Judge rejects $9M claim of former Martinsburg physician

MARTINSBURG – A federal judge has dismissed the lawsuit of a Martinsburg physician who had his license revoked and sued the West Virginia Board of Medicine for $9 million.

U.S. District Judge Gina Groh, of the Northern District of West Virginia, on May 15 granted a motion to dismiss filed by WVBOM, concluding Louis J. Del Giorno’s constitutional rights were not violated when his license was revoked in June 2010.

Del Giorno allegedly ignored evidence that the patients to whom he was prescribing medication were drug addicts. WVBOM’s order said his prescribing practices were “horrifying.”

“Despite the fact that the plaintiff’s failure to exhaust administrative remedies does not bar his claim, his complaint is nevertheless facially deficient… inasmuch as it fails to state a claim upon which relief may be granted,” Groh wrote.

Allegations against Del Giorno included:

-Prescribing controlled substances to a 30-year-old patient who admitted to snorting cocaine the week before and taking her father’s Oxycontin the day before;

-Prescribing controlled substances to patients who had evidence of addiction;

-Failing to check hospital records where a number of his patients to whom he was prescribing controlled substances were being treated for overdoses;

-Rarely doing base line urine screens for patients treated for chronic pain;

-Prescribing controlled substances while ignoring ‘red flags’ that suggested intravenous drug use; and

-Noting that a patient is doing well on more medication, then six days later noting that the patient committed suicide.

In its order, the board said it did not have the power to permanently prohibit Del Giorno from prescribing controlled substances without revoking his license.

Del Giorno alleged that a hearing examiner had ruled he should be suspended for a probationary period and that he not write any more prescriptions. When WVBOM overruled its own hearing examiner, it violated the Supremacy Clause of the U.S. Constitution, he alleged.

“(T)here is nothing unconstitutional about a state administrative tribunal, acting within the scope of its discretion, fashioning a disciplinary action which also contemplates the effect of applicable federal statutes with regard to the person being disciplined,” Groh wrote.

Del Giorno also alleged his write to equal protection under the Fourteenth Amendment was violated because the 26 area physicians he named in a complaint were not subject to disciplinary action. He said those physicians treated patients he had discharged from his practice over suspected drug use.

“(T)he plaintiff does not allege that he was discriminated against because of his occupation. In fact, the plaintiff does not allege that he was discriminated against because of his membership in any class whatsoever,” Groh wrote.

“The plaintiff does not allege that the WVBOM drew any sort of categorical distinction between himself and other physicians. The plaintiff merely alleges that he was disciplined by the WVBOM, while other physicians whom the plaintiff alleges were engaging in the same practices for which the plaintiff had his license revoked were not disciplined.

“Suffice it to say that such allegations do not amount to an equal protection violation, and the plaintiff therefore fails to state a claim upon which relief may be granted.”

Groh also rejected claims of violations of the Double Jeopardy Clause, due process rights, rules of evidence and the Confrontation Clause. Del Giorno sought $3 million in compensatory damages and $6 million in punitive damages.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.