The Michael Scally Case: How Political Subversion of the Law Reaches the Professions through the Anti-Steroid Crusade

Introduction – My Interest in the Political Use and Abuse of Legislation Criminalizing Use of Anabolic Steroids

In his political blockbuster on the possible direction of a second-term Bush Presidency,[1] Charles Tiefer made some stunningly accurate predictions. Those predictions addressed the propensity of the current Administration for making political use of the law to achieve conservative goals, both social and economic. [2]

During my nascent second career, four, part-time years of law school, it was my privilege to work as Professor Tiefer’s research assistant, on several projects: an appeal against the Secretary of Commerce; [3] an article on the regressive tax cuts of the Administration’s first term; [4] and other research as work on his book progressed. Exposure to several of the key research questions during my second and third years piqued my curiosity about politicization of the law in two much more specific areas: military procurement and government contracting, [5] and drug – specifically, anabolic steroid – enforcement. [6]

With several local bodybuilder cops members of my Baltimore area gym, and the issue of baseball’s steroid habit resurfacing in the mainstream media in 2003 and 2004, police use of anabolics quite literally jumped off the page at me. Serendipitously, in Manhattan on a pleasure trip, I happened upon notice of the Foley/Grettler case screaming “hypocrisy” from the New York Post’s headline on a newsstand. [7] Steroid use by police officers seemed, to me, to conform to the “high technology” aspects of modern, paramilitary policing, especially when traced to the evolution of the Muscular Christianity movement in the United States. [8]

Political use of the law is particularly implicated in steroid prosecutions of police officers, because cops on steroids are a damning indictment of the current policy and regime of drug enforcement in this country, representing the hoax of prohibition falling in upon itself. That, however, has not stopped the prohibitionists: instead, they have grown even more determined to adopt increasingly draconian enforcement schemes. [9] Apparently not convinced that the penal warehousing of thousands of young, black men for crimes of addiction is simply bad policy, the Bush Administration is as fixated on the “lock ‘em up” mentality as the Reagan Administration ever was. [10]

Where steroids are concerned – drugs that don’t even have an addictive profile by both the DEA’s and the AMA’s own admissions – its heightened prosecution efforts make absolutely no sense, particularly when one considers the Administration’s willingness to turn its head to the huge menace of crystal methamphetamine. Blindfolded by the corrupting influence of the pharmaceutical industry’s millions, a special interest that resisted legislative efforts to restrict sales of cold remedies containing the crystal meth ingredient pseudoephedrine, parading out baseball players for a moralistic public scolding last year was far more politically utilitarian. [11]

The selective prosecution of police officers for steroid use and selective parading out of beefed-up baseball players share several features with the topic this article will explore, i.e., the professional decertification of Dr. Michael C. Scally by the Texas State Board of Medical Examiners. [12] My interest in Dr. Scally’s case is a natural extension of my interest in the topic of politicized steroid “prosecutions” generally. The imposition of the sanction of professional decertification functions in much the same way as the imposition of sentence in a criminal proceeding: its purported design is to protect public safety. It also, however, makes the sanctioned person a social and professional pariah.

In the author’s view, Dr. Scally – like police officers – is being selectively targeted for professional discipline, because he challenges the foundational policy upon which current therapeutic, legislative and enforcement practice is shakily built: that anabolic steroids are unqualifiedly “bad” drugs without legitimate therapeutic application. Put more bluntly, his research and work does not conform to the doctrinaire mindlessness of current dogma. His professional disciplinary proceeding also served specific political ends for the Texas State Board of Medical Examiners, political ends that portend to pose a tyranny of a highly misinformed majority, guided by an unchecked executive, upon the discretionary, professional practice of medicine, the kind of autocratic authority bicameral representative government and an independent judiciary is supposed to prevent. [13]

Several months ago, for this website, I wrote another short piece as an “open letter” to the members of the House Committee on Government Reform, the same Committee that held the now infamous hearings last March on steroid use within the ranks of professional baseball. [14] As I noted in the piece, the religious metaphor was not only invoked in the title of the Committee Report, it was used repeatedly throughout the proceedings. The hearings, moreover, tended to prove the already obvious: that steroid legislative policy has nothing to do with scientific reality. Instead, legislative policy criminalizing use and possession of anabolics not only is ill-informed; rather, it is intentionally ill-informed, with lawmakers in fact choosing to ignore scientific fact for doctrine: steroids create physical and psychological dependency, are a threat to health, safety, and morals, because – fundamentally – they constitute “cheating.”

As I point out in the pages that follow, use of the term “doctrine” is not coincidental: current policy emerges from the inherently religious project of Muscular Christianity in America, out of which many of which America’s rugged team sports – particularly football – arose. [15] The repugnance of Congressional leaders to steroids in competitive sport derives – by way of the evolution of competitive football in America out of Muscular Christianity – directly from St. Paul. [16] The science of steroids, therefore, has been deliberately suppressed, to frame the conversation purely in moral terms. Conversely, self-administration of the drugs and routine overdosing by athletes to evade detection by law enforcement – being the only current modality of use – are never within the parameters of the discussion.

