State ex rel. Walker v. Bergman

• Decision Date: 13 May 1988
• Docket Number: No. 61456,61456
• Citation: State ex rel. Walker v. Bergman, 755 P.2d 557, 12 Kan.App.2d 695 (Kan. App. 1988)
• Parties: STATE of Kansas, ex rel. Jack D. WALKER, M.D., Secretary of Health and Environment, Appellee, v. Paul H. BERGMAN, Alban Haug, and Eugene E. Haug, a partnership, d/b/a Crestview Manor, Appellants.
• Court: Kansas Court of Appeals

Page 557

755 P.2d 557

12 Kan.App.2d 695

STATE of Kansas, ex rel. Jack D. WALKER, M.D., Secretary of Health and Environment, Appellee, v.Paul H. BERGMAN, Alban Haug, and Eugene E. Haug, a partnership, d/b/a Crestview Manor, Appellants.

No. 61456.

Court of Appeals of Kansas.

May 13, 1988.

Review Denied Sept. 27, 1988.

Syllabus by the Court

1.Injunction is an equitable remedy and its grant or denial in each case is governed by the principles of equity.The granting or denial of an injunction is discretionary.Absent an abuse of discretion, the appellate court does not normally interfere.

2.An administrative agency's interpretation of its regulations will not be disturbed on appeal unless the interpretation is clearly erroneous or inconsistent with the regulations.

3.The residents' bill of rights, K.A.R. 28-39-78, requires an adult care home licensed by the Kansas Department of Health and Environment to assure its residents "their rights as persons and citizens," including the rights to be informed of a medical condition by a physician unless medically contraindicated, to participate in planning medical treatment, to refuse examination or treatment, and to privacy.

4.The right of each resident to choose a personal attending physician is implicit in the residents' bill of rights.K.A.R. 28-39-78.

5.A resident of an adult care home shall be discharged from the facility involuntarily only for (1) medical reasons, (2) the welfare of the resident or others, or (3) nonpayment of rates and charges.K.A.R. 28-39-78(a)(3).

6.The trial court did not abuse its discretion by enjoining Crestview Manor, an intermediate care facility licensed by the Kansas Department of Health and Environment, from revoking the staff privileges of a local physician and requiring the physician's patients either to choose another physician or move from the facility.The trial court properly concluded that the reasons given by Crestview Manor for its actions did not justify denying residents the right to choose a personal attending physician.

Eugene T. Hackler of Hackler, Londerholm, Corder, Martin & Hackler, Chartered, Olathe, for appellants.

Frank W. Layman of the Kansas Dept. of Health and Environment, Topeka, for appellee.

Before DAVIS, P.J., and LARSON and GERNON, JJ.

DAVIS, Judge:

This is an appeal from a permanent injunction issued against the owners and operators of Crestview Manor Nursing Home (collectively referred to as "Crestview Manor") requiring them to allow Terry McGeeney, M.D., to continue treating patients residing at the home.Crestview Manor revoked Dr. McGeeney's privilege to practice medicine because he allegedly refused to abide by its operating policies.The Kansas Department of Health and Environment(KDHE) filed this action on behalf of Dr. McGeeney's patients, who had been advised by Crestview Manor to choose another physician or move from the home.

In a well-reasoned opinion, the trial court based its permanent injunction upon the right of each resident to choose his or her personal physician, carefully balancing the residents' interests in exercising this right with Crestview Manor's interests in resident care and in maintaining smooth and consistent administration of health services.We find no abuse of discretion and affirm.

Injunction is an equitable remedy and its grant or denial in each case is governed by the principles of equity.The granting or denial of an injunction is discretionary.Absent an abuse of discretion, the appellate court does not normally interfere.U.S.D. No. 503 v. McKinney, 236 Kan. 224, 226-27, 689 P.2d 860(1984);Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 668 P.2d 172(1983);Southeast Kansas Landowners Ass'n v. Kansas Turnpike Auth., 224 Kan. 357, 373, 582 P.2d 1123(1978);Kansas State Bd. of Pharmacy v. Wilson, 8 Kan.App.2d 359, 657 P.2d 83(1983).

KDHE, the licensing agency for adult care homes in Kansas, administers the adult care home licensure act, K.S.A. 39-923 et seq., and enforces the rules and regulations promulgated thereunder.K.A.R. 28-39-76 et seq.

Crestview Manor is a licensed intermediate care facility (ICF) subject to the adult care home licensure act.Any ICF receiving Medicaid funds must also conform to 42 C.F.R. § 442.1 et seq.(1987), authorized under 42 U.S.C. § 1302(1982).K.A.R. 28-39-78 and 42 C.F.R. § 442.311(1987), which are essentially identical, set forth the residents' bill of rights.

