STATE OF MINNESOTA
IN COURT OF APPEALS
Minnesota State Board of Medical Practice,
Filed June 26, 2007
Toussaint, Chief Judge
Stuart T. Williams, Alan C. Eidsness, Henson & Efron, P.A., 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402-4503 (for appellant)
Lori Swanson, Attorney General, John S. Garry, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)
S Y L L A B U S
1. Application of the preponderance of the evidence standard of proof by the Minnesota Board of Medical Practice during temporary physician disciplinary proceedings does not violate the physician’s due process rights.
2. This court will not issue an injunction setting forth the standard of proof to be applied during permanent physician disciplinary proceedings when other administrative remedies are available, unless exhaustion of those remedies would be futile.
3. After temporarily suspending a physician’s medical license, the Minnesota Board of Medical Practice may publish that physician’s name and business address, the nature of the misconduct, and the action taken by the board, under both the Minnesota Government Data Practices Act and the Medical Practice Act.
O P I N I O N
TOUSSAINT, Chief Judge
Appellant Fatih M. Uckun, M.D., challenges procedures followed by respondent Minnesota Board of Medical Practice in temporarily suspending his medical license. The district court granted respondent’s motion to dismiss appellant’s claims and denied appellant’s motion for partial summary judgment on several of his claims. Because (1) appellant’s due process rights were not violated when respondent applied the preponderance of the evidence standard of proof in its proceedings to temporarily suspend appellant’s medical license, (2) appellant failed to exhaust all administrative remedies and did not show that exhaustion of such remedies would be futile, and (3) respondent did not violate the Minnesota Government Data Practices Act or the Medical Practice Act when it published appellant’s temporary suspension order on its website, we affirm.
medical doctor, was licensed in 1993 by respondent to practice medicine and
After a two-year investigation by the Minnesota Attorney General’s Office into patient-care complaints, respondent’s Complaint Review Committee filed a petition in November 2005 seeking to have appellant’s license temporarily suspended. In January 2006, respondent held a hearing on the petition during which appellant was given 20 minutes to make an oral presentation but was not allowed to present live testimony, cross-examine witnesses, or supplement the record. On January 27, 2006, respondent made findings and conclusions and issued an order temporarily suspending appellant’s license pending a final decision after a contested case hearing. Respondent found that appellant’s continued practice would create a serious risk of harm to others. Respondent published the temporary suspension order on its website, including appellant’s name and business address, the nature of the misconduct, and the action taken by respondent.
On February 3, 2006, appellant filed a complaint against respondent in district court, seeking: (1) a declaratory judgment that respondent’s use of the probable cause and/or preponderance of the evidence standards of proof rather than the clear and convincing evidence standard of proof in proceedings to temporarily suspend appellant’s medical license violated his due process rights; (2) an injunction prohibiting respondent from using the probable cause and/or preponderance of the evidence standard in seeking to permanently suspend appellant’s medical license and instead requiring respondent to use the clear and convincing evidence standard of proof in future proceedings, and an injunction ordering respondent to rescind the temporary suspension order and reinstate appellant’s license; (3) a declaratory judgment that respondent’s publication of the temporary suspension order on its website violated both the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. §§ 13.01-.90 (2006), and the Medical Practice Act (MPA), Minn. Stat. §§ 147.001-37 (2006); (4) an injunction prohibiting respondent from publicly disclosing or revealing any disciplinary proceedings related to appellant; and (5) damages, including costs and attorney fees, for violations of the MGDPA and MPA.
Respondent subsequently moved to dismiss the complaint, and appellant moved for partial summary judgment on several claims. The district court issued an order granting respondent’s motion to dismiss and denying appellant’s motion for partial summary judgment. With regard to appellant’s claims that respondent had applied the wrong standard of proof and had improperly published the temporary suspension order, the district court concluded that the complaint did not allege a claim on which relief could be granted.
1. Did respondent violate appellant’s due-process rights by applying the preponderance of the evidence standard of proof in the proceeding to temporarily suspend appellant’s medical license?
2. Did appellant exhaust his administrative remedies, and if not, did appellant show that exhaustion would be futile?
3. Did respondent violate the Minnesota Government Data Practices Act and the Medical Practice Act when it published appellant’s temporary suspension order on its website?
