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Balian v. Board of Licensure in Medicine
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 8
Docket:	Cum-97-629	
Argued:	September 8, 1998
Decided:	January 11, 1999

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




EPIPHANES K. BALIAN v. BOARD OF LICENSURE IN MEDICINE


DANA, J.

	[¶1]  Epiphanes K. Balian appeals from the judgment entered in the
Administrative Court (Beaudoin, C.J.) affirming the decision and order of the
Board of Licensure in Medicine imposing a $1,500 civil penalty against him
for "unprofessional conduct" in violation of 32 M.R.S.A. § 3282-A(2)(F)
(Supp. 1998){1} for his failure to release medical records to his patient's
doctors.  On appeal, Balian argues that the Board's failure to establish by
record evidence the ethical standards governing the release of medical
records violated Balian's due process rights.  We agree and vacate the court's
decision.
	[¶2]  Dr. Dorothy Howard, a clinical social worker, referred a patient
to Balian, who provided two hours of psychiatric services.  After the visit, the
patient wrote to Balian requesting that he send copies of her records to
Howard and Dr. Janet Fowle.  The patient signed two releases and included
them in the letter.{2}  Balian did not respond to this request.
	[¶3]  In a second letter a month later, the patient informed Balian that
neither Fowle nor Howard had received the requested medical records. 
Balian again failed to comply and never explained to the patient why he did
not respond to her requests.
	[¶4]  The patient complained to the Board, and the Board charged
Balian with unprofessional conduct in violation of 32 M.R.S.A. § 3282-
A(2)(F).  The Board's notice of adjudicative hearing set forth the following
issue:
Whether you have engaged in unprofessional conduct by violating
any standard of professional behavior which has been established
for the practice of medicine by your failure, as required by Title
22 M.R.S.A. Section 1711-A,{3} to release the medical records or a
narrative report of [the patient] to the parties she requested. 
Title 32 M.R.S.A. Section 3282-A(2)(F). 
	[¶5]  At the hearing, the Board's inquiry focused exclusively on Balian's
alleged violation of 22 M.R.S.A. § 1711-B.  The Board did not discuss or
introduce in evidence any standard of professional conduct that Balian was
alleged to have violated.
	[¶6]  Balian testified that he did not release the patient's medical
records because he requires that (1) the patient's signature be witnessed
and attested to by someone from the requesting physician's office; (2) the
witness sign the release form; and (3) the physician make a specific request
to Balian.  Because of noncompliance with these requirements Balian
testified that he never sent the records to Fowle or Howard.  The Board
found that Balian never told the patient about his requirements for the
release of medical records.{4}  Pursuant to the Board's written request, Balian
provided the patient's records to the Board, but the records are not in
evidence. 
	[¶7]  The Board first concluded that 22 M.R.S.A. § 1711-B was
inapplicable and then found that Balian's refusal to release the records to
Fowle and Howard constituted "unprofessional conduct" pursuant to 32
M.R.S.A. § 3282-A(2)(F).  In reaching its decision, the Board stated that, "at
the very least, the American Medical Association Code of Ethics, basic
principles of medical ethics and the common law required [Balian] to either
release medical records as directed by [the patient] or inform [the patient]
of the standard [he] was requiring before he would release her medical
records."  The Board issued a reprimand to Balian and imposed a civil
penalty of $1,500. 
PROCEDURAL DUE PROCESS
	[¶8]   Balian argues that the Board violated his procedural due process
rights by failing to reveal and introduce in evidence the standards of
professional ethics he was alleged to have violated.  We agree. 
	[¶9]  This Court reviews the Board's decision directly for an abuse of
discretion, errors of law, or findings unsupported by the evidence.  Winsor v.
Maine Real Estate Comm'n, 1997 ME 122, ¶ 4, 695 A.2d 1198, 1200. 
