Robert L. Dougherty, Jr., M.D.; Revocation of Registration

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 94-63]

Robert L. Dougherty, Jr., M.D.; Revocation of Registration

On July 29, 1993, the Deputy Assistant Administrator (formerly

Director), Office of Diversion Control, Drug Enforcement Administration

(DEA), issued an Order to Show Cause to Robert L. Dougherty, Jr., M.D.

(Respondent), of Poway, California, notifying him of an opportunity to

show cause as to why DEA should not revoke his DEA Certificate of

Registration, AD1048861, and deny any pending applications for renewal

of such registration as a practitioner, under 21 U.S.C. 823(f) and

824(a)(4), as being inconsistent with the public interest.

Specifically, the Order to Show Cause alleged that: (1) Between January

1990 and March 1992, the Respondent prescribed the following controlled

substances, Demerol, Percocet, Percodan, Preludin, Nembutal, Fastin,

Tenuate, Valium, and Xanax, to an individual for no legitimate medical

purpose and outside the scope of his professional practice; (2) between

December 1990 and December 1991, the Respondent prescribed the

following controlled substances, Lortab, Vicodin, Darvocet, and other

dextropropoxyphene combination products, to an individual for no

legitimate medical purpose and outside the scope of his professional

practice; (3) between January 1991 and April 1992, the Respondent

prescribed the following controlled substances, Lortab, Vicodin, and

Oxazepam, to an individual for no legitimate medical purpose and

outside the scope of his professional practice; (4) between April 1990

and July 1990, the Respondent ordered the following controlled

substances, Demerol, morphine, Lortab, Vicodin, Xanax, and Halcion,

without maintaining receipt or dispensing records of such orders; (5)

in April 1992, various controlled substances were located at the

Respondent's residence although the residence was not a registered

location at that time.

On August 18, 1993, the Respondent filed a timely request for a

hearing, and following prehearing procedures, a hearing was held in San

Diego, California, on July 26, 27, and 28, 1994, before Administrative

Law Judge Paul A. Tenney. At the hearing the Respondent was represented

by counsel, both parties called witnesses to testify and introduced

documentary evidence, and after the hearing, counsel for both sides

submitted proposed findings of fact, conclusions of law and argument.

On January 12, 1995, Judge Tenney issued his Findings of Fact,

Conclusions of Law, and Recommended Ruling, recommending that the

Respondent's DEA Certificate of Registration be suspended for a period

of one year. On January 23, 1995, the Government filed Exceptions to

the Opinion and Recommended Decision of the Administrative Law Judge,

and on March 20, 1995, the Respondent filed a Response to the

Government's Exceptions.

On March 22, 1995, Judge Tenney transmitted the record of these

proceeds to the Deputy Administrator.

The Deputy Administrator has considered the record and the

submissions of the parties in their entirety, and pursuant to 21 CFR

1316.67, hereby issues his final order based upon findings of fact and

conclusions of law as hereinafter set forth. The Deputy Administrator

adopts the findings of fact and conclusions of law of Judge Tenney,

except as noted below, and his adoption is in no manner diminished by

any recitation of facts issues and legal conclusions herein, or of any

failure to mention a matter of fact or law. However, for reasons

explained below, the Deputy Administrator rejects Judge Tenney's

recommendation as to the appropriate disposition of this case.

The Deputy Administrator finds that in February 1992, as a result

of a call from a local pharmacist, a DEA Diversion Investigator

(Investigator) opened a case to investigate allegations that the

Respondent was prescribing excessive amounts of controlled substances

to a named individual, Patient #1. In March 1992, an employee of the

Respondent also called the Investigator concerning the Respondent's

prescription practices relevant to Patient #1. Next, an agent from the

California Department of Justice, Bureau of Narcotic Enforcement

(Agent) obtained a listing of triplicate prescriptions written for

Schedule II controlled substances for a two year period under the

Respondent's DEA Certificate of Registration number. She testified

before Judge Tenney that the overall number was ``fairly modest,''

except for those pertaining to Patient #1, which appeared excessive.

