Opinion
112,136.
02-06-2015
Sergey SHUSHUNOV, M.D., Appellant, v. KANSAS STATE BOARD OF HEALING ARTS, Appellee.
Mark W. Stafford, of Simpson, Logback, Lynch, Norris, P.A., of Topeka, for appellant. Stacy R. Bond, assistant general counsel, of Kansas State Board of Healing Arts, for appellee.
Mark W. Stafford, of Simpson, Logback, Lynch, Norris, P.A., of Topeka, for appellant.
Stacy R. Bond, assistant general counsel, of Kansas State Board of Healing Arts, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Sergey Shushunov, M.D., appeals from the district court's decision affirming the Kansas State Board of Healing Arts' revocation of his license to practice medicine in the state of Kansas. The Board of Healing Arts revoked Shushunov's medical license because he violated K.S.A.2013 Supp. 65–2836(c) following two felony convictions in Illinois. Specifically, Shushunov was convicted of attempted armed robbery and aggravated battery in September 2012. On appeal, Shushunov contends that the revocation of his medical license by the Board of Healing Arts was not supported by substantial evidence and that the Board of Healing Arts erred in denying his request that the conference hearing be converted to a formal hearing. Because we find that there is substantial evidence in the record to support the revocation of Shushunov's license to practice medicine and because we do not find that the Board of Healing Arts erred in proceeding with a conference hearing, we affirm.
Facts
On May 17, 2011, police in Skokie, Illinois responded to a report of a home invasion. During the investigation, police learned that Shushunov—a board certified pediatrician—went into the home of Jeffrey Larson to confront him about having a sexual relationship with Shushunov's wife. The investigation revealed that Shushunov entered Larson's house—with a handgun in his pocket—through an unlocked front door. Larson's 10– and 15–year–old daughters were in the living room of the home at the time, and Shushunov asked them where their father was. Shushunov then entered an upstairs bedroom where Larson was talking to Shushunov's wife on a cell phone.
In the bedroom, Shushunov pointed the handgun at Larson, repeatedly hit Larson in the face with a closed fist, and yelled at Larson to leave his wife alone. Before Shushunov left the bedroom, he took Larson's cell phone. Although Shushunov had left Larson's residence by the time the police arrived, Larson was able to identify his assailant. The police subsequently questioned Shushunov at his residence. At first, Shushunov denied having been in Skokie.
During questioning, Shushunov admitted that he knew Larson was having an affair with his wife. Shushunov also told police he had helped set up the Match.com account for his wife on which the she had met Larson. When asked why he would encourage his wife to seek out other men, Shushunov told the police that he viewed sex as a purely physiological need.
The State of Illinois charged Shushunov with 4 counts—intentionally causing injury to a person during a home invasion, committing a home invasion armed with a firearm, attempted armed robbery, and aggravated battery—on July 18, 2011. Subsequently, on September 27, 2012, Shushunov pled guilty to—and was convicted of—attempted armed robbery and aggravated battery in the Circuit Court of Cook County, Illinois. Shushunov was sentenced to 6 months in the Cook County Department of Corrections and was placed on 2 years of probation from the date of sentencing. After serving 3 months in jail, Shushunov was released for good behavior but remained on probation.
On September 12, 2013, a petition was filed with the Board of Healing Arts seeking revocation of Shushunov's license to practice medicine in the State of Kansas under K.S.A.2013 Supp. 65–2836(c). The Board of Healing Arts sent Shushunov a notice of conference hearing on September 19, 2013. Although Shushunov's attorney moved for a continuance on October 1, 2013, she did not request a formal hearing. The Board of Healing Arts granted the motion for a continuance and rescheduled the conference hearing.
On December 13, 2013, the conference hearing commenced before seven members of the Board of Healing Arts. Towards the beginning of the hearing, Shushunov's attorney inquired if the Board of Healing Arts would be “amenable” to “consider convening a more formal hearing” because she believed the conference hearing “could take one to two hours to get through as well as the testimony of ... Dr. Shushunov.” After a discussion, Shushunov's attorney stated that she would “love to finish [the hearing] today” and proceeded to have her client sworn in to testify.
In addition to Shushunov's testimony, the Board of Healing Arts reviewed 23 exhibits that the parties admitted into evidence. Members of the Board of Healing Arts exchanged and reviewed many of the exhibits prior to the conference hearing. Further, the Board of Healing Arts heard the arguments of legal counsel before unanimously voting to revoke Shushunov's license to practice medicine in the State of Kansas.
