Mebane v. Board of Medical Examiners , 55 N.C. App. 455 ( 1982 )

CLARK, Judge.

In its motion to dismiss, defendant asserted that the complaint failed to state a claim upon which relief could be granted in that the action was against an official agency of the State of North Carolina and, therefore, under the doctrine of sovereign immunity, it could not be maintained. In effect the defendant’s motion to dismiss sets out two separate defenses: (1) failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6), and (2) the affirmative defense of sovereign immunity which is required to be asserted in the responsive pleading under Rule 12(b). Thompson v. Railroad, 248 N.C. 577, 104 S.E. 2d 181 (1958). The issue on appeal is whether the complaint on its face fails to state a claim upon which relief could be granted.

In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the allegations of the complaint must be presumed true. A claim should not be dismissed under Rule 12(b)(6) unless it appears that plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970).

In 1859 the General Assembly created the Board of Medical Examiners of the State of North Carolina “to properly regulate the practice of medicine and surgery . . . .” G.S. 90-2. Under Chapter 90 of the General Statutes the Board was given certain powers to enable it to carry out its regulatory duties. G.S. 90-13 provides that in its discretion the Board may issue a license to practice medicine without examination to an applicant who has a diploma from a medical school, a license issued to him by another state, and who has successfully completed one year of training after graduation. The last sentence of that statute reads as follows: “Such a license may be granted for such a period of time and upon such conditions as the Board may deem advisable.”

The Board issued plaintiff a series of three consecutive temporary licenses to practice medicine. Although G.S. 90-13 does not specifically refer to the issuance of temporary licenses, we find that the language of the statute is broad enough to grant authority to the Board to issue temporary licenses with limited duration “upon such conditions as it deems advisable.” It is clear from the face of the licenses issued to plaintiff that each one was temporary and expired on the dates shown on the documents. Plaintiff was fully aware that the licenses were temporary and that the issuance of a permanent license to practice medicine was conditioned upon a finding of competency based upon her passage of FLEX. When she failed to pass FLEX, the last temporary license expired and the Board refused to issue another one. We find nothing to support plaintiff’s claim that she is entitled to a permanent license to practice medicine in this State.

Under G.S. 90-14.2, a licensee is entitled to written notice and opportunity to be heard before the revocation or suspension of a license to practice medicine. Plaintiff argues that she was entitled to such a hearing. However, we find no statutory authority which would give plaintiff this right. She was never issued a permanent license and, therefore, she was not threatened with revocation or suspension of her license. The action taken by the Board was the denial of issuance of a permanent license to practice medicine to plaintiff. We, therefore, find that plaintiff has no statutory right to a hearing to contest the denial of a permanent license by the Board.

Based upon the foregoing, we hold that the plaintiff’s complaint fails to state a claim upon which relief could be granted in that the Board of Medical Examiners acted within the scope of its authority under Chapter 90 of the North Carolina General Statutes, and that plaintiff has no statutory right to a hearing to contest the Board’s decision.

The order dismissing the complaint is

Affirmed.

Judges WHICHARD and BECTON concur.