Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs
In Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 557, P 7, 48 P.3d 505, 507 (App. 2002), the licensing board investigated a patient's complaint against a surgeon for failure to timely test for and diagnose a condition later proven to be cancerous. 202 Ariz. at 556-57, PP 1-4, 48 P.3d at 506-07.
A board consultant reviewed the complaint, the doctor's written narrative response, and the patient chart, and concluded in a report to the board that the doctor "should have been more aggressive in pursuing a diagnosis." Id. at 557, P 4, 48 P.3d at 507.
The board notified the doctor that it was scheduling an "informal interview" to discuss the complaint and his care and treatment of the patient. Id. at P5.
The board further advised the doctor of his right to appear with counsel and the board's potential options following the interview, ranging from further investigation and/or dismissal to the taking of disciplinary action, even to the point of referring the matter for formal hearing and possible license revocation. Id.
The board did not advise Dr. Webb that he had the option of declining the interview in favor of a full formal hearing. Id.
Dr. Webb appeared without counsel at the interview, following which he was censured for "unprofessional conduct." Id. at P6.
During the interview, Dr. Webb attempted but was denied the right to cross-examine the board's consultant concerning his adverse opinions. Id. at 559-60, PP 13-17, 48 P.3d at 509-10.
Following an unsuccessful request for rehearing, and judicial review by the superior court, which affirmed the administrative decision, Dr. Webb filed a notice of appeal. Id. at 556, P 1, 48 P.3d at 506.
On appeal, this court reversed, holding that Dr. Webb's agreement to participate in the "informal interview" did not constitute a waiver of his due process rights. Id. at 558, P 10, 48 P.3d at 508.
Those rights required the board to identify the applicable standard of care, articulate the alleged deviation by Dr. Webb, and indicate how such deviation harmed or might be harmful to the patient. Id. at 560-61, PP 19-23, 48 P.3d at 510-11.
Further, in this setting, the board was obligated to advise the doctor in advance of the interview that he had the right to instead request a formal hearing, in which the right to confront and cross-examine the board's expert consultant could be exercised. See id. at 557-59, PP 5, 10-11, 14, 48 P.3d at 507-09.
The Court specifically noted that, pursuant to Croft, the licensing board could establish the standard of care based on its members' experience and expertise but could not base its findings "upon either undisclosed evidence or personal knowledge of the facts." Id. at 560, P 20, 48 P.3d at 510.
This court further held:
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. Not only must the Board identify the standard and articulate the alleged deviation in order to provide the physician under investigation a fair opportunity to respond to a charge of negligence; it must do so in order to provide a reviewing court an opportunity for meaningful review. "Without clearly articulated standards as a backdrop against which the court can review discipline, the judicial function is reduced to serving as a rubber-stamp for the Board's action." Woodfield v. Bd. of Prof'l Discipline of State Bd. of Med., 127 Idaho 738, 905 P.2d 1047, 1057 (App. 1995). Id.