In re Miller

• Citation: 2009 VT 112,989 A.2d 982
• Decision Date: 06 November 2009
• Docket Number: No. 09-222.,09-222.
• Parties: In re Mitchell R. MILLER, MD.
• Court: Vermont Supreme Court

989 A.2d 982

2009 VT 112

In re Mitchell R. MILLER, MD.

No. 09-222.

Supreme Court of Vermont.

November 6, 2009.

Debra L. Bouffard and Eric S. Miller of Sheehey Furlong & Behm P.C., Burlington, for Appellant.

William H. Sorrell, Attorney General, and James S. Arisman, Assistant Attorney General, Montpelier, for Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.

¶ 1. Mitchell R. Miller, M.D. appeals from a decision of the Medical Practice Board to suspend his medical license pending a ruling on the merits on multiple charges of unprofessional conduct. Dr. Miller contends: (1) the statutory provision authorizing summary suspensions, 3 V.S.A. § 814(c), is unconstitutional on its face because it fails to provide for a pre-suspension hearing or a prompt and meaningful post-suspension hearing; (2) the statute as applied failed to comport with due process because the post-suspension hearing afforded no meaningful opportunity to present evidence and contest the charges, the Board failed to apply a clear-and-convincing evidence standard of proof, and the Board relied on inadmissible hearsay evidence; and (3) the evidence failed to support the finding of unprofessional conduct or demonstrate an imminent threat of harm justifying a wholesale suspension of his license. We affirm.

¶ 2. On March 31, 2009, the State moved to summarily suspend Dr. Miller's medical license based on a simultaneously-filed specification of charges containing fifty-five counts of alleged unprofessional conduct, a State investigator's affidavit, and an exhibit consisting of Dr. Miller's 2004 "letter of assurance" to the Board. Based on a review of the medical records of ten patients, pharmacy records, and several interviews, the State alleged, in summary, that Dr. Miller had repeatedly abused his authority by prescribing excessive quantities of powerful narcotics for patients without noting and copying the prescriptions in patients' charts, conducting adequate medical histories and examinations, documenting the physical symptoms and medical bases for the prescriptions, considering indications of drug dependency and adverse side effects from the large quantities of narcotics prescribed, or accounting for the risk of drug abuse and diversion, all in violation of acceptable standards of professional conduct.

¶ 3. In addition, the charges alleged that Dr. Miller had altered patients' charts, failed to produce medical records requested by the Board, made material misrepresentations to the Board, and violated numerous provisions of an earlier letter of assurance to the Board. The letter was the product of a State investigation, dating from 2000, into pharmacist reports concerning Dr. Miller's prescriptions of large quantities of narcotics. The investigation remained open, and in 2004 resulted in a detailed letter of assurance from Dr. Miller agreeing to several conditions, including promises to consult regularly with a New Hampshire-based anesthesiologist concerning the use of narcotics to treat pain; to accept no new patients likely to require treatment for chronic pain; to prescribe no Schedule II drugs for periods longer than fourteen days; to scrupulously maintain patient charts, documenting their diagnosis, condition, and the rationale for prescribing controlled substances; to retain copies of all prescriptions for Schedule II drugs; to require all patients being treated for chronic pain to enter into written agreements governing their receipt and use of prescriptions for controlled substances; and to promptly comply with all Board requests for records.

¶ 4. On April 1, 2009, at its regularly scheduled monthly meeting, the Board convened an emergency hearing to consider the interim-suspension motion. The State was represented at the hearing, and the Board heard testimony from the State's investigator. Although a copy of the motion was mailed to Dr. Miller he was not afforded prior notice of the hearing or an opportunity to appear and rebut the charges. On April 3, 2009, the Board issued a decision and order, finding, inter alia, that the allegations, "if proven," would support a finding that Dr. Miller had engaged in unprofessional conduct; that the record revealed a history, dating from 2000, of abuses and violations in Dr. Miller's prescribing practices that had continued to the present, suggesting that further assurances could not be relied on; that these practices threatened the health and welfare of his patients and posed a risk to the public; and that the public health, safety, and welfare required an immediate suspension of Dr. Miller's license. The Board indicated that a hearing on the merits would be scheduled "as soon as practicable."