Shortly after the hearings, HBO Real Sports challenged those doctrinaire assumptions in an extended report by Armin Keteyian. [17] In his report, Keteyian concluded the “contrarian” position: that moderated, controlled and monitored steroid use by adult males not only presented no significant health risks, but, in fact, might actually be beneficial. It was as if Keteyian had spoken into the abyss, the silence from legislators was so deafening. To date, the author is unaware of a single attempt to refute or even seriously dispute any of Keteyian’s basic assertions in the piece. With current steroid policy more a belief system than a scientific hypothesis, the authoritarianism of current policy has evaded intelligent argument largely because it is framed around “faith,” rather than reason.

Legislators’ collective refusal to recognize the fallacy of current legislative and enforcement policy, however, is all too typical: political expediency, rather than scientific credibility, drives legislative and law enforcement policy with respect to both anabolics and many other current issues of great public importance. The Scally case demonstrates that current political expediency on the question of steroid use has now pervaded the arena of administrative law, threatening to compromise the practice of medicine by supplanting science with a political agenda, in the very profession where the scientific basis for a therapeutic regime must be the only controlling standard. Understanding how current steroid dogma has expanded its reach to threaten the scientific independence of the professions requires exploration of some of the factual underlay and background of Dr. Scally’s fight for professional survival.

The Cultural and Political Context: Patronage, Evangelicalism, the State of the Judiciary, and Use and Abuse of the Law in Texas

Because Dr. Scally is a licensed physician in Texas, arguably the most highly politicized and ostensibly corrupt state government in the nation (excepting, perhaps, West Virginia and Louisiana, and the author means no disrespect to the fine citizens of any of those sister states), a few facts about the state of the Texas judiciary, the Texas State Board of Medical Examiners, political patronage and political use and abuse of the law in Texas are in order here for the purpose of background. Consider the following:

1. Texas has established itself as the benchmark jurisdiction for abusing the law for political purposes. For example, Texas’s radical redistricting plan, largely engineered by Tom Delay and associates, is currently under review by the Supreme Court of the United States, a plan that ensured Republicans would pick up several seats in the House of Representatives and thus ensure Republican control. [18] News accounts also suggest abuse of the Internal Revenue Service as an instrument of political intimidation against the non-profit, Texans for Public Justice, by a Delay political ally, Sam Johnson. [19]

2. The Tom Delay/Jack Abramoff/Grover Norquist/Ralph Reed influence peddling/lobbying scandal has so many tentacles extending both to and from Texas, it’s hard to keep track of them. Abramoff’s alleged funneling of money to Delay’s political action committee is what has the Congressman currently under criminal indictment in Texas. More recently, the New York Times has suggested possible links between Abramoff, initimating he was instrumental in orchestrating meetings between contributors and the President of the United States. [20]

3. Texas’s judiciary has a demonstrated history of partisanship and lack of political independence, elected by what former Chief Justice, Tom Phillips called the “partisan contested high-dollar method of choosing judges.” [21] Texas Supreme Court Justices, thus, are blatantly political animals, with critics leveling accusations of conflict: campaign contributors frequently have pending business before the court. [22] Each of the sitting Justices on the conservative Texas Supreme Court is also a Republican. “According to Texans for Public Justice, recent campaigns of seven sitting [Texas} Supreme Court Justices raised nearly $9.2 million in contributions of $100 or more. Of this $9.2 million, forty percent ($3,690,363) was given by contributors who are closely linked to parties on the court docket for the period January 1, 1994 to October 30, 1997.” [23]

4. Texas’s death penalty jurisprudence, especially, has made it a target of particular derision, even before the conservative bench of the Supreme Court of the United States. [24] Texas executes more inmates than any other state and at the time of the Roper decision led the nation in the execution of juvenile offenders.

5. Both former governor George W. Bush and current governor Rick Perry have established salutary reputations for stacking administrative agencies heavily with political appointees who were campaign contributors. In the case of the Texas Bush Administration, three appointees to the Texas State Board of Medical Examiners were heavy Bush campaign contributors: Thomas D. Kirksey, Lee S. Anderson, and Peter Chang. [25] The political appointment process in Texas is particularly rife with cronyism and patronage, because Texas law imposes no limits on individual campaign contributions to state officials. [26] As such, administrative agencies in Texas – like the Board of Medical Examiners – are predisposed to political manipulation. [27] It comes as very little surprise, therefore, that the Bush Administration has chosen to bring its highly politicized management style to Washington, alienating many career civil servants in the process. [28]

6. Finally, consider the conflicted cultural relationship Texas has with its unabashed addiction to all things hypermasculine by virtue of being the Mecca of dispensational, fundamentalist Christianity. [29] This contradiction of Texas “culture” has always fascinated me. Think “Dallas Cowboys,” for instance, and you’re at once confronted with the conflicting images of Tom Landry team prayer meetings and the strong, silent, Protestant stoicism of Roger Staubach, counterposed against the rock star charisma of Troy Aikman, hulking lineman muscle of Bob Lilly and bodacious, buxom bawdiness of the Dallas Cowboy Cheerleaders.

