Clifford Berken, M.D. v. Jewel Mullen, M.D. et al. (2014)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The plaintiff, Clifford A. Berken, brought this action of mandamus on January 18, 2013, against both Jewel Mullen, commissioner of the department of public health and the department of public health (the department) seeking a reinstatement of his medical license.   His complaint alleged as follows:

1. Plaintiff ․ is presently, and was at all times material hereto, a citizen of the State of Connecticut ․

2. The Defendant, Connecticut Department of Public Health (“the Department”) is presently, and was at all times material hereto, a state agency organized and existing under the laws of the State of Connecticut, located at 410 Capitol Avenue, Hartford, CT 06134.

3. The Defendant, Jewel Mullen, M.D., M.P.H., M.P.A. (“Commissioner”) is presently, and was at all times material hereto, the Commissioner of the Department.

4. The Defendants are the agency and commissioner empowered under Connecticut General Statutes to review and decide licensing applications.

5. Dr. Berken's Connecticut license was last renewed in December of 2008.

6. On April 21, 2009, an Interim Consent Order was ordered and accepted by the Connecticut Medical Examining Board (“Board”).   In it, Dr. Berken agreed to “refrain from practice as a physician and surgeon until such time as [the] petition is resolved.”

7. More than a year later, at the insistence of the Department, Dr. Berken was forced to submit to a hearing process which was ostensibly for the sole purpose of securing guidance and direction from the Board as to the appropriateness and the conditions under which Dr. Berken would be permitted to return to practice.

8. In association with this process, the Department issued a Statement of Charges seeking revocation or other orders from the Board.   The Notice of Hearing was issued on September 23, 2010, and on October 26, 2010 a hearing was held before a duly authorized panel of the Board in consideration of the Department's requested adverse licensure action.

9. Under these circumstances, Dr. Berken reasonably believed that his license was in abeyance and there was no need to submit a renewal application until the final decision was issued by the Board.

10. Moreover, in 2009, Dr. Berken had never received notice from the Department that his license would be lapsing on January 1, 2010, and directing him to renew the license even though his license was not active.   Nor did Dr. Berken receive notice of the need to renew at any other point between then and the present.

11. On March 21, 2011, the Board issued its Proposed Memorandum of Decision, to which the Department objected.   However, the Department never raised the issue of the impending expired status of Dr. Berken's licensure which, pursuant to Connecticut General Statutes § 19a–88(f), was due to officially expire on March 31, 2011.

12. While Dr. Berken supported the Board's proposed decision, he was unaware of any requirement by the Department for him to file a licensure renewal application while his license was inactive and he was restricted, pending the final decision.   He was not provided with notification of any such expectation by the Department.

13. On April 21, 2011, following an April 19, 2011 meeting in which several amendments to the Proposed Memorandum of Decision were discussed and decided upon, the Board issued its decision in which Dr. Berken's license to practice medicine in Connecticut was to be reinstated and subject to certain restrictions in such a manner specified therein.

14. At no point during or after the April 19, 2011 hearing was Dr. Berken notified by the Department that he was required to renew his license which would be lapsing.   Likewise, the Board's decision contained language that implied his license was still in effect in April of 2011 and that his license had not expired 21 days beforehand.

15. Shortly after the Board's decision was handed down, Dr. Berken filed an Application for Renewal of his license with the Department's Practitioner Licensing and Investigations Section.

16. Dr. Berken's application was denied and he was notified for the first time that his license had lapsed.   He was not notified that his license had not only lapsed, but also expired due to the passage of 90 days from its lapse.

17. On May 20, 2011, nearly two months after Dr. Berken's license expired, the Department filed its Request for Reconsideration of the Memorandum of Decision (“Request”) seeking to reverse the Board's approval of Dr. Berken's reinstatement of his medical license and return to practice under his medical license restricted by terms and conditions to be imposed for a 5–year period of probation.

18. This Request marked the first time the Department ever raised the issue of the lapsed status of Dr. Berken's license as a barrier to implementation of the Board's decision to reinstate Dr. Berken's medical license.

19. The Department's Request to reverse the final decision and deny Dr. Berken a medical license was subsequently denied at the June 21, 2011 Board meeting and the parties were notified on June 23, 2011.

20. In denying the Request, the Board expressly rejected the Defendant's position in its Request that “[Dr. Berken's] license cannot be placed on probation by the Board as [Dr. Berken] does not presently possess an active license to practice under any circumstances.”   The Board indicated its intent to permit Dr. Berken to resume practice under his license, subject only to the terms and conditions set forth in its April 21, 2011 decision.

