that it is difficult to examine.  I have recommended starting a physical therapy program at Farmington Hand and PT for the next two weeks.  He will focus on gentle range of motion.  He is placed on Ultram for pain relief and Celebrex for anti-inflammatory effect.

     

                84.  On August 5, 1999, Dr. Hulsey decided to order an MRI of the left shoulder and that J.W. should continue in physical therapy.  The MRI was performed on August 10, 1999, and showed: 

    1.  AC joint degenerative arthritis with secondary impingement at the musculotendinous junction of the supraspinatus.

     

    2.  No evidence of rotator cuff tear. 

     

                85.  J.W. saw Dr. Hulsey for followup on August 26, 1999.  Dr. Hulsey’s records state: 

    Physical Exam: 

    Actively he would elevate to 95 degree +, but with assistance and pressure I could get him up to 150 degrees, and external rotation was to 75 to 80 degrees, but with a great deal of encouragement and pressure.  There was no popping or crepitation, only limited range of motion.  He felt stable.  His strength was 3+/5 when testing the rotator cuff muscles.  There is no atrophy noted or winging. 

    XR: 

    His MRI was reviewed.  There are some degenerative changes at the AC joint, which may cause some mild impingement.  However,

     

     

     

     

    the rotator cuff is intact.  There is no evidence of a partial or full thickness tear.  The labrum is well seen and appears normal.

    Impression:

    Rotator cuff strain and impingement syndrome, left shoulder.

    Recommendation:

    His pain is somewhat out of context for what we see on the MRI.  He states that on his right shoulder they did not pick up any abnormalities on the MRI, and it was only after an arthrogram and arthroscopy that his tear was seen.  However, his MRI appears to be of excellent quality without significant tearing. 

     

    We injected the shoulder with Depo-Medrol and Marcaine.  I think we need to continue aggressive physical therapy for the next three to four weeks.  If at that time he truly has not improved, then an arthroscopy of the shoulder may be needed.  Most of his pain is consistent with rotator cuff irritation, but again the severity is somewhat out of context based on his radiographic findings. 

     

    The patient was given a prescription for Indocin and Darvocet. 

     

                86.  J.W. visited Dr. Hulsey for followup on September 23, 1999.  Dr. Hulsey’s records state:

    Physical Exam:

    He appears fairly comfortable, but keeps his arm close to his side.  His range of motion is to 90 degrees easily and with a lot of pressure up to 120 degrees. However, he resists any motions above horizontal.  External rotation with the arm at the side is 30 degrees.  He has 4/5 strength to the supra and infraspinatus, though he complains of pain.  I do not detect any crepitation, although, he complains of a great deal of popping and grinding.  It is almost impossible to test instability, though, clinically he keeps the arm at the side and normally not in position to even stress the capsule.

    Impression:

    Rotator cuff strain left shoulder.

    Recommendation:

    His pain level is out of context for the findings on MRI.  However, he did have a rotator cuff tear on the right which he states was very similar.  I recommended obtaining an arthrogram with a CT scan to evaluate the rotator cuff again on the small chance the MRI could show a false-negative.  I have given him another prescription for Indocin and Darvocet.  The test will be performed at Missouri Baptist.

     

     

     

     

    87.  On October 28, 1999, J.W. saw Dr. Hulsey for followup.  Dr. Hulsey’s records state: 

     

    Interval History:

    [J.W.] returns today and continues to complain of unrelenting pain which he rates as a 10/10 with certain movements.  He has not been back to work.  I did not refill his narcotic two weeks ago.  He complains of pain even at rest, but especially when elevating the arm.  Most of the discomfort is over the lateral shoulder, but it does radiate down the forearm.

    Physical Exam:

    His range of motion with a great deal of encouragement is normal.  He complains of pain with movement, especially about 90 degrees.  Impingement signs were positive, though this is a very nonspecific test.  His strength is 4/5, including all of the rotator cuff muscles, and there is no crepitation.  He is not grossly unstable.  He is minimally tender over the AC joint. 

    XR:

    His arthrogram CT was reviewed.  This was normal except for the degenerative changes of the AC joint.  There was no evidence of any rotator cuff defect or labral tear. 

    Impression:

    1.  Impingement syndrome, left shoulder.

    2.  AC joint arthrosis.

    Recommendation:

    The impingement pain can cause discomfort, especially with the type of movements he describes.  However, his severity of discomfort is out of context for what we see both clinically and radiographically.  There is no evidence of atrophy.  Strength is relatively normal when tested.  The spurring and arthritis at the AC joint is preexisting.

     

    He was placed on Vioxx.  I think we need to increase his activity.  If he is unable to tolerate this, a trial with work hardening is indicated.  I am concerned about symptom magnification.  I would be very hesitant to recommend any type of arthroscopic procedure at this time.

     

                88.  On November 15, 1999, Paskon examined J.W. to determine if he qualified for medical assistance from the Missouri Department of Social Services.  On that date, J.W. went to Paskon solely for that purpose and not for treatment.  J.W. had pes planus (flat foot) in his right foot and had had five previous fusion surgeries on his foot.  The surgeries were unsuccessful.  Paskon noted that the hardware was migrating through the skin.  J.W. complained that he was

     

     

    unable to walk more than ten feet due to pain in the foot.  The fusion surgery involves breaking apart the arch of the foot, putting in screws, and using bone fusion to reconstruct the arch.  The operation has a very high failure rate, and the arch fell again after each surgery on J.W.  The issue was complicated by J.W.’s size and weight.  J.W. also had left shoulder pain due to osteoarthritis.  J.W. previously had surgery to repair a torn rotator cuff in his right shoulder due to a work injury, and he continued to experience pain.  J.W. complained that he was unable to carry more than five to ten pounds due to shoulder pain.  J.W. had a hernia in his abdomen.  J.W. had a history of heroin abuse for 15 years and had been in the penitentiary, but had been clean for the last five years.  Paskon conducted a physical examination.  Paskon’s nurse practitioner noted that J.W. had limited flexion and dorsiflexion[4] in his right ankle, multiple scars on the lateral aspect of the right foot, pain along the lateral malleolus[5] of the right foot, decreased range of motion and pain in the left shoulder, and limited range of motion and pain in his right shoulder.  Paskon added a handwritten note that J.W. had stiffness in the left shoulder.  Paskon diagnosed osteoarthritis at multiple sites, right foot pain, left shoulder pain, right shoulder pain, and ventral hernia.  The medications that J.W. was taking included Vioxx 25 mg., Darvocet N 100 mg., Flexeril 10 mg., Ultram 50 mg., and Xanax .5 mg.  Paskon marked X’s in the boxes on the Department of Social Services’ form indicating:

    DETERMINATION OF INCAPACITY:  In my opinion this individual [X]has . . .  a mental and/or physical disability which prevents him from engaging in that employment or gainful activity for which his/her age, training, experience or education will fit him/her. . . .

     

    DURATION OF INCAPACITY:  In my opinion the expected duration of disability/incapacity will be . . .  [X] 12 or more months. 

     

     

     

    The objective findings, such as scars from prior surgeries to J.W.’s right foot, right elbow, and right shoulder, were evident to Paskon upon examination. 

                89.  On February 9, 2000, Dr. Berkin examined J.W. for the purpose of providing a disability rating relating to J.W.’s left shoulder injury.  Dr. Berkin examined J.W. and reviewed Dr. Hulsey’s records, as well as the MRI report and arthrogram that Dr. Hulsey had reviewed.  Dr. Berkin prepared a report on April 15, 2000, stating: 

    PHYSICAL EXAMINATION

     

    *   *   *

     

    Examination of the neck revealed a normal cervical curve without deformity.  In the sitting position, the shoulders appeared level and the head appeared in the midline.  There was tenderness to palpation over the left paraspinal muscles of the neck that extended from the level of C3 to C7.  There was no palpable muscle spasm noted.  Range of motion of the cervical spine is as follows: 

     

    Flexion:        35 degrees         Normal:  45 degrees

    Extension:    30 degrees         Normal:  45 degrees

    Right rotation:  60 degrees     Normal:  80 degrees

    Left rotation:  60 degrees       Normal:  80 degrees

    Right lateral flexion:  35 degrees   Normal:  45 degrees

    Left lateral flexion:  30 degrees    Normal:  45 degrees

     

    Examination of both upper extremities revealed normal muscle tone without swelling or muscle wasting.

     

    Examination of the left shoulder revealed moderate tenderness to palpation over the anterolateral surface. Stressing the left shoulder failed to demonstrate any joint instability but the patient complained of pain to his left arm on passive circumduction.  Deep tendon reflex testing of both upper extremities revealed normal biceps, triceps and brachioradialis reflexes bilaterally.  The impingement test was positive.  On muscle strength testing, the [sic] was weakness of the left arm on abduction and flexion at the shoulder against resistance.  Examination of the left hand revealed swelling over the dorsal surface.  There was no tenderness over the left hand and there was full range of motion of the fingers.

     

    Examination of the right arm revealed a 5 cm scar over the anterior surface of the right shoulder.  There was tenderness over the right

     

     

     

    shoulder that was localized over the anterolateral surface.  The patient complained of pain to his right arm on passive circumduction at the shoulder.  Range of motion of both shoulders is as follows: 

     

    Abduction:  Left:  115 degrees    Right:  130 degrees  Normal:  150 degrees

    Adduction:  Left:  20 degrees      Right:  30 degrees   Normal:  30 degrees

    Flexion:   Left:  100 degrees   Right:  130 degrees     Normal:  150 degrees

    Extension:  Left:  20 degrees  Right:  30 degrees        Normal:  40 degrees

    Internal rotation:  Left:  30 degrees   Right:  40 degrees  Normal:  40 degrees

    External rotation:  Left:  70 degrees  Right:  80 degrees  Normal:  90 degrees

     

    Examination of the right elbow revealed a 10 cm scar over the lateral surface.  There was tenderness to palpation over the right elbow that was localized over the posterior surface.  Range of motion of the right elbow is as follows:  

     

    Flexion:    140 degrees         Normal:  150 degrees

    Extension:  15 degrees          Normal:  0 degrees

     

    Range of motion of the left elbow was normal. 

     

    The patient is right handed.  Grip strength of both hands measured in kilograms with the hand grip dynamometer is as follows: 

     

    Trial 1:  Right hand  32          Left hand  17

    Trial 2:  Right hand  33          Left hand 18

    Trial 3:  Right hand 31           Left hand 14

     

    Examination of the right foot and ankle revealed an 11 cm scar over the anterolateral surface of the right foot.  Observing the patient ambulate, he walked in a normal gait without evidence of a limp.  There was tenderness over the right foot that was localized over the anterolateral surface that extended into the right ankle.  Range of motion of the right ankle is as follows: 

     

    Flexion:   10 degrees     Normal:  40 degrees

    Extension:  5 degrees    Normal:  20 degrees

     

    *   *   *

     

     

     

     

    FINAL IMPRESSION

     

    1.  Rotator cuff strain of the left shoulder with impingement syndrome.

    2.  Cervical strain.

     

    CONCLUSION

     

    *   *   *

     

    The patient presents with complaints of pain and tenderness to his left shoulder and rates his degree of pain at a level of eight (8) on a scale of 1-10.  He complains of pain to the left side of his neck and reports limited motion of his shoulder.  He complains of swelling to his left hand and weakness to his left arm. 

     

    DISABILITY RATING

     

    Based on the medical history provided to me by the patient, a review of the medical records that were furnished to me and my physical examination, I feel within a reasonable degree of medical certainty that the patient’s July, 1999 injury has resulted in the following permanent partial disabilities: 

     

    1.  A permanent partial disability of 20% of the left upper extremity at the level of the shoulder for the rotator cuff strain of the left shoulder associated with an impingement syndrome;

    2.  A permanent partial disability of 10% of the body as a whole at the level of the cervical spine for the cervical strain.

     

    With respect to the prior injury to his right foot, I feel the patient has a permanent partial disability of 40% of the right lower extremity at the level of the ankle.

     

    For the previous fracture to his right elbow, for which the patient underwent surgery for repair, I feel the patient has a permanent partial disability of 30% of the right upper extremity at the level of the elbow.

     

    For the previous injury to his right shoulder, for which he underwent surgery for a rotator cuff tear, I feel the patient has a permanent partial disability of 35% of the right upper extremity at the level of the shoulder.

     

    In conclusion, I feel that these pre-existing disabilities combine with the disability to his neck and left shoulder resulting from his

     

     

     

     

    July, 1999 injury to create an overall disability that exceeds the sum of his individual disabilities when added together. 

     

                90.  J.W. returned to Paskon on March 30, 2000, approximately four and a half months after his previous visit to Paskon, because he qualified for Medicaid and his previous doctor,

    Dr. Katz, would not accept Medicaid patients.  J.W. was 6’ 1” and weighed 247 pounds.  Copies of Dr. Hulsey’s records are in Paskon’s file for J.W., although it is not entirely clear when Paskon received them.  For medications that J.W. had taken, Paskon’s assistant wrote “See list” from the previous visit.  On his health history, J.W. noted that he was taking Roxicodone 5 mg., Diazepam 10 mg., and Amitriptyline (Elavil) 25 mg.  J.W. complained of headaches and dizziness.  He reported that his nervousness was relieved by Valium and that he had been on Valium or Xanax for anxiety attacks for ten years.  He complained of panic attacks and of insomnia due to pain.  Paskon checked the box for psychiatric examination and noted that J.W. was nervous and anxious.  Paskon noted that J.W. had shoulder pain due to the accidental injury at work moving a safety net two stories up.  Paskon noted that Dr. Katz had prescribed Vicodin to control the pain.  Paskon also noted that J.W. previously had a repair of the torn rotator cuff on his right shoulder.  Paskon noted that J.W. had right foot pain from the fusion of the pes planus and walked with a limp on his right foot and leg.  Paskon noted that J.W. had received physical therapy for 12 weeks without any improvement.  Paskon noted that J.W. had a limitation of left shoulder movement and that he should return to orthopedics.  J.W. had swelling of his left hand and left forearm.  On physical examination, Paskon noted that J.W. was alert.  Paskon’s diagnoses included tendonitis of the left shoulder, osteoarthritis, right foot pain, and anxiety reaction.  Paskon’s prescriptions included 90 Valium 10 mg. to be taken every six hours prn;

    60 Vicodin ES to be taken every six hours prn, Elavil 25 mg. one at bedtime for the first week and two at bedtime after the first week, and Esgic Plus every six hours prn (same as Fioricet).   

     

     

    J.W. had been on Darvocet, Ultram, and Vioxx, but they were ineffective to relieve his pain, so Paskon moved up to step 2.  Elavil (Amitriptyline) is an antidepressant, but may also be an adjunct therapy for pain control.  Paskon prescribed the Elavil to J.W. for the depression, to help with the headache, and to help with the insomnia.    

                91.  On April 24, 2000, J.W. returned to Paskon.  Paskon noted that J.W. had seen Dr. Berkin three months prior.  Dr. Berkin’s records are in Paskon’s file for J.W., but it is not clear when Paskon received them.  Paskon noted that J.W. had right foot and left shoulder pain and a torn ligament in the left shoulder.  Paskon noted that the left hand, wrist, and shoulder were stiff and that he had finger muscle atrophy.  J.W. rated his pain as 9-10/10.  He stated that the Vicodin brought his pain to 6-7/10.  J.W. complained that he had constant pain when walking and that it felt like he was walking on a nail.  The box for psychiatric exam was checked.  Paskon diagnosed injury, tendonitis or encapsulitis (freezing up) of the left shoulder, contracture of the left hand and finger, pes planus of the right foot, anxiety reaction and depression, and chronic intractable pain.  Paskon prescribed 90 Oxycontin 20 mg. to be taken one every eight hours,

    60 OxyIR to be taken one every six hours prn, 90 Valium 10 mg. to be taken three times per day, and Elavil 75 mg. to be taken one at bedtime.  Paskon referred J.W. to Dr. VanNess, an orthopedist. 

                92.  Dr. VanNess examined J.W. on May 11, 2000.  Dr. VanNess wrote a letter to Paskon stating: 

    I saw [J.W.] today.  He is evaluated for left shoulder injury. . . . Eventually treated by Dr. Hulsey with recommendations arthroscopy of the shoulder given due to an MRI documentation impingement of the supraspinatous at the AC joint with degenerative arthritis [sic].  However there is apparently no approval for his shoulder arthroscopy and he was eventually then discharged from Dr. Hulsey’s care. 

     

     

     

     

    At this point he would like additional opinions regarding his left shoulder since it is still not improved and he is continuing to have pain with interference with activities of daily living and function. . . .

     

    Physical exam reveals left shoulder impingement through a range of motion.  Grade IV/V rotator cuff testing with no gross weakness identified.  There is a horizontal sheer testing positive and tenderness at the AC joint.  X-rays are repeated today and compared to last year, consistent with ongoing degenerative change about the AC joint.  Otherwise normal underlying bony architecture.

     

    Recommendations:  For subacromial impingement is for injection [sic].  After sterile posterior prep, Marcaine and Celestone 2 ccs injected into the left shoulder.  He is encouraged to continue with activities of as tolerated [sic] and follow-up in three months, continuing a home exercise program in the interim time for further discussion and recommendations upon next follow-up. 

     

                93.  Friday, May 19, 2000:  Paskon’s assistant noted that J.W. saw Dr. VanNess and got a cortisone shot.  The assistant noted that J.W. had an MRI and X ray, which showed a bone spur on the rotator cuff.  The assistant also noted that J.W. was having surgery on his left shoulder and would discuss the time on May 26.  The assistant noted that J.W. had intractable pain in his right foot and left shoulder, and that Oxycontin helped to control the pain to a level of 3/10.  J.W. reported his pain as 10/10 without the medication.  The assistant noted that J.W. had a history of right foot fusion and internal fixation, and that Dr. VanNess might do a bone graft.  The assistant noted that Valium controlled J.W.’s nerves well.  Paskon noted that J.W. had been on Valium for seven to eight years.  The assistant noted that J.W. occasionally took Elavil to help him sleep.  Paskon noted that J.W. was waiting for a determination of whether he had a disability.  J.W. was told to continue his medications and return to the office for followup.  Paskon noted that there were no needle tracks on J.W.’s forearm.  Paskon’s assistant noted that J.W. had limited movement in his right ankle and held his left arm bent at the side.  Abduction of the left arm caused pain at 80 degrees, and abduction of the right arm caused pain at 110 degrees.  Paskon’s

     

    assistant also noted that J.W. had swelling in his left hand.  Paskon noted that J.W. had a deformity of the right foot with constant pain.  Paskon’s diagnoses included multiple osteoarthritis, post right rotator cuff repair, left rotator cuff spur, anxiety reaction, right foot pain due to pes planus, and five foot surgeries in the past.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 60 OxyIR to be taken every six hours prn, and 90 Valium 10 mg. to be taken three times per day.  Paskon also prescribed Sinequan, which is similar to Amitriptyline.  Sinequan was intended to relieve J.W.’s anxiety and help prevent migraine headaches from recurring.  Paskon also ordered a walking cane to assist J.W. with ambulation. 

                94.  June 2, 2000:  Paskon’s assistant noted that J.W. had shoulder pain from a spur growing into his rotator cuff and needed surgery.  J.W. reported that he was not sleeping.  Paskon noted that J.W. had intractable pain in his left shoulder and that his pain without medication was 10/10.  J.W. reported that his pain with medication was 3/10.  J.W. had doubled the dose of Oxycontin from the 20 mg. that Paskon had prescribed to 40 mg.  Because J.W. had been a heroin addict, he had a very high tolerance for pain narcotics.  Paskon noted that there were no needle tracks on J.W.’s forearm.  Paskon diagnosed shoulder injury, tear of rotator cuff, tendonitis, bursitis in the left shoulder, right foot osteoarthritis and pes planus, and anxiety reaction.  Paskon prescribed 90 Oxycontin 40 mg. to be taken every eight hours, 60 Lorcet 10/650 to be taken every six hours prn (not in complaint), 90 Valium 10 mg. to be taken three times per day, Arthrotec 50/200 to be taken three times per day, and Doxepin 75 mg. to be taken at bedtime.  Doxepin is a generic for Sinequan.  The Lorcet was for breakthrough pain.   Arthrotec is an NSAID like Motrin, and it was prescribed for arthritis ache and pain and as adjunct therapy.  Paskon noted that Dr. VanNess scheduled J.W.’s left shoulder surgery.  Paskon believed that doubling the dose of Oxycontin was reasonable for J.W.’s complaints.  If a physician stops prescribing a medication, the patient could go into withdrawal and experience symptoms such as nausea, vomiting, and cramping.    

     

                95.  There is no maximum daily dosage for Oxycontin, but doctors usually do not prescribe more than 320 mg. per day.  Oxycontin comes in an 80 mg. tablet, but Paskon did not prescribe that to J.W. 

                96.  June 14, 2000.  J.W. complained of swelling in his eyes, hands, and feet, and he thought this was a reaction to the Lorcet.  J.W. complained that he was not sleeping well.  J.W. rated his pain as 3/10 with the medicine.  Paskon referred him back to Dr. VanNess for right foot and left shoulder surgery.  Paskon noted that there were no needle tracks on J.W.’s arms.  J.W. complained that Oxycontin 40 mg. was too strong for him and caused weakness, drowsiness, and nausea.  Paskon did not believe that this was cause to discontinue the medication.  Instead, he lowered the dose.  Paskon diagnosed osteoarthritis and tendonitis in the right foot, left shoulder injury, and rotator cuff tear.  Paskon prescribed 90 Oxycontin 20 mg. every eight hours and 60 OxyIR every six hours prn. 

                97.  June 26, 2000.  J.W. stated that Dr. VanNess was doing the shoulder and foot surgery the next month.  He complained that he was walking and turned his ankle, causing swelling of the foot around the pin area.  He complained that he was not sleeping well and had lots of anxiety, stress, and nervousness.  Paskon’s assistant noted that J.W. was unable to abduct his shoulder more than 50 degrees, that there was no internal rotation, and that muscle strength was 3/5.  The assistant also noted that J.W. had tenderness and swelling in his ankle.  The assistant also noted that J.W. wanted to wean off of Valium and depression medicine.  J.W. had been doubling up on Oxycontin, taking two 20 mg. tablets every eight hours, and found OxyIR ineffective.  He stated that he had taken morphine and Demerol in the past to control his pain.  He rated his pain as 10/10 without medication and 3/10 with medication.  Paskon noted that the patient was instructed not to overmedicate himself.  Paskon noted that there were no needle tracks on J.W.’s arms.  Paskon prescribed 60 Percocet 10/650 every six hours, and 30 Paxil

     

    20 mg. four times per day with five refills.  Paskon also prescribed 90 Valium 10 mg. three times per day with a note to gradually decrease Valium with a goal to discontinue it.  Paskon’s records reflect that the dosage of Oxycontin was to be increased to 80 mg.  Paskon testified that he did not prescribe 80 mg. on June 26.[6]

     

     

     

                98.  July 10, 2000:  J.W. stated that he needed a referral for his right foot operation.  J.W. stated that he had doubled the 40 mg. dose of Oxycontin (as ordered by Paskon on June 26), but found that Oxycontin 80 mg. was too strong and caused nausea and constipation.  J.W. was walking with a cane due to the foot pain.  J.W. rated his pain as 10/10 without medication and 2/10 with medication.  J.W. complained that OxyIR failed to relieve his breakthrough pain.  J.W. had neuropathic pain in his right foot, which was very sensitive to the touch, because it had been cut so many times.   Paskon diagnosed right foot osteoarthritis and tendonitis, pes planus deformity and post arthrodesis (fusion), and right shoulder rotator cuff tear.  Paskon noted that J.W. needed shoulder surgery and reconstruction and refusion of the right foot.  Paskon referred him to Dr. VanNess.  Paskon noted that there were no needle tracks on J.W.’s arms.  Some abusers of Oxycontin know how to melt it and shoot it in the veins, and Paskon was making sure that J.W. did not do that.  Paskon instructed J.W. to continue the Valium and Elavil.  Paskon prescribed 90 Oxycontin 40 mg. every eight hours and Neurontin 300 mg. twice per day.  Neurontin was for neuropathic pain.  

                99.  Between April 24, 2000, and July 10, 2000, Paskon prescribed 270 Oxycontin 20 mg. tablets and 90 Oxycontin 40 mg. tablets to J.W., and this averaged approximately 4.5 tablets per day.[7]

                100.  July 21, 2000:  J.W. reported that he had his shoulder done, and needed a referral to Dr. VanNess to have his foot done because he had an appointment on August 3.  J.W. complained that his pain was worse:  10+/10 without medication and 2-3/10 with medication.  Paskon’s assistant noted that the patient was told to bring his medications in at his next visit.  Paskon was attempting to track how much medication that J.W. had in his possession.  Paskon

     

     

     

    noted that J.W. would be referred back to Dr. VanNess.  Paskon noted that there were no needle tracks on J.W.’s arms.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours and 60 OxyIR to be taken every six hours prn. 

                101.  July 26, 2000:  J.W. complained that the Oxycontin 20 mg. and OxyIR were not helping and that he wanted Oxycontin 80 mg. instead.  J.W. reported that he had seen Dr. VanNess.  J.W. reported that his pain was intolerable:  10+/10 without pain medication and 10/10 with pain medication.  Paskon’s assistant noted that the patient was requested for the second time to bring his medications to his next appointment.  Paskon noted that there were no needle tracks on J.W.’s arms and that he was to see the orthopedist on August 3.  Paskon prescribed 90 Oxycontin 80 mg. to be taken every eight hours, and Motrin 800 mg. to be taken three times per day.  The Oxycontin prescription was not filled. 

                102.  August 8, 2000:  Paskon’s assistant noted that J.W. brought in all of his medications that day.  J.W. reported that his left shoulder pain and right foot pain were increasing.  He rated his pain as 10+/10 and stated that it felt like a nail was sticking in his shoulder muscle and bone.  He reported that Oxycontin 20 mg. failed to relieve his pain and that he took 80 mg. at night.  Paskon noted that his pain was partially controlled with Oxycontin, that he was able to use his left arm more with more flexibility, and that he was resting better at night.  Paskon also noted that the pain medication relieved the throbbing pain in J.W.’s right foot and that he was able to function better.  Paskon noted that J.W. could not tolerate the pain without pain medication.  Paskon noted that J.W. had a left shoulder injury on July 15, 1999, and suffered an avulsion fracture of his left shoulder bone and a tear of his rotator cuff.  Paskon prescribed 60 Oxycontin 40 mg. to be taken every eight hours, 60 Percodan to be taken every six hours, 60 Valium 10 mg. to be taken every six hours prn, 90 Neurontin 300 mg., and Depakote 250 mg. to be taken three times per day.  Paskon’s diagnoses included avulsion of bone. 

