Dr. William Kyros v. Rhode Island Department of Health ( 2021 )

June 30, 2021
Supreme Court
No. 2020-104-M.P.
(PC 18-8998)
(Dissent begins on Page 19)
Dr. William Kyros :
v. :
Rhode Island Department of :
Health et al.
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2020-104-M.P.
(PC 18-8998)
(Dissent begins on Page 19)
Dr. William Kyros :
v. :
Rhode Island Department of :
Health et al.
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme
Court on May 18, 2021, pursuant to a writ of certiorari issued following a petition
for review filed by the defendants, the Rhode Island Department of Health (DOH)
and Nicole Alexander-Scott, M.D., in her capacity as Director of the DOH
(collectively defendants). The defendants seek review of an order and a judgment
of the Superior Court reversing a decision and order of the DOH Board of Medical
Licensure and Discipline (the Board) that required the plaintiff, William Kyros,
M.D. (Dr. Kyros or plaintiff)—who sought to return to the practice of medicine
after signing an agreement to cease practice in 2009—to complete a competence
assessment program and fitness for duty evaluation for physicians seeking to
reenter practice after discipline. The defendants argue that the trial justice erred:
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(1) in reversing the Board’s decision because, they contend, competent evidence in
the record supported the Board’s decision and the sanction imposed was not
arbitrary or capricious; and (2) in declining to remand the case to the Board for
further proceedings. For the reasons set forth in this opinion, we affirm the
judgment and the order of the Superior Court.
Facts and Travel
The plaintiff has been licensed as a physician in Rhode Island since June
1986. In August 2009 plaintiff and the Board entered into an Agreement to Cease
Practice (the Agreement). Apparently, the Board had “received notice that [Dr.
Kyros] engaged in unprofessional conduct by engaging in serious professional
boundary violations with patients.”1 Based on its investigation, the Board found
probable cause to discipline Dr. Kyros. It did not do so, however.
The parties entered into an agreement whereby Dr. Kyros waived his right to
a hearing and further procedural steps and agreed that failure to comply with the
Agreement would subject him to further disciplinary action. The Agreement
provided that Dr. Kyros would
“cease practicing any branch of medicine[,] * * * go for
an evaluation at the Sante Center for Healing, * * * [t]he
evaluation report must be sent directly to the Board[, and
1
The record reveals that, while investigating a complaint of a boundary violation
with a female patient that occurred in April 2009, the Board uncovered two
additional instances of alleged boundary violations with female patients “dat[ing]
back to the early 1990s[.]”
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that t]he Board will make a determination on final
sanctions after it reviews and considers the evaluation
report from [the] Sante Center for Healing.”
Doctor Kyros attended the Santé Center in Argyle, Texas, from August 17
through 20, 2009. A fifty-four-page comprehensive report was compiled by the
Santé Center and received by the Board on September 25, 2009 (the report). The
report detailed plaintiff’s personal history, evaluations by several health-care
professionals, the results of two polygraph examinations, and a preliminary
recommendation. The Santé Center recommended that “Dr. Kyros should not
return to the unrestricted practice of medicine through direct psychiatric patient
care” and that, at the appropriate time, he should return to supervised practice. The
report also recommended that Dr. Kyros successfully complete an education course
about maintaining proper boundaries. Significantly, the issue of Dr. Kyros’ “skill
and competence in the practice of medicine” was explicitly not addressed by the
Santé Center because it was beyond the scope of the assessment and within the
province of the Board and DOH.
Doctor Kyros was willing to do everything he reasonably could in order to
comply with the recommendations of the Santé Center and address the concerns
raised in the report. The record supports this contention. He promptly contacted
the Board, asking for guidance on what should be his next steps. Doctor Kyros
received no response. In November 2009, Dr. Kyros, proactively and of his own
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accord, began treating with Edward Brown, M.D., and Gene Jacobs, O.D., both of
whom are psychiatrists. In accordance with the recommendation in the report,
Dr. Kyros completed a course in Medical Ethics, Boundaries & Professionalism in
September 2010. Time passed.
On June 10, 2013, Dr. Kyros contacted the Board “to discuss his future.”
Enclosed was a report from Dr. Jacobs, which detailed his treatment and diagnosis
of Dr. Kyros. Doctor Jacobs stated, “After working with Dr. Kyros these past 3.5
years I saw no evidence of any characterological traits or patterns consistent with
or evidencing a propensity or likelihood of Dr. Kyros exhibiting boundary issues.”
Doctor Jacobs concluded that there was no further need for Dr. Kyros to engage in
psychiatric follow-up care, and he saw “no reason as to why Dr. Kyros cannot
restart clinical practice.”
