Mishler v. State of Nev. Bd. of Medical Examiners, 22397

• Decision Date: 24 March 1993
• Docket Number: No. 22397,22397
• Citation: 109 Nev. 287,849 P.2d 291
• Parties: Alan J. MISHLER, M.D., Appellant, v. THE STATE of Nevada BOARD OF MEDICAL EXAMINERS, Respondent.
• Court: Nevada Supreme Court

Page 291

849 P.2d 291

109 Nev. 287

Alan J. MISHLER, M.D., Appellant, v. THE STATE of Nevada BOARD OF MEDICAL EXAMINERS, Respondent.

No. 22397.

Supreme Court of Nevada.

March 24, 1993.

Hamilton & Lynch, Reno, for appellant.

Frankie Sue Del Papa, Atty. Gen., and Page Underwood, Deputy Atty. Gen., Carson City, for respondent.

OPINION

PER CURIAM:

Dr. Alan J. Mishler received his medical degree in 1960 and then completed an internship and residencies in surgery and neurosurgery. In 1978, he was board-certified in neurological surgery. In late 1980, he moved to Reno, intending to associate with another neurosurgeon already practicing in the Reno area. In January, 1981, Dr. Mishler received his license to practice medicine in Nevada.

After a brief association with the neurosurgeon in Reno, Dr. Mishler, appalled at the neurosurgeon's standards of practice and his billing procedures, refused to work with him any longer. Dr. Mishler brought his concerns to the attention of the Chairman of the Department of Neurosurgery at Washoe Medical Center (WMC), the Governor of the State of Nevada, the State of Nevada Board of Medical Examiners (the Board), and an investigator for the Washoe County District Attorney's Office. Despite his colleagues' warnings to keep quiet, Dr. Mishler persisted. At a meeting to review the death of a twelve-year-old boy who, though not brain dead, was removed from a respirator, Dr. Mishler again criticized the neurosurgeon with whom he had associated.

According to the uncontroverted evidence, Dr. Mishler's colleagues, in retaliation against him for his candor, combed the hospital records for any negative findings they could generate against him. In an unusual inquiry, WMC reviewed one hundred five of Dr. Mishler's patient hospital charts and selected approximately thirty-four of those cases as the basis to challenge Dr. Mishler's hospital privileges. Fourteen of these thirty-four cases formed the basis of the initial complaint by the Board against Dr. Mishler.

Based on this evaluation, WMC did not renew Dr. Mishler's hospital privileges. Subsequently, the local anesthesiologists refused to service his private patients, and he was forced to leave Nevada. Even though it had not yet filed any proceedings against Dr. Mishler, the Board refused to respond to inquiries from other state medical boards regarding his license status. As a result, Dr. Mishler could not obtain work elsewhere. ¹ In February, 1985, Dr. Mishler's Nevada license expired due to non-renewal.

On September 17, 1986, three years after WMC's hostile scrutiny of Dr. Mishler's charts caused him to lose his hospital privileges, the Board filed its complaint against Dr. Mishler. The record reflects only one patient's complaint against Dr. Mishler, for whose treatment he was subsequently exonerated. ² On October 6, 1986, Dr. Mishler advised the Board of his intention to defend himself at the hearing. Because he had filed bankruptcy, he requested that the Board provide financial assistance and counsel. Also, he requested that the Board provide him with various documents and all relevant X-rays.

On November 4, 1986, the Office of the Attorney General wrote Dr. Mishler and advised him that the Board would not provide him with financial assistance, counsel, or expert witnesses. It further stated that it was Dr. Mishler's responsibility to secure medical records and X-rays. On December 3, 1986, the Board advised Dr. Mishler that it would not give him the records of the Board's investigation of him because the records were confidential. ³ Although Dr. Mishler requested documents and materials on several occasions, the Board did not provide any materials to Dr. Mishler until shortly before the hearing began on June 5, 1989. The Board only provided Dr. Mishler with the hospital medical records, without X-rays or other radiographic studies, and told him that years earlier WMC had destroyed the X-rays and other radiographic studies under its retention policy. Thus, no X-rays or other radiographs were available at the hearing.

At the hearing, held on June 5 and 6, 1989, and July 7, 1989, the Board's sole witness was Dr. Arthur Lyons. Dr. Lyons, a San Francisco neurosurgeon, had never been licensed in Nevada and had never practiced neurosurgery in Northern Nevada. Dr. Mishler objected to Dr. Lyons' testimony on the grounds that Dr. Lyons was unqualified to testify as to the standards of the Reno medical community. The hearing officer took the objection under advisement and allowed Dr. Lyons to testify. Dr. Lyons' testimony was based solely on his review of the hospital records admitted into evidence. Dr. Lyons did not see any patient personally, did not review any X-rays or radiographs, and did not review Dr. Mishler's office records. Dr. Mishler objected to the admission of the hospital records without their accompanying x-rays and radiographs, and the hearing officer took the objection under advisement. Dr. Mishler testified in his own behalf, and two other neurosurgeons, Dr. Don Olson and Dr. John Clark, also testified in his defense.

