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ERIC C. NORSWORTHY, MD
                                2008-SC-000918-I
                                                        PATE           10- 1-09 ti//4 CTCOARt4ib•C'
                                                                       APPELLANT


                    ON REVIEW FROM COURT OF APPEALS
V.                      CASE NO. 2008-CA-001717-I
                JEFFERSON CIRCUIT COURT NO. 08-CI-008166


KENTUCKY BOARD OF MEDICAL
LICENSURE (KBML)                                                          APPELLEE


                          OPINION AND ORDER
                     DENYING INTERLOCUTORY RELIEF

      Appellant, Eric C. Norsworthy, pursuant to CR 65.09, moves this

Court to vacate the Order entered by the Court of Appeals staying the

injunctive relief granted him by the Jefferson Circuit Court, pursuant to

CR 65.04. Having reviewed the motions of the parties and the record of

the case, this Court now denies the motion for the relief requested for

failure to show extraordinary cause.

                              BACKGROUND

      On May 7, 2008, a hearing officer conducted an administrative

hearing on the complaint issued by the Kentucky Board of Medical

Licensure (KBML) against Appellant. The complaint was filed alleging

Appellant committed sexual misconduct against a female patient by

grabbing her breast when she was awaiting treatment for bronchitis on

February 20, 2007. After considering all the evidence, including his
nineteen (19) year disciplinary history,' the officer recommended that

Appellant's license be revoked as a result of his continued misconduct.

      On July 17, 2008, Hearing Panel B of the KMBL took up the case

for final action. Upon review, the Panel accepted all of the hearing

officer's findings of fact and conclusions of law, but chose to modify the

punishment. In lieu of a complete revocation, as recommended by the

hearing officer, the Panel recommended a restriction limiting Appellant to

practice on male patients only. To that end, the Board noted:
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      The only sanction which will adequately protect the public is
      one which conclusively, ensures that this licensee may never
      be permitted to enter into a physician-patient relationship
      with or to perform any medical procedure - evaluation,
      diagnosis, treatment - on any female patient during the
      remainder of his medical practice. If this can be


  In 1989 and 1990, a sixteen (16) year old female patient and her mother
  asserted that Appellant lifted the patient's breast out of her bra and fondled
  her breast in a way no other doctor had done. During this same
  investigation, two (2) other female patients asserted Appellant had sexual
  intercourse with them after giving them some medication. Appellant received
  a six (6) month suspension of his license followed by four and one-half (4
  1/2) years probation.
  In February 1993, a twenty-one (21) year old female patient alleged that
  Appellant, in addition to other sexual misconduct, cupped and massaged her
  breast while listening to her heartbeat. Appellant's probation was extended
  another five (5) years after this incident.
  In February 2000, a local physician filed a grievance against Appellant,
  claiming Appellant conducted inappropriate breast examinations and
  unnecessary pelvic examinations on ten (10) female patients. Several of
  those patients claimed that Appellant fondled their breasts.
 These complaints were reviewed by board consultants, who did not find
 sufficient information to prove that Appellant was actively fondling or
 sexually touching patients. The KBML held that the evidence may not
 establish inappropriate touching, but did question the medical necessity of
 various examinations conducted by Appellant on female patients.
 Accordingly, an Agreed Order was issued on May 16, 2002, subjecting
 Appellant to numerous restrictions and conditions, pertaining to female
 patients, for a period of five (5) years.

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       accomplished by a permanent restriction upon his medical
       license, then revocation may be avoided and he may be
       permitted to practice under this permanent restriction.

       On July 24, 2008, the KBML issued the indefinite restriction on

Appellant's license to practice medicine, limiting his practice to male

patients only. The KBML took this action in view of Appellant's long

history of improper conduct starting in 1989, over which time period, it

received sixteen (16) complaints from female patients charging Appellant

with a litany of troubling conduct, including sexual touching and sexual

intercourse. Despite the Board's decision to allow Appellant to continue

practicing medicine (when the recommendation given was to revoke his

license), Appellant appealed the restriction of his license in Jefferson

Circuit Court and also filed a motion for injunctive relief pending the

result of his appeal.

