Miller v. Board of Medical Examiners, 97-2118.

• Citation: 609 N.W.2d 478
• Decision Date: 26 April 2000
• Docket Number: No. 97-2118.,97-2118.
• Parties: Dennis MILLER, Appellant, v. The BOARD OF MEDICAL EXAMINERS OF the STATE OF IOWA, Appellee.
• Court: United States State Supreme Court of Iowa

609 N.W.2d 478

Dennis MILLER, Appellant, v. The BOARD OF MEDICAL EXAMINERS OF the STATE OF IOWA, Appellee.

No. 97-2118.

Supreme Court of Iowa.

April 26, 2000.

Michael M. Sellers, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Theresa O'Connell Weeg, Assistant Attorney General, for appellee State.

Considered en banc.

NEUMAN, Justice.

The Iowa State Board of Medical Examiners (board) charged the respondent, Dennis G. Miller, an osteopathic physician practicing in Wellman, Iowa, with substandard treatment of patients under his care. The board's case centered on Miller's prescription practices. Following a contested case hearing, the board imposed a two-year probation coupled with compulsory continuing education and restrictions on Miller's ability to prescribe controlled substances.

Miller challenged the board's decision by petitioning for judicial review in accordance with Iowa Code section 17A.19 (1997). The district court affirmed the board. On Miller's appeal, we find no error warranting reversal and, therefore, affirm the judgment of the district court.

I. Background.

The board's investigation was prompted by two calls received in 1990 and 1991, expressing concern about Miller's prescription practices. One call came from a licensed pharmacist, the other from a Pharmacy Board investigator. A preliminary investigation led the board's disciplinary committee to recommend that a selection of Miller's patient files be subjected to peer review.

A two-member peer review committee (composed of two internal medicine specialists, one of whom was also certified in geriatrics) examined the medical records for twelve of Miller's patients. Following the examination, the committee expressed four areas of concern: the amount and frequency of scheduled drug prescriptions, antibiotic usage, open prescriptions and instructions for tranquilizers, and availability of call coverage.

During the disciplinary hearings that followed, a three-member panel of the board heard directly from the physician who prepared the peer review committee's report. The panel also had before it substantial documentary evidence in the form of pharmacy records covering the patients whose medical records had been reviewed. Also called to testify were the director of nursing at a nursing home serviced by Miller, as well as the facility's owner. For his part, Miller elicited the opinion of an independent osteopathic physician who had examined the same records. That physician, however, corroborated most of the findings of substandard practice highlighted by the State's witnesses. Only Miller himself (and, to some degree, the nursing home owner) attempted to justify the prescription practices revealed by the record.

Based on the testimony and exhibits sketched above, the panel concluded that Miller deviated from the applicable standard of care from early 1989 until at least 1993. Its written findings, adopted in full by the entire board upon Miller's appeal, summarized the respondent's deficiencies as follows, stating that he

(a) inadequately evaluated patients on an individual basis before prescribing anti-depressant and anxiolytic medications, failed to adequately document the reasons for the medications, and failed to adequately follow up on the patient's use of the medications to determine if therapeutic effect had been achieved and if the medications could be decreased or discontinued. In addition, the Respondent inappropriately prescribed a dosage range in some cases, allowing nursing personnel to determine the exact dosage to be administered.

(b) prescribed antibiotics for prolonged periods as treatment for urinary tract infections without determining that the infections had recurred or documenting the recurrence of the infections. In addition, the Respondent inappropriately prescribed different antibiotics to the same patient, at the same time, allowing the patient to choose which antibiotic was most effective.

(c) prescribed narcotic and anxiolytics medications to patients with non-terminal chronic pain without adequately pursuing and documenting use of available alternatives to narcotics and controlled medications. In addition, the Respondent prescribed inappropriately large amounts of narcotics for inappropriately long periods of time to patients who were diagnosed with substance abuse or dependence. The Respondent's records indicate that refills were freely provided by telephone, even when patients claimed their medications had been lost or stolen. The Respondent often failed to refer these patients to pain clinics, psychiatrists or psychologists, or to other specialists. In some cases, he ignored the recommendations of specialists to reduce or discontinue use of narcotics and anxiolytics.

