Tuma v. Board of Nursing
| Decision Date | 17 April 1979 |
| Docket Number | No. 12587,12587 |
| Citation | 100 Idaho 74,593 P.2d 711 |
| Parties | In the Matter of Jolene Lucille Byerly TUMA, R.N., Defendant-Appellant, v. BOARD OF NURSING of the State of Idaho, Plaintiff-Respondent. |
| Court | Idaho Supreme Court |
Donald J. Chisholm, of Goodman, Duff & Chisholm, Rupert, for defendant-appellant.
Wayne Kidwell, Atty. Gen., Wayne V. Meuleman, of Park & Meuleman, Boise, for plaintiff-appellee.
Appellant Tuma challenges an order entered by respondent Board of Nursing (Board) which suspended her registered nurse's license for 6 months, the Board acting on the decision of a Board-appointed hearing officer who found Tuma guilty of "unprofessional conduct."
During March of 1976, Tuma was employed as a clinical instructor of nursing by the College of Southern Idaho. Her duties included performing nursing services while supervising student nurses at the Twin Falls Clinic and Hospital (Hospital).
On March 3, 1976, Grace Wahlstrom, a hospital patient, for brevity hereinafter referred to as patient, was informed by her attending physician that she was dying of myelogenous leukemia, that it was malignant, and that her only hope of survival was chemotherapy. She was also told that the drugs involved are life threatening and have undesirable side effects which reduce the body's defense mechanisms, making the patient susceptible to infection and necessitating that the patient be placed in reverse isolation.
Tuma, aware of the patient's condition and interested in the special needs of dying patients, asked to be assigned to the patient and to administer the prescribed chemotherapy. Tuma discussed the patient's condition and background with her. The patient had fought leukemia for 12 years and attributed her success to her belief in God and to her faithful practice of her religion. They discussed work done by the L.D.S. Hospital in Salt Lake City using chaparral and laetrile, as well as the side effects of the drugs used in the chemotherapy. The patient pleaded with Tuma to return that evening to discuss an alternative treatment using natural products with the patient's family. Tuma consented to the meeting. Tuma and a student nurse, Candice Freeman, then commenced the patient's chemotherapy. Freeman testified that Tuma told the patient that discussing these matters "wasn't exactly ethical." The patient acknowledged this but still requested Tuma to come back that night. Freeman also testified that Tuma told her to forget what she had heard because it wasn't "exactly legal."
About two hours later, the patient was called by her daughter-in-law Penny. Penny testified the patient wanted her family to meet Tuma and discuss the alternative treatment. The patient asked Penny not to inform the doctor because this could cause trouble for Tuma. However, Penny called the doctor and informed him of the conversation. He requested that Penny get the name of the nurse, but he did nothing to interfere with the scheduled meeting; nor did he take up the matter with the patient. The doctor ordered the chemotherapy stopped at 8:00 p. m. because of the patient's change of attitude. At 8:00 p. m. that evening, Tuma met with the patient and her family. They discussed the prescribed treatment, its side effects, and alternatives provided by natural foods and herbs, as well as the fact the patient would have difficulty getting treatment, particularly blood transfusions, if she left the hospital. Laetrile was discussed as an alternative form of treatment that does not produce the adverse side effects of drugs used in chemotherapy. The patient's son testified that Tuma said her discussion with them was "somewhat unethical." After a brief discussion, the parties decided that the patient should remain in the hospital and continue the chemotherapy. The treatment was resumed at 9:15 p. m. that evening.
The patient died two weeks later on March 18, 1976. During the chemotherapy, the patient did experience adverse side effects and was comatose much of the time. There was no contention nor evidence that Tuma's acts in any way contributed to the death of the patient.
Sometime in March, the Board received a telephoned complaint by Hospital personnel that Tuma had interfered with the physician-patient relationship. The Board's Director wrote to people familiar with the facts and asked them to submit their complaints in writing. This was done by the Hospital personnel, but no letter was received from the patient's family. A petition for the suspension or revocation of Tuma's license was then prepared by the Director and submitted to the Board, which set the petition for hearing.
