Davuluri v. State ex. rel. Oklahoma Bd. Of Med. Licensure & Supervision

Annotate this Case

Davuluri v. State ex. rel. Oklahoma Bd. Of Med. Licensure & Supervision
2000 OK 45
10 P.3d 198
71 OBJ 1594
Case Number: 91750
Decided: 06/13/2000
Mandate Issued: 07/21/2000
Supreme Court of Oklahoma

CHAUDHURY DHANA KOTESWARA DAVULURI, M.D., Plaintiff-Appellee,
v.
STATE OF OKLAHOMA, ex rel., OKLAHOMA BOARD OF MEDICAL LICENSURE AND SUPERVISION, Defendant-Appellant.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 3

¶0 The Court of Civil Appeals, in an opinion released by that court for publication, reversed a judgment in favor of Plaintiff entered by the District Court of Pontotoc County, Hon. Thomas S. Landrith, Judge. The trial court had reversed the Board of Medical Licensure's order denying Plaintiff a license to practice medicine. The Court of Civil Appeals reversed the trial court on the ground that district courts lack jurisdiction to hear appeals from decisions of the Board denying applications for licenses to practice medicine and that all such appeals must be taken to the Supreme Court. Plaintiff sought certiorari, which we granted on February 22, 2000.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, JUDGMENT OF THE TRIAL COURT AFFIRMED.

Daniel J. Gamino, Oklahoma City, Oklahoma, for Defendant_Appellant.

Kent F. Frates, Linda G. Scoggins, Melissa Beeson Heindselman, HARTZOG CONGER & CASON, Oklahoma City, for Plaintiff-Appellee.

Watt, Justice,

FACTS AND PROCEDURAL BACKGROUND

¶1 Plaintiff, Chaudhury Dhana Koteswara Davuluri, M.D., complains of an opinion of the Court of Civil Appeals, Division 3, holding that the trial court lacked jurisdiction to hear an appeal from an order of the Oklahoma Board of Medical Licensure and Supervision, which had denied Dr. Davuluri's application for a license to practice medicine. The Court of Civil Appeals held that an appeal from an order of the Board denying an application for a license to practice medicine may not be taken to the district court but "lies directly to the Supreme Court under

¶2 Dr. Davuluri graduated from Spartan Health Sciences University, School of Medicine, located in Vieux Fort, St. Lucia, West Indies, in 1985. In 1986 he was certified by the Educational Commission for Foreign Medical Graduates. ECFMG certification is a prerequisite for a graduate on a non-U.S. medical school to enter any residency or fellowship program accredited by the American Colleges of Medical Education. Dr. Davuluri was accepted to the medical graduate training program at the State University of New York at Syracuse, which, like the University of Oklahoma College of Medicine, is accredited by the American Colleges of Graduate Medical Education.

¶3 Dr. Davuluri completed his one year internship at SUNY, Syracuse in 1988 and began a three year residency there in obstetrics and gynecology. During the final year of his residency at SUNY, Syracuse, Dr. Davuluri was chief resident of the OB/GYN residency program. Dr. Davuluri graduated from SUNY, Syracuse's OB/GYN program in 1991 and had passed Parts I and II of the Federal Licensing Examination. All physicians must pass Parts I and II of the FLEX examination as a prerequisite to practicing medicine in the United States. Dr. Davuluri has since been licensed to practice medicine in Michigan, Nebraska, South Dakota, and West Virginia.

¶4 In 1991 Dr. Davuluri was employed as staff obstetrician and gynecologist at Carl Albert Indian Health Facility in Ada, Oklahoma. He was not required to have an Oklahoma license to practice medicine at that time as his unrestricted licenses from other states satisfied the Indian Health Service's requirements.

¶5 Dr. Davuluri applied to the Board for a license to practice medicine in Oklahoma in 1997. The Board's secretary issued Dr. Davuluri a temporary license, following which Dr. Davuluri left the Indian Health Service to establish an obstetrical and gynecological practice in Ada, and was granted privileges at Valley View Hospital in Ada.

¶6 It is undisputed that during the more than six years Dr. Davuluri practiced at the Indian Health Facility and was in private practice in Ada, no complaints were lodged and no medical malpractice actions were instituted against him. Dr. Davuluri presented letters of recommendation to the Board from the supervising OB/GYN at the Indian Health Facility and from its administrator that vouched for Dr. Davuluri's good character and professional skill.

¶7 The Board conducted a hearing on Dr. Davuluri's application for a permanent and unrestricted license to practice medicine on November 20, 1997. At the conclusion of the hearing the Board denied Dr. Davuluri's application and terminated his temporary license to practice medicine by a vote of five to one.

¶8 On December 2, 1997 Dr. Davuluri filed suit in the District Court of Pontotoc County under the authority of

¶9 In its written order dated December 5, 1997 the Board gave as the reasons that Dr. Davuluri failed to satisfy the licensure requirements of the Oklahoma Statutes,

The evidence reflects that Applicant's medical school was not substantially equivalent to the education and training offered by the University of Oklahoma College of Medicine; that Applicant has multiple examination failures, failing Component 1 of the Federation Licensing Examination (FLEX) four times and failing Component 2 of the FLEX twice; and that Applicant reported only three of these licensing examination failures on the Application for licensure."

