American Association of Veterinary State Boards

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1 American Association of Veterinary State Boards Top Recent Regulatory Cases September 26, :30pm 3:30pm Dale Atkinson, Esq. AAVSB Counsel Atkinson & Atkinson 1466 Techny Northbrook, Illinois

2 TOP RECENT REGULATORY CASES Top Cases ) Walsh v. State Board of Public Accountancy, 276 Neb. 1034, 759 N.W.2d 100 (NE 2009) Nebraska Supreme Court affirmed lower court sanction against a CPA for not including in Yellow Page advertisements the disclaimer that his license was inactive and for impersonating his brother-in-law to an insurance company to obtain financial information. The court rejected the licensee s arguments that the board did not have subject matter jurisdiction over him because he was only providing service related to tax return preparation. The court held that the licensure status (albeit inactive) subjected the licensee to the jurisdiction of the board. The court also held that the rules promulgated by the board requiring notice in advertisements to include inactive status did not exceed scope by expanding the statute. Court also found a nexus between false impersonation and license in that CPA s are held to high standard of honesty and integrity. Finally, court held that Sixth Amendment right to confront accuser did not apply to administrative proceedings. (CPA, subject matter jurisdiction, scope of practice, nexus, Sixth Amendment) 2) Doe v. Iowa Board of Medical Examiners, 2009 WL (App. Ct. IA 2009) Court of appeals affirmed lower court and held that board had jurisdiction over expired physician license to order competency evaluation of such licensee. Court recognized statute which provides for differing types of licenses (including active and inactive). Court also noted that the expiration of a license does not rob the board of its authority to discipline. (physician, expired license, board jurisdiction) (See also which was basis for NABP 7/2007) 3) Jenkins v. National Board of Medical Examiners, 2009 WL (App. Ct. KY 2009) Appellate Court reversed and remanded an ADA case involving a medical student who sought additional time on the US Medical Licensing Examination. He had a reading disorder, but the lower court found that he did not qualify as disabled, as the limitation was not substantial enough under caselaw interpreting the ADA. While the suit was pending, Congress amended the ADA and expressed its intent to broaden the coverage for individuals, thus the lower court needed to reexamine the case under the new amendments. Because the student was seeking prospective relief, no injustice would arise from applying the amended law, even though the conduct at issue occurred before the amendments. (ADA, accommodations, examination) 4) State Board of Chiropractic Examiners v. Superior Court of Sacramento County, Ct. App. 3 C (CA 2009) Superior Court reversed the appellate court and held that Chiropractic Board (Board) employee who filed a complaint with the State Personnel Board (SPB), to which the SPB issued an adverse finding, did not have to succeed in having the adverse finding set aside before she could file court action for damages under the state s Whistleblower Protection Act (Act). Employee reported adverse action after she expressed repeated concerns to the Board about the lapse of a chairperson s chiropractic license. The SPB recommended dismissal of the complaint and under the SPB regulations, she could petition for a hearing on the matter. Instead, she chose to file the damages action under the

3 Act. The Court held that a complaining employee was not required to petition for such a hearing, nor must he or she seek writ review of the SPB s findings. She was free to file the action in court, so long as she filed a complaint first with the SPB and the SPB had issued or failed to issue findings on the matter. (board employee, whistleblower, exhaust administrative remedies) 5) Dixon v. Kirkpatrick, 553 F.3d 1294 (App. Ct. OK 2009) Tenth Circuit Court of Appeals reversed the lower court and held that Oklahoma Executive Director, sued in her individual capacity over employment termination, was entitled to immunity regarding her termination of the employee. The court held that the employee was not subject to First Amendment protections in her speech related to allegations of misuse of funds and power by board investigators and Executive Director. Court recognized importance of Board to prohibit unauthorized disclosure of information and that employee s actions were disruptive to board operations. (veterinary board employee, employment, first amendment, termination, confidential information) AAVSB 3/2009 Note: Additional Court Order May 26, 2009, denying OBVME motion for summary judgment. 6) Brown v. New York State Racing and Wagering Board, 871 N.Y.S.2d 623 (NY 2009) Appellate Court affirmed lower court ruling and held that individuals which engage in the practice of routine equine dentistry are not required to be licensed veterinarians. Under the statute, routine practice of equine dentistry defined by the practitioner (who is not licensed as a veterinarian or a veterinary technician) as the filing and floating of horses teeth and the removal of baby caps, along with visual inspections and the application of salt, a tincture myrrh, or baking soda, was held by the court to not fall within the definition of veterinary medicine. The court noted other jurisdictions which do not find equine dentistry as the practice of vet medicine. It also noted that dentists were able to perform procedures on animals. Procedurally, the Racing and Wagering Board investigated the practitioner and undertook an investigative interview and was advised by the investigator of the necessity of a license by the NY State Education Department. The court rejected defenses related to SOL as the investigators findings were no a final order. (veterinarian, unlicensed practice, technician, SOL) 7) Kaplan v. Department of Health, 2009 WL (App. Ct. FL 2009) Court affirmed order of board suspending for six months, restricting the licensee from cosmetic surgery until such time as demonstrated competence by obtaining board certification, imposed a three year probationary period and imposed an administrative fine of $6,500. The board order increased the sanctions recommended by the ALJ. Because there were no findings of statutory violations, the ALJ had found the licensee to be a first time offender although there were three previous disciplinary actions. The board rejected this argument and the court agreed that the administrative law did not require there to be a finding of statutory violations to be considered as a prior disciplinary action. The court recognized the need/ right of the board to consider the entire history in fashioning a sanction. (physician, sanction, past history of discipline)