     

     

                103.  August 21, 2000:  J.W. reported that he had a reaction to the Neurontin and passed out, which worsened his left shoulder injury.  He stated that he was trying to get off of Oxycontin because it caused nausea, upset stomach, and nervousness.  He rated his pain as 10+, which was reduced to 2-3 with Oxycontin and Percodan.  He reported that his right foot refusion was scheduled for the end of August and that he was going to court for a workers comp claim for his left shoulder injury.  J.W. wanted to gradually wean himself off of Oxycontin.  Paskon prescribed 60 Oxycontin 20 mg. to be taken every eight hours.  He did not discontinue Oxycontin because he did not want J.W. to go into withdrawal.  Paskon discontinued the Fioricet for migraine headaches. 

                104.  Paskon found that patients increased the dosage on their own if necessary to control their pain. 

                105.  On August 24, 2000, J.W. saw Dr. VanNess.  Dr. VanNess’ report stated: 

    He is evaluated for right foot pain.  He has had 4 previous surgeries and continues to have painful ambulation.

    PHYSICAL EXAMINATION:  Consistent with the pes planus deformity, rigid hind foot and neurocirculatory exam intact with no instability.  X-rays are consistent with previous triple arthodesis and one retained staple in the dorsum of the foot.  The evaluation of the remaining parts of the lower extremity includes [sic] knee and ankle motion are normal. 

    ASSESSMENT:  Pes planus with painful ambulation.

    RECOMMENDATIONS:  Orthodics in order to support the arch and he would like to arrange for this service, we can fit him for an orthodic insert to decrease his discomfort. 

     

    Dr. VanNess’ X ray report stated:

     

    RIGHT FOOT:  3 views of the right foot reveal previously noted triple arthrodesis with a retained dorsal staple.  No other sign of fracture or dislocation.

    ASSESSMENT:  Post-surgical changes of the right foot, consistent with previous triple arthrodesis.  

     

     

     

     

                106.  September 6, 2000:  J.W. reported that he was going to court on September 8 for his workers’ compensation claim.  J.W. complained of nervousness and appeared tense.  J.W. reported that his left shoulder pain was 10, right foot pain was 10+, and left elbow pain was 6.  Paskon’s diagnoses included chronic intractable pain and anxiety reaction.  Paskon prescribed 60 Oxycontin 40 mg. to be taken every 12 hours, 60 Percocet 10/650 to be taken every six hours prn, and 90 Valium 10 mg. to be taken every six hours. 

    107.  J.W. signed a pain management agreement with Paskon on September 6, 2000. 

     

                108.  On September 15, 2000, an Administrative Law Judge of the Social Security Administration issued a decision on J.W.’s disability claim, stating: 

    The claimant alleged disability on the basis of an injury to his left shoulder on July 15, 1999, stating that he had been treated for a rotator cuff injury to his right shoulder about two or three years before that.  He alleged constant pain in the shoulders, and also in his wrists, feet, collarbone and elbows.  He stated that he had recurring swelling of his hands and feet, and that he needed a cane to walk.  He also alleged anxiety and depression.  The claimant testified that his medications produced drowsiness and dizziness that affected his ability to drive safely.  He said that he had pain when bending, and that he could sit only an hour at a time on a “good day.”  He was able to do his own housework and cooking. 

     

    Prior to the request for hearing in this case, medical consultants with the State disability determination service made assessments regarding the nature and severity of the claimant’s impairments, and concluded that the claimant had physical and/or mental capabilities greater than those being established according to the findings in this decision.  The findings by these consultants are part of the record in this case, and are considered expert opinion on the issue of the claimant’s medical capabilities and limitations.  Social Security Ruling 96-9.

     

    However, the Administrative Law Judge is not bound by the findings made by the State agency consultants.  The opinions of treating and examining physicians or psychologists are commonly extended greater weight in disability decisions because those persons have actually examined the claimant and usually have at least as much relevant medical expertise as do the State agency consultants.  The opinion of a treating physician, especially, is

     

     

    usually entitled to greater weight in the decision-making process because of the length, nature and extent of the treatment relationship with the claimant.  20 CFR 416.927. Also, at the hearings level the responsibility for deciding a claimant’s residual functional capacity rests with the Administrative Law Judge (20 CFR 416.916), who in most cases has access to medical reports and opinions and to live testimony which were not available to the State agency consultants and which often suggest a more restricted medical capacity than that established at the initial and reconsideration determination levels. 

     

    The medical evidence does not establish any impairment or combination of impairments that meets or equals in severity the requirements of any impairment listed in Appendix 1, Subpart P, Regulations No. 4.  The claimant is not physically disabled, even though most of the medical evidence in the record relates to physical allegations.

     

    The claimant had emergency room attention on July 15, 1999 for what was diagnosed as a left shoulder strain.  X-rays of the shoulder showed only minor degenerative changes and spur formation.  Dr. Richard Hulsey, whom the claimant saw for outpatient treatment between about July 22 and November 18, 1999, recommended physical therapy and a sling for the claimant.  An MRI of the left shoulder in August 1999 showed degenerative changes and possible impingement, but no rotator cuff tear.  The claimant had emergency room attention for a sprained right fifth finger on September 27, 1999, a problem that resulted in no long-term limitations or complications.  A left shoulder arthrogram on October 5 indicated some acromioclavicular osteoarthritis, but was otherwise normal.  Dr. Hulsey prescribed Vioxx for what he said was an impingement syndrome on October 28, but as of November 18 he was advising the claimant to be active, and he said that the claimant had no physical limitations at that point.  Dr. Harry Katz, another attending physician, placed no physical limitations o

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    on the claimant as of November 26, 1999, except to avoid more than light lifting or carrying (Exhibits 17-21, 23).

     

    The claimant had recurring treatment for complaints of bilateral shoulder pain and right foot pain between October 1999 and July 2000, but no significant limitations were observed at the time of a consultative physical examination on December 13, 1999.  There was some suggestion of a history of hepatitis C at that time, but no sign of active disease.  As recently as May 2000 a left shoulder x-ray showed only mild AC joint hypertrophy.  The claimant did not start using a cane until that month (Exhibits 25, 28, 30).  The record fails to identify any frequent swelling of the hands or feet, or any significant problem involving the elbows, wrists or

     

     

    collarbone.  It also fails to identify significant adverse side effects from medications. 

     

    The record contains several instances of the claimant being declared disabled for the purpose of qualifying him for public assistance in the State ofMissouri(Exhibit 22).  These findings are not entitled to great weight in this proceeding despite the similar wording of theMissouristandard with the Social Security Act’s definition of disability.  It is common knowledge that theMissouristandard in practice is quite lenient.  Medical examinations leading to the assessment are often not extensive, and are often based on subjective allegations by the claimant or old or marginally documented medical records.  The Social Security Administration operates under statutes, regulations, rules and guidelines which are separate and distinct from those applied by other governmental agencies and non-governmental entities, and a finding of disability under a different program by a different source is not binding upon the Social Security Administration.  20 CFR 416.904.

     

    If physical impairments alone were at issue, the claimant would be capable of probably a full range of at least light work.  Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.  20 CFR 416.967(b).  This residual functional capacity would allow the claimant to perform at least some of his past relevant jobs as he described them, some of which were performed for substantial earnings within the last 15 years, and which would therefore still be vocationally relevant under 20 CFR 416.965 (see Exhibits 8-9).  Therefore, the claimant would be not disabled according to 20 CFR 416.920(e).

     

    The claimant is disabled on the basis of severe anxiety related to pain and physical limitations, however.  Kenneth G. Mayfield, who performed a consultative psychological examination of the claimant on December 9, 1999, stated that the claimant’s ability to handle daily functions and to relate socially was intact despite indications of increasing social isolation and constriction of habits.  He was able to care for personal needs and handle simple tasks, but his capacity for sustained concentration and attention appeared somewhat limited.  His ability to cope with the stress and pressures of routine work activity appeared highly questionable (Exhibit 24).  This indicates a mental capacity for no sustained work activity, even at simple tasks.  The claimant is disabled by this mental illness.  It has existed since at least November 18, 1999, the filing date of the current application.  Because of the chronic nature of this mental condition, this degree of severity can be expected to last for a continuous period of at least twelve months beyond that date. 

     

     

     

    FINDINGS

     

    After careful consideration of the entire record, the Administrative Law Judge makes the following findings:

     

    1.  The claimant’s current application for supplemental security income was protectively filed November 18, 1999.

     

    2.  The claimant has not engaged in substantial gainful activity since November 18, 1999.

     

    3.  The medical evidence establishes that the claimant has mild and chronic impairments affecting both shoulders and a severe anxiety disorder related to physical problems, but no impairment or combination of impairments that meet or equal in severity the requirements of any impairment listed in Appendix 1, Subpart P, Regulations No. 4. 

     

    4.  The claimant’s allegation that the mental impairment listed in Finding No. 3 prevents the performance of any sustained work activity is consistent with the medical evidence of record.

     

    5.  The claimant has the residual functional capacity to perform the physical exertional and nonexertional requirements or work except for severely reduced concentration and stress tolerance.  Exertionally, he could perform jobs not requiring lifting or carrying more than 10 pounds frequently or more than 20 pounds occasionally (20 CFR 416.945).  Because of the chronic nature of the claimant’s mental condition, this degree of severity can be expected to last for a continuous period of at least twelve months beyond November 18, 1999.

     

    6.  The claimant is physically able to perform at least some past relevant work, but not mentally (20 CFR 416.965).

     

    7.  Because of severe limitations resulting from the claimant’s mental impairment, the range of even sedentary work has been significantly compromised, and there is not a significant number of jobs in the national economy that the claimant could perform.  Section 201.00(h), Appendix 2, Subpart P, Regulations No. 4.

     

    8.  The claimant has been under a “disability,” as defined in the Social Security Act, since November 18, 1999 (20 CFR 416.920(f)).

     


     

     

     

    DECISION

     

    It is the decision of the Administrative Law Judge that, following the application for supplemental security income filed on November 18, 1999, the claimant was disabled beginning that date, as disability is defined in Section 1614(a)(3)(A) of the Social Security Act, and that the disability has continued through the date of this decision. 

     

    A copy of the Social Security disability decision is in Paskon’s records for J.W.

     

                109.  October 3, 2000:  Paskon noted that J.W. had officially become totally disabled on September 15, 2000, due to his right foot deformity and pain, his left shoulder injury, and his left elbow injury.  J.W. reported that he was supposed to have the refusion on his right foot, but that it had not been done, and that he was seeing Dr. Hulsey for his shoulder problem.  J.W. reported his pain as 10+ without medication and 2-3 with medication.  He stated that his nerves were OK with Diazepam unless he was in a crowd.  Paskon’s assistant made notes of the physical examination of J.W., noting that his right foot had minimal movement and that his left shoulder had pain with 90 degree abduction and decreased muscle strength.  Paskon prescribed 60 Oxycontin 40 mg. to be taken every 12 hours, 60 Percocet 10/650 to be taken every six hours prn, and 90 Valium 10 mg. to be taken every six hours prn. 

                110.  October 10, 2000:  J.W. stated that his medicines had been stolen out of his car and that he had gone to the police but they told him that a report would not be ready for one week.  J.W. complained of stress and not sleeping well because the pain kept him awake.  Paskon noted that Dr. Hulsey would evaluate the patient and give a second opinion on whether to do the right foot and left shoulder surgery.  Paskon noted that there were no needle tracks on J.W.’s arms and that his right foot was tender to the touch.  Even though J.W. reported his medications as stolen, Paskon did not write any new prescriptions on that visit. 

     

     

     

                111.  November 3, 2000:  J.W. rated his pain as 10+ without medication, and 1-2 with medication.  He reported that the insurance company was requiring him to see another specialist regarding his workers comp claim for his left shoulder injury.  He reported that his nervousness was controlled well with Valium.  Paskon’s assistant noted that J.W.’s left shoulder was unable to abduct passive or active over 80 degrees and that his muscle strength of the left upper extremity was 4/5.  Paskon noted that J.W. would be gradually weaned off of Valium with a goal to discontinue Valium.  Paskon noted that Oxycontin failed to last 12 hours.  Paskon prescribed 60 Oxycontin 40 mg. to be taken every 12 hours, 60 Percocet 10/650 to be taken every six hours prn, 120 Valium 10 mg. to be taken every six hours, 50 Esgic Plus, 90 Ibuprofen 800 mg., Doxepin 25 mg. to be taken four times per day, and Elavil 75 mg. to be taken at bedtime.  Paskon prescribed the Percocet for breakthrough pain because the Oxycontin failed to last 12 hours. 

                112.  December 1, 2000.  Paskon’s assistant noted that J.W. had left shoulder tenderness and decreased range of motion, and that his muscle strength was 4/5.  J.W. complained that his pain was 10+ without medication and 5 with medication.  J.W. stated that he suffered from nervousness and insomnia and was unable to sleep due to pain, but that his nerves were controlled with Valium.  J.W. stated that his foot “gave out” and he fell down the stairs two weeks prior, and that he had breakthrough pain before his next Oxycontin dosage.  Paskon noted that the shoulder pain had no recovery and that workers comp refused to pay for left shoulder surgery.  Paskon prescribed 60 Oxycontin 40 mg. be to be taken every 12 hours, 60 Percocet 10/650 to be taken every six hours prn, and 90 Valium 10 mg. to be taken every six hours.

                113.  December 29, 2000:  J.W. reported that he was starting court procedures to get insurance to cover shoulder surgery.  J.W. reported that his pain without medication was 10½ and with medication was 2.  He reported that his pain did not last as long with a 40 mg. Oxycontin dose every 12 hours and that it depended on the weather with a decreased Oxycontin

     

     

    dose.  He also reported that his nerves were not very well controlled with the decreased Valium dose and that he suffered tension headaches more frequently.  Paskon’s assistant noted that he experienced pain with external rotation of his left shoulder and that abduction past 90 degrees caused pain.  Paskon’s assistant noted that there was a plan to decrease the Valium dosage with a goal to discontinue Valium.  Paskon prescribed 60 Oxycontin 20 mg. to be taken every 12 hours (Tr. 936-64; but see Ex.  EEE), 60 Percocet 10/650 to be taken every six hours prn, 90 Valium 10 mg. to be taken three times per day, and 50 Esgic to be taken every six hours prn. 

                114.  January 29, 2001:  J.W. complained that his right foot and right leg had given out and he had fallen down, hitting his head and leg.  He complained that he was nervous and wanted Xanax or 5 mg. Valium.  He complained that he was tired and not sleeping well.  He reported that he had a court date on February 22 to resolve the workers compensation claim for the surgical expense.  He stated that it felt like a knife was sticking into his left shoulder.  Paskon recommended that he have a steroid injection in his left shoulder, but J.W. wanted to wait.  J.W. used an Ace bandage and a special orthopedic shoe for his right foot.  Paskon noted that the Oxycontin 20 mg. failed to last 12 hours, and J.W. complained that the pain started again after eight hours.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 120 Percocet 5/325 mg. to be taken every six hours prn, and 120 Valium 5 mg. to be taken four times per day.  Paskon thus reduced the daily dosage of the Oxycontin, Percocet, and Valium. 

                115.  February 27, 2001:  J.W. reported that his pain without medication was 10+ and with medication was 3.  He wanted to stay on the lower dose of Oxycontin but increase the Percocet to more than 5/325 mg.  He reported that his pain was a little worse due to the decrease in Oxycontin.  He complained that his right foot pain had increased.  He reported that the surgeon told him that his only option was to have a bone graft from his hip, and he was not sure he wanted to do that.  He complained that he had fallen three weeks prior and had been on his

     

     

    feet more lately because he had to go to court on his workers compensation claim.  He stated that he was waiting on the workers compensation claim for further treatment of his shoulder and that he had an MRI on it in October 1999 but did not know the results.  He reported that he had extreme nervousness due to having to appear in court and deal with lawyers for his workers compensation claim.  Paskon’s assistant noted that his left shoulder abducted to 90 degrees.  Paskon referred J.W. toDr.Galioto, a psychiatrist.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 120 Percocet 5/325 mg. to be taken every six hours, and 120 Valium 5 mg. to be taken four times per day.  The increased number of Percocet tablets enabled J.W. to take them four times per day instead of two times per day. 

                116.  March 26, 2001:  J.W. complained that Oxycontin 20 mg. failed to last eight hours and that his pain was 3 with medication.  He complained that he could hardly move his left shoulder due to the pain and stiffness.  J.W. reported that his right foot had given way again and that he had fallen and bruised his forehead but did not lose consciousness.  He stated that the judge in the workers comp case ordered that he have surgical intervention for his left shoulder within 45 days.  He complained of severe stress and that he could not sleep due to pain.  He reported that he had seen Dr. Galioto.  He complained that his right foot pain was like walking on a nail.  Paskon noted that he appeared nervous and tense, and that there was no evidence of needle tracks on his arms.  Paskon prescribed 90 Oxycontin 30 mg. (20 mg. tablets + 10 mg. tablets) to be taken every eight hours.  Oxycontin does not come in 30 mg. tablets, so Paskon achieved the 30 mg. dose by adding the 10 mg. tablets to the 20 mg. tablets.  Vioxx was discontinued because it did not help J.W., but Paskon recommended that he take Motrin 800. 

                117.  April 23, 2001:  J.W. reported that he had fallen again because his right foot gave way and that he went to St. Anthony’s Hospital.  He stated that the hospital put an Ace bandage around his ankle.  He complained that his pain was 10 with medication.  He complained that he

     

     

    was shaky and not sleeping well.  Paskon’s assistant noted that she called St. Anthony’s Hospital and that they did not have any X rays.  Paskon noted that J.W. had redness and a bruise on his forehead.  Paskon referred him toSt. LouisUniversityfor bone graft surgery because he did not believe that Dr. VanNess could do it inFarmington.  Paskon prescribed 60 Oxycontin 40 mg. to be taken every 12 hours and 60 Percocet 10/650 mg. to be taken every six hours prn.  Paskon reduced the frequency of the Oxycontin, but increased the strength of the Percocet.  J.W.’s pain had been untreated for many years, and Paskon trusted him to cooperate with his pain treatment.  (Tr. 989.)

                118.  May 23, 2001:  J.W. stated that he wanted to taper off his medications and decrease the Oxycontin to 20 mg. three times per day for the next month.  He stated that decreasing the Oxycontin to 40 mg. every 12 hours was tolerable with Percocet.  He reported that his pain was 10 without medication and 3 with medication, and that he was feeling better since his fall the previous month.  He complained that he was unable to sleep due to pain and suffered from anxiety.  He complained of palpitations with anxiety attacks.  He reported that he was having problems with Medicaid, so he was afraid to go to a specialist at that time.  He stated that he was having difficulty settling with workers compensation.  Paskon’s assistant noted that J.W. had left arm abduction to 90 degrees and minimum external and internal rotation.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours and 60 Percocet 10/650 to be taken every six hours prn. 

                119.  On June 18, 2001, Dr. Galioto prescribed 120 Valium 10 mg. four times per day for J.W.  (Ex. 5 at 7.) 

                120.  June 21, 2001:  J.W. reported that he had a motor vehicle accident two weeks prior, that his car was totaled, and that he had injuries to his neck and shoulder.  He stated that the pain to his left shoulder and right leg was fairly well controlled with his current medications.  He

     

     

    reported that he was seeing Dr. Galioto and that his long-term goal was to decrease his narcotic medications.  He reported that his pain was 10 with medication and 2 without medication.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 60 Percocet 10/650 to be taken every six hours prn, and 60 Fioricet.  The Fioricet was to be taken one or two tablets every six hours for headaches, with one refill allowed if needed. 

                121.  July 18, 2001:  J.W. stated that he was wearing a wrap on his left arm because he had been stung by a wasp.  J.W. stated that he had been detoxing himself the last two months, was trying to get off of everything, and had gone from 80 mg. to 20 mg. on the Oxycontin.  J.W. reported that his pain was 12 without medication and 2 with medication.  J.W. stated that he could not get Fioricet for his headaches because the pharmacy would not have it until October or November, and that he was waiting for the judge to determine when his shoulder surgery would be.  He stated that he was having a urinalysis twice a month as a condition of parole and that the results were being sent to Dr. Galioto.  Paskon’s assistant noted that J.W. was never going to be pain free.  Paskon noted that J.W. won the settlement with workers comp in court.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 60 Percocet 10/650 to be taken every six hours prn, and 40 Esgic Plus. 

                122.  August 17, 2001:  J.W. reported that the workers compensation doctor agreed to do his left shoulder surgery.  He stated that his headaches were relieved by Fioricet.  J.W. reported that his pain was 10+ without medication and 1 with medication.  Paskon noted that his pain was the same as at the July visit.  J.W. complained that he was nervous and had anxiety, and that he was out of his anxiolytics but was unable to see Dr. Galioto that month.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 60 Endocet 10/650 to be taken every six hours prn, and 120 Valium 10 mg., half to one tablet to be taken four times per day.  Endocet is the same medication as Percocet, but a different brand name. 

     

     

                123.  September 14, 2001:  J.W. reported that his pain was 10+ without medication and 5 with medication, and that his left rotator cuff surgery was planned for November with Dr. Hulsey.  Paskon noted that his nervousness was controlled with the medication he was taking.  J.W. walked with a cane and wore an orthopedic boot on his right foot.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 120 Percocet 5/325, two tablets to be taken every six hours prn, 110 Valium 10 mg., half to one tablet to be taken four times per day, and 60 Elavil 75 mg., two tablets to be taken at bedtime.  Paskon prescribed the Elavil for insomnia, to help with anxiety and depression, as an adjunct therapy for chronic pain, and as preventative medicine for headaches. 

                124.  October 16, 2001:  J.W. complained that his pain was getting worse as the weather got colder and that his pain was 10 or 10+ without medication and 1-2 with medication.  Paskon prescribed 90 Oxycontin 20 mg. to be taken every eight hours, 120 Percocet 5/325 prn, and 110 Valium 10 mg., half to one tablet to be taken four times per day. 

                125.  November 13, 2001:  Paskon’s assistant noted that J.W. came in for refills of Roxicet, Valium, Amitriptyline, Butalbital APAP, and Oxycontin.  Roxicet is the same thing as Percocet, and Butalbital APAP is a generic for Fioricet.  Paskon allowed the generic to be substituted on his prescriptions of Percocet.  Amitriptyline is a generic for Elavil.  J.W. reported that he had been cutting the Oxycontin in half and taking one and a half at a time.  J.W. reported that the pin was coming through the top of his right foot.  J.W. reported a worsening of anxiety due to a court procedure for the second injury fund.  He stated that he planned to have his right foot surgery in June 2002.  Paskon prescribed 90 Oxycontin 20 mg. and 90 Oxycontin 10 mg. to be taken every eight hours, 120 Percocet 5/325 to be taken prn, 110 Valium 10 mg., and 60 Phrenilin Forte.  Phrenilin Forte is the same as Fioricet and was prescribed for migraine headaches. 

     

     

                126.  December 11, 2001:  J.W. reported his pain as 10 without medication and 1-2 with medication.  He reported a worsening of pain in his foot and shoulder.  He reported that Oxycontin 30 mg. failed to control the pain for 12 hours and that it worked better if he took it after eight hours.  Paskon prescribed 90 Oxycontin 20 mg. and 90 Oxycontin 10 mg. to be taken every eight hours, 120 Percocet 5/325, one to two tablets to be taken every six hours prn, and 100 Valium 10 mg., half to one tablet to be taken four times per day.

                127.  January 9, 2002:  J.W. complained that Fioricet was not helping his headaches and that prior to a headache he had an aura[1] and blurred vision.  This is an indication of a migraine headache.  He reported that his pain was 10+ without medication and 1 with medication.  He complained of stress and depression because his mother was in the hospital, but stated that he functioned well with his medication.  Paskon prescribed 90 Oxycontin 20 mg. and 90 Oxycontin 10 mg. to be taken every eight hours, 90 Percocet 5/325, one or two tablets to be taken every six hours, 110 Valium 10 mg., and Elavil 75 mg., two tablets to be taken at bedtime.  Paskon also prescribed Blocadren 10 mg. three times per day, which is a beta blocker to prevent migraine headaches.  

                128.  February 5, 2002:  J.W. reported that he fell and injured his back and that he wondered whether he had a slight stroke due to the Blocadren.  He stated that he had frequent episodes of breakthrough pain.  He reported his pain was 10 without medication and 3 with medication.  He complained of extreme nervousness due to his mother’s illness and the legal matters in court.  Paskon prescribed 90 Oxycontin 10 mg. and 90 Oxycontin 20 mg., 120 Endocet 5/325 or 60 Endocet 10/650, and 110 Valium 10 mg. 

     

     

     

                129.  Paskon’s file contains a letter from the service liaison at St. Anthony’s Hyland Behavioral Health, dated February 25, 2002, stating:

    We have appreciated the opportunity to work with you in providing treatment for [J.W.] was a patient [sic] at Hyland Behavioral Health, St. Anthony’s Medical Center from 2-18-2002 to 2-23-2002 under the care of Dr. A. Malik.

     

    If you have any questions or would like further treatment information, please call me[.]

     

    There is no mention in Paskon’s office notes of this treatment at St. Anthony’s.

     

                130.  March 18, 2002:  J.W. reported that he had anxiety and some depression and that Diazepam helped.  J.W. reported his pain as 10+ without medication and 1-2 with medication.  Paskon prescribed 90 Oxycontin 20 mg. and 90 Oxycontin 10 mg. to be taken every eight hours, 90 Percocet 5/325 to be taken every six hours prn for breakthrough pain, and 110 Valium 10 mg., half to one tablet to be taken four times per day.  

                131.  April 8, 2002:  J.W. complained that his body was hurting more due to the weather.  He again reported that he had anxiety and depression and that Diazepam helped.  He stated that his pain was 10+ without medication and 1 with medication and that his sleeping was “OK.”  Paskon prescribed 90 Oxycontin 20 mg. and 90 Oxycontin 10 mg. to be taken every eight hours, 75 Percocet 5/325, one or two tablets to be taken every six hours prn for breakthrough pain, and 110 Valium 10 mg., one or one and a half tablets to be taken every six hours. 

                132.  May 7, 2002:  J.W. reported that he was in a motor vehicle accident on April 19, 2002, when his car was hit in the front door on the passenger side.  He stated that his head hit the side window.  He complained that his pain was 10+ without medication and 2 with medication.  He stated that the medications were helping his anxiety.  He described his sleeping as fair.  Paskon ordered physical therapy for his neck and shoulder pain from the auto accident, but J.W. said that he did not want to have it right away because he wanted to wait and see whether

     

     

    automobile insurance would cover it.  Paskon prescribed 90 Oxycontin 20 mg. and 90 Oxycontin 10 mg., 60 Endocet 10/650 to be taken every six hours prn for breakthrough pain, and 110 Valium 10 mg. to be taken every six hours. 

