Friedman v. Kansas State Bd. of Healing Arts

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,921

AMIR FRIEDMAN, M.D.,
Appellant,

v.

KANSAS STATE BOARD OF HEALING ARTS,
Appellee.


SYLLABUS BY THE COURT


1.
K.S.A. 2011 Supp. 65-2838(a) grants the Kansas State Board of Healing Arts
jurisdiction to implement a disciplinary proceeding against a person who was a licensee
of the Board practicing under the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., at the
time of the alleged misconduct. Jurisdiction does not depend on the status of a person's
license on the date a disciplinary proceeding is filed.

2.
Where an appellant fails to brief an issue, that issue is waived or abandoned.

3.
The burden is on a party to designate a record sufficient to present its facts and
arguments to the appellate courts and to establish its claims. Under Supreme Court Rule
6.02(a)(4) (2012 Kan. Ct. R. Annot. 38), when facts are necessary to an argument, the
record must supply those facts, and a party relying on those facts must provide an
appellate court with a specific citation to the point in the record where the facts can be
verified. The court may presume that a factual statement made without a reference to
volume and page number has no support.
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4.
A failure to support an argument with pertinent authority or to show why it is
sound despite a lack of supporting authority or in the face of contrary authority is akin to
failing to brief an issue. Therefore, an argument that is not supported with pertinent
authority is deemed waived and abandoned. Further, a point raised incidentally in a brief
and not argued therein is also deemed abandoned.

5.
An amendment to K.S.A. 77-621(c)(7) found in L. 2009, ch. 109, sec. 28, that
became effective on July 1, 2009, does not apply retroactively, meaning the amendment
only applies in those cases where an agency's action became final after July 1, 2009.

6.
If an agency action became final before July 1, 2009, an appellate court applying
K.S.A. 77-621(c)(7) determines if an agency's findings of fact are supported by evidence
that is substantial when viewed in light of the record as a whole. Under this standard,
substantial competent evidence is that which possesses both relevance and substance and
provides a substantial basis of fact from which the issues can be reasonably determined.
In examining the record as a whole for this substantial evidence, an appellate court views
all the evidence in a light most favorable to the prevailing party, does not reweigh
competing evidence or assess the credibility of witnesses, must accept all evidence and
inferences that support or tend to support the findings as true, and must disregard all
conflicting evidence.

Appeal from Shawnee District Court; CHARLES E. ANDREWS, JR., judge. Opinion filed February
15, 2013. Affirmed.

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Jeffrey A. Bullins, of Holbrook & Osborn, P.A., of Overland Park, argued the cause, and Amir
Friedman, M.D., was on the briefs appellant pro se.

Zachary J.C. Anshutz, associate general counsel, Kansas State Board of Healing Arts, argued the
cause, and Wm. Scott Hesse, general counsel, of the same office, was on the brief for appellee.

The opinion of the court was delivered by

Per Curiam: In this appeal, Dr. Amir Friedman asks us to reverse an order of the
Kansas State Board of Healing Arts (Board) in which the Board revoked his license to
practice medicine and surgery in the state of Kansas. Friedman presents several issues,
including a threshold question of whether the Board had jurisdiction to initiate a
revocation proceeding after Friedman's license expired. On this threshold issue, we hold
the Board had jurisdiction to revoke Friedman's license to practice medicine and surgery
because Friedman was practicing medicine under the authority of a license issued by the
Board when he committed the misconduct at issue in the revocation proceeding. We also
reject Friedman's other arguments, concluding he effectively abandoned a due process
argument by failing to adequately brief it and he failed to establish a lack of substantial
evidence to support the administrative hearing officer's initial order and the Board's final
order. We, therefore, affirm the Board's order and the district court's decision upholding
that order.

PROCEDURAL BACKGROUND

In 1999, the Board issued a medical license to Friedman. For several years,
Friedman paid the fees for the annual renewal of his license. Then, in March 2006,
Friedman requested that the Board change his license designation to inactive status, and
he did not pay the annual registration fee that was due by June 30, 2006.

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On July 31, 2006, the Board filed a formal disciplinary action against Friedman
that resulted in an order of the Board revoking his license. In its petition, the Board
alleged Friedman was a licensee of the Board who committed acts in violation of K.S.A.
65-2836 and K.S.A. 65-2837 "while engaged in a regulated profession as a medical
doctor in the State of Kansas pursuant to K.S.A. 65-2801 et seq."

Friedman responded to the Board's petition by seeking dismissal of the action for
lack of subject matter jurisdiction. In his motion to dismiss, Friedman argued the Board
could not initiate the action against him because his license was expired on the date the
petition was filed.

An administrative hearing officer, who is referred to throughout the record as the
presiding officer, denied Friedman's motion. Friedman appealed that decision to the
district court, and the district court dismissed the appeal because Friedman had failed to
exhaust his administrative remedies. The district court's decision was affirmed by this
court on appeal in Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 755, 199
P.3d 781 (2009) (Friedman I).

While that appeal was pending, the administrative action continued. In an
amended petition, the Board alleged five counts of misconduct that arose from
Friedman's care of patients. These allegations included claims that Friedman falsified
medical records. In a sixth count, the Board alleged Friedman surrendered hospital
medical privileges while under investigation. After discovery, the presiding officer
conducted an evidentiary hearing regarding the Board's allegations. Subsequently, the
presiding officer issued an order in which he found that the Board had established the
alleged violations and that Friedman's license should be revoked.

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Friedman then petitioned the Board for review of the presiding officer's initial
order, and the Board granted the request. After a date for the review hearing was set,
Friedman requested a continuance because he did not have a physician who could
provide coverage for his patients. The Board denied the motion to continue but did allow
Friedman to participate by telephone. Friedman alleges that he was called away from the
hearing before he presented his oral argument and "the Board agreed that it would
reschedule the hearing to provide for oral argument yet never did so."

On October 14, 2008, the Board issued a final order in which it stated in part that
based on the "agency record before it, and after hearing the arguments of the respondent
pro se as well as counsel for the Board, the Board adopts the findings of fact, conclusions
of law and order as stated in the Initial Order." The Board agreed that Friedman's license
to practice medicine should be revoked.

Friedman filed a petition in district court seeking judicial review of the Board's
order. Following proceedings in district court, the court affirmed the Board's order, and
Friedman appealed to the Court of Appeals. His appeal was transferred to this court
pursuant to K.S.A. 20-3018(c).

As a result of Friedman's appeal, we will consider the merits of the issue not
reached in Friedman I: Did the Board have jurisdiction to discipline Friedman given that
he was not licensed in Kansas at the time the disciplinary petition was filed? Next, we
consider another overarching issue: Did the Board violate Friedman's right to due
process? Finally, we will discuss the evidence presented regarding each count of the
disciplinary petition, the presiding officer's and the Board's findings of fact and
conclusions of law regarding those allegations, and the district court's analysis of the
Board's order as we discuss Friedman's arguments that there was not substantial evidence
to support the presiding officer's and the Board's orders.
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JURISDICTION

The first of these issues is whether the Board had jurisdiction to initiate the current
disciplinary proceeding against Friedman on July 31, 2006. Friedman contends it did not
because his license expired on June 30, 2006. The Board acknowledges that Friedman's
license was not active at the time the disciplinary petition was filed but asserts it still had
jurisdiction to revoke Friedman's license. The Board presents several arguments in
support of its position, including the one on which we decide the issue, which is that the
Board's jurisdiction does not depend on the status of Friedman's license on the date the
disciplinary petition was filed but rather on the date or dates of the alleged misconduct.

