Opinion
No. HHB-CV-10-6004778 S
June 10, 2011
MEMORANDUM OF DECISION ON APPEAL
The plaintiff, Charles Ray Jones, M.D. (Dr. Jones) appeals from a final decision of the Connecticut Medical Examining Board (Board) dated March 16, 2010 concerning two of three petitions brought by the Connecticut Department of Public Health (Department). The third petition was dismissed by the Board in its decision.
The grounds of appeal are stated as follows: Dr. Jones' substantial rights have been prejudiced in that the final decision (1) violates constitutional and statutory provisions and was made upon unlawful procedure constituting a violation of procedural and substantive due process and reasoned decision-making in violation of Article First, § 8 of the Constitution of the State of Connecticut, the Fourteenth Amendment to the Constitution of the United States and the (Connecticut) Uniform Administrative Procedure Act; (2) is clearly erroneous in view of the reliable, probative and substantial evidence on the record in that the Board found that Dr. Jones violated standards of care for treatment of patients for Lyme disease based upon standards of care not previously recognized, utilized an inappropriate standard of proof and imposed a disproportionate penalty; and (3) is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion in that the decision imposes substantial and unreasonable burdens on Dr. Jones' practice and inappropriately interferes with his professional judgment and subjects his patients to unrecognized standards of care, contrary to the public interest and which violate the doctor-patient relationship and the rights of parents to make medical decisions for their children. 100.31, Appeal. The Board denies the allegations of Dr. Jones. 106.00, Answer.
In his brief, Dr. Jones claims (1) the Board improperly disciplined him for issues not alleged in the statement of charges; (2) the Board's conclusion that Dr. Jones ordered tests before seeing the patients was contrary to the evidence; and (3) the incorrect standard of proof was applied. 115.00, Plaintiff's Brief.
PROCEDURAL HISTORY:
On November 9, 2006, the Department presented the Board with a statement of charges against the plaintiff's license. Administrative Record (AR) Vol. 2, p. 8. The statement was amended by motion on February 25, 2008. AR Vol. 2, p. 14. There were three counts. Count Three was dismissed by the Board and is not the subject of this appeal. AR Vol. 1, p. 12, Memorandum of Decision, p. 11.
Count One of the Amended Statement of Charges alleged that Dr. Jones deviated from the standard of care by (1) ordering laboratory studies for two minors without having taken a history or conducted a physical examination; (2) ordering laboratory studies for one of the minors who had no symptoms of any illness; and/or (3) ordering a test which was known to be unreliable. Count Two alleged that Dr. Jones (1) failed to make a differential diagnosis; (2) failed to make an adequate differential diagnosis; (3) ordered laboratory tests without examining the minor patient and/or taking her medical history; and/or (4) placed a new patient on antibiotics for four weeks without examining her and/or taking her medical history. AR Vol. 2, pp. 8-11.
Following a hearing which consumed eight days over the course of a year's time, the Board issued its Memorandum of Decision on March 17, 2010. AR Vol. 1, p. 2. As to the three charges of Count One, the Board found only one proven, that Dr. Jones failed to conduct a physical examination, prior to ordering laboratory studies. The Board further found, "[Dr. Jones] made a diagnosis of Lyme disease without considering a differential diagnosis, and ordered laboratory tests only to confirm Lyme disease even though the symptoms relayed to [Dr. Jones] by [the minors' grandmother] were nonspecific. This failure to consider a differential diagnosis violates the standard of care." AR Vol. 1, p. 9.
As to the four charges of the Count Two, the Board found that Dr. Jones provided care to the minor child without examining her, relying on information obtained by his assistant in a telephone survey to the minor's mother; diagnosed the patient without examining her; prescribed, and continued to prescribe, medications without seeing the patient until four weeks thereafter. AR Vol. 1, p. 9. "[Dr. Jones] deviated from the applicable standard of care in that he failed to make a differential diagnosis. The applicable standard of care requires that in order to make an adequate differential diagnosis an adequate medical history must be taken; a physical examination made, and any appropriate diagnostic tests be ordered based on the physical examination." AR Vol. 1, p. 10.