4 8) Cahoon v. Governing Board of Ventura Unified School District, 2009 WL (App. Ct. CA 2009) Appellate court affirmed lower court which found that a nolo contendere plea to a controlled substance offense is not a conviction as defined under the Education Code for purposes of terminating a permanent classified school district employee (custodian). Court held that the Education Code which was amended to include nolo pleas to sex offenses as deemed to constitute convictions, but did not include nolo pleas to misdemeanor drug offenses. Court cited Penal Code which prohibits nolo pleas from use as an admission in any subsequent civil suit, and such civil suit includes administrative proceedings. (school district/ custodian, nolo contendere plea, not a criminal conviction) 9) Farrell v. Whiteman, 2009 WL (ID 2009) Supreme Court of Idaho vacated and remanded lower court and held that contract for architectural services entered into for services related to Idaho project was unenforceable as architect was not licensed in Idaho, in spite of the fact that contracting architect was licensed during critical times during the project. Court cited the public protection aspects of the practice act and that the statute unambiguously requires licensure for any practice of architecture, not just during critical times. While law will not provide judicial aid to parties to an illegal contract, the court remanded the matter to the lower court to determine if architect entitled to relief under public policy and unjust enrichment theories and vacated the award of attorneys fees. (architect, contract, unlicensed, enforceability) 10) Hebert v. Louisiana Licensed Professional Vocational Rehabilitation Counselors, 2009 WL (App. Ct. LA 2009) Appellate Court affirmed the defendant s motion to strike defamation claim filed against licensed counselor for filing complaint with board under portion of practice act that prohibits licensee from criticizing another licensee. But, Appellate Court reversed that portion of lower court order which dismissed/ strike Plaintiff s cause of action under an abuse of process theory. Plaintiff alleged conspiracy between defendant licensee and defendant board. (vocational counselor, conspiracy, conditional privilege) (See also which was basis for ASWB 2/2008) 11) Morgan v. Department of Financial and Professional Regulation, 2009 WL (App. Ct. IL 2009) Appellate Court affirmed lower court revocation of psychologist license for boundary/ ethics violation, recordkeeping violations and others. The court found that the evidence supported the findings of the Department Director, ALJ, and the lower court. The Appellate Court rejected numerous arguments of the licensee related to evidentiary matters, cross examination, credibility of witnesses and ALJ rulings regarding objections. The court also rejected arguments of the licensee related to constitutional due process claims and notice within the complaint. (psychologist, boundary, recordkeeping, evidentiary matters) See also ) DeBinder v. Albertson s, Inc., 2009 WL (Dist. Ct. AZ 2009) District Court denied pharmacy technician motion for summary judgment on false arrest count filed by patient of pharmacy whose prescription was not filled due to confusion over the prescribing physician s name and the inability to verify its validity. Based upon the technician s due diligence, law enforcement authorities were called when the patient arrived to pick up the script resulting in the patient s arrest. Denying the motion of the technician, the court held that because the

5 technician deceived the patient into the pharmacy with the intention of calling the police, there may be a colorable claim for false arrest. (pharmacy, technician, false arrest, elements) NABP 3/ ) White Smile USA, Inc. v. Board of Dental Examiners of Alabama, CV (Cir. Ct. AL 2009) Circuit Court denied White Smile s motion for a declaratory judgment. The court held that the teeth whitening processes and procedures constituted the practice of dentistry as defined under Alabama law and merited the public protection aspects as set forth in the practice act. (teeth whitening, scope of practice, declaratory judgment) 14) Vaders v. Pennsylvania State Horse Racing Commission, 2008 WL (Comm. Ct. PA 2009) Commonwealth Court affirmed Commission s revocation of horse trainer s license for multiple positive drug tests on licensee s horses. Court rejected arguments of licensee related to due process, specifically failure to turn over documents by Commission of informal requests. Court held that formal subpoena power existed and licensee did not formally seek compliance. Court also held that Commission did not selectively enforce statute unfairly against licensee and that redistribution of race proceeds was not timely appealed. (horse trainer, due process, discovery, waiver of appeal) 15) Schick v. United States, 2008 WL (App. Ct. Federal Circuit 2009) United States Court of Appeals remanded matter to U.S. Court of International Trade and held that such court did not have jurisdiction to hear appeal of customs broker whose license was revoked for failure to file triennial report as required. Court held that revocation for failure to file report was not akin to nor covered under applicable statute establishing jurisdiction in courts for disciplinary acts. Court also recognized that licensee was not entitled to a hearing under these circumstances. (customs broker, renewal, failure to file report, jurisdiction on appeal) 16) Williams v. Government of the Virgin Islands, Board of Medical Examiners, 2009 WL (Dist. Ct. VI 2009) District Court denied physician s motion to stay the enforcement of a board order which revoked his license for life based upon negligent practice which resulted in death. Procedurally, the licensee, after administrative action, sued the board and was granted a TRO on the enforcement of the revocation. The board successfully argued the case should be dismissed under the abstention doctrine. The licensee appealed that ruling and, in the interim, sought to have the revocation stayed. The court analyzed the four factors necessary for a stay and ruled in favor of the board. (physician, permanent revocation, stay, pending appeal) 17) In the Matter of Drakes, 2009 WL (NY 2009) Appellate Court disbarred attorney for numerous counts related to misuse of funds as a fiduciary, continued practice of law while unauthorized (license suspended), and material misstatements on application to renew real estate broker s license. In particular, real estate broker s license application asked if ANY license had been revoked, suspended, or denied by a governmental agency to which licensee responded no. Court also upheld revocation as appropriate sanction. (attorney, unlicensed practice, material misstatement on other license application, sanction)