                133.  June 25, 2002:  J.W. reported that he had been hospitalized for one week during the first week of June.  He stated that he had been out of pain medication for five days and felt cold and shaky.  These were symptoms of withdrawal.  He reported that his pain was 10 without medication and 4 with medication and that his pain was intolerable.  He complained of severe tenderness and pain in his lower back.  Paskon noted that his right femoral artery had a puncture from an IV.  Paskon ordered a thyroid test to see if J.W.’s symptoms of feeling cold and shaky were caused by hyperthyroidism.  Paskon prescribed 30 Oxycontin 40 mg., 60 MSIR (immediate releasing morphine) to be taken every six hours prn for breakthrough pain, and 90 Valium 10 mg.  He asked J.W. to return in one week. 

                134.  Oxycontin comes in controlled release tablets and is indicated for moderate to severe pain when continuous opioid analgesia is needed for an extended time period.  (Ex. UUU.)  It is usually given on a 12-hour schedule and is not for prn use.  (Ex. UUU.)  However, Oxycontin may be prescribed three times per day or as much as four times per day.  (Ex. T.)

                135.  J.W. filled prescriptions from Paskon for Amitriptyline at the Medicap Pharmacy inFarmingtonon March 30, 2000; April 24, 2000; May 19, 2000; June 15, 2000; August 17, 2001; December 7, 2001; and April 24, 2002.  J.W. filled a prescription from Paskon for Amitriptyline at Walgreens on July 21, 2000. 

                136.  A patient may take more medication than prescribed if it treats the pain.  (Tr. 1539-40.)  In that case, the doctor should inquire if the frequency or strength of the medication was inadequate to control the pain.  The doctor may need to increase the dosage or frequency, or supplement with an adjunct pain medication. 

     

     

                137.  Paskon’s assistant or nurse practitioner often made notes of the physical examination in the patient’s records.  However, Paskon always conducted a physical examination of the patient himself and did not solely rely on the assistant’s or nurse practitioner’s findings.  (Tr. 982.)

                138.  A doctor should not refuse pain medication to a patient merely because the patient has been a drug abuser in the past.  For example, a cancer patient should not be denied pain treatment merely because he had been a drug addict. 

                139.  If a patient runs out of medication in half the time for which it was prescribed, this could mean that the pain is undertreated.  It could also be a sign of pseudoaddiction, which occurs when patients go to multiple doctors, lie about it, and try to avoid detection.  But they do so only because their pain is undertreated and they need to get more medication.  (Tr. 1536-37.)

                140.  In treating patients with chronic pain, it is not unusual to change the quantity of Oxycontin that the patient is receiving over time.  The dose should be titrated so the patient is receiving the lowest therapeutic dose. 

                141.  Because psychiatrists don’t treat headaches, insomnia, and chronic pain, they have no occasion to prescribe Elavil for these purposes or for any purpose other than depression.  The general practitioner may prescribe Elavil for these purposes as well as for depression. 

                142.  Dr. Galioto’s forms set forth elements of a mental status examination, which included: 

    Orientation to time, place and person

    Recent and remote memory

    Attention span and concentration

    Language (e.g., naming objects, repeating phrases)

    Fund of knowledge (e.g. awareness of current events, past history, vocabulary)

    Mood and affect (e.g. depression, anxiety, agitation, hypomania, lability)

     


     

     

    Count VII:  S.K.

                143.  S.K. first saw Paskon on March 19, 1998.  S.K. was married and listed “housewife” as her occupation, but she was separated from her husband.  S.K. listed her current medical conditions as including arthritis, diabetes, recurrent back pain, and depression.  She listed Zoloft – an antidepressant – among her current medications.  Zoloft is a selective serotonin reuptake inhibitor in the same class of medications as Paxil and Prozac.  S.K. complained of sore throat, malaise, and nervousness.  S.K. reported that she had been tired for years and had nervousness for 11 years.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon’s prescriptions included Xanax 0.5 mg. half to one tablets every six hours.  Paskon prescribed Xanax because it is an anxiolytic, but can also help with depression.  Xanax comes in strengths of .5 mg., 1 mg., or 2 mg., and up to 8 to 10 mg. per day may be prescribed.  Paskon started with the lowest possible dose, but instructed S.K. that she could take a whole tablet if necessary and could gradually increase the dose to 8 to 10 mg. per day.  He also instructed her that if a whole tablet made her too drowsy, she could reduce to half a tablet again. 

                144.  The maximum allowable dose of Xanax is 10 mg. per day.  Because it is a Schedule IV controlled substance, Paskon could legally prescribe it for 90 days at a time, but he prescribed only 30-day supplies for S.K. instead. 

                145.  S.K. experienced stress from numerous family problems (Tr. IV 92), and Paskon was aware of all of the situations as their family physician.  One of S.K.’s daughters had brain damage due to a high fever that she had as a child.  She was raped and went through court proceedings.  One of S.K.’s sons had learning disabilities and was skipping school, so authorities were investigating the family for educational neglect.  Another son was in jail.  Two other daughters had family problems and took their children to S.K. for her to take care of them.  S.K.’s husband had a drinking problem, was a diabetic, and had other serious medical problems,

     

    rendering him impotent.  S.K. began having an affair with her husband’s brother, but his wife discovered the affair and called S.K. to cuss her out. 

                146.  On October 23, 1998,[2] Paskon prescribed Paxil.

                147.  October 30, 1998:  S.K. complained of nervousness, depression, and crying off and on.  She complained of heaviness in her mid-chest related to her anxiety.  The boxes on Paskon’s form were checked for psychiatric ROS and exam.  Paskon reported that she was alert.  Paskon’s diagnoses included anxiety reaction, and his prescriptions included Paxil.  Paskon first wrote Xanax on his list of prescriptions, but crossed it out because he prescribed Buspar and Vistaril instead.  Paskon was trying to avoid using a controlled substance.  Buspar is not a controlled substance. 

                148.  January 12, 1999:  S.K. stated that she wanted Lorazepam for her anxiety.  Lorazepam is a generic, and Ativan is a brand name for Lorazepam.  Lorazepam is a Schedule IV controlled substance.  It is an anxiolytic and a benzodiazepine, in the same group as Xanax, Valium, Librium, and Klonopin.  Lorazepam is a controlled substance.  Paskon took her word that Buspar and Vistaril were not effective for her.  Paskon’s prescriptions included Paxil and 90 Ativan 1 mg., one every six hours as needed. 

                149.  January 15, 1999:  S.K. complained of depression and suicidal thoughts, but she had no plan to commit suicide; i.e., she had not contemplated a method of how to do it.  She complained that she had a headache and felt “tense all over.”  She complained of nervousness and insomnia and was afraid that she was going to hurt somebody.  On examination, Paskon found that she was alert, oriented, and rational.  Paskon’s diagnoses included depression and anxiety reaction.  Paskon recommended that she enter a psychiatric hospital for treatment, but she refused.  The nearest treatment center was inFarmington.  However, Paskon did not believe

     

     

    that her condition was serious enough that she be involuntarily committed, as she was not a serious threat to herself or others.  Because she did not want to be admitted for psychiatric treatment, Paskon recommended that she see Dr. Jiminez, a psychiatrist inPotosi.  Paskon’s diagnoses included depression and anxiety reaction.  Paskon prescribed 10 Triavil to be taken once per day at bedtime.  Triavil is not a controlled substance, and Paskon prescribed it for anxiety and depression.  Paskon also prescribed 40 Xanax 1 mg. three times per day.  Paskon prescribed these anxiolytics because he had prescribed Ativan on the previous visit and it was not effective.  Paskon prescribed Xanax because it is fast acting and he found it to be a very effective medication for anxiety and also for depression. Even though she had suicidal thoughts, Paskon did not believe that she would overdose on medication or that 40 Xanax tablets would kill her even if she overdosed on it.  Paskon prescribed 10 Ambien to be taken at bedtime.  Ambien is a sleeping pill.  Because S.K. did not want to be admitted for treatment, Paskon agreed with her that he would prescribe these medications and would see her the next day to see how she was doing.

                150.  January 16, 1999:  Paskon checked the box for psychiatric examination.  Paskon conducted a mental status examination by looking at S.K. face to face and observing whether she seemed depressed or angry.  Paskon noted that S.K.’s depression improved, that she slept well the previous night, and that she felt better.  He noted that she had no crying spell and denied suicidal ideation or thoughts of injuring others.  She was alert and had a cheerful smile.  Paskon’s diagnoses included anxiety stress reaction and depression.  Paskon did not prescribe any more medications on that date. 

                151.  January 19, 1999:  S.K. did not have an office visit, but reported that she dropped her Xanax in the sink.  Paskon prescribed 60 Xanax .5 mg. three times per day.  Paskon felt that he and S.K. had developed a trust between them in their doctor-patient relationship.  He believed

     

     

    that ethically and professionally he could not abandon the patient and that if he did not give her more Xanax, she would go back to the condition that she was in.  She could also experience withdrawal symptoms from not having Xanax. 

                152.  January 29, 1999:  Paskon’s diagnoses included depression and panic disorder.  Paskon prescribed 90 Xanax 1 mg. three times per day.  Under ROS, Paskon noted that S.K.’s nervousness and depression had improved.  Paskon checked the box for psychiatric exam and noted that she appeared cheerful.  Paskon’s diagnoses included depression and panic disorder.  Paskon’s prescriptions included 90 Xanax 1 mg. three times per day.  Paskon gave her a limited supply, even though legally he could have given her a 90-day supply.  

                153.  February 24, 1999:  Paskon’s notes did not address the psychiatric evaluation in detail because details were in the records from previous visits.  Paskon’s diagnoses included depression.  Paskon prescribed 90 Xanax 1 mg. three times per day. 

                154.  March 22, 1999:  Anxiety was noted under ROS.  Depression was noted under PFSH.  The box for psychiatric examination was checked.  Paskon’s diagnoses included anxiety reaction.  Paskon prescribed 90 Xanax 1 mg. three times per day. 

                155.  April 9, 1999:  In the space on the form for current complaints, Paskon’s assistant noted that S.K. wanted a refill of Ativan.  Paskon noted that S.K. had nervousness and depression.  Paskon’s diagnoses included depression.  S.K. was out of Ativan, and Paskon believed that she needed this for anxiety in addition to Xanax.  Paskon prescribed 90 Ativan

    1 mg. prn every six hours. 

                156.  May 11, 1999:  Paskon noted depression under PFSH.  On examination, Paskon found S.K. alert.  Paskon diagnosed depression and anxiety reaction.  Paskon prescribed Celexa and 120 Xanax 1 mg. four times per day.  Paskon found that the Xanax had an effect combined

     

     

     

    with antidepressants that he was prescribing.  Paskon tried to keep the Xanax at the minimum amount that would work for S.K. 

                157.  May 19, 1999:  Next to the checked box for psychiatric examination, Paskon’s assistant noted that S.K. was A&Ox3, in no acute distress, and that her affect showed no depression. 

                158.  May 27, 1999:  S.K. went in requesting a refill of Ativan.  Under ROS, Paskon noted that S.K. had nervousness and depression that were relieved by Ativan and Xanax.  Under PFSH, Paskon noted that S.K. had chronic anxiety reaction and panic attack.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon prescribed 120 Ativan 2 mg. every six hours as needed.  Paskon made a notation that appears to read “continue Xanax,” although this is unclear. 

                159.  June 7, 1999:  Under PFSH, Paskon noted depression and that Xanax relieved S.K.’s tension, hateful attitude, and desire to hurt other people.  In his physical examination, Paskon noted that S.K. was alert.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon’s prescriptions included 120 Xanax 1 mg. four times per day. 

                160.  June 29, 1999:  S.K. complained of stress due to a death in her family.  Paskon noted that she was depressed and out of Xanax.  On the physical examination of her constitutional system, Paskon noted that S.K. was weak and depressed.  Paskon’s diagnoses included depression and anxiety reaction.  Paskon prescribed 120 Xanax 1 mg. four times per day, even though he had prescribed 120 Xanax 22 days earlier.  Paskon felt that he needed to provide more medication due to the stress of the death in S.K.’s family.  He was not concerned that she had run out of medication before she should have according to the prescription because she was not taking the maximum dosage and had been a compliant patient with a relatively small dosage of Xanax.  Xanax was also used as an adjunct medication for S.K.’s lumbar back pain.  If

     

     

    her anxiety was not controlled, she would have trouble sleeping and her back pain would also get worse. 

                161.  July 26, 1999:  Paskon noted that S.K. was alert and oriented.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon prescribed 120 Xanax 1 mg. four times per day. 



                    [1]“[A] subjective sensation (as of lights) experienced before an attack of some disorders (as epilepsy or a migraine).”  MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 82 (11th ed. 2004). 

                    [2]S.K. saw Paskon onSeptember 9, 1998, but that visit is not at issue in this case.  

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    162.  August 9, 1999:  S.K. stated that she had been taking two 1 mg. Xanax tablets two times per day for the past two or three weeks because she had been very nervous.  Under ROS, Paskon’s nurse practitioner noted increased anxiety and nervousness.  Under psychiatric examination, she noted that S.K. was A&Ox3.  Even though S.K. had not complied with the prescribed dosage for Xanax, Paskon felt that he should not abandon her as a patient, and he also believed that an increased dosage of Xanax was justified due to her increased anxiety and nervousness.  Paskon prescribed 60 Xanax 2 mg. four times per day.  He prescribed only a two-week supply of Xanax so that she would follow up with him before getting more medication.   The manufacturer’s recommended daily maximum for Xanax was 10 mg. per day.  Paskon’s diagnoses included anxiety reaction. 

                163.  September 1, 1999:  S.K. visited Paskon for medication refills.  Under ROS, Paskon’s nurse practitioner noted that S.K.’s anxiety was controlled with Xanax.  Under examination, the nurse practitioner noted that S.K. was A&Ox3, but that her affect was anxious.  S.K. had only a 15-day supply of Xanax from her last visit, but she did not ask for a refill until 22 days later.  Therefore, Paskon found that she was not abusing medication.  Paskon’s diagnoses included anxiety reaction.  Paskon prescribed 120 Xanax 1 mg. four times per day and 120 Ativan 1 mg. every six hours prn.  The Ativan was in case she had a nervous attack in between doses of Xanax and to prevent her from double dosing on Xanax again. 

     

     

     

                164.  September 21, 1999:  Paskon noted that S.K. was taking care of many grandchildren and was under stress due to family matters.  On physical examination, Paskon noted that S.K. was alert and afebrile.  Paskon’s diagnoses included anxiety reaction.  He prescribed 120 Xanax 1 mg. four times per day and Celexa 20 mg. 

                165.  September 28, 1999:  S.K. was 5 feet, 4 inches tall.  Her weight was 252 pounds.  S.K. complained that she had fallen and was experiencing back pain.  Under PFSH, Paskon noted anxiety reaction.  On physical examination, Paskon noted that S.K. was alert and afebrile. 

    Paskon prescribed 30 Adipex 37.5 mg with directions to take one each morning.  Adipex is an appetite suppressant.  The manufacturer’s recommended dosage for Adipex is 37.5 mg. once daily, or 18.75 mg. one to two times daily.  Paskon prescribed this to help S.K. lose weight and therefore ease the pain in her back and help lower her blood sugar.  Paskon had given her diet instructions to lose weight and help control her diabetes, but this had been ineffective.  Pharmacological therapy for weight loss is indicated when the patient is obese, the patient’s body mass index is over 30 and the patient has comorbidity such as high blood pressure, diabetes or back pain.  S.K. met these criteria.  Paskon’s diagnoses included overweight and anxiety reaction.  Paskon also prescribed 120 Ativan 1 mg. every six hours prn. 

                166.  October 12, 1999:  Paskon documented in the portion for psychiatric examination that S.K. still experienced nervousness and depression.  On physical examination, Paskon noted that S.K. was alert and afebrile.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon prescribed 90 Xanax .5 mg., one to two every six hours prn. 

                167.  November 3, 1999:  S.K.’s weight was 250 pounds.  In his examination, Paskon noted nervousness and anxiousness.  Paskon noted that there were no side effects from the Adipex.  On physical examination, Paskon noted that S.K. was alert and afebrile.  Paskon’s diagnoses included anxiety reaction, depression, and overweight/obesity.  Paskon noted that her

     

     

    body mass index was 43 and that her category of obesity was II/III.  Paskon prescribed 120 Xanax 1 mg. four times per day, Ativan 1 mg. prn every six hours, and 30 Adipex 37.5 mg. with directions to take one each morning.  The manufacturer’s recommended daily maximum dosage for Xanax was 10 mg. per day.  The manufacturer’s recommended daily maximum dosage for Ativan was 10 mg. per day. 

                168.  December 3, 1999:  S.K. visited Paskon for refills of medication, including Xanax and Adipex.  Her weight was 251 pounds, an increase of one pound from the previous visit.  S.K. complained that the Adipex was working well until the previous week.  S.K. stated that the Xanax was helping her anxiety, but she wondered if she could take Valium instead of Ativan.  She complained that she got depressed around Christmas, but did not find antidepressants very effective.  Paskon checked the box indicating that he conducted a psychiatric examination.  Paskon’s assistant noted that S.K. was A&Ox3.  Paskon’s diagnoses included poorly controlled diabetes, anxiety reaction, depression, and obesity.  Paskon prescribed 120 Xanax 1 mg. to be taken four times per day and 60 Valium 10 mg. to be taken every six hours prn.  Paskon prescribed the Valium instead of the Ativan per S.K.’s request because she did not find the Ativan effective.  Valium is stronger than Ativan.  Ativan and Xanax have a short duration; thus, a patient may still have anxiety attacks in between doses.  Paskon prescribed the Valium because it is longer acting.  Paskon prescribed the Xanax as a maintenance anti-anxiety medication to keep her at the therapeutic blood level so that she did not have anxiety attacks, and he prescribed Valium for breakthrough for anxiety attacks.  Paskon discontinued the Adipex with this visit because he found it ineffective.  The manufacturer’s recommended daily maximum dosage for Valium was 60 mg. per day.     

                169.  December 30, 1999:  Paskon’s nurse practitioner noted that S.K. had been off of Adipex for one month and had gained three pounds since her last visit.  S.K. reported that her

     

     

    anxiety was controlled with Valium and Xanax.  Paskon’s nurse practitioner noted that S.K.’s affect was anxious and that she was A&Ox3.  The box for psychiatric examination was checked.  Paskon’s diagnoses included obesity and anxiety reaction.  Paskon prescribed 120 Xanax 1 mg. to be taken four times per day and 60 Valium 10 mg. to be taken every six hours prn. 

                170.  January 4, 2000:  S.K. saw Paskon for an insulin injection.  Paskon checked the box for psychiatric examination and noted that she appeared anxious, but did not prescribe any further psychotropic medications during that visit. 

                171.  January 25, 2000:  S.K. complained that she felt tired and depressed and wanted to sleep all the time.  She requested to change from Valium to Ativan.  The box for psychiatric examination was checked.  Paskon examined her and noted that she felt weak and fatigued.  Paskon’s diagnoses included weakness, anxiety, and depression.  Paskon’s prescriptions included 120 Xanax 1 mg to be taken every six hours, and 120 Ativan 2 mg to be taken every six hours prn.  Ativan 2 mg. has the same potency as Valium 10 mg.  Paskon prescribed the Xanax as a maintenance medication for her anxiety, and the Ativan as a breakthrough medication for nervous attacks. 

                172.  February 16, 2000:  S.K. stated that she thought Valium worked better than Ativan.  The box for psychiatric examination was checked, and Paskon’s nurse practitioner noted that S.K. was A&Ox3.  Paskon’s diagnoses included anxiety reaction.  Paskon prescribed 120 Valium 10 mg. to be taken every six hours. 

                173.  February 22, 2000:  The box for psychiatric examination was checked.  Paskon’s assistant noted in the record that S.K. was A&Ox3 and experienced an increase in mood swings.  Paskon’s diagnoses included anxiety reaction.  Paskon prescribed 120 Xanax 1 mg. to be taken four times per day.  Paskon made a note to gradually wean S.K. from Xanax.  Paskon also prescribed 90 Buspar 10 mg. to be taken three times per day.  Paskon prescribed Buspar

     

     

    because it is not a controlled substance and he hoped to wean her from the Xanax if her anxiety problem could be controlled.  Buspar usually takes three to five weeks to become effective, and the dosage is usually built up gradually. 

                174.  March 10, 2000:  The box for psychiatric examination was checked, and Paskon’s assistant noted in the record that S.K. was A&Ox3.  Paskon’s diagnoses included anxiety reaction.  Paskon prescribed 90 Valium 10 mg. to be taken every six hours prn and Buspar

    10 mg. to be taken three times per day. 

                175.  March 20, 2000:  Under physical examination, Paskon noted that S.K. was alert.  Paskon’s diagnoses included depression and anxiety reaction.  Paskon prescribed 120 Xanax

    1 mg. to be taken every six hours.  Paskon also prescribed 120 Sinequan 25 mg. to be taken four times per day.  Sinequan is a tricyclic antidepressant that is the same as Elavil (Amitriptyline).  Sinequan is not a controlled substance.  It is used for anxiety and depression and as adjunct therapy for pain control. 

                176.  April 17, 2000:  Paskon’s assistant noted that the patient was there for a refill of Xanax only.  The box for psychiatric examination was checked.  Paskon noted nervousness, irritability, a crying spell, phobia in the form of a fear that people did not like her, and heart palpitations.  Palpitations are a symptom of anxiety attacks.  Paskon noted that S.K. had a history of chronic anxiety attacks.  On physical examination, Paskon noted that S.K. was alert.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon prescribed Buspar 10 mg. to be taken three times per day.  Paskon also prescribed 90 Serax 15 mg. prn.  Serax is a benzodiazepine in the same class as Valium, Xanax, and Ativan.  Serax is available in 15 mg. or 30 mg.  Paskon prescribed the weaker strength.  Paskon was trying to avoid prescribing Xanax. 

                177.  April 25, 2000:  S.K. complained of extreme nervousness and restlessness since the Xanax was discontinued.  She had bad dreams and was paranoid that somebody was trying to get

     

     

    her.  S.K. stated that she would like Xanax because her nerves were bad.  Paskon noted that Serax was not effective to control her nervous condition.  Paskon noted that S.K. complained that she was nervous, unhappy, and not herself.  She could not sit still and experienced jitteriness.  On physical examination, Paskon noted that S.K. was alert and anxious.  Paskon noted that the attempt to discontinue the Xanax was unsuccessful.  Paskon’s diagnoses included anxiety reaction and paranoid reaction.  Paskon prescribed 120 Xanax 1 mg. to be taken four times per day.  Paskon also prescribed 60 Paxil 20 mg. to be taken once per day and increased to twice per day after one week.  Paskon prescribed the medications because he believed that they were necessary to control the chemical changes in S.K.’s body that produced panic attacks, and that the medicines were not an addiction because she was not requiring an increase in dosage.  Paskon referred her to Dr. Jimenez, a psychiatrist, but there is no evidence that S.K. ever went to Dr. Jimenez.   

                178.  May 23, 2000:  Paskon noted in the record that S.K. had a history of nervousness, depression, and panic attacks.  He noted that her symptoms were controlled with Xanax and that she had an occasional need for Ativan in between doses of Xanax for breakthrough anxiety attacks.  The box for psychiatric examination was checked, and Paskon noted that she was anxious.  Paskon noted that attempts to decrease the Xanax were unsuccessful.  Paskon’s diagnoses included anxiety reaction and panic disorder.  Paskon prescribed 120 Xanax 1 mg., half or one tablet to be taken every six hours prn, and 30 Ativan 2 mg., half or one tablet to be taken every six hours prn.  Paskon prescribed the dosage as half or one tablet because he was attempting to reduce the antianxiety medication but did not want S.K. to relapse back to the condition he had observed in January 1999. 

                179.  June 21, 2000:  S.K. saw Paskon for refills of Xanax and Ativan.  S.K. complained of nervousness, depression, occasional crying spells, and insomnia.  She had frequent mood

     

     

    swings, but denied any suicidal ideation.  Upon physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included anxiety reaction.  Paskon noted that she had an appointment to see Dr. Jimenez.  His diagnoses also included depression, and in parentheses he wrote “bipolar disorder” because she had frequent mood swings.  Paskon noted that the attempt to decrease Xanax failed.  Paskon prescribed 120 Xanax 1 mg. to be taken four times per day and 90 Depakote 250 mg. to be taken twice per day for one week and then three times per day.  The Depakote prescription was a small dosage to control the mood disorder.  Paskon believed that he could not reduce the Xanax because her anxiety and depression would not be controlled. 

                180.  July 7, 2000:  S.K. complained of numbness and tingling in her hand and finger, which were indications of diabetic neuropathy.  On physical examination, Paskon noted that S.K. was alert.  Paskon’s diagnoses included lumbar back pain and degenerative disc disorder.  Paskon’s prescriptions included Depakote 250 mg. to be taken four times per day and Neurontin 300 mg. to be taken two times per day and then three times per day.  Paskon prescribed Neurontin because it is an antiseizure medication, but is also an adjunct medication for control of neuropathic pain.  It is not a controlled substance, and Paskon hoped to reduce the usage of controlled substances.  Paskon believed that it was acceptable to use different medications combined to control the same condition, such as pain or anxiety.  (Tr. 829.)  Paskon noted that Paxil was discontinued. 

                181.  July 21, 2000:  On physical examination, Paskon noted that S.K. was alert.  The box for psychiatric examination was checked.  Under review of psychiatric symptoms, Paskon noted that S.K.’s nervousness and panic attacks were controlled.  His assistant noted:  “does OK while using Xanax.”  Paskon noted that her nervousness and panic attacks were controlled.  Paskon’s diagnoses included anxiety reaction, panic disorder and depression.  Paskon prescribed Zoloft  50 mg., half a tablet once per day for the first week, and one tablet per day thereafter.  Paskon

     

     

    also prescribed 90 Xanax 1 mg. to be taken three times per day prn, Depakote 500 mg. to be taken two times per day, and Neurontin 300 mg. to be taken two times per day.  Paskon prescribed the Zoloft to control her depression, anxiety and panic attacks, and to hopefully increase the dosage from half to one tablet while decreasing the Xanax.  Paskon continued the use of the Neurontin for neuropathic pain.  Paskon noted that Paxil had side effects, and its use was discontinued. 

