Appeal of Kasey L. Dillon, P.A. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0138, Appeal of Kasey L. Dillon, P.A. &
a., the court on March 8, 2019, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case.
Petitioners Kasey L. Dillon, P.A., and Edward J. Williams, M.D., appeal a
decision of the New Hampshire Board of Medicine (board). In its decision, the
board concluded that the petitioners’ treatment of a certain patient, K.H., on
February 23, 2011, fell below the standards established by RSA 328-D:6, IV
(2017) and RSA 329:17, VI (2017), respectively, and thus subjected the
petitioners to formal discipline. The petitioners argue that: (1) the board’s
order is unjust and unreasonable in light of the favorable jury verdict the
petitioners received in the civil case that spurred the board’s investigation; (2)
the board erred by failing to disqualify hearing counsel’s expert witness, Colin
O’Brien, M.D.; and (3) the board’s order and certain factual findings therein are
unjust and unreasonable because they are not supported by sufficient
evidence. We affirm.

The following facts were found by the board or are otherwise derived from
the record. The petitioners are, respectively, a physician assistant and a
physician. They were both working in the Emergency Department of
Wentworth-Douglass Hospital the evening of February 23, 2011. K.H.
presented to Wentworth-Douglass’s emergency room that night after being ill
for five days with a fever, chills, vomiting, diarrhea, upper abdominal pains,
and a cough. Dillon conducted a physical examination of K.H. After the
physical examination, Dillon ordered certain testing, including a complete
blood count (CBC). After Dillon conferred with Williams, influenza and
hepatitis tests were also ordered. No chest x-ray was ordered or conducted.
The CBC disclosed certain abnormal results, including a low white blood cell
count and 36% bands. However, Dillon did not record these abnormalities on
K.H.’s emergency room physician report.

Dillon ordered treatment for K.H., which included two liters of
intravenous normal saline and Zofran, an anti-nausea medication. The
petitioners ultimately diagnosed K.H. with a gastrointestinal virus. Dillon
discharged K.H. with prescriptions for Tussionex, a cough suppressant, as well
as more Zofran, and instructed her to follow up with her primary care
physician. The following day, K.H. returned to Wentworth-Douglass and was
diagnosed with pneumonia, impending respiratory failure, acute respiratory
distress syndrome, and sepsis. Her condition required surgical intervention
and a seven-week hospitalization.

In 2014, the board received a copy of a civil complaint filed in Strafford
County Superior Court. See RSA 329:17, II (2017). The complaint alleged that
the petitioners were grossly negligent in their treatment of K.H. The board then
commenced an investigation of the allegations in the complaint. The civil
proceeding that led to the board’s investigation culminated in a jury verdict for
the petitioners. However, based on information gathered during the board’s
investigation, including letters received from the petitioners, the board
proceeded with the instant disciplinary action. At the hearing, the board heard
testimony and received various exhibits into evidence. The board ultimately
concluded that Dillon’s treatment of K.H. fell below the standards set by RSA
328-D:6, IV, and that Williams’ treatment of K.H. fell below the standards of
RSA 329:17, VI. See RSA 328-D:6, IV (authorizing board to discipline licensed
physician assistant upon finding, after hearing, that licensee “[h]as engaged in
dishonest or unprofessional conduct or has been grossly or repeatedly
negligent in practicing his or her profession or in performing activities ancillary
to the practice of his or her profession or any particular aspect or specialty
thereof”); RSA 329:17, VI(c) (authorizing board to discipline licensed physician
upon finding, after hearing, that licensee “[h]as displayed medical practice
which is incompatible with the basic knowledge and competence expected of
persons licensed to practice medicine or any particular aspect or specialty
thereof”). The board also concluded that formally reprimanding the petitioners
was the appropriate measure of discipline to impose. See RSA 328-D:7 (2017);
RSA 329:17, VII (2017). This appeal followed.

RSA chapter 541 governs our review of the board’s decision. RSA 328-
D:8 (2017); RSA 329:17, VIII (2017); see Appeal of Rowan, 142 N.H. 67, 70
(1997). We will not set aside the board’s order except for errors of law, unless
we are satisfied, by a clear preponderance of the evidence, that it is unjust or
unreasonable. Appeal of Dell, 140 N.H. 484, 487-88 (1995); RSA 541:13
(2007). The petitioners, as the parties seeking to set aside the board’s order,
have the burden of proof. RSA 541:13. The board’s findings of fact are
presumed prima facie lawful and reasonable. Id.; Dell, 140 N.H. at 497. In
reviewing the board’s findings, our task is not to determine whether we would
have found differently than did the board, or to reweigh the evidence, but
rather to determine whether the findings are supported by competent evidence
in the record. Dell, 140 N.H. at 498. However, we review the board’s rulings
on issues of law de novo. See In the Matter of Bloomfield, 166 N.H. 475, 478
(2014).

