ALI SHAMAEIZADEH, M.D. v. KENTUCKY BOARD OF MEDICAL LICENSURE
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RENDERED:
JANUARY 27, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001768-MR
ALI SHAMAEIZADEH, M.D.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 03-CI-010888
KENTUCKY BOARD OF MEDICAL
LICENSURE
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY AND SCHRODER, JUDGES.
COMBS, CHIEF JUDGE:
Ali Shamaeizadeh, M.D. (Dr. Ali), asserts
lack of jurisdiction in appealing from an order of the Jefferson
Circuit Court which dismissed his petition for review of a
decision of the Kentucky Board of Medical Licensure (the Board).
In seeking reinstatement of his license to practice medicine,
Dr. Ali argues that the circuit court violated his statutory and
constitutional rights by refusing to review the Board’s denial
of his application.
We agree.
Thus, we vacate and remand.
On March 7, 2000, the Board revoked Dr. Ali’s license
to practice medicine in Kentucky.
The final order of revocation
was affirmed on appeal by the Jefferson Circuit Court and
subsequently by this Court.
In October 2003, Dr. Ali applied to the Board for
reinstatement of his medical license pursuant to KRS1 311.607,
which provides as follows:
(1)
Except for disciplinary actions taken
pursuant to KRS 311.595(8) and KRS
311.599,[2] a licensee who has had his
license revoked may, after two (2)
years from the effective date of the
revocation order, petition the board
for a license to again practice in the
Commonwealth of Kentucky.
(2)
The board shall not be required to
issue a new license as described in
subsection (1). No new license shall
be issued to such former licensee
unless the applicant satisfies the
board that he is presently of good
moral character and qualified both
physically and mentally to resume the
practice of medicine without undue risk
or danger to his patients or the
public.
(3)
In the event that the board should
issue a new license under the
circumstances as described in this
section, the new license shall be under
probation for a period of not less than
two (2) years nor more than five (5)
years, and any subsequent violation
during the probation period shall
result in automatic revocation of
license.
1
Kentucky Revised Statutes.
2
Neither of these statutes is applicable to the instant action.
-2-
On December 3, 2003, the Board entered an order
denying the application for reinstatement as follows:
Having considered all of the available
information and being sufficiently advised,
Hearing Panel A CONCLUDES that the licensee
has failed to meet his burden, under KRS
311.607(2), to satisfy the Panel “that he is
presently of good moral character and
qualified both physically and mentally to
resume the practice of medicine without
undue risk or danger to his patients or the
public.” Accordingly, Hearing Panel A
ORDERS that the licensee’s petition for
reinstatement is DENIED.
Furthermore, having considered all
available information, particularly the
licensee’s disciplinary history before this
Board and the bases for those disciplinary
orders, Hearing Panel A ORDERS that it will
not consider another petition for
reinstatement filed by the licensee prior to
its November 2013 meeting, a period of ten
(10) years. (Emphasis in original.)
On December 12, 2003, Dr. Ali filed a petition in the
Jefferson Circuit Court seeking judicial review of the Board’s
order.
He alleged that the Board’s order was arbitrary and
capricious because it was not supported by substantial evidence.
He also claimed that the Board acted in disregard of its
statutory authority by limiting his ability to request
reinstatement for a period of ten years when the pertinent
statute specifically provided that a licensee might apply for
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reinstatement after two years from the date of revocation of the
license.
The Board responded to the petition by filing a motion
to dismiss.
It argued that there is no provision in KRS 311.607
providing for judicial review of the Board’s denial of Dr. Ali’s
application for a license.
It also argued that its order was
not a final order as contemplated by KRS 311.593, the statute
governing judicial review of the Board’s orders.
The Jefferson
Circuit Court accepted the Board’s reasoning and dismissed the
petition without addressing Dr. Ali’s substantive claims that
the Board acted arbitrarily and/or in excess of its expressed
authority.
This appeal followed.
Dr. Ali argues that he has both a statutory and a
constitutional right to judicial review of the Board’s denial of
his petition for reinstatement.
His statutory argument is based
on KRS 311.593(2), which provides:
Any physician who is aggrieved by a final
order of the board denying a license or
rendering disciplinary action against a
licensee may seek judicial review of the
order by filing a petition with the Circuit
Court of the county in which the board’s
offices are located in accordance with KRS
Chapter 13B.
We agree that this statute entitles Dr. Ali to
judicial review of the Board’s denial of his application for
reinstatement of his medical license.
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There is no dispute that
Dr. Ali is a physician who was aggrieved by the Board’s order
denying him a license.
There is also no dispute that Dr. Ali
filed a timely petition in the proper county in accordance with
KRS Chapter 13B.
The Board contends that the review afforded by KRS
311.593(2) applies only to orders that:
(1) deny an initial
application for a license or (2) revoke an existing license.
It takes the position that the statute is not applicable to
applications for reinstatement of a license.
We disagree.
In interpreting statutes, it is our task to ascertain
the intent of the legislature.
S.W.3d 442 (Ky. 2004).
