Opinion
2022-CA-1338-MR
03-01-2024
HAZEM GARADA APPELLANT v. KENTUCKY BOARD OF MEDICAL LICENSURE APPELLEE
BRIEFS FOR APPELLANT: Hazem Garada, MD, pro se Fairfax Station, Virginia BRIEF FOR APPELLEE: Nicole A. King Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 22-CI-001751
BRIEFS FOR APPELLANT: Hazem Garada, MD, pro se Fairfax Station, Virginia
BRIEF FOR APPELLEE: Nicole A. King Louisville, Kentucky
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
OPINION
LAMBERT, JUDGE
Hazem Garada, M.D., proceeding pro se, appeals the October 5, 2022, opinion and order of the Jefferson Circuit Court affirming the final order of the Kentucky Board of Medical Licensure (the Board) denying his application to reregister his expired license to practice medicine in Kentucky. We affirm.
On October 21, 2021, Dr. Garada filed an application to reregister his Kentucky medical/osteopathic license, which had expired on March 1, 1995. In the application, he listed his specialty as internal medicine and stated that he had held medical/osteopathic licenses in the United Arab Emirates, Virginia, Kentucky, West Virginia, and Ohio. Dr. Garada indicated that he was willing to practice in any COVID-19 patient treatment medical facility to help with the pandemic. He answered "yes" to the following questions:
1) Since you last registered have you had any license, certificate, registration or other privilege to practice as a health care professional denied, revoked, suspended, probated, restricted, reprimanded, limited, or subjected to any other disciplinary action, by a state medical/osteopathic licensing board, or Federal or International authority with the exception of the Kentucky Medical Board?
2) Since you last registered have you surrendered such credential, or placed it into an inactive status, to avoid disciplinary action or in connection with or in anticipation of a disciplinary investigation/action by the licensing authority of such jurisdiction with the exception of the Kentucky Medical Board?
. . . .
5) Since you last registered have you voluntarily or involuntarily surrendered a medical or osteopathic license with the exception of your Kentucky license, or controlled substance registration certificate issued to you?
. . . .
10) Since you last registered have you entered a guilty plea, nolo contendere plea or Alford plea, or been convicted, of any felony offense or any misdemeanor offense in any court?
Dr. Garada stated that he had provided a written explanation for these questions under seal.
The Board considered Dr. Garada's application at a meeting on March 17, 2022. Dr. Garada was present and addressed the Board for 13 minutes, 10 minutes more than the Board had initially allowed. Ultimately, the Board voted to deny the application, and it entered a formal order a few days later. Therein, the Board noted it had reviewed information related to criminal actions (including a federal felony conviction for health care fraud) and various licensure actions in other states, and it summarized those records. Supporting denial, the Board found that Dr. Garada had engaged in conduct that violated Kentucky Revised Statutes (KRS) 311.595(4) ("Entered a guilty or nolo contendere plea, or been convicted, by any court within or without the Commonwealth of Kentucky of a crime as defined in KRS 335B.010, if in accordance with KRS Chapter 335B[.]") and (17) ("Had his license to practice medicine or osteopathy in any other state, territory, or foreign nation revoked, suspended, restricted, or limited or has been subjected to other disciplinary action by the licensing authority thereof. This subsection shall not require relitigation of the disciplinary action[.]").
Pursuant to KRS Chapter 13B, Dr. Garada appealed the Board's decision to the Jefferson Circuit Court, arguing that the Board's actions constituted an abuse of discretion, were beyond its delegated authority, and violated the procedures for disciplinary actions set forth in KRS 311.591 and KRS 311.555. He further asserted that the Board violated his due process rights based upon the records the Board reviewed (and, he claimed, misinterpreted), in limiting him to three minutes to address it without permitting him to engage in cross-examination or present rebuttal, and in not permitting him to remain in the room while the Board deliberated. He moved the court to waive court fees and costs due to his pending application for permanent disability, which the court granted. The Board denied the allegations, maintaining that it had properly exercised its discretion in denying the application. The parties filed briefs arguing their respective positions, and in an opinion and order entered October 5, 2022, the circuit court found no merit in Dr. Garada's due process or substantial evidence arguments and affirmed the Board's decision. This appeal, in which he raises the same issues, now follows.
