Six months after the Arkansas State Medical Board reprimanded and fined Oldenberg and suspended and revoked her license to practice medicine, Kissee has filed his court plea to reverse the action he calls a "death penalty" against his client.
Kissee, who appealed the Medical Board penalties to Sharp Circuit Court on Oct. 27, 2010, has filed a 56 page brief accusing the Medical Board of committing twelve errors as it took disciplinary action against Oldenberg.
Medical Board Attorney Michael Trice has responded with a 24 page brief defending the Board's actions.
The written briefs will be a guide as Circuit Judge Kevin King considers the arguments and case law cited, and makes a ruling in Oldenberg's case.
Dr. Denise Oldenberg, who specializes pain management, has had offices in Salem, Horseshoe Bend, and, most recently, Cherokee Village over the past 22 years.
Her approach of prescribing high amounts of narcotic drugs to patients with chronic pain has led to state scrutiny many times over the years.
On Sept. 8, 2010, Oldenberg appeared before the Medical Board in Little Rock, representing herself without an attorney. She was charged with violating agreements with the Board to submit reports showing all Schedule II narcotic drugs she prescribed to patients and prescribing Schedule II drugs, after agreeing not to, while charges against her were pending.
While an Oct. 9 Board decision permanently revoked her medical license, Judge King ruled on Nov. 18 that, while her court appeal was pending, Oldenberg could continue to practice, as long as she did not prescribe Schedule II narcotics.
In his brief, Kissee begins by telling the court it, "may reverse or modify the Board's decision if the substantial rights of the petitioner have been prejudiced..."
Kissee goes on to compare Oldenberg's Medical Board hearing to the trial of the Knave of Hearts in Alice in Wonderland.
The brief describes how The White Rabbit reads a poem which claims the Knave of Hearts stole some tarts made by the Queen.
The King, who serves as judge, calls for a jury, made up of animals and birds, to make a verdict.
While the White Rabbit says, "Not yet, not yet!" and a witness is called, the Queen finds the Knave guilty.
Kissee writes, "What's the difference between this 1860's trial in Lewis Carroll's novel and the Arkansas State Medical Board Hearing of the charges against Denise Oldenberg, M.D., October, 2010? The Board Members (Judges and Jurors) were not impartial and their decisions were driven by- what? Abuse of power is still common."
Kissee goes on to list what he alleges are critical Board errors:
*The Board allowed its attorney, Trice, to serve as prosecutor and their advisor, a violation of due process.
*The Board failed to submit allegations of "improper prescribing" to the Pain Management Review Committee, for guidance, as required by law.
*The Board found Oldenberg guilty of "over-prescribing," even though the board has failed to set standards to describe and define "over-prescribing."
*The Board's "expert witnesses," who testified against Oldenberg, were not specialists or experts in their fields.
*The Board took emergency action against Oldenberg when no emergency existed.
*The Board falsely claimed it had levied six prior convictions against Oldenberg, when a court dismissed one conviction and all others were dropped or not sustained.
*The Board found Oldenberg guilty of "gross negligence" without providing "substantial" evidence she was guilty of inadequate patient monitoring and record keeping.
*The Board's deliberations were "biased" and "outrageous" and "showed medical ignorance."
As an example of the Board's alleged "abuse of power," Kissee notes the Board recorded the hearing in which witnesses testified against Oldenberg, but did not record its own deliberations, during which severe penalties were levied.
Kissee insists revoking Oldenberg's license because "She violated (allegedly) the consent order with one established patient prescribing two Schedule II controlled substances" was much too severe a penalty.
"The Board revoked her (Oldenberg's) license for a simple violation of a consent order. Her practice is almost destroyed. Her life as a doctor destroyed after 22 years of practice unless she receives this relief. There is nothing to justify such harsh, drastic action," Kissee writes.
Medical Board Attorney William Trice's brief seems to skoff at Kissee's laundry list of complaints.
Trice explains the Board has the legal right "to discipline or sanction licensees (physicians), who have violated the Medical Practices Act or the Rules and Regulations of the Board."
According to Trice, the Board held a disciplinary hearing into "various offenses" against Oldenberg and it "entered different sanctions with different levels of severity, depending on which violation the Board found Dr. Oldenberg committed."
Trice states the Board acted within its powers as a state agency and claims Kissee makes no claim in his appeal "that the sanctions imposed were beyond the statutory authority granted to the Board."
Trice states that expert witnesses who testified against Oldenberg based their testimony on their expertise, after reviewing patient records and prescribing records.
He notes that "Dr. Oldenberg's witness, Dr. Ronald Meyers, testified that he had not even reviewed the patient records."
Trice indicates that, while the appeal raises many issues, the primary issue before the court is "whether the Board made incorrect findings of fact in the disciplinary hearing itself, and were the sanctions imposed within the Board's authority."
Trice claims the Board's actions were taken after "a vast amount of Exhibits to include medical records and prescriptions and expert testimony that was given and the Administrative Procedure Action was complied with."
The discipline, according to Trice, was also based on, "The Board's history with Denise Oldenberg, M.D. and the numberous consent orders the Board has entered into with her, where the Board has tried to rehabilitate her and provide her education..."
Trice disputes the claim that revoking Oldenberg's license "was too severe."
"Due to the volume of evidence it was not too severe in the opinion of the Board. Dr. Oldenberg tends to not mention, that out of the various negative findings against her by the Board, it only revoked her license for violating two Consent Orders she had entered into with the Board."
Is Oldenberg trapped in an Alice in Wonderland bad dream, as Kissee's brief claims?
Trice responds, "The Brief of Dr. Oldenberg MD, pages 3, 4, 5, argues by some sort of analogy the Lewis Carroll's "Alice in Wonderland." Said argument is as interesting and bizarre as Lewis Carroll's work."
With briefs filed, the next step in this appeal will be a hearing to allow attorneys to present oral arguments to Judge King. The hearing date has not been set.
"It is all in a judge's hands and I feel very good about the future," Denise Oldenberg told Areawide News. "My brief proves the Medical Board did not follow its own rules and the punishment it handed out was much too severe for minor violations of a Consent Order."
While Oldenberg was given the right to practice medicine during her appeal, her office is open only one or two days a week to serve long time patients.
"Since I cannot prescribe pain medications, I have tried to help my patients find other doctors who can really help them," Oldenberg said. "About all I can do for my patients is treat their diabetes, high blood pressure or things like that."
The hearing date for oral arguments has not been set.