6 18) Dresser v. Ingolia, 2009 WL (App. Ct. LA 2009) Fifth Circuit Court of Appeals affirmed lower court dismissal of case filed by 3 mariners (marine engineers and merchant mariners) finding that the licensees failed to exhaust their administrative remedies and thus the court lacked subject matter jurisdiction. The court noted that the licensees actions were still pending before the Commandant and that judicial intervention was premature. The court also noted that the licensees cannot establish subject matter jurisdiction in the court based upon events that occurred after the filing of the complaint in that the existence of federal jurisdiction depends on the facts as they exist when the complaint is filed. Finally, the court held that the lower court did not need to address licensees Bivens claims (addressing constitutional violations by federal authorities), as it did not have jurisdiction to begin with. (mariners, exhaust administrative remedies, federal jurisdiction) 19) Greene v. Wyoming Board of Chiropractic Examiners, 204 P.3d 285 (WY 2009) Supreme Court affirmed the Board s indefinite suspension of chiropractor s license following complaints of improper sexual conduct by two patients. First, a patient-witness was not required to disclose mental health information to licensee, as her mental status was not at issue and her testimony did not constitute a waiver of the privilege between her and her treating therapist. Her mental health information was not considered necessary to defend a malpractice action, as allowed by statute, because this was not a malpractice action. Notably, while the court found that, contrary to various claims by the licensee, the Board did not violate his due process rights, it cautioned the state for future cases. The state had obtained a large amount of confidential information on licensee s expert witness from the Board s files without the witness consent. The court warned that the Attorney General s office, in its role as prosecutor, should not have access to such information without complying with applicable rules. (chiropractor, unprofessional conduct, suspension, witness testimony, due process, confidential information) 20) North Carolina Department of Correction v. North Carolina Medical Board, 675 S.E.2d 641 (NC 2009) Supreme Court affirmed lower court and held that Department of Corrections and Warden had standing to pursue injunctive relief, the matter was ripe, and the position statement rendered by the NC Board Medical Board in adopting a position statement which prohibits NC licensed physicians from participating in executions exceeded the authority of the board. The board position statement allowed the physicians to be present at such executions (as stated in statute), but not render any professional assistance. In rejecting this position statement, the court held that the statute governing executions which required a medical professional to be present at all executions contemplated presence in a professional duty. The case was stimulated by a challenge by an inmate to the process/ procedures of an execution and his concerns as to whether appropriate medical personnel were participating to prevent undue suffering. In response to a court ruling, the board rendered its position statement. (physician, board authority, position statement, death penalty) 21) Halil v. Medical Board of California, 2009 WL (Cal.App. 2 Dist) (App. Ct. CA 2009) Reinstatement case whereby appellate court affirmed lower court and upheld medical board s denial of petition for reinstatement of medical license of physician previously revoked for gross negligence related to three abortions performed. Court reviewed what evidence was relevant to proceedings, burden always rests with applicant, applicant is not