In KRS 311.530 et seq., the General Assembly set forth the licensing requirements for the practice of medicine and osteopathy in the Commonwealth. It declared its public policy in KRS 311.555 as follows:
It is the declared policy of the General Assembly of Kentucky that the practice of medicine and osteopathy
should be regulated and controlled as provided in KRS 311.530 to 311.620 in order to prevent empiricism and to protect the health and safety of the public. Further, the General Assembly of Kentucky has created the board, as defined in KRS 311.530, to function as an independent board, the majority of whose members are licensed physicians, with the intent that such a peer group is best qualified to regulate, control and otherwise discipline the licensees who practice medicine and osteopathy within the Commonwealth of Kentucky.KRS 311.530 provides for the formation of a state board of medical licensure consisting of fifteen members, a majority of whom are required to be licensed physicians. KRS 311.565(1)(c) provides the Board with the power to "[i]ssue, deny, suspend, limit, restrict, and revoke any licenses or permits that may be issued by the board . . . in compliance with the provisions of KRS 311.530 to 311.620[.]"
KRS 311.593(2) permits any physician aggrieved by a final order of the Board related to licensing or disciplinary action to seek judicial review pursuant to KRS Chapter 13B. And in KRS 311.555, the General Assembly defined the applicable standard of review for the courts.
In furtherance of this intent, the judiciary of the Commonwealth of Kentucky, who may be caused to review the actions of the board, shall not interfere or enjoin the board's actions until all administrative remedies are exhausted, and modify, remand, or otherwise disturb those actions only in the event that the action of the board:
(1) Constitutes a clear abuse of its discretion;
(2) Is clearly beyond its legislative delegated authority; or
(3) Violated the procedure for disciplinary action as described in KRS 311.591.
This Court elaborated on the above standard in Parrish v. Kentucky Board of Medical Licensure, 145 S.W.3d 401, 408 (Ky. App. 2004), stating:
This statute essentially reiterates the tripartite test for arbitrariness to be applied in all cases of judicial review of an administrative agency's actions set forth in American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission[, 379 S.W.2d 450 (Ky. 1964)]. This tripartite test requires us to determine whether the agency exceeded its statutory powers, whether it employed proper procedures to provide adequate due process, and whether there is substantial evidence to support the agency's decision. So long as the Board's findings of fact are supported by substantial evidence, they are binding on the reviewing court, even if there is conflicting evidence in the record. However, matters of statutory construction are subject to de novo review. Because statutory interpretation is a matter of law reserved for the courts, we are not bound by the Board's interpretation.(Citations in footnotes omitted.) "Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Res. & Envtl. Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994).
Before we may reach the merits of Dr. Garada's appeal, we shall address the Board's argument that we should not review his claims due to the deficiencies in his brief or only review for manifest injustice or palpable error, citing Kentucky Rules of Appellate Procedure (RAP) 32 (addressing the organization and content of briefs) and Curty v. Norton Healthcare, Inc., 561 S.W.3d 374, 377-78 (Ky. App. 2018). We agree with the Board that Dr. Garada did not include adequate references to the record in either the statement of the case or the argument sections of his brief and that he failed to provide the required statement identifying how each issue was preserved for our review. RAP 32(A)(3) and (4). While RAP 31(H) provides for penalties, including that "[a] brief may be stricken for failure to substantially comply with the requirements of these rules[.]" we decline to impose any penalties, although we note that Dr. Garada's pro se brief is difficult to follow and understand.
Dr. Garada raises two arguments on appeal. The first is whether his due process rights were violated prior to the Board's denial of his application. And the second is whether the decision was based upon substantial evidence.
For the first argument, Dr. Garada contends that his due process rights were violated in only being able to speak for three minutes, not being permitted to engage in cross-examination or present any rebuttal, and not being permitted to be present when the Board considered his application. In other words, he believes that he was entitled to a full evidentiary hearing. We disagree.
First, we note that in KRS 311.571(9), the General Assembly has legislated that the Board may deny an application without an evidentiary hearing:
Notwithstanding any of the requirements for licensure established by subsections (1) to (8) of this section and after providing the applicant or reregistrant with reasonable notice of its intended action and after providing a reasonable opportunity to be heard, the board may deny licensure to an applicant or the reregistrant of an inactive license without a prior evidentiary hearing upon a finding that the applicant or reregistrant has violated any provision of KRS 311.595 or 311.597 or is otherwise unfit to practice. Orders denying licensure may be appealed pursuant to KRS 311.593.