Doctor Kyros met with the chief administrative officer of the Board, James
McDonald, M.D., and was directed to engage with the chairperson of the
Physicians Health Committee of the Rhode Island Medical Society, an agency not
affiliated with DOH. Doctor Kyros complied; in August 2013, he was told by
Chairperson Herbert Rakatansky, M.D., that he must undergo a forensic
psychiatric evaluation. He did so. On August 19, 2013, Daniel Harrop, M.D.,
submitted a report of his forensic evaluation of Dr. Kyros to Chairperson
Rakatansky. Doctor Harrop concluded that Dr. Kyros was fit for duty to have his
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license returned unrestricted. Chairperson Rakatansky contacted Dr. McDonald on
September 9, 2013, notifying him that Dr. Kyros had met with him, provided
supporting documents, and submitted to a forensic psychiatric evaluation.
Chairperson Rakatansky noted that he had “no reason to doubt” the favorable
conclusions reached by Dr. Jacobs and Dr. Harrop “that Dr. Kyros is no longer
impaired medically or psychologically[.]”
Three months later, on December 4, 2013, Dr. Kyros was formally issued a
preliminary finding of “Unprofessional Conduct” by an investigating committee of
the Board. Doctor Kyros met informally with Dr. McDonald in January 2014 to
discuss a potential resolution to the charge of unprofessional conduct. The parties
were unable to reach an agreement because Dr. Kyros was opposed to supervision
and probation. Doctor Kyros testified that he was unable to pursue a formal
hearing in 2014 due to financial circumstances. For nearly two years thereafter,
Dr. Kyros retained new counsel and engaged in discovery to prepare for what he
believed would be an eventual hearing before the Board. The parties continued to
meet several times to discuss settlement but were again stonewalled by the issue of
supervision and probation. Doctor Harrop submitted an updated report to the
Board in November 2015 and affirmed his earlier conclusion—that Dr. Kyros was
fit for duty, that an unrestricted license could be reinstated, and that Dr. Kyros
could resume practice.
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Negotiations over a consent order continued through Fall 2016. To no avail.
Finally, in March 2017, Dr. Kyros demanded a formal hearing before the Board
“regarding his fitness to return to the practice of medicine as contemplated in the”
Agreement. Doctor Kyros also submitted a “Reinstatement Application” to the
Board. The Board found his application to be incomplete, and Dr. Kyros
resubmitted the application in April 2017 and included proof that he had completed
four years of continuing medical education credits, from 2013 through 2017.
Doctor Kyros met with the licensing committee of the Board on August 3,
2017; due to “the complexity of [his] application[,]” the matter was tabled until
September 7, 2017, when the committee voted to require Dr. Kyros to “attend the
Sant[é] Center for a re-evaluation since so much time has elapsed since the original
evaluation.” The licensing committee also required him “to attend the Center for
Personalized Education for Physicians (CPEP) to assess [his] clinical competency
to practice psychiatry.” The committee indicated that once both evaluations were
complete, they would again reassess the application.
Yet another demand for a formal hearing was made by Dr. Kyros on
September 18, 2017. Doctor McDonald confirmed receipt of the demand letter and
invited Dr. Kyros to again appear before the licensing committee. Doctor Kyros
declined to re-appear and indicated his reluctance to attend the Santé Center and
CPEP because he felt it was unnecessary given the extensive treatment he had
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undergone. The committee denied Dr. Kyros’ application for licensure on October
10, 2017, and Dr. Kyros timely demanded a formal hearing.
The specification of charges by the Board is the focal point of our analysis
and determinative of our holding. A one-count specification of charges was issued
against Dr. Kyros in November 2017, alleging that he engaged in unprofessional
conduct—in violation of G.L. 1956 § 5-37-5.1—by violating provisions of chapter
37 of title 5 of the general laws, or the rules and regulations of the Board or the
director, or the provisions of an agreement of the Board. A hearing committee of
the Board conducted an evidentiary hearing on December 7, 2017, and January 31
and May 17, 2018, including the presentation of documentary and testimonial
evidence. The Board issued a ten-page written decision and order dated
November 14, 2018, which made four findings of fact. There was no finding that
Dr. Kyros engaged in “unprofessional conduct.” Doctor Kyros was ordered to
complete a competence assessment program and fitness for duty evaluation at
CPEP for physicians seeking to re-enter practice after discipline, to follow all
recommendations from CPEP, and satisfy all statutory requirements for licensing.2
The director adopted the decision and order of the Board, and Dr. Kyros filed a
timely notice of appeal to the Superior Court.
2
Doctor Kyros was also required to pay for certain costs and expenses arising out
of the administrative proceedings. Before the Superior Court, defendants conceded
that the imposition of administrative fees was improper. That issue is not before
the Court.
