STATE OF NEW HAMPSHIRE MERRIMACK, SS. SUPERIOR COURT Docket No. ANNA KONOPKA V. MEDICAL BOARD MOTION TO DISMISS The Respondent, New Hampshire Board of Medicine (Board), by and through its counsel, the Of?ce of the Attorney General, hereby submits this motion to dismiss and in support thereof states as follows: I. INTRODUCTION 1. The New Hampshire general court has given the Board of Medicine the primary responsibility of protecting the public from the unprofessional, improper, incompetent, unlawful and deceptive practice of medicine. See RSA 329:1-aa. 2. In carrying out that responsibility the Board is authorized, through its medical review subcommittee (MRSC), and pursuant to RSA 329: 18, to investigate the possible misconduct of a licensee and then to discipline such a licensee for inter alia, ?display[ing] medical practice which is incompatible with the basic knowledge and competence expected? of those practicing; or being ?repeatedly negligent in practicing medicine or in performing activities ancillary to the practice of medicine. . . RSA 329217, VI (0), see also N.H. Admin R. Med 206 and 210 et.seq. 3. At any time the Board may dispose of allegations in a complaint to the Board through a settlement, without commencing a disciplinary hearing. See RSA 329:18-a, RSA 541-A138, 541-A231, 4. The Petitioner in this case, Anna Konopka, MD, is a licensee with the Board and has been since April 16, 1968; holding license number 4245. She brings this action in an apparent effort to stop the Board from carrying out a Voluntary Surrender negotiated and entered into by her, with the advice and assistance of counsel, on September 12, 2017. See Exhibit A. 5. Petitioner now claims, with no support, that she was ?under multiple duress? when she agreed to voluntarily surrender her license as of October 13, 2017 and wind down the business aspect of the practice by October 27, 2017. See Motion for Exparte Hearing, p.1; see also Exhibit A, 11111 and 2. 6. Petitioner?s action must be dismissed as there is no legal basis on which she can achieve a remedy. The action is no more that Petitioner?s ?second thought? or remorseful misgivings about her voluntarily giving up an almost 50 year medical career. 7. The voluntary surrender entered into by Petitioner with the advice of a well-respected and long-term New Hampshire attorney, Michael Pignatelli, Esq., is one that was carefully negotiated by Attorney Pignatelli, Petitioner, and the Administrative Prosecution Unit (APU) of the Attorney General?s Of?ce. 8. It was based on information (Reports of Investigation) supplied to Petitioner and Attorney Pignatelli relating to a series of complaints ?led with the Board, to which Petitioner was able to dispute, deny and then come to the negotiated settlement. 9. Petitioner, after signing the agreement, never approached the Board in an attempt to withdraw the agreement; rather, she waited almost three weeks and ?led this pro se motion in an effort to negate the negotiated arrangement. 10. There is no cause of action here. Indeed, no civil action can be maintained against the Board or any member of the Board with regard to an activity taken in the performance of the Board?s statutorily authorized conduct. See RSA 329:17, IX. 11. Likewise, this is not an appeal of an administrative decision; as such an appeal would go directly to the Supreme Court. See RSA 541:6 applicant may appeal by petition to the supreme court . . . (emphasis added)). At best Plaintiff is seeking injunctive relief for this court to overturn or nullify a Board accepted and approved voluntary surrender. 12. Petitioner has not argued that she was prevented from exercising her rights in any extraordinary way, or that she was misled about some fact. To the contrary, it appears that Petitioner merely had a ?change of heart? or case of ?buyer?s remorse.? II. FACTUAL BACKGROUND 13. By all accounts, Petitioner had an unblemished medical career in New Hampshire until a complaint was lodged against her in October 2014 with regard to prescribing practices for the treatment of an adolescent. In response to the complaint the Board, through its MRSC, investigated the complaint and thereafter issued a disciplinary notice of hearing. 14. Petitioner, rather than going forward with the hearing entered a consent decree with the APU, after negotiations with her own counsel, Attorney Pignatelli. The decree, attached as Exhibit B, was signed on April 24, 2017 and accepted by the Board on May 12, 2017. The effect of the decree was a Board reprimand. 