Monthly Archives: April 2011

Robison, Belaustegui, Sharp & Low Successfully Defends Civil Rights Lawsuit Against the Nevada State Board of Medical Examiners; Federal Court Accepts Novel Arguments On Immunity and Stay of Discovery.

February, 2011

On March 25, 2011, Judge Kent Dawson of the United States District Court entered an Order dismissing a lawsuit against The Nevada State Board of Medical Examiners, an RBSL client. Michael Sullivan, Barry Breslow, and Frank Gilmore represented the Board in defense of claims filed by Dr. Kevin Buckwalter, alleging violations of his civil rights under 28 U.S.C. 1983. Buckwalter sued the Board for suspending his right to prescribe, administer and dispense controlled substances, alleging that the Board’s conduct violated his constitutional right to due process. On behalf of the Board, RBSL filed a Motion to Dismiss, arguing that federal law immunizes the Board from civil rights lawsuits, and, additionally, the federal court should abstain from hearing the case, pending a formal hearing in front of the Board through the Nevada’s Administrative Procedures Act. Judge Dawson agreed with the Board and dismissed the entire Complaint.

In a highly publicized case covered closely by the Las Vegas press, in 2008 Dr. Buckwalter had been investigated by the Drug Enforcement Agency and the Board of Medical Examiners as the result of a series of his patient deaths resulting from overdose of controlled substances. The investigation led to charges being filed against Dr. Buckwalter before the Board, accusing Buckwalter of four counts of malpractice. After an emergency closed-door hearing, the Board determined that Buckwalter’s conduct “pose[d] a threat to the health and safety of his patients and to the general public” and the Board suspended his ability to prescribe, administer and dispense controlled substances.

Almost two years after the suspension, Buckwalter filed a Complaint against the Board, alleging that the emergency meeting and the resulting suspension deprived him of his constitutional right to due process. Buckwalter sought damages, injunctive relief, and attorney’s fees.

Responding on behalf of the Board, RBSL filed a Motion to Dismiss the claims, arguing that the doctrine of “absolute immunity” precluded physicians from suing the Board for violations of civil rights. Citing an analogy to the immunity enjoyed by Judges and Prosecutors, RBSL argued that the function of the Board is “judicial or quasi-judicial”, and, as such, the Board should be absolutely immune from lawsuits under 28 U.S.C. 1983.

While the Motion to Dismiss was pending, RBSL filed a Motion asking the Court to suspend all document discovery and depositions, arguing that the Board should not have to be burdened with the costs of discovery while the threshold issue of absolute immunity was pending. In a hotly contested hearing, the Federal Magistrate Judge heard arguments from counsel on the Motion to Stay. Buckwalter’s lawyers argued that a stay of discovery was procedurally irregular and would frustrate justice. In a Recommendation For Order submitted to the Court, the Magistrate agreed with RBSL that a stay of discovery was proper until “the threshold issue of immunity is decided.” Because no federal judge in Nevada had previously published an opinion on the issue, the decision was a landmark ruling in the effort to protect the Board from future vexatious discovery practices in future lawsuits.

After discovery was stayed by the Magistrate Judge, the Court ruled on the Board’s Motion to Dismiss. The court agreed with RBSL that the function of the Board is akin to that of a Judge or Prosecutor, and that the Board should be entitled to absolute immunity for all “non-ministerial acts.” The Court then agreed with RBSL that the suspension of Buckwalter’s medical license was a “non-ministerial” act, and the law provided the Board not just a defense against Buckwalter’s claims, but a full immunity from suit.

The Court also set new legal precedent when it adopted RBSL’s argument that the Federal Courts should abstain from exercising jurisdiction over a federal case while a parallel action is pending in front of the Board pursuant to Nevada’s Administrative Procedures Act. Relying on the United States Supreme Court case of Younger v. Harris, 401 U.S. 37 (1971), RBSL argued that the Court should dismiss the case under the Younger Abstention Doctrine. The Court agreed, finding that all four elements of the Younger Doctrine were present: (1) the Board’s administrative hearings were a “state action” that were judicial in nature, (2) the proceedings were ongoing, (3) the administrative hearings implicated an important state interest, and (4) the pending administrative proceedings afforded Buckwalter an adequate remedy. The Court’s opinion on the application of the Younger Abstention Doctrine will be an effective shield against future lawsuits by physicians who improperly bring federal lawsuits without having first exhausted their available Administrative procedures.

Buckwalter has appealed the decision to the Ninth Circuit Court of Appeals. The briefs are due this summer and the case has been set for priority oral argument.

FCG