208 Conn. 492 | Conn. | 1988
The sole question in this case is whether an administrative agency has jurisdiction to revoke the license of a Connecticut physician even though the license expired by lapse of time prior to the initiation of revocation proceedings. The plaintiff, P. Gary Stern, M.D., appeals from the judgment of the trial court upholding the decision of the Connecticut medical examining board (board) revoking his license to practice medicine. We find error.
I
The facts of this case are not disputed. In late 1979 and early 1980, the plaintiff was the subject of several overlapping investigations into alleged professional misconduct. The department of consumer protection
Since 1980, the plaintiff has ceased to be licensed to practice medicine in this state. His license expired, by its own terms, on January 31, 1980, and the plaintiff did not apply for its renewal.
In the summer of 1981, the board notified the plaintiff’s attorney that the department, which acts as the prosecuting authority in physician disciplinary cases,
In November, 1983, the department filed a forty-four count statement of charges against the plaintiff. Two principal forms of misconduct were alleged. The plaintiff was first accused of excessively and improperly prescribing controlled substances and of failing to maintain proper records of dispensed controlled substances. In addition, the plaintiff was accused of sexual misconduct in having intercourse with, and taking nude photographs of, his female patients. In its prayer for relief, the department requested that the board “find for any or all of the above reasons, that P. Gary Stern is unable to practice medicine with reasonable skill and/or safety and that the Board revoke the license of P. Gary Stern to practice medicine.” (Emphasis added.)
A notice of hearing was issued by the board in November, 1983. After receiving actual notice in Florida, the plaintiff hired new counsel in Hartford. His counsel promptly asked a department attorney for a continuance. The hearing nevertheless was held as scheduled on November 30, 1983. The plaintiffs new counsel appeared at the hearing without filing or renewing with the board any oral or written motion for a continuance. Instead, counsel filed a motion to dismiss on two grounds: (1) lack of jurisdiction; and (2) laches. The board reserved decision on the motion. The department then presented eight witnesses to prove its charges against the plaintiff. Each witness was vigorously cross-examined by plaintiffs counsel. The plaintiff did not appear or testify on his own behalf. At the close of the hearing, plaintiffs counsel did not move for a continuance and did not indicate any interest in calling any
The board found all of the charges proven, except for eight counts involving two female patients who did not testify. The board also denied the plaintiff’s motion to dismiss for lack of jurisdiction, concluding that the surrender of his license had been done with intent to evade disciplinary action and therefore was not binding on the board.
In his administrative appeal to the Superior Court, the plaintiff did not contest the board’s findings of misconduct. He instead reiterated his claim that the board lacked jurisdiction to revoke a medical license that, by automatic expiration or voluntary surrender, had
On appeal to this court, the plaintiff renews the jurisdictional and due process claims that the trial court rejected. We conclude that, under the facts and circumstances of this case, the board lacked jurisdiction to revoke the plaintiff’s license. Accordingly, we do not address his alternative claim of a due process violation.
II
The plaintiff’s jurisdictional claim arises from a juxtaposition of two related statutes involving the board’s disciplinary authority. General Statutes (Rev. to 1983) § 20-13c provides that “[t]he board is authorized to restrict, suspend or revoke the license ... of a physician in accordance with section 19a-17, when the board finds that such physician is unable to practice medicine with reasonable skill or safety . . . .” The term “physician” is defined in General Statutes (Rev. to 1983) § 20-13a (5) as “a person licensed pursuant to [chapter 370] . . . .” Having allowed his license to expire prior to the filing of disciplinary charges in this case, the plaintiff maintains that he was not a “physician” within the scope of the board’s disciplinary jurisdiction. The board, on the other hand, argues that, for jurisdiction to attach, the practitioner need only commit acts of alleged misconduct during his or her licensure. It is not necessary, according to the board, that the practitioner hold a license when actual charges are filed. In its view, the plaintiff’s position would eviscerate the regulatory power of the board in contravention of legislative intent.
The board derives its authority from three principal statutes: §§ 19a-17, 20-8a and 20-13c. While none of these statutes expressly resolves the question that we confront in this case, all three confer authority upon the board to revoke licenses. Our first order of business, then, is to reconcile these interrelated provisions in order to achieve a sensible overall interpretation that is faithful to the intent of the legislature. Obuchowski v. Dental Commission, 149 Conn. 257, 266, 178 A.2d 537 (1962).
