If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

In re VERNON EUGENE PROCTOR, M.D.

BUREAU OF PROFESSIONAL LICENSING,

Petitioner-Appellee,

UNPUBLISHED

November 4, 2021

v No. 353886

Board of Medicine

VERNON EUGENE PROCTOR, M.D., LC No. 18-017892

Respondent-Appellant.

Before: MARKEY, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

Respondent, Vernon Eugene Proctor, M.D., appeals by right the order issued by petitioner,

the Bureau of Professional Licensing, Board of Medicine Disciplinary Subcommittee, which 

suspended respondent’s license to practice medicine for two years. On appeal, respondent argues 

that the Michigan Medical Marihuana Act provided protection from negative licensing actions, 

that the administrative law judge erred by qualifying the physician witness as an expert, and that 

the administrative law judge’s findings were not supported by competent, material, and substantial 

evidence. We disagree.

I. FACTUAL BACKGROUND

Respondent issued 21,708 medical marijuana certifications between June 9, 2015 and 

June 8, 2016. The former manager of petitioner’s Michigan Medical Marijuana section testified 

that her office had the responsibility to verify medical marijuana certifications for medical 

marijuana applications, but when her office called respondent’s office to verify the certifications 

using the patients’ names and dates of birth, respondent was unable to provide her with the 

information. Respondent testified that his staff organized his files by clinic and date rather than 

patient name and birthday. Additionally, the grandparent of one of respondent’s patients, ML, 

filed a complaint alleging that respondent had not examined ML, or determined whether he had 

chronic pain or any medical history for which medical marijuana would be appropriate.

On September 5, 2018, petitioner requested an administrative hearing concerning the 

allegations involving respondent. Petitioner sought to determine whether respondent had violated 
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the Public Health Code, specifically MCL 333.16221(a) (negligence), (b)(i) (incompetence), 

(b)(vi) (lack of good moral character), (e)(iii) (promotion of unnecessary treatment for personal 

gain), and (h) (violating promulgated rules), and MCL 333.16213(1) (recordkeeping).

At the hearing, Dr. Phillip Rodgers testified as an expert and opined that respondent 

violated the standard of care applicable to ML. According to Dr. Rodgers, the standard of care for 

prescribing marijuana was the same as any other controlled substance. That standard required 

establishing a relationship with the patient, understanding the patient’s needs by obtaining a 

detailed medical history, conducting a physical examination, providing a diagnosis and medical 

decision-making, and maintaining records of patient care that included follow-up visits. Dr. 

Rodgers described the ways in which respondent’s treatment of ML violated these standards. 

Based on his review of ML’s medical records, Dr. Rodgers observed that respondent had not 

documented a physical examination or medical decision-making, that ML’s file had no diagnosis 

or treatment plan, and no plan for continuity of care. Additionally, respondent lacked records. He 

also testified that it would be impossible for respondent to meet the standards of care for 21,708 

patients a year. Dr. Rodgers calculated that respondent saw 60 patients a day on average, assuming 

he worked seven days a week. He opined that it was not possible to see 60 patients a day and meet 

a minimal standard of care. There was an amount of time involved in providing services that met 

a minimum standard of care, and it was “just not possible to see that many patients in a day.” 

Respondent treated an additional 124 complex substance abuse patients, which made it less likely 

that respondent was meeting minimum standards of care based on sheer patient volume because 

uncommon and complex patients required more time.

In his written response to questions, respondent indicated that ML did not seek to be 

diagnosed for a medical complaint. ML only sought a medical marijuana certification. 

Respondent testified that he had exercised medical judgment to determine that medical marijuana 

would alleviate ML’s symptoms. He did so on the basis that ML stated he had been using 

marijuana and it worked well for him. Respondent also considered that, because marijuana worked 

for ML and ML had a family history of substance abuse disorders, marijuana would keep ML from 

using other illegal substances. Respondent stated that his treatment plan for ML was to authorize 

his certification and discuss with ML: the ways to ingest medical marijuana; the risks and benefits 

of medical marijuana; the requirements for the medical uses of marijuana; the risks of adapting a 

tolerance to medical marijuana; ML’s responsibility to determine effective quantities; that ML 

should follow up with his primary care physician; and ML’s “opportunity” to contact his office to 

follow up.

