Wolfe v. State Board of Osteopathic Medicine

745 A.2d 121, 2000 Pa. Commw. LEXIS 38
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 31, 2000
StatusPublished
Cited by1 cases

This text of 745 A.2d 121 (Wolfe v. State Board of Osteopathic Medicine) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolfe v. State Board of Osteopathic Medicine, 745 A.2d 121, 2000 Pa. Commw. LEXIS 38 (Pa. Ct. App. 2000).

Opinion

JIULIANTE, Senior Judge.

Gary E. Wolfe, D.O., petitions for review of the April 16, 1999 order of the State Board of Osteopathic Medicine (Board) denying his petition seeking modification of the Board’s adjudication and order suspending his license to practice osteopathic medicine and surgery until May 12, 2001, and stating that he may apply for reinstatement upon completion of his suspension on or after that date. Citing Section 15 of the Osteopathic Medical Practice Act (Act),1 entitled “Reasons for refusal, revocation or suspension of license,” Wolfe argues that the Board erred in denying his petition for modification without holding a hearing. Subsection (d) of that section provides as follows:

(d) All actions of the board shall be taken subject to the right of notice, hearing, adjudication and appeal therefrom in accordance with the provisions of Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure).

63 P.S. § 271.15(d). For the reasons that follow, we affirm the Board’s order deny[123]*123ing Wolfe’s modification petition without holding a hearing.

On May 12, 1993, the Board issued an adjudication and order suspending Wolfe’s license to practice osteopathic medicine and surgery indefinitely, based on findings that he was unable to practice due to drug abuse and that he had violated a November 20, 1991 probation order of the Board. In that adjudication and order, the Board permitted him to seek reinstatement after five years.

On December 15, 1995, the Board issued another adjudication and order suspending Wolfe’s license to practice for three years, to commence on May 12, 1998 and to be served consecutively with the minimum five-year suspension imposed by the Board in its 1993 adjudication and order. This license suspension emanated from Wolfe’s convictions in federal court for Medicare and mail fraud and in state court for Medicaid fraud.

On February 23, 1999, Wolfe filed a petition for modification, therein alleging that he has made significant progress in his personal rehabilitation and requesting that the Board schedule a hearing for purposes of considering the reinstatement of his license. The Commonwealth, via the prosecuting attorney for the Bureau of Professional and Occupational Affairs (BPOA), filed an answer to Wolfe’s petition therein denying the allegations of mitigation and expressing extraordinary concern as to Wolfe’s ability to practice medicine safely in light of his past wrongdoings.

In an order mailed April 16, 1999, the Chairman of the State Board of Osteopathic Medicine denied Wolfe’s petition for modification on the basis of the petition and answer thereto. Wolfe filed a petition for review of that order with this Court.2

Wolfe contends that all Board decisions should be made only after an evidentiary hearing, except where the Board has no discretion. Citing Galena v. Com., Department of State, Bureau of Professional and Occupational Affairs, 122 Pa.Cmwlth. 315, 551 A.2d 676 (1988), Wolfe concedes that the Board need not hold evidentiary hearings where it has no discretion to modify a period of suspension. See also Denier v. State Board of Medicine, Bureau of Professional and Occupational Affairs, 683 A.2d 949 (Pa.Cmwlth.1996). In Galena^ we held that since the State Board of Medicine did not have discretion to suspend Galena’s license for a period of less than ten years, it did not err in refusing to grant the doctor a hearing where he could present mitigating evidence against the ten-year suspension.3

Wolfe contends that since the Board has discretion under Section 15(c)(5) of the Act to suspend enforcement of a suspension and place a licensee on probation,4 it has the discretion to modify his suspension. Thus, pursuant to Section 15 of Act, entitled “Reasons for refusal, revocation or suspension of license,” Wolfe argues that all actions regarding a modification should not proceed without an evidentiary hearing. He emphasizes Section 15(d), which provides that “[a]ll actions of the board shall be taken subject to the right of notice, hearing, adjudication and appeal therefrom.”

[124]*124In addition, Wolfe points out that the Board granted another osteopathic doctor, Dr. Zahorian, an evidentiary hearing where that doctor petitioned for modification of his suspension three years after the Board issued an order. (Zahorian, D.O. v. Commonwealth, No. 0146-MISC-98, State Board of Osteopathic Medicine, April 15, 1999). Thus, Wolfe argues that because the Board held two evidentiary hearings on two of Dr. Zahorian’s petitions for modification, the Board had no grounds for acting on Wolfe’s petition without a hearing.

BPOA notes that Wolfe’s suspensions originated with adjudications and orders from which he never appealed. Further, it notes that the Board has not initiated any further action against Wolfe since it issued the 1995 adjudication and order. In addition, it points out that Wolfe does not and did not challenge the fact that he received notice and a hearing before the Board imposed both the 1993 and 1995 suspensions.

BPOA argues that notice and an opportunity to be heard are required only when the Board takes an action against a licensee. It concedes that the act of suspending or revoking a license infringes upon a legitimate protected property right thereby requiring notice and a hearing. Lee v. Com., Bureau of State Lotteries, Department of Revenue, 89 Pa.Cmwlth. 218, 492 A.2d 451 (1985). It contends, however, that the root requirement of due process requires only that an individual be given an opportunity for a hearing before he is deprived of any significant property interest. Firman v. Department of State, State Board of Medicine, 697 A.2d 291 (Pa.Cmwlth.1997), appeal denied, 550 Pa. 722, 706 A.2d 1215 (1998). Unless a legitimate property interest is infringed, the lack of notice and a hearing are of no constitutional moment. Lee.

BPOA contends that the Board had no obligation to afford Wolfe a hearing on his petition for modification because, in issuing the order denying his request, the Board did not further infringe upon his right to practice. The 1993 and 1995 adjudications deprived Wolfe of his right to exercise his property interest in his license for specific periods of time and, by virtue of the Board’s April 16, 1999 order at issue, Wolfe had no less of a right to practice after the order than he had before issuance of the order. BPOA argues that, since the constitutional obligation to serve notice and hold a hearing is only triggered by the taking of an action which results in the infringement of a legitimate, protected right, the Board was not required to hold a hearing on Wolfe’s petition.

In addition, BPOA contends that even though Wolfe desires that his license be reinstated before the minimum time fixed in the 1995 adjudication, he does not have a legitimate claim of entitlement to reinstatement since his right to practice was legitimately stopped for a finite period of time.

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745 A.2d 121, 2000 Pa. Commw. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfe-v-state-board-of-osteopathic-medicine-pacommwct-2000.