Jones v. Conn. Med. Examining Bd..

Decision Date21 June 2011
Docket NumberNo. 31675.,31675.
Citation129 Conn.App. 575,19 A.3d 1264
PartiesCharles Ray JONES, M.D.v.CONNECTICUT MEDICAL EXAMINING BOARD.
CourtConnecticut Court of Appeals

OPINION TEXT STARTS HERE

Elliot B. Pollack, with whom were Bonnie L. Heiple, and, on the brief, Michael Kurs, Hartford, for the appellant (plaintiff).Tanya Feliciano DeMattia, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellee (defendant).DiPENTIMA, C. J., and BISHOP and GRUENDEL, Js.GRUENDEL, J.

The plaintiff, Charles Ray Jones, M.D., appeals from the judgment of the Superior Court sustaining in part his appeal from the decision of the defendant, the Connecticut medical examining board. In this appeal, the plaintiff contends that (1) the defendant violated his right to due process by disciplining him on a basis that was not set forth in the statement of charges presented by the department of public health (department), (2) the bias of a member of the medical hearing panel deprived him of his due process right to an impartial tribunal and (3) the court improperly concluded that the preponderance of the evidence standard of proof governs revocation proceedings before the defendant. We affirm the judgment of the Superior Court.

The record reveals the following relevant facts. The plaintiff is a physician and surgeon licensed to practice medicine in Connecticut. The defendant is a state agency within the meaning of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq. On August 29, 2005, the department presented the defendant with a statement of charges against the plaintiff's license pursuant to General Statutes (Rev. to 2005) § 19a–17 1 and General Statutes § 20–13c.2578 The two counts contained therein alleged that the plaintiff violated the applicable standard of care in various respects in his treatment of two minor children.3

As the court found in its memorandum of decision, a three member medical hearing panel; see General Statutes (Rev. to 2005) § 20–8a (c); comprised of two physicians and one layperson thereafter “conducted eleven days of hearings over a fourteen month period. The [defendant] then reviewed the panel's proposed decision and, in a December 18, 2007 memorandum of decision, made the following findings. The plaintiff holds a Connecticut physician and surgeon license. On or about December 17, 2003, the plaintiff consulted by telephone with the mother of minor children S and E, who were living in Nevada. At that time, the plaintiff diagnosed E as having gestational Lyme disease. The plaintiff took several other actions prior to first examining the children on May 21, 2004. On January 5, 2004, the plaintiff prescribed Doxycycline for E's Lyme disease. On March 18, 2004, the plaintiff prescribed Zithromax for S. On March 26, 2004, the plaintiff made recommendations to the principal of S's school for S's education based on a provisional diagnosis of late stage Lyme disease.

“At the May 21, 2004 examination, the plaintiff wrote a diagnosis for E of possible gestational Lyme disease. The plaintiff treated both children with a continuous prescription of Amoxicillin until March, 2005, and then continuously with Omnicef. After the May 21, 2004 exam[ination], the plaintiff did not examine the children until April 11, 2005, nor did he make any arrangements for another physician to monitor their medication. At the April 11, 2005 examination, the plaintiff ordered a series of tests for Lyme disease, including the Western Blot tests, and other pathogens. All tests were negative except, in the case of S, for ‘Mycoplasma fermetans and a weakly positive titer for Streptococcus A antibodies' and, in the case of E, a positive antibody finding for Epstein–Barr Virus.

“The [defendant] found that the plaintiff violated the standard of care for both children in that he (1) prescribed an antibiotic to a patient he did not know and had never examined; (2) prescribed antibiotics for nearly a year without repeat examinations and without any arrangement with another physician to monitor the patient for the side effects of long-term antibiotic therapy; and (3) diagnosed a disease in both children when the exposure risk was extremely low, the medical history was nonspecific, the signs and symptoms were nonspecific, and the laboratory tests were negative. In addition, in the case of S, the [defendant] found that the plaintiff violated the standard of care by making an educational recommendation for a child he did not know and had never examined. The [defendant] also found, without specifying whether it was a violation of the standard of care, that the plaintiff failed to reconsider the diagnosis of Lyme disease for S and E in light of the negative Western Blot tests obtained in April, 2005.

“As a result of these findings, the [defendant] ordered a reprimand, imposed fines totaling $10,000, and placed the plaintiff on probation for two years. In addition, the [defendant] required the appointment of a physician monitor to conduct regular reviews of the plaintiff's patient records and meetings with the plaintiff.... On January 2, 2008, the plaintiff filed a motion for reconsideration alleging that a member of the panel ... John Senechal [a physician], was biased against the plaintiff. The [defendant] denied the motion in a brief ruling stating principally that the alleged bias did not relate to the findings and conclusions in the memorandum of decision.” (Citation omitted.)

