Herrington v. Maine Bd. of Licensure in Med.

• Court: Superior Court of Maine
• Decided: November 9, 2011
• Docket: KENap-10-64
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. AP-~0-64 r~E JV) -KCN- r I r1 fc'!Ol I I ;'

RYAN HERRINGTON, M.D., Petitioner

v. ORDER ON RULE 80C APPEAL

MAINE BOARD OF LICENSURE IN MEDICINE Respondent n ::: r--- S'2 ~~,~ ;;t~ fl1 C:3 ~- -:.::::: 0111 1 -,-, r- -0 c=: Before the Court is Petitioner's appeal pursuant to M.R. Civ. P. 80C @ffl. a}> ;:c_,; rq -i-;.-J ...D November 9, 201 0 "Letter of Guidance" issued to him by Respondent, Main&-&oar~9f (;"1

Licensure in Medicine.

FACTS

Petitioner Dr. Ryan Herrington (Dr. Herrington) is the former medical director for

the Maine Department of Corrections. Respondent, Maine Board of Licensure in

Medicine (the Board), is a professional and occupational licensing board created pursuant

to 5 M.R.S.A. § 12004-A. Title 32 M.R.S.A., chapter 48 defines the composition,

powers, and authority of the Board.

On October 15, 2009, the Board received a Complaint filed by an inmate J.M.

(Herinafter "J.M. "), a prisoner within the Department of Corrections system, against Dr.

1 Herrington. The Complaint concerned urological care J.M. had received from certain

unknown medical staff under Dr. Herrington's supervision. J.M. suffered from urinary

retention and had been permitted to see an outside urologist who recommended that he

self-catheterize three times per day and that he return for a follow-up in one month. After

that, J.M. claimed that medical staff only allowed him to self-catheterize 1-2 times per

day, and that he was not permitted to return to the urologist for over two months.

On November 5, 2009, the Board sent Dr. Herrington a copy of the Complaint

along with a letter explaining that it was required to investigate the Complaint further.

The letter informed Dr. Herrington that he had 30 days to respond to the allegations

contained in the Complaint. The letter did not inform Dr. Herrington of any possible

legal or ethical violations. Dr. Herrington's lawyer asked the Board to notify him ifthere

were any specific ethical rules or standards of practice that were implicated by the

investigation, but the Board did not respond to his request.

As requested, on December 3, 2009, Dr. Herrington provided written answers to

the Complaint. He explained that J.M.' s follow-up with the urologist had been delayed

because he had revoked consent for the release of information. He further explained that

medical staff had reduced the frequency of J .M.' s self-catheterization as part of a

weaning process, and that three-times-per-day self-catheterization had been resumed after

ten days. Nonetheless, by letter of January 19, 2010, the Board informed Dr. Herrington

that it had decided to investigate the Complaint further and instructed him to answer the

following two questions in writing: "(1) Why was the opinion ofthe consulting urologist

overruled? (2) Why was there no other urodynamic testing performed on this patient

until after he complained?" Dr. Herrington answered these questions by letter of January

2 29, 2010. The Board did not ask Dr. Herrington to address or explain his supervisory

role over the medical staff who had made the decisions in question. Thus, he did not

comment on it.

By letter of March 11, 2010, the Board informed Dr. Herrington that it had met

and decided to hold an "Informal Conference" to further discuss the Complaint. It

indicated that the Informal Conference "has fact-finding as its purpose," and "is an

opportunity for open exchange of information." On March 17, 2010, Dr. Herrington's

lawyer again wrote to the Board to renew his request that it advise him in advance of

whether the "allegations of the complaint in this case implicate any specific ethical rule

or standard of practice." On September 7, 2010, the Board sent Dr. Herrington notice of

the time and date of the Informal Conference and identified two specific issues for

discussion: "( 1) Treatment related to the patient's urology issues; and (2) Delay in

obtaining testing that was recommended by a urologist." On October 12, 2010, Dr.