This Court has held that the above subsection does not violate the applicant's procedural due process rights:
Dr. Abul-Ela next argues that KRS 311.571(8) [now (9)] violates his procedural due process rights by allowing the Board to deny his application without a hearing. Dr. Abul-Ela has a constitutionally protected interest in his professional license. DeSalle v. Wright, 969 F.2d 273, 277 (7th Cir. 1992). Therefore, he has a right to procedural due process before the Board may deny his application.
However, procedural due process does not always require a full-blown trial-type hearing. Kentucky Central Life Insurance Co. v. Stephens, 897 S.W.2d 583, 590 (Ky. 1995). To determine the sufficiency of due process provided in an administrative setting, the Kentucky Supreme Court adopted the three-prong analysis from Mathews v. Eldridge, 424 U.S. 319, 333-35, 96 S.Ct.
893, 902-03, 47 L.Ed.2d 18 (1976) in Division of Driver Licensing v. Bergmann, 740 S.W.2d 948, 951 (Ky. 1987). That test requires consideration of the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used; the probable value, if any, of additional or substitute procedural safeguards; and the government's interest that any additional procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903.
While the private interest in obtaining a license to practice medicine is substantial, the state has a compelling interest in providing its citizens with quality health care. KRS 311.571(8) [now (9)] satisfies sufficient due process guarantees by requiring the Board to provide the applicant with reasonable notice of its intended action and a reasonable opportunity to be heard. The risk, therefore, of erroneous deprivation of a license under KRS 311.571(8) [now (9)] is unlikely given its notice provisions. Finally, a more formal evidentiary hearing would not give Dr. Abul-Ela any greater protection. Consequently, we conclude that KRS 311.571(8) [now (9)] affords a medical licensure applicant with sufficient due process.
The central issue in this case concerns the adequacy of the due process which the Board provided in considering Dr. Abul-Ela's application. Due process includes, at a minimum, reasonable notice of Board's intended action and a meaningful opportunity to be heard. See Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970). As previously noted, KRS 311.571(8) [now (9)] requires the Board to provide both before it denies a license application.Abul-Ela v. Kentucky Bd. of Med. Licensure, 217 S.W.3d 246, 251 (Ky. App. 2006).
In the present case, Dr. Garada certainly had notice of the hearing as he attended it in person. Because the hearing was not a formal evidentiary hearing, there were no witnesses to cross-examine or rebuttal to offer, but the Board considered Dr. Garada's lengthy application and permitted him more than his allotted three minutes to provide any additional information to support his application. In addition, Dr. Garada did not have a right to be present while the Board deliberated on his application. See KRS 61.810(1)(j) (excepting from the open meeting requirement "[d]eliberations of judicial or quasi-judicial bodies regarding individual adjudications"). We find no violations of Dr. Garada's due process rights in the proceedings before the Board, and the circuit court properly rejected this argument.
Next, Dr. Garada argues that there was not substantial evidence to support the Board's decision to deny his application. Again, we disagree.
KRS 311.595 provides a list of bases upon which the Board may deny reregistration of a medical license. In this case, the Board specifically found proof under two subsections:
[T]he board may deny an application or reregistration for a license . . . upon proof that the licensee has:
. . .
(4) Entered a guilty or nolo contendere plea, or been convicted, by any court within or without the Commonwealth of Kentucky of
a crime as defined in KRS 335B.010, if in accordance with KRS Chapter 335B;
. . .
(17) Had his license to practice medicine or osteopathy in any other state, territory, or foreign nation revoked, suspended, restricted, or limited or has been subjected to other disciplinary action by the licensing authority thereof. This subsection shall not require relitigation of the disciplinary action[.]
The record contains substantial evidence to support these findings. In particular, Dr. Garada was convicted of federal health care fraud in 2004, for which he was sentenced to supervised release for three years in lieu of an 18-month prison sentence, he was ordered to pay restitution to Blue Cross & Blue Shield ($89,783.00) and Medicare ($101,198.43), and, by agreement, he was required to relinquish his medical licenses in all jurisdictions. Additionally, there is evidence of adverse action on his Ohio and West Virginia licenses when they were in effect, including complaints of inappropriate behavior by two female patients. We agree with the Board that it was well within its statutory authority to deny Dr. Garada's application to reregister his license based upon its review of his professional history and qualifications. Therefore, the circuit court properly held that the Board had not acted arbitrarily or abused its discretion in denying the application.
For the foregoing reasons, the opinion and order of the Jefferson Circuit Court upholding the Board's denial of Dr. Garada's application is affirmed.
ALL CONCUR.