The Investigator sent this listing to a medical doctor, Dr. Denes, for

review. Without benefit of Patient #1's treatment record, in a letter

dated March 18, 1992, Dr. Denes wrote that the prescription pattern for

Patient #1 was highly suspect. For example, Dr. Denes wrote that

Percodan and Demerol, both Schedule II controlled substances, are

typically used on a short term basis and prescribed at a maximum of

four doses per day. However, the Respondent has prescribed enough of

this substance for Patient #1 to take an average of 3.7 doses per day

during all of 1990, and 11.4 doses per day in 1991. Dr. Denes also

wrote that the Respondent's practice of prescribing large quantities of

both nervous system depressants and nervous system stimulants ``is

highly irregular in the medical profession and raises the very strong

likelihood of drug abuse. I cannot conceive of any legitimate medical

condition which would require the prescribing of these drugs, in these

quantities, to any patient.'' Relying upon the information received

from Dr. Denes, DEA obtained

[[Page 55048]]

a search warrant for the Respondent's office and residence, and

executed this warrant on April 24, 1992.

Prior to executing the search warrant, the Investigator had

obtained ten DEA Form 222's (official triplicate order forms used by

physicians to order scheduled narcotics), showing shipment dates

between April 16, 1990, and indicating that a local pharmacy had filled

the Respondent's orders for Demerol and Morphine, and had shipped the

orders to the Respondent at his office. At both the Respondent's office

and home, investigators searched for the Respondent's copies of the

previously obtained DEA Form 222's. The Respondent had told the

Investigator the documents were on his desk in his office, but after

two hours of searching through a disorganized stack of documents on and

in the Respondent's desk, the Investigator was unable to locate the

forms. She testified before Judge Tenney that after this two hour

search she had concluded that the forms were not ``readily

retrievable'' and she ended her search. The investigators were also

unsuccessful in locating a ``biennial inventory'' at either the

Respondent's home or office, and during the hearing before Judge

Tenney, the Respondent conceded that he had not maintained a biennial

inventory. Investigators were also unable to locate at either the

Respondent's home or office receipts for controlled substances that the

Respondent had purchased from drug distributors between 1990 and 1992,

or receipts for controlled substances that were actually located at the

Respondent's office at the time of the search. The Respondent conceded

that he did not keep receipts for samples of controlled substances that

he had been given from drug company representatives, substances such as

Xanax, Valium, and Halcion. During his hearing testimony, the

Respondent conceded that he had not directed anyone in his office to

keep a record of the actual receipt of controlled substances, although

he ``inconsistently, and not most of the time'' placed a note in a

notebook. The parties dispute the existence of dispensing records, for

the investigators were unable to locate such records at the time of the

search, but the Respondent asserted that he maintained dispensing

records, that those records were located in the pile of documents on

the top of his desk, but that they disappeared in the search. The

Respondent testified that the dispensing records were mostly for

injectable substances (Demerol and morphine), but that there were

``probably a few, but nothing major'' with respect to ``all the others,

the samples, [and] the Xanax.'' The Respondent also testified that he

dispensed samples to patients other than Patient #1, that he had an

annotation system for the patients' records noting such dispensing, but

that he did not use this system in Patient #1's record.

Patient #1 became Respondent's patient in 1974, he is a Vietnam

veteran who was injured, and he is a medically retired San Diego Police

Officer. He was medically retired after experiencing three back

injuries, consulting with at least two neurosurgeons and two orthopedic

surgeons in San Diego, being diagnosed with extensive lumbar-spine

disease and a herniated disk in the cervical spine, and requiring pain

medication pending major surgery. The Respondent testified that he had

``received, to [his] satisfaction, incontrovertible proof that [Patient

#1's] pain was real.'' In the early 1980's, Patient #1 received

treatment at a pain clinic to try to decrease his reliance upon

narcotic pain medication. Also his treatment record contained notations

made in the early 1980's as part of an arthritic clinic's treatment,

reflecting that Patient #1 believed that he was addicted to pain

medicine, and that the planned treatment was ``to decrease the

patient's pain-medication addiction.''

