Administrative Hearing Commission State of Missouri




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Before the

Administrative Hearing Commission

State of Missouri

STATE BOARD OF REGISTRATION FOR )

THE HEALING ARTS, )

)

Petitioner, )



)

vs. ) No. 10-0060 HA

)

JAMES R. WEBB, JR., D.O., )



)

Respondent. )




DECISION

James R. Webb, Jr. D.O., is subject to discipline for writing prescriptions for controlled substances without making a sufficient examination and without a medically accepted therapeutic purpose, writing such prescriptions without adequate documentation, misconduct, unprofessional conduct, incompetency, violating a drug law of this state, failing to keep medical records for persons for whom he wrote prescriptions, and for failing to inform the Board of his current business address.


Procedure


On January 13, 2010, the State Board of Registration for the Healing Arts (“the Board”) filed a complaint seeking to discipline Webb. Webb was personally served with our notice of complaint/notice of hearing on April 19, 2010. He did not file an answer. The Board filed an

amended complaint on December 9, 2010. Webb did not file an answer to the amended complaint.

We held a hearing on January 31, 2011. Robert Groves represented the Board. Neither Webb, nor anyone representing Webb, appeared. The case became ready for our decision on February 10, 2011, when the last written argument was filed.

The Board relies upon the request for admissions it served that were not answered by Webb. Under Supreme Court Rule 59.01, the failure to answer a request for admissions establishes the matters asserted in the request, and no further proof is required.1 Such a deemed admission can establish any fact or any application of law to fact.2 That rule applies to all parties, including those acting pro se.3 Section 536.0734 and our Regulation 1 CSR 15-3.420(1) apply that rule to this case. Our regulations further require Webb to file an answer to the Board’s complaint,5 and we may order, on our own motion, that the facts pled in a complaint are deemed admitted when a party fails to file an answer.6 Therefore, we deem the facts pled in the complaint to be admitted because Webb failed to file an answer to the Board’s complaint.



Findings of Fact

  1. Webb is a licensed osteopathic physician and surgeon. His license was issued on or about October 5, 1995. His certificate of registration was current and active at all relevant times.

  2. At all relevant times, Webb practiced medicine from various locations, including Kansas City, Missouri, and Blue Springs, Missouri.7



Count I- K.B., M.C., and C.G.

  1. M.C. first encountered Webb while he (M.C.) was recovering from a staph infection, could not obtain a prescription refill for pain killers from his treating physician, and was told that Webb would write prescriptions for pain killers for a payment of money, without the need for an examination.

  2. Webb regularly wrote prescriptions for pain killers for M.C.

  3. M.C. referred others to Webb for prescriptions for pain killers.

  4. On March 26, 2008, Webb wrote a prescription for #120 Hydrocodone/Tylenol 10/325 mg tablets bearing the name of K.B.

  5. Hydrocodone is a Schedule II controlled substance.8

  6. K.B. was never Webb’s patient.

  7. Webb never met K.B.

  8. Webb obtained K.B.’s name from K.B.’s sibling, M.C.

  9. Webb gave the prescription to M.C.

  10. M.C. would refer other persons seeking drugs to Webb, either directly or by providing information about the other persons to Webb.9

  11. In this instance, the Tylenol/Hydrocodone prescription was intended for yet another person, C.G.

  12. C.G. had, in the past, obtained prescriptions for Hydrocodone/Tylenol from Webb, without Webb seeing C.G. or examining him/her.



  1. On this occasion, C.G. did not want the prescription to be in his/her name because another person, not known to C.G. but known to M.C., was using C.G.’s name and insurance information.

  2. Webb performed no examination on C.G., K.B., or M.C.

  3. Webb kept no record regarding C.G., K.B., or M.C. and the prescription in question.

Count II- B.M., M.C., C.G., and R.M.

  1. Webb wrote prescriptions for Adderall,10 Hydrocodone/Tylenol, and Ambien11 for M.C., B.M., R.M., and C.G. without conducting patient examinations of any of them.

  2. Webb failed to keep medical records for M.C., B.M., R.M., and C.G. with regard to the prescriptions described above.

  3. Webb did not establish a valid doctor-patient relationship with M.C., B.M., C.G., or R.M.

Count III

  1. At all relevant times, Webb lived at Robert St., Shawnee, Kansas.

  2. At all relevant times, Webb held office locations at 1500 W. Vivian Rd., Kansas City, Missouri, and 810 NW St. Mary’s Drive, Blue Springs, Missouri.

