Garada v. Va. Bd. of Med.
| Decision Date | 23 October 2018 |
| Docket Number | Record No. 0732-18-4 |
| Court | Virginia Court of Appeals |
| Parties | HAZEM GARADA, M.D. v. VIRGINIA BOARD OF MEDICINE |
UNPUBLISHED
Present: Judges Alston, O'Brien and AtLee
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Hazem Garada, pro se.
Erin L. Barrett, Assistant Attorney General (Mark R. Herring, Attorney General; Cynthia V. Bailey, Deputy Attorney General; Allyson K. Tysinger, Senior Assistant Attorney General, on brief), for appellee.
Hazem Garada, M.D. ("Garada") appeals a circuit court order affirming a decision by the Virginia Board of Medicine ("the Board") to deny his petition for reinstatement of his medical license. In his assignments of error, Garada challenges the court's finding that substantial evidence supported the Board's decision and argues that the court "simply rubber stamped" the denial. He also contends that the Board failed to follow required procedures and violated his due process rights during the hearing. Finding no error, we affirm the denial of Garada's petition.
Garada was licensed to practice medicine in Virginia in 1995. On June 4, 2004, he pled guilty in federal court to felony health care fraud, in violation of 18 U.S.C. § 1347. As part ofGarada's plea agreement, he "forfeit[ed] and relinquish[ed] permanently his license to practice medicine, in all jurisdictions." Upon notice of his felony conviction, the Department of Health Professions suspended Garada's medical license on August 12, 2004, in accordance with Code § 54.1-2409(A).1 Garada has not practiced medicine in the United States since that date.
On March 30, 2017, Garada filed a petition to reinstate his medical license pursuant to Code § 54.1-2409(D).2 He advised the Board that a federal judge authorized him to petition for reinstatement, despite his plea agreement, because his life had been threatened due to his work as a government informant.
On June 22, 2017, the Board convened an administrative hearing to consider Garada's reinstatement application. Prior to the hearing, the Center for Personalized Education for Physicians ("CPEP") evaluated Garada's knowledge of inpatient and outpatient internal medicine. CPEP reported that although Garada "demonstrated a generally acceptable fund of knowledge of internal medicine with scattered deficiencies," he had "significant weaknesses" in the areas of cardiology, endocrinology, and health maintenance. It determined that his clinical judgment and reasoning ranged from good to unacceptable, and his communication skills with simulated patients were inadequate. CPEP concluded that Garada "did not demonstrate appropriate knowledge and clinical judgment to practice in the inpatient setting without 100% direct supervision." CPEP's assessment report was admitted at the hearing.
The Board also considered Garada's disciplinary record prior to his August 2004 permanent suspension. In 1998, the Department of Health Professions suspended his license as a result of a suspension of his medical license in Ohio. The Ohio suspension occurred because he failed to disclose a prior suspension in West Virginia for "exercising influence within a patient-physician relationship for the purpose of engaging a patient in sexual activity" and failed to disclose a grievance filed against him in Kentucky.
Later in 1998, Garada's license was reinstated in Virginia with terms and conditions, including a reprimand. In 2003, Garada was again reprimanded in Virginia after the Board found that he had given false information and failed to update his practitioner profile, as required by law. Garada had omitted information regarding a medical malpractice settlement in West Virginia, which resulted from a claim that he rendered "substandard care" by failing to monitor a psychiatric patient who committed suicide. Additionally, in an unrelated criminal proceeding in March 2012, Garada was convicted of misdemeanor credit card fraud, in violation of Code § 18.2-195.
At his reinstatement hearing, Garada presented evidence to establish his competency and mitigate his history of criminal and professional misconduct. Garada testified that although he had not practiced medicine in the United States since 2004, he practiced during 2008 in the United Arab Emirates. He also introduced results from a Special Purpose Exam ("SPEX")3 reflecting a score of 77, two points higher than the recommended minimum passing score of 75. However, Garada's SPEX scores in the areas of "Health Maintenance/Systems/Legal & Ethical" and "Neonatal/Preschool" were so low that they did not fully register on his performance chart. Garada presented evidence that he completed several Continuing Medical Education courses, and he answered practice questions posed by Board members.
