Jaffe v. State Dep't Of Health.

• Decision Date: 08 February 1949
• Citation: 135 Conn. 339,64 A.2d 330
• Court: Connecticut Supreme Court
• Parties: JAFFE v. STATE DEPARTMENT OF HEALTH.

135 Conn. 339

64 A.2d 330

JAFFE

v.STATE DEPARTMENT OF HEALTH.

Supreme Court of Errors of Connecticut.

Feb. 8, 1949.

COPYRIGHT MATERIAL OMITTED.

Appeal from Superior Court, Hartford County; King, Judge.

Proceeding wherein the State Department of Health revoked the license of Nathan B. Jaffe to practice medicine, and Nathan B. Jaffe appealed to superior court and trial was to the court. From a judgment for the department and dismissing the appeal, plaintiff appeals.

No error.

Jacob Schwolsky and Henry J. Goldberg, both of Hartford, for appellant (plaintiff).

Harry L. Brooks, Asst. Atty. Gen., and William L. Hadden, Atty. Gen., for appellee (defendant).

James W. Carpenter, of Hartford, and David Cramer, of Litchfied, amici curiae.

Before MALTBIE, C. J., and BROWN, JENNINGS, and ELLS, JJ.

MALTBIE, Chief Justice.

The question presented by this appeal is whether the state medical examining board acted properly in determining that the plaintiff's certificate of registration to practice medicine and surgery should be revoked under the provisions of §§ 475f and 476f of the 1941 Supplement to the General Statutes, Rev.1949, §§ 4358, 4359. The plaintiff appealed to the Superior Court, and from its decision sustaining the action of the board he has appealed to this court.

The original complaint against the plaintiff was made to the board by the commissioner of health and charged, on information and belief, that the plaintiff had treated Norman Dombris ‘in a fraudulent, dishonorable, unprofessional and incompetent manner.’ Notice of the complaint was given the plaintiff and he was summoned to appear before the board at a designated time for a hearing. Previous to that time plaintiff's counsel wrote an assistant attorney general, as counsel for the board, asking for a more specific statement of the charges. The assistant attorney general in reply sent a ‘Summary of Complaint.’ It stated that the plaintiff had operated on Dombris for a fissure, that the plaintiff had charged $150, ultimately reduced to $125, which Dombris paid, that the latter said that ‘his bowels did not move for 4 days,’ that he then consulted another physician and surgeon and was told that he still had the fissure, that he was taken to a hospital where he was operated upon, and that the charge made for that operation was $50 with an additional $12 for hospital visits. A hearing was held before the board. Thereafter it voted to sustain the charge that the plaintiff treated Dombris ‘in a fraudulent, dishonorable, unprofessional and incompetent manner,’ and it recommended to the state department of health that the plaintiff's certificate of registration be revoked. In making that recomendation it was acting under the provisions of § 476f of the 1941 Supplement to the General Statutes, which requires that, upon the receipt of such a recommendation, the certificate of a medical practitioner shall be revoked.

In the recommendation to the department of health, the board incorporated a statement that its action ‘was based upon certain subordinate facts adduced from the testimony at the hearing’ and detailed its conclusions as to the conduct of the plaintiff in this way: ‘Fraudulent treatment’ in that he informed or implied to Dombris that he had corrected the diseased condition of the rectum when he had not done so; ‘dishonorable treatment’ in that he had insisted on the payment of an exorbitant fee for services to be considered scarcely more than an office treatment; ‘unprofessional treatment’ in that throughout the treatment he had behaved in a manner not compatible with the established standards of medical professional conduct in this state; and ‘incompetence’ in that his background and training did not justify his claim and statement that he was a specialist in the treatment of diseases of the rectum, that he did not precede the treatment with an enema and neglected to sterilize a speculum used by him in the operation, and that he did not perform the relatively simply procedure which was indicated for the relief of the condition in question and which when later followed by a skillful and competent surgeon resulted in its eradication. When on the trial of the appeal the recommendation of the board containing these statements was offered in evidence, the plaintiff objected substantially on the ground that it was matter occurring after the hearing which was not communicated to him and of which he had no knowledge until it was offered in evidence.

