Davuluri v. State ex rel. Oklahoma Board of Medical Licensure & Supervision

2000 OK 45, 10 P.3d 198, 71 O.B.A.J. 1594, 2000 Okla. LEXIS 42, 2000 WL 767546

• Court: Supreme Court of Oklahoma
• Decided: June 13, 2000
• Docket: No. 91,750
• Status: Published

Opinions

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 59 0.8. 513."¹

12 Dr. Davaluri 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. Da-vuluri 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.

T3 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.

T5 Dr. Davuluri applied to the Board for a license to practice medicine in Oklahoma in 1997. The Board's secretary issued Dr. Da-vuluri 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.

T6 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.

T7 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.

I 8 On December 2, 1997 Dr. Davuluri filed suit in the District Court of Pontotoc County under the authority of 75 0.8. Supp.1992 318 of the Oklahoma Administrative Procedures Act.² Dr. Davuluri contended that the Board's decision was, among other things, clearly erroneous and arbitrary and capricious. Dr. Davuluri also sought a temporary restraining order staying enforcement of the Board's order pending a final decision on the merits of his appeal.

¶ 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, 59 0.8. 481, et seq. the following:

"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. Davu-Turi 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 59 0.8. Supp. 1997 493.2 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.

¶ 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; (8) the trial court erred in holding that 59 0.8. Supp 1997 498.2.B was unconstitutional; and (4) the Board's decision was supported by evidence in the record.

¶ 15 ISSUES

I. Did the district court lack jurisdiction to consider Dr. Davuluri's appeal of the Board's decision?

II. Did the trial court err in holding that the Board improperly ignored relevant evidence and that the totality of the evidence showed that Dr. Davalu-ri had satisfied the statutory requirements for a license to practice medicine in the state of Oklahoma?

We answer no to both questions.

DISCUSSION

I.

THE TRIAL COURT CORRECTLY HELD THAT IT HAD JURISDICTION TO CONSIDER DR. APPEAL OF THE BOARDS 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, 75 O.S. Supp.1992 318, or directly to this Court under the Oklahoma Allopathic Medical and Surgical Licensure and Supervision Act, 59 O.S. Supp.1998 513. We hold that such appeals are governed by the Administrative Procedures Act and must be taken to the district court.

17 The Board contends that the district court lacked jurisdiction to consider Dr. Da-vuluri's appeal of the board's decision because 59 0.8. Supp.1998 518 provides that appeals from "disciplinary actions upon the license of physicians" of the Board "shall be taken to the Supreme Court of this state." Although § 513 refers only to "disciplinary actions," the Board claims that our opinion in State ex rel. State Board of Medical Examiners v. Naifeh, 1979 OK 105, 598 P.2d 225 stands for the proposition that even appeals from a decision of the Board refusing to grant a license must be made directly to this Court. We disagree. In Naifeh we considered an appeal from an order of the Board, which placed a physician on probation. The action of the Board in Naifeh clearly was a "disciplinary action" of the Board. Thus, in Naifeh, we did not consider whether an appeal from a refusal by the Board to grant a license should be taken to the district court. Naifeh, therefore does not support the proposition that all Board appeals must be taken to this Court.

T18 The Board also cites DiMauro v. Oklahoma State Board of Medical Examiners, 1989 OK 31, 769 P.2d 759 in support of its contention that appeals from the refusal to grant a medical license must be to this Court. Again, we disagree. Although the DiMauro appeal did arise from the Board's refusal to grant a license, the applicant appealed to this Court, not to the district Court. Thus, although we cited Naifeh, we were not presented with the issue in DiMauro of whether the district court would have had jurisdiction to consider the applicant's appeal.

T19 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, 1992 OK CIV APP 174, 848 P.2d 48 is also expressly disapproved to the extent that it might be construed to support the argument that district courts lack jurisdiction to hear appeals from a decision of the Board denying an application for a medical license.

T20 The plain language of 59 O.S. 513 of the Medical and Surgical Licensure Act limits appeals to this Court from actions by the Board to those appeals from Board decisions that involve "disciplinary actions." Further, in § 495e of the Act,³ the Legislature has made clear that appeals from Board actions to the Supreme Court are not exclusive. Section 494e expressly requires that appeals from Board orders denying re-registration be taken to the district court,. As the Board's denial of Dr. Davuluri's application for a medical license clearly did not involve a disciplinary action, his appeal was governed by 75 O.S. Supp.1992 318. Dr. Davuluri's appeal was, therefore, properly filed "in the district court of the county in which the party seeking review resides," the district Court of Pontotoc County. Title 75 O.S. Supp.1992 318.B.2.

IL

THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE BOARDS DECISION TO DENY DR. DAVULURPS 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, 75 O.S. Supp.1997 250, et seq. governs appeals to the district courts from decisions of administrative agencies. The standard of review by the district courts is set out in 75 O.S.1991 321,⁴ and 322.⁵ Section 321 states that the district court's review of an administrative order "shall be confined to the record ."

122 The Board argues that the trial court violated § 3821 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 75 O.S.1991 310(4). While an administrative agency's decisions are ordinarily entitled to deference, when that decision is based on the agency's expertise, the rule does not apply here. The trial court found, and the record supports, that the Board ignored persuasive evidence of Dr. Davuluri's medical training and experience and qualifications as a physician. The Board has made no effort to explain its failure to consider these factors other than to characterize Dr. Davuluri's more than six years of experience as an OB/GYN as "unremarkable." We hold that the trial court did not err in deciding not to defer to the Boards medical expertise in this matter.

1 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. Davu-luri a temporary license.

125 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, 59 O.S. Supp.1995 493.3.⁶ It is apparent, therefore, that the Board's secretary found nothing inherently disqualifying about Dr. Davuluri's medical education. Further, no evidence that would have supported such a finding was presented at the Board's hearing on Dr. Da-vuluri's application for licensure. We find unconvincing the Board's argument that Dr. Davuluri was obliged to present such evidence, despite the Board secretary's implicit finding that Dr. Davuluri's medial education showed him to be "demonstrably qualified." Had the secretary refused to issue a temporary license because of concerns about Dr. Davuluri's medical education then the Board's argument would be more persuasive but the secretary did not do so.⁷

126 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 ao 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.

T27 We hold that the trial court did not abuse its discretion in holding that Dr. Davu-luri's understatement of the number of times he had taken the FLEX exam did not misrepresent his qualifications. Having admitted that he bad 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.

SUMMERS, C.J., HARGRAVE, V.C.J., LAVENDER, BOUDREAU, and WINCHESTER, JJ.,concur. OPALA, J.-concurring in the court's disposition and dissenting from today's pronouncement. KAUGER, J.-ceoncurs in part, dissents in part.

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

2 . Title 75 0.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.

3 . Title 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.

4 . Title 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. The court, upon request, shall hear oral argument and receive written briefs.

5 . Title 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

(c) made upon unlawful procedure; 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.

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

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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.

added.]

7 . The 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. Davulu-ri'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.