IN THE COURT OF APPEALS OF IOWA
No. 14-1764
Filed October 28, 2015
AMJAD BUTT, M.D.,
Plaintiff-Appellant,
vs.
IOWA BOARD OF MEDICINE,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
Amjad Butt, M.D., appeals the district court’s ruling on judicial review
upholding the agency’s remand decision. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED WITH DIRECTIONS.
David L. Brown of Hansen, McClintock & Riley, Des Moines, and R.
Ronald Pogge and Amy B. Pellegrin of Hopkins & Huebner, P.C., Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Jordan G. Esbrook and Meghan
L. Gavin, Assistant Attorneys General, for appellee.
Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.
2
VAITHESWARAN, Judge.
This appeal from an agency’s remand decision raises several issues,
including whether the agency exceeded this court’s remand directions by making
a fact finding and whether, if it did, the fact finding was supported by substantial
evidence.
I. Background Facts and Proceedings
This is the second appeal arising from the Iowa Board of Medicine’s
discipline and sanction of Dr. Amjad Butt in Board Case No. 02-08-154. See Butt
v. Iowa Bd. of Med., No. 12-1118, 2013 WL 2637283 (Iowa Ct. App. June 12,
2013). The board issued a citation and warning, imposed a $5000 civil penalty,
required Dr. Butt to successfully complete a professional boundaries program,
and placed him on probation for five years. Id. at *7.
The facts leading to the discipline were set forth in detail in our first
opinion. See id. at *1. We find it unnecessary to repeat all the facts here. The
relevant portion of the opinion for purposes of this appeal was our conclusion that
substantial evidence supported the following fact findings of the board: (1) Dr.
Butt “[m]ade offensive comments to Nurse # 2 [Portz] during their meeting on
February 11, 2008, and threatened to ‘crush’ her,” and (2) Dr. Butt “[a]sked
Employee # 1 [Peska], in a joking manner, if she would leave her husband and
have his baby.” Id. at *15. Based on these two fact findings, we affirmed
the board’s conclusion that Dr. Butt engaged in unethical and/or
unprofessional conduct in violation of Iowa Code sections 147.55(3)
and 272C.10(3) [(2007)] and Iowa Administrative Code rule 653–
23.1(4) as charged in Count I in that he acted unprofessionally
when he made offensive and threatening statements to Portz and
when he made unprofessional comments to Peska.
3
Id. We “otherwise reversed the findings and conclusions as to that count.” Id.
We remanded “and directed the district court to remand these proceedings to the
agency to determine the propriety of the discipline imposed in light of our
conclusion.” Id.
On remand, the board did not hold an evidentiary hearing; the agency
simply heard arguments from counsel. After summarizing the procedural history,
the board stated:
The Board continues to have serious concerns that Respondent
engaged in offensive, threatening and intimidating conduct toward
clinic staff. The Board is concerned that Respondent’s threatening
and offensive statements undermined effective communication with
clinic staff. The Board believes that such conduct interferes with, or
has the potential to interfere with, patient care and/or the effective
functioning of health care staff.
(Emphasis added). The board re-imposed the original sanctions, reasoning as
follows:
Given the nature and seriousness of these violations, the Board
believes that its original sanctions are still appropriate and are
necessary for the protection of the public. The Board believes that
these violations are best remediated by requiring Respondent to
complete of a Board-approved Professional Boundaries course and
a five year probationary period, subject to Board monitoring. The
Board was not persuaded by Respondent’s argument that the
Board should modify its prior sanctions in this case.
The board also declined to withdraw a report it made to the National Practitioner
DataBank (NPDB). The board reasoned that “it was required by [federal law] to
file a report.”
On judicial review of the remand decision, the district court affirmed the
agency decision. This appeal followed.
4
Dr. Butt now contends (A) the board’s “new and additional findings of fact”
were unsupported by substantial evidence; (B) the board’s reporting to the NPDB
was grounds for reversal; (C) the discipline imposed by the board was
inconsistent with prior practice and was otherwise arbitrary, capricious, or an
abuse of discretion; (D) the negative impact on his rights was grossly
disproportional to the benefits accruing to the public interest; and (E) the board
violated his right to procedural due process.
II. Analysis
A. New or Additional Findings of Fact & Substantial Evidence
1. New or Additional Finding of Fact
The Iowa Supreme Court has stated:
When an appellate court remands a case to a trial court for some
stated further proceeding, the nature and extent of that proceeding
are circumscribed. The authority of the court on remand is limited
to the matters specified by the appellate court. Put another way,
the trial court has no authority to act on matters outside the
appellate court’s mandate. [T]he same rule applies to an
administrative agency.
Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 573 (Iowa 2006).
