Fieser v. Kansas State Bd. of Healing Arts

• Decision Date: 17 March 2006
• Docket Number: No. 94,203.,94,203.
• Citation: 130 P.3d 555
• Parties: Merle J. FIESER, M.D., Appellee, v. KANSAS STATE BOARD OF HEALING ARTS, Appellant.
• Court: Kansas Supreme Court

Page 555

130 P.3d 555

Merle J. FIESER, M.D., Appellee, v. KANSAS STATE BOARD OF HEALING ARTS, Appellant.

No. 94,203.

Supreme Court of Kansas.

March 17, 2006.

Mark W. Stafford, general counsel, Kansas Board of Healing Arts, argued the cause and was on the brief for appellant.

Brian C. Wright, of Law Office of Brian C. Wright, of Great Bend, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This is an appeal involving a final order of the Kansas Board of Healing Arts (Board) revoking Merle J. Fieser's license to practice medicine. The district court reversed the Board's order, and the case was transferred from the Court of Appeals to this court pursuant to K.S.A. 20-3018(c).

We must decide whether the Board correctly interpreted K.S.A. 65-2837(a)(2) when it concluded that Fieser was professionally incompetent without requiring proof that her deviations from the applicable standard of care proximately caused patient injury. The district judge rejected the Board's interpretation.

A Kansas doctor's license may be revoked if the "licensee has committed an act of unprofessional or dishonorable conduct or professional incompetency." K.S.A. 65-2836(b). K.S.A. 65-2837(a)(2) defines "professional incompetency" as, among other things, "[r]epeated instances involving failure to adhere to the applicable standard of care to a degree which constitutes ordinary negligence, as determined by the [B]oard." In this case, Fieser failed to adhere to the applicable standard of care in 8 out of the 10 instances cited in the initial petition.

After several days of hearings, the Presiding Officer rejected Fieser's effort to dismiss the action, concluding that, under K.S.A. 65-2837(a)(2), "a failure to adhere to the applicable standard of care . . . constitutes ordinary negligence. This negligence is a breach of duty imposed upon a licensee. . . . Injury need not be shown in order for the Board to proceed under K.S.A. 65-2836 and K.S.A. 65-2837." Fieser's conduct, according to the Presiding Officer, "constitute[d] professional incompetency as defined at K.S.A. 65-2837(a)(2)." Further, Fieser's license should be revoked, in view of the Board's purpose to protect the public from "unprofessional, improper, unauthorized, and unqualified practice of the healing arts."

The Board reviewed the Presiding Officer's decision and issued a final order adopting his findings and conclusions. The Board also specifically denied Fieser's request for a stay during judicial review, finding there was a "substantial threat to the public health and welfare" from Fieser's continued practice. According to the Board, despite the absence of proof in the hearings, there had been injury to at least four of the patients whose treatment by Fieser formed the basis of the petition. We also note that Fieser had admitted her failures to adhere to the standard of care at the hearing and had conceded that one patient was injured as a result.

The district judge rejected the Board's argument that its interpretation of the statute was entitled to deference under the doctrine of operative construction. Exercising de novo review, the judge accepted Fieser's argument that the statute's reference to "ordinary negligence" meant "actionable negligence," i.e., a deviation from the applicable standard of care plus proximate cause of injury to a patient. The district court then reversed the Board's order of revocation. This appeal followed.

Standard of Review

Although this case involved an administrative agency's interpretation of a statute in the first instance, we hold that the correct standard of review for this appeal is de novo. We are called upon to interpret K.S.A. 65-2837(a)(2) and apply it to undisputed facts. Interpretation of a statute raises a question of law subject to unlimited appellate review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). Under the doctrine of operative construction, an administrative agency's interpretation of a statute it is charged with enforcing is entitled to judicial deference in certain circumstances. See, e.g., Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 809, 667 P.2d 306 (1983) (quoting Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 607, 371 P.2d 134 [1962] ("`[T]he operative interpretation given thereto by the officers and official boards whose duties are to carry the legislative policy into effect is helpful, and may be entitled to controlling significance . . . in judicial proceedings.'")); State v. Helgerson, 212 Kan. 412, 413, 511 P.2d 221 (1973) ("This court has long given great weight under the doctrine of operative construction to the interpretation of a statute by the administrative body charged with enforcing the statute"). However, "[t]he final construction of a statute [always] rests within the courts." In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 842, 877 P.2d 437 (1994); see also Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 420, 109 P.3d 1241 (2005) (judicial deference to agency's legal rule not compelled when law under examination not regulation promulgated by agency). The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., under which this appeal arises, permitted the district court and would permit us to grant relief from the Board's ruling if we discern that the Board "erroneously interpreted or applied the law." K.S.A. 77-621(c)(4).

