In the Matter of the Medical License of Christopher John Kovanda, M.D. License No. 41657.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1259

In the Matter of the Medical License of
Christopher John Kovanda, M.D.
License No. 41657.

Filed May 22, 2023
Affirmed
Hooten, Judge*

Minnesota Board of Medical Practice

John M. Degnan, Brayanna J. Bergstrom, Taft Stettinius & Hollister LLP, Minneapolis,
Minnesota; and

Nicole L. Brand, Besse H. McDonald, Meagher + Geer, P.L.L.P, Minneapolis, Minnesota
(for relator Christopher Kovanda)

Keith Ellison, Attorney General, Daniel S. Schueppert, Rebecca H uting, Assistant
Attorneys General, St. Paul, Minnesota (for respondent Minnesota Board of Medical
Practice)

Considered and decided by Wheelock, Presiding Judge; Bryan, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
Relator Dr. Christopher Kovanda appeals by writ of certiorari the order of the
Minnesota Board of Medical Practice (the board) revoking his license to practice medicine

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
in the state of Minnesota. Because we defer to the board’s credibility determinations, we
conclude that there was substantial evidence to support the board’s conclusion that
Dr. Kovanda engaged in prohibited sexual conduct against two of his patients. We
therefore affirm.
FACTS
Dr. Christopher Kovanda, a board-certified plastic surgeon, has been licensed to
practice medicine in Minnesota since July 1999. 1 Dr. Kovanda has been self-employed at
Kovanda Aesthetic Plastic Surgery since 2015. In February 2021, the Minnesota Medical
Board’s disciplinary committee filed a notice and order for hearing, 2 alleging that
Dr. Kovanda engaged in sexual misconduct with respect to four patients between 2010 and
2019. Only two patients, patient #2 and patient #3, are relevant to this appeal.
The committee and Dr. Kovanda participated in a hearing in front of an
administrative law judge (ALJ). At the hearing, the ALJ heard testimony from eleven
witnesses, including patient #2, patient #3, patient #3’s husband, members of

