Leroy Yates, Jr. v. Iowa Board of Medicine

IN THE COURT OF APPEALS OF IOWA

No. 20-1581
Filed August 31, 2022

LEROY YATES, JR.,
Plaintiff-Appellant,

vs.

IOWA BOARD OF MEDICINE,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

A cosmetic surgeon challenges a judicial review order affirming Iowa Board

of Medicine findings of professional incompetency, practice harmful to the public,

unethical and unprofessional conduct, inappropriate prescribing, and improper

record management. AFFIRMED.

Benjamin D. Rust II of The Law Offices of Benjamin D. Rust II, L.L.C.,

Orlando, Florida, for appellant.

Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., Badding, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

TABOR, Presiding Judge.

LeRoy Yates, an obstetrician-gynecologist by training and most recently a

cosmetic surgeon by practice, appeals a judicial review order upholding Iowa

Board of Medicine (the Board) sanctions. Dr. Yates argues the district court erred

in finding substantial evidence to support the Board’s findings. He also alleges

prosecutorial misconduct, conflicts of interest, and a due process violation.

Because the Board’s decision is supported by substantial evidence, we affirm. We

do not reach the merits of his other objections because he failed to preserve error.

I. Facts and Prior Proceedings

Dr. Yates graduated from medical school in 1986 and completed a

residency in obstetrics and gynecology in 1990. He practiced in that field for over

two decades. He also took up cosmetic surgery, launching his own clinic in 2012.

At the Diamond Medical Spa and Vein Clinic in Davenport, Dr. Yates specialized

in liposuction—doing hundreds of procedures between 2012 and 2017. Among

those procedures, Dr. Yates performed fifty autologous fat transfer breast

augmentations and more than two dozen “Brazilian butt lifts.”1

Three years after Dr. Yates opened his clinic, the Board started receiving

complaints about his practice. Three plastic surgeons from the Quad Cities and

one former patient raised issues of surgical incompetency, poor patient care, and

poor record keeping.2

1 One of Dr. Yates’s patients described this procedure: “He did liposuction and then
he injected the fat he removed” back into the buttocks “to plump certain areas up.”
2 Dr. Benjamin Van Raalte also alleged that Dr. Yates engaged in false advertising,

a count rejected by the Board. Dr. Yates had a contentious history with
Dr. Van Raalte, who performed liposuction on Yates’s wife, M.Y., in 1995. M.Y.
was dissatisfied with the results and went to her husband for further liposuction
3

In response to those complaints, the Board conducted a peer review of

Dr. Yates’s patients. That review closed in July 2016 with a statement of charges,

including professional incompetency; practice harmful or detrimental to the public;

unethical or unprofessional conduct; inappropriate prescribing; fraud in

representations about skill or ability; knowingly making misleading, deceptive,

untrue, or fraudulent representations in the practice of medicine and surgery; use

of untruthful or improbable statements in advertisements; and improper

management of medical records.

As the district court observed, after the Board issued its charges, this matter

“took a winding path.” It was continued from September 2016 to February 2017 at

Dr. Yates’s request. Then the administrative law judge (ALJ) continued the

hearing again so that Dr. Yates could obtain a neuropsychological exam and a

clinical competency evaluation by the Center for Personalized Education for

Physicians (CPEP). After receiving those assessments, the Board amended its

charges in October 2017. It also issued an emergency adjudicative order

concluding that there was a “serious immediate threat to patient health” if Dr. Yates

continued to practice before final resolution of the pending charges. On Dr. Yates’s

motion, in February 2018 the Board amended that order to remove allegations that

he suffered from a medical condition that impaired his ability to practice medicine.

Still, the amended order prohibited him from engaging in cosmetic surgery.

and a fat transfer breast augmentation a year later. The Board considered
Dr. Yates’s treatment of his own wife in its factual findings and tied that finding to
the count for inappropriate prescribing of controlled substances.
4

Following several more continuances and a second peer review to evaluate

another patient’s case, the Board amended its charges again in December 2018.

The Board held a hearing in June 2019 and issued its findings in December 2019.

The Board found that Dr. Yates deviated from the accepted standard of practice in

all eleven patient cases that it investigated.3 The decision cited Dr. Yates for five

violations: professional incompetency, practice harmful or detrimental to the public,

unethical or unprofessional conduct, inappropriate prescribing, and improper

management of medical records. The Board ordered Dr. Yates to pay a civil

penalty of $5000. It also prohibited him from practicing cosmetic surgery until he

completed a Board-approved training to remedy deficiencies in his knowledge and

skills as outlined in his CPEP evaluation. Finally, the Board imposed a five-year

term of probation for Dr. Yates’s return to the practice of cosmetic surgery.

