CARL J. SCHUMAN, Judge.
The plaintiff, Charles Ray Jones, M.D., appeals from the final decision of the defendant Connecticut medical examining board (board) imposing a fine, reprimand, and other discipline on the plaintiff arising from his treatment of two children from Nevada for Lyme disease. For the following reasons, the court sustains the appeal in part and remands the case to the board for further proceedings.
I
After the state department of public health brought charges against the plaintiff in 2005, a panel of two physicians and one lay person conducted eleven days of hearings over a fourteen-month period. The full board then reviewed the panel's proposed decision and, in a December 18, 2007 memorandum of decision, made the following findings. The plaintiff holds a Connecticut physician and surgeon license. On or about December 17, 2003, the plaintiff consulted by telephone with the mother of minor children S.S. and E.S., who were living in Nevada. At that time, the plaintiff diagnosed E.S. as having gestational Lyme disease. The plaintiff took several other actions prior to first examining the children on May 21, 2004. On January 5, 2004, the plaintiff prescribed Doxycycline for E.S.'s Lyme disease. On March 18, 2004, the plaintiff prescribed Zithromax for S.S. On March 26, 2004, the plaintiff made recommendations to the principal of S.S.'s school for S.S.'s education based on a provisional diagnosis of late-stage Lyme disease.
The court adopts the board's use of initials in lieu of revealing the full name of the children.
But see section III of this decision, in which the court finds insufficient evidence to support the findings that the plaintiff diagnosed E.S. with Lyme disease and prescribed Doxycycline.
The prescription, which was a renewal of a prescription originally ordered by another physician, was for a cough, and not for Lyme disease. (Return of Record (ROR), Vol. 8, pp. 75-76; Vol. 9, pp. 14-18.)
The recommendation was for S.S. to have homebound teaching for five hours a week for the remainder of the fifth grade and the entire sixth grade. (ROR, Vol. 3, pp. 237, 240.)
At the May 21 exam, the plaintiff wrote a diagnosis for E.S. of possible gestational Lyme disease. The plaintiff treated both children with a continuous prescription of Amoxicillin until March 2005 and then continuously with Omnicef. After the May 21, 2004 exam, the plaintiff did not examine the children until April 11, 2005, nor did he make any arrangements for another physician to monitor their medication. At the April 11 examination, the plaintiff ordered a series of tests for Lyme disease, including the Western Blot tests, and other pathogens. All tests CT Page 19757 were negative except, in the case of S.S., for "Mycoplasma fermetans and a weakly positive titer for Streptococcus A antibodies" and, in the case of E.S., a positive antibody finding for Epstein-Barr Virus.
The board found that the plaintiff violated the standard of care for both children in that he 1) prescribed an antibiotic to a patient he did not know and had never examined; 2) prescribed antibiotics for nearly a year without repeat examinations and without any arrangement with another physician to monitor the patient for the side effects of long-term antibiotic therapy; and 3) diagnosed a disease in both children when the exposure risk was extremely low, the medical history was non-specific, the signs and symptoms were non-specific, and the laboratory tests were negative. In addition, in the case of S.S., the board found that the plaintiff violated the standard of care by making an educational recommendation for a child he did not know and had never examined. The board also found, without specifying whether it was a violation of the standard of care, that the plaintiff failed to reconsider the diagnosis of Lyme disease for S.S. and E.S. in light of the negative Western Blot tests obtained in April 2005.
As a result of these findings, the board ordered a reprimand, imposed fines totaling $10,000, and placed the plaintiff on probation for two years. In addition, the board required the appointment of a physician monitor to conduct regular reviews of the plaintiff's patient records and meetings with the plaintiff. (Return of Record (ROR), Vol. 1, Memorandum of Decision (Mem. Dec.).)
On January 2, 2008, the plaintiff filed a motion for reconsideration alleging that a member of the panel, Dr. John Senechal, was biased against the plaintiff. The board denied the motion in a brief ruling stating principally that the alleged bias did not relate to the findings and conclusions in the memorandum of decision. (ROR, Vol. 1, pp. 19-38.)
