Thompson v. Medical Licensing Bd.

Decision Date25 April 1979
Docket NumberNo. 2-1076A395,2-1076A395
Citation389 N.E.2d 43,180 Ind.App. 333
PartiesW. Turton THOMPSON, Appellant (Plaintiff Below), v. MEDICAL LICENSING BOARD of Indiana and Ernest R. Beaver, James N. Hampton, Robert R. Kopecky, John H. Mader, Walter J. Beneville, Bruce C. Brink, and Edward L. Hollenberg, Individually and as Members of the Medical Licensing Board of Indiana, Appellees (Defendants Below).
CourtIndiana Appellate Court

C. Robert Knight, Zionsville, Ronald E. Elberger, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Asst. Atty. Gen., Indianapolis, for appellees.

BUCHANAN, Chief Judge.


Dr. W. Turton Thompson (Dr. Thompson) appeals from dismissal of his complaint for an injunction and a declaratory judgment against the Medical Licensing Board of Indiana (Board) which sought to have his medical license revoked, claiming the trial court erred in dismissing his complaint because of failure to exhaust administrative remedies, constitutional infirmities in the medical licensing statutes, and denial of due process for refusal of discovery.

We affirm.


On October 23, 1975, Dr. Robert R. Kopecky, Secretary of the Board, filed a complaint against Dr. Thompson seeking to revoke or suspend his medical license or that he be placed on probation for violating sections 5 and 6 of Ind.Code 25-22.5-6-2. It specifically charged that Dr. Thompson:

(1) illegally and knowingly issued prescriptions for Schedule II Controlled Substances, desoxyn and quaalude, and Schedule IV Controlled Substance, dalmane, to female patients for non-therapeutic purposes in exchange for sexual acts with these patients performed at his office;

(2) committed willful and wanton misconduct in the practice of medicine by illegally and knowingly issuing prescriptions for Schedule II Controlled Substances, desoxyn and quaalude, and Schedule IV Controlled Substance, dalmane, to female patients for non-therapeutic purposes in exchange for sexual acts with these patients performed at his office.

The Board set a hearing for November of 1975, to resolve these charges, but the hearing was twice continued by Dr. Thompson. Shortly before the new hearing date of February 12, 1976, Thompson retained new counsel and again sought a continuance which was denied. On February 11, 1976, he filed a complaint in Marion Superior Court seeking an injunction to delay the hearing and a declaratory judgment that the scheduled hearing would violate several constitutional guarantees. The violations he specifically alleged included the following:

a.) Thompson would be judged by Kopecky who is the complaining party;

b.) The complaint unlawfully incorporated by reference the provisions of other statutory provisions;

c.) It was unconstitutional to be tried before administrators who were not attorneys;

d.) He was prevented from deposing Board members in an attempt to find bias;

e.) Deputy attorney generals served the dual functions of prosecutor at the hearing and advisor to the Board on legal questions;

f.) The statute was unconstitutionally vague.

In order to support his suit seeking extraordinary relief Thompson asserted that allowing the Board to proceed with the hearing "could result in an improvident adjudication of guilt, the effects of which could not be vindicated after the proceeding took place." Concluding that he did not have adequate post-administrative hearing remedies regarding these constitutional issues he raised, he asserted that the trial court should intervene to protect him from suffering an irreparable harm. 1

The State filed a Motion to Dismiss the suit claiming that Dr. Thompson should be required to exhaust the adequate administrative remedies available to him and that he should not be allowed to interfere with the administrative process.

During the course of the court proceedings Dr. Thompson claimed "bias and prejudice" on the part of the members and sought to depose them individually, a move which was thwarted by a protective order entered by the trial court on May 28.

On June 14, 1976, the trial court entered the following judgment on the State's motion:

. . . it is . . . ORDERED that defendant's (Board's) motion to dismiss be, and is hereby, GRANTED upon the ground that the plaintiff has failed to exhaust his administrative remedies before the Medical Licensing Board of Indiana. Accordingly, it is the judgment of this Court that plaintiffs' verified complaint be, and is hereby, DISMISSED, each party to bear its own costs in the action . . . .

Dr. Thompson sought and received an Injunction and Stay Pending Appeal, and appealed the trial court's decision to this Court.


