22 Conn. App. 193 | Conn. App. Ct. | 1990
In this opinion we dispose of two related appeals by the plaintiff, Gary Fleischman. Fleischman was sanctioned on three separate occasions by the Connecticut board of examiners in podiatry (board) and unsuccessfully appealed those decisions to the Superior Court. Fleischman appealed all three cases to this court, and we have already denied one such appeal. Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 576 A.2d 1302 (1990) (Fleischman I).
In Fleischman I, we rejected the plaintiffs arguments that the board (1) lacked jurisdiction because it was improperly constituted and (2) deprived the plaintiff of due process by applying standards of care that had not been promulgated in agency regulations or established on the record through expert testimony. The plaintiff raises the same arguments in the remaining two cases, but they will not be considered again.
There are only two new issues that the plaintiff raises in the remaining appeals. The first issue arose in appeal no. 7752 and concerns whether the board abused its discretion in discounting the testimony of the plaintiff’s expert witness. The second issue has been raised and briefed in both appeal no. 7752 and appeal no. 7407 and concerns whether General Statutes § 20-59 constitutes an unlawful delegation of authority.
I
The plaintiff claims in the second case that the board abused its discretion by relying on the testimony of Samuel Berkowitz, while rejecting the testimony of Marvin Z. Arnold. Arnold is a diplómate of the American board of ambulatory foot surgery. The plaintiff argues that the board discounted Arnold’s testimony because its hidden agenda in the case was to suppress the practice of minimal incision surgery.
The board’s decision will stand unless it is illegal, arbitrary or an abuse of discretion. Jaffe v. State Department of Health, supra, 353. In this case, the board did not abuse its discretion in discounting the testimony of Arnold. “ ‘ “[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.” ’ ” Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980). “An administrative agency is not required to believe any witness, even an expert.” Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980). Although an agency board or commission consisting of lay persons may not completely disregard the only expert evidence available on an issue; Tanner v. Conservation Commission, 15 Conn. App. 336, 341, 544 A.2d 258 (1988); the same is not true where the board or commission is comprised of experts. With the facts of the conduct before it, the board was competent to
II
The plaintiff claims that General Statutes § 20-59 constitutes an unlawful delegation of legislative power to a nonelective body. “The law-making power is in the legislative branch of our government and cannot constitutionally be delegated . . . but the General Assembly may carry out its legislative policies within the police power of the state by delegating to an administrative agency the power to‘fill in the details.’ . . . ‘In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform.’ ” (Citations omitted.) New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 149, 384 A.2d 337 (1977).
We have held that standards similar to those set but in General Statutes § 20-59 are not constitutionally defective. Altholtz v. Dental Commission, 4 Conn. App. 307, 493 A.2d 298 (1985). There, we stated that “what constitutes ‘unprofessional conduct’ and what renders a professional ‘unfit’ or ‘incompetent’ are to be determined ‘by those standards which are commonly accepted by those practicing the same profession in the same territory.’ . . . These standards are part of the ethics of the profession, and every member of the profession should be regarded as an expert with regard to the determination of their meaning.” (Citations omitted;) Id., 314-15. Because every practicing member is an expert as to the meaning of the standards, the standards prescribe the limits of the board’s power with “reasonable clarity.” See State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586 (1940).
The judgments are affirmed.
In this opinion the other judges concurred.
“[General Statutes] Sec. 20-59. disciplinary action by board; grounds. The board may take any of the actions set forth in section 19a-17 for any of the following reasons: (1) Procurement of a license by fraud or material deception; (2) conviction in a court of competent jurisdiction, either within or without this state, of any crime in the practice of podiatry; (3) fraudulent or deceptive conduct in the course of professional services or activities; (4) illegal or incompetent or negligent conduct in the practice of podiatry; (5) habitual intemperance in the use of spirituous stimulants or addiction to the use of morphine, cocaine or other drugs having a simi
The board found that “[i]n September, 1984, the Respondent performed a bunionectomy on a patient named Teresa Heifetz using a technique known as minimal incision surgery .... While the surgery took place, an individual who was not wearing sterile garb was present in the room where the procedure was performed .... [T]he Respondent inserted into the patient’s foot a needle which [he] had previously placed on an unsterile counter .... [T]he Respondent drilled into the first metatarsal phalangeal joint on the patient’s right foot .... [T]here was a shattering of the first metatarsal head on the patient’s right foot.
“As a part of his post-operative instructions to Ms. Heifetz, the Respondent directed the patient to apply gentian violet to the open wound site
The plaintiff makes the following claims. “This is an appeal that arises from an inquisition. The field of podiatric surgery is dominated by traditional open surgery practitioners. None of the three ‘professionals’ on the board regularly practice minimal incision surgery Dr. Fleischman is [sic] one radically different method of foot surgery known as minimal incision surgery. The board in this case, and in a series of nearly identical cases, has set out to penalize Dr. Fleischman for his surgical methods. Methods, which if allowed to flourish in Connecticut, could supplant traditional open podiatric surgery and thus could pose an economic threat to Connecticut practitioners of traditional open podiatric surgery. Consistently, it has completely ignored the expert testimony of several of the nation’s leading minimal incision podiatric surgeons, Dr. Plon and Dr. Marvin Arnold, and