# Vickers v. Maine State Board of Licensure in Medicine

> Superior Court of Maine · April 6, 2005

URL: https://www.frixlaw.com/law-library/cases/10808427

## Case

- **Court:** Superior Court of Maine
- **Decided:** April 6, 2005
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Donald H. Marden
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-04-67
->

/-, .

MARTYN VICKERS, M.D.,

Petitioner

DECISION AND ORDER

MAINE STATE BOARD OF
LICENSURE IN MEDICINE,

Respondent

T h s matter is before the court on petition for review of final agency action

pursuant to M.R. Civ. P. 80C.

At all times relevant to h s case, Petitioner Martyn Vickers, M.D. ("Petitioner" or

"Dr. Vickers") was employed by the United States Veterans Administration Hospital

Facility at Togus, Maine. Dr. Vickers has been licensed in Maine as a physician since

1969, and also holds a medical license issued by the Commonwealth of Massachusetts.

In 2003, Respondent Maine State Board of Licensure in Medicine ("Respondent"

or "the Board") received two separate complaints from former patients of Dr. Vickers

allegng incompetence. Pursuant to 32 M.R.S.A. § 3282-A(l), the Board requested that

Dr. Vickers formally respond to the complaints w i h n h r t y days. The Petitioner failed

to respond as required, and instead, h s attorney sent two letters to the Board alleging

that it lacked jurisdction in h s matter by virtue of the Federal Constitutional

Supremacy Clause. The Assistant Attorney General replied by noting that the Veterans

Administration Handbook urges cooperation with state licensing boards, but Dr.

Vickers still failed to respond. Thus, the Board ordered an adjudicatory hearing and

sent notice to the Petitioner and h s attorney on June 11,2004.
The Respondent held the adjudicatory hearing on July 13, 2004. By its written

decision of that date, the Board concluded that it had jurisdiction over Dr. Vickers, and

that h s failure to anslver the complaints represented a violation of professional conduct

under section 3282-A(2)(H)of title 32. The Hoard therefore ordered the Petitioner to

respond to the complaints by August 1, 2004, and also issued a letter of guidance

regarding h s responsibility to respond to its lawful requests. Further, the Board

imposed a fine of $1,500.00 for each of the Petitioner's failures to respond.

Upon the filing of petition, administrative record and briefs, the matter is now

before the court for determination.

When the decision of an administrative agency is appealed pursuant to M.R. Civ.

P.80C, t h s Court revie~vsthe agency's decision directly for abuse of discretion, errors
of law, or findings not supported by the evidence. Centamore v. Dep't of H~irna.~~
Services,

664 A.2d 369, 370 (htfe. 1995). "An administrative decision will be sustained if, on the

basis of the entire record before it, the agency could have fairly and reasonably found

the facts as it did." Seider 17. Board of Exam'r of Psychologists, 2000 ME 206, 479, 762 A.2d

551, 555 (citing CTWCO, Inc. v. Superintelrdent of Ins., 1997 W E 226, '1[6, 703 A.2d 1258,

1261). In revie~,vir~g
the decisions of an administrative agency, the Court should "not

attempt to second-guess the agency on matters falling within its realm of expertise" and

the Court's review is limited to "determining whether the agency's conclusions are

unreasonable, unjust or unlawful in light of the record." Imagineering v. Superintendent

of Ins., 593 A.2d 1050, 1053 (Me. 1991).

"When the dispute involves an agency's interpretation of a statute administered

by it, the agency's interpretation, although not conclusive on the Court, 1s accorded

great deference and will be upheld unless the statute plainly compels a contrary result."

Id. (citing Centamore v. Department of Htiman Services, 664 A.2d 369, 370 (Me. 1995)).
As Dr. Vickers sees it, the sole issue in t h s appeal is whether or not the Board

has authority to regulate the actions of a federal employee w l ~ ois acting in the

performance of his federal function. The Petitioner first notes that he is employed by

the United States Department of Veterans Affairs pursuant to 38 U.S.C. 5 7401(1). 117

addition, Dr. Vickers states that VA physicians are subject to review tvhen charges arise

that impugn their conduct or professional competence. See 38 U.S.C. 5s 7461-74b4

(2005). Further, the Petitioner asserts that the federal statutory and regulatory scheme

has been implemented to assure that federal standards are met in the performance of a

VA physician's duties.

