Vakas v. Kansas Bd. of Healing Arts

• Decision Date: 12 April 1991
• Docket Number: No. 65552,65552
• Citation: 248 Kan. 589,808 P.2d 1355
• Parties: John L. VAKAS, Appellant, v. The KANSAS BOARD OF HEALING ARTS, Appellee.
• Court: Kansas Supreme Court

Page 1355

808 P.2d 1355

248 Kan. 589

John L. VAKAS, Appellant, v. The KANSAS BOARD OF HEALING ARTS, Appellee.

No. 65552.

Supreme Court of Kansas.

April 12, 1991.

Syllabus by the Court

1. The stated purpose of the Healing Arts Act, K.S.A. 65-2801 et seq., is to protect the public "against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional conduct by persons licensed to practice under this act."

2. Factors to be considered in determining whether a license to practice medicine should be reinstated include: (1) the present moral fitness of the petitioner; (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession; (3) the extent of petitioner's rehabilitation; (4) the nature and seriousness of the original misconduct; (5) the conduct subsequent to discipline; (6) the time elapsed since the original discipline; (7) the petitioner's character, maturity, and experience at the time of the original revocation; and (8) the petitioner's present competence in medical skills.

3. The conduct which results in the revocation of a license to practice medicine and surgery may be so serious in and of itself as to preclude reinstatement.

4. The scope of appellate review of a Board of Healing Arts' action is to determine if the district court reviewed the action in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The party asserting invalidity of the Board's action has the burden of proving the invalidity.

5. If agency action is constitutionally authorized by statute, it is presumed valid on review unless it is not supported by substantial competent evidence and is so wide of its mark as to be outside the realm of fair debate, or is otherwise unreasonable, arbitrary, or capricious and prejudices the parties.

6. Under the facts of this case, there is substantial competent evidence to support the Board of Healing Arts' denial of appellant's application for reinstatement.

7. Standards to guide an administrative agency in application of a statute may be implied from the statutory purpose.

8. Less detailed standards and guidance to administrative agencies is required in order to facilitate the administration of laws in areas of complex social and economic problems.

9. The Healing Arts Act, K.S.A. 65-2801 et seq., read in its entirety, contains sufficient guidance from the legislature to enable the Board of Healing Arts to exercise its discretion in determining whether to reinstate an individual to the practice of medicine and surgery and, therefore, does not violate Article 2, § 1 of the Kansas Constitution.

Larry Wall of law offices of Larry Wall, Wichita, and Joseph Seiwert of the same firm, argued the cause and were on the brief for appellant.

Steve A. Schwarm, Litigation Counsel for the Kansas Bd. of Healing Arts, argued the cause, and Lawrence T. Buening, Jr., Gen. Counsel, and Michelle T. Torres, Disciplinary Counsel of the same agency, were with him on the brief for appellee.

ALLEGRUCCI, Justice:

The Kansas Board of Healing Arts (Board) revoked appellant John L. Vakas' license to practice medicine and surgery. He applied for reinstatement. When reinstatement was denied, appellant asked for reconsideration, which was also denied. Appellant then filed a petition for judicial review; the district court upheld the Board's action, and this appeal followed.

Appellant was originally granted a license to practice medicine by the Board on January 15, 1966. On October 11, 1985, the Board issued an order of emergency limitation of license, prohibiting appellant from selling, dispensing, administering, and prescribing controlled substances designated or controlled by the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq. A presiding officer, designated pursuant to the Administrative Procedure Act, K.S.A. 77-501 et seq., issued an initial order on January 4, 1988, which recommended that the appellant be suspended from the practice of medicine for a period of five years beginning October 11, 1985, and that, following suspension, he not be allowed to prescribe controlled substances.

On February 6, 1988, the Board conducted a hearing to reconsider the initial order. In its final order, which was filed May 6, 1988, the Board accepted many of the findings of fact and conclusions of law from the initial order. Due to the seriousness of appellant's professional incompetence and unprofessional conduct, however, his license to practice medicine and surgery was revoked. Revocation rather than suspension of appellant's license enabled him to apply for reinstatement after one year. K.S.A.1990 Supp. 65-2844. On August 25, 1989, appellant filed an application for reinstatement of his license. A hearing was held on October 14, 1989, where the Board determined that appellant's license to practice medicine should not be reinstated. A final order setting forth the findings of fact and conclusions of law which formed the basis for the Board's action was served on appellant on November 20, 1989. Appellant's petition for reconsideration was denied.

