Mahnke v. State, Dept. of Health, S-06-918.

Decision Date11 July 2008
Docket NumberNo. S-06-918.,S-06-918.
Citation751 N.W.2d 635,276 Neb. 57
PartiesSteven MAHNKE, M.D., Appellee, v. STATE of Nebraska, DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION AND LICENSURE, Appellant.
CourtNebraska Supreme Court

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellant.

William M. Lamson, Jr., and Denise M. Destache, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

I. SUMMARY

The State brought disciplinary charges against Steven Mahnke, M.D., alleging Mahnke engaged in unprofessional conduct. Following a hearing before the hearing officer, the director of the Department of Health and Human Services Regulation and Licensure (the Department) suspended Mahnke's license to practice medicine and surgery in Nebraska for 90 days. Mahnke moved for judicial review. An issue before the district court was whether the locality rule applied in disciplinary actions for unprofessional conduct. The locality rule is the statutory standard of care for medical malpractice actions under Neb.Rev.Stat. § 44-2810 (Reissue 2004). The district court concluded that the locality rule does apply and determined that the State failed to prove unprofessional conduct under that standard.

The State appealed the district court's decision regarding the locality rule, but we believe the threshold issue is whether the State may discipline a physician for a single act of "ordinary negligence." We use the term "ordinary negligence" here to mean medical negligence that does not show a physician's gross incompetence or gross negligence in treating a patient or a pattern of negligent conduct. We conclude that the State may not discipline a physician for a single act of ordinary negligence. We affirm the district court's reversal of Mahnke's discipline.

II. BACKGROUND

Mahnke has practiced medicine as a board-certified family practice physician in Central City, Nebraska, since 1984. R.C. had been Mahnke's patient since 1985. In 2003, she became pregnant. On December 10, R.C. reported that she had been nauseated and feverish for 2 to 3 days and was experiencing brown vaginal discharge. Mahnke ordered an ultrasound. The radiologist informed Mahnke of fetal demise and stated that the fetus looked like it was probably 13 to 14 weeks into gestation.

Mahnke gave R.C. the option to have an obstetrician-gynecologist in Hastings do a dilation and curettage (D&C) or to have Mahnke do it in Central City. R.C. decided that Mahnke should do the D&C in Central City, and the surgery was scheduled for the following morning at the Litzenberg Memorial County Hospital.

Mahnke did the D&C on December 11, 2003. He initially used a dull curette. R.C. started bleeding "pretty rapidly" soon after the surgery began. Mahnke had difficulty separating the placenta from the uterine wall. He decided he needed to switch to a sharp curette to remove the placenta. After changing to the sharp curette, Mahnke was eventually able to free the placenta. In the process, he perforated the uterus. R.C.'s bleeding slowed after Mahnke removed the placenta. Following the surgery, Mahnke did what he could to stabilize R.C, but she went into cardiac arrest. R.C. was taken by helicopter to St. Elizabeth Regional Medical Center in Lincoln, where she later died. Pathology reports later showed that R.C. suffered from placenta increta. This is a rare condition in which the placenta invades the muscle layer of the uterus, making it difficult to separate the placenta from the wall of the uterus.

In March 2005, the State filed its operative petition for disciplinary action against Mahnke. In that petition, the State alleged that his conduct constituted unprofessional conduct and practice beyond the authorized scope. But the State later moved to dismiss the allegation of practice beyond the authorized scope, leaving only the allegations of unprofessional conduct under Neb.Rev.Stat. § 71-148 (Reissue 2003) and 172 Neb. Admin. Code, ch. 88, § 013 (1999). At the hearing, the State's expert testified that Nebraska family practitioners or obstetrician-gynecologists would provide substandard care if they used dull curettage instead of suction on a second-trimester fetal demise.

Following the hearing, the director found that Mahnke's conduct was unprofessional conduct and practice outside the normal standard of care in Nebraska. The director entered an order suspending Mahnke's license for 90 days, requiring a refresher course in obstetrics, prohibiting him from performing D&C or dilation and evacuation procedures except to save the mother's life or in an emergency, and imposing a 2-year probation upon reinstatement.

