GALLIEN (WRENDA B.) VS. KENTUCKY BOARD OF MEDICAL LICENSURE
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RENDERED: MARCH 25, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000694-MR
WRENDA B. GALLIEN, M.D.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC COWAN, JUDGE
ACTION NO. 08-CI-008619
KENTUCKY BOARD OF
MEDICAL LICENSURE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Wrenda B. Gallien, M.D., appeals from an order
of the Jefferson Circuit Court dismissing her petition for judicial review of an
adverse determination of the Kentucky Board of Medical Licensure. The single
1
Senior Judge Joseph E. Lambert 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.
issue before us is whether the trial court correctly dismissed Appellant’s petition
because it had not been filed within the 30 days prescribed by statute. After our
review, we hold that the court did not err in this respect. Thus, we affirm.
Facts and Procedural History
On July 30, 2004, the Kentucky Board of Medical Licensure, through
its Inquiry Panel B, issued a Complaint and Emergency Order of Suspension
against Appellant. The Complaint alleged that Appellant had been arrested for: (1)
illegally prescribing and filling prescriptions for controlled substances; and (2)
tampering with physical evidence. The Complaint further alleged that Appellant
had failed to meet the standards of prevailing and acceptable medical practice in
the areas of diagnosis, treatment, and records regarding her prescriptions of
controlled substances. As a result of these accusations, Appellant’s medical
license was suspended and she was prohibited from practicing medicine until the
matter was finally resolved.2 Appellant did not challenge the Emergency Order of
Suspension. The Complaint was referred to the Division of Administrative
Hearings in the Office of the Attorney General, and an administrative hearing on
the merits of the disciplinary charges was scheduled for January 11-13, 2005.
However, at Appellant’s request (and without any objection by the
Board), the administrative hearing was delayed several times because the criminal
charges against Appellant had not been resolved.3 By January 2007, Appellant’s
2
Appellant’s medical license was suspended under the authority of KRS 311.592(1) and KRS
13B.125.
3
Appellant’s first trial on the aforementioned criminal charges ended in a mistrial. Prior to the
scheduled second trial, Appellant’s counsel filed a petition for a writ of prohibition in this Court
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medical license had been suspended for over 29 months. Thus, she was subject to
the terms of KRS 311.604 because she had “not been engaged in the active practice
of medicine for at least two (2) years.” KRS 311.604(1). Pursuant to this statute,
the Board was empowered to order Appellant to “successfully complete a boardapproved clinical competency examination or a board-approved clinical skills
assessment program” at her own expense in order to determine whether she could
“resume the practice of medicine without undue risk or danger to patients or the
public.” Id.
Accordingly, Inquiry Panel B voted to order Appellant to submit to an
assessment by the Center for Personalized Education for Physicians (CPEP) in
order to determine her competency to practice medicine. However, the Panel also
voted to permit Board counsel to negotiate an agreed order with Appellant in lieu
of actually issuing an assessment order. Appellant was subsequently contacted and
asked to enter into a proposed Interim Agreed Order. Under this order, Appellant
would essentially waive her right to seek a hearing to challenge the Emergency
Order of Suspension in exchange for the Board’s agreement to waive the
requirement that Appellant complete the clinical assessment set forth in KRS
311.604 while the criminal charges against Appellant were still pending. If
Appellant wished to practice medicine again once the criminal charges were
resolved, the interim order proposed a procedure in which Appellant would
complete the clinical assessment before proceedings resumed on the pending
and a subsequent appeal to the Supreme Court of Kentucky, so no trial was conducted while that
matter was waiting to be resolved.
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disciplinary charges. However, Appellant declined to agree to the terms of the
Interim Agreed Order, and instead indicated that she wished to “address the
immediate issue of re-issuance of her licensure” if she was ultimately “successful”
in the criminal proceeding.
The Board subsequently issued an Order to Complete Clinical Skills
Assessment pursuant to KRS 311.604. This order specifically quoted KRS
311.604(2) in advising Appellant that failure to schedule the assessment with
CPEP within 20 days would “constitute an admission that [she] is unable to
practice medicine according to accepted and prevailing standards.” The order
further provided, consistent with KRS 311.604(2): “The failure shall constitute a
default and a final order may be entered without additional testimony or without
presentation of additional evidence.” However, Appellant failed to schedule the
assessment as ordered, and she provided the Board with no objections or other
grounds for refusal to complete the assessment.