15. Subsequent to that action, the Board was made aware of four additional complaints which were investigated by the MRSC in early 2017 and sent to the Board for determination as to whether the Board would proceed with discipline. See RSA 329217, V-a; see also N.H. Admin R. Med 205.03. Until a notice of hearing is issued, any investigation is kept con?dential. RSA 329: 18, I. 16. At its September 6, 2017 meeting the Board voted to move forward with discipline pursuant to RSA 329:18-b, based on the investigatory ?ndings, and for an order of notice to issue by September 13, 2017. As a result of that vote the APU entered negotiations with Petitioner and her counsel. See 6. g. N.H. Admin. R. Med 202.02. The voluntary surrender resulted, and was accepted by the Board, retroactively as of September 6thl for license termination as of October 13th. 17. Neither the Petitioner nor her counsel have submitted anything to the board that moves to rescind or retract the agreement or that indicates Petitioner was coerced into making the agreement, or that it was a product of mistake. ANALYSIS A. Petitioner Failed to Exhaust her Administrative Remedies 18. As a preliminary matter had the Petitioner believed that her agreement was the product of coercion or duress she could have filed with the Board rescinding her agreement, articulating the rationale behind the claimed duress, and asking for a hearing. The Board would have then had the option to issue the notice of hearing on an emergency 1 The Board met at its regular meeting on September 6th and voted relative to moving forward with discipline and met in a special meeting on September 12th relative to accepting the agreement. 4 suspension and move forward with a public disciplinary hearing on the matter. See N.H. Admin. R. Med 206.02; RSA 329: 18; and :18?b. 19. This exhaustion of her administrative remedies would have properly set the stage for any appropriate remedy. See e. g. Konefal v. Hollis/Brookline Coop. Sch. Dist, 143 NH. 256 (1998) (a party?s administrative remedies must be exhausted when the question involves the proper exercise of administrative discretion). 20. Such exhaustion ?is based on the reasonable policies of encouraging the exercise of administrative expertise, preserving agency autonomy and promoting judicial efficiency.? 1d, at 258. 21. Here, there is no argument that such a motion to the Board would have been futile. Indeed, had Plaintiff not entered the agreement the procedural steps outlined above and in the Board?s rules and statutes would have been utilized in moving forward with a disciplinary hearing, and Petitioner would not have been able to see patients pending the outcome of the disciplinary hearing or another negotiated settlement, without the benefit of winding down her practice. B. The Petition Fails to State a Claim for Which Reliefis Available 22. In ruling on a motion to dismiss the court must determine whether the ?allegations are reasonably susceptible of a construction that would permit recovery.? Harrington v. Brooks Drugs, Inc, 148 NH. 101, 104 (2002). 23. In this case it is dif?cult to discern what Petitioner is actually trying to achieve. To the extent she is claiming that she was forced to enter an agreement to end her medical practice such that it should be voided, Petitioner has not alleged a cognizable claim. 24. It appears she is attempting to nullify an agreement by suggesting that it is not a product of her own free will. While a contract entered into under duress is voidable; (see eg. In re Estate ofHollen?, 150 NH. 39, 42 (2002)), Petitioner, provides no facts which suggest that she felt taken advantage of or that she was unclear on why she was being asked to voluntarily surrender her license. Instead, she makes the conclusory statement that there was ?multiple duress.? Likewise, Petitioner took no action with the Board to set it aside. Rather she asks the court to allow her to keep seeing patients, in other words she seeks rescission of the agreement. 25. To establish duress, ?the petitioner must establish that it involuntarily accepted the other party?s terms, that the coercive circumstances were a result of the other party?s acts, that the other party exercised pressure wrongfully, and that under the circumstances the party had no alternative but to accept the other party?s terms.? In re Yannalfo, 147 NH. 597, 599. 26. Nowhere does Petitioner suggest, let alone specify any coercive circumstances which were used to force her to surrender her license. If there was any ultimatum, it was nothing more than to agree to the surrender or face a public disciplinary proceeding which will allege numerous acts that demonstrate signi?cant de?ciencies in her medical practice. 27. Moreover, Petitioner has articulated no wrongful pressure on the part of the Board or the APU. Petitioner had the opportunity to discuss the agreement with counsel, the opportunity to review the allegations and evidence against her, the previous ability to present her own comments about the allegations to the Board?s investigator, and a week in which to decide to go forward with a hearing or surrender the license. 