[Federal Register Volume 59, Number 28 (Thursday, February 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3024]


[[Page Unknown]]

[Federal Register: February 10, 1994]


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DEPARTMENT OF JUSTICE
[Docket No. 92-74]

 

David W. Bradway, M.D.; Denial of Application

    On July 7, 1992, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to David W. Bradway, M.D. 
(Respondent), of Magnolia, New Jersey, seeking to deny his application 
for a DEA Certificate of Registration. The statutory basis for the 
Order to Show Cause was that Respondent's registration would be 
inconsistent with the public interest, as that term is used in 21 
U.S.C. 823(f).
    Respondent, through counsel, requested a hearing on the issues 
raised by that Order to Show Cause, and the matter was docketed before 
Administrative Law Judge Paul A. Tenney. Following prehearing 
procedures, a hearing was held in Washington, DC, on November 12, 1992. 
On January 27, 1993, in his findings of fact, conclusions of law, and 
recommended ruling, the administrative law judge recommended that the 
Administrator grant Respondent a DEA Certificate of Registration.
    On February 12, 1993, the Government filed exceptions to Judge 
Tenney's opinion pursuant to 21 CFR 1316.66, and on March 11, 1993, the 
administrative law judge transmitted the record to the Administrator. 
The Acting Administrator has carefully considered the entire record in 
this matter and, pursuant to 21 CFR 1316.67, hereby issues his final 
order in this matter based upon findings of fact and conclusions of law 
as hereinafter set forth.
    The Acting Administrator finds that on January 30, 1979, New Jersey 
police found the body of a deceased individual. The detective who 
discovered the body also found a receipt for a prescription written by 
the Respondent on the body. This began an investigation of the 
Respondent which included obtaining controlled substance prescriptions 
from area pharmacies that were written by the Respondent. The 
prescriptions were written by the Respondent in his own name, in the 
names of young men who testified at Respondent's criminal trial, and in 
the names of some of Respondent's relatives, none of whom ever received 
a prescription from the Respondent.
    The investigation by New Jersey authorities further revealed that 
during a seven month period from January to July 1978, Respondent 
ordered and received from a pharmaceutical distributor large quantities 
of controlled substances. During this period however, Respondent was 
pursuing his residency in radiology, and therefore, had no legitimate 
medical need for these drugs.
    On November 3, 1980, in the New Jersey Superior Court for 
Cumberland County, Respondent was convicted of one count of conspiracy: 
To distribute, possess and possess with intent to distribute, 
controlled substances; to induce, persuade, aid and contribute to the 
unlawful use of a narcotic drug; and to knowingly and intentionally 
keep a residence for the purpose of using controlled dangerous 
substances; thirty counts of unlawful distribution of controlled 
substances; four counts of unlawful possession with intent to 
distribute controlled substances; and one count of manslaughter by 
unlawfully distributing controlled substances in such a grossly 
negligent and reckless manner as the cause the death of an individual.
    Respondent previously possessed DEA Certificate of Registration, 
AB7672517. On November 1, 1981, DEA issued an Order to Show Cause 
proposing to revoke Respondent's previous DEA Certificate of 
Registration. Following a January 1983 hearing in the matter, the then-
Administrator concurred with the findings of the administrative law 
judge: That Respondent issued prescriptions for Demerol and Quaaludes 
in his own name, and in the names of his friends and relatives; these 
prescriptions were not issued for a legitimate medical purpose, but 
were in fact used to obtain drugs for personal use and abuse; because 
of Respondent's unlawful actions, a friend attending one of 
Respondent's ``drug parties'', died of a drug overdose; Respondent's 
friends became addicted to Demerol as was Respondent himself; and there 
was no reasonable assurance that Respondent was a different person or 
markedly changed from the time he had committed these crimes. As a 
result of these findings, the then-Administrator revoked Respondent's 
previous DEA Certificate of Registration. See David W. Bradway, M.D., 
Docket No. 81-26, 48 FR 49937 (October 28, 1983).
    On September 19, 1987, Respondent filed a new application for DEA 
registration, and DEA again issued an Order to Show Cause proposing to 
deny Respondent's application. On November 1, 1988, an administrative 
hearing was held before Administrative Law Judge Mary Ellen Bittner. 
Respondent was not represented by counsel, and did not testify.
