Supreme Court No. 20060134 District Court No. 08-05-C-00255
Supreme Court of the State of North Dakota
|NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS--INVESTIGATIVE PANEL B,|
|Complainant and Appellant,|
|George S. Hsu, M.D.,|
|Respondent, Appellee and Cross-Appellant|
BRIEF OF APPELLEE
|Randolph E. Stefanson, ID#02643|
|Kent B. Gravelle, ID#05967|
|403 Center Ave., Suite 302|
|P.O. Box 1287|
|Moorhead, MN 56561-1287|
|Attorneys for Appellee, George S. Hsu, MD|
TABLE OF CONTENTS
|Table of Authorities....ii|
|Law and Argument.1|
|I.||THE DISTRICT COURT WAS CORRECT IN FINDING THAT|
|THE BOARD FAILED TO COMPLY WITH N.D.C.C. §28-32-39(3)....1|
|II.||THE DISTRICT COURT WAS CORRECT IN REVERSING THE|
|BOARD'S ORDER OF REVOCATION.4|
|III.||THE DISTRICT COURT WAS CORRECT IN ISSUING AN ORDER|
|AND WRIT OF MANDAMUS COMPELLING THE BOARD TO|
|ADOPT THE ALJ'S RECOMMENDED SANCTION OF MONITORING..6|
|Law and Argument Regarding Cross-Appeal.13|
|IV.||THE DISTRICT COURT ERRED IN FINDING THAT THERE WAS NO|
|VIOLATION OF THE DUE PROCESS OR EQUAL PROTECTION|
|CLAUSES OF THE U.S. AND NORTH DAKOTA CONSTITUTIONS|
|BECAUSE PHYSICIANS ARE DISCIPLINED BASED ON THE|
|PREPONDERANCE OF THE EVIDENCE STANDARD WHILE|
|ATTORNEYS ARE DISCIPLINED UNDER THE CLEAR AND|
|CONVINCING EVIDENCE STANDARD..13|
|IV(a).||The Due Process Clause..13|
|IV(b).||The Equal Protection Clause16|
|V.||THE DISTRICT COURT ERRED IN FINDING THAT THERE WAS NO|
|VIOLATION OF THE DUE PROCESS CLAUSE OF THE U.S. AND|
|NORTH DAKOTA CONSTITUTIONS BECAUSE THE BOARD'S|
|INVESTIGATOR HAD PRIOR CONFLICTS WITH THE DOCTOR|
|HE WAS INVESTIGATING....19|
TABLE OF AUTHORITIES
|Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979)....14-15|
|Appeal of Schramm, 414 N.W.2d 31 (S.D. 1987)...16|
|Bland v. Commission on Medical Competency, 557 N.W.2d 379 (N.D. 1996)...22|
|Bottles v. Oklahoma State Board of Medical Licensure and Supervision,|
|917 P.2d 471 (Okla. 1996)...18|
|Davis v. Wright, 243 Neb. 931, 503 N.W.2d 814 (Neb. 1993)...17|
|Disciplinary Action Against Dvorak, 2000 ND 98, 611 N.W.2d 147...16|
|Disciplinary Bd. v. Dooley, 1999 ND 184, 599 N.W.2d 619.16|
|Ettinger v. Bd. of Medical Quality Assurance, 135 Cal.App.3d 853,|
|185 Cal.Rptr. 601 (1982)17|
|Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C.Cir.1970)...5|
|Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959)22|
|Gross v. Department of Health, 819 So.2d 997 (Fla. 5th DCA 2002)....5|
|Hart v. City of Albuquerque, 975 P.2d 366 (N.M. Ct. App. 1999)...12|
|Humenansky v. Minnesota Bd. Med. Exam'rs, 525 N.W.2d 559 (Minn.App.1994)..22|
|In re Zar, 434 N.W.2d 598 (S.D. 1989)...14-15|
|Johnson v. Bd. of Governors, 913 P.2d 1339 (Okla. 1996)...14-15, 20, 21|
|Larsen v. Commission on Medical Competency, 1998 ND 193, 58 N.W.2d 8015, 13|
|Levy, M.D. v. Texas State Board of Medical Examiners,|
|966 S.W.2d 813 (Tex.App.1998)...5|
|Morall, M.D. v. Drug Enforcement Administration, 412 F.3d 165 (D.C.Cir.2005).5|
|Nguyen v. Dept. of Health Medical Quality Assurance Comm.¸|
|29 P.3d 689 (Wash. 2001)....15-16|
|Painter v. Abels, D.O., 998 P.2d 931 (Wyo. 2000).17|
|Red River Valley Brick Corporation v. City of Grand Forks, 27 N.D. 431,|
|146 N.W. 876 (1914)9|
|Robinson v. Oklahoma State Board of Medical Licensure and Supervision,|
|916 P.2d 1390 (Okla. 1996)....18|
|Santosky v. Kramer, 455 U.S. 745, 756, 102 S.Ct. 1388, 1396,|
|71 L.Ed.2d 599 (1982)..15|
|Singha v. North Dakota State Board of Medical Examiners, 1998 ND 42,|
|574 N.W.2d 838..1|
|Walton v. North Dakota Department of Human Services,|
|552 N.W.2d 336 (N.D. 1996)..18|
|N.D.C.C. Art. 1, §9...23|
|N.D.C.C. §28-32-39(3).1-2, 5, 6, 10, 12, 22|
|N.D.C.C. Ch. 43-17....8|
LAW AND ARGUMENT
