Page 1

48 P.3d 505; 2002 Ariz. App. LEXIS 102, *;

376 Ariz. Adv. Rep. 11

2 of 8 DOCUMENTS

DALE F. WEBB, M.D., Plaintiff-Appellant, v. THE STATE OF ARIZONA, BY

THE ARIZONA BOARD OF MEDICAL EXAMINERS, an Administrative Agency

of the State of Arizona, Defendant-Appellee.

1 CA-CV 01-0010

COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B

48 P.3d 505; 2002 Ariz. App. LEXIS 102; 376 Ariz. Adv. Rep. 11

June 25, 2002, Filed

PRIOR HISTORY:

Cause No. CV 96-15905. The Honorable Donald F.

Daughton, Judge.

DISPOSITION:

REVERSED AND REMANDED.

COUNSEL:

Bradford Law Offices, P.L.L.C., Phoenix, By Michael E.

Bradford, Jeffrey L. Bradford, Attorneys for Plaintiff-

Appellant.

Janet Napolitano, Attorney General, Phoenix, By Roberto

Pulver, Assistant Attorney General, Attorneys for

Defendant-Appellee.

JUDGES:

NOEL FIDEL, Judge. CONCURRING: ANN A. SCOTT

TIMMER, Presiding Judge, JOHN C. GEMMILL, Judge.

OPINIONBY:

NOEL FIDEL

OPINION:

investigating a patient's complaint against appellant Dr.

Dale F. Webb, granted Webb an interview, at the

conclusion of which it publicly censured him for

unprofessional conduct. Webb requested rehearing, which

the Board denied, and he then sought judicial review. The

superior court dismissed Webb's complaint for failure to

reversed that judgment and remanded for further

Exam'rs, 194 Ariz. 117, 122, 977 P.2d 839, P 27, 977

affirmed Webb's censure on the merits. In this second

appeal, we reverse once more, finding that the Board failed

to provide due process of law.

I. BACKGROUND

surgery. A patient filed a complaint with the Board in

September 1994, the gist of which was that Webb had failed

to take proper diagnostic measures when treating her in

February 1994 for a condition that the Scripps Clinic three

months later diagnosed as cancer. She also alleged that

Webb's office had refused to provide her copies of her

medical records.

investigations and determining on its own motion if a doctor

of medicine has engaged in unprofessional conduct or

patient's complaint and requested his narrative statement.

the patient, and submitted copies of her medical records for

release to her. n1

n1 The records were released to the patient.

Because the Board made no findings regarding an

initial failure to release records, we conclude that

this allegation was not a basis for the censure.

Page 2

48 P.3d 505; 2002 Ariz. App. LEXIS 102, *;

376 Ariz. Adv. Rep. 11

investigated and reviewed the patient's complaint, Webb's

response, and medical records from both Webb's office and

the Scripps Clinic. In a written summary of his

investigation, Saba reported that Webb had seen the patient

on five occasions in February 1994 for a painful left groin,

had diagnosed her condition as an "abscessed lymph node,"

had treated the patient by aspirating the abscess and

prescribing antibiotics and other medications, but had failed

to send a specimen for examination or culture. In May of

the same year, the patient was diagnosed at the Scripps

Clinic as having anal cancer that had metastasized to the

conclusion that "Doctor Webb should have been more

aggressive in pursuing a diagnosis."

interview" would be held on April 18, 1996, to discuss his

care and treatment of the patient and her complaint of

inappropriate management. The letter purported to include

a copy of Dr. Saba's report to assist Webb's preparations;

it advised Webb of his right to be represented by counsel

and his right to either submit material in advance or bring

material to the interview that he wished the Board to

consider; and it advised him that, after a brief overview by

the Board's consultant (Dr. Saba), Webb would be asked to

present "a concise, factual oral response" to the issues

addressed in Saba's report. The letter advised that after the

interview, the Board could "continue the investigation, file

the matter for information, dismiss the matter, file the

matter with an advisory Letter of Concern, take disciplinary

action, or refer the matter to a formal hearing for possible

revocation of license." The letter did not advise Webb that

he had an option to decline an interview and choose a full,

for his interview, which proceeded as we will describe

below. At its conclusion, the Board unanimously approved

Findings of Fact, Conclusions of Law, and a Decree of

Censure. The Board found that Webb had engaged in

Subpart (q) includes within the definition "any conduct or

practice that is or might be harmful or dangerous to the

health of the patient or the public"; subpart (ll) includes

"conduct that the board determines is gross negligence,

repeated negligence or negligence resulting in harm to or

the death of a patient."

