[Federal Register Volume 65, Number 234 (Tuesday, December 5, 2000)]
[Notices]
[Pages 75969-75972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30931]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99-7]


In the Matter of Mary Thomson, M.D.; Continuation of Registration 
With Restrictions

    The Deputy Assistant Administrator, Office of Diversion Control, 
Drug Enforcement Administration (DEA), issued an Order to Show Cause 
dated October 30, 1998, to Mary Thomson, M.D. (Respondent), seeking to 
revoke the Respondent's DEA Certificate of Registration, BT3320203, 
pursuant to 21 U.S.C. 824(a)(2) and (4); and deny any pending 
application for renewal of such registration pursuant to 21 U.S.C. 
823(f) because her registration would be inconsistent with the public 
interest as defined by 21 U.S.C. 823(f). Specifically, the Order to 
Show Cause alleged that Respondent (1) became opiate dependent on 
Demerol, a Schedule II Controlled Substance, and received in-patient 
treatment for chemical dependency; (2) tested positive for opiates and 
benzodiazepines in October of 1995 and had her hospital privileges 
suspended; (3) obtained controlled substances by fraud or 
misrepresentation by issuing prescriptions for controlled substances in 
names of persons for whom such controlled substances were not intended 
and administered the controlled substances to herself for no legitimate 
medical purpose and not in the usual course of her professional 
practice; (4) pled guilty to one felony count of obtaining controlled 
substances by fraud and received three years of probation, community 
service, and a fine; and (5) admitted to using controlled substances 
without a legitimate medical purpose and diverting controlled 
substances to her own use. Respondent requested to hearing in a letter 
filed November 30, 1998. The requested hearing was held in Dallas, 
Texas, on April 6-8, 1999. At the hearing both parties called witnesses 
to testify and introduced documentary evidence. After the hearing, both 
parties submitted Proposed Findings of Fact, Conclusions of Law, and 
Argument. On January 4, 2000, Judge Randall issued her Opinion and 
Recommended Rulings, Findings of Fact, Conclusions of Law, and 
Decision, recommending that Respondent's registration be continued, 
subject to three restrictions. The Government thereafter filed 
Exceptions to Judge Randall's Opinion and Recommended Rulings, Findings 
of Fact, Conclusions of Law, and Decision; and Respondent filed 
Responses to the Government's Exceptions, The record was transmitted to 
the Deputy Administrator for final decision February 16, 2000.
    The Deputy Administrator has considered the record in its 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 Opinion and Recommended Rulings, 
Findings of Fact, Conclusions of Law, and Decision of the 
Administrative Law Judge, but includes additional restrictions on 
Respondent's continued registration. His adoption is in no manner 
diminished by any recitation of facts, issues, and conclusions herein, 
or of any failure to mention a fact or matter of law. The Deputy 
Administrator finds the following facts especially relevant to his 
decision.
    Respondent was a practicing pharmacist from 1980 until 1987. 
Respondent has practiced medicine since 1994, when she completed her 
medical education. During the course of her medical education, 
Respondent earned several performance awards, including ``Resident 
Physician of the Month,'' ``Resident of the Year,'' and ``Outstanding 
Third Year Resident.'' Respondent was employed by St. Mary's Hospital 
from 1994 until she resigned by letter received May 6, 1996. Respondent 
is currently employed as the sole full time physician for Special 
Health Resources of East Texas (SHRET). SHRET is a non-profit public 
organization funded at least in part by government grants. Respondent 
works in three clinics serving a large part of East Texas and also 
provides treatment for HIV patients at the Well Spring Recovery Center, 
a center for patients with HIV and substance abuse problems. Most of 
the patients who avail themselves of SHRET's services

[[Page 75970]]

