Opinion
NO. 2012-CA-000756-MR
04-19-2013
ALI SHAMAEI ZADEH, M.D. APPELLANT v. KENTUCKY BOARD OF MEDICAL LICENSURE APPELLEE
BRIEF FOR APPELLANT: J. Fox De Moisey Louisville, Kentucky BRIEF FOR APPELLEE: C. Lloyd Vest II Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 11-CI-007467
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND VANMETER, JUDGES. COMBS, JUDGE: Ali Shamaei Zadeh, M.D., appeals from an order of the Jefferson Circuit Court dismissing his appeal because the court determined that it lacked subject matter jurisdiction. After our review, we affirm.
Following a series of disciplinary actions and pursuant to its statutory authority, the Kentucky Board of Medical Licensure (the Board) issued an order on March 7, 2000, revoking Dr. Shamaei Zadeh's medical license. In October 2003, Dr. Shamaei Zadeh petitioned the Board for a license to practice once again in the Commonwealth of Kentucky. The Board denied the petition, and its decision was ultimately affirmed on appeal by the circuit court.
In February 2009, Dr. Shamaei Zadeh again petitioned the Board for a license to practice in our Commonwealth. Pursuant to its statutory authority, the Board voted to defer its decision on the petition and ordered Dr. Shamaei Zadeh to submit to an assessment by the Center for Personalized Education for Physicians (CPEP). The Board sought a basis to evaluate Dr. Shamaei Zadeh's clinical skills and fitness for practice. The assessment was undertaken in Colorado on August 20-21, 2009.
An extensive report was submitted by the CPEP, which indicated, in part, as follows:
Dr. Shamaeizadeh's cognitive function screen results were abnormal with low scores on tests of attention, verbal memory, reasoning and problem solving that were not obviously explained by his cultural and language background. The neuropsychology consultant who reviewed this screening recommended further neurocognitive evaluation.Report at 26.
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During the Assessment, Dr. Shamaeizadeh demonstrated knowledge of outpatient general medicine that was limited in depth and scope with a few exceptions.
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In the hypothetical scenarios presented, Dr. Shamaeizadeh's clinical reasoning and judgment were inadequate overall.
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Despite Dr. Shamaeizadeh's completion of more than 200 hours of CME in the past 36 months, he demonstrated multiple knowledge and judgment deficits. Because of the extent of the deficiencies identified, Dr. Shamaeizadeh's educational needs will be challenging to remediate and will require intensive supervision and ongoing monitoring over an extended period of time to ensure success.
CPEP believes that the best option would be for Dr. Shamaeizadeh to retrain in a residency or residency-like setting. However, if the Board were to consider allowing Dr. Shamaeizadeh to retrain in a non-residency setting, an education plan designed to meet Dr. Shamaeizadeh's educational needs would require significant educational resources, time, effort and expense. CPEP is unsure whether it would be feasible to assemble the educational resources needed for Dr. Shamaeizadeh to successfully address his educational needs outside of a residency setting. . . .
CPEP is available to speak with the Board and Dr. Shamaeizadeh about options including an Educational Intervention. However, CPEP would require Dr. Shamaeizadeh to complete a comprehensive neuropsychological evaluation and would need to review the results of such testing before making any further educational recommendations.
Apart from its educational recommendations and offer of further assistance, the CPEP also made a recommendation based upon the results of its neuropsychological screening: that Dr. Shamaei Zadeh undergo an extensive neuropsychological evaluation to rule out an underlying medical or neurological disease. In its report, the CPEP cautioned that Dr. Shamaei Zadeh should be evaluated by a "neuropsychologist who has experience working with physicians or other individuals who need a high level of cognitive functioning to perform their jobs. . . ." Report at 25. It recommended "a selection of tests that take into account the high level of function necessary for a practicing physician." Id.
On December 10, 2009, Dr. Shamaei Zadeh submitted to a neurological evaluation by a physician of his choosing. An assessment of his executive functioning indicated that he was mildly to moderately impaired, but the evaluator specifically noted that his assessment of Dr. Shamaei Zadeh was not useful for determining his competency to practice medicine.
On May 13, 2010, the Maryland State Board of Physicians denied Dr. Shamaei Zadeh's petition for reinstatement of his license to practice in that state. On May 28, 2010, Dr. Shamaei Zadeh renewed his petition for a license to again practice in Kentucky.
In this petition, Dr. Shamaei Zadeh inquired whether he might be permitted to resume practice under the supervision of a proctor rather than having to re-train in a residency-like setting as recommended by the CPEP. In response, Dr. Shamaei Zadeh was referred for a neuropsychological evaluation to be performed by a Board-approved physician.
The neuropsychological evaluation was undertaken in September 2010, and it indicated, in part, as follows:
The results of the current neuropsychological evaluation appear to indicate that this man is an individual of global Low Average functioning, a condition that appears to have been with him for the past 20 years and does not seem to be progressing.By correspondence dated November 15, 2010, Dr. Shamaei Zadeh's counsel asked that his petition for a license to practice be withdrawn.
