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Mccabe v. Dept. of Regis. & Education





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding. MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Dr. Gerald E. McCabe, filed an action in the circuit court of Cook County for administrative review seeking to set aside the decision of the medical disciplinary board which had ordered plaintiff's medical license revoked. The trial court affirmed the board's decision, and plaintiff appeals.

On July 28, 1976, defendant, Department of Registration and Education of the State of Illinois, petitioned for a temporary suspension of plaintiff's medical license pending a hearing before the Board. On July 29, 1976, the Department's chief regulatory officer presented evidence ex parte to the Director of the Department to indicate that plaintiff's practice of medicine constituted an immediate danger to the public. The Director temporarily suspended plaintiff's license and scheduled a full hearing before the Board on the Department's complaint against plaintiff.

The Department's 13-count complaint alleged in pertinent part that plaintiff was a duly licensed osteopathic physician and that during the first half of 1976, he had issued 7,208 prescriptions for various controlled substances; and that the number of prescriptions issued was inordinately large and excessive for the number of patients for whom the prescriptions were issued. The complaint further charged that plaintiff had issued 175 prescriptions on a single day, May 14, 1976. It also stated that plaintiff did not issue the prescriptions for legitimate therapeutic purposes; that he issued prescriptions for controlled substances for purposes of maintaining patient addictions and illegal distribution; and that such acts by plaintiff constituted grounds for revocation of plaintiff's medical license, all in violation of sections 16(4) and 16(19) of the Medical Practice Act. (Ill. Rev. Stat. 1977, ch. 111, pars. 4433(4) and 4433(19).) The Board denied plaintiff's motion to dismiss the complaint.

The hearing was conducted and testimony was heard on 15 separate occasions before a medical disciplinary board consisting of seven physicians. On nine of these occasions, less than a quorum of the board was present.

At the hearing, the Department sought to call Tony Marcantante as a witness. He was a patient of plaintiff and had received a number of prescriptions for controlled substances from plaintiff. Marcantante's counsel appeared on his behalf and disputed the validity of a subpoena requiring his client's presence. Counsel stated that if Marcantante were compelled to appear, he would assert his fifth amendment privilege not to testify. When plaintiff was called as an adverse witness by the Department, he also asserted his fifth amendment right not to testify. Three members of the Board expressed disappointment over plaintiff's refusal to testify and one of the members stated that the Board would take into consideration his refusal to testify.

Lawrence B. Slotnik, drug compliance coordinator for the Department, testified that he directed a Mr. Shawn, a Department investigator, to serve a subpoena on Irving Cotovsky, owner of two pharmacies, for all prescriptions filled at the pharmacies between November 1, 1975, and June 1, 1976. He identified the Department's group exhibit as being the prescriptions obtained from the pharmacies by Shawn pursuant to subpoena. Slotnik testified that after making a study of the prescriptions, he turned them over to Dr. John Fultz, the Department's medical co-ordinator.

Dr. Fultz testified that he had reviewed all of the prescriptions contained in the Department's group exhibit. All bore plaintiff's name and address and a signature which usually read "G. McCabe." Fultz testified that the BND number assigned to plaintiff appeared on each of the prescriptions. He explained that a BND number is the number of a practitioner's license to prescribe controlled substances. There were approximately 7,200 prescriptions.

Doris Fischer, a data processor for the Illinois Bureau of Investigation, testified for the Department that she maintained detailed records of all State triplicate prescription blanks for designated controlled substances which were requested by and sent to physicians. She reviewed all 7,208 controlled substance prescriptions contained in the Department's exhibit and stated that 3,142 were written on these triplicate State prescription forms. Such forms are specially ordered by and issued to the physicians in numerical sequence, thereby providing a system of accountability. Fischer compared her records with the presciption forms and concluded that all 3,142 prescription forms had been requested by and sent to plaintiff. On two occasions plaintiff had called the witness to inform her that he had not received the triplicate forms. In each case, he called back a few days later to say that the forms had arrived. Fischer had never received any notification from plaintiff that any of the specially ordered prescription forms had been lost or stolen.

Luther Senter, a handwriting expert for the Federal Bureau of Investigation, testified for the Department that he had analyzed 5,944 of the 7,208 controlled substance prescriptions. Due to time constraints he was unable to analyze the remaining prescription forms. Senter also had examined handwriting of plaintiff; the handwriting lacked identifying characteristics, and the comparison was inconclusive. Senter stated, however, that in 2,897 prescriptions the handwriting in both the body of the prescription and the signature was within the range of plaintiff's writing ability. As to the remaining 3,047 prescriptions, the handwriting in the body of the form was inconsistent with plaintiff's ability but the signature was consistent with plaintiff's handwriting ability.

Dr. William E. Thornton, a physician and psychiatrist, was called as a witness by the Department. He testified that he was a consultant for the National Institute of Drug Abuse and had been medical director for the Illinois Drug Abuse Programs. He also was an associate professor of psychiatry at the University of Illinois School of Medicine. He testified that he had published approximately three dozen times on topics concerning substance abuse.

Dr. Thornton testified as to the nature, use, characteristics and normal therapeutic dosage ranges for controlled substances prescribed by plaintiff, including the drugs dilaudid, preludin, morphine sulfate (heroin) and ritalin. He also testified as to factors altering maximum dosage limits. These factors included such matters as the interaction of the controlled substance with other drugs, a patient's tolerance, effects of addiction or long term use, and oral or intravenous methods of administration. Dr. Thornton then examined the prescriptions for certain controlled substances given to particular patients of plaintiff from May 14, 1976, to June 1, 1976. He concluded that in the case of Gerald Berkowitz, the amounts of dilaudid prescribed far exceeded normal dosage ranges for all individuals except addicts. The amounts prescribed for Berkowitz would be fatal to most nonaddicted individuals.

Dr. Thornton also reviewed the prescriptions issued by plaintiff to Alfred Glenn. The prescriptions were for various amounts of morphine sulfate, preludin and ritalin. The amounts of morphine sulfate prescribed were grossly outside the normal dosage range for a nonaddicted individual, and Dr. Thornton knew of no medical reason for the great amount prescribed. Dr. Thornton noted that the morphine sulfate and ritalin prescriptions for Glenn were often issued on the same day. There was no apparent pattern for issuing prescriptions to Glenn or indications that the dosages were being progressively reduced.

Dr. Thornton then reviewed the prescriptions issued to Marcantante for morphine sulfate. He testified that the dosage and frequency of the prescriptions would be potentially lethal and excessive to an individual not addicted to the drug and concluded that the prescriptions given also would be inconsistent with detoxification or an addiction maintenance program. Dr. Thornton was aware of no drug abuse program which would utilize the large quantities prescribed for Marcantante. He stated that the amounts of morphine sulfate prescribed would be excessive even for an individual addicted to the drug.

Dr. Thornton next examined the prescriptions issued to Margaret Gonzales for dilaudid, morphine sulfate and preludin. The dilaudid prescriptions were excessive for a nonaddicted individual, and there was no therapeutic purpose ...

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