The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. -€V-02-032
CAR- NOR - Ay [ adaoca
LISA E. ROCHE,
Petitioner
v. ORDER
DONALD L. GARBRECHT
MAINE BOARD OF LAW LIBPARy
LICENSURE IN MEDICINE,
DEC 17
Respondent 2002
Pursuant to M.R.Civ.P. 12(b)(6), the State of Maine Board of Licensure in
Medicine has asked this court to dismiss Lisa E. Roche’s M.R.Civ.P. 80C Petition for
Review of Final Agency Action. Following hearing, the Motion to Dismiss is Granted.
FACTS
Petitioner Lisa E. Roche, Esq. is a licensed attorney in the State of Maine. In the
present matter, she is representing herself pro se.’ Dr. Dora Mills, M.D., is a licensed
physician in the State of Maine with a Masters degree in Public Health. Dr. Mills is also
the Director of the Bureau of Health within the Department of Human Services for the
State of Maine. One of Dr. Mills’ official duties consists of compiling medical statistics
for the State. In February 2002, the Petitioner made Dr. Mills aware of discrepancies in
Maine’s 1997-1999 vital statistics for induced abortions. The Petitioner contends that
Dr. Mills did not correct these statistics or investigate the doctors who were responsible
for reporting the inaccuracies.
On April 2, 2002, the Petitioner filed a complaint with the Maine Board of
Licensure in Medicine (Respondent) against the medical license of Dr. Mills based on
* The Petitioner has provided this court with copies of her correspondence with the Respondent
in which she represents herself as the President of Women’s Investigative Network, a non-profit
corporation.
the abovementioned incorrect statistics and the possibility that the doctors reporting
these statistics were involved in double-billing or insurance fraud or both. Later that
month the Respondent informed the Petitioner that no action would be taken against
Dr. Mills because the Respondent only had jurisdiction over her duties as a physician
and not as an administrator. As a result of the Respondent's failure or refusal to act, the
Petitioner filed a Rule 80C Petition, claiming, amongst other things, that she was
harmed because she was unable to determine which medical doctors were competent,
law abiding, and in good standing with the Respondent.
DISCUSSION
This case came about because the Petitioner was dissatisfied with the way Dr.
Mills handled her request to correct abortion statistics. Hence, the Petitioner filed a
complaint with the Respondent, which has “[t]he power to license and to set standards
of practice for physicians and surgeons practicing medicine in Maine.” 32 M.RS.A. §
3269(3) (2002) (emphasis added). Consequentially, the Respondent “shall investigate a
complaint, on its own motion or upon receipt of a written complaint filed with the
[Respondent], regarding noncompliance with or violation of [the chapter concerning the
Board of Licensure in Medicine] or any rules adopted by the [Respondent].” 32
MLR.S.A. § 3282-A(1) (2002).
The Respondent contends that it had no jurisdiction over Dr. Mills’
administrative actions, which were unrelated to the practice of medicine. In addition,
the Respondent argues that the Petitioner lacks standing to obtain judicial review
because she was not a “person aggrieved” within the meaning of 5 M.R.S.A. § 11001(2)
(providing in part that “any person who is aggrieved by final agency action shall be
entitled to judicial review thereof in the Superior Court”). In other words, according to
. the Respondent, the Plaintiff was not directly and personally injured by Dr. Mills’
actions and therefore she did not have standing because her injuries were too abstract
and speculative.
The Petitioner replies that Dr. Mills was a public health physician, who was
practicing public health medicine as a State Health Officer and as the Director of the
Bureau of Health. Thus, the Respondent had jurisdiction over Dr. Mills, who evidenced
a lack of ability to discharge her duties as a physician according to the American
Medical Association (AMA) Code of Ethics. The Petitioner adds that the Petitioner had
standing because her legal rights were affected by a relevant statute and she was a
taxpayer with a direct interest in seeing that governmental funds were not wasted.
Before assessing the issue of the Petitioner’s standing, this court must first
determine whether Dr. Mills’ actions constituted the practice of medicine. At the
motion hearing before this court on November 26, 2002, the Petitioner credibly argued
that Dr. Mills used her knowledge of medicine to compile abortion statistics. In fact, Dr.
Mill’s job description was premised in part on the condition that she was a licensed
physician. 22 M.R.S.A §1 (2002). Nonetheless, this court must look to the Legislature’s
definition of the practice of medicine:
Unless licensed by the [Respondent], an individual may not practice
medicine or surgery or a branch of medicine or surgery or claim to be
legally licensed to practice medicine or surgery or a branch of medicine or
surgery within the State by diagnosing, relieving in any degree or curing,
or professing or attempting to diagnose, relieve or cure a human disease,
ailment, defect or complaint, whether physical or mental, or of physical
and mental origin, by attendance or by advice, or by prescribing or
furnishing a drug, medicine, appliance, manipulation, method or a
therapeutic agent whatsoever or in any other manner unless otherwise
provided by statutes of this State.
32 M.R.S.A. § 3270 (2002).
When construing the statute above, this court must examine the plain meaning of
the statutory language so as to give effect to legislative intent, which this court must
interpret within the context of the relevant statutory scheme. Charlton v. Town of
Oxford, 2001 ME 104, 10, 774 A.2d 366, 371. The plain meaning of the statute defining
the practice of medicine applies to diagnosing, relieving and curing human diseases,
mental or physical, and does not apply to the compiling of statistics for a governmental
agency, even if medical knowledge was used in the compilation. See 32 M.R.S.A. § 3270
(2002). Because Dr. Mills' actions related to compiling abortion statistics and did not fall
within the statutory meaning of the practice of medicine, the Respondent lacked
jurisdiction to hear the Petitioner’s complaint. Therefore, the Respondent could not
seek to discipline Dr. Mills for violating a standard of professional behavior, such as a
provision in the AMA Code of Ethics, under 32 M.R.S.A. § 3282-A(2)(F).?
For reasons mentioned above, this court agrees with the Respondent that the
Respondent did not have jurisdiction over Dr. Mills’ actions and hence there is no need
to address the issue of the Petitioner’s standing. WHERFORE this court shall GRANT
the Respondent’s Motion to Dismiss.
This order may be incorporated in the docket by reference.
Dated: December_/2-, 2002 (442,
I G. Arthur Brennan
_. _¢ Justice, Superior Court
Lisa E. Roche, Esq. - PL
Ruth E. McNiff, AAG - DEF
> 32 M.RS.A. § 3282-A(2)(F) provides: “A licensee is considered to have engaged in
unprofessional conduct if the licensee violates a standard of professional behavior that has been
established in the practice for which the licensee is licensed.”