	[¶10]  The Due Process Clauses of the Maine and Federal
Constitutions{5} guarantee due process before the state deprives a citizen of a
property right.  See Board of Overseers of the Bar v. Lefebvre, 1998 ME 24,
¶ 15, 707 A.2d 69, 73.  "[W]hat process is due will vary from case to case . . .
to assure the basic fairness of each particular action according to its
circumstances."  Fichter v. Board of Envtl. Protection, 604 A.2d 433, 437
(Me. 1992) (quoting Secure Env'ts, Inc. v. Town of Norridgewock, 544 A.2d
319, 324-25 (Me. 1988)).  The United States Supreme Court has set forth
three factors to assess whether the state 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.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Fichter, 604 A.2d
at 437 (Me. 1992) (applying Eldridge factors to due process challenge to
denial of permit by Board of Environmental Protection).
	[¶11]  With respect to the first Eldridge factor, Balian's property
interest in his professional license and his financial resources are at stake.{6} 
See Lefebvre, 1998 ME 24, ¶ 15, 707 A.2d 69, 73 (due process protections
implicated in hearing to suspend attorney's license); Board of Registration
in Med. v. Fiorica, 488 A.2d 1371, 1375 (Me. 1985) (due process
protections implicated in proceeding to revoke doctor's license).
	[¶12]  With respect to the second Eldridge factor, 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.  See In re Appeal of Schramm,
414 N.W.2d 31, 35-36 (S.D. 1987) (discussing rationale for due process
protections in professional discipline proceedings).  A licensee should have
the opportunity to rebut the evidence establishing a standard and the right
to construct a defense based on the standard.  See Lefebvre, 1998 ME 24,
¶ 16, 707 A.2d at 73 (reasoning that if licensee had fair notice regarding
charges against him he could have adduced evidence and constructed
arguments to refute theory of misconduct); In re Appeal of Schramm, 414
N.W.2d at 35 (discussing due process protections available when evidence
introduced to establish a professional's negligence).  Here, the Board denied
Balian these opportunities by failing to even disclose the appropriate ethical
standards.
	[¶13]  Moreover, in a Board comprised of both lay persons and
persons of the regulated profession, the absence of a clear standard unduly
shifts power and influence to the non-lay members.  See In re Appeal of
Schramm, 414 N.W.2d at 35.  Here, the lay member on the Board, without
knowing the applicable ethical standard, most likely had to defer to the
professional members.  This imbalance of power would not exist -- and the
risk of an erroneous deprivation of a licensee's interests would therefore be
reduced -- if all Board members understood the applicable standard and
based their decision thereon.{7}   
	[¶14]  Finally, effective judicial review requires that a Board rely on
standards set forth in the record.  See id. at 36-37 (holding dental board's
charge of "unacceptable patient care" arising from dentist's failure to
perform ordinary skills had to base findings on expert testimony).  This
Court's ability to review this case is limited without record evidence
regarding the standards applied by the Board.  For example, the only
evidence presented to this Court with respect to the ethics governing the
release of medical records is confined to the Administrative Court's decision
that discusses -- for the first time in these proceedings -- excerpts from the
American Medical Association's (AMA) Code of Ethics and two medical
ethics treatises.{8}  The record of the hearing does not demonstrate what
standard, if any, was applied by the Board.
	[¶15]  With respect to the final Eldridge factor, requiring that the
Board introduce in evidence the applicable standard does not entail an
unreasonable administrative burden.  424 U.S. at 335.  The Board may
introduce evidence of the applicable standard through a variety of methods,
including, for example, the simple admission in evidence of the applicable
AMA provisions.  See Arthurs v. Board of Registration in Med., 418 N.E.2d
1236, 1244 (Mass. 1981) (suggesting that an agency may establish facts by
expert witnesses or official notice).  For these reasons, procedural due
process requires that the Board introduce in evidence the applicable
standard of conduct against which the Board will assess Balian's conduct.  
	[¶16]  We agree, however, that where an act is blatantly illegal or
improper, or where the licensee admits to a violation, the Board need not
introduce record evidence to establish the necessary standard.  Cf. Jim
Mitchell & Jed Davis, P.A. v. Jackson, 627 A.2d 1014, 1017 (Me. 1993) 
(expert testimony to establish standard of care for attorney unnecessary
where breach of duty is "so obvious that it may be determined by the Court
as a matter of law, or is within the ordinary knowledge and experience of
laymen."); Cyr v. Giesen, 150 Me. 248, 252, 108 A.2d 316, 318 (1954)
(expert testimony to establish standard of care for physician unnecessary
"where the negligence and harmful results are sufficiently obvious as to lie
within common knowledge.").  In this case, however, neither situation
exists, and the Board must set forth the standard in evidence.
