$uprrutt Conti of ERIC C. NORSWORTHY, MD 2008-SC-000918-I PATE 10- 1-09 ti//4 CTCOARt4ib•C' APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2008-CA-001717-I JEFFERSON CIRCUIT COURT NO. 08-CI-008166
KENTUCKY BOARD OF MEDICAL LICENSURE (KBML) APPELLEE
OPINION AND ORDER DENYING INTERLOCUTORY RELIEF
Appellant, Eric C. Norsworthy, pursuant to CR 65.09, moves this
Court to vacate the Order entered by the Court of Appeals staying the
injunctive relief granted him by the Jefferson Circuit Court, pursuant to
CR 65.04. Having reviewed the motions of the parties and the record of
the case, this Court now denies the motion for the relief requested for
failure to show extraordinary cause.
BACKGROUND
On May 7, 2008, a hearing officer conducted an administrative
hearing on the complaint issued by the Kentucky Board of Medical
Licensure (KBML) against Appellant. The complaint was filed alleging
Appellant committed sexual misconduct against a female patient by
grabbing her breast when she was awaiting treatment for bronchitis on
February 20, 2007. After considering all the evidence, including his nineteen (19) year disciplinary history,' the officer recommended that
Appellant's license be revoked as a result of his continued misconduct.
On July 17, 2008, Hearing Panel B of the KMBL took up the case
for final action. Upon review, the Panel accepted all of the hearing
officer's findings of fact and conclusions of law, but chose to modify the
punishment. In lieu of a complete revocation, as recommended by the
hearing officer, the Panel recommended a restriction limiting Appellant to
practice on male patients only. To that end, the Board noted: ti The only sanction which will adequately protect the public is one which conclusively, ensures that this licensee may never be permitted to enter into a physician-patient relationship with or to perform any medical procedure - evaluation, diagnosis, treatment - on any female patient during the remainder of his medical practice. If this can be
In 1989 and 1990, a sixteen (16) year old female patient and her mother asserted that Appellant lifted the patient's breast out of her bra and fondled her breast in a way no other doctor had done. During this same investigation, two (2) other female patients asserted Appellant had sexual intercourse with them after giving them some medication. Appellant received a six (6) month suspension of his license followed by four and one-half (4 1/2) years probation. In February 1993, a twenty-one (21) year old female patient alleged that Appellant, in addition to other sexual misconduct, cupped and massaged her breast while listening to her heartbeat. Appellant's probation was extended another five (5) years after this incident. In February 2000, a local physician filed a grievance against Appellant, claiming Appellant conducted inappropriate breast examinations and unnecessary pelvic examinations on ten (10) female patients. Several of those patients claimed that Appellant fondled their breasts. These complaints were reviewed by board consultants, who did not find sufficient information to prove that Appellant was actively fondling or sexually touching patients. The KBML held that the evidence may not establish inappropriate touching, but did question the medical necessity of various examinations conducted by Appellant on female patients. Accordingly, an Agreed Order was issued on May 16, 2002, subjecting Appellant to numerous restrictions and conditions, pertaining to female patients, for a period of five (5) years.
2 accomplished by a permanent restriction upon his medical license, then revocation may be avoided and he may be permitted to practice under this permanent restriction.
On July 24, 2008, the KBML issued the indefinite restriction on
Appellant's license to practice medicine, limiting his practice to male
patients only. The KBML took this action in view of Appellant's long
history of improper conduct starting in 1989, over which time period, it
received sixteen (16) complaints from female patients charging Appellant
with a litany of troubling conduct, including sexual touching and sexual
intercourse. Despite the Board's decision to allow Appellant to continue
practicing medicine (when the recommendation given was to revoke his
license), Appellant appealed the restriction of his license in Jefferson
Circuit Court and also filed a motion for injunctive relief pending the
result of his appeal.
On August 29, 2008, after only a ten (10) minute hearing at which
Appellant called no witnesses and produced minimal evidence, the
Jefferson Circuit Court granted Appellant's temporary injunction against
the restriction under CR 65.04 and the three-part test from Maupin v.
Stansbury, 575 S.W.2d 695 (Ky. App. 1978). The circuit court reasoned
that restricting Appellant's ability to treat women would equate to an
irreparable injury under Maupin because it was alleged that up to
seventy (70) percent of his patients were women. Furthermore, the court
3 held that the restriction limited his ability to earn money, his ability to
acquire new patients, as well as his ability to retain old patients.
