DAVID P. SANGSTER, M.D. v. LLOYD VEST AND KENTUCKY BOARD OF MEDICAL LICENSURE
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RENDERED:
AUGUST 4, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002552-MR
DAVID P. SANGSTER, M.D.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 04-CI-001227
v.
LLOYD VEST AND KENTUCKY
BOARD OF MEDICAL LICENSURE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND JOHNSON, JUDGES.
COMBS, CHIEF JUDGE:
This is a pro se appeal from an opinion and
order of the Jefferson Circuit Court dismissing the complaint of
David P. Sangster, M.D., against the Kentucky Board of Medical
Licensure (the Board) and its general counsel, Lloyd Vest.
In 1994, the Board initiated an investigation of Dr.
Sangster concerning allegations that he had engaged in a sexual
relationship with a patient and that he had inappropriately
(and/or excessively) prescribed controlled substances to his
patients.
Following an emergency hearing, the parties agreed to
resolve the case informally without conducting an evidentiary
hearing.
Represented by counsel, Dr. Sangster entered into an
Agreed Order of Suspension/Probation, which was signed on
October 16, 1997.
The Order contained several Stipulated
Conclusions of Law.
Pertinent to this appeal are the following
items:
3. Given the conflicting nature of the
evidence anticipated at the administrative
hearing, there would be sufficient evidence
for the Hearing Panel to conclude that a
violation had occurred or that a violation
had not occurred.
4. The parties expressly agreed that there
are sufficient legal grounds for the Hearing
Panel to impose an indefinite restriction
upon his Kentucky medical license, pursuant
to KRS 311.595 and 311.597.
5. While the licensee disagrees with the
ultimate conclusion, he agrees that the
Board could present sufficient evidence
during a hearing for a Hearing Panel to
conclude that he had engaged in predatory
practices in his medical practice. The
licensee understands that such a finding
would support revocation of or an indefinite
restriction upon his Kentucky medical
license. Rather than risk revocation of his
license, the licensee agrees to an
indefinite restriction under the terms set
out below.
The terms governing the indefinite restriction
included placing the license of Dr. Sangster on probation
through March 8, 2002.
Dr. Sangster also agreed not to re-apply
for his Drug Enforcement Administration permit until he had
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successfully completed a mini-residency on “The Use and
Prescribing of Controlled Substances.”
Shortly after signing the Agreed Order, Dr. Sangster
began to challenge its validity repeatedly on a variety of
grounds.
In March 1999, he filed a petition to correct errors
relating to the opinions of Board consultant Dr. Orson Smith.
He requested that the Board consider the possibility that Dr.
Smith’s testimony was false and that he had engaged in willful
misconduct.
The Board refused to consider the petition.
In
July 2001, Dr. Sangster filed a grievance against Dr. E.C.
Seeley relating to his conduct as a consultant on the case.
The
Board again refused to entertain the grievance, commenting, “We
will not re-litigate your challenges to the testimony presented
in your disciplinary action[.]”
Dr. Sangster next filed a
complaint against Dr. Seeley and the Board itself in Jefferson
Circuit Court.
The Jefferson Circuit Court granted Dr. Seeley’s
motion to dismiss the complaint; that order was affirmed by this
Court in an opinion rendered on March 26, 2004 (2002-CA-001970MR).
Dr. Sangster then filed a second complaint in
Jefferson Circuit Court, once again naming Dr. Seeley as a
defendant -- but now naming the Governor of Kentucky as a
defendant as well.
The defendants’ motion to dismiss was
granted on December 27, 2002.
This Court affirmed the ruling of
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the circuit court in an opinion rendered on May 14, 2004 (2003CA-000201-MR).
On December 25, 2002, Dr. Sangster filed a third
complaint, naming as defendants the former Chief of the
Jefferson County Police Department, William Carcara, and a
former investigator for the Board, Jose Aponte.
This complaint
focused on the narcotics investigation by the police which led
to the disciplinary action undertaken by the Board against Dr.
Sangster.
The circuit court granted the defendants’ motion to
dismiss.
The appeal now before us relates to a fourth complaint
that was filed by Dr. Sangster on January 17, 2004, against the
Board and its general counsel, Lloyd Vest.