At the hearing before Judge Tenney, the Government called Dr. Ling

as an expert witness. The parties dispute whether this witness should

be regarded as an expert witness in pain management, but Judge Tenney

reviewed the witness's Curriculum Vitae (made a part of the record) as

well as the witness's testimony concerning his professional education

and experience, and determined that Dr. Ling was also qualified as an

expert in pain management. After reviewing Patient #1's treatment

record, Dr. Ling concluded that generally he had no dispute with the

manner or amount of controlled substances the Respondent prescribed to

Patient #1 during the 1980's. However, after Patient #1 moved into the

Respondent's home in early 1990, the notations in his chart became

sporadic, ending on December 3, 1991. Dr. Ling testified that the

Respondent's standard of care as to Patient #1, to include a lack of a

medical record showing Patient #1's treatment, and the excessive

amounts of prescribed medication between January 1990 and February

1992, ``fell below community standards for the average physician.'' He

conditioned this opinion by stating that the evidence ``does not

support that the doctor was prescribing for an illegitimate purpose,''

or that ``he was doing something dishonest,'' but rather that such

prescribing was not ``appropriate treatment'' in this case. The

Respondent rebutted Dr. Ling's opinion by testifying that he altered

his patient record practices in the case of Patient #1 after he moved

into his home because he now saw him regularly and was able to closely

observe him on a daily basis. Further, the Respondent testified that

between 1990 and 1992 he received samples of Xanax, and gave these to

Patient #1, although such dispensing was not recorded in his chart.

Further, the Respondent conceded that from April 1991 through March

1992, virtually no Schedule II drugs were recorded on Patient #1's

chart, even though the prescription records obtained from the

pharmacies recorded that such controlled substances were prescribed and

the prescriptions filled.

However, the record also demonstrates that from mid-December 1991

to April 1992, Patient #1 ``rarely ever'' went into an examination

room, pursuant to information provided by a member of the Respondent's

staff. Patient #1 would visit the office to pick up prescriptions, and

he would often call the Respondent's office and leave a message telling

the Respondent what controlled substances to bring home. Dr. Ling

testified that such patient and physician behavior concerned him,

because the patient's demands seemed to replace the physician's

judgment. He further testified that he was aware that some chronic pain

patients receive less medication than they needed, but that he

continued to maintain that it was still the physician's judgment that

should control.

Further, the Investigator interviewed approximately 10 local

pharmacists, and the names of Patient #2 and Patient #3 were given as

patients of the Respondent who also may have been overprescribed. On

October 24, 1990, the Respondent issued Patient #2 an original

prescription for 30 dosage units of Vicodin, he saw this patient again

on November 14, 1990, and although the Respondent did not see this

patient again until May 1, 1991, he authorized more than twenty refills

from the October 24, 1990, prescription for Vicodin, a medication

containing hydrocodone, a Schedule III controlled substance. Following

this same pattern, the Respondent also issued Patient #2 an original

prescription for Darvocet-N 100 on October 24, 1990, and between that

date and May 1, 1991, he authorized more than twenty refills of

Darvocet, a medication containing propoxyphene napsylate, a Schedule IV

controlled substance.

[[Page 55049]]

The parties stipulated that Patient #3 forged prescriptions. Of

record is a list of forged prescriptions under the Respondent's name,

indicating that on February 3, 1992, February 13, 1992, March 18, 1992,

April 17, 1992, April 18, 1992, April 20, 1992, and April 21, 1992, a

total of 396 dosages of Lortab were dispensed to Patient #3, a

medication which contains a Schedule III controlled substance. The

record contains evidence that acts were taken between January 1990 and

April 1992, to notify the Respondent of Patient #3's forgeries: (1) In

January 1990, a pharmacist contacted the Respondent's office about

forged prescriptions from Patient #3, (2) a letter dated February 6,

1992, was written to the Respondent informing him of a suspicious

prescription written to Patient #3 despite the Respondent's office's

verification of the prescription which the pharmacist had filled, and

(3) in April 1992, the Respondent received notification from another

pharmacist about forged prescriptions for a controlled substance for

Patient #3. However, the Respondent authorized the refills and

continued to prescribe Lortab for Patient #3.

Also, Patient #3 was interviewed by the Investigator and the Agent,

and a transcript of that interview was made a part of the record.