Based upon its findings and conclusions of deviation from the applicable standard of care, the Board ordered disciplinary action pursuant to General Statutes §§ 19a-17 and 20-13c, AR Vol. 1, p. 13. Dr. Jones has appealed the findings and the disciplinary action.
General Statutes § 19a-17(a) states in relevant part:
Each board or commission established under chapters 369 to 376, inclusive, 378 to 381, inclusive, and 383 to 388, inclusive, and the Department of Public Health with respect to professions under its jurisdiction that have no board or commission may take any of the following actions, singly or in combination, based on conduct that occurred prior or subsequent to the issuance of a permit or a license upon finding the existence of good cause:
(1) Revoke a practitioner's license or permit;
(2) Suspend a practitioner's license or permit;
(3) Censure a practitioner or permittee;
(4) Issue a letter of reprimand to a practitioner or permittee;
(5) Place a practitioner or permittee on probationary status and require the practitioner or permittee to:
(A) Report regularly to such board, commission or department upon the matters which are the basis of probation;
(B) Limit practice to those areas prescribed by such board, commission or department;
(C) Continue or renew professional education until a satisfactory degree of skill has been attained in those areas which are the basis for the probation;
(6) Assess a civil penalty of up to twenty-five thousand dollars . . .
General Statutes § 20-13c states:
The board is authorized to restrict, suspend or revoke the license or limit the right to practice of a physician or take any other action in accordance with section 19a-17, for any of the following reasons: (1) Physical illness or loss of motor skill, including, but not limited to, deterioration through the aging process; (2) emotional disorder or mental illness; (3) abuse or excessive use of drugs, including alcohol, narcotics or chemicals; (4) illegal, incompetent or negligent conduct in the practice of medicine; (5) possession, use, prescription for use, or distribution of controlled substances or legend drugs, except for therapeutic or other medically proper purposes; (6) misrepresentation or concealment of a material fact in the obtaining or reinstatement of a license to practice medicine; (7) failure to adequately supervise a physician assistant; (8) failure to fulfill any obligation resulting from participation in the National Health Service Corps; (9) failure to maintain professional liability insurance or other indemnity against liability for professional malpractice as provided in subsection (a) of section 20-11b; (10) failure to provide information requested by the department for purposes of completing a health care provider profile, as required by section 20-13j; (11) engaging in any activity for which accreditation is required under section 19a-690 or 19a-691 without the appropriate accreditation required by section 19a-690 or 19a-691; (12) failure to provide evidence of accreditation required under section 19a-690 or 19a-691 as requested by the department pursuant to section 19a-690 or 19a-691; (13) failure to comply with the continuing medical education requirements set forth in section 20-10b; or (14) violation of any provision of this chapter or any regulation established hereunder. In each case, the board shall consider whether the physician poses a threat, in the practice of medicine, to the health and safety of any person. If the board finds that the physician poses such a threat, the board shall include such finding in its final decision and act to suspend or revoke the license of said physician.
STANDARD OF REVIEW:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.
General Statutes Section 4-183(j).
"Judicial review of an administrative agency's decision differs depending on whether the court is reviewing a factual or a legal determination. When "the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence." (Emphasis in original; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 721, 780 A.2d 1 (2001). Under this standard, the "[c]onclusions reached by [the board] must be upheld by the [reviewing] court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the [reviewing] court would have reached the same conclusion . . . but whether the record before the [board] supports the decision reached . . . If a [reviewing] court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008). When the administrative agency has made a legal determination, however, the scope of review is ordinarily plenary. Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 721. "Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. [In turn] [t]he trial court ha[s] to decide whether the board correctly interpreted the [applicable regulations] and applied [them to the facts] with reasonable discretion . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . [T]he plaintiffs bear the burden of establishing that the board acted improperly." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697-98, 784 A.2d 354 (2001).
Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . [ Id.]
Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 32-34 A.3 (2011).
"Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically could follow from those facts." [Internal citation omitted.] Lewin v. FOIC, 91 Conn.App. 521, 525, 881 A.2d 519 (2005).
