Kansas State Bd. of Nursing v. Burkman

• Decision Date: 25 January 1975
• Docket Number: No. 47555,47555
• Citation: 216 Kan. 187,531 P.2d 122
• Parties: KANSAS STATE BOARD OF NURSING, Appellant, v. Patricia Jane BURKMAN, Appellee.
• Court: Kansas Supreme Court

Page 122

531 P.2d 122

216 Kan. 187

KANSAS STATE BOARD OF NURSING, Appellant, v. Patricia Jane BURKMAN, Appellee.

No. 47555.

Supreme Court of Kansas.

Jan. 25, 1975.

Syllabus by the Court

1. In an appeal from an order of the board of nursing pursuant to the provisions of K.S.A. 65-1121(b) a district court may not substitute its judgment for that of such board, but is restricted to considering whether, as a matter of law, the order was unlawful, arbitrary or unreasonable.

2. In reviewing a district court's judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal's action as does the district court.

3. While an administrative body, such as the board of nursing, has wide discretion in determining its judgments, particularly in the area of licensing, such discretion cannot be abused and such board cannot be the final judge of the reasonableness of its own orders.

4. In an appeal from a judgment of the district court setting aside an order of the board of nursing suspending, for a period of six months, a license to practice nursing as a registered nurse for the reason that appellee nurse had failed to renew her license as provided by K.S.A. 65-1117, the record is examined and, for the reasons set forth in the opinion, it is held: The district court did not err in finding that under the provisions of K.S.A. 65-1113 et seq., the order of the board of nursing was arbitrary and unreasonable.

W. J. Fitzpatrick, Independence, argued the cause and was on the brief for appellant.

Charles F. Forsyth, Erie, argued the cause and was on the brief for appellee.

KAUL, Justice.

This action stems from an order of the appellant-Kansas State Board of Nursing (hereafter referred to as the board) suspending, for a period of six months, the license of appellee to practice professional nursing.

Appellee, Patricia Jane Burkman, became a registered nurse in 1957. She practiced her profession as a licensed registered nurse through December 31, 1970, when her license for the year 1970 expired. Although she had received an application form for renewal of her license, she failed to mail an application for renewal as required by K.S.A. 65-1117, which provides the normal procedure in renewing a license, as well as the procedure for securing a renewal of a lapsed license. It reads in pertinent part as follows:

'. . . Upon receipt of such application and payment of fee, the board shall verify the accuracy of the application and grant a renewal license effective January 1, and expiring the following December 31, and such renewal license shall render the holder thereof a legal practitioner of nursing for the period stated on the certificate of renewal.

'Any person who shall fail to secure a renewal license within the time specified herein may secure a renewal of his or her lapsed licensed by making verified application therefor on aform to be provided by the board and upon furnishing proof that the applicant is at the time of making such application competent and qualified to act as a professional or practical nurse and such additional material and information as may be required by the board, and payment to the board of a renewal fee.'

Despite her failure to renew her license, appellee continued to practice as a registered nurse, serving as Director of Nurses at Neosho Memorial Hospital until August 1972 and then worked for nearly a year in the office of her husband, a licensed physician. In July 1973 appellee was apprised of the fact that a complaint had been filed with the board concerning her continued practice under a lapsed license. Appellee, by telephone, requested the board to send her a renewal application. On receipt of this application appellee filled it out and returned it together with the appropriate renewal fee to the board as contemplated in the last paragraph of K.S.A. 65-1117, above quoted. Appellee's license was not renewed and she asked for a hearing before the board. In the meantime a complaint was filed by the board's attorney charging that appellee did not renew her license to practice nursing after it expired on December 31, 1970, and that she:

'. . . did knowingly, willfully, and unlawfully practice as a professional nurse as defined by the provisions of K.S.A. 65-1113, (b)(1) and within the State of Kansas on and after the 31st day of December, 1970 after her license to practice as a professinal nurse in the State of Kansas for the year 1970 had expired, and did so engage in the practice of professional nursing on and after December 31, 1970 without being licensed to do so by the Kansas State Board of Nursing, contrary to and in violation of the provisions of K.S.A. 65-1122(b) and by reason thereof is guilty of unprofessional conduct as set forth in the provisions of K.S.A. 65-1120(a)(6).'