Because our holding is that the trial court properly dismissed Dr. Thompson's complaint for failing to exhaust his administrative remedy, we need only decide the following issue:

Did the trial court properly dismiss Dr. Thompson's action for an injunction and a declaratory judgment on the ground that he failed to exhaust his administrative remedies before filing suit?

PARTIES' CONTENTIONS Dr. Thompson contends that although the principle of exhaustion of administrative remedies is a general rule, he should be allowed to bypass the normal review procedure because he has raised pure "questions of law" concerning constitutional issues. Unless he is permitted preliminary review of these questions, his professional reputation might suffer irreparable harm.

The State replies that Dr. Thompson has an adequate procedure for consideration of these issues under the Administrative Adjudication Act (Ind.Code 4-22-1-1 et seq.). As he has failed to demonstrate how he might be irreparably harmed by resorting to review under the AAA, the trial court correctly denied his extraordinary relief.


CONCLUSION The trial court properly dismissed this action because Dr. Thompson failed to follow the administrative review procedure of the Administrative Adjudication Act.


By enacting the Administrative Adjudication Act (the Act) in 1947, the Indiana legislature recognized the basic need for unfettered action by administrative agencies operating within the sphere of their authority. Uhlir v. Ritz (1970), 255 Ind. 342, 264 N.E.2d 312; Indiana Alcoholic Beverage Com'n v. McShane (1976), Ind.App., 354 N.E.2d 259.

The unmistakable aim of a uniform system of orderly review of administrative adjudications in Indiana is declared in the first section of the Act:

It is the intent To establish a uniform method of administrative adjudication by all agencies of the state of Indiana, to provide for due notice and an opportunity to be heard and present evidence before such agency And to establish a uniform method of court review of all such administrative adjudication. (emphasis supplied) Ind.Code 4-22-1-1.

That such court review of administrative action affecting legal relationships is intended to be exclusive, if more is needed, is emphasized by the explicit language of Section 3 of the Act:

In Every administrative adjudication in which the rights, duties, obligations, privileges or other legal relations of any person are required or authorized by statute to be determined by any agency The same shall be made in accordance with this act and not otherwise. (emphasis supplied) Ind.Code 4-22-1-3.

Also indicative of this same intent is Section 30 invalidating any conflicting legislation:

The provisions of this act shall supersede or control the provisions of any general or special act or part of act in conflict herewith, passed by this general assembly, regardless of whether such act or acts were passed before or after the effective date (March 14, 1977) of this act.

Particularizing the grounds for review of administrative action is Section 14, which, after setting forth five grounds for review, significantly then terminates all rights of recourse to the courts unless the review procedure is followed. In pertinent part Section 14 says:

Any party or person aggrieved by any order or determination made by any such agency shall be entitled to a judicial review thereof in accordance with the provisions of this act (4-22-1-1 4-22-1-30). Such review may be had by filing with the circuit or superior court of the county in which such person resides, or in any county in which such order or determination is to be carried out or enforced a verified petition setting out such order, decision or determination so made by said agency, and alleging specifically wherein said order, decision or determination is:

(1) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or

(2) Contrary to constitutional right, power, privilege or immunity; or

(3) In excess of statutory jurisdiction, authority or limitations, or short of statutory right; or

(4) Without observance of procedure required by law; or

(5) Unsupported by substantial evidence.

Said petition for review shall be filed within fifteen (15) days after receipt of notice that such order, decision or determination is made by any such agency. Notice shall be given in the manner prescribed by section 6 (4-22-1-6) of this act. Unless a proceeding for review is commenced by so filing such petition within fifteen (15) days any and all rights of judicial review and all rights of recourse to the courts shall terminate. (emphasis supplied)

So the Act restricts access to the courts even though the administrative agency takes action affecting "rights, duties, obligations, privileges or other legal relations" (Section 3). And this broad statement includes constitutional rights, duties, and privileges inasmuch as the second stated ground for review of an order, decision, or determination is that the action taken is "contrary to constitutional right, power, privilege . . .".

The thrust of the Act is that the exclusive path to the courts is By review. The administrative process is not to be disrupted and...

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