Parrish v. Kentucky Board of Medical Licensure

Citations: 145 S.W.3d 401; 2004 Ky. App. LEXIS 54; 2004 WL 406012Docket: 2001-CA-001995-MR

Court: Court of Appeals of Kentucky; March 5, 2004; Kentucky; State Appellate Court

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Cherlyn Parrish, M.D., a radiologist, is contesting the Jefferson Circuit Court's affirmation of the Kentucky Board of Medical Licensure's decision to revoke her medical license. The Board's complaint, filed on March 25, 1993, accuses Parrish of dishonorable, unethical, or unprofessional conduct in her treatment of Patients A through Q, alleging gross incompetence, negligence, and malpractice. Specific allegations include failure to adhere to acceptable medical practices, which could harm the public and damage the medical profession's reputation. 

The complaint led to a temporary suspension of Parrish's medical license, effective the same day. An emergency hearing was held on April 12, 1993, featuring testimony from both Parrish and the Board's expert witness, Dr. Orson P. Smith, regarding her handling of fluoroscopy in barium studies. Smith criticized Parrish for omitting fluoroscopy, which he deemed a standard part of care, while Parrish defended her actions by claiming fluoroscopy was often unnecessary and citing issues with the equipment at her hospital, though she provided no evidence for her claims.

The hearing officer concluded that Parrish's failure to perform fluoroscopy constituted gross negligence, as it increased the risk of missing serious medical conditions. Evidence showed that Parrish improperly skipped fluoroscopy in some cases and allowed unsupervised technicians to perform it. Additionally, discrepancies in her reports indicated that she falsely documented fluoroscopy procedures. Ultimately, on April 20, 1993, the hearing officer upheld the suspension, confirming that Parrish's practices posed a danger to patient health and safety. An amended complaint was filed on July 8, 1993, reiterating similar charges concerning Patients R through T.

Parrish is accused of several serious violations, including engaging in fraudulent billing practices, generating misleading radiological reports, forging recommendation letters, submitting deceptive information to Knox County regarding a recommendation from her husband, and obstructing a Board investigation by providing false information. A hearing held from December 1-3, 1994, allowed for the inclusion of evidence from a prior suspension hearing. The hearing officer found substantial evidence supporting most allegations but dismissed the claim regarding the letter from her husband. The officer concluded that there were sufficient grounds for disciplinary action against Parrish's medical license based on violations of Kentucky statutes KRS 311.595(9), 311.595(10), 311.597(3), and 311.597(4). On October 20, 1994, the Board affirmed these findings and revoked Parrish's medical license. The Board is empowered to regulate physician licensing and can impose suspensions or revocations for unethical conduct likely to deceive or harm the public. KRS 311.597 outlines various forms of dishonorable conduct, including gross incompetence and actions that damage the reputation of the medical profession. A court may only overturn the Board's actions if there is clear abuse of discretion, exceeds authority, or procedural

The statute reiterates the tripartite test for assessing arbitrariness in judicial reviews of administrative agency actions, established in *American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission*. This test evaluates whether the agency exceeded its statutory powers, followed proper procedures for due process, and if substantial evidence supports its decisions. Findings supported by substantial evidence are binding on courts, despite conflicting evidence, but statutory interpretation undergoes de novo review, meaning courts are not bound by the agency's interpretation.

In the appeal, Parrish claims the Board exceeded its jurisdiction by revoking her license based on allegations of forgery unrelated to the practice of medicine. She cites KRS 311.550, which defines medical practice strictly in terms of diagnosing and treating ailments. However, KRS 311.595(10) allows for license revocation for making false statements in documents related to medical practice. The statute's language suggests broader conduct is encompassed, and the Board found that the forged letters of recommendation aimed at enhancing Parrish's medical opportunities were indeed related to her profession. Consequently, these actions constituted unprofessional conduct, justifying the Board's jurisdiction in disciplining her.

Additionally, Parrish contends the Board lacks authority over her billing practices, claiming they fall outside the definition of medical practice and amount to anticompetitive behavior under the Sherman Antitrust Act. However, the Board's findings indicate that she engaged in deceptive billing practices, such as billing for unperformed services and duplicative examinations, which violate the standard of care in Kentucky and are grounds for discipline under KRS 311.595(9) and (10). Her antitrust claim is dismissed as unfounded since regulating fraudulent practices is not considered anticompetitive.

Parrish's argument that the Board's jurisdiction is overly limited contradicts the Medical Practices Act's intent. The Board acted appropriately in investigating her alleged fraudulent billing practices. Parrish contends that the Board lacks jurisdiction over her potential refusal to cooperate in its investigation, citing KRS 311.990(6) as a Class A misdemeanor. However, the Board found her obstruction of the investigation constituted unprofessional conduct under KRS 311.595(9) and KRS 311.597, allowing for disciplinary action irrespective of any criminal charge. She also claims her procedural due process rights were violated due to the nominal nature of her hearing; however, she received a temporary suspension hearing and a comprehensive three-day final hearing, with legal representation, witness testimony, and the chance to add to the record afterward, indicating her rights were adequately protected.

Parrish further argues that the Board improperly disciplined her for standards allegedly adopted without proper procedure, claiming the Board accepted the American College of Radiology (ACR) standard during the hearing. The Board did not formally adopt these standards but acknowledged them as evidence presented by an expert witness, Smith, who argued that Parrish’s practices fell short of the standard of care. The Board's use of the ACR standard was permissible and not the sole basis for the disciplinary action, which focused on Kentucky's standard of care. Additionally, Parrish challenges the burden of proof applied during the hearings and by the circuit court, asserting that they should have used a preponderance of evidence standard, in line with practices at the time of her hearings in 1993 and the eventual revocation of her license in 1994.

