ADMINISTRATIVE LAW – Occupations & Professions – Medical licensure: (SC 5/21/2009)

Eric C. Norsworthy, MD v. Kentucky Board of Medical  Licensure (KBML)
2008-SC-000918-1 May 21, 2009
Opinion and order of the Court. All sitting; all concur.

A KBML panel restricted a doctor’s license to treating only male patients after a sexual misconduct complaint was lodged against him by a female patient (the sixteenth such complaint in 19 years). The doctor appealed the decision to the circuit court, where he also sought injunctive relief during the pendency of the appeal. The circuit court granted the injunction, holding restricting his license amounted to irreparable injury. The Court of Appeals reversed, holding that the circuit court abused its discretion when it found that the injury to the doctor rose to the level to justify an injunction. The doctor then sought review by the Supreme Court under CR 65.09. The Supreme Court denied the request to reinstate the injunction after applying the tripartite test from Maupin (1: irreparable harm if relief not granted; 2: substantial possibility appellant will ultimately prevail on merits; 3: injunction will not harm other parties or disserve public). The Court noted that mere economic and reputational injury are generally not irreparable and the proof did not support the doctor’s claims that the restriction would result in the loss of 70% of his patients and force him to close his practice. The Court also held that the circuit court abused its discretion when it decided there was a substantial possibility that the doctor would ultimately prevail on the merits. The Court found that the lower court had based its determination on the doctor’s assertion that the complainant’s medical chart listed medications used to treat bipolar schizophrenic disorders.

Lastly, the Court held that the circuit court abused its discretion when it balanced the equities in the doctor’s favor based on a) the mere fact that a large group of women traveled a long way to support the doctor at his hearing and b) the circuit court’s mistaken belief that no other complaints had been filed against the doctor since the complaint in question. Further, the Court noted that under the “unclean hands” doctrine, the doctor was not entitled to equitable relief since he had been indicted on nine felony charges that he improperly accessed the complainant’s electronic prescription records after she filed her complaint against him and was no longer his patient.

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