The Michael Scally Case: How Political Subversion of
the Law Reaches the Professions through the Anti-Steroid Crusade
by
Philip Sweitzer, Esq.
Publication Date: July
28, 2006
Introduction – My Interest in the Political Use and Abuse
of Legislation Criminalizing Use of Anabolic Steroids
In his political blockbuster on the possible direction of a second-term Bush
Presidency,[1] Charles Tiefer made some
stunningly accurate predictions. Those predictions addressed the propensity
of the current Administration for making political use of the law to achieve
conservative goals, both social and economic.
[2]
During my nascent second career, four, part-time years of law school, it
was my privilege to work as Professor Tiefer’s research assistant, on several
projects: an appeal against the Secretary of Commerce;
[3] an article on the regressive
tax cuts of the Administration’s first term;
[4] and other research as work on his book
progressed. Exposure to several of the key research questions during my
second and third years piqued my curiosity about politicization of the law in
two much more specific areas: military procurement and government contracting,
[5] and drug – specifically, anabolic steroid
- enforcement. [6]
With several local bodybuilder cops members of my Baltimore area gym, and
the issue of baseball’s steroid habit resurfacing in the mainstream media in
2003 and 2004, police use of anabolics quite literally jumped off the page at
me. Serendipitously, in Manhattan on a pleasure trip, I happened upon
notice of the Foley/Grettler case screaming “hypocrisy” from the New York Post’s
headline on a newsstand. [7] Steroid use
by police officers seemed, to me, to conform to the “high technology” aspects
of modern, paramilitary policing, especially when traced to the evolution of
the Muscular Christianity movement in the United States.
[8]
Political use of the law is particularly implicated in steroid prosecutions
of police officers, because cops on steroids are a damning indictment of the
current policy and regime of drug enforcement in this country, representing
the hoax of prohibition falling in upon itself. That, however, has not
stopped the prohibitionists: instead, they have grown even more determined
to adopt increasingly draconian enforcement schemes.
[9] Apparently not convinced that the penal
warehousing of thousands of young, black men for crimes of addiction is simply
bad policy, the Bush Administration is as fixated on the “lock ‘em up” mentality
as the Reagan Administration ever was.
[10]
Where steroids are concerned – drugs that don’t even have an addictive profile
by both the DEA’s and the AMA’s own admissions – its heightened prosecution
efforts make absolutely no sense, particularly when one considers the Administration’s
willingness to turn its head to the huge menace of crystal methamphetamine.
Blindfolded by the corrupting influence of the pharmaceutical industry’s millions,
a special interest that resisted legislative efforts to restrict sales of cold
remedies containing the crystal meth ingredient pseudoephedrine, parading out
baseball players for a moralistic public scolding last year was far more politically
utilitarian. [11]
The selective prosecution of police officers for steroid use and selective
parading out of beefed-up baseball players share several features with the topic
this article will explore, i.e., the professional decertification of Dr. Michael
C. Scally by the Texas State Board of Medical Examiners.
[12] My interest in Dr. Scally’s
case is a natural extension of my interest in the topic of politicized steroid
“prosecutions” generally. The imposition of the sanction of professional
decertification functions in much the same way as the imposition of sentence
in a criminal proceeding: its purported design is to protect public safety.
It also, however, makes the sanctioned person a social and professional pariah.
In the author’s view, Dr. Scally – like police officers – is being selectively
targeted for professional discipline, because he challenges the foundational
policy upon which current therapeutic, legislative and enforcement practice
is shakily built: that anabolic steroids are unqualifiedly “bad” drugs
without legitimate therapeutic application. Put more bluntly, his research
and work does not conform to the doctrinaire mindlessness of current dogma.
His professional disciplinary proceeding also served specific political ends
for the Texas State Board of Medical Examiners, political ends that portend
to pose a tyranny of a highly misinformed majority, guided by an unchecked executive,
upon the discretionary, professional practice of medicine, the kind of autocratic
authority bicameral representative government and an independent judiciary is
supposed to prevent. [13]
Several months ago, for this website, I wrote another short piece as an “open
letter” to the members of the House Committee on Government Reform, the same
Committee that held the now infamous hearings last March on steroid use within
the ranks of professional baseball.
[14] As I noted in the piece, the religious metaphor was not
only invoked in the title of the Committee Report, it was used repeatedly throughout
the proceedings. The hearings, moreover, tended to prove the already obvious:
that steroid legislative policy has nothing to do with scientific reality.
Instead, legislative policy criminalizing use and possession of anabolics not
only is ill-informed; rather, it is intentionally ill-informed, with
lawmakers in fact choosing to ignore scientific fact for doctrine:
steroids create physical and psychological dependency, are a threat to health,
safety, and morals, because – fundamentally - they constitute “cheating.”
As I point out in the pages that follow, use of the term “doctrine” is not
coincidental: current policy emerges from the inherently religious project
of Muscular Christianity in America, out of which many of which America’s rugged
team sports – particularly football – arose.