I. THE DISTRICT COURT WAS CORRECT IN FINDING THAT THE BOARD FAILED TO COMPLY WITH N.D.C.C. §28-32-39(3).
The Board is clearly an administrative agency governed by the procedures of the Administrative Agencies Practices Act (A.A.P.A.). Singha v. North Dakota State Board of Medical Examiners, 1998 ND 42, 574 N.W.2d 838. N.D.C.C. §28-32-39(3) is a part of the A.A.P.A. and it states:
3. If the agency head, or another person authorized by the
agency head or by law to issue a final order, is not presiding,
then the person presiding shall issue recommended findings
of fact and conclusions of law and a recommended order
within thirty days after the evidence has been received,
briefs filed, and arguments closed, or as soon thereafter as
possible. The recommended findings of fact and conclusions
of law and the recommended order become final unless
specifically amended or rejected by the agency head...If a
recommended order is issued, the agency must serve a copy of
any final order issued and the findings of fact and conclusions
of law on which it is based upon all the parties to the proceeding
within sixty days after the evidence has been received, briefs filed,
and arguments closed, or as soon thereafter as possible, in the
manner allowed for service under the North Dakota Rules of
The Board argues that it met the deadline imposed by N.D.C.C. §20-32-39(3), but that is clearly not the case. The ALJ issued his Recommended Findings of Fact, Conclusions of Law, and Order on November 26, 2003. (Appellant's Appendix at page 16). Thus, the Board had until late January of 2004 to issue "any final order". On March 19, 2004, the Board issued an Ex Parte Order of Temporary Suspension but that was not a "final order" and even if the Board had issued a final order on that day, it would have been approximately two months after the §20-32-39(3) deadline. (Appellant's Appendix at page 17). In fact, a "final order" was not issued by the Board until November 19, 2004, only a week shy of one year after the ALJ's November 26, 2003 Order. (Appellant's Appendix at page 37).
It is assumed that the purpose of N.D.C.C. §20-32-39(3) is to prevent administrative agencies from unduly delaying the resolution of matters previously decided by an ALJ. In this case, the Board should have adopted the ALJ's recommendations once it reached a stalemate in deciding what sanction to implement. Instead, it renewed its investigation into Doctor Hsu's files in the hopes of finding more "evidence" to sway those on the Board who were not in favor of revocation. As the District Court stated, "Deferring action is not a statutory option." (Appellant's Appendix at page 52).
The Board argues in its Brief that even if the Recommended Order was implemented by default in January of 2004, the Board could still revoke Doctor Hsu's license later that year for the three additional patient cases it brought against him in its March 19, 2004 Complaint. As stated by the ALJ and quoted verbatim in the District Court's Memorandum Opinion and Order:
The allegations of the second Complaint do not arise
until Dr. Hsu provided care to Patient 1 in late December
2003, to Patient 2 in early January 2004, and to Patient
3 in December 2003. The problem with saying Dr. Hsu
was put on notice that he needed to reform (and did not),
thus the allegations of the second Complaint should be
considered separate, is the short passage of time. True,
Dr. Hsu was put on notice as to the Board's concern, but
he was not put on notice as to the extent of the Board's
concern until later November 2003, and not as to the
results of the of the Board's concern at all. The Board
has not issued a final order. (Appellant's Appendix at page 60).
