Jyoji Bristol v. Connecticut Medical Examining Board et al. (2014)

MEMORANDUM OF DECISION

This is an administrative appeal brought by the plaintiff, Jyoji Bristol, challenging a decision of the Connecticut Medical Examining Board (“Board”) to revoke his license to practice medicine in Connecticut.   The Board revoked the plaintiff's license after finding, among other things, that the plaintiff had improperly engaged in an improper personal and sexual relationship with a patient.   On appeal, the plaintiff, who is self-represented in this court, raises a plethora of claims the overwhelming majority of which challenge the Board's factual findings and determinations regarding the credibility of witnesses.   For the reasons set forth below, the court concludes that plaintiff's claims are without merit.

I. FACTUAL AND PROCEDURAL HISTORY

The record discloses the following facts.   On November 2, 2009, the Department of Public Health (“DPH”) filed a statement of charges against the plaintiff and a motion for summary suspension of his medical license.   The plaintiff, prior to the suspension and revocation of his license in this case, had been engaged in the general practice of internal medicine in Connecticut.   The motion for summary suspension was brought by the DPH on information and belief that the plaintiff's continued practice of medicine constituted a clear and immediate danger to his patients and the public health and safety.   The charges arise out of the plaintiff's medical care of seven patients, and alleged various breaches of the standard of care with respect to each of those patients.   The Board granted, on November 17, 2009, the motion for summary suspension ¹ pending a final determination by the Board of the validity of the allegations contained in the Statement of Charges.

The Board held an evidentiary hearing on the charges on twelve various dates beginning on June 7, 2010 and concluding on July 28, 2011.   The plaintiff was represented by counsel throughout the entire proceeding.   Both the DPH and the plaintiff presented evidence, cross examined witnesses and made legal arguments regarding the sufficiency of the evidence.

The evidentiary hearings were conducted before a three-member panel ² of the Board that included Douglas Fellows, MD, Maxine Borghesi, DVM and Joseph Kaplowe, PA. On January 17, 2012, the panel issued a proposed final decision concluding that the DPH had demonstrated by a fair preponderance of the evidence many, but not all, of the charges against the plaintiff.

On March 20, 2012, the Board issued a final decision adopting the factual and legal conclusions contained in the proposed final decision.   In the final decision, the Board concluded that the plaintiff's continued practice of medicine poses a danger to the public, and that his conduct:  (1) demonstrates “a profound misunderstanding of the practice of medicine”;  (2) shows a “lack of respect for female patients”;  (3) is “illegal, negligent and incompetent”;  (4) violates the standard of care;  and (5) transgresses personal and sexual boundaries.   As a result, the Board revoked the plaintiff's medical license, and imposed civil penalties in the amount of $3,000.

On May 1, 2012, the plaintiff filed this timely appeal of the Board's decision pursuant to General Statutes § 4–183.   The plaintiff is aggrieved by the decision of the Board.

The Board made lengthy and detailed findings of fact.   They are summarized below and organized by the patient to whom they pertain.

A. Patient “JM”

JM began treating with the plaintiff in August 2008 at an urgent care facility for cystitis and back pain.   Prior to beginning treatment with the plaintiff, she had managed the pain with moderate use of opioids.   During the course of JM's treatment with the plaintiff, the plaintiff failed to document adequate clinical justification for the course of treatment he prescribed, and did not document the dose and frequency of the medication he prescribed to her.   The plaintiff kept some of the prescription records relating to JM in the glove box of his car.

The plaintiff failed to adequately monitor JM's use and medical reaction to the opioids he prescribed her and did not perform physical examinations of the patient even though he was prescribing opioids on a weekly basis.   Soon after beginning treatment with him, the plaintiff prescribed to JM increased dosages and types of opioids.

Although JM was displaying addictive behaviors, such as passing out while eating, losing an extreme amount of weight and burning herself with cigarettes, he continued to prescribe opioids for her.   In fact, the plaintiff would personally drive JM to the pharmacy to get refills of her prescriptions, despite admitting to JM that JM's mother had contacted him to express concern regarding JM's excessive opioid use.

The plaintiff engaged in the course of treatment despite the fact the he knew (1) JM was addicted to opioids, (2) her continued use of opioids interfered with the detoxification and rehabilitation treatment she was receiving from other providers and (3) her ongoing use of the drugs interfered with her ability to maintain legal custody of her children.   Indeed, in March 2009, JM lost legal custody of her children because of her drug use.

On at least two occasions, JM and the plaintiff engaged in sexual intercourse.   JM believed that if she did not have sex with the plaintiff that he would not continue to prescribe opioids for her.

