In the Matter of the Medical License of S. Fred Everett, M.D., Year of Birth: 1935, License Number: 22,350.

Minnesota Court of Appeals January 11, 2016

Opinion

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0505

In the Matter of the Medical License of S. Fred Everett, M.D.,
Year of Birth: 1935, License Number: 22,350.

Filed January 11, 2016
Affirmed
Schellhas, Judge

Minnesota Board of Medical Practice
License Number: 22,350

Mark J. Miller, Jennifer E. Speas, Minneapolis, Minnesota (for relator)

Lori Swanson, Attorney General, Jason Pleggenkuhle, Lucas T. Clayton, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Rodenberg, Judge; and

Reilly, Judge.

UNPUBLISHED OPINION

SCHELLHAS, Judge

Relator challenges the revocation of his medical license, arguing that the revocation

was not supported by substantial evidence, that the revocation was arbitrary and capricious,

and that his due-process rights were violated. We affirm.

FACTS

Relator S. Fred Everett, M.D., age 80, obtained his medical license from the State

of Minnesota in 1975. Dr. Everett limited the majority of his medical practice to North
Dakota, until he began practicing actively in Minnesota in 2002. Both the North Dakota

Board of Medical Examiners (ND board) and respondent Minnesota Board of Medical

Practice (MN board) have disciplined Dr. Everett for substandard professional conduct on

numerous occasions.

In 1991, the ND board revoked Dr. Everett’s North Dakota medical license after he

stipulated to allegations that he provided substandard medical care, which included

prescribing drugs in dangerous combinations and quantities to at least two patients, one of

whom died as a probable result, at least in part, of ingesting medications that Dr. Everett

prescribed. The ND board stayed execution of the revocation order on a number of

conditions. In 1994, the MN board issued an order that mirrored the 1991 ND board order

and required Dr. Everett to secure an approved supervising physician to provide reports to

the MN board about Dr. Everett’s Minnesota practice. In 1996, the ND board restored Dr.

Everett’s North Dakota medical license to an unconditional status. Based on the ND

board’s action, the MN board also restored Dr. Everett’s Minnesota medical license to an

unconditional status in 1996.

In 1999, the ND board issued an order restricting Dr. Everett’s North Dakota

medical license after he stipulated to allegations that, among other things, he had “failed to

adequately recognize and manage chemical dependency issues, particularly drug

addictions, in his patients” and his medical records “lacked the appropriate documentation

for diagnosis, testing and treatment of patients.” The ND board required Dr. Everett to

enter into collaborative agreements with other physicians to ensure that his patients would

be referred to the care of another physician when they required hospitalization. The ND

2
board also prohibited Dr. Everett from treating any psychiatric conditions or prescribing

any psychotropic drugs. Later that year, the MN board disciplined Dr. Everett in an order

that mirrored the 1999 ND board order and required Dr. Everett, among other things, to

comply with the terms and conditions of the 1999 ND board order and to submit

documentation to the MN board of his compliance with that order.

In May 2002, the ND board revoked Dr. Everett’s North Dakota medical license

after he admitted that he had “failed to appropriately document medical records with

adequate or legible or coherent notes” and had violated the 1999 ND board order by

prescribing certain drugs in dosages exceeding the maximum authorized by the ND board,

advising a patient to terminate the use of an antidepressant medication, and prescribing a

patient a prohibited medication.

In July 2002, after notifying the MN board that he intended to practice medicine in

Minnesota, Dr. Everett stipulated to certain facts regarding the 2002 ND board order, and

the MN board placed restrictions on Dr. Everett’s Minnesota medical license. Among other

things, the MN board required Dr. Everett to meet monthly with an approved supervising

physician who would review Dr. Everett’s daily prescription log, provide quarterly reports

to the MN board, and report his or her approval of Dr. Everett’s prescription log. The 2002

MN board order allowed Dr. Everett to petition for reduced monitoring after one year and

for reinstatement of an unconditional license after two years. In September 2005, the MN

board restored Dr. Everett’s Minnesota medical license to an unconditional status.

