Livingston v. Arkansas State Medical Bd.

• Decision Date: 13 January 1986
• Docket Number: No. 85-201,85-201
• Citation: 701 S.W.2d 361,288 Ark. 1
• Parties: Pat V. LIVINGSTON, M.D., Appellant, v. ARKANSAS STATE MEDICAL BOARD, Appellee.
• Court: Arkansas Supreme Court

Page 361

701 S.W.2d 361

288 Ark. 1

Pat V. LIVINGSTON, M.D., Appellant, v. ARKANSAS STATE MEDICAL BOARD, Appellee.

No. 85-201.

Supreme Court of Arkansas.

Jan. 13, 1986.

Huckabay, Munson, Rowlett & Tilley, Little Rock, for appellant.

Clearley, Mitchell & Roachell by Robert M. Clearley, Jr., Little Rock, for appellee.

HOLT, Chief Justice.

The Arkansas State Medical Board found that appellant, Dr. Pat Livingston, committed "grossly negligent or ignorant malpractice" and ordered her license suspended for 30 days. The doctor appealed to Pulaski Circuit Court where the board's decision was upheld. It is from that holding that this appeal is brought. Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(c) as this case was certified to us by the Court of Appeals to interpret Ark.Stat.Ann. § 72-613 (Repl.1979 and Supp.1985).

The basis of the board's action was that Dr. Livingston had "negligently and repeatedly diagnosed and confirmed the diagnosis of pregnancy of a female patient over a period of four (4) months," when the patient was not, in fact, pregnant. Testimony at the hearing before the board revealed that Mrs. Kathy Hooper, 23, visited Dr. Livingston seven times between September 9, 1983 and January 7, 1984. Mrs. Hooper testified that those visits were for obstetric purposes, since Dr. Livingston told her she was pregnant at the first visit on September 9; treated her as such during subsequent visits; and did not tell her she was not pregnant until January 7. Dr. Livingston denied having ever told Mrs. Hooper she was definitely pregnant and relies on the fact that her medical records do not reveal that specific statement was ever made. During the course of the seven visits, a pregnancy test was performed on Mrs. Hooper with positive results, she was checked for uterine enlargement, placed on vitamins, given a due date of May 6, 1984, and had three ultrasounds. The ultrasounds were performed by Lucy McDaniel, an employee of Dr. Livingston's, who told Mrs. Hooper that the baby was so small she could not get a good picture of it and that the baby might be "hiding." At Mrs. Hooper's final visit, Dr. Livingston told Mrs. Hooper that she was sorry about the amount of time that had gone by, but that she thought Mrs. Hooper understood that she was probably not pregnant.

Dr. Livingston offered the testimony of Dr. Orman Simmons, an obstetrician/gynecologist practicing in Little Rock. Dr. Simmons testified that Dr. Livingston's records were adequate and reflected an appropriate standard of care. He also testified, however, that he would have taken steps before January 7 to determine conclusively whether Mrs. Hooper was pregnant, and that it would not be up to the standard of care in the community to wait four months to tell the patient she was not pregnant, and to not seek a second opinion. Dr. Livingston admitted during her testimony, "I feel that we did let the girl go too long", and that she should have sent her to another doctor who would have told her definitely whether she was pregnant.

The appellant argues on appeal that the trial court erred in failing to find that the decision of the appellee, the Arkansas State Medical Board, was arbitrary, capricious and characterized by an abuse of discretion.

When reviewing administrative action to determine if it is arbitrary or capricious, we determine whether the action lacks a rational basis or hinges on a finding of fact based on an erroneous view of the law. Woodyard, Comm'r v. Ark. Diversified Ins., 268 Ark. 94, 594 S.W.2d 13 (1980), rehearing denied.

The testimony at the hearing provided a rational basis for the board's action. The appellant contends, however, that the decision hinged "on a finding of fact based on an erroneous view of the law." In support of this contention, appellant maintains that the board held Dr. Livingston, a general practitioner, to the same standard of care as that exercised by Dr. Simmons, a specialist. Appellant claims the board thereby violated Ark.Stat.Ann. § 34-2614 (Supp.1985) which provides that the plaintiff in an action for medical injury has the burden of proving the skill ordinarily possessed by members of the profession engaged in the same type of practice. Arkansas Stat.Ann. § 34-2613 (Supp.1985), however, defines "action for medical injury" as "any action against a medical care provider ... to recover damages on account of medical injury." This was an action by an administrative board reviewing the conduct of a professional, and ultimately punishing that professional. It was not an action to recover damages. The statute is therefore inapplicable.

The authorizing statute for the board's action is Ark.Stat.Ann. § 72-613 (Repl.1979 and Supp.1985) which provides that the board may revoke or suspend a license if the holder has committed any acts or offenses defined to be unprofessional conduct. Included in the list of definitions is "(g) grossly negligent or ignorant malpractice." The board's action was not the result of an erroneous application of the law.

The other "erroneous view of the law" argued by appellant is...