Medical Licensing Bd. of Indiana v. Ward
| Citation | 449 N.E.2d 1129 |
| Decision Date | 09 June 1983 |
| Docket Number | No. 4-282A41,4-282A41 |
| Parties | MEDICAL LICENSING BOARD OF INDIANA, Appellant and Cross-Appellee (Defendant Below), v. Joseph M. WARD, D.C., Appellee and Cross-Appellant (Plaintiff Below). |
| Court | Court of Appeals of Indiana |
Linley E. Pearson, Atty. Gen., Dan S. LaRue, Deputy Atty. Gen., Indianapolis, for appellant and cross-appellee.
Gregory A. Purvis, Kenneth C. Kern & Associates, Indianapolis, for appellee and cross-appellant.
The Medical Licensing Board of Indiana seeks the reversal of a trial court's decision which overturned the Board's revocation of Dr . Joseph M. Ward's license to practice chiropractic. The Board concluded Ward had engaged in "willful or wanton misconduct," in violation of Ind.Code 25-22.5-6-2(6) (West 1980), 1 when he massaged the genitalia of several female patients. Upon Ward's petition for judicial review, the trial court reversed the Board's order, most particularly for insufficiency of the Board's findings, and remanded to the Board for further proceedings, including further evidence (if desired by the Board) and specific findings of fact. We reverse the decision of the trial court, reinstate the Board's order revoking Ward's license, and dissolve the trial court's stay order.
A number of issues are raised for our review by both parties. The Board advocates three issues in urging us to reverse:
1. Certain of the trial court's findings and conclusions of law, primarily alleging the insufficiency of the Board's findings, were contrary to law.
2. Contrary to the trial court's finding, expert testimony is not required to define behavior as "willful or wanton misconduct" in proceedings before the Board.
3. The Board did not commit reversible error when it admitted the complete text of a hearsay document introduced by Ward who claims he offered only a part thereof.
In his cross-appeal, Ward sets forth alternative grounds for affirmance, claiming:
4. He was entitled to reversal for the Board's failure to timely file its Findings of Facts.
5. The Board violated his right to due process by revoking his license on the basis of facts differing from those contained in the statement of charges.
Ward further contests the trial court's order of remand to the Board for further proceedings and, in doing so, argues the following additional grounds for affirmance:
6. The trial court improperly remanded the matter to the Board for further proceedings when Ward had presented to the court several grounds for permanently disposing of his case without remand:
(a) The language, "willful or wanton misconduct," found in IC 25-22.5-6-2(6) is unconstitutionally vague. 2
(b) Ward was denied his due process rights because the Board was not a fair and impartial tribunal for hearing charges against chiropractors.
(c) The Board exceeded its statutory authority by unlawfully attempting to limit the scope of chiropractic beyond the restraints of Ind.Code 25-10-1-8 (West 1980) (repealed 1981 Ind.Acts, P.L. 222, Sec. 296).
7. This appeal by the Board is moot inasmuch as its authority over chiropractors ended on July 1, 1982, with the creation of a board of chiropractic examiners.
In April, 1980, the Board served a notice of hearing and a statement of charges against Ward, alleging willful or wanton misconduct in the practice of medicine in violation of IC 25-22.5-6-2(6) as incorporated by Ind.Code 25-10-1-6 (West 1980) (amended 1981 Ind.Acts, P.L. 222, Sec. 107). The acts underlying the alleged misconduct involved four of Ward's female patients, each of whom claimed Ward had administered to them unjustifiable treatment, without warning, explanation or permission, under the guise of chiropractic, to-wit: massaging with hand or vibrator (in various combinations) the stomach, vagina, groin, buttocks, and/or breasts, of the complaining patients.
The attorney general elicited the following testimony at the hearing from the four female witnesses (the evidence, as written here, paraphrases the testimony but employs some terminology and colloquialisms of each witness):
Brenda ____________ testified a friend recommended Ward to her for treatment of a backache. On her arrival, she introduced herself to Ward who was alone in his office. Ward told her to disrobe and furnished her with a gown. As Brenda still wore her underpants, Ward removed them himself and set them on the windowsill. Ward proceeded to manipulate and rub her feet, legs and arms, all the while murmuring that women do not know how to relax anymore. He then instructed her to turn and lie on her back whereupon he drew her gown above her stomach and proceeded to massage her stomach with a hand vibrator. When he put his vibrating hand over her clitoris, she demanded to know what the hell he thought he was doing. He stated he was trying to relax her stomach muscles.
