[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Notices]
[Pages 55047-55051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26725]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 94-63]


Robert L. Dougherty, Jr., M.D.; Revocation of Registration

    On July 29, 1993, the Deputy Assistant Administrator (formerly 
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to Robert L. Dougherty, Jr., M.D. 
(Respondent), of Poway, California, notifying him of an opportunity to 
show cause as to why DEA should not revoke his DEA Certificate of 
Registration, AD1048861, and deny any pending applications for renewal 
of such registration as a practitioner, under 21 U.S.C. 823(f) and 
824(a)(4), as being inconsistent with the public interest. 
Specifically, the Order to Show Cause alleged that: (1) Between January 
1990 and March 1992, the Respondent prescribed the following controlled 
substances, Demerol, Percocet, Percodan, Preludin, Nembutal, Fastin, 
Tenuate, Valium, and Xanax, to an individual for no legitimate medical 
purpose and outside the scope of his professional practice; (2) between 
December 1990 and December 1991, the Respondent prescribed the 
following controlled substances, Lortab, Vicodin, Darvocet, and other 
dextropropoxyphene combination products, to an individual for no 
legitimate medical purpose and outside the scope of his professional 
practice; (3) between January 1991 and April 1992, the Respondent 
prescribed the following controlled substances, Lortab, Vicodin, and 
Oxazepam, to an individual for no legitimate medical purpose and 
outside the scope of his professional practice; (4) between April 1990 
and July 1990, the Respondent ordered the following controlled 
substances, Demerol, morphine, Lortab, Vicodin, Xanax, and Halcion, 
without maintaining receipt or dispensing records of such orders; (5) 
in April 1992, various controlled substances were located at the 
Respondent's residence although the residence was not a registered 
location at that time.
    On August 18, 1993, the Respondent filed a timely request for a 
hearing, and following prehearing procedures, a hearing was held in San 
Diego, California, on July 26, 27, and 28, 1994, before Administrative 
Law Judge Paul A. Tenney. At the hearing the Respondent was represented 
by counsel, both parties called witnesses to testify and introduced 
documentary evidence, and after the hearing, counsel for both sides 
submitted proposed findings of fact, conclusions of law and argument. 
On January 12, 1995, Judge Tenney issued his Findings of Fact, 
Conclusions of Law, and Recommended Ruling, recommending that the 
Respondent's DEA Certificate of Registration be suspended for a period 
of one year. On January 23, 1995, the Government filed Exceptions to 
the Opinion and Recommended Decision of the Administrative Law Judge, 
and on March 20, 1995, the Respondent filed a Response to the 
Government's Exceptions.
    On March 22, 1995, Judge Tenney transmitted the record of these 
proceeds to the Deputy Administrator.
    The Deputy Administrator has considered the record and the 
submissions of the parties in their entirety, and pursuant to 21 CFR 
1316.67, hereby issues his final order based upon findings of fact and 
conclusions of law as hereinafter set forth. The Deputy Administrator 
adopts the findings of fact and conclusions of law of Judge Tenney, 
except as noted below, and his adoption is in no manner diminished by 
any recitation of facts issues and legal conclusions herein, or of any 
failure to mention a matter of fact or law. However, for reasons 
explained below, the Deputy Administrator rejects Judge Tenney's 
recommendation as to the appropriate disposition of this case.
    The Deputy Administrator finds that in February 1992, as a result 
of a call from a local pharmacist, a DEA Diversion Investigator 
(Investigator) opened a case to investigate allegations that the 
Respondent was prescribing excessive amounts of controlled substances 
to a named individual, Patient #1. In March 1992, an employee of the 
Respondent also called the Investigator concerning the Respondent's 
prescription practices relevant to Patient #1. Next, an agent from the 
California Department of Justice, Bureau of Narcotic Enforcement 
(Agent) obtained a listing of triplicate prescriptions written for 
Schedule II controlled substances for a two year period under the 
Respondent's DEA Certificate of Registration number. She testified 
before Judge Tenney that the overall number was ``fairly modest,'' 
except for those pertaining to Patient #1, which appeared excessive. 
