Ghanem v. State

689 S.W.3d 354

Fadi Georges GHANEM, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-22-00447-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed January 11, 2024.

On appeal from the 9th District Court of Montgomery County, Texas, Hon. Philip Grant, District Judge.

ATTORNEY OF RECORD FOR THE APPELLANT: Angelica Cogliano, Cogliano Law Firm, 505 West 12th St., Ste. 206, Austin, TX, 78701.

ATTORNEYS OF RECORD FOR THE APPELLEE: Brett W. Ligon, District Attorney, 207 W. Phillips, 2nd Floor, Conroe, TX, 77301, William J. Delmore lll, Amy Waddle, Assistant District Attorney’s Office, 207 W. Phillips, 2nd Floor, Conroe, TX, 77301.

Before Chief Justice Contreras and Justices Benavides and Tijerina

OPINION

Opinion by Chief Justice Contreras

Appellant Fadi Georges Ghanem was convicted of practicing medicine in violation of Subtitle B, Title 3 of the Texas Occupations Code, a third-degree felony. See Tex Occ. Code Ann. § 165.152. His sentence of ten years’ imprisonment was suspended and he was placed on community supervision for seven years. On appeal, Ghanem argues: (1) "the statutes under which [he] was prosecuted are ambiguous and unconstitutionally vague on their face and as applied" to him; and (2) the trial evidence was insufficient to establish that the facility he operated was a "pain management clinic" under the applicable statutory definition. See id, § 168.001(1). We affirm as modified.¹

I. Background

Chapter 168 of the Texas Occupations Code governs the regulation of pain management clinics. Section 168.101(a) provides that "[a] pain management clinic may not operate in this state unless the clinic is certified under" Chapter 168, id. § 168.101(a), and it is a criminal offense to practice medicine in violation of this statute. See id. § 165.152(a). For purposes of Chapter 168, "pain management clinic" means "a publicly or privately owned facility for which a majority of patients are issued on a monthly basis a prescription for opioids, benzodiazepines, barbiturates, or carisoprodol, but not including suboxone." Id. § 168.001(1). But the chapter "does not apply" to "a clinic owned or operated by a physician who treats patients within the physician’s area of specialty and who personally uses other forms of treatment, including surgery, with the issuance of a prescription for a majority of the patients." Id. § 168.002(7).

Ghanem, a family physician who has been in private practice for over two decades, was indicted for "intentionally, knowingly, or recklessly operating a pain management clinic" while the clinic was not certified under Chapter 168. See id. § 165.152(a). Prior to trial, Ghanem filed a motion to quash the indictment, arguing that occupations code § 168.002(7) is unconstitutionally vague "because the phrase ‘personally uses other forms of treatment’ is not specifically defined and is not of common understanding." The trial court did not explicitly rule on the motion. At trial, the principal dispute was whether the § 168.002(7) exemption applied to Ghanem’s practice.

Sangeeta Sinha, Ghanem’s office administrator since 2012, testified that, though Ghanem’s practice treated patients for a wide variety of ailments, "around 80 percent" of its patients were prescribed controlled pain medications such as those listed in the statute. Most patients were also prescribed non-controlled medications. Sinha said she became concerned that "[o]ur number of patients receiving the controlled medications were high," and she expressed that concern to Ghanem. At one point, she suspected that Ghanem was not checking Prescription Monitoring Program (PMP) records to determine if patients already had prescriptions for controlled medications from other physicians, so she made sure those records were given to him in writing. She said that Ghanem never attempted to have his facility certified as a pain management clinic under Chapter 168 because "[t]hat brings, like, lots of scrutiny." On cross-examination, Sinha denied that Ghanem "ever s[aw] patients that were coming in only for pain medication and would only receive controlled substances from him." And she agreed that Ghanem discharged multiple patients "for not complying with the controlled substance agreement or for testing dirty on a urine test."