The plaintiff subsequently commenced an administrative appeal of that decision in the Superior Court.4 Following a hearing, the court determined that the record lacked substantial evidence to support the defendant's findings that the plaintiff diagnosed E with gestational Lyme disease during a telephone consultation on December 17, 2003, and that the plaintiff's care for E deviated from the applicable standard of care in prescribing an antibiotic to a patient that he did not know and never had examined. The court affirmed the decision of the defendant in all other respects and remanded the matter to the defendant for further proceedings pursuant to General Statutes § 4–183(j). From that judgment, the plaintiff appeals.5

I

The plaintiff first claims that the defendant violated his right to due process by disciplining him on a basis that was not set forth in the statement of charges presented to it by the department. We disagree.

The standard of review governing administrative agency rulings is well established. “Judicial review of an administrative decision is a creature of statute ... and [§ 4–183(j) ] permits modification or reversal of an agency's decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error or law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.... We have stated that not all procedural irregularities require a reviewing court to set aside an administrative decision.... The complaining party has the burden of demonstrating that its substantial rights were prejudiced by the error.” (Citations omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 787–88, 855 A.2d 174 (2004).

A

Before addressing the merits of the plaintiff's due process claim, we first must ascertain the analytical basis thereof. In his appellate brief, the plaintiff identifies no statutory basis underlying the claim and instead devotes his discussion to decisional law exclusively, whereas the defendant maintains that the pertinent notice requirements governing the claim are those contained in General Statutes § 4–177(b), rather than General Statutes § 4–182(c).6 On the record before us, we disagree with the defendant.

Our Supreme Court has emphasized “the difference between the notice requirements pertaining to the issuance of a license, which mandate only ‘a short and plain statement of the matters asserted’; General Statutes § 4–177(b)(4); and the notice requirements relating to the revocation of a license, which mandate ‘notice ... of facts or conduct’ warranting revocation of the license. General Statutes § 4–182(c).” Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. at 810, 855 A.2d 174. Procedurally, notice under § 4–182(c) is a precursor to the subsequent notice required by § 4–177(b). Section 4–182(c) requires an agency to give a licensee, prior to the institution of agency proceedings, written notice of conduct warranting the revocation of its license and an opportunity to show compliance with all of the legal requirements for the retention of the license.” (Emphasis added.) Id., at 801, 855 A.2d 174. By contrast, § 4–177 requires an agency to “give the licensee notice of a formal revocation proceeding....” Id., at 812, 855 A.2d 174. Specifically, § 4–177(b) requires that notice of a contested hearing include the following: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted.” As this court recently held, “notice of the formal revocation hearings, after institution of the agency proceedings, must comply with § 4–177, not § 4–182(c).” (Emphasis in original.) Spitz v. Board of Examiners of Psychologists, 127 Conn.App. 108, 116 n. 11, 12 A.3d 1080 (2011).

The critical question, then, is precisely what...

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13 cases
  • Jones v. Conn. Med. Examining Bd.
    • United States
    • Supreme Court of Connecticut
    • August 13, 2013
    ...Statutes § 4–183(j).” (Citation omitted; footnotes altered; internal quotation marks omitted.) Jones v. Connecticut Medical Examining Board, 129 Conn.App. 575, 577–80, 19 A.3d 1264 (2011). The plaintiff appealed to the Appellate Court from the trial court's judgment, claiming, inter alia, t......
  • Fin. Consulting, LLC v. Comm'r of Ins.
    • United States
    • Supreme Court of Connecticut
    • December 30, 2014
    ...license revocation process governed by § 4–177(b).19 See Id., at 799–803, 855 A.2d 174 ; Jones v. Connecticut Medical Examining Board, 129 Conn.App. 575, 582, 19 A.3d 1264 (2011) (“notice under § 4–182 [c] is a precursor to the subsequent notice required by § 4–177 [b]”), aff'd, 309 Conn. 7......
  • Fin. Consulting, LLC v. Comm'r of Ins.
    • United States
    • Supreme Court of Connecticut
    • December 30, 2014
    ...a precursor to that formal license revocation process governed by § 4-177 (b).19 See id., 799-803; Jones v. Connecticut Medical Examining Board, 129 Conn. App. 575, 582, 19 A.3d 1264 (2011) ("notice under § 4-182 [c] is a precursor to the subsequent notice required by § 4-177 [b]"), aff'd, ......
  • Jones v. Conn. Med. Examining Bd.
    • United States
    • Supreme Court of Connecticut
    • August 13, 2013
    ...Statutes § 4-183 (j).'' (Citation omitted; footnotes altered; internal quotation marks omitted.) Jones v. Connecticut Medical Examining Board, 129 Conn. App. 575, 577-80, 19 A.3d 1264 (2011). The plaintiff appealed to the Appellate Court from the trial court's judgment, claiming, inter alia......
  • Request a trial to view additional results

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