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Conrad v. Beshear

United States District Court, E.D. Kentucky, Central Division

August 11, 2017

BRANDON NELSON CONRAD, M.D., Plaintiff,
v.
ANDREW G. BESHEAR, et al., Defendants.

          MEMORANDUM OPINION & ORDER

          GREGORY F VAN TATENHOVE UNITED STATES DISTRICT JUDGE

         Dr. Brandon Nelson Conrad filed the instant action against Defendants Andrew Beshear, in his official capacity as Attorney General of the Commonwealth of Kentucky, Matthew Bevin, in his official capacity as Governor of the Commonwealth of Kentucky, the Kentucky Board of Medical Licensure and its Executive Director Michael Rodman, the Kentucky Committee on Impaired Physicians, Inc., d/b/a Kentucky Physicians Health Foundation, Inc. (“the Foundation”), Dr. Will Ward in his official capacity as Chairman of the Foundation, and Dr. Gregory Jones in his individual and official capacity as Medical Director of the Foundation. [R. 16.] Now, this matter comes before the Court upon the Plaintiff's Construed Motion for Preliminary Injunction. [R. 4, see R. 6.] Plaintiff requests that the Court issue a preliminary injunction to prevent the Kentucky Board of Medical Licensure from taking adverse action against his license to practice medicine in the Commonwealth of Kentucky. For the reasons stated below, Dr. Conrad's Motion for Preliminary Injunction [R. 4] is DENIED.

         I

         Plaintiff is a medical doctor that worked as a hospitalist at the Ephraim McDowell Regional Medical Center (“EMRMC”) in Danville, Kentucky. [R. 1 at 4.] On March 17, 2017, the EMRMC removed Dr. Conrad from Patient Care pursuant to the Hospital's “Section 3: Precautionary Suspension” procedures following “concerns about [Dr. Conrad's] recent behavior, deviat[ion] from specialists' orders, and placing patients' safety at risk.” [R. 8-4 at 1.] Dr. Conrad was accused of “abnormal or strange behavior” in addition to deviating from a treating pulmonologist's orders, as Dr. Conrad “took approximately two liters of fluid from a patient's lungs” despite contrary orders from the specialist. [R. 15 at 3.] After removing the fluid from the patient's lungs, Dr. Conrad “photographed the fluid . . . posed with it, and texted it.” [R. 8-4 at 2.]

         In a second patient care situation, Dr. Conrad attempted to revive an 85-year old individual that was “crash[ing].” [R. 15 at 4.] The patient's treating cardiologist had previously issued a standing “do-not-intubate (DNI) order” for medical reasons and because the patient was claustrophobic and “could not tolerate BiPAP, a form of noninvasive ventilation.” [Id. at 3.] While attempting to revive the patient, and once again in contradiction of a specialist's orders, the Plaintiff placed the patient on BiPAP. [Id. at 4.] Following these incidents, Dr. Kryder Vanbuskirk, the President of Medical Staff at Ephraim McDowell, removed Dr. Conrad from patient areas and scheduled a special meeting of Ephraim McDowell's Medical Executive Committee and Peer Review Committee for March 22, 2017, to address the hospital's concerns with Dr. Conrad. [R. 8-4.]

         At the special meeting, Dr. Conrad was specifically asked whether he was impaired during these cases. [R. 8-5 at 2.] Plaintiff responded, with some delay, that, “I've thought pretty long and hard about that. I do not believe so. . . I feel comfortable in that answer.” Id. Following the special meeting, the President of the Ephraim McDowell Medical Staff sent Dr. Conrad a letter that noted the hospital's concern with Dr. Conrad's apparent hesitation as well as his demeanor and presentation at the meeting. The committee members believed that, during the special meeting, Dr. Conrad's “thought process and ability to clearly articulate medical decision making on such cases was lacking and [his] thought process seemed disconnected at times.” [R. 8-5.]

