Kansas State Bd. of Healing Arts v. Foote

• Decision Date: 27 January 1968
• Docket Number: No. 45089,45089
• Citation: 436 P.2d 828,200 Kan. 447,28 A.L.R.3d 472
• Parties: , 28 A.L.R.3d 472 The KANSAS STATE BOARD OF HEALING ARTS, Appellant, v. John J. FOOTE, M.D., Appellee.
• Court: Kansas Supreme Court

Page 828

436 P.2d 828

200 Kan. 447, 28 A.L.R.3d 472

The KANSAS STATE BOARD OF HEALING ARTS, Appellant, v. John J. FOOTE, M.D., Appellee.

No. 45089.

Supreme Court of Kansas.

Jan. 27, 1968.

Rehearing Denied Feb. 28, 1968.

Syllabus by the Court

1. A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority.

2. In reviewing a district court's judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it make the same review of the administrative tribunal's action as does the district court.

3. The board of healing arts may revoke a license to practice medicine and surgery on the basis of extreme incompetency.

4. The record in an appeal from a judgment of the district court setting aside an order by the board of healing arts revoking a license to practice medicine and surgery is examined and it is held: (1) The board's order of revocation was within the scope of its authority (2) it was substantially supported by evidence and (3) the board did not act fraudulently, arbitrarily or capriciously.

John Anderson, Jr., Olathe, argued the cause and was on the brief for appellant.

J. D. Lysaught, Kansas City, argued the cause, and James Mize, Salina, was with him on the brief for appellee.

HARMAN, Commissioner.

This is an appeal by the state board of healing arts from a district court judgment reversing the board's revocation of a medical license.

The background of the controversy is as follows:

Doctor John J. Foote, appellee herein, by virtue of endorsement from the state of Pennsylvania, held a license to practice medicine and surgery in this state. After becoming a resident of Beloit, Mitchell county, Kansas, he made application for membership as a surgeon on the medical staff of the Community Hospital of Beloit, a private corporation. The board of directors of that hospital rejected his application. Appellee then brought a mandamus action in the district court of Mitchell county to compel his admittance as a surgeon on the hospital's medical staff. That court sustained appellee's action and directed the hospital forthwith to admit appellee to its medical staff.

The hospital appealed that decision to this court, which reversed, directing that the hospital's motion for summary judgment be sustained (Foote v. Community Hospital of Beloit, 195 Kan. 385, 405 P.2d 423), thus terminating appellee's surgical practice in that hospital.

Pending determination of the foregoing appeal, and generally during the period from October 1, 1964, to September 21, 1965, appellee performed surgery in the hospital, which institution subsequently became the Mitchell County Hospital.

In formal complaint respecting that practice was made to the state board of healing arts as a result of which a board member reviewed the hospital files and records of appellee's cases.

Thereafter a formal complaint against appellee was filed with the board, alleging that he had been guilty of unprofessional conduct in the handling of certain surgery cases and asking that his license to practice medicine be revoked.

Hearing was had before the board, at the conclusion of which it found 'extreme incompetency by Dr. John J. Foote in the management of cases under his care and for such reasons, defendant has been guilty of unprofessional conduct' and revoked his license to practice medicine and surgery in Kansas.

Appellee appealed to the district court of Mitchell county, the appeal being presented on the complete record of the pleadings and evidence before the board; that court reversed the board's order of revocation, its ultimate ruling being summarized in the following:

'FINDINGS OF FACT

'(1) John J. Foote is not professionally incompetent and the record herein does not support the Board's finding of extreme incompetence. On the contrary, such finding is unreasonable, arbitrary, oppressive, and discriminatory.

'(2) John J. Foote is not guilty of unprofessional conduct and the finding by The Kansas State Board of Healing Arts that he is guilty of unprofessional conduct is contrary to and not supported by the evidence.

'CONCLUSIONS OF LAW

'(1) The order of The Kansas State Board of Healing Arts revoking John J. Foote's license to practice medicine herein is arbitrary, unreasonable, oppressive, and discriminatory and is null and void and beyond the authority of the Kansas State Board of Healing Arts.

