Kloch v. Kohl

• Decision Date: 03 November 2008
• Docket Number: No. 07-2120.,07-2120.
• Parties: Gregory M. KLOCH, M.D., Plaintiff/Appellee, v. Randy T. KOHL, M.D., Individually, and in his Official Capacity; Joseph C. Scott, Jr., M.D., Individually, and in his Official Capacity; Arthur A. Weaver, D.O., Individually, and in his Official Capacity; Kathryn Kahla, Individually, and in her Official Capacity; John L. Reed, M.D., Individually, and in his Official Capacity; Gordon D. Adams, M.D., Individually, and in his Official Capacity; David A. Dryburgh, Individually, and in his Official Capacity; Michael A. Sitorius, M.D., Individually, and in his Official Capacity; Debra J. Ford, Individually, and in her Official Capacity, Defendants, Jon C. Bruning, Individually, and in his Official Capacity, Defendant/Appellant, Richard Nelson, Individually, and in his Official Capacity; Richard Raymond, M.D., Individually, and in his Official Capacity; Successors of the Foregoing Individuals, The, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

545 F.3d 603

Gregory M. KLOCH, M.D., Plaintiff/Appellee, v. Randy T. KOHL, M.D., Individually, and in his Official Capacity; Joseph C. Scott, Jr., M.D., Individually, and in his Official Capacity; Arthur A. Weaver, D.O., Individually, and in his Official Capacity; Kathryn Kahla, Individually, and in her Official Capacity; John L. Reed, M.D., Individually, and in his Official Capacity; Gordon D. Adams, M.D., Individually, and in his Official Capacity; David A. Dryburgh, Individually, and in his Official Capacity; Michael A. Sitorius, M.D., Individually, and in his Official Capacity; Debra J. Ford, Individually, and in her Official Capacity, Defendants, Jon C. Bruning, Individually, and in his Official Capacity, Defendant/Appellant, Richard Nelson, Individually, and in his Official Capacity; Richard Raymond, M.D., Individually, and in his Official Capacity; Successors of the Foregoing Individuals, The, Defendants.

No. 07-2120.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2007.

Filed: November 3, 2008.

Michael John Rumbaugh, AAG, argued, Joseph M. Aldridge, Senior Certified Law Student, Attorney General's Office, on the brief, Lincoln, NE, for appellant.

Sally A. Rasmussen, argued, Lincoln, NE, for appellee.

Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

In this interlocutory appeal, Nebraska Attorney General Jon Bruning seeks reversal of the district court's decision denying him absolute and qualified immunity in the lawsuit brought under 42 U.S.C. § 1983 by Gregory M. Kloch, M.D., which claimed that provisions of Nebraska's Uniform Licensing Law violated the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. We reverse.

I.

Dr. Kloch is a physician licensed by the state of Nebraska who maintains a family practice in Lexington, Nebraska. Until very recently,¹ physicians in Nebraska were regulated through a statutory scheme known as the Uniform Licensing Law.² Neb.Rev.Stat. § 71-101 et seq. (2007) (recodified with amendments as the Uniform Credentialing Act, Neb.Rev.Stat. § 38-101 et seq. (2008)). The Uniform Licensing Law distinguished between investigation, prosecution, and adjudication of disciplinary actions against a physician's license; and the law provided for a different agency or official to take responsibility for each part of the disciplinary process.

Investigations were conducted by the Nebraska Department of Health and Human Services Regulation and Licensure (Department of Health). After completing an investigation, the Department of Health would consult with the Board of Medicine and Surgery (Medical Board), which would make disciplinary recommendations to the Nebraska Attorney General. Id. § 71-168.01. The Attorney General would then decide whether or not to prosecute a disciplinary action against the physician. Disciplinary action could include revoking, suspending, or restricting a physician's license; imposing a civil penalty; placing a physician on probation; or issuing a censure. See Neb.Rev.Stat. §§ 71-155, 71-171. If the Attorney General decided to prosecute a case, a formal hearing was required, and a neutral official would adjudicate the dispute. Id. § 71-155(1).

For cases that involved "a technical or insubstantial violation," however, the Attorney General had the option of referring the case back to the Medical Board with instructions to issue a nondisciplinary letter of concern. Id. § 71-171.01(3). The provisions of the statute at issue in this case read as follows:

Section 71-171.01. The [Department of Health] shall provide the Attorney General with a copy of all complaints it receives and advise the Attorney General of investigations it makes which may involve any possible violation of statutes or rules and regulations by the credentialed person. The Attorney General shall then determine which, if any, statutes, rules, or regulations the credentialed person has violated and the appropriate legal action to take. The Attorney General may . . . (3) in cases involving a technical or insubstantial violation, refer the matter to the appropriate professional board for the opportunity to resolve the matter by issuance of a letter of concern or to recommend to the Attorney General that he or she enter into an assurance of compliance with the credentialed person in lieu of filing a petition. Neither a letter of concern nor an assurance of compliance shall constitute discipline against a credentialed person.

