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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Odom v. State, Division of Corporations, Business & Professional Licensing (2/9/2018) sp-7220

Odom v. State, Division of Corporations, Business & Professional Licensing (2/9/2018) sp-7220

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                   

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



DAVID  M.  ODOM,  M.D.,                                      )  

                                                             )         Supreme  Court  No.  S-16151  

                              Appellant,                    )  

                                                                                                                              

                                                             )         Superior Court No. 3AN-14-08082 CI  

                    v.                                       )  

                                                             )                            

                                                                       O P I N I O N  

                                     

STATE OF ALASKA, DIVISION                                    )  

                                                         

OF CORPORATIONS, BUSINESS                                    )                                              

                                                                      No. 7220 - February 9, 2018  

                                                             )  

& PROFESSIONAL LICENSING,  

                                                             )
  

                              Appellee.                      )
  

                                                             )
  



                                                                                                                 

                                 rom the Superior Court of the State of Alaska, Third  

                    Appeal f 

                                                                                             

                    Judicial District, Anchorage, Kevin M. Saxby, Judge.  



                                                                                                                 

                    Appearances:              Lee   Holen,   Anchorage,   for   Appellant.  

                                                                                                          

                    Robert C. Auth, Assistant Attorney General, Anchorage, and  

                                                                                               

                    Jahna Lindemuth, Attorney General, Juneau, for Appellee.  



                                                                                                    

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                       

                    and Carney, Justices.  



                                         

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                                                                                                                               

                    The  state  professional  licensing  division  brought   an  accusation  of  



                                                                                                                                

professional misconduct against a doctor, alleging that he acted incompetently when he  



                                                                                                                          

prescribed phentermine and thyroid hormone for one of his patients. The division sought  



                                                                                                                              

disciplinary sanctions against the doctor.  Following a hearing, an administrative law  


----------------------- Page 2-----------------------

judge issued a proposed decision concluding that the division had failed to show that the                                                                                                                                                            



 doctor's conduct fell below the standard of care in his field of practice and that no                                                                                                                                                               



 disciplinary sanctions were warranted.                                                                              But the Medical Board instead adopted as its                                                                                     



 decision the proposal for action submitted by the division and revoked the doctor's                                                                                                                                                 



 medical license.                                 



                                        On appeal to the superior court, the case was remanded to the Board for                                                                                                                                      



 consideration of the doctor's own late-filed proposal for action.                                                                                                                          The Board reaffirmed               



 its decision to revoke the doctor's medical license, and the superior court affirmed that                                                                                                                                                         



 decision.  



                                        The doctor appeals to this court.  Because the Medical Board's decision to  

                                                                                                                                                                                                                                                        



 revoke the doctor's medical license is not supported by substantial evidence, we reverse  

                                                                                                                                                                                                                                         



 the superior court's affirmance of that decision.  

                                                                                                                  



 II.                FACTS AND PROCEEDINGS  

                                                                

                                        David Odom is a bariatric physician1  

                                                                                                                                                                                                                                                        

                                                                                                                                                     who has been licensed to practice in  



                                                                                                                                                                                                                                 

 Alaska since 1974. His Fairbanks practice focused on anti-aging, weight loss treatment,  



                                                                                                                                                                                                                                                       

 and natural hormone replacement therapy.  He is certified by the American Board of  



                                                                                                                                                                                                                                                    

 Medical Specialties in anesthesiology and by the American Academy of Anti-Aging and  



                    1                   Bariatrics is a branch of medicine that deals with the causes, prevention,                                                                                                          



 and treatment of obesity.                                                  Bariatrics, T                            HE   SLOANE-DORLUND ANNOTATED  MEDICAL- 

     EGAL DICTIONARY (1987).  

 L                                                           



                                                                                                                           -2-                                                                                                                 7220
  


----------------------- Page 3-----------------------

                                                   2  

Regenerative Medicine,                                 and he has been admitted to practice in                                                   six  states besides   



Alaska.   The disciplinary action in this case is his first.                                               

              A.            Dr. Odom's Treatment Of S.Q.                                           3  



                                                                                                                                                                                

                            In April 2007 Dr. Odom began seeing S.Q. for weight loss treatment and  



                                                                                                                                                              

hormone evaluation.   He noted at her first appointment that she had an "irregularly  



                                                                                                                                                                

irregular" heartbeat; she reported that in 2002 she had been diagnosed with peripartum  



                                                                                                                                                                       

cardiomyopathy, though it was currently asymptomatic.  Cardiomyopathy is a disease  



                                                                                                                                                            4  

                                                                                                                                                               

of  the  heart  muscle  that  can  lead  to  sudden  cardiac  arrest  and  death;                                                                              peripartum  



                                                                                                                                                                               

cardiomyopathy by definition begins during thefinal month ofpregnancy or within a few  



                                                      5  

                                                          

months after giving birth. 



                                                                                                                                                                     

                            Dr. Odom recorded his initial impressions:  thyroid deficiency, hormone  



                                                                                                                                                                                 

imbalance, cardiomyopathy, and obesity.   S.Q. signed an informed consent form for  



                                                                                                                                                                         

weight  loss  treatment  and  another  for  hormone  supplement  therapy.                                                                                       Dr.  Odom  



                                                                                                                                                                

scheduled weekly appointments for S.Q. from April through June 2007, continuing  



                                                                                                                               

monthly into September, so he could monitor her progress.  



              2             Dr. Odom is not board-certified in bariatrics, but the Medical Board does                                                                         



not require physicians to be board-certified in the fields in which they specialize.                                                                                           See  

AlaskaStateMedicalBoard,                                   Practicing aSpecialtywithout beingBoard-Certified                                                              in that  

Specialty  (Jan. 24.2008), http://www.commerce.alaska.gov/web/portals/5/pub/MED_                                                                                                         

Guide_Speciality_Practice.pdf.  



              3             We use the patient's initials to protect her privacy.  

                                                                                                                      



              4             Cardiomyopathy, STEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                                       

                                                                   



              5  

                                                                                            

                            Cardiomyopathy, peripartum, STEDMAN'S MEDICAL DICTIONARY  (28th ed.   

2006);    see    also    Peripartum    cardiomyopathy,    AMERICAN                                                                     HEART             ASSOCIATION.  

                                                                                                                                                                                         

http://www.heart.org/HEARTORG/Conditions/More/Cardiomyopathy/  

                                                                                                                                                                                 

Peripartum-Cardiomyopathy-PPCM_UCM_476261_Article.jsp. (last updated Sept. 30,  

2016).  



                                                                                         -3-                                                                                 7220
  


----------------------- Page 4-----------------------

                          The   obesity   treatment   plan   included   a   prescription   for   phentermine,  a  



                                                                                                               6  

central nervous system stimulant that suppresses appetite.                                                                                                            

                                                                                                                  Dr. Odom also prescribed a  



                                                                                                        7                                                  8  

                                                                                                                                                                 

natural  thyroid  hormone  drug  -  Armour  Thyroid                                                         -  for  hypothyroidism.                               He  



                                                                                                                                                                    

instructed S.Q. to start the thyroid drug at a dose of 120 milligrams daily, increasing to  



                                                                                                                                                             

 180 milligrams after two weeks and 240 milligrams after four weeks; after that she could  



                                                                                                   

adjust the dosage herself based on her symptoms.  



                                                                                                                                                                  

                          At S.Q.'s September 14, 2007 visit - her last to Dr. Odom's clinic - she  



                                                                                                                                                     

was found to have lost 33 pounds, dropping below the weight considered clinically  



                                                                                                                                                                     

obese.           She  reported,  however,  that  she  had  experienced  jitteriness  while  taking  a  



                                                                                                                                                   

240 milligramdose of Armour Thyroid, so Dr. Odomreduced the dose to 180 milligrams  



                                                                                                                                                                 

a day.  S.Q. appears to have stopped taking both medications soon afterward; she last  



                                                                                                                                                                 

filled her phentermine and Armour Thyroid prescriptions on September 10, when she  



                                                                                                                                       

received a thirty day supply of each, and some pills were never used.  



                                                                                                                                                                 

                          A month later S.Q. visited her cardiologist, who reported that she "has had  



                                                                                                                                                                          

a remarkable year and with careful adjustment of her diet, successfully lost 30 pounds."  



                                                                                                                                                                    

In early 2008, according to her husband, she "looked better and happier than she had in  



             6            Phentermine    was    once    commonly   prescribed    in    combination    with  



fenfluramine as an appetite suppressant called fen-phen; fen-phen was withdrawn from                                                                           

the market following reports that connected its use with certain types of heart disease.   

See In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab. Litig.                                                                                    ,  

582 F.3d 524, 529 (3d Cir. 2009).                                   Phentermine remains an FDA-approved drug.                                                  



             7            Armour  Thyroid  contains  two  thyroid  hormones,  levothyroxine  and  

                                                                                                                                                               

liothyronine, as well as several inactive ingredients.  

                                                                              



             8            Hypothyroidism  is  the  "[d]iminished  production  of  thyroid  hormone,  

                                                                                                                                                    

leading to clinicalmanifestations ofthyroid insufficiency." Hypothyroidism, STEDMAN'S  

                                                                                                                                                  

MEDICAL  DICTIONARY  (28th ed. 2006).                           



