Boedy v. Department of Professional Regulation

• Decision Date: 31 January 1985
• Docket Number: No. 64870,64870
• Citation: 10 Fla. L. Weekly 90,463 So.2d 215
• Parties: 10 Fla. L. Weekly 90 R. Frederick BOEDY, Petitioner, v. DEPARTMENT OF PROFESSIONAL REGULATION, Respondent.
• Court: Florida Supreme Court

Page 215

463 So.2d 215

10 Fla. L. Weekly 90

R. Frederick BOEDY, Petitioner, v. DEPARTMENT OF PROFESSIONAL REGULATION, Respondent.

No. 64870.

Supreme Court of Florida.

Jan. 31, 1985.

Philip J. Padovano, Tallahassee, for petitioner.

Charles F. Tunnicliff, Senior Atty., Dept. of Professional Regulation, Tallahassee, for respondent.

ADKINS, Justice.

This cause is before us pursuant to a certified question of great public importance from the First District Court of Appeal. Boedy v. Department of Professional Regulation, Board of Medical Examiners, 444 So.2d 503 (Fla.1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent, Department of Professional Regulation, filed an administrative complaint against the petitioner on November 15, 1982, seeking to revoke, suspend, or take other disciplinary action against him as a licensee under the Medical Practice Act. The complaint asserted that petitioner suffered from a mental or emotional illness which rendered him "unable to practice medicine with reasonable skill and safety" as provided in section 458.331(1)(s), Florida Statutes (1981). Petitioner denied the allegations.

On February 18, 1983, respondent entered an order which required petitioner to submit to a series of psychiatric examinations commencing on March 1, 1983. The order stated that the mental examinations were required "for the purpose of obtaining examination reports and expert opinion and testimony concerning [petitioner's] ability to practice medicine with reasonable skill and safety."

Petitioner sought a protective order to avoid the examination requirement, based in part, on the claim that his fifth amendment privilege against self-incrimination would be violated by the mental examinations required under section 458.331(1)(s), Florida Statutes (1981).

In a second order, respondent rescheduled the examination to begin on March 29, 1983. Petitioner renewed his motion for a protective order. In response, respondent denied that the mental examinations were violative of petitioner's constitutional right against self-incrimination.

On March 16, 1983, the hearing officer entered an order denying petitioner's motion for protective order. Petitioner filed for review of the order in the First District Court of Appeal to challenge the constitutional validity of the agency's determination.

On January 18, 1984, the district court issued its opinion stating that the statutory competence proceedings are not penal proceedings, and therefore rejected petitioner's claim for fifth amendment protection. 444 So.2d at 506. The district court, finding the question to be of great public importance, certified the following question to this Court:

Whether the fifth amendment privilege against compelled self-incrimination applies to disciplinary proceedings initiated under section 458.331(1)(s), Florida Statutes, to determine whether a physician is unable to practice medicine with reasonable skill and safety to patients as a result of a mental or physical condition. Id.

The district court correctly answered the question in the negative, and we approve its decision.

Section 458.331(1)(s), Florida Statutes (1981), addresses the act of:

(s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a physician to submit to a mental or physical examination by physicians designated by the department. Failure of a physician to submit to such examination when so directed shall constitute an admission of the allegations against him, unless the failure was due to circumstances beyond his control, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence. A physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a physician in any other proceeding.

Petitioner relies upon this Court's holding in State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla.1973), in support of his argument that the fifth amendment privilege against compelled self-incrimination applies to proceedings initiated under section 458.331(1)(s), Florida Statutes (1981). Petitioner asserts that section 458.331(1)(s) is unconstitutional under Vining.

In Vining, a licensed real estate broker refused to file the statutorily required sworn answer to charges made against him in a professional disciplinary proceeding and the statute provided for entry of a default if no answer was filed. This Court held that filing an answer amounted to testimony, that the testimony was compelled under threat of license forfeiture, and that the potential penalty of license suspension or revocation was sufficiently severe to invoke the constitutional protections against compulsory self-incrimination. Id. at 492.

Recognizing that proceedings under section 458.331(1)(s), Florida Statutes (1981), are limited to determinations of fitness to practice, the district court distinguished Vining, which involved penal sanctions which were sought due to professional misconduct. 444 So.2d at 505. The district court further found that proceedings under the statute cannot be considered penal in character for purposes of the fifth amendment privilege against compelled self-incrimination and that the proceedings merely seek to determine whether petitioner is "able to practice medicine with reasonable skill and safety." Id. at 506. The district court found section 458.331(1)(s), Florida Statutes (1981), to be constitutional. We agree.

The right of a properly qualified and licensed individual to practice medicine is a valuable property right which must be protected under the constitution and laws of Florida. State ex rel. Sbordy v. Rowlett, 138 Fla. 330, 190 So. 59 (1939). This right is not absolute, however, but is subject to regulation under the police power of this state. Id. at 62. When a conflict arises between the right of a physician to pursue the medical profession and the right of the sovereignty to protect its citizenry, it follows that the rights of the physician must yield to the power of the state to prescribe reasonable rules and regulations which will protect the people from incompetent and unfit practitioners.

The interest of the sovereignty in regulating physicians is especially great since physicians are in a position of public trust and responsibility. Like other professionals, the physician is constantly interacting with the public. As such, mental...