24228 Federal Register / Vol. 87, No. 78 / Friday, April 22, 2022 / Notices 

*A I have made minor, nonsubstantive, and 

grammatical changes to the RD and nonsubstantive 

conforming edits. Where I have added to the ALJ’s 

opinion to include additional information, I have 

noted the additions in brackets or in footnotes 

marked with an asterisk and a letter. Where I have 

made substantive changes, omitted language for 

brevity or relevance, or where I have modified the 

ALJ’s opinion, I have noted the edits in brackets 

and have included specific descriptions of the 

modifications in brackets or in footnotes marked 

with an asterisk and a letter. Within those brackets 

and footnotes, the use of the personal pronoun ‘‘I’’ 

refers to myself—the Administrator. 

*B I have ommitted the RD’s discussion of the 

procedural history to avoid repetition with my 

introduction. 

1 [Omitted pursuant to n.*B.] 

2 [Omitted pursuant to n.*B.] 

3 [Omitted pursuant to n.*B.] 

*C For brevity, I have omitted large portions of 

this section that were repetitive of the OSC and 

have replaced them with a summary of the 

allegations. 

4 [Omitted pursuant to n.*C.] 

*DHowever, in its Posthearing Brief, the 

Government did not address Cal. Health & Safety 

Code § 11154(a), at all, and seemed to cite to Cal. 

Bus. & Prof. Code § 2234 to support the legal 

proposition that the Government does not have to 

establish that the misconduct was intentional. 

Because there is not adequate legal support in the 

Posthearing Brief for a finding regarding either of 

these state laws, I am not addressing them further 

herein. 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 20–10] 

Brenton D. Wynn, M.D.; Decision and 

Order 

On February 20, 2020, a former Acting 

Administrator of the Drug Enforcement 

Administration (hereinafter, DEA or 

Government), issued an Order to Show 

Cause and Immediate Suspension of 

Registration (hereinafter collectively, 

OSC) to Brenton D. Wynn, M.D. 

(hereinafter, Respondent). 

Administrative Law Judge Exhibit 

(hereinafter, ALJ Ex.) 1 (OSC), at 1. The 

OSC immediately suspended 

Respondent’s DEA Certificate of 

Registration Number BW7210759 

(hereinafter, registration or COR) 

‘‘because [Respondent’s] continued 

registration constitutes an ‘imminent 

danger to the public health or safety.’ ’’ 

Id. (citing 21 U.S.C. 824(d)). The OSC 

also proposed revocation of 

Respondent’s registration, the denial of 

any pending applications for renewal or 

modification of such registration, and 

the denial of any pending applications 

for any additional DEA registrations 

pursuant to 21 U.S.C. 824(a)(4) and 

823(f), because Respondent’s 

‘‘continued registration is inconsistent 

with the public interest.’’ Id. 

In response to the OSC, Respondent 

timely requested a hearing before an 

Administrative Law Judge. ALJ Ex. 2. 

The hearing in this matter was 

conducted on November 16–20, 2020, 

via video teleconference technology. On 

December 30, 2020, Administrative Law 

Judge Mark M. Dowd (hereinafter, the 

ALJ) issued his Recommended Rulings, 

Findings of Fact, Conclusions of Law 

and Decision (hereinafter, 

Recommended Decision or RD) to which 

neither party filed Exceptions. The ALJ 

transmitted the record to me on January 

25, 2021. Having reviewed the entire 

record, I adopt the ALJ’s rulings, 

findings of fact, as modified, 

conclusions of law and recommended 

sanction with minor modifications, 

where noted herein. I issue my final 

Order in this case following the 

Recommended Decision.*A

Recommended Rulings, Findings of 

Fact, Conclusions of Law, and Decision 

of the Administrative Law Judge *B123

The issue to be decided by the 

Administrator is whether the record as 

a whole establishes by a preponderance 

of the evidence that the DEA Certificate 

of Registration, No. BW7210759, issued 

to Respondent should be revoked, and 

any pending applications for 

modification or renewal of the existing 

registration should be denied, and any 

pending applications for additional 

registrations should be denied, because 

his continued registration would be 

inconsistent with the public interest 

under 21 U.S.C. 823(f) and 824(a)(4). 

After carefully considering the 

testimony elicited at the hearing, the 

admitted exhibits, the arguments of 

counsel, and the record as a whole, I 

have set forth my recommended 

findings of fact and conclusions of law 

below. 

The Allegations *C 4

Overview 

[The Government alleged Respondent 

violated federal and California law by 

issuing numerous controlled substance 

prescriptions outside the usual course of 

professional practice and not for a 

legitimate medical purpose to four 

individuals between September 2016 

and September 2019. ALJ Ex. 1. 

Specifically, the Government alleged 

that Respondent violated 21 CFR 

1306.04(a) and the following state laws 

and regulations:*D

a. Cal. Health & Safety Code 

§ 11153(a), requiring that a 

‘‘prescription for a controlled substance 

shall only be issued for a legitimate 

medical purpose by an individual 

practitioner acting in the usual course of 

his or her professional practice’’; 

b. Cal. Health & Safety Code 

§ 11154(a), directing that ‘‘no person 

shall knowingly prescribe, administer, 

dispense, or furnish a controlled 

substance to or for any person . . . not 

under his or her treatment for a 

pathology or condition . . .’’; 

c. Cal. Bus. & Prof. Code § 2242, 

prohibiting the ‘‘[p]rescribing, 

dispensing, or furnishing [of controlled 

substances] . . . without an appropriate 

prior examination and a medical 

indication,’’ the violation of which 

constitutes unprofessional conduct; 

d. Cal. Bus. & Prof. Code § 2234, 

defining unprofessional conduct to 

include: ‘‘[g]ross negligence’’; 

‘‘[r]epeated negligent acts’’; 

‘‘[i]ncompetence’’; or ‘‘[t]he commission 

of any act involving dishonesty or 

corruption that is substantially related 

to the qualifications, functions, or duties 

of a physician and surgeon’’; and 

e. Cal. Bus. & Prof. Code § 725, further 

defining unprofessional conduct to 

include ‘‘[r]epeated acts of clearly 

excessive prescribing, furnishing, 

dispensing, or administering of 

drugs. . . .’’ 

Additionally, the Government alleged 

that Respondent issued prescriptions 

outside of California’s applicable 

standard of care as outlined in the 

‘‘Guide to the Laws Governing the 

Practice of Medicine by Physicians and 

Surgeons,’’ Medical Board of California, 

7th ed. 2013 (the ‘‘Guide’’). See ALJ Ex. 

1. The Government alleged that these 

prescriptions fell below the standard of 

care applicable to the practice of 

medicine in California, and that 

therefore, these prescriptions violated 

federal and California State law. 

The OSC provided specific examples 

of Respondent’s alleged failures related 

to his prescribing controlled substances 

to the four individuals: D.P., J.K., D.L., 

and P.S. ALJ Ex. 1, at 4–10. Examples 

of the Government’s allegations as to 

each patient included that Respondent: 

(1) Prescribed dangerous controlled 

substances and combinations of 

controlled substances resulting in high 

morphine milligram equivalent (MME) 

dosages without a medically legitimate 

basis; (2) failed to resolve red flags of 

diversion; (3) failed to discuss the risks 

of the prescribed controlled substances 

sufficiently to obtain informed consent; 

(4) failed to appropriately evaluate and 

monitor his patients; and/or (5) failed to 

document physical examinations and 

other information as required by the 

standard of care. The Government 

alleged that these failures constituted 

extreme departures from the standard of 

care in California. Because of these 

failures, the Government alleged that 

Respondent regularly put his patients at 

significant risk for harm, including 

overdose or death.] 


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The Hearing 

Government’s Opening Statement 

The Government argued that the 

Controlled Substances Act sets up a 

closed system for distribution of 

pharmaceutical controlled substances 

from DEA registrants. Tr. 12. In order for 

that system to stay closed, the 

professionals entrusted with DEA 

registrations are expected and required 

to be professional. Doctors are expected 

to know the bounds of their profession, 

to prescribe within those bounds and 

rules, to know the dangers of controlled 

substances, and prescribe them in a 

matter that reflects those dangers. Tr. 

12–13. When doctors fall short of these 

expectations they are supposed to be up 

front about it and change course. Tr. 13. 

The evidence in this case will show a 

doctor who is prescribing controlled 

substances in an unsafe manner and 

without regard to the rules on 

prescribing pain medication. The 

Respondent prescribed opioids at 

extremely high and dangerous levels 

and the Respondent did not adequately 

address the risks of combining opioids 

with other medications, such as 

benzodiazepines, with his patients. The 

Respondent also prescribed substances 

to patients with abnormal drug tests, 

including tests that were positive for 

drugs that patients should not have had 

in their system, or negative for 

prescribed substances that should have 

been in their system. The Respondent 

prescribed controlled substances in a 

dangerous manner that put his patients’ 

lives at risk. 

It is not the Government’s burden to 

prove that every prescription the 

Respondent issued to every patient was 

outside the usual course of professional 

practice. Tr. 13–14. The Government 

expected that the Respondent would 

present the Tribunal with testimony 

from patients and other doctors who 

believed that Respondent is a good 

doctor and a good member of the 

community. Tr. 14. However, on 

balance, the character testimony and 

other testimony offered by the 

Respondent cannot outweigh the fact 

that the Respondent issued 

prescriptions that were both outside the 

course of usual and professional 

practice in California and not for a 

legitimate medical purpose. 

At the closing of the case, the 

Government urged this Tribunal to look 

at the Government’s evidence showing a 

doctor who put his patients in danger by 

not abiding by the requirements as 

established by the Controlled 

Substances Act and the laws of 

California for issuing controlled 

substances. The Government argued that 

Respondent’s professional access to 

controlled substances is inconsistent 

with the public interest. 

Respondent’s Opening Statement 

Respondent argued that this case is a 

reflection of a pain management 

specialist in San Diego with four 

patients, who represent less than one 

percent of his overall practice. Tr. 15. 

The patients with their high morphine 

milligram equivalent dosages were 

patients who came to him from a 

referral, already on these high doses. 

None of these patients passed away, of 

course. In all his years of practice, none 

of his patients have ever passed away 

due to an overdose or had to be 

transported to a hospital under a 911 

service because of an overdose. The four 

patients the Government alleged 

represent an aberration in the sense of 

the high amount of opioid medications 

that they were taking. 

The Respondent had evidence from 

expert witnesses that disputed the 

Government’s case about whether in 

these particular patients the high 

amounts represented a breach in the 

standard of practice and therefore was 

practicing outside the scope of the law. 

Respondent said the evidence would 

show that the Respondent had 

consistently followed most if not all of 

the architectural requirements for a pain 

management doctor to follow patients 

who are being prescribed pain 

medication such as having pain 

management agreements, checking 

CURES reports, doing urine screens, or 

other types of screening. Tr. 16. The 

Respondent’s experts told the Court that 

the Respondent exceeded the standards 

of practice at the time with how he 

followed these patients with numerous 

drug screens, frequent visits, and close 

monitoring. There was a dispute 

between the experts about the degree to 

which these patients should have been 

on these medications and the 

Respondent’s efforts to try to bring them 

off those high doses eventually. 

Respondent said that the Tribunal 

would see, upon review of the records, 

that the documentation from the 

Respondent’s practice throughout the 

years with his patients had not followed 

best documentation practices. As a 

consequence of this, the Government’s 

witnesses have made assumptions that 

certain things have occurred that did 

not, in fact, actually occur. The 

evidence included examples of 

inconsistent urine drug screen or blood 

sample screens where Respondent 

properly decided to continue to 

prescribe medications to the patients 

even though the records do not reflect 

the Respondent’s analysis. Tr. 16–17. 

The evidence, Respondent argued, 

would also show that none of the 

patients were diverting any medications 

or abusing them, and that the purposes 

of the Controlled Substances Act, to 

guard against diversion or abuse by 

patients, had not been fulfilled here 

because there was no diversion and no 

abuse of the medications. Tr. 17. 

In the end, ‘‘the documentation fails 

in instances throughout the patients’ 

care and [the Respondent] has taken 

steps to improve his documentation.’’ 

Tr. 17. Evidence will show that the 

Respondent has taken a medical recordkeeping course from the University of 

San Diego. He has also taken a 

prescribing course from the University 

of San Diego to enhance his future 

practice. In the end, the Respondent 

asked the Tribunal to allow the 

Respondent to retain his certificate. If 

monitoring conditions need to be 

attached to that, then the Respondent 

said that he would fully follow those 

conditions. The Respondent argued that 

he represents a very significant provider 

in an under-served, under-privileged 

community in San Diego that needs 

doctors like him. Tr. 17–18. 

Government’s Case-in-Chief 

The Government presented its casein-chief through the testimony of two 

witnesses. First, the Government 

presented the testimony of a Diversion 

Investigator. Secondly, the Government 

presented the testimony of its expert, 

Timothy Munzing, M.D. 

Diversion Investigator (DI) 

DI has been a DI for thirty-two years. 

Tr. 21, 47. As a DI, her duties include 

the enforcement of the Controlled 

Substances Act, specifically the CFR, 

which is the Code of Federal 

Regulations as they pertain to DEA 

registrants and controlled substances. 

Her duties also include regularly 

inspecting and investigating DEA 

registrants and their handling and 

accountability of controlled substances 

and detecting any diversion from the 

licit to illicit market. 

She investigates any DEA registrant, 

including doctors and pharmacists, to 

ensure they are following the 

requirements of the Controlled 

Substances Act and California 

regulations and that they are prescribing 

controlled substances in the usual 

course of professional practice and for 

legitimate medical purposes. Tr. 22, 57– 

58. As a DI, she is looking for instances 

or examples of overprescribing as they 

tend to suggest that the patient may not 

be taking prescriptions as he should, 

and oftentimes is diverting them. Tr. 48. 

She has found that some physicians are 


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5This included 1,700 prescriptions or 190,000 

dosage units, which was almost thirty-two percent 

of all the prescriptions the Respondent issued. Tr. 

24, 50. 

6On cross-examination, the Respondent’s counsel 

asked if DI was referring to notes during her 

testimony. Tr. 40. DI responded that she was 

referring to her notes and Dr. Munzing’s report. The 

Respondent’s counsel then requested that DI 

provide him a copy of her notes as well as Dr. 

Munzing’s report. Tr. 41–42. After hearing from 

both counsel, the Tribunal ordered that the 

Government provide DI’s notes to the Respondent’s 

counsel via email, but did not order Dr. Munzing’s 

be shared as DI’s testimony was very general as to 

Dr. Munzing’s findings and did not include 

anything outside the Order to Show Cause and 

Prehearing Statements. Tr. 42–47. 

7 Dr. Munzing’s CV was entered into evidence. Tr. 

61–62; GX 2. 

prescribing a lot of opiates and that 

there is a severe problem with 

physicians overprescribing and patients 

diverting drugs. 

In order to conduct her investigations, 

she uses information technology, the 

computer, for analyzing records. Tr. 22. 

She uses Excel spreadsheets, computer 

technology in the tables that she inserts 

inside the Excel spreadsheets, and 

subpoenas to obtain records and 

conduct auditing. Tr. 21–22. 

DI first learned about the Respondent 

when a pharmacist came to the DEA’s 

office in October of 2018. Tr. 22. The 

pharmacist wanted to report several 

physicians that she believed were 

excessively prescribing controlled 

substances, which included the 

Respondent. This is just one way an 

investigation can begin. 

After DI looked up the Respondent in 

the DEA’s system and identified his 

DEA registration, she then accessed 

California’s Prescription Drug 

Monitoring Program (PDMP), called 

CURES, and ran a two-year CURES 

report on the Respondent’s prescribing, 

which included March 17, 2017, to 

March 19, 2019. Tr. 23. The CURES 

report showed that the Respondent had 

dispensed over 590,000 dosage units of 

schedule II to V controlled substances to 

patients, which in DI’s experience is an 

extremely high number and warranted 

further investigation. Tr. 23–24, 51–52. 

Through this further investigation, she 

discovered that the most frequent drug 

the Respondent was prescribing was 

oxycodone, of various strengths. Tr. 24, 

51.5 The next highest drug was 

hydrocodone. Tr. 25, 51. The DI 

believed that the high dosages 

warranted further investigation. Tr. 25. 

While looking through the CURES 

report, she relied on the morphine 

milligram equivalent (MME) that the 

CDC recommends for the daily dosage 

amount. Tr. 48–49. For oxycodone, it is 

currently ninety milligrams a day. Tr. 

49. When she did her review, she could 

tell without even doing calculations that 

it was going to be extremely high, 

especially for one particular patient that 

was receiving almost 200 MME of four 

different strengths of immediate relief 

oxycodone every week. She had never 

seen anything like that. Tr. 49. There is 

no standard protocol to investigate at a 

certain level of total MME, rather, 

investigations are based on various 

factors. These factors include the fact 

that a pharmacist reported the 

Respondent to the DEA, as the DEA 

relies on pharmacists or others that 

regularly fill prescriptions. Tr. 49–50. 

Other factors include where a patient 

lives, the distances a patient travelled, 

criminal history, whether the patient is 

going to various physicians, how often 

the patient is going somewhere, and if 

the same drugs are consistently being 

prescribed over and over in high 

quantities. Tr. 50–51. 

After reviewing the CURES data, she 

reviewed a ‘‘pivot table’’ she had 

created and identified the patients who 

were obtaining the most prescriptions 

for controlled substances. Tr. 25. She 

identified eight patient records to 

review, but only selected six of those to 

submit for medical review, as six was 

sufficient to obtain a meaningful 

opinion on the Respondent’s 

prescribing. Tr. 52, 53–54. Next, she 

obtained the medical records and 

medical charts of the identified patients 

to have them reviewed by a government 

expert to determine if the prescribing 

was appropriate. Tr. 25. 

She also reviewed the Respondent’s 

DEA registration, No. BW7210759, 

which identified his name and his 

business address or his registered 

address and the controlled substances 

for which he has privileges. Tr. 38. She 

discovered he became registered in 

April 2001, with an expiration date of 

May 31, 2022. She also obtained the 

history of when he initially got the 

registration, any changes to his 

registration as far as address, state 

license, updates, and renewal fees. Tr. 

38–39; GX 1.6 She looked the 

Respondent up on the internet and 

learned that he specialized in pain 

management. Tr. 51. 

On June 26, 2019, DI issued an 

administrative subpoena to the 

Respondent, which requested six 

patients’ medical records. Tr. 26–27; GX 

16. The Respondent complied with the 

subpoena within a few days by 

providing the patients’ records in a 

paper format. Tr. 27–28. 

DI issued subpoenas to pharmacies 

where the subject patients had filled 

their prescriptions according to the 

CURES report. Tr. 28. The pharmacies 

complied with the subpoenas by 

providing copies of prescriptions, which 

DI saved, and they became part of her 

investigatory file. 

DI asked Dr. Munzing if he had time 

to assist with the investigation by 

reviewing patient files. Tr. 37. She 

chose Dr. Munzing because the DEA had 

used Dr. Munzing in other 

investigations, he was therefore already 

in the system and was available. Tr. 54– 

56. DI provided to Dr. Munzing all the 

medical records for the six patients 

listed in the subpoena on a CD, as well 

as the CURES report for the Respondent. 

Within a few weeks, Dr. Munzing 

provided a report that found four of the 

six patient files were very problematic 

and that the controlled substances being 

prescribed were outside the usual 

course of legal, professional, and 

medical practice. Tr. 37–38, 56. Dr. 

Munzing did not believe these 

prescriptions were medically legitimate 

and were an extreme departure from the 

standard of care, putting the patients at 

risk for side effects including addiction, 

overdose, and/or even overdose death. 

Tr. 38. 

Dr. Timothy Munzing, M.D. 

Dr. Munzing is a licensed physician 

in California and received his first 

medical license in approximately 1983. 

Tr. 61.7 He received a Bachelor of 

Science in Biochemistry at the 

California State University at Fullerton 

and received his MD from UCLA in 

1982. Tr. 62. From 1982–1985, he 

attended Family Medicine Residency 

through the Kaiser Permanent 

Foundation Hospital, which is now 

known as the Los Angeles Medical 

Center. Tr. 62–63. He became Board 

Certified in Family Medicine in 1985 

and remains board certified. Tr. 63. He 

has been a family physician for about 

thirty five years and takes care of 

patients of all ages, from children to the 

elderly. He currently primarily takes 

care of adult patients. For the last thirtytwo years he has been the founding 

residency director of a family medicine 

residency program, where he oversees 

twenty-four residents and a fairly 

sizeable faculty. In family medicine, he 

works closely with people in every 

specialty, including Internal Medicine, 

Pediatrics, OBGYN, anesthesia, and 

pain medicine. As a family doctor, he 

sees people for chronic pain as well as 

for high blood pressure, diabetes, and 

weight issues; he manages all of their 

conditions, sometimes seeking a subspecialist, when needed. Tr. 319–20. 

Dr. Munzing also sits on the National 

ACGME Family Medicine Review 


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8Without objection from the Respondent, the 

Tribunal qualified Dr. Munzing as an expert in pain 

management and also for presenting an expert 

opinion related to the standard of care for 

prescribing controlled substances in California. Tr. 

76–77. 

Committee, as one of twelve individuals 

that accredits the 600-plus Family 

Medicine Residency Programs in 

America, as well as the fellowships 

under Family Medicine which includes 

Geriatrics, Addiction Medicine, and 

others. Tr. 63–64. He has been a Medical 

Expert Consultant for the Medical Board 

of California, also known as the Health 

Quality Investigation Unit for 

approximately sixteen-years. Tr. 64. He 

currently holds a DEA COR and 

maintains a clinical practice. Tr. 64. He 

typically spends about twenty-five to 

thirty percent of his time performing 

clinical work, including seeing patients 

in the residency office or at after-hours 

clinics or urgent care, and working as a 

preceptor. Tr. 64–65, 75–76; 315. When 

it is indicated and appropriate, Dr. 

Munzing prescribes controlled 

substances, such as opioid medications, 

benzodiazepines, sleeping medications, 

medications with codeine, and others. 

Tr. 65. He has treated and provided 

ongoing medical treatment to thousands 

of patients for acute and chronic pain 

throughout this career. Tr. 65. He 

treated patients in continuity for 

approximately thirty-years and only 

stopped this practice in approximately 

2016 because he was asked to help 

develop the Kaiser Permanente School 

of Medicine, now called the Bernard J. 

Tyson School of Medicine. He no longer 

works at this medical school. Tr. 66; 

315–16. He primarily works in the 

Orange County area at the Anaheim 

Hospital. Tr. 65–66, 76. There are no 

pain management specialists on cite at 

the Santa Ana office. Tr. 317–18. 

In the course of his professional 

career, he has been called upon to 

provide opinions about the 

professionalism of physicians and the 

regulation of the practice of medicine. 

Tr. 66. In approximately his third year 

of practice, he was elected President of 

the medical staff and was responsible 

for overseeing professionalism. He was 

also on the Quality Improvement 

Committee and as a residency director 

he is essentially the person ultimately 

responsible for the quality and 

professionalism of the twenty-four 

residents and faculty. Tr. 66–67. He also 

precepts residents in their first, second, 

or third year of residency; Dr. Munzing 

is ultimately responsible for those 

patients and must review and 

countersign those records. Tr. 76. 

During his career, he has also sat on 

some national organizations for Family 

Medicine and Multi-disciplinary care 

including other specialties, reviewing 

professionalism. Tr. 67. 

For approximately sixteen years, he 

has provided opinions in approximately 

100 cases regarding professional 

physicians and the regulation of the 

practice of medicine regarding 

prescribing practices, as an expert for 

the Medical Board of California. Tr. 68, 

342. For approximately the last six and 

a half years, he has provided opinions 

for a number of federal agencies 

including the DEA, Federal Bureau of 

Investigation (FBI), and the Department 

of Justice. Tr. 67, 341, 454. All of the 

cases with the federal agencies involved 

opiate and other controlled substance 

prescribing. Tr. 68. For Medical Board 

cases he charges $200 an hour and for 

the DEA, FBI, and DOJ, he charges $400 

an hour for his expert work. Tr. 343–44. 

He has been qualified as a medical 

expert in legal proceedings to opine on 

the standard of care for the legitimate 

use of opioids to treat pain 

approximately thirty-times. He has also 

been qualified as a medical expert in 

legal proceedings to opine on whether 

prescriptions were issued with a 

legitimate medical purpose in the usual 

course of professional practice ‘‘many 

times.’’ Tr. 67–68. [Dr. Munzing was 

qualified in this matter as ‘‘an expert in 

pain management’’ and in the ‘‘standard 

of care for prescribing controlled 

substances in California.’’ Tr. 77.] 

According to Dr. Munzing, the 

standard of care is what a reasonable, 

prudent physician would do under the 

same or similar circumstances. Tr. 328. 

The standard of care generally allows 

for alternative means of diagnosis, and 

of treatment amongst reasonably 

competent, prudent physicians. Tr. 384. 

Within the field of pain management, 

there are accepted alternative judgments 

about what would be reasonable and 

prudent, or what would be included in 

a careful pain management plan. An 

exercise of judgment within the scope of 

the standard of care, can vary between 

reasonably prudent, careful physicians. 

Tr. 385. In fact, some physicians may 

have not chosen to even try to treat 

these four patients in this case. 

Dr. Munzing became familiar with the 

standard of care for prescribing 

controlled substances in California 

through practicing in California and 

prescribing controlled substances and 

also by being a physician leader in 

California which required he be 

responsible for overseeing the quality, 

and standard, of care. Tr. 68–69. There 

are guides which inform the standard of 

care in California, including the Guide 

to the Laws Governing the Practice of 

Medicine by Physicians and Surgeons, 

which applies to both primary care and 

specialty care physicians. Tr. 70; GX 3. 

Dr. Munzing has reviewed the Guide 

to the Laws Governing the Practice of 

Medicine by Physicians and Surgeons 

many times. Tr. 70–73. He has also 

studied the Guidelines for Prescribing 

Controlled Substances for Pain, as a 

clinician, physician leader, and a 

medical expert. Tr. 73. Dr. Munzing 

noted both documents inform the 

standard of care in California for 

prescribing controlled substances for 

pain. Based on his education and 

professional experience, he believes he 

can determine whether controlled 

substances are issued in the usual 

course of professional practice in 

California. Tr. 74.8

The Medical Board guidelines and 

Government Exhibits 3 and 4 lay out 

many of the guidelines that contribute 

to the standard of care; the guidelines 

pertain to both primary care physicians 

as well as physicians managing pain, 

regardless of specialty. Tr. 77–78, 82– 

83, 336; GX 3, 4. The standard of care 

is what a knowledgeable, reasonable 

physician would do if given the same 

set of circumstances. Tr. 82. 

For each patient, the first thing a 

provider should do is take a history and 

perform an examination. Tr. 79, 83; GX 

3, at 59. Depending on the specific 

complaint, the provider must evaluate 

the patient to decide if any other 

information is needed through 

laboratory tests, imaging studies, or 

other studies and make either a specific 

assessment diagnoses or likely 

diagnoses. The provider then does a risk 

stratification of the patient and 

determined what other medication 

problems he might have and how the 

provider may manage them. The 

provider then develops a management 

plan specific to his evaluation. If the 

plan includes controlled substances 

prescribing or other potentially 

dangerous treatments needing informed 

consent, the provider tells the patient 

the benefits and risks. Tr. 79–80. Once 

a provider starts managing the patient, 

he monitors them on a periodic, regular 

basis. Tr. 80. The specifics depend on 

the patient. The provider decides if he 

needs additional referrals or 

consultation in general. The provider 

should try to minimize the risk and 

maximize the benefits of treatment. All 

of these things should be documented in 

detail so that the provider and any 

future person managing the patient or 

reviewing the care can look at the 

documentation and get a detailed, 

truthful understanding about how the 

patient was on a particular date and 

what the reasoning was behind the 

management of that patient. Tr. 81. 


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9According to Dr. Munzing, it has been shown 

that managing mental health issues appropriately is 

often a significant tool in decreasing the chronic 

pain one needs to manage. Tr. 94–95. 

In continuing care situations for 

chronic pain management, a physician 

and surgeon should have a more 

extensive evaluation of the history, past 

treatment, diagnostic tests, and physical 

exams. Tr. 83, GX 3, at 59. When 

looking at chronic pain, it is not about 

someone who just twisted an ankle an 

hour ago with no other pain history. Tr. 

83. Instead, a provider should know 

more about the patient and the 

chronicity, i.e. how did it start, how 

long has someone had it, what methods 

were used before, and what limitations 

the pain imposes. Tr. 83–84. Therefore, 

getting a detailed current assessment 

and history to find out what imaging 

studies, treatments, or physical 

therapies were performed and what 

medications were used is helpful for 

putting the patient’s treatment in 

context. Tr. 84. There is also a lot of 

crossover between chronic pain and 

addictive issues [so a drug and alcohol 

history is needed]. Also, a mental health 

history is important to get including 

anxiety, depression, bipolar disease, 

ADD, etc. Tr. 85. It is also important to 

put the pain in context of who the 

patient is, because the provider’s pain 

management may vary dramatically 

depending on the health or lack of 

health of the patient. Tr. 85. 

A physician/surgeon should discuss 

the risks and benefits of the use of 

controlled substances and other 

treatment modalities with the patient, 

caregiver, or guardian. Tr. 85, 456; GX 

at 60. Again, the patient needs to 

understand the potential benefits, and 

the potential risks, as well as available 

alternatives. Tr. 85–86, 460. [According 

to Dr. Munzing, ‘‘this all has to be well 

documented in their records.’’ Tr. 87.] 

He further testified that, ‘‘MME studies 

show that at 100, the risk of overdose 

[for a patient] goes up about 8.9-fold and 

the risk of overdose death is increased.’’ 

Tr. 86. When an individual is on a 

combination of an opiate and a 

benzodiazepine, the increased risk of 

overdose death goes up tenfold. There is 

also a significant risk for addiction in 

patients that are on only moderate doses 

of opiates and benzodiazepines. Tr. 86. 

Periodic review means the patient 

needs to be seen on a periodic basis. Tr. 

86–87. The frequency of visits is often 

driven by the circumstances: The 

severity of pain, the level of medication, 

and the potential risk for side effects. So 

an ongoing monitoring would include 

getting vital signs, blood pressure, heart 

rate, respiratory rate, and performing an 

exam on the pertinent area on a regular 

basis or at every appointment. Tr. 87. 

The provider should also check CURES 

and periodically issue urine drug tests 

to ensure that the patient is taking what 

is being prescribed and not taking what 

is not being prescribed. [According to 

Dr. Munzing, periodic review also 

encompasses ‘‘periodically reviewing 

the patient and constantly trying to 

assess their risk and whenever possible, 

try[ing] to . . . mitigate the risk by 

either bringing the dosage of 

medications down, using alternative 

strategies, [so] they can still benefit the 

patient but try to mitigate the risk.’’ Tr. 

87–88.] 

In the event a doctor is unable to 

mitigate risks, and instead of tapering 

medications he decides to increase a 

patient’s dosage of controlled 

substances, the doctor must welldocument why the increase is necessary 

despite the increased risk and also note 

that the patient has been informed of the 

higher risk. Tr. 88. It is important to 

keep accurate and complete records 

when managing a patient, so a provider 

can look back and see how the patient 

was at a particular time. Tr. 88–89; GX 

3 at 61. Equally important is, if the 

patient sees another provider for 

whatever reason, that other provider 

sees the justification for the patient’s 

prescription and knows that the patient 

is aware of the risks and accepts those 

risks. Tr. 89. [According to Dr. Munzing, 

documentation, ‘‘bottom line[,] is a 

patient safety issue.’’ Tr. 88.] 

