Terry Bennett,
M.D.
v.
Docket No.
05-E-0478
MOTION FOR INJUNCTIVE
RELIEF
NOW COMES the petitioner Terry Bennett, M.D., by and through his attorneys
Douglas, Leonard & Garvey, P.C., and respectfully petitions this Honorable
Court to enjoin the New Hampshire Board of Medicine from proceeding with
disciplinary proceedings against him, stating in support thereof as
follows:
I.
Introduction
1. By Notice of Hearing dated
August 30, 2005 (attached hereto as Exhibit A), the Board of Medicine scheduled
a December 7, 2005 hearing (rescheduled to April 5, 2006), relative to proposed
disciplinary action against Dr. Bennett arising from two (2) complaints.
The Board of Medicine has subsequently postponed the April 5 hearing pending
this Court’s action on the within Motion, which challenges the lawfulness of the
Board proceedings.
2. One of the two complaints,
filed in 2001 by “Patient S,” was already investigated and determined to be
“Unfounded” nearly four (4) years ago by the Board’s parent agency, the State
Department of Health and Human Services. The other complaint, filed by
“Patient A,” concerns a mere comment that Dr. Bennett made to that patient
regarding her obesity. The disciplinary action that 68-year-old Dr.
Bennett faces includes possible revocation of his license to
practice.
3. Dr. Bennett respectfully
moves this Court to enjoin the Board from proceeding with any disciplinary
action against him pursuant to the Notice of Hearing because: (a) the Board’s
pursuit of disciplinary action against Dr. Bennett relative to the “Patient A”
complaint violates Dr. Bennett’s rights under the State and Federal
Constitutions to freedom of speech and due process; and (b) the doctrines of
collateral estoppel and res judicata bar the Board from relitigating the
“Patient S” complaint.
II.
Parties
4. The petitioner Terry M.
Bennett, M.D. is a medical doctor licensed to practice medicine in the State of
5. The New Hampshire Board of
Medicine (the “Board”) is a State agency administratively attached to the State
Department of Health and Human Services pursuant to RSA 21-G:10. The
Board, among other things, is responsible for licensing medical practitioners
and for commencing disciplinary action against existing licensees for alleged
violations of RSA 329:17. The Board is situated at
III.
Jurisdiction and
Venue
6. The
superior court has equitable jurisdiction to review the lawfulness of the
Board’s proceedings prior to the imposition of any disciplinary sanction
against Dr. Bennett, and to impose injunctive relief barring the Board from
proceeding with disciplinary action, because Dr. Bennett would otherwise
suffer immediate irreparable harm, including but not limited to potential
revocation or suspension of his license to practice medicine. Thompson
v. N.H. Bd. of Medicine, 143 N.H. 107 (1998) (affirming superior court’s
exercise of jurisdiction over petition for injunctive relief filed by doctor
facing discipline from Board of Medicine).
7. Venue is appropriate because
the Board sits in
IV.
Facts
8. On
9. The Board has commenced
disciplinary action against Dr. Bennett because of two (2) complaints, one of
which the Department of Health and Human Services (HHS) has already investigated
and determined to be “Unfounded.”
10. The first complaint, filed with the
Board by “Patient S” over four (4) years ago on December 31, 2001, alleges that
Dr. Bennett “spoke to Patient S in an unprofessional manner suggesting that she
purchase a pistol with which to commit suicide” on some undetermined date in the
fall of 2001. Exhibit B at paragraph 6B. Dr. Bennett has steadfastly
denied ever making a comment of this nature to any patient. HHS
agreed—four years ago.
11. Specifically, HHS through its Division
of Elderly & Adult Services investigated the “Patient S” complaint for the
first seven (7) months of 2002, pursuant to RSA 161-F:42-57. The HHS
investigation included an interview of one of Patient S’ treating doctors, Dr.
Peter Couros, who advised HHS in June of 2002 that “because of Patient S’ brain
tumor and surgery he doesn’t think ‘she is clear about what is real, she
becomes confused.’” Exhibit C (Division of Elderly and Adult Services
interview notes). HHS also interviewed “Patient S,” her daughter, her
friend, her pastor, and Dr. Bennett.
12. By letter dated
13. Despite the fact that HHS already found
the complaint “Unfounded” nearly four (4) years ago, the instant Board as part
of HHS has resurrected the complaint for the new disciplinary hearing. The
Board has done so notwithstanding that no new evidence has materialized to
substantiate the complaint since the original investigation concluded in July of
2002.