Dr. Yates sought judicial review of the Board’s decision. The district court

rejected his challenges. He now appeals that judicial review order.

II. Scope and Standards of Review

We review contested case proceedings before licensing boards for

correction of legal error. Christiansen v. Iowa Bd. of Educ. Exam’rs, 831 N.W.2d

179, 186 (Iowa 2013). Determining witness credibility and weighing the evidence

are tasks for the agency. Id. By contrast, our job is to be sure that the agency’s

findings are supported by substantial evidence. Id. at 192. If they are, we are

bound by them. Id. In other words, we do not reweigh the evidence. Burns v. Bd.

of Nursing, 495 N.W.2d 698, 699 (Iowa 1993). When interpreting administrative

3We will discuss his treatment of several of individual patients as we analyze
Dr. Yates’s substantial-evidence argument.
5

rules, we apply the principles governing statutory construction. Motor Club of Iowa

v. Dep’t of Transp., 251 N.W.2d 510, 518 (Iowa 1977). We grant the Board

“substantial deference when it interprets its own regulations,” so long as its

interpretation does not violate the rule’s “plain language and clear meaning.” See

Des Moines Area Reg’l Transit Auth. v. Young, 867 N.W.2d 839, 842 (Iowa 2015)

(citation omitted).

As for the judicial review decision, we apply principles from Iowa Code

chapter 17A (2016) to decide whether we reach the same conclusion as the district

court. Am. Eyecare v. Dep’t of Hum. Servs., 770 N.W.2d 832, 835 (Iowa 2009).

III. Violations of Iowa Rules of Appellate Procedure

Before addressing Dr. Yates’s appeal issues, we pause to discuss defects

in his briefing. “The Iowa Rules of Appellate Procedure govern the form and

manner for briefs filed in the supreme court.” Estate of DeTar, 572 N.W.2d 178,

180 (Iowa Ct. App. 1997). The appellant’s brief filed for Dr. Yates breaches the

rules of appellate procedure in many ways, technical and substantive.4 For

instance, the table of authorities does not refer to the pages of the brief where the

cases and code sections are cited. Iowa R. App. P. 6.903(2)(b). Also, the

statement of issues presented for review does not correspond to the issues

presented in the argument section and does not list authorities referred to under

each issue. Iowa R. App. P. 6.903(2)(c). And neither the statement of the case

nor the statement of the facts refers to the record or the appendix as required by

rule 6.904(4). Iowa R. App. P. 6.903(2)(e), (f). Those omissions make it difficult

4Before transferring this appeal to us, our supreme court granted a motion from
Florida lawyer Benjamin D. Rust II to appear pro hac vice on behalf of Dr. Yates.
6

to tell if the assertions in the brief are supported by the record. When it comes to

the argument section, Dr. Yates’s brief fails to include a statement addressing how

each issue was preserved for appellate review. Iowa R. App. P. 6.903(2)(g)(1). It

is also missing statements addressing the scope and standard of review. Iowa R.

App. P. 6.903(2)(g)(2). What’s more, the argument section cites few legal

authorities for its contentions. Iowa R. App. P. 6.903(2)(g)(3).

We may opt not to consider a party’s position when the brief flouts our

appellate rules. DeTar, 572 N.W.2d at 181; see also Inghram v. Dairyland Mut.

Ins. Co., 215 N.W.2d 239, 239 (Iowa 1974) (noting wholesale failure to comply with

the rules can lead to summary disposition of an appeal). Sometimes, as a matter

of grace, we will decide issues even when the brief falls short. See DeTar, 572

N.W.2d at 181. We grant Dr. Yates that grace only if we can sort through his claims

“without assuming a partisan role and undertaking [his] research and advocacy.”

Id.

