Dragan v. Connecticut Medical Examining Board

591 A.2d 150, 24 Conn. App. 662, 1991 Conn. App. LEXIS 168
CourtConnecticut Appellate Court
DecidedMay 21, 1991
Docket7878
StatusPublished
Cited by11 cases

This text of 591 A.2d 150 (Dragan v. Connecticut Medical Examining Board) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dragan v. Connecticut Medical Examining Board, 591 A.2d 150, 24 Conn. App. 662, 1991 Conn. App. LEXIS 168 (Colo. Ct. App. 1991).

Opinion

O’Connell, J.

The defendants appeal from the trial court’s judgment remanding for a new hearing a contested administrative case that resulted in the revocation of the plaintiff’s license to practice medicine. Proceedings were conducted pursuant to the Uniform Administrative Procedure Act (UAPA). General Statutes § 4-166 et seq. The trial court correctly concluded that the plaintiff was denied his right of cross-examination and also should have been given copies of the witnesses’ statements prior to the hearing. We affirm in part and reverse in part.

The plaintiff is a physician licensed to practice medicine in Connecticut and the defendants are the state department of health services (the department) and the Connecticut medical examining board (the board). Both defendants are state agencies within the meaning of UAPA.

In May of 1983, the board, on motion of the department, issued an order summarily suspending the plaintiff’s medical license pursuant to General Statutes §§ 4-182 (c) and 19a-17c.1 All of the charges of which [664]*664the plaintiff was found guilty pertained to his treatment of the same patient, Collette Connor, for drug addiction.2 Hearings held on various days between June 1, 1983, and October 28,1984, ultimately resulted in the board’s October 23, 1985 decision to revoke permanently the plaintiff’s medical license.

After the June 1,1983, hearing, the case proceeded next on June 7, 1983, and again on August 2, 1983. Because a criminal prosecution had been instituted against the plaintiff involving many of the same facts, the parties agreed to a stay of these proceedings pending completion of the criminal case. At the same time, they also entered into a consent order that permitted the plaintiff to continue practicing medicine, subject to certain limitations and conditions not relevant here, [665]*665during the stay and until thirty days after the disposition of the criminal case and upon approval by the board.

On April 4, 1984, the plaintiff pleaded guilty in the criminal prosecution to two counts of reckless endangerment in the second degree in violation of General Statutes § 53a-64 (a),3 a class B misdemeanor. He was sentenced to one year in the custody of the commissioner of correction, execution suspended, two years probation to include 1000 hours of community service plus a $1500 fine. On May 9,1984, one month after conclusion of the criminal proceedings, the plaintiff wrote to the board requesting the termination of all restrictions on his practice. The board never responded to his letter but instead, on August 28, 1984, resumed the hearing, which had recessed on August 2,1983. Then, more than a year later, the board issued a decision permanently revoking the plaintiffs medical license on October 23, 1985.

The plaintiff appealed to the trial court claiming, inter alia, (1) that he had been denied his right of cross-examination, (2) that he should have been furnished with witnesses’ statements prior to the hearing, and (3) that the board should have terminated the consent order restrictions upon his request. The trial court found, inter alia, “that the denial of the opportunity by the plaintiff to cross-examine Collette Connor violated fundamental principles of fairness which are required in the conduct of administrative hearings.” The court remanded the case for a new hearing and ordered the department to furnish the plaintiff with copies of prior statements of all witnesses who would testify against the plaintiff at the rehearing. The court [666]*666further ordered that if the plaintiff asked for it the board must hear evidence and rule on the plaintiff’s request to terminate the restrictions under the consent order. The defendants appeal to this court and the plaintiff cross appeals.

We turn first to the trial court’s ruling on the lack of an opportunity to cross-examine Connor. Connor was clearly a key witness and the centerpiece of the entire proceeding. All charges against the plaintiff relate solely to her. Without Connor this case would not have arisen.

The record shows that Connor testified as a department’s witness on June 1, 1983, the first day of the hearing. At the conclusion of her direct testimony, the department instructed her to return on the next hearing date for cross-examination. She did not appear on that day and has never returned. Consequently, the plaintiff never had an opportunity to cross-examine her.

The defendants argue that the record does not support a conclusion that Connor did not return for cross-examination. We do not agree. The transcript shows that at the opening of the next hearing the department informed the board and the plaintiff that Connor had not yet arrived because she was apparently experiencing difficulty obtaining transportation. The department then proceeded with other evidence in its case-in-chief. The defendants contend that it is possible that Connor appeared later in the day and that the plaintiff had changed his mind and decided that he no longer wanted to cross-examine her. This is pure unsupported speculation. If Connor was important at the start of the next hearing, we will not guess that her later appearance in the hearing room was so insignificant that no one mentioned it on the record.

Furthermore, the defendants’ contention is contrary to the principle that once a condition is proven to exist, [667]*667it is presumed to continue to exist until the contrary is shown. Taintor v. Hartford, 123 Conn. 515, 539, 197 A. 173 (1937); B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 42. Thus, in the absence of a showing that Connor had returned for cross-examination, the trial court properly inferred that her absence continued, thereby denying the plaintiff his right to cross-examine her.

Cross-examination is an indispensable means of eliciting facts that may show motive, bias, interest or prejudice. State v. Fullwood, 199 Conn. 281, 286, 507 A.2d 85 (1986). It “ 'is a substantial legal right which may not be abrogated or abridged at the discretion of the court.’ ” Pickman v. Pickman, 6 Conn. App. 271, 277-78, 505 A.2d 4 (1986). We recognize that proceedings before administrative agencies are not bound by strict rules of evidence and procedure but they cannot be conducted so as to violate fundamental rules of justice. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). Nor may the informalities that are permissible in an administrative hearing be permitted to prejudice the rights of the parties. If this should happen, the court is available to rectify the wrong. Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 540, 79 A.2d 350 (1951). Moreover, the right of cross-examination is expressly provided for in contested hearings conducted by agencies subject to the UAPA, General Statutes § 4-1.78 (5).4

The defendants argue that the plaintiff could have subpoenaed Connor to return and thus have been able to exercise his right of cross-examination.

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Bluebook (online)
591 A.2d 150, 24 Conn. App. 662, 1991 Conn. App. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dragan-v-connecticut-medical-examining-board-connappct-1991.