Davis v. Wright

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS; HASTINGS
• Citation: Davis v. Wright, 243 Neb. 931, 503 N.W.2d 814 (Neb. 1993)
• Decision Date: 06 August 1993
• Docket Number: No. S-91-289,S-91-289
• Parties: James DAVIS, M.D., Appellee, v. Gregg WRIGHT, M.D., M. ED., Director of the Department of Health, and the Department of Health, Appellants.

Page 814

503 N.W.2d 814

243 Neb. 931

James DAVIS, M.D., Appellee, v. Gregg WRIGHT, M.D., M. ED., Director of the Department of Health, and the Department of Health, Appellants.

No. S-91-289.

Supreme Court of Nebraska.

Aug. 6, 1993.

Syllabus by the Court

1. Administrative Law: Appeal and Error. Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency. Neb.Rev.Stat. § 84-917(5)(a) (Cum.Supp.1992).

2. Administrative Law: Appeal and Error. An aggrieved party may secure a review of any judgment rendered or final order made by the district court under the Administrative Procedure Act by appeal to the Court of Appeals. In an appeal under the Administrative Procedure Act, the appeal shall be taken in the manner provided by law for appeals in civil cases, and the judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record. Neb.Rev.Stat. § 84-918(3) (Cum.Supp.1992).

3. Statutes: Appeal and Error. Statutory interpretation is a question of law in connection with which an appellate court has an obligation to reach an independent conclusion, irrespective of the determination made by the court below.

4. Disciplinary Proceedings: Physicians and Surgeons: Proof. The allegations made in disciplinary proceedings involving physicians must be proved by clear and convincing evidence.

5. Judgments: Appeal and Error. An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.

6. Licenses and Permits: Health Care Providers. A violation of the practice standards of the medical profession does not define unprofessional conduct for the purposes of Neb.Rev.Stat. § 71-147(10) (Reissue 1990).

7. Administrative Law: Appeal and Error. Neb.Rev.Stat. § 84-917(6)(b) (Cum.Supp.1992) authorizes the district court to affirm, reverse, or modify the decision of an administrative agency or to remand the case for further proceedings.

Don Stenberg, Atty. Gen., and Melanie J. Whittamore-Mantzios, Lincoln, for appellants.

William M. Lamson, Jr., and Raymond E. Walden, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

HASTINGS, Chief Justice.

This is an appeal from the judgment of the district court, which on review under Neb.Rev.Stat. § 84-917 (Cum.Supp.1992) reversed the order of Gregg Wright, director of the Nebraska Department of Health (Director), revoking the license of the petitioner, James Davis, to practice medicine and surgery in the State of Nebraska and revoking his controlled substance registration. The Director and the Department of Health (Department) appealed, alleging as error substantially (1) that the district court erred in finding that the State had failed to prove by clear and convincing evidence that Davis had engaged in a sexual relationship with a patient during the physician-patient relationship and that Davis had fraudulently prescribed controlled substances for a patient, and (2) that the court erred in imposing a disposition against Davis instead of remanding the case to the Director for the appropriate disposition.

Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency. § 84-917(5)(a). The district court may affirm, reverse, or modify the decision of the agency or remand the case for further proceedings. § 84-917(6)(b).

(1) An aggrieved party may secure a review of any judgment rendered or final order made by the district court under the Administrative Procedure Act by appeal to the Court of Appeals.

....

(3) ... [T]he appeal shall be taken in the manner provided by law for appeals in civil cases. The judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record.

Neb.Rev.Stat. § 84-918 (Cum.Supp.1992).

This was a disciplinary action brought by Robert M. Spire as Attorney General of the State of Nebraska under the provisions of Neb.Rev.Stat. § 71-147 et seq. (Reissue 1990) against Davis, a physician licensed to practice medicine in the State of Nebraska.

