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Emergency Administrative Orders and Regulations

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Court discusses standards for emergency public health adjudications and orders - Miulli v. Iowa Bd. of Medical Examiners, 683 N.W.2d 126 (Iowa App. 2004)

also see: Emergency rules on allocation of flu vaccine


[2]     No. 4-100 / 03-0319

[3]     2004.IA.0000353< http://www.versuslaw.com>

[4]     April 28, 2004


[6]     Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.

[7]     Michael M. Sellers, Sellers Law Office, West Des Moines, for appellant.

[8]     Thomas J. Miller, Attorney General, Theresa O'Connell Weeg and Heather L. Adams, Assistant Attorneys General, for appellee.

[9]     Heard by Sackett, C.J., and Huitink and Miller, JJ.

[10]    The opinion of the court was delivered by: Huitink, J.

[11]     Dr. Daniel Miulli appeals the district court's decision affirming the action of the Iowa Board of Medical Examiners to restrict his medical license. AFFIRMED.

[12]     I. Background Facts & Proceedings

[13]     Dr. Daniel Miulli is a doctor of osteopathy. He completed a residency in neurosurgery in Pennsylvania and is board certified in neurological surgery by the American Osteopathic Association. He practiced in Minnesota for more than two years. In 1997 Dr. Miulli was issued a medical license in Iowa, and he began to practice neurosurgery at Mercy Hospital in Des Moines.

[14]     In February 1999 Dr. John Mawk, chief of neurosurgery at Mercy Hospital, filed a formal complaint against Dr. Miulli with the Iowa Board of Medical Examiners. Dr. Mawk's complaint was based on numerous statements from other physicians that Dr. Miulli had engaged in excessively aggressive surgeries. A board investigator interviewed several physicians in Des Moines who felt Dr. Miulli had performed more extensive surgeries than circumstances warranted.

[15]     Eighteen of Dr. Miulli's patient files were sent to a peer review committee comprised of Dr. John Van Gilder, chairman of the Department of Neurosurgery at the University of Iowa; Dr. Chad Abernathy, a neurosurgeon; and Dr. William Pontarelli, an orthopedic surgeon. The peer review committee concluded Dr. Miulli had breached the standard of care in one brain surgery and five spine surgeries. The committee also expressed serious concerns in five additional cases.

[16]     On January 18, 2001, the Board filed a statement of charges against Dr. Miulli, alleging he engaged in professional incompetency, practices harmful or detrimental to the public, and making misleading representations in the practice of medicine. The Board entered an emergency adjudicative order, which found Dr. Miulli's "continued practice of surgery on the central nervous system or spine would pose an immediate danger to the public health, safety, or welfare." Dr. Miulli was immediately restricted from performing surgery on the central nervous system or spine until he obtained Board approval of a plan to be monitored by another neurosurgeon. The Board denied Dr. Miulli's application for reconsideration of the emergency adjudicative order.

[17]     An administrative hearing was held in August 2001. The State presented the expert testimony of the members of the peer review committee, Dr. Van Gilder, Dr. Abernathy, and Dr. Pontarelli. Dr. Miulli presented the expert testimony of Dr. Fred Geisler, Dr. Keith Kattner, and Dr. Michael Amaral, neurosurgeons, and Dr. Alan Lippitt, an orthopedic surgeon.

[18]     The Board determined Dr. Miulli had engaged in professional incompetency in his treatment of four patients and the Board had significant concerns about his treatment of six other patients. The Board stated:

[19]     Based on its review of all of these cases, the Board has very serious concerns about the Respondent's clinical judgment, his selection of patients for surgery, his operative judgment in determining the extent of the surgical procedure to be performed, his selection of modalities for surgery, and his assessment of indications for surgery and interpretation of diagnostic studies, such as discograms and MRIs.

[20]     The competence issues and concerns raised by this record are extremely serious and justify the conclusion that the Respondent's practice of surgery on the central nervous system and spine was appropriately limited by the Board's Emergency Adjudicative Order.

[21]     The Board also found Dr. Miulli was guilty of practices harmful or detrimental to the public. Dr. Miulli admitted he had allowed his nurse to sign prescriptions, in violation of Iowa and federal law. Furthermore, the Board concluded Dr. Miulli knowingly made misleading representations in the practice of medicine. The Board found Dr. Miulli had provided false and misleading answers on his application for licensure in Iowa. The Board determined Dr. Miulli's medical license in Iowa should be restricted until he completed a comprehensive competency evaluation.

