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Bureau of Professional Licensing v. Butler

Court of Appeals of Michigan

December 21, 2017

BUREAU OF PROFESSIONAL LICENSING, Petitioner-Appellee,
v.
KAREN LIND BUTLER, M.D., Respondent-Appellant.

         Board of Medicine Disciplinary Subcommittee LC No. 15-061678

          Before: Murphy, P.J., and M. J. Kelly and Swartzle, JJ.

          MURPHY, P.J.

         Respondent Karen Lind Butler, M.D., appeals as of right an order issued by the Michigan Board of Medicine Disciplinary Subcommittee (the subcommittee), which accepted and adopted the recommended findings of fact and conclusions of law set forth in a proposal for decision issued by a hearings examiner (HE) following an evidentiary hearing. Butler was previously reprimanded by the Wisconsin Medical Examining Board and failed to timely notify Michigan authorities of the reprimand. The HE and subcommittee concluded that Butler was in violation of MCL 333.16221(b)(x) ("[f]inal adverse administrative action by a licensure, registration, disciplinary, or certification board involving the holder of . . . a license . . . regulated by another state") and (f) (failure to notify department of disciplinary action taken by another state against licensee within 30 days of action).[1] The subcommittee fined Butler $500 for the violations. We affirm the determination that Butler violated MCL 333.16221(b)(x) and (f), but vacate the fine and remand for further proceedings under Mich. Admin Code, R 338.7005 (hereafter "Rule 5").

         Butler is a doctor licensed to practice medicine in nine states, including Michigan and Wisconsin. In 2012, Butler was employed as the Regional Medical Director for Advanced Correctional Healthcare, providing medical services for persons jailed in Wisconsin. Pursuant to a stipulation entered into by Butler in February 2015, the Wisconsin Medical Examining Board formally reprimanded her for a 2012 incident wherein an inmate was prescribed medicine for hypothyroidism when his lab results were consistent with hyperthyroidism, which error was initially the result of a miscommunication regarding the lab results by a nurse during a phone call to Butler, but which error continued even after Butler was later provided with the actual lab results. As reflected in the stipulated final decision and order, Butler "acknowledged that the written lab report support[ed] a diagnosis of hyperthyroidism and that she erred." More than 30 days later, by letter dated April 22, 2015, the Director of Human Resources for Advanced Correctional Healthcare informed the Michigan Board of Medicine of Butler's Wisconsin reprimand, apologizing for the delay, which was blamed on a miscommunication in the corporate office and not due to any fault or failure on Butler's part.

         In May 2015, the Michigan Department of Licensing and Regulatory Affairs (LARA), through the Acting Director of the Bureau of Health Care Services, filed an administrative complaint against Butler on the basis that there was a final adverse administrative action taken against Butler in Wisconsin, MCL 333.16221(b)(x), and that the action was not reported to LARA within 30 days, MCL 333.16221(f); MCL 333.16222(4). The crux of Butler's defense was that the Wisconsin reprimand was not based on any willful misconduct, that the prisoner patient suffered no adverse reaction to the prescribed medicine, that Butler implemented changes in jail protocols regarding the reporting of lab tests to help prevent future errors, and that, as to the 30-day notice failure, there was no willful wrongdoing on her part, given that she was led to reasonably believe that her employer or its counsel would provide the requisite notice in timely fashion. Following the evidentiary hearing, the HE concluded that the violations had been established by LARA by a preponderance of the evidence, concluding that there was no willful-intent element to the provisions in MCL 333.16221(b)(x) and (f). The HE issued a proposal for decision, recommending adoption of his findings of fact and conclusions of law, which recommendation was subsequently accepted by the subcommittee after Butler had filed exceptions to the proposal for decision. In the subcommittee's final order, it fined Butler $500 for the violations of MCL 333.16221(b)(x) and (f). She now appeals as of right.

         Rulings by disciplinary subcommittees are reviewed on appeal solely under Const 1963, art 6, § 28. Dep't of Community Health v Anderson, 299 Mich.App. 591, 597; 830 N.W.2d 814 (2013); Dep't of Community Health v Risch, 274 Mich.App. 365, 371; 733 N.W.2d 403 (2007). Const 1963, art 6, § 28, provides:

All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.

