SANGSTER (DAVID P.) VS. KENTUCKY BOARD OF MEDICAL LICENSURE
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RENDERED: OCTOBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
ORDERED PUBLISHED: DECEMBER 17, 2010; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002277-MR
DAVID P. SANGSTER, M.D.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 09-CI-010001
KENTUCKY BOARD OF
MEDICAL LICENSURE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, JUDGE; HENRY AND ISAAC,1 SENIOR JUDGES.
ISAAC, SENIOR JUDGE: David P. Sangster, M.D. appeals from an order of the
Jefferson Circuit Court authorizing the Kentucky Board of Medical Licensure
(KBML) to utilize and disclose as evidence a Kentucky All Schedule Prescription
1
Senior Judges Michael L. Henry and Sheila R. Isaac sitting as Special Judges by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky
Revised Statutes (KRS) 21.580.
Electronic Reporting (KASPER) report in the pending administrative action
against Dr. Sangster. For the following reasons, we affirm.
KASPER is an electronic system that monitors the dispensing of
controlled substances and is maintained by the Drug Enforcement and Professional
Practices Branch of the Cabinet for Health and Family Services (Cabinet). Persons
licensed to prescribe controlled substances are required to provide the Cabinet with
the drug dispensed, date of dispensing, quantity dispensed, prescriber, dispenser,
and patient identifying information.
In August 2007, a grievance was filed with the KBML alleging that
Dr. Sangster deviated from the acceptable and prevailing medical practices by
prescribing controlled substances to a patient causing her death. The KBML
initiated an investigation and obtained a copy of a KASPER Report detailing Dr.
Sangster’s prescriptions for all patients from January 18, 2007, to January 18,
2008.
The KBML requested the Cabinet to analyze Dr. Sangster’s
prescriptions for this period. In doing so, the Cabinet identified an additional ten
patients it believed warranted further investigation. A KBML consultant, who is a
licensed medical doctor, reviewed the charts on each patient and the KASPER
report and concluded that Dr. Sangster deviated from the acceptable and prevailing
medical practices. As a result, the KBML filed a complaint and emergency order
of suspension against Dr. Sangster’s medical license. An emergency hearing was
held, and the KBML’s suspension was upheld.
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An administrative hearing was scheduled for November 5, 2009. In
September 2009, the KBML sought Dr. Sangster’s signature to an agreed order
that would allow the KBML to provide Dr. Sangster with the KASPER report it
had relied upon and enter that report into evidence, under seal, at the hearing. Dr.
Sangster refused to sign the agreed order.
On October 1, 2009, the KBML filed a petition for declaration of
rights requesting the trial court to issue an order allowing the “utilization and
disclosure of KASPER data (including reports), under seal . . . by its Board
consultant in the administrative hearing.” Dr. Sangster filed a cross-petition for
declaration of rights requesting the court to issue a declaratory judgment holding
the KASPER report and data may be provided by the Cabinet to the KBML, “but
only to a (singular) ‘designated representative of the Board,’” not to any other
person within the KBML, including “an engaged physician/consultant.”
The court entered an order “that the [KBML] and its agents,
representatives and consultants may utilize and disclose as evidence the
[KASPER] Report.” The KASPER report was made available to Dr. Sangster, and
was admitted into evidence, under seal, in the November administrative hearing.
Dr. Sangster moved the court to amend the order to designate it final and
appealable, which the court granted. This appeal followed.
Dr. Sangster argues, pursuant to KRS 218A.202, that the trial court
erred by allowing the KASPER report to be utilized by more than one designated
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representative of the KBML and to be introduced into evidence at the
administrative hearing. We disagree.
As an initial matter:
Before the processes of CR[2] 54.02 may be
invoked for the purpose of making an otherwise
interlocutory judgment final and appealable, there must
be a final adjudication upon one or more of the claims in
litigation. The judgment must conclusively determine
the rights of the parties in regard to that particular phase
of the proceeding.
Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975). Since Dr. Sangster’s claims
regarding the disclosure of KASPER reports under KRS 218A.202 were
conclusively determined in the trial court order, the order is both final and
appealable. Therefore, we will review the merits of Dr. Sangster’s claims, and
“review questions of statutory construction de novo.” Ky. Employees Ret. Sys. v.
Foster, 272 S.W.3d 198, 200 (Ky.App. 2007) (citation omitted).
KRS 218A.202, provides, in relevant part:
(6) The Cabinet for Health and Family Services shall
only disclose data to persons and entities authorized to
receive that data under this section. Disclosure to any
other person or entity, including disclosure in the context
of a civil action where the disclosure is sought either for
the purpose of discovery or for evidence, is prohibited
unless specifically authorized by this section. The
Cabinet for Health and Family Services shall be
authorized to provide data to:
(a) A designated representative of a board
responsible for the licensure, regulation, or
discipline of practitioners, pharmacists, or other
person who is authorized to prescribe, administer,
2
Kentucky Rules of Civil Procedure.
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or dispense controlled substances and who is
involved in a bona fide specific investigation
involving a designated person;
....
(8) A person who receives data or any report of the
system from the cabinet shall not provide it to any other
person or entity except by order of a court of competent
jurisdiction and only to a person or entity authorized to
receive the data or the report under this section, except
that:
....
(c) The Department for Medicaid Services may
submit the data as evidence in an administrative
hearing held in accordance with KRS Chapter 13B.
The “[g]eneral principles of statutory construction hold that a court
must not be guided by a single sentence of a statute but must look to the provisions
of the whole statute and its object and policy.” Cosby v. Commonwealth, 147
S.W.3d 56, 58 (Ky. 2004) (citation omitted). Additionally, “[w]e have a duty to
accord to words of a statute their literal meaning unless to do so would lead to an
absurd or wholly unreasonable conclusion.” Id. at 59 (citation omitted). In other
words, “it is presumed that the legislature did not intend an absurd result.” Id.
(citation omitted). Therefore, “statutes should be given practical interpretation to
carry out manifest purpose.” Reeves v. Fidelity & Columbia Trust Co., 293 Ky.
544, 169 S.W.2d 621, 623 (1942) (citation omitted).
We do not read, as Dr. Sangster argues, KRS 218A.202(6)(a) to
preclude disclosure to more than one “designated representative” of the KBML.
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KRS 218A.202(6)(a) allows disclosure of the KASPER reports to “a designated
representative” of the KBML, meaning any person who is a designated
representative of the KBML. To interpret “a” to only allow one KBML
representative access to the KASPER report would lead to an absurd result. To
carry out its investigative purposes, the KBML must be able to disseminate the
KASPER report between its investigators and consultants.
Further, KRS 218A.202 does not preclude the introduction of
KASPER reports into evidence at an administrative hearing held by the KBML.
KRS 218A.202(8)(c) authorizes the Department for Medicaid Services to submit
KASPER reports as evidence in an administrative hearing without prior approval
by a court order. Thus, this section precludes the KMBL from using the KASPER
report as evidence without a court order. For practical considerations, as long as
the KBML obtains a court order, as it did here, the KASPER reports may be
introduced into evidence at an administrative hearing held by the KBML. Further,
the introduction of a KASPER report as evidence does not violate the best
evidence rule, because KRS 218A.202(8)(c) specifically authorizes the use of a
KASPER report as evidence in an administrative hearing. Accordingly, the trial
court order did not violate KRS 218A.202.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Fox DeMoisey
Louisville, Kentucky
Leanne K. Diakov
Louisville, Kentucky
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