Sangster v. Ky. Bd. of Med. Licensure

• Decision Date: 29 October 2010
• Docket Number: No. 2009–CA–002277–MR.,2009–CA–002277–MR.
• Citation: 345 S.W.3d 853
• Parties: David P. SANGSTER, M.D., Appellant,v.KENTUCKY BOARD OF MEDICAL LICENSURE, Appellee.
• Court: Kentucky Court of Appeals

345 S.W.3d 853

David P. SANGSTER, M.D., Appellant,

v.KENTUCKY BOARD OF MEDICAL LICENSURE, Appellee.

No. 2009–CA–002277–MR.

Court of Appeals of Kentucky.

Oct. 29, 2010.Case Ordered Published by

Court of Appeals Dec. 17, 2010.

Rehearing Denied March 4, 2011.

Discretionary Review Denied by

Supreme Court Sept. 15, 2011.

J. Fox DeMoisey, Louisville, KY, for appellant.Leanne K. Diakov, Louisville, KY, for appellee.Before ACREE, Judge; HENRY and ISAAC,¹ Senior Judges.

OPINION

ISAAC, Senior Judge:

David P. Sangster, M.D. appeals from an order of the Jefferson Circuit Court authorizing the Kentucky Board of Medical Licensure (KBML) to utilize and disclose as evidence a Kentucky All Schedule Prescription Electronic Reporting (KASPER) report in the pending administrative action against Dr. Sangster. For the following reasons, we affirm.

KASPER is an electronic system that monitors the dispensing of controlled substances and is maintained by the Drug Enforcement and Professional Practices Branch of the Cabinet for Health and Family Services (Cabinet). Persons licensed to prescribe controlled substances are required to provide the Cabinet with the drug dispensed, date of dispensing, quantity dispensed, prescriber, dispenser, and patient identifying information.

In August 2007, a grievance was filed with the KBML alleging that Dr. Sangster deviated from the acceptable and prevailing medical practices by prescribing controlled substances to a patient causing her death. The KBML initiated an investigation and obtained a copy of a KASPER Report detailing Dr. Sangster's prescriptions for all patients from January 18, 2007, to January 18, 2008.

The KBML requested the Cabinet to analyze Dr. Sangster's prescriptions for this period. In doing so, the Cabinet identified an additional ten patients it believed warranted further investigation. A KBML consultant, who is a licensed medical doctor, reviewed the charts on each patient and the KASPER report and concluded that Dr. Sangster deviated from the acceptable and prevailing medical practices. As a result, the KBML filed a complaint and emergency order of suspension against Dr. Sangster's medical license. An emergency hearing was held, and the KBML's suspension was upheld.

An administrative hearing was scheduled for November 5, 2009. In September 2009, the KBML sought Dr. Sangster's signature to an agreed order that would allow the KBML to provide Dr. Sangster with the KASPER report it had relied upon and enter that report into evidence, under seal, at the hearing. Dr. Sangster refused to sign the agreed order.

On October 1, 2009, the KBML filed a petition for declaration of rights requesting the trial court to issue an order allowing the “utilization and disclosure of KASPER data (including reports), under seal ... by its Board consultant in the administrative hearing.” Dr. Sangster filed a cross-petition for declaration of rights requesting the court to issue a declaratory judgment holding the KASPER report and data may be provided by the Cabinet to the KBML, “but only to a (singular) ‘designated representative of the Board,’ ” not to any other person within the KBML, including “an engaged physician/consultant.”

The court entered an order “that the [KBML] and its agents, representatives and consultants may utilize and disclose as evidence the [KASPER] Report.” The KASPER report was made available to Dr. Sangster, and was admitted into evidence, under seal, in the November administrative hearing. Dr. Sangster moved the court to amend the order to designate it final and appealable, which the court granted. This appeal followed.

Dr. Sangster argues, pursuant to KRS 218A.202, that the trial court erred by allowing the KASPER report to be utilized by more than one designated representative of the KBML and to be introduced into evidence at the administrative hearing. We disagree.

As an initial matter:

Before the processes of CR ² 54.02 may be invoked for the purpose of making an otherwise interlocutory judgment final and appealable, there must be a final adjudication upon one or more of the claims in litigation. The judgment must conclusively determine the rights of the parties in regard to that particular phase of the proceeding.

Hale v. Deaton, 528 S.W.2d 719, 722 (Ky.1975). Since Dr. Sangster's claims regarding the disclosure of KASPER reports under KRS 218A.202 were conclusively determined in the trial court order, the order is both final and appealable. Therefore, we will review the merits of Dr. Sangster's claims, and “review questions of statutory construction de novo.” Ky. Employees Ret. Sys. v. Foster, 272 S.W.3d 198, 200 (Ky.App.2007) (citation omitted).

KRS 218A.202, provides, in relevant part:

(6) The Cabinet for Health and Family Services shall only disclose data to persons and entities authorized to receive that data under this section. Disclosure to any other person or entity, including disclosure in the context of a civil action where the disclosure is sought either for the purpose of discovery or for evidence, is prohibited unless specifically authorized by this section. The Cabinet for Health and Family Services shall be authorized to provide data to:

(a) A...