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Strauss v. Kentucky Board of Medical Licensure

Court of Appeals of Kentucky

May 12, 2017

JON M. STRAUSS, M.D. APPELLANT
v.
KENTUCKY BOARD OF MEDICAL LICENSURE APPELLEE

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE ACTION NO. 10-CI-007765

          BRIEFS FOR APPELLANT: J. Fox DeMoisey Louisville, Kentucky.

          BRIEF FOR APPELLEE: Leanne K. Diakov General Counsel Kentucky Board of Medical Licensure Louisville, Kentucky.

          BEFORE: COMBS, MAZE AND STUMBO, JUDGES.

          OPINION

          STUMBO, JUDGE.

         Jon Strauss, M.D., appeals from an order of the Jefferson Circuit Court which affirmed an order of the Kentucky Board of Medical Licensure (hereinafter referred to as "the Board"). The Board's order adopted in toto a recommended order, which set forth findings of fact and conclusions of law, from a hearing officer. The Board's order also placed Dr. Strauss on probation for five years and subjected his medical license to various terms and conditions. Dr. Strauss argues that the Board's order should be reversed because the Board and hearing officer violated certain sections of the Kentucky Revised Statutes. We agree and reverse and remand.

         Between 2007 and 2009, the Board issued four complaints against Dr. Strauss alleging various infractions. Investigations ensued, ultimately leading to administrative hearings being held by a hearing officer during this period. The hearings concluded on May 27, 2010. In August of 2010, the hearing officer entered a recommended order which set forth his findings of fact and conclusions of law. The hearing officer found Dr. Strauss had violated three statutes in relation to his medical practice. The officer did not suggest an appropriate remedy, but stated that the Board should "take any appropriate action against his license for those violations."

         Dr. Strauss and counsel for the Board timely filed exceptions to the hearing officer's recommendations. The Board then reviewed the fourth complaint, the hearing officer's recommended order, and the exceptions. The Board also heard arguments from counsel. On September 29, 2010, the Board adopted the hearing officer's findings of fact, conclusions of law, and recommended order, without revision, and ordered a five-year probationary period for Dr. Strauss.

         On November 3, 2010, Dr. Strauss filed a petition for judicial review with the Jefferson Circuit Court. Dr. Strauss argued that the order of probation was void because the hearing officer and the Board did not follow certain statutory requirements. Multiple motions, responses, and arguments were heard by the circuit court. The court eventually held a hearing on July 25, 2014. On April 2, 2015, the court entered an order which affirmed the Board's order of probation. The court's order held that the Board's order was based on substantial evidence and that neither the Board nor the hearing officer violated sections of the Kentucky Revised Statutes. This appeal followed.

         This appeal concerns an administrative agency that is tasked with protecting "the health and safety of the public" and can "regulate, control and otherwise discipline the licensees who practice medicine and osteopathy within the Commonwealth of Kentucky." Kentucky Revised Statute (KRS) 311.555. KRS 311.591 allows the Board to, among other things, investigate grievances, issue complaints, assign matters to hearing panels or hearing officers, and to impose discipline upon licensed medical professionals. When the Board believes a medical licensee has violated the law and assigns the matter to a hearing panel or officer, the provisions of KRS Chapter 13B come into play.

         KRS 13B.020(1) states:

The provisions of this chapter shall apply to all administrative hearings conducted by an agency, with the exception of those specifically exempted under this section. The provisions of this chapter shall supersede any other provisions of the Kentucky Revised Statutes and administrative regulations, unless exempted under this section, to the extent these other provisions are duplicative or in conflict. This chapter creates only procedural rights and shall not be construed to confer upon any person a right to hearing not expressly provided by law.

         This Board is not exempt from the provisions of Chapter 13B.

         Dr. Strauss' primary argument on appeal is that the Board and the hearing officer violated certain statutory requirements. Specifically, his argument is based on KRS ...


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