IV. Analysis

A. Was the Board’s decision supported by substantial evidence?

Dr. Yates asks us to reverse the district court’s order because he insists the

Board’s decision was unsupported by substantial evidence.5 The Iowa

Administrative Procedure Act defines “substantial evidence” as “the quantity and

5 The Board asserts that Dr. Yates failed to state how he preserved error on this
and every other issue raised in his brief. But it acknowledges that the substantial-
evidence question is properly before us. So we choose to reach the merits on that
question. That said, Dr. Yates appears to challenge only the first four grounds
cited by the Board. Because he fails to mention the fifth and final ground, failure
to properly maintain medical records, any complaint about that basis for the
Board’s action is waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite
authority in support of an issue may be deemed waiver of that issue.”).
7

quality of evidence that would be deemed sufficient by a neutral, detached, and

reasonable person, to establish the fact at issue when the consequences resulting

from the establishment of that fact are understood to be serious and of great

importance.” Iowa Code § 17A.19(10)(f)(1). In reviewing the doctor’s challenge,

we do not speculate whether the record might support a different finding. See

Eaves v. Bd. of Med. Exam’rs, 467 N.W.2d 234, 237 (Iowa 1991). Instead, we limit

our analysis to whether substantial evidence supports the Board’s actual finding.

Id.

1. Professional Incompetency and Practice Harmful to the Public

We will address the Board’s first two grounds for sanctioning Dr. Yates in a

single division. First, the Board cited Dr. Yates for professional incompetency.

See Iowa Code §§ 147.55(2), 148.6, 272C.10(2). The Board’s administrative rules

define professional incompetency as, among other things:

c. A substantial lack of knowledge or ability to discharge
professional obligations within the scope of the physician’s or
surgeon’s practice;
d. A substantial deviation by the physician from the standards
of learning or skill ordinarily possessed and applied by other
physicians or surgeons in the state of Iowa acting in the same or
similar circumstances;
e. A failure by a physician or surgeon to exercise in a
substantial respect that degree of care which is ordinarily exercised
by the average physician or surgeon in the state of Iowa acting in the
same or similar circumstances;
f. A willful or repeated departure from or the failure to conform
to the minimal standard of acceptable and prevailing practice of
medicine and surgery or osteopathic medicine and surgery in the
state of Iowa . . . .

Iowa Admin. Code r. 653-23.1(2)(c)-(f).

Second, the Board cited Dr. Yates for practice harmful or detrimental to the

public. See Iowa Code §§ 147.55(3), 272C.10(3). The rules define that violation
8

as including, but not limited to, “the failure of a physician to possess and exercise

that degree of skill, learning and care expected of a reasonable, prudent physician

acting in the same or similar circumstances in this state, or when a physician is

unable to practice medicine with reasonable skill and safety as a result of a mental

or physical impairment or chemical abuse.” Iowa Admin. Code r. 653-23.1(3).

In chronicling these violations, the Board cited Dr. Yates for “poor patient

selection.” In other words, he agreed to perform cosmetic procedures on patients

who would not be considered good candidates either because their body mass

index was too high or too low, or because they were immunocompromised. A

glaring case was patient P.W., who was in remission after a lumpectomy and

radiation treatment for breast cancer. She was also taking an immunosuppressant

for psoriatic arthritis. Still, Dr. Yates performed an autologous liposuction with a

fat transfer breast augmentation. Afterward, P.W. suffered a post-operative

infection requiring a trip to the emergency room and a consultation with an

infectious disease specialist.

Another instance of failing to exercise a reasonable degree of care was

Dr. Yate’s treatment of patient A.L., who wanted liposuction with a fat transfer to

her buttocks. He first met with A.L. at a Las Vegas hotel, where he explained the

procedure. She later flew alone from Las Vegas to Davenport to undergo the

procedure, which started at 10:15 a.m. and continued into the evening. As A.L.

slipped in and out of consciousness she recalled Yates’s medical assistant leaving

for the day and his wife, M.Y., who was an emergency room doctor, arriving to

assist. M.Y. instructed A.L. to flip over on her stomach before Dr. Yates injected

the fat into her buttocks. A.L. reported “an immense amount of pain” at that point
9

in the surgery. Her blood pressure also dropped. And she vomited. After

completing the procedure, Yates told A.L. that she would have to spend the night

at their home. A.L. recalled that M.Y. had laid a plastic runner up the stairs to a

bedroom “so nothing would leak on the floor, on the carpet.” The next morning,

although A.L. was still “woozy,” the Yates urged her to shower and then put her on

a plane back to Las Vegas. The peer-review physicians concluded that “it was

highly unusual for a physician to bring a patient to his home following a surgical

procedure.” Instead, the standard of care dictated that A.L. be taken to a hospital

or other facility designed for patient monitoring.

