Mark B. Irland, M.D. v. Iowa Board of Medicine ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0353
Filed March 6, 2019
MARK B. IRLAND, M.D.,
Plaintiff-Appellant,
vs.
IOWA BOARD OF MEDICINE,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,
Judge.
Mark Irland, M.D., appeals from the dismissal of his petition for judicial
review. AFFIRMED.
David L. Brown and Tyler R. Smith of Hansen, McClintock & Riley, Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Jordan G. Esbrook, Assistant
Attorney General, for appellee.
Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
Gamble, S.J., takes no part.
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DANILSON, Senior Judge.
Mark Irland, M.D., appeals from the dismissal of his petition for judicial
review, contending the district court erred in concluding it was without authority to
review the Confidential Letter of Warning issued to him by the Iowa Board of
Medicine. Finding no error, we affirm.
I. Background Facts and Proceedings.
Irland received a “Confidential Letter of Warning” from the Board indicating
its “serious concerns” with respect to his treatment of a patient. After detailing its
concerns regarding such treatment and noting the revocation of Irland’s clinical
privileges at a particular hospital, the Board’s letter stated, in pertinent part:
The Board advises that you carefully review your treatment of
[the patient] and take appropriate steps to avoid similar concerns in
the future. The Board also advises that you submit a paper to the
Board describing what you have learned from this matter. Please
submit the paper to [the Board’s legal director, at a specified address]
within sixty (60) days . . . .
The Board also noted that you are not practicing medicine at
this time. Therefore, the Board has chosen not to initiate further
action in this matter at this time. However, the Board advises that
you provide it written notice at least sixty (60) days prior to returning
to the practice of medicine. If you choose to return to the practice of
medicine, the Board will take appropriate action, including but not
limited to, issuing an order requiring you to complete a
comprehensive clinical competency evaluation, to ensure that you
are able to practice medicine with reasonable skill and safety. . . .
Pursuant to Iowa Code chapter 272C, this CONFIDENTIAL
LETTER OF WARNING does not constitute a formal disciplinary
action, nor is it a public record. It is a private communication between
you and the Board . . . .
This CONFIDENTIAL LETTER OF WARNING concludes the
Board’s investigation of this case. The Board reserves the right to
review and reconsider this matter should it be deemed appropriate.
Irland filed a petition for judicial review of the Board’s letter of warning. The
Board filed a motion to dismiss pursuant to Iowa Code section 272C.3(1)(d) (2017),
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which provides: “Notwithstanding the provisions of [Iowa Code chapter] 17A, a
determination by a licensing board . . . that an investigation should be closed
without initiating a disciplinary proceeding is not subject to judicial review pursuant
to section 17A.19(4).”
The district court concluded:
Pursuant to Iowa Code section 272C.3(1)(d), the Confidential
Letter of Warning issued by the Board to Dr. Irland is not subject to
judicial review. The advisory and warning language contained in the
Confidential Letter of Warning are not disciplinary sanctions and do
not transform the Confidential Letter of Warning into a final agency
action that is subject to judicial review under Iowa Code section
17A.19.
Further, the Confidential Letter of Warning is not a preliminary,
procedural, or intermediate agency action that is immediately
reviewable under Iowa Code section 17A.19(1). If Dr. Irland resumes
his medical practice and if, as the Board warns in the letter, the Board
issues an order requiring him to complete a comprehensive clinical
evaluation, to ensure he is able to practice medicine with reasonable
skill and safety, Dr. Irland may exhaust administrative remedies
within the Board at that time. If a disciplinary proceeding is initiated
by the Board against Dr. Irland, judicial review of a final agency
action would provide an adequate remedy. See Iowa Code
[§] 17A.19(1). However, since none of that has happened at this
stage of the proceeding, judicial review is premature.
All we have at this stage of the process is a Confidential Letter
of Warning which by statute is not subject to judicial review. The
court lacks authority to hear this particular case at this particular time.
See Alliant Energy-Interstate Power and Light Co. v. Duckett, 732
N.W.2d 869, 874-75 (Iowa 2007).
Irland appeals.