In March 2009, the plaintiff was prescribing JM, on a weekly basis, 270 pills per week of Oxycontin, Xanax, and Roxicodone.   JM's drug problem became so severe that she was twice forced to enter an inpatient detox facility.   When she left the rehabilitation facilities, at least once against medical advice, the plaintiff immediately began to prescribe JM opioids again despite knowing that the she had just been receiving in patient care for opioid dependence.

From September 15, 2008 to December 15, 2008, the plaintiff sent JM approximately 235 text messages and made approximately 284 cell phone calls to her.   Many of the text messages and telephone calls were sent or made between 9:00 pm and 6:00 am.

In February 2009, the plaintiff sent JM sexually explicit text messages.   In at least one of these messages, he told JM that he was going to withhold her medication and make her his sex slave.

B. Patient “SB”

On August 29, 2008, SB, a twenty-two-year-old female, went to the plaintiff's urgent care facility complaining of depression, chills, back pain, swollen glands and other symptoms.   The plaintiff visually examined her groin, and manually examined and touched her breasts, buttocks and inner thighs without clinical justification.

The plaintiff also ordered a lumbar x-ray, which was reported as negative before SB left, and a urine dipstick, which only showed a trace of blood in her urine.   The plaintiff did not order a urine culture.   Despite the minimal examination, the plaintiff diagnosed her with a urinary tract infection.   The plaintiff attributed her back pain to the alleged infection and prescribed her an antibiotic (Cipro), an opioid (Oxycontin) and an antidepressant (Lexapro).   The plaintiff failed to document in SB's medical records the clinical findings or justifications for the diagnosis and the prescriptions.

C. Patient “NP”

NP, a female, worked as a phlebotomist at the radiology center next to the plaintiff's urgent care facility.   On June 22, 2008, NP went to the urgent care facility complaining of a urinary tract infection.   A urine dipstick test was performed.   The plaintiff reviewed the results with NP and stated to her “Holy fuck, you have a lot of blood in your urine.   What cha (sic) been doing?”   The plaintiff then told NP to get on the exam table and performed an exam with a stethoscope under her shirt.   The plaintiff told NP that the exam was necessary because he needed a baseline.   NP informed him that she did not want or need the baseline exam because she was uncomfortable with the vulgarity used by the plaintiff, the examining room door was closed, she was alone with the plaintiff and she believed her baseline measures were already in her medical record because her primary care doctor owned the facility.

On another occasion, the plaintiff crossed NP's personal and sexual boundaries when he went into her workspace, and told her she looked sexy in the scrubs she was wearing.

D. Patient “MG”

In the spring of 2008, the plaintiff treated MG, a forty-three-year-old male with back pain and disc disease.   Although the evidence presented at the hearing was insufficient to prove that the plaintiff provided MG inappropriate care or improperly prescribed him opioids, the plaintiff did fail to maintain adequate prescriptions records in the patient's chart.

E. Patient “MD”

On July 31, 2008, the plaintiff treated a female patient, MD, for nausea.   While giving her a shot in the buttocks to treat the nausea, the plaintiff violated MD's personal and sexual boundaries by making sexual comments about her appearance such as “you've got to show a little more” and “you have a nice ass.”

F. Patient “CR”

In August 2008, the plaintiff treated CR, a sixty-five-year-old female, who complained of an elevated heart rate and lack of sleep due to intolerance to a C–Pap machine.³  The plaintiff violated the standard of care by failing to perform an EKG on the patient.

G. Patients “DK” and “MG”

The plaintiff violated the standard of care by failing to perform a knee exam on MG, a sixteen-year-old soccer player complaining of knee pain, and on DK, a fifty-year-old male, who also presented with knee pain.

II. ANALYSIS

The plaintiff, who is now self-represented, has filed a lengthy and often rambling brief challenging the decision of the Board on numerous grounds.   At oral argument, this court invited the plaintiff to identify his three or four strongest claims of error.   Each of these claims is discussed below.   In addition, the court has attempted to cull from the plaintiff's brief a few additional claims that he appears to emphasize.   Finally, although the precise nature of the plaintiff's claims is often difficult to discern, the court has attempted to group and discuss them for organization and clarity.

The gravamen of the plaintiff's claims are as follows:  (1) the Board improperly failed to require that the charges against him be proven by clear and convincing evidence;  (2) the Board failed to decide his case in a timely manner;  (3) Dr. Fellows, a Board and panel member, was biased against him;  (4) the panel improperly admitted evidence impeaching the plaintiff's witnesses;  (5) the panel improperly records of telephone calls and texts between the plaintiff and JM;  (6) the Board's decision to revoke his license is not supported by substantial evidence in the record;  and (7) the panel that rendered the proposed final decision was unlawfully constituted.   The court addresses each of these claims in turn.⁴

A. The Board properly imposed the preponderance of the evidence standard.

The plaintiff first claims that the Board improperly failed to require that the charges against him be proven by clear and convincing evidence.   This claim is without merit.