As noted, the remand decision stated, “The Board believes that such
conduct interferes with, or has the potential to interfere with, patient care and/or
the effective functioning of health care staff.” According to Dr. Butt, this language
is a “widen[ing of the board’s] previous factual findings and conclusions of law
. . . to allege Dr. Butt caused patient harm.” The board responds that the
language is simply a recapitulation of an agency rule quoted by this court in its
prior opinion. Notwithstanding well-articulated written and oral advocacy by
board counsel, we find the board’s argument unpersuasive.
5
Our prior opinion recounted the board’s initial statement of charges and
the statutory and regulatory provisions alleged to have been violated. See Butt,
2013 WL 2637283, at *1. We quoted several provisions, including ones the
board found were not violated. See, e.g., Iowa Admin. Code r. 653-13.7(6)
(stating, “A physician shall not engage in sexual harassment. Sexual
harassment is defined as verbal or physical conduct of a sexual nature which
interferes with another health care worker’s performance or creates an
intimidating, hostile or offensive work environment.”). One of the quoted
provisions was Iowa Administrative Code rule 653-13.7(5), which states:
A physician shall not engage in disruptive behavior. Disruptive
behavior is defined as a pattern of contentious, threatening, or
intractable behavior that interferes with, or has the potential to
interfere with, patient care or the effective functioning of health care
staff.
We specifically pointed out the board’s rejection of the single charge involving
patients. See Butt, 2013 WL 2637283, at *6. And, as discussed, we found
substantial evidence to support only two fact findings, both of which related to
physician-employee interactions and neither of which mentioned patient care.
On remand, the board was to reconsider the penalty in light of our
rejection of several fact findings. The board was afforded no authority to make
additional fact findings or determinations of ultimate fact. See Winnebago, 727
N.W.2d at 573. Our opinion became the law of the case. See id. (“The doctrine
of the law of the case represents the practice of courts to refuse to reconsider
what has once been decided.” (Citations omitted)).
Without authorization, the board added a statement not contained in its
original decision concerning Dr. Butt’s interference or potential interference with
6
patient care. The board prefaced the statement with the language, “The Board
believes.” The board neither cited nor quoted rule 653-13.7(5).
Given the absence of a citation to rule 653-13.7(5), the board argues the
rule was incorporated by reference within the cited rule governing unethical or
unprofessional conduct. See Iowa Admin. Code r. 653-23.1(4). In its view, rule
653-23.1(4) includes ‘violation of the standards and principles of medical ethics”
and “[s]ection 653-13.7 is a rule on medical ethics which addresses ‘standards of
practice’ for ‘office practices’ and includes a prohibition on ‘disruptive behavior.’”
If we were to accept the board’s argument, the board could find a violation of any
of the varied “standards of practice” contained in the rule, whether specifically
charged or not.1 This is an irrational, illogical, and wholly unjustifiable
interpretation of rule 653-23.1(4). See Evercom Sys., Inc. v. Iowa Utils. Bd., 805
N.W.2d 758, 763 (Iowa 2011) (“We will [] review the Board’s interpretation of the
rules it has promulgated . . . under the same deferential standard we used to
review the Board’s interpretation of the statute.”); see also Al-Jurf v. Iowa Bd. of
Med., No. 12-0293, 2013 WL 3830159, at *4 (Iowa Ct. App. July 24, 2013)
(stating professional boards are clearly vested “with authority to interpret the
chapters at issue”).
Notably, the board’s own charging document did not incorporate all the
rule 653-13.7 standards by reference. Instead, the board cited a single standard
from the rule, the standard relating to sexual harassment. See 653 Iowa Admin.
1
The rule proscribes everything from neglect of a patient to receipt of compensation for
patient referrals.
7
Code r. 653-13.7(6). Rule 653-13.7(5) on disruptive behavior was not
mentioned.
We conclude the statement, “The Board believes that such conduct
interferes with, or has the potential to interfere with, patient care and/or the
effective functioning of health care staff,” was an agency finding of fact. We
further conclude the finding of fact was not authorized by our remand directions.
2. Substantial Evidence
Anticipating this conclusion, the board asserts, “Even if the Court views
the Board’s recitation of [the] agency rule as a finding of fact, [] the statement is
appropriate and not grounds for reversal.” In its view, “The Board made the
statement in order to answer” the question of the appropriate discipline. The
board contends, “Adequate patient care requires nurses, doctors, and clinic
employees to work together closely” and “Dr. Butt’s disruptive behavior does
have the potential to jeopardize patient care, in that nurses and employees that
are badly treated may avoid doctors or fail to communicate effectively about
patient care.”
