Pet v. Department of Health Services, 14657

• Decision Date: 08 March 1994
• Docket Number: No. 14657,14657
• Court: Connecticut Supreme Court
• Parties: Donald PET v. DEPARTMENT OF HEALTH SERVICES et al.

Page 6

638 A.2d 6

228 Conn. 651

Donald PET v. DEPARTMENT OF HEALTH SERVICES et al.

No. 14657.

Supreme Court of Connecticut.

Argued Oct. 28, 1993.

Decided March 8, 1994.

Thomas J. Ring, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Richard J. Lynch, Asst. Atty. Gen., for appellants-appellees (defendants).

Donald Pet, pro se, appellee-appellant (plaintiff).

Before PETERS, C.J., and CALLAHAN, BERDON, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The dispositive issue in this administrative appeal is whether the trial court properly refused to supplement the record with evidence of alleged procedural irregularities to establish a violation of the Uniform Administrative Procedure Act (UAPA), and, specifically, General Statutes (Rev. to 1985) § 4-179. ¹ The defendant Connecticut department of health services (department) brought charges against the plaintiff, Donald Pet, a psychiatrist, alleging certain violations of General Statutes (Rev. to 1985) § 20-13c ² in relation to his psychiatric treatment of four female patients. The defendant Connecticut medical examining board (board), ³ after an evidentiary hearing by a panel of board members, concluded that the plaintiff had violated § 20-13c(4) and (5), and ordered that the plaintiff's license to practice be suspended for five years, after which his practice would be limited to supervised group therapy only within an institutional setting.

The plaintiff appealed to the Superior Court, ⁴ which sustained the plaintiff's appeal and remanded the case to the board for a new hearing, on the ground that the plaintiff's due process rights had been violated because the board had improperly curtailed the plaintiff's right to cross-examine an adverse expert witness. ⁵ The trial court, in response to the defendants' motion to articulate, stated that the prior administrative proceeding was effectively nullified by its order for a new hearing. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

We disagree with the trial court's determination that, under the facts of this case, the limitation of the plaintiff's cross-examination of an adverse witness violated due process, and we reverse on that issue. We conclude, however, that the record is insufficient to determine whether the board complied with the mandates of the UAPA, and that the trial court improperly reached a conclusion that the board had so complied. Because of the trial court's improper failure to permit the plaintiff to supplement the record with tapes of relevant board meetings and additional testimony regarding alleged procedural errors, we remand the case to the trial court for further proceedings.

The relevant procedural history of this action may be summarized as follows. The department charged the plaintiff with having failed to provide several patients with proper psychiatric care and treatment in violation of § 20-13c(2) and (4). ⁶ A hearing before a designated panel of the Connecticut medical examining board (panel) regarding these charges commenced on June 24, 1986, and continued on twenty different days, ending on August 29, 1989. ⁷ The panel consisted of four members of the board, but attendance throughout the days of the hearing ranged from one to four members. ⁸ The person chairing the hearing varied, with a different panel member acting as chairperson on days when the appointed chairperson was absent.

During the course of the hearing on December 29, 1988, the department issued a third amended statement of charges against the plaintiff. That statement of charges alleged in eighteen counts that, in violation of § 20-13c(2), (4) and (5), ⁹ the plaintiff had engaged in sexual conduct with four patients, had provided psychiatric care to employees, had mishandled the "transference phenomenon" with four patients, had improperly conducted a "sexological examination" of one patient, had improperly monitored the prescription of medication to one patient and had failed to respond properly to issues raised by one patient. The board eliminated several of these charges during the course of the hearing, including those relating to the plaintiff's psychiatric relationship with employees.

After the conclusion of the hearing, the department submitted to the panel a recommended "Proposal for Decision." Thereafter, on February 26, 1991, pursuant to General Statutes (Rev. to 1985) § 4-179, the panel issued a formal "Proposal for Decision." In March, 1991, the plaintiff filed a brief responding to both the department's and the panel's proposal for decision.