Camille Paglia has repeatedly commented on the tension between the body-hating puritan and body-celebrating pagan aspects of American culture. She relates this tension to the competing elements of the beautiful imagery of pagan, classical Mediterranean democracy (our national monuments are all pagan temples, as she points out, and the Herculean torso the bodybuilding ideal) against the Northern European Protestant tradition of removing images from churches so as not to distract from the purity of the Scriptural text. [30] This, she believes, set up a battle in Western culture between word and image. [31]

Today, in Texas that battle between word and image rages in stark counterpoint. In the sanctification of the rites of Texas high school football, [32] steroid use by teenagers there was bound not only to happen, but to draw particular social – and eventually legislative – opprobrium. [33] The enormous popularity of high school football in Texas does not merely coincide with Texas’s quasi-theocratic politics and position as the epicenter of Protestant fundamentalism: they are all part and parcel of the evolution of the same socio-religious cultural influences. When one juxtaposes the convergence of the national steroid debate around use of the drugs by high school football teams in Texas, against subsequent targeting of a Texas physician for professional discipline, the politically-driven result in Scally was inevitable, as will be seen.

We have described current anabolic steroid legislative and enforcement policy as a “belief system,” or, alternatively as “doctrine.” Dr. Scally’s attorneys described the State Board of Medical Examiners’ expert witness testimony as “dogma,” as will also be seen. [34] That choice of terms could hardly be more apropros. To a certain extent, the political establishment has been willing to tolerate the use of anabolic steroids by weightlifters, bodybuilders and strength athletes in the Fifties, Sixties and even through the late Seventies, because these sporting activities were largely individual, viewed to be at the fringes of competitive sport, and did not implicate the competitive rigor and masculine testing of team sports that grew in popularity directly out of the theological project of Muscular Christianity.

Once use of anabolics in the competitive team sports of football and baseball burst onto the scene in the late Seventies and – particularly – the Eighties with the integration of strength training by athletes of all competitive stripes (notably, the stories of Steve Courson and Lyle Alzado in professional football), a huge, moralistic backlash ensued. [35] Suddenly, the discussion was no longer framed around science, about how the drugs – if used safely – could improve human performance and give athletes a technological edge like any other technological improvement. Instead, the discussion became one of morals that used moralistic terms like “cheating” to legitimize the paucity of scientific bases for development of policy. In fact, this is still the rule, rather than the exception. [36]

The Taylor Hooton Story: Why the Texas State Board of Medical Examiners Was Politically Predisposed to Sanction Dr. Scally

As use of anabolics in competitive sports moved down the competitive chain to high school sports, the moralistic “cheating” hysteria found some basis in scientific fact: steroid use by adolescents poses particular, unacceptable risks. To those in high school athletic circles, the Taylor Hooton story is now familiar: the conservative, “born-again” Christian high school baseball player from the upper middle-class Dallas suburb of Plano, covertly self-administered AAS to the complete bafflement of his parents. [37] On July 15, 2003, he committed suicide by hanging. The Hooton family was – naturally – devastated. After learning posthumously of their son’s steroid use, and believing steroids were implicated in his suicide, the Hooton family – both disturbed and incredulous at the resistance of West Plano High School Administration either to recognize or address the prevalence of steroid use by its high school athletes – formed an educational foundation. Taylor’s father, Don, hit the lecture circuit to join the anti-steroid crusade. Somewhat unsurprisingly, the Taylor Hooton Foundation posts a scriptural excerpt on the banner of its website, from the book of Genesis, chapter fifty (50), verse twenty (20): “You intended to harm me, but God intended it for good to accomplish what is now being done, the saving of lives.” [38]

On February 6, 2005, the Dallas Morning News published a three-part series on steroid use and abuse by high school athletes, prominently featuring Don Hooton as an outspoken “activist” in the fight against steroid use by student athletes. [39] Proposed anti-steroid educational legislation in the Texas House and Senate followed. [40] Last year, Mr. Hooton’s purpose in testifying before the House Committee on Government Reform’s inquiry into steroid use by professional major leaguers – protecting student athletes – became a call to action around which the politicians organized. [41]The legitimacy of Mr. Hooton’s parental concerns, and the legitimacy of his outrage at having his son covertly self-administering powerful prescription medicines notwithstanding, several things about his testimony deserve scrutiny.

