Painter v. Abels

• Citation: 998 P.2d 931
• Decision Date: 03 March 2000
• Docket Number: No. 99-161.,99-161.
• Parties: Rebecca A. PAINTER, M.D., Appellant (Petitioner), v. Duane ABELS, D.O. and Randal C. Moseley, M.D. and Wyoming Board of Medicine, Appellees (Respondents).
• Court: United States State Supreme Court of Wyoming

998 P.2d 931

Rebecca A. PAINTER, M.D., Appellant (Petitioner), v. Duane ABELS, D.O. and Randal C. Moseley, M.D. and Wyoming Board of Medicine, Appellees (Respondents).

No. 99-161.

Supreme Court of Wyoming.

March 3, 2000.

Representing Appellant: Tom C. Toner of Yonkee & Toner, Sheridan, Wyoming.

Representing Appellees: Don W. Riske, Special Assistant Attorney General, Representing Appellees.

Before LEHMAN, C.J.; THOMAS, MACY, and GOLDEN, JJ.; and JOHN C. BRACKLEY, D.J.

JOHN C. BRACKLEY, District Judge.

Appellant Rebecca A. Painter, M.D. (Dr. Painter) is the holder of a Wyoming Physician's License. Appellee Wyoming Board of Medicine (Board) is the licensing and regulatory board charged with admitting physicians to the practice of medicine and overseeing their conduct.

Dr. Painter petitioned the district court for review of the Board's March 1, 1999, administrative order which conditioned her practice of medicine and required her to pay certain costs of administrative proceedings. The district court stayed enforcement of the order and certified review to the Wyoming Supreme Court.

We reverse the Board's order.

ISSUES

The parties suggested numerous issues. We consolidate them into two:

A. Did the Board's procedure generally deviate from statutory, evidentiary, and constitutional standards?

B. Is the Board's assessment of costs herein arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?

FACTS

Two Board members were appointed to investigate a patient complaint which had been lodged against Dr. Painter in May of 1997. The investigating Board members filed a formal complaint on July 3, 1997, alleging Dr. Painter's diagnosis and treatment of the patient fell below the standard of care and constituted unprofessional conduct. The complaint sought revocation, suspension, or restriction of Dr. Painter's license to practice medicine in Wyoming. Dr. Painter objected in a written response.

Pursuant to administrative rules, the Board scheduled an "informal interview" of Dr. Painter for December 3, 1997. Dr. Painter lived in Gillette, but the interview was scheduled to be conducted in Rock Springs. Dr. Painter's requests to reschedule the interview to give her attorney an opportunity to attend and to move the site closer to Gillette were denied. Dr. Painter personally attended the December 3, 1997, interview in Rock Springs. Her attorney observed by telephone.

On December 4, 1997, Dr. Painter contacted the Governor's office and complained about what she considered to be hostile and unprofessional treatment by the Board. On January 30, 1998, the Governor's office sent a letter to Dr. Painter, suggesting she ask the Board for another interview by different Board members in the presence of her attorney. On January 31, 1998, before another interview was requested, the Board issued a "Report and Recommendation of Interviewers." This report included a finding that there was reasonable cause to believe Dr. Painter was "impaired" as defined by Wyo. Stat. Ann. § 33-26-102(a)(vii)(A) (LEXIS 1999):

(vii) "Impaired" means a person who cannot practice medicine with reasonable skill and safety to patients by reason of one (1) or more of the following:

(A) Medical incompetence[.]

Additionally, the report recommended that Dr. Painter undergo a mental and medical competency examination pursuant to authority contained in Wyo. Stat. Ann. § 33-26-403(a) (LEXIS 1999).

On February 3, 1998, Dr. Painter received notice that she was to appear for a competency examination on February 13, 1998, in Cheyenne. It did not include notice of her right under Wyo. Stat. Ann. § 33-26-403(d) (LEXIS 1999) and Board rules to designate another physician to be present and make an independent report to the Board. Board rules specifically require that physicians being examined be notified of the foregoing right. Dr. Painter objected to the short notice. She said she was unable to find an independent physician who could attend on February 13, 1998, but appeared as ordered. The examination was conducted by three Wyoming physicians appointed solely by the Board. This examination was attended by her attorney and was recorded by a court reporter.

Dr. Painter received a letter dated March 30, 1998, from the Board which stated that the examination committee had submitted its report on March 6, 1998. The letter suggested a "consent decree" could resolve the case. Dr. Painter had not received a copy of the examination report so she requested a copy. The Board refused to deliver a copy of the examination committee's report—in fact, Dr. Painter had not received a copy of the report at the time of oral arguments before this Court in October of 1999. The Board claims the report is a confidential "board record" pursuant to Wyo. Stat. Ann. § 33-26-408(c) (LEXIS 1999):

(c) All board records except final orders are not subject to public disclosure or discovery and are not admissible in any nonboard proceeding except when necessary for further board action or upon judicial review of a board order.

