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| [1] | North Dakota Supreme Court |
| [2] | Civil No. 980100 |
| [3] | 585 N.W.2d 801, 1998.ND.42011 <http://www.versuslaw.com> |
| [4] | November 03, 1998 |
| [5] | LARSEN V. COMMISSION ON MEDICAL COMPETENCY |
| [6] | Jay H. Fiedler of Pearson, Christensen, Larivee, Clapp, Fiedler, Fischer
& Jensen, P.o. Box 5758, Grand Forks, N.d. 58206-5758, for appellant.
John M. Olson, Special Assistant Attorney General, P.o. Box 817, Bismarck,
N.d. 58502-0817, for appellees. |
| [7] | The opinion of the court was delivered by: Sandstrom, Justice. |
| [8] | Paul D. Larsen, Appellant v. Commission on Medical Competency and North
Dakota Board of Medical Examiners, Appellees |
| [9] | Appeal from the District Court for Burleigh County, South Central Judicial
District, the Honorable William F. Hodny, Judge. |
| [10] | AFFIRMED. |
| [11] | Civil No. 980100 Sandstrom, Justice. |
| [12] | [¶1] Paul Larsen appealed from a judgment affirming the North Dakota Board
of Medical Examiners' decision to revoke his license to practice medicine
in the State of North Dakota. We conclude the Board's decision did not violate
administrative and statutory procedures and did not deprive Larsen of due
process. We also conclude the Board's decision is supported by a preponderance
of the evidence. We therefore affirm. |
| [13] | I. |
| [14] | [¶2] Larsen was a licensed physician in North Dakota for twenty-four years.
He began treating a female patient in June of 1993, and diagnosed the patient
as suffering from bipolar disorder. Larsen began treating the patient with
various medications. Eventually, Larsen and the patient began a consensual
sexual relationship, although they disagree about when it began. The patient
testified the sexual relationship started in March 1994, but Larsen testified
it began in late summer 1994. |
| [15] | [¶3] Larsen wrote the patient a letter, dated April 21, 1994, recommending
she start seeing another physician for treatment. Despite the recommendation
in his letter, Larsen saw the patient in the clinic on September 12, 1994.
Larsen sent another letter, dated September 27, 1994, stating "I can
no longer function in any capacity as your physician and must insist that
you find other health care immediately." |
| [16] | [¶4] In September 1996, as the result of a formal grievance by the patient,
the Commission on Medical Competency, under N.D.C.C. § 43-17-31(6), filed
a complaint with the Board alleging Larsen "engaged in the performance
of dishonorable, unethical, or unprofessional conduct likely to deceive,
defraud, or harm the public . . . and/or . . . engaged in sexual abuse,
misconduct, or exploitation related to the practice of medicine . . ."
in violation of N.D.C.C. §§ 43-17-31(6), (16). The Commission's charges
were a result of Larsen's sexual relationship with the patient. |
| [17] | [¶5] The Commission also charged Larsen "engaged in the use of a
false, fraudulent, or forged statement or document, or the use of a fraudulent,
deceitful, dishonest, or immoral practice, in connection with the physician
licensing requirements" under N.D.C.C. § 43-17-31(1). More specifically,
the Commission maintained "[i]n completing his application for renewal
of his North Dakota Medical License, [Larsen] falsely answered 'no' to the
question of whether, since his last renewal, he received treatment for any
mental illness, when in fact, [Larsen] received treatment" for a mental
illness. As a result of the charges, the Commission, under N.D.C.C. § 43-17-30.1(1),
requested revocation of Larsen's license to practice medicine in North Dakota. |
| [18] | [¶6] The Commission's complaint requested revocation of Larsen's license
to practice medicine, based on either or both the specified grounds. |
| [19] | [¶7] Following three prehearing conferences with the administrative law
Judge ("ALJ"), a hearing was rescheduled for August 5, 1997. During
a telephone conference on August 4, 1997, Larsen's counsel indicated neither
he nor Larsen would be at the hearing to contest the complaint. |
| [20] | [¶8] On August 5, 1997, the administrative hearing was held in Bismarck.
