Kansas Professional Licensing Attorney Reviews Recent Court Opinion Issued In Jernigan v. State of Kansas

On September 9, 2016, the Court of Appeals for Kansas issued its ruling in the case of Jernigan v. State of Kansas. The decision is important to healthcare practitioners in Kansas because this case afforded the Court of Appeals an opportunity to review the 2015 amendments to K.S.A. 65-2839a(b)(1) and (3). These sections govern licensees’ rights to an administrative and judicial review of the Kansas Board of Healing Arts’ (the “Board”) subpoena power. The Jernigan court discussed whether the amendment was constitutional and whether the amendment had retroactive effect. The Court of Appeals then turned to the merits of the case. The panel also discussed the authority of the Board and its power to issue subpoenas for records.

David Jernigan, D.C. is the primary owner and healthcare provider at a chiropractic care center in Kansas. Dr. Jernigan fashioned his practice to include traditional methods of chiropractic care complimented with holistic methods as well. The Board received complaints from an individual claiming that Dr. Jernigan fraudulently provided therapeutic services from which his patients derived no clinical benefit.  Accordingly, the Board issued a subpoena to Dr. Jernigan compelling the production of five (5) patients’ records in furtherance of an investigation in Dr. Jernigan’s practice. Dr. Jernigan filed a motion to quash in the district court without first filing an objection with the Board or otherwise exhausting his administrative remedies.

The Court of Appeals reviewed the amendment to K.S.A 65-2839a(b)(3). The amended statute requires a person aggrieved by a subpoena to petition the district court for relief only after exhausting all administrative remedies. The amendment took effect while the case was pending in the courts. The Court of Appeals, noting that the amendment was procedural in nature and therefore would apply retroactively under Kansas law, stated that the new law required Dr. Jernigan to appeal to the Board first. Jernigan did not do that. However, because the person to whom the Board issued the subpoena has only five (5) days to file an objection or motion to quash with the Board, applying that time to Dr. Jernigan would deprive him of a valuable right.

The Court of Appeals took the opportunity to analyze whether the amendment survived constitutional scrutiny. The panel found that it did. The Court of Appeals held that the amendment provides an opportunity to seek redress for a wrongfully issued subpoena. The Court did, however, note that the five (5) day window of opportunity to file an appeal was very narrow, leaving open the possibility that a court may revisit the issue at another time.

The Court of Appeals undertook a determination of the case upon its merits. The Court of Appeals ultimately ruled that the case must be remanded to the district court for further findings. Before doing so, the Court of Appeals reviewed the Board’s authority.  The panel reiterated that the practice of medicine in Kansas (and elsewhere) is a privilege and not a right and the Board exists to protect the public from incompetent, unscrupulous, or unethical healthcare providers.  Accordingly, the Board enjoys the authority to take disciplinary action upon a medical license after an investigation if warranted by the inquiry. Consequently, the Board possesses the power to issue subpoenas it believes will advance their statutorily imposed obligation to investigate the unethical practice of medicine.  The Court of Appeals cautioned that the Board’s authority is not unfettered.  Subpoenas may lawfully issue when Board is making an inquiry it is authorized to make when the demand for production is not indefinite, and the information sought is relevant to the investigation at hand. The Court of Appeals sent the case back to the district court to make factual findings consistent with its opinion.

Do Not Delay Seeking Legal Assistance When Served With A Subpoena In Kansas

As discussed above, time is of the essence. If you were served with a subpoena to produce records, call Kansas and Missouri Professional Licensing Attorney Danielle Sanger. Rely on her vast experience and sterling reputation to protect your livelihood. Call 785-979-4353 to schedule a consultation with Attorney Sanger today.