State Bd. of Medical Ed. and Licensure v. Grumbles

• Decision Date: 25 November 1975
• Citation: 347 A.2d 782,22 Pa.Cmwlth. 74
• Parties: Commonwealth of Pennsylvania, STATE BOARD OF MEDICAL EDUCATION AND LICENSURE v. Lloyd A. GRUMBLES, M.D., Appellant.
• Court: Pennsylvania Commonwealth Court

Page 782

347 A.2d 782

22 Pa.Cmwlth. 74

Commonwealth of Pennsylvania, STATE BOARD OF MEDICAL EDUCATION AND LICENSURE v. Lloyd A. GRUMBLES, M.D., Appellant.

Commonwealth Court of Pennsylvania.

Argued Sept. 11, 1975.

Decided Nov. 25, 1975.

Neil E. Jokelson, Philadelphia, for appellant.

Robert Chamberlin, Deputy Atty. Gen., Bureau of Professional and Occupational Affairs, Gerald Gornish, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellee.

Before CRUMLISH, Jr., WILKINSON, and ROGERS, JJ.

OPINION

ROGERS, Judge.

Lloyd A. Grumbles, M.D., here appeals from an order of the State Board of Medical Education and Licensure revoking his license to practice his profession. Doctor Grumbles has been licensed to practice medicine and surgery since 1952 and he is a board certified psychiatrist. He practiced for governmental agencies until 1957 when he took up private practice in Philadelphia as a psychiatrist. From that date until May of 1970 he resided at 1000 West Cheltenham Avenue with his wife and their children. The doctor's offices were in his residence. Dr. Grumbles' wife, who seems also to have been his patient suffering from an emotional disorder, left him in May of 1970 taking at least one of their children with her. From July 1970 until August 1971 Dr. Grumbles' office was in the Medical Arts Building in Jenkintown, Pennsylvania, and from August 1972 until the hearings in this matter, the last of which was conducted in October 1972, he practiced at 523 West Tabor Road.

The State Board of Medical Education and Licensure, apparently as the result of a communication from one Mrs. Mary Burnahm, a former patient of Dr. Grumbles and friend of both the doctor and Mrs. Grumbles and, after their separation, a friend of Mrs. Grumbles, cited the doctor to appear before it to show cause why his license should not be suspended or revoked. The citation is dated December 23, 1971 and described eight charges of misconduct. Hearings were conducted by the Board commencing in April 1972 and concluding in October of the same year. The Board's adjudication revoking the doctor's license was issued on November 21, 1974.

The State Board of Medical Education and Licensure as constituted at the time of the citation and hearings in this matter was by law to consist of seven persons, two being the Commonwealth's Commissioner of Professional and Occupational Affairs and its Secretary of Health, and the other five being physicians appointed by the Governor from a list submitted by the Pennsylvania Medical Society. Section 412 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, As amended, 71 P.S. § 122. The practice of medicine at the time the citation was issued and hearings conducted in this case was governed by the then Medical Practice Act, Act of June 3, 1911, P.L. 639, As amended, 63 P.S. § 401 et seq. Section 12 of that Act, 63 P.S. § 410, provided in part:

'The Board . . . may, for a definite or indefinite time, refuse, revoke, or suspend a license for any or all of the following reasons, to wit: . . .. The board may so act upon satisfactory proof of grossly unethical practice, or any form of pretense which might induce persons to become a prey to professional exploitation . . ..'

The hearings in this matter were conducted exclusively by physicians. Five physicians (one of which was a representative of the Department of Health) attended the first hearing conducted on April 13, 1972; four (again including the representative of the Department of Health) appeared at the second hearing on May 25, 1972. Three attended the final hearing conducted on October 10, 1972. Of the five members participating, two members attended all hearings and three attended only two.