Sharon ____________ went to Ward complaining of aching in her lower left back. During the course of treating her spine, Ward slipped his hand under her gown, inserted his fingers under the band of her underpants, and ran his thumb across her vagina. He stopped when she told him he did not need to do that. Additionally, Ward admitted using a vibrator in the groin area. Sharon's son was present in the treatment room but was unaware of Ward's behavior.
Carol ____________, suffering from rheumatoid arthritis, went to Ward because her left hip was hurting. Her husband accompanied her, but she was alone with Ward during treatment. The offending conduct occurred when Ward's fingers went into Carol's pants and he ran his hand casually across her vagina for about two seconds. He then pushed his thumb hard into her Rebecca ____________, the last complaining witness, was suffering from intense pain in her neck and shoulders when she went to Ward. She took off all her clothes as he instructed her and put on a gown . Her treatment was conducted with a hand vibrator and included massaging both her breasts through her gown. The massage continued down her body until Ward's hand stopped between her legs on her vagina, the vibrator continuing to operate through the gown. Rebecca was alone with Ward throughout this procedure and, because of her small size, experienced a certain amount of apprehension during the treatment.
groin area and, according to the investigative report read into evidence as part of Ward's case, continued to massage her vagina. As Carol dressed to leave, she discovered a two-inch gash in her groin bleeding profusely.
Dr. David Harp, a licensed chiropractor, was called as an expert witness by the attorney general and testified that, in his professional opinion, there was no justification for a chiropractor licensed in Indiana to touch in any way a female patient's vagina or breasts and that he knew of no chiropractic method of adjusting a patient's spinal column which would require touching the genitalia. Ward claims his case was also damaged when Fred Davis, an investigator for the Board, read aloud part of one of the Board's investigative reports. A portion of Davis's report had been read during Ward's case-in-chief for the purpose of impeaching Brenda. Ward objected, on grounds of hearsay, when the attorney general requested Davis read the rest of the report, which part included a statement from another chiropractor that he had the names of 17 other women who had called him with similar complaints about Ward. Thereafter, Ward himself proposed that the whole report be admitted "over my objection." Ward produced several of his other female patients as character witnesses and testified on his own behalf, at times refuting the testimony of the complaining witnesses and at other times agreeing, but in all instances asserting his treatments were in accordance with chiropractic principles and not sexually motivated.
Ward received the Board's notice of its decision on October 18, 1980, and he petitioned the trial court for judicial review on October 20, 1980. A receipt for certified mail in the record shows Ward evidently received the Board's final order on October 23, 1980, which order unanimously revoked Ward's license and contained the following findings of fact and conclusions of law:
"1) The Respondent, Joseph M. Ward, D.C., holds a valid license to practice Chiropractic, Number 96.
2) The Respondent, Joseph M. Ward, D.C., maintains a chiropractic office at 2206 College Avenue, Terre Haute, Indiana 47803.
3) On August 7, 1979, Respondent, Joseph M. Ward, D.C., treated Brenda [____________] at his office. [Brenda] was complaining of back pain.
4) Respondent's treatment of [Brenda] included the massaging with a mechanical vibrator of her unclothed stomach and genitalia.
5) No justification existed for such a chiropractic treatment.
6) In July, 1978, Respondent, in his said office, treated Sharon [____________] who had complained of pain in her back.
7) Respondent's treatment of [Sharon] included the massaging of her genitalia.
8) No justification existed for such a chiropractic treatment.
9) In August, 1977, Respondent, treated Carol [____________] and during the course of treatment Respondent proceeded to massage her genitalia with his hand and a mechanical vibrator, after [Carol] had complained of pain in her back.
10) No justification existed for such a chiropractic treatment.
11) In April, 1976, Respondent, treated Rebecca [____] and during the course of treatment he proceeded to massage her breasts and genitalia after [Rebecca] had complained of pain in her neck and shoulder.
12) No justification existed for such a chiropractic treatment.
13) At no time did the Respondent inform his aforementioned patients in advance that he would massage the aforesaid areas of their bodies.
Based upon the preceding Findings of Fact, the Board now makes the following Conclusions of Law:
1) The aforementioned acts of the Respondent, Joseph M. Ward, D.C., constitute 'willful or wanton misconduct' in the...
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