Appeal from Shawnee District Court; CHARLES E. ANDREWS, JR., judge.
SYLLABUS BY THE COURT 1. K.S.A. 2011 Supp. 65-2838(a) grants the Kansas State Board of Healing Arts jurisdiction to implement a disciplinary proceeding against a person who was a licensee of the Board practicing under the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., at the time of the alleged misconduct. Jurisdiction does not depend on the status of a person's license on the date a disciplinary proceeding is filed. 2. Where an appellant fails to brief an issue, that issue is waived or abandoned. 3. The burden is on a party to designate a record sufficient to present its facts and arguments to the appellate courts and to establish its claims. Under Supreme Court Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. 38), when facts are necessary to an argument, the record must supply those facts, and a party relying on those facts must provide an appellate court with a specific citation to the point in the record where the facts can be verified. The court may presume that a factual statement made without a reference to volume and page number has no support. 4. A failure to support an argument with pertinent authority or to show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief an issue. Therefore, an argument that is not supported with pertinent authority is deemed waived and abandoned. Further, a point raised incidentally in a brief and not argued therein is also deemed abandoned. 5. An amendment to K.S.A. 77-621(c)(7) found in L. 2009, ch. 109, sec. 28, that became effective on July 1, 2009, does not apply retroactively, meaning the amendment only applies in those cases where an agency's action became final after July 1, 2009. 6. If an agency action became final before July 1, 2009, an appellate court applying K.S.A. 77-621(c)(7) determines if an agency's findings of fact are supported by evidence that is substantial when viewed in light of the record as a whole. Under this standard, substantial competent evidence is that which possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. In examining the record as a whole for this substantial evidence, an appellate court views all the evidence in a light most favorable to the prevailing party, does not reweigh competing evidence or assess the credibility of witnesses, must accept all evidence and inferences that support or tend to support the findings as true, and must disregard all conflicting evidence.
The opinion of the court was delivered by
In this appeal, Dr. Amir Friedman asks us to reverse an order of the Kansas State Board of Healing Arts (Board) in which the Board revoked his license to practice medicine and surgery in the state of Kansas. Friedman presents several issues, including a threshold question of whether the Board had jurisdiction to initiate a revocation proceeding after Friedman's license expired. On this threshold issue, we hold the Board had jurisdiction to revoke Friedman's license to practice medicine and surgery because Friedman was practicing medicine under the authority of a license issued by the Board when he committed the misconduct at issue in the revocation proceeding. We also reject Friedman's other arguments, concluding he effectively abandoned a due process argument by failing to adequately brief it and he failed to establish a lack of substantial evidence to support the administrative hearing officer's initial order and the Board's final order. We, therefore, affirm the Board's order and the district court's decision upholding that order.
In 1999, the Board issued a medical license to Friedman. For several years, Friedman paid the fees for the annual renewal of his license. Then, in March 2006, Friedman requested that the Board change his license designation to inactive status, and he did not pay the annual registration fee that was due by June 30, 2006.
On July 31, 2006, the Board filed a formal disciplinary action against Friedman that resulted in an order of the Board revoking his license. In its petition, the Board alleged Friedman was a licensee of the Board who committed acts in violation of K.S.A. 65-2836 and K.S.A. 65-2837 "while engaged in a regulated profession as a medical doctor in the State of Kansas pursuant to K.S.A. 65-2801 et seq."
Friedman responded to the Board's petition by seeking dismissal of the action for lack of subject matter jurisdiction. In his motion to dismiss, Friedman argued the Board could not initiate the action against him because his license was expired on the date the petition was filed.
An administrative hearing officer, who is referred to throughout the record as the presiding officer, denied Friedman's motion. Friedman appealed that decision to the district court, and the district court dismissed the appeal because Friedman had failed to exhaust his administrative remedies. The district court's decision was affirmed by this court on appeal in Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 755, 199 P.3d 781 (2009) (Friedman I).
While that appeal was pending, the administrative action continued. In an amended petition, the Board alleged five counts of misconduct that arose from Friedman's care of patients. These allegations included claims that Friedman falsified medical records. In a sixth count, the Board alleged Friedman surrendered hospital medical privileges while under investigation. After discovery, the presiding officer conducted an evidentiary hearing regarding the Board's allegations. Subsequently, the presiding officer issued an order in which he found that the Board had established the alleged violations and that Friedman's license should be revoked.
Friedman then petitioned the Board for review of the presiding officer's initial order, and the Board granted the request. After a date for the review hearing was set, Friedman requested a continuance because he did not have a physician who could provide coverage for his patients. The Board denied the motion to continue but did allow Friedman to participate by telephone. Friedman alleges that he was called away from the hearing before he presented his oral argument and "the Board agreed that it would reschedule the hearing to provide for oral argument yet never did so."