    During the hearing, Respondent presented the testimony of his 
employer, who testified to his supervision of Respondent's employment 
as a medical practitioner. The Director of the New Jersey Physician's 
Health Program also testified on behalf of the Respondent. The Director 
testified to Respondent's rehabilitation based upon Respondent's 
participation in the Physician's Health Program, and to Respondent's 
ability to handle controlled substances.
    Following the administrative hearing, Judge Bittner recommended 
that Respondent be granted a DEA registration for Schedules IV and V, 
with certain conditions. However, the then-Administrator did not follow 
the recommendation, in part because of his finding that the testimony 
regarding Respondent's rehabilitation was not credible; Respondent's 
failure to testify which left little evidence of his rehabilitation; as 
well as, the absence of any psychiatric testimony or report regarding 
Respondent's own use of dangerous controlled substances. As a result, 
the then-Administrator denied Respondent's application for a DEA 
Certificate of Registration. See David W. Bradway, M.D., Docket No. 88-
62, 54 FR 53382 (December 28, 1989).
    The factual determinations relied upon by the previous 
Administrators relating to the prior revocation of Respondent's DEA 
registration, and the denial of his subsequent application for a 
Certificate of Registration, are conclusive, and accordingly, the 
Acting Administrator hereby adopts the above-referenced final orders in 
their entirety.
    In this proceeding, no new allegations of improper handling of 
controlled substances were introduced. As a result, the critical issue 
is whether the circumstances, which existed during the time of the 
prior proceedings, have changed sufficiently to support a conclusion 
that Respondent's registration is now in the public interest.
    At the November 12, 1992 administrative hearing, the Respondent 
testified. The administrative law judge found that Respondent testified 
with great sincerity and obvious pain concerning the remorse and regret 
that he felt about the events leading to the individual's death. The 
Respondent also testified regarding his ongoing participation in the 
Physician's Health Program sponsored by the New Jersey Academy of 
Medicine, and how the program not only assisted the Respondent in his 
own rehabilitation, but also permitted the Respondent to become 
involved with different physicians in self-help groups.
    The administrative law judge also found persuasive an October 29, 
1992 psychiatric report which was placed into evidence by the 
Respondent. The report outlined Respondent's satisfactory steps toward 
rehabilitation, and also recommended Respondent's continued close 
contact with the Physician's Health Program and continued random drug 
testing when deemed necessary by program officials.
    The Director of the New Jersey Physician's Health Program again 
testified on behalf of the Respondent. As with the previous 
administrative hearing, the Director testified to Respondent's recovery 
from drug usage, and to the likelihood of Respondent relapsing to drugs 
at this stage of his life and abusing his privileges to prescribe them 
as being, ``extremely remote.''
    The administrative law judge further found that the opinion 
testimony given at this proceeding by the Director regarding 
Respondent's recovery, was entitled to more weight than the testimony 
given by him at the November 1988 administrative hearing. The 
administrative law judge attributed this finding to the passing of an 
additional four or five years without any drug incidents, and that the 
Director's opinion was consistent with the psychiatric report.
    Pursuant to 21 U.S.C. 823(f), ``[i]n determining the public 
interest, the following factors will be considered:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing controlled substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the distribution, or dispensing of controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.''
    It is well established that these factors are to be considered in 
the disjunctive, i.e., the Administrator may properly rely on any one 
or a combination of the factors and give each factor the weight he 
deems appropriate. See Henry J. Schwartz, Jr., M.D., Docket No. 88-42, 
54 FR 16422 (1989).
    The administrative law judge found factors two, three, four and 
five relevant based upon Respondent's unlawful writing of prescriptions 
and subsequent administering of controlled substances to youths, 
including administering controlled substances to an individual, whose 
death was attributed to Respondent's administering of controlled 
substances; Respondent's multiple count conviction in November 1980; 
and, Respondent's writing of prescriptions in his name, the names of 
