Gallien v. Ky. Bd. of Med. Licensure

• Decision Date: 25 March 2011
• Docket Number: No. 2009–CA–000694–MR.,2009–CA–000694–MR.
• Citation: 336 S.W.3d 924
• Parties: Wrenda B. GALLIEN, M.D., Appellant,v.KENTUCKY BOARD OF MEDICAL LICENSURE, Appellee.
• Court: Kentucky Court of Appeals

336 S.W.3d 924

Wrenda B. GALLIEN, M.D., Appellant,

v.KENTUCKY BOARD OF MEDICAL LICENSURE, Appellee.

No. 2009–CA–000694–MR.

Court of Appeals of Kentucky.

March 25, 2011.

J. Fox DeMoisey, Louisville, KY, for appellant.C. Lloyd Vest, II, General Counsel, Kentucky Board of Medical Licensure, Louisville, Kentucky, for appellee.Before CAPERTON and WINE, Judges; LAMBERT,¹ Senior Judge.

OPINION

LAMBERT, Senior Judge:

Wrenda B. Gallien, M.D., appeals from an order of the Jefferson Circuit Court dismissing her petition for judicial review of an adverse determination of the Kentucky Board of Medical Licensure. The single issue before us is whether the trial court correctly dismissed Appellant's petition because it had not been filed within the 30 days prescribed by statute. After our review, we hold that the court did not err in this respect. Thus, we affirm.

Facts and Procedural History

On July 30, 2004, the Kentucky Board of Medical Licensure, through its Inquiry Panel B, issued a Complaint and Emergency Order of Suspension against Appellant. The Complaint alleged that Appellant had been arrested for: (1) illegally prescribing and filling prescriptions for controlled substances; and (2) tampering with physical evidence. The Complaint further alleged that Appellant had failed to meet the standards of prevailing and acceptable medical practice in the areas of diagnosis, treatment, and records regarding her prescriptions of controlled substances. As a result of these accusations, Appellant's medical license was suspended and she was prohibited from practicing medicine until the matter was finally resolved.² Appellant did not challenge the Emergency Order of Suspension. The Complaint was referred to the Division of Administrative Hearings in the Office of the Attorney General, and an administrative hearing on the merits of the disciplinary charges was scheduled for January 11–13, 2005.

However, at Appellant's request (and without any objection by the Board), the administrative hearing was delayed several times because the criminal charges against Appellant had not been resolved.³ By January 2007, Appellant's medical license had been suspended for over 29 months. Thus, she was subject to the terms of KRS 311.604 because she had “not been engaged in the active practice of medicine for at least two (2) years.” KRS 311.604(1). Pursuant to this statute, the Board was empowered to order Appellant to “successfully complete a board-approved clinical competency examination or a board-approved clinical skills assessment program” at her own expense in order to determine whether she could “resume the practice of medicine without undue risk or danger to patients or the public.” Id.

Accordingly, Inquiry Panel B voted to order Appellant to submit to an assessment by the Center for Personalized Education for Physicians (CPEP) in order to determine her competency to practice medicine. However, the Panel also voted to permit Board counsel to negotiate an agreed order with Appellant in lieu of actually issuing an assessment order. Appellant was subsequently contacted and asked to enter into a proposed Interim Agreed Order. Under this order, Appellant would essentially waive her right to seek a hearing to challenge the Emergency Order of Suspension in exchange for the Board's agreement to waive the requirement that Appellant complete the clinical assessment set forth in KRS 311.604 while the criminal charges against Appellant were still pending. If Appellant wished to practice medicine again once the criminal charges were resolved, the interim order proposed a procedure in which Appellant would complete the clinical assessment before proceedings resumed on the pending disciplinary charges. However, Appellant declined to agree to the terms of the Interim Agreed Order, and instead indicated that she wished to “address the immediate issue of re-issuance of her licensure” if she was ultimately “successful” in the criminal proceeding.

The Board subsequently issued an Order to Complete Clinical Skills Assessment pursuant to KRS 311.604. This order specifically quoted KRS 311.604(2) in advising Appellant that failure to schedule the assessment with CPEP within 20 days would “constitute an admission that [she] is unable to practice medicine according to accepted and prevailing standards.” The order further provided, consistent with KRS 311.604(2): “The failure shall constitute a default and a final order may be entered without additional testimony or without presentation of additional evidence.” However, Appellant failed to schedule the assessment as ordered, and she provided the Board with no objections or other grounds for refusal to complete the assessment.

