Ex Parte Medical Licensure Com'n of Alabama

• Decision Date: 09 May 2008
• Docket Number: 2070245.
• Citation: 13 So.3d 397
• Parties: Ex parte MEDICAL LICENSURE COMMISSION OF ALABAMA. In re David G. Morrison, M.D. v. Jerry N. Gurley, M.D., in his official capacity as Chairman of the Medical Licensure Commission of Alabama.
• Court: Alabama Court of Civil Appeals

13 So.3d 397

Ex parte MEDICAL LICENSURE COMMISSION OF ALABAMA.

In re David G. Morrison, M.D. v. Jerry N. Gurley, M.D., in his official capacity as Chairman of the Medical Licensure Commission of Alabama.

2070245.

Court of Civil Appeals of Alabama.

May 9, 2008.

Troy King, atty. gen., and Benjamin H. Albritton, asst. atty. gen., for petitioner Medical Licensure Commission of Alabama.

Frank M. Wilson, Montgomery; and James S. Ward of Ward & Wilson, LLC, Birmingham, for respondent David G. Morrison, M.D.

Donald R. Jones, Jr., Montgomery, for respondents/intervenors Carmen McInroy, Sandra Horn, Sonja Taylor, Scott Gulley, Richard A. Fitzgerald, and Marie Hoffman.

On Application for Rehearing

THOMAS, Judge.

The opinion of this court issued on March 21, 2008, is withdrawn, and the following opinion is substituted therefor.

In 2005 and 2006, the Alabama Board of Medical Examiners filed administrative complaints with the Medical Licensure Commission of Alabama ("the Commission") against Dr. David G. Morrison, a hematologist-oncologist, charging Dr. Morrison with practicing medicine in such a manner as to endanger the health of patients, in violation of § 34-24-360(3), Ala. Code 1975; using untruthful, deceptive, or improbable statements concerning the effects or results of proposed treatment, in violation of § 34-24-360(7), Ala.Code 1975; gross malpractice, repeated malpractice, or gross negligence in the practice of medicine, in violation of § 34-24-360(9), Ala. Code 1975; performing unnecessary medical services, in violation of § 34-24-360(11), Ala.Code 1975; and being unable to practice medicine with reasonable skill and safety to patients by reason of a demonstrated lack of basic knowledge or clinical competency, in violation of § 34-24-360(20), Ala.Code 1975.

On October 24, 2007, following 8 days of hearings over a 2-month period, the Commission issued a 93-page order containing detailed findings of fact and conclusions of law. The Commission determined that Dr. Morrison was guilty of all charges, revoked his license to practice medicine, and assessed an administrative fine of $266,0000 against him.

On October 29, 2007, Dr. Morrison appealed to the Montgomery Circuit Court and moved that court to stay the revocation of his license during the pendency of the appeal. On November 19, 2007, the circuit court conducted an evidentiary hearing on the motion for a stay. On November 27, 2007, the circuit court issued a stay of the order revoking Dr. Morrison's license.

On December 20, 2007, the Commission petitioned this court to issue a writ of mandamus directing the circuit court to vacate its stay order. The Commission argues that it is entitled to mandamus relief because, it says, Dr. Morrison did not establish any of the grounds set out in the applicable statute governing the stay of an order revoking a medical license.

Judicial review of final decisions by the Commission is governed generally by § 41-22-20, Ala.Code 1975, a part of the Alabama Administrative Procedure Act ("AAPA"). See § 34-24-367, Ala.Code 1975. With respect to the revocation of a license, § 41-22-20(c) provides:

"The filing of the notice of appeal ... does not itself stay enforcement of the agency decision. If the agency decision has the effect of suspending or revoking a license, a stay or supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the reviewing court, upon petition of the agency, determines that a stay or supersedeas would constitute a probable danger to the public health, safety, or welfare."

(Emphasis added.) Pursuant to § 41-22-20(c), there is an implied presumption that staying a license revocation will not jeopardize the public health, safety, or welfare. If the agency seeks to prevent the issuance of a stay, it must rebut that presumption by establishing that a stay would "constitute a probable danger to the public health, safety, or welfare."

