Zawaideh v. Neb. Dept. of Health and Human Serv. Regulation and Licensure
| Decision Date | 07 January 2011 |
| Docket Number | No. S-10-158.,S-10-158. |
| Citation | 280 Neb. 997,792 N.W.2d 484 |
| Parties | Ziad L. ZAWAIDEH, M.D., appellant, v. NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION AND LICENSURE and State of Nebraska ex rel. Jon Bruning, Attorney General, appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Dismiss: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing a dismissal order, an appellate court accepts as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the pleader's conclusions.
3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, the pleader must allege sufficient facts, taken as true, to state a claim to relief that is plausible on its face.
4. Actions: Evidence. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.
5. Rules of the Supreme Court: Constitutional Law. Strict compliance with Neb. Ct. R.App. P. § 2-109(E) is required for the Nebraska Supreme Court to address a constitutional claim.
6. Due Process. Due process claims are generally subjected to a two-part analysis: (1) Is the asserted interest protected by the Due Process Clause and (2) if so, what process is due?
7. Due Process: Notice. Procedural due process limits the ability of thegovernment to deprive persons of interests which constitute "liberty" or "property" interestswithin the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard.
8. Due Process. The concept of due process embodies the notion of fundamental fairness and defies precise definition.
9. Parties: Appeal and Error. Only a party aggrieved by an order or judgment can appeal, and one who has been granted that which he or she sought has not been aggrieved.
10. Parties: Appeal and Error. A party is not entitled to prosecute error upon that which was made with his or her consent.
11. Compromise and Settlement: Judgments. Where a doubt as to the law has been settled by a compromise, a subsequent judicial decision upholding a view favorable to one of the parties affords no basis for that party to upset the compromise.
12. Courts: Pleadings. Courts are not required to accept as true legal conclusions or conclusory statements in a pleading—instead, while legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.
13. Fraud: Proof. To prove fraudulent concealment, a plaintiff must prove these elements: (1) The defendant had a duty to disclose a material fact; (2) the defendant, with knowledge of the material fact, concealed the fact; (3) the material fact was not within the plaintiff's reasonably diligent attention, observation, and judgment; (4) the defendant concealed the fact with the intention that the plaintiff act or refrain from acting in response to the concealment or suppression; (5) the plaintiff, reasonably relying on the fact or facts as the plaintiff believed them to be as the result of the concealment, acted or withheld action; and (6) the plaintiff was damaged by the plaintiff's action or inaction in response to the concealment.
14. Contracts: Fraud. One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the non-existence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
15. Fraud. In fraudulent concealment cases, existence of a duty to disclose the fact in question is a matter for the determination of the court, although, if there are disputed facts bearing upon the existence of the duty, they are to be determined by the trier of fact under appropriate instructions as to the existence of the duty.
16. Contracts. A fact basic to a transaction is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, and they may be material, but they are not basic.
17. Fraud. A statement that is true but partial or incomplete may be a misrepresentation, because it is misleading when it purports to tell the whole truth and does not.
18. Fraud. A statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue. When such a statement is made, there is a duty to disclose the additional information necessary to prevent it from misleading the recipient.
19. Fraud: Intent. Whether or not a partial disclosure of the facts is a fraudulent misrepresentation depends upon whether the person making the statement knowsor believes that the undisclosed facts might affect the recipient's conduct in the transaction in hand. The recipient is entitled to know the undisclosed facts insofar as they are material and to form his or her own opinion of their effect.
William M. Lamson, Jr., and Denise M. Destache, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellant.
Jon Bruning, Attorney General, and Michael J. Rumbaugh, Lincoln, for appellees.
Nebraska's Uniform Credentialing Act (UCA) 1 regulates persons providing health and health-related services. The UCA permits complaints against a credential holder to be resolved by entry of an "assurance of compliance," a voluntary agreement between the Attorney General and the credential holder that the credential holder will not engage in specified conduct. The appellant in this case, Ziad L. Zawaideh, M.D., entered into such an assurance of compliance. He asserts that although the assurance of compliance was not supposed to be a disciplinary sanction, it actually had the effect of one because of its collateral consequences on his career.
The primary issue Zawaideh presents in this appeal is whether the execution of the assurance of compliance, and the Attorney General's refusal to vacate it, deprived Zawaideh of due process of law. We find no merit to Zawaideh's due process arguments. But we do find that Zawaideh has alleged sufficient facts to at least state a claim for fraudulent concealment, and we reverse the district court's order of dismissal to that extent.
The UCA provides for the credentialing of persons and businesses that provide health, health-related, and environmental services,2 including physicians.3 We are aware that the UCA has been substantially recodified since some of the underlying events in this case took place 4; however, Zawaideh's arguments appear to be directed at the statutes as they currently exist, and neither party has identified any relevant changes; so for the sake of simplicity and convenience, we cite to the current statutory scheme.
When a complaint is made against a credential holder pursuant to the UCA, the Division of Public Health of the Department of Health and Human Services (Department) is responsible for the initial investigation.5 The Department is required, for most professions or businesses, to provide the Attorney General with a copy of all complaints it receives and advise the Attorney General of any investigation that may involve a credential holder's violation of statutes, rules, or regulations.6 The Attorney General then determines whatstatutes, rules, or regulations may have been violated and the appropriate legal response.7
One of the Attorney General's options is to refer the matter to the appropriate professional board for the opportunity to resolve the matter by recommending that the Attorney General enter into an assurance of compliance with the credential holder in lieu of filing a disciplinary petition.8 Upon the board's advice, the Attorney General may contact the credential holder to agree to an assurance of compliance.
The assurance shall include a statement of the statute, rule, or regulation in question, a description of the conduct that would violate such statute, rule, or regulation, the assurance of the credential holder that he or she will not engage in such conduct, and acknowledgment by the credential holder that violation of the assurance constitutes unprofessional conduct. Such assurance shall be signed by the credential holder and shall become a part of the public record of the credential holder. The credential holder shall not be required to admit to any violation of the law, and the assurance shall not be construed as such an admission[.] 9
The UCA expressly provides that "[a]n assurance of compliance shall not constitute discipline against a credential holder." 10
The district court dismissed Zawaideh's complaint in this case pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6). As a result, the following facts are taken from the allegations made in the complaint 11:
Zawaideh alleged that he is a physician, licensed by and practicing in the State of Nebraska. In 2006, the Department began an investigation into a case involving obstetrical care Zawaideh provided to a patient in 2001. Terri Nutzman, an assistant attorney general, sent Zawaideh a proposed petition for disciplinary action and offered the option of an agreed settlement that would have constituted a disciplinary action against Zawaideh's license. Zawaideh refused, denying any unprofessional...
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