After submission of the evidence, the hearing officer issued a written synopsis in which he overruled Dr. Mishler's objections to Dr. Lyons' testimony and to the admission of hospital records without the X-rays and other radiographs. The hearing officer recommended that five of the charges be upheld. On judicial review, the district court found that NAC 630.230(4), ⁴ a regulation with respect to standards of treatment, was unconstitutionally vague and reversed the Board's orders on the three cases in which discipline was based on that regulation. The district court remanded the matter to the Board for reconsideration of the disciplinary decision on the two remaining cases (designated as cases five and seven), which were based on violations of NAC 630.210, ⁵ the regulation with respect to consultation. On remand, the Board modified Dr. Mishler's discipline from license revocation to a public reprimand and set forth restrictions with respect to his reapplication for a Nevada license. The district court dismissed a petition for judicial review, and on July 8, 1991, Dr. Mishler filed a timely appeal to this court.

The standard of review for administrative decisions is well-settled. "The standard of judicial review within ... NRS 233B.140(5) precludes the reviewing court from substituting its judgment for that of the agency." Nev. St. Bd., Dental Exam'rs v. Toogood, 97 Nev. 255, 260, 628 P.2d 301, 305 (1981) (footnote omitted). See Board Med. Exam'rs v. Potter, 99 Nev. 162, 165, 659 P.2d 868, 870 (1983). Judicial review is confined to the record before the administrative agency. NRS 233B.135(1); ⁶ Apeceche v. White Pine Co., 96 Nev. 723, 725, 615 P.2d 975, 977 (1980). The court must affirm the decision of the administrative agency if that decision is supported by substantial evidence in the record. SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987). When the factual findings of the administrative agency are supported by the evidence, they are conclusive, and the district court is limited to a determination of whether the agency acted arbitrarily or capriciously. NRS 612.530(4); ⁷ Employment Sec. Dep't v. Verrati, 104 Nev. 302, 304, 756 P.2d 1196, 1197 (1988). However, this court may set aside an administrative agency's decision if the agency has prejudiced substantial rights. NRS 233B.135(3). ⁸

Dr. Mishler argues that Dr. Lyons, the expert who testified for the Board, was unqualified to testify as to the medical community standards in Reno, and that a local standard should have applied to the charges against him. However, in holding that board-certified specialists should be evaluated by the national standards of their particular specialty, this court expressly overruled the "locality rule" in Orcutt v. Miller, 95 Nev. 408, 414, 595 P.2d 1191, 1195 (1979). Nevertheless, Dr. Mishler argues that Orcutt is confined to medical malpractice cases and does not apply to a license revocation proceeding. Our justifications in Orcutt for abandonment of the locality rule in medical malpractice cases included "ubiquitous national communication networks and increasing standardization of medical training." Id. at 413, 595 P.2d at 1194. The same reasons for abandonment of the locality rule also apply to a license revocation proceeding. Therefore, we disagree with Dr. Mishler, and conclude the hearing officer properly admitted the expert testimony of Dr. Lyons, which was based on a national standard of care.

Next, Dr. Mishler contends that it was the Board's responsibility to arrange and preserve the relevant evidence against him. Therefore, he claims that the proceedings were unfair because the Board denied him access to the evidence (X-rays and radiographs) that would prove or refute the charges against him. Because the Board prevented access to this evidence, none of the experts had an opportunity to review the X-rays. In both of the medical cases involved in this appeal, myelograms ⁹ or X-rays were relevant. In case five, Dr. Lyons testified that the myelogram was normal and questioned Dr. Mishler's findings to the contrary. However, Dr. Lyons never saw the myelogram and did not interview the patient, and neither Dr. Mishler nor his experts had the opportunity to examine the myelogram. In case seven, the radiologist's report on the myelogram differed from Dr. Mishler's reading of it. Dr. Lyons, who never saw the myelogram, based his expert opinion solely on the radiologist's report, even though the operative report confirmed Dr. Mishler's pre-operative diagnosis. Again, neither Dr. Mishler nor his expert witnesses had the opportunity to review the myelogram to compare Dr. Mishler's reported findings with the radiologist's report.

The hearing officer ruled that the absence of the myelograms and X-rays was Dr. Mishler's fault. We conclude that this ruling was erroneous. Dr. Mishler's routine practice...