The Investigator sent this listing to a medical doctor, Dr. Denes, for 
review. Without benefit of Patient #1's treatment record, in a letter 
dated March 18, 1992, Dr. Denes wrote that the prescription pattern for 
Patient #1 was highly suspect. For example, Dr. Denes wrote that 
Percodan and Demerol, both Schedule II controlled substances, are 
typically used on a short term basis and prescribed at a maximum of 
four doses per day. However, the Respondent has prescribed enough of 
this substance for Patient #1 to take an average of 3.7 doses per day 
during all of 1990, and 11.4 doses per day in 1991. Dr. Denes also 
wrote that the Respondent's practice of prescribing large quantities of 
both nervous system depressants and nervous system stimulants ``is 
highly irregular in the medical profession and raises the very strong 
likelihood of drug abuse. I cannot conceive of any legitimate medical 
condition which would require the prescribing of these drugs, in these 
quantities, to any patient.'' Relying upon the information received 
from Dr. Denes, DEA obtained 

[[Page 55048]]
a search warrant for the Respondent's office and residence, and 
executed this warrant on April 24, 1992.
    Prior to executing the search warrant, the Investigator had 
obtained ten DEA Form 222's (official triplicate order forms used by 
physicians to order scheduled narcotics), showing shipment dates 
between April 16, 1990, and indicating that a local pharmacy had filled 
the Respondent's orders for Demerol and Morphine, and had shipped the 
orders to the Respondent at his office. At both the Respondent's office 
and home, investigators searched for the Respondent's copies of the 
previously obtained DEA Form 222's. The Respondent had told the 
Investigator the documents were on his desk in his office, but after 
two hours of searching through a disorganized stack of documents on and 
in the Respondent's desk, the Investigator was unable to locate the 
forms. She testified before Judge Tenney that after this two hour 
search she had concluded that the forms were not ``readily 
retrievable'' and she ended her search. The investigators were also 
unsuccessful in locating a ``biennial inventory'' at either the 
Respondent's home or office, and during the hearing before Judge 
Tenney, the Respondent conceded that he had not maintained a biennial 
inventory. Investigators were also unable to locate at either the 
Respondent's home or office receipts for controlled substances that the 
Respondent had purchased from drug distributors between 1990 and 1992, 
or receipts for controlled substances that were actually located at the 
Respondent's office at the time of the search. The Respondent conceded 
that he did not keep receipts for samples of controlled substances that 
he had been given from drug company representatives, substances such as 
Xanax, Valium, and Halcion. During his hearing testimony, the 
Respondent conceded that he had not directed anyone in his office to 
keep a record of the actual receipt of controlled substances, although 
he ``inconsistently, and not most of the time'' placed a note in a 
notebook. The parties dispute the existence of dispensing records, for 
the investigators were unable to locate such records at the time of the 
search, but the Respondent asserted that he maintained dispensing 
records, that those records were located in the pile of documents on 
the top of his desk, but that they disappeared in the search. The 
Respondent testified that the dispensing records were mostly for 
injectable substances (Demerol and morphine), but that there were 
``probably a few, but nothing major'' with respect to ``all the others, 
the samples, [and] the Xanax.'' The Respondent also testified that he 
dispensed samples to patients other than Patient #1, that he had an 
annotation system for the patients' records noting such dispensing, but 
that he did not use this system in Patient #1's record.
    Patient #1 became Respondent's patient in 1974, he is a Vietnam 
veteran who was injured, and he is a medically retired San Diego Police 
Officer. He was medically retired after experiencing three back 
injuries, consulting with at least two neurosurgeons and two orthopedic 
surgeons in San Diego, being diagnosed with extensive lumbar-spine 
disease and a herniated disk in the cervical spine, and requiring pain 
medication pending major surgery. The Respondent testified that he had 
``received, to [his] satisfaction, incontrovertible proof that [Patient 
#1's] pain was real.'' In the early 1980's, Patient #1 received 
treatment at a pain clinic to try to decrease his reliance upon 
narcotic pain medication. Also his treatment record contained notations 
made in the early 1980's as part of an arthritic clinic's treatment, 
reflecting that Patient #1 believed that he was addicted to pain 
medicine, and that the planned treatment was ``to decrease the 
patient's pain-medication addiction.''
