Rogers v. Composite State Board of Medical Examiners

Undercofler, Presiding Justice.

This case raises serious constitutional questions about the medical board’s subpoena power under the Fourth and Sixth Amendments to the United States Constitution. While the issues clearly merit addressing, we are unable to do so because they are now moot. This court, as a matter of policy, does not entertain moot cases. Eg.: Barr v. Jackson County, 238 Ga. 332 (232 SE2d 923) (1977)-,Nathan v. Self, 229 Ga. 622 (193 SE2d 824) (1972).

Dr. John Rogers refused to honor a subpoena of the Board of Medical Examiners seeking his records on five patients. The board did not pursue enforcement and later dropped the investigation. Meanwhile, Rogers sued the board to determine the names of the complainants against him and challenged the validity of the subpoena on the constitutional grounds. The trial court, in granting the board’s motion for summary judgment, denied relief. We affirm.

1. Dr. Rogers has no right of access to the board’s investigative file. Morton v. Skrine, 242 Ga. 844 (252 SE2d 408) (1979). The Sixth Amendment confrontation clause does not alter this fact. The investigation is closed; he has been entirely exonerated. There is no one to confront. Assuming without deciding that the right of confrontation may apply at some point in the board’s proceedings¹ (Code Ann. § 84-917), that right ended when the investigation was terminated. The right does not extend to collateral civil suits. For this purpose, usual investigation and discovery are appropriate. Compare Morton v. Gardner, 242 Ga. 852 (252 SE2d 413) (1979). By the same reasoning, Dr. Rogers has not been denied access to the courts. He is free to bring whatever action he desires.

Argued November 19, 1979 Decided February 5, 1980 Rehearing denied March 4, 1980. Nicholson, Meals & McLaughlin, Robert N. Meals, A. Lee Parks, Jr., for appellant. Arthur K. Bolton, Attorney General, John C. Jones, Assistant Attorney General, for appellees.

2. The constitutional challenge to the board’s subpoena power, Code Ann. § 84-916(d), is dismissed as moot. Barr v. Jackson County, supra.

Judgment affirmed.

Nichols, C.J., Hill, Bowles, and Marshall, JJ., concur. Jordan, J., and Judge Charles L. Weltner, dissent. Clarke, J., not participating.

1 "7re all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with witnesses against him .. .’’(Emphasis supplied.) Compare Hannah v. Larche, 363 U. S. 420 (1960), and Jenkins v. McKeithen, 395 U. S. 411 (1969). See Adkins v. Adkins, 242 Ga. 248 (248 SE2d 646) (1978).

1 Rogers v. Medical Assn. of Ga., 244 Ga. 151 (259 SE2d 85) (1979).