The parties' arguments on this issue are phrased in terms of subject matter
jurisdiction. Our authority to consider whether the Board had subject matter jurisdiction
derives from a reading of the Kansas Act for Judicial Review and Civil Enforcement of
Agency Actions, K.S.A. 77-601 et seq. (KJRA), and the Kansas Healing Arts Act, K.S.A.
65-2801 et seq. (Act). The KJRA grants a Kansas court the authority to provide relief
from an administrative agency's action if the agency "acted beyond the jurisdiction
conferred by any provision of law." K.S.A. 77-621(c)(2). This provision applies here
because the Act—the law that Friedman is alleged to have violated and the Board
enforced—specifically provides that "[j]udicial review and civil enforcement of any
agency action under [the Act] shall be in accordance with the [KJRA]." K.S.A. 2011
Supp. 65-2851a(b); see Ryser v. State, 295 Kan. 452, 458, 284 P.3d 337 (2012) (holding
the Board's actions under the Act are subject to the KJRA). Further, the Board's order
revoking Friedman's license is an agency action falling under K.S.A. 65-2812 (charging
the Board with administration of the Act). See K.S.A. 77-602(a) ("'agency' means a state
agency"); K.S.A. 77-602(e) (defining "order" to be an "agency action"); K.S.A. 77-
602(k) (defining "state agency").
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Applying the scope of review provision of the KJRA to the question of whether an
agency has exceeded its jurisdiction—in other words, its statutory authority—requires
interpretation of the statutes establishing and empowering the agency, which in this case
is the Board. Ryser, 295 Kan. at 464. The Board's jurisdiction is defined by the Act, and
this court interprets the Act de novo just as it does all other statutes. Ryser, 295 Kan. at
457, 464; Friedman I, 287 Kan. at 751-52.

In Ryser, we recently considered whether the Act granted the Board jurisdiction to
investigate a Kansas licensed physician's conduct even though the conduct occurred in
Missouri. Because the Act did not explicitly answer the question, we applied rules of
statutory interpretation to divine the legislative intent. Ultimately, we answered the
question by interpreting K.S.A. 2011 Supp. 65-2838(a) and K.S.A. 2011 Supp. 65-
2837(e) and determining that the physician was a "licensee" as defined in the Act who
was practicing under the Act when the misconduct occurred; hence, we held the Board
had jurisdiction to take disciplinary action. Ryser, 295 Kan. at 465-68.

While Ryser provides us guidance in answering the question raised by Friedman, it
does not directly answer the question. Nor does the Act; there is no provision that
explicitly addresses whether the Board's jurisdiction depends on the status of a license
when a disciplinary action is filed. Consequently, as we did in Ryser, we must apply rules
of statutory construction to discern the answer from what the Act does say. In explaining
those rules, we stated:

"We first attempt to ascertain legislative intent by reading the plain language of
the statutes and giving common words their ordinary meanings. Padron v. Lopez, 289
Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, we do
not speculate as to the legislative intent behind it and will not read into the statute
something not readily found in it. But when the statute's language or text is unclear or
8



ambiguous, we 'employ canons of construction, legislative history, or other background
considerations to divine the legislature's intent and construe the statute accordingly.
[Citation omitted.]' Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan.
553, 564-65, 276 P.3d 188 (2012)." Ryser, 295 Kan. at 458.

Also in Ryser, because there was an ambiguity that arose from the lack of an
explicit answer in the statute, we examined the purpose and policy of the Act and
recognized that the State of Kansas has broad authority to regulate the practice of
medicine, the Act implements that authority, and the Board administers the Act. Ryser,
295 Kan. at 464. In the Act, the Kansas Legislature explained that the ultimate purpose is
"that the public shall be properly protected against unprofessional, improper,
unauthorized and unqualified practice of the healing arts and from unprofessional
conduct by persons licensed to practice under this act." K.S.A. 65-2801.

Given this purpose, it is significant that other states, as does Kansas, allow
endorsement or reciprocal licensing of health care providers. The Kansas statute, for
example, provides that an applicant is "entitled" to an "endorsement" license upon
presenting proof that the applicant is duly licensed in another state following passage of
an examination that was "at least equal in quality to the examination required in this
state" and that the license "has never been limited, suspended or revoked [or] that the
licensee has never been censured or had other disciplinary action taken." K.S.A. 65-2833.
Hence, a Kansas licensee can obtain a license in another state and, once that license is
obtained, allow the Kansas license to expire. Then, if Friedman's interpretation of the Act
is correct, the former Kansas licensee could use the fact that the license had been allowed
to expire as a shield from disciplinary action and, in doing so, avoid the consequences of
misconduct committed before the Kansas license expired. Such an interpretation would
be contrary to the purpose of the Act. Friedman disputes the application of this public
policy to his case because he asserts there is no showing in the record that he attempted to
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circumvent the policy. Such a showing is not necessary because, regardless of intent, the
purpose of the Act would be to protect the public by disciplining a licensee for
misconduct.

Even with this stated policy, however, there must be a provision in the statute that
would allow the Board to assert its jurisdiction over Friedman. That provision is K.S.A.
2011 Supp. 65-2838(a), which provides that the Board "shall have jurisdiction of
proceedings to take disciplinary action authorized by K.S.A. 65-2836 and amendments
thereto against any licensee practicing under [the Act]." The phrase that is significant to
the issue before us is "licensee practicing" under the Act. The other term "licensee" is
defined in the Act to include "persons issued a license, permit or special permit pursuant
to [the Act]." K.S.A. 2011 Supp. 65-2837(e). This definition is worded in the past
tense—persons issued a license—rather than present tense—persons who have a license.
Thus, the focus is not on the status of the licensee at the time of the disciplinary
proceeding. Additionally, the term "practicing" in K.S.A. 2011 Supp. 65-2838(a) makes
the critical time period the point at which the misconduct occurs.

In light of that language and the Board's power to protect the public, we hold
K.S.A. 2011 Supp. 65-2838(a) grants the Board jurisdiction to implement a disciplinary
proceeding if the person was a licensee of the Board practicing under the Act at the time
of the alleged misconduct. Jurisdiction does not depend on the status of a person's license
on the date a disciplinary proceeding is filed.

Applying this holding to this case, it is undisputed that (1) the Board had issued a
license to Friedman pursuant to the Act and (2) the acts that gave rise to the disciplinary
proceeding in this case occurred while Friedman was a licensee practicing under the Act.
Because these two facts are undisputed, we conclude the Board had jurisdiction to initiate
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the disciplinary proceeding against Friedman and to revoke his license to practice
medicine.

DUE PROCESS

The other overarching issue stated by Friedman in his appellate brief is whether
the "Board violated Petitioner's due process rights by denying his opportunity to present
his case in its Review Hearing." Even though Friedman stated this issue at the beginning
of his brief, he did not separately argue the issue in the body of his brief.

In the Board's brief, it asserts that Friedman waived this issue by not presenting
argument or caselaw support for his contention. The Board cites, among other authorities,
McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002),
in which this court held that "'[w]here the appellant fails to brief an issue, that issue is
waived or abandoned.' [Citations omitted.]" Friedman responds to this argument in his
reply brief by simply asserting: "Under K.S.A. 77-527(e), Appellant had a due process
right to present oral argument to the Board's hearing panel of experts but was not
permitted to do so." He asserts that he preserved this issue by stating that he had been
called away before he could present his argument, the Board agreed to schedule a time
for his argument, and yet the Board issued its order without giving him the opportunity to
complete the hearing.

There are several problems with Friedman's argument. First, the accuracy of
Friedman's factual contention is disputed as reflected by the Board's final order, which
indicates the Board heard "the arguments of the respondent pro se."

Second, Friedman has not cited any factual support for his contention that the
Board agreed to schedule subsequent arguments. He merely cites to the point in the
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record where he made the same assertion before the district court. His assertion caused
the district court to consider the argument, but the court rejected the claim and concluded
Friedman "was provided more than a meaningful opportunity to be heard throughout the
agency proceedings." Our rules of procedure are not as forgiving as was the district judge
when he accepted Friedman's assertion. "'It is well-settled that the burden is on a party to
designate a record sufficient to present its points to the appellate court and to establish its
claims.' [Citation omitted.]" Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289
Kan. 1262, 1275, 221 P.3d 588 (2009). When facts are necessary to an argument, the
record must supply those facts and a party relying on those facts must provide an
appellate court with a specific citation to the point in the record where the fact can be
verified. See Supreme Court Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. 39) (appellant's
brief must include concise statement of facts material to disposition of appeal and "facts
included in the statement must be keyed to the record on appeal by volume and page
number;" the appellant court "may presume that a factual statement made without a
reference to volume and page number has no support"). Friedman has not met this
burden.

