CLIENT ADVISORY: Physician Scope of Practice and Board of Medicine Due Process Illustrated in Recent Appeals Court Decisions

Two recent Virginia Court of Appeals decisions illustrate important morals: If a provider chooses to practice outside the scope of her specialty and training or opts to use alternative courses of treatment, she may encounter licensing board sanctions, and where due process may not be followed to the letter, it may still be sufficient if the provider has an opportunity to make her case.

First, on March 14, 2017, the Court of Appeals of Virginia decided the case of Virginia Board of Medicine v. Zackrison.[1] The Court of Appeals reversed a circuit court decision favorable to Dr. Zackrison, and reinstated the Virginia Board of Medicine’s (Board) findings of a licensure violation.[2] The Board had found that Dr. Zackrison violated the standard of care in regard to one of her patients.[3] The doctor reportedly diagnosed the patient without providing adequate support in the medical record for the diagnosis, and then provided inappropriate treatment.[4]

Dr. Zackrison was board certified in both internal medicine and rheumatology, and had been licensed with the Board to practice medicine in Virginia since 1991.[5] In 1999, she began treating patients with Lyme disease.[6] She treated Patient A over the span of a couple of years for several conditions, which included Lyme disease and other infections.[7] According to the Board, Dr. Zackrison provided inappropriate treatment in the form of extensive antibiotic use.[8] The Board held a two-day formal hearing to assess whether Dr. Zackrison had followed the standard of care in Patient A’s case.

Two Commonwealth experts, an infectious disease specialist and a rheumatologist, testified that Dr. Zackrison had not followed the standard of care applicable in Patient A’s case.[9] Dr. Zackrison testified in her own defense, but the Board would not allow counsel to qualify her as an expert on the practice of rheumatology and the applicable standard of care.[10] The Board maintained that Dr. Zackrison was the respondent and needed to focus on responding to the charges against her. The expert who testified on the doctor’s behalf was considered a national expert on tick borne diseases and testified that Patient A’s circumstances were unique.[11] Furthermore, he testified that Dr. Zackrison had followed the standard of care. The Board found that Dr. Zackrison’s expert had not completed a fellowship in either rheumatology or infectious diseases.[12] The Board then issued a decision that seemingly relied on the Board’s own experts in finding that Dr. Zackrison’s care of Patient A fell below the appropriate standard.

On appeal, the Court of Appeals of Virginia held that an interested party may testify on her own behalf, and a physician may serve as her own expert in contested litigation.[13] It is in the Board’s discretion, however, to determine what qualifications an expert must have. The Court held Dr. Zackrison qualified as an expert under the most stringent standard, and that the Board erred in refusing to allow her to testify as an expert.[14] Nonetheless, the Court found the error harmless because the record did not contain any evidence as to how Dr. Zackrison’s testimony would have differed had the Board permitted her to qualify as an expert.[15] The Court reversed the circuit court’s decision and reinstated the Board’s final disciplinary order.

Shortly after the Court of Appeals of Virginia decided Zackrison, it decided Virginia Board of Medicine v. Hagmann on March 21, 2017.[16] Hagmann is another case that illustrates the implications a provider may face when he does not follow approved medical standards and procedures. The Court of Appeals reversed the circuit court’s ruling that the Board erred in denying Dr. Hagmann’s motion for a second continuance.[17] Moreover, it affirmed the circuit court’s finding that the Board had not violated Dr. Hagmann’s due process rights, and reinstated the Board’s decision to revoke Dr. Hagmann’s license to practice medicine.[18]

Dr. Hagmann taught various courses to students at a federal military medical school.[19] In filing a Board complaint, the school alleged the doctor allowed “students to perform, upon each other and Hagmann, invasive medical procedures that were unapproved and not undertaken in good faith for medicinal or therapeutic purposes.”[20] The school also alleged the doctor encouraged his students to use alcohol in ways that were both unapproved and dangerous.[21] Lastly, the allegations included that Dr. Hagmann provided medical treatment and prescriptions without keeping adequate records.[22]