On October 14, 2008, the Board issued a final order in which it stated in part that based on the "agency record before it, and after hearing the arguments of the respondent pro se as well as counsel for the Board, the Board adopts the findings of fact, conclusions of law and order as stated in the Initial Order." The Board agreed that Friedman's license to practice medicine should be revoked.
Friedman filed a petition in district court seeking judicial review of the Board's order. Following proceedings in district court, the court affirmed the Board's order, and Friedman appealed to the Court of Appeals. His appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
As a result of Friedman's appeal, we will consider the merits of the issue not reached in Friedman I: Did the Board have jurisdiction to discipline Friedman given that he was not licensed in Kansas at the time the disciplinary petition was filed? Next, we consider another overarching issue: Did the Board violate Friedman's right to due process? Finally, we will discuss the evidence presented regarding each count of the disciplinary petition, the presiding officer's and the Board's findings of fact and conclusions of law regarding those allegations, and the district court's analysis of the Board's order as we discuss Friedman's arguments that there was not substantial evidence to support the presiding officer's and the Board's orders.
The first of these issues is whether the Board had jurisdiction to initiate the current disciplinary proceeding against Friedman on July 31, 2006. Friedman contends it did not because his license expired on June 30, 2006. The Board acknowledges that Friedman's license was not active at the time the disciplinary petition was filed but asserts it still had jurisdiction to revoke Friedman's license. The Board presents several arguments in support of its position, including the one on which we decide the issue, which is that the Board's jurisdiction does not depend on the status of Friedman's license on the date the disciplinary petition was filed but rather on the date or dates of the alleged misconduct.
The parties' arguments on this issue are phrased in terms of subject matter jurisdiction. Our authority to consider whether the Board had subject matter jurisdiction derives from a reading of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. (KJRA), and the Kansas Healing Arts Act, K.S.A. 65-2801 et seq. (Act). The KJRA grants a Kansas court the authority to provide relief from an administrative agency's action if the agency "acted beyond the jurisdiction conferred by any provision of law." K.S.A. 77-621(c)(2). This provision applies here because the Act-the law that Friedman is alleged to have violated and the Board enforced-specifically provides that "[j]udicial review and civil enforcement of any agency action under [the Act] shall be in accordance with the [KJRA]." K.S.A. 2011 Supp. 65-2851a(b); see Ryser v. State, 295 Kan. 452, 458, 284 P.3d 337 (2012) (holding the Board's actions under the Act are subject to the KJRA). Further, the Board's order revoking Friedman's license is an agency action falling under K.S.A. 65-2812 (charging the Board with administration of the Act). See K.S.A. 77-602(a) ("'agency' means a state agency"); K.S.A. 77-602(e) (defining "order" to be an "agency action"); K.S.A. 77-602(k) (defining "state agency").
Applying the scope of review provision of the KJRA to the question of whether an agency has exceeded its jurisdiction-in other words, its statutory authority-requires interpretation of the statutes establishing and empowering the agency, which in this case is the Board. Ryser, 295 Kan. at 464. The Board's jurisdiction is defined by the Act, and this court interprets the Act de novo just as it does all other statutes. Ryser, 295 Kan. at 457, 464; Friedman I, 287 Kan. at 751-52.
In Ryser, we recently considered whether the Act granted the Board jurisdiction to investigate a Kansas licensed physician's conduct even though the conduct occurred in Missouri. Because the Act did not explicitly answer the question, we applied rules of statutory interpretation to divine the legislative intent. Ultimately, we answered the question by interpreting K.S.A. 2011 Supp. 65-2838(a) and K.S.A. 2011 Supp. 65-2837(e) and determining that the physician was a "licensee" as defined in the Act who was practicing under the Act when the misconduct occurred; hence, we held the Board had jurisdiction to take disciplinary action. Ryser, 295 Kan. at 465-68.
While Ryser provides us guidance in answering the question raised by Friedman, it does not directly answer the question. Nor does the Act; there is no provision that explicitly addresses whether the Board's jurisdiction depends on the status of a license when a disciplinary action is filed. Consequently, as we did in Ryser, we must apply rules of statutory construction to discern the answer from what the Act does say. In explaining those rules, we stated:
"We first attempt to ascertain legislative intent by reading the plain language of the statutes and giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. But when the statute's language or text is unclear or ambiguous, we 'employ canons of construction, legislative history, or other background considerations to divine the legislature's intent and construe the statute accordingly. [Citation omitted.]' Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 564-65, 276 P.3d 188 (2012)." Ryser, 295 Kan. at 458.
