2025 N.H. 13, Appeal of Doe (Bd. of Med.)

and orally), for the respondent. general (Laura E. B. Lombardi, s enior a ssistant a ttorney g eneral, on the brief John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

brief and orally), for the petitioner. Rath, Young, and Pignatelli, P.C., of Concord (Adam Pignatelli on the

Citation: Appeal of Doe (Bd. of Med.), 202 5 N.H. 1 3 Case No. 2023 - 0637 New Hampshire Board of Medicine

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

investigation yields. What is apparent now is the matte r warrants and reserves further judgment based upon all the evidence that Additionally, the Board recognizes that the investigation is ongoing To be clear, the Board is nonetheless troubled by the allegations.

The Board also stated: medicine pending an adjudication posed an imminent danger to life or health. his burden of proving by a preponderance of the evidence that Doe’s practicing Board issued a narrative order finding that hearing counsel had failed to meet vacating the emergency suspension of Doe’s license. On July 19, p. 2 2022, the exhibits, and called a witness. The next day, the Board issued an order adjudication.” Doe attended the hearing with counsel, testified, presented “temporary suspension should remain in effect, pending a full disciplinary 2022. The scope of the adversarial hearing was limited to whether the The Board granted the request, and the hearing was rescheduled for June 1, [¶4] Doe filed a request for a continuance of no longer than one month.

page for the Board of Medicine. hearing notice are posted on a website maintained by the OPLC that includes a suspension hearing for May 11, p. 2 2022. Both the suspension order and the the Board issued a notice of emergency hearing scheduling an adjudicative pending [a] hearing for a period of no more than 120 days”). On the same day, imminent danger to life or health, the board may order suspension of a license effective October 3, 2023) (stating, in relevant part, that “[i]n cases involving his license. See RSA 329:18 - b (2017) (repealed by Laws 2023, 212:20, VI, to prove that Doe posed an imminent danger to life or health, and suspending suspension pursuant to RSA 329:18 - b, finding that there were sufficient facts denied. On May 6, 2022, the Board issued a narrative order of emergency monthly meeting on May 4, 2022. Doe’s request to attend the meeting was that the Board would consider the allegations at its regularly scheduled allegations and other documentation. Thereafter, Doe was informally notified the allegations, and, through his attorney, Doe submitted responses to the [¶3] During its investigation of the reports, the OPLC notified Doe about

sexually inappropriate comments during office visits. female patient had stated that Doe had touched her inappropriately and made made c omments to them that were sexual in nature, and after a non - juvenile complaints by three staff members that on three separate occasions Doe had the Board that it had terminated Doe’s employment following the receipt of OPLC received a report of non - compliance from Doe’s former employer notifying inappropriate questions about sex during a medical visit. On April 8, p. 2 2022, the complaint with a police department alleging that Doe had asked the juvenile by a detective that the mother of one of Doe’s juvenile patients had filed a p. 3 3

the OPLC include th e Board of Medicine. See RSA p. 3 310:2, II(x). The law promote efficiency, see RSA 310:1, and the law provides that the boards within 310 (Supp. 2024) (effective July 15, 2023). The recodification is designed to governing the Office of Professional Licensure and Certification. See RSA ch. Prior to the repeal of that provision, however, the legislature recodified the law one day before the Board issued its order denying Doe’s motion to reconsider. 3, 2023). This provision of the chapter was repealed effective October 3, 2023, RSA 329:17, VIII (2017) (repealed by Laws 2023, 212:20, VI, effec tive October under [RSA 329:17] may be appealed to th e supreme court under RSA 541.” that “[d]isciplinary or non - disciplinary remedial action taken by the board the time this matter was pending before the Board, RSA chapter 329 provided Petition of Hoyt, 143 N.H. 533, 534 (1999) (quotation omitted). During most of an appeal under the provisions of chapter 541 is not authorized by law.” [¶7] “Unless some reference is made to chapter 541 in any given statute,

RSA chapter 541. Court Rule 10. The Board argues that Doe’s claims are not appealable under matter. Doe filed his appeal by petition pursuant to RSA 541:6 and Supreme [¶6] Before turning to the merits, we determine our jurisdiction over the

motion to reconsider. On October 4, 202 p. 3 3, the Board issued a lengthy narrative order denying his publishing these types of orders as to physicians who no longer hold licenses.” “unnecessary invasions,” and that there is “limited public interest[] in reconsider, asserting that his reputational interest should be protected from the Board issued an order denying the requested relief. Doe filed a motion to proceeding from its website and his physician profile.” On September 5, 2023, proceedings should result in the Board removing all references to the proceedings, and that “the lack of due process afforded in the ex parte that his reputation had been adversely affected by the Board’s ex parte emergency suspension order from the OPLC website. He asserted in his motion April 21, 2023, Doe submitted a renewed motion to remove all references to the thereafter, the voluntary surrender of license was posted on the website. On 1, 2023. A little over one month later, Doe voluntarily surrendered his li cense; “resulted in extreme social isolation.” The Board denied his motion on March online had negatively affected him professionally and personally and had June 2 order. He alleged in his motion that the availability of these orders suspension from the website, including the May 6 order and notice, and the hearing, Doe filed a motion to remove all references to the emergency [¶5] On January 30, 2023, prior to a full disciplinary adjudicatory