First, self-administration of any prescription medication by anyone without both legitimate need and without the objectivity of a medical professional’s oversight is fundamentally a bad idea. This, precisely, is the problem of which Burge complained: criminalizing use of anabolics has pushed them underground, giving rise to an “enforcement resistant” chain of supply, so they are not only being routinely self-dosed but routinely and exclusively self-overdosed by all sorts of athletes. [42] In Texas, this is particularly problematic, because one of the main sources of illegitimate supply is – indeed – very geographically close: just over the U.S. border to the south, in Mexico. [43]

In the hands of a high school athlete, the consequences of steroid self-administration are hugely problematic, because of the emergence and development of the delicate balance of hormones that are a natural part of the masculinizing maturation process. However, even adult, professional athletes have neither the qualification nor the medical objectivity to oversee programs of self-administration. Canseco’s book proves this beyond any reasonable doubt. [44] None of this ought to come as a surprise: Burge predicted this very problem twelve years ago, but because he couched his argument not only in scientific reality, but in social reality – rather than pandering to the political extremes – the politicians turned a deaf ear. [45]

Second, a lot of the scientific data on the mood altering effects of anabolic steroids is still out. Most of the data to support claims of “roid rage” is anecdotal. That, however, is not to say that incidents of heightened aggression among athletes taking steroids can be summarily dismissed: there are too many of the same kinds of stories. However, this argument also cuts both ways: on the one hand, there is documented evidence that AAS have positive mood-altering psychiatric application for treating depression in middle-aged men; [46] on the other, episodes of “roid rage” seem to correlate directly with dosage levels. [47] In most documented episodes, the athletes in question are using high or very high dosages of anabolic steroids, well beyond the kinds of dosages they would encounter in a therapeutic setting.

The links to depression and suicidal ideation after cessation of use seem more tenuous. The NIDA and Brower both suggest a connection between “high dosages,” irritability, aggression and possible psychological dependence on steroids, leading to the “withdrawal” symptoms of depression, fatigue, diminished libido, insomnia, and other characteristics, characteristics that would merit medical intervention. [48] It therefore makes a certain amount of sense that in a person using steroids in high dosages, a severe depressive episode could lead to suicidal ideation. As far as the author is aware, AAS as a causal factor in increased rates of teenage suicide has not been definitively established. [49]

In counterpoint, the on-camera testimony of John Romano and other interviewees on the Keteyian Real Sports segment showed healthy, adult men commenting repeatedly about the “overwhelming sense of well-being” they felt with “responsible use” of anabolics. [50] It makes one wonder why this is problematic.

Third, legislation criminalizing steroid use by healthy, adult men out of concerns for adolescents is legislative doublespeak. If the legislative purpose of heightened prohibitions is to keep steroids out of the hands of teenagers, the most effective way of doing that is to legalize and regulate use of the drugs. If both supply and dispensation is strictly controlled by pharmacists and physicians – like Botox – both black market supply and self-dispensation as the principal mode of use would inevitably diminish and, hopefully, simply go away. [51] One thing is certain: prohibition has not worked.

Expanding Prohibition by “Pursuing” and Stigmatizing Physicians:

The Scally Case

This lengthy introduction has been necessary to show three things: first, Texas law and policy are driving national law and policy; second, Texas policy makers are heavily influenced by cronyism, religious fundamentalism, and belief, rather than science; and, third, because of its current reliance on a “faith-based” rather than a “science-based” paradigm, the Government has elected to pursue an expanded “thou-shalt-not,” draconian system of prohibition as its steroid legislative policy. It is the author’s opinion that this stepped-up enforcement policy was directed at physicians in Texas, after the Taylor Hooton story broke.

In his 1994 seminal law review piece, John Burge wrote:

“The criminal aspects of steroid use and vigorous federal enforcement efforts have further distanced the medical community from the wide-spread self-administration of steroids. Today, it is unlikely that the average steroid user will be able to obtain medical supervision…

Many of the federal investigations have been directed at physicians who have prescribed steroids to athletes or other individuals desiring to increase muscle growth – a practice this Article advocates should be the norm. One of these physicians, Dr. George Zahorian claimed he sold steroids to World Wrestling Federation owner Vince McMahon and various professional wrestlers including Hulk Hogan and Rowdy Roddy Piper. Dr. Zahorian was investigated and prosecuted by the DOJ…. Eugene J. Thirolf, Senior Litigation Counsel in the DOJ’s Office of Consumer Litigation, commented: “The Zahorian Case was important. It made clear that those who distributed these products in violation of that law were going to be prosecuted, even if they are physicians…

United States Attorney Terry A. Bowers stated the intention of the Justice Department to continue pursuing physicians…” [52]

Though Dr. Scally’s case is not a criminal prosecution, it necessarily follows that if the executive branch – law enforcement – can target physicians for selective criminal enforcement action, i.e., prosecution, it can also single out a physician for selective administrative enforcement action, – i.e., professional discipline – by an executive agency. The excerpt from Burge also demonstrates conclusively that prosecutors – political animals just like political appointees to executive agencies – determine to some extent, often based at least in part on their own political agenda, who they will and will not “pursue.” [53] In the case of the Texas Medical Board against Dr. Scally, identification of the problem of high-school athlete use of steroids converged temporally with political pressure on Governor Perry, to heighten disciplinary actions against “bad doctors” in concert with his push to have Texas voters approve Proposition 12.

