Thursday, April 7, 2011

The Eyes Have It

Chase v. Agency of Human Services, 2011 VT 31 (mem.).

Starting the saga of Dr. Chase with this case is a bit like biting into the bottom of a sandwich.  It is essentially a mouthful of bread, which is just going to make all the contents pour out.

So let us begin with the top slice.  Dr. Chase practiced general ophthalmology and eye surgery in Burlington for over thirty years.  During that time, he allegedly developed two specialties: cataract surgery and convincing patients that they needed the former.  From the record, Dr. Chase comes across like the man with an amazing hammer, to which every task has begun to look like a nail.

In 2003, things started getting cloudy for Dr. Chase when a former employee was talking to officials from the State about the hazy practices that she had witnessed Dr. Chase using.  These included: making inaccurate diagnoses, falsifying medical records, and pressuring patients to sign up for cataract surgery.  According to the employee, Dr. Chase would apparently tell a patient that he or she had cataracts.  If the patient resisted the diagnosis, Dr. Chase would manipulate the patient’s record or dilate the patient’s eyes to skew test results.  The end result is that the patient usually came around to Dr. Chase’s way of seeing things and signed up for the cataract surgery.

As a result of what the employee was saying to officials, Dr. Chase’s world started to fog up.  The Board of Medical Practice began an investigation.  Dr. Chase gave up his medical license.  A few disgruntled former patients started a class action lawsuit against Dr. Chase.  Individual patients began lining up for civil lawsuits.  And a federal indictment led to 35 criminal charges against the good doctor. 

The results, however, were a bit more mixed.  Dr. Chase was acquitted by a jury on all 35 counts in federal court.  He won his first and only civil jury trial against a patient.  Eventually the class action resolved in mediation.  On the other hand, the Board of Medical Practice sanctioned Dr. Chase for unprofessional conduct and imposed weighty conditions if he ever sought to reactivate his license.  Dr. Chase appealed this determination, but the judgment was affirmed by the SCOV in 2009. 

All in all, it has been a busy few years for Dr. Chase outside the clinic.  The present case is the last gasp of a tangential detour that spun off like a sitcom from the primary licensing case.  In 2007 when it looked like the Medical Board was preparing to rule against him, Dr. Chase filed a lawsuit in Superior Court to block the Board.  At that time, he alleged violations of due process and asked the trial court to: enjoin the Board from acting; to grant him an outright dismissal of the case; and to award monetary damages for a number of alleged violations that occurred during the investigation and hearing.  In 2008, the SCOV took the case up and found the requests for injunctive relief and dismissal to be moot—since by that time the Medical Board had already made their decision.  Moreover, the SCOV concluded that the Board had primary jurisdiction over the licensing process, meaning that the Superior Court could not have granted the relief sought anyway. 

Because the licensing case had ended the question of whether the Board, the State, or its employees violated Dr. Chase’s civil rights was now ripe for review, and the SCOV remanded it to the trial court for adjudication.

That brings us back to the present.  The gist of Dr. Chase’s claims on remand is that the State treated him badly and in violation of the basic protections and procedures that everyone enjoys regardless of their innocence or guilt.  At the trial court, though, Dr. Chase’s claims were quickly dismissed and all of the defendants released, except one.  Dr. Chase had previously alleged that an Agency of Human of Services investigator purposefully lied in drafting an affidavit that was signed and adopted by the former employee whose allegations started this process. 

I should note here that it is common practice for attorneys and investigators to draft affidavits for clients and witnesses.  Part of it is practical; the attorney knows what she wants and will draft what she needs in order to see how much the witness can swear to be true.  Sometimes, a witness has neither the time nor ability to draft it himself.  But, woe to the attorney or investigator who does not carefully review the affidavit with the witness and ends up with an affidavit that contains incorrect information or information that the witness cannot support.  Nothing generates colder sweat than sitting in a deposition as the other side takes the witness step-by-step through disavowing each paragraph of the affidavit that you are using to support your case. 

So by drafting the affidavit and using his words, instead of hers, the investigator was, in a way, just following the standard procedure for generating this type of document.  Unfortunately, this difference came out in a deposition where the employee admitted that she did not draft the affidavit and did not agree with the wording the investigator had chosen.

This revelation led Dr. Chase to allege that the investigator knowingly drafted a false affidavit, which was responsible, in large part, for the troubles Dr. Chase went on to experienced.  The State disagreed, and it moved for summary judgment.  The trial court granted it, ruling that the investigator was entitled to qualified immunity for the affidavit for two reasons.  First, no case law supports the idea that submitting a false affidavit violates due process (it is more of a breach of ethics than procedure).  Second, there is no evidence that the investigator generated a false affidavit.

On appeal, the SCOV affirms and upholds the trial court.  By parsing out the statements, the SCOV finds that all of the alleged falsehoods are really drafting discrepancies more than anything else.  The witness agreed to the essential elements of each statement.  This leaves Dr. Chase with little to do but to argue that the smaller statements were pitched against him and implied greater violations.  Specifically, Dr. Chase argues that it comes down to the fact that the Investigator used stronger words or different phrases, and that the employee disagreed with the word choice in her deposition.  But, as the SCOV points out, there has to be more, and wordsmithing discrepancies will not open the door to defeating qualified immunity.  And thus, the case is dismissed.

In the end, the eyes have it, and the decision is affirmed.  

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