Court Dismisses Attempt to Block Disciplinary
Action against Robban Sica, M.D.


Robban A. Sica, M.D., who operates the Center for the Healing Arts in Orange, Connecticut. is facing disciplinary action for questionable management of about 40 patients. She is charged with improperly using chelation therapy to treat cardiovascular disease, failing to obtain adequate consent for such treatment, and failing to properly manage many of these patients whom she said were suffering from heavy metal toxicity. When Sica learned that the Connecticut Bureau of Health Care Systems was investigating her, she filed a federal court lawsuit charging that she was being unfairly prosecuted. Federal courts will not intervene in ongoing state regulatory matters unless a plaintiff can demonstrate that the state's action is brought in "bad faith" or involves "extraordinary circumstances." Sica charged that she was being unfairly persecuted and that the state's system for physician regulation was severely flawed. However, in October 2004, after considering the meager evidence she presented, a federal judge ruled that the state board procedures would provide Sica with ample opportunity to defend herself and that her argument that Connecticut's regulatory framework was globally flawed was "frivolous." The document below summarizes a longer ruling stated from the bench two days earlier. Quackwatch has additional information on Sica's background.


UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT


ROBBAN A. SICA
         Plaintiff,

v.

STATE OF CONNECTICUT, CONNECTICUT
COMM. OF PUBLIC HEALTH,
J. ROBERT GALVIN, CONNECTICUT
MEDICAL EXAMINING BOARD,
STANLEY PECK, GEORGE TERRANOVA,
PAMELA NOLE, C. STEVEN WOLF,
MARC BAYER, JEFFREY KARDYS,
MARIANNE HORN, DAVID T. TILLES,
and JOLANTA GAWINSKI
          Defendants.


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CIVIL ACTION NO.
3:04-CV-23 (MRK)

 

 

 

 

 

 

FINDINGS OF FACT RE: ALLEGED EXCEPTIONS
TO YOUNGER ABSTENTION

Introduction

Familiarity with the procedural history of this case is presumed. In his ruling on defendants’ motion to dismiss, (Docket # 46), Judge Kravitz concluded that Younger abstention is invoked by plaintiff’s claims for injunctive relief contained in the first, second, seventh and eighth counts of her complaint. See generally, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Judge Kravitz held a final decision on dismissal of these counts in abeyance until an evidentiary inquiry could be conducted to determine whether one of the exceptions to should preclude abstention. The parties consented to the undersigned’s exercise of jurisdiction for the purpose of, both, factual findings related to Younger abstention and plaintiff’s motion for preliminary injunction. (See, Docket # 48).

Discussion

It is well settled that federal courts are typically required "to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings." Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir.2002) (citing Younger, 401 U.S. at 43-44). The doctrine of abstention is founded upon principles of federalism, comity, and mutual respect for state courts. Kern v. Clark, 2004 WL 941418 (W.D.N.Y. Apr 09, 2004).

A federal court must abstain from exercising jurisdiction when the three criteria of Younger are met: (1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims. Diamond "D", 282 F.3d at 198. In the instant case, District Judge Kravitz found the three conditions of Younger met.

Since Judge Kravitz found that Younger criteria have been met, the party seeking to stave  off Younger abstention, here Dr. Sica, must establish that at least one of the two “tightly defined exceptions” applies. Diamond "D", 282 F.3d at 197. They are the “bad faith” and “extraordinary circumstances” exceptions. Judge Kravitz’s ruling sets forth the proof necessary to invoke these exceptions.

The Court held an evidentiary hearing on October 5-6, 2004. The plaintiff called defendants Marianne Horn, Stanley Peck and David Tilles, each of whom is an employee of the Connecticut Department of Public Health, and had some role in bringing disciplinary charges against Dr. Sica. The Court also allowed the plaintiff, over the objections of defendants, to call an expert witness, Dr. Robert Nash.

