In re Greene
| Decision Date | 25 March 2009 |
| Docket Number | No. S-08-0137.,S-08-0137. |
| Citation | 2009 WY 42,204 P.3d 285 |
| Parties | In the Disciplinary Matter of Stuart H. GREENE, D.C., License Number 366, Stuart H. Greene, D.C., Appellant (Petitioner), v. State of Wyoming, ex rel., Wyoming Board of Chiropractic Examiners, Appellee (Respondent). |
| Court | Wyoming Supreme Court |
Representing Appellee: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General; Kennard F. Nelson, Senior Assistant Attorney General. Argument by Mr. Nelson.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] Two patients of licensed chiropractor Stuart H. Greene filed complaints against him with the Wyoming Board of Chiropractic Examiners (Board). Following a contested case hearing, the Board entered an order dismissing one of the complaints and indefinitely suspending Dr. Greene's license to practice as a chiropractor based on the second complaint. Dr. Greene sought review in district court, which affirmed the order. On appeal to this Court, he claims the Board's order is arbitrary, capricious, an abuse of discretion, and not in accordance with the law because of several evidentiary errors, and not supported by substantial evidence. We affirm.
[¶ 2] The issues for our determination are:
1. Whether the Board's order is arbitrary and capricious, an abuse of discretion, or otherwise contrary to law because:
a. The Board denied Dr. Greene access to SS's mental health records and inquiry into her mental health;
b. The Board considered evidence and issues of which Dr. Greene received no notice;
c. The Board allowed a witness to testify who did not file a complaint against Dr. Greene;
d. The Board failed to explain its reasoning for rejecting expert witness testimony favorable to Dr. Greene; and,
e. The Board violated Dr. Greene's due process rights when it allowed access to and use of his expert witnesses' professional licensing records.
2. Whether the Board's order was supported by clear and convincing evidence.
[¶ 3] Dr. Greene was licensed in Wyoming to practice as a chiropractor. In October of 2002, the Board received a complaint from one of his patients. Among other claims, she alleged that in the course of treating her in 2001 Dr. Greene had made sexual advances toward her. While that complaint was pending, the Board received a complaint from another patient of Dr. Greene's. The second complaint, filed by SS, alleged that Dr. Greene sexually assaulted her during treatment in November of 2003. The Board notified Dr. Greene about the complaints and he denied the allegations.
[¶ 4] The Board assigned the complaints to one of its members for investigation. Following the investigation, in 2006, the Board notified Dr. Greene that the investigating Board member together with the Wyoming Attorney General's Office (the State) intended to pursue disciplinary action against him as a result of the complaints for alleged violations of § 33-10-110 of the Chiropractic Practice Act, Wyo. Stat. Ann. §§ 33-10-101 through 33-10-117 (LexisNexis 2005), and Chapter 6, Section 2 of the State Board of Chiropractic Rules and Regulations (Board Rules).
[¶ 5] Section 33-10-110 provides in pertinent part:
(a) It shall be unlawful for any holder of a license according to this chapter to commit any of the following acts:
....
(vi) To be guilty of any ... unethical or unprofessional conduct likely to ... harm the public[.]
....
(b) ... [T]he board may revoke the license and certificate or suspend the license and certificate of any licensee proved guilty of any of the acts stated in section (a).
[¶ 6] Chapter 6, Section 2 of the Board Rules gives the Board the authority to suspend or revoke a license or take other disciplinary action for the following reasons not set forth in the statutes:
....
(b) Immoral, unprofessional or dishonorable conduct;
(c) Practicing chiropractic in such a manner as to endanger the welfare of clients or patients;
....
(f) Engaging in ... sexual ... contact with a client or patient[.]
[¶ 7] Dr. Greene reiterated his denial of the charges and the Board scheduled the matter for hearing.1 The State filed a petition and complaint, asserting the acts complained of were inappropriate, not valid, necessary or acceptable and outside the scope of acceptable standards of chiropractic practice. The State further alleged that in the course of investigating the complaints, another former patient of Dr. Greene's had come forward with an allegation that Dr. Greene touched her in an inappropriate way during treatment. The State sought revocation of Dr. Greene's license.
