Lacey v. State Bd. of Reg. for Healing Arts

• Decision Date: 16 March 2004
• Docket Number: No. WD 62574.,WD 62574.
• Citation: 131 S.W.3d 831
• Parties: Hugh L. LACEY, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent.
• Court: Missouri Court of Appeals

131 S.W.3d 831

Hugh L. LACEY, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent.

No. WD 62574.

Missouri Court of Appeals, Western District.

March 16, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2004.

As Modified April 27, 2004.

John L. Roark, Columbia, MO, for appellant.

Nicole L. Sublett, Assistant Attorney General, Jefferson City, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, HAROLD L. LOWENSTEIN, Judge and ROBERT G. ULRICH, Judge.

JOSEPH M. ELLIS, Chief Judge.

Hugh L. Lacey, M.D., ("Dr. Lacey") appeals a judgment of the Circuit Court of Cole County upholding an order of the State Board of Registration for the Healing Arts ("Board") imposing additional discipline on his license to practice medicine in Missouri. After reviewing the record and the law, we reverse, and remand to the circuit court for its entry of a final judgment in favor of Dr. Lacey.

As reflected in the briefs of the parties, the facts of this case, most of which were the subject of joint stipulations presented to the Administrative Hearing Commission ("AHC") or the Board, are essentially undisputed. Dr. Lacey, who has practiced obstetrics and gynecology in the Joplin area for many years, engaged in inappropriate sexual behavior with two of his female patients between June 1999 and February 2000. Following an intervention by Robert Bondurant and the Missouri Physician's Health Program ("MPHP"), in early November 2000, Dr. Lacey reported to the Professional Renewal Center ("PRC") in Lawrence, Kansas, to undergo assessment, with probable treatment and professional rehabilitation to follow.

After receiving appropriate preliminary treatment and rehabilitative therapy from Dr. Richard Irons and other PRC personnel, Dr. Lacey consented to discipline of his medical license. On April 17, 2001, the AHC entered a consent order between Dr. Lacey and the Board that incorporated, among other things, a joint stipulation of facts and an agreed disciplinary order (the "First Disciplinary Order" or "FDO"). The FDO provides for the suspension of Dr. Lacey's medical license for ninety days, followed by a seven-year probationary period during which Dr. Lacey agreed to continue to submit to care, counseling, and treatment by Dr. Irons. Dr. Lacey further agreed to participate in the MPHP treatment program throughout the duration of the disciplinary period.

The FDO also contains a number of specific provisions governing Dr. Lacey's medical practice during the seven-year probationary period. Paragraph II.A.2 of the FDO requires Dr. Lacey to comply with "all recommendations for treatment made by Dr. Irons." Those recommendations, which were made in a January 9, 2001 letter from Dr. Irons to Robert Bondurant of MPHP, include the following:

Dr. Lacey will limit his practice of medicine and surgery to office and hospital settings and not see patients outside of those venues. He will use a female chaperone for physical examinations of all female patients. The chaperone will be a licensed health care professional. He will continue to examine women only with a chaperone present.

Paragraph II.A.3 of the FDO also requires Dr. Lacey to "follow all recommendations for treatment or aftercare made by" MPHP, as well as to "comply with each and every requirement to remain in the [MPHP] program." According to the MPHP "Advocacy Agreement" signed by both Mr. Bondurant and Dr. Lacey on December 6, 2000, Dr. Lacey was subject to the following such requirement, which was handwritten in a section headed "Other requirements":

A nurse/chaperone will be present for all gyn[ecological] patient examinations.

Meanwhile, paragraph II.A.4 of the FDO provides:

During the disciplinary period, Licensee [Dr. Lacey] shall have a female licensed health care professional present during all female patient visits.

Shortly before signing and agreeing to be bound by the terms of the FDO on April 10, 2001, Dr. Lacey sought guidance from his attorney as to whether a nurse chaperone was required only while he was performing physical, obstetrical, or gynecological examinations involving actual physical contact with his female patients, or also during the interview/medical history portion of female patient visits. After checking with James Ertle, who was then serving as counsel for the Board (and, the record shows, actually signed the FDO in that capacity), Dr. Lacey's attorney advised Dr. Lacey that Mr. Ertle thought it would be appropriate for Dr. Lacey to take the medical history from his female patients with the door to the examining room open and to conduct all physical examinations in the presence of the nurse chaperone. Thereafter, Dr. Lacey began employing this procedure—that is, he utilized a nurse chaperone during the physical examination portion of each female patient's office visit, but not during the medical history-taking portion, which takes approximately ten to fifteen minutes to complete. All medical histories were taken by Dr. Lacey in the examining room, with the door deliberately left open so members of Dr. Lacey's office staff could see into the room. All patients were fully clothed during the medical history-taking portion of their office visits.