Proposition 12 purported to amend the Constitution of Texas to impose radical, pro-physician tort reform in very broad ballot language: “A constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the legislature to determine limitations on non-economic damages.” As Prop 12 was being tirelessly promoted by Governor Perry, the Dallas Morning News, beginning in August, 2002, ran a series of articles highly critical of the Texas State Board of Medical Examiners in physician disciplinary proceedings. [54] The Governor, earnestly campaigning for the passage of Prop 12 and medical malpractice caps in Texas – in an apparent effort not to look the part of a sell-out to the special interests, giving physicians and insurance companies a legislative plum – promised to get tough on bad doctors, increasing the budget of the TSBME. [55] By Spring 2003, S.B. 104, introduced by Sen. Jane Nelson (R.), had passed both the Texas House and Senate, giving the State Board of Medical Examiners more money and greater power to “prioritize” hearing certain kinds of cases. [56] In July, 2003, the Taylor Hooton story broke. Events converged. Getting rid of “bad” doctors – like doctors who prescribe anabolic steroids for patients, even if legitimately – became a potent political tool in the hands of an executive that wanted to see Prop 12 pass in September. And pass it did, by a very slim margin. [57]

Disclosure: “Open Records” Closed to the Public

One of the challenges of writing this article has been assembling the information, not that there is any lack of it. The Texas Medical Board, however, in response to Millard Baker’s request, the proprietor of this website, solicited an opinion from the Attorney General, asking him to exempt much of the file material from disclosure as “investigative information.” [58] This exemption apparently extended even to responsive pleadings, motions, etc., filed by Dr. Scally’s attorneys on his behalf, none of which were part of the TMB’s original disclosure under the statute. [59]

The author, subsequently, directed an independent request to Board Assistant General Counsel, Robert Simpson, Esq. [60] The State’s initial disclosure to Mr. Baker was limited to the following items: 1) A letter to Mr. Baker dated December 21, 2005, as well as 2) another letter dated the same date from Counsel Simpson to Ms. Cary; 3) Counsel Simpsons’s January 9, 2006, letter to Katherine M. Cary, Esq., of the Office of the Attorney General, requesting an Open Records determination; 4) a copy of the Board’s Complaint; 5) a copy of the Board’s First Amended Complaint; 6) a copy of the Final Order; 7) a copy of a subsequent consent or Agreed Order; 8) a Public Information /Physician Profile on Dr. Scally, ostensibly reproduced from the Board’s website, dated December 21, 2005.

To say that information telling Dr. Scally’s side of the story was nowhere to be found in the TMB’s initial disclosure is an understatement. The Texas Medical Board, rather, sought an advisory opinion from the Attorney General of Texas to substantiate extensive nondisclosure of information. [61] It, thereafter, refused to release copies of even innocuous materials such as Dr. Scally’s responsive pleadings to Mr. Baker. This is significant for at least three reasons: first, Dr. Scally has challenged the expertise of the State’s experts; second, Dr. Scally has challenged the State’s findings of fact (several of which are simply categorically wrong); [62] third, because the evidence in the case is largely confidential, protected by statute against public disclosure as “investigative information,” the agency and its experts are largely insulated from any public accountability. [63]

This is important for another reason: the high level of deference afforded the agency’s determination by Texas appellate courts. Where the agency’s enforcement power is politically manipulated, brought to bear against a targeted class of practitioner – for instance, a physician who has treated athletes with known histories of anabolic steroid self-administration – judicial review, i.e., the process of appeal, is not, per se, an adequate procedural safeguard. This, however, surely would not be obvious to the public, because most laymen view an “appeal” as a complete retrial of the facts of each case on the merits.