The Board required DPH to prove the charges by the preponderance of the evidence standard.   After the Board issued its decision in this case and while this appeal has been pending, our Supreme Court issued its decision in Jones v. Connecticut Medical Examining Board, 309 Conn. 727, 72 A.3d 1034 (2013).   In Jones, the court squarely held that the proper standard of proof in a physician disciplinary proceeding is the preponderance of the evidence standard rather than the more rigorous standard of clear and convincing evidence.   See id., 739.   The Jones decision, therefore, is dispositive of this issue and the plaintiff cannot prevail on his contention that the Board applied an incorrect standard.

B. The plaintiff is not entitled to reversal on his claim that the Board's decision was untimely.

The plaintiff next claims that the decision of the Board must be reversed because it was untimely.   Specifically, he relies upon the fact that over two years passed from the time the statement of charges was filed against him to the time that the Board rendered its final decision in this case.   He also asserts that he was prejudiced by this lengthy period.   The court is not persuaded.

General Statutes § 20–8a(g) provides in relevant part:  “The board shall refer all statements of charges filed with the board by the department ․ to a medical hearing panel within sixty days of the receipt of charges.   The time period may be extended for good cause by the board in a duly recorded vote.   The panel shall conduct a hearing in accordance with the provisions of [the UAPA] and the regulations adopted by the Commissioner of Public Health concerning contested cases, except that the panel shall file a proposed final decision with the board not later than one hundred twenty days after the receipt of the issuance of the notice of hearing by the board.   The time period ․ may be extended for good cause by the board in a duly recorded vote.”  (Emphasis added.)

The plaintiff's brief does not indicate (1) whether the Board granted itself or the panel extensions of either of these statutory deadlines, (2) the length of any extension granted, (3) the identity of the party requesting the continuances, and (4) whether there was good cause to grant the continuances.   In fact, the court's independent review of the record reveals that the plaintiff's counsel sought continuances on repeated occasions, most of which were granted to accommodate counsel's trial schedule in unrelated cases.   Continuances were also sought and granted to accommodate the plaintiff's mental health and other medical needs.

It is not the court's responsibility to comb the record for the plaintiff or to invent arguments on his behalf.  “It is well settled that [w]e are not required to review claims that are inadequately briefed ․ We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ․ [F]or this court judiciously and efficiently to consider claims of error raised on appeal ․ the parties must clearly and fully set forth their arguments in their briefs.   We do not reverse the judgment ․ on the basis of challenges to its rulings that have not been adequately briefed ․ The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited ․ [A]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed ․” (Internal quotation marks omitted.)   Nowacki v. Nowacki, 129 Conn.App. 157, 163–64, 20 A.3d 702 (2011).   “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law ․ Self-represented parties are not afforded a lesser standard of compliance, and [a]lthough we are solicitous of the rights of pro se litigants ․ [s]uch a litigant is bound by the same rules ․ and procedure as those qualified to practice law.”  (Internal quotation marks omitted.)  In re Emile L., 126 Conn.App. 283, 285, n.3, 11 A.3d 1117 (2011).   Accordingly, the court concludes that this claim is inadequately briefed, and therefore waived.

Even if this court were to reach this claim, it still remains fatally flawed for several reasons.   First, assuming without deciding that the Board did not strictly comply with the time provisions of General Statutes § 20–8a(g), the plaintiff had a statutory remedy to which he did not avail himself.  General Statutes § 4–180(b) provides that if any agency fails to proceed with a case with reasonable dispatch, a party “may apply to the superior court ․ for an order requiring the agency to render a decision forthwith.”   This plaintiff made no such application.   See Pet v. Department of Health Services, 228 Conn. 651, 674, 638 A.2d 6 (1994) (“It is fatal to the plaintiff's claim of a due process violation that he failed to utilize [General Statutes § 4–180(b) ] to compel a prompt agency decision”).

Second, assuming again that the Board did not strictly comply with the statutory periods, the court concludes that the time periods are directory, not mandatory.   Whether the time limitations imposed by the statutes are mandatory in nature is a question of statutory interpretation.   A court approaches this question according to well-established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the agency enacting the regulation.   See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 270, 777 A.2d 645 (2001).

“In seeking to discern that intent, we look to the words of the [regulation] itself, to the ․ history and circumstances surrounding its enactment, to the ․ policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)  State v. Spears, 234 Conn. 78, 87, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S.Ct. 565, 133 L.Ed.2d 490 (1995).

“The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ․ If it is a matter of substance, the statutory provision is mandatory.   If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.”  (Internal quotation marks omitted.)  Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 268 (2001).   In addition, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute or regulation should be construed as directory.   See, e.g., Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 446, 685 A.2d 670 (1996).