Third, even if we were to overlook this factual omission because the district court
considered the issue, Friedman fails to present any authority establishing a due process
right to present an oral argument. The only citation he provides is K.S.A. 77-527, which
outlines the procedure to be followed when an agency reviews an initial order. The
portion of that statute regarding oral argument, K.S.A. 77-527(e), states that the agency
head "may afford each party an opportunity to present oral argument." (Emphasis added.)
This court has stated that the word "may" is usually "'employed to imply permissive,
optional or discretional, and not mandatory action or conduct.' [Citations omitted.]" State
ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 642, 822 P.2d 1033 (1991). Friedman
offers no appellate argument regarding why a different meaning should be given the word
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in this context or, more generally, why the provision grants him a due process right to
present an oral argument.

Finally, even though Friedman cited several other due process concerns in his
arguments to the district court and has sprinkled his appellate arguments with references
to evidentiary and discovery rulings that resulted in the exclusion of evidence proffered
by Friedman, he has not developed those arguments before us. For example, he does not
explain why the rulings were erroneous or why the rulings resulted in a due process
violation. A failure to support an argument with pertinent authority or to show why it is
sound despite a lack of supporting authority or in the face of contrary authority is akin to
failing to brief the issue. Therefore, an argument that is not supported with pertinent
authority is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292
Kan. 885, 889, 259 P.3d 676 (2011); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d
352 (2010). Further, an argument raised incidentally in a brief and not argued therein is
also deemed abandoned. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan.
60, 71, 274 P.3d 609 (2012).

Friedman has failed to support his due process argument with a factual record or
legal authority and, as a result, has effectively abandoned this due process issue on
appeal. Consequently, his due process argument will not be further considered.

SUBSTANTIAL EVIDENCE

Finally, Friedman identifies two issues that address the nature of the evidence on
which the presiding officer and the Board relied. He contends: (1) "The Presiding
Officer's order was biased because it was not based on material and reliable evidence,"
and (2) "The Board's order was not supported by substantial competent evidence in light
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of the record as a whole." After listing these as separate issues, Friedman discusses the
two issues together.

In doing so, Friedman cites to only one scope of review provision provided for in
the KJRA, K.S.A. 77-621(c)(7). This provision allows a court to grant relief if it is
established that the agency's action "is based on a determination of fact, made or implied
by the agency, that is not supported by evidence that is substantial when viewed in light
of the record as a whole." Friedman's issue relating to the Board's order is phrased in
terms that echo this standard of review. As to the other issue regarding the presiding
officer's order, Friedman uses the terms "biased" and "material and reliable evidence"—
terms that do not echo any of the eight scope of review provisions in K.S.A. 77-621(c).
Because of Friedman's failure to identify the scope of review or separately brief the issue,
the Board argues that Friedman has also abandoned the issue regarding the presiding
officer's order. In his reply brief, Friedman asserts he has argued the issue by discussing
the evidence of the case. He further notes:

"An agency's action is 'arbitrary and capricious' if it is unreasonable or 'without
foundation in fact.' Pork Motel, Corp. v. Kansas Dept. of Health and Environment, 234
Kan. 374, 673 P.2d 1126 (1983). . . . [T]he hearing officer failed to apply the law; relied
on contradictory evidence; misrepresented Appellant's letters; capriciously discredited
expert witnesses; and disregarded the fact that the Board withheld essential medical
records from its own expert witness in order to bolster its own case."

Even with this additional argument, Friedman does not specify which of the scope
of review provisions of K.S.A. 77-621(c) he asserts as a basis for appellate review. As we
have previously noted,

"Such specification is important because a court reviewing an administrative agency's
action may grant relief only if it determines one or more of those provisions is violated.
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K.S.A. 77-621(c); cf. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 406-07, 204
P.3d 562 (2009) ('it is a better practice for the language in the petition for judicial review
to mirror the statutory basis for the specific relief requested.'); Pittsburg State University
v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 45, 36 P.3d 853 (2001), rev. denied 273
Kan. 1036 (2002) ('specificity in pleading under the KJRA is necessary to give focus to
the asserted agency error and to give the reviewing court a proper understanding of the
type of relief sought')." Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan.
690, 697, 216 P.3d 170 (2009).

The lack of specification is particularly problematic in this case because
Friedman's arguments could fall into multiple provisions of K.S.A. 77-621(c). Friedman's
use of the phrase "arbitrary and capricious" in his reply brief appears to invoke K.S.A.
77-621(c)(8), which allows a court to grant relief if the agency action is "unreasonable,
arbitrary or capricious." This court has recognized that this provision "can cover a
number of things." Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232,
275, 75 P.3d 226 (2003) (Blue Cross). Sorting through the various possibilities, in Blue
Cross we determined an argument that findings are arbitrary and capricious because they
are unreasonable and without foundation in fact should be analyzed under the standard
stated in K.S.A. 77-621(c)(7) because the gravamen of such an issue is whether the
evidence is substantial. Blue Cross, 276 Kan. at 275. Similarly, in this case Friedman's
arguments address the weight and credit to be given the evidence, which is essentially the
same argument as would be brought under the substantial evidence standard of review in
K.S.A. 77-621(c)(7). Plus, the Board adopted the presiding officer's findings, meaning
the analysis of one order is an analysis of the other. Consequently, we will examine
whether the findings of both the Board and the presiding officer are supported by
evidence that is substantial when viewed in light of the record as a whole.

In citing to the substantial evidence standard in K.S.A. 77-621(c)(7), Friedman
and the Board rely on a version of the statute that was adopted after the Board's final
15



order revoking Friedman's license. At the time of the Board's final order in October 2008,
K.S.A. 77-621(c)(7) required review of the agency's determination for evidence "that is
substantial when viewed in light of the record as a whole." Utilizing this standard, an
agency's decision is upheld if there is substantial evidence that supports the agency's
finding. This is true even if the record contains evidence supporting contrary findings.
Redd v. Kansas Truck Center, 291 Kan. 176, 183-84, 239 P.3d 66 (2010).

A different standard was adopted by the Kansas Legislature after the Board's order
was filed in this case. L. 2009, ch. 109, sec. 28. Through these amendments, which were
effective July 1, 2009, the KJRA requires a court to review all evidence supporting and
contradicting the Board's findings, the administrative hearing officer's credibility
determinations, and the agency's explanation of why the evidence supports its findings.
Redd, 291 Kan. at 182.

Friedman seeks application of this new standard, particularly focusing on the
requirement that we consider evidence contrary to the presiding officer's and the Board's
findings. This new standard does not apply in this case, however, because we have held
that the 2009 amendments do not apply retroactively. Rather, the amendments only apply
in those cases where the agency's action became final after July 1, 2009, when the
amendments took effect. Redd, 291 Kan. at 183. Therefore, Friedman's request for review
of the Board's October 2008 order must be evaluated under the former statutory standard
of whether a determination of fact is supported by evidence that is substantial when
viewed in light of the record as a whole. This statutorily defined standard of review
applies to both the district court's and this court's review of the Board's action. See Frick
Farm Properties, 289 Kan. at 697. Friedman, as the party asserting the invalidity of the
Board's order, bears the burden of establishing that the order is invalid. K.S.A. 77-
621(a)(1) ("The burden of proving the invalidity of agency action is on the party asserting
invalidity."); Frick Farm Properties, 289 Kan. at 704.
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In past decisions, we have explained the substantial evidence standard of the
version of K.S.A. 77-621(c)(7) that was in effect prior to July 1, 2009, by stating:

"Substantial competent evidence possesses both relevance and substance and provides a
substantial basis of fact from which the issues can be reasonably determined. [Citation
omitted.] An appellate court views all the evidence in a light most favorable to the
prevailing party, and it does not reweigh competing evidence or assess the credibility of
witnesses. [Citation omitted.] This court must accept all evidence and inferences that
support or tend to support the findings as true, and this court must disregard all
conflicting evidence. [Citations omitted.]" Frick Farm Properties, 289 Kan. at 709-10.

