ND State Board of Medical Examiners v. Hsu

20060134 North Dakota State Board
of Medical Examiners --
Investigative Panel B, Complainant, Appellant
and Cross-Appellee
v.
George S. Hsu, M.D., Respondent, Appellee
and Cross-Appellant

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Sonna M. Anderson
Nature of Action: Administrative Proceeding
Counsel:
Appellant: John M. Olson , Spec. Asst. Atty. Gen.
Appellee: Stefanson, Plambeck & Foss
Term: 10/2006   Argument: 10/18/2006  1:30pm
ND cite: 2007 ND 9
NW cite: 726 N.W.2d 216

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
ISSUE I. Did the district court err in finding that the Board failed to comply with N.D.C.C. 28-32-39(3)?
ISSUE II. Did the district court err in reversing the Board's Order of Revocation?
ISSUE III. Did the district court err in issuing an Order and Writ of Mandamus compelling the Board to adopt the ALJ's recommended sanction of monitoring? Issues from Reply Brief of Appellant
Issue I. The District Court erred 1) in finding that the Board failed to comply with N.D.C.C. 28.32-39(3), 2) by reversing the Board's revocation order, and 3) by issuing a Writ of Mandamus.
Issue II. The District Court did not err in finding that the preponderance of the evidence standard of proof is appropriate in disciplinary actions involving physicians.
Issue III. The District Court did not err in finding that there was no violation of due process because of the Board's choice of investigator.
Issue IV. The District Court erred in awarding Hsu attorney's fees and for finding that the Board's position was not substantially justified.

Appellee's Statement of the Issues:
I. The district court was correct in finding that the Board failed to comply with N.D.C.C. 28-32-39(3).
II. The district court was correct in reversing the Board's order of revocation.
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.
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.
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.

Reply Brief and Cross-Appellant Issues

I. The district court was correct in awarding attorney's fees to Doctor Hsu.
II. 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.
III. 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 Hsu.

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Docket entries:
105/05/2006 NOTICE OF APPEAL: 05/03/2006
205/05/2006 ANNOUNCED DISQUALIFICATION: Maring, Mary Muehlen
305/05/2006 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
405/19/2006 NOTICE OF CROSS APPEAL (filed in trial court on 5-17-06)
506/12/2006 APPELLANT BRIEF
606/12/2006 APPELLANT APPENDIX
706/13/2006 DISK - atb (emailed)
806/16/2006 Copies of Order for Judgment & Judgment dated 3-7-06 for ATA
906/19/2006 Referred by Clerk's Office--Appealability
1006/19/2006 ACTION BY CHIEF JUSTICE (MCL). Granted
1106/19/2006 ORDER OF REMAND (Sua Sponte by the Chief Justice)
1207/05/2006 RECORD ON APPEAL (with exception of #44--Court Reporter Notes) & Record of Board of Medical
1307/05/2006 Examiners (which contains Exhibits & Transcripts dated 11/21/03, 8/17-8/18/04 & 9-2-04)
1407/05/2006 DISK - tra (11/21/03, 8/17-18/04,& 9-2-04)(CD-part of Record of Medical Examiners as Entry No. 45B)
1507/11/2006 Second (Supplemental) Notice of Appeal from the Order on Attorney Fees
1607/11/2006 Clerk's Supplemental Certificate of Record on Appeal with entries 54 through 60 attached
1707/13/2006 APPELLEE BRIEF
1807/13/2006 APPELLEE APPENDIX
1907/14/2006 DISK - aeb
2007/27/2006 MOT. EXT/TIME REPLY BRIEF
2107/27/2006 ACTION BY CLERK (MRY). Granted: 08/04/2006
2208/04/2006 REPLY BRIEF of Appellant/Cross-Appellee
2308/04/2006 SUPPLEMENTAL APPENDIX OF APPELLANT
2408/04/2006 DISK of appellant/cross-appellee
2508/17/2006 REPLY BRIEF of Appellee/Cross-Appellant Dr. Hsu
2608/17/2006 Supplemental Appendix of Appellee/Cross-Appellant Dr. Hsu
2708/18/2006 Affidavit of Service of Reply Brief/Supplemental Appendix of Dr. Hsu by mail on 8/17/06
2808/18/2006 DISK - RYB of Appellee/Cross-Appellant Dr. Hsu
2909/22/2006 SITTING WITH THE COURT: Leclerc, Lawrence A.
3009/22/2006 SITTING WITH THE COURT: Schmalenberger, Allan L.
3110/02/2006 Request for Radio/TV Coverage (Prairie Public) e-mail from Jack McDonald dated 10/2/06 (AUTHORIZED)
3210/11/2006 Request for Radio/TV Coverage (KFYR - TV) e-mail from Jack McDonald dated 10/11/06 (AUTHORIZED)
3310/18/2006 APPEARANCES: John M. Olson; Randolph E. Stefanson, William Strutz & Dr. George Hsu
3410/18/2006 ARGUED: Olson; Stefanson
3510/18/2006 ORAL ARGUMENT WEBCAST
3601/23/2007 DISPOSITION (AND REMANDED): AFFIRMED/PT, REVERSED/PT
3701/23/2007 UNANIMOUS OPINION: VandeWalle, Gerald W.
3801/23/2007 Costs on appeal taxed in favor of Appellant
3901/23/2007 Judgment Mailed to Parties
4001/29/2007 Motion for Substitution of Pages (sua sponte)
4102/01/2007 ACTION BY SUPREME COURT (Substitute pages for Opinion). Granted
4202/01/2007 Substitute Opinion Pages 10-20
4302/14/2007 MANDATE
4402/16/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4502/21/2007 Corrected Opinion Page (10)

Generated from Supreme Court Docket on 10/01/2014