Chock v. Bitterman, s. 9086

• Decision Date: 01 March 1984
• Docket Number: 9193,Nos. 9086,s. 9086
• Citation: 678 P.2d 576,5 Haw.App. 59
• Parties: Wah Tim CHOCK, M.D., Appellant, v. Mary G.F. BITTERMAN, Director of Department of Regulatory Agencies, and Board of Medical Examiners, State of Hawaii, Appellees.
• Court: Hawaii Court of Appeals

Page 576

678 P.2d 576

5 Haw.App. 59

Wah Tim CHOCK, M.D., Appellant, v. Mary G.F. BITTERMAN, Director of Department of Regulatory Agencies, and Board of Medical Examiners, State of Hawaii, Appellees.

Nos. 9086, 9193.

Intermediate Court of Appeals of Hawai'i.

March 1, 1984.

Syllabus by the Court

1. The applicable standards of review of an administrative agency's decision by a circuit court are the standards set forth in Hawaii Revised Statutes (HRS) § 91-14(g).

2. An appellate court's review of a circuit court's review of an administrative agency's decision is based on the right/wrong standard. In order to determine whether the circuit court was right or wrong, the appellate court will apply the standards set forth in HRS § 91-14(g) to the agency's decision.

3. The admission of irrelevant or incompetent evidence by an administrative agency does not constitute reversible error if there is substantial evidence in the record to sustain the agency's determination.

4. In a disciplinary action brought by the Board of Medical Examiners, the subject physician does not have an absolute right to discovery. The Board's duly appointed hearing officer has the discretion to order discovery and his decision will not be set aside absent a clear abuse of discretion.

5. The requirements of HRS § 91-11 that all members of the board who will render a decision "shall personally consider ... such portions [of the record] thereof as may be cited by the parties" is satisfied where such members considered exceptions to the proposed decision and heard arguments thereon.

6. Where an administrative agency has decided an issue, the participation of a disqualified member in the decision will not invalidate the result where a majority exists without the vote of that disqualified member.

7. The statute authorizing the Board of Medical Examiners to conduct disciplinary proceedings against physicians, HRS chapter 453, does not establish a limitation period for the institution of such proceedings and the general statutes of limitation are not a bar because of the public interest involved. In such case, laches may be applicable but is not imputed from the mere passage of time absent some showing of prejudice.

Edward Y.N. Kim, Honolulu (Kim & Kim, Honolulu, of counsel), for appellant.

Russell W.O. Lum, Deputy Atty. Gen., Honolulu (Donna Tanoue, Sp. Deputy Atty. Gen., Honolulu, on brief), for appellees.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

In this consolidated appeal (Nos. 9086 and 9193) Dr. Wah Tim Chock (Appellant) seeks appellate review of the circuit court's decision: (1) affirming the Board of Medical Examiners' (Board) final order suspending Appellant's medical license for five years and (2) denying his motions to reconsider and to set aside the court's order.

Appellant raises the following issues on appeal: (1) whether the Board's findings of fact are clearly erroneous; (2) whether the hearing officer's denial of discovery adversely affected the Appellant's rights; (3) whether the Board adequately examined the record of the hearing officer prior to rendering its final order; (4) whether certain members of the Board were disqualified from participating in the final decision and order; and (5) whether Appellant was adversely affected by an unreasonable delay in the filing of the complaint. We find no error and affirm.

FACTS

Appellant was duly licensed to practice medicine and surgery in the State of Hawaii in January 1944 pursuant to Hawaii Revised Statutes (HRS) chapter 453 (1976).

On July 5, 1976, a minor male, "CA", age 5, was admitted to then Kauikeolani Children's Hospital (Hospital). The next day, July 6, two other minor males, "RA" (CA's younger brother), age 2 and "DA" (first cousin to CA and RA), age 4, were also admitted to the Hospital.

The three children had all been under the care of Appellant beginning at or soon after their respective births and continuing until just prior to their being hospitalized. Under Appellant's direction, the children were orally administered 5 mg. of steroid prednisolone daily for allergic rhinitis (hay fever). ¹ In June 1976, all three children contracted varicella (chicken pox), whereupon Appellant ordered the prednisolone intake stopped immediately. The children became ill and were admitted to the Hospital, where they were examined by Scott T. Himeda, M.D., Robert Wilkinson, M.D., and Robert D. Bart, Jr., M.D. ² The concurring diagnosis by the three doctors was that all three children were suffering from steroid complications.