Appellate Review: How Evidentiary Standards and Presumptions on Appeal Inherently Favor Affirmance of Agency Decisions

The scope of review on appeal, however, varies in different contexts. For the most part, complete – or de novo – appellate review of a lower court’s or administrative law judge’s (ALJ’s) ruling on both findings of fact and conclusions of law at issue, is limited to such overarching or sweeping issues as constitutional questions, to name one example. [64]

In administrative law proceedings in Texas, the standard of review is particularly deferential to the executive agency in two specific ways: 1) the quantum of proof required of the administrative agency; and 2) the quality of proof required. With respect to the quantum of proof, there are several evidentiary standards in civil and criminal proceedings. The first is a “preponderance” standard, meaning, more probable than not; the typical standard in civil proceedings, preponderance is the evidentiary standard in Texas administrative proceedings. Thus, the Texas Medical Board, the party bringing the disciplinary complaint, was only required to prove by a 51% probability that what it alleged against Dr. Scally was true. [65] Under a “clear and convincing” evidentiary standard, were that the requirement, the State agency would have been required to produce proof more or less in the range of 66-75% (only an illustrative figure) probability. Were “beyond a reasonable doubt” the evidentiary standard, the proceeding would not be an administrative enforcement action, but a criminal prosecution, where the State would be required to adduce evidence showing that the accused committed the acts proving guilt in the 85-90% (again, only an illustrative figure) probability range.

With respect to the quality – or weight – of the evidence, again, the State agency is afforded the benefit of the doubt: the evidence must only be “substantial.” [66] Under a substantial evidence test, a reviewing court must affirm the judgment of the administrative law judge, if evidence, relevant to a reasonable mind, deemed adequate to support a conclusion of fact, has been admitted. [67] The evidence must “not be large or even considerable in amount.” [68]

Other presumptions on appellate review weigh heavily in the Board’s favor:

1) The agency is not required, on appellate review, to prove that the administrative law judge reached the correct conclusion; rather, to affirm the administrative law judge, there must merely be “some basis” for the agency’s decision in the record; [69]

2) A reviewing court presumes that the agency’s decision is correct, based on substantial evidence, and the burden is on the challenging party to prove otherwise; [70]

3) A reviewing appellate tribunal may not substitute its judgment for the agency’s determination; [71]

4) A reviewing appellate tribunal must defer to the administrative law judge’s assessment of witnesses’ credibility; [72]

5) To prevail on appeal, the party challenging the agency decision must prove that a lack of substantial evidence has prejudiced his or her substantial rights. [73]

With the deck thus heavily stacked in its favor, as in most criminal proceedings today, [74] the State agency thus proceeds to a professional disciplinary hearing virtually assured that merely by bringing a complaint and presenting any credible evidence whatsoever, not only is the ALJ likely to adopt its proposal for decision, i.e., to revoke the physician’s license; rather, the agency is also virtually assured that the ALJ’s decision will withstand appellate scrutiny. [75]

The Facts: Dr. Scally’s Practice and Work

Michael C. Scally, M.D., is an MIT-educated chemist and a Harvard Medical School-trained physician. Because Dr. Scally has already posted a letter on this Internet site, and – owing to the estimated length of this Article – it is not the author’s purpose to reiterate information already freely available to readers at the click of a mouse. [76] Suffice it to say that Dr. Scally’s peer-reviewed publications on the topic of hypogonadism after cessation of self-adminstered anabolics, set him apart as an expert on questions of the medical applicability of androgenic, anabolic steroid therapy, medical expertise that is far too rare.

Allegations of the State Medical Board’s Complaint

Because Dr. Scally’s case is heavily factual, and even more heavily scientific, a complete recounting of the facts is completely beyond the scope of this discussion. Therefore, the author will attempt to expose the State’s essential allegations and the ALJ’s findings of facts, grouping these together where possible for the sake of brevity. In a ten-count Complaint which the Texas State Board of Medical Examiners subsequently amended, it alleged the following:

1. That Patient D.G. was treated for weight loss by Dr. Scally for a period of approximately two years between February, 1996 and March, 1998, given weight loss medications Phentermine [77] and Pondimin [78] over the course of her period of treatment by Dr. Scally. D.G. was five feet six inches tall (5’6”) and weighed one hundred twenty-four (124) pounds at the time she initially presented for treatment. The patient was admitted to St. Luke’s Hospital on November 19, 1998, weighing one hundred twenty (120) pounds and complaining of respiratory distress. She confirmed alcohol and cocaine abuse at the time of her admission. The TBSME alleged that prescribing her dietary drugs was below the standard of care.

2. That Patient T.C., a forty-nine-year-old (49) man presented with low testosterone levels in February, 2000. Dr. Scally diagnosed the patient with hypogonadism [79] and prescribed HCG, [80] Clomiphene Citrate, [81] Tamoxifen, [82] Proscar [83] and Albuterol. [84] The Board took issue with prescription of the drugs, the “inadequacy” of Dr. Scally’s medical records, and his failure to conduct sufficient tests to rule out other diagnoses other than hypogonadism.

3. That Patient M.W., a thirty-year-old man (30) was a former user of anabolic steroids. He presented in January, 1999, complaining of depressed libido and testicular atrophy. Dr. Scally diagnosed him with hypogonadism, and prescribed Arimidex, [85] Testosterone Cypionate, [86] Anadrol-50, [87] Humatrope, [88] Oxandrolone, [89] Oxandrin, [90] Winstrol, [91] Testosterone Propionate, [92] HCG, Clomiphene Citrate, Tamoxifen, Proscar and Albuterol. The Complaint restates the same concerns with respect to standard of care, as in the allegation of Count II.