-7-
Before the Superior Court, Dr. Kyros alleged the usual grounds for an
administrative appeal: He argued that the decision was (1) in violation of
constitutional, statutory, or ordinance provisions; (2) in excess of the Board’s and
DOH’s authority; (3) made upon unlawful procedure; (4) affected by other error of
law; (5) clearly erroneous; and (6) arbitrary or capricious or characterized by abuse
of discretion. Specifically, Dr. Kyros asserted in support of his administrative
appeal that the Board’s order that Dr. Kyros attend CPEP was “disproportionately
harsh when compared to the sanctions propounded upon other similarly situated
physicians[,]” and “unsupported by factual findings in the Board’s [d]ecision.”
Doctor Kyros also argued that the length of time it took for the Board to determine
final sanctions and a path forward was arbitrary and capricious.
The defendants argued that the Board’s decision to require Dr. Kyros to
complete CPEP should be upheld because Dr. Kyros “has not proffered any proof
of his clinical competence to practice medicine[,]” and has “not seen a patient
since 2009[.]” The Board also maintained that any delay in Dr. Kyros’ return to
the practice of medicine was of his own accord because he refused multiple
opportunities to return to practice with supervision and probation.
The trial justice entertained argument on September 18, 2019; on
December 13, 2019, he issued a written decision granting the appeal and reversing
the Board’s decision. The trial justice found that “the Board relie[d] solely on Dr.
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Kyros’ nine-year gap in practicing medicine—a gap that the Board is largely
responsible for—to justify requiring clinical competency courses.” Referencing
the Board’s Superior Court filing in opposition to Dr. Kyros’ administrative
appeal, the trial justice noted that “[t]he Board arbitrarily believes this gap speaks
for itself” but that, in actuality, the record was “devoid of nearly any evidence that
Dr. Kyros is not clinically competent.” The trial justice recognized that the only
evidence of Dr. Kyros’ clinical competence was from Drs. Brown, Jacobs, and
Harrop, all of whom determined that Dr. Kyros was fit to return to the practice of
medicine, and the undisputed fact that Dr. Kyros had completed all continuing
medical education credits.
The trial justice expressed his concern “about the extensive license
deprivation” created by the Board “where Dr. Kyros was unable to understand and
fulfill what [the Board] wanted for over nine years.” The trial justice found that
Dr. Kyros never surrendered his medical license, but rather agreed to cease
practice pursuant to the Agreement; the doctor “was only forced to apply for
relicensure to get the Board to come to a conclusion when it repeatedly remained
silent regarding Dr. Kyros’s efforts to return to practice.” The trial justice
correctly concluded that “there has been no finding by the Board of unprofessional
conduct[,] * * * there was no competent evidence to support a finding requiring
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Dr. Kyros to attend CPEP classes to address his clinical competency[,] * * * [and]
the imposition of that penalty was arbitrary and capricious.”
Accordingly, the Superior Court reversed the decision of the Board and
stated that
“[a]lthough the [c]ourt would typically be inclined to
remand this case to RIDOH for further proceedings—
with respect to inadequate findings of fact—here, the
[c]ourt finds that doing so would only cause more harm
and opportunity for delay after a nearly decade-long saga,
and moreover, the Board [d]ecision was not supported by
competent evidence.”
Final judgment entered in favor of plaintiff. This Court granted defendants’
petition for writ of certiorari on April 24, 2020, and a writ issued on April 29,
2020.3
Standard of Review
The Superior Court’s review of an administrative decision is governed by
the Administrative Procedures Act, G.L. 1956 chapter 35 of title 42.4 “[T]he
3
We also granted defendants’ emergency motion to stay enforcement of the trial
justice’s decision pending our consideration of the writ of certiorari.
4
General Laws 1956 § 42-35-15(g) provides:
“The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of
fact. The court may affirm the decision of the agency or
remand the case for further proceedings, or it may
reverse or modify the decision if substantial rights of the
appellant have been prejudiced because the
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Superior Court must uphold the agency’s decision if it is supported by legally
competent evidence.” Endoscopy Associates, Inc. v. Rhode Island Department of
Health, 183 A.3d 528, 532 (R.I. 2018). “When this Court reviews the Superior
Court’s decision on certiorari, we apply the ‘some’ or ‘any’ evidence test and
review the record to determine whether legally competent evidence exists to
support the findings.’” Id. (brackets omitted) (quoting Sartor v. Coastal Resources
Management Council, 542 A.2d 1077, 1083 (R.I. 1988)). This Court will “not
weigh the evidence, but rather determine whether the trial justice was legally
justified in modifying or reversing the agency’s order.” Id. (quoting Interstate
Navigation Co. v. Division of Public Utilities and Carriers, 824 A.2d 1282, 1286
(R.I. 2003)). We also examine the record for any errors of law. Id.administrative findings, inferences, conclusions, or
decisions are:
“(1) In violation of constitutional or statutory
provisions;
“(2) In excess of the statutory authority of the
agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error of law;
“(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
“(6) Arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion.”