         A court must review the entire record, not just the portions that support an agency's findings, when assessing whether the agency's decision was supported by competent, material, and substantial evidence on the whole record. Risch, 274 Mich.App. at 372. "Substantial evidence" means evidence that a reasonable person would find acceptably sufficient to support a conclusion. Id. This may be substantially less than a preponderance of evidence, but does require more than a scintilla of evidence. Id. For purposes of Const 1963, art 6, § 28, a decision is not "authorized by law" when it is in violation of a statute or a constitutional provision, in excess of an agency's statutory authority or jurisdiction, made upon unlawful procedure that results in material prejudice, or when it is arbitrary and capricious. Northwestern Nat'l Cas Co v Comm'r of Ins, 231 Mich.App. 483, 488-489; 586 N.W.2d 563 (1998).

         MCL 333.16231 authorizes the issuance of a complaint against a licensee for an alleged violation of MCL 333.16221; here, Butler was alleged to have violated MCL 333.16221(b)(x) and (f). And MCL 333.16231a provides for a hearing on the complaint before an HE. At the hearing, the licensee "may be represented . . . by legal counsel, " and LARA "shall be represented . . . by an assistant attorney general[.]" MCL 333.16231a(4). The HE "shall determine if there are grounds for disciplinary action under section 16221 . . . ." MCL 333.16231a(2). The HE must "prepare recommended findings of fact and conclusions of law for transmittal to the appropriate disciplinary subcommittee." Id. "In imposing a penalty . . ., a disciplinary subcommittee shall review the recommended findings of fact and conclusions of law of the hearings examiner." MCL 333.16237(1). Under MCL 333.16237(3), "[i]n reviewing the recommended findings of fact and conclusions of law of the hearings examiner and the record of the hearing, a disciplinary subcommittee may request the hearings examiner to take additional testimony or evidence on a specific issue or may revise the recommended findings of fact and conclusions of law as determined necessary by the disciplinary subcommittee, or both." A disciplinary subcommittee is not permitted to conduct its own investigation or to take its own additional testimony or evidence. Id. MCL 333.16237(4) provides:

If a disciplinary subcommittee finds that a preponderance of the evidence supports the recommended findings of fact and conclusions of law of the hearings examiner indicating that grounds exist for disciplinary action, the disciplinary subcommittee shall impose an appropriate sanction . . . . If the disciplinary subcommittee finds that a preponderance of the evidence does not support the findings of fact and conclusions of law of the hearings examiner indicating that grounds exist for disciplinary action, the disciplinary subcommittee shall dismiss the complaint. A disciplinary subcommittee shall report final action taken by it in writing to the appropriate board or task force. [Emphasis added.]

         When a disciplinary subcommittee finds the existence of one or more of the grounds set forth in MCL 333.16221, the subcommittee "shall impose" a sanction. MCL 333.16226(1) (emphasis added). And for a violation of MCL 333.16221(b)(x), the available sanctions include "[p]robation, limitation, denial, suspension, revocation, permanent revocation, restitution, or fine." MCL 333.16226(1). For a violation of MCL 333.16221(f), the available sanctions are "[r]eprimand, denial, limitation, probation, or fine." Finally, MCL 333.16226(2) provides:

Determination of sanctions for violations under this section shall be made by a disciplinary subcommittee. If, during judicial review, the court of appeals determines that a final decision or order of a disciplinary subcommittee prejudices substantial rights of the petitioner for 1 or more of the grounds listed in section 106 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.306, and holds that the final decision or order is unlawful and is to be set aside, the court shall state on the record the reasons for the holding and may remand the case to the disciplinary subcommittee for further consideration.

         Here, Butler does not present a challenge to the findings that she violated MCL 333.16221(b)(x) and (f). Indeed, there can be no real dispute that the Wisconsin reprimand constituted a final adverse administrative action taken by another state against Butler's license, MCL 333.16221(b)(x), and that Butler failed to notify LARA or the Michigan Board of Medicine of the reprimand within 30 days, MCL 333.16221(f) and MCL ...


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