      On August 29, 2008, after only a ten (10) minute hearing at which

Appellant called no witnesses and produced minimal evidence, the

Jefferson Circuit Court granted Appellant's temporary injunction against

the restriction under CR 65.04 and the three-part test from Maupin v.

Stansbury, 575 S.W.2d 695 (Ky. App. 1978). The circuit court reasoned

that restricting Appellant's ability to treat women would equate to an

irreparable injury under Maupin because it was alleged that up to

seventy (70) percent of his patients were women. Furthermore, the court




                                     3
 held that the restriction limited his ability to earn money, his ability to

 acquire new patients, as well as his ability to retain old patients.

       The circuit court likewise found the existence of a substantial

question under Maupin, which it deemed warranted the grant of the

injunction. At issue were allegations by Appellant against the

complaining patient of alleged drug use and an apparent improper

attempt by Appellant to disclose the complainant's private medical

records. The court reasoned that because there were questions about

the drug use of the complainant/patient, the confidentiality of her

medical records should not take precedence over a litigant's rights to

discover exculpatory evidence. The court determined that because the

complainant allegedly used prescription drugs, her credibility (or lack of

it) gave rise to a substantial question of law as it related to the issuance

of a temporary injunction and thus, Appellant might ultimately prevail

on the merits.

      Finally, in addressing the equities prong of Maupin, the circuit

court held that the equities lay in favor of Appellant. The court reasoned

that, even though protecting the public from physicians like Appellant is

important, such considerations were insufficient to overcome the equities

in his favor, which the court found to include: 1) the fact that no other

complaints had been filed after the one in question (although it should be




                                      4
    noted that an additional grievance was filed on September 5, 2008); 2 2)

    Appellant presented a petition of support with several hundred

    signatures; 3) a large support group of women in yellow t-shirts appeared

    in court with him; 3 4) the County he practices in is a Health

    Professionals Shortage Area (HPSA); and 5) Appellant works for the Ohio

    County Jail and is the medical director for three (3) nursing homes in

    Ohio County. The circuit court held that the charges against Appellant

    were serious, but that the "status quo" of the past eighteen (18) months

    rendered the injunction appropriate here. 4

          Subsequent to the trial court's ruling, the KBML filed an appeal in

    the Court of Appeals, seeking a stay of the temporary injunction issued

    by the circuit court. The Court of Appeals held that the trial court

abused its discretion when it determined, pursuant to CR 65.04, that

immediate and irreparable injuries were present in this case and ordered

that the temporary injunction order be stayed. Appellant now seeks

additional review by this court.

                                      Analysis




2     This grievance was frOm a former co-worker who stated, "I left because I
      could no longer look into the eyes of the women he had sexually molested
      and be a part of that perverted office."
3    The trial court reasoned that because a large group of supporters, mainly
     women, had "come a long way" to support Appellant, he was entitled to the
     weight of equities in his favor.
4    We note that the trial court's opinion included some factual inconsistencies,
     including referencing Appellant as Dr. Ebert, and referencing the action as a
     motion for a stay of an emergency order of suspension.

                                          5
          Appellant argues that the Court of Appeals' stay of the trial court's

grant of temporary injunction was improper and requests relief from this

Court pursuant to CR 65.09. "Under CR 65.09 our review is limited to

those cases which demonstrate 'extraordinary cause,' and we have noted

that 'abuse of discretion by the courts below can supply such cause."'

Price v. Paintsville Tourism Com'n, 261 S.W.3d 482, 483 (Ky. 2008)

(quoting National Collegiate Athletic Association v. Lasege, 53 S.W.3d 77,

84 (Ky. 2001)) (emphasis added). Appellant's motion, however, does not

meet this standard.

      CR 65 governs injunctive relief in Kentucky. It states that a

temporary injunction may be granted during the pendency of an action if

it is clearly shown that the Appellant's rights are being, or will be,

violated and the Appellant will suffer immediate and irreparable harm.

See id.

      This rule has been construed as requiring the trial court to
      deny injunctive relief unless it finds (1) that the Appellant's
      position presents "a substantial question" on the underlying
      merits of the case, i.e. that there is a substantial possibility
      that the Appellant will ultimately prevail; (2) that the
      Appellant's remedy will be irreparably impaired absent the
      extraordinary relief; and (3) that an injunction will not be
      inequitable, i.e. will not unduly harm other parties or
      disserve the public. (internal citations omitted).