                                                                                 -4-                                                                          7220
  


----------------------- Page 5-----------------------

a long time."                      But on March 6, 2008, about six months after she had stopped seeing                                                                                          



Dr. Odom, she suffered cardiac failure and died.                                                                      



                B.              The Licensing Division's Investigation                           



                                In 2009 S.Q.'s husband filed a complaint with the State of Alaska Division                                                                                 



of   Corporations,   Business,   and   Professional   Licensing,   suggesting   a   link   between  



Dr. Odom's treatment of S.Q. and her death. The Division launched an investigation and                                                                                                                  



sent    S.Q.'s    medical    records    to    Dr.    Patrick    Nolan    for    review.      Dr.    Nolan,    an  

endocrinologist,9                                                                                                                                                         

                                          concluded that it was inappropriate for Dr. Odom to have prescribed  



                                                                                                                                                                                                  

phentermine given S.Q.'s cardiomyopathy; that Dr. Odom had prescribed "too much  



                                                                                                                                                                                          

thyroid" hormone; and that Dr. Odom had inappropriately prescribed thyroid hormone  



                                                                                                                                                                                                      

"for  weight  loss."                              Dr.  Nolan  also  opined  that  the  "excess  thyroid  [hormone]  and  



                                                                                                                   

phentermine could have contributed to [S.Q.'s] death."  



                                                                                                                                                                                                   

                                Dr. Odom challenged these conclusions, asserting that Dr. Nolan, as an  



                                                                                                                                                                                         

endocrinologist,  had  a  starkly  different  view  of  weight  loss  and  natural  hormone  



                                                                                                                                                                                            

replacement therapy than doctors who, like Dr. Odom, practice anti-aging and bariatric  



                                                                                                                                                                                

medicine.                     Dr.  Nolan  responded  by  declaring  Dr.  Odom's  practice  "dangerous"  



                                                                                                                                                                                                          

and "clearly . . . a threat to the public's well being," though his explanation was terse; he  



                                                                                                                                                                                                           

said in his supplemental report, "I simply refuse to argue with [Dr. Odom's approach to  



                                                                                                                                                                                                        

treatment] as clearly the evidence is in favor of modern endocrinology and against Dr.  



                     

Odom."  



                                                                                                                                                                                                       

                                In April 2012 the Division filed an accusation alleging that Dr. Odom had  



                                                                                                                                                                                                

provided substandard care by failing "to conduct an adequate examination of S.Q.,"  



                9               Endocrinology is the "science and medical specialty concerned with the                                                                                                  



internal   or   hormonal   secretions   and   their   physiologic   and   pathologic   relations."   

Endocrinology, S                          TEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                           



                                                                                                     -5-                                                                                            7220
  


----------------------- Page 6-----------------------

prescribing "phentermine to a patient with an established diagnosis of cardiomyopathy,"                                                                                                                 



and prescribing "excess thyroid hormone" in combination with phentermine "for weight                                                                                                                                                     



loss."   The Division did                                             not  contend that Dr. Odom's treatment caused S.Q.'s death; in                                                                                                                  



this appeal the Division, through its attorney at oral argument, agreed "absolutely" that                                                                                                                                                        



                                                                                             10  

there was no causal connection.                                                                    



                                                                                                      

                    C.                 The Administrative Proceedings  



                                                                                                                                                                                                                                                  

                                       An administrative law judge (ALJ) held an evidentiary hearing on the  



                                                                                                                                                                                                                                  

Division's accusation over four days in October and November 2012.  The Division  



                                                                                                                                                                                                                                                 

presented the testimony of S.Q.'s husband, her mother, the Division investigator, and  



                                                                                                                                                                                                                                                

Dr. Nolan, who testified as an expert.  Dr. Odom testified on his own behalf and also  



                                                                                                                                                                                                                                              

presented the expert testimony of Dr. David Bryman, a bariatric physician, and Dr. Neal  



                                                                                                                                                                                               

Rouzier, an emergency medicine, family practice, and anti-aging physician.  



                                                                                                                                                                                                                                                   

                                       The ALJ issued a proposed decision in April 2014.  He concluded that the  



                                                                                                                                                                                                                           

Division had failed to prove "that Dr. Odom's examination was below the standard of  



                                                                                                                                                                                                                                   

care"; had failed to prove "that to prescribe phentermine to S.Q. was below the standard  



                                                                                                                                                                                                                                      

of care"; and had failed to prove "that Dr. Odom prescribed thyroid hormone as a weight  



                                                                                                                                                                                                                                                  

loss treatment, or that the dosages he prescribed were excessive and fell below the  



                                                                                                                                                                                                                                               

standard  of care."                                         The ALJ  therefore concluded  that no disciplinary  sanction  was  



                                 

warranted.  



                    10                 According to the administrative law judge, "[t]estimony at the hearing                                                                                                                        



established that the medication prescribed by Dr. Odom would have long since been                                                                                                                                                            

eliminated from [S.Q.'s] system, and she had been treated by her cardiologist on several                                                                                                                                               

occasions since her last visit to Dr. Odom some six months before her death." The Board                                                                                                                                                   

did not modify this finding, and the Division does not challenge it.                                                                                                                        



                                                                                                                          -6-                                                                                                                7220
  


----------------------- Page 7-----------------------

              D.            The Parties' Proposals For Action And The Medical Board's Decision                                                                   

                                                                                                  11  the Division submitted a proposal for  

                            As permitted by AS 44.64.060(e),                                                                                                                 



action in May 2014 that disputed the ALJ's findings and recommended that the Medical  

                                                                                                                                                                   



Board impose disciplinary sanctions. The Division argued that Dr. Odom's practice fell  

                                                                                                                                                                             



below  the  standard  of  care  when  he  prescribed  phentermine  to  a  patient  with  

                                                                                                                                                                         



cardiomyopathy  and  when  he prescribed "four  times the recommended  dosage" of  

                                                                                                                                                                              



thyroid hormone to S.Q. for "supposed hypothyroidism, when her thyroid levels were  

                                                                                                                       



in fact normal." The Division asserted that its proposed conclusions, though contrary to  

                                                                                                                                                                                



those of the ALJ, could be reached "based on the evidence contained in the [ALJ's]  

                                                                                                                                                                   



proposed  decision  (including  the  product  literature),  and  the  Board's  own  medical  

                                                                                                                                                                  



expertise."  

                         



                            The Medical Board was scheduled to meet to decide Dr. Odom's case in  

                                                                                                                                                                               



June 2014, and it received the ALJ's proposed decision and the Division's proposal for  

                                                                                                                                                                              



action beforehand.  A problem with the mail prevented Dr. Odom from filing his own  

                                                                                                                                                                          



proposal for action, and though he tardily filed an opposition to the Division's proposal,  

                                                                                                                                                                 



the Medical Board did not review it.  

                                                                             



                            At its  June meeting  the Medical Board  discussed  Dr. Odom's case in  

                                                                                                                                                                               



executive session; the members then voted unanimously, on the record, to "reject the  

                                                                                                                                                                             



              11            "[W]ithin 30 days after the proposed decision is served, a party may file                                                                        



with the agency a proposal for action . . . [recommending that the agency] do one or                                                                                           

more of the following: (1) adopt the proposed decision as the final agency decision;                                                                            

(2) return the case to the administrative law judge to take additional evidence or make  

                                                                                                                                                                 

additional findings . . . ; (3) exercise its discretion by revising the proposed . . . sanction  

                                                                                                                                                                      

. . .  and adopt the proposed decision as revised; (4) in writing, reject, modify, or amend  

                                                                                                                                                                               

a factual finding in the proposed decision . . . ; [or] (5) in writing, reject, modify, or  

                                                                                                                                                               

amend an interpretation or application in the proposed decision of a statute or regulation  

                                                                                                                                       

directly governing the agency's actions . . . ."  AS 44.64.060(e).  



                                                                                       -7-                                                                               7220
  


----------------------- Page 8-----------------------

proposed decision by the ALJ and, instead, adopt the Division's Proposal for Action" as                                                                                                                                                                                                                                                                                                                                   



its final agency decision.                                                                                                 As a sanction, the Medical Board ordered "the revocation of                                                                                                                                                                                                                                   



Dr. David Odom's Alaska medical license."                                                                                                                                   



                                 E.                              Dr. Odom's Appeal To The Superior Court And Remand                                                                                                                                                                                                           



                                                                 Dr. Odomappealed                                                                              theMedical                                                Board's decision to thesuperior                                                                                                                         court. The    



court   held   that  substantial   evidence   supported   the   Board's   factual   and   disciplinary  



 findings, but it found a violation of Dr. Odom's due process rights in the Board's failure                                                                                                                                                                                                                                                                                                         



to consider his late-filed opposition to the Division's proposal for action; the superior                                                                                                                                                                                                                                                                                                  



court therefore vacated the Board's decision and remanded the matter to the Board for                                                                                                                                                                                                                                                                                                                                 



reconsideration.    