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Analysis
Before this Court, defendants assert two claims of error. The defendants
first argue that the trial justice erred in finding that the Board’s decision was
arbitrary, capricious, and not supported by competence evidence. Specifically,
defendants contend that the CPEP requirement was made pursuant to the
Agreement—which authorized the Board to take into consideration the Santé
Center Report and make a final determination on sanctions—and the Board’s
decision noted that Dr. Kyros had not seen a patient since 2009, thereby supporting
this sanction. The defendants are mistaken.
The specification of charges issued against Dr. Kyros is the controlling
document in this case, and it alleges that Dr. Kyros violated § 5-37-5.1. This
section of our general laws is entitled “Unprofessional conduct” and enumerates
thirty-one items that may constitute unprofessional physician conduct. The Board
specifically charged Dr. Kyros with violating § 5-37-5.1(24), which qualifies
unprofessional conduct as “[v]iolating any provision * * * of this chapter or the
rules and regulations of the board or any rules or regulations promulgated by the
director or of an action, stipulation, or agreement of the board[.]” This charge was
not sustained. Doctor Kyros was not found to have engaged in unprofessional
conduct, and no disciplinary sanction was imposed. The Board did not address it.
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The Board’s decision overlooked, and indeed ignored, the specification of
charges and declared that the issue before it was not whether Dr. Kyros “engaged
in unprofessional conduct by violating a Board order and if so, what discipline
should be imposed, but rather * * * whether because of previous complaints of
unprofessional conduct that resulted in the Agreement should [Dr. Kyros] be
allowed to be re-licensed in light of the requirements in the Agreement.”
(Emphasis added.) This was a marked departure from the specification of charges
and was made upon unlawful procedure. The trial justice was correct in
concluding that the Board never made a finding that Dr. Kyros was guilty of
unprofessional conduct.
The Board made no finding that Dr. Kyros violated the terms of the
Agreement and, importantly, the record is devoid of any evidence that he did so.
Both sides were bound by the terms of the Agreement. It is not a flexible concept.
The record before us establishes that Dr. Kyros attempted to fulfill all of his
obligations under the Agreement, including attending the Santé Center, complying
with the recommendations in the report, treating with psychiatrists, and completing
a course in proper boundaries and professionalism. He sought guidance from the
Board on numerous occasions as to his next steps; and, if he received a response
from the Board, he followed through with their instructions, including engaging
with the Physicians Health Committee of the Rhode Island Medical Society and
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submitting to a forensic psychiatric evaluation, all at his expense. He also
completed all continuing medical education credits from 2013 through 2017.
Despite Dr. Kyros’ unflagging efforts to comply with the terms of the Agreement
and satisfy all requests made by defendants, the Board—for nine years—neglected
its obligation under the Agreement to “make a determination on final sanctions”
and ultimately imposed none. The Board made no findings about Dr. Kyros’
clinical competency and there is no credible evidence to support its order for a
competence assessment program and fitness for duty evaluation for practitioners
seeking to reenter practice after discipline.
The trial justice found that the record was devoid of any evidence that Dr.
Kyros was not clinically competent to practice medicine. In the face of this
finding, a remand would be futile. Although the Board acknowledged in its
decision that pursuant to “the Agreement, the Board is to take into consideration
the Sant[é] Center’s Report when determining any licensing and discipline
issues[,]” it overlooked and misconceived the provision in the report that “[t]he
issue of skill and competence in the practice of medicine is beyond the scope of
this assessment and will not be addressed here.” Accordingly, any reliance by
defendants on the report to uphold the Board’s decision is misplaced and was
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properly rejected by the trial justice.5 The issue of skill and competence was
textually committed to the DOH, and DOH failed to present any evidence and
made no findings.
The only competent evidence in the record of Dr. Kyros’ fitness for clinical
practice is the positive reports from three respected medical practitioners, Drs.
Brown, Jacobs, and Harrop, as well as the evidence that he completed all
continuing medical education credits. In their reports, the physicians each reached
the same conclusion: Doctor Kyros was fit to have his license reinstated and return
to clinical practice. The Board erroneously concluded:
“Pursuant to the Agreement * * * the Committee
unanimously found that in order to be re-licensed, [Dr.
