North Dakota Reports

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JONES v. STATE BD. OF MEDICAL EXAMINERS, 2005 ND 22
691 N.W.2d 251
Miles J. JONES, M.D., Plaintiff and Appellant v. NORTH DAKOTA STATE BOARD
OF MEDICAL EXAMINERS-INVESTIGATIVE PANEL B, Defendant and Appellee.
No. 20040161.
Supreme Court of North Dakota.
January 19, 2005.

Appeal from the District Court, Burleigh County, South Central
Judicial District, Robert O. Wefald, J.
Page 252

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Page 253

Larry J. Richards, Richards Law Office, Grand Forks, N.D., for
plaintiff and appellant.

John M. Olson, Olson Cichy Bliss, Bismarck, N.D., for defendant
and appellee.

SANDSTROM, Justice.

[ 1] Miles J. Jones, M.D., appealed from a district court
judgment affirming an order of the North Dakota State Board of
Medical Examiners ("Board") revoking his license to practice
medicine in North Dakota. We conclude the Board did not err in
denying Jones's request to appear personally before the Board
when it considered the recommendations of the Administrative Law
Judge ("ALJ") and a reasoning mind reasonably could have found
that Jones's conduct violated N.D.C.C. § 43-17-31(6) and (21).
Because the Board did not explain in the conclusions of law and
order its rationale for not adopting the ALJ's recommended
sanction as required by N.D.C.C. § 28-32-46(8), we reverse the
judgment and direct the district court to remand the case to the
Board for that purpose.

I

[ 2] Jones is a doctor who has been licensed to practice
medicine in North Dakota since 1995. Jones also has been licensed
to practice medicine in numerous other states as well. He is
board certified in clinical and anatomic pathology and forensic
pathology. Jones owns and operates Consultative and Diagnostic
Pathology and provides pathology services throughout the United
States. He serves as medical director of two laboratory services
located in Illinois and Georgia. He has also served as an
emergency physician. Approximately 75 percent of Jones's practice
consists of performing autopsies, 15 percent is devoted to being
a laboratory director, five percent involves medical-legal
consultation, and the remaining five percent involves the
practice of Internet medicine.

[ 3] In findings adopted by the Board, the ALJ explained:

8. Since 1998, Jones has served, without contract, as
medical director of Net Doctor International which
operates two websites, net-dr.com and maleclinic.com.
He is not paid on a per-patient basis. Instead, he
has a rather loose arrangement with the organization
and he receives payment when cash flow permits. At
one point Jones did not receive any payment at all
for a two-year period. More typically, however, he
receives a payment of approximately $5,000 every
other month. Jones testified that the payment process
is handled by a direct deposit into his business
account in a bank in Kansas City.

9. The NET Doctor Group is a private company which
uses a physician-designed world wide web site to
collect patient information and medical history
relevant to prescribing certain prescription drugs.
It uses a questionnaire or information form on the
web site for this purpose. The physician
Page 254
is associated with but not employed by the NET Doctor
Group. The physician reviews the provided medical
history for the NET Doctor Group. Exhibit 17.

10. The way the web site works is, essentially, a
prospective patient seeking one of six FDA-approved,
non-narcotic medications completes a detailed
questionnaire. See R-33. The drugs available from
the NET Doctor web site include Viagra, Xenical,
Propecia, Celebrex, Vaniqa, and Cipro. Company staff
then screens the questionnaire. If it has been
completed appropriately, it is forwarded to Jones or
some other physician for review and possible issuance
of a prescription of one of the medications. Jones
testified that 90% of the prescriptions issued are
for Viagra. Jones then reviews the questionnaire and
determines whether and how much to prescribe to the
patient. Occasionally, a follow-up telephone call to
the patient is required to secure further
information. Jones testified that in the beginning he
used to call the majority of the prospective
patients; however, he has not found a personal call
to be necessary in the vast majority of cases. He
said the internet forms are complete and usually
provided all of the essential information necessary
to make an informed medical decision. Further, Jones
testified that phone calls, when unnecessary, delay
responsiveness to patient needs. Therefore, nowadays,
such calls are much more infrequent, and more
requests are quickly approved.

11. Jones testified that he has never been to the NET
Doctor Group offices, [and] does not know the names
or the backgrounds or qualifications of any of its
staff or other physicians. In addition, he testified
that he does not have any knowledge of the pharmacies
that dispense medications that he approves.