To meet the standard of care in 

California, a provider must ensure that 

the medical history, examination, other 

evaluations, treatment plans, objectives, 

informed consent, treatments, 

medications, rationale, and agreement 

with the patient are well-documented in 

the medical records. Tr. 89–90. 

The Medical Board of California also 

uses the Guidelines for Prescribing 

Controlled Substances for Pain in 

determining the standard of care for 

prescribing controlled substances in the 

State of California for physicians and 

other prescribers. Tr. 70, 73, 90–91; GX 

4. These guidelines inform a provider’s 

standard of care by laying out the 

specifics on what needs to be done. Tr. 

91. The standard of care requires 

checking CURES for managing chronic 

pain, which the Respondent did with 

the four patients in this case. Tr. 91, 

337, 360. The guidelines also require 

drug testing. The Respondent did urine 

drug screens on a frequent basis. Tr. 

338. These guidelines are relevant for 

evaluating the Respondent’s treatment 

of patients within the standard of care 

in California. 

There is an increased risk of overdose 

death and overdoses when 

benzodiazepines and opioids are coprescribed. Tr. 92. In 2016, the Center 

for Disease Control and Prevention 

(CDC) highlighted the risk of coprescribing these controlled substances 

and the Food and Drug Administration 

(FDA) came out with a black box 

warning highlighting the risk of 

combining these two medications. 

Whenever possible, a provider should 

titrate down the benzodiazepine and if 

a provider is unable to do that, he 

should taper the opioid medications; coprescribing these medications is 

‘‘significantly increasingly risky.’’ Tr. 

93. 

The Patient Evaluation and Risk 

Stratification requirement addresses: 

The importance of completing a medical 

history and physical examination, 

performing a psychological examination 

for patients with long-term chronic 

opioid use for noncancerous pain, and 

provides examples of screening tools for 

mental health or potential addiction 

issues. Tr. 93–94; GX 4 at 12–13. Risk 

stratification is broken down into two 

components: (1) The risk of potential 

addiction or substance use disorder; 9

and (2) risk stratification as far as the 

overall health and well-being of the 

patient. Tr. 94. If a patient has other 

underlying conditions besides chronic 

pain that need to be dealt with, those 

need to be listed in the medical record 

as a provider is managing a patient as 

a whole person. Tr. 95. It is also 

important as it relates to informed 

consent, because the risk to a patient 

may be much higher if the patient has 

other chronic medical problems. Tr. 95– 

96. 

‘‘Ongoing Patient Assessment’’ or 

‘‘monitoring’’ involves following 

patients whose conditions are dynamic 

and have varying degrees of pain over 

time. Tr. 96; GX 4 at 17. A provider 

should also check CURES, perform 

point-of-care testing by checking urine 

screen for consistency, and may perform 

pill counts or other ways of monitoring. 

Tr. 97–98. There is also a confirmatory 

urine test that is much more extensive 

that looks in much finer detail at 

medications both prescribed and illegal. 

However, these tests are not always 

accurate. Tr. 98. The frequency of these 

drugs screens based on the standard of 

care in California is determined on risk 

stratification. Tr. 99. Different 

organizations contribute to this opinion, 

including the American Academy of 

Pain Medicine and the Agency Medical 

Directors Group in Washington State. 

The CDC generally recommends doing 

urine screens approximately quarterly 

when the MME is over 90 or 100. Some 

suggest as often as once a month, while 


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*E [Text relocated for clarity.] Dr. Munzing noted 

there is a condition called Opioid-Induced 

Hyperalgesia, where higher doses of opioid 

medications may increase pain rather than decrease 

pain or may increase a patient’s sensitivity to pain. 

Tr. 109. 

10 Dr. Munzing noted that the CDC guideline was 

primarily for primary care physicians so his 

opinion in this proceeding did not completely rely 

on a strict adherence to the CDC guidelines. Tr. 

110–11, 334; GX 5. Furthermore, the CDC 

guidelines are simply guidelines and not absolute 

mandates. Tr. 111. 

11 Dr. Munzing noted that such patients are 

relatively rare. Tr. 313–14. 

others maintain that if there are no 

inconsistencies or aberrances, quarterly 

is fine. If there are any aberrances that 

are unexplained, then the provider 

needs to strongly document why he is 

considering continuing prescribing at 

the same level, and that there was a 

strong consideration of trying to bring 

the medication level down. Tr. 99–100. 

Requiring more urine screens would not 

exceed the standard of care, but rather 

just meets the standard of care for that 

element. Tr. 100. 

There are certain things that would 

drive a provider to taper to a lower, 

safer dosage, including the level of 

MMEs. Tr. 102; GX 4 at 20. A provider 

looks at intolerable side effects, if there 

is a failure to comply with the pain 

management agreement, or if there are 

aberrancies showing up that are not 

explained. A provider should also look 

at the overall risk of the treatment. Tr. 

102–03. It is necessary to maintain 

accurate and adequate medical records 

from both a legal standpoint as well as 

a patient quality standpoint. Tr. 103; GX 

4 at 22. 

The CDC issued a fact sheet that gives 

instructions regarding conversion 

factors for calculating MMEs, which Dr. 

Munzing used in informing his opinion 

on the standard of care and usual course 

of professional practice in California. Tr. 

104–06; GX 5. There is no maximum 

MME that a provider can prescribe 

because every patient is different; a 

provider needs to look at whether an 

opiate is appropriate and what dosing is 

appropriate. Tr. 106. However, the CDC 

and others recommend that providers 

try not to exceed 90 MME per day. Tr. 

107. Although there is no absolute that 

one can never exceed, the provider 

should try to reduce the risk; and if a 

provider is exceeding 90 MME, the 

provider should provide documented 

justification for the dosage and 

document the patient’s informed 

consent of the risk. Tr. 107–08; GX 5. 

If a patient presents to a new doctor 

after having already prescribed at a 

dosage higher than 90 MME, the new 

doctor should perform a thorough 

history, examination evaluation, and 

whenever possible should get prior 

medical records to put the prescribing 

into context and confirm that the patient 

is really being prescribed that dosage. 

Tr. 108. The doctor should also look at 

urine drug tests, CURES, and the PDMP. 

If the doctor confirms that the patient is 

indeed taking that high dosage, the 

doctor should evaluate whether that 

high dose it is still appropriate at that 

time and look at the overall risk, 

including whether alternatives are 

available.*E Tr. 108–09. A doctor should 

then decide if he is able to reduce the 

medication of the patient slowly, while 

also incorporating other pain 

management strategies that will 

hopefully decrease the risk to the 

patient. Simply keeping the patient on 

the high MME because he was 

prescribed it before does not meet the 

standard of care in California. 

Continuing high dosages of opioids and 

controlled substance medications puts a 

patient at risk; not having side effects in 

the present does not prevent a patient 

from having problems with the higher 

dosage in the future. Tr. 109–10.10

The FDA document providing the 

black box warning describing the risks 

when combining opiate pain medication 

and benzodiazepines contributed to Dr. 

Munzing’s opinion in the instant case as 

it relates to the standard of care and 

usual course of professional practice in 

California for prescribing controlled 

substances for the treatment of pain. Tr. 

113–14; GX 6. There is a serious 

increase in risk and potential death 

when combining opiates and 

benzodiazepines, and a doctor should 

try to avoid this combination whenever 

possible whether he is a primary care 

physician or a pain specialist. Tr. 114– 

15; GX 6. 

In general, pain patients may not take 

their pain medications as prescribed, 

but the pain contract dictates how 

patients should take their medication. If 

they are not taking them as prescribed, 

the provider needs to discuss the 

resulting risks with them. Tr. 411. 

A fast metabolizer is a patient whose 

body may metabolize a certain 

medication faster than others so it may 

potentially not remain in the patient’s 

system as long as it might in someone 

else’s. Tr. 310.11 This would require 

dosages to be divided more throughout 

the day, using the same quantity of the 

drug, but dividing the doses more 

frequently throughout the day. The 

standard of care for such patients 

requires documentation specifically 

identifying that a fast metabolism is the 

reason for any aberrant drug screens, 

because there are many possibilities 

why a urine drug screen can be 

negative. Tr. 310–11. A doctor has 

several options when resolving aberrant 

drug screens including actually 

querying the patient, doing random pill 

counts, doing more randomized drug 

screens, and recording the last time a 

medication was taken. Tr. 312. As to all 

the patients, there is no evidence in the 

record that the Respondent took any of 

these approaches. Tr. 312–13. Although 

the Respondent may have discussed the 

risks of combining benzodiazepines and 

opiates, there was no informed consent 

in the record. Tr. 415–17. 

General Patient Discussion 

According to Dr. Munzing, a legacy 

patient is a patient that comes from 

another provider or a patient whom a 

doctor has been following for quite 

some time who comes in for a certain 

treatment. Tr. 325–26. It could be within 

the standard of care to keep a patient on 

the medications he was prescribed by a 

previous provider if the current doctor 

has done an appropriate, independent 

evaluation and concludes that what was 

previously prescribed is reasonable, 

indicated, and medically justified. Tr. 

326–28. 

Vitals should be taken during each 

and every visit when patients are on a 

very high dose of opioids because they 

are at a greater risk. This is true even if 

the visits are one day after each other 

because patients vary day-by-day. Tr. 

331–32. Despite the fact that there are 

no written guidelines that require this, 

Tr. 338–39, Dr. Munzing based his 

opinion on discussions with providers 

who focus on pain management and 

other specialties, as well as on 

information obtained at trainings and 

lectures. There is no maximum MME 

because a doctor needs to make 

prescribing decisions within context of 

each individual patient; prescribing 

could be a little bit higher than 90 MME 

depending on the patient. Tr. 332–33. 

Dr. Munzing stated that he is ‘‘here to 

help protect patients [by] . . . looking at 

the standard of care, looking at the 

dosage of medications, looking at the 

areas of informed consent, of aberrant 

urine drug tests, or documentation.

. . .’’ Tr. 341. 

According to Dr. Munzing, when a 

patient reports that his pain is staying 

at a five on a scale of one-to-ten, that 

does not necessarily indicate that the 

treatment plan is working. The provider 

must look at the complete context of 

that patient and look at the risk and 

potential benefits. Tr. 354. However, if 

the pain number has come down 

significantly and the patient’s function 

has significantly improved, then a 

patient may have stabilized at that 


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12When questioned on cross examination, Dr. 

Munzing stated that if it appeared that he received 

insufficient records, he could ask the DEA whether 

there are additional records available. Tr. 325. He 

also explained that for the patients not discussed 

at this hearing, he had done a high level analysis 

of the CURES report data and did not notify the 

DEA that he had concerns about patient safety 

regarding the other patients based on what the DEA 

had asked him to review. Tr. 388–90. 

dosage. Tr. 355. One or more of the 

patients’ records infrequently 

mentioned that their activities of daily 

living and their ability to function on a 

daily level was pretty good for them, 

which could be seen as a potential 

benefit of the treatment. But this does 

not necessarily mean that the patient is 

on the right dosage and the provider 

still needs to assess the potential risk. 

Tr. 355–56. A doctor also needs to 

review where a patient was before 

prescribing and where he is now, and 

whether there is potential for continued 

improvement while simultaneously 

trying to mitigate the risk. Tr. 356–57. 

It is typical for pain to fluctuate in 

chronic pain patients who have good 

days and bad days; but patients who are 

reporting pain at a seven or eight, after 

having initially reported pain at an eight 

or a nine, have only minimally changed. 

This scenario would not be considered 

a success because this is only a slight 

improvement at the cost of a significant 

risk. Tr. 358–59. 

If one does not document something 

and there is no way to verify it, then you 

cannot infer that it has happened. Tr. 

406. Although there may be ways to 

secondarily find that something was 

done; [for example, if a physician says 

they ordered imaging but did not 

document the imaging, imaging results 

in the medical record could verify that 

the imaging was ordered.] Id. However, 

the State of California has stated that a 

doctor not only needs to prescribe 

Narcan or Naloxone, but also needs to 

educate the patient, and both need to be 

documented. Tr. 407. [Accordingly, Dr. 

Munzing could not infer that a patient 

was educated regarding Narcan based 

solely on the fact that the patient 

received a Narcan prescription. Tr. 405.] 

Dr. Munzing was provided materials 

to review relating to the Respondent’s 

prescribing of controlled substances 

including medical records and CURES 

information for six patients that 

spanned approximately three-and-halfyears. Tr. 116–17, 385–87.12 He may 

have spent approximately fifty-to-sixty 

hours reviewing these records prior to 

providing his opinion to the DI. Tr. 342. 

He concluded that the prescribing for 

two of the patients he was initially 

presented with was consistent with the 

standard of care. Tr. 116. He did 

conclude, however, that the controlled 

substances prescribed to J.K., D.P., P.S., 

and D.L. were not medically justified as 

prescribed, and were beneath the 

standard of care in California and 

outside the usual course of professional 

medical practice as prescribed. Tr. 117. 

Overall, Dr. Munzing generally 

reached this conclusion based on 

several factors, including the high 

morphine milligram equivalent, with 

one patient’s prescriptions being as high 

as 6,000 MMEs, which is the highest he 

has ever seen. Tr. 117–18. The patient 

histories were also limited with little to 

no mental health history and the use or 

aberrant use of drugs and alcohol was 

typically not listed in significant detail. 

Tr. 118. The examination was absent 

from the medical records; examinations 

were sometimes performed fifty-percent 

of the time and sometimes less. Two or 

more vital signs were not frequently 

obtained, oftentimes less than fiftypercent of the time. Tr. 118–19. Urine 

screens were typically ordered for 

patients on the first visit and were done 

as many as two or three times per 

month, using much more costly 

confirmatory tests. Tr. 119, 359–60. 

Furthermore, urine drug tests for three 

of the four patients had aberrant or even 

inconsistent values. Resolution of those 

aberrancies were not typically 

documented in the medical records, yet 

the Respondent continued to prescribe 

the medications. There were a whole 

host of things that were concerning, 

including patients continuing on very 

high dosages of medications and three 

of the four patients actually had their 

dosage increased over time. After 

reviewing the records, Dr. Munzing did 

believe that all four patients were likely 

in pain and were not ‘‘tricking or faking 

their pain.’’ Tr. 120, 419. 

Dr. Munzing further noted that some 

of the patients received Narcan or some 

other form of opioid reversal 

medication. Dr. Munzing noted that it 

was possible that the Respondent had a 

discussion with his patients regarding 

why the Narcan was being given—that 

a person could overdose from being 

prescribed certain medications and this 

opioid reversal medication could 

prevent them from dying. Tr. 364–65. 

However there is no evidence in the 

records that this was discussed. Tr. 366– 

67. J.K., D.L., and P.S. had a number of 

aberrant drug screens. Tr. 309–10. 

Overall, it was within the standard of 

care for the Respondent to attempt to 

pursue a treatment plan with these 

patients after verifying the pain in some 

way through studies, etc. Tr. 419–20. 

The Respondent reported he tried 

alternative methods to opioids, 

including prescribing gabapentin or 

neuropathic medication, electrical 

analgesia, and injections, which Dr. 

Munzing said were reasonable for the 

Respondent to pursue at the time. Tr. 

351–52. With most, if not all of the four 

patients, the Respondent either ordered 

tests or attempted to order tests, and on 

occasion he made efforts to refer 

patients to specialists. Tr. 353. Dr. 

Munzing agreed that this is not a case 

of a doctor just giving patients pills to 

control their pain. Tr. 353–54. 

Patient D.P. 

A Controlled Substance Agreement is 

separate from an informed consent. An 

informed consent may be added to a 

Controlled Substance Agreement. Tr. 

120–21.; GX 8 at 239. The Controlled 

Substance Prescription Agreement for 

Patient D.P., dated April 5, 2017, is 

adequate as a controlled substances 

prescription agreement, but is not 

adequate as an informed consent 

because it does not lay out for the 

patient that he/she is at a much higher 

risk of addiction, overdose, and death. 

Tr. 121–22, 458. This missing 

information and lack of informed 

consent contributed to Dr. Munzing’s 

opinion that the opioid prescriptions 

were outside the usual course of 

professional practice. Tr. 122–23. 

D.P. was a complex patient. Tr. 321. 

As to D.P.’s medical record regarding 

evaluation and monitoring, the medical 

record shows frequent, expensive urine 

tests occurring approximately three 

times a month; this was unnecessary 

because the patient was fairly consistent 

in showing that he was taking the 

prescribed medication. Tr. 123. As 

discussed previously, doing testing 

more often than required is not 

necessarily a good thing and does not 

mean that a doctor is exceeding the 

standard of care. Based on CURES, D.P. 

was receiving an exceedingly high MME 

dose and high number of pills 

(approximately 160 tablets per day) over 

long periods of time that were refilled 

on a weekly basis. Tr. 123–24. Dr. 

Munzing has never seen a patient get 

anywhere near that number of tablets 

per day. Tr. 123. Over the course of 

three years, the patient’s prescriptions 

‘‘bounce[d] up and down,’’ between 

approximately 3,500 to 6,000 MME. Tr. 

124, 428. D.P. was receiving somewhere 

around 1.4 million milligram dosage 

units per year, sometimes higher than 

that, which was the highest Dr. Munzing 

has ever seen. Tr. 119–20. 

D.P. then appeared to receive 

treatment at Pain Management, UC San 

Diego where the amount dropped to 

2,700 MME and the patient was then in 

and out of the hospital for very serious 

medical problems unrelated to the pain 

including a heart attack and kidney 


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*FThe Government seems to have offered this 

evidence as an example of what prescribing and 

documenting within the standard of care for D.P. 

could have looked like. However, this information 

is not material to my decision. I also note that I am 

not holding Respondent accountable for any actions 

other than his own. 

13 [Footnote text moved to the body of the 

decision.] 

failure. He began working with other 

pain management providers and was 

taken down to 1,000 MME and tapered 

down. Tr. 124. He was most recently in 

the 700 range and was continuing to 

taper down.* F

Overall, the Respondent’s 

documentation for D.P. was ‘‘pretty 

poor’’ without additional information, it 

did not reflect adequate attempts to 

mitigate symptoms or risk over time and 

did not meet the standard of care. Tr. 

125. Furthermore, the medical records 

show that vital signs were taken at fewer 

than fifteen-to-twenty percent of the 

total visits. Tr. 125, 137. Many of the 

visits lack documented vital signs and a 

musculoskeletal exam, which is outside 

the standard of care in California for a 

doctor who is managing patients at 

incredibly high dosages. Furthermore, 

Dr. Munzing opined, the documentation 

was far below what was necessary and 

did not justify the incredibly high 

dosing. Tr. 126. 

Comparing the documentation from 

the Respondent to UC San Diego, it was 

like ‘‘night and day’’ and D.P.’s pain 

score was not ‘‘all that different’’ despite 

the fact that D.P. went down from 6,000 

to 1,000 MME. Tr. 126–27. The 

Respondent’s records do not reflect that 

D.P.’s pain scores and functional level 

improved when he was on the highest 

dosages of opiates, which Dr. Munzing 

would expect to see. Tr. 127. There is 

a ‘‘great difference’’ between the 

Respondent’s records and those 

provided by UC San Diego and the other 

pain management group. The 

Respondent did not provide records of 

treatment prior to him establishing care 

with D.P., which is ‘‘vitally important’’ 

as it relates to the standard of care. Tr. 

127–28. 

There were four prescriptions written 

by Respondent for D.P. on April 18, 

2017, to be filled on April 26, 2017; all 

were for Oxycodone but in four different 

strengths. Tr. 129; GX 9 at 2. Between 

the four prescriptions D.P. was 

prescribed 160 tablets of Oxycodone per 

day. Tr. 130. Dr. Munzing calculated 

that the MME for one of the 

prescriptions alone was 1,200 MME. For 

all four Oxycodone prescriptions, the 

total MME was 4,500, which is 

astronomical and the highest dosage Dr. 

Munzing has reviewed, including his 

review of approximately 150 overdose 

deaths. Tr. 132, 135. There are also 

medical records dated April 12, 2017, 

that provide only a minimal level of 

investigation, with no vital signs or 

examination listed; therein Respondent 

prescribed additional medication, 

despite there being no justification to do 

so. Tr. 132–34; GX 8; 246–253. On April 

19, 2017, Respondent wrote four 

prescriptions identical to the four 

written on April 18, 2017, to be filled 

on April 19, 2017. GX 9, at 3. It is highly 

unusual that these two prescriptions 

were issued to be filled only one week 

apart, but the Respondent repeatedly 

prescribes medications over long 

periods of time on a weekly basis. Tr. 

134–35. Dr. Munzing had the same 

issues with the prescriptions issued on 

April 19, 2017, and found that they 

were not issued in the usual course of 

professional practice or for a legitimate 

medical purpose. Tr. 135. The 

Respondent continuously prescribed a 

combination of 280 tablets of oxycodone 

10 milligram, 180 tablets of oxycodone 

15 milligram, 280 tablets of oxycodone 

20 milligram, and 280 tablets of 

oxycodone 30 milligram between March 

17, 2017, and January 3, 2018. Tr. 136. 

Rather than tapering, as required by the 

standard of care, D.P.’s records shows 

that Respondent periodically added a 

prescription for oxymorphone, so 

episodically the MMEs went from 4,500 

to 5,100 as the Respondent increased 

D.P.’s dosage. Tr. 136–37. [Dr. Munzing 

said that there was no justification in 

the record for the oxymorphone 

prescriptions and they were also outside 

the standard of care. Tr. 137.] 

Furthermore, vital signs were taken 

infrequently, which puts a patient at a 

high risk; checking blood pressure is 

important to ensure the blood pressure 

is not too low or too high, and checking 

the respiratory rate is important because 

the medications are respiratory 

depressants. Tr. 137–38. Furthermore, 

on July 3, 2017, the Respondent added 

Opana as an additional opioid 

prescription that is long-acting, which 

increases the MME and therefore the 

risk to the patient. Tr. 139; GX 8 at 372. 

Any added benefit of this prescription 

would be minimal as D.P. was already 

on an astronomically high dose and 

there was no documented reason why 

this was added as a prescription. Tr. 

140–41. Furthermore, D.P.’s pain level 

was listed as a ‘‘5,’’ which would have 

made this a great opportunity to start 

reducing the pain medication. Tr. 141– 

42. Overall, the Respondent failed to 

provide adequate justification for why 

D.P. was prescribed such a high level of 

MME.13 Tr. 142 

Dr. Munzing continued to review the 

Government’s exhibits and explained 

how each prescription did not meet the 

standard of care for patient D.P. Tr. 142– 

177. [Dr. Munzing opined that each of 

the relevant prescriptions to D.P. were 

issued outside the usual course of 

professional practice and without a 

legitimate medical purpose. Tr. 146–47, 

149, 151–52, 154, 157, 159, 161, 177. He 

testified in support of that opinion that: 

Vital signs were not taken and physical 

examinations were not performed, Tr. 

145, 148, 150, 153; the MME bounced 

up and down but was always ‘‘in the 

[high] stratosphere’’ without obtaining 

informed consent or informing the 

patient of the risks, Tr. 145, 158–59, 

163, 171; and there was no plan for 

tapering medications or assessing 

withdrawal when the dosages 

decreased, and there was insufficient 

justification in the record when the 

dosages increased. Tr. 146, 148, 150, 

152, 156, 172. Dr. Munzing also noted 

that there is a gap in the medical records 

between June 25, 2019, and September 

30, 2019, but that prescribing continued 

during that time. He testified, ‘‘these are 

astronomically high levels [of controlled 

substances] and it’s certainly not based 

on sufficient justification, not usual 

professional practice, and now there’s a 

big gap, but the prescribing continued. 

So I have very significant concerns 

about that . . . [and the patient] ended 

up being admitted to the hospital on 

multiple occasions and multiple ER 

visits, starting in late 2019 and going 

through the early parts of 2020.’’ Tr. 

162–63.] 

It appears that D.P. went to a detox 

facility in September 2019, and his 

MME was decreased to 60 or 65; there 

was some discussion in a note from the 

Respondent that he would not prescribe 

above 90 MME per day going forward. 

Tr. 164, 433–34. Dr. Munzing clarified 

that the detox process (which was not 

performed by Respondent) was not 

particularly relevant to his case or his 

opinions regarding Respondent. Tr. 164. 

[Summarizing his opinion of 

Respondent’s prescribing to D.P., Dr. 

Munzing testified that each of the 

prescriptions captured in the 

stipulations were issued without a 

legitimate medical purpose and were 

outside the usual course of professional 

practice. Tr. 177. Dr. Munzing further 

testified that the prescribing ‘‘was 

incredibly dangerous. The patient is 

lucky to be alive. It certainly was not 

[within the] standard of care. The way 

he prescribed the dosages, the MMEs, 

were certainly not medically justified 

and not usual professional practice.’’ Tr. 

176.] 


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14The Tribunal later learned that this is the 

Respondent’s nurse practitioner. The Respondent is 

responsible for his mid-level and lower-level 

employees. Tr. 220–21, 272. On cross examination, 

Dr. Munzing elaborated that in California, nurse 

practitioners are able to see patients, but the 

Respondent would still be responsible for the 

overall management of the patient as he continued 

with the patient’s care. Tr. 350–51. 

*G Text omitted for clarity. 

15 Dr. Munzing acknowledged that the 

Respondent had some challenges getting a 

psychiatrist or psychology to actually see the 

patient. Tr. 366–97; GX 10 at 1238–44. 

16On cross examination Dr. Munzing said it 

could be possible that this print out may include 

errors. Tr. 346, 347. However, Dr. Munzing also 

stated that in his work as an expert, he does not 

recall ever seeing an issue with an EMR that 

resulted in a case printing things from the future. 

Tr. 348–49. 

17The Respondent documented that there was no 

aberrant drug screen on this day. Tr. 198. 

Patient P.S. 

In reviewing P.S.’s file, Dr. Munzing 

did not find any documented discussion 

regarding the specific risks of opioids, 

including addiction, overdose, or death, 

and opined that the lack of 

documentation violated the standard of 

care. Tr. 178; but see, Tr. 390–91 (a note 

relating to a visit from January 25, 2018, 

stating generally that the Respondent 

discussed the risks with P.S. regarding 

the use of opiates and benzodiazepines 

and mentions respiratory distress). 

On almost every occasion during the 

relevant period, P.S. was prescribed an 

opioid and a benzodiazepine, a 

combination that falls under the FDA 

warning. Tr. 177–78. Dr. Munzing 

explained that, curiously, a progress 

note dated January 9, 2017, mentions 

that on May 31, 2019, R.R–G. 

‘‘discussed that benzodiazepines should 

not be taken concomitantly with pain 

medications due to an increased risk of 

respiratory depression.’’ Tr. 179. The 

patient was reportedly advised ‘‘not to 

take both prescriptions at the same 

time,’’ and there was a plan to taper 

down alprazolam or Xanax.’’ Id. Tr. 179; 

GX 10 at 4. This warning was repeated 

word for word on several occasions 

going into the future, but the patient 

was not really tapered down. Tr. 181. 

Patient P.S. was switched from 1 

milligram of lorazepam to half a 

milligram of alprazolam; this is not 

considered a dramatic tapering, and 

there is no documentation stating why 

this medication change was made. Tr. 

179–81, 193. Furthermore, comparing 

the two prescriptions is like comparing 

apples and oranges as there is no 

definitive data that supports or refutes 

whether one is more or less risky than 

the other. Tr. 371–72. Although the 

patient notes demonstrate that ‘‘R.R– 

G.’’ 14 had a discussion with the patient 

regarding respiratory depression, Dr. 

Munzing opined that the records did not 

adequately document informed consent 

because there is no indication that 

anyone discussed the specific risks of 

addiction, overdose, and death. Tr. 182; 

GX 10. The questionable date of the 

entry, and the lack of documentation 

regarding informed consent contributes 

to Dr. Munzing’s opinion that those 

prescriptions to P.S. were issued outside 

the usual course of professional 

practice.*G Tr. 183, 374. 

According to Dr. Munzing, the 

Respondent only took vital signs 

approximately fifty-percent of the time 

and failed to perform proper 

musculoskeletal exams. Tr. 183. The 

records also fail to provide an adequate 

history of the patient’s anxiety or 

evidence that alternative methods of 

treatment such as non-controlled 

substances were considered. Tr. 183–84. 

There were also no prior medical 

records in the file and no documented 

attempt to get them. These failures 

contribute to Dr. Munzing’s opinion that 

the prescriptions to P.S. at issue did not 

meet the standard of care. Tr. 184. [Dr. 

Munzing testified that the ‘‘MMEs are 

fairly consistent [throughout,] in the 

mid-300 range,’’ but the patient did not 

seem to be getting sufficient pain relief 

to justify the risk of ‘‘the high MME and 

the combination with benzodiazepines.’’ 

Tr. 185.] 

Dr. Munzing testified that Respondent 

attempted alternative treatments for P.S. 

At one point, the Respondent prescribed 

testosterone to P.S. to help treat the 

side-effects of opioids, and the patient 

reported feeling better after receiving 

the testosterone. Tr. 360–61. Dr. 

Munzing recalled one of the patients 

was prescribed a Medrol dose pack, but 

could not recall if this was for Patient 

P.S. Tr. 361. At some point in time, 

Patient P.S. was given injections in the 

facet joint to help control the pain. Tr. 

362–63. The Respondent also attempted 

to have P.S. see a psychiatrist or 

psychologist 15 to help with his chronic 

anxiety problem, which is a reasonable 

thing for a doctor to do if he is not 

qualified or competent to deal with that. 

Tr. 396. 

Patient P.S. was prescribed five 

medications, four of which were 

controlled substances: Morphine sulfate 

extended release 30 milligrams three 

pills a day, morphine sulfate extended 

release 60 milligrams three pills per 

day, Dilaudid (hydromorphone), and 

lorazepam (a benzodiazepine) which is 

a total MME of 366 (not including the 

benzodiazepine). Tr. 185–187; GX 11. 

Dr. Munzing testified that the MME was 

very high. Tr. 187. Furthermore, Dr. 

Munzing testified, [‘‘we also have the 

opioid and the benzodiazepine that both 

the CDC and the FDA warn against’’ 

prescribing together. Tr. 187.] Dr. 

Munzing testified that these 

prescriptions were not issued in the 

usual course of professional practice or 

for a legitimate medical purpose. Tr. 

189. Dr. Munzing opined that the note 

for February 17, 2017, was deficient 

because there is a pop-up warning 

‘‘from the future, from May 31, 2019,’’ 16

it did not note alcohol use, and it did 

not provide a record of an exam being 

performed despite the patient being 

prescribed a high dosage of medication 

and receiving a benzodiazepine, without 

a diagnosis to justify it. Tr. 187–88. This 

patient also has significant medical 

problems, including history of an acute 

embolism and thrombosis or deep vein 

thrombosis (DVT), which puts him at an 

increased risk. Tr. 188–89. Dr. Munzing 

opined that the opioid prescriptions 

were not written in the usual course of 

professional practice or for a legitimate 

medical purpose because the dosages 

are high, there are dangerous 

combinations, there is no informed 

consent, the exam was deficient, and the 

documentation had ‘‘a whole multitude 

of parts that were necessary that were 

missing.’’ Tr. 189. 

Overall, Dr. Munzing’s review of all of 

P.S.’s medical records indicated there 

was no proper justification documented 

for the ‘‘very high’’ and ‘‘dangerous’’ 

dosage of opioids nor the 

benzodiazepines that were prescribed to 

P.S., and they therefore were not issued 

in the usual course of professional 

practice or for a legitimate medical 

purpose. Tr. 190–97. [Dr. Munzing 

testified that the prescribing was ‘‘not 

appropriate, this is very high, this is 

dangerous.’’ Tr. 191. Specifically, he 

testified ‘‘[t]here’s no informed consent. 

