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Seider v. Board of Examiners
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 118
Docket:	Cum-99-625
Argued:	March 6, 2000
Decided:	June 23, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




JUDITH A. SEIDER v. BOARD OF EXAMINERS OF PSYCHOLOGISTS


DANA, J.

	[¶1]  Judith Seider appeals from the judgment entered in the
Administrative Court (Beaudoin, C.J.) affirming the decision and order of the
Board of Examiners of Psychologists finding that she had violated four
provisions of the Ethical Principles and Code of Conduct of Psychologists of
the American Psychological Association{1} (EPCC) and that those violations
constituted negligence pursuant to 32 M.R.S.A. § 3837(8).{2}  On appeal,
Seider argues (1) the Board was required to introduce expert testimony to
establish the governing standards of care, and that its failure to do so
violated her due process rights; (2) there was an "undue delay" between the
investigation of the complaint against her and the hearing on the merits;
and (3) there was insufficient evidence in the record to support the Board's
findings.  We affirm.
I. CASE HISTORY
	[¶2]  As a result of a court order amending the divorce judgment that
had ended her marriage, Seider's patient was granted sole custody of her
child.  Her former husband was granted visitation.  The custody order also
required the parties to obtain individual and joint counseling for issues
surrounding their divorce and their ability to communicate and co-parent
their child.  To satisfy her individual counseling obligation, the patient, on
her attorney's recommendation, contacted Seider and entered into a
therapeutic relationship with her.
	[¶3]  The patient's first session with Seider included a discussion of
the history of abuse the patient had suffered at the hands of her husband and
her need for help with her lack of assertiveness and low self-esteem.  Based
on the information conveyed to her in that session, Seider expressed the
view that any visitation by the father with the couple's son should be
supervised.  This view was subsequently discussed with Lillian Kennedy, the
patient's attorney in the divorce proceeding.
	[¶4]  Pursuant to Seider's recommendation, and as a result of
subsequent therapeutic sessions Seider had with both the patient and her
son, the patient filed a motion on April 29, 1993, to limit the father's
visitation by requiring that visits be supervised.  It was understood at that
time that Seider would provide expert testimony on behalf of the patient.
	[¶5]  In the months leading up to the hearing on the motion, however,
a series of events took place that culminated in Seider making herself
unavailable to testify at the hearing.  In addition, Seider failed to provide the
records of the patient or her son to either the patient or Kennedy.{3}
	[¶6]  During the hearing before the Board, the following evidence was
presented.  Kennedy explained that she had participated in a lengthy
discussion with Seider prior to the hearing concerning her anticipated
testimony.  In the course of that discussion Kennedy promised to contact
Seider following a pretrial conference, at which she expected to learn of the
trial date set for the hearing.  She also requested that Seider send the client
treatment records so that she could prepare for the hearing.  Seider never
sent the records.
	[¶7]  Following the conference, Kennedy called Seider and left a
message on her answering machine advising her that the hearing had been
scheduled for July 9.  Seider did not respond to this message.
	[¶8]  Kennedy next sent a letter to Seider, dated June 17, asking
when she would be available to meet to discuss her testimony for the
hearing.  Again, Seider did not respond.  Knowing the hearing was
scheduled in two weeks, Kennedy decided to subpoena Seider and one was
issued on June 25.
	[¶9]  On the morning of July 2, having still received no response from
Seider, Kennedy asked her secretary to telephone Seider and request that
she respond because it was an emergency.  At the end of that day, having
still received no response, Kennedy went to Seider's home, to which her
office was attached, and stuck her business card in the door with a message
asking Seider to call her.
	[¶10]  Either that night or the next day, Seider finally responded by
leaving a message on Kennedy's answering machine that she was going to
the Dana Farber Institute because she needed to take care of herself and
therefore would not be available on the day of the hearing.{4}  In response,
Kennedy telephoned Seider on July 4 and left a message asking Seider to let
her know if it would be possible to take her deposition.  Seider did not
respond.
	[¶11]  On the day following the holiday weekend, Kennedy arranged a
conference call with the court and opposing counsel during which she
sought a continuance of the hearing.  After Kennedy explained the difficult
situation involving Seider, the court denied the continuance.  In addition,
the court ordered Kennedy to obtain the client records from Seider for
opposing counsel's review.