Price, 261 S.W.3d at 484 (emphasis added); see also Sturgeon Mining Co.

v. Whymore Coal Co., Inc., 892 S.W.2d 591, 592 (Ky. 1995) (Rule 65
    "requires that for a temporary injunction to be granted, it must be

    `clearly shown . . . that the movant . . . will suffer immediate and

    irreparable injury, loss, or damage pending a final judgment in the

    action."').

           The trial court held that Appellant satisfied these elements;

    however, the Court of Appeals held, in its brief opinion, that the

irreparable injury found by the trial court did not rise to the level needed

to grant the injunction and that the trial court abused its discretion

when it decided otherwise.

           Having reviewed the complained of irreparable harm, the

standards enunciated in Maupin, and having considered the Court of

Appeals: terse determination, we agree with the Court of Appeals and find

the stay of the temporary injunction proper for reasons that the trial

court abused its discretion. However, we find it necessary to fully

analyze this matter, pursuant to all the standards set forth in Maupin.

          In the present matter, Appellant claims a temporary injunction is

necessary and that - because he is a solo practitioner and the KBML

restriction will allegedly take away seventy (70) percent of his clients - he

will not be able to pay the salaries of his staff or all the costs of

maintaining his business, amounting to irreparable harm. 5 In order to



5     We note that Appellant is a solo practitioner of his own volition. He
      previously employed a doctor that was facing similar charges to Appellant,
      and that doctor was forced to resign. Moreover, another doctor decided he
      could no longer work in Appellant's office because, "he could no longer look
      into the eyes of the women he [Appellant] had sexually molested." That

                                           7
    obtain a preliminary injunction, the harm that would result in the

    absence of the injunction must be irreparable, not merely substantial.

    See Sampson, 415 U.S. at 61, 90 (1974). 6 Further, "mere injuries,

    however substantial, in terms of money, time and energy necessarily

    expended in the absence of a stay, are not enough."       Sampson, 415 U.S.

    61, 90 (1974) (quoting Virginia Petroleum Jobbers Ass'n v. Federal

    Power, 259 F.2d 921, 925 (D.C. Cir. 1958)). See Zirkle v. District of

    Columbia, 830 A.2d 150, 1256-1257 (D.C. 2003) ("For it is well

established that economic and reputational injuries are generally not

irreparable.").

          Appellant's claim that the Board's restriction will take away

seventy (70) percent of his clients and force him to close his business is

lacking and without proof. "An injunction will not be granted on the

ground merely of an anticipated danger or an apprehension of it, but

there must be a reasonable probability that injury will be done if no

injunction is granted." Hamlin v. Durham, 235 Ky. 842, 32 S.W.2d 413,

414 (1930). The current restriction allows Appellant to continue to

practice medicine even though he has been the subject of sixteen (16)

complaints of sexual misconduct over the past nineteen (19) years and


     doctor subsequently filed his own grievance against Appellant, which is
     currently pending.
6    There is no evidence to support Appellant's claim that he will lose seventy
     (70) percent of his business. Further, the restriction allows him to continue
     to practice, where he has the opportunity to gain new patients, as long as
     they are male. While the inconvenience to Appellant may be substantial, it
     cannot be characterized as irreparable under these circumstances.

                                          8
the hearing officer actually recommended complete revocation of his

license.

          Nor do we find that Appellant has established the requisite

"substantial possibility" that he will prevail on the merits. To support a

temporary injunction, one must show that a substantial question exists

that tends to create a "substantial possibility" that the Appellant will

ultimately prevail on the merits. See Price, 261 S.W.3d at 484 (emphasis

added).