The exam is missing on the area 

[Respondent was] treating. And we 

don’t know really anything about the 

anxiety that reportedly the Xanax is 

coming from. . . . [This] patient still is 

put at significant risk and still the 

documentation is poor.’’ Id. Dr. 

Munzing also testified that there was 

never justification in the medical record 

for the benzodiazepine prescriptions. 

Tr. 193.] 

Patient P.S. had urine drug screens 

dated March 17, 2017,17 April 14, 2017, 

June 19, 2017, August 7, 2017, 

September 12, 2017, October 10, 2017, 

November 3, 2017, September 11, 2018, 

October 3, 2018, December 21, 2018, 

and March 26, 2019. Tr. 195–225; GX 

10. All of these drug screens showed 


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18 [Omitted for clarity.] 

*H Omitted repetitive text for brevity. 

19On cross examination, the Respondent’s 

counsel referred Dr. Munzing to a note regarding 

P.S. seeking an early refill due to leaving his paper 

prescription in a Lyft and Dr. Munzing confirmed 

that the Respondent’s note on this date indicated 

that he was ‘‘doing something to explore’’ the claim. 

Tr. 391–95. 

*I Dr. Munzing testified that ‘‘all four of the 

patients certainly have the likelihood of known 

pain generators.’’ Tr. 226. But he made clear in his 

testimony that having a source of pain alone, 

without complying with the steps required by the 

standard of care, was insufficient to justify 

prescribing controlled substances. Tr. 226–27. 

20A fentanyl patch is like a large band aid that 

works by absorbing through the skin over a period 

of time, and is really meant to be prescribed on a 

3-day basis because when it is used every two days, 

the MME calculation is higher, but it is a longacting opioid. Tr. 236–37. Sometimes a patient can 

have difficulty using the fentanyl patch and in this 

instance there are several ways to help keep it stuck 

in the skin, and if they are not successful, the 

doctor should stop prescribing the patch and 

instead prescribe oral medication. Tr. 237–38, 452– 

53. 

that Patient P.S. was negative for either 

lorazepam or alprazolam,18 an 

aberrancy, and the later drug screens 

showed that P.S. was negative for 

morphine, another aberrancy. Tr. 195– 

97; GX 10 at 76. Some of the drugs 

screens also showed alcohol use, [which 

Dr. Munzing testified ‘‘increases the risk 

to the patient of certainly overdose and 

overdose death.’’ Tr. 217.] According to 

the standard of care, the Respondent 

should have contacted the patient 

within a couple of days of receiving 

these aberrant drug screens to have the 

patient explain why he was not taking 

his prescribed medication or why he 

consumed alcohol. Tr. 198–99. There is 

no indication that the Respondent 

documented that he questioned the 

patient nor that the Respondent 

resolved these aberrant drug screens. Tr. 

199–202.*H

Despite all of these aberrant results 

(including P.S.’s evident alcohol use), 

there were no attempts for the 

Respondent to either address or resolve 

these issues with documentation in the 

medical record, which contributed to 

Dr. Munzing’s opinion that the 

prescriptions were written outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. [According to Dr. Munzing, 

following the aberrant drug screens, 

Respondent needed to explore the 

reason for the inconsistent result and 

resolve that reason ‘‘before continu[ing] 

to prescribe.’’ Tr. 213.] There are several 

potential dangers posed by these 

aberrant drug screens, including that the 

patient is not taking medication some 

days and taking extra other days, is 

hoarding the medication, or is illegally 

diverting the medication. Tr. 199, 211. 

[Dr. Munzing testified that the 

inconsistent drug screens and failure to 

document a resolution contributed to 

his opinion that the prescriptions issued 

to P.S. were outside the usual course of 

professional practice and not for a 

legitimate medical purpose. Tr. 201–04, 

211.] 

Ultimately, Dr. Munzing found that 

the prescriptions prescribed to P.S., 

which were stipulated to by the parties 

and listed in the Government’s 

Prehearing Statement, were far outside 

the standard of care, were not medically 

justified, and were outside the usual 

course of professional medical practice. 

Tr. 225; GX 4.19 *I

Patient J.K. 

Dr. Munzing testified that the 

standard of care for patients with 

chronic migraine headaches, or chronic 

headaches in general, [such as those for 

which Respondent was treating J.K.], 

requires that a provider take an 

appropriate history and examination, 

including a neurological examination, 

in order to narrow down what type of 

a headache the patient has and rule out 

certain causes such as a tumor or 

infection. Tr. 229. If the headaches 

become more severe, the provider 

typically does an imaging scan such a 

CT scan or an MRI to ensure there is no 

tumor. Tr. 229–30. The medical records 

for J.K. do not meet the standard of care 

because there is no detailed history, no 

detailed exam, and no evidence of 

imaging studies, yet the Respondent 

prescribed opioids, which is not 

generally a successful treatment for 

chronic headaches, especially migraine 

headaches. Tr. 230–31; GX 12. 

[Dr. Munzing opined that Respondent 

did not meet the standard of care for 

evaluating and monitoring J.K. Tr. 232.] 

The Respondent’s documentation of 

J.K.’s medical records did not establish 

that Respondent met the standard of 

care because there was no 

comprehensive history regarding mental 

health issues or prior alcohol or drug 

use: there were no prior medical 

records; there were multiple unresolved 

aberrant drugs screens; and vital signs 

were not taken at every visit. Tr. 232– 

33. There was also limited, vague 

documentation regarding the patient’s 

cancer diagnosis with no information 

regarding oncology doctors, 

chemotherapy, or treatment for cancer 

pain. Tr. 233–34. Overall, the medical 

history done for J.K. did not justify the 

high dosage of medications that the 

Respondent prescribed to her. Tr. 234. 

The standard of care would require a 

detailed medical history and past 

medication history, specifically 

discussing the patient’s breast cancer, 

and a history regarding the patient’s 

headaches in general, including any 

treatments that had been attempted as 

well as consultations with other doctors. 

Tr. 234–35. [According to Dr. Munzing, 

each of these elements was missing. Id.] 

The Respondent also failed to 

adequately document the risks and 

attempts to moderate the risks, and 

there is no evidence of informed 

consent in the file. Tr. 235, 446, 448, 

458. 

The Respondent issued controlled 

substance prescriptions to J.K. on 

November 28, 2016, which included: (1) 

Fentanyl patch,20 75 micrograms ever 

hour to change every four hours; (2) 

Percocet 10 milligrams, 180 for 30 days, 

6 per day; (3) Soma, a muscle relaxant; 

and (4) Nuvigil, which is a stimulant. 

Tr. 235–236; GX 13. The combination of 

the Percocet and fentanyl patch equals 

360 MME. Tr. 237. [Dr. Munzing 

testified that Soma ‘‘is a respiratory 

depressant . . . [and it is] fairly habit 

forming or addicting. . . . [I]t is part of 

a dangerous triad; an opioid, Soma and 

a benzodiazepine is referred to . . . as 

the trinity or the holy trinity.’’] Tr. 238. 

In fact, many organizations stopped 

prescribing Soma ten years ago. Tr. 238– 

39. The patient’s pain level of four out 

of ten would not justify a higher level 

of opioids and in fact, the standard of 

care would dictate trying other 

modalities prior to prescribing opioids. 

Tr. 239–40; GX 13. 

[The combination of fentanyl and 

Percocet was prescribed a number of 

occasions, but] there was no 

justification as to why J.K. was 

prescribed this combination or the very 

high doses, and therefore these 

prescriptions were not issued in the 

usual course of professional practice or 

for a legitimate medical purpose. Tr. 

240–41. [Dr. Munzing opined that every 

time Respondent prescribed a 

combination of fentanyl and Percocet to 

J.K., it was outside the usual course of 

professional practice. Tr. 241.] On 

January 29, 2017, the Respondent 

prescribed medications to J.K. that 

equaled 405 MME, without justification 

provided in the medical records, and 

outside the usual course of medical 

practice and without a legitimate 

medical purpose. Tr. 242–44; GX 13. On 

August 18, 2017, the Respondent 

changed J.K.’s prescription by switching 

the fentanyl patch and added 

OxyContin and oxymorphone ER, which 

would be 450 MME. Tr. 244. J.K.’s 

opioid prescriptions were therefore 

being increased without any 

justification for doing so documented in 

the medical records [and without trying 


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21The Respondent’s counsel objected to this 

questioning and noted that it was a nurse 

practitioner who met with J.K. regarding the 

prescriptions for February 9, 2018, and not the 

Respondent. Tr. 252. The Government clarified 

with Dr. Munzing that the Respondent should have 

been aware of these prescriptions that went out 

under Respondent’s name. Tr. 252–53. 

22On cross examination, Dr. Munzing stated that 

although he believed that J.K. was seeing a 

psychiatrist, who was prescribing Adderall and a 

benzodiazepine, these medications were not listed 

on the medication list and therefore the 

medications showing up in the urine screen were 

not consistent with what the medical records were 

documenting. Tr. 440–41. However, upon further 

pressing from counsel he agreed that the test would 

not be inconsistent if the patient was taking 

everything in its entirety, but that it would need to 

be documented. Tr. 442. 

23On cross examination, the Respondent 

questioned Dr. Munzing about a note from the 

March 7, 2018 visit with Nurse Practitioner Pasco 

that mentioned a ‘‘discussion’’ and later stated 

‘‘patient understandable’’ and Dr. Munzing stated 

that it could have referred to describing the risks 

of combining benzodiazepine and opioid together 

and in fact was more likely there was a discussion 

that there is a risk of those medication categories. 

Tr. 362–64, 67–68. 

24On cross examination, the Respondent 

questioned Dr. Munzing about a note from the nurse 

practitioner from March 21, 2018, stating 

‘‘discussed risk of respiratory depression with 

concurrent opioid and benzodiazepine use . . . 

patient verbalized understanding’’, which Dr. 

Munzing stated appears to seem that the nurse 

practitioner talked about the risk of respiratory 

depression from P.S.’s combined medications. Tr. 

372–73. [But, Dr. Munzing made clear that there 

were other risks that did not have a documented 

discussion and that, overall, the discussion of risks 

was insufficient to meet the standard of care for 

informed consent. Tr. 374–75.] 

25On cross examination, the Respondent 

questioned Dr. Munzing about a visit with the 

Respondent and the note mentioned ‘‘discussed to 

patient current CDC guideline and the need to 

decrease his opiate dose, his current morphine 

equivalent is 366 milligrams per day,’’ which likely 

means there was a general discussion that the 

Respondent mentioned the CDC guidelines say 90 

MME, and the patient is currently at 366 MME. Tr. 

375–76; GX 10 at 544, 550. Dr. Munzing had no 

objection to the statement in the note itself, [text 

omitted for clarity] but noted that whether it meets 

the requirement for informed consent is a different 

question. Tr. 377. 

*J Dr. Munzing testified that the standard of care 

when prescribing for end stage cancer is different. 

Tr. 281. 

other treatment options,] which violates 

the standard of care. Tr. 245. The 

prescriptions were therefore not issued 

in the usual course of professional 

practice or for a legitimate medical 

purpose. Tr. 244–47. 

On November 10, 2017, J.K. had an 

office visit; the record stated that her 

pain level was 4 and that the 

Respondent would continue prescribing 

her current medications, making these 

prescriptions outside the usual course of 

professional practice and not for a 

legitimate medical purpose. Tr. 247–48. 

Patient J.K. had another visit on January 

8, 2018, but there were no documented 

vital signs and there was nothing 

written under the objective assessment 

plan, which violates the standard of 

care; therefore, the prescriptions issued 

at this time were not issued in the usual 

course of professional practice or for 

legitimate medical purpose. Tr. 248–49. 

On February 9, 2018, the Respondent 

replaced OxyContin with oxycodone 

without any justification for doing so 

documented in the patient record,21

which does not meet the standard of 

care. The prescriptions were not issued 

in the usual course of professional 

practice or for a legitimate medical 

purpose. Tr. 249–55. GX 13. On October 

16, 2018, the prescriptions totaled 330 

MME and there was no justification for 

providing these prescriptions 

documented in the record. Tr. 255–56; 

GX 13. Furthermore, there was a note in 

the record that J.K. was taking leftover 

pain medication, which means that she 

was not following the directions of the 

Respondent and may be receiving a 

higher dosage than she needed. Such 

prescribing is contrary to the standard of 

care. Tr. 256–57. 

There is also a note in the file from 

an incident that occurred on October 12, 

2018, when J.K. called the office and 

stated that she was unsure if she would 

be alive tomorrow and ‘‘she [is] going to 

drive off the road due to not getting 

[her] prescription.’’ Tr. 258. Dr. 

Munzing noted that this was a very 

alarming note and that to a reasonable 

person, this would indicate that J.K. was 

suicidal. Tr. 258. The standard of care 

for a doctor with a patient who is on 

high opioids and has suicidal ideations 

is to get that patient immediate care, 

look into the patient’s mental health 

history, work with other providers such 

as a psychiatrist, and come up with a 

plan. Tr. 259. Typically, a doctor would 

not continue the medications being 

prescribed and would work to develop 

a possible management plan for the 

patient. The standard of care would also 

require that the doctor have a discussion 

with the patient on a subsequent visit, 

[but Respondent did not.] Tr. 259–60. 

The October 16, 2018, prescription was 

therefore written outside the usual 

course of professional practice and was 

not for a legitimate medical purpose. 

[Dr. Munzing explained that it was 

‘‘dangerous’’ to continue to prescribe 

opioids in this manner for a patient with 

suicidal ideation. Tr. 260. ‘‘You may 

give a three-day dosage or something, 

recognizing that if this person is 

suicidal you may be providing them the 

wherewithal and the means to do it.’’ 

Id.] 

J.K. also had inconsistent urine drug 

screens on April 27, 2017, February 9, 

2018, March 19, 2018, June 4, 2018, and 

July 31, 2018, which showed the 

presence of THC, or marijuana, and 

amphetamine. Tr. 261, 263, 270. This is 

problematic because it was not a 

prescribed medication, and taking 

marijuana, even if it were legally 

prescribed, while on a high dosage of 

opioids adds a risk to the patient. Tr. 

262–63. J.K. also tested positive for 

amphetamine, which is a stimulant and 

can be addictive and dangerous. Tr. 

263–64. There is no indication that this 

was part of J.K.’s management plan with 

the Respondent, and even if the 

amphetamine was prescribed by another 

doctor, it should be very clearly 

documented in the medical records 

along with informed consent. Neither 

controlled substance was in J.K.’s 

medical records. Tr. 264–66.22 J.K. 

tested positive for amphetamines again 

on May 12, 2017, and September 15, 

2017. Tr. Tr. 267; 269; 270; GX 13. 

There is no indication in the record that 

the Respondent discussed any of these 

aberrant drug screens with J.K. at 

subsequent office visits. [Dr. Munzing 

opined that there was no evidence that 

Respondent addressed J.K.’s 

inconsistent drug screen results at all. 

Tr. 267.] There was some indication that 

Respondent’s nurse practitioner had 

discussions with J.K. regarding risks on 

March 7, 2018,23 and March 21, 2018,24

[but Dr. Munzing testified that those 

discussions, as documented, were 

insufficient to satisfy the requirement 

for obtaining informed consent.] Tr. 

266–67; 268–69; 270; 279. This 

contributes to Dr. Munzing’s opinion 

that the prescriptions written for J.K. 

were outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 266–67; 

268–69; 270; 279.25

Dr. Munzing reviewed the medical 

records that pertained to the treatment 

of J.K.’s breast cancer, including records 

from her oncologist. Tr. 279. Reviewing 

these records informed Dr. Munzing’s 

opinion that J.K. had been cancer-free 

for at least four years, so the Respondent 

was not prescribing opioids to J.K. for 

end stage cancer.*J Tr. 279–81. Overall, 

Dr. Munzing opined that each of the 

relevant prescriptions to J.K. were 

issued outside the standard of care in a 

‘‘multitude of standard of care elements 

that should have been done and weren’t 

done,’’ were not medically justified as 

prescribed, and were not within the 

usual course of professional practice, 

and they put the patient at a higher risk. 

Tr. 281. 

Patient D.L. 

D.L. is a patient who is in her late 

60’s/early 70’s. Tr. 287. Overall, Dr. 


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26The Respondent also increased D.L.’s dosage of 

morphine sulfate on February 23, 2018. Tr. 288–89. 

There was no justification in the records for this 

increase to a higher MME. 

27The visit subsequent to this drug screen, on 

May 4, 2018, is silent as it pertains to resolving the 

aberrant drug screen and instead mentions that the 

patient had no aberrant behavior and none was 

reported. Tr. 304–05. 

28The Tribunal ruled that this patient witness 

could only testify relating to his discussions with 

the Respondent, his discussions with medical staff 

at the Respondent’s office, treatment received, the 

regularity of treatment, but nothing relating to the 

patient’s own evaluation of treatment, or efficacy of 

treatment because such discussion would require 

medical expertise. Tr. 504. 

29The Tribunal gave the Government a running 

objection on leading questions. Tr. 516. 

30The SANEXAS therapy and injections were 

done in the Respondent’s office. Tr. 526. 

Munzing’s review of D.L.’s medical 

records indicated that the evaluation 

and monitoring the Respondent did for 

D.L. did not meet the standard of care, 

and the opioid prescriptions issued to 

D.L. were not medically justified nor 

issued in the usual customary medical 

practice in the State of California. Tr. 

282–83. [The medical history was 

‘‘cursory . . . and lack[ed] detail.’’ Tr. 

282.] Furthermore, the Respondent did 

not [attempt to obtain] prior medical 

records, which was mandated by the 

standard of care. Tr. 283. 

The Respondent prescribed D.L. 

lorazepam, Percocet, morphine sulfate, 

and oxymorphone, with an initial MME 

of 455.26 Tr. 283–86; 288; GX 14; 15. 

D.L. was also prescribed Lunesta, a 

sleeping agent and respiratory 

depressant that has the potential risk of 

habit-forming addiction as well as the 

increase the risk of overdose when 

prescribed in combination with opioids. 

Tr. 286. Furthermore, adding a sleeping 

medication increases the risk, especially 

when taking into account D.L.’s age. Tr. 

286–87. [Dr. Munzing testified that over 

the three-year period of treatment, the 

‘‘extremely high dose medications’’ did 

not ‘‘show that there was significant 

improvement’’ in the pain level. Tr. 

289.] There was no justification for 

prescribing a benzodiazepine 

(lorazepam) and a sleeping agent, and 

there was no informed consent. 

Furthermore, at a visit on May 31, 2018, 

the Respondent wrote a note indicating 

that Percocet would be decreased; but in 

reality, the Respondent increased the 

Percocet prescription. 295–96; GX 15 at 

445. The record also indicated that D.L. 

had been consulted regarding her MME 

of 410, which was above the 

recommended 90 MME dosage by the 

CDC guidelines, and that the patient 

would be seen once a week until 

decreased. Tr. 297. Although the MME 

was mildly decreased over time, there 

was no evidence that the MME was 

significantly decreased and it remained 

at a dosage well above 90 MME. This 

note/discussion does not meet the 

standard of care in California and does 

not serve as an informed consent 

[because there was no documentation 

showing that the ‘‘exceedingly high risk 

of the opioids,’’ including ‘‘addiction, 

overdoses, [and] death,’’ were discussed 

with the patient whose age ‘‘adds to the 

patient’s risk.’’] Tr. 297–98. 

Furthermore, the Respondent did not 

start tapering the patient down slowly 

and carefully in order to mitigate the 

risk, nor did he look at alternative 

strategies to manage the patient’s pain. 

Tr. 300. 

Dr. Munzing found that the relevant 

prescriptions violated the standard of 

care and were not issued in the usual 

course of medical practice or for a 

legitimate medical purpose. Tr. 287, 

290, 292, 294, 299, 301, 308, 309. 

D.L. had drug screens on March 23, 

2018, (which was negative for 

oxycodone and lorazepam), April 20, 

2018,27 (which was negative for 

oxycodone and lorazepam), and January 

31, 2019, (which was negative for 

Percocet and Lunesta). Tr. 302–05. 

Nothing in the record showed that there 

was any discussion regarding the 

aberrant drug screens. Tr. 308. [And as 

Dr. Munzing opined, a physician ‘‘needs 

to address [the reason for the 

inconsistency] and document the 

resolution if one is going to continue 

prescribing.’’ Tr. 307.] 

As to the documented discussion the 

Respondent had with D.L. regarding 

using a pain pump, Dr. Munzing 

testified there was insufficient 

information to determine whether that 

was a reasonable alternative because 

there was not even two full lines of 

information in the medical record. 

Specifically, Dr. Munzing testified he 

could not ‘‘even come close to making 

that determination.’’ Tr. 407–08. On 

June 2, 2017, it appeared that the 

Respondent reviewed an X-ray of the 

hip and left knee and had a discussion 

regarding hip injections, but there is 

nothing documenting what the 

Respondent discovered from the X-rays. 

Tr. 408–09. 

Respondent’s Case-in-Chief 

The Respondent presented his casein-chief through the testimony of five 

witnesses: (1) The Respondent, (2) D.P., 

(3) Dr. Wiederhold, (4) Dr. Joseph 

Shurman, and (5) D.L. 

Patient D.P.28

Patient D.P. met the Respondent after 

a fall that resulted in five compression 

fractures and five fractured vertebrae in 

his back. Tr. 507. He was in extreme 

pain and had several procedures that 

did not help him. At one point, he was 

bedbound and had some pretty dark 

times lying in bed, sweating through the 

pain. He saw lots of different doctors, 

but nothing really happened. At one 

point his mother recommended her 

doctor, [not Respondent,] who did not 

have a ‘‘normal medical office;’’ that 

physician told D.P. that there was no 

upper limit on pain medicine, and that 

as long as D.P. was ‘‘breathing [he 

would] just increase it until [he is] 

comfortable.’’ Tr. 507–08. At every visit 

he would pay that doctor in cash and 

that doctor would just ‘‘kind of double 

the dosage. . . [of] OxyContin.’’ Tr. 508. 

After months of this prescribing, the 

other doctor ‘‘closed up shop’’ and 

‘‘went back to Russia.’’ Id. D.P. was then 

referred to the Respondent from the ER 

at Paradise Valley Hospital. In the 

meantime, D.P.’s primary care physician 

continued to prescribe the same level of 

opioids for many months until ‘‘we kind 

of got things squared away’’ and D.P. 

was able to see the Respondent. Tr. 508– 

09. 

According to D.P., Respondent 

seemed surprised to learn that D.P. was 

on such a high dosage and explained to 

D.P. that opioids can depress breathing, 

other sensory functions, digestion, 

libido, and affect pain reception. Tr. 

511–13. The Respondent explained that 

D.P. needed to be brought down [from 

his high doses] and to be aware of 

symptoms, such as being tired, 

indicative of not breathing. Respondent 

told D.P. that even though D.P. was 

taking these prescriptions regularly, he 

could still potentially overdose. Tr. 513, 

517. The Respondent gave D.P. a Narcan 

pack that could be used to reverse the 

effects of opioids on the body. Tr. 513– 

15.29 The Respondent also suggested 

that D.P. try some other treatments 

including injections and physical 

therapy, and said that they would ‘‘work 

through this.’’ Tr. 517–18. Being on the 

opioids allowed D.P. to work and even 

volunteer and ‘‘function[ ] like a normal 

person would.’’ Tr. 519. D.P. was 

reluctant to lower his dosage because he 

was functioning pretty well and his pain 

range was between 2 and 4. Tr. 520. 

The Respondent had D.P. try 

injections and SANEXAS therapy,30 and 

physical therapy with his home health. 

Tr. 521, 522. The SANEXAS therapy, 

which is a unit that sends electrical 

stimulation to the body through a 

computer, helped his back relax a little, 

but did not help with his bone pain. Tr. 

521–22. 


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31 [The Government objected to the qualification 

of Dr. Wiederhold as a witness primarily because 

he was not identified as an expert witness in 

Respondent’s Prehearing Statement. Tr. 596, 604.] 

The tribunal ultimately found that Dr. Wiederhold’s 

summary in the Respondent’s Prehearing Statement 

dated October 16, 2020, and the summaries filed as 

exhibits sufficiently described his testimony as an 

expert. Tr. 596–603. Tr. 603–04, 608. 

32He is currently working with a company that 

is developing a subcutaneous Naltrexone implant 

which can be very important for medication 

assisted therapy. Tr. 581. He is also working with 

another company that is looking for a way to 

objectify levels of pain, which involves looking at 

electroencephalogram (EEG) and other type of 

physiological signals to try to match those to 

identifiable levels of pain. 

33The Respondent’s counsel showed Dr. 

Wiederhold Respondent Exhibits S, T, U, V and he 

confirmed that he prepared these exhibits in the 

course and scope of reviewing the patient records 

for D.P., D.L., J.K., and P.S. respectively. Tr. 586– 

88. The tribunal later allowed Dr. Shurman to be 

recalled to testify that the page numbers listed in 

the exhibits may not actually correspond to the date 

in the medical records. Tr. 807–816. The 

Respondent also offered Exhibit F into evidence 

and the Tribunal admitted the document into 

evidence over objection. Tr. 817–18. 

34The Respondent’s counsel posed hypothetical 

questions to Dr. Shurman throughout this 

testimony. The Government’s counsel noted this on 

cross-examination and Dr. Shurman admitted that 

the questions were posed as hypotheticals because 

the discussions were not documented in the 

medical records. Tr. 728–29. 

D.P. was going to the Respondent’s 

office once every week and usually saw 

the Respondent, but for some visits he 

saw a nurse practitioner who would 

always check to make sure he was 

breathing well. Tr. 522–24. Usually 

before seeing the Respondent, a nurse 

would take his blood pressure and 

weight, and he would usually do a drug 

screen. Tr. 525. The Respondent would 

listen to his heart, listen to him breathe, 

and feel for where the pain was by ‘‘like 

push[ing] on [his] back.’’ Tr. 525–26. At 

some point the Respondent explained to 

D.P. that he would not be able to 

prescribe to him at the level he was 

taking, so D.P. tried to go to a detox 

facility; he was ultimately admitted into 

Sharp Memorial Hospital and went 

through detox there. Tr. 528–29. The 

doctor at that hospital prescribed 

opioids upon his release. Tr. 529–30. 

D.P. is currently being treated for pain. 

Tr. 531. 

Patient D.L. 

D.L. has been the Respondent’s 

patient for four or five years, maybe 

longer. Tr. 794. Her primary care 

physician referred her to the 

Respondent for her uncontrolled pain. 

Tr. 795. At that time, she was prescribed 

Narco or Percocet and lorazepam. The 

Respondent went into detail with her 

about the safety of those medications 

and how the combination could cause 

respiratory depression, and that she 

could die or they could lead to 

addiction. Tr. 797–99, 805. The 

Respondent also gave her Narcan spray 

at some point, with prescription refills. 

Tr. 799–800. The Respondent discussed 

the importance of taking her 

medications as prescribed and her son 

dispenses her prescriptions to her. Tr. 

801. She and the Respondent are 

working to bring her pain medications 

down and are looking into having an 

experimental implant in her back to 

help with the pain. Tr. 802, 806. The 

Respondent currently prescribes her 

Percocet, oxycodone, gabapentin, and 

another medication she could not recall. 

Tr. 803–04. The nurse practitioners in 

the office have also discussed the risks 

and safety issues with her. Tr. 804–05. 

Mark Wiederhold, M.D.31

Dr. Wiederhold received his Ph.D. in 

Pathology at the University of Illinois 

and did a year fellowship in the Special 

Life Center for Multiple Sclerosis at the 

University of Chicago. Tr. 578. He 

started medical school at Rush Medical 

College and started his internship and 

residency at the Scripps Clinic in La 

Jolla; he finished in internal medicine 

and critical care. Tr. 578. He then took 

part in clinical trials and research 

programs, and he spent some years at 

the Science Applications International 

Corporation where he worked on 

national security issues including work 

with the DEA. Tr. 578–79, 604–05. He 

is not board certified because he failed 

the board exam and did not want to take 

it again. Tr. 579. He also periodically 

performs locums work, meaning he fills 

a temporary position within a medical 

group. Tr. 595, 594. 

He has been seeing patients for thirty 

years. Tr. 577, 605. He has been in 

private practice for twenty one years at 

Virtual Reality Medical Center focusing 

on managing pain with non-narcotic 

methods 32 for veterans with posttraumatic stress disorder. Tr. 576. He 

also treats patients with COVID. Tr. 576. 

He was on the staff at Scripps for 

fifteen years doing administrative work 

on review committees that reviewed 

charts of other physicians. Tr. 577. At 

Scripps Clinic, he reviewed patient 

charts for accuracy and completion, and 

to ensure that the doctors were meeting 

protocols. Tr. 579–80. This review 

included reviewing patients who were 

treated for chronic pain conditions. Tr. 

580, 83. 

He was also an expert witness for the 

State of California in worker’s 

compensation cases, many of which 

involved chronic pain management. Tr. 

577. He said he has testified as an expert 

witness, but could not recall the name 

of the court/tribunal. Tr. 583–84. He 

was an internal medicine physician and 

ran the intensive care unit for many 

years; he has treated patients in the 

emergency room and in the emergent 

care section, so he has a lot of 

experience evaluating patients for pain 

management. Tr. 577–78. [Dr. 

Wiederhold was qualified in this matter 

as ‘‘an expert in pain management.’’ Tr. 

608.] 

At the request of the Respondent’s 

counsel’s office, Dr. Wiederhold became 

involved in the instant case and was 

asked to review medical records and 

evaluate the quality of care provided to 

four patients.33 Tr. 584, 606. He 

evaluated these patients on three levels: 

(1) He generally made sure that he 

understood the types of patients that 

were being seen and the complexity of 

the patients; (2) he prepared a number 

of metrics to make some type of 

objective record; and (3) he made sure 

he understood the complexities and 

difficulties of dealing with the 

Government-supported healthcare 

system. Tr. 607. 

He confirmed that he drafted reports 

with Dr. Shurman, and he has worked 

with him for five or six years in 

developing new pain programs. Tr. 589. 

The two of them discussed their 

findings from reviewing the record and 

their opinions and thoughts about the 

management of these patients. He does 

not currently practice pain management 

or see pain patients. Tr. 590. Although 

he previously prescribed controlled 

substances, he does not currently 

prescribe controlled substance at the 

Virtual Reality Medical Center. Tr. 593– 

94. He agreed that the standard of care 

requires sufficient documentation in 

medical records to justify controlled 

substance prescriptions to patients, 

which is for the patient’s well-being and 

also protects the doctors. Tr. 595–96. 

Doctors are also responsible for 

reviewing their patient’s medical 

records to ensure they are accurate and 

complete. Tr. 596. 

Dr. Shurman 34

Dr. Shurman attended Temple 

University for his undergraduate 

education and then attended Temple 

Medical. Tr. 612. He then went to Mass 

General, Harvard’s residency in 

anesthesia and intensive care. Tr. 612, 

613. He then worked at the University 

of Washington for four or five years, 

where the first model pain center for the 

country started, and then he came to 

Scripps as a clinical instructor. Tr. 612– 

13, 615, 616. He believes that he was 

one of the first full-time pain specialists 

in the country. Tr. 616, 639. When he 


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*K The CDC Guidelines do address prescribing for 

patients who are new to opioids; however, they also 

clearly address patients who use opioids long-term 

and even patients who are new to the clinician but 

on long-term opioid therapy. See GX 5. 