Further, respondent did not agree that he recommended 21,708 certifications from 

June 2015 to June 2016. He believed it was more than 1,000, but he could not say whether it was 

more than 5,000. He also testified, “I go to 5 clinics a day, and there’s 20 to 50 patients there and 

I work 12 to 14 hours a day 7 days a week.” Respondent agreed that 20 times five was 100, and 

after he testified that he could not multiply 100 by 365 in his head, his counsel conceded that it 

was about 36,500. He disagreed that he saw that many patients a year. There were ranges of 

patients at a clinic, which might be 10 to 30 patients.

The administrative law judge found that respondent was negligent for failing to meet ML 

in person, failing to diagnose his conditions, and failing to plan for his continuity of care. The 

judge found respondent’s explanation of how he was able to issue 21,708 certificates in a year 
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“unconvincing.” He found that respondent was incompetent for failing to conform to the standard 

of care and consistently signing certificates for an extended period of time. The judge found that 

respondent lacked good moral character for issuing a high volume of certificates, which 

demonstrated a lack of openness, fairness, and honesty to his patients. The judge determined that

the exceptions in the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., did 

not apply.1 Finally, the judge determined that respondent had failed to maintain medical records. 

The Board of Medicine disciplinary subcommittee adopted the administrative law judge’s 

proposed decision, and ordered respondent’s medical license suspended for two years. He now 

appeals.

II. ANALYSIS

A. STANDARDS OF REVIEW

When reviewing an agency’s decision, a court’s review is limited to determining whether 

the agency’s action was authorized by law, and whether the agency’s findings of fact “are 

supported by competent, material, and substantial evidence on the whole record.” Const 1963, art 

6, § 28. Substantial evidence is “evidence that a reasoning mind would accept as sufficient to 

support a conclusion.” Dignan v Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 

576; 659 NW2d 629 (2002). This is more than a scintilla but less than a preponderance of the 

evidence. VanZandt v State Employees’ Retirement Sys, 266 Mich App 579, 584; 701 NW2d 214 

(2005). This Court reviews de novo questions of law surrounding an agency’s decision. In re 

Complaint of Rovas Against SBC Mich, 482 Mich 90, 100-102; 754 NW2d 259 (2008).

This Court reviews de novo the preliminary questions of law surrounding the admission of 

evidence, such as whether a rule of evidence bars admitting it. Mich Dep’t of Transp v Haggerty 

Corridor Partners Ltd Partnership, 473 Mich 124, 134; 700 NW2d 380 (2005). This Court 

reviews for an abuse of discretion preserved challenges to evidentiary rulings. Edry v Adelman, 

486 Mich 634, 639; 786 NW2d 567 (2010). A court abuses its discretion when its decision falls 

outside the range of principled outcomes. Id.

B. MMMA IMMUNITY

Respondent argues that he was not subject to licensing consequences pursuant to the 

MMMA. We disagree.

The MMMA provides in pertinent part:

A physician shall not be subject to . . . disciplinary action by the Michigan 

board of medicine, the Michigan board of osteopathic medicine and surgery, or any 

other business or occupational or professional licensing board or bureau, solely for 

providing written certifications, in the course of a bona fide physician-patient 

relationship and after the physician has completed a full assessment of the 

qualifying patient’s medical history, or for otherwise stating that, in the physician’s 

 

1 We will use the more common spelling, “marijuana,” throughout this opinion.
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professional opinion, a patient is likely to receive therapeutic or palliative benefit 

from the medical use of marihuana to treat or alleviate the patient’s serious or 

debilitating medical condition or symptoms associated with the serious or 

debilitating medical condition, provided that nothing shall prevent a professional 

licensing board from sanctioning a physician for failing to properly evaluate a 

patient’s medical condition or otherwise violating the standard of care for 

evaluating medical conditions. [MCL 333.26424(g) (emphasis added).]

First, MCL 333.26424(g) contains an explicit exception for violations of the standard of 

care. Respondent was not subject to disciplinary action solely for providing written certifications 

for medical marijuana. The administrative law judge concluded that respondent had violated MCL 

333.16221(a) (negligence) because respondent had not met the applicable standards of care.

Second, respondent did not conduct a full assessment of ML. The MMMA describes a full 

assessment for the purposes of a written certification as “a full assessment of the patient’s medical 

history and current medical condition, including a relevant, in-person, medical evaluation.” MCL 

333.26423(q)(2) (emphasis added).

2

 Both respondent and ML testified that they met through a 

video system. Therefore, respondent did not conduct a “full assessment of the qualifying patient’s 

medical history” for the purposes of immunity under MCL 333.23424(g).

