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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Odom v. State, Division of Corporations, Business & Professional Licensing (8/11/2017) sp-7187

Odom v. State, Division of Corporations, Business & Professional Licensing (8/11/2017) sp-7187

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                    

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



DAVID  M.  ODOM,  M.D.,                                      )  

                                                             )         Supreme  Court  No.  S-16151  

                               Appellant,                    )  

                                                                                                                               

                                                             )         Superior Court No. 3AN-14-08082 CI  

                    v.                                       )  

                                                             )                             

                                                                       O P I N I O N  

                                     

STATE OF ALASKA, DIVISION                                    )  

                                                         

OF CORPORATIONS, BUSINESS                                    )                                              

                                                                       No. 7187 - August 11, 2017  

                                  

& PROFESSIONAL LICENSING,                                    )  

                                                             )
  

                               Appellee.                     )
  

                                                             )
  



                                                                                                                  

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                             

                    Judicial District, Anchorage, Kevin M. Saxby, Judge.  



                                                                                                                  

                    Appearances:               Lee   Holen,   Anchorage,   for   Appellant.  

                                                                                                           

                    Robert C. Auth, Assistant Attorney General, Anchorage, and  

                                                                                                

                    Jahna Lindemuth, Attorney General, Juneau, for Appellee.  



                                                                                                     

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                        

                    and Carney, Justices.  



                                          

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                                                                                                                                

                    The  state  professional  licensing  division  brought   an  accusation  of  



                                                                                                                                 

professional misconduct against a doctor, alleging that he acted incompetently when he  



                                                                                                                           

prescribed phentermine and thyroid hormone for one of his patients. The division sought  



                                                                                                                               

disciplinary sanctions against the doctor.  Following a hearing, an administrative law  


----------------------- Page 2-----------------------

judge issued a proposed decision concluding that the division had failed to show that the                                                                                                                                                            



 doctor's conduct fell below the standard of care in his field of practice and that no                                                                                                                                                               



 disciplinary sanctions were warranted.                                                                              But the Medical Board instead adopted as its                                                                                     



 decision the proposal for action submitted by the division and revoked the doctor's                                                                                                                                                 



 medical license.                                 



                                        On appeal to the superior court, the case was remanded to the Board for                                                                                                                                      



 consideration of the doctor's own late-filed proposal for action.                                                                                                                          The Board reaffirmed               



 its decision to revoke the doctor's medical license, and the superior court affirmed that                                                                                                                                                         



 decision.  



                                        The doctor appeals to this court.  Because the Medical Board's decision to  

                                                                                                                                                                                                                                                        



 revoke the doctor's medical license is not supported by substantial evidence, we reverse  

                                                                                                                                                                                                                                         



 the superior court's affirmance of that decision.  

                                                                                                                  



 II.                FACTS AND PROCEEDINGS  

                                                                

                                        David Odom is a bariatric physician1  

                                                                                                                                                                                                                                                        

                                                                                                                                                     who has been licensed to practice in  



                                                                                                                                                                                                                                 

 Alaska since 1974. His Fairbanks practice focused on anti-aging, weight loss treatment,  



                                                                                                                                                                                                                                                       

 and natural hormone replacement therapy.  He is certified by the American Board of  



                                                                                                                                                                                                                                                    

 Medical Specialties in anesthesiology and by the American Academy of Anti-Aging and  



                    1                   Bariatrics is a branch of medicine that deals with the causes, prevention,                                                                                                          



 and treatment of obesity.                                                  Bariatrics, T                            HE   SLOANE-DORLUND ANNOTATED  MEDICAL- 

     EGAL DICTIONARY (1987).  

 L                                                           



                                                                                                                           -2-                                                                                                                 7187
  


----------------------- Page 3-----------------------

                                                   2  

Regenerative Medicine,                                 and he has been admitted to practice in                                                   six  states besides   



Alaska.   The disciplinary action in this case is his first.                                               

              A.            Dr. Odom's Treatment Of S.Q.                                           3  



                                                                                                                                                                                

                            In April 2007 Dr. Odom began seeing S.Q. for weight loss treatment and  



                                                                                                                                                              

hormone evaluation.   He noted at her first appointment that she had an "irregularly  



                                                                                                                                                                

irregular" heartbeat; she reported that in 2002 she had been diagnosed with peripartum  



                                                                                                                                                                       

cardiomyopathy, though it was currently asymptomatic.  Cardiomyopathy is a disease  



                                                                                                                                                            4  

                                                                                                                                                               

of  the  heart  muscle  that  can  lead  to  sudden  cardiac  arrest  and  death;                                                                              peripartum  



                                                                                                                                                                               

cardiomyopathy by definition begins during thefinal month ofpregnancy or within a few  



                                                      5  

                                                          

months after giving birth. 



                                                                                                                                                                     

                            Dr. Odom recorded his initial impressions:  thyroid deficiency, hormone  



                                                                                                                                                                                 

imbalance, cardiomyopathy, and obesity.   S.Q. signed an informed consent form for  



                                                                                                                                                                         

weight  loss  treatment  and  another  for  hormone  supplement  therapy.                                                                                       Dr.  Odom  



                                                                                                                                                                

scheduled weekly appointments for S.Q. from April through June 2007, continuing  



                                                                                                                               

monthly into September, so he could monitor her progress.  



              2             Dr. Odom is not board-certified in bariatrics, but the Medical Board does                                                                         



not require physicians to be board-certified in the fields in which they specialize.                                                                                           See  

AlaskaStateMedicalBoard,                                   Practicing aSpecialtywithout beingBoard-Certified                                                              in that  

Specialty  (Jan. 24.2008), http://www.commerce.alaska.gov/web/portals/5/pub/MED_                                                                                                         

Guide_Speciality_Practice.pdf.  



              3             We use the patient's initials to protect her privacy.  

                                                                                                                      



              4             Cardiomyopathy, STEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                                       

                                                                   



              5  

                                                                                            

                            Cardiomyopathy, peripartum, STEDMAN'S MEDICAL DICTIONARY  (28th ed.   

2006);    see    also    Peripartum    cardiomyopathy,    AMERICAN                                                                     HEART             ASSOCIATION.  

                                                                                                                                                                                         

http://www.heart.org/HEARTORG/Conditions/More/Cardiomyopathy/  

                                                                                                                                                                                 

Peripartum-Cardiomyopathy-PPCM_UCM_476261_Article.jsp. (last updated Sept. 30,  

2016).  



                                                                                         -3-                                                                                 7187
  


----------------------- Page 4-----------------------

                          The   obesity   treatment   plan   included   a   prescription   for   phentermine,  a  



                                                                                                               6  

central nervous system stimulant that suppresses appetite.                                                                                                            

                                                                                                                  Dr. Odom also prescribed a  



                                                                                                        7                                                  8  

                                                                                                                                                                 

natural  thyroid  hormone  drug  -  Armour  Thyroid                                                         -  for  hypothyroidism.                               He  



                                                                                                                                                                    

instructed S.Q. to start the thyroid drug at a dose of 120 milligrams daily, increasing to  



                                                                                                                                                             

 180 milligrams after two weeks and 240 milligrams after four weeks; after that she could  



                                                                                                   

adjust the dosage herself based on her symptoms.  



                                                                                                                                                                  

                          At S.Q.'s September 14, 2007 visit - her last to Dr. Odom's clinic - she  



                                                                                                                                                     

was found to have lost 33 pounds, dropping below the weight considered clinically  



                                                                                                                                                                     

obese.           She  reported,  however,  that  she  had  experienced  jitteriness  while  taking  a  



                                                                                                                                                   

240 milligramdose of Armour Thyroid, so Dr. Odomreduced the dose to 180 milligrams  



                                                                                                                                                                 

a day.  S.Q. appears to have stopped taking both medications soon afterward; she last  



                                                                                                                                                                 

filled her phentermine and Armour Thyroid prescriptions on September 10, when she  



                                                                                                                                       

received a thirty day supply of each, and some pills were never used.  



                                                                                                                                                                 

                          A month later S.Q. visited her cardiologist, who reported that she "has had  



                                                                                                                                                                          

a remarkable year and with careful adjustment of her diet, successfully lost 30 pounds."  



                                                                                                                                                                    

In early 2008, according to her husband, she "looked better and happier than she had in  



             6            Phentermine    was    once    commonly   prescribed    in    combination    with  



fenfluramine as an appetite suppressant called fen-phen; fen-phen was withdrawn from                                                                           

the market following reports that connected its use with certain types of heart disease.   

See In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab. Litig.                                                                                    ,  

582 F.3d 524, 529 (3d Cir. 2009).                                   Phentermine remains an FDA-approved drug.                                                  



             7            Armour  Thyroid  contains  two  thyroid  hormones,  levothyroxine  and  

                                                                                                                                                               

liothyronine, as well as several inactive ingredients.  

                                                                              



             8            Hypothyroidism  is  the  "[d]iminished  production  of  thyroid  hormone,  

                                                                                                                                                    

leading to clinicalmanifestations ofthyroid insufficiency." Hypothyroidism, STEDMAN'S  

                                                                                                                                                  

MEDICAL  DICTIONARY  (28th ed. 2006).                           



