SMOCK v. MISSOURI STATE BOARD OF REGISTRATION FOR HEALING ARTS (2026)

David Smock (“Smock”) appeals from a judgment of the Circuit Court of Cole County that affirmed a decision of the Missouri State Board of Registration for the Healing Arts (the “Board”) to revoke Smock's physician and surgeon license. On appeal, Smock argues that the trial court erred ¹ in affirming the Board's decision to revoke his license because (1) the Board refused to consider evidence developed after the hearing before the Administrative Hearing Commission (“AHC”), and because (2) the Board allowed Board counsel to ask Smock an excessive number of questions that resulted in his invocation of his Fifth Amendment right against self-incrimination. The circuit court's judgment upholding the Board's decision is affirmed.

Background

On December 14, 2022, the Board filed a complaint seeking emergency suspension of Smock's license on multiple statutory grounds relating to allegations that Smock engaged in sexual misconduct with a minor child (“Child”). The Board attached evidence to the complaint related to the criminal charges that had been brought against Smock in separate proceedings, including a transcript of testimony from Child indicating that Smock placed his hand on Child's penis when Child was thirteen years old under circumstances suggesting no purpose other than Smock's sexual gratification.

On December 19, 2022, the AHC found cause for the emergency suspension of Smock's license based on findings of probable cause that Smock engaged in sexual misconduct with a minor, and that Smock is a serious danger to the public. The AHC ordered the suspension of Smock's license pending the outcome of the case.

On April 11 and 12 of 2023, the AHC held a hearing under section 334.102.4 ² to determine if there was cause for discipline. The Board presented evidence in the form of affidavits, certified court records, and witness testimony, including testimony from Child, indicating that Smock had engaged in sexual misconduct with Child on multiple occasions. Child's testimony indicated that Child knew Smock through church and school and had gone to live with Smock for approximately 18 months. Child testified that Smock touched Child's penis on numerous occasions, that Smock put his mouth on Child's penis, and that Smock attempted to put his penis in Child's anus.

When Smock was called to testify, Smock invoked the Fifth Amendment right against self-incrimination in response to numerous questions including whether he knew Child, whether Child stayed at Smock's house, whether Child spent the night at the house, whether Child had a bedroom at the house, what his own cell phone number was, whether he had ever met Child's mother, whether he had ever gone on an overnight trip with Child, and numerous other questions related to whether Smock had engaged in specific sexual acts with Child.

Smock also presented evidence at the hearing including witness testimony and exhibits.

On December 7, 2023, the AHC issued a decision finding cause to discipline Smock's license. The AHC issued findings of fact indicating that Smock had persistently sexually abused Child, who was a minor and was Smock's patient, and who had lived with Smock for approximately 18 months. The AHC found that Child had provided credible testimony regarding the abuse. Among its findings, the AHC found Smock engaged in sexual conduct with Child while Child was Smock's patient and that the nature of Smock's misconduct made him a serious danger to the health, safety, and welfare of minors. The AHC ordered that Smock's license remain suspended pending a disciplinary hearing before the Board pursuant to section 334.102.4(3).

The Board held a hearing on July 25, 2024, during which it heard evidence and argument relating to the appropriate level of discipline to impose.³ During his testimony, Smock again invoked the Fifth Amendment numerous times in response to numerous questions.

On September 23, 2024, the Board issued an order, which revoked Smock's physician and surgeon license, and which provided that Smock was prohibited from applying for reinstatement for a period of seven years. The Board's decision recognized that the AHC had previously found numerous grounds for discipline based on findings that Smock had engaged in the sexual abuse and exploitation of a minor who was also Smock's patient.

Smock sought judicial review in the circuit court of Cole County. The circuit court affirmed the Board's decision.⁴

Smock now appeals to this Court.