Kyros] shall ensure competency by satisfactorily
completing the fitness for duty and clinical competency
assessment at CPEP and by following all
recommendations from CPEP. [Doctor Kyros] shall keep
5
Notwithstanding the lack of relevance of the report to the issue of Dr. Kyros’
clinical competency, we note our concern about the fact that two polygraph
examinations were employed to support the conclusion that Dr. Kyros should not
return to the unrestricted practice of medicine because he was not “fully truthful
[or] is in denial about his own actions or contributions to the situations that led to
his past and current complaints.” This Court has “conclud[ed] that the ‘test results
of polygraph examinations have not been established as scientifically reliable.’”
State v. Werner, 851 A.2d 1093, 1103 (R.I. 2004) (quoting State v. Dery, 545 A.2d
1014, 1017 (R.I. 1988)). We have “determined that polygraph examinations are
unreliable and that no evidence exist[s] tying deceit and lying to the physiological
reactions measured by a polygraph examination.” Id. Accordingly, polygraph
evidence is categorically excluded under our jurisprudence. Id. Because a
polygraph examination is not an accepted investigatory tool, its inclusion in the
report is unsettling.
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the Board informed of his progress at CPEP on an
ongoing basis.”
The Board’s reliance on the Agreement to support these findings is clearly
erroneous. The Agreement is silent on the question of clinical competency. The
Board failed to make a single finding that Dr. Kyros was, in fact, not clinically
competent, and wholly overlooked the substantial evidence in the record that
plaintiff was fit for clinical practice.
Although the Board argued to the trial justice that Dr. Kyros’ “lapse of more
than nine years speaks for itself relative to the question of clinical competence,”
this blanket assertion is of no moment to the issue before us and ignores the
reliable and probative evidence in the record. Furthermore, this argument is belied
by the fact that the Board specifically limited Dr. Kyros to the programs for
physicians who have been disciplined.6
Pursuant to § 5-37-6.2, the Board is required to “prepare written findings of
fact and law” to support its conclusions and decision. If the Board fails to
adequately do so, then the Superior Court may, pursuant to § 42-35-15(g), find the
decision erroneous and unsupported by evidence, or arbitrary or capricious. See
6
The Board’s decision specifically directed Dr. Kyros to complete CPEP’s clinical
competency assessment. The Board acknowledged that this program is reserved
for “[t]hose seeking to reenter practice after discipline[,]” and the decision stated
that Dr. Kyros was not to complete the reentry to clinical program at CPEP. Thus,
the sanction imposed by the Board was clearly a disciplinary sanction. A
necessary predicate to discipline was a finding by the Board that he was guilty of
unprofessional conduct. There is no such finding.
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Sakonnet Rogers, Inc. v. Coastal Resources Management Council, 536 A.2d 893,
896 (R.I. 1988) (“An administrative decision that fails to include findings of fact
required by statute cannot be upheld.”). In this case, the Board wholly failed to
make findings of fact that supported its conclusion that Dr. Kyros needed to attend
postdiscipline CPEP programs to assess his clinical competency. Instead, the
Board attempted to support the CPEP requirement—which apparently could cost
approximately $28,000—by arguing that the necessity of the program spoke for
itself. The Superior Court properly recognized these deficiencies and reversed the
decision.
The defendants also submit that the trial justice erred in declining to remand
the case to the Board for further proceedings because the protection of the health
and safety of the public “outweigh[s] concern for prejudice of [Dr. Kyros’] right to
a final adjudication within a reasonable period.” We disagree with this contention.
Parties who are subject to administrative proceedings have the right to an
expeditious agency decision and judicial decision. Only the trial justice complied
with this mandate; the DOH did not. Indeed, this Court has “acknowledge[d] that
there are instances in which a remand to an administrative agency may not be the
most appropriate remedy[,]” including those cases in which a remand would not
“‘further the interests of justice * * * [or] provide decisive new information.’”
Champlin’s Realty Associates v. Tikoian, 989 A.2d 427, 449 (R.I. 2010) (quoting
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Easton’s Point Association, Inc. v. Coastal Resources Management Council, 559
A.2d 633, 636 (R.I. 1989)).
Doctor Kyros voluntarily ceased practicing medicine for more than nine
years. It is striking that defendants would now claim that this matter should be
further delayed in order to afford them an opportunity to attempt to correct the
deficiency of the Board’s decision which did not comply with the specification of
charges. Allowing defendants to continue to stonewall Dr. Kyros’ return to the
practice of medicine will not further the interests of justice.7
Moreover, remanding the matter to the Board would not produce new
information that could cure the deficiency of the Board’s decision. As we have
already concluded, there is no evidentiary support in the record that Dr. Kyros is
not clinically competent. The passage of time does not speak to anything in light
of all that Dr. Kyros has done in furtherance of the Agreement. It is not for us to
hold otherwise. Accordingly, we discern no error with the trial justice’s decision
reversing the Board’s decision and declining to remand for further proceedings.
