MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                           Jul 14 2017, 9:31 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David F. McNamar                                          Curtis T. Hill, Jr.
McNamar & Associates, P.C.                                Attorney General of Indiana
Westfield, Indiana
                                                          Patricia C. McMath
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dale W. Economan, D.O.,                                   July 14, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A05-1609-PL-2102
        v.                                                Appeal from the
                                                          Marion Superior Court
Indiana Medical Licensing                                 The Honorable David J. Dreyer
Board,
                                                          Trial Court Cause No.
Appellee-Respondent.                                      49D10-1603-PL-8939




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 40A05-1609-PL-2102 | July 14, 2017               Page 1 of 6
[1]   Dale W. Economan. D.O., appeals the dismissal of his petition for judicial

      review1 of the extension of the suspension of his medical license after his license

      had expired.


[2]   We affirm.


                        FACTS AND PROCEEDURAL HISTORY
[3]   Economan is a licensed physician in the State of Indiana. On August 25, 2015,

      the State filed a Petition for Summary Suspension of Economan’s medical

      license, seeking a ninety-day suspension based on allegations that Economan

      was over-prescribing controlled substances, and regularly smoked marijuana.

      Economan was the target of a criminal investigation by the United States

      Department of Justice, Drug Enforcement Administration (“DEA”). On

      August 27, 2015, the Indiana Medical Licensing Board (“Board”) held a

      hearing at which Economan did not appear. The Board heard testimony and

      considered evidence presented and found that Economan “engaged in a series

      of acts that were dangerous to the public.” Appellant’s App. at 20. The Board

      granted the summary suspension.


[4]   Economan appeared by counsel at a hearing on October 22, 2015. The Board

      extended the summary suspension for an additional ninety days. Economan

      allowed his medical license to expire on October 31, 2015. On December 14,




      1
          See Administrative Orders and Procedures Act (AOPA), Ind. Code § 4-21.5-5-1 et seq. (2016).


      Court of Appeals of Indiana | Memorandum Decision 40A05-1609-PL-2102 | July 14, 2017              Page 2 of 6
      2015, the Board sent notice to Economan that a hearing would be held on

      January 28, 2016 to consider another extension of the suspension. On

      December 23, 2015, Economan filed a motion to dismiss on the grounds that

      the matter was moot because he had allowed his medical license to expire.

      Following a hearing on January 28, 2016, at which neither Economan nor his

      attorney appeared, the Board denied his motion to dismiss and again extended

      the suspension of his license for ninety days.


[5]   On March 11, 2016, Economan filed a verified complaint for judicial review of

      the Board’s decision to extend the suspension of his license after his license had

      expired. On April 7, 2016, the Board filed its Motion to Dismiss Petition for

      Judicial Review on the grounds the temporary suspension order was not a final

      order subject to review pursuant to The Indiana Administrative Orders and

      Procedures Act (“AOPA”).


[6]   On April 12, 2016, Economan filed a submission of record for review. The

      Board filed a second motion to dismiss on May 16, 2016, asserting that the

      record submitted for review was not complete because it lacked transcripts of

      two of the suspension hearings. On June 22, 2016, the trial court granted the

      Board’s Motion to Dismiss. Economan filed a Motion to Correct Error which

      was deemed denied on August 15, 2016. Economan filed his Notice of Appeal

      on September 15, 2016. On December 30, 2016, this Court denied the Board’s

      Motion for Involuntary Dismissal. Economan now appeals the dismissal of his

      petition.



      Court of Appeals of Indiana | Memorandum Decision 40A05-1609-PL-2102 | July 14, 2017   Page 3 of 6
                               DISCUSSION AND DECISION
[7]    The Medical Licensing Board of Indiana regulates the practice of medicine

       within Indiana and is charged with establishing standards for the competent

       practice of medicine in the state. Ind. Code § 25-22.5-2 et seq. The Board’s

       general authority to summarily suspend medical licenses derives from Indiana

       Code section 25-1-9-10(a), which provides:

               The board may summarily suspend a practitioner’s license for
               ninety (90) days before a final adjudication or during the appeals
               process if the board finds that a practitioner represents a clear and
               immediate danger to the public health and safety if the
               practitioner is allowed to continue to practice. The summary
               suspension may be renewed upon a hearing before the board, and
               each renewal may be for ninety (90) days or less.


