Appeal of Plantier

Decision Date23 May 1985
Docket NumberNo. 85-005,85-005
Citation126 N.H. 500,494 A.2d 270
Parties, 51 A.L.R.4th 1129 Appeal of Henry A. PLANTIER, M.D. (New Hampshire Board of Registration in Medicine).
CourtNew Hampshire Supreme Court

Stephen E. Merrill, Atty. Gen. (Douglas L. Patch, Asst. Atty. Gen., on the brief and orally), for the State.

McSwiney, Jones & Semple, Concord (Carroll F. Jones (orally) and Elaine L. Clark on the brief), for Henry A. Plantier.

Scotch & Zalinsky, Manchester (Barry M. Scotch on the brief and orally), for Parents for Doctor Plantier, as amicus curiae.


This appeal raises a variety of due process and procedural issues concerning the revocation of Dr. Henry A. Plantier's (the doctor) license to practice medicine in this State. We conclude that the New Hampshire Board of Registration in Medicine committed reversible error in considering a complaint over nine years old and in denying the appellant an open hearing. We therefore vacate and remand for a new hearing.

In the spring of 1984, the New Hampshire Board of Registration in Medicine (board) received two complaints against the doctor alleging incidents of sexual misconduct. One complainant, John X., alleged that improper sexual contact took place during the course of a physical examination in July 1975, when he was 17 years of age. The second complainant, Robert X., claimed that improper sexual contact took place during a physical examination in 1977, when he was 14 years of age, and again in February 1980, when he was 17 years of age.

After a hearing before the board, pursuant to RSA 329:17, the board concluded that Dr. Plantier had engaged in unprofessional and immoral conduct in violation of RSA 329:17, VI(d) and, on December 18, 1984, revoked his license to practice medicine. Dr. Plantier's motion for rehearing was denied, and this appeal followed.

We first address the doctor's argument that the board's consideration of John X's complaint alleging events taking place in excess of nine years prior to the board's hearing was a violation of due process, in that the nine-year delay prejudiced the doctor's ability to defend the accusation. The doctor argues that he is entitled to protection against stale complaints by the due process clause of the New Hampshire Constitution. N.H. CONST. pt. I, art. 15.

We begin our analysis by noting that RSA chapter 329 does not contain a limitation on the age of acts subject to disciplinary proceedings. Nor do the rules promulgated by the board pursuant to RSA 541-A:2, I (Supp.1983) provide for such a limitation. The board, pursuant to RSA 329:2, II(b), is required by law to undertake "disciplinary proceedings and disciplinary action against licensees, as authorized by RSA 329:17...." RSA 329:17 provides, in part, that "[t]he board may undertake disciplinary proceedings ... upon written complaint of any person which charges that a person licensed by the board has committed misconduct as set forth in paragraph VI of this section...." RSA 329:17, I(b). RSA 329:17, VI(d) provides, in turn, that "[t]he board, after hearing, may take disciplinary action against any person licensed by it upon finding that the person ... [h]as engaged in dishonest, unprofessional or immoral conduct or negligence in practicing medicine or surgery."

The doctor's due process argument is grounded upon the fact that he had approximately 100,000 patient visits between John's fifteen minute appointment in 1975 and his hearing before the board. Dr. Plantier asserts that such "delay prejudiced [his] ability to defend against the accusation in that neither [he] nor any member of his staff had any independent recollection of the complainant or his visit to the office ... [and] the testimony in [his] defense was therefore limited to office procedure and testimony from the medical records."

Where there are "no statutory time limitations applicable to particular administrative proceedings ... the question of whether or not there is a bar by time may turn on the question of laches." 2 Am.Jur.2d Administrative Law § 321 (1962). In Tighe v. Commonwealth State Board of Nurse Examiners, 40 Pa.Cmwlth. 367, 397 A.2d 1261 (1979), a Pennsylvania case in which a nurse lost her license for tampering with drugs, the commonwealth court stated:

"Assuming that laches may be asserted as a defense in an administrative disciplinary action involving a professional license (and there seems to be some support for this proposition in Pennsylvania State Board of Medical Education and Licensure v. Schireson, 360 Pa. 129, 61 A.2d 343 (1948), laches nevertheless cannot be imputed by the mere passage of time. It must be determined from all of the circumstances of the case, one of which must be the existence of harm occasioned by the delay. The appellant has failed to show how the delay in this case prejudiced her defense to the citation or how it otherwise harmed her."

Id., 397 A.2d at 1262.

" 'Laches, unlike limitation, is not a mere matter of time, but is principally a question of the inequity of permitting the claim to be enforced--an inequity founded on some change in the conditions or relations of the property or the parties involved.' " Wood v. General Elec. Co., 119 N.H. 285, 289, 402 A.2d 155, 157 (1979) (quoting 14 Am.Jur.2d Certiorari § 30, at 807 (1964)); Jenot v. White Mt. Acceptance Corp., 124 N.H. 701, 710, 474 A.2d 1382, 1387 (1984).

In determining whether to apply laches, " '[n]either law nor equity nor science has been able to develop any mechanical gauge that will automatically tell litigants or the court the number of months or years that are required to constitute reasonable promptness in bringing a suit to avoid the defense of laches.' " Jenot v. White Mt. Acceptance Corp., supra at 710, 474 A.2d at 1387 (quoting Valhouli v. Coulouras, 101 N.H. 320, 322, 142 A.2d 711, 712-13 (1958)). "The party asserting laches bears the burden of proving both that the delay was unreasonable and that prejudice resulted from the delay." Jenot v. White Mt. Acceptance Corp. supra.

Although the doctor has shown why a nine-year delay has affected his ability to defend himself, we must determine whether, in the absence of a statute of limitations, a laches-type doctrine applies to administrative actions as a requirement of procedural due process.

In determining whether challenged procedures satisfy the due process requirement of the State Constitution, this court employs a two-part analysis. "First, it must be determined whether the challenged procedures concern a legally protected interest. Second, it must be determined whether the procedures afford the appropriate procedural safeguards." Appeal of Portsmouth Trust Co., 120 N.H. 753, 756, 423 A.2d 603, 605 (1980) (citations omitted).

In addressing the first consideration, we must determine whether the interest at stake is a protected liberty or property interest. See Duffley v. N.H. Interschol. Ath. Assoc., Inc., 122 N.H. 484, 490, 446 A.2d 462, 466 (1982). In making such a determination, the touchstone of our analysis is not whether the governmental benefit conferred is characterized as a right or a privilege, but whether it is a protected property interest under part I, article 15. See Wheeler v. State, 115 N.H. 347, 351, 341 A.2d 777, 781 (1975), cert. denied, 423 U.S. 1075, 96 S.Ct. 860, 47 L.Ed.2d 86 (1976). We previously have recognized:

" 'The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except "for cause." Once that characteristic is found, the types of interests protected as "property" are varied and, as often as not, intangible, relating "to the whole domain of social and economic fact." ' "

Duffley v. N.H. Interschol. Ath. Assoc., Inc., supra, 122 N.H. at 491, 446 A.2d at 466 (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982) (citations omitted)). In that regard, "[t]he loss of a privilege once granted is clearly different from the denial of a privilege that has never been given." Stone v. Perrin, 118 N.H. 109, 111, 382 A.2d 1112, 1113 (1978); see Medina v. Rudman, 545 F.2d 244, 250 (1st Cir.1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (1977).

This court has held that the renewal of a license to sell insurance may not be denied without affording due process. Union Fidelity Life Ins. Co. v. Whaland, 114 N.H. 832, 834, 330 A.2d 782, 783 (1974). Likewise, a physician's license to practice medicine may not be revoked absent adequate procedural safeguards. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 755-56, 1 L.Ed.2d 796 (1957) (State cannot exclude a person from the practice of law or from any other occupation in a manner that contravenes due process); see also Medina v. Rudman, supra at 250-51 (the right to engage in common occupations of life, once all the standards have been complied with, is subject to due process protection).

Having concluded that the doctor has a legally protected property right in his license to practice medicine and thus is entitled to procedural due process before the board, we now turn to the second part of our analysis; that is, whether the challenged procedures afford the appropriate procedural safeguards. In analyzing what procedures are due in a particular case, we consider the following factors:

" 'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' "

Appeal of Portsmouth Trust Co., 120 N.H. at 757, 423 A.2d at 605 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)).

The private interest affected...

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