The plaintiff appeals.
II
Under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., judicial review of an agency decision is very restricted. See MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because CT Page 19758 the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Stated differently, "[j]udicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). "It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
The plaintiff's initial claim is that the record lacks substantial evidence to support the board's finding in paragraph 12 of the finding of facts in the board's memorandum of decision. That finding states in pertinent part: "On or about December 17, 2003, the [plaintiff] provided [sic] a telephone conversation with E.S.'s mother and diagnosed ES as having gestational Lyme disease . . . [The] plaintiff prescribed E.S. Doxycycline for Lyme disease on or about January 5, 2004."
The substantial evidence rule is "similar to the sufficiency of evidence standard applied in jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 331, 732 A.2d 144 (1999). Applying this standard, there was not substantial evidence to support the quoted portions of paragraph 12.
The plaintiff testified in 2006 that he had been treating thousands of "pediatric Lyme cases" over thirty years. (ROR, Vol. 8, p. 132.) His answer and his own notes reveal that he did have a phone conversation with the mother of E.S. on December 17, 2003 in which he discussed symptoms E.S. was experiencing such as joint pain and fatigue as well as possible explanations such as gestational exposure and environmental exposure. (ROR, Vol. 2, p. 5; Vol. 3, item 1, p. 2.) However, the board does not point to any evidence nor, after conducting its own review, has CT Page 19759 the court found any evidence to support the board's finding that, on December 17, 2003, the plaintiff diagnosed E.S. as having gestational Lyme disease.
The board cites several pages of the medical record. The court has reviewed them, but they do not establish, or even directly suggest, that the plaintiff made the diagnosis in question on or about December 17, 2003. In contrast, the mother of E.S. testified clearly that the plaintiff did not make a diagnosis of E.S.'s condition over the phone. (ROR, Vol. 9, pp. 13, 41.)
The principal evidence to support the additional finding that the plaintiff prescribed Doxycycline for E.S. on or about January 5, 2004 stems from a note written by Robert J. Kimmel, her physician in Nevada, who had examined her on that day. The note reads: "Pt took Doxycycline for test purpose [sic] by `pediatric Lyme specialist.'" (ROR, Vol. 3, item 1, p. 26.) Kimmel testified that he did not prescribe the Doxycycine and that he did not know who did. The questioning by counsel for the department of public health continued as follows:
"Q: Alright. But it was your understanding that someone who was a pediatric Lyme specialist had prescribed Doxycycline for her in the very recent past prior to January 5th, 2004?"
"A: Correct."
"Q: And that was for a test purpose?"
"A: That's what I was told." (ROR, Vol. 13, pp. 142.)
From the available evidence, it would be reasonable to infer that the phrase "pediatric Lyme specialist" refers to the plaintiff. However, as the quoted colloquy reveals, the evidence that the plaintiff had actually prescribed Doxycycline for E.S. is hearsay from an unknown source. To be sure, it might also be reasonable to infer that the source was the mother, since she apparently was present with Kimmel when he examined E.S. But the mother of E.S. testified that the plaintiff did not prescribe Doxycycline for E.S. She added that she herself was taking Doxycycline and that there was a possibility of confusion in the medical records because her children had some gestational exposure to her condition. (ROR, Vol. 9, pp. 41-42.)
The mother nonetheless admitted that the plaintiff prescribed a refill of Zithromax for S.S. in March 2004 over the phone, before he had seen S.S. (ROR, Vol. 9, pp. 14-15, 17-18.) Thus, the mother was not necessarily testifying favorably to the plaintiff on all CT Page 19767 critical points.