C. EXPERT QUALIFICATION

Respondent next argues that Dr. Rodgers was not properly qualified as an expert because 

he relied on medical standards he previously disavowed and his methods were unreliable because 

literature did not support them. This argument lacks merit because Dr. Rodgers testified that the 

standard of care was determined by practice, not publications, but he nevertheless relied on two 

publications to support his testimony regarding the standard of care.

An expert witness may offer an opinion only if he or she has specialized knowledge that 

will assist the trier of fact to understand the evidence. Edry, 486 Mich at 639. MRE 702 provides 

the mechanism by which experts may offer testimony:

If the court determines that scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a 

fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify thereto in the form of an opinion or otherwise if 

(1) the testimony is based on sufficient facts or data, (2) the testimony is the product 

of reliable principles and methods, and (3) the witness has applied the principles 

and methods reliably to the facts of the case.

MRE 702 obligates the trial court to “ensure that any expert testimony admitted at trial is 

reliable.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004). The 

support of peer-reviewed, published literature is not always necessary for admissibility. Edry, 486 

 

2 MCL 333.26423 was recently amended, effective October 11, 2021. 2021 PA 62. This provision 

is now contained in MCL 333.26423(r)(2).
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Mich at 641. However, a lack of supporting literature may render an expert’s opinion unreliable. 

Id. at 640.

In this case, Dr. Rodgers testified that he was board-certified in family medicine with a 

certificate of qualification in hospice and palliative medicine. He created a report as part of his 

review of respondent’s case. His report relied in part on the Michigan Boards of Medicine and 

Osteopathy standards, and a statement issued by the American Society of Addiction Medicine. 

The American Board of Addiction Medicine components for a full evaluation “map[ped] at a high

level very closely with” his opinion about the standard of care. The Michigan Boards standards 

were also very similar. However, the standards of care were “not laid out in a specific piece of 

paper,” but were the sum of prevailing practices. Additionally, although Dr. Rodgers did not recall 

testifying in April 2016 that he did not rely on the Michigan Boards standard to determine the 

standard of care, after reviewing his testimony, he testified that it was consistent with the Michigan 

Boards standard of care.

We conclude that the administrative law judge’s decision to certify Dr. Rodgers as an 

expert did not fall outside the range of principled outcomes. This case is not similar to Edry, 486 

Mich at 641-642, in which the doctor’s opinion testimony was contradicted by the published 

literature, and Internet materials produced by the party who had hired the doctor as an expert did 

not directly support the doctor’s testimony. Dr. Rodgers’s opinion was based on prevailing 

practices that were consistent with literature published by reputable sources.

D. NEGLIGENCE AND INCOMPETENCE

Additionally, respondent asserts that petitioner erred by accepting the administrative law 

judge’s finding that he was negligent and incompetent. We disagree.

Subject to exceptions that do not apply in this case, the Board of Medicine Disciplinary 

Subcommittee shall investigate allegations of

(a) . . . a violation of general duty, consisting of negligence or failure to 

exercise due care, including negligent delegation to or supervision of employees or 

other individuals, whether or not injury results, or any conduct, practice, or 

condition that impairs, or may impair, the ability to safely and skillfully engage in 

the practice of the health profession.

(b) Personal disqualifications, consisting of 1 or more of the following:

(i) Incompetence. . . . [MCL 333.16221.]

After finding a violation of either of these subsections, the subcommittee may sanction a 

respondent with probation, limitation, denial, suspension, revocation, permanent revocation, 

restitution, or a fine. MCL 333.16226(1).

First, respondent argues that medical malpractice standards regarding specialist testimony 

should be applied to expert witnesses under licensing review in order to comply with due-process 

requirements. We reject this argument.
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The Michigan and United States Constitutions provide in part that no person shall be 

deprived of property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17. 

Once a license is granted, it becomes a protected property interest that may not be revoked without 

due process of law. Bio Tech, Inc v Dep’t of Natural Resources, 235 Mich App 77, 81; 596 NW2d 

633 (1999). The essential purpose of procedural due process is to ensure fundamental fairness, 

which requires notice of the proceeding and an opportunity to be heard. Al-Maliki v LaGrant, 286 

Mich App 483, 485; 781 NW2d 853 (2009).

Respondent’s argument is based on a statutory standard, not a due-process standard. In 

medical malpractice cases, a plaintiff must prove that the respondent, if a specialist, failed to 

provide a standard of care consistent with that specialty. MCL 600.2912a(1)(b). This statutory

requirement is not related to a respondent’s notice of disciplinary proceedings or a respondent’s

opportunity to be heard. There is no basis from which to conclude that the result in respondent’s 

case was fundamentally unfair.

Second, respondent argues that the standards applicable to an independent medical 

evaluation should be applied to his case. We conclude that respondent has abandoned this 

argument by failing to support it.

“A party may not merely announce a position and leave this Court to discover and 

rationalize the basis for the claim.” Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 

264 (2000). In this case, respondent asserts that the standards for independent medical 

examinations could apply in licensing cases, cites a case containing that standard, and defines the 

practice of medicine in a footnote. Respondent has not explained why an independent medical 

examination standard should be applied in a licensing case. Respondent does not even positively 

assert that such a standard should be applied; he asserts that a standard “could” be applied. We 

conclude that respondent has abandoned this argument.3

Third, respondent argues that petitioner did not establish that respondent actually breached 

the standard of care related to ML. We conclude that competent, material, and substantial evidence 

supported the administrative law judge’s findings.

This Court gives deference to an agency’s findings of fact, “particularly with regard to 

witness credibility and evidentiary questions.” VanZandt, 266 Mich App at 588. Additionally, 

circumstantial evidence and inferences from the evidence may support findings of fact. See Kalaj

v Khan, 295 Mich App 420, 429; 820 NW2d 223 (2012).

Dr. Rodgers opined that the standard of care required establishing a relationship with the 

patient, understanding the patient’s needs, conducting a review, and having “a face-to-face handson interaction” with the patient, and he opined that a physical examination was important. In this 

case, respondent met ML through a video system when he had not previously interacted with ML. 

 

3 Regardless, there would be no basis to adopt this standard because the purposes of independent 

medical evaluations and medical marijuana certifications are different. Compare Bureau of Health 

Professions v Severn, 303 Mich App 305, 309-310; 842 NW2d 561 (2013), with MCL 

333.26422(a).
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ML had complained of back pain and headaches. Dr. Rodgers opined that telemedicine was not 

sufficient because respondent could not test range of motion or conduct a neurological 

examination. Dr. Rodgers also opined that respondent acted below the standard of care when he 

failed to diagnose ML, but respondent testified that a diagnosis was not necessary. Although 

respondent provided explanations for why he did not think tests or a diagnosis were necessary or 

appropriate, it was for the administrative law judge to determine his credibility and the weight of 

the evidence. Finally, Dr. Rodgers opined that continuity of care was part of the standard of care, 

and ML’s medical records did not include a plan for continuity of care because it placed the onus 

on the patient to follow up.

We conclude that competent, material, and substantial evidence supported the 

administrative law judge’s finding that respondent violated the standard of care by failing to meet 

with ML, diagnose his medical conditions, or provide for continuity of care.

We also reject respondent’s argument that he could not have breached his standard of care 

related to ML because he could not foresee causing an injury to ML when ML already used 

marijuana.

Generally, a plaintiff proves that a defendant breached his or her duties by establishing that 

the defendant’s actions fell below the general standard of care to act reasonably to prevent harm 

to others. Case v Consumers Power Co, 463 Mich 1, 6-7; 615 NW2d 17 (2000). If it is not 

foreseeable that the defendant’s conduct could pose a risk of injury to a person with whom the 

defendant has a relationship, then there is no duty not to engage in that conduct. Hill v Sears, 

Roebuck & Co, 492 Mich 651, 661; 822 NW2d 190 (2012).

In this case, ML testified that he told respondent that he already self-medicated with 

marijuana. ML and respondent both testified that ML followed up with him in phone 

conversations. However, Dr. Rodgers testified that it was necessary for a physician to document 

the history, examination, and medical decision-making for purposes of community and patient 

safety. He explained that documentation was important to inform service the next time the 

physician saw the patient, or if the patient was seen by another provider. However, respondent did 

not document his follow-up care or ML’s record of evaluations, services, tests, and prior history. 

Respondent admitted that he did not document at least one phone conversation with ML. Because 

Dr. Rodgers testified that doing so was necessary for ML’s safety, respondent’s argument lacks 

merit.

Next, respondent argues that, because negligence depends on a standard of care at a given 

time and the administrative law judge did not state a time frame during which negligence occurred, 

his findings were insufficient. The record does not support this argument.