Section 412 of the Administrative Code of 1929 was amended by the Act of July 20, 1974, P.L. 549, 71 P.S. § 122 (Supp.1975--1976), so as to provide that the State Board of Medical Education and Licensure should consist of nine members, two of whom should be the Commonwealth's Commissioner of Professional and Occupational Affairs and its Secretary of Health, five should be physicians, one should be a person knowledgeable in the field of allied health services, and the remaining person should be a representative of the public at large. ¹ Hence, between the dates when the citation was issued and the hearings conducted in this matter and the time the adjudication was rendered the Board was reconstituted. The citation in this case is signed by one John F. Hartman, M.D. as Chairman of the Board. The notes of testimony of the hearings show them to have been presided over by John W. Robertson, Jr., M.D., as Chairman of the Board. The adjudication filed more than two years later is signed by William J. Kelly, M.D., as Chairman of the Board, and by the Commissioner of Professional and Occupational Affairs. We record these circumstances because the deputy attorneys general representing the Board urge us to give great weight to the findings contained in the adjudication because members of the Board saw and heard the witnesses. While a person bearing the same name as William J. Kelly, M.D., the signer of the adjudication, was present at some but not all of the hearings (he was not present at the hearing when Dr. Grumbles' defense was presented), there is no indication that any of the other persons who attended the hearings in 1972 were members of the Board when the adjudication was filed in 1974. The following explanation for the delay in making the adjudication appears in that document:

'The time required to reach a decision and to have it properly embodied in this adjudication was regrettably lengthened by the fact that the attorney who had presented the case and who was to prepare the adjudication left the employ of the Commonwealth. Unfortunately, this was followed by a mix-up in assignments until finally, an attorney in the Department of Justice renewed (sic) the entire transcript and prepared the adjudication with the assistance of the Board. While a long period of time has unfortunately elapsed from the time of the hearing, the Board believes that its order is necessary to protect the public.'

The assistant attorney general then attached to the State Board of Medical Education and Licensure presented the charges most vigorously. As the adjudication states, another member of the attorney general's staff, acting for the Board, reviewed the transcript and prepared the adjudication. If this dual role of the Board's counsel is not a violation of due process, it comes perilously close to being so. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission v. Feeser, 20 Pa.Cmwlth. 406, 341 A.2d 584 (1975). Since the consequence of a holding that Dr. Grumbles' right to an apparently fair bearing would be a remand of the case for new hearings, an action which would simply prolong the case to the additional inconvenience of the appellant, we will dispose of the matter on the substantive grounds.

We feel compelled to allude to what may be an additional infirmity in the proceedings. It is clear that the State Board of Medical Education and Licensure, as under the statute it was required to do, acted in both a prosecutorial and adjudicative capacity. In the recent case of Dussia v. Barger, --- Pa. ---, 351 A.2d 667 (filed October 3, 1975), our Supreme Court struck down regulations of the Commissioner of the Pennsylvania State Police providing for a Disciplinary Board appointed by the Commissioner to investigate complaints against members and to make recommendations to the Commissioner as to whether he should convene a court martial, whose recommendations would in turn be reviewed and accepted or disapproved by the Commissioner. Compare Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Again, however, we do not ground our decision on this issue for the reason, among others, that it was not raised by the appellant, Dussia v. Barger not having been decided by the Supreme Court when the case was argued.

Rather, we set the adjudication aside because we have concluded that the findings of the Board are not supported by substantial evidence much less the clear and satisfactory evidence necessary to support charges of unprofessional conduct. In re Shigon, --- Pa. ---, 329 A.2d 235 (1974).

As we have noted, the case was vigorously prosecuted by the then Board's counsel. It was equally stoutly defended by Dr. Grumbles' counsel. Numerous objections to questions and answers were made by both throughout the lengthy hearings. The Physician who presided at the hearings was, as he several times mentioned, ill-equipped to deal with the legal niceties of counsels' positions. Our examination of the record convinces us that at least one serious error was committed. One of the charges was that Dr. Grumbles permitted 'unlicensed And unqualified patients and employees' to administer medication orally and by injection and to make glucose tolerance tests. No law, regulation, or practice of the profession was cited or alluded to making it a requirement that persons performing such duties should be licensed. When Dr. Grumbles was sought to be questioned by his counsel on the subject of the training and supervision he had given to those persons who were alleged to have given such medication and performed such tests, the assistant attorney general's objections were sustained and the inquiry thus ended. The adjudication includes a finding that the doctor permitted 'unlicensed and unqualified persons to administer medication and tests.'

A more serious fault with the Board's adjudication is that it is apparent that no consideration was given to the clear bias or interest of the Board's principal witnesses or to the fact that...