                                                                                 -4-                                                                          7187
  


----------------------- Page 5-----------------------

a long time."                      But on March 6, 2008, about six months after she had stopped seeing                                                                                          



Dr. Odom, she suffered cardiac failure and died.                                                                      



                B.              The Licensing Division's Investigation                           



                                In 2009 S.Q.'s husband filed a complaint with the State of Alaska Division                                                                                 



of   Corporations,   Business,   and   Professional   Licensing,   suggesting   a   link   between  



Dr. Odom's treatment of S.Q. and her death. The Division launched an investigation and                                                                                                                  



sent    S.Q.'s    medical    records    to    Dr.    Patrick    Nolan    for    review.      Dr.    Nolan,    an  

endocrinologist,9                                                                                                                                                         

                                          concluded that it was inappropriate for Dr. Odom to have prescribed  



                                                                                                                                                                                                  

phentermine given S.Q.'s cardiomyopathy; that Dr. Odom had prescribed "too much  



                                                                                                                                                                                          

thyroid" hormone; and that Dr. Odom had inappropriately prescribed thyroid hormone  



                                                                                                                                                                                                      

"for  weight  loss."                              Dr.  Nolan  also  opined  that  the  "excess  thyroid  [hormone]  and  



                                                                                                                   

phentermine could have contributed to [S.Q.'s] death."  



                                                                                                                                                                                                   

                                Dr. Odom challenged these conclusions, asserting that Dr. Nolan, as an  



                                                                                                                                                                                         

endocrinologist,  had  a  starkly  different  view  of  weight  loss  and  natural  hormone  



                                                                                                                                                                                            

replacement therapy than doctors who, like Dr. Odom, practice anti-aging and bariatric  



                                                                                                                                                                                

medicine.                     Dr.  Nolan  responded  by  declaring  Dr.  Odom's  practice  "dangerous"  



                                                                                                                                                                                                          

and "clearly . . . a threat to the public's well being," though his explanation was terse; he  



                                                                                                                                                                                                           

said in his supplemental report, "I simply refuse to argue with [Dr. Odom's approach to  



                                                                                                                                                                                                        

treatment] as clearly the evidence is in favor of modern endocrinology and against Dr.  



                     

Odom."  



                                                                                                                                                                                                       

                                In April 2012 the Division filed an accusation alleging that Dr. Odom had  



                                                                                                                                                                                                

provided substandard care by failing "to conduct an adequate examination of S.Q.,"  



                9               Endocrinology is the "science and medical specialty concerned with the                                                                                                  



internal   or   hormonal   secretions   and   their   physiologic   and   pathologic   relations."   

Endocrinology, S                          TEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                           



                                                                                                     -5-                                                                                            7187
  


----------------------- Page 6-----------------------

prescribing "phentermine to a patient with an established diagnosis of cardiomyopathy,"                                                                                                                 



and prescribing "excess thyroid hormone" in combination with phentermine "for weight                                                                                                                                                     



loss."   The Division did                                             not  contend that Dr. Odom's treatment caused S.Q.'s death; in                                                                                                                  



this appeal the Division, through its attorney at oral argument, agreed "absolutely" that                                                                                                                                                        



                                                                                             10  

there was no causal connection.                                                                    



                                                                                                      

                    C.                 The Administrative Proceedings  



                                                                                                                                                                                                                                                  

                                       An administrative law judge (ALJ) held an evidentiary hearing on the  



                                                                                                                                                                                                                                  

Division's accusation over four days in October and November 2012.  The Division  



                                                                                                                                                                                                                                                 

presented the testimony of S.Q.'s husband, her mother, the Division investigator, and  



                                                                                                                                                                                                                                                

Dr. Nolan, who testified as an expert.  Dr. Odom testified on his own behalf and also  



                                                                                                                                                                                                                                              

presented the expert testimony of Dr. David Bryman, a bariatric physician, and Dr. Neal  



                                                                                                                                                                                               

Rouzier, an emergency medicine, family practice, and anti-aging physician.  



                                                                                                                                                                                                                                                   

                                       The ALJ issued a proposed decision in April 2014.  He concluded that the  



                                                                                                                                                                                                                           

Division had failed to prove "that Dr. Odom's examination was below the standard of  



                                                                                                                                                                                                                                   

care"; had failed to prove "that to prescribe phentermine to S.Q. was below the standard  



                                                                                                                                                                                                                                      

of care"; and had failed to prove "that Dr. Odom prescribed thyroid hormone as a weight  



                                                                                                                                                                                                                                                  

loss treatment, or that the dosages he prescribed were excessive and fell below the  



                                                                                                                                                                                                                                               

standard  of care."                                         The ALJ  therefore concluded  that no disciplinary  sanction  was  



                                 

warranted.  



                    10                 According to the administrative law judge, "[t]estimony at the hearing                                                                                                                        



established that the medication prescribed by Dr. Odom would have long since been                                                                                                                                                            

eliminated from [S.Q.'s] system, and she had been treated by her cardiologist on several                                                                                                                                               

occasions since her last visit to Dr. Odom some six months before her death." The Board                                                                                                                                                   

did not modify this finding, and the Division does not challenge it.                                                                                                                        



                                                                                                                          -6-                                                                                                                7187
  


----------------------- Page 7-----------------------

              D.            The Parties' Proposals For Action And The Medical Board's Decision                                                                   

                                                                                                  11  the Division submitted a proposal for  

                            As permitted by AS 44.64.060(e),                                                                                                                 



action in May 2014 that disputed the ALJ's findings and recommended that the Medical  

                                                                                                                                                                   



Board impose disciplinary sanctions. The Division argued that Dr. Odom's practice fell  

                                                                                                                                                                             



below  the  standard  of  care  when  he  prescribed  phentermine  to  a  patient  with  

                                                                                                                                                                         



cardiomyopathy  and  when  he prescribed "four  times the recommended  dosage" of  

                                                                                                                                                                              



thyroid hormone to S.Q. for "supposed hypothyroidism, when her thyroid levels were  

                                                                                                                       



in fact normal." The Division asserted that its proposed conclusions, though contrary to  

                                                                                                                                                                                



those of the ALJ, could be reached "based on the evidence contained in the [ALJ's]  

                                                                                                                                                                   



proposed  decision  (including  the  product  literature),  and  the  Board's  own  medical  

                                                                                                                                                                  



expertise."  

                         



                            The Medical Board was scheduled to meet to decide Dr. Odom's case in  

                                                                                                                                                                               



June 2014, and it received the ALJ's proposed decision and the Division's proposal for  

                                                                                                                                                                              



action beforehand.  A problem with the mail prevented Dr. Odom from filing his own  

                                                                                                                                                                          



proposal for action, and though he tardily filed an opposition to the Division's proposal,  

                                                                                                                                                                 



the Medical Board did not review it.  

                                                                             



                            At its  June meeting  the Medical Board  discussed  Dr. Odom's case in  

                                                                                                                                                                               



executive session; the members then voted unanimously, on the record, to "reject the  

                                                                                                                                                                             



              11            "[W]ithin 30 days after the proposed decision is served, a party may file                                                                        



with the agency a proposal for action . . . [recommending that the agency] do one or                                                                                           

more of the following: (1) adopt the proposed decision as the final agency decision;                                                                            

(2) return the case to the administrative law judge to take additional evidence or make  

                                                                                                                                                                 

additional findings . . . ; (3) exercise its discretion by revising the proposed . . . sanction  

                                                                                                                                                                      

. . .  and adopt the proposed decision as revised; (4) in writing, reject, modify, or amend  

                                                                                                                                                                               

a factual finding in the proposed decision . . . ; [or] (5) in writing, reject, modify, or  

                                                                                                                                                               

amend an interpretation or application in the proposed decision of a statute or regulation  

                                                                                                                                       

directly governing the agency's actions . . . ."  AS 44.64.060(e).  



                                                                                       -7-                                                                               7187
  


----------------------- Page 8-----------------------

proposed decision by the hearing officer and, instead, adopt the Division's Proposal for                                                                                                                                                                                                                                                                                                           



Action" as its final agency decision.                                                                                                                                         As a sanction, the Medical Board ordered "the                                                                                                                                                                 



revocation of Dr. David Odom's Alaska medical license."                                                                                                                                                                             



                               E.                             Dr. Odom's Appeal To The Superior Court And Remand                                                                                                                                                                                               



                                                              Dr. Odomappealed                                                                          theMedical                                             Board's decision to thesuperior                                                                                                                  court. The    



court   held   that  substantial   evidence   supported   the   Board's   factual   and   disciplinary  



 findings, but it found a violation of Dr. Odom's due process rights in the Board's failure                                                                                                                                                                                                                                                                                       



to consider his late-filed opposition to the Division's proposal for action; the superior                                                                                                                                                                                                                                                                                 



court therefore vacated the Board's decision and remanded the matter to the Board for                                                                                                                                                                                                                                                                                                              



reconsideration.    