    At the hearing before Judge Tenney, the Government called Dr. Ling 
as an expert witness. The parties dispute whether this witness should 
be regarded as an expert witness in pain management, but Judge Tenney 
reviewed the witness's Curriculum Vitae (made a part of the record) as 
well as the witness's testimony concerning his professional education 
and experience, and determined that Dr. Ling was also qualified as an 
expert in pain management. After reviewing Patient #1's treatment 
record, Dr. Ling concluded that generally he had no dispute with the 
manner or amount of controlled substances the Respondent prescribed to 
Patient #1 during the 1980's. However, after Patient #1 moved into the 
Respondent's home in early 1990, the notations in his chart became 
sporadic, ending on December 3, 1991. Dr. Ling testified that the 
Respondent's standard of care as to Patient #1, to include a lack of a 
medical record showing Patient #1's treatment, and the excessive 
amounts of prescribed medication between January 1990 and February 
1992, ``fell below community standards for the average physician.'' He 
conditioned this opinion by stating that the evidence ``does not 
support that the doctor was prescribing for an illegitimate purpose,'' 
or that ``he was doing something dishonest,'' but rather that such 
prescribing was not ``appropriate treatment'' in this case. The 
Respondent rebutted Dr. Ling's opinion by testifying that he altered 
his patient record practices in the case of Patient #1 after he moved 
into his home because he now saw him regularly and was able to closely 
observe him on a daily basis. Further, the Respondent testified that 
between 1990 and 1992 he received samples of Xanax, and gave these to 
Patient #1, although such dispensing was not recorded in his chart. 
Further, the Respondent conceded that from April 1991 through March 
1992, virtually no Schedule II drugs were recorded on Patient #1's 
chart, even though the prescription records obtained from the 
pharmacies recorded that such controlled substances were prescribed and 
the prescriptions filled.
    However, the record also demonstrates that from mid-December 1991 
to April 1992, Patient #1 ``rarely ever'' went into an examination 
room, pursuant to information provided by a member of the Respondent's 
staff. Patient #1 would visit the office to pick up prescriptions, and 
he would often call the Respondent's office and leave a message telling 
the Respondent what controlled substances to bring home. Dr. Ling 
testified that such patient and physician behavior concerned him, 
because the patient's demands seemed to replace the physician's 
judgment. He further testified that he was aware that some chronic pain 
patients receive less medication than they needed, but that he 
continued to maintain that it was still the physician's judgment that 
should control.
    Further, the Investigator interviewed approximately 10 local 
pharmacists, and the names of Patient #2 and Patient #3 were given as 
patients of the Respondent who also may have been overprescribed. On 
October 24, 1990, the Respondent issued Patient #2 an original 
prescription for 30 dosage units of Vicodin, he saw this patient again 
on November 14, 1990, and although the Respondent did not see this 
patient again until May 1, 1991, he authorized more than twenty refills 
from the October 24, 1990, prescription for Vicodin, a medication 
containing hydrocodone, a Schedule III controlled substance. Following 
this same pattern, the Respondent also issued Patient #2 an original 
prescription for Darvocet-N 100 on October 24, 1990, and between that 
date and May 1, 1991, he authorized more than twenty refills of 
Darvocet, a medication containing propoxyphene napsylate, a Schedule IV 
controlled substance.

[[Page 55049]]

    The parties stipulated that Patient #3 forged prescriptions. Of 
record is a list of forged prescriptions under the Respondent's name, 
indicating that on February 3, 1992, February 13, 1992, March 18, 1992, 
April 17, 1992, April 18, 1992, April 20, 1992, and April 21, 1992, a 
total of 396 dosages of Lortab were dispensed to Patient #3, a 
medication which contains a Schedule III controlled substance. The 
record contains evidence that acts were taken between January 1990 and 
April 1992, to notify the Respondent of Patient #3's forgeries: (1) In 
January 1990, a pharmacist contacted the Respondent's office about 
forged prescriptions from Patient #3, (2) a letter dated February 6, 
1992, was written to the Respondent informing him of a suspicious 
prescription written to Patient #3 despite the Respondent's office's 
verification of the prescription which the pharmacist had filled, and 
(3) in April 1992, the Respondent received notification from another 
pharmacist about forged prescriptions for a controlled substance for 
Patient #3. However, the Respondent authorized the refills and 
continued to prescribe Lortab for Patient #3.
