Larsen v. Commission on Medical Competency

• Decision Date: 03 November 1998
• Docket Number: No. 980100,980100
• Citation: 1998 ND 193,585 N.W.2d 801
• Parties: Paul D. LARSEN, Appellant, v. COMMISSION ON MEDICAL COMPETENCY and North Dakota Board of Medical Examiners, Appellees. Civil
• Court: North Dakota Supreme Court

Page 801

585 N.W.2d 801

1998 ND 193

Paul D. LARSEN, Appellant, v. COMMISSION ON MEDICAL COMPETENCY and North Dakota Board of Medical Examiners, Appellees.

Civil No. 980100.

Supreme Court of North Dakota.

Nov. 3, 1998.

Jay H. Fiedler of Pearson, Christensen, Larivee, Clapp, Fiedler, Fischer & Jensen, Grand Forks, for appellant.

John M. Olson, Special Assistant Attorney General, Bismarck, for appellees.

SANDSTROM, Justice.

¶1 Paul Larsen appealed from a judgment affirming the North Dakota Board of Medical Examiners' decision to revoke his license to practice medicine in the State of North Dakota. We conclude the Board's decision did not violate administrative and statutory procedures and did not deprive Larsen of due process. We also conclude the Board's decision is supported by a preponderance of the evidence. We therefore affirm.

I

¶2 Larsen was a licensed physician in North Dakota for twenty-four years. He began treating a female patient in June of 1993, and diagnosed the patient as suffering from bipolar disorder. Larsen began treating the patient with various medications. Eventually, Larsen and the patient began a consensual sexual relationship, although they disagree about when it began. The patient testified the sexual relationship started in March 1994, but Larsen testified it began in late summer 1994.

¶3 Larsen wrote the patient a letter, dated April 21, 1994, recommending she start seeing another physician for treatment. Despite the recommendation in his letter, Larsen saw the patient in the clinic on September 12, 1994. Larsen sent another letter, dated September 27, 1994, stating "I can no longer function in any capacity as your physician and must insist that you find other health care immediately."

¶4 In September 1996, as the result of a formal grievance by the patient, the Commission on Medical Competency, under N.D.C.C. § 43-17-31(6), filed a complaint with the Board alleging Larsen "engaged in the performance of dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public ... and/or ... engaged in sexual abuse, misconduct, or exploitation related to the practice of medicine ..." in violation of N.D.C.C. §§ 43-17-31(6), (16). The Commission's charges were a result of Larsen's sexual relationship with the patient.

[p 5] The Commission also charged Larsen "engaged in the use of a false, fraudulent, or forged statement or document, or the use of a fraudulent, deceitful, dishonest, or immoral practice, in connection with the physician licensing requirements" under N.D.C.C. § 43-17-31(1). More specifically, the Commission maintained "[i]n completing his application for renewal of his North Dakota Medical License, [Larsen] falsely answered 'no' to the question of whether, since his last renewal, he received treatment for any mental illness, when in fact, [Larsen] received treatment" for a mental illness. As a result of the charges, the Commission, under N.D.C.C § 43-17-30.1(1), requested revocation of Larsen's license to practice medicine in North Dakota.

¶6 The Commission's complaint requested revocation of Larsen's license to practice medicine, based on either or both the specified grounds.

¶7 Following three prehearing conferences with the administrative law judge ("ALJ"), a hearing was rescheduled for August 5, 1997. During a telephone conference on August 4, 1997, Larsen's counsel indicated neither he nor Larsen would be at the hearing to contest the complaint.

¶8 On August 5, 1997, the administrative hearing was held in Bismarck. The ALJ took official notice of a letter to the Board indicating Larsen was resigning his license effective midnight, August 4, 1997. Throughout the letter of resignation, Larsen continued to deny the charges detailed in the complaint. The ALJ noted under N.D.C.C. § 28-32-08.4 and N.D.C.C. § 54-57-03(3), the Board could have proceeded against Larsen in default, "but the Commission elected to present a prima facie case."

¶9 Based on the evidence presented at the hearing and the oral argument of the Commission's attorney, the ALJ released his recommended findings of fact, conclusions of law, and an order on August 7, 1997. The ALJ concluded "[t]he greater weight of the evidence shows that Larsen violated the provisions of N.D.C.C. ch. 43-17 as indicated in the findings of fact and conclusions of law." After recognizing the Commission's recommendation, the ALJ agreed with the Commission and recommended revocation of Larsen's license to practice medicine in North Dakota.