7 treated as an untried newcomer, but that of a fallen licentiate. Court also noted the clear and convincing standard for applicant s burden which is a demanding burden and found that substantial evidence supported the board denial of petition for reinstatement. (physician, reinstatement, burden, relevant evidence) 22) Berry v. National Medical Services, Inc., 205 P.3d 745 (App. Ct. KS 2009) Appellate Court reversed the lower court s opinion and held that registered nurse could argue a breach of duty claim against a third party administrator (NMS) of alcohol testing program that solicited business from the state Board of Nursing. NMS tested nurses whose licenses, including that of the claimant, were at risk due to alcohol abuse. Licensee tested positive, the Board revoked her license and she in turn argued that NMS established too low of a threshold for a positive result for alcohol consumption. The court found that NMS owed a duty to her, as she was a foreseeable plaintiff, there was a foreseeable probability of harm to her license should she test positive, and there was no viable public policy argument against imposing liability. Therefore, a cause of action was properly pled. (nurse, alcohol abuse, revocation, duty of care) 23) Dawson v. State Farm Mutual Auto-Mobile Insurance Company, 2009 WL (Del.Super.) (Supr. Ct. DE 2009) Court denied a plaintiff s Motion in Limine seeking to exclude the proposed testimony of a defense chiropractic expert in a claim for personal injury benefits protection from his insurance company. The law states that no doctor of chiropractic could testify in such an action unless duly licensed by the state and in active practice. The witness in question examined the plaintiff while licensed and practicing, but had withdrawn from active practice by the time of the trial. Statute was silent on this issue, thus court looked to the bill s original synopsis, which made clear that its purpose was to stop out-of-state chiropractors from becoming licensed solely for purpose of reviewing and denying treatment to in-state residents. Purpose was not to prevent those licensed and practicing at the time of evaluation from testifying later. (insurance claim, expert witness testimony, statutory interpretation) 24) Texas State Board of Dental Examiners v. Brown, 2009 WL (App. Ct. TX 2009) Appellate court reversed lower court and upheld sanctions imposed by the board against dentist. The Board temporarily suspended the license and shortly thereafter entered into a settlement agreement whereby he could not practice for a certain period of time. The Board soon after found that he had violated the agreement by performing dental acts while suspended and failing to participate in agreed-upon mentoring and peer assistance programs. However, the ALJ declined to recommend any additional sanctions, finding that the Board staff prevented the licensee from complying with the agreement. The Board declined to accept the recommendation and imposed additional sanctions. The court held that the Board, as required by law, provided a specific reason and legal basis for the Board s actions. Also, there was substantial evidence to support the claims of dishonorable conduct and inadequate record-keeping. The Board ultimately has the authority to determine sanctions. (dentist, suspension, ALJ, monitoring, record-keeping, unprofessional conduct)

8 25) Moraski v. Connecticut Board of Examiners of Embalmers and Funeral Directors, 291 Conn.242, 967 A.2d 1199 (CT 2009) Supreme Court affirmed the holding that Board acted appropriately in summarily suspending and then permanently revoking embalmer s license and that of his funeral home. Licensee allegedly failed to give decedents families signed statements of goods, engaged in verbally abusive behavior toward the families, refused to release remains to another funeral director, and failed to properly store remains. Licensee argued that the trial court improperly dismissed his appeal from the board s initial summary suspension, and that due process required a hearing on the matter. The Court found that the issue was moot; there was no practical relief available in any event, as the board subsequently revoked the licenses after a hearing involving the same facts. Revocation was proper, following a repeated and systematic violation of statutory requirements. Also, the $50,000 fine was not excessive. (funeral home operator, unprofessional conduct, revocation, due process, fine) 26) Yokley v. State Board of Education, 2009 WL (App. Ct. TN 2009) Appellate Court affirmed the lower court s decision to issue a summary judgment in favor of the Board, after it revoked a teacher s license. The teacher was accused of abusing a teenager who lived in a residential facility where the teacher worked and the Department of Children s Services subsequently classified him as an indicated perpetrator of child physical abuse. Pursuant to state law, the Board was required to revoke the license of one with such a classification, as it was required to ensure that he have no access to children. (teacher, child abuse, revocation, summary judgment) 27) State Board of Physicians v. Rudman, 185 Md. App. 1, 968 A.2d 606 (App. Ct. MD 2009) Appellate Court reversed and held that Physician s Alford plea to second degree assault constituted a guilty plea for purposes of law mandating the revocation of license to practice medicine when plea involves crime of moral turpitude. Licensee s plea was characterized (see Alford case) as consenting to the imposition of a sanction while not admitting participation in the conduct. Licensee requested a hearing to appeal the revocation, but was denied, as the Board claimed it was required to revoke the license, pursuant to state law. The Court agreed and noted that the circuit court judge repeatedly reminded licensee that the Alford plea constituted a guilty plea. Also, the placement of licensee on probation before judgment did not nullify the plea while the relevant statute provided for discharge from probation without judgment of conviction, nothing implies that guilty plea is nullified upon discharge. Last, second-degree assault on a patient involves an intentional, harmful act and is a crime of moral turpitude. (physician, revocation, criminal plea, moral turpitude) 28) Chiloupek v. Arizona Medical Board, 2009 WL (App. Ct. AZ 2009) Appellate Court upheld the finding that Board acted properly in revoking physician s license, as there was no dispute that physician violated a previous Board order to enter into a drug treatment program. The substance use, involving diverted drugs and self-prescribing, was addressed by the Board over a period of 30 years on and off, including temporary licensure revocations and previous stipulated orders. Licensee s argument that he should not have been forced to enter certain treatment program, pursuant to 2004 order, failed because he never appealed to the lower court on that matter, thus he could not seek review of the terms or such order. (physician, revocation, stipulated order, due process, substance abuse)