28. There is no doubt that such a decision is dif?cult for an individual who has been a practicing physician for 49 years, but there is no fact or circumstance which makes out a claim of duress The agreement, as such, is valid and there is no claim upon which relief can be granted. WHEREFORE, the Defendant respectfully requests that this Honorable Court: A. Grant this motion to dismiss; and B. Grant such further relief as may be deemed just and proper. Respectfully submitted, MEDICAL BOARD By its attorney, GORDON J. MACDONALD ATTORNEY GENERAL Date: October 27, 2017 i nmarie C. Cusack, Bar #11266 Senior Assistant Attorney General Civil Bureau 33 Capitol Street Concord, NH 03301?6397 (603) 271-3650 lynmarie.cusack@d0j.nh. gov CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was sent this 27th day of October 2017, postage prepaid, to: Anna Konopka, MD 92 Bunker Road New London, NH 03257 96,le Wmarie vii/C Cusack Before the EXHIBIT New Hampshire Board of Medicine Concord, New Hampshire 03301 In the Matter of: Anna M. Konopka, M.D., D.P .A.A.P. Licensee No.2 4254' VOLUNTARY SURRENDER OF LICENSE In order to avoid the delay and expense of further proceedings before the New Hampshire Board of Medicine (?Board?), 1, Anna M. Konopka, M.D., D.P., F.A.A.P, per Med 412.03, do hereby voluntarily surrender my New Hampshire license (#4254) to practice medicine, effective on October 13, 2017. By voluntarily surrendering my license, I understand that: 1. I relinquish all rights and privileges to practice medicine in the State of New Hampshire as of October 13, 2017. The additional time is to allow me to provide scheduled and emergency treatment. 2. After October 13, 2017, I can no longer legally treat any patients in New Hampshire, to include, but not limited to, examining and diagnosing patients and prescribing any medications to patients. 3. I may take until October 27, 2017 to wind up my practice, facilitate any referrals of patients to a new provider and the transfer of patient records, and notify my patients that as of October 13, 2017, I am no longer practicing medicine in New Hampshire. New Hampshire Board of Medicine In the Matter ofArma M. Konopka, MD, D.P., RA.A.P. Voluntary Surrender of License 4. The Board has commenced an investigation into my practice pursuant to RSA 329:18, but a notice of hearing has not issued as of the date that I sign this document. This license surrender has occurred in settlement of pending allegations regarding my record keeping, prescribing practices and medical decision making. I dispute the pending allegations and admit to no violations of RSA 329:17, VI or any administrative rules or ethics provisions adopted by the Board. Should I again seek licensure in the State of New Hampshire, I must meet, and shall bear the burden of proving compliance with, all of the standards and prerequisites then required by the Board for new applicants, including professional character requirements. The pending allegations shall be resolved in any future licensure application I may submit in New Hampshire. I hereby speci?cally waive any statute of limitations or laches defense, which might then be available, including, but not limited to, those based on RSA and 9. I also waive any potential issues regarding a lack of a speedy hearing or spoliation of the evidence. Once this this document goes into effect, it will be reported as discipline and distributed to all relevant licensing authorities and professional societies in the same manner as a ?nal decision making speci?c ?ndings of professional misconduct. Page 2 of 4 New Hampshire Board of Medicine In the Matter ofAnna M. Konopka, MD, D.P., Voluntary Surrender of License 10. This document shall become a permanent part of my ?le, and will be maintained by the Board as a public document. 11. I voluntarily submit this surrender of license to the Board and state that no promises or representations have been made to me other than those terms and conditions expressly stated herein. 12. I have had the opportunity to seek and obtain the advice of an attorney of my choosing in connection with my decision to sign this document. 13. I am of sound mind and not under the in?uence of any substance that would impair my judgment at the time I sign this document. FOR RESPONDENT KW Anna M. Konopka W., D. F. A. A. P. Date /Michael A. Pignatei? Esq. Counsel for Respondent Page 3 of 4 New Hampshire Board of Medicine In the Matter ofAnnaM. Konopka, MD, D.P., FA.A.P. Voluntary Surrender of License FOR THE BOARD THE day of? Me 4 2017. Date: 7'60/90/7 Hi?? 6! Li 1' MIL (Signature) (7 i MN "m UL (Print or Type manic) Autherized? Representative of the New Hampshire Board of Medicine Board members not participating: Frame 73M 1H :51. p17. Page 4 of 4 STA o' State of New Hampshire 29Board of Medicine ?4 Concord, New Hampshire 03301 EXHIBIT In the Matter of: Anna M. Konuplca, F.A.A.P. License No.: me? 42"! (Misconduct Allegations) CONSENT DECREE In order to avoid the delay and expense of ?lrther proceedings and to promote the best interests of the public and the practice of medicine, the New Hampshire Board of Medicine (?Board?) and Anna M. Konopka, M.D., D.P., F.A.A.P. Konopka? or ??Respondent?), a physician licensed by the Board, do hereby stipulate and agree to resolve certain allegations of professional misconduct now pending before the Board according to the following terms and conditions: 3 1. Pursuant to RSA 329217, 1; RSA 329:18; RSA 329:18-a; and Medical Administrative Rule 206 and 210, the Board has jurisdiction to investigate and adjudicate allegations of professional misconduct committed by physicians. Pursuant to RSA 329:18-a, the Board may, at any time, dispose of such allegations by settlement and without commencing a disciplinary hearing. 