Opinion
NO. 2017-CA-000734-MR
01-17-2020
PHILIP L. ROBERTS, M.D. APPELLANT v. KENTUCKY BOARD OF MEDICAL LICENSURE APPELLEE
BRIEF FOR APPELLANT: J. Fox DeMoisey Louisville, Kentucky BRIEF FOR APPELLEE: Leanne K. Diakov Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 15-CI-001907 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND L. THOMPSON, JUDGES. KRAMER, JUDGE: Philip L. Roberts, M.D., appeals the order of the Jefferson Circuit Court denying his motion to vacate the final order of the Kentucky Board of Medical Licensure ("KBML") which imposed indefinite restrictions upon Roberts' license to practice medicine. Upon careful review, we affirm.
Given that this is a 2017 appeal, some explanation is in order regarding why it was assigned to a January 2020 merits panel and a warning regarding Roberts' counsel's excessive motions for enlargement of time. Roberts filed a timely notice of appeal on April 27, 2017. However, on May 19, 2017, he filed a motion to hold this appeal in abeyance pending finality of Strauss v. Kentucky Board of Medical Licensure, No. 2015-CA-000700-MR. No response was filed to the motion, and the Court granted it on July 7, 2017. On August 16, 2018, the Supreme Court rendered an opinion in the Strauss case, 558 S.W.3d 443 (Ky. 2018), and this matter was returned to the Court's active docket on December 3, 2018 and once briefing was completed, it was assigned to this January 2020 merits panel.
FACTUAL AND PROCEDURAL HISTORY
In 2010, Roberts became employed as the medical director of the Abundant Living Medical Clinic ("Abundant Living") in Lexington, Kentucky. Abundant Living was a non-physician-owned clinic that offered hormone replacement therapy and weight loss solutions to its patients. At the time he was hired by Abundant Living, Roberts had no specialized training in hormone replacement therapy.
Not long after Roberts became employed at Abundant Living, KBML began receiving complaints from or on behalf of numerous patients. In addition, the Consumer Protection Division of the Office of the Attorney General also received at least one complaint. KBML opened an investigation and eventually issued a complaint containing numerous charges against Roberts' medical license. A hearing was held June 9 to 12, 2014. Following the hearing, the complaint was amended to include an additional charge based on Roberts' testimony that he had prescribed controlled substances to himself and his wife. A hearing was held to address the additional charge in October 2014.
The hearing officer found that KBML met its burden of proof with regard to some of the charges against Roberts, but not others. By a preponderance of the evidence, the hearing officer found that Roberts was grossly negligent, grossly ignorant, and grossly incompetent, and that he departed from or failed to conform to acceptable and prevailing medical practices by (1) failing to maintain appropriate patient records and progress notes; (2) providing hormones and vitamin supplements to patients who did not demonstrate a medical necessity; (3) providing testosterone pellets to female patients who did not have a testosterone deficiency and/or failing to administer a less potent form of testosterone; (4) failing to conduct adequate follow-up monitoring of patients which, in the case of Patient A, resulted in a life-threatening medical condition; and (5) providing high doses of testosterone to male patients who did not demonstrate a deficiency, which caused some patients to have dangerously high red blood cell counts and high levels of hemoglobin and hematocrit. The hearing officer recommended KBML "take any appropriate action against [Roberts'] license for his violations of the statutes governing the practice of medicine." Roberts filed detailed exceptions to the recommended order.
See KRS 311.595(9), as illustrated by KRS 311.597(3).
See KRS 311.595(9), as illustrated by KRS 311.597(4).
On March 23, 2015, KBML entered an administrative order indefinitely restricting Roberts' license to practice medicine. In particular, the order restricted his practice to emergency medicine in an emergency department or urgent care facility; limited his ability to prescribe controlled substances; prevented Roberts from prescribing controlled substances to himself or family members; required him to attend various courses and seminars; ordered him to pay a fine of $15,000.00; and ordered Roberts to reimburse KBML for the costs of the proceedings in the amount of $17,872.31.
The basis of Roberts' appeal stems from an action he filed in Jefferson Circuit Court regarding the aforementioned order and the disciplinary proceedings that accompanied it. In his petition for judicial review, Roberts asserted that KBML's order was in violation of constitutional or statutory provisions. He also argued that KBML engaged in arbitrary and capricious conduct, as well as misconduct. Roberts motioned the circuit court for an order permitting him to conduct discovery related to his allegations of misconduct against KBML. The circuit court denied his motion and eventually affirmed KBML's final order of indefinite restriction on Roberts' license. This appeal followed.
Roberts makes two arguments on appeal. The first is that the circuit court erred in not permitting him to conduct discovery pursuant to KRS 13B.150(1) and Maggard v. Com., Bd. of Examiners of Psychology, 282 S.W.3d 301 (Ky. 2008). Roberts next offers an alternative interpretation of the Kentucky Supreme Court's holding in Kentucky Board of Medical Licensure v. Strauss, 558 S.W.3d 443 (Ky. 2018), regarding KBML's discretion to consider what, if any, portions of the record it considers before entry of a final order. We disagree with Roberts that Maggard mandates he is permitted to conduct discovery based on the allegations contained in his petition for judicial review. We likewise disagree with his alternative interpretation of the Kentucky Supreme Court's holding in Strauss.
ANALYSIS
In Maggard, the appellant cited six claims of fraud and misconduct against KBML that contained factual allegations related to the proceedings. In holding that the circuit court erred in not allowing Maggard to conduct discovery related to his allegations of fraud and misconduct, the Kentucky Supreme Court stated:
Maggard's claims of fraud and misconduct were stated as follows:
(1) The Members of the Hearing Panel were not truthful in responding to the voir dire questions as to their knowledge of the circumstances involving the Petitioner and the current members attendant to the ongoing proceedings between the Petitioner, Barbara Emler, and the matters concerning the litigation existing between Barbara Emler and the two (2) patients then the subject of the Administrative Hearing;
(2) That upon at least one occasion (prior to the Administrative Hearing) the hearing [sic] that the Board of Examiners of Psychology, to include the Members of the Hearing Panel, met in an executive session to discuss the need for its "expert" to have counsel to contend with Petitioner's assertion that the Board was aiding and assisting in the intimidation and harassment of the Petitioner while and during the time he was a witness in a judicial proceeding; this meeting was not divulged to the Petitioner, nor was the fact that the Board's "expert" was then designated as an agent of the Board;
(3) That prior to the initiation of the formal Complaint, the Board deviated from its common and usual practice of allowing the licensee to respond on the merits, and issued a formal Complaint knowing that it had not received a response "on the merits" from this Petitioner;
(4) During the voir dire of the Hearing Panel, at least one member of the Hearing Panel concealed the existence of knowledge of the matters attendant to the Petitioner which were acquired outside of the scope of the Record, and covered matters which were specifically excluded from the record;
(5) That the Hearing Panel abandoned its adjudicative functions and adopted a prosecutorial and investigative role at the conclusion of the hearing by reopening the hearing and pursuing discovery on its own accord, and utilizing as its counsel the counsel for the Board who was at the same time prosecuting the matter on behalf of the Board; and,
(6) In its efforts to acquire the patient records of Lisa Wagers, the Board sought to compel both the Petitioner and his expert witness to commit ethical violations and sought to induce these violations by promising immunity for these circumstances.
In the instant case, some of the claims of fraud and misconduct are confusing, and it is unclear whether some of the alleged conduct would actually rise to the level of fraud or misconduct. However, the claims of concealment of ex parte knowledge and the lack of truthfulness on voir dire are troubling to this Court, as are the claims that the hearing panel was not acting independently of the Board. These are the types of factual allegations that statements need for discovery.Maggard, 282 S.W.3d at 305-06 (Ky. 2008) (emphasis added).
In the instant action unlike the Maggard case, Roberts makes no factual allegations of misconduct, but rather makes assertions that are broad and vague. His claim of misconduct contained in the petition for judicial review reads, in relevant part, as follows:
(3) The KBML as a Board is guilty of misconduct by continuing to engage and retain an obviously biased [h]earing [o]fficer who not only violates the law at their direction (supra) but has also persistently demonstrated his willingness to fabricate evidence that does not exists [sic] in Administrative Records; misrepresents the import of the actual evidence in the Record, and/or otherwise ignores the "preponderance of evidence" when that evidence existing in the Record is against the KBML and its asserted allegations as is presented in this case[.]
Roberts made a total of four allegations that he labeled as "misconduct" in his petition for judicial review. The first and second allegations are discussed later in this opinion pursuant to Strauss. Roberts does not argue his fourth allegation to this Court (i.e., that KBML committed misconduct by not considering the professional impact upon the ability of Roberts to practice medicine outside of the Commonwealth of Kentucky). Thus, we shall not address it herein.
Roberts points to nothing in the record or proceedings to demonstrate the "obvious bias" of the hearing officer. We also note that, if Roberts had concerns regarding the impartiality of the hearing officer, KRS 13B.040(2)(a) provides, in relevant part, that "[a]ny party may request the disqualification of a hearing officer, agency head, or member of the agency head by filing an affidavit, upon discovery of facts establishing grounds for a disqualification, stating the particular grounds upon which he claims that a fair and impartial hearing cannot be accorded." The record before us contains no indication that Roberts took any steps to disqualify the hearing officer prior to the hearing due to perceived bias or any other reason. Roberts also does not allege any facts, or point to anything at all in the record, that shows the hearing officer's persistent "willingness to fabricate evidence that does not exist." Likewise, Roberts does not make any factual allegations regarding the hearing officer's misrepresentation of the evidence in the record, i.e., he does not specify what evidence in the record was misrepresented by the hearing officer as contained in his findings of fact, conclusions of law, and recommended order. This total lack of factual allegations is in contrast with the factual allegations of fraud and misconduct alleged in Maggard and is therefore distinguishable. We recognize that the Kentucky Supreme Court has held that "in cases where fraud is alleged on judicial review of an administrative action, the requirement of pleading fraud with particularity in CR 9.02 does not apply[.]" Maggard, 282 S.W.3d at 305. However, Roberts' complaint of misconduct is completely devoid of any factual allegations whatsoever, in contrast to Maggard. For that reason, his argument must fail.
