Denis A. Yalkut, M.D. v. Kentucky Board of Medical Licensure ( 2023 )

RENDERED: JUNE 2, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0408-MR
DENIS A. YALKUT, M.D. APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 20-CI-002655
KENTUCKY BOARD OF MEDICAL APPELLEE
LICENSURE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT,
JUDGES.
THOMPSON, CHIEF JUDGE: Denis A. Yalkut, M.D. (“Appellant”), appeals
from an opinion and order of the Jefferson Circuit Court denying his motion to
declare Kentucky Revised Statutes (“KRS”) 311.595(21) illegal and
unconstitutional. The statute grants to the Kentucky Board of Medical Licensure
(“the Board”) the authority to limit, restrict, or suspend a license to practice
medicine. Appellant argues that KRS 311.595(21) is illegal in its application; that
it is unconstitutional; and, that the circuit court’s opinion and order are not
supported by substantial evidence. After careful review, we find no error and
affirm the opinion and order on appeal.
FACTS AND PROCEDURAL HISTORY
Appellant is a medical doctor licensed to practice in the
Commonwealth. On July 1, 2014, the Medical Staff Executive Committee of
Baptist Health Richmond (“Baptist Health”) recommended denying Appellant’s
application for reappointment to the medical staff with clinical privileges. This
recommendation was based on a finding that Appellant engaged in unprofessional
conduct and professional incompetence including 1) conducting operations lasting
longer than normal with higher levels of blood loss; 2) conducting surgery without
the required privileges; 3) performing procedures without the patient’s informed
consent; 4) prescribing drugs to which the patient was allergic, and responding
rudely when informed of the issue; 5) repeatedly disrupting the operating room’s
schedule; 6) refusing to change into clean scrubs before entering the operating
room; 7) having ongoing problems with documentation and legibility, which did
not improve after counseling; and, 8) engaging in rude behavior to staff and
patients. Based on its findings, the governing body of Baptist Health approved the
recommendation not to renew Appellant’s hospital privileges.
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In March 2015, Appellant submitted an application to the Board to
renew his license pursuant KRS Chapter 311. In April 2017, the Board opened an
investigation relating information it received regarding the 2014 denial of
Appellant’s privileges at Baptist Health. Based on this information, and
Appellant’s acknowledgement that he lost his privileges at Baptist Health, the
Board’s Inquiry Panel issued a complaint against Appellant’s license. Appellant
filed an answer to the complaint on May 22, 2017, and while acknowledging the
loss of privileges, argued that it was not based on numerous incidents of
incompetence and unprofessional conduct.
The matter proceeded before a hearing officer, and was held in
abeyance pending the outcome of Strauss v. Kentucky Board of Medical Licensure,
No. 2015-CA-000700-MR, 2017 WL 2209952, (Ky. App. May 12, 2017), and
Appellant’s suit against the hospital. The Kentucky Supreme Court ultimately held
in Strauss1 that the Board was not required to review the proceedings in their
entirety before issuing a final order, and that the hearing officer was not required to
recommend a specific penalty. Appellant’s civil action against the hospital was
settled.
The Board moved for a summary disposition of its complaint based on
the record. After conducting a hearing, the hearing officer determined that
1
Kentucky Board of Medical Licensure v. Strauss, 558 S.W.3d 443 (Ky. 2018).
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Appellant violated KRS 311.595(21). The matter then went before the Board’s
Hearing Panel B, which reviewed the complaint; the hearing officer’s findings of
fact, conclusions of law, and recommended order; the Board’s exceptions; and, the
Board’s memorandum. Hearing Panel B then rendered a final order finding that
Appellant violated KRS 311.595(21). It imposed no discipline upon Appellant’s
license to practice medicine, however, upon determining that discipline was
unnecessary under the circumstances.
On April 23, 2020, Appellant filed a Petition for Judicial Review in
Jefferson Circuit Court seeking reversal of the Board’s final order. After taking
proof, the circuit court rendered an opinion and order on March 12, 2022,
affirming the Board’s final order. In support of the opinion and order, the circuit
court found that Appellant received due process, and that the Board’s findings
were supported by substantial evidence. This appeal followed.
STANDARDS OF REVIEW
The standard of review for an administrative adjudicatory decision is
whether the decision is clearly erroneous. Stallins v. City of Madisonville, 707
S.W.2d 349, 351 (Ky. App. 1986). A decision is clearly erroneous if it is not
supported by substantial evidence. Id.Substantial evidence is defined as evidence, taken alone
or in light of all the evidence, that has sufficient
probative value to induce conviction in the minds of
reasonable people. If there is substantial evidence to
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support the agency’s findings, a court must defer to that
finding even though there is evidence to the contrary. A
court may not substitute its opinion as to the credibility
of the witnesses, the weight given the evidence, or the
inferences to be drawn from the evidence. A court’s
function in administrative matters is one of review, not
reinterpretation.
Thompson v. Kentucky Unemployment Ins. Comm’n, 85 S.W.3d 621, 624 (Ky.
App. 2002) (footnotes and citations omitted).
We apply a de novo standard of review when reviewing the
constitutionality of a statute. Teco/Perry County Coal v. Feltner, 582 S.W.3d 42,
45 (Ky. 2019) (citation omitted). “In considering an attack on the constitutionality
of legislation, this Court has continually resolved any doubt in favor of
constitutionality rather than unconstitutionality.” Hallahan v. Mittlebeeler, 373
S.W.2d 726, 727 (Ky. 1963) (citing Reynolds Metal Co. v. Martin, 269 Ky. 378,
107 S.W.2d 251, 253 (1937)).
ARGUMENTS AND ANALYSIS
Appellant first argues that the circuit court erred in failing to conclude
that KRS 311.595(21) is illegal and unconstitutional. This statute empowers the
Board to limit, restrict, or deny a license to practice medicine in the
Commonwealth based on prior disciplinary action having been taken against the
applicant by a licensed hospital. Appellant asserts that by including prior hospital
disciplinary action in the Board’s analysis, KRS 311.595(21) improperly deputizes
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private entities and individuals – i.e., hospitals and hospital staff – to perform a
critical part of the adjudicatory process assigned by statute to the Board.