    Also, Patient #3 was interviewed by the Investigator and the Agent, 
and a transcript of that interview was made a part of the record. 
Patient #3 stated that he had been a patient of the Respondent's from 
July 1990 to about June 1992, that he had told the Respondent of his 
past drug addiction problems, but that the Respondent continued to 
prescribe Lortab, a Schedule III controlled substance. He also stated 
that the Respondent talked to him about forged prescriptions, that he 
had denied forging the prescriptions, but that the Respondent had told 
him that he did not believe his denial. However, the Respondent 
continued prescribing Lortab even after this conversation. Patient #3 
stated that in June 1992 he stopped receiving treatment from the 
Respondent and that he went into a rehabilitation treatment center for 
90 days to overcome his addiction to Lortab.
    Finally, the Respondent testified that he believed Patient #3 had 
valid complaints of pain stemming from history of back pain, that he 
never received a copy of a forged prescription regarding Patient #3, 
that he did not see such a copy until June 1992, when he then realized 
Patient #3 had been deceiving him. Further, he stated that on June 1, 
he told Patient #3 he should see another doctor, but that he gave his a 
small supply of Lortab to take until he could get into a clinic on June 
24th. He testified that Patient #3 returned to his office a week later, 
but that he merely gave him a non-narcotic pain medication. After 
reviewing Patient #3's chart, Dr. Ling concluded that the Respondent's 
prescribing practices were excessive with poor documentation of the 
need for those narcotics, demonstrating a lack of usual care and 
precaution in dealing with these kinds of prescriptions.
    Pursuant to 21 U.S.C. Sections 824(a)(4) and 823(f), the Deputy 
Administrator may revoke or suspend a DEA Certificate of Registration 
if he determines that the continued registration would be inconsistent 
with the public interest. Pursuant to 823(f), the following factors are 
to be considered ``in determining the public interest:''
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the manufacture, 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 or 
safety.
    These factors are to be considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight he deems appropriate in determining whether 
a registration should be revoked or an application for registration 
denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422 
(1989).
    In this case, factors two, four, and five are relevant in 
determining whether the Respondent's retention of his Certificate of 
Registration would be inconsistent with the public interest. As to 
factor two, the Respondent's ``experience in dispensing controlled 
substances,'' the Deputy Administrator finds that both Dr. Denes and 
Dr. Ling agreed that the Respondent's dispensing of controlled 
substances to Patient #1 between January 1990 and February 1992, was 
``highly irregular in the medical profession,'' and was excessive. To 
be effective, a prescription for a controlled substance ``must be 
issued for a legitimate medical purpose by an individual practitioner 
acting in the usual course of his professional practice.'' 21 CFR 
1306.04(a); see also Harlan J. Borcherding, D.O., 60 FR 28,796, 28,798 
(1995). Here, Dr. Ling observed that the Respondent's management of 
Patient #1's medical treatment demonstrated behavior such that the 
patient's demands seemed to replace the physician's judgment. Such 
actions on the part of the Respondent certainly bring into serious 
question the legitimacy of his dispensing of controlled substances to 
Patient #1. The Deputy Administrator has previously found that 
prescriptions issued under such circumstances were not for a legitimate 
medical purpose, when an undercover officer dictated the controlled 
substance to be given, ``rather than Respondent, as a practitioner, 
determining the medication appropriate for the medical condition 
presented by the officer.'' Ibid. Here, Judge Tenney concluded, and the 
Deputy Administrator agrees, that the Respondent's experience included 
dispensing controlled substances to Patient #1 ``on demand,'' 
``virtually upon request,'' with ``virtually no scrutiny,'' and with 
``virtually no records or monitoring in the early 1990[']s,'' and such 
dispensing practices demonstrated the Respondent's ``gross lack of 
judgment.'' See Borcherding, supra. Further, the Respondent's practice 
of giving Patient #1 Xanax samples without documenting his record, also 
leads to the conclusion, as Judge Tenney noted, that the Respondent's 
prescribing and dispensing to Patient #1 was ``outside the context of 
the Respondent's usual professional practice.''
