Lyness v. Com., State Bd. of Medicine

• Decision Date: 30 June 1992
• Citation: 529 Pa. 535,605 A.2d 1204
• Parties: Samuel S. LYNESS, M.D., Appellant, v. COMMONWEALTH of Pennsylvania, STATE BOARD OF MEDICINE, Appellee.
• Court: Pennsylvania Supreme Court

Page 1204

605 A.2d 1204

529 Pa. 535

Samuel S. LYNESS, M.D., Appellant, v. COMMONWEALTH of Pennsylvania, STATE BOARD OF MEDICINE, Appellee.

Supreme Court of Pennsylvania.

Argued April 11, 1991.

Decided March 18, 1992.

Reargument Denied June 30, 1992.

Jean B. Green, Donald J. Martin, Norristown, for appellant.

John F. Alcorn, Joyce McKeever, Harrisburg, for appellee.

Before FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This is an appeal instituted by a physician, Samuel S. Lyness, M.D., whose license to practice medicine and surgery in the Commonwealth of Pennsylvania was revoked by the State Board of Medicine, after that Board initiated disciplinary hearings and concluded that Dr. Lyness had committed acts constituting immoral and unprofessional conduct in violation of the Medical Practice Act. ¹

The issue on appeal is whether a violation of due process occurs under the Pennsylvania Constitution when an administrative board, such as the State Board of Medicine, both determines that a professional licensing prosecution should be initiated, and then acts as the ultimate fact-finder in determining whether a violation has occurred. More specifically, this Court must address whether such a commingling of prosecutorial and adjudicative functions within a single multi-member administrative board is consistent with this Court's previous decision in Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975). For the reasons that follow, we conclude that such a commingling is not consistent with the notion of due process embodied in the Pennsylvania Constitution.

FACTUAL BACKGROUND

On January 8, 1985, an emergency meeting was called of the State Board of Medical Acting at the request of the Board's prosecuting attorney, Joseph E. Hagan, Esquire, ³ Board Chairperson Barbara K. Shore, Ph.D. convened the emergency meeting by telephone conference call. Eight members of the eleven-person Board were in attendance. ⁴ The subject of the meeting was to consider whether Mr. Hagan would be authorized to cite physician Samuel S. Lyness, M.D. (Lyness) for a formal hearing, based upon a complaint of sexual molestation of a female patient which had been brought to his attention.

Education and Licensure, forerunner of the present State Board of Medicine (hereinafter "Board"). The Board is an administrative body established by statute in Pennsylvania, with the authority to license, investigate complaints and impose disciplinary sanctions with respect to medical professionals practicing in the Commonwealth. See Medical Practice Act of 1985, Act of December 20, 1985, Pub.L. No. 457, as amended, 63 P.S. § 422.1 et seq. (Purdon Supp.1990). ²

Mr. Hagan represented to the Board that he had investigated a patient complaint which raised the following allegation. On November 26, 1984, Dr. Lyness had performed a partial craniotomy on a 17-year-old female patient ("A.Z."). Two days later, on November 28, 1984, the patient filed a report with local police alleging that on the prior evening, while in intensive care recovering from brain surgery, Dr. Lyness had fondled her vagina and placed his penis in her mouth.

Following discussion by the Board, seven out of the eight members in attendance voted to cite Dr. Lyness for a formal hearing, essentially determining that sufficient evidence existed to initiate disciplinary action. Only Board member Donald C. Reid, M.D., abstained. Prosecutor Hagan, on January 9, 1985, therefore issued an Administrative Complaint and Order to Show Cause, lodging formal charges against Dr. Lyness. The Complaint was issued under the signature of Barbara K. Shore, Ph.D., Chairperson of the Board.

In accordance with procedures established under Article IX of the Health Care Services Malpractice Act ("Malpractice Act"), Act of October 15, 1975, Pub.L. No. 390, as amended, 40 P.S. § 1301.901 thru § 1301.907, and various administrative regulations promulgated thereunder, see 49 Pa.Code § 16.41 (1987) et seq., the Board appointed a neutral Hearing Examiner, Louis E. Seltzer, Esq., to preside over the disciplinary proceedings initiated against Dr. Lyness. Testimony was commenced in February of 1985; however, criminal charges were filed against Dr. Lyness in several county courts in Pennsylvania. The Commonwealth Court stayed the administrative hearings before the Board, in order that these would not in any way taint pending criminal proceedings involving Dr. Lyness.

