Kirbens v. Wyoming State Bd. of Medicine, No. 98-233.

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtGOLDEN, Justice.
Citation992 P.2d 1056
PartiesDrew J. KIRBENS, M.D., Appellant (Petitioner), v. WYOMING STATE BOARD OF MEDICINE; Robert L. McGuire, M.D., in his official capacity as a Board member; and Duane E. Abels, D.O., in his official capacity as a Board member, Appellees (Respondents).
Decision Date06 December 1999
Docket NumberNo. 98-233.

992 P.2d 1056

Drew J. KIRBENS, M.D., Appellant (Petitioner),
v.
WYOMING STATE BOARD OF MEDICINE; Robert L. McGuire, M.D., in his official capacity as a Board member; and Duane E. Abels, D.O., in his official capacity as a Board member, Appellees (Respondents)

No. 98-233.

Supreme Court of Wyoming.

December 6, 1999.


992 P.2d 1057
Representing Appellant: Eldon E. Silverman of Preeo, Silverman & Green, P.C., Denver, Colorado

Representing Appellees: Don W. Riske, Special Assistant Attorney General, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.

GOLDEN, Justice.

This appeal presents novel issues as to whether state and federal statutes offer protection to an impaired physician facing disciplinary action for misconduct that he claims resulted from disability. The Wyoming Board of Medicine (Board) revoked Appellant Drew J. Kirbens' medical license following a contested case hearing. Although he admits that he poses a significant threat to the safety of the public, he appeals the decision to revoke, asserting that his disability entitled him to voluntarily relinquish his license and seek treatment in an appropriate program.

Determining that neither state nor federal statute protects Kirbens from disciplinary action upon an admission that he poses a significant threat to the safety of the public, we affirm the decision of the Board.

ISSUES

Kirbens presents the following issues for our review:

1. Does the plain meaning of W.S. § 33-26-404(a) and (b) compel the Board to accept the license of a medical doctor who voluntarily relinquishes it and not engage in a punitive course of action?
2. Does the Board's action in requiring a contested hearing and levying penalties violate the Americans with Disabilities Act?
3. In any event, is the Board's finding of willfulness supported by the record?
4. Did the Board violate its own rules and regulations by publicizing its Findings and Conclusions?

The Board rephrases the issues as:

1. Whether the Wyoming Board of Medicine is required to accept the voluntary
992 P.2d 1058
relinquishment of a license when the licensee is the subject of a pending disciplinary proceeding.
2. Whether the disciplinary proceeding before the Wyoming Board of Medicine against Appellant violated the Americans with Disabilities Act.
3. Whether the Findings of Fact, Conclusions of Law and Order issued by the Wyoming Board of Medicine in this case are supported by substantial evidence found in the record of the agency proceeding.
4. Whether the Wyoming Board of Medicine violated its own rules by publicly disclosing the Findings of Fact, Conclusions of Law and Order issued by it in this case.

FACTS

As Kirbens was a licensed Wyoming medical doctor, his license was subject to the provisions of the Wyoming Medical Practice Act and the Board's Rules and Procedure. On January 2, 1997, representatives of the Board filed a first complaint against Kirbens, notifying him that it would hold a contested case hearing to consider disciplinary action. As grounds for disciplinary action, the complaint asserted that Kirbens' negligence and malpractice violated statutory prohibitions against willful and consistent utilization of medical service or treatment which was inappropriate or unnecessary pursuant to Wyo. Stat. Ann. § 33-26-402(a)(xxii) and Wyo. Stat. Ann. § 33-26-402(a)(xviii). An amended complaint was then filed on February 27, 1997, asserting that Ivinson Memorial Hospital in Laramie, Wyoming, had taken an adverse action against Kirbens' privileges as of January 14, 1997, by suspending him for an indefinite period, which is also statutory grounds for discipline, pursuant to Wyo. Stat. Ann. § 33-26-402(a)(xxvi). A second amended complaint was filed asserting other violations of the Act arising out of a surgery, on or about June 9, 1997, at Memorial Hospital of Converse County, in which a patient subsequently died.