Garada attempted to explain his convictions for credit card and health care fraud and submitted a number of character evaluations and letters of recommendation, dating back to 1988. He also requested that the hearing be closed for the Board to consider evidence in support of his argument that his life was in danger due to his work as a government informant. The Board denied his request.
At the conclusion of the hearing, the Board voted unanimously to deny Garada's petition for reinstatement. The Board found that his non-practice of medicine in the United States since 2004, coupled with the results from his CPEP evaluation, established that Garada had "not demonstrated that he is safe and competent to return to the practice of medicine." Further, the Board found that Garada had a "long and persistent history, from 1995 to the present, of moral and ethical lapses resulting, at times, in criminal convictions and medical board actions." The Board concluded that these factual findings constituted "acts of unprofessional conduct" for which it could refuse to issue a medical license under Code § 54.1-2915(A).4
Garada appealed the Board's decision to the circuit court, which conducted a hearing on November 17, 2017. Garada contended that the Board should have accommodated his request for a closed hearing because of the implications for national security and his personal safety. He also asserted that because he was allowed to apply for reinstatement despite his plea agreement in federal court, he must be sufficiently competent: "the government would not allow me to go in front of a board if they think that this man will do harm to anybody."
The Board responded that Garada initiated the case knowing that reinstatement hearings occur at regular meetings of the Board, which are open to the public under the Freedom of Information Act. The Board also argued that the proffered "sealed information" was "irrelevant to the case before the [B]oard, which was simply his application for reinstatement of his license to practice medicine."
The court found that substantial evidence in the record supported the Board's decision to deny Garada's application for reinstatement and that Garada failed to show the Board committed an error of law. The court dismissed the petition for appeal and affirmed the Board's order.
ANALYSIS
The Virginia Administrative Process Act, Code §§ 2.2-4000 et seq. ("VAPA"), governs administrative hearings before the Board of Medicine. See Va. Bd. of Med. v. Hagmann, 67Va. App. 488, 499, 797 S.E.2d 422, 427 (2017). When an administrative decision by the Board is appealed, the complaining party has the "burden . . . to designate and demonstrate an error . . . subject to review." Code § 2.2-4027.
In an appeal to the circuit court and the Court of Appeals, the reviewing court may examine the agency decision for "(i) accordance with constitutional right," "(ii) compliance with statutory authority," "(iii) observance of required procedures where any failure therein is not mere harmless error," and "(iv) the substantiality of the evidentiary support for findings of fact."
Hagmann, 67 Va. App. at 499, 797 S.E.2d at 427 (quoting Code § 2.2-4027). See also Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988).
The reviewing court considers the facts "in the light most favorable to sustaining the agency's decision." Hagmann, 67 Va. App. at 500, 797 S.E.2d at 428 (quoting Va. Ret. Sys. v. Blair, 64 Va. App. 756, 770, 772 S.E.2d 26, 32 (2015)). Additionally, the agency's factual findings are awarded great deference. Va. Real Estate Comm'n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983). "[T]he court may reject the agency's findings of fact 'only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion.'" Id. (quoting Basil J. Mezines et al., Administrative Law § 51.01 (1981)).
Pure questions of law are reviewed de novo. Code § 2.2-4027. "However, where the question involves an interpretation which is within the specialized competence of the agency and the agency has been entrusted with wide discretion by the General Assembly, the agency's decision is entitled to special weight in the courts." Johnston-Willis, Ltd., 6 Va. App. at 244, 369 S.E.2d at 8. Accordingly, the agency's "basic law . . . and the purposes of the law are crucial to the determination of a reviewing court." Id.
At the conclusion of the hearing, the Board found that Garada did not meet his burden to demonstrate that he is safe and...
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