Kibler v. State, 84SA464

• Citation: 718 P.2d 531
• Decision Date: 12 May 1986
• Docket Number: No. 84SA464,84SA464
• Parties: Claudine Kay KIBLER, Plaintiff-Appellant, v. The STATE of Colorado and the Colorado State Board of Nursing, Defendants- Appellees.
• Court: Supreme Court of Colorado

Page 531

718 P.2d 531

Claudine Kay KIBLER, Plaintiff-Appellant, v. The STATE of Colorado and the Colorado State Board of

Nursing, Defendants- Appellees.

No. 84SA464.

Supreme Court of Colorado,

En Banc.

May 12, 1986.

Joe T. Ulibarri, Denver, for plaintiff-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Lynn L. Palma, Asst. Atty. Gen., Denver, for defendants-appellees.

QUINN, Chief Justice.

The appellant, Claudine Kay Kibler, appeals from a judgment of the Denver District Court upholding the State Board of Nursing's revocation of her license to practice nursing for violating various provisions of section 12-38-217, 5 C.R.S. (1978), of the Nurse Practice Act. She raises several constitutional challenges to the validity of the revocation order. We affirm the judgment.

I.

The appellant was employed as a registered nurse in the Colorado State Veterans' Nursing Home in Florence, Colorado, from January 1976 to November 1979. On November 20, 1979, the State Board of Nursing (Board) suspended her license to practice nursing pending a hearing for alleged acts of negligent, willful, and deceptive nursing practices in violation of section 12-38-217(1)(c), (f), and (h), 5 C.R.S. (1978). The charges arose out of conduct occurring between March 1976 and June 1979 and consisted of the following: seventeen allegations of failure to administer medication, treatment, and feedings to patients; fourteen allegations of making false or incorrect entries in patients' records regarding the administration of medication, treatment, and feedings; numerous allegations of sleeping on duty; three allegations of removing patients' call bells during the night; two allegations of leaving open the door to the medicine storage room; several allegations of patient abuse, including the forced feeding of one patient and hitting the stumps of two amputees against their bed rails; four allegations of failure to check on patients who were reportedly experiencing difficulties; one allegation of failure to recognize that a patient was not dead and could be resuscitated; numerous allegations of failure to make rounds; and charges of permitting unlicensed nurse's aides to administer medication.

The original hearing on the charges was scheduled for January 29, 1980, but was continued until April 14, 1980, at the request of the appellant's counsel. After conducting an eight-day hearing, the hearing officer issued a ruling on March 17, 1981, finding that the appellant had committed various violations as charged and recommending the revocation of her nursing license. The Board affirmed the hearing officer's findings, with some exceptions, ¹ and ordered the revocation of the appellant's license. The appellant unsuccessfully appealed to the district court, which affirmed the Board's decision.

The appellant presents three arguments for reversal: that the provisions of section 12-38-217(1)(c), (f), and (h), 5 C.R.S. (1978), are unconstitutionally vague, both facially and as applied to the circumstances in this case; that the failure of the Board to promulgate standards of nursing conduct and guidelines for discipline deprived the appellant of due process of law; and that the Board violated the appellant's right to due process by failing to conduct a hearing prior to the summary suspension of her license and by imposing the sanction of revocation without considering or giving her credit for the twenty-one month prerevocation period during which her license was under summary suspension. ² We find these claims lacking in merit under both the United States and Colorado Constitutions. U.S. Const. amend. XIV; Colo. Const. art. II, § 25.

II.

The appellant's initial argument is twofold. She first claims that the provisions of section 12-38-217(1)(c), (f), and (h) of the Nurse Practice Act, 5 C.R.S. (1978), are unconstitutionally vague on their face because they fail to delineate with sufficient specificity the nature of the proscribed conduct and further fail to provide adequate standards for the imposition of discipline by the Board. Appellant next argues that the statutory provisions are unconstitutionally vague as applied to her under the circumstances of this case. We conclude that the statutory provisions are sufficiently specific to pass constitutional muster under both a facial and an "as applied" analysis.

A.