         Ephraim McDowell referred Dr. Conrad for evaluation to the impaired physicians program of the Kentucky Physicians Health Foundation, Inc. (the “Foundation”). [R. 1 at 4.] The Foundation “is a private, not-for-profit corporation that merely serves as a contractually designated consultant of the Kentucky Board of Medical Licensure in cases of physician impairment, ” and is tasked with “provid[ing] recommendations in impairment issues and suggested treatments; it does not make licensing decisions.” [R. 15 at 1.] Dr. Will Ward, Chairman of the Foundation's Board of Directors and then Interim Medical Director, interviewed Dr. Conrad on March 29, 2017, reviewed the Plaintiff's version of the patient-care incidents, evaluated his personal health and family history, and determined that Dr. Conrad should submit to a comprehensive ninety-six hour psychiatric evaluation at the Florida Recovery Center before returning to work. [R. 16 at 5-6.]

         In an April 6, 2017, letter to Ephraim McDowell, Dr. Ward informed the hospital of his findings concerning Dr. Conrad and, more specifically, noted particular concern with “the rather large number of psychoactive medications reflected on [Dr. Conrad's] KASPER report.” [R. 16-5.] In response, Dr. Conrad's psychiatrist, Dr. Beth Houseman, sent a statement to the Foundation on April 11, 2017, that she had treated Dr. Conrad for ADHD and anxiety for three years. [R. 16-6 at 2.] Despite her conclusion that Dr. Conrad “is not impaired by his psychiatric symptoms in a manner that would interfere with his ability to carry out his responsibilities as a physician” or “by any medication or by side effects of medications prescribed to address his symptoms, ” Dr. Ward remained concerned with Plaintiff's test results that suggested use of prescribed psychoactive medication in conjunction with alcohol. [See R. 16-8.]

         Dr. Ward requested confirmation that Dr. Conrad intended to comply with the Foundation's instruction to undergo a 96-hour evaluation at the Florida Recovery Center and made Dr. Conrad aware that the Foundation was required to notify the Kentucky Board of Medical Licensure of this recommendation. [R. 16-7.] Dr. Conrad notified the foundation that he had scheduled the evaluation for May 15, 2017, but Plaintiff also retained counsel and requested reevaluation of the Foundation's 96-hour recommendation. [R. 16 at 7-8; R. 16-8.] Initially, the purpose of this evaluation was to restore hospital privileges for Dr. Conrad at Ephraim McDowell, but the Hospital's subpoena response clarified that Dr. Conrad was employed by In Compass, not by the hospital itself. [R. 8-6 at 2.] Further, and in contradiction of Plaintiff's sworn testimony to the contrary at the Court's August 3, 2017, hearing on this matter, Ephraim McDowell reported that Plaintiff's employer In Compass terminated his employment effective April 1, 2017. [Id.]

         Dr. Ward's May 10, 2017, letter to the Kentucky Board of Medical Licensure (“the Board”) was construed as a grievance and initiated an investigation by the Board. [R.1 at 8; R. 9 at 5 referencing KBML Grievance No. 14095.] The KBML investigator Kevin Payne clarified that the letter was construed as a grievance because the Foundation believed that Dr. Conrad was refusing to participate in a ninety-six hour evaluation. [R. 16 at 8.] Roughly around this same time, Dr. Conrad submitted an “Investigate Physician/Background” document to the Board “in which he indicated that he was not practicing medicine, stating this his primary practice was ‘N/A at present'.” [R. 9 at 7.] Eventually, Plaintiff was evaluated at the Florida Recovery Center, but the June 12 through June 15 evaluation produced a report that echoed Dr. Ward's concerns. [R. 8-10.] The Florida Recovery Center found that “co-occurring alcohol use disorder and synergism with Dr. Conrad's other mental health issues might well have contributed to his workplace issues, ” and recommended that “Dr. Conrad should refrain from practicing medicine as he cannot practice with reasonable skill and safety at this time.” [R. 15 at 7-8.]

         On July 14, 2017, Mr. Rodman, the Executive Director of the Kentucky Board of Medical Licensure, sent a letter “Re: Potential Issuance of an Emergency Order” to Dr. Conrad concerning substance abuse allegations that advised the Plaintiff that his case would be presented at the July 20, 2017, inquiry panel. [R. 16-10.] The letter also informed Plaintiff that “there is a sufficient legal basis for the issuance of such an Emergency Order, if the Panel decides to issue a Complaint in your case.” [Id.] Dr. Conrad was invited to address the Panel concerning the single issue of “why patients or the public would not be endangered by your continuing to practice without restrictions while the Complaint is being resolved.” Dr. Conrad alleges that it is “outrageous and incredibly unfair” that the Board had more than seventy days to investigate allegations in this matter but that he was provided less than “three working days notice” of the emergency hearing. [R. 16 at 14.] Plaintiff made repeated requests for medical records, updates concerning the investigation, and for documents to be provided but “[n]o response [from the KBML] was received.” [R. 16 at 11.] On July 17, three days before the Inquiry Panel was to meet, “for the first time, Plaintiff was provided a copy of certain records from FRC and the Foundation.” Id.