Subsection (a) (1) of General Statutes § 19a-17
General Statutes § 20-8a
Finally, General Statutes § 20-13c
In light of this statutory scheme, we conclude that the board had no jurisdiction to revoke the plaintiff’s license in this case. Central to our conclusion is the narrow scope of the department’s prayer for relief, which requested only the revocation of the plaintiff’s license.
In an ordinary civil case, the general rule is that a prayer for relief must articulate with specificity the form of relief that is sought. Francis T. Zappone Co. v. Mark, 197 Conn. 264, 269-70, 497 A.2d 32 (1985); Leone v. Knighton, 196 Conn. 494, 497-98, 493 A.2d 887 (1985); Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 655, 353 A.2d 714 (1974). A party who fails to comply with this rule runs the risk of being denied recovery.
In the administrative context, a proper claim for relief serves the equally vital function of establishing the jurisdictional authority of the tribunal. Unlike the general jurisdiction of the Superior Court; Carten v. Carten, 153 Conn. 603, 612, 219 A.2d 711 (1966); the jurisdiction of an administrative body is not to be presumed and must be established affirmatively by the notice of hearing and statement of charges in any given case. Just recently, we held that the existence of an employee-employer relationship is a jurisdictional fact
The critical jurisdictional fact in the present case was the licensure status of the plaintiff at the commencement of the proceedings. The authority of the board is contingent upon a showing that a respondent is a “physician” subject to its disciplinary power. General Statutes § 20-13c. According to § 20~13a (5), a “physician” is any “person licensed pursuant to [chapter 370].” In its statement of charges, the department did not specify any intention to pursue its options under § 19a-17 for a censure, letter of reprimand or civil penalty. Nor did the department include in its prayer for relief a general request for any administrative action that, in the board’s discretion, might be appropriate in this case. Having committed itself to seeking only a license revocation, the department disabled itself from invoking other sanctions theoretically authorized by § 19a-17 as a basis for board jurisdiction. In short, we conclude that the narrowly drawn prayer for relief rendered the case subject to dismissal for lack of jurisdiction.
Our conclusion is analogous to the holdings of courts in other states that have dismissed complaints against judges who no longer hold office when formal proceedings are initiated. In In re Fienberg, 139 Vt. 511, 512,
Arguably, the board in this case might have had similar continuing jurisdiction to levy a monetary fine on the plaintiff pursuant to § 19a-17, which authorizes the assessment of a civil penalty of up to $1000 on any “practitioner.” The plaintiff, while no longer a “physician” within the meaning of § 20-13a (5), might still have been subject to nonlicensure sanctions applicable to a “practitioner.” But see Mangels v. Commissioner of Motor Vehicles, 40 Conn. Sup. 226, 228-30, 487 A.2d 1121 (1984) (concluding that the commissioner of motor vehicles lacked jurisdiction to levy a fine against a former licensee even though the misconduct underlying the fine took place during the period of licensure). Given the limited form of relief sought in this case, however, we do not reach the merits of this question.
Our conclusion that the board lacked the power to revoke a physician’s expired license does not strip the board of the powers it needs to protect the public from renegade medical practitioners. At the outset, we doubt that most physicians would consciously elect the forfeiture of their entire Connecticut practices merely to evade licensure overview in this state. More important, the board is authorized, by its own regulations, to deny
To fulfill the mandate of these regulations, the department has broad authority to conduct whatever investigations may be necessary to gather and preserve evidence of misconduct for eventual use against a former licensee who applies for relicensure. General Statutes § 19a-14 (a) (11) empowers the department to “[cjonduct any necessary investigation and follow-up in connection with complaints regarding persons subject to regulation or licensing by the department.” (Emphasis added.) In addition, § 19a-14 (a) (12) authorizes the department to “[pjerform any other function necessary to the effective operation of a board . . . and not specifically vested by statute in the board . . . .” Nothing in the language of these provisions limits the department’s investigatory power to current license holders. To the contrary, § 19a-14 (a) (11) plainly applies to all “persons subject to regulation or licensing.” A former licensee who retains the option of applying for relicensure continues to be “subject to” the regulatory authority of the department, particularly if complaints have been filed against him or her. These provisions confer sufficient regulatory authority upon the department and the board to enable them to carry
There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal.
