Devous v. Wyoming State Bd. of Medical Examiners, s. 91-212

• Decision Date: 22 January 1993
• Docket Number: Nos. 91-212,91-213,s. 91-212
• Citation: 845 P.2d 408
• Parties: A. Scott DEVOUS, Appellant (Petitioner), v. WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellee (Respondent). WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellant (Respondent), v. A. Scott DEVOUS, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 408

845 P.2d 408

A. Scott DEVOUS, Appellant (Petitioner), v. WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellee (Respondent).

WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellant (Respondent), v. A. Scott DEVOUS, Appellee (Petitioner).

Nos. 91-212, 91-213.

Supreme Court of Wyoming.

Jan. 22, 1993.

Richard Barrett, Hathaway, Speight, Kunz, Trautwein & Barrett, Cheyenne, for petitioner.

Joseph B. Meyer, Atty. Gen., Don W. Riske, Sp. Asst. Atty. Gen., Cheyenne, for respondent.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, ^* and GOLDEN, JJ.

THOMAS, Justice.

The primary issue to be resolved in this case is whether A. Scott Devous (Dr. Devous) was deprived of his constitutional right to due process in a proceeding to suspend his license to practice medicine. Dr. Devous' claims of deprivation of due process encompass inadequate notice; the impropriety of drawing an adverse inference based upon his exercise of his constitutional right not to incriminate himself; and the bias of a member of the board. The Wyoming State Board of Medical Examiners (Board) also has appealed from the decision of the district court contending the court erred in refusing to: sustain portions of the order of the Board that required Dr. Devous to show good conduct as a requisite to license reinstatement; restrict Dr. Devous' license upon reinstatement by requiring co-signature of another physician on prescriptions for Schedule II drugs; and issue a public reprimand of Dr. Devous. The Board also contends that the court erred in failing to sustain the imposition of costs in the order of the Board relating to the licensure proceedings. We hold that Dr. Devous' due process rights were infringed in the suspension proceeding, and the order of the district court sustaining the ninety-day suspension of Dr. Devous' license should be reversed. We affirm the refusal of the district court to order the imposition of costs against Dr. Devous in connection with the licensure proceeding.

The appeal of Dr. Devous and the appeal of the Board were consolidated for purposes of this appeal. The cases, however, were briefed separately by the parties. In his brief as appellant, Dr. Devous sets forth these issues:

Was the 90-day suspension of Dr. A. Scott Devous' license unlawful?

A. Did the board violate Dr. Devous' constitutional right to notice of the charges against him?

B. Does license suspension based solely on the exercise of a physician's privilege against self-incrimination violate the Fifth and Fourteenth Amendments of the United States Constitution?

C. Was Dr. Devous denied a fair and impartial hearing by reason of [another physician]'s bias?

As appellee, the Board restates the issues in this way:

I. Whether the Appellee violated the Appellant's Constitutional rights to notice of charges against him at the informal interview stage of the disciplinary proceedings.

II. Whether the Board could properly find a violation of W.S. § 33-26-402(a)(xxiii) based upon Appellant's exercise of his privilege against self-incrimination.

In its Brief of Appellant, in its separate appeal, the Board presents this statement of the issues:

I. Whether the Board's April 22, 1991, Findings of Fact, Conclusions of Law, Decision and Order should be set aside.

(a) Whether the Order should be set aside due to the hearing officer's failure to disqualify [another physician] from the hearing panel.

(b) Whether the Order should be set aside due to a lack of substantial evidence in the record to support the Board's Findings of Fact, Conclusions of Law, Decision and Order.

II. Whether the Board is entitled to impose costs as shown by its verified Bill of Costs upon Respondent.

In answering the Board's appeal, Dr. Devous quotes and accepts that statement of the issues without submitting any additional statement.

Some background information is essential to an understanding of the dispute between Dr. Devous and the Board. In 1983, Dr. Devous was convicted, in the United States District Court for the District of Wyoming, of felony charges that related to his misuse of Demerol, a schedule II controlled substance. Dr. Devous served less than four months of his one-year sentence, and he was released from his five-year probation in December of 1985. Following his parole, Dr. Devous completed a family practice residency in Tennessee and, in 1989, he earned an M.A. degree in Public Health Administration.

