Opposition Brief — Mills v. Nolan

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No. 04-739

In The

Supreme Court of the Gnited States

GERALDINE MILLS, M.D.,

Petitioner,

PATRICIA A. NOLAN, M.D., M.P.H., DIRECTOR

DEPARTMENT OF HEALTH,

Respondent.

On Petition For Writ Of Certiorari To The

Supreme Court Of Rhode Island

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BRUCE W. MCINTYRE

Counsel of Record

Deputy Chief Legal Counsel

Rhode Island Department of Health

3 Capitol Hill, Room 205

Providence, RI 02903

401-222-3855

JOSEPH G. MILLER

1345 Warwick Avenue

Warwick, R! 02888

401-463-9500

Counsel for the Respondent

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF QUESTIONS PRESENTED

AND OBJECTION TO THE JURISDICTION OF

THE COURT TO GRANT A PETITION FOR A

WRIT OF CERTIORARI

1. Whether pursuant to the requirements of 28

U.S.C. § 1257(a) and the Rules of the Supreme Court of

the United States the Petitioner has demonstrated that

this Court should issue its Writ of Certiorari.

(Negative answer sought by Respondent).

The Petitioner has not met the required demonstra-

tion that the Supreme Court of the United States has

jurisdiction in this matter as is shown in the “Questions”

section of Petitioner’s brief. The mere mention of “due

process” in Petitioner’s “Questions” fails to meet the test of

demonstrating foundational support to justify jurisdiction

for the Court to grant a Writ of Certiorari.

The Respondent objects to the questions in Peti-

tioner’s brief as they fail to state accurately a representa-

tion of all the state agency administrative proceedings or

the subsequent appellate sequelae. Supreme Court Rule

14(4) states the Court’s authority to deny this Petition

because the Petitioner has failed to state with accuracy,

brevity and clarity the questions in order to apprise the

Court of the issues requiring its consideration.

Petitioner’s “Questions” are devoid of requisite sup-

port for jurisdiction. The Respondent objects to these

questions in their entirety as they include incorrect

statements that will be discussed in “Misstatements”

pursuant to Supreme Court Rule 15(2).

COUNTERSTATEMENT OF QUESTIONS PRESENTED

AND OBJECTION TO THE JURISDICTION OF

THE COURT TO GRANT A PETITION FOR A

WRIT OF CERTIORARI - Continued

Petitioner has erroneously postulated that she has

presented a federal claim to this Court. The Petitioner has

failed to demonstrate that a federal claim or federal

question exists.

Petitioner’s “Questions” include presuppositions of

incorrect and untrue factual assertions, including the

misstatement that Mr. McIntyre was a member of the

Board of Licensure and Discipline. Mr. McIntyre is not

now and never has been a member of the Board of Licen-

sure and Discipline.

There are also numerous factual assertions that are

outside and beyond the certified record of the proceedings

before the Board.

Petitioner’s questions are essentially an attempt to

retry the case before the Board under a false premise with

a generalized use of the words “due process,” and a use of

misstatements of facts and material outside of the certified

record below.

Petitioner’s questions fail to demonstrate anything

that was not exclusively cognizable under state law. In

Rhode Island, hearings before administrative agencies are

tried at the administrative agency level pursuant to the

Rhode Island Administrative Procedures Act R.I.G.L.

Chapter 42-35. On appeal, pursuant to R.1.G.L. § 42-35-15,

the record established before the state agency is certified

to the Superior Court, which conducts a review of the

record established at the administrative agency. The

ili

COUNTERSTATEMENT OF QUESTIONS PRESENTED

AND OBJECTION TO THE JURISDICTION OF

THE COURT TO GRANT A PETITION FOR A

WRIT OF CERTIORARI - Continued

administrative agency certifies that record for Superior

Court review which is government by R.I.G.L. § 42-35-

15(g).

PARTIES TO PROCEEDING

Petitioner: Respondent:

Geraldine Mills, M.D. Patricia A. Nolan, M.D., M.P.H. as

191 Squantum Drive Director of Health, Rhode Island

Warwick, RI 02888 Department of Health

401-463-8433 3 Capitol Hill

Pro Se Providence, RI 02903

Represented by:

Bruce W. McIntyre

Deputy Chief Legal Counsel

Rhode Island Department

of Health

3 Capitol Hill, Room 205

Providence, RI 02903

401-222-3855

Joseph G. Miller

1345 Warwick Avenue

Warwick, RI 02888

401-463-9500

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

SENTED AND OBJECTION TO THE JURIS-

DICTION OF THE COURT TO GRANT A

PETITION FORA WRIT OF CERTIORARI .......... i

PARTIES TO PROCEEDING .............ccssseseseeeseeeeeeeees iv

TABLE OF CONTENTS .....0..<.:.cccsccccscsssecsrcccesescessensas Vv

TABLE OF AUTHORITIES. ...............ceeeeeeeeeeeeeneeeeeees vil

TABLE OF APPENDICES ..............ccccceeeeseeeeeeeeeeeeeees xl

MISSTATEMENTS IN PETITIONER'S BRIEF ........ 1

INTRODUCTORY STATEMENT ..............::ceeeeeeeeeeees 4

FEDERAL JURISDICTION NOT SHOWN............... 6

FEDERAL QUESTIONS MUST BE RULED UPON

BY STATE COURT ................ccscccccscsscccrsssersssceesooss 8

REQUIREMENT THAT THE STATE COURT

ACTUALLY DECIDE THE FEDERAL ISSUE....... 11

ADEQUATE NONFEDERAL GROUND FOR

STATE COURT DECISION ............:ccccceseeeeeeeeeeeeees 12

FEDERAL APPLICATION OF THE RAISE OR

WAIVE RULE. ...........cccsccccscsssccrccccccsssccesssccscessconsess 13

| CONSTITUTION OF THE STATE OF RHODE

TRLANIDD.....cccsscccccccssescsceccssccsssesccsersssaccssensscsascacacesse 13

; RHODE ISLAND LAW REQUIRES SPECIFICITY

IN THE STATING OF CONSTITUTIONAL

CHALLENGEG..............csccccscsccecsscecessceecessceseessoeses 14

RHODE ISLAND LAW RE: REOPENING FOR

ADDITIONAL EVIDENCE ...............:ccceeeseeeeeeeeeeees 15

iain

TABLE OF CONTENTS - Continued

Page

RHODE ISLAND APPLICATION OF RAISE OR

WAIVE RULE. ..........cccccssccccssssccsceessscccsssssscsscsccesees 16

RHODE ISLAND STANDARD FOR REVIEW OF

ADMINISTRATIVE AGENCY DECISIONS .......... 16

COX BROADCASTING CORP. ET AL. V. COHN AS

TO JURISDICTION .............cccceeeseereesseseeeeeersnsseeees 17

CONCLUSION. .......cccccscccsssccccsscccscscccscssccsssssccsssssseees 18

Vil

TABLE OF AUTHORITIES

Page

CASES: ,

Adams v. Robertson, 520 U.S. 83, 117 S. Ct. 1028,

137 L. Ed. 2d 203 (1997)........ccccccccccssrccscrsereserreeeeees 10, 12

Anderson, Warden v. Harless, 459 U.S. 4, 103 S. Ct.

276, 74 L. Ed. 2d 3 (1982)..........cccesceeererensssenerssnenenensenees 8

Arkansas Southern Railroad Company v. German

National Bank, 207 U.S. 270, 28 S. Ct. 78, 52

L. Eid. 201 (1907) ...............ccccessssscsssccscsessrerrccssssssccncncseees 8

Baker v. Dept. of Employment & Training Board of

Review, 637 A.2d 360 (R.1. 1994)..........ccccccsceeeeeeereeenees 17

Bakery & Pastry Drivers v. Wohl, 313 U.S. 572, 61

S. Ct. 960, 85 L. Ed. 1530 (1941)...........ccccccceeeerreeeennenenees q

Bankers Life and Cas. Co. v. Crenshaw, 486 US.

71, 108 S. Ct. 1645, 100 L. Ed. 2d 62 (1988)............. 8, 10

Bayview Towing, Inc. v. Stevenson, 676 A.2d 325

(RT. 1996) ............ccccccccsccssscssssscssscssnscssssssssssscssssacsencseees 14

Beck v. Washington, 369 U.S. 541, 82 S. Ct. 955, 8

L,, Fed. 2 98 (1962) ..................ccccrrccccccccccccessssssssscsssossees 10

Board of Directors of Rotary International et ai. v.

Rotary Club of Duarte et al., 481 U.S. 537, 107

S. Ct. 1940, 95 L. Ed. 2d 474 (1987)...........ccccceeeeeeeees 9,10

A.-ve v. Scott, 233 U.S. 658, 34 S. Ct. 769, 58 L. Ed.

9141 (1914) ...0..cccrcccccccccccccesssssessccssccccccssssesessesessossscccsees 10

Caito v. Juarez, 795 A.2d 533 (R.1. 2002)..........cccceereeeees 15

Campbell v. Louisiana, 523 U.S. 392, 118 S. Ct.

1419, 140 L. Ed. 2d 551, 172 A.L.R. Fed. 597

Cardinale v. Louisiana, 394 U.S. 437, 89 S. Ct.

1161, 22 L. Ed. 2d 398 (1969).............ccccceereserereeeernennnees 9

Vili

TABLE OF AUTHORITIES -— Continued

Page

Chattman v. City of Woonsocket, 2003 R.I. Super.

LEXIS 70 (April 15, 2003) ...........:ccccssseeeseeesseeteeeeetsnenees 15

Corrente v. Town of Coventry, 116 R.1. 145, 352 A.2d

RO CRIIIOD vrccccncsncnsissericrscccsnscessonsnnsnnnerensanstecessensassnenscone 15

Cox Broadcasting Corp. et al. v. Cohn, 420 U.S. 469,

95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975)...........::ceeceeees 18

Creditors’ Service Corp. v. Cummings, 57 R.I. 291,

BOO A. B CIDBT7) ..ccccccrcnccrccccnccccdcsecsscessserccscccccsnesseesssessasecs 14

Endowment & Benev. Ass’n of Kansas v. State of

Kansas, 120 U.S. 103, 7 S. Ct. 499, 30 L. Ed. 593

CBMIETD .....ccccnesencensuncnnesssnneneesaccssennsoncisabesiantennsrnsnsscesisessaes 11

Exxon Corp. v. Eagerton, 462 U.S. 176, 103 S. Ct.

2296, 76 L. Ed. 2d 497 (1983).........:.ccccceceeeeseeeeeeeeeeeeees 12

Harding v. People of State of Illinois, 196 U.S. 78,

25 S. Ct. 176, 49 L. Ed. 394 (1904)...........cccceeeeseceeeeees 11

In Re Lamkin, No. 275, Misc. Supreme Court of the

United States, 355 U.S. 59, 78 S.Ct. 137, 2

L.. Bed. 2d 107 (1957) .........cccccccscscssccsccccccccccscessessssssecesess 12

In Re: Damien M. 819 A.2d 213 (R.I. 2003) ........... ee eeeeeeees 16

Interstate Navigation Co. v. Div. of Public Utilities,

824 A.2d 1282 (R.1. 2008) ................cccceeeeeeereereeeeeeesseseees 17

Johnston Ambulatory Surgical Assoc. v. Nolan, 755

A.2d 790 CBR.L. 2O00)..........cccccccccccccccccsccsscesccssesssccessossceces 17

Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151

L.Ed. 2d B20 (BOOB) ......ccrsrcrcrcrcssrrccccccccsccccscceresssenes 12, 13

Lynch v. People of New York ex rel. Pierson, 293

U.S. 52, 55 S. Ct. 16, 79 L. Ed. 191 (1934)............... 11

Mesolella v. City of Providence, 508 A.2d 661 (R.I.

DIED... .nconsensdunsoocunstnansanasiabanananhsbasesntennsaseinessononannceniakel 14

TABLE OF AUTHORITIES — Continued

Page

Neuschatz v. Reitsma, as Director of RI Dept. of

Environmental Management, Superior Court of

the State of Rhode Island, C.A. No. PC-02-1589,

2004 R.I. Super. LEXIS 96 (May 24, 2004)... 16

Palmer Oil Corp. v. Amerada Petroleum Corp., 343

U.S. 390, 72 S. Ct. 842, 96 L. Ed. 1022 (1952)................ 8

Plourde et al. v. Myers, 823 A.2d 1138 (R.I. 2003)............ 16

Radio Station WOW v. Johnson, 326 U.S. 120, 65

S. Ct. 1475, 89 L. Ed. 569 (1945).........cccccceeeseeeseneeeeeees 12

Roger Williams College v. Gallison, 572 A.2d 61

CTR.D. 20BO) ......ccsercccsrceercccocsccccccesscsscesceseesssesssscsscecssscecens 15

Seaboard Air Line Ry. v. Padgett, 236 U.S. 668, 35

S. Ct. 481, 59 L. Ed. 777 (1915)..........cccceseeeeeeeeeeteeeeeeees 10

Sims v. Apfel, 530 U.S. 103, 120 S. Ct. 2080, 147

Ty, Bld, Bed BO (BODO) n.cccccccccccccccssscsscrscccccsscsrescsesesesscncconees 13

Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114,

119 L. Ed. 2d 326 (1992)..................ccccceceeeseseeesseseesseeeees 13

State v. Calenda, 787 A.2d 1195 (R.1. 2002)........... eee 15

Stembridge v. State of Ga., 343 U.S. 541, 72 S. Ct.

834, 96 L. Ed. 1130 (1952)... ceccceeeeeteeeenteeeereeeeenees 12

Town of Foster v. Lamphere, 117 R.I. 541, 368 A.2d

DE CITED vs cninsasrcccastcransscsacersaneseasecssasnarescaccnsteneveassssanns 14

Waters-Pierce Oil Company v. State of Texas, 212

US. 86, 29 S. Ct. 220, 53 L. Ed. 417 (1909)............ 8

Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889, 68

L. Ed. 2d 392 (1981) .......ccccceseeeeeeetsnentttntnnneeenaneseeeeeeenes 8

TABLE OF AUTHORITIES -— Continued

Page

Yazoo & M.V.R. Co. v. Adams, 180 U.S. 41, 21S. Ct.

256, 46 L.. Ted. 416 (IGG ).....c0iscesscsserecsorcrasscsserssccasecssoessees 9

Zucht v. King, 260 U.S. 174, 43 S. Ct. 24, 67 L. Ed.

