Gaveck v. Arizona State Board of Podiatry Examiners – 9/1/2009

September 4, 2009

Arizona Court of Appeals Division One Holds That Due Process Requires a Professional Licensure Board to Provide Notice of the Standard of Care It Will Apply to a Licensee Charged with a Violation.

Alan Gaveck performed surgery on a patient’s toe.  Complications noticed after the surgery necessitated a second surgery.  The toe did not improve, and it was eventually amputated by another doctor. 

The patient complained to the Arizona State Board of Podiatry Examiners.  Gaveck consented to an informal interview before the Board and attended the interview with his counsel.  During the interview, Gaveck’s counsel requested that the complaint be dismissed because the Board had not disclosed the applicable standard of care and had not presented an expert who could be cross-examined.  The Board refused to dismiss the complaint and, after deliberating, concluded that Gaveck had engaged in unprofessional conduct by failing to obtain the patient’s informed consent before the second surgery and failing to recommend that the patient obtain a specialty consultation or second opinion after the operations.  The Superior Court affirmed.

The Court of Appeals acknowledged that a licensure board may rely on its own expertise to establish the standard of care and need not engage an expert to do so.  Nevertheless, the Court held, even when a board relies on its own expertise on the standard of care, due process requires that the licensee receive notice of the standard the board has chosen to apply.  In this case, Gaveck had received notice of the standard of care on the informed consent allegation—informed consent is governed by statute and the Board had cited the statute in its notice to Gaveck.  On the other hand, the Board had not provided Gaveck with notice of “the exact nature of when and how the Board disagreed with his post-operative management of this patient.”  The court affirmed the Board’s conclusion on the informed consent allegation and remanded to the Board for a new informal interview on the other allegation.

Judge Winthrop authored the opinion; Judges Johnsen and Norris concurred.