State Bd. of Medical Examiners v. McCroskey

• Decision Date: 12 September 1994
• Docket Number: No. 93SC471,93SC471
• Citation: 880 P.2d 1188
• Parties: The STATE BOARD OF MEDICAL EXAMINERS, Petitioner, v. Brian L. McCROSKEY, M.D., Respondent.
• Court: Colorado Supreme Court

Page 1188

880 P.2d 1188

The STATE BOARD OF MEDICAL EXAMINERS, Petitioner, v. Brian L. McCROSKEY, M.D., Respondent.

No. 93SC471.

Supreme Court of Colorado,

En Banc.

Sept. 12, 1994.

Rehearing Denied Oct. 11, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Merrill Shields, Deputy Atty. Gen., Linda L. Siderius, First Asst. Atty. Gen., Robert N. Spencer, Asst. Atty. Gen., Regulatory Law Section, Denver, for petitioner.

Strate and Tondre, P.C., Brice A. Tondre, Wheat Ridge, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

In Colorado State Board of Medical Examiners v. McCroskey, No. 92CA1433 (Colo.App. June 17, 1993) (not selected for publication), the court of appeals reversed the final order of the Colorado Board of Medical Examiners (the Board) directing that a letter of admonition be issued to Dr. Brian L. McCroskey for unprofessional conduct. We granted certiorari in order to determine whether the Board was bound by the finding of the administrative law judge (the ALJ) on the existence and nature of a "generally accepted standard of medical practice." We now reverse and remand this case to the court of appeals with directions.

I

McCroskey is a physician licensed to practice medicine in Colorado and thus is subject to the Medical Practice Act, sections 12-36-101 through -137, 5B C.R.S. (1991 & 1993 Supp.). In 1990, an inquiry panel of the Board ¹ issued a letter of admonition to McCroskey based upon a series of well-publicized incidents arising from the care of a stab-wound victim at Denver General Hospital (DGH) in 1988. Although the patient's initial condition was thought to be stable, he bled to death several hours after his admission. As the attending surgeon on the date of the events in question, McCroskey had the final word on the patient's treatment and was responsible for the accurate completion of the patient's medical record. McCroskey declined to accept the letter of admonition and pursuant to section 12-36-118(4)(c)(III), ² a formal disciplinary hearing was held.

Initially, the inquiry panel charged McCroskey with four counts of unprofessional conduct under section 12-36-117(1)(p), alleging that McCroskey committed two or more acts which failed to meet generally accepted standards of medical practice. ³ One count was dismissed either prior to or at the hearing before the ALJ and alleged that McCroskey requested that a pathologist alter the patient's official autopsy report. A second count, which the ALJ found was not supported sufficiently by the evidence, charged that McCroskey unreasonably delayed getting to the hospital after being called by the chief resident.

The remaining two counts involved alterations or additions to the patient's medical record. First, the ALJ found that medical record-keeping is part of "medical practice," and thus falls within the scope of section 12-36-117(1)(p). The ALJ further found that McCroskey committed an act which failed to meet generally accepted standards of medical practice when he erased and wrote over a pre-operative note made by another physician concerning the patient's estimated blood loss. ⁴

After listening to conflicting expert testimony, the ALJ concluded that McCroskey did not violate generally accepted standards of medical practice by adding a "staff note" to the patient's medical record days or weeks after the patient's death and backdating the note to the date of death. ⁵ "While the better practice is to date such an entry as of the date it is made, in practice many physicians date their entries as of the date of the occurrence." According to the ALJ, this fact brought McCroskey's conduct within the standard of care under the "respectable minority" rule articulated in Hamilton v. Hardy, 37 Colo.App. 375, 379-80, 549 P.2d 1099, 1104 (1976) (only when it is shown that a respectable minority of physicians approved of a course of action should a medical malpractice case be taken from the jury). Since section 12-36-117(1)(p) requires proof of two or more acts of substandard care to support disciplinary action, the ALJ concluded that McCroskey was not subject to discipline.

On review of the ALJ's decision, the Board accepted the ALJ's evidentiary finding that many physicians date a medical record entry to reflect the date of the medical event, rather than the date on which the entry was made. The Board disagreed, however, with the ALJ's conclusion that this fact brought McCroskey's conduct within generally accepted standards of medical practice. Instead, the Board determined that "the weight of the evidence supports the conclusion that backdating a medical record entry falls below generally accepted standards of practice." ⁶ Having thus found two acts which fell below generally accepted standards of medical practice, the Board concluded that McCroskey committed unprofessional conduct under section 12-36-117(1)(p), and issued a letter of admonition.

