Webb v. State ex rel. Arizona Bd. of Medical Examiners

• Decision Date: 25 June 2002
• Docket Number: No. 1 CA-CV 01-0010.,1 CA-CV 01-0010.
• Citation: 202 Ariz. 555,48 P.3d 505
• Parties: Dale F. WEBB, M.D., Plaintiff-Appellant, v. The STATE of Arizona, by the ARIZONA BOARD OF MEDICAL EXAMINERS, an Administrative Agency of the State of Arizona, Defendant-Appellee.
• Court: Arizona Court of Appeals

48 P.3d 505

202 Ariz. 555

Dale F. WEBB, M.D., Plaintiff-Appellant, v. The STATE of Arizona, by the ARIZONA BOARD OF MEDICAL EXAMINERS, an Administrative Agency of the State of Arizona, Defendant-Appellee.

No. -0010.

Court of Appeals of Arizona, Division 1, Department B.

June 25, 2002.

As Corrected August 15, 2002.

Bradford Law Offices, P.L.L.C. By Michael E. Bradford, Jeffrey L. Bradford, Phoenix, Attorneys for Plaintiff-Appellant.

Janet Napolitano, Attorney General By Roberto Pulver, Assistant Attorney General, Phoenix, Attorneys for Defendant-Appellee.

OPINION

FIDEL, Judge.

¶ 1 The Arizona Board of Medical Examiners, after investigating a patient's complaint against appellant Dr. Dale F. Webb, granted Webb an interview, at the conclusion of which it publicly censured him for unprofessional conduct. Webb requested rehearing, which the Board denied, and he then sought judicial review. The superior court dismissed Webb's complaint for failure to exhaust administrative remedies, but this court reversed that judgment and remanded for further proceedings. Webb v. State ex rel. Arizona Bd. of Medical Exam'rs, 194 Ariz. 117, 122, ¶ 27, 977 P.2d 839, 844 (App.1999). On remand, the superior court affirmed Webb's censure on the merits. In this second appeal, we reverse once more, finding that the Board failed to provide due process of law.

I. BACKGROUND

¶ 2 Webb is certified to perform both general and thoracic surgery. A patient filed a complaint with the Board in September 1994, the gist of which was that Webb had failed to take proper diagnostic measures when treating her in February 1994 for a condition that the Scripps Clinic three months later diagnosed as cancer. She also alleged that Webb's office had refused to provide her copies of her medical records. ¶ 3 The Board is statutorily charged with "[i]nitiating investigations and determining on its own motion if a doctor of medicine has engaged in unprofessional conduct or provided incompetent medical care." A.R.S. § 32-1403(A)(2) (Supp.2001). It sent Webb a copy of the patient's complaint and requested his narrative statement. Webb replied, summarized his care and treatment of the patient, and submitted copies of her medical records for release to her.¹

¶ 4 The Board's medical consultant, Dr. Philip Z. Saba, investigated and reviewed the patient's complaint, Webb's response, and medical records from both Webb's office and the Scripps Clinic. In a written summary of his investigation, Saba reported that Webb had seen the patient on five occasions in February 1994 for a painful left groin, had diagnosed her condition as an "abscessed lymph node," had treated the patient by aspirating the abscess and prescribing antibiotics and other medications, but had failed to send a specimen for examination or culture. In May of the same year, the patient was diagnosed at the Scripps Clinic as having anal cancer that had metastasized to the lymph nodes. Saba ended his report with the conclusion that "Doctor Webb should have been more aggressive in pursuing a diagnosis."

¶ 5 The Board notified Webb by letter that an "informal interview" would be held on April 18, 1996, to discuss his care and treatment of the patient and her complaint of inappropriate management. The letter purported to include a copy of Dr. Saba's report to assist Webb's preparations; it advised Webb of his right to be represented by counsel and his right to either submit material in advance or bring material to the interview that he wished the Board to consider; and it advised him that, after a brief overview by the Board's consultant (Dr. Saba), Webb would be asked to present "a concise, factual oral response" to the issues addressed in Saba's report. The letter advised that after the interview, the Board could "continue the investigation, file the matter for information, dismiss the matter, file the matter with an advisory Letter of Concern, take disciplinary action, or refer the matter to a formal hearing for possible revocation of license." The letter did not advise Webb that he had an option to decline an interview and choose a full, formal hearing instead.

¶ 6 Webb appeared without counsel at the time scheduled for his interview, which proceeded as we will describe below. At its conclusion, the Board unanimously approved Findings of Fact, Conclusions of Law, and a Decree of Censure. The Board found that Webb had engaged in "unprofessional conduct" that fell within A.R.S. § 32-1401(25), subparts (q) and (ll). "Unprofessional conduct" is defined at length in A.R.S. § 32-1401(25) (1996). Subpart (q) includes within the definition "[a]ny conduct or practice that is or might be harmful or dangerous to the health of the patient or the public"; subpart (ll) includes "[c]onduct that the board determines is gross negligence, repeated negligence or negligence resulting in harm to or the death of a patient."

