An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-801
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN RE: PETITION OF JOSEPH JEMSEK,
JEMSEK M.D., LICENSE NO. 23386,
Petitioner,
Wake County
No. 12-CVS-9321
BEFORE THE NORTH CAROLINA
MEDICAL BOARD
Appeal by petitioner from order entered 18 January 2013 by
Judge Donald W. Stephens in Wake County Superior Court. Heard
in the Court of Appeals 20 November 2013.
Law Office of Matthew I. Van Horn, by Matthew I. Van Horn,
and Jacques G. Simon, pro hac vice, for petitioner-
appellant.
Elizabeth R. Suttles and Marcus Jimison for respondent-
appellee.
DAVIS, Judge.
Dr. Joseph Jemsek (“Dr. Jemsek”) appeals from the trial
court’s order dismissing his petition for judicial review of the
order of the North Carolina Medical Board (“the Board”) denying
his request for a declaratory ruling regarding a 2006
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disciplinary order against him. After careful review, we
affirm.
Factual Background
In June of 2006, the Board held a disciplinary hearing
concerning Dr. Jemsek’s treatment of ten patients who came to
him exhibiting symptoms of fatigue, achiness, and decreased
concentration. The Board determined that Dr. Jemsek diagnosed
each of these ten patients with Lyme disease “in a manner that
departed from acceptable and prevailing standards of medical
practice, including making a diagnosis with scant or no
supporting historical, physical, serological or other laboratory
evidence supporting [the] diagnosis of Lyme disease.” The Board
also concluded that Dr. Jemsek’s course of treatment — which
consisted of administering oral or intravenous antibiotics to
the patients over extended periods of time — departed from
acceptable and prevailing standards of practice in that there
was “an absence of any research or clinical evidence of
efficacy” for such treatments. The Board further found that Dr.
Jemsek had failed to adequately educate and inform his patients
that his methods of diagnosing and treating Lyme disease
deviated from recognized standards.
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By order dated 21 August 2006, the Board concluded that
these departures from acceptable and prevailing standards of
practice amounted to unprofessional conduct and constituted
grounds to suspend Dr. Jemsek’s medical license for 12 months.
In its order, however, the Board immediately stayed the
suspension of Dr. Jemsek’s license upon the following
conditions:
a. Dr. Jemsek shall develop an informed
consent form approved by the North
Carolina Board President.
b. If a patient’s diagnosis is not
supported by current Center for
Disease Control (“CDC”) criteria,
then the patient must have a
consultation or second opinion by a
North Carolina licensed infectious
disease physician approved by the
Board President before treatment.
c. Any treatment of Lyme Disease either
by oral or intravenous antibiotics
for greater than two months total
time must be included in a formal
research protocol with institutional
review board (“IRB”) supervision
approved by the Board President.
d. Any complications of treatment must
be addressed . . . immediately.
Dr. Jemsek did not appeal the 21 August 2006 order.
On 27 April 2012, Dr. Jemsek filed a petition with the
Board seeking a declaratory ruling that its 21 August 2006 order
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be declared “null and void.” The petition asserted that the
Board should issue such a ruling because the 21 August 2006
order (1) had expired on its own terms in 2007; (2) was moot
based on the theory that the conditions set forth in the order
had been fully complied with; (3) “was issued in excess of the
disciplinary subject matter jurisdiction and authority of the
Board conferred upon it by N.C. Gen. Stat. § 90-14(a)(6)”; (4)
bypassed the rulemaking process of the North Carolina
Administrative Procedure Act (“APA”); (5) used an erroneous
standard of care; (6) deserved to be vacated based upon the
recent scientific developments recognized in the medical
community for diagnosing and treating Lyme disease; and (7)
“impermissibly preclude[d] judicial appeal and review.”
On 29 May 2012, the Board issued an order denying Dr.
Jemsek’s request for a declaratory ruling. On 28 June 2012, Dr.