On appeal, the court of appeals concluded that the Board erroneously rejected the ALJ's finding that McCroskey's backdating of the staff note did not violate generally accepted standards of medical practice. McCroskey, slip op. at 4. Specifically, the court of appeals held that "[t]he existence of a 'generally accepted' standard of care and its nature is an evidentiary, not an ultimate, fact that must be supported by substantial evidence." Id. Since the ALJ's determination of the standard of practice was not contrary to the weight of the evidence, the court concluded that the Board was bound by this finding under section 24-4-105(15)(b), 10A C.R.S. (1988), of the State Administrative Procedure Act. Id. at 5. Consequently, the court reversed the Board's order and directed the Board to withdraw its letter of admonition and to delete any reference to the letter in McCroskey's files.

II

As a state agency with statewide territorial jurisdiction, the Board's actions are governed by the State Administrative Procedure Act, sections 24-4-101 to -108, 10A C.R.S. (1988 & 1993 Supp.). Section 24-4-105(15)(b) of the Act sets forth the appropriate scope of review to be employed by the Board when reviewing an ALJ's decision:

(b) The findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the administrative law judge or the hearing officer shall not be set aside by the agency on review of the initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence.

§ 24-4-105(15)(b), 10A C.R.S. (1988).

As this section makes clear, the Board's ability to review and to set aside an ALJ's finding turns on whether the finding is one of "evidentiary" or "ultimate" fact. A finding of evidentiary fact cannot be set aside by the Board on review of an ALJ's decision unless the finding is contrary to the weight of the evidence in the record. § 24-4-105(15)(b); Colorado State Bd. of Nursing v. Lang, 842 P.2d 1383, 1387 (Colo.App.1992). On the other hand, the Board can substitute its judgment for that of the ALJ with respect to an ultimate conclusion of fact, Ricci v. Davis, 627 P.2d 1111, 1120 n. 7 (Colo.1981); Davis v. State Bd. of Psychologist Examiners, 791 P.2d 1198, 1202 (Colo.App.1989), so long as the Board's finding has a reasonable basis in law and is supported by substantial evidence in the record. Lee v. State Bd. of Dental Examiners, 654 P.2d 839, 844 (Colo.1982); People ex rel. Woodard v. Brown, 770 P.2d 1373, 1379 (Colo.App.1989).

The distinction between evidentiary facts and ultimate conclusions of fact is not always clear. Federico v. Brannan Sand & Gravel Co., 788 P.2d 1268, 1272 (Colo.1990). In general, however, evidentiary facts are the detailed factual or historical findings upon which a legal determination rests. Lee, 654 P.2d at 843; Lang, 842 P.2d at 1387. For example, in this case, the evidentiary facts would include a determination of whether and when McCroskey made the written entries in question.

In contrast, findings of ultimate fact involve a conclusion of law, or at least a mixed question of law and fact, and settle the rights and liabilities of the parties. Blaine v. Moffat County Sch. Dist., 748 P.2d 1280, 1287 (Colo.1988); Lee, 654 P.2d at 844; Puls v. People ex rel. Woodard, 722 P.2d 424, 426 (Colo.App.1986). Unlike evidentiary facts, ultimate conclusions of fact usually are phrased in the language of the controlling statute or legal standard. Federico, 788 P.2d at 1272; Blaine, 748 P.2d at 1287; Ricci, 627 P.2d at 1118; see also Lee, 654 P.2d at 844 (board's determinations were findings of ultimate fact because they were stated in terms of the controlling legal standards).

In its final order, the Board treated the ALJ's findings concerning whether physicians backdate medical records as a finding of evidentiary fact. However, the Board regarded the ALJ's conclusion concerning whether such conduct amounted to substandard care as an ultimate fact, not binding on the Board:

The Board does not dispute the ALJ's finding of evidentiary fact that many physicians may date a medical record entry to reflect the date of the medical event in question, rather than the date upon which the entry in the record was made. However, as noted above, the Board disagrees with the ALJ's conclusion that backdating a medical record entry does not fall below generally accepted standards. Rather, the weight of the evidence clearly supports the conclusion of law that backdating a medical record fails to meet generally accepted standards of practice.

Several reasons cause us to agree with the Board and to hold that the ALJ's finding on the nature and existence of the "generally accepted standards of medical practice" is a finding of ultimate fact.

First, a determination of the nature and existence of the "generally accepted standards of medical practice" is best viewed as a mixed question of law and fact; it is not simply a factual finding of raw...