The Court turns first to the question of whether plaintiff has met her burden of showing bad faith at the evidentiary hearing in this case. The cases analyzing the bad faith exception to Younger state, unambiguously, that the question of whether the federal defendant had an actual subjective bad faith motivation is the “critical... if not determinative of inquiry.” Diamond "D", 282 F.3d at 199, citing, Schlagler v. Phillips, 166 F.3d 439, 442-43 (2d Cir. 1999). In short, Dr. Sica must prove that the one or more of the defendants had an actual illegitimate motive in initiating these proceedings. In this respect, plaintiff has fallen woefully short of her burden of proof. She failed to show that defendants Horn, Peck or Tilles, or any other defendants, were motivated by a desire to harass her. Moreover, there was no evidence presented in this case that the charges filed against her were brought at the behest of Dr. Sica's enemies, or, in any way, to serve a private interest. There was no evidence presented at this hearing whatsoever, regarding those defendants who would serve on the hearing panel and who would actually rule upon the disciplinary charges. None of the defendants had any familiarity with Dr. Sica before initiating this inquiry. The Department of Public Health’s investigation into Dr. Sica was occasioned by receiving information that led to appropriate inquiries. First, the Department received information that Dr. Sica had been the subject of a disciplinary investigation in New York and that she had entered into a consent agreement whereby she agreed to not seek renewal of her physician’s license in that state. Second, the Department received information from the Connecticut Insurance Commissioner that Oxford Health Plans had raised concerns about possible fraudulent, or otherwise unethical, business practices involving Dr. Sica. These communications prompted the Department to conduct research into the nature of Dr. Sica’s practice, and that research revealed an advertisement or website indicating that Dr. Sica’s practice involved EDTA Chelation.

Attorney Tilles, an attorney with the Department of Public Health’s Legal Office of the Bureau of Healthcare Systems, understood that EDTA Chelation was problematic when administered in circumstances outside of very limited circumstances. He was aware of other Departmental disciplinary matters involving EDTA Chelation and had read material on the subject, as well as, consulted with an independent physician expert. Given his knowledge and background, Attorney Tilles was reasonably concerned that Dr. Sica could be engaged in the negligent or incompetent practice of medicine. In the course of the ensuing investigation, Attorney Tilles had three of Dr. Sica’s patients medical charts - patients J.A., E.M. and I. M., reviewed by Dr. Marc Bayer, a physician at the University of Connecticut. [The patients are being identified by their initials to protect their privacy.]  In a letter to Attorney Tilles, Dr. Bayer set forth various reasons for why he believed Dr. Sica’s care was deficient, including: Dr. Sica’s failure to meet the standard of care for the diagnosis and treatment of heavy metal toxicity; Dr. Sica’s administration of excessive doses of EDTA; and Dr. Sica’s failure to identify and abate the sources of heavy metal toxicity. (Letter from Dr. Bayer, dated February 13, 2003, Exhibit 38). Attorney Tilles, who has had substantial medical/legal litigation experience, reviewed approximately twenty-seven (27) other charts, keeping in mind Dr. Bayer’s analysis, and found similar problems. While one could argue that he should have had all of the charts reviewed by Dr. Bayer, Attorney Tilles’ decision not to do so at the time does not evidence bad faith. The charts examined by Dr. Bayer gave rise to the first three counts of the statement of charges against Dr. Sica; the remaining charts are addressed in the fourth count of the charges. While Attorney Tilles conceded he had made certain mistakes with respect to the dates alleged and the number of patients alleged in the fourth count of the statement of charges, the Court finds that those errors are relatively minor and do not evince bad faith. (Exhibit 1).

Plaintiff offered the testimony of Dr. Robert Nash, a physician experienced in the use of EDTA Chelation. Dr. Nash, having analyzed the medical charts at issue, found there may be a defense to some or all of the charges contained therein. However, Dr. Nash's testimony does not remotely establish that the defendants lacked a good faith basis for bringing this inquiry and that there is no chance that the Connecticut Medical Examining Board could fairly find against Dr. Sica. While Dr. Nash may have his own ideological view regarding EDTA Chelation, and what he perceives as the close-mindedness of “mainstream” medicine, it is worth noting that, for instance, he did not find informed consent forms in most of the charts of Dr. Sica’s patients that he reviewed. Though Dr. Sica, through counsel, now claims to have additional executed consent forms, they were unquestionably not provided with the charts Attorney Tilles and Dr. Nash reviewed. Moreover, Dr. Nash acknowledged that the majority of patients had comorbid conditions, including the conditions contained in the statement of charges, in addition to what Dr. Sica and he considered metal toxicity. This testimony actually militates against a finding of bad faith. While most “mainstream” physicians would see Dr. Sica as treating, for example, cardiovascular disease with EDTA Chelation, Drs. Nash and Sica concede only that Dr. Sica was treating toxicity, though the symptoms that brought the patients to Dr. Sica might be related to comorbid conditions. The dispute in this case may involve a philosophical difference, but clearly not bad faith.

