RECEIVED

STATE OF TENNESSEE .. .
DEPARTMENT OF HEALTH mlgHAR I An" 

BEFORE m?E??J?Ei?n?fr?l?l?i

 

IN THE MATTER OF: 
OF MEDICAL EXAMINERS
BRIAN S. WAGGONER, M.D. 
RESPONDENT DOCKET NO. 17.18-139095A

COOKEVILLE, TENNESSEE 
TENNESSEE LICENSE NO. 27530 
FINAL ORDER

 

This matter came to be heard before the Tennessee Board of Medical Examiners
(hereinafter the ?Board"), pursuant to a Notice of Charges and Memorandum for Assessment of
Civil Penalties issued against the Respondent. Presiding at the hearing was the Honorable
Rachel Waterhouse, Administrative Judge, assigned by the Secretary of State. The Division of
Health Related Boards of the Tennessee Department of Health was represented by Assistant
General Counsel Andrew W. Coffman. The Respondent, Brian Waggoner, M.D., (hereinafter
?Respondent?), was present and represented by counsel, Thomas Wiseman, Kimberly Silvus,
Gail Ashworth, and Anne Frazier. After consideration of the Notice of Charges, the evidence
presented by both parties, arguments of counsel, and the record as a whole, the Board finds as

follows:

1. FINDINGS OF FACT

 

l. Respondent has been at all times pertinent hereto licensed by the Board as a medical
doctor in the State of Tennessee, having been granted Tennessee medical license number

27530 by the Board.

From at least December 2010 to December 2014, ReSpOndent provided treatment that
included prescribing narcotics and other medications and controlled substances in
amounts and/or for durations not medically demonstrated for a diagnosed condition for
the following patients (initials used to maintain patient con?dentiality): B.A., M.A.,
N.A., K.B., J.B., R.C., L.E., G.G., E.H., J.K., J.S., A.S., and J.C.

This prescribing included large doses of opioids in combination with other controlled
substances without proper demonstration of need.

Many of the patients were prescribed controlled substances without objective evidence to
support a diagnosis for a condition that might require the prescribing of controlled
substances.

Respondent also regularly prescribed benzodiazepines to patients without any objective
evidence that the patients suffered from a condition which would require the prescribing
of benzodiazepines.

From December 2010 to December 2014, Respondent failed to make appropriate,
individualized diagnoses and/or failed to document adequate support for diagnoses
sufficient to justify the treatment rendered and failed to integrate consultations, previous
hospitalizations and other medical information in the chart into the treatment plan for
several patients.

From December 2010 to December 2014, Respondent prescribed controlled substances
and other medication without documenting a written treatment plan with regard to the use
of controlled substances and other medication.

Respondent engaged in a pattern of prescribing opioids to patients without documenting

consideration of other alternative modalities of therapy.

N)

10.



Respondent began prescribing controlled substances without documenting informed
consent or providing his patients with information about the risks and benefits of the
controlled substances prescribed.

From December 2010 to December 2014, Respondent prescribed narcotics and/or other
controlled substances when the quantity, duration, and method was such that the patient
would likely become addicted to the habit of taking said controlled substances, failed to
consistently monitor for or seek out and respond to signs of abuse, and failed to make a
bona ?de effort to cure the habit of such persons or failed to document any such effort.
The Respondent failed to monitor each of the patients at issue for signs of abuse,
addiction, and diversion related to the controlled substances prescribed. Between
December 2010 and December 2014, modalities such as conducting pill counts, utilizing
urine drug screens, and checking the CSMD were not routinely used.

Beginning in December 2010, as testified to by Dr. Jonathan Butler, the standard of care
required a practitioner to conduct at least yearly urine drug screen for patients being
prescribed chronic controlled substances. Respondent regularly failed to conduct yearly
drug screens on the patients to whom he was prescribing controlled substances.
Additionally, Respondent failed routinely to conduct drug screens even when a clinical
suspicion should have been raised and a drug screen was required by the standard of care.
Beginning on April 1, 2013, state statute required Respondent to check the CSMD yearly
for each of the patients to whom he was chronically prescribing controlled substance

opioids. Respondent failed to meet this standard of care.

