This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of Joseph P. Repice, M.D.,

Date of Birth: 3-19-45

License No. 23.774.

Filed July 6, 1999


Short, Judge

Minnesota Board of Medical Practice

Rachel B. Rosen, Rosen Law Office, 4029 Dublin Drive, Minnetonka, MN 55345 (for relator Joseph P. Repice)

Mike Hatch, Attorney General, Thomas C. Vasaly, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent Minnesota Board of Medical Practice)

Considered and decided by Toussaint, Chief Judge, Short, Judge, and Schultz, Judge.[*]


SHORT, Judge

The Minnesota Board of Medical Practice revoked Joseph P. Repice's medical license for various ethical and professional violations. On writ of certiorari, Repice argues the board's decision must be reversed because: (1) he was denied his right to due process and effective assistance of counsel; (2) there was insufficient evidence to revoke his license; and (3) the administrative law judge (ALJ) erred when allowing the subpoena and admission of Repice's confidential medical records. We affirm.


An agency decision is presumed to be correct and will be reversed on appeal only when the decision reflects an error of law, when the findings are unsupported by substantial evidence, or when the agency's decision is arbitrary and capricious. Minn. Stat. § 14.69 (1998); Mammenga v. State, Dep't of Human Servs., 442 N.W.2d 786, 789 (Minn. 1989). We defer to the agency's expertise in fact finding, and will affirm an agency's decision if it is lawful and reasonable. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824-26 (Minn. 1977).


Procedural due process protections restrain government action, which deprives individuals of "liberty" or "property" interests within the meaning of the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 7 of the Minnesota Constitution. These protections include reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decision maker, and the right to a reasonable decision based solely on the record. Humenansky v. Minnesota Bd. of Med. Exam'rs, 525 N.W.2d 559, 565 (Minn. App. 1994) (citing Goldberg v. Kelly, 397 U.S. 254, 267-71, 90 S. Ct. 1011, 1020-22 (1970)), review denied (Minn. Feb. 14, 1995). A license to practice medicine is a property right, entitled to due process protection. Id. at 566.

Repice argues his due process rights were violated when the board revoked his medical license because he was not advised of the consequences of his default at the hearing before the ALJ. But the record shows: (1) Repice was given written notice of the allegations against him; (2) the notice of and order for hearing stated: "Respondent [Reprice] is urged to attend; failure to do so may prejudice Respondent's rights in this proceeding and any subsequent proceedings related to this matter, may result in the allegations contained herein being taken as true, and may be the basis for disciplinary action against Respondent;" (3) at the hearing, Repice's counsel stated that she had spoken with her client the night before and they decided together to "give up" because they would not gain anything by the hearing; and (4) Repice testified that he decided to give up at the administrative level because he did not believe he could win. Given these facts, we conclude Repice was given notice consistent with constitutional due process standards. See Minnesota State Bd. of Med. Exam'rs v. Schmidt, 207 Minn. 526, 529, 292 N.W. 255, 257 (1940) (holding due process violation did not occur where doctor was given notice of nature of charges against him with opportunity for hearing).


Repice also argues there was insufficient evidence to revoke his medical license and the administrative law judge's findings were based on a one-sided, incomplete record submitted by the attorney general's office. But Minn. R. 1400.6000 (1997) provides, in case of default, that the allegations in the notice and order for hearing are taken as true. In addition, Repice admitted many allegations in an attempt to streamline the procedure. Moreover, the ALJ held a probable cause hearing with four days of testimony. After a careful review of the record, we conclude that substantial evidence supports the board's disciplinary action against Reprice. See Padilla v. Minnesota State Bd. of Med. Exam'rs, 382 N.W.2d 876, 886 (Minn. App. 1986) (stating findings not contrary to evidence presented supported board's revocation of medical license), review denied (Minn. Apr. 24, 1986).


Finally, Repice argues confidential records were improperly subpoenaed. But Minnesota law allows the board to obtain Repice's medical and health records, notwithstanding contrary law. See Minn. Stat. § 147.091, subd. 6(b) (1998) (allowing board to obtain records despite Minn. Stat. § 13.42 (1998) and Minn. Stat. § 144.651 (1998) that classify medical data as confidential). Repice cites no legal or factual support for his argument that his medical records were improperly submitted to the ALJ. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating issues not briefed on appeal are waived). In addition, Repice's arguments regarding discrimination, spousal privilege, and refusal to grant a continuance are without merit. Under these circumstances, the board's revocation of Repice's license was proper and mandated by the record.


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