Lipton v. Arizona Medical Board

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) Plaintiff/Appellant, ) ) ) v. ) ) ARIZONA MEDICAL BOARD, ) Defendant/Appellee. ) _______________________________________ ) GLENN M. LIPTON, M.D., 1 CA-CV 11-0352 DIVISION ONE FILED: 02-21-2012 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. LC2010-000881-001 The Honorable Crane McClennen, Judge AFFIRMED The Ledbetter Law Firm, P.L.C. By James E. Ledbetter and Tosca G. Henry Attorneys for Plaintiff/Appellant Cottonwood Thomas C. Horne, Arizona Attorney General Phoenix By Jennifer A. Boucek, Assistant Attorney General Attorneys for Defendant/Appellee K E S S L E R, Judge ¶1 superior Plaintiff/Appellant Glenn M. Lipton, M.D., appeals the court s dismissal of his complaint against Defendant/Appellee Arizona Medical Board ( Board ) for lack of subject matter jurisdiction. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 In June 2010, the Board received a complaint against Lipton alleging inappropriate advertising. The Board opened an investigation, notified Lipton of the complaint, and requested that he respond to the allegations. complaint, provided records, and Lipton responded to the later filed response to the Board s investigation report. an additional On October 13, 2010, the Board voted to issue Lipton an advisory letter for failing to adequately disclose his board certification qualifications in his advertisements, which Arizona law defines as unprofessional conduct. See Arizona Revised Statutes ( A.R.S. ) section 32-1401(27)(mm) (Supp. 2011).1 ¶3 Lipton filed a complaint in the seeking judicial review of the Board s decision. superior court, He alleged the Board had exceeded its authority and violated his constitutional rights by issuing the advisory letter. The Board moved to dismiss for lack of jurisdiction on the grounds that an advisory letter is not subject to judicial review. motion to dismiss. ¶4 We 1 have The court granted the Lipton timely appealed. jurisdiction pursuant to A.R.S. § 12- We cite the current version of the applicable statute when no revisions material to this decision have since occurred. 2 2101(A)(1) (Supp. 2011). DISCUSSION ¶5 his Lipton contends the superior court erred in dismissing complaint for lack of subject matter jurisdiction. He argues the superior court had jurisdiction to review his appeal from the Board s advisory letter because (1) it was a final decision, issue and the (2) he challenged letter. We jurisdiction de novo. the review a Board s jurisdiction dismissal for lack to of Guminski v. Ariz. State Veterinary Med. Examining Bd., 201 Ariz. 180, 182, ¶ 9, 33 P.3d 514, 516 (App. 2001). A. The Administrative Letter is not an Appealable Decision. ¶6 The Board is a state agency disciplines allopathic medical doctors. 1491 (2008 & Supp. 2011). It is that licenses and A.R.S. §§ 32-1401 to - authorized to investigate evidence or complaints that a doctor is medically incompetent, guilty of unprofessional conduct, or mentally or physically unable to safely engage in the practice of medicine. 32-1451(A) (Supp. 2011). If the Board A.R.S. § determines, after investigation, that a matter is not of sufficient seriousness to merit letter disciplinary and/or action, require the medical education courses. it may instead licensee to file complete an continuing A.R.S. § 32-1451(E)(2)-(3). 3 advisory It may also dismiss without merit. ¶7 the matter if it determines the complaint is A.R.S. § 32-1451(E)(1). The Administrative Review Act, A.R.S. §§ 12-901 to - 914 (2003 & Supp. 2011), governs actions for judicial review of an administrative agency s final decision. (2003). A.R.S. § 12-902(A) It defines a decision as: any decision, order or determination of an administrative agency that is rendered in a case, that affects the legal rights, duties or privileges of persons and that terminates administrative agency. the proceeding A.R.S. § 12-901(2) (2003). before the In Murphy v. Board of Medical Examiners of the State of Arizona, 190 Ariz. 441, 448-49, 949 P.2d 530, 537-38 (App. 1997), this court expressly held that the Board s issuance of a letter of concern (now denominated an advisory letter)2 is not a final decision subject to superior court review. Board s advisory complaint against letter Although it is true that the terminated Lipton, the its investigation advisory letter is of not the a decision because it does not affect Lipton s legal rights, duties, or privileges. ¶8 See id. Lipton argues Murphy does not apply to the facts in this case because he alleged in his complaint that the Board 2 See 1999 Ariz. Sess. Laws, ch. 218, §§ 3 & 12 (1st Reg. Sess.) ( advisory letter of concern renamed an advisory letter). 