On January 16, 1990, appellant filed a petition for judicial review pursuant to K.S.A. 77-621(c), asserting the following three grounds: (1) The Board denied appellant's motion in order to punish him and did not evaluate his application impartially; (2) the Board's findings of fact were not supported by substantial evidence when viewed in light of the record as a whole; and (3) the Board's action was unreasonable, arbitrary, and capricious because it did not give due weight to appellant's attempts at rehabilitation. Appellant challenged the constitutionality of the statute for the first time in his trial brief submitted on April 10, 1990. In a memorandum decision filed June 1, 1990, the court denied the petition for judicial review and entered judgment on behalf of the Board and against appellant.

The appellant first argues that the legislature violated Article 2, § 1 of the Kansas Constitution in delegating power to determine whether a medical license should be reinstated without setting forth the appropriate guidance. Article 2, § 1 of the Kansas Constitution provides: "The legislative power of this state shall be vested in a house of representatives and senate." The question we must decide is whether this provision of the constitution is violated by K.S.A.1990 Supp. 65-2844, which provides:

"Reinstatement of license; application; rules and regulations. At any time after the expiration of one year, application may be made for reinstatement of any licensee whose license shall have been revoked, and such application shall be addressed to the board. The board may adopt such rules and regulations concerning notice and hearing of such application as considered necessary."

The Healing Arts Act, which is found at K.S.A. 65-2801 et seq., provides a comprehensive scheme to regulate those involved in the practice of the healing arts. The purpose of the Act is stated as follows:

"Recognizing that the practice of the healing arts is a privilege granted by legislative authority and is not a natural right of individuals, it is deemed necessary as a matter of policy in the interests of public health, safety and welfare, to provide laws and provisions covering the granting of that privilege and its subsequent use, control and regulation to the end that the public shall be properly protected against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional conduct by persons licensed to practice under this act." K.S.A. 65-2801.

The Board administers the provisions of the Healing Arts Act. K.S.A.1990 Supp. 65-2812. Qualifications of the 15-member Board are specified by statute to include five doctors of medicine, three doctors of osteopathy, three doctors of chiropractic, one podiatrist, and three representatives of the general public. K.S.A.1990 Supp. 65-2813.

The Healing Arts Act sets out the application and examination procedures for those who wish to be licensed in the healing arts. K.S.A. 65-2824 to -2833. The Act also lists 30 grounds that may be the basis for which a licensee's license may be revoked, suspended, or limited, or for which a licensee may be publicly or privately censured. K.S.A.1990 Supp. 65-2836. Here, appellant's license was revoked on grounds that he "has committed an act of unprofessional or dishonorable conduct or professional incompetency." K.S.A.1990 Supp. 65-2836(b). The term "professional incompetency" is defined as follows:

"(1) One or more instances involving failure to adhere to the applicable standard of care to a degree which constitutes gross negligence, as determined by the board.

"(2) Repeated instances involving failure to adhere to the applicable standard of care to a degree which constitutes ordinary negligence, as determined by the board.

"(3) A pattern of practice or other behavior which demonstrates a manifest incapacity or incompetence to practice medicine." K.S.A.1990 Supp. 65-2837(a).

The definition of "unprofessional conduct" lists 28 different acts, but the 2 relevant to this case are found at K.S.A.1990 Supp. 65-2837(b):

"(11) Prescribing, ordering, dispensing, administering, selling, supplying or giving any amphetamines or sympathomimetic amines, except as authorized by K.S.A. 65-2837a and amendments thereto.

....

"(23) Prescribing, dispensing, administering, distributing a prescription drug or substance, including a controlled substance, in an excessive, improper or inappropriate manner or quantity or not in the course of the licensee's professional practice."

The grounds for the revocation of appellant's license are set forth in the final order, filed May 6, 1988, and can be summarized as follows: administering or prescribing controlled substances in antagonistic, irrational, or illogical combinations; failing...