In re: ) ) NOTICE OF CHARGES John E. Marshall, M.D., ) AND ALLEGATIONS; ) NOTICE OF HEARING Respondent. )
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1 BEFORE THE NORTH CAROLINA MEDICAL BOARD In re: ) ) NOTICE OF CHARGES John E. Marshall, M.D., ) AND ALLEGATIONS; ) NOTICE OF HEARING Respondent. ) The North Carolina Medical Board ( Board ) has preferred and does hereby prefer the following charges and allegations: 1. The Board is a body duly organized under the laws of North Carolina and is the proper party to bring this proceeding under the authority granted it in Article 1 of Chapter 90 of the North Carolina General Statutes. 2. Respondent, John E. Marshall, M.D. ( Dr. Marshall ), is a physician licensed to practice medicine by the Board on or about September 29, 1990, license number During the times relevant herein, Dr. Marshall was engaged in the practice of obstetrics and gynecology and pain medicine in Lincolnton, North Carolina. FIRST CLAIM 4. Paragraphs one through three are re-alleged and incorporated herein by reference. 5. In September 2009, a complaint was filed with the Board by an administrator at Davie County Hospital which staffed a local urgent care clinic. The complaint filed by the Notice of Charges John E. Marshall, M.D. Page 1 of 10
2 administrator indicated that she had received a written complaint from a nurse on staff that on September 12, 2009, Dr. John Marshall had: (1) made inappropriate comments to her in front of a patient; (2) touched and rubbed her stomach with his hands; (3) had walked up behind her and had rubbed himself against her; and (4) had followed her from room to room asking her personal questions. The administrator reported that, after learning of the complaint, she had Dr. Marshall permanently removed from the urgent care clinic s schedule. 6. In an interview with a Board investigator, the nurse referenced above reported that September 12, 2009, was her first day working at the urgent care clinic. The nurse also reported that there were four separate instances in which Dr. Marshall had acted inappropriately. In one of those instances, the nurse indicated that she was leaning up against the counter when Dr. Marshall came up behind her. He put his hands on her and held her close to him for 7 to 10 seconds. 7. Dr. Marshall s conduct, as described above, constitutes unprofessional conduct, including, but not limited to, the failure to conform to, the standards of acceptable and prevailing medical practice, or the ethics of the medical profession, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, Notice of Charges John E. Marshall, M.D. Page 2 of 10
3 justice, or good morals within the meaning of N.C. Gen. Stat (a)(6), which is grounds for the Board to annul, suspend, revoke, condition, or limit Dr. Marshall s license to practice medicine and surgery issued by the Board. SECOND CLAIM 8. Paragraphs one through seven are re-alleged and incorporated herein by reference. 9. In October 2009, law enforcement officials in Buncombe County filed a complaint with the NC Medical Board alleging that Dr. Marshall, whom they knew to be an an OB/GYN, was prescribing pain medication to a male patient who lives in Fletcher, North Carolina, a two-hour drive from the practice ( Patient A ). At that time, Patient A s wife was under investigation by Buncombe County law enforcement for having large amounts of pharmaceuticals prescribed to her over the internet and having the prescriptions filled in Buncombe County. 10. During an interview with a Board investigator, Dr. Marshall acknowledged that he had been contacted by E-ClinicMD, a firm from Florida, to see Patient A on July 9, Patient A s wife was also present. 11. Dr. Marshall told the Board s investigator that he had entered into an agreement to have patients referred from E- ClinicMD to his practice. The agreement consisted of E-ClinicMD Notice of Charges John E. Marshall, M.D. Page 3 of 10
4 doing all billing of the patient and them paying him a fixed rate to see the patient. 12. Dr. Marshall indicated that he was paid $ for seeing Patient A by E-ClinicMD. He does not know what E-ClinicMD charged Patient A. Dr. Marshall reported that he may have seen five (5) or six (6) patients referred to him from E-ClinicMD. that: 13. N.C. Gen. Stat provides in pertinent part A health care provider shall not financially compensate in any manner a person, firm, or corporation for recommending or securing the health care provider's employment by a patient, or as a reward for having made a recommendation resulting in the health care provider's employment by a patient. 14. Dr. Marshall relationship constitutes unlawful compensation to E-ClinicMD for the referral of patients to him. 15. Dr. Marshall s unlawful compensation to E-ClinicMD, as described above, constitutes the violation of a law involving the practice of medicine within the meaning of N.C. Gen. Stat (a)(7), which is grounds for the Board to annul, suspend, revoke, condition, or limit Dr. Marshall s license to practice medicine and surgery issued by the Board. THIRD CLAIM 16. Paragraphs one through fifteen are re-alleged and incorporated herein by reference. 17. During its investigation of Dr. Marshall s prescribing Notice of Charges John E. Marshall, M.D. Page 4 of 10
