july of two thousand and eleven he comes before you today asking that you reverse and remand this case and direct that he be given a hearing before the medical disciplinary board we're coming before you  in our appeal with three issues one that there was no board member present during his hearing there should have been one present the other is that an expert in the case that testified for the department offered an opinion lastly that the punishment of a revocation is excessive in light of some of the cases that we cite where similar conduct the maybe more we just kind of was given a six month suspension is the first issue that we talk about is this issue of on up the the board and in the same twenty five i'll see s sixty slash seven requires a board member to be present the language says that the board shall be present and it also says that they shall continue the case if they are not able to say what do you think would be the reason to require a portrait pretty pretty well i you saying that medical doctor would have to be that one person would have to be present and we're saying that a member of this is you know it could be a lay person is a member of the or they could be a lay person correct but it would be a member of america and there's some misconception about what the law says and i'll get to that in a second but this haste but chiropractor where the chiropractor said yeah i should have a hearing but that chiropractor on the board is biased against me and the judge said by the take that might i say that we do we're arguing that they don't have the authority to decide that because there are two lay people on the board we can ignore what the lot with the legislature said they can't the site around decision based on the fact that there was one point member present as in problems as important in these cases where there is language suggesting that others can read the transcript or all premised on factual situations where there is one board member present and so it you and not to mention the fact that abramson is a medical licensing board case it's not even if this is a playboy that abramson i believe the trial court incorrectly that doctors continuing to prescribe so there's a treatment where the doctors seeing that the imperative right and then that ends starts in march of zero two and ends in november and the doctor says to the patient that he's got feelings for her and he's going to stop therapy and then there are some prescriptions that are filled after november until probably march of two thousand three there's no evidence that he actually sat there and wrote the prescription but there's no doubt that they were filled under his name so we don't know if they were on refills or or what but there's no doubt those prescriptions were being filled under his name while they were having a relationship now a doctor or a member of the disciplinary force going to be able to look at that and judge and assess whether that's really a bit of patient doctor relationship the there's issues of transfer but then does that doctor have to be present medication when he started this relationship no you know it there's no doubt that he was prescribing from march of two thousand and two when they started with each other through november of two thousand two and there's no doubt that she fill prescriptions but you could show that she testified that she received description i don't believe that's the record indicated i believe that the record indicates that she entered into d then there may have been occasions in which she did prescribe medication i think there was occasions where he was giving her medicine dereck aid getting her medicine directly so when he gives her medicine directly you don't have to be a doctor to know that that is part treatment no i would disagree respectfully is here you would disagree with that i think that dr i think that it's obviously you look at the fa in this case fact oh i mean the case law there stair case after case that holds that when you would give medication to a patient that that is part of medical treatment right but the doctor is entitle to have a member of the medical disciplinary board present to evaluate facts and credibility and to use that person's judgment even if they're a lay person i mean there clearly  also an employee attempted suicide and there was no attempt to even transfer any of the care what would be bad facts could make bad law i mean yes there is testimony of him giving her a controlled issues that happen every day out there you're say you don't even though the law the legislature said that if the disciplinary board is not sitting at the time and place fixing the notice or the time and place to which the hearings  the department shall continue such caring for a period not to exceed thirty days it goes on to say in subpoenas only the board can issues of the penis only the disciplinary board can look at some confidential records other people can't so assessments of experts where it's it's specifically it's not supposed to be like it is a reset where there's a jury and a judge and yeah there's a lot of medical issues but we have experts and the jury most its way through it but hear it doesn't mean that the department gets to ignore that legislatures law that act and change it otherwise and they're a creature of legislation they can't decide on their own not to have that happen any one involved in this entire proceeding would be prejudiced by would be swayed by those two questions of users given by this individual certainly you're not suggesting that we would be swayed like what  suggesting is that it's further evidence for further facts for you to see how there there does need to be a member of the disciplinary board present that even if in this case it seems obvious that the law that we might be creating if we say that it doesn't matter if a member of the disciplinary board is present would would be damaging to many cases and many doctors that go before the board and it's not what is in the law i do want to emphasize that the case is relied on by the state abramson there was a board member present in  there was a board member present in the mortgage which is the us supreme court case from one nine hundred thirty six the supreme court the u s supreme court said talking about the fact gathering the credibility that duty cannot be performed by one was not considered evidence or argument it is not an impersonal obligation it is a duty akin to that of the judge the one who decides must hear it these are important principles that they need to be guarded because as i said before i i practiced before the department of fresh regulation all the time many many clients and to get to the point where you would have more than one member of the disciplinary board and i don't know if it's for financial reasons or whatever final argument that i want to make which is that even there was a judge recommended a three year indefinite suspension the board agreed and the allowed to just revoke without really giving a while they get it he agrees but nothing that the board or they all j didn't know so we're asking that the case be reversed and remanded so that it be directed that there be  a hearing with a board member on the issue of the expert illustrates how that can be a problem if you let it pick just substituted for an hour practice case because gross negligence cases are the most prominent case that lawyers when they have sex w there's a discipline out there already for six months this doctor has was fifty eight when this happened had a career that was beyond reproach nobody suggested that at balancing somebody who has what ever it is that issues that he had at that time but has to throw the doctor away who does a lot of good and helps people who really need it and say you're done that's it i would i would balance the person's life gets i have obviously understand what you're saying and that it's a serious we want to send a serious message and people lead be disciplined but i don't think that his life should be thrown away and he shouldn't be able to practice and that's why i asked you what do you suggest that one do from a