Board of Medical Practice v. Perry-Hooker, PERRY-HOOKE

• Decision Date: 03 February 1981
• Docket Number: No. 366-79,PERRY-HOOKE,M,366-79
• Citation: 139 Vt. 264,427 A.2d 1334
• Parties: BOARD OF MEDICAL PRACTICE of the State of Vermont v. John H.D.
• Court: Vermont Supreme Court

Page 1334

427 A.2d 1334

139 Vt. 264

BOARD OF MEDICAL PRACTICE of the State of Vermont v. John H. PERRY-HOOKER, M. D.

No. 366-79.

Supreme Court of Vermont.

Feb. 3, 1981.

Miller, Norton & Cleary, Rutland (John Paul Faignant, Rutland, on the brief), for plaintiff.

John A. Burgess, Montpelier, for defendant.

Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

BILLINGS, Justice.

In 1974 the appellant, a psychiatrist, was convicted in the United States District Court for the District of Massachusetts of several violations of federal drug laws. This conviction was affirmed on appeal. The Vermont Board of Medical Practice (Board) then conducted an unprofessional conduct hearing in accordance with 26 V.S.A. chapter 23. Certified copies of the appellant's conviction and the affirmance on appeal were introduced. The appellant sought to introduce evidence that his conviction resulted from entrapment by government agents, that the government's principal witness against him had later been convicted of perjury, and that there was a conflict of interest involving that witness and the defense counsel. The Board did not permit the introduction of this evidence. The Board found the appellant guilty of unprofessional conduct and ordered that his license to practice medicine in the state of Vermont be revoked.

The appellant then sought a de novo hearing in the Orange Superior Court in accordance with 26 V.S.A. § 1363, and demanded a jury trial under 26 V.S.A. § 1363(c). The appellant again sought to introduce evidence of entrapment, perjury and conflict of interest. The court refused to allow the introduction of this evidence. The only evidence admitted at this trial was the certified copies of the appellant's conviction in federal court, the affirmance of that conviction on appeal, and an order of the New Hampshire Board of Registration in Medicine suspending the appellant's license to practice in that state. On a motion by the Board, the court directed a verdict against the appellant and affirmed the Board's order revoking the appellant's license to practice medicine in Vermont. The appellant now seeks review of that decision.

The appellant first argues that the court erred in directing a verdict against him. On the Board's motion for a directed verdict the trial court was required to consider the evidence in the light most favorable to the appellant, resolving all conflicts against the Board. South Burlington School District v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 40, 410 A.2d 1359, 1362 (1980); Johnson v. Hoisington, 134 Vt. 544, 546, 367 A.2d 680, 682 (1976). If there was any evidence reasonably tending to support a verdict against the Board, the matter should have gone to the jury and the directed verdict was improper. Condosta v. Condosta, 137 Vt. 35, 38, 401 A.2d 897, 899 (1979).

In this case the trial court was correct in directing a verdict on the issue of unprofessional conduct. Under 26 V.S.A. § 1354(3), conviction of a crime arising out of the practice of medicine is unprofessional conduct, and under 26 V.S.A. § 1354(23) the revocation of a physician's license in another state on any of the grounds specified in § 1354 is unprofessional conduct. The court admitted into evidence without objection certified copies of the appellant's conviction for violations of federal drug laws, the order affirming the conviction on appeal, and the order of the New Hampshire Board of Registration in Medicine revoking his license to practice medicine in that state. Under the statute, the conviction and the revocation are in themselves unprofessional conduct. 26 V.S.A. § 1354. The appellant does not deny the fact of either the conviction or the revocation. The only evidence offered by the appellant concerned entrapment, perjury, and conflict of interest at his trial in federal court. This evidence is not admissible as a collateral attack on the appellant's conviction or the revocation of his license to practice in New Hampshire. Under a statute that defines the conviction of a crime as unprofessional conduct, the issue of guilt may not be relitigated at a later disciplinary hearing. Turco v. Monroe County Bar Association, 554 F.2d 515 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 95 (1977); Furnish v. Board of Medical Examiners, 149 Cal.App.2d 326, 308 P.2d 924, cert. denied, 355 U.S. 827, 78 S.Ct. 37, 2 L.Ed.2d 40 (1957); Levy v. Association of the Bar of City of New York, 37 N.Y.2d 279, 333 N.E.2d 350, 372 N.Y.S.2d 41 (1975).

The appellant also argues that the trial court incorrectly assumed that the revocation of the appellant's license to practice was required in the event there was a finding of unprofessional conduct. 26 V.S.A. § 1363 governs appeals from the Board to superior court and provides that "(t)he proceeding before the superior court shall be de novo ...." Id. § 1363(c). When hearing a case de novo a court must treat the matter as if it had not been heard before and no previous decision had been reached. In re Poole, 136 Vt. 242, 245, 388 A.2d 422, 424 (1978); In re Automobile Liability Insurance Rates, 128 Vt. 73, 77, 258 A.2d 826, 829 (1969). Under 26 V.S.A. § 1361, if there is a finding of unprofessional conduct, the Board has the discretion to impose an appropriate sanction, which might be a reprimand, or the suspension or revocation of the license to practice. In the de novo proceeding, in the superior court, the court had the same discretion in imposing a sanction. In this case, after directing a verdict on the issue of unprofessional conduct, the court affirmed the previous order of the Board. In a de novo proceeding it is error for the court merely to affirm or reverse the decision of the administrative body. In re Poole, supra, 136 Vt. at 246, 388 A.2d at 425. The court should have exercised its discretion with regard to the sanction, and to fail to have done so was error. State v. Ahearn, 137 Vt. 253, 267, 403 A.2d 696, 705 (1979).

The appellant argues, however, that under the statute governing appeals from the Board to the superior court, the discretion to impose a sanction is...