Just what the Doctor Ordered . . . Well, not really

By Andrew Delaney

In re Jon Porter, M.D., 2012 VT 97

This case turns partially on the definition of “legally liable” and—though no one is going to say it out loud—partially on common sense.

Here’s the scenario: Physician Assistant (or “PA” for short) overprescribes and perhaps diverts certain controlled substances.  Doctor is responsible for supervising PA.  Doctor, acting on a tip, concludes that PA is improperly prescribing drugs.  Doctor files a complaint against PA with the Board of Medical Practice.  Question: Is Doctor guilty of unprofessional conduct based on the PA’s acts?

This is where common sense comes into play—Doctor discovered and reported the PA’s misconduct.  Ergo, why should Doctor be held liable for the PA’s professional misconduct?  But as anyone with more than a fleeting acquaintance with the law knows that common-sense lies in the hands of the narrator and is rarely the end of the discussion.  Still, in the end, what seems like the initial common sense response prevails.

So, as noted above, Doctor filed a complaint with the Board of Medical Practice and the Board, in turn, investigated the PA.  The PA admitted to improper prescribing, stipulated to unprofessional conduct and professional negligence, and was disciplined.

Later, the State filed a specification of charges against the Doctor.  The State alleged, among other things, that under 26 V.S.A. § 1739, Doctor was “legally liable” for the PA’s acts, and thus, guilty of unprofessional conduct.  Doctor moved to dismiss on that point, arguing that while the statute does provide a basis for a supervising physician to be held liable for the tortious acts of his PA, it does not contemplate vicarious liability in professional disciplinary proceedings.  The Board denied the motion.

After a hearing, a three-person committee issued a proposed decision and order.  Basically, the committee found that because 26 V.S.A. § 1739 creates a principal–agent relationship between doctors and PAs, Doctor was guilty of unprofessional conduct as soon as the PA’s guilt was established.  The committee did not recommend any discipline, however.  And it recommended dismissing the remainder of the charges (five in all).  Both parties objected to the committee’s proposed decision.

So, the Board held a hearing to determine whether to accept, modify, or reject the committee’s proposed decision and order.  The Board rejected the committee’s recommendation regarding unprofessional conduct, reasoning that Doctor didn’t engage in the conduct, wasn’t aware of it, and couldn’t reasonably be expected to be aware of it.  Accordingly, the Board concluded that Doctor needn’t be held vicariously liable for the PA’s unprofessional conduct.  The Board adopted the rest of the committee’s findings and conclusions and dismissed all of the charges.

And that’s how we end up at the SCOV.  There’s a relatively-lengthy discussion of the applicable standard of review regarding the Board’s decision.  Here it is in one sentence: Board decisions get deference—even heightened deference—on decisions within its scope of expertise; decisions outside the scope of its expertise get nada.

The statute at issue, 26 V.S.A. § 1739(a), provides: “The supervising physician delegating activities to a physician assistant shall be legally liable for such activities of the physician assistant, and the physician assistant shall in this relationship be the physician’s agent.”  Statutory interpretation means . . . effectuate the intent of the Legislature . . . [use the] plain language . . . if clear, stop; if not . . . legislative history, legislative intent . . .

Regular readers know this drill.

This is all a big setup to break out Black’s Law Dictionary and look up the phrase “legally liable.”  After doing so, the SCOV concludes that the “phrase ‘legally liable’ does not encompass responsibility for violations of professional obligations.”  The SCOV also notes that the Legislature makes a semantic distinction between “liability” in the civil-action context and “guilt” in the professional responsibility context.  And so, the SCOV concludes that the Doctor is not “legally liable” for the PA’s unprofessional conduct in the professional responsibility setting. 

Though the State also argues that the statute provides an agency-basis-liability theory, the SCOV concludes that this is an imagination stretcher, reasoning that this basis applies in tort and contract situations, not professional responsibility proceedings.

The State makes an apparent doctors-and-PAs-are-just-like-real-estate-brokers-and-salespeople-in-the-professional-responsibility-context argument (with a case to back it up), but the SCOV rejects it out of hand.  First, the SCOV reasons, the real-estate-licensing and medical-licensing regimes are, like, way different and stuff.  Second, there’s a lot more stuff in the medical-licensing structure than there was in the real-estate-licensing structure at the time of the real-estate-licensing-professional-responsibility case.  Third, the SCOV wasn’t talking about “legally liable” in that case; it was talking about vicarious liability for salespeople’s acts.  If that’s not enough, we’re talking about statutory interpretation in this case.  So, no help for the State there.   

Finally, the SCOV takes a dig at the Board, noting that while the SCOV believes the result was correct, the Board doesn’t even have authority to discipline the Doctor based solely on the PA’s bad acts.

To wrap it up: (1) no vicarious liability under the “legally liable” statute in the professional-responsibility context; and (2) no authority to discipline Doctor based solely on PA’s acts, when Doctor’s conduct meets or exceeds applicable standard of care.

And that, as they say, is that.