[15] The repugnance of Congressional
leaders to steroids in competitive sport derives – by way of the evolution of
competitive football in America out of Muscular Christianity - directly from
St. Paul. [16] The science of steroids,
therefore, has been deliberately suppressed, to frame the conversation purely
in moral terms. Conversely, self-administration of the drugs and routine
overdosing by athletes to evade detection by law enforcement - being the only
current modality of use - are never within the parameters of the discussion.
Shortly after the hearings, HBO Real Sports challenged those doctrinaire
assumptions in an extended report by Armin Keteyian.
[17] In his report, Keteyian concluded
the “contrarian” position: that moderated, controlled and monitored steroid
use by adult males not only presented no significant health risks, but,
in fact, might actually be beneficial. It was as if Keteyian
had spoken into the abyss, the silence from legislators was so deafening.
To date, the author is unaware of a single attempt to refute or even seriously
dispute any of Keteyian’s basic assertions in the piece. With current
steroid policy more a belief system than a scientific hypothesis, the authoritarianism
of current policy has evaded intelligent argument largely because it is framed
around “faith,” rather than reason.
Legislators’ collective refusal to recognize the fallacy of current legislative
and enforcement policy, however, is all too typical: political expediency,
rather than scientific credibility, drives legislative and law enforcement policy
with respect to both anabolics and many other current issues of great public
importance. The Scally case demonstrates that current political expediency
on the question of steroid use has now pervaded the arena of administrative
law, threatening to compromise the practice of medicine by supplanting science
with a political agenda, in the very profession where the scientific basis for
a therapeutic regime must be the only controlling standard. Understanding
how current steroid dogma has expanded its reach to threaten the scientific
independence of the professions requires exploration of some of the factual
underlay and background of Dr. Scally’s fight for professional survival.
The Cultural and Political Context: Patronage, Evangelicalism, the
State of the Judiciary, and Use and Abuse of the Law in Texas
Because Dr. Scally is a licensed physician in Texas,
arguably the most highly politicized and ostensibly corrupt state government
in the nation (excepting, perhaps, West Virginia and Louisiana, and the author
means no disrespect to the fine citizens of any of those sister states), a few
facts about the state of the Texas judiciary, the Texas State Board of Medical
Examiners, political patronage and political use and abuse of the law in Texas
are in order here for the purpose of background. Consider the following:
1. Texas has established itself as the benchmark jurisdiction for abusing
the law for political purposes. For example, Texas’s radical redistricting
plan, largely engineered by Tom Delay and associates, is currently under review
by the Supreme Court of the United States, a plan that ensured Republicans would
pick up several seats in the House of Representatives and thus ensure Republican
control. [18] News
accounts also suggest abuse of the Internal Revenue Service as an instrument
of political intimidation against the non-profit, Texans for Public Justice,
by a Delay political ally, Sam Johnson.
[19]
2. The Tom Delay/Jack Abramoff/Grover Norquist/Ralph Reed influence peddling/lobbying
scandal has so many tentacles extending both to and from Texas, it’s hard to
keep track of them. Abramoff’s alleged funneling of money to Delay’s political
action committee is what has the Congressman currently under criminal indictment
in Texas. More recently, the New York Times has suggested possible
links between Abramoff, initimating he was instrumental in orchestrating meetings
between contributors and the President of the United States.
[20]
3. Texas’s judiciary has a demonstrated history of partisanship and lack
of political independence, elected by what former Chief Justice, Tom Phillips
called the “partisan contested high-dollar method of choosing judges.”
[21] Texas Supreme Court Justices,
thus, are blatantly political animals, with critics leveling accusations of
conflict: campaign contributors frequently have pending business before
the court. [22] Each of the sitting
Justices on the conservative Texas Supreme Court is also a Republican.
“According to Texans for Public Justice, recent campaigns of seven sitting [Texas}
Supreme Court Justices raised nearly $9.2 million in contributions of $100 or
more. Of this $9.2 million, forty percent ($3,690,363) was given by contributors
who are closely linked to parties on the court docket for the period January
1, 1994 to October 30, 1997.” [23]
4.
Texas’s death penalty
jurisprudence, especially, has made it a target of particular derision, even
before the conservative bench of the Supreme Court of the United States.
[24] Texas executes more
inmates than any other state and at the time of the Roper decision led
the nation in the execution of juvenile offenders.
5. Both former governor George W. Bush and current governor Rick Perry have
established salutary reputations for stacking administrative agencies heavily
with political appointees who were campaign contributors. In the case
of the Texas Bush Administration, three appointees to the Texas State Board
of Medical Examiners were heavy Bush campaign contributors: Thomas
D. Kirksey, Lee S. Anderson, and Peter Chang.
[25] The political appointment
process in Texas is particularly rife with cronyism and patronage, because Texas
law imposes no limits on individual campaign contributions to state officials.
[26] As such, administrative agencies
in Texas – like the Board of Medical Examiners - are predisposed to political
manipulation. [27] It comes as
very little surprise, therefore, that the Bush Administration has chosen to
bring its highly politicized management style to Washington, alienating many
career civil servants in the process. [28]
6. Finally, consider the conflicted cultural relationship Texas has with
its unabashed addiction to all things hypermasculine by virtue of being the
Mecca of dispensational, fundamentalist Christianity.