	The entry is:
Judgment vacated.  Remanded to the
Administrative Court with instructions to
remand to the Board of Licensure in Medicine
for further proceedings consistent with this
opinion.

WATHEN, C.J., dissenting. [¶17] I must respectfully dissent. Medical information belongs to the patient, not the consulting physician. After receiving two written requests from his patient, Dr. Balian's abject failure to explain his particular requirements for releasing copies of the patient's records was blatantly improper. The patient and the referring health care providers were left without any means for understanding the true reasons for Dr. Balian's failure to supply copies of routine medical records. That Dr. Balian's actions, ignoring his patient's request and subsequent inquiry without explaining his requirements, constituted a breach of his duty to his patient is surely a matter within common knowledge. Therefore the Board was not required to introduce expert testimony of the appropriate standard of care. See Searles v. Trustees of St. Joseph's College, 695 A.2d 1206, 1210 (Me. 1997) (citing Cyr v. Giesen, 150 Me. 248, 252, 108 A.2d 316, 318 (1954)). I would affirm the judgment.
Attorney for plaintiff: Chadbourn H. Smith, Esq., (orally) Fenton, Chapman, Fenton, Smith & Kane, P.A. P O Box B Bar Harbor, ME 04609-0020 Attorneys for defendant: Andrew Ketterer, Attorney General Jeffrey Frankel, Asst. Atty. Gen., (orally) Ruth McNiff, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . Title 32 M.R.S.A. § 3282-A(2)(F) provides in part: Grounds for discipline. The board may suspend or revoke a license pursuant to Title 5, section 10004. The following are grounds for an action to refuse to issue, modify, restrict, suspend, revoke or refuse to renew the license of an individual licensed under this chapter: . . . . F. Unprofessional conduct. A licensee is considered to have engaged in unprofessional conduct if the licensee violates a standard of professional behavior that has been established in the practice for which the licensee is licensed. 32 M.R.S.A. § 3282-A(2)(F) (Supp. 1998). {2} . The first release, executed on Dr. Howard's letterhead stationary, was labelled "Record Release Authorization" and stated, "I authorize and request you to release my medical records to [Dr. Howard]." The release included Dr. Howard's mailing address and the patient's signature. The second release, labelled "Records Release Authorization," read, "I authorize and request you to release my medical records to [Dr. Fowle]," and included Dr. Fowle's address and the patient's signature. {3} . The Board's charge erroneously cites 22 M.R.S.A. § 1711-A instead of 22 M.R.S.A. § 1711-B (1992). Title 22 M.R.S.A. § 1711-B provides in relevant part: 2. Access. Upon written consent of the person to whom copies of records must be released pursuant to this section, a health care practitioner shall release copies of all treatment records of a patient or a narrative containing all relevant information in the treatment records. The health care practitioner may exclude from the copies of treatment records released any personal notes that are not directly related to the patient's past or future treatment. The copies or narrative must be released to the designated person within a reasonable time. If the practitioner believes that release of the records is detrimental to the health of the patient, the practitioner shall advise the patient that copies of the treatment records or a narrative containing all relevant information in the treatment records will be made available to the patient's authorized representative upon presentation of a written authorization signed by the patient. The copies or narrative must be released to the authorized representative within a reasonable time. 3. Person receiving the records. Except as otherwise provided in this section, the copies or narrative specified in subsection 2 must be released to: A. The person who is the subject of the treatment record, if that person is 18 years of age or older and mentally competent; B. The parent, guardian ad litem or legal guardian of the person who is the subject of the record if the person is a minor, or the legal guardian if the person who is the subject of the record is mentally incompetent; or C. The designee of a durable medical power of attorney, if the person who is the subject of the record is incompetent and executed such an instrument. 