Patients P.W. and A.L. are just two examples in the Board’s robust fact

findings that undergird these first two grounds for sanctioning Dr. Yates. The

Board’s order discusses at least seven other patients revealing incompetence in

Dr. Yates’s practice. On this record, we are convinced that substantial evidence

supports the Board’s findings.

In his appellant’s brief, Dr. Yates nibbles around the edges of the Board’s

findings—leaving the bulk of the evidence untouched.6 See generally Lyons v.

Iowa Bd. of Med., No. 08-1538, 2009 WL 1677149, at *2 (Iowa Ct. App. June 17,

6 In one section of his brief, Dr. Yates contends that the district court “completely
disregarded” two unpublished court of appeals decisions: Poole v. Board of
Medical Examiners, No. 99-0074, 2000 WL 193612 (Iowa Ct. App. Jan. 26, 2000),
and Strickler v. Iowa Board of Medical Examiners, No. 05-1721, 2006 WL 2265542
(Iowa Ct. App. Aug. 9, 2006). Because those cases are not binding precedent, the
district court did not need to cite them. See Iowa R. App. P. 6.904(2)(c); State v.
Lindsey, 881 N.W.2d 411, 415 n.1 (Iowa 2016) (noting “unpublished decisions of
the court of appeals do not constitute binding authority” but may help “define the
issues” before the district court). On their merits, we find Strickler more similar to
this case than Poole. Strickler, 2006 WL 2265542, at* 3 (holding Board properly
disciplined doctor for repeated acts of professional incompetency).
10

2009) (“While pieces of this evidence, taken out of context, might support different

findings, those pieces do not require reversal under the pertinent judicial review

standard.”). For instance, Dr. Yates argues that the Board had no basis to

conclude that he suffered from any mental disorder or cognitive impairment that

interfered with his ability to safely practice medicine. This argument appears to

focus on the emergency adjudicative order. And as the Board responds, the CPEP

evaluation identified several concerns that suggested that Dr. Yates’s clinical

judgment was inadequate and he did not understand his own limitations. Yet in

the end, the Board’s discussion of Dr. Yates’s cognitive abilities was not essential

to its ultimate finding that Dr. Yates’s cosmetic surgery practice was harmful or

detrimental to the public under the first alternative of rule 653-23.1(3) (“the failure

of a physician to possess and exercise that degree of skill, learning and care

expected of a reasonable, prudent physician acting in the same or similar

circumstances in this state”). We leave that finding undisturbed.

Next Dr. Yates complains that the Board’s peer reviewers, Dr. Mark Mulkey

and Dr. Thomas Lawrence, evaluated him under standards for plastic surgery

rather than cosmetic surgery. He contends that he should not be held to the

standard of board-certified plastic surgeons because he “has never claimed to be

one.” He emphasizes that, unlike plastic surgeons, cosmetic surgeons have

neither residency training nor board certification. With no specificity, he invites us

to “see the record that outlines all of the courses and seminars” that he has

attended to become competent in cosmetic surgery. On top of the training issue,

Dr. Yates insists Dr. Mulkey and Dr. Lawrence “have significant conflicts of
11

interests” that should have precluded their participation in the administrative

process.

It is hard to assess Dr. Yates’s claims about the peer review process. He

does not point us to where in the record that he objected to the Board’s reliance

on the opinions of Dr. Mulkey and Dr. Lawrence. Rather, he casts vague

aspersions about their qualifications and objectivity. And he tucks his complaints

about the peer reviewers under his substantial-evidence argument. Under that

overarching challenge to the board’s conclusions, we find more than adequate

support for the Board’s findings in the hearing record. Both Dr. Lawrence and

Dr. Mulkey testified that they had done the kind of cosmetic procedures at issue.

Given their practice experience, the Board properly relied on their peer review

report. Their report did not focus on Dr. Yates’s lack of training in plastic surgery,

but on his failure to meet the standard of care for certain procedures. The Board

could accept the peer reviewers’ opinions, even against countervailing views from

Dr. Yates and his witnesses. “Where evidence is in conflict or reasonable minds

might disagree about the conclusions to be drawn, the court is bound to accept the

agency’s findings.” Eaves, 467 N.W.2d at 237.