4. That Patient J.S. was a thirty-two-year-old (32) male, who had used both anabolics and insulin for three years. He presented in February, 2000, with complaints of depressed energy and libido levels. Dr. Scally diagnosed him with hypogonadism, and prescribed Testosterone Cypionate, Anadrol-50, HCG, Clomiphene Citrate, Femara, [93] Niaspan, [94] and Albuterol. The Board reiterated the same medical treatment concerns.

5. That Patient J.M. was a forty-nine-year-old (49) male, who presented in April, 1999, with a complaint of depressed libido, erectile dysfunction and weight gain. Dr. Scally diagnosed him with hypogonadism, ruling out secondary pituitary dysfunction, and prescribed him Arimidex, [95] Testosterone Cypionate, HCG, Tamoxifen, Proscar, Trazodone, [96] L-Tryptophan, [97] Phentermine, Valium, [98] Eldepryl, [99] Tamiflu, [100] Femara, and Caverject. [101] The Board reiterated the same medical treatment concerns.

6. That Patient T.W. was a thirty-eight-year-old (38) male, complaining upon presentation with depressed libido, hair loss, gynecomastia, fatigue, depression and insomnia. He had a history of use of anabolic steroids. Dr. Scally diagnosed the patient with hypogonadism and weight gain, and prescribed Arimidex, Testosterone Cypionate, HCG, Tamoxifen, Proscar, Femara, Clomiphene Citrate, Humatrope, Nandrolone Decanoate, [102] Androl-50, Oxandrolone, Viagra, Niaspan, and Cytomel. The Board reiterated the same medical treatment concerns.

7. That Patient J.B. was a twenty-eight-year-old (28) male, who presented with complaints of decreased libido and weight loss. He had a history of use of anabolic steroids. Dr. Scally prescribed Arimidex, Testosterone Cypionate, HCG, Tamoxifen, Femara, Clomiphene Citrate, Androl-50, Oxandrolone, Niaspan, Albuterol, Minocycline, [103] and Differin-Gel. [104] The Board reiterated the same medical treatment concerns.

8. That Patient J.Bi. was a forty-four-year-old (44) female, who presented on March 13, 2000, with a history of clitoral enlargement, weight loss, masculine voice and acne. She had been using Winstrol for approximately two months. Dr. Scally prescribed Proscar, Albuterol, Pyridium, [105] Accutane, [106] Dyazide, [107] Oxandrolone, Minocycline, Niaspan, Andro-Gel, [108] and Winstrol. The Board reiterated the same treatment concerns.

9. That Patient S.L. was a fifty-seven-year-old (57) male, who presented in August, 1999 with a prior diagnosis of hypogonadism, chronic elevated PSA (prostate-specific-antigen), erectile dysfunction, elevated TSH (thyroid stimulating hormone) and gynecomastia. The patient had a prostate biopsy which was negative, a two-three year history of hormone replacement therapy and prior ineffective use of Viagra. Dr. Scally prescribed Testosterone Cypionate, HCG, Tamoxifen, Proscar, Clomiphene Citrate, Humatrope, Oxandrolone, Niaspan, Etdolac, [109] Albuterol, Winstrol, Deprenlyl, [110] Cardura, [111]Halostensin, [112] Bumex, Claratin D, [113]Arimidex, Dyazide, Terbutraline, [114] Caverject, and Tri-Mix. The Board reiterated the same treatment concerns.

10. That Patient S.D. was prescribed a variety of drugs commencing in July, 1998, allegedly for “bodybuilding” purposes, including HCG, Clomiphen Citrate, Tamoxifen, Femera, Depo-testosterone, Nandrolone Decanoate, and Femara. The Board reiterated the same treatment concerns.

Stated briefly, the Texas State Board of Medical Examiners disciplined Dr. Scally for three things: off-label prescription of medicines, particularly anabolic steroids and testosterone derivatives, which, as will be seen is not below the standard of care; “incomplete” – meaning “illegible” – medical records, which standard it invented post-facto applied to Dr. Scally uniquely; and insufficient diagnostic testing to bear out his diagnosis of hypo-gonadism in patients.

When the record is read as a whole, what emerges is that the Texas Medical Board was predisposed to discipline Dr. Scally, because it needed an anabolic steroid villain: in the highly politicized atmosphere of Texas, with teenagers committing suicide in Dallas, revelations of steroid use on the high school grid iron, the State Board of Medical Examiners newly empowered to go after “bad” doctors so as not to make the governor look like a special-interest sell-out to the AMA [115] and insurance industry groups, Dr. Scally’s professional disciplinary action served a very specific political purpose for the Board of Medical Examiners.