9 29) Ake v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 2009 WL (Comm. Ct. PA 2009) Court vacated Board order which revoked accountant s CPA certificate and license to practice in PA because of his 2002 criminal harassment conviction (hate crime) in Illinois. Ake allowed his PA license to expire when he moved to IL, and then disclosed the conviction when applying for reinstatement 7 years later. The Board reinstated him after he completed 100 hours of CE, but then later initiated an enforcement action based on the conviction. The Court found that the conviction (involving intolerance of homosexual beliefs) was unrelated to the practice of accountancy, was many years before and that the licensee demonstrated remorse and the belief of respect for all in a professional setting. While the Board had grounds to impose a sanction, it abused its discretion in imposing the harshest possible sanction, particularly since the IL conduct does not constitute a felony in PA. (accountant, revocation, criminal conviction, relation to practice, sanction) 30) Heinlein v. New York State Office of Children and Family Services, 60 A.D.3d 1472, 876 N.Y.S.2d 293 (App. Ct. NY 2009) Supreme Court granted petition of group family day care licensee to review the determination of the Office s suspension and revocation of its license. The court found that there was insufficient evidence to support the Office s determination that licensee refused to admit Office employees into her home to inspect. Even if the allegations were true, the court held that license revocation was disproportionate to the offense. (day care, revocation, inspection, sanction) 31) Spano v. New York State Racing and Wagering Board, 2009 WL (NY 2009) Supreme Court ordered that harness racing driver/ trainer s application to vacate and annul a determination by the Board to suspend his license be transferred to the Appellate Court. Board suspended the license based on the discovery of syringes and banned substances in his trailer located at a racetrack. The Court found that investigators who inspected his trailer were properly licensed and that the proceeding should be transferred, because the proceedings involved an issue as to whether the suspension was supported by substantial evidence. (horse racing, suspension, banned substances, venue) 32) Indiana Pesticide Review Board v. Black Diamond Pest & Termite Control, Inc., No. 22A CV-258 (App. Ct. IN 2009) Appellate Court reversed the trial court and found that Board acted appropriately in revoking the licenses of termite control company, its owners and employees based on findings of various pesticide violations and the criminal impeding of the investigation by one employee. The trial court held that the state chemist did not have the authority to find the employee in violation of a criminal statute, but the Appellate Court agreed with the Board s interpretation of the statute: while the conduct constitutes a misdemeanor, a reasonable interpretation of the law gives the chemist authority to impose a civil penalty for such conduct and that he may revoke a license instead of or in addition to imposing a civil penalty. (pesticide, revocation, impeding investigation, statutory interpretation) 33) Hampton University v. Accreditation Council for Pharmacy Education (ACPE), 2009 WL (Dist. Ct. VA 2009) Federal District Court denied request by university for

10 injunctive relief related to placement of schools pharmacy program on probation for failure to meet accreditation standards, specifically related to quantitative faculty and staff. Program argued probation decision violated its common law due process rights, by, among other factors, failing to provide concrete number and/ or ratios of students to faculty, limiting the time for conformance, treating the program differently from other programs, and failing to provide an appeal mechanism. The court applyed the test for injunctive relief, held that the public interest element weighed in favor of the accrediting body and the need for public protection was paramount and denied the school s request for removal from probation. (pharmacy, accreditation, common law due process, probation) NABP 6/ ) In the Matter of the Suspension or Revocation of the License of Santusht Perera, 2009 WL (Sup. Ct. NJ 2009) Superior Court affirmed the Board s 2-year suspension and $30,000 fine imposed upon a physician based upon negligent practice and alteration of medical records to cover up mistakes. The Board decided not to adopt the ALJ s finding that the licensee did not alter the documents and therefore imposed a longer suspension and larger fine than the ALJ recommended. Lastly, the licensee could not demand that the hearing be continued in order for him to call witnesses for the mitigation portion, as he had notice that the hearing was taking place and could not assume that the Board s ruling would be overturned. (physician, negligence, falsifying records, suspension, fine, board deference) 35) Payne v. Texas State Board of Medical Examiners, 2009 WL (App. Ct. TX 2009) Appellate Court affirmed the lower court s judgment that Board could revoke neurosurgeon s medical license for unprofessional conduct likely to harm the public and prescribing drugs in a non-therapeutic manner, stemming from an unnecessary surgery and inadequate post-op care that resulted in a patient s death. Court held that licensee s claims that Board s expert witnesses were biased against him were already addressed by his ability to fully crossexamine them before the ALJ, therefore he received due process. (physician, revocation, unprofessional conduct, due process, bias) 36) Gillette v. North Dakota Disciplinary Board Counsel, 2009 WL (Dist. Ct. ND 2009) U.S. District Court dismissed attorney s motion to enjoin proceedings based on an alleged violation of his equal protection rights and on the theory that the state Supreme Court did not have jurisdiction to discipline him for conduct related to litigation in Indian tribal court. The Court found that the state Supreme Court has jurisdiction and authority to discipline an attorney once he or she is admitted to practice in the state, no matter where the conduct at issue occurred. It also found that the Board s decision to discipline licensee is the functional equivalent of a state court judgment, thus the proceedings are considered ongoing state judicial proceedings for purposes of abstention doctrine by this federal court. (attorney, misconduct, Board jurisdiction, abstention) 37) In re: Nalls, 998 So.2d 697, (LA 2009) State Supreme Court held that attorney s conduct violated Rules of Professional Conduct and was grounds for revoking the probation he had been placed on pursuant to a consent order. Consent order set aside a suspension and placed attorney on 2-year probation, which he was found to have violated by interfering with the viewing of a will and by mischaracterizing its contents. Court agreed with judiciary panel

