Munn v. Montana Bd. of Medical Examiners
| Decision Date | 06 December 2005 |
| Docket Number | No. 04-543.,04-543. |
| Citation | 2005 MT 303,124 P.3d 1123 |
| Court | Montana Supreme Court |
| Parties | Nathan A. MUNN, Petitioner and Appellant, v. MONTANA BOARD OF MEDICAL EXAMINERS, Respondent and Respondent. |
Wendy Holton, Attorney at Law, Helena, Montana, for Appellant.
Ann O'Leary, Legal Services Division, Department of Labor & Industry, Helena, Montana, for Respondent.
¶ 1 Nathan A. Munn (Munn) appeals from an order of the First Judicial District Court, Lewis and Clark County, affirming a decision of the Board of Medical Examiners (Board) to revoke Munn's medical license. We affirm.
¶ 2 We restate and address the following issues on appeal:
¶ 3 1. Was the Board's decision to impose upon Munn a harsher penalty than that recommended by the hearing examiner contrary to law?
¶ 4 2. Was the punishment imposed upon Munn by the Board clearly erroneous, arbitrary or capricious?
¶ 5 Munn, a psychiatrist, was licensed to practice medicine in Montana in 1993. A complaint was filed against him with the Board on October 18, 2001, alleging he had improper sexual relations with a patient. A hearing was held before Gregory L. Hanchett, (Hanchett), a Department of Labor and Industry Hearing Examiner, on May 21, 2003. Hanchett issued his findings of fact, conclusions of law, and proposed order on August 15, 2003.
¶ 6 According to Hanchett's findings of fact, which neither Munn nor the Department of Labor and Industry (Department) took exception to, Munn had been treating Jane Doe (Doe) from December 1997 to July 9, 1999. The two became close during this time, and their families began to socialize together. During Doe's therapy sessions, Munn would occasionally sit next to Doe, hold her hand, rub her back, and hug her. Hanchett found that such actions were inappropriate therapy for an adult patient. On July 9, 1999, Munn and Doe engaged in sexual intercourse, and this affair continued for two years. Doe was vulnerable to Munn's sexual advances, having been a victim of both sexual abuse by her father and rape. Munn continued to prescribe medication for Doe.
¶ 7 Munn decided to end his relationship with Doe during the summer of 2001. Distraught with this development, Doe went to Munn's home in the middle of the night in September 2001, and began hitting Munn. Doe left, but later returned and claimed she had overdosed on tranquilizers. Munn decided that she had not overdosed, and Doe again left. Doe then called Munn, claiming she was suicidal. Munn called an ambulance to have Doe hospitalized, but the ambulance left when Doe convinced the crew that she was not suicidal. She then called Munn again, saying that she had fooled the crew and that she was suicidal. Munn then contacted another psychiatrist, Dr. John Tupper, to initiate protective custody of Doe. Munn informed Dr. Tupper of his relationship with Doe. Hanchett found that Munn would not have disclosed the relationship if not for Doe's actions in September 2001.
¶ 8 Shortly after the events of September 2001, Munn himself began therapy sessions with Dr. John Peters, who was also a psychiatrist. From these sessions, Dr. Peters concluded that Munn did not evidence dishonesty or a history suggestive of predatory sexual activity. Munn was also thoroughly evaluated by Dr. Robert Page at the urging of the Board. Dr. Page's evaluation was that Munn did not appear to purposely use his professional position to maneuver patients into sexual or physical contact with premeditation or a strategic purpose. Dr. Page further concluded that Munn did not appear to pose a threat of any predatory or sexually assaultive behavior to such a degree that it would be necessary to revoke his license to practice. There was no finding that Munn had engaged in inappropriate touching or sexual acts with other patients. He had no history of deviant sexual behavior with any patient other than Doe.
