Sherman v. Com'n On Licensure to Practice

• Court: D.C. Court of Appeals
• Writing for the Court: Kelly
• Citation: Sherman v. Com'n On Licensure to Practice, 407 A.2d 595 (D.C. 1979)
• Decision Date: 04 October 1979
• Docket Number: No. 12556.,12556.
• Parties: Robert J. SHERMAN, Petitioner, v. COMMISSION ON LICENSURE TO PRACTICE the HEALING ART, Respondent.

407 A.2d 595

Robert J. SHERMAN, Petitioner, v. COMMISSION ON LICENSURE TO PRACTICE the HEALING ART, Respondent.

No. 12556.

District of Columbia Court of Appeals.

Argued March 14, 1979.

Decided October 4, 1979.

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John W. Karr, Washington, D. C., for petitioner.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington, D. C., at the time the brief was filed and the case was argued, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on brief, for respondent.

Before KELLY, HARRIS and MACK, Associate Judges.

KELLY, Associate Judge:

Petitioner Sherman's medical license was revoked by the District of Columbia Commission on Licensure to Practice the Healing Art [the Commission]. The Commission's reliance on inappropriate findings of fact and conclusions of law requires that we remand the case for more specific conclusions.¹ We order this limited remand reluctantly, for the Commission held fair and extensive hearings and substantial evidence was presented to support a determination that Dr. Sherman's medical license should be revoked under any reasonable standard.

The Commission's conclusions of law in the revocation proceedings do not make clear the standards of conduct applied to Dr. Sherman, nor do they indicate the significance of the improper evidence upon which the Commission chose to rely.² Its findings and conclusions thus do not meet the criteria established by the District of Columbia Administrative Procedure Act [DCAPA]. D.C.Code 1978 Supp., § 1-1509(e).³ And we cannot ourselves make such findings, for "[e]ven though there may be evidence in the record . . . this does not excuse the Commission from its duty of making a finding as the result of its consideration of that evidence." Miller v. District of Columbia Commission on Human Rights, D.C.App., 339 A.2d 715, 720 (1975), quoting Saginaw Broadcasting Co. v. Federal Communications Commission, 68 App. D.C. 282, 291, 96 F.2d 554, 563, cert. denied sub nom. Gross v. Saginaw Broadcasting Co., 305 U.S. 613, 59 L.Ed.2d 72, 83 L.Ed. 391 (1938).

I

Dr. Robert J. Sherman, a physician, was licensed by the Commission to practice medicine in the District of Columbia on July 15, 1957. Dr. Sherman's practice was largely as a government physician until 1973, when he retired on a total disability pension. From 1973 until March 31, 1976, he concentrated on his private medical practice, particularly on the operation of a small out-patient clinic where he performed between six and twenty-five abortions each day. On June 7, 1976, the Commission gave Dr. Sherman formal notice of a proceeding to revoke his medical license, based on a charge of professional misconduct supported by six specifications.⁴

Between August 19, 1976 and April 18, 1977, the Commission heard fourteen days of testimony on the revocation charges. The government called ten witnesses (including Dr. Sherman as an adverse witness). The petitioner called thirty-six witnesses. In a decision issued on September 7, 1977, the Commission found three of the specifications to be fully proven; a fourth specification was proven in part.⁵ Its decision informed Dr. Sherman that

1. On or about March 4, 1975, you did willfully and without any valid medical basis perform a septic and incomplete abortion on your patient, Rita C. McDowell, in order to require her to undergo subsequent surgical procedures at an additional fee, and that said septic and incomplete abortion did result in the death of said Rita C. McDowell.

2. You did willfully fail to use medically proper sterilization techniques in the performance of abortions by (1) reusing unsterilized disposable cannulae not meant for reuse, (2) using unsterilized tenaculums, sounds and forceps.

3. You did cause, suffer and allow your employee, Helen Overstreet, a person not licensed as a physician or registered as a nurse, to perform cryosurgery on your patients.

4. You did perform unnecessary services to increase your fees to patients by:

a. intentionally and willfully failing to complete suction aspiration abortions in order to require patients to return for additional surgical procedures, and

b. causing, suffering, and allowing Helen Overstreet to perform cryosurgery on medicaid beneficiaries without regard to actual medical need.

