IN RE RICHARD PAUL PAYEA MD (Concurring Opinion)

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STATE OF MICHIGAN COURT OF APPEALS In re RICHARD PAUL PAYEA, M.D. DEPARTMENT OF COMMUNITY HEALTH, BUREAU OF HEALTH PROFESSIONS, UNPUBLISHED September 29, 2011 Petitioner-Appellee, v No. 293727 Board of Medicine LC No. 2006-000250 RICHARD PAUL PAYEA, M.D., Respondent-Appellant. Before: SHAPIRO, P.J., and WILDER and MURRAY, JJ. SHAPIRO, P.J. (concurring in part, dissenting in part). I concur in the majority s conclusion that the record established violations of MCL 333.16221(a) (negligence) and (b)(i) (incompetence) by the respondent. However, I do not believe the record contains substantial evidence upon which to conclude that respondent violated MCL 333.161221(b)(vi) (lack of moral character) or (c)(iv) (prescription of controlled substances for other than a lawful diagnostic or therapeutic purpose). While the respondent s negligence involved prescription of controlled substances on the basis of inadequate medical investigation and dubious judgment, the record does not demonstrate that the respondent provided these prescriptions for a pecuniary motive or without having defined, albeit negligently, lawful reasons for which the drugs could be prescribed. I would therefore remand the matter to the petitioner to determine sanctions based upon the negligence and incompetence violations. /s/ Douglas B. Shapiro -1-

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