In reviewing the claims made by the plaintiff, the court follows the "substantial evidence test" of the Uniform Administrative Procedure Act. "In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to try the case de novo, . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Citation omitted; internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
The court must 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." [(Citations omitted.] Dufraine v. Commission on Human Rights and Opportunities, 236 Conn. 250, 259, 673 A.2d 191 (1996); Adriani v. Commission on Human Rights and Opportunities, 220 Conn. 307, 314-15, 596 A.2d 426 (1991). "[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . This `substantial evidence rule' is embodied in General Statutes § 4-183(j)(5) and (6)." [Internal citations omitted.] Dufraine, supra, 236 Conn. at 259-60.
CLAIMS ON APPEAL: I.
The first ground of appeal is that the final decision violates constitutional and statutory provisions and was made upon unlawful procedure constituting a violation of procedural and substantive due process and reasoned decision-making in violation of Article First, § 8 of the Constitution of the State of Connecticut, the Fourteenth Amendment to the Constitution of the United States and the (Connecticut) Uniform Administrative Procedure Act.
In the plaintiff's brief and at oral argument, the issue was more concisely framed: "The Board improperly disciplined Dr. Jones for issues not alleged in the statement of charges." 115.00, Plaintiff's Brief. The applicable charge is contained in the amended statement of charges, Count One, ¶ 3.a.: "[Dr. Jones'] care for [the two minors] failed to meet the applicable standard of care in one or more of the following ways: . . . he ordered laboratory studies without having taken a history or made a physical examination for patients he did not know . . ." AR Vol. 2, p. 14 [Board Exhibit 8]. The finding of the Board as to this charge is as follows: "With regard to the allegations contained in paragraph 3a of the Charges, the Department sustained its burden of proof that [Dr. Jones] did not do a physical examination prior to ordering laboratory studies, [Dr. Jones] made a diagnosis of Lyme disease without considering a differential diagnosis, and ordered laboratory tests only to confirm Lyme disease even though the symptoms relayed to [Dr. Jones by the minor children's] grandmother were non-specific. This failure to consider a differential diagnosis violates the standard of care." AR Vol. 1, p. 9.
Dr. Jones argues that he was disciplined for conduct with which he was not charged, in violation of his rights of due process. He was charged with failing to take a history or make a physical examination. He was disciplined for failing to consider a differential diagnosis. The issues are whether this is a different violation of the standard of care for which Dr. Jones had no notice and whether Dr. Jones was prejudiced in presenting his defenses to it, constituting an abuse of the Board's discretion. The court finds the first issue in favor of Dr. Jones and, because his substantive rights of due process may have been prejudiced thereby, remands the case to the Board for further proceedings.
In support of his position, Dr. Jones cites a superior court decision, Ryan v. Department of Public Health, CV 01 0511526 S, superior court, judicial district of New Britain (June 17, 2004, Tanzer, J.), in which a psychologist's license was immediately revoked by the board for ethical violations for having an inappropriate personal relationship with a patient and for violations of the standard of care in seeing the patient for individual therapy and in an area beyond his expertise. The plaintiff had notice of the claim of the former, but not the latter. The plaintiff appealed on the ground, inter alia, that 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. Judge Tanzer found that there was a lack of notice of a claim for violating the standard of care and failure to so charge the plaintiff violated his rights of due process and the requirements of General Statutes § 4-182(c). The Board argues that, unlike the plaintiff in Ryan, Dr. Jones had adequate notice of the charges and that reasonable notice is all that is required.
§ 4-182(c) states: "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 the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined."
[D]ue process [in the administrative hearing context] requires that the notice given must . . . fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law . . . [T]he fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought . . . [N]otice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing . . .
Due process in the administrative context is prescribed by the UAPA. General Statutes § 4-177(b) requires that notice of a contested hearing include the following: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted. (Citations omitted; internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 823-24, 955 A.2d 15 (2008).
Spitz v. Board of Examiners of Psychologists, 127 Conn.App. 108, 117-18, 12 A.3d 1080 (2011). "The purpose of administrative notice requirements is to allow parties to prepare intelligently for the hearing. Goldstar Medical Services, Inc. v. Dept. of Social Services, supra, 288 Conn. 823-24; see also Fleischman v. Board of Examiners in Podiatry, 22 Conn.App. 181, 191, 576 A.2d 1302 (1990) (stating that "[t]he test of whether one is given adequate notice is whether it apprises him of the claims to be defended against, and on the basis of the notice given, whether [the] plaintiff could anticipate the possible effects of the proceeding" [internal quotation marks omitted])." Id. at 120.
