Kaminsky v. Medical Licensing Bd. of Indiana
| Decision Date | 11 August 1987 |
| Docket Number | No. 1-785-A-188,1-785-A-188 |
| Parties | Lon A. KAMINSKY; Medical Licensing Board of Indiana, Appellants, v. MEDICAL LICENSING BOARD OF INDIANA; Indiana Board of Chiropractic Examiners; and Roma Lee, Appellees. |
| Court | Indiana Appellate Court |
Kenneth C. Kern, Kenneth C. Kern & Associates, Indianapolis, for appellants.
Linley E. Pearson, Atty. Gen., John Emry, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellees.
Terrence P. Pehler, Indianapolis, for amicus curiae.
This appeal involves the consolidation of three cases. The first case involves an appeal by Lon A. Kaminsky from the Shelby Superior Court which upheld the Medical Licensing Board's decision to suspend Kaminsky's license to practice chiropractic. The second case involves an appeal by Lon A. Kaminsky from the Marion Superior Court which upheld the Indiana Board of Chiropractic Examiner's decision to revoke Kaminsky's license to practice chiropractic. The third case involves an appeal by the State of Indiana ex rel. the Medical Review Board from the Tippecanoe Circuit Court which held in favor of Roma Lee in regard to a complaint alleging the unauthorized practice of medicine. We affirm the decision of the Tippecanoe Circuit Court and dismiss the appeals of the Shelby Superior and the Marion Superior Courts.
Lon A. Kaminsky (Kaminsky) received his license to practice chiropractic in January of 1979 from the Medical Licensing Board of Indiana. Kaminsky's license was supported by his undergraduate education at Andrews University and his Doctor of Chiropractic degree from the Northwestern College of Chiropractic. On December 13, 1980, Kaminsky received a Doctor of Homeopathic Medicine degree from the Johann Keppler School of Medicine. Kaminsky did not attend classes or take an examination to obtain the degree. Kaminsky obtained the degree by providing proof of his undergraduate and graduate work and by paying One Thousand Dollars ($1000).
During the first half of 1981, Kaminsky placed advertisements in the newspaper and used business cards that contained terms prohibited under Indiana Code section 25-22.5-1-1.1(a). 1 The ads and cards contained one of the following phrases: "Dr. Lon A. Kaminsky, D.C., M.D.," "Dr. L.A. Kaminsky, D.C., M.D.," or "Dr. L.A. Kaminsky, M.D., D.C.". In addition to the use of the ads and cards, Kaminsky attached the initials "M.D." to his name in documents submitted with claims for reimbursements to the Prudential Insurance Company. However, Kaminsky was never licensed as a medical doctor. Kaminsky justified his use of the initials "M.D." based upon the degree he obtained from the Johann Keppler School of Medicine which was a degree only for homeopathic medicine, not allopathic or osteopathic medicine. Furthermore, during the first half of 1981 Kaminsky performed urinalysis tests, electrocardiograms, hair analysis tests, lung function tests, blood work tests, chemical sensitivity tests, blood sugar tests and rectal examinations. Kaminsky also prescribed nutrients and non-legend drugs.
On August 24, 1981, the Medical Licensing Board (MLB) suspended Lon A. Kaminsky's license to practice chiropractic for six months and placed him on probation for five (5) years. Kaminsky filed a petition for judicial review and a petition for stay. A stay of the MLB's order was granted.
On February 11, 1983, the Shelby Superior Court ruled on a motion for summary judgment filed by Kaminsky. The court held that the MLB lost its jurisdiction over licensing because of an amendment to Indiana Code section 25-10-1-1 et seq., which became effective on July 1, 1982. The MLB appealed. The court of appeals dismissed the MLB's appeal because the trial court had not entered a final order. On April 22, 1985, the Shelby Superior Court entered its final order on remand upholding the MLB's decision suspending
Kaminsky's license and striking counts II, III and IV of Kaminsky's amended petition for judicial review which sought to add original claims for violations of the Indiana Open Door law, Civil Rights law and State and Federal Anti-Trust laws respectively. Kaminsky appeals this order.