In September 2011, Dr. Everett stipulated to the issuance of the MN board order

that underlies this appeal. The MN board based its 2011 order on complaints that it received

3
between July 2007 and October 2008 alleging that Dr. Everett “inappropriately prescribed

various medications, including narcotics, for multiple patients.” The MN board also based

its 2011 order on a review of Dr. Everett’s documentation, patient care, and prescribing

practices and procedures. That review revealed that Dr. Everett

failed to appropriately maintain and adequately document his
clinic records. At times, [Dr. Everett]’s clinic notes failed to
adequately document his prescriptions or refills. A review of
[Dr. Everett]’s practice also indicated that for some patients
[Dr. Everett] did not implement or adequately enforce narcotic
contracts. [Dr. Everett] sometimes authorized “early refills” of
controlled substances, authorized replacement prescriptions
after his patients reported that their drugs were lost or stolen,
and continued to prescribe controlled substances to patients
with suspected or admitted chemical dependency. [Dr. Everett]
required biological fluid screens, but sometimes did not
suspend treatment when his patients either tested positive for
illegal drugs, or tested negative for their prescribed
medications.

In its 2011 order, the MN board suspended Dr. Everett’s Minnesota medical license

for two years, staying all but one month of the suspension. Among other things, the 2011

order required Dr. Everett to meet monthly with an approved supervising physician who

would submit quarterly reports to the MN board. The 2011 order specified that Dr. Everett

was responsible for ensuring timely submission of all required reports.

In October 2011, the MN board approved a supervision agreement between Dr.

Everett and another physician. From October 2011 until November 2014, as required by

the 2011 order, Dr. Everett and the supervising physician met monthly and the supervising

physician submitted the required quarterly reports to the MN board. On November 18,

2014, the supervising physician reported to the MN board that she had “reviewed Dr.

4
Everett’s patient care records. As in other quarters, there were no prescriptions for

controlled pain medications in the past quarter.” The supervising physician also informed

the MN board that “this is the last review I will do on behalf of Dr. Everett.”

On December 8, 2014, the MN board received a letter from Dr. Everett concerning

the status of his Minnesota medical license. Dr. Everett wrote:

First, with regard to my monitoring requirement, [the
supervising physician] has monitored the monthly [sic] for
nearly 4 years and has reached her limit. With no end in sight,
she sees no value in continuing and refuses to participate any
further. She is unbending in her position. I have searched
everywhere I can think of and have not been able to find a
replacement.

The MN board responded to Dr. Everett by a letter, dated December 15, 2014, stating that

“[i]f you don’t find a new supervising physician, you will be in violation of the terms of

[the 2011 order]. The Board is unable to assist with that matter.” Notwithstanding the MN

board’s letter, from December 2014 until March 5, 2015, with no supervision by a

physician, Dr. Everett continued to practice medicine.

On March 14, 2015, the MN board conducted a hearing concerning Dr. Everett’s

continued practice of medicine without a supervising physician. At the hearing, the

Complaint Review Committee (committee) argued that the only adequate remedy to protect

the public was revocation of Dr. Everett’s Minnesota medical license. The committee noted

the MN board’s receipt in February 2015 of a new complaint against Dr. Everett alleging

that he “engaged in inappropriate prescribing of controlled substances.” Dr. Everett, acting

pro se, acknowledged that he had practiced medicine for three months without a

supervising physician but argued that he had been compliant for 40 out of 43 months and

5
that he “respect[ed] the restrictions.” He also argued that he recently had located two

physicians who were willing to supervise him and that the MN board had failed to respond

to his former supervising physician’s questions as required by the supervision agreement.

On March 18, 2015, the MN board issued an order concluding that Dr. Everett had

violated the 2011 order by failing to have a supervising physician and by continuing to

practice without supervision. The MN board revoked Dr. Everett’s Minnesota medical

license and prohibited him from applying for another medical license for ten years.

This certiorari appeal follows.

DECISION

“Agency decisions are reversed only when they reflect an error of law, the findings

are arbitrary and capricious, or the findings are unsupported by substantial evidence.”

Cable Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship,

356 N.W.2d 658, 668

 (Minn.

1984); see also Rodne v. Comm’r of Human Servs.,

547 N.W.2d 440

, 444–45 (Minn. App.

1996) (“On certiorari appeal from a quasi-judicial agency decision that is not subject to the

administrative procedure act, we inspect the record to review ‘. . . whether the order or

determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent,

under an erroneous theory of law, or without any evidence to support it.’” (quoting Dietz

v. Dodge Cty.,

487 N.W.2d 237, 239

 (Minn. 1992))).

Substantial evidence for revocation

       Dr. Everett first argues that the revocation was not supported by substantial

evidence.




                                             6
                     A decision is supported by substantial evidence when it
              is supported by (1) such relevant evidence as a reasonable mind
              might accept as adequate to support a conclusion; (2) more
              than a scintilla of evidence; (3) more than some evidence; (4)
              more than any evidence; or (5) the evidence considered in its
              entirety.

Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency,

644 N.W.2d 457, 464


(Minn. 2002).