    Also, the dispensing of a controlled substance in the quantities 
prescribed to Patient #3, a patient known to the Respondent as an 
admitted drug abuser, even after receiving warnings of forged 
prescriptions, demonstrates at least a lack of precaution, and more 
probably a disregard of the requirements for detailed attention to 
individual patient behavior necessary for the dispensing of controlled 
substances. See, e.g., Jay Wheeler Cranston, M.D., Docket No. 92-70, 59 
FR 36,786 (1994). Also, the excessive number of refills provided 
Patient #2 over a six-month period of time without requiring a clinical 
examination or visit, demonstrates a reckless disregard for medical 
standards in dispensing controlled substances. Thus, the Deputy 
Administrator agrees with Judge Tenney that the Government has 
established a prima facie case under factor two.
    As to factor four, ``compliance with applicable State, Federal, or 
local laws,'' Federal regulations as well as State law established 
requirements and refill restrictions. The Government's brief provided 
excerpts of California law dealing with prescription refills and 
requirements, and the Respondent did 

[[Page 55050]]
not object to this statement of the State law.
    Therefore, as to refills, Federal regulation, 21 CFR 1306.22(a), 
provides in relevant part that ``[n]o prescription for a controlled 
substance listed in Schedule III or IV shall be filled or refilled more 
than six months after the date on which such prescription was issued 
and no such prescription authorized to be refilled may be refilled more 
than five times * * *. (4) The prescribing practitioner must execute a 
new and separate prescription for any additional quantities beyond the 
five refill, six-month limitation.'' Further, California Health and 
Safety Code 11200 states in relevant part that ``[n]o person shall 
dispense or refill a controlled substance prescription more than six 
months after the date thereof or cause a prescription for a Schedule 
III or IV substance to be refilled in an amount in excess of a 120 day 
supply, unless renewed by the prescriber.'' In this case, the 
Respondent authorized an original prescription to Patient #2 for 
Vicodin, containing a Schedule III controlled substance, and Darvocet-N 
100, containing a Schedule IV controlled substance, on October 24, 
1990, and between that date and May 1, 1991, a time exceeding six 
months, authorized more than twenty refills each for Vicodin and 
Darvocet, in violation of both Federal regulation and State law.
    As for recordkeeping requirements, 21 U.S.C. 827(a)(3) provides in 
relevant part: ``* * * on and after May 1, 1971, every registrant under 
this subchapter dispensing a controlled substance or substances shall 
maintain, on a current basis, a complete and accurate record of each 
substance * * * received, sold, delivered, or otherwise disposed of by 
him,'' and 827(b) provides that ``Every inventory or other record 
required under this section (1) shall be in accordance with, and 
contain such relevant information as may be required by, regulations of 
the Attorney General, (2) Shall (A) be maintained separately from all 
other records of the registrant, or (B) alternatively, in the case of 
non-narcotic controlled substances, be in such form that information 
required by the Attorney General is readily retrievable from the 
ordinary business records of the registrant, and (3) shall be kept and 
be available, for at least two years, for inspection and copying by 
officers or employees of the United States authorized by the Attorney 
General.'' Also, 21 U.S.C. 842(a)(5) provides: ``It shall be unlawful 
for any person-- (5) to refuse or fail to make, keep, or furnish any 
record, report * * * order or order form, * * * required under this 
subchapter or subchapter II of this chapter.''
    Federal recordkeeping regulations also exist, and 21 CFR 1304.04(a) 
provides in relevant part: ``Every inventory and other records required 
to be kept under this part shall be kept by the registrant and be 
available, for at least 2 years from the date of such inventory or 
records, for inspection and copying by authorized employees of the 
Administration.'' Further, 21 CFR 1304.24 requires dispensers to 
maintain records for each controlled substance reflecting, among other 
things, the number of commercial containers received, the number of 
units dispensed, with detailed information concerning the person to 
whom it was dispensed, and information concerning any other method of 
disposal of the substance. Finally, 21 CFR 1305.03 dictates that a DEA 
Form 222 be used for each distribution of a controlled substance listed 
in Schedule I or II, and 21 CFR 1305.13 requires that these order forms 
be maintained separately from all other records and ``are required to 
be kept available for inspection for a period of 2 years.''
