Administrative Hearing Commission

Richard Maseles, Esquire

Physician’s license subject to discipline for physician’s failure to submit to evaluation after argument with patient’s mother. State Board of Registration for Healing Arts v. Johnson, No. 10-2118 HA Mo. A.H.C., December 22, 2011), Winn, C.

When Johnson visited his patient in a hospital, he got into an argument with the patient’s mother over the quality of the patient’s care. Hospital officials decided to suspend Johnson’s clinical privileges as an interim precautionary action, and continued the suspension until Johnson completed an evaluation to address potential behavior issues. Johnson refused to submit to the evaluation. After the suspension lasted more than 30 days, the hospital reported it to the National Practitioner Data Bank. Johnson never reached agreement with the Board over who would conduct an evaluation. The Board sought to discipline Johnson’s license.

Discipline was justified under § 334.100.2(4)(g) because the hospital had taken a final disciplinary action, and the action was based on a factual predicate related to unprofessional conduct. The conduct was not his behavior with the patient’s mother, but his refusal to undergo an evaluation afterward. His conduct with the patient’s mother was not grounds for discipline under § 334.100.2(4). He only briefly lost his temper, made no threatening gestures, and left when he could not reason with or calm the mother.

Airline not entitled to refund of sales tax for jet fuel sold at cost to smaller airlines operating flights under an air services agreement, because sales were at retail. American Airlines, Inc. v. Director of Revenue, No. 08-0974 RS (Mo. A.H.C., January 6, 2012), Dandamudi, C.

AA had air services agreements with two smaller airlines to fly certain routes under the AmericanConnection brand, but the smaller airlines maintained control over flight operations and assumed risks. The aircraft were dedicated to American Connection flights.  AA bought jet fuel for its own use and for use in AmericanConnection flights, and paid Missouri tax. It sought a refund, which the Director denied.

AA was not entitled to a refund. The fuel sales were sales at retail under § 144.010.1(10). Title and ownership of the fuel was transferred, because the smaller airlines paid for the fuel, there was no explicit agreement to the contrary, and they exercised dominion and control over the fuel once transferred. The branding of the flights as AmericanConnection or AA’s role in choosing the type of aircraft did not control over those aspects. The air services agreements specifically said that the smaller airlines were independent contractors. The fact that AA sold them the fuel at cost did not mean that it failed to receive a valuable consideration for it. There was also no exemption from tax under § 144.805, because neither paid more than $1,500,000 in any relevant year.