In July of 1997, Kirbens agreed to temporary restrictions of his practice, including a prohibition from surgical or invasive procedures. A third amended complaint was filed by representatives of the Board on October 20, 1997, asserting the same violations but invoking the names of patients in addition to the ones previously listed and asserting a stipulated suspension from Memorial Hospital of Converse County.

Following the filing of the third amended complaint, the hearing examiner continued the hearing until January 8, 1998. At that time, the hearing examiner approved the continued restrictions on Kirbens' practice until final disposition of the complaint. In early November, 1997, Kirbens attended a Professional Assessment Program at Abbott Northwestern Hospital in Minneapolis, Minnesota, for alcohol and drug screening. Those results proved negative, and the program recommended that Kirbens enter a Physicians in Crisis Program at the Menninger Clinic in Topeka, Kansas. He did so on December 15, 1997. In a letter dated December 31, 1997, Dr. Richard R. Irons stated that he had diagnosed Kirbens with bipolar affective disorder Type II and narcissistic personality disorder and was treating him for those conditions.

On January 6, 1998, Kirbens claimed that the applicable Wyoming statute authorized voluntary relinquishment and requested the Board to allow him to relinquish his license, or alternatively, to agree to temporary suspension. He also filed a motion to stay or continue the contested hearing, contending that Wyoming statutes and the Americans with Disabilities Act (ADA) permitted a stay. Kirbens' motions asserted that he was an impaired physician as defined under Wyo. Stat. Ann. § 33-26-102(a)(vii) because he could not practice medicine with reasonable skill and safety due to mental illness or physical illness. He claimed that he was a qualified individual with a disability entitled to protection under the ADA and its applicable regulations. The hearing examiner presented these motions for consideration by the Board. At the hearing, Kirbens stipulated to the Board's jurisdiction, admitted wrongful acts that he claimed were not intentional or willful and requested the Board's help with his physical and mental impairment.

992 P.2d 1059
At the hearing, Kirbens attempted to explore whether the Board's conducting a contested case hearing would violate the ADA. He questioned the Board's executive secretary to ascertain whether the Board permitted physicians impaired by substance abuse to voluntarily relinquish their licenses and receive treatment from a Board program. He succeeded in establishing that a substance abuse treatment program existed, and when he was not allowed to continue, made an offer of proof that Wyoming did not provide similar treatment assistance for physicians with physical or mental illness. Dr. Irons testified that Kirbens was an impaired and disabled physician who, because of his disability, posed a significant risk to the health or safety of others and recommended that Kirbens not practice medicine in any form at this time. In Dr. Irons' medical opinion, Kirbens was competent to decide to relinquish his license to the Board. Kirbens' counsel then argued that Wyoming and federal law required the Board to accept the relinquishment of his license. The Board's counsel argued that a contested case hearing should be held to establish all of the facts in the event of a request for reinstatement. The hearing examiner reserved decision on the motion for relinquishment and held the contested case hearing

The Board issued an order denying the stay and request for relinquishment on the grounds that no evidence showed Kirbens was impaired at the time of the acts that were the subject of the complaint; the request was not timely; and that Kirbens was not covered by the ADA. The Board revoked Kirbens' medical license and ordered he pay a civil penalty of $5,000.00. Kirbens filed a petition for judicial review on both of these orders, and the district court certified the case to this Court. Kirbens also asserted that the Board had published its findings of fact and conclusions of law in violation of Wyo. Stat. Ann. § 33-26-408(c). The district court issued an order permitting all records except the final order be filed under seal.

DISCUSSION

Standard of Review

Wyoming's Medical Practice Act (Act) empowers the Board to govern the practice of medicine in Wyoming and discipline its physicians and surgeons. Wyo. Stat. Ann. § 33-26-101 through § 410 (LEXIS 1999). The Act provides for judicial review of the actions of the Board under the Wyoming Administrative Procedure Act. Wyo. Stat. Ann. § 33-26-407 (LEXIS 1999). We review its actions under Wyo. Stat. Ann. 16-3-114(c) (LEXIS 1999):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Right of Relinquishment

Kirbens contends that Wyoming statute compels the Board to accept his voluntary relinquishment of his medical license and prohibits a hearing when a license is voluntarily relinquished. He asserts that...