Applying these principles, this court concludes that the time limitations are directory in nature.   The purpose of the provision is to secure order, system and dispatch of the proceeding, and the time periods are not the essence of the thing to be accomplished.   The essence of the thing to be accomplished is the rendering of a fair decision in physician discipline cases and the time periods have been imposed by the legislature to encourage their resolution in as prompt a manner as circumstances dictate.   Additionally, the legislature chose not to include any negative words that would invalidate the agency's action if it failed to comply.

Finally, the plaintiff cannot establish that he was prejudiced by any delay.   Although the proceedings were protracted, the Board was faced with serious charges involving numerous patients and complicated medical questions involving the appropriate standard of care.   The plaintiff and his counsel were responsible for much, if not all, of the delay by repeatedly seeking continuances of the hearing.   For these reasons, the plaintiff's claim of untimeliness fails.

C. The plaintiff's claim of bias is without merit.

The plaintiff asserts that the decision of the Board must be reversed because Dr. Douglas Fellows, who participated in this case as a member of the panel that conducted the evidentiary hearing and as a member of the Board that issued the final decision, was biased and prejudiced against him.   Specifically, the plaintiff contends that Dr. Fellows demonstrated bias because he:  (1) participated in the decision to summarily suspend the plaintiff's medical license, as a member of the panel that conducted the evidentiary hearing, and as a member of the Board that issued the final decision;  (2) engaged in ex-parte communications with the staff attorney representing the DPH;  (3) argued with the plaintiff's witnesses;  and (4) made evidentiary rulings that were not in favor of the plaintiff.   This claim is without merit for several reasons.

Before addressing these specific claims, it is important to emphasize that “[t]he applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification ․ The mere appearance of bias that might disqualify a judge will not disqualify an [administrative board member] ․ Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased ․ To overcome the presumption, the plaintiff ․ must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable ․ The plaintiff has the burden of establishing a disqualifying interest.”  (Internal quotation marks omitted.)   Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009).

The plaintiff has fallen far short of meeting this burden.   First, one of the specific claims of bias were raised before the agency.  “A claim of bias must be raised in a timely manner.   The failure to raise a claim of disqualification with reasonable promptness after learning the ground for such a claim ordinarily constitutes a waiver thereof.  Henderson v. [Dept.] of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987).   One court has noted that a challenge to [an adjudicator] for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification ․ To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts ․” (Citation marks omitted;  internal quotation marks omitted.)   Moraski v. Connecticut Board of Examiners of Embalmers and Funeral Directors, 291 Conn. 242, 262.   Here, all of the alleged facts or instances of bias were known or discoverable by the plaintiff while this case was pending before the agency below.   The plaintiff's failure to raise a claim of bias before the agency and to establish the facts necessary to support it is fatal to his claim on appeal.

Second, even if the court were to reach the merits of this claim, it must conclude that the plaintiff has fallen far short of establishing actual bias.   The plaintiff has not cited to any legal authority that bars a board member who participates in a decision to summarily suspend a license from participating as an adjudicator in a subsequent hearing on the merits of the charges.   Indeed, in many instances, adjudicators, including judges, make preliminary determinations in a case such as “probable cause to arrest,” or a “likelihood of success on the merits,” and then later preside over the same case at trial.   In those circumstances, courts presume, absent some showing to the contrary, that the finder of fact is able to disregard what he or she has previously learned about the case and judge the facts as they are disclosed at trial.   See Elf v. Department of Public Health, 66 Conn.App. 410, 426–27, 784 A.2d 979 (2001).   In other words, courts do not presume bias simply because the adjudicator may have prior knowledge of the case.

Similarly, Dr. Fellows' participation on the panel that conducted the evidentiary hearing and rendered a proposed final decision did not disqualify him from participating in the Board's role in issuing a final decision.   Indeed, such a dual role is specifically contemplated by General Statutes § 20–8a(c)(3), which provides in relevant part:  “Each medical hearing panel shall consist of three members, one of whom shall be a member of the Connecticut Medical Examining Board ․” The statute does not require the member of the Board to recuse him or herself from voting on whether to adopt a proposed final decision rendered by a medical hearing panel.

With respect to the plaintiff's claims of improper ex-parte contacts between Dr. Fellows and the DPH staff attorney, the plaintiff only alleges that these contacts occurred during a few breaks at the hearing and that these discussions were limited to a casual discussion of Dr. Fellows' and the attorneys' mutual experiences in the military.   Despite allegedly witnessing these conversations, the plaintiff did not attempt to make any record before the agency as to the substance and frequency of any such conversations.   The plaintiff has no evidence that any of these discussions involved the merits of the case, and thus cannot meet his burden of demonstrating actual prejudice.