Patient #3 stated that he had been a patient of the Respondent's from

July 1990 to about June 1992, that he had told the Respondent of his

past drug addiction problems, but that the Respondent continued to

prescribe Lortab, a Schedule III controlled substance. He also stated

that the Respondent talked to him about forged prescriptions, that he

had denied forging the prescriptions, but that the Respondent had told

him that he did not believe his denial. However, the Respondent

continued prescribing Lortab even after this conversation. Patient #3

stated that in June 1992 he stopped receiving treatment from the

Respondent and that he went into a rehabilitation treatment center for

90 days to overcome his addiction to Lortab.

Finally, the Respondent testified that he believed Patient #3 had

valid complaints of pain stemming from history of back pain, that he

never received a copy of a forged prescription regarding Patient #3,

that he did not see such a copy until June 1992, when he then realized

Patient #3 had been deceiving him. Further, he stated that on June 1,

he told Patient #3 he should see another doctor, but that he gave his a

small supply of Lortab to take until he could get into a clinic on June

24th. He testified that Patient #3 returned to his office a week later,

but that he merely gave him a non-narcotic pain medication. After

reviewing Patient #3's chart, Dr. Ling concluded that the Respondent's

prescribing practices were excessive with poor documentation of the

need for those narcotics, demonstrating a lack of usual care and

precaution in dealing with these kinds of prescriptions.

Pursuant to 21 U.S.C. Sections 824(a)(4) and 823(f), the Deputy

Administrator may revoke or suspend a DEA Certificate of Registration

if he determines that the continued registration would be inconsistent

with the public interest. Pursuant to 823(f), the following factors are

to be considered ``in determining the public interest:''

(1) The recommendation of the appropriate State licensing board or

professional disciplinary authority.

(2) The applicant's experience in dispensing, or conducting

research with respect to controlled substances.

(3) The applicant's conviction record under Federal or State laws

relating to the manufacture, distribution, or dispensing of controlled

substances.

(4) Compliance with applicable State, Federal, or local laws

relating to controlled substances.

(5) Such other conduct which may threaten the public health or

safety.

These factors are to be considered in the disjunctive; the Deputy

Administrator may rely on any one or a combination of factors and may

give each factor the weight he deems appropriate in determining whether

a registration should be revoked or an application for registration

denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 54 FR 16422

(1989).

In this case, factors two, four, and five are relevant in

determining whether the Respondent's retention of his Certificate of

Registration would be inconsistent with the public interest. As to

factor two, the Respondent's ``experience in dispensing controlled

substances,'' the Deputy Administrator finds that both Dr. Denes and

Dr. Ling agreed that the Respondent's dispensing of controlled

substances to Patient #1 between January 1990 and February 1992, was

``highly irregular in the medical profession,'' and was excessive. To

be effective, a prescription for a controlled substance ``must be

issued for a legitimate medical purpose by an individual practitioner

acting in the usual course of his professional practice.'' 21 CFR

1306.04(a); see also Harlan J. Borcherding, D.O., 60 FR 28,796, 28,798

(1995). Here, Dr. Ling observed that the Respondent's management of

Patient #1's medical treatment demonstrated behavior such that the

patient's demands seemed to replace the physician's judgment. Such

actions on the part of the Respondent certainly bring into serious

question the legitimacy of his dispensing of controlled substances to

Patient #1. The Deputy Administrator has previously found that

prescriptions issued under such circumstances were not for a legitimate

medical purpose, when an undercover officer dictated the controlled

substance to be given, ``rather than Respondent, as a practitioner,

determining the medication appropriate for the medical condition

presented by the officer.'' Ibid. Here, Judge Tenney concluded, and the

Deputy Administrator agrees, that the Respondent's experience included

dispensing controlled substances to Patient #1 ``on demand,''

``virtually upon request,'' with ``virtually no scrutiny,'' and with

``virtually no records or monitoring in the early 1990[']s,'' and such

dispensing practices demonstrated the Respondent's ``gross lack of

judgment.'' See Borcherding, supra. Further, the Respondent's practice

of giving Patient #1 Xanax samples without documenting his record, also

leads to the conclusion, as Judge Tenney noted, that the Respondent's

prescribing and dispensing to Patient #1 was ``outside the context of

the Respondent's usual professional practice.''

