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12/02/97 SURESH CHANDRA GHOSH v. PENNSYLVANIA

December 2, 1997

SURESH CHANDRA GHOSH, M.D., PETITIONER
v.
PENNSYLVANIA BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, RESPONDENT



Appealed From No. 0148-49-96. State Agency State Board of Medicine.

Before: Honorable Joseph T. Doyle, Judge, Honorable Jim Flaherty, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: December 2, 1997

Suresh Chandra Ghosh, M.D., (Ghosh) petitions for review of the November 16, 1996 order of the State Board of Medicine of the Bureau of Professional and Occupational Affairs (Board). The Board adopted the Conclusions of law and the findings of fact of a hearing examiner and suspended the medical license of Ghosh for 6 days for his failure to timely pay an emergency surcharge levied by the Medical Professional Catastrophic Loss Fund (CAT fund or fund). The hearing examiner had originally entered an order suspending Ghosh's license for 12 days, which the Board modified to 6 days. We affirm.

Ghosh is a cardiovascular surgeon. Ghosh was billed in the amount of $12,230 due December 15, 1995 for an emergency surcharge assessed by the CAT fund pursuant to the Health Care Services Malpractice Act *fn1 (HCSMA or the Act). Despite several notices to Ghosh of his obligation to pay the assessed surcharge, he failed to pay the amount due until sometime in June 1996, only after formal disciplinary proceedings had been initiated by the Board in March 1996 when an order to show cause was filed against Ghosh. Although Ghosh pleaded financial hardship, the hearing examiner concluded that "despite Respondent's protestations of financial hardship, the hearing examiner is not persuaded that Respondent did all that he could to pay the emergency surcharge until the instant license disciplinary action was brought." (Hearing Examiner's Adjudication at p. 8.)

The sole issue which Ghosh presents is: whether a suspension of a medical license for violation of the HCSMA due to late payment of an emergency surcharge represents a violation of constitutional protection, as the Act as applied is void for vagueness, because the Act does not specifically require mandatory participation in the fund and does not put physicians on sufficient notice that nonparticipation or late payment of a surcharge will result in suspension of license. *fn2

Initially, Ghosh contends that the only requirement which the HCSMA imposes is that medical practitioners maintain basic malpractice insurance coverage. Ghosh maintains that the HCSMA does not require participation in the CAT fund and because it does not require such participation, it cannot be read as to require that he pay the emergency surcharge. Specifically, Ghosh relies on principles of statutory construction to buttress his argument. Ghosh points out the difference in language, on the one hand, between Section 811 (c) of the Act, 40 P.S. § 1301.811 (c) which provides that certain medical partnerships that acquire their insurance from the Joint Underwriting Association "shall be required to participate" in the fund and Section 701 (a)(2) of the Act, 40 P.S. § 1301.701 (a)(2) which states that providers with less than 50% of their practice in Pennsylvania "shall not be required to contribute or be entitled to participate in the fund", and on the other hand, the language of § 701 (a) (1)(I) of the Act, 40 P.S. § 1301.701(a)(1)(i) which merely provides that physicians with more than 50% of their practice in Pennsylvania "shall be entitled to participate in the fund." Ghosh contends that this linguistic difference requires a finding that the legislature intended that physicians with more than 50% of their practice in Pennsylvania have a right to participate in the CAT Fund but that there is no requirement that they do so and he is thus under no statutory obligation to pay the surcharge.

However, this argument is unpersuasive because it ignores the plain language of the Act which permits the Insurance Commissioner to "determine and levy an emergency surcharge on all health care providers then entitled to participate in the fund." 40 P.S. § 1301.701 (e)(3) (emphasis added). This provision permits the Commissioner to levy the emergency surcharge upon a physician who is merely "entitled" to participate in the CAT fund regardless of whether the physician has actually participated in the CAT fund previously or has a need to participate in the CAT fund or is required to participate. The record sufficiently establishes that Ghosh is entitled to participate in the CAT fund. See, e.g., "Response of the Defendant, Suresh C. Ghosh, M.D. to the Order to Show Cause of the Commonwealth of Pennsylvania...." (R.R. at 9a-14a.) By the Commissioner causing the bill for the surcharge to be sent to Ghosh, the Commissioner "determined and levied an emergency surcharge on" Ghosh who was one of the "healthcare providers then entitled to participate in the fund" pursuant to the plain language of § 1301.701(e)(3). Thus, the issue of whether "participation in the fund is mandatory" as it is for those partnerships which obtain insurance through the Joint Underwriting Association is not the dispositive issue. Rather, the question to be answered for purposes of whether the Commissioner could determine and levy the surcharge against Ghosh and, therefore, whether Ghosh was required to pay the surcharge is: whether Ghosh was entitled to participate in the CAT fund. As the record establishes that he was entitled to participate in the fund, the Commissioner could levy the surcharge against Ghosh consistent with the statute.

Moreover, Ghosh's suggestion that because the statute nowhere in explicit terms requires a healthcare provider to pay the surcharge once it is determined and levied by the Commissioner, then there is no statutory obligation to render such a payment borders on the unreasonable. That the legislature would empower the Commissioner to levy and determine a surcharge upon all providers who are entitled to participate in the fund but not thereby intend that those so surcharged would be obliged to pay suggests that the legislature intended an absurd result. This is contrary to the fundamental rule of construction that the "General Assembly does not intend a result that is absurd, impossible of execution or unreasonable." 1 Pa.C.S. § 1922 (1).

Moreover, reading the Act to impose an obligation to pay the emergency surcharge on all healthcare providers entitled to participate in the CAT fund comports with its purpose, which is, inter alia, to make available professional liability insurance at a reasonable cost. See Section 102 of the Act, 40 P.S. § 1301.102. This Court has previously concluded that

If healthcare providers could elect not to participate in contributing to the Fund, it takes no special knowledge of logic or of human nature to conclude that "low risk" health care providers would withdraw, leaving the Fund to be financed by "high risk" insureds and almost inevitably assuring its depletion. Without the Fund which allows insurers to establish an actuarial basis for anticipation of needed reserves, insurers might again find malpractice an uninsurable risk and either drastically curtail or withdraw totally from participating in the market, in short, creating conditions for precisely the same "crisis" the legislation was designed to obviate.

McCoy v. Commonwealth Board of Medical Education and Licensure, 37 Pa. Commw. 530, 391 A.2d 723, 727-28 (Pa. Commw. 1978)(emphasis added). To find that the Commissioner could determine and levy the surcharge without such action causing a corresponding obligation upon those whom the levy was made to pay the surcharge would bring about the very situation this Court found unacceptable in McCoy.

Ghosh makes a second argument that the suspension of his license for failure to timely pay the surcharge is constitutionally infirm because the statute is void for vagueness as applied. Echoing his first argument, Ghosh alleges that since the Act does not clearly require participation in the Fund or clearly impose an obligation to pay the emergency ...


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