  3. When the Board tried to serve Webb with a subpoena for his medical records for B.M., M.C., C.G., and R.M. at the Vivian Rd. location, its agent for service was told by personnel working there that Webb had an office at that location, but was not there at that time.

  4. Webb did not keep his listed practice address current and up to date with the Board.



Count IV- Repeated Negligence

We make no separate findings of fact with regard to this count.


Conclusions of Law


We have jurisdiction to hear the Board’s complaint.12 The Board has the burden of proving that Webb’s license is subject to discipline under the law.13 The Board has the burden to prove its case by a preponderance of the credible evidence.14

Webb admitted facts and that those facts authorize discipline. But statutes and case law instruct that we must “separately and independently” determine whether such facts constitute cause for discipline.15 Therefore, we independently assess whether the facts admitted allow discipline under the law cited.



Statutory Grounds for Discipline

The Board alleges that cause for discipline exists under § 334.100.2, which provides in relevant part:

2. The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621 against any holder of any certificate of registration or authority, permit or license required by this chapter or any person who has failed to renew or has surrendered the person's certificate of registration or authority, permit or license for any one or any combination of the following causes:

* * *

(4) Misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of the functions or duties of any profession licensed or regulated by this chapter, including, but not limited to, the following:

* * *


(h) Signing a blank prescription form; or dispensing, prescribing, administering or otherwise distributing any drug, controlled substance or other treatment without sufficient examination, . . . or for other than medically accepted therapeutic or experimental or investigative purposes duly authorized by a state or federal agency, or not in the course of professional practice, or not in good faith to relieve pain and suffering, or not to cure an ailment, physical infirmity or disease, except as authorized in section 334.104;

* * *
(m) Failure of any applicant or licensee to cooperate with the board during any investigation;


* * *
(q) Failing to inform the board of the physician's current residence and business address;
* * *

(5) Any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter. For the purposes of this subdivision, “repeated negligence” means the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant's or licensee's profession;


(6) Violation of, or attempting to violate, directly or indirectly, or assisting or enabling any person to violate, any provision of this chapter . . . , or of any lawful rule or regulation adopted pursuant to this chapter . . . ;


* * *

(13) Violation of the drug laws or rules and regulations of this state, . . . any other state, or the federal government[.]

Count I-C.G., K.B., and M.C.


While Count I is primarily concerned with Webb’s writing of a single prescription that bore the name of K.B., the background to that allegation is rooted in Webb’s association with

M.C. and his general willingness to write prescriptions without examining – or, as in the case of the prescription discussed here, without meeting – those for whom he was writing the prescriptions.


A. Section 334.100.2(4)(h)

The Board alleges that by writing a prescription for a controlled substance without making a sufficient examination, Webb is subject to discipline under § 334.100.2(4)(h). We agree. While it is unclear whether Webb knew that C.G. was the person who wanted the prescription, we find that Webb performed no examination of any sort, let alone a sufficient examination, on C.G. (the person who wanted the prescription, but did not want it in her name), K.B. (the person whose name was on the prescription), or M.C. (the person who took the prescription from Webb, presumably to deliver to C.G.). It is also clear that Webb did not write the prescription for any medically accepted therapeutic purpose. There is cause for discipline under § 334.100.2(4)(h).



B. Section 334.100.2(6)

The Board alleges that Webb is subject to discipline under § 334.100.2(6) for writing a prescription for a controlled substance bearing K.B.’s name without adequate documentation as required by § 334.097. Section 334.097 provides in relevant part:

1. Physicians shall maintain an adequate and complete patient record for each patient and may maintain electronic records provided the record-keeping format is capable of being printed for review by the state board of registration for the healing arts. An adequate and complete patient record shall include documentation of the following information:
(1) Identification of the patient, including name, birthdate, address and telephone number;
(2) The date or dates the patient was seen;
(3) The current status of the patient, including the reason for the visit;
(4) Observation of pertinent physical findings;
(5) Assessment and clinical impression of diagnosis;
(6) Plan for care and treatment, or additional consultations or diagnostic testing, if necessary. If treatment includes medication, the physician shall include in the patient record the medication and dosage of any medication prescribed, dispensed or administered;
(7) Any informed consent for office procedures.
2. Patient records remaining under the care, custody and control of the licensee shall be maintained by the licensee of the board, or the licensee's designee, for a minimum of seven years from the date of when the last professional service was provided.
3. Any correction, addition or change in any patient record made more than forty-eight hours after the final entry is entered in the record and signed by the physician shall be clearly marked and identified as such, and the date, time and name of the person making the correction, addition or change shall be included, as well as the reason for the correction, addition or change.
4. A consultative report shall be considered an adequate medical record for a radiologist, pathologist or a consulting physician.
We agree that Webb failed to maintain an adequate and complete record with regard to the prescription in question because he did not maintain any record at all. Because he violated
§ 334.097, a provision of Chapter 334, Webb is subject to discipline under § 334.100.2(6).

C. Section 334.100.2(6) and (13)

The Board alleges that Webb is subject to discipline under § 334.100.2(6) and (13) for writing a prescription for a controlled substance bearing patient K.B.’s name. Those paragraphs impose discipline for a physician’s violation of any provision of Chapter 334 or regulations adopted thereto, or of the drug laws of this state, another state, or the federal government. We have already found that Webb is subject to discipline under § 334.100.2(6). However, the Board

neither identified what drug law Webb violated, nor presented any evidence on this point. Therefore, we do not find cause to discipline Webb under § 334.100.2(13).

D. Section 334.100.2(4), (5), and (13)

The Board alleges that Webb is subject to discipline under § 334.100.2(4), (5), and (13) for conducting himself in a manner below the proper standard of care of a physician and therefore engaged in misconduct, unprofessional conduct, negligence, harmful conduct, incompetence, conduct dangerous to the physical health of K.B., M.C., and C.G., and violated the drug laws of this state.

Misconduct means “the willful doing of an act with a wrongful intention[;] intentional wrongdoing.”16 We agree that Webb’s actions constituted misconduct. He wrote the prescription for one person (K.B.) at the behest of K.B.’s sibling, M.C., but the prescription was intended to be filled for the use of a third person, C.G. Webb had filled other prescriptions for controlled substances on behalf of people referred to him by M.C. His actions here were part of a pattern of misconduct shown by his writing prescriptions for people who were referred by M.C., and by writing prescriptions for C.G. without examining him or her.

Unprofessional conduct includes “any conduct which by common opinion and fair judgment is determined to be unprofessional or dishonorable.”17 Webb essentially sold prescriptions without regard to the health of the recipients of those prescriptions. We find his conduct to be unprofessional.

The Board alleges that Webb’s conduct was “negligent.” The term “negligent” or “negligence” as used (with respect to health care providers) means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of

defendant's profession.18 We do not see Webb’s deliberate acts as simply failing to use a degree of skill or learning, but infer from his repeated acts of writing prescriptions simply for financial reward to be something other than, and more than, negligence.19

Incompetency is a general lack of professional ability, or a lack of disposition to use an otherwise sufficient professional ability, to perform in an occupation.20 We follow the analysis of incompetency in a disciplinary case from the Supreme Court, Albanna v. State Bd. of Regis’n for the Healing Arts.21 Incompetency is a “state of being” showing that a professional is unable or unwilling to function properly in the profession.22 The disciplinary statute does not state that licensees may be subject to discipline for “incompetent” acts. An evaluation of incompetency necessitates a broad-scale analysis, one taking into account the licensee’s capacities and successes.23 We find that Webb’s behavior evidences a lack of disposition to use his otherwise professional ability to perform or function properly in his profession because writing prescriptions for people without examining them, or without a therapeutic purpose, is not functioning properly in the profession of osteopathic medicine. We also agree with the Board that Webb’s writing of a prescription for a person he had not examined or even met was harmful or dangerous to the physical health of the recipient of the prescription, C.G.

Therefore, we find cause to discipline Webb under § 334.100.2(4) for misconduct and unprofessional conduct, and we find cause to discipline Webb under § 334.100.2(5) for incompetency and conduct that was harmful or dangerous to C.G., but not for negligence. We

have already refused to impose discipline under § 334.100.2(13) because the Board failed to allege or show what drug law Webb violated.

E. Section 334.107

The Board also alleges that by writing a prescription for a controlled substance that was nontherapeutic in the nature in which it was prescribed, and by writing a prescription for a controlled substance without keeping complete and accurate documentation of the drug prescribed, Webb violated § 334.107,24 which provides:

Nothing in section 334.106 and this section shall deny the right of the board to deny, revoke or suspend the license of any physician or otherwise discipline any physician who:
(1) Prescribes, administers or dispenses a controlled substance that is nontherapeutic in nature or nontherapeutic in the manner in which it is prescribed, administered or dispensed, or fails to keep complete and accurate ongoing records of the diagnosis and treatment plan;
(2) Fails to keep complete and accurate records of controlled substances received, prescribed, dispensed and administered, and disposal of drugs listed in the Missouri comprehensive drug control act contained in chapter 195, RSMo, or of controlled substances scheduled in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 801, et seq. A physician shall keep records of controlled substances received, prescribed, dispensed and administered, and disposal of these drugs shall include the date of receipt of the drugs, the sale or disposal of the drugs by the physician, the name and address of the person receiving the drugs, and the reason for the disposal or the dispensing of the drugs to the person;
(3) Writes false or fictitious prescriptions for controlled substances as defined in the Missouri comprehensive drug control act, chapter 195, RSMo, or for controlled substances scheduled in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 801, et seq.; or

(4) Prescribes or administers, or dispenses in a manner which is inconsistent with provisions of the Missouri drug control act contained in chapter 195, RSMo, or the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 801, et seq.


We do not read § 334.107 as creating additional grounds for discipline because first, unlike

§ 334.100, there is nothing in § 334.107 that states grounds for filing a disciplinary complaint with us. Instead, § 334.107 only states that “[n]othing in section 334.106 and this section shall deny the right of the board to deny, revoke or suspend the license of any physician or otherwise discipline any physician[.]” The right of the Board to discipline a physician’s license is found elsewhere, i.e., § 334.100, which we invoke throughout this decision as grounds for discipline.

Second, the language now found in § 334.107 was enacted, along with §§ 334.10525 and 334.106,26 in 1995 under the title “Intractable Pain Treatment Act.”27 Section 334.106.1 gives physicians the right to “prescribe, administer or dispense controlled substances for a therapeutic purpose to a person diagnosed and treated by a physician for a condition resulting in intractable pain, if such diagnosis and treatment has been documented in the physician's medical records,” without fear of disciplinary action by the Board. Given that context, the Intractable Pain Treatment Act simply provides a safe harbor for physicians to prescribe controlled substances for the treatment of intractable pain under those limited circumstances set out in § 334.106, but also gives the Board grounds to initiate a disciplinary action when circumstances warrant. It is not a disciplinary statute. Therefore, while Webb arguably committed the conduct described in

§ 334.107, such conduct does not constitute grounds for discipline under that statute.




Count II- B.M., M.C., C.G., and R.M.

A. Section 334.100.2(4)(h)

The Board alleges that by writing prescriptions for controlled substances for B.M., M.C., C.G., and R.M. without making a sufficient examination, Webb is subject to discipline under

§ 334.100.2(4)(h). We agree because Webb admitted those facts. We therefore find cause for discipline under § 334.100.2(4)(h).

B. Section 334.100.2(13)

The Board alleges that by (a) committing the offense of “fraudulently attempting to obtain a controlled substance” as defined in § 195.204.1,28 by procuring or attempting to procure the administration of a controlled substance by fraud, deceit, misrepresentation, or subterfuge in writing prescriptions for controlled substances to patients R.M., B.M., M.C., and C.G., and (b) committing the offense of “distribution of a controlled substance near schools” as defined in

§ 195.214.1 by unlawfully distributing or delivering any controlled substance to patients R.M., B.M., M.C., and C.G. from his 801 St. Mary’s Drive, Suite 200, Blue Springs, Missouri, practice address located within 2,000 feet of an ongoing private elementary school, Webb is subject to discipline under § 334.100.2(13). Here, as opposed to Count I, the Board identifies the statutes Webb allegedly violated. And we agree that § 195.204.1 and 195.214.1 are drug laws. But did Webb violate them? We consider each statute in turn.