The plaintiff's allegation that Dr. Fellows was biased because he argued with the plaintiff's witnesses is also without merit.   This court has reviewed the extensive record in this case and cannot find any instances in which Dr. Fellows' conduct with any witness establishes actual bias or even an appearance of bias.   Instead, the only “evidence” the plaintiff presents that Dr. Fellows allegedly badgered his witnesses is his bald assertion at oral argument in this court that his witnesses later told him that they believed Dr. Fellows had been hostile to them.   Even if Dr. Fellows had been impatient with a few of the plaintiff's witnesses, such impatience falls far short of demonstrating actual bias.

Finally, the plaintiff's assertion that Dr. Fellows was biased because he issued evidentiary rulings that were adverse to him is frivolous.   As the Appellate Court has held, the mere fact that an adjudicator makes adverse rulings or findings against a party does not establish bias or demonstrate that the adjudicator had prejudged the facts.  Elf v. Department of Public Health, 66 Conn.App. 410, 426–27, 784 A.2d 979 (2001).   Indeed, the plaintiff's claims of bias ring particularly hollow in light of the fact that the panel found that DPH had failed to establish a number of the charges that it had brought against him.   Accordingly, the plaintiff cannot prevail on his bias claims.

D. The panel properly admitted evidence impeaching the plaintiff's witnesses.

The plaintiff next asserts that the panel improperly permitted DPH to impeach his witnesses by admitting certain time cards of the employees who worked at the plaintiff's medical office.   The court disagrees.

The following facts are relevant to this claim.   At the hearing, SB testified that on August 29, 2008, the plaintiff visually examined her groin, touched her breasts, buttocks and inner thighs.   The Board subsequently concluded that this was done without clinical justification.   The plaintiff contested this testimony through his own testimony and by calling Carmen Ortiz and Kimberly Hannigan as witnesses.   These witnesses testified that the plaintiff could not have engaged in the conduct testified about by SB because they were present at the plaintiff's office that day and that the plaintiff was never alone with SB. In response to their testimony, the DPH offered time records of the employees who were working at the clinic that day as impeachment evidence to show that Ortiz and Hannigan were not working on the day SB was examined by the plaintiff.

The plaintiff contends that the panel should not have admitted the time records because other evidence tended to show that Ortiz and Hannigan were “externs” and not employees, and that the medical practice for which the plaintiff worked had destroyed the time cards for the externs.   This claim is without merit.

“[A]dministrative tribunals are not strictly bound by the rules of evidence and that they may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.”   (Internal quotation marks omitted.)  O'Sullivan v. DelPonte, 27 Conn.App. 377, 381–82, 606 A.2d 43 (1992).  “In contested cases [before administrative agencies]:  (1) Any oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence ․” General Statutes § 4–178.

“The erroneous admission of evidence will not invalidate an administrative order unless substantial prejudice is affirmatively shown ․ The burden is on the plaintiff to prove that the evidentiary ruling of an administrative hearing officer is arbitrary, illegal[,] or an abuse of discretion.”  Griffin v. Muzio, 10 Conn.App. 90, 94, 521 A.2d 607, 609 (1987), cert. denied, 203 Conn. 805, 525 A.2d 520 (1987).

It was within the sound discretion of the panel to admit the time records because they tended to show that the employees' testimony should not be credited because Ortiz and Hannigan were not present on the day of the incident with SB. To the extent that the plaintiff offered evidence that there was a legitimate reason as to why the time records may not have reflected the presence of Ortiz and Hannigan at the clinic on August 29, 2008, such surrebutal evidence simply affected the weight the panel, in its discretion, could chose to give the time records.   Indeed, the panel heard testimony from Carmen Ortiz herself, who testified that she was working as a paid receptionist on the day in question, and thus the plaintiff's argument regarding Ortiz's status as an unpaid extern was not persuasive.   Accordingly, the plaintiff's claim regarding the admissibility of the time records must fail.

E. The panel properly admitted text and phone records.

The plaintiff next asserts that the panel improperly admitted records of telephone call and text messages made or sent between the plaintiff and JM. Although the plaintiff at oral argument appeared to concede that he and JM had exchanged text messages at various times, he asserts that the text messages that were of a sexual nature were not properly authenticated as being from him and that his phone had been stolen from him by JM during the time the explicit text messages were sent.   This evidentiary claim also fails.

The following facts are relevant to this claim.   The DPH subpoenaed the plaintiff's phone and text message history and such records were admitted into evidence.   These records do not contain the actual content of the text messages but did establish, in conjunction with other testimony (including JM's), both the plaintiff's and JM's phone number.   The plaintiff does not appear to contest the authenticity of these records.   As noted above, these records showed that in a three-month period from September 15, 2008 to December 15, 2008, the plaintiff sent JM approximately 235 text messages and made approximately 284 cell phone calls to her.   Many of the text messages and telephone calls were sent or made between 9:00 pm and 6:00 am.

