McCormick v. Ark. State Med. Bd.

545 S.W.3d 776
CourtCourt of Appeals of Arkansas
DecidedDecember 13, 2017
DocketNo. CV–17–369
StatusPublished

This text of 545 S.W.3d 776 (McCormick v. Ark. State Med. Bd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCormick v. Ark. State Med. Bd., 545 S.W.3d 776 (Ark. Ct. App. 2017).

Opinion

KENNETH S. HIXSON, Judge

Appellant Denise Oldenberg McCormick, M.D. (McCormick), appeals from a decision of the Baxter County Circuit Court affirming two orders of the Arkansas State Medical Board (Board) that revoked her license to practice medicine. McCormick raises four arguments for reversal. First, she argues that the circuit court erred in concluding that some of the issues were barred by res judicata. McCormick's second and third arguments are interrelated. Under point three, she argues that there was a conflict of interest because counsel for the Board also served in the role of prosecutor in the disciplinary proceedings before the Board. Under point two, she argues that the circuit court erred in finding that she waived this issue by failing to appear at the hearing before the Board. McCormick's remaining argument is that the Board acted beyond the scope of its authority by issuing emergency orders under the Arkansas Medical Practices Act without any findings based on substantive evidence of threat to public health, safety, or welfare. We affirm.

Judicial review of the Board's decision is governed by the Administrative Procedure Act (APA), which provides in part:

The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusion, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency's statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-15-212(h) (Repl. 2014).

On appeal, an appellate court's review is directed, not toward the circuit court's order, but toward the order of the agency, because we have held that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Voltage Vehicles v. Ark. Motor Vehicle Comm'n , 2012 Ark. 386, 424 S.W.3d 281. Our review of administrative decisions, however, is limited in scope. Id. When reviewing such decisions, we uphold them pursuant to the APA if they are supported by substantial evidence and are *778not arbitrary, capricious, or characterized by an abuse of discretion. Id.

Facts and Procedural History

McCormick received her medical license in 1988. Complaints against McCormick and her extensive history with the Board go back to 1991. In 2008, in unrelated proceedings, McCormick was ordered by the Board to provide monthly reports of all scheduled drug prescriptions and refills that she authorized for her patients' use. The present proceedings commenced on May 4, 2010, when the Board entered an Emergency Order of Suspension charging McCormick1 with multiple violations of the Board's regulations and orders, to-wit:

• Violating the July 7, 2008, order of the Board to provide monthly prescription reports;
• Violating Regulation 2.4 by prescribing excessive amounts of controlled substances;
• Violating Regulation 2.6 by prescribing schedule medications for pain without keeping proper records and monitoring of patients;
• Violating Regulation 7 by prescribing schedule 2 amphetamines and methamphetamines for Attention Deficit Disorder without obtaining the required second opinion;
• Violating Regulation 21 by prescribing schedule 3 and 4 controlled substances for obesity and weight loss without following the required guidelines;
• Committing gross negligence and ignorant malpractice in the manner in which she performed facet injections and sciatic nerve injections.

The Emergency Order documented thirty-four patient studies in support of the charges against McCormick. The emergency order concluded with a finding that "the acts of Denise Oldenberg [McCormick], MD, described hereinabove, present a danger to the public health, safetyand welfare, and therefore, the license to practice medicine in the State of Arkansas of Denise Oldenberg [McCormick], M.D., is suspended on an emergency basis pending a disciplinary hearing in this matter or further Orders of this Board. " (Emphasis added.) The disciplinary hearing was set for August 2010.

Prior to the August 2010 disciplinary hearing, McCormick and her attorney appeared before the Board on June 3, 2010. At the conclusion of this meeting, McCormick and the Board entered into a Consent Order pending final resolution of the alleged complaints at the scheduled August 2010 disciplinary hearing. In the Consent Order, the Board agreed to temporarily lift the suspension of McCormick's license and permit her to return to the practice of medicine under certain restrictions, to wit:

• Not prescribe any schedule 2 medications;
• Not accept any new patients;
• Not utilize any sciatic-nerve injections or facet injections;
• Not treat patients for obesity or weight loss, and not prescribe any schedule medication for weight loss;
• Submit to ongoing monitoring of her prescribing practices.

The Consent Order concluded by stating that the above restrictions would continue in full force and effect pending further orders of the Board or the conclusion of the [August 2010] disciplinary hearing.

Shortly thereafter, it came to the Board's attention that on July 10 and 14, *77920102 , McCormick prescribed schedule 2 medications for some of her patients in apparent violation of the June 3, 2010, Consent Order. Thereafter, on September 13, 2010, the Board issued the First Amendment to the May 4, 2010, Emergency Order3 , and on September 28, 2010, the Board issued the Second Amendment to the May 4, 2010 Emergency Order.4 These two amendments alleged that McCormick violated the June 3, 2010, Consent Order by prescribing schedule 2 medications. The First and Second Amendments concluded by again suspending McCormick's medical license pending a disciplinary hearing. The disciplinary hearing for the original May 4, 2010, Emergency Order had been rescheduled for October 8, 2010.

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Related

Lawrence v. North Dakota Workers Compensation Bureau
2000 ND 60 (North Dakota Supreme Court, 2000)
Oldenberg v. Ark. State Med. Bd.
2013 Ark. App. 599 (Court of Appeals of Arkansas, 2013)
Southern Farmers Assn., Inc. v. Wyatt
353 S.W.2d 531 (Supreme Court of Arkansas, 1962)
Voltage Vehicles v. Arkansas Motor Vehicle Commission
2012 Ark. 386 (Supreme Court of Arkansas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
545 S.W.3d 776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormick-v-ark-state-med-bd-arkctapp-2017.