[29] This contradiction
of Texas “culture” has always fascinated me. Think “Dallas Cowboys,” for
instance, and you’re at once confronted with the conflicting images of Tom Landry
team prayer meetings and the strong, silent, Protestant stoicism of Roger Staubach,
counterposed against the rock star charisma of Troy Aikman, hulking lineman
muscle of Bob Lilly and bodacious, buxom bawdiness of the Dallas Cowboy Cheerleaders.
Camille Paglia has repeatedly commented on the tension between
the body-hating puritan and body-celebrating pagan aspects of American culture.
She relates this tension to the competing elements of the beautiful imagery
of pagan, classical Mediterranean democracy (our national monuments are all
pagan temples, as she points out, and the Herculean torso the bodybuilding ideal)
against the Northern European Protestant tradition of removing images from churches
so as not to distract from the purity of the Scriptural text.
[30] This, she believes,
set up a battle in Western culture between word and image.
[31]
Today, in Texas that battle between word and image rages in stark counterpoint.
In the sanctification of the rites of Texas high school football,
[32] steroid use by teenagers there was
bound not only to happen, but to draw particular social – and eventually legislative
- opprobrium. [33] The enormous
popularity of high school football in Texas does not merely coincide with Texas’s
quasi-theocratic politics and position as the epicenter of Protestant fundamentalism:
they are all part and parcel of the evolution of the same socio-religious cultural
influences. When one juxtaposes the convergence of the national
steroid debate around use of the drugs by high school football teams in Texas,
against subsequent targeting of a Texas physician for professional discipline,
the politically-driven result in Scally was inevitable, as will be seen.
We have described current anabolic steroid legislative and enforcement policy
as a “belief system,” or, alternatively as “doctrine.” Dr. Scally’s attorneys
described the State Board of Medical Examiners’ expert witness testimony as
“dogma,” as will also be seen. [34]
That choice of terms could hardly be more apropros. To a certain
extent, the political establishment has been willing to tolerate the use of
anabolic steroids by weightlifters, bodybuilders and strength athletes in the
Fifties, Sixties and even through the late Seventies, because these sporting
activities were largely individual, viewed to be at the fringes of competitive
sport, and did not implicate the competitive rigor and masculine testing of
team sports that grew in popularity directly out of the theological project
of Muscular Christianity.
Once use of anabolics in the competitive team sports of football and baseball
burst onto the scene in the late Seventies and – particularly - the Eighties
with the integration of strength training by athletes of all competitive stripes
(notably, the stories of Steve Courson and Lyle Alzado in professional football),
a huge, moralistic backlash ensued. [35]
Suddenly, the discussion was no longer framed around science, about how the
drugs – if used safely – could improve human performance and give athletes a
technological edge like any other technological improvement. Instead,
the discussion became one of morals that used moralistic terms like “cheating”
to legitimize the paucity of scientific bases for development of policy.
In fact, this is still the rule, rather than the exception.
[36]
The Taylor Hooton Story: Why the Texas State Board of Medical
Examiners Was Politically Predisposed to Sanction Dr. Scally
As use of anabolics in competitive sports moved
down the competitive chain to high school sports, the moralistic “cheating”
hysteria found some basis in scientific fact: steroid use by adolescents
poses particular, unacceptable risks. To those in high school athletic circles,
the Taylor Hooton story is now familiar: the conservative, “born-again”
Christian high school baseball player from the upper middle-class Dallas suburb
of Plano, covertly self-administered AAS to the complete bafflement of his parents.
[37] On July 15, 2003, he committed
suicide by hanging. The Hooton family was – naturally - devastated.
After learning posthumously of their son’s steroid use, and believing steroids
were implicated in his suicide, the Hooton family - both disturbed and incredulous
at the resistance of West Plano High School Administration either to recognize
or address the prevalence of steroid use by its high school athletes – formed
an educational foundation. Taylor’s father, Don, hit the lecture circuit
to join the anti-steroid crusade. Somewhat unsurprisingly, the Taylor
Hooton Foundation posts a scriptural excerpt on the banner of its website, from
the book of Genesis, chapter fifty (50), verse twenty (20): “You intended
to harm me, but God intended it for good to accomplish what is now being done,
the saving of lives.” [38]
On February 6, 2005, the Dallas Morning News published a three-part series
on steroid use and abuse by high school athletes, prominently featuring Don
Hooton as an outspoken “activist” in the fight against steroid use by student
athletes. [39] Proposed anti-steroid
educational legislation in the Texas House and Senate followed.
[40] Last year, Mr. Hooton’s purpose
in testifying before the House Committee on Government Reform’s inquiry into
steroid use by professional major leaguers – protecting student athletes - became
a call to action around which the politicians organized.
[41]The legitimacy
of Mr. Hooton’s parental concerns, and the legitimacy of his outrage at having
his son covertly self-administering powerful prescription medicines notwithstanding,
several things about his testimony deserve scrutiny.