11 to revoke probation and institute the previously deferred suspension. (attorney, consent order, misconduct, probation, suspension) 38) Robbins v. Davi, 2009 WL (App. Ct. CA 2009) Appellate Court affirmed the lower court s decision to deny real estate broker s petition to set aside the Real Estate Commissioner s decision revoking his license. Licensee had been convicted for three misdemeanor violations of the fire protection and prevention programs of the municipal code and claimed that there was no connection between those and his license. The Department of Real Estate determined that these offenses, which included unlawful obstruction of buildings and failing to inspect fire detection system and extinguishers, were crimes of moral turpitude and related to the qualifications and duties of his license. The Court agreed with the relation argument, as the crimes involving properties managed by the licensee involved doing unlawful acts with the intent of economic benefit. The moral turpitude argument was at that time a moot point. (real estate broker, revocation, criminal act related to license) 39) Aptaker v. Administrative Review Board for Professional Medical Conduct, 60 A.D.3d 1160, 875 N.Y.S.2d 604 (App. Ct. NY 2009) NY Supreme court affirmed Administrative Review Board revocation of physician s license for failure to undergo psychological evaluation per board order, and for untruthfulness on application into Army. Court held ample evidence supported the revocation. NY licensee had Florida application denied, was discharged from Army and failed to complete psychological exam order by NY board. (physician, psychological evaluation, Army, endorsement application denial) 40) Ohio State Bar Association v. Burkholder, 121 Ohio St.3d 262, 903 N.E.2d 630 (OH 2009) Supreme Court upheld indefinite suspension of license of attorney for failure to pay child support, failure to register as an attorney, and for Mass. criminal convictions related to violence. Court held that indefinite suspension was appropriate due to mitigating circumstances of licensee, whose alcohol abuse contributed to misconduct and his efforts to remain sober. Reinstatement petition must show licensee participation in Lawyers Assistance Program, psychological treatment, CE requirements, child support compliance, and report from treating mental health professional. (attorney, child support, registration, alcohol, criminal conviction) 41) Department of Community Health v. Rahe, 2009 WL (App. Ct. MI 2009) Court of Appeals affirmed Nursing Disciplinary Subcommittee decision to place nurse on 2 years probation for substandard care while employed in a hospital setting. The court rejected licensee arguments related to fair and just treatment under Michigan constitution for hospital investigations that ultimately led to termination and formed the basis for administrative action by the board holding that the private hospital was not a state actor for purposes of application of constitutional principles argued. Court also rejected due process arguments re: the actions of the board investigator holding that the investigators did not have the authority to sanction the license and that the administrative hearing afforded all such due process rights. (nurse, hospital investigation, due process, fair and just treatment) 42) Volkman v. United States Drug Enforcement Administration, 567 F.3d 215 (App. Ct. OH 2009) Sixth Circuit Court of Appeals denied petition by physician for review of denial of

12 application for DEA federal registration to dispense controlled substances and upheld agency denial based upon public interest. The applicant had previously been licensed and, based upon a move, sought to renew/ re-register with the DEA. Under a cloud of numerous previous complaints and investigations for over-prescribing dangerous substances, recordkeeping issues, and failure to physically exam patients, the application was denied. The court rejected licensee s arguments related to due process, and substantial evidence finding the record supported the DEA holding. The court also rejected licensee s argument related to the DEA acting beyond the scope of the Controlled Substances Act. (physician, controlled substances act, registration denial, due process) 43) Norsworthy v. Kentucky Board of Medical Licensure, 2008-SC (KY 2009) Supreme Court affirmed lower court (which had reversed trial court entry of temporary injunction staying an administrative sanction) and upheld the enforcement of a board of medicine sanction against a physician to restrict his practice to male-only patients. The licensee was accused of inappropriately touching a female patient and had been the subject of 16 previous boundary accusations in the past 19 years. The Supreme Court held that the licensee did not meet the extraordinary cause test necessary to reverse the appellate court. (physician, boundary, stay, injunction) 44) Weismueller v. Kosobucki, 2009 WL (App. Ct. 7 th Circuit 2009) Seventh Circuit Court of Appeals reversed District Court dismissal of class action challenging the diploma privilege which allows graduates of one of the two Wisconsin law school (one public and one private) to be granted the privilege of a law license in Wisconsin without passing the bar exam. The 7 th Circuit held the record, based upon the dismissal upon motion, did not provide enough of a basis for review and that the lower court must address whether the Wisconsin law schools have a Wisconsin-emphasized curriculum. The plaintiffs challenged the Wisconsin Supreme Court rule under the commerce clause. (attorneys, license, exemption, bar exam, local school) 45) Osman v. South Carolina Department of Labor, Licensing, and Regulation, 382 S.C. 244, 676 S.E.2d 672 (SC 2009) Supreme Court affirmed public reprimand and imposition of costs on physician for deviation from standard of care. Supreme Court also reversed lower court and held that medical board has the authority to require the licensee to substantiate her competence before returning to practice in South Carolina (licensee moved back to Lebanon after board action). Court rejected licensee argument that future proof of competency was an anticipatory suspension beyond the scope of board authority. (physician, reprimand, proof of competence) 46) Arkansas State Board of Embalmers and Funeral Directors, 2009 WL (App. Ct. AR 2009) Court of Appeals reversed lower court and upheld board sanction of funeral director, embalmer, and funeral home for failure to perform duties, performance outside scope, and for failure to oversee employees of the home. The court held that substantial evidence supported the findings of the board and reversed the lower court which had reversed the board findings and sanction. (funeral home director, embalmer, substantial evidence)