The DPH offered the specific content of some of the text messages as Exhibit 23 in the form of emails received by DPH from JM's brother that contained the content of text messages as well the number from which the messages were received (860–461–8713).   As part of the process of authenticating Exhibit 23, JM testified that her phone number is 860–461–8713.   She also testified that she had shown her brother her phone and displayed for him the text messages she had received from the plaintiff.   JM testified that she knew that the text messages were from the plaintiff because (1) his name and number were stored in her phone and (2) she knew from the content of the message that it must have been from him.   After showing her brother the text messages, the texts were forwarded to her brother's phone.   Her brother subsequently forwarded by e-mail those messages to a DPH investigator, who then printed the emails containing the content of the text messages.   Exhibit 23 is the series of emails that were sent to a DPH investigator by JM's brother.   JM's mother also testified that she observed the text messages on JM's phone and that her son had obtained them from JM's phone and forwarded them to DPH.

Based on this testimony, the specific content of the text messages, and the plaintiff's own phone records that demonstrated that he had been sending texts to JM's phone at 860–461–8713, the panel concluded that the content of the messages had been sufficiently authenticated as having been sent from the plaintiff.   The panel also specifically concluded that the plaintiff's claim that JM had stolen the phone and sent the messages to himself lacked credibility, particularly in light of the fact that during the period in which his phone was allegedly stolen, the plaintiff continued to pay his cellular bill for the phone.

The evidentiary standards for authentication of evidence are well-established, at least with respect to cases in which the Code of Evidence typically applies.  “The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims to be.”  Code of Evidence § 9–1(a).   Authentication is a question of fact “preliminary to admissibility of evidence.”  Code of Evidence § 1–1(d)(2).  “[C]ourts are not bound by the Code in determining preliminary questions of fact.”  Code of Evidence § 1–3(a), commentary.   In other words, “[i]n making such determinations, the judge is not bound by the rules of evidence ․ and may hear any relevant evidence, including reliable hearsay.”   Tait & Prescott, TAIT'S HANDBOOK OF CONNECTICUT EVIDENCE (4th Ed.) § 1.25.2, at p. 67.

It is not necessary, however, for this court to decide whether the text messages would have been properly authenticated under the Code of Evidence.   Evidence in administrative proceedings does not have to be authenticated to the same standard as in court proceedings to which the Code of Evidence applies.   As noted above, administrative tribunals are not strictly bound by the rules of evidence and they may consider exhibits that would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.   O'Sullivan v. DelPonte, 27 Conn.App. 377, 381–82, 606 A.2d 43 (1992).   General Statutes § 4–178 provides that in contested cases before an agency any oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence.

“Authentication is a necessary preliminary to the introduction of most writings in evidence.   In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence.  [T]he showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege.   Rather, there need only be a prima facie showing of authenticity to the court.   Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the [finder of fact], which will ultimately determine its authenticity.”  (Internal quotation marks omitted.)  State v. Colon, 272 Conn. 106, 188–89, 864 A.2d 666 (2004).  “An electronic document may ․ be authenticated by traditional means such as ․ circumstantial evidence of ‘distinctive characteristics' in the document that identify the author.”  State v. Eleck, 130 Conn.App. 632, 640, 23 A.3d 818, cert. granted, 302 Conn. 945, 30 A.3d 2 (2011).   Both courts ⁵ and administrative tribunals may consider hearsay in determining the preliminary question of authentication.

Exhibit 23 easily meets this relaxed standard.   The testimony of JM was more than sufficient to establish that JM received text messages from a phone number she knew to belong to the plaintiff and that the content of the messages, in light of the history of dealings between them, was consistent with the interactions.   In addition, the plaintiff's own records demonstrated a practice of sending JM text messages to her phone.   Finally, a sufficient chain of custody was established to show how the content of those messages was obtained by the DPH. The plaintiff's incredible assertions about the theft of his phone at most were relevant to the weight to be given the messages but did not undermine their admissibility.   Accordingly, this claim fails.

F. The Board's decision is supported by substantial evidence.

The plaintiff contends that the decision of the Board must be reversed because its findings that he violated the standard of care in his treatment of numerous patients and that he improperly crossed the personal and sexual boundaries of several of his female patients is not supported by substantial evidence in the record.   This claim is without merit.

