Last v. Virginia State Bd. of Medicine

• Decision Date: 28 July 1992
• Docket Number: No. 1019-91-4,1019-91-4
• Parties: Joel Irvin LAST, M.D. v. VIRGINIA STATE BOARD OF MEDICINE. Record
• Court: Virginia Court of Appeals

Page 201

421 S.E.2d 201

14 Va.App. 906

Joel Irvin LAST, M.D. v. VIRGINIA STATE BOARD OF MEDICINE.

Record No. 1019-91-4.

Court of Appeals of Virginia.

July 28, 1992.

Jeanne F. Franklin, Alexandria (John D. Grad, Grad, Logan & Klewans, on briefs), for appellant.

Lynne R. Fleming, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Jessica S. Jones, Sr. Asst. Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and MOON, JJ.

MOON, Judge.

Dr. Joel I. Last appeals a decision of the Circuit Court of Arlington County upholding the Virginia State Board of Medicine's (Board) ¹ interpretation and application of Code § 54.1-2930, a state medical licensure statute. The Board denied medical licensure by endorsement to Dr. Last because it found that his clinical rotations did not meet the requirements of Code § 54.1-2930(4), ² as amended, and Board regulation VR 465-02-01, Part IV, 4.1B(2) ³ because the rotations were not completed in American hospitals offering approved residency programs or in hospitals where students from American medical schools were receiving training. The Board interpreted Code § 54.1-2930 to deprive the Board of discretion and to require a denial of licensure by endorsement because Dr. Last's clinical training was not received in a hospital with an approved residency program. We hold that Code § 54.1-2930(4) does not give the Board discretion to waive the requirement that the clinical training be received in an approved hospital even if other factors show that an applicant has received medical training sufficient to prepare that applicant to practice medicine in the Commonwealth of Virginia.

Dr. Last graduated from an offshore medical school, the American University of the Carribean. While he was a student there, he did clinical rotations in the United States at hospitals that did not have approved residency programs. He testified before the credentials committee of the Board that neither of the hospitals where he did his rotations had residents from American medical schools. ⁴

The Board argues that, by using the word "shall" in the applicable portion of Code § 54.1-2930(4), the General Assembly imposed a mandatory requirement that licensure applicants enrolled in foreign medical schools successfully complete supervised clinical training, or "rotations," in "an approved hospital, institution or school of medicine offering an approved residency program in the specialty area for the relevant clinical training." Code § 54.1-2930(4).

The final sentence of Code § 54.1-2930(4) permits the Board to consider other factors:

The Board may also consider any other factors that reflect whether that institution and its course of instruction provide training sufficient to prepare practitioners to practice their branch of the healing arts with competency and safety in the Commonwealth.

Code § 54.1-2930(4) (emphasis added). The words "that institution" apparently refer to the institution noted in the previous sentence, the institution offering the clinical training. We interpret the last sentence of this statute to give the Board discretion to consider other factors that would indicate that the education and training received at the hospital or institution providing the clinical training were adequate to prepare an applicant-practitioner to practice in Virginia. This final sentence, however, does not change the meaning of the preceding sentence, that requires, in mandatory terms, that an applicant have completed his clinical studies in hospitals with approved residency programs.

If statutory "language is clear and unambiguous, there is no need for construction by the court; the plain meaning and intent of the enactment will be given it." Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). Unless a literal construction of a statute would result in internally conflicting provisions amounting to a "manifest absurdity," courts cannot construe a statute in a manner that would result in holding the legislature did not mean what it actually expressed. Dairyland Ins. Co. v. Sylva, 242 Va. 191, 194, 409 S.E.2d 127, 129 (1991) (citations omitted). Where a statute is unambiguous, the plain meaning is to be accepted without resort to the rules of statutory interpretation. Virginia Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 99, 353 S.E.2d 758, 760 (1987).

