Fallon v. Wyoming State Bd. of Medical Examiners

• Decision Date: 29 May 1968
• Docket Number: No. 3610,3610
• Citation: 441 P.2d 322
• Parties: Walter W. FALLON, Appellant and Licensee, v. WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellee.
• Court: Wyoming Supreme Court

Page 322

441 P.2d 322

Walter W. FALLON, Appellant and Licensee, v. WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellee.

No. 3610.

Supreme Court of Wyoming.

May 29, 1968.

John O. Callahan, Torrington, William H. Brown, of Brown, Drew, Apostolos, Barton & Massey, Casper, for appellant.

James E. Barrett, Atty. Gen., Dean W. Borthwick, Sp. Asst. Atty. Gen., Cheyenne, for appellee.

Before GRAY, McINTYRE, and PARKER, JJ.

GRAY, Justice.

In March 1962 Walter W. Fallon was licensed as a physician and surgeon by the State Board of Medical Examiners and commenced practice in the town of Basin, Wyoming.

Early in the year 1963 Dr. Greer, President of Wyoming Medical Service, Inc. (Blue Shield), complained to the Wyoming State Medical Society that the licensee on three occasions appeared to have been 'collecting from Blue Shield for services not performed.' The matter was then apparently referred to the grievance committee of the society and on July 30, 1963, it filed a report with the society which in turn referred the matter back to the grievance committee 'for the recommendation as to specific action to be taken by the Council of the State Medical Society as required by the Constitution and By-laws.' As a result the committee, after some additional investigation, advised the then attorney of the licensee that it would hold a hearing concerning the problems and charges on August 11, 1964, at Cheyenne, Wyoming, and directed that the licensee bring with him all records of some twenty-four patients from his office, 'including his claims to Blue Shield for payment in connection therewith.'

The licensee failed to appear before the committee and thereupon the committee proceeded to compile a report to the council of the state medical society. In such report the committee separately stated the information the committee had gathered and its conclusions with respect to some eighteen patients, all involving, with one exception, billings by the licensee to Blue Shield, and among other things stated:

'The evidence indicates to the Committee that Dr. Fallon's conduct was improper and he has been given an opportunity and refused to make an explanation of what appear to be irregularities of a serious nature. The Committee feels compelled to conclude and hereby charges Dr. Walter W. Fallon has been guilty of misconduct and unethical and unprofessional conduct which did deceive and harm the public and charges that he wilfully used false and fraudulent statements in the practice of medicine.'

While the record is not entirely clear, it appears that the state society on September 10, 1964, caused the committee report to be filed with the state board of medical examiners, and under date of October 21, 1964, pursuant to § 33-340, Section 3, W.S.1957, the board gave notice to the licensee that the Wyoming State Medical Society, the Wyoming Medical Service, Inc. (Blue Shield), and the Wyoming Hospital Service (Blue Cross), had filed a complaint with the board requesting that the board consider suspending or revoking his license, and simply stated, 'The nature of the offense charged by the complainants is the use of false or fraudulent statements in documents that were prepared by you in your practice,' which was in the language of paragraph (g) of § 33-340, Section 1, W.S.1957. The board also advised that the matter was set for hearing before it on December 15, 1964, at Casper, Wyoming, and further requested that the licensee furnish within thirty days 'all X-rays, consultation reports and completed records pertaining to the following patients.' The patients named were Jeff Brinkerhoff, Arnold Kelly, Karen Clark, and Adella Marcus. Later it was discovered that the board was referring to Kelly Arnett rather than Arnold Kelly.

The record does not show that a copy of the so-called complaint was served along with the notice, but in any event the licensee, shortly after receipt of the notice, filed a motion with the board for a bill of particulars, requesting a more definite statement concerning the facts and the nature of the charge by identifying 'the exact statements' alleged to be false and fraudulent and 'the specific documents connected with the practice of medicine in which said statements were wilfully used.' No direct response appears to have been made by the board to that motion. Rather, the attorney for the board advised the licensee that 'The complainant (not the licensee) has on this date moved the Board to notify you more specifically as to the charges that have been filed. This letter is being forwarded to you pursuant to said Motion and the specific charges are set forth below.' What was stated as 'specific charges' was simply a verbatim copy of that portion of the committee's report quoted above.