21. In fact, the minutes from the June 21, 2011 Board meeting indicate that they were treating Dr. Berken's license as expired and that he should be allowed to request reinstatement.

22. As clearly reflected in the minutes, the Board indicated its intent to review any such application:  “Should respondent request reinstatement the Memorandum of Decision would be reviewed to determine if any of its terms need modification as a condition of re-licensure.”

23. Dr. Berken promptly contacted the Department to commence the reinstatement process and was advised that he could not apply for reinstatement until a pending matter involving his New York license had been resolved.

24. On January 25, 2012, a hearing was held before the New York State Board for Professional Medical Conduct (“NY Board”) on Dr. Berken's licensure status.

25. On March 28, 2012, Dr. Berken's N.Y. license was revoked by the N.Y. Board.

26. On July 27, 2012, Dr. Berken's appeal from that decision failed and the revocation of his New York license was affirmed despite substantial evidence furnished by Dr. Berken that the Board had misapprehended compelling evidence and was mistaken about critical facts.

27. On or about September 21, 2012, Dr. Berken filed his Application for Reinstatement of Lapsed License (“Application”) with the Department in accordance with Regs. Conn. State Agencies § 19a–14–1 et seq.   Specifically, as requested in the instructions on the Application, his Application and checks for $565.00 and $4.75 were sent to the following address:  Department of Public Health, Physician Licensure–Remittance Unit, 410 Capitol Ave., MS# 12MQA, P.O. Box 34308, Hartford, CT 06134–0308.   As requested on the Department's website, most supporting documents were sent to the following address:  Connecticut Department of Public Health, Physician Licensure, 410 Capitol Ave., MS# 12 APP, P.O. Box 340308, Hartford, CT 06134.

28. Concurrently with Dr. Berken's Application, he submitted two affidavits and an accompanying cover letter in support of his application for reinstatement.   For some unknown reason, these documents were neither received by nor considered by the Department's Licensing Section at the time of its review and consideration of his Application.

* * * *

30. These supporting documents significantly and materially affect the merits of Dr. Berken's Application in that they provide information regarding:  (a) Dr. Berken's psychiatric, psychological and family counseling, and associated improvement in mental health, (b) his fitness to return safely to the practice of medicine, (c) an improvement in Dr. Berken's home conditions, and (d) the improper investigation and consideration of facts by the New York Department of Health.

31. In accordance with Regs. Conn. State Agencies § 19a–14–1, which requires an application of this kind be reviewed by the appropriate “Board or Commission,” the Department's website properly reads:  “Applicants for reinstatement who have not been in the active, clinical practice of medicine for longer than six (6) months are reviewed by the Connecticut Medical Examining Board.”

32. The website reflects a long-standing and unanimously accepted procedure for dealing with any such application for reinstatement.

33. Dr. Berken reasonably expected that his Application would be forwarded to the Board for consideration and approval, not only in light of the Board's prior decision directing reinstatement in which it indicated its intent to review any such application, but also because Dr. Berken had been out of active practice for more than six (6) months and met the Department's criteria as definitively stated on its website.

34. However, Dr. Berken's Application was not transmitted to the Board or ever reviewed by the Board.   Instead, an incomplete portion of the Application was reviewed, in error, by the Department's Licensing Section and the Application was summarily rejected on October 25, 2012.

35. On November 21, 2012, Dr. Berken moved the Department to reopen its proceedings on the consideration of his Application to allow him an opportunity to (a) present new evidence that he provided to the Department prior to its consideration of his Application that materially affected the merits of his Application, but which was not included or reviewed by the Department prior to its denial, (b) present such evidence to the proper authority—the Board, and (c) correct certain evidence previously admitted into the record relating to the chronology of events surrounding his Application.

36. On December 3, 2012, Matthew S. Antonetti, Esq., Principal Attorney for the Department, filed an Objection to Dr. Berken's motion, arguing that “the Board does not possess jurisdiction to intercede in the Department's licensure reinstatement determinations” and that the Board should therefore “decline Dr. Berken's request to reopen the Department's consideration on his application for licensure reinstatement as it simply is not within the Board's purview to do so.”

37. On December 14, 2012, the Commissioner issued her Ruling on Dr. Berken's Motion, sustaining the Department's objection.

38. To this day, the proper authority—the Board—still has not reviewed Dr. Berken's Application for Reinstatement, as the Department has prevented it from reaching the Board.

39. The Department's denial of Dr. Berken's November 21, 2012 Motion to Reopen is tantamount to the Board granting the Department permission to unilaterally usurp the Board's own authority and violate its own final decisions and orders.