We first address the petitioners’ argument concerning the effect of the
civil malpractice case on the board’s proceeding. The petitioners argue that, in
light of the favorable jury verdict they received in the civil case that gave rise to
the board’s investigation, the board’s order to the contrary is unjust and

2
unreasonable. However, they never presented this argument to the board, in
their motion for reconsideration or otherwise. Accordingly, it is not preserved
for our review. See RSA 541:4 (2007) (providing that “no ground not set forth
[in a motion for rehearing] shall be urged, relied on, or given any consideration
by the court”); Appeal of Northern New England Tele. Operations, LLC, 165
N.H. 267, 272 (2013); Appeal of Walsh, 156 N.H. 347, 352 (2007); Appeal of
Coffey, 144 N.H. 531, 533 (1999) (“Issues not raised in the motion for rehearing
cannot be raised on appeal.”). Even if we were to conclude otherwise, the
petitioners have not adequately developed their argument. See Lennartz v. Oak
Point Assocs., P.A., 167 N.H. 459, 464 (2015) (explaining that judicial review is
not warranted for complaints regarding adverse rulings without developed legal
argument). For these reasons, we decline to consider the petitioners’
argument.

We turn next to the petitioners’ arguments concerning hearing counsel’s
expert witness, O’Brien. The petitioners contend that the board violated their
due process rights under the State Constitution by failing to disqualify O’Brien.
See N.H. CONST. pt. I, art. 15. They do not argue that their due process rights
under the Federal Constitution were violated.

At the time of the petitioners’ hearing, O’Brien was a member of the
Medical Review Subcommittee (MRSC), a subcommittee composed of persons
who are nominated by the board and appointed by the governor and council.
See RSA 329:17, V-a (2017) (amended 2018); N.H. Admin. R., Med 102.08. The
MRSC investigates possible misconduct by licensees. See RSA 329:18, I
(2017). The petitioners argue that O’Brien, in light of his status as an MRSC
member sharing a common purpose with the board, “had an undue influence
with the Board or, at a minimum, the appearance thereof.” They argue further
that O’Brien’s statutory duty to protect the public raises “the appearance of
bias on the part of . . . O’Brien in favor of [the patient], as a member of the
public, and against the petitioners.” See RSA 329:1-aa (2017) (“The primary
responsibility and obligation of the board of medicine is to protect the public.”);
RSA 329:18, I (authorizing the board to investigate possible misconduct
through the MRSC). They also note that the initial investigation of the
petitioners by the MRSC was performed by a former member of the
subcommittee, which “raised the prospect” that O’Brien’s testimony was biased
in favor of his former colleague. They argue that O’Brien’s “lack of impartiality,
or appearance thereof, . . . hindered the ability of the petitioners to receive a
fair hearing,” and that this hindrance “became self-evident during the hearing
when the Board critically cross-examined the petitioners and their expert
witness . . . while at the same time all but accepted . . . O’Brien’s opinions from
the outset.”

With respect to the petitioners’ due process claim, we have said that,
when a single individual commingles investigative, accusative, and adjudicative
functions, the mere appearance of prejudice may be sufficient to violate due

3
process. Appeal of Mullen, 169 N.H. 392, 399 (2016). We have also
recognized, however, that the legislature does not offend due process merely by
assigning investigative and adjudicative functions to the same administrative
body. Appeal of Trotzer, 143 N.H. 64, 68 (1998). Where investigative,
accusative, and adjudicative functions are commingled within a single
administrative agency, rather than within a single individual, a party alleging a
due process violation must show actual bias in order to prevail. See id.

In Trotzer, a psychologist was disciplined by the New Hampshire Board of
Examiners of Psychology and Mental Health Practice (psychology board). Id. at
65. He argued on appeal that his due process rights were violated when a
member of the psychology board who was recused from participating in the
disciplinary proceeding nevertheless “s[a]t at the prosecution table and
assist[ed] in the proceedings.” Id. at 69. We concluded that the recused board
member’s “conduct did not commingle investigative, accusative, and
adjudicative functions within the same individual.” Id. We explained:

Even assuming [the psychology board member] had an
investigative and accusative role with respect to the allegations . . .
there is no evidence to suggest, nor does [the psychologist] allege,
that she had an adjudicative role. To the contrary, [the psychology
board member] appropriately refrained from participating in the
actions of the board and neither voted nor deliberated in any
matter as a board member concerning [the psychologist’s]
disciplinary proceeding.

