O'Connor v. Arizona Medical Board

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL
PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ARTHUR J. O’CONNOR, Appellant,

v.

ARIZONA MEDICAL BOARD, Appellee.

No. 1 CA-CV 13-0533
FILED 07-29-2014

Appeal from the Superior Court in Maricopa County
No. LC2012-000172-001
The Honorable Crane McClennen, Judge

AFFIRMED

COUNSEL

Quintairos Prieto Wood & Boyer, P.A., Phoenix
By Daniel P. Jantsch
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Anne Froedge
Counsel for Appellee
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MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Acting Presiding Judge Maurice Portley and Judge Andrew W. Gould
joined.

N O R R I S, Judge:

¶1 On appeal, Arthur J. O’Connor, M.D., argues the Arizona
Medical Board (“the Board”)1 failed to make sufficient findings and
violated his due process rights in considering certain evidence when it
revoked his medical license for unprofessional conduct. Based on the
record and applicable law, we disagree with these arguments and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 O’Connor was a general surgeon licensed to practice
allopathic medicine in Arizona. The Board is the statutorily created entity
whose “primary duty . . . is to protect the public from unlawful . . . or
unprofessional practitioners of allopathic medicine through licensure,
regulation and rehabilitation of the profession in this state.” Ariz. Rev.
Stat. (“A.R.S.”) § 32-1403(A) (2007).2 “The powers and duties of the
[B]oard include . . . [i]nitiating investigations and determining on its own
motion if a doctor of medicine has engaged in unprofessional
conduct . . . .” A.R.S. § 32-1403(A)(2).

¶3 In July 2011, the Board filed a complaint to revoke
O’Connor’s medical license. The Board alleged O’Connor had interactions
with five patients that constituted “unprofessional conduct” pursuant to

1Pursuantto Arizona Revised Statutes § 32-1401(6) (Supp.
2013), we substituted the Arizona Medical Board for the Arizona State
Board of Medical Examiners as the Appellee in this matter. See ARCAP
27(b).

2Although the Arizona Legislature amended statutes cited in
this decision after the date of the first patient complaint to the Board, the
revisions are immaterial in this appeal. Thus, we cite to the current
version of these statutes.

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A.R.S. § 32-1401(27) (Supp. 2013). As relevant here, “[u]nprofessional
conduct” includes: (1) “[e]ngaging in sexual conduct with a current
patient” unless one of two exceptions inapplicable to this case are present
and (2) “[k]nowingly making a false or misleading statement to the
[B]oard or on a form required by the [B]oard or in a written
correspondence, including attachments, with the [B]oard.” A.R.S. § 32-
1401(27)(z), (jj).

¶4 The Board based its complaint on three investigations it
conducted from 2010 to 2011. In case number MD-10-0988A (“Case 1”),
the Board alleged O’Connor sexually abused patient T.M. In case number
MD-10-1392A (“Case 2”), the Board alleged O’Connor sexually abused
patients J.P. and M.T. In case number MD-11-0006A (“Case 3”), the Board
alleged O’Connor failed to disclose to the Board two other allegations of
sexual abuse made in 2003 and 2005 by patients M.T. and C.W.3

¶5 In September 2011, an Administrative Law Judge (“ALJ”)
conducted an administrative hearing. At the hearing, patients M.T., J.P.,
and T.M., O’Connor, and other witnesses testified. The Board and
O’Connor also offered into evidence various exhibits regarding the
substantive allegations of the patients in Cases 1 and 2, the credibility of
the witnesses, and the disclosures made by O’Connor to the Board at issue
in Case 3.

¶6 Following the hearing, the ALJ found O’Connor sexually
abused patients T.M. and M.T. and concluded O’Connor violated A.R.S.
§ 32-1401(27)(z) in Cases 1 and 2 and A.R.S. § 32-1401(27)(jj) in Case 3. The
ALJ recommended that O’Connor’s license be revoked. In December
2011, the Board adopted the ALJ’s findings of fact and conclusions of law
and revoked O’Connor’s medical license due to unprofessional conduct.4
In February 2012, the Board denied O’Connor’s request for rehearing.

¶7 After exhausting his administrative remedies, O’Connor
sought judicial review of the Board’s order. The superior court affirmed
the Board’s order, and O’Connor timely appealed.

3O’Connor had disclosed to the Board the allegations by
T.M. and J.P., as well as allegations by a fifth patient, D.H.

4The Board adopted the ALJ’s findings of fact and
conclusions of law with minor changes not relevant here.

