Andrew Kearse, D.C. v. Iowa Board of Chiropractic ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0902
Filed June 5, 2019
ANDREW KEARSE, D.C.,
Plaintiff-Appellant,
vs.
IOWA BOARD OF CHIROPRACTIC,
Defendant-Appellee.
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Appeal from the Iowa District Court for Lee County, Mark E. Kruse, Judge.
Andrew Kearse appeals the district court’s dismissal of his application for
judicial review of a sanction imposed on him by the Iowa Board of Chiropractic.
AFFIRMED.
Curtis R. Dial of Law Office of Curtis Dial, Keokuk, for appellant.
Thomas J. Miller, Attorney General, and Tessa M. Register and Allison A.
Schmidt, Assistant Attorneys General, for appellee.
Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.
Several patients of Keokuk chiropractor Andrew Kearse complained that
Kearse touched them sexually during sessions. The Iowa Board of Chiropractic
found multiple acts of sexual misconduct and revoked Kearse’s chiropractor
license “for a minimum period of ten (10) years.” The district court affirmed the
agency decision.
Although Kearse denied some of the patients’ allegations, he does not
argue on appeal that the board’s detailed fact findings are unsupported by
substantial evidence. See Iowa Code § 17A.19(10)(f) (2015). Kearse simply
asserts “the sanction imposed was not warranted.” The board counters that it
possesses “wide discretion to impose discipline.” The board is correct.
Iowa Code section 151.9(3) authorizes revocation of a license to practice
as a chiropractor when the chiropractor “engag[es] in unethical conduct or practice
harmful or detrimental to the public.” See also id. § 147.55(3) (same); Iowa Admin.
Code r. 645-45.2(3) (same). Iowa Code section 147.55(9) authorizes revocation
for “[o]ther acts or offenses as specified by board rule.” Iowa Administrative Code
rule 645-45.2(28) states “unethical conduct may include . . . [i]mproper sexual
contact with, or making suggestive, lewd, lascivious or improper remarks or
advances to a patient, . . . regardless of the patient’s . . . consent.” Another rule
vests the board with discretion to consider the number and seriousness of
violations in addition to other factors in “determining the nature and severity of the
disciplinary sanction to be imposed.” Iowa Admin. Code r. 645-45.4. Because
statute and rule grant the board discretion to apply law to fact, we will reverse the
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board’s sanction only if it is “irrational, illogical, or wholly unjustifiable.” See Iowa
Code § 17A.19(10)(m).
At the evidentiary hearing before the board, Kearse admitted to sexual
touching without chiropractic purpose and admitted to engaging in sex acts with
patients. Kearse testified to being taught in school about “[e]thical boundaries,”
stated it was his responsibility to set those boundaries with patients, and agreed
there was no ethical way to engage in sexual relationships with patients. He
acknowledged his actions were “a disgrace” to his profession and said he was “not
justifying” them. In his words, “They were my choices and they were . . . very
disgraceful and poor choices.” He conceded his conduct was unprofessional,
unethical, and outside the scope of his practice as a chiropractor, and he agreed
he had to be held accountable.
We conclude the board acted well within its discretion in revoking Kearse’s
chiropractor license for at least ten years. The revocation decision was not an
irrational, illogical, or wholly unjustifiable application of law to fact.
AFFIRMED.