Jones v. Conn. Med. Examining Bd., SC 18843

CourtSupreme Court of Connecticut
Writing for the CourtZARELLA
Docket NumberSC 18843
Decision Date13 August 2013


SC 18843

Supreme Court of Connecticut

Argued March 14, 2013
Officially released August 13, 2013

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Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Vertefeuille, Js.

Elliott B. Pollack, with whom was Megan Y. Carannante, for the appellant (plaintiff).

Henry A. Salton, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Tanya Feliciano DeMattia, assistant attorney general, for the appellee (defendant).

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ZARELLA, J. The issue presented in this case is what standard of proof should be applied in physician disciplinary proceedings before the defendant, the Connecticut Medical Examining Board (board). The plaintiff, Charles Ray Jones, a physician, claims that the Appellate Court incorrectly concluded that the preponderance of the evidence standard applied in his disciplinary hearing before the board and should have concluded that the clear and convincing evidence standard of proof was applicable. The board asserts that the Appellate Court correctly determined that the preponderance of the evidence standard applied at the proceeding before it because the board is an administrative agency and, therefore, is subject to the provisions of the Uniform Administrative Procedure Act (UAPA); General Statutes § 4-166 et seq.; under which the preponderance of the evidence is the default standard of proof. We agree with the board and affirm the judgment of the Appellate Court.

In its opinion, the Appellate Court set forth the following relevant facts and procedural history. ''The plaintiff is a physician and surgeon licensed to practice medicine in Connecticut. The [board] is a state agency within the meaning of the [UAPA] . . . . On August 29, 2005, the [D]epartment [of Public Health] presented the [board] with a statement of charges against the plaintiff's license pursuant to General Statutes (Rev. to 2005) § 19a-171and General Statutes § 20-13c.2 The two counts contained therein alleged that the plaintiff violated the applicable standard of care in various respects in his treatment of two . . . children.

''As the [trial] court found . . . a three member medical hearing panel . . . [consisting] of two physicians and one layperson thereafter conducted eleven days of hearings over a fourteen month period. The [board] 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 [S and E, the two children], who were living in Nevada.3 At that time, the plaintiff diagnosed E [with] 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 [diagnosed] E [as having] possible gestational Lyme disease. The plaintiff treated both children with a continuous

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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 . . . . All tests were negative except, in the case of S, for Mycoplasma [fermentans] and a weakly positive titer for [Group A] Streptococcus . . . antibodies and, in the case of E, a positive antibody finding for Epstein-Barr Virus.

''The [board] found that the plaintiff [had] violated the standard of care [with respect to his treatment of] 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 [one] 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 non-specific, the signs and symptoms were nonspecific, and the laboratory tests were negative. In addition, in the case of S, the [board] 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 [board] 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 . . . tests obtained in April, 2005.

''As a result of these findings, the [board] ordered a reprimand, imposed fines totaling $10,000, and placed the plaintiff on probation for two years. In addition, the [board] 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 [in which he alleged] that a member of the panel . . . was biased against [him]. The [board] denied the motion in a brief ruling [primarily on the ground] that the alleged bias did not relate to the [board's] findings and conclusions . . . .

''The plaintiff subsequently commenced an administrative appeal of [the board's] decision in the Superior Court. Following a hearing, the court determined that the record lacked substantial evidence to support the [board'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 [of] E deviated from the applicable standard of care [when he prescribed] an antibiotic to a patient that he did not know and never had examined. The [trial] court affirmed the decision of the [board] in all other respects and remanded the matter to the [board] for further

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proceedings pursuant to General 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, that the trial court incorrectly had concluded that the applicable standard of proof in disciplinary proceedings before the board was the preponderance of the evidence, rather than clear and convincing evidence, and that a member of the hearing panel was biased against the plaintiff, depriving him of his due process right to an impartial tribunal.4 Id., 577. The Appellate Court disagreed and affirmed the trial court's judgment. Id., 586, 593.

The plaintiff thereafter sought certification to appeal, which we granted, limited to the following question: ''Did the Appellate Court properly conclude that the [D]epartment of [P]ublic [H]ealth was required to prove its case in proceedings before the . . . board by a preponderance of the evidence, rather than by clear and convincing evidence?'' Jones v. Connecticut Medical Examining Board, 302 Conn. 921, 28 A.3d 338 (2011).5

The plaintiff claims that the Appellate Court incorrectly determined that the present case was controlled by this court's holding in Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 821, 955 A.2d 15 (2008) (Goldstar). Specifically, the plaintiff maintains that, although the UAPA applied in both Goldstar and the present case, the nature of the hearing and the interest at stake in the present case requires the application of a heightened standard of proof. The board, by contrast, contends that the standard of proof outlined in Goldstar is appropriate and should not be disturbed when, as in the present case, there is no indication that the legislature intended to impose a heightened standard of proof beyond...

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