Martinez-Ferrate v. Department of Commerce, Division of Occupational & Professional Licensing

2016 UT App 176THE UTAH COURT OF APPEALS
RODOLFO MARTINEZ-FERRATE,
Petitioner,
v.
DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND
PROFESSIONAL LICENSING,
Respondent.
Opinion
No. 20150062-CA
Filed August 18, 2016
Original Proceeding in this Court
Harold L. Reiser, Bradley Strassberg, Adam H.
Reiser, and Kimberley L. Hansen, Attorneys
for Petitioner
Sean D. Reyes, Brent A. Burnett, Nancy L. Kemp, and
Laurie L. Noda, Attorneys for Respondent
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
CHRISTIANSEN, Judge:
¶1 Dr. Rodolfo Martinez-Ferrate challenges the findings of
fact, conclusions of law, and order entered by the Division of
Occupational and Professional Licensing (DOPL) as amended
and adopted by the Utah Department of Commerce (the
Amended Order). The Amended Order issued a sanction of
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Martinez-Ferrate v. Department of Commerce
probation against Dr. Ferrate’s2 licenses to practice as a physician
and surgeon and to administer and prescribe controlled
substances.3 We do not disturb the Amended Order.
BACKGROUND
¶2 The Utah Physicians Licensing Board (the Board), under
the auspices of DOPL, entered findings of fact that were
amended and adopted by the Department of Commerce (the
Department). We recite the facts as adopted.
¶3 Dr. Ferrate operated a small, independent family practice
with an emphasis on treating sleep disorders. On occasion, Dr.
Ferrate used infrared therapy to promote cell regeneration and
encourage overall healing. Dr. Ferrate administered this therapy
using an infrared device he had received from an acquaintance.
The device was not tested or approved by any regulatory agency
or industry body for use or sale within the United States;
however, the record is insufficient to establish whether any
regulations required such testing and approval.
¶4 Dr. Ferrate allowed Cory Bradshaw access to his clinic
and to his patients. Bradshaw was not employed by Dr. Ferrate,
possessed no relevant licenses, and had received no formal
2. The record and briefing on appeal consistently refer to ‚Dr.
Ferrate‛ and we follow their lead.
3. Dr. Ferrate has since satisfied the conditions of the Amended
Order’s probation and his licenses have been reinstated as of
January 12, 2016. Dr. Ferrate explains that reinstatement does not
moot his challenge seeking vacatur of the findings of fact and
conclusions of law in the Amended Order due to collateral
consequences. The Department of Commerce does not take issue
with this explanation.
20150062-CA 2 2016 UT App 176Martinez-Ferrate v. Department of Commerce
medical training in nutrition. Despite being aware of these
shortcomings, Dr. Ferrate considered Bradshaw a nutrition
expert and introduced her to his patients as such. Dr. Ferrate
understood and endorsed Bradshaw’s approach to natural
healing, which generally advocated a diet of raw food,
fermented food, and so-called ‚live food.‛ Dr. Ferrate allowed
Bradshaw to access his electronic record-keeping system and to
enter notes into patient charts; there was no way to clearly
distinguish her notes from his. Bradshaw had some general
experience with infrared devices but had not received any
training from Dr. Ferrate relating to the infrared device used in
his clinic.
¶5 On June 22, 2012, Patient Doe visited Dr. Ferrate for an
initial consultation regarding neuropathy of her feet. Dr. Ferrate
did not yet have Patient Doe’s medical records and did not
conduct an examination to determine the nature and extent of
the neuropathy. At the consultation, Dr. Ferrate discussed using
infrared therapy to treat Patient Doe’s neuropathy.
¶6 On June 26, 2012, Patient Doe returned to the clinic to
begin infrared therapy on her feet. While Bradshaw was in the
room, Dr. Ferrate discussed using the infrared device over
Patient Doe’s abdomen to target her liver area for general health.
Patient Doe understood that the device would be used to target
her liver. Dr. Ferrate positioned the infrared device over Patient
Doe’s feet and then left the room, leaving Patient Doe with
Bradshaw.
¶7 Bradshaw then repositioned the infrared device over
Patient Doe’s abdomen. Although the device was not designed
to be used through clothing, Bradshaw did not ask or instruct
Patient Doe to remove her clothing. Bradshaw activated the
device, causing Patient Doe to express her discomfort. Patient
Doe did not ask to see Dr. Ferrate or to pause the treatment.
20150062-CA 3 2016 UT App 176Martinez-Ferrate v. Department of Commerce
When Dr. Ferrate returned to the room, he stopped the
treatment. Patient Doe then left the clinic.
¶8 Later that day, Patient Doe called the clinic to inform Dr.
Ferrate that her abdomen appeared to have been burned. Dr.
Ferrate asked her to return to the clinic, where he prescribed
silver sulfadiazine to treat the burns. Patient Doe was eventually
treated by a different physician for what turned out to be
second-degree burns to her abdomen, and now has residual
scarring.
¶9 The clinic’s notes regarding this incident included an
entry by Bradshaw, claiming that she asked Patient Doe to
remove clothing from her abdominal area and that Patient Doe
refused. The Board determined that this statement was false. The
notes also included an entry by Dr. Ferrate stating that he had
explained to Patient Doe the risk of the infrared device
generating heat. The Board determined that this statement was
also false. Finally, Dr. Ferrate also entered a note that ‚*n+utrition
staff decided to initiate treatment in abd[ominal] area on her
own with clothing not following our clinic protocol.‛
¶10 Dr. Ferrate acknowledged liability for Patient Doe’s injury
and financially compensated her for it. He has stopped using the
infrared device and no longer allows Bradshaw to assist him
with patient counseling or treatment.
¶11 The Utah Physicians Licensing Board convened to review
this incident and to determine what action to take. The Board
noted that, under Utah Administrative Code R156-67-102(2), an
‚alternate medical practice‛ is one that is not generally
recognized as standard in the practice of medicine. The Board
further noted that a physician may employ alternate medical
practices so long as (1) the alternate medical practices are not
shown by generally accepted medical evidence to present a
greater risk to the patient than the standard treatments and
(2) current generally accepted documentation demonstrates that
20150062-CA 4 2016 UT App 176Martinez-Ferrate v. Department of Commerce
the alternate medical practice has a reasonable potential to be of
benefit.
¶12 The Board found that the ‚use of infrared therapy to treat
neuropathy of the feet constitutes alternate medical practice
because it is not generally recognized as the standard of
treatment.‛ Because ‚heat therapies should not pose any
meaningful risk to the health, safety, or welfare of a patient,‛
‚infrared therapy, when used properly and carefully, is an
acceptable alternate medical practice for treating neuropathy.‛
However, the ‚use of infrared therapy to promote overall
general health by exposure to a large area of the body,‛ such as
‚the abdominal area over or near the liver,‛ ‚does not qualify as
an acceptable alternate medical practice for the promotion of
general good health.‛ The Board explained, ‚Where *Dr. Ferrate+
has not specified a clear treatment objective for his use of
infrared therapy over an area that is not affected by injury or
disease, it is difficult for the Board to specify the standard of
treatment that would apply. However, overall good health is
generally promoted through diet and exercise. [Dr. Ferrate] has
provided no literature to establish that infrared therapy replaces
or complements a healthy lifestyle, and the Board is aware of
none.‛
¶13 The Board concluded that Dr. Ferrate’s use of infrared
therapy for the promotion of general health violated Utah
Administrative Code R156-67-502(14), which prohibits the use of
an alternate medical practice absent generally accepted
documentation establishing that the practice has a reasonable
potential to be of benefit, and therefore that it amounted to
unprofessional conduct pursuant to Utah Code section 58-1-
501(2)(a).4 The Board also concluded that Dr. Ferrate had
4. ‚‘Unprofessional conduct’ means conduct, by a licensee or
applicant, that is defined as unprofessional conduct under this
(continued…)
20150062-CA 5 2016 UT App 176Martinez-Ferrate v. Department of Commerce
violated section 501(2)(a) a second time by failing to set clear
limits and boundaries for Bradshaw and to ensure her
compliance therewith. The Board further concluded that Dr.
Ferrate had violated section 501(2)(a) a third time by failing to
provide Patient Doe with a written disclosure as to the potential
risks and benefits of the alternate medical procedure, as required
by Utah Administrative Code R156-67-603(1)(c).
¶14 The Board next concluded that Dr. Ferrate had committed
gross negligence pursuant to section 501(2)(g). Specifically, the
Board explained that Dr. Ferrate had chosen to employ an
alternative medical practice on Patient Doe’s abdomen ‚for no
documented or documentable medical reason and without
proper disclosure to, or prior education of, the patient.‛ 5 The
Board noted that Dr. Ferrate had decided on this course of action
even though he had not physically examined Patient Doe or
reviewed her medical records to determine whether the use of
heat would pose unusual risks in her specific circumstances. The
Board also explained that Dr. Ferrate had ‚chose*n+ to leave
Patient Doe under the infrared heat device while attended only
by Ms. Bradshaw,‛ who Dr. Ferrate had reason to know ‚did not
acknowledge her own limitations and could not be trusted to
confine her activities accordingly.‛ The Board further explained
(…continued)
title or under any rule adopted under this title and includes:
(a) violating, or aiding or abetting any other person to violate,
any statute, rule, or order regulating an occupation or profession
under this title*.+‛ Utah Code Ann. § 58-1-501(2) (LexisNexis
2012).
5. While Dr. Ferrate did not initiate such treatment himself, he
discussed using the infrared device on Patient Doe’s liver and,
by the time Dr. Ferrate left the room, Patient Doe understood
that the device would be used to treat her liver at some point.
20150062-CA 6 2016 UT App 176Martinez-Ferrate v. Department of Commerce
that Dr. Ferrate chose to employ a ‚largely undocumented and
untested‛ infrared device, without guidance from the
manufacturer. The Board noted that Dr. Ferrate’s negligence was
‚further demonstrated by his failure to accurately document his
treatment of Patient Doe‛; his decision to allow Bradshaw, ‚a
non-employee with no medical training,‛ to write and modify
patient records; and his failure to properly use record-keeping
software, with the result that ‚the dates noted in Patient Doe’s
treatment chart are incorrect and misleading.‛
¶15 Because Dr. Ferrate acknowledged liability for Patient
Doe’s injury, took preventative measures such as ending his
association with Bradshaw and returning the infrared device,
and had no previous similar incidents, the Board recommended
that DOPL place Dr. Ferrate’s licenses on probation rather than
revoking or suspending them. DOPL did so, and the executive
director of the Department affirmed that recommendation in the
Amended Order.
ISSUES AND STANDARDS OF REVIEW
¶16 Dr. Ferrate challenges the Board’s order on a number of
grounds. First, he contends that he was denied due process
when a recording of Bradshaw’s unsworn statements was
played at the hearing without Bradshaw being present to be
cross-examined. Second, he contends that the Board improperly
concluded that he was grossly negligent for using the infrared
device over Patient Doe’s abdomen when the Board also
recognized that it was Bradshaw who repositioned the device
from Patient Doe’s feet to her abdomen. Third, Dr. Ferrate
contends that the Amended Order’s conclusions of law are not
‚supported in light of the whole record and Utah law.‛ Fourth,
Dr. Ferrate contends that the Board improperly applied Utah
law in concluding that he was grossly negligent. Fifth, Dr.
Ferrate contends that the Board misinterpreted a portion of the
American Medical Association (the AMA) Code of Medical
20150062-CA 7 2016 UT App 176Martinez-Ferrate v. Department of Commerce
Ethics. Sixth, Dr. Ferrate contends that the Amended Order ‚is
not supported by substantial evidence or consistent with
applicable law when viewed in light of the whole record before
*DOPL+.‛ Seventh, Dr. Ferrate contends that the Board’s order
‚is an abuse of discretion and is contrary to and in violation of
the rules, practices and procedure of *DOPL+.‛
¶17 It is not the role of a reviewing court to second-guess an
agency’s decision; rather, we owe substantial deference to the
agency’s decision so long as the agency applied the correct legal
standard to facts supported by substantial record evidence. See
Utah Code Ann. § 63G-4-403(4) (LexisNexis 2014) (restricting a
reviewing court’s ability to grant relief). We review an agency’s
application of a given legal standard to a unique set of facts with
substantial deference. Decker Lake Ventures, LLC v. Utah State Tax
Comm’n, 2015 UT 66, ¶ 15, 356 P.3d 1243. We review the agency’s
interpretation of a legal standard for correctness. See Murray v.
Labor Comm’n, 2013 UT 38, ¶¶ 21–22, 308 P.3d 461. And we
review the agency’s findings of fact only to ascertain whether
they are supported by ‚substantial evidence when viewed in
light of the whole record before the court.‛ See Utah Code Ann.
§ 63G-4-403(4)(g).
ANALYSIS6
¶18 Rule 24 of the Utah Rules of Appellate Procedure governs
the content and form of briefs filed in this court. Rule 24(a)(5)
6. Although we occasionally refer to the Board’s findings and
conclusions to match the parties’ briefing and for the reader’s
convenience, we clarify that we mean the Board’s findings and
conclusions as adopted by the Department. See FirstDigital
Telecom, LLC v. Procurement Policy Board, 2015 UT App 47, ¶ 10
n.1, 345 P.3d 767 (explaining that this court’s review is limited to
the final agency action).
20150062-CA 8 2016 UT App 176Martinez-Ferrate v. Department of Commerce
requires an opening brief to contain ‚*a+ statement of the issues
presented for review, including for each issue: the standard of
appellate review with supporting authority.‛ See Utah R. App. P.
24(a)(5). Dr. Ferrate has failed to identify the standard of review
applicable to each of the issues presented for review.
Furthermore, ‚*i+ssues not raised in proceedings before
administrative agencies are not subject to judicial review except
under exceptional circumstances.‛ Speirs v. Southern Utah Univ.,
2002 UT App 389, ¶ 12 n.5, 60 P.3d 42; see also Brinkerhoff v.
Schwendiman, 790 P.2d 587, 589 (Utah Ct. App. 1990) (noting that,
in the context of judicial review of an administrative hearing, a
party must raise an objection in the earlier proceeding to avoid
waiving its right to litigate the issue in subsequent proceedings).
Because Dr. Ferrate has failed to identify the standard of review
for each issue and has failed to provide citation to the record
demonstrating that the issues he raises were preserved for
judicial review, we reject all of his contentions. See Sivulich v.
Department of Workforce Servs., 2015 UT App 101, ¶ 5, 348 P.3d
748 (observing that when the petition fails to cite the record to
identify where the issues presented for judicial review were
preserved, ‚the task of combing through the record is
improperly left to this court‛). However, Dr. Ferrate’s
contentions also fail on their merits, as we explain below.
¶19 The Department concedes that three of the issues were at
least partially preserved for judicial review; we commend the
Department’s counsel for their candor and thoroughness in
partially carrying Dr. Ferrate’s burden on appeal. These issues
are whether the Department appropriately concluded (1) that Dr.
Ferrate used the infrared device in a grossly negligent manner
despite the Department finding that the device was repositioned
and activated by Bradshaw, (2) that Dr. Ferrate violated his
ethical duties under the AMA’s Code of Medical Ethics by
failing to properly supervise Bradshaw, and (3) that Dr. Ferrate
committed gross negligence despite the Department failing to
find that Dr. Ferrate was indifferent to Patient Doe’s well-being.
20150062-CA 9 2016 UT App 176Martinez-Ferrate v. Department of Commerce
We also address Dr. Ferrate’s contention that the introduction of
Bradshaw’s previously recorded statements violated his due
process rights.
I. Due Process
¶20 Dr. Ferrate first contends that the Department violated his
due process rights when it adopted the Board’s findings and
conclusions despite the Board having heard only recordings of
Bradshaw and not live testimony. Dr. Ferrate argues that the
introduction of Bradshaw’s statements violated Utah Code
section 63G-4-206, which requires the presiding officer at a
formal adjudicative proceeding to ‚afford to all parties the
opportunity to . . . conduct cross-examination.‛ See Utah Code
Ann. § 63G-4-206(1)(d) (LexisNexis 2014). The Department
responds that this issue is moot because none of the findings or
conclusions of the Amended Order were based on evidence from
Bradshaw’s recorded statements.
¶21 The Department’s Amended Order acknowledged that ‚it
was improper to admit the recording of Ms. Bradshaw’s
interview . . . as [Dr. Ferrate] had no opportunity to cross-
examine Ms. Bradshaw.‛ The Department nonetheless ruled that
Dr. Ferrate had failed to establish prejudice because ‚*a+ review
of the record and *DOPL’s order+ indicates that *DOPL’s+
findings and conclusions were based on evidence independent
of Cory Bradshaw’s interview.‛ The Department then set forth
the evidence presented at the hearing and noted the absence of
any finding based on Bradshaw’s claims that she was an
employee or that she had been instructed by Dr. Ferrate to
reposition the infrared device. As a result, the Department
adopted the Board’s findings, with one exception not relevant
here.
¶22 Dr. Ferrate’s opening brief makes no effort to explain how
the Department’s no-prejudice conclusion was erroneous.
Rather, he simply asserts in conclusory fashion that because the
20150062-CA 10 2016 UT App 176Martinez-Ferrate v. Department of Commerce
Board erred by admitting Bradshaw’s statements, he was
prejudiced. In his reply brief, Dr. Ferrate asserts, ‚Simply stating
that [the Department] ruled it was not prejudicial does not make
the ruling correct. The very point of an appeal is to test the
correctness of the lower court’s ruling.‛ We agree with Dr.
Ferrate on this point; however, he bears the burden of proving
prejudice in order to demonstrate error in the Department’s no-
prejudice conclusion. See Sivulich v. Department of Workforce
Servs., 2015 UT App 101, ¶ 5, 348 P.3d 748 (explaining that a
reviewing court ‚is not a depository in which a party may dump
the burden of argument and research‛ (brackets, citation, and
internal quotation marks omitted)).
¶23 Dr. Ferrate’s reply brief first argues that prejudice is
automatic when the petitioner is unable to cross-examine a
witness in an administrative hearing. But the cases he relies on
state only that prejudice arose under the specific circumstances
of those cases. See, e.g., D.B. v. Department of Business Regulation,
779 P.2d 1145, 1149 (Utah Ct. App. 1989) (holding that, where
D.B.’s professional license was revoked after allegations of abuse
and the administrative law judge did not offer D.B. the
opportunity to cross-examine any of the three witnesses present
at the hearing, ‚the hearing given to D.B. lacked the due process
of law required by law, was unfair, and constitute[d] ‘substantial
prejudice’ to him‛). Dr. Ferrate next asserts, ‚The fact that other
evidence may have been considered by the Board and [the
Department] in rendering their rulings does not diminish the
prejudice infused by Ms. Bradshaw’s improper testimony.‛ But
Dr. Ferrate provides no authority for this assertion and has not
proven that any actual prejudice existed in the first place,
especially where Bradshaw did not appear at the hearing and
DOPL’s findings were not based on her recorded interview.
¶24 Dr. Ferrate also argues that ‚the Board and [the
Department’s+ conclusion that Dr. Ferrate partnered with Ms.
Bradshaw was colored by Ms. Bradshaw’s own testimony
20150062-CA 11 2016 UT App 176Martinez-Ferrate v. Department of Commerce
regarding her relationship with Dr. Ferrate.‛ It is true that the
Board found that Dr. Ferrate ‚partnered with Cory Bradshaw.‛
However, the same finding explained that Bradshaw was not
employed by Dr. Ferrate’s clinic or otherwise paid for her work.
When read in context, it is clear that the Board was not imputing
any legal partnership between the two individuals; instead, the
Board used the word ‚partner‛ to describe Bradshaw’s non-
employee role in the clinic. In any event, even if the Board had
improperly imputed a legal partnership between Dr. Ferrate and
Bradshaw, that imputation did not prejudice Dr. Ferrate. The
Board did not conclude that Dr. Ferrate was grossly negligent
due to any legal partnership with Bradshaw, but rather because
he allowed Bradshaw largely unfettered access to his clinic, his
patients, and his patient records. Similarly, he did not suffer
prejudice from a possible inference that Bradshaw claimed Dr.
Ferrate instructed her to place the infrared device on Patient
Doe’s abdomen, because the Board did not find that he had done
so. Moreover, the Board’s gross-negligence conclusion was not
based on what it determined Dr. Ferrate had instructed
Bradshaw to do; that conclusion was based on Dr. Ferrate’s lack
of oversight of Bradshaw and lack of instruction to her.
¶25 Dr. Ferrate has therefore failed to carry his burden of
demonstrating error in the Department’s conclusion that he was
not prejudiced by the Board’s erroneous admission of
Bradshaw’s recorded statements.
II. Findings to Support the Conclusion of Gross Negligence
¶26 Dr. Ferrate contends that the Board’s statements
regarding his indifference and intentions do not adequately
support its conclusion that he was grossly negligent.
¶27 The core of this claim is that the Department ‚erroneously
interpreted or applied the law‛ to the facts it found. See Utah
Code Ann. § 63G-4-403(4)(d) (LexisNexis 2014). ‚Determining
whether a professional has practiced incompetently‛ or with
20150062-CA 12 2016 UT App 176Martinez-Ferrate v. Department of Commerce
gross negligence ‚is an intensely fact-specific inquiry,‛ Taylor v.
Department of Commerce, 952 P.2d 1090, 1092 (Utah Ct. App.
1998), and we therefore review for an abuse of discretion the
Department’s application of the gross-negligence standard to the
facts it found, Cook v. Department of Commerce, 2015 UT App 64,
¶ 20, 347 P.3d 5.
¶28 Dr. Ferrate notes that Utah courts have defined gross
negligence as ‚the failure to observe even slight care; it is
carelessness or recklessness to a degree that shows utter
indifference to the consequences that may result.‛ See Daniels v.
Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 43, 221 P.3d 256(citation and internal quotation marks omitted). He asserts that
gross negligence must be proven by clear and convincing
evidence because ‚‘[w]hile all gross negligence claimants can
automatically claim recklessness, only some may be able to show
that a tortfeasor actually knew of the danger of his or her action
or inaction.’‛ (Quoting Daniels, 2009 UT 66, ¶ 44.) On this basis,
Dr. Ferrate argues that the Board’s statements that it ‚does not
find or imply that *Dr. Ferrate+ was indifferent to Patient Doe’s
well being‛ and that ‚[t]he Board accepts that [Dr. Ferrate] had
good intentions,‛ are incompatible with the conclusion that he
was grossly negligent.7
¶29 However, the quoted section of Daniels addressed the
circumstances under which a physician’s gross negligence could
give rise to punitive damages. See Daniels, 2009 UT 66, ¶ 41
(explaining that Utah Code section 78B-8-201 ‚allows punitive
damages to be awarded only if . . . it is established by clear and
convincing evidence that the acts or omissions of the tortfeasor
are the result of willful and malicious or intentionally fraudulent
7. Dr. Ferrate ignores the remainder of the paragraph, in which
the Board stated that ‚*Dr. Ferrate+ was indifferent to the
potential negative consequences of his decisions and actions.‛
20150062-CA 13 2016 UT App 176Martinez-Ferrate v. Department of Commerce
conduct, or conduct that manifests a knowing and reckless
indifference toward, and a disregard of, the rights of others‛
(citation and internal quotation marks omitted) (ellipsis in
original)). The correct standard for reviewing an agency’s factual
finding is whether the finding is ‚supported by substantial
evidence when viewed in light of the whole record before the
court.‛ See Utah Code Ann. § 63G-4-403(4)(g).
¶30 Applying this standard to the Amended Order, we see no
irreconcilable conflict between the Board’s statements and its
gross-negligence conclusion. Substantial evidence supporting
the Board’s conclusion included Dr. Ferrate’s decision to treat
Patient Doe’s general health and neuropathy of her feet with
infrared treatment without first examining her or her medical
records.8 It also included the false statements entered into Patient
Doe’s medical record and Dr. Ferrate’s failure to provide Patient
Doe with any written documentation regarding infrared
therapy. Moreover, the Board’s statements that Dr. Ferrate had
good intentions and that the Board did not find or imply that Dr.
Ferrate was indifferent to Patient Doe’s well-being shed no light
on whether he acted with gross negligence. Indeed, physicians
can be concerned with a patient’s overall well-being yet still be
grossly negligent in the application of specific treatments or
procedures to that patient.
8. Dr. Ferrate argues that these failures were not properly before
the Board because they were not pleaded in the petition.
However, as the Department noted, the petition alleged that Dr.
Ferrate, in an interview with DOPL’s investigator, ‚stated that
he did not do any testing of Patient Doe‛ and ‚said he did not
review her medical records,‛ relying instead on her verbal
report. We conclude that the failures to examine and to review
medical records were properly before the Board.
20150062-CA 14 2016 UT App 176Martinez-Ferrate v. Department of Commerce
¶31 Dr. Ferrate also states that ‚‘negligence, by definition,
consists of conduct where the tortfeasor does not intend to cause
harm.’‛ (Quoting Daniels, 2009 UT 66, ¶ 41.) He notes that the
Board ‚accept*ed+ and credit*ed+‛ Patient Doe’s testimony that
she ‚accept*ed+ the circumstances as unintentional and
accidental.‛ Dr. Ferrate then asserts that because the Board
accepted Patient Doe’s statement that she ‚felt that Dr. Ferrate
had not done it on purpose,‛ the Board could not have properly
found him negligent. But Patient Doe’s belief, whether accurate
or not, that Dr. Ferrate had not acted intentionally is perfectly
consistent with negligence, i.e., ‚conduct where the tortfeasor
does not intend to cause harm.‛ See Daniels, 2009 UT 66, ¶ 41.
Accordingly, we reject this argument.
III. Paragraph Thirty-Five
¶32 Dr. Ferrate next contends that the Board’s statements in
paragraph thirty-five of the Amended Order were not supported
by substantial evidence. He takes issue with the Board’s
statement that ‚Ms. Bradshaw had no formal medical training
but, to all appearances, was nevertheless confident enough in
her own abilities and sensibilities that she independently
counseled patients in a manner that might induce them to
discontinue medications and for[]go treatment plans prescribed
for them by licensed physicians.‛ He argues that the finding that
Bradshaw advocated a diet of raw food, live food, and
fermented food, ‚which she maintained would allow many
patients to transition off medication and heal naturally,‛ was
insufficient to support the Board’s statement.
¶33 Essentially, Dr. Ferrate asserts that it was inappropriate
for the Board to conclude that he should have anticipated that
Bradshaw would take ‚Patient Doe’s treatment into her own
hands.‛ But this presupposes that the Board’s conclusion was
based solely on the single finding recited by Dr. Ferrate. As we
have explained, we are required to consider whether an agency’s
20150062-CA 15 2016 UT App 176Martinez-Ferrate v. Department of Commerce
finding is ‚supported by substantial evidence when viewed in
light of the whole record before the court.‛ See Utah Code Ann.
§ 63G-4-403(4)(g). In addition to the finding he identifies, the
evidence before the Board also included Dr. Ferrate’s admissions
that he knew Bradshaw personally owned two infrared
machines, had nine years of experience with them, and
professed to be comfortable using them. When combined with
the substantial degree of freedom Dr. Ferrate allowed Bradshaw,
including entering her own patient notes and counseling
patients at least about their diets, we cannot say that the
agency’s finding was not supported by substantial evidence.
IV. Negligent Supervision
¶34 Dr. Ferrate also contends that the Board erred in
determining that his supervision of Bradshaw was negligent. He
compares Bradshaw’s presence to that of prospective medical
students.9 Dr. Ferrate argues that prospective students often
shadow practicing physicians and that leaving them with
patients is not negligent. But he does not cite any authority or
record support for these assertions. Moreover, Dr. Ferrate does
not claim that prospective medical students are regularly given
free access to enter patient records, that they are afforded time
alone with patients to discuss treatments, or that supervising
physicians do not admonish them to avoid independently
counseling or treating patients. As a result, Dr. Ferrate has not
shown that the Board’s application of the negligence standard to
the unique facts of his case constituted an abuse of discretion. See
Decker Lake Ventures, LLC v. Utah State Tax Comm’n, 2015 UT 66,
¶ 12, 356 P.3d 1234.
9. Nothing in the record suggests, and Dr. Ferrate does not
claim, that Bradshaw was a prospective medical student.
20150062-CA 16 2016 UT App 176Martinez-Ferrate v. Department of Commerce
¶35 Dr. Ferrate next raises several arguments to the effect that
he was not supervising Bradshaw. Specifically, Dr. Ferrate
challenges the Board’s finding that he partnered with Bradshaw.
However, as discussed above, it is clear from the record that the
Board was not imputing any sort of legal partnership to Dr.
Ferrate and Bradshaw but rather attempting to describe Dr.
Ferrate’s decision to allow Bradshaw to function without pay in
his clinic with access to his patients and his patient records.
Because the Board did not find a legal partnership existed, Dr.
Ferrate’s challenge fails.
¶36 Dr. Ferrate argues that Bradshaw was not employed by
his clinic and was acting outside his control and supervision. But
Dr. Ferrate allowed Bradshaw to function in his clinic, counsel
his patients, and make entries in his patient records. If she were
not actually supervised by Dr. Ferrate, that would be prima facie
evidence of negligent supervision given the role he allowed her
to assume. For the same reason, Dr. Ferrate’s arguments
regarding the retained-control doctrine also fail.
¶37 In any event, Dr. Ferrate’s responsibilities did not arise
from any employment of Bradshaw. Rather, section 58-67-502 of
the Utah Code required him to ensure that Bradshaw was
properly trained before allowing her to function within his
clinic. Section 502 provides that a licensed physician’s conduct is
unprofessional when, among other things, he or she uses or
employs ‚the services of any individual to assist a licensee in
any manner not in accordance with the generally recognized
practices, standards, or ethics of the profession, state law, or
division rule.‛ Utah Code Ann. § 58-67-502(1)(a) (LexisNexis
2012). Utah Administrative Code R156-67-502(15) provides that
these standards incorporate ‚any provision of the *AMA’s+
‘Code of Medical Ethics.’‛ The AMA’s Code of Medical Ethics
includes Opinion 3.03, which provides that ‚*i+t is ethical for a
physician to work in consultation with . . . allied health
professionals, as long as they are appropriately trained and duly
20150062-CA 17 2016 UT App 176Martinez-Ferrate v. Department of Commerce
licensed to perform the activities being requested.‛ See
Opinion 3.03 – Allied Health Professionals, http://www.ama-
assn.org /ama/pub/physician-resources/medical-ethics/code-
medical-ethics/opinion303.page [https://perma.cc/6U4C-DB7H].
Dr. Ferrate did not ensure that Bradshaw was appropriately
trained, let alone licensed, before allowing her to ‚generally
participate as one of his health care team‛ and to access and
modify his patient records.
¶38 We readily conclude that the Board did not abuse its
discretion in determining that Dr. Ferrate negligently failed to
properly supervise his clinic. See Cook v. Department of Commerce,
2015 UT App 64, ¶ 20, 347 P.3d 5; Taylor v. Department of
Commerce, 952 P.2d 1090, 1092 (Utah Ct. App. 1998).
V. Gross Negligence in Treatment
¶39 Finally, Dr. Ferrate contends that the Board incorrectly
concluded that he was grossly negligent with respect to Patient
Doe’s treatment. Dr. Ferrate notes that the Board found that
Bradshaw had repositioned the infrared device over Patient
Doe’s abdomen, and asserts that he only discussed the
possibility of using the device on Patient Doe’s abdomen. He
argues that it was therefore inappropriate for the Board to
conclude that he was grossly negligent for treating Patient Doe’s
abdomen with the infrared device.
¶40 Dr. Ferrate misses the gravamen of the Board’s
conclusions. The Board concluded that he was grossly negligent
not for employing the infrared device himself but for allowing
Bradshaw the opportunity to do so despite the warning signs
discussed above, especially in light of the free run of the clinic he
had allowed her. In any event, Patient Doe testified that she
understood from Dr. Ferrate that the infrared device would be
used on her abdomen for general good health as well as on her
feet for neuropathy. The Board found that infrared therapy,
while an acceptable alternate medical practice to treat
20150062-CA 18 2016 UT App 176Martinez-Ferrate v. Department of Commerce
neuropathy of the feet, was not an acceptable alternate medical
practice to treat an uninjured and disease-free area simply to
promote general good health. The Board therefore concluded
that Dr. Ferrate’s plan to use infrared therapy on Patient Doe’s
abdomen to promote general good health amounted to
unprofessional conduct—regardless of whether Bradshaw
jumped the gun and began treating Patient Doe independently.
CONCLUSION
¶41 Dr. Ferrate has failed to demonstrate that any of his
contentions were preserved in the proceedings below;
accordingly, he has waived them. Moreover, those contentions
also fail on their merits.
¶42 For the foregoing reasons, we do not disturb the
Amended Order.
20150062-CA 19 2016 UT App 176