In this opinion the other justices concurred.
General Statutes (Rev. to 1983) § 19a-88 (b) provides that “[ejach person holding a license to practice medicine . . . shall, annually, during the month of his birth, register with the department of health services . . . . ” Subsection (f) provides that the license of “[a]ny person who fails to comply with the provisions of this section . . . shall become void” upon the expiration of a ninety day renewal period.
Because we conclude that the license expired by operation of law, we need not consider what effect, if any, the surrender of the license might have had on the jurisdiction of the board. We note, however, that the power of a physician unilaterally to surrender a medical license is an unsettled point of law. The plaintiff argues that Gavlas v. State Department of Health, 108 Conn. 86, 142 A.2d 388 (1928), held that the surrender of a license to an appropriate agency is tantamount to a revocation and therefore divests the board of jurisdiction in this case. As the defendant correctly notes, however, Gavias did not involve the problem of a surrender in the face of imminent disciplinary charges. Courts in other jurisdictions have held, under varying circumstances, that licensees are not entitled to surrender their licenses as of right, during the pendency of disciplinary proceedings, in order to thwart agency jurisdiction. See, e.g., Boedy v. Department of Professional Regulation, 433 So. 2d 544 (Fla. App. 1983); Cross v. Colorado State Board of Dental Examiners, 37 Colo. App. 504, 508, 552 P.2d 38 (1976); Cal Pacific Collections, Inc. v. Powers, 70 Cal. 2d 135, 139-40, 449 P.2d 225, 74 Cal. Rptr. 289 (1969). In addition, it may be significant that no statute in Connecticut expressly permits or prevents a physician from surrendering his or her license. This lack of statutory direction is quite evident in light of the specific provision terminating a physician’s license, by operation of law, if a timely renewal is not sought. See footnote 1, supra.
“[General Statutes (Rev. to 1983)]. Sec. 19a-17. (Formerly Sec. 19-4s). DISCIPLINARY ACTION BY DEPARTMENT, BOARDS AND COMMISSIONS, (a) Each
“(1) Revoke a practitioner’s license.”
“[General Statutes] Sec. 20-8a. Connecticut medical examining board, (a) There shall be within the department of health services a Connecticut medical examining board. Said board shall consist of nine members appointed by the governor, subject to the provisions of section 4-9a, as follows: Four physicians practicing in the state; one physician who shall be a full-time member of the faculty of The University of Connecticut School of Medicine; one physician who shall be a full-time chief of staff in a general-care hospital in the state; and three public members. No professional member of said board shall be an elected or appointed officer of a professional society or association relating to his profession at the time of his appointment or have been such an officer during the year immediately preceding such appointment or serve for more than two full consecutive terms which commence after July 1, 1980. Professional members shall be practitioners in good professional standing and residents of this state.
“(b) All vacancies shall be filled by the governor for the remainder of the term vacated. Successors and appointments to fill a vacancy shall fulfill the same qualifications as the member succeeded or replaced.
“(c) The office of the board shall be in Hartford, in facilities to be provided by the department.
“(d) The board shall adopt and may amend a seal.
“(e) The governor shall appoint a chairperson from among such members. Said board shall meet at least once during each calendar quarter and
“[General Statutes] Sec. 20-13c. restriction, suspension or revocation of physician’s right to practice, grounds. The board is authorized to restrict, suspend or revoke the license or limit the right to practice of a physician in accordance with section 19a-17, when the board finds that such physician is unable to practice medicine with reasonable skill or safety for any of the following reasons: (1) Physical illness or loss of motor skill, including but not limited to deterioration through the aging process; (2) emotional disorder or mental illness; (3) abuse or excessive use of drugs, including alcohol, narcotics or chemicals; (4) illegal, incompetent or negligent conduct in the practice of medicine; (5) possession, use, prescription for use, or distribution of controlled substances or legend drugs, except for therapeutic or other medically proper purposes; (6) misrepresentation or concealment of a material fact in the obtaining or reinstatement of a license to practice medicine; or (7) violation of any provision of this chapter or any regulation established hereunder.”