BC iio oonc ca aduiencexssabaacananecaninncbancyaienigtenanaushiaisanicnnietie 8

rs eo a

IR CU WEE CARA ea aS Iii POA BE nh Lena GAR: ete

TABLE OF APPENDICES

ADMINISTRATIVE DECISION OF THE BOARD

OF MEDICAL LICENSURE & DISCIPLINE IN

THE MATTER OF GERALDINE MILLS, MD

ee a eR REET ne estenreeenene App. 1

SUPERIOR COURT DECISION OF MR. JUSTICE

PROCACCINI IN THE CASE OF GERALDINE

MILLS, M.D. VS. PATRICIA A. NOLAN, M.D.,

MPH. DIRECTOR, DEPARTMENT OF HEALTH,

PC NO. 01-4153 203 R.I. SUPER. LEXIS 146.......... App. 15

uA De ee

MISSTATEMENTS IN PETITIONER’S BRIEF

The Petitioner in her brief has made numerous

misstatements, many of them drafted in the posture of an

assumption on Petitioner’s part as to what took place or

what happened. It is impossible because of the nature of

the Petitioner’s brief to enumerate all of them without

extending unduly this recitation of misstatements. Accord-

ingly, the Respondent, without admitting to any of the

statements made in Petitioner’s Brief, except those that

are consistent with the record reflected by the decision of

the Board and the Superior Court Justice who heard the

case at the Superior Court level, is unable to accept the

statement of facts and contentions set forth by the Peti-

tioner and does not admit to same.

The following is a partial list of misstatements occur-

ring in Petitioner’s brief which are rejected by the Respon-

dent: —

1. The assertion that statements and expressions of

prosecuting counsel, Bruce W. McIntyre, were taken as

evidence and allowed as admissions of necessary support-

ing evidence, that the meaning of the testimony was taken

out of context, and that parts of statements were deleted.

Petitioner’s Brief Page 3.

29. The assertion of “misrepresentations and viola-

tions of law.” Petitioner’s Brief Page 4.

3. Litany of events engaged in by Mr. McIntyre

resulting in deprivation of sustentative and procedural

due process of Mills from the inception of the case. Peti-

tioner’s Brief Page 4.

4. The assertion relating to motivations and the

allegation of malice. Petitioner's Brief Page 4.

5. Personal derogatory assertions against Mr. McIn-

tyre. Petitioner’s Brief Page 4.

6. Assertions alleging threatening calls to her

private office by Attorney McIntyre. Petitioner’s Brief Page

- 7. Assertions of harassments, slander and interfer-

ence with her medical practice. Petitioner’s Brief Page 6.

8. Assertions with respect to creating problems and

removing Mills from practice and destroying her business.

Petitioner’s Brief Page 6.

9. Petitioner’s assertions that McIntyre was involved

in actions of misconduct. Petitioner’s Brief Page 6.

10. Assertions relating to not being represented by

conduct and matters connected therewith and the alleged

quoted statement “I never lose in court.” appearing on

page 7 of Petitioner’s brief.

11. Assertion that the Petitioner was the subject of

myriads of violations by legal counsel of the medical board

and assertions of him being a witness. Petitioner’s Brief

Page 8. :

Mr. McIntyre never appeared as a witness in this

case.

12. Assertions surrounding the summary suspen-

sion. Petitioner’s Brief Page 9.

Petitioner had made in October 1999 anonymously a

unfounded telephone complaint to the Department of

Children, Youth, and Their Families against the parents of

patients A, B, C and D, suggesting child abuse by the

parents of patients of A, B, C and D.

13. Assertions on pages 9 and 10 concerning time-

frames for hearing and timeframe on immediate suspen-

sion. Continuances were essentially at the request of

Petitioner’s counsel and due to the fact that Petitioner

through counsel had requested discovery depositions and

that Petitioner was represented by different lawyers at

different times.

14. Assertion that at no time the administrative

hearing was conducted in accordance with the administra-

tive procedures act. Petitioner’s Brief Page 10.

15. Suggestion that Mr. McIntyre was a member of

the Board. Petitioner’s Brief Page 10 and 11.

Mr. McIntyre was never a member of the Board, at no

time participated in any adjudicative process. Mr. McIn-

tyre’s sole role was to act as prosecuting attorney on behalf

of the investigating committee. At no time did Mr. MclIn-

tyre participate in any decision-making process.

16. During the hearings the Board was represented

by a separate attorney as is clear from the record and is

referred to in the record as the hearing officer who made

the rulings during the trial concerning evidence and the

introduction of evidence and other procedural matters.

17. Assertions that there were violations of the

state’s statute by reason of Mr. MclIntyre’s role, concerning

the production of the complaint and the prosecution of the

case before the Board. Petitioner’s Brief Page 12.

yee 18. Assertion that the sole basis for the Board's

demand that Mills undergo an examination/evaluation

was the one complaint of Deborah Cinquegrana. Peti-

tioner’s Brief Page 13.

19. Assertions that the certified lower record does

not support the conclusions of the Superior Court Justice

or the Board. Petitioner’s Brief Page 14.

20. Assertions concerning the circumstances of the

release of confidential health care information. Petitioner’s

Brief Page 14.

21. Assertions and suggestions concerning the

background and basis relating to the request for a psychi-

atric evaluation. Petitioner’s Brief Page 15.

22. Assertions concerning the background and

circumstances having to do with the characterization of

medical disorder and examination of information thereof

and continuing circumstances surrounding same. Peti-

tioner’s Brief Page 15 and 16.

ARGUMENT

1. INTRODUCTORY STATEMENT

In the proceedings below, the Board of Medical Licen-

sure and Discipline (“Board”) issued an Order summarily

suspending the license of Geraldine Mills, M.D. to practice

medicine in the State of Rhode Island. Pursuant to

R.I.G.L. § 5-37-8, a hearing date was scheduled within ten

(10) days of the suspension. Petitioner’s counsel requested

a continuance and then a further continuance and then

Amended Specification of Charges were served on the

Petitioner setting forth seven counts of unprofessional

conduct in violation of R.I.G.L. § 5-37-5.1. After several

procedural motions were heard, and disposed of by the

Board acting under Chapter 5-37 of the Rhode Island

General Laws, hearings on the merits of the charges began

on August 23, 2000 and continued through December 7,

2000. Petitioner’s counsel had earlier been granted a

continuance to enable discovery which involved deposi-

tions. During the hearings the Board received 28 exhibits

and heard testimony from six witnesses: the mother and

father of female patients A, B, C and D; the mother and

father of female patients E and F; a Board certified pediat-

ric physician, who testified as an expert for the Board; and

Dr. Mills. The Petitioner did not present any witnesses to

testify on her behalf.

After the defense had rested its case and legal argu-

ment had been submitted, the attorney who had repre-

sented the Petitioner through the hearing process was

discharged by the Petitioner. The Petitioner engaged new

counsel who moved to reopen the record of the proceedings

for the taking of additional evidence. The Board conducted

a hearing on that motion on March 28, 2001, and filed a

written Interim Order denying that motion. Thereafter, on

May 24, 2001, Petitioner’s counsel filed a second motion to

reopen the proceedings to which Respondent objected.

Thereafter, on June 11, 2001, the Petitioner, acting pro se,

filed a third motion to reopen the proceedings. In its final

administrative decision of July 10, 2001, the Board noted

it had considered and denied the Petitioner's second and

third motions to reopen them for the reasons which it had

set forth in its Interim Order denying the Petitioner’s

original motion to reopen. The administrative decision of

the Board is attached hereto as part of the appendix.

Following the Board’s decision, and within the time

permitted by law, the Petitioner filed a Complaint in the

Rhode Island Superior Court pursuant to R.LG.L. § 42-35-

15 seeking judicial review of the Board’s decision. Peti-

tioner has failed to demonstrate that a federal question

was raised at this first level of judicial review in the

Superior Court of the State of Rhode Island.

The entire record of all of the administrative proceed-

ings was filed with the Superior Court as required by the

Administrative Procedures Act, R.I.G.L. § 42-35-15.

The Petitioner, through counsel, while the matter was

pending in the Superior Court, filed a petition to expand

the Certified Record that had been made during hearings

before the Board and to add additional evidence. The

Board objected. The Superior Court after hearing and

argument denied the Petition to Expand the Record and to

add additional evidence. Superior Court Justice Procaccini

denied the Petition to add additional evidence, and he

proceeded to hear the case on the merits.

Justice Procaccini wrote an extensive decision that

was filed in the Superior Court on November 13, 2003

affirming the decision and order of the Board. Mills v.

Nolan, 2003 R.I. Super. LEXIS 146. A copy of the written

decision is attached as part of the appendix in this matter.

The Petitioner then appealed to the Rhode Island Supreme

Court by Petition for Writ of Certiorari. On September 23,

2004, the Rhode Island Supreme Court denied the Peti-

tioner’s Petition for a Writ of Certiorari with a one sen-

tence order which read “The petition for writ of certiorari

is denied.” (Supreme Court No. 03-626-M.P.)

2. FEDERAL JURISDICTION NOT SHOWN.

Rule 14(g)(i) of the Supreme Court Rules require that

the federal questions be identified with a showing of the

method or manner in which the federal question was

raised and the way in which the federal question was

passed upon by the court. Further, the rule requires the

quotations of specific portions of the record or a summary

thereof with specific references to the place where the

federal question appears. This is required in order to show

that the federal question was raised timely and properly

and that the Supreme Court of the United States has

jurisdiction to review the judgment of the highest court of

the state by Writ of Certiorari.

The Petitioner in this case has failed to demonstrate

compliance with Rule 14(g)(i). The Rhode Island Supreme

Court denied the Petitioner’s Petition for a Writ of Certio-

rari with a one-sentence Order, that read: “The petition for

writ of certiorari is denied.” Rhode Island caselaw requires

that constitutional claims be stated in clear and direct

language with specific article, section, and clause in the

federal or state constitution set forth. Federal law recog-

nizes that state procedural law controls with respect to the

raising of constitutional questions for the purpose of

showing that a federal question was presented to the

highest court of the state. General assertions have been

made by the Petitioner, but the Petitioner has not demon-

strated from the certified record the presentation of a

federal question to the Rhode Island Supreme Court.

Petitioner’s request for Writ of Certiorari before this Court

lacks a factual predicate to the certified record with

respect to the raising of a federal question before the

Rhode Island Supreme Court. Petitioner has failed to

‘satisfy the requirements of U.S.C. § 1257(a) and has

utterly failed to show that a federal claim under federal

law was adjudicated by the Rhode Island Supreme Court

adversely to the Petitioner.

3. FEDERAL QUESTIONS MUST BE RULED

UPON BY STATE COURT.

This Court will not review matters alleged to be

federal claims that were not passed upon or pressed at the

state court level and it will not consider as an alleged

federal claim, a claim that was neither addressed by or

properly presented to the state court. Campbell v. Louisi-

ana, 523 U.S. 392, 118 S. Ct. 1419, 140 L. Ed. 2d 551, 172

ALR. Fed. 597 (1998). Jurisdiction of the Supreme Court

is dependent upon a showing from the record that a

federal claim was adequately presented to the state court

and that the alleged constitutional claim related to federal

law rather than to state law. Webb v. Webb, 451 U.S. 493,

101 S.Ct. 1889, 68 L. Ed. 2d 392 (1981). The alleged

federal claim must be sufficiently identified so as to fairly

apprise the reviewing court of the substantial nature of

the potential federal claim. Anderson, Warden v. Harless,

459 U.S. 4, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982).

Even if a federal question is shown to exist, the

Petitioner must further show that the federal question is

real and substantial. Zucht v. King, 260 US. 174, 43 S. Ct.

24, 67 L. Ed. 194 (1922); Palmer Oil Corp. v. Amerada

Petroleum Corp., 343 U.S. 390, 72 S.Ct. 842, 96 L. Ed.

1022 (1952); Waters-Pierce Oil Company v. State of Texas,

212 US. 86, 29 S. Ct. 220, 53 L. Ed. 417 (1909); Arkansas

Southern Railroad Company v. German National Bank,

207 U.S. 270, 28 S. Ct. 78, 52 L. Ed. 201 (1907).

The record presented to this Court must affirmatively

demonstrate that the state court had the relevant federal

issues before it. Bankers Life and Cas. Co. v. Crenshaw,

486 US. 71, 108 S.Ct. 1645, 100 L. Ed. 2d 62 (1988).

Indeed, the Bankers Life case held that at the minimum

there should be no doubt from the record that a claim

under a federal statue or the U.S. Constitution was pre-

sented in the state courts and that those courts were

apprised of the nature or substance of the federal claim at

the time and in the manner required by the state law.

Emphasis was put on the requirement that the record

demonstrate the existence of the federal claim. If the

record fails to indicate that a federal question was pre-

sented to the state court, then this Court will not take

judicial notice or infer that a federal question had been

involved in the case. Yazoo & M.V.R. Co. v. Adams, 180

US. 41, 21 S.Ct. 256, 45 L. Ed. 415 (1901); Bakery &

Pastry Drivers v. Wohl, 313 U.S. 572, 61 S. Ct. 960, 85

L. Ed. 1530 (1941). This Supreme Court, when the highest

state court has failed to pass upon a federal question, will

assume that the omission was due to want of proper

presentation in the state court unless the aggrieved party

before this Court shall affirmatively demonstrate other-

wise. Board of Directors of Rotary Instructional et al. v.

Rotary Club of Duarte et al., 481 U.S. 537, 107 S. Ct. 1940,

95 L. Ed. 2d 474 (1987).

Additionally, the United States Supreme Court will

not decide federal constitutional issues raised for the first

time on review of state court decisions. Cardinale uv.

Louisiana, 394 U.S. 437, 89 S. Ct. 1161, 22 L. Ed. 2d 398

(1969).

Rule 14.1(g)i) requires particularization of when,

where and how the federal questions were raised in the

state court. A general citation of references in an appendix

without the aforesaid specificity does not satisfy the

responsibility to point out exactly when, where and how

federal questions were passed upon or pressed before the

state court. It has been held that when the highest state

court is silent on a federal question before an appellate

court, then the Supreme Court of the United States

assumes that the issue was not properly presented. The

Petitioner has the burden of showing that the federal

claim was properly presented to the state court. Addition-

ally, the Petitioner must show that the alleged federal

claim was raised at the time and in the manner required

by state law. Adams v. Robertson, 520 U.S. 83, 117 S. Ct.

1028, 137 L.Ed. 2d 203 (1997). State procedural law

controls with respect to the manner, method and time

necessary to raise a federal question before the state’s

highest court. Beck v. Washington, 369 U.S. 541, 82 S. Ct.

955, 8 L. Ed. 2d 98 (1962).

General references to the Constitution of the United

States are insufficient to meet the criteria required to

identify a federal question. One is not permitted in the

state court to invoke generally the Constitution of the

United States. The record is required to show without

doubt that a federal claim was presented to the state court

and that the state court was apprised of the nature or

substance of the federal claim at a time and in a manner

required by state law. Bankers Life and Cas. Co. v.

Crenshaw, supra. See also Board of Directors of Rotary

Instructional et al. v. Rotary Club of Duarte et al., supra.

Merely to refer to a constitutional issue in a pleading

is inadequate if the federal question is not adequately

substantial or real or if the state court did not pass on the

alleged federal question presented in the pleading. Sea-

board Air Line Ry. v. Padgett, 236 U.S. 668, 35 S. Ct. 481,

59 L. Ed. 777 (1915). See also Bowe v. Scott, 233 U.S. 658,

34 S. Ct. 769, 58 L. Ed. 1141 (1914).

A mere reference to a constitutional issue without

more does not raise a feder2! question since this Court

may assume that the challenge was only based on a state

Constitution and not a federal question. Endowment &

Benev. Ass’n of Kansas v. State of Kansas, 120 U.S. 103, 7

S. Ct. 499, 30 L. Ed. 593 (1887).

In addition, one is not permitted to postulate that

federal questions were raised in the state court by refer-

ences to briefs and statements which are not part of the

record transmitted to this Court. Lynch v. People of New

York ex rel. Pierson, 293 U.S. 52, 55 S. Ct. 16, 79 L. Ed. 191

(1934).