Dr. Lyness was acquitted of all charges by juries in Montgomery and Delaware Counties. Board hearings thereafter resumed in front of Hearing Examiner Seltzer. The original Administrative Complaint was amended to include seven additional counts against Dr. Lyness, involving six additional female patients who had come forward alleging sexual molestation Lengthy hearings on all charges were conducted by the Board-appointed Hearing Examiner between September, 1985 and September, 1986. On June 22, 1987, Hearing Examiner Seltzer issued his Adjudication and Order, finding that the allegations of six out of the seven Complainants were "overwhelmingly credible." His formal order directed that Dr. Lyness' license be suspended for a period of five years, and that Dr. Lyness submit himself to treatment by a physician (presumably a psychiatrist) designated by the Board.

similar to that described in the original Complaint. These new incidents took place over a period of eight years, between 1976 and 1984, and generally involved patients alleging that they had awoken from sedation to find Dr. Lyness engaged in sex acts with them.

Both Dr. Lyness and the Board's prosecuting attorney filed an application for review to the Board, as authorized by Section 905 of the Malpractice Act, 40 P.S. § 1301.905, which effectively permits de novo review of the Hearing Examiner's findings by the Board. On March 22, 1988, the Board convened a meeting and voted to affirm the factual findings of the Hearing Examiner. However, the Board found the sanction imposed by the Hearing Examiner to be inconsistent with the gravity of the misconduct, and instead ordered the permanent revocation of Dr. Lyness' license to practice medicine and surgery in the Commonwealth. The vote in favor of this action was six in favor, one abstention. ⁵ Of the original members of the Board who had voted to initiate prosecution against Dr. Lyness in January of 1985, three Board members (Barbara K. Shore, Ph.D., Guy L. Kratzer, M.D. and James, M.D.) participated in the meeting in March of 1988 at which Dr. Lyness' license was revoked; Ms. Shore did not cast a vote because she presided over the meeting. ⁶

On April 22, 1988, Dr. Lyness filed a Petition for Review in Commonwealth Court, alleging inter alia that there existed an improper commingling of prosecutorial and adjudicatory functions by the Board. The Commonwealth Court, in an en banc decision, affirmed the order of the State Board of Medicine. See Lyness v. Commonwealth of Pennsylvania State Board of Medicine, 127 Pa.Commw. 225, 561 A.2d 362 (1989). The Commonwealth Court rejected Dr. Lyness' argument that a multi-member administrative board, such as the State Board of Medicine, which performs both prosecutorial and adjudicatory functions constitutes a per se violation of due process. In reaching this conclusion the Commonwealth Court relied heavily upon its own decision in Oppenheim v. Department of State, 74 Pa.Commw. 200, 459 A.2d 1308 (1983). Oppenheim held that a pre-hearing determination of probable cause by an administrative board did not result in a per se invalid adjudication "as long as the prosecutorial and investigatory aspects of the matter are adequately separated from the adjudicatory function." ⁷

                The court below also distinguished the instant case from our previous decision in [529 Pa. 541] Dussia, on the thread of logic that the instant case involved a multi-member board, whereas  Dussia involved a single individual serving as both prosecutor and adjudicator.  Lyness, 127 Pa.Commw. at 228, 561 A.2d at 365.   The Commonwealth Court nevertheless vacated the decision of the Board, and remanded for further proceedings;  however, their conclusion related strictly to the issue of laches, which is not relevant in the instant appeal. 8
                

On October 15, 1990, this Court granted Dr. Lyness' Petition for Allowance of Appeal limited to the due process issue regarding the improper commingling of the Board's prosecutorial and adjudicatory functions. The petition was denied in all other respects.

DISCUSSION

The guarantee of due process of law, in Pennsylvania jurisprudence, emanates from a number of provisions of the Declaration of Rights, particularly Article I, Sections 1, 9 and 11 of the Pennsylvania Constitution. ⁹ These provisions in turn enjoy a long history in the Commonwealth, tracing their way back to early documents, including the English Magna Charta. See T. White, Constitution of Pennsylvania 114 (1907). As we have stated in the past, in attempting to shed light on the procedural face of due process: "[w]hile not capable of exact definition, the basic elements of procedural due process are adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction of the case." Commonwealth v. Thompson, 444 Pa. 312, 316, 281 A.2d 856, 858 (1971).

This Court has recognized as well established the principle that "due process is fully applicable to adjudicative hearings involving substantial property rights...." Soja v. Pa. State Police, 500 Pa. 188, 193, 455 A.2d 613, 615 (1982). Such property rights perforce include the right of an individual to pursue a livelihood or profession, thus triggering the protective mechanism of procedural due process. See, e.g., Roche v. State Board of Funeral Directors, 63 Pa.Commw. 128, 437 A.2d 797 (1981). A fortiori, this is true where, as here, an administrative board is empowered by the State to regulate...