relatives, as well as the names of the youths for no legitimate medical 
purpose.
    The administrative law judge found that, based upon Respondent's 
testimony and demeanor during the hearing, the medical diagnosis given 
in the psychiatric report, as well as the testimony of the Director of 
the New Jersey Physician's Health Program regarding Respondent's 
recovery from drug abuse, Respondent had produced evidence which was 
heretofore lacking and which persuasively indicated that Respondent's 
registration is in the public interest. The administrative law judge 
therefore recommended that the Administrator grant the Respondent's 
application for a DEA Certificate of Registration, however, with two 
limitations: Consistent with the suggestions of the psychiatric report, 
the Respondent would remain in close contact with the Physician's 
Health Program to the extent that the program may see the need for 
random drug testing; and that Respondent keep meticulous records of all 
controlled substances that he prescribes in the course of any medical 
practice: The record of each prescription to include the date, name, 
and address of the patient; and the name, quantity and strength of the 
controlled substance prescribed, with the records to be forwarded to 
the DEA Camden, New Jersey Resident Office on a monthly basis for a 
period of one year.
    The Government filed exceptions to the administrative law judge's 
recommendation, based in part upon matters involving Respondent's 
unlawful conduct with respect to controlled substances. In addition to 
arguing that Respondent would have unlimited access to the same drugs 
he once unlawfully administered and abused, the Government outlined the 
egregious nature of Respondent's past conduct which ultimately led to 
his criminal convictions: His obtaining controlled substances for no 
legitimate medical purpose; injecting young men as well as himself with 
dangerous combinations of controlled substances and causing the youths 
to become addicted to Demerol; and, his administering controlled 
substances to an individual which resulted in the latter's death.
    The Government further argued that the administrative law judge's 
recommendation does not reconcile itself to a previous finding in a 
similar matter, where the administrative law judge recommended a 
restricted registration. See Frank Chin, M.D., Docket No. 92-13, 57 FR 
47673 (1992). Finally, in its argument against the Respondent's 
registration, the Government argued that the lapse of time since 
Respondent last possessed a DEA Certificate of Registration was a 
factor worthy of consideration.
    In its exceptions, the Government urged the Administrator to deny 
the Respondent's application for a Certificate of Registration. 
However, the Government also argued in the alternative, that if 
Respondent's application is granted, that his registration be 
restricted to Schedules IV and V.
    The Acting Administrator, having considered the entire record, 
determines that the registration of the Respondent is still not in the 
public interest. Although the Respondent has presented evidence which 
demonstrates his progress towards recovery from substance abuse, and 
has indicated remorse over events leading up to the individual's death, 
the Acting Administrator adopts the finding of the then-Administrator 
in his final order published in the Federal Register on December 28, 
1989: ``It is the position of the DEA that a Certificate of 
Registration to handle controlled substances is a privilege, not a 
right, and it should only be granted to doctors who have demonstrated 
high standards of ethical conduct and who are completely trustworthy in 
handling dangerous controlled substances * * *.''
    It is the judgment of the Acting Administrator that the Respondent 
has not demonstrated either ethical conduct nor trustworthy behavior to 
warrant the granting of a DEA Certificate of Registration. The Acting 
Administrator concludes that the record does not support a finding that 
the Respondent can be entrusted with a DEA Certificate of Registration.
    Having concluded that there is a lawful basis for the denial of 
Respondent's application for a DEA Certificate of Registration, and 
having further concluded that Respondent's registration would not be in 
the public interest, it is the Acting Administrator's conclusion that 
the Respondent's application be denied. Accordingly, the Acting 
Administrator of the Drug Enforcement Administration, pursuant to the 
authority vested in him by 21 U.S.C. 283 and 28 CFR 0.100(b), hereby 
orders that the application of David W. Bradway, M.D., for registration 
under the Controlled Substances Act, be, and it hereby is, denied. This 
order is effective February 10, 1994.

    Dated: February 4, 1994.
Stephen H. Greene,
Acting Administrator of Drug Enforcement.
[FR Doc. 94-3024 Filed 2-9-94; 8:45 am]
BILLING CODE 4410-09-M