4 violated his legal rights to due process, equal protection, and freedom of speech by issuing the advisory letter. However, because the advisory letter did not impair or limit Lipton s medical license or any liberty interest, it did not affect his legal rights, duties, or privileges. See A.R.S. § 12-901(2); Murphy, 190 Ariz. at 448-49, 949 P.2d at 537-38.3 Because this case does not involve the deprivation of legal rights, Lipton is only entitled to minimal due process. Murphy, 190 Ariz. at 449, 949 P.2d at 538; see Mathews v. Eldridge, 424 U.S. 319, 334 (1976) ( [D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. such procedural demands. Paul v. protections (internal Davis, Due process is flexible and calls for 424 citations U.S. as the and quotation 693, 712 particular (1976) marks situation omitted)); ( [I]nterest in reputation . . . is neither liberty nor property guaranteed against 3 state deprivation without due process of law. ). Lipton argues the advisory letter affected his property right in his medical license, citing Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 106, ¶ 18, 993 P.2d 1066, 1070 (App. 1999). In that case, we held that the dental board s decision to censure a licensee was a form of deprivation that required due process. Id. Comeau is not controlling, however, because the Board did not censure Lipton or impose any other disciplinary action against him. Murphy, 190 Ariz. at 448, 949 P.2d at 537 (rejecting physician s claim that advisory letter affected any property rights that would raise due process concerns). 5 Although Lipton did not receive a separate hearing, he was able to respond to the allegations in writing, and was permitted to address the Board at its meeting on October 13, 2010. believe this level of participation violates We do not minimal due process. ¶9 Further, we reject Lipton s argument that the advisory letter was appealable because it allegedly caused harm to his reputation because it was previously available through the Board s website and remains in his file and available to the public by request.4 We rejected a similar argument in Murphy, ruling that the physician s claim of possible reputational harm from an advisory letter was purely speculative and did not affect the physician s legal rights. 190 Ariz. at 448, 949 P.2d at 537. ¶10 The superior court did not have subject matter jurisdiction over Lipton s appeal because the advisory letter was not a final decision under the Administrative Review Act. B. Challenge to the Board s Authority ¶11 Lipton next argues the court had jurisdiction over his complaint for judicial review because he challenged the Board s 4 Although records concerning a non-disciplinary order issued by a health profession regulatory board against a licensee remain available to the public, Arizona law now prohibits the display of such records on the website of the regulatory board. A.R.S. § 32-3214(B) (Supp. 2011). 6 authority to issue the advisory letter. ¶12 We considered the scope of the Board s authority in Murphy when director for a licensed a physician managed health who care worked as company the medical challenged the Board s jurisdiction to review a complaint charging him with medical incompetence and unprofessional conduct. 446, 949 P.2d at 533, 535. traditional practice Id. at 444, The physician was not engaged in the of medicine, but reviewed medical information provided by insureds and their physicians to decide whether the managed health certain medical procedures. 536. care company would pre-certify Id. at 446, 447, 949 P.2d at 535, The court rejected the physician s argument that the Board lacked authority insurance matters to intercede regulated in by what the he characterized Arizona Department as of Insurance, and held that to the extent the physician rendered medical decisions, his conduct was reviewable by the Board. Id. at 446-47, 949 P.2d at 535-36. ¶13 In this case, there is no dispute that Lipton is licensed by the Board to practice medicine, and that the Board s action concerned specifically, his certifications. Because the Board Lipton s alleged representations See is A.R.S. §§ authorized 7 unprofessional concerning his professional 32-1401(27)(mm), to investigate conduct; -1451(A). evidence or complaints that a doctor is guilty of unprofessional conduct, it is clear it had authority to issue the advisory letter. See A.R.S. § 32-1451(A). ¶14 To Board s merits the extent authority of the Lipton allowed claims his superior letter advisory the even challenge court though it the review to to the was not an administrative decision subject to judicial review, we reject his argument. Although we acknowledged in Murphy that an administrative decision that exceeds an agency s statutory power may be challenged for lack of jurisdiction in a collateral proceeding, 190 Ariz. at 448, 949 P.2d at 537; see also Ariz. Bd. of Regents ex rel. Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm r, 160 Ariz. 150, 156, 771 P.2d 880, 886 (App. 1989), the court did not hold that such review would action. after it Murphy, extend to the merits of the non-final agency Murphy, 190 Ariz. at 448-49, 949 P.2d at 537-38. examined the court the threshold declined challenged advisory letter. to Id. jurisdictional consider the And, question merits of in the Thus, the superior court s consideration of the merits of the advisory letter in this case would have been improper. 8 CONCLUSION ¶15 For the foregoing reasons, we affirm court s dismissal of Lipton s complaint. the superior Lipton requests an award of attorneys fees and costs on appeal pursuant to A.R.S. §§ 41-1001.01(A) (Supp. 2011), 12-348(A)(2) (Supp. 2011), and 12-2030 (2003), which allow an award of fees and costs to a party agency who prevails decision. in a court Because proceeding Lipton has not to review prevailed matter, we deny his request. /s/ DONN KESSLER, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ MARGARET H. DOWNIE, Judge 9 a state in this

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