Opinion
NO. 2016-CA-000524-MR
02-09-2018
RICHARD T. WAN, M.D. APPELLANT v. COMMONWEALTH OF KENTUCKY, BOARD OF MEDICAL LICENSURE APPELLEE
BRIEF FOR APPELLANT: David F. Broderick Brandon T. Murley Bowling Green, Kentucky BRIEF FOR APPELLEE: Leanne K. Diakov General Counsel Kentucky Board of Medical Licensure Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 15-CI-000556 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. MAZE, JUDGE: Richard T. Wan, M.D. (Dr. Wan) appeals from an order of the Jefferson Circuit Court that affirmed an order of indefinite suspension of his medical license by the Kentucky Board of Medical Licensure (the Board). Dr. Wan argues that the Board's order was not supported by substantial evidence and that the Board failed to afford him with procedural due process. Finding no error, we affirm.
The relevant facts of this action are not in dispute. Dr. Wan practiced medicine for over 48 years, and until 2002 was only one of two doctors in the Butler County, Kentucky area. In January 2012, the KASPER Advisory Council identified Dr. Wan as prescribing a large quantity of hydrocodone. The Office of the Inspector General's Drug Enforcement Division (OIG) conducted an investigation of Dr. Wan's prescribing patterns. That analysis identified concerns regarding Dr. Wan's prescription patterns, including a very high number of prescriptions written per day. The OIG's further investigation found that Dr. Wan had significantly deviated from acceptable and prevailing medical practices.
The Kentucky All-Schedule Prescription Electronic Reporting (KASPER) System is an electronic system established by Kentucky Revised Statutes (KRS) 218A.202 to monitor prescriptions of controlled substances. --------
On May 22, 2013, Dr. Wan agreed to resolve the Board's investigation by entering into an Agreed Order of Indefinite Restriction. Dr. Wan stipulated to the facts supporting the Board's action and agreed to the imposition of the following conditions:
• To be restricted from prescribing, dispensing or professionally utilizing controlled substances
• To submit to a clinical skills assessment in the specialty of family medicine (with a component emphasis in prescribing for chronic pain) at the Center for Personalized Education for Physicians ("CPEP")
• To enroll in and complete the post-documentation seminar Personalized Implementation Program ("PIP");
• To reimburse the Board's costs no later than November 22,
2013; and
• Not to violate any provision of KRS 311.595 and/or 311.597.
Pursuant to these conditions, Dr. Wan took the remedial education courses and underwent the clinical skills assessment at the CPEP facility in Colorado. However, he was unable to fully complete the assessment. CPEP staff reported that Dr. Wan was presented with scenarios relating to the prescribing of medication for chronic pain management. Dr. Wan did not engage in these discussions, stating only that he refers all patients to pain specialists. In addition, CPEP reported that Dr. Wan's notes from his simulated patient encounters were inadequate. Finally, CPEP found significant deficiencies in Dr. Wan's medical knowledge, clinical judgment and reasoning, documentation, and communication skills during the assessment. CPEP recommended that Dr. Wan should retrain in a residency or residency-like setting until he could remediate those deficiencies.
On November 22, 2013, the Board issued a complaint and an emergency order of suspension against Dr. Wan's medical license. In addition to his violations set out in CPEP's report, the Board noted that Dr. Wan had not reimbursed the costs as required in the Agreed Order. Dr. Wan was served with the complaint and order on November 26, 2013. On December 2, 2013, the Board received a reimbursement of its costs from Dr. Wan, by a check dated November 27, 2013.
At Dr. Wan's request, an emergency hearing was held on December 11, 2013. The hearing officer issued an order affirming the emergency order of suspension. Thereafter, Dr. Wan sought judicial review. In a separate action, the Jefferson Circuit Court affirmed the emergency order of suspension.
In the interim, Dr. Wan responded to the complaint, and a full evidentiary hearing was held on October 7-9, 2014. The hearing officer issued his Findings of Fact, Conclusions of Law and Recommended Order on December 8, 2014. The hearing officer concluded that the preponderance of evidence supported a finding that Dr. Wan had violated KRS 311.595(13) in two ways:
(1) By failing to reimburse the Board no later than November 22, 2013; and
(2) by refusing to participate in components of the clinical skills assessment designed to assess his prescribing for chronic pain.