The parties presented oral arguments to the board at its March 19, 1991 meeting. The minutes of that board meeting state that, "[m]embers of the Board asked Dr. Williams for her opinion on the case, as she is the only remaining original Panel member who heard the case. Dr. Williams stated that, while she is the only Board member left, Dr. Mandell and Mr. Harris were actively involved in the drafting of the Proposal for Decision and the Proposal reflects the unanimous feeling of the Panel. Dr. Williams continued that there was a lot of material presented, and she has read the entire record." The board then voted to table a decision until the next month and requested that the department file a response to the plaintiff's brief by April 2, 1991.

On April 16, 1991, the board voted to strike one additional paragraph from the statement of charges. It also amended the proposal for decision by increasing the period of suspension of the plaintiff's license from three years to five years, and by adding a restriction that the plaintiff's practice thereafter be confined to group therapy within an institutional setting while under the supervision of a senior clinician approved by the board. The board's final decision, on April 23, 1991, reflected these changes, and concluded that the plaintiff had violated § 20-13c(4) and (5) with respect to the charges of inappropriate sexual conduct, mishandling of transference, misprescribing of medication and failing to monitor a patient. After the board denied the plaintiff's subsequent request for reconsideration, he instituted an appeal to the Superior Court, which, as has been previously noted, was sustained.

On appeal to this court, the defendants claim that the trial court improperly: (1) concluded that the board had violated the plaintiff's due process rights by limiting his cross-examination of the department's expert witness; and (2) nullified the prior administrative proceeding and ordered a new hearing. The plaintiff has cross appealed, claiming that the trial court improperly rejected his remaining constitutional and statutory claims and, accordingly, improperly failed to order dismissal of the charges against him. While we agree with the defendants' first claim, we also agree with the plaintiff that the trial court improperly denied him his statutory right to supplement the administrative record to prove that procedural irregularities undermined the fairness of the proceedings against him. A further hearing in the trial court will therefore be required. Additional facts are set forth below as necessary.

I

The defendants first claim that the trial court incorrectly held that the board had violated the plaintiff's due process rights by limiting his cross-examination of the department's sole expert witness. We agree with the defendants that the limitations placed on the plaintiff's cross-examination of that witness did not violate due process.

With respect to this issue, the trial court found the following facts. "At the administrative hearing held on April 18, 1989, the Department presented as its expert witness, Dr. Kenneth Selig, a psychiatrist and a graduate of Yale Law School. During its direct examination, the Department elicited from Dr. Selig his professional opinion on most of the charges it had brought against the plaintiff.

"Generally speaking, Dr. Selig's testimony on direct examination supported the positions taken by the Department. Thus, Dr. Selig testified about the Department's charges that the plaintiff violated General Statutes § 20-13c in connection with his employment of patients, his management of the 'transference phenomenon,' his alleged sexual contact with patients, his conduct of a 'sexological examination' of a patient, and his prescription and monitoring of medication for his patients.... The direct examination consumed most of the morning of April 18, 1989.

"Before noon on April 18, the plaintiff began his cross-examination of Dr. Selig. The hearing was adjourned that day at 12:20 p.m. The cross-examination continued at the next session, one week later on April 25.

"Analysis of the record of the cross-examination reveals that it covered all of the topics which were the subject of the direct examination. Additionally, the plaintiff pursued many questions aimed at weakening the witness's credibility, especially in the area of the witness's own training, experience, and current professional practice. Some of the cross-examination was effective in weakening the Department's position on the charges against the plaintiff. This was particularly true concerning the charge that the plaintiff improperly hired some of his patients to work in this clinic. The Board ultimately exonerated the plaintiff on this charge."

Our examination of the record reveals that the panel chairperson repeatedly admonished the plaintiff to discontinue a line of questioning on the differences between schools of psychiatric theory, and in particular how each manages the "transference phenomenon," because the questioning had become repetitive and non-productive. At the same time, the chairperson noted on the record that the board fully understood that different schools of psychiatric theory existed and that Selig did not profess...