The statute to which we have referred provides for the holding of hearings by the board and the making of recommendations to the state department of health but contains no requirement that the board shall make a finding of facts upon the basis of which it acted. In the similar case of appeals from zoning boards, we have said that, while a finding of the facts on which the board acted was not required by the statutes, ‘a full and complete statement in the minutes of the board's action, made with such particularity as to enable the court upon appeal to clearly understand what was done, is highly desirable.’ Grady v. Katz, 124 Conn. 525, 530, 1 A.2d 137, 139. In this instance the board, instead of including in its minutes the grounds of its decision, incorporated them in the recommendation it made. The statement was properly before the court to enable it to understand the basis of the board's action; and if the plaintiff was unduly surprised he might have asked a continuance, which, for cause shown, the trial court would no doubt have granted.

The facts stated in the findings of the board, as distinguished from its conclusions characterizing the conduct of the plaintiff, were supported by the testimony of Dombris at the hearing, and, while they were in part disputed by the plaintiff, the credibility to be accorded the two witnesses was a matter for the determination of the board. See Winzler v. United Aircraft Corporation, 132 Conn. 118, 120, 42 A.2d 655. The basic claim of the plaintiff is that the decision of the board involved certain conclusions which no evidence offered at the hearing supported but which the board reached upon the basis of its own understanding of the obligations of the plaintiff as a medical practitioner in this state. This contention is not involved in at least one of the conclusions of the board. While one might question the characterization ‘fraudulent’ as applied to the conduct of the plaintiff in stating, or at least implying, to Dombris that the diseased condition had been corrected by the operation when in fact it had not, certainly that conduct was very wrong. In Sage-Allen Co. v. Wheeler, 119 Conn. 667, 678, at page 679, 179 A. 195, 200, 98 A.L.R. 897, we said, of a statute authorizing the revocation of a license to practice optometry on the grounds of ‘immoral,’ ‘dishonorable’ and ‘unprofessional’ conduct, that these words in themselves had too uncertain a meaning to be a basis upon which a license could be revoked; and we stated: ‘The words must have been used in the light of the fundamental purpose of the statutes to regulate the profession in the public interest and they can only be construed as intending to include conduct within their fair purport which either shows that the person guilty of it is intellectually or morally incompetent to practice the profession or has committed an act or acts of a nature likely to jeopardize the interest of the public.’ See also Lieberman v. Board of Examiners in Optometry, 130 Conn. 344, 346, 34 A.2d 213. Certainly statements made by a physician or surgeon to a patient suffering from such a diseased condition as that involved in this case that it had been remedied when it had not might well be regarded by the board as conduct not only wrongful but of a nature likely to jeopardize the public. If we could conclude that the various grounds stated by the board as a basis of its action were regarded by it as each independently justifying the revocation of the certificate, we would have no need to go further in sustaining its action. But its final decision was apparently based upon the cumulative effect of the various conclusions it reached and if in others which were material it acted erroneously we could not uphold its decision.

Giving the contention of the plaintiff its widest possible scope, it comes to this: There was no evidence offered before the board that the charge made by the plaintiff was excessive, that his conduct was not compatible with ‘the standards of medical professional conduct’ in this state, that his claim to be a specialist in the treatment of diseases of the rectum was not warranted by his own testimony, and that he was negligent in not giving an enema before the operation and in not sterilizing the speculum he used. The statute before referred to, § 476f, contains provisions as to the rights of a physician or surgeon summoned before the board to answer to a complaint, and of the board as regards the hearing which is to be accorded him. ^* In Reardon v. Dental Commission, 128 Conn. 116, 20 A.2d 622, we considered somewhat similar provisions as regards a hearing to be held by the defendant before a license to practice dentistry could be suspended or revoked. In that case the charge was that the plaintiff had been guilty of improper advertising upon the building where his office was located and by means of folders and cards; and it appeared that members of the commission had, before the hearing, personally investigated the conditions at the plaintiff's office. A-164 Rec. & Briefs, back of p. 561. We said, 128 Conn. at page 119, 20 A.2d at page 623: ‘Such investigation might well lead them to approach the hearing with a preconceived idea of the guilt or innocence of the accused. He would, very likely, be placed in the position of having to overcome, by evidence he might produce, this idea. Moreover, such an investigation would be apt to result in a violation of that requirement of due process of law that one...