1 From 2011 to 2014, Kovanda maintained a conditional medical license. The board
imposed conditions on Kovanda’s license after Kovanda entered into a S tipulation and
Order with the board based on his use of suggestive language toward and touching of one
patient in 2009 and his having sexual intercourse with another patient after a post-operative
visit. The conditions required “(a) a female chaperone to be present when [Kovanda]
treated any female patients, (b) coursework in professional boundaries, (c) practice in a
preapproved setting, (d) a supervising physician, (e) quarterly meetings with a designated
board member, and (f) payment of a civil penalty.” These conditions lapsed in 2014 when
Kovanda received an unconditional license from the board.
2 The board filed one notice and three amended notices. The above-referenced notice is the
third amended notice. In the four notices, the board alleged that Kovanda committed
misconduct with respect to four patients. The hearing addressed all four allegations, but the
board only found that there was substantial evidence of Kovanda’s misconduct with respect
to patients #2 and #3.
3
Dr. Kovanda’s staff, two expert witnesses, and Dr. Kovanda. The ALJ also received
evidence that included a transcript of a recorded interview of patient #2’s friend and a
transcript of a recorded phone call between Dr. Kovanda and patient #2.
Patient #3 testified first, recounting that in the summer of 2010 , she requested that
Dr. Kovanda perform carpal tunnel surgery on both of her wrists, a tummy tuck, and a
breast reduction. Patient #3 stated that Dr. Kovanda first performed surgery on her left
wrist and that nothing unusual occurred during the appointments related to the first surgery.
She related that at the consultation for the remaining procedures, she was sitting on the
examination table when Dr. Kovanda walked quickly toward her, lunged, and grabbed both
of her breasts. As he grabbed her breasts, Dr. Kovanda straddled her right knee, putting his
testicles on it for approximately five seconds before she moved away in shock. He then
continued with a breast examination as normal. Patient #3 testified that although she did
not tell anyone at the office, she did tell her husband about the incident when she returned
home. Despite her discomfort with Dr. Kovanda, patient #3 chose not to “cancel everything
and start all over” and instead proceeded with the remaining procedures. Patient #3’s
husband’s testimony relaying his wife’s version of the incident at the time it occurred was
consistent with her testimony at the hearing.
Patient #2 also testified at the hearing, relating that she first set up a breast-
augmentation consultation appointment with Dr. Kovanda in the summer of 2019. She
testified that during her consultation, Dr. Kovanda appeared to caress her leg, and after she
undressed and moved in front of a mirror, Dr. Kovanda stood behind her closely with his
hands resting on her hips. She found the behavior strange, and she called her friend to
4
discuss it. After arriving at the center on the day of surgery and while sitting alone in the
pre-operation room, she began to hyperventilate but remained conscious. The nurses
calmed her down and got her into a comfortable resting position. Then, when the nurse
looked away, Dr. Kovanda pressed his erect penis into patient #2’s fee t and rubbed it
against them. T hen Dr. Kovanda asked the nurse to leave. He approached patient #2,
pushed her legs apart, grabbed her backside, and pulled her into him. She testified that she
could feel his penis beneath his scrubs pressed against her vagina. Patient #2 and a private
investigator later called Dr. Kovanda and recorded the telephone conversation. During the
conversation, Dr. Kovanda initially denied the allegations, but later stating “sorry. . . for
you feeling my penis pushed against you.”
Dr. Kovanda testified, denying the allegations by both patients. But he conceded
that there were brief periods where he was alone with patient #2 without nurses or staff
present. His staff testified, however, stating that they saw nothing supporting patient #2’s
allegations. Dr. Kovanda offered no evidence contradicting patient #3’s testimony that she
was alone with him in the examination room at the time of the alleged misconduct.
The ALJ, based on the testimony, concluded that Dr. Kovanda violated Minn. Stat.
§ 147.091, subd. 1(t) (2022), with respect to patients #2 and #3, and subd. 1(g) (2022) with
respect to patient #2. The ALJ recommended disciplinary action. The board adopted all of
the findings of the ALJ and revoked Dr. Kovanda’s medical license. Dr. Kovanda appeals.
DECISION
On appeal Dr. Kovanda challenges the board’s decision to revoke his license based
on his alleged violations of Minn. Stat. § 147.091, subd. 1(g), (t). Under these subdivisions,
5
the medical board may impose disciplinary action if a doctor engages in “any unethical or
improper conduct” or engages in “conduct with a patient which is sexual or may reasonably
be interpreted by the patient as sexual, or in any verbal behavior which is seductive or
sexually demeaning to a patient.” Minn. Stat. § 147.091, subd. 1(g), (t).
An administrative agency’s decision enjoys a presumption of correctness, In re
Revocation of Family Child Care License of Burke, 666 N.W.2d 724, 726 (Minn. App.
2003), and we will only reverse an agency’s determination where the de termination
violates the constitution, exceeds the agency’s authority or jurisdiction, is made under an
unlawful procedure or other error of law, is not supported by substantial evidence, or is
arbitrary and capricious, Minn. Stat. § 14.69 (2022). “With respect to factual findings made
by the agency in its judicial capacity, if the record contains substantial evidence supporting
a factual finding, the agency’s decision must be affirmed.” In re Excelsior Energy, Inc.,
782 N.W.2d 282, 290 (Minn. App. 2010) (quotation omitted). The party challenging an
agency decision bears the burden of establishing that the agency findings are not supported
by substantial record evidence. In re Rev. of 2005 Ann. Automatic Adjustment of Charges,
768 N.W.2d 112, 118 (Minn. 2009). Substantial evidence is “defined as: (1) such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more
than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or
(5) the evidence considered in its entirety.” Cannon v. Minneapolis Police Dep’ t, 783
N.W.2d 182, 189 (Minn. App. 2010) (q uotation omitted). Because the board adopted the
ALJ’s findings, Dr. Kovanda challenges the ALJ’s factual determinations underpinning the
board’s decision.
6
Dr. Kovanda argues that there is not substantial evidence supporting the ALJ’s
misconduct findings because the findings rest on the testimony of patients #2 and #3 whose
testimony, Dr. Kovanda asserts, was not credible. In so arguing, he relies principally on
the supreme court’s decision in In re Wang, 441 N.W.2d 488 (Minn. 1989). In Wang, the
supreme court reviewed the dental board’s decision to revoke a dentist’s license in part
based on his alleged sexual conduct toward three patients. Id. at 490. The Wang court
reversed the board ’s decision and concluded that the decision was not supported by
