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Virginia Board of Medicine And Virginia Department of Health Professions v. Zackrison

Court of Appeals of Virginia

March 14, 2017

VIRGINIA BOARD OF MEDICINE AND VIRGINIA DEPARTMENT OF HEALTH PROFESSIONS[1]
v.
LEILA HADAD ZACKRISON, M.D.

         FROM THE CIRCUIT COURT OF HENRICO COUNTY John Marshall, Judge

          Erin L. Barrett, Assistant Attorney General (Mark R. Herring, Attorney General; Cynthia V. Bailey, Deputy Attorney General; Allyson K. Tysinger, Senior Assistant Attorney General, on brief), for appellants.

          Jacques G. Simon (Greg Skall; Jason C. Hicks; Womble Carlyle, Sandridge & Rice LLP, on brief), for appellee.

          Present: Judges Beales, Decker and Russell Argued at Richmond, Virginia

          OPINION

          WESLEY G. RUSSELL, JR., JUDGE

         The Board of Medicine appeals the decision of the circuit court vacating the Board's case decision and order disciplining Dr. Leila Hadad Zackrison, appellee, for violating certain laws governing the practice of medicine and surgery by physicians licensed in Virginia. The Board specifically challenges the ruling of the circuit court holding that the Board violated Dr. Zackrison's due process right to a meaningful opportunity to be heard when it determined that Dr. Zackrison did not qualify as an expert witness. Although we find that the Board erred in prohibiting Dr. Zackrison from testifying as an expert, we, for the reasons that follow, reverse the decision of the circuit court and reinstate the Board's finding of a violation and the sanction it imposed.

         BACKGROUND

         The Board is charged with the licensure of physicians. Code §§ 54.1-2902, 54.1-2911 to -2928.1, 54.1-2929 to -2941. The Board specifically may deny, suspend or revoke a medical license or reprimand a physician based on "unprofessional conduct." Code § 54.1-2915. "[U]nprofessional conduct" includes the "intentional or negligent conduct in the practice of any branch of the healing arts that causes or is likely to cause injury to a patient, " Code § 54.1-2915(3), or conducting a practice in a manner dangerous to patients or the public, Code § 54.1-2915(13). To carry out these functions, the Board is empowered to investigate, prosecute, and adjudicate potential violations by individual physicians.[2] Code § 54.1-2400(7), (9), (11).

         Pursuant to these statutory responsibilities, the Commonwealth instituted a proceeding regarding Dr. Zackrison, a graduate of Loma Linda University Medical School. Dr. Zackrison completed both a residency in internal medicine and a fellowship in rheumatology at Georgetown University. She has been board certified in both internal medicine and rheumatology since the 1990s and, at all times pertinent to the issues in this appeal, has been a Fellow of both the American College of Physicians and the American College of Rheumatology. Additionally, she sought certifications/credentials in herbal therapy and homeopathy, anti-aging medicine, and other areas, including pursuing a Master's degree in Metabolic and Nutritional Medicine. Without interruption, she has been licensed by the Board to practice medicine in Virginia since 1991.

         In her practice, Dr. Zackrison has treated over 25, 000 patients with rheumatological diseases. She started treating patients with Lyme disease in 1999, initially seeing 1, 500 per year and seeing approximately 600 per year since 2005.

         By letter dated August 11, 2014, the Commonwealth notified Dr. Zackrison that an administrative hearing was to be held before the Board to address allegations that she had violated "certain laws governing the practice of medicine in Virginia" in her treatment of "Patient A" over the course of several years. Attached to the notice was a Statement of Particulars wherein the Commonwealth alleged that Dr. Zackrison diagnosed Patient A with several conditions, including Lyme disease and infections, without adequate support in the medical records to make such a diagnosis; provided inappropriate treatment, particularly in the form of extensive antibiotic use; and failed to maintain adequate records documenting her care.

         A two-day review hearing began on February 19, 2015, and the Board stressed that it "look[ed] at this [case] as a standard of care case for a single patient, nothing more, nothing less." The Commonwealth first offered the testimony of a Department of Health investigator and then called two physicians to testify as expert witnesses: Dr. William Petri, Jr., an infectious disease specialist, and Dr. Janet Lewis, a rheumatologist.[3] The expert opinions and curricula vitae of these witnesses were admitted into evidence without objection. The Commonwealth's experts testified to their opinions regarding the standard of care applicable in Patient A's case. They described their views on which tests were appropriate to administer and what conclusions should be drawn from the results of those tests. They opined Dr. Zackrison's testing and treatment methods did not meet the standard of care applicable to Patient A's case. In forming their opinions, the Commonwealth's experts relied heavily on guidelines promulgated by the Infectious Disease Society of America ("IDSA"), a private organization of health care professionals often cited by the federal Centers for Disease Control and Prevention. IDSA has published peer-reviewed guidelines related to the diagnosis and treatment of Lyme disease.