Section 71-171.02. Upon referral of a matter under section 71-171.01 by the Attorney General, the professional board may: (1) Send to the credentialed person a letter of concern, approved by the Attorney General, which includes a statement of the statute, rule, or regulation in question and a statement advising the credentialed person of the conduct that would violate such statute, rule, or regulation. Such letter shall be signed by the board and shall become a part of the public record of the credentialed person. . . .

In May 2002, Dr. Kloch received notice from the Department of Health that a complaint had been filed against him. Dr. Kloch was informed that an investigation would be conducted, and he was asked to submit his curriculum vitae. Dr. Kloch responded by contacting the investigator assigned to his case but was apparently unable to obtain details about the patient involved or the incident under review.

Three months later, Dr. Kloch received a letter of concern from the Medical Board. The letter explained that Dr. Kloch had been investigated for failing to keep proper medical records on a patient who had received emergency treatment in 2001. It further advised Dr. Kloch that failure to adequately maintain records was a form of unprofessional conduct for which a physician's license could be disciplined. The letter detailed the Medical Board's findings — stating, for instance, that Dr. Kloch had erroneously recorded that the patient "did not have a palpable pulse," and "documented that the surgeon . . ., rather than the patient, had undergone a thoracotomy." The letter concluded by stating: "Please accept this Letter of Concern as a caution. This Letter of Concern is not considered a disciplinary action against your license" (emphasis in original). In accordance with the then-extant law, the letter was made part of Dr. Kloch's public record and was available on the Department of Health's website. See id. § 71-171.02.

After receiving the letter of concern, Dr. Kloch twice attempted to have it expunged. He attended Medical Board meetings in October 2002 and August 2004 each time denying the allegations in the letter and asking the Medical Board to reconsider. After the Medical Board refused to do so, Dr. Kloch filed this action, alleging that the issuance of the letter violated his due process rights because he was given neither adequate notice of the charges against him nor an opportunity to respond to those charges. The complaint named Bruning as a defendant in both his individual and official capacity. It also named as defendants several Medical Board members and the past and present director of the Department of Health.

The parties submitted cross-motions for summary judgment, contesting the constitutionality of the Uniform Licensing Law and the issue of immunity. Concluding that Dr. Kloch had a protected property interest in his medical license and that the Uniform Licensing Law allowed the state of Nebraska to deprive physicians of property without affording them notice and an opportunity to respond, the district court held that the Uniform Licensing Law was unconstitutional on its face and as applied to Dr. Kloch. Accordingly, the district court enjoined Bruning and his successors from enforcing the statute; and it ordered Bruning and the Department of Health to cease disseminating the letter, to rescind the letter, and to expunge any references thereto from Dr. Kloch's public record.

After deciding the constitutional issue, the district court found that qualified immunity protected all defendants other than Bruning. The court denied Bruning qualified immunity, concluding that, as a licensed attorney, Bruning reasonably should have known that the law was unconstitutional. The court also rejected Bruning's argument that he was entitled to absolute prosecutorial immunity, finding that he "did not initiate a prosecution or engage in functions closely tied to the judicial system."

Bruning contends that the district court erred in denying his claim of both qualified and absolute immunity. Because we conclude that Bruning was entitled to qualified immunity, we do not consider his alternative argument that the prosecutorial nature of his conduct protected him from personal liability. Because the Nebraska legislature has eliminated letters of concern in its recent recodification of the Uniform Licensing Law, see Neb.Rev.Stat. § 38-1,107 (2008), the constitutionality of the original statute is relevant only as it bears on the question of Bruning's liability to Dr. Kloch.

II.

A district court's grant or denial of summary judgment on the issue of qualified immunity is reviewed de novo. See South Dakota v. U.S. Dept. of Interior, 423 F.3d 790, 794 (8th Cir.2005). Examining the record in the light most favorable to the nonmoving party, we consider whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Id.

For government officials performing discretionary functions, qualified immunity provides a shield from civil damages except in cases in which they have violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Thomas v. Hungerford, 23 F.3d 1450, 1452 (8th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This standard "gives ample room for mistaken judgments by protecting all but...