Shah v. State Bd. of Medicine
| Decision Date | 22 May 1991 |
| Docket Number | No. 1195,1195 |
| Citation | 589 A.2d 783,139 Pa.Cmwlth. 94 |
| Parties | Jyotindra T. SHAH, M.D., Petitioner, v. STATE BOARD OF MEDICINE, Respondent. C.D. 1990. |
| Court | Pennsylvania Commonwealth Court |
John F. Alcorn, Counsel, with him, Joyce McKeever, Chief Counsel, Bd. of Professional and Occupational Affairs, and Pamella J. Raison, Chief Counsel, Dept. of State, Harrisburg, for respondent.
James R. Farley, with him, Jeffrey A. Hulton, Rothman, Gordon, Foreman & Groudine, P.C., Pittsburgh, for petitioner.
Robert B. Hoffman, Reed, Smith, Shaw & McClay, Harrisburg, for amicus curiae, Pennsylvania Medical Soc.
Before SMITH and PELLEGRINI, JJ., and BARRY, Senior Judge.
Jyotindra T. Shah, M.D. (Dr. Shah) files a Petition for Review appealing an Order of the State Board of Medicine (Board) revoking his license to practice medicine and surgery in the Commonwealth of Pennsylvania.
On August 21, 1989, the Board's Prosecuting Attorney, Roger H. Caffier, Esquire (prosecuting attorney) filed a Petition for Immediate Temporary Suspension of Dr. Shah's medical license pursuant to Section 40(a) of the Medical Practices Act of 1985 (MPA), Act of December 20, 1985, P.L. 457, as amended, 63 P.S. § 422.40(a). 1 The prosecuting attorney averred that as a result of alleged sexual misconduct involving four of his patients, 2 Dr. Shah represented an immediate and clear danger to the public health and safety, thus requiring an immediate suspension of his license. (Reproduced Record (R.R.) 3 1a-10a). On August 22, 1989, after proper notice, the Board ordered a temporary suspension of Dr. Shah's license, directed that a prima facie hearing be held, and authorized the prosecuting attorney to begin institution of a formal action to suspend, revoke or otherwise restrict Dr. Shah's license. (R.R. 2a-13a).
On September 25, 1989, following the prima facie hearing, the Hearing Examiner, Ms. Chere Winnekk-Shawer, issued an Order finding that "a prima facie case was not presented as to 'an immediate and clear danger to the public health and safety' because of the time period involved," and reinstated Dr. Shah's license. 4 (R.R. 15a-16a). In response, the prosecuting attorney filed an Application for Review and Petition for Stay with the Board. (R.R. 195a-201a; P.R.R. 45a-49a). Dr. Shah filed various Motions in Opposition. (R.R 202a-220a). On October 27, 1989, the Board voted to vacate the Order of its Hearing Examiner and reinstate the suspension of Dr. Shah's license. (R.R. 1935a-1946a; P.R.R. 68a-77a).
On October 31, 1989, Dr. Shah filed a Petition for Review and a Petition for Special Relief in the Nature of a Petition for Preliminary Injunction and a Petition for Supersedeas with this Court. (P.R.R. 78a-94a). This Court dismissed the Petition for Preliminary Injunction and denied the Petition for Supersedeas. Dr. Shah then filed a Petition for Review of Denial of Supersedeas with the Pennsylvania Supreme Court, which issued an Order granting the Petition for Supersedeas and setting aside the suspension of Dr. Shah's license pending a full and final determination of the charges pending before the Board. (P.R.R. 95a). Due to the Supreme Court's stay, this Court was not required to take any action on Dr. Shah's Petition for Review.
On December 22, 1989, the Board issued an Order to Show Cause why his license should not be revoked and formally charging Dr. Shah with the allegations contained in the Petition for Immediate Temporary Suspension. (R.R. 226a-242a). In January of 1990, Formal Hearings were held before the Board with Vice Chairman of the Board, Joshua Perper, M.D., (Dr. Perper) sitting as the presiding officer, and John Alcorn, Esquire, sitting as the Board's counsel (Board's Counsel). Following the hearings, the Board entered an Adjudication and Order revoking Dr. Shah's license to practice medicine based upon immoral and unprofessional conduct and abuse of a patient with respect to an incident involving patient M.C. 5 (R.R. 1518a-1519a, 1547a). However, the Board found that Dr. Shah did not present an immediate and clear danger to the public health and safety under Section 41(9) of the MPA, 63 P.S. § 422.41(9), and dismissed those counts. (R.R. 1519a).