While there was thus some evidence from which one could infer that the plaintiff prescribed Doxycycline for E.S., this evidence, consisting solely of inferences from hearsay evidence, was not substantial. Although hearsay evidence such as Kimmel's note and testimony is admissible in administrative proceedings, courts should view it more cautiously when, as here, "it is the only evidence probative of the plaintiff's culpability." Carlson v. Kozlowski, 172 Conn. 263, 267, 374 A.2d 207 (1977); accord Paquette v. Hadley, 45 Conn.App. 577, 581 n. 9, 697 A.2d 691 (1997). The evidence that someone told Kimmel that a pediatric Lyme specialist had E.S. use Doxycycline for test purposes, CT Page 19760 especially given the mother's testimony concerning the possibility of confusion concerning who actually was taking the medication, is simply too slender a basis upon which to rest a conclusion that the plaintiff committed a violation of the standard of care. Accordingly, the court finds that there was not substantial evidence to support the board's finding in paragraph 12.
IV
Next, the plaintiff claims that the board disciplined him for issues not alleged in the statement of charges. He claims specifically that he lacked sufficient notice that the board would find that he violated the standard of care by diagnosing a disease when the medical history, signs, and symptoms were non-specific, the laboratory tests were negative, and "the exposure risk was extremely low."
General Statutes § 4-182(c) provides that "[n]o revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of the facts or conduct which warrant the intended action." Our Supreme Court has added that in licensing cases "due process requires that the notice given must advise the party of the facts or conduct alleged to be in violation of the law and must fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law." (Internal quotation marks omitted.) Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 535, 560 A.2d 403 (1989). When there is a variance between the charges and the conclusions reached by the agency, the question becomes whether the plaintiff can establish that "substantial rights of the person appealing have been prejudiced." General Statutes § 4-183(j); Levinson v. Board of Chiropractic Examiners, supra, 535-36.
Paragraph five (d) and (e) of the charges brought by the department of public health alleges that the plaintiff violated the standard of care in that he "diagnosed Lyme disease when S.S.'s history did not support the diagnosis" and that he "made a diagnosis of Lyme disease on May 21, 2004 when the patient's laboratory tests were negative and his signs and symptoms were non-specific." Paragraph 10(c) and (d) of the allegations contains the identical language for E.S. The findings by the board of a violation of standard of care track these allegations closely except for the fact that the board also found that the plaintiff had made the diagnosis "when the exposure risk was extremely low." (Mem. Dec., pp. 5-6.)
Paragraphs 5(d) and 10(c) in the allegations state that the plaintiff violated the standard of care by making a diagnosis "when S.S's [and E.S.'s] history did not support the diagnosis." The board found that the plaintiff had violated the standard of care in part by making a diagnosis of a disease when "the medical history was non-specific." (Mem. Dec., pp. 3-4, 5-6.) The plaintiff does not claim any irregularity from this difference in phrasing.
A separate matter, not raised by the plaintiff, stems from the fact that, on page 11 of the decision, at the end of the section entitled "Discussion and Conclusions of Law," the board summarizes its decision by stating that "the evidence was insufficient to establish violations . . . for the allegations contained in paragraphs part of 2, 5d, 5f, 5g, 5i, 10c, and 10e." (Emphasis added.) If in fact, there was insufficient evidence to support the allegations of paragraphs 5(d) and 10(c), then the board seemingly would have no basis to conclude that the plaintiff violated the standard of care by making a diagnosis when "the medical history was non-specific." On the remand ordered by the court, the board should reconcile this apparent contradiction.
The plaintiff's brief does not establish any way in which in his CT Page 19761 defense of the charges would have differed if he had received actual notice that the premise of the violation of standard of care also included a claim that the patients' "exposure risk was extremely low." This factor is at least consistent with the other factors included in the allegations in that all of them were indications that the patients did not have a disease, a conclusion that the plaintiff disputed continuously. Accordingly, the plaintiff has failed to show that the minor variance between the charges and the findings prejudiced his substantial rights.