The Board should not be able to bring an action against Doctor Hsu, illegally fail to implement the ALJ's Recommended Order which would have required monitoring of Doctor Hsu's record-keeping practices, and then bring a new action months later again based largely on Doctor Hsu's record-keeping practices.
II. THE DISTRICT COURT WAS CORRECT IN REVERSING THE
BOARD'S ORDER OF REVOCATION.
Even if this Court rules that the Board could bring a new action against Doctor Hsu when the first complaint had not been resolved regarding similar subject matter, the District Court still ruled that "[t]he Board's rationale for not following the Recommendations of the ALJ issued on September 27, 2004 are not sufficient and are not based in the record on appeal." (Appellant's Appendix at page 65). The District Court explained that the Motion to revoke Doctor Hsu's license at the Board's March 19, 2004 meeting did not pass and that "[o]bviously, the standard of care as to the first seven patients was not such a serious departure from the norm to justify revocation." (Appellant's Appendix at page 62). The Court also pointed out that in the three subsequent patients, the Board found that two of the three patients received appropriate care and the received substandard care but the care was not "'grossly so.'" (Appellant's Appendix at page 62). The District Court found that the record did not support the revocation of Doctor Hsu's license. (Appellant's Appendix at page 62).
Addressing the Board's reasoning that Doctor Hsu's attitude justified a departure from the ALJ's recommendations, the District Court stated that "[a] review of the transcript of the hearings does not support a finding that Dr. Hsu was unreasonable or obstinate...Dr. Hsu has stated that he is willing to work with a mentor so that he can improve his record keeping and maintain his license as a practicing physician." (Appellant's Appendix at page 64). Regarding the Board's determination that monitoring would be unworkable, the District Court stated, "While it appears obvious that Dr. Hsu and certain members of the Board may find each other personally disagreeable, Dr. Hsu's ability to practice medicine should not be based upon the personalities of those involved." (Appellant's Appendix at page 64).
On page fifteen of its brief, the Board cites Larsen v. Commission on Medical Competency, 1998 ND 193, 585 N.W.2d 801 for the proposition that the Board's choice of sanction should not be overturned "unless it is unwarranted in law or without justification in fact." But the Board's "death penalty" sanction was unwarranted in law and in fact. In Larsen, a physician was found to have engaged in a sexual relationship with his patient, the ALJ recommended revocation of Larsen's license, and there was no violation of N.D.C.C. §28-32-39(3). In our case, the ALJ was only sure that Dr. Hsu was delinquent in his record-keeping, the ALJ's only recommended sanction was monitoring of Dr. Hsu's record-keeping, and there was a clear violation of N.D.C.C. §28-32-39(3) which converted the ALJ's recommended order into a binding order.
In addition, even if the ALJ's order was not a binding order, the Board still had to provide a reasoned analysis for its departure. "'The agency's departures from the ALJ's findings are vulnerable if they fail to reflect attentive consideration to the ALJ's decision." Morall, M.D. v. Drug Enforcement Administration, 412 F.3d 165, 177 (D.C.Cir.2005) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 853 (D.C.Cir.1970)). See also Gross v. Department of Health, 819 So.2d 997 (Fla. 5th DCA 2002) and Levy, M.D. v. Texas State Board of Medical Examiners, 966 S.W.2d 813 (Tex.App.1998).
As explained earlier in this section, the Board's reasoning for its departure was found by the District Court to have not been supported by the record. (Appellant's Appendix at pages 62-64). An analysis of this case as a whole reveals that there cannot be any sufficient reason for the Board's rejection of the ALJ's recommended sanction. While everyone agrees that administrative agencies should be provided deference, there comes a point when an agency's rulings run so counter to the facts, the law, and the opinions and orders of ALJs and district court judges that it becomes clear that the agency has made its decisions based on personal animus rather than on merit. This is one of those cases. The District Court was correct in finding that the Board's rationale for not following the ALJ's recommendations were not sufficient and were not based in the record on appeal.
III. THE DISTRICT COURT WAS CORRECT IN ISSUING AN ORDER AND WRIT OF MANDAMUS COMPELLING THE BOARD TO ADOPT THE ALJ'S RECOMMENDED SANCTION OF MONITORING.
The clearest way to approach this issue is to begin by quoting the relevant portions of the District Court's orders and the ALJ's recommended orders. On February 24, 2006, the District Court issued its Memorandum Opinion and Order holding that:
2. The Board did not have the authority to simply
'defer' action on the Recommended Order proposed by
the ALJ after the first hearing, and therefore, the initial
Recommended Order proposed by the ALJ on November
26, 2003 became final pursuant to N.D.C.C. §28-32-39(3)...
