Nearly a year after the Arkansas Medical Board revoked and suspended her license and fined her for over-prescribing Schedule II narcotic drugs and violating consent agreements, Oldenberg is still fighting the board's decisions.
On Thursday, Aug. 18, attorney Larry Kissee made a final attempt to convince Sharp County Circuit Judge Kevin King that, as Oldenberg claims, the medical board repeatedly violated Oldenberg's rights and its own rules, as it took disciplinary action against her.
Kissee told Judge King the board wrongly claimed Oldenberg had "six prior convictions" for license violations.
"The claim of "six prior convictions" was used by the board to make decisions about her penalties when, in fact, Dr. Oldenberg has been accused six times," said Kissee,
Kissee went on to explain two board actions to discipline her had been overturned in the court system, while other cases had been dropped or settled by consent agreements.
Kissee said Oldenberg had complied with a 2008 agreement to supply the board monthly records showing what drugs were prescribed to patients and in what amount.
According to Kissee, Oldenberg was suddenly given an Emergency Order of Suspension in May of 2010 for over-prescribing and failing to provide the records of several patients.
"For a year and a half, they had her records and not one time told her she was doing wrong."
Kissee also emphasized that, while Oldenberg was charged with over-prescribing narcotics to patients, the medical board has never set guidelines to guide physicians.
"If she's not told how much is too much, how is she to know?" Kissee asked.
Kissee also repeatedly pointed to the Arkansas Chronic Pain Act, which states that doctors, like Oldenberg, who specialize in pain management, are allowed to prescribe narcotics at high dosages for long periods of time to help patients with "intractable pain."
As Kissee made his arguments, the courtroom was filled with more than 30 of Oldenberg's former patients.
Kissee mentioned that a large number of patients traveled to Little Rock on Sept. 8 and 9, 2010, to support Oldenberg during her medical board hearing.
Kissee claimed a physician who served as a medical board witness was not qualified to be an expert witness.
While the physician testified that Oldenberg had "prescribed too much for too long" and was guilty of gross negligence, Kissee told the judge, "Not one of these patients were called as a witness...There has been no complaint from any of those patients that they have been hurt, damaged in any way."
Kissee also attacked the medical board for issuing the Emergency Order of Suspension against Oldenberg when there was no emergency. Kissee said patients were not being harmed and there was no danger to the public.
Kissee did admit that, after Oldenberg was allowed to resume her practice until her hearing, she violated her agreement not to prescribe Schedule II drugs, writing prescriptions for a patient who had traveled from Louisiana for medication.
Kissee said issuing the prescriptions was "not medically unsound" and punishment for violating the Consent Agreement should be reasonable, not a "life sentence," where her license is permanently revoked.
Kissee added the medical board again violated its own rules, when it issued a second Order of Suspension and scheduled a hearing eight days later, when 30 days notice is required, to give an accused doctor time to prepare a response to an allegation.
"We feel that the medical board has taken a harsh action against Dr. Oldenberg," said Kissee. "We're asking you to reverse or modify the order that was entered by the board in this matter."
Medical Board Attorney William Trice was brief and to the point as he spoke to the judge.
"We had expert testimony (at Dr. Oldenberg's hearing)," said Trice. "Oldenberg had only one witness, Dr. Meyer, who had not read one (patient) case."
Trice explained none of Dr. Oldenberg's patients were called, because they are not experts and patients seldom have any input on what drugs they should be prescribed or how long they should take them.
Trice showed no sympathy for the penalties Oldenberg received.
"When you enter into an agreement with the board and violate it, should she be surprised she is sanctioned?" Trice asked the judge. "Her license was revoked for violating her agreement with the board."
Trice went on to say license suspensions and fines were given for other violations, "all within the powers of the board."
"There is no evidence the board treated her (Oldenberg) more harshly than anyone else (facing similar complaints)," Trice told the judge.
"We will request the decision of the board be affirmed," Trice concluded.
Judge King asked several questions of the attorneys after the arguments were completed.
During questioning, Trice admitted a board rule requires a 30 day notice period before a hearing is conducted into alleged violations.
While Oldenberg was not given 30 days for her second alleged violation, Trice said, "She came into the board, requested no continuance and acknowledged the conduct (prescribing narcotic drugs after agreeing not to)."
When the judge inquired as to whether Oldenberg's license has been permanently suspended, Trice replied, "No, sir."
According to Trice, "It (the revocation) does not prevent Dr. Oldenberg from coming back and reapplying (for a license)."
After the hearing, Oldenberg said that, in court, Trice "misrepresented things that happened at the medical board," including the fact the board asked Trice what it could do to stop her from ever practicing in the state again.
Kissee said he was optimistic the judge will restore Oldenberg's right to practice.
Kissee pointed out Judge King has allowed Oldenberg to continue seeing patients while the appeal is pending, as long as she does not prescribe narcotic drugs.
"The DEA license may be the issue," said Kissee.
Oldenberg says she currently sees patients for ailments like diabetes and high blood pressure and her office is open just one day a week.
|Without the ability to prescribe narcotic drugs, Oldenberg said there is little she can do for her pain management patients||and many of them have a poor quality of life, living without adequate medications to control their pain or traveling long distances to be seen by other pain management physicians.|
Judge King took the appeal issues under advisement. He did not indicate how long he expects it will take to make a ruling.