Commonwealth v. Reynolds, 136
In this case, the legislative intent is
expressed in the most explicit language of the statute.
KRS
311.593(2) provides that: “[a]ny physician who is aggrieved by a
final order of the board denying a license . . . may seek
judicial review . . . .” (Emphases added.)
The Board’s argument
would require a re-writing of the statute to add words of
limitation of our own invention that were not the product of
legislative drafting.
Such an undertaking is assuredly beyond
the legitimate scope of our review.
In enacting KRS 311.607, the legislature circumscribed
the authority of the Board so as to prevent it from revoking a
medical license permanently.
It provided physicians an
opportunity (after the passage of two years) to prove themselves
-5-
qualified to practice medicine once again and to obtain a new
license.
Although KRS 311.607 itself does not provide for
judicial review of the denial of an application for
reinstatement, it must be juxtaposed with the plain language
employed in KRS 311.593(2).
The statutory scheme requires that
the statutes be read in conjunction with one another and that
they be harmonized accordingly to achieve the overall
legislative intent.
In support of its position, the Board urges that the
order denying Dr. Ali’s application for reinstatement does not
qualify as a “final order” as contemplated by KRS 311.593.
Under the Board’s analysis, the only final order in Dr. Ali’s
case was the order of revocation of Dr. Ali’s license originally
entered in 2000; it characterizes its most recent order merely
as a refusal to modify its previous order of revocation instead
of as a new order denying a license.
We find this argument to
be unsound.
In the recent case of Kentucky Board of Medical
Licensure v. Ryan, 151 S.W.3d 778, 780 (Ky. 2004), the Supreme
Court held that the Board has no authority to enter an order
modifying a final decision revoking a medical license.
Once the
Board revokes a license, it loses authority to consider remedial
relief in the nature of that which would ordinarily be available
-6-
pursuant to CR3 60.02.
Id.
It is limited to issuing a new
license pursuant to the reinstatement procedure set forth in KRS
311.607.
Id.
Thus, the order denying Dr. Ali’s application for
reinstatement cannot be deemed as the denial of a motion for
modification as the Supreme Court has expressly denied the
possibility of the modification of a previously issued final
order.
The legislature has created a procedure for
reinstatement of a medical license; it is a proceeding separate
and distinct from the disciplinary action that preceded the
revocation of the license.
The order adjudicating the
application for reinstatement concludes that process and
constitutes a final order.
If a physician is aggrieved by the
final order, that order becomes subject to judicial review.
The Board argues that because it is vested with
discretion in deciding whether to grant or to deny an
application for reinstatement, the legislature did not intend
that its ruling be subject to the judicial review provisions of
KRS 311.593(2).
While KRS 311.607 gives the Board broad
discretion in assessing whether a doctor’s credentials should be
reinstated, that discretion is not absolute.
Contrary to the
Board’s argument, KRS 311.607 cannot be read in a vacuum so as
to vest that discretion with immunity from the judicial review
3
Kentucky Rules of Civil Procedure.
-7-
granted by KRS 311.593(2).
Again, the related statutes must be
construed in conjunction with one another.
In addition to Dr. Ali’s statutory right to review,
he is also entitled to such review pursuant to Section 2 of the
Kentucky Constitution as interpreted by American Beauty Homes
Corp. v. Louisville & Jefferson County Planning and Zoning
Commission, 379 S.W.2d 450, 456 (Ky. 1964).
Basically, judicial review of administrative
action is concerned with the question of
arbitrariness. On this ground the courts
will assume jurisdiction even in the absence
of statutory authorization of an appeal.
There is an inherent right of appeal from
orders of administrative agencies where
constitutional rights are involved, and
section (2) of the Constitution prohibits
the exercise of arbitrary power. (Citations
omitted.)
The Board has cited cases from foreign jurisdictions
holding that upon the suspension of a doctor’s license to
practice medicine, he has no property interest warranting due
process protections.
However, those cases address instances in
which a party aggrieved by an administrative decision has failed
to follow the statutory procedures for obtaining judicial
review.
Failure to follow the procedures allowing for review is
generally fatal.
1995).
See, Taylor v. Duke, 896 S.W.2d 618 (Ky.App.
However, the Constitution of Kentucky very plainly
protects all persons from the arbitrary acts of administrative
-8-
agencies.
As recognized in American Beauty Homes, supra, the
non-ministerial orders of an administrative agency are
inherently reviewable for abuse or arbitrariness regardless of
whether there is a statutory procedure established for that
purpose.
Id.; see also Triad Development/Alta Glyne, Inc. v.
Gellhaus, 150 S.W.3d 43 (Ky. 2004).
Thus, whether scrutinized
under either KRS 311.593(2) or Section 2 of the Kentucky
Constitution, Dr. Ali’s licensing grievance is entitled to
judicial review.
The order of the Jefferson Circuit Court is vacated,
and this matter is remanded for further proceedings consistent
with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
J. Fox DeMoisey
Jonathan E. Breitenstein
Louisville, Kentucky
C. Lloyd Vest, II
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANT:
J. Fox DeMoisey
Louisville, Kentucky
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