On November 30, 1973, a hearing was had in which the board found:

'(1) That the respondent practiced professional nursing without a license for a long period of time, approximately 31 months in a responsible position which requires supervision of other professional personnel. In this position, she should have been aware of her own legal status, as well as those under her supervision.

'(2) That the respondent failed to assume personal responsibility for maintaining a current license as required by law.'

Based upon the findings recited the board made the following orders:

'(1) That the acts of the above-quoted respondent as set forth herein constitute unprofessional conduct.

'(2) That the license of the respondent, Patricia Jane Burkman, to practice professional nursing within the State of Kansas be suspended for a period of six (6) months, beginning December 1, 1973, through May 31, 1974.'

Pursuant to K.S.A. 65-1121(a), appellee filed an application for rehearing which was denied. Thereafter, appellee appealed to the district court for review of the board's order as provided in 65-1121(b) which reads in pertinent part:

'. . . The court shall review the record of the boared's proceedings of such order or decision and, in event it finds such order or decision unlawful, arbitrary or unreasonable, may vacate or set aside such order. . . .'

After hearing argument the court set aside the board's order and directed the board to issue a license to plaintiff. In its memorandum opinion the trial court found:

'Plaintiff continued to function as a nurse during the time that her license had lapsed. There is no evidence that she wilfully or intentionally failed to renew her license, and there is no contention that she was not at all times fully qualified; further, it is not charged and there is no evidence that she committed any act, either of commission or omission, that would be the basis for revocation or suspension other than failure to renew her license annually.'

The court noted the limitations of its power and review undre 65-1121 and Kansas decisions bearing upon the subject collected and discussed in the case of Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828, 28 A.L.R.3d 472. The trial court further pointed out that the grounds for revocation or suspension of a nursing license are set out in K.S.A. 65-1120 1120 and that the only ground relied upon by the board was unprofessional conduct. The trial court's reasoning was that while the evidence in this case showed that appellee was negligent it was only carelessness in failing to renew her license and that there was no evidence that she wilfully or intentionally failed to do so; and that such negligence had nothing to do with the performance of her duties as a nurse and, therefore, did not constitute unprofessional conduct.

Regulation of the nursing profession has been provided by statute in Kansas since 1913 (Laws of 1913, Chapter 231), but this is the first case to reach this court in which an action of the board has been challenged. While there are some differences in structure and language of the act in question and that of the licensing acts of allied professions engaged in the healing arts, we believe the general purpose of the nursing act to be essentially the same as that found by this court with respect to other licensing acts. In considering the licensing act of psychologists (K.S.A. 74-5301) in the recent case of Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P.2d 614; Justice Fontron speaking for the court said:

'It should be borne in mind that the underlying purpose of licensing acts of this character is to afford protection to members of the public against unscrupulous, immoral or incompetent practitioners of the healing arts and allied professions. . . .' (p. 111, 510 P.2d p. 621.)

In considering the purpose of licensing acts related to other professions engaged in the healing arts, this court has expressed a similar view with respect to doctors of medicine, (Kansas State Board of Healing Arts v. Foote, supra); dentists, (Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P.2d 597); optometrists, (Marks v. Frantz, 183 Kan. 47, 325 P.2d 368); and child care homes, (Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239.)

Unlike most of the licensing acts referred to, the nursing act, as we have noted, prescribes by statute the scope of judicial review of proceedings before the board. According to K.S.A. 65-1122 the tests to be applied to the board's orders on judicial review are 'unlawful, arbitrary or unreasonable.' The framework in which judicial determination of these tests is to be made is the same as that set forth by this court in many cases which dealt with judicial review of similar administrative bodies. In Foote we considered the less specific judicial review provisions of K.S.A. 65-2848. The expressions of this court in many cases involving judicial review were noted and we said:

'Rules...