DOCTOR CAN STILL PRESCRIBE, IN PERSON

Deal with state halts Web sales of impotence drug; investigation continues

Madison -- The state Medical Examining Board cut a deal Wednesday that
allows a Wauwatosa physician to retain his medical license but bans him from
prescribing by telephone or using the Internet to solicit phone
subscriptions.

State officials also acknowledged that they did not act on information they
received in 1995 that David Michael Thomas, 36, had been court-martialed on
sex charges; and in another matter, had surrendered his medical license in
Arizona.

Also Wednesday, the director of consumer protection for the state said his
office would meet with the Federal Trade Commission to learn whether Thomas
violated federal deceptive advertising laws by advertising the impotence
drug Viagra on his Web site. Federal action could result in an injunction
against Thomas, said Jerry Hancock, director of consumer protection for the
Wisconsin Department of Justice.

The issue, Hancock said, involves Thomas' Vascular Center for Men
advertising Viagra as offering "more enjoyment" and better sexual
performance, when the drug actually is prescribed to treat impotence. "The
general laws of deceptive advertising would apply on the Internet in the
same way it does to any other medium," Hancock said.

Wednesday's agreement backed away from an initial petition to summarily
suspend Thomas' license for 30 days while the board investigates his
practices.

The move to halt Thomas' free-wheeling offers of Viagra prescriptions came
after the Journal Sentinel reported that he prescribed the drug at least 700
times in the past few weeks to people briefly screened by telephone. Most of
the calls came after Thomas set up a Web site that offered $50 consultations
that could lead to prescriptions, which cost extra. He charged a $25 fee for
consultations on refills.

On the Web site and in an interview, Thomas said his criteria to qualify for
the drug were for the caller to be male, at least 18, and not taking
nitroglycerin-type drugs. Business was so brisk, Thomas said, his medical
assistants were doing the telephone screenings.

Under Thomas' agreement with the Medical Examining Board, the investigation
of him and the way he prescribed the anti-impotence pills will continue, and
he pledged to cooperate. The probe could lead to a formal complaint of
unprofessional conduct against him, said Arthur Thexton, prosecuting
attorney for the Department of Regulation and Licensing.

Thomas "shall not prescribe any prescription drug or otherwise treat any
patient he has not physically examined and for whom he does not have a
patient health record," that conforms to state medical regulations, Thexton
told the board at a meeting Wednesday morning. Thomas' license would be
suspended immediately if he violates the conditions, according to Thexton.

Thexton said the agreement "meets the concern of immediate danger to the
public," while it permits Thomas "to practice freely pending our
investigation."

Thomas' attorney, Hal Harlowe, a former Dane County district attorney, told
the board that he concurred with Thexton on the agreement. "I think it is an
appropriate interim resolution of what will be a complex case."

What was not addressed in the agreement was why the state Department of
Regulation and Licensing had not taken action concerning Thomas sooner.

Thomas surrendered his license to practice medicine in Arizona in 1993,
while under investigation there. He also was court-martialed by the Army in
1994, after serving in Somalia, on charges that included coercion not to
report sodomy. He was found not guilty of of allegations that the alleged
victim was under 16. After his conviction, Thomas spent more than a year in
a military prison.

It was learned Wednesday that the Division of Enforcement of the Department
of Regulation and Licensing has known of Thomas' court-martial and Arizona
license surrender since late 1995, but has not completed its investigation
of those matters.

Steven M. Gloe, a division attorney, said his team did not get Thomas' case
until 1997, and could not explain the delay. Since then, investigators have
worked with the military to get witnesses the attorneys could interview
regarding the incident in Somalia.

Asked why the conviction and sentence were not proof enough of criminality,
Gloe said: "Homosexual activity by itself is not a basis for taking action
against a doctor's license, nor should it be. We are more concerned with the
underlying allegations. The law requires us to take action on a conviction
where the facts and circumstances must be substantially related to the
practice of medicine."

As for the Arizona situation, Gloe said that until recently, the Medical
Examining Board did not consider an adverse action by another licensing
board enough to provoke a complaint. Also, the surrender of Thomas' license
occurred without any findings.

But Gloe said investigations continue here on those matters.

Deanna Zychowski, administrative assistant with the Bureau of Health
Professions for the Department of Regulation and Licensing, said the
department does not use material from the National Practitioner Data Base.
The database, a registry of disciplinary actions against all licensed
physicians, is too expensive, she said.

It costs $15 to check on a physician; and with 12,000 physicians statewide,
an annual check would cost too much, she said.

When a physician wants to apply for a medical license in Wisconsin for the
first time, the Medical Examining Board does want to know what the data bank
may have on that doctor. But to save the $15 fee, it requires the applicant
to contact the database, pay the fee, and have the report sent in a sealed
envelope to the department.

Harlowe, Thomas' attorney, said the case raises issues of access to new
medications, especially for individuals who do not have medical insurance or
normal access to medical care. He said he expected a formal complaint to be
lodged against Thomas, even though the issue of prescriptions issued by
phone was not clear cut.

Joe Manning and Mary Zahn of the Journal Sentinel staff contributed to this
report.