Board of Registration in Medicine v. Fiorica

• Citation: 488 A.2d 1371
• Parties: BOARD OF REGISTRATION IN MEDICINE v. Thomas G. FIORICA.
• Decision Date: 06 March 1985
• Court: Supreme Judicial Court of Maine (US)

Page 1371

488 A.2d 1371

BOARD OF REGISTRATION IN MEDICINE v. Thomas G. FIORICA.

Supreme Judicial Court of Maine.

Argued Sept. 17, 1984.

Decided March 6, 1985.

Robert S. Frank, (orally), Susan Herman, Susan Hawkes, Asst. Attys. Gen., Augusta, for plaintiff.

Berman, Simmons & Goldberg, P.A., Jack H. Simmons (orally), Paul F. Macri, Lewiston, for defendant.

Before McKUSICK, C.J., and ROBERTS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

VIOLETTE, Justice.

Dr. Thomas G. Fiorica appeals from a judgment of the Superior Court (Kennebec County) affirming a decision of the Administrative Court revoking his license to practice medicine under 32 M.R.S.A. § 3282 (1978 and Supp.1983). We find no error in the Administrative Court's decision and, therefore, affirm the judgment.

I.

On February 18, 1983, Dr. Fiorica entered a plea of guilty in Superior Court (Kennebec County) to an information charging him with the crime of solicitation to commit arson (17-A M.R.S.A. § 153 (1983)), a class C crime punishable by imprisonment for up to five years. His plea was coupled with protestations of innocence. The court accepted the plea and imposed a sentence of 200 hours of public service in the professional medical service and a fine.

On April 15, 1983, the Board of Registration in Medicine (Board) brought a complaint against Dr. Fiorica pursuant to 32 M.R.S.A. § 3282 (1978 and Supp.1983) ¹ requesting that the Administrative Court revoke Dr. Fiorica's license to practice medicine on the grounds 1) that he had violated 32 M.R.S.A. § 3282(1) (1978 and Supp.1983) by having been convicted of the Class C crime of solicitation to commit arson; and 2) that he violated 32 M.R.S.A. § 3282(5)(G) and (H) (1978 and Supp.1983) by engaging in unprofessional conduct tending to discredit the medical profession and unbecoming a person licensed to practice medicine.

On June 27, 1983, a hearing was held before the Administrative Court. The court denied Fiorica's motions to dismiss for lack of jurisdiction and insufficiency of the evidence. The court admitted the transcript from the Superior Court's Rule 11 proceeding solely to establish that the State had satisfied the court that the State had a factual basis for the charge of solicitation to commit arson.

On August 1, 1983, the Administrative Court concluded that Dr. Fiorica had violated 32 M.R.S.A. §§ 3282(1) and (5)(G) and (H) (1978 and Supp.1983) and directed that his license to practice medicine be revoked. Dr. Fiorica appealed this decision to the Superior Court. On March 20, 1984, the Superior Court affirmed the decision of the Administrative Court and denied the appeal. ² Dr. Fiorica appeals from this decision.

II.

We review the decision of the Administrative Court. Board of Dental Examiners v. Brown, 448 A.2d 881 (Me.1982). Rule 73(a) of the Administrative Court Rules states that the Administrative Court's decision should be reviewed under Rule 73 of the District Court Rules. Maine District Court Civil Rule 73 provides

The appeal to the reviewing court shall be on questions of law only and shall be determined by the Superior Court without jury on the record on appeal specified in Rule 75. Any findings of fact of the District Court shall not be set aside unless clearly erroneous.

A district court's decision on questions of fact must be affirmed unless the appellate court on the entire record is convinced that the findings of fact are clearly erroneous. See 1 Field, McKusick & Wroth, Maine Civil Practice § 52.7 at p. 690 (1970). See also 9 Wright & Miller, Federal Practice and Procedure § 2585 at 735 (1971).

III.