                                                                 At   a   special   meeting,   the   Medical   Board   "decided   not   to   re-open   the  



 evidence in this case as is its prerogative," and it reaffirmed its decision to revoke                                                                                                                                                                                                                                                                                                         



Dr. Odom's license. In November 2015 the superior court issued an order affirming the                                                                                                                                                                                                                                                                                                                                



Board's decision.                                                                       



                                                                 Dr. Odom appealed to this court.                                                                                                                                   



III.                             STANDARDS OF REVIEW                                                                             



                                                                 When a superior court acts as an intermediate court of appeals reviewing                                                                                                                                                                                                                                          



an   administrative   or   agency   decision,   we   independently   review   the   merits   of   the  



                                                                                                                      12                                                                                                                                                                                                                                                                             13  

administrative decision,                                                                                                                                                                                                                                                                                                                                                                                      We  

                                                                                                                                 giving no deference to the superior court's decision. 



                                                                                                                                                                                                                                                                                                                                                                                                                     

review  the  agency's  factual  findings  to  determine  whether  they  are  supported  by  



                                 12                             Jurgens v. City of North Pole                                                                                                                   , 153 P.3d 321, 325 (Alaska 2007).                                                                                                        



                                 13                              State, Dep't of Revenue v. Merriouns                                                                                                                                                     , 894 P.2d 623, 625 (Alaska 1995)                                                                                                           



 (citing  Handley v. State, Dep't of Revenue                                                                                                                                                                   , 838 P.2d 1231, 1233 (Alaska 1992)).                                                                                                                 



                                                                                                                                                                                                            -8-                                                                                                                                                                                              7220
  


----------------------- Page 9-----------------------

                                      14  

substantial evidence.                     Substantial evidence is "such relevant evidence as a reasonable                                



                                                                                                   15  

mind might accept as adequate to support a conclusion."                                                                                               

                                                                                                       "The substantial evidence test  



                                                                                                                                            

is highly deferential, but we still review the entire record to ensure that the evidence  



                                                                                                                                                      

detracting  from  the  agency's  decision  is  not  dramatically  disproportionate  to  the  



                                                                                                                                           

evidence  supporting  it  such  that  we  cannot  'conscientiously'  find  the  evidence  



                                                                                     16  

                                                                                                                                            

supporting  the  decision  to  be  'substantial.'  "                                        The  substantial  evidence  standard  



                                                                                                                                                         

"reflects the prudence of deferring to a state professional board's special competence in  



                                                                                              17  

                                                                                                                                                      

recognizing  violations  of  professional  standards."                                               "But  we  will  not  uphold  the  



                                                                                                                                                  

imposition of reputationally and economically damaging professional sanctions based  



            14          Jurgens, 153 P.3d at 325 (citing                          Lindhag v. State, Dep't of Nat. Res                            ., 123   



P.3d 948, 952 (Alaska 2005);                         Fields v. Kodiak City Council                        , 628 P.2d 927, 932 (Alaska           

 1981)).  



            15          Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983) (citing Keiner  

                                                                                                                                                

v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)).  

                                                                                                        



            16          Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634  

                                                                                                                                                     

n.40 (Alaska 2011) (emphasis in original). "[A] court may [not] displace the Board's  

                                                                                                                                              

choice between two fairly conflicting views, even though the court would justifiably  

                                                                                                                                          

have made a different choice had the matter been before it de novo.   But under the  

                                                                                                                                                      

substantial evidence test, a reviewing court is not barred from setting aside a Board  

                                                                                                                                                 

decision when it cannot conscientiously find that the evidence supporting that decision  

                                                                                                                                             

is substantial, when viewed in the light that the record in its entirety furnishes, including  

                                                                                                                                           

the body of evidence opposed to the Board's view."  Id.  (quoting  Universal Camera  

                                                                                                                                             

Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488 (1951)).  

                                                                                                                   



            17          State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Corps., Bus. &  

                                                                                                                                                         

Prof'l Licensing v. Wold, 278 P.3d 266, 273 (Alaska 2012).  

                                                                                                



                                                                           -9-                                                                     7220
  


----------------------- Page 10-----------------------

on   evidence   that   would   not   permit   a   reasonable   mind   to   reach   the   conclusion   in  

question."18  



                                                                                                                                   

                      "We review questions of law, including the appropriate standard of proof,  



                                                        19  

                                                                                                                             

using our independent judgment."                            We review the agency's selection of a particular  



                                                                        20  

                                                        

disciplinary sanction for abuse of discretion. 



IV.        DISCUSSION  



                                                                                                                                

                      AlaskaStatute08.64.326(a)(8)(A)authorizestheMedicalBoardtosanction  



                                                                                                                         

a doctor if the Board finds after a hearing that the doctor "has demonstrated professional  



                         21  

                                                                                                                               

incompetence."               "Professionalincompetence"isdefinedbyregulationtomean "lacking  



                                                                                                                                   

sufficient knowledge, skills, or professional judgment in that field of practice in which  



                                                                                                                                         

the physician . . . concerned engages, to a degree likely to endanger the health of his or  



           18        Id.  (citing   Wendte v. State, Bd. of Real Estate Appraisers                                 , 70 P.3d 1089,       



 1091 (Alaska 2003)).     



           19        Jurgens, 153 P.3d at 325-26 (citing Romulus v. Anchorage Sch. Dist.,  

                                                                                                                                   

910 P.2d 610, 615 n.3, 618-19 (Alaska 1996)).  

                                                                 



           20         See AS 08.64.331(a) (identifying sanctions that the Medical Board "may"  

                                                                                                                                  

impose under various circumstances); AS 44.62.570(b) (identifying judicial inquiry on  

                                                                                                                                         

appeal as limited to the questions of jurisdiction, "whether there was a fair hearing," and  

                                                                                                                                              

"whether there was a prejudicial abuse of discretion"); see also, e.g., Colo. Real Estate  

                                                                                                                                   

Comm'n v. Hanegan, 947 P.2d 933, 936 (Colo. 1997) (en banc) ("The imposition of  

                                                                                                                                         

sanctions is a discretionary function which, if within the statutory authority of an agency,  

                                                                                                                                

must not be overturned unless that discretion is abused."); Wasfi v. Dep't of Pub. Health,  

                                                                                                                                 

761 A.2d 257, 267 (Conn. App. 2000) ("If the penalty meted out is within the limits  

                                                                                                                                   

prescribed by law, the matter lies within the exercise of the [agency's] discretion and  

                                                                                                                                       

cannot be successfully challenged unless the discretion has been abused." (alteration in  

                                                                                                                                         

original) (quoting  Gibson v. Conn. Med. Examining Bd., 104 A.2d 890, 895 (Conn.  

                                                                                                                                 

1954))).  



           21         See also AS 08.64.101(3).  

                                           



                                                                   -10-                                                             7220
  


----------------------- Page 11-----------------------

                      22  

her patients."              Sanctions for professional incompetence may range from a letter of                                             



                                                                                                          23  

reprimand or required               educationto revocation ofamedical license.                                        

                                                                                                              The Administrative  



                                                                                                                                          

Procedure Act provides that "if an accusation has been filed under AS 44.62.360" (to  



                                                                                                                       

determine whether a license "should be revoked, suspended, limited, or conditioned"),  



                                                                                                                              

the accusing authority "has the burden of proof by a preponderance of the evidence"  



                                                                                                                              

unless "applicable law" requires otherwise.  We assume for purposes of this discussion  



                                                                                            24  

                                                                                

that the preponderance of the evidence standard applies. 



                                                                                                                                   

                      Dr. Odom challenges the Medical Board's decision to revoke his license  



                                                                                                                                        

as lacking substantial evidence in support of it.  His argument targets the Board's two  



                                                                                                                                           

underlying findings: (1) that prescribing phentermine to S.Q. was below the standard of  



                                                                            

care because of her cardiomyopathy, and (2) that prescribing thyroid hormone to S.Q.  



                                                                                                                                            

was below the standard of care because the dosage prescribed was excessive and it  



                                                                                                                                  

should not have been given in combination with phentermine. We agree that the Board's  



                                                                 

decision lacks sufficient support in the evidence.  



           22         12  Alaska  Administrative  Code  (AAC)  40.970  (2017).  



           23         AS  08.64.331(a).  



           24         Our  opinion,  when  first  published,  applied  a  clear  and  convincing  evidence  



standard,   citing   the   due   process   analysis   of   Nguyen   v.   State,   Dep't   of Health Med.  

Quality  Assurance  Comm'n,  29  P.3d  689,  696  (Wash.  2001).   On  the  Division's  petition  

for  rehearing  we  conclude  that  this  case  does  not  require  us  to  decide  whether  a  standard  

higher  than  preponderance  of  the  evidence  is  constitutionally  mandated  in  professional  

licensing  proceedings.   