are the needy and indigent, and who are also mostly suffering from HIV 
and related complications. Respondent also administers Phase III 
clinical trials of experimental AIDS drugs, and follows the treatment 
of participating patients. Respondent's co-workers at SHRET variously 
describe her patient care as ``excellent'' and ``exceptional.'' 
Respondent also provides HIV/AIDS awareness and treatment training to 
local healthcare professionals, including other physicians.
    Before, during, and after the events at issue, Respondent suffered 
from a number of serious medical disorders, including Lyme Disease and 
Bipolar Disorder, Type II. The Bipolar Disorder was diagnosed in June 
of 1996, subsequent to the events forming the basis for the Show Cause 
Order. Prior to this diagnosis, Respondent's Bipolar Disorder symptoms 
had been incorrectly diagnosed as depression, and were being treated as 
such. Judge Randall credited Respondent's treating psychiatrist's 
testimony that this misdiagnosis of Respondent's Bipolar Disorder 
contributed to her susceptibility to drug use. Since her diagnosis, 
Respondent's Bipolar Disorder has been treated with lithium, and her 
levels are monitored by a psychiatrist on a monthly basis.
    On June 28, 1995, Respondent was escorted from St. Mary's Health 
Care clinic, her place of employment, because nurses there noticed 
Respondent behaving strangely, that her speech was slurred, and that 
she was unsteady on her feet. Following Respondent's departure, 
hospital staff found in Respondent's desk drawer two used syringes and 
four vials labeled ``Demerol 50 mg'', one partially empty. Each vial 
listed the same patient's name, hereinafter referred to as J.T. Rather 
Than resign, or submit to close monitoring by St. Mary's Hospital, 
Respondent entered an in-patient recovery center for one week, and 
thereafter attended recovery groups three to five times a week.
    On October 13, 1995, nurses working with Respondent again noticed 
strange behavior by Respondent, who seemed confused while examining 
patients, and again exhibited slurred speech. Respondent agreed to 
provide a urine sample to test for controlled substances. The test was 
positive for opiates and benzodiazepines. At the time, however, 
Respondent had just had minor surgery, and the evidence shows that the 
positive results of this test were from validly prescribed drugs 
related to this surgery.
    On November 15, 1995, Respondent entered into an impaired physician 
agreement with St. Mary's Hospital. The agreement provided that 
Respondent would submit to weekly drug testing, would attend Alcoholics 
Anonymous meetings three times a week, and that Respondent would not 
prescribe any medication for herself.
    On March 20, 1996, Respondent tested positive for amphetamines, and 
subsequently resigned from St. Mary's, rather than face a peer review 
committee. Respondent's supervisor subsequently testified that this 
drug test was a false positive, that could be explained by Respondent's 
use of a decongestant, an antihistamine, or by prescription 
antidepressant drugs.
    On February 11, 1997, Respondent was indicted in the United States 
District Court for the Northern District of Texas, Lubbock Division 
(Court), for 12 counts of knowingly and intentionally obtaining and 
acquiring injectable meperidine, also known as Demerol, a Schedule II 
narcotic controlled substance, by misrepresentation, fraud, forgery, 
deception, or subterfuge, in violation of 21 U.S.C. 843(a)(3), and one 
count of knowingly and intentionally obtaining and acquiring oxycodone, 
a Schedule II narcotic controlled substance, by misrepresentation, 
fraud, forgery, deception, or subterfuge, in violation of 21 U.S.C. 
