Elder v. Bureau of Prof'l & Occupational Affairs

206 A.3d 94

Christopher ELDER, Petitioner

v.BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Board of Medicine, Respondent

No. 66 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued: November 13, 2018

Filed: March 27, 2019

Richard Q. Hark, Philadelphia, for petitioner.

Kerry E. Maloney, Counsel, Harrisburg, for respondent State Board of Medicine.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Christopher Elder petitions for review of the December 21, 2017, adjudication of the Pennsylvania Bureau of Professional and Occupational Affairs (Bureau), State Board of Medicine (Board), that denied his application for a license to practice medicine and surgery. The Board denied Elder's application because of his 2010 felony convictions for participating in a conspiracy to distribute controlled substances. The Board rejected the recommendation of its Hearing Examiner that Elder be granted a provisional license, subject to completion of a Board-approved remediation program and followed by a three-year period of probation. For the reasons that follow, we vacate the Board's adjudication and remand for further proceedings.

Procedural Posture

On October 14, 2014, Elder submitted an application to the Board for a license to practice medicine and surgery in Pennsylvania. The Board provisionally denied Elder's application by letter of April 2, 2015.

The Board's decision stated several grounds. First, Section 9124(c)(1) of the Criminal History Record Information Act (CHRIA) authorized the Board to deny a license to an applicant who has been convicted of a felony. 18 Pa. C.S. § 9124(c)(1). Second, Sections 22(b), (c) and 41 of the Medical Practice Act of 1985 authorized the Board to deny a license to an applicant who lacks good moral character and who cannot demonstrate the requisite training and experience. Act of December 20, 1985, P.L. 457, as amended , 63 P.S. §§ 422.22(b), (c), 422.41. Third, Elder's convictions, although under the laws of another jurisdiction, would constitute felonies under The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended , 35 P.S. §§ 780-101 – 780-144, that bar the issuance of a medical license for ten years.

Elder appealed the Board's provisional denial, and on December 9, 2015, the Board's Hearing Examiner conducted a formal administrative hearing on Elder's appeal. Elder was represented by legal counsel and testified on his own behalf.

Factual Background

Elder obtained his medical degree from the Medical College of Pennsylvania and Hahnemann University School of Medicine in 1999. He completed his internship in internal medicine at the Medical College of Pennsylvania and Hahnemann University School of Medicine in 2000. Elder then completed his residency at the Baylor College of Medicine in 2003. In 2005, Elder completed and received a full board certification in physical medicine and rehabilitation at the Mayo Clinic in Rochester, Minnesota.

On August 15, 2003, Elder was licensed to practice medicine and surgery in Texas. Elder began working part-time for the South Texas Wellness Center in Houston, Texas as a locum tenens in August 2004, while studying for his board examination. Elder left that part-time job in January 2005.

During his tenure at the South Texas Wellness Center, Elder prescribed medication for patients, including Schedule III, IV, and V controlled substances. On February 5, 2008, the United States filed a 24-count criminal indictment against Elder and four co-defendants in the matter of United States v. Mary Lynn Rostie, Cynthia S. Martin, Troy R. Solomon, Christopher L. Elder, and Delmon L. Johnson ,¹ in the United States District Court for the Western District of Missouri. The indictment alleged that Elder wrote 544 prescriptions for Schedule III, IV, and V controlled substances, which were not used for a legitimate medical purpose and prescribed outside the usual course of professional practice. Reproduced Record at AA376 (R.R. ––).

On June 30, 2010, a jury found Elder guilty of one felony count of Conspiracy to Possess and Distribute Controlled Substances, 21 U.S.C. §§ 841, 846, and eight felony counts of Aiding and Abetting Distribution of Controlled Substances, 21 U.S.C. § 841, 18 U.S.C. § 2.² The sentencing judge stated that he viewed Elder's role in the conspiracy differently than the government. More specifically, the judge stated:

Clearly Dr. Elder was found guilty by this jury of complicity in this conspiracy. I'm not sure that I agree with the government's proposition that he was the linchpin here. My guess is that from the evidence, that if Dr. Elder hadn't done it, they would have found someone else to do it.