4. REQUIREMENT THAT THE STATE COURT

ACTUALLY DECIDE THE FEDERAL ISSUE.

For a state court decision to merit review before this

Court, the record itself must show that the subject federal

question was either decided by the state court or that the

judgment rendered by the state court could not have been

given without deciding the subject federal question.

Harding v. People of State of Illinois, 196 U.S. 78, 25 S. Ct.

176, 49 L.Ed. 394 (1904). Further, the Petitioner on

Certiorari must show more than a federal question being

raised or one that might have been decided by a state

court rather the record must demonstrate expressly or by

necessary implication that the alleged federal question

was actually decided by the state court. Endowment &

Benev. Ass’n of Kansas v. State of Kansas, supra.

In a case where a state court has failed to expressly

pass upon a federal question, the presumption is that the

omission was due to a failure on the part of the parties to

properly present the federal question to the state court

unless the petitioner before the United States Supreme

Court can affirmatively show to the contrary. Adams uv.

Robertson, supra. See also Exxon Corp. v. Eagerton, 462

U.S. 176, 103 S. Ct. 2296, 76 L. Ed. 2d 497 (1983).

5. ADEQUATE NONFEDERAL GROUND FOR

STATE COURT DECISION.

If there is an adequate nonfederal ground for the state

court decision which independently and adequately sup-

ports the state court judgment, then such adequate non-

federal ground will preclude United States Supreme Court

review on Certiorari. Radio Station WOW v. Johnson, 326

U.S. 120, 65 S. Ct. 1475, 89 L. Ed. 569 (1945).

In a case where there is no opinion written by the

highest court of the state, and it appears that the state

court judgment might have rested upon a nonfederal

ground, then the United States Supreme Court wiil

decline jurisdiction. Stembridge v. State of Ga., 343 U.S.

541, 72S. Ct. 834, 96 L. Ed. 1130 (1952).

In the event that a state court judgment rests on one

federal ground and another ground that is nonfederal, the

United States Supreme Court has determined that it is

without jurisdiction to review the case where the nonfed-

eral ground is independent of the federal ground and the

nonfederal ground is adequate to support the judgment.

Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 2d

820 (2002).

If a petitioner fails to comply with applicable state

procedures concerning the making of a federal claim, then

such failure will be held to be an adequate state ground for

denial of certiorari. In Re Lamkin, No. 275, Misc. Supreme

aia

Court of the United States, 355 U.S. 59, 78 S. Ct. 137, 2

L. Ed. 2d 107 (1957).

The rule precluding United States Supreme Court

review of state court cases where an adequate and inde-

pendent state ground exists is applicable with equal force

whether the state-law ground is substantive or procedural.

Lee v. Kemna, supra.

6. FEDERAL APPLICATION OF THE RAISE OR

WAIVE RULE.

A party in the state court is obliged when raising a

federal issue to raise it in a timely fashion and in accor-

dance with state practice. A party failing to do so can be

said to have waived the federal question and such a waiver

will constitute an adequate independent ground of state

court decision which then constitutes a bar to review by

the United States Supreme Court. Sochor v. Florida, 504

U.S. 527, 112 S. Ct. 2114, 119 L. Ed. 2d 326 (1992). Consti-

tutional issues must be raised at the trial level, and if not

so raised, they will be deemed waived. This requirement is

sometimes referred to as administrative issue-exhaustion.

Appellate courts will not give consideration to issues not

raised below. This principle is particularly applicable to

matters involving adversarial administrative proceedings.

Sims v. Apfel, 530 U.S. 103, 120 S. Ct. 2080, 147 L. Ed. 2d

80 (2000).

7. CONSTITUTION OF THE STATE OF RHODE

ISLAND.

The Rhode Island Constitution has its own due

process clause wnich says among other things:

“«

. No person shall be deprived of life, liberty

or property without due process of law, nor shall

any person be denied equal protection of the

laws. ... “Constitution of Rhode Island — Decla-

ration of Rights — Article 1 § 2.

8. RHODE ISLAND LAW REQUIRES SPECIFIC-

ITY IN THE STATING OF CONSTITUTIONAL

CHALLENGES.

Rhode Island Supreme Court decisions do not allow

constitutional challenges to be alleged in general fashion.

See Bayview Towing, Inc. v. Stevenson, 676 A.2d 325 (R.1.

1996). There a complaint alleged some fourteen violations

of complainant’s constitutional rights complaining that a

state agency hearing officer violated complainant’s “First,

Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments

to the United States Constitution and Article 1, sections 5,

6, 10, 13, 14 and 24, and Article VI, section 1 of the Rhode

Island Constitution.” The Supreme Court of Rhode Island

noted that this kind of “machine-gun assault” is improper

and insufficient to warrant judicial consideration. The

court noted that “[t]he complaint in this case falls victim to

the deficiencies above noted and leaves barren the com-

plaint except for its request for a stay of the nonexistent

final agency decision.” The court cited Creditors’ Service

Corp. v. Cummings, 57 R.I. 291, 304-05, 190 A. 2, 10

(1937); Town of Foster v. Lamphere, 117 R.1. 541, 545, 368

A.2d 1238, 1240 (1977); Mesolella v. City of Providence,

508 A.2d 661, 669 (R.I. 1986). The Bayview court stated at

page 329:

“He or she must state in clear and direct lan-

guage which specific article, section and clause in

the Federal or the State Constitution is alleged

to have been violated. To simply state that, for

example, the fourteenth Amendment, as in this

complaint, “without also specifying whether it is

due process, privileges and immunities, or equal

protection clause which is pertinent,” is insuffi-

cient for certification.”

9. RHODE ISLAND LAW RE: REOPENING FOR

ADDITIONAL EVIDENCE.

The Rhode Island Supreme Court places serious

restrictions on a party seeking to reopen after his or her

case is closed. See Roger Williams College v. Gallison, 572

A.2d 61 (R.I. 1990). In Rhode Island the authority to

remand back to a quasi-judicial body should not be exer-

cised in such circumstances as to allow a person another

opportunity to present a case when the evidence presented

initially is inadequate. One cannot reopen on the grounds

of new evidence when the evidence was available during

the initial hearings. See Corrente v. Town of Coventry, 116

RI. 145, 352 A.2d 654 (1976). See also State v. Calenda,

787 A.2d 1195 (R.I. 2002). The Rhode Island Superior

Court has applied these rules to appeals from administra-

tive agencies. See Chattman uv. City of Woonsocket, 2003

R.I. Super. LEXIS 70 (April 15, 2003), applying Roger

Williams College v. Gallison, supra. See also Caito v.

Juarez, 795 A.2d 533 (R.I. 2002).

The Petitioner at no time sought a separate and

independent review of the rulings of the Board or the

Superior Court denying applications to reopen.

i 16

10. RHODE ISLAND APPLICATION OF RAISE OR

WAIVE RULE.

Rhode Island follows a well settled “raise or waive”

rule. This rule provides that issues which present them-

selves at trial and are not preserved by a specific objection

at trial, sufficiently focused so as to call the trial justice’s

attention to the basis for said objection may not be consid-

ered on appeal. In Re: Damien M. 819 A.2d 213 (R.I. 2003),

Plourde et al. v. Myers, 823 A.2d 1138 (R.I. 2003). The

application of this Rule has been applied by the Superior

Court of the State of Rhode Island with respect to admin-

istrative appeals from a state agency decision to the Rhode

Island Superior Court. See the multiple-page comprehen-

sive Superior Court rescript on this subject found in

Neuschatz v. Reitsma, as Director of RI Dept. of Environ-

mental Management, Superior Court of the State of Rhode

Island, C.A. No. PC-02-1589, 2004 R.I. Super. LEXIS 96

(May 24, 2004).

11. RHODE ISLAND STANDARD FOR REVIEW OF

ADMINISTRATIVE AGENCY DECISIONS.

In the State of Rhode Island, decisions of an adminis-

trative agency are first reviewable at the initial appellate

level by the Superior Court pursuant to R.ILG.L. § 42-35-

15. In the judicial review of the agency decision, the trial

justice is not permitted to substitute his or her judgment

for that of the state agency as to weight of the evidence on

questions of fact. The decisions of the trial justice are

subject to further review in the Rhode Island Supreme

Court only by way of Certiorari. When the Supreme Court

reviews the Superior Court justice’s decision it applies the

“some” or “any” test. The review is on the record and the

test is to determine if there is some or any legally compe-

tent evidence to support the Superior Court justice in his

findings. See Interstate Navigation Co. v. Div. of Public

Utilities, 824 A.2d 1282 (R.I. 2003).

When the Superior Court reviews a state agency

decision pursuant to R.I.G.L. § 42-35-15, that review is

limited to an examination of the certified record to deter-

mine if there is any legally competent evidence therein to

support the agency's decision. In conducting that review,

the Superior Court may not, on questions of fact, substi-

tute its judgment for that of the agency whose action is

under review. This is true even in a case in which the

court might be inclined to view the evidence differently

and draw inferences different from those of the agency. If

there is sufficient competent evidence in the record, the

court must uphold the agency’s decision. See Johnston

Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d

799, 805 (R.I. 2000).

The Rhode Island Supreme Court has emphasized

that the review in the Superior Court must confine itself

to a review of the record to determine whether any legally

competent evidence exists to support the agency decision.

The Superior Court cannot go outside the certified record.

Baker v. Dept. of Employment & Training Board of Review,

637 A.2d 360 (R.I. 1994). See also Johnston Ambulatory

Surgical Associates, Ltd. v. Nolan, supra.

12. COX BROADCASTING CORP. ET AL. V. COHN

AS TO JURISDICTION

The Petitioner has stated in her brief at page 2:

“This Court has jurisdiction under “fourth Cox

category” to review state court ruling if 1) “reversal

of state court on Federal issue would be preclu-

sive of any further litigation on relevant cause of

action, 2) refusal immediately to review state

court decision might seriously erode federal pol-

icy.” Cox Broadcasting Corp Cohn 420US [sic]

469, 482-83 (1975), for application of this general

jurisdiction rule.”

Petitioner’s argument is flawed in that the Cox case

neither establishes criteria for determining whether or not

a federal issue exists nor does it specify how it determines

that a federal issue is present before a state court. The

court in Cox essentially dealt with issues relating to

finality of state court judgments.

bad

CONCLUSION

Respondent requests that this Honorable Court deny

Petitioner’s request for a Writ of Certiorari. Petitioner has

not met the long standing test established by this Court

which would confer jurisdiction because Petitioner failed

to raise the necessary federal questions to either the

Rhode Island Superior Court or the Rhode Island Supreme

Court. As stated above, these questions cannot be raised in

the first instance at this level without demonstrating with

specificity the place and manner in which it was raised by

Petitioner at the state level or passed upon by the State

Supreme Court in a manner that was critical to the case.

In this matter, state law was sufficient to adjudicate the

appellate issues presented to the Superior Court.

Petitioner has sought to introduce “evidence” and

facts which would add to the certified record. This attempt

was not permitted under Rhode Island law and was

adjudicated appropriately at the state level where it was

entirely cognizable. This is an attempt to retry the factual

predicates for the administrative decision. Petitioner, after

the close of the case, sought to introduce evidence that was

available to her during the administrative hearing. More-

over, Petitioner has made misstatements relating to facts,

law and procedure.

For the foregoing reasons, Respondent respectfully

requests that this Honorable United States Supreme

Court enter an Order denying Petitioner’s Petition for a

Writ of Certiorari in the above-entitled cause of action.

Respectfully submitted,

BRUCE W. MCINTYRE

Counsel of Record

Deputy Chief Legal Counsel

RHODE ISLAND DEPARTMENT OF HEALTH

3 Capitol Hill, Room 205

Providence, RI 02903

401-222-3855

JOSEPH G. MILLER

1345 Warwick Avenue

Warwick, RI 02888

401-463-9500

Counsel for the Respondent

Dated: December 30, 2004

App. 1

APPENDIX

STATE OF RHODE ISLAND

PROVIDENCE, SC.

DEPARTMENT OF HEALTH

BOARD OF MEDICAL LICENSURE

AND DISCIPLINE

IN THE MATTER OF GERALDINE :

MILLS, MD : NO. 98187

ADMINISTRATIVE DECISION

This matter came on for hearing before the duly

designated hearing committee of the Board of Medical

Licensure and Discipline (hereinafter “Board”) on diverse

dates between December, 1999 and- March, 2001.’ The

Respondent appeared at each of the hearings and was

represented by legal counsel.

TRAVEL OF THE CASE

The Director of Health issued an Order summarily

suspending the Respondent's license to practice medicine

on October 19, 1999. A copy of the Summary Suspension is

contained in State’s Exhibit #1. The Board then set a

hearing date for October 29, 1999. Respondent’s then

‘ The Hearing Panel consisted of three members of the Board,

including Stanley J. Stutz, M.D. During the pendency of the hearing,

Dr. Stutz’ term on the Board expired as a matter of law. Howard Hall,

M.D. was designated to replace Dr. Stutz on his hearing panel. Dr. Hail

has read all of the transcripts and reviewed all of the evidence. He

participated in making the findings and conclusions stated herein.

App. 2

counsel requested a continuance until November 5, 1999.

Subsequent counsel requested a further continuance to

December, 1999. At the original hearing conducted on

December 8, 1999, Respondent’s counsel argued several

procedural motions before the Board, all of which were

denied in a written Decision and Order dated December

21, 1999. Thereafter, the matter was further continued at

the request of Respondent to enable her counsel to engage

in discovery. The hearing reconvened in earnest on August

23, 2000 and continued through December 2000, after

which time counsel for the Respondent and the State

submitted lengthy memoranda.

After the closure of evidence and submission of legal

argument, the attorney who had represented the Respon-

dent through the hearing process was fired by Respondent.

Replacement counsel moved to re-open the record of the

proceedings for taking additional evidence. A hearing on

that motion was conducted on March 28, 2001. The Board

filed a written Interim Order denying the Motion on May

1, 2001. Subsequently, on May 24, 2001 Respondent’s

counsel filed a second Motion to Re-open the proceedings

to which the State filed an Objection. Thereafter, in

advance of any decision on the Second Motion to Re-Open,

Respondent, acting pro se, on June 11, 2001 filed a third

Motion to Re-Open.

RULINGS ON RESPONDENT'S SECOND

AND THIRD MOTIONS TO RE-OPEN

The Board has considered Respondent’s Second and

Third Motions to Re-Open proceedings. For the reasons

elucidated in the Board’s Interim Order denying Respon-

dent’s original Motion to Re-Open Proceedings, the Board

App. 3

hereby denies both motions without the necessity of

further argument by the parties.

