ENTRY ORDER

SUPREME COURT DOCKET NO. 1999-389

NOVEMBER TERM, 2000

 

Annette Lynch, MD

v.

Office of Professional Regulation

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APPEALED FROM:

Washington Superior Court

DOCKET NO. 121-3-98Wncv

Trial Judge: David A. Jenkins

 

In the above-entitled cause, the Clerk will enter:

Appellant Annette Lynch asks us to reverse a decision of the Board of Medical Practice revoking her license to practice medicine and establishing conditions for her reinstatement. On appeal she argues that she was improperly denied the opportunity to make an oral argument before the Board and that the Board's findings, specifically those regarding Lynch's violations of relevant standards of care, are not supported by the record. We affirm.

The following background findings by the Board are undisputed. Dr. Lynch received most of her professional training in Australia, where she specialized in gastroenterology. She did post-graduate work in England before teaching at a medical school in Philadelphia. Between 1980 and 1982, Lynch completed a two-year fellowship in child psychiatry at the Medical College of Pennsylvania. In 1986, after working at various mental health centers and hospitals, she began describing herself as a psychiatrist. In 1988, Lynch came to Vermont where she worked as a child psychiatrist at Rutland Mental Health Services for six months, after which she entered private practice. She is not eligible to be board certified in psychiatry. In Vermont, psychiatrists are not specifically licensed as psychiatrists; rather, practitioners are awarded a general license to practice medicine, allowing doctors to choose their own title or specialty.

The charges of unprofessional conduct before the Board of Medical Practice stem from Lynch's private practice. She was charged with thirteen counts of misconduct based on her care of a number of patients. After a sixteen-day hearing before a Board hearing committee, the committee submitted a final report to the Board. After modifying several findings in the report, the Board adopted it and issued a decision finding that Lynch had violated relevant standards of care with respect to ten patients. Lynch appealed the decision under 3 V.S.A.  130a to an appellate officer, who affirmed the decision of the Board. Lynch then appealed to the superior court, which likewise affirmed the decision. She now appeals to this Court.

Lynch's first argument on appeal is that she was improperly denied oral argument, which resulted in prejudice, requiring reversal of the Board's decision. See 3 V.S.A. 811 (requiring, under Administrative Procedure Act, an opportunity for oral argument before adoption of proposed adverse decision by an agency when a majority of members of decisional body have not heard the case or read the record). Lynch mistakenly submitted to the hearing panel her request for oral argument before the Board. The motion was included with other requests for relief. These other requests were properly directed to the hearing panel, but the panel also ruled on the motion for oral argument - denying it. Lynch did not, however, bring this error or her underlying request for oral argument to the attention of the Board. Arguably, because she did not bring the mistake to the attention of the Board, it should not be considered by this Court on appeal. See Brody v. Barasch, 155 Vt. 103, 108, 582 A.2d 132, 137 (1990) (plaintiff never raised issue of inadequacy of notice before the appeals officer and hence waived that issue); Hinckley v. Town of Jericho, 149 Vt. 345, 346, 543 A.2d 260, 261 (1988) (objections about notice of the hearing and procedures followed were not made before administrative body and were thus waived).

Nevertheless, even if the issue is properly before us, we cannot say that the mistaken denial of oral argument by the hearing committee in this case was an error of such magnitude as to require reversal. Reversal of a Board decision is warranted only if the claimed error, including statutory and procedural errors, prejudiced substantial rights of the individual charged with unprofessional conduct. See 3 V.S.A. 130a (in appeals from decisions of boards of professional regulation, appellate officer may reverse decision if substantial rights of appellant are prejudiced by an error of the board). This standard is analogous to the one found in V.R.C.P. 61 (allowing reversal of trial court only when claimed error affects substantial rights; reversal appropriate where refusal to do so is at odds with substantial justice). Thus, the decision of the Board should not be reversed unless the claimed error substantively and prejudicially affected Lynch. Cf. Hinckley, 149 Vt. at 346, 543 A.2d at 261 (applying Rule 61 analysis to determine whether claimed errors rendered proceedings fundamentally unfair); Ordinetz v. Springfield Family Ctr., Inc., 142 Vt. 466, 470, 457 A.2d 282, 284 (1983) (noting that when undertaking Rule 61 analysis, test requires examination of how court's ruling affected the rights of the party substantively, not merely procedurally).