The plaintiff brings this appeal pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq.  “It is well established that [j]udicial review of [an administrative agency's] action is governed by the [UAPA] ․ and the scope of that review is very restricted ․ With regard to questions of fact, it is neither the function of the trial court nor of [an appellate court] to retry the case or to substitute its judgment for that of the administrative agency ․” (Internal quotation marks omitted.)   Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010).  “Our review of an agency's factual determination is constrained by General Statutes § 4–183(j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.   The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ․ clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record ․ This limited standard of review dictates that, with regard to questions of fact, it is neither the function of the trial court nor of [an appellate court] to retry the case or to substitute its judgment for that of the administrative agency ․ An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole ․ Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review ․ The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record.”  (Internal quotation marks omitted.)  Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 503–04, 832 A.2d 660 (2003).

“It is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness' testimony ․ Additionally, [a]n administrative agency is not required to believe any witness, even an expert ․ Nor is an agency required to use in any particular fashion any of the materials presented to it as long as the conduct of the hearing is fundamentally fair ․ Questions of whether to believe or to disbelieve a competent witness are beyond our review.   As a reviewing court, we may not retry the case or pass on the credibility of witnesses ․ We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.”  (Citations omitted;  internal quotation marks omitted.)  Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008).

There was substantial evidence in the record to support each of the findings of misconduct made by the Board.   Each of the patients testified as to the plaintiff's actions while they were his patient.   The witnesses' testimony included detailed descriptions of instances in which the plaintiff improperly transgressed personal and sexual boundaries of the patient, including the plaintiff touching intimate parts without clinical justification, making inappropriate sexual comments and threatening to withhold medication if his sexual needs were not met.   The Board specifically found these witnesses to be credible.   The Board specifically declined to credit the plaintiff's testimony regarding these patients.

The record also contains sufficient testimony and documents regarding the medical needs of the patients, including their symptoms and complaints, and the plaintiff's treatment, or lack thereof, of their conditions.   The Board's conclusions regarding the plaintiff's breaches of the standard of care were supported by the expert testimony of Dr. Perrin, a full-time family practice clinician, and Dr. John Scarfo, a full-time emergency room physician, both of whom were called by the DPH. Dr. Perrin and Dr. Scarfo opined about the standard of care regarding the various medical issues raised by the patients, including, but not limited to, proper pain management techniques, the importance of the proper maintenance of medical records, and the need to respect the personal and sexual boundaries of patients.⁶

The Board was also free to rely upon its own expertise regarding medical issues, including the appropriate standard of care.   See General Statutes § 4–178(8) (“[T]he agency's experience, technical competence, and specialized knowledge may be used in the evaluation of the evidence”);  Pet v. Department of Health Services, 228 Conn. 651, 668;  Jaffe v. Department of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949);  Spitz v. Board of Examiners of Psychologists, 127 Conn.App. 108, 117 n.12, 12 A.3d 1080 (2011).

The plaintiff asserts that the Board's findings were not supported by substantial evidence because he presented evidence that contradicted the evidence introduced by DPH and relied upon by the Board.   This claim is without merit.   A reviewing court “must take into account contradictory evidence in the record ․ but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.”  (Internal quotation marks omitted.)   Pet v. Department of Health Services, 228 Conn. 651, 668.   Each of the Board's findings with respect to each of the patients discussed above is supported by specific references to the administrative record.   In every instance, the Board's finding is supported by testimony or exhibits that the Board was free to credit.

The plaintiff also asserts that the Board should not have credited DPH's witnesses but should have credited his testimony.   As noted above, however, the tribunal was free to make its own determination regarding the credibility of all of the witnesses.   The Board was free to credit all, some or none of a witness's testimony.  Goldstar, supra, 288 Conn. 830.   This court cannot substitute its own judgment as to these credibility determinations.

In sum, this court has spent many hours reviewing the extensive record in this case.   In light of the well-established rules regarding determination of the credibility of witnesses, this court must conclude that there is substantial evidence to support all of the Board's factual conclusions.   Additionally, in light of the severity and number of the charges proven, the Board did not abuse its discretion by determining that the plaintiff's medical license should be revoked and that it should impose civil monetary penalties.

G. The panel was lawfully constituted.

The plaintiff also asserts that the panel that rendered the proposed final decision in this case was unlawfully constituted.   Specifically, he argues that none of the panel members had expertise in the clinical practice of medicine, pediatrics, pain management or medical charting.   Presumably, the plaintiff believes that this alleged fact rendered the panel incapable of rendering a fair decision in this case in light of the medical issues and determinations regarding the standard of care regarding presented by his case.   This claim is without merit.

First, the plaintiff did not raise this claim before the agency.   Thus, the record is barren regarding the particular experiences of the three-member panel and this court is left with the plaintiff's unsupported assumptions regarding the clinical experiences and expertise of two members of the panel.   Under these circumstances, this claim is unreviewable.