FINDINGS OF FACT

Via Count One of the Amended Specification of

Charges, the Respondent is alleged to have been guilty of

unprofessional conduct in the practice of medicine by

virtue of having filed an application for staff privileges

with Rhode Island Hospital, which application contained

false, errcneous and misleading information concerning

Respondent’s credentials.

In support of this allegation, the State presented

testimony from the Respondent as well as information

obtained from the Rhode Island Hospital Staff Credentials

Committee. The report of the RIH Credentials Committee

noted several discrepancies in the information provided to

it by Respondent (State’s Exhibit 12). Among other things

the report notes that the Respondent had indicated on her

application for staff privileges (State’s Exhibit 10) that she

had been enrolled at Case Western University in a

“Ph.D/MD” program. Under questioning by the Creden-

tials Committee, Respondent admitted that she had only

attended “medical school” classes as part of her graduate

pathology program, but that at no time was she enrolled in

Case Western’s Medical School nor matriculating toward a

medical degree. Next, the Credentials Committee took

issue with Respondent’s repetitious claims of having been

“admitted” to both the Yale and Brown medical residency

programs. As evidence of her acceptances at Yale and

Brown, she provided the Committee with letters addressed

to her from The Memorial Hospital in Pawtucket, RI and

the Hospital of St. Raphael in New Haven, CT. Both of

App. 4

these letters (State’s 8 and 9) denote that the facilities had

planned to rank her in their “matching” of residents with

their residency programs. Upon further investigation by

the Credentials Committee, it was learned that Respon-

dent had never been “admitted” to either program and had

not been at Brown or Yale at all. Respondent’s application

also referenced her internships at St. Thomas Hospital

and Winthrop University Hospital. She advised the Cre-

dentials Committee that she had voluntarily left each of

those hospitals after serving only one (1) year of a two (2)

year internship. In fact, the Respondent was not offered a

second year in either program. The record of Respondent's

application proceedings (State's Exhibit #12) and her

hearing before the Credentials Committee at Rhode Island

Hospital (State’s Exhibit #13) point out the inaccuracies

contained in the materials Respondent forwarded and the

statements she made to the Committee. Respondent's

attempts to explain her misstatements before the Commit-

tee, and on the record of the within hearing, are at best

convoluted and inconsistent. It is clear that Respondent

provided false information to the Rhode Island Hospital

Credentials Committee in an effort to gain staff privileges

at the hospital. It is further clear that the Rhode Island

Hospital Credentials Committee denied Respondent's

application for staff privileges, whereas Respondent has

steadfastly maintained on the record of this proceeding

that she withdrew her application for staff privileges.

Count two of the amended specification of charges

alleges that the Respondent was guilty of unprofessional

conduct in that she was incompetent and negligent in the

practice of medicine. Further, it is alleged that she was

guilty of willful misconduct in the practice of medicine, all

in connection with the treatment of four female patients.

App. 5

In support of its charge, the State alleges that Respondent

refused to conduct her clinical practice in an office setting

and advised the patients and their parents that the offices

were contaminated, as were their patient records. The

Respondent delivered clinical care-to the patients in the

yard of her office building on Warwick Avenue in Warwick,

RI and, alternatively, at the homes of the patients. The

Respondent testified at great length about this charge.

She related to the Board that pollutants and contaminants

in the various buildings where she maintained her offices

had caused her to move her office location four (4) times

from 1994 to 1999. She testified that her first office was

located at 65 Jefferson Boulevard. She had to move from

that building because it had been contaminated by carpet-

ing and glue used in it. She re-located to 770 Reservoir

Avenue in 1996, taking all of her office/medical equipment

with her. She advised the Board that all of her equipment

and her patient records had been contaminated at the

Jefferson Boulevard address, and that they in turn con-

taminated the Reservoir Avenue office. The Respondent

next moved to 107 Warwick Avenue in 1998. She testified

that premise was contaminated by an underground oil

spill which had occurred prior to her purchase of the

building. She could not stay there either, so she purchased

a house which included her office at 1025 Warwick Avenue

in 1998 or 1999. After a short time at that location, she

determined that building was also contaminated as a

result of its prior use as a hairdressing salon. She refused

to enter the building after determining that it was toxic. It

is from that location that the Respondent admits to having

treated the children in her yard and in a vehicle parked

outside the building.

App. 6

The Respondent claims to have contacted the De-

partment of Health (DOH), Poison Control, the Depart-

ment of Environmental Management (DEM), and the

Environmental Protection Agency (EPA) to investigate the

various buildings. She told the Board that both DEM and

the EPA had confirmed the existence of contaminants. In

the case of one of the buildings, the Respondent testified

that DEM advised her the dental office on the floor above

her office was dripping radiological material through the

ceiling onto her floor, and that she should not utilize the

floor beneath the dentist’s office. She also testified that she

had all of her patient records tested by 3M Company for

toxicity, and that all of the records were found to be

contaminated.

The Board asked Respondent to produc copies of the

DEM, DOH, Poison Control, EPA and 3M records. None

were forth coming. Nor were any witnesses called to

substantiate Respondent’s statements. Respondent's

testimony with respect to the alleged findings by the

aforementioned agencies was not credible. Respondent

admitted in her testimony that she began seeing patients

outside the office. In one case, she had the patient meet

her at the St. Joseph Hospital Emergency Room and

examined her there. In another case, she directed the

patient to meet her in the St. Joseph Hospital parking lot,

and «he examined and treated that child in the parent’s

vehicle while it was parked in the hospital parking lot.

Respondent informed the Board that she no longer has

staff privileges at St. Joseph Hospital.

Respondent admitted to the Board that on or about

July 30, 1999, she saw two adolescent patients, Patient A

and Patient B, and their mother at Respondent’s office.

Respondent advised them they could not go into the

App. 7

building because it was contaminated. She advised them

that she suspected pesticide poisoning or contamination

from fire extinguishers. She stated that fire personnel had

tested the extinguishers and had found nothing wrong

with them. Respondent testified that she told the mother

and her patients that it was necessary for her to treat the

children in her yard, as she could not go in the building.

She advised them that she had been hospitalized with

blurred vision, nausea and an inability to swallow. In the

record of this proceeding, the Respondent admitted she

was never hospitalized, nor did she present any medical

record or report to substantiate any treatment she may

have received due to her “poisoning”.

The Respondent advised the Board that she did not

contact any regulatory agency with respect to conditions at

the house/office at 1025 Warwick Avenue inasmuch as she

had sulicited the assistance of several agencies concerning

the other buildings and none of them did anything. She

testified that she told her patients that she had made

complaints about the building to Blue Cross/Blue Shield,

but that no one there cared that there were “deadly

smells” in the office. On the occasion of the July 30th lawn

visit, the Respondent refused to enter the building on

Warwick Avenue. She sent patients A and B inside to see

her assistant for vital signs, weight and, in the case of one,

a urine sample. She then met the patients in the yard for

examination in her assistant’s van. The Respondent

conducted blood tests in the yard. One of the patients was

a teenager. While out in the yard, the Respondent, as part

and parcel of her examination, within earshot of the

mother and the other sibling, conducted an oral interview

into the patient’s use of cigarettes and alcohol, feelings of

depression, sexual activity and suicide ideation. While she

App. 8

was doing this, jets were flying overhead in and out of T.F.

Green Airport. The Respondent commented to the parent

and her patients that they were “dropping jet fuel” on her.

The patient’s mother testified in the hearing before the

Board that this comment was made in all seriousness and

that the Respondent seemed genuinely frightened of the

jet fuel. Respondent advised the parent on that date that

she was never going to enter the office building again, that

she had made up her mind. She said she would begin

making housecalis as a routine and she told them she was

going to set up a tent in the yard to facilitate her treat-

ment of patients. Following this incident, the parents of A

and B, who had two other children under Respondent’s

care, sought medical assistance for their children else-

where and made a complaint to the Department of Health

concerning Respondent's activities. The mother of patients

A and B explained that on July 30, 1999 the Respondent

was acting and speaking to her and the children in a

bizarre fashion. She did not want to escalate the problem,

so she saw the visit through. On that date, Respondent

told the parent that Blue Cross/Blue Shield and the

Department of Health were involved in a conspiracy

against her. The mother reported this strange behavior to

the Department of Health.

The Respondent testified before the Board that in

August of 1999 she administered +/-50 chicken pox vaccine

shots to children in the back yard of 1025 Warwick Ave-

nue. She stated that her assistant would hand the vaccine

out the window to her, and that she vaccinated the chil-

dren in the yard. She informed the Board that “It’s very

private back there.”

Both of Patient A and B’s parents testified as to

harassment they endured following the making of their

— LL = - 4

App. 9

complaint to the Board. The parents testified to receiving

“hang-up calls”, many of them, immediately after their

contact with the Department. On one occasion, the Re-

spondent called the parent husband in the middle of the

night. She was angry at them for reporting her activities

to the Department. She because [sic] hysterical in the

conversation, screaming at the parent. He testified that he

told the Respondent that it was opinion [sic] that she

needed medical help and they (the parents) were trying to

see that she got it.

The parent is a case worker at the Department of

Children, Youth & Families (DCYF) where he investigates

complaints of child abuse. He testified that his supervisor

received an anonymous complaint regarding child abuse

alleged to be existing in their home. The complainant

alleged that child abuse had been going on over a period of

many years from when the children were infants into their

teens. The parent was thoroughly investigated as a result

of the complaint, and all charges proved unfounded.

However, the parent did suffer the indignity of being

investigated for the very thing he seeks to prevent.

In her examination, the Respondent admitted that it

was she who had anonymously reported the parents to

DCYF. She did not seem to know that DCYF keeps re-

cordings of anonymous calls. The tape of her call to DCYF

was played at the hearing, from which the Respondent’s

voice was easily recognizable. The Respondent did not

make the call to DCYF until after she was notified that

the parents had filed a complaint with the Department of

Health. She claimed in her testimony before the Board

that she only began to suspect child abuse when she

reviewed the children’s medical records in conjunction

with responding to the complaint leveled against her. In

—App. 10

describing her suspicions of abuse, she relied on the

children’s earlier medical records which she had obtained

from former treating physicians. In coming to her conclu-

sion that the children were victims of abuse, Respondent

was particularly adamant about the fact that the parents

had failed to inform her that one of the children had a

“near SIDS” episode as an infant. That child, when Re-

spondent began treating the children, was an adolescent,

and at the time of the complaint, had reached her late

teens.

The Respondent’s inordinate attention to the child’s

experiences as an infant, given that the child had now

become a young adult, are inexplicable. In her testimony

before the Board, it is fair to say that the Respondent

seemed obsessed with the “near SIDS” incident and the

family’s characterization of it as an “Acute Life Threaten-

ing Event” (ALTE) and/or “apnea”. The Respondent dis-

agreed vehemently with the expert presented by the State

who indicated that the terms “near SIDS” and “ALTE”

were synonymous. The expert also testified that nothing

contained in the charts of these children would cause him

to suspect child abuse.

The State’s attorney then inquired of Respondent

whether she was aware of the statutory reporting re-

quirements for physicians suspecting child abuse. The

Respondent knew that she was required to identify herself

to authorities and file a written report. She testified that

she made the anonymous call and did not follow-up with

anything written because she was under the “Summary

Suspension” order and was not acting as a doctor at the

time.

App. 11

It is clear that Respondent is guilty of Counts Two,

Three and Four of the Amended Specification of Charges.

Count Six relates to yet another family with children

who were treated by Respondent. In the case of one of the

children, Respondent told the parents that she suspected

the child to be suffering from “Williams Syndrome” which

is characterized by dwarfish or elfin features and a “fail-

ure to thrive”. Subsequent evaluation by another physi-

cian revealed nothing wrong with the child. The parents in

this family determined to seek a relationship with another

pediatrician for their children. Their testimony, supported

by the Respondent’s acknowledgement of same, was that

Respondent advised the parents that their children’s

records could not be transferred until all fees were paid for

services rendered. The family had not received any bills

prior to their request for records, and they had health

insurance coverage for the children. Copies of Respon-

dent’s billings to the family were introduced into evidence.

The services rendered and amounts due as shown on the

“bills” were incomprehensible to the Board. The physician

member of the Board made extensive inquiry of Respondent

on the record in an effort to obtain some understanding of

Respondent’s billing practices. The Board concluded that

the so-called billings were unintelligible to practitioners, let

alone patients and their families. Respondent-did not turn

over the patients’ records to the family until the Depart-

ment of Health intervened upon receipt of the parents’

complaint in 1998.

Count Five alleges that Respondent has been guilty of

unprofessional conduct and/or misconduct by reason of

impairment which has adversely affected the ability of

Respondent to conduct her practice in a professional

manner.

App. 12

Pursuant to Section 5-37-5.2(e)(2), the Investigating

Committee of the Board may exercise the authority af-

forded by Section 5-37-1.3(10) to assist the Board if, in the

opinion of the Investigating Committee, a licensee is

suffering from an impairment.

Following the receipt of the aforementioned complaint

in 1998, the Director of Health appointed an Investigating

Committee of the Board to review Respondent’s status.

The Investigating Committee reviewed the pertinent

materials and interviewed Respondent and potential

witnesses. The Investigating Committee determined that

there was reason to believe that the Respondent was

suffering from an impairment, as a result of which she

was unable to conduct her practice professionally. In

accordance with Section 5-37-1.3(10), the Committee

directed that Respondent submit to a psychiatric examina-

tion. Over the course of approximately one year between

September 1998 and September 1999, the Respondent

initially agreed with, then disputed, the necessity for an

examination. In the meantime, the Board had received the

second complaint. Following the Board’s investigation of

that complaint, the Board received the information rela-

tive to Respondent’s filing of the false report with DCYF

against the second complainants. As a result of Respon-

dent’s refusal to undergo an evaluation, and the Director’s

determination that her continuation in practice posed a

substantial-risk to patients, the Director issued the Sum-

mary Suspension on October 13, 1999. In her testimony on

the record, the Respondent alternately stated that she did

not care for the psychiatrist chosen for the evaluation by

the State, that she had chosen her own psychiatrist who

didn’t complete the evaluation and with whom she could

not get along and/or that she had been evaluated and was

App. 13

presently treating with a psychiatrist. No medical records

were furnished to support that Respondent had ever

submitted to the evaluation as requested by the Investi-

gating Committee. The Board must conclude that the

Respondent has failed to comply with the directive of the

Investigating Committee that she submit to a psychiatric

evaluation in order to determine her competency to prac-

tice medicine.

CONCLUSION

Count Seven goes to the totality of the conduct and

behavior alleged in prior counts. The cumulative weight

afforded to all of the charges leads to the inescapable

conclusion that Respondent is unfit to practice medicine in

a professional manner at this time. The Board has the

statutory authority to mandate that Respondent submit to

physical and/or psychiatric examination as a condition to

her continuation in the practice.

ORDER

1. That after hearing on the merits, Respondent’s license

to practice medicine is hereby suspended indefinitely.

2. That Respondent is ordered to submit to physical and

psychiatric examinations to be conducted by medical

professionals who are pre-approved by the Board.