7
We acknowledge that, at times, delay in the resolution of this matter may have
been caused by Dr. Kyros’ financial situation, his desire to retain new counsel,
and/or tactical decisions made by counsel. However, Dr. Kyros’ actions in no way
relieved the Board of its responsibilities pursuant to the Agreement to determine
final sanctions.
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Conclusion
The judgment of the Superior Court is affirmed. The papers may be
remanded to the Superior Court with our decision endorsed thereon.
Justice Robinson, dissenting. I respectfully but vigorously dissent from the
majority’s opinion in this important and vexing case. I never lightly dissent, but I
am unequivocally convinced that I must do so forcefully in this case. In my
opinion, the hearing justice erred when he reversed the decision of the Rhode
Island Department of Health’s Board of Medical Licensure and Discipline (the
Board), which had required that, in order to be re-licensed, William Kyros, M.D.,
must “satisfactorily complet[e] the fitness for duty and clinical competency
assessment at [the Center for Personalized Education for Physicians (CPEP)]
and * * * follow[ ] all recommendations from CPEP.”
I acknowledge at the outset, as I must, that our standard of review in the
context of a case which comes to this Court by way of a writ of certiorari is
deferential: we do not weigh the evidence but rather review “the record as a whole
to determine whether any legally competent evidence[1] exists therein to support
1
“Legally competent evidence (sometimes referred to as ‘substantial
evidence’) has been defined as relevant evidence that a reasonable mind might
accept as adequate to support a conclusion[; it] means an amount more than a
scintilla but less than a preponderance.” Town of Burrillville v. Rhode Island State
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the trial court’s decision or whether the trial court committed [an] error of law in
reaching its decision.” Banki v. Fine, 224 A.3d 88, 94 (R.I. 2020) (internal
quotation marks omitted); see also Preservation Society of Newport County v. City
Council of City of Newport, 155 A.3d 688, 692 (R.I. 2017) (“If legally competent
evidence exists to support [the] determination [at issue], [this Court] will affirm it
unless one or more errors of law have so infected the validity of the proceedings as
to warrant reversal.”) (internal quotation marks omitted). It is my position that the
hearing justice in this case clearly committed errors of law in reversing the
decision of the Board.
The basis of my disagreement with the majority is twofold. First, I am of the
opinion that the hearing justice clearly erred as a matter of law in this case in
failing to recognize that the “Agreement to Cease Practice” (the Agreement),
which Dr. Kyros and the Director of Health (on behalf of the Department of
Health) signed in 2009, controls this case. Second, in my judgment, the hearing
justice also erred in failing to recognize the Board’s explicit statutory authority to
see to it that the public is properly protected when the Board is dealing with a
doctor who, as of the time of the Board’s decision, had not practiced medicine in
approximately nine years.
Labor Relations Board, 921 A.2d 113, 118 (R.I. 2007) (internal quotation marks
omitted).
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This dispute began when the Board received “notice that [Dr. Kyros]
engaged in unprofessional conduct by engaging in serious professional boundary
violations with patients.” An Investigating Committee of the Board then “found
probable cause for discipline.” In response to that finding, Dr. Kyros and the
Board entered into the Agreement “for settlement purposes * * *.” The Agreement
explicitly set forth the following pertinent facts: (1) the Board had “received
information concerning three boundary violations with women who were [Dr.
Kyros’s] patients” dating from the early 1990s to 2009; and (2) “[t]he complaints
to the Board implicate[d] the provisions of R.I.G.L.5-37-5.1 (30) for sexual contact
between a doctor and a patient.”
The Agreement further provided that Dr. Kyros was waiving a number of
rights, including his right to appear personally or by counsel (or both) before the
Board; his right to further procedural steps (except for those specifically contained
in the Agreement); and “[a]ny and all” of his rights to appeal the Agreement.2 The
Agreement reflected Dr. Kyros’s explicit assent to complying with the following
requirements: (1) cease practicing; and (2) attend the Santé Center for Healing for
2
In my opinion, Dr. Kyros’s waiver of these rights in the Agreement, which
expressly stated that it was entered into “for settlement purposes,” is the reason the
allegations against him did not progress to a determination by the Board as to
whether or not he had engaged in unprofessional conduct. Doctor Kyros chose to
settle as opposed to availing himself of the further procedural steps before the
Board (and an appeal to Superior Court), to which he would otherwise have been
entitled.
