|||SUPREME COURT OF IDAHO
836 P.2d 523; 122 Idaho 577
|||Filed: July 8, 1992.
|||PHILIP M. KRUEGER, M.D., LICENSE NO. M-3549, PETITIONER-RESPONDENT AND
BOARD OF PROFESSIONAL DISCIPLINE OF THE IDAHO STATE BOARD OF MEDICINE, RESPONDENT-APPELLANT AND CROSS RESPONDENT.
|||Appeal from the District Court of the Fourth Judicial District of the
State of Idaho, Ada County. Honorable G.D. Carey, District Judge. 1992 Opinion
No. 96. An appeal from an order of the district court remanding for further
findings. The order of the district court is reversed as to patients A,
B, C, D and E, and is affirmed as to patients F and H.
|||Uranga, Uranga & Bieter, Boise, Idaho, attorney for respondent-appellant
and cross respondent. Jean R. Uranga argued.
|||Merrill & Merrill, Chartered, Pocatello, Idaho, attorney for petitioner-respondent
and cross appellant. David C. Nye argued.
|||Reinhardt, Bistline, Johnson, Schilling, Trout
|||REINHARDT, J. pro tem.:
|||This is an appeal from a Decision on a Petition for Judicial Review of
the decision of the Board of Professional Discipline of the Idaho State
Board of Medicine (hereafter "Board") concerning the license of
Philip M. Krueger, M.D., to practice medicine. The Board appeals from the
district court's decision remanding the case to the Board for further findings
and Conclusions as to patients A, B, C, D and E, and reversing the Board's
decision as to patient H. Dr. Krueger cross-appeals, contending that the
Board used unconstitutionally vague grounds for revoking his license, violated
his constitutional right to due process, and erred in not considering a
jury verdict exonerating him of malpractice in the physician-patient relationship
with patient F.
|||On November 8, 1988, the Board initiated disciplinary proceedings against
Dr. Krueger for violations of I.C. § 54-1814(7), which allows discipline
of a physician based upon:
|||The provision of health care which fails to meet the standard of health
care provided by other qualified physicians in the same community or similar
communities, taking into account his training, experience and the degree
of expertise to which he holds himself out to the public.
|||At issue was Dr. Krueger's conduct as it related to eight patients (patients
A-H), with alleged incidents of breach of the standard of care including
|||Patient A: Failure to adequately monitor an infant's condition during
the birthing process, and a lack of preparation in transferring the mother
and infant to a hospital once evidence of meconium aspiration was available.
|||Patients B, C, D and E: Performing elective surgeries while incapacitated
by a wrist injury which necessitated the surgeries be performed with one
|||Patient F: Use of forceps during delivery without knowing the exact position
of the infant's head.
|||Patient G: No violation of the standard of care was found.
|||Patient H.: Delay in performing a C-section. The Board also found that
Dr. Krueger used contraindicated medications. Whether or not Dr. Krueger
had adequate notice that the Board was challenging his use of medication
is one of the issues presented on appeal.
|||Following a five-day hearing in which extensive expert testimony was admitted
on the subject of whether a violation of the standard of care had taken
place, a designated hearing officer made a decision and report to the Board
on November 30, 1989, with proposed findings of fact, Conclusions of law
|||On January 30, 1990, after conducting an independent review of the record
and reviewing the recommendations of the hearing officer, the Board issued
its findings of fact, Conclusions of law and final order. The Board found
that Dr. Krueger had violated the community standard of care in his treatment
of patients A, B, C, D, E, F and H. The Board's order revoked Dr. Krueger's
license, but stayed revocation so long as Dr. Krueger complied with certain
terms and conditions outlined by the Board. Dr. Krueger appealed that order
to the district court.
|||On appeal, the district court remanded the case to the Board for further
findings and Conclusions on whether "a consensus of expert opinion"
supported the Board's findings that Dr. Krueger had violated the community
standard of care as to patients B, C, D and E. Furthermore, the court, upon
finding that there was a variation between the allegations contained in
the complaint and the evidence presented at the hearing, directed the Board
to strike its Conclusion that Dr. Krueger's management of the case of patient
H did not meet the standard of care provided by other qualified physicians
in the Boise community, and directed the Board to reconsider its decision
to discipline Dr. Krueger. The district court also found that the jury verdict
absolving Dr. Krueger of liability as to patient F had no evidentiary or
preclusive effect, and that the Board was correct in refusing to consider
that verdict. Both the Board and Dr. Krueger petitioned for a rehearing,
which petitions were denied. The district court did, however, modify its
original decision to require the Board to also reconsider its finding as
to patient A to determine whether there was a consensus of expert opinion
that Dr. Krueger failed to meeting the community standard of care.