                                                              At   a   special   meeting,   the   Medical   Board   "decided   not   to   re-open   the  



evidence in this case as is its prerogative," and it reaffirmed its decision to revoke                                                                                                                                                                                                                                                                                         



Dr. Odom's license. In November 2015 the superior court issued an order affirming the                                                                                                                                                                                                                                                                                                             



Board's decision.                                                                    



                                                              Dr. Odom appealed to this court.                                                                                                                           



III.                            STANDARDS OF REVIEW                                                                        



                                                              When a superior court acts as an intermediate court of appeals reviewing                                                                                                                                                                                                                            



an   administrative   or   agency   decision,   we   independently   review   the   merits   of   the  



                                                                                                                12                                                                                                                                                                                                                                                                 13  

administrative decision,                                                                                                                                                                                                                                                                                                                                                                   We  

                                                                                                                           giving no deference to the superior court's decision. 



                                                                                                                                                                                                                                                                                                                                                                                                  

review  the  agency's  factual  findings  to  determine  whether  they  are  supported  by  



                               12                            Jurgens v. City of North Pole                                                                                                            , 153 P.3d 321, 325 (Alaska 2007).                                                                                                  



                               13                             State, Dep't of Revenue v. Merriouns                                                                                                                                            , 894 P.2d 623, 625 (Alaska 1995)                                                                                                     



 (citing  Handley v. State, Dep't of Revenue                                                                                                                                                         , 838 P.2d 1231, 1233 (Alaska 1992)).                                                                                                          



                                                                                                                                                                                                   -8-                                                                                                                                                                                    7187
  


----------------------- Page 9-----------------------

                                      14  

substantial evidence.                     Substantial evidence is "such relevant evidence as a reasonable                                



                                                                                                   15  

mind might accept as adequate to support a conclusion."                                                                                               

                                                                                                       "The substantial evidence test  



                                                                                                                                            

is highly deferential, but we still review the entire record to ensure that the evidence  



                                                                                                                                                      

detracting  from  the  agency's  decision  is  not  dramatically  disproportionate  to  the  



                                                                                                                                           

evidence  supporting  it  such  that  we  cannot  'conscientiously'  find  the  evidence  



                                                                                     16  

                                                                                                                                            

supporting  the  decision  to  be  'substantial.'  "                                        The  substantial  evidence  standard  



                                                                                                                                                         

"reflects the prudence of deferring to a state professional board's special competence in  



                                                                                              17  

                                                                                                                                                      

recognizing  violations  of  professional  standards."                                               "But  we  will  not  uphold  the  



                                                                                                                                                  

imposition of reputationally and economically damaging professional sanctions based  



            14          Jurgens, 153 P.3d at 325 (citing                          Lindhag v. State, Dep't of Nat. Res                            ., 123   



P.3d 948, 952 (Alaska 2005);                         Fields v. Kodiak City Council                        , 628 P.2d 927, 932 (Alaska           

 1981)).  



            15          Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983) (citing Keiner  

                                                                                                                                                

v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)).  

                                                                                                        



            16          Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634  

                                                                                                                                                     

n.40 (Alaska 2011) (emphasis in original). "[A] court may [not] displace the Board's  

                                                                                                                                              

choice between two fairly conflicting views, even though the court would justifiably  

                                                                                                                                          

have made a different choice had the matter been before it de novo.   But under the  

                                                                                                                                                      

substantial evidence test, a reviewing court is not barred from setting aside a Board  

                                                                                                                                                 

decision when it cannot conscientiously find that the evidence supporting that decision  

                                                                                                                                             

is substantial, when viewed in the light that the record in its entirety furnishes, including  

                                                                                                                                           

the body of evidence opposed to the Board's view."  Id.  (quoting  Universal Camera  

                                                                                                                                             

Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488 (1951)).  

                                                                                                                   



            17          State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Corps., Bus. &  

                                                                                                                                                         

Prof'l Licensing v. Wold, 278 P.3d 266, 273 (Alaska 2012).  

                                                                                                



                                                                           -9-                                                                     7187
  


----------------------- Page 10-----------------------

on   evidence   that   would   not   permit   a   reasonable   mind   to   reach   the   conclusion   in  

question."18  



                                                                                                                                   

                      "We review questions of law, including the appropriate standard of proof,  



                                                        19  

                                                                                                                             

using our independent judgment."                            We review the agency's selection of a particular  



                                                                        20  

                                                        

disciplinary sanction for abuse of discretion. 



IV.        DISCUSSION  



                                                                                                                                

                      AlaskaStatute08.64.326(a)(8)(A)authorizestheMedicalBoardtosanction  



                                                                                                                         

a doctor if the Board finds after a hearing that the doctor "has demonstrated professional  



                         21  

                                                                                                                               

incompetence."               "Professionalincompetence"isdefinedbyregulationtomean "lacking  



                                                                                                                                   

sufficient knowledge, skills, or professional judgment in that field of practice in which  



                                                                                                                                         

the physician . . . concerned engages, to a degree likely to endanger the health of his or  



           18        Id.  (citing   Wendte v. State, Bd. of Real Estate Appraisers                                 , 70 P.3d 1089,       



 1091 (Alaska 2003)).     



           19        Jurgens, 153 P.3d at 325-26 (citing Romulus v. Anchorage Sch. Dist.,  

                                                                                                                                   

910 P.2d 610, 615 n.3, 618-19 (Alaska 1996)).  

                                                                 



           20         See AS 08.64.331(a) (identifying sanctions that the Medical Board "may"  

                                                                                                                                  

impose under various circumstances); AS 44.62.570(b) (identifying judicial inquiry on  

                                                                                                                                         

appeal as limited to the questions of jurisdiction, "whether there was a fair hearing," and  

                                                                                                                                              

"whether there was a prejudicial abuse of discretion"); see also, e.g., Colo. Real Estate  

                                                                                                                                   

Comm'n v. Hanegan, 947 P.2d 933, 936 (Colo. 1997) (en banc) ("The imposition of  

                                                                                                                                         

sanctions is a discretionary function which, if within the statutory authority of an agency,  

                                                                                                                                

must not be overturned unless that discretion is abused."); Wasfi v. Dep't of Pub. Health,  

                                                                                                                                 

761 A.2d 257, 267 (Conn. App. 2000) ("If the penalty meted out is within the limits  

                                                                                                                                   

prescribed by law, the matter lies within the exercise of the [agency's] discretion and  

                                                                                                                                       

cannot be successfully challenged unless the discretion has been abused." (alteration in  

                                                                                                                                         

original) (quoting  Gibson v. Conn. Med. Examining Bd., 104 A.2d 890, 895 (Conn.  

                                                                                                                                 

1954))).  



           21         See also AS 08.64.101(3).  

                                           



                                                                   -10-                                                             7187
  


----------------------- Page 11-----------------------

                       22  

her patients."              Sanctions for professional incompetence may range from a letter of                                               



                                                                                                              23  

reprimand or required education to revocation of a medical license.                                                                  

                                                                                                                   Given the serious  



                                                                                                                                

nature of the deprivation, the decision to revoke a medical license should be supported  



                                                         24  

                                                                                                                                    

by clear and convincing evidence.                             We agree with the Washington Supreme Court's  



                                                                                                                                           

observation that "an elevated standard of proof militates against the possibility that the  



                                                                                                                                   

fact finder might deprive an individual of his license based solely on a few isolated  



                                                   25  

                                    

incidents of unusual conduct." 



                                                                                                                                     

                      Dr. Odom challenges the Medical Board's decision to revoke his license  



                                                                                                                                          

as lacking substantial evidence in support of it.  His argument targets the Board's two  



                                                                                                                                             

underlying findings: (1) that prescribing phentermine to S.Q. was below the standard of  



                                                                             

care because of her cardiomyopathy, and (2) that prescribing thyroid hormone to S.Q.  



                                                                                                                                              

was below the standard of care because the dosage prescribed was excessive and it  



                                                                                                                                    

should not have been given in combination with phentermine. We agree that the Board's  



                                                                  

decision lacks sufficient support in the evidence.  



           22          12  Alaska  Administrative  Code  (AAC)  40.970  (2017).  



           23         AS  08.64.331(a).  



           24         See  Storrs v. State Med. Bd., 664 P.2d 547, 555 (Alaska 1983) (adopting  



                                                                                                                           

superior  court  decision  that  affirmed  Medical  Board's  findings  of  professional  

                           

                                                                                                                                          

incompetence under a clear and convincing standard); In re Hanson, 532 P.2d 303, 308  

                                                                                                                                     

(Alaska 1975) ("[T]he serious nature of the proceeding in depriving one of a public  

                                                                                                                              

[judicial] office . . . ought, at the very least, to require proof by clear and convincing  

                                                                                                                                        

evidence." (alterations in original) (quoting In re Laughlin, 265 S.W.2d 805, 809 (Tex.  

 1954))).  



           25         Nguyen v. State, Dep't of Health Med. Quality Assurance Comm'n, 29 P.3d  

                                                                                                                                         

689, 696 (Wash. 2001) (citing Addington v. Texas , 441 U.S. 418, 427 (1979); Santosky  

                                                                                                                                  

v. Kramer, 455 U.S. 745, 764 (1982)).  

