LOWELL K. CUNNINGHAM, M.D., PETITIONER,
v.
AGENCY FOR HEALTH CARE ADMINISTRATION, RESPONDENT
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Dr. Lowell Cunningham challenged an emergency suspension of his psychiatry license by the Agency for Health Care Administration (AHCA) for allegedly over-prescribing narcotics. The First District Court of Appeal held that while some restrictions were warranted, the complete license suspension was overbroad and remanded for a narrowly-tailored emergency order.
The court affirmed the emergency order insofar as it barred Dr. Cunningham from treating the three specific patients and from prescribing narcotic medications, but reversed the order insofar as it suspended his entire practice of psychiatry, finding the full suspension exceeded what was necessary to protect the public interest.
[1] An agency order suspending a professional license may be reviewed by immediate appeal if a final order would not provide an adequate remedy.
[2] An agency may order the emergency suspension of a professional license only if an immediate danger to the public health, safety, or welfare requires emergency action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An agency is authorized to order emergency suspension of a professional license if it finds "that an immediate danger to the public health, safety, or welfare requires emergency action," so long as the agency takes "only that action necessary to protect the public interest under the emergency procedure."”
Establishes the legal standard for emergency license suspensions.
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Join FLexlaw to unlock all legal intelligenceThe AHCA issued an emergency order suspending Dr. Cunningham's license to practice psychiatry based on evidence that he had prescribed excessive and u…
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ERVIN, Judge.
Dr. Lowell Cunningham petitions this court for a writ of certiorari, contending that by suspending his license to practice psychiatry by emergency order, the Agency for Health Care Administration exceeded that which was necessary to protect the public interest. We construe his petition as a direct appeal of an emergency order and, because the order is too broad, we reverse in part and remand.
As an initial point, we review the emergency order pursuant to section 120.68(1), Florida Statutes (1995), which authorizes immediate review of an intermediate agency order if review of the final order would not provide an adequate remedy. We consider that the disruption of Dr. Cunningham’s practice and potential harm to his patients might not be rectified if he were to ultimately prevail in the pending disciplinary proceeding. See, e.g., National Freight, Inc. v. Department of Transp., 488 So. 2d 742 (Fla. 1st DCA 1986); Witmer v. Department of Business & Professional Reg., 631 So. 2d 338 (Fla. 4th DCA 1994).
As to the merits of the appeal, the agency suspended Dr. Cunningham’s license based upon evidence that he had prescribed an excessive and unwarranted amount of narcotic medications to three patients. An agency is authorized to order emergency suspension of a professional license if it finds “that an immediate danger to the public health, safety, or welfare requires emergency action,” so long as the agency takes “only that action necessary to protect the public interest under the emergency procedure.” §§ 120.60(8) & 120.54(9), Fla. Stat. (1995). Under this standard, Dr. Cunningham need be prevented only from prescribing narcotics and from treating the three patients named in the order, until his disciplinary proceeding has been completed.
The agency’s expert opined that Dr. Cunningham had unjustifiably overpreseribed controlled substances to one patient. There was, however, no evidence that Dr. Cunningham was engaged in any kind of inappropriate or inadequate counseling of his patients. The agency’s three concerns — that Dr. Cunningham is engaged in a criminal enterprise, possesses a dangerous lack of medical knowledge, or is unable to deny a patient who requests increasing amounts of drugs — can all be addressed by a more narrowly tailored emergency order. We therefore affirm the agency’s emergency order insofar as it bars Dr. Cunningham from the practice of psychiatry in treating the three patients at issue and from prescribing narcotic medications. We reverse the order insofar as it exceeds these conditions. Our reversal and remand does not, of course, preclude the agency from revoking or suspending Dr. Cunningham’s license to practice psychiatry if the allegations against him are proved.
AFFIRMED IN PART, REVERSED IN PART and REMANDED for further proceedings consistent with this opinion.
DAVIS, J., and SMITH, Senior Judge, concur.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Witmer v. Dep't of Bus. & Prof'l Reg., 631 So. 2d 338 (Fla. 4th DCA 1994)