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Procedural error by judge does not reverse discipline decision

The Michigan Court of Appeals, in a May 14 decision, affirmed discipline issued against a doctor for improper prescribing practices despite an administrative law judge's error in deciding to merge two of the disciplinary charges against him.

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(Department of Licensing & Regulatory Affairs vs. Adu-Beniako).

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Although the administrative judge had erred, that error was not so significant as to require the reversal of the discipline.

The Michigan Bureau of Professional Licensing, acting on behalf of the state boards of pharmacy and medicine, filed complaints against physician Solomon Adu-Beniako after analyzing his prescription practices and determining that he was engaged in suspicious practices, including issuing opioid prescription without variation between patients, doing so without individualized treatment plans, and otherwise failing to tailor prescriptions to any diagnosed patient need.

One employee of Adu-Beniako’s testified to several suspect practices on behalf of the physician, such as writing prescriptions before seeing patients and seeing multiple unrelated patients at the same time. In addition, several patients whose prescription records would have been available for Adu-Beniako to review for problems had had multiple prescriptions sent to 10 or more other pharmacies before they came to his office for prescription.

In addition, from late March to August 2018, following the dissolution of a summary suspension against his prescribing licenses, 87% of Adu-Beniako’s prescriptions were for hydrocodone with acetaminophen, a number that a board witness and an investigator testified was unusually high.

Following a hearing, an administrative law judge issued mixed recommend-ations, finding no support for several of the more serious allegations—such as diversion of drugs for illegal use—but nevertheless concluding that Adu-Beniako issued several prescriptions without adequate justification.

In making that finding, the judge took the unusual step of collapsing charges of Adu-Beniako’s breach of general duty and incompetence as “essentially the same breach-of-duty charge,” and deciding to “treat[…] them as a single charge.”

Following the administrative judges, the medical board suspended Adu-Beniako’s medical license for six months, and the pharmacy board revoked his prescribing licenses.

Adu-Beniako appealed, arguing that the administrative judge had erred by collapsing the allegations of failure in general duty and of incompetence into a single charge. Although the appellate court agreed that the judge’s decision to merge the two charges was indeed an error, it also found that error insubstantial and thus not useful to Adu-Beniako in a challenge to his disciplinary sanctions.

“The concepts of breach of duty and incompetence are similar but legally distinct,” wrote Judge Mark Cavanagh. “Accordingly, the ALJ erred by stating that they were indistinguishable from each other. However, the ALJ’s statement is better understood to mean that the facts supporting both charges are the same and therefore it does not reflect a substantial and material legal error.”

Despite the incorrect decision to merge the charges, the court held that the administrative judge’s analysis of Adu-Beniako’s prescribing practices nevertheless established his violations of the state’s professional conduct rules and prescribing guidelines.

Adu-Beniako also challenged the sufficiency of the board’s evidence regarding his failure to maintain controls against diversion of his prescriptions and his failure to prescribe controlled substances in good faith, but the court, analyzing the evidence against him, rejected that argument as well, and upheld the discipline.