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In Re Jon Porter

November 9, 2012


On Appeal from Medical Practice Board Patricia A. King, M.D., Chair

The opinion of the court was delivered by: Reiber, C.J.

In re Jon Porter, M.D. (2012-045)

2012 VT 97

Supreme Court

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. REIBER, C.J. This case asks us to determine whether a physician can be held answerable as a matter of professional discipline solely on the basis of a physicians assistant's (PA) unprofessional acts. The Board of Medical Practice concluded that it was not required to find Dr. Jon Porter guilty of unprofessional conduct based solely on the acts of a PA whom he supervised. We affirm.

¶ 2. Dr. Porter, director of the University of Vermont Center for Health and Well-being, was a supervising physician for a PA from 1996 through 2009. Sometime in 2009, nursing students conducted a study of drug diversion at UVM, wherein a student interviewee commented that the PA was a source of controlled substances. Dr. Porter learned of the comment and began investigating the PA using electronic medical records. He discovered that the PA was an outlier in prescribing opiates and other controlled substances, and concluded that the PA had engaged in improper prescribing practice. Dr. Porter filed a complaint with the Board.

¶ 3. In August 2009, the Board began investigating the PA. The PA admitted to improperly prescribing opiate medications, and stipulated that his actions constituted professional negligence and unprofessional conduct. The Board approved the stipulation and consent and disciplined the PA.

¶ 4. In December 2010, the State filed a specification of charges against Dr. Porter. Of central relevance to the present case, the State alleged in count I that under 26 V.S.A. § 1739 Dr. Porter was "legally liable [as a matter of professional discipline] for the inappropriate and non-compliant prescribing activities of [the PA], who acted as Respondent's agent." Attributing the PA's actions to the doctor, the State alleged that the doctor had vicariously engaged in unprofessional conduct, and was therefore subject to disciplinary action. The specification included four other counts related generally to the doctor's supervision of the PA. Count II alleged that Dr. Porter's supervision of the PA failed to conform to essential standards of acceptable and prevailing practice and constituted unprofessional conduct; count III alleged that Dr. Porter failed to adequately monitor the PA's practice under Board Rule 5.1 and that Dr. Porter was "liable for the actions of [the PA] by law"; count IV alleged that Dr. Porter failed to craft policy to provide meaningful review of the PA's practice under Board Rule 7.1(c); and count V alleged that Dr. Porter failed to regularly conduct retrospective review of the PA's charts under Board Rule 7.5. Dr. Porter moved to dismiss counts I and III, arguing that § 1739 makes a supervising physician "legally liable" to an injured third person for the tortious conduct of his or her PA, but does not contemplate holding a supervising physician vicariously guilty in professional disciplinary proceedings of unprofessional acts committed by a PA on a theory of "strict liability." The Board denied the motion.

¶ 5. A three-person committee held a hearing in September 2011 and issued a proposed decision and order in December 2011. It recommended that the Board find that Dr. Porter committed unprofessional conduct as alleged in count I but recommended not sanctioning Dr. Porter. The committee reasoned that the PA's acts were Dr. Porter's acts because 26 V.S.A. § 1739(a) imposes an agent-principal relationship, and thus Dr. Porter was guilty, once the guilt of the PA was established, of unprofessional conduct. The committee found that the PA's prescription of controlled substances constituted a "failure to conform to the essential standards of acceptable and prevailing practice," in violation of 26 V.S.A. § 1354(b)(2), and that, "[s]ince the acts of the agent . . . are the acts of his principal," Dr. Porter was therefore guilty of violating the § 1354.*fn1 The committee recommended dismissing counts II, IV, and V because Dr. Porter properly supervised the PA and met or exceeded applicable standards of acceptable and prevailing practice. The committee also recommended dismissing count III because it had already recommended finding Dr. Porter "legally liable" for the same conduct in count I. Both parties filed objections to the committee's proposed decision.

¶ 6. The Board held a hearing in January 2012 to determine whether to accept, modify, or reject the committee's proposed decision and order. The Board rejected the committee's recommendation regarding count I, stating that it "is not required by law to find that Dr. Porter is guilty of unprofessional conduct for improperly prescribing 'schedule drugs' based solely on the fact that the PA [], who Dr. Porter was supervising, engaged in this conduct." It reasoned that where Dr. Porter did not engage in the conduct, was not aware of it, and could not reasonably be expected to be aware of it, the law does not require him to be found guilty of unprofessional conduct for the acts of the PA. The Board adopted the committee's findings and conclusions as to counts II through V, and dismissed all of the charges.

¶ 7. On appeal, the parties disagree about the appropriate standard of review. The State argues for de novo review, framing the appeal as the purely legal question of whether 26 V.S.A. § 1739(a) imputes to supervising physicians a PA's unprofessional conduct for purposes of professional discipline on a theory of strict vicarious liability. Dr. Porter, meanwhile, argues that we should review the Board's conclusion that he did not violate § 1354(b)(2) for abuse of discretion and, further, that we must accord deference to the Board's interpretation of § 1739 as the agency charged with the statute's execution.

¶ 8. We defer to an administrative agency's interpretation "of statutory provisions that are within its particular area of expertise." In re Prof'll Nurses Serv. Inc., 164 Vt. 529, 532, 671 A.2d 1289, 1291 (1996). Where the Board evaluating the professional's conduct is composed of "a group of his peers," we afford the Board's decision additional deference. Braun v. Bd. of Dental Exam'rs, 167 Vt. 110, 114, 702 A.2d 124, 126 (1997). "Our standard of review is based, however, on the nature of the Board's expertise and the appropriateness of paying deference to it." In re Investigation of Nov. 15, 1990 Rate Design Filing of Vt. Power Exch., 159 Vt. 168, 179, 617 A.2d 418, 424 (1992). The Board, composed of nine licensed physicians, one physician assistant, one podiatrist, and six persons not associated with the medical field, 26 V.S.A. § 1351(a), is "broadly empowered to investigate and adjudicate charges of unprofessional conduct by licensees, to issue licenses, and to suspend, revoke, or refuse to issue licenses based upon a finding of unprofessional conduct," In re Chase, 2009 VT 94, ¶ 6, 186 Vt. 355, 987 A.2d 924 (quotation omitted). The Board, "as an administrative body, has only such powers as are expressly conferred upon it by the Legislature, together with such incidental powers expressly granted or necessarily implied as are necessary to the full exercise of those granted." Perry v. Vt. Med. Practice Bd., 169 Vt. 399, 403, 737 A.2d 900, 903 (1999) (quotation omitted).

¶ 9. The determination of the meaning of "legally liable" and the legal bounds of the agent-principal relationship of a physician and his or her PA under 26 V.S.A. § 1739, however, falls outside of the Board's expertise and the scope of its statutorily proscribed powers. Thus, we give no deference to the Board's determination of whether Dr. Porter is answerable as a matter of professional discipline for his PA's unprofessional acts under § 1739. Cf. In re Tariff Filing of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 19-20, 769 A.2d 668, 673 (2001) ("The applicability of judicially-created doctrines such as claim preclusion or issue preclusion in rate cases is not an issue within the Board's expertise of utility law. . . . Thus, we give no deference to the Board's decisions on claim preclusion and issue preclusion."). We do, however, defer to the Board's assessment of Dr. Porter's professional conduct under § 1354. See In re Chase, 2009 ...

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