reasonable you're a lawyer with a li you're telling me six months or you are or you want to tell me what it really should be no i would pay six months or if pandi and these other cases said something different i mean what do we have i seen cases where there been drug or alcohol problem sex addition sex with patients were people being put on probation and had to go to this burg alabama for three or four months to get extensive therapy and be evaluated and monitored and they're never even suspended i see that all the time so i mean this is an extreme case and i think it's it's definitely much more than six months and i don't there's any way to the several weeks worth of dealing with the punishment other than to reverse it really for the court to determine what the appropriate fit of this but i mean we are hearing from i mean certainly constrained by the fact that this case i favorite that your doctor didn't really appreciate the seriousness of what he did and therefore they were concerned about his treatment of other patients because he tried to make it the ninety year olds something with another patients so he didn't accept responsibility tried to put it off on all the complaining oh then if civil complaint get in and so that i mean there's a this which is why medical disciplinary or membership present is if you continue treating and seeing in the office and have sex in that context i think that's more regis you know it might seem strange to compare different types of creatures conduct which we can all agree are great but that's what we do with moyers and i think that in quantity where the person was getting treatment had been and there was a sexual relationship and  it if they get married or something else or but i mean you know so so the revocation is i feel i with me the board is very much participating in the decision making the board is receiving the report from the administrative law judge the board is than reviewing that entire record reviewing the transcript at least one board member personally and hearing and that's a mistake that promise there is no such requirement as a member of the process and there is no such requirement as a matter of statutory by due process what everyone tells us abramson tells us is if there is an express statutory requirement then you have to follow the expressed ashtray requirement and there is no express statutory requirement legislature ever no actually that's why i think that highlights that the position that you have planned is taking is rather unusual and would actually require a very expressed a legislative statement because typically it is not the case that they are viewing boards that participates in decision making and would also be personally hearing the evidence presented for example the pollution control board under the environmental protection act  a decision but none of the pollution control board members attend the hearing or conduct the hearing that's done by hearing officer and it's a similar situation in department employment security cases where there's  conducts a hearing and then there's a reviewing board so so that that would be quite a departure and there's no such expressed language expressed language is at least one board member must first meet and the hearing and counsel cited to a particular provision of  medical practice at that section thirty seven and the language there is that the branch will proceed to hear the charges and i think that ties into that mean that the board still proceed to hear the charges the court is hearing the charges the board's hearing the charges because it's receiving the evidence through the a l j and then it's reviewing and considering the evidence that's a hearing that doesn't require any type of personally that statute doesn't address any type of personal things there's a notice that is about when the board is not sitting through the context of that sentence that has to do with if the hearing is interrupted here's what's going to happen you can't continue it for more than thirty day it's so we don't believe that anything that statute meets this expressive language requirement that comes from a principle there's nothing in the statute that requires one board member to personally attend and then if you don't have a statutory requirement you're back to was there some type of the process requirement and we look at the cases process the process would always be a higher required would mean if you process requires something of course that you don't have to require and so there's no need to go back to due process that we your argument is that the statute doesn't require i wonder same cover both points neither  a given these cases given what the statute says there is is no requirement that the board member at least one court never personally attend the board did what it was supposed to do under the statute the statute lays out what supports must do the hearing officer conducts the hearing the board receives the reports reviews the record makes a recommendation that's what the statute is directed toward and that's what happened here there's some idea put it that well the board members couldn't address credibility credibility in their rebuttal they recessed credibility by observing by looking at what the a l j found reviewing that and reading the transcript i mean they can see when someone is answering it basically and in consistently those type of things the credibility can be assessed there to make sure that there are no problems with cases that provide that letter members are not supposed to use the knowledge outside the record there should be a clear fully well developed  record so that traditional review can follow and you know anything that might have to be later determined is clearly set forth and developed in that record here you have the doctor's own acknowledge expert testimony but we did have the expert testimony in this case so given that there was that expert testimony given that there were the doctors of knowledge ments hearing that they were talking about your questions at the l g regarded we don't believe that there can be any question here of some type of prejudice from these questions that are we believe are proper in the first place the board and the director concluded same sanction or to the same say she should be applied in and the court says no you got it wrong but here we got a board saying three years suspension we got the director saying no he's going to  in support of the public interest there are two cases referred to and which six months suspensions were the same passion that was applied there those cases the fact that a lesser sanction was an issue in those cases does not make the director sanction unreasonable in this case the cases were different in some important respects one is simply the procedural posture of those cases because those cases are maximum regardless of and also the facts of those particular cases are thinking ethically different and i've outlined that more in the brief i've talked about some of the differences here the difference within the actual relationship and the difference underlying perper haps unspoken reason for them requiring expert evidence by the department is the existence of judicial review of the decisions of the medical disciplinary board while it may seem idle and foolish to abort compose a physicians to present elementary questions of medicine to them by way of testament money of one of their brethren yet it is far from idle to a court not trained in medicine which is called upon to determine the manifest weight of the evidence expert testimony whether coming down on the positive or negative side of farnese treatment is important point abramson reviewed the medical licensing board case a doctor who lied on his application and was licensing board part of the statute that says that the licensing board shall be present there's none of that language so it's perfectly acceptable i suppose for the abramson's you could argue that they should still be present but abramson can say look there's no legislation telling us that we're going to ask to be there in the case before this a disciplinary case the law clearly