4. The Board's rationale for not following the
Recommendations of the ALJ issued on September 27,
2004 are not sufficient and are not based in the record on
appeal. (Appellant's Appendix at page 65).
The initial Recommended Order from the ALJ, dated November 26, 2003,
The greater weight of the evidence shows that Dr. Hsu
violated the provisions of N.D.C.C. §43-17-31(21) in that
he has engaged in a continued pattern of inappropriate care
as a physician in North Dakota with regard to the care he
has given to the seven patients that are the subject of the
Complaint. The ALJ recommends that the license to practice
medicine in North Dakota of Dr. Hsu be revoked, unless Dr.
Hsu agrees to the practice of medicine in North Dakota under
a system of monitoring and review as required by the Board
in its discretion. If Dr. Hsu agrees to a system of monitoring
and review of his practice of medicine in North Dakota as
required by the Board, the ALJ recommends that the Board
issue a letter of censure to Dr. Hsu for the violations proven
as a result of this hearing on the Complaint and that the letter
of censure include a statement of the Board's specific requirements
of a system of monitoring and review of Dr. Hsu's practice of
medicine in North Dakota. The system of monitoring and review of Dr. Hsu's practice of medicine in North Dakota shall be in place for a reasonable length of time as determined by the Board to
assure future compliance with the law by Dr. Hsu without
monitoring and review. At the end of the period of monitoring
and review, Dr. Hsu shall be reinstated to full standing as a
physician to practice medicine in North Dakota under the
provisions of N.D.C.C. Ch. 43-17....(Appellant's Appendix at
pages 15-16) [emphasis added]
With regard to the Board's assertion that monitoring of Doctor Hsu was unworkable, the District Court stated in both of its orders:
A review of the transcript of the hearings does not support a
finding that Dr. Hsu was unreasonable or obstinate...Dr. Hsu
has stated that he is willing to work with a mentor so that
he can improve his record keeping and maintain his license
as a practicing physician. The Board's subjective dismissal
of Dr. Hsu's willingness to try is not supported by the record
on appeal. (Appellant's Appendix at page 64) [emphasis added]
Dr. Hsu has indicated that he is willing to undergo supervision.
(Appellant's Appendix at page 95)
It was clear to everyone that read the District Court's February 24, 2006 Memorandum Opinion and Order, including attorneys, Doctor Hsu's former patients, Doctor Hsu's staff, and even the Associated Press that the District Court's Order required that the Board reinstate Doctor Hsu with reasonable monitoring. Thus, on February 24, 2006, the Board had two options: follow the District Court's order or appeal the Order to the North Dakota Supreme Court.
The Board did neither. Instead, on April 3, 2006, the Board flouted the authority of the District Court and issued an Order of Revocation contrary to the express direction of the District Court. (Appellant's Appendix, pages 67-75, 92). The Board justified the 2006 Order of Revocation by citing documents which had never previously been presented to the District Court. (Appellant's Appendix at pages 76-89, 94). In response to this unprecedented action by the Board, counsel for Doctor Hsu served and filed a Petition for Issuance of Writ of Mandamus and/or Motion For Order to Show Cause and a Brief in Support of Petition for Issuance of Writ of Mandamus and/or Motion For Order to Show Cause. (Appellee's Appendix at pages 26-28). Because the Board deliberately flouted the authority of the District Court as evidenced by its argument in its brief in opposition to the petition, counsel for Doctor Hsu, in addition to its Petition for a Writ of Mandamus, also requested that the District Court find the Board in contempt of court for failing to follow its Order, citing Red River Valley Brick Corporation v. City of Grand Forks, 27 N.D. 431, 146 N.W. 876 (1914) (governmental entity held in contempt by court). (Appellee's Appendix at pages 26-28).
On April 21, 2006, the District Court did grant the Petition for Writ of Mandamus but did not hold the Board in contempt of court. (Appellant's Appendix at pages 91-98). The Board now argues that the writ should not have been granted because Doctor Hsu did not have a clear right to mandamus and because the District Court cannot mandate an order for the Board where Doctor Hsu had an adequate remedy of appeal. Both arguments fail.
