AZHAR MASOOD, M.D. v. KENTUCKY BOARD OF MEDICAL LICENSURE
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RENDERED:
JANUARY 14, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2003-CA-002407-MR
AZHAR MASOOD, M.D.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O’MALLEY SHAKE, JUDGE
ACTION NO. 03-CI-001820
KENTUCKY BOARD OF MEDICAL LICENSURE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; BARBER, JUDGE; MILLER, SENIOR
MILLER, SENIOR JUDGE:
Azhar Masood, M.D. (Dr. Masood) has
appealed from a Jefferson Circuit Court’s Opinion and Order
denying his Petition for Judicial Review of the Kentucky
Board of Medical Licensure’s (Board) final order denying
his application for licensure.
In asking this Court to
require the Board to afford him an “appropriate due process
hearing,” Dr. Masood contends that his constitutional right
to due process was violated 1) by the Board’s arbitrary use
1
Senior Judge John D. Miller, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution and Kentucky Revised Statutes (KRS) 21.580.
of Kentucky Revised Statutes (KRS) 311.571(8)2 and 2) by the
trial court’s review pursuant to KRS 311.593.3
We disagree
with Dr. Masood’s contentions and affirm.
The facts are as follows.
Dr. Masood applied to
the Board for a limited medical license in order to
complete his residency program in Kentucky.
Dr. Masood,
educated in Pakistan and trained in Ohio, answered “no” to
application questions one, four, eleven and twelve,4
affirming that he had not been the subject of any
investigations resulting in limited staff privileges, or in
dismissal or resignation from a postgraduate training
program; and that he was not the subject of any
2
Notwithstanding any of the requirements for licensure established by
subsections (1) to (7) of this section and after providing the
applicant . . . with reasonable notice of its intended action and after
providing a reasonable opportunity to be heard, the board may deny
licensure to an applicant . . . without a prior evidentiary hearing
upon a finding that the applicant . . . has violated any provision of
KRS 311.595 or 311.597 or is otherwise unfit to practice. Orders
denying licensure may be appealed pursuant to KRS 311.593.
3
(2) Any physician
denying a license .
a petition with the
offices are located
who is aggrieved by a final order of the board
. . may seek judicial review of the order by filing
Circuit Court of the county in which the board’s
in accordance with KRS Chapter 13B.
4
1. Have you ever been dismissed from, resigned while under
investigation or failed to complete an academic year at a medical
school or a postgraduate training program?
4. Has any hospital, hospital medical staff or other health care
facility ever revoked, suspended, restricted, limited, reprimanded,
placed on probation or otherwise disciplined your staff privileges?
11. Have you ever been convicted of a felony or misdemeanor by any
state, Federal or International court? Are any criminal charges
presently pending against you in any of those courts?
12. To your knowledge, are you the subject of any investigation for a
criminal act?
2
investigations for a criminal act and currently had no
pending criminal charges.
His notarized signature
acknowledged awareness that any false statement was grounds
for denial of licensure.
Information from Dr. Masood’s family practice
residency at St. Vincent Mercy Medical Center in Toledo,
Ohio contradicted Dr. Masood’s application answers.
St.
Vincent reported that Dr. Masood did not complete the
residency program; that he had been disciplined or under
investigation; and that he had also had his duties limited.
St. Vincent provided no further details, but information
from the Ohio State Medical Board indicated that a criminal
complaint had been filed against Dr. Masood for “gross
imposition and menacing by stalking” which had resulted in
St. Vincent suspending his privileges pending the
investigation and later resulted in his dismissal.
The Board notified Dr. Masood upon receipt of
this information, questioning the inconsistencies between
it and the application.
Ultimately the Board notified Dr.
Masood in writing that it would consider his application on
December 19, 2002; that this would be his only opportunity
to appear and explain the inconsistency; and that pursuant
3
to KRS 311.571(8)5 and other statutes (copies of which were
enclosed) the failure to disclose could be grounds for
denial of the license.
Dr. Masood responded to the Board’s
correspondence and appeared before the Board.
While
acknowledging his awareness of a criminal complaint prior
to the filing of the application, he indicated that the
case had been dismissed but admitted having no
documentation of such.