22 M.R.S.A. § 1711-B(2)-(3) (1992). {4} . Balian argued for the first time on appeal that he advised the patient of his standards for release of the records during his meeting with her. Balian, however, never explained this to the Board at the hearing, and we therefore accept the Board's finding that Balian never communicated the requirement or standard for the release of patient records to the patient. {5} . Me. Const. art. I, § 6-A; U.S. Const. amend. XIV. "The due process requirements of the Maine and Federal Constitutions are identical." Board of Overseers of the Bar v. Lefebvre, 1998 ME 24, ¶ 15 n.13, 707 A.2d 69, 73 n.13. {6} . The Board's notice to Balian stated that if it found the allegations against him were true then it "may take such action as it is statutorily empowered to take, including, but not limited to reprimands, fines, suspension, probation, nonrenewal or any combination thereof, as deemed appropriate by the Board." We need not decide whether the Board did, in fact, have the power to suspend Balian's license pursuant to the adjudicatory hearing. Cf. 32 M.R.S.A. § 3282-A(1)(D) (Supp. 1998) (Board may seek suspension or revocation of license by filing complaint with Administrative Court pursuant to 4 M.R.S.A. § 1151) with 32 M.R.S.A. § 3282-A(1)(C) (Supp. 1998) (Board may hold adjudicatory hearing for modification or nonrenewal of license) and 10 M.R.S.A. §§ 8001-8003 (1997 & Supp. 1998) (setting forth disciplinary powers of state licensing boards but omitting State Board of Licensure in Medicine from list of covered boards). {7} . Presently, the Board consists of nine individuals. Three individuals are representatives of the public. The remaining six "must be graduates of a legally chartered medical college or university having authority to confer degrees in medicine and must have been actively engaged in the practice of their profession in this State for a continuous period of 5 years preceding their appointments to the board." 32 M.R.S.A. § 3263 (Supp. 1998). At Balian's hearing in September 1996, one public member was recused and another public member could not attend. As a result, only one public member participated in the hearing. {8} . The American Medical Association (AMA) Code of Ethics provides as follows: 7.01 Records of Physicians: Availability of Information to Other Physicians. The interest of the patient is paramount in the practice of medicine, and everything that can reasonably and lawfully be done to serve that interest must be done by all physicians who have served or are serving the patient. A physician who formerly treated a patient should not refuse for any reason to make records of that patient promptly available on request to another physician presently treating the patient. . . . 7.02 Records of Physicians: Information and Patients. Notes made in treating a patient are primarily for the physician's own use and constitute his or her personal property. However, on request of the patient a physician should provide a copy or a summary of the record to the patient or to another physician, an attorney, or other person designated by the patient. . . . . The record is a confidential document involving the physician-patient relationship and should not be communicated to a third party without the patient's prior written consent, unless required by law or to protect the welfare of the individual or the community. . . . American Medical Association, Code of Medical Ethics §§ 7.01 - 7.02 (1994). At oral argument on appeal to this Court, the Board stated that sections 7.01 and 7.02 were the basis for its decision. The record indicates that the Board never made reference to a specific provision during deliberations or during the hearing. In fact, the AMA's Code of Ethics may not even supply the appropriate standards to discipline Balian. Balian provided psychiatric counseling, which could have involved sensitive information that he believed warranted precautions in the form of a specific request from a physician and a witness to the patient's signature. This is arguably consistent with a Principle of Medical Ethics to "safeguard patient confidences within the constraints of the law." Id. at Preamble, Principle IV. Moreover, one health care treatise notes that "[w]hat constitutes an appropriate request will depend upon the circumstances. In routine cases, a provider may be justified in requiring that the patient give written authorization and that the physician make a written request prior to forwarding the information." Scott Becker, Health Care law: A Practical Guide § 19.04[1] (1998) (emphasis added). Further, Becker notes that "[p]sychiatric records have also been recognized as needing special protection." Id. at § 19.05[2]. We present these issues not in an attempt to discern or establish the proper ethical standard in this case, but rather to highlight the need for the Board to supply in the record an objective standard, and then utilize its expertise to apply the facts to the standard.