Regarding the Board's first argument, the Board correctly states that a petitioner for a writ of mandamus must demonstrate a clear legal right to the performance of the particular act sought to be compelled by the writ. As explained in more detail earlier in this Brief, the Board failed to heed N.D.C.C. §28-32-39(3) which explicitly states that a recommended order becomes final unless specifically amended or rejected by the administrative agency. As the District Court stated in its February 24, 2006 Memorandum Opinion and Order, "Deferring action is not a statutory option." (Appellant's Appendix at page 52) The Board could not decide whether to accept or reject the ALJ's recommended order, so the recommended order became final per the requirements of the statute. After the District Court's February 24, 2006 Order, the Board refused to implement the ALJ's recommended order, and thus, Doctor Hsu had a clear legal right to the performance of the particular act sought to be compelled by the writ.
The Board's second argument that the District Court cannot mandate an order for the Board where Doctor Hsu had an adequate remedy of appeal makes a mockery of the judicial process. The Board failed to follow the District Court's February 24, 2006 Order, issued an Order of Revocation, and then expected Doctor Hsu to appeal a second time to the District Court. Such an appeal would be a waste of not only Doctor Hsu's time and resources but also the resources of the North Dakota judicial system, as one must remember that the first request for reconsideration and appeal took over a year to resolve in the Burleigh County District Court.
The District Court agreed that such an exercise was, at best, misguided:
Apparently, the Court's decision of February 24, 2006
was not sufficiently clear to the Board. The Board's
rationale for not adopting the recommendations of the
ALJ are insufficient and not supported by the record on
appeal. The Order revoking Dr. Hsu's license was reversed.
If it was not explicitly clear in the earlier order, let it be
clear now. The Board is ordered to adopt the recommendations
of the ALJ as determined in his September 27, 2004 Order,
to wit that Dr. Hsu's license should be 'revoked unless Dr. Hsu
agrees to the practice of medicine in North Dakota under a
system of monitoring and review as required by the Board in
its discretion.' The matter was not remanded so that the Board
could dig around in its files and pull together some other
justification for not following the recommendations of the ALJ
which are not part of the record which was certified by the
Board. Dr. Hsu has demonstrated a clear legal right to the
performance of the act requested. It is apparent that the Board
was not thrilled with [the] result of the Administrative Appeal.
The Board's plain, speedy and adequate remedy in the ordinary
course of the law would be to file an appeal of this Court's
decision. They have not done so. Instead, the Board has issued a new order, not in compliance with the Court's decision
and invited Dr. Hsu to begin the entire appeal process over again. Clearly, Dr. Hsu has demonstrated that he has no plain, speedy and adequate remedy in the ordinary course of the law. (Appellant's
Appendix at pages 96-97) [emphasis added]
The Board also seems to be making a separation of powers argument, stating that mandamus cannot be used to usurp the Board's authority. Even if Hart v. City of Albuquerque, 975 P.2d 366 (N.M. Ct. App. 1999) is to be construed as applicable to North Dakota administrative law, the District Court still properly granted the Petition for Writ of Mandamus because the District Court merely followed the dictates of N.D.C.C. §28-32-39(3) which requires the implementation of a recommendation of an ALJ if an administrative agency has not decided whether to accept or reject the recommendation. The District Court did not craft its own remedy, it merely followed the law in enforcing the remedy crafted by the ALJ.
LAW AND ARGUMENT REGARDING CROSS APPEAL
IV. THE DISTRICT COURT ERRED IN FINDING THAT THERE WAS NO VIOLATION OF THE DUE PROCESS OR EQUAL PROTECTION CLAUSES OF THE U.S. AND NORTH DAKOTA CONSTITUTIONS BECAUSE PHYSICIANS ARE DISCIPLINED BASED ON THE PREPONDERANCE OF THE EVIDENCE STANDARD WHILE ATTORNEYS ARE DISCIPLINED UNDER THE CLEAR AND CONVINCING EVIDENCE STANDARD.
IV(a). The Due Process Clause
According to N.D.C.C. §28-32-19, medical license revocation proceedings in North Dakota are governed by the preponderance of the evidence standard. Such a low standard violates the Due Process Clause of the 14th Amendment of the federal and state constitutions because a revocation proceeding potentially takes away a private property interest, prohibits a doctor from practicing his profession, and subjects a doctor to public embarrassment using a burden of proof standard that is equivalent to that used in conciliation and civil court proceedings between private parties.