                                                                    -11-                                                              7220
  


----------------------- Page 12-----------------------

                          A.                       The Medical Board's Decision Does Not Support License Revocation.                                                                                                                                                                    



                                                   We begin by explaining why the Medical Board's decisional document                                                                                                                                                                             



 does not support its conclusion regardless of how we view the evidence of Dr. Odom's                                                                                                                                                                                                                    



treatment of S.Q.                                                        We note parenthetically that the Medical Board's adoption of the                                                                                                                                                                                   



Division's   proposal   as   its   final   decision   was   clearly   not   what   the   Division  had  



 anticipated; the Division had proposed that the Board amend the ALJ's decision in some                                                                                                                                                                                                                             



particulars, and the only sanctions it discussed were a license suspension or alternatively                                                                                                                                                                                              



 "a fine, reprimand, probation, education, and permanent restriction on respondent's                                                                                                                                                                                                  



practice, including a prohibition against prescribing phentermine and thyroid hormone                                                                                                                                                                                                                 



to patients."                                    



                                                   The Board's procedure was also irregular. The law requires that the Board                                                                                                                                                                                     



 support the revocation of a medical license with a written decision and "a brief and                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                 25  

 concise statement of the grounds and reasons for the action."                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                          The decisional document  



                                                                                                                                                                                                                                                                                                         

 of any administrative body, "done carefully and in good faith, serves several salutary  



                                                                                                                                                                                                                                                                                                                 

purposes," such as "facilitat[ing] judicial review by demonstrating those factors which  



                                                                                                                                                                                                                                                                              

were  considered"  and  "tend[ing]  to  ensure  careful  and  reasoned  administrative  



                                                    26  

 deliberation."                                                                                                                                                                                                                                                                                                     

                                                               An ALJ's proposed decision is usually in a form that will serve these  



                                                                                                                                                  27  

                                                                                                                                                                                                                                                                                                                                  

purposes, if it is adopted by the Board.                                                                                                                    And AS 44.64.060(e) sets out other options if  



                          25                       AS 08.64.340;                                           see also Peninsula Mktg. Ass'n v. State                                                                                                             , 817 P.2d 917, 922                                        



 (Alaska   1991)   (observing   that   "agency   decisions,   in   exercise   of   their   adjudicative  

powers, must be accompanied by written findings and a decisional document" (quoting                                                                                                                                                                                                                     

Messerli v. Dep't of Nat. Res., State of Alaska                                                                                                                                , 768 P.2d 1112, 1118 (Alaska 1989))).                                                                               



                          26                       Se. Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 549 (Alaska  

                                                                                                                                                                                                                                                                                                          

 1983), superseded by statute on other grounds, Ch. 86,  1, SLA 2009.  

                                                                                                                                                                                                                                                                                  



                          27                       See, e.g., In re Bartling, OAH No. 12-0221-MED at 13 (July 19, 2013)  

                                                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                                             -12-                                                                                                                                                     7220
  


----------------------- Page 13-----------------------

the Board declines to adopt the ALJ's proposed decision, including returning the case                                                                                       



to the ALJ for further proceedings, changing the ALJ's recommended disposition, and                                                                                           



rejecting,modifying, or amending                                       theALJ's             factual findings ("by                     specifying theaffected         



finding and identifying the testimony and other evidence relied on by the agency for the                                                                                       



                                                                                                                     28  

rejection, modification, or amendment of the finding").                                                                                                                  

                                                                                                                           The Medical Board's "non- 



                                                                                                                                                                         

adoption options"do not expressly contemplateacceptingoneparty'sproposal for action  



                                                                                                                                                                               

as the Board's decision, as the Board did here; that may work sometimes, but on the  



                                                                                                                                                                  

other hand the proposal for action may well be, as it was here, a piece of party advocacy  



                                                                                                                                                                     

rather than an ostensibly impartial decisional document that clearly sets out the Board's  



                                                                                               

rationale and helps facilitate judicial review.  



                                                                                                                                                                              

                            The document that became the Board's final decision in this matter thus  



                                                                                                                                                                                  

contains no findings of its own but asserts that its conclusion can be reached "based on  



                                                                                                                                                                  

theevidencecontained in the[ALJ's]proposeddecision(includingtheproduct literature),  



                                                                                                                                                 

and  the  Board's  own  medical  expertise."                                                  But  the  document  also  suggests  specific  



                                                                                                                                                                                

amendments to the ALJ's decision and invites the Board to enlist the assistance of the  



                                                                                                                                                                              

attorney general's office in making revisions. While a member of the public who has both  



                                                                                                                                                                           

the Division's proposal for action and the ALJ's recommended decision in hand could  



                                                                                                                                                                   

thus - perhaps - stitch together a single decisional document with a coherent narrative,  



              27(...continued)  



                                                                                                                                                                          

(adopting proposed decision); In re Ilardi, OAH No. 10-0114-MED at 10 (Oct. 28, 2010)  

                  

(same).  



              28            The Medical Board could also prepare its own decision, as in In re Emery,  

                                                                                                                                                                       

OAH No. 07-0169-MED (Jan. 30, 2009).  See also State, Div. of Corps., Bus. & Prof'l  

                                                                                                                                                                         

Licensing, Alaska Bd. of Nursing v. Platt, 169 P.3d 595, 598 (Alaska 2007) (reviewing  

                                                                                                                                                               

Board of Nursing decision adopting hearing officer's findings of fact and conclusions  

                                                                                                                                                            

of law but adding its own different analysis).  

                                                                           



                                                                                       -13-                                                                               7220
  


----------------------- Page 14-----------------------

it is not at all clear that the document's factual findings would lead to its conclusion. And                                                                                                                                                                                                                      



the Board's decision on remand, after considering Dr. Odom's late-filed proposal for                                                                                                                                                                                                                                    



action, adds no explanation other than the conclusory statement that its earlier decision,                                                                                                                                                                                                        



as embodied in the Division's proposal for action, was supported by substantial evidence.                                                                                                                                                                                                                                               



                                                  Most importantly, the document that became the Board's final decision                                                                                                                                                                            



expressly states that "[i]mposing                                                                                       a suspension                                    on Dr. Odom's license                                                              would be                           consistent  



with prior Board decisions involving inappropriate prescribing by physicians" (emphasis                                                                                                                                                                                                        



added) and supports this statement with a discussion of relevant legal authorities.                                                                                                                                                                                                                               The  



Board,   however,   revoked   Dr.   Odom's   license   instead,   based   not   on   any   written  



explanation   but   presumably   on   its   discussion   in   executive   session.     By   statute,   the  



Medical Board must be "consistent in the application of disciplinary sanctions," and "[a]                                                                                                                                                                                                                             



significant departure from earlier decisions of the board involving similar situations must                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                            29  

be   explained  in  findings   of   fact   or   orders   made   by   the   board."                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                           In  professional  



                                                                                                                                                                                                                                                                                      

incompetence cases, the Medical Board has generally "directed its efforts to imposing  



                                                                                                                                                                                                                                                                                                

appropriate limits  on  [the  doctor's] practice or  to  seeking  to upgrade [the doctor's]  



                                                     30  

performance."                                                                                                                                                                                                                                                                                                           

                                                               This approach is reflected in the Division's proposal in this case that the  



                                                                                                                                                                                                                                                                                                          

Board,  to  be  consistent  with  its  precedent,  impose  a  suspension  or  consider  lighter  



                                                                                              

sanctions as alternatives.  



                                                                                                                                                                                                                                                                                                                            

                                                  License revocations, in contrast, are more likely to follow revocations in  



                                                                                                                                                                                                                                                                                                                     

other  states  or  convictions  for  crimes  such  as  fraud,  felony  drug  offenses,  or  sex  



                         29                       AS 08.64.331(f).   



                         30                      In re Kohler                                 , OAH No. 10-0635-MED at 51-52 (June 7, 2011) (identifying                                                                                                                             



the specific area in which a doctor was incompetent and restricting him from practicing  

                                                                                                                                                                                                                                                                                            

in the area of his incompetence).  

                                                                



                                                                                                                                                           -14-                                                                                                                                                7220
  


----------------------- Page 15-----------------------

             31  

offenses.           We   have   also   affirmed   a   license   revocation   based   on   "a   pattern   of  



                    32  

inadequacy,"                                                                                                                   

                       but this case involves only Dr. Odom's treatment of S.Q.; the Division did  



                                                                                                                               

not allege or pursue a claim that Dr. Odom acted incompetently in any cases besides this  



                                                                                                                               

one.  And given the Division's further concession that Dr. Odom's treatment of S.Q. had  



                                                                                                                     

no causal connection to her death, there is no reason apparent in the Board's decisional  



                                                                                                                               

document why S.Q.'s case alone would warrant a sanction that is inconsistent with the  



              

Board's precedent.  



                                                                                                                       

                    Weconcludethat theBoard's final decision fails to comply with its statutory  



                                                                                                                              

duty  to  "be  consistent  in  the  application  of  disciplinary  sanctions"  or  explain  the  



                     33  

inconsistency,                                                                                

                         and it therefore does not support the sanction imposed.  



                                                                                                                               

          B.	       The Medical Board's Conclusion That Dr. Odom's Prescription Of  

                                                                                                                                

                    Phentermine To S.Q. Was Below The Standard Of Care In His Field Of  

                                                                                        

                    Practice Is Not Supported By Substantial Evidence.  



                                                                                                                             

                    The Medical Board's decisional document is legally insufficient not only  



                                                                                                                            

with regard to its choice of sanction, but also in its conclusion that Dr. Odom acted  



                                                                                                                        

incompetently.  One of the reasons the Board gave for adopting the Division's position  



                                                                                                                               

was  that  it  was  "unprofessional,  incompetent,  and  below  the  standard  of  care  for  



                                                                                                                             

Dr. Odom to prescribe phentermine to a patient with known cardiomyopathy."   This  



          31        ALASKA   MEDICAL   BOARD,   SUMMARY   OF   BOARD   ACTIONS   -  1997   TO  



PRESENT          (Feb.       9,    2017),       https://www.commerce.alaska.gov/web/portals/5/pub/  

                                               

MED_1997_to_2017_Board_Action_Summary.pdf.  



