The opinion
STATE OF MAINE SLTPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
ANDREW S. NICHOLSON, M.D.,
Petitioner
v. DECISION AND ORD$kBRECHT
DONALD L.
LAW LIRRARY
STATE OF MAINE
BOARD OF LICENSURE IN MEDICINE, JAN 16 2001
Respondent
This matter came before the court on Respondent State of Maine Board of
Licensure in Medicine's motion to dismiss. For the following reasons,. the court
GRANTS the motion.
Andrew S. Nicholson, M.D. ("Nicholson") petitioned this court to review the
State of Maine Board of Licensure of Medicine's ("Board") decision not to lift
restrictions contained in a Consent Agreement entered into by the two parties in
January 2003.
The Board first licensed Nicholson as a medical doctor in December 2000. He
specialized in family practice and was certified by the American Board of Family
Medicine in "Family Practice." On July 16, 2002, Nicholson reported to the Board that
he had been arrested by federal authorities for ordering child pornography from a sting
website operated by the United States Postal Service. On August 1, 2002, the Board
received information from Penobscot Bay Medical Center that indicated that Nicholson
had voluntarily surrendered his medical privileges at that facllity and taken a leave
from his family medical practice. In October 2002, the Board issued a complaint against
Nicholson's medical license, alleging incompetence based upon "conduct that evidences
a lack of ability or fitness to discharge the duty owed by the licensee to a client or
patient or the general public." 32 M.R.S.A. § 3282-A 2(E)(1).
On January 29, 2003, Nicholson voluntarily entered into a Consent Agreement
with the Board, pursuant to 10 M.R.S.A. § 8003(5)(B)and 32 M.R.S.A. § 3282-A, in lieu of
proceeding to an adjudcatory hearing regarding the complaint. Pursuant to the
Consent Agreement, Nicholson agreed to be on probation, to restrict his practice of
medicine to adults over 18 years of age, and to undergo a yearly psychological
evaluation. On July 13, 2004, the Board reviewed Nicholson's psychological
evaluations, along with other information, and voted to continue under the current
consent agreement with another evaluation in one year. On May 10, 2005, the Board
reviewed Nicholson's psychological evaluation, along with other information, and
again voted to continue with the terms of the consent agreement.
On March 31, 2006, the Board received a written request from Nicholson for
reinstatement of a full and unrestricted medical license. On June 13, 2006, the Board
voted and denied Nicholson's request to lift the restrictions imposed upon his license
pursuant to the Consent Agreement. On July 13, 2006, Nicholson filed h s petition for
review of agency action pursuant to M.R.C.P. 80(C). Nicholson asks this court to either
rescind the Consent Agreement for violating 32 M.R.S.A. 5 3282-A 1(A), direct the
Board to lift the restrictions contained in the Consent Agreement, or direct the Board to
provide a full adjudicatory hearing on his request.
Nicholson asserts that the Consent Agreement that he entered into is defective
because it fails to fix the period of his probation as statutorily required by 32 M.R.S.A.
§ 3282-A l(A).' Nicholson argues that because the Consent Agreement has failed to fix
the period of probation, the Board has, in effect, placed h m on indefinite probation and
permanently restricted his medical license. Nicholson asserts that h s was not the
intent of the parties, rather, the Consent Agreement was intended to give the Board
sufficient time to evaluate his treatment progress and that upon evidence of
rehabilitation, the restrictions on his medical license would be lifted. Nicholson
believes that his psychological evaluations have, from the beginning, shown that he is
not a danger to children. Therefore, according to Nicholson, the Board, in continually
voting down his request to lift the restrictions on his license, is acting contrary to the
intent of the Consent Agreement and depriving him of the opportunity to be re-certified
in his medical specialty (Family Practice).
The Board's motion to dismiss is based on its belief that the Consent Agreement,
according to 10 M.R.S.A. 5 8003(5)(B),"is not subject to review or appeal." In addtion,
the Board asserts, the express language of the Consent Agreement did not give
Nicholson the right to a hearing on whether or not the terms of the agreement should be
modified and left the decision to modify to the "sole discretion" of the Board.