Also in Ryser, because there was an ambiguity that arose from the lack of an explicit answer in the statute, we examined the purpose and policy of the Act and recognized that the State of Kansas has broad authority to regulate the practice of medicine, the Act implements that authority, and the Board administers the Act. Ryser, 295 Kan. at 464. In the Act, the Kansas Legislature explained that the ultimate purpose is "that the public shall be properly protected against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional conduct by persons licensed to practice under this act." K.S.A. 65-2801.
Given this purpose, it is significant that other states, as does Kansas, allow endorsement or reciprocal licensing of health care providers. The Kansas statute, for example, provides that an applicant is "entitled" to an "endorsement" license upon presenting proof that the applicant is duly licensed in another state following passage of an examination that was "at least equal in quality to the examination required in this state" and that the license "has never been limited, suspended or revoked [or] that the licensee has never been censured or had other disciplinary action taken." K.S.A. 65-2833. Hence, a Kansas licensee can obtain a license in another state and, once that license is obtained, allow the Kansas license to expire. Then, if Friedman's interpretation of the Act is correct, the former Kansas licensee could use the fact that the license had been allowed to expire as a shield from disciplinary action and, in doing so, avoid the consequences of misconduct committed before the Kansas license expired. Such an interpretation would be contrary to the purpose of the Act. Friedman disputes the application of this public policy to his case because he asserts there is no showing in the record that he attempted to circumvent the policy. Such a showing is not necessary because, regardless of intent, the purpose of the Act would be to protect the public by disciplining a licensee for misconduct.
Even with this stated policy, however, there must be a provision in the statute that would allow the Board to assert its jurisdiction over Friedman. That provision is K.S.A. 2011 Supp. 65-2838(a), which provides that the Board "shall have jurisdiction of proceedings to take disciplinary action authorized by K.S.A. 65-2836 and amendments thereto against any licensee practicing under [the Act]." The phrase that is significant to the issue before us is "licensee practicing" under the Act. The other term "licensee" is defined in the Act to include "persons issued a license, permit or special permit pursuant to [the Act]." K.S.A. 2011 Supp. 65-2837(e). This definition is worded in the past tense-persons issued a license-rather than present tense-persons who have a license. Thus, the focus is not on the status of the licensee at the time of the disciplinary proceeding. Additionally, the term "practicing" in K.S.A. 2011 Supp. 65-2838(a) makes the critical time period the point at which the misconduct occurs.
In light of that language and the Board's power to protect the public, we hold K.S.A. 2011 Supp. 65-2838(a) grants the Board jurisdiction to implement a disciplinary proceeding if the person was a licensee of the Board practicing under the Act at the time of the alleged misconduct. Jurisdiction does not depend on the status of a person's license on the date a disciplinary proceeding is filed.
Applying this holding to this case, it is undisputed that (1) the Board had issued a license to Friedman pursuant to the Act and (2) the acts that gave rise to the disciplinary proceeding in this case occurred while Friedman was a licensee practicing under the Act. Because these two facts are undisputed, we conclude the Board had jurisdiction to initiate the disciplinary proceeding against Friedman and to revoke his license to practice medicine.
The other overarching issue stated by Friedman in his appellate brief is whether the "Board violated Petitioner's due process rights by denying his opportunity to present his case in its Review Hearing." Even though Friedman stated this issue at the beginning of his brief, he did not separately argue the issue in the body of his brief.
In the Board's brief, it asserts that Friedman waived this issue by not presenting argument or caselaw support for his contention. The Board cites, among other authorities, McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002), in which this court held that "'[w]here the appellant fails to brief an issue, that issue is waived or abandoned.' [Citations omitted.]" Friedman responds to this argument in his reply brief by simply asserting: "Under K.S.A. 77-527(e), Appellant had a due process right to present oral argument to the Board's hearing panel of experts but was not permitted to do so." He asserts that he preserved this issue by stating that he had been called away before he could present his argument, the Board agreed to schedule a time for his argument, and yet the Board issued its order without giving him the opportunity to complete the hearing.
There are several problems with Friedman's argument. First, the accuracy of Friedman's factual contention is disputed as reflected by the Board's final order, which indicates the Board heard "the arguments of the respondent pro se."