Standard of Review

On appeal from the circuit court's judgment following judicial review of an agency decision in a contested case, we review the action of the agency rather than the action of the circuit court. See Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009). The scope of judicial review of such contested cases is provided by section 536.140.2.⁵ Under Section 536.140.2, review may extend to a determination of whether the action of the agency

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

Analysis

Smock raises two points on appeal. In his first point, he argues that the trial court erred in affirming the Board's decision because the Board refused to consider evidence developed following the hearing before the AHC. In his second point, he argues that the trial court erred in affirming the Board's decision because the Board allowed its counsel to ask Smock questions to which he invoked his right not to incriminate himself.

Before addressing Smock's points on appeal, we note that Smock asserts error with respect to the action of the trial court. However, on appeal from the circuit court's judgment following judicial review of an agency decision in a contested case, we review the action of the agency rather than the action of the circuit court. See Albanna, 293 S.W.3d at 428. While Smock asserts error with respect to actions of the trial court, he does so with respect to the trial court's affirmance of particular actions of the Board. Thus, Smock's points relied on can easily be read as challenging the actions of the Board such that any technical deficiency due to asserting error based on actions of the trial court does not prevent review of his arguments.

Point One

In his first point, Smock argues that the Board's decision was made upon unlawful procedure because the Board refused to consider evidence developed subsequent to the AHC hearing, which could have impeached the Board's witnesses.⁶ Smock argues that this evidence might have affected the Board's decision to revoke his license.

As an initial matter, we note that the disciplinary proceedings in this case under section 334.102 included two hearings and two decisions before two different administrative bodies.⁷ Following the Board's complaint, the AHC held a hearing to determine whether there was cause for discipline. See § 334.102.4(1). Following the hearing, the AHC issued its decision including findings of fact and conclusions of law, in which it found that cause for discipline existed due to its findings that Smock had repeatedly sexually abused Child. See § 334.102.4(3). Following the AHC's decision, the Board held a subsequent hearing to determine the appropriate level of discipline. See § 334.102.4(3). The Board then entered its order revoking Smock's license. See § 334.100.4.

Smock's first point on appeal challenges the Board's action with regard to evidence at the disciplinary hearing before the Board, which was for the purpose of deciding the appropriate level of discipline for his conduct. This disciplinary hearing before the Board took place after the AHC had already issued findings of fact in which it found that Smock had engaged in the conduct of persistently sexually abusing Child. Smock does not challenge the procedure that led to the AHC decision. Smock also does not challenge the findings in the AHC decision. Instead, he takes issue with the procedure at the subsequent hearing before the Board to determine the appropriate sanction for such conduct.⁸

During his opening statement at the disciplinary hearing before the Board, Smock's counsel indicated that Smock maintained his innocence and that he was requesting that the Board suspend his license indefinitely until the conclusion of the criminal matter rather than revoke his license. Smock's counsel then began to discuss evidence from depositions taken in the criminal case and indicated that Smock would be asking the Board to take notice of such evidence. Smock's counsel indicated that he understood that the Board had requested that documents from the criminal case be presented to the Board and indicated his hope that the Board had already seen the documents. Smock's counsel indicated that the documents involved contradictory testimony regarding the accusations against Smock such that the deposition testimony provided in the criminal case would bear on the credibility of the accusations made by Child. Smock's counsel provided certain details from the depositions in the criminal case and indicated that such evidence would cast doubt on Smock's guilt.

The Board then presented evidence in the case, including calling Smock as a witness.

When the Board asked if Smock had any witnesses or evidence for the Board, Smock's counsel called Smock as a witness and asked Smock if he had brought some documents with him. Smock indicated that the documents he had brought were depositions that were taken after the AHC hearing. Smock was then asked by his counsel to describe the depositions.

Counsel for the Board then expressed an objection to the line of questioning and indicated that he would be objecting to the admission of any of those depositions on the ground that depositions from other cases were not admissible if the opposing party was not present. Board counsel further objected on the grounds of foundation and hearsay. Board counsel further objected on the grounds of relevance. Board counsel indicated that the AHC had already issued findings regarding the underlying conduct and that the evidence was not related to rehabilitation or mitigation but instead an attempt to challenge the prior AHC findings in a manner inappropriate for the subsequent disciplinary hearing.

