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Ahmad v. Arkansas State Medical Board

Court of Appeals of Arkansas, Division I

February 14, 2018

MAHMOOD AHMAD APPELLANT
v.
ARKANSAS STATE MEDICAL BOARD APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-16-5765] HONORABLE TIMOTHY DAVIS FOX, JUDGE

          Gill Ragon Owen, P.A., by: Drake Mann, for appellant.

          Hope, Trice, O'Dwyer & Wilson, P.A., by: Kevin M. O'Dwyer, for appellee.

          RAYMOND R. ABRAMSON, Judge

         Dr. Mahmood Ahmad appeals the Pulaski County Circuit Court order adopting the order of the Arkansas State Medical Board (the Arkansas Board) revoking his Arkansas medical license. On appeal, Dr. Ahmad argues that the Arkansas Board's decision is (1) not supported by substantial evidence; (2) arbitrary, capricious, and characterized by an abuse of discretion; and (3) unduly harsh. We affirm.

         Dr. Ahmad was a licensed medical physician in Alaska and Arkansas. He is board certified in anesthesiology and holds a subspecialty certification in pain management. Both the Alaska State Medical Board (the Alaska Board) and the Arkansas Board initiated disciplinary proceedings against Dr. Ahmad. To resolve the issues on appeal, a discussion of both disciplinary proceedings is necessary.

         On May 4, 2016, Alaska's Department of Commerce, Community, and Economic Development, Division of Corporations, Business and Professional Licensing (the Division) petitioned the Alaska Board for a suspension of Dr. Ahmad's Alaska medical license. The petition stated as follows:

This petition is made pursuant to AS 08.64.33 1(c), which provides that the Board suspends a license before a final hearing or during the appeals process if the Board finds [illegible] licensee poses a clear and immediate danger to the public health and safety if the [illegible] continues to practice. If Ahmad's license is suspended under this paragraph, he may [illegible] the suspension by requesting a hearing conducted under the provision of the Administrative Procedure Act (AS 44.62).

. . . .

The Division's petition is supported by the affidavit of Division Investigator Winton. In her affidavit, Investigator Winton states that the Division, on behalf [illegible] received numerous complaints from licensed pharmacists in the Anchorage ar[illegible] prescribing practices of Ahmad. Investigator Winton compiled statements [illegible] pharmacists who expressed concerns about possible overprescribing by Ahmad and possible drug diversion by Ahmad's patients. Investigator Winton's Affidavit states, after a thorough investigation, all material compiled was reviewed by an independent pain management expert, Dr. Brett R. Stacey.

. . . .

Dr. Stacey determined Ahmad's inappropriate assessment and treatment of his patients reflects a reckless disregard for the safety of his patients, their families, and others. Dr. Stacey concluded Ahmad demonstrated professional incompetence, gross negligence, or repeated negligent conduct; by prescribing controlled substances for every patient with a complaint of chronic back pain.
Dr. Stacey also found that Ahmad violated prescribing practices statutes and regulations in Alaska, and Ahmad engaged in deceit, fraud, or intentional misrepresentation while providing professional service or engaging in professional activities. Dr. Stacey concluded Ahmad's medical practice is at variance with established state standards in any jurisdiction in the US; Ahmad's history, documentation, diagnosis, and treatments, including his prescribing practices, are not safe; and Ahmad poses a clear and immediate danger to public health and safety. Such conduct, which violates AS 08.64.326(a)(2)(7)(8)(A)(9) and 12 AAC 40.975, is also alleged in the attached accusation.

         On May 6, 2016, the Alaska Board issued an order granting the Division's petition and ordering a summary suspension of Dr. Ahmad's license pursuant to Alaska Statute 08.64.331(c). It found that Dr. Ahmad posed a clear and immediate danger to public health and safety if he continued to practice medicine. The order provided, "Dr. Ahmad's license to practice medicine in Alaska will remain suspended, until such time as Dr. Ahmad can demonstrate to the Board that he is fit to practice in a manner consistent with public safety." Dr. Ahmad appealed the summary suspension.

         On May 19, 2016, the Arkansas Board issued an emergency order suspending Dr. Ahmad's Arkansas license pending a disciplinary hearing. The basis for the emergency suspension was the May 6, 2016 order by the Alaska Board granting the Division's petition for a summary suspension.

         On June 2, 2016, Dr. Ahmad voluntarily surrendered his Drug Enforcement Administration (DEA) permit to prescribe controlled substances. At the June meeting of the Arkansas Board, after a review of Dr. Ahmad's surrender of his DEA permit, the Arkansas Board denied Dr. Ahmad's request to convert the May 19, 2016 emergency order to a show-cause order.

          On June 27, 2016, following an expedited evidentiary hearing, an Alaska administrative law judge (ALJ) entered an order upholding the Alaska Board's summary suspension of Dr. Ahmad's license. The ALJ found that the Division had established that Dr. Ahmad violated Alaska Statute sections 08.64.326(a)(8)(A) and (a)(9) and 12 Alaska Administrative Code section 40.975 and further that Dr. Ahmad's prescribing practices constituted a clear and immediate danger to the public health and safety pursuant to Alaska Statute 08.64.331(c). In the order, the ALJ explained, "Unless overturned, a summary suspension under AS 08.64.331(c) then remains in place until resolution of disciplinary proceedings under AS 08.64.331(a)." The ALJ further explained, "'The decision of the board following a hearing on a summary suspension is final as to the summary suspension order, but absent consent or prior notice to the parties, it is not a final decision as to the merits of a pending accusation for final disciplinary action."[1] On August 4, 2016, the Alaska Board adopted the findings of the ALJ and upheld Dr. Ahmad's suspension.

         Also on August 4, 2016, at the August meeting of the Arkansas Board, the Board voted to lift the emergency suspension of Dr. Ahmad's license pending the Alaska proceedings, and it scheduled a show-cause hearing for October 2016. The Arkansas Board had yet to be notified of the Alaska Board's order upholding the ALJ's decision.

         On August 11, 2016, the Arkansas Board issued Dr. Ahmad an order and notice of its October hearing. The order referenced the June 27, 2016 order from the Alaska ALJ upholding Dr. Ahmad's summary suspension, and the Board alleged that Dr. Ahmad had violated the Arkansas Medical Practices Act, more specifically, Arkansas Code Annotated section 17-95-409(a)(2)(R)(Repl. 2010), by violating a statute, rule, or regulation of another state involving the practice of medicine.[2] A hearing was set for October 7, 2016, to decide whether Dr. Ahmad had violated the Act and, if so, to decide the appropriate sanctions.

         On August 26, 2016, the Alaska Board accepted Dr. Ahmad's voluntary surrender of his Alaska medical license "in lieu of potential revocation of licensure for professional incompetence, gross negligence, repeated negligent conduct, and unprofessional conduct by Dr. Ahmad's opioid prescribing practices."

         Following a hearing on October 7, 2016, the Arkansas Board entered an order on October 13, 2016, revoking Dr. Ahmad's license pursuant to Arkansas Code Annotated section 17-95-409(a)(2)(R) for violations of a statute, rule, or regulation of another state involving the practice of medicine. The Arkansas Board cited the Alaska Board's adoption of the ALJ's findings on the summary suspension of Dr. Ahmad's Alaska license.

          Dr. Ahmad appealed the Arkansas Board's decision to the circuit court, and on June 6, 2017, the court entered a written order affirming the Arkansas Board's decision. Dr. Ahmad ...


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