Opinion
No. CV03 040 15 67
July 8, 2003
MEMORANDUM OF DECISION RE APPLICATION FOR STAY DATED MAY 30, 2003
The plaintiff in the above-captioned matter, Leonard Vigliatore, is moving to stay a revocation of his Connecticut physical therapy license. For the foregoing reasons, the plaintiff's motion is denied.
The record reveals the following facts. The plaintiff is a physical therapist, who from January 1999 to December 2000, was employed by Peak Wellness, Inc. of Greenwich (Peak Wellness). Prior to his employment with Peak Wellness, the defendant, Connecticut State Board of Examiners for Physical Therapists, ordered a consent order that placed the plaintiff's license on probation for a period of five years, based in part on the plaintiff's admitted engagement in, and conviction of, mail fraud. (Plaintiff's Memorandum, Exh. B, p. 3.) The consent order was issued on May 7, 1997, and provided, in part, that the plaintiff was responsible for providing reports from his supervisor to the State of Connecticut Department of Public Health (Department) indicating that he was practicing with reasonable skill and safety. Id.
I
During his employment with Peak Wellness, the plaintiff was accused of calling a client at home and offering to discount her rate for physical therapy treatment in return for her agreement to engage in social interactions with him. As a result of these allegations, the plaintiff's employer indicated that the plaintiff was incapable of practicing with reasonable skill and safety. Id. The Department thereafter proceeded to schedule a hearing to determine whether the plaintiff's physical therapy license should be revoked on the grounds that his conduct violated General Statutes § 20-73a.
General Statutes § 20-73a provides in relevant part:
The Board of Examiners for Physical Therapists shall have jurisdiction to hear all charges of conduct that fails to conform to the accepted standards of the practice of physical therapy brought against any person licensed as a physical therapist or physical therapist assistant and, after holding a hearing, written notice of which shall be given to the person complained of, the board, if it finds such person to be guilty, may revoke or suspend such person's license or take any of the actions set forth in section 19a-17. Any proceedings relative to such action may be begun by the filing of written charges with the Commissioner of Public Health. The causes for which such action may be taken are as follows: (1) Conviction in a court of competent jurisdiction, either within or without this state, of any crime in the practice of such person's profession; (2) illegal, incompetent or negligent conduct in the practice of physical therapy or in the supervision of a physical therapist assistant; (3) aiding or abetting the unlawful practice of physical therapy; (4) treating human ailments by physical therapy without the oral or written referral by a person licensed in this state or in a bordering state having licensing requirements meeting the approval of the appropriate examining board in this state to practice medicine and surgery, podiatry, natureopathy, chiropractic or dentistry; . . . (7) engaging in fraud or material deception in the course of professional services or activities; or (8) violation of any provision of this chapter, or any regulation adopted under this chapter . . .
On September 25, 2002, the defendant board, comprised of two physical therapists and one medical doctor, conducted a hearing on the charges. On February 19, 2003, the defendant issued a memorandum holding, inter alia: "In offering to reduce or eliminate the cost of the physical therapy in exchange for some type of social interaction with him, [the plaintiff] failed to treat [a client] with respect and dignity, demonstrated poor judgment, sought improper remuneration, violated the accepted standards of practice of physical therapy and engaged in incompetent and negligent conduct — all in violation not only of ethical standards but also in violation of [General Statutes] § 20-73a." (Plaintiff's Exh. B, p. 5.) Accordingly, the defendant held: "Based upon the record in this case, the above findings of fact and the conclusions of law, and taking into consideration [the plaintiff's] prior disciplinary action for engaging in mail fraud from 1982 through 1992, pursuant to the authority vested in it by Conn. Gen. Stat. § 19a-17 and § 20-73a, the Board orders that [the plaintiff's] Connecticut physical therapist license . . . be revoked."
On March 11, 2003, the plaintiff brought this administrative appeal against the defendant and the department. The plaintiff is now seeking a stay of his license revocation for the duration of time necessary to resolve his appeal.
The standard for granting a stay focuses on four factors: "(1) the likelihood that the appellant will prevail; (2) the irreparability of the injury to be suffered from immediate implementation of the agency order; (3) the effect of a stay upon other parties to the proceeding; and (4) the public interest involved." Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 456-57, 493 A.2d 229 (1985). The decision to grant a stay should necessarily encompass a "balancing of the equities," taking into consideration the aforementioned four-part test. Id. An application for a stay, such as the one at issue here, calls upon an exercise of this court's "general equitable powers." (Citations omitted.) Park City Hospital v. Commission on Hospitals Health Care, 210 Conn. 697, 700-01, 556 A.2d 602 (1989). Moreover, "`[i]n the consideration of applications for stay orders, the applicant must make a strong showing of the probability of succeeding on the merits of its appeal, of the probability of irreparable injury, and of the probability that the stay will not be harmful to the public interest or to other parties.' Waterbury Hospital v. Commission on Hospitals Health Care, 30 Conn. Sup. 352, 354-55, 316 A.2d 787 (1974)." (Emphasis added.) City of Bridgeport v. Dept. Soc. Serv., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0378995 (June 4, 2001, Skolnick, J.). This burden "erects a very substantial obstacle to any applicant for a stay order." Connecticut Life Health Ins. Guaranty Assn. v. Daly, 35 Conn. Sup. 13, 16, 391 A.2d 735 (1977).
