Petition — Elliott v. Arkansas State Medical Board

Supreme Court Of The United States

OCTOBER TERM, 1977

NO. VTS-76

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Vv.

ARKANNSAS STATE MEDICAL BOARD ............ Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

Scott MaNaTT

Box 453

Corning, Arkansas 72422

PARTLOW AND Mays, P.A.

311 North 2nd St.

Blytheville, Arkansas 72315

By: Scotr ManatTtT

Attorneys for Petitioner

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CASE CITATIONS

Arkansas State Medical Bd. v. Elliott, 563 S.W.2d

427, rehearing denied, April 17, 1978 ...........

Ferguson v. Gathright, 415 U.S. 933, 39 L. Ed. 2nd

491, 94 S.Ct. 1447 2... cece cc ce eens

Wall v. American Optemetric Ass’n., 95 S.Ct. 166,

166, 419 U.S. 888, 42 L. Ed. 2nd 134 ............

Bowman Transportation, Inc. v. Arkansas Best

Freight System, 95 S.Ct. 438, 419 U.S. 281, 42

i EE ia Said eben eawneeees éninen ies

Hortonville Joint School District No. 1 v. Hortonville

Education Association, 96 S.Ct. 2308, 426 U.S.

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Supreme Court Of The United States

OCTOBER TERM, 1977

NO.

FOE Gy ME DE eo isvvccvccceccqencacenss Petitioner

v.

ARKANNSAS STATE MEDICAL BOARD ............ Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

Petitioner’ prays that a writ of certiorari issue to

review the decision of the Supreme Court of Arkansas in

the above styled case.

OPINIONS BELOW

The March 13, 1978 opinion of the Supreme Court of

Arkansas is reported at 563 S.W.2d 427 and at Appendix I

of this petition. The opinion of the Circuit Court, civil divi-

sion, Chickasawba District of Mississippi County, Arkan-

sas is not reported but is set forth as Appendix II. The

decision and order of the Arkansas State Medical Board in

the matter of John Q. Elliott, M.D., case No. C-76-200 is not

reported but is Appendix III.

1The petitioner is John Q. Elliott, M.D., resident of Blytheville,

Arkansas.

2

JURISDICTION

The opinion of the Supreme Court of Arkansas was

entered on March 13, 1978. The Supreme Court of Arkansas

denied a timely filed petition for rehearing, Appendix IV,

which was denied April 17, 1978, Appendix V. On May 1,

1978, the Supreme Court of Arkansas entered its order

staying mandate pending appeal, Appendix VI.) At this

time no petitions for extension for filing this petition have

been entered.

QUESTIONS PRESENTED

1, Whether a doctor of medicine at an administrative

hearing involving the question of suspension of said phy-

sician’s license is denied due process of law if not informed

of the nature and cause of the accusations; if not confronted

with the witnesses against him; if not given the assistance

of counsel for his defense or advised of his right to counsel.

2. Whether a stated determination by a voting mem-

ber of the administrative hearing board, prior to the close of

evidence states his opinion of guilt and recommendation of

suspension is a violation of the equal protection of the law

and due process of law provisions of the Constitution of the

United States.

3. Whether a notice of a hearing specifically charging

that prescriptions for schedule two drugs excessively and

excessive number of prescriptions for schedule two drugs

and a further allegation of “guilty of grossly negligent

malpractice” in prescribing and dispensing said drugs with-

out any particularization of misconduct or allegation of

(1) Petition for Siay of mandate pending appeal, Appendix VII.

misconduct with particular certainty is violative of the due

process of law and equal protection clause?

4, Whether or not unfounded hearsay and testimony

replete with conclusions, conjecture, speculation and guess

work not objected to at the administrative hearing (without

counsel) but timely raised on appeal to the Supreme Court

of Arkansas are a denial of due process of law and equal

protection of the law as to this petitioner?

5. Whether an administrative hearing held or con-

ducted in such a way as to curtail or limit explanation or

denial of an opportunity to be heard is a denial of the due

process and the equal protection of the laws as to this

petitioner?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the right to be informed of the

nature and cause of the accusation, confrontation of wit-

nesses and assistance of counsel guaranteed by the Sixth

Amendment to the Constitution of the United States:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy trial and public trial, by an im-

partial jury of the state and district wherein the crime

shall have been committed, which district shall have

been previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have

compulsory process for obtaining witnesses against

him; to have compulsory process for obtaining witness-

es in his favor, and to have the assistance of counsel

for his defense,”

- — = = ey

4

and the Due Process and Equal Protection of the Laws’

Clauses of the Fourteenth Amendment to the Constitution

of the United States:

“1, All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein

they reside, No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state deprive

any person of life, liberty or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

and the due process of law guaranteed under the Fifth

Amendment to the Constitution of the United States:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law, nor shall private property

be taken for public use, without just compensation.”

5

STATEMENT

On October 27, 1976, the State Medical Board served

notice on John Q,. Elliott, M.D. to appear and show cause

why his license to practice medicine in the State of Arkansas

should not be revoked. Said order appears as Appendix

VII, Neither the order nor the record indicates that there

were any exhibits attached to the appear and show cause

order, Following said hearing and an adverse determination

by the State Medical Board, a timely appeal was taken to

the Circuit Court of the Chickasawba District of Mississippi

County, Arkansas, the Honorable A. S. Harrison presiding.

Upon the matter being submitted to the Circuit Court,

the State Medical Board’s order was reversed, the said court

making a particular finding that the evidence as read the

court finds that there was a violation of the doctor’s consti-

tutional rights and due process, That an excessive authority

was exercised by the board in suspending the doctor for

four months based upon the evidence which was lodged in

the Circuit Court.’

The Circuit Court further held’ in reviewing the testi-

mony of the two witnesses, said testimony was replete with

conclusion, conjecture, speculation and guess work, revers-

ing the State Medical Board and staying further action of

the Medical Board pending an appeal to the Arkansas

Supreme Court, which appeal was perfected. The Circuit

Court was reversed and the order of the State Medical

Board was reinstated, The Supreme Court opinion reversed

and remanded the matter, Appendix I.

The petitioner has exhausted all state remedies, a

2 Page 16 of the record lines 1 thru 5,

5 Page 12 of the record lines 12 thru 14,

petition of rehearing was properly and timely filed, denied

April 17, 1978, less than ninety (90) days prior to the filing

of this petition.

REASONS FOR GRANTING THE WRIT

This case involves five constitutional issues, all of

which are Amendments Five, Six and Fourteen. First of

which is under the Fifth Amendment in that the doctor at

an administrative hearing involving the question of suspen-

sion of his license (a penal provision) through the guise of

a civil proceeding was denied due process of law under the

Fifth Amendment having not been informed of the nature

and cause of the accusation against him with particular

certainty nor given an opportunity to be confronted with

witnesses, nor been advised of his right to the assistance of

counsel for his defense and the other miranda rulings

under the Sixth Amendment when licensure or suspension

of licensure (a very penal provision) of the various regula-

tory agencies is to be invoked to the detriment of the doctor,

this petitioner.

It is the doctor’s contention and belief that the proceed-

ing was of a penal or criminal nature much more so than

of a civil nature. That the failure of the Arkansas State

Medical Board to advise this petitioner of his constitutional

right, to advice of counsel or that what he says could and

would be used against him, that he had a right to cross

examine witnesses, that he had a right to confront the

witnesses to appear against him, that he had a right to call

witnesses in his own behalf, and that he was entitled to an

allegation of particular certainty as to what charges were

being raised at said hearing. The failure to be so informed

by the administrative hearing officers resulted in a denial

7

of the doctor’s constitutional right under the Fifth and

Sixth Amendments to the Constitution.

The entire proceeding appears to be criminal or penal

in scope as opposed to civil, noting “the present charge”

(R. 68). The real question then being is, “whether or not

the penal characteristics of the loss of licensure or suspen-

sion is such that same would be classified as a quasi

criminal case, Ferguson v. Gathright, 415 U.S. 933, 39 L. Ed.

2nd 491, 94 S.Ct. 1447, noting the denial and lack of infor-

mation regarding the right to counsel. The record shows

clearly that the State Medical Board was represented by

counsel and that no comment or other suggestion was ever

made to Dr. Elliott of his right to counsel or whether or not

he desired counsel.’*

Further it is the petitioner’s claim that had the doctor

been advised of his right to counsel or had he appeared with

counsel the vagueness and ambiguity contained within the

order to show cause, the allegations of particularization of

conduct would have been made sufficiently certain to such

extent that the doctor would have been able to put up a well

and true defense or offer a ready explanation or as a bare

minimum would have had the opportunity to do so.