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The gentleman is functioning within the Low Average range, a level of ability below that anticipated for someone with a medical school education. In addition, the person performed within the Low Average range on tests evaluating verbal comprehension and perceptual reasoning.
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[A]s noted in the assessment by the [CPEP], this gentleman does not appear to possess the sophisticated intellectual abilities required for the practice of medicine.
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It is recommended that if this subject's license is to be reinstated that he proceed with continuing medical education to remediate the noted inadequacies and lack of competencies listed by the [CPEP] assessment.
On January 14, 2011, Dr. Shamaei Zadeh renewed his petition for the third time following its revocation on March 7, 2000. He asked that he be permitted to resume practice under the supervision of a practicing physician rather than having to complete a residency-like program.
At its regular quarterly meeting held on February 17, 2011, the Board voted to "defer action on Dr. Shamaeizadeh's request for reinstatement until he completes an approved residency." Dr. Shamaei Zadeh and his counsel were present and addressed the Board during the meeting; they were aware of the Board's decision to defer consideration of the petition.
On October17, 2011, Dr. Shamaei Zadeh once again renewed his petition for a license, again requesting that he be permitted to resume practice under the supervision of a practicing physician rather than be required to complete a residency-like training program. In response, the Board provided Dr. Shamaei Zadeh's counsel with a copy of the minutes of its meeting of February 17, 2011.
Dr. Shamaei Zadeh replied immediately to the Board. In his correspondence, counsel for Dr. Shamaei Zadeh asked whether his request to re-train by working under the supervision of a practicing physician would be reconsidered at the Board's November meeting. The Board's counsel responded and advised that the matter would not be reconsidered at the November meeting since the Board had decided to defer its decision until such time as Dr. Shamaei Zadeh complied with its requirement that he complete an approved residency program.
On October 20, 2011, Dr. Shamaei Zadeh filed an appeal in Jefferson Circuit Court. He asked the court to compel the Board to show cause why his petition for a license to again practice in the Commonwealth should not be reconsidered and granted. In the alternative, he sought an order compelling the Board to grant his petition.
The Board filed a motion to dismiss. It contended that the correspondence from its counsel did not constitute a final judgment or a "de facto order" as argued by Dr. Shamaei Zadeh. By its order entered on March 22, 2012, the circuit court granted the Board's motion to dismiss. This appeal followed.
On appeal, Dr. Shamaei Zadeh contends that the circuit court erred: (1) by refusing to compel the Board to show cause why his petition for a license to again practice in the Commonwealth should not be reconsidered and granted or (2) in the alternative, by refusing to order the Board to grant his petition. We disagree.
The provisions of Kentucky Revised Statute[s] (KRS) 311.593(2) direct that any physician aggrieved by a final order of the Board denying a license may seek judicial review of the order by filing a petition in Jefferson Circuit Court. KRS 13B. 140(1) provides that a party shall appeal from an administrative agency's decision by filing a petition within thirty (30) days after the final order of the agency is mailed or delivered by personal service.
Dr. Shamaei Zadeh characterizes the Board's vote of February 17, 2011 -- to defer a decision on his petition until such time as he completed a residency program -- as an interlocutory order. Thus, we cannot review a non-final order of the Board pursuant to the provisions of KRS 311.593(2) and KRS 13B. 140(1).
However, Dr. Shamaei Zadeh also argues that "[b]etween February 2011 and October 2011," he came to the conclusion "that qualifying for an 'approved' residency was an impossibility." Reply Brief at 2. In reliance on this conclusion and belief, Dr. Shamaei Zadeh argues that the Board's refusal to reconsider its decision of February 17, 2011, as evidenced by counsel's correspondence of October 2011, constitutes "arbitrary and capricious conduct" forbidden by Section 2 of the Kentucky Constitution. Consequently, he reasons, the Board's action is constitutionally subject to judicial review separate and apart from finality considerations. Id. at 3.
Dr. Shamaei Zadeh's claim of arbitrariness rests on his assumption that he can never qualify for a residency or residency-like program necessary for his required re-training. He has not challenged the Board's conclusion that his necessary re-training would require intensive supervision. No such argument has ever been before the Board.
By express legislative authority, the Board has been charged with the exercise of discretionary judgment in a highly specialized field. We cannot agree with Dr. Shamaei Zadeh's subjective belief that the Board's legitimate exercise of its discretion amounts to arbitrariness subject to judicial review. See American Beauty Homes Corp. v. Louisville & Jefferson Co. Planning & Zoning Comm'n., 379 S.W.2d 450 (Ky. 1964). Consequently, we conclude that the circuit court properly dismissed his appeal.
We affirm the order of circuit court dismissing the appeal.
ALL CONCUR. BRIEF FOR APPELLANT: J. Fox De Moisey
Louisville, Kentucky
BRIEF FOR APPELLEE: C. Lloyd Vest II
Louisville, Kentucky