Contrary to this standard of review, Friedman essentially asks us to focus on the
evidence that conflicts with the Board's findings rather than on the evidence that tends to
support the findings. Further, he asks us to reweigh and discredit the Board's evidence
even though we are prohibited from doing so under our standard of review. This is
especially critical in this case because the presiding officer explicitly found much of the
evidence on which Friedman relies, including large portions of Friedman's own
statements, to lack credibility.

Applying our standard of review reveals substantial evidence to support the
presiding officer's and the Board's findings, although the evidence supporting the Board's
findings is disputed. This conclusion is more fully explained by a review of the evidence
as to each of the six counts alleged in the amended disciplinary petition.

Count I

Count I relates to Friedman's care of an obstetrical patient, who we will refer to as
Patient I. In the amended petition, the Board alleged that Friedman had a physician-
17



patient relationship with Patient I and had provided patient care to her throughout her
pregnancy. Patient I came to Coffeyville Regional Medical Center (CRMC) at
approximately 2 a.m. on July 9, 2004, in active labor.

In the amended petition, the Board alleged that when Patient I came to the hospital
Friedman was in Tulsa, Oklahoma, and had not provided CRMC with the name of a
covering physician. The Board also alleged that Friedman arrived at CRMC after the
baby was delivered, but Friedman's "subsequent documentation in Patient [I]'s CRMC
medical record indicates that he was present for the delivery of Patient [I]'s baby, when in
fact he was not present." These actions, according to the Board, violated K.S.A. 65-
2836(b), which provides in part:

"A licensee's license may be revoked . . . upon a finding of the existence of any
of the following grounds:
. . . .
"(b) The licensee has committed an act of unprofessional or dishonorable
conduct or professional incompetency, except that the board may take appropriate
disciplinary action or enter into a non-disciplinary resolution when a licensee has
engaged in any conduct or professional practice on a single occasion that, if continued,
would reasonably be expected to constitute an inability to practice the healing arts with
reasonable skill and safety to patients or unprofessional conduct as defined in K.S.A. 65-
2837, and amendments thereto." K.S.A. 2011 Supp. 65-2836(b).

The Board cited to five paragraphs of K.S.A. 65-2837 as the basis for the claim of
professional incompetency and unprofessional conduct. Those provisions state:

"(a) 'Professional incompetency' means:
. . . .
(2) Repeated instances involving failure to adhere to the applicable standard of
care to a degree which constitutes ordinary negligence, as determined by the board.
18



(3) A pattern of practice or other behavior which demonstrates a manifest
incapacity or incompetence to practice the healing arts.
"(b) 'Unprofessional conduct' means:
. . . .
(17) The use of any false, fraudulent or deceptive statement in any document
connected with the practice of the healing arts including the intentional falsifying or
fraudulent altering of a patient or medical care facility record.
. . . .
(24) Repeated failure to practice healing arts with that level of care, skill and
treatment which is recognized by a reasonably prudent similar practitioner as being
acceptable under similar conditions and circumstances.
(25) Failure to keep written medical records which accurately describe the
services rendered to the patient, including patient histories, pertinent findings,
examination results and test results." K.S.A. 2011 Supp. 65-2837.

To prove the claims, the Board called fact witnesses—nurses and physicians—to
explain what happened after Patient I's arrival at CRMC. The Board also presented expert
testimony regarding the standard of care from Jonathan Daniels, M.D., who is certified
by the American Board of Obstetrics and Gynecology.

Friedman defended the claims regarding Patient I by asserting that he maintained
staff privileges at CRMC as a courtesy staff member rather than as an active member of
the medical staff and did so because he lived in Independence, Kansas, which is 47
minutes from CRMC. According to Friedman, under CRMC's bylaws and the federal
Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd
(2006), and accompanying regulations, CRMC was obligated to provide physician care
for his patients because he lived more than 30 minutes from the hospital. He asserted that
at the time he applied for courtesy staff privileges, he designated Dr. Stephen Miller as
his active staff designee to provide "standing coverage." Because of these circumstances,
Friedman contended he could not be held responsible for any adverse outcomes related to
19



a delay in treatment because CRMC should have called an active staff member to care for
Patient I. He, however, did not present an expert to counter the expert opinion testimony
presented by the Board that Friedman failed to meet the applicable standard of care.

As to Patient I, the Board found:

"1. The Respondent provided obstetric services to Patient No. I. On July 8, 2004,
the Respondent called Coffeyville Regional Medical Center (CRMC) in Coffeyville,
Kansas, to advise that Patient No. 1 would be admitted for an induction on July 9, 2004.
"2. At the time the Respondent called CRMC to inform them that Patient No. I
would be seen for an induction on July 9, 2004, he advised that he was in Tulsa,
Oklahoma, and he provided some Tulsa phone numbers to CRMC. . . .
"3. In the early morning hours of July 9, 2004, Patient No. I presented herself at
CRMC. Patient No. I was in labor and the Respondent was contacted.
"4. The Respondent immediately began driving toward Coffeyville, Kansas, and
attempted to manage the care of Patient No. I via cell phone.
"5. During Patient No. I's labor, the nursing staff at CRMC had concerns
regarding the baby developing signs of fetal distress. Ultimately, another physician was
contacted to deliver Patient No. I's baby.
"6. At no time did the Respondent advise CRMC that he was not available for
delivery of the baby nor did the Respondent advise CRMC to contact another physician
because he was too far away.
"7. The Respondent appeared at CRMC shortly after the other physician
delivered the baby.
"8. Dr. Jonathan Daniels testified that the Respondent did not adhere to the
applicable standard of care. Dr. Daniels testified that the Respondent attempted to
manage the care of Patient No. I via phone and that he should have 'immediately turned
her care over to another physician.'
"9. Regarding Respondent's assertion that he only had courtesy privileges at
CRMC, Dr. Daniels still was of the opinion that regardless of the courtesy status of the
Respondent's privileges, the Respondent did not meet the standard of care because he did
not have a specific physician covering for this patient.
20



"10. The actions of the Respondent also belie his assertion that as a courtesy
physician he did not have to have another physician covering him. The actions of the
Respondent clearly show that he was the only physician providing medical care to Patient
No. I until it was necessary for CRMC to contact another physician because the
Respondent was not available.
"11. Dr. Daniels also testified that the Respondent's medical notes were
misleading. The notes indicate that the Respondent was present and providing care to
Patient No. I.

"Conclusions of Law

"1. The action of the Respondent regarding Patient No. I constitutes a failure to
adhere to the applicable standard of care. The Respondent's medical records were
misleading. Pursuant to K.S.A. 65-2836 and K.S.A. 65-2837, departure from the
applicable standard of care constitutes ordinary negligence. The Respondent's medical
records were misleading and constitute unprofessional conduct.
"2. The Respondent's arguments that he was never contacted by CRMC and that
it was only when he called CRMC that he learned that Patient No. I had been admitted is
totally without merit. The Respondent would have the Presiding Officer believe that he
was sitting around his residence in Independence, Kansas, during the early morning hours
of July 9, 2004, and that he contacted CRMC on a mere whim to see if any of his patients
appeared for treatment. This defies logic and is not credible.
"3. The Board has established that the Respondent did not adhere to the
applicable standard of care and that his medical records were misleading."

After Friedman appealed the Board's order pursuant to the KJRA, the district court
concluded there was substantial evidence to support the Board's findings. The court noted
that Friedman's "story regarding Count I was inconsistent with the facts and . . . not
always logical." The court concluded that the evidence boiled down to a credibility
determination, which the presiding officer had resolved against Friedman. We agree with
the district court's determination for several reasons.