In reviewing cases
dismissed for failure to state a claim on which relief can be granted, the only
question before the reviewing court is whether the complaint sets forth a
legally sufficient claim for relief. Barton v.
Appellant argues that respondent violated his due-process rights by improperly applying the preponderance of the evidence standard of proof in its proceedings to temporarily suspend his medical license rather than applying the clear and convincing evidence standard of proof. We disagree.
Fourteenth Amendment to the United States Constitution and article I, section 7
of the Minnesota Constitution provide that no person shall be deprived of life,
liberty, or property without due process of law. “Procedural due process imposes constraints
on governmental decisions which deprive individuals of ‘liberty’ or ‘property’
interests within the meaning of the Due Process Clause of the Fifth or
Fourteenth Amendment.” Mathews v. Eldridge, 424
Appellant contends that both his property and liberty interests were significantly impacted by respondent’s decision to temporarily suspend his medical license and that application of the three-part Mathews test mandates use of the clear and convincing evidence standard of proof in temporary suspension proceedings. We conclude there is no legal basis to support appellant’s argument because the Mathews factors do not weigh in appellant’s favor, particularly at this stage of the disciplinary proceedings.
With regard to the private interest affected, we recognize that appellant has a significant interest in his medical license and that depriving appellant of such license may result in a monetary loss as well as a loss of professional reputation. Indeed, the Minnesota Supreme Court noted in Wang the seriousness of “attacking a person’s professional and personal reputation and character and seeking to impose disciplinary sanctions,” stating that “in all professional disciplinary matters, the finder of fact, bearing in mind the gravity of the decision to be made, will be persuaded only by evidence with heft.” 441 N.W.2d at 492. But the seriousness of the deprivation here is lessened by the fact that appellant’s license has only been temporarily suspended pending a final disciplinary hearing, and thus appellant has not been permanently deprived of the interest affected.
We also consider
the risk of an erroneous result.
“[P]roceedings that ‘employ imprecise substantive standards that leave
determinations unusually open to subjective values of the judge’ magnify the
risk for erroneous deprivation of private interests.” SooHoo
v. Johnson, __ N.W.2d __, __, 2007 WL 1364749, at *6 (
Finally, Mathews directs us to consider “the
Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.” 424
Therefore, we conclude, after analyzing and balancing the three Mathews factors, that respondent did not violate appellant’s right to due process by utilizing the preponderance of the evidence standard of proof for the temporary suspension of appellant’s medical license.
In support of his
position, appellant also identifies other state courts that have concluded that
due process requires proof by clear and convincing evidence in medical
disciplinary proceedings. See, e.g.,
In re Setliff, 645 N.W.2d 601, 605 (S.D. 2002) (stating that in matters
concerning revocation of professional license, appropriate standard of proof to
be utilized by agency is clear and convincing evidence); Nguyen v. State, Dep’t of Health Med. Quality Assurance Comm’n, 29
P.3d 689, 697 (Wash. 2001) (stating that “constitutional minimum standard of
proof in a professional disciplinary proceeding for a medical doctor must be
something more than a mere preponderance,” and remanding to conduct further
proceedings under clear-and-convincing standard of proof). Other jurisdictions, however, have held that
due process is satisfied in medical disciplinary proceedings by the application
of the preponderance of the evidence standard of proof. See, e.g., N.D. State Bd. of Med. Exam’rs-Investigative
Panel B v. Hsu, 726 N.W.2d 216, 229-30 (N.D. 2007) (applying Mathews and concluding that
preponderance of evidence standard for medical disciplinary proceedings
satisfied due process). We conclude the Hsu court’s reasoning to be more persuasive
because of its similar application of the Mathews
factors and because the decision comports with
For these reasons, we conclude that respondent did not erroneously apply the preponderance of the evidence standard of proof to appellant’s temporary suspension proceedings and therefore the district court did not err in its dismissal of those claims.
Appellant seeks an injunction prohibiting respondent from using the preponderance of the evidence standard of proof and requiring respondent to apply the clear and convincing evidence standard of proof in the disciplinary hearing for a final order on suspension of his medical license. The district court determined that the preponderance of the evidence standard was applicable to both temporary and permanent suspension proceedings and dismissed the request for an injunction.