In response to publicity the case had generated, another former patient of Dr. Painter's wrote a complaining letter to a Gillette newspaper in March of 1998. On May 11, 1998, the Board filed a motion for leave to amend the complaint against Dr. Painter to add additional counts of negligence or malpractice regarding this second patient. On May 22nd and 23rd of 1998, the Board took Dr. Painter's deposition and filed a second motion for leave to file a second amended complaint. On July 1, 1998, the hearing officer entered an order allowing the Board to file such amendments. On August 12, 1998, a second amended complaint was filed by the Board which alleged five counts:

(1) Negligence of Dr. Painter in her diagnosis and treatment of hypoadrenalism of patient HS in violation of Wyo. Stat. Ann. § 33-26-402(a)(xxii) (LEXIS 1999) which proscribes negligence or malpractice;

(2) Negligence of Dr. Painter in her diagnosis and treatment of a thyroid condition of patient TP in violation of § 33-26-402(a)(xxii) which proscribes negligence or malpractice;

(3) Unprofessional conduct of Dr. Painter contrary to recognized standards of ethics of the medical profession and, therefore, a violation of Wyo. Stat. Ann. § 33-26-402(a)(xxvii) (LEXIS 1999) based upon the manner in which Dr. Painter conducted a "case study" of patient HS with the Electro Dermal Screening (EDS) mechanism and Dr. Painter's conduct in that regard did not meet the requirements of the American Medical Association's Code of Medical Ethics and Current Opinions with Annotations, op. 2.07 (1998-99 Ed.);

(4) Willful and consistent utilization of medical service which is inappropriate or unnecessary by Dr. Painter in violation of Wyo. Stat. Ann. § 33-26-402(a)(xviii) (LEXIS 1999) based upon her conducting the EDS procedure on approximately fifty patients, her prescribing for such patients, including HS, a "serum" which she prepared using the EDS mechanism and a mixture of alcohol and water when such testing and treatment have no proven medical efficacy and are not scientifically supported as being appropriate for diagnosis or treatment of human disease, injury, deformity, or ailment; and

(5) Willful and consistent utilization of medical service which is inappropriate or unnecessary by Dr. Painter in violation of § 33-26-402(a)(xviii) based upon her recommendations, prescription, and/or sale to a number of her patients, including TP, of a thirty-day Herbal Detoxification Program from the Pure Body Institute when such program has no proven medical efficacy and is not scientifically supported as being appropriate for diagnosis or treatment of human disease, injury, deformity, or ailment.

On September 10th, 11th, and 12th of 1998, the Board conducted a contested case hearing in Casper. The proceedings occurred before the attorney hearing officer hired by the Board and a three-member hearing panel composed of Board members. The Board gave counsel for the parties an opportunity to conduct voir dire of hearing panel members. Dr. Painter's motion to disqualify members of the hearing panel for prejudice was denied.

The hearing officer held an in camera review of the report generated from the February 13, 1998, competency examination and granted the Board's request to keep it from Dr. Painter. After presentation of testimony, the hearing officer granted Dr. Painter's motion to dismiss the fourth and fifth counts.

In February of 1999, the hearing panel issued findings of fact, conclusions of law, and a proposed order. Even though the panel concluded that Dr. Painter "is a conscientious and concerned physician, and the treatment prescribed to the two patients herein reviewed did not result in harm to them," the panel recommended sanctions regarding the first, second, and third counts. The Board's final order of March 1, 1999, found by a preponderance of the evidence that Dr. Painter had violated lawful expectations contained in the negligence allegations of the first and second counts and the ethical allegations of the third count.

The Board ordered Dr. Painter to: (1) complete a four-week training course "in the senior elective Endocrinology rotation at the University of Utah School of Medicine" by July 1, 1999; and (2) cooperate with periodic, random reviews of her office charts by a Board certified internist for one year after completing the rotation. Additionally, Dr. Painter was ordered to pay one-half the costs of the contested case hearing, "specifically, the costs of the Court Reporter and transcript, the Hearing Officer's fees and expenses, the travel, lodging and meals of the Hearing Panel members and the Petitioners' lay and expert witness fees and expenses." On March 11, 1999, Dr. Painter filed a petition for review of the Board's decision in the district court. The district court entered an order staying enforcement of the Board's order pending completion of judicial review and...