In September 1976, the Hospital Peer Review Committee informed Appellant of its intention to suspend his privileges at the Hospital for the "inappropriate use" of prednisolone, which had resulted in the hospitalization of the children with the steroid complications. On December 21, 1976, Appellant was notified by the Board that the peer review decision had been filed with them and was being reviewed. ³

On December 14, 1977, the Board decided to proceed with a disciplinary hearing pursuant to HRS § 453-8 (1976, as amended), and requested the State Attorney General to initiate such proceeding. On August 19, 1980, the Attorney General initiated proceedings by filing a verified petition to revoke, limit, or suspend Appellant's medical license. The petition alleged that Appellant violated HRS §§ 453-8(10) and (12). At that time, HRS § 453-8 ⁴ provided in pertinent part as follows:

Revocation, limitation or suspension of licenses. Any license to practice medicine and surgery may be revoked, limited, or suspended by the board of medical examiners at any time in a proceeding before the board for any one or more of the following acts or conditions on the part of the holder of such license:

....

(10) Professional misconduct or gross carelessness or manifest incapacity in the practice of medicine or surgery;

....

(12) Consistently utilizing medical services or treatment which is inappropriate or unnecessary[.]

The Board appointed a hearing officer in accordance with Rules 3.31(a) and 3.33, Rules and Regulations of the Board of Medical Examiners (RRBME) (1979), to conduct a hearing and submit written findings of fact, conclusions of law, and a recommended decision.

After some delay caused by numerous discovery requests, objections, pre-trial conferences and continuances, the hearing was held on April 27 and April 28, 1981. During the hearing, the State called and examined Dr. Himeda and Dr. Wilkinson. Appellant did not call any witnesses although he had filed two lists naming at least ten defense witnesses. Instead, Appellant relied solely upon cross-examination of the State's witnesses and procedural defenses.

On June 29, 1981, the hearing officer submitted to the Board his findings of fact, conclusions of law, and proposed decision recommending that the Board dismiss the HRS § 453-8(10) charge but uphold the HRS § 453-8(12) charge for administering inappropriate medical treatment. The hearing officer further recommended that Appellant's medical license be suspended for not less than one (1) year, although the suspension could be reduced upon compliance with certain terms and conditions.

Appellant, in accordance with HRS § 91-11, filed written exceptions to the hearing officer's findings of fact, conclusions of law and recommended order. In response, the State filed a memorandum in support of the hearing officer's findings and conclusions. On October 21, 1981, the Board heard oral argument on Appellant's exceptions.

On December 16, 1981, the Board issued a final order adopting the hearing officer's findings of fact and conclusions of law but ordered Appellant's license suspended for a period of five (5) years subject to reduction upon compliance with certain terms and conditions.

On January 15, 1982, Appellant appealed the Board's order to the circuit court. Hearings were conducted on August 5 and 19, 1982. On August 27, 1982, Appellant filed a motion asking the court to reconsider the arguments he had made regarding the authority of some of the Board members to act in this matter. The court entered its order affirming the Board on September 28, 1982. On October 6, 1982, Appellant moved to set aside the September 28 order on the grounds that it was premature because his motion for reconsideration had not been heard and that the matter was stayed by his filing of a petition for writ of mandamus in the supreme court on August 24, 1982. On October 26, 1982, Appellant filed a notice of appeal from the September 28 order. On January 4, 1983, the court denied both motions and Appellant filed a notice of appeal of that order on January 11, 1983. Although Appellant's various motions and notices of appeal have created some confusion regarding appellate jurisdiction, we do have jurisdiction.

Since Appellant has not included the denial of his motions to reconsider and set aside as error by the court in his statement of points on appeal, in violation of Rule 3(b)(5), Rules of the Supreme Court (RSC) (1983), and has not argued those matters in his brief, we will not consider the issue. Bloudell v. Wailuku Sugar Co., 4 Haw.App. 498, 669 P.2d 163 (1983); John Wilson Enterprises, Ltd. v. Carrier Terminal Service, Inc., 2 Haw.App. 128, 627 P.2d 294 (1981); City and County of Honolulu v. Manoa Investment Co., 1 Haw.App. 52, 613 P.2d 662 (1980).

Further, we hold that Appellant's motion to reconsider was nothing more than an attempt to renew arguments already made to the court and was not authorized by the Hawaii Rules of Civil Procedure. See K.M. Young & Associates, Inc. v. Cieslik, 4 Haw.App. 657, 675 P.2d 793 (1983). Therefore, the motion had no effect on the court's authority to issue the order affirming the Board's decision. Furthermore, there is nothing in the record to indicate that the proceedings were stayed by the petition for mandamus. Therefore, the October 26, 1982, notice of appeal was timely.

I. STANDARD OF REVIEW

This appeal...