Lewis v. D. of C. Comm. On Licensure, Etc.

• Decision Date: 27 April 1978
• Docket Number: No. 11821.,11821.
• Citation: 385 A.2d 1148
• Parties: Frederick Douglass LEWIS, Petitioner, v. DISTRICT OF COLUMBIA COMMISSION ON LICENSURE TO PRACTICE the HEALING ART, Respondent.
• Court: D.C. Court of Appeals

385 A.2d 1148

Frederick Douglass LEWIS, Petitioner, v. DISTRICT OF COLUMBIA COMMISSION ON LICENSURE TO PRACTICE the HEALING ART, Respondent.

No. 11821.

District of Columbia Court of Appeals.

Argued November 9, 1977.

Decided April 27, 1978.

Justin D. Simon, Washington, D. C. with whom Seymour Glanzer, Washington, D. C., was on the brief, for petitioner.

Margaret L. Hines, Asst. Corp. Counsel, Washington, D. C. with whom Louis P. Robbins, Principal Deputy Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, were on the brief, for respondent. John R. Risher, Jr., Corp. Counsel, Washington, D. C., entered an appearance for respondent.

Before NEWMAN, Chief Judge, and KELLY and MACK, Associate Judges.

NEWMAN, Chief Judge:

Petitioner, Dr. Lewis, at all times relevant hereto, was a licensed physician authorized to practice medicine in the District of Columbia and recognized as an expert in acupuncture.¹ He petitions for review seeking reversal of an order of the Commission on Licensure to Practice the Healing Art in the District of Columbia (Commission) suspending his license to practice medicine for three years. Petitioner raises two major issues: first, that the Commission's order of suspension denied him due process of law; and second, that the Commission's findings of fact and conclusions of law are not supported by and in accordance with reliable, probative, and substantial evidence. We agree with petitioner's first contention; thus, we do not reach the second. We reverse.

I

Dr. Lewis opened an office for the private practice of medicine in the District of Columbia in June 1974, with a practice primarily devoted to the use of acupuncture as a treatment mode. He operated this office on a full-time basis for approximately six months. In December 1974, Dr. Lewis accepted full-time employment with the District of Columbia government and, for approximately the next twelve months, his private office was open only during evening hours and on Saturdays. During these hours Dr. Lewis was always in attendance. Stephen Kim, a trained Korean acupuncturist (not a licensed physician) who worked under Dr. Lewis' supervision and control also working during those hours. In November 1975, after consulting with his then attorney (who also served as counsel to the Medical Society of the District of Columbia), Dr. Lewis opened his office two days a week for several hours during the day. These office hours were maintained only for approximately two months. During this period Virginia Luaces, a Cubantrained surgical nurse, was permitted by Dr. Lewis to stimulate a small surgical staple (previously implanted in the patient's ear) by applying a risk-free electrical impulse as part of a weight reduction program. The surgical staples themselves were implanted by either Dr. Lewis or Mr. Kim.

On June 4, 1976, the Commission informed Dr. Lewis by mail of contemplated adverse action against his license for misconduct based on charges that he had permitted his agents or employees to perform acupuncture upon Virgil Clark and Barbara A. Hampton on five occasions between August 1975 and January 1976, "without the direct and immediate supervision and control of a licensed physician, all in violation of Section 2-102, D.C.Code, 1973 ed., and the Commission's adopted rules of December 7, 1972, and March 1, 1974." (These code sections are hereafter referred to as the Healing Arts Act). On August 8, 1976, the Commission added four new charges involving Clark and Hampton based on acupuncture treatments administered during the same period and alleging a similar lack of proper supervision. On October 29 and November 12, 1976, the Commission conducted hearings on these charges. On February 8, 1977, the Commission issued its decision. After making Findings of Fact and Conclusions of Law, the Commission suspended petitioner's license for three years. This appeal followed.

The record reflects that from June 1974 until November 1975, petitioner and another trained acupuncturist were in attendance at the office whenever it was open. There was also testimony that administrative and clerical employees worked at the office during the daytime hours several days a week. Dr. Lewis testified that these employees were not authorized to perform acupuncture. Dr. Lewis testified that except for the electrical stimulation of surgical staples² he adhered to a strict policy that no acupuncture treatment was to be performed by anyone during times when he was not present at his office. In support of this contention, the record reveals that on those occasions when petitioner discovered an employee had deviated from that policy, the employee was summarily discharged.