[ 4] An undercover agent with the North Dakota Bureau of
Criminal Investigation, using a fictitious name, completed a
questionnaire for Net Doctor International and placed an Internet
order from Bismarck for the prescription drug Cipro. The
prescription the agent received was filled by Community Drug of
Pittsburgh, Pennsylvania, and was prescribed by Jones. The
Board's Investigative Panel B also received a printout through a
Pennsylvania investigative agency showing Jones had prescribed
Xenical through Community Drug to a person in Bismarck.

[ 5] Panel B filed a complaint requesting revocation of
Jones's license to practice medicine in North Dakota. c in violation of N.D.C.C. §
43-17-31(6), and that he engaged in a continued pattern of
inappropriate care in violation of N.D.C.C. § 43-17-31(21).

[ 6] The ALJ held a hearing on the matter in May 2002, but
Jones was not present and was not represented by an attorney. The
ALJ recommended that Jones's license be revoked, and the Board
adopted the recommendation. Jones appealed, the district court
granted Jones's request for leave to offer evidence under
N.D.C.C. § 28-32-45, and the matter was
Page 255
remanded to the Board to give Jones an opportunity to offer
evidence.

[ 7] Another hearing was held before the same ALJ in May 2003.
Jones was present at the hearing, was represented by an attorney,
and testified on his own behalf. His attorney recalled witnesses
from the first hearing for cross-examination. Jones also called
other witnesses to testify, including two expert witnesses who
had not testified at the first hearing. The ALJ again found that
Jones had violated N.D.C.C. § 43-17-31(6) and (21), but instead
of recommending revocation of Jones's license as an appropriate
sanction, the ALJ recommended that Jones be fined, censured, and
informed that "if Jones is found to be in further violation of
N.D.C.C. § 43-17-31(6) and (21), with regard to internet
prescribing in North Dakota, after the date of [the Board's]
order, . . . his license to practice medicine in North Dakota
will be revoked."

[ 8] Before the ALJ's recommendations were considered by the
Board, Jones requested that he be allowed to appear personally
before the full Board. The Board was scheduled to meet
telephonically to consider the recommendations, and because Panel
B had brought the complaint against Jones, only members of Panel
A would be allowed to vote on the recommendations. Jones declined
an invitation to address the Board at the telephonic conference.
The Board adopted the ALJ's recommended findings of fact and
conclusions of law, but rejected the recommended sanction,
stating:

IT IS FURTHER ORDERED that the Board's Order of July
26, 2002 revoking Dr. Jones' license to practice
medicine in North Dakota is hereby affirmed. License
No. 7255 previously issued by this [B]oard to Miles
J. Jones, M.D. is revoked. Further, Miles J. Jones
shall pay to the Board the reasonable and actual
costs of the investigation and prosecution of this
case, including reasonable attorney's fees.

The district court affirmed the Board's decision.

[ 9] The district court had jurisdiction under N.D. Const.
art. VI, § 8, and N.D.C.C. § 28-32-42. Jones's appeal to this
Court is timely under N.D.C.C. § 28-32-49 and N.D.R.App.P. 4(a).
This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and
6, and N.D.C.C. § 28-32-49.

II

[ 10] Decisions of the Board are subject to limited judicial
review. Huff v. North Dakota State Bd. of Med. Exam'rs,
2004 ND 225, 8, 690 N.W.2d 221. Under N.D.C.C. §§ 28-32-46 and
28-32-49, the district court, and this Court on further appeal,
must affirm the Board's decision unless one of the following is
present:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional
rights of the appellant.

3. The provisions of this chapter have not been
complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not
afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not
supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are
not supported by its findings of fact.

7. The findings of fact made by the agency do not
sufficiently address the evidence presented to the
agency by the appellant.

8. The conclusions of law and order of the agency do
not sufficiently explain the agency's rationale for
not
Page 256
adopting any contrary recommendations by a hearing
officer or an administrative law judge.

[ 11] As set forth in this Court's seminal case of Power
Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979):

In construing the "preponderance of the evidence"
standard to permit us to apply the
weight-of-the-evidence test to the factual findings
of an administrative agency, we do not make
independent findings of fact or substitute our
judgment for that of the agency. We determine only
whether a reasoning mind reasonably could have
determined that the factual conclusions reached were
proved by the weight of the evidence from the entire
record.