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DISCUSSION

I. Sufficiency of the Board’s Findings and its Resolution of Conflicting
Testimony in Cases 1 and 2

¶8 Citing Post v. Industrial Commission, 160 Ariz. 4, 770 P.2d 308
(1989), O’Connor first argues the Board failed to make sufficient factual
findings. We disagree. In the administrative decision in Post, “[T]he
judge made no factual findings of consequence, resolved no conflicts in
the evidence, and set forth no conclusions applying law to fact. Instead,
after quoting some testimony and citing general principles of workers’
compensation law, he simply set forth the ultimate legal conclusion . . . .”
160 Ariz. at 5, 770 P.2d at 309. As a result, an appellate court “ha[d] no
way of evaluating the basis of the judge’s award and consequently [could
not] determine the factual support for, or the legal propriety of, his
conclusion.” Id. at 7, 770 P.2d at 311. In this case, the Board made factual
findings of consequence, resolved conflicts in the evidence, and set forth
conclusions applying law to fact. Therefore, the Board made sufficient
findings of fact to support its conclusions.

¶9 O’Connor also challenges the Board’s resolution of
evidentiary conflicts, for example “the ‘he said/she said’ evidence” at
issue in Cases 1 and 2. In reviewing an administrative agency’s decision,
this court “will only search the record to determine whether the evidence
is of a substantial nature to support the lower court’s decision.” Croft v.
Ariz. State Bd. of Dental Exam’rs, 157 Ariz. 203, 207-08, 755 P.2d 1191, 1195-
96 (App. 1988) (citation omitted). We will uphold the Board’s adoption of
the ALJ’s credibility findings if there is substantial evidence in the record
to support that decision. See Ritland v. Ariz. State Bd. of Med. Exam’rs, 213
Ariz. 187, 192, ¶ 15, 140 P.3d 970, 975 (App. 2006); W. States Petroleum, Inc.
v. Ariz. Dep’t of Envtl. Quality, 232 Ariz. 252, 253, ¶ 7, 304 P.3d 539, 540
(App. 2013) (“Issues regarding witness credibility are for the ALJ to
decide, not the superior court or this court.” (citation omitted)).

¶10 Although the Board did not explicitly explain how it
resolved the conflicting testimony in Cases 1 and 2, its analysis is implicit
in its decision. See Pearce Dev. v. Indus. Comm’n, 147 Ariz. 582, 583, 712
P.2d 429, 430 (1985) (The acceptance of certain testimony was “implicit in
the award” because “[t]he administrative law judge could not have
reached the result he did unless he also had resolved the conflict in
the . . . evidence.”). In Cases 1 and 2, the Board necessarily found patients
T.M. and M.T. credible by (a) finding patient J.P. was not credible and (b)

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concluding O’Connor violated A.R.S. § 32-1401(27)(z). The Board’s
credibility analysis is also evident from the presence of the verb “allege”
throughout the findings of fact regarding patient J.P. and its absence from
the findings of fact regarding patients T.M. and M.T. Further, after the
Board rendered its decision, O’Connor requested a rehearing, arguing the
Board had not properly considered the conflicting evidence. At its
February 2012 hearing, the Board heard arguments on O’Connor’s
request, entered into executive session, and voted nine to one to deny the
request for rehearing. Arizona Medical Board, Final Minutes for Reg.
Sess. Meeting (Feb. 1, 2012), at 8, available at
http://www.azmd.gov/MinutesUploads/minutes/February%202012%20
AMB%20Final%20Minutes.pdf.5 Based on our review of the record,
substantial evidence supports the Board’s resolution of the conflicts in the
evidence.

II. Admission of Evidence of Allegations by Patients C.W. and D.H.

¶11 O’Connor next argues the Board violated his due process
rights by considering exhibits the ALJ admitted into evidence concerning
allegations made by patients D.H. and C.W. because neither patient
testified at the administrative hearing and thus he was not able to cross-
examine them. We review constitutional issues, including an alleged
violation of due process, de novo. Carlson v. Ariz. State Pers. Bd., 214 Ariz.
426, 430, ¶ 13, 153 P.3d 1055, 1059 (App. 2007). We review the ALJ’s
admission of evidence for an abuse of discretion. See Epperson v. Indus.
Comm’n, 26 Ariz. App. 467, 471, 549 P.2d 247, 251 (1976) (“Hearing
officers, like trial judges, have broad discretion in determining whether to
admit matters into evidence.”).

¶12 “Procedural due process means that a party had the
opportunity to be heard at a meaningful time and in a meaningful
manner. The elements of procedural due process are notice and an
opportunity to be heard.” Comeau v. Ariz. State Bd. of Dental Exam’rs, 196
Ariz. 102, 106-07, ¶ 20, 993 P.2d 1066, 1070-71 (App. 1999) (citations
omitted) (internal quotation marks omitted). “A party also enjoys a due

5Although these minutes are not part of the record on
appeal, we may take judicial notice of the records of a state agency. See
Jarvis v. State Land Dep’t, 104 Ariz. 527, 530, 456 P.2d 385, 388 (1969),
modified on other grounds by 106 Ariz. 506, 479 P.2d 169 (1970) and by 113
Ariz. 230, 550 P.2d 227 (1976). The Board’s minutes are also available on
file with the Arizona Court of Appeals, Division One.