14. The second complaint alleges that Dr.
Bennett engaged in “unprofessional conduct” on or about
15. In accordance with Board procedures, Dr.
Bennett filed a Motion to Dismiss with the Board, arguing that the doctrines of
collateral estoppel and res judicata barred the Board from relitigating Patient
S’ previously resolved complaint, and further arguing that the prosecution of
the “Patient A” complaint violated Dr. Bennett’s First Amendment rights and his
due process rights. Exhibit E. Three members of the nine-member
Board (less than a quorum) denied Dr. Bennett’s motion on March 10, 2006, in a
deliberative session that this Court ordered be held
publicly.
16. Dr. Bennett also requested the right to
depose his two accusers by motion to the Board. Exhibit F. Not only
did the Board deny Dr. Bennett the right to take depositions to prepare for the
hearing, but the Board granted the State’s motion (Exhibit G) that hearsay could
be used at the hearing instead of live
testimony.
17. On
18. In other words, if the Board has its
way, “Witness X” and “Witness Y” will be allowed to testify at the hearing and
to hurl allegations at Dr. Bennett from beneath a veil of anonymity,
transforming the Board of Medicine into a veritable “Star Chamber,” and
depriving Dr. Bennett of the opportunity for effective cross examination.
How could Dr. Bennett possibly conduct an effective cross examination upon
someone whose identity is secret?
19. The three-member panel that deliberated
on
20. Furthermore, RSA 329:7 imposes a quorum
requirement. Accordingly, since the Board consists of nine members under
RSA 329:2, at least five Board members must be present when the Board engages in
official acts, such as ruling on pretrial motions. See Petition of Grimm, 138 N.H. 42,
48 (1993). Only three Board members attended the March 10, 2006,
deliberative session, however, where the Board decided to deny Dr. Bennett’s
motion to dismiss and his motion to depose witnesses, and where the Board
decided to grant the State’s motion to substitute hearsay testimony for live
testimony and to allow witnesses to testify
anonymously.
21. Dr. Bennett raised objections to the
22. RSA 329:17, VIII, provides that
“[d]isciplinary action taken by the board...may be appealed to the supreme court
under RSA 541. However, no sanction imposed by the board shall be stayed
during appeal.”
23. Accordingly, should the Board of
Medicine speech police decide to sanction Dr. Bennett for an allegedly offensive
comment, or should the Board decide to sanction Dr. Bennett for the 2001
complaint that HHS already found “Unfounded,” the sanction—which could prevent
Dr. Bennett from practicing or could restrict his right to practice—would remain
in place through the appeal process.
24. Pursuant to Thompson v. N.H. Bd. of
Medicine, 143 N.H. 107 (1998), Dr. Bennett hereby seeks Superior Court
intervention to find the Board’s proceedings unlawful and to enjoin the Board
from pursuing disciplinary action against him based on the “Patient A” and
“Patient S” complaints, because: (a) disciplinary action against Dr.
Bennett relative to the “Patient A” complaint would violate Dr. Bennett’s
constitutional rights to free speech and due process; (b) disciplinary action
against Dr. Bennett relative to the “Patient S” complaint is barred by
collateral estoppel and res judicata; and (c) Dr. Bennett faces irreparable harm
if the Court does not review the lawfulness of the Board’s proceedings because
the Board could impose restrictions on the doctor’s right to practice that would
remain in place throughout the appeal process, potentially depriving Dr. Bennett
of his livelihood and causing him to lose
patients.
V.
Prayer For Injunctive Relief Pursuant To 42 U.S.C. §1983 And State Law To
Enjoin The Board Of Medicine From Proceeding With Disciplinary Action Against
Dr. Bennett Relating To The “Patient A” Complaint Because Such Disciplinary
Action Abridges Dr. Bennett’s Free Speech Rights Under The First And Fourteenth
Amendments To The Federal Constitution And Under Part I, Article 22 Of The New
Hampshire Constitution
25. The First Amendment of the Federal
Constitution as applied to the States by the Fourteenth Amendment forbids the
State of
26. Furthermore, Part I, Article 22 of the
New Hampshire Constitution states that free speech is “essential to the security
of freedom in a state” and “ought...to be inviolably
preserved.”
27. In violation of these twin
constitutional free speech guarantees, the Board proposes to discipline Dr.
Bennett for violation of RSA 317:17, VI, because Dr. Bennett allegedly made a
comment to “Patient A” that some people might find
offensive.
