COLO. STATE BD. OF MED. EXAMINERS v. Ogin

• Decision Date: 12 September 2002
• Docket Number: No. 01CA1508.,01CA1508.
• Citation: 56 P.3d 1233
• Parties: COLORADO STATE BOARD OF MEDICAL EXAMINERS, Appellee, v. Gary A. OGIN, M.D., Appellant.
• Court: Colorado Court of Appeals

56 P.3d 1233

COLORADO STATE BOARD OF MEDICAL EXAMINERS, Appellee, v. Gary A. OGIN, M.D., Appellant.

No. 01CA1508.

Colorado Court of Appeals, Div. I.

September 12, 2002.

Ken Salazar, Attorney General, Cheryl K. Hara, Assistant Attorney General, Claudia Brett Goldin, Assistant Attorney General, Denver, Colorado, for Appellee.

Sherman & Howard, LLC, Frederick Y. Yu, Claire E. Douthit, Denver, Colorado, for Appellant.

Opinion by Judge CASEBOLT.

Respondent, Gary A. Ogin, M.D., appeals the order of the Colorado State Board of Medical Examiners that revoked his license to practice medicine. We affirm.

Respondent practiced as an anesthesiologist in the administration of surgical anesthesia and in treating patients for alleviation of pain through the administration of medication, a practice known as interventional pain management (IPM). Respondent suffers from a sleep disorder, known as idiopathic central nervous system hypersomnia, which causes him to become drowsy and fall asleep in environments of low stimulation. Individuals with that disorder also have trouble maintaining wakefulness during the daytime.

An inquiry panel of the board brought disciplinary charges against respondent based on several instances of unprofessional conduct, in addition to the charge that his disability rendered him unsafe to practice medicine. The charges were supported by evidence that, on a number of occasions, respondent fell asleep while administering anesthesia to patients during surgery. Over the same period, respondent accidentally caused three pneumothoraces—a puncture of the chest wall that can lead to lung collapse—while administering IPM medication. Respondent also engaged in sexual contact with a patient while she was anesthetized during knee surgery.

An administrative law judge (ALJ), sitting in lieu of a hearings panel of the board, held an evidentiary hearing on the charges and issued an initial decision finding that the inquiry panel had proved all of the charges against respondent and that he was unsafe to practice anesthesiology, either in surgical practice or in IPM. As sanctions, the ALJ adopted the inquiry panel's recommendations and restricted respondent's practice to IPM with strict conditions of peer monitoring and treatment for his illness.

Respondent filed exceptions to the ALJ's decision. A separate hearings panel of the board then reviewed the ALJ's decision and heard additional argument from respondent and counsel for the inquiry panel. The hearings panel adopted all of the ALJ's findings and conclusions, but set aside the sanctions. Instead, the panel revoked respondent's license to practice medicine. This appeal followed.

I.

Respondent asserts that the board's revocation of his license for conduct resulting from his sleep disorder violates the Americans with Disabilities Act (ADA). We disagree.

Title II of the ADA provides that no otherwise qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132 (1994); see Community Hosp. v. Fail, 969 P.2d 667 (Colo.1998); Colo. State Bd. of Dental Exam'rs v. Major, 996 P.2d 246 (Colo.App.1999).

The parties agree, and we concur, that as a "public entity" within the meaning of 42 U.S.C. § 12131(1)(B) (1994), the board and its licensing activities are subject to ADA Title II. See 28 C.F.R. § 35.130(b)(6) (public entity may not administer a licensing program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability); Hason v. Med. Bd., 279 F.3d 1167 (9th Cir.2002)(medical licensing falls within scope of ADA Title II); see also People v. Reynolds, 933 P.2d 1295 (Colo.1997)(ADA applicable to attorney discipline proceedings); Colo. State Bd. of Dental Exam'rs v. Major, supra (ADA applicable to dentist disciplinary proceedings).

The ADA was enacted not only to remedy discrimination in the form of intentional exclusion, but also to mandate reasonable modifications to existing policies or otherwise to reasonably accommodate individuals with disabilities. 42 U.S.C. § 12101(a)(5); PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001); Thompson v. Colorado, 278 F.3d 1020 (10th Cir.2001)(Title II's primary focus is to remedy the failure of public entities to make reasonable accommodations for persons with disabilities).