Parrish incorrectly conflates the administrative standard of proof with the circuit court's standard of review, despite the record demonstrating that both were appropriately applied. The findings of fact and conclusions of law indicate that the Board bears the burden of proof regarding the charges against the physician, although they do not specify the exact standard of proof. Parrish assumes the hearing officer used a lesser standard than "preponderance of the evidence," which is defined as evidence that is more convincing than opposing evidence. The findings explicitly weigh evidence for and against Parrish, revealing her testimony as less credible than that of other witnesses, including Dr. Smith, whose testimony was deemed credible. The hearing officer found Parrish's claims unconvincing, particularly regarding her refusal to provide information and the reliability of her expert witness, Dr. Eversole. This thorough evaluation aligns with the preponderance of the evidence standard, confirming that the appropriate standard was applied. 

Parrish disputes the circuit court's citation of the 1997 Urella case for the standard of review, arguing it was irrelevant due to the 1994 timeline of her administrative action. However, Urella simply reiterated the established substantial evidence standard for reviewing administrative findings and referenced prior cases predating it, confirming the circuit court's proper application of the standard. Additionally, Parrish challenges the Board's reliance on Dr. Smith's expert testimony, claiming he acted more as an investigator than an expert witness. She raises concerns about Smith's actions in examining hospital equipment and gathering information. However, Kentucky law allows experts to base their testimony on information from third parties as long as it is customary for their profession, undermining her argument about the legitimacy of Smith's testimony.

Smith's investigations aimed to provide a comprehensive understanding of Parrish's radiology practice, utilizing hearsay testimony from other personnel, which is permissible for expert witnesses. Parrish objected to Smith speaking to some, but not all, individuals, including herself, arguing this undermined Smith's credibility; however, such concerns pertain to the weight of the evidence rather than its admissibility, which is determined by the Board. Parrish's claims about Smith's expert testimony do not warrant an appeal. Additionally, Parrish contended that the Board's reliance on flawed evidence stemmed from not comparing her diagnoses with those of patients' regular physicians; yet, she failed to demonstrate that such comparisons would yield more favorable results for her. The Board's findings indicated systemic issues in her radiology practice, and Parrish did not prove that the lack of comparison compelled a different outcome. She also argued that the Board's revocation order contradicted the weight of the evidence, raising several objections to specific factual findings adopted by the Board. According to Kentucky regulations, parties must file exceptions to a hearing officer's findings within ten days prior to the final hearing, and failure to do so bars issues from being raised in judicial review. The Board asserted that Parrish did not submit exceptions to the hearing officer's findings, and no evidence of such submission exists in the administrative record. A document found in the circuit court lacks proper file stamps and does not confirm timely filing. Thus, Parrish did not preserve her objections for appellate review. Other points raised by Parrish are deemed without merit or unreviewable due to improper procedural conduct.

The Jefferson Circuit Court's opinion and order affirming the Kentucky Board of Medical Licensure's revocation of Dr. Cherlyn Parrish's medical license is upheld. The Board consists of two panels, each with distinct authority, and specific procedural rules prevent members of an inquiry panel from participating in the hearing panel for the same case. To maintain patient confidentiality, the Board designates patients with letters, although a "Patient Code List" correlating these letters with actual names exists in the administrative record.

The case involves a total of twenty patients, identified as A-T, despite the amended complaint only explicitly referring to patients R-T. The original complaint included patients A-Q, and due to implied consent, these patients are considered included in the amended complaint. The record indicates confusion regarding Parrish’s marital status and notes that there was no evidence she was aware of any undisclosed relationship concerning a letter's author.

A procedural error occurred when the hearing officer misapplied KRS 311.595(8) instead of KRS 311.595(9), which pertains to different grounds for discipline. KRS 311.595(8) deals with mental or physical disabilities posing a danger to patients, while no such allegations were made against Parrish. The consistent misreference of KRS 311.595(9) as 311.595(8) throughout the proceedings is acknowledged.

KRS 311.595(10) outlines that a physician can face disciplinary action for knowingly making or aiding in false statements related to their medical practice. The allegations against Parrish involve forgery of recommendation letters and the generation of misleading radiology reports. The court clarifies that references to KRS 311.595(8) and (9) in various legal documents actually pertain to KRS 311.595(9) and (10), respectively. Even if KRS 311.595(10) had not been tried by consent, there is sufficient evidence to support the Board’s decision to revoke Parrish’s license based on KRS 311.595(9). 

Parrish's billing practices were scrutinized, as she charged separately for a single x-ray that was part of a larger examination fee, essentially double-charging. Additionally, Parrish directed her billing clerk to provide false information regarding the availability of medical records and failed to disclose information about her past employers, despite her involvement with corporate filings and banking. The Board is not bound by strict evidentiary rules when gathering information for its decisions. Expert testimony indicated that Parrish misdiagnosed a significant number of MRI scans, further substantiating the claims against her.

Lee opined that Parrish's performance and interpretation of MRI examinations failed to meet the accepted standard of care for radiology and neuroradiology in Kentucky. The relevant regulation, KAR 9:081, has remained unchanged since its last revision on March 14, 1994, and is still in effect. The court noted that Parrish's brief nearly faced dismissal under CR 76.12(8)(a) due to noncompliance with CR 76.12(4)(c)iv. Although the court may overlook minor errors, it emphasized that it is not the judge's role to extract relevant information from poorly structured pleadings, citing a precedent (Massengale v. Lester). Ultimately, while the court refrained from striking Parrish's brief due to her status as a pro se appellant, it also declined to review over three days of untranscribed videotape testimony for supporting evidence for her appeal (Robbins v. Robbins).