The ALJ took official notice of a letter to the Board indicating Larsen
was resigning his license effective midnight, August 4, 1997. Throughout
the letter of resignation, Larsen continued to deny the charges detailed
in the complaint. The ALJ noted under N.D.C.C. § 28-32-08.4 and N.D.C.C.
§ 54-57-03(3), the Board could have proceeded against Larsen in default,
"but the Commission elected to present a prima facie case." |
| [21] | [¶9] Based on the evidence presented at the hearing and the oral argument
of the Commission's attorney, the ALJ released his recommended findings
of fact, Conclusions of law, and an order on August 7, 1997. The ALJ concluded
"[t]he greater weight of the evidence shows that Larsen violated the
provisions of N.D.C.C. ch. 43-17 as indicated in the findings of fact and
Conclusions of law." After recognizing the Commission's recommendation,
the ALJ agreed with the Commission and recommended revocation of Larsen's
license to practice medicine in North Dakota. |
| [22] | [¶10] On August 19, 1997, the Board of Medical Examiners met to discuss
solely what action to take against Larsen. The Board adopted the ALJ's recommendation,
and Larsen's license to practice medicine in North Dakota was revoked. The
Commission, however, indicated Larsen would not be precluded from demonstrating
rehabilitation to enable future North Dakota medical licensure. |
| [23] | [¶11] In September 1997, Larsen appealed the Board's decision to the district
court. Larsen's motion for leave to offer additional exhibits under N.D.C.C.
§ 28-32-18 was denied because of "no showing of reasonable grounds
for failure to offer the evidence in the hearing." The district court
issued a memorandum opinion affirming the Board's decision to revoke Larsen's
license, and judgment was entered accordingly. |
| [24] | [¶12] Larsen appealed from the judgment of the South Central Judicial
District Court and the order denying his motion for leave to offer additional
exhibits under N.D.C.C. § 28-32-18. The judgment was filed January 27, 1998,
and the notice of appeal was filed March 31, 1998, within the sixty-day
requirement. N.D.R.App.P. 4(a). The district court had jurisdiction under
N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art.
VI, § 6, and N.D.C.C. § 28-27-01. |
| [25] | II. |
| [26] | [¶13] Larsen raises nine issues on appeal: (1) the ALJ's Conclusion his
sexual relationship with a patient was "sexual abuse, misconduct, or
exploitation related to [his] practice of medicine" was not supported
by any finding of fact; (2) the ALJ's Conclusion he fraudulently falsified
or forged statements related to his medical licensing was not supported
by any finding of fact; (3) he was denied due process by failure of the
Commission's counsel to submit exculpatory evidence; (4) the Board's decision
to revoke his license was unsupported by the ALJ's findings of facts and
Conclusions of law; (5) he was denied due process by the Board's failure
to deliberate; (6) he was denied due process because revocation of his license
was excessive as a matter of law; (7) he was denied statutory due process
because the Board proceeded on a default basis without complying with N.D.C.C.
§ 28-32-08.4; (8) the Board lacked authority to revoke his license; and
(9) the district court erred by denying his motion for leave to offer additional
exhibits under N.D.C.C. § 28-32-18. |
| [27] | III. |
| [28] | [¶14] On appeal from decisions by administrative agencies, we review the
agency's decision, not the district court's. Gale v. North Dakota Bd. of
Podiatric Med., 1997 ND 83, ¶ 10, 562 N.W.2d 878 (citing S.N.S. v. North
Dakota Dep't of Human Serv., 474 N.W.2d 717, 719 (N.D. 1991)). Under N.D.C.C.
