Prof. Jones critiques the holding of the Supreme Court of Virginia in Fetta v. Va. Bd. of Medicine, 421 S.E.2d 410 (Va. 1992)

Jones, John Paul

English

University of Richmond

University of RichmondUR Scholarship RepositoryLaw Faculty Publications School of Law1993Unnecessary Immunity: Fetta v. Board of MedicineJohn Paul JonesUniversity of Richmond, jjones@richmond.eduFollow this and additional works at: http://scholarship.richmond.edu/law-faculty-publicationsPart of the Administrative Law CommonsThis Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in LawFaculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contactscholarshiprepository@richmond.edu.Recommended CitationJohn Paul Jones, Unnecessary Immunity: Fetta v. Board of Medicine, Va. Law., Mar. 1993 at 21Fetta v. Board of Education by JOHN PAUL JONES At an unnecessarily high cost for patients who complained of unprofessional and sexually invasive treatment, U1e Supreme Comt of Virginia last fall brought down the curtain on U1e third of three judicial acts of review in Fetta v. Board of Medicine) In the end, a doctor won immunity for his misconduct and the Board of Medicine los t its a ttempt to revoke his license because it unfairly interfered with an evidentiary hearing. The conduct of disciplinary proceedings by licensing boards is no doubt better for the admonition given the Board of Medicine but U1e net result need not have been so distasteful. Dr. Patrick J. Petta had treated several women patients using procedures which lacked an accepted therapeutic pur-pose and were beyond the legal scope of chiropractic medicine, concluded the hearing officer after a formal evidentiary hear-ing. The hearing officer also found that the doctor had com-mitted sexual battery on two patients. Tainted Evidentiary Proceeding Four physician members of the Board of Medicine attended Uuit heating, put numerous questions to witnesses and, at least once, offered the hearing officer an opinion on the admissibili-ty of certain evidence. A quorum of the Board, which included the four doctors who had attended the evidentiary hearing, sub-sequenUy reviewed the hearing transcript and heard arguments by counsel. It then voted, 14-0, to adopt U1e hearing officer 's findings of fact and conclusions of law, and to revoke Dr. Petta's license to practice chiropractic. Dr. Petta then appealed to ilie circuit court, claiming Ulat participation by Board members in Ule evidentiary hearing vio-lated his right to a hearing conducted eiilier by the Board or by a heating officer. The circuit court vacated the Board's deci-sion to revoke Dr. Petta's license and held iliat the presence of Board members at an evidentiary hearing assigned to a hearing officer was unlawful, so tainting Ule Board's subsequent deci-sion as to warrant dismissal of the charges against Dr. Fetta.2 Although the record made it clear that the Board doctors who attended the hearing were more than simply silent specta-22 tors, their presence alone was, for the circuit court, enough to violate the doctor's right under Section 54.1-110 which reads: Every hearing in a contested case shall be conducted in accordance with the provisions of the Administrative Process Act (Section 9-6.14:1 et seq.). When a hearing offi-cer presides, the regulatory board shall determine whether the hearing officer is to hear the case alone or whether the board is to hear the case with the hearing officer. The circuit court found that Section 54.1-110 offered the Board only two options: a hearing conducted by the Board (or at least a quorum) or a hearing conducted by a hearing officer alone. The Court of Appeals affumed, finding the fatal flaw to be the Board's decision to detail three members to "participate with the hearing officer."3 The Supreme Court considered that only the remedy ordered by the courts below was controversial enough to warrant review. Saying little about participatory error, nevertheless, the Court affirmed the decision below. Three courts reached the same two conclusions. First, when Board members visit an evidentiary heating, ask questions, and offer opinions on evidence (as permitted by the presiding offi-cer), they violate Section 54.1-110. Second, when the same Board members later join in the Board's deliberation, all par-ticipating members become legally incapable of passing judg-ment on the case. cessation of Presiding What ought to have preceded these conclusions of law is a finding of fact that the hearing officer stopped presiding- that is, directing, controlling and governing proceedings. Any find-ing about the cessation of presiding, moreover , ought to be 1 fmnly grounded in record evidence, i.e., in ilie transcript of the administrative hearing. No such findings appeared in the opin-ions of the three courts reviewing Dr. Petta' s case. The only facts deemed worU1y of judicial mention were that the board doctors were allowed by the hearing officer to ask questions of the witnesses and, on at least one occasion, to offer an opinion on the admissibility of evidence. The former better buttresses VIRGINIA LAWYER the conclusion that the hearing officer never stopped presiding, for, otherwise, how could she still be in a position to allow or to refuse questions by the inter-loping board doctors? The latter proves nothing more than that an indulgent hearing officer was willing to listen. E lsewhere in the transcript lies additional evidence that the hearing officer never stopped presiding. At the outset, Dr. Fetta's counsel appealed