3. That upon completion of the aforesaid examinations,

the Respondent may apply for reinstatement other medi-

cal license provided the medical reports indicate that she

is fit for practice and is in compliance with any treatment

regimen proposed by her physicians. Whether Respon-

dent’s license is reinstated shall be left to the sound

App. 14

discretion of the Board. Based upon the evidence pre-

sented, the Board may deny reinstatement or permit

reinstatement upon such terms and conditions as are

deemed necessary by the Board at that time.

Entered this 10th day of July, 2001.

BOARD OF MEDICAL LICENSURE AND DISCIPLINE

SALLY JANE THIBODEAU, Ph.D. MEMBER

MEREDITH COSTA MEMBER

HOWARD HALL, M.D. PHYSICIAN MEMBER

/s/ Sally Jane Thibodeau, Ph.D.

For the Hearing Committee

Assented to as to content and form.

/s/ Patricia a. Nolan, MD, MPH

PATRICIA A.NOLAN, MD, MPH

DIRECTOR OF HEALTH

CERTIFICATION

I hereby certify that I have mailed a copy of the within

ADMINISTRATIVE DECISION to Damon D’Ambrosio,

Esquire, 663 Admiral Street, Providence, RI 02908 and a

copy was also mailed to Geraldine Mills, M.D., 191 Squan-

tum Drive, Warwick, RI 02888 on this 11th day of July,

2001.

/s/ Carole Allsworth

App. 15

GERALDINE MILLS, M.D. VS.

PATRICIA A. NOLAN, M.D., M.P.H., DIRECTOR,

DEPARTMENT OF HEALTH

PC NO. 01-4153

SUPERIOR COURT OF

RHODE ISLAND, PROVIDENCE

2003 R.I. Super. LEXIS 146

November 13, 2003, Filed

JUDGES: PROCACCINI, J.

OPINION BY: PROCACCINI

OPINION: DECISION

PROCACCINI, J. Before this Court is an administra-

tive appeal from a July 10, 2001, decision by the Rhode

Island Department of Health, suspending Geraldine

Mills’s (referred to in this decision as “Appellant” or “Dr.

Mills”) license to practice medicine for an indefinite period

of time. The Appellant seeks reversal of the Board of

Medical Licensure and Discipline’s decision suspending

her license. Jurisdiction is pursuant to R.I. Gen. Laws

1956 § 42-35-15.

1. Case Travel and Facts

On October 19, 1999, the Director of Health issued an

Order summarily suspending Dr. Mills’s license to practice

medicine in Rhode Island. The Board of Medical Licensure

and Discipline set a hearing date for October 29, 1999,

which, upon Dr. Mills’s counsel’s request, was continued

until November 5, 1999. Subsequent counsel for Dr. Mills

requested a further continuance until December of 1999.

On December 1, 1999, Dr. Mills received the Board’s

App. 16

Amended Specification of Charges charging Dr. Mills with

seven counts of unprofessional conduct, in violation of R.I.

Gen. Laws § 5-37-5.1.

After receiving the Amended Specification of Charges, Dr.

Mills’s counsel proceeded to file several procedural mo-

tions, which were heard at the original hearing on Decem-

ber 8, 1999. On December 21, 1999, the Board issued a

written Decision and Order denying all of Dr. Mills’s

motions. On this same date, the Board granted Dr. Mills’s

request for a continuance to enable her counsel to engage

in discovery.

Hearings on this matter reconvened on August 23, 2000

and continued through December 7, 2000. The dates of the

hearings were as follows: August 23, 2000; September 21,

2000; October 5, 2000; October 19, 2000; and December 7,

2000. During the hearings, the Board received 28 exhibits,

and heard testimony from six witnesses: the mother and

father of female Patients A, B, C, and D; the mother and

father of female Patients E and F; Dr. Eden, an expert in

the field of pediatrics; and Dr. Mills. Dr. Mills did not

present any witnesses to testify on her behalf.

On July 10, 2001, the hearing panel rendered its decision

to suspend Dr. Mills’s license indefinitely. The Board’s

decision provided that Dr. Mills can apply for reinstate-

ment after she has undergone a physical and psychiatric

examination by medical professionals pre-approved by the

Board, and the reports from this examination indicate that

she is fit for practice. On July 11, 2001, the Director of

Health approved the Board’s decision. Dr. Mills filed an

administrative appeal of that decision on August 9, 2001,

pursuant to R.I. Gen. Laws § 5-37-7. The appeal of that

decision is now before this Court.

App. 17

The facts of this case are organized in terms of the counts

Appellant was charged with during the proceedings. On

August 23, 2000, the Board heard testimony from the

Appellant. On September 21, 2000, the Board heard

testimony from the parents of Patients A, B, C, and D, and

the Appellant. On October 5, 2000, the Board heard

testimony from the parents of Patients E and F. On Octo-

ber 19, 2000, the Board heard testimony from the Appel-

lant and Dr. Eden. On December 7, 2000, the last day of

the hearings, the Board heard extensive testimony from

the Appellant on direct examination. The pertinent testi-

mony of each of the aforementioned witnesses is recounted

in relation to the respective counts contained in the

Amended Specification of Charges.

Count One

Count One charged Dr. Mills with unprofessional conduct,

in violation of R.I. Gen. Laws §§ § 5-37-5.1, 5-37-5.1(8) and

5-37-5.1(19), for submitting an application to the Rhode

Island Hospital Credentials Committee in 1993 that

contained false, erroneous, and misleading information

regarding her credentials. The Board reviewed five exhib-

its relating to this charge, including the following: the

report of the Rhode Island Hospital Credentials Commit-

tee regarding information provided to it by Dr. Mills

(State’s Exhibit 12); Dr. Mills’s application for staff privi-

leges to said hospital (State’s Exhibit 10); letters of admis-

sion to both the Yale University (Yale) and Brown

University (Brown) residency programs, provided by Dr.

Mills in support of her application (State’s Exhibits 8 and

9); and the record of Dr. Mills’s hearing before the Rhode

Island Hospital Credentials Committee (Exhibit 13).

App. 18

Additionally, the Board heard testimony from Dr. Mills

relating to this charge.

Upon review of the aforementioned exhibits, the Board

concluded that there were several discrepancies between

the information Dr. Mills provided on her application for

staff privileges to Rhode Island Hospital and her actual

credentials. These inaccuracies were particularly apparent

during Dr. Mills’s hearing before the Credentials Commit-

tee. During the hearing, it was revealed that many of the

credentials listed by Dr. Mills on her application were

broad overstatements. Dr. Mills’s application indicated

that she was enrolled in a “Ph.D./MD” program at Case

Western University, that she had been admitted to both

the Yale and Brown medical residency programs, and that

she voluntarily left her internships at St. Thomas Hospital

and Winthrop University Hospital. Upon questioning by

the Committee, Dr. Mills admitted that she had only

attended medical school classes at Case Western Univer-

sity as part of her graduate pathology program and was

never actually enrolled in their medical school. Upon

further investigation by the Committee, it was also re-

vealed that Dr. Mills was never actually admitted to the

Yale and Brown residency programs, and that she was not

offered a second year to continue her internships at St.

Thomas Hospital and Winthrop University Hospital. The

Board concluded that Dr. Mills’s efforts during the hear-

ings to clarify these discrepancies were “at best convoluted

and inconsistent.” (Administrative Board Decision at 4.)

Furthermore, the Board found Dr. Mills’s steadfast asser-

tion of having voluntarily withdrawn her application from

the Rhode Island Hospital Credentials Committee to be

disturbing, when it was clear that the hospital denied her

App. 19

application for staff privileges. (Administrative Board

Decision at 4.)

Count Two

Count Two charged Dr. Mills with unprofessional conduct,

in violation of R.I. Gen. Laws §§ § 5-37-5.1, 5-37-5.1(18),

and 5-37-5.1(19), for her incompetent and negligent treat-

ment of female Patients A, B, C, and D, her inappropriate

communications with the parents of said patients, and her

willful misconduct in the practice of medicine relating to

this family. In relation to this charge, the Board heard

testimony from the parents of Patients A, B, C, and D, Dr.

Eden, an expert in the field of pediatrics, retained by the

Board, and the Appellant herself. At the time proceedings

began Patient A was 19 years of age, Patient B was 17

years of age, Patient C was 15 years of age, and Patient D

was 5 years of age.

The mother of Patients A, B, C, and D (herein referred to

as Witness One) testified that she began taking her

daughters to see Dr. Mills, when her youngest daughter

was born. (Tr. of September 21, 2000 at 5.) Witness One

testified that during the time she was using Dr. Mills as

the family pediatrician, Dr. Mills moved her office to four

different locations. (Tr. of September 21, 2000 at 5-7.)

Witness One further testified that at the third office

location on Warwick Avenue, Dr. Mills treated Patients B

and D outdoors. When Witness One arrived with Patients

B and D for their scheduled appointments to get physicals,

Dr. Mills was standing in the driveway and informed them

that the office was contaminated. Witness One testified

that Dr. Mills conducted the initial examination of Pa-

tients B and D on the front lawn towards the street and

enamel

App. 20

then requested that Witness One take Patient D inside for

a urine sample. When Witness One returned with Patient

D, the remainder of the physical was conducted on the

front lawn. Witness One further stated that during this

same visit, Dr. Mills asked Patient B whether she was

sexually active, leaving Patient B mortified. According to

Witness One, Dr. Mills proceeded to take blood samples

from Patient B in her medical assistant’s van, before

deciding that it was too hot in the van, at which time Dr.

Mills decided to take Patient D’s blood outside on the

grass. Witness One further testified that during this same

visit, Dr. Mills pointed to an airplane flying over them and

made a comment to the effect that the plane was dropping

jet fuel.

Relating to this same charge, the father of Patients A, B, C

and D, herein referred to as Witness Two, testified about

his encounters with Dr. Mills. Witness Two stated that he

personally brought his daughters to see Dr. Mills on

approximately four occasions and was concerned by the

frequency with which Dr. Mills was switching office

locations. According to Witness Two, his concern regarding

Dr. Mills’s treatment of his daughters was heightened

when he learned that Dr. Mills treated Patients B and D

outdoors at the Warwick Office. (Tr. of September 21, 2000

at 61-63.)

Also providing testimony relating to this charge was

Dr. Eden,’ who stated that in the standard practice of

! Dr. Eden has been practicing pediatrics since 1988 and at the

time of the proceedings had * zen licensed in Rhode Island for six years.

He attended Boston University School of Medicine, and upon gradua-

tion came to Rhode Island as a pediatric resident and spent three years

at the Rhode Island Hospital, Brown University Program. Upon

(Continued on following page)

App. 21

medicine it would not be acceptable to practice medicine

outdoors, noting that privacy and security are factors to be

taken into consideration. (Tr. of October 19, 2000 at 35.)

Dr. Eden explained that assuming there was a problem in

a pediatrician’s office building preventing its use, standard

practice would require that the physician secure a private

environment to protect the sanctity of the doctor/patient

relationship. (Tr. of October 19, 2000 at 35.) According to

Dr. Eden, barring a medical emergency, it would be more

appropriate to cancel an examination than to conduct an

examination outdoors. Dr. Eder: clarified that in standard

practice, a camp or school physical does not constitute a

medical emergency. Additionally, Dr. Eden was firm in his

testimony that conducting an examination in a car outside

the physician’s office stretched the bounds of propriety,

barring an absolute medical emergency. Dr. Eden ex-

plained that such significant deviations from standard

practice in the performance of medical examinations

demonstrate inappropriate judgment, a sufficient reason

for a pediatrician’s disqualification. (Tr. of October 19,

2000 at 65.)

In response to these allegations, Dr. Mills testified about

her treatment of Patients A, B, C, and D. Dr. Mills’s

testimony during the proceedings substantiates that she

conducted an examination of Patients B and D outdoors

because she believed her office to be contaminated. Dr.

Mills did not dispute any of the facts relayed by Witness

One regarding the outdoor examination of Patients B and

completion of his pediatric residency training, Dr. Eden worked in

Brockton Hospital for two years as a pediatrician. Since 1994, Dr. Eden

has worked as the founding member of Children’s Medical Group, a

pediatric practice on the campus of Rhode Island Hospital.

App. 22

D. Furthermore, Dr. Mills admitted that she sent Patient

D inside the office for a urine sample when she herself

would not enter the office because she believed the office

contained deadly toxins. In totality, Dr. Mills’s testimony

relating to this charge revealed that all of the information

relayed by the parents of Patients A, B, C, and D with

respect to these patients’ medical care were accurate.

Count Three

Count Three charged Dr. Mills with unprofessional con-

duct, in violation of R.I. Gen. Laws §§ § 5-37-5.1, 5-37-

5.1(18), and 5-37-5.1(19), for failing to maintain complete

and accurate records for Patients A, B, C, and D, and for

reporting false, misleading, and irrelevant information on

said records. Witness One and Witness Two, as well as the

Appellant, provided testimony in relation to this charge.

During the hearings, Witness One testified that all of her

daughters’ previous medical records from other doctors

and hospitals were provided to Dr. Mills when they took

her on as the family pediatrician. (Tr. of September 21,

2000 at 25.) She testified that the records were complete

when they were provided to Dr. Mills and a yellow shot

card was now missing from the records. (Tr. of September

21, 2000 at 26.) Witness One also explained that Patient

A’s apnea records, which were transported to Dr. Mills,

were now missing. (Tr. of September 21, 2000 at 27.) Also

testifying in relation to this charge, Witness Two stated

that Patient A’s chart includes an inaccurate notation that

reads that he was too busy to take Patient A for an MRI

after she was injured on a roller coaster. According to

Witness Two, he never made any such comment to the

Appellant. (Tr. of September 21, 2000 at 72.)

App. 23

The Board also heard testimony from the Appellant in

relation to this charge. During her testimony, Dr. Mills

admitted to placing information in the aforementioned

patients’ records that did not directly concern their medi-

cal treatment. Dr. Mills testified that she included, in these

patients’ summary sheets, Witness One’s statements that

she cid not smell toxins in the Appellant’s office building. At

the same time, the Appellant conceded that these summary

sheets are intended to be devoted to the most important

information regarding the patient’s medical history.

Count Four

Count Four charged Dr. Mills with unprofessional conduct,

in violation of R.I. Gen. Laws §§ §§ 5-37-5.1, 5-37-5.1(8), 5-

37-5.1(18), and 5-37-5.1(19), for anonymously making an

unfounded telephone complaint to the Department of

Children, Youth and Their Families (DCYF) suggesting

child abuse by the parents of Patients A, B, C, and D. The

Board further maintained that this complaint was made

as a retaliatory measure, because the parents had filed a

complaint against Dr. Mills with the Department of

Health. The Board heard testimony from the mother and

father of Patients A, B, C, and D, Dr. Eden, and the Appel-

lant, relating to this charge.