According to Sinha and other witnesses, in 2015, Ghanem began operating an "integrated therapy program" called "Hundred Hands Alliance" (HHA) through which patients were provided with alternative services such as meditation, acupuncture, yoga, massage, cupping, herbal remedies, and group counseling. Sinha stated that Ghanem personally brewed herbal tea for patients. Ghanem’s former patient, Georgia Carroll, testified that she developed the program along with Ghanem. The program consisted of free weekend and night classes taught by Ghanem which were sometimes held in the lobby of his clinic in The Woodlands. Carroll stated that, in addition to teaching patients about alternative medicine techniques, Ghanem personally performed cupping and acupuncture on certain patients. Sign-in sheets showed that around twenty patients attended two HHA meetings in March of 2019.

Joe Nichols of the Montgomery County District Attorney’s office testified that he was tasked with investigating criminal of- fenses involving prescription drugs. By analyzing PMP data and appointment records, Nichols determined that Ghanem’s practice treated 589 patients in March of 2019, and that over 75 percent of those patients were prescribed one of the controlled pain medications listed in § 168.001(1). Detective Kenneth Wakefield of the Montgomery County Sheriff’s Office visited Ghanem’s practice undercover on May 15, 2019, posing as a prospective patient. He complained of elbow pain resulting from a fictitious car accident which he said occurred "a couple years prior," and he advised Ghanem’s staff that he was allergic to codeine, an opioid. According to Wakefield, after a brief physical examination and without ordering any additional diagnostic tests or asking to see any records, Ghanem diagnosed him with asthma and prescribed him Tylenol with codeine, tramadol (another opioid), and carisoprodol (known by the brand name Soma).² Wakefield paid $250 in cash.

Mehran Rahbar, M.D., the chief of pain management and chair of the opioid safety committee at the VA Medical Center in Houston, testified as an expert for the State. He stated he was asked to review records, including CPT (Current Procedure Terminology) billing codes and patient files, to determine whether Ghanem used "treatment procedures other than prescribing pain medication" for a majority of his patients. Rahbar opined that the mere act of writing of prescription for a medication not listed in § 168.001(1) does not qualify for the exemption because the treatment—i.e., the actual administration of medicine—is typically "not personally performed" by the physician. However, he agreed that injections of such medications would be "other forms of treatment" which qualify for the exemption, provided they were personally performed by the physician. According to Rahbar’s analysis, Ghanem personally performed "other forms of treatment" on only 105 of the 589 patients his practice saw in March of 2019. Therefore, Rahbar opined that Ghanem’s practice did not qualify for the § 168.002(7) exemption.

Amy Swanholm, an attorney and manager of the litigation and enforcement support division of the Texas Medical Board (TMB), testified that she is familiar with Chapter 168 of the occupations code and has provided training to physicians concerning the statute. When asked to explain what "personally used other forms of treatment" means in the context of the § 168.002(7) exemption, Swanholm testified:

Well, so my understanding of the intent of the statute based on the legislative history and, you know, other things is that this statutory exemption from pain management clinic registration was intended to apply to practices where a physician is really doing a lot of other things besides just issuing prescriptions. They are doing injections, they are performing surgery, they are performing other sorts of procedures that address chronic pain, not just issuing a prescription drug to the patient on a monthly basis…. And it has to be for a majority of the patients during the time period that we’re looking at.³

Swanholm explained that "personally used" means that "the physician them- selves [sic] is doing the thing," so referrals to other providers would not qualify. She also opined that diagnostic testing would not qualify because diagnosis is different from treatment. Swanholm agreed that TMB does not publish rules or other guidance explaining how to apply § 168.002(7)—such as a list of "other forms of treatment" which would or would not qualify under the exemption—because medical standards, including "what treatments are appropriate for pain management," change frequently over time.

When asked whether "other forms of treatment" could include the prescribing of medications other than those listed in the statute, Swanholm replied:

So, you know, generally what we’re looking at is other forms of treatment besides a prescription. It’s something that we would probably look at in our audit and consider. But generally if you look at the language of the statute it seems like it[’]s designed to other things [sic] besides that prescription that’s being issued for chronic pain.

On cross-examination, she conceded that "issuing a prescription, prescribing a drug is a means of treating a patient." Swanholm also agreed on cross-examination that, if TMB sought to revoke Ghanem’s medical license on grounds that he operated an uncertified pain management clinic, Ghanem would be entitled to a hearing before the State Office of Administrative Hearings, and in such a proceeding, her opinion as to the construction of the statute would not necessarily be controlling.

Robert Bredt, M.D., TMB’s medical director, testified that...