         After the Commonwealth's presentation of evidence, Dr. Zackrison testified in her own defense. Her evidence included two discs, one featuring a "slide presentation from Dr. Zackrison regarding each of the points in the statement of charges" and the other containing peer-reviewed materials "backing up the slide presentation." Dr. Zackrison's curriculum vitae also was on one of the discs. During Dr. Zackrison's testimony, her counsel sought to qualify her as an expert on the practice of rheumatology and the applicable standard of care. After counsel's voir dire exploring her academic and practice credentials, the Board, sua sponte, stated, "Dr. Zackrison is the respondent. You have an expert who is going to testify tomorrow. [The respondent] needs to focus on particulars of the statements. . . . [S]he can tell us what she does in her practice; she has an expert tomorrow." The following colloquy ensued:

Counsel: So she is not admitted as both an expert and the respondent?
Board: I would say no.
Counsel: Despite her -
Board: She is admitted as the respondent. She's welcome to talk to us about what she does in her practice. She's welcome to address the statement of particulars. Tomorrow you have an expert who will be testifying.
Counsel: Because I believe that when we offered the C.V., we identified her as an expert in rheumatology.
Board: She certainly is a rheumatologist. . . . She's responding, she's here today as the respondent. . . . We accept her credentials as a board certified rheumatologist. . . . We accept her credentials as a physician. She's the respondent and needs to respond to these particular charges. . . . We accept her board certification. You have an expert who is testifying tomorrow, so we are accepting her as the respondent and as a board certified rheumatologist. . . .
Counsel: . . . I just wanted to make the point that she was offered as a respondent and as an expert in her field, but I understand your ruling of rejecting her as an expert in the field.

         Dr. Zackrison proceeded to address the allegations. Her testimony included references to the standard of care she applied with respect to Patient A's varied symptomology. Her testimony also included references to the materials she had introduced via disc. The Board at one point interjected, "We've had the literature. And as I said, the opportunity for expert testimony and to rebut those experts today will come from Dr. Horowitz tomorrow. It's [her] opportunity today to tell us why she did what she did with this particular patient." Ultimately, Dr. Zackrison's counsel emphasized her objection to the Board's ruling:

Mr. Chairman, we are certainly going to make a record this time around, and I wanted to make sure that the record is made. Number one, you are precluding Dr. Zackrison from testifying as an expert here just because she's a respondent. I am aware of no rule, no statute and no case law that supports that particular ruling. And she is giving - she[] stands accused here of doing non-evidence based medicine. And what she wants to discuss is why she - just like you said, she wants to discuss why she did something and how she did it, and she's addressing specifically what the witnesses, what the State witnesses said, you are precluding her, telling her not to read the expert testimony. So I want to understand the ruling correctly for the record. Is she precluded from testifying as an expert because she is a respondent?

         The Board responded, "Yes, " eventually adding that

she may testify within her scope of practice as a board certified rheumatologist. She may give her opinion, which we give weight to because she's a board certified rheumatologist. You have an expert who is coming tomorrow to testify, and we are expecting [Dr. Zackrison] to respond to these particular charges as the respondent.

         After additional back and forth, counsel sought further clarity, asking, "I wanted to make sure that I know your ruling that Dr. Zackrison is precluded here from testifying as an expert in rheumatology on her own behalf because she is the respondent; that was your ruling, correct?" In response, the following exchange occurred:

Board: Dr. Zackrison is the respondent. She has experts and we are accepting her testimony as a board certified rheumatologist.
Counsel: But the ruling is that she cannot testify as an expert in rheumatology today?
Board: She is a rheumatologist. We are accepting her testimony as a rheumatologist. I'm not going to play word games with you. . . . She's here as the respondent . . . .
Counsel: And as I'm offering her as the respondent and as an expert in rheumatology.

         Counsel for the Board then interjected:

As the respondent, she is in a similar situation to even though this is not a criminal proceeding, to a defendant in a criminal trial, she would testify as herself. As the defendant, she wouldn't simultaneously testify as an expert witness. She is testifying here as the treating physician. She's responding to the statement of particulars here as the treating physician. The [Board] recognizes her credentials and her background. I'm not quite sure why [the Board's] ruling is not clear, but hopefully I have shed some light on it.

         Dr. Zackrison's counsel then inquired, "[W]hich statute and which regulation of Virginia supports the fact that a respondent is excluded from testifying as an expert witness on her behalf?" The Board's counsel responded, "There is no rule, there is ...


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