He explained that the complaint
came from a patient with psychiatric problems; that he
never touched the patient inappropriately; that the patient
was examined in the presence of a senior nurse; that
pending the investigation he was put on a “research
rotation” that the hospital considered to be “limited”
duties; that because his uncle was gravely ill and the
investigative process was taking too long, he resigned the
residency to return to Pakistan; and that he learned later
that the hospital had treated his resignation as a
5
Although the letter cited KRS 311.571(7), KRS 311.571(8) is the
applicable statute. Section 8 is a 2002 amendment and recodification
of section 7. Both sections are identical in providing that the Board
can deny licensure to an applicant without a prior evidentiary hearing
upon a finding that the applicant has violated any provision of KRS
311.595 or 311.597, and the Board’s order can be appealed pursuant to
KRS 311.593. The 2002 amendment added the provision that before denial
the Board must provide the applicant with reasonable notice of its
intended action and a reasonable opportunity to be heard. The Board’s
letter, although citing the incorrect statutory section, followed the
mandate of the 2002 amendment by reference in the body of the letter to
the notice provisions.
4
dismissal for failing to complete the investigative
process.
He apologized to the Board for the incorrect
answer, labeling it a mistake made in haste and a
miscommunication.
The Board initially considered
continuing the process pending presentation of the
dismissal documentation.
Expressing some sympathy to Dr.
Masood’s situation, however, the Board ultimately denied
the application.
On January 17, 2003, the Board issued its order
denying licensure based on violations of KRS 311.595(1)6 and
(21),7 sections specifically pertaining to his failure to
disclose the limitation of duties and the
dismissal/resignation.
Dr. Masood petitioned the trial court for review
pursuant to KRS 311.593(2).
The trial court issued an
opinion and order affirming the Board.
The court concluded
that (1) KRS 311.530-.6208 prevailed over KRS Chapter 13B
6
Knowingly made or presented, or caused to be made or presented, any
false, fraudulent, or forged statement, writing, certificate, diploma,
or other thing, in connection with an application for a license or
permit.
7
Been disciplined by a licensed hospital or medical staff of the
hospital, including removal, suspension, limitation of hospital
privileges, failing to renew privileges for cause, resignation of
privileges under pressure or investigation, or other disciplinary
action if the action was based upon what the hospital or medical staff
found to be unprofessional conduct, professional incompetence,
malpractice, or a violation of any provisions of KRS Chapter 311. This
subsection shall not require relitigation of the disciplinary action.
8
The Kentucky Medical and Osteopathic Practice Act of 1972.
5
(Administrative Hearings); (2) that KRS 311.571(8) did not
conflict with and was not superseded by KRS 13B.020(1); and
(3) that the Board’s actions were not an abuse of
discretion, did not exceed statutory authority, and were
not a violation of due process, because Dr. Masood was put
on notice of one of the reasons for denial and given the
opportunity to respond.
This appeal followed.
On appeal Dr. Masood asks this Court to remand
this matter to the Board for an “appropriate due process
hearing,” alleging as he did before the trial court that
his due process rights were violated by the Board.
He also
argues that the trial court utilized the improper standard
of judicial review.
We affirm the trial court’s opinion
and order affirming the Board’s denial of Dr. Masood’s
application.
We are not persuaded by Dr. Masood’s contention
that the Board and the trial court denied him due process
by use of KRS 311.571(8) and 311.593 in lieu of KRS Chapter
13B.
According to City of Bowling Green v. Board of
Education of Bowling Green Independent School District, 443
S.W.2d 243, 247 (Ky. 1969):
There are three established rules of
statutory construction which . . . are
dispositive of the issue here
presented. These rules are: (1) That it
is the duty of the court to ascertain
6
the purpose of the General Assembly,
and to give effect to the legislative
purpose if it can be ascertained; (2)
that conflicting Acts should be
considered together and harmonized, if
possible, so as to give proper effect
and meaning to each of them; and (3)
that as between legislation of a broad
and general nature on the one hand, and
legislation dealing minutely with a
specific matter on the other hand the
specific shall prevail over the
general.
With regard to the first prong, the legislative intent of
the medical licensure provisions is stated in KRS 311.555.
The legislative purpose of KRS 311.530-.620 is to provide
board regulation and control of the practice of medicine in
Kentucky.
We believe it is clear that the Board and the
trial court effectuated the legislative intent of KRS
311.571(8) and 311.593.
we see no conflict.
With regard to the second prong,
Both the medical licensure and
administrative hearing procedures provide reasonable notice
and a reasonable opportunity to be heard.
With regard to
the third prong, the specific medical licensure provisions
prevail over the general statutes regulating administrative
process.
The Board provided reasonable notice and Dr.
Masood took advantage of every reasonable opportunity to be
heard.
And, as demonstrated below, the Board’s decision
was properly reviewed by the trial court.
Giving effect to
the legislative purpose of KRS 311.571(8) and 311.593,
7
therefore, we hold that both statutes were constitutionally
applied.
We likewise are not persuaded by Dr. Masood’s
argument that the trial court erred by failing to find an
abuse of discretion in the Board’s decision.
