Connecticut State Medical Soc. v. Connecticut Bd. of Examiners in Podiatry

• Decision Date: 21 April 1987
• Docket Number: No. 12938,12938
• Citation: 524 A.2d 636,203 Conn. 295
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT STATE MEDICAL SOCIETY, et al. v. CONNECTICUT BOARD OF EXAMINERS IN PODIATRY, et al.

Page 636

524 A.2d 636

203 Conn. 295

CONNECTICUT STATE MEDICAL SOCIETY, et al. v. CONNECTICUT BOARD OF EXAMINERS IN PODIATRY, et al.

No. 12938.

Supreme Court of Connecticut.

Argued Feb. 6, 1987.

Decided April 21, 1987.

Linda L. Randell, with whom was Jeanette C. Schreiber, New Haven, for appellants (plaintiffs).

Elizabeth Harrison Hadley, Asst. Atty. Gen., with whom were Richard J. Lynch, Asst. Atty. Gen., and, on the brief, Joseph I. Lieberman, Atty. Gen., for appellees (named defendant et al.).

Eric Watt Wiechmann, with whom were Brian T. Foley and, on the brief, William H. Narwold, Hartford, for appellees (defendant Stephen Perlmutter et al.).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and KULAWIZ, JJ.

SHEA, Associate Justice.

The issues in this appeal are whether a medical society and one of its physician members have standing to appeal from a declaratory ruling of the board of examiners in podiatry regarding the scope of podiatry practice in Connecticut. Holding that the plaintiffs had failed to allege sufficient grounds to establish aggrievement, the Superior Court rendered judgment dismissing the appeal. The plaintiffs are the Connecticut State Medical Society (medical society), a nonprofit organization of physicians in which membership is voluntary, and Enzo Sella, a physician member of the medical society specializing in orthopedics whose practice includes the diagnosis and treatment of medical problems of the ankle. The defendants are the board of examiners in podiatry (board), the commissioner of health services, and three podiatrists who had been parties to the declaratory ruling proceeding before the board. We find error in the conclusion of the court that the plaintiffs lack standing.

The complaint alleges that in January, 1984, the Connecticut General Life Insurance Company, a Medicare intermediary, issued a bulletin stating that, because the practice of podiatrists is limited to the diagnosis, prevention and treatment of foot ailments, Medicare would not pay for services provided by podiatrists involving problems of the ankle. In March, 1984, in response to the bulletin, the board requested the attorney general to issue a legal opinion on whether treatment of the ankle is within the scope of podiatry practice as defined by General Statutes § 20-50. ¹ Indicating that resolution of that question would entail a factual determination regarding the relation between the foot and the ankle, the attorney general declined to issue the requested ruling.

Pursuant to General Statutes § 4-176, ² the board subsequently held a hearing and then, on June 27, 1985, issued a declaratory ruling that, because "the ankle is part of the foot, and the foot is part of the ankle," the treatment of ankle problems is within the scope of podiatry practice in Connecticut. Claiming that the ruling was arbitrary and capricious, clearly erroneous, in excess of the statutory authority of the board, and made upon unlawful procedure in violation of constitutional and statutory provisions, the plaintiffs appealed to the Superior Court pursuant to General Statutes § 4-183. ³ The defendants filed motions to dismiss, alleging that the plaintiffs were not aggrieved within the meaning of §§ 4-176 and 4-183, and that the court therefore lacked jurisdiction over the subject matter. The court granted the defendants' motions to dismiss in respect to both plaintiffs. From the judgment the plaintiffs have appealed.

I

We first address the issue of whether the motions to dismiss were properly granted in respect to the plaintiff physician, Enzo Sella. "A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original.) Baskin's Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984). Unless Sella could establish that he was aggrieved, he had no standing to appeal. General Statutes §§ 4-176, 4-183; Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).