Counterpoint: Dr. Scally’s Challenge to the State’s Allegations, Witnesses and the ALJ’s Findings of Fact and Conclusions of Law

In response, Dr. Scally’s attorney, L. T. Bradt, Esq., filed objections to the ALJ’s Proposal for Decision, along four major lines of attack: 1) that the Board presented no competent expert testimony to support its case; [116] 2) that the ALJ impermissibly ignored admissions and stipulations entered into evidence; [117] 3) that the ALJ imposed artificial record-keeping requirements upon Dr. Scally (i.e., legibility) that heretofore did not exist; and, 4) that the “standard of care,” advocated by the Board experts, i.e., “watchful waiting” or “tapering,” applied to a course of therapy for patients who wished to cease use of anabolic steroids, had no basis in the scientific literature. Further, neither physician had any experience with this “standard of care.”

After noting these broad lines of attack against the Board’s case, Mr. Bradt then proceeded to martial an almost insurmountable attack of eight hundred and thirty nine (839) specific objections to findings of fact and conclusions of law in the proceedings, and two hundred and seventy one (271) objections to the ALJ’s findings of fact. Though the numbers are impressive in themselves, the scientific depth of Dr. Scally’s attack, in particular, Mr. Bradt’s advocacy in discrediting the expertise of the Board’s experts, completely undermines the entire credibility of the proceeding.

Procedurally, certain events in the case history bear noting: 1) Taylor Hooton committed suicide on July 15, 2003, with the story breaking big first in the Dallas, then in the national press; 2) The Board of Medical Examiners filed its Complaint against Dr. Scally less than two weeks later on July 28, 2003. [118] In the author’s opinion, the strong temporal connection between the two events suggests a highly political motivation for bringing the disciplinary proceeding, though the case was surely already under investigation weeks or months earlier; 3) after ten arduous days of testimony spanning February through April, 2004, the evidentiary hearing drew to a close, with final briefs and orders in the case filed in August and September, a proceeding whose scope dwarfs – by comparison – many major felony trials in the author’s home jurisdiction; 4) on November 29, 2004, Administrative Law Judge Catherine C. Egan issued an order, revoking Dr. Scally’s license to practice medicine, assessing him $190,000.00 in administrative penalties, and $12,809.50 in transcription costs; [119] 5) thereafter, Dr. Scally moved for rehearing of the matter, a curious procedural step unique to Texas, prior to petitioning for judicial review; [120] on appeal, somewhat unsurprisingly, the ALJ affirmed her decision, revoking Dr. Scally’s license to practice medicine on February 4, 2005; currently, Dr. Scally’s case is on appeal to the District Court for Travis County, Texas, the court of general jurisdiction in Texas, captioned Michael C. Scally, M.D., v. Texas State Board of Medical Examiners, (No. GN-501134, filed —–).

Conclusion

Dr. Scally’s professional decertification should not withstand appellate scrutiny. That statement, however, necessarily presumes a politically independent judiciary. As demonstrated, Texas has no politically independent judiciary. Further, because 1) Dr. Scally’s professional decertification serves an important political goal for the executive; 2) the executive in Texas is afforded broad executive privilege to act largely in secret to act on its political goals; 3) the judiciary in Texas has been loath to effectively check such action by acquiescent deference to the judgment of administrative agencies, which deferential standard is established in Texas law; 4) religion and government freely commingle in Texas; and 5) steroid policy is now fundamentally related to the religious underpinning of the evolution of American team sports out of Muscular Christianity, it is this author’s opinion that the situation is only likely to change with the dissemination – and publication – of the scientific data in the press. For instance, the HBO Real Sports, Keteyian report effectively silenced the steroid crusaders, if only for a moment.

Moreover, the Austin, Dallas and Houston press should not only put out the scientific “data;” rather, it should also shine a light on State Medical Board proceedings, to demand full public disclosure of “open records,” at a minimum, an important first step to ensure that physicians – like Dr. Scally – are not being targeted for professional reprisal premised on the lack of political support for their chosen area of practice. Such political targeting of physicians and medical care portends ominous social consequences: when the practice of medicine is politically – rather than scientifically – organized, moralistic restrictions on the delivery of care will invariably, but nonetheless selectively, target the already weak or physically compromised. Recently, this has been most obvious in the Bush Administration’s position on stem cell research.

Anabolic steroid legislative and enforcement policy, to date, has been an unmitigated failure, because it intentionally ignores scientific reality; and, until it comes to terms with scientific reality instead of focusing on quasi-religious issues of faith, it will continue to fail the test. It is the author’s opinion that had Taylor Hooton been Dr. Scally’s patient, it is quite likely he would still be with us today.

About the author

Philip Sweitzer

Appellate lawyer

Appellate lawyer - Anabolic steroids/criminal/gov’t. contracts/innocence