Opinion
No. 2416 C.D. 2011
10-23-2012
Michael J. Oakes, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Osteopathic Medicine, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Michael J. Oakes, D.O. (Oakes) petitions for review of an order of the State Board of Osteopathic Medicine (Board). The Board's order suspended Oakes' license to practice osteopathic medicine in Pennsylvania, but immediately stayed the suspension and imposed a minimum three-year period of probation, with the condition that Oakes continue to participate in a drug dependency treatment program. We affirm the Board's order.
A prosecutor of the Pennsylvania Department of State, Bureau of Professional and Occupational Affairs (Bureau), initiated the underlying matter by issuing a rule to show cause (the rule) why the Board should not suspend, revoke, or otherwise restrict Oakes' license. The rule alleged that on October 15, 2007, Oakes attended a Board-ordered mental/physical examination conducted by Robert M. Wettstein, M.D. The rule alleged that Dr. Wettstein "opined that [Oakes] has opioid dependence that is in full, early remission and that [he] is able to practice medicine with the requisite skill and safety if he participates in a structured treatment and monitoring program for at least three years." (Rule Factual Allegation no. 5.) Based upon its factual allegations, the Bureau, relying upon Section 15(a)(5) of the Osteopathic Medical Practice Act (the Act), sought an order from the Board. Oakes, through his then-attorney, admitted the truth of the factual allegations.
Act of October 5, 1978, P.L. 1109, as amended, 63 P.S. § 271.15(a)(5). Section 15(a)(5) of the Act provides:
The Board shall have authority to refuse, revoke or suspend the license of a physician for any of the following reasons:
. . .
(5) Being unable to practice osteopathic medicine . . . with reasonable skill and safety . . . by reason of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or other type of material, or as a result of any mental or physical condition. The Board shall, upon probable cause, have authority to compel a physician to submit to a mental or physical examination by physicians designated by the Board.
Oakes' attorney filed a notice of withdrawal with the Bureau. Consequently, when the Board sent a notice of a hearing before a hearing examiner, the notice was sent only to Oakes.
The matter was assigned to a hearing examiner, who conducted a hearing on June 16, 2011. The hearing transcript indicates that Oakes did not arrive at the time of the hearing and that, after waiting approximately fifteen (15) minutes, the hearing examiner proceeded with the hearing without Oakes. During the hearing, the prosecutor offered no live or deposition testimony. Rather, the prosecutor offered three documents: (1) the rule; (2) Oakes' answer to the rule; and (3) a letter from Dr. Wettstein regarding his opinion of Oakes' drug dependency, and its remission, as well as his opinion regarding Oakes' ability to practice medicine safely.
As indicated above, Oakes admitted to allegation no. 5 of the rule. Dr. Wettstein's letter referenced a number of medical and hospital records dated between 2006 and 2007. In his letter, Dr. Wettstein recounted the severe physical injuries Oakes sustained while serving in the United States Navy in 2001 and the pain treatment he received for his injuries following surgeries. Dr. Wettstein opined that Oakes developed an opioid dependency during the course of the pain treatment, but that he was in remission and could safely provide medical services if he remained in a treatment program for at least three years.
The hearing examiner acknowledged that the letter from Dr. Wettstein was unsubstantiated hearsay, and thus, the hearing examiner acknowledged that she could not rely upon the letter in forming any factual findings. The hearing examiner based her decision on Oakes' admission to allegation no. 5, concluding that his admission was sufficient to support a finding that Oakes has an opioid dependency, which is in remission, but he is able to safely practice medicine if he remains in a treatment program for at least three years.
In this appeal, Oakes, acting pro se, raises the question of whether the Bureau satisfied its burden of proof with regard to his alleged opioid dependency and need for a structured treatment for at least three years. Oakes argues in significant part that Dr. Wettstein's letter is insufficient to support the hearing examiner's decision, rather than arguing that his admission to allegation no. 5 is insufficient to support the hearing examiner's decision. Nevertheless, we will proceed to consider whether the hearing examiner had sufficient evidence to support her key finding and conclusions.