Smock's counsel then argued that the Board could take judicial notice of any document of which a court may take judicial notice. Smock's counsel argued that the depositions were applicable to the Board's decision because the depositions showed “certain contradictory evidence and new evidence that has come out since” the prior AHC hearing.

Board counsel objected to the Board taking judicial notice and argued that courts would not take judicial notice of depositions in other cases if a party in the current case was not present. Smock's counsel argued that the State in the criminal case had the same interest as the Board and that it was relevant if witnesses had made statements that contradicted their prior statements. Board counsel then questioned Smock's counsel's characterization of the evidence and reiterated his objection and argument that the depositions should not come into evidence. Smock's counsel reiterated the argument that the Board could take judicial notice of the depositions.

The Board President then indicated that the argument by Counsel for the Board was sustained.

The following exchange then took place:

Smock's counsel: Okay. So I suppose that you no longer want me to go along the lines of questioning about what is contained in these transcripts or documents just to clarify.

Board counsel: I would have the same objections to any questioning about what's in the documents as well.

Smock's counsel: Very well. No further questions for Dr. Smock now.

Generally, appellate courts will not review a claim of error regarding the exclusion of evidence without a specific and definite offer of proof. Boyd v. State Bd. of Registration for Healing Arts, 916 S.W.2d 311, 316 (Mo. App. E.D. 1995). Section 536.070(7) allows a party in a contested case to preserve evidence in the record at the party's request when an objection is sustained, such that the requirement of a specific and definite offer of proof has generally been interpreted to apply to hearings in contested cases such as the disciplinary hearing in this case. See Boyd, 916 S.W.2d at 316 (citing section 536.070(7)).

The record on appeal lacks clarity regarding the evidence Smock claims should have been admitted. Although Smock argues that such evidence was admissible, and points to his counsel's description of deposition testimony of numerous different witnesses in his counsel's opening statement at the disciplinary hearing, Smock fails to direct this Court to any place in the record where the content of the excluded evidence is located. Following the Board President's statement sustaining Board counsel's objection regarding the evidence, Smock did not request to introduce such evidence into the record as an offer of proof in order to preserve the evidence in the record. Smock certainly never directs this Court's attention to where he requested to make such an offer of proof. It is actually not clear that Smock ever definitively requested that any document be admitted into evidence.⁹

Moreover, Smock's briefing on appeal fails to make an argument that the evidence was admissible at the disciplinary hearing. Board counsel made numerous objections to the discussed evidence, including objections on the basis of hearsay, relevance, and foundation. The Board President indicated that Board counsel's argument was sustained. On appeal, Smock cites to Brown v. State Bd. of Accountancy, 588 S.W.3d 519, 523 (Mo. App. E.D. 2019), to argue that the evidentiary record is not closed by the AHC's decision. However, even if that principle was generally applicable, Smock makes no attempt to set forth a standard of admissibility for evidence at a hearing before a disciplinary board or to explain why the evidence he claims was wrongfully excluded – the contents of which remain unknown to this Court – was admissible in light of the multiple distinct objections raised at the hearing. Further, it appears from the record as though Smock wished to admit multiple distinct documents relating to deposition testimony. Yet, on appeal Smock fails on appeal to make any distinction between the various documents that he may have wanted to introduce or to make any specific arguments that any particular exhibit was admissible.

Point denied.

Point Two

In his second point, Smock argues that the Board's decision was made upon unlawful procedure or without a fair trial due to the questions the Board asked Smock at the disciplinary hearing. He argues that the Board allowed its counsel to ask Smock questions that counsel knew would result in Smock's invocation of his Fifth Amendment right 41 times. Smock argues that the Board was not responsible for determining whether he had engaged in heinous conduct, as the AHC had already established his liability for discipline following the hearing before the AHC. He asserts that the Board repeatedly asked questions that would result in his invocation of his Fifth Amendment right in order to humiliate him before his peers who would determine his fate.