§ 28-32-19, we affirm the Board's order unless: |
| [29] | 1. The order is not in accordance with the law. |
| [30] | 2. The order is in violation of the constitutional rights of the appellant. |
| [31] | 3. Provisions of this chapter have not been complied with in the proceedings
before the agency. |
| [32] | 4. The rules or procedure of the agency have not afforded the appellant
a fair hearing. |
| [33] | 5. The findings of fact made by the agency are not supported by a preponderance
of the evidence. |
| [34] | 6. The Conclusions of law and order of the agency are not supported by
its findings of fact. |
| [35] | Our standard of review is the same as the district court's review under
N.D.C.C. § 28-32-21. In reviewing the factual basis for an administrative
agency's decision, there are four critical issues: (1) whether the findings
of fact are supported by a preponderance of the evidence; (2) whether the
Conclusions of law are sustained by the findings of fact; (3) whether the
agency's decision is supported by the Conclusions of law; and (4) whether
decision is in accordance with the law. See, e.g., Baer v. Director, North
Dakota Dep't of Transp., 1997 ND 222, ¶ 7, 571 N.W.2d 829 (citations omitted).
"In determining whether an agency's findings of fact are supported
by a preponderance of the evidence, the standard of review is whether a
reasoning mind could reasonably have determined the factual Conclusions
were supported by the weight of the evidence." Rudolph v. North Dakota
Dep't of Transp. Dir., 539 N.W.2d 63, 66 (N.D. 1995) (citing Power Fuels,
Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979). The findings of fact must
be adequate to enable a reviewing court to ascertain the basis of the agency's
decision. Pleinis v. North Dakota Workers Comp. Bureau, 472 N.W.2d 459,
462 (N.D. 1991) (citing Walter v. North Dakota State Highway Comm'r, 391
N.W.2d 155 (N.D. 1986); Matter of Boschee, 347 N.W.2d 331 (N.D. 1984)). |
| [36] | A. |
| [37] | [¶15] Larsen argues "[s]ignificantly, the Administrative Law Judge
made no factual finding that the sexual relationship was abusive or exploitative.
As significantly, the Administrative Law Judge made no factual finding that
the relationship was related to Dr. Larsen's practice of medicine."
We conclude the ALJ's Conclusion of law was supported by findings of fact. |
| [38] | [¶16] The Commission's complaint alleged Larsen violated N.D.C.C. § 43-17-31(6)
and N.D.C.C. § 43-17-31(16). A physician may be disciplined under N.D.C.C.
§ 43-17-31(6) for "[t]he performance of any dishonorable, unethical,
or unprofessional conduct likely to deceive, defraud, or harm the public"
and under N.D.C.C. § 43-17-31(16) for "[s]exual abuse, misconduct,
or exploitation related to the licensee's practice of medicine." After
considering the evidence and the oral arguments of the Commission's counsel
during the hearing, the ALJ's four findings of fact included the following: |
| [39] | 4. The evidence shows that Larsen engaged in a sexual relationship with
a patient, the patient referred to above. This sexual relationship occurred
throughout much of 1994, while the patient was seeing Larsen in a physician/patient
relationship. See exhibits 2, 3, 4, 5, 6, 7, and 13, especially exhibit
13, the deposition of the patient. The relationship is even referred to
in the notes on treatment of Larsen, see exhibit 8, though not by the patient's
name. The evidence shows that the patient, who was extremely troubled herself,
and for whom Larsen was prescribing medication, is especially the sort of
patient that a physician should avoid in any type of relationship, other
than in a physician/patient context. Any type of sexual relationship with
such a patient is inappropriate. See exhibits 11a, 11b, and 12. The sexual
relationship between Larsen and the patient included sexual intercourse
both at Larsen's home and at other locations. |
| [40] | The ALJ then concluded as a matter of law: |
| [41] | 2. The evidence shows, by the greater weight of the evidence, that Larsen
engaged in a sexual relationship with a patient and that such conduct was
sexual abuse, misconduct, or exploitation related to Larsen's practice of
medicine under N.D.C.C. § 43-17-31(16), and the performance of dishonorable,
unethical, or unprofessional conduct likely to deceive, defraud, or harm
the public within the meaning of N.D.C.C. § 43-17-31(6). |
| [42] | [¶17] When analyzing findings of fact and Conclusions of law, we look
to substance rather than labels given by the district court, or an ALJ.