Second, Friedman has not cited any factual support for his contention that the Board agreed to schedule subsequent arguments. He merely cites to the point in the record where he made the same assertion before the district court. His assertion caused the district court to consider the argument, but the court rejected the claim and concluded Friedman "was provided more than a meaningful opportunity to be heard throughout the agency proceedings." Our rules of procedure are not as forgiving as was the district judge when he accepted Friedman's assertion. "'It is well-settled that the burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims.' [Citation omitted.]" Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588 (2009). When facts are necessary to an argument, the record must supply those facts and a party relying on those facts must provide an appellate court with a specific citation to the point in the record where the fact can be verified. See Supreme Court Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. 39) (appellant's brief must include concise statement of facts material to disposition of appeal and "facts included in the statement must be keyed to the record on appeal by volume and page number;" the appellant court "may presume that a factual statement made without a reference to volume and page number has no support"). Friedman has not met this burden.
Third, even if we were to overlook this factual omission because the district court considered the issue, Friedman fails to present any authority establishing a due process right to present an oral argument. The only citation he provides is K.S.A. 77-527, which outlines the procedure to be followed when an agency reviews an initial order. The portion of that statute regarding oral argument, K.S.A. 77-527(e), states that the agency head "may afford each party an opportunity to present oral argument." (Emphasis added.) This court has stated that the word "may" is usually "'employed to imply permissive, optional or discretional, and not mandatory action or conduct.' [Citations omitted.]" State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 642, 822 P.2d 1033 (1991). Friedman offers no appellate argument regarding why a different meaning should be given the word in this context or, more generally, why the provision grants him a due process right to present an oral argument.
Finally, even though Friedman cited several other due process concerns in his arguments to the district court and has sprinkled his appellate arguments with references to evidentiary and discovery rulings that resulted in the exclusion of evidence proffered by Friedman, he has not developed those arguments before us. For example, he does not explain why the rulings were erroneous or why the rulings resulted in a due process violation. A failure to support an argument with pertinent authority or to show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. Therefore, an argument that is not supported with pertinent authority is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Further, an argument raised incidentally in a brief and not argued therein is also deemed abandoned. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012).
Friedman has failed to support his due process argument with a factual record or legal authority and, as a result, has effectively abandoned this due process issue on appeal. Consequently, his due process argument will not be further considered.
Finally, Friedman identifies two issues that address the nature of the evidence on which the presiding officer and the Board relied. He contends: (1) "The Presiding Officer's order was biased because it was not based on material and reliable evidence," and (2) "The Board's order was not supported by substantial competent evidence in light of the record as a whole." After listing these as separate issues, Friedman discusses the two issues together.
In doing so, Friedman cites to only one scope of review provision provided for in the KJRA, K.S.A. 77-621(c)(7). This provision allows a court to grant relief if it is established that the agency's action "is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole." Friedman's issue relating to the Board's order is phrased in terms that echo this standard of review. As to the other issue regarding the presiding officer's order, Friedman uses the terms "biased" and "material and reliable evidence"- terms that do not echo any of the eight scope of review provisions in K.S.A. 77-621(c). Because of Friedman's failure to identify the scope of review or separately brief the issue, the Board argues that Friedman has also abandoned the issue regarding the presiding officer's order. In his reply brief, Friedman asserts he has argued the issue by discussing the evidence of the case. He further notes:
"An agency's action is 'arbitrary and capricious' if it is unreasonable or 'without foundation in fact.' Pork Motel, Corp. v. Kansas Dept. of Health and Environment, 234 Kan. 374, 673 P.2d 1126 (1983). . . . [T]he hearing officer failed to apply the law; relied on contradictory evidence; misrepresented Appellant's letters; capriciously discredited expert witnesses; and disregarded the fact that the Board withheld essential medical records from its own expert witness in order to bolster its own case."
Even with this additional argument, Friedman does not specify which of the scope of review provisions of K.S.A. 77-621(c) he asserts as a basis for appellate review. As we have previously noted,
"Such specification is important because a court reviewing an administrative agency's action may grant relief only if it determines one or more of those provisions is violated.
K.S.A. 77-621(c); cf. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 406-07, 204 P.3d 562 (2009) ('it is a better practice for the language in the petition for judicial review to mirror the statutory basis for the specific relief requested.'); Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 45, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002) ('specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought')." Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 697, 216 P.3d 170 (2009).