          The hearing officer is charged with the duty of judging the

credibility of witnesses and weighing the evidence. See Kentucky State

Racing Comm'n v. Fuller, 481 S.W.2d 298, 307-308 (Ky. 1972); see also

Wheatley v. Shields, 292 F. Supp. 608 (D.C. 1968). KRS 13B.150(2)

states:

      The court shall not substitute its judgment for that of the
      agency as to the weight of the evidence on questions of fact .
      .. unless it finds the agency's final order is:

      (a) In violation of constitutional or statutory provisions;

      (b) In excess of the statutory authority of the agency;

      (c) Without support of substantial evidence on the whole
          record;

      (d) Arbitrary, capricious, or characterized by abuse of
          discretion;

      (e) Based on an ex parte communication which substantially
          prejudiced the rights of any party and likely affected the
          outcome of the hearing;




                                        9
      (f) Prejudiced by a failure of the person conducting a
          proceeding to be disqualified pursuant to KRS
          13B.040(2); or

      (g) Deficient as otherwise provided by law.

      Therefore, the trial court could not find that there was a clear

abuse of discretion when the hearing officer found that the grievant was

a credible witness and that her statements were credible. Thus, the trial

court abused its discretion when it held that the possible drug use and

psychological history of the complainant created a substantial question

(as to her credibility) supporting the trial court's issuance of the

temporary injunction.

      Appellant's sole assertion was that complainant's patient chart

listed medication that is used primarily for treating bipolar or

schizophrenia disorders. But, Appellant cannot assert that complainant

has ever been treated for either of these conditions. Furthermore, as

conceded by Appellant, complainant's chart was not created until after

the complaint was filed and Appellant had received notice of it.

Nonetheless, the mere fact that a complainant may, or may not, have

been using prescription medication at the time of the incident does not

amount to a "substantial possibility" of Appellant winning on the merits,

as required under Kentucky law. The hearing officer weighed this

evidence and reached the conclusions it deemed appropriate, as was his




                                      10
    authority to do so. Corn. Transp. Cabinet Dept. of Vehicle Registration v.

    Cornell, 796 S.W.2d 591, 594 (Ky. App. 1990).

          Finally, when balancing the equities of the case, it was an abuse of

    discretion for the trial court to rule that the equities favored Appellant.

    Appellant's actions during the course of the proceedings caused him to

    be indicted on criminal charges, 7 because he began accessing

    complainant's KASPER records after the complaint was filed. 8 Appellant

    also has a well developed pattern of behavior here that is documented by

    the numerous complaints filled against him.

          Accordingly, we hold the trial court abused its discretion when it

determined that the equities in this case favor Appellant; relying on facts

such as: (1) no other complaints have been filed since the complaint in

question; 9 (2) a large group of women in yellow shirts had showed up to

support Appellant; and (3) that the large group had to travel a long way

to support Appellant. We do not see how these factors outweigh the fact



7   Unclean hands are an absolute bar to equitable relief, including injunctive
      relief. Time Finance Co. v. Varney, 253 S.W.2d 233 (Ky. 1952).
8 KASPER stands for, Kentucky All Schedule Prescription Electronic Reporting.
Physicians may access KASPER reports only for the "purpose of providing medical or
pharmaceutical treatment for a bona fide current patient." KRS 218A.202(6)(e).
Further, "Obtaining information under this section not relating to a bona fide specific
investigation, shall be a Class D felony for the first offense and a Class C felony for each
subsequent offense." KRS 218A.202. Appellant attempted to access complainant's
KASPER records after she had terminated her doctor-patient relationship with
Appellant. Therefore, pursuant to these repeated violations, Appellant was indicted on
nine (9) felony charges regarding his improper accessing of these KASPER records.

9    We note again that there has been another complaint filed, this one by an
     employee of Appellant who stated "he could no longer look into the eyes of
     the women he [Appellant] had sexually molested."

                                             11
that Appellant has had numerous valid complaints filed against him,

over a long period of time, that show a pattern of sexual misconduct.

      Appellant has not established that there is a substantial possibility

that he will prevail on the merits, nor has he satisfied the irreparable

harm requirement, or shown that the equities in the case favor him.

Women patients are entitled to a doctor who practices good medicine.

They should not be at the mercy of a physician who has repeatedly

committed sexual misconduct.

      Therefore, Appellant has failed to demonstrate the "extraordinary

cause" necessary for relief from the Court of Appeals' ruling. Because we

agree with the determination of the Court of Appeals and find that the

trial court abused its discretion, Appellant's motion for relief under CR

65.09 is hereby denied.

      All sitting. All concur.

      ENTERED: May 21, 2009.




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