Lr)

l4. ReSpondent ignored reported and actions which a reasonable physician would
have known indicated potential prescription drug abuse, including patients who were
?lling multiple controlled substance prescriptions in a single month.

15. Likewise, Respondent failed to counsel patients regarding controlled substance abuse,
despite the fact that the charts at issue indicate the patients had a history of past drug
abuse.

16. The Board ?nds that Respondent?s treatment of the patients in the charts presented for
review was below the standard of care. The Board ?nds that the standard of care for
prescribing controlled substances is contained in our rules at Rule 
such that the medical record must demonstrate a documented medical history and
appropriate physical examination, including an assessment for the potential for substance
abuse, diagnostic and laboratory tests consistent with good care, a written treatment plan
tailored to the individual patient, documented discussion of the risks and bene?ts of the
treatment Options and periodic review of the treatment plan. Assessment for potential for
substance abuse and periodic review of the treatment plan also require appropriate
response to signs of abuse and/or diversion by the patient.

CONCLUSIONS OF LAW

The facts as found in Section I of this Order are suf?cient to establish violations by Respondent
of the following statutes or rules which are part of the provisions of the Tennessee Medical
Practice Act, CODE ANN. 63-6?101, er seq.) for which disciplinary action before and by

the Board of Medical Examiners is authorized:

17.

18.

19.

The facts in Section I constitute grounds for disciplinary action against Respondent?s
license to practice as a medical doctor in the State of Tennessee pursuant to TENN. CODE
ANN. which authorizes disciplinary action against a Respondent who
has engaged in unprofessional, dishonorable, or unethical conduct.

The facts in Section 1 constitute grounds for disciplinary action against Respondent?s
license to practice as a medical doctor in the State of Tennessee pursuant to TENN. CODE
ANN. which authorizes disciplinary action against a Respondent who is
guilty of gross health care liability or a pattern of continued or repeated health care
liability, ignorance, negligence or incompetence in the course of medical practice.

The facts in Section 1 constitute grounds for disciplinary action against Respondent?s
license to practice as a medical doctor in the State of Tennessee pursuant to TENN. CODE
ANN. which authorizes disciplinary action against a Respondent who is
guilty of dispensing, prescribing or otherwise distributing any controlled substance or
other drug not in the course of professional practice, or not in good faith to relieve pain
and suffering, or not to cure an ailment, physical in?nnity or disease, or in amounts

and/or for durations not medically necessary, advisable or justi?ed for a diagnosed

condition.

The facts in Section I constitute grounds for disciplinary action against Respondent?s

license to practice as a medical doctor in the State of Tennessee pursuant to TENN. CODE
ANN. 63?6?21 4(b)(l3) which authorizes disciplinary action against a Respondent who is
guilty of dispensing, prescribing or otherwise distributing to any person a controlled
substance or other drug it such person is addicted to using controlled substances without

making a bona tide effort to cure the habit ot?such patient.

U1

21. The facts in Section I constitute a violation of Rule 0f the Of?cial
Compilation Rules and Regulations of the State of Tennessee entitled General Rules and
Regulations Governing the Practice of Medicine and promulgated by the Tennessee State
Board of Medical Examiners which authorizes disciplinary action as follows:

Except as provided in subparagraph it shall be a prima facie
violation of T.C.A. 63-6-214(b) (4), and (12) for a physician to
prescribe or dispense any drug to any individual, whether in person or by
electronic means or over the Internet or over telephone lines, unless the
physician, or his/her licensed supervisee pursuant to appropriate protocols
or medical orders, has ?rst done and appropriately documented, for the
person to whom a prescription is to be issued or drugs dispensed, all of the
following:

1. Performed an appropriate history and physical examination; and

2. Made a diagnosis based upon the examinations and all diagnostic and
laboratory tests consistent with good medical care; and

3. Formulated a therapeutic plan, and discussed it; along with the basis for
it and the risks and benefits of various treatments options, a part of which
might be the prescription or dispensed drug, with the patient; and

4. Insured availability of the physician or coverage for the patient for
appropriate follow?up care.

 

POLICY STATEMENT

 

The Tennessee Board of Medical Examiners takes this action to protect the health, safety,

and welfare of people in Tennessee.

