Dragan v. Connecticut Medical Examining Board

641 A.2d 422, 34 Conn. App. 343, 1994 Conn. App. LEXIS 153
CourtConnecticut Appellate Court
DecidedMay 10, 1994
Docket7878
StatusPublished
Cited by2 cases

This text of 641 A.2d 422 (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, 641 A.2d 422, 34 Conn. App. 343, 1994 Conn. App. LEXIS 153 (Colo. Ct. App. 1994).

Opinion

O’Connell, J.

This administrative appeal is before us on remand from the Supreme Court. The plaintiff is a physician licensed to practice medicine in Connecticut and the defendants are the Connecticut department of health services (department) and the Connecticut medical examining board (board). Both defendants are state agencies within the meaning of the Uniform Administrative Procedure Act (UAPA). General Statutes § 4-166 et seq.

The plaintiff’s prolonged journey through the legal system commenced in May, 1983, when the board, on motion of the department, brought charges against him and summarily suspended his medical license pursuant to General Statutes §§ 4-182 (c) and 19a-17 (c).1 The charges pertain to the plaintiff’s treatment of a patient for drug addiction. License revocation hearings commenced on June 1, 1983, and continued on June 7, 1983, August 2, 1983,2 August 28, 1984, and culmi[346]*346nated in a board meeting on October 23, 1985, when the board voted to revoke the plaintiff’s license.

The plaintiff appealed the board’s decision to the Superior Court which reversed the decision and remanded the case to the board for a new hearing. The defendants appealed to this court. We considered the case in Dragan v. Connecticut Medical Examining Board, 24 Conn. App. 662, 591 A.2d 150 (1991), wherein we affirmed the trial court’s decision that the plaintiff had been denied his right to cross-examine the board’s chief witness and had also been denied discovery of witnesses’ prehearing statements. Because we believed those issues dispositive of the appeal, we did not reach the defendants’ remaining appellate claims or the plaintiff’s cross appeal.

The Supreme Court granted certification and reversed this court’s decision, concluding that the plaintiff had waived his right of cross-examination as well as his right to challenge the nondisclosure of witnesses’ prior statements. Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 613 A.2d 739 (1992). The Supreme Court remanded the case to this court to consider the sole remaining issue in the defendants’ appeal and the issues in the plaintiff’s cross appeal. Id.

Appeal

The defendants claim that the trial court, in remanding the case for a new hearing, improperly held that the board was required to indicate either in its minutes or in its memorandum of decision that voting members who had not heard the case had nonetheless familiarized themselves with the record. We reverse the decision of the trial court and remand the case for further proceedings.

The following facts are necessary for disposition of this issue. The board received evidence at hearings on [347]*347June 1,1983, June 7,1983, and August 28,1984. Sometime after the last hearing, the board referred the matter to Assistant Attorney General Paul J. Lahey to prepare a memorandum of decision. On October 23, 1985, the board met and voted to accept the memorandum of decision that Lahey had prepared.3 Only four board members were present and voting at this meeting. Of these four, only the board chairman, Henry J. Mannix, Jr., had attended all four hearings. Shirley Y. Williams missed the August 28,1984 hearing. Joan H. Blakeslee missed the August 2, 1983 hearing4 and Harvey A. Katz missed all three of the 1983 hearings.5 The record does not indicate whether Williams, Blakeslee and Katz, pursuant to General Statutes (Rev. to 1983) [348]*348§ 4-179,6 read the record of the hearings they missed or otherwise familiarized themselves with the evidence that was received in their absence.7

Our Supreme Court recently decided Pet v. Dept. of Health Services, 228 Conn. 651, 638 A.2d 6 (1994), which involved the identical question of voting by board members who had not attended all of the board hearings. In Pet, the Supreme Court concluded, on facts virtually identical to those of the present case, that the record did not disclose “whether the board was sufficiently familiar with the record of [the case] to make an informed judgment in compliance with § 4-179. The trial court, therefore, lacked any basis for determining whether the board had complied with the mandates of the UAPA.” (Emphasis in original.) Id., 682. [349]*349Consequently, the Supreme Court remanded Pet to the trial court for supplementation of the record.

The trial court record in this case, as in Pet, is silent as to whether the board members properly apprised themselves of the administrative record so as to fulfill their duties under the UAPA. On the basis of the record’s silence, the trial court remanded the case to the board for a new hearing, concluding that the plaintiff was “entitled to a clear showing by the board, either in the minutes of the meeting or its memorandum decision that all members voting on the decision . . . had read the record of the case prior to voting on it.” Under the ruling of Pet, the trial court’s remand to the board for a new hearing in this case was premature. Pet instructs that the trial court must first supplement the record in order to provide a basis for determining the issue of whether the board members had sufficiently familiarized themselves with the record. Accordingly, we reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.8

Cross Appeal

The plaintiff raises the following issues in his cross appeal: (1) Does the board have the burden of proving that the missing portion of the administrative record was harmless? (2) Should the trial court have permitted the plaintiff to introduce additional evidence? (3) Was the evidence sufficient to find the plaintiff guilty of the charges made against him?

[350]*350The following facts are necessary to the disposition of the first issue. On the plaintiffs appeal from the board’s decision, the board made its return of record to the Superior Court in accordance with General Statutes (Rev. to 1983) § 4-183 (d).9 Because the board’s return of record did not contain at least seven exhibits entered into evidence during the license revocation hearing, the plaintiff moved for default. The trial court denied this motion. Thereafter, the board, with the cooperation of plaintiff’s counsel, received copies of six of the seven exhibits missing from the record. The lone missing exhibit, which neither of the parties could find or reconstruct, contained the plaintiff’s handwritten notes relating to his treatment of Collette Conor, the person who provided the basis for the charges brought against the plaintiff. The plaintiff argues that the board has the burden of proving that the missing exhibit did not prejudice his case.

Pet is helpful in the disposition of this issue. In Pet, the plaintiff alleged that the administrative record on which the board voted was incomplete because of missing exhibits. Pet

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Related

Dragan v. Conn. Med. Examining Bd., No. Cv950312176s (May 22, 1995)
1995 Conn. Super. Ct. 4970 (Connecticut Superior Court, 1995)
Dragan v. Connecticut Medical Examining Board
644 A.2d 918 (Supreme Court of Connecticut, 1994)

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Bluebook (online)
641 A.2d 422, 34 Conn. App. 343, 1994 Conn. App. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dragan-v-connecticut-medical-examining-board-connappct-1994.