Pietsch v. MN BD. OF CHIROPRACTIC EXAM'R

• Decision Date: 22 July 2004
• Docket Number: No. C6-02-2117.,C6-02-2117.
• Citation: 683 N.W.2d 303
• Parties: David M. PIETSCH, D.C., et al., Appellants, v. MINNESOTA BOARD OF CHIROPRACTIC EXAMINERS, Respondent.
• Court: Minnesota Supreme Court

683 N.W.2d 303

David M. PIETSCH, D.C., et al., Appellants, v. MINNESOTA BOARD OF CHIROPRACTIC EXAMINERS, Respondent.

No. C6-02-2117.

Supreme Court of Minnesota.

July 22, 2004.

John B. Wolfe, Jr., Wolf & Associates, St. Paul, MN, Wilbur W. Fluegel, Minneapolis, MN, for Appellants.

Mike Hatch, Attorney General, Steven M. Gunn, Assistant Attorney General, St. Paul, MN, for Respondent.

William J. Wernz, Robin M. Wolpert, Minneapolis, MN, Teresa J. Nelson, St. Paul, MN, for Amicus Curiae Minnesota Civil Liberties Union. Heard, considered, and decided by the court en banc.

OPINION

PAGE, Justice.

David Pietsch, D.C., seeks review of a decision of the court of appeals affirming the Minnesota Board of Chiropractic Examiners' (the Board) disciplinary action against him based on the Board's conclusion that he engaged in unprofessional conduct in violation of Minn.Stat. § 148.10, subd. 1(a)(11) and (e) (2002). We reverse and remand.

Pietsch, a Doctor of Chiropractic, owns and operates the Pietsch Chiropractic Clinic in St. Paul, Minnesota. Pietsch was first licensed to practice chiropractic in Minnesota in February 1998. At all times relevant to the Board's disciplinary action, Pietsch's practice consisted primarily of treating victims of motor vehicle accidents whose injury claims were covered by no-fault automobile insurance. A sizeable number of his patients were from the Hmong and Laotian communities.

In 1999, Pietsch contracted with Hue Xiong and Cha Xiong of Xiong Translation & Transportation Company (collectively, the Xiongs) to market his chiropractic services to the Hmong community. The Xiongs' practice was to obtain publicly available accident reports from local police departments every morning. These reports were then used to identify accident victims by ethnic group so that one of Pietsch's agents from the same ethnic group could call or visit the victims in order to solicit them to become patients at Pietsch's clinic. The record indicates that Pietsch's clinic paid Xiong Translation and Transportation $71,000 in 1999 and $95,000 in 2000.

Sometime before March 1, 2001, the Board received complaints alleging that Pietsch was engaged in improper fee splitting with the Xiongs. The Board's authority includes the power to grant, deny, revoke, suspend, condition, limit, restrict, or qualify a license to practice chiropractic. See Minn.Stat. § 148.10. The Board's complaint panel met with Pietsch on March 1, 2001, to discuss the fee splitting complaints. At that meeting, Pietsch denied paying a fee or commission for patient referrals. On March 8, 2001, the Board informed Pietsch by letter that, based on the facts before it, it had concluded that there was insufficient evidence to warrant pursuing the complaints further. Subsequent to the letter, the Board received additional evidence and, on March 21, 2002, the complaint panel issued a notice and order for hearing alleging that Pietsch engaged in fee splitting in violation of Minn.Stat. § 148.10, subd. 1(a)(16), and engaged in unprofessional conduct in violation of Minn.Stat. § 148.10, subd. 1(a)(11) and (e), by using "runners" or "cappers"¹ to solicit people involved in automobile accidents, by instructing chiropractic interns how to falsify treatment bills and examination reports to defraud insurance companies, and by instructing interns that they could care for non-English-speaking-patients without communicating with them about their health or medical problems.

In response to the complaint panel's request for admissions, Pietsch admitted paying the Xiongs to identify and contact Hmong accident victims for the purpose of soliciting them to become patients of his clinic. On the strength of these admissions, the complaint panel brought a motion for partial summary disposition² on the issues of fee splitting and the use of "runners" or "cappers" to solicit patients.³ A hearing was held on the motion before an administrative law judge (ALJ) at the Office of Administrative Hearings. The ALJ found that the complaint panel "ha[d] established that [Pietsch] paid `runners' to solicit business from accident victims * * * in violation of Minn.Stat. § 148.10, subd. 1(a)(16)," and that in doing so Pietsch also engaged in unprofessional conduct. The ALJ concluded, however, that the complaint panel "failed to demonstrate that [Pietsch's] conduct was per se unprofessional because the [Board] introduced no evidence to support a finding that [Pietsch's] conduct violated standards of professional behavior established by the consensus of the expert opinion in the chiropractic community." Ultimately, the ALJ recommended that the Board's summary disposition motion be granted and that disciplinary action be taken against Pietsch's chiropractic license.