Further, the case involves the question of whether or

not a stated determination by a voting member of the

administrative hearing board, prior to the close of evidence,

of said member’s opinion of guilt and recommendation of

suspension and an absolutely unequivocal statement of

revocation of a DEA (Drug Enforcement Agency Number)

with no other consideration to the other voting board

members, the hearing continuing following said statement

4Note the opening remarks of the State Medical Board Counsel

Record — page 68 and the absence of warnings or advise.

is a violation or a denial of the equal protection of the laws

under Amendment Fourteen, subsection 1 of the Constitu-

tion and of the due process clause of the Fourteenth

Amendment and of the guarantee of constitutional fairness

contained within said Amendments. In reference thereto,

this point was timely raised in both the Circuit Court and

on appeal to the Arkansas Supreme Court. The Secretary

and voting member of the Arkansas State Medical Board,

prior to the close of evidence (R. 79) stated “I think this

board is going to have to suspend your license this is my

personal feelings. I don’t think you are going to get out

from under these people unless we do,” Dr. Joseph Verser®

speaking. Further the same Dr. Joseph Verser continuing

to speak (R. 80), regarding the question of taking advantage

of a doctor, “I know there are not anymore because I know

one they are going to take your DEA and I would personally

vote to suspend your license. I don’t know what the board

is going to do but you are not going to get out of here with

a DEA. I know the board well enough to know you are

going to lose your DEA. I don’t know how they are going

to vote on whether to suspend your license but I would say

to suspend your license and wake up the town of Blythe-

ville to the fact that this board has taken action and will

wake up some more of those people who have been im-

posing on you.” Following said statement the hearing

continued (R. 81 and R. 82). It is the petitioner’s contention

that the basis and very basic concepts of Amendment

Fourteen, clause 1, were clearly violated by the board

member, same being a voting member, making such a

flagrant open statement prior to this petitioner being given

an opportunity to call in any witnesses; prior to inquiring

5Dr. Joseph Verser is the Secretary of the State Medical Board and

Chairs the proceedings.

of this petitioner of whether or not he had anything to say

in his own behalf; nor was this petitioner given any op-

portunity to explain any allegations whatever to the State

Medical Board.

This Court has ruled in Wall v. American Optometric

Ass’n, in 95 S.Ct. 166, 419 U.S. 888, 42 L. Ed. 2nd 134 that

under the Fourteenth Amendment a fair and impartial

tribunal requires at least that trier of fact be disinterested

and that he also be free from any form of bias or predisposi-

tion regarding outcome of the case and procedure must

not only be fair but every appearance of complete fairness

must also be present. This Court again in Bowman Trans-

portation, Inc. v. Arkansas Best Freight System, 95 S.Ct.

438, 419 U.S. 281, 42 L. Ed. 2nd 447 held that Amendment

Fourteen, subsection 1, forbids agency to use in evidence in

a way that forecloses opportunity to offer contrary presen-

tation. This Petitioner maintains that due process of law

requires that an administrative hearing be fundamentally

fair and just. This Court addressed the question of persona!

animosity in Hortonville Joint School District No. 1 v.

Hortonville Education Association, 96 S.Ct. 2308, 426 U.S.

482, 49 L. Ed. 2nd 1. It is petitioner’s contention that under

the Fourteenth Amendment that the statement made by

Dr. Joseph Verser was a predetermination of guilt, a pre-

disposition of the state of mind of Dr. Verser and a precon-

ceived intention on the part of said Dr. Verser to suspend

or revoke this petitioner’s license irrespective of the fairness

of the hearing, absolutely and unequivocally to take his

DEA number for a period of four months. That this very

comment, prior to the conclusion of the evidence, was made

by motion by a member of the State Medical Board which

was unanimously approved, without ever asking this

10

petitioner if he had anything to say, and witness to call, or

any explanation of any kind.

It is the petitioner’s contention and belief that this

statement was prejudicial to the rights of this petitioner.

That he was denied a fair and impartial determination

before an administrative board under Amendment Fourteen

and this denial worked to his continued detriment and

denial of his right to a fair and impartial determination as

guaranteed to all under our constitution and its amend-

ments.

The next point is whether a hearing notice which

simply alleges that schedule two drugs were given exces-

sively, absent any allegations of particular certainty as to

what drug was given, when and what numbers were in-

volved and how many numbers of said drugs are needed

to make said drug an excessive amount with no particular-

ization of conduct to such extert that this doctor did not

have any prior warning as to the nature and type of charge

that was being lodged against him.

These things taken together are a violation of the due

process of this petitioner. That he was not given an oppor-

tunity to know the exact nature of the charges lodged

against him, There was no particularization or bill of

particulars as to the alleged misconduct. There was no

determination by anyone as to what constitutes exces-

sive number of prescriptions. The only record contained

in the transcript of the proceedings is that more pre-

scriptions were given than could be counted on “one

hand”, (R. 74). While the petitioner recognizes that

said language may have been figuratively given, nonethe-

less, it would denote a very low number. That the provisions

as to what is excessive and what is grossly negligent

11

malpractice is so vague and uncertain that no physician

acting under said guidelines can determine what constitutes

negligent malpractice or what constitutes excessive writing

of prescriptions. As a result thereof, this petitioner and all

physicians similarly situated are at the personal whim of

the various regulatory boards to determine after the fact

what is excessive, excessive to be then defined by the

various state boards of medical licensure. This, in and of

itself thwarts the backbone of Amendment Fourteen,

section 1 and due process.

The next point relied on by petitioner for granting this

writ is that as a result of the lack of counsel, petitioner had

no opportunity to be heard, rampart hearsay, unfounded

conclusions, conjecture and speculations, together with

guess work, went into the record. See testimony of Wood-

row T. Little (R. 69) “The prescriptions I picked up in the

area that have been verified, (not authenticated) as bear-

ing Dr. Elliott’s signature.” The petitioner maintains that

upon a proper objection said conclusionary statement

would have been barred as hearsay and would have re-

quired some degree of proof. Further the said Woodrow T.

Little testified (R. 69) “I noticed that some of these pre-

scriptions for the amphetamine type drug and were two

for the same person on the same day.” (Conclusion and

Speculation) But the record (R. 79) clearly shows that the

double prescription had been reported previously by peti-

tioner to law enforcement and said individual was held on

a fugitive warrant. As to the other allegations, no determi-

nation was made of the medical necessity for the giving of

said prescriptions. The said Woodrow Little further testi-

fied, “that Dr. Elliott’s prescribing did contribute to the

illegal drug traffic in that area.” (R. 70) Petitioner states

that same is nothing more than a conclusion on the part of

12

Mr. Little and is supported by no other evidence, matter,

facts or things in the transcript or any of the records sent

up. Further at the same page (R. 70) the record goes into

the question of a recap and a recap or summary of the

investigation of Mr. Little, which was submitted before the

board which summary was not cross examined, was not

read, was not identified, nor could the doctor have been

reasonably placed on notice as to what evidence, if any, was

going into the record. There were no allegations or state

ments contained in the testimony of Mr. Little indicating

any misconduct. The attorney for the State Medical Board

makes reference to some agreement on Mr. Little showing

seven prescriptions to “the same individual” with no allega-

tion nor supported measure that there was anything wrong

or misconduct in giving said prescriptions nor was the

patient’s testimony given nor available as to whether the

patient had a medical necessity for said prescriptions or

not, but which was determined a medical necessity (R. 71-

72).

Further, R. 71, Mr. Warren, attorney for State Medical

Board, made a conclusionary statement to the Board, “We

put it in here because he switched to some other drug.” Dr.

Elliott, from that point continuing (R. 71) clearly showed a

medical necessity for the continuation and giving of said

drug, said patient having had chemotherapy and various

other hospitalization with exorbitant weight losses having

been treated and was determined as a medical necessity. A

picture was introduced and shown by Dr. Elliott, which

picture is not in the records and files. Given the one oppor-

tunity to explain any prescriptions the doctor testified that

his prescription blanks had been stolen and that this report

was made to proper authorities. (R. 72).

13

Further, Mr. Little testified that he had an isolated

individual that had been turned down at five different drug

stores and who people had indicated or told him they

wouldn't touch with a ten foot pole and why. (R. 73). The

testimony therein is absolute hearsay as to what someone

other than a party to this hearing had told an investigator

in derogation of the rights of Dr. Elliott, this petitioner.

The next witness was Sam Probasco who stated that

Pharmacist had told him (R. 74) proceeded to continue as to

what the people had told him. Further the said Mr. Pro-

basco stated that Dr. Elliott was the only doctor in Blythe-

ville writing more prescriptions of Quaalude 300 than could

be counted on one hand. Further Mr. Probasco stated that

all his sources were a “seedy looking group as a whole,”

(R. 74). Further Mr. Probasco continued at R. 75 stating

that he had proof of various other matters but said proof

was never submitted nor offered to the Arkansas State

Medical Board. Questions were asked leading and calling

for conclusions (R. 75) regarding whether or not Dr. Elliott

was a patsy. In the transcript at R. 75 some appearance

seems to be that Dr. Elliott is speaking and that apparently

it is the testimony of someone other than Dr. Elliott.

