10th Circuit denies petition from Brigham City doctor to have registration reinstated

Published: Saturday, Dec. 24 2011 3:16 p.m. MST

Dr. Dewey MacKay enters federal court in Salt Lake City on Wednesday, July 20, 2011. He is on trial facing 85 counts of illegally prescribing painkillers.

Kerry Jensen, Kerry Jensen, Deseret News

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SALT LAKE CITY — Just days after Brigham City doctor Dewey MacKay was sentenced to 20 years in prison by a federal judge, an appeals court upheld the revocation of the man's registration to dispense controlled substances.

In a ruling issued Friday, the 10th Circuit Court of Appeals upheld the decision the Drug Enforcement Administration made to pull MacKay's registration in 2009.

The DEA asked for a revocation on the grounds that the 64-year-old orthopedic surgeon with 30-plus years of experience "issued numerous purported prescriptions for controlled substances without a legitimate medical purpose and outside the usual course of professional practice," according to the ruling.

MacKay asked for and was given a restraining order that halted the revocation from the U.S. District Court, who turned the matter over to an administrative law judge. Following a hearing, the judge sided with the DEA. A deputy administrator, in turn, agreed with the judge's findings.

"She held that Dr. MacKay’s 'egregious misconduct,' coupled with his failure to acknowledge wrongdoing or show remorse, warranted revoking his registration and denying any pending requests to renew or modify the registration," the ruling states.

MacKay turned to the 10th Circuit Court of Appeals, asking for a reversal of the decision and that his registration be reinstated. The court denied his petition, noting a lack of accountability that was also noted at MacKay's sentencing hearing.

"Dr. MacKay has never admitted any fault or taken responsibility for his misconduct," the ruling states. "Nor can he point to any evidence that he reformed his habits. Instead, he continued to illegitimately dispense controlled substances, even when he knew the DEA was investigating him. The deputy administrator's revocation of Dr. MacKay's registration is consistent with the DEA's policy and practice of revoking registration under such circumstances."

The doctor wrote 20,612 prescriptions for hydrocodone products from January 2005 to October 2009, totaling more than 1.9 million pills. He had the highest volume of prescriptions for hydrocodone in the state five years in a row.

MacKay was convicted in August of 37 counts of illegally dispensing painkillers, including two that resulted in the death of 55-year-old David Wirick; and three counts of using a communication device in a drug trafficking offense. The jury acquitted him of 44 other counts.

U.S. District Judge Dee Benson sentenced the doctor to 20 years in prison, a minimum sentence mandated by federal law, on Monday. At that hearing, MacKay said he looked forward to the day God would vindicate him.

E-mail: emorgan@desnews.com Twitter: DNewsCrimeTeam

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