Jemsek filed a petition for judicial review of the Board’s
denial in Wake County Superior Court. The Board filed a motion
to dismiss and a motion to strike his petition on 6 August 2012.
On 9 January 2013, Dr. Jemsek’s petition for judicial review was
heard by the Honorable Donald W. Stephens. On 18 January 2013,
the trial court entered an order (1) ruling “as a matter of law
that the Medical Board did not commit error in denying the
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request for a declaratory ruling”; and (2) dismissing the
petition for judicial review with prejudice. Dr. Jemsek
appealed to this Court.
Analysis
“In reviewing a superior court order entered upon review of
an administrative agency decision, this Court has a two-fold
task: (1) determine whether the trial court exercised the
appropriate scope of review . . . ; [and] (2) decide whether the
court did so properly.” Cty. of Wake v. Dep’t of Env’t &
Natural Res., 155 N.C. App. 225, 233-34, 573 S.E.2d 572, 579
(2002) (citation and quotation marks omitted), disc. review
denied, 357 N.C. 62, 579 S.E.2d 386 (2003).
The agency decision before the trial court in the present
case was the Board’s denial of Dr. Jemsek’s request for a
declaratory ruling pursuant to N.C. Gen. Stat. § 150B-4. N.C.
Gen. Stat. § 150B-4 provides, in pertinent part, that
[o]n request of a person aggrieved, an
agency shall issue a declaratory ruling as
to the validity of a rule or as to the
applicability to a given state of facts of a
statute administered by the agency or of a
rule or order of the agency. Upon request,
an agency shall also issue a declaratory
ruling to resolve a conflict or
inconsistency within the agency regarding an
interpretation of the law or a rule adopted
by the agency. The agency shall prescribe
in its rules the procedure for requesting a
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declaratory ruling and the circumstances in
which rulings shall or shall not be issued.
N.C. Gen. Stat. § 150B-4(a) (2013).
In 2007, the Board adopted the following rule regarding the
disposition of requests for declaratory rulings and the
circumstances under which such rulings shall — or shall not — be
issued:
(a) Upon receipt of a Request for
Declaratory Ruling, the Board shall
determine whether a ruling is appropriate
under the facts stated.
(b) When the Board determines that the
issuance of a declaratory ruling is
inappropriate, the Board shall notify, in
writing, the person requesting the ruling,
stating the reasons for the denial of the
request.
(c) The Board shall decline to issue a
declaratory ruling where:
(1) there has been a similar
controlling factual determination
made by the Board in a contested
case;
(2) the rule-making record shows that
the factual issues raised by the
request were specifically
considered prior to adoption of
the rule; or
(3) the subject-matter of the request
is involved in pending litigation
in any state or federal court in
North Carolina;
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(4) the petitioner fails to show that
the circumstances are so changed
since the adoption of the statute
or rule that a ruling is
warranted.
21 N.C.A.C. 32A.0112 (2013) (emphasis added). In its denial of
Dr. Jemsek’s request for a declaratory ruling, the Board cited
21 N.C.A.C. 32A.0112(c)(1) — that “there has been a similar
controlling factual determination made by the Board in a
contested case” — as the basis for its decision.
An agency’s denial of a request for a declaratory ruling is
not a decision on the merits of the case. See Equity Solutions
of the Carolinas, Inc. v. N.C. Dep’t of State Treasurer, ___
N.C. App. ___, ___, 754 S.E.2d 243, 249 (2014) (explaining that
when agency declines to issue declaratory ruling, “there has
been no agency decision on the merits [of the] case”). Because
the agency does not reach the merits of the request when it
declines to issue a declaratory ruling, the merits of the
party’s petition for a declaratory ruling are not before the
superior court and thus are not before this Court. See id. at
___, 754 S.E.2d at 249 (“offer[ing] no opinion on the merits of
[petitioner’s] request for a declaratory ruling [because] [t]hat
issue was not before the trial court and is not before this
Court”).
