Arizona court overturns decision of medical board

A physician denied due process at informal interview gets a new hearing; the state board says it has since implemented the judges' requirements.

By Tanya Albert, amednews staff. Oct. 7, 2002.

Six years ago, Arizona thoracic surgeon Dale F. Webb, MD, felt as if he had been blindsided by his state medical board.

He got a letter in the mail telling him to report for an "informal interview" with the board in April 1996. The letter didn't tell him he could have declined to be interviewed and requested a full, formal hearing instead.

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So he went to the "informal hearing." He didn't get a chance to ask questions of the physician who disagreed with the diagnostic measure Dr. Webb took with a patient who was diagnosed with cancer three months after visiting him. Board members told Dr. Webb he would have time to ask questions or respond to the expert who testified against him.

That time never came. At the end of the interview, the board found that Dr. Webb had engaged in "unprofessional conduct."

But Dr. Webb, believing that his due process rights had been trampled on, decided to challenge the board's decision. "It was intolerable," he said. "It was going to ruin the medical profession."

Shortly after the hearing, Dr. Webb filed a lawsuit in state court claiming that he had not received due process at the hearing. This summer, the Arizona Court of Appeals, Division One, agreed. In a rare ruling, the judges set aside the Arizona Medical Board's decision and remanded the case back to the board to hold a hearing that meets due process requirements outlined by the court in its opinion.

"Rarely do the courts get involved with what the state medical boards do," said Dale Austin, deputy executive vice president and chief operating officer for the Federation of State Medical Boards. "The courts aren't in a position of overturning medical board decisions. The frequency with which that occurs is pretty small."

Dr. Webb's case falls into that minority of cases. He is expected to have a new hearing by year's end.

"The court told the [Arizona Medical Board], 'You can't rule in a vacuum, you have to establish the standard of care and show how it is violated just like you would in a civil medical malpractice case,' " said Jeffrey L Bradford, one of the Phoenix attorneys who represented Dr. Webb. "That will turn out in time to be the most significant part of the ruling."

Establishing guidelines

The Arizona Appeals Court said that the state could not deprive a physician of a license without due process. And because the board can take action against a physician after an interview -- as opposed to being able to take action only after a hearing -- due process also needs to happen at an interview, the court said.

After an interview, the AMB can file a letter of concern or a letter of reprimand, issue a censure decree, set the time in terms of probation or even temporarily suspend a physician's right to practice medicine for up to 12 months.

To ensure due process in those hearings, the court said, the medical board must establish a deviation from an articulated standard of professional care, establish that the deviation resulted in actual harm and provide reviewable findings on both points. And those steps weren't taken in Dr. Webb's case, the court said.

At the 1996 interview, board members never asked Dr. Webb if he had questions for the witness who spoke out against his medical decisions. Dr. Webb was able to address the critiques of his work, but even that was significantly curtailed, according to the court.

Dr. Webb started to formulate a question, but according to court documents, he was cut off and told they couldn't go into details at that point.

"The board cannot base its findings ... upon either undisclosed evidence or personal knowledge of the facts," the court said. "Nor in our judgment can the board provide a fair hearing on an issue of negligence without identifying the standard of care and articulating the alleged deviation."

Beyond that, the court said, a physician must have a fair opportunity to respond to a negligence charge.

"It must do so in order to provide a reviewing court an opportunity for meaningful review," the court said.

The AMB -- which has increased its attention to physician due process over the past four years -- says the court opinion is a reminder that the board needs to continue to be vigilant about protecting physicians' rights.

"Most of the changes in the court opinion had already been covered," said Lisa McGrane, spokeswoman for the AMB.

The AMB's letter to doctors inviting them to an interview explains that the physician can waive the interview and request a formal hearing. Physicians at an interview are also told about their right to ask questions.

"The board constantly evaluates its processes and takes into consideration the rights of the physician and its duty to protect Arizona citizens," AMB said in a written statement. "Cases like Webb v. Arizona Board of Medical Examiners serve as reminders of the board's need to step up with purpose and thought."

Dr. Webb said he was happy that there is now Arizona case law that requires the board to listen to physicians and allows them to ask questions. Still, he said, he would like to see the Legislature pass a law that would allow physicians to take their case to a lay jury if they don't believe they have received due process before the medical board.

"When you have the kind of power that administrative law gives you, you have to be extremely careful," Dr. Webb said. "You have to give people a chance to defend themselves."

ADDITIONAL INFORMATION:

Case at a glance

Dale F. Webb, MD, v. The State of Arizona, by the Arizona Board of Medical Examiners

Venue: Arizona Court of Appeals, Division One
At issue: The Arizona appellate court said the Arizona Board of Medical Examiners, which is now known as the Arizona Medical Board, must give physicians due process, including informing them of their right to waive an "informal hearing" and their right to question witnesses who testify against them.
Potential impact: The Arizona Medical Board said the court ruling affirms changes they had made since the lawsuit was filed. Physicians say the ruling establishes case law that guarantees due process.

Weblink

Arizona Court of Appeals decision in Webb v. The State of Arizona, by the Arizona Board of Medical Examiners, in pdf (http://www.cofad1.state.az.us/opinionfiles/cv/cv010010.pdf)