Dr. Fiorica first challenges the Administrative Court's jurisdiction to hear the case because the Board failed to order an investigation pursuant to 32 M.R.S.A. § 3283(1) (1978 and Supp.1983). Section 3283(1) ³ in 1983 which was applicable at the time of this case, required that the Board of Registration in Medicine, on its own motion or upon complaint, order an investigation of all complaints and all allegations of noncompliance with or violations of this chapter relating to physician's conduct and if the board considered that a violation had occurred, it could file a complaint with the Administrative Court, seeking revocation or suspension of plaintiff's license. It is not clear from the pleadings that the board complied with § 3283(1). The record is devoid of any proceeding undertaken by the board under § 3283. The complaint alleges that Fiorica was convicted of solicitation and that such conviction rendered him guilty of unprofessional conduct under § 3285(1)(G) and (H). Nowhere in the complaint is an allegation made that the board pursued an investigation as required by § 3283(1). In none of his pleadings in the Administrative Court nor before the Administrative Court at the time of hearing, however, did Fiorica allege the failure of the board to conduct an investigation pursuant to § 3283(1). We are, therefore, in doubt as to what action, if any, the board took prior to its filing of the complaint before the Administrative Court. We will assume for the purpose of deciding this case that the board did not comply with the provisions of § 3283(1) before filing its complaint with the Administrative Court. Although this failure could have been a defense to the action, Fiorica failed to raise any objection to the board's procedures before the Administrative Court. Fiorica only argued that the court did not have jurisdiction because the Superior Court in the arson proceeding imposed a sentence which required 200 hours of public service in the professional medical service, and, therefore, his license to practice could not be revoked or suspended.

Administrative Court Rule 12(e) states that

If the defendant omits from his answer any defense or objection then available to him he thereby waives that defense except as hereinafter provided:

(1) The Court may allow the defense or objection to be incorporated in the answer by amendment as provided in Rule 15;

(2) The Court in its discretion may allow the defense or objection to be raised at the hearing on the merits upon a showing of cause;

(3) A defense of failure to state a claim upon which relief can be granted and an objection of failure to state a legal defense to a claim may be made by motion for summary decision under Rule 56 or at the hearing on the merits;

(4) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

The first three exceptions to this rule are inapplicable because Fiorica failed to raise this defense until his appeal to the Superior Court. The fourth exception is likewise not applicable. We determine that the provisions of section 3283(1) are procedural in nature, and are not required for subject matter jurisdiction barring the board from bringing a complaint before the Administrative Court. The jurisdiction of the Administrative Court to hear such a complaint is set forth in § 3282 and clearly includes the power to suspend or revoke a physician's license when the evidence is sufficient to support a conviction of any crime punishable for a period of one year or more and/or that the physician has engaged in unprofessional conduct. Even if the board may have failed to comply with the procedures set forth in § 3283, Fiorica waived any defense or objection he may have had by failing to raise such defense or objection before the Administrative Court.

Second, Dr. Fiorica contends that the procedure before the Administrative Court violated his due process rights under the Maine and United States Constitutions. This Court has earlier described the essence of due process as notice and an opportunity to be heard. Board of Overseers of the Bar v. Lee, 422 A.2d 998, 1003 (Me.1980), appeal dismissed, 450 U.S. 1036, 101 S.Ct. 1751, 68 L.Ed.2d 233 (1981) (discussing suspension of an attorney from the bar for failing to pay the registration fee). Dr. Fiorica was provided with notice and a full opportunity to be heard and was represented by competent counsel before the Administrative Court. His due process rights were not violated.

Third, Dr. Fiorica alleges that the Superior Court's sentence imposed after the solicitation conviction requiring him, in addition to a fine and costs, "to perform 200 hours of public service in professional medical service other than at his own office or other than at any health care facility or nursing home in which the defendant has a financial interest," deprived the Administrative Court of jurisdiction to revoke his license since he would need to have his license to fulfill the Superior Court's sentence. We conclude that the Administrative Court did not err in determining that the Superior Court's sentence could be fulfilled by 200 hours of service as a physician's assistant. More importantly, the Superior Court could not have preempted the Administrative Court of its statutorily granted exclusive authority to revoke or suspend a physician's license.

Next, Dr. Fiorica argues that the Administrative Court's decision was not supported by competent evidence. He contends that his plea of guilty with protestations of innocence does not establish guilt for purposes of the license revocation hearing. Section 3282 of 32 M.R.S.A. only required that the licensee be convicted of a crime punishable by imprisonment for a period of one year or more. This court has defined "conviction" as "when no issue either of law or fact remains to be determined, and there is nothing to be done except to pass sentence...." Donnell v. Board of Registration of Medicine, 128 Me. 523, 149 A. 153, 155 (Me.1930) (citing State v. Knowles, 98 Me. 429, 57 A. 588, 589 (Me.1904)). Clearly, Dr. Fiorica was...