In its February 24, 2006 Memorandum Opinion and Order, the District Court, citing Larsen v. Commission on Medical Competency, 1998 ND 193, 585 N.W.2d 801, stated that "[t]he North Dakota Supreme Court has approved the use of the Preponderance of the Evidence as the standard imposed in the review of physician's licenses." (Appellant's Appendix at page 51). While the Larsen case did mention that the preponderance of the evidence standard was employed in the underlying medical revocation proceedings, there was no discussion whatsoever regarding whether the preponderance of the evidence standard is constitutional. No North Dakota case has addressed this issue.
However, the Supreme Court of South Dakota held in In re Zar, 434 N.W.2d 598 (S.D. 1989) that the preponderance of the evidence standard was too low of a standard for license revocation hearings and should be replaced by the clear and convincing evidence standard. The South Dakota Supreme Court explained:
In matters concerning the revocation of a professional license,
we determine that the appropriate standard of proof to be
utilized by an agency is clear and convincing evidence. We
set forth this higher standard of proof and limit its application
to professional license revocation proceedings because of the
importance of the interest involved, i.e., a professional's
career. FN8: 'The revocation of a license of a professional
person carries with it dire consequences. It not only involves
necessarily disgrace and humiliation, but it means the end of
his or her professional career.' In re Zar at 602 (quoting
Appeal of Schramm, 414 N.W.2d 31 (S.D. 1987)).
More recently, the Oklahoma Supreme Court held in Johnson v. Bd. of Governors, 913 P.2d 1339 (Okla. 1996), that the clear and convincing standard of proof must be applied to all professional disciplinary proceedings. Quoting the U.S. Supreme Court's decision in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979), the Oklahoma Supreme Court explained the reason for its decision:
In the case at bar, as in Addington, the interest of the defendant
are substantial. The defendant suffers the possible loss of a
constitutionally protected property right, the loss of a livelihood,
and the loss of a professional reputation. These losses are
greater than monetary losses. See Addington, 441 U.S. at 424,
99 S.Ct. at 1808; Santosky v. Kramer, 455 U.S. 745, 756,
102 S.Ct. 1388, 1396, 71 L.Ed.2d 599 (1982). The state has
an interest in the health, safety and welfare of its citizens. The
third concern is the risk of error. There is a high risk when an
agency seeks to revoke a professional license. As in this case,
revocation proceedings have the agency acting as investigator,
prosecutor, and decision maker. The risk is increased where,
as in this case, a competitor of the defendant serves as the
investigator and makes prosecutorial recommendation to the Board. Balancing the interest of the individual against the
interest of the state and taking into consideration the risk of an
erroneous decision, due process requires the Board prove its
case against Dr. Johnson by clear-and-convincing evidence.
Johnson at 1346. [emphasis added]
In Nguyen v. Dept. of Health Medical Quality Assurance Comm., 29 P.3d 689, 694 (Wash. 2001), the Washington Supreme Court held that medical disciplinary proceedings must be conducted under the clear and convincing standard of proof because the proceedings are "quasi criminal in that it is for the protection of the public, and is brought because of alleged misconduct of the doctor involved." Like the Oklahoma Supreme Court, the Washington Supreme Court looked to United States Supreme Court precedent in reaching its decision. Nguyen at 693.
In the district court proceedings, the Board referred to decisions from several other jurisdictions which have held that the preponderance of the evidence standard is appropriate in medical licensing proceedings. Our argument in response to those decisions is that it just does not make sense, constitutionally or in any other way, to apply the same lax standard to medical licensing proceedings, particularly license revocation proceedings, as to conciliation court and civil court proceedings. We ask that this Court follow the lead of the more enlightened state supreme courts cited above, including the supreme court of our neighboring state, South Dakota.
V(b). The Equal Protection Clause
Even if the Court determines that the use of the preponderance of the evidence standard in medical license revocation proceedings does not violate the Due Process Clause, such a standard still violates the Equal Protection Clauses of the U.S. and North Dakota constitutions because North Dakota imposes the more rigorous clear and convincing standard in attorney disciplinary proceedings. "Disciplinary counsel must prove each alleged violation of the disciplinary rules by clear and convincing evidence." Disciplinary Action Against Dvorak, 2000 ND 98, ¶8, 611 N.W.2d 147, 150 (citing Disciplinary Bd. v. Dooley, 1999 ND 184, ¶28, 599 N.W.2d 619)). It is wrong to impose one standard on the medical profession and another on the attorney profession.