¶10 On August 19, 1997, the Board of Medical Examiners met to discuss solely what action to take against Larsen. The Board adopted the ALJ's recommendation, and Larsen's license to practice medicine in North Dakota was revoked. The Commission, however, indicated Larsen would not be precluded from demonstrating rehabilitation to enable future North Dakota medical licensure.

¶11 In September 1997, Larsen appealed the Board's decision to the district court. Larsen's motion for leave to offer additional exhibits under N.D.C.C. § 28-32-18 was denied because of "no showing of reasonable grounds for failure to offer the evidence in the hearing." The district court issued a memorandum opinion affirming the Board's decision to revoke Larsen's license, and judgment was entered accordingly.

¶12 Larsen appealed from the judgment of the South Central Judicial District Court and the order denying his motion for leave to offer additional exhibits under N.D.C.C. § 28-32-18. The judgment was filed January 27, 1998, and the notice of appeal was filed March 31, 1998, within the sixty-day requirement. N.D.R.App.P. 4(a). The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶13 Larsen raises nine issues on appeal: (1) the ALJ's conclusion his sexual relationship with a patient was "sexual abuse, misconduct, or exploitation related to [his] practice of medicine" was not supported by any finding of fact; (2) the ALJ's conclusion he fraudulently falsified or forged statements related to his medical licensing was not supported by any finding of fact; (3) he was denied due process by failure of the Commission's counsel to submit exculpatory evidence; (4) the Board's decision to revoke his license was unsupported by the ALJ's findings of facts and conclusions of law; (5) he was denied due process by the Board's failure to deliberate; (6) he was denied due process because revocation of his license was excessive as a matter of law; (7) he was denied statutory due process because the Board proceeded on a default basis without complying with N.D.C.C. § 28-32-08.4; (8) the Board lacked authority to revoke his license; and (9) the district court erred by denying his motion for leave to offer additional exhibits under N.D.C.C. § 28-32-18.

III

¶14 On appeal from decisions by administrative agencies, we review the agency's decision, not the district court's. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, p 10, 562 N.W.2d 878 (citing S.N.S. v. North Dakota Dep't of Human Serv., 474 N.W.2d 717, 719 (N.D.1991)). Under N.D.C.C. § 28-32-19, we affirm the Board's order unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. Provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

Our standard of review is the same as the district court's review under N.D.C.C. § 28-32-21. In reviewing the factual basis for an administrative agency's decision, there are four critical issues: (1) whether the findings of fact are supported by a preponderance of the evidence; (2) whether the conclusions of law are sustained by the findings of fact; (3) whether the agency's decision is supported by the conclusions of law; and (4) whether decision is in accordance with the law. See, e.g., Baer v. Director, North Dakota Dep't of Transp., 1997 ND 222, p 7, 571 N.W.2d 829 (citations omitted). "In determining whether an agency's findings of fact are supported by a preponderance of the evidence, the standard of review is whether a reasoning mind could reasonably have determined the factual conclusions were supported by the weight of the evidence." Rudolph v. North Dakota Dep't of Transp. Dir., 539 N.W.2d 63, 66 (N.D.1995) (citing Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)). The findings of fact must be adequate to enable a reviewing court to ascertain the basis of the agency's decision. Pleinis v. North Dakota Workers Comp. Bureau, 472 N.W.2d 459, 462 (N.D.1991) (citing Walter v. North Dakota State Highway Comm'r, 391 N.W.2d 155 (N.D.1986); Matter of Boschee, 347 N.W.2d 331 (N.D.1984)).

A

¶15 Larsen argues "[s]ignificantly, the Administrative Law Judge made no factual finding that the sexual relationship was abusive or exploitative. As significantly, the Administrative Law Judge made no factual finding that the relationship was related to Dr. Larsen's practice of medicine." We conclude the ALJ's conclusion of law was supported by findings of fact.

¶16 The Commission's complaint alleged Larsen violated N.D.C.C. § 43-17-31(6) and N.D.C.C. § 43-17-31(16). A physician may be disciplined under N.D.C.C. § 43-17-31(6) for "[t]he performance of any dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public" and under N.D.C.C. § 43-17-31(16) for "[s]exual abuse, misconduct, or exploitation related to the licensee's practice of medicine." After considering the evidence and the oral arguments of the Commission's counsel during the hearing, the ALJ's four findings of fact...