28. Regardless of whether Dr. Bennett’s
alleged comment was offensive to “Patient A,” the Board’s proposed disciplinary
action against him is unconstitutional under the Federal and State Constitutions
because “‘the fact that society may find speech offensive is not a sufficient
reason for suppressing it.’” Silva v.
29. Indeed, First Amendment case law
uniformly holds that the government cannot sanction its citizens for
purportedly offensive comments such as those Dr. Bennett is alleged to have made
to “Patient A.”
30. It is axiomatic that the First Amendment
protects speech that some may find offensive or disagreeable. Texas v.
Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle
underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or
disagreeable.”); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 206
(3d Cir. 2001) (future Supreme Court Justice Samuel Alito wrote that, “there is
also no question that the free speech clause protects a wide variety of speech
that listeners may consider deeply offensive, including statements that impugn
another’s race or national origin or that denigrate religious beliefs.”) (citing
Bradenburg v. Ohio, 395 U.S. 444 (1969) and Cantwell v.
Connecticut, 310 U.S. 296 (1940)); Street v.
31. These principles make irrefutably clear
that the First Amendment protects comments such as those Dr. Bennett is alleged
to have made to “Patient A.” A person is free to opine that only black men
might find obese women attractive, without fear of government prosecution,
regardless of how offensive some listeners may find such
comments.
32. The prosecution of the “Patient A”
complaint against Dr. Bennett would only be permissible if professionals somehow
could lose First Amendment protections when they practice their professions—a
proposition that the courts have squarely rejected. “The fact that doctors
are members of a regulated profession does not...result in a surrender of First
Amendment rights.” 1 Smolla & Nimmer on Freedom of Speech §10:44
(2005); Conant v. Walters, 309 F.3d 629, 637 (9th Cir. 2002)
(“Being a member of a regulated profession does not...result in a surrender of
First Amendment rights.”); Thomas v. Collins, 323 U.S. 516, 531 (1945)
(“the rights of free speech and a free press are not confined to any field of
human interest.”).
33. What the State seeks to do here is
impose an unconstitutional content-based restriction on Dr. Bennett’s speech,
condemning the speech because the State finds the content offensive, in
violation of well-established First Amendment principles. “[C]ontent-based
restrictions on speech are ‘presumptively invalid.’” Conant v.
Walters, 309 F.3d at 637-38 (9th Cir. 2002) (quoting R.A.V. v.
St. Paul, 505
34. The policy on which Hearing Counsel has
relied in her filings with the Board of Medicine, Principle I of the AMA Principles of Medical Ethics,
unquestionably lacks the requisite “narrow specificity” to survive First
Amendment scrutiny. Principle I states that, “[a] physician shall be
dedicated to providing competent medical care, with compassion and respect for
human dignity and rights.”
35. Indisputably, neither this principle,
nor any statute or regulation promulgated by the State, defines with “narrow
specificity” the types of speech that may constitute a violation. If the
State intends to sanction or discipline doctors for allegedly offensive comments
that doctors may make, the State must adopt narrow and specific regulations
defining the speech to be barred to have any hope of surviving First
Amendment scrutiny. The State has not done so, rendering the prosecution
of the “Patient A” complaint against Dr. Bennett flagrantly
unconstitutional.
36. In short, because no policy relied upon
by the State has the requisite “narrow specificity” to be considered a
constitutional content-based restriction on speech, the prosecution of the
“Patient A” complaint against Dr. Bennett violates the doctor’s First Amendment
rights, constituting impermissible suppression. The Board’s
unconstitutional action, if allowed to proceed, will effect dire consequences
not only for Dr. Bennett but for doctors and patients in
37.
In Allard, the Court held that a statute proscribing false speech to
police officers must be subjected to special scrutiny, holding that “the fear of
being prosecuted under laws prohibiting false speech may deter the promulgation
of valuable and protected speech.”
38. The Court should therefore grant Dr.
Bennett injunctive relief prohibiting the Board from pursuing any disciplinary
action against him relating to the “Patient A” complaint, finding that such
disciplinary action constitutes an unlawful suppression of Dr. Bennett’s free
speech rights under the Federal and State
Constitutions.
39. The Court should further award Dr.
Bennett his reasonable attorneys’ fees incurred in connection with seeking this
Court’s protection from the State’s unconstitutional actions in accordance with
42 U.S.C. §1988.
VI.
