This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1067

In the Matter of the Medical License of

Robert W. Tatreau, M.D.

Filed October 22, 1996

Affirmed

Lansing, Judge

Minnesota Board of Medical Practice

[OAH File No. 12-0903-10311-2]

[License No. 21,662]

Andrew S. Birrell, Ian A.J. Pitz, Meshbesher Birrell & Dunlap, Ltd., 2450 Park Avenue, Minneapolis, MN 55404 (for Relator, Robert W. Tatreau)

Hubert H. Humphrey III, Attorney General, David E. Flowers, Mary L. Stanislav, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent, Minnesota Board of Medical Practice)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

We review by certiorari an order of the Minnesota Board of Medical Practice disciplining a physician on the ground that he previously had disciplinary action taken against his medical licenses in two other states. We conclude that the terms of the physician's stipulated surrender of his licenses in those states provided adequate grounds for the board to impose discipline against the physician's Minnesota medical license, that the board's summary disposition of the disciplinary proceedings did not violate due process, and that the board did not unreasonably delay the commencement of the proceedings. We affirm.

FACTS

Robert Tatreau has been licensed to practice medicine and surgery in Minnesota since September 1974. He received licenses to practice in California, in 1978, and in Colorado, in 1985.

Tatreau practiced as an obstetrician and gynecologist in California until May 1984, when a hospital there suspended his staff privileges. He later lost his staff privileges at a second hospital in California. Tatreau then moved to Colorado, where he began practicing as an obstetrician and gynecologist in February 1985.

The California Board of Medical Quality Assurance filed an accusation against Tatreau in June 1986. In that accusation and in supplemental allegations, the board charged Tatreau with engaging in unprofessional conduct in connection with his allegedly incompetent, negligent, and grossly negligent treatment of seven patients between June 1981 and May 1984. In a settlement that became effective on March 24, 1989, Tatreau stipulated to the surrender of his certificate to practice in California and "to any rights he may have to renew or reinstate that certificate, except by order of the Board."

The Colorado Board of Medical Examiners also began an investigation into Tatreau's medical practice and discovered that, when Tatreau applied for a medical license in Colorado, he had failed to inform that state of one of the two California hospitals that had suspended his staff privileges. The Colorado Board found that this omission constituted "fraud, misrepresentation, or deception in applying for his Colorado medical license." Tatreau waived his right to a hearing on this charge and entered into a stipulation under which he agreed to surrender his license to practice medicine in Colorado.

Tatreau returned to Minnesota in September 1988. In November 1989 the Complaint Review Committee of the Minnesota Board of Medical Examiners informed him that it had become aware of the proceedings against him in California and Colorado. The committee continued to investigate and beginning in March 1994 attempted to reach a stipulation with Tatreau.

The committee formally initiated a contested case on January 12, 1996, alleging that Tatreau could be subject to discipline in Minnesota on the basis of previously having had disciplinary action taken against his medical licenses in California and Colorado. The committee moved for a summary disposition of the case. Following a prehearing conference, the ALJ recommended that the board grant the committee's motion. The board, after hearing oral arguments from the parties, adopted the ALJ's recommendation, reprimanded Tatreau, charged him with $455 in costs for the proceedings, and conditioned his future practice in obstetrics and gynecology on obtaining "pre-approval [from the Complaint Review Committee] of his practice setting," and obtaining a committee determination of fitness "[p]rior to commencing practice."

ANALYSIS

Tatreau raises three arguments on this review of the board's order. He contends that (1) the board erred in concluding that the stipulations under which he agreed to surrender his medical licenses in California and Colorado constituted grounds for disciplining him in Minnesota, (2) the limited nature of the ALJ's and board's proceedings violated due process, and (3) the board unreasonably delayed commencing the disciplinary proceedings against him.

I

Tatreau first argues that the board erroneously concluded that his agreement to surrender his medical licenses pursuant to stipulations in California and Colorado provided grounds to discipline him in Minnesota under Minn. Stat. § 147.091, subd. 1(d) (Supp. 1995). This issue of statutory construction presents a question of law, which we review de novo. Doe v. State Bd. of Medical Examiners, 435 N.W.2d 45, 48 (Minn. 1989).

Section 147.091, subdivision 1(d), provides that the following may be grounds for the discipline of a physician who is licensed to practice in Minnesota:

Revocation, suspension, restriction, limitation, or other disciplinary action against the person's medical license in another state or jurisdiction, failure to report to the board that charges regarding the person's license have been brought in another state or jurisdiction, or having been refused a license by any other state or jurisdiction.

Minn. Stat. § 147.091, subd. 1(d). The forms of disciplinary action that the board may take against a physician who is licensed in this state include: the revocation or suspension of a license, limitations or conditions on the physician's practice, civil penalties, unremunerated professional service requirements, and censure or reprimand. Minn. Stat. § 147.141 (1994).

