Andrew Kearse, D.C. v. Iowa Board of Chiropractic

• Court: Court of Appeals of Iowa
• Decided: June 5, 2019
• Docket: 18-0902
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0902 Filed June 5, 2019

ANDREW KEARSE, D.C., Plaintiff-Appellant,

vs.

IOWA BOARD OF CHIROPRACTIC, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Lee County, Mark E. Kruse, Judge.

Andrew Kearse appeals the district court’s dismissal of his application for

judicial review of a sanction imposed on him by the Iowa Board of Chiropractic.

AFFIRMED.

Curtis R. Dial of Law Office of Curtis Dial, Keokuk, for appellant.

Thomas J. Miller, Attorney General, and Tessa M. Register and Allison A.

Schmidt, Assistant Attorneys General, for appellee.

Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ. 2

VAITHESWARAN, Judge.

Several patients of Keokuk chiropractor Andrew Kearse complained that

Kearse touched them sexually during sessions. The Iowa Board of Chiropractic

found multiple acts of sexual misconduct and revoked Kearse’s chiropractor

license “for a minimum period of ten (10) years.” The district court affirmed the

agency decision.

Although Kearse denied some of the patients’ allegations, he does not

argue on appeal that the board’s detailed fact findings are unsupported by

substantial evidence. See Iowa Code § 17A.19(10)(f) (2015). Kearse simply

asserts “the sanction imposed was not warranted.” The board counters that it

possesses “wide discretion to impose discipline.” The board is correct.

Iowa Code section 151.9(3) authorizes revocation of a license to practice

as a chiropractor when the chiropractor “engag[es] in unethical conduct or practice

harmful or detrimental to the public.” See also id. § 147.55(3) (same); Iowa Admin.

Code r. 645-45.2(3) (same). Iowa Code section 147.55(9) authorizes revocation

for “[o]ther acts or offenses as specified by board rule.” Iowa Administrative Code

rule 645-45.2(28) states “unethical conduct may include . . . [i]mproper sexual

contact with, or making suggestive, lewd, lascivious or improper remarks or

advances to a patient, . . . regardless of the patient’s . . . consent.” Another rule

vests the board with discretion to consider the number and seriousness of

violations in addition to other factors in “determining the nature and severity of the

disciplinary sanction to be imposed.” Iowa Admin. Code r. 645-45.4. Because

statute and rule grant the board discretion to apply law to fact, we will reverse the 3

board’s sanction only if it is “irrational, illogical, or wholly unjustifiable.” See Iowa

Code § 17A.19(10)(m).

At the evidentiary hearing before the board, Kearse admitted to sexual

touching without chiropractic purpose and admitted to engaging in sex acts with

patients. Kearse testified to being taught in school about “[e]thical boundaries,”

stated it was his responsibility to set those boundaries with patients, and agreed

there was no ethical way to engage in sexual relationships with patients. He

acknowledged his actions were “a disgrace” to his profession and said he was “not

justifying” them. In his words, “They were my choices and they were . . . very

disgraceful and poor choices.” He conceded his conduct was unprofessional,

unethical, and outside the scope of his practice as a chiropractor, and he agreed

he had to be held accountable.

We conclude the board acted well within its discretion in revoking Kearse’s

chiropractor license for at least ten years. The revocation decision was not an

irrational, illogical, or wholly unjustifiable application of law to fact.