Appellant also directs our attention to KRS 13B.090, which sets out
the procedural rights to be exercised in the administrative process. He argues that
because private hospitals are not subject to these procedurals safeguards, the
Board’s consideration of hospital proceedings in its application of KRS
311.595(21) runs afoul of his constitutional rights. The focus of Appellant’s
constitutional claim is that the Legislature cannot prescribe the due process
necessary to discipline a physician’s medical licensure by requiring compliance
with KRS Chapter 13B, while at the same time authorizing the consideration of a
private hospital’s disciplinary proceeding where there were no procedural due
process safeguards.
Lastly, Appellant argues that the opinion and order on appeal was not
supported by substantial evidence of record. He seeks an opinion 1) finding KRS
311.595(21) is unconstitutional; 2) finding that KRS 13B.090(7) requires the
Board to name the penalty that it is seeking, and to provide evidence to support the
penalty being sought; and, 3) vacating the opinion and order on appeal.
KRS 311.595 states,
If the power has not been transferred by statute to some
other board, commission, or agency of this state, the
board may deny an application or reregistration for a
license; place a licensee on probation for a period not to
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exceed five (5) years; suspend a license for a period not
to exceed five (5) years; limit or restrict a license for an
indefinite period; or revoke any license heretofore or
hereafter issued by the board, upon proof that the
licensee has: . . .
(21) Been disciplined by a licensed hospital or
medical staff of the hospital, including removal,
suspension, limitation of hospital privileges,
failing to renew privileges for cause, resignation of
privileges under pressure or investigation, or other
disciplinary action if the action was based upon
what the hospital or medical staff found to be
unprofessional conduct, professional
incompetence, malpractice, or a violation of any
provisions of KRS Chapter 311. This subsection
shall not require relitigation of the disciplinary
action[.]
The focus of Appellant’s argument is his contention that the Board’s
application of KRS 311.595(21) denied him the due process to which he was
entitled under KRS 13B.090, thus rendering KRS 311.595(21) illegal and
unconstitutional.
[U]nlike some legal rules, [due process] is not a
technical conception with a fixed content unrelated to
time, place and circumstances. Because of its amorphous
nature, due process must be applied flexibly as the
particular situation demands.
In . . . Mullane v. Central Hanover Bank & Trust
Co., [339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950),]
the United States Supreme Court said courts must assess
due process by determining whether notice [is]
reasonably calculated, under all circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections.
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Farmers National Bank v. Commonwealth Department of Revenue, 486 S.W.3d
872, 884 (Ky. App. 2015) (internal quotation marks and citations omitted).
After closely examining the record and the law, we conclude that KRS
311.595(21) is reasonably calculated to apprise interested parties of the pendency
of the action and to afford them the opportunity to present their objections. In the
matter sub judice, Appellant was apprised of the Board’s action and was afforded
an opportunity to present his objections to the Board. Nothing in the record
supports the claim that Appellant was denied the due process to which he was
entitled. Further, we find no basis for imposing on Baptist Health the due process
procedures required of the Board. By its clear language, KRS 13B.090 applies
broadly to administrative hearings, and KRS 311.595(21) applies specifically to
the Board in its consideration of medical licensure. Baptist Health is bound by
neither statute; therefore, we are not persuaded by Appellant’s argument that KRS
311.595(21) improperly deputized Baptist Health to perform a critical part of the
adjudicatory process assigned by statute to the Board. Finally, the Board
performed its own investigation and had an administrative hearing into Baptist
Health’s refusal to extend Appellant’s privileges. Appellant received appropriate
due process.
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A physician's due process rights are not violated where he is given
timely notice of a hearing and an opportunity to present his case concerning
restrictions on his license. Oliver v. Kentucky Bd. of Medical Licensure, 898
S.W.2d 531, 533 (Ky. App. 1995). Appellant received due process per KRS
13B.090 and KRS 311.595(21). And per Hallahan, supra, we must resolve any
doubt in favor of constitutionality rather than unconstitutionality. We find no
error.
Appellant also argues that the opinion and order on appeal are not
supported by substantial evidence. We disagree. Per KRS 311.595(21), the Board
may deny the reregistration, or suspend, restrict, or revoke a medical license where
proof is found that a licensed hospital disciplined the applicant. It is
uncontroverted that Baptist Health disciplined Appellant by revoking his privilege
to practice medicine at the hospital. The evidence of Baptist Health’s disciplinary
action has sufficient probative value to induce conviction in the minds of
reasonable people. Thompson, supra. Because substantial evidence exists to
support the Board’s findings, the circuit court was bound to defer to that finding
even if evidence to the contrary existed. Id. The circuit court properly determined
that substantial evidence existed to support the Board’s finding, and we find no
error.
CONCLUSION
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Having examined Appellant’s argument de novo per Teco/Perry
County Coal, supra, we conclude that KRS 311.595(21) is constitutional. We also
believe that the Board’s findings were supported by substantial evidence, and the
circuit court properly so concluded. For these reasons, we affirm the opinion and
order of the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Fox DeMoisey Nicole A. King
Prospect, Kentucky Louisville, Kentucky
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