Dr. Verser made a leading comment totally out of line

at R. 76, “they tell me this is a wonderful drug, that they

can take one of them and shack up a week” which drew a

response from this petitioner in what appeared to be a

joking or informal moment in said hearing, which a great

® Note: Throughout the entire record, only two witnesses were called,

who time and again stated hearsay matters; not once in the entire

record was a witness called who made the statement or to whom the

statement was attributed; nowhere in the record is a name of the

source used except by vague reference to a class or group.

14

deal of weight was placed on by the Supreme Court of the

State of Arkansas. The record goes on and on with similar

testimony, none of which is supported by the persons who

make the statements and none of which is supported by

any evidence, no exhibits, no statements, evidence or other

indications that same was for other than a medical need,

but were totally replete with conclusion, conjecture,

speculation and guess work by the “Investigators”. No

person who had any information as to the legality or

illegality of the prescriptions of the medicines prescribed

by this petitioner was ever called before the board. No-

where in the record is there any statement that any of the

medicines were given for other than a medical purpose.

Nowhere in the record is there a statement as to any patient

that the prescription was excessive.

It is common knowledge in Arkansas that Blytheville,

Arkansas, is a good sized city maintaining an air base in

said city, together with being very close to Osceola, Arkan-

sas, a very populous center. As a result, given population,

practice of a given physician, prescription habits and work-

ing hours, not one page of evidence is submitted anywhere

within the record not based on hearsay or foundered on

conclusion of speculation by the investigators. No tangible

evidence, no circumstantial evidence other than hearsay

is mentioned anywhere within the record which denied this

petitioner any redress whatever nor upon the conclusion of

the evidence was Dr. Elliott offered an opportunity to add,

explain, or take away from any of the hearsay reference,

etc. On one or two occasions, the doctor in the course of the

proceedings satisfactorily explained any particularization

which may have been brought up for the first time at

15

said hearing. It is the petitioner’s contention that rampant

hearsay, conjecture, speculation and guess work were

totally unfounded without any proof either direct or in-

direct and thereby denies this petitioner of the due process

of laws clause of the Fourteenth Amendment of the

Constitution, equal protection of the laws of the Fourteenth

Amendment, due process of the Fifth Amendment and due

process of the Sixth Amendment. That had the Fifth and

Sixth Amendments rights been granted (advice of counsel)

none of the testimony submitted in the record would have

been allowed even under the most lax and informal ad-

ministrative hearings. Petitioner recognizes that it is

difficult to believe that absolutely no evidence, save hear-

say, speculation, innuendo and guess work appears within

the entire record and therefore has designated the entire

record to be filed herewith.

The next point is whether an administrative hearing

held or conducted in such a way as to curtail or limit

explanation or denial of an opportunity to be heard is

violative of the due process clause and the equal protection

of the laws clause which matter has been well discussed

above and to avoid repetition states this point for review.

Petitioner respectfully represents to the Court that due

process and fundamental fairness are one and the same

thing. An opportunity to be heard by a fair and impartial

hearing officer or board. This opportunity was denied to

this doctor. The denial of the constitutional matters raised

herein were more beautifully set forth in the formal judg-

ment of the Circuit Court of Chickasawba District, Missis-

sippi County, Arkansas, than can be herein included.

16

Noting particularly the Court held that the denial of

counsel, the basic concepts of American Jurisprudence and

of due process have been denied. The Circuit Court ruled

correctly (R. 15) that the State Medical Board was attack-

ing a man’s professional conduct and subjecting an individ-

ual to extreme public ridicule and abuse, doing great

injury, harm and damage to his reputation which could

result in action of the public generally, that even through

cleared, might be damaging to the remainder of the person’s

days.

Further the Circuit Court found in reversing the board

that there was a violation of the doctor’s constitutional

rights and due process. (R. 16) That an excess of authority

by the board was exercised in suspending the doctor for

four months based upon the evidence which had been

lodged. (R. 16) That the allegations were not supported by

substantial evidence. (R. 16) It is the petitioner’s conten-

tion and belief that the Circuit Court for the Chickasawba

District, Mississippi County, Arkansas, was correct when

the court stated further in examining and reviewing the

testimony of the two witnesses that did appear (R. 12, lines

13-21) their testimony is replete with conclusions, conjec-

ture, speculation and guess work and giving it the greatest

benefit that is entitled to in a hearing before the board in

such an administrative hearing, this Court could not say

that to do justice in this case, either on behalf of the Arkan-

sas State Medical Board or the doctor, that the greatest

portion of the evidence could really be given much, if any,

consideration because of those facts.

Petitioner respectfully represents that said statement

17

is a fair statement and that the Arkansas Supreme Court

committed error in reversing the learned judge and that

this petitioner’s due process rights were thereby denied

under the Fifth and Sixth Amendments and the equal

protection of the laws was denied to this petitioner under

the Fourteenth Amendment and the due process clause of

the Fourteenth Amendment.

CONCLUSION

The petitioner contends that when taken together the

denial of the rights, the denial of counsel, the lack of coun-

sel, the leading and suggestive informa! attitude of the

administrative hearing, the total void of intangible evi-

dence, the conjecture, speculation, hearsay and conclusion

and the predisposed attitude of one member of the board is

such that this petitioner did not receive a fair and impartial

hearing before the Arkansas State Medical Board and

respectfully submits that his constitutionally protected

rights of equal protection of the laws, due process of law,

miranda warning and due process of the Fifth and Sixth

Amendments have been denied and respectfully prays that

this writ be granted not only for himself as petitioner but

to restore to every person substantial justice, fair treatment,

fair consideration, fair play and equal protection of the law

before governmental administrative agencies. That this

Court should grant this writ and serve notice that certain

fundamental fairness, justices and constitutional safeguards

are not only required in judicial determinations but also

18

before all boards, agencies and review proceedings of every

kind, character and description and that said rights shall be

held inviolatile and that all safeguards of constitutional due

process can be and will be preserved for all Americans by

issuance of certiorari to review the March 13, 1978 decision

of the Supreme Court of Arkansas in this case.

Respectfully submitted,

Scotr MANATT

Box 453

Corning, Arkansas 72422

PARTLOW AND Mays, P.A.

311 North 2nd St.

Blytheville, Arkansas 72315

By: Scorr MANATTY

Attorneys for Petitioner

19

Appendix

APPENDIX “1”

DIVISION 2

SUPREME COURT OF ARKANSAS

No, 77-258

Opinion Delivered March 13, 1978

ARKANSAS STATE MEDICAL BOARD .............. Appellant

v.

OE Se UU, hci i vicu's es soetesencevces Appellee

APPEAL FROM MISSISSIPPI CIRCUIT COURT

CHICKASAWBA DISTRICT

A. S. Harrison, Judge

Reversed and Remanded

Con.ey Byrn, Associate Justice

The Arkansas State Medical Board suspended the

license of Dr. John Q. Elliott on the basis that the doctor

had written prescriptions of Quaalude 300 excessively and

had written an excessive number of prescriptions of

Quaalude 300 for some persons. On appeal the circuit court

reversed the decision of the Board because the administra-

tive finding of the Board was in violation of Dr. Elliott's

constitutional rights, in excess of the Board’s statutory

authority and was not supported by substantial evidence of

record,

The record shows that Dr, Elliott was notified by the

20

Board pursuant to the Administrative Procedure Act, Ark.

Stat. Ann. §5-708 (Repl. 1976), to appear and show cause

why his medical license should not be revoked. The notice

specifically charged that Dr. Elliott had written prescrip-

tions for Schedule II drugs excessively and had written an

excessive number of prescriptions for Schedule II drugs for

some persons.

Dr. Elliott personally appeared at the hearing and

participated therein without making objection to the

charges or requesting that they be made more definite and

certain.

The authority of the Board to revoke or suspend a

license is given by Ark. Stat. Ann. §72-613 (Supp. 1977),

which authorizes the Board to act when a license holder has

been guilty of “unprofessional conduct.” The term “unpro-

fessional conduct” is defined as “grossly negligent or

ignorant malpractice.” “Malpractice” is defined by a regula-

tion of the Board to include any professional misconduct,

unreasonable lack of skill or fidelity in professional duties,

evil practice, or illegal or immoral conduct in the practice

of medicine or surgery. The reguation says that “Malprac-

tice” should include but not limited to “(4) the prescribing

of excessive amounts of controlled substances to a patient

including the writing of an excessive number of prescrip-

tions for an addicting or potentially harmful drug to the

patient.”

The criteria for Schedule II drugs, Ark. Stat. Ann.

