Telang v. COM., BUREAU OF PROF. & OCC. AFFAIRS

• Citation: 751 A.2d 1147,561 Pa. 535
• Parties: Frank Wohlsein TELANG, M.D., v. COMMONWEALTH of Pennsylvania BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS. Appeal of State Board of Medicine.
• Decision Date: 18 May 2000
• Court: United States State Supreme Court of Pennsylvania

751 A.2d 1147

561 Pa. 535

Frank Wohlsein TELANG, M.D., v. COMMONWEALTH of Pennsylvania BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS.

Appeal of State Board of Medicine.

Supreme Court of Pennsylvania.

Argued November 16, 1999.

Decided May 18, 2000.

Paul A. Tufano, General Counsel, Office of General Counsel, Robert J. DeSousa, Chief Counsel, Gerald S. Smith, Counsel, Dept. of State, for State Bd. of Medicine.

David R. Dearden, Kalogredis, Tsoules and Sweeney, Ltd., Wayne, for Frank Wohlsein Telang, M.D.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NIGRO, Justice.

The issue before this Court is whether the Commonwealth Court abused its discretion and misapplied statutory and common law in mandating additional notice and a second administrative hearing. Since we find that notice and an opportunity to be heard on the question of sanction had already been provided to the physician facing disciplinary charges, we reverse.

Frank Wohlsein Telang, M.D. (Telang) was licensed to practice medicine in Pennsylvania and New Jersey until February 1996, when New Jersey's Board of Medicine suspended his New Jersey license pursuant to a finding that Telang sexually abused one of his patients during the course of her treatment.¹ As a result of New Jersey's action, the Pennsylvania Bureau of Professional and Occupational Affairs petitioned the Pennsylvania State Board of Medicine (Medical Board) to suspend Telang's Pennsylvania license, recommending a minimum three-year suspension. Pursuant to § 40(a) of the Medical Practice Act, Act of December 20, 1985, P.L. 457, No. 112, as amended, 63 P.S. §§ 422.1 et seq., the Medical Board immediately suspended Telang's license pending a formal hearing, determining that he posed a clear and immediate danger to the public health and safety. An Order to Show Cause was filed by the Commonwealth on July 31, 1996, charging Telang with one count of violating the Medical Practice Act.²

A formal administrative hearing was held on October 28, 1996. At the hearing, Telang, who was present and represented by counsel, admitted that his license had been suspended by New Jersey and that he had been in psychotherapy for his sexual boundaries problem since April 1996. The Hearing Examiner heard testimony from Telang and from his treating psychotherapist, Julian W. Slowinski (Slowinski). At the conclusion of the hearing, the Hearing Examiner ordered that Telang's license be suspended for at least three years, at which point he would be permitted to apply for reinstatement based on his personal rehabilitation and a showing that he did not pose a substantial risk of harm to the health and safety of his patients. Hearing Examiner's Order, Nov. 21, 1996.

Telang filed an Application for Review by the Medical Board³ seeking a lesser sanction.⁴ The Medical Board adopted the findings of fact of the Hearing Examiner. On reviewing the sanction imposed, however, the Medical Board found Telang's conduct "a deplorable violation of patient rights and medical ethics," maintaining that "even a single incidence of sexual abuse of a patient warrants a stringent sanction so that the greatest protection to the public available to the Board is afforded and so that integrity of the profession is maintained." Medical Board Adjudication at 4-5. Determining that suspension was too lenient, the Medical Board revoked Telang's Pennsylvania license.⁵ Thereafter Telang requested reconsideration and a hearing on the issue of revocation, which the Medical Board denied.

Telang appealed to the Commonwealth Court, which reversed the order of the Medical Board, finding that the Medical Board violated Telang's constitutional right to procedural due process by sua sponte imposing a harsher punishment than that ordered by the Hearing Examiner without giving Telang notice that such a sanction might be contemplated and without affording him an additional opportunity to present evidence with regard to a revocation penalty.⁶ We disagree and therefore reverse the Commonwealth Court and reinstate the adjudication and order of the Medical Board.

