Ryan v. Department of Public Health, No. CV 01-0511526-S (CT 6/17/2004)

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Unpublished Opinion

John Ryan, Ph.D v. Department of Public Health.

No. CV 01-0511526-S

Superior Court of Connecticut

Judicial District of New Britain at New Britain

June 17, 2004

MEMORANDUM OF DECISION

TANZER, JUDGE.

This action is an administrative appeal from a decision of the Connecticut Board of Examiners of Psychologists (Board), dated September 28, 2001, to discipline the plaintiff, John D. Ryan (Plaintiff), a psychologist licensed by the state of Connecticut based upon a finding that the plaintiff had engaged in negligent, incompetent or wrongful conduct as a psychologist in violation of General Statutes §20-192. The disciplinary proceeding arose out of a complaint filed with the department of public health (Department), by the ex-husband (complainant or M.H.)¹ of a woman (L.H.) with whom the plaintiff allegedly had an inappropriate relationship during and/or after counseling. After investigation, the Department brought a disciplinary action in two counts.² In the first count of the Second Amended Statement of Charges, the Department charged the plaintiff as follows.

1. John Ryan of Southington . . . is, and has been at all times referenced in this Statement of Charges, the holder of Connecticut psychologist license number 001124.

2. During 1992 through about 1996, respondent was employed as a psychologist in Connecticut.

3. From 1992 through 1996, respondent treated L.H., a/k/a S.W., a/k/a S.H. (hereinafter "L.H.").

4. From 1992 through 1996, respondent treated the family of L.H., including her husband, M.H. and their children, S.H., L.H. and A.H.

5. During and/or after the end of L.H.'s treatment, respondent had an inappropriate personal relationship with L.H.

6. The above described facts constitute grounds for disciplinary action pursuant to the General Statutes of Connecticut § 20-192.

The Board conducted the hearings in accordance with chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA).³ On September 28, 2001, after seven days of hearings over nearly two years, the Board found the Department had sustained its burden of proof with regard to count one of the Charges.

In reaching its decision, the Board made the following findings of fact. The plaintiff began treating L.H.'s family in 1991. At that time, L.H.'s family consisted of her husband, M.H., Sr. and their children, a son (S.H.), two daughters and another son. S.H. was the first member of the family to be treated. The plaintiff is an expert on learning disability and attention deficit disorder. In December 1992, the plaintiff began individual therapy with L.H. and continued treating her until August 1996. The plaintiff treated L.H.'s family until May of 1997. The last family members to be treated were S.H. and M.H., Sr.

In the spring of 1996 and 1997, the plaintiff and L.H. took bike rides together. From June to October of 1997, L.H. called the plaintiff to his residence on 80 occasions, some of the phone conversations lasted up to seventy minutes. On Christmas day of 1997, L.H. told her husband that she wanted to call the plaintiff. In January 1999, L.H. and M.H. were divorced. In the spring of 1999, the plaintiff, began a sexual relationship with L.H. In October 1999, the plaintiff and L.H. started a business relationship. At the plaintiff's suggestion, L.H. bought the condominium unit where he was living and continued to live. The condominium is the only investment property that L.H. owns. Since L.H. purchased the property she has rented it to the plaintiff for $500 per month.

While the plaintiff had a professional relationship with L.H. and her family, he also had a personal relationship with L.H. that evolved into a romantic relationship. At all relevant times, the plaintiff was aware of Section 4.07 of the America Psychological Association's (APA) Ethical Principles of Psychologists and Code of Conduct (Ethical Principles), which states that psychologists shall not engage in sexual intimacies with former patients or clients for at least two years after cessation or termination of professional services. Section 1.17 of the APA's Ethical Principles states that psychologists shall refrain from entering a personal, financial or other relationship with a patient which may impair the psychologist's objectivity and which may harm or exploit the other person. The plaintiff engaged in a personal relationship with L.H. while L.H. was in a vulnerable situation because of her divorce circumstances and while L.H. was still in therapy with another psychologist. L.H.'s family was harmed by the divorce.