|||UNCONSTITUTIONAL VAGUENESS ARGUMENT
|||Krueger argues that I.C. § 54-1814(7) is unconstitutionally vague on its
face because it does not define what conduct constitutes a breach of the
local community standard of care. As applied to professional disciplinary
proceedings, the void for vagueness concept has been addressed by this Court,
which found a statute to be unconstitutionally vague
|||Wyckoff v. Board of County Commrs. of Ada County, 101 Idaho 12, 15, 607
P.2d 1066, 1069 (1980) (cited in H & V Eng'g v. Board of Professional
Engrs., 113 Idaho 646, 747 P.2d 55 (1987)).
|||We agree with the district court's finding that this statute is not unconstitutionally
vague on its face, even though the Board has not promulgated any regulations
to further define or explain the statute. The language of the statute is
similar to the well-accepted definition of medical malpractice contained
in I.C. § 6-1012, and is merely a codification of already existing case
law. Bolen v. United States, 727 F. Supp. 1346 (D. Idaho 1989); LePelley
v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980); Swanson v. Wasson, 45
Idaho 309, 262 P. 147 (1927). The finding of the district court that I.C.
§ 54-1814(7) is not unconstitutionally vague on its face is therefore affirmed.
|||Dr. Krueger also argued that the statute was vague as applied, relying
on this Court's decisions in H & V Eng'g v. Board of Professional Engrs.,
113 Idaho 646, 747 P.2d 55 (1987) and Tuma v. Board of Nursing, 100 Idaho
74, 593 P.2d 711 (1979). The district court held that to avoid a finding
of vagueness as applied, Tuma and H & V required the Board to find from
the evidence that the standard it adopted was one recognized by a "consensus
of expert opinion."
|||In Tuma, a registered nurse sought review of an order of the Board of
Nursing which suspended her license under I.C. § 54-1422(a)(7), for interfering
with a doctor-patient relationship by discussing alternative treatment methods
with a terminally ill cancer patient. The primary issue on her appeal was
whether her due process rights were satisfied by a statute which authorized
the suspension of her professional license to practice nursing on the grounds
of "unprofessional conduct" in the absence of statutes or regulations
specifically defining the conduct which would be deemed unprofessional.
|||This Court recognized in Tuma, that the right to practice one's profession
is a valuable property right and that a state cannot exclude a person from
the practice of his profession without having provided the safeguards of
due process. 100 Idaho at 77, 593 P.2d at 714 (citing Schware v. Board of
Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957), and
Ferguson v. Board of Trustees of Bonner County, School Dist. No. 82, 98
Idaho 359, 364, 564 P.2d 971, 976 (1977)). In Tuma, this Court applied a
two-pronged test to the void for vagueness doctrine, noting that:
|||Not only are those whose activities are proscribed entitled to definite
standards by which they may be guided, but it is equally important that
the standards are there to guide those officers or agencies required to
pass judgment on licensees called to account for their conduct.
|||100 Idaho at 80, 593 P.2d at 717. We found that the statutory definition
of "unprofessional conduct" in question did not adequately warn
Tuma of the possibility that her license would be suspended if she engaged
in conversations with a patient regarding alternative procedure.
|||In Tuma and H & V, we held that the administrative boards could not
rely merely on their own expertise, experience and collective knowledge,
but must articulate clear standards which will warn the professional as
to which acts are unlawful. We find the facts of this case distinguishable
from those in Tuma and H & V. In both of those cases the respective
boards did not rely on the testimony of expert witnesses with regard to
the professional standards in question, and instead relied solely on the
expertise of the members of the board. In this case extensive expert testimony
by local physicians was presented from which the Board made its determination
that Dr. Krueger's conduct did not meet the local standard of care. It should
also be noted that in Tuma we recognized that there had been no allegation
that Tuma was unfit to practice nursing (citing the California case of Morrison
v. State Bd. of Educ., 1 Cal. 3d 214, , 461 P.2d 375, 387-88 (1969), in
which a teacher's license revocation for unprofessional conduct was saved
from a holding of vagueness by a judicial interpretation construing the
statutory language to constitute a ban on conduct which would indicate an
unfitness to teach). In the instant case the Board did call into question
Dr. Krueger's fitness to practice medicine.
|||Tuma may be further distinguished in that it was not the Board of Nursing
which found Tuma guilty of unprofessional conduct, but a hearing officer
who "was not possessed of that expertise born of 'personal knowledge
and experience' which would have enabled him, albeit after the fact, to
determine whether Tuma had indeed acted unprofessionally." 100 Idaho
at 81, 593 P.2d at 718. The Board of Nursing's only function was to approve
or disapprove the decision of the hearing officer who had only a legal background.