Kentucky Rule of Civil Procedure.
Finally, Roberts argues to this Court that
[i]n order to underscore the importance of discovery one must understand the unique and critical role the [h]earing [o]fficer plays in this hearing process. As will be discussed below, at the time the [h]earing [p]anel
considered the Recommendations and Exceptions filed thereto by Dr. Roberts, the [h]earing [p]anels were being instructed that they did not, and should not, review any of the administrative record and that they could rely entirely upon the work product of their [h]earing [o]fficer. Thus, we know that the [h]earing [p]anel did not look at the Exceptions filed juxtaposed against the Recommendations because the concerned panel members did not have any idea that they could actually go to the administrative record to answer any questions they had about the actual discrepancies raised in Dr. Roberts' Exceptions.
Roberts does not specify who, or what, was "instructing" KBML that it should not review the administrative record prior to issuing its final order, and his argument lacks any factual basis. His assertion that the panel members "did not have any idea that they could actually go to the administrative record to answer any questions they had" likewise has no basis in fact or law. Accordingly, this argument must also fail.
See KRS 13B.120(1).
Roberts next invites this Court to ignore the plain language contained in KRS 13B.120 and the Kentucky Supreme Court's holding in Strauss. We decline to do so.
In his petition for judicial review, Roberts also claims that KBML violated KRS 13B.110(1) because the hearing officer failed to recommend a specific penalty, but he did not pursue that argument on appeal to this Court. The Kentucky Supreme Court has since held that a hearing officer need not recommend a specific penalty under the statute. See Strauss, 558 S.W.3d at 453. --------
KRS 13B.120(1) states:
In making the final order, the agency head shall consider the record including the recommended order and any exceptions duly filed to a recommended order.
The Kentucky Supreme Court conducted a thorough analysis of the statute in Strauss and ruled that
[b]y focusing on the recommended order and the exceptions, the Board members can determine what, if any, portion of the hearing transcript or exhibits they may want to review. In short, it is entirely possible for the Board to reject all or part of the recommended order without a full-fledged, independent review of the entire proceedings because the order and the exceptions provide a roadmap that allows the Board members to identify any points of concern that may merit further examination and, where appropriate, review the relevant part of the record.Strauss, 558 S.W.3d at 456-57 (emphasis added).
. . . .
In sum, the Board is charged with considering the record including the recommended order and exceptions. The extent of the record consideration beyond the recommended order and exceptions is a matter committed to the Board's sound discretion. Contrary to Strauss's claim, KRS 13B.120 does not mandate an independent review of the entire record.
In a tortured reading of the Kentucky Supreme Court's ruling, Roberts urges this Court to hold that use of KBML's discretion is mandatory. Roberts argues
[a] thoughtful consideration of the Supreme Court's holdings juxtaposed against the realities of the adjudicative circumstances that existed at the time the
Board members considered the Recommendations of its [h]earing [o]fficer and the Exceptions thereto filed by Dr. Roberts indicates that the Supreme Court is actually requiring that the Board should have exercised discretion in making that determination. In other words, the discretion to further review parts of the hearing transcript to determine the accuracy of the factual determinations recommended by its [h]earing [o]fficer and/or the factual correctness of the [h]earing [o]fficer's Recommendation with respect to discreet medical questions was, in fact, mandatory. In other words, the [h]earing [p]anel could not simply "rubberstamp" the [h]earing [o]fficer's Recommendations.
KBML's final order indicates that it reviewed the complaint; the hearing officer's recommended findings of fact, conclusions of law, and recommended order; Roberts' exceptions; and the memorandum from KBML's general counsel. Roberts was given notice of the proceeding and an opportunity to be heard, but he did not appear. To that end, Roberts argues
[a] fair reading of the first paragraph of that Order clearly indicates that the concerned [h]earing [p]anel did not exercise any discretion in terms of deciding whether or not to review any portions of the administrative hearing transcript. Moreover, that fact is buttressed by the consistent arguments made by the Board (at that time) that it did not have to review the administrative record in any regard, and, in turn, could (and did) entirely rely upon the "work product" of its [h]earing [o]fficer. Thus, by the Board's subsequent arguments both before this Court and the Supreme Court, it is clear that the concerned [h]earing [p]anel exercised no discretion at all in that regard.
Further, Dr. Roberts asserts that the Supreme Court's ruling in [Strauss] (supra) now causes an extra emphasis to be placed upon the [h]earing [p]anel's review of the evidence presented in the concerned administrative hearing where the Exceptions make significant issues as to the "Recommendations."
In other words, Roberts has repackaged the same argument offered in Strauss and asks us to interpret Strauss in a strained and non-obvious manner that would produce an opposite result. But, the Kentucky Supreme Court's ruling in Strauss requires no further clarification by this Court and plainly refutes Roberts' contention that any error occurred.
CONCLUSION
For the foregoing reasons, the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: J. Fox DeMoisey
Louisville, Kentucky BRIEF FOR APPELLEE: Leanne K. Diakov
Louisville, Kentucky
Maggard, 282 S.W.3d at 303-04.