The complaint alleges that the declaratory ruling of the board "is likely to cause a substantial reduction in the quality of medical care rendered in Connecticut to persons suffering from problems of the ankle," and that the ruling "endangers the health of Connecticut residents who may rely on podiatrists for medical care of such problems...." The complaint further states that Sella will suffer a loss of revenues because patients will seek treatment of ankle problems from podiatrists rather than physicians. The trial court held these grounds insufficient to establish Sella's aggrievement, ⁴ and also rejected the additional ground set forth in the plaintiffs' memorandum in opposition to the motions to dismiss, that, as a physician, Sella has a constitutionally protected property interest in the practice of medicine that "should confer standing and aggrievement for challenges of encroachment upon his professional interests."

" 'The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, "the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." ...' " Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). "Aggrievement is established if 'there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected.' O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953)." Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).

Neither the trial court nor the defendants have seriously challenged the notion that physicians such as Sella have a legally protected property interest in the practice of medicine. A licensed physician has a "right and estate in his profession" of which he cannot be deprived without due process of law. Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233-34, 32 L.Ed. 623 (1889). "The right of a physician to practice his profession is a property right, of which he cannot be arbitrarily deprived." Butcher v. Maybury, 8 F.2d 155, 158 (S.D.Wash.1925). "Cases are legion holding, in one way or another, that the right of a licentiate to practice his profession is a property right, or a right in the nature of a property right, or a valuable franchise, or a valuable privilege." Sloan v. Mitchell, 113 W.Va. 506, 509-10, 168 S.E. 800 (1933); see also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972); Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980); Burden v. Hoover, 9 Ill.2d 114, 118, 137 N.E.2d 59 (1956). Thus, the first prong of the test for determining aggrievement, the existence of a specific personal and legal interest in the subject matter of the decision, has been satisfied with respect to this plaintiff.

We next address the principal issue in this appeal, whether Sella's legal interest in the practice of medicine has been "specially and injuriously affected" by the declaratory ruling of the board. The trial court held that a loss of future revenues, as alleged on Sella's behalf, "is but a prospective and speculative injury, and therefore is insufficient to support a finding of aggrievement."

Ordinarily, an allegation that a governmental action will result in competition harmful to the complainant's business would not be sufficient to qualify the complainant as an aggrieved person. See Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 426, 232 A.2d 330 (1967); Whitney Theatre Co. v. Zoning Board of Appeals, 150 Conn. 285, 288, 189 A.2d 396 (1963); London v. Planning & Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614 (1962). The defendants cite as highly significant the recent decision of the United States Supreme Court in Diamond v. Charles, 476 U.S. ----, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), for the proposition that a speculative loss of revenue is insufficient to confer standing. Diamond involved an appeal by a physician from a ruling of the Court of Appeals for the Seventh Circuit affirming the granting of a permanent injunction against enforcement of several sections of the Illinois Abortion Law of 1975, as amended. Ill.Rev.Stat. c. 38, §§ 81-21 through 81-34 (1983). In support of his claim of standing, the physician, a pediatrician, alleged, inter alia, that, because enforcement of the abortion law would result in fewer abortions, the pool of potential fee-paying patients would be enlarged. Diamond v. Charles, supra, 106 S.Ct. at 1705. The United States Supreme Court rejected this claim because "[t]he possibilities that such fetuses would survive and then find their way as patients to Diamond are speculative, and 'unadorned speculation will not suffice to invoke the federal judicial power.' Simon v. Eastern Kentucky Welfare Rights Org., [426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976) ]." Diamond v. Charles, supra. We are not convinced, however, that these state and federal precedents control our disposition of the present case. ⁵

It is a principle of common law that "[o]ne who causes loss of business or occupation to another merely by engaging in a business or occupation in good faith is not liable to the other for the loss so caused, though he knows that the loss will result." 3 Restatement, Torts § 708, p. 519. "It is only 'unfair' competition that is prohibited." 1 F. Harper & F. James, Jr., Torts (1956) § 6.13, p. 517. These substantive principles have engendered...