2012 VT 97


In re Jon Porter, M.D. (2012-045)
 
2012 VT 97
 
[Filed 9-Nov-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 97

 

No. 2012-045

 

In re Jon Porter, M.D.


Supreme Court


 


 


 


On Appeal from


 


Medical Practice Board


 


 


 


June Term, 2012


 


 


 


 


Patricia
  A. King, M.D., Chair


 

William H. Sorrell, Attorney General, and Kurt A. Kuehl,
Assistant Attorney General,
  Montpelier, for Petitioner-Appellant.
 
S. Crocker Bennett, II and David M. Pocius of Paul Frank +
Collins P.C., Burlington, for 
  Respondent-Appellee.
 
Angela R. Clark and Ritchie E. Berger of  Dinse, Knapp
& McAndrew, P.C., Burlington, for 
  Amicus Curiae Fletcher Allen Health Care.
 
O. Whitman Smith of Mickenberg, Dunn, Lachs & Smith,
PLC, Burlington, for Amici Curiae
  Community Health Centers of Burlington, Inc. and
Vermont Council of Developmental and 
  Mental Health Services, Inc.
 
 
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
Wellbeing, 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.[1] 
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 VT 94, ¶ 6 (“[W]e defer to
determinations that require the Board to apply its expertise or weigh whether
certain behavior violated the standard of care pertaining to unprofessional
conduct under the statute over which it has authority.”).
¶ 10.        
Section 1739(a) provides that “[t]he supervising physician delegating
activities to a physician assistant shall be legally liable for such activities
of the physician assistant, and the physician assistant shall in this
relationship be the physician’s agent.”  Our principal goal when
interpreting a statute “is to effectuate the intent of the Legislature.”  Tarrant
v. Dep’t of Taxes, 169 Vt. 189, 197, 733 A.2d
733, 739 (1999).  We first look to the plain language of the
statute.  Id.  If the meaning is clear, we enforce the statute
according to its terms without resort to statutory construction.  Id. 
Only if the language is unclear and ambiguous do we resort to legislative
history to determine the Legislature’s intent.  In re Margaret Susan P., 169 Vt.
252, 262, 733 A.2d 38, 46 (1999).
¶ 11.        
The plain meaning of the phrase “legally liable” does not encompass
responsibility for violations of professional obligations.  Black’s Law
Dictionary defines “legal liability” as “[t]he quality or state of being
legally obligated or accountable; legal responsibility to another or to
society, enforceable by civil remedy or criminal punishment.”  Black’s Law
Dictionary 998 (9th ed. 2009).  To illustrate, Black’s uses the example of
“liability for injuries caused by negligence.”  Id.  Being
legally obligated or accountable denotes some obligation that is grounded in
law, such as a statutory, common-law, or regulatory provision that enforces
another party’s rights or imposes a legal penalty.  That concept is
distinct from being accountable from the standpoint of professional discipline
under the laws enacted by the Legislature.  Such obligations derive from
standards and rules that govern a specific profession and provide a structure
for regulating conduct within that profession.  The remedy for a violation
of a professional obligation is disciplinary in nature; it is not the
imposition of “a civil remedy or criminal punishment.”  Id. 
Tellingly, the State conceded at oral argument that it could not find any
setting in which a disciplinary action was described as imposition of
liability.  Thus, in the context of professional oversight it is
inaccurate to say that one may be “legally liable” for a violation of a professional
obligation because the two mechanisms are procedurally and substantively
different.
¶ 12.        
An exploration of the words “legally liable” in context fairly negates
the State’s reading because our statutes implicitly distinguish between legal liability,
typically at issue in a civil action or for a monetary penalty, and
unprofessional conduct at issue in a professional licensing disciplinary
proceeding.  In Title 26, the Legislature uses “liability,” “legal
liability,” and “legally liable” to refer to: the legal responsibility of a
licensed supervising professional for “all negligent or wrongful acts or
omissions” of a temporary licensee, 26 V.S.A. §§ 378, 1391, responsibility
for damages in a civil action, id. §§ 1317, 1355, 1582, 2404,
responsibility in malpractice cases, id. § 1368, responsibility to
pay a fine or penalty, id. §§ 1742, 2864, “monetary liability,” id.
§ 2404, and “tort liability,” id. § 2405.  When the
Legislature refers to responsibility for unprofessional conduct, however, it uses
the word “guilty.”  See id. §§ 78, 376, 1361, 1659, 1719,
1737, 2121, 2431, 2859, 3016a.  In other words, one is generally “liable”
in the civil context for damages or for a monetary penalty, while one is
“guilty” of engaging in unprofessional conduct.  Thus, while the doctor
may have legal liability for his agents’ acts of professional negligence, the
State’s argument that one may be “legally liable” for his or her agents’
unprofessional conduct is unavailing. The language consistently used by the Legislature
does not square with such an interpretation.
¶ 13.        
Indeed, in the same title, the Legislature has distinguished between
legal liability and professional responsibility.  In § 2086(a) of
title 26, the Legislature has provided that a physical therapist is
“professionally responsible and legally liable for all aspects of the physical
therapy care of each of his or her patients.”  Because we presume that the
Legislature chooses its words advisedly, Robes v. Town of Hartford, 161
Vt. 187, 193, 636 A.2d 342, 347 (1993), we conclude that the Legislature
knowingly distinguished between the principles of legal liability and
professional responsibility because the two concepts are discrete.  One is
used in the context of liability, while the other is used in the context of
professional disciplinary schemes.  That the Legislature used the phrase
“legally liable” in § 1739, and chose not to use the phrase
“professionally responsible” in addition to or instead of “legally liable”
suggests that § 1739 encompasses only the concept of civil liability, and
does not render a supervising physician vicariously answerable or guilty for
the unprofessional acts of his or her PA simply on the basis of their
relationship.  Consequently, the State’s interpretation of “legally