The Board's decisions on questions of law are fully reviewable.
Huff, 2004 ND 225, 8, 690 N.W.2d 221.

A

[ 12] Although Jones was present at the hearing before the ALJ
and presented evidence on his own behalf, Jones argues the Board
erred in failing to allow him to appear personally before the
Board when it reviewed and decided whether to accept or reject
the ALJ's recommendations.

[ 13] Under N.D.C.C. § 28-32-39(3), the Board "may allow
petitions for review of a recommended order and may allow oral
argument pending issuance of a final order." (Emphasis added).
When used in a statute, the word "may" ordinarily creates a
directory, non-mandatory duty. North Dakota Comm'n on Med.
Competency v. Racek, 527 N.W.2d 262, 268 (N.D. 1995). Therefore,
the Board was not required by the statute to allow oral argument
pending issuance of the final order, and the Board's refusal to
allow Jones to appear personally cannot be considered in
violation of any statutory right.

[ 14] Jones argues he was denied due process by not being
allowed a personal appearance before the Board when it considered
the ALJ's recommendations. In determining whether a due process
violation has occurred, we engage in a twofold inquiry: whether
there is a constitutionally protected interest at stake; and, if
so, whether minimum due process procedural requirements have been
met. Livingood v. Meece, 477 N.W.2d 183, 193 (N.D. 1991). While
a license to practice medicine is a constitutionally protected
property right, Bland v. Comm'n on Med. Competency,
557 N.W.2d 379, 381 (N.D. 1996), we believe Jones's procedural due process
rights were not violated.

[ 15] There is no statutory prohibition against telephonic
deliberations by the Board. See, e.g., Clausing v. State,
90 Wash.App. 863, 955 P.2d 394, 400 n. 6 (1998) (Board of
Osteopathic Medicine and Surgery acted within its statutory
authority in issuing summary restriction order after convening by
telephone conference call, and noting "video conferencing,
internet conferencing, and telephone conference calls are all
means to conduct transactions in an economical and efficient
manner"). Although Jones had been offered the opportunity to
participate in the telephonic conference and address the Board,
he elected not to participate. Compare St. Claire v. St.
Claire, 2004 ND 39, 6, 675 N.W.2d 175 (a person's right to
appear at a civil proceeding is satisfied by allowing appearance
via telephone). Jones's evidentiary hearings before the ALJ were
completed. Jones appeared at the last hearing, was represented by
counsel, and presented evidence on his own behalf. The Board was
deliberating the ALJ's recommended findings and conclusions, not
holding another evidentiary hearing. Because Jones had no
statutory right to appear
Page 257
personally before the Board, and the Board's decision was based
on the record compiled during the evidentiary hearings held
before the ALJ, Jones had no due process right to a face-to-face
confrontation with the Board. Compare Mahaney v. State,
610 A.2d 738, 742 (Me. 1992) (parole board's decision to deny parole
without allowing inmate to personally appear did not deny inmate
due process, because inmate had no statutory right to appear and
parole decision must be made largely on the basis of the inmate's
files). We conclude the procedure used in this case satisfied due
process.

B

[ 16] Jones argues the Board's conclusions that he violated
N.D.C.C. § 43-17-31(6) and (21) are not supported by a
preponderance of the evidence.

[ 17] Section 43-17-31(6) and (21), N.D.C.C., provides:

Disciplinary action may be imposed against a
physician upon any of the following grounds:

. . . .

6. The performance of any dishonorable, unethical, or
unprofessional conduct likely to deceive, defraud, or
harm the public.

. . . .

21. A continued pattern of inappropriate care as a
physician, including unnecessary surgery.

[ 18] Several physicians testified as experts for the Board.
They testified that Internet prescribing based solely on a
questionnaire is inappropriate and places the recipients of the
prescriptions at risk. They expressed concern about the dangers
of prescribing drugs to people the physician does not know, the
potential for abuse because of Internet prescribing practices,
and the lack of adequate safeguards in place to prevent abuse.
Dr. George Porter, former Chairman of the Oregon Board of Medical
Examiners who also was a member of the Special Committee on
Professional Conduct in Ethics for the Federation of State
Medical Boards and helped to write recommendations for the
Internet practice of medicine, testified the Internet does not
afford the opportunity for necessary physician/patient
interaction. He testified that to prescribe medications, there
should be a traditional physician/patient relationship. He
testified this requires a "documented patient evaluation" or a
"face-to-face evaluation in which the . . . patient actually
presented their symptoms or their complaints," "dialogue . . .
between the physician and the patient regarding the risk benefits
of the treatment proposed," a "follow up of effectiveness of the
treatment," and a "contemporaneous . . . medical record." The
Special Committee recommended that before a prescription should
be issued, there exist a documented evaluation of the patient,
including a history and physical. It also recommended the owner
of the Internet prescribing site be disclosed with a 24-hour
telephone number so a patient can talk directly to a physician, a
release be signed by the patient for medical records, and the
physician's license and qualifications be adequately disclosed.
This information is not available on websites affiliated with
Jones.

