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Unprofessional conduct in prescriptions

gavel2We have all heard about, and too many have experienced, the effects of the opioid epidemic in the United States. One way to combat improper writing of prescriptions in Maryland is for the State Board of Physicians to seek sanctions against physicians for unprofessional conduct. This process was explored by a recent unreported opinion from Maryland’s intermediate appellate court in a case called Walter Kozachuk v. Maryland State Board of Physicians.
 
 
The opinion indicates that Dr. Kozachuk had been a licensed physician in Maryland since 1988, and worked as a neurology consultant providing pain management services. An investigation of the doctor began when a waitress in a bar/restaurant saw the doctor at a table with two women, writing prescriptions which he stacked on the table. She saw cash being handed to the doctor and reported this to her manager, who gave the doctor’s license plate number to the police. The police passed the information to the Drug Enforcement Administration, and DEA began an investigation which included surveillance.
 
A DEA investigator saw the doctor again enter a restaurant and give a prescription to someone, and then interviewed the doctor who admitted that he sometimes met with patients outside the office, and wrote them prescriptions for narcotic pain killers for which he charged $100. The doctor offered to give up his DEA Certificate of Registration thereby revoking his privileges to write prescriptions, and he
admitted that he had failed to comply with federal regulations. The State Board charged him with unprofessional conduct, and a hearing was held in which an expert physician testified that it was clearly improper for a doctor to be writing and selling prescriptions out of the office. The Board found against the doctor, placing him on probation for a minimum of two years during which he could not prescribe controlled substances, requiring ethics education and other sanctions.
 
The trial court upheld the Board’s decision, as did the appellate court. It noted that under Maryland law “unprofessional conduct” by a doctor meant conduct that “breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession.” The Court agreed that there was substantial evidence to support the Board’s finding that such selling or prescriptions for cash “in a public place is a flagrant abandonment of professionalism” and endangers the public. It upheld the Board’s finding that such conduct “diminishes the standing of the medical profession in the eyes of the general public.” 
 
The Court had no difficulty upholding that such practices constituted the unprofessional practice of medicine, noting this standard included a common sense understanding that such behavior is commonly understood to be prohibited in the medical profession.
 
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.
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