About a month later (in May 2001), Dr. Lacey met with one of the Board's investigators, Michael Bergman, about the terms and conditions of his probation. During this meeting, Dr. Lacey and Mr. Bergman discussed the "Chaperone Requirement" of the FDO, and Dr. Lacey took written notes of their discussion. According to Dr. Lacey's notes, Mr. Bergman advised him, "This means that you must have a chaperone present for all examinations." On or about September 26, 2001,¹ Dr. Lacey was advised that the Board had interpreted the FDO to require the presence of a nurse chaperone at all times during female patient visits. After Dr. Lacey learned of this interpretation, he immediately made arrangements for a nurse chaperone to be present during the entirety of all female patient visits.

On February 25, 2002, the Board filed a complaint and notice of hearing against Dr. Lacey for violating the terms of his probation. In particular, the Board alleged that Dr. Lacey's failure, from May 29, 2001, through September 26, 2001, "to perform all aspects of a female patient visit before a licensed health care professional [e.g., nurse chaperone] is in violation of Paragraph 4 of the [First] Disciplinary Order." On April 5, 2002, the Board conducted an evidentiary hearing to determine whether Dr. Lacey had "violated any disciplinary terms previously imposed or agreed to pursuant to settlement." § 620.153.² In addition to the facts recited above, the Board's Chief Investigator, John Heidy, testified that he was unaware of any notification from MPHP administrators that Dr. Lacey had failed to comply with any of the terms of the FDO. Dr. Lacey also testified that he was unaware of any patient complaints regarding inappropriate behavior on his part, either before or after September 26, 2001, when he began employing the revised office procedure described above as to his female patients.

On April 23, 2002, the Board issued another order (the "Second Disciplinary Order" or "SDO") imposing additional license discipline, under which the length of the term of Dr. Lacey's probation was extended by an additional nine months and twenty days. As provided in §§ 536.100 to 536.140, Dr. Lacey timely filed a petition for judicial review of the Board's decision in the Circuit Court of Cole County, requesting reversal of the SDO and an award of attorney's fees and costs. After reviewing the record, the briefs submitted by both parties, and hearing oral argument, the circuit court entered a final judgment affirming the Board's SDO of April 23, 2002. Dr. Lacey now appeals to this court, as authorized under § 536.140.6.

Extent and Standard of Review

Where license discipline is imposed, the Board ordinarily assesses the appropriate level of discipline after the AHC has made an independent determination, on the law and the evidence submitted by both the Board and the licensee, that cause for discipline exists. On appeal from the judgment of the circuit court in such cases, we treat the AHC's decision as to the existence of cause and the Board's subsequent disciplinary order "`as one decision,'" and proceed to review that combined decision, not the circuit court's judgment. Dorman v. State Bd. of Registration for the Healing Arts, 62 S.W.3d 446, 453 (Mo.App. W.D.2001) (quoting § 621.145, which governs judicial review of "all final decisions" of the AHC). However, this case involves the Board's imposition of additional discipline, after hearing, under the provisions of § 620.153. That statute, which was enacted in 1998, provides, in its entirety:

Any board, commission or committee within the division of professional registration³ may impose additional discipline when it finds after hearing that a licensee, registrant or permittee has violated any disciplinary terms previously imposed or agreed to pursuant to settlement. The board, commission or committee may impose as additional discipline, any discipline it would be authorized to impose in an initial disciplinary hearing.

Id.

Under the circumstances presented in § 620.153 cases, the prior, underlying final decision of the AHC originally finding cause for discipline is generally either not at issue or for one reason or another is no longer appealable, so the Board's order imposing additional discipline is the only action which can be the subject of appellate review. Although the parties do not cite, and we have been unable to find, any cases discussing the standard of review on appeal of a decision of the Board imposing additional license discipline under § 620.153, we think it should be the same one used in ordinary initial license discipline cases, with the additional understanding that only the Board's decision is reviewed, rather than those...