Butts Feed Lots, Inc. v. Board of County Comm'rs, 261 N.W.2d 667, 669 (N.D.
1977) (citing Ferguson v. Ferguson, 202 N.W.2d 760 (N.D. 1972)); see also
Hamilton v. Winter, 281 N.W.2d 54, 58 (N.D. 1979). Accordingly, based on
the ALJ's findings of fact and Conclusions of law as a whole, we conclude
the ALJ did find the sexual relationship between Larsen and the patient
was "dishonorable, unethical, or unprofessional conduct likely to deceive,
defraud, or harm the public" and was "sexual abuse, misconduct,
or exploitation related to Larsen's practice" in violation of N.D.C.C.
§ 43-17-31(6) and N.D.C.C. § 43-17-31(16). We further conclude a reasoning
mind could have reasonably reached that factual Conclusion, and therefore
the Board's decision is supported by a preponderance of the evidence. |
| [43] | B. |
| [44] | [¶18] Larsen asserts the ALJ's Conclusion of law he engaged in the use
of false, fraudulent or forged statements in connection with his medical
licensing was not supported by any factual finding concerning Larsen's knowledge
of the falsity. |
| [45] | [¶19] The evidence submitted to the ALJ included notes of therapy sessions
by a psychologist who treated Larsen from January 6, 1994, through October
12, 1994. The treatment notes by his psychologist detailed Larsen's depression
and his history of self-prescribing anti-depressants. The ALJ's findings
of fact included the following: |
| [46] | 2. In his applications for license renewals from 1994-1997, Larsen answered
no to question numbers 9 and 10 (he checked a box before the word "No"
for each question). Question number 9 asks, "[h]ave you had any serious
physical or mental illness?" Question number 10 asks, "[h]ave
you received treatment for any mental illness?" Each application form
indicates that each question is to be answered understanding that the question
relates to "[s]ince you last applied for renewal of your North Dakota
License. . ." Exhibit 14. |
| [47] | 3. The evidence shows that Larsen, while undergoing treatment himself
in 1994, was diagnosed with mental illness (see exhibit 8 - "[w]orking
diagnosis is Axis I-Major depression, recurrent (DSM-IIIR 296.3). Rule out
bipolar or cyclothymic disorder. Axis II: Diagnosis or condition deferred
on Axis II (DSM-IIIR 799.90)"). |
| [48] | The ALJ's findings of fact illustrated the falsity of Larsen's answers
and necessarily his knowledge of his "working" mental diagnosis.
Based on the findings of fact, the ALJ concluded: |
| [49] | 3. The evidence shows, by the greater weight of the evidence, that Larsen,
in the filing of applications for license for license years 1994-97, engaged
in the use of a false, fraudulent, or forged statement, or the use of a
fraudulent, deceitful, dishonest, or immoral practice, in connection with
the physician licensing requirements within the meaning of N.D.C.C. § 43-17-31(1). |
| [50] | [¶20] We conclude a reasoning mind could have reasonably reached those
factual findings and the Board's Conclusion of law that Larsen violated
N.D.C.C. § 43-17-31(1) was supported by the findings of fact. |
| [51] | C. |
| [52] | [¶21] Larsen argues he was denied due process in two ways: (1) the Board
did not consider evidence unfavorable to the revocation of his license,
and (2) the "prosecutor" failed to submit material evidence to
the ALJ. Larsen's argument is without merit, and we conclude he was not
denied due process. |
| [53] | [¶22] Larsen relies on this Court's decision in Bromley v. North Dakota
Workmen's Comp. Bureau, 304 N.W.2d 412 (N.D. 1981), to support his contention.
At issue in Bromley were conflicts between the testimony given at the hearing
and discrepancies in the attending physician's report submitted to the agency.
