94-1033 La.App. 4 Cir. 11/30/94, Reynolds v. Louisiana State Bd. of Medical Examiners

• Decision Date: 30 November 1994
• Citation: 646 So.2d 1244
• Parties: 94-1033 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1244

646 So.2d 1244

94-1033 La.App. 4 Cir. 11/30/94

Wallace G. REYNOLDS, M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.

No. 94-CA-1033.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 30, 1994.

Rehearing Denied Jan. 18, 1995.

Writ Denied March 30, 1995.

Donna G. Klein, McGlinchey, Stafford, Lang, New Orleans, Eugene P. Cicardo, Cicardo Law Offices, Alexandria, for plaintiff/appellant.

L. Thomas Styron, Adams & Reese, New Orleans, for defendant/appellee.

Before CIACCIO, LOBRANO and PLOTKIN, JJ.

[94-1033 La.App. 4 Cir. 1] LOBRANO, Judge.

Dr. Reynolds appeals the trial court's affirmation of the administrative findings of the Louisiana State Board of Medical Examiners (Board) which suspended his license to practice for a limited time period and imposed other sanctions. ¹

On April 24, 1992, after an administrative hearing, the Board found Dr. Reynolds guilty of treating eleven patients with controlled substances, which, in quantity and duration exceeded any legitimate medical justification. ² In detailed findings of fact and conclusions of law the Board meticulously presented the specifics of each of the eleven patients treated by Dr. Reynolds and concluded as follows:

"[W]e note that in every case presented, the overall dosages of the major preparations prescribed exceed recommended levels in quantity, duration, or both. It is also apparent that, in almost every case, Dr. Reynolds knew, or had reason to know, that the patient had a history of drug abuse in one form or another, and was aware that he was prescribing drugs in excess of the standard practice of the community."

Dr. Reynolds sought review in the district court. He also filed a rule in that court seeking the introduction of de novo evidence to supplement the administrative record. The court denied that request and affirmed the Board's findings based on its review of the administrative record.

[94-1033 La.App. 4 Cir. 2] Dr. Reynolds perfects this appeal presenting four due process arguments, as well as a sufficiency of evidence argument. Based on the following review and discussion of each argument, we affirm the trial court.

DUE PROCESS:

First, Dr. Reynolds asserts that his due process rights were violated because certain evidence against him was presented to the Board, outside of his presence, while the Board was considering a consent proposal he submitted. This "ex parte" consideration by the Board, he asserts, tainted its decision making process at the formal administrative hearing. We disagree.

Dr. Reynolds submitted to the Board two proposed "Consent Orders" dated May 23, 1991 and July 19, 1991 in an attempt to resolve the matter without a formal hearing. Both of those documents contain the following acknowledgement by Dr. Reynolds:

"By his subscription hereto, Dr. Reynolds also hereby authorizes the Investigating Officer designated by the Board with respect hereto, personally and/or through legal counsel to present this Consent Order to the Board for its consideration and to fully disclose to and discuss with the Board the nature and results of the investigation."

In addition, the transmittal correspondence by the Board's attorney to Dr. Reynolds' attorney referencing the proposed Consent Order also advises that "Dr. Reynolds' signature on the Consent Order will operate as his consent to have [the investigating officer or the Board's attorney] present the facts of the case" to the Board.

Quite simply, Dr. Reynolds attempted to settle the complaint against him and the Board refused. In the process, Dr. Reynolds gave his consent to the Board's review and consideration of the investigative facts of his case. That consent constitutes a waiver of any due process rights. We find no due process violation in this procedure. To the contrary, it would be a dereliction of the Board's duty not to consider the pros and cons of the case before entering into a consent decree. Dr. Reynolds has no constitutional right to be present during the Board's deliberations about the propriety and sufficiency of the settlement offer.

[94-1033 La.App. 4 Cir. 3] Second, Dr. Reynolds argues that the District Court deprived him of his fundamental right to a de novo trial and his right to present additional evidence. In support, he cites numerous cases, including our decision in Cefalu v. Board of Medical Examiners, 618 So.2d 471 (La.App. 4th Cir.1993), writ denied, 623 So.2d 1307. We initially note that Cefalu does not support his position. That case involved a de novo hearing before the Board on the defendant's motion to recuse certain Board members. After being unsuccessful at that level, the defendant went to the District Court in his continuing attempt to have certain members recused. At the District level, there was no additional evidence offered, only a review of the evidence submitted at the administrative level.

De novo evidence at the district court level is not entirely prohibited, however. In certain limited instances additional evidence may be received. Those instances are confined to the situations where there are alleged procedural irregularities before the board and which irregularities are not already shown in the administrative record. La.R.S. 49:964(F). In Dr. Reynolds' case, the trial court properly ruled that additional evidence was not necessary to consider his claims of irregularity. Those claims are Dr. Reynolds' other two due process arguments, which we continue to address.

Third, Dr. Reynolds argues that the entire proceedings against him were improperly initiated by Dr. Kaplan, a Board member and thus the subsequent proceedings were illegal as "fruit of the poisonous tree." His complaint is that Dr. Kaplan obtained a computer printout from a pharmacy which showed an inordinate number of prescriptions for controlled drugs written to a suspected drug abuser. This information was subsequently turned over to the State Police, and eventually led to the Board's investigation of Dr. Reynolds.

Initially we observe that Dr. Kaplan was recused from participating in this matter from the outset. He is from the same community as Dr. Reynolds. In his deposition Dr. Kaplan did not recall obtaining a computer print out. However, whether he did or did not is of no relevance to the subsequent investigation by the Board. Dr. Reynolds has failed to show how the initial inquiries, whether instigated by Dr. Kaplan or the State Police, deprived him of a fair hearing.

[94-1033 La.App. 4 Cir. 4] Dr. Reynolds cites La.R.S. 37:1278.1 which authorizes the board to subpoena a physician's records despite the patient-doctor privilege of confidentiality. Somehow, he urges that this statute was violated by Dr. Kaplan, and thus caused the entire proceedings against him to be tainted. Assuming Dr. Kaplan did obtain the records of the pharmacy, those are not covered by the cited statute, which covers only a physician's records. More important, however, is the fact that plaintiff has failed to demonstrate how he was prejudiced and/or did not receive a fair hearing. His suggestion that the subsequent proceedings are "fruit of the poisonous tree" and should be quashed simply has no basis in law with respect to these administrative proceedings.

The last due process argument Dr. Reynolds urges is the Board's denial of his request to cross-examine them. Dr. Reynolds argues that because the Board members used their own expertise and training in deciding the complaint against him, he should have been allowed to interrogate them. In support he cites Allen v. Louisiana State Board of Dentistry, 543 So.2d 908 (La.1989)....