Herrington appeared at the Informal Conference. There, the Board voted to dismiss the

Complaint against Dr. Herrington and issue him a Letter of Guidance. This decision to

issue a Letter of Guidance was based on the Board's finding, revealed in its minutes, that

Dr. Herrington "did not ... adequately supervise the institution's system and the patient's

need for follow up." In the Letter of Guidance, dated November 9, 2010, the Board

stated that it "does not constitute an adverse disciplinary action and is not reportable to

any data bank." It stated further:

In this case, a patient complains the recommendations of a consultant for his urologic problem were not followed. He also states he complained about his difficulties multiple times but his complaints were ignored. You replied that the recommendations were followed with the exception of a ten day period and the patient did have appropriate follow-up with the

3 specialist. After review, the Board invited you to an Informal Conference to further discuss the patient's care. At the conference, you indicated you were not directly involved with the patient's care; however, you were the Medical Director of the clinic at the time.

Even though the Board concluded that your behavior did not rise to a level of misconduct sufficient to warrant disciplinary action, the Board wishes to convey serious concerns about your actions and expects that you will:

recognize even though you were not directly involved with the patient's care, as Medical Director you have a responsibility to supervise the institution's medical system and the patient's need for follow-up care.

This letter of guidance, together with the complaint, response and investigative materials, will be placed in your file and held for ten (1 0) years. These materials may be accessed and considered by the Board in any subsequent action commenced against you within this 10-year time period ... [T]he letter of guidance itself is not confidential.

On December 16, 2010, Dr. Herrington filed the present 80C appeal in this Court.

ANALYSIS

I. Dr. Herrington does have standing to appeal the Letter of Guidance to the Superior Court through MR. Civ. P. 80C.

A threshold issue is whether Dr. Herrington has standing to appeal the Letter of

Guidance to the Superior Court. Standing is the "irreducible constitutional minimum"

necessary to make a justiciable "case or controversy" under Article III ofthe

Constitution. Lujan v. Defenders ofWildlife, 504 U.S. 555, 560 (1992). 1 The right to

1 This consists of three elements. There must be: (1) An "injury in fact," meaning "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical," (2) "a causal connection between the injury and the conduct complained of," and (3) a likelihood that a favorable decision will redress the injury. Lujan, 504 U.S. at 560-561 (citations and quotations omitted).

4 appeal an administrative decision is governed by the Administrative Procedure Act.

Nelson v. Bayroot, LLC, 2008 ME 91, ~ 9, 953 A.2d 378. Under the APA, anyone who is

"aggrieved by final agency action" is entitled to Superior Court review. 5 M.R.S.A. §

11001(1). "A person is aggrieved within the meaning ofthe APA ifthat person has

suffered particularized injury -that is, if the .agency action operated prejudicially and

directly upon the party's property, pecuniary or personal rights." Nelson, 2008 ME 91, ~

10, 953 A.2d 378 (citations omitted).

The claimed injury must be "distinct from any experienced by the public at large

and must be more than an abstract injury." !d. (citation omitted). The Court will

"examine the issue of standing in context to determine whether the asserted effect on the

party's rights genuinely flows from the challenged agency action." !d.

Both parties rely heavily on Daly v. Bd. of Licensure in Med., 2002 WL 1974030

(Me. Super. July 28, 2002), with facts very similar to those here. In that case, the Maine

Board of Licensure in Medicine informed a doctor that there had been a complaint filed

against him and instructed him to respond in writing, which he did. !d. at *1. There was

no informal conference. The Board then dismissed the complaint, but issued the doctor a

letter of guidance. !d. The letter found "without stating directly ... that he had engaged

in unprofessional conduct, criticized his actions and told him to improve his behavior."

!d.

Note that the issue before the Superior Court was not whether the doctor had

standing; the doctor was before the Superior Court without any discussion on the topic.

Rather, the issue was whether the requirements of procedural due process were satisfied

when the Board had not given the doctor notice of the professional standards he was

5 alleged to have breached. !d. at ** 1-2. The Court held that the doctor was entitled to

procedural safeguards and the notice had been inadequate. !d. at *2. In getting there, the

Court first implicitly found a protectable right in that the letter of guidance "may not have

been called disciplinary action or characterized as a sanction but it is." !d. at* 1. "While

the letter of guidance does not suspend or revoke a license it does contain adverse

findings, it is public and could be used against [the doctor] in the future." !d. at *2.

