No. 1 CA-CV 14-0288
COUNSEL Arizona Attorney General's Office, Phoenix By Anne Froedge Counsel for Defendant/Appellee The Geiszl Firm, Phoenix By Holly R. Gieszl and Strong-Garner-Bauer PC, Springfield, MO By Joseph Chandler Gregg, Pro Hac Vice Co-Counsel for Plaintiff/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
The Honorable Crane McClennen, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Arizona Attorney General's Office, Phoenix
By Anne Froedge
Counsel for Defendant/Appellee
The Geiszl Firm, Phoenix
By Holly R. Gieszl
and Strong-Garner-Bauer PC, Springfield, MO
By Joseph Chandler Gregg, Pro Hac Vice
Co-Counsel for Plaintiff/Appellant
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Chief Judge Michael J. Brown joined. GOULD, Judge:
¶1 Dr. Gabriel U. Ogbonnaya appeals from the superior court's order affirming the Arizona Medical Board's (the "Board") decision to revoke his medical license. For the following reasons, we vacate one of the grounds for revocation, but affirm revocation of Ogbannaya's license on the remaining grounds.
FACTS AND PROCEDURAL BACKGROUND
¶2 On June 9, 2010, the Board initiated an investigation regarding Ogbonnaya after receiving a press release from the Mesa Police Department stating that he had been arrested for sexual abuse. The Board held an emergency teleconference meeting on June 15, 2010 to address the report. As a result of the meeting, the Board and Ogbonnaya entered an interim consent agreement whereby Ogbannaya agreed to submit to practice restrictions and participate in a psychosexual evaluation within 30 days.
Board Investigation No. MD-10-0805A.
¶3 During the police investigation, additional patients came forward accusing Ogbannaya of sexual abuse, and he was arrested a second time on June 25, 2010. As a result, the Board held a summary action teleconference meeting on June 30, 2010 to discuss whether, in the interest of the public's safety and welfare, Ogbonnaya's license should be suspended. The Board concluded the public interest required suspension, and it issued a summary suspension order on July 1. The suspension order directed Ogbonnaya to submit to a residential psychosexual evaluation at one of three Board-approved facilities within 30 days.
¶4 Ogbonnaya did not submit to a psychosexual evaluation within the required time. Of the three Board-approved facilities, the only one located in Arizona, The Meadows, refused to evaluate him, and he could not attend the other two because the release conditions in his pending criminal case did not permit him to leave Arizona. Thus, the Board opened another investigation based on Ogbannaya's allegedly unprofessional conduct for violating the Board's treatment order.
Board Investigation No. MD-10-1036A.
¶5 The Board consolidated the investigation involving Ogbonnaya's alleged sexual misconduct/patient harm (Investigation No. MD-10-0805A) with its investigation involving his violation of the psychosexual evaluation order (Investigation No. MD-10-1036A). The Board requested a hearing before the ALJ, which was granted, and it submitted a complaint to the ALJ alleging Ogbonnaya: (1) engaged in unprofessional conduct by failing to maintain adequate medical records; (2) engaged in medical practices with the potential to cause harm to patients; (3) violated the Board's order regarding a psychosexual evaluation; and (4) engaged in sexual conduct with his patients.
¶6 The ALJ held a hearing over the course of seven days in August and September 2011. The complaining patients all testified at the hearing and were subject to cross examination. Additionally, the ALJ heard testimony from the Mesa Police Department Detective investigating Ogbonnaya, the executive director of the Board, and the Board's investigator. Members of Ogbonnaya's medical staff and a medical expert testified on Ogbonnaya's behalf.
¶7 On November 21, 2011, the ALJ issued his decision, recommending that the Board revoke Ogbonnaya's medical license. The ALJ made several pages of findings of fact and conclusions of law in support of his decision.
