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12/10/97 JAGJIT S. TANDON v. STATE BOARD MEDICINE

December 10, 1997

JAGJIT S. TANDON, M.D., PETITIONER
v.
STATE BOARD OF MEDICINE, RESPONDENT



Appealed From No. 96-49-01037. State Agency, State Board of Medicine.

Before: Honorable James R. Kelley, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Kelley.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: December 10, 1997

Dr. Jagjit S. Tandon (Doctor) appeals from the adjudication and order of the State Board of Medicine (board) affirming the adjudication and order of a hearing examiner which imposed a stayed three-year suspension of his license to practice medicine in Pennsylvania and a $1,000.00 civil penalty pursuant to the Medical Practice Act of 1985 (Act). *fn1 We affirm.

The facts of this case may be summarized as follows. On May 17, 1995, while Doctor was practicing medicine in Tennessee, the Tennessee Board of Medical Examiners (Tennessee Board) issued a final order suspending Doctor's license to practice medicine in that state, and directing that he undergo a psychiatric examination. The Tennessee Board's order was based on its determination that Doctor engaged in "unprofessional, dishonorable or unethical" conduct under the Tennessee Medical Practice Act.

The Tennessee Board found that in April of 1994, Doctor restrained a female insurance agent in his office, kissed her on both cheeks and her mouth, unzipped her dress, pulled at her bra and bit her breast. The Tennessee Board also found that in May of 1994, Doctor kissed his pregnant receptionist and rubbed his hands over the clothing covering her breasts.

On July 19, 1995, the Tennessee Board issued a second order reinstating Doctor's license to practice medicine in that state and allowing him to voluntarily retire his license forthwith, provided that he personally appear before the Tennessee Board before reactivating his Tennessee license.

In August of 1995, Doctor moved to Pennsylvania, reactivated his license to practice medicine in Pennsylvania, and began to practice as an oncologist on the staff of St. Mary's Regional Medical Center. Doctor is the only oncologist on staff at St. Mary's and is currently treating approximately 170 patients per month with cancer or blood disorders.

On February 27, 1996, the "Probable Cause Screening Committee" of the board issued an order temporarily suspending Doctor's Pennsylvania license pursuant to section 40(a) of the Act *fn2 based on the Tennessee Board's orders. On May 1, 1996, following a preliminary hearing before a hearing examiner, the board vacated the temporary suspension based on its determination that Doctor's misconduct did not present an immediate danger to the public.

On May 9, 1996, a prosecuting attorney with the Pennsylvania Bureau of Professional and Occupational Affairs (bureau) filed a notice and order to show cause charging Doctor with violating section 41(4) of the Act *fn3 based on the discipline imposed by the Tennessee Board. On September 5, 1996, a hearing on the notice and order to show cause was conducted before a hearing examiner. On September 6, 1996, the hearing examiner issued an adjudication and order finding that Doctor violated section 41(4) of the Act by reason of the disciplinary action taken against him by the Tennessee Board. Pursuant to section 42 of the Act *fn4, the hearing examiner imposed a three-year suspension of Doctor's license retroactive to February 27, 1996, with all but the period from February 27, 1996 to March 26, 1996 stayed. The hearing examiner also imposed a $1,000.00 civil penalty.

On October 1, 1996, Doctor filed an application for review of the hearing examiner's adjudication and order with the board. In October of 1996, both Doctor and the Commonwealth filed briefs with the board in support of their respective positions regarding his application for review. On January 30, 1997, the board issued an adjudication and order affirming the hearing examiner's adjudication and order. Doctor then filed the instant appeal in this court.

In this appeal Doctor claims: *fn5 (1) the board erred in affirming the hearing examiner's adjudication and order as the imposition of discipline by the Pennsylvania board based on, and following, the discipline imposed by the Tennessee Board violates his rights as guaranteed by the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions; (2) the board erred in affirming the hearing examiner's adjudication and order as no evidence was presented to demonstrate harm to any patients or the potential for such harm, and the events underlying the disciplinary action were remote in time; (3) the discipline imposed by the board was excessively harsh, unreasonable, arbitrary and capricious thereby constituting an abuse of discretion; and (4) the board erred in failing to adopt the findings of the Tennessee Board, disregarded binding legal Conclusions that the incidents were remote in time and did not involve patient care, and improperly reimposed the initial period of suspension imposed under section 40(a) of the Act which had been previously vacated.

We initially note that, on appeal, this court's scope of review of the board's order is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Barran v. State Board of Medicine, 670 A.2d 765 (Pa. Commw. 1996), petition for allowance of appeal denied, 544 Pa. 685, 679 A.2d 230 (1996). When reviewing a decision of the board, this court may not reweigh the evidence presented or Judge the credibility of witnesses. Id. Thus, as the ultimate finder of fact, 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. Id.

ISSUE I

In this appeal, Doctor first claims that the board erred in affirming the hearing examiner's adjudication and order as the imposition of discipline by the board based on, and following, the discipline imposed by the Tennessee Board violates his rights as guaranteed by the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions.

The Fifth Amendment to the United States Constitution provides, in pertinent part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Likewise, Article 1, Section 10 of the Pennsylvania Constitution provides, in pertinent part, "no person shall, for the same offense, be twice put in jeopardy of life or limb..." Pa. Const. art. 1, § 10. *fn6

As the United States Supreme Court has stated:

We have explained that 'the [Double Jeopardy] Clause serves the function of preventing both successive punishment and successive prosecution,' United States v. Dixon, 509 U.S. 688, 704, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993) (citing North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969)), and that 'the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it,' Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 173, 21 L. Ed. 872 (1874). See also Schiro v. Farley, 510 U.S. 222, 229, 127 L. Ed. 2d 47, 114 S. Ct. 783 (1994); United States v. Halper, 490 U.S. 435, 440, 451, n. 10, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). Significantly, the language of the Double Jeopardy Clause protects against more than the actual imposition of two punishments for the same offense; by its terms, it protects a criminal defendant from being twice put in jeopardy for such punishment. See Price v. Georgia, 398 U.S. 323, 326, 26 L. Ed. 2d 300, 90 S. Ct. 1757 (1970). That is, the Double Jeopardy Clause 'prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense. Helvering v. Mitchell, 303 U.S. 391, 399, 82 L. Ed. 917, 58 S. Ct. 630 (1938).

Witte v. United States, 515 U.S. 389, 395-96, 132 L. Ed. 2d 351, 115 S. Ct. 2199 (1995) (emphasis in original).

The Supreme Court has also noted that:

This court many times has held that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See, e.g., [ Pearce ]. The third of these protections--the one at issue here--has deep roots in our history and jurisprudence. As early as 1641, the Colony of Massachusetts in its 'Body of Liberties' stated: 'No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.' American Historical Documents 1000-1904, 43 Harvard Classics 66, 72 (C. Eliot ed. 1910). In drafting his initial version of what came to be our Double Jeopardy Clause, James Madison focused explicitly on the issue of multiple punishment: 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.' 1 Annals of Cong 434 (1789-1791) (J. Gales ed 1834). In our case law, too, this court, over a century ago, observed: 'If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. [ Ex parte Lange, 18 Wall. at 168].

U.S. v. Halper, 490 U.S. 435, 440, 104 L. Ed. 2d 487, 109 S. Ct. 1892.

Thus, as we noted in Sweeny v. State Board of Funeral Directors, 666 A.2d 1137, ...


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