Lacey v. State Board of Registration for the Healing Arts

131 S.W.3d 831, 2004 Mo. App. LEXIS 350
CourtMissouri Court of Appeals
DecidedApril 27, 2004
DocketWD 62574
StatusPublished
Cited by21 cases

This text of 131 S.W.3d 831 (Lacey v. State Board of Registration for the Healing Arts) 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
Lacey v. State Board of Registration for the Healing Arts, 131 S.W.3d 831, 2004 Mo. App. LEXIS 350 (Mo. Ct. App. 2004).

Opinion

JOSEPH M. ELLIS, Chief Judge.

Hugh L. Lacey, M.D., (“Dr. Lacey”) appeals a judgment of the Circuit Court of Cole County upholding an order of the State Board of Registration for the Healing Arts (“Board”) imposing additional discipline on his license to practice medicine in Missouri. After reviewing the record and the law, we reverse, and remand to the circuit court for its entry of a final judgment in favor of Dr. Lacey.

As reflected in the briefs of the parties, the facts of this case, most of which were the subject of joint stipulations presented to the Administrative Hearing Commission (“AHC”) or the Board, are essentially undisputed. Dr. Lacey, who has practiced obstetrics and gynecology in the Joplin area for many years, engaged in inappropriate sexual behavior with two of his female patients between June 1999 and February 2000. Following an intervention by Robert Bondurant and the Missouri Physician’s Health Program (“MPHP”), in early November 2000, Dr. Lacey reported to the Professional Renewal Center (“PRC”) in Lawrence, Kansas, to undergo assessment, with probable treatment and professional rehabilitation to follow.

After receiving appropriate preliminary treatment and rehabilitative therapy from Dr. Richard Irons and other PRC personnel, Dr. Lacey consented to discipline of his medical license. On April 17, 2001, the AHC entered a consent order between Dr. Lacey and the Board that incorporated, among other things, a joint stipulation of facts and an agreed disciplinary order (the “First Disciplinary Order” or “FDO”). The FDO provides for the suspension of Dr. Lacey’s medical license for ninety days, followed by a seven-year probationary period during which Dr. Lacey agreed to continue to submit to care, counseling, and treatment by Dr. Irons. Dr. Lacey further agreed to participate in the MPHP treatment program throughout the duration of the disciplinary period.

The FDO also contains a number of specific provisions governing Dr. Lacey’s medical practice during the seven-year probationary period. Paragraph II.A.2 of the FDO requires Dr. Lacey to comply with “all recommendations for treatment made by Dr. Irons.” Those recommendations, which were made in a January 9, 2001 letter from Dr. Irons to Robert Bon-durant of MPHP, include the following:

Dr. Lacey will limit his practice of medicine and surgery to office and hospital settings and not see patients outside of those venues. He will use a female chaperone for physical examinations of all female patients. The chaperone will be a licensed health care professional. He will continue to examine women only with a chaperone present.

Paragraph II.A.3 of the FDO also requires Dr. Lacey to “follow all recommendations for treatment or aftercare made by” MPHP, as well as to “comply with each and every requirement to remain in the [MPHP] program.” According to the MPHP “Advocacy Agreement” signed by both Mr. Bondurant and Dr. Lacey on December 6, 2000, Dr. Lacey was subject to the following such requirement, which was handwritten in a section headed “Other requirements”:

A nurse/chaperone will be present for all gynecological] patient examinations.

Meanwhile, paragraph II.A.4 of the FDO provides:

*835 During the disciplinary period, Licensee [Dr. Lacey] shall have a female licensed health care professional present during all female patient visits.

Shortly before signing and agreeing to be bound by the terms of the FDO on April 10, 2001, Dr. Lacey sought guidance from his attorney as to whether a nurse chaperone was required only while he was performing physical, obstetrical, or gynecological examinations involving actual physical contact with his female patients, or also during the interview/medical history portion of female patient visits. After checking with James Ertle, who was then serving as counsel for the Board (and, the record shows, actually signed the FDO in that capacity), Dr. Lacey’s attorney advised Dr. Lacey that Mr. Ertle thought it would be appropriate for Dr. Lacey to take the medical history from his female patients with the door to the examining room open and to conduct all physical examinations in the presence of the nurse chaperone. Thereafter, Dr. Lacey began employing this procedure—that is, he utilized a nurse chaperone diming the physical examination portion of each female patient’s office visit, but not during the medical history-taking portion, which takes approximately ten to fifteen minutes to complete. All medical histories were taken by Dr. Lacey in the examining room, with the door deliberately left open so members of Dr. Lacey’s office staff could see into the room. All patients were fully clothed during the medical history-taking portion of their office visits.

About a month later (in May 2001), Dr. Lacey met with one of the Board’s investigators, Michael Bergman, about the terms and conditions of his probation. During this meeting, Dr. Lacey and Mr. Bergman discussed the “Chaperone Requirement” of the FDO, and Dr. Lacey took written notes of their discussion. According to Dr. Lacey’s notes, Mr. Bergman advised him, “This means that you must have a chaperone present for all examinations.” On or about September 26, 2001, 1 Dr. Lacey was advised that the Board had interpreted the FDO to require the presence of a nurse chaperone at all times during female patient visits. After Dr. Lacey learned of this interpretation, he immediately made arrangements for a nurse chaperone to be present during the entirety of all female patient visits.

On February 25, 2002, the Board filed a complaint and notice of hearing against Dr. Lacey for violating the terms of his probation. In particular, the Board alleged that Dr. Lacey’s failure, from May 29, 2001, through September 26, 2001, “to perform all aspects of a female patient visit before a licensed health care professional [e.g., nurse chaperone] is in violation of Paragraph 4 of the [First] Disciplinary Order.” On April 5, 2002, the Board conducted an evidentiary hearing to determine whether Dr. Lacey had “violated any disciplinary terms previously imposed or agreed to pursuant to settlement.” § 620.153. 2 In addition to the facts recited above, the Board’s Chief Investigator, John Heidy, testified that he was unaware of any notification from MPHP administrators that Dr. Lacey had failed to comply with any of the terms of the FDO. Dr. Lacey also testified that he was unaware of any patient complaints regarding inappropriate behavior on his part, either be *836 fore or after September 26, 2001, when he began employing the revised office procedure described above as to his female patients.

On April 23, 2002, the Board issued another order (the “Second Disciplinary Order” or “SDO”) imposing additional license discipline, under which the length of the term of Dr. Lacey’s probation was extended by an additional nine months and twenty days. As provided in §§ 536.100 to 536.140, Dr. Lacey timely filed a petition for judicial review of the Board’s decision in the Circuit Court of Cole County, requesting reversal of the SDO and an award of attorney’s fees and costs.

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Cite This Page — Counsel Stack

Bluebook (online)
131 S.W.3d 831, 2004 Mo. App. LEXIS 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lacey-v-state-board-of-registration-for-the-healing-arts-moctapp-2004.