¶8 The Board adopted the ALJ's decision with some minor changes. In its decision, the Board concluded that Ogbonnaya committed unprofessional conduct by improperly prescribing medications to some of his patients, and that he engaged in inappropriate sexual conduct with the complaining patients. The Board also concluded Ogbonnaya engaged in unprofessional conduct by violating its order that he undergo a psychosexual evaluation. Accordingly, the Board ordered Dr. Ogbonnaya's license be revoked.
¶9 Ogbonnaya filed a timely complaint for judicial review of the Board's decision. In the superior court, Ogbonnaya moved to introduce new evidence regarding his acquittal on the charges in his criminal case; however, the superior court denied the motion because it was filed nearly one year after he filed his complaint. After reviewing the administrative record that was before the ALJ, the superior court affirmed the Board's order and Ogbonnaya timely appealed to this court for review.
Ogbonnaya does not appeal the superior court's denial of his motion to introduce new evidence. --------
I. Standard of Review
¶10 When reviewing a judgment upholding an administrative agency's decision we independently examine the administrative record to determine whether substantial evidence supports the agency's judgment. Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 557, ¶ 7 (App. 2002); see also Ritland v. Ariz. State. Bd. of Med. Exam'rs, 213 Ariz. 187, 189, ¶ 7 (App. 2006) (stating that we do not review the superior court's judgment, rather we review the Board's decision). Substantial evidence supports the decision "even if the record also supports a different conclusion." Ritland, 213 Ariz. at 189, ¶ 7.
¶11 We may not reweigh the evidence or substitute our own judgment for that of the agency on factual questions or matters of agency expertise. Golob v. Ariz. Med. Bd. of State, 217 Ariz. 505, 509, ¶ 11 (App. 2008); see also In re Cutshaw, 6 Ariz. App. 330, 333 (1967) ("[W]hen there is substantial evidence supporting the findings of the Board of Medical Examiners, the court may not substitute its own judgment as to the credibility of the witnesses and, unless the testimony supportive of the administrative decision is so inherently improbable as to indicate arbitrariness and capriciousness on the part of the board, the findings of the board must be accepted by the court on the appeal."). We do, however, "review the agency's application of law de novo." Ritland, 213 Ariz. at 189, ¶ 7. II. Unprofessional Conduct: Sexual Misconduct and Harm to Patients
¶12 Ogbonnaya challenges the Board's decision in the sexual misconduct/patient harm case (MD-10-0805A) as arbitrary and capricious, claiming the ALJ's findings were unreasoned, he did not consider the facts, and he did not employ independent decision-making. To support this claim, Ogbonnaya points to numerous findings of fact in the ALJ's decision that he argues are incorrect or not supported by the record.
¶13 To be clear, as the reviewing court, we review the Board's decision, not the ALJ's recommended decision. See Arizona Revised Statute ("A.R.S.") § 32-1453 (stating judicial review of final decisions of the board). The Board is tasked with investigating claims of physician misconduct. A.R.S. § 32-1451(A) (West 2015). "If the Board finds that information gained from an investigation into allegations of unprofessional conduct warrants suspension or revocation of a person's license, it must initiate a hearing before an ALJ." Ritland, 213 Ariz. at 189, ¶ 8 (citing A.R.S. § 32-1451(J)). The ALJ then conducts a hearing and issues a recommended decision. Id. The Board has authority to "review, accept, or modify the [ALJ's] recommended decision," and, thus, "[i]t is the Board that ultimately finds a person guilty of unprofessional conduct and enters disposition of the person's license." Id.
¶14 Thus, the Board has authority to overrule the ALJ's credibility determinations, and we will defer to the Board's conclusions on such issues if supported by substantial evidence in the record. Ritland, 213 Ariz. at 191-92, ¶ 15. Moreover, we may only reverse the Board's penalty for a clear abuse of discretion. Lathrop v. Ariz. Bd. of Chiropractic Exam'rs, 182 Ariz. 172, 179 (App. 1995). We must defer to the Board's chosen sanction so long as substantial evidence supports revocation and revocation was one of the permissible dispositions authorized by the statute. Bear v. Nicholls, 142 Ariz. 560, 563 (App. 1984).