          32        Storrs v. State Med. Bd., 664 P.2d 547, 555-56 (Alaska 1983) (finding a  

                                                                                                                                 

"pattern  of  inadequacy"  based  on  five  cases  over  five  years  in  which  a  doctor  

                                                                                                                        

demonstrated an inability to foresee common complications, obtain consultations for  

                                                                                                                              

developing   complications,   and   apply   diagnostic   and   corrective   measures   once  

                                                                                                                          

complications arose).  

                       



          33        AS 08.64.331(f).  

                           



                                                               -15-	                                                      7220
  


----------------------- Page 16-----------------------

conclusion relied primarily on the testimony of Dr. Nolan, bolstered by product literature                                                                                                        



and a reference book.                                   But we conclude that this evidence is insufficient to support the                                                                                       



Board's finding of incompetence.                                                      



                                 Dr. Nolan, the Division's only medical witness, testified that he was board                                                                                              



                                                                                                                        34  

certified in internal medicine and endocrinology.                                                                                                                                                     

                                                                                                                               He testified that his practice usually  



                                                                                                                                                                                                    

involves patients who have diabetes or some kind of thyroid disease; many of his diabetic  



                                                                                                                                                                                                                

patients "have weight problems," but he does not use any drug therapy specifically for  



                                                                                                                                                                                                    

weight loss. Indeed, when asked by the Division at the outset of its investigation whether  



                                                                                                                                                                                                         

he "perform[ed] the type of practice which is in dispute in this matter," he answered "No,"  



                                                                                                                                                                                                              

explaining that he did not prescribe the medicines at issue. He testified at the hearing that  



                                                                                                                                                                                             

he has not prescribed phentermine "in many years" because he found it to be ineffective  



                                                                                                                                           

"in the long run" and because "it's very controversial."  



                                                                                                                                                                                        

                                 Dr. Nolan nonetheless did not review any recent studies of phentermine  



                                                                                                                                                                                                  

before forming his opinions in the case and, despite his role as an expert witness, admitted  



                                                                                                                                                                                                                

that he "ha[d]n't researched it out that carefully."  He testified that he had reviewed the  



                                                                                                                                                                                             

"package insert"; the online entry for phentermine in the Physician's Desk Reference,  



                                                                                                                                                              

which contains the same manufacturer-provided information as the package insert; and  



                                                                                                                                                                                                   

Lexicomp's  Drug  Information  Handbook,  which  he  described  as  a  more  reliable  



                                                                                                                                                                                                               

 sourcebook  prepared  by  the  American  Pharmacists'  Association.                                                                                                        He  described  the  



                                                                                                                                                                                                  

package insert  as contraindicating the use of phentermine for patients with "cardiac  



                 34              Dr. Nolan described internal medicine as including "a whole list of . . .                                                                                                      



different subspecialities: pulmonary                                                     disease, cardiology,gastrointestinal,rheumatology,                                       

dermatology,endocrinology,"and hedefined                                                                       endocrinology as the"studyofendocrines,                                    

 . . . which are the ductless glands in your body:                                                                     the pituitary, the thyroid, the adrenal,   

outlet cells in the pancreas, parathyroid, things like that."                                                                                         See also Endocrinology                                       ,  

 STEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                                               



                                                                                                       -16-                                                                                              7220
  


----------------------- Page 17-----------------------

disease," and he testified that contraindications in package inserts are clear statements to                                                                                                                                                                                                                                                             



physicians not to prescribe a drug under the given circumstances.                                                                                                                                                                                                          He also testified that                                                 



the   Drug   Information   Handbook   contains   a   "severe   warning"   against   the   use   of  



"stimulants . . . in patients with . . . cardiomyopathy."                                                                                                                                                             Dr. Nolan admitted, however, that                                                                                           



"the package insert [for a drug] may or may not be totally reliable" and that a physician                                                                                                                                                                                                                             



 should not rely solely upon the                                                                                            Drug Information Handbook                                                                                              either.   But he also testified                                               



that he had asked seven cardiologists whether they would "consider using phentermine                                                                                                                                                                                                                          



in a patient with known cardiomyopathy," and they all answered, "Absolutely not."                                                                                                                                                                                                                                                                  He  



concluded that Dr. Odom should not have prescribed phentermine to treat S.Q.'s obesity                                                                                                                                                                                                                                              



because of her history of cardiomyopathy, and that doing so was below the standard of   



care.   



                                                      The manufacturer's literature for phentermine clearly states that the drug is                                                                                                                                                                                                                        



contraindicated for patients with cardiovascular disease, though whether that includes                                                                                                                                                                                                                                        



 S.Q.'s asymptomatic peripartum cardiomyopathy is a debatable issue, one that the ALJ                                                                                                                                                                                                                                                           



                                                                                                             35  

noted   but   did   not   decide.                                                                                                                                                                                                                                                                                                                 

                                                                                                                            The  Division  argued  for  a  broad  interpretation  of  the  



                                                                                                                                                                                                                                                                                                                    

contraindications and warnings as applying to all kinds of heart diseases and conditions,  



                                                                                                                                                                                                                                                                                                                                             

and the Board ostensibly adopted that interpretation. But we need not consider this issue  



                                                                                                                                                                                                                                                                                               

ourselves; regardless of whether phentermine's manufacturer intended cardiomyopathy  



                                                                                                                                                                                                                                                                                                                                                           

to be among the listed contraindications, the evidence disproportionately supports a  



                                                                                                                                                                                                                                                                                                                                                 

conclusion that the contraindications do not establish a relevant standard of care, and  



                           35                         Dr. Nolan                                testifiedthat                                     cardiomyopathy isaformofcardiovascular disease.                                                                                                                                                                



Both of Dr. Odom's experts testified that S.Q.'s condition, peripartum cardiomyopathy,                                                                                                                                                                                                    

is   a   disease   of   the   heart   muscle   rather   than   the   vascular  system,   is   thus   not   a  

cardiovascular disease, and is not among phentermine's listed contraindications.                                                                                                                                                                                                                                                       



                                                                                                                                                                         -17-                                                                                                                                                             7220
  


----------------------- Page 18-----------------------

 furthermore that Dr. Odom's prescription of phentermine to S.Q. was within the standard                                                                                                                                                                                                                                                                  



 of care for physicians who practice in his field.                                                                                                                                     



                                                           Dr. Bryman, one of Dr. Odom's expert witnesses, is a physician licensed in                                                                                                                                                                                                                                                  



Alaska and several other states who practices primarily in bariatrics.  He has served on  



the American Board of Bariatric Medicine and is active in the American Society of                                                                                                                                                                                                                                                                                                   



Bariatric Physicians.                                                                         He testified that he is "very familiar" with phentermine; he has                                                                                                                                                                                                                 



prescribed it in his practice for over 20 years, has lectured on the drug, and has defended                                                                                                                                                                                                                                                            



 other physicians' use of the drug.                                                                                                                        As the ALJ summarized Dr. Bryman's testimony,                                                                                                                                       



 "phentermine is routinely prescribed for anorectic [appetite-suppressant] purposes by                                                                                                                                                                                                                                                                                            



bariatric physicians nationwide."                                                                                                                   



                                                           Dr. Bryman also addressed phentermine's contraindications.  He strongly  



 supported  Dr.   Odom's   view   that   contraindications   on   drug   labels   generally   are   not  



                                                                                                                                                                                                                                                                                          36  

binding on physicians and do not establish a standard of care,                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                     and that the product  



                                                                                                                                                                                                                                                                                                                                                                               

 literatureon phentermineinparticular was outdatedand misleading.  Whiledisputing that  



                                                                                                                                                                                                                                                                                                                                                                              

 cardiomyopathy is a cardiovascular disease, he discussed several studies indicating that  



                                                                                                                                                                                                                                                                                                                                                                     

phentermine did not cause the adverse cardiovascular effects the product literature warns  



                                                                                                                                                                                                                                                                                                                                                                               

 about. Both Dr. Bryman and Dr. Rouzier, Dr. Odom's other expert witness, testified that  



                                                                                                                                                                                                                                                                                                                                                                          

phentermine'scontraindications and warnings regardingits usewithcardiacpatients were  



                              36                           The ALJ cited several federal cases in support of this proposition.                                                                                                                                                                                                                                         See  



Planned Parenthood Sw. Ohio Region v. Dewine                                                                                                                                                                         , 696 F.3d 490, 496 n.4 (6th Cir. 2012)                                                                                                      

 ("The FDA regulates the marketing and distribution of drugs by manufacturers, not the                                                                                                                                                                                                                                                                                        

practices of physicians in treating patients.");                                                                                                                                                               Weaver v. Reagan                                                                    , 886 F.2d 194, 198                                                   

 (8th Cir. 1989) ("FDA approved indications were not intended to limit or interfere with                                                                                                                                                                                                                                                                                

the practice of medicine nor to preclude physicians from using their best judgment in the                                                                                                                                                                                                                                                                                     

 interest of the patient.");                                                                                      id.   ("Once a product has been                                                                                                                 approved   for   marketing,   a  

physician may prescribe it for uses or in treatment regimens or patient populations that                                                                                                                                                                                                                                                                                   

 are not included in approved labeling." (quoting 12 FDA D                                                                                                                                                                                                                      RUG   BULLETIN   1, at 4-5                                                                 

 (1982), http://www.circare.org/fda/fdadrugbulletin_041982.pdf)).                                                                                                                                                                                                                                   



                                                                                                                                                                                       -18-                                                                                                                                                                           7220
  


----------------------- Page 19-----------------------

based on 50-year-old research on amphetamines, a chemically related but fundamentally  

                                                                                                                



different compound with much different effects, and that thedrug's literaturehadnot been  

                                                                                                                               



updated despite new studies showing that "phentermine does not have any of those  

                                                                                                                             



properties that . . . amphetamines [have]." Dr. Bryman testified that the FDA had recently  

                                                                                                                          



approved a new drug containing phentermine based on studies that showed no adverse  

                                                                                                                          



cardiovascular effects at all.  He testified that about 30% of his own patients had some  

                                                                                                                              



form  of  heart  disease  and  were  referred  to  him  by  their  cardiologists,  and  that  he  

                                                                                                                                 



prescribed phentermine to patients with cardiomyopathy.  