Also, the dispensing of a controlled substance in the quantities

prescribed to Patient #3, a patient known to the Respondent as an

admitted drug abuser, even after receiving warnings of forged

prescriptions, demonstrates at least a lack of precaution, and more

probably a disregard of the requirements for detailed attention to

individual patient behavior necessary for the dispensing of controlled

substances. See, e.g., Jay Wheeler Cranston, M.D., Docket No. 92-70, 59

FR 36,786 (1994). Also, the excessive number of refills provided

Patient #2 over a six-month period of time without requiring a clinical

examination or visit, demonstrates a reckless disregard for medical

standards in dispensing controlled substances. Thus, the Deputy

Administrator agrees with Judge Tenney that the Government has

established a prima facie case under factor two.

As to factor four, ``compliance with applicable State, Federal, or

local laws,'' Federal regulations as well as State law established

requirements and refill restrictions. The Government's brief provided

excerpts of California law dealing with prescription refills and

requirements, and the Respondent did

[[Page 55050]]

not object to this statement of the State law.

Therefore, as to refills, Federal regulation, 21 CFR 1306.22(a),

provides in relevant part that ``[n]o prescription for a controlled

substance listed in Schedule III or IV shall be filled or refilled more

than six months after the date on which such prescription was issued

and no such prescription authorized to be refilled may be refilled more

than five times * * *. (4) The prescribing practitioner must execute a

new and separate prescription for any additional quantities beyond the

five refill, six-month limitation.'' Further, California Health and

Safety Code 11200 states in relevant part that ``[n]o person shall

dispense or refill a controlled substance prescription more than six

months after the date thereof or cause a prescription for a Schedule

III or IV substance to be refilled in an amount in excess of a 120 day

supply, unless renewed by the prescriber.'' In this case, the

Respondent authorized an original prescription to Patient #2 for

Vicodin, containing a Schedule III controlled substance, and Darvocet-N

100, containing a Schedule IV controlled substance, on October 24,

1990, and between that date and May 1, 1991, a time exceeding six

months, authorized more than twenty refills each for Vicodin and

Darvocet, in violation of both Federal regulation and State law.

As for recordkeeping requirements, 21 U.S.C. 827(a)(3) provides in

relevant part: ``* * * on and after May 1, 1971, every registrant under

this subchapter dispensing a controlled substance or substances shall

maintain, on a current basis, a complete and accurate record of each

substance * * * received, sold, delivered, or otherwise disposed of by

him,'' and 827(b) provides that ``Every inventory or other record

required under this section (1) shall be in accordance with, and

contain such relevant information as may be required by, regulations of

the Attorney General, (2) Shall (A) be maintained separately from all

other records of the registrant, or (B) alternatively, in the case of

non-narcotic controlled substances, be in such form that information

required by the Attorney General is readily retrievable from the

ordinary business records of the registrant, and (3) shall be kept and

be available, for at least two years, for inspection and copying by

officers or employees of the United States authorized by the Attorney

General.'' Also, 21 U.S.C. 842(a)(5) provides: ``It shall be unlawful

for any person-- (5) to refuse or fail to make, keep, or furnish any

record, report * * * order or order form, * * * required under this

subchapter or subchapter II of this chapter.''

Federal recordkeeping regulations also exist, and 21 CFR 1304.04(a)

provides in relevant part: ``Every inventory and other records required

to be kept under this part shall be kept by the registrant and be

available, for at least 2 years from the date of such inventory or

records, for inspection and copying by authorized employees of the

Administration.'' Further, 21 CFR 1304.24 requires dispensers to

maintain records for each controlled substance reflecting, among other

things, the number of commercial containers received, the number of

units dispensed, with detailed information concerning the person to

whom it was dispensed, and information concerning any other method of

disposal of the substance. Finally, 21 CFR 1305.03 dictates that a DEA

Form 222 be used for each distribution of a controlled substance listed

in Schedule I or II, and 21 CFR 1305.13 requires that these order forms

be maintained separately from all other records and ``are required to

be kept available for inspection for a period of 2 years.''