The board seems to argue it did nothing more than draw the obvious
inferences that “adequate patient care requires nurses, doctors, and clinic
employees to work together closely” and disruptive behavior could jeopardize
patient care. But inferences, whether obvious or not, must amount to more than
speculation and must be subject to reasonable deduction from the record. See
Lewis v. State ex. rel. Miller, 646 N.W.2d 121, 124 (Iowa 2002) (“An inference is
not legitimate if it is based upon speculation or conjecture.” (citation omitted)).
The board’s finding that Dr. Butt’s conduct interfered with or had the potential to
8
interfere with patient care could not reasonably be deduced from the record. See
id.
The board’s appellate brief cites no record evidence supporting the finding
of an actual or potential threat to patient care. When pressed at oral argument,
board’s counsel cited one of the employee’s expressions of fear of Dr. Butt. The
board did not make a specific finding that Nurse Portz feared Dr. Butt. Assuming
such fear can be gleaned from the record, the board found and our opinion
stated Nurse Portz “never even worked with Dr. Butt.” Butt, 2013 WL 2637283,
at *4. As for employee Peska, our opinion notes she became “nervous” as a
result of Dr. Butt’s comments.2 See id. at *13. Even if nervousness were
synonymous with fear, the board points to no evidence Peska was involved with
patient care.3
Because the board’s finding that Dr. Butt interfered or potentially interfered
with patient care could not reasonably be deduced from the record, it follows the
finding was not supported by substantial evidence. See Iowa Code
§ 17A.19(10)(f) (2013). We reverse the board’s remand decision to the extent it
included this unauthorized fact finding, the patient care portion of which is also
unsupported by substantial evidence. We remand to the district court for an
2
The paper “certified copy” of the agency record does not include the original hearing
transcript. The electronic record includes excerpts from the original hearing transcript. It
is unclear why the electronic version deviates from the paper version. Relying on the
table of contents to the original hearing transcript included in the electronic version, we
have reviewed the transcript pages that should correspond to Employee Peska’s
testimony. No mention is made of her fear of Dr. Butt. As for Nurse Portz’s testimony,
we cannot find it in the electronic or paper version of the record. Her written statement,
however, is included in both records and states, “I am also hoping for a long life ahead of
me. If something does happen to me; I hope Medical Associates will enlighten
investigators of the preceding event that has occurred with Dr. Butt.”
3
The record includes the agency’s original fact findings in their entirety, which state
“Employee #1 [Peska] worked as a scheduler.”
9
order directing the board to file an amended decision striking the following
sentence: “The Board believes that such conduct interferes with, or has the
potential to interfere with, patient care and/or the effective functioning of health
care staff.”
B. Refusal to Withdraw Report to National Practitioner DataBank
As noted, Dr. Butt asked the Board to withdraw its report from the NPDB.4
On remand, the board declined the request.
At oral arguments, Dr. Butt conceded the board is required to report
sanctions and discipline to the Databank. See Iowa Admin. Code r. 653-25.32
(“The board shall report final decisions to the appropriate organizations, including
but not limited to the National Practitioner DataBank . . . .”). He takes issue with
the board’s decision to answer “Yes” to the following question: “Is the Adverse
Action Specified in this Report Based on the Subject’s Professional Competence
or Conduct, Which Adversely, or Could have Adversely Affected, the Health or
Welfare of the Patient?” He asserts this portion of the report was “false and not
based on evidence in the record.”
Federal regulations governing the NPDB state:
Persons and entities are responsible for the accuracy of
information which they report to the NPDB. If errors or omissions
are found after information has been reported, the person or entity
which reported it must send an addition or correction to the NPDB
. . . as soon as possible. The NPDB will not accept requests for
readjudication of the case by the NPDB, and will not examine the
underlying merits of a reportable action.
4
In our first appeal, we did not decide whether the board should have withdrawn its
report to the NPDB. Accordingly, our opinion did not become the law of the case on the
issue of NPDB reporting. See State ex. rel. Goettsch v. Diacide, 596 N.W.2d 532, 537
(Iowa 1999) (stating the law of the case doctrine only applies to so much of the prior
opinion that was essential to the determination required by the court).
10
45 C.F.R. § 60.6 (2013). This provision requires the board to inform the NPDB of
our conclusion in Part IIA concerning the unauthorized and largely unsupported
remand finding and the striking of that finding. Absent the finding, there is no
evidentiary support for the “Yes” answer to the question on the NPDB form
concerning patient care. Accordingly, we remand to the district court to remand
to the agency with directions to (1) include in its amended decision a statement
that the report to the NPDB will be amended to answer “No” to the question,
based on the evidentiary record made in Case No. 02-08-154, and (2) submit the
amended decision to the NPDB within thirty days of its issuance.