The Board's order is silent with respect to Dr. Davuluri's successful completion of four years of postgraduate medical study at SUNY, Syracuse, his possession of licenses to practice medicine in four other states, and his more than six years of practice at the Carl Albert Indian Health Facility.

¶10 The trial court held a hearing on Dr. Davuluri's application for a temporary restraining order on December 16, 1997. On December 30, 1997 the trial court entered a temporary restraining order reinstating Dr. Davuluri's temporary license to practice medicine pending a final determination of his appeal of the board's ruling.

¶11 The matter was tried on the merits on July 13, 1998; on July 20, 1998 the trial court entered an order holding for Dr. Davuluri and ordered the Board to issue to Dr. Davuluri a full and unrestricted license to practice medicine.

¶12 The trial court held that Dr. Davuluri had presented evidence to the Board that overcame all of the factors cited by the Board as reasons for denying Dr. Davuluri's application for a permanent and unrestricted license to practice medicine in Oklahoma. The trial court found that the requirement contained in Subsection B of

¶13 Finally, the trial court held that the Board's failure to consider Dr. Davuluri's successful completion of medial training in the United States, his possession of licenses to practice medicine in four other states, and his years of practice at the Carl Albert Indian Health Facility was "clear error." The trial court held that Dr. Davuluri had presented relevant, reliable, material, probative, and substantial evidence showing that he satisfied all statutory requirements for a license to practice medicine.

¶14 The Board appealed the trial court's decision claiming that (1) the district court lacked jurisdiction to consider the appeal of the Board's ruling; (2) the trial court improperly substituted its judgment for that of the Board; (3) the trial court erred in holding that

¶15 ISSUES

We answer no to both questions.

DISCUSSION

THE TRIAL COURT CORRECTLY HELD THAT IT HAD JURISDICTION TO CONSIDER DR. DAVULURI'S APPEAL OF THE BOARD'S DECISION

¶16 This is an issue of first impression. We have not previously addressed whether an appeal from a decision of the Board of Medical Licensure and Supervision that has rejected an application for a medical license should be taken to the district court under the Administrative Procedures Act,

¶17 The Board contends that the district court lacked jurisdiction to consider Dr. Davuluri's appeal of the board's decision because

¶18 The Board also cites DiMauro v. Oklahoma State Board of Medical Examiners,

¶19 To the extent that either Naifeh or DiMauro might be construed to stand for the proposition that the district courts lack jurisdiction to consider appeals from refusal by the Board to grant a medical license, those opinions are expressly overruled. Similarly, the published opinion of the Court of Civil Appeals in Metcalf v. Oklahoma State Board of Licensure and Supervision,

¶20 The plain language of

II.

THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE BOARD'S DECISION TO DENY DR. DAVULURI'S APPLICATION FOR A MEDICAL LICENSE WAS CLEARLY ERRONEOUS

¶21 The Board argues that the trial court substituted its judgment for that of the Board. The Administrative Procedures Act,

¶22 The Board argues that the trial court violated § 321 by considering new evidence in the form of witnesses and exhibits not presented to the Board. We disagree. The witnesses and exhibits about which the Board complains were presented at the December 16, 1997 hearing on Dr. Davuluri's application for a temporary restraining order. The review of the merits of the appeal were not presented to the trial court until a hearing held on July 20, 1998. No witnesses testified and no exhibits were offered at that hearing. Further, there is no indication in either the transcript of the July 20, 1998 hearing or the trial court's order following it that the trial court considered evidence outside the record made before the Board in arriving at its decision on the merits of Dr. Davuluri's appeal.

¶23 The Board argues that the trial court should have deferred to its decision because the Board's "specialized knowledge may be used in the valuation of the evidence." Title

¶24 The Board's Order Denying Licensure relied, in part, on its conclusion that Dr. Davuluri's medical training was not substantially equivalent to that of the University of Oklahoma. The Board's attorney, however, admitted at the July 20, 1998 hearing that the Board had granted unrestricted licenses to other graduates of the medical school from which Dr. Davuluri had graduated. Further, the Board's secretary had granted Dr. Davuluri a temporary license.

¶25 By statute, before granting a temporary license, the secretary was required to conclude that Dr. Davuluri was "an applicant demonstrably qualified for a full and unrestricted medical license under the requirements set by this act and the rules of the Board." Subsection D.1,

¶26 In its briefs, the board made much of Dr. Davuluri's failure to report all of his attempts to pass the FLEX exam, going so far as to characterize Dr. Davuluri's failure to do so as "misrepresentation." We note, however, that the Board in its Order Denying Licensure made no finding of misrepresentation. Dr. Davuluri took part I of the FLEX exam five times, never failing it by more that four points, and failing by only one point on his third and fourth attempts. Dr. Davuluri took Part II of the FLEX exam three times, failing by three points on his first attempt and two on his second attempt. In his application Dr. Davuluri accurately reported that he had taken Part II three times but indicated that he had taken Part I three times rather than five.

¶27 We hold that the trial court did not abuse its discretion in holding that Dr. Davuluri's understatement of the number of times he had taken the FLEX exam did not misrepresent his qualifications. Having admitted that he had taken Parts I and II of the FLEX exam six times, there is no showing that Dr. Davuluri had anything to gain by failing to state in his application that he had actually taken them eight times. Thus, the record supports the trial court's finding that "There is no evidence in the record that Dr. Davuluri intentionally misrepresented the number of examination failures in order to acquire an Oklahoma license."