However, the hearing officer found that Dr. Wan did not violate KRS 311.595(9), as illustrated by KRS 311.597(3) and (4), for his inability to conform to acceptable and prevailing medical practices upon the clinical skills assessment. Dr. Wan filed timely exceptions to the hearing officer's report. Thereafter, on January 15, 2015, the Board's hearing Panel B adopted the hearing officer's findings in full and entered a final order of Indefinite Restriction. The order restricted Dr. Wan from practicing medicine in the Commonwealth for a period of at least two years, and required him to reimburse the Board's costs of the proceeding within one year.
Dr. Wan filed a timely petition for judicial review pursuant to KRS 13B.140. After considering the record and arguments of counsel, the circuit court affirmed the Board. The court found that there was substantial evidence to support the findings of violation. The court further found that the Board's proceedings afforded Dr. Wan with all of the due process to which he was entitled. Dr. Wan now appeals. Additional facts will be set forth in this opinion as necessary.
Judicial review of actions by the Board is limited. The courts may only disturb the Board's actions if they: (1) constitute a clear abuse of its discretion; (2) are clearly beyond its delegated authority; or (3) violate the procedure for disciplinary action as described in KRS 311.591. KRS 311.555. This standard is a codification of the test for review of administrative actions set forth in American Beauty Homes Corp. v. Louisville and Jefferson County Planning & Zoning Comm'n, 379 S.W.2d 450 (Ky. 1964). On factual issues, a court reviewing the agency's decision is confined to the record of proceedings held before the administrative body and is bound by the administrative decision if it is supported by substantial evidence. Commonwealth, Transportation Cabinet v. Cornell, 796 S.W.2d 591, 594 (Ky. App. 1990). On the other hand, "this Court is authorized to review issues of law on a de novo basis." Aubrey v. Office of Attorney General, 994 S.W.2d 516, 519 (Ky. App. 1998).
Dr. Wan admits that he accepted the conditions set out in the 2013 Agreed Order of Indefinite Restriction. He also admits that he failed to send the payment of costs to the Board before November 22, 2013. However, he contends that the payment of costs does not implicate his ability to practice medicine. Nevertheless, Dr. Wan expressly agreed that a violation of any term or condition of the 2013 Agreed Order would authorize the Board to suspend his license. Furthermore, the hearing officer found Dr. Wan's explanations for the untimely payment to be unbelievable. Therefore, the Board did not abuse its discretion by relying on his late payment as a basis to restrict his medical license.
Moreover, the Board primarily relied on the CPEP Assessment in entering the order of indefinite suspension. Dr. Wan takes issue with the methodology and conclusions of that Assessment. He claims that he misinterpreted the clinical scenarios presented by CPEP as real, and that he was trying to avoid violating the prescription restrictions imposed under the Agreed Order. Dr. Wan also alleges that the dictation equipment malfunctioned during the assessment process, explaining the deficiencies which CPEP noted in Dr. Wan's documentation. Finally, Dr. Wan generally asserts that the CPEP assessment was conducted in an unprofessional and chaotic manner, so that the conclusions in its report were unreliable.
However, when substantial evidence supports the Board's decision, a reviewing court must defer to the finding even when the record contains evidence to the contrary. Urella, M.D. v. Kentucky Bd. of Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997). Here, the Board fully considered Dr. Wan's allegations about the alleged deficiencies in the CPEP assessment, as well as the testimony that Pcontradicted Dr. Wan's allegations. In particular, Dr. Wan was informed that the clinical skills assessment procedures would involve hypothetical and simulated patients. Dr. Wan gave conflicting reasons for his failure to participate in this portion of the CPEP assessment, and the hearing officer found his explanations to be not credible.
In contrast, the hearing officer found merit to some of Dr. Wan's objections to the Assessment Report, and discounted those conclusions accordingly. But the hearing officer found that the other deficiencies found in the CPEP assessment were sufficient to support a finding that Dr. Wan violated the terms of the 2013 Order. We find that this conclusion was supported by substantial evidence.
Finally, we agree with the circuit court that Dr. Wan was given notice of the Board's intended action and a meaningful opportunity to be heard. Abul-Ela, M.D. v. Kentucky Board of Medical Licensure, 217 S.W.3d 246, 251 (Ky. App. 2006). The hearing officer also gave Dr. Wan ample opportunities to present evidence and to challenge the witnesses and evidence against him. Under the circumstances, we find no basis to disturb the Board's order.
Accordingly, we affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: David F. Broderick
Brandon T. Murley
Bowling Green, Kentucky BRIEF FOR APPELLEE: Leanne K. Diakov
General Counsel
Kentucky Board of Medical Licensure
Louisville, Kentucky