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TIMOTHY MCCARL v. COMMONWEALTH PENNSYLVANIA (01/12/79)

decided: January 12, 1979.

TIMOTHY MCCARL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF NURSE EXAMINERS, RESPONDENT



Appeal from the Order of the State Board of Nurse Examiners in case of In the Matter of the Suspension or Revocation of License No. RN171,266 to Practice as a Registered Nurse, issued August 7, 1969 to Timothy McCarl, dated May 27, 1977.

COUNSEL

John R. Wingerter, with him Carney, Good, Brabender & Walsh, for petitioner.

James P. Deeley, with him Louis B. Rubin, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge DiSalle. Dissenting Opinion by Judge Craig.

Author: Disalle

[ 39 Pa. Commw. Page 630]

Timothy McCarl (Appellant), a registered nurse, has appealed from an order of the State Board of Nurse Examiners (Board), formally reprimanding him for violating Section 14 of The Professional Nursing Law (Law), Act of May 22, 1951, P.L. 317, as amended, 63 P.S. § 224, which provides that the Board "may suspend or revoke any license" in any case where it finds that a licensee has "wilfully violated" any of its regulations. Appellant was found to have administered an anesthetic in the absence of a directing physician as is required by the regulation presently found at 49 Pa. Code § 21.17.

Appellant challenges this determination, arguing first, that the finding of wilful violation of a regulation of the Board is not supported by substantial evidence; second, that the Board may only suspend or revoke a license, but is without authority to formally reprimand a violator; and third, that he was denied due process of law in that (1) the Board "affirmatively" misled him in part of the proceedings, (2) not all the Board members rendering the adjudication and order actually "heard" the evidence and (3) the administrative procedure employed in this case embraced an improper commingling of the investigative, prosecutorial, and adjudicative functions.

[ 39 Pa. Commw. Page 631]

The record clearly supports the Board's determination that Appellant wilfully violated a regulation of the Board.*fn1 It establishes that Appellant was aware of his responsibility to secure the presence of a directing physician; that he knew that the physician whom he sought to have present was not, in fact, present during the administration of the anesthetic;*fn2 and that Appellant was aware that the physician who was present did not know that he was about to administer the anesthetic.*fn3

Turning to the second argument, we note once again that Section 14 of the Law provides that the Board "may" suspend or revoke a license if a licensee is found to have violated a regulation of the Board. The Board found that a violation occurred. Clearly, then, it could have revoked or suspended Appellant's license. It chose, nevertheless, to be lenient and impose a formal reprimand -- a sanction not specifically

[ 39 Pa. Commw. Page 632]

    referred to in the Law. Given the power to suspend or revoke, certainly the Board had authority to invoke the lesser penalty.

Turning finally to the due process contentions, we note that the first question, as to whether the Commonwealth affirmatively misled Appellant, and thereby prejudiced his defense, relates to the fact that the Board, in an apparent attempt to afford Appellant every possible opportunity to make his case, scheduled another hearing to permit him to introduce into evidence the deposition of a physician. Appellant now asserts that the Commonwealth prejudiced his defense ...


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