In re Setliff, No. 21966

• Decision Date: 15 May 2002
• Docket Number: No. 21966, No. 21982.
• Citation: 2002 SD 58,645 N.W.2d 601
• Parties: In the Matter of the Medical License of Dr. Reuben SETLIFF, M.D.
• Court: South Dakota Supreme Court

645 N.W.2d 601

2002 SD 58

In the Matter of the Medical License of Dr. Reuben SETLIFF, M.D.

Nos. 21966, 21982.

Supreme Court of South Dakota.

Argued on November 14, 2001.

Decided May 15, 2002.

Mr. Neil Fulton, Mr. Brent Wilbur of May, Adam, Gerdes and Thompson, Pierre, South Dakota, Attorneys for appellant, SD Board of Medical and Osteopathic Examiners.

Mr. Jeffrey G. Hurd, Mr. Michael A. Hauck of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorney for appellee, Setliff.

AMUNDSON, Justice.

[¶ 1.] The South Dakota Board of Medical and Osteopathic Examiners (Board) appeals regarding Dr. Reuben Setliff's (Setliff) medical license. The Board's decision to revoke Setliff's license was reversed by the circuit court. We affirm.

FACTS

[¶ 2.] In 1999, Setliff testified in a malpractice action involving a Brookings physician, Dr. Robert Rietz.¹ In preparation for trial, Setliff was deposed regarding a review of his practice while he was employed at the Memorial Hospital of Sheridan County in Sheridan, Wyoming. He acknowledged that his practice had been reviewed, and as a result, he was required to obtain a second opinion prior to performing pediatric microantrostomy,² but he denied the characterization as a "restriction" on his privileges.

[¶ 3.] The parties disagree as to whether the review was performed as a result of a complaint, or sua sponte by the hospital. Setliff acknowledged, however, that a letter from another physician concerning the treatment of the physician's son may have prompted the hospital to look into his practice, but testified that the review was not based on this complaint. Following the hospital's review, Setliff was ordered to obtain a second opinion from a board-certified otolaryngologist prior to performing mircroantrostomy on patients under twelve-years-old.

[¶ 4.] At the trial of the Heiberger malpractice case, Setliff testified on behalf of the plaintiff. During cross-examination by the defense, he again denied that an investigation resulted from a complaint while he was in Sheridan. He did admit that a two-year peer review had occurred. In denying the defense counsel's interpretation of the peer review during cross-examination, he testified to the following:

Q. Now, was there an investigation done by the Executive Committee at the [Sheridan] hospital which included hiring independent physicians to review your cases when you were at the hospital in Sheridan, Wyoming?

A. With regard to what, ma'am?

Q. Investigation into complaints in regard to your practice of medicine?

A. No.

...

Q. Was there not an Executive Committee that contracted outside reviewers, three Board certified otolaryngologists, to provide an independent, unbiased review of your hospital records?

A. That took place in the absence of a specific complaint.

Q. And the complaint was in regard to your practice of medicine; is that correct?

A. There was no complaint.

Q. The complaint was in regard to your performing the surgical procedure, microantrostomy?

A. Absolutely not.

Q. Do you agree, Dr. Setliff, that an investigation was done?

A. Absolutely not.

Q. Do you agree that your privileges were restricted ... or limited in any way while you were practicing in the state of Wyoming.

A. Absolutely not.

[¶ 5.] The defense lawyer went on to have Setliff read information from the findings of fact and conclusions of law, In the Matter of the Staff Privileges of Reuben C. Setliff, M.D., from the Sheridan hospital, which stated:

Dr. Setliff shall be required to obtain a preoperative second opinion from a Board Certified Otolaryngologist who has examined his patients before performing microantrostomy on patients 12 years of age and under. The second opinion need not agree with Dr. Setliff's opinion, but the patient's custodial parents or guardians shall acknowledge in writing that they have received the second opinion, and have made a decision to permit the surgery on the child with full knowledge of any diversity of opinion.