§82-2606 (Repl. 1976), is as follows:

“The Coordinator shall place a substance in Schedule

II if he finds that:

21

(1) the substance has high potential for abuse;

(2) the substance has current accepted medical

use in treatment in the United States, or currently

accepted medical use with severe restrictions; and

(3) the abuse of the substance may lead to severe

psychic or physical dependence.”

At the hearing which was held on December 9, 1976,

it was shown that Dr. Elliott had been before the Board on

November 7, 1974, at which time he had agreed not to write

prescriptions for amphetamines. Lieutenant Robert Womack

of the Osceola Police Department had filed a complaint

against Dr. Elliott with the Arkansas Department of Health.

Samuel R. Probasco, with the Drug Abuse Division of

the Arkansas State Department of Health, had investigated

Dr. Elliott. His investigation revealed that Dr. Elliott was

the only doctor in Blytheville who was writing more pre-

scriptions for Quaalude 300 than could be counted on one

hand. He found that the drug stores in West Memphis had

turned down Dr. Elliott’s prescriptions “always for one

reason — youngsters, no physical need.” All of the pharma-

cists in both Osceola and Blytheville had asked for help be-

cause of pure proliferation of the Quaalude 300 drugs.

Between 7-21-76 and 11-13-76, one drug store in Blytheville

filled 92 prescriptions written by Dr. Elliott, all for Quaa-

lude 300 (30 units) except three. Mr. Probasco mentioned

the case of a black male who was arrested in Osceola who

had in his possession two prescriptions for Quaalude 300, —

one under the name of Michael Johnson and the other one

under the name Will Jones — both prescriptions having the

same address. Mr. Probasco described the Quaalude 300

pills as having a street value from $3.00 to $4.00 per pill.

22

In response to a statement from witness Probasco that

Dr. Elliott had become a patsy to the people who traffic in

drugs Dr. Elliott stated, “Not anymore. Since two weeks

ago, three days ago.”

Dr. Elliott testified that some of his prescriptions were

for kids he had known. That the people who have used

Quaalude 300 told him that mixed with alcohol the drug

heightens their sexual performance. He also admitted that

he had given the two prescriptions to the black man. When

he questioned the man the second time, the man told him

he was the brother of the one that had been there before.

However, in response to questions from members of the

Board, Dr. Elliott stated that when the black male came in

“he wanted something for sleep, didn’t want anything

wrong, he said.”

We find ample evidence, evidence in fact corroborated

by Dr. Elliott, to substantiate the Board’s findings. Dr.

Elliott had been prescribing Quaalude 300 for both young

and old people and to persons who did not have anything

wrong with them. By the doctor’s own admissions, the

Board had ample evidence from which to conclude that he

had been a patsy for persons who traffic in illegal drugs.

Furthermore, the proof shows that all of his prescriptions

were for 30 units of Quaalude 300 and that he had given two

prescriptions to one black male under two different names.

It follows that the circuit court was in error when it held

to the contrary.

Appellee contends that the circuit court should be

affirmed because there is no law prescribing the number

of drugs that can be prescribed for any particular patient

and no law prescribing what constitutes the excessive

23

writing of prescriptions for any one patient. We find no

merit to this contention. Subsection (e) of Ark. Stat. Ann.

§72-613 (Supp. 1977), defines unprofessional conduct to

mean “violation of the laws of the United States or the

State of Arkansas regulating the possession, distribution or

use of narcotic or controlled drugs classed in Schedules 1

through 5 of the Arkansas Controlled Substances Act... .”

Also subsection (g) of the statute, supra, defines “unpro-

fessional conduct” to include “grossly negligent or ignorant

malpractice.” The giving of two prescriptions to the same

man under two different names who admittedly had noth-

ing wrong with him would certainly fall within the

category of “negligent or ignorant malpractice.” Further-

more, can one admittedly be a patsy to persons dealing in

the drug traffic and not be guilty of “unprofessional

conduct” within the meaning of Ark. Stat. Ann. §75-613

supra? We think not.

Appellee contends that the notice given him denied him

his constitutional rights because it did not tell him that he

had the right to have counsel and the right to present and

cross-examine witnesses. We find no merit to this conten-

tion. In the first place the notice complied with the

Administrative Procedure Act, Ark. Stat. Ann. §5-708

(Repl. 1976), which superseded Ark. Stat. Ann. §72-614

(Repl. 1957). In the next place appellee has cited no

authority that places upon an administrative board the same

concern for an individual that is required in a criminal

prosecution. We note that the Administrative Procedure Act

gives to the respondent in an administrative proceeding the

right to appear by counsel and to present and cross-examine

witnesses, but we know of no authority that places upon

the administrative board the duty to warn respondents of

24

such rights. In fact the authorities appear to be contrary to

appellee’s position, see Annotation 1 L. Ed. 2d 1865,

Appellee also suggests that the hearing officer or one

of the participants in the hearing was biased because he

made a pronouncement prior to the conclusion of the hear-

ing that appellee’s license should be suspended. Since this

pronouncement of the Board member was made after Dr.

Elliott had admitted to being a patsy to people dealing in

the drug traffic; had admitted to prescribing the drug to

young people to heighten their sexual performance; and

had admitted to giving two prescriptions to the same man

under two different names, we cannot say that the Board

member’s comment disqualified him under Ark. Stat. Ann.

§5-709 (Repl. 1976).

For the reasons herein stated the order of the circuit

court is reversed with directions to reinstate the order of

the Board.

Reversed and remanded.

We agree: Harris, C.J., Fogleman and Holt, JJ.

25

APPENDIX “II”

IN THE

CIRCUIT COURT OF MISSISSIPPI COUNTY,

ARKANSAS

EPR, COUN GS, TRADOEE oo ccccacescccecscocsveceve Petitioner

vs, No, C-76-200

ARKANSAS STATE MEDICAL BOARD ...........+. Respondent

OSCEOLA, ARKANSAS, MONDAY, JUNE 13, 1977

9:30 O'Clock A.M,

(REPORTER’S NOTE: Other matters heard).

THE COURT: This is Case Number, Civil Case, Number

C-76-200, on appeal, Circuit Court Civil Division,

Chickasawba District of Mississippi County, Arkan-

sas. The style of the case is Dr. John Q. Elliott, Peti-

tioner, versus The Arkansas State Medical Board,

Respondent.

All right, gentlemen.

oe ek eae

THE COURT: All right. Anything else?

MR. PARTLOW: No, Your Honor.

MR. CEARLEY: No, sir.

THE COURT: I assume the record reflects that Mr. Robert

M. Cearley, Jr. appears here today on behalf and repre-

senting the Arkansas State Medical Board, and Mr.

Graham Partlow, Jr., lawyer from Blytheville, Arkan-

sas appears in person and with his client, Dr. John Q.

26

Elliott of Blytheville, Arkansas. The designated Num-

ber of the case and the transcript is C-76-200.,

All right. Gentlemen, the court has made a very careful

study of the transcript and all of the exhibits attached

thereto, together with a careful review of the Administra-

tive Procedure Act.

On page 10 in the transcript there is an order, a

designating order to appear and to show cause, before the

Arkansas State Medical Board, which was on October 26,

1976, signed and mailed to Dr. Elliott at his address, 209

West Ash Street, Blytheville, Arkansas. And on the next

page, page 11, it shows a receipt of that notice on October

27, 1976, the same having been sent by Warren and Bullion,

Tower Building, Little Rock, Arkansas, to Dr. John Q.

Elliott, M.D., 209 West Ash Street, Blytheville, Arkansas,

and signed by Dr. Elliott on October the 28th, 1976.

The court is not familiar with what training or knowl-

edge, if any, Dr. Elliott might have with regard to law, or

to the Constitution, or to the Statutory provisions, as they

pertain to this particular matter, or to what rights he would

be privileged to exercise in responding to the order as

mailed to him.

The order itself refers to Arkansas Statute 72-613,

Subsections E and G, and goes further to explain that he is

alleged to have written prescriptions for Schedule 2 drugs

excessively, and that he has written an excessive number

of Schedule 2 drugs for some persons, and as reflected in the

attached investigative report.

There is nothing in the record to indicate whether this

report was attached and whether or not the doctor did re-

ceive such an investigative report.

27

In the third paragraph it is alleged that the doctor had

been guilty of grossly negligent malpractice in prescribing

and dispensing of said drugs, and the fourth paragraph

orders him to appear on December 9th, 1976 at 2:00 p.m.,

Room 401, Little Rock Civic Center, Little Rock, Arkansas

to show cause why his license to practice medicine in the

State of Arkansas should not be revoked. A further sentence

says, “Upon failure to appear the Board would order an

immediate suspension of his license.

The record reflects that the doctor did appear in

response to this order, and it does not reflect that he

appeared with any counsel, or with any knowledge of the

procedure to be followed in the handling of the hearing:

The names, addresses, capacities of any witnesses that were

to be presented against him or for him; that he had any

knowledge concerning his rights to have the allegations as

related in the general notice specified in particulars, stating

on what dates, occasions, what pharmacist, to whom the

prescription was written, for what purpose, whether in

truth and in fact the doctor did write the prescriptions, or

that there was anything illegal or prohibitive by law in the

writing of these prescriptions.

