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Sawyer v. Board of Licensure in Medicine
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 125
Docket:	Cum-00-2
Submitted
on Briefs:	May 25, 2000
Decided:	June 30, 2000

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



JAMES D. SAWYER v. BOARD OF LICENSURE IN MEDICINE


DANA, J.

	[¶1]  James D. Sawyer appeals from the judgment of the Superior
Court (Cumberland County, Mills, J.) affirming the Board of Licensure in
Medicine's denial of his application for reinstatement of his license to
practice medicine.  Sawyer argues that he was denied procedural due
process because he was not given adequate notice prior to his hearing of the
unprofessional conduct that ultimately formed the basis for the denial of his
reinstatement and because the Board did not introduce evidence of the
professional standard of care to which he was being held.  We find no merit
to his constitutional challenge and, because we find Sawyer's appeal to be
frivolous, impose sanctions of $500.
I.
	[¶2]  Sawyer was originally licensed to practice medicine in Maine in
1982.  He allowed his license to lapse in 1995 while he was out of the state. 
He filed an application for reinstatement with the Board in 1997.  At the
time he filed his application, the Board had before it two unresolved
complaints against Sawyer filed by patients.
	[¶3]  On receiving Sawyer's application for reinstatement, the Board
solicited information from Sawyer's prior employers in Maine.  The
comments received in response consistently reflected concerns about
Sawyer's interactions with co-workers and patients, as well as concerns
about Sawyer's ability to prevent his personal problems from interfering
with his professional responsibilities.
	[¶4]  The Board issued a preliminary denial of the application.  In its
letter notifying Sawyer of the preliminary denial, the Board cited Sawyer's
pattern of "questionable professional judgement and inappropriate
behavior," his resignation from one position in the face of hospital
discipline, and the two patients' complaints as the basis for its denial.
	[¶5]  Sawyer appealed the preliminary denial and the Board sent him
notice of an adjudicatory hearing scheduled for January 13, 1998.  The
letter informed Sawyer of his rights, including the right to be represented
by an attorney and his right to call witnesses.  It also informed him that he
would bear the burden of proving that he was qualified for a medical license
at the hearing.
	[¶6]  The letter was sent on December 9, 1997 and the return receipt
indicated that it was picked up on December 17, 1997.  Sawyer contacted
the Board by phone at 5:10 p.m. on the day before the hearing to notify it
that he would not be able to attend, indicating that he had been unaware of
the scheduled proceeding until that very day.  He also faxed the Board a
letter further explaining the difficulty of his situation and his reasons for
being unable to attend.  Sawyer did manage to appear at the hearing
explaining that, although he had received the notice of the hearing in
December, he had not opened it until the day before the hearing.
	[¶7]  In the course of the hearing, Sawyer gave testimony to the Board
on the history of his practice of medicine.  He explained that the unfavorable
comments received by the Board were the result of problems stemming
from long hours and stress.  He also chronicled his history of marital
difficulties, his divorce, and ensuing personal and financial difficulties.  He
attributed the incidents described in his performance evaluations spanning
several years to these circumstances and stated that an administrator at one
of the hospitals had a vendetta against him and had singled him out for
discipline.  Sawyer explained that he was currently bogged down with
litigation against the Department of Human Services, bankruptcy
proceedings and his lack of a stable address.  He denied, however, that his
stress level was interfering in any way with his business before the Board. 
He told the Board that he was much more in control of his personal life than
at the time he received the unfavorable comments from his previous
employers.  At the time, Sawyer was licensed and practicing medicine in
New Hampshire.
	[¶8]  The Board elected to continue the hearing for several months to
allow Sawyer time to sort out his personal issues and submit additional
evidence regarding his qualifications for a medical license.  The Board
issued an interlocutory order reflecting that Sawyer had agreed to allow the
Board to contact his current employer, as well as to contact his lawyers
regarding pending legal matters.  The order also provided that Sawyer
would provide a detailed performance evaluation from the hospital at which
he was working in New Hampshire and status reports of his legal
proceedings.
	[¶9]  Thereafter, the attorney for the Board twice sought releases from
Sawyer for these purposes, but received no response to her letters.  The
return receipt for the second letter indicated that the letter went
unclaimed.  Nor did Sawyer ever provide the performance evaluation or the
status reports described in the Board's interlocutory order.  The second
hearing date was eventually scheduled for September 8, 1998 despite
Sawyer's failure to comply with the Board's requests or reply to the Board's
correspondence.  Notice of the hearing date was sent to Sawyer on August 3. 
The notice again informed Sawyer that he had the right to be represented
by an attorney and bore the burden of proof at the proceeding.  Sawyer failed
to appear for the September 8 hearing.
