Gandhi v. State Medical Examining Bd., 91-2044

• Decision Date: 25 March 1992
• Docket Number: No. 91-2044,91-2044
• Parties: Yogesh N. GANDHI, M.D., Petitioner-Appellant, d v. STATE of Wisconsin MEDICAL EXAMINING BOARD, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 295

483 N.W.2d 295

168 Wis.2d 299

Yogesh N. GANDHI, M.D., Petitioner-Appellant, ^d v. STATE of Wisconsin MEDICAL EXAMINING BOARD, Respondent-Respondent.

No. 91-2044.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 26, 1992.

Opinion Released March 25, 1992.

Opinion Filed March 25, 1992.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Stephen M. Glynn and James A. Walrath of Shellow, Shellow & Glynn, S.C. of Milwaukee.

On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and William H. Wilker, Asst. Atty. Gen.

Before NETTESHEIM, P.J., and BROWN and SNYDER, JJ.

BROWN, Judge.

The major issue is the proper standard of proof to be used by the Medical Examining Board. Pursuant to statute, the Board uses the "preponderance of the evidence" standard in disciplinary actions involving physicians. Yogesh N. Gandhi, M.D., argues that the standard used in his hearing violated his constitutional guarantees of due process and equal protection. We do not agree. We also reject Gandhi's claim that the Board's action was arbitrary and capricious.

Gandhi was trained as a neurosurgeon and practices in Racine. The Division of Enforcement of the Wisconsin Department of Regulation and Licensing charged him with improperly touching the intimate parts of three female patients and with other related sexual activity that had no medical purpose. Gandhi denied the accusations. Subsequent proceedings before a hearing examiner resulted in a finding that the testimony of the three patients was the most credible; the hearing examiner recommended a decision by the state Medical Examining Board that it revoke Gandhi's license. The Board accepted the recommendation and ordered revocation. Gandhi petitioned the circuit court to review the Board's decision, specifically arguing that the lesser burden of proof imposed by the hearing examiner was unconstitutional. The circuit court disagreed and affirmed the Board's decision. Revocation was stayed pending this appeal.

Gandhi's constitutional arguments concerning the proper burden of proof required by statute is a question of law which this court may review without deference to the trial court. See State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989). Legislative enactments are presumed constitutional, and this court will sustain a statute against attack if there is any reasonable basis for the exercise of legislative power. Id. The party bringing the challenge must show the statute to be unconstitutional beyond a reasonable doubt. Id. Every presumption must be indulged to sustain the law if at all possible and, whenever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality. Id. The court cannot reweigh the facts found by the legislature, and if we can conceive of facts on which the legislation could reasonably be based, we will uphold the legislation's constitutionality. Id.

Even though we review this issue de novo, and have done so, we state that the analysis undertaken and conclusions drawn by the trial court parallel ours, and we will, therefore, borrow liberally from the trial court's discussion.

Gandhi's burden of proof issue encompasses three specific arguments. First, because of the nature of the interest involved, due process mandates proof of the allegations against a physician by at least clear and convincing evidence. Second, using the lesser burden of preponderance of the evidence denies him equal protection because attorneys are entitled to the higher burden. Third, the statute adopting the lesser burden was for a specific time period, thus creating distinct classes within the medical profession itself, also a denial of equal protection.

The due process and equal protection issues arise as a result of an action by the legislature in 1985. Up to that time, the higher burden of clear and convincing evidence had been applied in examining board proceedings under ch. 440, Stats. In 1985, the legislature changed the burden of proof as witnessed by sec. 440.20(3), Stats. (1985-86), which read:

The burden of proof in disciplinary proceedings before the department or any examining board is clear and convincing evidence, for proceedings concerning violations occurring before January 1, 1986, and on or after July 1, 1989, and a preponderance of the evidence, for proceedings concerning violations occurring on or after January 1, 1986, and before July 1, 1989.