II. STANDARD OF REVIEW

superior court examines whether the administrative action

was illegal, arbitrary, or capricious, and whether it involved

Ethridge v. Arizona State Bd. of Nursing, 165 Ariz. 97,

the superior court's ruling upholding the administrative

decision, we independently examine the record to determine

Arizona Bd. of Regents, 153 Ariz. 461, 463, 737 P.2d

court may substitute its judgment for that of the agency on

v. Arizona Racing Comm'n, 141 Ariz. 331, 336, 686 P.2d

judgment, however, to questions of law, including questions

of statutory interpretation and constitutional claims.

Hansson v. State Bd. of Dental Exam'rs, 195 Ariz. 66, 68,

985 P.2d 551, P 6, 985 P.2d 551, 553 (App. 1998).

III. PROCEDURAL DUE PROCESS

practice medicine, and the State may not deprive a

physician of that interest without due process of law.

Comeau v. Arizona State Bd. of Dental Exam'rs, 196 Ariz.

102, 106, 993 P.2d 1066, P 18, 993 P.2d 1066, 1070 (App.

is an official action against the doctor's license.").

opportunity to be heard in a meaningful manner and at a

meaningful opportunity to be heard at the interview

conducted by the Board. In response, the Board defends the

procedural adequacy of Webb's interview but also argues

that Webb waived a more formal hearing by choosing to

appear for an interview instead.

due process requirements. A valid waiver of constitutional

Bocharski, 200 Ariz. 50, 61, P 56, 22 P.3d 43, 54 (2001);

Lynch v. Lynch, 164 Ariz. 127, 132, 791 P.2d 653, 658

clear showing of intent). No such waiver may be found in

the record of this case. Not only did Webb not waive his

entitlement to due process of law; neither can he be found

Page 3

48 P.3d 505; 2002 Ariz. App. LEXIS 102, *;

376 Ariz. Adv. Rep. 11

to have made a knowing choice between an interview and

a hearing.

for an "informal interview," it did not state that he had the

option to decline or that he could choose a formal hearing

instead. The thrust of the letter was that Webb was expected

to appear. n2 Even the statute does not suggest an

unconstrained choice between an interview and a formal

hearing. The statute then in force provided that a formal

hearing would be ordered if a physician "refuses the

disciplinary sanctions from the tribunal extending such an

invitation would understandably be hesitant to refuse.

statute in effect at the time of these proceedings, the

hearing provided to Webb was described as an

"Informal Interview." The Board's notice to Webb

pointed out, however, that although the procedure

was "called an Informal Interview in the Medical

Practice Act, many physicians do not regard the

interview as 'informal.'" By recent amendment the

process is now more aptly described as a "formal

[*9]

through a process that includes elements of an interview.

"Due process is not necessarily judicial process."

Rosenberg v. Arizona Bd. of Regents, 118 Ariz. 489, 492,

inflexible procedures universally applicable to every

U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961).

The Medical Practice Act, however, permits the Board, at

formal hearing, to file a letter of concern, file a letter of

reprimand, issue a decree of censure, fix a period and

terms of probation, restrict the doctor's license to practice,

require restitution of fees, or temporarily suspend the right

A person facing such a range of consequences, in our

judgment, must at a minimum be provided a chance to

confront adverse evidence and question adverse witnesses.

See App. of Levine, 97 Ariz. 88, 91, 397 P.2d 205, 207

process, must include among other elements notice, a

reasonably definite statement of charges, and the right to

Goldberg v. Kelly, 397 U.S. 254, 268, 25 L. Ed. 2d

287, 90 S. Ct. 1011 (1970); Carroll v. Robinson, 178 Ariz.