Dr. Devous had voluntarily relinquished his license to practice medicine in the State of Wyoming around July 15, 1983. On January 13, 1987, he wrote to the Board requesting that it re-issue his license to practice medicine so he could sit for the American Board of Family Practice certifying examination. About April 6, 1987, Dr. Devous also submitted an application to the Board to be licensed to practice medicine and surgery in the state of Wyoming. On June 1, 1987, the Board issued license 3990-A to Dr. Devous, in accordance with his application and after he had appeared before the Board.

In February, 1990, Dr. Devous began treating patients at the Wright Medical Clinic. Campbell County Memorial Hospital, which owned the clinic, employed him under a locum tenens (temporary) contract. Within days after Dr. Devous began seeing patients at the clinic, he received a letter from the Board asserting that his license was subject to certain conditions or restrictions that he allegedly had violated since his return to Wyoming. On June 4, 1990, an informal discussion was held at which the participants were Dr. Devous, two Board members, and the Board's attorney. Dr. Devous was not advised that the Board would be voting on revocation of his medical license for the alleged violations of the conditions and restrictions on his license. Those conditions and restrictions were alleged to be: (1) prior notification of his intention to return to Wyoming; (2) his submission to random drug testing if he did return to Wyoming; and (3) his involvement in an impaired physician's support group.

On June 8, 1990, the Board revoked Dr. Devous' license to practice medicine on the grounds that he had violated the conditions set forth above. Dr. Devous' request for a contested court hearing was denied by the Board. He then filed a Petition for Judicial Review of Administrative Action in the District Court of the First Judicial District asserting the violation of his substantive and procedural due process rights, including notice of the charges against him; the opportunity to present evidence; and the opportunity to cross-examine witnesses. At that juncture, the Board entered an order withdrawing the revocation of Dr. Devous' license, and it filed a complaint and notice of contested case hearing, setting the issue of the revocation of his license for a contested case hearing before a retired jurist.

One week before the contested case hearing which was scheduled in front of the retired jurist, the Board required Dr. Devous to attend another informal interview in Casper. Dr. Devous received a letter from the Board, dated October 2, 1990, directing him to bring to the interview certain documents, consisting mainly of specific patient records. The letter did not incorporate any notice of facts or conduct that would warrant any intended Board action. In addition, while the letter was drafted by the executive secretary of the Board, it was never signed, nor was it introduced or received into evidence even though the hearing officer, with respect to those matters, specifically ordered that it be admitted into evidence. Dr. Devous attended this "informal interview," but he invoked his constitutional rights against self-incrimination on several occasions. His motivation was to avoid anything that might incriminate him because of a fear that something he said might be used against him in a subsequent criminal proceeding. ¹

In its Decision and Order, the Board relied upon Wyo. Stat. § 33-26-402(a)(xv), (xviii), (xxiii), and (xxvi) (1987). These respective statutory provisions provide:

(a) The board may refuse to grant or renew, revoke, suspend or restrict a license or take other disciplinary action on the following grounds:

* * * * * *

(xv) Failure to appropriately supervise or collaborate with nonphysicians to whom the licensee has delegated medical responsibilities;

* * * * * *

(xviii) Willful and consistent utilization of medical service or treatment which is inappropriate or unnecessary;

* * * * * *

(xxiii) Failure to submit to an informal interview or a mental, physical or medical competency examination following a proper request by the board;

* * * * * *

(xxvi) Unprofessional or dishonorable conduct not otherwise specified in this subsection, including but not limited to:

(A) Any conduct or practice:

(I) Contrary to recognized standards of ethics of the medical profession;

(II) Which does or may constitute a substantial risk of:

(1) Danger to the health or safety of a patient or the public; or

(2) Impairing a physician's ability to safely and skillfully practice medicine.

The contested case hearing involving the violations of the alleged conditions or restrictions upon Dr. Devous' medical license went on as scheduled, and the retired jurist who presided at that hearing filed his decision on December 5, 1990. He ruled that Dr. Devous had a full and unrestricted license to practice medicine in Wyoming. Apparently judicial review was not pursued with respect to that determination, and the findings of fact and conclusions of law in that proceeding are not at issue in this appeal. The matter does serve to demonstrate the vigor with which the Board fulfilled its statutory duties with respect to Dr. Devous' license.

On October 15, 1990, the day before the contested case hearing before the retired jurist, the Board filed a new complaint and notice of a contested case hearing pursuant to Wyo. Stat. §§ 33-26-101 to -511 (1987), and specifically asserting grounds identified for discipline in Wyo....