to the hearing officer to exclude the intruding board doctors, and then abided by her decision to the contrary. When Dr. Fetta's counsel later objected to the Board doctors putting questions to witnesses, both sides accept-ed the hearing officer's ruling tltat she would allow some ques-tions by the Board doctors but she would control the privilege on a question-by-question basis. In fact, it was the hearing officer's own stated conclusion that, however the Board doc-tors might describe their contributions, she con tinued to preside because she controlled their questions and because her findings of fact and conclusions of law would be what constrained the full Board's decision afterward. The Board doctors complied often enough so that the hearing officer' s explicit finding that she, and not they, presided deserves the judicial deference such a finding of fact is ordinarily due. After all, she was there at the time, and the judges of tlte reviewing courts were not. A careful reading of the transcript suggests that t11e Board doctors usurped not the presiding power of the hearing officer but the prosecuting duty of the Board's hapless counsel. wrong Adjudicative Event If the Board doctors did not preside, then the evid~ntiary hearing was not legally deficient as measured by Section 54.1-110. The three courts focused on the wrong adjudicative event. All three recognized the harm to proper adminis-trative decision-making which permitted some members of a collective decision-making body to enter into the eviden-tiary hearing itself while leaving others to settle for its printed record . But all three courts pointed in the wrong direc-tion in isolating the resultant error. What the four Board doctors did at the evidentiary hearing was permissible. What they did at the deliberative meet-ing afterward was not. The evidentiary hearing and its report could still have formed the basis for proper Board action against Dr. Fetta. MARCH 1993 The Board should have excused those members who attended the evidentiary hearing from its subsequent delibera-tions. Because the Board has 16 mem-bers, and only four attended Dr. Fetta's hearing, others sufficient for the Board's quorum of 11 wou ld still have been available to pass judgment on the hear-ing officer's report. The Board, howev-er, did not exclude the four who had attended the evidentiary hearing, and the case did not reach court until it was too late for a saving judicial order to exclude them. As a federal court of appeals said in a -leading case about federal agency deci-sional bias, "[l]itigants are entitled to an impartial tribunal whether it consists of one man [sic] or 20 and there is no way which we know of whereby the influ-ence of one upon the others can be quan-titatively measured."4 In that case, the court found from a speech by the Chair of the Federal Trade Commission that he had prejudged a complaint of false advertising by the school, so the court invalidated the Commission's subse-quent decision in which the Chair had participated. A Better Response What would have been a better response by the Virginia courts to tainted deliberations rather than ordering the Board of Medicine to dismiss the case permanently, leaving serious charges against Dr. Fetta to be ignored forever? Cinderella Career and Finishing School suggests one answer. The court remanded the case to the Commission for a new decision, directing the Commis-sion to exclude its chair from its confer-ence. The court apparently assumed that Ute other commissioners could, given a fresh start, produce a lawful decision even though Utey had once been exposed to their chair's biased views. The court's assumption was especially justified in Cinderella Career and Finishing School because the Commission's basic law required it to make a decision solely on the basis of what it found in the record developed in a formal evidentiary hear-ing, and authorized the court to set aside a Commission decision that was not based on substantial evidence found in that record. Thus, the court could remand knowing it held a trump card should it find the Commis-sion again improperly influ-enced in producing a new deci-sion respecting the appellant. A decision by the Board of Medicine to revoke a medical license is likewise constrained by the basic law. It, too, must be supported by substantial evi-dence in the record produced after a formal evidentiary hear-ing. A reviewing Virginia court would therefore have the same power to remand a new Board decision respecting Dr. Fetta's license if the Board's new decision was not adequately justified by explicit refer-ence to the record produced at the evi-dentiary hearing. Rule of Necessity Even if it were assumed that the other Board members could not be sufficiently rehabilitated to make another-litis time unbiased-decision on the record after once being exposed to the views of those who had attended the evidentiary bear-ing, Ute Rule of Necessity offers another alternative for a reviewing court. By tile Rule of Necessity, a judge who would ordinarily be disqualified for bias may nevertlleless hear a case when there just is no other judge to do it. The United States Supreme Court traced the origins of the Rule back more than five centuries in common law and then applied it in United States v. Will5 to justify a federal court's bearing of a challenge to legisla-tive adjustment in the compensation of federal judges. Kennetll Culp Davis, in his widely respected Administrative Law Treatise, wrote more than a decade ago tllat "[t]he doctrine is so clear that it is seldom litigated . . .. " Nonetlleless, there are numerous cases in which the Rule is applied, not only to judges, but to admin-istrative board members deciding cases. Some are quite recent. In 1991 , for example, the Supreme Court of Arkansas applied the Rule in Acme Brick Co. v. Missouri Pacific R. Co. upholding an order by tile state's Highway Commis-sion.6 In 1990, the Court of Appeals of Missouri applied it to affirm a case deci-sion by a city council in Fitzgerald v. City of Maryland Heights. 