453, 461, 874 P.2d 1010, 1018 (App. 1994).

by (1) not allowing him to cross-examine Saba; (2)

preventing him from addressing Saba's critique and the

Board's concerns and from submitting evidence in his own

behalf; and (3) failing to give him copies of Saba's report

or the Scripps Clinic medical records, which were

considered by Saba and the Board. We may quickly dispose

of the last point. The Board does not dispute that Webb was

entitled to a copy of Saba's report, but the record does not

substantiate Webb's claim that the Board failed to give him

one. As we have already noted, the Board stated in its letter

notifying Webb of the date of his interview that it was

enclosing Saba's report, and Webb did not object at the

time of the hearing that he had not received it. As for the

establishes that Webb was offered or requested an

opportunity to review them nor establishes that such an

opportunity was denied him. Because we are remanding on

other grounds, it suffices to state that Webb will be entitled

Arizona St. Sch. for the Deaf and Blind, 165 Ariz. 524,

Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593

(1972)).

failed to give him the opportunity to question Saba, the

Board's investigator and chief witness against him. The

Board's answering brief appropriately assumes that Webb

was entitled to this right. It states that the Board "allows the

parties to present testimony, [and] to examine or crossexamine

witnesses." Nothing in the Board's letter to Webb,

however, informed him of a right to cross-examine Saba or,

indeed, anyone else. The letter advised that, following

Saba's presentation, Webb would "be required to discuss

the case and answer questions," that he "must be brief and

questions for the remainder of the interview." If he chose

to bring an attorney, "the attorney may comment briefly or

did not say that an attorney could question the Board's

consultant, nor did it say that Webb, if unrepresented, could

question anyone.

questions for Saba; nor, indeed, was he asked until after the

outcome was decided whether he had any questions for the

Board. The interview began with Saba's report. At the

conclusion of his presentation -- a logical moment to offer

Page 4

48 P.3d 505; 2002 Ariz. App. LEXIS 102, *;

376 Ariz. Adv. Rep. 11

Webb the opportunity to question Saba -- the Board did not

do so. Although Webb asked immediately to respond to

Saba, Chairman Richard D. Zonis replied that Webb would

have "plenty of opportunity" to do so later. Dr. Philip E.

Keen, the Board's Vice Chair, then asked Webb a series of

questions, after which he stated, "Now, ... have I given

you a chance to respond to the area where you wished to

respond initially?"

to address Saba's critique, defend his treatment decisions,

n3 Thus, although Webb lacked the opportunity to question

opportunity to respond to Saba's criticism or the Board's

concerns. Even this opportunity, however, was significantly

curtailed. At the conclusion of the hearing, after informing

Webb of the censure, Chairman Zonis stated, "That is on

your record forever." Then for the first time, Webb was

asked if he had any questions. Webb attempted to formulate

a question: "You're saying it was damaging to the patient.

In what manner would it have altered ...." But Chairman

Zonis cut him off, stating, "Well, we can't go into those

details at this point, doctor."

n3 For instance, Webb stated that cancer had

not entered his mind while treating the patient.

Responding to the charge of being insufficiently

aggressive, he stated, "contrary to what I've been

accused of, ... that two weeks is not being

aggressive, I sit ... for two or three weeks, a

month, on a breast lesion that I'm highly suspicious

is malignant." He stated that he did not believe it

would have been "good medicine to haul this patient

into surgery and excise this lymph node" when it

appeared so infected.

[*14]

in a public censure and that could have resulted in a

sanction as severe as a suspension from practice for as

much as a year. At such a proceeding, the Board is obliged

to provide, and professes to provide, an opportunity to

question adverse witnesses. Webb, however, was given no

such opportunity. Accordingly, because he was denied the

right to fully and fairly test the evidence against him before

the Board imposed a permanent and public sanction, we set

aside the sanction and direct that he be granted a new

hearing that satisfies the requirements of due process.

remand this matter, in order to provide guidance upon

remand we will address two further issues that are likely to

recur. The first concerns the burden upon the Board if it

undertakes once more to establish that Webb violated

negligence, repeated negligence, or negligence that caused

the patient harm or death.

Zonis and Keen and Board consultant Saba identified

mistakes that they felt Webb had made and rendered

opinions about what they thought he should have done, but

they did not articulate a standard of requisite professional

care under the circumstances and in the relevant

community. "[A] doctor is not liable in negligence for mere

mistakes in judgment in treating a patient, but is only liable

where the treatment falls below the recognized standard of

Exam'rs, 157 Ariz. 203, 209, 755 P.2d 1191, 1197 (App.

