Drug, sex claims weighed at doctor's hearing

June 2nd, 2005 - Charges against an Anchorage pain management doctor accused of abusing prescription drugs and having sex with patients are overblown and don't justify the state taking away his license, his lawyer told a hearing officer Wednesday.

Dr. Gary Gerlay, an Alaska doctor for nearly 10 years, hasn't been able to practice medicine since April 21, when the Alaska Medical Board suspended his license in an emergency action. The hearing that started Wednesday is to determine whether the suspension should continue.

Investigators in the state Division of Occupational Licensing contend that Gerlay, 57, presents a "clear and immediate danger to the public health and safety" because of his own drug abuse problem, sex with two patients and sexual comments to others, plus deficiencies in how he prescribed highly controlled drugs, assistant state attorney general Robert Auth said at the hearing.

Gerlay was not present for opening statements Wednesday, but his lawyer disputed that the doctor is a threat and said the state shouldn't have put him out of business before even holding a hearing.

"The test is not whether he has done something wrong or right, or whether his records are up to par or not, but whether patients are currently in jeopardy if they continue to see Dr. Gerlay even one more day," attorney Thomas Van Flein told hearing officer David Stebing. "That's what we are focused on here."

Gerlay was the sole doctor at the Aurora Pain Management clinic. When the medical board suspended his license, the clinic remained open, with an advanced nurse practitioner seeing patients, said Leslie Gallant, the medical board's executive administrator.

The clinic's current status is unclear. Gerlay told patients Tuesday they would need to temporarily find a new doctor, said a patient, Jenny Gowen. She said Gerlay seemed to be "a nice, clean-cut, regular guy," so she stuck with his clinic when his license was suspended. She said she suffers from shoulder and back pain and had to scramble Wednesday to find a doctor to prescribe pain medicine for it.

The state's probe began in 2002 when investigators received a complaint of questionable billing practices. It soon expanded to include accusations of sexual misconduct with patients and various allegations about misuse of drugs.

For some patients, Gerlay failed to perform physical exams or come up with a plan for treatment other than writing prescriptions for highly addictive pain medication, according to the accusation against him. Sometimes, he didn't see the patient at all.

Some patients said Gerlay demanded they pay "fines" to him to receive a new prescription and also that he took their pills and kept them, investigator Debra Luker said in an affidavit filed with the charges. In one case, he ordered a patient on Oxycontin to bring her pills into the office, found that she had taken more than she was supposed to, confiscated the rest and charged her a $500 penalty at her next visit, the affidavit said.

By early this year, the complaints were escalating. In March, Gerlay's former office manager, Jessica Prowker, who is not a licensed health care provider, told Luker she saw most of Gerlay's patients during a four-month period, according to the affidavit. Gerlay signed the prescriptions but rarely saw the patients, Luker wrote in her affidavit.

In one five-year period, Gerlay wrote 358 prescriptions for a total of 14 patients for whom he couldn't produce records, the state says.

In the doctor's defense, Van Flein told the hearing officer that the state does not have good evidence that Gerlay is a threat.

A consultant doctor who evaluated Gerlay's record for state investigators concluded only that he was "highly suspicious" that Gerlay was impaired by substance abuse, Van Flein said.

"If he's such an immediate threat, why didn't they order him, as they could have, to get a toxicology test? Then we wouldn't be talking about suspicions or things that happened years ago," Van Flein said. A recent drug test done by the defense shows the doctor is "not impaired," Van Flein said.

Gerlay saw 20 to 30 patients a day, he said. An office worker said she had seen him looking tired twice, but that would be expected with such a busy, demanding practice, Van Flein said.

The state's accusation said Gerlay fell asleep while seeing patients and disappeared from the office for long stretches while patients waited and without telling his staff.

The hearing is supposed to run through Tuesday, but it can take months for a recommendation to be issued by the hearing officer. The Medical Board then decides whether to accept the recommendation.

Gerlay previously practiced in New Mexico, where he was put on probation in 1985 for problems with addictive drugs, including prescribing quantities for himself that suggested abuse, according to the Alaska accusation. He was prohibited from prescribing the Schedule II drugs for more than two years in that state.