Krueger v. Board of Professional Discipline of Idaho State Bd. of Medicine

• Decision Date: 08 July 1992
• Docket Number: P,No. 19323,No. M-3549,M-3549,19323
• Citation: 122 Idaho 577,836 P.2d 523
• Parties: Philip M. KRUEGER, M.D., Licenseetitioner-Respondent and Cross Appellant, v. BOARD OF PROFESSIONAL DISCIPLINE OF THE IDAHO STATE BOARD OF MEDICINE, Respondent-Appellant and Cross Respondent. Boise, February 1992 Term
• Court: Idaho Supreme Court

Page 523

836 P.2d 523

122 Idaho 577

Philip M. KRUEGER, M.D., License No. M-3549, Petitioner-Respondent and Cross Appellant, v. BOARD OF PROFESSIONAL DISCIPLINE OF THE IDAHO STATE BOARD OF MEDICINE, Respondent-Appellant and Cross Respondent.

No. 19323.

Supreme Court of Idaho,

Boise, February 1992 Term.

July 8, 1992.

Rehearing Denied Sept. 30, 1992.

Merrill & Merrill, Chartered, Pocatello, for petitioner-respondent and cross appellant. David C. Nye argued.

REINHARDT, Judge pro tem.:

This is an appeal from a Decision on a Petition for Judicial Review of the decision of the Board of Professional Discipline of the Idaho State Board of Medicine (hereafter On November 8, 1988, the Board initiated disciplinary proceedings against Dr. Krueger for violations of I.C. § 54-1814(7), which allows discipline of a physician based upon:

[122 Idaho 579] "Board") concerning the license of Philip M. Krueger, M.D., to practice medicine. The Board appeals from the district court's decision remanding the case to the Board for further findings and conclusions as to patients A, B, C, D and E, and reversing the Board's decision as to patient H. Dr. Krueger cross-appeals, contending that the Board used unconstitutionally vague grounds for revoking his license, violated his constitutional right to due process, and erred in not considering a jury verdict exonerating him of malpractice in the physician-patient relationship with patient F.

The provision of health care which fails to meet the standard of health care provided by other qualified physicians in the same community or similar communities, taking into account his training, experience and the degree of expertise to which he holds himself out to the public.

At issue was Dr. Krueger's conduct as it related to eight patients (patients A-H), with alleged incidents of breach of the standard of care including the following:

Patient A: Failure to adequately monitor an infant's condition during the birthing process, and a lack of preparation in transferring the mother and infant to a hospital once evidence of meconium aspiration was available.

Patients B, C, D and E: Performing elective surgeries while incapacitated by a wrist injury which necessitated the surgeries be performed with one hand.

Patient F: Use of forceps during delivery without knowing the exact position of the infant's head.

Patient G: No violation of the standard of care was found.

Patient H: Delay in performing a C-section. The Board also found that Dr. Krueger used contraindicated medications. Whether or not Dr. Krueger had adequate notice that the Board was challenging his use of medication is one of the issues presented on appeal.

Following a five-day hearing in which extensive expert testimony was admitted on the subject of whether a violation of the standard of care had taken place, a designated hearing officer made a decision and report to the Board on November 30, 1989, with proposed findings of fact, conclusions of law and order.

On January 30, 1990, after conducting an independent review of the record and reviewing the recommendations of the hearing officer, the Board issued its findings of fact, conclusions of law and final order. The Board found that Dr. Krueger had violated the community standard of care in his treatment of patients A, B, C, D, E, F and H. The Board's order revoked Dr. Krueger's license, but stayed revocation so long as Dr. Krueger complied with certain terms and conditions outlined by the Board. Dr. Krueger appealed that order to the district court.

On appeal, the district court remanded the case to the Board for further findings and conclusions on whether "a consensus of expert opinion" supported the Board's findings that Dr. Krueger had violated the community standard of care as to patients B, C, D and E. Furthermore, the court, upon finding that there was a variation between the allegations contained in the complaint and the evidence presented at the hearing, directed the Board to strike its conclusion that Dr. Krueger's management of the case of patient H did not meet the standard of care provided by other qualified physicians in the Boise community, and directed the Board to reconsider its decision to discipline Dr. Krueger. The district court also found that the jury verdict absolving Dr. Krueger of liability as to patient F had no evidentiary or preclusive effect, and that the Board was correct in refusing to consider that verdict. Both the Board and Dr. Krueger petitioned for a rehearing, which petitions were denied. The district court did, however, modify its original decision to require the Board to also reconsider its finding as to patient A to determine whether there was a consensus of expert opinion that Dr. Krueger

[122 Idaho 580] failed to meeting the community standard of care.

