Gale v. North Dakota Bd. of Podiatric Medicine

Decision Date25 April 1997
Docket NumberNo. 960295,960295
PartiesDr. Brian GALE, Appellee, v. NORTH DAKOTA BOARD OF PODIATRIC MEDICINE, Appellant. Civil
CourtNorth Dakota Supreme Court

Orell D. Schmitz (argued), of Schmitz, Moench & Schmidt, Bismarck, for appellee.

Ken R. Sorenson (argued), Assistant Attorney General, Attorney General's Office, Bismarck, for appellant.

NEUMANN, Justice.

¶1 The North Dakota Board of Podiatric Medicine appealed from a judgment reversing the Board's decision to place Dr. Brian Gale on unsupervised probation for two years for misleading advertising and for failing to meet the minimal standards of acceptable podiatric practice. We hold the Board's decision did not violate administrative and statutory procedures and did not deprive Dr. Gale of due process. We also hold the Board's decision is supported by a preponderance of the evidence. We therefore reverse the judgment and reinstate the Board's decision.

I

¶2 In January 1994, Dr. Charles Dahl of Bismarck asked Dr. Aaron Olson, the Board's president, about the scope of practice of Dr. Gale, a Bismarck podiatrist. Dr. Dahl specifically inquired about Dr. Gale's treatment of three patients, including Melvin Keator. In February 1994, Dr. Russell Emery of Bismarck also asked Dr. Olson about the scope of practice of a "local podiatrist." The gist of those inquiries was whether Dr. Gale's treatment of distal tibia and fibula fractures above the ankle joint was within the scope of podiatric medicine, which is defined by North Dakota law as "the diagnosis and treatment of conditions affecting the human foot and ankle." N.D.C.C. § 43-05-01(5). See also N.D.A.C. § 63-01-05-01(3) (defining podiatric medicine as "the diagnosis and treatment of conditions affecting the human foot and ankle and their governing and related structures").

¶3 Dr. Olson and Dr. Gale were former associates in a podiatric practice, and when those inquiries were made, Dr. Olson was involved in civil litigation with Dr. Gale regarding the termination of their business relationship. According to Dr. Gale, Dr. Olson also was engaged in the area of podiatric practice identified in the inquiries and had been involved in Dr. Gale's treatment of Keator. See Keator v. Gale, 1997 ND 46, 561 N.W.2d 286.

¶4 Dr. Olson convened a special Board meeting by teleconference in February 1994 to discuss the inquiries. The Board's counsel and all five Board members, Dr. Olson, Dr. Lee Hofsommer, Dr. Doug Moen, Dr. Robert Deichert, and Dr. Manuel Harris, participated in the teleconference. At the direction of counsel, the Board appointed a committee consisting of Dr. Hofsommer, Dr. Harris, and Dr. Moen to investigate the inquiries about Dr. Gale.

¶5 The three-member investigatory committee met in March 1994. The investigatory committee decided the scope-of-practice inquiries were meritorious and recommended bringing the matter before the full Board. The committee also learned Dr. Gale, in renewing his 1994 North Dakota podiatric license, had not disclosed disciplinary proceedings against him by the State of California. Additionally, Dr. Moen suggested addressing Dr. Gale's standard of care.

¶6 The full Board and its counsel met in March 1994. The Board, with Dr. Olson abstaining, accepted the investigatory committee's finding that the scope-of-practice allegations were meritorious. The full Board also voted to institute formal proceedings against Dr. Gale for breach of the minimal standard of podiatric care in treating Keator, withholding information about the California disciplinary proceeding, and engaging in "malicious" advertising. In a formal administrative complaint, the Board's counsel alleged Dr. Gale (1) violated the scope of practice for podiatric medicine; (2) failed to properly treat and care for patients; (3) failed to notify the Board he had voluntarily surrendered his California podiatric license; and (4) employed false or misleading advertising.

¶7 The office of administrative hearings appointed a hearing officer to preside over the formal administrative proceedings. See N.D.C.C. ch. 54-57. After a formal administrative hearing in January 1995, the hearing officer found Dr. Gale had exceeded the scope of podiatric practice and had withheld information about the California disciplinary proceeding, but recommended dismissing those charges. The hearing officer found by a preponderance of evidence Dr. Gale had used misleading advertisements and had failed to conform to minimal standards of acceptable podiatric practice in treating Keator. The hearing officer recommended disciplining Dr. Gale for the misleading advertisements and his treatment of Keator.