In this complaint,
Dr. Sangster alleged that various witnesses had committed
perjury against him, that the Board had suborned perjury, and
that the Board even coerced them into testifying against him.
He also alleged that by allowing a copy of the Agreed Order of
Suspension/Probation to be published on its website, the Board
violated his right to confidentiality conferred by KRS1
61.810(j), a portion of the Open Records Act.
Finally, he
claimed that the action of the Board had violated his
constitutional right to equal protection.
On November 8, 2004,
the circuit court entered an order granting the defendants’
1
Kentucky Revised Statutes.
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motion to dismiss on the basis of the statute of limitations,
res judicata, and lack of a right to confidentiality.
On appeal, Dr. Sangster contends that the Board
defamed him in publishing the Agreed Order of Suspension/
Probation on the Board’s website by rendering it available to
the general public.
Although the allegations contained in the
order were never proven, he claims that they have been published
as if they were true.
Our review of the record reveals a claim of defamation
was never raised in the pleadings before the circuit court.
“The Court of Appeals is without authority to review issues not
raised in or decided by the trial court.”
Regional Jail
Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
We are
not at liberty to address this newly raised allegation.
Dr. Sangster also argues that the availability of the
Order on the Board’s website contravenes provisions of the
Kentucky Open Records Act.
The Board argues that the Agreed
Order is a public record as that term is defined in KRS
61.870(2):
“Public record” means all books, papers,
maps, photographs, cards, tapes, discs,
diskettes, recordings, software, or other
documentation owned, used, in the possession
of or retained by a public agency. “Public
record” shall not include any records owned
or maintained by or for a body referred to
in subsection (1)(h) of this section that
are not related to functions, activities,
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programs, or operations funded by state or
local authority.
Dr. Sangster nonetheless contends that the Board
violated KRS 61.810(j), which provides that public scrutiny need
not be extended to:
[d]eliberations of judicial or quasijudicial bodies regarding individual
adjudications or appointments, at which
neither the person involved, his
representatives, nor any other individual
not a member of the agency’s governing body
or staff is present[.]
He believes that when the Agreed Order was made available to the
public, this statutory provision was violated because the
results of the Board’s deliberations were involved.
His
argument is based on a fundamental misunderstanding of the
statute.
KRS 61.810 pertains to actual public access to and
attendance at meetings -- not the documents generated as a
result of those meetings.
In short, he has erroneously relied
on the term deliberations and has lifted it out of context in a
manner that affords him neither relevance nor relief.
Dr. Sangster also contends that the publication of the
order violates his right to equal protection because other
regulatory agencies (such as the Kentucky Bar Association and
the Kentucky Board of Nursing) maintain the confidentiality of
accused members who are exonerated.
He bases this argument on
the mistaken premise that he was indeed exonerated; i.e., that
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he was found not guilty of the allegations against him.
However, Dr. Sangster expressly agreed that there were
sufficient grounds for the Hearing Panel to revoke his medical
license.
Rather than risking an adverse outcome, he accepted
the terms offered in a manner analogous to entry of an Alford
plea by a criminal defendant in order to obtain a more lenient
sentence.
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1977).
Dr. Sangster was not exonerated and
had expressly admitted that the charges against him might be
proven.
His case is wholly unique and distinguishable from the
examples that he cites from disciplinary matters before the
Kentucky Bar Association and the Kentucky Board of Nursing.
The appellees argue that Dr. Sangster’s claims are
barred under the doctrine of res judicata, which provides that:
[a] final judgment precludes subsequent
litigation not only of those issues upon
which the court was required to form an
opinion and pronounce judgment but also of
matters included within those issues and
matters that, with the exercise of
reasonable diligence, might have been raised
at the time.
Whittaker v. Cecil, 69 S.W.3d 69, 72 (Ky. 2002), citing Newman
v. Newman, 451 S.W.2d 417, 419 (Ky. 1970).
We agree.
Dr.
Sangster has provided no explanation as to why the issues raised
in this appeal could not have been raised in one of his numerous
prior actions.
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We affirm the opinion and order of the Jefferson
Circuit Court dismissing Dr. Sangster’s claims.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEES:
David P. Sangster, M.D.
Louisville, Kentucky
L. Chad Elder
Louisville, Kentucky
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