Appeal of Dell

• Decision Date: 06 December 1995
• Docket Number: No. 94-219,94-219
• Citation: 668 A.2d 1024,140 N.H. 484
• Parties: Appeal of Stephen O. DELL, M.D. (New Hampshire Board of Registration in Medicine).
• Court: New Hampshire Supreme Court

Page 1024

668 A.2d 1024

140 N.H. 484

Appeal of Stephen O. DELL, M.D. (New Hampshire Board of Registration in Medicine).

No. 94-219.

Supreme Court of New Hampshire.

Dec. 6, 1995.

Board of Registration in Medicine.

Wiggin & Nourie, P.A., Manchester (W. Wright Danenbarger etc. on the brief, and Mr. Danenbarger orally), for petitioner.

Jeffrey R. Howard, Attorney General (Monica A. Ciolfi, Senior Assistant Attorney General, on the brief, and Douglas N. Jones, Assistant Attorney General, orally), for State.

BATCHELDER, Justice.

The petitioner, Stephen O. Dell, M.D., appeals from a decision of the New Hampshire Board of Registration in Medicine (board) denying his application for medical relicensure. Although the petitioner presents numerous questions for review, we will address only his arguments that the board: (1) breached the terms of a prior consent order concerning his relicensure; (2) erred in requiring him to seek reinstatement, rather than renewal, of his license; (3) denied him due process under the State and Federal Constitutions by depriving him of the right to a fair and impartial hearing, and relying, in part, on stale claims; and (4) erred in that its decision is not supported by the evidence and is therefore unjust and unreasonable. We affirm. The petitioner's remaining arguments are without merit and do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).

The petitioner is a neurosurgeon who was first licensed to practice medicine in New Hampshire in 1982. In August 1989, disciplinary proceedings were instituted after the board learned that the petitioner had lost his medical staff privileges at three New Hampshire hospitals. Specifications were filed by the prosecutor for the board which, as amended, charged that the petitioner engaged in negligent and incompetent conduct relative to the medical care and treatment of certain patients and made false representations on his medical license application, on applications for staff membership and privileges at certain hospitals, to patients, in medical records, and to the public. See RSA 329:17, VI(a), (c), (d), (g) (1984) (amended 1992, 1993). When the evidentiary hearing commenced in March 1990, the prosecutor withdrew the charges of medical negligence and incompetence because they could not be proved. The hearing was adjourned shortly thereafter.

In June 1990, the petitioner and the board entered into a consent order. The petitioner admitted to certain violations of RSA 329:17, VI(d) and (g) involving dishonesty and was reprimanded and ordered to fulfill certain requirements not here relevant "before renewing his New Hampshire license." The consent order, however, effectively precluded the petitioner from renewing his license before the licensing year ended on June 30, 1990. It also provided that all other charges were to be marked nolle prosequi.

In July 1990, believing he had fulfilled his obligations under the consent order, the petitioner sought renewal of his license. His request was denied because the medical ethics course he proposed to take to satisfy one of the terms of the consent order had not been approved by the board. In July 1991, after completing an approved ethics course, the petitioner was informed by the board that he needed to file an application for license reinstatement rather than renewal. The petitioner filed the reinstatement application and, at the board's request, furnished certain additional information. His application was considered complete in November 1991.

The following January, the board issued a show cause order which, as amended several months later, indicated that there was probable cause to believe the petitioner was not qualified for licensure. The petitioner requested a hearing and sought the recusal of all board members based upon their alleged bias against him. The board denied the motion for recusal but appointed a retired superior court judge to serve as hearing officer. A three-day evidentiary hearing was held in February 1993, which the board members did not attend. In July, the hearing officer rendered an advisory decision recommending that the petitioner's application be granted.

In January 1994, after memoranda and exceptions to the hearing officer's decision were filed by the parties, the board issued its final decision denying the petitioner's application for reinstatement, finding that he lacked the professional character and medical competence required of a physician to qualify for licensure in New Hampshire. The petitioner filed a timely motion for rehearing, which was denied. This appeal followed.

