Firas Rabi, M.D. v. Iowa Board of Medicine ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1730
Filed September 27, 2017
FIRAS RABI, M.D.,
Petitioner-Appellant,
vs.
IOWA BOARD OF MEDICINE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lawrence P.
McLellan, Judge.
Firas Rabi appeals a district court order affirming an administrative
decision by the Iowa Board of Medicine. AFFIRMED.
Michael M. Sellers of Sellers, Galenbeck & Nelson, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Julie J. Bussanmas, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.
Firas Rabi, M.D., appeals a district court order denying him relief in
relation to his application for judicial review of a disciplinary decision rendered by
the Iowa Board of Medicine (Board). Rabi contends (1) the Board exceeded its
statutory authority in disciplining him under its administrative sexual-harassment
rule, (2) the evidence does not support the Board’s findings that he violated the
sexual-harassment rule, and (3) the Board exceeded its statutory authority in
disciplining him for unprofessional or unethical conduct. We affirm.
I. Background Facts and Proceedings
In July 2006, Rabi began a three-year fellowship in the pediatric intensive
care unit of the University of Iowa Hospitals and Clinics. After he completed his
fellowship, he worked at the hospital as a general pediatric hospitalist, a contract
position, with intentions of returning to the pediatric intensive care unit. When
Rabi applied for a permanent position in the unit in 2010, a unit nurse made
allegations of inappropriate behavior against him and enlisted other staff
members to forward similar allegations based on their exchanges with him. The
hospital investigated the allegations and, on June 18, 2010, concluded “[t]he
evidence produced during the investigation [did] provide a reasonable basis to
believe the Policy on Sexual Harassment ha[d] been violated.” Rabi was placed
on administrative leave and advised his contract with the hospital would not be
renewed and would terminate effective September 30, 2010. Rabi reported the
situation to the Board in July 2010.
Based on Rabi’s self-report, the Board initiated its own investigation into
the matter and, on March 6, 2014, filed a statement of charges against Rabi,
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charging him with (1) sexual harassment pursuant to Iowa Code section
148.6(2)(i) (2014) and Iowa Administrative Code rules 653-13.7(6) and -23.1(10);
(2) unethical or unprofessional conduct pursuant to Iowa Code sections
147.55(3) and 272C.10(3) and Iowa Administrative Code rule 653-23.1(4); and
(3) practice harmful or detrimental to the public pursuant to Iowa Code sections
147.55(3) and 272C.10(3) and Iowa Administrative Code rule 653-23.1(3).
In February 2016, the Board concluded Rabi violated the rules prohibiting
sexual harassment and unprofessional conduct but not the rule prohibiting
practices harmful to the public. The Board, among other things, suspended
Rabi’s license to practice medicine indefinitely and imposed a civil penalty of
$10,000. Rabi filed a petition for judicial review pursuant to Iowa Code section
17A.19 in the district court arguing, among other things, the Board exceeded its
authority in disciplining him. In a thorough ruling, the district court affirmed the
Board’s decision in September 2016. Rabi appealed.
II. Standard of Review
Iowa Code chapter 17A governs judicial review of the actions of the
Board. See Iowa Code § 148.7(9). “On appeal, our sole task is to correct legal
error, if any, affecting the [Board’s] decision.” Boswell v. Iowa Bd. of Veterinary
Med., 477 N.W.2d 366, 367 (Iowa 1991).
III. Analysis
Rabi first argues Iowa Code section 272C.1(4) limits “licensee discipline”
to situations in which the discipline would protect patients and, as such, Iowa
Code section 17A.23(3) limits the Board’s rulemaking authority to that which
would protect patients, not coworkers in an employment setting. According to
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Rabi, because Iowa Administrative Code rule 653-13.7(6), which prohibits a
physician from engaging in sexual harassment, protects individuals other than
patients, the rule “is outside of the [Board’s] authority.” He argues because the
Board concluded he did not engage in conduct harmful or detrimental to the
public, i.e. patients, the Board had no authority to discipline him under its rules
relating to sexual harassment. In sum, he argues “[t]he nurses and co-workers
who are considered to be [his] victims . . . do not fall within the [Board’s] sphere
of protection.”
Rabi is correct that (1) “[a]n agency shall have only that authority or
discretion delegated to or conferred upon [it] by law and shall not expand or
enlarge its authority or discretion beyond the powers delegated to or conferred
upon [it]” and (2) “[u]nless otherwise specifically provided in statute, a grant of
rulemaking authority shall be construed narrowly.” Iowa Code § 17A.23(3).
However, the Board’s disciplinary and rulemaking authority is not limited to that
which is authorized in section 272C.1(4), as Rabi implies. Rather, the Board’s
disciplinary authority and promulgation powers are provided for in a number of
statutes.
