ALJDEC

00F-092697-MDX · Board of Medical Examiners · 2000-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 2000. APPEARANCES: The Appellant, Thomas J. Tobias, Ph.D., M.D., appeared personally. The Arizona Board of Medical Examiners was represented by Assistant Attorney General Michael Harrison. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Arizona Board of Medical Examiners (“BOMEX”) is the duly constituted authority for the licensure, regulation and control of practitioners of medicine in the State of Arizona. 2. BOMEX is authorized to grant or deny licenses to engage in the practice of medicine pursuant to A.R.S. § 32-1421 et seq. 3. This matter comes on for formal hearing on the denial of Appellant’s application for medical licensure by BOMEX on the grounds that he fails to meet the requirements for licensure set forth in A.R.S. § 32- 1422(A)(5) ( have a professional record which indicates that the applicant has not had a license to practice medicine refused, revoked, suspended or restricted in any way by any other State, territory, district, or country for reasons which relate to his ability to safely practice medicine). 4. On or about October 10, 1995, Appellant submitted an application for licensure to the Medical Board of California (“California Board”). 5. By letter dated January 9, 1997, the California Board advised Respondent of its decision to deny his application for California medical licensure. Respondent was further advised that his application would be forwarded to the Attorney General’s office for preparation and filing of a Statement of Issues. Respondent was also advised of his entitlement to an administrative hearing before an Administrative Law Judge and that he would be notified by the California Office of Administrative Hearings of the date of such hearing. 6. On or about May 7, 1997, Ronald Joseph, Executive Director of the California Board, issued a Statement of Issues wherein allegations were made against Appellant with a request that Appellant’s application for a physician and surgeon’s license be denied and that the matter be set for formal hearing. 7. A formal administrative hearing was conducted before Administrative Law Judge Jaime Rene Roman of the California Office of Administrative Hearings. The Complainant was Ronald Joseph, Executive Director of the California Board, in his official capacity; the Appellant was the Applicant/Respondent. The hearing was held on November 5, 6, 7 and 10, 1997, in Sacramento, California. 8. After conclusion of the California administrative hearing, Administrative Law Judge Roman on November 20, 1997, recommended that Appellant’s California application for medical licensure be denied by the California Board. 9. On December 17, 1997, the California Board adopted Administrative Law Judge Roman’s Proposed Decision, which included the denial of Appellant’s application. 10. On or about August 1, 1996, Appellant filed an application with BOMEX for an Arizona license to practice medicine through endorsement. At that time Appellant’s California application for medical licensure was pending. 11. On September 26, 1997, BOMEX considered Appellant’s Arizona application for licensure. Based upon the application and documents in support of it, BOMEX issued an Amended Order on Denial of License dated November 21, 1997, effective as of October 23, 1997, which denied Appellant’s application for medical licensure on the grounds that he fails to meet the requirements for licensure set forth in A.R.S. § 32-1422(A)(5) (have a professional record which indicates that the applicant has not had a license to practice medicine refused, revoked, suspended or restricted in any way by any other State, territory, district or country for reasons which relate to his ability to safely practice medicine). The basis for BOMEX’s denial of Appellant’s application was the California Board’s January 9, 1997, denial of Appellant’s California application. 12. Subsequent to the California Board’s denial of his application, Appellant filed a Petition for a Writ of Mandate in the Superior Court of the State of California. The Superior Court granted Appellant’s petition and issued a Writ of Mandate on June 24, 1998, and remanded the matter back to the California Board for further review. 13. Appellant appealed the Superior Court’s granting of his Petition for Writ of Mandate to the Court of Appeals of the State of California. On or about October 8, 1998, the Court of Appeals issued an Order denying the appeal. 14. On or about October 22, 1998, the California Board set aside its December 17, 1997, decision and reconsidered its decision as commanded by the Superior Court. Upon reconsideration, the California Board ordered that Appellant’s California license application be denied “for (his) failure to satisfactorily complete at least one continuous year of approved postgraduate training, as set forth in Finding Nos. IV through VII, inclusive”. The California Board Decision Pursuant to Writ of Mandate became effective on November 23, 1998. 15. The evidence of record supports a finding that the California Board Decision Pursuant to Writ of Mandate is a final administrative decision. There is no evidence that Appellant filed any further judicial appeals of that final administrative decision in the California judicial courts. 16. Appellant did file a complaint against BOMEX and the California Board with the United States District Court for the District of Arizona. Appellant contended that those two boards violated his civil rights when they denied his applications for licensure. The United States District Court dismissed the case ruling that the two boards are state agencies immune from suit in federal court under the Eleventh Amendment. 17. Appellant appealed the United States District Court’s dismissal of his complaint to the United States Court of Appeals for the Ninth Circuit. The Court of Appeals affirmed the District Court’s dismissal of the complaint. The Court of Appeals later issued an Order denying Appellant’s petition for panel rehearing and stated that the appeal was closed. 18. It is determined that the California Board’s Decision on Writ of Mandate denying Appellant’s license application in that state which has become a final administrative action did not deprive him of a reasonable and fair hearing. 19. It is found that the decisions made by the Superior Court of the State of California, the Court of Appeals of the State of California, the United States District Court for Arizona and the United States Court of Appeals for the Ninth Circuit did not deprive Appellant of a reasonable and fair hearing. 20. Appellant failed to establish extrinsic fraud in either the prior administrative or judicial proceedings in California or in his federal court actions. On the contrary, the evidence that Appellant attempted to present as extrinsic fraud in this administrative proceeding constituted a collateral attack of the final California administrative decision upon which BOMEX relied on when it denied Appellant’s application for medical licensure in Arizona. 21. The California Board’s Decision on Writ of Mandate denying Appellant medical licensure is found to be just, reasonable and lawful. 22. Appellant is found to have a professional record which indicates that he has had a license to practice medicine refused by the State of California which is further found to relate to his ability to safely practice medicine.

