Connecticut State Medical Society v. Connecticut Board of Examiners in Podiatry

524 A.2d 636, 203 Conn. 295, 1987 Conn. LEXIS 835
CourtSupreme Court of Connecticut
DecidedApril 21, 1987
Docket12938
StatusPublished
Cited by143 cases

This text of 524 A.2d 636 (Connecticut State Medical Society v. Connecticut Board of Examiners in Podiatry) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connecticut State Medical Society v. Connecticut Board of Examiners in Podiatry, 524 A.2d 636, 203 Conn. 295, 1987 Conn. LEXIS 835 (Colo. 1987).

Opinion

Shea, J.

The issues in this appeal are whether a medical society and one of its physician members have standing to appeal from a declaratory ruling of the board of examiners in podiatry regarding the scope of podiatry practice in Connecticut. Holding that the plaintiffs had failed to allege sufficient grounds to establish aggrievement, the Superior Court rendered judgment dismissing the appeal. The plaintiffs are the Connecticut State Medical Society (medical society), a nonprofit organization of physicians in which membership is voluntary, and Enzo Sella, a physician member of the medical society specializing in orthopedics whose practice includes the diagnosis and treatment of medical problems of the ankle. The defendants are the board of examiners in podiatry (board), the commissioner of health services, and three podiatrists who had been parties to the declaratory ruling proceeding before the board. We find error in the conclusion of the court that the plaintiffs lack standing.

The complaint alleges that in January, 1984, the Connecticut General Life Insurance Company, a Medicare intermediary, issued a bulletin stating that, because the practice of podiatrists is limited to the diagnosis, prevention and treatment of foot ailments, Medicare would not pay for services provided by podiatrists involving problems of the ankle. In March, 1984, in response to the bulletin, the board requested the attorney general to issue a legal opinion on whether treatment of the ankle is within the scope of podiatry practice as defined by General Statutes § 20-50.1 Indi[297]*297eating that resolution of that question would entail a factual determination regarding the relation between the foot and the ankle, the attorney general declined to issue the requested ruling.

Pursuant to General Statutes § 4-176,2 the board subsequently held a hearing and then, on June 27, 1985, issued a declaratory ruling that, because “the ankle is part of the foot, and the foot is part of the ankle,” the treatment of ankle problems is within the scope of podiatry practice in Connecticut. Claiming that the ruling was arbitrary and capricious, clearly erroneous, in excess of the statutory authority of the board, and made upon unlawful procedure in violation of constitutional [298]*298and statutory provisions, the plaintiffs appealed to the Superior Court pursuant to General Statutes § 4-183.3 The defendants filed motions to dismiss, alleging that the plaintiffs were not aggrieved within the meaning of §§ 4-176 and 4-183, and that the court therefore lacked jurisdiction over the subject matter. The court granted the defendants’ motions to dismiss in respect to both plaintiffs. From the judgment the plaintiffs have appealed.

I

We first address the issue of whether the motions to dismiss were properly granted in respect to the plaintiff physician, Enzo Sella. “A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Emphasis in original.) Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984). [299]*299Unless Sella could establish that he was aggrieved, he had no standing to appeal. General Statutes §§ 4-176, 4-183; Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).

The complaint alleges that the declaratory ruling of the board “is likely to cause a substantial reduction in the quality of medical care rendered in Connecticut to persons suffering from problems of the ankle,” and that the ruling “endangers the health of Connecticut residents who may rely on podiatrists for medical care of such problems . . . .” The complaint further states that Sella will suffer a loss of revenues because patients will seek treatment of ankle problems from podiatrists rather than physicians. The trial court held these grounds insufficient to establish Sella’s aggrievement,4 and also rejected the additional ground set forth in the plaintiffs’ memorandum in opposition to the motions to dismiss, that, as a physician, Sella has a constitutionally protected property interest in the practice of medicine that “should confer standing and aggrievement for challenges of encroachment upon his professional interests.”

“ ‘The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, “the party claiming aggrievement must successfully demonstrate a specific personal and legal [300]*300interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.”. . ” Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). “Aggrievement is established if ‘there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.’ O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).” Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).

Neither the trial court nor the defendants have seriously challenged the notion that physicians such as Sella have a legally protected property interest in the practice of medicine. A licensed physician has a “right and estate in his profession” of which he cannot be deprived without due process of law. Dent v. West Virginia, 129 U.S. 114, 123, 9 S. Ct. 231, 32 L. Ed. 623 (1889). “The right of a physician to practice his profession is a property right, of which he cannot be arbitrarily deprived.” Butcher v. Maybury, 8 F.2d 155, 158 (W.D. Wash. 1925). “Cases are legion holding, in one way or another, that the right of a licentiate to practice his profession is a property right, or a right in the nature of a property right, or a valuable franchise, or a valuable privilege.” Sloan v. Mitchell, 113 W. Va. 506, 509-10, 168 S.E. 800 (1933); see also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980); Burden v. Hoover, 9 Ill. 2d 114, 118, 137 N.E.2d 59 (1956). Thus, the first prong of the test for determining aggrievement, the existence [301]*301of a specific personal and legal interest in the subject matter of the decision, has been satisfied with respect to this plaintiff.

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Bluebook (online)
524 A.2d 636, 203 Conn. 295, 1987 Conn. LEXIS 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connecticut-state-medical-society-v-connecticut-board-of-examiners-in-conn-1987.