Story v. Wyoming State Bd. of Medical Examiners

• Decision Date: 17 June 1986
• Docket Number: No. 85-281,85-281
• Citation: 721 P.2d 1013,59 A.L.R.4th 1089
• Parties: J.H. STORY, M.D., Appellant (Contestee), v. WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellee (Complainant).
• Court: Wyoming Supreme Court

Page 1013

721 P.2d 1013

59 A.L.R.4th 1089

J.H. STORY, M.D., Appellant (Contestee), v. WYOMING STATE BOARD OF MEDICAL EXAMINERS, Appellee (Complainant).

No. 85-281.

Supreme Court of Wyoming.

June 17, 1986.

R. Scott Kath of Copenhaver, Kahl & Kath, Powell, for appellant (contestee); Van Graham (argued).

A.G. McClintock, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Richard E. Dixon (argued), Asst. Atty. Gen., for appellee (complainant).

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

CARDINE, Justice.

This appeal is from an order revoking appellant's medical license after a hearing before the Wyoming State Board of Medical Examiners.

We affirm.

The questions presented by appellant for our determination are whether the findings of the Board are supported by substantial evidence; whether the Board complied with requirements of law; and whether the Board's findings and conclusions are arbitrary, capricious, and an abuse of discretion.

The Wyoming State Board of Medical Examiners received written complaints from female patients that appellant had inserted his penis into their vaginas during pelvic examinations. Following an investigation, there was, pursuant to § 33-26-130, W.S.1977, Cum.Supp.1985, an interview with appellant. The parties were unable to arrive at a satisfactory resolution of the complaints. A contested-case hearing was set at which appellant was ordered to show cause why his license to practice medicine should not be suspended, revoked, or restricted, or other disciplinary action taken. At the conclusion of the hearing, the medical board found that appellant was guilty of unethical and unprofessional conduct toward MA, MB, and AD, that such conduct was likely to deceive, defraud or harm the public, and that as of June 30, 1984, his license to practice medicine in the state of Wyoming should be revoked.

I. SUFFICIENCY OF THE EVIDENCE

The Board may revoke a license for:

"(iii) The performance of any dishonest, unethical or unprofessional conduct likely to deceive, defraud or harm the public." § 33-26-129(b)(iii), W.S.1977.

The authority for the Board's revocation of appellant's license is found in § 33-26-136, W.S.1977, which provides:

"(a) After the hearing, the board shall enter its order pursuant to the Wyoming Administrative Procedure Act [§§ 16-3-101 to 16-3-115]. The board may:

* * *

* * *

"(iv) Revoke the license."

For the board to revoke, suspend or restrict a license or take other disciplinary action against a licensed physician, the evidence must be clear and convincing that he has violated the provisions of § 33-26-129(b), W.S.1977. Fallon v. Wyoming State Board of Medical Examiners, Wyo., 441 P.2d 322, 326 (1968). Clear and convincing evidence is " '[t]hat kind of proof which would persuade a trier of fact that the truth of the contention is highly probable.' MacGuire v. Harriscope Broadcasting Co., Wyo., 612 P.2d 830, 839 (1980)." Matter of Parental Rights of GP, Wyo., 679 P.2d 976, 982 (1984); Thomasi v. Koch, Wyo., 660 P.2d 806, 812 (1983).

At the hearing MA testified that during September 1982, she saw appellant for a post-natal checkup. The pelvic examination was conducted with her lying on her back on the examination table, her feet in the stirrups, and a sheet over her knees which obstructed her view of the examiner. Appellant began with a finger examination and then informed MA that he would have to dilate her. She could not see what was being done, but sensed that something was wrong, associating the experience with sexual intercourse. During a second pelvic examination in November 1982, MA said, "it happened again" and she concluded that appellant had inserted his penis in her vagina to "dilate" her. She informed her sister, her mother, and her Bishop of the incidents and did not return to appellant for her medical care. In June 1983, MA by letter, informed the president of the Wyoming State Medical Board of the incidents.