Section 12-38-217(1)(c), (f), and (h), 5 C.R.S. (1978), provides as follows:

The board has the power to revoke, suspend, or refuse to renew any license or to place on probation a licensee upon proof that such person:

(c) Has negligently or willfully acted in a manner inconsistent with the health or safety of persons under his care;

* * *

* * *

(f) Has negligently or willfully performed nursing services in a manner which fails to meet generally accepted standards for such nursing services;

* * *

* * *

(h) Has falsified or in a repeatedly negligent manner made incorrect entries or failed to make essential entries on essential patient records. ³

Centering her argument of unconstitutional vagueness on such terms as "inconsistent with," "generally accepted standards," "repeatedly negligent manner," and "essential entries," the appellant claims that those terms are subject to any number of interpretations and thus fail to define sufficiently the nature of the proscribed conduct or to provide adequate guidelines for the imposition of discipline.

A statute is generally presumed constitutional in the first instance, and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt. E.g., People v. Velasquez, 666 P.2d 567 (Colo.1983), appeal dismissed sub nom. Velasquez v. Colorado, 465 U.S. 1001, 104 S.Ct. 989, 79 L.Ed.2d 223 (1984); Colorado Auto and Truck Wreckers v. Department of Revenue, 618 P.2d 646 (Colo.1980). A statute is unconstitutionally vague if it does not provide a fair warning of the prohibited conduct or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement. E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Exotic Coins, Inc. v. Beacom, 699 P.2d 930 (Colo.1985), appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 214 (1985). A statute, however, need not be drafted with scientific exactitude in order to pass constitutional muster. LDS, Inc. v. Healy, 197 Colo. 19, 589 P.2d 490 (1979). Rather, the statutory language must strike a balance between two concerns: it must be sufficiently specific to give fair warning of the prohibited conduct, but must also be sufficiently general to address the problem under varied circumstances and during changing times. Exotic Coins, Inc., 699 P.2d 930; Colorado Auto and Truck Wreckers, 618 P.2d 646.

We are satisfied that the statutory terms singled out by the appellant are sufficiently specific to withstand a challenge of facial unconstitutionality. "Inconsistent" actions are those which are logically incompatible with something else--that something else in this case being the health or safety of the patient. See Webster's Third New International Dictionary 1144 (1961). An "essential" entry on a patient's chart would be one that is of "importance" to the well-being of the patient. See Webster's Third New International Dictionary 777 (1961). The phrase "generally accepted standards" is a common legal concept that refers to norms of conduct applicable to similar persons in like circumstances. E.g. Craft v. Rice, 671 S.W.2d 247 (Ky.1984); see also Restatement (Second) of Torts § 595 (1977). In the case of a medical professional, such as a nurse, compliance with "generally accepted standards" requires the person to exercise that degree of knowledge, skill, and care exercised by other like professionals in the same or a similar community. E.g., Barber v. Superior Court of California, 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983); Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985); see Lee v. State Board of Dental Examiners, 654 P.2d 839 (Colo.1982); Artist v. Butterweck, 162 Colo. 365, 426 P.2d 559 (1967). When the phrase "repeatedly negligent manner" is viewed in the context of the statute as a whole, the meaning of that phrase is all too obvious. We, therefore, have no hesitation in concluding that the provisions of section 12-38-217(1)(c), (f), and (h) provide adequate notice of the proscribed conduct to those persons licensed to practice nursing in this state.

We also are satisfied that the statute provides sufficient guidelines for the imposition of discipline by the Board. A statute is sufficiently specific in this respect if it prescribes the possible penalties that can be imposed for a violation of a statutory proscription. See generally Duenas-Rodriguez v. Industrial Commission, 199 Colo. 95, 606 P.2d 437 (1980); Bennett v. Price, 167 Colo. 168, 446 P.2d 419 (1968); Petersen v. Colorado Racing Commission, 677 P.2d 412 (Colo.App.1983). The sanctions applicable to this case are set out in section 12-38-217(1), 5 C.R.S. (1978), and include revocation, suspension, and probation. Although the statute obviously vests the Board with considerable discretion in the matter of discipline, such discretion serves the useful purpose of permitting the Board to effectively address the varied degrees of culpability that are often associated with acts of professional misconduct and to tailor an appropriate sanction to the particular facts and circumstances of the case. ⁴ In our view, the statutory range of sanctions provides adequate standards for the effective implementation of the Board's disciplinary function.

B.

The appellant also contends that the provisions of section 12-38-217(1)(c), (f), and (h), 5 C.R.S. (1978), are unconstitutionally vague as applied to her under the circumstances of this case. This claim, as we understand it, is that the statute is unconstitutionally vague as applied to the...