[22]     Dr. Miulli filed a petition for judicial review, alleging (1) Iowa Code section 17A.18A (2001) did not authorize an emergency adjudicative order in this case; (2) section 17A.18A violated due process; (3) the Board should have employed a clear and convincing evidence standard rather than a preponderance of the evidence standard in issuing the emergency order; and (4) there was not sufficient evidence to justify issuance of the emergency order. The district court rejected Dr. Miulli's claims.

[23]     Dr. Miulli then filed a motion to expand, which raised several issues regarding the Board's final ruling. The district court concluded:

[24]     The record in this case is extensive, and the factual issues complex and highly technical. The findings made by the Board were specific and detailed, and reflected careful balancing of the facts in each case. The Board relied extensively on its medical expertise to evaluate the patient records and the testimony of the treating physicians and expert witnesses. It is exactly this kind of expertise to which the Iowa Supreme Court repeatedly urges deference. See Iowa Code § 17A.19(11)(c). The Board's decision was supported by substantial evidence on the record, and is therefore affirmed.

[25]     Dr. Miulli appeals, claiming (1) section 17A.18A is unconstitutional; (2) he should have received a hearing prior to the restriction of his license; (3) in order to issue an emergency adjudicative order, the Board should use a clear and convincing evidence standard; and (4) there was insufficient evidence to justify the emergency adjudicative order.

[26]     II. Standard of Review

[27]     We review to determine whether the district court properly applied the law in exercising its judicial review function. Arora v. Iowa Bd. of Med. Exam'rs, 564 N.W.2d 4, 6 (Iowa 1997). We are bound by the agency's factual findings if they are supported by substantial evidence. Dawson v. Iowa Bd. of Med. Exam'rs, 654 N.W.2d 514, 518 (Iowa 2002). In deciding whether a finding is supported by substantial evidence in the record, we consider the evidence that detracts from the challenged finding as well as the evidence that supports it. Iowa Code § 17A.19(10)(f)(3); Dawson, 654 N.W.2d at 518. On constitutional issues, our review is de novo. Glowacki v. Iowa Bd. of Med. Exam'rs, 501 N.W.2d 539, 541 (Iowa 1993).

[28]     III. Due Process

[29]     Dr. Miulli claims the emergency adjudicative proceedings of section 17A.18A are unconstitutional because under this provision the Board restricted his medical license prior to any hearing being held. He states his medical license was a valuable property right, which should not have been taken away without due process of law.

[30]     Under the United States and Iowa Constitutions, "no person shall be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. XIV; Iowa Const. art. I, § 9. To determine what process is due in a particular case, we look to the balancing test found in Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed. 2d 18, 33 (1976). We consider: (1) the private interest that will be affected by the State's actions; (2) the State's interest; and (3) the risk that the current procedure will lead to an erroneous deprivation of the interests at stake and the probable value, if any, of additional or different procedural safeguards. Mathews, 424 U.S. at 332, 96 S.Ct. 901, 47 L.Ed. 2d at 33.

[31]     With respect to agency adjudications, due process generally requires that a party be informed of the issues and has an opportunity to be heard. See Paulson v. Iowa Bd. of Med. Exam'rs, 592 N.W.2d 677, 680 (Iowa 1999). Our supreme court has recognized four exceptions, where due process does not demand an administrative hearing, in cases involving: (1) no "life, liberty, or property" interests because no entitlement can be established; (2) an absence of relevant disputed facts; (3) emergency agency action; and (4) the use of inspections, examinations and testing to determine relevant facts. Allegre v. Iowa State Bd. of Regents, 349 N.W.2d 112, 115 (Iowa 1984) (citing Arthur Earl Bonfield, The Definition of Formal Agency Adjudication Under the Iowa Administrative Procedure Act, 63 Iowa L. Rev. 285, 325-35 (1977) (emphasis added)); see also Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 299-300, 101 S.Ct. 2352, 2372, 69 L.Ed. 2d 1, 31 (1981) (finding "summary administrative action may be justified in emergency situations"); Brummer v. Iowa Dep't of Corrs., 661 N.W.2d 167, 173 (Iowa 2003) (noting no hearing is required prior to emergency agency action).

