Opinion
No. 1111 C.D. 2012
02-20-2013
Belal Mohammad Sharaf, M.D., Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Medicine, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Belal Mohammad Sharaf, M.D. (Doctor) petitions for review of the May 24, 2012, order of the Bureau of Professional and Occupational Affairs, State Board of Medicine (Board), which affirmed the decision of a hearing examiner and reprimanded Doctor for failing to disclose a 2008 disciplinary action by the Arizona Medical Board (Arizona Board). We affirm.
Doctor received his medical degree in 1991 from the University of Jordan in Amman, Jordan. In 2000, Doctor moved to the United States and, in 2003, completed his medical residency in Pennsylvania. In 2003, Doctor moved to Texas to begin a fellowship at the University of Texas, which he completed in July 2004. During his fellowship, Doctor applied for a Pennsylvania medical license. On July 27, 2004, the Board issued Doctor a license to practice medicine, which expired on December 31, 2004.
After completing his fellowship, Doctor left the United States due to issues relating to his visa. He returned in 2005 and began practicing medicine in Arizona. While employed as the medical director of a nursing home, Doctor was accused of professional misconduct, which led to a disciplinary action before the Arizona Board. In December 2008, the Arizona Board issued an adjudication and letter of reprimand, finding that Doctor:
The Arizona Board issued Doctor a medical license in 2005.
alter[ed] medical records, falsif[ied] medical records sent to the Board, fail[ed] to order a timely follow-up Dilantin level after a dosage change, . . . fail[ed] to timely address abnormal lab review in the records and . . . [maintained] inadequate medical records.(Hearing Examiner's Findings of Fact, No. 14.) The Arizona Board also placed Doctor on probation, mandating that he complete 20 hours of continuing education in medical recordkeeping within six months. Doctor satisfied the terms of his probation in April 2009.
Doctor is presently employed as a full-time attending physician at Kingman Regional Medical Center in Arizona. Doctor has not practiced medicine in Pennsylvania since completing his residency in 2003. Doctor has never practiced under his Pennsylvania license. Doctor never renewed his Pennsylvania license after it expired in 2004. Doctor has no ties to or family in Pennsylvania and has no intent to return to Pennsylvania. Because Doctor has had no contact with Pennsylvania since 2004, he did not report the 2008 Arizona disciplinary action to the Board.
On May 6, 2009, the Board sent Doctor an order to show cause, alleging that Doctor violated section 41(4) of the Medical Practice Act of 1985 (MPA) and section 903(2) of the Medical Care Availability and Reduction of Error Act (MCARE Act) for failing to disclose the 2008 Arizona disciplinary action. Doctor filed a motion to dismiss the order to show cause on June 8, 2009. On November 9, 2011, the Board filed an answer to Doctor's motion.
Act of December 20, 1985, P.L. 457, as amended, 63 P.S. §422.41(4). Section 41(4) of the MPA authorizes the Board to impose disciplinary measures on a board-regulated practitioner for "[h]aving a license . . . to practice the profession revoked or suspended or having other disciplinary action taken . . . by a proper licensing authority of another state . . . ." 63 P.S. §422.41(4).
Act of March 20, 2002, P.L. 154, as amended, 40 P.S. §1303.903(2). Section 903(2) of the MCARE Act requires a physician to report to the Board "[i]nformation regarding disciplinary action taken against the physician by a health care licensing authority of another state" within 60 days of such disciplinary action. 40 P.S. §1303.903(2).
Following a hearing on January 24, 2012, the hearing examiner ordered that Doctor be reprimanded for violating the MPA but imposed no further penalty for Doctor's MCARE Act violation.
Doctor timely filed exceptions to the hearing examiner's order. On May 24, 2012, the Board adopted the hearing examiner's findings of fact and conclusions of law and ordered that Doctor be reprimanded. Relying on Nicoletti v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 706 A.2d 891 (Pa. Cmwlth. 1998), the Board concluded that Doctor has a property interest in his expired medical license. The Board noted that "because a licensee possesses a property interest in his or her license that is not extinguished when the license expires, the [B]oard may take disciplinary action against an expired license." (Bd.'s Op. at 3.) The Board then determined that a sanction was appropriate because it "serves as a warning to others to deter misconduct, an impetus to [Doctor] to avoid future misconduct, and notice to the public." (Id.) Doctor now petitions for review of that decision.
Our scope of review of the Board's order is limited to determining whether constitutional rights were violated, whether an error of law was committed, and whether the necessary factual findings are supported by substantial evidence. Tandon v. State Board of Medicine, 705 A.2d 1338, 1342-43 (Pa. Cmwlth. 1997). We may interfere with the Board's decision only if the Board flagrantly abused its discretion or executed its duties in a purely arbitrary manner. Slawek v. State Board of Medical Education and Licensure, 526 Pa. 316, 322, 586 A.2d 362, 365 (1991).
Doctor asserts that the Board exceeded its authority in imposing a reprimand because his Pennsylvania license expired in 2004, he has never practiced in Pennsylvania, and he does not intend to return to Pennsylvania. He also asserts that the Board violated his constitutional rights by imposing an unreasonable and arbitrary sanction. While Doctor makes some cogent arguments, we are constrained to affirm the Board's order.