Id. Thus, the combination of investigative and accusative functions alone was
not sufficient to render the proceeding unconstitutional. Id. at 69-70.

Here, O’Brien did not commingle investigative, accusative, and
adjudicative functions. Even assuming he had an investigative and accusative
role, there is no evidence to suggest that he had an adjudicative role. There is
no evidence that he deliberated or voted with the board in reaching its ultimate
disposition as to whether the petitioners’ conduct came within RSA 328-D:6
and/or RSA 329:17, VI. See id. at 69; see also Mullen, 169 N.H. at 399-400
(concluding that agency commissioner did not have adjudicative function
despite ability to order a de novo adjudicatory hearing in certain
circumstances; commissioner “does not make the determination regarding
whether the department has proven” its case). Thus, to prevail in their due
process claim, the petitioners must demonstrate actual bias. Trotzer, 143 N.H.
at 68; see also Mullen, 169 N.H. at 399; Appeal of Office of Consumer
Advocate, 134 N.H. 651, 660 (1991); Appeal of Beyer, 122 N.H. 934, 940
(1982).

The petitioners have not demonstrated actual bias. The mere fact that
O’Brien is a member of the MRSC does not establish actual bias. See Trotzer,

4
143 N.H. at 68 (stating that “it is permissible for one assistant attorney general
to represent the board in its quasi-judicial capacity and another assistant
attorney general to prosecute the case before the board, provided no actual
bias exists” (quotation and brackets omitted)); Appeal of Maddox a/k/a
Cookish, 133 N.H. 180, 182 (1990) (concluding no actual bias shown where
adjudicator was employee of agency that plaintiff had brought action for
damages against). Further, the petitioners’ arguments that O’Brien’s statutory
duties or his professional relationships raised an appearance of bias are per se
insufficient to meet their burden of showing actual bias. See Mullen, 169 N.H.
at 399 (differentiating apparent bias from actual bias). As to their claim that
the effect of O’Brien’s bias on the proceeding became “self-evident” when
members of the board critically cross-examined the petitioners and their expert
but not O’Brien, we have reviewed the transcript of the hearing and cannot say
that the board’s questions demonstrate the existence of actual bias. The
questions posed by the board members primarily sought to assist the board in
conducting the proceeding. See Trotzer, 143 N.H. at 68. We thus find no due
process violation.

In addition to their due process argument, the petitioners contend that
allowing O’Brien to testify violated RSA 329:18, II. See RSA 329:18, II (2017)
(authorizing the board to “retain expert witnesses . . . to assist with any
investigation or adjudicatory proceeding,” but providing that members of the
board “are not eligible for retainment”). They point out that O’Brien, as a
member of the MRSC, was “affiliat[ed]” with the board, and argue that “the
Board and the MRSC are indistinguishable for the purposes of the statutory
prohibition on expert witness retention” because “[t]he Board and the MRSC
work with the same purpose and have the same duties, responsibilities and
privileges.”

Even assuming, without deciding, that RSA 329:18, II prevents board
members from testifying at adjudicatory proceedings before the board, as
opposed to merely preventing them from being compensated or “retained” as
expert witnesses for such testimony, nothing in the record suggests that
O’Brien is a member of the board. See RSA 329:2 (2017) (“There shall be a
board of medicine consisting of 11 members . . . .”); RSA 329:4, I (2017) (“The
commissioner or the medical director of the department of health and human
services shall serve as a voting member of the board . . . .”); RSA 329:4, II
(2017) (“The remaining 10 members of the board shall be appointed . . . by the
governor with the advice and consent of the council.”); N.H. Admin. R., Med
103.01 (“The board consists of 11 members who are appointed by the governor
. . . .”). Thus, the statute does not apply to him. See Appeal of FairPoint
Logistics, Inc., 171 N.H. ___, ___ (decided Sept. 28, 2018) (slip op. at 6) (“[W]e
will not add language to a statute that the legislature did not see fit to
include.”). We do not agree with the petitioners that any shared purpose or
similarity in duties or powers transmutes MRSC members into board members
for purposes of RSA 329:18, II. See id.

5
 We turn now to the petitioners’ arguments concerning the sufficiency of
the evidence before the board. They argue that the board’s ultimate
conclusions that the petitioners’ conduct fell below the standards of RSA 328-
D:6, IV and RSA 329:17, VI, respectively, are not supported by sufficient
evidence. In essence, they argue that their testimony at the hearing, as well as
the testimony of their expert and the evidence they submitted to the board,
established that their treatment of K.H. was appropriate, notwithstanding
O’Brien’s testimony to the contrary.