The Court finds that the Department's treatment of Dr. Sica appears to be nothing unusual or extraordinary. Plaintiff’s counsel is incorrect about scope of the Department's power to inquire into the conduct of physicians licensed in this state. The undersigned finds that, contrary to acting with animus toward Dr. Sica, Attorney Tilles was fair-minded toward Dr. Sica and her counsel, at times sharing research and appropriately requesting compliance meetings. When Dr. Sica, through her counsel, provided Mr. Tilles with information, he considered the information and did not dismiss it out of hand. Dr. Sica never attended a compliance meeting.

The Court finds that the communications between Attorney Tilles and Dr. Baratz, who has apparently testified elsewhere against EDTA Chelation practices, do not evidence bad faith. Attorney Tilles gave no significant weight to Dr. Baratz’s opinion. Attorney Tilles is not intending to use him as an expert in the hearing. Plaintiff’s allegations regarding Dr. Baratz are simply a “red herring” in this case. There is nothing to suggest improper conduct by Attorney Tilles in this regard.

With respect to the proposed fifth count, which is subject to the defendants’s motion to amend the statement of charges, there is no indication that defendants have filed the proposed charges to serve private interests or for other bad motives. (Exhibit 2). Attorney Tilles did not receive the New Jersey litigation materials that formed the basis of the proposed fifth count until after, both, this federal lawsuit and the initial statement of charges were filed. The timing of the proposed fifth count does not establish retaliation. Moreover, from very early on in her dealings with the Department, it was made clear to Dr. Sica that defendants were interested in potential fraud allegations against her. The materials do indicate there was at least a basis for bringing the charges. Of course, whether fraud allegations will be proved against Dr. Sica is not an issue for this Court.

Also militating against a finding of bad faith is defendants handling of the initial Oxford Health Plan complaint. Upon receipt of information, provided by Dr. Sica’s counsel, that indicated there was not a sufficient basis for disciplinary charges regarding this complaint, the Department declined to charge Dr. Sica with misconduct for the matter raised by Oxford Health Plan.

The undersigned, having heard from defendants Horn, Peck and Tilles, finds that each was credible and believable in all respects. Moreover, the Court notes that the proposed fifth count, is not yet even in the case.

Extraordinary Circumstances

“The very nature of 'extraordinary circumstances,' of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state [administrative] proceedings.” Kern, 2004 WL 941418 at *9. The Supreme Court has twice addressed the question of circumstances that rise to the level of extraordinary circumstances. First, in cases where the state statute to be applied is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Younger, 401 U.S. at 53-54. Second, where the state administrative agency "was incompetent by reason of bias to adjudicate the issues pending before it.” Diamond “D”, 282 8 F.3d at 201 quoting, Gibson v. Berryhill, 411 U.S. 564, 577 (1973). The Court, as discussed above, finds no such incompetency by reason of bias.

Judge Kravitz has already determined that Connecticut state proceedings will provide plaintiff with an adequate forum to litigate her constitutional rights. Indeed, every issue raised here can be addressed administratively and by reviewing courts in the Connecticut judicial system. Plaintiff’s assertion that the Connecticut state statutory scheme governing the licensure and disciplining of physicians is so globally flawed as to give rise to a Younger exception is a frivolous argument. This statutory scheme has been around for a long time, and there have been many cases addressing and upholding the constitutionality of various aspects of it.

“The Younger abstention doctrine embodies "bedrock principles of federalism." Diamond “D”, 282 F.3d at 193. It is based upon "the notion that, in the ordinary course, ‘a state proceeding provides an adequate forum for the vindication of federal constitutional rights.’” Id. (citation omitted). As such, federal intervention in an ongoing state proceeding is an extraordinary remedy that is only justified in a narrow class of cases. Id. The party seeking to obtain that remedy bears the burden of establishing that intervention is warranted.” Kern 2004 WL 941418 at *10, quoting Diamond “D”.

In this case, Plaintiff has not proved that either Younger exception applies. The undersigned finds that, in light of the lack of any evidentiary support for any exception to Younger, abstention is mandatory in this case.

CONCLUSION

The undersigned finds there is insufficient evidentiary support for an application of any exception to the Younger abstention doctrine.

So ordered this 8th day of October, 2004, at Bridgeport, Connecticut.

/S/ William I. Garfinkel
William I. Garfinkel
United States Magistrate Judge

This page was posted on October 30, 2004.