Therefore, according to the Board, Nicholson, by agreeing to forego an adjudicatory
hearing in lieu of agreeing to be bound by the terms of the Consent Agreement, has
waived his right to appeal its terms and conditions.
The express language of 32 M.R.S.A. 9 3282-A 1(A) clearly states that "the board
may enter into a consent agreement that fixes the period and terms of probation." The
Board asks the court to focus on the language "the board may enter into a consent
agreement," and declare that this language has two distinct interpretations: (1) that the
"With the consent of the licensee, the board may enter into a consent agreement that fixes the period
and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the
licensee."
Board, in its discretion, can enter into consent agreements that fix the period and terms
of probation, and (2) that the Board can also, by negative implication, enter into consent
agreements that do not fix the period or terms of probation. The court cannot accept the
Board's second interpretation. The clear intent of this statutory language is that if the
Board chooses to order probation in a consent agreement, then by doing so, it must fix
the period and terms of probation. Accordingly, because the Consent Agreement
entered into by the Board and Nicholson fixes a one-year of probation, the court finds
that Nicholson's term of probation is completed.'
Nevertheless, Nicholson's primary motivation in filing this appeal is to have the
Board lift the restriction upon his license that limits his practice of medicine to adults
over 18 years of age. Nicholson argues that this restriction is contained in the Consent
Agreement as a condition of probation, the completion of wluch entitles him to the
lifting of the restriction. However, the Board argues that this restriction is separate and
distinct from probation and that it has authority to impose such restrictions without a
time limit.
The Board cites to 32 M.R.S.A. 5 3282-A (2) ("The following are grounds for an
action [by the Board of Licensure in Medicine] to . . . modify, restrict, suspend, revoke
. . . the license of an individual licensed under this chapter") and 10 M.R.S.A.
§ 8003(5)(B)("Any remedy, penalty or fine that is otherwise available by law . . . may be
achieved by consent agreement, including long-term suspension and permanent
revocation of a professional or occupational license") as authority for its right to restrict
I
In order for the Consent Agreement to comply with the statute, the court reads the language stating
"Licensee will be on probation and the Board will order a reevaluation of the Licensee after one year from
the effective date of this Agreement," to mean that Nicholson's period of probation was for a term of one
year.
Nicholson's license without a time limit and without the restriction being a condition of
Nicholson wishes to have the court parse the language of the Consent Agreement
and declare that the restriction on his medical license is incorporated into the terms of
probation and not a separate negotiated restriction that allowed lum to keep his license
with the understanding that he limit his practice to adults. As noted above, the Board
clearly has authority under the aforementioned statutes to both restrict licenses and put
licensees on probation. Therefore, the court reads the disciplinary measures under the
heading "AGREEMENT" in the Consent Agreement as separate and distinct. The court
notes that the restriction in the Consent Agreement is listed first and separately from any
other disciplinary measures in the agreement and as such should be upheld on its own.
One of the functions of a Board is to provide oversight of terms of probation
contained in Consent Agreements in order to monitor and evaluate the rehabilitative
effects of the denominated terms and conditions on the licensee and how these efforts
protect the health and safety of the public. The character of a restriction on a license
differs markedly from a term or condition of probation in that the Board has nothing to
monitor under a restriction. Therefore, the court reads subpart two under
"AGREEMENT" as containing the terms and conditions of probation (participate in
ongoing therapy with reports provided to the Board) because it envisions an oversight
role by the Board. It is these terms and conditions of probation that the Board wished to
monitor in order to assure itself that Nicholson was fit to continue practicing medicine.
In addition, the court notes that 5 M.R.S.A. 5 5302 grants licensing agencies the authority to "suspend,
revoke or take other disciplinary action against any occupational license . . . on the basis of the criminal
history record" relating to convictions in § 5301(2)(C) ("Convictions for which no incarceration can be
imposed and which directly relate to the trade or occupation for which the license or permit is sought").
Nicholson apparently made a plea arrangement regarding his arrest for ordering child pornography
whereby he pled guilty to Possession of Sexually-Explicit Materials, a Class D Misdemeanor.