In his prayer for relief, the plaintiff asked as follows:

1. The court grant a Writ of Mandamus directing the Department and its Commissioner to renew Dr. Berken's medical license in accordance with the Connecticut Medical Examining Board's prior decisions.

2. In the alternative, the Court grant a Writ of Mandamus directing the Department and its Commissioner to permit the proper authority, the Connecticut Medical Examining Board, to review Dr. Berken's Application for Reinstatement of Lapsed License.

The department subsequently moved to dismiss the plaintiff's complaint for lack of subject matter jurisdiction as non-justiciable.   It claimed that the court was not, on the facts alleged, able to provide practical relief to the plaintiff through the issuance of a writ of mandamus.

On August 28, 2013, the court heard oral argument on the department's motion to dismiss.   The court stated that it would allow the plaintiff to supplement his opposition to the motion to dismiss, that the plaintiff contended raised factual issues regarding the motion.   The court allowed this filing in keeping with Garden Mutual Benefit Association v. Levy, 37 Conn.Sup. 790, 792, 437 A.2d 141 (1981);  Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988) (on motion to dismiss, evidentiary hearing appropriate where opposition to motion raises factual issues).

The court stated that, based on his representations, the plaintiff should file the following regarding his claim arising from § 19a–88:  Either (1) a timely license renewal form, or (2) a statement from either the department or the board that the plaintiff need not reapply for a license during the interim consent period, or (3) a final decision or administrative ruling in a prior case that held that a license renewal need not be filed during an interim consent.   In addition the plaintiff was directed to file any prior ruling of the department or board regarding reinstatement of void licenses arising from Regulations §§ 19a–14–1 and 19a–14–4.

Subsequently, on November 28, 2013, in an attempt to comply with the court's August 28, 2013 order, the plaintiff filed a supplemental brief with the following attachments:

A. The April 8, 2009 Interim Consent Order regarding plaintiff's practice of medicine entered into between the plaintiff and the department.

B. An affidavit of the plaintiff, originally filed with the plaintiff's initial response to the department's motion in which he stated that he “believed” that his need to file a renewal of his license was held in abeyance by the Interim Consent Order.

C. A letter of October 8, 2013 from the plaintiff to the department requesting a copy of his file, and answers to interrogatories provided by the department on November 8, 2013.

D. A March 5, 2011 notice sent to the plaintiff by New York State Board of Medical Conduct referencing a hearing to be held on June 22, 2011.

E. A newspaper article regarding a physician on probation with the department who received an additional sanction.

F. A consent order with the department entered by another physician, who had been sanctioned in Florida.

G. A list of physicians, including the plaintiff, who filed reinstatement applications.

H. A June 10, 2011 letter to the plaintiff rejecting his reinstatement application.

I. At the oral argument before this court on January 29, 2014, the plaintiff submitted a letter from his psychiatrist.   This letter stated that the plaintiff had been hospitalized for a near terminal illness on March 28, 2011.   The department also introduced a statement in its possession written by the plaintiff stating that he was hospitalized “[o]ne week after being granted permission to resume the practice of medicine with restrictions as enumerated by the board ․” The board rendered its final decision on April 21, 2011.   (Complaint, paragraph 13.)

On January 13, 2014, the department responded, making the following observations:

1. The plaintiff's exhibits do not include a license renewal for 2010.

2. The plaintiff's exhibits do not include a statement from either the department or the board to him that the interim consent agreement affected his duty under § 19a–88(b) to renew his medical license in the month of his birth or three months thereafter.

3. The plaintiff's exhibits do not include a prior interpretation or ruling from either the department or the board regarding § 19a–88(b) and interim consent agreements.

4. The plaintiff's exhibits do not include a ruling regarding Regulation §§ 19a–14–1 and 19a–14–4 where another state has imposed discipline and a physician is seeking reinstatement of his license.

5. The exhibits of the plaintiff that show a newspaper article and a consent order are not relevant as these did not involve void licenses.

6. Two notices were sent to the plaintiff regarding his 2010 renewal, but were returned by the post office.   The notices were sent to the last known business address for the plaintiff in Greenwich.¹

7. As a matter of law, the board does not have a role in license reinstatement;  this is a task assigned to the department.

8. The plaintiff signed off on the Interim Consent Agreement on April 21, 2009.   He made timely application for renewal of his 2009 license on February 25, 2010, within three months of his birth month.