¶28 The Board makes no attempt to explain why Dr. Davuluri's qualifications to practice medicine in Oklahoma are not established by Dr. Davuluri's successful completion of four years of post graduate study at SUNY, Syracuse, his six years of successful OB/GYN practice at the Carl Albert Indian Health Facility, and his attainment of unrestricted licenses to practice medicine in the states of Michigan, Nebraska, South Dakota, and West Virginia. The trial court found that these factors are "relevant, reliable, material, probative, and substantial" and that "the Board's failure to consider such evidence is clear error." We hold that the record supports the trial court's findings and its order directing the Board to grant Dr. Davuluri an unrestricted medical license.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, JUDGMENT OF THE TRIAL COURT AFFIRMED.

¶29 SUMMERS, C.J., HARGRAVE, V.C.J., LAVENDER, WATT, BOUDREAU, and WINCHESTER, JJ. - concur.

¶30 OPALA, J. - concurring in the court's disposition and dissenting from today's pronouncement.

¶31 KAUGER, J. - concurs in part, dissents in part.

FOOTNOTES

1Title 59 O.S. Supp. 1998 § 513 provides, in material part:

2Title 75 O.S. Supp. 1992 § 318 provides:

A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title.

2. This section shall not prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions.

3. Neither a motion for new trial nor an application for rehearing shall be prerequisite to secure judicial review.

B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court.

2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title.

C. Copies of the petition shall be served upon the agency and all other parties of record, and proof of such service shall be filed in the court within ten (10) days after the filing of the petition. The court, in its discretion, may permit other interested persons to intervene.

D. In any proceedings for review brought by a party aggrieved by a final agency order:

1. The agency whose final agency order was made subject to review may be entitled to recover against such aggrieved party any court costs, witness fees and reasonable attorney fees if the court determines that the proceeding brought by the party is frivolous or was brought to delay the effect of said final agency order.

2. The party aggrieved by the final agency order may be entitled to recover against such agency any court costs, witness fees, and reasonable attorney fees if the court determines that the proceeding brought by the agency is frivolous.

3Title 59 O.S. 1991 § 495e provides:

Any licensee whose reregistration application is rejected by the Board, shall have the right to appeal from such action to the district court of the county of residence. If the licensee does not reside or practice in Oklahoma, appeal shall be to the Oklahoma County District Court.

4Title 75 O.S. 1991 § 321 provides:

The review [of the order of an administrative agency] shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court.

5Title 75 O.S. 1991 § 322 provides:

(1) In any proceeding for the review of an agency order, proceeding for the review of an agency order, the Supreme Court or the district court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or

(f) arbitrary or capricious; or

(g) because findings of fact, upon issues essential to the decision were not made although requested.

(2) The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue.

(3) The reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant.

6Title 59 O.S. Supp. 1995 § 323.3 provides in material part:

. . .

D. The Board may authorize the secretary to issue a temporary medical license for the intervals between Board meetings. A temporary license shall be granted only when the secretary is satisfied as to the qualifications of the applicant to be licensed under this act but where such qualifications have not been verified to the Board. A temporary license shall:

1. Be granted only to an applicant demonstrably qualified for a full and unrestricted medical license under the requirements set by this act and the rules of the Board; and

2. Automatically terminate on the date of the next Board meeting at which the applicant may be considered for a full and unrestricted medical license.

. . .

[Emphasis added.]

7The trial court found that Subsection B of 59 O.S. Supp. 1997 § 493.2, which provides that a foreign applicant's training shall have been " . . . based on satisfactory completion of educational programs from a school with education and training substantially equivalent to that offered by the University of Oklahoma College of Medicine," was unconstitutionally vague. The trial court also found, however, that Dr. Davuluri had proved that his training had been substantially similar to that offered by the University of Oklahoma College of Medicine. Because the record supports the trial court's finding that Dr. Davuluri s medical training qualifies him for a medical license, we assume for the purposes of this opinion that 59 O.S. 493.2. is constitutional and expressly decline to address here the issue of its constitutionality.

OPALA, J.

¶1 Today's opinion affirms the nisi prius order that directs the State Board of Medical Licensure and Supervision [Board]1 to grant a medical license to the plaintiff-appellee, Dr. Chaudhury Dhana Koteswara Duvuluri, M.D. [Dr. Duvuluri]. While the court's conclusion that this Board's order may be reviewed in the district court is consistent with my dissenting message in Naifeh,2 its pronouncement reinfuses Naifeh's core holding with a claim to constitutional orthodoxy which I continue to reject. Although I join in the court's disposition, I must recede from its opinion. Writing separately, I (a) reaffirm today my commitment to the Naifeh dissent and (b) condemn, as offensive to Art. 5, § 46, Okl.Const.,3 the court's trichotomous4 division5 of cases that may be brought for judicial review of the Board's decision. The division effected today impermissibly fashions three different regimes of appellate procedure for a single indivisible class of litigants that of healing-art practitioners aggrieved by a licensing or disciplinary order of an agency charged with regulating their status and practice. The pronouncement restricts to disciplinary decisions6 alone the appeals from the Board7 which may be lodged in the Supreme Court and excludes from that avenue of corrective relief cases in which review is sought of the Board's refusal initially to grant a medical license. Appeals from orders that fall into the latter class are set apart and held to lie solely to a district court in the county of an aggrieved applicant's residence. The third class implicitly formed will comprise appeals from the Board's license reregistration denial. Those appeals are statutorily required to be lodged in the district court.8

MY RECOMMITMENT TO

THE NAIFEH DISSENT9 OF YORE

¶2 Naifeh holds that the provisions of 59 O.S. 1971 § 51310 afford a constitutionally permissible barrier to a medical practitioner's district court appeal for review of the Board's order in a disciplinary proceeding. My own conclusion in Naifeh, to which I continue to cling, was that the court's interpretation of § 513 offended the due process clause of Art. 2, § 7, Okl.Const.11 Persons licensed as physicians and surgeons have been since 1935 (and are now) the only group of healing-art practitioners who may appeal directly to the Supreme Court from the Board's discipline-related orders. All persons licensed as healing-art practitioners and all those in various health-care fields of practice12 have access to two appeals,13 but this benefit stands explicitly withheld from a single profession that of physicians and surgeons. The due process clause in Art. 2, § 7, Okl.Const., has a definitional range that is coextensive with its federal counterpart.14 The latter (and hence our own) contains a built-in antidiscrimination component which affords protection against unreasonable (or unreasoned) classifications that serve no "important governmental objectives."15

¶3 Neither in Naifeh nor here can I isolate a single compelling governmental objective that would legitimately support the discriminatory regime for appeals by physicians and surgeons. When tested by the standards of due process, both current and of yore, and by the standards of Art. 5, § 46, Okl.Const.,16 the court's isolation of the Board's disciplinary rulings for a different appellate regime cannot pass constitutional muster.

TODAY'S TRICHOTOMY OF BOARD

APPEALS IS CONTRARY TO THE APA'S UNIFORMITY

MANDATE FOR REVIEW OF ADMINISTRATIVE DECISIONS

¶4 The Administrative Procedures Act [APA] envisions a single regime of judicial review for agency rulings, which is to be exclusive of all others except when distinctive norms of procedure are mandated by some contrary constitutional provisions.17 Section 318 of the APA introduced the concept of initial district court review on the record which is then to be followed by an appeal to this court.18 Any notion that appeals from the Board's decisions, though governed by the APA, may be modified by nonconforming statutory provisions would defeat and destroy the APA's primary mandate for providing a uniform code of adjective law to govern all state regulatory agencies. Departures from this code cannot survive unless they be explicitly commanded by a contrary provision of the state constitution.19

¶5 The Board is a State agency subject to the APA-structured Art. II procedure.20 It is not among entities explicitly exempted from compliance with the Act's provisions.21 The regime of APA-prescribed judicial review governs all licensed practitioners in medicine and surgery. Its norms are not contrary to any applicable constitutional text that explicitly targets physicians and surgeons. Today's pronouncement impermissibly trichotomizes appeals from the Board's decisions into disuniformity-injecting subclasses cases for review of (1) disciplinary sanctions, which by the language of 59 O.S.Supp. 1994 § 51322 are said to lie exclusively to the Supreme Court; (2) an initial license application's denial, for the appellate cognizance of which the district court is today declared to be competent,23 and (3) rejected medical reregistration application,24 governed by the explicit terms of 59 O.S.Supp.1994 § 495e,25 which designate the district court (of the county of licensee's residence) as the proper forum for corrective relief.

III

THE PROCEDURAL UNIFORMITY COMMANDED BY ART. 5, § 46, OKL.CONST.

¶6 Art. 5, § 46, Okl.Const., mandates in absolute terms statewide procedural uniformity for an entire class of similarly situated persons or things.27 Its relevant terms expressly prohibit the legislature from regulating by special or local law procedure before the courts.28 Although directed to the legislature, the terms of § 46 are equally binding on the courts.29 This court's own jurisprudence, no less than the legislature's enactments, must faithfully conform to the fundamental law's prohibition against disuniform (or non-uniform) laws on prohibited subjects.30 Judicial procedure is a subject explicitly protected from invasion by the Legislature- and hence by the court-injected disuniformity.

¶7 Appeals by healing-art and health-care practitioners for review of both licensing and disciplinary decisions of the pertinent regulatory agency comprise but a single indivisible class. All statutes governing judicial review of those agency orders must be symmetrical and apply across the board.31 There is no constitutional exemption from the uniformity-of-procedure mandate which could save from invalidation those provisions of § 51332 which authorize a Supreme Court appeal for physicians and surgeons who deem themselves aggrieved by the Board's disciplinary ruling.

¶8 Today's reaffirmation of Naifeh an opinion that singles out for less favorable adjective-law treatment physicians and surgeons who seek corrective relief from the Board's disciplinary dispositions by denying them the benefit afforded other practitioners of the healing arts offends Art. 5, § 46. A rule of civil appellate procedure applicable solely to physicians and surgeons contravenes the notion of adjective-law uniformity so absolutely imposed by § 46. Appeals from disciplinary orders brought to the district court under § 513 cannot pass constitutional muster when tested by the standards of § 46. Because Naifeh plainly offends the uniformity-of-procedure strictures clearly mandated by that section, I would overrule its holding as a flawed exposition of Oklahoma's fundamental law.

