In re Chase

• Decision Date: 28 August 2009
• Docket Number: No. 08-191.,08-191.
• Citation: 2009 VT 94,987 A.2d 924
• Parties: In re Appeal of David CHASE, M.D.
• Court: Vermont Supreme Court

987 A.2d 924

2009 VT 94

In re Appeal of David CHASE, M.D.

No. 08-191.

Supreme Court of Vermont.

August 28, 2009.

William H. Sorrell, Attorney General, and Michael O. Duane and Bridget C. Asay, Assistant Attorneys General, Montpelier, for Petitioner-Appellee/Cross-Appellant.

R. Jeffrey Behm and Eric S. Miller of Sheehey Furlong & Behm, P.C., Burlington, for Respondent-Appellant/Cross-Appellee.

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

¶ 1. BURGESS, J.

Dr. David Chase appeals the decision and judgment of the Medical Practice Board concluding that he engaged in unprofessional conduct in evaluating and recommending several patients for cataract surgery. The State cross-appeals, arguing that the Board should have found that Dr. Chase's conduct included a willful violation of the statutory prohibition against filing false reports. We affirm.

¶ 2. Dr. Chase practiced general ophthalmology, with a focus on the diagnosis and surgical removal of cataracts, in the Burlington area for over thirty years. In July 2003, the State moved to summarily suspend Dr. Chase's medical license for allegedly recommending and performing cataract surgeries that were not medically necessary. At the summary-suspension hearing, the State alleged that Dr. Chase had engaged in willful misrepresentations as to recommended treatments, willful falsification of reports and records, and immoral, unprofessional, and dishonest conduct. In December 2003, the State charged Dr. Chase with 136 counts of unprofessional conduct concerning thirteen patients for whom he had recommended cataract surgery. The Board proceedings were stayed while Dr. Chase was tried on federal criminal charges, of which he was eventually acquitted.

¶ 3. Between September 2006 and February 2007, a three-member committee of the Board conducted a hearing on the merits of the charges against Dr. Chase. The State presented evidence from eleven patients and several ophthalmologists who had examined those patients. Dr. Chase testified and presented expert testimony. The committee made detailed findings and recommended that the Board find that Dr. Chase had engaged in unprofessional conduct with respect to his treatment of ten of the eleven patients. Both parties filed exceptions to the committee's report. The Board largely adopted the committee's findings and recommendations, and sanctioned Dr. Chase by imposing conditions for reinstating Dr. Chase's lapsed license.

¶ 4. The Board's determination of unprofessional conduct was based, among other things, on findings that Dr. Chase made inaccurate diagnoses, failed to engage his patients in adequate discussions about their vision before recommending surgery, and made confusing and misleading statements to his patients as to whether they should obtain a second opinion. The Board found that Dr. Chase's conduct toward each of the ten patients represented a gross failure to exercise the degree of care exercised by ordinary, careful physicians in similar situations, in violation of 26 V.S.A. § 1354(a)(22). The Board also found that Dr. Chase's conduct with respect to some of the patients amounted to a failure to practice competently in violation of 26 V.S.A. § 1354(b). The Board further found that Dr. Chase's behavior toward some of the patients amounted to dishonorable conduct under 26 V.S.A. § 1398, which allows the Board to refuse to issue licenses to persons who, among other things, have engaged in immoral or dishonorable conduct. On the other hand, the Board declined to find that Dr. Chase's unprofessional conduct was willful or that the surgeries he performed were unnecessary.

¶ 5. On appeal, Dr. Chase argues that (1) certain Board findings are clearly erroneous; (2) the Board erred in concluding that his failure to engage his patients in a collaborative process aimed at evaluating the need for surgery was unprofessional conduct; (3) the Board erred in concluding that his description of certain cataracts as "dense" was unprofessional conduct; (4) the Board erred in concluding that his statements to patients in regard to obtaining a second opinion amounted to unprofessional conduct; and (5) the Board's errors and the State's conduct effectively deprived him of his right to defend himself. In its cross-appeal, the State argues that the Board erred in interpreting the word "willful" in 26 V.S.A. § 1354(a)(8) to require an intentional rather than merely a voluntary act. Before considering these arguments, we address the applicable standard of review.