843(a)(3). On June 9, 1997, Respondent pled guilty to count eight of 
the indictment and was sentenced to three years probation. Pursuant to 
the plea agreement, Respondent was required to participate in a program 
for the treatment of narcotic dependency, including drug testing; 
refrain from employment as a physician or pharmacist for the duration 
of probation except with the written consent of the Court; participate 
in mental health services as directed by the probation officer; provide 
50 hours of community service; and pay a fine.
    On August 9, 1997, the Texas Board of Medical Examiners (Board) 
revoked Respondent's license to practice medicine in Texas; however, 
the Board probated the revocation, placing Respondent on probation for 
ten years, subject to the terms and conditions set forth in an Agreed 
Order with Respondent. The Deputy Administrator finds the following 
conditions set by the Board especially relevant: (1) Respondent shall 
obtain written consent from the United States District Court during the 
probationary period for employment as a physician in the State of 
Texas; (2) Respondent may only practice in an institutional setting as 
approved by the Board; (3) Respondent shall not consume alcohol, 
dangerous drugs, or controlled substances unless prescribed by another 
physician for a legitimate and therapeutic purpose; (4) Respondent 
shall submit to random drug and alcohol testing at the request of the 
authorized representative of the Board and at the request of any of the 
physicians required and authorized to authorized to evaluate or treat 
Respondent pursuant to the terms of the Order; (5) Respondent shall 
submit to a Board approved psychiatrist for monthly counseling and 
evaluation of her lithium level; (6) Respondent shall participate in an 
ongoing substance abuse program approved by the Board at least three 
times a week, and shall provide written reports to the Board 
documenting the number and locations of the meetings attended; (7) 
Respondent shall participate in physician health and rehabilitation 
society meetings and make written reports documenting the Respondent's 
attendance and participation; (8) Respondent shall complete at least 50 
hours per year of continuing AMA approved medical education; (9) 
Respondent must keep a log book available for inspection at all times 
of all prescriptions of controlled substances or dangerous drugs with 
potential for abuse; (10) Respondent's medical practice must be 
monitored by at least one or more physicians approved by the Board and 
practicing in Texas; (11) Respondent must not treat or otherwise serve 
as physician for her immediate family; (12) Respondent shall not 
unilaterally withdraw from any evaluation, treatment, or medical care 
required by the Order, upon penalty of the suspension of her medical 
license; (13) Respondent shall provide written reports regarding any 
aspect of Respondent's mental or physical condition and compliance with 
the terms of the Order upon the request of the Board or Board Staff; 
(14) Respondent may not possess alcohol, controlled substances, or 
dangerous drugs with potential for abuse, except as authorized by the 
Order; and (15) Respondent must cooperate with all requests by the 
Board and Board Staff to monitor her compliance with this Agreed Order.
    On October 20, 1997, the Court issued an order consenting to 
Respondent's ``accepting employment as a physician with SHRET, and 
practicing medicine with that organization in accordance with the 
Agreed Order, dated August 9, 1997, issued by the Texas State Board of 
Medical Examiners.'' Respondent has been employed by SHRET since July 
or August of 1997 as a consultant, and since November of 1997 as a 
physician. She has not maintained nor dispensed