SUMMARY

¶9 I reaffirm today, with undiminished fervor, my commitment to the Naifeh dissent, where the court held the provisions of 59 O.S.1971 § 513 to be free from constitutional infirmity and required that all appeals from the Board's disciplinary decisions against physicians and surgeons be lodged in the Supreme Court, even though appeals from agencies that regulate other healing-art professionals and health-care providers are required to be made to the district court. Naifeh violates § 46 as well as the antidiscrimination component of Oklahoma's due process clause.

¶10 Today's decision imposes an impermissible trichotomous division of appeals brought from the Board. It is contrary to the APA-created uniformity mandate as well as offensive to Art. 5, § 46, Okl. Const. Its terms foist on the body of Oklahoma's jurisprudence an interdicted special-law that adversely affects the indivisible class of licensed healing-art professionals. While the court's recent § 46 uniformity-of-procedure jurisprudence will not receive plaudits as entirely Simon-pure,33 its pronouncement in this case signals an even wider departure from the attempted symmetry of yesteryear.

¶11 In short, I would hold that § 46 commands that all appeals from the Board be lodged in the district court. This would preserve the uniformity-of-procedure mandate for judicial review by appeals of healing-art and health-care practitioners from all rulings of their regulatory agencies.

¶12 I hence concur only insofar as the court affirms the district court's disposition which directs the Board to grant Dr. Davuluri a medical license; I dissent from today's pronouncement. The latter reinfuses Naifeh with a claim to constitutional orthodoxy which I would once again withhold from Oklahoma jurisprudence.

¶13 APPENDIX

¶14 Licensed practitioners of the healing-art and health-related fields (all statutory citations are to Title 59, Oklahoma Statutes, Professions and Occupations).

