Webb v. State ex rel. Arizona Bd. of Medical Examiners, 1CA-CV97-0431

• Decision Date: 15 April 1999
• Docket Number: No. 1CA-CV97-0431,1CA-CV97-0431
• Parties: 293 Ariz. Adv. Rep. 23 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

Page 839

977 P.2d 839

293 Ariz. Adv. Rep. 23

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. 1CA-CV97-0431.

Court of Appeals of Arizona Division 1, Department C.

April 15, 1999.

Law Offices of Michael E. Bradford by Michael E. Bradford Jeffrey L. Bradford, Phoenix, for Plaintiff-Appellant.

Janet A. Napolitano, The Attorney General by Victoria M. Mangiapane, Assistant Attorney General, Phoenix, for Defendant-Appellee.

OPINION

FIDEL, Presiding Judge.

¶1 The superior court, finding that Dale F. Webb, M.D., had failed to exhaust his administrative remedies, dismissed his complaint seeking judicial review of the decision of the Arizona Board of Medical Examiners ("BOMEX") to censure him for unprofessional medical treatment of a patient. Dr. Webb's appeal presents the question whether, by filing an insufficiently detailed request for administrative rehearing, Dr. Webb deprived BOMEX of jurisdiction to consider rehearing, left his administrative remedies unexhausted, and deprived the superior court of authority to conduct judicial review. For the following reasons, we reverse the trial court's decision and remand for proceedings consistent with this decision.

I.

¶2 After investigating a complaint against Dr. Webb by a former patient, BOMEX requested that he appear for an informal interview. ¹ BOMEX advised him of his right to appear with legal counsel, but Dr. Webb chose to appear and testify alone. After considering the testimony and written record, BOMEX voted to issue Dr. Webb a decree of censure, ² citing him for "conduct or practice which is or might be harmful or dangerous to the health of the patient or the public" ³ and "conduct that the board determines is gross negligence, repeated negligence or negligence resulting in harm to or the death of a patient." ⁴

¶3 On April 30, 1996, the executive director of BOMEX served a copy of the Board's "Findings of Fact, Conclusions of Law, and Decree of Censure" upon Dr. Webb. Fourteen days later, on May 14, 1996, Dr. Webb, still acting on his own behalf, faxed a letter to the executive director, which stated in its entirety:

I wish to appeal the decision to censure made on April 18th, 1996. Please send me whatever is required for this process. Your letter on April 30th, 1996 [ ] does not addr[e]ss this process.

On May 15, 1996, the executive director faxed Dr. Webb the following response:

Thank you for your letter of May 14, 1996. You will find enclosed a copy of the Board's re-hearing rule, R4-16-102.

For your information, you could have found this rule on page 10 of your 1995-1996 Arizona Medical Directory, sent to you in October by the Board.

¶4 On May 24, 1996, Dr. Webb wrote the executive director that he had already read the suggested page of the Arizona Medical Directory, but had found the entry "vague and uninformative." He asked if there was a form he needed to complete and specific points he needed to address. In a responding letter on May 31, the executive director stated,

There is no form required to file a Request for Rehearing or Review.

While there are no specific questions to be addressed in your Request for Rehearing ..., you may wish to cite those grounds for a rehearing (listed under AAC R4-16-102(C)) which you believe to apply to your specific case and tell why you believe they apply.

In a June 10, 1996, reply, Dr. Webb first asserted specific grounds for rehearing, invoking the grounds set forth in Arizona Administrative Code ("A.A.C.") R4-16-102(C)(1), (2), (5), (6), and (7), and alleging that BOMEX had wrongly precluded him from introducing supportive textual material, had considered "prejudicial, inflammatory and grossly misleading" evidence, and had denied him "the fundamentals of a fair hearing."

¶5 Dr. Webb then hired a lawyer, who contacted one of the two assistant attorneys general representing BOMEX to discuss the status of Dr. Webb's rehearing request. The assistant attorney general later summarized their conversation for BOMEX at the BOMEX hearing on the motion for rehearing. She stated,

When counsel originally called me about this case he asked me if the state intended to argue that the doctor's papers were late and I said that I had read the doctor's first letter and that we would regard the first letter as a request for reconsideration and to my count that letter was not late. We did not discuss the content of the letter whether it was legally sufficient or not. I also told him that the rehearing rule provided for an amendment. ⁵

¶6 Dr. Webb's lawyer filed an amended motion for rehearing on June 27, 1996, reiterating that the Board had wrongly precluded Dr. Webb from introducing textual evidence and that the Board's decision was unsupported by the evidence it did consider. The State responded that rehearing was unwarranted on the merits and, in addition, was precluded because Dr. Webb had not filed a sufficiently specific request for rehearing within the time provided to do so by BOMEX rule.

