Kahn v. Arizona Medical Board

300 P.3d 552, 232 Ariz. 17, 657 Ariz. Adv. Rep. 13, 2013 WL 1209616, 2013 Ariz. App. LEXIS 43
CourtCourt of Appeals of Arizona
DecidedMarch 26, 2013
DocketNo. 1 CA-CV 12-0267
StatusPublished

This text of 300 P.3d 552 (Kahn v. Arizona Medical Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kahn v. Arizona Medical Board, 300 P.3d 552, 232 Ariz. 17, 657 Ariz. Adv. Rep. 13, 2013 WL 1209616, 2013 Ariz. App. LEXIS 43 (Ark. Ct. App. 2013).

Opinion

OPINION

DOWNIE, Judge.

¶ 1 Shakeel Aziz Kahn, M.D., appeals the superior court’s judgment upholding a letter of reprimand issued to him by the Arizona Medical Board (“Board”). We reject Kahn’s contention that a vacant Board position precluded the Board from taking disciplinary action against him. We further hold that Arizona Revised Statutes (“AR.S.”) section 12-2604(A), which dictates qualifications for expert witnesses in medical malpractice actions, is inapplicable to Board disciplinary proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 Kahn is a member of the medical staff at Valley View Medical Center in Fort Mohave, Arizona. By letter dated August 11, 2009, the hospital’s Chief of Staff advised the Board that Kahn had been summarily suspended from the medical staff on June 26, 2009, “for failure to see his hospital patients on a daily basis, in violation of hospital policy,” but was reinstated three days later. The letter stated that Kahn’s actions “may have constituted unprofessional conduct pursuant to ARS 32-1401(25)(q).”

¶ 3 The Board opened an investigation and advised Kahn it would be reviewing medical charts of three of his patients. The Board’s medical consultant, Kathleen Coffer, M.D., submitted a report opining that Kahn had complied with the standard of care as to two of the patients but had fallen below the standard of care in treating L.M., causing her harm. Kahn disputed Coffer’s conclusions regarding L.M.

¶4 The Board filed a formal complaint against Kahn, alleging that he deviated from the standard of care in treating L.M., which constituted unprofessional conduct pursuant to AR.S. § 32 — 1401(27)(q) (“Unprofessional conduct” includes “[a]ny conduct or practice that is or might be harmful or dangerous to the health of the patient or the public”).1 An evidentiary hearing was held before an Administrative Law Judge (“ALJ”) at which Kahn, Coffer, L.M., and a Board investigator testified.

¶ 5 The ALJ issued proposed findings of fact, conclusions of law, and a recommended order. He concluded Kahn had deviated from the standard of care in treating L.M. and recommended that the Board issue a letter of reprimand.

¶ 6 At its August 11, 2010 meeting, the Board adopted the ALJ’s recommended decision, concluding Kahn engaged in unprofessional conduct and voting unanimously to issue a letter of reprimand.2 Kahn filed a complaint for judicial review in the superior court. See A.R.S. §§ 12-904(A), 32-1453. After briefing and oral argument, the superi- or court affirmed the Board’s decision. Kahn filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

1. The Board’s Composition

¶ 7 Kahn contends the Board was improperly constituted when it voted to repri[19]*19mand him, rendering its action void. We consider this legal issue de novo.

¶ 8 Section 32-1402(A) sets the Board’s membership at “twelve members, four of whom shall represent the public and eight of whom shall be actively practicing medicine. One of the four public members shall be a licensed practical nurse or a professional nurse ... with at least five years’ experience.” The “presence of seven board members at a meeting constitutes a quorum. A majority vote of the quorum is necessary for the board to take any action.” AR.S. § 32-1404(B).

¶ 9 The nurse-member position was vacant when the Board voted to reprimand Kahn. The statutes, though, do not require the presence of any specific member for the Board to conduct business. Eleven Board members attended the August 11, 2010 meeting, and they voted unanimously to reprimand Kahn.

¶ 10 We have previously held that an administrative board could transact business, despite the absence of its statutorily mandated lay member, as long as a quorum was present. See Schmitz v. Ariz. State Bd. of Dental Exam’rs, 141 Ariz. 37, 42-43, 684 P.2d 918, 923-24 (App.1984) (board of dental examiners’ investigative committee could act without participation of lay member because Arizona law permits a board to conduct business if a majority of members is present); see also Garlington v. Smith, 63 Ariz. 460, 465, 163 P.2d 685, 688 (1945) (upholding board of medical examiners’ action, despite absence of one board member at meeting where license was revoked; “Under the law there are five members of this board. A majority could legally revoke the license of the plaintiff.”).

¶ 11 Notwithstanding this Arizona precedent, Kahn relies on Vuagniaux v. Dep’t of Prof'l Regulation, 208 Ill.2d 173, 280 Ill.Dec. 635, 802 N.E.2d 1156 (2003), which involved disciplinary proceedings against a chiropractor. Id. at 1163. An administrative law judge granted the chiropractor’s motion to preclude the medical board’s only chiropractic member — Cook—from participating in his ease, whereupon the board named Pope, a different chiropractor, to serve in Cook’s place. Id. at 1162. The Illinois Supreme Court ruled the board was not properly constituted because it included Pope, whom the board had no authority to appoint; instead, Illinois law dictated that the governor, with advice and consent of the senate, was to appoint all members of the board. Id. at 1164.

¶ 12 The ease at bar does not involve a participant in Board proceedings whose service was unauthorized by law. Vuagniaux does not stand for the proposition that a membership vacancy deprives an administrative board of jurisdiction to pursue statutorily mandated regulatory functions.

¶ 13 Kahn’s reliance on New Process Steel, L.P. v. National Labor Relations Board, 560 U.S. 674, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010), is also unavailing. In that ease, the National Labor Relations Board (“NLRB”) had four members and one vacancy, but anticipated two additional vacancies in the near future. Id. at 2638. The National Labor Relations Act (“NLRA”) required three NLRB members for a quorum, but permitted two members of any delegee group to constitute a quorum of the group. Id. The four existing members “decided to take action in an effort to preserve the Board’s authority to function.” Id. They named three of the sitting members “a three-member group,” delegating “all of the Board’s powers” to that group. Id. After the term of one of those members expired, the two remaining members acted as a quorum of the delegee group, deciding almost 600 cases on behalf of the NLRB. Id. at 2639.

¶ 14 The United States Supreme Court held that the NLRA required a delegee group to maintain a membership of three persons in order to exercise authority delegated by the NLRB.

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Bluebook (online)
300 P.3d 552, 232 Ariz. 17, 657 Ariz. Adv. Rep. 13, 2013 WL 1209616, 2013 Ariz. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kahn-v-arizona-medical-board-arizctapp-2013.