9. The plaintiff sent the department reinstatement applications on May 23, 2011 and October 1, 2012.

The court reviewed the supplemental briefs and on January 15, 2014 notified the parties that it would not hold an evidentiary hearing.   Based on Garden Mutual and Barde, the allegations of the complaint and the additional affidavits and exhibits do not require the court to make findings regarding jurisdictional facts.   An oral argument was subsequently held on January 29, 2014.   The court now proceeds to consider, on this record, whether the department's motion to dismiss should be granted.

An action for mandamus is subject to dismissal when the court cannot provide practical relief to the plaintiff through its issuance.   In such a case, the court lacks subject matter jurisdiction and granting a motion to dismiss is proper.  Pellegrino v. O'Neill, 193 Conn. 670, 674, 480 A.2d 476 (1984).   “If the right sought to be enforced [by mandamus] is or has become a mere abstract right, the enforcement of which will be of no substantial or practical benefit to the petitioner, the writ will not issue though otherwise the applicant would be entitled to it.”  (Citation omitted.)  Pape v. McKinney, 170 Conn. 588, 596, 368 A.2d 28 (1976).   See also Reynolds v. St. John, judicial district of Waterbury, Docket No. CV 13–6020842 (October 15, 2013) [57 Conn. L. Rptr. 10] (dismissal of mandamus action for lack of availability of practical relief).

The plaintiff first claims that he is entitled to a mandamus requiring the department to issue him a renewal license due to prior decisions reached by the board.²  The statute in question, § 19a–88, provides in part in subsection (b) that a person holding a medical license must register yearly in the month of such person's birth with the department on a prescribed form.   Subsection (f) further states:  “Any person ․ [who] fails to comply with the provisions of this section shall be notified by the department that such person's ․ license ․ shall become void ninety days after the time for its renewal under this section unless it is so renewed.   Any such license shall become void upon the expiration of such ninety-day period.”

None of the allegations of the complaint, the documents filed by the plaintiff as exhibits, nor the affidavits of the parties show that the plaintiff submitted his 2010 renewal either during the month of his birthday (December) nor within three months thereafter.   Therefore by the plain language of § 19a–88(f), the plaintiff's license expired on the last day of March 2011.   See also Reardon v. Dept. of Public Health and Addiction Services, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 94–0705233 (September 22, 1994) [12 Conn. L. Rptr. 477] (physician stipulated to missing the renewal deadline and admitted that his license was void).

The plaintiff argues that he was under the “belief” that the Interim Consent Order obviated the filing requirement of § 19a–88.   The court must, however, construe the applicability of the statute on the explicit basis of the language used in the text.   See Fairchild Heights Residents Association, Inc. v. Fairchild Heights, Inc., 310 Conn. 797, 809 (2014).   The court granted the plaintiff the right to submit additional proof by way of documentation that the department or the board had found the statute inapplicable in his own case or in prior cases.   No documentation has been tendered by the plaintiff, however.

Nor does the statute afford the plaintiff an equitable waiver in the case of illness.³  The court further notes that it is undisputed that the plaintiff consistently filed a renewal with the department and last did so in February 2010.   This filing was after the Interim Consent Order of April 21, 2009.   Nor may the court alter the effect of § 19a–88(f) on the plaintiff's license just because the department did not raise the issue of a void license until May 2011, after the plaintiff was placed on probation by the board.⁴

The plaintiff also claims that the department was required by § 19a–88(f), when he did not file by December, to give notice that he had three months to file or his license would be void.   The record shows that the department sent two such notices to the plaintiff's former business office, but that they were returned as undeliverable.   The department claims that it sent a third notice that a former business manager forwarded to the plaintiff's personal residence.

Even assuming that the department did not fully comply with the notice requirement, § 19a–88(f) is not mandatory, but directory.  “It is well established that the legislature's use of the word shall suggests a mandatory command ․ Nevertheless, we also have recognized that the word shall is not [necessarily] dispositive on the issue of whether a statute is mandatory ․ [T]o determine whether a statute's provisions are mandatory [the court has] traditionally looked beyond the use of the word shall and examined the statute's essential purpose ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  State v. Banks, 143 Conn.App. 485, 504, 123 A.2d 764 (2013).   See also Weems v. Citigroup, Inc., 289 Conn. 769, 791–92, 961 A.2d 349 (2008) (indication of “directory” is lack of “negative words” or “absence of penalty”).