Dr. Vickers notes that pursuant to 38 U.S.C. 7402(b)(l)(C),a VA physician is

required to be licensed in at least one jurisdiction, but not necessarily in the state in

which the physician is employed. In other words, a state license is required for

employment at the VA at Togus, but it does not have to be a Maine license. l'he

Petitioner asserts that the Board has no authority over physicians licei~sedin other

states who are practicing medicine at the VA or other federal government facilities

within the State of Maine. Dr. Vickers contends that the federal statutory scl~cme

preempts the State's ability to discipline VA physicians, and that it would be

inconsistent to have the State regulating some VA physicians but not all.

Pursuant to the Supremacy Clause of Article VI of the U ~ ~ i t States
ed Constitution,

the Petitioner contends that it would be unconstitutional for any state licensing board to

take action against a federal employee. In support of t h s proposition, Dr. Vickers cites

to Sperry v. Florida EX liel. Florida Bar, 373 U.S. 379 (1963). In that case, the Florida Bar

objected to Sperry representing clients before the United Sates Patent Otfice. Sperry

xvas not a member of any state's bar. The federal statute, however, permitted the

Co~nmissionerof Patents to authorize practice before the Patent Office by non-la~vyers,
and the Comnlissioner had in fact exercised this p a v e r . l'he Supreme Court found that

the Supreinacy Clause preempted Florida larv and its regulahon of tht. practice of la\\, in

this instance. 111 particular, the Court noted that "[a] state may not ei~forcclicensing

requirements [vhich, though valid in the absence of federal regulation, give 'the State's

licensing board a virtual power of review over the federal determination' that a person

or agency is qualified and entitled to perform certain fur-tctions, or ~ v h i c hirnpcwe upon

the performance of activity sanctioned by federal license additional conditions not

contemplated by Congress". Id. at 385 (citations omitted). Here, Dr. Vickers notes that

Congress has cauthorized the VA to establish requirements for the hiring and retention

of physicians in its clii~ics,and that these requireinents d o not involve licensure ivithin

the state in which the hospital or clinic is located. The Petitiol~erasserts that this

conflicts ~ v i t hMaine l a ~ v which
, requires the l i c e ~ ~ s u of
r e phvsicial~spracticing in this

State, and therefore the Supremacy Clause acts to preempt tl-te State l a ~ v .Because Dr.

Vickers believes that the Board was without the authority to discipline him, he contends

that tl-te fines must be vacated ar-td the letter of guidance purged from his records.

In opposition, the Board states that the Legislature has given it the po\trer to

license and set standards of practice for physicians and surgeons practicing medicine in

Maine. See 32 h.1.R.S.A. 3269(3) (2004). In addition, the Respondent i ~ o t e sthat "the

disciplinary authority of occupational licensir-tg boards is limited to enforce~nentagainst

licensees or former licensees". Golz u.Mlzilze Real Estate Coi?lrilissiotl, 1534 A.2d 1288, 1289

(Me. 1993). The Board concedes that federal law permits Dr. Vickers to practice at the

VA hospital at l'ogus under his Massachusetts license alone. Ho~vever,after applying

for and receiving a Maine license, the Board asserts that Dr. Vickers has both the right to

practice in this State, as well as d-te responsibility to follo~vthe Board's statutes and

rules. Moreover, the Respondent explains that ~ v l u l ethe federal government may
reviel'v the conduct and competence of physicians i l l its employ, the State has the sole

authority to act on an indiviclual physician's license.

In response to the Supremacy Clause argument raised by Dl-. Vickers, the

Respondent quotes from portions of Perez u. C~iizphell,402 U.S.
i54-l (1971). In I1c~.ez,thc

Supreme Court explainecl, "[d]ec:iding whether a state statute is in conflict ~vitha

federal statute ancl hence invalicl under the Supremacy Clause is essentially a hvo-step

process oi first ascertaining the construction of the tlvo statutes and then determining

the constitutional question whether they are in conflict". I d . at 1708. I n the prescnt

case, ho~vevcr,the Board points out that there is no federal statute authorizing the

licensing or disciplining of physicians. Since there is no federal statutc, the Board

contends that therc can be no conflict wit11 Statc la~'~7,
ancl hcncc, no basis for a federal

