“You can’t fire me, I quit” cuts no ice in professional licensing

Courts in two states recently turned down licensees’ efforts to preempt disciplinary actions by surrendering their licenses.

An appellate court in Tennessee rejected, in a March 15 decision, an argument by a doctor that, because he had voluntarily relinquished his medical license, the state’s medical board no longer had power over him (Wyttenbach v. Board of Tennessee Medical Examiners).

After the state medical board sent Dr. William Wyttenbach a letter informing him of potential disciplinary charges—based on allegations that Wyttenbach failed to provide any supervision over the prescription of painkillers by nurse practitioners at a clinic in Knoxville, where he was the medical director—Wyttenbach voluntarily retired his license. Unsatisfied with the doctor’s action, the board filed the charges anyway.

Following a hearing, at which Wyttenbach failed to appear, the board revoked his license and fined him $4,500. Wyttenbach appealed, and the case went up to the Court of Appeals of Tennessee in Nashville, which issued an opinion written by Judge W. Neal McBrayer.

In his appeal, Wyttenbach argued that, because he had retired his license, the board no longer had jurisdiction over him, and that the notice of charges provided to him by the board was insufficient because the board had not obtained an acceptance receipt from Wyttenbach himself.

Although the board mailed Wyttenbach three copies of the charges via certified mail, each to a different address associated with the doctor, none of the receipts it received in response could be explicitly attributed to Wyttenbach. One copy was returned with an illegible signature, one appeared to have been signed by another person, and the third came back “Unclaimed.”

However, despite the fact that Tennessee law generally requires a return receipt signed by the licensee, it contains an exception if the statutes governing a board do not specify that a receipt is necessary and licensees are required to maintain a current address. The medical board’s statutes contained such provisions, so service without an adequate receipt was sufficient.

The court also rejected Wyttenbach’s argument that the board had no authority over him because he no longer possessed an active license. “Retirement of a license,” Judge McBrayer wrote, “does not amount to a relinquishment or surrender of the license. Instead, retirement of a license places it in a status from which biennial renewal is no longer required but reactivation is still a possibility.”

“The statute granting the board authority to suspend or revoke licenses does not limit that authority based on the current status of a license,” Judge McBrayer continued. “Dr. Wyttenbach’s argument would have us read into the statute granting the board authority over medical licenses the word ‘active’ before the word ‘license.’ We decline to do so.”

In another case, an Oklahoma doctor who tried to avoid discipline charges by voluntarily relinquishing his license found that the state allows such an action, but at a cost to the licensee: admission of guilt. The state’s Court of Civil Appeals held that because a doctor had failed to admit his guilt in the charged conduct, he was not eligible to forego prosecution (State of Oklahoma ex rel. The Oklahoma Board of Medical Licensure and Supervision v. Gregory).

In July 2013, the state’s medical board informed physician Jarrett Gregory that it was going to charge him with various controlled substance offenses. In response, Gregory, while denying the allegations, sent a letter to the board surrendering his license.

Gregory’s argued in a letter to the board that, if he had no license, the board no longer had jurisdiction against him, but the board proceeded to file charges against the doctor. After a hearing, it revoked his license. Gregory appealed, and the case went up to the Court of Civil Appeals, which issued a decision March 7.

Gregory’s appeal did not get far. Judge Jane Wiseman, writing for the court, acknowledged that licensees in Oklahoma may surrender their license in lieu of prosecution. But, she wrote, the board is not required to accept that surrender, and, in any case, the law allowing such an action requires the licensee to admit and describe the misconduct in question, which Gregory had not done.

Gregory clearly complied with almost all of the provisions of state law to surrender his license voluntarily, wrote Judge Wiseman, “but he did not follow all of the procedures necessary to surrender his license successfully, admit his misconduct, and halt the prosecution to revoke his license.” Because of that failure, the board’s case could continue.