              The substantial evidence test requires a reviewing court to
              evaluate the evidence relied upon by the agency in view of the
              entire record as submitted. If an administrative agency engages
              in reasoned decision[-]making, the court will affirm, even
              though it may have reached a different conclusion had it been
              the factfinder.

Cable Commc’ns Bd., 356 N.W.2d at 668–69 (citation omitted). “An administrative

agency’s decision enjoys presumptive correctness, and we defer to the agency’s expertise

and specialized knowledge in the field. We will not disturb an agency’s decision as long

as the agency’s determination has adequate support in the record as required by the

substantial evidence test.” In re Minnikka Props., LLC,

834 N.W.2d 572, 577

 (Minn. App.

2013) (quotation and citation omitted); see also Cable Commc’ns Bd.,

356 N.W.2d at 668


(stating that “[appellate] court[s] attach[] a presumption of correctness to agency decisions

and show[] deference to an agency’s conclusions in the area of its expertise”).

       Dr. Everett argues that the MN board’s decision to revoke his license was not

supported by substantial evidence because the board relied “almost exclusively” on his past

discipline in North Dakota. Dr. Everett argues that the MN board was prohibited statutorily

from considering his North Dakota discipline because Minnesota Statutes section 147.091,

subdivision 8 (2014), provides a seven-year statute of limitations for MN board disciplinary


                                             7
proceedings. But by its terms, section 147.091, subdivision 8, does not prohibit the MN

board from considering past disciplinary actions in determining appropriate discipline for

the violation of a current order. See

Minn. Stat. § 147.091

, subd. 8 (“No board proceeding

against a regulated person shall be instituted unless commenced within seven years from

the date of the commission of some portion of the offense or misconduct complained

of . . . .”). We conclude that the MN board did not err by considering Dr. Everett’s past

discipline to determine appropriate discipline for his violation of the 2011 order.

       Dr. Everett similarly argues that, because the MN board granted him an

unconditional license in 2005, it “waived its right to feign indignation at [his] past

discipline.” Dr. Everett provides no authority to support the proposition that an agency

cannot consider past discipline after granting an unconditional license; he therefore forfeits

the argument. See State v. Modern Recycling, Inc.,

558 N.W.2d 770, 772

(Minn. App.

1997) (“An assignment of error based on mere assertion and not supported by any argument

or authorities in appellant’s brief is waived and will not be considered on appeal unless

prejudicial error is obvious on mere inspection.” (quotation omitted)).

Dr. Everett also suggests that his only violation of the 2011 order was “his failure

to secure a single quarterly supervisory report,” which he contends did not constitute a

material breach of the supervision agreement. He further argues that his breach is mitigated

by the MN board’s failure to fulfill its own duties under the agreement to “[a]nswer any

questions and/or provide information that clarifies the Supervising Physician’s role and

responsibilities.” In his prehearing submission to the MN board, Dr. Everett quotes a

statement allegedly made by his supervising physician that

8
it would be very helpful to me if I knew where things stand at
the moment. It was my understanding that cases like this
usually resolve in several months but as you know it’s been
several years. If I were brought up to date as to where things
are or what was impeding the process, I would be better
prepared to continue in what seems to be endless at this time.

Dr. Everett ignores the provision in the 2011 order that “[t]he evidentiary record [at

the hearing] before the Board shall be limited to . . . affidavits [made on personal

knowledge] and this Stipulation and Order.” And Dr. Everett did not submit an affidavit

from the supervising physician. The alleged statement therefore was not part of the

evidentiary record at the hearing and could not be considered by the MN board, which

notes that no evidence in the record supports Dr. Everett’s assertion that his supervising

physician had unanswered questions for the MN board. Indeed, none of the supervising

physician’s quarterly reports, which were part of the record before the MN board, revealed

that the physician had any questions regarding her role.

Dr. Everett’s arguments are unavailing. Even if the MN board improperly

considered Dr. Everett’s past discipline, its decision nevertheless is supported by other

substantial evidence. In its 2011 order, the MN board required Dr. Everett to meet monthly

with an approved supervising physician who would submit quarterly reports to the MN

board. Dr. Everett was responsible for ensuring timely submission of all required reports.

In its 2015 order, the MN board found that “[Dr. Everett] ha[d] continued to practice

without a supervising physician for at least 3 months and ha[d] not removed himself from

practice, despite being out of compliance with the 2011 . . . Order.” This finding is

supported by record evidence. In addition to Dr. Everett’s and his supervising physician’s

9
letters to the MN board, Dr. Everett admitted at his hearing that “[t]he Notice for Hearing

today said that we were going to discuss whether I was guilty of practicing without a

supervising physician, which I am for three months.” (Emphasis added.) The record

demonstrates that substantial evidence supports the MN board’s decision to revoke Dr.