	[¶12]  Attempting again to obtain the records from Seider, Kennedy
drafted a letter on July 6 requesting that she release them.  Although the
patient had already provided Seider a signed release, Kennedy enclosed
another.  As the hearing date was near, and in an attempt to expedite the
release of the records, the patient volunteered to deliver the letter and
second release to Seider's office that day.  Based on Seider's previous
message, neither Kennedy nor the patient expected her to be in her office
at the time of delivery.
	[¶13]  When the patient arrived at Seider's office, she discovered that
Seider was in her office seeing patients.  This surprised the patient because
Seider had stated that she was going to be at Dana Farber receiving
treatment.  When the door to her office opened, Seider saw the patient
sitting in her waiting room and motioned for her to enter.  Seider
demanded to know the reason the patient had come to her office and
informed her that she had breast cancer and had to take care of herself. 
When she learned of the content of the letter the patient was there to
deliver, Seider initially attempted to refuse to accept it.  When the patient
said she would not take the letter back, Seider took it but stated she was
disappointed in both the patient and Kennedy.
	[¶14]  Seider then called Kennedy's office and expressed her anger. 
As Kennedy was not present when she called, Seider left a message stating,
inter alia, that she was very upset by the patient's appearing at her office and
that she could not believe that Kennedy would permit the patient to do so. 
Seider did not contact either Kennedy or the patient again.
	[¶15]  In addition to complaining of Seider's failure to appear at the
hearing, the patient testified concerning her dissatisfaction with the course
of treatment that Seider had provided to her and her son.  The patient
explained that she had never engaged in individual therapy before entering
into the therapeutic relationship with Seider and did not know what to
expect from it.  Seider, however, failed to remedy this concern.  She never
outlined any therapeutic goals with the patient, nor did she ever review a
treatment plan with the patient during the course of her treatment.
	[¶16]  In the course of treating the patient's son, Seider never
discussed what treating procedures she would employ or what therapeutic
goals she expected to achieve.  She never discussed the boy's progress in
therapy, nor did she ever explain to the patient the outcome of any
evaluation she performed of him.  On one occasion, in the course of trying to
convince the patient to seek a limitation of the father's visitation rights,
Seider told her that a likely consequence of the unorthodox lifestyle to
which the boy's father was exposing him{5} was that he would "blow his brains
out" at a later age.  After providing this grim warning, Seider unfortunately
failed to explain the basis of her belief.
	[¶17]  The Board concluded that Seider had violated five EPCC
provisions and that, as a result, she had been negligent in her duties with
respect to the patient.  On appeal to the Administrative Court, it was
determined that there was insufficient evidence supporting the Board's
conclusion that Seider had violated EPCC provision 1.25(a).{6}  The
Administrative Court remanded the case to the Board for a determination as
to whether the four violations remaining constituted negligence.  On
remand, the Board determined that Seider's conduct, notwithstanding the
vacated violation, still constituted negligence.  Seider filed a motion for
reconsideration, which the Administrative Court denied, thereby affirming
the Board's finding of negligence.  Seider appeals from this order.
II. PROCEDURAL DUE PROCESS
	[¶18]  Seider argues that the Board violated her procedural due
process rights because it failed to establish, by record evidence, the
standard of care she was required to provide the patient.  The Board argues
that it satisfied its procedural due process responsibilities to establish the
standard of care Seider was required to provide by disclosing and entering
in the record the EPCCs that Seider was charged with violating, and by
informing her that findings of violations could result in a finding of
negligence.  We review the Board's decision directly for an abuse of
discretion, errors of law, or findings unsupported by the evidence.  Balian v.
Board of Licensure in Med., 1999 ME 8, ¶ 9, 722 A.2d 364, 366.
	[¶19]  Due process is a flexible concept calling for "such procedural
protections as the particular situation demands."  Mathews v. Eldridge, 424
U.S. 319, 334 (1976); see also Fichter v. Board of Envtl. Protection, 604
A.2d 433, 437 (Me. 1992).  It requires fundamental fairness, which involves
consideration of the following three factors that have been set forth by the
United States Supreme Court to assess whether the state had violated an
individual's right to due process:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved and
administrative burdens that the additional or substitute
procedural requirement would entail.
Balian, 1999 ME 8, ¶ 10, 722 A.2d at 367 (quoting Mathews, 424 U.S. at
335 (1976)).