Applicable State statues, specifically California Health and Safety

Code 11190, require practitioners such as the Respondent, who issue a

prescription, dispense, or administer Schedule II controlled

substances, to create and maintain a record which identifies the

patient, pathology, and purpose for each such transaction. Per Section

11191, the record is to be maintained for three years, and violations

may result in criminal prosecution. Further, Section 11192 states that

``proof that a defendant received or has had in his possession at any

time a greater amount of controlled substances than is accounted for by

any record required by law * * * is prima facie evidence of a

violation of [section 11190].''

Here, the Investigator obtained ten DEA 222 order forms showing

that a local pharmacy had filled the Respondent's orders for Demerol

and morphine, Schedule II substances, and shipped the order between

April 16, 1990, and July 23, 1990. Yet on April 24, 1992, the

Respondent was unable or unwilling to produce, or make ``readily

retrievable,'' the documentation required to be maintained by both

Federal and State law as to the DEA Form 222. Also, on the day of the

execution of the search warrant, the Respondent had controlled

substances at his office and home, and yet the investigators could not

find the required biennial inventory documentation, receipts for the

controlled substances, either bought by the Respondent or distributed

to the Respondent gratis as samples, or his dispensing documentation.

In fact, the Respondent conceded that he did not keep receipts for

samples of controlled substances that he had been given, substances

such as Xanax, Valium, and Halcion, despite the statutory and

regulatory requirements to maintain such records. The Respondent argued

in his post-hearing brief that the failure to find the required records

does not establish by a preponderance of the evidence that he had

violated the recordkeeping statutes. However, the Respondent conceded

the lack of biennial inventory records, receipts for samples of

controlled substances, and a lack of dispensing records meeting the

statutory requirements. Further, the evidence established that the

Respondent was unable to produce at least seven DEA Form 222's upon

request. In total, the preponderance of the evidence established that

the Respondent has failed to comply with applicable Federal and State

laws relating to controlled substances. Such a blatant disregard for

statutory provisions implemented to maintain a record of the flow of

controlled substances and to prevent the diversion of controlled

substances to unauthorized individuals, would justify revocation of the

Respondent's registration. See, e.g., George D. Osafo, M.D., Docket No.

92-75, 58 FR 37,508, 37,509 (1993) (noting ``that Respondent failed to

comply with numerous recordkeeping requirements and noted that it is a

registrant's responsibility to be familiar with the Federal regulations

applicable to controlled substances''). Again, the Deputy Administrator

agrees with Judge Tenney that the Government has established a prima

facie case under factor four.

As to factor five, ``such other conduct which may threaten the

public health or safety,'' the Deputy Administrator finds relevant Dr.

Ling's testimony that the Respondent's failure to maintain accurate,

current, and complete patient treatment records for Patient #1, a fact

conceded by the Respondent, Patient #2, and Patient #3, demonstrated a

lack of usual care and precaution required of a physician, especially

one issuing controlled substance prescriptions supposedly in response

to documented patient need. A threat to public health and safety is

created by such inaccurate documentation, for, as noted by Judge

Tenney, ``[i]n the event that another physician were required to treat

either [Patient I or Patient II], i.e., if the Respondent suddenly fell

ill, such treatment could be seriously impeded

[[Page 55051]]

by the Respondent's shoddy documentation.''

Further, the Respondent's lack of attention to warnings received by

him or his staff concerning Patient #3's conduct in forgoing controlled

substance prescriptions, coupled with his knowledge of that patient's

drug abuse history, creates grave doubt as to the Respondent's

prescription practices to known drug abusers. Also, the record lacks

any evidence to show that despite such warnings, the Respondent ceased

prescribing controlled substances to this patient until he obtained and

documented accurate information about the amounts of such substances

actually received by Patient #3 through the use of these forged

prescriptions. Such conduct shows a carelessness inappropriate for

continued registration. The Deputy Administrator finds unconvincing the

Respondent's arguments that he should not be accountable for the acts

of Patient #3, for it is the inaction of the Respondent which forms the

gravamen of the problem warranting revocation of the Respondent's

registration: specifically, his failure to insure staff members pass on

warnings from local pharmacists, and his failure to heed and respond to

written communication received from local pharmacists, especially

concerning a patient known to the Respondent as having a history of

drug addiction.