II. Scope and Standard of Review.
We review the district court’s ruling on a motion to dismiss for the correction
of errors at law. Strickland v. Iowa Bd. of Med., 764 N.W.2d 559, 561 (Iowa Ct.
App. 2009). We apply the standards found in Iowa Code chapter 17A to determine
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whether our conclusions are the same as those made by the district court. Doe v.
Iowa Bd. of Med. Exam’rs, 733 N.W.2d 705, 707 (Iowa 2007).
III. Discussion.
Pursuant to Iowa Code section 272C.3, the Iowa Board of Medicine is
authorized to investigate complaints against licensees and issue licensee
discipline. Under the board’s rules governing its investigations, the board is to
open a complaint file upon receipt of “appropriate information.” Iowa Admin. Code
r. 653-24.2(1). If the board determines it has jurisdiction of the complaint file, the
complaint is sent to a complaint review committee. Id. r. 653-24.2(1)(a). The
complaint review committee reviews the complaint and is authorized to take one
of the following actions: (1) close the complaint file for specified reasons, (2)
recommend the board’s screening committee close the file without investigation;
(3) “[r]equest an investigation by seeking a letter of explanation from the physician,
medical records, or both”; or (4) request a “full investigation.” Id. r. 653-24.2(2)(b).
Guidelines for the complaint review committee are set out in rule 653-24.2(2)(c).
The board’s screening committee reviews the recommendation of the
complaint review committee and takes one of four actions: (1) recommend the
board close the complaint file without investigation; (2) request an investigation;
(3) upon review of the materials received from its requests from the physician or
medical records, recommend the investigative file be closed, “with or without
issuing an informal letter”; or (4) request a full investigation for board review. Id. r.
653-24.2(3).
Investigations are governed by rule 653-24.2(5).
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After an investigation, the board reviews the investigation record, discusses
the case, and takes one of several actions:
(1) Close the investigative file without action. The board shall
notify the complainant and the licensee of the decision by letter. The
board may reconsider and reopen a closed complaint or investigative
file at a later date should it be deemed appropriate.
(2) Request further investigation, including peer review.
(3) Meet with the licensee. The board or the licensee may
request that the licensee appear before the board to discuss a
pending investigation. The board has discretion on whether to grant
a licensee’s request for an appearance. . . .
(4) Issue an informal letter of warning or education. If the
board concludes that there is not probable cause to file disciplinary
charges, the board may issue the licensee an informal letter of
warning or education. A letter of warning or education is an informal
communication between the board and the licensee and is not formal
disciplinary action or a public document.
(5) File a statement of charges. If the board determines that
there is probable cause for taking formal disciplinary action against
a licensee, the board shall file a statement of charges, thereby
commencing a contested case proceeding.
Id. r. 653-24.2(5)(e).
Here, the Board contends it issued a letter of warning as provided in rule
653-24.2(5)(e)(4). Irland acknowledges a letter was issued but contends it actually
imposed sanctions.
Judicial review under chapter 17A is the “exclusive means” by which an
aggrieved party may seek review of an agency action “[e]xcept as expressly
provided otherwise by another statute referring to this chapter by name.” Iowa
Code § 17A.19 (emphasis added).
Section 272C.3(1)(d) refers to chapter 17A by name and expressly provides
that “a determination by a licensing board that an investigation is not warranted or
that an investigation should be closed without initiating a disciplinary proceeding
is not subject to judicial review pursuant to section 17A.19.” Thus, section
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272C.3(1)(d) unambiguously prohibits judicial review of the Board’s determination
“that an investigation should be closed without initiating a disciplinary proceeding.”
The Board’s letter states: “[T]he Board has chosen not to initiate further action in
this matter at this time.”
There is no dispute the Board may issue “an informal letter of warning” when
there has been no disciplinary action taken and, if no such action is taken, the
physician may not seek judicial review. See id. But Irland argues the letter issued
here did impose disciplinary action. He asserts the letter imposed “restriction[s]
on his license” by requiring him to submit a “paper” explaining his lessons learned
and putting conditions on any potential return to practice, without a finding of
probable cause. Irland argues that the Board’s letter “serves as a letter of
disciplinary sanctions without an accompanying statement of charges” and without
affording him the opportunity to contest any charges.
