Thangavelu v. Department of Licensing and Regulation
| Decision Date | 28 May 1986 |
| Docket Number | Docket No. 82495 |
| Citation | 149 Mich.App. 546,386 N.W.2d 584 |
| Parties | Chelliah THANGAVELU, M.D., Petitioner-Appellant, v. DEPARTMENT OF LICENSING AND REGULATION, State Board of Medicine, Respondent- Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Carl Ziemba, Detroit, for petitioner-appellant.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Solicitor Gen., Thomas L. Sparks, Asst. Atty. Gen., for respondent-appellee.
Before T.M. BURNS, P.J., and BEASLEY and PAJTAS, * JJ.
Petitioner-appellant, Chelliah Thangavelu, M.D. appeals from an order of the Wayne County Circuit Court which affirmed revocation of his license to practice medicine by the State Board of Medicine and Department of Licensing and Regulation. The revocation proceeding was started on October 19, 1977, by the Attorney General as a result of two incidents involving appellant and two married women who were his patients. The complaint alleged violations of Sec. 11(1), (2)(h) and (i), and Sec. 12(1) of the Medical Practice Act, which provide:
Petitioner's license was revoked based on violations of Sec. 11(1), (2)(h) and (i).
These administrative proceedings were held in abeyance due to a pending criminal action as a result of the complaint of one of the women, after which petitioner was convicted by a jury of criminal sexual conduct in the first degree. However, in People v. Thangavelu, 2 this conviction was set aside by this Court and the case remanded for a new trial in which a jury returned a verdict of not guilty.
The administrative hearing resumed on February 25, 1983, at which time petitioner's motion to dismiss the portion of the complaint regarding the woman who had brought the criminal complaint based on a theory of collateral estoppel was denied on the ground that collateral estoppel did not apply to this case.
The hearing officer hearing the complaint made full findings of fact and law supporting the conclusion to revoke petitioner's license. Upon appeal, petitioner raises six issues.
First, petitioner claims that the board's decision in regard to the Forsman complaint was not supported by competent, material and substantial evidence on the whole record. With regard to the Forsman complaint, the hearing officer chose to believe the complaining woman who testified that petitioner touched her clitoris with his tongue because she saw him with his head directly over her vaginal area and felt the sensation of his tongue touching her, and because petitioner admitted that he made an inspection of her pubic hair. There was ample testimony upon which the hearing officer could base his findings. The applicable appellate standard to be applied in reviewing the findings of fact made by the hearing officer is whether they are supported by competent, material and substantial evidence on the whole record. 3 Such competent, material and substantial evidence was present.
Second, petitioner claims that the board's decision with regard to the May complaint was not supported by competent, material and substantial evidence on the whole record. Complainant testified that appellant diagnosed her as having hemorrhoids and treated them by inserting his finger in her rectum and massaging her rectum for twenty minutes. The hearing officer found that the act did occur and continued for "at least ten minutes". This complainant was examined by another doctor (Dr. Penn), who testified on deposition that Mrs. May did not have hemorrhoids, nor a cyst, nor was she pregnant. He also testified that a massage of her rectal area would be of no benefit whatsoever if she had hemorrhoids and, in fact, would result in a considerable amount of discomfort.
Petitioner claimed that this complainant had failed a polygraph test and that, as a result, no criminal complaint was issued. The hearing officer exercised his discretion and refused to admit the polygraph evidence.
The issue of whether the results of polygraph examinations should be admitted into evidence at administrative hearings has not been uniformly decided in Michigan. In general, the decisions have held against admissibility of polygraph evidence at trial, both civil and criminal. 4
In Sponick v. Detroit Police Dep't, 5 while intimating that polygraph evidence is inadmissible in administrative hearings, we held that, even if admitted, it does not have to be accepted as conclusive evidence.
In People v. Barbara, 6 the Supreme Court stated that although a polygraph is occasionally used as an investigative tool by prosecutors, the differences between use as an investigative and as an evidentiary device are great, and a technique accepted for one limited purpose may not yet be suitable for use in the other.
In MSEA v. Civil Service Comm, 7 petitioner, an intake worker, was discharged from the Department of Social Services for misconduct constituting a crime. Evidence that a complaining witness had taken and passed a polygraph examination was admitted into evidence by the hearing officer. While finding it unnecessary to address the issue of whether such evidence is properly admissible in administrative hearings, we stated that results of polygraph examinations are normally not admissible.
Finally, in Gilliard v. Dep't of Social Services, 8 where the DSS argued that the arbitrator in an administrative hearing committed error by excluding evidence of a polygraph examination taken by one of their witnesses, we stated:
(Footnote omitted.)
In the within case, the hearing officer declined to allow Mrs. May's polygraphs into evidence, but permitted a separate record. Even if we were to assume that the polygraph evidence was admissible, it is clear that the results of a polygraph examination are not conclusive. 9 We do not believe that the hearing officer abused his discretion by refusing to admit into evidence the results of polygraph examinations administered to Mrs. May. In addition, we do not believe that admitting the polygraph test into evidence would have changed the result.
Next, petitioner claimed that he was placed in double jeopardy as a result of the hearing officer's refusal to apply the principle of collateral estoppel to bar the administrative proceeding on the Forsman complaint. Petitioner reasons that the jury acquittal in his second trial for criminal sexual conduct constituted a finding that he had not committed an act of cunnilingus upon the complainant. He says that this jury verdict operated to apply the doctrine of collateral estoppel in this case where the medical licensing board attempted to use this same act of cunnilingus as part of the grounds for revocation of petitioner's medical license. The medical licensing board says flatly that the doctrine of collateral estoppel does not apply to a revocation of license proceeding where the licensee has been acquitted of the same criminal charge upon which the revocation is based.
In holding that the doctrine of collateral estoppel was not applicable, the hearing officer said:
Finding that an administrative proceeding is not criminal in nature, "though the result of such a hearing can be devastating to the petitioner", the trial judge agreed with the hearing officer.
The complaint in this case alleged violations of Sec. 11(1), (2)(h) and (2)(i), and Sec. 12(1) of the Medical Practice Act, while the criminal statutes which plaintiff was found not guilty of violating in the criminal trial were M.C.L. Sec. 750.520(a)-(e); M.S.A. Sec. 28.788(1)-(5).
The double jeopardy clause found in the Fifth Amendment of the United States Constitution and in Article 1, Sec. 15 of the 1963 Michigan Constitution protects against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. 10
In People v. Watt, 11 in discussing the doctrine of collateral estoppel when determining whether it applied to bar relitigation...
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