First, self-administration of any prescription medication by anyone without
both legitimate need and without the objectivity of a medical professional’s
oversight is fundamentally a bad idea. This, precisely, is the problem
of which Burge complained: criminalizing use of anabolics has pushed them
underground, giving rise to an “enforcement resistant” chain of supply, so they
are not only being routinely self-dosed but routinely and exclusively self-overdosed
by all sorts of athletes. [42]
In Texas, this is particularly problematic, because one of the main sources
of illegitimate supply is – indeed – very geographically close: just over
the U.S. border to the south, in Mexico.
[43]
In the hands of a high school athlete, the consequences of steroid self-administration
are hugely problematic, because of the emergence and development of the delicate
balance of hormones that are a natural part of the masculinizing maturation
process. However, even adult, professional athletes have neither the qualification
nor the medical objectivity to oversee programs of self-administration.
Canseco’s book proves this beyond any reasonable doubt.
[44] None of this ought to come
as a surprise: Burge predicted this very problem twelve years ago, but
because he couched his argument not only in scientific reality, but in social
reality – rather than pandering to the political extremes – the politicians
turned a deaf ear. [45]
Second, a lot of the scientific data on the mood altering effects of anabolic
steroids is still out. Most of the data to support claims of “roid rage”
is anecdotal. That, however, is not to say that incidents of heightened
aggression among athletes taking steroids can be summarily dismissed:
there are too many of the same kinds of stories. However, this argument
also cuts both ways: on the one hand, there is documented evidence that
AAS have positive mood-altering psychiatric application for treating depression
in middle-aged men; [46] on the other,
episodes of “roid rage” seem to correlate directly with dosage levels.
[47] In most documented episodes,
the athletes in question are using high or very high dosages of anabolic steroids,
well beyond the kinds of dosages they would encounter in a therapeutic setting.
The links to depression and suicidal ideation after cessation of use seem
more tenuous. The NIDA and Brower both suggest a connection between “high
dosages,” irritability, aggression and possible psychological dependence on
steroids, leading to the “withdrawal” symptoms of depression, fatigue, diminished
libido, insomnia, and other characteristics, characteristics that would merit
medical intervention. [48] It therefore
makes a certain amount of sense that in a person using steroids in high dosages,
a severe depressive episode could lead to suicidal ideation. As far as
the author is aware, AAS as a causal factor in increased rates of teenage suicide
has not been definitively established.
[49]
In counterpoint, the on-camera testimony of John Romano and other interviewees
on the Keteyian Real Sports segment showed healthy, adult men commenting repeatedly
about the “overwhelming sense of well-being” they felt with “responsible use”
of anabolics. [50] It makes one wonder
why this is problematic.
Third, legislation criminalizing steroid use by healthy, adult men out of
concerns for adolescents is legislative doublespeak. If the legislative
purpose of heightened prohibitions is to keep steroids out of the hands of teenagers,
the most effective way of doing that is to legalize and regulate use of the
drugs. If both supply and dispensation is strictly controlled by pharmacists
and physicians – like Botox – both black market supply and self-dispensation
as the principal mode of use would inevitably diminish and, hopefully, simply
go away. [51] One thing is
certain: prohibition has not worked.
Expanding Prohibition by “Pursuing” and Stigmatizing Physicians:
The Scally Case
This lengthy introduction has been necessary to
show three things: first, Texas law and policy are driving national law and
policy; second, Texas policy makers are heavily influenced by cronyism, religious
fundamentalism, and belief, rather than science; and, third, because of its
current reliance on a “faith-based” rather than a “science-based” paradigm,
the Government has elected to pursue an expanded “thou-shalt-not,” draconian
system of prohibition as its steroid legislative policy. It is the author’s
opinion that this stepped-up enforcement policy was directed at physicians in
Texas, after the Taylor Hooton story broke.
In his 1994 seminal law review piece, John Burge wrote:
"The criminal aspects of steroid use and vigorous federal enforcement efforts
have further distanced the medical community from the wide-spread self-administration
of steroids. Today, it is unlikely that the average steroid user will
be able to obtain medical supervision…
Many of the federal investigations have been directed at physicians who have
prescribed steroids to athletes or other individuals desiring to increase muscle
growth – a practice this Article advocates should be the norm. One of these
physicians, Dr. George Zahorian claimed he sold steroids to World Wrestling
Federation owner Vince McMahon and various professional wrestlers including
Hulk Hogan and Rowdy Roddy Piper. Dr. Zahorian was investigated and prosecuted
by the DOJ…. Eugene J. Thirolf, Senior Litigation Counsel in the DOJ’s Office
of Consumer Litigation, commented: “The Zahorian Case was important. It
made clear that those who distributed these products in violation of that law
were going to be prosecuted, even if they are physicians…
United States Attorney Terry A. Bowers stated the intention of the
Justice Department to continue pursuing physicians…"
[52]
Though Dr. Scally’s case is not a criminal prosecution, it necessarily follows
that if the executive branch – law enforcement – can target physicians for selective
criminal enforcement action, i.e., prosecution, it can also single out a physician
for selective administrative enforcement action, - i.e., professional discipline
- by an executive agency. The excerpt from Burge also demonstrates
conclusively that prosecutors – political animals just like political appointees
to executive agencies – determine to some extent, often based at least in part
on their own political agenda, who they will and will not “pursue.”