In this case the finding that Dr. Krueger had violated the community standard
of care came directly from the Board of Professional Discipline of the Idaho
State Board of Medicine, which was comprised of members of the medical community
who did possess expertise born of personal knowledge and experience. The
utilization of this experience, technical competence, and specialized knowledge
in the evaluation of evidence is specifically permitted by I.C. § 67-5210(4).
|||The hearing officer and the district court both relied on this Court's
holdings in Tuma and H & V to support a requirement of a "consensus
of expert opinion." We believe, however, that the district court's
reliance on the consensus language from the Tuma opinion was misplaced.
In Tuma, this Court was addressing the authority which was conferred upon
a board to promulgate rules and regulations further defining unprofessional
conduct when it quoted the "consensus" language from Reyburn v.
Minnesota State Bd. of Optometry, 247 Minn. 520, 78 N.W.2d 351 (1956). Reyburn
was cited for the proposition that in promulgating rules, a board could
"declare as 'unprofessional' only such conduct as fails to conform
to those standards of professional behavior which are recognized by a consensus
of expert opinion as necessary for the public's protection." (Emphasis
in original). 100 Idaho at 78, 593 P.2d at 715. Reyburn goes on to say that
". . . the antecedent adoption by the board of rules and regulations
defining what constitutes 'unprofessional conduct' is not a prerequisite
to the suspension or revocation of a practitioner's license for 'unprofessional
conduct.' Bell v. Board of Regents, 295 N.Y. 101, 65 N.E.2d 184, 163 A.L.R.
900, with Annotation at page 909." 78 N.W.2d at 357. Reyburn did not
hold that a board was prohibited from disciplining a person for "unprofessional
conduct" unless it first found that the conduct was considered inappropriate
by a consensus of expert opinion. It should also be noted that the Reyburn
court held the statute in question was not unconstitutionally vague:
|||Since "unprofessional conduct" is of itself, without amplification,
a sufficiently definite ground upon which the board may revoke or suspend
a license, it cannot reasonably be maintained that such a statutory provision
becomes invalid simply because the legislature has expressly defined certain
acts as unprofessional conduct but has left it to the board to determine
what additional and other acts and omissions are "unprofessional."
It would be unreasonable to hold that, when the legislature prescribes only
the basic standard of "unprofessional conduct," the statute is
sufficiently definite to be valid but that it is invalid when the legislature
attempts a partial enumeration of what constitutes such conduct. The statutory
phrase "among other things" coupled to the enumeration of specific
or illustrative acts of unprofessional conduct is indicative merely of a
legislative intent not to occupy the entire field by express definition
but to delegate to the board the duty of ascertaining what other or additional
acts violate the profession's acceptable standards.
|||78 N.W.2d at 356.
|||In Tuma we cited Ward v. Oregon State Bd. of Nursing, 266 Or. 128, 510
P.2d 554 (1973), for the proposition that "one of the characteristics
of a profession is its responsibility to formulate standards of conduct
for its members." 266 Or. at 134, 510 P.2d at 557. While it is not
disputed that the Board in this case has the power to promulgate rules and
regulations, we also note that the Ward court stated, "It is to be
expected that the legislature would intend to vest in a board made up of
members of the profession a certain amount of leeway in applying those standards
in disciplinary proceedings." 510 P.2d at 557.
|||We are convinced that Dr. Krueger did have adequate notice of the conduct
which could subject him to discipline. The statute in question here is distinguishable
from the "unprofessional conduct" statute in Tuma and the "misconduct"
statute in H & V, in that it merely codified well-established concepts
of medical malpractice. In view of the similarity between the disciplinary
statute and the accepted definition of medical malpractice, we believe the
language of I.C. § 54-1814(7) was sufficient to notify medical practitioners
that they could be disciplined for failure to conform to the community standards.
We therefore reverse the district court's finding that the Board's decision
as to patients A through E would be unconstitutionally vague in the absence
of a finding that the decision was supported by a consensus of expert opinion.