In a final critique of the agency’s action, Dr. Yates claims none of his

patients suffered serious complications. He contends “poor patient selection”

should not be a basis to impose penalties because professional judgment can

“vary widely among practitioners.” And in response to the unorthodox step of

taking patient A.L. to his residence, he ventures: “[W]hile it is not a common

practice to bring a patient back to your home for observation, it is not unheard of
12

nor a violation per se. If anything, this was an attempt by [Dr. Yates] to ensure the

well-being of his patient.”

We find these points unconvincing. “The Board is not limited to disciplining

licensees for conduct that is actually detrimental to the public but is allowed to

discipline licensees for conduct potentially detrimental to the public.” Rabi v. Iowa

Bd. of Med., No. 16-1730, 2017 WL 4315056, at *2 (Iowa Ct. App. Sept. 27, 2017).

The evidence before the Board detailing eleven problematic cases backed its

findings that Dr. Yates engaged in practices that threatened the safety of his

patients and endangered the public.

2. Unethical or Unprofessional Conduct

As its third count, the Board sanctioned Dr. Yates for unethical and

unprofessional conduct under Iowa Code sections 147.55(3), 148.6(2)(f) and

272C.10(3) and Iowa Administrative Code rule 653-23.1(4). It found that his

treatment of patient A.L. fell below a minimal standard of acceptable and prevailing

practice. The Board noted that Dr. Yates performed her “surgical procedure

without appropriate cardiac monitoring, during which she suffered a period of

hypotension.” The Board also criticized the decisions that Dr. Yates made after

A.L.’s procedure:

[Dr. Yates] acted unethically and unprofessionally when he failed to
transport A.L. to the local emergency room for appropriate treatment
and monitoring for her condition. More importantly, the Board
determined that [his] act of transporting A.L. to his personal home
instead of the hospital for further observation to be an extreme
departure from the minimal standard of acceptable and prevailing
practice of medicine and surgery.

Dr. Yates insists nothing in the record shows that he “acted with any malintent

towards A.L.” But the Board did not have to find malintent. Just a willful departure
13

from acceptable medical practice. See Iowa Code § 148.6(2)(f). We find

substantial evidence to support the Board’s finding.

3. Inappropriate Prescribing

Under Iowa Code section 148.6(2)(h), a doctor may be disciplined for

willfully violating a rule adopted by the Board. Under Iowa Administrative Code

rule 653-23.1(7)(b), doctors may not prescribe or dispense controlled substances

to members of their immediate family, including spouses, if the prescription is not

for “an acute condition or on an emergency basis.” The Board decided that

Dr. Yates violated that rule by dispensing alprazolam, morphine, and midazolam

to his wife, M.Y., while performing a cosmetic procedure.

To counter that charge, Dr. Yates contends that he dispensed controlled

substances to his wife during a “one-time procedure” which “perfectly matches” the

rule’s exception for an “acute condition.” He cites a dictionary definition of “acute”

as “lasting a short time” or providing “short-term medical care.” The Board disputes

the doctor’s interpretation, contending “an acute condition” cannot be created by

“an elective cosmetic surgery in non-emergent circumstances.” The Board

suggests a more technical definition of acute as being “medically unstable.” Cf.

Iowa Admin. Code r. 191-39.5(5) (discussing long-term care insurance).

In settling their interpretative debate, we start from the paradigm that an

agency is entitled to substantial deference when interpreting its own rules. 7 See

TLC Home Health Care, L.L.C. v. Iowa Dep’t of Hum. Servs., 638 N.W.2d 708, 711

7 The legislature authorized the Board to “adopt all necessary and proper rules to
administer and interpret” chapter 148 governing the practice of medicine in Iowa.
Iowa Code § 147.76.
14

(Iowa 2002). That deference is especially apt for “regulations entrusted to

agencies responsible for licensing professionals.” Al-Khattat v. Eng’g & Land Surv.

Examining Bd., 644 N.W.2d 18, 23 (Iowa 2002).