[[Page 75971]]

controlled substances since her employment with SHRET.
    Pursuant to 21 U.S.C. 824(a), the Deputy Administrator may revoke a 
DEA Certificate of Registration as a practitioner if the registrant has 
been convicted of a felony inter alia under any law of the United 
States, relating to controlled substances; or if the continuance of 
such a registration would be inconsistent with the public interest. 
Pursuant to 21 U.S.C. 823(f) and 824(a)(4) and subdelegations of 
authority thereunder, (28 CFR 0.100(b) and 0.104 (1998)), the Deputy 
Administrator may deny pending applications for renewal or modification 
of this registration as a practitioner if the issuance of such 
application would be inconsistent with the public interest. Section 
823(f) requires that the following factors be considered in evaluating 
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; and 
(5) Such other conduct which may threaten the public health and 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 be 
denied. See Henry J. Schwarz, Jr., MD., 54 FR 16,422 (1989).
    It is undisputed that Respondent in this case has been convicted of 
a felony within the meaning of 21 U.S.C. 824(a)(2). Her June 9, 1997, 
plea of guilty to count eight of the indictment for violating 21 U.S.C. 
843(a)(3) resulted in a sentence of three years probation with standard 
and additional conditions. Respondent's DEA Certificate of Registration 
may be revoked upon this basis alone. See George Forest Landman, D.O., 
52 FR 1,258 (1987); Fairbanks T. Chua, M.D., 51 FR 41,676 (1986). The 
statute is discretionary, however, and the relevant language states ``A 
registration pursuant to section 823 of this title * * * may be 
suspended or revoked by the Attorney Generla upon a finding that the 
registrant--* * * (2) has been convicted of a felony under this 
subchapter * * * '' (Emphasis added). In this case, the Deputy 
Administrator finds that the public interest is best served by 
continuing Respondent's registration, as set forth below.
    Regarding factor one of the public interest analysis pursuant to 21 
U.S.C. 823(f) and 824(a)(4), the Deputy Administrator finds that it is 
undisputed that Respondent's license to practice medicine in the State 
of Texas was revoked, and the revocation probated for ten years subject 
to the Agreed Order dated August 9, 1997. The Texas Board placed no 
restrictions on Respondent's authority to prescribe, administer, or 
dispense controlled substances, except that she keep a log of such 
prescriptions available for inspection at all times, and that she only 
possess such substances as permitted by the Agreed Order. Thus, 
Respondent is authorized to practice medicine and handle controlled 
substances in the State of Texas, pursuant to the Agreed Order. While 
21 U.S.C. 824(a)(3) requires a registrant to have a valid State license 
or registration, this is not the only requirement for DEA registration, 
and therefore is not determinative.
    Regarding factor two, Respondent has been employed as both a 
pharmacist and a physician during her career. While Judge Randall found 
that Respondent demonstrated a knowledge and understanding of 
applicable State and federal laws and regulations concerning the 
handling of controlled substances, the Government accurately points out 
in its Exceptions that Judge Randall failed to take note of her finding 
that Respondent failed to understand that DEA regulation required 
Respondent to notify DEA of Respondent's new registered address, even 
though Respondent neither dispensed nor maintained controlled 
substances at that place of business. It is undisputed that Respondent 
failed to formally notify DEA of the change of her registered address 
after she began employment with SHRET. This oversight, however, while 
cause for some concern, is also not dispositive.
    Regarding factor three, it is undisputed that Respondent pled 
guilty to one count of knowingly and intentionally obtaining and 
acquiring injectable Demerol, a Schedule II narcotic substance, by 
misrepresentation, fraud, forgery, deception, and subterfuge. This 
conviction resulted from Respondent's actions on June 26, 1995, when 
she wrote a prescription for Demerol for J.T., and administered the 
Demerol to herself while at work. Judge Randall credited the testimony 
of Respondent and her treating psychiatrist in finding that 
Respondent's drug use was caused by her various medical and emotional 
diagnoses, and especially her previously undiagnosed Bipolar Disorder. 
The Deputy Administrator finds the record contains no evidence that 
Respondent's illegal actions harmed anyone other than herself. In 
addition, there appears to be no evidence in the record that 
Respondent's patients failed to receive needed medications. On the 
other hand, there is significant evidence in the record that Respondent 
is successfully recovering from her drug abuse, and she has effective 
professional and personal support networks in place to ensure against 
further relapse. It is undisputed that Respondent has not improperly 
used controlled substances since at least May of 1996.
    Regarding factor four, Respondent admitted to diverting controlled 
substances on at least two or three occasions, between February 15, 
1995, and June 26, 1995. This is in addition to the specific instance 
forming the basis of her conviction. Respondent alleges that she cannot 
remember exactly how many times she diverted controlled substances to 
her own use, nor from whose prescriptions the controlled substances 
were diverted. The Deputy Administrator shares Judge Randall's concern 
with regard to respondent's diversion history. While the record is not 
clear regarding the number of occasions the Respondent diverted, nor 
the quantity of controlled substances she diverted, the Deputy 
Administrator finds that there is sufficient evidence in the record to 
believe that Respondent's estimates regarding her diversion history 
substantially minimize the extent of her illegal activity. Judge 
Randall twice noted in her Recommended Rulings that Respondent's 
attitude at the hearing showed an attempt to minimize her illegal 
actions. Not only did Respondent studiously avoid admitting that she 
diverted the very Demerol upon which her criminal conviction was based, 
she further alleged that she could not remember any specific instances 
of diversion whatsoever. In addition, Judge Randall credited the 
Government's showing that Respondent's claims of an ongoing patient-
physician relationship with J.T. were false, and that the Respondent 
was using J.T.'s name merely to obtain Demerol and to conceal her own 
illicit use. Judge Randall found, and the Deputy Administrator concurs, 
that absent the evidence of Respondent's strong efforts to rehabilitate 
herself, her continual minimizations of her criminal actions and 
significant breaches of professional judgment would weigh heavily 
against her retention of a DEA Certificate of