RSA 328-D:6, IV provides that “[t]he board, after hearing, may take
action against [a physician assistant] licensed under this chapter upon finding
that the licensee . . . [h]as engaged in dishonest or unprofessional conduct or
has been grossly or repeatedly negligent in practicing his or her profession
. . . .” The board found that Dillon’s conduct came within this statute. RSA
329:17, VI(c) provides that “[t]he board, after hearing, may take disciplinary
action against [a licensed physician] upon finding that the [physician] [h]as
displayed medical practice which is incompatible with the basic knowledge and
competence expected of persons licensed to practice medicine or any particular
aspect or specialty thereof.” The board found that Williams’ conduct fell within
this statute.1 This is a close case, however, having reviewed the record, we find
that the petitioners have failed to demonstrate that there was no competent
evidence from which the board could conclude that Dillon’s conduct was, at a
minimum, unprofessional, and that Williams’ conduct was incompatible with at
least an aspect of the medical competence expected of licensed physicians. See
RSA 328-D:6, IV; RSA 329:17, VI(c). Where, as here, the board was faced with
conflicting testimony from medical experts, it could resolve such conflicts by
using its own expertise and technical judgment. See Dell, 140 N.H. at 496;
Appeal of Gamas, 138 N.H. 487, 490-91 (1994).

The petitioners further argue that certain of the board’s factual findings
are not supported by sufficient evidence. Specifically, they argue that the
board’s conclusion that Dillon failed to appreciate abnormalities in K.H.’s CBC
lab results is not supported by sufficient evidence, and that the board’s
conclusion that Williams did not personally examine K.H. is not supported by

1 In its order, the board stated that “[u]nder RSA 329:17 VI [it] may take disciplinary action

against [a licensed physician] if it determines that a licensed physician . . . ‘has displayed a
pattern of behavior which is incompatible with the basic knowledge and competence expected of
persons licensed to practice medicine . . .’ .” However, RSA 329:17, VI(c) was amended in 2009,
two years prior to the petitioners’ treatment of K.H. Laws 2009, 206:14. This amendment
removed the requirement that the physician have displayed a “pattern of behavior,” and replaced
it with a requirement that the physician have displayed “medical practice which is incompatible
with the basic knowledge and competence expected of persons licensed to practice medicine or
any particular aspect or specialty thereof.” Id. (emphasis added). Although the board seems to
have misidentified the pertinent statutory language, its ultimate conclusion was that Williams
“has displayed medical practice which is incompatible with the basic knowledge and competence
of a person licensed to practice medicine.” Thus, its ultimate conclusion tracks the correct
statutory language.

6
sufficient evidence. With regard to the challenged finding as to Williams, it is
unclear if the board actually concluded that Williams did not examine K.H. In
its order, the board states that “Williams should have used the information
provided to him by Respondent Dillon to determine the need to actually
examine K.H. in the Emergency Room.” The board also states that Williams’
“lack of recall about whether he physically examined K.H., and his failure to
give closer observation of a patient with multiple-organ dysfunction, fell below
the standard of care owed to K.H.” Even assuming these statements amount to
a finding that Williams did not examine K.H., we conclude that the petitioners
have failed to meet their burden of showing that there was no competent
evidence from which the board could properly make this finding. See Dell, 140
N.H. at 497-98. Specifically, in a letter submitted to a board investigator,
Williams stated that his “only involvement” in K.H.’s treatment was discussing
said treatment with Dillon.

With regard to the board’s finding that Dillon failed to appreciate
abnormalities in K.H.’s lab results, here too we conclude that the petitioners
have not shown that there was no competent evidence from which the board
could properly make this finding. See id. In a letter sent to a board
investigator, Dillon stated that K.H.’s “CBC was normal.” Counsel for the
petitioners represented to the board, as well as to this court, that this
statement was included in Dillon’s letter due to counsel’s own error, and asks
that we not attribute his error to Dillon. Such errors are, of course,
regrettable. Nonetheless, even assuming without deciding that the board
should have accepted counsel’s representations and disregarded the mistaken
statement in Dillon’s letter, other evidence in the record provides support for
the board’s conclusion that Dillon failed to appreciate abnormalities in K.H.’s
lab results. Specifically, in a deposition that was submitted to the board,
Dillon stated that K.H.’s CBC values “were not clinically significant.”

For the reasons discussed above, we affirm the board’s order.

Affirmed.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

7