In a case where notice was found directory, our Supreme Court stated that the plaintiff had “sufficient information to fulfill the purpose of the statutorily required notice” from other sources.  United Illuminating Co. v. New Haven, 240 Conn. 422, 467, 692 A.2d 742 (1997).   Here, as indicated above, the plaintiff had sent the department his timely renewal for many years, including one in February 2010.   The department tried in good faith to reach the plaintiff in the three-month period ending in March 2011.   In addition, in the absence of a penalty for failure to give notice under § 19a–88(f), the legislature could hardly have contemplated that the plaintiff's license would remain in effect on a failure to give notice.

The court also rejects the plaintiff's argument that § 19a–14a preserved his license from becoming void under § 19a–88.   Section 19a–14a allows the department to continue disciplinary proceedings against a physician who does not have a current license with the department.   Section 19a–14a was enacted to reverse Stern v. Medical Examining Board, 208 Conn. 492, 545 A.2d 1080 (1988) that prohibited the board from disciplining a physician whose license had expired.   This section does not support an argument that the plaintiff's license did not become void when he failed to renew it.

The plaintiff alternatively seeks a mandamus to direct the department to refer his application for reinstatement to the board for review.   The plaintiff has made two applications for reinstatement, one dated May 23, 2011 and another dated September 27, 2012.   The first was rejected by the department because the New York proceedings were still pending.   See § 19a–14(a)(6)(C).  The second was rejected because the New York board had revoked the plaintiff's license.

Regulation § 19a–14–1 allows a physician with a void license to apply to the department for reinstatement.   The board is to assist the department in making a recommendation to the department.  Regulation § 19a–14–4 states, however, that the department may not grant a reinstatement if the physician has a complaint in another state “until such a time as it is resolved in favor of the candidate.”   In this case, New York has revoked the plaintiff's license and until such time as that matter is resolved through the New York authorities, the department may not process the plaintiff's reinstatement application.

The two cases involving other physicians relied on by the plaintiff are not applicable as they did not involve physicians with void licenses.   The plaintiff does not meet the requirement at this time for reinstatement and the department properly so found.   See Moon Hee Yoo v. Addiss, Superior Court, judicial district of Hartford/New Britain, Docket No. 91–03974555 (June 16, 1992) [6 Conn. L. Rptr. 572].

Since the record supports the finding that no practical relief may be afforded the plaintiff by the granting of a writ of mandamus, the motion to dismiss is granted.

Henry S. Cohn, Judge

FOOTNOTES

FN1. At oral argument on January 29, 2014, the plaintiff claimed to have informed the department that he had left this business address in 2008 and was practicing from his home in Stamford.   The department's attorney stated that she understood that three notices had been sent out during the three-month period post December 2010 to the plaintiff's prior business address in Greenwich.   The department introduced an exhibit showing that two notices were returned as undeliverable on February 25, 2011 and March 22, 2011.   The department presented an affidavit from the office manager of the plaintiff's former office in Greenwich that she forwarded mail directed to the plaintiff to his Stamford home.   The department presumes that this notice reached the plaintiff in a timely manner..  FN1. At oral argument on January 29, 2014, the plaintiff claimed to have informed the department that he had left this business address in 2008 and was practicing from his home in Stamford.   The department's attorney stated that she understood that three notices had been sent out during the three-month period post December 2010 to the plaintiff's prior business address in Greenwich.   The department introduced an exhibit showing that two notices were returned as undeliverable on February 25, 2011 and March 22, 2011.   The department presented an affidavit from the office manager of the plaintiff's former office in Greenwich that she forwarded mail directed to the plaintiff to his Stamford home.   The department presumes that this notice reached the plaintiff in a timely manner.

FN2. In this claim for relief, the plaintiff is unclear whether he means board decisions in prior cases or in his case.   The court does not find the distinction relevant in its analysis..  FN2. In this claim for relief, the plaintiff is unclear whether he means board decisions in prior cases or in his case.   The court does not find the distinction relevant in its analysis.

FN3. The court notes that the plaintiff's doctor's letter states that he was seriously ill in late March 2011, while the plaintiff's own statement to the department was that the illness occurred in late April 2011..  FN3. The court notes that the plaintiff's doctor's letter states that he was seriously ill in late March 2011, while the plaintiff's own statement to the department was that the illness occurred in late April 2011.

FN4. The plaintiff alleges that the board commented on the department's statement at the meeting in May 2011 by stating that it would review an application by the plaintiff for reinstatement after a void license.   But the board does not decide on reinstatement of licenses and did not know of the pending New York matter..  FN4. The plaintiff alleges that the board commented on the department's statement at the meeting in May 2011 by stating that it would review an application by the plaintiff for reinstatement after a void license.   But the board does not decide on reinstatement of licenses and did not know of the pending New York matter.

Cohn, Henry S., J.