2. The Board ?rst granted Respondent a license to practice medicine in the Stalepl? New @245 as; Hampshire on April 16, 1968. Respondent holds license number . . Respondent practices pediatric medicine at her private practice in New London, New Hampshire. 3. On October 14, 2014 the Board received a complaint alleging, in part, improper prescribing practices by Respondent with regard to a speci?c child patient. NH. Board of Medicine and Anna Konopka, MD, D.P., FA.A.P. Settlement Agreement 4. In response to this, the Board conducted an investigation and obtained information from various sources pertaining to Respondent?s treatment and prescribing practices towards this child patient. 5. On April 13, 2016, the Board issued a Notice of Hearing. The hearing was originally scheduled to take place on September 7, 2016, but was continued twice due to scheduling con?icts. 6. While Respondent denies the allegations of misconduct, she stipulates that if a disciplinary hearing were to take place, Hearing Counsel may present evidence of the following facts upon which the Board could conclude that Respondent engaged in professional misconduct in violation of RSA 329217, VI (0) and A. Respondent treated Patient JM from age eighteen (18) months to seven (7) years. Patient JM suffered from asthma and was treated with D?examenthasone, and Albuterol. B. On many occasions Respondent prescribed Albuterol twice a day or as needed. C. Respondent rarely noted Patient weight in the record when prescribing and generally left dosing up to Patient parents. Respondent also never tested Patient levels. D. Respondent did not attempt to treat Patient with a daily inhaled steroid. E. On several occasions, Respondent prescribed Patient JM aspirin to help reduce fever and treat other ailments, even though aspirin is not recommended for children with asthma. NH. Board ofMedicine and/Inna M. Konopka, MD, D.P., F.A.A.P Settlement Agreement On September 16, 2014, Patient JM (then seven years old) presented at Respondent?s practice with fever and bronchitis after three days of home treatment by the mother. Following a physical examination of Patient JM, Respondent noted tachycardia and cardiac which Respondent speculated was caused by an excess of Albuterol. Following the physical examination Respondent discontinued the prescription of Albuterol and prescribed Patient JM Digoxin 0.125mg po BID #15 along with and Amoxicillin. Respondent failed to con?rm her diagnosis by ordering any additional tests, or consulting with a pediatric cardiologist prior to prescribing Digoxin. 7. The Board ?nds that Respondent committed the acts as described above in violation 329217, VI and 8. Respondent acknowledges that the above described conduct would constitute grounds for the Board to impose disciplinary sanctions against her license to practice as a physician in the State of New Hampshire. 9. Respondent consents to the Board imposing the following discipline, pursuant to RSA 329217, VII: A. B. Respondent is REPRIMANDED. Respondent is required to meaningfully participate in fourteen (14) hours of CONTINUING MEDICAL EDUCATION consisting of six (6) hours in the area of pediatric asthma, four (4) hours in the area of primary care pharmacology, and four (4) hours in the area of pediatric cardiology. These NH. Board ofMedtcine andAnna M. Konopka, MD, D. P., F.A.A.P. Settlement Agreement hours shall be in addition to the hours required by the Board for renewal of licensure and shall be completed within six (6) months from the effective date of this Consent Decree. Within ?fteen (15) days of completing these hours, Respondent shall notify the Board and provide written proof of completion. Respondent may apply the four (4) credits earned from a continuing medical education course, ?2017 Pediatric Asthma Allergy Updates for Primary Care Providers,? taken on March 17, 2017, toward the hours required for continuing education in the area of pediatric asthma. C. Respondent must read Section 3, Component 4 (Medications), Section 4 (Managing Asthma Long Term: Overview, in Children, in Youths, and in Special Situations), and Section 5 (Managing Exacerbations of Asthma) of the National Heart, Lung, and Blood Institute?s ?Expert Panel Report 3: Guidelines for the Diagnosis and Management of Asthma? (?Panel Report?). Respondent must read the above referenced portions of the Panel Report within six (6) months from the effective date of this Consent Decree and then, within ?fteen (15) days of doing so, certify in writing to the Board that she has completed this requirement. Completion of this requirement shall count as two (2) hours towards the hours required for continuing education in the area of pediatric asthma in Paragraph 9B of this Consent Decree, regardless of the amount of time it takes Respondent to read the above referenced portions of the Panel Report. N. H. Board of Medicine and Anna M. Konopka. MD, D. P., F.A.A.P. Settlement Agreement 10. 