II. STANDARD OF REVIEW

¶ 7 In reviewing an administrative agency's decision, the superior court examines whether the administrative action was illegal, arbitrary, or capricious, and whether it involved an abuse of discretion. A.R.S. §§ 12-901 to 913 (1992); Ethridge v. Arizona State Bd. of Nursing, 165 Ariz. 97, 100, 796 P.2d 899, 902 (App.1989). In our review of the superior court's ruling upholding the administrative decision, we independently examine the record to determine whether the evidence supports the judgment. Carley v. Arizona Bd. of Regents, 153 Ariz. 461, 463, 737 P.2d 1099, 1101 (App.1987). Neither this court nor the superior court may substitute its judgment for that of the agency on factual questions or matters of agency expertise. DeGroot v. Arizona Racing Comm'n, 141 Ariz. 331, 336, 686 P.2d 1301, 1306 (App. 1984). We apply our independent judgment, however, to questions of law, including questions of statutory interpretation and constitutional claims. Hansson v. State Bd. of Dental Exam'rs, 195 Ariz. 66, 68, ¶ 6, 985 P.2d 551, 553 (App.1998).

III. PROCEDURAL DUE PROCESS

¶ 8 A physician has a property interest in a license to practice medicine, and the State may not deprive a physician of that interest without due process of law. Comeau v. Arizona State Bd. of Dental Exam'rs, 196 Ariz. 102, 106, ¶ 18, 993 P.2d 1066, 1070 (App.1999). Professional censure "is a form of deprivation." Id.; see also A.R.S. § 32-1451(G)(4) (1996) ("[C]ensure is an official action against the doctor's license.").

¶ 9 Procedural due process requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time. Comeau, 196 Ariz. at 106-07, ¶ 20, 993 P.2d. at 1070-71. Webb claims that he was denied a meaningful opportunity to be heard at the interview conducted by the Board. In response, the Board defends the procedural adequacy of Webb's interview but also argues that Webb waived a more formal hearing by choosing to appear for an interview instead.

¶ 10 Considering the latter point first, we find no waiver of due process requirements. A valid waiver of constitutional rights must be voluntary, knowing, and intelligent. State v. Bocharski, 200 Ariz. 50, 61, ¶ 56, 22 P.3d 43, 54 (2001); Lynch v. Lynch, 164 Ariz. 127, 132, 791 P.2d 653, 658 (App. 1990) (waiver requires one to intentionally relinquish a known right); A.J. Bayless Markets v. Indus. Comm'n, 134 Ariz. 243, 245, 655 P.2d 363, 365 (App.1982) (to waive fundamental right to cross-examine requires clear showing of intent). No such waiver may be found in the record of this case. Not only did Webb not waive his entitlement to due process of law; neither can he be found to have made a knowing choice between an interview and a hearing.

¶ 11 When the Board requested in writing that Webb appear for an "informal interview," it did not state that he had the option to decline or that he could choose a formal hearing instead. The thrust of the letter was that Webb was expected to appear.² Even the statute does not suggest an unconstrained choice between an interview and a formal hearing. The statute then in force provided that a formal hearing would be ordered if a physician "refuses the invitation" to attend an informal interview. See A.R.S. § 32-1451(G) (1996). A physician facing potentially severe disciplinary sanctions from the tribunal extending such an invitation would understandably be hesitant to refuse.

¶ 12 We do not suggest that due process cannot be satisfied through a process that includes elements of an interview. "Due process is not necessarily judicial process." Rosenberg v. Arizona Bd. of Regents, 118 Ariz. 489, 492, 578 P.2d 168, 171 (1978). Nor does it entail one set "of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The Medical Practice Act, however, permits the Board, at the conclusion of an interview and without convening a formal hearing, to file a letter of concern, file a letter of reprimand, issue a decree of censure, fix a period and terms of probation, restrict the doctor's license to practice, require restitution of fees, or temporarily suspend the right to practice for up to 12 months. See A.R.S. § 32-1451(G). A person facing such a range of consequences, in our judgment, must at a minimum be provided a chance to confront adverse evidence and question adverse witnesses. See App. of Levine, 97 Ariz. 88, 91, 397 P.2d 205, 207 (1964) (a deprivation hearing, to satisfy due process, must include among other elements notice, a reasonably definite statement of charges, and the right to produce witnesses and examine adverse witnesses); see also Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Carroll v. Robinson, 178 Ariz. 453, 461, 874 P.2d 1010, 1018 (App.1994).

¶ 13 Webb contends that the Board denied him due process by (1) not allowing him to cross-examine Saba; (2) preventing him from addressing Saba's critique and the Board's concerns and from...