First, we consider § 195.204.1, which provides:

A person commits the offense of fraudulently attempting to obtain a controlled substance if he obtains or attempts to obtain a controlled substance or procures or attempts to procure the administration of the controlled substance by fraud, deceit, misrepresentation, or subterfuge; or by the forgery or alteration of a prescription or of any written order; or by the concealment of a material fact; or by the use of a false name or the giving of a false

address. The crime of fraudulently attempting to obtain a controlled substance shall include, but shall not be limited to nor be limited by, the following:


(1) Knowingly making a false statement in any prescription, order, report, or record, required by sections 195.005 to 195.425;
(2) For the purpose of obtaining a controlled substance, falsely assuming the title of, or representing oneself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, podiatrist, veterinarian, or other authorized person;
(3) Making or uttering any false or forged prescription or false or forged written order;
(4) Affixing any false or forged label to a package or receptacle containing controlled substances;
(5) Possess a false or forged prescription with intent to obtain a controlled substance.
To determine whether Webb obtained or tried to obtain a controlled substance, either in the ordinary definition of “obtain” or under any of the five examples listed in the statute, we examine both the record proffered to us by the Board and Webb’s deemed admissions. The Board makes no allegation and offers no proof that Webb physically obtained or tried to obtain any of the controlled substances at issue, but instead helped others obtain them by writing prescriptions for them. Next, did Webb procure or attempt to procure the administration of any controlled substances? We find no definition of “procure” in the definitions section for Chapter 195. Where a word is not defined in a statute, we give it its common sense, dictionary meaning.29 “Procure” is defined in relevant part as: “2 : BRING ABOUT, ACHIEVE.”30 Webb did, indeed, bring about or achieve the ability of B.M., M.C., C.G., and R.M. to obtain controlled substances without examining them or consulting with them. Webb violated § 195.204.1.

Section 195.214.1 provides:

A person commits the offense of distribution of a controlled substance near schools if such person violates section 195.211 by unlawfully distributing or delivering any controlled substance to a person in or on, or within two thousand feet of, the real property comprising a public or private elementary or secondary school, public vocational school, or a public or private community college, college or university or on any school bus.
Section 195.211 provides in relevant part:

1. Except as authorized by sections 195.005 to 195.425 and except as provided in section 195.222, it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.


The Board does not cite any cases where a physician writing prescriptions in the manner Webb wrote them (i.e., without examining the person named in the prescription or with the intention that someone other than the recipient of the prescription receive the prescribed drugs) constitutes distribution, delivery, manufacture, production of such drugs, or any attempt thereof, under

§ 195.211, and we cannot find any such case. Given that a violation of § 195.211 is a prerequisite for violating § 195.214.1, we cannot find that Webb violated § 194.214.1. Nonetheless, we find grounds for discipline under § 334.100.2(13) because he violated

§ 195.204.1, a drug law of this state.

C. Sections 334.100.2(6) and 334.097.1 and .5

The Board alleges that by failing to document an adequate and complete medical patient record for patients B.M., M.C., C.G., and R.M., including but not limited to the identification of the patient, the date(s) the patient was seen, the current status of the patient, including reason for visit, observation of pertinent physical findings, assessment and clinical impressions of

diagnosis, plan of care and dosage of medications prescribed, and informed consent, Webb is subject to discipline under §§ 334.100.2(6).

Webb admitted that he failed to keep any medical records for M.C., B.M., C.G., and R.M. He therefore violated § 334.097.1. Section 334.097.5 provides:

The board shall not initiate disciplinary action pursuant to subsection 2 of section 334.100 against a licensee solely based on a violation of this section. If the board initiates disciplinary action against the licensee for any reason other than a violation of this section, the board may allege violation of this section as an additional cause for discipline pursuant to subdivision (6) of subsection 2 of section 334.100.
Given that the Board’s disciplinary action alleges reasons other than a violation of § 334.097, subsection 5 gives it the authority to pursue discipline under § 334.100.2(6) for such a violation. Webb is subject to discipline under § 334.100.2(6).

D. Section 334.100.2(4), (4)(h), (5) and (13)

The Board alleges that Webb is subject to discipline under § 334.100.2(4), (4)(h), (5) and (13) by conducting himself in a manner below the proper standard of care for a physician by engaging in conduct that was unprofessional, negligent, harmful, incompetent, and dangerous to the physical health of patients B.M., M.C., C.G., and R.M.

Unprofessional conduct includes “any conduct which by common opinion and fair judgment is determined to be unprofessional or dishonorable.”31 Webb essentially sold prescriptions without regard to the health of the recipients of those prescriptions. We find his conduct to be unprofessional.