About that same time the attorney for the complainants also filed a so-called 'Bill of Particulars,' which with some embelishment simply repeated the information contained in the grievance committee report. Following this the licensee renewed his motion for a bill of particulars, which was resisted by the complainants, and in this resistance it was stated:

'It is not an adversary proceeding and no criminal proceeding or civil action has been commenced. The only notice required to be given to Doctor Fallon is that stated in the statute, to-wit: 'a statement of the nature of the offense charged'. This statement has been furnished by the State Board of Medical Examiners. If the State Board of Medical Examiners cares to make it more complete, that is the responsibility of the State Board of Medical Examiners under the statute.

'The motion is specious, dilatory and intended to harass the State Board of Medical examiners and others.'

Apparently on the basis of this representation the licensee's motion was denied and thereafter the licensee filed an answer and response wherein he generally denied any willful, improper, dishonest, unethical, or unprofessional conduct, and the willful use of any false or fraudulent statements in the practice of medicine. The answer also contained allegations as to the nature of his defense on each and every patient named in the bill of particulars.

Thereafter a hearing was held commencing on the date fixed by the board's notice, which was concluded the next day. Following the hearing the board, under date of February 8, 1965, entered its order and under the designation of 'FINDINGS AND CONCLUSIONS AND ORDER' stated:

'The Board finds W. W. Fallon, guilty of violating subsections (f) and (g) of Section 33-340, Wyoming Statutes, 1957, in that:

'1. He was dishonest in that he did knowingly and purposely submit false claims for medical services to the Wyoming Medical Service.

'2. His conduct was unprofessional and unethical in that he misrepresented the severity of an illness to a patient, that he submitted her to major surgery without proper pre-operative study and that he did surgery upon her after she was in an anesthetized condition without her knowledge and without consulting and obtaining the permission of her husband.

'3. His conduct was unprofessional and unethical in that he was exaggerated findings and diagnosis on several occasions in order to obtain larger fees for his services.

'4. His conduct was deceitful in that he has practiced ordinary denital work and represented this work as complicated oral and maxillofacial surgery.

'5. His conduct was unprofessional in that he failed completely to maintain accurate and adequate medical records.

'WHEREFORE, THE BOARD concludes that in the public interest the license of W. W. Fallon to practice medicine in the State of Wyoming should be suspended.'

On the basis of the foregoing the board further concluded and ordered that the license of the licensee be suspended for a period of four years with the proviso, however, that after the first year the licensee might petition the board 'for a conditional reinstatement' of his license subject to revocation for any reason deemed sufficient by the board during the four-year period.

Following this the licensee, pursuant to § 33-340, Section 5, filed his notice of appeal with the board and also filed with the district court a petition and amended petition for a trial de novo and relief from the order of the board. In substance it was claimed that the licensee had not received of full, fair, and impartial hearing before the board. Reference will later be made to certain of the grounds alleged as a basis for such claim. It was also claimed that the findings of the board are not supported by the evidence, and contrary to law, and are insufficient to disclose the evidence upon which the board relied in support of its findings or conclusions; that findings were made on matters not within the charges of the complaint nor the board's notice; and that the penalty imposed was not justified by any of the charges made nor the evidence offered in support thereof and constituted an abuse of discretion.

Following the filing of the petition in the district court the board filed a motion to intervene, which was granted, and thereafter filed its answer asserting that the petition failed to state a claim upon which relief could be granted, generally denied each and every allegation of the licensee's petition, affirmatively alleged that the proceedings before the board contained sufficient and substantial evidence in support of the board's findings and order, and prayed that relief be denied and the board's order affirmed. No answer was filed by the complainants and the board took over the defense of its order.

It resisted the taking of any evidence not contained in the proceedings before the board, which was overruled in part, and although the trial court did receive some additional evidence it was generally limited to evidence that the licensee claimed he was not afforded an opportunity to present in the proceedings before the board.

Following the hearing on the matter the trial court, with the exception of finding...