Second, even if the court were to reach the merits of this claim, he cannot demonstrate that the makeup of the panel prejudiced his rights.   Indeed, the legislature has specifically provided in General Statutes § 20–8a(c)(2) that the list of individuals from which medical hearing panels may be drawn include physicians who specialize or practice in a number of different specialties, an osteopath, a physician assistant, and individuals with no medical training (public members).   Subsection (3) then provides that a medical hearing panel assigned to a particular case shall consist of three members:  “one of whom shall be a member of the Connecticut Medical Examining Board, one of whom shall be a physician or physician assistant, as appropriate, and one of whom shall be a public member.   The physician and public member may be a member of the Board or a member from the list established pursuant to [subsection (2) ].”

In this case, the membership of the panel was constituted as required by the statute.   Dr. Fellows' participation satisfied the requirement that one member be a physician or physician assistant and the requirement that one member be a member of the Board.   Joseph Kaplowe also served on the panel and is a physician assistant.   Maxine Borghesi's designation satisfied the statute's requirement that one participant be a member of the public.   Accordingly, the panel was constituted precisely as the legislature intended.

Finally, the fact that none of these individuals allegedly practices the precise medical specialties as the plaintiff has no legal significance.   The panel did not need to rely on its own expertise in deciding the issues in this case.   As noted above, the panel heard testimony from two medical experts who were fully qualified to testify regarding the pertinent medical issues in the case and the appropriate standard of care that the plaintiff was obligated, but failed to meet.   Accordingly, this claim is without merit.

III

CONCLUSION

For the reasons set forth above, the court concludes that the decision of the Board should be affirmed in all respects.   Judgment shall enter accordingly.

Hon. Eliot D. Prescott

FOOTNOTES

FN1. Because the plaintiff ultimately received a full evidentiary hearing on the charges against him, any attacks on the summary suspension proceedings are now moot.   See Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 255, 967 A.2d 1199 (2009)..  FN1. Because the plaintiff ultimately received a full evidentiary hearing on the charges against him, any attacks on the summary suspension proceedings are now moot.   See Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 255, 967 A.2d 1199 (2009).

FN2. The panel was constituted pursuant to General Statutes § 20–8a(c)..  FN2. The panel was constituted pursuant to General Statutes § 20–8a(c).

FN3. A C–Pap machine is used to treat sleep apnea..  FN3. A C–Pap machine is used to treat sleep apnea.

FN4. The plaintiff's remaining claims are either inadequately briefed, or having been considered by the court, are without merit and require no further discussion..  FN4. The plaintiff's remaining claims are either inadequately briefed, or having been considered by the court, are without merit and require no further discussion.

FN5. But see Federal Deposit Ins. Corp. v. Keating, 44 Conn.App. 556, 558–59, 690 A.2d 429 (1997);  Central Bank v. Colonial Romanelli Associates, 38 Conn.App. 575, 579–80, 662 A.2d 157 (1995).   These cases are unclear, however, whether the evidence should have been excluded because hearsay was used to authenticate the documents or whether the best evidence rule was applicable.   The better rule is that reliable hearsay may be used to authenticate evidence because authentication is a preliminary issue of fact for the court to decide within the meaning of Code of Evidence §§ 1–1 and 1–3..  FN5. But see Federal Deposit Ins. Corp. v. Keating, 44 Conn.App. 556, 558–59, 690 A.2d 429 (1997);  Central Bank v. Colonial Romanelli Associates, 38 Conn.App. 575, 579–80, 662 A.2d 157 (1995).   These cases are unclear, however, whether the evidence should have been excluded because hearsay was used to authenticate the documents or whether the best evidence rule was applicable.   The better rule is that reliable hearsay may be used to authenticate evidence because authentication is a preliminary issue of fact for the court to decide within the meaning of Code of Evidence §§ 1–1 and 1–3.

FN6. The plaintiff also asserts that the panel improperly precluded from testifying two expert witnesses offered by him, Stephen Link and Sharon Wilhelm.   During oral argument, however, the plaintiff conceded that he had intended to call these “experts” to testify regarding a phone call they allegedly overheard between the plaintiff and a state investigator.   Thus these two witnesses were not truly offered as experts but instead were fact witnesses.   Additionally, the plaintiff had already been permitted to testify about this alleged conversation and therefore testimony by Link and Wilhelm was simply cumulative..  FN6. The plaintiff also asserts that the panel improperly precluded from testifying two expert witnesses offered by him, Stephen Link and Sharon Wilhelm.   During oral argument, however, the plaintiff conceded that he had intended to call these “experts” to testify regarding a phone call they allegedly overheard between the plaintiff and a state investigator.   Thus these two witnesses were not truly offered as experts but instead were fact witnesses.   Additionally, the plaintiff had already been permitted to testify about this alleged conversation and therefore testimony by Link and Wilhelm was simply cumulative.

Prescott, Eliot D., J.