Kansas State Bd. of Healing Arts v. Acker, 51343

• Decision Date: 14 June 1980
• Docket Number: No. 51343,51343
• Citation: 612 P.2d 610,228 Kan. 145
• Parties: KANSAS STATE BOARD OF HEALING ARTS, Appellee, v. Stevens B. ACKER, M. D., Appellant.
• Court: Kansas Supreme Court

Page 610

612 P.2d 610

228 Kan. 145

KANSAS STATE BOARD OF HEALING ARTS, Appellee, v. Stevens B. ACKER, M. D., Appellant.

No. 51343.

Supreme Court of Kansas.

June 14, 1980.

Syllabus by the Court

1. K.S.A. 1979 Supp. 65-2836(b) is not unconstitutionally vague by reason of the failure of the legislature and the Kansas State Board of Healing Arts to define or specify the "immoral" or "dishonorable" conduct which is prohibited by the statute.

2. In considering the constitutionality of a statute it is the duty of this court to uphold legislation rather than defeat it. It is presumed that the legislature intended to pass a valid law. If there is any reasonable way to construe legislation as constitutionally valid, it should be so construed.

3. The terms "immoral" and "dishonorable" as used in K.S.A. 1979 Supp. 65-2836(b) must be construed as having been used by the legislature in their generally accepted sense.

4. The test for measuring vagueness when considering the constitutionality of a statute is whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice.

5. The terms "immoral conduct" and "dishonorable conduct" as used in K.S.A. 1979 Supp. 65-2836 are not so vague and indefinite that the statute must be declared unconstitutional.

6. Detailed findings of fact and conclusions by an administrative agency are recommended and are of great help to the trial court and appellate courts in reviewing administrative decisions.

7. Specific findings of fact by an administrative agency, while desirable, are not indispensable to a valid decision in the absence of a statute or rule requiring them.

8. A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority.

9. The intentional misrepresentation or misleading by a doctor to a patient of the scope of his ability and authority to practice medicine could very well be considered dishonorable conduct as proscribed by K.S.A. 1979 Supp. 65-2836(b).

10. Sanctions imposed by the Kansas State Board of Healing Arts under K.S.A. 1979 Supp. 65-2836, if within the authority granted by the statute and if not the result of fraudulent, arbitrary or capricious conduct by the Board, will not be disturbed on appeal.

11. In an appeal by a practitioner of the healing arts from an order of the district court affirming a two-year suspension ordered by the Kansas State Board of Healing Arts, the record is examined and it is held : the trial court committed no error in arriving at its decision and the judgment is affirmed.

Richard M. Klinge, of Kaplan, McMillan & Klinge, Wichita, argued the cause and David L. Ryan, Topeka, was with him on the brief for appellant.

Wallace M. Buck, Jr., Topeka, argued the cause and was on the brief for appellee.

HOLMES, Justice:

This appeal by Stevens B. Acker, M.D., of Wichita, from a district court decision upholding a decision of the Kansas State Board of Healing Arts (Board) to suspend appellant's license to practice medicine for two years culminates nearly ten years of controversy between Dr. Acker on one hand and Wesley Medical Center of Wichita (Wesley), the Medical Society of Sedgwick County (Society) and the Board on the other.

Dr. Acker is a graduate of the Kansas University School of Medicine and has been conducting a general or family practice in Wichita since 1961. Prior to 1971 he performed general surgery, delivered babies and had general hospital privileges at Wesley and other Wichita hospitals. It appears that in 1971 a dispute arose between Dr. Acker and Wesley over some missing hospital records. Dr. Acker was suspended by Wesley from all admitting privileges and subsequently other Wichita hospitals followed suit. Dr. Acker has not had hospital privileges in Wichita since the early 1970's. Nevertheless his practice flourished and he developed a substantial general practice with numerous obstetrical patients. Between 1971 and 1977, Dr. Acker sought to regain his Wesley privileges by compliance with certain requests from the Board and the Society but was not successful. Twice during this period of time the Society filed complaints with the Board but on each occasion the Board declined to take any action.

On October 13, 1977, the Board filed a petition against Dr. Acker in which it sought the revocation, suspension or limitation of his license to practice medicine. The allegations against Dr. Acker were:

"That probable cause exists that Dr. Acker did commit acts which would be deemed dishonorable conduct and professional incompetency, to wit:

(a) Failed to inform and deliberately misled patients in regard to his ability to deliver babies at Wesley Medical Center knowing full well he was denied hospital privileges at all Wichita hospitals.