5 habits, the Board learned that Dr. Marshall had been prescribing Lorazepam, a schedule IV drug under the Controlled Substances Act, to his immediate family members. 18. When the Board ordered Dr. Marshall to produce the medical records for the relatives to whom he prescribed Lorazepam, Dr. Marshall admitted that he did not have any medical records those persons. 19. Dr. Marshall s prescribing of controlled substances to his immediate family members, as described above, constitutes unprofessional conduct, including, but not limited to, the failure to conform to, the standards of acceptable and prevailing medical practice, or the ethics of the medical profession, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, justice, or good morals within the meaning of N.C. Gen. Stat (a)(6), which is grounds for the Board to annul, suspend, revoke, condition, or limit Dr. Marshall s license to practice medicine and surgery issued by the Board. FOURTH CLAIM 20. Paragraphs one through nineteen are re-alleged and incorporated herein by reference. 21. As a result of its concerns regarding Dr. Marshall s prescribing habits, the Board ordered Dr. Marshall to produce Notice of Charges John E. Marshall, M.D. Page 5 of 10
6 the medical records of four of his patients, including Patient A and three other patients (hereinafter referred to as Patient B through D). After receiving the records of Patients A through D, the Board submitted the records for outside expert review. 22. In his review, the outside expert identified the following areas in which Dr. Marshall s care of Patients A through D failed to conform to the standards of acceptable and prevailing medical practice. a. With regards to Patient A, the diagnosis by Dr. Marshall failed to conform to the standards of acceptable and prevailing medical practice because it appears that Dr. Marshall did not examine Patient A. In addition, there was no documented discussion of the possible side effects or risks of addiction of the new medication that Dr. Marshall prescribed Patient A, and there was no documentation of any pain contract with the patient to prevent the patient from obtaining pain medications from other physicians. b. With regards to Patient B, Dr. Marshall, with the exception of the initial visit, failed to document any physical exam including visits at which Patient B was experiencing CVA tenderness and dysuria. In addition, there was not sufficient documentation pertaining to his prescribing of methadone and Percocet including dose Notice of Charges John E. Marshall, M.D. Page 6 of 10
7 changes and the addictive properties of Percocet. Dr. Marshall also failed to have Patient B sign a pain contract that would have prevented the patient from obtaining pain medications with her urologist during Dr. Marshall's care. c. With regards to Patient C, Dr. Marshall failed to properly document any physical exam or discussion about the importance of compliance with his blood pressure medications. Regarding Patient C s pain management, Dr. Marshall failed to adequately discuss the addictive and potentially harmful properties of the pain medications and did not require Patient C to enter into a pain contract. d. With regards to Patient D, Dr. Marshall failed to document any physical examination of Patient D. In two instances where Patient D presented acutely with chest pain and suprapubic pain, there was not only no examination, but Dr. Marshall also failed to assess or make any differential diagnosis for these potentially dangerous conditions. For Patient D's chest pain, an EKG was done at another facility but there was no documentation of whether Patient D was assessed at this facility urgently. 23. Dr. Marshall s care of Patients A through D, as described above, constitutes unprofessional conduct, including, but not limited to, failure to conform to, the standards of Notice of Charges John E. Marshall, M.D. Page 7 of 10
8 acceptable and prevailing medical practice, or the ethics of the medical profession, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, justice, or good morals within the meaning of N.C. Gen. Stat (a)(6), which is grounds for the Board to annul, suspend, revoke, condition, or limit Dr. Marshall s license to practice medicine and surgery issued by the Board. NOTICE TO DR. MARSHALL Pursuant to N.C. Gen. Stat , it is hereby ordered that a hearing on the foregoing Notice of Charges and Allegations will be held before the Board, or a panel thereof, at 8:00 a.m., Thursday, February 17, 2011, or as soon thereafter as the Board or panel thereof may hear it, at the offices of the Board at 1203 Front Street, Raleigh, North Carolina, to continue until completed. The hearing will be held pursuant to N.C. Gen. Stat. 150B-40, 41, and 42, and N.C. Gen. Stat , 14.4, 14.5, and You may appear personally and through counsel, may cross-examine witnesses and present evidence in your own behalf. You may, if you desire, file written answers to the charges and complaints preferred against you within 30 days after the service of this notice. Notice of Charges John E. Marshall, M.D. Page 8 of 10
9 The identities of Patients A through D are being withheld from public disclosure pursuant to N.C. Gen. Stat However, this information will be provided to you upon your request. Pursuant to N.C. Gen. Stat. 150B-40(c)(5), it is further ordered that the parties shall arrange a pre-hearing conference at which they shall prepare and sign a stipulation on prehearing conference. The pre-hearing stipulation shall be submitted to the undersigned no later than seven days prior to the hearing date. The right to be present during the hearing of this case, including any such right conferred or implied by N.C. Gen. Stat. 150B-40(d), shall be deemed waived by a party or his counsel by voluntary absence from the Board s office at a time when it is known that proceedings, including deliberations, are being conducted, or are about to be conducted. In such event, the proceedings, including additional proceedings after the Board has retired to deliberate, may go forward without waiting for the arrival or return of counsel or a party. Notice of Charges John E. Marshall, M.D. Page 9 of 10
10 This the 1 st day of November, NORTH CAROLINA MEDICAL BOARD By: Janice E. Huff, M.D. President Notice of Charges John E. Marshall, M.D. Page 10 of 10
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