	[¶20]  With respect to the first Mathews factor, Seider's property
interest in her professional license is at stake.{7}  See Balian, 1999 ME 8,
¶ 11, 722 A.2d at 367; (due process protections implicated in proceeding
to take disciplinary action against doctor's license); Board of Overseers of
the Bar v. Lefebvre, 1998 ME 24, ¶ 15, 707 A.2d 69, 73 (due process
protections implicated in hearing to suspend attorney's license).
	[¶21]  With respect to the second Mathews factor, we have stated that
"disclosing the standard permits the licensee to assert a defense, enables
both expert and lay members of the Board to evaluate the licensee's
conduct, and enhances our ability to provide effective judicial review." 
Balian, 1999 ME 8, ¶ 12, 722 A.2d at 367.  In the present case, the Board
argues that it set forth the applicable standard for each of the five violations
Seider was alleged to have committed by entering the five EPCC provisions
in the record.
	[¶22]  While establishing the standard of care for licensed
professionals regarding the treatment of a patient ordinarily requires expert
testimony, see Searles v. Trustees of St. Joseph's College, 1997 ME 128,
¶ 10, 695 A.2d 1206, 1210 (citing Forbes v. Osteopathic Hosp. of Maine,
Inc., 552 A.2d 16, 17 (Me. 1988)) ("ordinarily, a plaintiff can discharge his
burden of proof for a claim of negligent medical care only by expert medical
testimony establishing the appropriate standard of medical care . . ."), we
have long recognized that expert testimony may not be necessary "where the
negligence and harmful results are sufficiently obvious as to lie within
common knowledge . . . ."  Cyr v. Giesen, 150 Me. 248, 252, 108 A.2d 316,
318 (1954).  In the present case, the Board found the following:  (1) Seider
abandoned her patient when she failed to make herself available for the
hearing, failed to make herself available for a deposition prior to the hearing,
and failed to provide the treatment records of the patient and her son for
use at the hearing; (2) Seider failed to create and maintain records
regarding her treatment of the patient and her son; (3) Seider failed at all
times to clear up misunderstandings the patient had with respect to the
treatment of herself and her son; and (4) Seider failed to properly discuss at
any time during the therapeutic relationship the nature and anticipated
course of therapy with the patient concerning her and her son.
	[¶23]  Expert testimony was not required to establish the appropriate
standards by which to measure Seider's conduct.  To the contrary, it is well
within the realm of common knowledge that a complete failure to act in
accordance with provisions of the code of conduct established for one's
profession constitutes a violation, and that violations of numerous provisions
of that code may constitute negligence.  Moreover, the members of the
Board possess knowledge of and are familiar with the provisions of the
EPCC, as they are charged with the duty of ensuring that the members of the
profession conduct themselves in accordance with those provisions.  We
therefore conclude that in the circumstances of the present case, the Board
satisfied its obligation to introduce evidence of the appropriate standard
through the admission in evidence of the applicable EPCC provisions.  See
Balian, ¶ 15, 722 A.2d at 368.
	[¶24]  With respect to the third Mathews factor, we are required to
consider the "Government's interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail."  Mathews, 424 U.S. at 335 (1976). 
In the present case, Seider was called before the Board that governs the
conduct of individuals within her profession.  The members of the Board,
which is comprised of both lay and professional members, are charged with
a knowledge and understanding of the rules they are entrusted to enforce. 
Requiring expert testimony in a case involving the types of misconduct in
which Seider engaged would needlessly increase the time and expense
necessary for the Board to present its case.  Thus, after balancing the three
Mathews factors in the context of the present case, we conclude that the
Board was not required to introduce expert testimony to establish the
appropriate standard of care.
III. UNDUE DELAY
	[¶25]  The Maine Administrative Procedure Act provides that "[t]he
opportunity for hearing in an adjudicatory proceeding shall be afforded
without undue delay."  5 M.R.S.A. § 9056.  Seider claims that the two and
one-half year gap between the conclusion of the Board's investigation of the
complaint and the contested case hearing was an "undue delay" that violated
her due process rights and section 9056.
	[¶26]  In deciding due process challenges based on claims of "undue
delay" between the filing of a complaint and a hearing, before the Board is
required to proffer an explanation, the initial burden is on the defendant to
demonstrate "actual and unjustifiable prejudice."  Cf. State v. Cyr, 588 A.2d
753, 756 (Me. 1991) (citing State v. Hutchins, 433 A.2d 419, 423 (Me.
1981)).  Only then does the court inquire of the Board as to the reasons for
the delay and to determine whether the prejudiced caused by the delay
remains unjustified.  Cf. id.
