Vance v. Fordham
| Decision Date | 22 August 1983 |
| Docket Number | No. 18176,18176 |
| Citation | 671 P.2d 124 |
| Parties | Robert B. VANCE, D.O., Plaintiff and Appellant, v. Paul T. FORDHAM, Director of the Department of Registration; Department of Registration, State of Utah and the Osteopathic Committee, Defendants and Respondents. |
| Court | Utah Supreme Court |
M. Richard Walker, Salt Lake City, for plaintiff and appellant.
David L. Wilkinson, Atty. Gen., Steven G. Schwendiman, Asst. Atty. Gen., Salt Lake City, for defendants and respondents.
Appellant, an osteopathic physician, had his license revoked by respondent, Director of the Department of Registration. The revocation was for "unprofessional conduct" pursuant to a recommendation of the Department's Osteopathic Committee after the notice and hearing specified in U.C.A., 1953, §§ 58-1-25 to -33. The district court sustained the administrative action.
On this appeal from the district court, appellant challenges the sufficiency of the evidence for the administrative finding and the legality of a revocation for "unprofessional conduct" when the Department has not published regulations defining what professional conduct is forbidden under that standard. Appellant also challenges the statutory qualifications of one of the three members of the Osteopathic Committee who recommended the revocation, contending that this deficiency ousted the Committee of its jurisdiction and deprived him of his license without due process of law.
Appellant graduated from the Kirksville (Mo.) College of Osteopathic Medicine in 1958. During the next several years, he completed an internship at an osteopathic hospital in Michigan, obtained other postgraduate experience in several different states, and acquired licenses to practice his profession in Indiana, Michigan, Missouri, and Ohio. Since 1961, he has been licensed and has practiced his profession in Utah. Apart from these uncontested facts, the parties characterize appellant in sharply different terms.
Appellant's brief represents appellant as a distinguished professional who has dedicated hundreds of hours to research and study with many of the leading practitioners and pioneers in the field of medicine, averaging eight to ten medical conventions and seminars each year to advance his knowledge in order to assist suffering patients. He is nationally recognized in the In respondent's brief, appellant is characterized as one who utilized methods and mechanisms totally foreign to the practice of medical doctors or osteopaths and whose diagnostic abilities are founded upon questionable theory rather than scientific knowledge. Respondent relies on the findings of the Department and its Osteopathic Committee that appellant did not maintain the "basic (orthodox) standards of medicine" in his practice. Specifically, he did not do a complete physical examination before giving intravenous solutions or before assuming primary care of patients by advising them to discontinue medications or instructions given them by their previous physicians, and he prescribed chelation therapy (an "unnecessary and unproven medical treatment for atherosclerosis") and laetrile (which "should not be prescribed in lieu of standard accepted medical treatment for a patient suffering from cancer"). Respondent also cites the findings that appellant used the "totally unfounded" method of kinesiology "as the sole test to determine food allergies," that he employed Kirlian photography for research purposes without notifying the patient that its use as a diagnostic tool was of questionable value, and that he was grossly negligent in assuming the primary care of and in treating a gravely ill patient whose condition was beyond the scope of appellant's knowledge in the field of preventive medicine.
field of preventive medicine and has been certified by the American Academy of Medical Preventics as a Diplomate in chelation therapy. 1 He has treated some 8,000 persons over the past decade, only 35 of whom were selected as the subject matter of the petition filed against him, and only 8 of these were the subject of adverse findings by the Department.
It is not the function of this Court to pass judgment on the professional qualifications or practices of appellant, or even to resolve the conflicts between his supporters and his detractors. Our function is limited to assuring the legality of and compliance with the process the law has established to regulate the professions in the public interest. State v. Hoffman, Utah, 558 P.2d 602 (1976); Baker v. Department of Registration, 78 Utah 424, 442-45, 3 P.2d 1082, 1090-91 (1931).
Several of appellant's allegations of error turn on whether the proceedings in the district court were in the nature of an appeal under § 58-12-35.1 or an original action under § 58-1-36. We begin with that determination.