MB testified that she twice cancelled appointments with appellant because of suspicions that he had sexual intercourse with her during prior pelvic examinations. MB was sick with a sore throat and appellant's receptionist convinced her to keep a third appointment on April 21, 1983. Appellant gave MB a sheet and instructed her to prepare for a pelvic examination. With MB lying on the examining table, undressed, her feet in the stirrups, and covered with a sheet, appellant began the examination with a speculum and his fingers, and then advised MB that he would have to "dilate" her. He stood as he dilated her, the pain was intense and she felt his pants against AD had prior experiences during pelvic examinations about which she was suspicious. Then on February 12, 1983, a Saturday afternoon, she went to appellant for treatment of a fever and headache. Appellant suggested a pelvic examination because of the possibility of a low grade kidney infection. To dilate AD appellant pushed something into her vagina, pulled it out and pushed it in further until his hips came up against hers and then she knew his penis was penetrating her vagina. AD said she didn't know what to do--she was in a panic. Appellant gave her a prescription and she left. She informed her husband of what had happened and complained, in writing, to the Wyoming State Board of Medical Examiners.

                her body.  Appellant said, "let me pull it out a little bit and then I'll try again," and then pushed real hard and said, "well, I just can't get it in all the way."   Appellant came around to the side of the table.  MB felt an object touch her hand.  She looked--it was appellant's penis.  Before mailing a letter of complaint to the Medical Board, MB and her husband met with appellant at his request.  Appellant expressed concern about rumors of his misconduct.  He then advised MB's husband that he would not have to pay his medical bill in the amount of $1613.00
                

Appellant argues that we should not find the evidence substantial because MA, MB, and AD are not credible witnesses. His argument is essentially the same as to each of the three witnesses. Thus, appellant states,

"why doesn't this adult, presumably normal, lady pull the sheet down, if there is one, and see exactly what he is doing if she suspects some impropriety. How normal is it to simply lay there and allow yourself to be, in effect, raped * * *."

A brief examination of the reported testimony demonstrates why they did nothing and why the Board found the evidence clear and convincing and the witnesses credible. MA, after stating that appellant put his penis in her vagina, said:

"I'm mad because I wasn't strong enough to sit up and find out for sure. I'm mad that that strength isn't in me. And so as a result of this, I have lost some self-respect, because I wasn't strong enough. And I'm scared to death that if another doctor were to do it, I don't know what I would do. I just shake.

* * *

* * *

"Q. I've asked you some tough questions and I'm going to ask you one last tough one, Mrs. [MA]. I appreciate your bearing with me.

"If you had it to do all over again, would you still write the letter to the Board of Medical Examiners?

"A. I don't have any choice. I can't live with myself if I don't. I've lost enough self-respect, I couldn't lose any more. It just wasn't a matter of choice. After I heard that people had been offended for five years, I didn't have any choice. It was like the choice was then lifted from me and the burden was on my back. I just couldn't sit back."

And AD testified:

"Q. Okay. Then what happened next?

"A. Then he got the table all ready, you know, and had me scoot down on the end of the table until my rear touched his hand. And then he tried with the speculum and he said * * *, 'This is awfully uncomfortable, isn't it?' And I said, 'Yes, but it always is.'

"And so he said he would dilate me and that would make it easier for me. And I really didn't think anything of it, but as soon as he put whatever it was in, I thought, this can't be true. This can't be true. He wouldn't do that to me. But I knew it was him * * *."

When asked why she didn't say something to appellant or object, AD said:

"A. Well, I was alone. I did. I thought about it. I thought there is nobody else in here. He could do anything to me and nobody would ever know. And caught in a situation like that, almost any normal person would panic and maybe do something that would harm With respect to MB's testimony that she observed appellant's penis, appellant, in his brief, argues:

someone else. And all this went through my mind and I thought I can't say anything. So I didn't say anything at all and left."

"Now after this ejaculation occurs the witness contends that the doctor simply moved around to the side of the table * * *. Next, the witness stated 'this object, slips between her fingers' and was 'laying on the table' * * * at which time she also looks down and 'sees' the penis.

"[S]ince the doctor had his lab coat on, * * * it would appear that the perpetrator of this offense would be an individual of remarkable endowment since a portion of it remained in his pants, behind his lab coat, crossed her hand, laid on the table and at some point was buried in her leg."

Appellant concludes with:

"This testimony is greater in degree than simply incredible. It is bizarre, ludicrous and demented. The Board, however, finds it not only 'credible', but 'clear and convincing'."

Appellant's view of the evidence is argument pure and simple. He must have made the same argument to the Medical Board that heard the case and they rejected it. We look again to the verbatim testimony of MB who, after being advised by appellant that he would dilate her, states:

"So he pulled it out and he turned around and faced the sink again. He walked up over to the side and I had my hand down on the side of the table. And he pushed--he leaned up forward. And when he leaned up against the table close to put his hand on my stomach to push, this object...