                                                   



                                                                     -11-                                                              7187
  


----------------------- Page 12-----------------------

                          A.                       The Medical Board's Decision Does Not Support License Revocation.                                                                                                                                                                    



                                                   We begin by explaining why the Medical Board's decisional document                                                                                                                                                                             



 does not support its conclusion regardless of how we view the evidence of Dr. Odom's                                                                                                                                                                                                                    



treatment of S.Q.                                                        We note parenthetically that the Medical Board's adoption of the                                                                                                                                                                                   



Division's   proposal   as   its   final   decision   was   clearly   not   what   the   Division  had  



 anticipated; the Division had proposed that the Board amend the ALJ's decision in some                                                                                                                                                                                                                             



particulars, and the only sanctions it discussed were a license suspension or alternatively                                                                                                                                                                                              



 "a fine, reprimand, probation, education, and permanent restriction on respondent's                                                                                                                                                                                                  



practice, including a prohibition against prescribing phentermine and thyroid hormone                                                                                                                                                                                                                 



to patients."                                    



                                                   The Board's procedure was also irregular. The law requires that the Board                                                                                                                                                                                     



 support the revocation of a medical license with a written decision and "a brief and                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                 26  

 concise statement of the grounds and reasons for the action."                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                          The decisional document  



                                                                                                                                                                                                                                                                                                         

 of any administrative body, "done carefully and in good faith, serves several salutary  



                                                                                                                                                                                                                                                                                                                 

purposes," such as "facilitat[ing] judicial review by demonstrating those factors which  



                                                                                                                                                                                                                                                                              

were  considered"  and  "tend[ing]  to  ensure  careful  and  reasoned  administrative  



                                                    27  

 deliberation."                                                                                                                                                                                                                                                                                                     

                                                               An ALJ's proposed decision is usually in a form that will serve these  



                                                                                                                                                  28  

                                                                                                                                                                                                                                                                                                                                  

purposes, if it is adopted by the Board.                                                                                                                    And AS 44.64.060(e) sets out other options if  



                          26                       AS 08.64.340;                                           see also Peninsula Mktg. Ass'n v. State                                                                                                             , 817 P.2d 917, 922                                        



 (Alaska   1991)   (observing   that   "agency   decisions,   in   exercise   of   their   adjudicative  

powers, must be accompanied by written findings and a decisional document" (quoting                                                                                                                                                                                                                     

Messerli v. Dep't of Nat. Res., State of Alaska                                                                                                                                , 768 P.2d 1112, 1118 (Alaska 1989))).                                                                               



                          27                       Se. Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 549 (Alaska  

                                                                                                                                                                                                                                                                                                          

 1983), superseded by statute on other grounds, Ch. 86,  1, SLA 2009.  

                                                                                                                                                                                                                                                                                  



                          28                       See, e.g., In re Bartling, OAH No. 12-0221-MED at 13 (July 19, 2013)  

                                                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                                             -12-                                                                                                                                                     7187
  


----------------------- Page 13-----------------------

the Board declines to adopt the ALJ's proposed decision, including returning the case                                                                                       



to the ALJ for further proceedings, changing the ALJ's recommended disposition, and                                                                                           



rejecting,modifying, or amending                                       theALJ's             factual findings ("by                     specifying theaffected         



finding and identifying the testimony and other evidence relied on by the agency for the                                                                                       



                                                                                                                     29  

rejection, modification, or amendment of the finding").                                                                                                                  

                                                                                                                           The Medical Board's "non- 



                                                                                                                                                                         

adoption options"do not expressly contemplateacceptingoneparty'sproposal for action  



                                                                                                                                                                               

as the Board's decision, as the Board did here; that may work sometimes, but on the  



                                                                                                                                                                  

other hand the proposal for action may well be, as it was here, a piece of party advocacy  



                                                                                                                                                                     

rather than an ostensibly impartial decisional document that clearly sets out the Board's  



                                                                                               

rationale and helps facilitate judicial review.  



                                                                                                                                                                              

                            The document that became the Board's final decision in this matter thus  



                                                                                                                                                                                  

contains no findings of its own but asserts that its conclusion can be reached "based on  



                                                                                                                                                                  

theevidencecontained in the[ALJ's]proposeddecision(includingtheproduct literature),  



                                                                                                                                                 

and  the  Board's  own  medical  expertise."                                                  But  the  document  also  suggests  specific  



                                                                                                                                                                                

amendments to the ALJ's decision and invites the Board to enlist the assistance of the  



                                                                                                                                                                              

attorney general's office in making revisions. While a member of the public who has both  



                                                                                                                                                                           

the Division's proposal for action and the ALJ's recommended decision in hand could  



                                                                                                                                                                   

thus - perhaps - stitch together a single decisional document with a coherent narrative,  



              28(...continued)  



                                                                                                                                                                          

(adopting proposed decision); In re Ilardi, OAH No. 10-0114-MED at 10 (Oct. 28, 2010)  

                  

(same).  



              29            The Medical Board could also prepare its own decision, as in In re Emery,  

                                                                                                                                                                       

OAH No. 07-0169-MED (Jan. 30, 2009).  See also State, Div. of Corps., Bus. & Prof'l  

                                                                                                                                                                         

Licensing, Alaska Bd. of Nursing v. Platt, 169 P.3d 595, 598 (Alaska 2007) (reviewing  

                                                                                                                                                               

Board of Nursing decision adopting hearing officer's findings of fact and conclusions  

                                                                                                                                                            

of law but adding its own different analysis).  

                                                                           



                                                                                       -13-                                                                               7187
  


----------------------- Page 14-----------------------

it is not at all clear that the document's factual findings would lead to its conclusion. And                                                                                                                                                                                                                      



the Board's decision on remand, after considering Dr. Odom's late-filed proposal for                                                                                                                                                                                                                                    



action, adds no explanation other than the conclusory statement that its earlier decision,                                                                                                                                                                                                        



as embodied in the Division's proposal for action, was supported by substantial evidence.                                                                                                                                                                                                                                               



                                                  Most importantly, the document that became the Board's final decision                                                                                                                                                                            



expressly states that "[i]mposing                                                                                       a suspension                                    on Dr. Odom's license                                                              would be                           consistent  



with prior Board decisions involving inappropriate prescribing by physicians" (emphasis                                                                                                                                                                                                        



added) and supports this statement with a discussion of relevant legal authorities.                                                                                                                                                                                                                               The  



Board,   however,   revoked   Dr.   Odom's   license   instead,   based   not   on   any   written  



explanation   but   presumably   on   its   discussion   in   executive   session.     By   statute,   the  



Medical Board must be "consistent in the application of disciplinary sanctions," and "[a]                                                                                                                                                                                                                             



significant departure from earlier decisions of the board involving similar situations must                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                            30  

be   explained  in  findings   of   fact   or   orders   made   by   the   board."                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                           In  professional  



                                                                                                                                                                                                                                                                                      

incompetence cases, the Medical Board has generally "directed its efforts to imposing  



                                                                                                                                                                                                                                                                                                

appropriate limits  on  [the  doctor's] practice or  to  seeking  to upgrade [the doctor's]  



                                                     31  

performance."                                                                                                                                                                                                                                                                                                           

                                                               This approach is reflected in the Division's proposal in this case that the  



                                                                                                                                                                                                                                                                                                          

Board,  to  be  consistent  with  its  precedent,  impose  a  suspension  or  consider  lighter  



                                                                                              

sanctions as alternatives.  



                                                                                                                                                                                                                                                                                                                            

                                                  License revocations, in contrast, are more likely to follow revocations in  



                                                                                                                                                                                                                                                                                                                     

other  states  or  convictions  for  crimes  such  as  fraud,  felony  drug  offenses,  or  sex  



                         30                       AS 08.64.331(f).   



                         31                      In re Kohler                                 , OAH No. 10-0635-MED at 51-52 (June 7, 2011) (identifying                                                                                                                             



the specific area in which a doctor was incompetent and restricting him from practicing  

                                                                                                                                                                                                                                                                                            

in the area of his incompetence).  

                                                                



                                                                                                                                                           -14-                                                                                                                                                7187
  


----------------------- Page 15-----------------------

             32  

offenses.           We   have   also   affirmed   a   license   revocation   based   on   "a   pattern   of  



                    33  

inadequacy,"                                                                                                                   

                       but this case involves only Dr. Odom's treatment of S.Q.; the Division did  



                                                                                                                               

not allege or pursue a claim that Dr. Odom acted incompetently in any cases besides this  



                                                                                                                               

one.  And given the Division's further concession that Dr. Odom's treatment of S.Q. had  



                                                                                                                     

no causal connection to her death, there is no reason apparent in the Board's decisional  



                                                                                                                               

document why S.Q.'s case alone would warrant a sanction that is inconsistent with the  



              

Board's precedent.  



                                                                                                                       

                    Weconcludethat theBoard's final decision fails to comply with its statutory  



                                                                                                                              

duty  to  "be  consistent  in  the  application  of  disciplinary  sanctions"  or  explain  the  



                     34  

inconsistency,                                                                                

                         and it therefore does not support the sanction imposed.  



                                                                                                                               

          B.	       The Medical Board's Conclusion That Dr. Odom's Prescription Of  

                                                                                                                                

                    Phentermine To S.Q. Was Below The Standard Of Care In His Field Of  

                                                                                        

                    Practice Is Not Supported By Substantial Evidence.  