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an evaluation. It further provided that the Board would “make a determination on
final sanctions after it reviews and considers the evaluation report from [the] Sante
Center for Healing.” It is significant that Dr. Kyros’s signature appears at the end
of the Agreement.3
A contract, like the Agreement at issue in this case, is binding on the
signatories to the contract. See Lamoureux v. Burrillville Racing Association, 91
R.I. 94, 98, 161 A.2d 213, 215 (1960) (“A contract is an agreement which creates
an obligation.”) (quoting 17 C.J.S. Contracts § 1 at 310); 17A Am. Jur. 2d
Contracts § 1 (May 2021 Update) (“A ‘contract’ is an agreement between two or
more parties that creates obligations that are legally enforceable by the contracting
parties.”); see also Manchester v. Pereira, 926 A.2d 1005, 1012 (R.I. 2007) (“[I]t
has long been a settled principle that a party who signs an instrument manifests his
assent to it and cannot later complain that he did not read the instrument or that he
did not understand its contents.”) (internal quotation marks omitted). Thus, Dr.
Kyros is bound by his agreement to allow the Board to make a determination of
final sanctions after it reviewed the Santé Center evaluation. After carefully poring
over the record, it is my opinion that that is what the Board has actually done in
this case. The Board has surely not acted with maximal celerity and clarity, but it
has nonetheless done what it contractually bound itself to do when the critically
3
I further note that it is clear from the record that Dr. Kyros was represented
by counsel at the time he entered into the Agreement.
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important Agreement was signed by both parties in the wake of the Board’s having
“received information concerning three boundary violations with women * * *.”
I readily acknowledge that the Board’s ultimate decision was issued years
after the signing of the Agreement. At the same time, however, it is noteworthy
that the Agreement did not contain any timeline provision. Additionally, I would
note that, while the Board is not blameless with respect to the delay in this case, it
is clear from the record that a meaningful portion of the delay was the result of
negotiations between the Board and Dr. Kyros with respect to his possible return to
practice and the conditions that might be attached thereto. The record reflects that
those negotiations were unsuccessful at least in part due to Dr. Kyros’s resistance
to supervised practice. Because, in my judgment, the Agreement which Dr. Kyros
opted to enter into allows for the Board to determine final sanctions, as it has now
done, it was error on the part of the hearing justice to reverse the Board’s decision.4
Doctor Kyros voluntarily chose to settle by entering into a contractual agreement
with the Board. It is my unblinking view that he must now live with the binding
legal effect of that choice.
4
I would note that the Board’s decision in this case specifically stated that the
issue before it was whether Dr. Kyros should be relicensed “in light of the
requirements in the Agreement.” The fact that the specification of charges (on
which the majority so heavily relies) stated something different does not alter my
conclusion about the authority that the Board had to act as it did under the
Agreement.
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That being said, it is separately my opinion that the Board had competent
evidence to support its decision given the fact that Dr. Kyros has, as of now, not
practiced medicine for approximately twelve years. The Department of Health is
specifically charged, by statute, with taking “cognizance of the interests of life and
health among the peoples of the state * * *.” General Laws 1956 § 23-1-1. The
Board, and in turn both the Superior Court and this Court, owe a solemn duty to
the public to ensure that medical professionals who are licensed to practice
medicine in this state are at least minimally competent. Twelve years away from
any profession would in all likelihood affect one’s competency and skill. In the
field of medicine particularly, twelve years might well be the metaphorical
equivalent of an eternity when one considers the rate of medical advancements in
the modern world. The Board was well within its authority with respect to its role
in licensing physicians and its duty to the public when it required Dr. Kyros to
attend CPEP so that there might be assurances of his clinical competency after
what was then an approximately nine-year hiatus from practice. In my view
(which is contrary to that of the hearing justice), that fact alone serves to show that
the Board’s decision was not arbitrary and capricious; I submit that the hearing
justice erred in finding it to be so.5
5
I note that, in my opinion, it is relevant that the report from the Santé Center
explicitly deferred the issue of competency to the Board. Moreover, I would note
that my view in this case is not altered by the fact that the CPEP programs which
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In addition, I wish to direct attention to the following language from the
Rhode Island Code of Regulations pertaining to the Department of Health:
“Granting of licensure after a lapse for non-disciplinary
reasons. If a physician has not engaged in the active
practice of medicine for two (2) years or more the Board
shall establish clinical competency of the applicant prior
to reactivation or reinstatement. The Board may establish
clinical competency based on any or all of the following:
“* * *
“3. An evaluation of clinical competency by a
Board approved organization, such as the Center
for Personalized Education for Physicians (CPEP).