Everett’s medical license.

Revocation not abuse of discretion or arbitrary and capricious

“An administrative agency’s assessment of penalties or sanctions is an exercise of

its discretionary power. In re Haugen,

278 N.W.2d 75

, 80 n.10 (Minn. 1979). A reviewing

court, therefore, may not interfere with the penalties or sanctions imposed by an agency

decision unless a clear abuse of discretion is shown by the party opposing the decision.” In

re Lawful Gambling License of Henry Youth Hockey Ass’n,

511 N.W.2d 452, 456

 (Minn.

App.), modified on other grounds mem.,

559 N.W.2d 410

 (Minn. 1994); see also Proetz v.

Minn. Bd. of Chiropractic Exam’rs,

382 N.W.2d 527

, 532–33 (Minn. App. 1986) (“The

assessment of sanctions by a professional board is discretionary. Absent an abuse of

discretion, the Board’s decision will not be disturbed on appeal.” (citation omitted)), review

denied (Minn. May 16, 1986). “[An] agency’s conclusions are not arbitrary and capricious

so long as a rational connection between the facts found and the choice made has been

articulated.” In re Review of 2005 Annual Automatic Adjustment of Charges for All Elec.

& Gas Utils.,

768 N.W.2d 112, 120

 (Minn. 2009) (quotations omitted). This court has noted

that:

                     Boards and commissions like the Board of Medical
              Examiners are appointed because of their special expertise
              regarding the standards of their own professions. When a


                                             10
              professional person must be disciplined for breaching these
              standards, the nature and duration of the discipline is best
              determined by his or her fellow professionals, who are in a
              superior position to evaluate the breaches of trust and
              unprofessional conduct.

Padilla v. Minn. State Bd. of Med. Exam’rs,

382 N.W.2d 876

, 886–87 (Minn. App. 1986),

review denied (Minn. Apr. 24, 1986). “[Appellate] court[s] attach[] a presumption of

correctness to agency decisions and show[] deference to an agency’s conclusions in the

area of its expertise.” Cable Commc’ns Bd.,

356 N.W.2d at 668

.

       In its 2015 order, the MN board concluded that Dr. Everett had violated the 2011

order and

Minn. Stat. § 147.091

, subd. 1(f) (2014), which prohibits “[v]iolating . . . an

order of the board . . . which relates to the practice of medicine.” On the basis of the

statutory violation, the MN board concluded that it was authorized to take disciplinary

action under

Minn. Stat. § 147.141

 (2014). That statute provides that, when a licensed

physician commits a violation of specified statutes, including section 147.091, “[the board]

may . . . revoke the [physician’s] license.”

Minn. Stat. § 147.141

. In addition, the 2011

order provided that, in the event Dr. Everett violated the order, “[a]t the hearing, the Board

will determine whether to impose additional disciplinary action, including additional

conditions or limitations on [Dr. Everett]’s practice, or suspension or revocation of [Dr.

Everett]’s license.”

       Dr. Everett argues that the MN board acted in an arbitrary and capricious manner

by revoking his license for a minimum of ten years, which “amounts to a lifetime ban”

because Dr. Everett is 80 years old. He argues that the MN board’s decision to revoke his

license for ten years is “inexplicable” because his violations over the past 13 years were


                                             11
“‘technical’” and because “[h]istorically, license revocation has been reserved for the most

egregious personal and professional misconduct.”

               [A]n agency ruling is arbitrary and capricious if the agency
              (a) relied on factors not intended by the legislature; (b) entirely
              failed to consider an important aspect of the problem;
              (c) offered an explanation that runs counter to the evidence; or
              (d) the decision is so implausible that it could not be explained
              as a difference in view or the result of the agency’s expertise.

Citizens Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of Comm’rs,

713 N.W.2d 817, 832

 (Minn. 2006). In In re Med. License of Friedenson, the MN board permanently revoked

a physician’s license for failing to wear gloves when performing patient examinations and

making sexual advances on patients.

574 N.W.2d 463

, 466–67 (Minn. App. 1998), review

denied (Minn. Apr. 30, 1998). The physician argued that the revocation of his license “was

arbitrary and capricious given [his] ‘technical’ violations in the context of his long career.”

Id.

 at 467–68. This court affirmed, concluding that “the board acted well within its

discretion by permanently revoking [the physician’s] medical license.”

Id. at 468

.