Dr. Shah filed a Petition for Review and an Application for Stay Pending Appeal with this Court, which we dismissed without prejudice pursuant to Pa.R.A.P. 1701(b)(3) when the Board granted Dr. Shah's Application for Reconsideration and Rehearing. After viewing a videotape made of Dr. Shah's examination room, the Board issued another Order reaffirming its previous Adjudication and Order revoking Dr. Shah's license. (R.R. 1841a-1842a). Dr. Shah then filed another Petition for Review and an Application for Stay Pending Appeal with this Court, which was granted and subsequently upheld by the Pennsylvania Supreme Court. Now before us are Dr. Shah's contentions concerning the temporary suspension and a number of challenges to the final revocation Order by the Board. 6
Shah raises several due process issues concerning the proceedings that led to the temporary suspension of his physician's license. He contends that Section 40(a) of the MPA violates his due process rights under the Due Process Clause of the United States Constitution 7 because it fails to give him an opportunity to be heard within "a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). 8 While he acknowledges that Section 40(a) requires that a hearing be held within thirty days after the initial suspension he argues that it does not sufficiently provide him with the timely due process required to protect his property right to practice medicine. Even if that hearing could be considered timely, he contends it violates his due process rights because it is not a meaningful hearing since only a prima facie case need be established for his license to practice medicine to be temporarily suspended. 9
Section 40(a) of the MPA provides that the Board may issue a temporary suspension of a physician's license "without a hearing, but upon due notice" when it finds that a physician's continued practice of medicine presents an "immediate and clear danger to the public health and safety." Section 40(a) further provides that within thirty days of the suspension order, "the Board shall conduct or cause to be conducted a preliminary hearing to determine that there is a prima facie case supporting the suspension." 63 P.S. § 422.40(a). See Footnote # 1. Shah contends that before his license can even be temporarily suspended, he is entitled to a pre-suspension hearing where he can present evidence and cross-examine witnesses.
The Supreme Court has held that an essential principle of due process is that a deprivation of any property right be proceeded by notice and an opportunity for a hearing appropriate to the nature of the case. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). A license, such as a medical professional license to practice medicine, once obtained by compliance with law, becomes a valuable privilege or right in the nature of property, and is safeguarded by due process principles that apply to property lawfully acquired. See Missouri ex. rel. Hurwitz v. North, 271 U.S. 40, 46 S.Ct. 384, 70 L.Ed. 818 (1926); Cf. Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (); Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (drivers license); Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973) (Powell, J. concurring) (commercial business license); Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917) (bar membership). Since due process applies to the suspension or revocation of a medical license, the question becomes what process is due. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Prior to depriving a citizen of a property right such as practicing medicine, the "root requirement" is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); See also Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493. While this ordinarily is the rule, the Supreme Court had held that there are situations where a pre-termination hearing is not required where it is not practical under the circumstances to provide such pre-termination relief. Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493; Goldberg v. Kelly, 397 U.S. 254, 261, 90 S.Ct. 1011, 1016, 25 L.Ed.2d 287 (1970). In Parratt v. Taylor, 451 U.S. 527, 539, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981), the Supreme Court stated that it is permissible to dispense with the ordinarily required pre-termination hearings due to:
[E]ither the necessity of quick action ... or the impracticability of providing any meaningful pre-deprivation process can, when coupled with the availability of some meaningful means by which to assess the propriety of the state's action at some time after the initial taking, satisfy the requirements of procedural due process.
See also Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984).
In determining whether the timing of the hearing satisfies constitutional due process, the courts employ a balancing test enunciated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Richardson v. Eastover, 922 F.2d 1152 (4th Cir.1991); Patterson v. Cronin, 650 P.2d 531 (Colo.1982). In Mathews, the Supreme Court, commenting that "due process is flexible and calls for such procedural protections as the particular situation demands," set forth three distinct factors to be considered when...
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