Tatreau asserts that the stipulations that he entered into in Colorado and California amounted to no more than the voluntary surrender of his medical licenses in those states. Because the phrase "voluntary surrender" does not appear on the list of permissible forms of disciplinary action that the board may take under section 147.141, Tatreau contends that the board improperly concluded that there were adequate grounds to discipline him under section 147.091, subdivision 1(d). We disagree.

Under the terms of the California stipulation, Tatreau not only surrendered his certificate to practice, but he also surrendered "any rights he may have [had] to renew or reinstate that certificate, except by order of the [California] Board." The stipulation further provided that the California Board would deem as admitted one set of allegations against Tatreau if he ever applied for renewal or reinstatement of his certificate in California. These terms imposed "restriction[s], limitation[s], or other disciplinary action" against Tatreau and thus provided a proper ground for disciplining him under Minn. Stat. § 147.091, subd. 1(d).

We also conclude that Tatreau's stipulation in Colorado constituted a second basis for discipline under Minn. Stat. § 147.091, subd. 1(d). In Colorado, as in California, Tatreau agreed to surrender his medical license. In addition Tatreau acknowledged in the Colorado stipulation that the surrender of his license in that state would "have the same force and effect as if the [Colorado] Board had entered an order of revocation upon the conclusion of formal administrative hearings." His stipulation was thus effectively a "[r]evocation * * * in another state" under section 147.091, subdivision 1(d).

II

It is undisputed that the Minnesota Board's disciplinary action against Tatreau deprived him of a property interest in his medical license. See Humenansky v. Minnesota Bd. of Medical Examiners, 525 N.W.2d 559, 566 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). Tatreau claims that the board's proceedings depriving him of that interest violated due process.

Due process requires notice and an opportunity to be heard. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970). Tatreau does not argue that he received inadequate notice, but claims that he was not given an adequate opportunity to be heard. Specifically, he asserts that the ALJ or the board should have conducted a hearing at which he could have presented evidence of (1) the underlying charges against him and (2) factors that might mitigate the board's decision to discipline him.

The Minnesota Board was not required to provide Tatreau with a hearing on the underlying allegations made against him in California and Colorado, because he expressly waived his right to a hearing on those allegations. See Marek v. Board of Podiatric Medicine, 20 Cal. Rptr.2d 474 (Ct. App. 1993) (finding no due process violation when California Board disciplined podiatrists on ground that Nevada consent decrees constituted discipline in another state), review denied (Cal. Sept. 16, 1993).

Neither did the lack of a full evidentiary hearing on the subject of mitigating factors violate due process. Tatreau was given the opportunity to submit a memorandum and a supporting affidavit in opposition to the Complaint Review Committee's motion for summary disposition, to participate in a prehearing conference with the ALJ, and to argue orally before the board. These proceedings satisfied minimum due process requirements under the circumstances. See Humenansky, 525 N.W.2d at 566 ("Due process is a flexible concept and the form of procedural protection varies according to the particular situation.").

III

Finally, Tatreau argues that the board unreasonably delayed in commencing the disciplinary proceedings against him.

To the extent that this argument is premised on the doctrine of laches, it cannot be invoked as a defense against the board, which is a governmental body and was acting in its sovereign capacity by bringing this action against Tatreau in an effort to protect the public interest. Leisure Hills v. Department of Human Servs., 480 N.W.2d 149, 151 (Minn. App. 1992).

Alternatively, Tatreau argues that, even if the doctrine of laches does not apply to the board, basic principles of due process should preclude even a governmental entity from benefitting from an unreasonable delay. Although some courts have expressed approval of such a rule, they require parties asserting the defense to demonstrate prejudice from the delay in order for the defense to apply. See, e.g., Gropp v. District of Columbia Bd. of Dentistry, 606 A.2d 1010, 1016 (D.C. 1992); cf. Wheeler v. City of Wayzata, 533 N.W.2d 405, 409 (Minn. 1995) (stating in the context of a laches defense that prejudice is not always essential, but it is significant in determining whether the delay was reasonable). The facts of this case demonstrate that any delay in formally commencing the proceedings against Tatreau was not unreasonable; at least part of the delay resulted from the board's efforts to resolve the matter by negotiating a stipulation with Tatreau. Tatreau has also failed to establish that he was prejudiced by the delay. Although Tatreau claims that he would have difficulty obtaining reliable testimony from witnesses to the underlying charges against him in California, the board's decision did not require the consideration of such evidence. The board's determination that Tatreau had been subjected to disciplinary action in other states depended only on the undisputed existence of official documents: the California and Colorado stipulations.

D E C I S I O N

Tatreau's stipulations to surrender his medical licenses in California and Colorado provided sufficient grounds for discipline under Minn. Stat. § 147.091, subd. 1(d). The proceedings of the Minnesota Board of Medical Practice comported with due process, and the delay in the commencement of the proceedings was not unreasonable nor did it result in prejudice.

Affirmed.