All three incidents occurred in 1988.

The initial argument concerns whether the above statute announcing the burden of proof standard satisfies constitutional due process. In deciding this issue, we consider three factors: (1) the nature of the private interest affected by the proceeding; (2) the governmental interest to be furthered by the proceeding; and (3) the risk of error in the determination by the fact finder under the specific burden of proof employed. See Mathews v. Eldridge 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

The first factor, the nature of the interest affected, regards Gandhi's right to practice his profession. Loss of that right in Wisconsin may also affect his ability to practice elsewhere. The interest is therefore substantial and the potential deprivation is great. This must be tempered, however, by the realization that a person once revoked may subsequently demonstrate that he or she is competent to practice and licensure can once again be granted. See sec. 448.02(6), Stats. Moreover, the nature of the interest affected is not the only factor to consider; the Mathews test requires that it be balanced against the two additional factors.

Gandhi argues that whether there is a chance of re-licensing is something "outside the record" and we should not consider it. There are two responses. First, citing a statute is not going outside the record. Second, part of our standard of review is to conceive of any facts upon which the legislation could reasonably be based. We do so here.

The second factor, the governmental interest to be furthered by the proceeding, tips the balance in favor of the statute. Wisconsin has long recognized the interest in regulating professional and occupational licensure. See, e.g., Stockheimer v. American Bar Ass'n, 407 F.Supp. 451 (W.D.Wis.1975), decided sub nom. Turner v. American Bar Ass'n, 407 F.Supp. 451 (N.D.Tex.1975). We agree with the trial court that the state has not only a strong interest, but also an obligation to protect the health, safety and welfare of its citizens. We further agree with the trial court that the practice of medicine presents a prime example of a profession in which incompetency, wrongdoing or misconduct can threaten life itself. Protecting citizens is one of the fundamental reasons for a government's existence. This obligation of the state is superior to the privilege of any individual to practice his or her profession. We are convinced that this obligation was foremost in the collective mind of the legislature, as evidenced by sec. 3045(1)(a), 1985 Wis. Act 29, stating in part that the legislature's purpose was "to better protect the public health and safety against incompetent practitioners by providing for more efficient and direct regulation of licensed professionals." The legislature thus established a reasonable basis for furthering its interest and its obligation.

Gandhi looks to Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), to attack the preceding rationale. Santosky involved a termination of parental rights proceeding and the Supreme Court determined that the proper burden was at least the clear and convincing standard. Id. at 768-70, 102 S.Ct. at 1402-04. Gandhi made this same argument before the trial court. The attorney general and the trial court opined that the right to practice medicine is not a fundamental right which can be equated with the parents' interest in the rearing, care and companionship of their child. They cited Steadman v. Securities and Exchange Comm'n, 450 U.S. 91, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981), to say that the right to pursue a profession was not a fundamental interest requiring any greater burden of proof than preponderance of the evidence. Gandhi responded then, and responds now, that Steadman did not present a constitutional challenge, but rather was a statutory interpretation question. Nonetheless, we agree with the trial court that the decision still gives recognition and effect to a legislative adoption of a preponderance standard. See id. at 100-01, 101 S.Ct. at 1007.

Gandhi also claims that the attorney general cannot logically acknowledge a fundamental right of parents to a higher burden than doctors, when the state's own interests in protecting medical patients and in protecting children from abuse and incompetency are virtually identical. Thus, he claims that the attorney general has failed to rationally distinguish Santosky.

We disagree. We cannot consider the governmental interest factor in a vacuum, but must balance the government's interest against the private interest to be protected. The private interest of parents to care for their children is a substantial, constitutional right. In re J.L.W., 102 Wis.2d 118, 132-33, 306 N.W.2d 46, 53 (1981). While the state may interfere, and sometimes is obligated to do so, it must carry a heavy burden for its interference. The private interest of a physician to practice his or her profession, on the other hand, is not a right; it is a...