This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of:

Gerald H. Gammell, M.D.,

License No. 15,981

Date of Birth: 2-15-37.

Filed September 9, 1997


Klaphake, Judge

Office of Administrative Hearings for the

Minnesota Board of Medical Practice

OAH Docket No. 12-0903-9848-2

Marcy S. Wallace, Charlotte M. Reed, McNulty & Wallace, 46 East Fourth Street, #1300, St. Paul, MN 55101-1109 (for Relator Gammell)

Hubert H. Humphrey, III, Attorney General, Jacquelyn E. Albright, Marcia K. Baran, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for Respondent Minnesota Board of Medical Practice)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Foley, Judge.[*]



Relator Gerald H. Gammell, M.D., a psychiatrist, challenges the Minnesota Board of Medical Practice's decision to discipline him for engaging in unethical and unprofessional conduct, improperly managing medical records, and engaging in sexual conduct with patients, violations of Minn. Stat. § 147.091, subd. 1 (1996). He claims (1) he was denied due process because he received insufficient notice of the charges against him; (2) the Board's decision improperly employed a preponderance of the evidence standard; (3) the Board's decision was arbitrary and capricious because it failed to support properly its conclusions of misconduct; and (4) the discipline imposed by the Board was arbitrary and capricious. We disagree and affirm.


1. Notice of Charges

For a contested case hearing, the parties must be given notice of the "issues involved," but where "the issues cannot be fully stated in advance of the hearing," notice must be given "as soon as practicable." Minn. Stat. § 14.58 (1996); see Minn. R. 1400.5600, subpt. 2 (1995) (notice must include "issues to be determined together with a citation to the relevant statutes or rules allegedly violated."). Here, the Board's notice of the charges against Gammell was amended twice before the contested case hearing, with the last amendment occurring approximately 16 days before the hearing. The amendments were consistent regarding the alleged statutory violations and the subject matter of the allegations; the apparent purpose of the amendments was to specify alleged facts with more particularity. Thus, the notice did not violate due process. See Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S. Ct. 1011, 1020 (1970) (procedural due process requires adequate and reasonable notice, among other things); see, e.g., Rosen v. Board of Med. Examiners, 539 N.W.2d 345, 348 (Iowa 1995) (upholding medical licensing decision where amended notice "merely enlarged the factual basis supporting the charge"), cert. denied, 116 S. Ct. 1319 (1996).

2. Evidentiary Standard

Gammell challenges the preponderance of evidence standard applied by the Board and claims that the Board should have applied the clear and convincing evidence standard applied in attorney disciplinary cases, citing In re Wang, 441 N.W.2d 488 (Minn. 1989) (Wang II). In Wang II, however, the supreme court clearly imposed the preponderance of evidence standard, stating "[t]he standard of proof required for administrative hearings is 'a preponderance of the evidence, unless the substantive law provides a different * * * standard.'" Id. at 492 (quoting Minn. R. 1400.7300, subpt. 5 (1987)); see also In re Schultz, 375 N.W.2d 509, 514 (Minn. App. 1985). While the Wang II court admonished that in all disciplinary matters the fact-finder should "be persuaded only by evidence with heft," this comment did not amount to a change in the evidentiary standard. Id. Further, a Wang II footnote that referred to the different evidentiary standards between attorney and medical disciplinary cases did not alter the evidentiary standard to be applied here. Id. at 492, n.5. Because the Wang II court cited and applied the preponderance of evidence standard for medical disciplinary cases, that standard is the law and was properly applied in this case.

3. Evidentiary Support and Stated Bases for Decision

Gammell contends that the Board's decision was arbitrary and capricious and unsupported by substantial evidence. See Minn. Stat. § 14.69 (1996). This court gives great deference to administrative agency decisions. See Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977).

The Board disciplined Gammell for engaging in unethical and unprofessional conduct, improperly managing medical records, and engaging in sexual conduct with patients, grounds for disciplinary action under Minn. Stat. § 149.091, subd. 1(g), (k), (o), (t). In its 21 conclusions of law and 240 findings of fact, the Board specifically describes the improper conduct that formed the basis for its decision.