PROFESSION & REGULATORY

APPEALS PROVISIONS

APPEALS TO

¶15 I. HEALING ARTS

¶16

1. Chiropractic

59 O.S.Supp.1999 §§161.12(C),

District Court

59 O.S. 1991 §§ 161.1 et seq.

161.13 - Direct appeal

¶17

2. Dentistry & Dental Hygiene

59 O.S. Supp. 1996 §328.44a(B)

District Court

59 O.S. 1991 §§ 328.1 et seq.

Direct appeal

¶18

3. Medicine and Surgery

59 O.S.Supp.1998 § 513

Supreme Court

59 O.S.1991 §§ 481 et seq.

Direct appeal

¶19

4. Optometry

APA seems to govern -

District Court

59 O.S.1991 §§ 581 et seq.

no specific appeal provision

¶20

5. Osteopathy

59 O.S.Supp.1993 § 637(D)

District Court

59 O.S.1991 §§ 620 et seq.

Direct appeal

¶21

6. Physician Assistant

APA seems to govern -

District Court

59 O.S.Supp.1998 §§ 519.1 et seq.

no specific appeal provision

¶22

7. Podiatry

59 O.S.Supp.1997 §147(D)

District Court

59 O.S.1991 §§ 135.1 et seq.

Direct appeal

¶23 II. HEALTH-RELATED FIELDS

¶24

1. Athletic Trainers

APA seems to govern -

District Court

59 O.S.1991 §§ 525 et seq.

no specific appeal provisions

¶25

2. Barbers

APA seems to govern -

District Court

59 O.S. 1991 §§ 61.1 et seq.

no specific appeal provision

¶26

3. Cosmetology

59 O.S.Supp.1994 §199.3(B)(8)

District Court

59 O.S.Supp.1994 §§199.1 et seq.

Direct appeal

¶27

4. Licensed Dietitians35APA seems to govern -

District Court

59 O.S. 1991 §§1721 et seq.

no specific appeal provisions

¶28

5. Electrology

APA seems to govern

District Court

59 O.S.1991 §§ 536.1 et seq.

no specific appeal provisions

¶29

6. Embalmers

59 O.S. 1991 § 396.12f(C)

District Court

59 O.S. 1991 §§ 395.1 et seq.

Direct appeal

¶30

7. Licensed Professional Behavioralist APA seems to govern

District Court

59 O.S. 1991 §§ 1930 et seq.

no specific appeal provisions

¶31

8. Licensed Perfusionist

59 O.S. Supp. 1996 § 2068(B)

District Court

59 O.S. Supp. 1996 §§ 2051 et seq.

Direct appeal

¶32

9. Licensed Professional Counselor

APA seems to govern -

District Court

59 O.S.Supp.1995 §§ 1901 et seq.

no specific appeal provisions

¶33

10. Marital and Family Therapist

59 O.S.1991 §1925.13

District Court

59 O.S.1991 §§ 1925.1 et seq.

1925.15(C) Direct appeal

¶34

11. Nurses

59 O.S.Supp. 1996 § 567.8(G)

District Court

59 O.S. 1991 §§ 567.1 et seq.

Direct appeal

¶35

12. Occupational Therapy

APA seems to govern

District Court

59 O.S.1991 §§ 888.1 et seq.

no specific appeal provisions

¶36

13. Pharmacy

59 O.S.Supp.1993 § 353.26(B)

District Court

59 O.S. 1991 §§ 353 et seq.

Direct appeal

¶37

14. Physical Therapy

APA seems to govern

District Court

59 O.S. 1991 §§ 887.1 et seq.

no special appeal provisions

¶38

15. Psychology

59 O.S.Supp.1998 § 1370(D)

District Court

59 O.S. 1991 §§1351 et seq.

Direct appeal

¶39

16. Respiratory Care

59 O.S. Supp. 1995 § 2041(C)

District Court

59 O.S. Supp.1995 §§ 2026 et seq.

Direct appeal

¶40

17. Sanitarian(or environmental specialist)

APA seems to govern no specific appeal provisions

District Court

59 O.S.1991 §§ 1150.1 et seq.

¶41

18. Speech Pathology and Audiology

59 O.S.Supp. 1998 §1619(D)

District Court

59 O.S.Supp.1998 §§ 1601 et seq.

Direct appeal

¶42

19. Veterinarian

59 O.S.Supp.1999 § 698.14a(M)(3)

District Court

59 O.S. 1991 §§ 698.1 et seq.

Direct appeal

¶43

20. Water & Sewage Works

59 O.S.Supp.1994 § 1111

District Court

59 O.S. 1991 §§ 1101 et seq.

Direct appeal

FOOTNOTES

1 The Board was formerly known as the State Board of Medical Examiners. 59 O.S.1981 § 481. Its name was changed in 1987 to that which it presently bears the State Board of Medical Licensure and Supervision. 59 O.S.Supp.1987 §§ 481, 481.1.

2 State ex rel. State Bd. of Med. Exam'rs v. Naifeh, 1979 OK 105, 598 P.2d 225, 226 (Opala, J., dissenting).

3 The pertinent terms of Art. 5, § 46, Okl. Const., are:

The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * *

Regulating the practice or jurisdiction of . . . in judicial proceedings or inquiry before the courts . . . or other tribunals. . . .

(emphasis supplied).

4 The term "trichotomous" means "divided or dividing into three parts or into threes." Webster's Third New International Dictionary at 2442 (1961). The term "trichotomy" means a "dividing into three parts, elements, or classes" or "a system divided or divisible into three constituents or elements." Id. at 2442.

5 The trichotomy effected consists of these subclasses: appeals from (1) disciplinary sanctions, (2) initial license application's denial, and (3) rejected medical reregistration application. For a more detailed explanation of why and how the instant pronouncement divides appeals from the Board into three separate subclasses, see Part II of the opinion.

6 The court's pronouncement rests on the provisions of 59 O.S. Supp.1994 § 513, the statute in force when this appeal was lodged. Its terms provided in pertinent part:

The Board is hereby given quasi-judicial powers while sitting as a Board for the purpose of revoking, suspending or imposing other disciplinary actions upon the license of physicians or surgeons of this state, and appeals from its decisions shall be taken to the Supreme Court of this state within thirty (30) days of the date that a copy of the decision is mailed to the appellant, as shown by the certificate of mailing attached to the decision. . . .

(emphasis supplied).

The changes in the 1998 version do not affect the issues in contest here.

7 For the statutory scheme of regulation by the State Board of Medical Licensure and Supervision, see 59 O.S.Supp.1998 §§ 481 et seq.

8 59 O.S.Supp.1994 § 495e. See its text, infra note 25.

9 Naifeh, supra note 2 at ¶¶1-8, 225-26 (Opala, J., dissenting).

10 The terms of 59 O.S. 1971 § 513 (which are similar to the version applicable to this cause, see supra note 6) provided:

The Board of Medical Examiners of the State of Oklahoma is hereby given quasi-judicial powers while sitting as a Board for the purpose of revoking or suspending the license of physicians and/or surgeons of this State, and appeals from its decisions shall be taken to the Supreme Court of this State. . . .

11 The terms of Art. 2, § 7, Okl.Const., are:

No person shall be deprived of life, liberty, or property, without due process of law.

12 See the detailed Appendix that follows the text of this opinion for citations to various licensing and regulatory acts that govern the multitude of healing-art and health-care practitioners. Physicians and surgeons remain the only licensed healing-art practitioners and health-care providers who stand excluded from district court access for appeals in disciplinary cases.

13 75 O.S.Supp.1992 § 318. See its text, infra note 18. An appeal lies first to the district court and thence here, with an opportunity afforded one for a third (certiorari) review if the second appeal were to be assigned to the Court of Civil Appeals.

14 McKeever Drilling Co. v. Egbert, 1934 OK 763, 40 P.2d 32, 35.

15 Davis v. Passman, 442 U.S. 228, 234-35, 99 S. Ct. 2264, 2271, 60 L. Ed. 2d 846 (1979); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954).

16 For the pertinent terms of Art. 5, § 46, Okl.Const., see supra note 3.

17 Conoco, Inc. v. State Dept. of Health of State of Okl., 1982 OK 94, ¶12, 651 P.2d 125, 128-29.

18 The pertinent terms of 75 O.S.Supp.1992 § 318 are:

2. This section shall not prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions.

3. Neither a motion for new trial nor an application for rehearing shall be prerequisite to secure judicial review.

(emphasis supplied).