[¶ 8] Over the course of four days in March and April of 2007, the Board conducted a contested case evidentiary hearing. After the hearing, the Board entered findings of fact, conclusions of law and an order finding the State had proven by clear and convincing evidence that Dr. Greene violated § 33-10-110(a)(vi); Chapter 6, Section 2(b), (c), (f), (o) and (r) of the Board Rules; and the American Chiropractic Code of Ethics A(6), A(7), A(10) and C(2). The Board ordered Dr. Greene's license suspended indefinitely with the opportunity to apply for reinstatement upon satisfying specified conditions. Dr. Greene filed a petition for review of the Board's order in district court. The district court entered an order affirming the suspension of Dr. Greene's license, and Dr. Greene appealed to this Court. While the appeal was pending, Dr. Greene filed a motion to stay the order suspending his license until the appeal was decided. We granted the motion.
[¶ 9] We review an administrative decision as if it came directly from the agency and do not defer to the district court's ruling. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo.2008). Rulings on the admission of evidence are within the sound discretion of the agency as the trier of fact; we will set aside an evidentiary determination only if the agency abused its discretion. McIntosh v. State ex rel. Wyo. Med. Comm'n, 2007 WY 108, ¶ 42, 162 P.3d 483, 494 (Wyo.2007). We review an agency's conclusions of law de novo, and affirm such conclusions only when they are in accordance with the law. Id.
[¶ 10] Disciplinary actions before licensing boards require a more exacting level of proof than typical administrative actions. Dorr v. Wyo. Bd. of Cert. Pub. Accountants, 2006 WY 144, ¶ 13, 146 P.3d 943, 949 (Wyo.2006).
A disciplinary proceeding before a licensing board is an adversary proceeding where the burden is on the complaining party to present its case in a proper manner and to state with precision the charges against the licensee. Those charges must be established by clear and convincing evidence. We have defined clear and convincing evidence to be the "kind of proof which would persuade a trier of fact that the truth of the contention is highly probable."
Id. (citations omitted).
[¶ 11] We apply the arbitrary and capricious standard when agency action prejudices a party's substantial rights or is contrary to, but does not easily fall within, the other standards of review. Id. The arbitrary and capricious standard is not meant to apply to true evidentiary questions but applies instead when, for example, an agency refuses to admit clearly admissible testimony or exhibits or fails to provide appropriate findings of fact or conclusions of law. Id.
[¶ 12] Dr. Greene asserts the Board committed evidentiary error in five instances. We consider each of his claims separately. We begin with his contention that the Board erred when it denied him access to SS's mental health records and the right to inquire into her mental health.
[¶ 13] After receiving notice of SS's complaint, Dr. Greene attempted to obtain copies of her mental health records. SS objected to production of the records. Dr. Greene then served SS with a subpoena duces tecum to produce the records at a deposition. SS did not produce the records and declined to answer questions concerning her mental health treatment during her deposition. Dr. Greene filed a motion to compel production of the records and to require SS to appear and answer questions concerning her treatment. Following a hearing, the Office of Administrative Hearings (OAH) examiner denied the motion finding that the information Dr. Greene sought was protected by the patient-mental health professional privilege provided for in Wyo. Stat. Ann. § 33-27-123 and § 33-38-113 (LexisNexis 2005) and did not fall within any exception.
[¶ 14] Dr. Greene contends it was error to deny him access to SS's mental health information because she placed her mental health at issue by filing the complaint against him. He cites § 33-27-123(a)(vi), governing privileged communications between psychologists and patients, and § 33-38-113(a)(iii), governing such communications between professional counselors and patients, as support for his claim that the information was not privileged under the circumstances. Those provisions state in pertinent part as follows:
§ 33-27-123. Privileged communication.
(a) In judicial proceedings, whether civil, criminal, or juvenile, in administrative proceedings, and in proceedings preliminary and ancillary thereto, a patient or client, or his guardian or personal representative, may refuse to disclose and may prevent the disclosure of confidential information, including information contained in administrative records, communicated to a person licensed or otherwise authorized to practice under this act, or to persons reasonably believed by the patient or client to be so licensed, and their agents, for the purpose of diagnosis, evaluation or treatment of any mental or emotional condition or disorder. The psychologist or school psychologist shall not disclose any...
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