Huff v. BD. OF MEDICAL EXAMINERS-INVESTIGATIVE PANEL B

• Court: North Dakota Supreme Court
• Writing for the Court: MARING, Justice.
• Citation: Huff v. BD. OF MEDICAL EXAMINERS-INVESTIGATIVE PANEL B, 2004 ND 225, 690 N.W.2d 221 (N.D. 2004)
• Decision Date: 14 December 2004
• Docket Number: No. 20040151.,20040151.
• Parties: John D. HUFF, M.D., Plaintiff and Appellant v. NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS-INVESTIGATIVE PANEL B, Defendant and Appellee.

690 N.W.2d 221

2004 ND 225

John D. HUFF, M.D., Plaintiff and Appellant v. NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS-INVESTIGATIVE PANEL B, Defendant and Appellee.

No. 20040151.

Supreme Court of North Dakota.

December 14, 2004.

Ralph A. Vinje, Vinje Law Firm, Bismarck, N.D., for plaintiff and appellant.

John M. Olson, Olson Cichy Bliss, Bismarck, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] John D. Huff, M.D., appealed a district court order affirming a license suspension order of the North Dakota State Board of Medical Examiners ("Board"). Under the circumstances presented in this case, we conclude Huff's testimony established the requisite standard of care and his deviation from it. We affirm.

I

[¶ 2] The Board's Investigative Panel B issued a complaint against Huff arising out of the administration of an Ishihara test, or "I-test," to Shawn Anderson by a nurse and then by Huff. An Ishihara test is a test "for color vision deficiency that utilizes a series of pseudoisochromatic plates on which numbers or letters are printed in dots of primary colors surrounded by dots of other colors; the figures are discernible by individuals with normal color vision." PDR Medical Dictionary at 1804 (2d ed.2000). The complaint alleged, in part:

Respondent has engaged in the performance of dishonorable, unethical, or unprofessional conduct likely to deceive, defraud or harm the public within the meaning of N.D.C.C. § 43-17-31(6), and/or Respondent engaged in gross negligence in the practice of medicine within the meaning of N.D.C.C. § 43-17-31(15), specifically:

A patient being examined for a trucker's license had failed the Ishihara Test for color blindness which was administered by an LPN. Responded subsequently re-issued the test and proceeded to manually assist the patient by tracing out the numbers or symbols with the patient's index finder. The Respondent further permitted the patient to keep both eyes open during the exam. Upon conclusion of the test, Respondent crossed out the failed results on the patient's medical chart and deceptively wrote that the patient had passed the test once he had the exam explained to him. Respondent's actions violated appropriate protocol for the Ishihara Test.

[¶ 3] After a hearing, an administrative law judge ("ALJ") made the following recommended findings of fact, among others:

14. Huff said further the appropriate protocol for giving the I-test for someone with congenital color-blindness is to give the book of plates (exhibit 2B) to the patient, give the patient some instructions, and give them three seconds to identify the plates....

15. The I-test can also be used to evaluate someone with acquired color blindness. Huff said that when giving it to someone with this condition the key is to give them more time with each chart and to coach them. He said that in this circumstance the patient is allowed to trace the figures with a brush or a finger. He said when giving the I-test there needs to be adequate lighting.

....

24. Huff also said that Winter's writing that Anderson had missed all of the plates except one of those plates he was shown (thirteen plates missed) was totally inconsistent with someone who had 20/20 vision, if the test is administered by a skilled individual.

25. Huff said that based on what he perceived to be Anderson's problem he went ahead and tried to evaluate Anderson for being affected by toxic substances....

26. When Huff administered the I-test to Anderson he said [he] explained to Anderson that he could take as much time as he wanted on the test, that he could hold the book in any position he wanted, and that he could also take his finger and trace the numbers or images. Huff said he explained that and showed Anderson how to do it by taking his hand and showing him how to trace. Huff said that he followed Anderson through all of the plates, coaching him as he went through the book, reminding him to trace and to take his time to identify the charts. Huff said he actually helped Anderson trace one of the plates, the first plate in the I-test, by taking his finger and showing him how to trace the number and then told him to do the same on all of the other images, saying that if he could identify them without tracing that was fine, but if he could not, to take his finger and trace out the figure. Huff said that he would occasionally prompt Anderson on other figures, verbally reminding him that he could trace. Huff said that Anderson could see the image on plate number one, the one which Huff traced with him. Huff said that given enough time with verbal coaching and prompting him, Anderson could identify all of the images (numbers or patterns) on the other plates, some presenting more difficulty than others. Huff said he gave Anderson encouragement throughout the test.

