Down is up. Right is left. “Monthly” means one single month. Illegally obtained evidence ruled inadmissible in a criminal case still can be used by a state agency to take away a doctor’s license.
Physicians can encounter a web of confusion and unfairness when it comes to navigating the Texas Medical Board (TMB). On those last two counts, at least, a Travis County district court has given Texas physicians clarity and hope when it comes to certain medical board investigations. The court’s decision, if it holds up, establishes an important precedent for when physicians are required to register their facility as a pain management clinic.
A family physician formerly of Victoria fought state prosecution and the TMB after warrantless searches of his two clinics in 2013 led to a criminal charge and devastating TMB sanctions. A Victoria County court excluded evidence from those searches from the criminal case, which was dismissed. But TMB continued to pursue administrative punishment of Courtney Morgan, MD, based on one month’s worth of prescribing statistics and other documents seized in the search. That one month of prescribing data, TMB claimed, was enough to require Dr. Morgan to have registered his facility as a pain management clinic because it supposedly exceeded the law’s threshold for certain prescriptions on “a monthly basis.”
In an April victory, a district court reversed TMB sanctions and an unfavorable State Office of Administrative Hearings (SOAH) ruling against Dr. Morgan. The court said “more than one month” of data is required for the clinic registration law. The judge also suggested that the law favors excluding the evidence from the warrantless searches.
The Texas Medical Association’s legal team is monitoring the case because of its potential ramifications for physician clinics and their rights when they come under TMB scrutiny.
Mesquite pain physician C.M. Schade, MD, who helped write the statute, says the decision preserves the original purpose of the law, which is to discern between good and bad medicine.
“The intent of this was to catch the bad guys. There were people that were consistently writing only narcotics and not doing anything else,” said Dr. Schade, past president of the Texas Pain Society.
On top of that, he adds, there aren’t enough pain management physicians to write the prescriptions patients need.
“It’s appropriate, it’s good medicine. … And I don’t know Dr. Morgan. I don’t know anything about his clinic,” Dr. Schade said. “But primary care has to help out.”
For his part, Dr. Morgan denies he ran a so-called “pill mill.” He says many primary care physicians are afraid to handle pain management because they don’t want the TMB spotlight turned on them. If primary care doctors and pain management clinics both are scared to run afoul of the law or TMB rules, he said, “These patients are stuck in the middle, and they’re forced to get their pain management from alternate routes.”
A "bad faith" search
In July 2013, TMB executed a subpoena on Dr. Morgan’s two Victoria clinics, Hop Medical Services and Drive Thru Doc, and conducted warrantless searches, according to court documents. Law enforcement officers were present during those searches, during which TMB seized medical records listed in the subpoenas, including prescription records for the year.
Under the state law, facilities must certify as a pain management clinic if a majority of its patients get prescriptions for opioids, benzodiazepines, barbiturates, or carisoprodol “on a monthly basis.”
The state indicted Dr. Morgan for practicing medicine at an uncertified pain management clinic.
Dr. Morgan argued in court filings that the Texas Department of Public Safety (DPS) received TMB’s investigative file and used the board’s “unlawful” actions to prosecute him. His attempt to exclude evidence from the search was successful, and the criminal case against him was thrown out.
When the Victoria County court granted his request to suppress the evidence, the court had strong words for the medical board. It said TMB “acted with bad faith in partnering up with law enforcement to conduct the search of the defendant’s business. The court finds that the TMB’s interest in serving the subpoenas upon the defendant was not a legitimate pursuit of its administrative authority but an exercise to circumvent both the Texas and U.S. Constitutions’ requirement for a warrant.” The court found that there were “several contacts” between TMB and the DPS regarding using the information from the searches to charge Dr. Morgan with a crime.
Through a spokesperson, TMB declined comment for this story, citing pending litigation.
A long fight
The state’s failure to prosecute Dr. Morgan didn’t deter the TMB from its effort to sanction him – and to use the evidence from the searches to do so. In March 2017, the board entered a final order against Dr. Morgan, finding that he that he failed to register Hop Medical Services as a pain management clinic; failed to properly document treatment of multiple patients; prescribed himself a drug for more than the allowed 72-hour period; and didn’t properly secure official prescription blanks.
TMB claimed in court documents that Dr. Morgan’s patient records for March 2013 showed that at Hop Medical Services, more than 60% of his patients received prescriptions for opioids, benzodiazepines, or carisoprodol.
TMB’s order placed him on 10 years’ probation – holding off on revocation of his license – contingent on a long list of conditions, including surrendering his DEA controlled substance registration and not reapplying for five years.
On Aug. 24, 2018, TMB revoked his license, saying he failed to comply with the March 2017 order, in part, by refusing to surrender his DEA registration.
Meanwhile, Dr. Morgan continued to fight the TMB actions, while moving in 2017 to Florida, where he now practices.
“Because [TMB] put in all these different sanctions, there was no way I could feel safe in keeping my office open without violating something,” he told Texas Medicine.
He argued, in part, that the evidence from the search should be excluded, just as it was in the criminal case against him; and that the board and the SOAH judge misinterpreted the law’s meaning of “a monthly basis” for prescribing patterns. TMB, meanwhile, argued extensively that the evidence from the search shouldn’t be excluded from “civil cases such as this one.”
But in April 2019, a district court – this time in Travis County – ruled in Dr. Morgan’s favor.
“At a minimum, the TMB should present evidence that the facility in question issued the majority of their patients’ prescriptions for the substance listed in [the law] for at least two months,” Judge Maya Guerra Gamble wrote in a letter to attorneys in the case. Because TMB didn’t do that, she wrote, “the evidence is not sufficient” that Dr. Morgan’s clinics should have been registered as pain management clinics.
In sending the case back to SOAH, Judge Gamble also instructed that office to “hear evidence regarding the warrantless searches and determine, according to this Court’s guidance, if the TMB’s evidence … should be excluded.” The state trial court’s previous findings on the searches, she said, provide “enough data to sound alarm bells and warrant further fact-finding” in the TMB case. The judge analyzed six factors from a previous case as guidance – all of which, she wrote, weigh “in favor of excluding evidence taken during the warrantless search of Dr. Morgan’s office.” Her final order says there’s evidence that suggests the searches may have violated his rights under both the state constitution and the Fourth Amendment of the U.S. Constitution.
Getting clarity
Dr. Schade says truly bad actors in drug prescribing – operators of “pill mills” – exceed the “majority” standard in the law by much more than Dr. Morgan allegedly did in March 2013.
“Average is average. You can’t average one month,” he said. “When you look at the distributions, the rogue, illegal ones are close to 100%. …. It’s not going to be 50, 60%.”
Erica Chaplin, a Florida attorney representing Dr. Morgan in an ongoing civil lawsuit against two TMB officials and a DPS agent, said: “The way this last judge interpreted the word ‘monthly’ is the way anyone would interpret the word ‘monthly.’ It’s a pattern.”
Dr. Morgan says if his license is reinstated and the case resolves in a way that he feels comfortable returning to Texas to practice, he will do so.
“It’s in my near future,” he said, “because there’s a lot of need for patients in Texas, especially in those rural areas.”
Tex Med. 2019;115(7):32-34
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