The amended petition, filed on May 31, 1989, before the Director, alleges that Davis practiced psychiatry in Omaha and that in 1978, a 33-year-old female (patient I) placed herself under the medical control of Davis. In about April or May 1982, according to the pleading, Davis asked patient if she would have a sexual relationship with him. Patient I eventually consented, and thereafter Davis and the patient engaged in sexual activity "on almost every regularly scheduled appointment he had with her until January of 1984." This activity, it is alleged, constituted unprofessional conduct on the part of a practicing physician within the meaning of § 71-147(10); grossly immoral or dishonorable conduct evidencing the lack of fitness to practice medicine and surgery within the state, in violation of § 71-147(2); and practices beyond the authorized scope of medicine and surgery, in violation of § 71-147(5)(b).

Additionally, it is alleged that in February 1980, a 26-year-old female (patient II) placed herself under the medical care and control of Davis, relying upon his professional advice and treatment of her depression and pain as a result of the patient's Crohn's disease. On or about January 7, 1985, as a result of a complaint that Davis was overprescribing drugs for this patient, which resulted in a conference with an investigator from the bureau of examiners in the Department, Davis agreed that he was prescribing too much medication and would monitor the exact number of drugs patient II was taking daily. Notwithstanding that promise, it is alleged, a male live-in friend of patient II's accompanied the patient to an appointment with Davis, and after the friend complained of back pain, Davis prescribed Percodan and Darvocet for the friend without benefit of a physical examination. The amended petition continues, alleging that although the male friend moved to Philadelphia in September 1985, which Davis knew, and Davis had no further contact with him, Davis nevertheless continued to prescribe these medicines, giving the prescriptions to patient II until July 1987, although no records disclosed that a physician-patient relationship existed between Davis and the friend.

The amended petition goes on to allege that on or about June 26, 1986, Davis wrote four prescriptions for a female friend of patient II's, prescribing Darvocet, Percodan, Valium, and Placidyl, although the friend had never seen Davis as a patient, and that Davis knew that the medications he prescribed in the friend's name would be used by patient II.

The aforementioned acts regarding prescriptions constituted, according to the allegations of the State, the practice of medicine beyond the authorized scope, in violation of § 71-147(5)(b); unprofessional conduct on the part of Davis within the meaning of § 71-147(10); and grossly immoral or dishonorable conduct evidencing the lack of fitness to practice medicine and surgery within the state, in violation of § 71-147(2).

A hearing was conducted on the complaint before a hearing examiner appointed by the Director as well as before the Director himself, who was present during the entire time that the hearing progressed. The hearing was held in conformity with § 71-155, which provided in part that "[t]he proceeding [for the revocation or suspension of a license or certificate] shall be summary in its nature and triable as an equity action." The hearing commenced on September 11, 1989, and concluded on the morning of September 15. Either in person or by deposition, 19 witnesses testified and the transcript of the testimony consists of over 700 pages plus 2 volumes of exhibits and pleadings, all of which this court has examined. The findings, conclusions, and order of the Director stated that Davis did in fact maintain a sexual relationship with a patient during her treatment; that he did in fact issue narcotic drugs in the names of two friends of a patient's, knowing that they were for the use of the patient; and that such conduct violated the statutory prohibitions in all respects, and the Director ordered the license of Davis revoked and the registration of Davis for the prescribing of controlled substances revoked.

The petition for review was filed in the district court on July 6, 1990. That court found that the record failed to prove, either by clear and convincing evidence or by the greater weight of the evidence, that Davis had a sexual relationship with patient I. The court found that Davis did perform a physical examination on the male friend of patient II's and that his prescribing of drugs for that person was an acceptable action within the scope of his medical practice, but that Davis continued the prescriptions for an unreasonable period of time without a followup examination. The court also found that he wrote prescriptions for the female friend of patient II's based solely on her complaints of pain, which was a minimally acceptable action within the proper scope of his medical practice, and that although he failed to keep adequate records of the prescriptions written for these two friends of patient II's, the record failed to establish, either by clear and convincing evidence or by the greater weight of the evidence, that Davis had committed fraud with reference to his prescription practice.

The district court reversed the order of the Director revoking the license of Davis to practice medicine and modified the order of the Director revoking the controlled substance...