                                                                                                                             

                    The Medical Board's decisional document is legally insufficient not only  



                                                                                                                            

with regard to its choice of sanction, but also in its conclusion that Dr. Odom acted  



                                                                                                                        

incompetently.  One of the reasons the Board gave for adopting the Division's position  



                                                                                                                               

was  that  it  was  "unprofessional,  incompetent,  and  below  the  standard  of  care  for  



                                                                                                                             

Dr. Odom to prescribe phentermine to a patient with known cardiomyopathy."   This  



          32        ALASKA   MEDICAL   BOARD,   SUMMARY   OF   BOARD   ACTIONS   -  1997   TO  



PRESENT          (Feb.       9,    2017),       https://www.commerce.alaska.gov/web/portals/5/pub/  

                                               

MED_1997_to_2017_Board_Action_Summary.pdf.  



          33        Storrs v. State Med. Bd., 664 P.2d 547, 555-56 (Alaska 1983) (finding a  

                                                                                                                                 

"pattern  of  inadequacy"  based  on  five  cases  over  five  years  in  which  a  doctor  

                                                                                                                        

demonstrated an inability to foresee common complications, obtain consultations for  

                                                                                                                              

developing   complications,   and   apply   diagnostic   and   corrective   measures   once  

                                                                                                                          

complications arose).  

                       



          34        AS 08.64.331(f).  

                           



                                                               -15-	                                                      7187
  


----------------------- Page 16-----------------------

conclusion relied primarily on the testimony of Dr. Nolan, bolstered by product literature                                                                                                                   



and a reference book. But we conclude that this evidence is far from clear and convincing                                                                                                               



and is insufficient to support the Board's finding of incompetence.                                                                                                              



                                   Dr. Nolan, the Division's only medical witness, testified that he was board                                                                                                       



                                                                                                                                35  

certified in internal medicine and endocrinology.                                                                                                                                                                

                                                                                                                                       He testified that his practice usually  



                                                                                                                                                                                                                

involves patients who have diabetes or some kind of thyroid disease; many of his diabetic  



                                                                                                                                                                                                                            

patients "have weight problems," but he does not use any drug therapy specifically for  



                                                                                                                                                                                                               

weight loss. Indeed, when asked by the Division at the outset of its investigation whether  



                                                                                                                                                                                                                     

he "perform[ed] the type of practice which is in dispute in this matter," he answered "No,"  



                                                                                                                                                                                                                           

explaining that he did not prescribe the medicines at issue. He testified at the hearing that  



                                                                                                                                                                                                        

he has not prescribed phentermine "in many years" because he found it to be ineffective  



                                                                                                                                                   

"in the long run" and because "it's very controversial."  



                                                                                                                                                                                                   

                                   Dr. Nolan nonetheless did not review any recent studies of phentermine  



                                                                                                                                                                                                              

before forming his opinions in the case and, despite his role as an expert witness, admitted  



                                                                                                                                                                                                                            

that he "ha[d]n't researched it out that carefully."  He testified that he had reviewed the  



                                                                                                                                                                                                        

"package insert"; the online entry for phentermine in the Physician's Desk Reference,  



                                                                                                                                                                        

which contains the same manufacturer-provided information as the package insert; and  



                                                                                                                                                                                                               

Lexicomp's  Drug  Information  Handbook,  which  he  described  as  a  more  reliable  



                                                                                                                                                                                                                           

 sourcebook  prepared  by  the  American  Pharmacists'  Association.                                                                                                                  He  described  the  



                                                                                                                                                                                                             

package insert  as contraindicating the use of phentermine for patients with "cardiac  



                  35               Dr. Nolan described internal medicine as including "a whole list of . . .                                                                                                                 



different subspecialities: pulmonary                                                           disease, cardiology,gastrointestinal,rheumatology,                                            

dermatology,endocrinology,"and hedefined                                                                             endocrinology as the"studyofendocrines,                                         

 . . . which are the ductless glands in your body:                                                                            the pituitary, the thyroid, the adrenal,   

outlet cells in the pancreas, parathyroid, things like that."                                                                                                 See also Endocrinology                                            ,  

 STEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                                     



                                                                                                             -16-                                                                                                    7187
  


----------------------- Page 17-----------------------

disease," and he testified that contraindications in package inserts are clear statements to                                                                                                                                                                                                                                                             



physicians not to prescribe a drug under the given circumstances.                                                                                                                                                                                                          He also testified that                                                 



the   Drug   Information   Handbook   contains   a   "severe   warning"   against   the   use   of  



"stimulants . . . in patients with . . . cardiomyopathy."                                                                                                                                                             Dr. Nolan admitted, however, that                                                                                           



"the package insert [for a drug] may or may not be totally reliable" and that a physician                                                                                                                                                                                                                             



 should not rely solely upon the                                                                                            Drug Information Handbook                                                                                              either.   But he also testified                                               



that he had asked seven cardiologists whether they would "consider using phentermine                                                                                                                                                                                                                          



in a patient with known cardiomyopathy," and they all answered, "Absolutely not."                                                                                                                                                                                                                                                                  He  



concluded that Dr. Odom should not have prescribed phentermine to treat S.Q.'s obesity                                                                                                                                                                                                                                              



because of her history of cardiomyopathy, and that doing so was below the standard of   



care.   



                                                      The manufacturer's literature for phentermine clearly states that the drug is                                                                                                                                                                                                                        



contraindicated for patients with cardiovascular disease, though whether that includes                                                                                                                                                                                                                                        



 S.Q.'s asymptomatic peripartum cardiomyopathy is a debatable issue, one that the ALJ                                                                                                                                                                                                                                                           



                                                                                                             36  

noted   but   did   not   decide.                                                                                                                                                                                                                                                                                                                 

                                                                                                                            The  Division  argued  for  a  broad  interpretation  of  the  



                                                                                                                                                                                                                                                                                                                    

contraindications and warnings as applying to all kinds of heart diseases and conditions,  



                                                                                                                                                                                                                                                                                                                                             

and the Board ostensibly adopted that interpretation. But we need not consider this issue  



                                                                                                                                                                                                                                                                                               

ourselves; regardless of whether phentermine's manufacturer intended cardiomyopathy  



                                                                                                                                                                                                                                                                                                                                                           

to be among the listed contraindications, the evidence disproportionately supports a  



                                                                                                                                                                                                                                                                                                                                                 

conclusion that the contraindications do not establish a relevant standard of care, and  



                           36                         Dr. Nolan                                testifiedthat                                     cardiomyopathy isaformofcardiovascular disease.                                                                                                                                                                



Both of Dr. Odom's experts testified that S.Q.'s condition, peripartum cardiomyopathy,                                                                                                                                                                                                    

is   a   disease   of   the   heart   muscle   rather   than   the   vascular  system,   is   thus   not   a  

cardiovascular disease, and is not among phentermine's listed contraindications.                                                                                                                                                                                                                                                       



                                                                                                                                                                         -17-                                                                                                                                                             7187
  


----------------------- Page 18-----------------------

 furthermore that Dr. Odom's prescription of phentermine to S.Q. was within the standard                                                                                                                                                                                                                                                                  



 of care for physicians who practice in his field.                                                                                                                                     



                                                           Dr. Bryman, one of Dr. Odom's expert witnesses, is a physician licensed in                                                                                                                                                                                                                                                  



Alaska and several other states who practices primarily in bariatrics.  He has served on  



the American Board of Bariatric Medicine and is active in the American Society of                                                                                                                                                                                                                                                                                                   



Bariatric Physicians.                                                                         He testified that he is "very familiar" with phentermine; he has                                                                                                                                                                                                                 



prescribed it in his practice for over 20 years, has lectured on the drug, and has defended                                                                                                                                                                                                                                                            



 other physicians' use of the drug.                                                                                                                        As the ALJ summarized Dr. Bryman's testimony,                                                                                                                                       



 "phentermine is routinely prescribed for anorectic [appetite-suppressant] purposes by                                                                                                                                                                                                                                                                                            



bariatric physicians nationwide."                                                                                                                   



                                                           Dr. Bryman also addressed phentermine's contraindications.  He strongly  



 supported  Dr.   Odom's   view   that   contraindications   on   drug   labels   generally   are   not  



                                                                                                                                                                                                                                                                                          37  

binding on physicians and do not establish a standard of care,                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                     and that the product  



                                                                                                                                                                                                                                                                                                                                                                               

 literatureon phentermineinparticular was outdatedand misleading.  Whiledisputing that  



                                                                                                                                                                                                                                                                                                                                                                              

 cardiomyopathy is a cardiovascular disease, he discussed several studies indicating that  



                                                                                                                                                                                                                                                                                                                                                                     

phentermine did not cause the adverse cardiovascular effects the product literature warns  



                                                                                                                                                                                                                                                                                                                                                                               

 about. Both Dr. Bryman and Dr. Rouzier, Dr. Odom's other expert witness, testified that  



                                                                                                                                                                                                                                                                                                                                                                          

phentermine'scontraindications and warnings regardingits usewithcardiacpatients were  