The mother of Patients A, B, C, and D testified that she

contacted the Department of Health concerning the Appel-

lant, after receiving a phone call in which the Appellant

seemed suicidal. (Tr. of September 21, 2000 at 12.) During

this conversation, the Appellant told Witness One that

everyone, but namely the Department of Health and Blue

Cross, were all out to get her. Witness One stated that

after she sent a letter to the Department of Health regard-

ing the Appellant’s behavior, the Appellant began calling

App. 24

her family at their home, demanding to speak with either

her or her husband. On one occasion, the Appellant called

back at midnight to speak with Witness One’s husband

and during that conversation asked why they were doing

this to her. (Tr. of September 21, 2000 at 15.) According to

Witness One, subsequent to this conversation, the family

received repeated telephone calls and hang ups, one of

which Patient B directly traced back to Appellant by

dialing star 69. (Tr. of September 21, 2000 at 15-17.)

Witness Two’s testimony outlined the full extent of retalia-

tory measures taken by Dr. Mills. Witness Two, who is

employed as a case worker for DCYF, testified that Dr.

Mills filed a complaint against him with DCYF claiming

that she suspected abuse. According to Witness Two, he

was called into his supervisor’s office and was informed

that an anonymous call had been made to the Child Abuse

Hot Line in regard to suspicious injuries on Patients A and

B. He further testified that the only person he could

fathom making such a complaint was Dr. Mills. He ex-

plained to his supervisor that he had filed a complaint

against Dr. Mills and suspected that it was she who made

the call. On account of this information, Witness Two

explained that DCYF conducted a non-investigation,

downgraded to an early warning. (Tr. of September 21,

2000 at 64.) Witness Two testified, however, that though a

non-investigation was considered more appropriate given

the unusual circumstances, both the supervisor and the

chief investigator were involved and asked Witness Two

questions regarding potential abuse. (Tr. of September 21,

2000 at 66.)

In relation to this charge, Dr. Eden testified that there was

nothing in the medical history of Patients A and B that

would have led him to suspect child abuse. According to

App. 25

Dr. Eden, a physician who is referred a medical chart from

another physician has a duty to review that chart and

consult the previous physician if he has any concerns

about the care and treatment of that patient. (Tr. of

October 19, 2000 at 29.) In cases where a pediatrician

might suspect child abuse, Dr. Eden explained that the

pediatrician would have a duty to consult the patient’s

record thoroughly and contact past treating physicians

and past treating hospitals before contacting the appropri-

ate agency. (Tr. of October 19, 2000 at 30-31.) Dr. Eden

further clarified that the information provided in the

records that Witness One brought to Dr. Mills regarding

Patient A’s past medical history would have given a

pediatrician sufficient notice that the child had a near

Sudden Infant Death Syndrome (SIDS) event in her life.

(Tr. of October 19, 2000 at 34.) Furthermore, Dr. Eden

explained that if a pediatrician does suspect child abuse,

neglect or sexual abuse, the pediatrician is required to

report that suspicion to DCYF or the appropriate agency

and then follow that up with a written physician’s record

of examination. (Tr. of October 19, 2000 at 40.) Dr. Eden

testified that it is not in accordance with the appropriate

standard of care for a physician to call an anonymous

hotline regarding suspicions of child abuse. (Tr. of October

19, 2000 at 41.)

During Dr. Mills’s testimony on this issue, Dr. Mills

conceded that she called the Child Abuse Hot Line regard-

ing Witness Two, who she was aware worked for DCYF.

(Tr. of August 23, 2000 at 74.) Dr. Mills stated that she

made this phone call on October 5, 1999, only after she

had learned that Witness One and Witness Two had filed a

complaint against her with the Department of Health. (Tr.

of August 23, 2000 at 75.) Dr. Mills further admitted that

App. 26

the patient she was calling the Hot Line in regard to was

19 years of age at the time and had already started col-

lege. (Tr. of August 23, 2000 at 76.) Dr. Mills explained

that the possibility of abuse came to her attention when

she was carefully reviewing the records of Patients A, B,

C, and D so she could respond to the claim that Witness

One and Witness Two had filed against her. (Tr. of August

23, 2000 at 75.) According to Dr. Mills, she was particu-

larly disturbed that Witness One had never mentioned

that Patient A was a near SIDS baby; yet, had mentioned

that Patient A had apnea. (Tr. of August 23, 2000 at 75.)

Dr. Mills explained that this was worrisome because SIDS

is more commonly known than apnea. (Tr. of August 23,

2000 at 75.) Furthermore, Dr. Mills claimed that when she

thoroughly looked through the medical records of Patient

A, provided by Witness One, she noticed numerous inju-

ries from haphazard incidents which led her to believe

that there was abuse occurring. (Tr. of October 19, 2000 at

20.) Dr. Mills later testified that she made the complaint

to DCYF because she was concerned about Patients A, B,

C, and D after seeing a Dateline show in which a girl was

murdered by her father. (Tr. of December 7, 2000 at 57.)

According to Dr. Mills, she feared that if she identified

herself when making the report, she would be suspended.

(Tr. of December 7, 2000 at 66.)

Count Five

Count Five charged Dr. Mills with unprofessional conduct

in violation of R.I. Gen. Laws §§ § 5-37-5.1, 5-37-5.1(18),

and 5-37-5.1(19), by reason of professional incompetency,

in committing acts of misconduct due to an impairment

that has directly affected her ability to practice profes-

sionally. As this charge is more general in nature, all of the

App. 27

testimony throughout the proceedings is relevant. During

the hearings, both Witness One and Witness Two ex-

pressed concern for the Appellant and explained to the

Board that their reason for filing a complaint with the

Department of Health was that they were worried that the

Appellant might harm herself. Both sets of parents who

testified during the proceedings, explained that they had

filed complaints against the Appellant with the Depart-

ment of Health after making the decision to switch to new

pediatricians. Furthermore, during the proceedings, Dr.

Eden testified that in his expert opinion, he did not believe

that the Appellant was fit to practice medicine at the

current time.

In addition to the testimony of the State’s witnesses, a

large basis for the Board’s determination relating to this

charge stems from the Appellant’s own testimony during

the proceedings. During her testimony, Dr. Mills admitted

that she moved four times during her time in private

practice, which lasted from 1994 until 1999. She explained

that the reason for each of these moves was contamination

in the buildings where her various offices were located.

(Tr. of December 7, 2000 at 9-19.) According to Dr. Mills,

her first office, located on Jefferson Boulevard, was con-

taminated by the carpeting and glue used in the office. Dr.

Mills went on to explain that although her second office

building, located at Reservoir Avenue, was not initially

contaminated, it became contaminated after she moved

her things over from the first building to the second

building. Moreover, she testified that along with her

furniture, medical equipment, papers and books, her

patients’ charts became contaminated. Though Dr. Mills

claimed that such contamination could be verified through

tests conducted by 3-M Corporation, Dr. Mills never

App. 28

provided the results of such tests during the proceedings,

even after being asked to do so. Dr. Mills further testified

that she was never informed by DEM or the real estate

agent that there had been a gasoline spill under the third

office building. Finally, Dr. Mills attributed the contamina-

tion in the fourth building to toxic levels of formaldehyde.

(Tr. of December 7, 2000 at 29-30.)

In explaining how she confronted these situations, Dr.

Mills testified that she informed most of her patients

about the contaminants in the various office buildings, and

as soon as she became aware that there were toxins in a

building, she would begin doing house calls. (Tr. of Decem-

ber 7, 2000 at 38.) Dr. Mills further explained that on one

occasion, she examined a patient in the parking lot of St.

Joseph’s Hospital after St. Joseph’s Hospital refused to

allow her to examine the patient in the Emergency Room

of the hospital. During the proceedings, Dr. Mills also felt

it was important to clarify that this examination took

place in the back of the patient’s car. (Tr. of December 7,

2000 at 39-40.) Dr. Mills further admitted that due to the

toxins in her offices, she began to conduct some of her

examinations outdoors and confirmed that she gave her

patierts the chicken pox vaccine outdoors in the back of

her office building, where according to Dr. Mills, it was

private. (Tr. of December 7, 2000 at 54-55.) Dr. Mills did

not dispute the fact that she allowed her medical assistant

and young patients to go in and out of her office, when she

herself would not enter the office building because she

believed it contained deadly toxins. (Tr. of December 7,

2000 at 44-45.) Dr. Mills explained that she would wait

outside while her patients went inside the office attended

by Dr. Mills’s medical assistant, so the patients could be

App. 29

weighed, measured, and have their temperatures and vital

signs taken. (Tr. of December 7, 2000 at 45-46.)

With respect to submitting to a psychiatric examination,

as required by the Investigating Committee, the Appellant

testified that she did not care for the psychiatrist chosen

by the State and decided to choose her own psychiatrist to

conduct an evaluation. The Appellant proceeded to explain

that the psychiatrist she had chosen did not complete the

evaluation because they could not get along.

Count Six

Count Six charged Dr. Mills with unprofessional conduct,

in violation of R.I. Gen. Laws §§ § 5-37-5.1, 5-37-5.1(19), 5-

37-5.1(24), and 5-37-22 and the Rules and Regulations of

the Board of Licensure and Discipline regarding medical

records § 11.2, for her incompetent and negligent care of

Patients E and F. In relation to this charge, the Board

heard testimony from the parents of Patients E and F, Dr.

Eden, and Dr. Mills.

The mother of Patients E and F (herein referred to as

Witness Three) testified thet she first became concerned

about Dr. Mills’s conduct when she noticed Dr. Mills’s

aggressive behavior toward Patient E. Witness Three

explained that Dr. Mills became irritated when Patient E

exhibited agitation about receiving injections and that Dr.

Mills would request that Witness Three hold her daughter

down. Additionally, Witness Three testified that Dr. Mills

used an aggressive tone with Patient E. Witness Three

also testified as to how uncomfortable it was for her to

bring Patient E for shots due to the tense environment it

created and explained that she has not incurred similar

App. 30

problems since she switched pediatricians. (Tr. of October

5, 2000 at 6-7.)

Regarding the care of Patient F, Witness Three testified

that Dr. Mills informed her that Patient F was not grow-

ing at the standard rate and made statements to the effect

that Patient F could potentially turn out to be a dwarf.

Witness Three testified that Dr. Mills showed her pictures

of dwarfs and commented that dwarfs have a life span of

approximately 20 years. According to Witness Three, Dr.

Mills went through a thorough explanation of dwarfism,

showed Witness Three a medical book stating the symp-

toms and signs of the disease, and went on to tell Witness

Three that Patient F exhibited dwarf like features, and

may be suffering from a condition known as Williams

Syndrome. Dr. Mills also used the descriptive terms, “elf”

and “midget,” in referring to this patient. Although there

was some confusion during the proceedings as to which of

these words was used at which time, the record reveals

that Dr. Mills used these terms in reference to Patient F.

Based on Dr. Mills’s findings, Witness Three testified that

Dr. Mills ordered related tests, consisting of a heart exam

and x-rays. Witness Three further testified that when she

brought Patient F for the heart exam, that doctor told

Witness Three that there was no need for such extensive

tests. Witness Three further explained that despite these

findings, Dr. Mills wanted to conduct additional tests

because of Patient F’s small size. The results of all tests

done on Patient F proved negative. (Tr. of October 5, 2000

at 30.)

In addition to finding the above stated treatment of

Patients E and F to be inferior, Witness Three’s testimony

also revealed that she was taken aback by Dr. Mills’s lack

of attentiveness in ensuring that she was able to care for

App. 31

Patients E and F on a regular basis. According to Witness

Three, between 50 to 60 percent of the time Patients E and

F needed to see Dr. Mills on an emergency basis, they were

transferred to another doctor. (Tr. of October 5, 2000 at

14.) Witness Three further stated that she was given a

beeper number to use for emergencies which she was

afraid to use because Dr. Mills appeared very irritated

when she was called on her beeper. (Tr. of October 5, 2000

at 27.)

As a result of the difficulties which they were experiencing

in using Dr. Mills as the family pediatrician, Witness

Three testified that she and her husband decided that it

would be best if they chose a new pediatrician. Upon

making this decision, Witness Three stated that they

informed Dr. Mills that they would need her to transfer

the medical records of Patients E and F. Witness Three

testified that Dr. Mills refused to send said records to the

new pediatrician until Witness Three and her husband

paid certain co-pays she claimed were outstanding. (Tr. of

October 5, 2000 at 12.) Witness Three further explained

that neither she nor her husband understood how Dr.

Mills arrived at the total amount allegedly owed, and

there was no clarification on this issue.

The father of Patients E and F (herein referred to as

Witness Four) corroborated his wife’s testimony, explain-

ing that after he and his wife decided to switch to a new

pediatrician, he went to the Appellant's office to sign a

release for the transfer of medical records. (Tr. of October

5, 2000 at 44.) Witness Four testified that Dr. Mills in-

formed him that she would like Witness Four and his wife

to pay her bill before she transferred the medical records

of Patients E and F. Moreover, Witness Four stated that

Dr. Mills informed him that in addition to the copays, he

App. 32

and his wife would have to pay for the transfer of medical

records. (Tr. of October 5, 2000 at 52). Witness Four

responded that they would not pay the bill until Dr. Mills

accounted for the amounts listed, at which time, Dr. Mills

agreed to transfer the records and give an accounting of

the amounts allegedly owed. Witness Four explained,

however, that the records promised were not transferred

until after he contacted the Department of Health a couple

of weeks later. (Tr. of October 5, 2000 at 46.)

In addition to the testimony of Witnesses Three and Four

regarding Dr. Mills’s care of Patients E and F, the Board

heard extensive testimony from Dr. Eden on this subject.

In regards to Dr. Mills’s treatment of Patient E, Dr. Eden

testified that it is not customary practice for a pediatrician

to act aggressively when pediatric patients express agita-

tion about receiving injections. With respect to Dr. Mills’s

care for Patient F, Dr. Eden testified that there was

nothing in Patient F’s chart that would lead him to

conclude that Patient F would be a midget, an elf, or a

dwarf. Dr. Eden further explained that though Patient F

was short, she was proportional for her weight and he

would characterize her growth as normal. (Tr. of October

19, 2000 at 36.) Though Dr. Eden conceded that Patient F

was only in the fifth percentile in terms of weight and that

a doctor would want to monitor the child’s growth given

such facts, he stated that it would not be cause for alarm.

(Tr. of October 19, 2000 at 67.) Furthermore, Dr. Eden

explained that although the cardiologist did find a slight

heart murmur in Patient F, absent a failure to thrive, Dr.

Mills had no basis for her suspicions that Patient F suf-

fered from a disease known as William’s Syndrome. (Tr. of

October 19, 2000 at 74.) In regard to the transferring of

App. 33

medical records, Dr. Eden testified that in his opinion it

would violate the standard of care for a doctor to withhold

a medical record for an unpaid baiance. (Tr. of October 19,

2000 at 28).

Count Seven

Count Seven charged Dr. Mills with unprofessional con-

duct, in violation of R.I. Gen. Laws § 5-37-5.1, for the acts

referred to in the Summary Suspension of October 19,

1999, and for the collective and cumulative impact of the

aforementioned acts of misconduct. This charge relates to

all of the testimony throughout these proceedings, para-

phrased in the discussion of the preceding counts. Based

on the cumulative weight of the evidence presented

throughout the proceedings, the Board concluded that the

Appellant is presently unfit to practice medicine.