Mahnke petitioned the district court for judicial review. The court granted his motion to stay the director's order, on the condition that he not engage in any obstetrical procedures while the case is pending.

Mahnke argued that in determining whether his conduct was unprofessional, the conduct must be judged by the locality rule that applies in professional negligence actions under the Nebraska Hospital-Medical Liability Act. The State argued that the locality rule does not apply to unprofessional conduct in disciplinary proceedings and that Mahnke's conduct should be judged by the national standard of care. The court agreed with Mahnke that the locality rule did apply in determining whether his acts constituted unprofessional conduct for the disciplinary action. Under that standard, the court concluded that the State failed to present clear and convincing evidence that Mahnke's treatment of R.C. was unprofessional conduct under Nebraska's Uniform Licensing Law or § 013.18 of the Department's regulations. The court reversed the director's order.

III. ASSIGNMENTS OF ERROR

The State assigns, restated, that the district court erred in (1) applying the locality rule from the Nebraska Hospital-Medical Liability Act when construing the "unprofessional conduct" discipline grounds and (2) concluding, after erroneously judging the evidence by the locality rule, that the State failed to prove unprofessional conduct by clear and convincing evidence.

IV. STANDARD OF REVIEW

The State appealed the district court's order under Neb.Rev.Stat. § 71-159 (Reissue 2003). That statute provides that "[b]oth parties [to a disciplinary proceeding under the Uniform Licensing Law] shall have the right of appeal, and the appeal shall be in accordance with the Administrative Procedure Act." A judgment or final order rendered by a district court in a judicial review under the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.1 When reviewing such an order, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.2

The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.3

V. ANALYSIS

In its amended petition, the State alleged that Mahnke should be disciplined under Neb.Rev.Stat. § 71-147(10)(Reissue 2003) because his conduct constituted unprofessional conduct as defined in § 71-148 of the Uniform Licensing Law and § 013.18 of the Department's regulations. At all relevant times, the provisions in §§ 71-147 and 71-148 appeared in the Uniform Licensing Law in chapter 71 of the Nebraska Revised Statutes. The Legislature has since transferred these provisions to the Uniform Credentialing Act in chapter 38. We will retain the references to chapter 71. We begin by reviewing the framework of these statutory provisions and the Department's regulation.

1. STATUTORY AND REGULATORY FRAMEWORK

Section 71-147 of the Uniform Licensing Law sets out the general grounds for disciplinary action against a professional license. It states in relevant part: "A license . . . to practice a profession may be . . . limited, revoked, or suspended . . . when the . . . licensee . . . is guilty of any of the following acts or offenses: . . . (10) Unprofessional conduct." Unprofessional conduct is defined in § 71-148 of the Uniform Licensing Law. The introductory paragraph of § 71-148 provides: "For purposes of section 71-147, unprofessional conduct means any departure from or failure to conform to the standards of acceptable and prevailing practice of a profession or occupation or the ethics of the profession or occupation . . ." The State's first charge alleged unprofessional conduct under this general definition in the introductory paragraph of § 71-148.

Following this opening paragraph of § 71-148 are 22 subsections. In subsections (1) through (21), § 71-148 sets out a nonexclusive list of 21 acts of unprofessional conduct. In its second unprofessional conduct charge, the State did not allege that any of these specific examples were applicable. Instead, it alleged unprofessional conduct under subsection (22). Under subsection (22), unprofessional conduct also includes "[s]uch other acts as may be defined in rules and regulations adopted and promulgated by the board of examiners in the profession of the . . . licensee . . . with the approval of the department." Thus, the State's second charge alleges unprofessional conduct under the Department's regulations.

Title 172, chapter 88, of the Nebraska Administrative Code contains the Department's regulations governing the practice of medicine and surgery. Within chapter 88 is § 013, which defines certain acts as "unprofessional conduct, pursuant to § 71-148(22), and where applicable, further construes the unlawful or unprofessional acts listed in . . . §§ 71-147 and 71-148."

Section 013.18 defines unprofessional conduct to include "[a]ny conduct or practice outside the normal standard of care in the State of Nebraska which is or might be...

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