       While we appreciate the seriousness of Dr. Everett’s circumstances and the harsh

reality imposed by the MN board’s revocation, we conclude that the MN board’s decision

to revoke Dr. Everett’s license was reasonable because the “supervising physician

requirement was critical to ensuring the public was adequately protected.” The MN board’s

decision to revoke Dr. Everett’s license had a rational connection to his conduct. See

Review of 2005 Adjustment of Charges,

768 N.W.2d at 120

. We therefore conclude that

the MN board did not abuse its discretion or act arbitrarily or capriciously when it revoked

Dr. Everett’s license.

12
Due-process rights

Before Dr. Everett’s hearing, the MN board provided him written notice of his

alleged noncompliance with the 2011 order. The identified noncompliance included only

his failure to secure a new approved supervising physician as required by the 2011 order.

But the committee submitted an affidavit stating that “[i]n February 2015, the Board

received a new complaint alleging that Dr. Everett failed to engage in proper prescribing

practices of controlled substances,” and, at the hearing, counsel for the committee

referenced the February 2015 complaint twice. First, counsel stated that Dr. Everett’s

continued practice without a supervising physician was “even more concerning to the

Committee given that during this unsupervised time frame, the Board . . . received a new

complaint concerning Dr. Everett . . . which alleges that he has engaged in inappropriate

prescribing of controlled substances.” Second, counsel stated that, during the unsupervised

time frame, the MN board “received a complaint concerning [Dr. Everett’s] prescribing

practices. That complaint was purposely not included in the materials because it is still in

process and being evaluated and investigated . . . .” In its 2015 order, the MN board referred

to the new complaint as follows: “In February 2015, the Board received a new complaint

alleging that [Dr. Everett] failed to engage in proper prescribing practices of controlled

substances.”

Dr. Everett argues that the MN board violated his due-process rights by considering

the complaint because no evidence was presented on the complaint and he did not have an

opportunity to address the allegations in it. “A license to practice medicine is a property

right deserving constitutional protection, including due process.” Humenansky v. Minn. Bd.

13
of Med. Exam’rs,

525 N.W.2d 559, 566

 (Minn. App. 1994), review denied (Minn. Feb. 14,

1995). Due-process protections require, among other things, “reasonable notice” and “a

timely opportunity for a hearing.”

Id.

 at 565 (citing Goldberg v. Kelly,

397 U.S. 254

, 267–

68,

90 S. Ct. 1011, 1020

 (1970)). The MN board argues that it referenced the complaint

only to “provid[e] context for the importance of the supervising physician

requirement . . . and the Committee’s concerns with [Dr. Everett’s] violation of that

requirement.”

       We reject Dr. Everett’s due-process arguments. Dr. Everett did not object to the MN

board’s consideration of the February 2015 complaint at the hearing; he merely argued that

the allegations in the complaint were untrue. Appellate courts generally only will consider

issues that were presented and considered below. See In re Stadsvold,

754 N.W.2d 323, 327

 (Minn. 2008) (declining to address zoning issue that “was not presented to or

considered by the Board [of Adjustment]” (citing Thiele v. Stich,

425 N.W.2d 580, 582


(Minn. 1988))). Although Dr. Everett appeared without counsel at his hearing, he was not

relieved of his obligation to preserve arguments for appeal. See Thorp Loan & Thrift Co.

v. Morse,

451 N.W.2d 361, 363

 (Minn. App. 1990) (declining to address pro se appellant’s

argument raised for first time on appeal, stating that “[w]hen an appellant acts as attorney

pro se, appellate courts are disposed to disregard defects in the brief, but that does not

relieve appellants of the necessity of providing an adequate record and preserving it in a

way that will permit review” (citing Noltimier v. Noltimier,

280 Minn. 28, 29

157 N.W.2d 530, 531

 (1968))), review denied (Minn. Apr. 13, 1990).




                                            14
       Moreover, the MN board did not implicate Dr. Everett’s due-process rights by its

finding that it had “received a new complaint alleging that [Dr. Everett] failed to engage in

proper prescribing practices of controlled substances.” Cf. Humenansky,

525 N.W.2d at 566

 (concluding that physician’s protected interest in medical license was not implicated

by investigatory proceeding because physician “face[d] no potential discipline until the

board beg[an] formal adjudicatory proceedings”). The MN board made no finding that Dr.

Everett had “failed to engage in proper prescribing practices of controlled substances.” The

MN board instead concluded that Dr. Everett had violated the terms of the 2011 order, and

substantial evidence supports that conclusion.

       Affirmed.




                                             15

Reference

Status: Unpublished