Reffat K. Abofreka, M.D. v. Virginia Board of Medicine

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Beales
Argued at Alexandria, Virginia
REFFAT K. ABOFREKA, M.D.
MEMORANDUM OPINION* BY
v. Record No. 2793-06-4 JUDGE JAMES W. BENTON, JR.
AUGUST 14, 2007
VIRGINIA BOARD OF MEDICINE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrance Ney, Judge
Richard E. Gardiner for appellant.
Howard M. Casway, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General; David E. Johnson, Deputy Attorney
General; Jane D. Hickey, Senior Assistant Attorney General, on
brief), for appellee.
The Virginia Board of Medicine indefinitely suspended the medical license of Reffat K.
Abofreka, M.D., for a period of not less than eighteen months. Dr. Abofreka contends the trial
judge erred in affirming the suspension order and argues that (i) three of the Board’s seven
conclusions of law were improper applications of statutory law because they were not supported by
the findings of fact the Board specifically identified as the basis for those conclusions; (ii) the judge
could not, as a matter of law, consider findings of fact other than those expressly identified by the
Board as supporting its conclusions; (iii) several of the Board’s findings of fact were not supported
by substantial evidence; and (iv) the Board’s withdrawal of one of its conclusions of law and a
portion of another necessitated a remand to the Board for further proceedings. For the reasons that
follow, we affirm the judgment.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
In March 2006, the Board received an investigative report from the Enforcement Division
of the Department of Health Professions alleging Dr. Abofreka made an error which caused him
to cease a procedure for the termination of pregnancy of a patient. After considering this report
and prior reports of inadequate prenatal care by Dr. Abofreka, the Board summarily suspended
his medical license and instituted proceedings for an administrative hearing. See Code
§ 54.1-2408.1. The following month, a panel of the Board held a formal evidentiary hearing and
received testimony from several expert witnesses addressing Dr. Abofreka’s practices and
procedures concerning “Patient A,” “Patient B,” and “Patient C.” Dr. Abofreka offered his own
expert witness and also testified on his own behalf.
On May 23, 2006, the Board entered an order, which included sixteen Findings of Fact,
some of which contained subparts, and eight Conclusions of Law. Each Conclusion of Law
specifically referred to one or more findings and identified the applicable statute or regulation
violated. The Board indefinitely suspended Dr. Abofreka’s medical license for not less than
eighteen months from the date of entry of its order.
Dr. Abofreka filed a petition for appeal seeking a review in the circuit court. In the
petition, he challenged five of the Board’s Conclusions of Law (1, 2, 3, 6, and 8), and he argued
those Conclusions of Law are “either not supported by the facts found by the Board and are not
in compliance with statutory authority as the Board has not properly applied the law to those
facts, or are not supported by substantial evidence.” The Board denied each of the petition’s
allegations but acknowledged the order contained “no Finding of Fact No. 5f,” which the Board
had identified in its order as support for Conclusion of Law No. 8. In a later pleading, the Board
“concede[d] . . . there was no Finding of Fact 5f in the Board’s order and therefore there is no
violation of law” to support Conclusion of Law No. 8. The Board also acknowledged that
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Conclusion of Law No. 3 mistakenly referenced Code § 54.1-2915(A)(18) when it stated
“Finding of Fact No. 5 constitutes a violation of [Code §§] 54.1-2915(A)(17) and (18) . . . and
. . . 54.1-3404.B.” In its pleading, the Board asserted that these two “withdrawal[s]” represented
harmless error.
The record does not contain a transcript of the hearing in the circuit court or a statement
of facts and other incidents of the case. See Rule 5A:8. At the conclusion of a hearing, the trial
judge entered an order affirming the Board’s order. The judge ruled that (i) the record contained
substantial evidence to support the Board’s findings of fact, (ii) the findings of fact fully
supported six of the conclusions of law, (iii) the findings of fact supported Conclusion of Law
No. 3 “with the exception of . . . a violation of . . . Code § 54.1-2915(A)(18),” and
(iv) Conclusion of Law No. 8 was not supported because there was no Finding of Fact No. 5(f).
In accordance with “the Board’s agreement,” the trial judge directed the Board “to amend its
May 23, 2006 order . . . by withdrawing Findings of Fact 5(a) and 5(f) as violations of . . . Code
§ 54.1-2915(A)(18).” The judge ruled that these withdrawals “constitut[ed] harmless error.” On
November 6, 2006, the Board entered an amended order in accordance with the trial judge’s
order. This appeal followed.
II.
We begin by reviewing some basic principles. The Board of Medicine is an
administrative agency and is authorized to suspend a doctor’s license for a specific period or
indefinitely for “unprofessional conduct.” Code § 54.1-2915(A). When the Board conducts
hearings “to determine whether to revoke or suspend a doctor’s license . . . [, those proceedings]
are subject to the provisions of the Virginia Administrative Process Act.” Goad v. Virginia Bd.
of Medicine, 40 Va. App. 621, 633, 580 S.E.2d 494, 500 (2003). Under the Act, the doctor
whose license has been suspended bears the burden of proving the administrative agency
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committed an error of law. Code § 2.2-4027. “Errors of law” fall into one of two categories:
they either concern the substantiality of the evidence to support the agency decision or the scope
of the agency’s authority to make a decision. See id.; Johnston-Willis Ltd. v. Kenley, 6 Va. App.
231, 242, 369 S.E.2d 1, 7 (1988).
The “substantial evidence” standard . . . is designed to give
great stability and finality to the fact-findings of an administrative
agency. The phrase “substantial evidence” refers to “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Under this standard, applicable here, the court may
reject the agency’s findings of fact “only if, considering the record
as a whole, a reasonable mind would necessarily come to a
different conclusion.”
Virginia Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (citations
omitted). Even when supported by substantial evidence, agency actions may be reversed if, on
review, the record reveals a failure to follow required procedure or to comply with statutory
authority. Johnston-Willis, 6 Va. App. at 243, 369 S.E.2d at 7.
“On appeal of an agency’s determination on issues of law, “‘[i]f the issue falls outside the
area generally entrusted to the agency, and is one in which the courts have special competence,
i.e., the common law or constitutional law,’” the court need not defer to the agency’s
interpretation.” Evelyn v. Commonwealth, 46 Va. App. 618, 624, 621 S.E.2d 130, 133 (2005)
(quoting Johnston-Willis, 6 Va. App. at 243-44, 369 S.E.2d at 8). Thus, the agency’s “basic law
. . . and the purposes of the law are crucial to the determination of a reviewing court.” Id. at 244,
369 S.E.2d at 8. This is so because, “where the question involves an interpretation which is
within the specialized competence of the agency and the agency has been entrusted with wide
discretion by the General Assembly, the agency’s decision is entitled to special weight in the
courts.” Id. Furthermore, when issues are raised on appeal concerning mixed questions of fact
and law, we have held as follows:
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Interrelated factual and legal issues must be considered together in
the context of the entire record, with each examined under the
appropriate standard of review. The court may then discharge its
statutory duty and “determine . . . whether the result reached . . .
could reasonably be said, . . . to be within the scope of the legal
authority of the agency.”
Environmental Defense Fund, Inc. v. Virginia State Water Control Bd., 15 Va. App. 271, 279,
422 S.E.2d 608, 612 (1992) (quoting Johnston-Willis, 6 Va. App. at 243, 369 S.E.2d at 7-8).
III.
Dr. Abofreka presents six questions for consideration on appeal. The Commonwealth
contends the issues raised by these questions were not properly preserved for appeal. Because
the Commonwealth’s contention bears merit for some issues, we address each question presented
in turn.
Additionally, in accordance with familiar principles of appellate
review, “we review the facts in the light most favorable to
sustaining the Board’s action,” and “take due account of the
presumption of official regularity, the experience and specialized
competence of the agency, and the purposes of the basic law under
which the agency has acted” . . . .
Goad, 40 Va. App. at 634, 580 S.E.2d at 501 (quoting Atkinson v. Virginia Alcohol Beverage
Control Comm’n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985), and Code § 2.2-4027).
Findings of Fact
Initially, we note that Dr. Abofreka raises as a question presented “[w]hether Findings of
Fact 2-4, 5d, 6-14, and 16 are supported by substantial evidence in the record.” To satisfy the
requirement of Rule 5A:20, that the appellant make “a clear and exact reference to the page(s) of
the . . . record . . . where each question was preserved in the trial court,” Dr. Abofreka refers to
the trial judge’s final order. That order indicates, however, Dr. Abofreka’s attorney endorsed it
“seen and objected to,” without any specific objections.
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This objection to the order is insufficient to preserve this issue for appeal. Lee v. Lee, 12
Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (holding that “neither the Code nor Rule 5A:18
is complied with merely by objecting generally to an order[; thus,] it follows that a statement that
an order is ‘seen and objected to’ must also be insufficient”). Furthermore, this issue was not
raised in the petition for appeal to the circuit court and does not appear immediately obvious in
the pleadings in the circuit court. In other similar appeals, we have held:
[Appellant] did not comply with Rule 5A:20(c) which requires, in
the opening brief, “a statement of the questions presented with a
clear and exact reference to the page(s) of the transcript, written
statement, record, or appendix where each question was preserved
in the trial court.” [Appellant] only referred to objections stated in
four particular hearings without making reference to “the page(s)
of the transcript . . . record or appendix where each question was
preserved in the trial court.” “[W]e will not search the record for
errors in order to interpret the appellant’s contention and correct
deficiencies in a brief.” Buchanan v. Buchanan, 14 Va. App. 53,
56, 415 S.E.2d 237, 239 (1992).
Barrs v. Barrs, 45 Va. App. 500, 512, 612 S.E.2d 227, 232-33 (2005). See also Courembis v.
Courembis, 43 Va. App. 18, 25-26, 595 S.E.2d 505, 509 (2004). We have no indication
Dr. Abofreka preserved these issues under Rule 5A:18; therefore, we will not consider them on
appeal.1
Conclusion of Law No. 1
Dr. Abofreka contends “the Board’s Conclusion of Law 1 is, as a matter of law, an
improper application of Code § 54.1-2915(A)(3), (6), and (13).” This issue was raised by the
petition for appeal in the circuit court and in the trial memorandum.
1
Though Dr. Abofreka did raise in his trial memorandum and questions presented on
appeal the issue of substantial evidence in the record to support Finding of Fact 5(d), he failed to
develop any argument on the issue in his opening brief. We therefore decline to address the
issue under Rule 5A:20(e). See also Epperly v. County of Montgomery, 46 Va. App. 546,
557-58, 620 S.E.2d 125, 131 (2005).
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Conclusion of Law No. 1 states: “Finding of Fact No. 2 constitutes a violation of [Code
§ 54.1-2915(A)(3), (6), and (13) . . . .” The Board’s Finding of Fact No. 2 is as follows:
On or about January 9, 2006, Patient A presented to
Dr. Abofreka’s office for termination of pregnancy. Without
performing diagnostic tests to ascertain the gestational age of the
fetus, and instead relying on a bimanual pelvic examination that he
believed showed a 12-week fetus, Dr. Abofreka began a
termination procedure on Patient A. After applying suction several
times, Dr. Abofreka realized that the pregnancy was greater than
the 12-weeks gestation he estimated on examination. He stopped
the procedure and performed a sonogram, which showed the
gestational age was approximately 24-weeks, requiring such
procedure be performed in a hospital. Dr. Abofreka instructed the
patient to proceed directly to Alexandria Hospital, where the
gestational age of 23.2 weeks was confirmed by sonogram. The
fetus was delivered, but failed to survive.
Code § 54.1-2915(A)(3), (6), and (13) provide that the following acts constitute
unprofessional conduct:
3. Intentional or negligent conduct in the practice of any branch of
the healing arts that causes or is likely to cause injury to a patient
or patients;
* * * * * * *
6. Undertaking in any manner or by any means whatsoever to
procure or perform or aid or abet in procuring or performing a
criminal abortion;
* * * * * * *
13. Conducting his practice in such a manner as to be a danger to
the health and welfare of his patients or to the public.
Dr. Abofreka argues nothing in Finding of Fact No. 2 supports the conclusions that he
caused or was likely to cause injury to Patient A, that he performed a criminal abortion, or that
his conduct posed a danger to Patient A or any other person. Dr. Abofreka also argues that on
review, “the only facts which the court may consider in determining whether [he] violated Code
§ 54.1-2915(A)(3), (6), and (13) with respect to Patient A are the facts in Finding of Fact 2
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because those are the only facts upon which the Board explicitly relied.” He further argues the
trial judge could not rely upon the Board’s interpretation of the statute.
The Board responds that substantial evidence supports the findings and conclusions, that
the Findings of Fact Nos. 6-9 and 14 adopted by the Board “provide corroboration in support of
Finding of Fact 2 as a violation of Va. Code § 54.1-2915(A)(3), (6), and (13),” and that the
record supports the trial judge’s rulings.
The Board’s order includes the following Findings of Fact Nos. 6-9 and 14, which
specifically refer to Patient A:
6. In his office note for Patient A on January 9, 2006,
Dr. Abofreka documented a question mark by the date of the
patient’s last menstrual period and noted that her period had been
shorter in duration than normal.
7. Thomas E. Burns, III, M.D., a board-certified
Obstetrician/Gynecologist, was accepted by the Board as an expert
witness. He testified that in order to estimate gestational age when
there is uncertainty concerning a patient’s last menstrual period,
further study is indicated, to include a sonogram. He testified that
a bimanual examination is not accurate if the patient’s bladder is
full or if the patient is past the first trimester of pregnancy, and that
a pregnancy believed to be close to twelve weeks should be
confirmed by sonogram prior to initiating a termination procedure.
8. Dr. Burns testified that an experienced physician performing a
bimanual examination on a patient of similar size to Patient A
should be able to accurately estimate gestational age within a
two-week margin of error. He further described many physical
differences found in a patient with a pregnancy of twelve weeks
and one of twenty-four weeks.
9. Dr. Burns stated that Dr. Abofreka’s treatment of Patient A
constituted an egregious departure from accepted standards of care.
* * * * * * *
14. Julius Piver, M.D., a board-certified
Obstetrician/Gynecologist, was qualified as an expert witness and
testified on behalf of Dr. Abofreka concerning Patients A and C.
He testified that a sonogram is not always required to establish
gestational age if there is no discrepancy between the patient’s
reported last menstrual period and the size of the uterus. However,
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he further testified that if there is uncertainty about dates, he would
perform a sonogram; if a patient had a full bladder, he would have
it emptied; and that he “absolutely” would take extra precautions
prior to terminating a pregnancy estimated to be 12 weeks.
Under the Administrative Process Act, the role of the trial judge in an appeal from an
agency decision is equivalent to the role of the appellate court in an appeal from a trial court.
J.P. v. Carter, 24 Va. App. 707, 721, 485 S.E.2d 162, 169 (1997). In a review of agency action,
the trial judge has the authority to consider the entire record to determine whether the agency
properly applied the law to the facts of the case. “Proper judicial review of the Board’s action
must not be restricted . . . , but must encompass ‘all . . . proofs’ found within the entire record.”
Environmental Defense Fund, Inc., 15 Va. App. at 279, 422 S.E.2d at 612 (quoting former Code
§ 9-6.14:17); see also Roanoke Memorial Hospitals v. Kenley, 3 Va. App. 599, 609, 352 S.E.2d
525, 531 (1987).
Dr. Abofreka argues, however, the trial judge could not uphold Conclusion of Law No. 1
by referring to other findings of fact in the Board’s order because the Board did not expressly
rely upon them in reaching this conclusion. In support of this argument, he cites Securities and
Exchange Commission v. Chenery Corp., 332 U.S. 194 (1947), and Goad, 40 Va. App. 621, 580
S.E.2d 494. We conclude that both cases are distinguishable from this case.
In Chenery, the United States Supreme Court refused to affirm the administrative
agency’s order approving an amended reorganization plan because the only grounds upon which
the agency had clearly based its decision were insufficient as a matter of law. The Court held
that a reviewing court must judge the propriety of an agency’s action based solely on the grounds
invoked by the agency. 332 U.S. at 198. See also First Virginia Bank v. Commonwealth, 213
Va. 349, 351, 193 S.E.2d 4, 5-6 (1972) (citing Chenery and holding, “[e]ven where the [agency]
has reached the right result for the wrong reason, its decision, unlike that of a trial court, will not
be permitted to stand”).
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In Goad, we rejected the Board’s attempt to support its decision by assigning to it certain
“conclusions,” “determinations,” and “findings” where the record did not establish the Board
made such conclusions, determinations or findings. 40 Va. App. at 637, 580 S.E.2d at 502. We
did not cite Chenery, but the reasoning is analogous.
Unlike in Chenery and Goad, the Board in this case specifically expressed its findings in
sixteen separately enumerated “Findings of Fact.” In considering the Board’s action, the trial
judge did not have to speculate about the Board’s findings and was not called upon to substitute
his views for the Board’s discretionary judgment. Findings of Fact Nos. 6-9 and 14 directly
relate to the circumstances chronologically stated in Finding of Fact No. 2. Those findings
specifically pertain to Patient A, explain the circumstances underlying Finding of Fact No. 2, and
corroborate Finding of Fact No. 2. The Board’s designation of these facts as “Findings of Fact”
clearly indicate the Board relied on them in reaching its conclusions of law. Although the
Board’s procedure of specifically citing only certain findings of fact within each conclusion of
law is puzzling and may prove to be ill advised in other cases, we cannot say in this case that the
chosen method was prejudicial to Dr. Abofreka or constituted error. We hold that here, where
the Board’s order contains express findings of fact that are germane to specific patients and that
directly corroborate and explain the grounds upon which the Board expressly relied, the trial
judge could consider the corroborative findings to determine whether the Board’s conclusions
are supported by the findings expressly relied upon. See Environmental Defense Fund, Inc., 15
Va. App. at 279, 422 S.E.2d at 612 (holding that the trial judge was entitled to consider the entire
record, including findings of facts found by the agency, in determining whether the agency’s
ruling was “within the scope of the legal authority”). Thus, the trial judge did not err in
considering Findings of Fact Nos. 6-9 and 14 to determine whether the Board’s Conclusion of
Law No. 1 was supported by substantial evidence.
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It is within the Board’s “expert discretion” to evaluate whether intentional conduct
engaged in by a medical professional is injurious or otherwise dangerous according to the
standards promulgated by the Board. See Johnston-Willis, 6 Va. App. at 244, 360 S.E.2d at 8
(discussing an agency’s experience and specialized competence). The record supports the trial
judge’s ruling that the Board’s Findings of Fact support its conclusion that Dr. Abofreka’s
intentional or negligent conduct was likely to cause injury to a patient, Code § 54.1-2915(A)(3),
and that his care of Patient A constituted practice in such a manner that Patient A was
endangered by the conduct of Dr. Abofreka, Code § 54.1-2915(A)(13).
Whether the findings of fact support the conclusion Dr. Abofreka performed a “criminal
abortion” is a legal issue that we review de novo. Code § 18.2-71 defines a “criminal abortion”
as one in which the performer “use[s] means, with intent to destroy [a woman’s] unborn child, or
to produce abortion or miscarriage, and thereby destroy such child, or produce such abortion or
miscarriage.” The Board found that Dr. Abofreka failed to perform standard “diagnostic tests to
ascertain the gestational age of the fetus, and instead rel[ied] on a bimanual pelvic examination.”
He applied “suction several times [before he] realized that the pregnancy was greater than the
12-weeks gestation he estimated on examination.” Before performing the procedure,
Dr. Abofreka had grossly underestimated the gestational age of the fetus. The gestational age of
the fetus was approximately 24 weeks, which required the procedure to be performed in a
hospital. Code § 18.2-73; see also Simopoulos v. Virginia, 462 U.S. 506 (1983) (upholding
Virginia’s statute imposing criminal liability for performing second-trimester abortions outside a
hospital). In short, the factual findings reveal Dr. Abofreka performed the termination procedure
in his office on Patient A at twenty-four weeks gestation, or the second trimester of pregnancy,
and therefore he performed an unlawful abortion. These factual findings, when coupled with the
other factual findings that were based upon expert testimony, establish that the Board properly
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concluded Dr. Abofreka performed a second-trimester abortion in violation of Code
§ 54.1-2915(A)(6).
We hold, therefore, the trial judge properly upheld the Board’s conclusion that
Dr. Abofreka violated Code § 54.1-2915(A)(3), (6), and (13) by his conduct with Patient A.
Conclusion of Law No. 2
Dr. Abofreka contends “Conclusion of Law 2 is, as a matter of law, an improper
application of Code § 54.1-2915(A)(3) and (13).” He argues Findings of Fact Nos. 3 and 4, upon
which the Board expressly relied, do not support the conclusion that he caused or was likely to
cause injury to Patient B or that his conduct constituted a danger to the health and welfare of
Patient B. This issue was preserved in Dr. Abofreka’s petition for appeal and trial memorandum.
In Findings of Fact Nos. 3 and 4, the Board found as follows:
3. Dr. Abofreka failed to properly care for Patient B during her
pregnancy or to transfer her to an appropriate healthcare provider.
Specifically:
a. Patient B presented to Dr. Abofreka on or about August
23, 2004, reporting possible pregnancy. At that time he did
not conduct standard testing to confirm pregnancy; instead
he performed a vaginal sonogram. Dr. Abofreka noted in
the patient’s chart that he advised the patient that he does
not deliver babies, does not do prenatal care, and only does
sonograms and blood testing. After confirming pregnancy,
he did not adequately refer the patient to an obstetrician on
this visit.
b. Patient B presented to Dr. Abofreka on or about
September 20, 2004, at which time he drew a blood sample,
which was subsequently analyzed by LabCrop and returned
as a “Prenatal Profile I.” Dr. Abofreka also performed a
vaginal examination and noted that there were no signs of
infection. He did not provide adequate prenatal or
obstetrical care at that time, nor did he adequately refer the
patient to an obstetrician on this visit.
c. Patient B presented to Dr. Abofreka on or about October
18, 2004, November 16, 2004, December 14, 2004, January
11, 2005, and February 15, 2005, during which visits he
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sometimes took the patient’s blood pressure and performed
an abdominal ultrasound (sonogram), and recorded the
gestational age and developmental stage of the fetus in the
patient’s records. Dr. Abofreka did not provide any further
prenatal or obstetrical care at these visits, nor did he
adequately refer the patient to an obstetrician.
d. Patient B presented to Dr. Abofreka on or about March
1, 2005, complaining of infection. Dr. Abofreka performed
a vaginal examination and noted that there were no signs of
infection, and that no treatment was given. Despite her
advanced stage of pregnancy, he did not provide any
further prenatal or obstetrical care at this visit, nor did he
adequately refer the patient to an obstetrician.
e. When Patient B presented to the Prince William
Hospital Emergency Room on or about March 6, 2005 for
labor and delivery, she informed the doctors present there
that Dr. Abofreka was her physician.
4. Dr. Abofreka performed abdominal ultrasounds (sonograms) on
Patient B every month of her pregnancy from on or about October
2004 through on or about February 2005, without medical or
therapeutic purpose.
In its Conclusion of Law No. 2, the Board stated: “Findings of Facts Nos. 3 and 4
constitute violations of [Code §] 54.1-2915(A)(3) and (13).” These code sections, which were
also cited in Conclusion of Law No. 1, proscribe as “unprofessional conduct . . . [i]ntentional or
negligent conduct . . . that causes or is likely to cause injury to a patient . . . [and] [c]onducting
. . . practice in such a manner as to be a danger to the health and welfare of his patients or to the
public.” Code § 54.1-2915(A)(3), (13).
Although not specifically referenced in Conclusion of Law No. 2, the Board also made
Findings of Fact Nos. 10-12 and 16, which relate to Patient B. These findings are as follows:
10. John Douglas Wall, M.D., a board-certified
Obstetrician/Gynecologist, was accepted by the Board as an expert
witness and testified concerning his interaction with Patient B
when she presented in labor at Prince William Hospital. Upon her
arrival at Prince William Hospital, Patient B presented
Dr. Abofreka’s card and requested that he be called. Dr. Wall
testified that Patient B had the understanding and expectation that
Dr. Abofreka was to deliver her baby.
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11. Dr. Wall testified concerning the treatment rendered by
Dr. Abofreka to Patient B during her pregnancy. He stated that
Dr. Abofreka’s records for Patient B contained no evidence of the
usual standard of prenatal care. He opined that Dr. Abofreka’s
“statement/agreement” signed by Patient B indicating that
Dr. Abofreka was merely acting as a “technician” in performing
sonograms on Patient B was not supported by the medical records
wherein Dr. Abofreka provided interpretation of the sonograms.
He further testified that Dr. Abofreka was responsible for
interpreting the “Prenatal Profile I” laboratory values ordered for
Patient B on September 20, 2004, or should have referred the
results to another physician for interpretation.
12. John Gonzales, M.D., a board-certified
Obstetrician/Gynecologist, was qualified as an expert and testified
concerning his treatment of Patient B at Prince William Hospital.
He stated that Patient B did not receive proper prenatal care prior
to her presentation at Prince William Hospital, and that her baby
remained in the hospital for 48-hours to ensure that it was not
septic because Patient B was not tested for Group B strep prior to
delivery.
* * * * * * *
16. Jennifer Uzeda, Dr. Abofreka’s receptionist since
approximately June 2004, provided testimony to the Board
concerning Dr. Abofreka’s office routine. She testified that
patients who are pregnant are told that they need to find a
physician who provides obstetric care, that the patient would sign a
form in this regard, and that no further appointments would be
made. Said testimony is at variance with the appointment log
provided to the Board by Dr. Abofreka indicating that Patient B
presented for care approximately monthly. The Board does not
find Ms. Uzeda’s testimony that Patient B was a “walk in” patient
each time she presented to the office, or that Patient B was
provided sonograms solely at the patient’s request, to be credible.
Further, the reasons for Patient B’s presentation at Dr. Abofreka’s
office documented in the appointment log are not documented in
the patient’s medical record for many patient visits.
As we previously explained, although the Board’s procedure of referring only to selective
findings of fact is puzzling, these Findings of Fact Nos. 10, 11, 12, and 16 undisputedly elucidate
the chronological recitations concerning Patient B, as contained in Findings of Fact Nos. 3 and 4,
and corroborate those findings. Matters concerning a physician’s conduct as injurious or
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dangerous are within the expertise of the Board. Further, the trial judge was authorized to
consider other corroborative findings germane to Patient B, including those detailing the expert
testimony of other doctors, that support the findings relied upon by the Board. We again accord
deference to the Board’s factual findings because of its experience and specialized competence.
In so doing, we hold the trial judge did not err in ruling Conclusion of Law No. 2 was based on
substantial evidence and factual findings and was not an improper application of Code
§ 54.1-2915(A)(3) and (13).
Conclusion of Law No. 6
Dr. Abofreka contends, as he did in his petition to the circuit court, that the Board’s
“Conclusion of Law 6 is, as a matter of law, an improper application of Code
§ 54.1-2915(A)(18) and 18 VAC 85-20-350.” He argues Finding of Fact No. 5(d) does not
support this conclusion.
Finding of Fact No. 5(d) is as follows:
5. Due to his practice of office-based anesthesia, an unannounced
inspection of Dr. Abofreka’s practice was performed on or about
June 14, 2005, with follow up visits on or about June 23, 2005 and
July 14, 2005. It was found that:
* * * * * * *
d. Dr. Abofreka’s informed consent form for patients did
not contain information about the nature and objectives of
the anesthesia planned for the patient, to include benefits,
risks, expected outcomes and alternatives.
Conclusion of Law 6 states: “Finding of Fact No. 5.d constitutes a violation of [Code
§] 54.1-2915(A)(18) . . . and Section 18 VAC 85-20-350 of the Regulations of the Board.” The
statute authorizes the Board to revoke the license of a medical professional for “violating . . . any
of the . . . regulations of the Board.” Code § 54.1-2915(A)(18). Section 18 VAC 85-20-350 is a
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regulation of the Board that governs the procedure for obtaining and documenting a patient’s
informed consent for the use of office-based anesthesia. In pertinent part, it provides as follows:
Informed consent for the nature and objectives of the anesthesia
planned shall be in writing and obtained from the patient or
responsible party before the procedure is performed. Informed
consent shall only be obtained after a discussion of the risks,
benefits, and alternatives, contain the name of the anesthesia
provider and be documented in the medical record.
Specifically, Dr. Abofreka argues the “plain language of 18 VAC 85-20-350 . . . does not
require that the discussion of the risks, benefits and alternatives be documented in a particular
way, such as on a physician’s informed consent form” and “does not require the informed
consent form to include information concerning ‘expected outcomes.’” Thus, he reasons, he did
not violate the Board regulation by failing to comport with these “requirements.” The Board
responds that these arguments are without merit. We agree with the Board.
Dr. Abofreka essentially challenges the Board’s interpretation of its regulation. Whether
a medical professional has violated a Board regulation, however, is a matter within the
experience and specialized competence of the Board. “The construction which an administrative
agency gives to its regulation, if reasonable, is entitled to great deference.” Virginia Real Estate
Board v. Clay, 9 Va. App. 152, 160, 384 S.E.2d 622, 627 (1989) (holding that “the trial court
erred in its interpretation of Regulation 8.2(36) by substituting its construction of the regulation
for the Board’s reasonable interpretation . . . [and] by failing to defer to the experience and
specialized competence of the Board in interpreting the regulation which it promulgated”). In
other words, when an issue “involves the specialized competence of an agency in construing and
applying its regulations, we are bound by the agency’s decision unless the decision is arbitrary
and capricious.” Smith v. Liberty Nursing Home, Inc., 31 Va. App. 281, 294, 522 S.E.2d 890,
896 (2000). See also Jackson v. W, 14 Va. App. 391, 401, 419 S.E.2d 385, 390-91 (1992)
(holding that we will accord great deference to the interpretation which an administrative agency
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gives its guidelines and will reverse the agency’s construction of its guidelines only if it is
“arbitrary or capricious or fails to fulfill the agency’s purpose as defined by its basic law”).
Dr. Abofreka does not challenge the Board’s conclusion as arbitrary or capricious. We
hold that it was not. The finding and conclusion are based on a plain application of the
regulation. The Board’s application of its regulation and its conclusion are supported by Finding
of Fact No. 5(d). Because Conclusion of Law No. 6 is supported by Finding of Fact No. 5(d), we
hold the trial judge did not err in deferring to the Board in this matter.
Remand
Dr. Abofreka contends the trial judge erred in failing to remand the entire matter to the
Board for further proceedings after the Board partially withdrew Conclusion of Law No. 3 and
completely withdrew Conclusion of Law No. 8. He argues the trial judge “should have found, at
a minimum, in light of the Board’s concessions, that the decision of the Board was not in
accordance with the law.” The Board contends, however, that because the trial judge ruled the
Board’s decision was in accordance with law as required by Code § 2.2-4027, a remand is not
required. The Board further contends that the withdrawn findings of fact “had no significant
impact . . . which would undermine the ‘substantiality of the evidential support for the [Board’s]
factual findings’ and determined by the [judge].” Dr. Abofreka replies that “harmless error”
analysis does not apply because he did not challenge the order of the Board on procedural
grounds.
Code § 2.2-4029, which prescribes the acceptable dispositions of an administrative case
following judicial review, provides in pertinent part, as follows:
Where a regulation or case decision is found by the court not to be
in accordance with law under § 2.2-4027, the court shall suspend
or set it aside and remand the matter to the agency for further
proceedings, if any, as the court may permit or direct in accordance
with law.
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Further, Code § 2.2-4027 provides that errors of law that a court may identify upon review
include “compliance with statutory authority . . . and the factual showing respecting violations
. . . .”
Here, the trial judge held “the findings of fact amply support Conclusions of Law 1, 2, 4,
5, 6, 7 and 3 with the exception of Finding of Fact 5(a) as a violation of . . . Code
§ 54.1-2915(A)(18) and Finding of Fact 5(f) as a violation of . . . Code § 54.1-2915(A)(18).”
The trial judge further ruled the exceptions “constitut[ed] harmless error.” He directed the Board
to amend its order to partially withdraw Conclusion of Law No. 3, to completely withdraw
Conclusion of Law No. 8, and to enter the amended order nunc pro tunc to the date of the entry
of the original order.
The record does not contain a transcript of the circuit court hearing. Beyond the
assertions of the parties, there is nothing in the record to indicate the basis for the judge’s ruling
on this point or the positions of the parties at the hearing regarding this point. This Court has
held that “an appellant has the primary responsibility of ensuring that a complete record is
furnished to an appellate court so that the errors assigned may be decided properly.” Ferguson v.
Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785, aff’d in part, rev’d in part, 240 Va.
ix, 396 S.E.2d 675 (1990).
Absent the transcript, we are unable to know what occurred that may amplify the judge’s
ruling regarding “the Board’s agreement” to amend the May 23, 2006 order or the discussions
concerning harmless error. Therefore, we cannot determine that the judge’s refusal to remand
prejudiced Dr. Abofreka.
[The Supreme Court has] many times pointed out that on appeal
the judgment of the lower court is presumed to be correct and the
burden is on the appellant to present to us a sufficient record from
which we can determine whether the lower court has erred in the
respect complained of. If the appellant fails to do this, the
judgment will be affirmed.
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Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961) (citations omitted). See also
Riddick v. Commonwealth, 135 Va. 724, 726, 115 S.E. 523, 524 (1923). “When a party seeks to
have an issue decided in her favor on appeal, [that party] is charged with the responsibility of
presenting an adequate record from which the appellate court can determine the merits of her
argument.” Pettus v. Gottfried, 269 Va. 69, 81, 606 S.E.2d 819, 827 (2004) (citations omitted).
V.
In conclusion, we hold the conclusions of law reached by the Board were supported by
findings of fact, which the Board expressly made on the record, and by substantial evidence.
We, therefore, affirm the trial judge’s order affirming the Board’s suspension of Dr. Abofreka’s
medical license.
Affirmed.
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