Id. at 415. This Court concluded the Bureau's decision was not supported
by a preponderance of the evidence because the Bureau did not seek to resolve
discrepancies in the attending physician's report and failed to consider
the portion of the report unfavorable to its ultimate decision. Id. at 418.
Although an agency has an obligation to consider both favorable and unfavorable
evidence, Larsen's position he was denied due process because the Commission
failed to provide the ALJ with "known exculpatory evidence" is
not supported by Bromley nor by the record. |
| [54] | [¶23] Larsen argues the ALJ was not provided with the testimony of the
patient indicating Larsen "did not act inappropriately during any of
her clinic consultations, that the sexual relationship was entirely consensual,
and that Dr. Larsen did not attempt to exploit the physician/patient relationship
by suggesting that the relationship had anything whatsoever to do with her
course of treatment." The Commission, however, has conceded those specific
facts, in addition to submitting the deposition of the patient as evidence
at the administrative hearing. The "exculpatory evidence" Larsen
maintains was not presented at the evidentiary hearing was highlighted by
Larsen's counsel during his oral argument at the Board's meeting on August
19, 1997. Furthermore, Larsen and his counsel had a meaningful opportunity
to be heard and present evidence at the administrative hearing, but chose
not to do so. Therefore, we conclude Larsen was not denied due process. |
| [55] | D. |
| [56] | [¶24] Larsen contends the order recommending revocation of his license
to practice medicine was unsupported by the findings of fact or the Conclusions
of law because neither addressed the extent of the discipline or any particular
basis for the severity of the discipline. Larsen argues there is no reference
in the findings of fact or Conclusions of law to explain why the ALJ recommended
revocation or why the Board adopted the sanction without discussing a lesser
discipline. We conclude revocation of Larsen's license was in accordance
with the law. |
| [57] | [¶25] An agency's decision must be supported by the Conclusions of law
and must be in accordance with the law. See, e.g., Baer v. Director, North
Dakota Dep't of Transp., 1997 ND 222, ¶ 7, 571 N.W.2d 829. The decision
to revoke Larsen's license was supported by the Conclusions of law adopted
by the Board, which detailed Larsen's violation of N.D.C.C. § 43-17-31(1),
(6), (16). In its complaint, the Commission had specifically sought revocation.
Under N.D.C.C. § 43-17-30.1(1), revocation of Larsen's license was an available
disciplinary action for any violation of N.D.C.C. § 43-17-31. Based on the
evidence, the Board determined Larsen violated not only one statutory provision,
but three. Although Discussion of alternative action would have been desirable,
considering the number of violations and Larsen's decision to surrender
his license prior to the administrative hearing, it is not unreasonable
that the Board adopted the recommendation of the ALJ without discussing
other available disciplinary sanctions. |
| [58] | [¶26] We therefore conclude the Board's decision to revoke Larsen's license
was supported by the Conclusions of law and was in accordance with the law. |
| [59] | E. |
| [60] | [¶27] Larsen argues he was denied due process by the Board's failure to
deliberate. He asserts the Board "rubber-stamped" the ALJ's decision
and suggests the Board's lack of Discussion on whether his license to practice
medicine should be suspended or revoked demonstrates its decision was arbitrary. |
| [61] | [¶28] Larsen asserts "[i]t is a mystery" why the Board revoked
his license instead of considering another sanction. He maintains "[t]here
is nothing in the record upon which one can guess the reason Dr. Larsen's
license was revoked . . . ." During the administrative hearing, however,
the Commission discussed the rationale for the recommended sanction. The
Commission acknowledged suspension of Larsen's license may have been appropriate
if he had agreed to be evaluated by a psychiatrist for a rehabilitation
program. Following a structured rehabilitation, the Commission argued Larsen
may have been able to reinstate his license by demonstrating his fitness
to practice medicine to the Board. The Commission concluded "[w]e are
recommending revocation at this point because Dr. Larsen not only is of
default in this matter but, by letter through his attorney, specifically
indicated that he is not responsible in any way for these charges." |
| [62] | [¶29] The transcript of the administrative hearing, as well as all the
evidence submitted to the ALJ, was provided to the Board members for consideration
prior to their meeting. There is no evidence the Board members failed to
review the entire record before the Board rendered its decision. Furthermore,
during the Board's meeting to discuss the ALJ's recommendation, counsel
for both sides argued in support of their positions. The Commission emphasized
the vulnerability of the patient, Larsen's failure to admit any wrongdoing,
and the Board's responsibility to protect the public. Based on the record,
Larsen was not denied due process by the Board's failure to deliberate. |
| [63] | F. |
| [64] | [¶30] Larsen argues he was denied due process because revocation of his
license to practice medicine was an excessive sanction as a matter of law.