Accordingly, I disagree with Dr. Shurman’s 

suggestion that the CDC Guidelines do not apply to 

legacy patients. 

moved to San Diego, he joined the 

Anesthesia Service Medical Group, 

where he was the Chairman of Pain 

Management and head of Medical 

Research. Tr. 617. He has been the 

Chairman of Pain Management at 

Scripps Memorial Hospital for many 

years; he consults for multiple 

companies primarily in alternative 

forms of care, he serves as the co-chair 

for Palliative Care at Scripps, and he is 

involved in six or seven research 

projects to try to address the opioid 

epidemic, addiction, and the use of 

alternative forms of therapy. Tr. 610–12, 

617. He has been the treating physician 

for approximately twenty to thirty 

patients in the last three years 

prescribed with high dose opioids, 

including patients who have also been 

prescribed either benzodiazepines, 

muscle relaxant medications, or other 

medications. Tr. 632–33, 635, 638–39. 

He would slowly taper patients off high 

doses of opioids, and testified that it 

should be a long-term goal to attempt to 

gradually taper patients off high-dose 

opioid use. Tr. 636, 726. In fact, he 

opined, it can take as long as three years 

to gradually and safely taper a patient. 

Tr. 727. In the last ten years, he has 

prescribed patients over 1,000 MME. Tr. 

637. 

He has worked with the California 

Medical Board as a reviewer and expert 

and has testified in cases involving pain 

management as an expert witness. Tr. 

628–29. The standard of care is what a 

reasonable pain management specialist 

would do when treating patients in the 

San Diego community. Tr. 629, 733–35. 

He has met with other pain management 

specialists at conferences and 

gatherings. Tr. 643. [Dr. Shurman was 

qualified in this matter as ‘‘an expert in 

pain management and treatment.’’ Tr. 

640.] 

In 2016, there were no upper MME 

limits if a doctor had a difficult patient 

that had multiple surgeries. Tr. 630. The 

guidelines were more for risk 

stratification and in 2016, the CDC 

implemented its guidance regarding 90 

MME, which was primarily for family 

practice doctors. If a patient was 

prescribed above 90 MME, then the 

recommendation was for the doctor to 

refer the patient to a pain specialist. Tr. 

630–31. 

The standard of care requires that a 

doctor have complete and accurate 

documentation of patient treatment in 

the medical records and sufficient 

documentation to justify controlled 

substance prescriptions, which protects 

the doctors as well as the patients. Tr. 

720–21. It is also the doctor’s 

responsibility to review patient medical 

records and ensure they are complete 

and accurate. Tr. 720. [Dr. Shurman 

agreed that ‘‘patients on high-dose 

opioids are put at a higher risk for other 

problems.’’ Tr. 721.] 

It was within the standard of care at 

the time of an initial visit to keep a 

patient on his existing medication level, 

even if he was on high-dose pain control 

medications or a combination of antianxiety drugs, benzodiazepines, or 

muscle relaxants, if the patient was 

already on these drugs for some time. 

This is because, according to Dr. 

Shurman, it is important to get to know 

the patient and make a plan to slowly 

taper. Tr. 630–32, 640–41. The standard 

of care from 2016–2019 did not require 

that a physician take a patient’s vital 

signs at every visit when the patient was 

prescribed above 90 MME. Tr. 642–43. 

The Respondent’s frequency in taking 

vitals was within and even above the 

standard of care for the four patients 

because the Respondent was using pulse 

oximetry to measure the oxygen 

saturation levels of his patients and 

monitor for respiratory depression. Tr. 

644–46. 

Dr. Shurman opined that the standard 

of care does not require that a doctor 

examine the same area on the body 

every week or every two weeks; a 

limited exam every month or two is 

sufficient [‘‘unless the patient has a 

complaint . . . or an exacerbation.’’] Tr. 

648. Pain management agreements are 

important for the doctor to have a 

discussion with his patients about the 

risks of psychological dependency, 

addiction, physical dependence, and 

side effects. Tr. 649. Executing a pain 

management agreement with a patient 

as a way of having an informed consent 

discussion was the standard of care. Tr. 

650–52. Dr. Shurman reviewed the pain 

management agreements available in 

this case, [but he did not clearly testify 

that the pain agreements here, absent a 

documented discussion, were sufficient 

to meet the standard of care for 

informed consent.] Tr. 652–54. 

During the period from 2016 to 2019, 

the standard of care was to review 

CURES Reports for patients on high 

doses of opioids every four months and 

the Respondent met this standard of 

care for all four patients. Tr. 665–66. 

According to Dr. Shurman, addiction is 

when a patient is ‘‘crushing . . . 

injecting . . . diverting . . . selling and 

all that.’’ Tr. 680–82. The standard of 

care in California allows physicians to 

have different opinions about the 

alternative methods of treatment of 

patients. Tr. 701. 

Overview 

For this case, Dr. Shurman spent 

approximately ten hours reviewing the 

Respondent’s medical records (which 

included the time ‘‘he dream[ed] about 

[the case]’’) and the summary prepared 

by Dr. Wiederhold, which assisted in 

his opinion about this case. Tr. 718–19. 

Dr. Shurman prepared, signed, and 

reviewed the reports, which were 

identified as Respondent’s Exhibits S, T, 

U, and V. Tr. 618–20. 

Dr. Shurman opined that the 

Respondent met the standard of care in 

terms of informed consent for all four 

patients based on the Respondent 

offering Narcan and performing the 

oximetry [which, according to Dr. 

Shurman, reflected that Respondent 

‘‘was concerned.’’] Tr. 655–56. The 

existence of pain management 

agreements is very important. Tr. 656. 

The Respondent’s actual documentation 

should have been better than it was in 

some areas for all patients. Tr. 669–71. 

Legacy patients are long-term patients 

who have been brought in on high-dose 

opioids. Tr. 687–88. [Dr. Shurman 

clarified that all of the patients at issue 

in this case are legacy patients and 

suggested that the standard of care for 

them was different than for patients 

who are new to pain management.*K Id. 

(‘‘When you look at the 2016 guidelines, 

the focus is really on new patients.’’)] 

The CDC guidelines suggest to slowly 

taper such patients if possible. Tr. 729. 

All of the Respondent’s patients had 

some organic source for their chronic 

pain conditions and the Respondent 

explored alternative means of trying to 

help these patients with their chronic 

pain problems. Tr. 695–96. Dr. Shurman 

opined that it was excellent that the 

Respondent tried various other avenues 

besides medications, including electric 

stimulation, injections, and medications 

other than opioids. Tr. 696. The 

Respondent also conducted 

pharmacogenetic testing, which 

identified that some patients were rapid 

metabolizers, which would need to be 

taken into consideration when 

reviewing urine screens; such a 

diagnosis would be important to 

document in the patient’s medical 

record. Tr. 696–99, 731. The 

Respondent closely monitored all his 

patients. Tr. 707. When treating these 

four patients who were on high-dose 

MMEs and combinations of medications 

such as benzodiazepines, muscle 

relaxants, or sleep medication, it is a 

balancing of risks versus benefits in 


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35 [Footnote modified for clarity. On crossexamination, Dr. Shurman stated that he ‘‘[did not] 

find specific documentation of a discussion’’ 

between Respondent and D.P. regarding the 

‘‘various risks associated with him taking opioids 

at such a high dose.’’ Tr. 722–23. However, he 

inferred these discussions occurred because the 

pain management agreement said ‘‘he will discuss 

other side effects with the patient.’’ Tr. 723. And 

without such a conversation, ‘‘why did he use an 

oximeter, why did he give the patient Naloxone, 

. . . there’s obviously a reason for it.’’ Tr. 723. 

However, Dr. Shurman ultimately agreed that he 

‘‘never saw anything in the medical records that 

documented a discussion about the high risks due 

to high-dose opioids.’’ Tr. 723–24.] 

36Urine screens are used for multiple purposes 

including to make sure that a patient is taking his 

prescriptions and to monitor illicit drugs. Tr. 661. 

In D.P.’s case, the Respondent went above the 

standard of care regarding urine screens because it 

is an undeserved population and such screens only 

need to be done about every three months. Tr. 662– 

63, 725. The urine screens for the other three 

patients were also excellent and above the standard 

of care, as they were the more costly, confirmatory 

urine screens. Tr. 663–64. 

*L Sentence moved for clarity. 

*M Sentence modified for clarity. 

*N Dr. Shurman testified that, ‘‘one of the things 

[Respondent is] going to improve on [is] to take an 

abnormal screen, document in his records and in 

certain cases discuss it with the patients. But [there 

is] no lapse in his clinical judgment.’’ Tr. 728. 

*O Specifically, Dr. Shurman testified, ‘‘[t]here are 

side effects sometimes, nausea, constipation. And 

sometimes they’re having a good day, they may not 

take it. Or sometimes they’re having a bad day and 

they may take more. And to kind of look at the 

average of what these patients take, . . . sometimes 

it may not show up.’’ Tr. 678. He went on to testify 

that the standard of care did not require that a 

physician immediately taper medications or refer a 

patient to an addictionologist following an aberrant 

drug screen. Tr. 679. Instead, ‘‘you talk to them 

about [the aberrancy]’’ and if the patient says they 

are ‘‘taking more than they usually take . . . to 

stabilize their pain . . . [then you] don’t consider 

it aberrant behavior.’’ Tr. 682. 

37 Dr. Shurman clarified that Lunesta, or a 

sleeping agent, is not part of ‘‘the Holy Trinity.’’ Tr. 

706. [Text from preceding sentence omitted for 

clarity.] 

38At this point in the testimony the Government’s 

counsel noted that the document Dr. Shurman was 

using had highlights and notes. Tr. 704. The 

deciding how to manage the patient and 

it depends on the patient. Tr. 711. None 

of the risks manifested in these four 

patients while the Respondent was 

treating them, and Dr. Shurman opined 

that the Respondent had really good 

judgment. Tr. 712. 

Patient D.P. 

Regarding D.P., Dr. Shurman testified 

that the standard of care would require 

that, at the initial visit, the doctor have 

a discussion with the patient and try to 

taper down his dosage slowly as he had 

been prescribed approximately 3,000 

MME by a previous physician, which is 

an unusual situation. Tr. 653–54, 657, 

660–61, 685. The standard of care 

would also require that the Respondent 

talk about the risk of addiction and the 

risk of overdose. Tr. 654. The records 

did reflect that D.P. was provided 

Narcan, which is used to reverse the 

effects if someone has a severe 

respiratory depression. Tr. 654. The 

notes in the medical records also 

showed that the Respondent had 

discussions about trying to taper D.P. 

Dr. Shurman testified there was a risk in 

quickly decreasing D.P.’s MME as there 

was a study that forced tapers led to 

forty-three percent of the patients being 

hospitalized. Tr. 657–58, 726.35

It was evident that the D.P. remained 

relatively safe under the Respondent’s 

care because D.P. was clear and alert; 

his urine screens,36 oximetries, and 

CURES were appropriate; and he had a 

quality of life. Tr. 658. D.P. had a 

painful condition called chronic 

cellulitis. Tr. 660. He went to a detox 

center and ultimately ended up with 

severe withdrawal and pain. Tr. 667–68. 

When he was at UCSD, the doctors there 

continued to prescribe him the same 

medications. Tr. 659. Dr. Shurman 

disagreed with Sharp’s detox treatment 

in 2019. Tr. 726–27. 

The standard of care requires that a 

doctor make an attempt to obtain patient 

records, but in this instance, the 

Respondent had D.P. as a patient in the 

past. Tr. 687. It would be a good idea 

to get records, but it is in the 

Respondent’s judgment if he knows the 

patient well.*L Tr. 686. It is also better 

to document any discussion with 

patients, but Dr. Shurman made 

inferences that such discussions were 

had based on the different things 

Respondent did during exams. Tr. 724– 

25. Looking at the prescriptions for D.P., 

[Dr. Shurman opined that] these 

prescriptions were within the standard 

of care. Tr. 687. 

Patient J.K. 

Assuming the Respondent had 

discussions with J.K. about the urine 

drug screen reflecting the presence of 

amphetamine and about her 

prescriptions for medical marijuana, 

and assuming he checked CURES to 

verify the amphetamine prescription,*M

Dr. Shurman opined that it was 

appropriate for the Respondent to 

continue J.K.’s prescriptions despite the 

fact that she was taking marijuana. Tr. 

672–74. However, such discussions 

should be in the medical records.*N Tr. 

727–28. Dr. Shurman has encountered 

circumstances where fentanyl patches 

did not properly adhere to patients, 

which is a common problem. Tr. 675. 

J.K. was also on hormone therapy which 

could cause excessive perspiration. Tr. 

709. Assuming the Respondent had 

discussions with J.K. regarding why the 

fentanyl derivative was not in her 

system, it was within the standard of 

care for him to continue to treat her 

with medication. Tr. 676. Patients will 

not always take medications as 

prescribed and the doctor should look at 

the average of what their patients are 

taking.*O Tr. 677–78. 

The Respondent attempted to treat 

J.K.’s migraine headaches with Botox 

while she was seeing an oncologist for 

her breast cancer. Tr. 699–700. It is 

considered a controversial position, but 

some doctors, including Dr. Shurman 

believe it is appropriate to use higher 

doses of opioids to treat resistant or 

intractable migraines, which is within 

the California standard of care. Tr. 700– 

01. Overall, [Dr. Shurman opined that] 

the Respondent’s prescriptions for J.K. 

were acceptable within the standard of 

practice under the circumstances. Tr. 

702. 

Patient P.S. 

P.S.’s pain scale reporting did not 

change much over time and it would 

have been difficult to taper his 

prescriptions due to his chronic pain 

problems. Tr. 689–91; RX U. Regarding 

the aberrant drug screens, Respondent 

followed the standard of care of P.S. as 

long as he had a discussion with him 

because Respondent followed him 

closely with CURES, urine screens, etc., 

to ensure there is not an ongoing 

problem. Tr. 692–94. Based on a review 

of P.S.’s medical record, P.S. had an 

anxiety disorder. Tr. 695. Overall, the 

prescriptions the Respondent prescribed 

to P.S. were prescribed within the 

acceptable standards of practice under 

the circumstances, as P.S. was a very 

challenging patient. Tr. 699. 

Patient D.L. 

The Respondent treated D.L. with 

opioid medication, benzodiazepines, 

and a sleep medication, Lunesta.37 Tr. 

702, 706. Although there is a black box 

warning about prescribing ‘‘benzos’’ and 

opioids, the doctor may still prescribe 

the combination after considering the 

risks/rewards and following the patient 

carefully. Tr. 706. It was within the 

standard of care for the Respondent to 

continue D.L. on those medications at 

the initial visit because she had colon 

cancer, polyneuropathy, hip pain, and a 

failed spine surgery. Tr. 702–03. As that 

was Respondent’s first time meeting the 

patient, the Respondent would not want 

to promptly start to taper the patient 

and should ‘‘get a feel for them’’ by 

getting a history, urine screens, CURES, 

etc. before making a decision. Tr. 703. 

The Respondent did pursue these urine 

drugs screens and CURES reports in this 

instance.38 Dr. Shurman disagrees with 


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Respondent’s counsel emailed the document to the 

Government’s counsel at the next recess. Tr. 705. 

*PWhen Respondent was asked whether he had 

‘‘any thoughts or opinions about whether or not the 

recordkeeping for these patients in some areas . . . 

was adequate enough for purposes of good 

recordkeeping,’’ he answered ‘‘I would say that 

some areas are appropriate.’’ Tr. 488. Then when 

asked whether ‘‘there are any areas that in your 

opinion, looking back now at these records, that 

you feel are less than adequate for what they should 

be?’’ Respondent answered ‘‘Yes, I do.’’ Id. 

*QWith regard to the treatment plan’s timing for 

titration down from high levels of opioids, 

Respondent believed ‘‘there’s a right time to initiate 

doing some changes to a patient, and I would prefer 

to do it when the patient is able to comply and buy 

in because they’re a lot more stable with their 

current pain or pain and anxiety control.’’ Tr. 771. 

Dr. Munzing’s opinion that every single 

prescription for patient D.L. was below 

the standards of practice and in fact 

[opined that] the Respondent’s 

prescriptions for D.L. were within the 

standard of care. Tr. 707–08. D.L.’s 

reported pain level stayed around five 

or six-of-ten throughout treatment, 

which is an indication that overall the 

treatment was effective for her and is in 

fact a doctor’s goal. Tr. 711. 

Brenton D. Wynn, M.D. (the 

Respondent) 

The Respondent grew up in San Diego 

and graduated from UCLA with a 

bachelor of science in physiological 

sciences. Tr. 469. He attended Howard 

University College of Medicine and 

received his M.D. in 1998. He did his 

first year of preliminary internal 

medicine at Good Samaritan Regional 

Medical Center in Phoenix, Arizona, 

and started his physical medicine and 

rehabilitation residency program at 

Stanford University Medical Center. He 

then went to the Louisiana State 

University Health Science Center for a 

fellowship in musculoskeletal and 

interventional spine medicine. 

In 2004, he went back to San Diego 

and became the only pain physician 

affiliated with Paradise Valley Hospital 

in National City, where he maintained 

the practice for ten years. Tr. 469, 475. 

He is board certified in both physical 

medicine rehabilitation and pain 

medicine. Tr. 470. He then started with 

another group in 2014, where his focus 

was on pain management patients, but 

left that group in May 2016 to begin the 

process of rebuilding his own private 

practice. Tr. 475–76. From 2014–2016, 

he also worked at the Paradise Valley 

Hospital Outpatient Senior Health 

Center, where he did pain management 

or pain medicine. Tr. 476. 

He currently works in outpatient 

medicine, primarily doing 

interventional procedures four days a 

week. He has two nurse practitioners in 

the practice that assist him with the 

evaluations and management of the 

patients. Tr. 477. Eventually, 

Respondent was able to secure his 

practice location separate and apart 

from the Senior Care Facility. Tr. 478. 

He is currently leasing a space in 

National City. He is the only pain 

management doctor that services this 

area of National City, of approximately 

62,000 patients. Tr. 479–80. About sixty 

percent of the Respondent’s patients use 

Medicare, and the vast majority of the 

remaining patients are under some sort 

of IP or managed care plan that is a 

Medi-Cal or Medi-Cal-affiliated 

program. Tr. 480. 

When he was at the Senior Health 

Center, he used the hospital-based 

electronic record system and his 

primary entry method was through 

dictation. Tr. 481. He currently uses 

Practice Fusion, a free internet-based 

electronic health record system, which 

he was using once the four patients 

came to him at the new location. Tr. 

481–82. During this time he worked 

with a receptionist, an office manager, a 

practice manager, medical assistants, a 

biller, and nurse practitioners that were 

hired and staffed through a management 

company but were ‘‘not technically’’ his 

employees. Tr. 483–84. He currently 

uses a scribe to enter information into 

the EMR for better record entry, while 

his nurse practitioners enter the notes 

themselves. Tr. 484–85. 

Since Dr. Wynn received the 

subpoena for this case, he has tried to 

enhance his recordkeeping practices 

and enrolled in courses through the 

University of San Diego School of 

Medicine and the PACE Program that 

focused on recordkeeping and 

prescribing controlled substances. Tr. 

488, 490.*P He has stayed abreast on 

current thinking in his area of chronic 

pain management over the last five 

years by attending conferences, where 

there is a PME available, reaches out to 

fellow colleagues to have dialogues 

about treatment or new ideas, and 

attends educational events where 

pharmaceutical representatives present 

information. Tr. 567. In 2019, he sat and 

recertified for his Pain Boards, which 

required numerous hours of review. Tr. 

567. He also attended multiple national 

meetings. 

The Respondent saw all four of the 

patients at issue in his current practice 

and had been treating them prior to 

establishing his current practice. Tr. 

491–92. All of these patients were 

already prescribed opioids when they 

first met with the Respondent. Tr. 492. 

When patients enter the Respondent’s 

office, they check in at the front with 

the receptionist, and there is a process 

to verify their eligibility, address, and 

insurance information. Tr. 538. Patients 

then fill out a pain diagram and sit in 

the waiting room. Patients then have 

their height, weight, and temperature 

taken and are taken to the exam room, 

where vitals, including blood pressure 

and maybe temperature are taken. 

Medical assistants (hereinafter, MAs) 

ask some of the questions that are done 

on the subjective. That information is 

then discussed with the provider who 

will see them at the visit. The CURES 

report and previous drug screen are 

reviewed if that patient is there for a 

refill visit prior to the provider entering 

the exam room. Tr. 538–39. The 

provider then typically discusses the 

patient’s history and any new or 

ongoing concerns, performs a physical 

exam, reviews any documentation such 

as imaging studies or nerve conduction 

studies or information from a primary 

care doctor, and discusses the treatment 

plan.*Q Tr. 539. Since COVID, the vast 

majority of medication refill visits are 

done through telemedicine. Tr. 539. 

Prior to COVID, it was his customary 

routine to do an exam and put his hands 

on the patient, which could include 

listening to the heart, lungs, and 

respiratory rate, observing their gait, and 

palpating the area of concern. When he 

prescribed a significant amount of 

opioids, he also provided Narcan. Tr. 

753. 

In the beginning of the practice, they 

were still getting acclimated to the 

Electronic Health Records (‘‘EHR’’), so 

some things were missing in the 

medical records, but as time went on, 

there was improvement with the vitals 

‘‘actually making it into the chart and 

the documentation making it into the 

chart.’’ Tr. 540. For instance, earlier in 

the practice, the MAs would write vital 

signs on a sticky note and the 

Respondent did not know if they always 

‘‘ended up in the’’ medical record. Tr. 

540–51. He currently continues to see 

P.S. and D.F. as patients. Tr. 747. None 

of his patients, have experienced the 

risks of overdose, addiction, or 

significant respiratory distress to the 

point that they needed Narcan or to call 

911 while he was treating them. Tr. 

748–49. 

As to all his patients, he believed he 

was within the range of the accepted 

standard of care, setting aside the issue 

of documentation, because he 

conducted a thorough examination at 

each initial visit, reviewed CURES, gave 

urine screens, reviewed any 

documentation provided by previous 

physicians, discussed the treatment 

plan, went through a controlled 

substance agreement, discussed the use 


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39According to Respondent, habituation is a form 

of physical dependence on a drug. Tr. 503. This 

terms tends to be interchanged with the term 

‘‘addiction,’’ which is a behavioral syndrome. Illicit 

drugs appearing in urine screens is the initial most 

common thing that indicates a patient is abusing 

drugs. Tr. 747. Drug metabolites test positive for a 

longer period of time in urine than blood. Tr. 763. 

He would go around patients showing drug-seeking 

behavior, asserting they could not produce a urine 

sample by taking a saliva or blood sample. Tr. 763. 

40At one point the Respondent tried to refer J.K. 

to a sleep medicine specialist for a sleep lab. Tr. 

739–40. 

of Narcan, discussed the risks of opioiduse, and discussed the CDC guidelines. 

Tr. 764–68. Some of the areas of the 

medical records were less than 

adequate. Tr. 488. 

Respondent agreed that the standard 

of care requires sufficient 

documentation in the medical records to 

justify controlled substance 

prescriptions to patients [and requires 

complete and accurate medical records], 

which protects the doctors as much as 

it helps the patients. Tr. 778–80. Doctors 

are also ultimately responsible for 

preparing those complete and accurate 

medical records. Tr. 780. He currently 

serves 600 active patients and has 

approximately 7,000 patient visits 

annually. Tr. 830. 

Patient D.P. 

Patient D.P. was referred to the 

Respondent for pain management in 

approximately 2014. Tr. 493. Patient 

D.P. went to another doctor at some 

point and then returned to the 

Respondent’s care when he opened his 

new practice. Tr. 493–94. When D.P. 

returned, he was on a high level of 

opioids and the Respondent had never 

taken care of any patients who were at 

that high of a level of controlled 

substances prescriptions. Tr. 494–95. 

When D.P. came to the Respondent in 

approximately 2016, the Respondent 

had reservations about taking him on as 

a patient because of the high MME, but 

took him back because he was familiar 

with D.P., he knew he was a reliable 

historian, he had worked with the 

pharmacy where D.P. had received his 

prescriptions, and D.P. understood that 

they would establish a plan to safely 

taper his medication. Tr. 496–97. He 

and D.P. had a discussion that he was 

willing to work with him, but discussed 

the CDC guidelines and D.P.’s opioid 

load and said that the amount 

prescribed would need to be decreased 

to an amount under 1,000 MME. Tr. 

496, 544–45. The Respondent is familiar 

with the concept of informed consent 

and ‘‘in his mind’’ he had a discussion 

with D.P. that was adequate informed 

consent regarding his wound care and 

the risk of habituation,39 overdose, or 

death from overdose due to his high 

MME. Tr. 499–500. 

The Respondent initiated titration at 

some point, but D.P. either would not 

tolerate it or had withdrawal and there 

was an incident where D.P. was 

removed from a plane because he 

looked ill, which the Respondent 

attributes to aggressive titration. Tr. 545. 

After a course of detox, D.P. was placed 

on Suboxone, which did not manage his 

pain at all. Tr. 546. D.P. returned to the 

Respondent and his pain was 

uncontrolled; the Respondent believes 

he tried to continue to manage D.P. on 

the Suboxone, but ultimately had to 

prescribe oxycodone not exceeding 90 

MME. Tr. 546–47, 549. The Respondent 

stated that there was room for 

significant improvement in his 

documentation of D.P.’s care. Tr. 549. 

The Respondent testified that he talks 

to patients about safety issues and 

diversion prevention and emphasizes 

the risks of opioid use, including the 

fact that these patients can be targets for 

theft, assault, and having their 

medication stolen if people learned they 

had those medications. Tr. 500. He 

typically explains the meaning of MME 

in a way the patients can understand. 

Tr. 501. 

Patient D.P. admitted to the 

Respondent that he had over-used some 

his medications at times. Tr. 541–42. 

When this happened, with D.P. as well 

as with other patients, the Respondent 

would review the controlled substance 

agreement with the patient and then 

discuss that is not how the medications 

were intended to be used; he talked 

about safety issues, and explained the 

potential of moving to non-medication 

options for future management if D.P. 

could not get back on track. Tr. 542. The 

Respondent did not discharge D.P. from 

the practice because they discussed 

other treatment options including nerve 

blocks, but ultimately Respondent 

decided to keep D.P. on his 

medications. Tr. 542–43. In particular, 

he had wound care that would be very 

painful when he received debridement 

and he would take more medication 

before and after those debridements. Tr. 

543–44. In such cases, however, the 

Respondent should have discussed and 

documented this in the medical records. 

Tr. 781. 

If D.P. had problems filling his 

prescriptions, he would let the 

Respondent know in most cases. Tr. 

782–83. On August 14, 2019, D.P.’s 

pharmacy started to severely restrict his 

ability to fill his Oxycodone 

prescription by only allowing a 48–72 

hour fill and there is a note stating 

‘‘Cardinal would NOT . . . replenish 

the Oxycodone need for this patient. 

Therefore as an urgent matter, only do 

a 48 to 72-hour prescription for all his 

four oxycodones until his doctor finds 

a different solution.’’ Tr. 783–85. 

Patient J.K. 

Patient J.K. was referred to the 

Respondent and she followed him to the 

group clinic, he ‘‘kind of lost care to her 

directly,’’ and then she was re-referred 

to him after he reestablished his own 

practice. Tr. 549–50. Aside from 

migraines, she had chronic knee pain 

and various joint pain that she 

attributed to her chemotherapy. Tr. 550, 

569, 738. The Respondent evaluated 

whether or not the extent of these 

problems made it appropriate to use 

pain medication to treat these 

conditions. She had previously been 

prescribed an opioid from another 

provider to help manage her migraines 

and the Respondent continued that care. 

Tr. 550–51. He prescribed a Botox 

treatment for her, but due to insurance 

issues he could not get an ongoing 

authorization approved to treat her 

migraines with Botox. Tr. 551, 552, 743– 

44. At some point, the Respondent was 

treating her while she was uninsured 

and when she did receive insurance, it 

was an insurance plan that he had not 

contracted with so she ended up being 

treated by another physician. Tr. 551– 

52. 

Respondent testified that J.K. had 

previous workups with a neurologist in 

the past and had sinus surgery so the 

Respondent did not feel as though he 

needed any imaging studies to treat her 

for migraine headaches. Tr. 552. She 

was initially on a fentanyl patch and he 

continued with that. Tr. 553. She was 

also prescribed Percocet, (as a shortacting breakthrough medication), Soma 

(to diffuse muscle spasms), and Nuvigil 

(to improve excessive daytime 

sleepiness 40). Tr. 553–54, 559. It was 

his custom and practice to discuss any 

risk associated with combining muscle 

relaxants with the other pain control 

medications. Tr. 559. He explained to 

J.K. that this was not a safe medication 

combination and that it is habit-forming 

and addictive and he explained the 

negative effects of opioids in terms of 

overdose and potential death. Tr. 559– 

60, 739. After this discussion, he still 

continued prescribing the medications 

because he believed there was a 

legitimate medical purpose in doing so. 

Tr. 560. He wanted to reduce the Soma 

because he was concerned it was not the 

best medication for her, but it took a 

while for her to ‘‘buy-in on reducing the 

medication.’’ Tr. 560. If J.K. reported her 

pain as being a four or five out of a scale 


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*R Respondent testified that ‘‘every time you 

change a dosing, the insurance requires that you 

submit an authorization, . . . [s]o that in itself can 

delay the process of even initiating a titration when 

you would like to.’’ Tr. 744. 

*SModified for clarity. 

*TModified for clarity. 

*U Respondent agreed that for a patient on highdose opioids, taking a little more than prescribed, 

even if it is to control pain, can be dangerous. Tr. 

781. He further agreed, that if a doctor finds out that 

a patient is taking more than prescribed, he should 

discuss that with the patient and document the 

discussion in the medical records. Id. 

41The tribunal allowed the Respondent’s counsel 

to recall the Respondent to testify regarding this 

exhibit over the objection of the Government’s 

counsel. Tr. 820–21. 

of 10, he saw that as her being stable 

and her pain being controlled. The plan 

was that she would remain stable if he 

did a slow titration. Tr. 561. She also 

reported that the medication would 

allow her to maintain her work duties 

and activities of daily living at home. 

He suspected that J.K. had some 

elements of undiagnosed brain injury 

based her behavioral issues, continued 

headaches, and her history of being the 

victim of physical abuse. Tr. 554. 

Regarding inconsistencies in J.K.’s urine 

drug screen, he believed the 

amphetamine was a prescription 

medication based on how it appeared. 

Tr. 553–54, 740. After inquiring, J.K. 

told him that she was prescribed 

Adderall from her psychiatrist, which 

the Respondent also saw in the CURES 

report. Tr. 555–56. He therefore did not 

have any issues with J.K.’s drug screen 

testing positive for amphetamine 

because he knew it was not an illicit 

drug. Tr. 557. 

The Respondent also recalls times 

when J.K.’s urine screens lacked the 

presence of one or more of her 

prescribed pain medications and he 

recalls having a conversation with her at 

a visit. She stated that she was having 

issues with her fentanyl patches 

adhering due to excessive sweating so 

she would replace them before they 

were due to be changed, which left her 

short prior to the time of her next refill. 

Tr. 557. The Respondent considered 

switching J.K. to an oral medication and 

at some point he did and prescribed 

oxycodone and oxymorphone. Tr. 558. 

At one point, his office was treating 

her despite her not having insurance 

and not charging her for continuity of 

care. Tr. 561–62. On her last visit the 

Respondent wrote her a supply of 

medications that would help her until 

she could get a new provider with her 

new insurance, but she was unable to 

obtain the medications due to an 

authorization issue. Tr. 562. She did not 

understand that the Respondent could 

not fill out the authorization because he 

was not affiliated with her new 

insurance plan and acted out of 

desperation because she was out of 

medication. Tr. 563. He ultimately 

authorized some additional 

prescriptions for her with the 

understanding that she was actually 

without her medication. He did not 

believe she had any intention of 

following through on her suicide 

threats. Tr. 564. 

