Hansa Ctr. for Optimum Health, LLC v. State, 113,986.
| Decision Date | 04 March 2016 |
| Docket Number | No. 113,986.,113,986. |
| Citation | 369 P.3d 977,52 Kan.App.2d 503 |
| Parties | HANSA CENTER FOR OPTIMUM HEALTH, LLC, Appellant, v. STATE of Kansas; Kansas Board of Healing Arts ; Joe Tatrn, in his Official Capacity as Investigator of the Kansas Board for the Healing Arts; Kathleen Selzler Lippert, in Her Official Capacity as Executive Director of the Kansas Board for the Healing Arts, Appellees. |
| Court | Kansas Court of Appeals |
Jacques G. Simon, of Merrick, New York, and Gregory P. Forney, of Shaffer Lombardo Shurin, of Kansas City, Missouri, for appellant.
Joshana L. Offenbach and Stacy R. Bond, of Kansas State Board of Healing Arts, for appellee.
Before PIERRON, P.J., BRUNS and GARDNER, JJ.
The Hansa Center for Optimum Health, LLC, appeals from the district court's decision denying its petition to revoke an administrative subpoena issued by the Kansas State Board of Healing Arts. On appeal, the appellant contends that the district court erred as a matter of law in denying its petition. In particular, it argues that the Board of Healing Arts exceeded the scope of its authority under the Kansas Healing Arts Act, K.S.A. 65–2801 et seq. , when it issued the administrative subpoena. Because we conclude that the Board of Healing Arts did not exceed the scope of its authority, we affirm.
David Robert Jowdy, D.C., a chiropractor licensed to practice in the state of Kansas, works at Hansa Center for Optimum Health, LLC, in Wichita. The nature of the relationship between Hansa Center for Optimum Health, LLC, and Dr. Jowdy is unclear from the record. Moreover, Dr. Jowdy is not a party to this appeal.
On April 4, 2014, Nils Nilsen filed a small claims petition in Sedgwick County naming Dr. Jowdy and "Hansa Center" as defendants. In the petition, Nilsen alleged under penalty of perjury that he received "detoxification treatments (sauna and footbaths) at Hansa Center [and] was not given mineral replenishment." Further, Nilsen alleged that he "had to go to [the] emergency [room] and stay in [a] hospital two times because sodium in [his] blood was too low." As a result, Nilsen sought to recover $4,000 in monetary damages plus interest.
Although the record of the small claims action is sparse, it appears that on May 8, 2014, a bench trial was held. The journal entry reflects that Nilsen and Dr. Jowdy appeared at the trial in person. Moreover, the journal entry indicates that Dr. David Jernigan appeared as "president" of Hansa Center. It is impossible to know what occurred during the trial because there is no transcript of the proceedings. Nevertheless, the journal entry states that the trial judge denied Nilsen's claim because there was "[n]ot sufficient proof connecting plaintiff's subsequent condition with defendant's prior treatment and services."
On September 4, 2014, the associate disciplinary counsel for the Board of Healing Arts sent a letter to Dr. Jowdy stating that the Kansas Health Care Stabilization Fund had sent the Board the small claims petition filed by Nilsen. In the letter, the disciplinary counsel stated that the petition "lists allegations of substandard care" by Dr. Jowdy. The letter requested a narrative summary from Dr. Jowdy or his attorney explaining the care and treatment he had provided to Nilsen. In addition, the letter requested any applicable medical records related to Nilsen's claim. The letter also stated that although the Board was treating the petition as a "complaint" against Dr. Jowdy, the "matter has not been opened into an investigation at this point and does not need to be reported to licensing agencies as an investigation."
On September 11, 2014, Eldon L. Boisseau—who was licensed to practice law in the state of Kansas at the time—sent a letter to the Board of Healing Arts in which he enclosed a copy of the small claims petition as well as a copy of the journal entry granting judgement in favor of the defendants. The letter, however, did not include a copy of Nilsen's medical records nor did it include a narrative summary as requested by the Board of Healing Arts. In a follow-up letter to the Board of Healing Arts dated September 15, 2014, Boisseau stated that he believed Dr. Jowdy had "complied with K.S.A. 40–3409 concerning what should be furnished to the [Board] under these circumstances."
On October 2, 2014, a special investigator for the Board of Healing Arts sent a letter to Dr. Jowdy stating that he still needed "to provide a complete written narrative statement concerning the specific allegations" as well as "any information that is relevant to the standard(s) of care and/or other allegations within the malpractice action." Unlike the letter dated September 4, 2014, this letter specifically referred to the matter as an "investigation" and included a Board of Healing Arts case number rather than simply a complaint number.