The Board considered the ALJ's recommendation at a hearing in October 2002 and, on November 5, 2002, the Board issued its findings of fact, conclusions, and final order. In its findings, the Board disagreed with the ALJ's finding that Pietsch's conduct was not unprofessional conduct per se, but otherwise adopted the ALJ's findings in their entirety. The Board found that Pietsch's conduct in using paid "runners" or "cappers" constituted fee splitting, in violation of Minn.Stat. § 148.10, subd. 1(a)(16), and that fee splitting, as well as using "runners" or "cappers" to solicit clients, constituted unprofessional conduct, in violation of Minn.Stat. § 148.10, subd. 1(a)(11) and (e). In support of these findings, the Board noted that "the employment of runners and the use of fee splitting arrangements negatively affect the professional-patient/client relationship and are unethical, deceptive and harmful to the public." The Board went on to say:

Fee splitting arrangements with runners can influence the type of treatment a chiropractor provides to a patient and can encourage patients to exaggerate or invent injuries. Obtaining patients by employing runners to follow up on daily police accident reports preys on people when they are most vulnerable. These patients are not given an opportunity to carefully consider and choose among health care options. They are, in fact, pressured into choosing the runner's employer for their health care.

Furthermore, [Pietsch] admits that he targeted clients from the Hmong/Southeast Asian communities. These people may have language and cultural barriers which make [Pietsch's] behavior even more egregious.

Based on its findings and conclusions, the Board suspended Pietsch's chiropractic license for three years, assessed a $30,000 civil penalty, and set out a number of conditions Pietsch was required to meet before he could be reinstated.

Pietsch appealed to the court of appeals, raising the following issues: (1) whether the Board erred as a matter of law in ruling that the use of paid runners to solicit patients constituted fee splitting when fees obtained were not split with the runners; and (2) whether the Board erred as a matter of law in ruling that the use of paid runners to solicit patients constituted unprofessional conduct.

The court of appeals reversed the Board's determination with respect to fee splitting and affirmed with respect to unprofessional conduct. The court unanimously held that the Board's conclusion that Pietsch engaged in fee splitting was not supported by substantial evidence. Pietsch v. Minnesota Bd. of Chiropractic Exam'rs, 662 N.W.2d 917, 922 (Minn.App.2003). Specifically, the court held that, because the Xiongs were salaried employees and there was no evidence to suggest Pietsch split fees with them on a per-patient referral basis, there was no violation of Minn.Stat. § 148.10, subd. 1(a)(16). Id. at 921. As for the charge of unprofessional conduct, by panel majority, the court of appeals held that there was substantial evidence to conclude that Pietsch's use of runners to solicit patients was unethical, deceptive, and harmful to the public as well as the chiropractic profession. Id. at 924. The dissenting judge would have held that the unprofessional conduct statute was unconstitutionally vague as applied because the statute does not expressly prohibit paying "runners" a flat salary to solicit patients or otherwise inform chiropractors that such conduct is prohibited. Id. at 925-26 (Forsberg, J., dissenting).

I.

Summary disposition is the administrative equivalent of summary judgment. See Minn. R. 1400.5500(K) (2003). Review of a summary judgment award consists of determining whether there are any genuine issues of material fact and whether there was an error in applying the law to the facts. Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn.2003). When summary judgment is granted after applying the law to undisputed facts, the legal conclusion is reviewed de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). Statutory interpretation is a question of law subject to de novo review. Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn.2001).

In his petition for review to this court, Pietsch raised one issue: Whether application of Minn.Stat. § 148.10, subd. 1(a)(11) and (e), violated his right to due process in that the term "unprofessional conduct" is unduly vague. In his brief to this court, Pietsch argues that his conduct did not constitute unprofessional conduct as defined by Minn.Stat. § 148.10, subd. 1(a)(11) and (e). Pietsch also argues that there was no support for the statement in the court of appeals' opinion that the "board determined that relator engaged in unprofessional conduct by paying runners to solicit accident victims, regardless of whether relator's conduct constituted unlawful fee splitting." He contends, therefore, that it was error for the court of appeals to have based its decision on illegal solicitation, a ground not relied on by the Board.⁴ Finally, in his reply brief, Pietsch joins in the issue first raised by amicus Minnesota Civil Liberties Union in its brief to this court that section 148's unprofessional...