The Board alleges that Webb’s conduct was “negligent.” The term “negligent” or “negligence” as used (with respect to health care providers) means the failure to use that degree

of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession.32 We do not see Webb’s deliberate acts as simply failing to use a degree of skill or learning, but infer from his repeated acts of writing prescriptions simply for financial reward as something more than negligence. And, as we note above, even if we found Webb to be negligent, such a finding would not render him subject to discipline under § 334.100.2(5) because discipline under that provision may only be imposed on a finding of gross negligence or repeated negligence, not a single act of mere negligence. We consider the Board’s allegation of repeated negligence below.

Applying the standards for incompetency we applied above, we further find Webb’s conduct to show incompetence, in that his pattern of behavior shows a failure to function properly in his profession. We also agree with the Board that Webb’s writing of a prescription for persons he had not examined or even met was harmful and dangerous to the physical health of the recipients of the prescription.

We also find that Webb is subject to discipline under § 334.100.2(4)(h) because he dispensed drugs or controlled substances to M.C., B.M., C.G., and R.M. without sufficient examination and without establishing a valid physician-patient relationship with them.

Finally, we again find cause for discipline under § 334.100.2(13) because Webb violated a drug law, § 195.204.1, in his behavior regarding patients B.M., M.C., C.G., and R.M.

Therefore, we find cause to discipline Webb under § 334.100.2(4), (4)(h), (5), and (13).

E. Section 334.107

The Board alleges that by (a) prescribing controlled substances in a nontherapeutic nature and failing to keep complete and accurate ongoing records of the diagnosis and treatment plan;

(b) failing to complete records of the controlled substances received, prescribed, dispensed and administered, including the sale or disposal of the drugs by the physician, the name and address of the person receiving the drugs, and the reason for the disposal or the dispensing of the drugs to the person; (c) writing false or fictitious prescriptions for controlled substances; and (d) prescribing or administering, or dispensing controlled substances in a manner that is inconsistent with the provisions of the Missouri drug control act or the Federal Comprehensive Drug Abuse Prevention and Control Act, Webb is subject to discipline under § 334.107.

For the reason set out above, we decline to find cause for discipline under the provisions of § 334.107.


Count III- Failure to Comply with Board’s Subpoena

or to Inform Board of Current Address

The Board alleges that Webb is subject to discipline for his failure to inform it of his current business address. It bases this allegation on the inability of its investigator to serve Webb with a subpoena for the medical records of B.M., M.C., C.G., and R.M., despite making four attempts at service at both his personal residence (5363 Robert St., Shawnee, KS), and a location known to the Board (1500 W. Vivian Rd., Kansas City, MO). He admitted not keeping his listed practice address current and up to date with the Board. Therefore, we find cause for discipline under § 334.100.2(4)(q).

The Board also alleges that Webb is subject to discipline for failure to comply with its subpoena. Without doubt, the Board had the power to subpoena Webb.33 Yet in this case, it claims that Webb is subject to discipline under § 334.100.2(4)(m) for failure to obey a subpoena that the Board never successfully served on him. Successful service of a subpoena is a

prerequisite for enforcement of that subpoena.34 There is little doubt that Webb did not make it easy to be served with the subpoena, and we believe the Board’s assertion that Webb knew the Board wanted the patient records sought by the subpoena, but those facts do not constitute grounds for discipline under § 334.100.2(4)(m).35


Count IV- Repeated Negligence


Repeated negligence is “the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant’s or licensee’s profession.”36 In other words, repeated negligence is being negligent on more than one occasion. We have previously found, in response to the Board’s allegations of negligence in Counts I and II, that Webb’s conduct, while constituting misconduct, incompetence, and illegal conduct, was not negligent. Therefore, we cannot find cause to discipline Webb for repeated negligence.

Summary

Webb is subject to discipline under § 334.100.2(4), (4)(h) and (q), (5), (6) and (13).


SO ORDERED on March 13, 2012.
________________________________

NIMROD T. CHAPEL, JR.



Commissioner

1Killian Constr. Co. v. Tri-City Constr. Co., 693 S.W.2d 819, 827 (Mo. App., W.D. 1985).

2Linde v. Kilbourne, 543 S.W.2d 543, 545-46 (Mo. App., W.D. 1976).