While this sanction may be harsh, we conclude the Board did not abuse its
discretion. |
| [65] | [¶31] Larsen contends revocation of his license was excessive because
the sexual relationship did not occur "under the guise of treatment,
as part of a physical examination, during psychiatric treatment or in exchange
for drugs." Although he argues the revocation was excessive, during
oral argument to the Board, when addressing the appropriate disciplinary
action, he maintained no sanction was appropriate because no statutory violation
had been established. |
| [66] | [¶32] Generally, if authorized by law and justified in fact, imposition
of a regulatory sanction by an administrative agency is discretionary. Steen
v. North Dakota Dep't of Human Serv., 1997 ND 52, ¶ 24, 562 N.W.2d 83 (citing
Sletten v. Briggs, 448 N.W.2d 607, 611 (N.D. 1989), cert. denied, 493 U.S.
1080 (1990)); see also Matter of Prettyman, 410 N.W.2d 533, 537 (N.D. 1987)
(citing Wisdom v. North Dakota Real Estate Comm'n, 403 N.W.2d 19, 22 (N.D.
1987)) (holding the North Dakota Real Estate Commission did not abuse its
discretion in reprimanding Wisdom); Panhandle Coop. Ass'n v. E.P.A., 771
F.2d 1149, 1152 (8th Cir. 1985) (recognizing "[t]he assessment of a
penalty is particularly delegated to the administrative agency. Its choice
of sanction is not to be overturned unless 'it is unwarranted in law' or
'without justification in fact.'") (citing Butz v. Glover Livestock
Comm'n Co., 411 U.S. 182, 185-86 (1973)). Thus, the issue becomes whether
the revocation of Larsen's license to practice medicine was authorized by
law. Wisdom, at 22; see, e.g., Dresser v. Board of Med. Quality Assurance,
181 Cal.Rptr. 797, 804 (Cal. Ct. App. 1982) (citations omitted) (noting
"'[t]he propriety of a penalty imposed by an administrative agency
is a matter within its discretion and, absent a manifest abuse thereof,
it will not be disturbed upon review by a trial or appellate court'"). |
| [67] | [¶33] Both sides contend numerous decisions from other jurisdictions are
persuasive on this issue. See, e.g., Gromis v. Medical Board of California,
10 Cal.Rptr.2d 452, 460 (Cal. Ct. App. 1992) (reversing and remanding for
further findings on whether a physician took advantage of his position in
order to induce a patient into a sexual relationship and whether the physician's
failure to refer the patient for counseling was related to their sexual
relationship); Dresser, 181 Cal.Rptr. at 804 (determining the Board did
not abuse its discretion when it revoked a psychologist's license for engaging
in sexual relations with his patients); Bash v. Board of Med. Practice,
579 A.2d 1145, 1146 (Del. Super. Ct. 1989) (affirming the Board's decision
suspending a physician's license for one year, and permanently restricting
him from treating female patients upon possible reinstatement of his license
after one year); Yero v. Department of Prof'l Regulation, 481 So.2d 61,
63 (Fla. Dist. Ct. App. 1985) (reversing the Board's decision suspending
a physician's license, because after weighing the evidence, the Board based
its final order on a substituted finding regarding the status of the physician/patient
relationship at the time of the sexual relationship); Solloway v. Department
of Prof'l Regulation, 421 So.2d 573, 575 (Fla. Dist. Ct. App. 1982) (affirming
the Board's decision to revoke a psychiatrist's license because the record
supported the finding sexual activity between a psychiatrist and a patient
was precluded by the profession itself); Herridge v. Board of Registration
in Med., 648 N.E.2d 745, 746 (Mass. 1995) (remanding the case because the
ALJ failed to explain determinations of credibility); Palmer v. Board of
Registration in Med., 612 N.E.2d 635, 638 (Mass. 1993) (determining revocation
was within the Board's discretion and affirming the Board's decision to
revoke a psychiatrist's license with leave to petition for reinstatement
after two years); Haley v. Medical Disciplinary Bd., 818 P.2d 1062, 1075
(Wash. 1991) (affirming the Board's decision to sanction Haley after ruling
