APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 06-CI-005099
The opinion of the court was delivered by: Keller, Judge:
RENDERED: APRIL 5, 2013; 10:00 A.M.
BEFORE: KELLER,*fn1 STUMBO AND THOMPSON, JUDGES.
Dr. John L. Doyle III (Doyle) appeals from the trial court's denial of his Kentucky Rules of Civil Procedure (CR) 60.02 motion to set aside the dismissal of his petition for judicial review of an order from the Kentucky Board of
Medical Licensure (the Board) suspending and indefinitely restricting his license. On appeal, Doyle argues that the trial court abused its discretion when it denied his motion. Having reviewed the record from the proceedings before the Board, the record from the proceedings before the circuit court, and the arguments of the parties, we affirm.
In June 2003, Doyle's medical associates advised the Board that they had concerns about Doyle's practice. They alleged that Doyle had been late reporting to work; had occasionally missed work; did not adequately maintain his records; used alcohol during office hours; and experienced "mood swings." Following an investigation, the Board issued a complaint in March 2004 setting forth the above allegations. The Board also alleged that one of its consultants had noted borderline to below standard record keeping; that Doyle had pled guilty to DUI in 2001 and had been arrested and charged with DUI in 2002; that Doyle had undergone several evaluations for substance abuse; and that substance abuse evaluators found evidence of possible alcohol abuse and/or dependence. Based on the preceding, the Board stated that Doyle had violated Kentucky Revised Statutes (KRS) 311.595(7), (8), (10), and (9), and it issued an emergency order of suspension.
In his answer, Doyle admitted that he had voluntarily entered into a substance abuse contract with the Kentucky Physicians Health Foundation; however, he denied a substance abuse problem. Doyle also denied the other allegations and filed a counterclaim arguing the emergency suspension violated his due process rights and that it was unlawful.
Following a hearing, a hearing officer found that there was substantial evidence that Doyle was a persistent and chronic alcoholic and that his record keeping was less than adequate. However, the hearing officer concluded that Doyle did not pose an immediate danger to the health, safety, or welfare of his patients or the general public. Therefore, the hearing officer recommended that the emergency suspension be modified to an emergency order of restriction, a recommendation the Board apparently adopted. Doyle then filed a motion in the circuit court seeking injunctive relief from the Board's order pending a final hearing. The court granted that relief.
Just prior to the final hearing, the Board and Doyle entered into settlement negotiations. They nearly reached an agreement; however, counsel for the parties could not agree regarding the inclusion of language indicating that no disciplinary action had occurred and that Doyle's license was not being "restricted." Therefore, the parties were unable to resolve the matter through settlement, and they proceeded to participate in a hearing that stretched over eighteen days and several months.
Following the hearing, the hearing officer rendered an eighty-five-page recommended order in which he determined, in pertinent part, that Doyle: was a persistent and chronic alcoholic; had failed to adequately document and maintain patient records; had knowingly made false statements in those records; and had prescribed medication for his girlfriend. Additionally, the hearing officer found that Doyle's treatment fell below acceptable medical practice. Based on these findings, the hearing officer recommended that Doyle be permitted to continue practicing but with indefinite restrictions on his license.
Doyle and counsel for the Board filed exceptions to the hearing officer's recommended order. Doyle argued in his exceptions that he had been denied due process and that the hearing officer's findings were not supported by the evidence. Counsel for the Board argued in his exceptions that Doyle's license should be revoked. The Board adopted the hearing officer's recommended findings of fact and his recommendation of indefinite restrictions. However, the Board chose to suspend Doyle's license for three months. Additionally, the Board required Doyle to pay the costs of the proceedings, which it stated amounted to $25,025.
Doyle then filed a petition for judicial review and an action for declaratory judgment in the Jefferson Circuit Court, which was assigned to Division Seven (the suspension petition). In the suspension petition, Doyle continued to argue that the Board's findings were not supported by evidence of substance. Additionally, Doyle argued that various provisions of KRS Chapters 13B and 311 are unconstitutional; that the Board's actions amounted to misconduct; and that he was entitled to conduct discovery regarding the alleged misconduct. In its response, the Board argued that Doyle's action was simply a request for judicial review and that discovery was not appropriate.