                                                                                          



                    Dr. Bryman noted that S.Q.'s medical records showed no increase in her  

                                                                                                                                 



heart rate or blood pressure while she was on phentermine, and that in fact, because of her  

                                                                                                                                 



obesity and cardiomyopathy, she was "a perfect patient for" the drug.  He concluded  

                                                                                                                      



"with certainty that [Dr. Odom] practiced to the standard of care like a reasonable doctor  

                                                                                                                            



would treat a patient and not allow her to continue her obesity and worsen her condition.  

                                                                                                                                       



So he intervened appropriately, in my opinion, and she got better."  Dr. Rouzier, too,  

                                                                                                                                



testified adamantly that the best treatment for S.Q.'s obesity was weight loss and that  

                                                                                                                                



phentermine was a safe and effective way to promote it.  

                                                                                        



                    The ALJ who presided over the evidentiary hearing noted that the Division  

                                                                                                                         



"did not call S.Q.'s treating cardiologist, or any other cardiologist, as a witness, and it did  

                                                                                                                                 



not admit into evidence any studies of phentermine to support the allegations of the  

                                                                                                                                 



accusation." The ALJ contrasted the Division's expert witness, Dr. Nolan, who "has little  

                                                                                                                               



clinical experiencewith phentermine,"with Dr. Odom's expertwitness, Dr. Bryman, who  

                                                                                                                                



had "substantial clinical experience with phentermine, including the use of phentermine  

                                                                                                                   



for patients referred by cardiologists."  The ALJ concluded that "the Division has not  

                                                                                                                                 



shown by a preponderance of the evidence that it was below the standard of care to  

                                                                                                                                  



prescribe phentermine to S.Q."  We agree with this conclusion.  The evidence detracting  

                                                                                                                       



                                                               -19-                                                         7220
  


----------------------- Page 20-----------------------

from the Board's decision is dramatically disproportionate to the evidence in support of                                                                              



it,   meaning   that   we   cannot   conscientiously   say   that   the   supporting   evidence   is  

substantial.37  



                                                                                                                                                                     

                          Finally, the Division's proposal for action - the Board's final decision -  



                                                                                                                                                          

cited an earlier Medical Board decision in support of the proposition that a doctor's  



                                                                                                                                                    

prescription contrary to manufacturer-provided contraindications can show a breach of  



                                                                                                                                                      

the standard of care. In re Bartling dealt in part with a claim that a doctor had prescribed  



                                                                                                                                                                     

an opioid to a patient who was not opioid tolerant, "contrary to FDA warnings" listed on  



                                                 38  

                                                                                                                                                             

the product's packaging.                               The Board concluded that the patient actually was opioid  



                                                                                                                                       39  

                                                                                                                                                              

tolerant and therefore there was no violation of the standard of care.                                                                       But the Board  



                                                                                                                                                                

noted the testimony of two experts that "the warning was a guide, and that in some cases  



                                                                                                                                                         

it is medically appropriate to prescribe [the drug] to a patient who is not opioid tolerant"  



                                          40  

                                                                                                                                                                   

despite the warnings.                           And the Board in Bartling  did not have to address issues like  



                                                                                                                                                   

those in this case about whether more recent research and clinical experience undermined  



                                                                               

the credibility of the product literature.  Bartling does not support the Board's decision  



                       41  

                             

in this case. 



             37           See Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                                                      , 267 P.3d 624,       



634 n.40 (Alaska 2011).                          



             38           OAH  No.   12-0221-MED  at  9  (July   19,  2013).  



             39           Id.  at   10.  



             40           Id.  



             41           The   Board's   decision   also   cites   cases   from   other  jurisdictions in  which  



doctors   were   found   to   have   inappropriately   prescribed   phentermine   to   patients   with  

cardiac problems.   Zac  v.  Riffel,   115  P.3d 165,   170  (Kan. App. 2005)  (expert  testified  

that   phentermine   should   not   have   been   prescribed   to   a   patient   with   left ventricular  

                                                                                                                                                (continued...)  



                                                                                 -20-                                                                         7220
  


----------------------- Page 21-----------------------

                              C.	                         The Medical Board's Conclusion That Dr. Odom's Prescription Of                                                                                                                                                                                                                                                     

                                                          Thyroid Hormone Fell Below The Standard Of Care In His Field Of                                                                                                                                                                                                                                                     

                                                          Practice Was Not Supported By Substantial Evidence.                                                                                                                                                          



                                                          TheMedical                                             Board alsoadoptedasitsfinaldecisiontheDivision's                                                                                                                                                                                argument  



that Dr. Odom's conduct was "unprofessional, incompetent, and below the standard of                                                                                                                                                                                                                                                                                              



 care" when he prescribed thyroid hormone to S.Q.                                                                                                                                                                             The Board apparently accepted the                                                                                                             



ALJ's relevant factual findings:                                                                                                            that Dr. Odom prescribed Armour Thyroid in late June                                                                                                                                                                      



 2007 with a beginning dosage of 120 milligrams a day, increasing to 180 milligrams after                                                                                                                                                                                                                                                                              



two   weeks   and   240   milligrams   after   four   weeks,   and   that   he   decreased   it  to  180  



milligrams in September after S.Q. reported jitteriness on the 240-milligram dose. While                                                                                                                                                                                                                                                                       



the ALJ found no breach of the standard of care in this chronology, the Board reached                                                                                                                                                                                                                                                                   



two much different conclusions:                                                                                                                (1) that Dr. Odom prescribed an excessive dosage of                                                                                                                                                                              



thyroid hormone, and (2) that it was inappropriate to prescribe thyroid hormone along                                                                                                                                                                                                                                                                            



with phentermine given the risks associated with using the two drugs in combination. Dr.                                                                                                                                                                                                                                                                                    



 Odom argues that these findings are not supported by substantial evidence, and again we                                                                                                                                                                                                                                                                                      



 agree with him.                                



                                                          TheMedical Board                                                                    adopted theDivision's                                                                             argument that S.Q. "received too  



much thyroid too soon" because "the product literature state[s] that for hypothyroidism,                                                                                                                                                                                                                          



the usual starting dose [of Armour Thyroid] was 30mg, with increments of only 15mg                                                                                                                                                                                                                                                                               



 every   2   to   3   weeks,"   whereas   S.Q.   started   with   120   milligrams   and   reached   240  



                             41(...continued)  



                                                                                                                                                                                                                                                                                                                                                                    

 dysfunction); Fletcher v. Pa. Prop. & Cas. Ins. Guar. Ass'n, 27 A.3d 299, 302 (Pa.  

                                                                                                                                                                                                                                                                                                                                                                  

 Cmmw.  2011)  (malpractice  damages  awarded,  in  part,  because  phentermine  was  

                                                                                                                                                                                                                                                                                                                                                             

 inappropriately prescribed to a patient with coronary artery disease); Ancier v. State,  

                                                                                                                                                                                                                                                                                                                 

Dep't  of  Health,  166  P.3d  829,  834  (Wash.  App.  2007)  (doctor  inappropriately  

                                                                                                                                                                                                                                                                                                                                                     

prescribed180,000 medications, including phentermine,overtheinternet;experttestified  

                                                                                                                                                                                                                                                                                                                                                                

that phentermine is dangerous for patients with cardiovascular disease).  None of these  

                                                                                                                                                                                                                                                                                                                                                                           

 cases address S.Q.'s particular malady, asymptomatic peripartum cardiomyopathy.  



                                                                                                                                                                                     -21-	                                                                                                                                                                        7220
  


----------------------- Page 22-----------------------

                                                                                                                                  

milligrams five weeks later.   The Board's decision is supported by the testimony of  



                                                                                                                                 

Dr. Nolan, who did not prescribe Armour Thyroid in his own practice but opined that Dr.  



                                                                                                                             

Odom  prescribed  too  much  of  it,  basing  his  opinion  on  what  he  read  in  the Drug  



                                                                                                                                 

Information Handbook  and the manufacturer's literature.  Dr. Nolan testified that the  



                                                                                                                          

Drug Information Handbook says the "recommended adult dosage" of Armour Thyroid  



                                                              

is "[f]ifteen to 30 milligrams initially."  