Robbins v. Oklahoma Alcoholic Beverage Control Bd., 1969 OK 202, ¶12, 461 P.2d 610, 612; Frank v. Okla. Real Estate Commission, 1973 OK 67, ¶2-10, 512 P.2d 190, 191-92; Baggett v. Webb, 1976 OK 176, ¶¶16, 21, 557 P.2d 433, 435; Trask v. Johnson, 1969 OK 57, ¶9, 452 P.2d 575, 577-78.

19 Trask, supra note 18 at 578; Lowry v. Board of Chiropractic Examiners, 1981 OK 80, ¶¶7-10, 631 P.2d 737, 738-39; Roussel v. State ex rel. Grimes, 1980 OK 101, ¶¶23-25, 614 P.2d 53, 58-59; Isbell v. State, 1979 OK 156, ¶6, 603 P.2d 758, 760; Baggett, supra note 18 at 435; Frank, supra note 18 at 192.

20 The terms of 75 O.S.1991 § 250.1(B) provide in pertinent part:

A. The Administrative Procedures Act shall be composed of two Articles. Sections 250, 250.1, 250.3, 250.4, 250.5, and 250.8 of this title are applicable to both Articles I and II. Article I relating to agency filing and publication requirements for rules shall consist of Sections 250.2, 250.6, 250.7 and 250.9 through 308.2 of this title and Section 5 of this act. Article II relating to agency notice and hearing requirements for individual proceedings shall consist of Sections 308a through 323 of this title.

B. Except as is otherwise specifically provided in Section 250.4 of this title, all agencies shall comply with the provisions of Article I and Article II of the Administrative Procedures Act.

21 The terms of 75 O.S.Supp.1994 § 250.4(B) list those State agencies (or those classes of agency activities) explicitly exempted from compliance with the provisions of Article II of the APA. 75 O.S.1991 §§ 308a et seq. The Board of Medical Licensure and Supervision is not among the agencies that stand exempted, nor is review of the Board's disciplinary orders so exempted.

22 For the pertinent terms of 59 O.S.Supp.1994 § 513 see supra note 6.

23 The court's conclusion, in which I concur, is without an explicit statutory warrant. The licensure statutes (59 O.S.1991 §§ 493.1-493.4, 494.1, 495) are devoid of any explicit prescription for appeals from denial of a physician's or surgeon's initial license application.

24 The terms of 59 O.S.Supp.1994 § 495 A. 1 require licensees annually to demonstrate to the Board their continuing qualification to practice in the field of medicine and surgery.

25 The terms of 59 O.S.Supp.1994 § 495e are:

(emphasis supplied).

26 For the text of Art. 5, § 46, Okl.Const., see supra note 3.

27 See Johnson v. Tony's Town Mister Quik, 1996 OK 138, ¶5, 915 P.2d 355, 357-58; Reynolds v. Porter, 1988 OK 88, ¶¶13-19, 760 P.2d 816, 822; Maule v. Independent School Dist. No. 9, 1985 OK 110, ¶12, 714 P.2d 198, 203-204.

28 Maule, supra note 27 at 203-204; Reynolds, supra note 27 at 822; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, ¶12, 846 P.2d 1088, 1095-1096 (Opala, J., concurring). "Fundamental fairness cannot be afforded except within a framework of orderly procedure." Joiner v. Brown, 1996 OK 112, ¶6, 925 P.2d 888, 890, citing Pryse Monument Company v. District Court of Kay County, 1979 OK 71, ¶5, 595 P.2d 435, 438. " * * * It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.'" Joiner, supra at 890 n.4, quoting from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179, 71 S. Ct. 624, 652, 95 L. Ed. 817 (1951) (Douglas, J., concurring).

29 Reynolds, supra note 27 at 822.

30 Id.

31 The across-the-board symmetry came to be extended by the court's adoption of a uniform standard of review for academically credentialed state licensed professionals in medicine and dentistry. Johnson v. Bd. of Gov. of Registered Dentists, 1996 OK 41, ¶5, 913 P.2d 1339, 1351-52 (Opala, J., concurring); Robinson v. State ex rel. Okl. State Bd. of Medical Licensure and Supervision, 1996 OK 145, ¶10, 916 P.2d 1390, 392-93.