CONCLUSIONS OF LAW

1. Pursuant to A.R.S. § 41-1092.07(G) and A.A.C. R2-19-119, the Appellant has the burden of proof by a preponderance of the evidence in this appeal. 2. Under the doctrine of collateral estoppel, Appellant is precluded from re-litigating the issues subject to the final administrative action by the California Board. 3. In order for Appellant to collaterally attack the final administrative action by the California Board which resulted in the denial of his California medical license application by claiming that there was extrinsic fraud in the California proceedings, there must be evidence that Appellant was deprived of a reasonable and fair hearing, not to an asserted error in judgment itself. Gilbert v. Board of Medical Examiners of the State of Arizona, 155 Ariz. 169, 175 (App.), 745 P.2d 617. Extrinsic fraud is defined as “(f)raud which is collateral to the issues tried in the case where the judgment is rendered…(t)ype of deceit which may form basis for setting aside a judgment”. BLACK’S LAW DICTIONARY, pg. 661 (Sixth Ed.). Appellant failed to establish his claim of extrinsic fraud in the California proceedings. On the contrary, Appellant was not deprived of a reasonably fair hearing in the California proceedings and he attempted to collaterally attack those proceedings in this matter by contending that there was error in the judgment of the California Board. 4. The evidence of record is adequate to establish that BOMEX acted within its authority when it issued the Amended Order on Denial of License denying Appellant’s application for a medical license on the grounds that he fails to meet the requirement for licensure set forth in A.R.S. § 32- 1422(A)(5) (have a professional record which indicates that the applicant has not had a license to practice medicine refused, revoked, suspended or restricted in any way by any other State, territory, district or country for reasons which relate to his ability to safely practice medicine). 5. The appeal in this matter should be dismissed due to the failure of the Appellant to meet his burden of proving that the prior denial of his application for licensure by BOMEX was improper or that it should be overturned. 6. The evidence of record supports upholding and affirming the Amended Order on Denial of License issued by BOMEX denying Appellant’s application.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Appellant’s appeal in this matter be dismissed. It is further recommended that the Amended Order on Denial of License issued by BOMEX be upheld and affirmed, thereby denying Appellant’s application for a medical license on the grounds that he fails to meet the requirements for licensure set forth in A.R.S. § 32-1422(A)(5). Done this day, August 3, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Board of Medical Examiners Claudia Foutz, Executive Director ATTN: Amanda Diehl 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826