Virgil Clark and Barbara Hampton provided most of the evidence against petitioner. They testified to receiving acupuncture treatment from various employees of Dr. Lewis on nine separate occasions. During evening hours, while Dr. Lewis was present at the clinic and available to supervise and consult with acupuncturists and patients, Clark was treated by acupuncturist Stephen Kim on three occasions; and Hampton was treated by Kim on one occasion. During daytime hours when only performance of electrical stimulation was authorized by Dr. Lewis in his absence, Clark testified that he received treatment with acupuncture needles and pills from Virginia Luaces on two occasions.³ Hampton testified that she was treated for the first time in the evening of August 13, 1975, and again on August 20, by Nurse Joanna Lee, who implanted a surgical staple in Hampton's ear and placed needles in her ear and hands. Hampton was also treated by Nurse Luaces on one later occasion. Hampton testified that she had not seen Lewis on any of these visits. In response, Dr. Lewis testified that from August 8 to August 23, 1975, he was out of the country, and that he had arranged for a licensed physician to cover his practice. He had left strict instructions that no new patients were to be treated during his absence.⁴

Based on the evidence before it, the Commission made its findings of fact. The bulk of these findings summarizes the testimony of Clark and Hampton. The Commission thus appears to have credited the testimony of these witnesses and discredited that of the petitioner. In essence, the dereliction found by the Commission was the failure of petitioner to meaningfully supervise his employees in the administering of acupuncture therapy. This lack of supervision, according to the Commission, took two forms: (1) failure of petitioner to properly supervise employees in the administration of acupuncture treatment while he was present on the premises, and (2) permitting employees to practice acupuncture, including electrical stimulation of a surgical staple,⁵ while no physician was present.

II

In this court, petitioner claims a denial of due process. The key contention in petitioner's due process claim is that there was insufficient prior notice of what conduct was proscribed to permit the application of sanctions against him for "misconduct" under D.C.Code 1973, § 2-123. Because this notice issue is so central to the petitioner's due process claim, we deem it appropriate to briefly recount the history of acupuncture regulation in this jurisdiction.

The advent of acupuncture clinics in the District of Columbia in the early 1970's triggered prompt reactions. In 1972, a physician (not petitioner) specializing in acupuncture treatment who intended to open a clinic in the District of Columbia sought advice as to any proscriptions on the manner in which such acupuncture treatment could be administered. The Commission, at its meeting of December 7, 1972, concluded that acupuncture is a subcutaneous procedure of the healing art which may be practiced only by a licensed physician of the District of Columbia or under the direct and immediate supervision of a licensed physician of the District of Columbia who will be fully responsible for the actions of the acupuncturist. [Minutes of the Commission, Record at 317.]

This policy statement was never published in the D.C. Register or in any other governmental publication.

Subsequent to the adoption of this policy statement, the Commission became concerned that its restrictive provisions on supervision were being interpreted too loosely by those administering acupuncture treatments. In response to this concern, the Commission at its meeting of March 1, 1974, adopted a "Proposed Policy . . . Concerning Acupuncture." This statement differed from that of December 7, 1972, by not only requiring that all treatments be administered under the direct and immediate supervision of a licensed physician (as set forth in the 1972 statement) but also by requiring that the physician be physically present throughout the treatment. Although this proposed policy statement was published in the D.C. Register on March 18, 1974, as a proposed policy, nothing was done by the Commission thereafter formally to adopt or promulgate it.

During 1973 and 1974, a number of acupuncture clinics commenced operation in the District of Columbia. As a result of public interest and concern, a committee of the City Council, chaired by Dr. Henry S. Robinson, Jr., held hearings in May 1974, to determine whether the practice of acupuncture should be legislatively regulated. Based on these hearings, the Committee proposed and the City Council adopted Regulation No. 74-38, restricting the practice of acupuncture solely to licensed physicians and dentists. In subsequent litigation in the Superior Court, this Regulation was declared unconstitutional in a well-reasoned opinion by Superior Court Judge Fred B. Ugast. See Wensel v. Washington, C.A. Nos.11004-74 & 11005-74 (Super.Ct. Apr. 10, 1975).⁶

With no viable regulations or rules establishing treatment standards, the Commission found that petitioner's conduct violated the policy which it had adopted at its meeting of March 1, 1974, and published in the D.C. Register, as well...