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McCormick v. Arkansas State Medical Board

Court of Appeals of Arkansas, Division III

December 13, 2017

DENISE OLDENBERG MCCORMICK, M.D. APPELLANT
v.
ARKANSAS STATE MEDICAL BOARD APPELLEE

         APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CV-12-275] HONORABLE SHAWN A. WOMACK, JUDGE

          Jeremy B. Lowrey, for appellant.

          Hope, Trice, O'Dwyer & Wilson, P.A., by: Kevin M. O'Dwyer and Christopher B. Arnold, for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Denise Oldenberg McCormick, M.D. (McCormick), appeals from a decision of the Baxter County Circuit Court affirming two orders of the Arkansas State Medical Board (Board) that revoked her license to practice medicine. McCormick raises four arguments for reversal. First, she argues that the circuit court erred in concluding that some of the issues were barred by res judicata. McCormick's second and third arguments are interrelated. Under point three, she argues that there was a conflict of interest because counsel for the Board also served in the role of prosecutor in the disciplinary proceedings before the Board. Under point two, she argues that the circuit court erred in finding that she waived this issue by failing to appear at the hearing before the Board. McCormick's remaining argument is that the Board acted beyond the scope of its authority by issuing emergency orders under the Arkansas Medical Practices Act without any findings based on substantive evidence of threat to public health, safety, or welfare. We affirm.

         Judicial review of the Board's decision is governed by the Administrative Procedure Act (APA), which provides in part:

The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusion, or decisions are:
(1)In violation of constitutional or statutory provisions;
(2)In excess of the agency's statutory authority;
(3)Made upon unlawful procedure;
(4)Affected by other error or law;
(5)Not supported by substantial evidence of record; or
(6)Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-15-212(h) (Repl. 2014).

         On appeal, an appellate court's review is directed, not toward the circuit court's order, but toward the order of the agency, because we have held that administrative agencies are better equipped by specialization, insight through experience, and more ¶exible procedures than courts to determine and analyze legal issues affecting their agencies. Voltage Vehicles v. Ark. Motor Vehicle Comm'n, 2012 Ark. 386, 424 S.W.3d 281. Our review of administrative decisions, however, is limited in scope. Id. When reviewing such decisions, we uphold them pursuant to the APA if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id.

         Facts and Procedural History

          McCormick received her medical license in 1988. Complaints against McCormick and her extensive history with the Board go back to 1991. In 2008, in unrelated proceedings, McCormick was ordered by the Board to provide monthly reports of all scheduled drug prescriptions and refills that she authorized for her patients' use. The present proceedings commenced on May 4, 2010, when the Board entered an Emergency Order of Suspension charging McCormick[1] with multiple violations of the Board's regulations and orders, to-wit:

. Violating the July 7, 2008, order of the Board to provide monthly prescription reports;
. Violating Regulation 2.4 by prescribing excessive amounts of controlled substances;
. Violating Regulation 2.6 by prescribing schedule medications for pain without keeping proper records and monitoring of patients;
. Violating Regulation 7 by prescribing schedule 2 amphetamines and methamphetamines for Attention Deficit Disorder without obtaining the required second opinion;
. Violating Regulation 21 by prescribing schedule 3 and 4 controlled substances for obesity and weight loss without following the required guidelines;
. Committing gross negligence and ignorant malpractice in the manner in which she performed facet injections and sciatic nerve injections.

         The Emergency Order documented thirty-four patient studies in support of the charges against McCormick. The emergency order concluded with a finding that "the acts of Denise Oldenberg [McCormick], MD, described herein above, present a danger to the public health, safetyand welfare, and therefore, the license to practice medicine in the State of Arkansas of Denise Oldenberg [McCormick], M.D., is suspended on an emergency basis pending a disciplinary hearing ...


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