With regard to Gammell's use of unorthodox treatment modalities, although the Board failed to state a standard of care, the findings and conclusions state that Gammell's treatments were not accepted psychiatric interventions. The enumerated references to the record, including references to expert witness testimony, echo the language of the disciplinary statute. With regard to Gammell's sexual conduct and failure to keep records, the findings and conclusions follow the plain language of the disciplinary statute. Because the extensive record amply supports the Board's findings, which in turn support its conclusions on material issues, we conclude that the decision is not arbitrary and capricious. See Mammenga v. Department of Human Servs., 442 N.W.2d 786, 789 (Minn. 1989) (agency decision arbitrary and capricious if "based on whim or * * * devoid of articulated reasons"); Minn. Stat. § 14.62, subd. 1 (agency decision must include findings of fact and conclusions on material issues).

We also conclude that the Board's decision is supported by substantial evidence. See Cable Communications Bd. v. Nor-west Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984) (defining substantial evidence). The testimony of eight of Gammell's former patients, two nurses, two expert witnesses, and Gammell's own testimony and medical notes, established: (1) Gammell applied nontraditional treatment modalities on his patients, including past life regression therapy, holotropic breathwork, shamanism, releasement or exorcism, and extensive touching; (2) these treatments violated the standard of care for psychiatry and in some instances were harmful to the patients; (3) Gammell engaged in conduct with his patients that was sexual or could be interpreted as sexual; and (4) Gammell failed to keep proper medical records.

Gammell essentially challenges the credibility of the patients and nurses and the weight of the medical expert's testimony and urges this court to adopt his version of the facts. We decline to do so. The Board was best able to judge the credibility of the witnesses. See Padilla v. Minnesota State Bd. of Med. Examiners, 382 N.W.2d 876, 886 (Minn. App. 1986) (court must accept agency's credibility determinations), review denied (Minn. Apr. 24, 1986). Further, the Board's findings must be viewed in the light most favorable to its decision. See McBride v. LeVasseur, 341 N.W.2d 299, 300 (Minn. App. 1983). Substantial evidence supports the Board's decision.

4. Discipline Imposed

Administrative agencies have discretion to assess penalties and sanctions. In re Haugen, 278 N.W.2d 75, 80 n.10 (Minn. 1979); see In re Minn. Tipboard Co., 453 N.W.2d 567, 569 (Minn. App. 1990) (appellate court may not interfere with agency's imposition of penalties and sanctions unless clear abuse of discretion shown), review denied (Minn. May 30, 1990).

Gammell's primary concern is with the $25,000 in costs assessed under Minn. Stat. § 147.141(4) (1996). He contends that evidence of the costs incurred was not included in the record before the administrative law judge and that he had no opportunity to be heard on this issue at the Board hearing. This court has reversed an assessment of costs in a medical disciplinary case where the assessment was based on an affidavit submitted only on appeal and where the affidavit failed to provide a factual basis for the costs assessed. See In re Wang, 417 N.W.2d 268, 274 (Minn. App. 1987) (Wang I), rev'd on other grounds, 441 N.W.2d 488 (Minn. 1989) (Wang II). By contrast, the affidavit of costs here was submitted nearly one month before the Board hearing. In addition, Gammell received notice of the cost reimbursement request and had the opportunity to be heard on the issue at the Board hearing because the Board's December 6, 1996 letter to the parties stated that the parties could address the costs issue at the January 11 hearing.

Further, the affidavit of costs included allowable expenses under Minn. Stat. § 15.471, subd. 4 (1996). See also Wang II, 441 N.W.2d at 497 (enumerating allowable costs in dentist disciplinary action). The affidavit enumerated each claimed cost with supporting documentation. Thus, because the Board had a proper basis for assessing the costs and because Gammell was able to be heard on the issue, the assessment was within the Board's discretion.

Finally, Gammell challenges other conditions placed on his license to practice medicine. Because the record supports the imposition of these restrictions, the Board did not abuse its discretion in imposing them.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.