[53] In the case of the Texas Medical
Board against Dr. Scally, identification of the problem of high-school athlete
use of steroids converged temporally with political pressure on Governor Perry,
to heighten disciplinary actions against “bad doctors” in concert with his push
to have Texas voters approve Proposition 12.
Proposition 12 purported to amend the Constitution of Texas to impose radical,
pro-physician tort reform in very broad ballot language: “A
constitutional amendment concerning civil lawsuits against doctors and health
care providers, and other actions, authorizing the legislature to determine
limitations on non-economic damages.” As Prop 12 was being tirelessly
promoted by Governor Perry, the Dallas Morning News, beginning in August, 2002,
ran a series of articles highly critical of the Texas State Board of Medical
Examiners in physician disciplinary proceedings.
[54] The Governor, earnestly campaigning
for the passage of Prop 12 and medical malpractice caps in Texas – in an apparent
effort not to look the part of a sell-out to the special interests, giving physicians
and insurance companies a legislative plum – promised to get tough on bad doctors,
increasing the budget of the TSBME. [55]
By Spring 2003, S.B. 104, introduced by Sen. Jane Nelson (R.), had passed both
the Texas House and Senate, giving the State Board of Medical Examiners more
money and greater power to “prioritize” hearing certain kinds of cases.
[56] In July, 2003, the Taylor
Hooton story broke. Events converged. Getting rid of “bad” doctors
– like doctors who prescribe anabolic steroids for patients, even if legitimately
– became a potent political tool in the hands of an executive that wanted to
see Prop 12 pass in September. And pass it did, by a very slim margin.
[57]
Disclosure: “Open Records” Closed to the Public
One of the challenges of writing this article has been assembling the information,
not that there is any lack of it. The Texas Medical Board, however, in
response to Millard Baker’s request, the proprietor of this website, solicited
an opinion from the Attorney General, asking him to exempt much of the file
material from disclosure as “investigative information.”
[58] This exemption apparently
extended even to responsive pleadings, motions, etc., filed by Dr. Scally’s
attorneys on his behalf, none of which were part of the TMB’s original disclosure
under the statute. [59]
The author, subsequently, directed an independent request to Board Assistant
General Counsel, Robert Simpson, Esq. [60]
The State’s initial disclosure to Mr. Baker was limited to the following items:
1) A letter to Mr. Baker dated December 21, 2005, as well as 2) another letter
dated the same date from Counsel Simpson to Ms. Cary; 3) Counsel Simpsons’s
January 9, 2006, letter to Katherine M. Cary, Esq., of the Office of the Attorney
General, requesting an Open Records determination; 4) a copy of the Board’s
Complaint; 5) a copy of the Board’s First Amended Complaint; 6) a copy of the
Final Order; 7) a copy of a subsequent consent or Agreed Order; 8) a Public
Information /Physician Profile on Dr. Scally, ostensibly reproduced from the
Board’s website, dated December 21, 2005.
To say that information telling Dr. Scally’s side
of the story was nowhere to be found in the TMB’s initial disclosure is an understatement.
The Texas Medical Board, rather, sought an advisory opinion from the Attorney
General of Texas to substantiate extensive nondisclosure of information.
[61] It, thereafter, refused to
release copies of even innocuous materials such as Dr. Scally’s responsive pleadings
to Mr. Baker. This is significant for at least three reasons:
first, Dr. Scally has challenged the expertise of the State’s experts; second,
Dr. Scally has challenged the State’s findings of fact (several of which are
simply categorically wrong); [62] third,
because the evidence in the case is largely confidential, protected by statute
against public disclosure as “investigative information,” the agency and its
experts are largely insulated from any public accountability.
[63]
This is important for another reason: the high level of deference afforded
the agency’s determination by Texas appellate courts. Where the agency’s
enforcement power is politically manipulated, brought to bear against a targeted
class of practitioner – for instance, a physician who has treated athletes with
known histories of anabolic steroid self-administration – judicial review, i.e.,
the process of appeal, is not, per se, an adequate procedural
safeguard. This, however, surely would not be obvious to the public, because
most laymen view an “appeal” as a complete retrial of the facts of each case
on the merits.
Appellate Review: How Evidentiary Standards and Presumptions
on Appeal Inherently Favor Affirmance of Agency Decisions
The scope of review on appeal, however, varies in different contexts.
For the most part, complete – or de novo – appellate review of
a lower court’s or administrative law judge’s (ALJ’s) ruling on both findings
of fact and conclusions of law at issue, is limited to such overarching or sweeping
issues as constitutional questions, to name one example.