Our review of the Board's order is limited to considering whether necessary factual findings are supported by substantial evidence, whether the Board erred as a matter of law, and whether any constitutional rights were violated. Barran v. State Bd. of Medicine, 670 A.2d 765, 767 n.3 (Pa. Cmwlth.), appeal denied, 544 Pa. 685, 679 A.2d 230 (1996).
In professional licensing matters, the Bureau bears the burden to prove its case by a preponderance of the evidence. Stoner v. Bureau of Prof'l and Occupational Affairs, 10 A.3d 364, 371-72 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 34 A.3d 834 (2011). The term "preponderance of the evidence refers to the standard of degree of persuasion which [a party] must . . . achieve[]." Bd. of Supervisors of Shenango Twp. v. McClimans, 597 A.2d 738, 741 (Pa. Cmwlth. 1991), appeal granted, 530 Pa. 635, 606 A.2d 904 (1992). Courts have described a preponderance of the evidence as evidence that has sufficient weight to "tip the scales on the side of the plaintiff," Se-Ling Hosiery v. Marguilies, 364 Pa. 45, 49, 70 A.2d 854, 856 (1950), and as "such proof as leads the fact-finder . . . to find that the existence of a contested fact is more probable than its nonexistence," Sigafoos v. Pennsylvania Bd. of Probation and Parole, 503 A.2d 1076, 1079 (Pa. Cmwlth. 1986). Moreover, in Stoner, we noted that the preponderance standard in professional licensing matters requires proof by a preponderance of "clear and satisfactory" evidence, because of the potential that "a highly trained professional may lose his ability to earn a livelihood and suffer damage to his professional and personal reputation." 10 A.3d at 372.
The Court has clarified, however, that the reference in professional misconduct matters to evidence that is "clear and satisfactory" does not change the burden of proof, but is rather meant to modify the proper burden of proof by a preponderance. See Starr v. State Bd. of Med., 720 A.2d 183, 191 (Pa. Cmwlth. 1998). In Starr, the Court referred to the genesis of the "clear and satisfactory" evidence standard. Indeed, one of the earliest cases to refer to "clear and satisfactory" evidence in considering whether a party has proved its case by a preponderance, Lemisch's Case, 321 Pa. 110, 184 A. 72 (1936), noted that "a preponderance of the evidence is necessary to establish an attorney's unprofessional conduct and the proof of such conduct should be clear and satisfactory." Lemisch's Case, 321 Pa. at 116, 184 A. at 74. The Supreme Court in Lemisch's Case cited to decisions from the state of Wisconsin, including In re Orton, 54 Wis. 379, 11 N.W. 584 (1882), where the Supreme Court of Wisconsin, in considering an attorney's appeal of disciplinary action affecting his license to practice law, noted that charges of misconduct "should be established by clear and satisfactory evidence, and cannot rest in doubtful and uncertain inferences." In re Orton, 54 Wis. at 386, 11 N.W. at 587. Thus, as suggested by this Court in Starr, the requirement of "clear and satisfactory" evidence suggests that affirmative, rather than inferential, evidence is the type of evidence that must be apparent from the record. When the evidence is of such a character, and where, as credited by the Board, the evidence "tips" in the favor of the moving party, the burden of proof by a preponderance of clear and satisfactory evidence has been satisfied.
In this case, Oakes did not attend the hearing and did not offer any evidence. Thus, there is no evidence on his side against which to weigh the evidence the Board submitted. An admission by a licensee to a factual allegation can constitute evidence of such character that may in itself constitute a preponderance of the evidence. Further, as suggested above, such evidence can also be clear and satisfactory if the admission admits an affirmative fact, leaving no need for a stretch to inferential fact finding.
