STATE OF NEW HAMPSHIRE

 

MERRIMACK, SS                                                                                          SUPERIOR COURT

 

Terry Bennett, M.D.

 

v.

 

New Hampshire Board of Medicine

 

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 New Hampshire since 1981.  Dr. Bennett practices family medicine at 151 South Main Street, Rochester, New Hampshire 03867.

            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 2 Industrial Park Drive, Suite 8, Concord, New Hampshire 03301.

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 Merrimack County.

IV.       Facts

            8.         On August 30, 2005, the Board issued a Notice of Hearing scheduling a hearing for December 7, 2005, to determine whether and to what extent disciplinary sanctions authorized by RSA 329:17, VII should be levied against Dr. Bennett.  Such prospective sanctions potentially include suspension and/or revocation of Dr. Bennett’s license to practice medicine.  The Board subsequently rescheduled the hearing for April 5, 2006, in order to delay deliberations on pretrial motions pending this Court’s ruling on the Board’s Motion for Reconsideration of the Court’s December 15, 2005, Order.  The Board has now postponed the adjudicatory hearing in light of this Motion, which asks this Court to enjoin the Board from conducting any further disciplinary proceedings against Dr. Bennett regarding the “Patient A” and “Patient S” complaints because the proceedings are unlawful.  

            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 July 29, 2002, HHS advised Dr. Bennett that it had completed its investigation and had found the complaint to be “Unfounded.”  Exhibit D.  HHS regulations state that “Unfounded” means that the reported allegations of abuse, neglect or exploitation were investigated and not substantiated.  He-E 701.53.

            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 June 28, 2004, by making the following alleged comments to an obese patient, “You need to lose weight.  Let’s face it if your husband were to die tomorrow who would want you.  Well, men might want you but not the types that you want to want you.  Might even be a black guy.”  This is the entirety of the second complaint.  There is no suggestion that Dr. Bennett provided the patient inappropriate medical treatment or that he gave her poor medical advice.  There is merely the allegation that Dr. Bennett made a comment that some people might find offensive.

            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 March 10, 2006, the Board also granted in part the State’s motion to allow “Patients A and S” to testify anonymously, without disclosing their names or any identifying information.  The Board also indicated receptiveness to the idea of allowing other witnesses to testify anonymously so that no one will know who they are.

            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 March 10, 2006, not only erred in substantive rulings, but the panel committed procedural errors as well.  RSA 329:4 provides that “the commissioner of the medical director of the department of health and human services shall serve as a voting member of the board.”  Emphasis supplied.  The Board of Medicine has ignored this statutory requirement in Dr. Bennett’s case.  Neither Commissioner John Stephen, nor the State Medical Director, has ever attended any Board hearing involving Dr. Bennett, much less voted on any motion filed in the matter.

            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 March 10, 2006, deliberative session proceeding in such an improper form, without a quorum and without Commissioner Stephen present.  The three Board members present overruled Dr. Bennett’s objections.

            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 New Hampshire from suppressing the free speech of citizens such as Dr. Bennett.

            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. Univ. of New Hampshire, 888 F.Supp. 293, 314, 332 (D.N.H. 1994) (holding that the University violated the plaintiff instructor’s constitutional free speech rights by suspending him for offensive classroom speech and ordering the University to reinstate the instructor to his position as a tenured professor).

            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. New York, 394 U.S. 576, 592 (1969) (“It is firmly settled that...the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”).  Silva v. Univ. of New Hampshire, 888 F.Supp. 293, 314 (D.N.H. 1994) (holding that “[s]peech does not lose its protected character...simply because it may embarrass others” and that “the fact that society may find speech offensive is not a sufficient reason for suppressing it.”) (quotations omitted).

            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 U.S. 377, 382 (1992)).  As the United States Supreme Court recently admonished, “[i]f the First Amendment means anything, it means that regulating speech must be a last—not first—resort.”  Thompson v. Western States Med. Ctr., 122 S.Ct. 1497, 1507 (2002).  Accordingly, a governmental policy seeking to impose content-based restrictions on speech can only “survive First Amendment scrutiny” if the policy has “narrow specificity.”  Conant, 309 F.3d at 639; NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”).

            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 New Hampshire generally.  If doctors must fear losing their licenses because of the content of their speech to their patients, such fear will surely have a deleterious chilling effect on valuable blunt and candid communications between doctor and patient.  See State v. Allard, 148 N.H. 702, 706 (2002).

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.”  Id.  Certainly, it is just as true that, if doctors must fear of being prosecuted for “unprofessional” speech, similar undesirable consequences will ensue.

            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 U.S. 703, 732 (2000)).

            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” speechSee 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.  Id.

            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 July 29, 2002, judgment that the complaint was “Unfounded.”

            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 August 30, 2005, Notice of Hearing with prejudice;

            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

6 Loudon Road, Suite 502

Concord, NH 03301

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

 

Rochester NH