V
The plaintiff's principal claim on appeal is his renewal of the argument that Dr. Senechal was biased against him. "The applicable due process standards for disqualification of administrative adjudicators [due to bias] do not rise to the heights of those prescribed for judicial disqualification . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator . . . Moreover, there is a presumption that administrative [officers] acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the [hearing officer] challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . . The plaintiff has the burden of establishing a disqualifying interest." (Citations omitted; internal quotation marks omitted.) Elf v. Dept of Public Health, 66 Conn.App. 410, 425, 784 A.2d 979 (2001).
To prove bias, the plaintiff "must make a showing that the [hearing officer] ha[d] prejudged adjudicative facts that [were] in dispute . . . A tribunal is not impartial if it is biased with respect to the factual issues to be decided at the hearing . . . The test for disqualification has been succinctly stated as being whether a disinterested observer may conclude that [the hearing officer] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it." (Citations omitted; internal quotation marks omitted.) Id., 426.
After filing the appeal in this case, the plaintiff moved and received permission for an evidentiary hearing to supplement the record concerning Senechal's alleged bias. The court heard the testimony prior to argument of this appeal. The plaintiff presented Tracy and Blake Will, who testified, in sum, that when Senechal, a pediatrician, had treated their son in 2007 for symptoms diagnosed by another doctor as Lyme disease, Senechal had made coarse remarks about doctors who treat Lyme disease, calling them, among other things, quacks and charlatans. Senechal testified that he did not remember using the terms "quacks" and CT Page 19762 "charlatans." He acknowledged mentioning in a critical vein that some doctors not specializing in infectious disease or even some non-physicians were treating Lyme disease. He contended that it has never been proven that there is such a condition as chronic Lyme disease. Nonetheless, he maintained that he had not prejudged any of the issues in the case, which was ongoing at the time of his examination of the Wills' son. Senechal explained that, in his view, the administrative hearing was not about Lyme disease but rather whether the plaintiff had conducted a "good faith examination."
The court reconciles the competing testimony by concluding that Senechal made intemperate remarks about the treatment of Lyme disease but focused on treaters who were not specialists in infectious disease. This conclusion, however, merely begs the ultimate question here. That question is whether Senechal had "prejudged adjudicative facts that [were] in dispute . . . [and was] biased with respect to the factual issues to be decided at the hearing." (Citations omitted; internal quotation marks omitted.) Id. Resolution of this question requires, in turn, a determination of what actually was in dispute. As stated above and in its decision, the board's findings that the plaintiff violated the standard of care do not address the appropriate method of diagnosing and treating Lyme disease. In fact, the statement of violations of the standard of care does not even mention Lyme disease. (Mem. Dec., pp. 5-6.) Rather, the board found that the plaintiff had violated general standards of medical care by prescribing antibiotics and making educational recommendations without examining the patient, prescribing long-term antibiotic therapy without arranging to have another physician monitor the patient, and diagnosing a disease when the exposure risk was low, the medical history, signs, and symptoms were non-specific, and the laboratory tests were negative. These standards would presumably apply to virtually any physician in any speciality. Thus, the fact that Senechal may have had hardened views about the practice of some people treating Lyme disease would not necessarily reveal any bias as to whether the plaintiff had violated the general standards of medical care at issue in this case.
The General Assembly has now enacted a statute prohibiting the board from taking disciplinary action against any licensed physician "solely for prescribing, administering or dispensing long-term antibiotic therapy to a patient clinically diagnosed with Lyme disease, provided such clinical diagnosis and treatment has been documented in the patient's medical record by such licensed physician." Public Acts 2009, No. 09-128(b).
Further, it would be unrealistic to assume that a doctor placed on a medical examining panel has no views on the practice of medicine, particularly within his speciality. Physicians, not unlike judges and even jurors, come to their role as adjudicators with a lifetime of experience. This fact is not in itself disqualifying. "A decision maker [is not] disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not capable of judging a particular controversy fairly on the basis of its own circumstances." (Internal quotation marks CT Page 19763 omitted.) Breiner v. State Dental Commission, 57 Conn.App. 700, 707, 57 A.2d 700 (2000).