32 For the pertinent terms of 59 O.S.Supp.1994 § 513 see supra note 6.

33 [I] Recent cases that address themselves to the uniformity-of-procedure mandate. State ex rel. Macy v. Board of County Com'rs of County of Oklahoma, 1999 OK 53, ¶14, 986 P.2d 1130, 1139 (dealing with uniformity of procedure for county budget protests by county government and county taxpayers); Nelson v. Nelson, 1998 OK 10, ¶¶2-14, 954 P.2d 1219, 122933 (Opala, J., concurring in part and dissenting in part) (addressing the statewide (territorial) uniformity mandate for rules of civil procedure and the interdiction of countywide (or local) rules affecting the powers and duties of county officers); Bank IV Oklahoma v. Southwestern Bank & Trust Co., 1997 OK 31, ¶5-6, 935 P.2d 323, 327-29 (Opala, J., dissenting) (discussing the procedural uniformity mandate for a single regime of appellate practice in the 77 counties); Rollings v. Thermodyne Industries, Inc., 1996 OK 6, ¶13, 910 P.2d 1030, 1040-41 (Opala, J., concurring in result) (discussing the uniformity of procedure for a single class of "contract litigants" which includes those with or without a predispute arbitration agreement); Price v. Walters, 1996 OK 63, ¶9, 918 P.2d 1370, 1383-86 (Opala, J., dissenting) (addressing the procedural symmetry of Oklahoma's remedial regime for similarly situated litigants); Sparlin v. Jackson, 1996 OK 69, ¶8, 918 P.2d 740, 742-43 (dealing with the uniformity of procedure for appeals from the district court and from the Corporation Commission); Tony's Town Mister Quik, supra note 27 at 357-58 (dealing with the procedural symmetry of general rules of appellate practice and their across-the-board application to the review process of workers' compensation decisions); Meadows v. Pittsburg County Board of County Commissioners, 1995 OK 65, ¶4, 898 P.2d 741, 743-44 (addressing the procedural uniformity mandate for appeals in both public and private tort actions); Southwestern Bell Telephone Co. v. Oklahoma Corp. Com'n, 1994 OK 38, ¶¶4, 28-29, 873 P.2d 1001, 1011-12, 1026-27 (Opala, J., dissenting) (addressing uniformity of procedure for individual ratemaking in APA-governed agencies and before the Corporation Commission); Haynes v. Tulsa Public Schools Transit, 1994 OK 86, ¶¶4-5, 879 P.2d 128, 129-31 (discussing the procedural uniformity of the cost-deposit regime for district court appeals as well as for review proceedings from other tribunals); Massey v. Farmers Insurance Group, 1992 OK 80, ¶12, 837 P.2d 880, 891 (Opala, C.J., concurring in result) (addressing procedural uniformity in the trial mode for an entire class of contract-litigating parties); State v. Lynch, 1990 OK 82, ¶9, 796 P.2d 1150, 1168 (Opala, V.C.J., concurring in part and dissenting in part)(addresses the procedural uniformity mandate for a public defense system that would equalize the public-service burden among lawyers in all counties); Henry v. Corporation Com'n of State of Okl., 1990 OK 103, ¶5, 1990 OK 104, 825 P.2d 1262, 1271-72 (Opala, V.C.J., concurring)(dealing with uniformity of an agency's procedural regime that governs notice of proposed utility rate increases); Johnson v. District Court of Oklahoma County, 1987 OK 47, ¶2, 738 P.2d 151, 154 (Opala, J., concurring)(discussing the interdiction of legislative acts that would make general rules of practice before the courts subject to some narrow exception applicable to discovery only in a select subclass of torts medical and hospital malpractice suits as distinct from other death or personal injury litigation); Johnson v. State Board, supra note 31 at 1351-52 (Opala, J., concurring)(discussing the across-the-board symmetry for standard of persuasion for license revocation of dentists and similarly situated professionals); A. E. v. State, 1987 OK 76, ¶14, 743 P.2d 1041, 1049 (Opala, J., concurring in Parts I-IV and dissenting from Part V)(discussing the procedural uniformity for parental termination proceedings).

[II] Cases dealing with uniformity-of-procedure mandate as well as with interdiction against local or special laws regulating (a) limitation of actions and (b) elections.

Cruse v. Bd. of County Com'rs of Atoka County, 1995 OK 143, ¶9, 910 P.2d 998, 1008-09 (Opala, J., dissenting) (addressing the procedural uniformity mandate and interdiction of special laws that regulate limitation of actions for public torts and private wrongs); Rockwell International v. Hampton, 1994 OK 137, 886 P.2d 992, 993 (Kauger, J., dissenting)(addressing the procedural uniformity-of-time limits for counterappeals and cross-appeals for review of district court rulings and for review proceedings from workers' compensation decisions); Schones v. Town of Canute, 1993 OK 90, 858 P.2d 436, 442-43 (Opala, J., dissenting) (discussing the interdiction of special time bars for insurance litigation as distinct from other contract actions); Simpson v. Dixon, 1993 OK 71, ¶¶15-17, 853 P.2d 176, 183-85 (dealing with the statewide procedural uniformity in municipal election protests); Ross v. Kelsey Hayes, Inc., 1991 OK 83,¶¶8, 10, 825 P.2d 1273, 1283-84 (Opala, C.J., dissenting)(addressing the uniformity of procedure for defendants (both served and unserved in an earlier suit) for application of the one-year savings provision 12 O.S.1991 § 100); Reynolds, supra note 27 at 822 (dealing with interdiction of special laws regulating limitations in civil actions, which protects an arbitrarily selected group of tortfeasors but is not imposed upon other tortfeasors in the class); Roberts v. South Oklahoma City Hospital Trust, 1986 OK 52, ¶3, 742 P.2d 1077, 1084-85 (Opala, J., concurring)(discussing procedural uniformity of the laws regulating limitation of actions and of the general norms of trial practice for all nonpublic tortfeasors as distinct from governmental tortfeasors).

34 The healing art of dentistry appears to include such providers as dentists, dental hygienists, dental assistants, dental laboratory technicians, and holders of a permits to operate a dental laboratory. 59 O.S.Supp.1996 § 328.44a(A)(B).

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