The circuit court likewise found the existence of a substantial
question under Maupin, which it deemed warranted the grant of the
injunction. At issue were allegations by Appellant against the
complaining patient of alleged drug use and an apparent improper
attempt by Appellant to disclose the complainant's private medical
records. The court reasoned that because there were questions about
the drug use of the complainant/patient, the confidentiality of her
medical records should not take precedence over a litigant's rights to
discover exculpatory evidence. The court determined that because the
complainant allegedly used prescription drugs, her credibility (or lack of
it) gave rise to a substantial question of law as it related to the issuance
of a temporary injunction and thus, Appellant might ultimately prevail
on the merits.
Finally, in addressing the equities prong of Maupin, the circuit
court held that the equities lay in favor of Appellant. The court reasoned
that, even though protecting the public from physicians like Appellant is
important, such considerations were insufficient to overcome the equities
in his favor, which the court found to include: 1) the fact that no other
complaints had been filed after the one in question (although it should be
4 noted that an additional grievance was filed on September 5, 2008); 2 2)
Appellant presented a petition of support with several hundred
signatures; 3) a large support group of women in yellow t-shirts appeared
in court with him; 3 4) the County he practices in is a Health
Professionals Shortage Area (HPSA); and 5) Appellant works for the Ohio
County Jail and is the medical director for three (3) nursing homes in
Ohio County. The circuit court held that the charges against Appellant
were serious, but that the "status quo" of the past eighteen (18) months
rendered the injunction appropriate here. 4
Subsequent to the trial court's ruling, the KBML filed an appeal in
the Court of Appeals, seeking a stay of the temporary injunction issued
by the circuit court. The Court of Appeals held that the trial court
Free access — add to your briefcase to read the full text and ask questions with AI
$uprrutt Conti of ERIC C. NORSWORTHY, MD 2008-SC-000918-I PATE 10- 1-09 ti//4 CTCOARt4ib•C' APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2008-CA-001717-I JEFFERSON CIRCUIT COURT NO. 08-CI-008166
KENTUCKY BOARD OF MEDICAL LICENSURE (KBML) APPELLEE
OPINION AND ORDER DENYING INTERLOCUTORY RELIEF
Appellant, Eric C. Norsworthy, pursuant to CR 65.09, moves this
Court to vacate the Order entered by the Court of Appeals staying the
injunctive relief granted him by the Jefferson Circuit Court, pursuant to
CR 65.04. Having reviewed the motions of the parties and the record of
the case, this Court now denies the motion for the relief requested for
failure to show extraordinary cause.
BACKGROUND
On May 7, 2008, a hearing officer conducted an administrative
hearing on the complaint issued by the Kentucky Board of Medical
Licensure (KBML) against Appellant. The complaint was filed alleging
Appellant committed sexual misconduct against a female patient by
grabbing her breast when she was awaiting treatment for bronchitis on
February 20, 2007. After considering all the evidence, including his nineteen (19) year disciplinary history,' the officer recommended that
Appellant's license be revoked as a result of his continued misconduct.
On July 17, 2008, Hearing Panel B of the KMBL took up the case
for final action. Upon review, the Panel accepted all of the hearing
officer's findings of fact and conclusions of law, but chose to modify the
punishment. In lieu of a complete revocation, as recommended by the
hearing officer, the Panel recommended a restriction limiting Appellant to
practice on male patients only. To that end, the Board noted: ti The only sanction which will adequately protect the public is one which conclusively, ensures that this licensee may never be permitted to enter into a physician-patient relationship with or to perform any medical procedure - evaluation, diagnosis, treatment - on any female patient during the remainder of his medical practice. If this can be
In 1989 and 1990, a sixteen (16) year old female patient and her mother asserted that Appellant lifted the patient's breast out of her bra and fondled her breast in a way no other doctor had done. During this same investigation, two (2) other female patients asserted Appellant had sexual intercourse with them after giving them some medication. Appellant received a six (6) month suspension of his license followed by four and one-half (4 1/2) years probation. In February 1993, a twenty-one (21) year old female patient alleged that Appellant, in addition to other sexual misconduct, cupped and massaged her breast while listening to her heartbeat. Appellant's probation was extended another five (5) years after this incident. In February 2000, a local physician filed a grievance against Appellant, claiming Appellant conducted inappropriate breast examinations and unnecessary pelvic examinations on ten (10) female patients. Several of those patients claimed that Appellant fondled their breasts. These complaints were reviewed by board consultants, who did not find sufficient information to prove that Appellant was actively fondling or sexually touching patients. The KBML held that the evidence may not establish inappropriate touching, but did question the medical necessity of various examinations conducted by Appellant on female patients. Accordingly, an Agreed Order was issued on May 16, 2002, subjecting Appellant to numerous restrictions and conditions, pertaining to female patients, for a period of five (5) years.