liable” stretches those words beyond their plain meaning, and is therefore
unsustainable.
¶ 14.        
That the statute also provides that the PA is the supervising
physician’s agent is is of no moment.  In general, agency theory applies
in tort or contract cases, not professional responsibility actions.  See,
e.g., Douglas v. O’Connell, 139 Vt. 427, 429, 429 A.2d 1310, 1311 (1981)
(contract liability); Greenough v. U.S. Life Ins. Co. of City of N.Y.,
96 Vt. 47, _­_, 117 A. 332, 334 (1922) (tort liability); see generally
Restatement (Third) of Agency §§ 6.01-03 (2006) (describing when principal
and agent are parties to contract entered into by agent); Restatement (Third)
of Agency § 7.03 (describing when principal may be held liable in tort for
agent’s actions). It would thus be anomalous to conclude that a supervising
physician may be held professionally responsible for the unprofessional acts
committed by a PA under an agency theory.  To the contrary, it makes sense
that, in designating the PA the agent of the supervising physician, the
Legislature sought to affirm the path for a tort plaintiff to recover from the
supervising physician where the PA has committed a tortious act.  
¶ 15.        
The State’s contention that In re Desautels Real Estate, Inc.,
142 Vt. 326, 457 A.2d 1361 (1982) supports its interpretation of § 1739 is
similarly unavailing.  In Desautels, the Vermont Real Estate
Commission found the principal broker for a real estate corporation
“vicariously liable” for the bad faith and untrustworthy conduct of two
salespeople, and suspended his license.  Id. at 332, 457 A.2d at
1363.  Because the salespeople could be licensed only when employed by a
licensed broker, and the license terminated when the employment relationship
ceased, the Court concluded that the doctrine of vicarious liability applied to
the relationship between the broker and the salespeople.  Id. at
337, 457 A.2d at 1366 (citing 26 V.S.A. §§ 2211, 2292(b)).  Contrary
to the State’s assertion, the real estate and medical licensing regimes are too
dissimilar to draw any appropriate parallels.  In Desautels, the
real estate corporation could not have had a corporate license without
designating an individual to serve as a broker under the license.  Id.
at 336, 457 A.2d at 1366 (interpreting a subsequently amended version of 26
V.S.A. § 2291).  There, only that named licensee—the principal
broker—could make offers, sell real estate, or negotiate a sale, under the
provisions of the then applicable statutory language.  See id.
 Thus, the salespeople were acting under the principal broker’s license,
and the principal broker was the “alter ego” of the real estate
corporation.  Desautels, 142 Vt. at 337, 457 A.2d at 1366. Here,
where the relationships are more closely defined by statute, there is no such
relationship.  There the professional regulatory structure was dim; here
it is robust.  Nor did Desautels involve interpretation of anything
akin to § 1739.  The Desautels Court was not determining whether a
principal broker could be “legally liable” for the acts of the salespersons,
unlike in this case in which we are interpreting a statute that makes a
supervising physician “legally liable” for the acts of a PA.
¶ 16.        
Having concluded that § 1739 does not subject a supervising physician to
discipline solely for a PA’s unprofessional acts on a theory of strict
vicarious liability, we must also analyze whether such responsibility may be
premised on § 1354.  The Board, concluded 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[m] Dr. Porter was supervising, engaged in this conduct,” and dismissed the
charges.  While we agree with this result, we conclude that it would not,
in fact, have been within the Board’s authority to discipline Dr. Porter under
§ 1354 based solely upon the PA’s unprofessional acts.  The Board has
only those powers expressly conferred upon it by the Legislature, in addition
to those incidental powers necessary to exercise those granted.  Perry,
169 Vt. at 403, 737 A.2d at 903.  Section 1354—titled “[u]nprofessional
conduct”—sets out a detailed list of thirty-nine bases under which a physician
may be held professionally responsible.  The list does not include
misconduct of a PA, but focuses instead on a physician’s acts, namely actions
that bear on a physician’s fitness and ability to practice in the state. 
The regulatory scheme does, however, provide standards to ensure adequate
supervision and discipline for doctors who fall short.  See, e.g., 26
V.S.A. § 1354(b)(2).  Here, the Board found that Dr. Porter did not
fail to follow the progress of the PA’s patients, that his process for review
exceeded that specified in the scope of practice approved by the Board, and
that his review of PA-generated charts met the requisite standard of
care.  Any finding of unprofessional conduct in this case would
necessarily have been based upon the PA’s conduct alone because the Board found
that Dr. Porter did not fail to meet the standards of care, and in one case
exceeded that required by the Board.  Because § 1354 does not include
a basis for disciplining a physician based solely upon the acts of a PA, the
Board quite simply would not have had the authority to sanction Dr. Porter for
the PA’s acts under that statute.
¶ 17.        
In sum, § 1739 does not make supervising physicians answerable as a
matter of professional discipline solely for the unprofessional acts of PAs
they supervise because the statute does not pertain to professional
responsibility.  Furthermore, § 1354 provides no basis for
disciplining a supervising physician whose PA has committed an unprofessional
act where the supervising physician has met or exceeded all standards of care.[2]
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1]  Section 1354(b)(2) provides: “The board may also find that failure to practice
competently by reason of any cause on a single occasion or on multiple
occasions constitutes unprofessional conduct. Failure to practice competently
includes, as determined by the board: . . . (2)
failure to conform to the essential standards of acceptable and prevailing
practice.”


[2] 
Because we have rejected the State’s arguments regarding § 1739, we do not
reach Dr. Porter’s argument that the State’s interpretation violates Dr.
Porter’s due process rights.