The record does not reflect that the doctor was advised

prior to the hearing that he could, if he so desired, call any

witnesses in his behalf that he might wish to call, that he

has a right to cross-examine any witnesses produced by the

Arkansas State Medical Board, that anything that he said,

or did, or any admissions that he might make could and

would be used against him in the Board making its de-

cision as a result of the hearing which they proposed to

have on that occasion.

There is nothing in the record indicating that he was

28

advised that if the result was adverse that he had any

particular right to any further consideration, or relief by

the court by appeal or otherwise.

In examining and reviewing the testimony of the two

witnesses that did appear, their testimony is replete with

conclusions, conjecture, speculation and guess work, and

giving it the greatest benefit that it is entitled to in a hear-

ing before the Board in such an administrative hearing,

this court could not say that to do justice in this case, either

on behalf of the Arkansas State Medical Board, or the

doctor, that the greatest portion of this evidence couid

really be given much, if any, consideration because of those

facts.

It is true that the record shows a number of prescrip-

tions alleged to have been written by the doctor on dif-

ferent occasions, and at one point the doctor made some

remark that beyond that point there wouldn’t be any

problems in this area, but there is nothing in the record to

indicate wherein the doctor, if he wrote the prescription,

was wrong in writing the prescription. In fact, at one point

in the record it reflects that where the doctor was given an

opportunity to explain one of the prescriptions that he

relates to a cancer patient which he had, and the Board

readily acknowledged that this was perfectly proper that

he should have given to this particular patient some drug

that would award relief, and that there was nothing in that

regard that denoted any wrong whatsoever.

The court also notes at one point in the record that

apparently before the hearing had concluded, judgment on

behalf of one of the members had already been rendered in

the case; not stating that his judgment was binding on the

remainder of the Board, but that this was the action that

29

he was going to take, and then the hearing continued and

at the conclusion of which, this was the action that he did

take.

Now, gentlemen, in all fairness and justice to anyone

in this case or any other case, I don’t know how many years

that the doctor has practiced, and the record doesn’t reflect

how many years; it does reflect his age, and as counsel

stated, is sixty-eight, or was at the time of the hearing, so,

the court is not in a position to say how long the doctor has

practiced in the community, but regardless of whether it is

Dr. Elliott, or any other doctor, or for that matter, a lawyer,

or a dentist, or any other professional man, this is a very

serious proceeding to undertake. Certainly, the court agrees

that all professions ought to be policed. It is grossly unfair

to the public, it is grossly unfair to the profession, to have

anybody who is not competent and capable, who is intent

on doing what is right, fair, and just under the circum-

stances as they see it at the time the matter is presented to

them, and giving every effort, and the results of the benefit

of all of the training that they had to the interests of those

that they serve, which are the public.

But, it impresses this court that even if it reaches a

point where some action is necessary, and, certainly there

are cases where action is necessary, every person that

might be brought before a board under the Administrative

Procedure Act certainly ought to be entitled to a full, and

a complete, and a particularized statement of exactly what

that person is charged with. I don’t know how they could

meet at a hearing, what the allegations might be, unless

this were true, and I realize that the rules of evidence are

different from what they are in the Criminal Divisions of

the court, and probably are not as substantial as they are

in the Civil Division of the court, but regardless of that,

30

just in being absolutely fair with a person these things

ought to be spelled out in some particularity so that they

will know exactly what it is that you seek to show in

regard to whatever alleged misconduct might have been

alleged to have been engaged in.

Now, this is a pretty strong statement to say that an

individual who apparently up to this point, there is no

record to the contrary, has practiced medicine in an honor-

able way, on this particular date and occasion when the

order was served accusing him and alleging that he was

grossly negligent, or guilty of ignorance and malpractice,

without specifying in detail the particulars relied upon to

support such a charge.

Here you are attacking a man’s professional conduct.

You are subjecting an individual to extreme public ridicule,

and abuse. You are doing great injury, harm, and damage

to his reputation. It could result in action on behalf of the

public generally that even though cleared, might be dam-

aging to the remainder of the person’s days.

So, as the court sees it, the motion is serious under-

taking. Now, under the evidence as I read the evidence in

the transcript here, the court finds that there was a viola-

tion of the doctor’s constitutional rights and due process,

and that an excessive authority was exercised by the

Board in suspending the doctor for four months based upon

the evidence which has been lodged in this court; that the

allegations are not supported by substantial evidence, and

for these reasons, and the reasons stated in the statement

the court has made to you gentlemen, the Arkansas State

Medical Board’s findings will be reversed, and I assume

you want your exceptions noted.

31

MR. CEARLEY: Yes, sir.

THE COURT: And they will be of record, and exceptions

noted.

Anything else, Gentlemen?

MR, PARTLOW: That is all I have, Your Honor.

MR. CEARLEY: No, sir.

THE COURT: All right. I have enjoyed working with you.

You may be excused,

(Adjournment).

THE STATE OF ARKANSAS

SECOND JUDICIAL CIRCUIT

REPORTER’S CERTIFICATE

I, Thomas R. Lancaster, R.P.R., Official Court Reporter

within and for the Second Judicial Circuit of the State of

Arkansas, duly qualified, appointed and acting, do hereby

certify that the annexed and foregoing pages of typewritten

matter contain a true, correct and complete transcript of

all of my stenographic notes on the ruling of the court in

the above-entitled cause, when the matter was heard in

Osceola, Arkansas, on Monday, June 13th, 1977, to the best

of my ability.

IN WITNESS WHEREOF, I have hereunto set my hand

on this 19th day of June, 1977.

/s/ Thomas R. Lancaster

Registered Professional Reporter

Official Reporter

THE STATE OF ARKANSAS

SECOND JUDICIAL CIRCUIT

JUDGE'S CERTIFICATE

AND on this day comes the Respondent and presents

this, his transcript of testimony, to the Judge hearing said

case and the Judge, after duly examining same doth order

said transcript of testimony be by the Clerk filed and made

a part of the record herein.

IN WITNESS WHEREOF, I have hereunto set my

hand on this the 15th day of August, 1977.

/s/ A. S. Todd Harrison

Circuit Judge

33

APPENDIX “III”

BEFORE THE

ARKANSAS STATE MEDICAL BOARD

In THE MATTER OF:

C-76-200

JouN Q. Exviort, M.D.

209 West Ash

Blytheville, Arkansas

DECISION AND ORDER

On October 26, 1976, an Order to Show Cause was

issued by the Arkansas State Medical Board, directed to

John Q. Elliott, M.D. The Order to Show Cause was served

upon John Q, Elliott, M.D., by registered mail on October

28, 1976. The Order advised Dr, Elliott that he was charged

with having violated provisions of Ark. Stat. §72-613(e)

(g), in that he had written prescriptions for Schedule II

drugs excessively and had written an excessive number of

prescriptions for Schedule II drugs for some persons and

that he was guilty of grossly negligent malpractice in the

prescribing and dispensing of said drugs. Hearing was set

on the Order to Show Cause for December 9, 1976.

Hearing was held on December 9, 1976 at which Dr.

John Q. Elliott was personally present.

FINDINGS OF FACTS

AND CONCLUSIONS OF LAW

Mr. Woodrow T. Little, Director, Bureau of Narcotics

and Dangerous Drugs, testified that during the months of

June and July, 1976, the records of the pharmacies in the

34

Blytheville area showed large quantities of prescriptions

written by Dr. Elliott for Quaalude 300, said prescriptions

written mostly for young people.

Mr. Samuel R. Probasco, Drug Abuse Investigator for

Arkansas State Department of Health, testified, and pro-

duced evidence of prescriptions written by Dr. Elliott and

filled at the Pill Box, Highway 61 South, Blytheville,

Arkansas, showing that eighty-nine (89) prescriptions for

Quaalude 300 were filled at that drug store between July

21, 1976 and November 13, 1976, and that the record of

Plaza East Walgreen Drug, Blytheville, Arkansas, showed

sixty-four (64) prescriptions for Quaalude 300 were filled,

written by Dr. Elliott, between November 9, 1976 and De-

cember 2, 1976. Mr. Probasco further testified that the

records of the other four drug stores in the area showed

similar information. Mr. Probasco further testified that

fifty percent of the drug problem in the Blytheville area

was caused by the indiscriminate writing by Dr. Elliott of

Quaalude 300 prescriptions.

Based upon the evidence presented, the Board hereby

unanimously finds that Dr. John Q. Elliott has written

prescriptions of Quaalude 300 excessively and has written

an excessive number of prescriptions of Quaalude 300 for

some persons, as reflected by the evidence.