The petition alleged that Tuma, for some time prior to March 5, 1976, had interfered with physician-patient relationships at the Twin Falls Clinic Hospital, Twin Falls, Idaho, in that: (1) Tuma stated to two patients, Mrs. Grace Wahlstrom and Mickey Klimes, 1 that the physician's treatments would kill them; (2) that they should discharge themselves from the hospital, and the care of a naturopath would be arranged for them by said licensee; and (3) that treatment by use of laetrile, natural hormones and herbs would cure said patients. It further alleged that such aforesaid conduct constituted unprofessional and dishonorable conduct, warranting revocation of her license.
A hearing was held and the hearing officer found as facts that: (1) Tuma did not tell the patient that chemotherapy would kill her; (2) Tuma did not say that the patient should discharge herself from the hospital; (3) Tuma did discuss natural products as an alternative treatment, but did not say that the alternative treatment would cure the patient; (4) Tuma said that care of a "reflexologist" would be arranged if the patient decided to accept the alternative form of treatment and circumstantial evidence indicates that Tuma would make the arrangements; (5) the doctor stopped the treatment for a brief time after hearing of the conversation; and (6) Tuma's actions interfered with the physician-patient relationship. The hearing officer concluded that Tuma "had violated Idaho Code Section 54-1422(a)(7), by interfering with the physician-patient relationship and thereby constituting unprofessional conduct." The Board approved the findings of the hearing officer, and suspended Tuma's license for 6 months. This decision was appealed to the district court where Tuma asked for a trial De novo, which motion was denied. On a summary review of the record, the district court entered judgment, without opinion, affirming the decision of the hearing officer and the order of the Board suspending Tuma's license. Tuma then filed a notice of appeal to this Court.
The primary issue on this appeal, and the resolution of which we find to be dispositive, is whether the due process rights of Tuma are satisfied by a statute which authorizes the suspension of her professional license to practice nursing on the grounds of "unprofessional conduct" in the absence of statutes or regulations specifically defining "unprofessional conduct," as applied to the conduct which was here held to be unprofessional.
The right to practice one's profession is a valuable property right. A state cannot exclude a person from the practice of his profession without having provided the safeguards of due process. Schware v. Bd. of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). In Ferguson v. Bd. of Trustees of Bonner County Sch. Dist. No. 82, 98 Idaho 359, 364, 564 P.2d 971, 976 (1977), this Court recognized that a "teaching position was a property interest and (a teacher) could not be deprived of this interest without notice and an opportunity to be heard."
In that case the primary issue was procedural due process, I. e., the adequacy of the notice of charges and the adequacy of the hearing. However, we also noted in Ferguson "that school boards are given broad authority to define what constitutes grounds for discharge By promulgation of rules and regulations governing professional conduct of school teachers . . . ." Id. at 362, 564 P.2d at 974 (emphasis supplied).
The Board of Nursing (differently styled) was created by chapter 76, 1951 Idaho Sess. Laws, at 129. That Act, in addition to making provision for the examination and licensing of nurses, provided for revocation or suspension of a license upon proof that a licensee:
(1) Is guilty of fraud or deceit in procuring or attempting to procure a license to practice nursing.
(2) Is guilty of a crime or gross immorality.
(3) Is unfit or incompetent by reason of negligence, habits or other causes.
(4) Is habitually intemperate or is addicted to the use of habit-forming drugs.
(5) Is mentally incompetent.
(6) Is guilty of unprofessional conduct.
(7) Has wilfully or repeatedly violated any of the provisions of this Act or rules and regulations promulgated by the Board.
The Board was specifically "authorized and empowered to adopt and from time to time revise such rules and regulations not inconsistent with the law as may be necessary to enable it to carry into effect the provisions of this act."
By amendments passed in 1963, 1965, 1971, and 1974, provisions for revocation or suspension of a nursing license as effective in 1976 were found in I.C. § 54-1422 (), with grounds declared as follows:
(1) Fraud or deception in procuring or attempting to procure a license to practice nursing.
(2) Practicing nursing under a false or assumed name.
(3) Conviction of a crime involving moral turpitude.
(4) Gross incompetency.
(5) Habitual intemperance in the use of ardent spirits, narcotics or stimulants.
(6) Mental incompetence.
(7) Immoral, unprofessional or dishonorable conduct.
Unprofessional conduct defined: Without intent to limit the general term "unprofessional conduct," as used in this chapter, or without intent to limit the board in exercising its powers as provided in this nurse practice act, the following are...
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