Accordingly, the ADA imposes the affirmative duty to attempt reasonable accommodations for qualified individuals with disabilities. Washington v. Indiana High Sch. Athletic Ass'n, 181 F.3d 840 (7th Cir.1999)(failure to provide reasonable accommodation is actionable discrimination under Title II). "Qualified individuals" are defined as those individuals with disabilities who can meet a public entity's essential eligibility requirements if provided reasonable accommodation. 28 C.F.R. § 35.104; Community Hosp. v. Fail, supra (ADA Title I employment action).

What constitutes reasonable accommodation requires an individualized assessment. Wong v. Regents of the Univ. of Calif., 192 F.3d 807 (9th Cir.1999). The duty to make reasonable accommodation does not require a public entity to fundamentally alter the nature of the service it provides. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.130(b)(7); Thompson v. Colorado, supra. And, the ADA does not prevent professional licensing agencies from imposing discipline if the offender is not a qualified individual with a disability. People v. Reynolds, supra; Colo. State Bd. of Dental Exam'rs v. Major, supra.

Likewise, the ADA does not protect an individual with a disability who, by virtue of the disability, is a direct threat to public safety. Kirbens v. Wyo. State Bd. of Med., 992 P.2d 1056 (Wyo.1999). A person who poses a significant risk to public safety is not a qualified individual with a disability if reasonable modifications to the public entity's policies, practices, or procedures will not eliminate the risk. 28 C.F.R. pt. 35, app. A at 481; Kirbens v. Wyo. State Bd. of Med., supra.

A.

The ALJ found that respondent's sleep disorder is a disability under the ADA and that the acts constituting unprofessional conduct (excepting the sexual misconduct) resulted from his disability. The ALJ also found that respondent poses a significant risk to his patients' safety because of his disability and that no reasonable accommodation could be made that would permit respondent to practice medicine safely. Accordingly, the ALJ found that respondent is not a qualified individual with a disability. The board adopted all of these findings and conclusions. The board's conclusion that no reasonable accommodation can be made for respondent's disability is a finding of ultimate fact that we must uphold if it has a reasonable basis in law and is supported by substantial evidence in the record. See Colo. State Bd. of Dental Exam'rs v. Major, supra. Substantial evidence is probative, credible, and competent evidence that warrants a reasonable belief in the existence of a fact without regard to contradictory evidence or inference. Colo. State Bd. of Med. Exam'rs v. Davis, 893 P.2d 1365 (Colo.App.1995).

Substantial evidence in the record supports the board's decision that no reasonable accommodation could be made that would permit respondent to practice IPM or surgical anesthesia while ensuring patient safety. See People v. Reynolds, supra (concluding that accommodation proposed by attorney would not safeguard the public interest); see also Alexander v. Margolis, 921 F.Supp. 482 (W.D.Mich.1995)(no reasonable modification could be made to regulations restricting medical practice); State ex rel. Oklahoma Bar Ass'n v. Busch, 919 P.2d 1114 (Okla.1996); Kirbens v. Wyo. State Bd. of Med., supra.

The board found, with evidentiary support, that:

In this case, the fact[s] proven at hearing established that with or without reasonable accommodation respondent cannot practice anesthesiology or interventional pain management without risk of injury or death to his patient. The evidence showed that respondent suffers from a lifelong condition for which there is no cure and uncertain remedial measure[s] which can be taken to prevent its symptoms. With or without monitors and medications, respondent falls asleep during surgical procedures and has a higher inciden[ce] of pneumothoraces during interventional pain management procedures. The evidence further established that no medication was effective in insuring that respondent would not fall asleep. Even more important, since respondent was inclined to self medicate and alter dosages, it is not possible to monitor respondent's response to medications in order to find medication which reliably works to keep respondent awake. Therefore, respondent is not a qualified person with a disability entitled to the protections of the ADA.

The board also found, again with record support, that certain aspects of respondent's condition can escape detection by others even under close monitoring, that respondent is often unaware of his lapses of consciousness, and that he had a history of denial, a lack of self-awareness, and significant medical noncompliance with respect to his sleep disorder, all of which limit treatment.

This evidence, as well as the documented instances in which respondent's disability resulted in substandard care while practicing both surgical anesthesia and IPM, supports the conclusion that no reasonable accommodation could eliminate the risk to patient safety posed by respondent's disability. See Florida Bar v. Clement, 662 So.2d 690 (Fla. 1995)(where nothing can prevent repetition of the misconduct, no reasonable accommodation is possible that will protect the interest guarded by the licensing authority, and the ADA does not impair the agency's ability to impose discipline).

Because these findings and...