his sexual relationship with a former teenage patient constituted unprofessional
conduct). None of the decisions cited concluded revocation of a physician's
license to practice medicine was excessive when a statutory violation had
been established. |
| [68] | [¶34] Disciplinary action may be imposed against a licensed physician
for any of twenty-eight grounds under N.D.C.C. § 43-17-31. The ALJ concluded
Larsen violated three of those grounds: |
| [69] | 1.The use of any false, fraudulent, or forged statement or document, or
the use of any fraudulent, deceitful, dishonest, or immoral practice, in
connection with any of the licensing requirements. |
| [70] | 6.The performance of any dishonorable, unethical, or unprofessional conduct
likely to deceive, defraud, or harm the public. |
| [71] | 16.Sexual abuse, misconduct, or exploitation related to the licensee's
practice of medicine. |
| [72] | N.D.C.C. § 43-17-31. The ALJ cited violations of all three statutory grounds
as the basis for adopting the Commission's recommendation to revoke Larsen's
license. Revocation of license is one of nine available disciplinary actions
under N.D.C.C. § 43-17-30.1(1). The statute leaves the choice of disciplinary
action within the discretion of the Board "as it may find appropriate."
Here, the Board adopted the recommendation of the ALJ revoking Larsen's
license. |
| [73] | [¶35] Larsen does not dispute that revocation of his license to practice
medicine was one of the sanctions available to the Board. There is nothing
in the plain language of the statute or its legislative history to suggest
this Court should second-guess a decision clearly within the parameters
of the Board's authority. Therefore, because this sanction is authorized
by law and justified in fact, we hold the Board's decision to revoke Larsen's
license was not an abuse of discretion. |
| [74] | G |
| [75] | [¶36] Larsen next contends he was denied statutory due process because
the Board proceeded on a "default" basis without complying with
the provisions of N.D.C.C. § 28-32-08.4. We find Larsen's argument without
merit. |
| [76] | [¶37] Despite Larsen's contention, the administrative hearing was not
a default hearing subject to the technical provisions of N.D.C.C. § 28-32-08.4.
Under N.D.C.C. § 28-32-08.4(1): |
| [77] | If a party fails to attend or participate in a prehearing conference,
hearing, or other stage of a contested case administrative proceeding, the
agency may serve upon all parties written notice of default and a default
order, including a statement of the grounds for default. |
| [78] | The administrative hearing was not a default hearing as defined by the
statutory language. Larsen clearly had an opportunity to attend the administrative
hearing and present evidence, but chose not to attend, or have his attorney
attend. We therefore conclude Larsen was not denied statutory due process. |
| [79] | H. |
| [80] | [¶38] Larsen contends the Board acted without authority because he previously
resigned his license to practice medicine in North Dakota. We conclude this
argument is without merit as well. |
| [81] | [¶39] Larsen correctly acknowledges N.D.C.C. § 43-17-30.1 authorizes the
Board to take action against any "licensed physician." He asserts
because he resigned his license on August 4, 1997, the Commission did not
have authority over his license after that date. In response, the Commission
contends: |
| [82] | The Board had not even met to consider his resignation. However, it has
always been the practice of the Board to exercise its responsibility in
disciplinary actions, although a physician may want to tender his license
in order to abort the process. There is no doubt, based upon the actions
and arguments of Larsen subsequent to the hearing that he may want his license
returned. Thus, had the Board not taken any action, it would be its duty
to return the license to Larsen absent any finding of discipline or the
imposition of any sanctions pursuant to the North Dakota Medical Practice
Act, N.D.C.C. Ch. 43-17, and the Administrative Practices Act, N.D.C.C.