	[¶27]  In the present case, Seider fails to make the initial showing of
"actual and unjustifiable prejudice."  Seider's license, although voluntarily
permitted to lapse, was not revoked or suspended at any time prior to the
hearing, nor does Seider contend that her ability to practice was hindered
by the delay.  Seider asserts only that a two and one-half year delay equals
"undue delay."  There is, however, no evidence offered to demonstrate that
the delay was the result of dilatory conduct by the Board.  In fact, the record
demonstrates that during a portion of this period the Board was considering
other disciplinary matters with respect to earlier claims of misconduct by
Seider.
	[¶28]  In addition Seider does not demonstrate that she was
prejudiced in any way by the delay.  As stated above, her license had not
been suspended or revoked prior to the hearing.  Seider does not argue that
any evidence was lost or that any material witnesses were no longer
available.  In fact, the only relevant evidence claimed to have been lost was
the patient records that Seider claimed to have lost during her move to
another state.  Accordingly, the Board's delay in holding a hearing with
respect to the patient's complaint did not violate Seider's due process
rights in the present case.  See, e.g., Ansell v. Board of Examiners of
Mortuary Science, 564 N.W.2d 519, 525-26 (Mich. Ct. App. 1997) (four year
lapse between issuance of complaint and evidentiary hearing was not an
"undue delay").
IV. SUFFICIENCY OF THE EVIDENCE
	[¶29]  Seider argues that the Board failed to produce sufficient
evidence that she violated the EPCC provisions and that, as a result, she
acted negligently.  We do not substitute our judgment for that of an
administrative board and we affirm findings of fact if they are supported by
substantial evidence in the record.  See International Paper Co. v. Board of
Envtl. Protection, 1999 ME 135, ¶ 29, 737 A.2d 1047, 1054.  "We examine
the entire record to determine whether, on the basis of all the testimony
and exhibits before it, the [Board] could fairly and reasonably find the facts as
it did."  Id.  Our review of the record reveals that there is substantial
evidence supporting the Board's findings that Seider violated the relevant
EPCC provisions, and that her violations constituted negligence.
	The entry is:
			Judgment affirmed.
               
Attorney for plaintiff: Christopher C. Taintor, Esq., (orally) Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600 Attorneys for defendant: Andrew Ketterer, Attorney General Judith M. Peters, Asst. Attorney General (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The EPCCs Seider was found to have violated are as follows: 1.23(b). When psychologists have reason to believe that records of their professional services will be used in legal proceedings involving recipients of or participants in their work, they have a responsibility to create and maintain documentation in the kind of detail and quality that would be consistent with reasonable scrutiny in an adjudicative forum. 4.01(a). Psychologists discuss with clients or patients as early as is feasible in the therapeutic relationship appropriate issues, such as the nature and anticipated course of therapy, fees, and confidentiality. 401(d). Psychologists make reasonable efforts to answer patients' questions and to avoid apparent misunderstandings about therapy. Whenever possible, psychologists provide oral and/or written information, using language that is reasonably understandable to the patient or client. 409(a). Psychologists do not abandon patients or clients. {2} . Section 3837 states in pertinent part as follows: The board may suspend or revoke the license of a psychological examiner or psychologist pursuant to Title 5, section 10004. The board may refuse to issue or renew or the Administrative Court may suspend, revoke or refuse to renew the license of a psychological examiner or psychologist on any of the following grounds: . . . . 8. Negligence. Negligence in the performance of his duties. 32 M.R.S.A. § 3837(8) (1983). {3} . In her brief, Seider notes several times the patient's success with respect to her motion. Although it appears that, in doing so, Seider is attempting to demonstrate that the patient was not harmed by her behavior, the patient's success on her motion is irrelevant. The patient's success would not excuse Seider's violation of the EPCCs that she is bound to uphold. {4} . When the issues arose regarding Seider's health, Kennedy recalled the subpoena. {5} . The father did not have a permanent residence and was staying at different times in a homeless shelter, someone's car and an abandoned mill. The father took the boy to these places during his visits. {6} . EPCC provision 1.25(a) provides as follows: As early as is feasible in a professional or scientific relationship, the psychologist and the patient, client, or other appropriate recipient of psychological services reach an agreement specifying the compensation and the billing arrangements. {7} . The Board's notice to Seider informed her that the purpose of the hearing was to determine whether grounds existed for the Board to take disciplinary action against her license as a psychologist.