The Superior Court has discussed the nature and effect of "judicial admissions" as follows:
A judicial admission is an express waiver made in court or preparatory to trial by a party or the party's counsel, conceding for the purpose of trial, the truth of the admission. The mere fact that a party expressly or impliedly makes an admission in the pleadings does not entitle the admission to be considered as such until it is placed on the record. In order to take advantage of the admission contained in the pleadings, the specific paragraphs of the pleadings in which the allegations appear must be offered into evidence. Such admissions are properly placed in evidence when specific parts of the statement, together with the defendant's answers not denying the averments, are offered into evidence. An allegation in a pleading which is specifically denied in a defensive pleading does not constitute a judicial admission and may not be admitted into evidence.
In this case, Oakes admitted that Dr. Wettstein believed he was opioid dependent and needed to participate in a structured treatment program for at least three years. This admission was evidence of an affirmative nature that, on balance with the lack of evidence from Oakes, constitutes a preponderance of evidence. Therefore, we conclude that the Board satisfied its burden of proof with regard to its claims regarding Oakes' opioid dependency, which although in remission, warrants his continued participation in a treatment program for at least three years.
Accordingly, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 23rd day of October, 2012, the order of the State Board of Osteopathic Medicine is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE COHN JUBELIRER
I respectfully dissent. Although this is a difficult case, I do not believe there is substantial evidence in the record to support a finding or conclusion that Michael J. Oakes (Oakes) is currently unfit to practice osteopathic medicine. The conclusion of the State Board of Osteopathic Medicine (Board) that Oakes "is unable to practice osteopathic medicine with reasonable skill and safety to patients unless he participates in a structured treatment and monitoring program" is supported only by a presupposition inferred from hearsay evidence, without any context or basis in the competent evidence of record. (Final Adjudication and Order, Conclusions of Law ¶ 3.) Therefore, I would reverse the Order of the Board.
As the Board points out in its opinion, the legal conclusion that Oakes is in violation of Section 15(a)(5) of the Osteopathic Medical Practice Act (Act), 63 P.S. § 271.15(a)(5), must be supported by factual determinations that: (1) Oakes "is unable to practice osteopathic medicine with reasonable skill and safety to patients"; and (2) this inability is due to certain statutorily enumerated factors, which include excessive drug use and any mental or physical condition. (Final Adjudication and Order at 4.) The Board itself admits, however, that the only evidence adduced to support these two factual determinations is a corroborated hearsay statement that lacks any context or factual support. (Final Adjudication and Order at 5-6.)
Act of October 5, 1978, P.L. 1109, as amended. Section 15(a)(5) provides in relevant part that the Board may revoke or suspend the license of a physician for "[b]eing unable to practice osteopathic medicine and surgery with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or other type of material, or as a result of any mental or physical condition." 63 P.S. § 271.15(a)(5).
A factual finding must be supported by substantial evidence, which has been defined as "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, [but must be] . . . more than a scintilla and must do more than create a suspicion of the existence of the fact to be established.'" Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 874 (Pa. Cmwlth. 2008) (quoting Lewis v. Civil Service Commission of Philadelphia, 518 Pa. 170, 175, 542 A.2d 519, 522 (1988)) (alteration and omission in original). The parties agree that Dr. Wettstein's letter regarding Oakes' fitness to practice is hearsay. "Hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand." Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976) (first two emphases in original) (third emphasis added). The Board held in its Final Adjudication that a single statement in Dr. Wettstein's letter, that Oakes "is able to practice medicine with reasonable skill and safety to patients only if he participates in a structured treatment and monitoring program for at least the next three years," (Letter from Dr. Wettstein to the Board's prosecutor (November 2, 2007) at 7), is corroborated by Oakes' Answer to the Commonwealth's Order to Show Cause, (Final Adjudication and Order at 5-6).