The court does not find persuasive the Board's assertion that merely citing General Statutes § 20-13c(4) is sufficient to apprise Dr. Jones of the claims against him. This section states, "The board is authorized to restrict, suspend or revoke the license or limit the right to practice of a physician or take any other action in accordance with section 19a-17, for any of the following reasons: . . . (4) illegal, incompetent or negligent conduct in the practice of medicine . . ." If that were the sole substance of the charge, it would be too broad to apprise Dr. Jones of the substance of the claim. However, the Department's charge was more specific than that, alleging a violation of the standard of care for ordering laboratory studies without having taken a history or made a physical examination for patients he did not know. AR Vol. 2, p. 14, Amended Statement of Charges, 3a.
The court finds that the conclusion of the Board resulting from this charge is materially different from the charge itself. It cannot be said that the ultimate conclusion of the Board that Dr. Jones violated the standard of care by his failure to conduct a differential diagnosis stems from the claim that Dr. Jones ordered laboratory studies without having taken a history or made a physical examination. The failure of Dr. Jones to take a history or make a physical examination is a materially different claim from the conclusion of the Board that he failed to consider a differential diagnosis. AR Vol. 1, p. 9. In its findings of fact as to Count One, the Board makes no reference at all to the failure to consider a differential diagnosis. AR Vol. 1, p. 6, Findings of Fact 2 through 5. In fact the first mention of such failure does not appear until the ninth finding of fact referencing Count Two, in which the Board blurs the two claims of failing to conduct an examination and failing to consider a differential diagnosis. The court finds that Dr. Jones had no prior notice of being charged with that particular violation from the standard of care.
In Findings of Fact 9., referencing the claims of Count Two, the Board states, "Still without examining [the minor child] or considering a differential diagnosis, [Dr. Jones] diagnosed Lyme Disease and Babesiosis on or about August 229, 2005, and prescribed Zithromax 200 mg daily and Meptron 750mg daily . . ." AR Vol. 1, p. 7.
The hearing took place over the course of eight days. The court has been provided with transcripts of the hearing. Although the Board argues that Dr. Jones presented evidence in response to "the charge," the court is unable to correlate the Board's reference to portions of the transcript, to any meaningful presentation of evidence by Dr. Jones refuting a charge that he violated the standard of care by failing to consider a differential diagnosis as to the claims made in Count One of the Amended Statement of Charges. Inasmuch as the Board has ordered significant burdens and penalties upon Dr. Jones and it is impossible to ascertain which pertain to Count One, the court finds that Dr. Jones' substantial rights may have been prejudiced by the lack of notice of this particular charge. General Statutes § 4-183(j).
Therefore, as to Count One, the court remands the case for further proceedings as to the charge of violation of the standard of care for failure to consider a differential diagnosis in Count One, pursuant to General Statutes § 4-183(j). Dr. Jones now has sufficient notice as to that claim and may present his defenses to it for the consideration of the Board.
II.
The second ground of appeal is that the Board's final decision is clearly erroneous in view of the reliable, probative and substantial evidence on the record in that the Board found that Dr. Jones violated standards of care for treatment of patients for Lyme disease based upon standards of care not previously recognized, utilized an inappropriate standard of proof and imposed a disproportionate penalty. In his brief and at oral argument, the position of the plaintiff was more concisely set forth. Dr. Jones claims that the Board's conclusion that Dr. Jones ordered tests before seeing the patients was contrary to the evidence.
This contention, although not specifically stated, appears to be directed to the board's conclusions as to both Count One and Count Two. However, in reviewing the final decision of the Board, and in particular, the "Discussion and Conclusions of Law" section of the decision, the Board concludes that Dr. Jones "deviated from the applicable standard of care in that he failed to make a differential diagnosis. The applicable standard of care requires that in order to make an adequate differential diagnosis an adequate medical history must be taken; a physical examination made; and any appropriate diagnostic tests be ordered based on the physical examination." AR Vol. 1, p. 10. Memorandum of Decision. This conclusion is made in the context of Count Two only, particularly allegations 7a through 7d of the amended Statement of Charges concerning the care and treatment provided for one particular minor child. AR Vol. 2, p. 15. Therefore, the court restricts its analysis to those facts found by the Board as to Count Two only.