We also reverse the order of the district court remanding to the Board the
decisions as to patients A through E.
|||PROCEDURAL DUE PROCESS ARGUMENT
|||With regard to the treatment of patient H, the Board found clear and convincing
evidence that the use of sensorcaine was contraindicated, that Dr. Krueger's
use of pitocin was inappropriate, and that his management of the delivery
of patient H did not meet the standard of care provided by other qualified
physicians in the Boise community.
|||The Board appeals the district court's holding which overturned the Board's
decision regarding patient H, based upon inadequate notice of charges. The
Board argues that Dr. Krueger was fully apprised by the complaint that his
handling of the delivery of patient H was in dispute, and notes that Krueger
presented a defense to the allegations that his use of the medicines was
contraindicated. Krueger maintains that the complaint only provided notice
that there was alleged to have been a delay in performance of the C-section,
and that because of lack of notice he was unable to adequately respond to
the charges that he had inappropriately administered the medications.
|||We agree with the district court's finding that there was a deviation
between the allegations and the proof as to patient H which violated Dr.
Krueger's constitutional right to procedural due process. The complaint
|||On or around April 15, 1986, at St. Alphonsus Regional Medical Center
in Boise, Idaho, Respondent performed a c-section delivery of the baby of
patient H. . . There was an inappropriate delay in performing the c-section
in light of evidence of fetal distress.
|||Under the Idaho Administrative Procedures Act, the Board was required
to set forth a short and plain statement of the ground of complaint and
a statement of the facts or things done or omitted to be done. IDAPA 22.G.8.f.
We find that the complaint as to patient H failed to adequately notify Dr.
Krueger that the Board was charging him with administering inappropriate
medication which caused the fetal distress, and that he lacked a fair opportunity
to gather witnesses and prepare a defense. We therefore affirm the district
court's direction to strike the Board's Conclusion that Dr. Krueger's management
of the case of patient H did not meet the standard of care provided by other
qualified physicians in the Boise community.
|||ADMISSIBILITY OF JURY VERDICT
|||Two weeks prior to the hearing officer's submission of his proposed decision
to the Board, a jury in an independent action concluded that Dr. Krueger
was not liable for malpractice in his care of patient F. Krueger moved the
Board to receive evidence regarding that jury verdict and to consider the
verdict in its evaluation of Dr. Krueger's conduct as to patient F. The
Board denied that motion, and the district court held that the Board acted
correctly in not considering the verdict as evidence or giving the verdict
any preclusive effect in the disciplinary proceeding.
|||Krueger cited Brown v. Idaho State Board of Pharmacy, 113 Idaho 547, 746
P.2d 1006 (Ct.App. 1987), for the proposition that a judicial judgment is,
under I.C. § 67-5210, admissible in an administrative proceeding. In Brown,
an administrative disciplinary action was brought against a pharmacist who
had entered a guilty plea to a criminal charge of possession of drug paraphernalia.
That criminal conviction was the basis of the disciplinary proceeding under
I.C. § 54-1726(1)(c), which provides that the conviction of a felony or
any violation of a state drug law is sufficient grounds for discipline and
thus is distinguishable on its facts.
|||Krueger maintains the jury concluded that he had met the local community
standard of care as to patient F and that the verdict was a judicially cognizable
fact which the Board should have considered. While the verdict was favorable
to Dr. Krueger, it is unclear whether the jury felt he had not violated
the standard of care. The question which the jury answered negatively asked:
"Was the defendant, Philip M. Krueger, negligent, which negligence
was a proximate cause of the plaintiff's [name omitted] injuries?"
The negative answer could have indicated that the plaintiff had failed to
prove that she suffered injuries or that the jury believed the negligence
of Krueger was not the proximate cause of the injuries. The verdict was
not relevant under I.R.E. 401 as it did not have a tendency to make the
existence of any fact that was of consequence to that proceeding more probable
or less probable. We also agree that the jury verdict is not entitled to
any preclusive effect, for the reason that the Board was neither involved
in the independent malpractice action nor had a special relationship which
would make it appropriate to bind them by the verdict. We therefore affirm
the district court's finding that the Board was correct in refusing to consider
|||We reverse the district court's order remanding the decisions as to patients
A, B, C, D and E. We affirm the district court's findings as to patients
F and H.
|||Because we find that the Board did not act without a reasonable basis
in fact or law, no attorney fees will be granted under I.C. § 12-117.
|||BISTLINE and JOHNSON, JJ., and SCHILLING and TROUT, JJ. pro tem., concur.
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