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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 (2/9/2018) sp-7220

Odom v. State, Division of Corporations, Business & Professional Licensing (2/9/2018) sp-7220

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

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                     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. 7220 - February 9, 2018  




                              Appellee.                      )



                                 rom the Superior Court of the State of Alaska, Third  

                    Appeal f 


                    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.  



                    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                                                                                                                                                         


                                        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).  


                                                                                                                           -2-                                                                                                                 7220

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


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  



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  



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),                                                                                                         


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


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




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

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



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


                                                                                         -3-                                                                                 7220

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

                          The   obesity   treatment   plan   included   a   prescription   for   phentermine,  a  


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-                                                                          7220

----------------------- 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  


                                          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.  




                                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-                                                                                            7220

----------------------- 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                                                                                                                                                        


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  



                    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-                                                                                                                7220

----------------------- 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  




                            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-                                                                               7220

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

proposed decision by the ALJ 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                                                                                                                                                                                                                                                                                                                                 


                                                                 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-                                                                                                                                                                                              7220

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


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


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  



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


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



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           


            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-                                                                     7220

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

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



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



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



disciplinary sanction for abuse of discretion. 





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



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.  



           21         See also AS 08.64.101(3).  


                                                                   -10-                                                             7220

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


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


reprimand or required               educationto revocation ofamedical license.                                        

                                                                                                              The Administrative  


Procedure Act provides that "if an accusation has been filed under AS 44.62.360" (to  


determine whether a license "should be revoked, suspended, limited, or conditioned"),  


the accusing authority "has the burden of proof by a preponderance of the evidence"  


unless "applicable law" requires otherwise.  We assume for purposes of this discussion  



that the preponderance of the evidence standard applies. 


                      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         Our  opinion,  when  first  published,  applied  a  clear  and  convincing  evidence  

standard,   citing   the   due   process   analysis   of   Nguyen   v.   State,   Dep't   of Health Med.  

Quality  Assurance  Comm'n,  29  P.3d  689,  696  (Wash.  2001).   On  the  Division's  petition  

for  rehearing  we  conclude  that  this  case  does  not  require  us  to  decide  whether  a  standard  

higher  than  preponderance  of  the  evidence  is  constitutionally  mandated  in  professional  

licensing  proceedings.   

                                                                    -11-                                                              7220

----------------------- 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                                                                                                                                                                                                                                    


 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  



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



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

                          25                       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))).                                                                               

                          26                       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.  


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



                                                                                                                                                             -12-                                                                                                                                                     7220

----------------------- 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                                                                                       


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,  



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



              28            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-                                                                               7220

----------------------- 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                                                                                                                                                                                                                       


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]  



                                                               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  

                         29                       AS 08.64.331(f).   

                         30                      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-                                                                                                                                                7220

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


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



                       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  



                         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  

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

PRESENT          (Feb.       9,    2017),  



          32        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).  


          33        AS 08.64.331(f).  


                                                               -15-	                                                      7220

----------------------- 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 insufficient to support the                                                                                       

Board's finding of incompetence.                                                      

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


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  

                 34              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-                                                                                              7220

----------------------- 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   


                                                      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                                                                                                                                                                                                                                                           


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  

                           35                         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-                                                                                                                                                             7220

----------------------- 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  


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  

                              36                           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                                                                 


                                                                                                                                                                                       -18-                                                                                                                                                                           7220

----------------------- 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.  The evidence detracting  


                                                               -19-                                                         7220

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

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  



                          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  



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



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"  



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  


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



in this case. 

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

634 n.40 (Alaska 2011).                          

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

             39           Id.  at   10.  

             40           Id.  

             41           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  


                                                                                 -20-                                                                         7220

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

                              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.                                                                                                                                                          

                                                          TheMedical                                             Board alsoadoptedasitsfinaldecisiontheDivision's                                                                                                                                                                                argument  

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                                                                                                                                                                                                                                                                                      

 agree with him.                                

                                                          TheMedical Board                                                                    adopted 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  



 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-	                                                                                                                                                                        7220

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


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  


replacement for "various medicalacademies"including theAmericanAcademyofFamily  


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  

                                                               -22-                                                         7220

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

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   

                                                                                                                                                                                                                                                 42         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  


a hypermetabolic state," essentially inducing hyperthyroidism.43   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  


                    42                  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.                                                                                                                                                             

                    43                  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, STEDMAN'S MEDICAL DICTIONARY  


(28th ed. 2006).             

                                                                                                                              -23-                                                                                                                    7220

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

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                                                           

                                                                                                  44      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.  


                                    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"  


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  


                  44                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-                                                                                                     7220

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

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                                                                 

patients with normal thyroid gland function.45  Whether S.Q. had normal thyroid gland  

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.  


                          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  


phenterminecombinedwith lower doses ofthyroid hormonewouldbewithin thestandard  


of care.46  


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

             46           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  



                                                                                 -25-                                                                        7220

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

                           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                                      the evidence   

                                                                                                              47   The record does not support the  

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

Medical Board's conclusion that Dr. Odom prescribed excess thyroid hormone to S.Q.,  


or that it was unsafe or incompetent to prescribe phentermine in combination with thyroid  




              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  



[he] engages." 


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



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.  

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


n.40 (Alaska 2011).  


              48           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  



                                                                                      -26-                                                                              7220

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

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."          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 intheBoard excessivelysanctioning therespondent for an approach that  



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


concludethat the Medical Board lacked sufficient evidencetosupportits 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.  



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  


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


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


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


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


                                                                    -27-                                                             7220

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

             In the Supreme Court of the State of Alaska

David  M.  Odom,  M.D.,	                                       )  

                                                                            Supreme  Court  No.  S-16151  


                                Appellant,                     )  

                   v.	                                         )                           Order  

                                                               )            Petition  for  Rehearing  

State  of  Alaska,  Division  of                               )  

Corporations,                                                  )  



                                   Appellee.                   )            Date of Order: 2/9/2018  


Trial Court Case # 3AN-14-08082CI  


          Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  and Carney, Justices.  


          Having considered the petition for rehearing filed by the State of Alaska, Division  


of Corporations, Business  & Professional  Licensing, the response  filed by  David M.  


Odom, and the supplemental briefing of both parties,  

          IT IS  ORDERED  that  the  petition  is  GRANTED  as  follows:  

          1.	       Opinion No. 7187, issued 8/11/2017 is                     W 



          2.	       Opinion No. 7220, is issued on this date in its place.  


          3.	       The  opinion  as  modified  declines  to  adopt  a  "clear  and  convincing  


                    evidence" burden of proof for actions to revoke medical licenses; minor  


                    editing  changes  reflect  this  modification.                       The  opinion  is  otherwise  



                    Entered by direction of the court.  


                                                                     Clerk of the Appellate Courts  



                                                                     Marilyn May  


cc:	      Supreme Court Justices  


          Judge Saxby  


          Trial Court Appeals Clerk  



----------------------- Page 29-----------------------

David M. Odom, M.D. v. State of Alaska, Division of Corporations  

Supreme Court No. S-16151  

Order of 2/9/18  

Page Two  



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