ADEL S. AL-JURF, M.D., Petitioner-Appellant,
IOWA BOARD OF MEDICINE, Respondent-Appellee.
Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.
Dr. Al-Jurf appeals from the order denying his petition for judicial review.
Adel Al-Jurf M.D., Iowa City, appellant pro se.
Thomas J. Miller, Attorney General, and Theresa O'Connell Weeg, Assistant Attorney General, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
The Iowa Board of Medicine decided Adel S. Al-Jurf, M.D., engaged in unethical conduct in the practice of medicine while employed as a surgeon by the University of Iowa Hospitals and Clinics. The board issued a public reprimand and placed him on probation for three years. On judicial review, the district court affirmed the board's decision and found no abuse of discretion in the board's release of a media statement concerning the disciplinary proceedings.
On appeal, Dr. Al-Jurf challenges the board's authority to prosecute him for unethical conduct and its interpretation of Iowa Code sections 147.55(3) and 272C.10(3) (2003). He also alleges the statutes are unconstitutionally vague. Finally, Dr. Al-Jurf renews his objection to the news release.
Because the board was entitled to amend its charges to conform to the law in effect at the time of the doctor's conduct, dismissal was not warranted. We also determine the board's interpretation of "unethical conduct" was not irrational, illogical, or wholly unjustified; Dr. Al-Jurf did not preserve his constitutional claim; and the board did not abuse its discretion in issuing the press release. Accordingly, we affirm the district court's order denying Dr. Al-Jurf's petition for judicial review.
I. Background Facts and Proceedings.
Dr. Al-Jurf was licensed to practice medicine in Iowa in 1977. The same year, the University of Iowa Hospitals and Clinics (University Hospitals) hired him as a general surgeon and faculty member. He received tenure in 1981 and became a full professor in 1986. By 2002, Dr. Al-Jurf was one of the top earners in the surgical oncology department.
On June 13, 2003, the university provost filed an ethical complaint against Dr. Al-Jurf, alleging that on several occasions in 2002 and 2003 he "subjected colleagues to personal vilification and verbal abuse in a manner that creates an unacceptable work environment for them." A three-person faculty judicial panel convened in April 2004 to hear sworn testimony from thirteen witnesses on the matter. On July 14, 2004, the panel found that while Dr. Al-Jurf did not commit sexual harassment, violence, or retaliation, on several occasions he violated provisions of the University of Iowa operations manual regarding professional ethics and academic responsibility. The panel recommended he "not be allowed to return to operating at [University Hospitals] or to maintain his position in the Department of Surgery."
The university president reviewed the panel's decision, accepted its findings, and in a letter dated January 20, 2005, terminated Dr. Al-Jurf's employment with University Hospitals. Dr. Al-Jurf appealed the decision to the Iowa Board of Regents, which affirmed the president. The district court affirmed the regents' decision on judicial review. Our court affirmed the judicial review ruling in an unpublished decision. See Al-Jurf v. Board of Regents, No. 06-1621, 2007 WL 2004461, *3 (Iowa Ct. App. July 12, 2007).
Prompted by Dr. Al-Jurf's interest in reinstating his medical license, the Iowa Board of Medicine filed a statement of charges against him on May 21, 2009. The charges addressed the same conduct for which Dr. Al-Jurf was fired.
The charges set forth in Count I alleged Dr. Al-Jurf had engaged "in unprofessional conduct in the practice of medicine, " in violation of Iowa Code sections 147.55(3) and 272C.10(3) (2009), as well as Iowa Administrative Code rule 653–23.1(4) (2009). Count II alleged Dr. Al-Jurf had engaged in disruptive behavior—defined as a pattern of contentious, threatening, or intractable behavior that interfered with, or had the potential to interfere with, patient care or the effective functioning of health care staff—in violation of Iowa Code section 148.6(2) and Iowa Administrative Code rule 653–13.7(5).
The charges referenced Dr. Al-Jurf's conduct on or before April 23, 2003, but listed the statutes and rules in effect for 2009. Dr. Al-Jurf moved to dismiss the charges because of the discrepancy. Counsel for the board conceded Count II should be dismissed because the statute and administrative rule set forth in that count were not in effect when the conduct occurred. But because the code sections cited in Count I—relating to "unethical conduct" rather than "unprofessional conduct"—covered behavior substantially similar to the conduct for which Dr. Al-Jurf was charged, the board's attorney argued the board should be allowed to pursue charges under those sections. The board delegated the ruling to an administrative law judge (ALJ), who dismissed Count II in its entirety, but only partially dismissed Count I. The ALJ determined the board could decide whether Dr. Al-Jurf's conduct constituted "unethical conduct" as prohibited by sections 147.55(3) and 272C.10(3) (2003).
Counsel for the board requested the doctrine of res judicata be applied to give preclusive effect to the facts found by the University Hospitals faculty judicial panel during the investigation of the ethical complaint against the doctor. The board again delegated the matter to an ALJ, who granted the request. The ALJ determined the board should focus on whether the facts established in the University Hospitals proceedings constituted a violation of the code sections cited in Count I, and if so, what sanction was appropriate.
The board held a hearing on October 28, 2010, to determine whether Dr. Al-Jurf violated sections 147.55(3) and 272C.10(3). On January 13, 2011, the board entered its order, finding Dr. Al-Jurf's "unprofessional, hostile, and intimidating interactions with his [University Hospitals] colleagues constituted unethical conduct in violation of sections 147.55(3) and 272C.10(3)." The board reprimanded Dr. Al-Jurf for his unethical conduct and warned him that similar behavior in the future could result in disciplinary action. The board required Dr. Al-Jurf to successfully complete a clinical practice re-entry program ...