The Alabama legislature has provided that when the Commission revokes a physician's license to practice medicine, however, a different presumption arises. Section 34-24-367 states that the Commission's revocation of a license to practice medicine creates a presumption that the physician's continued practice would create an immediate danger to the public health, safety, and welfare. Section 34-24-367 provides, in pertinent part:

"Judicial review of the orders and decisions of the Medical Licensure Commission shall be governed by the provisions of Section 41-22-20 (the Alabama Administrative Procedure Act); provided however, that the following procedures shall take precedence over the provisions of Section 41-22-20(c) relating to the issuance of a stay of any order of the licensure commission suspending or revoking a license to practice medicine. The suspension or revocation of a license to practice medicine shall be given immediate effect, it being the expressly stated legislative purpose and intent that the imposition of the penalty of suspension or revocation of a license to practice medicine shall create a presumption that the continuation in practice of the physician constitutes an immediate danger to the public health, safety and welfare."

Section 34-24-367 further provides:

"No stay or supersedeas shall be granted pending judicial review of a decision by the licensure commission to suspend or revoke a license to practice medicine unless a reviewing court, upon proof by the party seeking judicial review, finds in writing that the action of the licensure commission was taken without statutory authority, was arbitrary or capricious, or constituted a gross abuse of discretion."

At the outset of the evidentiary hearing on Dr. Morrison's motion to stay the Commission's order, Dr. Morrison's counsel informed the circuit court that he intended to present the testimony of several physicians who had referred patients to Dr. Morrison, who thought that those patients had received excellent care from Dr. Morrison, and who believed that allowing Dr. Morrison to practice medicine during the pendency of his appeal would not present a danger to the public health, safety, and welfare. The Commission's counsel responded:

"Under the law there is a presumption that a doctor is dangerous to the public safety, health, and welfare once a revocation is entered. The only way that they can get ... a[] ... stay — and the law is very clear, it says, `No stay shall be granted unless a review[ing] court, upon proof [by] the party seeking judicial review, finds in writing that the action of the Licensure Commission was taken without statutory authority, was arbitrary and capricious, or constitutes a gross abuse of discretion.'

"Whether or not he's a danger to the public is already decided. They can't bring in witnesses to say he's not a danger. That's our position. We're going to object to any witness that would testify to anything other than whether the Commission's order was taken without statutory authority, was arbitrary or capricious, or constitutes a gross abuse of discretion."

In reply, Dr. Morrison's counsel stated: "We have challenged the constitutionality of [§ 34-24-367] because the criteria ... the legislature is requiring [for granting a stay] is exactly the same criteria ... require[d] [for reversal of the revocation] on final [judicial] review." The following exchange then occurred:

"MR. WARD [counsel for Dr. Morrison]: ... [I]t's impossible for us today — you don't even have the record before you yet. You haven't — that hasn't been filed with you yet. It is a couple thousand pages long. And in order for you to decide whether something is arbitrary or capricious, it's going to require a review of the whole record.

"So in essence, what it means is Dr. Morrison doesn't have a right [to a stay] in this court, according to the statute, because we cannot show today what we need to show.

"THE COURT: Well, Mr. Albritton [counsel for the Commission], if the record is not available, how in the world am I going to review and determine whether or not the ... decision is arbitrary and capricious?

"MR. ALBRITTON: Well, [Dr. Morrison] can put on evidence of arbitrar[iness] and capriciousness.

"THE COURT: I don't have the record to review whether or not the ruling is arbitrary and capricious.

"MR. ALBRITTON: You do have the ruling itself, Your Honor.

"THE COURT: But I don't have what was presented [to the Commission]."

Over the objection of the Commission, the circuit court allowed Dr. Morrison to present nine witnesses whose testimony indicated that allowing Dr. Morrison to practice medicine during the pendency of the appeal would not endanger the public health, safety, or welfare and, furthermore, that not allowing him to practice during the pendency of the appeal would detrimentally affect the health, safety, and welfare of his patients. Seven physicians, who had either referred patients to Dr. Morrison or stated that they were otherwise acquainted with the level of Dr. Morrison's medical competency, testified. One of Dr. Morrison's patients testified. The regional director of the Montgomery and Prattville clinics for the Southeast Cancer Network testified. That witness stated that Dr. Morrison had 320 active cancer patients and that he was scheduled to see 600 to 700 patients in the next 2 weeks. The Commission presented the 93-page order revoking Dr. Morrison's license and called no witnesses.

The circuit court's November 27, 2007, order granting the stay states, in pertinent part:

"After careful consideration of th[e] evidence, and after review of the written materials, the Court finds as follows:

"1. It is undisputed that as of the time this matter was called for hearing, the transcript, evidentiary materials, and remainder of the record before the Medical Licensure Commission had not been filed with the Court. The parties have indicated that the record of testimony exceeds 2,100 pages and that there are more than 2,000 pages of...