IV. ORDER

 

THEREFORE. in consideration ofthe above Findings of Fact and Conclusions ot?lsaw, it

is ORDERED, ADJUDGED, and DECREED as follows:

23.

24.

25.

Respondent?s Tennessee medical license number 27530 is hereby placed on
PROBATION for a period of not less than three years from the entry of this Order.
Respondent acknowledges that 'such probation is an encumbrance on his license.
Respondent must petition for an Order of Compliance and appear personally before the
Board for the probation of Respondent?s license to be lifted.
Respondent shall strictly adhere to the Tennessee Chronic Pain Guidelines, as amended
from time to time, including, but not limited to, the maximum opioid dose (currently 120
Morphine Equivalent Daily Dose units) for a physician to prescribe prior to referring the
patient to a pain specialist for a consultation and/or management. Should Respondent fail
to adhere to the Tennessee Chronic Pain Guidelines he shall be in violation of this Order.
Respondent shall be prohibited from prescribing controlled substances until he enters an
agreement obtaining practice monitoring.
Respondent shall obtain practice monitoring through Af?liated Monitors or another
practice monitoring program preapproved by the Board?s Consultant within thirty (30)
days of the entry of this Order. The monitoring agreement shall require the following:

i. The monitoring shall continue for a period of at least two (2) years.

ii. Respondent shall receive additional training in apprOpriate prescribing of
controlled medication and medical record keeping, if recommended by the
practice monitor or practice monitoring program. Said instruction shall be
in addition to any continuing medical education required to maintain
licensure.

Respondent shall not have less than ten (10) of his patients? records for

patients seen within the prior ninety (90) days receiving controlled

iv.

vi.

vii.

substances reviewed by the practice monitor every ninety (90) days. The
practice monitor shall determine which records to review and may at their
discretion review more than ten (10) of the Respondent?s controlled
substance records. if Respondent has not prescribed controlled substances
to at least ten (l0) patients during a prior ninety (90) day period,
Respondent shall notify the practice monitor of such, and submit to the
practice monitor a printout of the controlled substance monitoring
database for at least the prior ninety (90) day peiiod and all patients?
records for any patients who were prescribed controlled substances during
that time period.
The monitoring agreement must contain terms that provide adequate
safeguards protecting protected health information and electronic
protected health information to the satisfaction of Respondent?s employer.
Respondent shall comply with all recommendations of the practice
monitor pro gram.
The Respondent shall be solely responsible for the timely payment of all
costs associated with the practice monitor program.
Respondent shall cause the practice monitor to issue a report to the
Board?s Consultant every three (3) months beginning three (3) months
after the entry of this Order detailing the ?ndings of the practice monitor
in regards to the Respondent?s:

1 Compliance with practice monitor?s recommendations,

2. Completion of any educational program prescribed by the
practice monitor,

26.

27.

Respondent?s prescribing practices,

Li.)

4. Respondent?s medical record keeping, and

5. Respondent?s treatment of chronic or intractable pain.
Respondent must enroll in and successfully complete within one hundred eighty (180)
days of entry of this Order, the three (3) day medical course entitled ?Intensive Course in
Medical Documentation offered at The Case Western Reserve University Continuing
Medical Education Program at The Case Western Reserve University School of Medicine
located in Cleveland, Ohio, or an equivalent course pre?approved by the Board?s
Consultant. Within thirty (30) days after completion of such course, Respondent shall
mail or deliver proofof compliance with this course requirement to: Disciplinary
Coordinator, The Division of Health Related Boards, Tennessee Department of
Health, 665 Mainstream Drive, Nashville, Tennessee 37243.
Respondent must enroll in and successfully complete, within one hundred eighty (180)
days of the entry of this Order, the three (3) day medical course entitled, ?Prescribing
Controlled Drugs: Critical Issues and Common Pitfalls? offered by Vanderbilt
University Medical Center or an equivalent course approved in advance in writing by the
Board?s Medical Director. Within thirty (3 0) days after completion of such course,
Respondent shall mail or deliver proof of?compliance with this course requirement to:
Disciplinary Coordinator, The Division of Health Related Boards, Tennessee
Department of Health, 665 Mainstream Drive, Nashville, Tennessee 37243.
Respondent shall obtain a clinical competence evaluation and report from the Center for
Personalized Education for Physicians. Such evaluation and report shall include a

neurological and component. Respondent shall obtain such an evaluation

31.

and report within six (6) months of the entry of this Order. Respondent shall provide a
copy of the report from this evaluation to the Board.