The Respondent acknowledged that 

some drug screens came back positive 

for THC and [he did not believe it was 

an inconsistent result] because she had 

previously been placed on Marinol 

during her treatment for stage-one breast 

cancer. Tr. 564–65, 781. He discussed 

with her that THC could be a sedative 

or a stimulant depending on what type 

she was using and if it did not come 

from a reputable source, it could be 

laced or tainted, which could be 

dangerous. Tr. 565–66. She was getting 

marijuana from a dispensary and the 

Respondent did not find that her 

concomitant use of marijuana was a 

contraindication for him to prescribe 

her medications for pain management. 

Tr. 566–67, 740. Other providers agree 

with this line of thinking. Tr. 567. 

Furthermore, the chemotherapy J.K. 

underwent could cause residual side 

effects, including prolonged pain 

syndromes. Tr. 738. The Respondent 

carefully monitored her to ensure that 

risks did not develop through frequent 

visits where her vitals were taken and 

discussions were had with her, even 

though these discussions may not be 

reflected in the record. Tr. 745–46. He 

testified that his care of J.K. was within 

the standard of care despite not 

lowering her MME closer to 90 or 100 

because they had a discussion about the 

overall plan to bring her down, but they 

had challenges with insurance *R and 

had various social stressors; he was able 

to ultimately completely titrate her 

completely off benzodiazepines. Tr. 744, 

770–72. Furthermore, she is currently 

on close to 200 MME, which is a 

significant improvement [in safety] and 

his decisions for her care were made 

based on his personal judgment and 

how the patient’s overall quality of life 

is affected. Tr. 772–73. 

Patient D.L. 

D.L. is still the Respondent’s patient. 

Tr. 751. When she returned to the 

Respondent as a patient, she was 

already on [a dose of 100 mg morphine 

sulfate],*S and he had a discussion with 

her about what medications she was on 

and what risks they might pose moving 

forward, which included a discussion of 

the 2016 CDC Guidelines. Tr. 751–52; 

782. He also provided Narcan and 

explained how to use it. Tr. 754–55; GX 

14 at 37. On a November 2016 visit, a 

note indicated, ‘‘Education,’’ which 

Respondent testified meant that he 

would have discussed the combination 

of medications and the high-dose 

opioid. 755–57; GX 14 at 40. He also 

ordered pharmacogentic testing on D.L. 

to understand why she may have 

needed a higher dose of opioids or why 

there were discrepancies in urine 

screens. Tr. 759–60. He learned she had 

an altered gene expression that related 

to how she responded to morphine, but 

he could not change her dose due to 

insurance reasons. Tr. 760. His 

management of D.L. was within the 

range of the accepted standard of care, 

setting aside the issue of 

documentation, because they had 

discussions regarding her treatment 

goals and she was still having 

uncontrolled pain. Tr. 764–65, 769–70. 

Patient P.S. 

The Respondent believes that for P.S., 

he struck a reasonable balance under the 

standard of care between his need to 

have relief, have a quality of life, and 

the risks associated with his pain levels. 

Tr. 773–74. He is still the Respondent’s 

patient, and is currently [at a lower 

MME than he had been] *T and he is 

open to other therapeutic interventions. 

Tr. 774. The Respondent resolved P.S.’s 

inconsistent urine screens by counseling 

him and reassuring him when he was 

being compliant. Tr. 776. The 

Respondent did not think that P.S. was 

abusing his prescriptions, but instead 

thought he had good days and bad days 

with taking his prescriptions.*U The 

Respondent tried to get P.S. in to see a 

psychiatrist. Tr. 776–77. Furthermore, 

sometimes when the Respondent 

changed a patient’s dose, there can be 

issues with the insurance companies or 

authorizations with the pharmacies and 

he would have to ‘‘play their insurance 

games in order to actually get the 

patients treatment the way we’re 

intending,’’ so sometimes it looked as if 

some medications were duplicated 

when they were not. Tr. 778. 

In October of 2020, the Respondent 

prepared a document with the aid of his 

staff and Dr. Shurman to show ongoing 

actions that his practice is taking ‘‘to 

improve the quality of documentation 

and care and compliance with the 

guidelines.’’ Tr. 822–24; RX W.41

[Respondent testified that he is 

implementing the actions currently and 

intends to continue to so do. Tr. 823.] 


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42The Government deferred its closing statement 

to the post-hearing brief. 

*VOn cross-examination, Dr. Munzing testified 

that it was possible, given Respondent’s prior 

relationship with the patients, that the initial 

prescriptions at the first visit when the patients 

returned to Respondent could have been within the 

standard of care on every element other than 

appropriate documentation. Tr. 860–62. 

*W The parties agreed to Joint Stipulations A–U, 

Y–Z, BB, CC, EE, FF, HH, and II. See ALJ Ex. 4, Govt 

Prehearing, at 2–38; ALJX 15, Resp Supp. 

Prehearing, at 1. The RD included many of the 

stipulated facts between the parties, but appears to 

have inadvertently left some out. See RD at 70–110. 

I have omitted the joint stipulations from the text 

of this decision in the interest of brevity, but I 

incorporate fully herein by reference Joint 

Stipulations A–U, Y–Z, BB, CC, EE, FF, HH, and II. 

Closing Statement 42

The Respondent acknowledged there 

was a lack of documentation in this 

case. Tr. 870–71. However, when 

balancing whether it would be 

inconsistent to allow the Respondent to 

continue with his DEA certificate, 

Respondent argued that it was 

important to weigh his experience as a 

pain management physician overall. Tr. 

871. None of his patients had an 

overdose and there were no particular 

complications or adverse effects the 

patients suffered. The record reflects 

that he monitored patients, reviewed 

CURES reports, had patients visit 

frequently, performed frequent urine 

screens, and tried to find alternative 

means of treatment, which reflects what 

is in the public interest and patient 

safety. Tr. 871–72. The Respondent also 

served an underserved population. Tr. 

872. The evidence shows that even 

though the Respondent did not keep 

accurate records regarding informed 

consent discussions with his patients, 

these discussions likely took place. Tr. 

872–73. Patients D.L. and D.P. also 

stated that they had informed consent 

discussions with the Respondent. Tr. 

873. In the big picture, there can be a 

debate between experts about whether 

the prescriptions were within the 

balance of reasonable judgment. Tr. 873. 

The Respondent has put forth 

evidence that he has demonstrated 

efforts to rehabilitate and did not deny 

anything about the records being 

lacking. Tr. 874. According to 

Respondent, the evidence does not 

support the Respondent having his DEA 

certificate revoked. Tr. 875. 

Rebuttal 

Dr. Munzing 

After listening to the testimony from 

Dr. Shurman, Dr. Wiederhold, D.P., 

D.L., and the Respondent, Dr. Munzing 

did not change any of the opinions to 

which he previously testified. Tr. 833– 

35. Dr. Munzing strongly disagreed with 

Dr. Shurman’s opinion regarding the 

acceptability of prescribing 

benzodiazepines and opioids together. 

Tr. 837. Specifically, there are strong 

pushes, based on warnings and 

guidelines from the CDC and FDA that 

doctors should avoid prescribing 

benzodiazepines and opioids together 

and, if it is done, such prescribing 

requires documentation. Tr. 827–38. Dr. 

Munzing did agree with Dr. Shurman 

that keeping a patient on a higher dose 

when he first begins care is consistent 

with Dr. Munzing’s testimony.*V Tr. 

839. Dr. Munzing’s issue with the 

instant case is that the patients were 

maintained at high levels over a period 

of many years. Tr. 839, 856. Dr. 

Munzing also agreed with Dr. 

Shurman’s assertions that chronic 

patients should be slowly tapered. Tr. 

839–40. Ultimately, Dr. Shurman’s 

assertion that there was no lapse in the 

Respondent’s clinical judgment was 

incorrect. Tr. 841. Dr. Munzing also 

reiterated that multiple aberrant drug 

screens are problematic and must be 

documented in the medical records. Tr. 

844. 

Dr. Munzing also reiterated the 

importance of the Respondent failing to 

take vitals at each visit, even if visits are 

weekly, because such frequent visit 

shows that the Respondent believed his 

patients needed close monitoring. Tr. 

852. [According to Dr. Munzing, ‘‘if you 

believe the patient is unstable enough or 

tenuous enough that you need to see the 

patient every week, then you’re 

indicating that you need to more 

intensively see the patient.’’ Tr. 852.] 

Dr. Shurman 

Dr. Shurman testified that it would 

not be extremely dangerous for a patient 

to take medical marijuana with an 

opioid and a benzodiazepine, it should 

just be treated as another medication, 

and it is common for people to be 

prescribed to this combination. Tr. 866. 

The Facts *W

Findings of Fact 

The factual findings below are based 

on a preponderance of the evidence, 

including the detailed, credible, and 

competent testimony of the 

aforementioned witnesses, the exhibits 

entered into evidence, and the record 

before me: 

During the hearing conducted via 

video teleconference from November 

16–20, 2020, the Government 

established the following facts through 

evidence, testimony, or stipulation. 

1. DI has been employed by the DEA 

as a Diversion Investigator for thirty-two 

years. Tr. 21:4–6. 

2. Respondent came to the attention of 

the DEA in October 2018, based on a 

report by a local pharmacist that 

Respondent was excessively prescribing 

controlled substances. Tr. 22:11–17. 

3. Between March 17, 2017, and 

March 19, 2019, Respondent dispensed 

over 590,000 dosage units of schedule 2 

through schedule 5 controlled 

substances. Based on DI’s experience, 

this was an extremely high number of 

dosage units. Tr. 23:19–25—24:1–8. 

4. Between March 17, 2017, and 

March 19, 2019, Respondent dispensed 

almost 190,000 dosage units of various 

strengths of oxycodone, equating to over 

1,700 prescriptions. This represented 

32% of all Respondent’s prescribing 

over this period. Tr. 24:15–25—25:1–3. 

5. Between March 17, 2017, and 

March 19, 2019, Respondent dispensed 

almost 123,000 dosage units of various 

strengths of hydrocodone, equating to 

over 1,370 prescriptions. This 

represented 20% of all Respondent’s 

prescribing over this period. Tr. 25:4–7. 

6. Between March 17, 2017, and 

March 19, 2019, Respondent dispensed 

almost 88,000 dosage units of 

oxycodone with acetaminophen, 

equating to over 922 prescriptions. This 

represented 14% of all Respondent’s 

prescribing over this period. Tr. 25:7– 

10. 

7. Dr. Munzing’s curriculum vitae was 

admitted into evidence as GX 2. Tr. 

61:10–25—62:1–15. He is a licensed 

physician in the State of California, who 

has worked in the field of family 

medicine for nearly 40 years. Tr. 89:14– 

23. 

8. Dr. Munzing received his 

undergraduate degree, a Bachelor of 

Science in Biochemistry, at the 

California State University at Fullerton. 

He received his medical degree from the 

University of California, Los Angeles, in 

1982, and did his residency at Kaiser 

Permanente Medical Center in Los 

Angeles. He became Board Certified in 

Family Medicine in 1985, and that 

certification still current and active. Tr. 

62–63. 

9. Dr. Munzing has been a family 

doctor for 35 years. For the last 32 years 

he has been the Founding Residency 

Director of a Family Medicine 

Residency program, which works in 

close conjunction with every other 

specialty, including Internal Medicine, 

Pediatrics, ObGyn, Anesthesia, and pain 

medicine. Tr. 63. 

10. Dr. Munzing has been working in 

the family medicine department of 

Kaiser Permanente, Orange County, for 

the last 35 years, twice serving as 


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president of the medical staff. In his role 

as president of the medical staff, he was 

responsible for overseeing the 

professionalism and quality of care 

provided by the staff. Tr. 66. 

11. Dr. Munzing has a DEA COR and 

an active clinical practice, prescribing, 

inter alia, opioids, benzodiazepines, and 

other controlled substances when 

indicated. Tr. 64–65. 

12. Dr. Munzing also sits on the 

National Accreditation Board for Family 

Medicine Residency, which accredits all 

of the family medicine residency 

programs in the United States of 

America. Tr. 63–64. 

13. Dr. Munzing has been a Medical 

Expert Consultant for the Medical Board 

of California for approximately 16 years. 

Tr. 64:6–13. 

14. Dr. Munzing has been called upon 

to provide opinions about the 

prescribing of other medical 

professionals, and he has been qualified 

as an expert witness in over 30 cases, 

including in DEA administrative 

hearings. Tr. 67–68. 

15. As a licensed California physician 

who has been practicing in California 

for nearly 40 years, Dr. Munzing is 

familiar with the standard of care for 

prescribing controlled substances in 

California. He also has reviewed 

publications by the Medical Board of 

California that inform his understanding 

of the standard of care, including the 

‘‘Guide to the Laws Governing the 

Practice of Medicine by Physicians and 

Surgeons (7th Edition)’’ (admitted as GX 

3, Tr. 71:2–13); the ‘‘Guidelines for 

Prescribing Controlled Substances for 

Pain,’’ (admitted as GX 4, Tr. 74:4–15); 

the CDC guidelines regarding Morphine 

Milligram Equivalents (GX 5, Tr. 104– 

108); and the FDA black label warning 

concerning prescribing opioids and 

benzodiazepines together (GX 6, Tr. 

113–115). Further, Dr. Munzing 

reviewed several laws and regulations 

that informed his understanding of the 

standard of care. Tr. 68–74. 

16. Dr. Munzing was qualified as an 

expert in Pain Management and as an 

expert in the standard of care for 

prescribing controlled substances in 

California. Tr. 77:4–9. 

17. Dr. Munzing testified that the 

standard of care in California first 

requires that, before prescribing 

controlled substances, a practitioner 

perform a sufficient evaluation of the 

patient, including, a medical history 

and appropriate physical examination. 

This includes an assessment of the 

patient and a determination as to 

whether any additional information is 

needed through, for example, laboratory 

tests, imaging studies, or other studies. 

Then, the doctor comes up with a 

specific assessment or diagnosis or 

likely diagnosis. After which, a doctor 

performs a risk stratification of the 

patient and assesses any other medical 

problems that may contribute to 

management of the patient. Then the 

doctor comes up with a management 

plan specific to the evaluation. Tr. 79. 

18. If the management plan includes 

prescriptions for controlled substances, 

a determination needs to be made 

weighing the potential benefits and risks 

of such treatment. Once the plan is put 

into place, a doctor must monitor the 

patient on a periodic, regular basis. At 

all times, a doctor is attempting to 

mitigate risks to the patient by 

maximizing the benefit of the treatment 

and minimizing the risk. Tr. 79–80. 

19. All of the elements of the 

management plan must be documented 

in detail, so in the future, a reviewer can 

get a detailed and truthful 

understanding about how the patient 

was on a certain date and what the 

reasoning was behind why a patient was 

being managed in a particular way. Tr. 

80:12–21. 

20. These rules regarding the standard 

of care in California apply equally to all 

practitioners, be it family practitioner or 

a doctor who specializes in pain 

management. Tr. 80:22–25. 

21. The ‘‘Guide to the Laws Governing 

the Practice of Medicine by Physicians 

and Surgeons (7th Edition)’’ applies to 

all physicians in California, regardless 

of specialty. Tr. 82:11–17; GX3. 

22. [The standard of care requires 

that] a patient should give informed 

consent regarding the risks and benefits 

of the use of controlled substances. 

Patients need to be fully aware of the 

risks they face and whether any 

alternatives exist to the proposed 

treatment, particularly when prescribing 

opiates. Tr. 85–86. 

23. The standard of care in California 

requires that for patients at the high 

dosages of opioids, like those in this 

case, the doctor should obtain vital 

signs, blood pressure, heart rate, 

respiratory rate and perform an 

examination on the pertinent area at 

every appointment. Tr. 87:1–15, Tr. 

851:5–15, 852:2–10. 

24. Standard of care in California 

requires periodic review of the patient 

and constantly trying to assess the 

patient’s risk and whenever possible, try 

to mitigate the risk by either bringing 

down medication dosages or using 

alternative treatments. Tr. 87:16–25. 

25. When a doctor increases the 

dosage of a medication, it increases the 

risk to the patient. As such, the standard 

of care requires the doctor to welldocument why the increase is necessary 

and document that the patient has been 

informed of and is aware that the 

increased medication poses an 

increased risk. Tr. 88:1–16. 

26. The California standard of care 

requires that all physicians keep 

accurate and complete records for all 

aspects of patient care. GX 3 at 61; GX 

4 at 22; Tr. 88–89. 

27. The Medical Board of California’s 

Guideline for Prescribing Controlled 

Substances for Pain (GX4) applies to all 

doctors, regardless of specialty. Tr. 90– 

91. 

28. Patients taking benzodiazepines 

and opioids are at an increased risk for 

respiratory depression, particularly in 

elderly patients. Physicians should 

consider a trial of benzodiazepine 

tapering in patients concomitantly using 

opioids or other respiratory depressant 

medications. If a trial of tapering is not 

indicated or is unsuccessful, opioids 

should be titrated more slowly and at 

lower doses. GX 4 at 12; Tr. 92–93. 

29. As treatment progresses, a 

physician must monitor the patient. A 

practitioner must periodically update 

the patient’s medical history, conduct 

further physical examinations, and 

obtain updated information regarding 

the etiology of a patient’s state of health. 

The practitioner must periodically 

review the course of treatment, ascertain 

how the patient is responding thereto, 

determine if continued treatment is 

appropriate or if the treatment plan 

needs to be modified, and document the 

rationale for any modifications. The 

practitioner must also periodically reinquire into the patient’s urine drug 

screens. Tr. 96–97. 

30. Maintaining a high MME dose of 

medication for a patient, simply because 

that patient was on a high MME dose 

prior to treatment with a particular 

doctor, does not meet the standard of 

care in California. Tr. 109:17–21. 

31. The standard of care and usual 

course of professional practice in 

California for treatment of pain and 

prescribing of controlled substances 

does not depend on whether the 

prescribing physician is a pain care 

specialist. Tr. 115:9–15. Appropriate 

documentation is a well-known, 

fundamental requirement in the medical 

community. GX 3 at 61; GX 4 at 22. 

32. The practitioner must also comply 

with all relevant California law. Tr. 

460–61, 462–63. 

33. Between March 13, 2017, and 

October 29, 2019, Respondent issued 

Patient D.P. the controlled substance 

prescriptions stipulated to in ALJ Ex. 4. 

34. Dr. Munzing concluded that the 

prescribing of these controlled 

substances to Patient D.P. between 

March 13, 2017, and October 29, 2019, 

violated the standard of care in 


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California in numerous ways and was 

not done in the usual course of 

professional practice. Tr. 120–77. 

35. At times, D.P. was prescribed a 

dosage in excess of 6,000 MME per day. 

Dr. Munzing testified he believed it to 

be the highest MME he has ever seen. 

Tr. 118:1–5. 

36. Between March 13, 2017, and 

October 29, 2019, Respondent 

prescribed D.P. approximately 1.4 

million milligram dosage units of 

opioids per year, which was the highest 

Dr. Munzing has ever seen. Tr. 119:19– 

25. 

37. The Controlled Substance 

Agreement executed by D.P. is not 

adequate to demonstrate informed 

consent by D.P. to the risks associated 

by Respondent’s high-dose prescribing. 

GX 8 at 239; Tr. 121–22. 

38. Over the course of his treatment, 

D.P received exceedingly high MME 

doses and exceedingly high numbers of 

pills, approximately 160 tablets per day. 

Dr. Munzing testified he had never seen 

a patient receive anywhere near that 

number of tablets per day. Tr. 123:19– 

25. 

39. Between March 13, 2017, and 

October 29, 2019, D.P.’s MME levels 

fluctuated between 3,500 MME to over 

6,000 MME, at times going down to 

4,000 MME and then back up to 6,000 

MME. Tr. 124:5–11. 

40. Once D.P.’s care was taken over by 

Pain Management at U.C. San Diego in 

late 2019, D.P.’s MME dropped fairly 

quickly to 2,700 MME and has been 

slowly tapered to 1,000 MME and is 

now in the 700 MME range. Tr. 124:12– 

24. 

41. The medical histories taken by 

Respondent for D.P. are poor and do not 

meet the standard of care in California. 

The medical records do not contain 

sufficient information and there is no 

documentation of attempts to mitigate 

D.P.’s symptoms or mitigate D.P.’s risk 

over time. Tr. 125:1–11. 

42. Respondent acted outside the 

standard of care for D.P. by failing to 

adequately manage a patient on 

incredibly high doses of opioids and by 

failing to take vital signs at most of 

D.P.’s medical visits. Vital signs were 

taken at approximately 20% of D.P.’s 

visits, which, for a patient on such high 

doses of opioids, was outside the 

standard of care in California. Tr. 

125:12–23. 

43. Respondent’s medical histories for 

D.P. do not even come close to meeting 

the standard of care to justify the 

incredibly high doses of opioids he 

prescribed to D.P. Tr. 125–26. 

44. D.P.’s self-assessed pain score has 

not changed significantly despite being 

dropped from Respondent’s incredibly 

high 6,000 MME to UC San Diego’s 

1,000 MME range. Tr. 126–27. 

45. Dr. Munzing testified that, while 

there is no upper limit on the amount 

of opioids a patient can be prescribed by 

a practitioner, it would be hard to justify 

a dosage of over 500 MME. Dr. Munzing 

further testified that he has spoken with 

many pain management practitioners 

and lectured to a lot of pain 

management practitioners, and he has 

never had any pain management 

practitioner say that 1,000 MME is 

medically acceptable, much less two, 

three, four, five, or six thousand MME. 

Tr. 128–29. 

46. On April 18, 2017, Respondent 

prescribed D.P. 280 tablets of 10 mg 

oxycodone, 280 tablets of 15 mg 

oxycodone, 280 tablets of 20 mg 

oxycodone, and 280 tablets of 30 mg 

oxycodone for 4,500 MME per day and 

160 tablets per day (do not fill until 

April 26, 2017). Tr. 129–31; ALJ Ex. 4 

at Stip. Y, 5–8; GX 9 at 2. Dr. Munzing 

testified this level of MME is 

astronomical. He testified he had never 

seen a dosage that high, including in his 

review of over 150 overdose deaths. Dr. 

Munzing also testified that 

Respondent’s medical records were 

nowhere close to justifying this level of 

opioid prescribing. Lastly he testified 

that these prescriptions were written 

outside the usual course of professional 

practice and were not for a legitimate 

medical purpose. Tr. 132–34; GX 8 at 

246–53. 

47. D.P. received a second set of 

prescriptions on April 18, 2107, for 280 

tablets of 10 mg oxycodone, 280 tablets 

of 15 mg oxycodone, 280 tablets of 20 

mg oxycodone, and 280 tablets of 30 mg 

oxycodone that could be filled on April 

18, 2017. These are the same dosages as 

the prescriptions to be filled on April 

26, 2017, another 4,500 MME per day 

and 160 tablets per day. ALJ Ex. 4 at 

Stip. Y, 9–12; GX 9 at 3. Dr. Munzing 

testified that Respondent’s medical 

records lacked sufficient information to 

justify this level of opioid prescribing, 

including no record of vital signs or an 

examination. Dr. Munzing testified that 

these prescriptions were written outside 

the usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 134–36; GX 8 at 261–69. 

48. Between March 17, 2017, and 

January 3, 2018, Respondent repeatedly 

prescribed D.P. a combination of 280 

tablets of 10 mg oxycodone, 280 tablets 

of 15 mg oxycodone, 280 tablets of 20 

mg oxycodone, and 280 tablets of 30 mg 

oxycodone. ALJ Ex. 4 at Stip. Y, 1–105. 

Each time the MME was 4,500. Dr. 

Munzing testified these prescriptions 

were outside the standard of care as 

there was no attempt to taper D.P.’s 

opioid dose, and in fact, Respondent 

increased the opioid dosage by adding 

oxymorphone, 40 mg, 150 tablets, and 

oxycodone prescriptions on numerous 

occasions, including on May 30, 2017, 

July 3, 2017, and July 11, 2017. Between 

March 17, 2019, and January 3, 2018, 

Respondent acted outside the standard 

of care by failing to justify either the 

high doses of opioids or the spikes in 

MME by adding oxymorphone to D.P.’s 

prescriptions. Over this time period 

Respondent acted outside the standard 

of care by failing to document D.P.’s 

vital signs. Dr. Munzing testified that 

the prescriptions written to D.P. 

between March 17, 2019, and January 3, 

2018, were written outside the usual 

course of professional practice and were 

not for a legitimate medical purpose. Tr. 

136–43, GX 8 at 261–69, 372–78, 534– 

38. 

49. On May 30, 2017, July 3, 2017, 

and July 11, 2017, Respondent 

prescribed D.P. 280 tablets of 10 mg 

oxycodone, 280 tablets of 15 mg 

oxycodone, 280 tablets of 20 mg 

oxycodone, 280 tablets of 30 mg 

oxycodone, and 150 tablets of 

oxymorphone 40 mg. This was a dosage 

of 5,100 MME. Tr. 140:9; ALJ Ex. 4 at 

Stip. Y, 21–23, 25–26, 38–47. 

50. On November 13, 2018, 

Respondent prescribed D.P. a 

combination of 245 tablets of 10 mg 

oxycodone, 270 tablets of 15 mg 

oxycodone, 285 tablets of 20 mg 

oxycodone, and 260 tablets of 30 mg 

oxycodone. ALJ Ex. 4 at Stip. Y, 259– 

62. This represents an increase in 

Respondent’s opioid dosage for D.P., 

which Dr. Munzing testified was 

‘‘astronomically high.’’ Tr. 149–50. Dr. 

Munzing testified that in issuing these 

prescriptions, Respondent acted outside 

the standard of care by failing to 

document a reason to continue to 

prescribe D.P. this level of opioids, 

failing to properly taper D.P. off such 

high opioid doses, and failing to 

document vital signs. Dr. Munzing 

testified that these prescriptions were 

written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 149–51; 

GX 8 at 1352–57; ALJ Ex. 4 at Stip. Y, 

259–62. 

51. On December 18, 2018, 

Respondent prescribed D.P. a 

combination of 280 tablets of 10 mg 

oxycodone, 309 tablets of 15 mg 

oxycodone, 325 tablets of 20 mg 

oxycodone, and 297 tablets of 30 mg 

oxycodone. ALJ Ex. 4 at Stip. Y, 259– 

62. This represents an increase in 

Respondent’s opioid prescribing to D.P., 

which Dr. Munzing testified was 

‘‘astronomically high.’’ Tr. 149–50. Dr. 

Munzing testified that in issuing these 


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prescriptions, Respondent acted outside 

the standard of care by failing to 

document a reason to continue to 

prescribe D.P. this level of opioids, 

failing to properly taper D.P. off such 

high opioid doses, and failing to 

document vital signs. Dr. Munzing 

testified that these prescriptions were 

written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 151–52; 

GX 8 at 1447–52; ALJ Ex. 4 at Stip. Y, 

259–62. 

52. On January 10, 2019, Respondent 

prescribed D.P. a combination of 245 

tablets of 10 mg oxycodone, 270 tablets 

of 15 mg oxycodone, 285 tablets of 20 

mg oxycodone, and 260 tablets of 30 mg 

oxycodone. ALJ Ex. 4 at Stip. Y, 291– 

94. Dr. Munzing testified that in issuing 

these prescriptions, Respondent acted 

outside the standard of care by failing to 

document a reason to continue to 

prescribe D.P. this level of opioids, 

failing to properly taper D.P. off such 

high opioid doses, failing to document 

informed consent, failing to document 

an appropriate medical examination, 

and failing to document vital signs. Dr. 

Munzing testified that these 

prescriptions were written outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 152–54; GX 8 at 1480–84; 

ALJ Ex. 4 at Stip. Y, 291–94. 

53. Between December 11, 2018, and 

April 30, 2019, Respondent consistently 

prescribed D.P. a combination of at least 

245 tablets of 10 mg oxycodone, 270 

tablets of 15 mg oxycodone, 285 tablets 

of 20 mg oxycodone, and 260 tablets of 

30 mg oxycodone. ALJ Ex. 4 at Stip. Y, 

275–378. 

54. On February 11, 2019, Respondent 

prescribed D.P. a combination of 245 

tablets of 10 mg oxycodone, 270 tablets 

of 15 mg oxycodone, 285 tablets of 20 

mg oxycodone, 260 tablets of 30 mg 

oxycodone, 105 tablets of 10 mg 

oxycodone, 114 tablets of 15 mg 

oxycodone, 120 tablets of 20 mg 

oxycodone, and 114 tablets of 30 mg 

oxycodone. ALJ Ex. 4 at Stip. Y, 311– 

18. This amounts to approximately 

6,144 MME. Dr. Munzing testified that 

in issuing these prescriptions, 

Respondent acted outside the standard 

of care by failing to document a reason 

to continue to prescribe D.P. this level 

of opioids, failing to document the 

reason for the eight oxycodone 

prescriptions, failing to properly taper 

D.P. off such high opioid doses and 

instead significantly escalating his MME 

level, failing to document informed 

consent, failing to document an 

appropriate medical examination, and 

failing to document vital signs. Dr. 

Munzing testified that these 

prescriptions were written outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 155–57; GX 8 at 1543; ALJ 

Ex. 4 at Stip. Y, 327–42, 361–68. 

55. Respondent continued this level 

of prescribing on March 4, 2019, March 

13, 2019, and April 15, 2019. ALJ Ex. 4 

at Stip. Y, 327–42, 361–68. This 

amounted to 6,000 MME per day. Tr. 

158:3–6. Dr. Munzing testified that 

Respondent acted outside the standard 

of care by failing to document a reason 

to continue to prescribe D.P. this level 

of opioids. Dr. Munzing testified that 

these prescriptions were written outside 

the usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 157–59; GX 8 at 1607; ALJ 

Ex. 4 at Stip. Y, 327–42, 361–68. 

56. Between April 2019 and June 

2019, Respondent prescribed D.P. 

combinations of 10 mg oxycodone, 15 

mg oxycodone, 20 mg oxycodone, and 

30 mg oxycodone that caused D.P.’s 

daily MME to bounce between 4,000 

MME and 6,000 MME. Tr. 159:4–19; ALJ 

Ex. 4 at Stip. Y, 351–423. Dr. Munzing 

testified that on each occasion, 

Respondent acted outside the standard 

of care by failing to document a reason 

to continue to prescribe D.P. this level 

of opioids. Dr. Munzing testified that 

these prescriptions were written outside 

the usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 159; ALJ Ex. 4 at Stip. Y, 

351–423. 

57. On July 8, 2019, Respondent 

prescribed D.P. a combination of at 233 

tablets of 10 mg oxycodone, 265 tablets 

of 15 mg oxycodone, 115 tablets of 20 

mg oxycodone, 103 tablets of 30 mg 

oxycodone, 100 tablets of 10 mg 

oxycodone, 111 tablets of 15 mg 

oxycodone, 270 tablets of 20 mg 

oxycodone, 240 tablets of 30 mg 

oxycodone, 14 tablets of oxymorphone 

40 mg, and 6 tablets of oxymorphone 40 

mg. ALJ Ex. 4 at Stip. Y, 429–38. This 

is over 6,000 MME per day. Tr. 160:7– 

23. Dr. Munzing testified that in issuing 

these prescriptions, Respondent acted 

outside the standard of care by failing to 

document a reason to continue to 

prescribe D.P. this level of opioids. Dr. 