While Senechal, based on his experience, had expressed skeptical views about the treatment of Lyme disease and the concept of long-term or chronic Lyme disease, there is no evidence that Senechal had prejudged the issues in this case. The record reveals no instance in which Senechal had expressed any views about the plaintiff or how the plaintiff practiced medicine. There is also no evidence that Senechal had made any outside statements or harbored any preconceived notion about whether the plaintiff had violated general medical standards of care, which was the critical issue in this case. In fact, the findings reveal that, on a number of points, the board agreed with the plaintiff on the historical facts or with his arguments that he did not violate the standard of care. Accordingly, the plaintiff has not overcome the presumption that the hearing officer was not biased. See Elf v. Dept. of Public Health, supra, 66 Conn.App. 425.
For example, the board found that the department of public health failed to establish that the plaintiff diagnosed S.S. as having gestational Lyme disease on December 17, 2003, that certain medication prescribed by the plaintiff in 2005 was ineffective, and that the plaintiff failed to consider a differential diagnosis when caring for both S.S. and E.S. (Mem. Dec., pp. 5-6.)
VI
The fourth claim raised by the plaintiff is that the decision violates the stated policy of the department of public health that there is no recognized standard of care for the diagnosis and treatment of Lyme disease in Connecticut. It is not immediately clear why any inconsistency with the department of public health's position should invalidate the decision of the board, which is a separate entity. In any event, as discussed above, neither the department's nor the board's position on the proper treatment of Lyme disease was directly at issue in this case. The board instead found that the plaintiff violated general standards of medical care that would apply to most if not all medical specialities. Therefore, there is no merit to the plaintiff's claim of error.
VII
The plaintiff next contends that the board's decision violates various federal policies and American Medical Association principles regarding educational practices, physician advocacy for patients, protection of the physician-patient relationship, and the right of patients to seek second opinions. Nothing in these guidelines, however, serves to immunize a physician from discipline for violating the standards of medical care. In particular, these guidelines do not authorize a physician to make educational recommendations or renew prescriptions for a patient that the physician has not seen. The plaintiff can therefore draw no relief from the policies and guidelines he relies upon.
Unfortunately, the board's brief does not address these claims.
To the extent that the plaintiff challenges the sufficiency of the evidence to support the board's finding of a violation of the standard of care concerning the education recommendation, that challenge must fail. Two physicians testified that it violated the standard of care or was otherwise improper for the plaintiff to make a recommendation to S.S.'s school when the plaintiff had not examined S.S. or seen his psychological CT Page 19768 testing. (ROR, Vol. 5, pp. 171-72; Vol. 13, p. 150.) See also note 4, supra.
CT Page 19764
The plaintiff also claims that the board lacked substantial evidence to conclude that it was a violation of the standard of care for the plaintiff to prescribe antibiotics for nearly a year without making arrangements for another physician to monitor the two patients for side effects. The plaintiff argues that it was sufficient for the mother of the children to monitor the medication because the mother was a registered nurse with experience in an emergency department and as a flight nurse.
The principal expert witness for the department of public health on this issue was Martin Harwin, a pediatrician. On cross-examination by the plaintiff, Harwin testified, with the understanding that the mother was a registered nurse, that having the mother monitor the children "would make me worried that the child may develop some significant diarrhea being treated for twice as long or an overdose. Would she be competent to recognize that? Perhaps, yes." (ROR, Vol. 6, p. 30.)
On redirect examination by the department of public health, the following colloquy occurred:
"Q: And, in general, and I'll start by asking it that way, in general, does the standard of care in such situations, where a physician prescribes a long-term antibiotic for a child, require that the child be monitored during the course of medication by a physician?"
"A: Yes. For instance, some of the antibiotics prescribed had refills of 16 times, 10 days for 16 refills, and that's in the record, and if somebody were on long-term antibiotics, certainly they should be monitored. That's a long time to be on an antibiotic."
"Q: Why would the standard of care require monitoring by a physician rather than by the patient's mother, accepting that the mother, for the sake of the question, is a skilled competent nurse?"