[8]    AOPA governs judicial review of decisions made by the Board. Ind. Code § 4-

       21.5-2-0.1 et seq. Here, the trial court dismissed the petition for judicial review

       for two reasons: first, because Economan is seeking review of the summary

       suspension of a medical license, a non-final agency action; and second, because

       Economan did not submit a complete agency record with the trial court.


[9]    Economan does not challenge the Board’s authority to summarily suspend his

       license when it originally did so on August 27, 2015. Once his license had

       expired on October 31, 2015, however, Economan claims the Board could not

       extend the suspension of his license.


[10]   On March 9, 2016, Economan filed a Notice of Appeal/Praecipe for the

       Record, requesting the Board to prepare the Record of all proceedings for

       Court of Appeals of Indiana | Memorandum Decision 40A05-1609-PL-2102 | July 14, 2017   Page 4 of 6
       submission to the trial court for the judicial review. However, the agency

       record submitted to the trial court by Economan did not include the transcript

       of the August 27, 2015 hearing or the January 28, 2016 hearing. Economan

       admits the transcripts of the August 27 and January 28 hearings were not

       submitted.


[11]   Pursuant to AOPA, within thirty days after an aggrieved party files its petition

       for judicial review, or within further time allowed by the court, the petitioner

       shall transmit to the court the original or a certified copy of the agency record

       for judicial review of the agency action. Ind. Code § 4-21.5-5-13(a). AOPA

       defines “agency record” as the “evidence received or considered by the agency

       as well as the transcript of the record considered before disposition of a

       proceeding.” Ind. Code § 4-21.5-3-33(b)(4), (8). Specifically, the agency record

       includes documents identified by the agency as having been considered by it

       before its action and used as a basis for its action. Ind. Code § 4-21.5-5-13(a).

       Here, the Board considered both testimony and evidence presented at the

       January 28, 2016 hearing.


[12]   Submitting the agency record in a timely manner is a prerequisite for judicial

       review. As the Indiana Supreme Court stated, “a petitioner for review cannot

       receive consideration of its petition where the statutorily-defined agency record

       has not been filed.” Teaching Our Posterity Success, Inc., v. Ind. Dep’t of Educ., 20

       N.E.3d 149, 155 (Ind. 2014). A complete record is always necessary unless the

       parties stipulate to a condensed record. Id. at 154. Although Indiana Code

       section 4-21.5-5-13(c) provides that the Board compiles the record upon

       Court of Appeals of Indiana | Memorandum Decision 40A05-1609-PL-2102 | July 14, 2017   Page 5 of 6
       petitioner’s request, the burden is on the petitioner to submit the complete

       record. Id. at 152; Ind. Code § 4- 21.5-5-13(a). It was not enough that

       Economan requested the entire record. It was his responsibility to ensure that

       he submitted a complete record to the trial court. Nothing in the record before

       this court indicates that he followed up with the Board to get the transcripts he

       originally requested. AOPA provides a mechanism for submitting less than the

       entire agency record as defined by statute. The parties may condense the record

       by stipulation. Ind. Code § 4-21.5-5-13; Teaching Our Posterity, 20 N.E.3d at

       154.


[13]   Economan’s argument that the record as submitted was sufficient to decide the

       issue being raised does not withstand the ruling in Teaching Our Posterity. The

       record presented does not include the transcript of the August 27 hearing, the

       first hearing, where it may be presumed that the Board heard evidence to

       support the initial suspension, nor the January 28 hearing, the hearing where

       the Board denied Economan’s motion to dismiss the proceedings because he

       had allowed his license to expire. The trial court properly dismissed

       Economan’s petition for judicial review. Because this issue is dispositive, we do

       not address the other issues that Economan raises.

       Affirmed.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A05-1609-PL-2102 | July 14, 2017   Page 6 of 6