Analysis

K.S.A. 65-2837(a) is contained in the Kansas Healing Arts Act, K.S.A. 65-2801 et seq. The statute reads in pertinent part:

"(a) `Professional incompetency' means:

(1) One or more instances involving failure to adhere to the applicable standard of care to a degree which constitutes gross negligence, as determined by the board.

(2) Repeated instances involving failure to adhere to the applicable standard of care to a degree which constitutes ordinary negligence, as determined by the board."

The Board relied on K.S.A. 65-2837(a)(2) to revoke Fieser's license. Fieser argues that the word "negligence" as used in that subsection requires proof of all four of the elements that make the tort of negligence actionable: (1) the existence of a duty, (2) an act or omission in breach of that duty, (3) proximate cause, and (4) an injury. See, e.g., South v. McCarter 280 Kan. 85, 94, 119 P.3d 1 (2005) (quoting Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert. denied 525 U.S. 964, 119 S.Ct. 409, 142 L.Ed.2d 332 [1998]) (setting forth the elements of a negligence cause of action). In her view, the Board's reading of the word "negligence" to include only the existence of a duty and an act or omission in breach of that duty is unsupported by the purpose of the Healing Arts Act. The Act's goal is protection of the public, she argues, and "there is no damage done to the public by a physician whose non-standard care does not cause injury."

Fieser relies on Rogers v. Shanahan, 221 Kan. 221, 223-24, 565 P.2d 1384 (1976), which recites the presumption that "the legislature intend[s] a different meaning when it use[s] different language in the same connection in different parts of [a] statute." This presumption is violated, she argues, if the phrase "failure to adhere to the applicable standard of care" and "negligence" are synonymous.

The Board maintains that the statute does not require it to put on evidence of all of the elements a plaintiff must prove in a civil action for damages caused by negligence. Rather, the statute requires only proof of repeated instances in which the licensee deviated from the applicable standard of care. Requiring more, the Board says, would run contrary to the Act's purpose to protect the public from incompetent licensees.

When interpreting a statute, a court strives to give effect to the intent of the legislature. The legislature is presumed to have expressed its intent through its language; and, when that language is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. An appellate court may not speculate as to the legislative intent behind the language, and it will not read into a clear statute language not readily found within it. See State v. Marsh, 278 Kan. 520, 537, 102 P.3d 445 (2004). There is no need to resort to canons of statutory construction if the text of a statute is clear. See State v. Sodders, 255 Kan. 79, Syl. ¶ 4, 872 P.2d 736 (1994).

Black's Law Dictionary defines "negligence" as "[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. . . . The term denotes culpable carelessness." Black's Law Dictionary 1061 (8th ed.2004). In short, the word "negligence," standing alone, refers to only two of the four elements required in a civil action for damages caused by negligence. Those two elements are: (1) the existence of a duty and (2) an act or omission in breach of that duty. Kansas decisions also use "negligence" or "negligent act" to mean duty and breach. See Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601, 615, 124 P.3d 74 (2005); Natalini v. Little, 278 Kan. 140, 143-46, 92 P.3d 567 (2004); Nold v. Binyon, 272 Kan. 87, Syl. ¶ 5, 31 P.3d 274 (2001).

In the medical context, the duty of a doctor to a patient is known as "the applicable standard of care," and the concept of breach is expressed as "deviation from the applicable standard of care" or "failure to adhere to the applicable standard of care." See, e.g., Dawson v. Prager, 276 Kan. 373, 375, 76 P.3d 1036 (2003).

Fieser is correct that the legislature equated the phrase "failure to adhere to the applicable standard of care" with "negligence...