Colorado State Bd. of Nurse Examiners v. Hohu, 17151

• Decision Date: 15 March 1954
• Docket Number: No. 17151,17151
• Citation: 129 Colo. 195,268 P.2d 401
• Parties: COLORADO STATE BOARD OF NURSE EXAMINERS et al. v. HOHU.
• Court: Colorado Supreme Court

Page 401

268 P.2d 401

129 Colo. 195

COLORADO STATE BOARD OF NURSE EXAMINERS et al. v. HOHU.

No. 17151.

Supreme Court of Colorado, En Banc.

March 15, 1954.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Robert S. Wham, Asst. Atty. Gen., for plaintiffs in error.

Dickerson, Morrissey, Zarlengo & Dwyer, Denver, for defendant in error.

HOLLAND, Justice.

The Colorado State Board of Nurse Examiners having revoked the registered nurse's license of Miss Hohu, and meeting with a reversal of the order in the district court, seeks a reversal of the judgment.

Miss Hohu, to whom we herein refer as respondent, is a registered nurse, and the record shows her former training and hospital experience, which is in nowise questioned here. On February 28, 1950, respondent was in the employ of the Southwest Memorial Hospital at Cortez, Colorado, and during all of the time since, she had been licensed as a nurse, and until the filing of the charge here involved, no complaint of any kind had ever been filed against her. On May 1, 1950, the director of the Board sent her by registered mail a notice to appear before the Board on June 21, 1950, to show cause why her license to practice professional nursing should not be revoked on cause of unprofessional conduct and gross incompetence, and stating that the specific charge against her was contained in a letter addressed to the Board dated February 29, 1950, from Dr. C. E. Parmley of Cortez, which was in the following language:

'On February 28, 1950, I notified Miss Margaret Hohu, an employee of the Southwest Memorial Hospital, Cortez, Colorado, that one of my primipara obstetrical patients was on the way to the hospital. Miss Hohu allowed the patient to set in the waiting room until my arrival an hour later, and then insulted her.

'After the patient was finally put to bed, Miss Hohu did not check and watch her as closely as required by the rules of the hospital and, in addition, used obscene language. When it was time for the delivery, Miss Hohu did not call me, and the precipitous delivery resulted in a laceration.'

In the interim, counsel for respondent and the Board stipulated for the taking of depositions in a fashion similar to such procedure in pending court proceedings; the depositions of a number of witnesses were taken; and the matter came on for hearing before the Board on June 28, 1950, when respondent and her counsel appeared for the hearing, and only three of the five members of the Board were present. At the conclusion of the hearing the minutes of the meeting on that date shows the following:

'Since the entire Board was not present at this meeting it was necessary to take the mattr under advisement. It was promised that Mr. Dickerson and Miss Hohu would be notified regarding the decision as soon as possible.'

On August 3 another meeting of the Board was held in Denver, at which time four of the five member board were present, and the minutes of this meeting show that the four members of the board took up the consideration of respondent's case and determined that respondent was guilty of gross incompetency, unprofessional conduct, and certain habits rendering a nurse unsafe to care for the sick in that she failed to perform her duties, as is required in the general practice of nursing, by failing to call the patient's doctor; the use of improper and profane language whereby the patient suffered mental anguish and embarrassment; by discourteous treatment of the patient; and for these reasons, it was the order of the Board by unanimous vote that respondent's license be immediately revoked and her name stricken from the roll of registered nurses. These minutes further disclosed that after some discussion the members of the Board determined that the director be instructed to take the complete record of the testimony to the absent member of the Board, Sister Mary Carolyn, with the request that she read the entire transcript and vote upon it. This was done, and the absent member voted for revocation by verified letter to the Board. This presents the following situation: Only three members of the Board attended the actual hearing when respondent was present; the fourth member, at a second meeting, voting in favor of the revocation; the fifth member voted in favor of the revocation some six weeks after notice of the revocation was issued by the Board; and on September 26, the Board apparently realized the requirement of the statute, that a revocation could be had only on a unanimous vote of the board, held a meeting, and upon motion of one member of the board, the minutes were made to show that the unanimous vote of the Board in respondent's case was in favor of revocation of her license.

On certiorari to the district court, that court entered its findings, judgment and decree in the following language:

'This matter came before the court on the complaint of Plaintiff in the nature of certiorari directed to the State Board of Nurse Examiners and the individual members thereof. The Board having certified the records of the proceedings to the court and the court having reviewed the record and heard the arguments of counsel and having taken the matter under advisement,

'Doth Find

'That the record does not support the findings of the State Board; the Board was arbitrary in finding the plaintiff possessed of 'habits rendering the plaintiff unsafe or unfit to care for the sick,' when such was not specified in the charge against her. The conduct of the plaintiff as shown by the record is not such as to come under any of the prohibited acts enumerated in Section 6 of Chapter 114, 1935 Colorado Statutes Annotated.

'It is the further finding of the court that the evidence adduced at the hearing does not support the charge of unprofessional conduct or gross incompetence, as contained in the Notice of Hearing sent to the plaintiff by registered mail on May, 1950.

'It is the further finding of the court that the hearing was not conducted according to law, in that a hearing for revocation of a license requires the...