Lynch's claim of prejudice rests primarily on her argument she might have persuaded the Board to alter some of its findings. As noted by another court, "[a]rgument by counsel serves only to elucidate the legal principles and their application to the facts at hand; it cannot create the factual predicate." Spradlin v. Lear Siegler Mgmt. Servs. Co., 926 F.2d 865, 869 (9th Cir. 1991). When there is a well-developed record and there has been an opportunity to present written legal argument, courts have concluded that the denial of oral argument is harmless. See, e.g., Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (despite mandatory nature of requirement in jurisdiction that oral argument be afforded to party prior to adverse decision on summary judgment motion, if no prejudice results it will not be considered reversible error - court discerned no prejudice where party had ample opportunity to develop factual record at administrative level); Spradlin, 926 F.2d at 869 (finding no prejudice flowing from denial of oral argument where party "had every opportunity in the court below to offer specific factual allegations in support of his arguments"); Bratt v. IBM Corp., 785 F.2d 352, 363-64 (1st Cir. 1986) (party had ample opportunity to develop both factual and legal arguments in the course of the proceedings, therefore no prejudice resulted from the denial of his request for oral argument). Here, the Board had all the evidence before it and had the benefit of a sixty-two-page brief from Lynch when making its final decision. Cf. Partridge, 141 F.3d at 926

(" 'When a party has [had] an adequate opportunity to provide the trial court with evidence and a memorandum of law, there is no prejudice [in a refusal to grant oral argument].' ") (quoting Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991)) (alterations in original). Thus, we likewise conclude that the lack of opportunity for oral argument is harmless.

Lynch also argues that the Board's findings are not supported by competent evidence in the record. We will not disturb findings of fact unless clearly erroneous, In re Smith, 169 Vt. 162, 174, 730 A.2d 605, 614 (1999), and will affirm the Board's conclusions as long as they are rationally derived from its findings and are based on a correct interpretation of the law. See Braun v. Bd. of Dental Exam'rs, 167 Vt. 110, 114, 702 A.2d 124, 127 (1997) ("we are concerned with the reasonableness of the Board's decision, not how we would have decided the case").

As part of her general argument regarding the Board's findings of misconduct, Lynch challenges the Board's use of treatises as evidence of the relevant standards of care. We note first that Lynch presented treatises to the Board without limitation on their use, and argued from them for this very purpose. (1) See State v. Longe, 170 Vt. 35, 39-40 n.*, 743 A.2d 569, 572 n.* (1999) (discussing invited error doctrine and noting "courts prevent a party from inducing an erroneous ruling and later seeking to profit from the legal consequences of having the ruling set aside") (internal quotation marks omitted); State v. Massey, 169 Vt. 180, 185, 730 A.2d 623, ___ (1999) (applying invited error doctrine and noting that a party must bear the responsibility for whatever prejudice flows from the admission of evidence it introduces). Additionally, given the more the liberal standards regarding the admission of evidence in administrative proceedings, 3 V.S.A. 810(1); In re Quechee Lakes Corp., 154 Vt. 543, 552, 580 A.2d 957, 962 (1990), we cannot say that the use by the Board of treatises and articles - introduced by both parties without objection - in evaluating whether Lynch's conduct violated the standard of care was error. Cf. Orasan v. Agency for Health Care Admin., Bd. of Med., 668 So. 2d 1062, 1063 (Fla. Dist. Ct. App. 1996) (holding hearing officer committed reversible error by failing to admit excerpts of medical texts and treatises offered by doctor in proceeding before board of medicine, given the relaxed evidentiary standard regarding hearsay in administrative proceedings). Nor has Lynch pointed to any authority for the proposition that a board of professional regulation may not rely on texts or periodicals as evidence of a standard of care.

Lynch also challenges a significant number of the Board's findings on an individual basis. With the exception of one finding of fact regarding a patient for whom Lynch prescribed methadone, (2) Lynch does not challenge the Board's findings regarding her behavior that form the factual predicate of its decision. Rather, she challenges the Board's determinations that her conduct violated the standard of care. As we noted in Braun, such determinations require applying the facts to a standard of reasonableness and, thus, we defer to the factfinder's determination of whether behavior rises to the level of violating the standard of care and constitutes misconduct. Braun, 167 Vt. at 114, 702 A.2d at 126. Furthermore, this Court will give deference to the Board in determinations that are within its expertise. See Vt. State Colls. Faculty Fed'n v. Vt. State Colls., 151 Vt. 457, 460, 561 A.2d 417, 419-20 (1989) (noting that Court will normally defer to determinations made within expertise of administrative agency); see also Escobar v. Dep't of Prof'l Regulation, Bd. of Med., 560 So. 2d 1355, 1356 (Fla. Dist. Ct. App. 1990) (noting court is required to defer to medical board's expertise in the practice of medicine when reviewing its determination that doctor acted with recklessness); Hart v. Bd. of Healing Arts, 2 P.3d 797, 801 (Kan. Ct. App. 2000) (agreeing with lower court's statement that deference should be given to expertise of medical board on matters involving standards of care); Sugarman v. Bd. of Registration in Med., 662 N.E.2d 1020, 1026 (Mass. 1996) (deferring to medical board's expertise in determining proper sanctions for misconduct by physicians); In re Johnston, 663 P.2d 457, 466 (Wash. 1983) (noting court must defer to knowledge and expertise of medical board in its evaluation of the evidence). The standard of care governing a medical professional is just such a determination. See Braun, 167 Vt. at 115, 702 A.2d at 127 (noting Board of Dental Examiners, comprised primarily of dental professionals, may apply its own expertise in evaluating evidence regarding whether dentist violated standard of care); see also Rajan v. State Med. Bd., 692 N.E.2d 238, 245 (Ohio Ct. App. 1997) (noting majority of medical board members possess specialized knowledge needed to determine the standard of care and whether physician's conduct falls below that standard).