Having reviewed rule 653-23.1(7)(b) and its prohibition on dispensing

controlled substances to immediate family members except in emergencies or for

acute conditions, we cannot find that the Board’s interpretation was “irrational,

illogical, or wholly unjustifiable.” See Iowa Code § 17A.19(10)(l). The Board was

justified in determining that dispensing controlled substances to a spouse as part

of an elective cosmetic procedure did not fall into the exception for “an acute

condition” under the rule. It makes sense for medical professionals to view “an

acute condition” as akin to “an emergency basis,” the other exception listed in

rule 23.1(7)(b)(1). As they say, “words of a feather flock together.” State v. Ross,

941 N.W.2d 341, 348 (Iowa 2020) (citation omitted) (discussing associated-words

interpretive canon). Under the Board’s logic, to be an exception to the general

prohibition against prescribing controlled substances to a close relative, the

patient’s condition must be unexpected and reaching a crisis level.8 That logic

tracks the American Medical Association Code of Ethics, which states that

physicians generally should not treat members of their immediate family and

should not write prescriptions for controlled substances for family members except

in emergencies. See Am. Med. Ass’n J. of Ethics, Opinion 8.19 (May 2012). That

ethics code serves as a guiding principle for the Board. Iowa Admin. Code r. 653-

8 A leading medical dictionary defines “acute” as “having rapid onset, severe
symptoms, and a short course, not chronic.” Taber’s Cyclopedic Medical
Dictionary (18th ed.1997) at 34.
15

13.20. We discern no flaw in the Board’s interpretation of the term “acute” in the

rule, leading to its finding of inappropriate prescribing.

B. Unpreserved Claims

In his remaining brief points, Dr. Yates argues that the district court “failed

to evaluate” three claims: (1) he was deprived of a fair trial because of prosecutorial

misconduct; (2) Board members and the Board’s counsel had conflicts of interest

and were biased against him; and (3) he was denied due process when the Board

refused to strike testimony from Dr. Arik Eckhart from the record.

None of these claims are properly preserved for appeal. First on the claim

of prosecutorial misconduct, Dr. Yates contends that an assistant attorney general

representing the Board committed “theft” by leaving a deposition without returning

binders of documents provided to the court reporter and parties. The Board’s

attorney later complied with the ALJ’s directive to return the binders. The district

court decided this issue was waived because Dr. Yates raised it for the first time

on judicial review. The court also noted that Dr. Yates raised no ground under

Iowa Code section 17A.19 for the court to consider reversible error on this claim

of misconduct. We agree with the district court on both waiver grounds. Raising

an issue for the first time in a petition for judicial review does not preserve error.

Chauffeurs, Teamsters & Helpers, Loc. Union No. 238 v. Iowa C.R. Comm’n, 394

N.W.2d 375, 382 (Iowa 1986). In the appeal to our court, Dr. Yates cites three

criminal cases on prosecutorial misconduct. Those cases do not help his cause.

He does not state how he preserved error on his claim. We thus decline to address

the merits.
16

Second, Dr. Yates argues that members of the Board and its counsel had

conflicts of interest and prejudices against him. The district court held that

Dr. Yates’s unsuccessful objection to the participation of one Board member at the

start of the agency hearing did not preserve error for the bias and conflicts of

interest alleged in judicial review. The court relied on precedent stating, “any

challenge grounded in agency bias must be presented by written affidavit; an oral

objection like the one made here is statutorily insufficient.” See Kholeif v. Bd. of

Med. Exam’rs, 497 N.W.2d 804, 807 (Iowa 1993) (analyzing what is now Iowa

Code section 17A.17(7)); Collison v. Iowa Bd. of Med., No. 13-0477, 2014WL

69535, at *5 (Iowa Ct. App. Jan. 9, 2014) (holding failure to file affidavit with Board

precludes review of agency bias on appeal). In his appeal to our court, Dr. Yates

does not try to distinguish Kholeif and Collison. He also does not argue how an

objection to one Board member preserved his other appellate claims of bias. In

fact, he includes no statement on error preservation. We thus decline to reach the

merits.

Third, Dr. Yates argues that he was denied due process because the Board

refused to exclude the testimony of complaining physician Eckhart after he failed

to appear for his deposition. The district court decided that the due process

challenge was waived because it was raised for the first time on judicial review.

We agree with that decision. Even constitutional issues must be raised at the

Board level to be considered on appeal. Chicago & N.W. Transp. Co. v. Iowa

Transp. Reg. Bd., 322 N.W.2d 273, 276 (Iowa 1982). What’s more, Dr. Yates

makes no preservation argument in his appellate brief. So we do not address the

merits of his due process claim.
17

V. Conclusion

To recap, we find substantial evidence to support the Board’s sanctions on

all contested grounds. In doing so, we conclude the Board properly interpreted the

term “acute” in its administrative rule. We decline to reach the merits of Dr. Yates’s

ancillary issues because they were not preserved for our review.

AFFIRMED.