Respondent shall pay fourteen (l 4) type A civil penalties of one thousand dollars
($500.00) each, one for each patient for whom Respondent?s care fell below the standard
of care for a total penalty of seygn thousand dollars These penalties shall be
paid by submitting a certi?ed check, cashier?s check or money order payable to the State
of Tennessee, which shall be mailed or delivered to Of?ce of Investigations; Ann:
Disciplinary Coordinator; 'li'ennessee Department of Health; 665 Mainstream Drive;
Nashville2 Tennessee 37243. These civil penalties are due within one year of the entry of
this Order.

Respondent must pay, pursuant to TENN. CODE ANN. 63-1-144, the actual and
reasonable costs of prosecuting this case to the extent allowed by law, including all costs
assessed against the Board by the Division?s Bureau of Investigations in connection with
the prosecution of this matter. These costs will be established by an Assessment of Costs
prepared and ?led by counsel for the Department. Said costs shall not exceed one
hundred thousand dollars 

Any and all cost shall be paid in full within one year after the issuance of the Assessment
of Costs. Payment shall be made by certi?ed check, cashier?s check, or money order=
payable to the State of Tennessee, Department of Health. Any and all payments shall be
forwarded to the Disciplinary Coordinator, The Division of Health Related Boards,
Tennessee Department of Health, 665 Mainstream Drive, Nashville, Tennessee. A
notation shall be placed on said money order or such check that it is payable for the

Assessment of Costs ot? Brian Waggoner, Docket No. 17.] 8-139095A.

I 

  



Tennessee Board of Medical a miners

CERTIFICATE OF SERVICE

The undersigned hereby certi?es that a tme and correct copy of this document has been

served upon Respondent and Respondent?s counsel by United States Mail at the following

addresses 

Thomas A. Wisernan, Esq.

Kimberly G. Silvus, Esq.

Ann M. Frazier, Esq.

WISEMAN ASHWORTH LAW GROUP, PLC
511 Union Street, Suite 800

Nashville, TN 37219-1743

Brian Waggoner, MD.
428 Willow Ave.
Cookeville, TN 38501

  

Alldl'?w 

  

 

RECONSIDERATION, ADMINISTRATIVE RELIEF AND JUDICIAL REVIEW

Within fifteen (15) days after the entry of an initial or ?nal order, a party may ?le a
petition to the Board for reconsideration of the Final Order. If no action is taken within twenty
(20) days of ?ling of the petition with the Board, it is deemed denied. TENN. CODE ANN. 
5?317.

In addition, a party may petition the Board for a stay of the Final Order within seven
(7) days after the effective date of the Final Order. TENN. CODE ANN. ?4?5-3l6.

Finally, a party may seekjudicial review by ?ling a petition for review in the Chancery
Court of Davidson County within sixty (60) days after the effective date of the Final Order. A
petition for reconsideration does not act to extend the sixty (60) day period; however, if the
petition is granted, then the sixty (60) day period is tolled and a new sixty (60) day period
commences from the effective date of the Final Order disposing of the petition. TENN. CODE

ANN. ?4-5-322.

 

 

 

?nal-cw Commit No. 027160
Assistant (.iencr il (in I sel
Of?ce oflfien ?al Cigsel
Tennessee Deparlment of Health
Plaza 1, Suite 210

665 Mainstream Drive
Nashville, Tennessee 37243

(615) 741?161]

CERTIFICATE OF FILING
This Order was received for ?ling in the Of?ce of the Secretary of State, Administrative

Procedures Division, and became effective 2011.

My.?

Richer ollier, Director
Administrative Procedures Division

 

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