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15 practice notes
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...Livestock & Investment Co. v. County of Laramie County, 5 P.3d 774, 779 (Wyo.2000) (quoting Kirbens v. Wyoming State Board of Medicine, 992 P.2d 1056, 1060 (Wyo.1999) (citations omitted)). We construe together all parts of the statutes in pari materia, and, in ascertaining the meaning of a ......
  • Billings v. WYOMING BD. OF OUTFITTERS, No. 03-20.
    • United States
    • United States State Supreme Court of Wyoming
    • April 20, 2004
    ...acts as distinguished from accidental.'" Billings I, 2001 WY 81, ¶ 34, 30 P.3d at 571 (quoting Kirbens v. Wyoming State Bd. of Medicine, 992 P.2d 1056, 1064 (Wyo.1999)). The term "endanger" has "an easily and commonly understood meaning...." Billings I, 2001 WY 81, ¶ 34, 30 P.3d at 571 (quo......
  • BD. OF CTY. COM'RS OF LARAMIE v. Cheyenne, No. 03-50 to 03-56.
    • United States
    • United States State Supreme Court of Wyoming
    • March 3, 2004
    ...the language is unambiguous. Parker Land, 845 P.2d at 1042." Fontaine, 4 P.3d at 894 (quoting Kirbens v. Wyoming State Bd. of Medicine, 992 P.2d 1056, 1060 "`If the language is sufficiently clear, there is no need to resort to rules of construction. When the language is not clear or is ambi......
  • Briggs v. Walker, No. 99-4064-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 15, 2000
    ...C.F.R. § 36.208; DOJ's Title II Technical Assistance Manual ("Title II TAM") 2.8000 (1993); Kirbens v. Wyoming State Board of Medicine, 992 P.2d 1056, 1062-63 (Wyo. 1999) ("The regulatory language establishes that the ADA will not protect a disabled individual whose disability constitutes a......
  • Request a trial to view additional results
15 cases
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...Livestock & Investment Co. v. County of Laramie County, 5 P.3d 774, 779 (Wyo.2000) (quoting Kirbens v. Wyoming State Board of Medicine, 992 P.2d 1056, 1060 (Wyo.1999) (citations omitted)). We construe together all parts of the statutes in pari materia, and, in ascertaining the meaning of a ......
  • Billings v. WYOMING BD. OF OUTFITTERS, No. 03-20.
    • United States
    • United States State Supreme Court of Wyoming
    • April 20, 2004
    ...acts as distinguished from accidental.'" Billings I, 2001 WY 81, ¶ 34, 30 P.3d at 571 (quoting Kirbens v. Wyoming State Bd. of Medicine, 992 P.2d 1056, 1064 (Wyo.1999)). The term "endanger" has "an easily and commonly understood meaning...." Billings I, 2001 WY 81, ¶ 34, 30 P.3d at 571 (quo......
  • BD. OF CTY. COM'RS OF LARAMIE v. Cheyenne, No. 03-50 to 03-56.
    • United States
    • United States State Supreme Court of Wyoming
    • March 3, 2004
    ...the language is unambiguous. Parker Land, 845 P.2d at 1042." Fontaine, 4 P.3d at 894 (quoting Kirbens v. Wyoming State Bd. of Medicine, 992 P.2d 1056, 1060 "`If the language is sufficiently clear, there is no need to resort to rules of construction. When the language is not clear or is ambi......
  • Briggs v. Walker, No. 99-4064-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 15, 2000
    ...C.F.R. § 36.208; DOJ's Title II Technical Assistance Manual ("Title II TAM") 2.8000 (1993); Kirbens v. Wyoming State Board of Medicine, 992 P.2d 1056, 1062-63 (Wyo. 1999) ("The regulatory language establishes that the ADA will not protect a disabled individual whose disability constitutes a......
  • Request a trial to view additional results

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