Prayer For Injunctive Relief Pursuant To 42 U.S.C. §1983 And State Law To
Enjoin The Board of Medicine From Proceeding With Disciplinary Action Against
Dr. Bennett Relating To The “Patient A” Complaint Because Such Disciplinary
Action Violates Dr. Bennett’s Due Process Rights Under The State and Federal
Constitutions
40. The Board proposes to discipline Dr.
Bennett for violations of RSA 329:17, VI(c) and (d) for Dr. Bennett’s alleged
comment to “Patient A.” The Board further proposes to discipline Dr.
Bennett for this comment under Med 501.02 (h), requiring licensees to adhere to
the AMA Principles of Medical
Ethics. Notably, the AMA itself declares that the principles
“are not laws.” Exhibit H.
41. Under the State and Federal
Constitutions, “‘[a] statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it
prohibits. Second, if it authorizes or even encourages arbitrary and
discriminatory enforcement.’” State v. Porelle, 149 N.H. 420, 423
(2003) (quoting Hill v. Colorado, 530
42. RSA 329:17, VI (c) and (d), and Med
502.02 (h), are impermissibly vague as applied to Dr. Bennett for both of the
reasons cited in Porelle.
43. First, both the statutes and the
regulation fail to apprise a person of ordinary intelligence that a mere comment
that some people might find offensive could give rise to a statutory or
regulatory violation for “unprofessional conduct,” leading to possible license
suspension or revocation.
44. Second, the statutes and the regulation,
if applied to speech, authorize and encourage arbitrary and discriminatory
enforcement. The Board has never adopted any regulations to clarify
what would constitute “unprofessional” speech. See DeWees v. N.H. Bd. of Pharmacy,
130 N.H. 396, 403, 406 (1988) (The Court acknowledged that the term
“unprofessional conduct” was “difficult to define” and recommended that the
Board of Pharmacy promulgate regulations defining “unprofessional conduct” to
avoid future appeals claiming “unconstitutional vagueness.”). Without any
such regulations defining “unprofessional speech,” the Board has impermissibly
broad discretion to determine—arbitrarily—the speech that is “unprofessional”
and the speech that is acceptable. Moreover, the Board may then
arbitrarily and discriminatorily decide to discipline certain doctors for
supposedly “unprofessional speech,” while refraining from disciplining others,
depending on the “political correctness” quotient of the Board
members.
45. RSA 329:17, VI (c) and (d) and Med
501.02(h) are, therefore, impermissibly vague as applied to Dr. Bennett’s
alleged speech to “Patient A” because: (a) neither the statutes nor the
regulation apprise a person of ordinary intelligence that a mere comment that
some might find offensive could trigger a violation leading to disciplinary
action; and (b) the statutes and regulation if applied to speech encourage
arbitrary and discriminatory enforcement, due to the absence of any regulations
defining “unprofessional speech.”
46. The Court should therefore find RSA
329:17, VI (c) and (d) and Med 502.02 (h) unconstitutionally vague as applied to
speech and should enjoin the Board from proceeding with any further disciplinary
action against Dr. Bennett arising from his alleged comments to “Patient
A.”
VII.
Prayer For Injunctive Relief To Enjoin The Board Of Medicine From
Pursuing Disciplinary Action Against Dr. Bennett Based On The “Patient S”
Complaint
Because The Doctrines Of Collateral Estoppel And Res Judicata Bar The Board
From Relitigating A Complaint Determined To Be
“Unfounded” In 2002.
1.
Collateral
Estoppel
47. Collateral estoppel “may preclude the
relitigation of findings by an administrative board.” Farm Family Mut.
Ins. Co. v. Peck, 143 N.H. 603, 605 (1999). Relitigation of an
administrative agency’s findings is barred by collateral estoppel when:
(1) the issue subject to estoppel is identical in each action; (2) the first
action resolved the issue finally on the merits; (3) the party to be estopped
appeared in the first action or was in privity with someone who did; (4) the
party to be estopped had a full and fair opportunity to litigate the issue; and
(5) the finding was essential to the first judgment.
48. All elements of collateral estoppel are
present here, barring the Board from relitigating the 2001 complaint that was
determined to be “Unfounded” in July of 2002 by the Board’s fellow HHS
affiliate, the Division of Elderly & Adult
Services.
49. First, the issue is identical. The
issue that the Division of Elderly & Adult Services addressed in 2002—and
the issue that the Board of Medicine now seeks to revive—is whether Dr. Bennett
at some point in the fall of 2001 “spoke to Patient S in an unprofessional
manner suggesting that she purchase a pistol with which to commit suicide as a
means of putting an end to her suffering.”
50. Second, the 2002 Division of Elderly
& Adult Services investigation resolved the issue finally on the merits,
finding the “Patient S” complaint to have been
“Unfounded.”