CONCLUSIONS OF LAW

The acts of Dr. John Q. Elliott, found above, constitute

malpractice and the actions of Dr. Elliott are in violation

of the Arkansas Medical Practices Act.

35

ORDER OF THE BOARD

The license to practice medicine and surgery in the

State of Arkansas heretofore issued by this Board to John

Q. Elliott, M.D., is hereby suspended pending further hear-

ing, provided that such hearing is requested by John Q.

Elliott, M.D., at least twenty days prior to the next regular

meeting of the Board.

Dr. John Q. Elliott is hereby notified of his rights of

appeal as provided for in the Administrative Procedure Act,

Ark. Stat. Ann. §5-701 et seq.

Dated this day of December, 1976.

FILED December 28, 1976.

ARKANSAS STATE MEDICAL BOARD

By: /s/ Joe Verser, M.D.

Its Secretary

36

APPENDIX “IV”

IN THE

SUPREME COURT OF ARKANSAS

ARKANSAS STATE MEDICAL BOARD .............. Appellant

vs. No. 77-258

SOM G. TAAROEE, BLD, oc cciccccscessvcscvecess Appellee

AN APPEAL FROM

MISSISSIPPI COUNTY CIRCUIT COURT

CHICKASAWBA DISTRICT

HONORABLE A. S. HARRISON, Judge

PETITION FOR REHEARING AND

BRIEF FOR APPELLEE

PETITION FOR REHEARING

Appellee petitions the court for a rehearing in this

cause on the grounds that the opinion entered by this court

on March 13, 1978, contains grievous errors of fact and of

law; that the court either has not read the transcript of the

hearing before the Appellant Board and therefore is un-

aware of the irregularities of law contained therein or, in

the alternative, has completely misconstrued the evidence

presented by the Appellant Board against Appellee.

37

Petitioner would state further that the Brief to be

filed with this court and made part of this Petition will set

forth specific examples of complete distortions and irregu-

larities of fact contained in the Opinion filed by this court

and Petitioner states further that the Opinion of this court

affirming the action of the Appellant Board is based

completely and entirely upon evidence that is not substan-

tial of record for the reason that same constitutes hearsay,

vagueness, exaggeration, innuendo and irrelevancy. —

Petitioner would state further that he had requested

the court in his original Brief to read the very short tran-

script of the Appellant’s hearing involving this Appellee

and he would again request that the court take the time to

read this very short transcript and the court will then be

satisfied beyond any doubt that the evidence presented

before the Appellant Board was not supported by substan-

tial evidence of record and that said hearing was violative

of Appellee’s constitutional rights and in excess of Appel-

lant’s statutory authority.

Petitioner would state further that the action of this

court in its Opinion rendered on March 13, 1978, reversed

the action of the Circuit Court with directions to reinstate

the Order of the Appellant Board; that at the very least and

in the alternative, Petitioner would request that this court

order that this matter be remanded to the Appellant Board

for another hearing at which time Appellee will have the

opportunity to be present and with Counsel and to have

his constitutional rights protected.

WHEREFORE, Appellee prays for rehearing in this

cause; that upon said rehearing the court affirm the action

of the Circuit Court; that in the alternative, and should this

court deem it necessary to reverse the Circuit Court, then

38

and in that event they reverse with directions to remand

the cause to the Appellant Board of an additional hearing

to be held.

ParTLOW & Mayes, P.A.

Attorneys for Appellee

311 North Second Street

Blytheville, Arkansas 72315

By: GRAHAM PARTLOW

BRIEF AND ARGUMENT

Appellee would first point out that the court in its

Opinion of March 13, 1978, has quoted certain portions of

the very brief transcript of the hearing before the Appellant

Board and it would appear to Appellee that the court did

not read that transcript in its entirety in order to obtain

the complete picture of that hearing before that Board or,

in the alternative, that the court simply misread parts of

that transcript. Appellee will attempt in this Brief to point

out those glaring discrepancies between what that tran-

script actually shows and what the opinion of this court

quotes.

The court opinion sets out that Dr. Elliott personally

appeared at the hearing and participated therein without

making objection to the charges or requesting that they be

made more definite and certain. Apparently the court com-

pletely ignored Appellee’s argument set forth in his Brief

regarding the violation of his constitutional rights by failing

to inform him that he had the right to have Counsel present

with him, by failing to inform him that he had the right to

object to the testimony introduced at the trial and by failing

to inform him that he had the right to cross-examine the

:

39

witnesses. He was not even given the rudimentary expla-

nation that any layman appearing at any hearing involving

his constitutional rights would be entitled to receive and

most certainly his constitutional rights were violated when

his right to practice medicine in this State, which consti-

tutes a valuable property right, was placed in jeopardy

without him being forewarned of what his rights would be

at the hearing. Appellee would further poiut out that if the

court would simply read this transcript, the court would

see that an attorney for the Board was present and at-

tempted to advise Dr. Elliott of his rights but at no point

did he advise him that he would have the rights as set out

herein. Appellee was rather shocked when he read the

opinion of this court because he felt there would simply be

no need to cite authority after authority to sustain his

position that his constitutional rights were violated before

this administrative hearing. He had requested the court

simply read the transcript and he had pointed out where

his rights had been violated but from an examination of the

Opinion of this court entered on March 13, 1978, it appears

that those arguments were completely ignored.

The Opinion of this court contains yet another in-

accuracy and apparently again the court has simply misread

the transcript of the Appellant Board. The court points out

in its Opinion that the evidence showed that Dr. Elliott had

been before the Board on November 7, 1974, at which time

he had agreed not to write prescriptions for amphetamines.

Now, apparently in the context of the Opinion, the Supreme

Court has chosen to use that prior appearance as a prior

conviction for impeachment of Dr. Elliott’s testimony or,

in the alternative, simply as a prior conviction to show

guilt on this occasion. Appellee, however, would point out

to the court that this hearing involved the prescribing of

40

Quaalude 300 which is a sedative and not an amphetamine.

The prescribing of Quaalude 300 has absolutely nothing to

do with his previous prescribing of amphetamines and, in

fact, Appellee, not having been advised of his constitutional

rights to cross-examine and not knowing exactly what his

rights were and being completely ignorant, in fact of court-

room procedure or administrative board procedure, could

quickly have had the reference to prior appearance in-

volving amphetamines completely removed from the

transcript.

Appellee has found yet another reference in the

opinion of the court quoting one of the witnesses at this

so-called hearing and it is rather ironic that the very

statement quoted by this particular witness is the very

thing that Appellee attempted to point out to this court in

his Brief in order to prove that this hearing was so far

beyond the realm of legality, proper procedure and pro-

tection of one’s constitutional rights as to be a complete

farce. The court quotes Mr. Probasco when he stated that

Dr. Elliott “was the only doctor in Blytheville who was

writing more prescriptions for Quaalude 300 than could be

counted on one hand.” There was absolutely no evidence

in this record regarding the amount of patients that Dr.

Elliott sees and there was absolutely no criteria for how

many prescriptions he or any other doctor could write for

this or any other drug. This is simply one of the arguments

advanced by Appellee to show the complete inadequacy of

the record in this cause and the lack of statutory authority

because no standards were set. Now, Appellee would point

out to the court that the last time he counted, there were

five fingers on one hand and taking two hands makes a

total of ten fingers and although Appellee realizes that Mr.

Probasco was using a figure of speech, nevertheless, he

41

points out to the court that this was highly improper for

this witness to make this statement and for this type of

statement to be admitted before this hearing.

The Opinion of this court then quotes Mr. Probasco

further when it pulls from context a statement Probasco

made when he questioned drug stores in West Memphis

wherein they had told him they turned down Dr. Elliott’s

prescriptions “always for one reason — youngsters, no phy-

sical need.” Now, had the court read that very brief tran-

script of the Appellant’s hearing, it would have found that

Probasco made an additional statement immediately follow-

ing the above quoted sentence wherein he stated:

“Apparently, we can’t take their judgment on that and

also a seedy looking group as a whole.”

Appellee simply points out that the witness Probasco

on the one hand quotes stores in West Memphis as saying

they turned down prescriptions but on the other hand, in

the very next breath, he states they can’t take their judg-

ment on that. Now it would appear to Appellee that this

transcript of the hearing before the Appellant Board was

either made by someone not trained in shorthand and who

simply took it down in longhand and then reduced it later

according to his or her memory as to what had been said or,

in the alternative, if it was taken down in shorthand

verbatim then the people were speaking in rather strange

terms. At any rate, the court in its cursory examination of

this transcript has chosen to pull one statement out of

context made by a witness who appeared against Dr.

Elliott and Appellee would remind the court that this wit-

ness’ testimony was completely incompetent, based solely

upon hearsay, and that Dr. Elliott had not been advised of

his rights to cross-examine him.