11. D. For as long as she is licensed by this Board, Respondent must refer any diagnosed pediatric cardiac cases to a quali?ed pediatric cardiologist prior to providing any non-life sustaining treatment in such cases. Within ten (10) days of the effective date of this agreement, as de?ned further below, Respondent shall furnish a copy of this Consent Decree to any current employer for whom Respondent performs services as a physician or work which requires a medical degree and/or medical license or directly or indirectly involves patient care, and to any agency or authority which licenses, certi?es or credentials physicians, with which Respondent is presently af?liated. For a continuing period of one (1) year from the effective date of this agreement, Respondent shall furnish a copy of this Consent Decree to any employer to which Respondent may apply for work as a physician or for work in any capacity which requires a medical degree and/or medical license or directly or indirectly involves patient care, and to any agency or authority that licenses, certi?es or credentials sicians, to which Res ondent rna a pp for any such professional privileges or recognition. Respondent?s breach of any terms or conditions of this Consent Decree shall constitute unprofessional conduct pursuant to RSA 329117, VI and a separate and suf?cient basis for further disciplinary action by the Board. Except as provided herein, this Consent Decree shall bar the commencement of further disciplinary action by the Board based upon the misconduct described above. NH. Board of Medicine and Anna M. Konopka. MD, D. P., F.A.A.P Settlement Agreement 12. 13. 14. 15. 16. 17. However, the Board may consider this misconduct as evidence of a pattern of conduct in the event that similar misconduct is proven against Respondent in the future. Additionally, the Board may consider the fact that discipline was imposed by this Order as a factor in determining appropriate discipline should any further misconduct be proven against Respondent in the future. This Consent Decree shall become a permanent part of Respondent?s ?le, which is maintained by the Board as a public document. Respondent voluntarily enters into and signs this Consent Decree and states that no promises or representations have been made to her other than those terms and conditions expressly stated herein. The Board agrees that in return for Respondent executing this Consent Decree, the Board will not proceed with the formal adjudicatory process based upon the facts described herein. Respondent understands that her action in entering into this Consent Decree is a ?nal act and not subject to reconsideration or judicial review or appeal. Respondent has had the opportunity to seek and obtain the advice of an attorney of her choosing in connection with her decision to enter into this agreement. Respondent understands that the Board must review and accept the terms of this Consent Decree. If the Board rejects any portion, the entire Consent Decree shall be null and void. Respondent speci?cally waives any claims that any disclosures made to the Board during its review of this Consent Decree have prejudiced her right to a NH. Board ofMedicine andAnna Konopka, MD, D.P., F.A.A.P. Settlement Agreement fair and impartial hearing in the future if this Consent Decree is not accepted by the Board. 18. Respondent is not under the in?uence of any drugs or alcohol at the time she signs this Consent Decree. l9. Respondent certi?es that she has read this document titled Consent Decree. Respondent understands that she has the right to a formal adjudicatory hearing concerning this matter and that at said hearing she would possess the rights to confront and cross-examine witnesses, to call witnesses, to present evidence, to testify on her own behalf, to contest the allegations, to present oral argument, and to appeal to the courts. Further, Respondent fully understands the nature, qualities and dimensions of these rights. Respondent understands that by signing this Consent Decree, she waives these rights as they pertain to the misconduct described herein. 20. This Consent Decree shall take effect as an Order of the Board on the date it is signed by an authorized representative of the Board. FOR RESPONDENT Date: Anna M. KonopkaRespondent EX, RECEWEB NH. Board of Medicine and Anna M. Konopka, MD, D. P.. F.A.A.P. MAY 0 3 2017 Settlement Agreement NH BOARD FOR THE This proceeding is hereby terminated in accordance with the binding terms and conditions set fo'rth above. Datezj: 7 /[W?l7 (Signature) [Print or Tvpe Narhe) Authorized Representative of the New Hampshire Board of Medicine t*Bnard membei realised: entail/1: minim. Din-21d. in MD