Following the conference hearing, on December 31, 2013, the Board of Healing Arts filed a final order revoking Shushunov's license. In the final order, the Board of Healing Arts found that Shushunov violated K.S.A.2013 Supp. 65–2836(c) when he was convicted of two felonies. It also found that Shushunov was still on probation and that he had presented no evidence about his compliance with the terms of his probation. In addition, the final order discussed the mitigating circumstances presented by Shushunov as well as the evidence he presented regarding rehabilitation. It noted that “[n]one of the documentary evidence includes any professional opinions regarding [Shushunov's] rehabilitation as it relates to the practice of medicine” and that it viewed the affidavits presented “as statements of endorsement by [Shushunov's] peers, rather than as specific evidence of rehabilitation.” Accordingly, the Board of Healing Arts concluded that Shushunov had failed to present “clear and convincing evidence that he will not pose a threat to the public in his capacity as a licensee and that has been sufficiently rehabilitated to warrant public trust.”
On January 16, 2014, Shushunov had new counsel file a motion for reconsideration and a motion for stay. In the motion for reconsideration, Shushunov requested a full hearing on the revocation of his license and argued that the eight factors set forth in Vakas v. Kansas State Board of Healing Arts, 248 Kan. 589, 808 P.2d 1355 (1991), should be weighed in his favor. On January 30, 2014, the Board of Healing Arts denied both motions.
On February 13, 2014, Shushunov filed a petition for judicial review in Shawnee County District Court. At Shushunov's request, the district court entered a protective order finding portions of the agency record to contain privileged health information. Ultimately, on June 11, 2014, the district court entered a 13–page memorandum decision and order in which it affirmed the decision of the Board of Healing Arts to revoke Shushunov's medical license pursuant to K.S.A. 65–2836(c). Thereafter, Shushunov timely appealed to this court.
Analysis
Substantial Evidence
On appeal, Shushunov contends that the decision of the Board of Healing Arts—as well as the decision of the district court—was not supported by substantial evidence when viewed in light of the record as a whole. In response, the Board of Healing Arts contends that the evidence presented was sufficient to establish that Shushunov's license to practice medicine in Kansas should be revoked. Moreover, it contends that Shushunov failed to come forward with clear and convincing evidence to establish that he will not pose a threat to the public in his capacity as a medical licensee or that he has been sufficiently rehabilitated to warrant the public trust.
“Judicial review and civil enforcement of any agency action ... shall be in accordance with the Kansas judicial review act.” K.S.A.2013 Supp. 65–2851a(b) ; see Ryser v. State, 295 Kan. 452, 458, 284 P.3d 337 (2012) (holding the final orders of the Board of Healing Arts are subject to review under the Kansas Judicial Review Act). When reviewing a district court's decision on judicial review, we exercise the same statutorily limited review of an agency action as does the district court. See Clawson v. Kansas Dept. of Agriculture, 49 Kan.App.2d 789, 795, 315 P.3d 896 (2013). On appeal, the burden of proving the invalidity of an agency action rests on the party asserting the invalidity. K.S.A.2013 Supp. 77–621(a)(1) ; Milano's Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).
In the present action, Shushunov relies on K.S.A.2013 Supp. 77–621(c)(7), which provides that a reviewing court shall grant relief if
“the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.” (Emphasis added.)
Additionally, K.S.A.2013 Supp. 77–621(d) states:
“For purposes of this section, ‘in light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77–620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review. ” (Emphasis added.)
The Board of Healing Arts revoked Shushunov's medical license pursuant to K.S.A.2013 Supp. 65–2836(c), which states in relevant part:
“The board shall revoke a licensee's license following conviction of a felony occurring after July 1, 2000, unless a 2/3 majority of the board members present and voting determine by clear and convincing evidence that such licensee will not pose a threat to the public in such person's capacity as a licensee and that such person has been sufficiently rehabilitated to warrant the public trust.”
Here, it is undisputed that Shushunov was convicted of two felonies—attempted armed robbery and aggravated battery—after July 1, 2000. As such, the burden shifted to Shushunov to convince a 2/3 majority of the Board of Healing Arts—by clear and convincing evidence—(1) that he will not pose a threat to the public in his capacity as a medical licensee and (2) that he has been sufficiently rehabilitated to warrant the public trust. K.S.A.2013 Supp. 65–2836(c). Based on our review of the record as a whole, we conclude that Shushunov failed to meet his burden of establishing these elements by clear and convincing evidence.