[ 19] Jones presented expert witnesses who testified that his
Internet prescribing practice does not breach the acceptable
standard of care and that a physician/patient relationship over
the Internet can achieve the same goals acquired with personal
physician/patient contact. One witness admitted that people could
obtain drugs over the Internet that were inappropriate for them
and that Internet prescribing based solely on a questionnaire
does not meet the standard
Page 258
of care established by most, if not all, state medical boards.

[ 20] Jones admitted to approving 15,000 prescriptions during
2002. On the basis of Jones's testimony that he spends five
percent of his practice on Internet prescribing, the ALJ and the
Board calculated that if Jones worked 80 hours per week every
week during 2002, he would have spent 208 hours approving 15,000
prescriptions, resulting in a total of 72 prescriptions per hour.
The ALJ and the Board noted "[i]t is obvious that not much
thought and attention can be given to each patient if one is
reviewing 72 questionnaires per hour, especially reviewing the
lengthy questionnaires in evidence in this hearing."

[ 21] The ALJ and the Board concluded:

3. Jones has repeatedly written prescriptions for
patients over the internet, including North Dakota
patients, without first examining the patient or
obtaining all appropriate information from the
patient. He approves the prescriptions of numerous
patients each hour he works on internet prescribing.
Although it may be possible to appropriately
prescribe over the internet in North Dakota, it is
clear that Jones' current actions in doing so place
patients in North Dakota and elsewhere at risk. It is
obvious that Jones's patients are simply lost in the
volume and maze of the computer driven process.
Again, although it may be possible to write
prescriptions for patients over the internet if
adequate safeguards are in place, adequate safeguards
were not in place for Jones to write prescriptions in
the cases that are the subject of this Complaint.
Accordingly, the evidence shows, by the greater
weight of the evidence, that while licensed as a
North Dakota physician, Jones has engaged in a
continued pattern of inappropriate care for patients
in North Dakota and elsewhere within the meaning of
N.D.C.C. § 43-17-31(21); and Jones has engaged in the
performance of unprofessional conduct that is likely
to deceive, defraud, or harm the public within the
meaning of N.D.C.C. § 43-17-31(6). At the very least,
Jones is providing inappropriate care for patients by
prescribing drugs for them over the internet without
adequate safeguards, and, at times, without adequate
information. Also, prescribing drugs for patients
over the internet without adequate information or
adequate safeguards is unprofessional conduct that is
likely to deceive, defraud, or harm the public. It is
not necessary that actual harm, fraud, or deceit
caused by Jones be shown. It is sufficient that harm,
fraud, or deceit is likely to be caused by him
because of his internet activities. In this case, the
evidence is clear that harm, fraud, or deceit is
likely to be caused.

[ 22] Having reviewed the record, we conclude a reasoning mind
reasonably could have concluded that Jones's conduct violated
N.D.C.C. § 43-17-31(6) and (21).

C

[ 23] Jones argues the Board, in revoking his license, did not
adequately explain its reasons for rejecting the ALJ's
recommended sanction of a censure, fine, and warning.

[ 24] Under section 28-32-46(8), N.D.C.C., we reverse the
Board's decision if the "conclusions of law and order of the
agency do not sufficiently explain the agency's rationale for not
adopting any contrary recommendations by a hearing officer or an
administrative law judge." The Board adopted the ALJ's findings
and conclusions, but ordered revocation of Jones's license
without any explanation in
Page 259
the conclusions of law and order for rejecting the ALJ's proposed
sanction. Under these circumstances, a reversal and remand is
appropriate to allow the Board to explain its reasons for
rejecting the ALJ's recommended sanction. See Blanchard v. North
Dakota Workers Comp. Bureau, 1997 ND 118, 1, 29,
565 N.W.2d 485.