                182.  August 4, 2000:  Paskon noted that S.K. felt better since the last visit.  She felt like doing things around the house, and her motivation was improved.  He also noted that her depression and nervousness were controlled.  The depression and nervousness were controlled because the pain was better controlled.  When patients’ pain is great, they become more depressed and have greater need for nerve pills.  The anxiolytics and antidepressants are adjunct therapy with the pain medication.  The box for psychiatric examination was checked.  Under physical examination, Paskon noted that S.K. was alert.  Paskon’s diagnoses included anxiety reaction.  Paskon’s prescriptions included Zoloft 50 mg. to be taken twice per day.  

                183.  August 17, 2000:  S.K saw Paskon for refills of the Depakote, Zoloft, and Xanax.  She stated that her medications had been stolen on August 15 and that she had made a police report.  Paskon believed her becausePotosiis a poor area.  Under ROS, Paskon’s assistant wrote that S.K.’s anxiety was controlled.  The box for psychiatric examination was checked, and Paskon noted that she had nervousness and depression.  Her back pain was so bad that she was crying.  On physical examination, Paskon noted that S.K. was alert.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon prescribed 90 Xanax 2 mg. to be taken three times per day, Zoloft 50 mg. to be taken twice per day, and Depakote 500 mg. to be taken twice per day. 

     

     

     

                184.  September 15, 2000:  On physical examination, Paskon noted that S.K. was alert. Paskon was aware that S.K.’s son had attention deficit and hyperactivity and that he was skipping school.  The Division of Family Services prosecuted S.K. for educational neglect.  She lost her home and spent many nights sleeping in her car.  Sleeping in the car exacerbated her back pain.  The box for psychiatric examination was checked, and Paskon noted that she was nervous.  Paskon’s prescriptions included 90 Xanax 2 mg. to be taken three times per day. 

                185.  Every time a patient came in, Paskon went through questioning and evaluation to determine if their medication worked, if they were happy with it, and if it interfered with their activities of daily living. 

                186.  October 5, 2000:  On physical examination, Paskon noted that S.K. was alert.  Paskon noted that she was homeless for one month.  Paskon prescribed 45 Xanax 2 mg., to be filled on October 15, 2000, because she would have had Xanax left from her previous prescription.   

                187.  Paskon used the terms “anxiety,” “anxiety reaction,” and “anxiety disorder” to refer to the same group of disorders. 

                188.  Over time, Paskon treated S.K. for a number of conditions that are not mentioned in these Findings of Fact because Paskon’s treatment for these conditions is not at issue in the Board’s second amended complaint. 

                189.  The maximum daily dose of Tylenol is 4,000 mg.  Therefore, the maximum daily dose of Lorcet 10/650 is six tablets per day.  (Tr. IV 119.)

    Count VIII:  A.R.

                190.  A.R. first saw Paskon on March 29, 1999.  A.R. had been in a motor vehicle accident in 1989 and suffered a neck injury.  A.R. had an MRI performed on January 21, 1999.  A.R. went to Paskon to discuss the MRI results and to have his blood pressure medication

     

     

    checked.  The MRI showed an old cervical fracture.  A.R. had been seeing a psychotherapist for his anger and depression.  After an automobile accident, A.R. almost had a mental breakdown.  A.R. reported that he took Wellbutrin SR 150 mg., two tablets three times per day.  Paskon noted “Wellbutrin side effect” on the chart.  Paskon noted that A.R. had mood swings, nervousness, and irritability.  Paskon diagnosed cervical disc syndrome, cervical radiculopathy, hypertension, asthma, depression, post head injury, post-traumatic stress disorder, and allergic rhinitis.  Paskon prescribed Depakote 250 mg. three times per day for the mood swings, nervousness, and irritability.  Depakote is not a controlled substance.  Depakote is medically indicated for mania associated with bipolar disorder.  Depakote was also an adjunct for A.R.’s neuropathic pain.  A.R. was referred to Dr. Goldring, a neurologist, for his neck condition. 

                191.  It is not a routine practice to measure serum levels when prescribing Depakote as a psychotropic at a relatively low dosage, such as the dosage that A.R. received.  It would be appropriate to measure serum levels at a higher dosage such as 1,500 mg. per day.  (Tr. at 1423-24.) 

                192.  Paskon found that A.R. had suffered for ten years without any good intervention, so the pain became chronic and the nervous system controlling the pain pathway was disturbed. 

                193.  Paskon believed that the conditions of traumatic stress disorder, bipolar disorder, anxiety disorder, and panic attacks all had similar symptoms of nervous jitteriness, edginess, irritability, and impatience. 

                194.  A.R. next saw Paskon on April 21, 1999.  Paskon noted that A.R.’s mood swings had not improved with the Depakote.  Paskon noted that A.R. was in no acute psychiatric distress.  Paskon again diagnosed depression.  Paskon increased the Depakote to 500 mg. twice per day.  Paskon prescribed 90 Xanax 1 mg., half a tablet three times per day for A.R.’s nervousness, irritability, and mood swings, and also as an adjunct medication for A.R.’s neck

     

     

    pain.  Paskon believed that A.R. was bipolar.  Xanax is fast acting, and the Depakote was a small dose.  Paskon believed that a man with A.R.’s body weight could take a dosage of 6,600 mg. of Depakote per day.  It is normal to start with a small dose of Depakote to see if the patient experiences side effects such as dizziness and nausea, and then increase the dosage.  Depakote is also an antiseizure medication, and Paskon found it useful to control the numbness and tingling in A.R.’s hand.  Paskon noted that Dr. Goldring determined that A.R. needed to see a neurosurgeon. 

                195.  A.R. next saw Paskon on May 17, 1999.  A.R. still experienced irritability.  Paskon noted that A.R. was alert and oriented and was in no acute psychiatric distress.  Paskon prescribed 90 Xanax 1 mg. three times per day, Paxil 10 to 20 mg. once per day (Tr. IV at 26), and Depakote 500 mg. twice per day.  Paxil takes about three to four weeks to reach a therapeutic effect.  Xanax acts fast and makes its effect felt within 30 minutes to one hour.  Paskon believed that A.R. had been undertreated for his mental condition.  Paskon diagnosed anxiety reaction, post-traumatic stress disorder, and depression.  A.R. was referred to Dr. Madsen for a neurosurgical consultation. 

                196.  A.R. had the consultation with Dr. Madsen on June 1, 1999.  Dr. Madsen’s report summarizes a motor vehicle accident in 1989 and a motor vehicle accident in 1998, and then continues: 

    His neck pain has increased over the past year since this incident; he has become progressively depressed regarding his symptoms and limited activity. 

     

    Dr. Madsen diagnosed situational depression and suggested that A.R. take Wellbutrin. 

                197.  A.R. saw Paskon on June 22, 1999, for a pre-operative physical examination.  Paskon prescribed 90 Xanax 1 mg., half a tablet in the morning and one at bedtime.  Paskon’s diagnosis included anxiety reaction. 

     

     

                198.  Another doctor performed the neck surgery on A.R. on July 19, 1999, and A.R. went to Paskon for a follow-up visit on July 29, 1999.  Paskon noted that A.R. was alert and oriented and that his affect was mildly depressed.  Paskon again noted a diagnosis of depression.  Paskon prescribed 90 Xanax 1 mg. three times per day.  The Xanax was for anxiety and also as an adjunct medication for the neck pain. 

    199.  A.R. saw Paskon on August 6, 1999.  Paskon’s assistant noted “wants meds decreased.”  A.R. still complained of nervousness, anxiety, neck pain, and inability to sleep.  A.R. complained that he experienced mood swings since the surgery and that Depakote did not relieve the symptoms.  Paskon’s diagnosis included anxiety reaction and depression.  Paskon increased the Depakote to 500 mg. three times per day.  Paskon prescribed Celexa 20 mg. once per day.  Paskon noted that the Paxil was discontinued.  Paskon hoped to cut down on the Xanax, which was a controlled substance, if the Celexa, which was not a controlled substance, helped relieve A.R.’s anxiety.  Celexa was also an adjunct medication for pain treatment.  Celexa is an antidepressant and may also be used for anxiety.  Celexa is an SSRI, in the same category of medications as Paxil and Zoloft. 

    200.  August 25, 1999:  Paskon noted that A.R.’s depression was controlled with Celexa and that he had been sleeping more than usual.  Paskon noted that A.R.’s affect was depressed.  Paskon noted that Xanax relieved A.R.’s nervousness and helped him to sleep better.  Paskon’s diagnoses included depression and anxiety reaction.  Paskon prescribed Xanax 1 mg. three times per day.  Paskon again prescribed Celexa 20 mg. once per day.  

                201.  September 24, 1999:  Paskon noted bipolar disorder[1] under PFSH.  Paskon’s diagnosis included depression.  Paskon prescribed 90 Xanax 1 mg. three times per day and Celexa 20 mg. twice per day. 

     

     

     

                202.  October 25, 1999:  Paskon’s assistant noted that A.R. had loss of memory at times, mood swings, and a history of bipolar disorder.  The chart contains a note that A.R’s affect was within normal limits.  Paskon prescribed 90 Xanax 1 mg. three times per day and Depakote

    500 mg. three times per day.  Paskon’s diagnosis included depression.  Xanax was an adjunct therapy for pain and nervousness and also to help with insomnia and depression. 

                203.  November 23, 1999:  A.R. told Paskon’s assistant that he wanted to cut back on Depakote and antidepressants, but that he needed a stronger muscle relaxer.  Weight gain can be a side effect of Depakote, and A.R. had gained ten pounds.  Paskon noted that A.R. was alert.  Paskon’s diagnoses included anxiety reaction, depression, and myofascitis of neck/shoulder.  Paskon prescribed 90 Xanax 1 mg. three times per day and Celexa 20 mg. twice per day.  (Cf. Tr. 570.)  Paskon reduced the Depakote to 500 mg. twice per day.  Paskon made the reduction gradually because A.R.’s pain, numbness, tingling, and mood swings were under control, and he did not want these symptoms to recur. 

                204.  December 21, 1999:  Paskon’s assistant noted that A.R.’s anxiety was controlled with half a Xanax three times per day and that they were trying to wean A.R. off of the Xanax.  She noted that A.R. reported no mood swings or depression.  Paskon noted that A.R. was A&Ox3.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon prescribed 90 Xanax 1 mg., half to one tablet three times per day.  Paskon gave instructions to reduce the Xanax gradually by trying half a tablet once per day and one tablet twice per day, and if that was still effective, to reduce to half a tablet twice per day and one tablet once per day.   Paskon did not prescribe any more Xanax after that date. 

                205.  January 18, 2000:  A.R. reported that his neck pain and swelling were worse, that the fusion was still not healed, and that he was getting a second opinion from a physiatrist.  A.R. was unable to sleep because of the pain.  Under psychiatric examination, Paskon noted “alert and

     

     

    oriented” times three.  Paskon’s diagnoses included anxiety reaction, depression, and myofascitis syndrome.  Paskon prescribed Depakote 500 g. twice per day. 

                206.  February 22, 2000:  A.R. reported persistent neck and shoulder pain and that the fusion was not healing.  A.R. requested a referral to a muscle specialist.  Paskon noted that A.R. was alert and that Depakote helped to control his mood swings.  Paskon’s diagnoses included neck/shoulder myofascial pain, fibromyalgia, depression, and bipolar disorder.  Paskon prescribed Neurontin 300 mg. twice per day, and after one week, three times per day.  This was a small dosage compared to the normal dosage of 800 mg. three or four times per day.  Paskon prescribed the Neurontin instead of Depakote.  They are the same type of medication.  Neurontin is not a narcotic or a controlled substance.  Neurontin is an antiseizure medication, but Paskon used it as an adjunct for neuropathic pain, an off-label use because all other treatments had been ineffective for managing A.R.’s pain.  Neuropathic pain can cause numbness and tingling in the hand or finger.  Paskon hoped to avoid sending A.R. to a specialist 80 miles away and was aware that many of the pain clinics did not accept Medicaid, as he did.  Fibromyalgia is muscle pain and is essentially the same thing as myofascial pain.  Paskon believed that the terminology of “fibromyalgia” might be more acceptable for billing purposes.  The fibromyalgia was not a new condition, but the same thing for which Paskon had already been treating A.R.  Paskon found that bipolar disorder was in the same group of illnesses as anxiety and depression, and that the anxiety and mood swings were characteristic of that disorder.  A diagnosis of “bipolar disorder not otherwise specified” means that a patient has features of bipolar disease, but does not meet the criteria for any other specific bipolar disorder. 

                207.  March 16, 2000:  Paskon noted that A.R. was alert.  Paskon’s diagnoses included cervical disc syndrome and fibromyalgia of the neck/shoulder muscles.  Paskon’s prescriptions included Neurontin 300 mg. four times per day.

     

     

                208.  April 13, 2000:  Paskon’s assistant noted:  “needs Xanax againàtried to wean off but nerves are bad.”  Paskon noted:  “He has been irritable.  Nervousness since Xanax was D/C [discontinued].”  Under psychiatric examination, Paskon noted that A.R. was alert and oriented times three.  Paskon’s diagnoses included anxiety reaction, fibromyalgia, cervical disc syndrome, and depression.  Paskon prescribed Celexa 20 mg. once per day and then twice per day.  Paskon prescribed Serax, which is similar to Xanax but more potent.  Paskon also prescribed Buspar, which is an anti-anxiety medication, but is not a controlled substance.  Buspar takes longer to work, and Paskon was trying to avoid prescribing Xanax again. 

                209.  On May 11, 2000, Paskon’s assistant noted: 

    Nerves are off & on→ wants off of all the anxiety meds  dizziness of Buspar easing off . . .  hasn’t been taking Celexa→depression OK . . . wants off neurontin  moods are OK [with] Depakote

     

    A.R. wanted to discontinue the Celexa because it caused sexual dysfunction.  Paskon’s diagnoses included fibromyalgia, anxiety reaction, bipolar disorder, and depression.  Paskon prescribed Depakote 250 mg. once per day and increasing to twice per day.  Paskon also prescribed Neurontin 300 mg. four times per day.  The Depakote was for the mood swings, and the Neurontin was an adjunct for neuropathic pain because it helped control A.R.’s pain. 

                210.  June 7, 2000:  Paskon’s diagnoses included anxiety reaction and myofascitis of neck and shoulder.  Paskon did not prescribe any psychotropics on that date.

                211.  July 12, 2000:  Paskon’s diagnosis included “fibromyalgia (chronic intractable pain).”  Paskon’s prescriptions included Depakote 250 mg. three times per day and Neurontin 300 mg. three times per day.  Paskon did not prescribe any psychotropics on that date.

                212.  August 25, 2000:  Paskon’s diagnoses included neck/shoulder pain and fibromyalgia.  Paskon’s prescriptions included Neurontin 300 mg. three times per day.  Paskon did not prescribe any psychotropics on that date



                    [1]This is difficult to read, but we believe it to be the correct interpretation of Paskon’s handwriting.  

    • Moderator
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    July 18, 2015 8:19:03 PM PDT

                213.  September 25, 2000:  Paskon’s assistant noted that A.R. was seeing a therapist because he was angry and depressed.  Paskon noted that A.R. was seeing a psychiatrist for post-traumatic stress disorder.  A.R. reported that he was not sleeping well because of his pain, depression, and anxiety.  Paskon’s diagnosis included fibromyalgia.  Paskon did not prescribe any psychotropics on that date.

                214.  October 25, 2000:  A.R. reported that he saw Dr. Henderson, a neurosurgeon, who said his neck was healed up, but Dr. Henderson prescribed methadone for pain.  A.R. found that the methadone made him nauseated.  Paskon did not prescribe any psychotropics on that date.

                215.  May 9, 2001:  A.R. reported that he had been to the neurosurgeon, who had prescribed Celebrex, and that his pain was still with that medication.  Paskon’s diagnoses included fibromyalgia.  Paskon did not prescribe any psychotropics on that date.

    216.  Paskon’s records for A.R. are thorough and detailed. 

    Count IX:  J.R.

                217.  J.R. first went to Paskon on January 28, 1999.  A.R. was her husband.  Her chief complaint was inability to sleep.  She complained of nervousness.  A.R. had broken his neck and lost his job.  The couple was evicted from their home.  They had been without their own home for two months and were living with her mother-in-law.  J.R. was under a lot of stress.  She reported that she had taken Xanax to relieve her symptoms.  She had a crying spell during the initial visit, and Paskon noted that she was depressed.  Paskon also noted that she had a history of panic disorder and had chronic anxiety disorder.  Upon examination, Paskon noted that she seemed anxious.  The box for psychiatric examination was checked.  Under physical examination, Paskon noted that she was alert.  Paskon diagnosed anxiety reaction and depression.  Paskon prescribed Xanax because she was already on it, and it helped relieve her

     

     

     

    symptoms.  He also prescribed 30 Paxil 20 mg., to be taken at 6:00 in the evening.  Paxil is used for depression, anxiety, and panic disorder. 

                218.  Xanax is fast acting and does not stay in the body for very long. 

                219.  February 10, 1999:  J.R. complained of back pain and that she was still not sleeping well.  Upon physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included depression, insomnia, and anxiety reaction.  Paskon increased the Paxil to 20 mg. twice per day instead of once per day.  Paskon increased the number of Xanax 1 mg. to 90 tablets, to be taken three times per day.  Paskon started with a smaller number of pills on January 28, 1999, to see how the medication worked for J.R. 

                220.  February 17, 1999:  Paskon noted that J.R.’s nervousness and depression had improved.  He noted that she had had anxiety and depression for one year.  Paskon did not prescribe more Xanax that day.  Paskon noted Paxil 20 mg. twice per day, but it is unclear whether this was a new prescription or a note of what she was taking.

                221.  March 3, 1999:  Paskon noted that J.R. was sleeping better, but still having a sleeping problem.  The box for psychiatric examination was checked.  Upon physical examination, Paskon noted that she was alert, oriented, pleasant, and calm.  Paskon’s diagnoses included depression and insomnia.  Paskon prescribed Paxil 20 mg. twice per day.  Paskon did not prescribe more Xanax that day. 

                222.  March 23, 1999:  Paskon noted that J.R. was irritable, nervous, and shaky, and that Xanax controlled these symptoms.  He noted that she was depressed.  The box for psychiatric examination was checked.  Paskon noted that J.R. still had insomnia.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon prescribed 120 Xanax 1 mg., to be taken four times per day.  Paskon increased the number of Xanax to four times per day because her symptoms persisted. 

     

                223.  Paskon also prescribed Elavil on March 3, March 23, April 23, and May 21, 1999, to be taken at night.  Paskon used the Elavil as an adjunct for J.R.’s back pain and headache.  If the Elavil worked, he hoped to get her off of the Xanax. 

                224.  April 23, 1999:  Paskon noted that J.R. had nervousness and insomnia.  The box for psychiatric examination was checked.  On physical examination, he noted that she was alert.  He prescribed Elavil, but did not prescribe more Xanax that day. 

                225.  May 21, 1999:  Paskon noted that J.R. had insomnia.  Paskon’s diagnoses included anxiety reaction, insomnia, and depression.  Paskon’s prescriptions included 90 Xanax 1 mg. to be taken three times per day.  Paskon also prescribed Vistaril for anxiety, in addition to Xanax, on that date.  He did this in order to try to get her off the Xanax.  (Tr. 385.)[1]  Vistaril is a Schedule IV controlled substance. 

                226.  June 4, 1999:  Paskon noted that J.R. had a tremor and that her symptoms were relieved by Xanax.  He did not prescribe more Xanax on that date.  Paskon continued treating J.R. for lumbar back pain. 

                227.  June 23, 1999:  Paskon’s assistant noted that Xanax controlled J.R.’s anxiety, that J.R. was A&Ox3, with no acute distress, and that her affect was within normal limits.  The box for psychiatric examination was checked.  Paskon’s diagnoses included degenerative disc disease of the lumbar spine, lumbar back pain, and anxiety reaction.  Paskon’s prescriptions included 90 Xanax 1 mg., to be taken three times per day. 

                228.  July 7, 1999:  Paskon noted that J.R.’s nervousness had worsened since the Xanax was decreased.  The box for psychiatric examination was checked.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included anxiety disorder.  Paskon’s prescriptions included 60 Xanax 1 mg. to be taken three times per day. 

     

                229.  August 6, 1999:  Paskon noted that J.R. was nervous and irritable.  The box for psychiatric examination was checked.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon’s prescriptions included 90 Xanax 1 mg. to be taken three times per day.

                230.  August 25, 1999:  Paskon’s assistant noted A&Ox3, with no acute distress, and that J.R.’s affect was mildly depressed.  The box for psychiatric examination was checked.   Paskon’s diagnoses included anxiety reaction and depression.  Paskon’s prescriptions included 90 Xanax 1 mg. to be taken three times per day. 

                231.  September 20, 1999:  Paskon noted that J.R. had nervousness and depression due to personal and family problems.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included anxiety reaction and depression.  Paskon’s prescriptions included 90 Xanax 1 mg. to be taken three times per day, 60 Paxil 20 mg. to be taken twice per day, and Elavil 75 mg. to be taken at night. 

                232.  October 4, 1999:  Paskon’s assistant noted:  “Xanax helps anxiety-only takes them if absolutely has to.  ↓ stress at home.”  Paskon did not prescribe more Xanax or antidepressants that day. 

                233.  October 18, 1999:  Paskon’s assistant noted A&Ox3 and that the psychiatric examination was within normal limits.  The box psychiatric examination was checked.  Paskon’s diagnoses included “anxiety – well controlled.”  Paskon’s prescriptions included 90 Xanax 1 mg. to be taken three times per day. 

                234.  November 15, 1999:  Paskon’s assistant noted:  “Takes Xanax in AM & QS [at night] → helps a lot with anxiety.  Doesn’t take at work.”  Paskon did not prescribe more Xanax  or antidepressants that day. 

     

     

     

                235.  December 13, 1999:  Paskon’s assistant noted A&Ox3 and that J.R.’s affect was mildly anxious.  The box for psychiatric examination was checked.  Paskon’s diagnoses included anxiety reaction.  Paskon’s prescriptions included 90 Xanax 1 mg. to be taken three times per day.

                236.  January 11, 2000:  Paskon noted that J.R. had a history of panic disorder.  Paskon noted that her psychiatric condition was controlled with medication.  The box for psychiatric examination was checked.  Paskon noted that she was alert and oriented times four.  “Alert and oriented times three” is orientation to person, time, and place.  “Alert and oriented times four” means that J.R. was also aware of why she was there; i.e., to get refills of her medication.  Paskon’s diagnoses included anxiety reaction and panic disorder.  Paskon’s prescriptions included 90 Xanax 1 mg. to be taken three times per day.  

                237.  March 16, 2000:  Paskon noted that J.R.’s nervousness was relieved by Xanax and that she took Xanax to sleep at night.  Paskon noted that she had a history of chronic anxiety disorder and panic attacks.  The box for psychiatric examination was checked.  On physical examination, Paskon noted that she was alert.  Paskon’s diagnoses included anxiety reaction.  Paskon’s prescriptions included 120 Xanax 1 mg. to be taken every six hours prn.  J.R. had gotten a job, and Paskon was afraid that Medicaid would terminate her coverage.  He wanted to ensure that she had enough medication. 

                238.  June 15, 2000:  Paskon’s assistant noted that J.R. had a history of panic disorder.  Paskon’s assistant also noted:

    Xanax doesn’t make groggy—can’t take anything makes groggy works with machinery Nerves bothersome; x 1 mo. → stress at home.  Been off Xanax x 4 mo.  used Paxil, Vistaril not help

     

    The box for psychiatric examination was checked in the box designating within normal limits, and Paskon’s assistant noted A&Ox3.  Paskon’s diagnoses included anxiety reaction.  Paskon’s prescriptions included 60 Xanax 1 mg., half or one tablet prn. 

     

     

                239.  September 15, 2000:  The box for psychiatric examination was checked in the box designating within normal limits, and Paskon’s assistant noted A&Ox3.  Paskon’s assistant noted:  “uses Xanax PRN-almost out now.”  Paskon’s diagnoses included anxiety.  Paskon’s prescriptions included 30 Xanax 1 mg. to be taken every six hours prn. 

                240.  December 6, 2000:  Paskon’s assistant noted that J.R. was moody and that Xanax made her sleep.  Paskon’s diagnoses included anxiety reaction.  Paskon’s prescriptions included 60 Xanax 1 mg., half or one tablet every six hours prn. 

                241.  September 5, 2001:  Under ROS, Paskon noted that J.R. still had nervousness and insomnia.  The box for psychiatric examination was checked as within normal limits.  Paskon’s diagnoses included anxiety and insomnia.  Paskon’s prescriptions included 60 Xanax 1 mg.

    Prescription Practice

                242.  Paskon believed that he could evaluate a patient’s psychiatric condition based on his interaction with the patient, noting factors such as whether the patient was smiling or talkative.  (Tr. 365.)  He asked questions to determine the patient’s condition.  (Tr. 374.) 

                243.  A patient may take up to eight Xanax per day, and a doctor could give a three- month supply, but Paskon only gave one month at a time.  (Tr. 484.)

                244.  Prescriptions for Schedule II controlled substances are limited to a 30-day supply with no refills allowed, but may be increased to a three-month supply if the prescriber writes the medical reason on the prescription.  Prescriptions for Schedule III, IV and V controlled substances are limited to a 90-day supply with a maximum of five refills allowed.  Paskon’s practice for controlled substances was to prescribe with no refill, even though refills are authorized for Schedule III, IV and V controlled substances. 

                245.  The Diagnostic and Statistical Manual (“DSM”) is a guideline, but is not always followed in practice by a general practitioner. 

     

     

                246.  The medications at issue in this case are safe when used as prescribed, and would not require a notation in the patient’s chart discussing the effects and/or side effects of the medications. 

                247.  Paskon recognized that pain and psychiatric evaluation go together.  (Tr. 817.) 

                248.  Patients that have the same condition may not have the same level of pain because pain is subjective and individual pain tolerance varies.  (Tr. 1544.)

                249.  It is not common for family physicians to actually use the term “intractable pain” in their records.  There is nothing inappropriate about failing to write it down.  (Tr. 1547-48.)

    The Parties’ Experts

                250.  The Board’s expert, Dr. Peterson, is a psychiatrist.  He completed his residency in psychiatry and has never been a general practitioner.  He is board certified in psychiatry and forensic psychiatry.  In his forensic psychiatry practice, he evaluates and treats patients who are involved in court proceedings. 

                251.  Paskon’s expert, Dr. Huss, is a former member of the Board and is a general practitioner inRolla,Missouri.  Dr. Huss is board certified in family practice and was the chairman of the Board’s Intractable Pain Committee. 

    Conclusions of Law

                We have jurisdiction to hear this case.  Section 621.045, RSMo 2000.  The Board has the burden of proving that Paskon has committed an act for which the law allows discipline.  Missouri Real Estate Comm’n v. Berger, 764 S.W.2d 706, 711 (Mo. App., E.D. 1989). 