                              37                           The ALJ cited several federal cases in support of this proposition.                                                                                                                                                                                                                                         See  



Planned Parenthood Sw. Ohio Region v. Dewine                                                                                                                                                                         , 696 F.3d 490, 496 n.4 (6th Cir. 2012)                                                                                                      

 ("The FDA regulates the marketing and distribution of drugs by manufacturers, not the                                                                                                                                                                                                                                                                                        

practices of physicians in treating patients.");                                                                                                                                                               Weaver v. Reagan                                                                    , 886 F.2d 194, 198                                                   

 (8th Cir. 1989) ("FDA approved indications were not intended to limit or interfere with                                                                                                                                                                                                                                                                                

the practice of medicine nor to preclude physicians from using their best judgment in the                                                                                                                                                                                                                                                                                     

 interest of the patient.");                                                                                      id.   ("Once a product has been                                                                                                                 approved   for   marketing,   a  

physician may prescribe it for uses or in treatment regimens or patient populations that                                                                                                                                                                                                                                                                                   

 are not included in approved labeling." (quoting 12 FDA D                                                                                                                                                                                                                      RUG   BULLETIN   1, at 4-5                                                                 

 (1982), http://www.circare.org/fda/fdadrugbulletin_041982.pdf)).                                                                                                                                                                                                                                   



                                                                                                                                                                                       -18-                                                                                                                                                                           7187
  


----------------------- Page 19-----------------------

based on 50-year-old research on amphetamines, a chemically related but fundamentally  

                                                                                                                



different compound with much different effects, and that thedrug's literaturehadnot been  

                                                                                                                               



updated despite new studies showing that "phentermine does not have any of those  

                                                                                                                             



properties that . . . amphetamines [have]." Dr. Bryman testified that the FDA had recently  

                                                                                                                          



approved a new drug containing phentermine based on studies that showed no adverse  

                                                                                                                          



cardiovascular effects at all.  He testified that about 30% of his own patients had some  

                                                                                                                              



form  of  heart  disease  and  were  referred  to  him  by  their  cardiologists,  and  that  he  

                                                                                                                                 



prescribed phentermine to patients with cardiomyopathy.  

                                                                                          



                    Dr. Bryman noted that S.Q.'s medical records showed no increase in her  

                                                                                                                                 



heart rate or blood pressure while she was on phentermine, and that in fact, because of her  

                                                                                                                                 



obesity and cardiomyopathy, she was "a perfect patient for" the drug.  He concluded  

                                                                                                                      



"with certainty that [Dr. Odom] practiced to the standard of care like a reasonable doctor  

                                                                                                                            



would treat a patient and not allow her to continue her obesity and worsen her condition.  

                                                                                                                                       



So he intervened appropriately, in my opinion, and she got better."  Dr. Rouzier, too,  

                                                                                                                                



testified adamantly that the best treatment for S.Q.'s obesity was weight loss and that  

                                                                                                                                



phentermine was a safe and effective way to promote it.  

                                                                                        



                    The ALJ who presided over the evidentiary hearing noted that the Division  

                                                                                                                         



"did not call S.Q.'s treating cardiologist, or any other cardiologist, as a witness, and it did  

                                                                                                                                 



not admit into evidence any studies of phentermine to support the allegations of the  

                                                                                                                                 



accusation." The ALJ contrasted the Division's expert witness, Dr. Nolan, who "has little  

                                                                                                                               



clinical experiencewith phentermine,"with Dr. Odom's expertwitness, Dr. Bryman, who  

                                                                                                                                



had "substantial clinical experience with phentermine, including the use of phentermine  

                                                                                                                   



for patients referred by cardiologists."  The ALJ concluded that "the Division has not  

                                                                                                                                 



shown by a preponderance of the evidence that it was below the standard of care to  

                                                                                                                                  



prescribe phentermine to S.Q." We agree with this conclusion, noting that it is even more  

                                                                                                                              



                                                               -19-                                                         7187
  


----------------------- Page 20-----------------------

                                                                                                                                                                           38  

 strongly compelled under the applicable clear and convincing evidence standard.                                                                                                 The  



evidence detracting from the Board's decision is dramatically disproportionate to the                                                                                              



evidence in support of it, meaning that we cannot conscientiously say that the supporting                                                                          

evidence is substantial.                         39  



                                                                                                                                                                                     

                             Finally, the Division's proposal for action - the Board's final decision -  



                                                                                                                                                                        

cited an earlier Medical Board decision in support of the proposition that a doctor's  



                                                                                                                                                                      

prescription contrary to manufacturer-provided contraindications can show a breach of  



                                                                                                                                                                    

the standard of care.  In re Bartling dealt in part with a claim that a doctor had prescribed  



                                                                                                                                                                                     

an opioid to a patient who was not opioid tolerant, "contrary to FDA warnings" listed on  



                                                      40  

                                                                                                                                                                            

the product's packaging.                                     The Board concluded that the patient actually was opioid  



                                                                                                                                                    41  

                                                                                                                                                                             

tolerant and therefore there was no violation of the standard of care.                                                                                     But the Board  



                                                                                                                                                                               

noted the testimony of two experts that "the warning was a guide, and that in some cases  



                                                                                                                                                                        

it is medically appropriate to prescribe [the drug] to a patient who is not opioid tolerant"  



                                              42  

                                                                                                                                                                                  

despite the warnings.                               And the Board in Bartling  did not have to address issues like  



                                                                                                                                                                 

those in this case about whether more recent research and clinical experience undermined  



              38             See Storrs           , 664 P.2d at 555;                   Nguyen v. State, Dep't of Health Med. Quality                                     



Assurance Comm'n                          , 29 P.3d 689, 696 (Wash. 2001).                                         



              39             See Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624,  

                                                                                                                                                                               

 634 n.40 (Alaska 2011).  

                                                      



              40             OAH No.  12-0221-MED at 9 (July 19, 2013).  

                                                                                                                 



              41            Id. at 10.  

                                         



              42            Id.  



                                                                                         -20-                                                                                7187
  


----------------------- Page 21-----------------------

the credibility of the product literature.   Bartling does not support the Board's decision  



                              43  

in this case.                        



                                                                                                                                                                                                                       

                 C.	              The Medical Board's Conclusion That Dr. Odom's Prescription Of  

                                                                                                                                                                                                                       

                                  Thyroid Hormone Fell Below The Standard Of Care In His Field Of  

                                                                                                                                                           

                                  Practice Was Not Supported By Substantial Evidence.  



                                                                                                                                                                                                       

                                  TheMedicalBoard also adopted as its final decision theDivision'sargument  



                                                                                                                                                                                                                         

that Dr. Odom's conduct was "unprofessional, incompetent, and below the standard of  



                                                                                                                                                                                                                      

care" when he prescribed thyroid hormone to S.Q.  The Board apparently accepted the  



                                                                                                                                                                                                                   

ALJ's relevant factual findings:  that Dr. Odom prescribed Armour Thyroid in late June  



                                                                                                                                                                                                                   

2007 with a beginning dosage of 120 milligrams a day, increasing to 180 milligrams after  



                                                                                                                                                                                                                   

two  weeks  and  240  milligrams  after  four  weeks,  and  that  he  decreased  it  to  180  



                                                                                                                                                                                                               

milligrams in September after S.Q. reported jitteriness on the 240-milligram dose. While  



                                                                                                                                                                                                           

the ALJ found no breach of the standard of care in this chronology, the Board reached  



                                                                                                                                                                                                                         

two much different conclusions:  (1) that Dr. Odom prescribed an excessive dosage of  



                                                                                                                                                                                                                

thyroid hormone, and (2) that it was inappropriate to prescribe thyroid hormone along  



                                                                                                                                                                                                                       

with phentermine given the risks associated with using the two drugs in combination. Dr.  



                                                                                                                                                                                                                       

Odom argues that these findings are not supported by substantial evidence, and again we  



                 43               The Board's decision also cites cases from other jurisdictions in which                                                                                                   



doctors were found to have inappropriately prescribed phentermine to patients with                                                                                                                              

cardiac problems.   Zac v. Riffel                                               , 115 P.3d 165, 170 (Kan. App. 2005) (expert testified                                                                  

that phentermine                              should not have been prescribed to a patient with left ventricular                                                                                

dysfunction); Fletcher v. Pa. Prop. & Cas. Ins. Guar. Ass'n                                                                                                   , 27 A.3d 299, 302 (Pa.                             

Cmmw.   2011)   (malpractice   damages   awarded,   in   part,   because   phentermine   was  

inappropriately prescribed to a patient with coronary artery disease);                                                                                                             Ancier v. State,           

Dep't   of   Health,   166   P.3d   829,   834   (Wash.   App.   2007)   (doctor   inappropriately  

prescribed180,000 medications, including phentermine,overtheinternet;experttestified                                                                                                                     

that phentermine is dangerous for patients with cardiovascular disease).                                                                                                                None of these          

cases address S.Q.'s particular malady, asymptomatic peripartum cardiomyopathy.                                                                                                                                       



                                                                                                          -21-	                                                                                                 7187
  


----------------------- Page 22-----------------------

                                                                                                                        

agree  with  him,  particularly  in  light  of  the  clear  and  convincing  evidence  standard  



                                                        

applicable to professional licensing revocations.  