substantial evidence because the ALJ relied only on the testimony of the three complaining
witnesses whose testimony was contradicted by other eyewitnesses. Id. at 493-94.
But Dr. Kovanda’s case is distinguishable from Wang in three material ways. First,
in Wang, the dentist’s employees all testified that they were present when the alleged
instances of misconduct occurred and that the misconduct did not occur. Id. at 493. The
same cannot be said in this case. Here, Dr. Kovanda offered no evidence to rebut patient
#3’s assertion that at the time the misconduct occurred, she was alone in the room with
him. And with respect to patient #2, Dr. Kovanda conceded that there were brief periods
of time where he was alone with her.
Second, the Wang court relied heavily on the “disquieting evidence” that suggested
the complaining patients misconstrued “Dr. Wang’s attempts to put their apprehensions at
ease.” Id. The court noted that Dr. Wang, who was raised and educated in China, spoke
“less-than-perfect English” and had a “less-than-perfect understanding of American culture
and mores.” Id. There is nothing in the record to suggest to us that the same unawareness
of cultural mores can be said of Dr. Kovanda, who has practiced in Minnesota since 1999
7
and who—after a prior disciplinary action based on similar accusations— completed
coursework on maintaining professional boundaries with patients.
Third, and most importantly, unlike in Wang, the ALJ here relied on more than just
the complaining patients’ testimonies. The board presented evidence of the patients’
independent, contemporaneous reporting of the alleged misconduct to their loved ones.
With respect to patient #2, the ALJ relied on the fact that patient #2’s testimony about the
assault was corroborated by her friend, who patient #2 called hours after her surgery. The
ALJ noted that the friend reported to the investigator that during that phone call, patient #2
told her that:
[W]hen he went to put the markings on her, she said that he
climbed on top of her and rubbed his d-ck on her. And she said
he had a boner and she pushed him off and said, “What are you
doing?” And then he acted like nothing happened. And so she
was super shocked by that, and that was right before she went
under, was about to go in.
The ALJ also heard corroborating testimony from patient #3’s husband, a retired
police detective. The husband recounted t hat after his wife came home from her
appointment, he spoke with her in the kitchen. He testified that when the two spoke in the
kitchen, his wife told him that:
[W]hen she was at the checkup she was getting her—I believe
she was just in her panties and sitting on the examining table
and Mr. Kovanda came up and examined her breasts and then
moved closer in and straddled her knee and proceeded to set
his crotch down on either her knee or the top of her thigh.
The ALJ relied on the husband’s testimony, finding him to be a credible witness who
testified in a sincere and forthright manner.
8
Dr. Kovanda’s argument that patients #2 and #3 were not credible does not compel
a different result. The ALJ concluded that the patients were credible, and “a court cannot
substitute its judgment for a board’s on the credibility of witnesses.” Padilla v. Minnesota
State Bd. of Medical Examiners, 382 N.W.2d 876, 886 (Minn. App. 1986), rev. denied
(Minn. Apr. 24, 1986). We decline to do so here, especially given that the ALJ’s credibility
determinations are amply supported by the record.
Dr. Kovanda maintains that patient #2’s “pattern of lying” warrants our reversing
the board’s decision. He cites as examples patient #2’s omitting her mental health history
from her intake form at Dr. Kovanda’s office and telling her therapist nine days after her
surgery that she was pleased at the “successful” outcome of her surgery and not mentioning
the alleged incident. Based on these facts, Dr. Kovanda relatedly contends that patient #2
lied under oath, either at her deposition (when she said she stated that she “never lied” to
her therapist) or at the hearing (when she testified that she had lied to her therapist about
her initial thoughts on the procedure).
We defer to the ALJ’s credibility determinations. “As the sole judge of credibility,
a fact-finder is free to accept part and reject part of a witness’s testimony.” State v. Kramer,
668 N.W.2d 32, 38 (Minn. App. 2003), rev. denied (Minn. Nov. 18, 2003). See also In re
Thompson, 935 N.W.2d 147, 156 (Minn. App. 2019) (“It is well-established that appellate
courts generally defer to credibility determinations made by an agency’s fact-finder.”). The
ALJ was free to reject patient #2’s statements that she never lied to her therapist while
accepting her testimony at trial regarding the sexual misconduct as true. The ALJ explained
that during her testimony, patient #2 “appeared to be sincere and very upset by what she
9
testified had happened,” and determined that she was credible. Even if the record provided
us reasons to doubt the ALJ’s credibility determination, as we stated previously, the ALJ
did not only rely on patient #2’s testimony at trial, but he also relied on the deposition
testimony by patient #2’s friend corroborating patient #2’s account of the misconduct at
the time it occurred.
Dr. Kovanda contends that patient #3 was also not a credible witness, citing as proof
her inability to recall exactly which preoperative visit the misconduct occurred at, her
delayed reporting, her continuing to receive surgery from Dr. Kovanda after the alleged
misconduct occurred, and her allowing Dr. Kovanda to use her before-and-after pictures in
his advertisements. Again, this could have led to a different credibility determination by
the ALJ. But like patient #2, patient #3’s testimony was corroborated by her
contemporaneous reporting. And the ALJ found the corroborating witness, patient #3’s
husband, to also be credible.
We note for the sake of completeness that after hearing conflicting testimony from
Dr. Kovanda and the patients, the ALJ had substantial reasons to conclude that it was
Dr. Kovanda’s testimony that lacked credibility. With respect to patient #2, although
Dr. Kovanda denied the allegations against him, those denials were inconsistent with his
statements to patient #2 during a recorded telephone call that were submitted as evidence.
During that conversation, Dr. Kovanda told patient #2 that he was “sorry. . . for you feeling
my penis pushed against you” and he acknowledged that there was no explanation for his
behavior. In making its credibility determination, the ALJ relied on this recorded apology.
The ALJ also weighed the testimony of patient #3 and her husband against Dr. Kovanda’s
10
and concluded that “[p]atient #3 and her husband had little to gain by their testimony and
[Dr. Kovanda] had much to lose if he admitted that [p]atient #3’s allegation was true.” We
see no error in this characterization.
We conclude that Dr. Kovanda has failed to satisfy his burden to establish that the
ALJ’s findings, and the board’s revocation of his license based on its adoption of those
findings, were not supported by substantial evidence.
Affirmed.