    Motions in Limine

    A.  Pharmacy Records

                Paskon filed a motion in limine as to any evidence concerning prescriptions where the Board failed to produce original prescriptions signed by Paskon.  Paskon asserted that the

     

     

    original prescriptions were not provided to him in discovery.  The Board introduced pharmacy profiles into evidence, which are computer printouts from the pharmacies of prescriptions filled there.  Paskon argues that it is possible that prescriptions were forged or altered, which would not be reflected in the pharmacy profiles, and that the original prescriptions are necessary.  The Board’s counsel asserted that the failure to provide the original prescriptions to Paskon in discovery was an oversight.  During the hearing, the Board’s counsel represented that he had by that time provided all of the original prescription records to Paskon that he had in his possession.  (Tr. IV 71.)  Dr. Peterson testified that the original prescriptions would not have made any difference in his review.  (Tr. 40-41.)  We do not by any means condone a party’s failure to comply with discovery.  However, we have made our findings of fact based on Paskon’s records, which reflect Paskon’s original prescriptions.[2]   We deny the motion in limine. 

    B.  Expert Testimony

                Paskon filed a motion in limine to disallow the testimony of Dr. Peterson.  Paskon argues that his testimony does not meet the standards set forth in State Bd. of Regis’n for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003), because Peterson is not an expert in the field of general practice.  In McDonagh, the Court construed § 490.065.3, which provides that “facts or data in a particular case upon which an expert bases an opinion or inference . . . must be of a type reasonably relied upon by experts in the field.”  This Commission found no cause to discipline Dr. McDonagh for his practice of chelation therapy.  The Court affirmed.  As to expert testimony, the Court stated: 

    Dr. McDonagh argued, and the AHC appeared to determine, that the relevant “field” for purposes of this inquiry is the universe of medical practitioners who utilize chelation therapy.  And, as the record shows that Dr. McDonagh followed the protocol for use of

     

     

    chelation therapy approved by the approximately 1,000 doctors who are organized into ACAM, it concluded that his experts’ testimony as to whether his treatments were appropriate was admissible.  But, to limit the relevant “field” to only those doctors who have already expressed their view that the therapy in question is appropriate would make the inquiry into acceptance by experts in the field pointless, for, by definition, only those who had accepted the therapy would be asked for their opinion.  The relevant field must be determined not by the approach a particular doctor chooses to take, but by the standards in the field in which the doctor has chosen to practice.  As relevant here, Dr. McDonagh chose to treat patients with vascular disease.  The Board’s claim is that Dr. McDonagh engaged in repeated negligence or misrepresentation and was otherwise in violation of the relevant statutes in his provision of chelation therapy for these patients.  Therefore, the relevant field is doctors treating persons with vascular disease.  The facts or data on which Dr. McDonagh’s experts rely, therefore, must be those perceived by them at trial or must be of a type reasonably relied on by doctors treating vascular disease. 

     

    McDonagh, 123 S.W.3d at 156-57.  Paskon argues that Dr. Peterson is not a qualified expert in the relevant field because he is a psychiatrist and does not treat chronic pain and other physical conditions.  At issue in McDonagh was whether chelation therapy was acceptable as a treatment for vascular disease and not just to remove heavy metals from the blood.  Therefore, it makes sense, as the Court stated, that the relevant “field” should not be limited to those who practice such treatment, which could be deemed experimental in medical circles. 

                Many of Paskon’s patients had psychiatric conditions.  Dr. Peterson is a psychiatrist.  He is an expert in the field, even though we recognize that a general practitioner does not have the luxury of specializing in a particular area.  We do not strike Dr. Peterson’s testimony, and we deny Paskon’s motion in limine.  However, we give greater weight to Dr. Huss’ testimony than to Dr. Peterson’s because Dr. Huss is a general practitioner.    

                Paskon also notes two reported court decisions in which the courts found Peterson’s testimony unreliable.  In State v. Kenley, 952 S.W.2d 250, 265 (Mo. banc 1997), the court quoted the trial court’s findings regarding Peterson’s diagnosis of the defendant:  “The Court

     

     

    does not find Dr. Peterson’s testimony worthy of belief.”  The Court found that the trial court’s “findings regarding Dr. Peterson are supported by the evidence in the record.” Id.  In Simmons v. Luebbers, 299 F.3d 929, 934 (8th Cir. 2002), Dr. Peterson had testified at the defendant’s post-conviction hearing that the defendant had not been competent to stand trial:

    However, the post-conviction court rejected Dr. Peterson’s opinion, noting that it had “seldom encountered an expert displaying less credibility in a given case. . .”  The post-conviction court observed Dr. Peterson as he testified, and concluded that he was “an advocate” who had an “evasive and incredible” demeanor when cross-examined about differences between his diagnosis and that of Drs. Fleming and Daniels.

     

    (Citations omitted.)  The court upheld the Missouri Supreme Court’s opinion that Simmons had received effective assistance of counsel in spite of counsel’s failure to pursue the issue of Simmons’ competency to stand trial.  Id.  Our conclusions rest on our own evaluation of the evidence in this case and not on what other courts may have thought of Peterson’s testimony. 

                McDonagh requires that the expert identify the standard of care, which requires a showing of whether the respondent showed the skill and learning ordinarily used under the same or similar circumstances by the members of the doctor’s profession.  123 S.W.3d at 159. 

    Dr. Peterson testified as to whether Paskon met the standard of care under this definition. 

    (Tr. 41-42.)  We do not strike his testimony.   

    C.  Testimony of Julia Harkelroad

                Paskon also filed a motion in limine as to Julia Harkelroad’s testimony.  We took with the case Paskon’s objections to her testimony.  (Tr. 802-06.)  Harkelroad was a student intern in the Board’s counsel’s office, and he prepared a graphic chart showing alleged overlapping prescriptions of medications.  (Ex. 18.)  Paskon objected on the basis that she was an extension of the lawyer and thus could not testify in the case.  Harkelroad was not a law student, as Paskon asserts, but was a senior in college.  Paskon also charges that her testimony should not have been

     

     

    allowed in the middle of Paskon’s evidence.  This was a matter of scheduling.  We overrule the objections to Harkelroad’s testimony, and we deny the motion in limine.  However, we give little weight to Harkelroad’s testimony and to Exhibit 18.  Exhibit 18 was admittedly based on certain assumptions and is merely a visual representation.  We are required to make written findings of fact and conclusions of law, and we have done so on the basis of our own review of the record.  A visual representation is not the basis for a finding of fact.    

    Evidentiary Rulings

     

    During the 11-day hearing, some of the objections to proffered evidence were taken with the case.  Paskon objected to some of the questioning of Dr. Peterson as exceeding the scope of cross-examination.  (Tr. 277-78.)  As a general rule, redirect examination should not go beyond the testimony elicited during cross-examination.  However, that rule yields to the rule that the trial court in its discretion may allow the redirect examination to exceed the scope of cross-examination.  State v. Corkins, 612 S.W.2d 35, 39 (Mo. App., W.D. 1981).  We overrule the objection, but the testimony was in regard to patients that the Board later dropped from the second amended complaint; thus, the testimony does not affect our decision. 

    Paskon also objected to Dr. Peterson’s testimony as to the standard for record keeping, asserting that this was beyond the scope of the second amended complaint.  (Tr. 1566.)  Paragraphs 47 and 68 of the second amended complaint assert that Paskon failed to document the basis for medicines that he prescribed.  Therefore, recordkeeping is at issue in this case, and we overrule the objection to the testimony regarding standards for record keeping. 

    The Disciplinary Statute and Definitions

                The Board alleges that there is cause for discipline under § 334.100.2,[3] which provides:

     

     

     

                2.  The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any certificate of registration or authority, permit or license required by this chapter or any person who has failed to renew or has surrendered the person’s certificate of registration or authority, permit or license for any one or any combination of the following causes:

     

    *   *   *

     

                (4) Misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of the functions or duties of any profession licensed or regulated by this chapter, including, but not limited to, the following: 

     

    *   *   *

     

                (h) Signing a blank prescription form; or dispensing, prescribing, administering or otherwise distributing any drug, controlled substance or other treatment without sufficient examination, or for other than medically accepted therapeutic or experimental or investigative purposes duly authorized by a state or federal agency, or not in the course of professional practice, or not in good faith to relieve pain and suffering; or not to cure an ailment, physical infirmity or disease, except as authorized in section 334.104;

     

    *   *   *

     

                (5) Any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter.  For the purposes of this subdivision, “repeated negligence” means the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant’s or licensee’s profession[.]

     

                Misconduct is the intentional commission of a wrongful act.  Grace v. Missouri Gaming Comm’n, 51 S.W.3d 891, 900 (Mo. App., W.D. 2001).  Fraud is an intentional perversion of truth to induce another to act in reliance upon it.  Hernandez v. State Bd. of Regis’n for the Healing Arts, 936 S.W.2d 894, 899 n.2 (Mo. App., W.D. 1997).  It requires the intent that others

     

     

    rely on the misrepresentation.  Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983); see also Missouri Dental Bd. v. Bailey, 731 S.W.2d 272, 274-75 (Mo. App., W.D. 1987).  A misrepresentation is a falsehood or untruth made with the intent of deceit rather than inadvertent mistake.  Hernandez, 936 S.W.2d at 899 n.3.   Dishonesty is a lack of integrity, a disposition to defraud or deceive.  MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 359 (11th ed. 2004).  Dishonesty includes actions that reflect adversely on trustworthiness.  See In re Duncan, 844 S.W.2d 443, 444 (Mo. banc 1992). 

    Unprofessional conduct is conduct that does not conform to the technical or ethical standards of the profession.  MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 991 (11th ed. 2004).  Unethical conduct and unprofessional conduct include “any conduct which by common opinion and fair judgment is determined to be unprofessional or dishonorable.”  Perez v. Missouri Bd. of Regis’n for the Healing Arts, 803 S.W.2d 160, 164 (Mo. App., W.D. 1991).  Expert testimony may not be required to establish unprofessional conduct under the latter definition.  Id. “Ethical” relates to moral standards of professional conduct.  MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 429 (11th ed. 2004).

                Harmful means “of a kind likely to be damaging : INJURIOUS[.]”  Id. at 530.  Dangerous means “able or likely to inflict injury or harm[.]”  Id. at 292. 

                Incompetence is a general lack of, or a lack of disposition to use, a professional ability.  Forbes v. Missouri Real Estate Comm’n, 798 S.W.2d 227, 230 (Mo. App., W.D. 1990).  Gross negligence is a deviation from professional standards so egregious that it demonstrates a conscious indifference to a professional duty.  Duncan v. Missouri Bd. for Arch’ts, Prof’l Eng’rs & Land Surv’rs, 744 S.W.2d 524, 533 (Mo. App., E.D. 1988).

     

     

     

    Count II:  J.L.[4]

    A.  Conduct Set Forth in the Board’s Second Amended Complaint

                Throughout this decision, we quote the Board’s second amended complaint in order to determine whether there is a basis for discipline under the allegations that the Board has made.  All references to paragraphs are to the Board’s second amended complaint.   

    ¶ 35: 

    On October 7, 1999, patient J.L. filled a prescription from Dr. Paskon for Oxycontin 40 mg, sixty (60) tablets, with instructions to take one every twelve (12) hours.  On October 11, 1999, patient JL filled another prescription from Dr. Paskon for Oxycontin 40mg, sixty (60) tablets, with instructions to be taken once every eight (8) hours.

     

    ¶ 36: 

     

    Patient JL received three prescriptions each for a thirty-day supply of Oxycontin in one month. 

     

    Paskon had no knowledge of when his patients filled prescriptions, and the date of filling is irrelevant.  If prescriptions were supposedly overlapping, the important point is when Paskon prescribed them.  On October 1, 1999, Paskon prescribed 60 Oxycontin 40 mg. to be taken every 12 hours.  That is a 30-day supply.  There is no evidence in the record that Paskon prescribed any Oxycontin on October 7, 1999, or that J.L. even filled a prescription for Oxycontin on that date.  On October 11, 1999, Paskon prescribed 60 Oxycontin 40 mg. to be taken every eight hours.  This is another 20-day supply, and it was issued 19 days before the October 1, 1999, prescription would have been exhausted. 

    Dr. Peterson testified that overlapping prescriptions violates the standard of care.  (Tr. 125.)  After reviewing the Board’s calendar graph for J.L. (Ex. 18), Peterson testified that the overlapping prescriptions:

     

     

     

    provided the opportunity for abuse and diversion of medicine in this patient.  That’s what it tells me and that this patient, in fact, ultimately did that.

     

    (Tr. 1644.) 

    There is no evidentiary basis in the record for Dr. Peterson’s statement that J.L. abused and diverted medication.  We have already discussed the calendar graphs and have given them no weight.  Dr. Peterson testified that the standard of care requires that a doctor keep track of how much medicine is being prescribed to the patient, and not provide excess amounts of medication for over a day or two.  (Tr. 1617, 1622.)  It is unrealistic to expect a patient to be able to make and keep appointments with a doctor within a day or two before a prescription expires.  We give no weight to Dr. Peterson’s opinion because he is a forensic psychiatrist and not a physician in general practice.  The Board’s argument would require doctors to count pills and render them liable for counting errors.  We give much greater weight to the testimony of

    Dr. Huss, who is a general practitioner.  Dr. Huss demonstrated great knowledge and experience in proper prescription practices.  Dr. Huss reviewed the records and found nothing wrong with Paskon’s prescriptions. 

    Paskon also argues that J.L. suffered from vomiting due to her migraine headaches.  Paskon documented frequent episodes of vomiting in J.L.’s chart.  Based on Paskon’s testimony, we have found that he had difficulty in keeping her medications on schedule because she vomited up her pain pills. 

    We conclude that Paskon did not violate the standard of care by prescribing one prescription of Oxycontin within 11 days after prescribing the previous 30-day supply. 

    ¶ 38: 

    On August 5, 1999, patient JL filled prescriptions from Dr. Paskon for Flexeril, Soma, Baclofen, Dilantin, Oxycontin, Lorcet, and Valium. 

     

     

     

    As we have already stated, the date of filling of prescriptions is irrelevant.  Further, the record does not show that J.L. filled any prescriptions for Flexeril, Soma, Baclofen, or Valium from Paskon on August 5, 1999.  (Ex. 19.)  She filled a prescription for Valium on August 6, 1999, and prescriptions for Baclofen and Cyclobenzaprine from Paskon on August 11, 1999. 

    ¶ 39: 

     

    Flexeril, Soma, and Baclofen are all used to control muscle spasms and cause muscle relaxation. 

     

    This paragraph was admitted by Paskon.

     

    ¶ 40:

     

    In addition to Flexeril, Soma, and Baclofen, Dr. Paskon had already been prescribing Dilantin to JL. 

    ¶ 41: 

     

    Dr. Paskon admitted that it was a mistake to prescribe the combination of muscle relaxers and in addition, it was a mistake to prescribe the muscle relaxers while she was also taking Dilantin. 

     

    When questioned whether he had ever told the Board’s investigator that it was a mistake to prescribe Flexeril and Baclofen together, Paskon replied: 

    No, I did not say that.  What I said was this is not ordinarily my way of prescribing these two medications together.

     

    (Tr. 1355.)  Paskon prescribed them together because Dr. McKinney had done so and two previous neurologists had done so. 

                Paskon did not prescribe Soma to J.L. until August 27, 1999, and he replaced the Flexeril with Soma.  Paskon never prescribed Soma in combination with Flexeril and Baclofen. 

               McKinneyalso prescribed Dilantin in addition to Flexeril and Baclofen.  Paskon merely continued whatMcKinneyhad prescribed.  The Board presented no evidence to show that this was improper or that this combination was harmful to the patient. 

     

     

     

    ¶ 44: 

    Dr. Paskon provides multiple controlled substance prescriptions on the same prescription blank (October 7, 1999). 

     

    There is no evidence showing that Paskon provided multiple controlled substance prescriptions on the same prescription blank.  Dr. Peterson’s testimony on this issue is confusing: 

                Q:  You recall when I took your deposition concerning this patient that we spent some time discussing whether it was unlawful for a physician to write multiple prescriptions for a controlled substance on one sheet of paper?

     

                A:  Yes.

     

                Q:  And it was your opinion at that time that it was unlawful, wasn’t it?

     

                A:  Well, I don’t believe I gave a totally clear opinion.  It’s my opinion, and I believe it’s either a DEA requirement or maybe a Missouri BNDD requirement, that controlled substance prescriptions are limited to one per actual prescription plan. 

     

                Q:  So you still believe that’s the case? 

     

                A:  Yes.  And I also testified if that’s outdated information, I’ll accept that also.

     

                Q:  If, in fact, that’s not correct, it would not be a violation of the standard of care for him to do so?

     

                A:  Right.  And, like I said in my deposition, I brought -- I don’t know whether I said this or not -- but in my deposition I brought it up because it was a significant issue before the investigators of the BNDD, which is strictly not a medical issue.  It was mostly brought up as an observation that they made. 

     

    (Tr. 204-05.)  Dr. Peterson’s testimony is equivocal, but he specifically stated that this is “not a medical issue.”  Paskon did not believe that there was anything inappropriate about writing a prescription for more than one controlled substance on one piece of paper (Tr. 1241), and the Board has pointed to no authority prohibiting a doctor from doing so.  Even if Paskon wrote

     

     

     

    prescriptions for more than one controlled substance on a piece of paper, this did not violate the standard of care.  

    ¶ 45: 

     

    In addition to more than one prescription per prescription blank, Dr. Paskon provided overlapping prescriptions of Lorazepam, Diazepam, Alprazolam, Hydrocodone, and Oxycodone.  There was no rationale for this polypharmacy as evidenced by the Medicine Shoppe Pharmacy Profile. 

     

    The Board’s terminology is confusing, as Dr. Peterson testified that “polypharmacy” is using more than one drug to treat a particular problem when one drug was sufficient.  (Tr. 1634.) 

    Dr. Peterson elsewhere testified that polypharmacy is treating a patient with more than one medicine from the same class.  The second amended complaint, however, appears to use the term to refer to overlapping prescriptions for the same medication.  It is also unclear what the Board means by its statement that the prescriptions are “large.”  Paskon’s prescriptions of Lorazepam, Diazepam, and Alprazolam were within the manufacturer’s recommended dosages and thus were not “large.” 

    ¶ 46:

     

    Dr. Paskon provided overlapping early large prescriptions of Lorazepam, Diazepam, and Alprazolam.  He is providing simultaneous prescriptions of Oxycontin and Hydrocodone/APAP (August 5, 1999 and October 1, 1999).  This is within a context of several other medicines provided for various conditions.  This is obviously not the complete pharmacy profile.

     

    We are unsure what the Board means by the statement:  “This is obviously not the complete pharmacy profile.”  We are similarly unsure of the import of the Board’s statement that this is “within a context of several other medicines.” 

                The second amended complaint asserts that Paskon provided simultaneous prescriptions of Oxycontin and Hydrocodone/APAP.  Dr. Peterson complained that Paskon did not have a

     

     

    rationale for using multiple different drugs within the same class.  (Tr. 125.)  However, Dr. Huss reviewed Paskon’s records and found nothing wrong with his prescriptions.  (Tr. 1450-54.)  We give greater weight to the opinion of Dr. Huss as a family practitioner.  Paskon prescribed Lorcet for breakthrough pain.  The Board has not shown that it was below the standard of care to prescribe Oxycontin and Lorcet simultaneously. 

                Dr. Peterson also complained that Paskon should not have used Lorazepam, Diazepam, and Alprazolam without any rationale as to why one of these medicines alone would not be sufficient.  (Tr. 126-27.)  However, the second amended complaint does not allege that it was improper to prescribe these medications at the same time.  Instead, the second amended complaint refers to “overlapping” and “early” prescriptions, which we take to mean that prescriptions for a particular medication overlapped each other.  The Board asserts that this was “n addition to more than one prescription per prescription blank.” 

    Paskon prescribed a 30-day supply of Xanax on July 13, 1999.  J.L. was hospitalized and was discharged on July 26, 1999.  Xanax was a discharge medication, but it is not clear if this was a new prescription.  Paskon prescribed Xanax on August 5, 1999, but we cannot tell for how many days because the records do not say.  After that, however, Paskon prescribed 30-day supplies of Xanax to J.L. on August 17, September 10, October 1, and October 7, 1999.  These 30-day supplies overlapped to an extent, but the Board has failed to establish that this violated the standard of care. 

                Paskon prescribed Valium on August 6, 1999.  We cannot tell how many days’ supply this was.  He again prescribed Valium on August 27, 1999.  Although this date is close, we cannot tell whether the prescriptions were overlapping because we cannot tell how many days’ supply Paskon prescribed on August 6.

     

     

     

                Paskon prescribed a 30-day supply of Ativan on August 17, 1999, and then a 15-day supply on September 10, 1999.  The second prescription was before the first one would have run out.  There are no other overlapping prescriptions of Ativan, as Paskon prescribed a 30-day supply on October 7, a 15-day supply on December 15, and a 30-day supply on December 30, 1999. 

                Paskon prescribed a 20-day supply of Oxycontin on August 27 and another 20-day supply on September 10.  He prescribed a 30-day supply on October 1 and a 20-day supply on October 11.  He prescribed a 30-day supply on December 15, a 45-day supply on December 30, 1999, and another 45-day supply on January 24, 2000. 

                Paskon prescribed a 15-day supply of Lorcet on August 5, 1999, and another 15-day supply 12 days later, on August 17, 1999.  Ten days later (August 27, 1999), Paskon prescribed another 15-day supply.  On October 1, 1999, he prescribed a 15-day supply and then prescribed another 15-day supply on October 11, 1999, 11 days later.

    These prescriptions of Oxycontin and Lorcet overlapped to an extent.  However, as we have stated, we give more weight to Dr. Huss’ expert testimony than to Dr. Peterson’s because he is a general practitioner.  The Board has not established that Paskon violated the standard of care.

    ¶ 47: 

                  

    The patient chart for Patient J.L. does not document a basis for the various medicines prescribed.

     

    “Various medicines prescribed” is not specific enough to give Paskon notice of what medicines are involved.  Paskon prescribed many medications to J.L. for a variety of conditions.  We read the second amended complaint to include only the medicines specifically named therein and not every medicine prescribed for every condition. 

     

                The Board argues that Paskon lacked sufficient rationale for prescribing Xanax on

    May 11, 1999, and that Paskon’s records fail to adequately diagnose anxiety.  J.L. told Paskon that Dr. McKinney had prescribed Xanax for anxiety.  Paskon examined her and determined that she had nervousness.  Dr. Huss testified that a doctor is not required to have records from prior doctors and that the doctor must rely on what the patient says, along with his or her own examination.  Dr. Huss also testified that it is easy for a general practitioner to diagnose anxiety.  Dr. McKinney also prescribed Xanax from the first visit and accepted J.L.’s report that she was already taking it.  Dr. McKinney’s office records do not document any more detailed an examination for anxiety than Paskon’s.  Paskon did not violate the standard of care by failing to document a basis for prescribing Xanax to J.L. 

    Dr. Peterson’s testimony is not very helpful.  He testified: 

    [O]nce again, Dr. Paskon commented that he didn’t write all the detail down, this is page 1258, that he found the patient on page 1290 that when he increased the dosage of narcotics the patient’s anxiety went down.

     

                I thought this was a particularly important symptom and sign for Dr. Paskon that may indicate -- well, that would have in my assessment strongly raised the question that this patient was using excess amounts of medicine because one of the prominent symptoms of narcotic withdrawal that is any time the patient’s amount of narcotics supply goes down and they can’t keep their serum level up one of the first signs is anxiety and there are other physiological signs, but that to me would have been an important clinical feature to look into right then.  He didn’t that I can tell. 

     

    (Tr. 1633.)  We cannot tell what Dr. Peterson is talking about.  The transcript, page 1290, contains no reference to the patient’s anxiety going down when the dosage of narcotics is increased.  It merely contains a statement by Paskon that he did not write down all the details regarding the patient’s nervousness.  It would appear to us, without the aid of medical training, that if the patient’s anxiety goes down when the dosage of narcotics is increased, that’s a good thing. 

     

     

                Paskon testified that he tried Valium instead of Xanax on August 27, 1999, to see if it was more effective than Xanax in helping her muscle spasms and also in calming her nerves. 

    (Tr. 1297.)  Paskon had also prescribed Valium on August 6, 1999, one day after prescribing Xanax.  Both of these medications are anxiolytics.  Therefore, we conclude that Paskon sufficiently documented a basis for prescribing Valium.   

                Dr. Peterson also testified that Paskon did not establish a basis in the record for this patient in order to be subject to the protections of the intractable pain act.  (Tr. 127.)  The second amended complaint does not allege that Paskon failed to establish a basis for the intractable pain act.  The second amended complaint alleges that “[t]he patient chart for patient J.L. does not document a basis for the various medicines prescribed.”  This hints of a lack of justification for prescribing the medicines, but does not say so.  Instead, the complaint is specific as to lack of documentation, not lack of a basis for the medication.  We have found as a fact that Paskon documented a basis in J.L.’s chart for the medications that he prescribed to her.  Dr. Peterson complained about lack of documentation as to Neurontin (Tr. 1641-42), but that is not one of the medications raised in the second amended complaint.  

    ¶ 48: 

     

    Physical signs of chemical dependency are weight loss, drowsiness or altered moods.

     

    Paskon admitted this paragraph.  It is unclear what the Board is trying to accomplish with this allegation.  The Board does not allege that J.L. was chemically dependent.  The Board does not establish any basis for discipline with this allegation.  

    ¶ 49: 

     

    In August 2000, Dr. Paskon stated that he diagnosed patient J.L. to have hyperthyroidism, that she was nervous, could not sleep and had weight loss.

     

     

     

    The Board agreed at hearing to dismiss its complaint as to allegations in Count II that occurred after January 27, 2000.  Therefore, the August 2000 period is no longer at issue. 

    ¶ 52:

    Dr. Paskon’s conduct in prescribing large amounts of narcotics for long periods of time and specifically in prescribing certain medications in combination without documenting a sufficient examination fell below the standard of care required for physicians and constitutes negligence. 

     

    The prescriptions were within recommended therapeutic range.  We have discussed the overlapping prescriptions.  The Board offered no expert testimony showing that Paskon improperly prescribed medication to J.L. “for long periods of time.”  The Board did not offer any expert testimony as to prescribing medications in combination, other than what we have already discussed. 

