Ky. Bd. of Med. Licensure v. Strauss

558 S.W.3d 443
CourtMissouri Court of Appeals
DecidedAugust 16, 2018
Docket2017-SC-000260-DG
StatusPublished
Cited by10 cases

This text of 558 S.W.3d 443 (Ky. Bd. of Med. Licensure v. Strauss) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ky. Bd. of Med. Licensure v. Strauss, 558 S.W.3d 443 (Mo. Ct. App. 2018).

Opinion

OPINION OF THE COURT BY JUSTICE HUGHES

*445The Kentucky Board of Medical Licensure (Board) is charged with regulating the practice of medicine in the Commonwealth, including administering the physician disciplinary process. Upon issuance of a complaint against a physician, a hearing officer is appointed to conduct an evidentiary hearing and issue a recommended order with findings of fact, conclusions of law and a proposed disposition. A hearing panel of the Board then considers the matter and determines either to dismiss the complaint or to issue a final order regarding the violation(s) and any appropriate penalty. This administrative process is controlled by relevant provisions of Kentucky Revised Statutes (KRS) Chapter 311 regarding the practice of medicine and KRS Chapter 13B regarding the conduct of administrative hearings generally.

On review of a final order issued against Appellee Jon M. Strauss, M.D., the Court of Appeals concluded that the hearing officer erred by not recommending a specific penalty, and that the Board's hearing panel also erred by not independently reviewing the entire evidentiary record before rendering a final order. Having reviewed the relevant statutes, we conclude that the Court of Appeals misconstrued the statutes with respect to both issues and, accordingly, we reverse and remand.

RELEVANT FACTS

Jon M. Strauss, M.D. (Strauss) is a family medicine practitioner who, at times relevant to this matter, maintained offices in Berea, Richmond and Mt. Vernon, Kentucky. Disciplinary action against him began in 2010 with a grievance regarding sexual contact with, and ensuing threats against, Patient A. Three other grievances were subsequently filed, one of which also involved sexual contact with another patient identified as Patient U. The matter resulted in an eleven-day hearing involving 130 documents and 60 exhibits and ultimately the issuance of a five-year probation order with conditions. We begin with a brief overview of the grievances and the ensuing disciplinary process to give context to the two discrete statutory issues raised by the appeal.

Patient A filed the first grievance with the Board alleging Strauss had sexual contact with her while she was a patient, including an unsuccessful attempt to have intercourse, and that he threatened her with "trouble" and a mental institution if she left his care. After investigation, a Board inquiry panel filed a formal complaint against Strauss. The second grievance was raised by a father who complained of the medications Strauss was prescribing for his daughter, Patient B, a drug addict. When the investigation revealed significant concerns about Strauss's patterns of prescribing involving Patient B and eight other patients and he declined remedial education and temporary monitoring, the inquiry panel filed an Amended Complaint. While preparing for the matter, the Board learned that Strauss had treated and prescribed medications for his wife and other family members, resulting in a Second Amended Complaint. The third grievance, from a former co-worker, alleged that Strauss subjected patients to unnecessary office visits and hospitalizations and overused psychological diagnoses. Following review by a Board consultant, which raised concerns, this resulted *446in the Third Amended Complaint. Finally, the administrator of the St. Joseph Berea Hospital filed a grievance alleging Strauss had engaged in sexual relations with three patients while they were hospitalized (one was Patient A, one was deceased and the third was identified as Patient U). Patient U confirmed the sexual contact, her complaints to hospital nurses, sexual intercourse in both Strauss's office and the hospital, overmedication given to her prior to sexual acts and threats by Strauss that intimidated her when she tried to leave his practice. This last grievance resulted in the final Fourth Amended Complaint.

The aforementioned complaints were issued by Inquiry Panel B of the Board. The Board, created pursuant to KRS 311.530, consists of the deans from the University of Kentucky and University of Louisville medical schools, the dean of the Pikeville College of Osteopathy, the Commissioner of Public Health and eleven members appointed by the Governor, including seven licensed medical doctors and one licensed osteopathic physician, as well as three citizens. The Board divides into two inquiry/hearing panels for consideration of discipline, with one panel investigating and deciding whether a complaint should issue and the other panel then adjudicating any complaint and imposing discipline where appropriate. The panels alternate these responsibilities. In this case, Inquiry Panel B issued the Complaints against Strauss and then Hearing Panel A was charged with acting on those Complaints. The hearing panel is authorized to appoint a hearing officer, KRS 311.565(1)(g) and KRS 311.591(5), and it did so in Strauss's case.

The hearing officer heard testimony and admitted exhibits over eleven days in 2009-2010 and issued a detailed 47-page document entitled "Findings of Fact, Conclusions of Law, and Recommended Order" (Recommended Order). After detailing the evidence supporting his factual findings, the hearing officer concluded that the Board had met its burden to prove violations of KRS Chapter 311 by a preponderance of the evidence. KRS 13B.090(7). The seven violations were: (1-2) sexual contact with Patients A and U in violation of KRS 311.595(5) ; (3-4) "dishonorable, unethical or unprofessional conduct" in his treatment of Patients A and U in violation of KRS 311.597(4) ; (5) inappropriate prescription of controlled substances to Patient U in exchange for sexual contact with her in violation of KRS 311.595(9) as illustrated by KRS 311.597(4) ; (6) inaccurate, misleading and internally inconsistent medical records in violation of KRS 311.595(9) ; and (7) failure to provide the Board with complete medical records involving Patient U and attempts to obstruct the investigation in violation of KRS 311.595(12) and KRS 311.590(2). The hearing officer thus found statutory violations as alleged in the Fourth Amended Complaint1 and recommended the Board "take any appropriate action against [Strauss's] license for those violations." This Recommended Order was issued August 18, 2010.

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Bluebook (online)
558 S.W.3d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ky-bd-of-med-licensure-v-strauss-moctapp-2018.