Il. Standard of Review

The Court’s review of a decision by the Department of

Health is controlled by R.I. Gen. Laws 1956 § 42-35-15(g),

which provides for review of a contested agency decision:

(g) The court shall not substitute its judg-

ment for that of the agency as to the weight of

the evidence on questions of fact. The court may

affirm the decision of the agency or remand the

case for further proceedings, or it may reverse or

modify the decision if substantial rights of the

appellant have been prejudiced because the ad-

ministrative findings, inferences, conclusions, or

decisions are:

(1 In violation of constitutional or statutory

provisions;

App. 34

(2 In excess of the statutory authority of the

agency;

(3 Made upon unlawful procedure;

(4 Affected by other error or law;

(5 Clearly erroneous in view of the reliable, pro-

bative, and substantial evidence on the whole

record; or

(6 Arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted

exercise of discretion.”

This section precludes a reviewing court from substituting

its judgment for that of the agency in regard to the credi-

bility of the witnesses or the weight of the evidence con-

cerning questions of fact. Costa v. Registry of Motor

Vehicles, 543 A.2d 1307, 1309 (R.I. 1988); Carmody v. R.1.

Conflict of Interest Commission, 509 A.2d 453 (R.I. 1986).

This is true even in cases where the court, after reviewing

the certified record and evidence, might be inclined to view

the evidence differently from that of the agency. Berberian

v. Dept. of Employment Security, 414 A.2d 480 (R.I. 1980).

This Court will “reverse factual conclusions of administra-

tive agencies only when they are totally devoid of compe-

tent evidentiary support in the record.” Milardo v. Coastal

Resources Management Council, 434 A.2d 266, 272 (R.I.

1981). Questions of law, however, are not binding upon a

reviewing court and may be freely reviewed to determine

what the law is and its applicability to the facts. Carmody

v. R.I. Conflicts of Interests Commission, 509 A.2d at 458.

The Superior Cevrt’s role is to examine whether any

competent evidence exists in the record to support the

agency’s findings. Rocha v. Public Util. Comm'n, 694 A.2d

722, 727 (R.I. 1997). The Superior Court is required to

App. 35

uphold the agency’s findings and conclusions if they are

supported by competent evidence.

Rhode Island Public Telecommunications Authority, et al.

v. Rhode Island Labor Relations Board, et al., 650 A.2d

479, 485 (R.I. 1994).

Substantial Evidence

Appellant argues that this Court should reverse the

Board’s decision because the Board’s findings are not

supported by the substantial weight of the evidence.

Specifically, the Appellant contends that the evidence

presented during the hearings do not support the Board’s

conclusions regarding (1) the anonymous complaint

Appellant made to DCYF; (2) Appellant's concerns regard-

ing Witness One’s failure to mention that Patient A suf-

fered from a near SIDS episode; (3) Appellant’s treatment

of patients outdoors; (4) Appellant's differential diagnosis

that Patient F might suffer from William’s Syndrome; (5)

Appellant’s willingness to transfer the medical records of

Patients E and F; (6) Appellant’s willingness to undergo an

evaluation; (7) Appellant’s Rhode Island Hospital Applica-

tion; and (8) the issue of whether Appellant suffered from

a mental impairment. The Board argues that under the

fair preponderance standard, the Board had substantial

evidence to find unprofessional conduct on the part of the

Appellant for each of the seven counts. This Court ad-

dresses each of the Appellant’s arguments below.

DCYF COMPLAINT

Appellant argues that the testimony presented during the

hearings demonstrates that the Appellant had legitimate

App. 36

concerns in filing a complaint with DCYF, against the

parents of Patients A, B, C, and D. Moreover, Appellant

contends that the Board’s findings are inconsistent with

the applicable child abuse reporting statutes, which

specifically provide for hot line reports. In reviewing the

Board’s decision, this Court finds that substantial evidence

of record existed in the form of witness testimony for the

Board to conclude that the Appellant’s complaint to DCYF

constituted unprofessional conduct.

Though the Appellant contests the Board’s determinations

with regard to the credibility of the State’s witnesses, it is

not for this Court to substitute its judgment for that of the

agency regarding the credibility of witnesses or the weight

of the evidence with respect to questions of fact. Tierney et

al. v. The Department of Human Services, 793 A.2d 210

(R.I. 2002). As with other witnesses, where evaluation of

an expert’s testimony implicates determinations of credi-

bility, the Court should defer to the agency's determina-

tions. See Environmental Scientific Corp. v. Durfee, 621

A.2d 200, 206-07 (R.i. 1993). The Board heard testimony

from Witness One and Witness Two, both of whom the

Board found to be credible, that the Appellant began

calling their home and harassing them after they filed a

complaint against the Appellant with the Department of

Health. Each of these witnesses testified that Appellant

had never expressed any concern that abuse might be

occurring in their home and that there was no foundation

for such concerns. The Appellant herself admitted that she

placed an anonymous call with the Child Abuse Hot Line

regarding Witness Two. The Board also found convincing

the testimony of Dr. Eden, an expert in the field of pediat-

rics, who stated that based on the records of Patients A, B,

C, and D, there was no reason for the Appellant to suspect

App. 37

that abuse was occurring. Furthermore, Dr. Eden testified

that if a pediatrician did suspect child abuse, it would not

be in accordance with the standard practice to place an

anonymous call. He explained that standard practice

requires a physician to state their name and follow the

phone call up with a written report.

Moreover, the Appellant’s handling of the complaint was in

direct contravention of the law. The statute that governs

reports by physicians who suspect abuse or neglect is R.I.

Gen. Laws § 40-11-6. The statute reads:

“(a) When any physician or duly certified

registered nurse practitioner has cause to sus-

pect that a child brought to him or her for ex-

amination, care, or treatment, is an abused or

neglected child as defined in this chapter, or

when he or she determines that a child under the

age of twelve (12) years is suffering from any

sexually transmitted disease, he or she shall re-

port the incident or cause a report thereof to be

made to the department as provided in subsec-

tion (b).

(b) An immediate oral report shall be made

by telephone or otherwise, to both the depart-

ment and law enforcement agency and shall be

followed by a report in writing to the department

and law enforcement agency explaining the ex-

tent and nature of the abuse or neglect the child

is alleged to have suffered.

report by a person other than physician or duly

certified registered nurse practitioner alleging

that a child has been physically abuse [sic], shall

investigate the report, and if the investigation

reveals evidence of physical or sexual abuse, the

App. 38

department shall have the child examined by a

licensed physician or duly certified registered

nurse practitioner. Any child protective investi-

gator shall, with or without the consent of the

parent or other person responsible for the child’s

welfare, have the right to remove the child from

the place where the child may be to secure the

examination required by this subsection. Upon

completion of the examination, it shall be man-

datory for the physician or duly certified regis-

tered nurse practitioner to make a written report

of his o- her findings to the department.”

In addressing questions of statutory interpretation, the

Supreme Court of Rhode Island had held that the Court

“must literally interpret a clear and unambiguous statute

and attribute the plain and ordinary meaning to its

words.”

Arnold v. R.I. DOL & Training Bd. of Review, 822 A.2d

164, 168 (R.I. 2003) (citing Solas v. Emergency Hiring

Council of Rhode Island, 774 A.2d 820, 824 (R.I. 2001)).

The above statute unambiguously distinguishes between

the duty of physicians, as compared to the duty of ordinary

citizens in filing complaints regarding abuse. It is clear

that a physician has a higher duty when reporting a case

of suspected child abuse. Thus, this Court finds that there

was substantial evidence in the record to support the

Board’s finding that the complaint made by Appellant

constituted unprofessional conduct.

Treatment Outdoors

Appellant argues that the Board erred in finding that

Appellant’s decision to treat her patients outdoors consti-

tuted unprofessional conduct. Appellant maintains that

App. 39

such outdoor treatments w ~e necessary because of prob-

lems in the various office buildings where she decided to

locate her offices. Furthermore, Appellant asserts that

based on Dr. Eden’s testimony during the hearings, out-

door examinations may not be a reason to disqualify

someone from practicing medicine and outdoor exams are

permissible in cases of emergency. In view of all the

testimony presented during the hearings, this Court finds

substantial evidence in support of the Board’s finding that

Appellant’s outdoor treatment of patients constituted

unprofessional conduct.

“Judicial scrutiny on appeal ‘is limited to a search of the

record to determine if there is any competent evidence

upon which the agency decision rests. If there is any such

evidence, the decision will stand.’” Restivo v. Lynch, 707

A.2d 663, 665 (R.I. 1998) (quoting E. Grossman & Sons,

Inc. v. Rocha, 118 R.I. 276, 285-86, 373 A.2d 496, 501 (R.I.

1977)). This Court finds substantial evidence on the record

to support the Board’s finding that Appellant’s treatment

of patients outdoors constituted unprofessional conduct,

including the testimony of an expert witness who explicitly

stated that the Appellant’s use of outdoor treatment was

not within the parameters of professional conduct. Under

§ 5-37-5.1(19) unprofessional conduct includes:

“Incompetent, negligent, or willful misconduct in

the practice of medicine which includes the render-

ing of medically unnecessary services, and any de-

parture from, or the failure to conform to, the

minimal standards of acceptable and prevailing

medical practice in his or her area of expertise as

is determined by the board. The board need not

establish actual injury to the patient in order to

adjudge a physician or limited registrant guilty

App. 40

of the unacceptable medical practice in this sub-

division.”

It is well established that this Court effectuates the

Legislature’s intent “by examining a statute in its entirety

and giving the words their plain and ordinary meaning.”

Parkway Towers Assocs. v. Godfrey, 688 A.2d 1289, 1294

(R.I. 1997) (quoting In re Falstaff Brewing Corp., 637 A.2d

1047, 1049 (R.I. 1994)). This Court’s primary objective in

applying a statute is to ensure that its enforcement is

consistent with the statute’s underlying purpose.

Kirby v. Planning Board of Review of the Town of Middle-

town, 634 A.2d 285, 290 (R.I. 1993) (citing Zannelli v. Di

Sandro, 84 R.I. 76, 121 A.2d 652, 655 (R.I. 1956)).

While the Rhode Island Supreme Court has not specifi-

cally addressed the extent of the Board’s authority in

determining what constitutes inappropriate conduct, other

jurisdictions have found that a Board of Medicine and

licensees possess sufficient understanding in the field of

medicine to make such determinations. The Court of

Appeals of Michigan has held that a statutory provision,

which prohibits departure from minimal standards of

practice is “sufficiently certain and definite” based on “well

recognized meanings” to afford a licensee fair notice as to

what type of conduct is unacceptable in the field of medi-

cine. See Joseph W. Rucker, M.D. v. Michigan Board of

Medicine, 138 Mich. App. 209, 360 N.W.2d 154 (Mich. App.

1984). “It is therefore, proper for the Board of Medicine,

having education and experience, to determine whether

petitioner’s actions constituted a violation of minimal

standards.” Id. (citing Sanchick v. State Board of Optome-

try, 342 Mich. 555, 70 N.W.2d 757 (1955); Warchuis v.

State Bd. of Registration in Medicine, 285 Mich. 699, 281

App. 41

NW 410 (1938)). Adopting this same reasoning, the Su-

preme Court of Arkansas has held that certain behavior is

so obviously unprofessional that it not needs to be explic-

itly spelled out in a statute in order for a Board of Medi-

cine to deem that it warrants a severe sanction. Thus, in

Arkansas State Medical Board v. John Q. Elliott, M.D.,

263 Ark. 86, 563 S.W.2d 427 (Ark. 1978), the Supreme

Court of Arkansas held that suspension of the appellant's

license was appropriate where the appellant gave two

prescriptions to the same man under two different names

who admittedly had nothing wrong with him. That there

was no law expressly proscribing such conduct could not

excuse such sub par behavior on the part of a practicing

physician. See id.

In the present case, there was substantial evidence in the

record to confirm the Board’s finding that Appellant's

outdoor treatment of her patients was not in accordance

with the minimal standards of acceptable and prevailing

medical practice. Appellant herself admitted that on one

occasion, she treated a child in a parking lot inside the

patient’s car, and other times, she would treat the children

outside in the backyard. She also conceded that she

administered the chicken pc < vaccine in the yard and that

she drew blood from patients B and D outdoors. According

to Dr. Eden, the outdoor treatment Appellant engaged in

was not justified, regardless of the alleged contamination

in the Appellant’s office buildings. He explained that while

contamination in the offices would have necessitated

alternative venues for the examinations, such outdoor

examinations were inconsistent with the appropriate

standard of care. Furthermore, the Board did not believe

that every building owned by Appellant was contaminated

as suggested in her testimony. Appellant failed to present

App. 42

any evidence during the hearings to substantiate her

claims that each of her office buildings that she inhabited

was contaminated. Additionally, Appellant made admis-

sions to the effect that she permitted her medical assistant

to go in and out of the allegedly contaminated buildings

while she waited outside. Appellant also testified that

everything, including patients’ medical records, had

become contaminated. Yet at the same time, admitted that

she placed these same records in her parents’ home and

would have her medical assistant retrieve them when they

were needed. Based on the aforementioned evidence, this

Court concludes that there was substantial evidence in

support of the Board’s determination that Appellant’s

outdoor treatment constituted unprofessional conduct.

Williams Syndrome

Appellant next argues that the evidence presented during

the proceedings demonstrates that Appellant's differential

diagnosis that Patient F might suffer from “Williams

Syndrome” was not unfounded. Appellant asserts that the

Board’s conclusion that later examination revealed noth-

ing wrong with Patient F is contrary to the evidence that

the Board heard. In light of the cumulative testimony

presented during the hearings, this Court finds that there

was substantial evidence supporting the Board’s finding

that the Appellant’s medical treatment of Patient F consti-

tuted unprofessional conduct.

Under § 5-37-5.1(19), discussed in the preceding section,

the incompetent or negligent practice of medicine is

sufficient for the Board to find that a physician has com-

mitted unprofessional conduct. During the proceedings,

App. 43

the Board heard Dr. Eden testify that a competent physi-

cian would not have suspected that Patient F had Wil-

liams Syndrome. Furthermore, according to Witness

Three, whom the Board found to be credible, when Witness

Three took Patient F for a heart exam, the doctor said that

there was no reason for additional tests to be conducted.

Though Appellant claims her medical diagnosis was

appropriate, Appellant failed to present any experts to

confirm her assertions that her medical treatment of

Patient F was reasonable. While our Supreme Court has

not directly addressed the degree of discretion a medical

board ought to be afforded when making a decision regard-

ing the adequacy of a physician’s care, this issue has been

addressed by other courts. Other jurisdictions have con-

cluded that a board, which has the benefit of expert

testimony in reaching its decision, should be afforded a

great deal of deference in its determinations as to what

constitutes an extreme departure from the ordinary

standard of care. See Livingston, M.D. v. Arkansas State

Medical Board, 288 Ark. 1, 701 S.W.2d 361 (Ark. 1986).

