Dale W. Economan, D.O. v. Indiana Medical Licensing Board (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 14 2017, 9:31 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David F. McNamar Curtis T. Hill, Jr.
McNamar & Associates, P.C. Attorney General of Indiana
Westfield, Indiana
Patricia C. McMath
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dale W. Economan, D.O., July 14, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A05-1609-PL-2102
v. Appeal from the
Marion Superior Court
Indiana Medical Licensing The Honorable David J. Dreyer
Board,
Trial Court Cause No.
Appellee-Respondent. 49D10-1603-PL-8939
Kirsch, Judge.
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[1] Dale W. Economan. D.O., appeals the dismissal of his petition for judicial
review1 of the extension of the suspension of his medical license after his license
had expired.
[2] We affirm.
FACTS AND PROCEEDURAL HISTORY
[3] Economan is a licensed physician in the State of Indiana. On August 25, 2015,
the State filed a Petition for Summary Suspension of Economan’s medical
license, seeking a ninety-day suspension based on allegations that Economan
was over-prescribing controlled substances, and regularly smoked marijuana.
Economan was the target of a criminal investigation by the United States
Department of Justice, Drug Enforcement Administration (“DEA”). On
August 27, 2015, the Indiana Medical Licensing Board (“Board”) held a
hearing at which Economan did not appear. The Board heard testimony and
considered evidence presented and found that Economan “engaged in a series
of acts that were dangerous to the public.” Appellant’s App. at 20. The Board
granted the summary suspension.
[4] Economan appeared by counsel at a hearing on October 22, 2015. The Board
extended the summary suspension for an additional ninety days. Economan
allowed his medical license to expire on October 31, 2015. On December 14,
1
See Administrative Orders and Procedures Act (AOPA), Ind. Code § 4-21.5-5-1 et seq. (2016).
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2015, the Board sent notice to Economan that a hearing would be held on
January 28, 2016 to consider another extension of the suspension. On
December 23, 2015, Economan filed a motion to dismiss on the grounds that
the matter was moot because he had allowed his medical license to expire.
Following a hearing on January 28, 2016, at which neither Economan nor his
attorney appeared, the Board denied his motion to dismiss and again extended
the suspension of his license for ninety days.
[5] On March 11, 2016, Economan filed a verified complaint for judicial review of
the Board’s decision to extend the suspension of his license after his license had
expired. On April 7, 2016, the Board filed its Motion to Dismiss Petition for
Judicial Review on the grounds the temporary suspension order was not a final
order subject to review pursuant to The Indiana Administrative Orders and
Procedures Act (“AOPA”).
[6] On April 12, 2016, Economan filed a submission of record for review. The
Board filed a second motion to dismiss on May 16, 2016, asserting that the
record submitted for review was not complete because it lacked transcripts of
two of the suspension hearings. On June 22, 2016, the trial court granted the
Board’s Motion to Dismiss. Economan filed a Motion to Correct Error which
was deemed denied on August 15, 2016. Economan filed his Notice of Appeal
on September 15, 2016. On December 30, 2016, this Court denied the Board’s
Motion for Involuntary Dismissal. Economan now appeals the dismissal of his
petition.
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DISCUSSION AND DECISION
[7] The Medical Licensing Board of Indiana regulates the practice of medicine
within Indiana and is charged with establishing standards for the competent
practice of medicine in the state. Ind. Code § 25-22.5-2 et seq. The Board’s
general authority to summarily suspend medical licenses derives from Indiana
Code section 25-1-9-10(a), which provides:
The board may summarily suspend a practitioner’s license for
ninety (90) days before a final adjudication or during the appeals
process if the board finds that a practitioner represents a clear and
immediate danger to the public health and safety if the
practitioner is allowed to continue to practice. The summary
suspension may be renewed upon a hearing before the board, and
each renewal may be for ninety (90) days or less.
[8] AOPA governs judicial review of decisions made by the Board. Ind. Code § 4-
21.5-2-0.1 et seq. Here, the trial court dismissed the petition for judicial review
for two reasons: first, because Economan is seeking review of the summary
suspension of a medical license, a non-final agency action; and second, because
Economan did not submit a complete agency record with the trial court.
[9] Economan does not challenge the Board’s authority to summarily suspend his
license when it originally did so on August 27, 2015. Once his license had
expired on October 31, 2015, however, Economan claims the Board could not
extend the suspension of his license.
[10] On March 9, 2016, Economan filed a Notice of Appeal/Praecipe for the
Record, requesting the Board to prepare the Record of all proceedings for
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submission to the trial court for the judicial review. However, the agency
record submitted to the trial court by Economan did not include the transcript
of the August 27, 2015 hearing or the January 28, 2016 hearing. Economan
admits the transcripts of the August 27 and January 28 hearings were not
submitted.
[11] Pursuant to AOPA, within thirty days after an aggrieved party files its petition
for judicial review, or within further time allowed by the court, the petitioner
shall transmit to the court the original or a certified copy of the agency record
for judicial review of the agency action. Ind. Code § 4-21.5-5-13(a). AOPA
defines “agency record” as the “evidence received or considered by the agency
as well as the transcript of the record considered before disposition of a
proceeding.” Ind. Code § 4-21.5-3-33(b)(4), (8). Specifically, the agency record
includes documents identified by the agency as having been considered by it
before its action and used as a basis for its action. Ind. Code § 4-21.5-5-13(a).
Here, the Board considered both testimony and evidence presented at the
January 28, 2016 hearing.
[12] Submitting the agency record in a timely manner is a prerequisite for judicial
review. As the Indiana Supreme Court stated, “a petitioner for review cannot
receive consideration of its petition where the statutorily-defined agency record
has not been filed.” Teaching Our Posterity Success, Inc., v. Ind. Dep’t of Educ., 20
N.E.3d 149, 155 (Ind. 2014). A complete record is always necessary unless the
parties stipulate to a condensed record. Id. at 154. Although Indiana Code
section 4-21.5-5-13(c) provides that the Board compiles the record upon
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petitioner’s request, the burden is on the petitioner to submit the complete
record. Id. at 152; Ind. Code § 4- 21.5-5-13(a). It was not enough that
Economan requested the entire record. It was his responsibility to ensure that
he submitted a complete record to the trial court. Nothing in the record before
this court indicates that he followed up with the Board to get the transcripts he
originally requested. AOPA provides a mechanism for submitting less than the
entire agency record as defined by statute. The parties may condense the record
by stipulation. Ind. Code § 4-21.5-5-13; Teaching Our Posterity, 20 N.E.3d at
154.
[13] Economan’s argument that the record as submitted was sufficient to decide the
issue being raised does not withstand the ruling in Teaching Our Posterity. The
record presented does not include the transcript of the August 27 hearing, the
first hearing, where it may be presumed that the Board heard evidence to
support the initial suspension, nor the January 28 hearing, the hearing where
the Board denied Economan’s motion to dismiss the proceedings because he
had allowed his license to expire. The trial court properly dismissed
Economan’s petition for judicial review. Because this issue is dispositive, we do
not address the other issues that Economan raises.
Affirmed.
Mathias, J., and Altice, J., concur.
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