With regard to Lynch's specific arguments concerning patients "I," "J," "K" and "L," Lynch essentially argues that the Board merely disagreed with her diagnoses and ensuing treatment, which she contends is an insufficient ground on which to base a finding that she violated the standard of care. To the contrary, the basis of the Board's finding of misconduct was not a finding that Lynch made incorrect diagnoses. Rather, it found that Lynch did not undertake sufficient investigation and examination before both diagnosing unusual and serious mental illnesses in these patients, and prescribing powerful medications to treat them. Additionally, the Board found that Lynch failed to adequately monitor the patients' response to their treatment regimes for adverse consequences or document her revolving course of prescriptions. In other words, the Board found that Lynch's methods leading to the diagnoses and her follow-up on these diagnoses, not the diagnoses themselves, fell below the standard of care.

There was ample evidence in the record to support these determinations. For instance, one expert definitively testified that with regard to patient I, Lynch's methodology used to arrive at the child's diagnosis, including her failure to obtain a consultation with another doctor, grossly deviated from the standard of care. And with regard to patient J, even Lynch's own expert testified that Lynch's documentation fell below the standard of care, and that the limited information found there did not form an adequate basis for a diagnosis.

Lynch also contends that the Board's findings that her care of patients "A," "B" and "D" fell below an acceptable standard are not supported by sufficient evidence, in part because the Board failed to take into account the patients' socio-economic status. The Board was not bound to accept Lynch's arguments that differing standards of care apply regarding patients of lower economic status. There was repeated expert testimony that a reasonable and prudent physician, when confronted with the circumstances of each of these patients, would not have engaged in conduct such as that engaged in by Lynch, including entering into employer-employee relationships, sharing other patients' information with them, engaging in heated arguments with the patients stemming from their nonpatient relationships and opening a trustee checking account for one patient with herself as trustee. Furthermore, the Board found that even evaluating Lynch's conduct using the comprehensive psychiatric rehabilitation model, which she argued is the model she used to treat such economically disadvantaged patients, (3) Lynch failed to adhere to the standard of care.

In sum, our review of the record, taking into consideration the Board's specialized expertise, reveals that the Board's findings are supported by the evidence and that its conclusions regarding Lynch's conduct are reasonable. Furthermore, the failure of the Board to rule on Lynch's motion for oral argument in this case did not result in prejudice that would require reversal. Accordingly, we discern no basis for disturbing the Board's disposition of this matter.

Affirmed.

BY THE COURT:

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Brian L. Burgess, District Judge
Specially Assigned

_______________________________________
Ernest W. Gibson III, Associate Justice (Ret.)
Specially Assigned

1. In her brief, Lynch indicates that some of the articles she introduced into evidence (she does not indicate which ones) "were expressly offered only to show the state of medical literature at the time in question concerning treatment of children for mania to show Dr. Lynch had a rational basis for what she did." (Emphasis added.) Lynch fails to explain how this is not evidence of whether Lynch was operating within accepted standards of care.

2. Lynch argues that the Board's factual finding that her prescription of methadone to patient "O" was for his addiction problem and not for treatment of back pain is erroneous. Physicians are required to obtain a license to prescribe methadone for treatment of addiction, and the Board concluded that Lynch's failure to do so, and failure to comply with the requirements such as documentation and patient monitoring that accompany such a license, violated the standard of care. Both patient O and his wife specifically testified that they had contacted Lynch to help O deal with his opiate addiction, and that was what was discussed during O's initial visit, at which his wife was present. O also testified that Lynch never examined his back in that first visit, yet he left with a prescription for methadone. To the extent that Lynch argues that this testimony should be disregarded because of patient O's drug addiction, criminal history and his animosity towards Lynch, such matters bear on credibility, a determination we have stressed is the province of the factfinder. Cabot v. Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997). Furthermore, this does not address the wife's testimony to the same effect, or testimony by a pharmacist that Lynch told him she had prescribed methadone for patient O to treat his addiction. Because the Board's determination regarding the purpose of the methadone prescription is supported by record evidence, we will not disturb it. Accordingly, Lynch's arguments regarding the prescription of methadone as a means to treat pain and the respective standard of care are not relevant and do not change the fact that the Board explicitly found that this was not the purpose of Lynch's prescription of methadone for patient O.

3. The Board also found that Lynch failed to meet the standard of care governing the community psychiatry model, after which it determined Lynch attempted to pattern her practice.