Clear and convincing evidence is evidence that is sufficient to cause a factfinder to believe it is highly probable that the facts asserted are true. In re Alberg, 296 Kan. 795, 805, 294 P.3d 1192 (2013). Although Shushunov argues that the Board of Healing Arts failed to show that he is a threat to the public as a licensee, this was not the Board of Healing Arts' burden to prove. Rather, it was Shushunov's burden to prove that he will not pose such a threat. See K.S.A.2013 Supp. 65–2836(c). Moreover, Shushunov's argument on appeal is primarily an attempt to have this court reweigh the evidence presented to the Board of Healing Arts—something that we are expressly prohibited from doing. K.S.A.2013 Supp. 77–621(d).
The Board of Healing Arts considered all of the evidence presented by Shushunov but found that the evidence he offered was pertinent to his general well-being. It did not bear on whether he poses a threat to the public in his capacity as a medical doctor nor did it show that he had been sufficiently rehabilitated to warrant the public trust. The Board of Healing Arts further determined that Shushunov submitted the affidavits from his professional and personal colleagues primarily as endorsements of his personal character “rather than as specific evidence of rehabilitation.” Although we do not know why the Board of Healing Arts went on to note “that none of the affiants were made available for testimony and were not subject to cross examination,” such a finding was unnecessary and does not change the fact that Shushunov failed to establish by clear and convincing evidence the elements necessary to avoid revocation of his medical license.
Shushunov also argues that there was evidence supporting the eight factors set forth in Vakas, 248 Kan. at 600, 808 P.2d 1355. Although the Board of Healing Arts may find the Vakas factors persuasive in deciding whether to revoke a medical license, it is only required to apply them in deciding whether to reinstate a medical license upon application. It is important to note that the Vakas factors were taken from the case of State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981), which involved the reinstatement of a disbarred attorney and it does not appear these factors have been applied to an initial disbarment action. Moreover, the Kansas Supreme Court has found that the Vakas and Russo factors are inapplicable in an application for an initial real estate license because they only apply to requests for reinstatement. See In re Gates, 273 Kan. 1025, 1032, 46 P.3d 1206 (2002).
We find that the current action is controlled by K.S.A.2013 Supp. 65–2836(c), which sets forth two specific factors that are necessary for a medical licensee to prove by clear and convincing evidence to prevent revocation after he or she has been convicted of a felony. As indicated above, the record reflects that the Board of Healing Arts appropriately considered these factors in light of all the evidence presented. Furthermore, although Shushunov has cited evidence that might detract from the decision reached by the Board of Healing Arts, we find its final order to be based on factual determinations that are supported by evidence that is substantial when viewed in light of the record as a whole.
Use of Conference Hearing Procedure
Shushunov also contends that he is entitled to relief under K.S.A.2013 Supp. 77–621(c)(5) because the Board of Healing Arts failed to convert the conference proceeding to a formal hearing. K.S.A.2013 Supp. 77–621(c)(5) states that a court may review an agency action to determine if “the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure.”
A review of the record reveals that the Board of Healing Arts gave notice that a conference hearing would be held on at least two occasions prior to December 13, 2013. Shushunov did not object to this procedure nor did he request a formal hearing. At the conference hearing, Shushunov's former counsel inquired for the first time whether the Board of Healing Arts might be “amenable” to considering “a more formal hearing to be determined at a later date....” Shushunov's counsel estimated that it could take an hour or two to get through the exhibits and the testimony of her client. After a short discussion, in which a Board of Healing Arts member told Shushunov's attorney that she could assume that the Board of Healing Arts members thoroughly read and digested the exhibits before the hearing, she stated that she would “love to finish [the hearing] today” and proceeded to have her client sworn in to testify.
Shushunov never actually requested a hearing in order to call witnesses to testify on his behalf nor did he identify who else he wanted to call. His former counsel only requested a formal hearing because she did not think she could discuss all of the evidence in the time allotted for the hearing. But as soon as the Board of Healing Arts members assured her that they had reviewed the exhibits prior to the hearing, she decided to go forward with the conference hearing. Although Shushunov requested a formal hearing in his motion to reconsider filed after the Board of Healing Arts reached a decision to revoke his medical license, he does not argue on appeal that the Board of Healing Arts erred in denying his motion to reconsider.
Shushunov has not shown that the agency engaged in an unlawful procedure or failed to follow prescribed procedure by not converting the proceeding to a formal hearing. K.S.A.2013 Supp. 77–621(c)(5). Moreover, based on a review of the record as a whole and the fact that the Board of Healing Arts reached a unanimous decision, it is unlikely that Shushunov was prejudiced by the procedure that was utilized.
We, therefore, affirm the district court's decision affirming the Board of Healing Arts' revocation of Shushunov's medical license.
Affirmed.