    Applicable State statues, specifically California Health and Safety 
Code 11190, require practitioners such as the Respondent, who issue a 
prescription, dispense, or administer Schedule II controlled 
substances, to create and maintain a record which identifies the 
patient, pathology, and purpose for each such transaction. Per Section 
11191, the record is to be maintained for three years, and violations 
may result in criminal prosecution. Further, Section 11192 states that 
``proof that a defendant received or has had in his possession at any 
time a greater amount of controlled substances than is accounted for by 
any record required by law *  *  * is prima facie evidence of a 
violation of [section 11190].''
    Here, the Investigator obtained ten DEA 222 order forms showing 
that a local pharmacy had filled the Respondent's orders for Demerol 
and morphine, Schedule II substances, and shipped the order between 
April 16, 1990, and July 23, 1990. Yet on April 24, 1992, the 
Respondent was unable or unwilling to produce, or make ``readily 
retrievable,'' the documentation required to be maintained by both 
Federal and State law as to the DEA Form 222. Also, on the day of the 
execution of the search warrant, the Respondent had controlled 
substances at his office and home, and yet the investigators could not 
find the required biennial inventory documentation, receipts for the 
controlled substances, either bought by the Respondent or distributed 
to the Respondent gratis as samples, or his dispensing documentation. 
In fact, the Respondent conceded that he did not keep receipts for 
samples of controlled substances that he had been given, substances 
such as Xanax, Valium, and Halcion, despite the statutory and 
regulatory requirements to maintain such records. The Respondent argued 
in his post-hearing brief that the failure to find the required records 
does not establish by a preponderance of the evidence that he had 
violated the recordkeeping statutes. However, the Respondent conceded 
the lack of biennial inventory records, receipts for samples of 
controlled substances, and a lack of dispensing records meeting the 
statutory requirements. Further, the evidence established that the 
Respondent was unable to produce at least seven DEA Form 222's upon 
request. In total, the preponderance of the evidence established that 
the Respondent has failed to comply with applicable Federal and State 
laws relating to controlled substances. Such a blatant disregard for 
statutory provisions implemented to maintain a record of the flow of 
controlled substances and to prevent the diversion of controlled 
substances to unauthorized individuals, would justify revocation of the 
Respondent's registration. See, e.g., George D. Osafo, M.D., Docket No. 
92-75, 58 FR 37,508, 37,509 (1993) (noting ``that Respondent failed to 
comply with numerous recordkeeping requirements and noted that it is a 
registrant's responsibility to be familiar with the Federal regulations 
applicable to controlled substances''). Again, the Deputy Administrator 
agrees with Judge Tenney that the Government has established a prima 
facie case under factor four.
    As to factor five, ``such other conduct which may threaten the 
public health or safety,'' the Deputy Administrator finds relevant Dr. 
Ling's testimony that the Respondent's failure to maintain accurate, 
current, and complete patient treatment records for Patient #1, a fact 
conceded by the Respondent, Patient #2, and Patient #3, demonstrated a 
lack of usual care and precaution required of a physician, especially 
one issuing controlled substance prescriptions supposedly in response 
to documented patient need. A threat to public health and safety is 
created by such inaccurate documentation, for, as noted by Judge 
Tenney, ``[i]n the event that another physician were required to treat 
either [Patient I or Patient II], i.e., if the Respondent suddenly fell 
ill, such treatment could be seriously impeded 

[[Page 55051]]
by the Respondent's shoddy documentation.''
    Further, the Respondent's lack of attention to warnings received by 
him or his staff concerning Patient #3's conduct in forgoing controlled 
substance prescriptions, coupled with his knowledge of that patient's 
drug abuse history, creates grave doubt as to the Respondent's 
prescription practices to known drug abusers. Also, the record lacks 
any evidence to show that despite such warnings, the Respondent ceased 
prescribing controlled substances to this patient until he obtained and 
documented accurate information about the amounts of such substances 
actually received by Patient #3 through the use of these forged 
prescriptions. Such conduct shows a carelessness inappropriate for 
continued registration. The Deputy Administrator finds unconvincing the 
Respondent's arguments that he should not be accountable for the acts 
of Patient #3, for it is the inaction of the Respondent which forms the 
gravamen of the problem warranting revocation of the Respondent's 
registration: specifically, his failure to insure staff members pass on 
warnings from local pharmacists, and his failure to heed and respond to 
written communication received from local pharmacists, especially 
concerning a patient known to the Respondent as having a history of 
drug addiction.