Iowa Code section 272C.1(4) defines “licensee discipline” as “any
sanction a licensing board may impose upon its licensees for conduct which
threatens or denies citizens of this state a high standard of professional or
occupational care.” In addition, the Board has been authorized by the legislature
to “[d]efine by rule acts or omissions that are grounds for revocation or
suspension of a license under section . . . 148.6.” Id. § 272C.4(6). Section
148.6(1) allows a licensing board “to discipline a licensee for any of the grounds
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set forth in section 147.55, chapter 272C,” or section 148.6. Specifically, the
Board may impose discipline upon “the committing by a physician of an act
contrary to honesty . . . or good morals, whether the same is committed in the
course of the physician’s practice or otherwise.” Id. § 148.6(2)(g) (emphasis
added). Also punishable by the Board is a licensee’s “[w]illful or repeated
violation of lawful rule or regulation adopted by the board.” Id. § 148.6(2)(i). The
Board also has statutory authority to discipline a physician for “engaging in
unethical conduct or practice harmful or detrimental to the public”—“[p]roof of
actual injury need not be established” for such discipline to be lawful. Id.
§§ 147.55(3), 272C.10(3).
The Board’s sexual harassment rule provides: “A physician shall not
engage in sexual harassment. Sexual harassment is defined as verbal or
physical conduct of a sexual nature which interferes with another healthcare
worker’s performance or creates an intimidating, hostile or offensive work
environment.” Iowa Admin. Code r. 653-13.7(6) (emphasis added). As noted
above, Rabi argues this rule protects individuals other than patients and,
because the Board concluded he did not engage in conduct harmful or
detrimental to the public, the Board exceeded its statutory authority in disciplining
him under the rule.
The rule’s plain language makes clear that its primary purpose is to
protect patients by safeguarding the integrity of the performance of healthcare
workers. The Board is not limited to disciplining licensees for conduct that is
actually detrimental to the public but is allowed to discipline licensees for conduct
potentially detrimental to the public. See Iowa Code §§ 147.55(3) (stating
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“[p]roof of actual injury need not be established” for discipline relating to
“unethical conduct or practice harmful or detrimental to the public”); 272C.1(4)
(allowing discipline for “conduct which threatens . . . a high standard of
professional or occupational care” (emphasis added)); 272C.10(3) (repeating
“[p]roof of actual injury need not be established” for discipline relating to
“unethical conduct or practice harmful or detrimental to the public”). We
conclude the Board was within its statutory authority to promulgate rule 653-
13.7(6) and to discipline Rabi pursuant to that rule.
Rabi also challenges the findings of the Board and district court that he
violated the Board’s sexual harassment rule. This argument, however, is also
grounded in the Board’s finding that he did not engage in conduct harmful or
detrimental to the public. As noted above, actual harm to the public is not
required, as “conduct which threatens . . . a high standard of professional or
occupational care” is sufficient. Id. § 272C.1(4) (emphasis added). Conduct
“which interferes with another healthcare worker’s performance,” Iowa Admin.
Code r. 653-13.7(6), could quite obviously threaten the level of care provided in
healthcare facilities. Rabi further argues his conduct did not actually interfere
with other healthcare workers’ performance. Although the details of his conduct
need not be expressed here, the record reveals Rabi engaged in a pattern of
sexually-predatory behavior in the workplace that caused discomfort and
problematic work relationships. It is obvious that such tensions in the workplace
can interfere with job performance, especially in settings where teamwork and
collegiality are necessities, such as a pediatric intensive care unit in a hospital.
We affirm the district court’s conclusion that the environment Rabi created in the
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hospital could have potentially impacted patient care and the Board was
therefore warranted in disciplining Rabi under its sexual-harassment rule.
Rabi additionally argues the district court read Iowa Code section
148.6(2)(g)1 too broadly in affirming the Board’s decision that he engaged in
unethical or unprofessional conduct. He also argues discipline under section
148.6(2)(g) should be limited to licensee actions that “deny citizens of this state a
high standard of professional care.” Based on the foregoing analysis, the plain
language of section 148.6(2)(g) and administrative rule 563-23.1(4), and the
district court’s application of the same, we affirm the district court’s decision on
these final issues without further opinion. Finally, we do not consider the
arguments Rabi raises for the first time in this appeal in his reply brief. See
Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992) (“[A]n issue cannot be asserted
for the first time in a reply brief.”).
AFFIRMED.
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Rabi also argues on appeal that section 148.6(2)(g) is vague and, therefore,
unenforceable. Because Rabi did not specifically argue to the district court that this
statute is unenforceable, he failed to preserve error on the issue, and we do not consider
the argument. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”).