In Bd. of Overseers ofthe Bar v. Ingeneri, 440 A.2d 1039 (Me. 1982), the issue

specifically was one of standing when some action short of discipline is taken on a

license to practice law. In that case, a lawyer was found by a single justice of the Maine

Supreme Judicial Court to have committed multiple violations of the Bar Rules, and he

was suspended from practicing law for three months. !d. at 1040. On appeal, he did not

challenge the sanction itself, but solely the justice's factual finding that he had

misrepresented facts to his client. !d. Bar Counsel maintained that the lawyer lacked

standing because he was not "aggrieved" by a decree prejudicially and directly affecting

a property, pecuniary, or personal right. !d. While the factual finding alone was not itself

disciplinary, the Law Court held that the lawyer was "aggrieved" because the finding of

misrepresentation "operates as a public censure that could cause serious harm to

defendant's professional reputation and, ultimately, to his livelihood." !d.

In this case, Dr. Herrington takes Daly to mean that a doctor in his position is

"aggrieved" by a Letter of Guidance because it operates as a sanction. (Br. of Pet. 6-7.)

Similarly, he compares himself to the "attorney whose reputation was impugned" in

Ingeneri. (Br. of Pet. 7.) Although the Letter of Guidance purports to be something other

than discipline, as was the factual finding in Ingeneri, "it is explicitly critical of his

6 professional conduct," it conveys serious concerns, and strongly implies that his

professional conduct was deficient. (Br. of Pet. 7-8.)

Conversely, the Board urges the Court to critically distinguish this case from Daly

and Ingeneri because, based on its reading, those decisions rested on an explicit finding

of misconduct and breach of professional standards. (Br. of Resp. 14.) Here, it

maintains, there was no such direct conclusion within the Letter of Guidance. !d.

However, we cannot know from the Daly opinion how direct the letter was in that case as

compared to the one here. The language is not quoted in the order. The Court wrote that,

"without stating directly," the letter found the doctor to have engaged in misconduct and

breached professional standards. Daly, at *1 (emphasis added). Arguably, the Letter of

Guidance here did the same, so we cannot automatically distinguish Daly on those

grounds. Furthermore, even where standing rested on a factual finding of misconduct, as

in Ingeneri, there is nothing to foreclose the court from considering other factors in the

standing analysis.

In any event, a finding of wrongdoing can be inferred from the Letter of

Guidance. The Letter of Guidance did not directly state that Dr. Herrington had

committed wrongdoing or breached a specific professional or ethical rule, but its

admonition strongly implies that he did. By expressing its "serious concerns" about Dr.

Herrington's actions and reminding him of his "responsibility to supervise" the medical

staff, a reasonably perceptive reader would likely deduce that the Board considered him

to have failed in his supervisory role. Furthermore, the minutes from the Board meeting

7 following Dr. Herrington's Informal Conference explicitly state as such. 2 Any ambiguity

surrounding the Board's explanation should not bar an appeal when its inference of

wrongdoing is apparent. If anything, the Board's vagueness simply raises due process

concerns.

Whether or not we characterize the Letter of Guidance as containing a factual

finding of misconduct, it easily operates as a "public censure that could cause serious

harm to [Dr. Herrington's] professional reputation and, ultimately, to his livelihood."

Ingeneri, 440 A.2d at 1040. Whereas the Board urges that any harm to Dr. Herrington is

abstract and speculative, (Br. of Resp. 15), cases finding standing do not seem to require

any concrete adverse event, but seem implicitly to recognize that damage to an otherwise

clean professional record is sufficient.

As a practical matter, moreover, it would be unrealistic to require a licensee to

instantaneously prove concrete harm when he has not had time to feel the effects.

Although the Letter of Guidance was not assigned the label "discipline," it is not hard to

imagine practical adverse effects due to the facts that the letter will remain in Dr.

Herrington's professional file for ten years, it is not confidential, and the Board may

consider it during any subsequent disciplinary action.

II The Court is not properly positioned to review the Letter of Guidance because the record below was not adequately developed.