28-32. |
| [83] | Larsen was still a licensed physician at the time of the Board's meeting
on August 19, 1997. We therefore conclude the Board acted with authority
when deciding to revoke Larsen's license. |
| [84] | I. |
| [85] | [¶40] Larsen argues the district court erred by denying his motion for
leave to offer additional exhibits under N.D.C.C. § 28-32-18. Because Larsen
had an opportunity to attend the administrative hearing and present evidence,
the trial court did not err in denying Larsen's motion for leave. |
| [86] | [¶41] While his appeal was pending in the district court, Larsen moved
for leave to offer additional evidence. He argues his deposition testimony
and the deposition testimony of the patient taken during the course of a
related civil action was "omitted testimony" relevant to the district
court's review. He asserts "[t]he depositions taken in the related
civil action bore directly upon the issue of whether the relationship was
abusive, exploitative, or related to Dr. Larsen's practice of medicine."
The district court denied Larsen's motion for leave, stating there was "no
showing of reasonable grounds for failure to offer the evidence in the hearing." |
| [87] | [¶42] "Under N.D.C.C. § 28-32-18 a party may apply to the court in
which an appeal is pending for leave to offer additional evidence. If the
court finds the additional evidence is material and there were reasonable
grounds for the failure to adduce the evidence at the administrative hearing,
the court may order the additional evidence be taken, heard and considered
on terms and conditions as it deems proper." Otto v. North Dakota Workers
Comp. Bureau, 533 N.W.2d 703, 705 (N.D. 1995) (citing N.D.C.C. § 28-32-18;
Insurance Serv. Office v. Knutson, 238 N.W.2d 395, 400 (N.D. 1979); Nohr
v. North Dakota Workers Comp. Bureau, 419 N.W.2d 545, 546-47 (N.D. Ct. App.
1988)). Neither the district court nor this Court may consider evidence
not submitted to the agency. Id. (citing Knutson v. North Dakota Workers
Comp. Bureau, 120 N.W.2d 880, 882-83 (N.D. 1963)). |
| [88] | [¶43] Regardless of whether the deposition testimony is relevant, Larsen
failed to prove reasonable grounds for the failure to adduce the evidence
at the administrative hearing as required under N.D.C.C. § 28-32-18. The
record indicates Larsen and his counsel chose not to attend the administrative
hearing. Having elected not to attend the hearing, Larsen cannot maintain
the district court erred in denying his motion for leave. We therefore affirm
the district court's denial of Larsen's motion. |
| [89] | IV. |
| [90] | [¶44] The decision of the North Dakota Board of Medical Examiners revoking
Larsen's license to practice medicine is affirmed. |
| [91] | [¶45] Dale V. Sandstrom |
| [92] | William A. Neumann |
| [93] | Maurice R. Hunke, D.J. |
| [94] | Gerald W. VandeWalle, C.J. |
| [95] | [¶46] Hunke, Maurice R., D.J., sitting in place of Maring, J., disqualified. |
| [96] | [¶47] The Honorable Herbert L. Meschke, a member of the Court when this
case was heard, retired effective October 1, 1998, and did not participate
in this decision. |
| [97] | [¶48] The Honorable Carol Ronning Kapsner was not a member of the Court
when this case was heard and did not participate in this decision. |
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