3Research Hosp. v. Williams, 651 S.W.2d 667, 669 (Mo. App., W.D. 1983).

4RSMo 2000. Statutory references are to RSMo Supp. 2011, unless otherwise noted.

5Regulation 1 CSR 15-3.380(1).

6Regulation 1 CSR 15-3.380(7)(C).

7The Board did not provide Webb’s address filed of record with the Board, or whether he filed such an address. We base our finding that he did not keep the Board informed of his current business address on a deemed admission.

8Section 195.017.4(a)j.

9Exhibit F, at 24. “”[T]here was people that [Webb] hadn’t even met that he was giving scripts to. And he would say, he would just ask, ‘I need their number, their phone number, their date of birth, and their address.’”

10Adderall is a trademark for a preparation of amphetamine and dextroamphetamine and is a Schedule II controlled substance pursuant to § 195.017.4.

11Ambien is a brand name for zolpidem, a Schedule IV controlled substance pursuant to § 195.017.8.

12Section 621.045.

13Missouri Real Estate Comm’n v. Berger, 764 S.W.2d 706, 711 (Mo. App., E.D. 1989).

14Harrington v. Smarr, 844 S.W.2d 16, 19 (Mo. App., W.D. 1992).

15Kennedy v. Missouri Real Estate Commission, 762 S.W.2d 454, 456-57 (Mo. App., E.D. 1988).

16Missouri Bd. for Arch’ts, Prof’l Eng’rs & Land Surv’rs v. Duncan, No. AR-84-0239 (Mo. Admin. Hearing Comm’n Nov. 15, 1985) at 125, aff’d, 744 S.W.2d 524 (Mo. App., E.D. 1988).

17Perez v. Missouri Bd. of Regis’n for the Healing Arts, 803 S.W.2d 160, 164 (Mo. App., W.D. 1991).

18Lake v. McCollum, 295 S.W.3d 529, 532 (Mo. App., W.D. 2009), citing MAI 11.06.

19We also note that, while the Board merely alleges negligence with regard to § 334.100.2(5), the statute makes only gross negligence or repeated negligence grounds for discipline. Because the Board’s First Amended Complaint does not allege gross negligence as grounds for discipline, we do not consider it here. We consider repeated negligence under Count IV below.

20Tendai v. Missouri Bd. of Regis’n for the Healing Arts, 161 S.W.3d 358, 369 (Mo. banc 2005).

21293 S.W.3d 423 (Mo. banc 2009).

22Id. at 436.

23Id.

24RSMo 2000.

25RSMo 2000.

26RSMo 2000.

271995 S.B. 125. The law as enacted has no § 334.107. Instead, what was enacted as § 334.106.5 has, rather mysteriously, become § 334.107, without any legislative action that we can find.

28RSMo 2000.

29State v. Trotter, 5 S.W.3d 188, 193 (Mo. App., W.D. 1999).

30MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 990 (11th ed. 2004).

31Perez v. Missouri Bd. of Regis’n for the Healing Arts, 803 S.W.2d 160, 164 (Mo. App., W.D. 1991).

32Lake v. McCollum, 295 S.W.3d at 532.

33Section 536.077, RSMo 2000.

34See Rule 57.09(f) (“Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending.”); § 491.140 (“When a party causing a witness to be summoned, shall have paid or tendered to such witness his legal fees for traveling, and one day's attendance, at the time of summoning such witness, if he fail [sic] to attend he shall be liable to the action of the party for all damages sustained by the nonattendance, unless he show [sic] sufficient cause to justify such absence.”); § 491.150 (“A person summoned as a witness…and failing to attend, may be compelled, by writ of attachment against his body, to appear[.]”) (Emphasis added.).

35We note that the statute cited by the Board, § 334.100.2(4)(m), makes “[f]ailure of any…licensee to cooperate with the board during any investigation” cause for discipline, and there is certainly evidence that Webb did not cooperate with the investigation in this case. However, in both its First Amended Complaint and its Proposed Findings of Fact and Conclusions of Law, the Board specifically states that Webb’s failure to comply with the subpoena constituted grounds for discipline under § 334.100.2(4)(m). We cannot find discipline for uncharged conduct. Dental Bd. v. Cohen, 867 S.W.2d 295, 297 (Mo. App., W.D. 1993).

36Section 334.100.2(5).



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