2 accomplished by a permanent restriction upon his medical license, then revocation may be avoided and he may be permitted to practice under this permanent restriction.
On July 24, 2008, the KBML issued the indefinite restriction on
Appellant's license to practice medicine, limiting his practice to male
patients only. The KBML took this action in view of Appellant's long
history of improper conduct starting in 1989, over which time period, it
received sixteen (16) complaints from female patients charging Appellant
with a litany of troubling conduct, including sexual touching and sexual
intercourse. Despite the Board's decision to allow Appellant to continue
practicing medicine (when the recommendation given was to revoke his
license), Appellant appealed the restriction of his license in Jefferson
Circuit Court and also filed a motion for injunctive relief pending the
result of his appeal.
On August 29, 2008, after only a ten (10) minute hearing at which
Appellant called no witnesses and produced minimal evidence, the
Jefferson Circuit Court granted Appellant's temporary injunction against
the restriction under CR 65.04 and the three-part test from Maupin v.
Stansbury, 575 S.W.2d 695 (Ky. App. 1978). The circuit court reasoned
that restricting Appellant's ability to treat women would equate to an
irreparable injury under Maupin because it was alleged that up to
seventy (70) percent of his patients were women. Furthermore, the court
3 held that the restriction limited his ability to earn money, his ability to
acquire new patients, as well as his ability to retain old patients.
The circuit court likewise found the existence of a substantial
question under Maupin, which it deemed warranted the grant of the
injunction. At issue were allegations by Appellant against the
complaining patient of alleged drug use and an apparent improper
attempt by Appellant to disclose the complainant's private medical
records. The court reasoned that because there were questions about
the drug use of the complainant/patient, the confidentiality of her
medical records should not take precedence over a litigant's rights to
discover exculpatory evidence. The court determined that because the
complainant allegedly used prescription drugs, her credibility (or lack of
it) gave rise to a substantial question of law as it related to the issuance
of a temporary injunction and thus, Appellant might ultimately prevail
on the merits.
Finally, in addressing the equities prong of Maupin, the circuit
court held that the equities lay in favor of Appellant. The court reasoned
that, even though protecting the public from physicians like Appellant is
important, such considerations were insufficient to overcome the equities
in his favor, which the court found to include: 1) the fact that no other
complaints had been filed after the one in question (although it should be
4 noted that an additional grievance was filed on September 5, 2008); 2 2)
Appellant presented a petition of support with several hundred
signatures; 3) a large support group of women in yellow t-shirts appeared
in court with him; 3 4) the County he practices in is a Health
Professionals Shortage Area (HPSA); and 5) Appellant works for the Ohio
County Jail and is the medical director for three (3) nursing homes in
Ohio County. The circuit court held that the charges against Appellant
were serious, but that the "status quo" of the past eighteen (18) months
rendered the injunction appropriate here. 4
Subsequent to the trial court's ruling, the KBML filed an appeal in
the Court of Appeals, seeking a stay of the temporary injunction issued
by the circuit court. The Court of Appeals held that the trial court
abused its discretion when it determined, pursuant to CR 65.04, that
immediate and irreparable injuries were present in this case and ordered
that the temporary injunction order be stayed. Appellant now seeks
additional review by this court.
Analysis
2 This grievance was frOm a former co-worker who stated, "I left because I could no longer look into the eyes of the women he had sexually molested and be a part of that perverted office." 3 The trial court reasoned that because a large group of supporters, mainly women, had "come a long way" to support Appellant, he was entitled to the weight of equities in his favor. 4 We note that the trial court's opinion included some factual inconsistencies, including referencing Appellant as Dr. Ebert, and referencing the action as a motion for a stay of an emergency order of suspension.