The Supreme Court of Nebraska addressed this issue in Davis v. Wright, 243 Neb. 931, 503 N.W.2d 814, 818-19 (Neb. 1993), stating that, "We see no justification for differentiating between the two professions in this regard and hold that the allegations made in disciplinary proceedings in either case must be proved by clear and convincing evidence." Like North Dakota, Wyoming also required that physicians be subjected to a lesser burden of proof than attorneys until the Wyoming Supreme Court righted the situation by holding that there was no rational basis for a statute requiring a lesser burden of proof against a physician. Painter v. Abels, D.O., 998 P.2d 931, 940 (Wyo. 2000). Finally, the California Court of Appeals explained and held in Ettinger v. Bd. of Medical Quality Assurance, 135 Cal.App.3d 853, 856, 185 Cal.Rptr. 601, 603 (1982) as follows:
Since it is apparent that the underlying purpose of
disciplining both attorneys and physicians is
protection of the public, it would be anomalous to
require a higher degree of proof in disciplinary
hearings involving attorneys or real estate agents
that in hearings involving physicians. Accordingly,
we hold that the proper standard of proof in an
administrative hearing to revoke or suspend a
doctor's license should be clear and convincing
proof to a reasonable certainty, and not a mere
preponderance of the evidence. [emphasis in the
The Board previously argued in the district court proceedings that it does not matter what standard of proof is employed in this case, but the Oklahoma Supreme Court reversed and remanded a decision by the Oklahoma medical board to revoke a physician's license solely for the reason that the medical board failed to employ the clear and convincing evidence standard. "Because we reverse based on the standard of proof, we need not address the remaining issues." Bottles v. Oklahoma State Board of Medical Licensure and Supervision, 917 P.2d 471 (Okla. 1996). In fact, in Robinson v. Oklahoma State Board of Medical Licensure and Supervision, 916 P.2d 1390 (Okla. 1996), the Oklahoma Supreme Court stopped the Oklahoma medical board in midstream just prior to a disciplinary hearing, requiring the board to employ the clear and convincing evidence standard instead of the preponderance of the evidence standard. See also Walton v. North Dakota Department of Human Services, 552 N.W.2d 336 (N.D. 1996) ("...the Department's erroneous allocation of the burden of proof is reversible error."). To argue that it does not matter what standard of proof is used seems to indicate that the Board does not take seriously its obligation to operate within the confines of the legal system.
It is time for North Dakota to stop imposing two different standards with regard to the imposition of discipline against lawyers and doctors. Both professions require many years of educational investment and training which should not be snuffed out by an administrative agency using a preponderance of the evidence standard. The evidentiary standard for doctors should be risen to the same level as that used in attorney disciplinary proceedings.
V. THE DISTRICT COURT ERRED IN FINDING THAT THERE WAS NO VIOLATION OF THE DUE PROCESS CLAUSE OF THE U.S. AND NORTH DAKOTA CONSTITUTIONS BECAUSE THE BOARD'S INVESTIGATOR HAD PRIOR CONFLICTS WITH THE DOCTOR HE WAS INVESTIGATING.
The District Court stated in its February 24, 2006 Memorandum Opinion and Order that because there was not a clear consensus by the Board as to what sanction to impose suggested that the Board was not biased against Doctor Hsu. (Appellant's Appendix at page 49). But if the investigator appointed by the Board had been impartial, perhaps there would have never even been a disciplinary hearing.
The Board has an obligation to appoint investigators who do not have a conflict with the doctor being investigated. The investigator in this case, Doctor Craig Lambrecht, had a conflict with Doctor Hsu. Doctor Lambrecht's mother was denied a position as an occupational health nurse with the North Dakota National Guard only after Doctor Hsu complained to General Macdonald that Doctor Lambrecht's mother had been sleeping with the command Sergeant Major. In his August 1, 2005 affidavit, General Macdonald confirmed that the accusations were made and that, in his opinion, "...it was inappropriate for Doctor Craig Lambrecht to investigate Doctor George S. Hsu. (See Appellee's Appendix at pages 22-23). An affidavit from a nurse formerly in the North Dakota National Guard also confirmed that Doctor Hsu made the allegations to General Macdonald and that she informed Rolf Sletten of Doctor Lambrecht's conflict of interest prior to the Board hearings against Doctor Hsu. (See Appellee's Appendix at pages 24-25). In addition, point four of Doctor Hsu's December 16, 2004 pro se Petition for Reconsideration also emphasized Doctor Lambrecht's conflict of interest. (Appellee's Appendix at page 1).