On March 12, 2015, the Board notified Dr. Hagmann that it had scheduled a formal administrative hearing for April 22, 2015, and provided him with nine volumes of exhibits.[23] The doctor proceeded pro se and requested a continuance, which the Board granted.[24] The Board sent Dr. Hagmann a notification of the new hearing date and enclosed an additional exhibit.[25] He later obtained counsel and requested a second continuance, which the Board denied.[26] Dr. Hagmann then objected and failed to appear at his hearing.[27] The Board took evidence and heard argument without the doctor’s or his counsel’s presence. After the circuit court intervened, the Court of Appeals held the Board has the discretion whether to grant a request for a continuance, and the lower court cannot substitute its judgment unless there is an error of law.[28]

Dr. Hagmann requested the second continuance because he had planned a trip out of the country and was unavailable on the hearing date.[29] Additionally, his attorney was also unavailable on the hearing date.[30] The Court pointed to the evidence which showed that Dr. Hagmann never mentioned a pre-planned trip or provided “avoid” dates when he requested each continuance.[31] Dr. Hagmann argued the Board violated his right to counsel, but the Court held the attorney’s inability to attend the hearing did not deny the doctor the right to counsel. The Court specified that the right to counsel guarantees the right to effective representation and does not guarantee the right to representation by a specific attorney.[32] Dr. Hagmann had over three months to retain an attorney with availability to attend the hearing.[33] Furthermore, his attorney could have arranged for a different attorney from the firm to attend the hearing.[34] Dr. Hagmann argued that he also needed the second continuance in order to adequately prepare.[35] The Court held he had sufficient time to prepare.[36] He received nine volumes of exhibits on March 12, 2015, and it was his decision not to immediately retain counsel.[37] In the end, the Court reinstated the Board’s decision to revoke Dr. Hagmann’s license.

These two cases demonstrate the problems providers encounter when they practice beyond the scope of their specialty and do not follow the appropriate medical standard. The cases also demonstrate the value of having experienced counsel involved. Should you have need for representation before professional boards, or have any related questions, please contact Peter Mellette or Harrison Gibbs at Mellette PC at (757) 259-9200.

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

Mellette PC acknowledges with appreciation the contributions of Claudia Lopez, William & Mary Law School Class of 2017, to the preparation of this advisory.

[1] Va. Bd. of Med. v. Zackrison, No. 1291-16-2, 2017 Va. App. LEXIS 69 (Ct. App. Mar. 14, 2017).

[2] Id. at *1-2.

[3] Id. at *11-12.

[4] Id.

[5] Id. at *3.

[6] Id.

[7] Va. Bd. of Med. v. Zackrison, No. 1291-16-2, 2017 Va. App. LEXIS 69, at *3 (Ct. App. Mar. 14, 2017).

[8] Id. at *3-4.

[9] Id. at *4.

[10] Id. at *5-9.

[11] Id. at *10.

[12] Id. at *11.

[13] Va. Bd. of Med. v. Zackrison, No. 1291-16-2, 2017 Va. App. LEXIS 69, at *16-17 (Ct. App. Mar. 14, 2017).

[14] Id. at *19-20.

[15] Id. at *29-20. Judge Russell noted Zackrison’s lack of a proffer as to what else she would have said if qualified.

[16] Va. Bd. of Med. v. Hagmann, No. 1281-16-2, 2017 Va. App. LEXIS 80 (Ct. App. Mar. 21, 2017).

[17] Id. at *2.

[18] Id.

[19] Id.

[20] Id.

[21] Va. Bd. of Med. v. Hagmann, No. 1281-16-2, 2017 Va. App. LEXIS 80, at *2-3 (Ct. App. Mar. 21, 2017).

[22] Id. at *3.

[23] Id. at *2.

[24] Id. at *3.

[25] Id.

[26] Id.

[27] Va. Bd. of Med. v. Hagmann, No. 1281-16-2, 2017 Va. App. LEXIS 80, at *3-4 (Ct. App. Mar. 21, 2017).

[28] Id. at *6.

[29] Id. at *23.

[30] Id. at *31.

[31] Id.

[32] Id. at *11.

[33] Va. Bd. of Med. v. Hagmann, No. 1281-16-2, 2017 Va. App. LEXIS 80, at *12 (Ct. App. Mar. 21, 2017).

[34] Id. at *14.

[35] Id. at *18.

[36] Id. at *18-19.

[37] Id.