The Government filed exceptions, the Respondent filed a Response to

the Government's Exceptions, and the Deputy Administrator has reviewed

these filings, concluding that only limited comment is required. First,

as to the Respondent's exception about the Government's evidence and

argument regarding the clinical decisions to be made concerning Patient

#3 and referral to a pain clinic, the Deputy Administrator agrees with

the Respondent, and such evidence and argument as to the timing of

physician treatment decisions pertaining to Patient #3's referral have

not been a factor in resolving this case. However, this response does

not mitigate the fact that the Respondent was provided notice of

Patient's #3 forged prescriptions as early as January 1990, and yet he

did not act to investigate or otherwise curtail prescribing controlled

substances to this patient, or act to obtain information verifying the

exact amount of controlled substances in this patient's possession.

Next, the Respondent takes exception to the Government's inferring that

the Respondent should be responsible for the acts of Patient #1 in

informing the Respondent of a potential undercover investigation. The

Deputy Administrator agrees and has not relied upon this fact in

analyzing or reaching his decision. The Respondent goes on to note that

he has not been charged with illegally prescribing medication to

undercover agents and that there was no evidence introduced at the

hearing that he participated in such activity. Such a statement is

true, but the Deputy Administrator notes that such evidence is not

required to justify a revocation. See Richard A. Cole, M.D., Docket No.

90-53. 57 FR 8677, 8680 (1992) (noting that conviction is not the only

ground or factor justifying a revocation, but rather finding that the

``Respondent's experience in dispensing controlling (sic) substances,

his compliance with laws relating to these drugs[,] and other conduct

which may threaten the public health and safety may likewise support

the revocation of a registration''). The remainder of the Government's

exceptions and the Respondent's response are of record and require no

further discussion here.

In conclusion, Judge Tenney wrote that he found ``overwhelming

evidence that the Respondent is both a respected physician and member

of his community, and that he has served it faithfully for many years.

In light of this evidence, I am confident that the Respondent will

remedy the deficiencies in his practice.'' Although acknowledging the

Respondent's evidence of his lengthy contribution to the community and

his status as an admired physician, the Deputy Administrator

respectfully declines to adopt Judge Tenney's finding as to the

Respondent's future correction of the deficiencies in his practice, or

Judge Tenney's resulting recommendation that the Respondent's DEA

Certificate of Registration be suspended for one year. Rather, reviewed

in total, the Deputy Administrator finds that the Respondent's (1)

failure to acknowledge the need for adequate recordkeeping to insure

controlled substances are not diverted into the public forum for

illegitimate purposes, (2) lack of remorse concerning his own unlawful

recordkeeping and refill practices, (3) failure to act in a timely

manner upon, and to take responsibility for, receipt of information

given to him or to his staff concerning the forged prescriptions of

Patient #3 and (4) lack of acknowledgment that the inadequate treatment

record of Patient #1 could have ultimately jeopardized that patient's

welfare, lead to the conclusion that the revocation of the Respondent's

DEA Certificate of Registration is in the public interest. See Leo R.

Miller, M.D., Docket No. 86-93, 53 FR 21,932, 21,933 (1988) (noting

that the revocation of a DEA Certificate of Registration ``is a

remedial measure, based upon the public interest and the necessity to

protect the public from those individuals who have misused * * * their

DEA Certificate of Registration, and who have not presented sufficient

mitigating evidence to assure the Administrator that they can be

trusted with the responsibility carried by such a registration''). The

Deputy Administrator is aware of the substantial impact of the

revocation of a physician's controlled substance registration, and it

is not a remedy which he orders without due consideration of

alternatives. However, the Deputy Administrator is also charged with

protecting the public from the harm resulting from the improper

handling of legitimately produced controlled substances.

Accordingly, the Deputy Administrator of the Drug Enforcement

Administration, pursuant to the authority vested in him by 21 U.S.C.

823 and 824, and 21 CFR 0.100(b) and 0.104, hereby orders that DEA

Certificate of Registration AD1048861, previously issued to Robert L.

Dougherty, Jr., M.D., be, and it hereby is, revoked. It is further

ordered that any pending applications for renewal of said registration

be, and hereby are, denied.

This order is effective November 27, 1995.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 95-26725 Filed 10-26-95; 8:45 am]

BILLING CODE 4410-09-M