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Instead, our review is limited solely to the agency’s
decision to deny the request. Because Dr. Jemsek contends that
the Board committed an error of law in denying his request for a
declaratory ruling, we review the denial de novo. Craven Reg’l
Med. Auth. v. N.C. Dep’t of Health & Human Servs., 176 N.C. App.
46, 51, 625 S.E.2d 837, 840 (2006) (“Where a party asserts an
error of law occurred [in an administrative agency decision], we
apply a de novo standard of review.”).
In this case, we believe that the trial court correctly
dismissed Dr. Jemsek’s petition challenging the Board’s refusal
to issue a declaratory ruling. In 21 N.C.A.C. 32A.0112, the
Board has made clear that it “shall decline to issue a
declaratory ruling where . . . there has been a similar
controlling factual determination made by the Board in a
contested case.” 21 N.C.A.C. 32A.0112(c)(1) (emphasis added).
Here, the Board’s 21 August 2006 order — entered after a two-day
disciplinary hearing on Dr. Jemsek’s diagnostic and treatment
methods for Lyme disease — clearly constitutes a prior Board
decision on a similar factual determination in a contested case.
See N.C. Gen. Stat. § 150B-2(2) (2013) (defining contested case
as “an administrative proceeding . . . to resolve a dispute
between an agency and another person that involves the person’s
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rights, duties, or privileges, including licensing or the levy
of a monetary penalty . . . .”).
Thus, while Dr. Jemsek contends that his petition for a
declaratory ruling presented issues that did not exist at the
time of the initial hearing in 2006, he cannot dispute that
there was, in fact, a prior determination by the Board
concerning his approach to diagnosing and treating patients with
putative diagnoses of Lyme disease. Indeed, the bulk of Dr.
Jemsek’s petition for a declaratory ruling centered around his
request for a determination by the Board that its 21 August 2006
disciplinary order was improper. Specifically, Dr. Jemsek
sought a ruling from the Board declaring that it had utilized
the incorrect standard of care and improperly disciplined him
for exercising his medical judgment, which, in his view, did not
establish a departure from accepted practices.
As this Court has previously explained in a different
context, an agency may properly deny a request for a declaratory
ruling when the request is based upon a factual situation that
the agency has already decided in a prior case. See Charlotte-
Mecklenburg Hosp. Auth. v. Bruton, 145 N.C. App. 190, 192-93,
550 S.E.2d 524, 526-27 (2001) (holding that denial of request
for declaratory ruling regarding Medicaid eligibility of legal
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aliens was appropriate given that agency “had previously decided
the actual cases from which petitioners drew their facts”),
disc. review denied, 355 N.C. 210, 559 S.E.2d 798 (2002). We
reasoned that “[t]o hold otherwise would be to require an agency
to twice decide the same case, between the same parties, by
applying the same statute to the same facts.” Id. at 193, 550
S.E.2d at 526 (citation and quotation marks omitted).
In this case, Dr. Jemsek’s petition for a declaratory
ruling essentially sought to relitigate the Board’s conclusion
set out in its 21 August 2006 order that Dr. Jemsek’s practices
departed from acceptable and prevailing standards regarding the
diagnosis and treatment of Lyme disease and requested that the
Board rescind its 2006 order. The trial court’s order
dismissing Dr. Jemsek’s petition for judicial review
specifically ruled that “[t]he matters requested for such ruling
have been previously adjudicated by the Board in a final
decision by the Medical Board which was not appealed” and that
“[t]he current request by Petitioner is no more than an attempt
to untimely appeal the Medical Board’s 2006 disciplinary order.”
We agree. The Board’s denial of the request for a
declaratory ruling conformed with 21 N.C.A.C. 32A.0112(c)(1) and
was in no way inconsistent with N.C. Gen. Stat. § 150B-4.
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Therefore, we hold that the trial court did not err in
dismissing Dr. Jemsek’s petition.
Conclusion
For the reasons stated above, we affirm the trial court’s
order.
AFFIRMED.
Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).