Consequently, on April 10, 2007, counsel for the Board wrote a letter
to Appellant advising her that Inquiry Panel B would meet on April 19, 2007, to
consider her case. This letter included an attached memorandum to the Board from
counsel recommending that the Board “take appropriate action” because of
Appellant’s failure to comply with the Order to Complete Clinical Skills
Assessment. Neither Appellant nor her attorney filed a response to this letter or
anything to be considered by the Panel.
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Hence, on April 25, 2007, the Board (through Inquiry Panel B) issued
an Order of Suspension that suspended Appellant’s medical license “indefinitely
… until further Order of the Panel,” and prohibited Appellant from engaging in
any act that would constitute the “practice of medicine” as defined by KRS
311.550(10) until approval by the Board. The Order of Suspension summarized
the parties’ previous efforts to resolve the assessment issue and included the
following justification for the Panel’s decision:
5. By failing to comply with the Order to Complete
Clinical Skills Assessment, the licensee has admitted that
she is unable to practice medicine according to accepted
and prevailing standards of care by reason of an extended
absence from the active practice of medicine, in violation
of KRS 311.595(8).
6. Pursuant to KRS 311.604, the Panel may take the
failure to complete the assessment as order [sic] as a
default and may issue a Final Order without the taking of
testimony or presentation of evidence.
The Order of Suspension also contained a section entitled, “EFFECTIVE DATE
AND APPEAL RIGHTS,” which expressly provided that Appellant had the right
to “appeal from this Order, pursuant to KRS 311.593 and 13B.140-150, by filing a
Petition for Judicial Review in Jefferson Circuit Court within thirty (30) days after
this Order is mailed or delivered by personal service.” The order also contained
additional instructions as to how the petition should be prepared and mailed.
Despite this language, Appellant failed to take any further action until
February 12, 2008 – nearly 10 months later – when her attorney asked Inquiry
Panel B via letter to dismiss its Complaint without prejudice and to vacate the
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Order of Suspension because Appellant wished to retire with a “clean record.”
When the Panel refused to do so, Appellant tendered a Motion to Strike the Order
of Suspension.4 However, the Panel refused to accept the motion for filing on the
grounds that it was unauthorized by statute because Appellant’s case had been
resolved in its entirety by the Order of Suspension and Appellant’s failure to
appeal from that order. Appellant then asked the hearing officer originally
assigned to the Complaint to intercede, and on April 2, 2008, the hearing officer
issued an Order Clarifying the Record in This Administrative Action that found,
without citing to any authority, that the Order of Suspension was not a final order
and that the issues and orders relating to Appellant’s failure to participate in the
CPEP assessment had nothing to do with the original Complaint and Emergency
Order of Suspension. Thus, separation of those matters was procedurally
necessary.
On April 21, 2008, Inquiry Panel B issued an Order Dismissing
Remaining Charges in Complaint, Without Prejudice. That order provided:
In light of the Panel’s resolution of this matter by final
Order of Suspension issued on April 25, 2007, which was
not appealed, it is not presently necessary to resolve the
remaining charges in the Complaint alleging violations of
KRS 311.595(4) and (9), as illustrated by KRS
311.597(1) and (4). Accordingly, the Panel ORDERS
that the remainder of Complaint No. 959, relating to the
charged violations of KRS 311.595(4) and (9), as
4
The letter and the motion were apparently prompted by a resolution of the criminal charges
against Appellant. According to Appellant’s brief, she entered an Alford plea of guilty to nine
felony counts each of wrongfully filling prescriptions and participating in prohibited acts relating
to controlled substances, as a result of which she was placed into a pretrial-diversion program for
one year.
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illustrated by KRS 311.597(1) and (4), is hereby
DISMISSED, WITHOUT PREJUDICE. Accordingly,
further administrative proceedings on Complaint No. 959
are terminated upon the filing of this Order[.]
Thus, the hearing officer’s conclusions notwithstanding, the Panel considered the
Order of Suspension to have been a final order that eliminated the need to consider
the disciplinary charges pending in the Complaint. The order further provided that
Appellant would be afforded future opportunities to demonstrate that she could
return to medicine, but that such a demonstration would require, at a minimum,
successful completion of the CPEP assessment. The order also left open the
question of whether it would be necessary to address the charged violations of
KRS 311.595 in the event that Appellant was permitted to resume practicing
medicine.5
On August 18, 2008, Appellant filed a petition for judicial review and
a declaratory judgment action against the Board in Jefferson Circuit Court.