Irland is not currently practicing medicine in Iowa, and the letter states,
“[t]herefore the Board has chosen not to initiate further action in this matter at this
time.” The letter also addresses or imposes three actions. First, the Board
“advise[d] that [Irland] submit a paper to the Board describing what [he] ha[s]
learned from this matter.” The letter says “please submit the paper . . . within sixty
(60) days of the date of this letter.”
Secondly, the letter “advises” Irland to provide the Board “written notice at
least sixty (60) days prior to returning to the practice of medicine.”
Third, the letter states that if Irland returns to the practice of medicine, the
Board “will take appropriate action.” However, the letter did not stop with this
warning but proceeded to say the action that would be taken included, but was not
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limited to, “issuing an order requiring you to complete a comprehensive clinical
competency evaluation.”
Nothing the Board “advised” has resulted in Board action. See Iowa Admin.
Code r. 653-24.2(5)(e)(5) (“If the board determines that there is probable cause for
taking formal disciplinary action against a licencee, the board shall file a statement
of charges, thereby commencing a contested case proceeding.”); see also Iowa
Code §§ 17A.12 (contested case).
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.”
Further, the board is required to report sanctions and discipline to the national
databank. See Iowa Admin. Code r. 653-25.32 (“The board shall report final
decisions to the appropriate organizations, including but not limited to the National
Practitioner Data Bank . . . .”).
We acknowledge the letter of warning is colored with advisories that have
the appearance of sanctions. The identification of specific dates when the Board
expects actions to be completed, as well as identifying a specific sanction—a
comprehensive clinical competency evaluation that will occur if Irland returns to
the practice of medicine, have the markings of sanctions. However, the paper and
the sixty-day notice before practicing medicine are not mandatory, rather the action
is simply advised. Further, there is no identifiable repercussion if Irland does not
comply with the actions that are “advised.”
With respect to the evaluation, we observe the Board is authorized to order
a “clinical competency evaluation” “upon a showing of probable cause that the
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licensee is professionally incompetent.” Id. r. 653-24.4. If an evaluation is ordered,
the licensee is entitled to object and is entitled to a contested hearing. Id. r. 653-
24.4(3). At oral argument, the Board acknowledged the letter sent to Irland was
“a hybrid” because it did not inform him of what the Board may do in the future but
what it will do, essentially freezing Irland in his current status of not practicing
medicine in the State of Iowa. (“[T]he Board will take appropriate action, including
. . . .”) But, by issuance of this hybrid letter of warning, the Board has effectively
concluded there was no probable cause to file disciplinary charges. Id. r. 653-
24.2(5)(e). In light of these rules, we conclude the letter’s reference to the
competency evaluation is a threat without teeth because the Board may not enter
such an order without reconsideration of its prior decision, making a probable-
cause determination, and affording due process to Irland, including a contested-
case hearing. Thus, we do not view the unconventional letter as a sanction or a
form of disciplinary action.
Here, because no action or sanctions have actually been imposed upon
Irland, he has not been adversely affected by any final agency action. Thus, Irland
has suffered no “specific and injurious effect” on his legal interest such that he
would be considered an “aggrieved party” for purposes of chapter 17A. See
Chrischilles v. Arnolds Park Zoning Bd. of Adjustment, 505 N.W.2d 491, 493-94
(Iowa 1993) (requiring a person to provide evidence of “(1) a specific personal and
legal interest in the subject matter of the agency decision and (2) a specific and
injurious effect on this interest by the decision”). Consequently, the Board’s
determination that the investigation “be closed without initiating a disciplinary
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proceeding is not subject to judicial review” and no relief may be granted to Irland
in these proceedings. Iowa Code § 272C.3(1)(d).
IV. Conclusion.
Because nothing the Board “advised” has resulted in Board action, Irland
has not been adversely affected by a final agency action. The district court did not
err in concluding it was without authority to review the Confidential Letter of
Warning. We affirm.
AFFIRMED.