(b) Improper diagnosis of hypoglycemia in several cases when hypoglycemia was not indicated."

After a hearing before a panel of the Board, which included thirty witnesses, eighty-four exhibits and covers eight hundred thirty-four pages of transcript, the panel issued its report. The panel found from the evidence that:

"4. Testimony was presented showing that the respondent misled and failed to inform patients in regard to his ability to deliver babies at Wesley Medical Center knowing that he had no hospital privileges at any Wichita hospitals.

"5. Expert testimony failed to establish that respondent's hypoglycemia diagnoses were inaccurate."

The panel then reached the following conclusions and recommendations:

"C. Conclusions of Law

"1. The evidence introduced by the State substantially supports Count A of the Petition filed by the Attorney for the Board.

"2. The evidence introduced by the State is inconclusive as it pertains to Count B of the Petition filed by the Attorney for the Board.

"D. Recommendations to Board

"1. The respondent, Stevens B. Acker, M.D., be adjudged guilty of dishonorable conduct by reason of his having failed to inform and having deliberately misled patients in regard to his ability to deliver babies at Wesley Medical Center while knowing full well that he was denied hospital privileges at all Wichita hospitals.

"2. The respondent be adjudged not guilty of professional incompetence, due to lack of evidence on Count B.

"3. That the respondent be suspended from the practice of medicine and surgery for a period of two years, commencing on the date of filing of the Order of the Board."

On February 11, 1978, the Board issued its order of suspension in which it repeated verbatim the foregoing findings and conclusions of the hearing panel and then rendered its decision and orders as follows:

"D. Decision of the Board

"1. The defendant, Stevens B. Acker, M.D., be adjudged guilty of dishonorable conduct by reason of his having failed to inform and having deliberately misled patients in regard to his ability to deliver babies at Wesley Medical Center while knowing full well that he was denied hospital privileges at all Wichita hospitals.

"2. The defendant be adjudged not guilty of professional incompetence, due to lack of evidence on Count B.

"3. That the defendant be suspended from the practice of medicine and surgery for a period of two years, commencing on the date this order is served on Stevens B. Acker, M.D. IT IS THEREFORE BY THE BOARD ORDERED:

"1. That the license of the defendant, Stevens B. Acker, M.D., to practice Medicine and Surgery in this state is hereby suspended for two years commencing on the date this order is served on the defendant.

"2. That the defendant shall pay the costs of this proceeding as provided by law in the amount to be determined."

Dr. Acker appealed to the district court where his request for a trial de novo was denied. On July 27, 1979, the trial court issued its memorandum decision affirming the action of the Board. This appeal by Dr. Acker followed. Additional facts will be set forth as they become necessary.

Although K.S.A. 1978 Supp. 65-2836 was amended in 1979, the amendments are not pertinent to this appeal and we will consider the statute as it now exists.

K.S.A. 1979 Supp. 65-2836 provides in part:

"A license may be revoked, suspended or limited when the licensee has been found to have committed any of the following acts: (a) Fraud in securing the license. (b) Immoral, unprofessional or dishonorable conduct or professional incompetency. (c) Conviction of a felony if the board determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust. (d) Use of untruthful or improbable statements or flamboyant, exaggerated or extravagant claims in advertisements concerning such licensee's professional excellence or abilities. (e) Use and distribution of literature advertising professional abilities. (f) Other unethical advertising practice. (g) Addiction to or distribution of intoxicating liquors or drugs for any other than lawful purposes. (h) Willful or repeated violation of this act, the pharmacy act of the state of Kansas or the uniform controlled substances act, or any rules and regulations adopted pursuant thereto, or any rules and regulations of the secretary of health and environment which are relevant to the practice of the healing arts. (i) Unlawful invasion of the field of practice of any branch of the healing arts in which the licensee is not licensed to practice. (j) Failure to pay annual renewal fees specified in this act. (k) Failure to take some form of postgraduate work each year or as required by the board. (l) Engaging in the practice of the healing arts under a false or assumed name, or the impersonation of another practitioner. The provisions of this subsection relating to...