In re Jon Porter, M.D.
70 A.3d 915
Vt.2012Background
- Porter supervised a PA from 1996 to 2009 at the University of Vermont Center for Health and Wellbeing.
- In 2009 a nursing-student study suggested the PA was a source of controlled substances; Porter began investigating via electronic medical records.
- The PA admitted improper prescribing of opiates; the Board disciplined the PA after a stipulation and consent in August 2009.
- In December 2010 the State charged Porter with multiple counts, including that he was legally liable for the PA's conduct under §1739 and other supervision-based claims.
- A September 2011 three-person committee recommended finding Porter unprofessionally conduct for Count I but no sanction, and recommended dismissing Counts II–V.
- The Vermont Board of Medical Practice, in January 2012, rejected the committee’s count-I recommendation and dismissed all charges, adopting the committee’s findings for Counts II–V.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1739 make a supervising physician professionally liable for a PA's unprofessional acts? | Porter: no strict vicarious liability; §1739 does not apply to professional discipline for PA acts. | State: yes; §1739 imposes agency-based liability for PA acts in disciplining the supervising physician. | No; §1739 does not create professional liability for PA acts. |
| Is deference owed to the Board's interpretation of §1739 and its disciplinary standards? | Porter: deferential review; Board's interpretation should be given weight only within its expertise. | State: de novo review for statutory interpretation of §1739. | Board's interpretation rejected as to §1739; deference to Board for §1354 standards preserved. |
| May the Board discipline Porter under §1354 based solely on the PA's unprofessional acts? | If PA acts violate §1354, Porter could be disciplined for supervision. | §1354 covers physician conduct; cannot discipline solely on PA's acts without physician's own misconduct. | No; §1354 does not authorize discipline for a physician based solely on a PA's acts when Porter met standards. |
| What is the proper scope of §1739 and its relation to agency concepts in professional regulation? | Agency theory supports vicarious liability for supervising physicians. | Agency concepts do not govern professional disciplinary actions; civil liability concepts differ from professional discipline. | §1739 relates to civil liability, not professional responsibility; cannot subject Porter to discipline solely for PA's unprofessional acts. |
Key Cases Cited
- In re Chase, 2009 VT 94 (VT) (Board authority and deference to expertise in professional conduct matters)
- Perry v. Vt. Med. Practice Bd., 169 Vt. 399 (1999) (Board's statutory authority and scope of power)
- In re Tariff Filing of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14 (2001) (limitation of Board's expertise in technical regulatory matters)
- Robes v. Town of Hartford, 161 Vt. 187 (1993) (statutory interpretation presumed to reflect legislative intent)
- In re Margaret Susan P., 169 Vt. 252 (1999) (distinction between legal liability and professional responsibility)
- Desautels Real Estate, Inc., 142 Vt. 326 (1982) (vicarious liability in license-regulatory context; limitations discussed)