The present controversy arose when Terry McGeeney, M.D., requested that all laboratory procedures for his patients at Crestview Manor be performed at his office.Crestview Manor informed Dr. McGeeney that services in his office-run laboratory did not meet Crestview Manor's quality of care policies because the laboratory was not certified.The letter stated, "Effective April 5, 1987, your privilege to practice medicine at Crestview Manor is revoked."

On March 18, 1987, Crestview Manor notified Dr. McGeeney's patients at the facility that Dr. McGeeney's privilege to practice medicine at Crestview Manor had been revoked.The letter stated: "If he/she/you choose to retain Dr. McGeeney, it will be necessary to move from Crestview Manor on or before April 4, 1987....Any resident who is currently under Dr. McGeeney's service and does not move from Crestview Manor or make arrangements for another physician by April 4, 1987, will be transferred to the service of our Medical Director."

The legal representative of one of Dr. McGeeney's patients at Crestview Manor filed a complaint with KDHE.Concern was expressed about the effect on the resident's health and welfare of being required to change physicians or move to a different nursing home.

By letter dated March 27, 1987, KDHE notified Crestview Manor that the March 18, 1987, letter to its residents was in violation of rules and regulations governing the operation of adult care homes.KDHE interpreted its regulations to forbid licensees of adult care homes from involuntarily discharging a resident except for medical reasons, for the welfare of the resident or others, or for nonpayment of rates and charges, and to require licensees of adult care homes to assure each resident the right to choose a personal physician.

In a response, Crestview Manor defended its decision to deny Dr. McGeeney practice privileges and to require his patients to find another physician or move.Crestview Manor alleges that Dr. McGeeney has been uncooperative with staff, delinquent in his care of patients, derogatory about the care at Crestview Manor in his medical record entries, and lax in keeping patients' records.

On April 3, 1987, KDHE filed this action, requesting that the court enjoin Crestview Manor from requiring residents to choose between using a physician other than the physician of their choice or moving from the facility.KDHE requested and received an ex parte restraining order.

On April 17, 1987, the matter was heard by the district court.The parties agreed that the case could be decided on stipulated facts.Both parties filed briefs.

On June 24, 1987, the district court permanently enjoined Crestview Manor from enforcing the terms of its March 18, 1987, letter to its residents or in any way requiring existing residents of Crestview Manor to utilize a physician other than the physician of their choice.

The district court held that an ICF resident's right to choose his or her personal physician is protected by the guarantees set forth in the residents' bill of rights.The residents' bill of rights requires the licensee to assure residents "their rights as persons and citizens," including the rights to be informed of a medical condition by a physician unless medically contraindicated, to participate in planning medical treatment, and to refuse examination or treatment, K.A.R. 28-39-78(a)(2), and the right to privacy, K.A.R. 28-39-78(a)(9).

The court found that any one of these guarantees was broad enough to encompass and protect a resident's choice of a personal physician.The court concluded that "an ICF must protect the residents' right to choose a physician and cannot require a resident to change physicians unless some interest of the ICF is so overwhelming that an exception to the resident's right is appropriate."

The court balanced the interests of Crestview Manor residents in exercising the right to choose a personal physician with Crestview Manor's interests in resident care and in maintaining smooth and consistent administration of services.The court recognized three instances in which an ICF's interests may override a resident's right to treatment by a physician of his or her choice.First, the court indicated that the interest of an ICF in preserving its residents' lives may override the right to choose a physician.The court, however, found, "In the present case, nothing before the Court shows that Dr. McGeeney's patients were in danger of losing their lives because of his treatment."Second, the court noted that an ICF has an interest in protecting innocent third parties, but found that the protection of third parties was not a concern in this case.Third, the court recognized that an ICF has an interest in setting internal standards and procedures, "but it would be a rare case where a physician['s] refusal would require an ICF to ignore a resident's protected right to choose a physician."

In granting the injunction, the trial court adopted KDHE's interpretation of its regulations.According to KDHE, the right of each resident to choose his or her own physician is implicit in the residents' bill of rights, K.A.R. 28-39-78.This interpretation finds support in recent changes in federal law governing nursing homes that receive Medicare and Medicaid funds:

"(c) REQUIREMENTS RELATING TO RESIDENTS' RIGHTS.--

(1) GENERAL RIGHTS.--

(A) SPECIFIED RIGHTS.--A skilled nursing facility must protect and promote the rights of each resident, including each of the following rights:

(i) FREE...