HERRERA COULD BE REINSTATED NEXT WEEK

MONTGOMERY - Gadsden physician Pascual Herrera Jr. could get his medical
license back as soon as next week, according to a lawyer for the state
Medical Licensure Commission that revoked his license three years ago.

Medical Licensure Commission attorney Wayne Turner said Tuesday that
the commission may have no choice but to reinstate Herrera's license
that was revoked in 2001 during the OxyContin scare in Gadsden, a
situation a state senator said he "probably" reacted to politically.

The commission meets June 23 in Montgomery.

Montgomery County Circuit Judge Johnny Hardwick on Monday ordered
Herrera's license reinstated immediately.

Turner said the commission's options include asking Hardwick to reconsider.

"If he doesn't do a stay he'll get it back for certain," Turner said of the
license.

Turner said he disagreed with Hardwick's ruling that overturned the
Medical Licensure Commission's decision to revoke Herrera's license
for failing to perform adequate physicals and documentation on several
patients.

Turner said Hardwick had no authority to substitute his judgment for
the Medical Licensure Commission's judgment. But Hardwick in his
ruling stressed that there was no substantial evidence presented to
the commission to back up the license revocation.

Herrera and his lawyer, Al Agricola, and a private doctors' group
charged that the commission revoked

Herrera's license during the OxyContin "hysteria" in Gadsden.

The physicians' group, the American Association of Physicians and
Surgeons, in a friend of the court brief in 2003, claimed that after
three young adults from "prominent families" in Gadsden died of
OxyContin overdoses, "the ensuing media furor pressured the Alabama
Board of Medical Examiners to do something about drug diversion."

"The Board found its scapegoat in Pascual Herrera, Jr., M.D., a
graduate of a foreign medical school," the brief said, adding that
television stations interviewed people who said they hoped Herrera
would go to prison.

Turner said Herrera's Spanish heritage had nothing to do with the
civil procedure that led to his license revocation as Herrera charged.
"That's pure hogwash," he said.

No evidence was presented to the commission that Herrera prescribed
OxyContin to any of the three dead youths, who were not named.

Hardwick said he expected, when presented with allegations that
Herrera prescribed powerful pain killers to patients, that he would
read traditional criminal evidence about selling drugs for profit.

Instead, Hardwick said, what he read was an academic debate by two
experts, "one imminently more qualified than the other," whether it
was appropriate for Herrera to prescribe controlled substances to
three established patients he had been treating for years when neither
of the two experts had examined them.

Hardwick said the licensure commission chose to believe the board's
expert even though his credentials and qualifications in the area of
pain management were inferior to those of Herrera's expert who
testified by deposition.

State Sen. Larry Means, D-Attalla, sponsored legislation to create a
controlled substance data base to prevent patients from doctor
shopping and getting powerful pain killers like OxyContin they either
take themselves or sell to others.

Means said he was disappointed in Hardwick's ruling.

"People lost their lives because of this (OxyContin) situation," Means
said, adding that he "probably" had something to do with pushing
officials to do something about the OxyContin scare after the three
youths died of overdoses.

The State Board of Medical Examiners, which investigates and
prosecutes doctor's cases, is headed by state Sen. Larry Dixon,
R-Montgomery. The friend of the court brief quoted Dixon as saying
that the board would "get" someone for the pushing of drugs.

Means added that he was not charging Herrera with illegally
prescribing pain killers but added, "There was some reason he lost his
license."