The panel found insufficient proof to support a claim that Miller deviated from the applicable standard of care with respect to prescribing for himself and his family. It likewise found the record lacking in proof with regard to any impropriety in Miller's practice of providing alternative physician coverage when unavailable to his patients.

Based on the foregoing findings, the board placed Miller on probation for two years subject to the condition that he secure sixty hours of continuing education in the treatment of urinary tract infections, medical treatment of the elderly, and record keeping, as well as an approved course in management of chronic pain patients. He was directed, during the period of his probation, to maintain thorough and written treatment plans for all patients for whom he prescribed controlled drugs to treat chronic pain, and to make those records available at all times for board inspection. Finally, Miller was directed to cease telephone refills for prescriptions of controlled medications.

On Miller's petition for judicial review, the district court affirmed the board's ruling in its entirety. This appeal by Miller followed. Further facts will be detailed as they pertain to the issues under review.

II. Scope of Review.

Our inquiry on appeal from judicial review of agency action is limited to whether the district court correctly applied the law. Arora v. Board of Med. Exam'rs, 564 N.W.2d 4, 6 (Iowa 1997). We are bound, as is the trial court, by the agency's factual findings "unless a contrary result is demanded as a matter of law." Eaves v. Board of Med. Exam'rs, 467 N.W.2d 234, 237 (Iowa 1991). Constitutional claims are reviewed by this court de novo. Rosen v. Board of Med. Exam'rs, 539 N.W.2d 345, 348 (Iowa 1995).

III. Issues on Appeal.

Although Miller differs with the judgment reached by the board concerning his prescription practices, his appeal only indirectly challenges the board's proof. He insists, by way of explanation for the appeal, that probation is a "life sentence" because insurers will now "drop" him from their lists of approved physicians. He seeks reversal, rather than rehearing, mindful that his probationary term will have been completed by the time this decision is filed.¹ He claims to seek redress for alleged statutory and constitutional violations, not only for himself, but on behalf of all physicians who might face such disciplinary procedures in the future.

Miller poses four principal contentions for our consideration: (1) The composition of the disciplinary panel, which included only two licensed professionals, violated the equal protection clauses of the Iowa and United States Constitutions; (2) the board's policy of destroying original investigative materials upon filing the complaint requires reversal as a matter of law; (3) the peer review proceedings employed by the board violated due process; and (4) the doctrine of laches, as well as the lack of patient complaints, deprives the board of jurisdiction to sanction him. We shall consider the arguments in turn.

A. Composition of disciplinary panel. Iowa Code chapter 272C generally governs the regulation of professional and occupational licensees with respect to continuing education and discipline. Section 272C.6 provides that disciplinary hearings shall be conducted by the licensing board "or by a panel of not less than three board members who are licensed in the profession." An express exception to this provision, however, is found in Iowa Code section 147.103A(6). That statute, pertinent to physicians and surgeons, provides that disciplinary matters "shall be heard by the board, or by a panel of not less than three board members, at least two of which are licensed in the profession...." Iowa Code § 147.103A(6) (emphasis added). Miller challenges the constitutionality of section 147.103A(6), claiming that the panel which heard his case—composed of two licensed physicians and one lay board member—violated his right to equal protection of the laws. See U.S. Const. amend. XIV; Iowa Const. art. I, § 6.

At the outset Miller concedes that the statutory scheme at issue involves neither a suspect classification nor a fundamental right. Thus he agrees that no more exacting standard than the rational basis test applies. See Ruden v. Parker, 462 N.W.2d 674, 676 (Iowa 1990)

. Under that familiar analysis, the statute enjoys a presumption of constitutionality which can only be overcome by proof that the law is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Glowacki v. Board of Med. Exam'rs, 501 N.W.2d 539, 541 (Iowa 1993). Miller has not met that proof burden here.

The board offered two reasonable explanations for the legislative rationale underlying section 147.103A(6), both of which were accepted by the district court. First, the same bill which enacted section 147.103A(6) also amended section 147.14(2) by adding another public member to the board. See 1992 Iowa Acts ch. 1183, § 2. Thus the bill reflects a legislative intent to increase lay participation on the medical board, a goal consistent with the significant public health and safety issues involved in the regulation of...