Both the June 2 and July 19 orders are posted on the OPLC website.

completion of investigation by the OPLC Division of Enforcement. scheduling a full disciplinary adjudicatory hearing to occur after p. 4 4

observance of the law or has unsustainably exercised its discretion or acted the agency “has acted illegally with respect to jurisdiction, authority or agency’s decision on a petition for a writ of certiorari entails examining whether State Police, 17 p. 4 4 N.H. 176, 180 (2021). Our review of an administrative matter of right, but rather at the court’s discretion.” Petition of N.H. Div. of [¶9] “Certiorari is an extraordinary remedy that is not granted as a

for writ of certiorari.”). petitioners have mistaken their remedy, we will treat their appeal as a petition of certiorari. See Appeal of Dumont, 135 N.H. 23, 25 (1991) (“Although the have RSA chapter 5 p. 4 41 jurisdiction, and treat this appeal as a petition for a writ the public. See RSA 329:1 - aa (2017). Accordingly, we conclude that we do not individual boards, see RSA 310:1, and serves the Board’s obligation to protect “administrative, clerical, business processing and record keeping function” of orders is consistent with the OPLC’s statutory responsibility over the disciplinary history of a particular licensee.” The OPLC’s posting of these link to an on line license verification page that the public can use to search the includes a page listing all disciplinary actions taken by the Board, as well as a that includes a page for the Board of Medicine,” and that “[t]he Board’s website Board asserts, and Doe does not dispute, that “the OPLC maintains a website continue to maintain the orders on the website “is a part of the discipline.” The posting of the orders on the website “is attendant to discipline” and that to under RSA chapter 541 in these circumstances. We disagree with Doe that the 329:18 - b. Neither RSA 329:17, VIII nor RSA 310:14 authorizes an appeal documents relating to the order suspending his license pursuant to RSA he appeals the order denying his request to remove from the Board’s website disciplinary action or non - disciplinary remedial action by the Board. Rather, allegations remained under investigation; therefore, he does not appeal [¶8] Doe agreed to voluntarily surrender his license while the misconduct

RSA 310:1 p. 4 4 (Supp. 2024).

by the board during an appeal. 67 p. 4 4:34 or other applicable statutes. No sanction shall be stayed supreme court pursuant to RSA 541, except as specified in RSA III. Appeals from a decision on rehearing shall be by appeal to the

of the original final decision. right to petition in writing for a rehearing within 30 days of receipt II. Any person who has been disciplined by a board shall have the

202 p. 4 4). It also includes a provision stating, in relevant part: adjudicative proceeding in certain circumstances. See RSA 310:12, IV (Supp. to order immediate suspension of a license or certification pending an includes a provision, similar to the repealed RSA 329:18 - b, authorizing a board p. 5 5

Case, 1 p. 5 52 N.H. 163, 165 (2005). wrongful suspension of his license and damage to his reputation. See Reiner’s to whether the procedures provided Doe with appropriate safeguards against to practice medicine, and in his reputation as related to his p rofession, we turn dispute that a physician has a constitutionally protected interest in his license Rochester, 168 N.H. 640, 647 (2016) (quotation omitted). Because there is no interest exists, we determine what process is due.” Gantert v. City of that entitles him or her to due process protection; and second, if such an due process cla ims: first, we determine whether the individual has an interest [¶13] “We engage in a two - part analysis [when] addressing procedural

fair play.” Id. (quotation omitted). government conduct conform to the community’s sense of justice, decency and process claim is the notion of fundamental fairness,” which “requires that of law. Veale, 1 p. 5 58 N.H. at 636. “The ultimate standard for judging a due CONST. pt. I, art. 15. We have held that “law of the land” means due process or deprived of his life, liberty, or estate, but by . . . the law of the land.” N.H. “[n]o subject shall be . . . deprived of his property, immunities or privileges . . . [¶12] Part I, Article 15 of the New Hampshire Constitution provides that

omitted). review it de novo.” State v. Veale, 1 p. 5 58 N.H. 632, 636 (2009) (quotation 33 (1983). “Because this issue poses a question of constitutional law, we rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231 - [¶11] We first address Doe’s claims under the State Constitution, and

due process rights. failed to demonstrate that the Board violated his State and Federal procedural constitutional claim, and conclude, for the reasons that follow, that he has process rights. We assume without deciding that Doe has not waived his he has failed to demonstrate that the Board violated his procedural due did not waive his challenge to the Board’s emergency suspension procedures, procedures when he voluntarily surrendered his license, and that, even if Doe process claim he might have had relative to the emergency suspens ion documents from its website. The Board contends that Doe waived any due due process violation by removing the emergency suspension order and related temporarily suspended his license ex parte, and then refused to “remedy” the emergency, and that the Board therefore violated his due process rights when it disciplinary matter demonstrates that the Board did not treat the matter as an [¶10] Doe argues that the timeline of the Board’s processing of the

injustice.” Id. writs sparingly and only where to do otherwise would result in substantial Children, 1 p. 5 55 N.H. 528, 532 (2007). “We exercise our power to grant such arbitrarily, unreasonably or capriciously.” Petition of Chase Home for p. 6 6

is necessary in some instances to protect the public and preserve the integrity e.g., Reiner’s Case, 152 N.H. at 1 p. 6 66 (“prompt suspension of indicted attorneys noted, significant, and will often justify the use of summary procedures. See, protecting the public from an imminent danger to life or health is, as we have immediately suspend his license. Furthermore, the State’s interest in Board that he knew would be considered i n determining whether to as here, the licensee ha d the opportunity to, and did, submit information to the and state his or her defense directly to the Board, that risk is tempered when, determination is made without the licensee having the opportunity to appear Med 409.01(a). Although a risk of erroneous deprivation may exist when a ten days to determine the propriety of the suspension. See N.H. Admin. R., rules, Doe was entitled to the commencement of an adjudicatory hearing within the suspension was provisional and, pursuant to the Board’s administ rative practice medicine deprived Doe of a constitutionally protected property interest, June 1, 2022 hearing. While the Board’s suspension of Doe’s license to Doe’s request. Doe was provided with a full panoply of procedural rights at the hearing for May 11, 2022, which was later rescheduled to June 1, 2022, at 2022, pursuant to RSA 329:18 - b, and scheduled an adjudicative suspension [¶16] Here, the Board temporarily suspended Doe’s license on May 6,

procedural due process inquiry.” González - Droz, p. 6 660 F.3d at 13. at 13. “Whether the deprivation was, in fact, justified is not an element of the requirements.” Gantert, 168 N.H. at 647 - 48; see also Gonzál ez - Droz, 660 F.3d the fiscal and administrative burdens resulting from additional procedural substitute procedural safeguards; and (3) the government’s interest, including through the procedure used an d the probable value of any additional or interest that is affected; (2) the risk of erroneous deprivation of that interest required and what process is due, “we balance three factors: (1) the private [¶15] Accordingly, to determine both whether a pre - deprivation hearing is

The City of Albuquerque, 448 F.3d 1214, 1220 (10th Cir. 200 p. 6 6). requires only a postdeprivation opportunity to establish the error.” Camuglia v. quickly. Quick action may turn out to be wrongful action, but due process safety, the Supreme Court has long recognized that the government must act Gilbert v. Homar, 520 U.S. 924, 930 (199 p. 7 7). “In matters of public health and postdeprivation process satisfies the requirements of the Due Process Clause.” or where it would be impractical to provide predeprivation process, Court has recognized “on many occasions, that where a State must act quickly, Morris s ey v. Brewer, 408 U.S. 471, 481 (1972)). The Unit ed States Supreme González - Droz v. González - Colón, 660 F.3d 1, 13 (1st Cir. 2011) (quoting and calls for such procedural protections as the particular situation demands.’” the adequacy of state procedures in a given case; rather ‘due process is flexible Trust Co., 120 N.H. 753, 758 (1980). “No rigid taxonomy exists for evaluating at a meaningful time and in a meaningful manner.” Appeal of Portsmouth [¶14] “The fundamental requisite of due process is the right to be heard 7

the Board to proceed ex parte, once it considered the allegations. persuaded that the facts of this case demonstrate that there was no need for kind of showing” about why the Board must proceed ex parte, we are not that in cases in which public safety may be endangered there must be “some to public health or safety existed. Even if we were to accept Doe’s proposition materials at its regularly scheduled meeting, it found that an imminent danger prior to scheduling another evidentiary hearing when, following review of the expedite its review of the matter, it was precluded by due process from acting did not schedule a special meeting to consider these allegations or otherwise Regarding the second point, we do not agree that, because the Board or its staff factor into the procedural due process inquiry. González - D roz, 660 F.3d at 13. F.3d at 1221. That the State’s action is later found to be unjustified does not regarding the propriety of the State’s action can be delayed. See Camuglia, 448 Clause,” Gilbert, 520 U.S. at 930, is an understanding that a determination quickly, “postdeprivation process satisfies the requirements of the Due Process United States Supreme Court’s statement that when the State must act [¶18] Regarding the first point, we are not persuaded. Implicit in the

license. meeting and then waited two days after its meeting to temporari ly suspend his “nearly a month” to consider the matter at its regularly scheduled monthly emergency because it did not act on the allegations immediately, and waited health. Second, he asserts that the Board did not treat the matter as an preponderance of the evidence that there was an imminent danger to life or found that hearing counsel had not met his burden to show by a later, “at the first opportunity for an adversarial hearing” when the Board reasons. First, he notes that the ex parte order was overturned f our weeks this case demonstrate that there was no need to proceed ex parte for two Board must proceed ex parte.” We understand Doe to argue that the facts of parte, but argues that there “should be some kind of showing to show why the that there might be some circumstances in which the Board must proceed ex taking immediate action where public safety may be threatened. He concedes [¶1 p. 7 7] Doe does not dispute the legality or constitutionality of the Board’s

deprivation review.” González - Droz, 660 F.3d at 14. safe guards “is significantly diminished by the ready availability of prompt post the possible risk of erroneous deprivation and the possible benefit of additional safety and the integrity of professional licensure, the force of the[] factors” of First Circuit Court of Appeals has noted, “in cases involving public health and and a hearing to review the license suspension was held a month later). As the immediately suspended upon his refusal to submit to a chemical test for DWI 6 p. 7 7 p. 8 8 - 79 (1997) (plaintiff was not denied due process where driver’s license was of the legal profession”); Bragg v. N.H. Div. of Motor Vehicles, 141 N.H. 677, 8

Doe could have elected to allow the matter to proceed to a full disciplinary website because they make public alllegations that he asserts are unfounded. so argues, we disagree with Doe that the orders should be removed from the public to form their own opinions regarding the matter. To the extent that he v acating the emergency suspension are also posted, allowing members of the orders outweighs that interest, particularly where, as here, subsequent orders Furthermore, the public’s interest in having access to the Board’s disciplinary we have concluded, Doe was afforded sufficient due process in this case. deprivation of which is deserving of due process, see Veale, 15 p. 8 8 N.H. at 639, as interest and right to the protection of his good name are liberty in terests, the and isolation.” While we have recognized that an individual’s reputational careers and associated income, job instability, and ongoing emotional distress continue to “suffer damage to his reputatio n as well as loss of alternative Rather, he argues that unless the orders are removed from the website, he will records subject to disclosure under the Right - to - Know Law and RSA 329:8. [¶22] Doe does not dispute that the documents at issue are public

RSA 329:1 - aa (2017). Posting the orders also serves the Board’s obligation to protect the public. See N.H. CONST. pt. I, art. p. 8 8; RSA 91 - A:4 (Supp. 2024); RSA 329:8 (Supp. 2024). public records and to remain accountable to the public for its actions. See con stitutional and statutory obligation to ensure the greatest possible access to posting of these orders, as the Board points out, is consistent with the Board’s discretion regarding whether to post a particular order to the website. The orders will be posted, the Board represents that it and OPLC exercise very little exercised some discretion in the adoption of the policy dictating w hat types of suspension order is also posted. Therefore, while the Board and the OPLC the order is later vacated, as occurred in this case, the order vacating the reported to the national databank, inclu ding emergency suspension orders. If the website and that all of the orders posted are orders that must also be and the OPLC have determined that all disciplinary orders should be posted to [¶21] The Board represents, and Doe does not dispute, that the Board

the emergency suspension order and related documents from its website. Home for Children, 155 N.H. at 532, when it denied Doe’s request to remove discretion or acted arbitrarily, unreasonably or capriciously,” Petition of Chase [¶20] We now consider whether the Board “unsustainably exercised its

Veale, 15 p. 8 8 N.H. at 645. circumstances, we reach the same result under the Federal Constit ution. See Constitution is at least as protective as the Federal Constitution in these prove that he posed an imminent danger to life or health. Because the State suspended his license after finding, ex parte, that there were sufficient facts to under Part I, Article 15 of the New Hampshire Constitution when it temporarily [¶1 p. 9 9] We conclude that the Board did not violate Doe’s due process rights 9

M AC DONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

h earing from its website and from Doe’s physician profile. May 4, 2022 and June 2, 2022 orders and the May 6, 2022 n otice of e mergency capriciously, we affirm the Board’s decision not to remove all references to the not violated, and that the Board did not act arbitrarily, unreasonably or [¶23] Because we conclude that Doe’s procedural due process rights were

532. consistent with its policy. Petition of Chase Home for Children, 155 N.H. at capriciously” when it denied Doe’s request to remove orders it had posted “unsustainably exercised its discretion or acted arbitrarily, unreasonably or disciplinary matter. Under these circumstances, we cannot say that the Board instead opted to voluntarily surrender his license in resolution of the hearing to determine whether the allegations were, in fact, unfounded, but he