7 Reviewing Virginia courts should have applied the Rule in Petta if they 23 concluded that rehabilitation could not wipe the stain of bias even from those Board members who had not taken part in the evidentiary hearing. "It is well settled that where the Legislature vests in a particular officer or administrative agency the sole power of investigation and decision, the Legislature's purpose cannot be defeated by disqualification of the designated officer or agency on the ground of alleged prejudgment or bias."s The failure of all three courts to apply the rule in Fetta frustrated the will of the General Assembly that the Board of Medicine decide license revocation cases. The failure also injured the legiti-mate expectations of complaining patients that their charges of sexual mis-conduct would receive serious audience. When the Rule of Necessity is applied to decisions by judges, it sometimes per-mits even the final say by a biased or prejudiced decider. When the Rule is applied to decisions by agencies, it usu-ally bas a much less significant impact because of the availability of judicial review. Applied to the Board of Medi-cine in Fetta, the Rule would have per-mitted the Board no more than was per-mitted t11e FTC in Cinderella Career and Finishing School, a chance to make a proper administrative decision-subject to review by the courts. Dr. Fetta would still have had the safeguard of review by the same circuit court and court of appeals that invalidated the Board's orig-inal decision before permitting the Board (and U1e complaining patients) their sec-ond chance. Instead, the doctor got court-confen·ed immunity. Every administrative board and agency empowered to decide cases is bound to avoid not only acting improper-ly but also merely appearing to do so. That duty is not well served by a board which interferes with evidentiary hear-ings after it assigns them to hearing offi-cers . The practice surely suggests the board was prejudging a case not yet properly before it, and it surely under-mines the authority of the officer suppos-edly enjoying Ule board's trust and confi-dence sufficiently to be assigned to pre-side in its stead. Just such a practice was apparently well established at the Board of Medicine, however, and so it was high time that the Board be admonished. For this discipline, tlle three Fetta judicial decisions are to be applauded. For unnecessarily affording the doctor immu-nity for his misconduct, however, the same decisions ought properly to be rued. Notes 1. No . 911526, 1992 VA LEXIS ® 91 (Sup. Ct. Sept. 18, 1992). 2. Fetta v. Board of Medicine, 20 Va. Cir. 334 (Richmond, 1990). 3. Board of Medicine v. Fetta, 12 Va. App. 1173, 408 S.E.2d 573 (1991). 4. Cinderella Career and Finishing School, Inc. v. FTC, 425 F.2d 583, 592 (D.C. Cir. 1970). 5. 449 u.s. 200 (1980). 6. 821 S.W.2d 7 (Ark. 1991 ). 7 . 796 S.W.2d 52 (Mo. 1990). See 1A Michie's Jurisprudence, Administrative Law Section 7 at p. 213; 11A Michie's Jurisprudence, Judges Section 14; 73 UNKNOWN AND MISSING HEIRS LOCATED 24 Servtces to : GWIRTZ-DAVIS GENEALOGICAL SERVICE 211 Windsor Avenue Philadelphia, Pa. 19126 Area Code 215 CA 4-0862 Please Call Co/leer No Expense To The Estate Executors- Administrators Attorneys- Banks Corporations E stabhshed 1929 References supplted Court recognized experts Correspondents in the United States and throughout the world. Pleur Clip Thia Ad for fuhlrt Rtfrrtntt C .J .S, Public Administrative Law & Procedure Section 61(b) (1983). 8. Komyathy v. Board of Education, 348 N.Y.S.2d 28 (Sup. Ct. 1973) quoting from Matter of Kaney v. State Civil Ser-vice Commission, 77 N.Y.S.2d 8 (Sup. Ct. 1948). About the Author Professor .John Paul .Tones , (B.A., Marquette, J.D., San Diego, LL.M. , Yale) , teaches Administrative, Constitutional, and Admiralty Law at the Uni-versity of Richmond's T. C. Williams School of Law. .Tones is a member and former chair of the Virginia Bar Association's Administrative Law Section and visiting scholar at the U.S. Central Intelligence Agency. As a participant in the American Bar Association's Central and Eastern European Law Initiative, .Tones trav-eled to Albania last December to advise that new denwcracy's consti-tution drafting commission. Designed specifically for law firms • Commercial & Retail Collections • Medical & Subrogation Cases • For IBM-PC's & Networks • One Time Data Entry • User Friendly Pop-Up Windows • Automatic Forms & Letters • WordPerfect 5.1 lntefface • Complete Tickler System • Trust Accounting & Check Writing • Proven, Affordable, & Expandable Free Demonstration Program Available For Information Call (800) 827-1457 , ... JS Technologies, Inc. J • • , J 5001 West Broad St. .,.. Richmond, VA 23230 VIRGINIA LAWYER 

Unnecessary Immunity: Fetta v. Board of Medicine

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Unnecessary Immunity: Fetta v. Board of Medicine

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