Respondent argued below and argues on this appeal that appellant’s claim for an injunction is barred by the doctrine of exhaustion of administrative remedies. The district court did not reach the exhaustion issue, having concluded that appellant’s claim failed on the merits. We conclude that appellant has not exhausted available administrative remedies and this court cannot grant the requested relief.
It is a “long-settled rule that no
one is entitled to injunctive protection against the actual or threatened acts
of an administrative agency until” all administrative remedies have been exhausted,
unless exhaustion of administrative remedies will cause “imminent and
irreparable harm.” Thomas v. Ramberg, 240 Minn. 1, 4-5, 60 N.W.2d 18, 20 (1953); see also Amcon
Corp. v. City of
issuing a final order suspending a physician’s license, respondent is required
to schedule a disciplinary hearing under the Administrative Procedure Act
(APA), Minn. Stat. §§ 14.001-.69 (2006). During the disciplinary hearing, physicians
are afforded the opportunity to present witnesses and cross-examine
At the present stage of appellant’s disciplinary proceedings he continues to have the opportunity to argue that any alleged misconduct should be proven by clear and convincing evidence. He may move for relief prior to the hearing, submit written exceptions or oral argument for relief after the ALJ’s report, and file an appeal to this court after respondent issues a final decision. Accordingly, there are additional administrative remedies available to appellant that he has not yet exhausted and injunctive relief would be premature.
appellant contends that it would be futile to argue this issue during the
permanent disciplinary proceedings because respondent has already applied the
lesser preponderance of the evidence standard during appellant’s temporary
suspension proceedings. We
disagree. As respondent notes, the
futility exception only applies when the administrative board has “unequivocally
committed” itself to a position on an issue.
State Bd. of Med. Exam’rs v. Olson,
Appellant argues that respondent violated both the MGDPA and the MPA by publishing the temporary suspension order on its website. Specifically, the temporary suspension order concluded that appellant had:
1. Engaged in advertising that is false or misleading . . . ;
2. Engaged in unethical conduct; conduct likely to deceive, defraud or harm the public, or demonstrating a willful or careless disregard for the health, welfare or safety of a patient; and in medical practice that is professionally incompetent in that it may create unnecessary danger to any patient’s life, health, or safety . . . ; [and]
3. Engaged in unprofessional conduct, including by departing from or failing to conform to the minimal standards of acceptable and prevailing medical practice . . . .
Appellant argues that the order was private and confidential data under the MGDPA and the MPA and thus was barred from disclosure. Respondent contends that the temporary suspension order is classified as public data. The parties dispute the construction to be given to the relevant statutes.
construction is a question of law, which this court reviews de novo.
specifically classifies data generated by a “licensing agency” as “public
data.” Minn. Stat. § 13.41, subd. 5
(2006). This includes “[l]icensing
agency minutes, application data on licenses except nondesignated addresses,
orders for hearing, findings of fact, conclusions of law and specification of
the final disciplinary action contained in the record of the disciplinary
Here, the record indicates that respondent collected data on appellant over a two-year period for purposes of instigating administrative proceedings against him. Thus, the data is classified as confidential under section 13.39, subdivision 2(a). But respondent published the temporary suspension order on its website after specifically finding that appellant’s continued practice posed a serious risk of harm to the public. Accordingly, we conclude that even though the data published by respondent was confidential, respondent was permitted to publish the data so as to promote public health and safety.
Medical Practice Act, Minn. Stat. §§ 147.001-.37 (2006), generally protects
from public disclosure “all communications or information received by or
disclosed to the board relating to any person or matter subject to its
Appellant argues that the phrase “disciplinary measures of any kind” does not include interim disciplinary actions such as a temporary suspension order because the phrase is qualified by the limiting phrase “whether by contested case or by settlement agreement.” Therefore, appellant contends that the language “disciplinary measures of any kind” refers only to either a contested case hearing or a settlement agreement, and any other reading would effectively eliminate the phrase “whether by contested case or by settlement agreement.” We disagree.
a statute, we first look to see whether the statute’s language, on its face, is
clear or ambiguous. A statute is only
ambiguous when the language therein is subject to more than one reasonable
interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (
147.01, subdivision 4(b) is subject to more than one reasonable interpretation,
we first consider the language of the statute itself, giving effect to all of
its provisions. Appellant reads the word
“whether” as a word of limitation. A
number of courts, however, have reasoned that the word “whether,” when preceded
by a general term, is not a word of limitation.