"A: I think that's a difficult question. I think mothers certainly could report diarrhea, but I think it would be nice to be sure that the antibiotic didn't have any side effects, like alter the blood count, for instance. Some antibiotics can alter the blood the count, causing anemia, an alteration in white blood cell count."
"Q: And those would be tests that would have to be ordered by a physician and not by a nurse?"
"A: That's correct."
CT Page 19765
(ROR, Vol. 6, pp. 34-35.)
Thus, when the department posed the precise question raised by the plaintiff — one which incorporated the fact that the mother was a competent nurse — Harwin concluded that, while the question was a difficult one, it was nonetheless a violation of the standard of care to leave the children without monitoring by a physician for almost a year. There was other expert evidence that generally supports this opinion. Based on this recital, there was substantial evidence to support the board's conclusion that the plaintiff had violated the applicable standard of care.
Eugene Shapiro, a physician board certified in pediatrics and pediatric infectious diseases, testified as follows upon examination by the department:
"Q: Right. The standard of care required repeat examinations and/or arrangements with another physician to monitor a patient for side effects of antibiotic therapy when you prescribe antibiotics for nearly a year?"
"A: Yes."
"Q: Why?"
"A: Well, because there's likely to be adverse side effects."
"Q: Can a prudent physician rely upon the parent to monitor for those side effects when the parent is a registered nurse?"
"A: Well it's reasonable. I mean you're always doing that to some extent. I mean if you saw the patient every few months, every couple of months, you're relying on the patient in the interim, but it's prudent to — there are things that a parent might not pick up, or it's prudent to develop some plan for follow-up and monitoring."
(ROR, Vol. 6, pp. 116-17.)
IX
In a supplemental brief, the plaintiff makes the claim that the clear and convincing standard of proof, rather than the preponderance of evidence standard, should apply in physician discipline cases. The plaintiff analogizes this matter to that of attorney discipline cases heard by the statewide grievance committee, in which the clear and convincing standard applies.
The short answer is that attorney discipline cases before the statewide grievance committee are not subject to the Uniform Administrative Procedure Act, as is this case. See Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 576 A.2d 532 (1990).
Under the Uniform Administrative Procedure Act, as interpreted by our Supreme Court, the standard of proof is preponderance of the evidence. See Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 818-21, 955 A.2d 15 (2008). This standard applies in all Uniform Administrative Procedure Act cases, including those involving professional licenses. See id.; Elf v. Dept. of Public Health, supra, 66 Conn.App. 416 (family day care home operator); Swiller v. Commissioner of Public Health and Addiction Services, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 705601 (October 1, 1995, Hodgson, J.) [ 15 Conn. L. Rptr. 532] (chiropractor). The court is bound by our Supreme Court's decisions. Accordingly, it must reject the plaintiff's argument.
X
The remaining issue is the formal disposition of this appeal. The court has found that one of the board's findings of a violation of standard of care is not supported by substantial evidence but that there is no error in the remaining portions of the board's decision. But see note 7, supra. CT Page 19766
Under § 4-183(j) if the court sustains the appeal it may order a particular agency action under subsection (k) or it may "remand the case for further proceedings." General Statutes § 4-183(j). At oral argument, the plaintiff urged the court, if this situation arose, simply to order the board to vacate its decision. The plaintiff reasoned that the proceedings have already taken about four years and that it would be unjust to prolong them. The difficulty with this position is that the court cannot say why the proceedings have taken so long and, in particular, whether the plaintiff bears some of the responsibility for the delay. Further, the court cannot determine what role the invalid finding of a violation of standard of care played in the board's overall disciplinary plan. Accordingly, the appeal is sustained in part and the court remands the case to the board for further proceedings to determine what discipline to impose on the plaintiff in view of the court's decision.
The next to last sentence of § 4-183(j) provides: "If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings." Subsection (k) states: "If a particular agency action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the agency decision, orders the particular agency action, or orders the agency to take such action as may be necessary to effect the particular action."
It is so ordered.
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