51. Third, the party to be estopped (HHS and
the Board) appeared in the first matter, or at a minimum was in privity with an
entity that did. This is true because both the Board of Medicine and the
Division of Elderly & Adult Services are affiliates of
HHS.
52. Fourth, the party to be estopped had a
full and fair opportunity to litigate the issue in 2002. HHS conducted a
seven-month investigation following its receipt of the “Patient S”
complaint. HHS had a full and unrestricted opportunity to speak to all
witnesses and gather all evidence relative to the complaint. Indeed, HHS
has the exact same evidence today relative to the “Patient S” complaint as HHS
had at the conclusion of its investigation in 2002! HHS concluded then
that the evidence did not substantiate the complaint, thereby vindicating Dr.
Bennett. The Board of Medicine as an HHS-affiliated agency is therefore
collaterally estopped from resuscitating the matter for relitigation nearly four
(4) years later.
53. Finally, the fifth element of collateral
estoppel is satisfied because the HHS finding that insufficient evidence existed
to substantiate the “Patient S” complaint was essential to the
54. The Board is thus collaterally estopped
from pursuing any disciplinary action against Dr. Bennett relative to the
“Patient S” complaint that HHS already fully investigated and determined to be
“Unfounded.”
2.
Res
Judicata
55. Res judicata also precludes relitigation
of the issue of whether Dr. Bennett spoke “unprofessionally” to Patient
S.
56. “Under res judicata, a final judgment by
a court of competent jurisdiction is conclusive upon the parties in a subsequent
litigation involving the same cause of action.” Cook v. Sullivan,
149 N.H. 774, 777 (2003).
57. Res judicata also applies to a decision
of an administrative agency “which is rendered in a judicial capacity and
resolves disputed issues properly before it which the parties have had an
adequate opportunity to litigate.” Morin v. J.H. Valliere, 113 N.H.
431, 434 (1973).
58. Importantly, res judicata has preclusive
effect upon the agency under circumstances such as those present here,
where: (1) a complainant such as “Patient S” makes a report to an
administrative agency such as HHS; and (2) HHS retains control of the
enforcement proceeding. Cook, 149 N.H. at 778 (“In
situations...where the victim of a statutory wrong complains to the appropriate
agency but is not given control over the enforcement proceeding, it is the
agency rather than the victim to whom the rules of res judicata apply.”)
(citing Restatement (Second) of Judgments §83 cmt. c (1982)) (emphasis
supplied).
59. The rules of res judicata as applied to
HHS prevent the Board from relitigating the “Patient S” complaint against Dr.
Bennett. First of all, HHS acted in a judicial capacity in adjudicating
the “Patient S” complaint. The agency assigned an investigator and
fact-finder to gather and evaluate all witness testimony in order to adjudicate
the factual issue of whether Dr. Bennett had made the alleged comments to
“Patient S.” Furthermore, the agency provided Dr. Bennett notice and an
opportunity to rebut the allegations against him.
60. In addition, HHS had an adequate
opportunity to litigate the “Patient S” complaint. The agency had
unfettered access to witnesses. Notably, no new witness has come forward
since 2002, nor has any witness who previously provided information to HHS
proffered any new evidence since the HHS investigation concluded in 2002.
If the witnesses had provided sufficient information during the 2002
investigation to substantiate the “Patient S” allegations, HHS could have
initiated disciplinary proceedings against Dr. Bennett through its Board of
Medicine, or HHS could have referred Dr. Bennett to the office of the county
attorney for possible criminal prosecution pursuant to RSA 161-F:51, II.
HHS did neither, because HHS determined the complaint to be “Unfounded,” or
lacking substantiation.
61. The HHS Order finding the Complaint to
be “Unfounded” resolved the factual issue at hand, finding no evidence to
substantiate that Dr. Bennett spoke as “Patient S”
alleged.
62. The rules of res judicata therefore bar
the Board as an HHS-affiliated agency from relitigating the “Patient S”
complaint because the complaint was reviewed in a judicial capacity and was
resolved, after HHS had a full opportunity to litigate
it.
63. Moreover, the Board’s pursuit of
disciplinary proceedings against Dr. Bennett relative to a complaint that the
Board’s parent agency already determined to be “Unfounded” constitutes bad
faith, entitling Dr. Bennett to reasonable attorneys’
fees.
VIII. Prayer For
Injunctive Relief To Compel The Board To Honor Its Statutory Obligations And Dr.
