Chase v. Agency of Human Serv., 10–122.

• Decision Date: 08 March 2011
• Docket Number: No. 10–122.,10–122.
• Citation: 2011 VT 31,19 A.3d 167
• Court: Vermont Supreme Court
• Parties: David S. CHASE, M.D.v.AGENCY OF HUMAN SERVICES, DEPARTMENT OF HEALTH, BOARD OF MEDICAL PRACTICE, State of Vermont, et al.

19 A.3d 167
2011 VT 31

David S. CHASE, M.D.
v.
AGENCY OF HUMAN SERVICES, DEPARTMENT OF HEALTH, BOARD OF MEDICAL PRACTICE, State of Vermont, et al.

No. 10–122.

Supreme Court of Vermont.

March 8, 2011.

[19 A.3d 168]

Present: REIBER, C.J., JOHNSON, SKOGLUND, BURGESS, JJ. and MARTIN, Superior Judge (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Plaintiff David Chase appeals the superior court's judgment in favor of defendant Philip Ciotti with respect to plaintiff's claim under 42 U.S.C. § 1983 that defendant, an investigator for the State, knowingly falsified an affidavit submitted as grounds to summarily suspend plaintiff's medical license. The superior court concluded that defendant was entitled to summary judgment based on the doctrine of qualified immunity. We affirm insofar as we agree with the court that the assertions in the affidavit prepared by defendant did not deviate materially from those made by the affiant in a deposition conducted by plaintiff's attorney, and that no clearly established law precluded defendant from paraphrasing the affiant's assertions in a manner that did not materially alter them.

¶ 2. Plaintiff had been practicing general ophthalmology and eye surgery for over thirty years when, on July 20, 2003, the State moved the Medical Practice Board to summarily suspend his medical license for allegedly recommending and performing medically unnecessary cataract surgeries. The State's motion was based in part on a July 17, 2003 affidavit prepared by defendant and signed by one of plaintiff's former employees, Amy Landry. The affidavit indicated, among other things, that plaintiff had purposefully falsified medical records to pressure patients into undergoing unnecessary cataract surgery. On July 21, 2003, the Board summarily suspended plaintiff's license to practice medicine.

¶ 3. On December 1, 2003, the State filed a superseding specification of charges, alleging 136 counts of unprofessional conduct concerning thirteen patients to whom plaintiff had recommended cataract surgery. Three weeks later, on December 22, 2003, plaintiff's attorney took Ms. Landry's deposition. In February 2004, plaintiff moved the Board to reinstate his license and dismiss the charges against him, arguing, among other things, that the Stale falsified evidence and interfered with witnesses in violation of his due process rights. The Board denied the motion to dismiss, noting that numerous additional charges independent from the assertions contained in the challenged affidavit provided sufficient grounds to warrant summary suspension of plaintiff's license. The Board nevertheless granted plaintiff's motion to reinstate his license based on the appearance of impropriety; however, in April 2004, plaintiff agreed not to practice medicine until final resolution of the charges against him.

[19 A.3d 169]

¶ 4. Between September 2006 and February 2008, after plaintiff was acquitted of federal charges pertaining to his medical practice, the Board conducted a merits hearing on the State's charges against him. In its December 2007 decision, the Board concluded that plaintiff had engaged in unprofessional conduct with respect to his treatment of ten patients. The Board's determination was based on its findings that Dr. Chase made inaccurate diagnoses about the patients' vision before recommending surgery and further made confusing and misleading statements to his patients as to whether they should obtain a second opinion regarding the need for surgery. The Board further found that Dr. Chase's conduct toward the patients represented a gross failure to exercise reasonable care, which amounted to a failure to practice competently and, in some instances, dishonorable conduct. As for plaintiff's due process claims, the Board stated that “the evidence does not establish that the State was intentionally falsifying evidence or perpetrating a fraud upon the Board.” This Court affirmed the Board's decision in In re Chase, 2009 VT 94, 186 Vt. 355, 987 A.2d 924, concluding, among other things, that plaintiff “received a full and fair opportunity to defend himself against the State's charges, and that he did in fact mount a vigorous defense to the charges in a thorough and lengthy merits hearing.” Id. ¶ 24.

¶ 5. Meanwhile, during the Board proceedings, plaintiff filed a civil rights action in the superior court, rather than await the Board's decision, regarding his due process claims. In April 2007, the superior court dismissed all counts based on a lack of subject matter jurisdiction and the doctrine of primary jurisdiction. On appeal, we dismissed as moot all of plaintiff's claims seeking injunctive relief insofar as the proceedings before the Board had ended at that point and there was no pending proceeding susceptible to the requested remedies of injunction or dismissal. Chase v. State, 2008 VT 107, ¶ 12, 184 Vt. 430, 966 A.2d 139. Regarding plaintiff's claims for money damages from individual defendants, we remanded those counts to the superior court for further consideration, noting that the court had previously declined to address them until the Board proceedings were completed. Id. ¶ 18.

¶ 6. Following our remand, the superior court dismissed all of the remaining defendants in the case except for Mr. Ciotti, whom plaintiff accused of purposefully falsifying the affidavit he had prepared for Ms. Landry's signature. In March 2009, defendant moved for summary judgment, arguing, in part, that the assertions in the July 2003 affidavit did not deviate materially from Ms. Landry's testimony in her December 2003 deposition conducted by plaintiff's attorney. In support of his motion, defendant asked the court to compare the July 2003 affidavit with Ms. Landry's deposition testimony and with her October 2003 affidavit submitted in another civil case not involving defendant. In its November 2009 summary judgment decision, the superior court rejected, as a matter of law, plaintiff's claims...