                                                                                                                               

                    But the Drug Information Handbook and the manufacturer's literature both  



                                                                                                                             

use the word "recommended" only in conjunction with pediatric dosages, which range  



                                                                                                                                

from 15 milligrams to "over 90" milligrams. The manufacturer's literature does state that  



                                                                                                                             

the "usual starting dose" is 15 to 30 milligrams, to be scaled up by 15 milligrams every  



                                                                                                                          

few weeks.   And the manufacturer's literature and the Handbook  agree that "[m]ost  



                                                                                                                                 

patients require 60 to 120 mg/day."  But neither the manufacturer's literature nor the  



                                                                                                                            

Handbook  supports the Board's necessary extrapolation:  that S.Q. was among "most  



                                                                                                                                

patients" for whom the "usual starting dose" was the only medically appropriate one, and  



                                                                                                                                 

that prescribing dosages other than the usual ones was necessarily unsafe or below the  



                   

standard of care.  



                                                                                                                           

                    Aside from the dosages listed in the Drug Information Handbook and the  



                                                                                                                              

manufacturer's literature, the only evidence of a proper dosage at the hearing came from  



                                                                                                                        

Dr. Odom and his expert witness, Dr. Rouzier, who regularly teaches courses in hormone  



                                                                                                                           

replacement for "various medicalacademies"including theAmericanAcademyofFamily  



                                                                                                                           

Physicians.            Dr.   Odom  testified   that   the   "average"   adult   dosage   is   4   grains  



                                                                                                                     

(240 milligrams) per day.  Dr. Rouzier testified that the "standard" dosage is between  



                                                                                                                            

2 and 4 grains (120 to 240 milligrams) per day.  Dr. Rouzier also testified that S.Q.'s  



                                                                                                                                 

dosages - from 120 milligrams to 240 milligrams then back down to 180 milligrams per  



                                                                                                                        

day  - were "very appropriate" and "within the range of what's standard and available  



                                                                                                                              

. . . for us to prescribe." According to Dr. Rouzier, S.Q.'s dosage even at its highest "was  



                                                               -22-                                                         7220
  


----------------------- Page 23-----------------------

a standard, middle-of-the-range, middle-run dose.                                                                                                        Not too high, not too low."                                                           He also   



testified that the drug manufacturer makes 4 grain, 5 grain, and 6 grain tablets; the                                                                                                                                                                         



manufacturer's literature and the                                                                   Drug Information Handbook                                                                 confirm that 4 grain and                                       



5 grain tablets (240 and 300 milligrams) are available, which runs counter to the Medical                                                                                                                                                      



Board's conclusion that S.Q.'s lower dosages were necessarily "excessive."                                                                                                                                                             



                                        Dr. Rouzier's and Dr. Odom's estimates of "standard" dosages are indeed                                                                                                                                    



higher   than   what the                                           Drug   Information Handbook                                                                   lists as                 usual  maintenance doses   

                                                                                                                                                                                                                                                 42         The  

("[u]sually   60-120   mg/day"),   but   every   patient   cannot   be   the   usual   patient.                                                                                                                                                          



manufacturer's literature adds, "The dosage of thyroid hormones . . . must in every case  

                                                                                                                                                                                                                                                           



be individualized according to patient response and laboratory findings."  Dr. Rouzier  

                                                                                                                                                                                                                                               



testified accordingly that some patients achieve the best results from taking significantly  

                                                                                                                                                                                                                                  



higher doses of thyroid hormone than those prescribed to S.Q. According to Dr. Rouzier,  

                                                                                                                                                                                                                                               



 S.Q.'s dosages were within the safe range.  

                                                                                                                                   



                                        The Division presented some evidence about the risks of excessive thyroid  

                                                                                                                                                                                                                                                  



hormone. The manufacturer's literature notes that "[e]xcessive doses of thyroid result in  

                                                                                                                                                                                                                                                                  

a hypermetabolic state," essentially inducing hyperthyroidism.43   Dr. Nolan testified that  

                                                                                                                                                                                                                                                             



too much thyroid hormone can eventually lead to atrial fibrillation and bone loss, and  

                                                                                                                                                                                                                                                             



Dr.  Rouzier  testified  that  extremely  high  doses  could  lead  to  "palpitations  [and]  

                                                                                                                                                                                                                                                      



tachycardia."  But Dr. Rouzier also testified that if a patient starts seeing side effects like  

                                                                                                                                                                                                                                                             



                    42                  Dr. Rouzier explained that "normal" simply refers to "an average of the                                                                                                                                             



population" rather than what might be best for a particular patient.                                                                                                                                           And Dr. Bryman                

explained that "normal" can differ between patients at a healthy weight and those who                                                                                                                                                 

are obese, just as "normal" will differ between pediatric and geriatric patients.                                                                                                                                                             



                    43                  Hyperthyroidism  is  "[a]n  abnormality  of  the  thyroid  gland  in  which  

                                                                                                                                                                                                                                                 

secretion of thyroid hormone is usually increased and no longer under regulatory control  

                                                                                                                                                                                                                                                

ofhypothalamic-pituitary centers." Hyperthyroidism, STEDMAN'S MEDICAL DICTIONARY  

                                                                                                                                                               

(28th ed. 2006).             



                                                                                                                              -23-                                                                                                                    7220
  


----------------------- Page 24-----------------------

jitteriness (as S.Q. did), the dosage can simply be scaled back, and the drug's effect will                                                                                                                                 



 dissipate in less than 24 hours.                                                      This is consistent with the manufacturer's literature,                                                               



 which suggests that overdoses of Armour Thyroid be treated by simply reducing or                                                                                                                                               



 temporarily discontinuing the usual dosage.                                                                           And the Division failed to establish how                                                           

                                                                                                  44      Again, we cannot conscientiously say that the  

 much thyroid hormone is too much.                                                                                                                                                                                            



 Medical Board's finding  that Dr.  Odom prescribed  an excessive dosage of Armour  

                                                                                                                                                                                                                



 Thyroid is supported by substantial evidence.  

                                                                                                



                                    Similarly unsupported is the Board's conclusion that S.Q. "received too  

                                                                                                                                                                                                                             



 much thyroid hormone too soon." There was little evidence on this issue presented at the  

                                                                                                                                                                                                                              



 hearing.  In Dr. Nolan's rebuttal testimony he referred to the dosage as being "excessive  

                                                                                                                                                                                                          



 to start with," apparently by referencing only the "usual dosages" entry in the Drug  

                                                                                                                                                                                                                       



Information Handbook .  But again, there is no basis in the record for inferring that a  

                                                                                                                                                                                                                                   



physician breaches the standard of care unless he treats every patient as the "usual"  

                                                                                                                                                                                                                  



patient.  Given the strong contrary testimony of Dr. Odom and Dr. Rouzier, we conclude  

                                                                                                                                                                                                              



 that substantial evidence does not support the Board's finding that a starting dosage  

                                                                                                                                                                                                                   



 differing from those listed in the Drug Information Handbook indicated a breach of the  

                                                                                                                                                                                                                              



 standard of care.  

                                



                                    The Medical Board also accepted the Division's argument that it was unsafe  

                                                                                                                                                                                                                     



 for Dr. Odom to combine thyroid hormone and phentermine when prescribing for S.Q.  

                                                                                                                                                                                                                                         



 In support of this argument the Division cited only the product literature for Armour  

                                                                                                                                                                                                                



 Thyroid, which reads in part, "Larger doses may produce serious or even life-threatening  

                                                                                                                                                                                              



                  44                Dr. Nolan testified that in his experience, "most people [taking] around 3                                                                                                                   



 or 4 grains [180 to 240 milligrams] of dessicated thyroid per day will have perturbation                                                                                                           

 of thyroid function, which is not desirable."                                                                       But Dr. Nolan also admitted that he never                                                       

prescribes Armour Thyroid, and that he believes the use of Armour Thyroid                                                                                                                                            to be   

 "substandard   and   unconventional."     He   testified   that   practitioners  in   the   field   of  

 endocrinology have sought to remove Armour Thyroid from the market.                                                                                                        



                                                                                                              -24-                                                                                                     7220
  


----------------------- Page 25-----------------------

manifestations of toxicity, particularly when given in association with sympathomimetic                                                



amines [e.g., phentermine] such as those used for their anorectic effects."                                                                             But this   



warning is explicitly directed toward the drug's use "[i]n euthyroid patients," meaning                                                                 

patients with normal thyroid gland function.45  Whether S.Q. had normal thyroid gland  



function was another disputed issue. Dr. Nolan testified that she did, based on laboratory  

                                                                                                                                                      



tests showing thyroid levels within the normal range. The ALJ's recommended decision,  

                                                                                                                                                        



however,  described  the  symptoms  that  led  Dr.  Odom  to  his  clinical  diagnosis  of  

                                                                                                                                                                    



hypothyroidism and  noted  the  dispute  between  physicians  who  rely  on  lab  tests  to  

                                                                                                                                                                     



determine normal thyroid function and those who "subscribe to an alternative view,  

                                                                                                                                                              



accepted by many clinicians in their field of practice, to the effect that normal laboratory  

                                                                                                                                                     



findings simply reflect the thyroid hormone levels found in the population generally,  

                                                                                                                               



rather than the levels that will result in optimal functioning."                                                               But this dispute was  

                                                                                                                                                                 



ultimately irrelevant, because, as the ALJ concluded, "the Division's accusation did not  

                                                                                                                                                                   



allege that Dr. Odom misdiagnosed hypothyroidism," but rather that, assuming S.Q. had  

                                                                                                                                                                  



hypothyroidism, he prescribed too much thyroid hormone to treat it.  

