DAVID M. ODOM, M.D., Appellant,
STATE OF ALASKA, DIVISION OF CORPORATIONS, BUSINESS & PROFESSIONAL LICENSING, Appellee.
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Superior Court No. 3
AN-14-08082 CI Kevin M. Saxby, Judge.
Holen, Anchorage, for Appellant.
C. Auth, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
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 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.
appeal to the superior court, the case was remanded to the
Board for consideration of the doctor's own late-filed
proposal for action. The Board reaffirmed its decision to
revoke the doctor's medical license, and the superior
court affirmed that decision.
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.
FACTS AND PROCEEDINGS
Odom is a bariatric physician 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 Regenerative Medicine,
he has been admitted to practice in six states besides
Alaska. The disciplinary action in this case is his first.
Dr. Odom's Treatment Of S.Q.
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 the final month of pregnancy or within a few
months after giving birth.
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
obesity treatment plan included a prescription for
phentermine, a central nervous system stimulant that
suppresses appetite. Dr. Odom also prescribed a 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.
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 milligram dose of Armour Thyroid, so Dr. Odom
reduced 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.
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 a long time." But on March 6,
2008, about six months after she had stopped seeing Dr. Odom,
she suffered cardiac failure and died.
The Licensing Division's Investigation
S.Q.'s husband filed a complaint with the State of Alaska
Division of Corporations, Business, and Professional
Licensing, suggesting a link between Dr. Odom's treatment
of S.Q. and her death. The Division launched an investigation
and sent S.Q.'s medical records to Dr. Patrick Nolan for
review. Dr. Nolan, an endocrinologist,  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
Odom challenged these conclusions, asserting that Dr. Nolan,
as an endocrinologist, had a starkly different view of weight
loss and natural hormone replacement therapy than doctors
who, like Dr. Odom, practice anti-aging and bariatric
medicine. Dr. Nolan responded by declaring Dr. Odom's
practice "dangerous" and "clearly... a threat
to the public's well being, " though his explanation
was terse; he said in his supplemental report, "I simply
refuse to argue with [Dr. Odom's approach to treatment]
as clearly the evidence is in favor of modern endocrinology
and against Dr. Odom."
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., " 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.
The Administrative Proceedings
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
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
The Parties' Proposals For Action And The Medical
permitted by AS 44.64.060(e),  the Division submitted a
proposal for action in May 2014 that disputed the ALJ's
findings and recommended that the Medical Board impose
disciplinary sanctions. The Division argued that Dr.
Odom's practice fell below the standard of care when he
prescribed phentermine to a patient with cardiomyopathy and
when he prescribed "four times the recommended
dosage" of thyroid hormone to S.Q. for "supposed
hypothyroidism, when her thyroid levels were in fact
normal." The Division asserted that its proposed
conclusions, though contrary to those of the ALJ, could be
reached "based on the evidence contained in the
[ALJ's] proposed decision (including the product
literature), and the Board's own medical expertise."
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.
June meeting the Medical Board discussed Dr. Odom's case
in executive session; the members then voted unanimously, on
the record, to "reject the 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."
Dr. Odom's Appeal To The Superior Court And
Odom appealed the Medical Board's decision to the
superior court. The court held that substantial evidence
supported the Board's factual and disciplinary findings,
but it found a violation of Dr. Odom's due process rights
in the Board's failure to consider his late-filed
opposition to the Division's proposal for action; the
superior court therefore vacated the Board's decision and
remanded the matter to the Board for reconsideration.
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.
Odom appealed to this court.
STANDARDS OF REVIEW
superior court acts as an intermediate court of appeals
reviewing an administrative or agency decision, we
independently review the merits of the administrative
decision,  giving no deference to the superior
court's decision. We review the agency's factual
findings to determine whether they are supported by
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 on
evidence that would not permit a reasonable mind to reach the
conclusion in question."
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.
Statute 08.64.326(a)(8)(A) authorizes the Medical Board to
sanction a doctor if the Board finds after a hearing that the
doctor "has demonstrated professional
incompetence." "Professional incompetence" is
defined by regulation to mean "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 her
patients." Sanctions for professional incompetence
may range from a letter of reprimand or required education to
revocation of a medical 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.
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.
The Medical Board's Decision Does Not Support ...