C. Discipline
Dr. Butt next argues the board’s decision to impose the same sanctions
originally imposed was “inconsistent with prior practice and otherwise arbitrary,
capricious, or an abuse of discretion.” In his view, because this court “reversed a
portion of the Board’s initial findings upon which the original sanctions were
imposed, . . . then reason would follow that those same sanctions would not be
appropriate for a lesser set of facts.”
As the board points out, Dr. Butt failed to articulate how the sanctions
were inconsistent with prior practice. Accordingly, we will not consider this
standard of review. See Iowa Code §17A.19(10)(h).
Turning to the “arbitrary and capricious” standard cited by Dr. Butt, agency
action is “arbitrary and capricious” if it was made “without regard to the law or
facts.” Greenwood Manor v. Iowa Dep’t of Pub. Health, State Health Facilities
Council, 641 N.W.2d 823, 831 (Iowa 2002). It is clear from our prior opinion that
11
the board had grounds to discipline Dr. Butt. Accordingly, reversal is not
mandated under this standard of review. See Iowa Code § 17A.19(10)(n).
We are left with the question of whether the imposition of the same
sanctions constituted an abuse of discretion. Id. The board is authorized to
impose a broad range of disciplinary sanctions, including revocation, suspension,
restriction, probation, additional education or training, physical or mental
evaluation, and civil penalties, citations, and warnings. See Iowa Admin. Code r.
653-25.25(1). In “determining the nature and severity of the disciplinary
sanction,” the board, in its “discretion,” “may [] consider[]” several factors:
a. The relative seriousness of the violation.
b. The facts of the particular violation.
c. Any extenuating circumstances or other countervailing
considerations.
d. Number of prior complaints, informal letters or disciplinary
charges.
e. Seriousness of prior complaints, informal letters or
disciplinary charges.
f. Whether the licensee has taken remedial action.
g. Such other factors as may reflect upon the competency,
ethical standards and professional conduct of the licensee.
Iowa Admin. Code r. 653-25.25(2). These rules vest the board with discretion to
determine the sanction. See Hagen v. Iowa Dental Bd., No. 13-0162, 2013 WL
4769330, at *5 (Iowa Ct. App. Sept. 5, 2013).
In ordering remand for reconsideration of the penalty, this court did not
require the sanction to be lowered in light of our reversal of certain fact findings.
See Butt, 2013 WL 2637283, at *15. We left it to the board to evaluate the
propriety of the sanctions. Id. Under these circumstances, we are convinced
there was no abuse of discretion in the imposition of the same sanctions. See
12
Burns v. Bd. of Nursing of State of Iowa, 528 N.W.2d 602, 605 (Iowa 1995)
(“When the licensing board is made up of members of the profession they are
licensing, the court should not second guess the board’s discretion to determine”
sanctions.). Accordingly, we affirm the sanctions imposed by the board on
remand.5
D. Grossly Disproportional
Dr. Butt contends the sanctions were grossly disproportionate to his
conduct. See Iowa Code §17A.19(10)(k) (authorizing reversal where the agency
action is “[n]ot required by law and its negative impact on the private rights
affected is so grossly disproportionate to the benefits accruing to the public
interest from that action that it must necessarily be deemed to lack any
foundation in rational agency policy”). He focuses on the costs he incurred as a
result of the sanctions. This court rejected a similar argument in Hagen, 2013
WL 4769330, at *5-6 (rejecting claim that potential monetary collateral
consequences of the board’s discipline render an otherwise appropriate sanction
grossly disproportionate). Similarly, we conclude the monetary outlay by Dr. Butt
does not render the sanction “so grossly disproportionate to the benefits accruing
to the public interest from that action that [the agency action] must necessarily be
deemed to lack any foundation in rational agency policy.” See id. at *5.
E. Due Process
Dr. Butt contends his constitutional right to due process was violated when
the board’s presiding officer discussed the time consuming nature of “repeat
5
As noted, we have separately considered the report to the NPDB.
13
hearings.” This issue was not preserved for our review. Fisher v. Iowa Bd. of
Optometry Exam’rs, 478 N.W.2d 609, 612 (Iowa 1991).
III. Disposition
We affirm the sanctions imposed by the agency on remand and the
balance of the decision, excluding the following statement: “The Board believes
that such conduct interferes with, or has the potential to interfere with, patient
care and/or the effective functioning of health care staff.” We reverse this agency
statement as an unauthorized fact-finding, which is largely unsupported by
substantial evidence.
We remand to the district court for an order directing the board to file an
amended decision striking the statement. We further remand to the district court
to remand to the agency with directions to (1) include in its amended decision a
statement that the report to the National Practitioner Databank will be amended
to answer “No” to the question on the NPDB form concerning patient care, based
on the evidentiary record made in Case No. 02-08-154, and (2) submit the
amended decision to the NPDB within thirty days of its issuance.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS.