Balian v. Board of Licensure in Medicine

• Decision Date: 11 January 1999
• Citation: 722 A.2d 364,1999 ME 8
• Parties: Epiphanes K. BALIAN v. BOARD OF LICENSURE IN MEDICINE.
• Court: Maine Supreme Court

722 A.2d 364

1999 ME 8

Epiphanes K. BALIAN v. BOARD OF LICENSURE IN MEDICINE.

Supreme Judicial Court of Maine.

Argued September 8, 1998.

Decided January 11, 1999.

Chadbourn H. Smith (orally), Fenton, Chapman, Fenton, Smith & Kane, P.A., Bar Harbor, for plaintiff.

Andrew Ketterer, Attorney General, Jeffrey Frankel, Asst. Atty. Gen. (orally), Ruth McNiff, Asst. Atty. Gen., Augusta, for defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

DANA, J.

[¶ 1] Epiphanes K. Balian appeals from the judgment entered in the Administrative Court (Beaudoin, C.J.) affirming the decision and order of the Board of Licensure in Medicine imposing a $1,500 civil penalty against him for "unprofessional conduct" in violation of 32 M.R.S.A. § 3282-A(2)(F) (Supp.1998)¹ for his failure to release medical records to his patient's doctors. On appeal, Balian argues that the Board's failure to establish by record evidence the ethical standards governing the release of medical records violated Balian's due process rights. We agree and vacate the court's decision.

[¶ 2] Dr. Dorothy Howard, a clinical social worker, referred a patent to Balian, who provided two hours of psychiatric services. After the visit, the patient wrote to Balian requesting that he send copies of her records to Howard and Dr. Janet Fowle. The patient signed two releases and included them in the letter.² Balian did not respond to this request.

[¶ 3] In a second letter a month later, the patient informed Balian that neither Fowle nor Howard had received the requested medical records. Balian again failed to comply and never explained to the patient why he did not respond to her requests.

[¶ 4] The patient complained to the Board, and the Board charged Balian with unprofessional conduct in violation of 32 M.R.S.A. § 3282-A(2)(F). The Board's notice of adjudicative hearing set forth the following issue:

Whether you have engaged in unprofessional conduct by violating any standard of professional behavior which has been established for the practice of medicine by your failure, as required by Title 22 M.R.S.A. Section 1711-A,³ to release the medical records or a narrative report of [the patient] to the parties she requested. Title 32 M.R.S.A. Section 3282-A(2)(F).

[¶ 5] At the hearing, the Board's inquiry focused exclusively on Balian's alleged violation of 22 M.R.S.A. § 1711-B. The Board did not discuss or introduce in evidence any standard of professional conduct that Balian was alleged to have violated.

[¶ 6] Balian testified that he did not release the patient's medical records because he requires that (1) the patient's signature be witnessed and attested to by someone from the requesting physician's office; (2) the witness sign the release form; and (3) the physician make a specific request to Balian. Because of noncompliance with these requirements Balian testified that he never sent the records to Fowle or Howard. The Board found that Balian never told the patient about his requirements for the release of medical records.⁴ Pursuant to the Board's written request, Balian provided the patient's records to the Board, but the records are not in evidence.

[¶ 7] The Board first concluded that 22 M.R.S.A. § 1711-B was inapplicable and then found that Balian's refusal to release the records to Fowle and Howard constituted "unprofessional conduct" pursuant to 32 M.R.S.A. § 3282-A(2)(F). In reaching its decision, the Board stated that, "at the very least, the American Medical Association Code of Ethics, basic principles of medical ethics and the common law required [Balian] to either release medical records as directed by [the patient] or inform [the patient] of the standard [he] was requiring before he would release her medical records." The Board issued a reprimand to Balian and imposed a civil penalty of $1,500.

PROCEDURAL DUE PROCESS

[¶ 8] Balian argues that the Board violated his procedural due process rights by failing to reveal and introduce in evidence the standards of professional ethics he was alleged to have violated. We agree.

[¶ 9] This Court reviews the Board's decision directly for an abuse of discretion, errors of law, or findings unsupported by the evidence. Winsor v. Maine Real Estate Comm'n, 1997 ME 122, ¶ 4, 695 A.2d 1198, 1200.

[¶ 10] The Due Process Clauses of the Maine and Federal Constitutions⁵ guarantee due process before the state deprives a citizen of a property right. See Board of Overseers of the Bar v. Lefebvre, 1998 ME 24, ¶ 15, 707 A.2d 69, 73. "[W]hat process is due will vary from case to case . . . to assure the basic fairness of each particular action according to its circumstances." Fichter v. Board of Envtl. Protection, 604 A.2d 433, 437 (Me.1992) (quoting Secure Env'ts, Inc. v. Town of Norridgewock, 544 A.2d 319, 324-25 (Me.1988)). The United States Supreme Court has set forth three factors to assess whether the state violated an individual's right to due process:

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 administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see also Fichter, 604 A.2d at 437 (Me.1992) (applying Eldridge factors to due process challenge to denial of permit by Board of Environmental Protection).

[¶ 11] With respect to the first Eldridge factor, Balian's property interest in his professional license and his financial resources are at stake.⁶ See Lefebvre, 1998 ME 24, ¶ 15, 707 A.2d 69, 73 (due process protections implicated in hearing to suspend attorney's license); Board of Registration in Med. v. Fiorica, 488 A.2d 1371, 1375 (Me. 1985) (due process protections implicated in proceeding to revoke doctor's license).

[¶ 12] With respect to the second Eldridge factor, disclosing the standard permits the licensee to assert a defense, enables both expert and lay members of the Board to evaluate the licensee's conduct, and enhances our ability to provide effective judicial review. See In re Appeal of Schramm, 414 N.W.2d 31, 35-36 (S.D.1987) (discussing rationale for due process protections in professional discipline proceedings). A licensee should have the opportunity to rebut the evidence establishing a standard and the right to construct a defense based on the standard. See Lefebvre, 1998 ME 24, ¶ 16, 707 A.2d at 73 (reasoning that if licensee had fair notice regarding charges against him he could have adduced evidence and constructed arguments to refute theory of misconduct); In re Appeal of Schramm, 414 N.W.2d at 35 (discussing due process protections available when evidence introduced to establish a professional's negligence). Here, the Board denied Balian these opportunities by failing to even disclose the appropriate ethical standards.

[¶ 13] Moreover, in a Board comprised of both lay persons and persons of the regulated profession, the absence of a clear standard unduly shifts power and influence to the nonlay members. See In re Appeal of Schramm, 414 N.W.2d at 35. Here, the lay member on the Board, without knowing the applicable ethical standard, most likely had to defer to the professional members. This imbalance of power would not exist — and the risk of an erroneous deprivation of a licensee's interests would therefore be reduced — if all Board members understood the applicable standard and based their decision thereon.⁷

[¶ 14] Finally, effective judicial review requires that a Board rely on standards set forth in the record. See id. at 36-37 (holding dental board's charge of "unacceptable patient care" arising from dentist's failure to perform ordinary skills had to base findings on expert testimony). This Court's ability to review this case is limited without record evidence regarding the standards applied by the Board. For example, the only evidence presented to this Court with respect to the ethics governing the release of medical records is confined to the Administrative Court's decision that discusses — for the first time in these proceedings — excerpts from the American Medical Association's (AMA) Code of Ethics and two medical ethics treatises.⁸ The record of the hearing does not demonstrate what standard, if any, was applied by the Board.

[¶ 15] With respect to the final Eldridge factor, requiring that the Board introduce in evidence the applicable standard does not entail an unreasonable administrative burden. 424 U.S. at 335,96 S.Ct. 893. The Board may introduce evidence of the applicable standard through a variety of methods, including, for example, the simple admission in evidence of the applicable AMA provisions. See Arthurs v. Board of Registration in Med., 383 Mass. 299, 418 N.E.2d 1236, 1244 (Mass.1981) (suggesting that an agency may establish facts by expert witnesses or official notice). For these reasons, procedural due process requires that the Board introduce in evidence the applicable standard of conduct against which the Board will assess Balian's conduct.

[¶ 16] We agree, however, that where an act is blatantly illegal or improper, or where the licensee admits to a violation, the Board need not introduce record evidence to establish the necessary standard. Cf. Jim Mitchell & Jed Davis, P.A. v. Jackson, 627 A.2d 1014, 1017 (Me.1993) (expert testimony to establish standard of care for attorney unnecessary where breach of duty is "so obvious that it may be determined by the Court as a matter of law, or is within the ordinary knowledge and experience of laymen."); Cyr v. Giesen, 150 Me. 248, 252, 108 A.2d 316, 318 (1954) (expert testimony to establish standard of care for physician unnecessary "where the negligence and harmful results are...