27. At the conclusion of administering the I-test to Anderson, Huff wrote a note on Anderson's chart, "was able to identify all the figures once he had the exam explained to him." Then, Huff marked through the previous results for the I-test, the results listed on the chart by Winter....

29. At the hearing, Huff agreed that if the evidence showed that he had taken Anderson's finger with his hand and traced the figures for each of the plates of the I-test found in the book, exhibit 2B, it would have been inappropriate for him to do so.

....

33. The rules of the I-test are rules for determining congenital color-blindness. Huff used the test for evaluation not in accordance with the I-test rules. Huff said there is no[] set of rules for use of the I-test as he used it. Huff said he relied on his training and experience.

37. Sandy Winter is an LPN at TRE. She is certified as an ophthalmic assistant and an optometric assistant. She has experience over the years in giving the I-test and has been trained to do it....

38. Winter checked Anderson in at TRE on December 14, 2000..... She gave him the I-test. She said that she explained the I-test to him and then with an occluder had him look one eye at a time at the book, at each of the plates in order. Exhibit 2B. Anderson correctly identified plate numbers 1 and 9 with either eye. She said that Anderson had difficulty with all of the other plates frequently saying that he could not see anything....

41. Marlene Johnson is a certified ophthalmic assistant and certified optician at TRE....

43. Johnson was with Huff when he began examining Anderson. She watched Huff examine Anderson and g[a]ve him some tests. She watched Huff give Anderson the I-test....

44. Johnson said that after Anderson told Huff that he could not see most of the figures, Huff helped Anderson by taking his hand and helping him physically trace the figures, encouraging him and coaching him as they went. Johnson said that Anderson did not trace any of the figures on his own. Even then, she said, Anderson was having trouble and several times said he couldn't see the figures, but Huff encouraged him by saying, "can't you feel the figure." Again, Johnson said that Huff continually tried to help Anderson by physically helping him trace and by coaching and encouraging him.

....

47. After Johnson testified, Huff denied tracing with Anderson's finger on more than one plate. Huff said that if the I-test would have been given with him holding Anderson's finger and helping him trace on every figure of the I-test, that would be inappropriate, unprofessional, and gross negligence. Huff said he "can not image it being done."

....

56. Anderson said that he had much difficulty with the first test given by Winter. He said that he had the same amount of difficulty taking the test given by Huff.

57. Anderson said that Huff assisted him at the beginning of the test. He said that Huff took his finger with Huff's hand and traced figures during the test, more than three times. He said that if he did any figures without physical assistance from Huff it was after a long while. He said that he could do the test after Huff showed him by tracing with him.

[¶ 4] In analyzing the evidence, the ALJ found:

The ALJ chooses to believe the evidence of Anderson which was supported by the evidence of Johnson and Farris. There is no doubt, based on that evidence, that Huff did give the I-test to Anderson when he was dilated and that he actually helped Anderson with the I-test by taking Anderson's finger with his hand and tracing the numbers and figures on the I-test with him. Huff traced with Anderson's hand more than once, probably more than three times.

Huff crossed out Winter's findings of the I-test she gave Anderson and then wrote that Anderson "was able to identify all the figures once he had the examination explained to him." Exhibit 1.

Huff did not appropriately conduct the I-test. Huff deceptively wrote that Anderson was able to identify all the figures of the I-test, implying that he passed the test. In fact, when Huff initially wrote a note to Dr. Andrzejewski he implied the same. Exhibit 1, page 4. When Huff later wrote to Dr. Andrzejewski about Anderson he specifically said that "once the patient had the test explained to him he was able to identify all of the plats [sic] with no difficulty ... [m]y impression is a normal color test, a normal eye exam and an excellent candidate for his truck-driving license." Exhibit 1, page 3.

....

The evidence shows, by the greater weight of the evidence, that Huff's actions in crossing out Winter's failed I-test results on Anderson's medical chart, writing something different, and then, in effect, writing to Dr. Andrzejewski that Anderson had passed the I-test, under the circumstances, is dishonorable, unethical and unprofessional conduct likely to deceive, defraud or harm the public, and further, was gross negligence. Huff acknowledged that if he did what is alleged he did violate the law as alleged. The evidence shows he did what was alleged. In the face of two contrary witnesses, Huff continues to deny that he actually held Anderson's finger

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