Kholeif v. Board of Medical Examiners of State of Iowa, 91-606
| Decision Date | 24 March 1993 |
| Docket Number | No. 91-606,91-606 |
| Citation | 497 N.W.2d 804 |
| Parties | Ali A.R. KHOLEIF, Appellee, v. The BOARD OF MEDICAL EXAMINERS OF the STATE OF IOWA; Ronald D. Eckoff, M.D., Acting Director of the Department of Public Health of the State of Iowa; and The Iowa Department of Public Health, Appellants. |
| Court | Iowa Supreme Court |
Bonnie J. Campbell, Atty. Gen., and Julie F. Pottorff, Sp. Asst. Atty. Gen., for appellants.
Lylea Dodson Critelli of Nick Critelli Associates, P.C., Des Moines, for appellee.
Considered by LARSON, P.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.
This interlocutory appeal concerns a district court's power to compel a state licensing board to deliver for in camera judicial review a transcript of the board's closed-session deliberations. The district court ordered appellant Iowa Board of Medical Examiners (board) to prepare such a transcript. We reverse.
In September 1989 the board received two complaints concerning Dr. Ali Kholeif, an Ottumwa anesthesiologist who has been licensed to practice medicine in Iowa since 1979. The complaints concerned two patients, a four-year-old girl who underwent surgery for a broken leg, and a nineteen year-old woman who delivered a child by cesarean section. Both patients suffered complications while under anesthesia administered by Kholeif. The four-year-old ultimately died, and the young woman currently exists in a persistent vegetative state.
After assigning an investigator, the board referred the patients' records to its peer review committee on anesthesiology. In May 1990, the board's executive director filed a formal complaint against Kholeif, and the board issued a summary suspension order for Kholeif to cease his practice pending hearing.
On June 5 Kholeif appeared for a disciplinary hearing before the full board. Kholeif orally objected to the proceedings, arguing that any board member who had participated in the summary suspension order had necessarily prejudged the case. Kholeif then sought to voir dire the board members to challenge them for cause. The board responded by going into closed session. After considering Kholeif's objection, the board explained on the record that the May 10 vote to suspend had not been unanimous, that they understood that only the State's version of the facts had been presented at that time, and that they were now starting fresh, willing to consider both sides of the controversy without bias. After further discussion the hearing was temporarily adjourned to permit Kholeif the opportunity to "pursue a course of comprehensive assessment and remedial training" under the supervision of a board approved anesthesiologist.
In September 1990, the disciplinary hearing resumed, at which time Kholeif renewed his claim that certain board members were biased. Kholeif also registered a conflict of interest complaint, noting that the peer review committee's proposed expert witness was a doctor in the same eighty-member medical clinic as two of the board members. Kholeif also asserted that the board had engaged in prohibited ex parte communications with the assistant attorney general assigned to the case. Again, the board went into closed session to discuss the charges, eventually deciding that there was no ex parte contact, no bias, and no need for any members to recuse themselves.
The board then heard testimony from the investigator, from several Ottumwa doctors (including the anesthesiologist who had supervised Kholeif during his "comprehensive assessment" period) and from the other doctors involved in the two cases which gave rise to the complaints. Based on this evidence the board issued a ruling in which it found that Kholeif provided substandard care to his patients. It revoked his license with no right to reapply for ten years, and fined him $1000 for misleading statements made on his license and insurance applications. Kholeif's subsequent petition for judicial review claimed that the May 10 summary suspension was done ex parte and without notice to him, that the board was predisposed against him, and that the decision was without substantial support in the record made before the agency.
At issue on this appeal is the court's response to Kholeif's application for leave to present additional evidence in the judicial review proceedings. Kholeif requested a transcript of the board's closed-session deliberations "preparatory to the ruling denying Petitioner's request to examine on voir dire the Board." The board resisted on three grounds: (1) the transcripts of closed sessions are not part of the record on judicial review; (2) discovery procedures are not available on judicial review of a contested case; and (3) Kholeif was not entitled to probe the mental processes of board members by reviewing closed-session deliberations.
Over the board's objection, the district court ordered a transcript of the record of the board's June 5 closed deliberations. It further ordered that the transcript would be reviewed by the court for evidence of predispositional bias, animus, or preexisting knowledge. It is from this interlocutory ruling that the board now appeals.
I. Our review of the district court's order is limited to the correction of errors at law. Council Bluffs Community Sch. Dist. v. City of Council Bluffs, 412 N.W.2d 171, 172 (Iowa 1987). This review for legal error includes challenges to the court's authority to order discovery. Fisher v. Iowa Bd. of Optometry Examiners, 478 N.W.2d 609, 611 (Iowa 1991).
II. The Iowa Administrative Procedure Act prescribes the manner by which issues of alleged agency bias shall be raised:
A party to a contested case proceeding may file a timely and sufficient affidavit asserting ... personal bias of an individual participating in the making of any proposed or final decision in that case. The agency shall determine the matter as part of the record in the case. When an agency in these circumstances makes such a determination with respect to an agency member, that determination shall be subject to de...
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