The party seeking reversal must provide the court with a record that verifies the basis of 

his or her argument. Petraszewsky v Keeth, 201 Mich App 535, 540; 506 NW2d 890 (1993). The 

administrative law judge specifically found that respondent met with ML on January 3, 2017, using 

telemedicine, and that ML’s medical records were subject to a subpoena on May 19, 2017. The 

proposal for decision clearly indicates the time frame during which the negligence occurred.
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Finally, respondent argues that he was not incompetent for the same reasons that he was 

not negligent. Because respondent’s negligence arguments fail, his incompetence argument also 

fails. See MCL 333.16226(1).

E. GOOD MORAL CHARACTER

Respondent argues that the administrative law judge erred by finding that he lacked good 

moral character because the judge used the wrong statutory definition, and that competent, 

material, and substantial evidence did not support the judge’s findings because respondent’s 

signature had been forged. We reject these arguments.

A disciplinary subcommittee may investigate allegations of

[p]ersonal disqualifications, consisting of 1 or more of the following:

* * *

(vi) Lack of good moral character. . . . [MCL 333.16221(b).]

First, respondent’s argument that the administrative law judge relied on the wrong 

definition of “good moral character” is baseless. MCL 333.16104(6) defines good moral character 

as “good moral character as defined in, and determined under, . . . MCL 338.41 to 338.47.” MCL 

338.41 in turn defines “good moral character” as “the propensity on the part of an individual to 

serve the public in the licensed area in a fair, honest, and open manner.” The judge explicitly used 

the definition of good moral character found in MCL 338.41.

Second, respondent argues that the administrative law judge’s finding that he lacked good 

moral character was insufficient because he presented evidence that some of his certifications had 

been forged and that he did not concede that he issued a high number of certifications. These 

findings were credibility determinations that this Court will not overturn.

This Court gives deference to an agency’s findings of fact, “particularly with regard to 

witness credibility and evidentiary questions.” VanZandt, 266 Mich App at 588. In this case, in 

2012, respondent wrote the Department of Licensing and Regulatory Affairs to indicate that his 

signature had been forged on certifications. The program manager testified that the Michigan 

Medical Marijuana Program attributed 21,708 certifications to respondent, but respondent did not 

agree that he recommended 21,708 certifications from June 2015 to June 2016. Dr. Rodgers 

testified that it was not possible to see 60 patients a day and meet minimum standards of care, but 

respondent testified that he worked 12 to 14 hours a day, seven days a week, went to five clinics a 

day, and saw between 10 and 50 patients at each clinic. The administrative law judge explicitly 

found respondent’s explanations of how he did so “unconvincing.”

Competent, material, and substantial evidence supported his finding that respondent lacked 

good moral character for violating the standard of care regarding so many patients. Whether 

respondent actually certified 21,708 patients for the use of medical marijuana or whether his 

signature was forged were credibility and weight determinations that we will not overturn.
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F. RECORDKEEPING

Respondent argues that competent, material, and substantial evidence did not support the 

administrative law judge’s finding that he failed to properly maintain medical records because 

petitioner only presented evidence that he had not been able to verify his certifications on the basis 

of the information that petitioner provided to him. We disagree.

The disciplinary subcommittee may investigate an allegation that the licensee violated “the 

medical records access act, . . . MCL 333.26261 to 333.26271.” MCL 333.16221(s). A licensed 

individual must keep records for each patient to whom the licensed individual has provided 

medical services, and the records “shall be maintained in such a manner as to protect their integrity, 

to ensure their confidentiality and proper use, and to ensure their accessibility and availability to 

each patient or his or her authorized representative as required by law.” MCL 333.16213(1).

Again, circumstantial evidence and inferences from the evidence may support findings of 

fact. See Kalaj, 295 Mich App at 429. In this case, the administrative law judge found that the 

fact that petitioner was unable to obtain documentation was sufficient to establish that respondent 

did not comply with statutory recordkeeping requirements. The Michigan Medical Marijuana 

Program manager testified that people within her office called respondent’s office to try to verify 

his certification on an application. Respondent’s staff stated that they could not confirm 

certification unless the manager provided a date on which an application was signed.

Although respondent argues that it was not his duty to verify certification and that his 

records were accessible by information that petitioner chose not to provide, his arguments miss 

the point. Respondent’s inability to provide medical records to petitioner provided circumstantial 

evidence that the patients’ medical records were not reasonably accessible to his patients. If 

respondent could not provide medical records to petitioner on the basis of the patient’s name and 

date of birth, the patients would not have been able to obtain their own medical records with the 

same information. We conclude that the administrative law judge’s finding was supported by 

competent, material, and substantial evidence.

Affirmed.

/s/ Jane E. Markey

/s/ Jane M. Beckering

/s/ Mark T. Boonstra