In September of 1983, 846 Ind.Admin.Code 1 became effective and established rules that prohibit a chiropractic practitioner from using specific degree designations unless licensed for that degree. On September 13, 1983, the MLB, the Indiana Board of Chiropractic Examiners (IBCE) and the Attorney General's office received letters advising that Kaminsky would bring himself into compliance with the new rules.
On December 6, 1983, Patricia Alder, an investigator for the Office of the Attorney General, was assigned to investigate Kaminsky. On December 8, 1983, Alder went to Kaminsky's office and made an appointment for December 13, 1983. Alder met with Kaminsky on the 13th and described fictious symptoms of neck and back pain and of vaginal discharge. Another appointment was set for December 20, 1983, but Alder did not attend the scheduled appointment until January 19, 1984. Alder received a partial examination but left the clinic before Kaminsky examined her for the vaginal discharge. Alder prepared affidavits to support a criminal charge which was later dismissed. The affidavits also were used to support charges filed with the IBCE.
On March 22, 1984, Kaminsky was charged with a violation of Ind.Code Secs. 25-10-1-6.5(b)(1), (3) and (5). 2 The charges alleged that Kaminsky exceeded the scope of his practice, committed fraud and material deception by use of false and misleading advertisements and the use of the initials "M.D." and violated a rule of the IBCE by engaging in lewd or immoral conduct. The IBCE issued an emergency suspension on the day the complaint was filed. On May 18, 1984, the count alleging lewd and immoral conduct was dropped.
On June 29, 1984, the IBCE issued its findings of fact, conclusions of law and order. The IBCE's order revoked Kaminsky's license. Kaminsky filed a verified petition for judicial review and obtained a stay of the order. The IBCE filed a motion to dismiss for lack of verification which was denied on November 21, 1984. On March 7, 1985, the Marion Superior Court entered its findings of fact, conclusions of law and order with regard to Kaminsky's appeal. The court upheld the IBCE's order. Kaminsky appealed to this court.
On June 20, 1984, a petition for injunction was filed against Roma Lee (Lee). Lee was the chiropractic assistant to Kaminsky. Lee drew blood, took urine samples, supplied nutrients to patients, and also assisted in physical therapy. Lee was not licensed to practice medicine in Indiana. The petition alleged that Lee's acts constituted the unauthorized practice of medicine. Furthermore, the petition alleged that since Lee did not fall within the exceptions for the unauthorized practice of medicine listed in Ind. Code. Sec. 25-22.5-1-2, she had to be enjoined from engaging in the described activities.
Initially, on December 11, 1984, the court entered an order in favor of the State's motion for summary judgment and restrained Lee from "engaging in or practicing medicine or osteopathic medicine, directly or indirectly, in the State of Indiana until such time that she may qualify for, and be issued a license under the laws of the State of Indiana." Lee filed a motion to correct errors and a motion for relief from judgment pursuant to Indiana Rules of Procedure, Trial Rule 60(B). On May 31, 1985, the court granted Lee's motion We note that while these appeals were pending, Kaminsky filed a petition for reinstatement with the MLB on September 17, 1985. Kaminsky argued his six (6) month suspension would expire on October 22, 1985. The MLB held a hearing and denied Kaminsky's petition on October 24, 1985. Kaminsky filed a petition for judicial review on November 5, 1985, with the Marion Superior Court. The court held that the MLB had jurisdiction and a duty to carry out its previous order. The MLB appealed and the Court of Appeals for the Second District, per Judge Shields, held that the Marion Court erred. Medical Licensing Board of Indiana v. Kaminsky (1987), Ind.App., 509 N.E.2d 893. Judge Shields opined as follows:
for relief from judgment. The court modified its order to take into account Senate Enrolled Act 237 which extended an exception from the unauthorized practice of medicine to persons employed by and supervised by a chiropractor. Accordingly, the court vacated its prior judgment and entered summary judgment in favor of Lee. The State appealed this order and judgment.
Accordingly, the appeal was remanded to the trial court with instruction to remand to the MLB with instructions to dismiss.
We also note that on March 12, 1987, Kaminsky was relicensed by the IBCE. Kaminsky's relicensing renders most of this consolidated appeal moot.
Although Kaminsky presents fifty-two (52) issues for review, the...
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