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Appeals court again defers to state medical board

DFor the second time in two weeks, the Court of Appeals of Virginia has upheld disciplinary action by the Virginia Board of Medicine despite contrary rulings by circuit judges.

The March 21 decision means license revocation for a physician who had been accused of bizarre and disturbing techniques in battlefield medicine training for soldiers and other military staff.

John H. Hagmann sought a delay so his attorney of choice would be available for the hearing. The Court of Appeals said another firm attorney could have covered the hearing and that Hagmann was not necessarily entitled to a specific attorney.

Hagmann then failed to attend a board hearing after his request for a second postponement was denied. The board revoked Hagmann’s license at that hearing, a decision now restored by the Court of Appeals.

The case is Virginia Board of Medicine v. Hagmann, MD (VLW 017-7-072).

Unorthodox training

Hagmann owned a company that provided instruction at a federal military medical school. State regulators claimed that, in 2012 and 2013, Hagmann allowed students to perform unnecessary invasive medical procedures on one another. State officials also charged Hagmann with encouraging students to use alcohol and other drugs in unapproved and dangerous ways.

On March 12, 2015, the Board of Medicine summarily suspended Hagmann’s medical license and set a formal administrative hearing for April 22.

Hagmann asked for a delay and the board rescheduled the hearing for June 19.

Attorney Ramon Rodriguez III sent notice that he had been retained to represent Hagmann and asked for a second continuance, until the next board meeting in October.

The board chair denied a second continuance and also denied a motion for reconsideration of that decision. Rodriguez moved to disqualify the panel chair from the case. The board denied that motion, as well.

Rodriguez then “made clear that neither Rodriguez nor Hagmann, nor anyone on Hagmann’s behalf, would attend the June 19, 2015 hearing,” according to the Court of Appeals opinion.

Unsurprisingly, the board revoked Hagmann’s license after the one-sided hearing.

Doctor prevails in circuit court

On initial appeal, Spotsylvania County Circuit Judge Joseph J. Ellis remanded the matter to the board for a new hearing.

Ellis rejected the doctor’s claim that the panel chair should have stepped aside and the claim that Hagmann was denied his personal right to be present.

Ellis, however, said the board had denied Hagmann adequate time to prepare a defense and violated his due process rights by denying a “meaningful opportunity” to have counsel present.

The medical board appealed to the Court of Appeals.

Appeals court backs medical board

The three-judge Court of Appeals panel found no error in denial of a second postponement. The court said it was bound to accord deference to scheduling decisions of a hearing officer unless an error of law was shown.

The board’s denial of the motion for a second continuance did not deprive Hagmann of his due process right to counsel of his choosing, the panel ruled.

“Hagmann had already received one continuance and had more than three months to retain counsel and prepare for his hearing after receiving the initial notice of suspension,” wrote Judge Marla Graff Decker for the court panel.

“When the matter was rescheduled for a week during which Hagmann’s newly retained attorney, Rodriguez, had a conflict, Hagmann requested a second continuance. The initial request provided no explanation regarding the basis for his attorney’s conflict,” Decker said.

The appeals court also pointed to legal resources available to Hagmann. Rodriguez’s firm advertised as “Lawyers for Complex Medical Cases” and had four different offices in Virginia.

Nevertheless, Hagmann “provided no indication that any attempt had been made to arrange for substitute counsel, either inside or outside Rodriguez’s law firm…,”  Decker wrote.

Citing “analogous” principles in the criminal context, the court held the board did not abuse its discretion in rejecting a second delay for Hagmann “because his attorney of choice was unavailable.”

The court also cited logistical difficulties for state regulators and their witnesses as well as members of the board itself if the hearing were to be rescheduled.

The court rejected Hagmann’s claim that he lacked adequate notice in order to prepare for the June hearing. Hagmann had most of the state’s evidence 14 weeks in advance, the court said.

Further, the court said the record supported Ellis’ ruling that the denial of a second continuance did not violate the doctor’s due process rights to be present and confront adverse witnesses.

The appeals court said Hagmann failed to preserve his objection that the board did not produce certain evidence.

Addressing the recusal motion, the appeals court agreed with Ellis that the record did not support a call for the panel chair to step aside.

“The panel chair’s statements, while perhaps inartfully phrased, support the conclusion that the statements amounted to the provision of alternative rationales for the continuance ruling,” Decker wrote.

The appeals court remanded the case to the circuit court with directions to reinstate the judgment of the board revoking Hagmann’s medical license.

Second victory for medical board

The Hagmann ruling came a week after the Court of Appeals reinstated a disciplinary sanction against another Virginia doctor.

In the case of Virginia Board of Medicine v. Zackrison, MD (VLW 017-7-065), the court said the board should have allowed the doctor to testify as an expert on her own behalf. Nevertheless, the appeals court said the doctor failed to show she was prejudiced, since the board listened to her testimony regardless of that ruling.

Although the doctor received a reprimand and a period of probation, the iiiZackrisoniii decision established that a doctor up on charges before the board should be allowed to testify as an expert with proper qualification.

The outcomes of the two cases were not unexpected, said Glen Allen lawyer Michael L. Goodman, who regularly represents medical providers before health care boards. He was not involved in either the Zackrison or the Hagmann cases.

The Board of Medicine does not readily grant second continuances, Goodman said. He said he once was denied a postponement when a hearing conflicted with his 25th wedding anniversary.

“I’ve come to learn that what you want may not be what you get,” Goodman said.

And failing to attend the scheduled hearing deepens the difficulty for a physician, he added.

“If you’re not going to show up, you’re on notice it’s not going to go well. Not showing up is going to get you a bad result,” Goodman said.

Zackrison’s complaint about exclusion of expert testimony from the responding physician ignored the fact that the board generally gives wide latitude for a doctor to explain her practice, Goodman said.

“She still got to say the same thing she would have if she had been allowed to qualify as an expert,” he said.

The effect was “no harm, no foul,” Goodman said of the Zackrison decision.

Rodriguez, the attorney for Hagmann, did not respond to a request for comment.

VLW 017-7-072