5 Appellant argues that the Court of Appeals' stay of the trial court's
grant of temporary injunction was improper and requests relief from this
Court pursuant to CR 65.09. "Under CR 65.09 our review is limited to
those cases which demonstrate 'extraordinary cause,' and we have noted
that 'abuse of discretion by the courts below can supply such cause."'
Price v. Paintsville Tourism Com'n, 261 S.W.3d 482, 483 (Ky. 2008)
(quoting National Collegiate Athletic Association v. Lasege, 53 S.W.3d 77,
84 (Ky. 2001)) (emphasis added). Appellant's motion, however, does not
meet this standard.
CR 65 governs injunctive relief in Kentucky. It states that a
temporary injunction may be granted during the pendency of an action if
it is clearly shown that the Appellant's rights are being, or will be,
violated and the Appellant will suffer immediate and irreparable harm.
See id.
This rule has been construed as requiring the trial court to deny injunctive relief unless it finds (1) that the Appellant's position presents "a substantial question" on the underlying merits of the case, i.e. that there is a substantial possibility that the Appellant will ultimately prevail; (2) that the Appellant's remedy will be irreparably impaired absent the extraordinary relief; and (3) that an injunction will not be inequitable, i.e. will not unduly harm other parties or disserve the public. (internal citations omitted).
Price, 261 S.W.3d at 484 (emphasis added); see also Sturgeon Mining Co.
v. Whymore Coal Co., Inc., 892 S.W.2d 591, 592 (Ky. 1995) (Rule 65 "requires that for a temporary injunction to be granted, it must be
`clearly shown . . . that the movant . . . will suffer immediate and
irreparable injury, loss, or damage pending a final judgment in the
action."').
The trial court held that Appellant satisfied these elements;
however, the Court of Appeals held, in its brief opinion, that the
irreparable injury found by the trial court did not rise to the level needed
to grant the injunction and that the trial court abused its discretion
when it decided otherwise.
Having reviewed the complained of irreparable harm, the
standards enunciated in Maupin, and having considered the Court of
Appeals: terse determination, we agree with the Court of Appeals and find
the stay of the temporary injunction proper for reasons that the trial
court abused its discretion. However, we find it necessary to fully
analyze this matter, pursuant to all the standards set forth in Maupin.
In the present matter, Appellant claims a temporary injunction is
necessary and that - because he is a solo practitioner and the KBML
restriction will allegedly take away seventy (70) percent of his clients - he
will not be able to pay the salaries of his staff or all the costs of
maintaining his business, amounting to irreparable harm. 5 In order to
5 We note that Appellant is a solo practitioner of his own volition. He previously employed a doctor that was facing similar charges to Appellant, and that doctor was forced to resign. Moreover, another doctor decided he could no longer work in Appellant's office because, "he could no longer look into the eyes of the women he [Appellant] had sexually molested." That
7 obtain a preliminary injunction, the harm that would result in the
absence of the injunction must be irreparable, not merely substantial.
See Sampson, 415 U.S. at 61, 90 (1974). 6 Further, "mere injuries,
however substantial, in terms of money, time and energy necessarily
expended in the absence of a stay, are not enough." Sampson, 415 U.S.
61, 90 (1974) (quoting Virginia Petroleum Jobbers Ass'n v. Federal
Power, 259 F.2d 921, 925 (D.C. Cir. 1958)). See Zirkle v. District of
Columbia, 830 A.2d 150, 1256-1257 (D.C. 2003) ("For it is well
established that economic and reputational injuries are generally not
irreparable.").
Appellant's claim that the Board's restriction will take away
seventy (70) percent of his clients and force him to close his business is
lacking and without proof. "An injunction will not be granted on the
ground merely of an anticipated danger or an apprehension of it, but
there must be a reasonable probability that injury will be done if no
injunction is granted." Hamlin v. Durham, 235 Ky. 842, 32 S.W.2d 413,
414 (1930). The current restriction allows Appellant to continue to
practice medicine even though he has been the subject of sixteen (16)
complaints of sexual misconduct over the past nineteen (19) years and
doctor subsequently filed his own grievance against Appellant, which is currently pending. 6 There is no evidence to support Appellant's claim that he will lose seventy (70) percent of his business. Further, the restriction allows him to continue to practice, where he has the opportunity to gain new patients, as long as they are male. While the inconvenience to Appellant may be substantial, it cannot be characterized as irreparable under these circumstances.