¶7 At oral argument on Dr. Webb's request for rehearing, the State again advanced its dual position (1) that Dr. Webb had untimely specified his grounds for rehearing and (2) that his specified grounds lacked merit. During the discussion that followed, none of the Board members who spoke addressed or endorsed the procedural question of timely specificity, whereas several addressed the merits.

¶8 Dr. Waldo, the first to do so, stated, "I recall the original hearing very well. I think Doctor Webb presented his case. I recommend that it be denied." Another Board member then formally moved to deny rehearing, without specifying the basis for his motion, and a third member seconded the motion, also without specifying the basis. Dr. Keen then spoke in favor of denying rehearing on the merits, stating, "legal procedures notwithstanding the merits of the case are such that I would not consider this worthy or necessary to reconsider." Ms. Dooley then spoke in favor of granting rehearing on the merits, stating:

We're dealing with human beings. A Decree of Censure, although I'm new on the board, that's about the most serious thing that can be given other than taking a doctor's license away. In reading the transcript and in reading what the doctor's care was it seems to me that he made an excellent effort on trying to care for the patient, the patient did not come back for care, and I understand I shouldn't be trying to second guess your decision on that portion of it, but I see a doctor here who's been in the medical profession for many years, I see that he made an honest effort and if he feels that his case was not heard by the board, that's kind of an unfair way for him to have to walk away from this room when he devoted as many years as he has. [It would not h]urt this board in any way to allow this fine physician to at least feel that he's been able to present his case properly. That's all I have to say.

¶9 Before the vote was taken, Dr. Webb's lawyer asked the chairman for a motion that would clarify "the reason that a rehearing is denied." The chairman declined to request such a motion, stating:

I'm not sure that is necessary but we have the reasons as expressed by Mr. McGee, the timeliness, and also have a statement by Doctor Keen regarding the medical issues involved. To me that seems you had two specific reasons expressed to you at this time.

BOMEX then voted six-to-three in favor of the motion to deny rehearing.

¶10 After BOMEX entered a formal order denying rehearing, Dr. Webb filed a timely complaint for judicial review, which BOMEX moved to dismiss on the ground that Dr. Webb had failed to properly and timely exhaust administrative remedies. The sole question considered by the trial court was whether Dr. Webb's letter of May 14, 1996, sufficed to meet the requirements of BOMEX's rehearing rule. Finding that it did not, the trial court concluded that Dr. Webb did not exhaust administrative remedies. From the trial court's judgment in favor of BOMEX, Dr. Webb files this timely further appeal.

II.

¶11 We consider whether the trial court correctly determined from the applicable statutes and administrative rules that judicial review of the administrative decision was barred due to Dr. Webb's failure to file an adequately specific motion for rehearing within the time prescribed. We review this determination de novo. See Owens v. City of Phoenix, 180 Ariz. 402, 405, 884 P.2d 1100, 1103 (App.1994).

¶12 We conclude that the trial court erred. This matter was litigated in the superior court, resolved by the superior court, and briefed and argued to this court upon the mistaken premise that, as a jurisdictional prerequisite to a complaint for judicial review of a BOMEX decision, the party seeking review must first exhaust all administrative remedies, including a timely request for rehearing by the Board.

¶13 Such was this court's holding in Rosen v. Board of Medical Examiners, 185 Ariz. 139, 143, 912 P.2d 1368, 1372 (App.1995). But our Rosen holding was recently expressly disapproved by our supreme court. See Southwestern Paint & Varnish Co. v. Arizona Dep't of Envtl. Quality, 1999 WL 138771 at *3, --- Ariz. ----, at p 12, 976 P.2d 872, at p 12 (1999). According to the Southwestern decision, although an administrative agency such as BOMEX must provide an opportunity for rehearing, a party aggrieved by an agency decision need not seek rehearing as a jurisdictional precondition to judicial review. Id. at p 13.

¶14 Here, Dr. Webb did request rehearing, and the parties debate the jurisdictional significance of the procedural deficiencies in his request. Our review of that question is informed, after the issuance of Southwestern, by the determination that the administrative rehearing process was one that Dr. Webb lacked any jurisdictional obligation to exhaust.

A.

¶15 The Board of Medical Examiners...