    B.  Basis for Discipline for Treatment of J.L.

                The Board asserts that Paskon is subject to discipline for misconduct, fraud, misrepresentation, dishonesty, and unethical or unprofessional conduct.  (Second Amended Complaint ¶ 50.)  There is nothing in any conduct alleged by the Board, much less in the conduct proven, that establishes fraud, misrepresentation, or dishonesty.  Even Dr. Peterson agreed that Paskon intended to prescribe medications for a therapeutic purpose, in the course of professional practice, and to cure an ailment, physical infirmity, or disease.  (Tr. 210, 212.)  Therefore, there is no cause to discipline for unethical or unprofessional conduct.  Because Paskon did not intend any wrongdoing, there is no cause to discipline for misconduct.  There is no cause for discipline under § 334.100.2(4).

                The Board also asserts that Paskon is subject to discipline for incompetency, negligence, repeated negligence, and gross negligence (Second Amended Complaint ¶ 53), and for conduct

     

     

     

    that was or could have been harmful or dangerous to the mental or physical health of the patient.  (Second Amended Complaint ¶ 51.)

                Negligence, in and of itself, is not cause for discipline under any provision of § 334.100.2.  Only repeated negligence or gross negligence is cause for discipline. 

    We have found no violation of the standard of care.  Therefore, we find no cause for discipline under § 334.100.2(5) for repeated negligence or conduct that was or could have been harmful to the mental or phys

    • Moderator
    • 1957 posts
    July 18, 2015 8:20:39 PM PDT

    Count III:  N.M.

    A.  Diversion of Controlled Substances

                The Board alleges that Paskon prescribed controlled substances to N.M., knowing that she sold them.  This is the only count in which the Board makes an allegation that a patient diverted controlled substances.   

    ¶ 60: 

     

    Dr. Paskon received a list of patients [sic] names from the DEA that were reported to be selling the medications he prescribed to them.

     

    Paskon denied receiving a list from the DEA, and there is no evidence that he did.  He testified that he provided the DEA with a list of suspected drug abusers that a patient had provided to him. 

     

     

     

    ¶ 61:

     

    Dr. Paskon continued to prescribe controlled substances to those patients that were on the list and known to sell the medications they were receiving from him.

     

    This allegation is not substantiated by the record.  Paskon testified that he inquired of each of the patients on the list and that they denied any drug dealing.  Paskon reviewed the records of each patient on the list and determined that they were not receiving unusual amounts of medication and that they had a need for the medication.  Paskon did not believe that they were selling or abusing drugs.  The Board presented no witness testimony to support this allegation.  Besides the experts, Paskon was the only witness.  The Board’s counsel read from a report by the DEA when questioning Paskon regarding the DEA investigation (Tr. 895-96), but did not offer the report into evidence.  The Board presented no evidence of any sort of determination against Paskon by the DEA.  The Board presented no evidence of any action by the DEA other than its initial interview with Paskon.  No documents or reports by the DEA are in the record in this case.  Nor is there any evidence of any restriction or enforcement action against Paskon by the BNDD or of any criminal proceeding against Paskon.  We have found Paskon’s testimony credible and have found no reason to question that his intent in prescribing medications was for therapeutic treatment only.

    ¶ 64:

     

    N.M. sells some of her prescriptions to her brother who then sells them on the street.

     

    ¶ 65:

     

    N.M. and/or her brother have bought drugs from other patients of Dr. Paskon’s, including but not limited to S.K., C.H. and V. and Y.S., who sell the drugs they receive from him.

     

    There is absolutely no evidence in the record to support these allegations.  We note that even

    Dr. Peterson testified that it was Paskon’s intent to prescribe medications to N.M. for a medically

     

     

    accepted therapeutic purpose, in accordance with medical practice, and to cure an ailment, physical infirmity or disease.  (Tr. 203-04.)  Dr. Peterson testified that Paskon’s assessments and diagnostic process were flawed, but not his intent.  There is not even any evidence that N.M.’s name was on the list that Paskon provided to the DEA.  Paskon accepted her explanation for the incident that led to her arrest; he believed that she carried some pills with her rather than carrying the whole bottle.  When N.M. visited Paskon on October 2, 2002, after being in prison, Paskon had her sign a reaffirmance of the pain management agreement. 

    ¶ 66: 

    Dr. Paskon told patient N.M. on one of her last office visits before her arrest that she was going to have to get an MRI soon to cover himself. 

     

    There is nothing in the record to substantiate this allegation.  Again, the only witnesses in this case were Dr. Peterson, Dr. Huss, and Paskon.  It is true that Paskon’s records contain repeated statements that he was ordering an MRI of the lumbar spine for N.M.  Why the MRI was not done before October 9, 2000, is not clear from the record.  Paskon’s records indicate that N.M. was arrested in June or July 2000, but that she was released pending charges.  However, there is no evidence anywhere in the record that Paskon told N.M. that she needed to get an MRI soon to cover himself. 

                ¶ 62:

    On October 10, 2000, patient N.M. was arrested for a license violation, at which time she had several prescriptions for controlled substances issued by Dr. Paskon in her possession.

     

    It is true that N.M. was arrested.  (Tr. 1189-90, 1235.)  However, the record does not show that the arrest occurred on October 10, 2000.  The only thing in the record indicating the date of the arrest is N.M.’s report to Paskon on October 2, 2002, that she had been arrested in June or July of 2000. 

     

     

    Further, there is nothing in the record to suggest that N.M. had prescriptions for controlled substances from Paskon in her possession.  There are no police records or criminal records from this incident in evidence in this case.  Again, the only witnesses in this case were Dr. Peterson, Dr. Huss, and Paskon.  The only evidence that we have of this incident is what is in Paskon’s patient records and what Paskon testified to.  Paskon testified, and his records show, that N.M. was arrested for possession of a controlled substance.  There is nothing about any prescriptions from Paskon.  This part of the allegation is not substantiated, and even if it were, the Board does not show the significance of having prescriptions from Paskon in her possession. 

    B.  Motion to Strike

                At hearing, Paskon moved to strike paragraphs 60-62 and 64-66.  (Tr. 282-83.)  We took the motion with the case.  It is not our custom to strike allegations from pleadings.  We have a statutory obligation to make findings of fact and conclusions of law on the allegations of an agency’s complaint that is brought before us alleging cause to discipline a professional license.  Section 621.110.  Therefore, we decline to strike paragraphs from the second amended complaint, even if there is no basis for them.  We deny the motion to strike.  However, we have made factual findings on the basis of the evidence in the record and have explained in these conclusions of law the basis for our findings.  The Board has not substantiated its allegations.[1]

    C.  Controlled Substance Prescriptions

    ¶ 56: 

    Dr. Paskon writes an excessive amount of controlled substance prescriptions for, but not limited to, the following drugs:  Hydrocodone, Demerol, Meperidine, Darvocet, Tylenol with codeine, Valium, Xanax, Oxycontin, Lorazepam, and Methylphenidate.  Dr. Paskon consistently writes up to three controlled substances on one prescription.

     

     

     

    This is the second paragraph in Count III.  The first paragraph of Count III incorporates by reference the general allegations of paragraphs 1-4.  Paragraph 56 is thus not prefaced with any allegation that Paskon was the treating physician for N.M.  However, N.M. is the only patient referenced in Count III.  The first reference to N.M. appears in paragraph 62.  The parties seem to have no dispute that Count III is intended to apply only to N.M., and we so construe it even though the sweeping allegation of paragraph 56 could be construed to refer to all patients at issue and not all of the medications listed were prescribed to N.M.

    The second amended complaint alleges that Paskon writes an excessive amount of controlled substance prescriptions “for, but not limited to,” the list that follows.  The “but not limited to” language is not specific enough to inform Paskon of the charges against him.  Regulation 1 CSR 15-3.350(2)(A)3; Duncan, 744 S.W.2d at 539.  As for the allegation that “Paskon consistently writes up to three controlled substances on one prescription,” there is no evidence of this in the record. 

    Dr. Peterson admitted that Paskon adequately treated this patient’s chronic pain. 

    (Tr. 199.)  Dr. Peterson admitted that he did not “have a problem with him prescribing narcotic analgesics for this patient[.]”  (Tr. 199.)  Peterson stated:  “My criticisms are about the diagnosis by declaration, especially of the psychiatric difficulties.”  (Tr. 199.)  Hydrocodone, Demerol, Meperidine, Darvocet, Tylenol with codeine, and Oxycontin are all pain relievers.  Because

    Dr. Peterson agreed that it was acceptable for Paskon to prescribe narcotic pain relievers to N.M., the Board has not proven the allegations of its complaint as to prescriptions for these medications to N.M.    

    The prescriptions of psychotropics to N.M. remain at issue.  Therefore, we must consider whether Paskon wrote “an excessive amount of controlled substance prescriptions for” Valium, Xanax, and Lorazepam (which is the same as Ativan).  In spite of the Board’s allegations, it has

     

     

    given us no standard for determining whether the amount of a prescription is “excessive.”  We examine the manufacturer’s recommended daily dosages because that is the only evidence that we have in the record.    

    Paskon did not prescribe an excessive amount of Xanax.  His prescriptions of Xanax began below the maximum dosage, and Paskon gradually decreased and eventually discontinued prescribing Xanax to N.M. 

    Paskon prescribed Valium on the initial visit because it was what she was already taking.  He also prescribed it on occasion toward the end of his treatment of N.M.  The amount was below the maximum recommended dosage. 

    Paskon prescribed Ativan early in his treatment of N.M.  The manufacturer’s recommended daily maximum dosage is 10 mg.  Paskon first prescribed 1 mg. tablets and then increased to 2 mg. tablets.  His prescription for, at the most, 8 mg. per day, was not excessive. 

    ¶ 68: 

    Dr. Paskon was incompetent and negligent in the above-described actions, including failing to properly document in the examination records of his patients, the medical needs for prescribing large amounts of the above-described medications and in prescribing controlled substances to patients who are, or may be, reselling the drugs.

     

    ¶ 69:

     

    Dr. Paskon’s conduct in dispensing, prescribing, or administering any drug, controlled substance or other treatment without sufficient examination fell below the standard of care required for physicians and was or may have been harmful or dangerous to the mental or physical health of those patients and the public to whom the narcotics were sold. 

     

    In written argument, the Board asserts that Paskon diagnosed anxiety on N.M.’s first visit on October 19, 1998, based upon information obtained by Paskon’s office medical assistant and a standard office questionnaire that N.M. completed herself.  N.M. complained of anxiety and

     

     

    reported that she was already taking Valium.  Although his assistant noted the symptoms that N.M. reported, Paskon personally examined N.M. and also made notes in her chart himself.  

    Dr. Huss testified that it is very easy for a general practitioner to tell that a patient is depressed or anxious and that these are simple diagnoses.  Paskon testified that the Valium was also an adjunct therapy to control the muscle spasms.  Dr. Peterson did not offer any criticism specifically of Paskon’s diagnosis of anxiety for N.M.  We find no cause to discipline for insufficient examination for anxiety before prescribing anxiolytics.

    The Board’s written argument also asserts that Paskon diagnosed lumbar disc syndrome without a record or copy of an MRI or other scan.  The Board cites an exhibit that is not even part of the record in asserting that Paskon assumed that N.M. already had an MRI, that he did not obtain records from St. Louis University Hospital regarding her lumbar pain, and that he was satisfied by her word that St. Louis University Hospital did not recommend further treatment for her chronic back pain.  (Pet’r Brief at 6.)  We can make findings of fact only based on the evidence in the record. 

    Paskon argues that the Board’s assertion that he diagnosed lumbar disc syndrome without an MRI is not set forth in the Board’s second amended complaint.  We think this assertion is encompassed within the Board’s allegations that Paskon prescribed without sufficient examination and failed to document the medical need for the prescriptions in the examination records of his patients.  The complaint need not set forth specific acts, but only a course of conduct.  Regulation 1 CSR 15-3.350(2)(A)3; Duncan, 744 S.W.2d at 539.  Paskon’s records show that he conducted an examination of this patient, including a straight-leg raising test, to arrive at a diagnosis of lumbar disc syndrome and lumbar back pain.  We agree with Paskon’s assertion that N.M. exhibited classic symptoms of patients with lumbar disc syndrome, which is

     

     

     

    a diagnosis that any well-trained physician could make without an MRI.  Dr. Peterson did not express any disagreement with the diagnosis of lumbar disc syndrome. 

    Dr. Peterson did complain of a diagnosis of cervical disc problems and left cervical radiculopathy without sufficient diagnostic rationale.  N.M. had complaints of tingling in her hand and pain in her hand, wrist or shoulder, not long after being in a motor vehicle accident.  Paskon requested an MRI to confirm his diagnosis.  The record does not show that N.M. ever had the MRI.  However, she had no more complaints of the pain or tingling in her hand or shoulder after March 23, 2000.  Paskon had a sufficient rationale when he made the diagnosis on March 23, 2000, as N.M. had made this complaint on March 17, 20, and 23, 2000.  Dr. Huss testified that Paskon conducted sufficient examinations before prescribing medications.  (Tr. 1450.)

    Dr. Peterson complained that Paskon added diagnoses of premenopausal syndrome and depression on October 27, 1998, without any narrative.  In written argument, the Board argues that Paskon made a diagnosis of depression without rationale because he only added “depression” to N.M.’s diagnosis.  The second amended complaint does not address any prescriptions of medication for these conditions.  Paragraph 69 alleges that Paskon prescribed or administered drugs or treatments without sufficient examination.  The complaint must allege the course of conduct and need not list specific acts.  Regulation 1 CSR 15-3.350(2)(A)3; Duncan, 744 S.W.2d at 539.  Paskon’s examination and notes for these conditions are documented in his records.  Paskon documented his examination of N.M. for these conditions.  As Dr. Huss testified, a general practitioner may observe the patient and easily come to a diagnosis such as anxiety.  (Tr. 1467, 1531-32.)  Dr. Huss testified that Paskon conducted sufficient examinations before prescribing medications.  (Tr. 1450.)  Paskon conducted a sufficient examination for his diagnosis for these conditions.   

     

     

    No medications for bipolar disorder are specifically listed in the Board’s second amended complaint.  The second amended complaint generally alleges that Paskon prescribed drugs or controlled substances without sufficient examination.  Once again, the complaint need not set forth specific acts, but must allege the course of conduct.  Regulation 1 CSR 15-3.350(2)(A)3; Duncan, 744 S.W.2d at 539.  Dr. Peterson complained that “Dr. Paskon relied on the patients to tell him if, for example, they had bipolar disorder or not.”  (Tr. 1558.)  “There’s just a declarative diagnosis such as a single word like bipolar disorder.”  (Tr. 1567) (this is in the context of recordkeeping discussion).  Dr. Huss testified that any general practitioner could readily diagnose and treat a condition such as depression or anxiety, and prescribe medication for these conditions, but that more serious conditions may require referral to a psychiatrist.  The diagnosis of bipolar disorder is consistent with what N.M. reported to Dr. Galioto.  In fact, she reported to Dr. Galioto that she was on disability for the mental illness of bipolar disorder.  According to

    Dr. Peterson’s interpretation of Dr. Galioto’s records (Tr. 202), Dr. Galioto had not “ruled out” bipolar disorder.  There is nothing in the record to indicate that N.M. did not, in fact, suffer from bipolar disorder.  N.M.’s reports to Paskon, as documented in his records, that Dr. Jimenez was prescribing medications such as Depakote and Lithium, is consistent with the diagnosis.  The Board has not alleged any deficiencies in documentation as to medications for bipolar disorder.  The second amended complaint alleges failure to document the medical needs for prescribing large amounts “of the above-described medications.”  The medications for bipolar disorder are not among those “above-described” in the second amended complaint.  As to bipolar disorder, this leaves open the allegation that Paskon prescribed any drug “without sufficient examination.”  Dr. Huss testified that Paskon conducted sufficient examinations before prescribing medications.  (Tr. 1450.)  We believe that the evidence does not show that Paskon failed to conduct a sufficient examination before prescribing medications for bipolar disorder.

     

     

    Dr. Peterson also criticized that words such as “posttraumatic stress disorder” stood on their own, generally without any independent assessment even over a series of appointments by Paskon.  (Tr. 1573.)  The basis for Paskon’s diagnosis of anxiety and post-traumatic stress disorder is well documented in Paskon’s records.  N.M. suffered two motor vehicle accidents during the time that Paskon treated her.  The first created a wound to her breast, which exacerbated her anxiety.  She had a fear of getting out and of being in a car again.  The second exacerbated a pre-existing lumbar disc condition.  Dr. Huss testified that Paskon conducted sufficient examinations before prescribing medications.  (Tr. 1450.)  He also testified:  “I thought his records were very good, well above the average of practitioners that I see.”  (Tr. 1451.) 

    The same is true of insomnia.  Dr. Peterson complained that the diagnosis of insomnia was added by declaration, without sufficient diagnostic assessment.  (Tr. 123-24.)  We are unsure what assessment a doctor would need to have for simple insomnia, other than the patient’s complaint.  Once again, we give greater weight to the testimony of Dr. Huss, who examined the record and found nothing wrong with Paskon’s prescriptions.  Because N.M.’s ongoing complaints of insomnia appear throughout Paskon’s records, and even in Dr. Galioto’s, Paskon made a sufficient diagnostic assessment for insomnia. 

    In written argument, the Board asserts that Paskon failed to document a case for the Intractable Pain Act.[2]  Peterson testified that Paskon’s patient records for N.M. did not

     

     

     

    document a case for the Intractable Pain Act.  (Tr. 124.)  However, the second amended complaint does not specifically allege that Paskon failed to adequately document a basis for the Intractable Pain Act.  It only alleges a failure to document the medical need for prescribing medications.  Dr. Huss testified that patients J.R., J.W., N.M., J.L., and S.K. all suffered from intractable pain, that Paskon diagnosed and documented the conditions causing the pain, and that he documented his treatment of these patients.  (Tr. 1450.)  Paskon adequately documented the medical need for the medications prescribed to N.M. 

    ¶ 63: 

    N.M. is or has been a patient of Dr. Paskon’s and has received Soma, Ocycontin [sic] and Precocet [sic] from Dr. Paskon.

     

    Dr. Peterson testified that he had no criticism of Paskon’s prescription of narcotic analgesics to N.M.  Oxycontin and Percocet are narcotics.  Soma is not a narcotic, and Dr. Peterson did not mention it.  Paskon only prescribed Soma to N.M. on October 19, 1998.  He prescribed 120 tablets, to be taken four times per day.  Four times per day is the manufacturer’s recommended dose.  This prescription was not excessive or a “large amount.”  Paskon prescribed the Soma after examining N.M. for lumbar pain and documenting in his records the medical need for the drug. 

    In summary, we find no merit to the Board’s assertions that Paskon failed to properly document the medical need for prescribing the medications named in Count III, or that he prescribed the drugs without sufficient examination. 

    D.  Allegation of “Reselling” of Drugs

    Paragraph 68 also asserts that Paskon was incompetent and negligent in prescribing controlled substances to patients “who are, or may be, reselling the drugs.”  We have already addressed a similar allegation that the Board made in paragraph 61.  The evidence does not show

     

     

    that Paskon’s patients were reselling the drugs.  Even if they were, Paskon would not be incompetent or negligent in prescribing to them unless he knew or should have known of the diversion.  We have already discussed Paskon’s own investigation in reviewing patient records and inquiring as to whether they were selling or abusing drugs.  The Board’s assertion is unsubstantiated.  

    E.  Conclusion as to Count III

    ¶ 67:

    Dr. Paskon’s above-described actions demonstrate misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of his duties as a physician.

     

    ¶ 70: 

    Dr. Paskon is guilty of violating the applicable standard of care, incompetency, negligence, repeated negligence, and gross negligence in the performance of his duties as a physician.

     

    We have found the allegations of Count III unsubstantiated.  We find no cause to discipline under Count III for misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct, incompetency, gross negligence, repeated negligence, or conduct that is or may be harmful or dangerous to the patient or the public. 

    Count IV:  J.W.

    The only issue that the Board has briefed as to Count IV is whether Paskon prescribed Oxycontin in excess.  Paskon argues that the Board has abandoned the other issues raised in Count IV by failing to brief them.  Briefing before this Commission is not required by any regulation or statute and is completely at the option of the parties.  Therefore, the Board’s failure to brief any issue does not result in abandonment of the issue.  This Commission is required to

     

     

     

    make findings of fact and conclusions of law to determine whether there is cause to discipline on the matters alleged in the Board’s complaint.  Section 621.110. 

    A.  Allegations of the Board’s Complaint as to J.W.

                ¶ 86:

    Dr. Paskon issued [sic] these medications for an alleged left shoulder rotator cuff injury suffered by patient J.W.

     

    ¶ 87: 

     

    The left shoulder rotator cuff injury was not substantiated by clinical and ancillary tests performed, nor by subspecialty referrals contained in Dr. Paskon’s records. 

     

    There is nothing in the record to show that a left shoulder injury did not actually occur on J.W.’s job or that J.W. was faking an injury in order to get medication.  It is true that the MRI and arthrogram showed that there was no evidence of left rotator cuff tear.  However, even

    Dr. Hulsey, the workers compensation doctor supporting the employer, treated J.W. for left rotator cuff strain and impingement.  The radiographic findings showed pre-existing arthritis in the shoulder, which is a painful condition.  Paskon’s diagnosis was consistent with Hulsey’s.  All treating physicians – Berkin, Hulsey, VanNess and Paskon – diagnosed at least a left shoulder rotator cuff strain and impingement. 

    ¶ 75:

    Dr. Paskon’s providing high doses of Oxycontin, other Hydrocodone medicines, and Valium is excessive compared to Dr. VanNess’ assessment.  Dr. VanNess is an orthopedic surgeon.  Dr. VanNess’ approach was supported more so by the Worker’s Comp [sic] presentation with shoulder x-rays, MRI, CT, etc., than Dr. Paskon’s which was seen to rely more on clinical reports of his Physician’s Assistant and nurses.

     

    We disagree that Dr. VanNess’ approach was more supported by objective findings.  Paskon’s file contains the reports of Berkin, Hulsey, and VanNess, including the X ray, MRI, and

     

     

    arthrogram results.  As we have stated, Paskon’s diagnosis of left shoulder rotator cuff strain was consistent with that of other doctors.  Even though Paskon’s assistants and nurse practitioners made exam notes in the files, Paskon testified that he verified all physical examinations himself, and there is nothing to show that he did not. 

    The fact that Dr. VanNess used a different treatment than Paskon does not show that Paskon’s approach was “excessive.”  J.W. was already on pain medication when he went to Paskon.  Dr. Huss testified that Paskon’s treatment of J.W. was appropriate.  (Tr. 1451-53.)

    As to the Board’s assertion that Paskon’s prescriptions for Valium are “excessive compared to Dr. VanNess’ assessment,” the Board does not show what Valium has to do with a comparison with Dr. VanNess’ assessment.  Paskon prescribed Valium to J.W. for anxiety, which was not within the scope of Dr. VanNess’ treatment as an orthopedic physician. 

    ¶ 76: 

    Dr. Paskon focused on musculoskeletal complaints which other doctors found [J.W.’s] presentation as excessive compared to the actual physical findings.  It did not appear that Dr. Paskon was careful before providing Flexeril, Fioricet, Ultram, Xanax, Darvocet N100, Vioxx, Oxycontin, Valium, etc.

     

    Dr. Huss testified that pain is subjective, that the patient’s complaint as to the degree of pain is “the gold standard,” and that one patient may experience more pain than another with the same condition.  (Tr. 1383.)  We would expect Paskon, as the treating family physician, to consider the patient’s complaints.  We do not agree that Paskon focused excessively on patient complaints. 

    As to the medications prescribed, the term “etc.” is too vague to give Paskon notice of the charges against him.  Regulation 1 CSR 15-3.350(2)(A)3; Duncan, 744 S.W.2d at 539.  We consider only the medications specifically listed in the Board’s second amended complaint.  Similarly, the phraseology that “It did not appear that Paskon was careful” is nonsensical and

     

     

     

    unclear.  We take the Board’s allegation as a charge that Paskon violated the standard of care; whether it appeared that he was careful is totally irrelevant. 

    Paskon never prescribed Flexeril, Ultram, Darvocet, or Vioxx to J.W.  Those were medications that J.W. reported were previously prescribed by other physicians.  Xanax was also prescribed by a previous physician.  The Board narrowed the scope of its second amended complaint as to J.W. to the periods up to June 30, 2002.  There is no evidence that Paskon prescribed Xanax to J.W. during the period that remains at issue in the Board’s second amended complaint. 

    This leaves Fioricet, Oxycontin, and Valium.  Dr. Huss testified that Paskon did not violate the standard of care in prescribing such medications to his patients.  J.W. had legitimate medical conditions that warranted pain relief and anxiolytic medication.  He was already on such medications before he saw Paskon.  Even Dr. Peterson admitted that Paskon prescribed these medications to cure an ailment or physical infirmity or disease.  (Tr. 178.)  In reference to J.W., Dr. Peterson admitted that “it was clear to me that once again Dr. Paskon has substantial knowledge about pain management of complicated medical patients.”  (Tr. 1611.)

                ¶ 78:

    Dr. Paskon provided high doses of Oxycontin even 80 mg dosages at a time without a discernable approach to treatment [sic] J.W.’s complaints.  There were overlapping and multiple prescriptions for Oxycontin, Roxicet, Oxycodone, and Roxicodone without adequate medical rationale, especially in view of J.W.’s lack of physical disability.  He had a mental disability according to Social Security.  Symptom magnification was an issue for J.W. (October 28, 1999; Dr. Hulsey). 

     

    Dr. Berkin determined that J.W. had a physical disability.  It is true that the Social Security Administration determined that J.W. had a mental disability.  However, the Social Security ALJ decided that this was due to anxiety associated with pain and physical limitations.  As noted in

     

     

    that decision, different legal standards govern determinations of disability for different purposes.  The Social Security ALJ explained that state determinations of disability were governed by different standards than Social Security determinations, and that great weight should be given to the opinions of physicians who had actually examined the patient.  Both Paskon and Dr. Berkin completed examinations of J.W. and determined that J.W. was physically disabled. 

                Dr. Hulsey was the only doctor (out of four in the record who examined J.W.) who reported that symptom magnification was an issue.  We give less weight to Dr. Hulsey’s judgment because he represented the employer for purposes of workers compensation.  It is true that J.W. repeatedly reported to Paskon that he was scheduled for surgery on his left shoulder and right foot when we find nothing in the medical records from other doctors indicating that a doctor would be performing those surgeries.  However, as we have already discussed, pain is subjective, and the Board has not proven that Paskon did not have an adequate medical rationale for prescribing Oxycontin. 