¶ 5. Four weeks later, Dr. Miller filed with the Board a motion to reconsider and reinstate his license. Dr. Miller claimed that there was no emergency requiring the summary suspension of his license, that due process required a contested pre-suspension hearing or, at a minimum, a prompt post-suspension hearing, and that any Board action must be narrowly tailored to address the alleged harm, suggesting that the Board allow him "to continue his practice on the condition that he discontinue treating the[] [ten] patients" specified in the charges. The Board, in response, issued a procedural order indicating that it would hold a hearing at its next regularly scheduled meeting in mid-May 2009, where it would take evidence and testimony from the State's investigator and Dr. Miller limited to the matters and timeframes set forth in the investigator's original and supplemental affidavits. At the hearing, Dr. Miller's attorney cross-examined the investigator at length concerning his investigation, affidavits, communications with Dr. Miller and two of his patients, and pharmacy records. Dr. Miller submitted prefiled testimony, testified in person, was cross-examined by the State, and responded to questions from Board members. The Board declined to admit letters on Dr. Miller's behalf from two doctors and a nurse who had worked with him in the prison system, as well as a letter of endorsement from the administrator of a skilled nursing facility where he had consulted, ruling that they were outside the scope of the hearing.

¶ 6. On June 5, 2009, the Board issued a second decision and order, denying the motion to reconsider and continuing the suspension pending a resolution on the merits. The Board's decision revisited the State's charges and the issues in their entirety, setting forth extensive findings and conclusions based on the evidence previously submitted as well as that adduced at the hearing. Among its many findings were the following. Although Dr. Miller had been phasing out his private practice and was employed fulltime with Prison Health Services, a private corporation providing medical care to Vermont prisons, he had continued to treat at least seven patients in his private practice. Of these, only two had written drug agreements, and both were dated and did not reference the medications actually being prescribed. Dr. Miller met his patients in a bare office, with no nursing or administrative assistance. Contrary to his claim that only one of his remaining patients was receiving pain medication, the evidence showed that Dr. Miller was prescribing pain medication to at least five patients, including narcotics to three, and a scheduled opiate substitute to another. Dr. Miller routinely wrote narcotics prescriptions for patients whom he did not regularly examine; wrote multiple narcotics prescriptions for patients weeks in advance, in quantities that exceeded the amount to be taken and, when questioned at the hearing, offered no rationale or explanation for the discrepancy. At least two patients in question had reported symptoms of drug dependence.

¶ 7. Based on the evidence, the Board found "that Dr. Miller's treatment of the patients in his private practice during the last month before the suspension of his license did not meet the standards of care" required by the Board's policy for the use of controlled substances; that "the evidence of record, in conjunction with the allegations" in the specification of charges, demonstrated unprofessional conduct; and further that "[t]he evidence adduced at the hearing by both parties confirmed the Board's [earlier] finding as to the imperative need for emergency action" based on the likelihood that Dr. Miller's patients would continue to receive substandard care to the detriment of their health and welfare, and that overprescribed narcotics would find their way to the black market, thus threatening the community at large. The Board also implicitly rejected Dr. Miller's alternative proposal to voluntarily cease treating the ten patients in question, concluding that his "grossly unprofessional and irresponsible treatment of this group of patients" cast doubt on his ability "to care for any patients at all." Accordingly, the Board directed that the suspension would remain in force pending further proceedings. Pursuant to the Board's order, the parties filed a stipulated discovery schedule the following week, providing for all discovery to be completed by late November 2009, and a hearing to be held in mid-December. This appeal followed.¹

¶ 8. Dr. Miller asserts several due-process violations which we address in turn. First, he contends that the provision of the Administrative Procedure Act authorizing the summary suspension of a license, 3 V.S.A. § 814(c), is unconstitutional on its face because it fails expressly to provide for either a contested pre-suspension hearing or a prompt and meaningful post-suspension hearing on the propriety of the emergency action.² The statute prohibits the "revocation, suspension, annulment, or withdrawal of any license" absent notice to the licensee of the facts which warrant the intended action and an opportunity to show "compliance with all lawful requirements for the retention of...