                                                                                                                                       



                          Besides the manufacturer's literature, Dr. Nolan also testified that "excess  

                                                                                                                                                           



thyroid hormone and [p]hentermine is not a good combination"; "[t]he risks of using  

                                                                                                                                                              



phentermine   with   high   doses   of   Armour   Thyroid   in   persons   with   established  

                                                                                                                                                  



cardiomyopathy is not a good idea.  It's just too risky."  But Dr. Nolan did not explain  

                                                                                                                                                           



why the combination was unsafe, nor did his testimony shed light on whether he believes  

                                                                                                                                                          



phenterminecombinedwith lower doses ofthyroid hormonewouldbewithin thestandard  

                                                                                                                                                         

of care.46  

                   



             45           See Euthyroidism                  , S  TEDMAN'S  MEDICAL  DICTIONARY  (28th ed. 2006).                                      



             46           The Board's decision does not appear to rely on the                                                      Drug Information   



Handbook  for  its  findings  about  the  use  of  thyroid  hormone  and  phentermine  in  

                                                                                                                                                                   

                                                                                                                                               (continued...)  



                                                                                 -25-                                                                        7220
  


----------------------- Page 26-----------------------

                           Finally, both Dr. Rouzier and Dr. Bryman, who were able to testify from                                                                        



their own direct experience treating patients in Dr. Odom's fields of practice, concluded                                                                                            



that Dr. Odom was acting within the standard of care in prescribing phentermine and                                                                                         



thyroid   hormone   to   S.Q.     Dr.   Rouzier   testified,   "The   only   thing   that   helps   [obese,  



hypothyroid]   patients   is   weight   loss.     Get   the   fat   off.   .   .   .   How   do   you   do   that?  



Phentermine and thyroid."            



                           Having reviewed                     therecord,            "wecannot 'conscientiously'find                                      the evidence   

                                                                                                              47   The record does not support the  

supporting the [Board's] decision to be 'substantial.' "                                                                                                                      



Medical Board's conclusion that Dr. Odom prescribed excess thyroid hormone to S.Q.,  

                                                                                                                                                                          



or that it was unsafe or incompetent to prescribe phentermine in combination with thyroid  

                                                                                                                                                                     



hormone.  

                      



              D.            The Medical Board's Decision Must Be Reversed.  

                                                                                                                                          



                           We  conclude  that  the  Division  failed  to  prove  that  Dr.  Odom "lack[s]  

                                                                                                                                                                   



sufficient knowledge, skills, or professional judgment in that field of practice in which  

                                                                                                                                                                       



                              48  

[he] engages." 

                                                                                                                                                                                  

                                    We note that the legislature has expressly warned against "bas[ing] a  



              46(...continued)  



                                                                                                                                                                                   

combination.  The Handbook does not suggest that combining the two drugs is unsafe.  

                                                                                                                                                                

The Handbook 's section on phentermine advises prescribing physicians to "[a]void  

                                                                                                                                                               

concomitant use" of phentermine with several drugs but not including thyroid hormone,  

                                                                                                                                                                     

and the Handbook  does not include thyroid hormone in the list of drugs for which  

                                                                                                                                                         

phentermine may increase or decrease the effect or toxicity. Nor does the Handbook 's  

                                                                                                                                                        

section on thyroid hormone warn against combining it with phentermine.  



              47           Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634  

                                                                                                                                                                           

n.40 (Alaska 2011).  

                            



              48           See  12 AAC 40.970 (defining "professional incompetence").  

                                                                                                                        



                            The Division argues on appeal that "Dr. Odom's 'field of practice' in this  

                                                                                                                                                                           

context was the prescribing of controlled substances and other drugs and he was not free  

                                                                                                                                                                           

                                                                                                                                                        (continued...)  



                                                                                      -26-                                                                              7220
  


----------------------- Page 27-----------------------

finding of professional incompetence solely on the basis that a licensee's practice is                                                       



unconventional   or   experimental   in   the   absence   of   demonstrable   physical   harm to                                             a  



              49  

                                                                                

patient."          The Division disclaims any intent to violate this statutory directive, but it is  



                                                                                                                                         

hard to overlook the fact that this case, involving no "demonstrable physical harm to a  



                                                                                                                                          

patient,"resulted intheBoard excessivelysanctioning therespondent for an approach that  



                                                                                                                                     50  

                                                                                                                                          

the evidence showed was commonly taken by physicians in his field of practice.                                                           We  



                                                                                                                                          

concludethat the Medical Board lacked sufficient evidencetosupportits findings and that  



                                                                                                                          

the Medical Board abused its discretion by revoking Dr. Odom's medical license.  



V.         CONCLUSION  



                                                                                                                                 

                      For the foregoing reasons, we REVERSE the superior court's decision  



                                                                                                                             

affirming the decision of the Medical Board to revoke Dr. Odom's medical license.  



           48(...continued)  



                                                                                                                                        

to ignore contraindications or dosage limits merely by claiming that he was a weight loss  

                                                                                                                              

or an antiaging physician."  We reject the argument that "the prescribing of controlled  

                                                                                                                                 

substances"  is  itself  a  field  of  practice;  this  would  presumably  allow  any  medical  

                                                                                                                                        

professional  with  prescribing  authority  to  testify  about  the  standard  of  care  for  

                                                                                                                                

prescribing drugs in a specialty of which the witness has no knowledge or practical  

                                                                                                                                       

experience.  While the applicable definition of incompetence is regulatory rather than  

                                                                                                                                         

statutory, it is noteworthy that in the analogous context of medical malpractice cases the  

                                                                                                                                     

legislature has mandated that only those experts who practice in the defendant's "field  

                                                                                                                                                

or specialty" are qualified to offer opinions on the standard of care. AS 09.55.540(a)(1).  

                                                                                                                                           

It would seem incongruous to require something less when a physician's license is at  

stake.  



           49         AS 08.64.326(a)(8)(A).  

                             



           50         As the ALJ properly noted, Dr. Nolan's opinion was "the view of the  

                                                                                                                                         

American  Association  of  Clinical  Endocrinologists.                                       Dr.  Odom  and  Dr.  Rouzier  

                                                                                                                                

subscribe to an alternative view, accepted by many clinicians in their field of practice."  

                                                                                                                                                



                                                                    -27-                                                             7220
  


----------------------- Page 28-----------------------

             In the Supreme Court of the State of Alaska
  



David  M.  Odom,  M.D.,	                                       )  

                                                                            Supreme  Court  No.  S-16151  

                                                                )  

                                Appellant,                     )  

                   v.	                                         )                           Order  

                                                               )            Petition  for  Rehearing  

State  of  Alaska,  Division  of                               )  

Corporations,                                                  )  

                                                               )  

                                                                                                    

                                   Appellee.                   )            Date of Order: 2/9/2018  

                              

Trial Court Case # 3AN-14-08082CI  



                                                                                                                      

          Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  and Carney, Justices.  



                                                                                                                     

          Having considered the petition for rehearing filed by the State of Alaska, Division  

                                                                                                                             

of Corporations, Business  & Professional  Licensing, the response  filed by  David M.  

                                                                     

Odom, and the supplemental briefing of both parties,  



          IT IS  ORDERED  that  the  petition  is  GRANTED  as  follows:  



          1.	       Opinion No. 7187, issued 8/11/2017 is                     W 

                                                                                  ITHDRAWN.  



                                                                                         

          2.	       Opinion No. 7220, is issued on this date in its place.  



                                                                                                                

          3.	       The  opinion  as  modified  declines  to  adopt  a  "clear  and  convincing  

                                                                                                                         

                    evidence" burden of proof for actions to revoke medical licenses; minor  

                                                                                                                  

                    editing  changes  reflect  this  modification.                       The  opinion  is  otherwise  

                    unchanged.  



                                                             

                    Entered by direction of the court.  



                                                                                                        

                                                                     Clerk of the Appellate Courts  



                                                                     /s/  

                                                                                                                                       

                                                                     Marilyn May  

                                                                                   

cc:	      Supreme Court Justices  

                                  

          Judge Saxby  

                    

          Trial Court Appeals Clerk  

                                         

          Publishers  


----------------------- Page 29-----------------------

David M. Odom, M.D. v. State of Alaska, Division of Corporations  

Supreme Court No. S-16151  

Order of 2/9/18  

Page Two  



Distribution:    

  

            M. Lee Holen
  

                                

            Lee Holen Law Office 
 

                                   

            P.O. Box 92330
  

                                                  

            Anchorage AK 995092330
  

  

            Robert Auth
  

                              

            Attorney General's Office 
 

                                               

            1031 W 4th Ave Ste 200
  

            Anchorage AK 99501
  

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