The Board's Memorandum of Decision indicates that it found by a preponderance of the evidence that the plaintiff violated Sections 4.07 and 1.17 of the APA's Ethical Principles and that the plaintiff likewise violated the standard of care.

The Board further found by a preponderance of the evidence that the plaintiff was negligent and used for judgment by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders.

The Board then ordered immediate revocation of the plaintiff's license.⁴

This Appeal followed. On appeal, the plaintiff claims that the Board acted illegally. He raises the following procedural and substantive irregularities. (1) the Board failed to give notice of a charge upon which it based its decision; (2) members of the Board predetermined the outcome before the hearings were complete; (3) members of the Board should have recused themselves; (4) the Board relied on improperly admitted evidence; (5) the plaintiff was not permitted to use treatment records of L.H. and M.H.; (6) excessive participation of the Board in the conduct of the hearing; (7) lack of substantial evidence in the record; (8) harshness of the penalty; and (9) violation of the right of free association. Those claims will be addressed in the order presented.

1. The plaintiff claims the Board based its decision to revoke the plaintiff's license in part upon findings and conclusions not set forth in the Department's Statement of Charges.

Before ordering that the plaintiff's license be revoked, the Board stated as follows.

[A]fter considering all the factors the Board concludes that respondent-violated section 4.07 of the APA's Ethical Principles. While respondent claims that he complied with the APA's Ethical Principles by waiting two years before engaging in sexual intercourse with L.H., any such technical compliance is below the standard of care. The APA's Ethical Principles requires a two year waiting period so that the transference phenomenon will dissipate during that time frame.

A preponderance of the evidence also establishes that respondent was negligent and used poor judgment by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders.

The plaintiff argues that the Statement of Charges does not contain allegations which would put him on notice of a claim that he was negligent by treating L.H. in individual therapy or that he exceeded the area of his expertise.

"No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of his license." General Statutes §4-182(c).

In the present case, the plaintiff was charged with having an inappropriate personal relationship with a patient. The record indicates the following. On December 30, 1999, a First Amended Statement of Charges was filed. The plaintiff filed a Motion for More Definite Statement,⁵ which was denied on January 27, 2000. Hearings commenced on January 28, 2000. A Second Amended Statement of Charges was filed on November 13, 2000, which made a technical correction. Throughout the trial, the plaintiff's counsel objected when a line of questioning went beyond the claims set forth in the Statement of Charges. At no time did the Department seek to amend the Statement of Charges to add a charge that the plaintiff was negligent by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders or that he practiced in an area of psychology for which he is not qualified. Rather, the Department's attorney maintained the position that "[w]hat we're trying to prove is exactly what's stated in the Statement of Charges, an inappropriate relationship."⁶

In Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 777, 761 A.2d 257 (2000), a claim of lack of notice was made. The court stated that the department's statement of charges "put the plaintiff on notice that the Board would investigate his deviation from the standard of care when he mis-diagnosed and misrepresented the dog's injuries and when he misrepresented the treatment of those injuries." Wasfi v. Dept. of Public Health, supra, 785. Although the plaintiff in Wasfi claimed that the statement of charges did not put him on notice that the Board would consider the appropriateness of the gauge of the suturing material used in the treatment of the dog, the court disagreed and held that the plaintiff was on notice that the Board, consisting of a majority of experts, would use its own expertise in determining whether the plaintiff's alleged acts conformed to the standard of care. Id., 786.

Similarly, Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 533, 560 A.2d 403 (1989), the respondent chiropractor claimed that the charges against him lacked the specificity required by the state and federal due process clauses and by the notice provision of the UAPA. In the first count, the charge stated a failure to diagnose properly. Levinson v. Board of Chiropractic Examiners, supra, 510-11. The board found that Levinson negligently failed to diagnose or treat the patient...