    The Government filed exceptions, the Respondent filed a Response to 
the Government's Exceptions, and the Deputy Administrator has reviewed 
these filings, concluding that only limited comment is required. First, 
as to the Respondent's exception about the Government's evidence and 
argument regarding the clinical decisions to be made concerning Patient 
#3 and referral to a pain clinic, the Deputy Administrator agrees with 
the Respondent, and such evidence and argument as to the timing of 
physician treatment decisions pertaining to Patient #3's referral have 
not been a factor in resolving this case. However, this response does 
not mitigate the fact that the Respondent was provided notice of 
Patient's #3 forged prescriptions as early as January 1990, and yet he 
did not act to investigate or otherwise curtail prescribing controlled 
substances to this patient, or act to obtain information verifying the 
exact amount of controlled substances in this patient's possession. 
Next, the Respondent takes exception to the Government's inferring that 
the Respondent should be responsible for the acts of Patient #1 in 
informing the Respondent of a potential undercover investigation. The 
Deputy Administrator agrees and has not relied upon this fact in 
analyzing or reaching his decision. The Respondent goes on to note that 
he has not been charged with illegally prescribing medication to 
undercover agents and that there was no evidence introduced at the 
hearing that he participated in such activity. Such a statement is 
true, but the Deputy Administrator notes that such evidence is not 
required to justify a revocation. See Richard A. Cole, M.D., Docket No. 
90-53. 57 FR 8677, 8680 (1992) (noting that conviction is not the only 
ground or factor justifying a revocation, but rather finding that the 
``Respondent's experience in dispensing controlling (sic) substances, 
his compliance with laws relating to these drugs[,] and other conduct 
which may threaten the public health and safety may likewise support 
the revocation of a registration''). The remainder of the Government's 
exceptions and the Respondent's response are of record and require no 
further discussion here.
    In conclusion, Judge Tenney wrote that he found ``overwhelming 
evidence that the Respondent is both a respected physician and member 
of his community, and that he has served it faithfully for many years. 
In light of this evidence, I am confident that the Respondent will 
remedy the deficiencies in his practice.'' Although acknowledging the 
Respondent's evidence of his lengthy contribution to the community and 
his status as an admired physician, the Deputy Administrator 
respectfully declines to adopt Judge Tenney's finding as to the 
Respondent's future correction of the deficiencies in his practice, or 
Judge Tenney's resulting recommendation that the Respondent's DEA 
Certificate of Registration be suspended for one year. Rather, reviewed 
in total, the Deputy Administrator finds that the Respondent's (1) 
failure to acknowledge the need for adequate recordkeeping to insure 
controlled substances are not diverted into the public forum for 
illegitimate purposes, (2) lack of remorse concerning his own unlawful 
recordkeeping and refill practices, (3) failure to act in a timely 
manner upon, and to take responsibility for, receipt of information 
given to him or to his staff concerning the forged prescriptions of 
Patient #3 and (4) lack of acknowledgment that the inadequate treatment 
record of Patient #1 could have ultimately jeopardized that patient's 
welfare, lead to the conclusion that the revocation of the Respondent's 
DEA Certificate of Registration is in the public interest. See Leo R. 
Miller, M.D., Docket No. 86-93, 53 FR 21,932, 21,933 (1988) (noting 
that the revocation of a DEA Certificate of Registration ``is a 
remedial measure, based upon the public interest and the necessity to 
protect the public from those individuals who have misused * * * their 
DEA Certificate of Registration, and who have not presented sufficient 
mitigating evidence to assure the Administrator that they can be 
trusted with the responsibility carried by such a registration''). The 
Deputy Administrator is aware of the substantial impact of the 
revocation of a physician's controlled substance registration, and it 
is not a remedy which he orders without due consideration of 
alternatives. However, the Deputy Administrator is also charged with 
protecting the public from the harm resulting from the improper 
handling of legitimately produced controlled substances.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824, and 21 CFR 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration AD1048861, previously issued to Robert L. 
Dougherty, Jr., M.D., be, and it hereby is, revoked. It is further 
ordered that any pending applications for renewal of said registration 
be, and hereby are, denied.

    This order is effective November 27, 1995.

Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-26725 Filed 10-26-95; 8:45 am]
BILLING CODE 4410-09-M