Suprmxicy Clause argument. Moreover, the Board contends that the various Maine

statutes that authorize the board to license, investigate and discipline licensees do not

"stai~das an obstacle to the accomplishment and cxcc~~tion
of the f ~ d lpurposes and

objectives oE Congress". 111. at 171'1 (citations o n ~tted).
i

In support of its position, the Respondent also cites to a clecision of the Colorado

Court of Appeals that is bascd on very similar facts. In Color(1~10
Sfnte Bonrd of n/ledical

Eruntfzillri.~v. Keviii P. Slllliuniz, 976 P.2d 885 (Colo. Ct. App. 1999), the Colorado Board

issued a complaint against a civilian physician 1\111o worked at a military reservation

hospital. In upholding the Colorado Board's revocabon of the physician's license, the

court noted that the state's Medical Practice Act permitteel thc Colorado Board to

discipline p h y s i ~ i ~ ~for
n sacts x'\lhich occurred outside thc state. h/lorcover, the court

noted that such disciplii?~"does i ~ o prevent,
t by operabon of Colorado law, practjcing

n~edicinein another juriscliction. It mt:relv restricts the use of the Colorado license

within state bour~dnries". Id. at SSS.
Similarly, the Board ~lc>tec;
that it can a n d docs routinelv discipli~leit.; licensees
r
I he Isocli7t~s, 677 A.2d ,540,543 ( l l e . 1996) (cltatlons c)ni~ttccl).' I lit. l_a\v Court

has also rccogni/ed the s ~ t ~ ~ ; l L ~
illo \vli~ch
iis preemptlo11 m'ny ;~pply:

Pre-elnnption occurs \\:hen Congress, in encictiiig a fc'dcrcnl statute, expresses ;i
clear intent to preempt stclte la\\,, when there is an outright or actual conflict
het~vccnf'edcral ;und state l;irr, where compliance: ~ v i t hboth teder,ii ;111d state law
is in effect physically impossible, ~vherethere is iiilpljcit in federal l a ~ va barrier
to state regulation, \\.here Congress has legislated cornyreliensit~ely, thus
occupving an entire tield of regulation and leciving no ronrli for the states to
supPleinent federal 1'1\v, or ~ v h e r ctlie state la\\, stands as an obstc~cleto the
accomplishment and executic>nof the full objclctives nt Congress.

Id. at 5-44(cit'ihons on11 tted). In addibc>n, the I,a\v Court has noted that ~ ~ r e e ~ i i p t iiso n

not a favored concept. S r t ~I d . at 5-43.

Cornsiclcring the aforenicntiond teclerd and State l a ~ r s ln light ot tlicse

standards, ~t 1s clear that preemption does not 'ipplq 111 tlvs casc.. 'I lie tederal statutes

cited by the Petitloner d o not express a clew intent to preempt 5tcite lar\r, nor docs the

to the actions takcii L q . the Board aganst
tederd lcgl5latiim contain an ~nipllcitbCirr~cr

Dr. Vichers. Furthcr, the kderal regulatory schen~eis not sn expansive that i t can be

said to occupy the entire field, le.,ivi~ngno room tor state oversight of its licensees that

are also federal employees. In J-act, as alludecl to above, Consre5s cxplicitlj. left the

licensing of fcder-ally er-nployed physicians to the states. 'I'liis indicates that licensing

standards and disciplinary prc~e,3uresilnplernentcd bv state Iegislcnture.;are actually in

harmony xvith the fedcral regnlatory scheme. Moreot~er, merelv bt.cci~isea \'A

physician charged ~ v i t h ~~nprofessionalconduct m ~ g h tbe subject to disciplinary

proceeding^ at the federal level c-loes not foreclose tlie State from sanctronlng the same

conduct. T11det.d~ it defies logic 1x1 suggest tllcnt Congress lett licensing cdeclsions to the
states, but ~IitiI I C ) ~ iiltcl~cit11;lt st;ltt:s also I~avc:tlic pc)i\,er to r c ~ p r i ~ ~ i ~their
l r ~ clicensees
i or

take more serious clctioil affecti~igtlieir abiliti. to practice.