Munzing testified that these 

prescriptions were written outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 160–61; ALJ Ex. 4 at Stip. 

Y, 429–38. 

58. There is a gap in Respondent’s 

medical records for D.P. from June 25, 

2019 until September 30, 2019. Tr. 161– 

162; GX 8 at 1847. 

59. Respondent continued to issue 

prescriptions for 10 mg oxycodone, 15 

mg oxycodone, 20 mg oxycodone, and 

30 mg oxycodone in July and August 

2019. Stip. Y, 424–76. During this time, 

Respondent acted outside the standard 

of care by failing to taper D.P.’s opioid 

levels, which ranged between 3,000 and 

6,000 MME. Tr. 163:4–17. Respondent 

acted outside the standard of care by 

issuing prescriptions to D.P. without 

any medical record documentation. Tr. 

162–63. Dr. Munzing testified that due 

to these failures, these prescriptions 

were written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 162–63; 

ALJ Ex. 4 at Stip. Y, 424–76. 

60. UC San Diego doctors described 

Respondent’s opioid prescribing to D.P. 

as ‘‘massive amounts,’’ ‘‘very high 

amounts,’’ and ‘‘exorbitant amounts.’’ 

Tr. 165:2–6. Over time, UC San Diego 

stabilized D.P.’s multitude of medical 

conditions and was then able to put him 

on a steady tapering program which 

reduced his MME to 1,000 and then 

down to the 700 MME range. Tr. 165, 

167. 

61. Respondent acted outside the 

standard of care by prescribing 

extremely high doses of opioids without 

referring D.P. for a mental health 

evaluation. Tr. 175:12–25. 

62. Dr. Munzing testified that the 

overall care provided by Respondent for 

D.P. was incredibly dangerous and 

certainly not within the standard of 

care. In fact, Dr. Munzing testified D.P. 

is lucky to be alive. Tr. 176:17–23. 

63. Dr. Munzing testified that, based 

on the extremely high MMEs, the failure 

to provide a medical justification, and 

the failure to properly document 

treatment including vital signs and 

appropriate physical examinations, all 

of the stipulated prescriptions 

Respondent issued to D.P. were issued 

outside the usual course of professional 

practice and were not for a legitimate 

medical purpose. Tr. 176–77. 

64. Dr. Munzing testified that 

Respondent acted outside the standard 

of care in prescribing to P.S. because he 

found no evidence in the medical 

records that Respondent had informed 

consent discussions with P.S. to make 

him aware of the specific risks from 

taking high dose opioids, including 

addiction, overdose or death. Tr. 178, 

182. 

65. Respondent failed to take or 

document vital signs in approximately 

50% of his visits with P.S. and 

performed or documented a 

musculoskeletal examination less than 

20% of the time; these were necessary 

because P.S. was being treated for 

musculoskeletal complaints with opioid 

medications. Tr. 183:12–21. Respondent 

failed to obtain a significant medical 

history regarding P.S.’s anxiety before 


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prescribing him anti-anxiety 

medications, lorazepam and alprazolam, 

and failed to try non-controlled 

substances to treat P.S.’s anxiety. Tr. 

183–84. 

66. Respondent acted outside the 

standard of care in California by 

prescribing P.S. high dose opioids, mid300 MME range, in combination with a 

benzodiazepine; these prescriptions did 

not correlate to any significant 

improvement in P.S.’s condition, but the 

combination put P.S. at significant risk. 

Tr. 184–85. 

67. On February 17, 2017, Respondent 

prescribed to P.S. 45 tablets of morphine 

sulfate ER 30 mg, 45 tablets of morphine 

sulfate ER 60 mg, and 45 tablets of 

Dilaudid (hydromorphone), 8 mg and 30 

tablets lorazepam 1 mg. This was a 

dosage of 366 MME. GX 11 at 1; ALJ Ex. 

4 at Stip. BB, 1–4; Tr. 185–86. Dr. 

Munzing testified that 366 MME is 

classified as very high; four times the 

CDC’s recommended high of 90. Tr. 

185:5–15; GX 5. 

68. Dr. Munzing testified that in 

issuing these prescriptions, Respondent 

acted outside the standard of care by 

failing to document a reason to 

prescribe P.S. this level of opioids, 

failing to document a reason for 

prescribing the dangerous combination 

of high dose opioids with a 

benzodiazepine, failing to document 

informed consent, failing to document 

an appropriate medical examination, 

failing to properly perform a psychiatric 

examination, and failing to assess the 

increased risk to P.S. due to his age and 

history of acute embolism and deep 

venous thrombosis. Dr. Munzing 

testified that these prescriptions were 

written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 187– 

189; GX 10 at 46; ALJ Ex. 4 at Stip. BB, 

1–4. 

69. Between February 17, 2017, and 

September 16, 2019, Respondent 

prescribed to P.S. 45 tablets of morphine 

sulfate ER 30 mg, 45 tablets of morphine 

sulfate ER 60 mg, and 45 tablets of 

hydromorphone 8 mg, and a 

benzodiazepine (either lorazepam 1 mg 

or alprazolam 0.5 mg). ALJ Ex. 4 at Stip. 

BB, 1–175. 

70. Based on a review of P.S.’s entire 

medical record Dr. Munzing testified 

that Respondent acted outside the 

standard of care by failing to document 

a reason to prescribe P.S. this level of 

opioids, failing to document a reason for 

prescribing a benzodiazepine, failing to 

document a reason for prescribing the 

dangerous combination of high dose 

opioids with a benzodiazepine, failing 

to document informed consent, failing 

to taper P.S. off of high dose opioids, 

failing to document an appropriate 

medical examination, failing to properly 

perform a psychiatric examination, and 

failing to use a non-benzodiazepine to 

treat P.S.’s anxiety. Dr. Munzing 

testified that these prescriptions were 

written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 190–95; 

ALJ Ex. 4 at Stip. BB, 1–175. 

71. P.S. had an aberrant urine drug 

screen on March 3, 2017, (GX 10 at 67– 

78) when P.S. tested negative for 

lorazepam, which was inconsistent with 

P.S.’s February 17, 2017 lorazepam 

prescription. Tr. 196–97; ALJ Ex. 4 at 

Stip. BB, 4. Respondent acted outside 

that standard of care by failing to 

address or resolve the aberrant result. 

Tr. 198–200; see also, e.g. GX 10, at 89. 

72. P.S. had aberrant urine drug 

screens on the following dates: 

a. April 14, 2017, (GX 10 at 106–08) 

when P.S. tested negative for lorazepam, 

which was inconsistent with P.S.’s 

March 29, 2017 lorazepam prescription. 

Tr. 200–01; ALJ Ex. 4 at Stip. BB, 8. 

b. June 19, 2017, (GX 10 at 195–97) 

when P.S. tested negative for lorazepam, 

which was inconsistent with P.S.’s June 

5, 2017 lorazepam prescription. Tr. 201– 

02; ALJ Ex. 4 at Stip. BB, 15. 

c. August 7, 2017, (GX 10 at 275–77) 

when P.S. tested negative for lorazepam, 

which was inconsistent with P.S.’s July 

25, 2017 lorazepam prescription. Tr. 

202–03; ALJ Ex. 4 at Stip. BB, 32. 

d. September 12, 2017, (GX 10 at 324– 

26) when P.S. tested negative for 

alprazolam, which was inconsistent 

with P.S.’s August 16, 2017 alprazolam 

prescription. Tr. 203–04; ALJ Ex. 4 at 

Stip. BB, 40. 

e. October 10, 2017, (GX 10 at 359– 

61) when P.S. tested negative for 

alprazolam, which was inconsistent 

with P.S.’s September 12, 2017 

alprazolam prescription. Tr. 209–10; 

ALJ Ex. 4 at Stip. BB, 44. P.S also tested 

negative for morphine, which was 

inconsistent with P.S.’s morphine 

prescriptions on September 12, 2017. 

Tr. 210:7–12; ALJ Ex. 4 at Stip. BB, 41– 

43. 

f. November 3, 2017, (GX 10 at 389– 

91) when P.S. tested negative for 

alprazolam, which was inconsistent 

with P.S.’s October 23, 2017 alprazolam 

prescription. Tr. 211–12; ALJ Ex. 4 at 

Stip. BB, 48. P.S also tested negative for 

morphine, which was inconsistent with 

P.S.’s morphine prescriptions on 

October 23, 2017. Tr. 212:18–23; ALJ Ex. 

4 at Stip. BB, 45–47. 

g. September 11, 2018, (GX 10 at 754– 

56) when P.S. tested negative for 

alprazolam, which was inconsistent 

with P.S.’s August 28, 2018 alprazolam 

prescription. Tr. 213; ALJ Ex. 4 at Stip. 

BB, 114. P.S also tested negative for 

morphine, which was inconsistent with 

P.S.’s morphine prescriptions on August 

14, 2018. Tr. 213–14; ALJ Ex. 4 at Stip. 

BB, 111–13. 

h. October 3, 2018, (GX 10 at 793–95) 

when P.S. tested negative for 

alprazolam, which was inconsistent 

with P.S.’s September 25, 2018 

alprazolam prescription. Tr. 214–15; 

ALJ Ex. 4 at Stip. BB, 122. P.S also 

tested negative for morphine, which was 

inconsistent with P.S.’s morphine 

prescriptions on September 25, 2018. 

Tr. 215:6–11; ALJ Ex. 4 at Stip. BB, 119– 

21. P.S. tested positive for alcohol, 

which is an aberrant result because the 

P.S.’s Controlled Substance Agreement 

stated a patient should not be drinking 

alcohol with these medications. There is 

an increased risk to a patient for 

overdose or death when combining 

alcohol and controlled substance 

medications. Tr. 217:7–25. 

i. December 21, 2018, (GX 10 at 911– 

13) when P.S. tested negative for 

alprazolam, which was inconsistent 

with P.S.’s December 10, 2018 

alprazolam prescription. Tr. 222–23; 

ALJ Ex. 4 at Stip. BB, 132. P.S also 

tested negative for morphine, which was 

inconsistent with P.S.’s morphine 

prescriptions on December 10, 2018. Tr. 

212:18–23; ALJ Ex. 4 at Stip. BB, 133– 

35. 

j. March 26, 2019, (GX 10 at 1105–07) 

when P.S. tested negative for 

alprazolam, which was inconsistent 

with P.S.’s March 1, 2019 alprazolam 

prescription. Tr. 224; ALJ Ex. 4 at Stip. 

BB, 144. 

78. Respondent acted outside that 

standard of care by failing to address, 

resolve, and document each of the above 

aberrant drug screen results. Tr. 198– 

204, 211, 213–14, 218–21, 224; see also, 

e.g. GX 10 at 807–11. 

79. Dr. Munzing testified that P.S.’s 

numerous aberrant drug screens and 

Respondent’s failure to address or 

resolve those aberrant drug screens 

contributed to his opinion that 

Respondent’s prescriptions to P.S. were 

outside the usual course of professional 

practice and were not for a legitimate 

medical purpose. Tr. 200–04, 211, 222. 

80. Respondent acted outside the 

standard of care in prescribing 

controlled substances to J.K. by failing 

to provide appropriate treatment and 

examinations for her migraine pain. 

Respondent prescribed controlled 

substance but failed to do a proper 

neurological examination, including 

imaging scans, CT, or MRI, to ensure 

that other diagnoses are not being 

missed. Tr. 229–31. 

81. Responded acted outside the 

standard of care when prescribing the 


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relevant controlled substances to J.K. by 

failing to take a comprehensive medical 

history including an examination of 

mental health issues, failing to address 

and document J.K.’s use of alcohol and 

other drugs in the past, failing to 

perform a neurological exam or refer to 

a neurological subspecialist for J.K.’s 

migraine treatment, failing to take vital 

signs, and prescribing controlled 

substances without resolving numerous 

aberrant drug screens. Tr. 232–33. 

82. Respondent’s medical records for 

J.K. did not document that she was 

being treated for cancer pain, as her 

cancer treatment ended in 2014. Tr. 

233–34. 

83. Dr. Munzing testified that 

Respondent acted outside the standard 

of care when prescribing opioids to J.K. 

by failing to properly document 

justification for the high dosages of 

opioids he prescribed to J.K. Tr. 234:2– 

7. 

84. Dr. Munzing testified that 

Respondent acted outside the standard 

of care when prescribing opioids and 

benzodiazepines to J.K. by failing to 

obtain and document proper informed 

consent for the risks of high dose 

opioids (300 to 400 MME), as well as the 

increased risk posed by Respondent 

prescribing a combination of opioids 

and benzodiazepines. Tr. 235:7–22. 

85. On November 28, 2016, 

Respondent prescribed to J.K. a fentanyl 

patch, 75 micrograms per hour (change 

every 4 hours), 180 tablets of Percocet 

10/325 mg, and 30 tablets of Soma 350 

mg. This is 366 MME. GX 13 at 1; ALJ 

Ex. 4 at Stip. EE, 1–3; Tr. 236–37. Dr. 

Munzing testified that 366 MME is 

classified as very high, four times the 

recommended CDC limit of 90. Tr. 185, 

237; GX 5. 

86. Dr. Munzing testified that in 

issuing the November 28, 2016 

prescriptions to J.K., Respondent acted 

outside the standard of care by failing to 

document a reason to prescribe J.K. this 

level of opioids, failing to document a 

reason for prescribing the dangerous 

combination of high dose opioids with 

Soma, failing to document informed 

consent, and failing to document an 

appropriate medical examination. Dr. 

Munzing also testified that J.K.’s 

expressed pain level of 4 did not justify 

this high dose of opioids and possibly 

not even a low dose of opioids. Dr. 

Munzing testified that these 

prescriptions were written outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 235–41; GX 13 at 1; GX 12 

at 3–8; ALJ Ex. 4 at Stip. EE, 1–3. 

87. On January 19, 2017, Respondent 

prescribed J.K. a fentanyl patch with 12 

micrograms per hour, a fentanyl patch 

with 50 micrograms per hour, a fentanyl 

patch with 75 micrograms per hour, 90 

tablets of Percocet 10/325 mg (two week 

supply), and 15 tablets of Soma 350 mg. 

GX 13 at 2; ALJ Ex. 4 at Stip. EE, 4–8. 

This was 440 MME. Tr. 242–43; GX 12 

at 30. Respondent failed to document a 

justification for the increase in opioid 

medication prescribed to J.K. GX 12 at 

29–34; Tr. 242–43. Dr. Munzing testified 

that Respondent failed to perform an 

appropriate examination, failed to 

document J.K.’s present illness, and put 

J.K. at much higher risk based on 

minimal information. Id. As such, Dr. 

Munzing testified that these 

prescriptions were written outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. Id.; ALJ Ex. 4 at Stip. EE, 

4–8. 

88. Respondent prescribed J.K. a 

combination of fentanyl patch, Percocet 

10/325 mg, and Soma 350 mg, on a 

number of occasions between November 

28, 2016, and March 14, 2017. ALJ Ex. 

4 at Stip. EE, 1–14; GX 13 at 1–5. Dr. 

Munzing testified, based on a review of 

all of J.K.’s medical records, that on 

each occasion, Respondent failed to 

justify the very high doses of opioids 

prescribed to J.K. and failed to justify 

the dangerous combination of opioids 

with Soma. As such, Dr. Munzing 

testified that these prescriptions were 

written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Id.; Tr. 240– 

46. 

89. On August 18, 2017, Respondent 

prescribed J.K. 180 tablets of Percocet 

10/325 mg, 60 tablets of oxymorphone 

ER 40 mg, 60 tablets of OxyContin 40 

mg, and 60 tablets of Soma, 350 mg. ALJ 

Ex. 4 at Stip. EE, 19–22; GX 13 at 9. This 

is approximately 450 MME. Tr. 244:1– 

15. 

90. Dr. Munzing testified that in 

issuing the August 18, 2017 

prescriptions to J.K., Respondent acted 

outside the standard of care by failing to 

document a reason to prescribe J.K. this 

level of opioids, failing to taper J.K. off 

high dose opioids and in fact increasing 

her dosage, failing to document a reason 

for prescribing the dangerous 

combination of high dose opioids with 

Soma, failing to document informed 

consent, failing to document an 

appropriate medical examination, and a 

failing to document a justification for 

switching J.K. from a fentanyl patch to 

oxymorphone and OxyContin. As such, 

Dr. Munzing testified that the August 

18, 2017 prescriptions were written 

outside the usual course of professional 

practice and were not for a legitimate 

medical purpose. Tr. 243–47; GX 13 at 

9; GX 12 at 109–16; ALJ Ex. 4 at Stip. 

EE, 19–22. 

91. On November 10, 2017, 

Respondent prescribed J.K. 180 tablets 

of Percocet 10/325 mg, 60 tablets of 

oxymorphone ER 40 mg, 60 tablets of 

OxyContin 40 mg, and 90 tablets of 

Soma 350 mg. ALJ Ex. 4 at Stip. EE, 23– 

26; GX 13 at 10–12. This was 

approximately 450 MME. Tr. 244, 247. 

92. Dr. Munzing testified that in 

issuing the November 10, 2017 

prescriptions to J.K., Respondent acted 

outside the standard of care by failing to 

document a reason to prescribe J.K. this 

level of opioids, failing to taper J.K. off 

high dose opioids, failing to document 

a reason for prescribing the dangerous 

combination of high dose opioids with 

Soma, and failing to document informed 

consent. Dr. Munzing also testified that 

J.K.’s expressed pain level of 4 did not 

justify this high dose of opioids and 

possibly not even a low dose of opioids. 

As such, Dr. Munzing testified that the 

November 10, 2017 prescriptions were 

written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 247–48; 

GX 13 at 10–12; GX 12 at 129–35; ALJ 

Ex. 4 at Stip. EE, 23–26. 

93. On January 8, 2018, Respondent 

prescribed J.K. 180 tablets of Percocet 

10/325 mg, 60 tablets of oxymorphone 

ER 40 mg, 60 tablets of OxyContin 40 

mg, and 90 tablets of Soma 350 mg. ALJ 

Ex. 4 at Stip. EE, 29–32; GX 13 at 14– 

16. This was approximately 450 MME. 

Tr. 244, 248. 

94. Dr. Munzing testified that in 

issuing the January 8, 2018 

prescriptions to J.K., Respondent acted 

outside the standard of care by failing to 

document a reason to prescribe J.K. this 

level of opioids, failing to taper J.K. off 

high dose opioids, failing to document 

a reason for prescribing the dangerous 

combination of high dose opioids with 

Soma, failing to provide an objective 

assessment and plan, failing to record 

vital signs, and failing to document 

informed consent. Dr. Munzing also 

testified that Respondent failed to 

record a pain level for J.K. As such, Dr. 

Munzing testified that the January 8, 

2018 prescriptions were written outside 

the usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 248–49; GX 13 at 10–12; 

GX 12 at 144–48; ALJ Ex. 4 at Stip. EE, 

29–32. 

95. On February 9, 2018, Respondent 

prescribed J.K. 180 tablets of Percocet 

10/325 mg, 60 tablets of oxymorphone 

ER 40 mg, 60 tablets of oxycodone 36 

mg, and 120 tablets of Soma, 350 mg. 

ALJ Ex. 4 at Stip. EE, 33–36; GX 13 at 

17–20. This is 430 MME. Tr. 250:14–18. 


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96. Dr. Munzing testified that in 

issuing the February 9, 2018 

prescriptions to J.K., Respondent acted 

outside the standard of care by failing to 

document a reason to prescribe J.K. this 

level of opioids, failing to taper J.K. off 

high dose opioids, failing to document 

a reason for prescribing the dangerous 

combination of high dose opioids with 

Soma, failing to record vital signs, 

failing to document an objective 

assessment, failing to provide 

information about alcohol use, failing to 

document the subjective/objective 

assessment and plan in the medical 

records, failing to document reasoning 

for changing J.K.’s opioid medications, 

and failing to document informed 

consent. As such, Dr. Munzing testified 

that the February 9, 2018 prescriptions 

were written outside the usual course of 

professional practice and were not for a 

legitimate medical purpose. Tr. 249–55; 

GX 13 at 17–20; GX 12 at 149–56; ALJ 

Ex. 4 at Stip. EE, 33–36. 

97. On October 16, 2018, Respondent 

prescribed J.K. 10 fentanyl patches 75 

mg, 120 tablets of morphine sulfate IR 

15 mg, 120 tablets of Soma 350 mg, 180 

tablets of Percocet 10/325 mg, and 60 

tablets of morphine sulfate ER 60 mg. 

ALJ Ex. 4 at Stip. EE, 54–57; GX 13 at 

36–37. This is 330 MME. Tr. 255:9–23. 

98. Dr. Munzing testified that in 

issuing the October 16, 2018 

prescriptions to J.K., Respondent acted 

outside the standard of care by failing to 

document a reason to prescribe J.K. this 

level of opioids, failing to taper J.K. off 

high dose opioids despite J.K. having 

left-over opioids from previous 

prescriptions, failing to document a 

reason for prescribing the dangerous 

combination of high dose opioids with 

Soma, failing to record vital signs, 

failing to document an appropriate 

examination, failing to address the fact 

that J.K. indicated she is not following 

Respondent’s dosing instructions as she 

was taking left-over medications, failing 

to provide information about alcohol 

use, failing to provide an objective 

assessment or plan, failing to document 

informed consent, and for prescribing 

controlled substance despite J.K. having 

possible suicidal ideations. As such, Dr. 

Munzing testified that the October 16, 

2018 prescriptions were written outside 

the usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 255–61; GX 13 at 36–37; 

GX 12 at 272–75; ALJ Ex. 4 at Stip. EE, 

54–57. 

99. [J.K. had aberrant urine drug 

screens on the following dates:] 

a. April 27, 2017, (GX 12 at 62–64) 

when J.K. tested positive for THC and 

amphetamines, neither of which were 

prescribed to J.K. by Respondent. Tr. 

261–66. 

b. May 12, 2017, (GX 12 at 74–76) 

when J.K. tested positive for 

amphetamines, which were not 

prescribed to J.K. by Respondent. Tr. 

267–68. 

c. September 15, 2017, (GX 12 at 109– 

11) when J.K. tested positive for 

amphetamines, which were not 

prescribed to J.K. by Respondent. Tr. 

269:5–13. 

d. February 9, 2018, (GX 12 at 159– 

61) when J.K. tested positive for THC 

and amphetamines, neither of which 

were prescribed to J.K. by Respondent. 

Tr. 270–71. 

e. March 19, 2018, (GX 12 at 180–82) 

when J.K. tested positive for THC and 

amphetamines, neither of which were 

prescribed to J.K. by Respondent. Tr. 

273:5–14. 

f. June 4, 2018, (GX 12 at 221–23) 

when J.K. tested positive for THC and 

amphetamines, neither of which were 

prescribed to J.K. by Respondent. Tr. 

274, 276. 

g. July 31, 2018, (GX 12 at 241–43) 

when J.K. tested positive for THC and 

amphetamines, neither of which were 

prescribed to J.K. by Respondent. Tr. 

277–78. 

100. Respondent acted outside that 

standard of care by failing to address or 

resolve the above aberrant results. Tr. 

198–200, 247–50, 266–67, 268–73, 277– 

79; GX 12 at 67–70, 80–83, 125–28, 165– 

68, 185–92, 227–31, 247–50. 

101. Dr. Munzing testified that each of 

J.K.’s [unresolved] aberrant drug screens 

contributed to his opinion that 

Respondent’s prescriptions to J.K. were 

outside the usual course of professional 

practice and not for a legitimate medical 

purpose. Tr. 267, 279. 

102. Based on Dr. Munzing’s review 

of J.K.’s oncology records, he was able 

to confirm that Respondent’s opioid 

prescriptions to J.K. were not related to 

[treatment of end stage cancer]. Tr. 279– 

81. 

103. Dr. Munzing testified that 

Respondent’s prescribing to D.L. did not 

meet the standard of care in California. 

The controlled substance prescriptions 

issued to D.L. were not medically 

justified as prescribed and were not 

issued in the usual course of 

professional practice. Further, 

Respondent’s medical histories for D.L. 

were not consistent with the standard of 

care due to their brevity and lack of 

detail. The histories did not include 

even limited information regarding a 

mental health or alcohol and drug use. 

The medical history also lacks necessary 

details regarding any chronic medical 

problems D.L. has and how they might 

interact with the controlled substances 

prescribed by Respondent. Tr. 282–83. 

104. On January 23, 2018, Respondent 

prescribed D.L. 60 tablets of lorazepam 

1 mg, 240 tablets of Percocet 10/325 mg, 

60 tablets of morphine sulfate ER 100 

mg, 90 tablets of morphine sulfate IR 30 

mg, 21 tablets of oxymorphone HCl 5 

mg, and 30 tablets Lunesta 3 mg. ALJ 

Ex. 4 at Stip. HH, 1–6; GX 15 at 12–17. 

This is 455 MME. Tr. 285–86. 

105. Lunesta poses a risk of habit 

forming addiction. It is also a 

respiratory depressant, which, when 

added to an opioid prescription, 

increases the risk of overdose or 

overdose death. Tr. 286:13–21. 

106. Combining opioid, Lunesta and 

benzodiazepine prescriptions creates an 

even greater risk to a patient due to the 

combination of multiple respiratory 

depressants. Tr. 287:1–11. 

107. Dr. Munzing testified based on 

his review of D.L.’s medical records that 

the high MME, the combination of the 

controlled substances, and the risks 

associate with prescribing these 

combinations to an elderly patient 

makes the January 23, 2018 

prescriptions issued to D.L. outside the 

usual course of professional practice 

and not for a legitimate medical 

purpose. Tr. 287; ALJ Ex. 4 at Stip. HH, 

1–6; GX 15 at 12–17. 

108. On February 23, 2018, 

Respondent prescribed to D.L. 60 tablets 

of lorazepam 1 mg, 240 tablets of 

Percocet 10/325 mg, 60 tablets of 

morphine sulfate ER 100 mg, 120 tablets 

of morphine sulfate IR 30 mg, and 30 

tablets Lunesta 3 mg. ALJ Ex. 4 at Stip. 

HH, 7–11; GX 15 at 18–22; Tr. 288:1–8. 

109. In issuing the February 23, 2018 

prescriptions to D.L., Respondent acted 

outside the standard of care by failing to 

justify the increase in morphine sulfate 

30 mg from 90 to 120 tablets, failing to 

document an appropriate examination, 

failing to justify the overall level of 

opioid prescribing to D.L., failing to 

justify the lorazepam prescription, and 

failing to document informed consent 

for the significant risk to the patient 

with this combination of controlled 

substances. As such, Dr. Munzing 

testified that the February 23, 2018 

prescriptions to D.L. by Respondent 

were prescribed outside the usual 

course of professional practice and were 

not for a legitimate medical purpose. 

ALJ Ex. 4 at Stip. HH, 7–11; GX 15 at 

18–22; Tr. 289–90; GX 14 at 355–60. 

110. On March 23, 2018, Respondent 

prescribed to D.L. 60 tablets of 

lorazepam 1 mg, 240 tablets of Percocet 

10/325 mg, 60 tablets of morphine 

sulfate ER 100 mg, 120 tablets of 

morphine sulfate IR 30 mg, and 30 


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tablets of Lunesta 3 mg. ALJ Ex. 4 at 

Stip. HH, 12- 16; GX 15 at 23–27. 

111. In issuing the March 23, 2018 

prescriptions to D.L., Respondent acted 

outside the standard of care by failing to 

justify in the medical records the high 

level of opioid prescribing to D.L., 

failing to document a justification for 

the combination of high dose opioids 

with the Lunesta and the 

benzodiazepine, failing to document a 

physical exam and the fact that D.L. 

described her pain level only at a 5. As 

such, Dr. Munzing testified that the 

March 23, 2018 prescriptions to D.L. by 

Respondent were prescribed outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. ALJ Ex. 4 at Stip. HH, 12–16; 

GX 15 at 23–27; Tr. 289–90; GX 14 at 

368–73. 

112. On May 4, 2018, Respondent 

prescribed to D.L. 60 tablets of 

lorazepam 1 mg, 210 tablets of Percocet 

10/325 mg, 60 tablets of morphine 

sulfate ER 100 mg, 120 tablets of 

morphine sulfate IR 30 mg, and 30 

tablets Lunesta 3 mg. This was 

approximately 420 MME. ALJ Ex. 4 at 

Stip. HH, 17–21; GX 15 at 28–31; Tr. 

293–294. 

113. In issuing the May 4, 2018 

prescriptions to D.L., Respondent acted 

outside the standard of care by failing to 

justify in the medical records the high 

level of opioid prescribing to D.L., 

failing to document a justification for 

the combination of high dose opioids 

with the Lunesta and the 

benzodiazepine, failing to make any 

efforts to taper D.L.’s morphine levels, 

and in fact, increasing those levels since 

2016, and failing to document a 

physical exam. As such, Dr. Munzing 

testified that the May 4, 2018 

prescriptions issued to D.L. by 

Respondent were outside the usual 

course of professional practice and were 

not for a legitimate medical purpose. 

ALJ Ex. 4 at Stip. HH, 17–21; GX 15 at 

28–31; GX 14 at 405–09; Tr. 294. 

114. On May 31, 2018, Respondent 

prescribed to D.L. 240 tablets of 

Percocet 10/325 mg, 60 tablets of 

morphine sulfate ER 100 mg, 120 tablets 

of morphine sulfate IR 30 mg. This was 

approximately 435 MME. ALJ Ex. 4 at 

Stip. HH, 22–24; GX 15 at 32–34; Tr. 

295. 

115. In issuing the May 31, 2018 

prescriptions to D.L., Respondent acted 

outside the standard of care by failing to 

justify in the medical records the 

increased number of Percocet tablets, 

failing to justify in the medical records 

the high level of opioid prescribing to 

D.L. particularly because D.L.’s pain 

was only at a pain level of 5 out of 10, 

failing to taper D.L.’s high level of 

opioids, and failing to document a 

physical exam. As such, Dr. Munzing 

testified that the May 31, 2018 

prescriptions issued to D.L. by 

Respondent were outside the usual 

course of professional practice and were 

not for a legitimate medical purpose. 

ALJ Ex. 4 at Stip. HH, 22–24; GX 15 at 

32–34; GX 14 at 440–45; Tr. 295–98. 

116. On July 31, 2018, December 4, 

2018, and January 3, 2019, Respondent 

prescribed to D.L. 60 tablets of 210 

tablets of Percocet 10/325 mg, 60 tablets 

of morphine sulfate ER 100 mg, 120 

tablets of morphine sulfate IR 30 mg, 

and 30 tablets Lunesta 3 mg. On July 31, 

2018 (OK to fill August 9, 2018), 

Respondent prescribed to D.L. 60 tablets 

of 210 tablets of Percocet 10/325 mg, 60 

tablets of morphine sulfate ER 100 mg, 

120 tablets of morphine sulfate IR 30 

mg. ALJ Ex. 4 at Stip. HH, 25–39. 

117. In issuing these prescriptions to 

D.L., Respondent acted outside the 

standard of care by failing to justify in 

the medical records the high level of 

opioid prescribing, failing to document 

a justification for the combination of 

high dose opioids with the Lunesta, 

failing to make any efforts to taper D.L.’s 

morphine levels, failing to document 

vital signs for each visit, and failing to 

document a physical exam. As such, Dr. 

Munzing testified these prescriptions to 

D.L. were issued outside the usual 

course of professional practice and were 

not for a legitimate medical purpose. 

ALJ Ex. 4 at Stip. HH, 25–39; Tr. 298– 

301. 

