Odom v. State

         Appeal 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.

          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.

          OPINION

          MAASSEN, Justice.

         I. INTRODUCTION

         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 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 decision.

         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 physician^[1] 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, ^[2] 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;^[4] peripartum cardiomyopathy by definition begins during the final month of pregnancy or within a few months after giving birth.^[5]

         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.

          The obesity treatment plan included a prescription for phentermine, a central nervous system stimulant that suppresses appetite.^[6] Dr. Odom also prescribed a natural thyroid hormone drug - Armour Thyroid^[7] - for hypothyroidism.^[8] 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 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.

         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 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 endocrinologist, ^[9] 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. Odom."

         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., " 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.^[10]

         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 warranted.

         D. The Parties' Proposals For Action And The Medical Board's Decision

         As permitted by AS 44.64.060(e), ^[11] 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."

         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 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. 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.

         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 administrative decision, ^[12] giving no deference to the superior court's decision.^[13] We review the agency's factual findings to determine whether they are supported by substantial evidence.^[14] Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."^[15] "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.' "^[16] The substantial evidence standard "reflects the prudence of deferring to a state professional board's special competence in recognizing violations of professional standards."^[17] "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."^[18]

         "We review questions of law, including the appropriate standard of proof, using our independent judgment."^[19] We review the agency's selection of a particular disciplinary sanction for abuse of discretion.^[20]

         IV. DISCUSSION

         Alaska 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."^[21] "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."^[22] Sanctions for professional incompetence may range from a letter of reprimand or required education to revocation of a medical license.^[23] 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.^[24]

         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.

         A. The Medical Board's Decision Does Not Support ...