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PENNSYLVANIA MEDICAL SOCIETY v. COMMONWEALTH PENNSYLVANIA (08/18/88)

decided: August 18, 1988.

PENNSYLVANIA MEDICAL SOCIETY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF MEDICINE, RESPONDENT. PENNSYLVANIA OSTEOPATHIC MEDICAL ASSOCIATION, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF OSTEOPATHIC MEDICINE, RESPONDENT



Original Jurisdiction in the case of Pennsylvania Medical Society v. Commonwealth of Pennsylvania, State Board of Medicine, and in the case of Pennsylvania Osteopathic Medical Association v. Commonwealth of Pennsylvania, State Board of Osteopathic Medicine.

COUNSEL

Robert B. Hoffman, Reed, Smith, Shaw & McClay, for petitioner, Pennsylvania Medical Society.

Roger F. Cox, with him, Lawrence J. Beaser, Blank, Rome, Comisky & McCauley, for petitioner, Pennsylvania Osteopathic Medical Association.

Gwendolyn T. Mosley, Deputy Attorney General, with her, Andrew S. Gordon, Chief Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Litigation Section, Alexandria J. Matthews, Counsel, and LeRoy S. Zimmerman, Attorney General, for respondents.

Richard B. Wickersham, Jr., with him, Michael C. Hemsley, Griffith & Burr, P.C., for amicus curiae, Pennsylvania Psychiatric Society.

Judge MacPhail, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 118 Pa. Commw. Page 637]

Petitioners, Pennsylvania Medical Society and Pennsylvania Osteopathic Medical Association, have filed motions for summary judgment with regard to petitions for review requesting injunctive and declaratory relief filed against the State Board of Medicine and the State Board of Osteopathic Medicine (Boards).*fn1

The Boards in January of 1987 adopted regulations governing the use of amphetamine and amphetamine-like drugs known as "sympathomimetic amines" (amines). The regulations*fn2 cover three distinct areas: weight control limitations, a waiver procedure, and record access and reporting requirements. Petitioners have limited their challenges in this proceeding to the waiver procedures.

It is provided in 49 Pa. Code § 16.96(c), (e) and (f) and in 49 Pa. Code § 25.211(c), (e) and (f) that medical and osteopathic physicians may not treat patients with the amines in an unrestricted manner unless the affliction is one described in subsection (c)(1)-(5). In all other circumstances, the physician may not prescribe the

[ 118 Pa. Commw. Page 638]

    amines for more than 45 days in any twelve-month period without a waiver from the respective Board.

Pa. R.C.P. No. 1035(b) provides that we may enter summary judgment where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In the instant case, the Boards do not contend that there is any genuine issue of material fact. The oral arguments, briefs of the litigants and the brief of amicus curiae*fn3 focus on whether Petitioners are entitled to judgment as a matter of law. We believe they are.

Petitioners contend that only The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 -- 780-144, governs the prescribing, administering and dispensing of controlled substances. Petitioners aver as well that the waiver process provisions set forth in the regulations promulgated pursuant to the Osteopathic Medical Practice Act (Osteopathic Practice Act), Act of October 5, 1978, P.L. 1109, as amended, 63 P.S. §§ 271.1 -- 271.18 and the Medical Practice Act of 1985 (Medical Practice Act), Act of December 20, 1985, P.L. 457, as amended, 63 P.S. §§ 422.1 -- 422.45, unlawfully vest in the Boards' authority to review patient-specific decisions made by physicians; that the ...


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