'(2) The attempt by The Kansas State Board of Healing Arts herein to extend the term, 'unprofessional conduct' as used in the healing arts law, K.S.A. 65-2836 and K.S.A. 65-2837 to include negligence or malpractice based upon a charge of negligence is not within the powers of The Kansas State Board of Healing Arts.'

The trial court ordered appellee's license reinstated and the matter is now here on the board's appeal.

First, we should note the scope of judicial review of this type of proceeding.

Appeal to the district court from an order of the state board of healing arts in a revocation proceeding is authorized by K.S.A. 65-2848. Trial on such appeal is 'upon the issues joined and presented upon the evidence and exhibits introduced before the board, and certified by the secretary thereof.'

The board is composed of professional members from the three branches of healing arts: Medicine and surgery, osteopathy, and chiropractice (K.S.A. 65-2813). In the early case of Meffert v. Medical Board, 66 Kan. 710, 72 P. 247, 1 L.R.A.,N.S., 811, affirmed Meffert v. Packer, 195 U.S. 625, 25 S.Ct. 790, 49 L.Ed. 350, involving revocation of the license of a medical practitioner this court discussed the function of the predecessor board to our present one, saying,

'The board of medical registration and examination is not a judicial tribunal. While it may be said to act quasi judicially, it is only a ministerial board and performs no judicial functions. It is classed with such boards as the county boards of equalization, boards for the examination of applicants for teachers' certificates, city councils in granting and refusing a business or occupation license, and numerous other boards of similar character. Such boards perform to judicial functions, are not judicial tribunals, and have never been classed as such. (Citations).' (page 715, 72 P. page 249.)

Again speaking of the board of medical examination and registration in a revocation of license proceeding, this court in Brinkley v. Hassig, 130 Kan. 874, 879, 289 P. 64, pointed out that the board is an administrative body created under the police power of the state.

The business of licensing is regarded as an administrative function (Lira v. Billings, 196 Kan. 726, 414 P.2d 13).

Many of our cases define the scope of judicial review in administrative proceedings.

In Marks v. Frantz, 183 Kan. 47, 325 P.2d 368, we find this:

'2. While, in the nature of things, an administrative body, such as the optometry board, has wide discretion in determining its orders, such discretion cannot be abused and must actually be exercised reasonably in view of all of the facts and circumstances involved.

'3. Despite the fact an administrative body, such as the optometry board, cannot be the final judge of the reasonableness of its own orders, and despite the fact that courts are not permitted to substitute their judgment for that of such administrative body, nevertheless, courts are charged with the solemn duty of determining whether the procedure employed in reaching the decision, or whether the decision itself as rendered, is unreasonable, arbitrary or oppressive under all of the circumstances of each particular case.

'4. The true test of the validity of an order of an administrative body, such as the optometry board, revoking a license to practice the profession in this state, is whether the findings of the board are supported by competent and substantial evidence, and, further, whether, in view of all of the facts and circumstances of the case, the order of revocation is unreasonable, arbitrary or oppressive.' (Syl.)

Recent cases dealing with the scope of judicial review of administrative actions include Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P.2d 515; Boehm v. Board of County Commissioner, 194 Kan. 662, 400 P.2d 739; Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261; Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P.2d 906; see also cases in 1 Hatcher's Kansas Digest, rev. ed., Administrative Law, 1968 Supp. § 1, p. 12; 2 West's Kansas Digest, Administrative Law k751.

Rules firmly emerging from this line of authority may be summarized thus: A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal's action was within the scope of its authority.

The business of licensing being an administrative or legislative function, as distinguished from judicial, any other interpretation of K.S.A. 65-2848 casting a wider scope of review upon a district court would render that statute unconstitutional as a violation of the separation of powers doctrine and we decline to so interpret the appeal statute.

Constitutional grounds aside, an interpretation permitting a wider scope of review such as a de novo determination, would amount to virtual disregard of the specialized nature of the board and make it a mere way station en route to the seat of real authority-the particular district judge...