The main purpose of statutory construction is to determine the intention of the legislature "which, absent constitutional infirmity, must always prevail." Board of Supervisors v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897 (1989). The statute reveals the clear and unambiguous intent of the General Assembly. Dr. Last contends that to interpret the penultimate provision in the statute as imposing a mandatory requirement would place an unreasonable burden on him by requiring him to complete clinical rotations after he has completed four postgraduate training years and achieved licensure in other states. Dr. Last also argues that, had he been on notice, he could have sought to complete a satisfactory clinical program. Where a statute is unambiguous by its terms, "we are not concerned with the logic or wisdom of the legislature; we apply the statute as written." Sylva, 242 Va. at 195-96, 409 S.E.2d at 130.

In its ordinary signification, "shall" is a word of command, and is the language of command, and is the ordinary, usual, and natural word used in connection with a mandate. In this sense "shall" is inconsistent with, and excludes, the idea of discretion, and operates to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved ... unless an intent to the contrary appears; but the context ought to be very strongly persuasive before it is softened into a mere permission.

Andrews v. Sheperd, 201 Va. 412, 414, 111 S.E.2d 279, 281 (1959).

Nontechnical words in statutes are interpreted as used in their ordinary sense and generally accepted meanings. Smith v. Commonwealth, 3 Va.App. 650, 655, 353 S.E.2d 159, 161 (1987) (citations omitted).

In reviewing the Board's decision, we must consider the experience and specialized competence of the Board acting in its licensing capacity and also consider the purpose of the licensing statute under which the Board acted. See Johnston-Willis Ltd. v. Kenley, 6 Va.App. 231, 246, 369 S.E.2d 1, 9 (1988). Simply stated, the purpose of Code § 54.1-2930 is to ensure that applicants for medical licensure in the Commonwealth meet certain minimum educational requirements, including "training sufficient to prepare practitioners to practice their branch of the healing arts with competency and safety in the Commonwealth." Code § 54.1-2930(4).

We hold that the use of the word "shall" imposes a mandatory requirement of approved clinical rotations and that the last sentence of Code § 54.1-2930 does not permit the Board, in deciding whether to admit one to licensure, to consider "other factors" of an applicant's training once it determines that an applicant's supervised clinical training is insufficient.

In this case, the Board found Dr. Last's clinical rotations to be insufficient and thus it did not consider "other factors" that might support a finding that Dr. Last was adequately prepared to practice medicine competently and safely in the Commonwealth of Virginia.

It is well settled that "[w]hen the word 'shall' appears in a statute it is generally used in an imperative or mandatory sense."

Mayo v. Virginia Dep't of Commerce, 4 Va.App. 520, 523, 358 S.E.2d 759, 761 (1987). Here, we can determine no reason to give "shall" a "permissive interpretation within the context of the simple and unambiguous language" in § 54.1-2930. See id. In considering the nature, context and purpose of the act, we find that the legislature intended that the word "shall" be treated as a mandate and not as merely advisory or directory. See Huffman v. Kite, 198 Va. 196, 203, 93 S.E.2d 328, 332 (1956).

Dr. Last argues that the Board improperly applied the statute retroactively because his undergraduate and clinical training was completed prior to the enactment of the 1988 amendment to § 54.1-2930. We disagree. The Board properly applied the regulation and the statutory law, including the amending language, in effect at the time Dr. Last's application was completed in March 1990. Dr. Last conceded in his brief that the amendment was in effect before his application for licensure.

Dr. Last also argues that Code § 54.1-2935 ⁵ gives the Board discretion to permit three years of approved postgraduate training to "cure" or substitute for any applicant's unapproved undergraduate course of study. This section was not a basis for the Board's decision to deny Dr. Last licensure and this section was not at issue before the Board. ⁶

Dr. Last argues that, because there is no reasonable relation between the 1988 amendment to Code § 54.1-2930(4) and the public interest it purports to serve, the statute is arbitrary and discriminatory and a violation of his substantive due process and equal protection rights. Dr. Last has failed to demonstrate that he has a legitimate property interest ⁷ that has been affected by governmental action and he has failed to show that the actions of the Board violated procedural due process. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Here there has been no violation of procedural due process because Dr. Last has received reasonable notice and has had an opportunity to be heard and appear with counsel before the Board and has had the opportunity to testify and present evidence.

The laws of Virginia and the Board's regulations regarding eligibility for licensure gave Dr. Last an interest and a claim to practice medicine to which procedural due process requirements applied. See Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117,...