Kieffer v. Board of Medicine

• Decision Date: 15 August 1985
• Docket Number: Docket No. 80123
• Citation: 142 Mich.App. 825,371 N.W.2d 462
• Parties: Earl G. KIEFFER, M.D., Petitioner-Appellee, v. Michigan, Department of Licensing and Regulation, BOARD OF MEDICINE, Respondent-Appellant. 142 Mich.App. 825, 371 N.W.2d 462
• Court: Court of Appeal of Michigan — District of US

Page 462

371 N.W.2d 462

Earl G. KIEFFER, M.D., Petitioner-Appellee, v. Michigan, Department of Licensing and Regulation, BOARD OF MEDICINE, Respondent-Appellant.

Docket No. 80123.

142 Mich.App. 825, 371 N.W.2d 462

Court of Appeals of Michigan.

Submitted March 19, 1985.

Decided May 8, 1985.

Released for Publication Aug. 15, 1985.

[142 MICHAPP 825] Evans & Luptak (by Gordon S. Gold), Detroit, for petitioner-appellee.

[142 MICHAPP 826] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Howard C. Marderosian, Asst. Atty. Gen., for respondent-appellant.

Before WAHLS, P.J., and BRONSON and MEGARGLE, ^* JJ.

PER CURIAM.

Respondent State of Michigan, Department of Licensing and Regulation, Board of Medicine (Board), appeals as of right from an order of the Wayne County Circuit Court which reversed a Board order revoking the medical license of petitioner, Earl G. Kieffer, M.C.

In October, 1982, the Attorney General filed a complaint and amended complaint alleging that petitioner violated certain provisions of the Public Health Code, M.C.L. Sec. 333.1101 et seq.; M.S.A. Sec. 14.15(1101) et seq., and that discipline was warranted. Petitioner's license was summarily suspended, pending hearing and decision by the Board.

The complaint alleged, in essence, that petitioner sold prescriptions for controlled substances and work excuses to two undercover investigators and other persons without examining them to determine their medical condition and without taking a medical history or maintaining proper medical records. It was alleged that between February 18, 1982, and August 24, 1982, petitioner provided various prescriptions to the two undercover agents (one from the Department of Licensing, one from the Wayne Police Department) for controlled substances such as Valium, Activan and Talwin, and medical excuses for their purported employers, without taking medical histories or examining them to determine if there was a legitimate need for drugs or work excuses. It was also alleged that records seized from petitioner showed [142 MICHAPP 827] he prescribed drugs and work excuses to other individuals also. It was alleged that petitioner, through this activity, violated subdivisions (a), (b)(i), and (c)(iv) of Sec. 16221 of the Public Health Code, M.C.L. Sec. 333.16221; M.S.A. Sec. 14.15(16221).

A hearing was held before an administrative law examiner at which petitioner admitted, for the purposes of the hearing, all the allegations in the complaint. While petitioner did not dispute that discipline was required, he requested that his license be limited so that he could continue to practice as an assistant in surgery, rather than a more severe sanction.

The examiner issued his opinion on May 10, 1983, which accurately summarized the evidence presented at the hearing. On June 29, 1983, the Board, adopting the examiner's findings and conclusions, issued a final order revoking petitioner's medical license.

On August 25, 1983, in Wayne County Circuit Court, petitioner filed for review of the Board's order as authorized by M.C.L. Sec. 24.301; M.S.A. Sec. 3.560(201).

On August 16, 1984, the lower court issued its opinion holding that the Board abused its discretion by revoking petitioner's license, the discipline being too harsh. The court believed that the period between the time petitioner's license had been summarily suspended and the time the opinion was issued, a period of over one and one-half years, was an adequate period of suspension. The court, therefore, vacated the Board's order.

An order effecting this decision was entered on August 16, 1984, from which respondent now appeals. On September 11, 1984, this Court granted respondent's motion for a stay of the lower court order.

Respondent Board argues that the lower court [142 MICHAPP 828] erred by vacating its order which revoked petitioner's medical license. We agree. Judicial review of an agency's decision such as the Board's determination to revoke petitioner's license is authorized by the Administrative Procedures Act, M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. The scope of review is set forth in M.C.L. Sec. 24.306; M.S.A. Sec. 3.560(206):

"(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

"(a) In violation of the constitution or a statute.

"(b) In excess of the statutory authority or jurisdiction of the agency.

"(c) Made upon unlawful procedure resulting in material prejudice to a party.

"(d) Not supported by competent, material and substantial evidence on the whole record.

"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.

"(f) Affected by other substantial and material error of law.

"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings."

The lower court determined that the Board abused its discretion by imposing the sanction of revocation. There is no question here whether the Board's decision is supported by competent, material and substantial evidence since petitioner stipulated to the facts in the complaint. In so ruling, the lower court relied almost totally on Marrs v. Michigan Board of Medicine, 129 Mich.App. 559, 341 N.W.2d 543 (1983), as does petitioner on appeal. We believe such reliance is misplaced.

In Marrs, this Court modified a circuit court [142 MICHAPP 829] order which affirmed a Board order disciplining a physician. The Board suspended Dr. Marrs's license for one year, reprimanded him, and imposed restrictions on his license thereafter, after...