In February 2007, while Doyle's suspension petition was pending, the Board issued a complaint alleging that Doyle had not paid any of the $25,025 he had been ordered to pay. Following a hearing, during which Doyle conceded that he had not made any payments, a hearing officer concluded that Doyle lacked the funds to do so. However, the hearing officer did not excuse Doyle's failure to pay, noting that Doyle made no attempt to advise the Board of his inability to make payments or to make alternative payment arrangements. The Board adopted the hearing officer's findings and, based on those findings, revoked Doyle's license. Doyle filed a petition for judicial review of that revocation order, which was assigned to Division One of the Jefferson Circuit Court (the revocation petition).
While the petitions were pending in circuit court, Doyle moved to the Solomon Islands, where he practiced medicine and met his current wife. In late 2007 or early 2008, Doyle returned to Kentucky with his wife and her children. Doyle's wife and stepchildren, who were not United States citizens, were in the country as lawful permanent residents. In order for them to maintain that status, Doyle was required to provide an affidavit stating that he could support them.
After returning to Kentucky, Doyle began exploring ways to reinstate his license to practice medicine. To that end, Doyle sought assistance from Dr. Glenn Womack (Dr. Womack). In May 2008, Dr. Womack sent a letter to Doyle's counsel, J. Fox DeMoisey (DeMoisey). In his correspondence, Dr. Womack indicated that he was willing to assist Doyle in getting his license reinstated. DeMoisey forwarded that letter to counsel for the Board, C. Lloyd Vest II (Vest).
With Dr. Womack's assistance, Doyle completed a number of assessments/courses/seminars during 2008 and early 2009. In March 2009, the Board and Doyle entered into an agreed order amending the revocation and suspension orders in order to permit Doyle to practice as a physician's assistant. Doyle believed that, if he fulfilled all of the training and assessment requirements and had no problems practicing as a physician's assistant, the Board would fully reinstate his license at the earliest date possible, November 2009.
While Doyle was working with the Board and Dr. Womack to get his license fully reinstated, the Division Seven circuit court ruled that he had made a prima facie case that the Board had engaged in misconduct with regard to the suspension proceedings. Specifically, the court stated that there was sufficient evidence of misconduct to permit Doyle to conduct discovery regarding the Board's finding of alcoholism and the way it conducted settlement negotiations. Approximately seven months after the court entered that order, Doyle filed a motion to reconsider, asking the court to permit additional discovery, and a motion to consolidate the suspension and revocation petition actions. Thereafter, the Board filed a motion to reconsider, asking the court to set aside its order permitting discovery. On July 1, 2008, the court denied Doyle's motion to consolidate and granted the Board's motion to set aside the order permitting discovery.*fn2 In doing so, the court noted that Doyle was attempting to litigate issues regarding alleged misconduct within a petition for judicial review. The court could not find any authority, and Doyle had cited to no authority, that would permit Doyle to do so. Because the court did not believe the issue of misconduct was properly before it, the court saw no need to permit discovery.
In October 2009, Vest advised Doyle that the Board would likely be amenable to entering into an agreed order fully reinstating his license at the November 2009 meeting. However, before the Board would agree to do so, Doyle would have to dismiss the suspension and revocation petitions that were still pending in circuit court. Doyle consulted with DeMoisey and, although DeMoisey advised him not to do so, Doyle agreed to dismiss those petitions. DeMoisey then withdrew as counsel and Doyle, pro se, dismissed the petitions. The Board then fully reinstated Doyle's license, and he has practiced medicine since then.
One year after Doyle dismissed the petitions for review, he filed a CR 60.02 motion to set aside the dismissal of the suspension petition.*fn3 In his motion, Doyle argued that the dismissal had been obtained through fraud and duress. Doyle also argued that he should be ...