                                                                                                                                 

                    TheMedical Boardadopted theDivision's argument that S.Q. "received too  



                                                                                                             

much thyroid too soon" because "the product literature state[s] that for hypothyroidism,  



                                                                                                                             

the usual starting dose [of Armour Thyroid] was 30mg, with increments of only 15mg  



                                                                                                                               

every  2  to  3  weeks,"  whereas  S.Q.  started  with  120  milligrams  and  reached  240  



                                                                                                                                  

milligrams five weeks later.   The Board's decision is supported by the testimony of  



                                                                                                                                 

Dr. Nolan, who did not prescribe Armour Thyroid in his own practice but opined that Dr.  



                                                                                                                             

Odom  prescribed  too  much  of  it,  basing  his  opinion  on  what  he  read  in  the  Drug  



                                                                                                                                 

Information Handbook  and the manufacturer's literature.   Dr. Nolan testified that the  



                                                                                                                          

Drug Information Handbook says the "recommended adult dosage" of Armour Thyroid  



                                                              

is "[f]ifteen to 30 milligrams initially."  



                                                                                                                               

                    But the Drug Information Handbook and the manufacturer's literature both  



                                                                                                                             

use the word "recommended" only in conjunction with pediatric dosages, which range  



                                                                                                                                

from 15 milligrams to "over 90" milligrams. The manufacturer's literature does state that  



                                                                                                                             

the "usual starting dose" is 15 to 30 milligrams, to be scaled up by 15 milligrams every  



                                                                                                                          

few weeks.   And the manufacturer's literature and the Handbook  agree that "[m]ost  



                                                                                                                                 

patients require 60 to 120 mg/day."  But neither the manufacturer's literature nor the  



                                                                                                                            

Handbook  supports the Board's necessary extrapolation:  that S.Q. was among "most  



                                                                                                                                

patients" for whom the "usual starting dose" was the only medically appropriate one, and  



                                                                                                                                 

that prescribing dosages other than the usual ones was necessarily unsafe or below the  



                   

standard of care.  



                                                                                                                           

                    Aside from the dosages listed in the Drug Information Handbook and the  



                                                                                                                              

manufacturer's literature, the only evidence of a proper dosage at the hearing came from  



                                                                                                                        

Dr. Odom and his expert witness, Dr. Rouzier, who regularly teaches courses in hormone  



                                                                                                                           

replacementfor"variousmedical academies"including theAmericanAcademy ofFamily  



                                                               -22-                                                         7187
  


----------------------- Page 23-----------------------

Physicians.       Dr.    Odom    testified    that   the    "average"    adult    dosage    is    4    grains  



(240 milligrams) per day.                                                                                       Dr. Rouzier testified that the "standard" dosage is between                                                                                                                                                                 



2 and 4 grains (120 to 240 milligrams) per day.                                                                                                                                                                Dr. Rouzier also testified that S.Q.'s                                                                                                



dosages - from 120 milligrams to 240 milligrams then back down to 180 milligrams per                                                                                                                                                                                                                                                                               



day   - were "very appropriate" and "within the range of what's standard and available                                                                                                                                                                                                                                                    



 . . . for us to prescribe." According to Dr. Rouzier, S.Q.'s dosage even at its highest "was                                                                                                                                                                                                                                                              



a standard, middle-of-the-range, middle-run dose.   Not too high, not too low."  He also                                                                                                                                                                                                                           



testified that the drug manufacturer makes 4 grain, 5 grain, and 6 grain tablets; the                                                                                                                                                                                                                                                                             



manufacturer's literature and the                                                                                                          Drug Information Handbook                                                                                                     confirm that 4 grain and                                                                



 5 grain tablets (240 and 300 milligrams) are available, which runs counter to the Medical                                                                                                                                                                                                                                                    



Board's conclusion that S.Q.'s lower dosages were necessarily "excessive."                                                                                                                                                                                                                                                         



                                                        Dr. Rouzier's and Dr. Odom's estimates of "standard" dosages are indeed                                                                                                                                                                                                                     



higher   than   what the                                                                      Drug   Information Handbook                                                                                                       lists as usual maintenance                                                                                             doses  

                                                                                                                                                                                                                                                                                                                                                44              The  

("[u]sually   60-120   mg/day"),   but   every   patient   cannot   be   the   usual   patient.                                                                                                                                                                                                                                                            



manufacturer's literature adds, "The dosage of thyroid hormones . . . must in every case  

                                                                                                                                                                                                                                                                                                                                                              



be individualized according to patient response and laboratory findings."  Dr. Rouzier  

                                                                                                                                                                                                                                                                                                                                              



testified accordingly that some patients achieve the best results from taking significantly  

                                                                                                                                                                                                                                                                                                                            



higher doses of thyroid hormone than those prescribed to S.Q. According to Dr. Rouzier,  

                                                                                                                                                                                                                                                                                                                                             



 S.Q.'s dosages were within the safe range.  

                                                                                                                                                                                      



                                                         The Division presented some evidence about the risks of excessive thyroid  

                                                                                                                                                                                                                                                                                                                                                  



hormone. The manufacturer's literature notes that "[e]xcessive doses of thyroid result in  

                                                                                                                                                                                                                                                                                                                                                                        



                            44                          Dr. Rouzier explained that "normal" simply refers to "an average of the                                                                                                                                                                                                                                



population" rather than what might be best for a particular patient.                                                                                                                                                                                                                            And Dr. Bryman                            

explained that "normal" can differ between patients at a healthy weight and those who                                                                                                                                                                                                                                                                     

are obese, just as "normal" will differ between pediatric and geriatric patients.                                                                                                                                                                                                                                                           



                                                                                                                                                                                -23-                                                                                                                                                                     7187
  


----------------------- Page 24-----------------------

                                                                                                                                                                                                     45  

 a hypermetabolic state," essentially inducing hyperthyroidism.                                                                                                                                            Dr. Nolan testified that                                      



 too much thyroid hormone can eventually lead to atrial fibrillation and bone loss, and                                                                                                                                                                                 



 Dr.   Rouzier   testified   that   extremely   high   doses   could   lead   to   "palpitations   [and]  



 tachycardia."   But Dr. Rouzier also testified that if a patient starts seeing side effects like                                                                                                                                                                        



jitteriness (as S.Q. did), the dosage can simply be scaled back, and the drug's effect will                                                                                                                                                                             



 dissipate in less than 24 hours.                                                                       This is consistent with the manufacturer's literature,                                                                                       



 which suggests that overdoses of Armour Thyroid be treated by simply reducing or                                                                                                                                                                                            



 temporarily discontinuing the usual dosage.                                                                                                   And the Division failed to establish how                                                                               

                                                                                                                      46       Again, we cannot conscientiously say that the  

 much thyroid hormone is too much.                                                                                                                                                                                                                                        



 Medical Board's finding  that Dr.  Odom prescribed  an  excessive  dosage of Armour  

                                                                                                                                                                                                                                                          



 Thyroid is supported by substantial evidence, particularly given the clear and convincing  

                                                                                                                                                                                                                                                 



 evidence standard the Division was required to meet.  

                                                                                                                                                       



                                           Similarly unsupported is the Board's conclusion that S.Q. "received too  

                                                                                                                                                                                                                                                                          



 much thyroid hormone too soon." There was little evidence on this issue presented at the  

                                                                                                                                                                                                                                                                           



 hearing.  In Dr. Nolan's rebuttal testimony he referred to the dosage as being "excessive  

                                                                                                                                                                                                                                                   



 to start with," apparently by referencing only the "usual dosages" entry in the Drug  

                                                                                                                                                                                                                                                                   



Information Handbook .  But again, there is no basis in the record for inferring that a  

                                                                                                                                                                                                                                                                                



 physician breaches the standard of care unless he treats every patient as the "usual"  

                                                                                                                                                                                                                                                            



                      45                   Hyperthyroidism   is   "[a]n   abnormality   of   the   thyroid   gland   in   which  



 secretion of thyroid hormone is usually increased and no longer under regulatory control                                                                                                                                                                   

 ofhypothalamic-pituitary                                                       centers."   Hyperthyroidism, S   TEDMAN'S MEDICAL DICTIONARY  

 (28th ed. 2006).              



                      46                   Dr. Nolan testified that in his experience, "most people [taking] around 3                                                                                                                                                         



 or 4 grains [180 to 240 milligrams] of dessicated thyroid per day will have perturbation                                                                                                                                                  

 of thyroid function, which is not desirable."  But Dr. Nolan also admitted that he never  

                                                                                                                                                                                                                                                                

 prescribes Armour Thyroid, and that he believes the use of Armour Thyroid                                                                                                                                                                                       to be   

 "substandard  and  unconventional."                                                                                        He  testified  that  practitioners  in  the  field  of  

                                                                                                                                                                                                                                                                         

 endocrinology have sought to remove Armour Thyroid from the market.  