"A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Cifaldi v. Cifaldi, CT Page 13409 118 Conn.App. 325, 330-31, 983 A.2d 293 (2009).
"`It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness's testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999)." Seligson v. Brower, 109 Conn.App. 749, 952 A.2d 1274 (2008).
While Dr. Jones focuses upon the testimony of one witness, Peter Krause, M.D., arguing that the Board's conclusion was contrary to the testimony of that witness, there was another witness, Dr. Jones himself, from which the Board could determine whether Dr. Jones' conduct violated the standard of care.
Moreover, while Dr. Jones restricts his argument to a claim that it was the act of ordering tests before seeing a patient which resulted in the finding of a violation, the Board's conclusion was not so restrictive. The Board concluded that, concerning this minor patient, Dr. Jones, relied on a telephone questionnaire which revealed several non-specific complaints, had the patient's mother send samples of blood and urine to a diagnostic lab, diagnosed Lyme disease and Babesiosis based on the lab results and the telephone call and prescribed medications to be taken for four weeks, all prior to examining the patient. AR. Vol. 1, p. 9, Memorandum of Decision. The conclusions of the Board as to Count Two, unlike Count One, are consistent with the charges that Dr. Jones failed to make a differential diagnosis which would require an adequate medical history, physical examination and appropriate diagnostic tests based upon the physical examination. AR Vol. 1., p. 10. Memorandum of Decision. As to those conclusions, the record reflects ample evidence upon which the Board could derive its conclusions.
Effective July 1, 2009, after the date of the statement of charges, the Legislature enacted a statute, General Statutes § 20-14m(b), setting forth that a physician shall not be subject to disciplinary action by the Connecticut Medical Examining Board solely for prescribing, administering or dispensing long-term antibiotic therapy to a patient clinically diagnosed with Lyme disease, provided such clinical diagnosis and treatment has been documented in the patient's medical record by such licensed physician. Even if such statute were retroactive, this is not the sole basis for disciplinary action by the Board against Dr. Jones.
The court has no basis upon which to determine that the facts and conclusions of the Board were clearly erroneous, arbitrary, capricious, unreasonable, an abuse of discretion or improper exercise of discretion. There is in the Record ample and substantial evidence to support the Board's findings and conclusions. The plaintiff has failed to meet his burden pursuant to General Statutes Section 4-183(j) as to the decision of the Board as to Count Two.
III.
The final ground of the appeal by Dr. Jones is that the board's decision is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion in that the decision imposes substantial and unreasonable burdens on Dr. Jones' practice and inappropriately interferes with his professional judgment and subjects his patients to unrecognized standards of care, contrary to the public interest and which violate the doctor-patient relationship and the rights of parents to make medical decisions for their children. As presented in Dr. Jones' brief and as most vociferously argued, the issue is presented as that the standard of proof should be that of clear and convincing evidence, similar to that applicable to attorney discipline, rather than a preponderance of the evidence standard. The arguments proffered are that (1) legal authorities are divided as to the standard of proof in medical disciplinary proceedings; (2) due process requires a higher standard; (3) the current standard violates public policy and (4) the standard of proof in proceedings before the board is a "judge-made rule," and, therefore, can be set by the court.
While the court appreciates the analogy between the professions, attorney disciplinary proceedings are not governed by the Uniform Administrative Procedure Act. Medical disciplinary proceedings, however, do fall within the UAPA. The Connecticut Supreme Court has opined that the standard of proof under the UAPA is preponderance of the evidence: "In the absence of state legislation prescribing an applicable standard of proof, we conclude that the preponderance of the evidence standard is the appropriate standard of proof in administrative proceedings . . ." Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 821, 955 A.2d 15 (2008). If the plaintiff is correct in his assertion that the standard is "judge-made," the Supreme Court's opinion is dispositive and this court is bound by it.
CONCLUSION:
The appeal is sustained as to Count One and remanded to the Board for further proceedings as to the claim that the plaintiff violated the standard of care by failing to consider a differential diagnosis. The appeal is dismissed as to Count Two and as to the issue of applicability of any standard of proof other than that of preponderance of the evidence. No costs are awarded to any party.