21



First, Friedman does not fully address the Board's rationale for its decision, which
was based on two conclusions: (1) Friedman's care deviated from the standard of care
and (2) his medical records were misleading. In his appellate brief, Friedman focuses on
the first conclusion but does not address the second. Friedman's failure to address the
Board's second conclusion means he has abandoned any arguments relating to it. See
Superior Boiler Works, 292 Kan. at 889; Berriozabal, 291 Kan. at 594. We, therefore,
accept that Friedman violated K.S.A. 65-2837(b)(25), which provides it is unprofessional
conduct to fail "to keep written medical records which accurately describe the services
rendered to the patient, including patient histories, pertinent findings, examination results
and test results."

Second, relating to the standard of care rationale, Friedman responds to only one
of the two deviations testified to by the Board's expert, Daniels. Daniels' testimony is
succinctly summarized in his written report, in which he wrote:

"Although Dr. Friedman was out of town, the nurse was able to contact him by
phone. He then began driving to the hospital in the middle of the night. First he made a
mistake in not arranging for coverage at Coffeyville before leaving the area. Secondly he
used poor judgment in trying to manage the patient by phone while traveling by car.
When first contacted by the nurse he should have immediately made arrangements for
one of the physicians in town to cover for him until he could get there."

Friedman's appellate arguments largely ignore the second deviation.

Third, as the district court found, Friedman's arguments regarding the focus of his
contention—that he was not required to provide notice of coverage—largely devolved
into a credibility contest and the presiding officer clearly stated he discredited Friedman's
evidence. On this point, Friedman's argument begins with several correct premises: He
was a courtesy staff member at CRMC, the bylaws provided for standing coverage for
22



courtesy staff members in certain situations, and the hospital had obligations to follow
federal regulations implemented pursuant to the EMTALA. As to the standing coverage
premise, the CRMC bylaws address coverage issues for courtesy staff members by
stating:

"The Courtesy Medical Staff member shall notify the Administrator of the hospital of
his/her choice of a member of the Active Staff who may be called in the event a patient is
admitted to the hospital and the Courtesy Medical Staff member cannot be reached, or
that such patient should need emergency treatment." (Emphasis added.)

From that point, however, the record does not fully support Friedman's argument.

The first bylaw contingency for calling an active staff member arises if the
courtesy staff member cannot be reached. The evidence regarding whether this
contingency arose was highly disputed. According to the CRMC nurse, she was able to
reach Friedman, who gave orders. Her testimony establishes that Friedman was actively
managing the patient's care as he was driving to the hospital. Friedman argues the nurse's
testimony lacks credibility because his cell phone records do not evidence any calls to or
from Coffeyville until 4:22 a.m., approximately 2 hours after the patient had been
admitted, and that call was initiated by Friedman. The presiding officer considered
Friedman's arguments regarding the discrepancy in the cell phone records and the nurse's
testimony and concluded that Friedman's version of events was unbelievable and defied
logic. The Board and the district court agreed. This conclusion is a reasonable inference
based on the evidence presented, including the Board's findings that Friedman had given
the hospital contact numbers in Tulsa where he could be reached—meaning his cell
phone records were not dispositive—and the nurse's testimony that "in one of the
conversations with him regarding the order for the antibiotics . . . he said I'm in Tulsa, I'm
on route, or something to that effect, I'm on my way."
23




As we have discussed, the standard of review that applies in this case does not
allow us to reweigh credibility. Frick Farm Properties, 289 Kan. at 697. While highly
disputed, there is substantial evidence that the nurse was in communication with
Friedman.

As to the second bylaw condition—the existence of an emergency—there is some
evidence that when the nurse recognized an emergency, another physician, Dr. Miller,
assumed the patient's care. Perhaps, as Friedman argues, the nurse should have contacted
Miller at an earlier point in time. Nevertheless, the possibility of negligence by the nurse
and hospital does not mean that Friedman did not also deviate from the standard of care
as Daniels opined.

Friedman did not counter Daniels' expert testimony with his own expert. Instead,
in responding to Daniels' opinion that Friedman's actions caused confusion that led to a
delay in treatment, Friedman argues he was not responsible for the confusion. He relies
on the fact that when he applied for courtesy staff privileges he designated Miller as the
active staff member who could be called to cover his patients, and he argues CRMC
should have known this. Friedman's designation of Miller is supported by the record. But
the record also reveals confusion regarding whether that coverage was still in effect at the
time of Patient I's care. Miller testified he had been designated when Friedman first
applied for privileges, but in July 2004 when Patient I was admitted, the arrangement was
that he would cover for Friedman if Friedman "would check out and, you know, let me
know if he's gone."

Friedman's own statements to the Board's investigator support the inference from
Miller's testimony that he was not always on call to cover Friedman's patients. In his
initial response letter dated January 20, 2006, Friedman wrote:
24




"I informed the nurse on L+D that I was out of town, and had signed out for the evening
to a covering physician where I am an active member. I informed the nurse that I would
drive in, but that during this time, if she could call Dr. [Daniel] Chappell who generally
provided coverage for me at Coffeyville. She stated that Dr. Miller was right there, and
could cover. Although my relationship with Dr. Miller had been strained, I accepted the
coverage without talking to him directly."

He also noted that the patient

"unexpectedly showed up at Coffeyville for delivery. An obstetrician was present on the
floor, and the nurse involved with the delivery communicated to me that this obstetrician
will cover. If this physician did not want to cover, then he should have stated this to me
directly and I would have had Dr. Chappell cover or the patient transferred."

Then in a letter dated August 4, 2006, Friedman wrote that he informed the nurse "he was
out of town and that the covering physician had to be called, that I will come post haste
but since my travel will take some time, the covering physician Dr. Chappell from that
locale was responsible for management."

Given Friedman's changing statements regarding whether Chappell or Miller
should have been called, we have no trouble concluding there is substantial evidence
supporting Daniels' conclusion that Friedman's actions caused confusion. This testimony
substantiates Daniels' expert opinion that Friedman deviated from the standard of care by
not making it clear when he was called that the patient's care should be turned over to
another physician.

In Friedman's reply brief, he argues this opinion is not "substantial" because
Daniels did not take EMTALA regulations, CRMC's bylaws, or hospital policies into
account when forming his opinion. Contrary to this argument, in Daniels' report he
25



acknowledged Friedman's position that he did not have to arrange coverage because of
his courtesy status. Daniels concluded Friedman's position was undercut by Friedman's
own actions of attempting to manage the patient care from his car. Hence, even if Daniels
had not seen the actual language of the bylaw, he was aware of the issue and accounted
for Friedman's position in forming his opinion.

In summary, even though Friedman disputes some of the facts relating to Count I,
under the appropriate standard of review the Board's findings on this count are supported
by evidence that is substantial when viewed in light of the record as a whole.

Count II

Count II relates to the care of Patient II, who was admitted to Mercy Hospital in
Independence, Kansas, on September 8, 2004, for labor induction on Friedman's orders
even though he was performing surgery in another hospital. In the amended petition in
the disciplinary proceeding, the Board alleged Friedman violated K.S.A. 65-2836(b) and
K.S.A. 65-2637(a)(2), (a)(3), and (b)(24), which are quoted above.

The Board made the following findings regarding Friedman's care of Patient II:

"2. The Respondent ordered a Pitocin induction for Patient No. II who was
pregnant at Mercy Hospital. While Patient No. II was induced, the Respondent was
performing elective surgery at Wilson County Hospital in Neodesha, Kansas.
"3. The Respondent ordered the induction of Patient No. II at 8:00 a.m. Patty
Fienen, a registered nurse, was providing care for Patient No. II during the induction. Ms.
Fienen was aware that the Respondent was going to be in surgery, but believed he would
be performing surgeries at Mercy Hospital and not at Wilson County Hospital.
26



"4. During the induction of Patient No. II, the baby experienced deceleration and
after contact was made with the Respondent, he ordered a Cesarean Section for Patient
No. II.
. . . .
"6. During the course of Patient No. II's treatment, Ms. Fienen learned that the
Respondent was performing surgeries not in Mercy Hospital but at Wilson County
Hospital. During the course of preparing Patient No. II for surgery, Nurse Fienen was
directed to get an ultrasound for the baby's fluid and fetal weight.
"7. There is nothing in the record to indicate that any other physician would be
providing medical care for Patient No. II.
"8. Because the Respondent ordered a Cesarean Section, Patient No. II was
prepared for that Cesarean Section even though the Respondent was at Wilson County
Hospital in Neodesha, Kansas, and not at Mercy Hospital in Independence, Kansas."