[64]
In administrative law proceedings in Texas, the standard of review is particularly
deferential to the executive agency in two specific ways: 1) the quantum of
proof required of the administrative agency; and 2) the quality of proof required.
With respect to the quantum of proof, there are several evidentiary standards
in civil and criminal proceedings. The first is a “preponderance” standard,
meaning, more probable than not; the typical standard in civil proceedings,
preponderance is the evidentiary standard in Texas administrative proceedings.
Thus, the Texas Medical Board, the party bringing the disciplinary complaint,
was only required to prove by a 51% probability that what it alleged against
Dr. Scally was true. [65]
Under a “clear and convincing” evidentiary standard, were that the requirement,
the State agency would have been required to produce proof more or less in the
range of 66-75% (only an illustrative figure) probability. Were “beyond
a reasonable doubt” the evidentiary standard, the proceeding would not be an
administrative enforcement action, but a criminal prosecution, where the State
would be required to adduce evidence showing that the accused committed the
acts proving guilt in the 85-90% (again, only an illustrative figure) probability
range.
With respect to the quality – or weight - of the evidence, again, the State
agency is afforded the benefit of the doubt: the evidence must only be “substantial.”
[66] Under a substantial evidence
test, a reviewing court must affirm the judgment of the administrative law judge,
if evidence, relevant to a reasonable mind, deemed adequate to support a conclusion
of fact, has been admitted. [67]
The evidence must “not be large or even considerable in amount.”
[68]
Other presumptions on appellate review weigh heavily
in the Board’s favor:
1) The agency is not required, on appellate review, to prove that the administrative
law judge reached the correct conclusion; rather, to affirm the administrative
law judge, there must merely be “some basis” for the agency’s decision in the
record; [69]
2) A reviewing court presumes that the agency’s decision is correct, based
on substantial evidence, and the burden is on the challenging party to prove
otherwise; [70]
3) A reviewing appellate tribunal may not substitute its judgment for the
agency’s determination; [71]
4) A reviewing appellate tribunal must defer to the administrative law judge’s
assessment of witnesses’ credibility; [72]
5) To prevail on appeal, the party challenging the agency decision must prove
that a lack of substantial evidence has prejudiced his or her substantial rights.
[73]
With the deck thus heavily stacked in its favor,
as in most criminal proceedings today, [74]
the State agency thus proceeds to a professional disciplinary hearing virtually
assured that merely by bringing a complaint and presenting any credible evidence
whatsoever, not only is the ALJ likely to adopt its proposal for decision, i.e.,
to revoke the physician’s license; rather, the agency is also virtually assured
that the ALJ’s decision will withstand appellate scrutiny.
[75]
The Facts: Dr.
Scally’s Practice and Work
Michael C. Scally, M.D., is an MIT-educated chemist
and a Harvard Medical School-trained physician. Because Dr. Scally
has already posted a letter on this Internet site, and – owing to the estimated
length of this Article - it is not the author’s purpose to reiterate information
already freely available to readers at the click of a mouse.
[76] Suffice it to say that Dr.
Scally’s peer-reviewed publications on the topic of
hypogonadism after cessation
of self-adminstered anabolics, set him apart as an expert on questions of the
medical applicability of androgenic, anabolic steroid therapy, medical expertise
that is far too rare.
Allegations of the State Medical Board’s Complaint
Because Dr. Scally’s case is heavily factual, and
even more heavily scientific, a complete recounting of the facts is completely
beyond the scope of this discussion. Therefore, the author will attempt
to expose the State’s essential allegations and the ALJ’s findings of facts,
grouping these together where possible for the sake of brevity. In a ten-count
Complaint which the Texas State Board of Medical Examiners subsequently amended,
it alleged the following:
1. That Patient D.G. was treated for weight loss by Dr. Scally for a period
of approximately two years between February, 1996 and March, 1998, given weight
loss medications Phentermine [77] and
Pondimin [78] over the course of her
period of treatment by Dr. Scally. D.G. was five feet six inches tall
(5’6”) and weighed one hundred twenty-four (124) pounds at the time she initially
presented for treatment. The patient was admitted to St. Luke’s Hospital
on November 19, 1998, weighing one hundred twenty (120) pounds and complaining
of respiratory distress. She confirmed alcohol and cocaine abuse at the
time of her admission. The TBSME alleged that prescribing her dietary drugs
was below the standard of care.
2. That Patient T.C., a forty-nine-year-old (49) man presented with low testosterone
levels in February, 2000. Dr. Scally diagnosed the patient with hypogonadism
[79] and prescribed HCG,
[80] Clomiphene Citrate,
[81] Tamoxifen,
[82] Proscar
[83] and Albuterol.
[84] The Board took issue with
prescription of the drugs, the “inadequacy” of Dr. Scally’s medical records,
and his failure to conduct sufficient tests to rule out other diagnoses other
than hypogonadism.