118. D.L. had an aberrant urine drug 

screen on March 23, 2018, (GX 14 at 

379–81) when D.L. tested negative for 

oxycodone, which was inconsistent 

with D.L.’s February 23, 2018 

oxycodone prescription. Tr. 302; ALJ 

Ex. 4 at Stip. HH, 9. D.L. also tested 

negative for lorazepam, which was 

inconsistent with D.L.’s lorazepam 

prescription on February 23, 2018. Tr. 

302; ALJ Ex. 4 at Stip. HH, 7. 

Respondent acted outside that standard 

of care by failing to address or resolve 

the aberrant results. Tr. 302–03; GX 14 

385–90. 

119. D.L. had an aberrant urine drug 

screen on April 20, 2018, (GX 14 at 395– 

97) when D.L. tested negative for 

oxycodone, which was inconsistent 

with D.L.’s March 23, 2018 oxycodone 

prescription. Tr. 303; ALJ Ex. 4 at Stip. 

HH, 14. D.L. also tested negative for 

lorazepam, which was inconsistent with 

D.L.’s lorazepam prescription on March 

23, 2018. Tr. 303–04; ALJ Ex. 4 at Stip. 

HH, 12. Respondent acted outside that 

standard of care by failing to address or 

resolve the aberrant results. Tr. 304–05; 

GX 405–09. 

120. D.L. had an aberrant urine drug 

screen on January 31, 2019, (GX 14 at 

577–79) when D.L. tested negative for 

oxycodone, which was inconsistent 

with D.L.’s January 3, 2019 oxycodone 

prescription. Tr. 305–06; ALJ Ex. 4 at 

Stip. HH, 38. Respondent acted outside 

that standard of care by failing to 

address or resolve the aberrant results. 

Tr. 307–08; GX 588–93, 609–13. 

121. Dr. Munzing testified that D.L.’s 

aberrant drug screens and Respondent’s 

failure to address or resolve the aberrant 

drug screens were facts that contributed 

to his opinion that Respondent’s 

prescriptions to D.L. were outside the 

usual course of professional practice 

and were not for a legitimate medical 

purpose. Tr. 211, 303. 

122. Due to the importance of 

ensuring a patient has given informed 

consent regarding treatment, including 

prescriptions for controlled substances, 

the standard of care in California 

requires that practitioners document in 

the medical records specifically what 

was discussed with a patient and 

specifically what risks and benefits the 

patient was informed of prior to the 

patient’s agreement to the treatment or 

receipt of controlled substances. Tr. 

460–62. 

123. Respondent testified that in his 

medical practice, his documentation of 

certain areas of patient care did not 

meet the standard of care. Tr. 488, 490. 

124. Patient D.P. testified that, when 

seen by nurse practitioners at 

Respondent’s practice, they did not 

necessarily discuss the risks or issues 

with taking high dose opioid 

medications. Tr. 524:12–22. 

125. Patient D.P. testified that he did 

not have his vital signs taken at every 

medical visit with Respondent. Tr. 

525:8–11. 

126. Patient D.P. testified that 

Respondent did not conduct a full 

physical exam at each of D.P. visits. Tr. 

525:15–20. 

127. Patient D.P. testified he was able 

to calculate the MME for his opioid 

prescriptions. He calculated that his 

MME with the doctor treating him prior 

to Respondent was between 4,500 and 

4,800. Tr. 534–35. 

128. Patient D.P. testified he did not 

know how high his MME level was with 

the opioid medications prescribed by 

Respondent. Tr. 535:9–12. 

129. Patient D.P. testified his knew 

his current MME level to be 752. Tr. 

535:16–17. 

130. Respondent testified he 

suspected J.K. to have an undiagnosed 

brain injury, and he admitted that he 


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*X This fact is not material to my decision in this 

matter; it appears to assert failures in Respondent’s 

medical treatment of J.K. that extend beyond 

Respondent’s failures with regard to prescribing 

controlled substances. 

*Y Remaining text moved to the Sanctions section 

infra or omitted for brevity and clarity. *ZOmitted text pursuant to supra n.*D. 

did not assess or treat the brain injury.*X

Tr. 554:2–16. 

131. Dr. Mark Wiederhold, Dr. Joseph 

Shurman, and Respondent all confirmed 

that the standard of care requires a 

doctor to have complete and accurate 

documentation of the patient’s 

treatment in the patient’s medical 

records. Tr. 595, 719–20, 779. 

132. Dr. Mark Wiederhold, Dr. Joseph 

Shurman, and Respondent confirmed 

that the standard of care requires patient 

medical records to contain sufficient 

documentation to justify controlled 

substance prescriptions issued to that 

patient. Tr. 595, 720, 779–80. 

133. Dr. Mark Wiederhold, Dr. Joseph 

Shurman, and Respondent confirmed 

that the standard of care requiring 

complete and accurate documentation 

in a patient’s medical record is for the 

protection, not only of the patient, but 

for the protection of the doctor as well. 

Tr. 595, 720, 780. 

134. Dr. Mark Wiederhold, Dr. Joseph 

Shurman, and Respondent confirmed 

that a doctor is ultimately responsible 

for preparing complete and accurate 

medical records. Tr. 595–96, 720, 780. 

135. Dr. Mark Wiederhold, Dr. Joseph 

Shurman, and Respondent confirmed 

that doctors are responsible for 

reviewing their patient’s medical 

records to assure that the records 

created by the doctor are accurate and 

complete. Tr. 596, 780. 

136. Dr. Joseph Shurman testified that 

it is much easier to taper off immediate 

release opioids than off the extended 

release opioids. Tr. 685:16–20. 

137. Ultimately, Dr. Shurman testified 

he spent approximately 10 hours 

reviewing over 4,000 pages of medical 

records in this case. Tr. 719:7–15; GX 8, 

10, 12, 14. 

138. Dr. Joseph Shurman confirmed 

that doctors must justify their use of 

high dose opioids in the medical 

records. Tr. 721:1–4. 

139. On the basis of his review of the 

D.P. medical records, Dr. Shurman 

found no evidence that Respondent 

documented any discussions he had 

with D.P. regarding the various risks 

associated with taking high dose 

opioids, including the risk of death. Tr. 

722–24. 

140. Dr. Shurman testified that a long 

term goal for a patient on high-dose 

opioids would be to attempt to 

gradually taper the patient off the highdose opioids. Tr. 725:12–16. 

141. Dr. Shurman testified that the 

standard of care for a pain doctor in San 

Diego is measured by what a reasonable 

pain specialist would do in the San 

Diego area. Tr. 733:13–25. 

142. Dr. Munzing, Respondent’s two 

experts, and Respondent all agreed that 

the standard of care in California 

requires sufficient documentation in the 

medical record to justify controlled 

substance prescriptions. Tr. 89–90, 245, 

595, 720, 779–80. 

143. In May 2019, D.P. was seen by 

Respondent or someone in Respondent’s 

office on a weekly basis. Tr. 782:19–22. 

D.P. went to Respondent’s office on May 

21, 2019, May 29, 2019, June 4, 2019, 

June 11, 2019, June 17, 2019, and June 

25, 2019. Tr. 782–83. 

144. D.P. would notify Respondent if 

D.P. had any problems filling any of his 

prescriptions. Tr. 783:2–5. 

145. In August 2019, D.P.’s pharmacy 

began to severely restrict his ability to 

fill oxycodone prescriptions at that 

pharmacy. Tr. 783:6–10; GX 9 at 397. 

146. As of August 14, 2019, the 

pharmaceutical distributor Cardinal 

would not replenish the Respondent’s 

oxycodone prescriptions issued to D.P. 

GX 9 at 397; Tr. 784–85. 

147. Due to Cardinal’s refusal to 

replenish Respondent’s oxycodone 

prescriptions to D.P., the pharmacy 

would only fill a 48–72 hour 

prescription for all four oxycodone 

prescriptions issued by Respondent. Id. 

Analysis 

Findings as to Allegations 

The Government alleges that the 

Respondent’s COR should be revoked 

and any applications should be denied, 

because as recently as September 16, 

2019, Respondent violated federal and 

California law by issuing prescriptions 

for controlled substances outside the 

usual course of professional practice 

and not for a legitimate medical 

purpose. ALJ Ex. 1, p. 3, ¶ 6. The 

Government further alleges that the 

Respondent’s conduct reflects negative 

experience in prescribing with respect 

to controlled substances under 21 U.S.C. 

823(f)(2), and shows that Respondent 

has failed to comply with applicable 

federal and state laws relating to 

controlled substances under 21 U.S.C. 

823(f)(4). ALJ Ex. 1, p. 2, ¶ 2. 

In the adjudication of a revocation or 

suspension of a DEA COR, the DEA 

bears the burden of proving that the 

requirements for such revocation or 

suspension are satisfied. 21 CFR 

1301.44(e).*Y

California Law 

The applicable laws in this case 

include: *Z Cal. Health & Safety Code 

§ 11153(a), requiring that a 

‘‘prescription for a controlled substance 

shall only be issued for a legitimate 

medical purpose by an individual 

practitioner practicing in the usual 

course of his or her professional 

practice;’’ Cal. Bus. & Prof. Code 

§ 2242(a) which includes in the 

definition of unprofessional conduct 

subject to sanction, ‘‘[p]rescribing, 

dispensing, or furnishing [controlled 

substances] without an appropriate 

prior examination and a medical 

indication’’); and Cal. Bus. & Prof. Code 

§ 725(a), which includes in the 

definition of unprofessional conduct 

subject to sanction, ‘‘[r]epeated acts of 

clearly excessive prescribing, 

furnishing, dispensing, or administering 

of drugs . . . .’’ 

Failure To Maintain Complete and 

Accurate Records 

[The ‘‘Guide to the Laws Governing 

the Practice of Medicine by Physicians 

and Surgeons,’’ requires that a 

practitioner ‘‘keep accurate and 

complete records, including but not 

limited to, records of the patient’s 

medical history, physical examinations 

of the patient, the treatment plan 

objectives and the treatments given, and 

the rationale for any changes in 

treatment.’’ GX 3, at 59. Not 

surprisingly, the failure to maintain 

accurate and complete patient records 

itself is outside the usual course of 

professional practice and represents a 

violation of the California standard of 

care. Tr. 89.] The Respondent concedes, 

[though not unequivocally,] that he 

failed to maintain complete and 

accurate patient charts [in ‘‘some 

areas,’’] which he agreed is required by 

the standard of care. Tr. 488, 779. 

Beyond the lack of detail, there is 

evidence of missing records. He has 

acknowledged [at least some 

recordkeeping] failures, has taken steps 

to educate himself as to this critical 

aspect of the standard of care, and has 

credibly vowed to correct this failure. 

Tr. 822–24; RX W. 

Dr. Munzing’s opinions and 

conclusions regarding the Respondent’s 

failure to appropriately document 

within the charts are fully credible. [Dr. 

Munzing opined that to meet the 

standard of care in California, a provider 

must ensure that the medical history, 

examination, other evaluations, 

treatment plans, objectives, informed 

consent, treatments, medications, 


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43 [Omitted for brevity and relevance.] 

*AA Remaining text omitted for legal clarity. 

44 [Text from the body and from the footnote 

omitted for legal clarity.] 

*BB The RD included an extensive write up of the 

OSC’s allegations pertaining to each of the four 

individuals at issue prior to discussing each 

individual. The allegations are set forth clearly in 

the OSC, see ALJ Ex. 1, and are summarized above; 

therefore, for brevity, I have omitted each of the 

four sections outlining the allegations pertaining to 

each of the four individuals. The ALJ’s analysis of 

those allegations remains. 

45 [Omitted pursuant to n.*BB.] 

*CC Some text has been moved or omitted from 

this paragraph for clarity. 

*DD Sentence relocated and additional text 

omitted for clarity. 

46Although disputed during the hearing, even 

with the use of oximetrics at visits, I accept Dr. 

Munzing’s opinion that vital signs should have 

been taken at each of D.P.’s visits, due to the high 

levels of MME and his concurrent medical issues. 

rationale for prescribing, and agreement 

with the patient are well-documented in 

the medical records. Tr. 89–90. He 

further testified that the standard of care 

required the resolution of aberrant drug 

screens to be well documented before 

continuing to prescribe. Tr. 99, 310–11. 

Dr. Munzing repeatedly opined that 

Respondent acted beneath the standard 

of care with regard to documentation in 

many of the categories where 

documentation was required for each of 

the four individuals. For D.P. alone, Dr. 

Munzing testified that the documented 

medical history was ‘‘actually pretty 

poor,’’ Tr. 125, that ‘‘the documentation 

was far below what was necessary [to] 

justify the incredibly high dosing,’’ Tr. 

126, ‘‘there’s no vital signs, there’s no 

examination, there’s [a] limited amount 

of information . . . [and] the 

documentation is inadequate . . . and 

we still don’t have an informed 

consent.’’ Tr. 132, 154.] 

I find that the Government has proven 

the allegations as to the Respondent’s 

failure to appropriately document 

within the patients’ medical records as 

to each of the subject patients.43 The 

failure to document is closely related to 

a practitioner’s responsibility to 

establish informed consent.*AA

The Government expert, Dr. Munzing, 

appropriately based many of his 

opinions on the absence of supporting 

notes in the patient chart, applying the 

truism, ‘‘if it is not documented, it did 

not happen.’’ Tr. 406. [Dr. Munzing 

testified, that ‘‘[i]f one doesn’t document 

something and there’s no other way to 

verify it, then you can’t necessarily infer 

that it’s happened.’’ Tr. 405–06. This 

opinion is consistent with prior DEA 

decisions, stating, based on credible 

expert testimony, that ‘‘a physician may 

not expect to vindicate himself through 

oral representations at the hearing about 

his compliance with the standard of 

care that were not documented in 

appropriately maintained patient 

records.’’ Lesly Pompy, M.D., 84 FR 

57749, 57760 (2019). The RD stated that, 

because in this case there was] credible 

testimony from patients and credible 

testimony from the Respondent 

regarding aspects of undocumented but 

otherwise appropriate treatment 

protocol, [the ALJ was] not prepared to 

accept the blanket conclusion that 

because Respondent failed to include 

treatment notes in the record, such 

treatment was not provided.44 [I do not 

agree with the ALJ’s suggestion that 

because a few undocumented actions 

were corroborated by testimony, all of 

the undocumented actions must have 

occurred in accordance with 

Respondent’s testimony. Here, the 

testimony from the two testifying 

patients was limited and corroborated 

only a few of the undocumented 

actions, such as obtaining informed 

consent. The vast majority of 

Respondent’s actions remained 

uncorroborated by either documentary 

evidence or testimony.] 

The Government argues that the 

failure to document alone renders the 

resultant prescriptions illegitimate 

under the standard of care, and 

therefore unjustified. Although the 

Respondent may indeed have performed 

certain treatment protocols that were 

not documented in the medical records, 

I accept the Government’s conclusion 

that the failure to document alone 

violates the standard of care. The 

Government also alleges a number of 

clinical failings by the Respondent. 

These will be addressed as well. 

Discussion as to Patient D.P.*BB 45

The major dispute between the parties 

regarding D.P. was the Respondent’s 

failure to titrate D.P. from the 

astronomical levels of opioids on which 

D.P. came to the Respondent, 3,000 

MME per day. As D.P. was a returning 

patient and well-known to the 

Respondent, the Respondent decided to 

provide treatment even though he had 

never treated a patient who was 

prescribed such high levels of opioids. 

The Respondent and his expert, Dr. 

Shurman, both recognized the 

importance of reducing D.P.’s MME. 

D.P. testified that he was ‘‘reluctan[t]’’ 

to lower his dosage because he was 

functioning pretty well and his pain 

range was between a two-to-four out of 

ten. Tr. 520. The Respondent testified 

that D.P. did not tolerate titration, either 

suffering withdrawal or manifesting 

physical reactions when attempts were 

made. The Respondent attempted 

alternative treatment, and took positive 

measures, such as providing D.P. with 

Narcan, but ultimately decided to 

continue D.P. on the opioid medication 

regimen. Additionally, there was an 

admission by D.P. to the Respondent 

that he had taken medication not as 

prescribed. An insurance company 

stepped in and greatly restricted the 

pharmacy’s ability to fill the subject 

prescriptions. Rather than re-evaluating 

his treatment strategy, the Respondent 

adjusted his prescribing schedule to 

work around that restriction. Ultimately, 

although Sharp Hospital’s attempt at 

titration failed as too rapid, UC San 

Diego Pain Management successfully 

titrated D.P. down to 700 MME.*CC

[Dr. Shurman and Dr. Munzing both 

testified that the standard of care 

required Respondent to try to taper 

down D.P.’s dosage slowly. Tr. 146–48, 

653–54. Instead of attempting titration 

as required by the standard of care], the 

patient chart reveals a sporadic 

treatment strategy, with MME levels 

[first increasing] and then alternating 

between 3,500 and 6,000 MMEs.*DD [Dr. 

Munzing testified that Respondent’s 

prescribing was beneath the standard of 

care because ‘‘rather than tapering, [he] 

episodically increases the dosages,’’ and 

there was no documented titration plan. 

Tr. 137, 145–46. Dr. Shurman excused 

the high MME levels Respondent 

prescribed to D.P. without titrating 

because he concluded Respondent’s 

monitoring of D.P. was sufficient to 

ensure D.P. remained relatively safe. Tr. 

658. This position is not convincing 

over Dr. Munzing’s credible testimony. 

I cannot find that monitoring, assuming 

for the sake of argument that it was 

sufficient, can overcome Respondent’s 

failure to document medical 

justification for prescriptions as high as 

6,000 MME and failure to document a 

treatment plan for titration. Dr. Munzing 

testified that these levels were the 

highest MME that he had ever seen. Tr. 

117. He further described this level of 

prescribing to be ‘‘incredibly 

dangerous.’’ Tr. Tr. 177.] 

I find that the evidence supports [Dr. 

Munzing’s opinion] that the 

Respondent’s [prescribing to] D.P. was 

dangerous and outside the standard of 

care. Dr. Munzing’s opinions relating to 

the Respondent’s evaluation and 

monitoring of D.P. and the Respondent’s 

overall [prescribing to] D.P. as being 

outside the standard of care are 

accepted.46

The Government has sustained its 

burden as to the allegations relating to 

the Respondent’s [issuance of the 

prescriptions at issue to] D.P. 


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*EE I do question how Respondent could credibly 

testify both that J.K. had previous workups from a 

neurologist such that no other imaging studies were 

necessary, and that Respondent suspected that J.K. 

had some elements of undiagnosed brain injury 

based her behavioral issues, continued headaches, 

and her history of being the victim of physical 

abuse. Tr. 552, 554. Ultimately the evidence on this 

issue was not fully developed by expert testimony 

and is not material to my decision in this matter. 

*FFText modified for clarity. *GG Text omitted for clarity. 

Discussion as to Patient J.K. 

There were several disputes as to the 

propriety of [the prescriptions issued to] 

J.K. Again, Dr. Munzing’s conclusions 

are based on his review of the medical 

chart. Dr. Munzing criticized 

Respondent for failing to order a 

neurological exam to determine if J.K.’s 

migraines could be caused by a tumor 

or other organic issue. This was 

confronted by the Respondent’s 

memory, undocumented in the chart 

[and not supported by other testimony 

or evidence], that J.K. had a ‘‘workup 

with a neurologist’’ in the past. The 

Respondent had seen J.K. when he 

worked for a medical group prior to 

reopening his own practice. It seems 

unusual that the Respondent did not 

obtain J.K.’s medical records from the 

prior group, which requires the tribunal 

to assume that she had this prior 

workup. I will give him the benefit of 

the doubt that he properly evaluated her 

need for further testing.*EE

The next controversy relates to the 

Respondent’s use of opioids to treat 

intractable migraines, which Dr. 

Munzing characterized as being beneath 

the standard of care [because ‘‘opioids 

are not generally a very successful 

treatment for chronic headaches.’’ Tr. 

231.] Dr. Shurman presented the 

opinion that some physicians, including 

himself, believe opioids are an 

appropriate treatment for migraines 

within the standard of care. The 

Respondent testified that he treated J.K. 

with Botox, but her insurance 

eventually failed to cover these 

injections. Without further detail or 

explanation from the experts, I [decline 

to decide whether or not the prescribed 

opioids were appropriate to treat J.K. 

migraines.] *FF

The next dispute relates to Dr. 

Munzing’s assertion that J.K.’s ongoing 

pain could not be attributed to cancer 

pain as J.K. had been cancer free for four 

years. The Respondent counters that 

chemotherapy can produce residual 

pain syndromes, which can extend after 

treatment has ended. Dr. Munzing did 

not address whether the treatment for 

cancer can produce ongoing pain issues. 

Therefore, I credit the Respondent’s 

explanation. [However, I also credit Dr. 

Munzing’s testimony that regarding 

cancer pain, ‘‘[t]here really wasn’t 

anything in [J.K.’s medical records]. The 

focus of the treatment was not anything 

related to cancer per se.’’ Tr. 233–34. To 

prescribe to J.K. within the standard of 

care for pain stemming from cancer or 

cancer treatment, Dr. Munzing testified 

that Respondent’s ‘‘medical history 

certainly should have included more 

specifics in regards to the diagnosis of 

breast cancer.’’ Tr. 234.] 

The next controversy relates to J.K.’s 

abnormal urine drugs screens (UDS). 

J.K.’s UDS failed to reveal the fentanyl 

she had been prescribed in the form of 

a patch. According to the Respondent, 

when confronted with this discrepancy, 

J.K. explained that the patches would 

fall off prematurely due to her 

perspiring. She would then put on a 

new patch prematurely, and run out of 

her prescribed patches prior to her next 

medical visit. Dr. Shurman confirmed 

this scenario was not uncommon and 

noted that J.K. was on hormone 

replacement. I accept Dr. Shurman’s 

opinion that this abnormal UDS was 

properly investigated and found to be 

reasonably explained. [However, I also 

agree with Dr. Munzing that the 

required documentation showing that 

Respondent addressed and resolved the 

aberrant results was missing from the 

medical records, which is itself beneath 

the standard of care. Tr. 266–67; 268– 

69; 270; 279.] 

The next UDS controversy relates to 

THC appearing in J.K.’s UDS, which had 

not been prescribed by the Respondent. 

Dr. Munzing noted the danger in 

combining marijuana with J.K.’s 

prescribed medications. The 

Respondent testified that J.K. had been 

prescribed Marinol during her cancer 

treatment, and she apparently continued 

to take it after obtaining it from a 

dispensary. The Respondent testified 

that he cautioned her about potential 

side effects and contraindications in 

conjunction with the other medications 

she was taking, but the testimony was 

not supported by documentation in the 

medical records. Dr. Shurman opined 

that marijuana derivatives were 

commonly prescribed now and did not 

present a significant danger to J.K. [Even 

assuming that the aberrant result was 

investigated and handled appropriately, 

I find in accordance with Dr. Munzing’s 

testimony that Respondent’s failure to 

document that he investigated and 

resolved the aberrant results was 

beneath the standard of care. Tr. 266– 

67; 268–69; 270; 279.] 

The next abnormal UDS relates to the 

appearance of amphetamine, which was 

not prescribed by the Respondent. The 

Respondent recognized that the UDS 

results indicated the dose was likely 

pharmaceutical. The Respondent 

remembered that J.K. was being seen by 

a psychiatrist, who prescribed Adderall. 

The Respondent testified that he 

cautioned J.K. regarding taking her 

medications as prescribed. I find that 

the Respondent investigated and 

properly handled this UDS. [Even 

assuming that the aberrant result was 

investigated and handled appropriately, 

I find in accordance with Dr. Munzing’s 

testimony that Respondent’s failure to 

document that he investigated and 

resolved the aberrant results was 

beneath the standard of care. Id.] 

The next issue related to J.K. taking in 

excess of the opioid dosage prescribed. 

Tr. 256–57. The Respondent testified 

that he counseled J.K. regarding the 

dangers of doing so. However, no 

further cautionary steps were taken. J.K. 

had a dosage of approximately 400 

MME at this time and the MME had 

been increased by the Respondent. 

[With regard to patients who are not 

taking medications as prescribed, Dr. 

Munzing testified that ‘‘there are 

significant risks of either taking too 

much [and] potentially overdosing [or] 

taking too little and potentially going 

through withdrawal.’’ Tr. 411. 

Accordingly, Dr. Munzing testified, 

when ‘‘a prescriber learn[s] about it, you 

need to counsel the patient and 

document that.’’ Id.] Dr. Shurman 

suggested that it was normal for patients 

to take medications other than as strictly 

prescribed, and it was appropriate to 

average their compliant versus 

noncompliant behavior. That position is 

contrary to common sense, and I must 

reject it. At such high levels of MME, 

taking an opioid as prescribed must be 

more than a suggestion [in light of the 

risks identified by Dr. Munzing]. 

Allowing a patient to increase [or 

decrease] dosages on his own can be 

dangerous. I find the Respondent’s 

[failure to take action and/or document 

the action taken with regard to 

addressing J.K.’s admission that she did 

not take the medication as prescribed] 

was insufficient to satisfy the standard 

of care. 

The next controversy relates to 

attempts to titrate J.K. down on her 

opioids, Soma, and benzodiazepine. In 

reviewing the record, the Respondent 

described his efforts to get J.K. to ‘‘buy 

in’’ on the idea of titrating her off the 

high level MME she was on and off her 

benzodiazepine dose.*GG The 

Respondent also defended the 

medication regimen as it allowed J.K. to 

work and to complete her ADLs. 

However, according to Dr. Munzing, the 

standard of care requires practitioners to 


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*HH Again, this position is not convincing. I 

cannot find that monitoring, assuming for the sake 

of argument that it was sufficient, can overcome 

Respondent’s other failures, here, the failure to 

resolve repeated aberrant drug screens. *IIText omitted for legal clarity. 

reduce the MME to the level that 

balances the highest level of activity 

with the least MME. Dr. Munzing 

described the danger inherent in the 

combination of controlled substances 

that J.K. found herself on, ‘‘the Holy 

Trinity,’’ as prescribed by the 

Respondent. When J.K. returned to the 

Respondent as a patient, she was on a 

fentanyl patch, which the Respondent 

continued. He also prescribed a shortacting opioid for breakthrough pain, and 

Soma to diffuse muscle spasms. He later 

concluded that Soma was not the right 

medication for J.K. and attempted to 

have her ‘‘buy in’’ to titrate off of it. 

Even crediting the Respondent’s 

explanation for prescribing, which is 

not documented in the record, I credit 

Dr. Munzing’s opinion that having J.K. 

on that dangerous combination was 

unjustified and contrary to the standard 

of care. 

As to J.K.’s threat of suicide, Dr. 

Munzing opined that the Respondent’s 

actions fell below the standard of care. 

Dr. Munzing testified that the standard 

of care for a doctor with a patient on 

high-dose opioids and has suicidal 

ideations is to get that patient 

immediate care, review the patient’s 

mental health history, work with other 

providers such as a psychiatrist, and 

come up with a plan. Tr. 259. Typically, 

Dr. Munzing testified, a doctor would 

not continue the medications being 

prescribed and would work to develop 

a possible management plan for the 

patient. The standard of care would also 

require that the doctor have a discussion 

with the patient on a subsequent visit. 

Tr. 259–60. [Dr. Shurman did not offer 

an opinion on this issue.] The 

Respondent testified that he believed 

that J.K. [had no intention of following 

through on her] threat, which he 

believed was based solely on her fear 

that she would be without her 

medication. Tr. 564. Accordingly, the 

Respondent continued her prescription 

regime. I agree with Dr. Munzing’s 

[credible opinion] that the Respondent’s 

reaction, [particularly his continued 

prescribing without modification 

following J.K.’s suicide threat,] was 

outside the standard of care. 

[In addition to the above areas, Dr. 

Munzing testified that with regard to 

prescribing to J.K., Respondent failed to 

take an appropriate history and 

examination to narrow down the cause 

of the headaches, Tr. 229; failed to 

adequately document the risks and 

attempts to moderate the risks, Tr. 235, 

446, 448, 458; failed to obtain informed 

consent, id.; failed to medically justify 

the high levels of opioids or the 

dangerous combinations of opioids with 

Soma and a stimulant, Tr. 235–40; failed 

to document justification for increased 

dosages and changes to prescriptions, 

Tr. 244–45; and failed to take or 

document vital signs at multiple visits, 

Tr. 248–49. Based on these failures, I 

find in accordance with Dr. Munzing’s 

testimony that each of the relevant 

prescriptions issued to J.K. were issued 

outside the usual course of professional 

practice and beneath the standard of 

care. Tr. 281.] 

Discussion as to Patient P.S. 

The following issues were 

controverted by the parties. The most 

significant controversy was related to 

P.S.’s repeated abnormal UDS. He tested 

negative for lorazapam and alprazolam 

several times, which were prescribed 

controlled substances. He also tested 

negative for morphine, a prescribed pain 

medication. Dr. Munzing faulted the 

Respondent for not immediately 

contacting P.S. to investigate and to 

monitor him more closely. The 

Respondent believed that P.S., who 

suffered from chronic pain and an 

anxiety disorder, had good days and bad 

days and would refrain from taking his 

medications some days, but was not 

abusing his medication. The 

Respondent also tried to refer P.S. to a 

psychiatrist. Dr. Shurman viewed P.S. 

as a challenging patient. He viewed the 

abnormal UDS, as long as they were not 

ongoing, as something which at least 

requires the practitioner’s attention. Dr. 

Shurman believed the Respondent 

followed the standard of care with P.S. 

because he had a discussion with him 

and followed him closely with CURES, 

urine screens, etc., to ensure there was 

not an ongoing problem.*HH Tr. 692–94. 

I find Dr. Munzing’s testimony more 

credible in this instance. P.S. was 

prescribed dangerous combinations of 

medications with serious concurrent 

medical issues. He also suffered from 

mental health issues, but was not under 

psychiatric care. He demonstrated a 

propensity to refrain from taking his 

medication if he felt he did not need it 

and had fifteen abnormal drug screens, 

including several evidencing alcohol 

use. [As Dr. Munzing testified, there are 

significant risks for taking too much or 

too little medication. Tr. 411. And here, 

there is no indication that the 

Respondent documented that he 

investigated the aberrant results, 

counseled P.S. regarding them, or 

resolved the aberrancies; Dr. Munzing 

testified Respondent acted beneath the 

standard of care. Tr. 198–202.] I 

therefore find that the Respondent 

continuing prescribing to P.S. without 

modification, despite multiple aberrant 

drugs screens, fell below the standard of 

care.*II

The next matter in controversy was 

the justification for prescribing opioids 

and a benzodiazepine together. The 

Respondent prescribed P.S. morphine, 

hydromorphone, and a benzodiazepine 

at 366 MME per day. P.S. had serious 

concurrent health issues, including an 

embolism and DVT. The Respondent 

did not address these issues at the 

hearing, either through his own 

testimony or through his expert’s 

testimony, except in the most general 

terms that his prescriptions were within 

the standard of care. As noted by Dr. 

Munzing, the patient’s medical record 

does not reveal Respondent’s rationale 

for issuing these prescriptions. Dr. 

Munzing’s opinion is rational, logical, 

consistent with his other opinions and 

with the credible facts of the case, and 

was uncontroverted. Accordingly, I 

accept Dr. Munzing’s opinion. I 

therefore find that the Respondent’s 

actions to prescribe opioids and 

benzodiazepine fell below the standard 

of care because the Respondent failed to 

justify this dangerous medication 

regimen for P.S. 

[In addition to the above areas, Dr. 

Munzing testified that with regard to 

prescribing to P.S., Respondent failed to 

obtain an adequate medical history, Tr. 