	[¶10]  The Board made the preliminary denial final based on a
determination that Sawyer had displayed a history of questionable
professional judgment, including his behavior before the Board, that
amounted to unprofessional conduct.  Sawyer thereafter sought review of the
final agency action pursuant to M.R. Civ. P. 80C and a new hearing based on
his claim that he had been denied his right to due process.  The Superior
Court denied his request for a new hearing and affirmed the decision of the
Board.  Sawyer then appealed to this Court.
II.
	[¶11]  We review administrative decisions directly for abuse of
discretion, errors of law, or findings unsupported by the evidence.  See
Balian v. Board of Licensure in Med., 1999 ME 8, ¶ 9, 722 A.2d 364, 366. 
Sawyer argues that the process he was accorded in this case regarding his
application for reinstatement of his license to practice medicine was
constitutionally infirm.  He challenges both the effectiveness of the notice
concerning the basis for the preliminary denial and the absence of evidence
on the relevant standard of professional conduct governing his license
denial.  He argues that he was denied the opportunity to effectively address
these issues as a result.
	[¶12]  Without deciding the issue, we will assume for purposes of this
case that Sawyer had a sufficient property interest at stake in the
reinstatement process to trigger constitutional due process protection.  See
32 M.R.S.A. § 3280-A(4) (1999); Board of Regents of State Colleges v. Roth,
408 U.S. 564, 577 (1972) (holding that to have a property interest in a
benefit, a person must have a legitimate claim of entitlement to it rooted in
a source such as state law).{1}  Nevertheless, we find a conspicuous lack of
constitutional inadequacies in the proceedings in this case.
	[¶13]  The Board's notice of its preliminary denial stated its specific
concerns about Sawyer's professional judgment, citing both the two patient
complaints and the incident that resulted in his resignation from one of his
previous positions.  Furthermore, the statute governing reinstatement states
the conditions pursuant to which the Board may reject an application for
reinstatement of a license to practice medicine, including circumstances in
which the Board finds the doctor has engaged in conduct that would subject
the doctor to professional discipline.  See 32 M.R.S.A. § 3280-A(4)(C)
(1999).  Grounds for discipline include incompetence, fraud, deceit, or
unprofessional conduct violating a standard of professional behavior.  See 32
M.R.S.A. § 3282-A(2) (1999).
	[¶14]  Additionally, this proceeding concerned an application for
reinstatement and did not involve revocation of Sawyer's license.  As a
result, Sawyer bore the burden of demonstrating that he met the
requirements for reinstatement and was qualified for a license.  Compare
Balian, 1999 ME 8, ¶ 12, 722 A.2d at 367 (noting that doctor was in
position of having to rebut the case against him in proceeding regarding
potential revocation of license).
	[¶15]  Although Sawyer testified at the initial hearing date and
attempted to explicate the series of negative performance evaluations that
the Board had cited in its preliminary denial, thereafter he failed to provide
information specifically requested by the Board, failed to respond to
correspondence from the Board, failed to cooperate with the Board's efforts
to obtain evidence supporting his application for reinstatement and failed to
appear for the second hearing in a proceeding in which he bore the burden
of proof.  Sawyer was not denied an opportunity to present his case in
support of reinstatement by virtue of the Board's administration of the
proceedings.  Rather, he failed to take the several opportunities afforded
him by the Board to demonstrate his qualifications for a license to practice
medicine.
	[¶16]  Sawyer not only failed to contest the constitutionality of the
Board's proceedings when he appeared at the first hearing, cf. New England
Whitewater Ctr., Inc. v. Department of Inland Fisheries and Wildlife, 550
A.2d 56, 58 (Me. 1988) (noting that the failure of a party to raise a due
process challenge at the administrative level denies the administrative body
the opportunity to take remedial measures that would obviate the need for
an appeal), he did not even appear for the second hearing.  To come before
this Court now and argue that the Board denied him his constitutional right
to due process constitutes a frivolous appeal.{2}  We therefore order sanctions
payable to the Board in the amount of $500 pursuant to M.R. Civ. P. 76(f).
	The entry is:
Judgment affirmed with sanctions against
petitioner and his counsel in the amount of
$500.

Attorney for plaintiff: Craig A. Bramley, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorney for defendant: Andrew Ketterer, Attorney General Ruth E. McNiff, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . Because orders such as the one at issue in this case are also reported in a data bank available to other states that are considering licensing a doctor, Sawyer also arguably has a liberty interest at stake in the reinstatement proceedings. The stigma associated with a denial of reinstatement could impinge on his ability to secure licensure in other states. See Roth, 408 U.S. at 573-74. {2} . We note that the Board's final denial of his application for reinstatement does not forever preclude Sawyer from obtaining a license to practice medicine in Maine. Sawyer is free to reapply for reinstatement or apply for a new license. See 32 M.R.S.A. § 3280-A(4)(A) (1999).