¶15 The Board's decision to revoke Ogbonnaya's license based on sexual abuse/patient harm is supported by substantial evidence in the record. The Board did not arbitrarily accept all of the ALJ's findings. In fact, the Board modified a number of the ALJ's findings of fact to more accurately reflect the evidence presented at the hearing.
¶16 Ogbonnaya points to the ALJ's erroneous inclusion of an allegation of standard of care deviation regarding patient MC that was withdrawn during the hearing. He is correct that the ALJ's decision contains an erroneous finding of fact regarding this patient; however, the Board noted in its decision that this allegation had been withdrawn, and the record supports its exercise of discretion in doing so. See Ritland, 213 Ariz. at 191-92, ¶ 15. Ogbonnaya makes other claims as to the righteousness of the Board's revocation on the alleged standard of care deviations and inadequate medical records; however, because we find sufficient evidence supported the Board's decision to revoke his license on the sexual abuse and patient harm allegations, we need not address those arguments. See Bear, 142 Ariz. at 563.
¶17 Ogbonnaya's remaining contentions about alleged inaccuracies in the Board's decision invite us to reweigh the evidence and draw all inferences in favor of Ogbonnaya. We are, however, mindful of the standard of our review and decline to do so. Golob, 217 Ariz. at 509, ¶ 11.
¶18 Furthermore, the Board did not act arbitrarily and capriciously in rejecting Ogbonnaya's claim that the complaining patients were unreliable drug-seekers accusing him out of revenge or for secondary gain. Ogbannaya's argument is belied by the fact that three of the complaining patients - JH, KH, and AT - did not know one another, and that each of these patients made complaints about Ogbannaya's conduct to three separate entities before there were any media reports concerning his arrest. The Board's conclusion that the patients' testimony is credible is not "so inherently improbable" that we would reject it in our review. See In re Cutshaw, 6 Ariz. App. at 333.
¶19 Ogbonnaya argues we should not defer to the Board's decision because the ALJ did not expressly resolve the conflicting evidence in his findings of fact. During the hearing, Ogbonnaya advanced the theory that the patients had conspired to accuse him of misconduct in retaliation for being refused narcotic drugs or other desired treatment. And he pointed to the patients' histories of drug abuse and narcotic addiction in support of his argument. He also alluded to a conspiracy of retaliation among the complaining patients and claimed the Board purposely concealed this by failing to call all the patients as witnesses. He also alleged the Mesa Police Department Detective coached the witnesses and falsified her reports.
¶20 "To prevent appellate courts from having to assume a factfinder role, an [agency] must find on all the case's material issues." Post v. Indus. Comm'n of Ariz., 160 Ariz. 4, 7 (1989). As noted, the ALJ, and the Board by extension, is tasked with making credibility determinations and resolving conflicts in the evidence. The reviewing court must be able to determine the factual basis for, and the legal propriety of, the ALJ's conclusions from the decision. Id. Specific findings assist our review; however, resolution of conflicting evidence can also be implicit in the conclusions reached. Pearce Dev. v. Indus. Comm'n of Ariz., 147 Ariz. 582, 583 (1985); see also Post, 160 Ariz. at 8 (stating that the reviewing court can assume "the judge must have reached the obvious factual findings necessary to make the stated legal conclusions, and in doing so resolved any conflicts in the evidence").
¶21 Here, the ALJ's fifteen-page decision sets out sufficient findings of fact and conclusions of law so as to permit appellate review. Ogbonnaya presented numerous arguments attacking the fairness of the Board's actions; however, he failed to present evidence to support his contentions. He did not exercise his right to subpoena the witnesses he claims the Board purposely excluded. And he did not testify. See State v. Hicks, 69 Ariz. 208, 214 (1949) (civil judge can consider a party's failure to testify in weighing the evidence).