On appeal, Friedman focuses on evidence that he had coverage and asserts it was
not necessary to have that coverage documented in the medical record. He points out that
Dr. Larry Atwood sent a letter to the Board in defense of Friedman and then testified
regarding the letter at the hearing. The relevant portion of the letter stated: "I was
available to provide coverage for his patient, [Patient II.] Doctor [Soheila] Sohaei was
also available to provide [cesarean]-section coverage for me, as this was our usual
arrangement when I was covering [obstetrics] for Doctor Friedman." On cross-
examination, Atwood clarified that he had agreed to cover that day but he had never been
contacted about Patient II.

Friedman's argument misses a distinction made by Daniels in expressing his expert
opinion that Friedman deviated from the standard of care. Daniels did not focus on
whether there was a physician available to cover but on the delay that would result
because Friedman had not assured that coverage would be readily available in case of an
emergency. Daniels explained that Patient II's history meant she was "just the kind of
patient that will often develop fetal distress and require an emergency Cesarean Section."
27



Because quick action would be required if such an emergency developed, it was, in his
opinion, "very poor judgment" to induce labor when Friedman was not "readily
available." In his view, Friedman should have been at the hospital or have arranged for
another physician to be readily available, as opposed to merely being available to call to
come to the hospital. The failure to make these arrangements meant there was "almost
certain . . . delay in either getting him back to the hospital or finding another available
[physician]." In other words, Atwood's testimony that there had not been communication
regarding the patient is consistent with, rather than contradictory to, Daniels' point that
Friedman had failed to assure ready availability of a covering physician. The resulting
delay was verified by the nurse's testimony.

Friedman disputes the nurse's testimony regarding her lack of knowledge
regarding his unavailability. He asserts she was aware of his location before the
patient was ready for surgery, phone logs do not support her timeline, other
records bring her testimony into question, and the hospital had a notification
system for on-call availability of physicians. Much of his argument goes to the
credibility of the nurse, and it is not our role to reassess credibility. See Frick
Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 697, 216 P.3d 170
(2009). The nurse's testimony provides substantial evidence of the Board's factual
conclusions regarding the events.

Friedman's other arguments seek to undercut the weight of Daniels' opinion, and
essentially suggest that the opinion did not account for the custom and practice of a rural
hospital. Nevertheless, Friedman did not present contradictory opinion testimony and, as
we have discussed, Daniels' concern for delay was valid in light of the nurse's testimony
that delay occurred because she was not aware that Friedman was at a different hospital.
Hence, there was evidence the surgery was delayed because of Friedman's actions.
Accepting all evidence and inferences that support or tend to support the Board's
28



findings, we conclude there is substantial evidence to support the Board's findings
regarding Count II.

Count III

On October 2, 2005, Patient III presented at Mercy Hospital at 20 weeks pregnant
with complaints of bleeding and leaking amniotic fluid. A nurse tended to the patient.
While at the hospital, Patient III received several tests and an ultrasound was also
ordered. All tests were ordered by Friedman over the phone.

The on-call hospital sonogram technician refused to come in to perform an
ultrasound on Patient III, reasoning that at 20 weeks the fetus was not viable and thus,
Patient III did not meet hospital protocol for an on-call procedure. Friedman then spoke
with Patient III by phone about her options and ordered that she be discharged home.
Friedman told Patient III he could not do anything until after 6 p.m. because of Rosh
Hashanah, but that she could come to his office at that time. He also recommended that
she go to Wesley Medical Center in Wichita, Kansas, where they could perform the
ultrasound. The nurse who treated Patient III testified that all of Friedman's treatment
orders were made over the phone and that Friedman did not see Patient III during her stay
at Mercy.

In the Board's amended petition, it alleged that Friedman documented a note in
Patient III's medical record so that it appeared Friedman was present and examined the
patient when he had not. The Board also alleged the failure to examine the patient
deviated from the standard of care. These actions, the Board alleged, violated K.S.A. 65-
2836(b), K.S.A. 65-2837(a)(2), K.S.A. 65-2837(a)(3), K.S.A. 65-2837(b)(17), K.S.A. 65-
2837(b)(24), and K.S.A. 65-2837(b)(25), all of which are quoted above.

29



Hence, in large part, the allegations regarding Friedman's care of Patient III
focused on whether he actually examined the patient. At the hearing, this fact was
disputed. Patient III testified that Friedman did perform an examination on her that day.
The patient testified that she wrote a letter to that effect. However, this evidence is
contrary to the medical records and the nurse's testimony. In addition, the patient's
testimony is contrary to Friedman's own written words in response to the Board's
investigation of the case in which he repeatedly acknowledged he did not come in to
examine the patient that day.

Daniels, the Board's expert, starting with the premise that Friedman did not
actually examine Patient III, opined that Friedman's treatment of Patient III fell below the
applicable standard of care. Daniels reasoned that Friedman should have come in to
perform a sterile speculum examination to establish a diagnosis. He disagreed with
Friedman's contention that an ultrasound was the best diagnostic tool citing the American
College of Obstetricians and Gynecologists (ACOG) Practice Bulletin on Premature
Rupture of Membranes.

The Board made the following findings of fact:

"1. The action of the Respondent regarding Patient No. III constitutes a failure to
adhere to the applicable standard of care and the medical records were misleading.
Pursuant to K.S.A. 65-2836 and K.S.A. 65-2837, the Respondent's departure from the
applicable standard of care constitutes ordinary negligence. The Respondent's note made
19 days following the patient's admission was unprofessional conduct.
"2. The Respondent and Patient No. III both testified at the hearing of this matter.
Both alleged that the Respondent did come to Mercy Hospital to examine Patient No. III.
This testimony of the Respondent and Patient No. III flies in the face of Exhibit No. 18A,
which is a letter from the Respondent to the Board's inspector. In this letter, the
Respondent deals with the care of Patient No. III on the day in question. In this letter,
Respondent writes:
30



'My not coming in did not result in physical injury to the patient
or her fetus.'
"3. Similarly, in Exhibit No. 21, which is Mercy Hospital's review of the care of
Patient No. III, the Respondent writes:
'The patient left upset because a sonogram could not be obtained.
She wrote me a letter complaining of this, and I recommended
the MEC ask the patient for a copy of this letter. I also suggest
the MEC clarify the patient's real concern as both the patient and
her husband have conveyed to me upon direct questioning that
they were not upset that I did not come in.'
"4. Finally, the Respondent alleges that he came to Mercy Hospital to examine a
patient. No one saw the Respondent there. It would seem highly unusual that a physician
would go to a hospital and see a patient, but not ask the nursing staff or the medical
records staff for the patient's chart. Yet, the Respondent alleges that he did so. As stated
above, this flies in the face of his written statements to both the Board and to Mercy
Hospital regarding his care of Patient No. III."

Once again, Friedman asks us to reweigh this evidence and, in doing so, argues his
written statements were taken out of context because they were meant to convey that he
did not immediately come to the hospital because of Rosh Hashanah, not that he never
examined the patient. Yet, as we have discussed, our standard of review requires us to
limit our role to examining whether the Board's findings are supported by substantial
evidence. The discrepancy between Patient III's and Friedman's testimony and the rest of
the record, including Friedman's more contemporaneous writings, left a credibility
determination to be made by the presiding officer, and under our standard of review we
do not assess credibility. See Frick Farm Properties, 289 Kan. at 709. Accepting all
evidence and inferences that support or tend to support the Board's findings, we conclude
the findings of the Board regarding Count III are supported by the record.


31



Count IV

Patient IV was a regular patient of Friedman's between 2002 and 2005. She
complained repeatedly of irregular vaginal bleeding. During that time, Friedman saw her
for multiple appointments where he took samples for cultures, but according to Patient IV
did not obtain a pap smear. He continued to treat her with antibiotics and bed rest.