8 the hearing officer actually recommended complete revocation of his
license.
Nor do we find that Appellant has established the requisite
"substantial possibility" that he will prevail on the merits. To support a
temporary injunction, one must show that a substantial question exists
that tends to create a "substantial possibility" that the Appellant will
ultimately prevail on the merits. See Price, 261 S.W.3d at 484 (emphasis
added).
The hearing officer is charged with the duty of judging the
credibility of witnesses and weighing the evidence. See Kentucky State
Racing Comm'n v. Fuller, 481 S.W.2d 298, 307-308 (Ky. 1972); see also
Wheatley v. Shields, 292 F. Supp. 608 (D.C. 1968). KRS 13B.150(2)
states:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact . .. unless it finds the agency's final order is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
9 (f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.
Therefore, the trial court could not find that there was a clear
abuse of discretion when the hearing officer found that the grievant was
a credible witness and that her statements were credible. Thus, the trial
court abused its discretion when it held that the possible drug use and
psychological history of the complainant created a substantial question
(as to her credibility) supporting the trial court's issuance of the
temporary injunction.
Appellant's sole assertion was that complainant's patient chart
listed medication that is used primarily for treating bipolar or
schizophrenia disorders. But, Appellant cannot assert that complainant
has ever been treated for either of these conditions. Furthermore, as
conceded by Appellant, complainant's chart was not created until after
the complaint was filed and Appellant had received notice of it.
Nonetheless, the mere fact that a complainant may, or may not, have
been using prescription medication at the time of the incident does not
amount to a "substantial possibility" of Appellant winning on the merits,
as required under Kentucky law. The hearing officer weighed this
evidence and reached the conclusions it deemed appropriate, as was his
10 authority to do so. Corn. Transp. Cabinet Dept. of Vehicle Registration v.
Cornell, 796 S.W.2d 591, 594 (Ky. App. 1990).
Finally, when balancing the equities of the case, it was an abuse of
discretion for the trial court to rule that the equities favored Appellant.
Appellant's actions during the course of the proceedings caused him to
be indicted on criminal charges, 7 because he began accessing
complainant's KASPER records after the complaint was filed. 8 Appellant
also has a well developed pattern of behavior here that is documented by
the numerous complaints filled against him.
Accordingly, we hold the trial court abused its discretion when it
determined that the equities in this case favor Appellant; relying on facts
such as: (1) no other complaints have been filed since the complaint in
question; 9 (2) a large group of women in yellow shirts had showed up to
support Appellant; and (3) that the large group had to travel a long way
to support Appellant. We do not see how these factors outweigh the fact
7 Unclean hands are an absolute bar to equitable relief, including injunctive relief. Time Finance Co. v. Varney, 253 S.W.2d 233 (Ky. 1952). 8 KASPER stands for, Kentucky All Schedule Prescription Electronic Reporting. Physicians may access KASPER reports only for the "purpose of providing medical or pharmaceutical treatment for a bona fide current patient." KRS 218A.202(6)(e). Further, "Obtaining information under this section not relating to a bona fide specific investigation, shall be a Class D felony for the first offense and a Class C felony for each subsequent offense." KRS 218A.202. Appellant attempted to access complainant's KASPER records after she had terminated her doctor-patient relationship with Appellant. Therefore, pursuant to these repeated violations, Appellant was indicted on nine (9) felony charges regarding his improper accessing of these KASPER records.
9 We note again that there has been another complaint filed, this one by an employee of Appellant who stated "he could no longer look into the eyes of the women he [Appellant] had sexually molested."
11 that Appellant has had numerous valid complaints filed against him,
over a long period of time, that show a pattern of sexual misconduct.
Appellant has not established that there is a substantial possibility
that he will prevail on the merits, nor has he satisfied the irreparable
harm requirement, or shown that the equities in the case favor him.
Women patients are entitled to a doctor who practices good medicine.
They should not be at the mercy of a physician who has repeatedly
committed sexual misconduct.
Therefore, Appellant has failed to demonstrate the "extraordinary
cause" necessary for relief from the Court of Appeals' ruling. Because we
agree with the determination of the Court of Appeals and find that the
trial court abused its discretion, Appellant's motion for relief under CR
65.09 is hereby denied.
All sitting. All concur.
ENTERED: May 21, 2009.