Appellant specifically asserted that KRS 311.604 was unconstitutional and that she
had been deprived of her procedural due process rights during the course of her
dealings with the Board. The Board responded with a motion to dismiss
Appellant’s petition on the grounds that it had not been timely filed within 30 days
of the mailing of the Order of Suspension, as required by KRS 311.593 and KRS
5
The Order Dismissing Remaining Charges in Complaint, Without Prejudice did not contain a
notice of Appellant’s rights on appeal as required by KRS 13B.120(3); so, on April 29, 2008, the
hearing officer issued a Recommended Order of Dismissal that included the required notice.
However, counsel for the Board took the position that the order of dismissal terminated the entire
administrative action against Appellant and ended any authority that the hearing officer had to
issue orders. Thus, Inquiry Panel B did not consider the recommended order.
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13B.140(1). The circuit court agreed with the Board and entered an Opinion and
Order dismissing Appellant’s action. This appeal followed.
Analysis
On appeal, Appellant contends that the circuit court acted erroneously
in dismissing her petition for judicial review on the grounds that it was untimely
filed. However, the record leads us to conclude otherwise. The statutory
requirements – and the deadline – for filing a petition for judicial review of a final
order of the Kentucky Board of Medical Licensure are plainly set forth in KRS
311.593 and KRS13B.140. KRS 311.593(2) 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.
KRS 13B.140(1) further provides, in relevant part, that “[a] party shall institute an
appeal by filing a petition in the Circuit Court of venue, as provided in the
agency’s enabling statutes, within thirty (30) days after the final order of the
agency is mailed or delivered by personal service.” (Emphasis added). Thus,
these statutes, when read together, impose a 30-day period of limitations for an
aggrieved party to challenge a final order of the Board regarding a disciplinary
action.
In this case, the Order of Suspension was mailed to Appellant on
April 25, 2007. However, she did not file her petition for judicial review until
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August 18, 2008 – nearly 18 months later. This delay is fatal to Appellant’s
appeal. Our precedent holds that “[w]here an appeal is filed in the circuit court by
grant of a statute, as in this case, the parties must strictly comply with the dictates
of that statute.” Spencer County Preservation, Inc. v. Beacon Hill, LLC, 214
S.W.3d 327, 329 (Ky. App. 2007). This is because “[a]n appeal from an
administrative decision is a matter of legislative grace and not a right, and thus the
failure to strictly follow statutory guidelines for the appeal is fatal.” Id.; see also
Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978); Ky.
Unemployment Ins. Comm’n v. Providian Agency Group, Inc., 981 S.W.2d 138,
139-40 (Ky. App. 1998); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995).
The circuit court concluded that it lacked jurisdiction to consider Appellant’s
petition for judicial review because the petition had not been timely filed within the
statutory 30-day period; thus, dismissal was merited. This conclusion was the
correct one.
In an effort to avoid dismissal of her action, Appellant argues that the
Order of Suspension was not a final order because it did not specifically designate
itself as “final and appealable.” However, the circuit court concluded that, while
the Order of Suspension did not directly refer to itself as a “final and appealable
order,” it was clearly intended to act as such by Inquiry Panel B, and the language
of the order reflected that it was such. We agree with this characterization and
agree that the Order of Suspension contained sufficient notice that it was a final
and appealable order. For example, the Order clearly noted the Panel’s conclusion
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that Appellant had failed to comply with KRS 311.604 by failing to complete the
clinical skills assessment and – more importantly – its position that it could
consequently “issue a Final Order without the taking of testimony or presentation
of evidence.” Moreover, the Order expressly provided that Appellant had the right
to “appeal from this Order, pursuant to KRS 311.593 and 13B.140-150, by filing a
Petition for Judicial Review in Jefferson Circuit Court within thirty (30) days after
this Order is mailed or delivered by personal service,” thus indicating that the
Panel considered the Order of Suspension to be final in nature. Ultimately, we
believe that Appellant’s argument is little more than an exercise in semantics and
that the final nature of the Order of Suspension was made plain and obvious.
Appellant also contends that the Order of Suspension was somehow
not “final” because it did not address the disciplinary charges raised in the original
Complaint and Emergency Order of Suspension. Instead, she argues that the
administrative action was not finally concluded and subject to appeal until Inquiry
Panel B refused to consider the hearing officer’s Recommended Order of
Dismissal. However, we believe that this argument lacks merit and cite with
approval the circuit court’s reliance upon KRS 13B.010(6) in support of its
conclusion that the Order of Suspension was a final order subject to appeal. That
provision defines “final order” as “the whole or part of the final disposition of an
administrative hearing, whenever made effective by an agency head, whether
affirmative, negative, injunctive, declaratory, agreed, or imperative in form.”
