Jutkowitz v. Department of Health Services

• Decision Date: 13 August 1991
• Docket Number: No. 14141,14141
• Citation: 220 Conn. 86,596 A.2d 374
• Court: Connecticut Supreme Court
• Parties: Jesse JUTKOWITZ v. DEPARTMENT OF HEALTH SERVICES et al.

Page 374

596 A.2d 374

220 Conn. 86

Jesse JUTKOWITZ v. DEPARTMENT OF HEALTH SERVICES et al.

No. 14141.

Supreme Court of Connecticut.

Argued April 23, 1991.

Decided Aug. 13, 1991.

Hanon W. Russell, Orange, for appellant-appellee (plaintiff).

Henry A. Salton, Asst. Atty. Gen., with whom were Paul J. Lahey, Asst. Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Richard J. Lynch, Asst. Atty. Gen., for appellees-appellants (defendants).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and BORDEN, JJ.

CALLAHAN, Justice.

This case is an administrative appeal from the decision of the defendant state board of chiropractic examiners (board) to discipline the plaintiff chiropractor, Jesse Jutkowitz, for allegedly improper conduct in the treatment of certain patients. The disciplinary proceeding arose out of a complaint filed by the named defendant, the department of health services (department). As a result of that proceeding, the plaintiff's chiropractic license was suspended for one year, he was ordered to pay fines totalling $5000 and he was placed on probationary status for a period of three years. The plaintiff, a chiropractor licensed by the state of Connecticut, filed an administrative appeal in the Superior Court. The trial court sustained the appeal as to certain of the counts filed against the plaintiff and dismissed the appeal as to the other counts. After the plaintiff filed an appeal and the defendants filed a cross appeal in the Appellate Court, we transferred the matter to this court pursuant to Practice Book § 4023. We now affirm the judgment of the trial court.

The material facts are not in dispute. After complaints concerning the plaintiff had been made to the department, it brought a disciplinary action in twenty-four counts. The department alleged that, in the course of providing chiropractic services, the plaintiff had engaged in illegal and incompetent conduct and material deception in violation of General Statutes § 20-29. ¹ The conduct at issue involved the treatment of three patients during 1982 and 1983. The board charged that the plaintiff had engaged in incompetent practice in diagnosing Mark Spivey and in advising him that his scoliosis was caused by emotional or psychological factors. The board also claimed that the plaintiff had engaged in illegal and incompetent conduct and material deception in the treatment of Cheryl Benham and her husband, Richard Benham. Those allegations arose out of certain representations made by the plaintiff and out of his use of x-rays. The charges also concerned the plaintiff's use of a procedure known as the coccygeal-meningeal manipulation, which involves a manual intra-rectal examination and manipulation. ² The plaintiff performed this procedure on Cheryl Benham on several occasions and advised her that proper chiropractic adjustment required this procedure. In addition, after learning that Cheryl Benham would be taking a trip by plane, the plaintiff instructed her to perform this procedure on herself during the flight. The plaintiff also advised Richard Benham of the necessity of this procedure, but he did not agree to it.

When the hearings on this matter were held by the board in 1985 and 1986, General Statutes (Rev. to 1985) § 20-25 ³ required that the board consist of two chiropractors and one public member. One of the chiropractic members, Lewis Labbadia, recused himself from this matter because he had filed a complaint with the department about the plaintiff's conduct. Because there was no public member of the board at the time of the hearings, the hearings were conducted solely by Marino Passero, the other chiropractor on the board at that time. After the hearings, Mary Coman was appointed as the public member of the board. She read the record of the hearings and discussed the matter with Passero, and the board subsequently issued its decision, which was signed by Passero and Coman.

During the hearings, the department withdrew three of the counts. The board dismissed or transferred to another state agency eight of the remaining counts, while it found in the department's favor on the other thirteen counts. The plaintiff then appealed that decision to the Superior Court pursuant to General Statutes § 4-183. After granting the plaintiff's motions to present evidence outside the record and to add to the record, the trial court sustained the plaintiff's appeal as to seven of the counts and dismissed the appeal as to the five other counts. ⁴ Each of those five counts concerns either the plaintiff's use of the coccygeal-meningeal manipulation or statements that he made regarding that procedure.