                Oxycontin and Roxicodone are brand names for Oxycodone.  Roxicet is the same as Percocet.[3]  Paskon prescribed an 80 mg. dose of Oxycontin on July 26, 2000.  Even Peterson admitted that the maximum dose, as recommended by the manufacturer, is much higher than what Paskon ever prescribed.  (Tr. 178.)  The dosages were always within the dosage recommended by the manufacturer.  Paskon prescribed Oxycontin for pain and Percocet at the same time for breakthrough pain.  Dr. Huss testified that Paskon’s prescriptions were acceptable, and not even Dr. Peterson had any specific criticism of prescribing Percocet at the same time as Oxycontin for breakthrough pain. 

     

     

     

                The Board argues that the sequential prescriptions of Oxycontin overlapped each other.  The Board more specifically argues the overlapping Oxycontin for April 24, 2000, through

    July 10, 2000, in paragraph 88: 

    Between April 24, 2000 and July 10, 2000 (77 days) Dr. Paskon prescribed 270 Oxycontin 20mg tablets and 90 Oxycontin 40mg tablets to patient JW.  The Oxycontin was increased in strength to 40mg on the last refill.  This averaged to approximately 4.5 tablets per day. 

     

    Paskon admitted this allegation in his answer.  As a factual matter, this needs some clarification.  It is correct that Paskon prescribed 270 20-mg. tablets from April 24 through July 10.  It is also correct that he prescribed 90 40-mg. tablets “between” April 24 and July 10.  He also wrote a new prescription for 90 Oxycontin 40 mg. tablets on July 10.  Paragraph 78 asserts that the Oxycontin prescriptions were “overlapping” and “without adequate medical rationale.” 

    On April 24, Paskon prescribed 90 Oxycontin 20 mg. every eight hours.  This was a 30-day supply.  On Friday, May 19 – 25 days later – Paskon prescribed 90 Oxycontin 20 mg. every eight hours.  This was a 30-day supply.  At that point, J.W. still had a five-day supply left from the previous prescription.

                On June 2 – 14 days later – J.W. reported that he had doubled his medication due to his extreme pain and ran out from the previous visit.  However, even if J.W. doubled the dosage, he still would have had 21 pills left (20 mg.) from the two prescriptions.[4]  Paskon prescribed 90 Oxycontin 40 mg. every eight hours.  This was a 30-day supply.

                On June 14 – 12 days later – J.W. complained that the 40-mg. dose was too strong.  At that point, he still had an 18-day supply of 40 mg. tablets left.  He also had 21 20-mg. pills from

     

     

     

    previous visits, which at three times per day is a seven-day supply.  Paskon prescribed 90 Oxycontin 20 mg. every eight hours.

                On June 26 – 12 days later – J.W. reported that he was again doubling the dose to 40 mg. due to his extreme pain.  If he were doubling the dose since the previous prescription, he would have consumed 12 x 6 = 72 20-mg. tablets, leaving 18 left from that prescription.  He also would have had 21 20-mg. pills left from previous prescriptions, a total of 39 20-mg. pills left.  He also had an 18-day supply of 40 mg. tablets.  Paskon did not write a new prescription for Oxycontin on June 26,[5] but instructed J.W. to increase the dosage to 80 mg. 

                On July 10 – 14 days after the previous visit – J.W. again visited Paskon.  If J.W. had doubled his dosage of 40-mg. pills to 80 mg., as Paskon instructed, this would have run out after nine days.  If J.W. had also used the remaining 20-mg. pills at an 80-mg. dose, he would have consumed 4 x 3 = 12 pills per day, and the 39 20-mg. pills would also have been exhausted.  Therefore, J.W. would have consumed all of the Oxycontin that he received up to July 10.  Even though some prescriptions overlapped, there was not an excess as of July 10.  On July 10, Paskon prescribed 90 Oxycontin 40 mg. every eight hours.  This was a 30-day supply. 

    On July 21 – 11 days later – J.W. visited Paskon.  At that point he had a 19-day supply left of 40-mg. Oxycontin.  Paskon prescribed a 30-day supply of Oxycontin, but reduced the dosage to 20 mg. and instructed J.W. to bring in his medications on the next visit. 

                On July 26 – 5 days later – J.W. reported that the 20-mg. dose was not helping and that he wanted 80 mg. instead.  J.W. still had a 19-day supply left of 40-mg. Oxycontin from the

    July 10 visit and a 25-day supply (75 pills) of 20-mg. Oxycontin from the July 21 visit.  If J.W. had increased the dosage to 80 mg. with the tablets that he had, he would have had a supply for

     

     

     

    6.25 days of 20-mg. tablets (75 pills/12 pills per day) and for 9.5 days of 40-mg. tablets.  Paskon prescribed 90 Oxycontin 80 mg. every eight hours.  This was a 30-day supply.  This prescription was not filled, but there is no indication in the record that Paskon had any knowledge that this prescription was not filled. 

                On August 8 – 13 days later – J.W. again visited Paskon.  Paskon’s records state that J.W. took the 80-mg. tablets of Oxycontin at night.  At this point, J.W. would have had a 17-day supply of 80-mg. tablets left.  He also still had a 19-day supply of 40-mg. pills and a 25-day supply of 20-mg. pills from the previous visits.  Paskon prescribed 60 Oxycontin 40 mg. every eight hours.  This was a 20-day supply. 

                J.W. visited Paskon again on August 21, which was 13 days later.  At that time, he would have had seven days of 40-mg. pills left from his August 8 prescription.  J.W. also would have had a 17-day supply of 80-mg. tablets, a 19-day supply of 40-mg. pills, and a 25-day supply of 20-mg. pills left from the previous visits.  J.W. reported having nausea, upset stomach, and nervousness as a reaction to the Oxycontin.  Paskon did not want to stop giving the medication because the patient could go into withdrawal.  Paskon prescribed 60 Oxycontin 20 mg. every eight hours. 

                J.W.’s next visit, on September 6, was 16 days later.  He would have had a four-day supply left of 20-mg. tablets from his last visit, plus a 17-day supply of 80-mg. tablets, 78 40-mg. pills ([17 days + 9 days] times 3 pills per day), and a 25-day supply of 20-mg. pills left from the previous visits.  Paskon prescribed 60 Oxycontin 40 mg. every 12 hours.  This was a 30-day supply.  In written argument, Paskon asserts that the dosage was increased to 40 mg. because the 20-mg. dose was ineffective.  This is an inference and is not directly stated in Paskon’s records.  Paskon’s records do not show what J.W.’s pain level was, with medications, on that date. 

     

     

     

                J.W. next visited Paskon on Tuesday, October 3, which was 27 days after the previous visit.  He had six Oxycontin 40 mg. left from his previous visit, plus 78 that were remaining from prior visits, totaling 84 40-mg. pills.  J.W. also had a 17-day supply of 80-mg. tablets and a 29-day supply of 20-mg. pills left from the previous visits.  Paskon prescribed 60 Oxycontin 40 mg. every 12 hours.  This was a 30-day supply. 

                On October 10 – 7 days later – J.W. reported that his medications were stolen from his car, but Paskon issued no new prescriptions. 

                On November 3 – 24 days later – J.W. visited Paskon.  The record does not tell us which medications and how much of them were supposedly stolen.  If J.W.’s current prescription of Oxycontin 40 mg. was stolen on or about October 10, and even if J.W. used old prescriptions of Oxycontin 40 mg. for 24 days, he still would have had 36 40-mg. pills left (84 – [24 x 2] = 36).  Paskon prescribed 60 more Oxycontin 40 mg. every 12 hours.  This was a 30-day supply.  After November 3, 2000, J.W.’s office visits to Paskon were fairly regular on a monthly basis.  Therefore, there were no overlapping prescriptions after November 3, 2000.  The overlap existing on November 3 was an 18-day supply at the most, assuming that J.W. had never lost or discarded any previous prescriptions.  Considering that some amount of his medication had been stolen, and the evidence does not show exactly what this amount was, this is not a large overlap.  We have already contrasted the expert testimony between Dr. Peterson and Dr. Huss and have found Dr. Huss more reliable.  The Board has failed to establish that Paskon violated the standard of care by providing some overlap in his prescriptions to J.W.   

                ¶ 83:

    Dr. Paskon prescribed the long and short acting pain medications at eight (8) hours rather than the usual and customary twelve (12) hours to patient J.W.

     

     

     

     

    Oxycontin was the only pain medication that Paskon sometimes prescribed every eight hours.  At other times, he prescribed Oxycontin every 12 hours.  Oxycontin is a long-acting medication.  Paskon did not prescribe any short-acting medications to J.W. every eight hours or 12 hours.  Exhibit UUU indicates that Oxycontin is “usually” prescribed every 12 hours, but this does not foreclose a more frequent dosage.  Exhibit T shows that Oxycontin may be prescribed three times per day and as often as four times per day.  Dr. Huss testified that Paskon’s prescriptions were within the standard of care. 

                ¶ 84: 

    Roxicet, Oxycodone, and Roxicodone are standard release oxycodone products that are intended for breakthrough pain and a patient should not necessarily need that prescription reissued on a regular basis without sufficient and continued evaluation. 

     

    ¶ 85: 

     

    Dr. Paskon did reissue the controlled substances on a regular basis to patient J.W.

     

    Paragraph 85 is true.  However, there is no evidence to support the Board’s assertion in paragraph 84 that Oxycodone and Roxicodone are intended for breakthrough pain.  Paskon did testify that he used Percocet, which is the same as Roxicet, for breakthrough pain.  The Board presented no expert testimony that prescriptions of Roxicet should not have been reissued to J.W.  Nor is there any evidence that Paskon failed to do “sufficient and continued evaluation” on J.W.  Paskon also prescribed OxyIR (Oxycontin immediate release) for breakthrough pain.  Paskon prescribed Oxycontin for pain relief over a longer period of time.

                ¶ 89:

    Dr. Paskon prescribed these large amounts of Oxycontin and oxycodone products, as well as Valium and Paxil for an anxiety disorder, despite having knowledge that patient J.W. was, in the past, a heroin addict for at least fifteen years. 

     

     

     

    Dr. Huss testified that a patient needing pain medication should not be denied treatment merely because he had been a drug abuser in the past, and we have found that the standard of care requires that the patient be given treatment for pain even if he was a drug abuser in the past. 

                ¶ 80:

    Dr. Paskon never weaned Oxycontin or Valium from J.W., despite J.W.’s desire in August 2000 to get off the medicines.  For example in November 2000, Dr. Paskon increased the Valium prescription by 30 tablets per month without rationale. 

     

    There is no evidence that J.W. expressed any desire in August 2000 to discontinue Valium.  He did state on August 21, 2000, that he wanted to discontinue Oxycontin because it caused nausea and nervousness.  Paskon reduced the dosage, but did not discontinue the drug because he did not want J.W. to go into withdrawal.  Paskon returned to the 40-mg. dose on September 6, 2000, and there was no complaint from J.W. on that date regarding the Oxycontin.   Dr. Peterson gave no testimony supporting this allegation.  We find no obligation to discontinue a medication when the patient makes no further complaints after a reduction in the dosage.  In November 2000, Paskon noted that he would gradually wean J.W. off of Valium with a goal to discontinue Valium.  He did increase the number of Valium tablets from 90 to 120, but the dosage remained at 10 mg. every six hours prn.  At that dosage, the 120 tablets were still a 30-day supply.  On that same day, J.W. reported that his nerves were well controlled with Valium.  This presented a justification for giving him the full 30-day supply.  The fact that Paskon noted a goal to discontinue Valium was merely an indication of a future intention.  The number was again reduced to 90 at the next visit on December 1, 2000.  Paskon did reduce the dosage of Valium to 5 mg. on January 29, 2001.  J.W. began seeing Dr. Galioto, who also prescribed 120 Valium     10 mg. four times per day.  Paskon cannot be faulted for failing to discontinue a medication when another doctor also found that the medication was justified in the same dosage. 

     

     

                ¶ 77: 

    Dr. Paskon did not perform adequate psychiatric assessment before providing Elavil, likely for chronic pain.  It is noted that Dr. Paskon did nothing to intervene after J.W. did not fill the Elavil prescriptions other than to increase the dose.  That was counter intuitive, given that [J.W.] was not even filling the prescriptions.  There is no evidence in the available pharmacy profile that [J.W.] actually filled the Elavil medicine. 

     

    We cannot ascertain the meaning of the first sentence of this allegation.  The Board did not show that a psychiatric assessment is required before prescribing a medicine for chronic pain.  Although Elavil is an antidepressant, it is also used for off-label purposes, such as to aid sleeping and as an adjunct for pain management.  The Board presented no evidence that Elavil should not be used for such purposes.  No psychiatric assessment was required before prescribing the medicine.  The Board also complains that Paskon did not intervene when J.W. was not filling the prescriptions for Elavil.  The Board has presented no evidence or explanation of how Paskon would have or should have known if J.W. was not filling prescriptions.  Further, the record does not show that J.W. did not fill the prescriptions, although some of them were filled late.  In March and April 2000, Paskon prescribed Elavil.  The pharmacy filled them with Amitriptyline, a generic equivalent.[6]  The next prescriptions for Elavil were written on November 3, 2000, and filled on August 17, 2001; written on September 14, 2001, and filled on December 7, 2001; and written on January 9, 2002, and filled on April 24, 2002.  The Board does not show why there is a problem with filling prescriptions later than they were prescribed.  A doctor cannot control whether and when a patient fills a prescription.  Paskon prescribed Sinequan, a similar medicine, on May 19, 2000.  Paskon testified that he prescribed Sinequan rather than Amitriptyline because it is less sedative.  Paskon prescribed Doxepin, which he described as the same as Sinequan or

     

     

     

    Elavil, on June 2, 2000.  The pharmacy logs show that J.W. filled prescriptions for Amitriptyline on May 19, 2000, and June 15, 2000.  The Board has not established that J.W. did not fill prescriptions for Elavil.  The record does show that J.W. filled a prescription for Amitriptyline at Walgreens on July 21, 2000.  The record does not show whether there was a refill on previous prescriptions.  The Board does not allege that J.W. forged a prescription or that Paskon was aware of it if he did.   

                ¶ 79: 

    There is no indication that Dr. Paskon coordinated psychiatric care, physical therapy, or orthopedic care with the other doctors. 

     

    Paskon’s file for J.W. includes copies of reports from Galioto, VanNess, Hulsey, and Berkin.  Paskon referred J.W. to such specialists on a number of occasions, and his records for J.W. contain numerous references to the treatment by such specialists.  On direct examination, Dr. Peterson testified that Dr. Galioto’s reports were in Paskon’s file, but he did not see evidence that Paskon was coordinating his care of J.W. with Dr. Galioto’s.  (Tr. 170-71.)  We disagree, as Paskon’s records contain references to Dr. Galioto’s treatment of J.W.  Paskon referred J.W. to Dr. Galioto on February 27, 2001.  On March 26, 2001, Paskon noted that J.W. was seeing

    Dr. Galioto, and Paskon did not prescribe Valium on that date.  On June 21, 2001, Paskon noted that J.W. was seeing Dr. Galioto.  Dr. Galioto’s prescription of Valium matched the dose that Paskon had been prescribing.  Paskon did not prescribe more Valium to J.W. until August 17, 2001, when he noted that J.W. was unable to see Dr. Galioto.  We do not see how Paskon could coordinate his care of J.W. with Galioto’s any more than that. 



                    [1]Paskon also moved to strike paragraphs 100 to 102. ( Tr. 283.)  That is moot because the Board later dismissed Count VI. 

                [2]The Intractable Pain Act, § 334.106.1, provides in part: 

    Notwithstanding any other provision of law to the contrary, a physician may prescribe, administer or dispense controlled substances for a therapeutic purpose to a person diagnosed and treated by a physician for a condition resulting in intractable pain, if such diagnosis and treatment has been documented in the physician's medical records.  No physician shall be subject to disciplinary action by the board solely for prescribing, administering or dispensing controlled substances when prescribed, administered or dispensed for a therapeutic purpose for a person diagnosed and treated by a physician for a condition resulting in intractable pain, if such diagnosis and treatment has been documented in the physician's medical records.

                    [3]Official notice; PDR.  

                    [4]If J.W. had doubled the dose since the previous visit, he would have consumed six 20-mg. pills per day for 14 days = 84 pills, and would have had six pills left from the May 19 prescription.  He also had 15 pills left (a five-day supply) from the April 24 prescription). 

                    [5]Harkelroad’s graph assumes that there was a prescription on June 26.  Paskon’s records show that the Oxycontin should be increased to 80 mg., but Exhibits EEE and VVV do not show a new prescription on that date, and we find none in Exhibit 12, the pharmacy profile for J.W. 

                    [6]Paskon testified that he allowed the pharmacies to substitute generics for his prescriptions.  

    • Moderator
    • 1957 posts
    July 18, 2015 8:21:32 PM PDT

    During the Board’s rebuttal evidence, after hearing Paskon’s testimony, Dr. Peterson testified: 

    And this patient Dr. Paskon used clinicians as consultants such as Dr. VanNess, Barnes Jewish Hospital, Dr. Galioto, Dr. Manard,

     

     

     

    Dr. Hulsey, and I believe in my initial assessment I was not quite as aware of his coordination with these patients about the pain management program though I think -- not I think -- once I reviewed his testimony, it was clear to me that once again Dr. Paskon has substantial knowledge about pain management of complicated medical patients[.] 

     

    (Tr. 1611.)  Though it is not entirely clear what Dr. Peterson meant by this statement, this appears to be an admission that Paskon coordinated his care of J.W. with that of other doctors. 

    Paskon’s records for J.W. contain a letter from the service liason atSt.Anthony’s behavioral health dated February 25, 2002, stating that J.W. had been treated from February 18 through February 23, 2002, but there is no mention of this in Paskon’s office notes for J.W.  However, Dr. Peterson’s testimony does not address this. 

    Dr. Peterson’s testimony does not show the extent of Paskon’s duty, if any, to coordinate his care of J.W. with that of other doctors, or state that Paskon violated the standard of care in regard to such coordination.   

                Dr. Peterson testified that Paskon’s records for J.W. did not substantiate a case for the Intractable Pain Act.  (Tr. 122.)  However, Count IV does not allege any deficiencies of documentation or that Paskon failed to substantiate a basis for the Intractable Pain Act.

    B.  Bases for Discipline for Treatment of J.W.

    ¶ 90: 

    Dr. Paskon’s above-described actions demonstrate misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of his duties as a physician.

     

    The Board has not alleged or proven any false statements by Paskon; thus, there is no fraud or misrepresentation.  Similarly, we find nothing that reflects a lack of integrity or trustworthiness; thus, there is no dishonesty.  We find no intentional wrongdoing, thus no misconduct. 

     

     

     

                On cross examination, Dr. Peterson admitted that Paskon prescribed these medications to J.W. in the course of his professional practice to cure an ailment, physical infirmity or disease, and that Paskon believed he prescribed these medications for medically accepted therapeutic purposes.  (Tr. 178.)  We find no cause to discipline under (4) for unethical or unprofessional conduct. 

    ¶ 91: 

    Dr. Paskon’s conduct in prescribing large amounts of both short acting and long acting controlled substances at the same time and in the long term, without sufficient examination and monitoring, was or may have been harmful or dangerous to the mental or physical health of patient J.W.

     

    It is not clear what the Board means by “large amounts” or why this would violate the standard of care.  We have already addressed the overlapping prescriptions of Oxycontin.  Paskon did not generally prescribe high dosages of medications.  Paskon testified that he prescribed short-acting medications for breakthrough pain when the longer-acting medications were not yet working.  Dr. Huss testified that Paskon’s prescription practice was proper.  The Board presented no expert evidence to show that Paskon should not have prescribed long-acting and short-acting medications at the same time.  As for the “long term” of the prescriptions, the evidence overwhelmingly establishes that long-term use of controlled substances may be legitimate, and the Board has not shown that it was not in this case.  Paskon’s examination and monitoring of his patients was thorough.   

                ¶ 93: 

    Dr. Paskon has violated the applicable standard of care, incompetency, negligence, repeated negligence, and gross negligence in the performance of his duties as a physician. 

     

    We note that the structure of this sentence does not make sense.  Moving on to the substance of the allegation, there is no provision under the disciplinary statutes for mere negligence.  The

     

     

    statutes allow discipline for repeated negligence or gross negligence.  We have found that Paskon did not violate the standard of care.  Therefore, we find no cause to discipline for repeated negligence under (5). 

                The Board has not established that Paskon has a general lack of professional ability or a general lack of disposition to use his professional ability.  Nor did Paskon’s conduct constitute gross negligence.  Paskon was not indifferent to his professional duty.  He attempted to fulfill his duty by prescribing medication for a patient with a number of painful conditions.  We find no cause to discipline for incompetence or gross negligence. 

    Count VII:  S.K.

    A.  Conduct Asserted in the Second Amended Complaint

                Paskon treated S.K. for numerous chronic conditions as well as temporary illnesses, but these are not all at issue in the Board’s complaint.  We address only the treatment that is addressed in the Board’s complaint, but must keep in mind that Paskon also provided treatment for other conditions simultaneously as her family doctor.  After Paskon presented his case, Peterson withdrew his criticism of the pain management for S.K.  (Tr. at 1593-94.­)  Therefore, the Board has not established the allegations of its second amended complaint asserting that the pain management for S.K. was improper. 

                Paskon admitted paragraph 107, which does not assert charges against him, but contains important background information: 

    Patient S.K. proved to be a very difficult patient to manage.  She had numerous difficulties, including diabetes, back pain, allergic problems, obesity, high blood pressure, dermatitis, etc.  She complicated her care by non-compliance with treatments. 

     

    ¶ 106: 

     

    For patient S.K., there was no real Mental Status Examination, rationale for the Ambien, or rationale for the high dose of Xanax. 

     

     

     

    DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 651 (30th ed. 2003) defines the term “mental status examination” as: 

    a component of the medical examination comprising the systematic evaluation of the mental status of the patient, including the appearance, psychomotor behavior, speech, thinking and perception, emotional state including affect and mood, insight and judgment, intelligence, sensorium, attention and concentration, and memory. 

     

    Paskon understood the term to include a determination of whether the patient was alert and oriented, but that the scope of the mental status examination for a general practitioner would depend on the patient’s complaints.  (Tr. 316.)  Paskon understood it as an examination to determine a person’s mental competence, such as orientation to time and place, attention, recall and language.  (Tr. 347-48.)  Paskon also testified that when he saw a patient, he performed a mental status examination by definition because he always noted whether the patient was alert or lethargic.  (Tr. 1275-76.)  Out of the three doctors who testified, his understanding was actually the most consistent with the dictionary definition. 

                The second amended complaint uses the term “mental status examination” instead of “psychiatric examination.”  Dr. Huss commented: 

    Dr. Peterson’s comments regarding prescribing without rationale or sufficient exam were from the point of view of a psychiatrist, not a family practitioner.  I made a note that he simply cannot understand or discern the rationale but does not offer proof that there is none and what he regarded as high doses of Lorcet and Xanax were actually very reasonable doses. 

     

    (Tr. 1429.)  Dr. Huss further testified that a mental status examination is different from a psychiatric examination, and that the only formal, structured type of mental status examination that he would do in his practice would be a Folstein Mini Mental Status Exam, which would be for the purpose of diagnosing or evaluating a patient for ongoing therapy for a disease such as Alzheimer’s.  (Tr. 1482.)

     

     

    Dr. Peterson was questioned as follows:   

                Q:  You mentioned “mental status examination.”  Is  that a term of art? 

     

                A:  No.  Actually, I'm sorry, it is a term of art in  the sense that a psychiatric mental status examination is effectively the equivalent of the internist’s general physical exam as they are in front of the doctor.  They can be very brief.  They can also be very long if the matter requires it.  But it’s a specific subset of general medical assessment of a patient. 

     

    (Tr. at 48.)  Dr. Peterson further testified that a mental status examination is: 

     

    a quick assessment as to alertness; intelligence level; ability to concentrate; cognitive level, such as their capacity to reason.  That’s a quick measure of their level of depression or problems with formal thought disorders, such as schizophrenia or hallucinations or mania.  And then a quick cognitive assessment helps to determine if the person has a specific learning disability or maybe if they have also a delirium that’s impairing their functioning. 

     

    (Tr. 50.)  Dr. Peterson suggested at one point that a general practitioner cannot even conduct a sufficient examination to prescribe psychotropic medications:

    It’s generally accepted that general practitioners are not psychiatrists and do not necessarily perform the depth of psychiatric interviews necessary for psychotropic medications. 

     

    (Tr. 49.)  However, he also admitted that general practitioners, such as Paskon, can prescribe psychotropics: 

                Q:  Can a general practitioner treat emotional disorders like this? 

     

                A:  Yes.  Actually, general practitioners prescribe about 60 percent of them, far more than psychiatrists. 

     

    (Tr. at 48.)  Dr. Peterson also testified as to insufficiency of Paskon’s records to show an adequate mental status examination.  However, deficiencies as to record keeping are not alleged in Count IX of the Board’s complaint. 

     

     

    Dr. Huss found the Board’s use of the term “mental status examination” confusing.  He testified as follows:

                Q:  . . .  Generally Dr. Peterson criticized Dr. Paskon for prescribing these medications without performing what he described as a mental status examination.  Do you think that's a fair criticism?

     

                A:  I'm not really sure what he refers to as a mental status examination.  Generally, no, but I don’t know what he’s really referring to in terms of a mental status examination. 

     

                Q:  Before you prescribe any of those types of medications or medications for those conditions, what type of mental status examination if any do you perform? 

     

                A:  I would take a history, of course, of the problem.  If it's a new problem, particularly a new problem with depression, for instance, we'll get a history and see if the symptoms of depression, you know, make me believe that this is a problem with depression.  But in terms of an exam, then to corroborate that I might note whether the patient was depressed appearing.  You can -- an experienced practitioner can pick that up pretty quickly if they’re depressed or anxious. 

     

                But in terms of a formal mental status exam, the only time I would ever do that would be in the context of evaluating a demented patient.  There’s a specific exam that we go through called Folstein Mini Mental Status Exam that's a series of thirty point questionnaire that you evaluate patients that are demented with.  In a family practice or internal medicine practice, geriatric medicine practice, that's the only thing I would refer to as a mental status exam other than noting the patient’s mood and their affect. 

     

    (Tr. 1405-06.)  Considering the expert testimony and the dictionary definition, Paskon had the clearest understanding of any of these doctors as to what was required for a mental status examination. The Board alleges failure to conduct a mental status examination and not failure to conduct a psychiatric examination.  Paskon was thorough in conducting a mental status examination.  Almost every record of every patient visit, and not just the initial visit, contains a

     

     

     

    note from Paskon noting:  “PE  Alert.”  This note meant that Paskon conducted an examination of the patient and found the patient alert.  Paskon conducted mental status examinations of S.K. 