Also on October 2, 2014, Kathleen Selzler Lippert—the Executive Director of the Board of Healing Arts—issued a subpoena duces tecum to "Hansa Center, 12219 East Central[,] Wichita, KS 67206." The administrative subpoena listed the Board's case number and listed K.S.A. 65–2839a as the statute authorizing its issuance. Specifically, the subpoena commanded the production of medical records—including notes and correspondence—pertaining to Nilsen's "detoxification treatment and care by David Robert Jowdy, DC." The return date listed on the subpoena was October 17, 2014.
In response, Boisseau sent a letter to the Board of Healing Arts dated October 7, 2014, in which he indicated that he was representing "Hansa Center and Dr. David R. Jowdy, D.C." Boisseau asserted that he had "provided what the Board of Healing Arts was entitled based on the statute" and was "refus[ing] to comply with [the] subpoena unless you can produce a complaint filed by Mr. Nilsen regarding his treatment ... or some other legal authority for [the Board's] request." Further, Boisseau stated that if the Board "persists in seeking these records without legal authority, [he would] file an action in the Third Judicial District, Shawnee County, Kansas District Court to quash any such efforts."
Additionally, Jacques G. Simon—an attorney licensed in the state of New York and several other states—sent a letter on behalf of Dr. Jowdy to the Board of Healing Arts' special investigator dated October 17, 2014. In the letter, Simon asserts that the Board did not have the authority to ask for "a narrative relating to any malpractice action." The letter was evidently delivered by Gregory Forney—who is an attorney licensed in the state of Kansas—along with a cover letter also dated October 17, 2014, indicating that he was serving as Dr. Jowdy's local counsel. Interestingly, although Simon and Forney represent Hansa Center for Optimum Health, LLC, in this case, the limited liability company is not mentioned in either of their letters.
On November 6, 2014, Forney filed a "Petition Pursuant to K.S.A. § 65–2839a(b)(3)(B) for an Order Revoking Administrative Subpoena" in Shawnee County District Court on behalf of Hansa Center for Optimum Health, LLC. At the same time, the limited liability company also filed a motion seeking to revoke the administrative subpoena dated October 2, 2014. In response, the Board of Healing Arts filed both an answer and a motion to dismiss on December 4, 2014.
On March 23, 2015, the district court held a hearing on the petition as well as on the motion to dismiss. At the hearing, no witnesses were presented and no exhibits were admitted into evidence. Rather, counsel for the parties offered argument on their respective positions. After hearing the parties' arguments, the district court took a recess before announcing its decision to deny the request to revoke the administrative subpoena. Subsequently, on May 8, 2015, the district court entered a journal entry denying the relief requested by Hansa Center for Optimum Health, LLC, and dismissing the petition.
On appeal, Hansa Center for Optimum Health, LLC, contends that the Board of Healing Arts exceeded its authority in issuing the administrative subpoena seeking medical records pertaining to Dr. Jowdy's care and treatment of Nilsen. Further, the appellant argues that the district court erred as a matter of law in dismissing the petition and by failing to quash the subpoena. In response, the Board of Healing Arts contends that the district court properly dismissed the petition and appropriately refused to quash the subpoena.
Whether the Board of Healing Arts has exceeded its statutory authority in issuing the administrative subpoena to the appellant requires interpretation of the Kansas Healing Arts Act (Act), K.S.A. 65–2801 et seq. This presents a question of law subject to unlimited review by this court. Similarly, whether the district court erred in interpreting the Act requires statutory interpretation and is also subject to unlimited review. See Ryser v. State, 295 Kan. 452, 464, 284 P.3d 337 (2012). However, "the enforcement of a subpoena duces tecum is left to the discretion of the enforcing tribunal." In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 255, 891 P.2d 422 (1995) ; see also State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010) ().
The Kansas Supreme Court has held that there are "more ‘relaxed’ standards of relevancy in the context of administrative investigations as compared to the ‘stringent’ relevancy requirement of K.S.A. 60–245(b) for purposes of litigation." (Emphasis added.) Collingwood Grain, Inc., 257 Kan. at 255, 891 P.2d 422 ; see also Atchison, T. & S.F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 918, 529 P.2d 666 (1974) (). Specifically, our Supreme Court has found that "administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to...
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