[[Page 75972]]

Registration. It is undisputed, however, that Respondent is in 
compliance with the terms of her Federal probation, and also with the 
terms of the Agreed Order.
    Finally, with regard to the fifth factor, there is no question that 
Respondent abused controlled substances while performing her duties as 
a physician. Also troubling is Respondent's false physician-patient 
relationship with J.T., which Respondent continued to refuse to 
acknowledge as a subterfuge to supply Respondent's own drug addition. 
Fortunately for Respondent's patients, and for Respondent herself, 
there is no evidence that Respondent's illicit drug abuse harmed any 
others than herself, and further, there is no evidence that 
Respondent's patients failed to receive needed medications. Without the 
strong and extensive controls set in place by the Agreed Order, and 
without the strong evidence of Respondent's sincere efforts to 
rehabilitate herself, her retention of a DEA Certificate of 
Registration would not be in accord with the public interest.
    The Deputy Administrator agrees with Judge Randall that the 
Government has met its prima facie burden in its case to revoke 
Respondent's DEA Certificate of Registration and to deny her pending 
application for renewal. As Judge Randall notes in her Recommended 
Rulings, however, the governing statute is discretionary. 21 U.S.C. 
823(f) states in relevant part that ``[t]he Attorney General may deny 
an application for such registration if he determines that the issuance 
of such registration would be inconsistent with the public interest.'' 
(Emphasis added). The Deputy Administrator previously has concluded 
that, in exercising his discretion in determining the appropriate 
remedy in any given case, he should consider all the facts and 
circumstances of the case. See Martha Hernandez, M.D., 62 FR 61,145 
(1997). The Deputy Administrator concurs with Judge Randall that the 
Respondent has presented sufficient evidence to alter the ultimate 
determination of her case.
    Specifically, the Deputy Administrator finds that the Texas Board's 
Agreed Order with the Respondent provides the public and Respondent 
herself with effective protection against future criminal diversion of 
controlled substances. The evidence shows that Respondent is in 
compliance with all terms of the Agreed Order. In addition, Respondent 
currently maintains a lifestyle that will help to prevent a relapse of 
the substance abuse problems she experienced in 1995. Currently, the 
Respondent attends a substance recovery group, maintains a relationship 
with a therapist, receives lithium to control the effects of her 
Bipolar Disorder, submits to regular drug testing, and has developed 
strong familial and religious associations.
    Another significant factor influencing the Deputy Administrator's 
decision in this case is that Respondent's current professional 
position at SHRET is devoted to serving the public interest. The Deputy 
Administrator finds that the public interest is best served in this 
case by continuing Respondent's registration, with appropriate 
restrictions, as set forth below. Through SHRET, Respondent provides 
critical services to a medically under-served community. Respondent 
also is committed to performing training and continuing education to 
other health professionals, including physicians, regarding AIDS and 
HIV issues, over a large geographic area. At least some of this 
training is performed during her personal time, and not during her 
regular work hours. Respondent additionally has been approved by the 
FDA to administer Phase III clinical trials of experimental AIDS drugs, 
and thereafter to monitor the results. As of the date Respondent's 
testimony in the present hearing, she had administered six trials in 
the previous 18 month period. Respondent and her co-workers all 
credibly testified that her work at SHRET gives Respondent great 
professional satisfaction. Additionally, Respondent's quality of work 
at SHRET was credibly characterized by co-workers as ``excellent'' and 
``exceptional.'' Respondent is also the medical director at Well 
Spring, a recovery center designed to assist individuals who are 
suffering from HIV and who are also substance abusers. The 60 to 90 day 
program is designed to teach participants alternative methods of pain 
and stress management, including massage, Acudetox, and neuro-feedback. 
Well Spring Recovery Center is the only program of its type in Texas, 
and one of only three in the United States (the other two are located 
on the East and West Coasts).
    The Deputy Administrator agrees with Judge Randall's finding that 
Respondent effectively has addressed the personal and professional 
problems that contributed to her drug abuse. While it is troubling that 
Respondent attempted to tailor her testimony to limit and minimize her 
illicit activity, the record indicates that Respondent did take 
affirmative responsibility for her misconduct. The strong and extensive 
controls set by the Texas Board's Agreed Order, combined with 
Respondent's actions clearly showing a great personal desire to 
rehabilitate herself personally and professionally, provide a 
sufficient level of protection for both Respondent and the public that 
Respondent should be allowed to maintain her DEA Registration, with 
restrictions.
    Therefore, the Deputy Administrator concludes that Respondent's DEA 
Certificate of Registration should be continued subject to the 
following restrictions for three years from the effective date of this 
final order.
    1. Respondent is to forward on a quarterly basis her prescription 
log to the DEA regional office for the entire three year period of this 
registration;
    2. Respondent is to promptly forward whatever evidence of drug 
screen results available to her to the DEA regional office for the 
entire three year period of this registration;
    3. Respondent is to promptly forward to the DEA regional office any 
changes the Texas Board of Medical Examiners may make to the terms of 
her probation;
    4. Respondent shall not prescribe, dispense, administer, or 
otherwise handle any narcotic controlled substance as defined under the 
Controlled Substances Act; this restriction shall also extend to the 
Controlled Substances Buprenorphine, Butorphanol, and Pentazocine; and
    5. Consistent with the Court's October 20, 1997 order, Respondent's 
Registration is contingent upon continuing her employment with SHRET 
for the entire three year period of the Registration. If for any reason 
Respondent terminates her employment with SHRET, Respondent shall 
promptly notify the DEA regional office in writing, setting forth the 
facts and circumstances leading to said termination of employment.
    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 28 CFR 0.100(b) and 0.104, hereby orders that the DEA 
Certificate of Registration BT3320203, submitted by Mary Thomson, M.D. 
be, and hereby is, continued, and any pending applications for renewal 
be granted, for Schedules II, III, IV, and V non-narcotics, excepting 
Butorphanol and Pentazocine, and subject to the above-described 
restrictions. This order is effective upon the issuance of the DEA 
Certificate of Registration, but no later than January 4, 2001.

    Dated: November 21, 2000.
Julio F. Mercado,
Deputy Administrator.
[FR Doc. 00-30931 Filed 12-4-00; 8:45 am]
BILLING CODE 4410-09-M