III

[ 25] We reverse the judgment and instruct the district court
to remand to the Board for an explanation of why it rejected the
ALJ's recommended sanction.

[ 26] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY
MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

VANDE WALLE, Chief Justice, concurring specially.

[ 27] I concur in the opinion authored by Justice Sandstrom
for the Court. I write separately to note that the only portion
of the recommendations of the Administrative Law Judge not
adopted by the Board was the recommendation for discipline. It
might be argued that the discipline, as opposed to findings, are
peculiarly the function of the Board. But, N.D.C.C. §
28-32-46(8), made applicable to our review by N.D.C.C. §
28-32-49, unambiguously requires that we affirm the Board's
decision unless the conclusions of law and order of the Board do
not sufficiently explain the Board's rationale for not adopting
"any contrary recommendations by a hearing officer or an
administrative law judge." Under N.D.C.C. § 28-32-31(4), made
applicable to duties of an ALJ by N.D.C.C. § 54-57-04, the ALJ is
to make "recommended findings of fact and conclusions of law and
issue a recommended order, when appropriate." Again the statutory
language is unambiguous. Neither party has argued it was
inappropriate for the ALJ to recommend an order including
discipline. Rather on January 15, 2003, the Board requested an
ALJ to "conduct the hearing and issue recommended findings of
fact, conclusions of law, and order."

[ 28] The ALJ did issue "Recommended Findings of Fact,
Conclusions of Law, and Order" and explained his reasons for the
recommended sanctions in his Recommended Order:

What the appropriate discipline should be ordered is
another matter considering the arguments made by
Jones' counsel and the fact that North Dakota does
not have specific rules on internet prescribing. Of
most significance, in the ALJ's mind, is the fact
that there was no actual harm shown and that Jones'
internet practice is a small portion of his total
practice. The ALJ does not believe that revocation is
appropriate at this time. Instead, the ALJ recommends
that the Board impose a fine not to exceed five
thousand dollars ($5,000) on Jones for the violations
of N.D.C.C. § 43-17-31 proven. If the Board orders
Jones to pay a fine, the Board shall indicate by
separate letter the amount of the fine it will
impose, as well as the manner and terms of payment.
The ALJ further recommends that the Board order Jones
to pay a sum, to be determined by the Board, not to
exceed the reasonable and actual costs, including
reasonable attorney's fees, incurred by the Board and
its investigative panel in the investigation and
prosecution of this case under N.D.C.C. § 43-17-31.1.
If the Board orders Jones to pay reasonable and
actual costs, it shall indicate by separate letter
attached to its final order an amount and the manner
and terms for payment of those costs. Finally, the
ALJ further recommends that the Board issue a letter
of censure to Jones and that in its letter the Board
state,
Page 260
among other things, that if Jones is found to be in
further violation of N.D.C.C. § 43-17-31(6) and (21),
with regard to internet prescribing in North Dakota,
after the date of its order, that his license to
practice medicine in North Dakota will be revoked.

[ 29] The Board adopted the recommended Findings of Fact and
the recommended Conclusions of Law but did not adopt the
"Recommended Order." Rather the Board issued an order over the
signature of its Chairman which read, without further
explanation:

The evidence of record has been considered and
appraised. IT IS ORDERED that the recommended
findings of fact and conclusions of law of the
administrative law judge are adopted as the Board's
findings of fact and conclusions of law in this
matter; IT IS FURTHER ORDERED that the Board's Order
of July 26, 2002 revoking Dr. Jones' license to
practice medicine in North Dakota is hereby affirmed.
License No. 7255 previously issued by this board to
Miles J. Jones, M.D. is revoked. Further, Miles J.
Jones shall pay to the Board the reasonable and
actual costs of the investigation and prosecution of
this case, including reasonable attorney's fees.

It is apparent the Board has not explained its rationale for not
adopting the "contrary recommendations by . . . an administrative
law judge." The ALJ recommended revocation of the license to
practice medicine after the first hearing at which Jones did not
appear in person or by counsel. After the remand and second
hearing, the ALJ gave specific and cogent reasons for
recommending discipline other than revocation of Jones's license.
Those reasons beg for an explanation by the Board if it chose not
to follow the recommendation. Under N.D.C.C. § 28-32-46(8) we
cannot affirm without an explanation of the Board's rationale in
not adopting the Recommended Order.

[ 30] GERALD W. VANDE WALLE, C.J.



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