The applicant is responsible to report the results of
an evaluation from a Board approved organization
and follow the recommendations for ongoing
competence * * *.” 216 RICR 40-05-1.5(E).
Although I acknowledge that, because of its date of enactment, this regulation as
such is not applicable to this case, it is at least evidence of the fact that, even in
cases where an absence from practice was for non-disciplinary reasons and has
lasted only two years (as opposed to the approximately twelve years at issue in this
case), the Board may now require that the physician attend CPEP, just as it has
done here.
I am convinced that the Board, in requiring Dr. Kyros to attend CPEP, was
well within its authority and, frankly, was acting in a laudably responsible manner,
the Board directed Dr. Kyros to complete were apparently programs to be
completed after discipline; what matters is that the Board was seeking to assure
itself of Dr. Kyros’s present competence to serve as a medical doctor in this state.
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acting pursuant to its statutory duty to protect the public.6 It seems to me that all
responsible citizens should be very concerned about the potentially harmful effect
on unwitting members of the public of the ministrations of a doctor who has not
practiced medicine in approximately twelve years and who, as a result of the
decision of the majority, will not be required to do anything to prove that he
remains competent to practice.7 To me, the potential threat to the “life and health
6
The appropriateness of the Board’s action vis-à-vis Dr. Kyros in this case is
in my view one whose necessity is self-evident. To my mind, the Board acted in a
manner that was entirely consistent with common sense. See Peak v. United
States, 353 U.S. 43, 46 (1957) (“That seems to us to be the common sense of the
matter; and common sense often makes good law.”).
7
The majority relies on the positive reports of Edward M. Brown, M.D., Gene
Jacobs, D.O., and Daniel S. Harrop, M.D., and the fact that Dr. Kyros completed
all of his continuing medical education credits as evidence of clinical competency.
I strongly disagree that those reports and credits are genuinely instructive as to the
issue of clinical competency.
I note initially that Dr. Brown’s report (which is surely not entirely positive)
dates back to 2010, and both Dr. Jacobs’s report and Dr. Harrop’s initial report
date back to 2013, thus eight years and five years respectively before the Board’s
decision at issue in this case. Indeed, Dr. Harrop’s updated report was from 2015,
some three years prior to the Board’s decision at issue in this case. But, more
importantly, after reading these reports, it is clear to me that they reflect a focus on
Dr. Kyros’s mental health and whether his mental health was such that it would
permit him to responsibly practice in view of the complaints about him stemming
from allegations concerning “sexual contact between the doctor and a patient” that
gave rise to this case. Those reports do not discuss Dr. Kyros’s clinical
competency. Additionally, I do not believe that continuing medical education
credits are indicative of clinical competency in this particular case, given the
lengthy period of time during which Dr. Kyros has been away from the practice of
medicine.
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[of] the peoples of the state” should trump any other consideration. Section
23-1-1.
Accordingly, for the reasons set forth herein, I respectfully assign error to
the hearing justice because, in my judgment, he erred as a matter of contract law
and also with respect to the import of the Board’s statutory charge to protect the
public when licensing physicians.
I do not question the sincerity of the disapprobation of the regrettable
lassitude of the Board in dealing with the case of Dr. Kyros that has resulted in the
position taken by the majority—although I hasten to add that Dr. Kyros too lives in
a glass house with respect to the enormous delays that are reflected in the record.
In the end, however, bearing in mind the crucial role of the Department of Health
vis-à-vis the citizenry, I very respectfully question whether the decision of the
majority comports with what real justice requires in this so very troubling case. In
the same tone of respectfulness, but also with ardent conviction, I conclude by
remarking that I have never forgotten the observation of the late Justice Thomas
Kelleher to the effect that “the attainment of justice * * * is the true purpose of a
court’s existence.” Wilkinson v. Harrington, 104 R.I. 224, 230, 243 A.2d 745, 749
(1968).8
8
I certainly do not for a moment mean to imply that my respected colleagues
ever fail to pursue justice. However, I am profoundly aware that what is “just” can
be the subject of good-faith debate. It is my humble opinion that the Court’s
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Therefore, I record my respectful but wholehearted dissent in this case.
opinion in this case does not attain justice, but I do not question the sincerity of
those who view the issue differently.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Dr. William Kyros. v. Rhode Island Department of
Title of Case
Health et al.
No. 2020-104-M.P.
Case Number
(PC 18-8998)
Date Opinion Filed June 30, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear
For Plaintiff:
Andrew G. Blais, Esq.
Jackson C. Parmenter, Esq.
Attorney(s) on Appeal
For Defendants:
Morgan A. Goulet, Esq.
Bruce D. Todesco, Esq.
SU-CMS-02A (revised June 2020)