42

The witness Probasco, it might be pointed out by

Appellee, appears to have been the most damaging witness

against Appellee according to the court’s opinion and the

court’s interpretation of that transcript. Even though the

witness appeared and made highly conjectural and specula-

tive statements, based upon exaggeration and innuendo and

all of which constituted hearsay and incompetent evidence,

nevertheless, the court has chosen to pull that witness’

testimony from the transcript and to use that witness’

testimony to convict this Appellee. Probasco testified that

between July 21 and November 13, 1976, he found one store

in Blytheville had filled 92 prescriptions for Quaalude 300.

So what! There was no evidence to show how many stores

in Blytheville were filling prescriptions written by Dr.

Elliott and as the court well knows, most doctors prefer or

favor one drug store in a community rather than spreading

their business among all the drug stores and, in fact, the

old custom was that the drug stores paid the doctors a re-

bate on the prescriptions they wrote. Now, assuming Dr.

Elliott uses one store in Blytheville, the period of time

quoted by Probasco is 84 working days. Is it unreasonable

to assume that during that period of time the Appellee

would have written 92 prescriptions for this particular

sedative? There is no evidence here to show the size of his

practice, the number of patients he sees, the number of

factory workers who see him and who are working swing

shifts and who need some sort of sedative to enable them to

sleep during the day when the noise of traffic and people

is normally enough to prevent sleep. Nor is there any rule,

statute, standard or regulation set by any court, legislature

or governmental agency or body that establishes the num-

ber of prescriptions that a doctor can write for this or any

other drug. The court has seen fit to quote the vague and

43

ambiguous regulations that the Appellant relied upon and

nowhere in those rules, regulations or laws is there any set

standard that any reasonable man can use to govern his

activities. Here again is a violation of this Appellee’s rights

when he is punished for failing to abide by a governmental

edict that is so vague, ambiguous and uncertain that no man

of reasonable mind could interpret the exact standard by

which he was expected to operate his business.

One of the arguments advanced by Appellee when he

appeared before Honorable A. S. Todd Harrison, Circuit

Judge of this District, was the complete and total disregard

shown by the Appellant Board for this Appellee’s rights. As

an example of that, Appellee pointed out to the learned trial

judge that part of this transcript wherein one of the mem-

bers of the Appellant Board made the statement that this

was a “wonderful drug that they can take one of them and

shack up a week.” Now, in response to that, the Appellee,

who by this time had been placed at ease by the apparent

informality of this hearing dealing with his valuable prop-

erty rights, stated that people had tried it and told him that

mixed with alcohol was what they liked about Quaalude

because it heightened their sexual performance. Isn’t it

rather odd that no one thought to ask the Appellee when he

had obtained that information; in the alternative, isn’t it

rather odd that Appellee stated he had only recently ob-

tained that information but it wasn’t shown in the tran-

script. The sad thing about this particular part of the

transcript is that the court, in its opinion, saw fit to again

remove from context the statement made by Appellee but

nothing whatsoever was said about the statement made by

the member of the Board preceding Appellee’s statement.

The court in its Opinion states that it finds ample evi-

dence and, in fact, evidence corroborated by Dr. Elliott to

44

sustain the decision of the Board which Appellee chooses

to call a conviction. But can any reasonable man who sits

down and takes just five minutes of his time to read this

abbreviated record or transcript of the proceeding before

this Appellant Board, arrive at any conclusion other than

the fact that the entire abbreviated record is replete with

hearsay, innuendo, uncorroborated conclusions of fact,

exaggeration and speculation?

The court then states that Appellee prescribed Quaa-

lude 300 for both young and old people and to persons who

did not have anything wrong with them. Appellee is at a

loss to determine exactly what the court means by this but

if the court is setting a standard for the prescribing of

medicine to only those who have “something wrong with

them”, then the court has set a standard that was not

enacted by the Legislature nor by an administrative board

or agency of any federal or state government. Quaalude 300

is a sedative and in the simplest context of the term, having

“something wrong with you” means that you are ill. A

sedative is for those who are unable to obtain sleep normally

and it is not for someone who is ill. Here again the court

has completely misinterpreted this hearing, the basis of the

hearing, the evidence presented at the hearing and even

what the drug for which he was charged as having exces-

sively prescribed, was for.

The court finds in its opinion that there was substantial

evidence to corroborate the decision of the Board and, in

fact, the evidence was corroborated by Dr. John Elliott

himself. Appellee would again point out that the court has

completely misinterpreted the transcript of this proceeding

and what the Appellant’s proceeding was all about. In the

opinion the court states that Dr. Elliott had been prescrib-

ing Quaalude 300 for both young and old people and to

45

persons who did not have anything wrong with them. At

the risk of being repetitious, Appellee would state that

there is no rule, standard, order or law that provides that

Quaalude 300 should be prescribed for middle aged persons

or persons 30 years of age or 45 years of age and simply

because he was prescribing for young and old people is by

no means indicative of the fact that he was violating any

standard or guilty of malpractice. Now, the court again

makes reference to the fact that he was prescribing

Quaalude 300 for persons who did not have anything

wrong with them and Appellee would simply point out

once again that Quaalude 300 is a sedative which in com-

mon terms means a sleeping aid. It is not for persons who

“have something wrong with them” but it is simply for

persons who need sleep and are unable to obtain it and Dr.

Elliott represents a great number of people who work in

factories, many of whom work the swing shifts and all of

whom have some difficulty in sleeping because of the

change of their hourly or daily routines.

The court in its Opinion also dwells on the fact that

Appellee had prescribed Quaalude 300 under two separate

names for the same black man. This again is a prime

example of failure to read the transcript and/or misinter-

pretation of what was read. There is absolutely no evidence

that this Appellee prescribed this drug or any other drug

or medicine for the same man under two names. There was

evidence in the nature of hearsay by Probasco that the

Osceola Police had arrested a black man who had two

prescription bottles in his pocket made out in two different

names but there was absolutely no evidence that this black

man had applied to Appellee for both of these prescriptions

and had used two different names and can it be said that

an inference could also be drawn that this man had either

46

stolen or appropriated either one or both of these bottles

from other persons? The court apparently in its Opinion

and throughout its Opinion has drawn inferences complete-

ly against Appellee; Appellee would simply ask that the

court for once draw an inference in his favor since it is

Appellee’s constitutional rights being violated and not

Appellant’s.

In conclusion, Appellee would point out to this court

that the decision of the Appellant Board was not in the least

supported by substantial evidence of record and this was

pointed out by Appellee in his Brief and authorities were

cited to substantiate his position. Appellee had begged the

court simply to read this abbreviated transcript of the

hearing before the Appellant Board. Appellee realizes this

court is burdened with appeals but can anything be more

important than the reputation and standing in the com-

munity of a long time resident and a medical practitioner

for over 40 years? And in addition to that, can anything be

more important than his constitutional right to practice

medicine and to earn a living without being harassed,

bothered and interfered with by some bureaucratic board

completely oblivious of his or anyone else’s constitutional

rights.

The court again in its Opinion pointed out that Appellee

had prescribed Quaalude 300 to the same man under two

different names who admittedly had nothing wrong with

him. As Appellee has already stated, he did not prescribe

the same medicine to the same man under two different

names, Probasco’s uncorroborated hearsay testimony was to

the effect that the Osceola Police had discovered a man

with two bottles in his pocket written out in two different

names but there was no evidence that this Appellee had

prescribed medicine for this same man and, in fact, if the

a

47

court will simply read the transcript, Appellee attempts to

deny this charge even though the reporter has simply

attempted to place certain parts of Appellee’s denial in the

record. Now as to the charge that nothing was wrong with

him, Appellee would again point out that Quaalude 300 is

a sleeping compound and fortunately the reporter who took

down some of this testimony does quote Appellee when he

states that the man looked like he had been awake two or

three days when he came to see him.

The court has disposed of Appellee’s constitutional

argument by simply stating that the notice was adequate

under the Administrative Procedures Act. Can the court

deny that Appellee’s right to practice medicine is not a

valuable property right and to be jealously guarded and

protected by our courts? Can it really be said that this

so-called administrative hearing which violated every

concept of due process was constitutional? Can any mem-

ber of this court who reads this record not find a complete

denial of Appellee’s basic rights? There are more constitu-

tional rights and violations of same involved in this case

than simply a lack of notice and it would appear that any

court jealous of the constitutional rights of citizens would

make more than a cursory examination of a record such as

the one in this case and would easily find violations of basic

constitutional rights, whether they were pointed out in

briefs filed or not.

The learned trial judge in this case, Honorable A. S.