¶ 6. The Medical Practice Board is "broadly empowered" to investigate and adjudicate charges of unprofessional conduct by licensees, to issue licenses, and to suspend, revoke, or refuse to issue licenses based upon a finding of unprofessional conduct. Perry v. Med. Practice Bd., 169 Vt 399, 403, 737 A.2d 900, 903 (1999). The Legislature has so empowered the Board "`for the purpose of protecting the public.'" Id. (quoting 26 V.S.A. § 3101). Accordingly, we give considerable deference to decisions resulting from Board proceedings "in which a professional's conduct was evaluated by a group of his peers." Braun v. Bd. of Dental Exam'rs, 167 Vt. 110, 114, 702 A.2d 124, 126 (1997).^* Specifically, we defer to determinations that require the Board to apply its expertise or weigh whether certain behavior violated the standard of care pertaining to unprofessional conduct under the statute over which it has authority. See id.; Hsu, 2007 ND 9, ¶ 42, 726 N.W.2d 216 (stating that medical board's determination of physician's standard of care is technical matter entitled to appreciable deference); Jerome v. Ohio State Bd. of Emergency Med. Servs., 2002-Ohio-4511, ¶ 23, 149 Ohio App.3d 106, 776 N.E.2d 126 (noting that "court must accord due deference to the board's interpretation of the requirements of the profession").

¶ 7. Our focus, then, is on the reasonableness of the Board's decision in light of its broad discretion and authority, not on whether we would have arrived at the same result. "This Court may not substitute its own judgment for that of the Board." Braun, 167 Vt. at 114, 702 A.2d at 127; accord Hsu, 2007 ND 9, ¶ 42, 726 N.W.2d 216 (noting that "it is not a court's function to act as a super board" and that "courts do not reweigh the evidence or substitute their judgment for a duly authorized agency"). "We will affirm the Board's findings as long as they are supported by substantial evidence, and its conclusions if rationally derived from the findings and based on a correct interpretation of the law." Braun, 167 Vt. at 114, 702 A.2d at 126. "Evidence is substantial if, in looking at the whole record, . . . it is relevant and a reasonable person could accept it as adequate to support the particular conclusion." Id. (citation omitted).

¶ 8. With this standard in mind, we consider Dr. Chase's first argument—that certain Board findings are not supported by the record. The first challenged finding concerns a patient who saw Dr. Chase in 2003 believing that she needed a new prescription for glasses. Dr. Chase diagnosed her as having dense central nuclear cortical cataracts, and recommended surgery for removal of the cataracts. He required the patient to get a blood-sugar test to rule out the possibility that fluctuating blood-sugar levels may have caused transitory cataracts. Because the patient was upset with Dr. Chase's diagnosis and did not believe that she had cataracts, she did not take the blood-sugar test, but instead scheduled an eye appointment with an optometrist. As it turned out, nothing resembling a dense nuclear cortical cataract was seen or diagnosed during the patient's follow-up examinations by other eye-care professionals. At the hearing, Dr. Chase suggested that he may have observed transitory cataracts caused by fluctuating blood-sugar levels or diabetes. The Board acknowledged that transitory cataracts can be caused by fluctuating blood-sugar levels or diabetes, but found no evidence that the patient in this case had either of these conditions.

¶ 9. Dr. Chase argues that no evidence supports this finding, which effectively placed upon him the burden of proving that the patient did not have fluctuating blood-sugar levels or diabetes. We disagree. The patient testified that she was not a diabetic. One of the eye doctors who later examined the patient disagreed that fluctuating blood-sugar levels could have caused the dense cataracts described in Dr. Chase's report. The Board found simply that there was no evidentiary basis for concluding that the cataracts described by Dr. Chase were caused by the patient being a diabetic or having fluctuating blood-sugar levels. The finding is not clearly erroneous.

¶ 10. Dr. Chase also challenges the Board's findings that the testimony of the patient-witnesses was credible. According to Dr. Chase, the Board ignored inconsistencies in the witnesses' testimony and the inherent implausibility of the witnesses being able to recall specific conversations during medical exams that had taken place years earlier. We find no merit to this argument. There is nothing particularly unusual about witnesses having inaccurate or inconsistent recollections of certain details, but at the same time having clear and certain memories of conversations that made a strong impression on them. Several of the patients testified as to statements made by Dr. Chase that shocked, surprised, or frightened them, making it more likely that they would remember the statements. Moreover, the consistency of the statements among the patient-witnesses enhanced their credibility. The fact that there may have been some inconsistencies in some of the statements of the patients did not preclude the Board from finding that, in general, the patients' testimony was credible and accurate. See Omega Optical, Inc. v. Chroma Tech. Corp., 174 Vt. 10, 20, 800 A.2d 1064, 1071 (2002) (noting that determination of...