¶22 Conversely, the Board supported its case that Ogbonnaya sexually abused the subject patients with testimony from the patients and the Board's experts. The Board's decision acknowledges the vulnerable nature of the patients, whether due to opiod and narcotic drug use, or anxiety and prior sexual abuse. From the decision we can conclude that the ALJ must have accepted the testimony of the patients and the Board's experts and rejected Ogbonnaya's attack on their credibility; we will not reweigh its decision.
¶23 Ogbonnaya also claims that the Board was biased in its investigation and adjudication. "[A]djudicators are presumed to be fair and may be disqualified only upon a showing of actual bias." Pavlik v. Chinle Unified School Dist. No. 24, 195 Ariz. 148, 152, ¶ 11 (App. 1999). Where, as here, sufficient evidence supports the ALJ's decision, we find no bias. See Hourani v. Benson Hosp., 211 Ariz. 427, 434, ¶ 23 (App. 2005) (stating that plaintiff "must show that any bias or predetermination of the facts is based on an 'extrajudicial source' that results in a decision"). III. Unprofessional Conduct: Violation of a Board Order
¶24 Ogbonnaya argues his license should not have been revoked for violating the Board order because he could not complete the psychosexual evaluation. He claims the Board's order requiring him to undergo an "impossible" evaluation was unreasonable and arbitrary, and that as a result he was denied due process.
¶25 Because we agree the Board acted arbitrarily in revoking Ogbonnaya's license on this ground, we need not reach his constitutional claims. See KPNX-TV Channel 12 v. Stephens, 236 Ariz. 367, 369, ¶ 6 (App. 2014) ("[W]e need not resolve the dispute on constitutional grounds if 'other principles of law are controlling and the case can be decided without ruling on the constitutional questions.'") (quoting In re US Currency of $315,900.00, 183 Ariz. 208, 211 (App. 1995)).
¶26 An agency acts arbitrarily and capriciously if it exercises its discretion unreasonably and without "due consideration." Siegel v. Ariz. State Liquor Bd., 167 Ariz. 400, 401 (App. 1991) (quoting Petras v. Ariz. State Liquor Bd., 129 Ariz. 449, 452 (App. 1981)). In light of the ongoing criminal investigation, the Board's revocation of Ogbonnaya's license for his failure to comply with its order was unreasonable.
¶27 Ogbonnaya showed he was unable to comply with the Board's order. As a condition of his release in his criminal case, Ogbonnaya was prohibited from leaving the state. Of the three Board-approved facilities, only one, The Meadows, was located in Arizona. However, Ogbannaya was denied admittance at The Meadows because he did not fit their program criteria; The Meadows informed him that it could provide inpatient treatment, but it could not perform a psychosexual evaluation.
¶28 In addition, there was no reasonable basis for requiring Ogbannaya to submit to an evaluation within 30 days. When the Board issued the order, it also summarily suspended Ogbonnaya's license. Thus, there was no imminent threat to the public safety or welfare, because he could not practice medicine. Under these circumstances, we discern no viable reason for the Board to refuse Ogbannaya's request to stay the psychosexual order while his criminal case was pending.
¶29 The Board was aware of these facts when it proceeded with the revocation. Therefore, we conclude it was unreasonable for the Board to revoke Ogbannaya's license based on his violation of its order. State v. Ott, 167 Ariz. 420, 428-29 (App. 1990) ("If parallel proceedings would substantially prejudice the defendant's rights, however, the court should stay the civil proceedings."). Accordingly, we vacate the revocation of Ogbonnaya's license based on Board Investigation No. MD-10-1036A.
¶30 The Board's order in MD-10-0805A revoking Ogbonnaya's license is affirmed. Because we conclude the Board acted unreasonably in refusing to stay the proceedings in MD-10-1036A, we vacate the revocation on those grounds only.