¶8 The Board, consisting of Dr. Hofsommer, Dr. Harris, Dr. Moen, and Dr. Deichert, adopted the hearing officer's findings that Dr. Gale had exceeded the scope of podiatric practice and had withheld information about the California disciplinary proceeding, and the hearing officer's recommendation to dismiss those charges. The Board adopted the hearing officer's findings that Dr. Gale's advertisements were misleading and that his treatment of Keator violated the minimal standards of acceptable podiatric practice. For those two violations, the Board imposed a $6,371.16 civil penalty against Dr. Gale and placed him on unsupervised probation for two years.

¶9 The district court reversed the Board's decision, concluding the Board violated N.D.C.C. § 28-32-08(1) by conducting an "investigatory hearing" without giving Dr. Gale notice; N.D.A.C. § 64-04-01-02 by conducting a preliminary investigation instead of referring the matter to counsel to investigate; and N.D.C.C. § 28-32-12.2(1) by allowing Board members who had investigated the allegations to ultimately decide the matter. The court said

"Clearly, there has been discriminatory, selective prosecution by the Board. And, it is rather obvious that the Board has held Dr. Gale to a stricter standard than it has concerning identical conduct on the part of two Board members who participated in the proceedings against Dr. Gale.

"Dr. Lee Hofsommer, a Board member whose advertising was found to be misleading by the Board, was not subjected to any disciplinary action. Despite the Board's knowledge that Board president Dr. Olson practiced co-extensively in the anatomical area claimed in the Administrative Complaint against Dr. Gale to be outside the scope of practice, no disciplinary action was brought against Dr. Olson.

"What is most striking in this case is Dr. Olson's participation in bringing the administrative action against Dr. Gale.... [P]articipation by Dr. Olson permeated the entire proceedings with partiality. Dr. Olson is involved in a civil suit against Dr. Gale."

The court concluded the Board's order imposing discipline was not in accordance with the law; the Board failed to comply with N.D.C.C. ch. 28-32; and the Board's procedures did not afford Dr. Gale a fair hearing. The court also ruled the Board's actions were without substantial justification and awarded Dr. Gale $4,000 in attorneys' fees and $1,500 in expenses. The Board appealed.

II

¶10 In appeals from decisions by administrative agencies, we review the agency decision and not the district court decision. S.N.S. v. North Dakota Dep't of Human Serv., 474 N.W.2d 717, 719 (N.D.1991). Sections 28-32-19 and 28-32-21, N.D.C.C., outline our standard of review of decisions by an administrative agency. Jacobs v. North Dakota State Pers. Bd., 551 N.W.2d 779, 781 (N.D.1996). Under N.D.C.C. § 28-32-19, we affirm the Board's order unless:

"1. The order is not in accordance with the law.

"2. The order is in violation of the constitutional rights of the appellant.

"3. Provisions of this chapter have not been complied with in the proceedings before the agency.

"4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

"5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

"6. The conclusions of law and order of the agency are not supported by its findings of fact."

In considering whether the Board's findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings of fact or substitute our judgment for the Board's decision. See Jacobs, 551 N.W.2d at 781. Our review of the Board's findings is limited to whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Id.

III
A

¶11 The Board contends the district court erred in deciding two issues relating to the commencement of the administrative proceedings against Dr. Gale. First, the Board asserts the court erred in concluding the Board violated N.D.A.C. § 63-04-01-02 by conducting the initial investigation instead of referring the matter to its counsel.

¶12 Section 63-04-01-02, N.D.A.C., provides, in relevant part:

"Preliminary investigation. All complaints alleging or implying violations of North Dakota Century Code chapter 43-05 or this title shall be referred to the board's counsel with instructions to investigate.

"1. Upon the initial investigation, the board's counsel will recommend to the board what action, if any, the board shall take.

"2. Complaints involving minor or routine issues may, at the discretion of the board, be assigned to a member of the board. Typically, such assignment will be a written inquiry, explanation, or warning to the person or persons accused, with copies of all correspondence to the other members.

"3. The board may hold a preliminary hearing to determine whether a formal administrative hearing is necessary."

¶13 Here, the administrative proceeding against Dr. Gale was initiated after Dr. Dahl and Dr. Emery wrote the Board's president, Dr. Olson, about the scope of practice for podiatrists, specifically Dr. Gale. According to Dr. Olson, he referred the inquiries to the Board's legal counsel, who advised the Board to...

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