Defense counsel then questioned Setliff about a lawsuit he brought against the Sheridan hospital based on that peer review.³

[¶ 6.] After testifying in the trial, Setliff was notified that the Board was undertaking an investigation regarding his testimony in the Heiberger medical malpractice case. The Board held an informal conference on June 6, 2000. Charvin Dixon, counsel for the Board, told Setliff that Kathryn Hoskins, defense counsel in the malpractice case, had filed a complaint alleging Setliff had testified falsely at trial, when in fact the Board contacted Hoskins of its own volition and requested a transcript from the malpractice case. Setliff also discovered during the informal conference that Dr. Ferrell, who was an expert witness for Reitz at the malpractice case, was on the committee that investigated Setliff's testimony.⁴

[¶ 7.] Setliff claimed the testimony under investigation was based, in part, on the advice of counsel. Before Setliff applied for staff privileges in Sioux Falls, Setliff had hired an attorney who specialized in disputes between physicians and hospitals to determine if the second opinion requirement imposed on him by the Sheridan hospital constituted a restriction on his privileges. The attorney advised him that the second opinion requirement did not equate to a privilege restriction. Therefore, the attorney advised Setliff that he need not disclose this incident in applications for privileges at other hospitals.

[¶ 8.] After the investigation and informal conference, the Board found Setliff had made false statements regarding his history at the Sheridan hospital and that Setliff "knowingly and intentionally testified falsely as an expert witness" in the Heiberger case, which was determined to be a "serious breach of law, ethics, and professional decorum." It further concluded that this constituted conduct "unbecoming a person licensed to practice medicine... in violation of SDCL 36-4-29(2)." Importantly, the Board also held that "conduct unbecoming a person licensed to practice medicine does not require proof in strict conformance to any legal standards for perjury or false statement as defined by South Dakota law." Despite the fact that Setliff was advised by counsel before the malpractice case began that he had not had his privileges restricted, the Board stated that "Dr. Setliff's false testimony in the Heiberger case exposed him to personal discredit and brought dishonor and disrepute to the medical profession and was a serious breach of law and ethics." Therefore, the Board revoked Setliff's license for six months and assessed him the costs of the proceeding.

[¶ 9.] The circuit court, on the other hand, reversed and acknowledged Setliff's belief that the second opinion requirement did not constitute a restriction on privileges was justifiably based on the advice of a healthcare lawyer. Therefore, the circuit court held that even if Setliff's characterization of the second opinion requirement was wrong, the evidence demonstrates that Setliff had valid reasons to believe his testimony was truthful. The Board appeals and raises the following issue:

[¶ 10.] Whether the Board abused its discretion by revoking Setliff's medical license for six months based on a finding of conduct unbecoming a person licensed to practice medicine.

STANDARD OF REVIEW

[¶ 11.] We have previously acknowledged that SDCL 1-26-36 governs review of agency decisions. SDCL 1-26-36 provides:

The court shall give great weight to the findings made and inferences drawn by an agency on question of fact.... The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusion, or decision are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in the record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion....

[¶ 12.] We review the administrative agency's decision in the same manner that the circuit court did, with no presumptions of correctness on behalf of the circuit court's decision. Foley v. State ex rel. S.D. Real Estate Comm'n, 1999 SD 101, ¶ 6, 598 N.W.2d 217, 219 (quoting Cheyenne River Sioux Tribe Tel. Auth. v. Pub. Util. Comm'n, 1999 SD 60, ¶ 12, 595 N.W.2d 604, 608) (other citations omitted). Questions of fact are reviewed under the clearly erroneous standard. Id. (citing Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986)). Questions of law, on the other hand, are fully reviewable. Id. (citing Matter of State & City Sales Tax Liability of Quality Railcar Repair Corp., 437 N.W.2d 209 (S.D.1989)). "Mixed questions of law and fact are also fully reviewable." Id. (citing Permann v. Dep't of Labor, Unemp. Ins. Div., 411 N.W.2d 113 (S.D.1987)). See also, Watertown

Co-op. Elevator Assoc. v. S.D. Dept. of Rev., 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171

(reiterating that the traditional standard of review is applicable as provided herein).⁵

[¶ 13.] The standard of review for the revocation of a professional license is as follows:

The general burden of proof for administrative hearings is preponderance of the evidence. We are inclined to adhere to this general principle with the following exception. In matters concerning the revocation of a professional license, we determine that the appropriate standard of proof to be utilized by an agency is clear and convincing evidence.

Id. The "clear and convincing" standard lies somewhere between "the rule in ordinary civil cases and requirements of our criminal procedure, that is, it must be more than a mere preponderance but not beyond a reasonable doubt." Id. (citing Kent v. Lyon, 1996 SD 131, ¶ 15, 555 N.W.2d 106, 111 (additional citations and internal quotations...