3. That Patient M.W., a thirty-year-old man (30) was a former user of anabolic
steroids. He presented in January, 1999, complaining of depressed libido
and testicular atrophy. Dr. Scally diagnosed him with hypogonadism, and
prescribed Arimidex, [85] Testosterone
Cypionate, [86] Anadrol-50,
[87] Humatrope,
[88] Oxandrolone,
[89] Oxandrin,
[90] Winstrol,
[91] Testosterone Propionate,
[92] HCG, Clomiphene Citrate, Tamoxifen,
Proscar and Albuterol. The Complaint restates the same concerns with respect
to standard of care, as in the allegation of Count II.
4. That Patient J.S. was a thirty-two-year-old (32) male, who had used both
anabolics and insulin for three years. He presented in February, 2000,
with complaints of depressed energy and libido levels. Dr. Scally diagnosed
him with hypogonadism, and prescribed Testosterone Cypionate, Anadrol-50, HCG,
Clomiphene Citrate, Femara, [93] Niaspan,
[94] and Albuterol. The Board reiterated
the same medical treatment concerns.
5. That Patient J.M. was a forty-nine-year-old (49) male, who presented in April,
1999, with a complaint of depressed libido, erectile dysfunction and weight
gain. Dr. Scally diagnosed him with hypogonadism, ruling out secondary
pituitary dysfunction, and prescribed him Arimidex,
[95] Testosterone Cypionate, HCG, Tamoxifen,
Proscar, Trazodone, [96] L-Tryptophan,
[97] Phentermine, Valium,
[98] Eldepryl,
[99] Tamiflu,
[100] Femara, and Caverject.
[101] The Board reiterated the
same medical treatment concerns.
6. That Patient T.W. was a thirty-eight-year-old (38) male, complaining upon
presentation with depressed libido, hair loss, gynecomastia, fatigue, depression
and insomnia. He had a history of use of anabolic steroids. Dr.
Scally diagnosed the patient with hypogonadism and weight gain, and prescribed
Arimidex, Testosterone Cypionate, HCG, Tamoxifen, Proscar, Femara, Clomiphene
Citrate, Humatrope, Nandrolone Decanoate,
[102] Androl-50, Oxandrolone, Viagra,
Niaspan, and Cytomel. The Board reiterated the same medical treatment
concerns.
7. That Patient J.B. was a twenty-eight-year-old (28) male, who presented with
complaints of decreased libido and weight loss. He had a history of use
of anabolic steroids. Dr. Scally prescribed Arimidex, Testosterone
Cypionate, HCG, Tamoxifen, Femara, Clomiphene Citrate, Androl-50, Oxandrolone,
Niaspan, Albuterol, Minocycline, [103]
and Differin-Gel. [104] The Board
reiterated the same medical treatment concerns.
8. That Patient J.Bi. was a forty-four-year-old (44) female, who presented
on March 13, 2000, with a history of clitoral enlargement, weight loss, masculine
voice and acne. She had been using Winstrol for approximately two months.
Dr. Scally prescribed Proscar, Albuterol, Pyridium,
[105] Accutane,
[106] Dyazide,
[107] Oxandrolone, Minocycline, Niaspan,
Andro-Gel, [108] and Winstrol.
The Board reiterated the same treatment concerns.
9. That Patient S.L. was a fifty-seven-year-old (57) male, who presented in
August, 1999 with a prior diagnosis of hypogonadism, chronic elevated PSA (prostate-specific-antigen),
erectile dysfunction, elevated TSH (thyroid stimulating hormone) and gynecomastia.
The patient had a prostate biopsy which was negative, a two-three year history
of hormone replacement therapy and prior ineffective use of Viagra. Dr.
Scally prescribed Testosterone Cypionate, HCG, Tamoxifen, Proscar, Clomiphene
Citrate, Humatrope, Oxandrolone, Niaspan, Etdolac,
[109] Albuterol, Winstrol, Deprenlyl,
[110] Cardura,
[111]Halostensin,
[112] Bumex, Claratin D,
[113]Arimidex, Dyazide, Terbutraline,
[114] Caverject, and Tri-Mix.
The Board reiterated the same treatment concerns.
10. That Patient S.D. was prescribed a variety
of drugs commencing in July, 1998, allegedly for “bodybuilding” purposes, including
HCG, Clomiphen Citrate, Tamoxifen, Femera, Depo-testosterone, Nandrolone Decanoate,
and Femara. The Board reiterated the same treatment concerns.
Stated briefly, the Texas State Board of Medical Examiners disciplined Dr.
Scally for three things: off-label prescription of medicines, particularly
anabolic steroids and testosterone derivatives, which, as will be seen is not
below the standard of care; “incomplete” – meaning “illegible” – medical records,
which standard it invented post-facto applied to Dr. Scally uniquely; and insufficient
diagnostic testing to bear out his diagnosis of hypo-gonadism in patients.
When the record is read as a whole, what emerges is that the Texas Medical
Board was predisposed to discipline Dr. Scally, because it needed an anabolic
steroid villain: in the highly politicized atmosphere of Texas,
with teenagers committing suicide in Dallas, revelations of steroid use on the
high school grid iron, the State Board of Medical Examiners newly empowered
to go after “bad” doctors so as not to make the governor look like a special-interest
sell-out to the AMA [115] and insurance
industry groups, Dr. Scally’s professional disciplinary action served a very
specific political purpose for the Board of Medical Examiners.