Thus, in Livingston M.D. v. Arkansas State Medical

Board, the Supreme Court of Arkansas affirmed suspen-

sion of the appellant’s license, where the appellant negli-

gently led a patient to believe that she was pregnant for a

period of four months. Though the appellant in that case

offered expert testimony to the effect that the appellant’s

records demonstrated an adequate standard of care, the

Court concluded that a physician’s conduct does not have

to rise to the level of malpractice for it to constitute unpro-

fessional conduct warranting suspension of a license. See

id. Similarly, in the present case, this Court finds that

there was substantial evidence in the record to support the

Board’s conclusion that Appellant’s treatment of Patient F

App. 44

did not conform to the ordinary standard of care and

warranted a sanction that the Board deemed appropriate.

Record Transfer Issue

Next, Appellant argues that the Board’s finding that

Appellant refused to transfer records “until all fees were

paid for services rendered” is clearly erroneous in light of

the substantial weight of the evidence. The Appellant

fervently denies wrongfully withholding Patients E’s and

F’s records despite the testimony of Patients E’s and F’s

parents that the Appellant made the payment of a dis-

puted bill a condition precedent to sending said records.

Upon review of the Board’s decision, this Court finds that

there was substantial evidence on the record to support

the Board’s finding that the Appellant acted unprofession-

ally in failing to transfer patients’ records to a new pedia-

trician in a timely manner.

As stated above, this Court will not substitute its judg-

rent for that of the Board with respect to the credibility of

witnesses. See Tierney, et al., 793 A.2d 210, 213 (R.I. 2002).

Thus, no new determinations will be made here as to the

credibility of the parents of Patients E and F, where the

Board has already found these witnesses to be credible.

See id. As such, this Court is confined to making a deter-

mination solely on the basis of whether there was compe-

tent evidence on the record to support the Board’s finding

that the Appellant acted unprofessionally in her transfer-

ring of patients’ records. See id. at 212.

With respect to this issue, the parents of Patients E and F,

both of whom the Board found to be credible, each testified

that the Appellant refused to transfer their daughters’

medical records until they paid the bill Appellant claimed

App. 45

they owed. In reviewing copies of the Appellant’s billings

to the family, the record reveals that the services rendered

and amounts shown as due on the bills were incomprehen-

sible to the Board. Appellant’s refusal to transfer records

until the parents of Patients E and F paid the amount

shown on bill was substantiated by the fact that Appellant

did not turn over the patients’ records until the Depart-

ment of Health intervened. Thus, this Court finds sub-

stantial evidence in the record for the Board’s finding that

Appellant acted unprofessionally in the transferring of

patients’ records.

Evaluation Issue

Appellant argues that she is willing to be examined by a

psychiatrist, but not one who is subject to the Board’s

contfol. Appellant asserts that she has been examined by

another psychiatrist and it has been determined that she

suffers from no mental impairment. Therefore, there is no

reason why she should not be permitted to practice medi-

cine. This Court finds substantial evidence on the record

to support the Board’s finding that the Appellant had not

cooperated with the Board’s order that Appellant submit to

a psychiatric examination in accordance with the condi-

tions provided by the Board.

Pursuant to § 5-37-5.2(e)(2), the Investigating Committee

of the Board may exercise the authority afforded by § 5-37-

1.3(10) to assist the Board, if the Investigating Committee

determines that the licensee is suffering from an impair-

ment. The Investigating Committee was enlisted by the

Director of Health to investigate the Appellant’s behavior

after a complaint was filed against the Appellant in 1998.

After conducting a review of the Appellant, which included

App. 46

interviewing the Appellant and potential witnesses, the

Committee felt it appropriate for Appellant to submit to a

psychiatric examination. Based on the evidence presented,

the Board concluded that the Appellant had not as of yet

submitted to an evaluation. During Court hearings, the

Appellant expressed reluctance to submit to an examina-

tion by a psychiatrist preapproved by the Board as op-

posed to one of her own choosing.

Thus, this Court finds that there is substantial evidence in

support of the Board’s finding that the Appellant did not

comply with its order.

Rhode Island Hospital Application

Avpellant argues that her Rhode Island Hospital applica-

cion did not contain false information and asserts that her

usage of the word “acceptance” in relation to Yale and

Brown was in relation to her acceptance as a match

candidate for those programs. Appellant further contends

that her reference to her two years of medical school at

Case Western University was not a misrepresentation

because she accurately stated her role as a Ph. D candi-

date (registered but not matriculated in the medical

school), accurately identified the school where she earned

her medical degree, and identified all her residencies and

internships. This Court finds that substantial evidence

existed in the form of testimony and exhibits to conclude

that the Appellant committed unprofessional conduct in

the submission of her Rhode Island Hospital application.

As the Board reviewed Appellant’s application for staff

privileges and the information obtained from the Rhode

Island Hospital Staff Credentials Committee, this Court

must give deference to the Board, as the trier of fact, in

App. 47

finding that the Appellant made several misrepresenta-

tions in her efforts to obtain staff privileges. See Rhode

Island Public Telecommunications Authority, et al. v.

Rhode Island Labor Relations Board, et al., 650 A.2d 479,

485 (R.I. 1994). Based on the Board's thorough evaluation

of the exhibits regarding this matter, this Court finds that

there was substantial evidence to support the Board’s

finding that Appellant “provided false information to the

Rhode Island Hospital Credentials Committee in an effort

to gain staff privileges at the hospital.” (Administrative

Board Decision at 4.) The Board found that the Appellant

made several misrepresentations on her application,

including her affiliation with Case Western University

Medical School, her admission to the Yale and Brown

residency programs, and her alleged voluntary departure

from two different internships. This Court finds that there

was competent evidence to justify the Board’s findings on

this charge.

III. Adequacy of Evidence

Next, Appellant asserts that certain testimony permitted

in the hearings constituted hearsay that unfairly biased

the proceedings. One particular example that Appellant

focuses on is Witness One’s testimony that when Patient B

dialed star 69 after a hang-up, Appellant answered. Based

on the rules governing administrative hearings and the

nature of the hearsay evidence, this Court finds that the

Board’s admittance of hearsay evidence during the hear-

ings did not unfairly bias the proceedings.

This Court has consistently acknowledged that the parame-

ters for admitting relevant evidence in administrative

proceedings are broad in scope. “Administrative hearings

App. 48

are not held to the same evidentiary standards as criminal

or even judicial civil proceedings. Hearsay is quite accept-

able in administrative hearings.” In re Joseph A. Cross,

617 A.2d 97, 102 (R.I. 1992) (quoting Craig v. Pare, 497

A.2d 316, 320 (R.I. 1985)) Thus, in Jn re Joseph A. Cross,

the Supreme Court held that admission of a complaint

letter against appellant in an administrative hearing was

permissible because hearsay doctrines were not applicable.

See id. Similarly, in the present case, traditional hearsay

rules were not applicable and the hearsay evidence in

question was clearly relevant to the proceedings. Conse-

quently, this Court finds that the Board’s decision to

permit such hearsay testimony did not prejudice the

Appellant’s right to a fair and unbiased proceeding.

IV. Arbitrary and Capricious

Next, Appellant argues that in light of the evidence pre-

sented, the Board’s decision is arbitrary and capricious.

Appellant contends that the testimony of the State’s

witnesses directly contradict the Board’s findings. In

support of her argument, Appellant makes reference to

certain statements by the State’s witnesses during their

testimony, and claims that they pose inconsistencies in the

Board’s case against her. Upon a thorough review of the

Board’s decision, this Court finds that the Board’s deter-

mination that Appellant was guilty of unprofessional

conduct in the practice of medicine was not arbitrary and

capricious.

The Supreme Court of Rhode Island has repeatedly

declared that the arbitrary and capricious standard of

review is limited in scope and affords great deference to

agency decisions. “Use of the arbitrary and capricious

App. 49

standard means that reviewing courts will uphold admin-

istrative decisions ... as long as the administrative

interpreters have acted within their authority to make

such decisions and their decisions were rational, logica’

and supported by substantial evidence.” Domingo Gon-

calves v. NMU Pension Trust, 818 A.2d 678, 682-83 (R.1.

2003) (citing Doyle v. Paul Revere Life Insurance Co., 144

F.3d 181, 184 (1st Cir. 1998)). See also Evan J. Connor v.

Paul Bjorklund, et al., 833 A.2d 825, 2003 R.I. LEXIS 197,

No. 2002-720-A., slip op. at 5 (R.L, filed October 31, 2003)

(here in a civil action, the Rhode Island Supreme Court

refused “to second-guess the trial justice’s credibility

findings” where the defendants cited “certain discrepan-

cies between plaintiff’s trial testimony and other evidence

contained in the record”).

In applying the arbitrary and capricious standard to the

present case, this Court recognizes that under R.I. Gen.

Laws §5-37-5.1, the Board of Medical Licensure and

Discipline is afforded wide discretion in making determi-

nations as to what constitutes unprofessional conduct. The

statute specifically reads that unprofessional conduct is

not limited to the thirty one items specifically laid out in

the statute and provides that the items mentioned “may be

further defined by regulations established by board with

the prior approval of the director.” R.I. Gen. Laws § 5-37-

5.1. In the case at bar, the Board heard from several

witnesses including the mother and father of patients A,

B, C, and D; the mother and father of patients E and F;

Dr. Eden, an expert in the field of pediatrics; and the

Appellant herself. Additionally, the Board reviewed 28

exhibits. Throughout the hearings, Appellant had numer-

ous opportunities to call witnesses on her behalf and

submit evidence to substantiate her claims. At no time

App. 50

during the proceedings did Appellant attempt to do so.

Moreover, the Board’s decision includes a thorough analy-

——— sis of its finding on each charge and explained in detail the

evidence upon which they based their decision. Conse-

quently, this Court finds that the Board’s decision was not

arbitrary or capricious.

V. Investigatory, Adjudicatory and Advisory Func-

tions

The Appellant argues that Attorney Bruce McIntyre

(McIntyre), who prosecuted the instant action, commin-

i gled functions as prosecutor and witness. Appellant

contends that throughout the proceedings McIntyre

injected questions that suggested MclIntyre’s firsthand

knowledge of events and his own characterization of what

had occurred. The Board counters by arguing MclIntyre’s

role as prosecutor was wholly appropriate and did not

unfairly taint the proceedings. The Board argues that this

subject is thoroughly covered by Rule 3.7 of the Rhode

Island Rules of Professional Conduct. The Board further

contends that Appellant’s attempt to prohibit McIntyre

from acting as prosecutor in the present case is a harass-

ing technique that is without merit. This Court finds that

the Board’s decision to allow Attorney Bruce McIntyre to

prosecute the case was entirely proper.

In El Gabri v. Rhode Island Bd. of Med. Licensure &

Discipline, 1998 R.I. Super. LEXIS 36, the Rhode Island

Superior Court addressed a similar argument made by an

appellant who was challenging the Board’s decision to

revoke his license. The appellant claimed that MclIntyre’s

role as prosecutor and advisor to the Board was unconstitu-

tional. The Superior Court rejected appellant’s argument

App. 51

and concluded that McIntyre’s dual role as prosecutor and

advisor to the Board was not violative of due process

because nothing in the record demonstrated that McIntyre

exercised influence over the Hearing Committee. El Gadri,

1998 R.I. Super. LEXIS 36 at *33-34. “Broadly speaking,

the separation of functions that prevails in a modern

administrative agency, allotting the prosecutoria! function

to a staff of attorneys or other personnel who will not

participate in the eventual decision, is a common and

recommended feature of American administrative en-

forcement activity.” La Petite Auberge v. Rhode Island

Comm'n for Human Rights, 419 A.2d at 284 (R.I. 1980). As

was the appellant’s argument in E/ Gabri, the argument

made by the Appellant in the present case is without

merit. There was nothing in the record to suggest that

Attorney McIntyre exercised any influence over the

Hearing Committee’s decision. Moreover, the record

demonstrates that McIntyre acted squarely within the

boundaries of his role as prosecutor.

VI. Sanctions

Finally, during Court hearings, the Appellant argued that

the sanction of indefinite suspension of her medical license

was excessive in light of other medical board disciplinary,

sanctions that could have been imposed. The Board holds

that suspension of Dr. Mills’s license is the appropriate

sanction until she submits to physical and psychiatric

examinations conducted by medical professionals pre-

approved by the Board. This Court finds that the Board

did not err in using their discretion to reach what they

deemed to be an appropriate sanction for Dr. Mills’s

unprofessional conduct.

App. 52

This Court will not substitute its judgment for that of

the Board concerning the appropriate discipline for the

Appellant, as a Medical Board is in the best position to make

determinations as to what constitutes an appropriate sanc-

tion. See Jack Marrs, M.D. v. Michigan Board of Medicine,

422 Mich. 688, 375 N.W.2d 321, 324 (Mich. 1985) (holding

that the Court of Appeals erred in finding that the Board

abused its discretion in imposing a one-year suspension for

a doctor’s failure to conform to prevailing minimum

professional standards); see also State of Rhode Island

Department of Corrections v. Rhode Island Brotherhood of

Correctional Officers, 725 A.2d 296 (R.I. 1999) (declaring

that an arbitrator improperly substituted his judgment for

that of the director regarding what the proper disciplinary

action should be). A Medical Board is empowered to

impose discipline as it deems proper. Bryce v. Board of

Medical Quality Assur., 184 Cal. App. 3d 1471, 229 Cal.

Rptr. 483 (Cal. App. 4 Dist. 1984). Regarding the imposi-

tion of discipline, “it is well settled that in reviewing the

penalty imposed by an administrative body which is duly

constituted to announce and enforce such penalties,

neither a trial court nor an appellate court is free to

substitute its own discretion as to the matter; nor can the

reviewing court interfere with the imposition of a penalty

by an administrative tribunal because in the court’s own

evaluation of the circumstances the penalty appears to be

too harsh. Such interference will only be sanctioned when

there is an arbitrary, capricious, or patently abusive

exercise of discretion.” Shakin v. Board of Medical Exam-

iners, 254 Cal. App. 2d 102, 62 Cal. Rptr. 274 (Cal. App.

2nd Dist. 1967).

Thus, this Court finds that the suspension of Appellant’s

license was the appropriate sanction imposed in relation to

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App. 53

the well-supported findings of the Board and did not

constitute an abuse of discretion. During oral arguments

before this Court, the Appellant requested that this Court

modify the sanction to include a provision that a psychia-

trist of the Appellant’s own choosing be permitted to

attend the psychiatric examination the Board is requiring

her to undergo before she can be considered for reinstate-

ment. This Court’s consideration of such a request would

be inappropriate and would constitute a substitution of its

judgment in place of the Board’s as to the conditions of

Appellant’s reinstatement.

Conclusion

After review of the entire record, this Court finds the

decision of the Board was supported by the reliable,

probative, and substantial evidence in the record, and was

not affected by error of law. Furthermore, this Court finds

that the Board’s decision was not arbitrary or capricious or

an abuse of discretion. Thus, the substantial rights of

Appellant have not been prejudiced. For the reasons

stated herein, the decision of the Board, which finds the

Appellant in violation of 1956 R.ILG.L. §5-37-5.1, is

affirmed. Counsel shall prepare an appropriate judgment

for entry.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.