I. UNCONSTITUTIONAL VAGUENESS ARGUMENT

Krueger argues that I.C. § 54-1814(7) is unconstitutionally vague on its face because it does not define what conduct constitutes a breach of the local community standard of care. As applied to professional disciplinary proceedings, the void for vagueness concept has been addressed by this Court, which found a statute to be unconstitutionally vague

... when its language does not convey sufficiently definite warnings as to the proscribed conduct, and its language is such that men of common intelligence must necessarily guess at its meaning.

Wyckoff v. Board of County Commrs. of Ada County, 101 Idaho 12, 15, 607 P.2d 1066, 1069 (1980) (cited in H & V Eng'g v. Board of Professional Engrs., 113 Idaho 646, 747 P.2d 55 (1987)).

We agree with the district court's finding that this statute is not unconstitutionally vague on its face, even though the Board has not promulgated any regulations to further define or explain the statute. The language of the statute is similar to the well-accepted definition of medical malpractice contained in I.C. § 6-1012, and is merely a codification of already existing case law. Bolen v. United States, 727 F.Supp. 1346 (D.Idaho 1989); LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980); Swanson v. Wasson, 45 Idaho 309, 262 P. 147 (1927). The finding of the district court that I.C. § 54-1814(7) is not unconstitutionally vague on its face is therefore affirmed.

Dr. Krueger also argued that the statute was vague as applied, relying on this Court's decisions in H & V Eng'g v. Board of Professional Engrs., 113 Idaho 646, 747 P.2d 55 (1987) and Tuma v. Board of Nursing, 100 Idaho 74, 593 P.2d 711 (1979). The district court held that to avoid a finding of vagueness as applied, Tuma and H & V required the Board to find from the evidence that the standard it adopted was one recognized by a "consensus of expert opinion."

In Tuma, a registered nurse sought review of an order of the Board of Nursing which suspended her license under I.C. § 54-1422(a)(7), for interfering with a doctor-patient relationship by discussing alternative treatment methods with a terminally ill cancer patient. The primary issue on her appeal was whether her due process rights were satisfied by a statute which authorized the suspension of her professional license to practice nursing on the grounds of "unprofessional conduct" in the absence of statutes or regulations specifically defining the conduct which would be deemed unprofessional.

This Court recognized in Tuma, that the right to practice one's profession is a valuable property right and that a state cannot exclude a person from the practice of his profession without having provided the safeguards of due process. 100 Idaho at 77, 593 P.2d at 714 (citing Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), and Ferguson v. Board of Trustees of Bonner County, School Dist. No. 82, 98 Idaho 359, 364, 564 P.2d 971, 976 (1977)). In Tuma, this Court applied a two-pronged test to the void for vagueness doctrine, noting that:

Not only are those whose activities are proscribed entitled to definite standards by which they may be guided, but it is equally important that the standards are there to guide those officers or agencies required to pass judgment on licensees called to account for their conduct.

100 Idaho at 80, 593 P.2d at 717. We found that the statutory definition of "unprofessional conduct" in question did not adequately warn Tuma of the possibility that her license would be suspended if she engaged in conversations with a patient regarding alternative procedure.

In Tuma and H & V, we held that the administrative boards could not rely merely on their own expertise, experience and collective knowledge, but must articulate clear standards which will warn the professional as to which acts are unlawful. We Tuma may be further distinguished in that it was not the Board of Nursing which found Tuma guilty of unprofessional conduct, but a hearing officer who "was not possessed of that expertise born of 'personal knowledge and experience' which would have enabled him, albeit after the fact, to determine whether Tuma had indeed acted unprofessionally." 100 Idaho at 81, 593 P.2d at 718. The Board of Nursing's only function was to approve or disapprove the decision of the hearing officer who had only a legal background. In this case the finding that Dr. Krueger had violated the community standard of care came directly from the Board of Professional Discipline of the Idaho State Board of Medicine, which was comprised of members of the medical community who did possess expertise born of personal knowledge and experience. The utilization of this experience, technical competence, and specialized knowledge in the evaluation of evidence is specifically permitted by I.C. § 67-5210(4).

                [122 Idaho 581] find the facts of this case distinguishable from those in Tuma and H & V.   In both of those cases the respective boards did not rely on the testimony of expert witnesses with regard to the professional standards in question, and instead relied solely on the expertise of the

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