HED: Tupelo physician fighting board over drug license suspension
By Marty Russell
A Tupelo physician who had his license to dispense certain opioid or narcotic drugs suspended by the State Board of Medical Licensure says he was singled out unfairly for disciplinary action, was not provided due process under the law and that the board’s investigations have created an atmosphere of fear that is preventing doctors from adequately treating their patients.
Dr. John McFadden is appealing a November 1996 ruling by the state board that suspended for five years his license to prescribe certain drugs commonly used for pain relief but also considered addictive. McFadden, who operates the Tupelo Pain Clinic, claims he was only doing his job and that, with the state board acting as both judge and jury, he did not receive a fair hearing.
His appeal had been filed in Hinds County Chancery Court and is expected to be heard this summer, although the state board’s track record is unblemished. Officials say there has never been a successful appeal of the board’s decisions, a factor McFadden’s attorney points to as additional evidence that the board’s hearings are unfair.
“They targeted me because (the investigators) are under pressure from (the board) to quote, ‘Get doctors,'” said McFadden, who still practices, but now prescribes non-narcotic medicines to his patients.
“I specialize in pain medicine and we use opioids frequently (in treatment),” he said. “I’m not doing anything that I haven’t been doing for the past 15 years. … To be added in with doctors who take drugs and sell drugs and trade drugs for sex is not right.”
McFadden’s case resulted from a “pharmacy profile” of all pharmacies in the Tupelo area conducted by state board investigators looking for excessive prescriptions of controlled drugs by area physicians. Further investigation resulted in four of McFadden’s patient files being singled out for excessive prescriptions and improper record keeping.
McFadden admits to some record keeping deficiencies but defends his treatment of the four patients.
“They singled out two of my worst pain patients,” he said of the four cases cited by the board of excessive prescriptions.
Alex A. Alston of Jackson, McFadden’s attorney, said his client’s actions were legitimate treatments and that two doctors testified to that effect at his hearing last November.
“Dr. McFadden was wronged by this board,” Alston said. “They set out to get him for prescribing controlled substances which is quite legitimate because he’s a pain doctor. Of course he’s going to prescribe more than other doctors in the area.”
Alston said the state board’s hearing process also does not provide due process under the law with the board acting as judge and jury.
“Dr. McFadden was arrayed against a prosecutor that was the entire board,” he said. “He had no right to cross-examine board members. You can’t put evidence on record and not have a chance to rebut (the board).”
Alston said the board’s record of 100 percent rulings in its favor also points to flaws in the system.
“A judge is supposed to be fair and impartial, but everybody who comes before them is guilty,” he said of the nine-member board appointed by the governor.
Dr. Thomas Stevens, executive director of the state board, defends the process, saying all consent orders and evidence are prepared and gathered by staff members before anything is presented to the board in an effort to prevent prejudice in a case.
“There could not be a better judge and jury of their peers,” Stevens said.
McFadden, who said he is prepared to appeal his case all the way to the U.S. Supreme Court if necessary, said the board’s actions are having a chilling effect on doctors’ treatment of patients, particularly those in pain.
“Physicians in north Mississippi are terrified of pain patients,” he said, because of fear of sparking a state board investigation. “No one wants to see a pain patient. I can’t name a single physician who is giving pain medication to a significant number of pain patients. My attitude is, I tell those physicians to send me their pain patients and let me deal with the medical board.”