The Commission revoked Dr. Sherman's license to practice medicine in the District of Columbia. This petition for review asks us, pursuant to D.C.Code 1978 Supp., § 1-1510, to reverse or remand the Commission's order.⁶

II

Dr. Sherman's petition for review alleges several specific failures on the Commission's part, the first of which, undue reliance on privately promulgated guidelines, coupled with our own concern about the Commission's lack of clarity in its legal conclusions, requires remand. We nevertheless consider other allegations advanced by petitioner, since the Commission will face them on remand and since they are relevant to our decision to order neither a reversal nor a mandatory reopening of the record in this case.

We begin by dismissing the contention that the Commission erred in admitting into evidence and in relying upon Dr. Sherman's "concession of negligence" in the death of Rita McDowell. This concession was made in McDowell v. Sherman, Civil Action No. 5783-'75 (D.C.Super.Ct.), a civil malpractice action brought by Miss McDowell's family, based on the same facts as those of the first specification found here by the Commission. Petitioner seeks to rescind that concession; one that was originally made in writing by petitioner's attorney, was orally affirmed by petitioner in conference with the trial judge, and was submitted to the civil jury without objection. The malpractice trial judge denied a later motion to withdraw the concession and an affidavit was filed by then counsel denying that Dr. Sherman had expressed any reluctance to sign the statement of concession. Ample evidence thus exists to support the Commission's finding that the concession of negligence was voluntarily made.

The claim that the Commission in those proceedings erroneously placed the burden of proof on petitioner is also without merit. Petitioner relies on the fact that the Commission Chairman opened the hearing by telling Dr. Sherman that "[t]he Commission believes that it has sufficient evidence which, if not rebutted or explained, [would] justify the Commission's taking [Dr. Sherman's license.]" His argument confuses the burden of persuasion with the burden of proceeding, however. The Commission may proceed to a hearing only if it is satisfied that a prima facie case has been made. 5DD DCRR § 20.2(b). This rule is intended to protect licensees from mandatory hearings based on unfounded charges. The June 17 formal notice of charges warned Dr. Sherman that this preliminary threshold had been cleared and the Commission Chairman quite properly reminded him of that fact at the outset of the hearing. The burden of ultimate persuasion, by contrast, rested on the Commission. D.C.Code 1978 Supp., § 1-1509(b), 5DD DCRR § 40.-7(b). The members of the Commission, in response to questions by petitioner's counsel, stated at the very beginning of the hearings that they had not prejudged this case. Their final decision rejected, as unsustained by proof, several specifications of misconduct for which at least a prima facie showing of evidence had been made. There is no evidence that the Commission fell victim to the confusion that petitioner now urges upon us.

Nor are we disturbed by the allegation that the Commission misunderstood or misapplied the "wilful misconduct" standard of care to which Dr. Sherman was held.⁷ It is true, as petitioner alleges, that willfulness means "something worse than good intentions coupled with bad judgment." Mullen v. United States, 105 U.S App.D.C. 25, 26, 263 F.2d 275, 276 (1958). And it is true, as petitioner also alleges, that the Commission's decision at one point equated "gross carelessness" with "gross negligence." [Decision at 36.] But the Commission, in its final conclusions of law specifically held Dr. Sherman guilty of willful misconduct. And this court has said:

Willfulness does not necessarily require an intent to do harm; but it does require a conscious indifference to consequences under circumstances likely to cause harm. [Bohannon v. District of Columbia Department of Motor Vehicles, D.C.App., 288 A.2d 672, 675 (1972).]

The Commission's decision reflects a proper understanding of this standard when it concludes as a matter of law that Respondent's use of a 7 mm. cannula to evacuate a 12-week fetus (as he diagnosed it) was voluntary on his part. This constitutes willful design to perform an incomplete abortion. Respondent knew, or should have known, based on his performance of numerous prior abortions, that the 7 mm. cannula would negate a complete abortion. . . . [Decision at 30.]

There was ample evidence in the findings of fact to support this conclusion of law. We are, thus, not persuaded that the Commission erred in its understanding or application of the standard of conduct required of Dr. Sherman.

Petitioner next coatends that his medical license should be revoked only upon a showing of "clear, unequivocal, and convincing evidence . . .," Woodby v. I. N. S., 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), and not by the traditional standard for administrative proceedings applied by the Board in this case — a preponderance of the evidence. This claim has no statutory basis⁸ and is essentially grounded in a Fifth Amendment claim that due process requires this higher degree of proof.

Petitioner cites three Supreme Court cases to support this argument. The first, In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), holds that disbarment of an attorney is a "quasi-criminal" proceeding requiring procedural due process, including fair prior notice of the charge. Id. at...