         Plaintiff states that, despite multiple requests, the KBML refused to provide “written notice of the accusations against Plaintiff that were to be considered at the July 20, 2017, hearing” until after the hearing had taken place. [R. 16 at 12.] Plaintiff also alleges that, once he arrived at the Panel a notice on the door disallowed licensees from distributing materials for consideration as “all evidence must be submitted to the Inquiry Panel seven (7) days prior to the hearing” but Plaintiff was only provided six calendar days of notice. [Id.] As a result, “[t]he Inquiry Panel refused to consider the written report of Dr. Allen and the affidavit of Dr. Houseman because it was not submitted seven (7) days prior to the hearing.” Id. Even with this “arbitrary seven (7) day rule” the Panel allowed Mr. Payne, the KBML investigator, to submit a “Panel Memorandum” six days prior to the July 20 hearing. [R. 16 at 13.]

         At the Inquiry Panel, Dr. Conrad testified that he last practiced medicine in March 2017 and he confirmed that he had not practiced since working as a hospitalist at Ephraim McDowell Hospital. [R. 9 at 9-10.] The Panel made a charging decision that resulted in an emergency suspension of Plaintiff's license to practice medicine but provided Plaintiff with an opportunity to enter into an “Interim Agreed Order (Treatment), pursuant to which he would agree to not practice medicine until he either” underwent a ninety (90) day inpatient treatment program or completed an additional ninety-six (96) hour inpatient evaluation at a board approved facility. [Id.]

         Simultaneous to many of these events, Plaintiff filed the instant 42 U.S.C. § 1983 action against Defendants and has alleged multiple statutory and Constitutional violations in the Complaint [R. 1] and Amended Complaint [R. 16]. First, Dr. Conrad alleges that the Kentucky Board of Medical Licensure violates Federal and State Anti-Trust laws. [R. 16 at 15-20.] Next, he believes that the KBML licensure revocation process violated his Fourteenth Amendment rights to substantive and procedural due process. Dr. Conrad also alleges defendants violated his Fourteenth Amendment right to equal protection as an individual that suffers from a recognized disability and one that is charged with meeting the definition of a “chronic and persistent alcoholic.” [R. 16 at 25.] Finally, Dr. Conrad brings suit for intrusion upon seclusion and alleges that the Defendants have violated the Americans with Disability Act for, among other things, threating emergency suspension of Dr. Conrad's medical license due to his medically diagnosed and treated ADHD. [R. 16 at 27.]

         II

         “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000) (finding that issuance of a preliminary injunction “involv[es] the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it”)). To issue a preliminary injunction, the Court must consider: 1) whether the movant has shown a strong likelihood of success on the merits; 2) whether the movant will suffer irreparable harm if the injunction is not issued; 3) whether the issuance of the injunction would cause substantial harm to others; and 4) whether the public interest would be served by issuing the injunction. Overstreet v. Lexington- Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir. 2002) (citations omitted).

         Further, a court need not consider all of the factors if it is clear that there is no likelihood of success on the merits. See Amoco Protection Co. v. Village of Gambell, AK, 480 U.S. 531, 546 n. 12 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”). The Court of Appeals clarified that, “[w]hen a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor.” City of Pontiac Retired Employees Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir.2012)). Even if the Plaintiff is unable “to show a strong or substantial probability of ultimate success on the merits” an injunction can be issued when the plaintiff “at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued.” In re Delorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).

         While all Defendants have replied to Plaintiff's Motion for Preliminary Injunction, only the Kentucky Board of Medical Licensure has the authority to revoke or reinstate Dr. Conrad's medical license. The initial complaint only named Michael Rodman, the Executive Director of the KBML, as a party to this action [R. ...


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