KRS 311.555,
which provides for judicial review of a decision of the
Board, is a codification of the test set forth in American
Beauty Homes Corporation v. Louisville and Jefferson County
Planning and Zoning Commission, 379 S.W.2d 450 (Ky. 1964).
As such, on appeal, this Court must decide if the Board
exceeded its statutory powers; if the procedures employed
by the Board resulted in due process violations; and if the
Board’s actions constituted an abuse of discretion.
The record is clear that based upon the power
granted to the Board by the General Assembly in KRS
311.530-.620, the Board did not exceed its statutory powers
as it has the authority to deny a license to practice
medicine.
With regard to the issue of due process, the
Kentucky Supreme Court adopted the three-prong analysis
from Mathews v. Eldridge, 424 U.S. 319, 333-35, 96 S.Ct.
893, 902-03, 47 L.Ed.2d 18, 32-33 (1976) in Division of
Driver Licensing v. Bergmann, 740 S.W.2d 948, 951 (Ky.
1987).
It requires consideration of the private interest
8
that will be affected by the official action; the risk of
an erroneous deprivation of such interest through the
procedures used; the probable value, if any, of additional
or substitute procedural safeguards; and the government’s
interest that any additional procedural requirement would
entail.
Looking at the Eldridge factors provides Dr.
Masood no relief.
While the private interest in obtaining
a license to practice medicine is substantial, the state
has a compelling interest in providing its citizens with
quality health care.
KRS 311.571(8), setting forth the
procedure the Board must use when considering licensure,
satisfies sufficient due process guarantees by requiring
the Board to provide the applicant with reasonable notice
of its intended action and a reasonable opportunity to be
heard.
The risk, therefore, of erroneous deprivation of a
license under KRS 311.571(8) is unlikely given its notice
provisions.
here.
In fact, the notice provisions were effective
Dr. Masood was on notice from the signing of his
application that a false statement could be grounds for
denial of the application.
He was given notice that the
false application statement was an issue for the Board, and
he took advantage of three opportunities (two written and
one in person) to explain the inconsistency.
9
He admitted
marking the answer incorrectly only after the Board
received information to the contrary.
Information used by
the Board was within Dr. Masood’s knowledge at the time of
the filing of the application.
The additional Eldridge safeguard of a formal
hearing is offered under the licensing statute pursuant to
show cause orders (KRS 311.572).
In any event, a hearing
would not have afforded Dr. Masood any additional
opportunity to provide the Board with more explanation on
the incorrect answer than he gave in the three
opportunities he received.
Dr. Masood received adequate
due process.9
The third American Beauty prong addresses the
question of whether the Board’s action is supported by
substantial evidence.
In the situation we have here where
the Board’s decision denied relief to the party with the
burden of proof, the issue before us is whether the
9
While the record on appeal contains a Lucas County Ohio Common Pleas
Court grand jury report dated November 1, 2002, finding no true bill
against Dr. Masood with regard to a charge of gross sexual imposition,
and a letter dated December 20, 2002, from an attorney indicating that
he represented Dr. Masood in this matter and that “after an intensive
investigation, it was apparent that Dr. Masood committed no criminal
act and all charges were dropped,” this information was not before the
Board and does not appear in the record until filed as an exhibit to
Dr. Masood’s “Reply to Response to Petition for Judicial Review,” filed
in the trial court on June 30, 2003. As this information was not
before the Board it cannot be considered by this Court. In any event,
the Board’s denial was not based on the failure to disclose the
criminal charges but on the failure to disclose the limitation of
duties and dismissal/resignation from the residency program.
10
evidence in that party’s favor is so compelling that no
reasonable person could have failed to be persuaded by it.
McManus v. Kentucky Retirement Systems, 124 S.W.3d 454,
465-69 (Ky.App. 2003).
Here, Dr. Masood admitted to being aware of the
issues pertaining to his departure from the Ohio hospital
which were brought to the attention of the Board by the
Ohio authorities, and admitted providing a false answer on
his application.
KRS 311.571(8) gives the Board the power
to deny an application for licensure without an evidentiary
hearing upon proof of a violation of KRS 311.595(1),
knowingly making or presenting or causing to be made a
false statement in connection with an application for a
license.
As a result of Dr. Masood’s own answers, we
cannot find compelling evidence in Dr. Masood’s favor as to
persuade a reasonable person to his way of thinking.
There
was no abuse of discretion by the Board.
The three-prong test of KRS 311.555 having been
met, we can find no abuse of discretion in the Board’s
decision.
For the foregoing reasons, the opinion and order
of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
11
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Fox DeMoisey
Louisville, Kentucky
C. Lloyd Vest, II
Louisville, Kentucky
12
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