Bennett’s Due Process Rights Of
Confrontation
64. Should the Court somehow decide to allow
disciplinary proceedings against Dr. Bennett to proceed at the Board of
Medicine, the Court should nonetheless issue orders compelling the Board to
abide by its statutory obligations, compelling the Board to honor Dr. Bennett’s
due process rights of confrontation, and vacating all orders issued by the Board
(or certain members thereof) in violation of statute or Dr. Bennett’s due
process rights.
65. Specifically, the Court should vacate
all actions purportedly taken by the Board without Commissioner Stephen or the
State Medical Director, and the Court should require the Board to involve
Commissioner Stephen or the State Medical Director in all future decisions
concerning Dr. Bennett, consistent with the provisions of RSA 329:4, I,
mandating that “[t]he commissioner or the medical director of the department of
health and human services shall serve as a voting member of the
board.”
66. Furthermore, the Court should require
the Board to have a quorum in order to take any action on Dr. Bennett’s matter
and should vacate all actions taken by Board members without a quorum. The
Court should order that five (5) Board members are necessary for a quorum, given
that the Board is made up of nine (9) members, under RSA 329:2,
I.
67. The Court should also order the Board to
allow Dr. Bennett to depose his accusers. Dr. Bennett should not have to
rely on information provided by the Board to learn what his accusers will
say. In order to prepare properly for the hearing, Dr. Bennett should be
afforded the right to depose “Patient S” and “Patient
A.”
68. Finally, the Court should order that all
witnesses who testify at any Board of Medicine hearing must disclose their names
and addresses. This is the New Hampshire Board of Medicine, not the “Star
Chamber.” Witnesses should not be allowed to besmirch Dr. Bennett’s good
name and professional reputation from behind a veil of anonymity. Indeed,
in order to cross-examine witnesses effectively, Dr. Bennett must know who they
are.
WHEREFORE, the petitioner Dr. Terry Bennett respectfully prays this Honorable
Court:
A. Find that the Board’s disciplinary
proceedings against Dr. Bennett relative to the “Patient A” complaint violate
Dr. Bennett’s rights under the State and Federal Constitutions to freedom of
speech and due process;
B. Enjoin the Board from further
disciplinary proceedings against Dr. Bennett in connection with the “Patient A”
complaint;
C. Find that the Board’s disciplinary
proceedings against Dr. Bennett relative to the 2001 “Patient S” complaint are
barred by the doctrines of collateral estoppel and res
judicata;
D. Enjoin the Board from further
disciplinary proceedings against Dr. Bennett in connection with the “Patient S”
complaint;
E. Order the Board to dismiss
the
F. In the event the Court denies
the relief set forth above and permits a hearing to go forward on complaints by
either “Patient A” or “Patient S,” require the following after a hearing before
this Court:
1. All witnesses and
complainants must give their names and
addresses;
2. Depositions of “Patient A”
and “Patient S” not exceeding one hour in length are to be permitted to properly
permit Dr. Bennett to cross-examine them at the
hearing;
3.
Require live testimony rather than hearsay if a witness is subject to subpoena
within the State of New Hampshire to properly protect the property interest of
Dr. Bennett in his license to earn a living and care for his patients;
and
4.
Order the Board to grant subpoenas to those witnesses, if any, whom Dr. Bennett
needs to summon to defend himself.
G. AND ON A TEMPORARY BASIS stay all
activity in the matter at the Board of Medicine until further order of this
Court. See Thompson v.
NH Board of Medicine, 143 N.H. 107
(1998).
H.
Award the petitioner his reasonable attorneys’ fees;
and
I. Grant such other and
further relief as is just and
equitable.
Respectfully submitted:
Terry M.
Bennett, M.D.
By his
attorneys,
DOUGLAS,
LEONARD & GARVEY, P.C.
Dated: March ____,
2006
By:
__________________________________________
Charles
G. Douglas, III
Benjamin
T. King
603-224-1988
CERTIFICATE OF
SERVICE
I hereby certify that copies of the within Motion for Injunctive Relief were
mailed, 1st class mail, this date to Senior Assistant Attorney
General, Elyse S. Alkalay, Esquire, Counsel to the Board, New Hampshire
Department of Justice, 33 Capitol Street, Concord, NH 03301; and to Catherine L.
Bernard, Esquire, Hearing Counsel, New Hampshire Department of Justice, 33
Capitol Street, Concord, NH 03301, and that a courtesy copy was mailed,
1st class mail, to Clerk Penny Taylor at the Board of
Medicine.
__________________________________________
Benjamin T. King