Based on this language, the circuit court reasoned:
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As a matter of first impression, and with no input from
the parties, this Court construes KRS 13B.010(6) as
meaning that a final order need not dispose of all issues
in a case so long as the action taken conclusively imposes
an obligation, denies a right or fixes a legal relationship,
and is “made effective by the agency head.” This
interpretation is consistent with federal administrative
decisions, which have stated that “a final order need not
necessarily be the very last order in an agency
proceeding, but rather, is final for purpose of judicial
review when it imposes an obligation, denies a right or
fixes some legal relationship . . . .” Fidelity Television,
Inc. v. FCC, 502 F.2d 443,448 (D.C. Cir. 1974). The
court in Fidelity relied on its earlier holding in
Isbrandtsen v. United States, 211 F.2d 51, 55-56 (D.C.
Cir. 1954), cert. denied, 347 U.S. 990 (1954), for the
proposition that “the principle of finality in
administrative law is not . . . governed by the
administrative agency’s characterization of its action, but
rather by a realistic assessment of the nature and effect of
the order sought to be reviewed.” Fidelity, 502 F.2d at
448. See also Arizona Electric Power Coop., Inc. v. U.S.,
816 F.2d 1366, 1369 (9th Cir. 1987) (agency action may
be final even though the case is continued for the purpose
of considering other related matters).
***
The Order of Suspension unequivocally constituted a
material, adverse change to Gallien’s temporary
suspension in that it indefinitely suspended Gallien’s
right to practice medicine and imposed several
obligations upon her should she seek reinstatement.
Fidelity Television, Inc., supra, 502 F.2d at 448. Indeed,
indefinite suspension is inarguably one of the harshest
actions, if not the harshest action, the Board can take
against a physician’s license under KRS 311.595.
Perhaps even more relevant to the finality issue, her
indefinite suspension for failure to schedule the clinical
assessment would not be changed by the outcome of the
disciplinary charges that related to her alleged illegal
prescription practices. Whatever the outcome of these
charges, Gallien would still be indefinitely suspended for
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failure to schedule the competency assessment and could
not have her license reinstated until she completed the
assessment. All the facts Panel B used to make this
determination were therefore ripe for judicial review, and
there was no practical reason to delay an appeal.
We agree with the circuit court’s reasoning in this respect and adopt it as our own.
Consequently, we can reach no other conclusion than that the Order of Suspension
was a final order, thus bringing into play the statutory requirements of KRS
311.593 and KRS 13B.140 – including the 30-day deadline for filing a petition for
judicial rights set forth in KRS 13B.140(1).
In a final attempt to avoid dismissal, Appellant argues that the hearing
officer somehow had the authority to extend the time for filing a petition for
judicial review by reopening and reconsidering Inquiry Panel B’s Order of
Suspension, and that the administrative appeal did not become truly final until
Inquiry Panel B refused to consider the officer’s Recommended Order of
Dismissal. However, Appellant cites to no convincing authority that would
support this position. “[A]n administrative agency does not have any inherent or
implied power to reopen or reconsider a final decision and . . . such power does
not exist where it is not specifically conferred upon the agency by the express
terms of the statute creating the agency.” Kentucky Bd. of Med. Licensure v. Ryan,
151 S.W.3d 778, 780 (Ky. 2004), quoting Phelps v. Sallee, 529 S.W.2d 361, 365
(Ky. 1975). Appellant has referred us to no statutory authority within KRS
Chapter 13B or Chapter 311 that would allow a hearing officer to essentially
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override a final order of the Board months after it was issued. Thus, this argument
must also be rejected.6
Appellant’s remaining arguments have not been properly preserved
for appellate review, do not go to the substantive merits of the case, or otherwise
lack notable merit. Therefore, we reject them without further comment.
Conclusion
For the foregoing reasons, the Opinion and Order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Fox DeMoisey
Louisville, Kentucky
C. Lloyd Vest, II
General Counsel
Kentucky Board of Medical Licensure
Louisville, Kentucky
6
Although Appellant filed a petition for judicial review and a declaratory judgment action, her
appeal appears to be confined to the dismissal of the petition for judicial review. Therefore, we
decline to address any potential issues relating to the declaratory judgment action but note that
“[c]ourts are in general agreement that a declaratory judgment act is not a substitute or
alternative for such actions as are particularly provided for, to be brought in a particular way.”
Sullenger v. Sullenger’s Adm’x, 287 Ky. 232, 152 S.W.2d 571, 574 (1941); see also Cox v.
Howard, 261 S.W.2d 673, 675-76 (Ky. 1953). An attempt to challenge a disciplinary action of
the Kentucky Board of Medical Licensure would appear to fit within that restriction.
.
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