Fiber v. New Mexico Bd. of Medical Examiners
| Decision Date | 06 June 1979 |
| Docket Number | No. 11893,11893 |
| Citation | 1979 NMSC 46,93 N.M. 67,596 P.2d 510 |
| Parties | Fryderyk FIBER, M. D., Petitioner-Appellee, v. NEW MEXICO BOARD OF MEDICAL EXAMINERS, Respondent-Appellant. |
| Court | New Mexico Supreme Court |
This is an appeal by the New Mexico Board of Medical Examiners (Board) from a decision of the District Court of Santa Fe County ordering the licensure by endorsement of Dr. Fryderyk Fiber, as provided by § 61-6-12, N.M.S.A.1978.
Dr. Fiber is a medical doctor specializing in the field of otolaryngology, the branch of medicine and surgery related to the ear, nose and throat. Born in Russia in 1941 Dr. Fiber received a Medical Doctor's Degree in Hungary in 1965. He came to the United States in 1972, after practicing his specialty for six years, and successfully passed the examination given by the Educational Counsel for Foreign Graduates. He did research at Harvard Medical School and later was accepted as a resident at Columbia Presbyterian Hospital in New York City where he served until 1976. In that same year, he came to New Mexico where he obtained a position as Assistant Professor of Surgery in the Division of Otolaryngology with the University of New Mexico Medical School. The Board granted Dr. Fiber an institutional license authorizing him to practice medicine under the auspices of the University.
In April of 1976, Dr. Fiber applied to the Board for licensure by endorsement as provided by § 61-6-12. A hearing was held before the Board on May 17, 1977; his application was denied. Dr. Fiber filed a Petition for Review in the District Court of Santa Fe County pursuant to § 61-1-17, N.M.S.A.1978. Based on the record, briefs and arguments of counsel, the court entered its decision and judgment reversing the Board's denial of Dr. Fiber's application. The Board appeals.
Section 61-1-20, N.M.S.A.1978 controls the scope of review of administrative procedures. It states:
Upon the review of any board decision under the Uniform Licensing Act . . . (t)he court may affirm the decision of the board or remand the case for further proceedings; or it May reverse the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, Conclusions or decisions are: in violation of constitutional provisions; or in excess of the statutory authority or jurisdiction of the board; or made upon unlawful procedure; or affected by other error of law; or Unsupported by substantial evidence on the entire record as submitted; Or arbitrary or capricious. (Emphasis added.)
Section 61-6-12, which vests the Board with authority to grant a license without examination and by endorsement, provides in part:
All applicants for licenses of the classes referred to in Section 61-6-10 NMSA 1978 shall be examined in the English language on such subjects as the board may deem necessary to test the applicant's fitness to practice medicine. An average of 75 percent must be obtained at such examination by each applicant; provided, that such Board may grant licenses without examination and by endorsement to those applicants who have been regularly licensed physicians in the District of Columbia, other states and territories, Having qualifications and requirements equivalent to those required in New Mexico, when properly endorsed . . . . (Emphasis added.)
The sole reason advanced by the Board for refusing to grant Dr. Fiber a license is that the disparity in methodology between New York and New Mexico is such as to make New York's standards not equivalent to those in New Mexico and, therefore, less restrictive.
Both states use the Federal Licensing Examination (FLEX Test) to assess the qualifications of applicants. The FLEX Test covers the areas of basic science, clinical science, and clinical competence. Grades achieved on each of these sections are tabulated separately; they are not combined to obtain an average or total score. Grades from each section are weighted according to the importance placed on the area under consideration to demonstrate medical competency. Thus, basic science is given a weight of one; clinical science is given a weight of two; and clinical competence is given a weight of three. The score on each test is multiplied respectively by 1, 2 and 3, and the figure is then divided by 6 to arrive at a final weighted score.
Both New York and New Mexico require applicants to achieve a minimum score of 75 percent. The statutes, rules and regulations of both states do not provide any disparity. The only point of disparity is contained in the unwritten practice or custom of the Board. The Board has adopted a policy of not extending licensure by reciprocity under § 61-6-12, if the other state, which granted a medical license after requiring a FLEX Test, permitted the averaging of the highest grades attained on more than one examination to attain the 75 percent weighted average. New York's licensing authority does not impose this additional requirement upon the standard of 75 percent.
The question arises whether this one item of disparity makes the standards of New York and New Mexico not equivalent within the meaning of § 61-6-12. "Equivalent" is defined as being "(e)qual in value, force, measure, volume, power, and effect or having equal or corresponding import, meaning or significance; alike, identical." Black's Law Dictionary 636 (Rev. 4th ed. 1968). See also Nahas v. Nahas, 59 Nev. 220, 90 P.2d 223, 224 (1939).
Things may differ one from the other and still be "equivalent," if they are of equal value, significance or import, in relation to a common standard, here the promotion and preservation of standards for practicing physicians in both states.
Dr. Fiber took the FLEX Test in December 1974, did not achieve a weighted score of 75 percent, and retook the test in September 1975. New York's licensing authority permitted the weighted scores of sections 1 and 2 taken in 1975 to be combined with the weighted score of section 3 taken in 1974, which together gave Dr. Fiber the required score. On this basis, he was granted a license to practice medicine in New York. The Board's decision in refusing to grant Dr. Fiber a license by endorsement was based solely on the fact that New York recognized Dr. Fiber's scores on two sittings of the FLEX Test and the Board, by custom, only recognizes scores obtained at one sitting. No comparison was made by the Board of the various considerations touching the composition of the standards under inquiry. The trial court found that the Board's decision was not supported by substantial evidence and that it was arbitrary and capricious. We agree.
A district court may not substitute its judgment for that of the Board. The court is limited in its review to determining whether the Board's order was reasonable and supported by substantial evidence. Seidenberg v. New...
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