13 47) Albanna v. State Board of Registration for the Healing Arts, 2009 WL (MO 2009) Supreme Court affirmed in part and reversed in part decision of lower court re: discipline of a physician for unprofessional conduct (affirmed), repeated negligence (affirmed), and incompetence (reversed) and remanded matter for reconsideration of 5 year probation, informed consent and 2 nd opinion sanction. Court undertook extensive analysis of defining unprofessional conduct, repeated negligence, and incompetence. The court rejected most of the licensee arguments, but held that the record did not establish incompetence findings. (physician, unprofessional conduct, negligence, incompetence, deference) (See also ) 48) Pendergraft v. Department of Health, 2009 WL (Dist. Ct. FL 2009) Appellate Court upheld the board action disciplining a physician for performing a third trimester abortion in his clinic (rather than in a hospital as required). Court rejected argument of licensee that ALJ reference to criminal violation (without a criminal conviction) necessitated a reversal of the board sanction. Court held that board discipline was based upon violation of Practice Act, Practice Act allowed for administrative discipline, even without a criminal conviction, and that criminal intent not a prerequisite to board sanction. (physician, abortion, sanction, no need for criminal conviction) 49) Lankheim v. Board of Registration in Nursing, 454 Mass. 1013, 907 N.E.2d 1099 (MA 2009) Supreme Court dismissed appeal by nurse of ruling by one justice of the Supreme Court which remanded matter of reciprocal discipline to the board. The licensee voluntarily relinquished her Florida license after discipline causing the Massachusetts board to indefinitely suspend her Massachusetts license. On appeal, a single justice of the Supreme Court ruled that the board was able to impose reciprocal discipline on the licensee based upon her Florida surrender. However, he remanded the matter for the board to reconsider the sanction without regard to the vigor with which [licensee] opposed the existence of discipline in Florida and her appeal to the full court was dismissed. (nurse, reciprocal discipline, final appealable order) 50) Stormans v. Seleckys, 2009 WL (App. Ct. CA 2009) Ninth Circuit Court of Appeals reversed District Court and held that the lower court erred in issuing a preliminary injunction regarding the application/ enforceability of a Washington Board of Pharmacy rule requiring the dispensing of lawful medication and filling lawful scripts. The court concluded that the District Court applied a strict scrutiny standard in reviewing the rule when it should have applied the less stringent rational basis test. The court found the rule to be neutral and of general applicability triggering the less stringent legal analysis. It also found the preliminary injunction to be overly broad. (pharmacy/ pharmacist, fill requirement, rule, religious/ moral objection) 51) National Council of Examiners for Engineering and Surveying v. Cameron-Ortiz, 2009 WL (Dist. Ct. Puerto Rico 2009) Federal District Court entered default judgment against examinee who sat for two portions of the uniform exams required for licensure as an engineer for breach of contract regarding application/ registration for the examination as well as copyright violations. Examinee confronted during one administration found to have significant recording and transmitting devices hidden in her vest. Through additional