Frustrated, Patient IV decided to see another doctor, Dr. Sohaei. Sohaei
immediately obtained a pap smear and, after viewing Patient IV's cervix, referred her to a
gynecology oncologist. Patient IV was subsequently diagnosed with stage IV cancer;
cancer was found in her cervix, bladder, and lungs. Treatment was unsuccessful, and
Patient IV died.

The Board alleged that Friedman's failure to perform pap smears at appropriate
intervals and his failure to recognize and diagnose the patient's cervical cancer violated
K.S.A. 65-2836(b), K.S.A. 65-2837(a)(2), K.S.A. 65-2837(a)(3), and K.S.A. 65-
2837(b)(24). Friedman defended the allegations with testimony from two experts. Dr.
William Manion, M.D., Ph.D., who was the Chief of Pathology at Virtua Health, testified
that the patient's cancer was a poorly differentiated transitional cell carcinoma of the
bladder, not cervical cancer. Dr. Michael Gold, M.D., who was an associate professor of
gynecologic oncology at the University of Oklahoma Health Center, testified that
Friedman's care met the standards of care for detection of cervical cancer.

The Board made the following findings of fact and conclusions of law:

"2. Patient No. IV was a female patient of the Respondent's. Patient No. IV first
saw the Respondent in August of 2002. At that time, Patient No. IV had a pap smear
done. However, the results of the 2002 pap smear are not in the patient's chart.
32



"3. On February 11, 2003, the Respondent performed a pap smear and cultures
on Patient No. IV. Patient No. IV was pregnant at the time and on the specimen source it
was listed as 'vaginal.' The February 11, 2003, pap smear was negative.
"4. During the course of the Respondent's care and treatment of Patient No. IV,
Patient No. IV complained of pain and vaginal bleeding. She also complained of post-
coital bleeding.
"5. On July 15, 2004, the Respondent saw Patient No. IV, who complained of
post-coital bleeding. This was approximately one and one-half years since the patient's
last pap smear. Patient No. IV was seen 15 times by the Respondent from October of
2004 through November of 2005. During each of the visits, Patient No. IV complained of
vaginal bleeding and/or vaginal pain or discharge. Patient No. IV was not bleeding from
the vagina on February 10, 2005, but no pap smear was done. The last pap smear was
approximately two years prior to February 10, 2005.
"6. In December of 2005, Patient No. IV presented to a different physician. Her
complaints were of vaginal bleeding and she had lost weight. A pap smear was done and
the cervix was examined.
"7. The pathology report that followed the December 2005 pap smear indicated
'high grade squamous intraepithelial lesion encompassing moderate to severe dysplasia.'
Patient No. IV was referred to Douglas Horbelt, M.D., in Wichita, Kansas. Dr. Horbelt
performed a cervical biopsy as well as a pap smear. Patient No. IV received treatment for
cervical cancer, but ultimately treatment was not successful and Patient No. IV is now
deceased.
. . . .

"Conclusions of Law

"1. The action of the Respondent regarding Patient No. IV constitutes a failure to
adhere to the applicable standard of care. Pursuant to K.S.A. 65-2836 and K.S.A. 65-
2837, the Respondent's departure from the applicable standard of care constitutes
ordinary negligence.
"2. While the Respondent presented expert testimony as to Count No. IV from
Dr. Manion and Dr. Gold, the effectiveness of the testimony of Dr. Manion and Dr. Gold
is diminished. In light of the evidence before the Presiding Officer, it is clear that the
33



Respondent has been less than truthful. (See Count No. II and Count No. III. The fact that
the Respondent writes letters acknowledging certain matters and then he comes to this
hearing and testifies in direct opposition to the writings casts serious doubt to the
Respondent's credibility.) In light of that, what representations the Respondent has made
to both Dr. Manion and Dr. Gold must be questioned."

The district court noted the experts' disagreement regarding the type of tumor but
concluded it could not substitute its own judgment for that of the presiding officer in
determining which of the experts' opinions was entitled to be believed. Friedman argues,
however, that the district court erred because the facts do not support the Board's expert
opinions. Once again, his arguments fail to acknowledge the correct standard of review.

As noted in the Board's conclusions, resolution of this count came down to a battle
of the experts, and Friedman's side of that battle was weakened by the presiding officer's
opinion that statements made by Friedman to his experts lacked credibility. Further, there
were other reasons for the presiding officer to accept the view of the Board's experts
Daniels and Dr. John Pfeifer. Daniels, testifying for the Board, stated that postcoital
bleeding is a well-known symptom of cervical cancer and that failing to do even one pap
smear in the 16 pelvic examinations he performed between 2004 and 2005 was far below
the standard of care. He noted that Friedman's assertion that he could not do a pap smear
because the patient was bleeding during every office visit was contrary to the medical
records. Daniels noted:

"It is almost inconceivable that a well trained gynecologist could do 16 pelvic
examinations on a patient during more than a year while she was developing stage IV
cervical cancer and not notice anything abnormal about her cervix. When she was seen
by Dr. Sohaei the tumor was being described as fungating and ulcerated. Dr. Horbelt
described it as being 4-5 cm in size. Clearly, Dr. Friedman did not even meet the standard
of care to do cervical cancer screening much less recognize the symptoms and abnormal
appearance of a developing malignant tumor of the cervix.
34



. . . .
"In my opinion Dr. Friedman should have arrived at the proper diagnosis when
he saw her in July 2004. . . . Failure to follow the proper Pap smear screening
recommendations or to recognize an abnormal appearing cervix, resulted in almost an 18
month delay in diagnosis and a much more advanced cancer than it would have been."

Daniels also testified that the review of samples by Friedman's expert Manion was not as
accurate as could be determined through alternative and more traditional methods of
analysis than the method used by Manion.

Finally, the Board called Pfeifer as a rebuttal witness to Manion's testimony.
Pfeifer testified that his review of the samples and the record indicated the type of cancer
Patient IV had was cervical cancer. He completed his analysis utilizing a method that
Daniels had opined was more accurate than Manion's method.

Friedman argues we should give weight to his experts over those of the Board. He
argues several reasons for discounting Pfeifer's opinion and presents several other factual
arguments. These arguments establish that there is some support for Friedman's position,
but they do not mean that there is not substantial evidence to support the Board's
findings. Again, we must accept all evidence and inferences that support or tend to
support the findings as true, and must disregard conflicting evidence. Frick Farm
Properties, 289 Kan. at 709.

In these arguments, Friedman does discuss what he views as the apparent bias of
the presiding officer and asks us to ignore the presiding officer's credibility
determinations. Yet, there is support for the presiding officer's credibility determinations
in the form of conflicting testimony, records, and Friedman's own statements. More
significantly, the hearing officer clearly considered the testimony of Manion and Gold,
and their testimony was countered by other qualified experts who presented substantial
35



evidence contrary to Friedman's and his experts' view of the evidence. The Board's
experts' opinions presented substantial evidence that Friedman violated the applicable
standard of care in his care of Patient IV.

Count V

Patient V began seeing Friedman for prenatal care in June 2005. Early in her
treatment, a routine blood screen was done. The Board alleged that the screen was
positive for anti-C and anti-D antibodies. The laboratory report containing these results
notes that the antibodies can cause "hemolytic disease of the newborn." Although the test
was allegedly positive for the antibodies, the results were recorded in Friedman's prenatal
record of patient care as negative.

Patient V continued seeing Friedman for her prenatal care until he moved. She
then went to Dr. Chappell to continue her care. At that time, she informed Chappell that
she had not felt the fetus move for 2 days. After Chappell could not find fetal heart tones,
Patient V was given two ultrasounds that confirmed the fetus did not survive.

In its amended petition, the Board alleged Friedman deviated from the standard of
care when he failed to review the results of the antibody screen or failed to identify
abnormal screen results. In response, Friedman argued there was a laboratory report in
his original chart that confirmed negative antibodies but that the chart sent to the Board
after he left Kansas omitted the report.