Here, Telang asserts that he has a property interest in his medical license and must therefore, pursuant to the United States Constitution, be afforded procedural due process before that license can be taken away from him. U.S. CONST. amend. XIV, § 1. In order to afford Telang his constitutional rights, the Commonwealth Court determined that Telang was entitled to additional notice specifying that the Medical Board was considering a harsher sanction, and to a second evidentiary hearing in order to present evidence with respect to revocation of his license. We agree that Telang has a property right in his medical license and that he must be afforded procedural due process in adjudicating any administrative charges against him. Lyness v. Commonwealth, State Bd. of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992). We nonetheless find that he was afforded the full procedural process due him before the Medical Board's sanction was imposed.

Due process requires that a physician be given notice of the charges against him and an opportunity to be heard. Administrative Law and Procedure, 2 Pa.C.S. §§ 501 et seq.; Medical Practice Act, 63 P.S. §§ 422.1-422.45; HCSMA, 40 P.S. §§ 1301.901-1301.907; Lyness, 529 Pa. at 542, 605 A.2d at 1207. It is commonly understood that "`due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). In other words, "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." Id.; see also Pennsylvania Coal Mining Ass'n v. Ins. Dep't, 471 Pa. 437, 449, 370 A.2d 685, 691 (1977).

Mathews presents three distinct factors to consider in examining the adequacy of procedural due process under the Fourteenth Amendment. The first factor looks at the private interest that will be affected by official action. The second assesses the risk of erroneous deprivation of such interest through the procedures actually used and examines the value, if any, of additional or different procedural safeguards. The third examines the government's interest, including any fiscal and administrative burdens that additional or substitute procedural requirements would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903.

With this in mind, the Commonwealth Court properly looked to Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and its progeny for guidance on the requirements to satisfy procedural due process in specific instances. However, we believe the court improperly analyzed the instant circumstances according to the Mathews guidelines. Here, it is undisputed that Telang has a substantial property interest in his medical license and that the Commonwealth may not deprive him of that license without adequate due process. Lyness, 529 Pa. at 542,605 A.2d at 1208. Thus, the parties do not dispute the first factor of Mathews.

The second factor requires that we assess the risk that Telang, without further due process, may have been erroneously deprived of his license. The Commonwealth Court characterizes Telang as "blindsided" by the Medical Board's ruling because he had "no indication at any time before the Board issued its order that it contemplated a harsher sanction." Telang v. Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs, 714 A.2d 1109, 1112 (Pa.Commw.1998). We disagree.

On July 31, 1996, Telang was served Notice stating "[a] formal administrative disciplinary action has been filed against you." The first several lines of the document announces, in capital, underlined letters:

YOU MAY LOSE LICENSES, CERTIFICATES, REGISTRATIONS OR PERMITS WHICH MAY BE IMPORTANT TO YOUR PRACTICE OF YOUR PROFESSION, TRADE OR OCCUPATION

Commonwealth of Pennsylvania Bureau of Professional and Occupational Affairs v. Telang, Notice, July 31, 1996, at Dkt. No. 0602-49-96 (emphasis in original).

Attached to the Notice was the Order to Show Cause, which advised him:

If the Board finds the Factual Allegations to be true and correct, and determines that the [physician] violated the Act, the Board may, in its discretion, impose one or more of the following penalties: The revocation, suspension or other restriction of any licenses, certifications, registrations, permits or other authorizations to practice a profession held by the [physician] in the Commonwealth of Pennsylvania, or the imposition of any other disciplinary or corrective action which the Act authorizes the Board to impose.

Order to Show Cause at Dkt. No. 0602-49-96, July 31, 1996 at 3 (emphasis added). See also Medical Practice Act, 63 P.S. § 422.42.

Thus, before appearing before the Hearing Examiner, Telang knew that license revocation was clearly a possibility and that the Medical Board, as the final adjudicator, could impose such a penalty. Furthermore, § 422.41 of the Medical Practice Act, under which Telang was charged, is captioned "Reasons for refusal, revocation, suspension and other corrective actions against a licensee or certificate holder." 63 P.S. § 422.41 (emphasis added). The implication is that for any of the infractions listed under § 422.41, the sanctions enumerated were available.

The record of proceedings before the Hearing Examiner belies the Commonwealth Court's finding that Telang was not afforded an opportunity to present evidence or argue against revocation. At the evidentiary hearing, Telang was represented by counsel and testified on his own behalf, admitting that his New Jersey license had been suspended. Telang further admitted his problem with sexual boundaries, acknowledging that he was in therapy because of it. Therefore, the basis on which disciplinary action could be taken was uncontested. Telang also had the opportunity to present...