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KARL K. LEWIN v. COMMONWEALTH PENNSYLVANIA (12/21/87)

decided: December 21, 1987.

KARL K. LEWIN, M.D., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF MEDICINE, RESPONDENT



Original Jurisdiction in case of Karl K. Lewin, M.D. v. Commonwealth of Pennsylvania, State Board of Medicine.

COUNSEL

Samuel J. Reich, with him, Charles C. Bell, Hess, Reich, Georgiades, Ray & Homyak, P.C., for petitioner.

Thomas F. Halloran, Senior Deputy Attorney, with him, Kate L. Mershimer, Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Colins. Judge Palladino concurs in the result only. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Colins

[ 112 Pa. Commw. Page 111]

Karl K. Lewin, M.D., a psychiatrist (Petitioner), has filed a Petition for Review in our original jurisdiction directed against the State Board of Medicine (Board) which seeks a declaration that Section 40(a) of the Medical Practice Act (Act), Act of December 20, 1985, P.L. 457, 63 P.S. ยง 422.40(a), providing for the temporary suspension of a medical license, is unconstitutional. Petitioner further requests that we enjoin the Board from continuing the suspension of his license until he is afforded a dispositional hearing on the allegations of sexual misconduct which culminated in the Board's action pursuant to Section 40(a) of the Act. We here consider Preliminary Objections filed by the Board which challenge the nature of our jurisdiction and demur to the Petition for Review.

We distill the following facts from petitioner's Petition for Review. Based upon the allegations of three former patients to the effect that petitioner had engaged them in sexual conduct, the Board, on June 23, 1987, entered an emergency order temporarily suspending petitioner's license, in accordance with Section 40(a) of the Act. That section pertinently provides as follows:

[ 112 Pa. Commw. Page 112]

(a) Temporary suspensions. -- A license . . . may be temporarily suspended under circumstances as determined by the [B]oard to be an immediate and clear danger to the public health and safety. The [B]oard shall issue an order to that effect without a hearing, but upon due notice, to the licensee . . . which shall include a written statement of all allegations against the licensee. . . . The [B]oard shall thereupon commence formal action to suspend, revoke or restrict the license. . . . All actions shall be taken promptly and without delay. Within 30 days following the issuance of an order temporarily Page 112} suspending a license, the [B]oard shall conduct . . . a preliminary hearing to determine that there is a prima facie case supporting the suspension. . . . If it is determined that there is not a prima facie case, the suspended license shall be immediately restored. The temporary suspension shall remain in effect until vacated by the [B]oard, but in no event longer than 180 days. (Emphasis added.)

The Board's suspension order included notice of a preliminary hearing to be held on July 22, 1987, which hearing is above defined as encompassing a determination of whether or not "there is a prima facie case supporting the suspension."

Petitioner avers that he did not receive prior notification of the pendency of the allegations nor did the Board ever inquire of him regarding the validity of same; he categorically denies the charges. Petitioner was served with the Board's order on June 24, 1987, and at that time surrendered his certificate and license. Notice of his suspension was published in the local newspaper of general circulation and he avers that he has not practiced medicine since that date. He alleges that he has consequently suffered immediate and irreparable harm both financially and professionally, such harm augmented, of course, by the publication of his license suspension. Moreover, he submits that he will continue to suffer such harm by virtue of the Act's failure to provide a dispositional hearing for up to 180 days after the suspension.

Petitioner argues that the above scenario evidences an unconstitutional deprivation of due process. He submits that Section 40(a) of the Act denies him due process by: (1) failing to define the circumstances presenting a "clear and immediate danger to ...


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