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process right to offer evidence and confront adverse witnesses.” Gaveck v.
Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz. 433, 437, ¶ 14, 215 P.3d 1114,
1118 (App. 2009) (citation omitted).

¶13 During the hearing, the ALJ admitted into evidence two
exhibits regarding patient D.H. and four exhibits regarding patient C.W.,
including internal hospital documents and contemporaneous police
reports involving their allegations. Although O’Connor was not able to
cross-examine either patient, he was not deprived of a fair hearing in
violation of his due process rights.6 First, the ALJ admitted the exhibits
related to patient D.H. for the limited purpose of providing context for the
Board’s investigative history of O’Connor. Second, testimony from
patient C.W. about the substance of her allegations was unnecessary to
establish a violation of A.R.S. § 32-1401(27)(jj), which requires
“[k]nowingly making a false or misleading statement to the [B]oard.”
O’Connor had the opportunity to refute the charge in Case 3 by
demonstrating that he did not know of the allegations by patients C.W.
and M.T. at the time he made particular statements to the Board. Further,
nothing in the record indicates the Board’s findings of fact or conclusions
of law relied on the truth of the allegations by patients D.H. and C.W.
Thus, the Board did not violate O’Connor’s due process rights or abuse its
discretion in considering this evidence.

III. Admission of the Sante Report

¶14 O’Connor next argues the Board violated his due process
rights by considering a report written by the Sante Center for Healing
(“Sante Report”) during the Board’s investigation. According to
O’Connor, the Sante Report had no “acceptable evidentiary purpose”
because he had already admitted he had failed to disclose the allegations
of patients M.T. and C.W. to the Board and “a fact which is judicially
admitted need not be proved and cannot be disproved.” See Clark Equip.
Co. v. Ariz. Prop. & Cas. Ins. Guar. Fund, 189 Ariz. 433, 439, 943 P.2d 793,
799 (App. 1997) (“A judicial admission is . . . therefore to be taken for
granted; so that the one party need offer no evidence to prove it and the
other is not allowed to disprove it” (citation omitted)). Although
O’Connor is correct that a judicially admitted fact need not be proved, that
principle is inapposite here.

6O’Connor does not otherwise argue these exhibits
prejudiced his right to a fair hearing.

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¶15 At the hearing, O’Connor attempted to argue his level of
intent regarding his failure to disclose the allegations to the Board. The
Board offered the Sante Report for the purposes of (a) establishing the
extent to which O’Connor knew about the allegations by all five patients,
(b) attempting to show a pattern of conduct, and (c) impeachment.
Assuming without deciding that evidence overlapping with a judicially
admitted fact is inadmissible, the Board’s use of the Sante Report did not
overlap with O’Connor’s judicially admitted facts and the Board did not
abuse its discretion by considering the Sante Report.

¶16 O’Connor also argues the Sante Report was inadmissible
because the Board did not provide the “files/raw data” gathered by Sante,
and thus O’Connor was unable to counter the evidence in the Sante
Report. We disagree. The record reflects the Board informed O’Connor at
least one month before the hearing that it did not have these materials.7
And, O’Connor has cited no legal authority establishing that the Board
was affirmatively obligated to obtain this information for him.

¶17 O’Connor also contends the Sante Report was inadmissible
because its contents “were detrimental and subject to creating bias and
prejudice in the mind of [the] ALJ.” We presume an ALJ and
administrative agency, like a trial judge, are free of bias and prejudice. Cf.
State v. Hurley, 197 Ariz. 400, 404, ¶ 24, 4 P.3d 455, 459 (App. 2000) (“A
trial judge is presumed to be free of bias and prejudice.” (citations
omitted)). Here, O’Connor does not identify anything in the record, other
than the Board’s unfavorable decision, potentially demonstrating bias.
Because the Board’s decision, by itself, cannot serve as the basis for a claim
of bias, we reject this argument. Cf. State v. Henry, 189 Ariz. 542, 546, 944
P.2d 57, 61 (1997) (“Opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings . . . do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible” (citations omitted) (internal quotation
marks omitted)).

7The record does not reflect that O’Connor contacted Sante
to obtain the “files/raw data.”

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CONCLUSION

¶18 For the foregoing reasons, we affirm the superior court’s
decision affirming the Board’s order revoking O’Connor’s license.

:gsh

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