My interpretation of Dr. Elder's participation in this conspiracy was of gross negligence, not anything more than that. He ha[d] a responsibility that he didn't fulfill. The reason why he didn't fulfill it, I'm not sure. I don't see it for financial gain necessarily because I don't see that to be the issue here. So I see it being most likely gross negligence.

R.R. AA341 (Sentencing Hearing Transcript, 5/3/2011, at 56). Elder was sentenced to a term of imprisonment of 15 months (a significant downward departure from the U.S. Federal Sentencing Guidelines) followed by two years of supervised release, and ordered to forfeit $ 991,114,³ for which he was found jointly and severally liable with his co-defendants. The United States Court of Appeals for the Eighth Circuit affirmed Elder's criminal convictions.⁴

The Texas Medical Board did not take action against Elder's license as a consequence of his indictment. However, on August 23, 2010, it suspended his medical license because of his convictions. In 2012, the Texas Medical Board denied Elder's petition to terminate the suspension of his medical license. In 2014, the Texas Medical Board refused to reinstate Elder's medical license, which expired.

At the hearing on his request for a Pennsylvania medical license, Elder testified. He explained that he wants to relocate to Pennsylvania, where he earned his medical degree, to be closer to his parents who live on the East Coast. Elder also described his post-conviction activities. He volunteers for the Howard Calvert Foundation for Hunger, where he helps distribute food to the homeless and serves as a mentor to under-privileged youth. As a mentor, he helps the students build mathematical, science, verbal reasoning and verbal comprehension skills. He has also served as the foundation's inventory analyst for its food pantry. Additionally, Elder volunteers to instruct paramedics and emergency medical service personnel on the placement of cervical collars and cervical spine stabilization techniques.

Since he has stopped practicing medicine, Elder has completed 78 credit hours of continuing medical education. Elder testified that he presently earns a living by working three days a week in the construction business.

Elder testified that he takes full responsibility for the actions that led to his criminal convictions. He acknowledged his failure to handle medical records appropriately. In his closing remarks, Elder stated:

I'd like to say that I'm really remorseful for several things. One is allowing myself to be placed in a predicament to be utilized by others. That's just straight out being naïve. I'm not a criminal. I was naïve, got used, got duped ... [I went into] a den of wolves who [were] taking [my] credentials and literally using them. I just didn't know better. I'm deeply remorseful that I didn't know better, or I just didn't have the insight to think like that. Doctors aren't trained to think like criminals.

* * *

One of the things I learned is that, I accept responsibility for my actions. My responsibility may not have been direct, but nevertheless, I am still at the end of the day accountable because [my] prescriptions appeared somewhere where they didn't belong.

* * *

I desire a second chance because this thing has tormented me. How could I work so hard to get used the way that I did, and I got used.

* * *

I absolutely accept responsibility.... Wrong people, a wrong time, and it was the wrong issue.

Notes of Testimony, 12/9/2015, at 163-170 (N.T.––); R.R. AA167-AA174.

Celious Barner III, a psychologist in Texas, testified that Elder is well regarded in his professional community. Barner testified that after Elder's release from prison, Elder donated his time and talent to several community-based organizations. Before Elder lost his medical license, Barner worked with Elder on an interdisciplinary team providing treatment to indigent patients who would not otherwise have had access to the level of treatment that Elder could provide. Both doctors worked on this team until 2008 and have maintained a collegial relationship and friendship. Barner stated that Elder is "very remorseful." N.T., 12/9/2015, at 28; R.R. AA32.

Lionel Lynch, a physician's assistant in Texas, testified about his professional relationship with Elder, who served as Lynch's supervisor at the South Texas Wellness Center. Lynch testified about Elder's work with patients who are indigent or less able to care for themselves. He testified that Elder had a good reputation.

Howard Calvert, CEO of the Howard Calvert Foundation for Hunger of Texas, testified about Elder's involvement with his non-profit organization, as well as Elder's mentorship to at-risk youth in the Houston area. Elder continued with this volunteer service after his release from prison and after the completion of his supervised release term.

Attorney John Osgood, who represented Elder in the federal criminal prosecution, testified on behalf of Elder. He explained that he has stayed in contact with Elder since his conviction. Osgood testified that during Elder's nearly six-month tenure at the Texas Wellness Center, he saw approximately 10 patients a day for whom he wrote prescriptions. Some...