183–84; failed to adequately document 

the full range of risks of using opioids 

and a benzodiazepine, Tr. 178; failed to 

obtain informed consent, Tr. 183, 374; 

failed to medically justify the controlled 

substance prescriptions, Tr. 190–97; 

failed to document justification for 

changes to prescriptions, Tr. 179–81, 

193; failed to take or document vital 

signs at multiple visits and failed to 

perform proper musculoskeletal exams, 

Tr. 183. Based on these failures, I find 

in accordance with Dr. Munzing’s 

testimony that each of the relevant 

prescriptions issued to J.K. were issued 

outside the usual course of professional 

practice and beneath the standard of 

care. Tr. 193.] 

Discussion as to Patient D.L. 

The first matter in controversy relates 

to the Respondent’s inability to taper 

D.L. down from the high doses of 

medication. Despite acknowledging the 

importance of reducing the MME, D.L. 

would eventually reach 455 MME under 

the Respondent’s care. Dr. Munzing 

explained that although the patient’s 

chart suggests her opioid dosage was 

going to be reduced, the medical records 


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*JJAgain, this position is not convincing. Based 

on Dr. Munzing’s credible expert testimony, I 

cannot find that monitoring, assuming for the sake 

of argument that it was sufficient, can overcome 

Respondent’s other failures. 

*KK Respondent argued that his continued 

registration is consistent with the public interest 

because he provides medical services to a 

community that is ‘‘very under-served, underprivileged and in need of doctors like him.’’ Tr. 18. 

The CSA requires me to consider Respondent’s 

controlled substance dispensing experience, among 

other things, not whether Respondent’s practice of 

medicine as a whole was beneficial to the 

community. 21 U.S.C. 823(f)(2); see Frank Joseph 

Stirlacci, M.D., 85 FR 45229, 45239 (2020) 

(declining to accept community impact arguments); 

see also Richard J. Settles, D.O., 81 FR 64940, 64945 

n.16 (2016). 

47 [This text replaces the ALJ’s original text and 

omits his original footnote for clarity.] 

48 21 U.S.C. 823(f)(2), (4). There is nothing in the 

record to suggest that a state licensing board made 

any recommendation regarding [Respondent’s 

prescribing practices] (Factor One). [Where the 

record contains no evidence of a recommendation 

by a state licensing board that absence does not 

weigh for or against revocation. See Roni Dreszer, 

M.D., 76 FR 19434, 19444 (2011) (‘‘The fact that the 

record contains no evidence of a recommendation 

by a state licensing board does not weigh for or 

against a determination as to whether continuation 

of the Respondent’s DEA certification is consistent 

with the public interest.’’)] Likewise, the record 

contains no evidence that the Respondent has [a 

‘‘conviction record under Federal or State laws 

relating to the manufacture, distribution, or 

dispensing of controlled substances.’’ 21 U.S.C. 

823(f)(3). However, as Agency cases have noted, 

reflect that the opioid dosage was 

actually increased over time. [Dr. 

Shurman opined that ‘‘at the time she 

[first] came to Dr. Wynn’’ it would not 

have been appropriate for Respondent to 

immediately taper D.L. from her dosages 

without ‘‘getting a feel for [her], get[ting] 

a history, urine drug screens, CURES, 

etc.’’ Tr. 703. Dr. Shurman went on to 

testify that D.L. continued getting the 

same combination of medications for a 

while, id., but then never offered further 

testimony regarding the appropriateness 

of tapering after the first visits.] I credit 

Dr. Munzing’s opinion that the 

[prescriptions issued to] D.L. were not 

consistent with the standard of care. 

Documenting an intent to reduce an 

opioid dosage, yet increasing it, is 

troubling. The Respondent provided no 

justification for increasing D.L.’s MME 

to such a high level. 

The next matter in controversy relates 

to the indication of abnormal UDS. Dr. 

Munzing notes there is no explanation 

in the file for the aberrancies, nor any 

indication the Respondent investigated 

the matter or discussed any aberrant 

drug screens with D.L. The Respondent 

testified that he had ordered 

pharmacogenic testing for D.L. and 

discovered she had an altered gene 

expression that related to how she 

responded to morphine. He explained 

this condition was the reason for her 

aberrant UDSs, although nothing in the 

record showed that there was any 

discussion regarding the aberrant drug 

screens. Tr. 308. I therefore find that the 

Respondent did investigate and address 

the abnormal UDS results [but did not 

document resolution of the aberrant 

drug screens appropriately.] 

Dr. Munzing cited D.L.’s age as an 

aggravating factor relative to 

Respondent’s prescribing as she was is 

in her late 60’s/early 70’s. Tr. 287. She 

presented with a history of colon 

cancer, then experienced uncontrolled 

pain due to polyneuropathy, hip pain, 

and a failed spine surgery. The 

Respondent testified that he 

investigated hip injections and a pain 

pump as possible alternatives. Dr. 

Shurman noted that throughout 

treatment, D.L.’s subjective pain scale 

remained at a five or six out of ten. He 

considered this a success. [Dr. Shurman 

also offered his opinion that 

Respondent’s prescribing to D.L. was 

appropriate because of ‘‘how he handled 

it;’’ specifically that ‘‘he followed [her] 

closely, CURES, urine screens, kept an 

eye on [her] mentally . . . .’’ Tr. 708.]*JJ

[In addition to the above areas, Dr. 

Munzing testified that with regard to 

prescribing to P.S., Respondent: Failed 

to obtain an adequate medical history, 

Tr. 283; failed to adequately document 

the full range of risks of using opioids 

with a benzodiazepine and a sleeping 

agent, Tr. 286; failed to obtain informed 

consent, Tr. 297–98; failed to consider 

or document consideration of 

alternative strategies to manage D.L.’s 

pain, Tr. 300; failed to medically justify 

the controlled substance prescriptions, 

Tr. 289; and failed to take or document 

vital signs or perform proper 

musculoskeletal exams at multiple 

visits, Tr. 294, 296, 300. Based on these 

failures, I find in accordance with Dr. 

Munzing’s testimony that each of the 

relevant prescriptions issued to J.K. 

were issued outside the usual course of 

professional practice and beneath the 

standard of care. Tr. 287, 290, 292, 294, 

299, 301, 308, 309.] 

Government’s Burden of Proof and 

Establishment of a Prima Facie Case 

Based upon my review of each of the 

allegations by the Government, it is 

necessary to determine if it has met its 

prima facie burden of proving the 

requirements for a sanction pursuant to 

21 U.S.C. 824(a)(4). At the outset, I find 

that the Government has demonstrated 

and met its burden of proof in support 

of its allegations relating to 

Respondent’s prescribing of controlled 

substances to patients D.P., J.K., D.L., 

and P.S. 

Public Interest Determination: The 

Standard 

[Under Section 304 of the CSA, ‘‘[a] 

registration . . . to . . . dispense a 

controlled substance . . . may be 

suspended or revoked by the Attorney 

General upon a finding that the 

registrant . . . has committed such acts 

as would render his registration under 

section 823 of this title inconsistent 

with the public interest as determined 

by such section.’’ *KK 21 U.S.C. 

824(a)(4).] 47 Evaluation of the following 

factors has been mandated by Congress 

in determining whether maintaining 

such registration would be inconsistent 

with the ‘‘the public interest’’: 

(1) The recommendation of the 

appropriate State licensing board or 

professional disciplinary authority. 

(2) The [registrant’s] experience in 

dispensing, or conducting research with 

respect to controlled substances. 

(3) The [registrant’s] conviction record 

under Federal or State laws relating to 

the manufacture, distribution, or 

dispensing of controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to 

controlled substances. 

(5) Such other conduct which may 

threaten the public health and safety. 

21 U.S.C. 823(f). ‘‘These factors are . . . 

considered in the disjunctive.’’ Robert 

A. Leslie, M.D., 68 FR 15227, 15230 

(2003). 

Any one or a combination of factors 

may be relied upon, and when 

exercising authority as an impartial 

adjudicator, the Agency may properly 

give each factor whatever weight it 

deems appropriate in determining 

whether a registrant’s registration 

should be revoked. Id. (citation 

omitted); David H. Gillis, M.D., 58 FR 

37507, 37508 (1993); see also Morall at 

173–74; Henry J. Schwarz, Jr., M.D., 54 

FR 16422, 16424 (1989). Moreover, the 

Agency is ‘‘not required to make 

findings as to all of the factors,’’ Hoxie, 

419 F.3d at 482; see also Morall, 412 

F.3d at 173. [Omitted for brevity.] The 

balancing of the public interest factors 

‘‘is not a contest in which score is kept; 

the Agency is not required to 

mechanically count up the factors and 

determine how many favor the 

Government and how many favor the 

registrant. Rather, it is an inquiry which 

focuses on protecting the public interest 

. . . .’’ Jayam Krishna-Iyer, M.D., 74 FR 

459, 462 (2009). 

The Government’s case invoking the 

public interest factors of 21 U.S.C. 823(f) 

seeks the revocation of the Respondent’s 

COR based primarily on conduct most 

aptly considered under Public Interest 

Factors Two and Four.48


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there are a number of reasons why a person who 

has engaged in criminal misconduct may never 

have been convicted of an offense under this factor, 

let alone prosecuted for one. Dewey C. MacKay, 

M.D., 75 FR 49956, 49973 (2010). Agency cases 

have therefore held that ‘‘the absence of such a 

conviction is of considerably less consequence in 

the public interest inquiry’’ and is therefore not 

dispositive. Id. The Government does not identify 

Factor Five as being relevant.] 

*LLThe ALJ evaluated Factors 2 and 4 in separate 

sections and I have combined and expanded on his 

analysis herein. 

49 [Footnote omitted along with original text for 

legal clarity.] 

[Factors Two and Four: The 

Respondent’s Experience in Dispensing 

Controlled Substances and Compliance 

With Applicable Laws Related to 

Controlled Substances *LL

According to the Controlled 

Substances Act’s implementing 

regulations, a lawful controlled 

substance order or prescription is one 

that is ‘‘issued for a legitimate medical 

purpose by an individual practitioner 

acting in the usual course of his 

professional practice.’’ 21 CFR 

1306.04(a). The Supreme Court has 

stated, in the context of the CSA’s 

requirement that schedule II controlled 

substances may be dispensed only by 

written prescription, that ‘‘the 

prescription requirement . . . ensures 

patients use controlled substances 

under the supervision of a doctor so as 

to prevent addiction and recreational 

abuse . . . [and] also bars doctors from 

peddling to patients who crave the 

drugs for those prohibited uses.’’ 

Gonzales v. Oregon, 546 U.S. 243, 274 

(2006).49

Respondent has demonstrated 

substantial experience as a licensed 

California doctor since 2000; he has 

been board certified in Physical 

Medicine and Rehabilitation since 2004, 

and has maintained a subspecialty 

certification in Pain Management since 

2006. RX 1, at 1. Respondent has 

practiced pain medicine in a variety of 

settings including in affiliation with 

hospitals, in group settings, and most 

recently rebuilding his preexisting 

private practice since 2016. Tr. 469–76. 

At the time of the hearing, Respondent 

testified that he served 600 active 

patients, and handled a total of 

approximately 7,000 medical 

appointments a year. Tr. 830. The 

Agency assumes that Respondent has 

prescribed legally, except where the 

Government has established violations 

of the law. Here, Respondent’s treatment 

of the four patients as alleged in the 

OSC demonstrates that his prescribing 

practices fell beneath applicable 

standard of care. 

I find that the Government’s expert 

credibly testified, as supported by 

California law and California’s Guide to 

the Laws and Guidelines for Prescribing, 

that the standard of care in California 

for prescribing controlled substances 

requires a physician to, amongst other 

things, obtain a detailed medical 

history, perform and document a 

physical examination, come up with a 

diagnosis, perform a risk stratification, 

and develop and document a 

customized management plan. Tr. 79. 

Thereafter, the physician must monitor 

the patient on a periodic and regular 

basis, which includes obtaining vital 

signs including blood pressure, heart 

rate, and respiratory rate at every office 

visit for patients on high dose opioids. 

Tr. 79–80, 87, 851–52. The standard of 

care further requires that physicians 

maintain complete and accurate records 

documenting all of the above steps in 

detail. Tr. 79–80. The standard of care 

requires that patients be notified of the 

risks and benefits of the use of 

controlled substances and the 

availability of any alternatives, that 

patients give informed consent, and that 

the notification of risks and informed 

consent be documented. Tr. 85–86. 

I also found above, in accordance 

with Dr. Munzing’s testimony, that 

Respondent issued each of the relevant 

controlled substance prescriptions to 

the four patients at issue without taking 

a proper medical or mental health 

history; conducting a sufficient 

physical, mental, or neurological 

examination; recording pain levels; 

documenting an appropriate treatment 

plan; documenting medical justification 

for the high levels of prescribed opioids; 

documenting discussion of the risks of 

the prescribed controlled substances 

and informed consent; monitoring the 

patient including taking key vital signs; 

and/or resolving inconsistent urine drug 

screen results. See supra Findings of 

Fact. I further found that each of the 

relevant prescriptions Respondent 

issued to the four individuals were 

issued without a legitimate medical 

purpose, outside the usual course of 

professional practice and beneath the 

standard of care in California. 

Accordingly, I find that Respondent 

violated 21 CFR 1306.04(a). 

Indeed, Respondent repeatedly issued 

prescriptions without complying with 

the applicable standard of care and state 

law, thus demonstrating that his 

conduct was not an isolated occurrence, 

but occurred with multiple patients. See 

Kaniz Khan Jaffery, 85 FR 45667, 45685 

(2020). For each of the four individuals, 

Respondent repeatedly, amongst other 

things, failed to have medical 

justification for issuing high dosages of 

opioids often in combination with other 

dangerous controlled substances, failed 

to properly obtain or document 

obtaining informed consent, and failed 

to properly monitor by taking or 

documenting the taking of vital signs. 

Agency decisions highlight the 

concept that ‘‘[c]onscientious 

documentation is repeatedly 

emphasized as not just a ministerial act, 

but a key treatment tool and vital 

indicator to evaluate whether the 

physician’s prescribing practices are 

‘within the usual course of professional 

practice.’ ’’ Cynthia M. Cadet, M.D., 76 

FR 19450, 19464 (2011). DEA’s ability to 

assess whether controlled substances 

registrations are consistent with the 

public interest is predicated upon the 

ability to consider the evidence and 

rationale of the practitioner at the time 

that he prescribed a controlled 

substance—adequate documentation is 

critical to that assessment. See KanizKhan Jaffery, 85 FR at 45686. Dr. 

Munzing testified that complete and 

accurate records are necessary because 

‘‘bottom line[,] it’s a patient safety issue 

. . . . [I]f this patient ends up seeing 

another provider, whether it be the 

primary care provider, another subspecialist, or the emergency room . . . 

they know . . . how the patient was, 

here’s why they were taking what 

they’re taking as far as a justification, 

and the patient is aware of the risk and 

accepts those risks.’’ Tr. 89. The extreme 

failures in Respondent’s documentation 

extended to each of the four individuals. 

DEA decisions have found that ‘‘just 

because misconduct is unintentional, 

innocent, or devoid of improper motive, 

[it] does not preclude revocation or 

denial. Careless or negligent handling of 

controlled substances creates the 

opportunity for diversion and [can] 

justify the revocation of an existing 

registration . . .’’ Bobby D. Reynolds, 

N.P., Tina L. Killebrew, N.P., & David R. 

Stout, N.P., 80 FR 28643, 28662 (2015) 

(quoting Paul J. Caragine, Jr. 63 FR 

51592, 51601 (1998). ‘‘Diversion occurs 

whenever controlled substances leave 

‘the closed system of distribution 

established by the CSA . . . .’ ’’ Id. 

(citing Roy S. Schwartz, 79 FR 34360, 

34363 (2014)). In this case, I have found 

that Respondent issued controlled 

substance prescriptions without 

complying with his obligations under 

the CSA and California law. See George 

Mathew, M.D., 75 FR 66138, 66148 

(2010)). 

With regard to California law, just as 

I found a violation of 21 CFR 1306.04(a), 

I find that Respondent repeatedly issued 

controlled substance prescriptions what 

were not ‘‘for a legitimate medical 

purpose by an individual practitioner 

acting in the usual course of his or her 

professional practice,’’ in violation of 


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*MM Sentence modified to remove findings 

regarding California laws that were either dropped 

from the Government’s case, see supra n.*D, or not 

established. 

*NN I am replacing portions of the Sanction 

section in the RD with preferred language regarding 

prior Agency decisions; however, the substance is 

primarily the same. 

Cal. Health & Safety Code § 11153(a). 

California law also prohibits 

‘‘[p]rescribing, dispensing, or 

furnishing’’ controlled substances 

‘‘without an appropriate prior 

examination.’’ Cal. Bus. & Prof. Code 

§ 2242(a). Crediting Dr. Munzing’s 

testimony, I have found that the 

Respondent failed to conduct an 

appropriate prior physical, mental, and/ 

or neurological examination with regard 

to his prescribing to each of the four 

individuals at issue, which I find 

violates Cal. Bus. & Prof. Code § 2242(a). 

Crediting Dr. Munzing’s testimony, I 

find that Respondent acted outside the 

bounds of these laws with regard to his 

prescribing to each of the four patients. 

Finally, California law prohibits 

‘‘[r]epeated acts of clearly excessive 

prescribing, furnishing, dispensing, or 

administering of drugs.’’ Cal. Bus. & 

Prof. Code § 725(a). The Government 

cited to the sheer volume of 

prescriptions issued by Respondent to 

the four individuals at issue as its only 

proof of a violation of Cal. Bus. & Prof. 

Code § 725(a). While I note that the 

prescriptions were voluminous, the 

Government did not elicit testimony 

from its expert to establish that 

Respondent’s prescribing to the four 

individuals at issue constituted clearly 

excessive prescribing in California. 

Accordingly, the Government has not 

met its burden of establishing a 

violation of Cal. Bus. & Prof. Code 

§ 725(a).] 

Here for the reasons discussed supra, 

I find the Government has proven by 

substantial evidence that Respondent 

violated California Business & 

Professional Code § 2242(a), California 

Health & Safety Code § 11153(a), and 21 

CFR 1306.04(a).*MM

[Summary of Factors Two and Four and 

Imminent Danger 

As found above, the Government’s 

case establishes by substantial evidence 

that Respondent issued controlled 

substance prescriptions outside the 

usual course of the professional 

practice. I, therefore, conclude that 

Respondent engaged in misconduct that 

supports the revocation of his 

registration. See Wesley Pope, 82 FR 

14944, 14985 (2017). 

For purposes of the imminent danger 

inquiry, my findings also lead to the 

conclusion that Respondent has 

‘‘fail[ed] . . . to maintain effective 

controls against diversion or otherwise 

comply with the obligations of a 

registrant’’ under the CSA. 21 U.S.C. 

824(d)(2). The substantial evidence that 

Respondent issued controlled substance 

prescriptions outside the usual course of 

professional practice establishes ‘‘a 

substantial likelihood of an immediate 

threat that death, serious bodily harm, 

or abuse of a controlled substance . . . 

[would] occur in the absence of the 

immediate suspension’’ of Respondent’s 

registration. Id. The risk of death was 

established in this case. There was 

ample evidence introduced to establish 

that combined use of opioid medicines 

with benzodiazepines or other drugs 

that depress the central nervous system 

has resulted in serious side effects 

including slowed or difficult breathing, 

comas, and deaths. GX 6, at 1. Dr. 

Munzing testified that ‘‘[w]hen an 

individual is on a combination of an 

opiate and a benzodiazepine, the 

increased risk of overdose death goes up 

approximately tenfold.’’ Tr. 86. 

I credit Dr. Munzing’s repeated 

testimony that Respondent was 

prescribing ‘‘astronomical’’ and 

‘‘incredibly high doses’’ of individually 

dangerous drugs; one patient was 

prescribed over 6,000 MME which Dr. 

Munzing testified was ‘‘the highest [he 

had] ever seen.’’ Tr. 118, 125, 132. 

Moreover, many of the prescriptions at 

issue were issued in dangerous 

combinations including the ‘‘holy 

trinity’’ the ‘‘new holy trinity’’ and other 

dangerous combinations as have been 

discussed. Tr. 189, 238, 264. Dr. 

Munzing testified that for D.P. alone, the 

prescribing ‘‘was incredibly dangerous. 

The patient is lucky to be alive.’’ Tr. 

177. In contrast, Respondent testified 

that he was not aware of any of his 

patients having suffered the 

consequence of an overdose due to 

medications he prescribed. Tr. 748. 

Even if I credit Respondent’s testimony 

that none of his patients overdosed, I 

cannot rule out the real potential for 

addiction. Dr. Munzing testified, that 

‘‘addictive issue[s] with 

benzodiazepines and opiates is a very 

real risk and potentially life-altering 

risk.’’ Tr. 458. Even the individuals’ 

exposure to the increased risks caused 

by the dangerous combinations of the 

controlled substances Respondent 

prescribed could be harmful. 

Thus, as I have found above, at the 

time the Government issued the OSC/ 

ISO, the Government had clear evidence 

of violations of law based on the many 

controlled-substance prescriptions 

Respondent issued without complying 

with the California standard of care. See 

supra Factors Two and Four.] 

[Sanction *NN

Where, as here, the Government has 

met its prima facie burden of showing 

that Respondent’s continued registration 

is inconsistent with the public interest, 

the burden shifts to the Respondent to 

show why he can be entrusted with a 

registration. Garrett Howard Smith, 

M.D., 83 FR 18882, 18910 (2018) 

(collecting cases). Here, Respondent has 

not established that he can be entrusted 

with a registration. 

The CSA authorizes the Attorney 

General to ‘‘promulgate and enforce any 

rules, regulations, and procedures 

which he may deem necessary and 

appropriate for the efficient execution of 

his functions under this subchapter.’’ 21 

U.S.C. 871(b). This authority 

specifically relates ‘‘to ‘registration’ and 

‘control,’ and ‘for the efficient execution 

of his functions’ under the statute.’’ 

Gonzales v. Oregon, 546 U.S. 243, 259 

(2006). A clear purpose of this authority 

is to ‘‘bar[ ] doctors from using their 

prescription-writing powers as a means 

to engage in illicit drug dealing and 

trafficking.’’ Id. at 270. 

In efficiently executing the revocation 

and suspension authority delegated to 

me under the CSA for the 

aforementioned purposes, I review the 

evidence and arguments Respondent 

submitted to determine whether or not 

he has presented ‘‘sufficient mitigating 

evidence to assure the Administrator 

that he can be trusted with the 

responsibility carried by such a 

registration.’’ Samuel S. Jackson, D.D.S., 

72 FR 23848, 23853 (2007) (quoting Leo 

R. Miller, M.D., 53 FR 21931, 21932 

(1988)). ‘‘ ‘Moreover, because ‘‘past 

performance is the best predictor of 

future performance,’’ ALRA Labs, Inc. v. 

DEA, 54 F.3d 450, 452 (7th Cir. 1995), 

[the Agency] has repeatedly held that 

where a registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[the registrant’s] actions and 

demonstrate that [registrant] will not 

engage in future misconduct.’ ’’ Jayam 

Krishna-Iyer, 74 FR 459, 463 (2009) 

(quoting Medicine Shoppe, 73 FR 364, 

387 (2008)); see also Jackson, 72 FR at 

23853; John H. Kennedy, M.D., 71 FR 

35705, 35709 (2006); Prince George 

Daniels, D.D.S., 60 FR 62884, 62887 

(1995). 

The issue of trust is necessarily a factdependent determination based on the 

circumstances presented by the 

individual respondent; therefore, the 

Agency looks at factors, such as the 


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50 [Omitted for clarity.] 51Where a registrant has not accepted 

responsibility, it is not necessary to consider 

evidence of the registrant’s remedial measures. Id. 

at 5498 n.33. 

*OO Sentence modified for clarity. 

52 [Omitted for legal clarity.] 

*PPRemainder text omitted consistent with my 

findings above. 

*PPThe ALJ went on to state: ‘‘I note that Dr. 

Shurman has agreed to shepherd the Respondent in 

his future practice, and the Respondent has 

represented he is more than amenable to a 

conditional allowance of his registration. Dr. 

Munzing observed that this is not a case of a doctor 

limiting treatment to merely giving patients pills to 

control their pain. The Respondent either ordered 

tests or attempted to order tests and on occasion 

made efforts to refer patients to specialists. As the 

violations by the Respondent do not appear wanton 

and may have been more the result of inexperience, 

as the Respondent is a relatively young physician, 

and with relatively limited experience, the 

Administrator may consider permitting the 

Respondent to retain his registration with the 

Continued 

acceptance of responsibility and the 

credibility of that acceptance as it 

relates to the probability of repeat 

violations or behavior, and the nature of 

the misconduct that forms the basis for 

sanction, while also considering the 

Agency’s interest in deterring similar 

acts. See Arvinder Singh, M.D., 81 FR 

8247, 8248 (2016).] 

Here, [the ALJ found that] the 

Respondent had accepted responsibility 

that his record-keeping was not 

appropriate or sufficient.50 [At the 

hearing, Respondent agreed with his 

attorney’s question that ‘‘looking back 

now at these records, [there were areas 

that he felt were] less than adequate.’’ 

Tr. 488. But he also testified, ‘‘I would 

say that some areas are appropriate.’’ Id. 

The testimony does not contain 

sufficient detail for me to determine that 

Respondent fully understands the 

documentation requirement in the 

applicable standard of care and which 

‘‘areas’’ were appropriate and which 

were not. Moreover, this limited 

acceptance of responsibility cannot be 

said to be unequivocal, or even 

complete.] Respondent has taken 

remedial steps to improve his 

documentation, including taking 

courses/trainings to bring himself into 

compliance with the critical 

documentation standard and hiring a 

scribe to help draft his patient notes, 

[but I find these remedial measures to be 

insufficient, without an unequivocal 

acceptance of responsibility, to 

convince me that Respondent’s 

documentation failures will not recur]. 

Moreover, as to all of the allegations 

[unrelated to documentation failures], 

such as the dangerous prescribing of 

opioids in conjunction with 

benzodiazepines, failure to timely 

titrate, and ongoing failure to 

sufficiently monitor some of his 

patients, he has not accepted any 

responsibility.51

Egregiousness and Deterrence 

[The Agency also looks to the 

egregiousness and extent of the 

misconduct, which are significant 

factors in determining the appropriate 

sanction. Garrett Howard Smith, M.D., 

83 FR at 18910 (collecting cases). As Dr. 

Munzing testified, not all of 

Respondent’s prescribing practices were 

beneath the standard of care.] Dr. 

Munzing conceded he believed each of 

the subject patients likely had genuine 

pain, and testified that the Respondent 

either ordered tests or attempted to 

order tests, conducted UDS, prescribed 

Narcan, and made efforts to refer 

patients to specialists. Tr. 353. Dr. 

Munzing agreed that this is not a case 

of a doctor limiting treatment to merely 

giving patients pills to control their 

pain. Tr. 353–54. However, I find that 

[there were still substantial deviations 

from the standard of care such that each 

of the relevant prescriptions were issued 

in violation of the CSA and California 

law.] The proven misconduct is 

egregious and deterrence considerations 

weigh in favor of revocation. The 

proven misconduct involved the 

Respondent’s repeated failure to 

maintain complete and accurate patient 

charts. The proven misconduct also 

involved the medically unjustified 

increase and maintenance of 

extraordinarily high MME levels for 

years at a time and combinations of 

dangerous medications.*OO [For 

example, Respondent prescribed D.P. 

opioids reaching 6,000 MME, which Dr. 

Munzing testified ‘‘was incredibly 

dangerous. The patient is lucky to be 

alive.’’ Tr. 176.] 

I further find that deterrence 

considerations weigh in favor of 

revocation. [In sanction determinations, 

the Agency has historically considered 

its interest in deterring similar acts, both 

with respect to the respondent in a 

particular case and the community of 

registrants. See Joseph Gaudio, M.D., 74 

FR 10083, 10095 (2009); Singh, 81 FR at 

8248.] Allowing the Respondent to 

retain his COR despite the proven 

misconduct would send the wrong 

message to the regulated community. 

Imposing a sanction less than revocation 

would create the impression that 

registrants can maintain DEA 

registration despite their wholesale 

failure to maintain accurate and 

complete records, increase MME levels 

to dangerous levels, and maintain those 

levels without documenting appropriate 

medical justification.52 Revoking the 

Respondent’s COR communicates to 

registrants that DEA takes all failings 

under the CSA seriously and that severe 

violations will result in severe 

sanctions. 

Lack of Candor 

The degree of candor displayed by a 

registrant during a hearing is ‘‘an 

important factor to be considered in 

determining . . . whether [the 

registrant] has accepted responsibility’’ 

and in formulating an appropriate 

sanction. Hills Pharmacy, LLC, 81 FR 

49816, 49845 (2016) (citing Michael S. 

Moore, 76 FR 45867, 45868 (2011)). The 

Government has established that the 

Respondent lacked candor during his 

testimony by claiming the term 

‘‘education’’ within a prescribing order 

reflected that the Respondent had then 

admonished the patient as to the risks 

of the subject medications. [The record 

at issue states in relevant part: ‘‘2. 

Medication refill Norco 10/325 . . . 3. 

Medication refill OxyContin 20 mg . . . 

4. Education refill morphine sulfate ER 

200 mg . . . 5. Medication refill 

morphine sulfate ER 30 mg . . . .’’ GX 

14, at 40.] The context of term within 

the sentence makes it much more likely 

that the term ‘‘education’’ was a 

scrivener’s error for the intended term, 

‘‘medication.’’ Tr. 756; GX 14 at p. 40.] 

This was a lapse in candor by the 

Respondent [which weighs against my 

ability to entrust him with a 

registration]. 

Recommendation 

Considering the entire record before 

me, the conduct of the hearing, and 

observation of the testimony of the 

witnesses presented, I find that the 

Government has met its burden of proof 

and has established a prima facie case 

for revocation. In evaluating Factors 

[Two and] Four of 21 U.S.C. 823(f), I 

find that the Respondent’s COR is 

inconsistent with the public interest. 

Furthermore, I find that the Respondent 

has failed to overcome the 

Government’s prima facie case [and that 

the sanction of revocation is 

warranted].*PP

Therefore, I recommend that the 

Respondent’s DEA COR No. BW7210759 

should be revoked, and that any 

pending applications for modification or 

renewal of the existing registration, and 

any applications for additional 

registrations, be denied.*PP

Mark M. Dowd, 

U.S. Administrative Law Judge. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

authority vested in me by 21 U.S.C. 


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requirement of weekly review and certification of 

his prescribing practices by Dr. Shurman, for a one 

year period.’’ As an initial matter, I cannot agree 

with the ALJ’s characterization that Respondent is 

inexperienced where he has been board certified in 

a pain management subspecialty for approximately 

sixteen years and has been a licensed practitioner 

in California for approximately twenty-two years. 

Regardless, with a regulated community of more 

than 1.8 million registrants and fewer than twothousand Diversion Control Employees (See DEA 

FY 2022 Budget Request available at https://

www.justice.gov/jmd/page/file/1399016/download), 

DEA must be able to rely on physicians to maintain 

complete and accurate medical records and 

otherwise comply with the CSA without overseeing 

weekly monitoring. Accordingly, I agree with the 

ALJ that revocation is the appropriate sanction. 

824(a) and 21 U.S.C. 823(f), I hereby 

revoke DEA Certificate of Registration 

No. BW7210759 issued to Brenton D. 

Wynn, M.D. Pursuant to 28 CFR 

0.100(b) and the authority vested in me 

by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), 

I further hereby deny any other pending 

applications for renewal or modification 

of this registration, as well as any other 

pending application of Brenton D. 

Wynn, M.D., for registration in 

California. This Order is effective May 

23, 2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–08514 Filed 4–21–22; 8:45 am] 

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