I. Standard of Review

The parties disagree over the standard of review we should apply. The petitioner argues that this case was decided under RSA 329:17, which authorizes appellate review of disciplinary action taken by the board under RSA chapter 541. RSA 329:17, VIII (1995). The State argues this matter is a reinstatement proceeding governed by RSA 329:16-e (1984) (amended 1991), and because no authorization to appeal under RSA chapter 541 is provided, this court's jurisdiction may be invoked only by a petition for writ of certiorari. Petition of Donovan, 137 N.H. 78, 80, 623 A.2d 1322, 1324 (1993).

Our standard of review for administrative appeals and for petitions for writs of certiorari "differs only slightly." Id. We will not "overturn agency decisions or orders, absent an error of law, 'unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.' " Appeal of Stetson, 138 N.H. 293, 295, 639 A.2d 245, 247 (1994) (quoting RSA 541:13). Certiorari review, on the other hand, is limited to whether the agency "acted illegally with respect to jurisdiction, authority or observance of the law, whereby [it] arrived at a conclusion which could not legally or reasonably be made, or ... abused [its] discretion or acted arbitrarily, unreasonably, or capriciously." Petition of Croteau, 139 N.H. 534, 536, 658 A.2d 1199, 1201 (1995) (quotations omitted). We need not decide which standard applies because under either the petitioner's claims fail. For purposes of this case only, we will apply the RSA chapter 541 standard.

II. Breach of Contract

The petitioner argues the board breached the terms of the consent order by refusing to relicense him to practice medicine in accordance with RSA 329:16-a (1995). The parties entered into the consent order pursuant to RSA 329:17, X (Supp.1991) (repealed 1992) which, in June 1990, authorized the board to dispose of any disciplinary matter "by stipulation, agreed settlement, consent order or default." At issue here is the language in the order which provided that "before renewing his New Hampshire license" the petitioner had to satisfy certain obligations. The petitioner argues that the term "renew" should be read as incorporating the license renewal procedure set forth in RSA 329:16-a.

We agree with the petitioner that the consent order is contractual in nature. The meaning of a contract is ultimately a matter for this court to decide. Butler v. Walker Power, 137 N.H. 432, 435, 629 A.2d 91, 93 (1993).

In reviewing a contract, we will give its language the interpretation that best reflects the parties' intentions. In interpreting a contract, we will consider the situation of the parties at the time of their agreement and the object that was intended thereby, together with all the provisions of their agreement taken as a whole.

Id. (citations and quotations omitted).

RSA 329:16-a establishes a simple procedure for the annual renewal of medical licenses that involves the submission of a form and the payment of a fee to the board. The only other item the board may require as a condition of renewal is evidence that the applicant actually practiced medicine within the State during the previous licensing year. The petitioner contends that because the term "renew" has a specialized meaning under RSA chapter 329, it should be interpreted in accordance with that meaning.

We disagree. Because RSA 329:16-a is not cited anywhere in the consent order and there is no other language which could reasonably lead us to conclude that the term "renew" was intended to refer to the particular statutory licensing procedure, we find that the parties intended to use the term in the more general sense of relicensure. In doing so, we give the term its common meaning, BankEast v. Michalenoick, 138 N.H. 367, 369, 639 A.2d 272, 273 (1994), which is simply "to restore to existence" or to "re-establish." Webster's Third New International Dictionary 1922 (unabridged ed. 1961). We therefore hold that, under the terms of the consent order, the petitioner was not entitled to renew his medical license pursuant to RSA 329:16-a.

We also reject the petitioner's argument that the board breached its implied contractual covenant of good faith and fair dealing by considering charges marked nolle prosequi. He contends that the effect of marking certain charges nolle prosequi was to preclude the board from considering them at a later date. The parties entered into the consent order pursuant to a disciplinary proceeding. Even if the board was barred from considering those charges with regard to future disciplinary action against the petitioner, a question not before us, there is nothing in the consent order preventing the board from considering them in deciding whether he should be relicensed.

III. Statutory Violations

The petitioner next argues that the board erred as a matter of law in requiring him to seek reinstatement pursuant to RSA 329:16-e, rather than renewal pursuant to RSA 329:16-a, of his medical license. The board took the position that because the petitioner's license had become suspended pursuant to RSA 329:16-e, it could not simply be renewed in accordance with RSA 329:16-a. Instead, the petitioner was required to comply with the more complicated procedure for license...