14 investigation, exam owner found examinee also had electronically copied another of its licensure exams using technology. Court reviewed requirements for service of process and entered default judgment with damages in excess of $1,000,000. (engineer, exam breach, contract, copyright) CLEAR 8/ ) Wilson v. Board of Dental Examiners, 120 Hawai i 417, 209 P.3d 194, 2009 WL (App. Ct. HI 2009) Appellate Court affirmed lower court and upheld the denial of an applicant for licensure as a dentist. While the dental board in Hawaii transitioned from one licensure exam to another, the legislature created an alternative pathway to licensure based upon numerous criteria. The applicant argued that her three-year experience as a graduate student in orthodontics at a school in CT qualified as practice toward the requirement that applicants must have engaged in the active practice for a period of three years. This argument was rejected by the court. (dentist, alternative pathway, new examination, definition of practice) 53) Gonzáles-Droz v. Gonzáles-Colon, 2009 WL (App. Ct. Puerto Rico 2009) Court of Appeals affirmed District Court decision to deny physician s request for a preliminary injunction regarding the suspension of his license and $5K fine for practicing cosmetic surgery without the appropriate board certification under a newly promulgated rule. The court held that the licensee failed to show irreparable harm element of the preliminary injunctive requirements based upon his move to CA, and allegations of only past harm rather than future harm. (physician, board certified, injunction, rule) 54) Frokjer v. North Dakota Board of Dental Examiners, 764 N.W.2d 657 (Sup. Ct. ND 2009) Supreme Court affirmed lower court and upheld sanction against dentist for violations of the Practice Act related to inappropriate touching of patients. In affirming the lower court, the Supreme Court addressed the standard of review and held that issues of law are considered by the court, while findings of fact are deferred to the agency/ board. From a procedural perspective, the ALJ recommended that the charges be dropped, but the board, upon review, found wrongdoing and imposed a 6-month suspension and 40 hours of CE. Although the board also imposed costs and attorneys fees, it subsequently reversed that portion of the order because it did not provide notice to the licensee of this potential. The court also rejected arguments of the licensee related to alleged bias on the part of the board based upon a pecuniary interest in the outcome of the proceedings referencing the presumption of validity of board action. The court also held that the preponderance of evidence standard had been met. NABP 8/ ) Ricci v. DeStafano, 129 S.Ct (United States Supreme Court 2009) United States Supreme Court reversed court of appeals (2 nd Circuit) and held that City of New Haven CT decision to disregard examination results in determining promotion issues for firefighters violated Title VII of the Civil Rights Act. Exam-passing white/ Hispanic candidates field suit alleging Civil Rights violation and14th Amendment violations. The city was in the unenviable position of accepting the exam results and risk allegations of race/ bias in that white candidates outperformed minority candidates or disregarding exam results and risk allegations of discrimination from white examinees. On cross motions for summary judgment, the lower court ruled in favor of the city and the 2 nd circuit affirmed. On appeal,

15 the U.S. Supreme Court reversed under Title VII and held that Plaintiffs under disparate treatment claim were entitled to judgment, noting that fear of litigation alone cannot justify an employer s reliance on race to disregard examination results. The court also noted that under competing expectations via the disparate treatment and disparate impact provisions, the city likely would avoid disparate impact liability if alleged. (firefighters, exam results, disparate treatment/ disparate impact, Title VII) 56) Harrison v. Ohio Veterinary Medical Licensing Board, 2009 WL (App. Ct. OH 2009) Court of Appeals affirmed lower court and upheld $500 fine imposed upon licensed veterinarian for violation of the standard of care related to post operative inactions and follow-up procedures. The appellate court emphasized the standard of review and that it will not substitute its judgment for the fact finder. It held that injury of the animal is not necessary as a basis for administrative action, the licensee s challenge to the credibility of the expert witness was waived as not raised at the hearing, and that the hearing officer has the obligation to weigh conflicting testimony/ evidence and did so in the case in favor of the board. Sanction upheld. (veterinarian, standard of care, conflicting testimony, judicial review) (See also which was basis for AAVSB 3/2001) 57) Georgia Real Estate Appraisers Board v. Krouse, 2009 WL (App. Ct. GA 2009) Court of Appeals reversed lower court and upheld board revocation of license of appraiser for acts related to an inflated appraisal and later acquisition of the property by such licensee s wife. The lower court reversed the board sanction based upon a finding that the administrative proceedings required expert testimony to establish the standard of care and how it was breached. The appellate court held that where evidence of negligence is so clear and palpable that it may be understood by a layperson, no such expert testimony is required. Further, the record supported the revocation in that the licensee failed to notify the board that another license (real estate broker) had been previously sanctioned in violation of numerous statutes and regulations. (appraiser, revocation, conflict, other license) 58) Faghih v. Washington State Department of Health, Dental Quality Assurance Commission, 202 P.3d 962 (App. Ct. WA 2009) Appellate Court affirmed lower court which upheld sanction against dentist for unprofessional conduct related to treatment of various patients. Licensee argued that a board member was biased and that the board chair erred in refusing to disqualify the board member in question. In part, the licensee argued that a board member was a witness in a previous matter many years ago that was handled by the attorney for the licensee in the current matter and exhibited bias toward such attorney. The court rejected these arguments analyzing the elements necessary for establishing bias, including a presumption of fairness on the part of the board members. (dentist, bias, elements) ASWB 4/ ) Rose v. Board of Behavioral Sciences, 2009 WL (App. Ct. CA 2009) Appellate Court reversed lower court and reinstated a 30-day suspension of license of social worker for 3 DUI convictions over an 11-year period, with one such conviction occurring before the issuance of the social work license. The lower court had reversed the 30-day suspension imposed by the board based upon the rehabilitation efforts undertaken by the licensee. The appellate court deferred to the factual findings of the board and held as reasonable and within

16 its legal parameters for the board to suspend the license. In addition, the court held that the board need not establish harm to patients as a prerequisite to administrative action. (social worker, DUI, suspension, harm to patients) ASWB 8/2009

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