496 P.2d 602, 604 (1972)).

professional care based upon its members' experience and

expertise, the Board "cannot base its findings ... upon

either undisclosed evidence or personal knowledge of the

Davidson v. State, 33 Wash. App. 783, 657 P.2d 810, 812

provide a fair hearing on an issue of negligence without

alleged deviation. Not only must the Board identify the

standard and articulate the alleged deviation in order to

provide the physician under investigation a fair opportunity

to respond to a charge of negligence; it must do so in order

to provide a reviewing court an opportunity for meaningful

review. "Without clearly articulated standards as a

backdrop against which the court can review discipline, the

judicial function is reduced to serving as a rubber-stamp for

of State Bd. of Med., 127 Idaho 738, 905 P.2d 1047, 1057

n4 Articulating the standard of care for an

errant physician is likewise necessary to accomplish

the rehabilitative purpose of discipline.

which requires only potential harm to a patient or the

Page 5

48 P.3d 505; 2002 Ariz. App. LEXIS 102, *;

376 Ariz. Adv. Rep. 11

public, subsection 32-1401(25)(ll) requires actual harm.

During the course of Webb's interview, the Board made no

harm to his patient -- i.e., that a more aggressive diagnostic

effort would have made a difference. Indeed, when Webb,

after being told that he was censured, attempted to ask how

his treatment had damaged the patient and how a more

aggressive intervention would have altered her prognosis,

Chairman Zonis cut him off in mid-question and declined

remand that Webb's conduct was negligent and thus

establish a deviation from an articulated standard of

professional care, establish that the deviation resulted in

actual harm, and provide reviewable findings on both

points.

V. POTENTIAL HARM

health of the patient or the public." (Emphasis added.) This

standard is broad enough to encompass a diagnostic failure

patient's chance of a better outcome. Our courts have

recognized that loss of a chance may be a basis for liability

Comm. Hosp., Inc., 141 Ariz. 597, 606, 688 P.2d 605, 614

deprived plaintiff of "some significant chance of survival or

v. Faultner, 176 Ariz. 253, 261-63, 860 P.2d 1306, 1314-

failure to conduct proper fire patrol caused loss of a

substantial chance to avoid property loss from fire). The

Board may attempt to establish potential harm of this nature

upon remand.

or practice that is or might be harmful or dangerous to the

health of the patient or public" are unconstitutionally vague

-- so vague or overly inclusive that a physician who came

to work with a head cold could be found to violate the

statute.

harmful or dangerous" are broad. Many appropriate forms

some potential for harm in most prescriptive medication;

and some forms of treatment -- radiation and

chemotherapy, to name two -- involve near certainty of

harm, yet harm accepted and acceptable in the effort to

alleviate still greater harm.

does not mean, however, that it is unconstitutional. "[A]

statute need not be drafted with absolute precision.

'Condemned to the use of words, we can never expect

Baldwin, 184 Ariz. 267, 270, 908 P.2d 483, 486 (App.

Rockford, 408 U.S. 104, 110, 33 L. Ed. 2d 222, 92 S. Ct.

unconstitutionally vague, the court should consider whether

a narrowing construction would clarify the meaning of the

statute without unreasonably constricting the legislative

case.

permit the Board to sanction, any form of treatment that

entails potential danger or harm. Surely the legislature

intended rather to proscribe only those forms of treatment

circumstances, given the applicable standard of care.

Finding such a qualification implicit in any sensible reading

of the statute, we reject the argument that the statute is

unconstitutionally vague. The Board may thus consider, if

it chooses to do so upon remand, whether Webb's conduct

and defined.

VI. CONCLUSION

Board's decision, and remand to the Board for further

proceedings in accord with this opinion. Webb's request for

upon his compliance with Arizona Rule of Civil Appellate

Procedure 21.

NOEL FIDEL, Judge

CONCURRING:

ANN A. SCOTT TIMMER, Presiding Judge

JOHN C. GEMMILL, Judge

Page 6

48 P.3d 505; 2002 Ariz. App. LEXIS 102, *;

376 Ariz. Adv. Rep. 11