Under 5 M.R.S.A. § 11 007(4)(B), the Superior Court has the ability to "[r]emand

the case for further proceedings, findings of fact or conclusions of law or direct the

2 The minutes state that Dr. Herrington "did not ... adequately supervise the institution's system and the patient's need for follow up."

8 agency to hold such proceedings or take such action as the court deems necessary."

Having determined that the Letter of Guidance essentially functions as an appealable

sanction, the Court finds that the Board record in support of the Letter is inadequate to

affirm, reverse, or modify the decision as provided for in 5 M.R.S.A. § 11007(4)(A), (C).

As noted above, the Letter of Guidance suggests that Dr. Herrington failed in his

responsibility to supervise jail medical staff insofar as it related to J.M. 's urological care.

The Court cannot evaluate the truth of this allegation because there is basically no

evidence in the record concerning Dr. Herrington's supervisory responsibilities. First, the

Complaint, and the Board's correspondence and investigation leading up to the Informal

Conference contain no concern or inquiry into Dr. Herrington's role as a supervisor.

Rather, the focus was on the justification for the decrease in frequency of J.M. 's self-

catheterization. Second, the record of the Informal Conference itself is very limited and

reveals nothing about Dr. Herrington's role as supervisor. There is no transcript, and the

only evidence of what happened is the minutes of the ensuing Board meeting. The

minutes take up only 113 of a typewritten page, and simply state that Dr. Herrington

failed to "adequately supervise the institution's system and the patient's need for follow-

up." The minutes provide no basis for this conclusion. In short, there is nothing in the

record before the Letter of Guidance that reflects concern about, or inquires into, Dr.

Herrington's supervisory role.

The Court recognizes that the Board did not intend the Letter of Guidance to be

disciplinary and, as such, did not adequately develop or preserve the record for appeal.

As such, the Court refrains from reversing the Board's decision due to lack of substantial

evidence or constitutional due process violations, as Dr. Herrington urges. Instead, the

9 Court remands so that the Board may develop its findings if it chooses to pursue further

proceedings against Dr. Herrington.

The entry will be:

The Court REMANDS the case to the Board.

The Clerk is directed to incorporate this Order by reference in accordance with MRCivP

79(a).

I I DATE

10 Date Filed 12/16110 Kennebec Docket No. _Aa..PI:...L..llOu.:-=.J6u...4:L.-_ _ _ _ _ _ _ _ __ County

Action _.JPweL~t....~iut-...~iu.ou..nL-..~.f~ol..L.r----'l.R.s:e~v..~-i.s:e.~~~~.w_ _ _ _ _ __ soc J. Murray

Rvan Herrington M.D. vs. ~_Boar-d __a_£ _LicensurP in M~d ic ine Plaintiff's Attorney Defendant's Attorney Christopher Taintor, Esq. Dennis Smith, AAG 415 Congress Street 6 State House Station P.O. Box 4600 Augusta Maine 04333-0006 Portland Maine 04112-4600

Date of Entry

12/16/10 Rule SOC Petition for Review with Independent Claim for Equitable and/ or Declaratory Relief, filed. s/Taintor, Esq. 12/29/10 Appearance and Statement of Position, filed. s/tSmith, AAG

1/10/11 Certification of Record, filed. s/Maureen Lathrop, Sec. NOTICE AND BRIEFING SCHEDULE ISSUED Copies mailed to attys. of record. 2/22/11 Brief of Petitioner, filed. s/Tanitor, Esq.

3/23/11 Brief of Respondent, filed. s/Smith, AAG

4/S/11 Reply Brief of Petitioner, filed. s/Taintor, Esq.

7/. J... . _.;.rt.... ~c:-~ Notice ot settmg tor---:.. J l} ..... ;..... ......-ol'.••• '""""',_,.·•' sent 10 attorneys of record. ,/

7/13/11 Hearing held on 7/7/11 with the Hon. Justice Robert Murray, presiding. Tape 1432 Index 610S-7173. Tape 1433 Index 102-430. Oral arguments made to the court. Court to take matter under advisement. Christopher Taintor, Esq. for the Pettitioner and Dennis Smith, AAG for the Respondent. 11/9/11 ORDER ON RULE SOC APPEAL, Murray, J. (10/2S/11) The Court REMANDS the case to the Board Copies to attys. of record.