¶ 9 According to Hanchett's conclusions of law, which neither Munn nor the Department took exception to, Munn had engaged in unprofessional conduct in violation of § 37-1-316(18), MCA, by engaging in conduct that did not meet generally accepted standards of practice. Since Munn continued to prescribe medications to Doe after July 9, 1999, the physician-client relationship was found to continue past that date. Munn was found to have exploited Doe through the physician-client relationship between them. Another allegation against Munn, that he had used Doe to obtain medications for his own use or use by a third party, was dismissed because the Department failed to meet its burden of proof.
¶ 10 In Hanchett's proposed order, he suggested five years probation for Munn on condition that he successfully complete 60 hours of remedial education. Hanchett also recommended that Munn enter into a contract with the Montana Professional Assistance Program to address boundary issues, be monitored, complete a treatment or therapy plan, complete a polygraph examination, refrain from acts of unprofessional conduct, and that Munn's license be suspended for 90 days. Munn filed an exception to the proposed 90-day suspension, and the Department filed exceptions to the entire order.
¶ 11 The exceptions filed by both Munn and the Department were considered during oral arguments before the Board on November 21, 2003. During this hearing, Anne O'Leary (O'Leary), a member of the Board and an attorney, said that, under § 2-4-621(3), MCA, the agency may not increase the recommended penalty without reviewing the complete record. She then opined that such an increase was possible in this case, because all members of the Board indicated they had reviewed the complete record.
¶ 12 O'Leary also stated that a violation such as Munn's could result in revocation of his license under § 37-1-312, MCA, which mandates that the Board consider sanctions necessary to protect the public. She then explained how Munn's actions constituted sexual misconduct under the American Medical Association's standards of medical practice, and that Munn's actions were unethical under the American Psychiatric Association's principles of medical ethics. She went on to tell the Board that medical license revocations for sexual misconduct had been upheld by courts in multiple jurisdictions. She then said: Finally, O'Leary concluded as follows: "Accepting the Hearing Examiner's proposed order means that the board is and will be accepting and allowing any so-called mitigating circumstances, disease, divorce, loneliness, anger, pathos, you name it, as an excuse for a physician to have sexual intercourse with a patient."
¶ 13 The Board issued its final order on November 25, 2003. This final order stated:
The [Board] has reviewed the Hearing Examiner's Findings of Fact, Conclusions of Law and Proposed Order dated August 15, 2003 and the entire record in this matter including the transcript of the hearing held on May 21, 2003, all exhibits admitted into evidence and all prehearing motions, discovery requests, responses thereto, briefs of the parties and exceptions and responses to exceptions filed by the parties.
The Board accepted Hanchett's findings of fact and conclusions of law without modification. However, the Board ordered that Munn's license to practice medicine in Montana be revoked with Munn being unable to reapply for a medical license in Montana for two years from the date of the final order. Munn petitioned the District Court to review the Board's decision to revoke his medical license.
¶ 14 The District Court affirmed the decision of the Board in an Order on Petition for Judicial Review issued May 28, 2004. The District Court held that the Board followed the procedure set forth in § 2-4-621(3), MCA, to increase the penalty against Munn, and the penalty increase was not an abuse of the Board's discretion. The District Court rejected Munn's argument that the Board's penalty increase was not supported by the findings of fact, noting that the Board consists of members of the medical profession with the expertise to determine an appropriate sanction and the authority to increase the proposed penalty. The District Court also rejected Munn's argument that the statements made by O'Leary were erroneous and that the Board's proceedings were affected by an error of law. The District Court noted that not only had O'Leary accurately described the procedure required by statute to increase the proposed penalty, she exercised an opportunity open to all Board members by offering her opinion on an appropriate penalty. The District Court went on to hold that the Board's increase of the penalty was not arbitrary or capricious. Munn now appeals the District Court's Order.
¶ 15 When a District Court reviews an agency decision, the applicable standard of review is as follows:
(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise...
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...if a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. Munn v. Montana Bd. of Medical Examiners, 2005 MT 303, ¶ 15, 329 Mont. 401, ¶ 15, 124 P.3d 1123, ¶ 15 (citations omitted). We review a District Court's conclusions of law by d......