We begin our analysis with Nicoletti. In that case, Daniel Nicoletti possessed an expired vehicle salesperson license and a suspended vehicle dealer license. After the suspension of his dealer license, Nicoletti closed his dealership and filed for bankruptcy. He later pled guilty to one count of conspiracy to defraud and two counts of mail fraud. Nicoletti, 706 A.2d at 893. Upon receiving notice of the convictions, the Board of Vehicle Manufacturers, Dealers and Salespersons (Vehicle Board) sent Nicoletti a notice to show cause why the Vehicle Board should not revoke both his salesperson license and his dealer license. After a hearing, the Vehicle Board revoked both licenses. Id.
On appeal, Nicoletti argued that he was not subject to discipline because he had an expired salesperson license and a suspended dealer license at the time of the revocations. This court disagreed, concluding that Nicoletti maintained a property interest in both his expired salesperson license and his suspended dealer license. Id. at 893-94. Moreover, Nicoletti could have renewed his salesperson license at any time by simply paying the applicable licensing fees. Id. at 893. Because Nicoletti had acquired the right to sell automobiles, he maintained a property interest in his expired salesperson license such that the Vehicle Board could revoke that right. Id.; see also Brown v. State Board of Pharmacy, 566 A.2d 913, 915 (Pa. Cmwlth. 1989) (stating that "the holder of a valid and existing professional license has a property interest in such license"); Brady v. State Board of Chiropractic Examiners, 471 A.2d 572, 575 (Pa. Cmwlth. 1984) (stating that "the right to practice a profession, once acquired, does constitute a property right in the license").
Applying Nicoletti here, we are compelled to conclude that the Board was authorized to discipline Doctor. Even though Doctor's Pennsylvania license is expired, he still maintains a property interest in his license such that his license is within the Board's jurisdiction. Doctor's license also can be renewed at any time by the filing of appropriate documentation and fees. Therefore, the Board did not exceed its authority in disciplining Doctor. See, e.g., Pisnanont v. State Board of Medicine, 680 A.2d 911, 912 & n.1 (Pa. Cmwlth. 1996) (noting that a doctor was subject to the Board's discipline based on a New York disciplinary action, even though his Pennsylvania license expired in 1976).
We recognize that Doctor's medical license could not be renewed as effortlessly as a vehicle salesperson license "by simply paying the proper licensing fees." Nicoletti, 706 A.2d at 893. As Doctor correctly points out, the Board's own regulations outline the multiple steps that Doctor would need to complete to renew his Pennsylvania license. See 49 Pa. Code §§16.15(h) & (j), 16.16(a), 16.19(b). Under Nicoletti and its progeny, however, because Doctor's expired license is susceptible to revival (i.e., not revoked), it falls within the Board's jurisdiction. See Pittenger v. Department of State, Bureau of Professional and Occupational Affairs, 596 A.2d 1227, 1230 (Pa. Cmwlth. 1991).
Next, Doctor asserts that the Board's reprimand bears no reasonable relation to protecting the health and welfare of Pennsylvania citizens because Doctor does not practice in Pennsylvania. However, whether Doctor presents a risk to Pennsylvania patients is irrelevant in a reciprocal discipline case. See, e.g., Girgis v. Board of Physical Therapy, 859 A.2d 852, 855 (Pa. Cmwlth. 2004) ("[W]hether Girgis was . . . a risk to patients in Pennsylvania[] is wholely [sic] irrelevant. The sole inquiry is whether his license to practice physical therapy was suspended, revoked, or otherwise disciplined in another jurisdiction."); Tandon v. State Board of Medicine, 705 A.2d 1338, 1345 (Pa. Cmwlth. 1997) (stating that no evidence of potential harm to Pennsylvania patients was required to support the Board's discipline; thus, the Board "was permitted to act solely on the fact that Doctor had been disciplined by a board in another jurisdiction").
Finally, Doctor argues that the Board's sanction was excessive and purely arbitrary. We disagree. The Board determined that Doctor must be disciplined under the MPA but that the discipline should be lenient given the sanction already imposed. The Board explained:
The Board finds that [Doctor's] misconduct in Arizona was moderately serious; it was less serious tha[n] a violation that directly causes patient harm, but was certainly substantially more serious than an administrative or "technical" violation of a licensing requirement. . . .(Bd.'s Op. at 3-4; see Section 42(a)(2) of the MPA, 63 P.S. §422.42(a)(2) (authorizing the Board to administer a reprimand against a board-regulated practitioner).) We find no abuse of discretion.
. . . The Board believes that the period of probation and requirement of additional continuing education, which have already been completed in Arizona, are unnecessary to repeat in Pennsylvania. The Board concurs with the Hearing Examiner that a reprimand is the appropriate sanction in this matter.
Doctor also asserts that the Board erred in concluding that he violated the MCARE Act's reporting requirement. Because the Board imposed no penalty for Doctor's MCARE Act violation, we need not address this claim. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 20th day of February, 2013, we hereby affirm the May 24, 2012, order of the Bureau of Professional and Occupational Affairs, State Board of Medicine.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge