In complaint proceedings before professional regulators, is expert evidence necessary to establish the appropriate standard of care?

The plaintiff first challenges the court's determination that it was proper for the commission to rely on its own expertise in assessing the evidence and in reaching its conclusion that the plaintiff had breached the applicable standard of care. The plaintiff's claim that such a finding is improper is premised on his assertion that none of the members of the commission "is an expert in the field involved in the case, which is the field of pediatric dentistry." We disagree.

Our case law makes clear that a governing medical board is granted broad discretion, pursuant to its statutory authority, in determining the appropriate standard of care in an administrative, licensing procedure. Our Supreme Court has held that "[a]s long as the board hearing and deciding a licensing matter is composed of at least a majority of experts in the field involved in the case, the board may rely on its own expertise in evaluating charges against persons licensed by the board and the requisite standard of care by which to judge such cases."

[275 A.3d 1227]

Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 525, 560 A.2d 403 (1989) ; see also General Statutes § 4-178 (8) (administrative "agency's experience, technical competence, and specialized knowledge may be used in the evaluation of the evidence").

"[M]edical examining boards have expertise in the standards of care in their professions because they are comprised of practicing members of the profession. ... It is to be presumed that the members of the ...

[212 Conn.App. 520]

board, as composed under the statute, are qualified to pass upon questions of professional conduct and competence. ... [E]xpert testimony on standards of care is not required in disciplinary hearings before medical examining boards. ... If medical examining boards can rely on their own expertise on standards of care in disciplinary hearings, then they need not promulgate administrative regulations governing the standard of care. The UAPA provides that any agency may use its experience, technical competence and specialized knowledge in the evaluation of evidence in contested cases." (Citations omitted; internal quotation marks omitted.) Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 188–89, 576 A.2d 1302 (1990).

§ 4-178. Contested cases. Evidence

In contested cases:

[...]

(8) the agency's experience, technical competence, and specialized knowledge may be used in the evaluation of the evidence.

[211 Conn. 524] Levinson claims that the adoption of Public Acts 1977, No. 77-614, § 346, vitiated the Jaffe rationale and requires the presentation of expert testimony before a medical examining board to determine the standard of care and deviations therefrom. He claims that the crux of Jaffe was that the board was composed solely of experts. He also stresses legislative history pointing out the importance of the placement of public members on the regulatory boards. Assuming, arguendo, the validity of these two arguments, they do not in any way furnish guidance with respect to the issue we are considering. In Jaffe, we decided that the board was competent to decide issues of professional conduct without expert testimony. We decided Jaffe on the basis of the situation as it then existed. We decline to read into that case a requirement that such a result was dependent on the board's exclusive professional membership. Every board and commission identified in Public Acts 1977, No. 77-614, § 346, consists of members a majority of whom are experts in the field.

The case of Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), does not support the trial court's decision concerning the lack of continuing validity of Jaffe. In Feinson, the plaintiff property owner appealed from the defendant commission's denial of his application for permission to place fill on part of his property that had been designated an inland wetland. The only evidence before the commission was the technical report and testimony of the plaintiff's engineer. Id., at 423, 429 A.2d 910. The commission made detailed technical findings adverse to the plaintiff. We said that the appeal on the merits turned on whether there was sufficient evidence on the record as a whole to support the decision of the commission. We found that the commission's discussion leading to the denial of the application turned on the concern of a lay member of the commission, who was not an engineer, about the possibility[211 Conn. 525] of septic effluent flowing into surface waters. Id., at 426-27, 429 A.2d 910. The question before us was whether, on a subject as technically sophisticated and complex as pollution control, commissioners who have not been shown to have expertise in this area may rely on their own knowledge, without more, in deciding to deny a license to conduct a regulated activity. We agreed with the trial court that the record did not disclose sufficient reliable evidence to sustain the action taken by the commission. Id., at 427, 429 A.2d 910. In Feinson, however, none of the members of the commission had technical expertise. It was on this basis that we expressly distinguished Jaffe. Id. at 428, 429 A.2d 910. Contrarily, in the present case, a majority of the board were experts, and the board that heard the case consisted entirely of two chiropractors.

We conclude that the rationale of Jaffe survives the addition of a public member to the board. As long as the board hearing and deciding a licensing matter is composed of at least a majority of experts

Page 412

in the field involved in the case, the board may rely on its own expertise in evaluating charges against persons licensed by the board and the requisite standard of care by which to judge such cases. Our view of this matter is supported by Kundrat v. State Dental Council & Examining Board, 67 Pa. Commw. 341, 447 A.2d 355 (1982). In upholding the revocation of the plaintiff's license to practice dentistry, the Kundrat court found expert evidence to be unnecessary before the board. Id., 447 A.2d at 358. The state dental council and examining board consisted of the president of the Pennsylvania state dental society, the secretary of health, the commissioner of professional and occupational affairs and nine persons, at least two of whom represented the public at large, and one of whom was required to be a dental hygienist. Id., 447 A.2d at 358 n. 4. The presence of nonexpert members of the dental council was not an issue in the case. The court, however, implicitly ruled on the expert adequacy of the [211 Conn. 526] council itself when it stated that "[t]he membership of the State Dental Council and Examining Board includes the president of the Pennsylvania State Dental Society, the Commissioner of Professional and Occupational Affairs, and a number of dentists who have been engaged in the practice of dentistry in this Commonwealth for at least ten years. We can logically assume that the dentists sitting on the Board which heard the case are knowledgeable and experienced in the field of dental medicine and the procedures connected therewith. As such, they are permitted to draw on their expertise in ruling on matters which come before them." (Emphasis added.) Id., 447 A.2d at 358. A similar implicit ruling is found in Arlen v. State, 61 Ohio St.2d 168, 173, 399 N.E.2d 1251 (1980), wherein the Supreme Court of Ohio cited Jaffe in following the Jaffe rule. The Ohio court stated: "It is provided in [Ohio Revised Code] 4731.01 that the State Medical Board consist of ten members, eight of whom shall be physicians and surgeons licensed to practice in Ohio, seven of whom must hold the degree of doctor of medicine, one the degree of doctor of podiatric medicine, and one the degree of doctor of osteopathy. The board members are selected by the Governor, with the advice and consent of the Senate. This distinguished medical board is capable of interpreting technical requirements of the medical field and is quite capable of determining when certain conduct falls below a reasonable standard of medical care." Id.

Flanagan next asserts that, as a matter of law, the lack of any expert testimony before the review council that a consensual sexual relationship with a married court reporter violates canons 1 and 2A of the Code of Judicial Conduct prevents the review council from finding a wilful violation of those canons in violation of § 51-51i(a)(2). Flanagan claims that our previous decisions in In re Zoarski, supra, 227 Conn. at 793-94, 632 A.2d 1114, and Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 525, 560 A.2d 403 (1989), require expert testimony in judicial review proceedings if a majority of the decisionmaking body is not composed of "experts," i.e., either judges or lawyers. We disagree.

Zoarski addressed the need for expert testimony in judicial review proceedings in light of our statement [240 Conn. 179] in Levinson that, "[a]s long as the board hearing and deciding a [medical] licensing matter is composed of at least a majority of experts in the field involved in the case, the board may rely on its own expertise in evaluating charges against persons licensed by the board and the requisite standard of care by which to judge such cases." Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. at 525, 560 A.2d 403. In Zoarski, we rejected the judge's claim under Levinson for two reasons: (1) at that time, the review council consisted of a "majority of experts" in that its membership included three judges, three lawyers and only five laypersons; and (2) "[i]n addition, this court's searching review of a finding of judicial misconduct assures the application of proper standards in any particular case." In re Zoarski, supra, 227 Conn. at 794, 632 A.2d 1114.

This case differs from Zoarski in that, since Zoarski, the legislature has added an additional layperson to the review council so that the council is now composed of the same number of laypersons as judges and lawyers. Public Acts 1992, No. 92-160, § 2. Because of the present representational balance on the review council, we are now asked to determine whether the "majority of experts" rule expressed in Levinson applies to this case. We conclude that it does not.

Levinson was drawn from and is part of a body of administrative law jurisprudence that addresses the issue of whether private actors can have their professional or trade competence judged by laypersons who ordinarily would not possess the specific professional or trade expertise necessary to make such a judgment without an expert's opinion. Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. at 525, 560 A.2d 403. Such concerns about professional or trade expertise are simply not present here. The issues before the review council were whether Flanagan, by engaging in a consensual sexual relationship with a married court reporter who [240 Conn. 180] regularly had been assigned to his courtroom, had failed: (1) "to observe high standards of conduct so that the integrity and independence of the judiciary might be preserved"; or (2) "to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary...." In determining whether expert testimony was required in this case to support a finding of an ethical violation by Flanagan, we must consider whether "the determination of the standard of care requires knowledge that is beyond the experience of [the] fact finder," i.e., the review council. Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996); see Jaffe v. Dept. of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949); Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876 (1937); Slimak v. Foster, 106 Conn. 366, 368, 138 A. 153 (1927); Matyas v. Minck, 37 Conn.App. 321, 326, 655 A.2d 1155 (1995); see also State v. McClary, 207 Conn. 233, 245, 541 A.2d 96 (1988) (expert testimony required because nature and cause of victim's injuries "manifestly beyond the ken

Page 877

of the average trier of fact, be it judge or jury").

Unlike Santopietro, this is not a case in which the claims to be decided "are akin to allegations of professional negligence or malpractice, which we have previously defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990)." (Internal quotation marks omitted.) Santopietro v. New Haven, supra, 239 Conn. at 226, 682 A.2d 106. The sole issue before the review council was whether a judge's consensual sexual relationship with a married court reporter who regularly had been assigned to his courtroom either compromises the integrity and independence of the judiciary or lessens[240 Conn. 181] public confidence that such integrity and independence exists. These questions may be answered as competently by those without formal legal training as by those with such training. Although professional opinions may have been relevant to the review council's inquiry in this case and, therefore, admissible, ²¹ such opinions are unnecessary to a determination of whether certain conduct has the effect of reducing public confidence in the integrity of the judiciary, irrespective of whether the review council is composed of a "majority of experts." Indeed, to create a rule of law requiring expert testimony in judicial discipline cases focusing on the public's perception of the judiciary would contravene the legislature's desire to have an equal "lay" voice on the council as articulated in Public Acts 1992, No. 92-160. ²²

The statutes provide that the medical examining board shall consist of five members, that the Connecticut Medical Society shall each year file with the governor the name of one physician practicing in this state whom it recommends as competent to serve on the board, and that the governor shall appoint the person so recommended for a term of five years. General Statutes, Cum.Sup.1935 § 1122c,

[64 A.2d 336]

Rev.1949, § 4365. In providing this method of appointment the legislature undoubtedly intended that the membership of the board should consist of men fitted by training and experience to perform the duties and responsibilities imposed upon it. We would presume-even if we did not know-that the men composing the board were themselves qualified to decide whether certain conduct of a physician or surgeon so derogated from professional standards as unreasonably to jeopardize the interests of the public; and upon that basis they were entitled to act. Where a court has been called upon to determine the reasonable value of the services of an attorney, we have said: ‘Courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described. That knowledge they may apply in considering the testimony of experts upon this subject. They will not be bound by the experts' estimate.’ Gruskay v. Simenauskas, 107 Conn. 380, 387, 140 A. 724, 727; Taft v. Valley Oil Co., 126 Conn. 154, 161, 9 A.2d 822. The same principle applies to the medical examining board. Expert opinions of other physicians offered before it could have been disregarded by it, and from a practical standpoint would in all probability have had little, if any, effect in bringing it to a decision at variance with its own conclusion upon the question whether or not the conduct of a practitioner had been compatible with professional standards or whether or not he was competent. With the facts of that conduct before it, the board was competent to determine such questions without hearing expert opinion evidence. It is true that where, in cases tried in court, an issue presented is such that its solution can only be reached upon the basis of the special knowledge of expert witnesses, such evidence must be produced. Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876. That rule, however, supports rather than contravenes our conclusion in this case because it is based on the fact that such a question goes beyond the field of the ordinary knowledge and experience of judges or jurors; Slimak v. Foster, 106 Conn. 366, 369, 138 A. 153; and this is illustrated by our decisions holding that where an issue can be determined by the application of such knowledge expert testimony is not required. Gannon v. S. S. Kresge Co., 114 Conn. 36, 38, 157 A. 541; Sapiente v. Waltuch, 127 Conn. 224, 227, 15 A.2d 417. So in this case, as we must presume the members of the board to have been competent to determine the issues upon the basis of their own knowledge and experience, the offer of expert testimony was not necessary. We should add, however, that the person under charges has the right to offer expert opinions at the hearing before the board; it is bound to admit such evidence; and it would be obliged to consider it in arriving at its conclusions.

The plaintiff argues that the trial court improperly failed to honor his due process rights and diminished the quantum of evidence required to sustain the suspension of his license because the board members were permitted to act as their own experts in technical matters without specifying their credentials or the authority on which their conclusions were based. ¹² The [228 Conn. 666] plaintiff asserts that the board thereby reached unsubstantiated conclusions regarding the appropriate standard of care, contrary to the expert authority he had presented to the panel. We disagree.

General Statutes (Rev. to 1985) § 4-178 authorizes an agency to evaluate evidence in light of its "experience, technical competence, and specialized knowledge...." ¹³ In a similar case before a medical examining board consisting entirely of physicians, we stated that "the [persons] composing the board were themselves qualified to decide whether certain conduct of a physician or surgeon so derogated from professional standards as unreasonably to jeopardize the interests of the public; and upon that basis they were so entitled to act.... With the facts of [the professional's] conduct before it, the board was competent to determine [whether the

Page 17

conduct had been compatible with professional standards] without hearing expert opinion evidence." Jaffe v. Department of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949); see also New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 149, 627 A.2d 1257 (1993). Nevertheless, a person charged with professional misconduct "has the right to offer expert opinions at the hearing before the board; [the board] is bound to admit such evidence; and [the board] would be obliged to consider it in arriving at its conclusions." Jaffe v. Department of Health, supra, 135 Conn. at 350, 64 A.2d 330.

We cannot say that the board in this case failed to provide adequate notice of reliance on its own expertise. [228 Conn. 667] Here, the proposal for decision set forth the findings of fact upon which the recommended decision was based, the conclusions the board intended to draw from these findings of fact, and the specific statutory provisions deemed to have been violated thereby. The plaintiff was thereby afforded ample opportunity to rebut the proposed findings. See New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 226 Conn. at 150, 627 A.2d 1257.

The trial court correctly noted that the standard of professional care applied by the board in this case was based on the board's interpretation of General Statutes § 20-13c(4) and (5). "Judicial review of the conclusions of law reached administratively is ... limited.... [It] is the well established practice of [a reviewing] court to accord great deference to the construction given [a] statute by the agency charged with its enforcement...." (Citations omitted; internal quotation marks omitted.) Griffin Hospital v. Commission on Hospitals & Health Care, supra, 200 Conn. at 496, 512 A.2d 199. The trial court correctly held that the board had not abused its discretion with regard to the standard of professional care employed in its determination of this case. It was not improper for the board to utilize its own expertise in reaching its conclusions regarding the plaintiff's professional conduct.