Consequently, on April 10, 2007, counsel for the Board wrote a letter to Appellant advising her that Inquiry Panel B would meet on April 19, 2007, to consider her case. This letter included an attached memorandum to the Board from counsel recommending that the Board “take appropriate action” because of Appellant's failure to comply with the Order to Complete Clinical Skills Assessment. Neither Appellant nor her attorney filed a response to this letter or anything to be considered by the Panel.

Hence, on April 25, 2007, the Board (through Inquiry Panel B) issued an Order of Suspension that suspended Appellant's medical license “indefinitely ... until further Order of the Panel,” and prohibited Appellant from engaging in any act that would constitute the “practice of medicine” as defined by KRS 311.550(10) until approval by the Board. The Order of Suspension summarized the parties' previous efforts to resolve the assessment issue and included the following justification for the Panel's decision:

5. By failing to comply with the Order to Complete Clinical Skills Assessment, the licensee has admitted that she is unable to practice medicine according to accepted and prevailing standards of care by reason of an extended absence from the active practice of medicine, in violation of KRS 311.595(8).

6. Pursuant to KRS 311.604, the Panel may take the failure to complete the assessment as order [sic] as a default and may issue a Final Order without the taking of testimony or presentation of evidence.

The Order of Suspension also contained a section entitled, “EFFECTIVE DATE AND APPEAL RIGHTS,” which expressly provided that Appellant had the right to “appeal from this Order, pursuant to KRS 311.593 and 13B.140–150, by filing a Petition for Judicial Review in Jefferson Circuit Court within thirty (30) days after this Order is mailed or delivered by personal service.” The order also contained additional instructions as to how the petition should be prepared and mailed.

Despite this language, Appellant failed to take any further action until February 12, 2008—nearly 10 months later—when her attorney asked Inquiry Panel B via letter to dismiss its Complaint without prejudice and to vacate the Order of Suspension because Appellant wished to retire with a “clean record.” When the Panel refused to do so, Appellant tendered a Motion to Strike the Order of Suspension.⁴ However, the Panel refused to accept the motion for filing on the grounds that it was unauthorized by statute because Appellant's case had been resolved in its entirety by the Order of Suspension and Appellant's failure to appeal from that order. Appellant then asked the hearing officer originally assigned to the Complaint to intercede, and on April 2, 2008, the hearing officer issued an Order Clarifying the Record in This Administrative Action that found, without citing to any authority, that the Order of Suspension was not a final order and that the issues and orders relating to Appellant's failure to participate in the CPEP assessment had nothing to do with the original Complaint and Emergency Order of Suspension. Thus, separation of those matters was procedurally necessary.

On April 21, 2008, Inquiry Panel B issued an Order Dismissing Remaining Charges in Complaint, Without Prejudice. That order provided:

In light of the Panel's resolution of this matter by final Order of Suspension issued on April 25, 2007, which was not appealed, it is not presently necessary to resolve the remaining charges in the Complaint alleging violations of KRS 311.595(4) and (9), as illustrated by KRS 311.597(1) and (4). Accordingly, the Panel ORDERS that the remainder of Complaint No. 959, relating to the charged violations of KRS 311.595(4) and (9), as illustrated by KRS 311.597(1) and (4), is hereby DISMISSED, WITHOUT PREJUDICE. Accordingly, further administrative proceedings on Complaint No. 959 are terminated upon the filing of this Order[.]

Thus, the hearing officer's conclusions notwithstanding, the Panel considered the Order of Suspension to have been a final order that eliminated the need to consider the disciplinary charges pending in the Complaint. The order further provided that Appellant would be afforded future opportunities to demonstrate that she could return to medicine, but that such a demonstration would require, at a minimum, successful completion of the CPEP assessment. The order also left open the question of whether it would be necessary to address the charged violations of KRS 311.595 in the event that Appellant was permitted to resume practicing medicine.⁵

On August 18, 2008, Appellant filed a petition for judicial review and a declaratory judgment action against the Board in Jefferson Circuit Court. Appellant specifically asserted that KRS 311.604 was unconstitutional and that she had been deprived of her procedural due process rights during the course of her dealings with the Board. The Board responded with a motion to dismiss Appellant's petition on the grounds that it had not been timely filed within 30 days of the mailing of the Order of Suspension, as required by KRS 311.593 and KRS 13B.140(1). The circuit court agreed with the Board and entered an Opinion and Order dismissing Appellant's action. This appeal...