                                                                                                                                                                                                              



                                                                                                                                    -24-                                                                                                                          7187
  


----------------------- Page 25-----------------------

patient.   Given the strong contrary testimony of Dr. Odom and Dr. Rouzier, we conclude                                                                                                                                               



that substantial evidence does not support the Board's finding that a starting dosage                                                                                                                                                      



differing from those listed in the                                                              Drug Information Handbook                                                              indicated a breach of the                                        



standard of care.                  



                                       The Medical Board also accepted the Division's argument that it was unsafe                                                                                                                             



for Dr. Odom to combine thyroid hormone and phentermine when prescribing for S.Q.   



In support of this argument the Division cited only the product literature for Armour                                                                                                                                                    



Thyroid, which reads in part, "Larger doses may produce serious or even life-threatening                                                                                                                            



manifestations of toxicity, particularly when given in association with sympathomimetic                                                                                                                     



amines [e.g., phentermine] such as those used                                                                                                    for  their anorectic effects."                                                       But this   



warning is explicitly directed toward the drug's use "[i]n euthyroid patients," meaning                                                                                                                                                

                                                                                                                                   47  Whether S.Q. had normal thyroid gland  

patients with normal thyroid gland function.                                                                                                                          



function was another disputed issue. Dr. Nolan testified that she did, based on laboratory  

                                                                                                                                                                                                                                   



tests showing thyroid levels within the normal range. The ALJ's recommended decision,  

                                                                                                                                                                                                                                       



however,  described  the  symptoms  that  led  Dr.  Odom  to  his  clinical  diagnosis  of  

                                                                                                                                                                                                                                                         



hypothyroidism and  noted  the  dispute  between  physicians  who  rely  on  lab  tests  to  

                                                                                                                                                                                                                                                          



determine normal thyroid function and those who "subscribe to an alternative view,  

                                                                                                                                                                                                                                                



accepted by many clinicians in their field of practice, to the effect that normal laboratory  

                                                                                                                                                                                                                                  



findings simply reflect the thyroid hormone levels found in the population generally,  

                                                                                                                                                                                                                                   



rather than the levels that will result in optimal functioning."   But this dispute was  

                                                                                                                                                                                                                                                    



ultimately irrelevant, because, as the ALJ concluded, "the Division's accusation did not  

                                                                                                                                                                                                                                                       



allege that Dr. Odom misdiagnosed hypothyroidism," but rather that, assuming S.Q. had  

                                                                                                                                                                                                                                                      



hypothyroidism, he prescribed too much thyroid hormone to treat it.  

                                                                                                                                                                                                            



                    47                 See Euthyroidism                                    , S     TEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                                                  



                                                                                                                           -25-                                                                                                                 7187  


----------------------- Page 26-----------------------

                                    Besides the manufacturer's literature, Dr. Nolan also testified that "excess                                                                                                      



thyroid hormone and [p]hentermine is not a good combination"; "[t]he risks of using                                                                                                                                        



phentermine    with    high    doses    of    Armour    Thyroid    in    persons    with    established  



cardiomyopathy is not a good idea.                                                               It's just too risky."                                 But Dr. Nolan did not explain                                  



why the combination was unsafe, nor did his testimony shed light on whether he believes                                                                                                                              



phenterminecombined                                           withlower doses ofthyroid hormonewouldbewithin                                                                                              thestandard   



                    48  

of care.                  



                                    Finally, both Dr. Rouzier and Dr. Bryman, who were able to testify from  

                                                                                                                                                                                                                             



their own direct experience treating patients in Dr. Odom's fields of practice, concluded  

                                                                                                                                                                                                                                             



that Dr. Odom was acting within the standard of care in prescribing phentermine and  

                                                                                                                                                                                                                                



thyroid  hormone  to  S.Q.                                                 Dr.  Rouzier  testified,  "The  only  thing  that  helps  [obese,  

                                                                                                                                                                                                                      



hypothyroid]  patients  is  weight  loss.                                                                     Get  the  fat  off.  .  .  .  How  do  you  do  that?  

                                                                                                                                                                                                                            



Phentermine and thyroid."  

                                               



                                    Having reviewed therecord, "wecannot 'conscientiously' find theevidence  

                                                                                                                                                                                                                   

                                                                                                                                                 49  particularly given the clear and  

 supporting the [Board's] decision to be 'substantial,' "                                                                                                                                                                       

                                                                                                                                               



convincing evidence standard the Division was required to meet.  The record does not  

                                                                                                                                                                                                                                 



 support  the  Medical  Board's  conclusion  that  Dr.  Odom  prescribed  excess  thyroid  

                                                                                                                                                                                                                     



                  48                The Board's decision does not appear to rely on the                                                                                               Drug Information   



Handbook   for   its   findings  about   the   use   of   thyroid   hormone   and   phentermine   in  

combination.   The  Handbook  does not suggest that combining the two drugs is unsafe.                                                                                                                                                   

The   Handbook 's section on phentermine advises prescribing physicians to "[a]void                                                                                                                              

concomitant use" of phentermine with several drugs but not including thyroid hormone,                                                                                                                          

and the                Handbook   does not include thyroid hormone in the list of drugs for which                                                                                                                      

phentermine may increase or decrease the effect or toxicity. Nor does the                                                                                                                             Handbook 's  

 section on thyroid hormone warn against combining it with phentermine.                                                                                                                               



                  49                Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634  

                                                                                                                                                                                                                              

n.40 (Alaska 2011).  

                                     



                                                                                                                -26-                                                                                                       7187
  


----------------------- Page 27-----------------------

hormone   to   S.Q.,   or   that   it   was   unsafe   or   incompetent   to   prescribe   phentermine   in  



combination with thyroid hormone.                                                                                                     



                         D.                      The Medical Board's Decision Must Be Reversed.                                                                                                                                                       



                                                 We   conclude   that   the   Division   failed   to   prove   that   Dr.   Odom "lack[s]   



sufficient knowledge, skills, or professional judgment in that field of practice in which                                                                                                                                                                                                                  



                                                      50  

 [he] engages."                                                                                                                                                                                                                                                                                                              

                                                                 We note that the legislature has expressly warned against "bas[ing] a  



                                                                                                                                                                                                                                                                                                                          

finding of professional incompetence solely on the basis that a licensee's practice is  



                                                                                                                                                                                                                                                                                                                            

unconventional  or  experimental  in  the  absence  of  demonstrable  physical  harm to  a  

patient."51  The Division disclaims any intent to violate this statutory directive, but it is  



                                                                                                                                                                                                                                                                                                                             

hard to overlook the fact that this case, involving no "demonstrable physical harm to a  



                                                                                                                                                                                                                                                                                                                     

patient,"resulted in theBoard excessivelysanctioning therespondent for an approach that  

                                                                                                                                                                                                                                                                                                           52        We  

                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                           

the evidence showed was commonly taken by physicians in his field of practice. 



                         50                      See   12 AAC 40.970 (defining "professional incompetence").                                                                                                         



                                                 The Division argues on appeal that "Dr. Odom's 'field of practice' in this                                                                                                                                                                                      

context was the prescribing of controlled substances and other drugs and he was not free                                                                                                                                                                                                                         

to ignore contraindications or dosage limits merely by claiming that he was a weight loss                                                                                                                                                                                                                        

or an antiaging physician."                                                                           We reject the argument that "the prescribing of controlled       

substances"   is   itself   a   field   of   practice;   this   would   presumably   allow   any   medical  

professional   with   prescribing   authority  to  testify   about   the   standard   of   care   for  

prescribing drugs in a specialty of which the witness has no knowledge or practical                                                                                                                                                                                                           

experience.   While the applicable definition of incompetence is regulatory rather than                                                                                                                                                                                                                       

statutory, it is noteworthy that in the analogous context of medical malpractice cases the                                                                                                                                                                                                                          

legislature has mandated that only those experts who practice in the defendant's "field                                                                                                                                                                                                                   

or specialty" are qualified to offer opinions on the standard of care. AS 09.55.540(a)(1).                                                                                                                                                                                                                                       

It would seem incongruous to require something less when a physician's license is at                                                                                                                                                                                                                                    

stake.  



                         51                      AS 08.64.326(a)(8)(A).  

                                                               



                         52                      As the ALJ properly noted, Dr. Nolan's opinion was "the view of the  

                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                                 (continued...)  



                                                                                                                                                          -27-                                                                                                                                               7187
  


----------------------- Page 28-----------------------

conclude that the Medical Board lacked sufficientevidencetosupportits findings                                                                                                                                                                                                                             and that  



the Medical Board abused its discretion by revoking Dr. Odom's medical license.                                                                                                                                                                                                         



V.                       CONCLUSION  



                                                  For the foregoing reasons, we REVERSE the superior court's decision                                                                                                                                                                                  



affirming the decision of the Medical Board to revoke Dr. Odom's medical license.                                                                                                                                                                                                           



                         52(...continued)  



                                                                                                                                                                                                                                                                                                    

American  Association  of  Clinical  Endocrinologists.                                                                                                                                                                Dr.  Odom  and  Dr.  Rouzier  

                                                                                                                                                                                                                                                                                                                                         

subscribe to an alternative view, accepted by many clinicians in their field of practice."  



                                                                                                                                                             -28-                                                                                                                                                  7187
  

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