However, Smock never objected to this line of questioning at the disciplinary hearing. By failing to raise an objection at the hearing regarding the line of questioning that he now asserts was improper, Smock failed to preserve this issue for appeal.

Generally, an appellate court “will not set aside an administrative action unless the agency has been given a prior opportunity to consider and rule on the issue being raised on appeal.” Thomas v. Div. of Emp. Sec., 707 S.W.3d 873, 876 (Mo. App. E.D. 2025) (citation omitted).

During the hearing, the Board called Smock to testify. The Board asked Smock a significant number of questions to which Smock invoked the Fifth Amendment. A few examples of such questions included whether Child lived at Smock's house, whether Smock touched Child inappropriately, whether Smock was Child's physician, whether Smock had sex with Child, and whether Smock was going to deny that he had sex with Child.

At no point during the hearing did Smock raise an objection with the Board regarding the line of questioning that he now claims was impermissible. Smock was represented by counsel at the hearing before the Board. Smock was informed that the Board President would serve the function of accepting exhibits and ruling on objections. However, when the challenged line of questioning occurred, Smock did not raise an objection to the line of questioning. Thus, Smock did not give the Board an opportunity to consider and rule on the issue he now attempts to raise on appeal. By failing to do so, Smock has failed to preserve the issue for appeal.

Point denied.

Conclusion

The circuit court's judgment upholding the Board's decision is affirmed.

FOOTNOTES

1.   On appeal from the circuit court's judicial review of an agency decision in a contested case, we review the action of the agency rather than the action of the circuit court. See Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009). As discussed in our analysis section, we do understand Smock's points relied on to be challenging actions of the Board.

2.   Unless otherwise indicated, statutory references are to RSMo 2016, as updated.

3.   Additional details from this hearing related to the arguments raised in Smock's points on appeal are provided in discussion of Smock's points on appeal.

4.   Section 334.102.8 provides that final decisions of the AHC or the Board under section 334.102 are subject to judicial review pursuant to Chapter 536, RSMo. Section 536.100 generally provides that persons aggrieved by final decisions of administrative agencies in contested cases are entitled to judicial review of such decisions pursuant to sections 536.100 to 536.140. Section 536.110.1 provides that review proceedings for such cases may be initiated by filing a petition in the circuit court of a county with proper venue. Section 536.110.3 governs venue and provides that the circuit court of Cole County is a court with proper venue of such cases. Regarding the issue of when a case involving decisions of the AHC and a disciplinary board are considered final for purposes of review, section 621.145 indicates that the AHC decision is not deemed final until the disciplinary order is entered by the agency, and that the action of the AHC and the disciplinary order are to be treated as one decision.

5.   The scope of review provided by section 536.140.2 includes the scope of review required by article V, section 18 of the Missouri Constitution by providing that such review may extend to a determination of whether the action of the agency is unauthorized by law and whether it is unsupported by competent and substantial evidence upon the whole record.

6.   The only witness the Board called at the disciplinary hearing before the Board was Smock.

7.   Although disciplinary proceedings such as the one underlying this appeal involve decisions by the AHC and the disciplinary board, the AHC decision is not to be deemed final until the disciplinary order is entered by the agency, and the two decisions are treated as one decision for purposes of judicial review. See § 621.145.

8.   We note that Smock's briefing on his second point directly asserts that the Board at the disciplinary hearing had “no responsibility to determine” facts such as “whether he had engaged in heinous criminal conduct” as his “liability for discipline was established by the Decision of the Administrative Hearing Commission.”

9.   Board counsel's objection was made upon Smock being asked to describe depositions that he had brought to the hearing such that it is not clear from the record what Smock had brought or what he was going to describe at that time. Although the record indicates that Smock's counsel asked that notice be taken of certain evidence, it is not clear to this Court what such evidence entailed or whether the Board had been provided such evidence. In any case, Smock makes no argument on appeal regarding the circumstances in which notice can or must be properly taken by the Board.

Thomas N. Chapman, Judge

All concur.