Portions of the Board's conclusions of law are as follows:

"1. The action of the Respondent regarding the care and treatment of Patient No.
V constitutes a failure to adhere to the applicable standard of care. Pursuant to K.S.A. 65-
36



2836 and K.S.A. 65-2837, the Respondent's departure from the applicable standard of
care constitutes ordinary negligence.
"2. At various times regarding Patient No. V, the Respondent suggested, argued,
or otherwise stated that this file had been either tampered with or had been changed.
While perhaps that is an interesting theory, it ignores the fact that the lab report was
provided back to the Respondent on July 8, 2005. He continued to treat the patient
through November of 2005. The Respondent offered nothing to explain why he ignored
the lab results."

Before us, Friedman insists the original file would show he correctly read the
laboratory results. He argues the Board pieced together his chart from the records of other
physicians and the hospital; the hospital would not have allowed the shot if it was
contraindicated; nurses, whose testimony was suppressed, would have testified that the
test results were negative; and there are multiple reasons that suggest the stillbirth was
not caused by his actions. He further contends Daniels' opinions were based on faulty
assumptions.

As noted by the Board, however, the record includes an exhibit of 12 pages of
Patient V's medical record; all 12 pages show a facsimile machine recording that reads:
"Jan. 10, 2006-1:54 PM-Dr. Friedman." This allows the inference that these records were
from Friedman's chart. On the third page, which is a preprinted form, there is a section
that is formatted in four columns that are labeled "INITIAL LABS," "DATE,"
"RESULT," "REVIEWER." One of lines under "INITIAL LABS" is preprinted on the
form to read, "ANTIBODY SCREEN." Next to "ANTIBODY SCREEN," someone wrote
that the test was administered on June 28, 2005, and that the result was "neg." The
"REVIEWED" column is blank. Following that page are several LabOne reports,
including a report showing a testing date of June 28, 2005. This is the report that
indicates Patient V tested positive for anti-C and anti-D antibodies and warns of the
potential for hemolytic disease. Hence, even if as Friedman asserts there is a laboratory
37



record that would verify his account, the record establishes there was also a laboratory
record in his chart that shows Patient V tested positive for anti-C and anti-D antibodies
on June 28, 2005. Friedman does not explain why he took no action to reconcile allegedly
conflicting laboratory results.

Additionally, the Board relies in large part on the testimony and report of Daniels.
Daniels noted that the ultimate responsibility for knowledge of the laboratory results rests
with Friedman and his failure to properly review Patient V's laboratory results and to
treat her appropriately in light of the June test results were deviations from the applicable
standard of care. In his written report he concluded: Friedman "failed to review and act
on a very important laboratory test result. Had he acted on the results of this test the baby
might not have been stillborn."

In response, as with some other counts, Friedman attempts to point blame at
others—in this circumstance, his office staff, the hospital and various labs. Once again,
however, even if others were negligent, Friedman can also have deviated from the
standard of care applicable to him. Because, our standard of review requires us to accept
all evidence and inferences that support or tend to support the Board's findings and to
disregard conflicting evidence, we conclude there is substantial evidence to support the
Board's findings. See Frick Farm Properties, 289 Kan. at 709.

Count VI

The final disciplinary count against Friedman alleged Friedman surrendered his
privileges at CRMC during an ongoing investigation of his conduct in violation of K.S.A.
65-2836(u), which provides:

38



"A licensee's license may be revoked . . . upon a finding of the existence of any
of the following grounds:
. . . .
"(u) The licensee has . . . agreed to a limitation to or restriction of privileges at
any medical care facility or has surrendered the licensee's membership on any
professional staff or in any professional association or society while under investigation
for acts or conduct similar to acts or conduct which would constitute grounds for
disciplinary action under this section."

The Board made the following findings of fact and conclusions of law regarding
this count:

"2. Prior to April 22, 2005, the Respondent had privileges at CRMC in
Coffeyville, Kansas.
"3. During the time in which the Respondent had these privileges, he had been
called before the Medical Executive Committee on a number of occasions.
"4. On April 18, 2005, the Credentialing Committee for CRMC met regarding the
Respondent's reappointment to the CRMC staff. At that meeting, the committee voted
unanimously not to renew the Respondent's staff status and privileges that he had at
CRMC. The committee considered various concerns as well as a Level 3 violation in
making its decision not to reappoint the Respondent.
"5. A letter was mailed to the Respondent on April 20, 2005, advising him of the
committee's decision recommending non-renewal to the Medical Executive Committee.
On April 22, 2005, the Respondent sent a letter resigning his privileges at CRMC.

"Conclusions of Law

"1. By surrendering his privileges at CRMC while under an investigation for
various acts and conduct, the Respondent violated K.S.A. 65-2836(u).
"2. The Respondent argues that he was not under any investigation at the time he
submitted his resignation. That is not true. It is clear that he was under investigation.
Further, it is highly questionable that he was not aware of the fact that he was under
39



investigation since he was notified by letter on April 20, 2005, and his resignation is
dated April 22, 2005."

Friedman argues there is no evidence in the record that shows an investigation was
ongoing at the time he resigned. Specifically, he states that there was no active
investigation against him until 14 months after his resignation.

Contrary to this assertion, Laura Robson, CRMC's quality risk manager, testified
at the hearing that there was an ongoing peer review of Friedman at the time he resigned.
This is verified by documents in the record.

Significantly, the April 20, 2005, letter informed Friedman that the Bylaws and
Credentials Committee's recommendation was only the first stage of the credentialing
decision. The letter informed Friedman that the Bylaws and Credentials Committee's
recommendation would be reviewed by the Medical Staff Executive Committee on April
25, 2005, and if the Medical Staff Executive Committee concurred in the credentialing
committee's recommendation, Friedman had "hearing and appellate review rights as
outlined in the enclosed Medical Staff Bylaws Article VII." In other words, the hospital's
investigation into Friedman's application was ongoing at the time of his resignation with
at least one and potentially two more steps in the investigating process yet to be
completed.

In addition, in Robson's incident report to the Board regarding the medical records
of Patient I, Robson wrote that she was given discretion "to start gathering data regarding
possible trends in charting issues" when the Medical Staff Executive Committee
considered Friedman's care of Patient I at its August 23, 2004, meeting. Then, according
to the minutes of the April 18, 2005, Bylaws and Credentials Committee meeting,
"[q]uestionable charting practices were discussed" as one of the reasons for the
40



committee's unanimous recommendation that Friedman's privileges not be renewed. This
review continued despite Friedman's resignation, and on May 23, 2005, the Medical Staff
Executive Committee concluded Friedman falsified Patient I's medical records. That
conclusion led to the reporting of the incident to the Board. These documents provide
substantial evidence of an ongoing investigation.

Finally, Friedman argues there is no evidence that he was aware of the
investigation. The presiding officer, however, pointed to circumstantial evidence arising
from the sequence of events—the Bylaws and Credentials Committee made its decision
not to allow Friedman credentials on April 18, 2005, and a letter communicating that
decision was sent to Friedman on April 20, 2005. Friedman focuses on the fact that his
resignation letter was sent before the credentialing committee's recommendation was
acted on by the Medical Staff Executive Committee, and his resignation was effective
before the Medical Staff Executive Committee took any formal action. Assuming that
such knowledge is even necessary, Friedman's argument ignores the inference that can be
drawn from the fact that the Bylaws and Credentials Committee had taken negative
action that would be submitted to the Medical Staff Executive Committee for final action,
and the investigation continued as long as the credentialing action was not final. As this
court has often stated, "circumstantial evidence and the logical inferences therefrom can
be sufficient to support a conviction of even the most serious crime. [Citations omitted.]"
State v. Herron, 286 Kan. 959, 967, 189 P.3d 1173 (2008). The same is true in civil
review of agency actions.

Affirmed.

MIKE KEELEY, District Judge, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art.
3, § 6(f) of the Kansas Constitution, Judge Keeley was appointed to hear case No.
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102,921 to fill the vacancy on the court created by the retirement of Chief Justice Robert
E. Davis.