Todd Harrison, Circuit Judge for the Second Judicial Court

of the State of Arkansas, took the opportunity to read the

transcript of the hearing before the Appellant and then

took the opportunity to patiently listen to the arguments of

Counsel involving the positions of the respective parties in

this case. Judge Harrison had no hesitation in reversing

48

the decision of the Appellant Board and did so under the

provisions of Arkansas Statute §5-713(h), which provides

that the court may reverse or modify the decision if the

substantial rights of the Petitioner have been prejudiced

because of the grounds therein enumerated. There is

absolutely no question whatsoever that this Appellee’s

substantial rights have been so prejudiced and so violated

by the actions of this Appellant Board that even a remand

to the Board would be a further violation of his constitu-

tional rights, although Appellee is requesting this court as

alternative relief, to grant a rehearing and if necessary,

order that the matter be remanded to the Board for addi-

tional hearing.

Lastly, Appellee finds that the most cruelly ironic part

of the Opinion is the court’s reasoning that there is no

authority for an administrative board to have the same

concern for the individual that is required in a criminal

prosecution. This court hears, reads, reviews and carefully

studies criminal appeals every day. And it renders judicial

aid to the accused for the most tenuous grounds. Yet, a

respected, long time member of the medical community is

treated in a cavalier manner by this Appellant Board and

this court has chosen to overlook the gross disregard of his

rights and participate in this travesty of justice by affirming

the Board’s action. Appellee again repeats his request that

this court, as a body, simply read the very abbreviated

transcript of this hearing before the Appellant and the

court will find that no man possessed with a reasonable

degree of intelligence and a moderate amount of respect

and concern for his fellow man, can fail to see that the

Appellant Board completely and totally violated and dis-

regarded Appellee’s basic constitutional rights.

49

Appellee respectfully requests that this court review

this record and reverse its decision and affirm the action

of the trial court and in the alternative and at the very

least order the matter be reheard by the Appellant Board.

To affirm the action of the Appellant Board in this case is

to place a stamp of approval upon the deprivation of Ap-

pellee’s valuable constitutional rights without due process;

to give license to any Board or agency to violate the rights

of our citizens with impunity; to remove all safeguards for

protection of our citizenry before the power of government;

and finally to inform the Appellant Board and others that

hearsay, innuendo, speculation, miscalculation, conjecture

and exaggeration are condoned by this court which is the

last resort we have from illegal or oppressive acts by

government, acting through its agencies.

Respectfully submitted,

ParTLow & Mayes, P.A.

311 North Second Street

Blytheville, Arkansas 72315

By: GRAHAM PARTLOW

Attorneys for Appellee

50

APPENDIX “V”

LAW OR CHANCERY MANDATE

STATE OF ARKANSAS, )

) SCT.

In the Supreme Court )

BE IT REMEMBERED, That at a term of the Supreme

Court of the State of Arkansas, begun and held at the Court

Room in the City of Little Rock, on the 3rd day, being the

first Monday of October, A.D. 1977, amongst others were

the following proceedings, to-wit:

On the 17th day of April, A.D. 1978, a day of said term

ARKANSAS STATE MEDICAL BOARD .............. Appellant

Vs. No. 77-259

SOU GS TRAM Fee 6 ia 6 Beh db cde vce eves Appellee

APPEAL FROM MISSISSIPPI CIRCUIT COURT

CHICKASAWBA DISTRICT

Rehearing denied.

In TESTIMONY, That the above is a true copy of the

order of said Supreme Court, rendered in the case

therein stated, I, JIMMY H. HAWKINS, Clerk of said

Supreme Court, hereunto set my hand and affix the

Seal of said Supreme Court, at my office in the city

of Little Rock, this 26th day of May, A.D. 1978.

JIMMY H. HAWKINS, Clerk

By: /s/ Robin Henderson, D.C.

6 ows fa

51

APPENDIX “VI”

LAW OR CHANCERY MANDATE

STATE OF ARKANSAS, )

) SCT.

In the Supreme Court )

BE IT REMEMBERED, That at a term of the Supreme

Court of the State of Arkansas, begun and held at the Court

Room in the City of Little Rock, on the 3rd day, being the

first Monday of October, A.D. 1977, amongst others were

the following proceedings, to-wit:

On the Ist day of May, A.D. 1978, a day of said term

ARKANSAS STATE MEDICAL BOARD .............. Appellant

vs. No. 77-258

SOUS Ge: BIE, Be av boca ckneweecesit cases Appellee

APPEAL FROM MISSISSIPPI CIRCUIT COURT

CHICKASAWBA DISTRICT

Motion of appellee to stay mandate pending appeal to

the United States Supreme Court is granted. Harris, C.J.,

Byrd and Howard, JJ., would deny the motion.

In TESTIMONY, That the above is a true copy of the

order of said Supreme Court, rendered in the case

therein stated, I, JIMMY H. HAWKINS, Clerk of said

Supreme Court, hereunto set my hand and affix the

Seal of said Supreme Court, at my office in the city

of Little Rock, this 26th day of May, A.D. 1978.

JIMMY H. HAWKINS, Clerk

By: /s/ Robin Henderson, D.C.

52

APPENDIX “VII”

IN THE SUPREME COURT OF ARKANSAS

UAE OF CEAMID oi vcs ccc bnevetnstendvsis. Appellant

vs. No. CIV 77-258

INE 60.66 9 eas eeeREEY Cab 00S ee ROD Appellee

PETITION FOR STAY OF MANDATE

Comes now the Appellee, John Q. Elliott, M.D., and for

his petition for stay of mandate, staies:

1. That by this Court’s decision dated March 13, 1978,

this Court reversed Circuit Court, Chickasawba District,

Mississippi County, reinstated the Arkansas State Medical

Board ruling.

2. That at the present time there is a Petition for Re-

hearing pending before this Court.

3. That the Appellee desires prosecute proceedings

to the Supreme Court of the United States by certiorari.

4. That Appellee will provide a copy of the record in

this case to the Clerk of this Court.

5. That pursuant to Supreme Court Rule 22(C),

issuance of Mandate in this case should be stayed pending

proceedings in the Supreme Court of the United States.

6. That at this time Petition for Rehearing is pending

before the Court, upon such action as this Court should take

on Petition for Rehearing could result in irrefutable harm

to the Appellee, and certain property rights could be

divested from the Appellee unless this Court stays Mandate.

WHEREFORE, Appellee prays an order of this Court

53

staying the issuance of Mandate in this cause pending

prosecution of proceedings to the Supreme Court of the

United States.

Scott MANATT

Attorney for Appellee

By: /s/ Scott Manatt

AND

ParRTLOW & MAyéEs, P.A.

311 North Second Street

Blytheville, Arkansas 72315

FILED: April 3, 1978

/s/ Jimmy H. Hawkins, Clerk

STATE OF ARKANSAS _)

) VERIFICATION

COUNTY OF CLAY )

Scott Manatt, after being duly sworn, states:

I am one of the attorneys for the appellee herein, and

the facts and statements contained in the above and forego-

ing instrument are true and correct to the best of my

knowledge, information, and belief.

/s/ Scott Manatt

SUBSCRIBED AND SWORN TO before me, a Notary

Public, on this 3rd day of April, 1978.

My Commission Expires:

1-28-81

/s/ Ellen Lewis, Notary Public

54

CERTIFICATE OF SERVICE

I, Scott Manatt, one of the attorneys for the appellee in

the foregoing cause, hereby certify that a copy of the fore-

going instrument was duly served on the appellant by

depositing seme in the United States mail, bearing sufficient

postage, and addressed to Eugene R. Warren, 1014 West

Third Street, Little Rock, Arkansas 72201, attorney for the

Appellant and Bill Clinton, Attorney General, State Capitol,

Little Rock, Arkansas 72201, on this 3rd day of April, 1978.

/s/ Scott Manatt

55

APPENDIX “VIII”

BEFORE THE

ARKANSAS STATE MEDICAL BOARD

In THE MATTER OF:

JOHN Q. ELLIOTT, M.D.

209 W. Ash

Blytheville, Arkansas

ORDER TO APPEAR AND SHOW CAUSE

The Arkansas State Medical Board has received evi-

dence that you have been guilty of acts which will justify

the revocation of your license to practice medicine in the

State of Arkansas.

Specifically, it has been charged that you have violated

the provisions of Ark. Stat. 72-613(e) (g) in that you have

written prescriptions for Schedule II drugs excessively and

you have written an excessive number of prescriptions for

Schedule IT drugs for some persons as reflected by the at-

tached investigative report.

You have been guilty of grossly negligent malpractice

in the prescribing and dispensing of said drugs.

You are directed to appear before the Arkansas State

Medical Board on Thursday, December 9, 1976 at 2:00 p.m.,

room 401 at the Little Rock Civic Center, Little Rock,

Arkansas, to show cause why your license to practice

medicine in the State of Arkansas should not be revoked.

Your failure to appear before the Board will result in the

immediate suspension of your license.

ARKANSAS STATE MEDICAL BOARD

By: /s/ Joe Verser, M.D.

October 26, 1976