Finally, there is evidence in the record that Nicholson did not anticipate that the
restriction on his license would cause him to lose his specialty certification in Family
Medicine. Nicholson Aff. ¶ 15 ("Unfortunately, when I entered into the Consent
Agreement, I did not anticipate that the age restriction would cause the American Board
of Family Medicine to rescind my dplomate status."). A fair reading of the evidence
supports the conclusion that Nicholson was facing the possibility of losing his license
due to his possession of child pornography and, faced with this prospect, he offered to
restrict lus practice to adults in order to reassure the Board that he could still be an
effective medical practitioner to that population of patient^.^ The evidence does not
support the conclusion that either the Board or Nicholson believed that this restriction
was in any way temporary or linked to the terms of his probation until after Nicholson
learned he was losing lus specialty status. The fact that Nicholson was unaware of all of
the consequences of his entering into the Consent Agreement does not make the
restriction conditional on this knowledge. As per the terms of the Consent Agreement,
the Board has the sole discretion to modify, continue, or terminate the restriction and
the court declines to disturb this authority.
The entry will be:
It is hereby ORDERED that the State of Maine Board of Licensure in
Medicine's Motion to Dismiss is GRANTED, according to the terms of this
Order.
DATED: November= 2006
Justice, Superior Court
Significantly, Nicholson's November 13, 2002 letter to the Board (prior to entering into the Consent Agreement)
states on pages 2-3 "He further realizes that any practice of medicine cannot involve children or even a family
practice." Resp. M. to Dismiss, Ex. B. In addition, Nicholson notes he is seeking employment at a VA Hospital,
and if that employment falls through "it is respectfully submitted that Dr. Nicholson should be allowed to seek a
similar type of employment-i.e., treating an adult-only population, with no contact with children." Id.
Date Filed 7 / 1 3 / 0 6 -hpp Docket No. -
AP06 44
County
Action Petitinn f n r B e s r i ~ w
PW S . - M-TI. VS.
Plaintiff's Attorney Defendant's Attorney
Bruce M. Merrill, Esq. Dennis Smith AAG
225 Commercial Street, Suite 501 Office of Attorney General
Portland, maine 04101 6 SHS
Augusta, ME 04333-0006
Date of
Entry
Petition for Review of Final Agency Action with Incorporated Memorandum of
Law, filed. s/Merrill, Esq.
Declaration of Bruce M. Merrill in Support of petitioner's Rule 80C
Petition (filed under seal)
Motion to File Certain Documents Under Seal in Connection with petitioner's
Rule 80C Petition, filed. s/Merrill, Esq.
Received and filed 07-19-06 by AAG Dennis Smith on behalf of Respondent
the Respondent's Appearance and Statement of Position pursuant to 5 M.R.S.A
51105; Respondent's Motion to Dismiss with exhibits and a draft"0rderW
for the Court; and Respondent's Motion for Enlargement of Time to File
Agency Record (to which Bruce Merrisll, Esq. does NOT object) and a draft
"Order" for the Court.
ORDER ON RESPONDENT'S MOTION TO ENLARGE TIME FOR FILING OF AGENCY RECORD,
Studstrup, J.
Copies mailed to attys of record.
Petitioner's Reply in Opposition to ~espondent's Motion to Dismiss his
Rule 80C Petition in this Matter, filed. s/Merrill, Esq.
Reply to Petitioner's Opposition to Respondent's Motion to Dismiss, filed.
s/Smith, AAG
Hearing held with the Hon. Justice Donald Marden, presiding. Tape /I732
Index 1902-4030
Bruce Merrill, Esq. for the Petitioner and Dennis Smith, AAG for the
Respondent.
Oral arguments made to the court. Court to take matter under advisement.
DECISION AND ORDER, Studstrup, J.
It is hereby ORDERED that the State of Maine Board of Licensure in Medicine
Motion to Dismiss is GRANTED, according to the terms of this Order.
Copies mailed to attys of record.
Copies mailed to Deborah Firestone, Garbrecht Library and Goss.