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01/25/96 PETER D. BARRAN v. STATE BOARD MEDICINE

January 25, 1996

PETER D. BARRAN, M.D., PETITIONER
v.
STATE BOARD OF MEDICINE, RESPONDENT



APPEALED From No. May 23, 1995. State Agency State Board of Medicine.

Before: Honorable James Gardner Colins, President Judge, Honorable Doris A. Smith, Judge, Honorable George T. Kelton, Senior Judge

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: January 25, 1996

Peter Barran seeks review of the May 23, 1995 order of the State Board of Medicine (Board) denying Barran a graduate medical license under provisions of the Medical Practice Act of 1985 (MPA), Act of December 20, 1985, P.L. 457, as amended, 63 P.S. §§ 422.1 - 422.45. Barran questions, inter alia, whether the Board's denial must be based upon one or more of the five specifically stated deficiencies set forth in Section 41(5) of the MPA, 63 P.S. § 422.41(5); and whether the Board erred in refusing to issue a medical license to Barran under Section 41(4), 63 P.S. § 422.41(4), on the sole basis of the suspension of Barran's medical license by the state of Massachusetts. *fn1

Barran applied to the State Board of Medicine for a graduate medical license in May 1994. In Barran's application, he noted that his license to practice medicine in Massachusetts had been indefinitely suspended on October 5, 1988 due to mental instability related to the killing of his housemate on October 6, 1986. The Massachusetts Board of Registration had temporarily suspended Barran's license three weeks after Barran committed the crime. While under the influence of alcohol and drugs, Barran killed his housemate by bludgeoning him in the face, head and neck with a claw hammer. He pleaded guilty on December 1, 1988 to voluntary manslaughter and was sentenced to serve twelve to twenty years' imprisonment. Barran was incarcerated in a state mental institution and several prisons in Massachusetts from October 1986 through November 1992. Upon his release from prison, Barran was placed on five years' probation, to conclude in November 1997. Barran's request for reinstatement of his Massachusetts license was denied by the Massachusetts licensing authority in June 1993. *fn2

On July 26, 1994, the Board voted to provisionally deny Barran a license under Sections 41(4) and 41(5) of the MPA on the basis of disciplinary action taken by another licensing authority and Barran's inability to practice medicine with reasonable skill and safety to patients. Barran filed a written appeal; the Board thereafter delegated Barran's application to a hearing examiner to conduct a hearing. On November 5, 1994, the hearing examiner issued an adjudication and order directing that a license be issued to Barran. On November 21, 1994, the Commonwealth filed with the Board an application for review and an application for stay of the order; a temporary stay was issued by the Board the next day, and on December 20, 1994 the Board granted a stay of the hearing examiner's order pending full review of the record and a decision on the merits. The Board denied Barran's petition for reconsideration and review of the stay order, and upon oral argument and consideration of the merits, the Board issued its May 23, 1995 order now on appeal to this Court. *fn3

I.

The Board is the agency charged with the responsibility and authority to oversee the medical profession and to determine the competency and fitness of an applicant to practice medicine within the Commonwealth. Cassella v. State Board of Medicine, 119 Pa. Commw. 394, 547 A.2d 506 (Pa. Commw. 1988), appeal denied, 522 Pa. 585, 559 A.2d 528 (1989); Reisinger v. State Board of Medical Education and Licensure, 41 Pa. Commw. 553, 399 A.2d 1160 (Pa. Commw. 1979). The state has the right to regulate and license professionals to protect the public health; and an applicant for licensure bears the burden of proving that he or she meets the qualifications for obtaining a license to practice a profession or occupation. Allen v. State Board of Accountancy, 141 Pa. Commw. 418, 595 A.2d 771 (Pa. Commw. 1991); Quintana, D. O. v. State Board of Osteopathic Medical Examiners, 77 Pa. Commw. 438, 466 A.2d 250 (Pa. Commw. 1983). Furthermore, an individual has no vested right to practice medicine within the Commonwealth. Oliver v. Pennsylvania Board of Psychologist Examiners, 45 Pa. Commw. 195, 404 A.2d 1386 (Pa. Commw. 1979).

As the ultimate factfinder, the Board may accept or reject the testimony of any witness in whole or in part, and this Court is bound by the credibility determinations made by the Board. Atkins v. Workmen's Compensation Appeal Board (GEO-CON, Inc.), 651 A.2d 694 (Pa. Commw. 1994). When reviewing a decision by the Board, this Court may not reweigh the evidence presented or Judge the credibility of witnesses. Kundrat v. State Dental Council and Examining Board, 67 Pa. Commw. 341, 447 A.2d 355 (Pa. Commw. 1982). Moreover, the Board contains medical doctors and the Secretary of Health pursuant to Section 3 of the MPA, 63 P.S. § 422.3; and it is empowered to make determinations and draw Conclusions on factual issues without resorting to additional medical testimony. Kundrat.

Section 41(5) of the MPA, relating to the ability to practice medicine, authorizes the denial of a medical license for the following reasons:

Being unable to practice the profession with reasonable skill and safety to patients by reason of illness, addiction to drugs or alcohol, having been convicted of a felonious act prohibited by the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or convicted of a felony relating to a controlled substance in a court of law of the United States or any other state, territory, possession or country, or if he or she is or shall become mentally incompetent.

Barran contends that to deny him a license under this section, the Board must demonstrate that his inability to practice medicine stems from one of the specifically stated disabilities, and he asserts that the Commonwealth has failed to prove any of those disabilities. Barran argues that the evidence demonstrated his clinical competency to practice medicine, compassion and caring, ability to handle stress and lack of mental illness. He further argues that the Board ignored evidence from a licensed psychologist who demonstrated that Barran was mentally competent to practice medicine and that the Board members are not ...


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