Medical Licence Suspension for 5 Years for Misconduct Against a Female Patient
In L v. Commonwealth of Pennsylvania, State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), our Pennsylvania Supreme Court addressed commingling.
In L, Hagan, the prosecuting attorney for the State Board of Medicine (Board), had investigated a complaint against Dr. L for alleged misconduct against a female patient.
In an emergency meeting conducted by conference call, the Board voted to cite Dr. L for a formal hearing after it determined there was sufficient evidence to initiate disciplinary action.
Hagan issued an Administrative Complaint and Order to Show Cause.
The formal charges and complaint against Dr. L were signed by the chairperson of the Board.
A neutral hearing examiner was appointed to preside over the disciplinary proceedings.
After hearing, the hearing examiner ordered a suspension of Dr. L's medical license for five years and ordered Dr. L to submit himself to medical treatment.
Both Dr. L and Hagan sought review by the Board.
The Board affirmed the factual findings but ordered the permanent revocation of Dr. L's license.
Dr. L petitioned for review with this Court and alleged an improper commingling of prosecutorial and adjudicatory functions.
This Court vacated the decision and remanded to the Board based strictly on the issue of laches.
With respect to the commingling, this Court determined that there was no improper commingling.
L petitioned for allowance of appeal which our Pennsylvania Supreme Court granted on the due process issue regarding commingling. L, 529 Pa. at 537-540, 605 A.2d at 1205-1207.
Our Pennsylvania Supreme Court reversed and remanded:
In determining what process is due Pennsylvania citizens, this Court has established a clear path when it comes to commingling prosecutorial and adjudicatory functions.
There is a strong notion under Pennsylvania law that even an appearance of bias and partiality must be viewed with deep skepticism, in a system which guarantees due process to each citizen. . . .
Nor is the threat to due process inconsequential where eight members of an administrative board (here the Board of Medicine), wear the hat of the prosecutor and make the determination that probable cause exists to bring formal charges; and then the same board -- with a number of members identical-later wears the robe of the judge to make a presumably impartial adjudication which will determine the fate of a physician's license to practice medicine in this Commonwealth.
Whether it is one person or eight who merge the prosecutorial and adjudicatory roles, the danger is equally serious.
What our Constitution requires, however, is that if more than one function is reposed in a single administrative entity, walls of division be constructed which eliminate the appearance of bias. . . . a 'mere tangential involvement' of an adjudicator in the decision to initiate proceeding is not enough to raise the red flag of procedural due process. . . . Our constitutional notion of due process does not require a tabula rosa. . . .
However, where the very entity or individuals involved in the decision to prosecute are 'significantly involved' in the adjudicatory phase of the proceedings, a violation of due process occurs. . . . such a conclusion is only made more compelling where, as here, the administrative board has virtual carte blanche in reviewing the hearing Examiner's findings and replacing it with its own adjudication, with very limited appellate review in the Commonwealth Court. . . . L, 529 Pa. at 542-544, and 547, 605 A.2d at 1207-1208, 1210.