For all of these re'lsons, this C'oui-t find5 tli,~tthe Si~pret~~clc-1.
C'la~iseciocs iiot

nperatc to preempt thr. State's ability to regulate and clisciplii~cits licensees at110 are

also federal emp1c)j~t.e~.

At or31 argumci~t,Petitioner's counsel poi11tt.d O L I ~thL1tultin~ntelv,Dr. Vickers

did provide a response id the FSoarcl, upon consideration of ,111 the evidcl~cc,found no

violation of the stclndLirdsof tht: practice of r11cdicii1e ancl thcrcforc. dismissed the

con~pl~iints.Counsel, theretorc, tdrSues that tlic action bv the Ro'lrd being revie~vcd

relatcs solely to the procedural 11-latter of Tlr. Vickr:rsf fCiiluret c ~rcspnltd anci [.lot cmly

does not I-eflcct directlv upon his fitness to pr'lcticc i n c d i c i ~ ~but
c also is undulv Ilarsh.

111 t l ~ ta regard, I'cti tiones argues tlla t he 112s bee11undul pilnlstiecl tor cxercisi~~g
liis

rigl~tto argue tlie federal Supremclcv Clause.

l'he Court compares this situation to that OF a person charged \vi th contempt in

the Superior C o ~ ~ \\-110
rt refuses to appear but sends counsel to c11~1llenge the

jurisdiction. He hC1san absolute right tn make that challei~gebut, it it is fc~undby the

Court to clearlv be ~ \ r thin
i its jurit;,ciiction,t l ~ cdefendall t ~~1111iot
complaiii of the p e n a l 5

for conternpt for refusal to partici13ate. Furtliermoi-el to t l ~ cc1egrc.e tlie letter of ;;uidance

and fine appear harsh, thCltis a discretionary matter \.\lithi11the blainc St'lte Board of

Licensi~rein h l e d i c i ~ ~ e1nasl11ucl-I
. as it is supported hy the evidence, the Court will not

in terferc.
l l w entrv \ \ r i l l be:

Dated: April 6 , 20U.i
Jushce, Superior Court
1 PIartyn V i c k e r s , Maine S t a t e B o a r d o f
L i c c n s u r e i n M e d i c i n e , Agency
bs
117 S t a t e House S t a t i o n , A u g u s t a

Bruce W i l l i a m s , Esq. Ruth E. M c N i f f , M G
Dept. of V e t e r a n s A f f a i r s 6 S t a t e House S t a t i o n
1 VA C e n t e r A u g u s t a , Maine 04333-0006
A u g u s t a , XE 04330

Appeal w i t h a t t a c h e d e x h i b i t s A & B , filed.

Certified record, filed. s / ~ c ~ i f M
f ,G
Notlc? of b r i e f i n g schedule mailed t o ~ t t y c .

A p p e l l a n t ' s B r i e f , f i l e d . s / W i l l i a m s , Esq.
C e r t i f i c a t e o f S e r v i c e , f i l e d . s / ~ a n f o r t h ,L e g a l A s s t .

B r i e f i n O p p o s i t i o n t o P e t i t i o n f o r Review, f i l e d . s / ~ ? c ~ i f M
f ,G

H e a r i n g h a d w i t h Hon. J u s t i c e Donald Marden, p r e s i d i n g .
B r u c e W i l l i a m s , E s q . f o r t h e P l a i n t i f f and R u t h M c N i f f , E s q . f o r t h e
Defendant.
O r a l a r g u m e n t s made t o t h e c o u r t . C o u r t t o t a k e m a t t e r u n d e r a d v i s e m e n t .
DECISION AND ORDER., NARDEN, J .
D e c i s i o n a n d O r d e r o f t h e N a i n e S t a t e Board of L i c e n s u r e i n M e d i c i n e
d a t e d J u l y 1 3 , 20Cl4, I N RE: L i c e n s u r e D i s c i p l i n a r y A c t i o n , Martyn A.
V i c k e r s , J r . , M . D . i s AFFIWIED.
C o p i e s m a i l e d t o a t t y s of r e c o r d .
C o p i e s m a i l e d t o Jleborah F i r e s t o n e , G a r b r e c t L i b r a r y a n d G o s s .
N o t i c e o f removal o f r e c o r d n a i l e d .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808427. Public record. Not legal advice.