[32]     Section 17A.18A(1) permits an agency to "use emergency adjudicative proceedings in a situation involving an immediate danger to the public health, safety, or welfare requiring immediate emergency action." See Dawson, 654 N.W.2d at 516. There are significant public health and safety issues involved in the regulation of doctors. Miller v. Iowa Bd. of Med. Exam'rs, 609 N.W.2d 478, 482 (Iowa 2000). The State has a strong interest in protecting the public from incompetent doctors. See Glowacki, 501 N.W.2d at 541.

[33]     When an agency engages in emergency proceedings, a reasonably prompt subsequent hearing will meet due process requirements. See F.K. v. Iowa Dist. Ct., 630 N.W.2d 801, 810 (Iowa 2001). Section 17A.18A(5) requires an agency to "proceed as quickly as feasible to complete any proceedings...." We conclude section 17A.18A does not violate due process requirements.

[34]     IV. Section 148.6

[35]     Dr. Miulli claims he had a statutory right to a hearing prior to the emergency restriction of his medical license, based on section 148.6. Dr. Miulli did not raise this argument before the district court, and we do not consider it on appeal. See Rosen v. Iowa Bd. of Med. Exam'rs, 539 N.W.2d 345, 352 (Iowa 1995).

[36]     V. Burden of Proof

[37]     Dr. Miulli claims the Board should have used a clear and convincing evidence standard to determine whether emergency adjudicative proceedings were appropriate in this case. The Iowa Supreme Court has determined that in medical disciplinary cases a preponderance of the evidence is all that is required. Eaves v. Iowa Bd. of Med. Exam'rs, 467 N.W.2d 234, 237 (Iowa 1991). "This standard is sufficient to satisfy due process." Id. (citation omitted).

[38]     Dr. Miulli asserts that due process requires a higher standard for emergency adjudicative proceedings. The case he cites, Nguyen v. Washington Dep't of Med. Quality Assurance Comm'n, 29 P.3d 689, 691 (Wash. 2001), does not, however, advocate one standard for medical disciplinary proceedings and another for emergency proceedings. The Washington Supreme Court notes "[s]ome jurisdictions have asserted the mere preponderance standard is sufficient to satisfy due process," and cites Eaves as an example. Nguyen, 29 P.3d at 690 n.3. The court then notes that other jurisdictions have required clear and convincing evidence in medical disciplinary proceedings. Id. The court concludes that in Washington, the clear and convincing standard will be required. Id. at 697.

[39]     Dr. Miulli does not cite any authority which states a higher standard of proof is required in an emergency proceeding. We affirm the district court's conclusion that the Board applied the correct burden of proof in this case.

[40]     VI. Sufficiency of the Evidence

[41]     Dr. Miulli contends the Board's emergency adjudicative order was improper because there was insufficient evidence of immediate danger. As noted above, section 17A.18A(1) provides "an agency must use emergency adjudicative proceedings in a situation involving an immediate danger to the public health, safety, or welfare requiring immediate agency action."

[42]     The emergency adjudicative order states:

[43]     The facts set forth above establish that Respondent's continued practice of surgery on the central nervous system or spine would pose an immediate danger to the public health, safety, or welfare. Respondent's surgical practices in these areas have seriously harmed several patients. The Board believes patients will continue to suffer harm if Respondent is allowed to engage in the unrestricted practice of surgery on the central nervous system and spine before the Board reaches a final resolution of the formal charges pending against him.

[44]     The emergency adjudicative order is based on the peer review committee's conclusion that Dr. Miulli had breached the standard of care in one brain surgery and five spine surgeries. The committee also expressed serious concerns in five additional cases. In addition, the order was based on the statements of several local physicians who felt Dr. Miulli had performed more extensive surgeries than circumstances warranted. Due to these extensive surgeries the patients had suffered serious complications, including loss of vision in one case. We find there is substantial evidence in the record to support the Board's conclusion that the situation involved an immediate danger to public health.

[45]     Although not separately stated as an issue, throughout his brief, Dr. Miulli alleges that several individuals involved in the disciplinary process were biased against him. The Board and the district court carefully considered Dr. Miulli's allegations of bias, and found the Board's action was based on serious medical concerns, not merely bias against Dr. Miulli. We find the Board's decision is supported by substantial evidence.

[46]     We affirm the decision of the district court and the Board of Medical Examiners.

[47]     AFFIRMED.


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