An appellate court in Michigan rejected the due process claims of a physician who argued that, because a certified mailing of a disciplinary complaint against him was returned unclaimed—despite being sent to the correct address—the board could not assume that he had received it.
(In re Ahsan).
In its December 18 decision, the court also held that, while a disciplinary committee of the state’s licensing body had failed to include required findings of fact and law in its final decision, that error did not cause harm to the physician and would thus not invalidate the decision.
After an expert reviewer found several problems while reviewing physician Muhammed Ahsan’s practice files, the Michigan Department of Licensing and Regulatory Affairs filed a disciplinary complaint against him. Although the Department mailed a certified copy of the complaint to Ahsan, the mailing was returned unclaimed. As a result, the physician never responded, and the board moved for a default judgment, fining Ahsan $20,000, suspending his medical license, and voiding his controlled substance license.
Ahsan appealed, claiming that, although the complaint had been sent to the correct address, he never actually received a copy, and thus was denied a chance to respond to the Department’s allegations, a violation of his rights to due process. The case went to the Court of Appeals of Michigan, which issued a decision in favor of the board.
Unfortunately for Ahsan, the court noted that Michigan law does require that delivery of the complaint occur “if the nondelivery was caused by the refusal of the applicant, licensee, or registrant to accept service.” Two notices of the certified mailing were left weeks apart at Ahsan’s address. That, together with other evidence of service was sufficient to show that the complaint had been mailed out and made available to Ahsan. “Respondent’s own failure to claim the envelope, after two notices,” the court wrote, “does not affect the validity of the service.”
And, although Ahsan argued that the Department cannot have assumed that he had the chance to receive the complaint, the court noted that both Michigan judicial precedent and the statute state that delivery is to be assumed three days after the date of mailing. Ahsan was adamant in his claims that he never received the notice, but, because he was unable to provide any evidence to rebut the presumption that the letter had been properly delivered, the presumption stood.
Ahsan argued that the Department, unsure of whether Ahsan had actually received notice of the complaint, should have attempted another form of communication—either in person, over the phone, or through email—to inform him of the pending action. However, state law mandates service by mail only, and the Department “was not required to service respondent by multiple methods simply because he did not claim his mail.”
Last, separately, and with some success, Ahsan challenged the Department’s final order, claiming that the Disciplinary Subcommittee handling his case improperly failed to include required findings of fact and conclusion of law. That final order, “is deficient in several respects,” the court agreed, noting that the order was lacking a “findings of fact” section.
“In such a case as this, where the respondent fails to respond to the complaint,” the judges wrote, “the Disciplinary Subcommittee is entitled to accept the factual allegations of the complaint as true. This does not mean, however, that the Disciplinary Subcommittee is excluded from its responsibility to make factual findings and present those findings in a final order; rather, the focus of those findings merely shifts from the actual allegations of the complaint to the adequacy of service and response.”
Despite that requirement, the Department’s final order did not include any factual findings regarding Ahsan’s apparent refusal of service or any legal conclusions about whether the Department’s mailing was sufficient to show service.
Unfortunately for Ahsan, although he was correct that the Department had erred in drafting his disciplinary order, the court found that the error was harmless, and would not invalidate the Department’s decision. The case record shows that Ahsan was afforded sufficient process, that the Disciplinary Subcommittee was entitled to assume the allegations against him were true, and thus, the court was “constrained to conclude that there was substantial compliance with the statute.”
Having rejected Ahsan’s argument, the court affirmed the Department’s disciplinary decision.