Board of Medical Registration and Examination v. Stidd
Citation | 177 Ind.App. 21,377 N.E.2d 896 |
Decision Date | 28 June 1978 |
Docket Number | No. 2-875A205,2-875A205 |
Parties | BOARD OF MEDICAL REGISTRATION AND EXAMINATION of Indiana, and Merritt O. Alcorn, William N. Horst, Malcolm O. Scamahorn, Richard W. Woolery, as Members of said Board, Appellants, v. Raymond E. STIDD, D.P.M., Appellee. |
Court | Indiana Appellate Court |
Ronald S. Lieber, Indianapolis, for appellee.
Dr. Raymond E. Stidd (Stidd), a podiatrist, filed in the court below his petition for judicial review (pursuant to the Administrative Adjudication and Judicial Review Act of 1947, as amended, being Chapter 4-22-1 of the Indiana Code of 1971) of a decision of the Board of Medical Registration and Examination of Indiana (board) 1 suspending Stidd's license to practice podiatry for a period of six months. Stidd also requested a stay of the suspension pending review, which was granted.
After reviewing the transcript of the proceedings before the board the court rendered the following decision:
a) The evidence in the record is not of such substantial reliable and probative value as to support the decision of the Board.
b) The Motion to Dismiss the charges made by the Petitioner at the conclusion of the State's evidence should have been sustained.
The board's motion to correct errors (which was overruled) and its appellants' brief assert reviewing court error (1) in granting the stay; (2) in considering evidence outside the record; (3) in that the decision is contrary to the evidence and the law; and (4) if the court was correct in finding reversible board error, in not remanding the case to the board.
The board's contention that the reviewing court was without authority to stay the suspension of Stidd's license is based on its interpretation of Ind.Code § 4-22-1-17 which is a section of Administrative Adjudication and Judicial Review Act of 1947 and on Ind.Code § 25-22-1-4, a part of the Medical Practice Act. The first statute reads in part:
Ind.Ann.Stat. § 25-22-1-4 (Burns Code Ed., 1974), in effect at the time of the judicial review of this cause but since repealed by Acts of 1975, P.L. 271, does indeed provide that "During the pendency of such appeal, the accused shall not be entitled to practice by virtue of such license." However, that statute was part of the Medical Practice Act, originally adopted in 1897, and applies to licenses issued and suspended under that Act, i. e., for "the practice of medicine, surgery or obstetrics." Whether the practice of podiatry was at any time subject to that Act is not a question we need decide 3 since the practice of podiatry has been separately regulated ever since the enactment of Acts of 1925, Chapter 8, now Chap. 25-29-1 of the Indiana Code.
Chapter 8 of the Acts of 1925 is described by its title, in part, as "An act regulating the practice of podiatry . . . ." It creates a five member board of podiatry examiners to examine qualified applicants and issue licenses to those who pass such examination. That board, however, cannot suspend, revoke, or refuse to renew the licenses it issues. By section six of the act (IC § 25-29-1-6) that power is given to the board of medical registration and examination. When this case was judicially reviewed 4 that section read:
(Acts 1925, ch. 8, § 6, p. 15.)
The state board of medical registration and examination has the power to suspend both physicians' and podiatrists' licenses, but the above statute contains nothing to suggest any legislative intent to apply to an "appeal" from the suspension or revocation of a podiatrist's license the same provisions and restrictions which the Medical Practice Act imposes upon "appeals" from suspensions and revocations of physicians' licenses. And the above statute is the only part of the Podiatry Act which mentions court review. The conclusion is inescapable that the Podiatry Act does not preclude a stay by the court pending judicial review. We believe this also satisfies the provisions in the second paragraph of § 4-22-1-17 (quoted above) of the Administrative Adjudication and Judicial Review Act in that it impliedly "permits a staying of the action of the agency by court order pending judicial review". We see no error in the stay of the suspension pending judicial review.
The board contends that in contravention of the provisions of the Administrative Adjudication and Judicial Review Act, IC § 4-22-1-18, the reviewing court considered evidence outside the record made before the board. ("On such judicial review such court shall not try or determine said cause de novo, but the facts shall be considered and determined exclusively upon the record filed with said court pursuant to this act.") Unfortunately the board's written argument fails to substantiate that contention. However, Dr. Stidd's brief in this court (to which no reply brief was filed by the board) does make a denial-of-equal-protection-of-the-law argument which does go outside the record in asserting...
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