On appeal, the plaintiff claims that the trial court incorrectly concluded that: (1) count twenty of the department's complaint adequately informed the plaintiff of the nature of the charge in that count; (2) the plaintiff waived the right to claim that the board's decision was not rendered on a timely basis because he did not avail himself of the remedy available under General Statutes (Rev. to 1985) § 4-180(a) and (b); (3) the plaintiff received a fair hearing and was not denied his right to due process of law; (4) Passero's membership on the board was proper despite the fact that at the time of the hearings he was an officer of the Council of Chiropractic Education; (5) the board properly interpreted General Statutes § 20-28(b) as defining limitations on chiropractic practice; (6) the board properly admitted into evidence an exhibit concerning schools and colleges of chiropractic approved by the board; and (7) the plaintiff had abandoned one of his claims by failing to brief that issue. ⁵ In their cross appeal, the defendants contend that the trial court improperly: (1) concluded that expert testimony was required to support some of the counts; and (2) allowed the plaintiff to conduct discovery after the hearing before the board and supplement the record of those proceedings.

I

The plaintiff claims that the twentieth count did not adequately inform him of the nature of the charge against him. ⁶ After the plaintiff filed a written request that the department state the basis for its claim that the coccygeal-meningeal manipulation was improperly prescribed and not clinically indicated, the department denied this request on the ground that there is no provision for discovery under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. ⁷ The trial court rejected the plaintiff's contention that his rights under the federal due process clause and under the UAPA were denied because of the alleged deficiency in the notice. The trial court also rejected the plaintiff's claim that the department's refusal to respond to his request for clarification violated General Statutes (Rev. to 1985) § 4-177(b). ⁸ We agree with the trial court's conclusion that the charge was adequately stated.

General Statutes § 4-182(c) provides that "[n]o revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action...." In Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 534, 560 A.2d 403 (1989), we noted that the notice requirements in § 4-182(c) are stricter than those in § 4-177(b) because the former proceeding involves a " 'more compelling private interest.' " When the potential result of an agency proceeding is the suspension of a license upon which a person depends in earning his or her living, " 'due process requires that the notice given must advise the party of the facts or conduct alleged to be in violation of the law and must fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law.' " Id., at 535, 560 A.2d 403, quoting Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 47, 327 A.2d 588 (1973).

The language in the twentieth count informed the plaintiff that this charge arose from his prescribing the coccygeal-meningeal manipulation for Richard Benham. He was therefore fairly apprised of the facts or conduct that served as the basis for the department's charge. In addition, the count informed him that his conduct was alleged to be in violation of General Statutes § 20-29. His claim, in essence, is that he was never given notice of the legal theory under which those facts gave rise to the statutory violation. In its ruling on the twentieth count, the board indicated that the basis for its conclusion that the plaintiff had violated § 20-29 by prescribing the coccygeal-meningeal manipulation for Richard Benham was its conclusion that the use of this technique constituted incompetent practice. Although we note that the legal basis for the allegation in the twentieth count could have been expressed in clearer terms, we conclude that the notice provided was sufficient to satisfy the requirements of due process. ⁹

Even if we were to conclude that the twentieth count failed to provide adequate notice to the plaintiff, our disposition of this issue would be the same because the plaintiff did not suffer material prejudice as a result of this alleged procedural deficiency. See General Statutes (Rev. to 1985) § 4-183(g); Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985). The plaintiff introduced evidence to attempt to show that the coccygeal-meningeal manipulation was taught at a chiropractic college and that the use or prescription of this procedure would not constitute incompetent practice. ¹⁰ The plaintiff, therefore, cannot now complain that his defense was prejudiced by any alleged deficiency in notice.

II

The plaintiff next argues that the board's decision was void because it was not rendered within ninety days, as required by General Statutes (Rev. to 1985) § 4-180(a). ¹¹ The defendants concede that the board did not comply with the...