The first factor in determining the justification for a stay is the likelihood that the plaintiff will prevail on his appeal. The probability that the plaintiff will succeed on his appeal is largely based on the discretion of the trial court reviewing the defendant's decision. On an appeal from an agency decision, the function of a reviewing court is to decide "in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts . . . Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given (a] statute by the agency charged with its enforcement . . ." (Citations omitted; internal quotation marks omitted.) Director, Retirement Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764, 771, 775 A.2d 981 (2001).
According to the plaintiff, the law defining what constitutes negligent or incompetent conduct is unclear with respect to physical therapists, and therefore, he was denied proper notice. More specifically, he claims that he "had no way of knowing that a mere phone call to a client, asking that client out socially . . . would constitute negligent or incompetent conduct in the practice of physical therapy." (Plaintiff's Memorandum, p. 9.) Accordingly, the plaintiff claims that he will prevail on appeal.
The record in this case reveals a different story. In its statement of charges, the Department notified the plaintiff that he was subject to disciplinary action pursuant to General Statutes § 20-73a, including but not limited to § 20-73a (2). (Plaintiff's Memorandum, Exh. A, p. 3.) In this case, the defendant found that the plaintiff telephoned his client at her home and offered to discount her rate for physical therapy treatments in return for her agreement to engage in social interactions with him. (Plaintiff's Memorandum, Exh. B, p. 4.) The board also found that the client's testimony was credible and that the plaintiff's was not truthful. Id.
The plaintiff states in his memorandum that the basis for revoking of his license was the result of "a mere phone call to a client, asking that client out socially." (Plaintiff's Memorandum, p. 9.) The plaintiff claims that the defendant acted unreasonably and arbitrarily because the record did not have a substantial basis of fact from which negligent or incompetent conduct could reasonably be inferred by the plaintiff's phone calls. It could not be clearer in the record, however, that this was not the basis for revoking the plaintiff's license. Rather, the basis for the revocation was the plaintiff's conduct in offering to reduce a female client's physical therapy bills on condition that she "work it off socially" by doing what he wanted her to do. (Plaintiff's Memorandum, Exh. B., p. 5.)
Section 20-73a provides that a physical therapist's license may be revoked for "(2) illegal, incompetent or negligent conduct in the practice of physical therapy . . . or (7) [for] engaging in fraud or material deception in the course of professional services or activities . . ." The aforementioned quid-pro-quo arrangement advanced by the plaintiff constitutes negligent, unethical and inconsistent practice by a physical therapist. In addition, this type of conduct is fraudulent and materially deceptive.
The defendant (hearing board) was comprised of two physical therapists and one medical doctor. "As long as the board hearing and deciding a licensing matter is composed of at least a majority of experts in the field involved in the case, the board may rely on its own expertise in evaluating charges against persons licensed by the board and the requisite standard of care by which to judge such cases." Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 525, 560 A.2d 403 (1989); see also Jutkowitz v. Department of Health Services, 220 Conn. 86, 110, 596 A.2d 374 (1991); Leib v. Board of Examiners for Nursing, 177 Conn. 78, 89, 411 A.2d 42 (1979); Jaffe v. State Department of Health, 135 Conn. 339, 348-50, 64 A.2d 330 (1949). Under these facts, the board had the authority to make its findings concerning the plaintiff's professional care and responsibility. The plaintiff's argument that the defendant lacked a substantial basis from which to find negligence or incompetence is without merit.
There is substantial evidence in the record to support the defendant's findings. There is likewise no evidence to suggest that the defendant acted unreasonably, arbitrarily or illegally, or in abuse of its discretion. Similarly, there is no basis to suggest that the defendant erroneously applied General Statutes § 20-73a or that the defendant failed to put the plaintiff on notice that it was pursuing its claim under § 20-73a. For the foregoing reasons, the plaintiff has not made an adequate showing of a probability of succeeding on the merits of his appeal.
The remaining three factors pertinent to a motion to stay similarly sound in favor of the defendant. According to the defendant, the plaintiff demonstrated poor decision making and poor professional judgment. Moreover, he violated accepted professional and ethical standards in the practice of physical therapy, and engaged in incompetent and negligent conduct. These conclusions are supported by the record. The defendant has an interest in, and an obligation to, protect the sanctity of the physical therapy profession and to assure the safety and security of physical therapy patients as best it can. Although revocation of the plaintiff's license will have a significant impact on his livelihood, that does not outweigh the potential detriment to the other parties to this suit or to the clients the plaintiff may treat in the interim. This court finds that it is in the better interest of society and of these parties that the revocation of the plaintiff's license remain in effect pending a resolution of the plaintiff's appeal.
For the foregoing reasons, the plaintiff's application for stay is hereby denied.
WOLVEN, J.