    The Board alleges there was no rationale for the Ambien, a sleeping pill.  S.K. complained of insomnia on January 15, 1999, and Paskon prescribed Ambien.  Paskon had sufficient justification for prescribing Ambien. 

                The Board next complains that Paskon had no “rationale for the high dose of Xanax.”  The dosage of Xanax that Paskon prescribed to S.K. was not high; it was not even close to the maximum.  Further, Paskon had adequate justification for prescribing Xanax.  S.K. experienced extreme stress due to her family life and was at risk of harming herself.  The medication helped to manage her stress.  As Dr. Huss testified, a general practitioner can easily diagnose anxiety (Tr. 1467), and a general practitioner need not use the DSM criteria to do so in their daily practice.  (Tr. 1530.)  Paskon had a sufficient rationale for prescribing Xanax to S.K. 

                ¶ 108: 

    Early in treatment, Dr. Paskon provided maximum dose of Soma without rationale. 

     

    Soma is a pain medication.  Because the Board’s expert agreed that Paskon’s pain management for S.K. was proper, the Board has failed to prove this allegation.   

    ¶ 109: 

     

    In addition, she requests Lorazepam at a very high dose without any rationale (January 12, 1999).  Three days later, 40 tablets of Xanax are provided even though the patient was given 90 tablets of Ativan just three days earlier.  Then, 14 days later, Ambien is added, a hypnotic, without any rationale.  Thus, now the patient was [sic] three benzodiazepines without discernible rationale.  This similar overlapping dosage regimen is again provided in April 1999 (Ativan and Xanax).  This is not accompanied by any Mental Status examination justifying the need for two or three different benzodiazepines, overlapping prescriptions, or increases in the Xanax.  This was repeated again in August 1999 when the patient

     

     

     

     

    is given an early refill of Xanax, that is a 30-day supply in just 14 days. 

     

    Paskon had adequate justification for prescribing Lorazepam (Ativan) on January 12, 1999.  S.K. was already on anxiolytics, but did not find Buspar and Vistaril effective.  The manufacturer’s recommended daily maximum dosage for Ativan was 10 mg. per day.  Paskon prescribed 1 mg. every six hours prn.  The Ativan was not at a high dose. 

                The Board complains that Paskon added Xanax only three days later.  Paskon prescribed the Xanax because Ativan (Lorazepam) had not been effective, because Xanax is fast acting, and because he found it to be a very effective medication for anxiety and depression.  When S.K. visited Paskon on January 15, 1999, she complained of depression and suicidal thoughts.  She felt “tense all over,” complained of nervousness and insomnia, and was afraid that she was going to hurt somebody.  Paskon recommended that she enter a psychiatric hospital, but she refused.  Paskon needed to use effective medication to treat S.K.’s serious condition.  She had these problems even though Paskon had already prescribed other anxiolytics.  Paskon was justified in prescribing Xanax even though he had prescribed Lorazepam three days earlier. 

                As a factual matter, the Ambien was not added “14 days later.”  Ambien was prescribed on January 15, 1999, during the same visit as the Xanax.  As we have already stated, Paskon had sufficient justification for prescribing Ambien to S.K. 

                As a justification for prescribing Ativan on April 9, 1999, in addition to the Xanax that he had already prescribed, Paskon stated:  

                A:  She take like a maintenance of the Xanax along the day and in between they will give Ativan in between, if needed.  And this is the purpose.

     

    DIRECT EXAMINATION (Resumed) BY MR. RICHARDSON: 

     

                Q:  So at that point, was it your judgment that she would benefit from both of those medications, Doctor? 

     

     

     

                A:  Yes.  On April 9, the Ativan, I put it here.  It is six hour p.r.n.  That mean if needed.  So at this point, I give her Xanax three times a day.  Okay.  And there are two ways to do it, but she doesn’t know it.  Okay.  Either push the Xanax upward, so she doesn’t have any symptoms between.  Instead of three a day, then you take four a day.  Then, maybe, I think that will calm her down. 

     

                If not, you know, it’s another pill in her experience that work better and have it on hand. 

     

                And I have been cautious about -- you know, really careful about this lady since she have the crisis on January 15.  I don’t want her to go back.  If she have some kind -- the family problem or any crisis, you know, I don’t want to go back in the same symptom of suicidal ideation or some kind of homicidal, you know. 

     

                Q:  So you’ve provided her with the medication that if she requires it, she can take it? 

     

                A:  Yes, correct.

     

    (Tr. IV 67-68).  Xanax is a very fast-acting medication.  Therefore, it makes sense that the effect may wear off quickly.  Paskon gave the Ativan prescription prn.  We conclude that Paskon gave an adequate medical justification for the prescription of Ativan.   

                Paskon then increased the Xanax to four times per day on May 11, 1999, but the second amended complaint does not assert that there is anything wrong with increasing from three times per day to four times per day.  The Board generally alleges “high doses of Xanax,” but has not proven that this dosage of Xanax was high.  The Board makes no allegation concerning an overlapping  prescription of Xanax on June 29, 1999, and our Finding of Fact for that date show that Paskon had a sufficient justification for it.  The dosage of Xanax was not high. 

                Paskon provided an adequate justification for the overlapping dose of Xanax in August 1999.  S.K. doubled the dosage on her own initiative because she experienced increased anxiety and nervousness.  Rather than discontinuing her as a patient, which he felt would be an ethical

     

     

     

    violation, Paskon adjusted the dosage to meet her needs, but gave her only a two-week supply so that she would follow up. 

                ¶ 110:

    On September 28, 1999, an amphetamine weight loss drug is added without rationale.

     

    S.K. was 5 feet, 4 inches tall.  On September 28, 1999, her weight was 252 pounds, and Paskon prescribed Adipex.  Pharmacological therapy for weight loss is indicated when the patient is obese, the patient’s body mass index is over 30, and the patient has comorbidity such as high blood pressure, diabetes or back pain.  S.K. met these criteria.  Paskon had adequate justification for prescribing a weight loss drug. 

    ¶ 111: 

    November 3, 1999 appointment increases Xanax to 4 tablets per day over and above the Ativan and Darvocet and Adipex.  None of this is rationalized.  This kind of treatment approach is maintained, despite ineffective blood sugar control, requests to have Xanax changed for Valium and back again (December 3, 1999 and January 25, 2000).  These medicines are always added at the highest possible dose. 

     

    Paskon prescribed Xanax 1 mg. four times per day on September 21.  He also prescribed Ativan prn on September 1 and September 28.  He reduced the Xanax to .5 mg., one to two every six hours prn on October 12, 1999.  Paskon should not be faulted for trying to reduce the amount of medication, as the Board’s complaint asserts that he prescribed too much medication.  On November 3, 1999, Paskon found the reduced dosage ineffective, as he noted that S.K. was still nervous and anxious.  We disagree with the Board’s assertion that there was no rationale for the increase in Xanax on November 3, 1999, as Paskon merely returned to the dose previously prescribed. 

     

     

     

                We are unsure what the Board means by stating:  “This kind of treatment approach is maintained, despite ineffective blood sugar control, requests to have Xanax changed for Valium and back again (December 3, 1999 and January 25, 2000).”  The parties debate whether blood sugar control is at issue.  (Tr. 884-91, 1213-29.)  We took Paskon’s relevance objection with the case (Tr. 891), and we sustain the objection.  We conclude that blood sugar control is not at issue because the complaint is unclear.  The complaint asserts that the treatment approach with the Xanax is maintained “despite ineffective blood sugar control.”  The relationship between the Xanax treatment and the blood sugar control is unclear.  Therefore, we conclude that blood sugar control for S.K. is not at issue in this case. 

                The complaint is factually inaccurate in stating that S.K. requested to have the Xanax changed for Valium and back again.  On December 3, 1999, S.K. inquired as to whether she could take Valium instead of Ativan because she did not find Ativan effective.  Paskon continued to prescribe Xanax.  On January 25, she inquired as to whether she could switch back to Ativan instead of Valium.  She never requested to change Xanax for Valium. 

                The Board also asserts:  “These medicines are always added at the highest possible dose,” but its own evidence shows that not to be the case.  The manufacturer’s recommended daily maximum dosage for Xanax was 10 mg. per day.  Paskon did not prescribe more than 4 mg. per day on these visits.  This is nowhere close to the maximum.  The manufacturer’s recommended daily maximum dosage for Ativan was 10 mg. per day, and the most that Paskon prescribed on these visits was 2 mg. every six hours prn.  The manufacturer’s recommended dosage for Adipex is 37.5 mg. once daily, or 18.75 mg. one to two times daily.  Paskon prescribed 37.5 mg. once daily, but the Board has not demonstrated that this is improper.  S.K. was severely obese and had comorbidity factors; thus, Paskon’s prescription of Adipex 37.5 mg. was justified.  The manufacturer’s recommended daily maximum dosage for Valium was 60 mg. per day.  Paskon

     

     

    prescribed Valium 10 mg. to be taken every six hours prn, which was not the “highest possible dose.” 

                Paragraph 111 also asserts that there was no rationale for Paskon’s prescriptions of Lorcet, Soma, and Oxycontin, but these are pain management drugs.  The Board dropped its allegations regarding pain management for S.K.; thus, the last sentence of paragraph 111 is no longer at issue. 

    ¶ 112:

     

    Dr. Paskon made weak efforts to wean the Ativan in May 2000.  Then, in June 2000 adds Depakote and Paxil and maintains the high dose of Xanax without any rationale other than “attempt to decrease Xanax failed.”  In July, 2000, Neurontin is added without rationale. 

     

    Paskon never prescribed Ativan to S.K. after May 2000.  Therefore, the complaint’s allegation that he made “weak efforts to wean the Ativan in May 2000” is factually incorrect.  Paskon not only made an effort, he completely discontinued the Ativan after May 2000.  Paskon tried other medications to control S.K.’s symptoms. 

                Contrary to the Board’s complaint, Paskon did not add Paxil in June 2000.  He did not even prescribe Paxil in June 2000 and had not prescribed any Paxil since April 25, 2000.  On June 21 and July 21, he noted that Paxil was discontinued.   

                On June 21, 2000, Paskon noted that S.K. still experienced nervousness and depression, as well as occasional crying spells and frequent mood swings.  Paskon offered sufficient justification for prescribing Depakote.  Paskon also sufficiently explained the use of Xanax because he found it effective to control S.K.’s anxiety and other medications were not effective.  Paskon made attempts to reduce the Xanax, but found that S.K.’s anxiety symptoms could not be controlled without it.  Paskon testified that the Neurontin was an adjunct for control of neuropathic pain.  Paskon offered sufficient justification for using this medication.  Paskon did

     

     

    not prescribe any more Neurontin after July 21, 2000, and did not prescribe any more Depakote after August 17, 2000.  Paskon only used these medications temporarily when S.K.’s condition worsened. 

    B.  Bases for Discipline

                We note that the Board’s second amended complaint contains no allegation of S.K. selling or abusing drugs. The second amended complaint raises this issue regarding N.M., but the testimony does not address N.M.  We cannot find cause to discipline based on conduct not asserted in the complaint. 

                The Board asserts that Paskon is subject to discipline for incompetency, negligence, repeated negligence, gross negligence, and conduct dangerous to the health of a patient in regard to his treatment of S.K.  (Second Amended Complaint ¶ 114.)  As we have already stated, simple “negligence” is not a cause for discipline under the statutes.  We have examined each of the allegations in Count VII.  Paskon did not violate the standard of care in his treatment of S.K., nor was his conduct dangerous to S.K.  The parties agreed that S.K. was a difficult patient to manage, that she had numerous medication conditions, and that she “complicated her care by non-compliance with treatments.”  (Second Amended Complaint ¶ 107.)  Paskon was not indifferent to his professional duty.  There is no cause to discipline his license under Count VII.   

    Count VIII:  A.R.

    A.  Conduct Asserted in the Second Amended Complaint

          After Paskon presented his case, Dr. Peterson withdrew his criticism of the pain management for A.R. (Tr. 1592-93) “with the exception of lumping fibromyalgia, myofascial pain into diagnoses that are identical.”  However, this conduct is not asserted in the Board’s second amended complaint; thus, we cannot find cause to discipline on that basis.  Because the Board’s expert, Dr. Peterson, did not find anything wrong with Paskon’s pain management

     

     

    practices for A.R., the Board has failed to prove its complaint as to prescriptions of pain medications to A.R. 

                ¶ 117: 

    For patient A.R., Dr. Paskon provides two or three controlled substance medications on the same prescription blank, a violation of BNDD protocol. 

     

    The Board presented no evidence of any BNDD protocol prohibiting a doctor from  putting more than one controlled substance on a prescription blank.  We find no cause to discipline on this basis.

                ¶ 119:

    Dr. Paskon provides Depakote without following its serum level or any events of education to A.R. about the purpose of the medicine. 

     

    Dr. Huss testified that tracking the serum level was not necessary at the dosage that A.R. received.  (Tr. 1423.)  The Board’s brief asserts that Paskon prescribed Depakote without sufficient reasoning in his medical records as to what condition he was prescribing it for, and that his records did not contain information regarding the effects or side effects of Depakote.  This allegation is not in the Board’s second amended complaint, so we cannot consider it. 

                ¶ 121:

    Dr. Paskon utilizes Celexa, an antidepressant, without Mental Status Examination just for the diagnosis of “depression.”  Patient A.R. even tried to wean his Xanax himself (December 21, 1999). 

     

    We find it difficult to conclude that Paskon did not meet the standard of care as to a diagnosis of depression when Dr. Madsen conducted the same type of examination, reached the same conclusion, and also suggested antidepressant medication.  Paskon had conducted adequate mental status examinations throughout his course of treatment of A.R., and switched from Paxil to Celexa when A.R. continued to experience depression.  As to the Board’s assertion that A.R.

     

     

    was trying to wean himself off the Xanax, this is not a reflection on Paskon’s care.  A.R. had stated at the previous visit that he wanted to reduce the antidepressants, and Paskon had reduced the Depakote.  A.R. then reduced the Xanax intake on his own initiative.  Paskon then reduced the dosage instructions, but was cautious because he wanted to maintain the effect of the medications in a patient whom he found had been undertreated for years.  Paskon did not prescribe any more Xanax to A.R. after this date.  On April 13, 2000, A.R. complained that he needed the Xanax again because his nerves were bad.  Paskon did not prescribe any more Xanax, but used Serax and Buspar instead.  Paskon eventually weaned A.R. from antidepressants and anxiolytics.  We find no violation of the standard of care. 

    ¶ 122: 

    Dr. Paskon appears to overly rely on his assistants as he provides no rationale for diagnoses of fibromyalgia or Bipolar Disorder (February 22, 2000).

     

    The Board has not shown what reliance on assistants had to do with a diagnosis of fibromyalgia.  Paskon established that fibromyalgia was the same thing for which he had already been treating A.R., but simply a different name for the condition. 

                Nor has the Board shown that Paskon overly relied on his assistants for a diagnosis of bipolar disorder.  Paskon noted bipolar disorder in the medical history on September 24, 1999.  His assistant noted it in the medical history on October 25, 1999.  If anything, Paskon was relying on the patient’s recount of the medical history, rather than relying on his assistants.  The Board has not alleged that there is anything wrong with that, nor has the Board shown that this violates the standard of care.  Paskon found that bipolar disorder was in the same group of illnesses as anxiety and depression, and that the anxiety and mood swings were characteristic of that disorder. 

     

     

     

                ¶ 123: 

    Neurontin, an antiseizure medicine, is added without rationale. 

     

    Paskon prescribed Neurontin as an off-label use for A.R.’s neuropathic pain and as a replacement for the Depakote.  Paskon found it effective as an adjunct in treating A.R.’s pain.  This was a sufficient rationale for the medication. 

    ¶ 124: 

    Dr. Paskon’s additions to these medical record entries appear scattered through what may have been open portions of the page.

     

    ¶ 125:

     

    Chart shows poor documentation but there is a concerted effort to address the cervical spine abnormalities faced by patient A.R.

     

    The Board offers no evidence to support the allegations of paragraph 124.  Paskon’s records for A.R. look like those of the other patients, and we can see no evidence that Paskon tried to insert entries into open portions of the pages.  We also disagree with the assertion of paragraph 125 that the “chart shows poor documentation.”  Paskon’s records are thorough and detailed. 

                ¶ 126: 

    As above, diagnoses such as anxiety reaction, Post-traumatic Stress Disorder, Bipolar Disorder, and depression are tossed into the chart without any Mental Status Examination, psychiatric history, or definitive treatment plan. 

     

    Again, we cannot conclude that Paskon failed to meet the standard of care as to a diagnosis.  Paskon took a psychiatric history.  A.R. had been to a psychotherapist for treatment of anger and depression, and was taking Wellbutrin.  A.R. was unemployed, without his own home, and had been in two serious automobile accidents.  Paskon repeatedly conducted examinations and made notes as to A.R.’s psychiatric symptoms.  Paskon treated him for anxiety, depression, and post-

     

     

     

    traumatic stress disorder, and found that A.R.’s mood swings indicated bipolar disorder, which was a form of depression. 

    ¶ 128: 

    There are no overlapping doses of Xanax, Lorcet, Oxycontin, etc. [[1]]   However, dosages are always provided at high levels with this particular patient. 

     

    Dr. Peterson dropped his criticism of Paskon’s pain management for A.R.  Lorcet and Oxycontin are pain medications; thus, the Board has abandoned its allegations that those medications were prescribed at “high levels.”  However, the Board maintains this charge as to Xanax. The Board has not shown that the dosage of Xanax was at “high levels” or that there was any violation of the standard of care as to the dosages. 

    B.  Bases for Discipline

     

    The Board asserts that Paskon is subject to discipline for incompetency, negligence, repeated negligence, gross negligence, and conduct dangerous to the health of a patient in regard to his treatment of AR.  (Second Amended Complaint ¶ 130.)  We have found the allegations of Count VIII unsubstantiated.  There is no cause for discipline under Count VIII. 

    Count IX:  J.R.

    A.  Failure to Brief

          Paskon argues that the Board waived Count IX because it did not brief that count.  However, briefing is not mandatory before this Commission; it is at the option of the parties.  We have a statutory duty to address the allegations of the complaint and determine whether there is

     

     

     

    cause to discipline on the complaint.  Section 621.045, RSMo Supp. 2006.  Therefore, the Board has not waived Count IX by failing to brief it.[2] 



                    [1]We find no cause to discipline as to the “etc.” because it is too vague to provide notice to Paskon of the charges against him.  Regulation 1 CSR 15-3.350(2)(A)3; Duncan, 744 S.W.2d at 539.    

                    [2]In its reply brief, the Board stated that it would file supplemental proposed findings of fact and conclusions of law as to Count IX, but the Board has not done so.  

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    B.  Conduct Asserted in the Second Amended Complaint

                After Paskon presented his case, Dr. Peterson withdrew his criticism of the pain management for J.R., including his comments about the pain medicines being overlapping and not justified.  (Tr. 1591.)  Therefore, the Board has failed to prove the portions of its second amended complaint asserting that the pain management for J.R. was improper.  Dr. Peterson testified that the record was not documented for intractable pain for J.R.  (Tr. 138.)  However, the second amended complaint does not allege any inadequacy of documentation as to J.R. 

          ¶ 133: 

     

    For patient J.R., Dr. Paskon provides high dose Xanax and antidepressant without discernible Mental Status Examination for Panic Disorder and chronic anxiety. 

     

    We have already addressed the Board’s misuse of the term “mental status examination.”  Paskon provided an adequate mental status examination for J.R., as he did for the other patients.[1]   

                ¶ 134: 

    After the initial appointment, Dr. Paskon provided overlapping prescriptions of Lorcet and Xanax.  Sometimes the Lorcet alternates with Darvocet without mentioning the reason for the overlap or alternating medicines. 

     

    Dr. Peterson withdrew his criticism of Paskon’s pain management for J.R.  Lorcet and Darvocet are pain medications.  Therefore, the Board has not established any violation of the standard of care as to Paskon’s prescriptions of Lorcet and Darvocet. 

     

     

     

    On January 28, 1999, Paskon prescribed 60 Xanax 1 mg. tablets to be taken three times per day.  This was a 20-day supply.  On February 10, 1999, he prescribed 90 more Xanax 1 mg. tablets, to be taken three times per day.  This was before the previous prescription would have been used up, if taken according to his directions. 

    Dr. Peterson testified that his criticism of the overlapping Xanax prescriptions, as on February 10, 1999, was: 

    not the number of tablets.  It’s the lack of reasoning evident for increasing the number of pills available to the patient.  For example, there’s no reference to whether the Xanax has actually eased the patient’s anxiety or their panic attacks, which would be a crucial piece of information to know if the original dosing was efficacious.  That’s one major criticism.   

     

    (Tr. 68.)  The Board does not allege inadequacy of record keeping as a basis for discipline in Count IX; thus, we cannot find cause for discipline based on failure to include information in J.R.’s patient records.  Dr. Peterson went on to say that there was no mental status examination.  We have already found Paskon’s mental status examinations adequate. 

    Paskon testified that a patient could take 10 mg. of Xanax per day, or ten pills per day; thus, he could prescribe 300 per month.  Paskon stated that J.R. was close to running out of Xanax.  (Tr. 362.) 

    On June 23, 1999, Paskon prescribed 90 Xanax 1 mg. to be taken three times per day.  This was a 30-day supply.  On July 7, 1999 – two weeks later – Paskon prescribed 60 Xanax

    1 mg. to be taken three times per day.  This was only a 20-day supply. 

    On August 6, 1999, Paskon prescribed 90 Xanax 1 mg. to be taken three times per day.  This was a 30-day supply.  On August 25, 1999 – 19 days later – he prescribed another 30-day supply.  Paskon testified that he did this so that she would not run out of medication before the next visit.  (Tr. 439.) 

     

     

     

    We have already contrasted the expert testimony regarding overlapping prescriptions.  Dr. Huss, whom we found more reliable, testified that Paskon did not violate the standard of care.  Paskon offered justifications for the overlapping prescriptions on February 10 and

    August 25.  Even though the prescriptions were somewhat overlapping, the Board has not established that this violated the standard of care. 



                    [1]The Second Amended Complaint does not mention depression, although that is another diagnosis that Paskon made for J.R.  We sustained Paskon’s objection as to testimony regarding a diagnosis of depression for J.R. (Tr. 76.)  

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    ¶ 135: 

    The February 10, 1999 x-rays suggest that he is providing excessive amounts of narcotics for the orthopedic finding.  This is in view of lack of Mental Status Examination, justifying changes in the Diazepam or Paxil levels also. 

     

    As we have stated, Dr. Peterson withdrew his criticism of Paskon’s pain management of J.R.  Therefore, the Board has established no basis for discipline under the first sentence of paragraph 135.  However, we have quoted it because the second sentence is tied to it.  There are several problems with this paragraph.  The first is that the connection between the first sentence and the second sentence is unclear.  The Board states that “This is in view of . . . “  However, it is not clear how a lack of mental status examination relates to the orthopedic treatment.  Secondly, the record does not show that Paskon ever prescribed Diazepam to J.R.[1]  Perhaps the Board intended to refer to Alprazolam, which is the same as Xanax, but the Board apparently referred to the wrong drug.  Thirdly, we have found that Paskon performed adequate mental status examinations.  Finally, Paskon offered an explanation for changing the Paxil level on

    February 10, and we find his explanation adequate. 

                ¶ 136:

    Eventually, Dr. Paskon adds Soma, a substance with high likelihood for abuse, without rationale.  This is an overlapping treatment program indicative of polypharmacy (February 17,

     

     

     

     

    1999), not indicative of a physician exerting careful control over medicines. 

     

    Soma is a pain relief medication.  Because Dr. Peterson withdrew his criticism of pain management for J.R., including his comments about pain medicines being overlapping and not justified (Tr. 1591), the Board has failed to prove any cause for discipline for this conduct. 

                ¶ 137: 

    Flexeril, Xanax, Soma, and Lorcet are consistently prescribed.  Patient J.R. has evidence of some lumbar disc disease but there is no intervention other than pain medicine and Xanax.  Given that he sees this patient every 14 days, she tends to receive about the maximum doses possible. 

     

    As noted, Dr. Peterson withdrew his criticism of pain management for J.R.  Flexeril, Soma, and Lorcet are all related to pain management for J.R.’s back problems.  Therefore, the Board has failed to establish any violation of the standard of care as to those medications. 

    It is unclear what malfeasance the Board is alleging in paragraph 137.  The Board has not shown that there is anything wrong with “consistently” prescribing medications and prescribing the “maximum doses possible.”  As to the Board’s criticism that there is evidence of lumbar disease “but there is no intervention other than pain medicine and Xanax,” the Board withdrew its criticism of the pain management, and even if there is some claim remaining as to the Xanax, Paskon established that he used the Xanax as an adjunct for the pain treatment for J.R. 

    C.  Bases for Discipline

    The Board asserts that Paskon is subject to discipline for incompetency, negligence, repeated negligence, gross negligence, and conduct dangerous to the health of a patient in regard to his treatment of J.R.  (Second Amended Complaint ¶ 139.)

                We have concluded that Paskon did not violate the standard of care by prescribing Xanax in overlapping prescriptions.  Therefore, we find no cause to discipline for repeated negligence

     

     

    under § 334.100.2(5).  Further, the Board has failed to show how this conduct was or could have been harmful to J.R.  The Board has not alleged that Paskon caused harm to any patient named in its complaint.  The purpose of the licensing laws is to protect the public.  Lane v. State Comm. of Psychologists, 954 S.W.2d 23, 25 (Mo. App., E.D. 1997).  The Board has failed to show how any public protection purpose could be served by disciplining Paskon’s license.  On the contrary, Paskon has established himself as a caring physician who treated Medicaid patients with serious conditions that other doctors would not treat. 

                Similarly, the Board has not established that Paskon has a general lack of professional ability or a general lack of disposition to use his professional ability.  Paskon is not incompetent.  Nor did Paskon’s conduct rise to the level of gross negligence.  Paskon was not indifferent to his professional duty.  We find no cause to discipline for incompetence or gross negligence. 

    Count V:  Repeated Negligence

                The Board’s second amended complaint, Count V, asserts that there is cause to discipline Paskon’s license for the conduct set forth in Counts II, III, IV, VII, VIII, and IXWe have found no cause to discipline under any of the counts Therefore, we find no cause to discipline under Count V.   

    Summary

                We find no cause to discipline Paskon’s license. 

                SO ORDERED on March 27, 2007.

     

     

                                                                                  ________________________________

                                                                                  JOHN J. KOPP 

                                                                                  Commissioner



                    [1]We take notice of the fact that Diazepam is the same drug as Valium.  


    This post was edited by Brett Snodgrass at July 18, 2015 8:29:31 PM PDT