The lack of specification is particularly problematic in this case because Friedman's arguments could fall into multiple provisions of K.S.A. 77-621(c). Friedman's use of the phrase "arbitrary and capricious" in his reply brief appears to invoke K.S.A. 77-621(c)(8), which allows a court to grant relief if the agency action is "unreasonable, arbitrary or capricious." This court has recognized that this provision "can cover a number of things." Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 275, 75 P.3d 226 (2003) (Blue Cross). Sorting through the various possibilities, in Blue Cross we determined an argument that findings are arbitrary and capricious because they are unreasonable and without foundation in fact should be analyzed under the standard stated in K.S.A. 77-621(c)(7) because the gravamen of such an issue is whether the evidence is substantial. Blue Cross, 276 Kan. at 275. Similarly, in this case Friedman's arguments address the weight and credit to be given the evidence, which is essentially the same argument as would be brought under the substantial evidence standard of review in K.S.A. 77-621(c)(7). Plus, the Board adopted the presiding officer's findings, meaning the analysis of one order is an analysis of the other. Consequently, we will examine whether the findings of both the Board and the presiding officer are supported by evidence that is substantial when viewed in light of the record as a whole.
In citing to the substantial evidence standard in K.S.A. 77-621(c)(7), Friedman and the Board rely on a version of the statute that was adopted after the Board's final order revoking Friedman's license. At the time of the Board's final order in October 2008, K.S.A. 77-621(c)(7) required review of the agency's determination for evidence "that is substantial when viewed in light of the record as a whole." Utilizing this standard, an agency's decision is upheld if there is substantial evidence that supports the agency's finding. This is true even if the record contains evidence supporting contrary findings. Redd v. Kansas Truck Center, 291 Kan. 176, 183-84, 239 P.3d 66 (2010).
A different standard was adopted by the Kansas Legislature after the Board's order was filed in this case. L. 2009, ch. 109, sec. 28. Through these amendments, which were effective July 1, 2009, the KJRA requires a court to review all evidence supporting and contradicting the Board's findings, the administrative hearing officer's credibility determinations, and the agency's explanation of why the evidence supports its findings. Redd, 291 Kan. at 182.
Friedman seeks application of this new standard, particularly focusing on the requirement that we consider evidence contrary to the presiding officer's and the Board's findings. This new standard does not apply in this case, however, because we have held that the 2009 amendments do not apply retroactively. Rather, the amendments only apply in those cases where the agency's action became final after July 1, 2009, when the amendments took effect. Redd, 291 Kan. at 183. Therefore, Friedman's request for review of the Board's October 2008 order must be evaluated under the former statutory standard of whether a determination of fact is supported by evidence that is substantial when viewed in light of the record as a whole. This statutorily defined standard of review applies to both the district court's and this court's review of the Board's action. See Frick Farm Properties, 289 Kan. at 697. Friedman, as the party asserting the invalidity of the Board's order, bears the burden of establishing that the order is invalid. K.S.A. 77-621(a)(1) ("The burden of proving the invalidity of agency action is on the party asserting invalidity."); Frick Farm Properties, 289 Kan. at 704.
In past decisions, we have explained the substantial evidence standard of the version of K.S.A. 77-621(c)(7) that was in effect prior to July 1, 2009, by stating:
"Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. [Citation omitted.] An appellate court views all the evidence in a light most favorable to the prevailing party, and it does not reweigh competing evidence or assess the credibility of witnesses. [Citation omitted.] This court must accept all evidence and inferences that support or tend to support the findings as true, and this court must disregard all conflicting evidence. [Citations omitted.]" Frick Farm Properties, 289 Kan. at 709-10.
Contrary to this standard of review, Friedman essentially asks us to focus on the evidence that conflicts with the Board's findings rather than on the evidence that tends to support the findings. Further, he asks us to reweigh and discredit the Board's evidence even though we are prohibited from doing so under our standard of review. This is especially critical in this case because the presiding officer explicitly found much of the evidence on which Friedman relies, including large portions of Friedman's own statements, to lack credibility.
Applying our standard of review reveals substantial evidence to support the presiding officer's and the Board's findings, although the evidence supporting the Board's findings is disputed. This conclusion is more fully explained by a review of the evidence as to each of the six counts alleged in the amended disciplinary petition.
Count I relates to Friedman's care of an obstetrical patient, who we will refer to as Patient I. In the amended petition, the Board alleged that Friedman had a physician- patient relationship with Patient I and had provided patient care to her throughout her pregnancy. Patient I came to Coffeyville Regional Medical Center (CRMC) at approximately 2 a.m. on July 9, 2004, in active labor.
In the amended petition, the Board alleged that when Patient I came to the hospital Friedman was in Tulsa, Oklahoma, and had not provided CRMC with the name of a covering physician. The Board also alleged that Friedman arrived at CRMC after the baby was delivered, but Friedman's "subsequent documentation in Patient [I]'s CRMC medical record indicates that he was present for the delivery of Patient [I]'s baby, when in fact he ...