See, e.g., Galbreath v. Gulf Oil Corp., 294 F.
Supp. 817, 824 (D. Ga. 1968) (stating that “[t]he cases hold without exception
that words following ‘whether’ do not restrict the meaning to any following
terms; rather, they enlarge upon it”), aff’d,
413 F.2d 941 (5th Cir. 1969); State ex
rel. Berra v. Sestric, 159 S.W.2d 786, 789 (
We also consider surrounding sections so as to avoid inconsistent interpretations. This interpretation of the statute is also consistent with the MPA mandate that respondent, at least annually, “shall publish and release to the public a description of all disciplinary measures taken by the board. The publication must include, for each disciplinary measure taken, the name and business address of the licensee, the nature of the misconduct, and the disciplinary measure taken by the board.” Minn. Stat. § 147.02, subd. 6 (2006) (emphasis added). No limitation is reasonably read into this requirement to publish the very data appellant seeks to protect. Finally, appellant’s interpretation of section 147.01, subdivision 4, would lead to absurd results because respondent would be prohibited from informing the public of the temporary suspension of a physician’s license, thereby endangering the public. Accordingly, we conclude that the phrase “disciplinary measures of any kind” is not limited to only contested case hearings and settlement agreements, but also includes interim disciplinary actions such as temporary suspension orders.
In sum, we conclude that disclosure of the data was authorized under the MGDPA and the MPA. Respondent found that appellant posed a serious risk to the public and was thereby permitted to make the data accessible to the public under the MGDPA. Under the MPA, the temporary suspension order fell within any disciplinary measure and the order was properly limited in scope. The publication disclosed only the “nature of the misconduct” and a description of “the disciplinary measure taken by the board.” The “nature” of appellant’s misconduct followed the statutory grounds which respondent found appellant had violated and contained no other findings or details. Furthermore, the published order briefly and accurately described the disciplinary measures taken by respondent, and nothing more. Therefore, the district court correctly dismissed appellant’s claim that respondent had improperly published the temporary suspension order for failure to state a claim on which relief can be granted.
We conclude that the district court did not err by granting respondent’s motion to dismiss appellant’s claims. Respondent’s application of the preponderance of the evidence standard of proof at the temporary suspension hearing did not violate appellant’s due process rights. Appellant has not exhausted his administrative remedies and, in his pending administrative proceeding, may request application of the clear and convincing evidence standard or proof during the permanent suspension hearing. Respondent complied with the Minnesota Government Data Practices Act and the Medical Practice Act by publishing appellant’s temporary suspension order on its website.
 Appellant also argues that respondent erroneously applied the probable cause standard of proof. In determining whether the evidence supported the petition to temporarily suspend appellant’s medical license, respondent first applied the probable cause standard of proof, concluding that “the [committee] met its burden in showing that a temporary suspension must issue.” But “[i]n an exercise of caution,” respondent also applied the higher standard of proof and found that “evidence presented by the Committee has shown by a preponderance of the evidence that [appellant] has violated [Minn. Stat. § 147.091 (2004)] and that his continued practice poses a serious risk of harm to the public.” Therefore, we need not address appellant’s argument that respondent improperly applied the probable cause standard of proof to the temporary suspension proceedings.
Appellant argues that neither Wang
nor Friedenson involved a challenge
to the preponderance of the evidence standard of proof on due process grounds,
and thus both cases are distinguishable.
While we recognize that Wang involved
a challenge to the standard of proof on equal protection grounds, we agree with
respondent that it is implausible to believe that Friedenson involved a challenge to the preponderance of the
evidence standard of proof on anything other than due process grounds. In addition, we decline to apply, by analogy,
the clear and convincing evidence standard required in attorney disciplinary
proceedings. See In re Gillard,
271 N.W.2d 785, 805 n.3 (
 Section 147.001 further provides that “[i]n the interest of public health, safety, and welfare, and to protect the public from the unprofessional, improper, incompetent, and unlawful practice of medicine, it is necessary to provide laws and regulations to govern the granting and subsequent use of the license to practice medicine.”