To our knowledge, no North Dakota case law exists regarding conflicts of interests between medical board investigators and the subject of their investigation. Case law in other states, however, hold that even investigators from the same geographical region as the person under investigation should be barred because the investigator may have a "pecuniary interest in the outcome of the proceedings." Johnson v. Bd. of Governors, 913 P.2d 1339, 1348 (Okla.1996).
Besides the clear personal conflict of interest described above, Doctor Lambrecht also had the financial motives as described in Johnson. For instance, Doctor Lambrecht is employed by Medcenter One in Bismarck, North Dakota, an institution that had much to gain if the farmers and ranchers in the Elgin, North Dakota area switched from Doctor Hsu's clinic to Medcenter One's Elgin clinic. (August 17-18, 2004 hearing transcript at page 569). Email evidence showing collusion between Doctor Lambrecht and Kurt Waldbillig, Medcenter One's Elgin, ND hospital administrator, was presented to the Board at the August 17-18, 2004 hearing in Defendant's Exhibits L and M. In one of the emails (second page of Exhibit L), Doctor Lambrecht told Kurt Waldbillig that he "[m]ight want to look into this and bring it to Rolf's [Sletten's] attention." As the trial hearing counsel argued, complaints should arise from the public and not from the Board's investigator, but the Board could not rely on the public's help in this case as Doctor Hsu has never even had a medical malpractice suit brought against him at any time during his career and has, in fact, enjoyed wide community support during the entirety of these proceedings. (August 17-18, 2004 hearing transcript at page 677 and Appellant's Appendix at page 21).
Doctor Hsu and other doctors that come before the Board have a constitutional right to be investigated by an investigator who does not have a personal or financial conflict of interest. Such a right is not too much to ask of the Board and could be remedied by a preliminary conflict check prior to the investigation in each case. "As the trial judge noted, these constitutional ramifications could easily be avoided by selecting an investigatory and prosecutorial officer from a different region than the subject of the investigation." Johnson v. Bd. of Governors, 913 P.2d 1339, 1349 (Okla. 1996). In this case, not only did the Board subject Doctor Hsu to an investigator with a financial conflict of interest such as in Johnson but a personal conflict of interest as well.
The Board has attempted to dismiss this entire argument by emphasizing that Doctor Lambrecht only performed investigatory functions and did not participate in the adjudicatory functions of the Board, per the requirements of N.D.C.C. §43-17-07.2. But a biased investigator could spin the facts and probably convince a medical board to sanction any doctor as a result of the inevitable deaths that occur when practicing medicine over a long period. The Board's argument is not a defense as shown by the fact that the investigator with a possible financial conflict in Johnson was also barred from sitting as an adjudicator. "The Board most likely recognized the conflict when it exempted the investigatory officer who was from the same district as the subject of the investigation from sitting as an adjudicator." Johnson at 1348.
Doctor Lambrecht's conflicts with Doctor Hsu violated Doctor Hsu's right to due process as protected under the United States and North Dakota Constitutions. N.D.C.C. Art. 1, §9. "A license to practice medicine is a property right deserving constitutional protection, including due process." Bland v. Commission on Medical Competency, 557 N.W.2d 379 (N.D. 1996) (quoting Humenansky v. Minnesota Bd. Med. Exam'rs, 525 N.W.2d 559, 566 (Minn.App.1994) and Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959)).
The Board has abused its discretion in a multitude of ways with respect to this case. The District Court recognized this with regard to two issues: the failure of the Board to abide by N.D.C.C. §28-32-39(3) and its failure to rationally justify its departure from the ALJ's recommendations. In addition, as argued in our cross appeal, the Board's procedures failed to observe Doctor Hsu's constitutionally protected rights.
Thus, we request that this Court affirm the District Court with regard to N.D.C.C. §28-32-39(3) and the Board's failure to rationally justify its departure from the ALJ's recommendations and reverse the District Court with regard to Doctor Hsu's constitutionally protected rights so that no other doctor in the State of North Dakota need ever again confront the stacked deck that Doctor Hsu confronted over the past three and one-half years. We also request that this Court affirm the writ of mandamus entered by the District Court in response to the Board's outrageous second license revocation order.
Respectfully submitted this day of July, 2006.
|Randolph E. Stefanson, #02643|
|Kent B. Gravelle, #05967|
|403 Center Ave., Suite 302|
|P.O. Box 1287|
|Moorhead, MN 56561-1287|
|ATTORNEYS FOR APPELLEE,|
|GEORGE S. HSU, M.D.|