On September 30, 1980, an investigator for the Department of Registration signed a 16-page petition making detailed allegations of thirty-seven instances of unprofessional conduct by appellant in the treatment of various patients. During six days in January and on February 1, 1981, the Department held a hearing on these allegations before an administrative law judge and the three-member Osteopathic Committee. This Committee, appointed by the Director of the Department of Registration with the approval of the Governor, performs statutory functions in examining and licensing and in reviewing the professional conduct (including revoking licenses) of members of the osteopathic profession. §§ 58-1-5 to -36.
Thirty-five witnesses testified at the hearings, including appellant, seven M.D.s, two D.O.s (one of whom was also an M.D.), and twenty-five other witnesses. Most of the other witnesses were patients of appellant. Most of the M.D.s testified on the care of particular patients. On the subject of medical standards generally, one D.O. from Utah testified against appellant and three M.D.s (one of whom was also a D.O.) from California testified for him.
On February 2, 1981, the Osteopathic Committee found unprofessional conduct under seven of the allegations and recommended that appellant's license be revoked. On February 6, 1981, respondent, as Director On October 2, 1981, appellant moved to dismiss the order of revocation and the appeal and to reinstate appellant's license on the basis that one of the three members of the Osteopathic Committee, Dr. Katherine Greenwood, had been licensed in the state of Utah since June 6, 1978, a period of less than three years at the time of her appointment on January 5, 1981, whereas § 58-1-6 clearly requires at least five years. 2 After briefing and argument, at which appellant's counsel stated that this deficiency had just been discovered in mid-September, the district court denied the motion on October 19, 1981. The court's memorandum opinion gave three reasons:
of the Department, approved the Committee's recommended findings and conclusions and revoked appellant's license, effective immediately. On February 10, 1981, appellant's counsel, who had represented him at the hearing, filed an "appeal" to the district court "[p]ursuant to Section 58-12-35.1(5)." Appellant has been permitted to continue his practice during the pendency of his appeals under a succession of stays issued by the district court and by this Court. In the summer of 1981, appellant's original counsel withdrew and was replaced by his present counsel
1. Although not qualified for appointment to the Osteopathic Committee, Dr. Greenwood was a de facto officer, who acted under color of law and authority, so there was no absence of jurisdiction in the committee.
2. The revocation had been recommended by the requisite majority of the committee without Dr. Greenwood's vote.
3. Even if the decision of the Committee were voidable by reason of Dr. Greenwood's lack of qualifications, that decision could only be voided at the instance of an aggrieved party who made a timely protest, and appellant's protest, made for the first time on appeal, was untimely.
We review that decision in Part IV of this opinion.
Both parties then filed lengthy memoranda arguing their respective positions on the basis of the transcript of the hearings before the Committee, which had been filed in the district court. Neither party sought to introduce any other evidence. The memoranda of both parties referred to the proceeding in the district court as "an appeal." Both reviewed the evidence and argued the issue in terms of whether or not the Department's findings were "arbitrary or capricious."
On December 3, 1981, the district court affirmed the Department's order. The court's memorandum opinion refers to the proceeding as an "appeal" under § 58-12-35.1(5) and applies the arbitrary and capricious standard of review specified in that section and in this Court's decisions on judicial review of administrative decisions, citing Petty v. Utah State Board of Regents, Utah, 595 P.2d 1299, 1302 (1979). On the question of the evidentiary support for the findings of the Department, the opinion states that the court had read the entire 1189-page transcript and had examined all of the exhibits and memoranda of counsel. The court concluded that the findings of the Department on the seven instances of unprofessional conduct were "amply and thoroughly supported by testimony and other evidence in the record" and that the other findings (relating to more general matters, such as an osteopathic physician's required standard of care of his patients and the finding that chelation therapy and laetrile were not standard accepted medical treatments) were "based upon testimony in the record, and upon the professional expertise This Court may not substitute its judgment on factual matters for that of the fact-finding body unless that body has clearly acted capriciously or arbitrarily, or unless its conclusions are unsupported by the evidence. Neither circumstance exists here.
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