Counterpoint: Dr. Scally’s Challenge to the State’s Allegations,
Witnesses and the ALJ’s Findings of Fact and Conclusions of Law
In response, Dr. Scally’s attorney, L. T. Bradt, Esq., filed objections to
the ALJ’s Proposal for Decision, along four major lines of attack: 1) that the
Board presented no competent expert testimony to support its case;
[116] 2) that the ALJ impermissibly
ignored admissions and stipulations entered into evidence;
[117] 3) that the ALJ imposed artificial
record-keeping requirements upon Dr. Scally (i.e., legibility) that heretofore
did not exist; and, 4) that the “standard of care,” advocated by the Board experts,
i.e., “watchful waiting” or “tapering,” applied to a course of therapy for patients
who wished to cease use of anabolic steroids, had no basis in the scientific
literature. Further, neither physician had any experience with this “standard
of care.”
After noting these broad lines of attack against the Board’s case, Mr. Bradt
then proceeded to martial an almost insurmountable attack of eight hundred and
thirty nine (839) specific objections to findings of fact and conclusions of
law in the proceedings, and two hundred and seventy one (271) objections to
the ALJ’s findings of fact. Though the numbers are impressive in
themselves, the scientific depth of Dr. Scally’s attack, in particular, Mr.
Bradt’s advocacy in discrediting the expertise of the Board’s experts, completely
undermines the entire credibility of the proceeding.
Procedurally, certain events in the case history bear noting: 1) Taylor
Hooton committed suicide on July 15, 2003, with the story breaking big first
in the Dallas, then in the national press; 2) The Board of Medical Examiners
filed its Complaint against Dr. Scally less than two weeks later on July 28,
2003. [118] In the author’s opinion,
the strong temporal connection between the two events suggests a highly political
motivation for bringing the disciplinary proceeding, though the case was surely
already under investigation weeks or months earlier; 3) after ten arduous days
of testimony spanning February through April, 2004, the evidentiary hearing
drew to a close, with final briefs and orders in the case filed in August and
September, a proceeding whose scope dwarfs – by comparison – many major felony
trials in the author’s home jurisdiction; 4) on November 29, 2004, Administrative
Law Judge Catherine C. Egan issued an order, revoking Dr. Scally’s license to
practice medicine, assessing him $190,000.00 in administrative penalties, and
$12,809.50 in transcription costs; [119]
5) thereafter, Dr. Scally moved for rehearing of the matter, a curious procedural
step unique to Texas, prior to petitioning for judicial review;
[120] on appeal, somewhat unsurprisingly,
the ALJ affirmed her decision, revoking Dr. Scally’s license to practice medicine
on February 4, 2005; currently, Dr. Scally’s case is on appeal to
the District Court for Travis County, Texas, the court of general jurisdiction
in Texas, captioned Michael C. Scally, M.D., v. Texas State Board of Medical
Examiners, (No. GN-501134, filed -----).
Conclusion
Dr. Scally’s professional decertification should
not withstand appellate scrutiny. That statement, however, necessarily
presumes a politically independent judiciary. As demonstrated, Texas has
no politically independent judiciary. Further, because 1) Dr. Scally’s
professional decertification serves an important political goal for the executive;
2) the executive in Texas is afforded broad executive privilege to act largely
in secret to act on its political goals; 3) the judiciary in Texas has been
loath to effectively check such action by acquiescent deference to the judgment
of administrative agencies, which deferential standard is established in Texas
law; 4) religion and government freely commingle in Texas; and 5) steroid
policy is now fundamentally related to the religious underpinning of the evolution
of American team sports out of Muscular Christianity, it is this author’s opinion
that the situation is only likely to change with the dissemination – and publication
– of the scientific data in the press. For instance, the
HBO Real Sports, Keteyian report effectively silenced the steroid crusaders, if only for a moment.
Moreover, the Austin, Dallas and Houston press should not only put out the
scientific “data;” rather, it should also shine a light on State Medical Board
proceedings, to demand full public disclosure of “open records,” at a minimum,
an important first step to ensure that physicians – like Dr. Scally - are not
being targeted for professional reprisal premised on the lack of political support
for their chosen area of practice. Such political targeting of physicians
and medical care portends ominous social consequences: when the practice
of medicine is politically – rather than scientifically – organized, moralistic
restrictions on the delivery of care will invariably, but nonetheless selectively,
target the already weak or physically compromised. Recently, this has
been most obvious in the Bush Administration’s position on stem cell research.
Anabolic steroid legislative and enforcement policy, to date, has been an
unmitigated failure, because it intentionally ignores scientific reality; and,
until it comes to terms with scientific reality instead of focusing on quasi-religious
issues of faith, it will continue to fail the test. It is the author’s
opinion that had Taylor Hooton been Dr. Scally’s patient, it is quite likely
he would still be with us today.
Endnotes
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