Solomon v. Connecticut Medical Examining Board

85 Conn. App. 854

859 A.2d 932

ABRAHAM SOLOMON v. CONNECTICUT MEDICAL EXAMINING BOARD.

(AC 24782).

Appellate Court of Connecticut.

Argued September 9, 2004.

Officially released November 9, 2004.

Foti, Dranginis and Flynn, Js.

Abraham Solomon, pro se, the appellant (plaintiff).

Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).

Opinion

DRANGINIS, J.

The pro se plaintiff, Abraham Solomon, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant, the Connecticut medical examining board. On appeal, the plaintiff raises sixteen claims as to why it was improper for the court to affirm the defendant's decision to revoke his license to practice medicine in this state. The claims may be distilled into two categories: (1) the plaintiff was denied due process of law and (2) there was insubstantial evidence to support the defendant's decision. We disagree with the plaintiff's claims and, accordingly, affirm the judgment of the trial court.

The following facts are pertinent to our decision. On February 20, 2001, the department of public health (department) presented the defendant with a motion for summary suspension of the plaintiff's license to practice medicine in this state, pursuant to General Statutes § 19a-17 (a) (7) (B)¹ and brought charges against him to revoke his license to practice medicine pursuant to General Statutes § 20-13c (4).² The defendant granted the motion to suspend the plaintiff's license, pending a final determination of the charges to revoke his license.

The department's charges against the plaintiff sounded in three counts.³ Count one alleged that on November 27, 2000, the commissioner of health in New York had summarily suspended the plaintiff's license to practice medicine in that state on the basis of allegations that his medical conduct was negligent, grossly negligent, incompetent and fraudulent.⁴ The department also asserted that the alleged facts constituted grounds for disciplinary action pursuant to § 19a-17 (a) (7) (B). Count two alleged that on various dates in 1999, the plaintiff was incompetent or negligent while attending to patients as an emergency department physician in various hospitals in the state of New York. Furthermore, the department asserted that the alleged facts constituted grounds for disciplinary action pursuant to § 20-13c (4).

A three member panel of the defendant held a hearing on several dates in 2001, during which evidence, including expert testimony, was presented.⁵ The panel submitted proposed findings of fact and a final decision to the defendant. The plaintiff represented himself at the hearing and before the board. The defendant reviewed the panel's proposed findings of fact, and the plaintiff exercised his right to challenge the factual findings in the panel's proposal. The defendant considered whether the plaintiff's practice of medicine poses a threat to the health and safety of any person, and rendered its decision on the basis of the record and its specialized professional knowledge. The defendant also took notice of the proceedings against the plaintiff in New York. See footnote 4.

The defendant found that the department had proved the allegations of the first count by a preponderance of the evidence and that the plaintiff was subject to disciplinary proceedings in this state. The defendant also found that the plaintiff's testimony was not credible, as his answers to questions posed at the hearing frequently were unresponsive, self-contradictory and evasive. His recollection was contradicted by a review of information in the charts of the patients under his care. With respect to the expert testimony, the defendant found that the department's expert was more credible than one of the plaintiff's experts. The second of the plaintiff's experts, the defendant found, was credible, but his testimony, in certain instances, substantiated the department's charges. The defendant found that the plaintiff was negligent and incompetent in his treatment of nine of the ten patients whose cases were presented to the board. The defendant found that the plaintiff did not practice medicine with reasonable skill and safety, and that his practice of medicine poses a threat to the health and safety of his patients. The defendant concluded, by a preponderance of the evidence, that the plaintiff's license was subject to disciplinary action pursuant to § 20-13c (4), and revoked his license to practice as a physician and surgeon in this state.

The plaintiff appealed pro se from the defendant's decision to the trial court pursuant to General Statutes § 4-166 et seq., the Uniform Administrative Procedures Act (UAPA). The court upheld the defendant's suspension of the plaintiff's license to practice medicine pursuant to § 19a-17 (a) (7) (B) and the revocation of the plaintiff's license pursuant to § 20-13c (4). As he has on appeal to this court, the plaintiff claimed in the trial court that his right to due process was violated because one member of the panel slept during portions of the hearing, one or two members of the panel at a time were absent from portions of the hearing and only one member of the panel was a physician. Following a hearing on those claims, the court concluded that the plaintiff had not been denied due process of law, as the record disclosed that the hearing was conducted in accordance with the UAPA. The court found that the transcript revealed that the member of the panel whom the plaintiff accused of sleeping during testimony was not inattentive and asked questions during the proceedings. Although during the hearing, which was held on six nonconsecutive days, each member of the panel was absent once pursuant to an excused absence, each member of the panel attested that he either had heard the case or read the record in its entirety, which complies with the provisions of General Statutes § 4-179.⁶ The court cited General Statutes § 20-8a, which provides that the defendant consist of fifteen members appointed by the governor. Five members are to be physicians practicing in this state, five members shall practice in allied medical fields and five members shall come from the general public. Charges filed against a physician by the department are to be referred to a panel of the department consisting of three members, one of whom is a member of the defendant board and one of whom is a member of the public. The court concluded that the composition of the panel comported with the dictates of the statute.

The court also concluded that there was substantial evidence in the record to support the defendant's finding that the plaintiff was negligent and incompetent in the practice of medicine in nine out of the ten cases reviewed. The court noted that the defendant's findings turned on issues of credibility and recognized that it must defer to the defendant's assessment of credibility. In conclusion, the court sustained the defendant's decision and dismissed the appeal. The plaintiff appealed to this court.

We first address the applicable standard of review. "We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [UAPA] .... Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . [Constrained by a narrow scope of review] [n]either this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

"The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA.. . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. . . . The present appeal is from the decision of the trial court. We review that decision only to determine whether it was rendered in accordance with the [UAPA]." (Citations omitted; internal quotation marks omitted.) Towbin v. Board of Examiners of Psychologists, 71 Conn. App. 153, 162-63, 801 A.2d 851, cert. denied, 262 Conn. 908, 810 A.2d 277 (2002).

I

The plaintiff has raised numerous issues, claiming that he was denied the constitutional right to due process. cess. More specifically, the plaintiff claims that the hearing to revoke his medical license failed to meet the minimum standards required by state and federal law, the panel was not comprised of experts in the field, the credentials of one of the panel members were misrepresented, the absences of panel members nullified the proceedings, the nonphysician members of the panel were not competent to give an opinion in this matter, the hearing was extended improperly beyond the 120 day deadline required by § 20-8a (g), the members of the...