In its Order to Show Cause, the Commonwealth alleges that Oakes:
attended a Board[-]ordered Mental/Physical examination by Robert M. Wettstein, M.D.[,] on October 15, 2007. Doctor Wettstein opined that [Oakes] has [o]pioid dependence that is in full, early remission and that [Oakes] is able to practice medicine with the requisite skill and safety if he participates in a structured treatment and monitoring program for at least three years.(Order to Show Cause ¶ 5 (emphasis added).) In his Answer to the Order to Show Cause, Oakes admits this allegation. (Answer ¶ 5.) It is important to differentiate between what such an admission does and does not admit. It does admit that Oakes submitted to an evaluation by Dr. Wettstein and that Dr. Wettstein opined that Oakes is able to practice medicine with reasonable skill and safety if he undergoes treatment and monitoring. It does not, however, admit anything beyond that. It does not admit that Oakes actually is unfit to practice without treatment and monitoring. It does not admit that Oakes suffers or has suffered from opioid dependence. It does not even admit that Oakes has ever used an opioid drug.
In his brief, Oakes states that he was injured while serving in the United States Navy and that, as a result of this injury, while he was in an orthopedic surgery residence program, he experienced a progression of his injury necessitating the prescription of painkillers. (Oakes' Br. at 18.) He states that for two months he took two more Percocet tablets than the recommended maximum daily dosage, he then had to discontinue the residency program to undergo surgery, he did not use painkillers regularly after the surgery, and he underwent 60 days of inpatient treatment, ending on January 2, 2007. (Oakes' Br. at 18.) None of this information is of record, however. --------
The Board determined that this admission corroborated that part of Dr. Wettstein's letter to the Board's prosecutor in which Dr. Wettstein opined that Oakes "is able to practice medicine with reasonable skill and safety to patients only if he participates in a structured treatment and monitoring program for at least the next three years." (Letter from Dr. Wettstein to the Board's prosecutor (November 2, 2007) at 7.) In its Final Adjudication, the Board determined that it could infer that Dr. Wettstein would not have recommended monitoring and treatment if Oakes did not suffer from one of the conditions enumerated in Section 15(a)(5) of the Act, and that "it is also logical to assume that [Oakes'] inability to practice safely is due to one of these conditions." (Final Adjudication and Order at 6) (emphasis added). These inferences presuppose that there is a basis for Dr. Wettstein's conclusion. Such a presupposition by inference is not substantial evidence. The basis for Dr. Wettstein's conclusion, which is set forth in the remainder of Dr. Wettstein's letter, remains uncorroborated and, therefore, may not be considered, per the Walker rule. Absent the remainder of Dr. Wettstein's letter, there is a dearth of evidence. Without considering the remainder of Dr. Wettstein's letter, we do not know Dr. Wettstein's qualifications or areas of specialty. We do not know the facts or observations that support his opinion that Oakes is unfit to practice. All we have to support the Board's conclusion about Oakes is the fact that a medical doctor of unknown qualifications or specialty opined that Oakes is able to practice only if he undergoes treatment and monitoring. In order to accept this evidence as "adequate to support a conclusion," a reasonable mind would have to assume that because a medical doctor of unknown qualifications and specialty offered a single-sentence opinion (which is the only evidence the Board may consider under the circumstances of this case) that there are facts that support the Board's conclusion. I would conclude that a bare, one-sentence conclusory opinion of a doctor of unknown qualifications, based on unknown facts, is not such relevant evidence upon which a reasonable mind could accept as adequate to conclude that Oakes today, almost five years after Dr. Wettstein wrote his letter, actually is unfit to practice and should have his license suspended or revoked. Therefore, I do not believe that Commonwealth met its burden to show that Oakes is "unable to practice osteopathic medicine and surgery with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of drugs . . . or as a result of any mental or physical condition," pursuant to Section 15(a)(5) of the Act, 63 P.S. § 271.15(a)(5). Because the Commonwealth did not meet its initial burden, the burden never shifted to Oakes to make any refutation and it is of no moment that Oakes did not attend the hearing or submit any evidence.
For these reasons, I would reverse the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Gen. Equip. Mfg. v. Westfield Ins. Co., 635 A.2d 173, 181 (Pa. Super. 1993), appeal denied, 537 Pa. 663, 644 A.2d 1200 (1994). Thus, Oakes' admission to allegation no. 5 may provide an adequate evidentiary basis upon which the hearing examiner rendered her key factual finding.