No. 87-226

IN THE SUPREME COURT OF THE STATEOF MONTANA
1987

DAVID VERNON KAUFFMAN,M.D., Plaintiffand Appellant,-vsDEPARTMENTOF COMMERCE,BOARD OF MEDICAL EXAMINERS,A political subdivision of the State ofMontana, Defendantand Respondent.

APPEAL FROM: District Court of the Eleventh JudicialDistrict, In and for theCounty of Flathead, TheHonorable Michael Keedy,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: LeaphartLaw Firm;C. W. Leaphart,Jr. argued, Helena, Montana

For Respondent: Harrison,Loendorf & Poston; John P. Poston argued, Helena,Montana

Submitted: November 3,1987 Decided: November 20, 1987 

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## 1987 Filed:Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.Petitioner and appellant David Vernon Kauffman, M.D., appeals an order of the Eleventh Judicial District,Flathead County, affirming the decision of the State Board ofMedical Examiners (Roard) to revoke Kauffman's medical license. We affirm. Two issues are presented for our review: 1. Did the Board abuse its discretion when it revoked Kauffman's medical license? 2. Was appellant Kauffman prejudiced when the Roard offered Exhibit 8 into evidence? Appellant, Dr. David Kauffman, is a graduate of Eastern Mennonite College, Harrisburg,Virginia, and Hahnemann Medical College, San Francisco, California. In 1957 Kauffman interned at Sacred Heart Hospital in Spokane, Washington. Since 1959,he has practiced medicine in Whitefish,Montana. Following the death of two infantpatients in 1984, the Roard restricted Dr. Kauffman's license by barring him from treating obstetrical patients and providing neo-natal care to infants. The Board alleged three instances of unprofessional conduct. Following continuance, Dr. Kauffman responded by denying any unprofessionalconduct. On October 25, 1985,the Board issued an amended notice of hearingbased upon the sameallegations. The Board reconfirmed that Dr. Kauffman was restricted from practicing obstetrical and neo-natal care. The amended notice a.lso contained the following allegations: IV. Dr. Kauffman aided and abetted another person in theunlicensed practice ofmedicine; V. Dr. Kauffman falsely, fraudulently and deceptively submitted.bills to the Montana Social and Rehabilitative Services (SRS);VI. Dr. Kauffman continued toprovideprenatal care to

apatient following the original restriction order; and VII. Dr. Kauffman provided care for a new obstetrics patient following the original restrictionorder. Contested hearingswereheld March 17, 18, 19 and March 30 and April 1, 1986. On June 23, 1986,another hearing was held before the full Board of Medical Examiners. The Board issued its final order on June 27, 1986, revoking Dr. Kauffman's license to practice medicine. On April 1, 1987, the Honorable Michael H. Keedy affirmed the Board's order. In Count I,the Board alleged that Dr. Kauffman committed negligent medical practicewhen caring for Susan Buck and her unborn baby. The Board determined that: (1) Dr. Kauffman's birthing room was not adequately equipped; (2) obstetrical patients were not fully informed of the process of officebirthing; and (3) Dr. Kauffman did not have a protocol for complications. The Board also determined that Dr. Kauffman committed negligence and gross malpractice when the unborn baby's umbilical cord became prolapsed and Dr. Kauffman failed to: (1) leave Susan Buck in the care of qualified and competent personnel; (2) administeroxygen; (3) place SusanBuck in the knee-chest position; (4) transport Susan Buck to the North Valley Hospital in Whitefish (insteadofKalispell RegionalHospital), (5) accompany Susan Buck to the hospital and push on thehead of the baby andmonitor thebaby. In Count 11, the Board alleged that Dr. Kauffman committed negligent medical practice and gross medical malpractice when caring for Kimberly Koppen and her unborn baby.The Board found that Dr. Kauffman committed negligence and gross malpracticewhen Dr. Kauffman failed to: (1) test Kimberly for gestational diabetes; (2) perform non-stress testing after Kimberly Koppen reached full term; (3) recognize Kimberly was a complicated patient with

a family history ofdiabetes andwas post-term; (4) adequatelymonitor the unbornbaby; (5) deliver the infant once fetal distress was obvious. In Count 111, the Board alleged that Dr. Kauffman misled some ofhis obstetrical patientswhen he informed them that he would have hospital privileges before the birth of their children. Dr. Kauffman did not refute the Board's allegation. In Count IV, the Board found Dr. Kauffman not guilty of aiding and abetting an unlicensed physician in the practice of medicine. In Count V, the Board found Dr. Kauffman not guilty of false, fraudulent or deceptive billing practices. In Counts VI and VII the Board found Dr. Kauffman guilty of violating the Board's order that Dr. Kauffman discontinue to provide obstetrical care. Dr. Kauffman did not dispute the Board's finding.

Issue 1 Did the Board abuse its discretion when it revoked Kauffman's medical license? Our standard when reviewing contested cases under the Montana Administrative Procedures Act (MAPA) is found in S 3-4-704,MCA, whichprovides in pertinentpart: (2) The court may not substitute its judgment for that of the agency as to 

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### - - - of fact. ~hrcourt mav affirm thedecision of the agency or remand the case for furtherproceedings. The court may reverse or modify the decision if substantial rights of the appellanthave been prejudiced because the administrative findings, inferences, conclusions, or decision are:

(a) in violation of constitutional or statutoryprovisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure; (dl affected by other error of law; (el clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;

(f) arbitrary or capricious or characterized by abuse ofdiscretion or clearly unwarranted exerci-seof discretion; or (g) because findings of fact, upon issues essential to the decision,were not made although requested. [Emphasis added.] Appellant Kauffman does not challenge any of the Board's findings of fact or conclusions of law. Further, Dr. Kauffman does not challenge the Board's authority to revoke his medical license. Rather,appellant Kauffman contends the Board acted in a punitive, rather than a protective manner when it revoked his license. In re Matter of the Denial of License of Rudolph E. White (Mont. 1986), 712 P.2d 1344, 1346, 43 St.Rep. 151, 154;S 37-3-101,MCA. Appellant argues that a license restriction rather than a license revocation is theproper remedy.The Board.made 134 findings of factwhich were adopted by the District Court. A review of the Board's findings reveals that Dr. Kauffman practiced medicine in a "half-hearted" manner in nearly all areas of his medical practice. Clearly, the Board's decision is based on reliable, probative and substantial evidence, $ 2-4-704(2)(el

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# . In the Board's conclusions of law, the serious nature of thisproceeding is addressed: Underlying thisproceeding is theunspokenproblem of terminatingthisdoctor's right topractice his chosen profession, and thehavoc thatwill bring tohim and his family. No doubt this is a point which must be seriously considered. However, the upheaval revocation will cause the Kauffmans is a mere inconveniencewhen compared to the agony caused the two familiesby the deaths of their infants.

Dr. Kauffman's care and treatment of S.B. and K.K. are each by themselves enough to invoke revocation of Dr. Kauffman's license topracticemedicine. However, the evidence established that the unfortunate deaths of the two infants were no quirks of fate occurring in the practice of an otherwise competent and conscientious physician. Rather, they were all but inevitable events in view of the lax and half-hearted manner in which Dr. Kauffman practiced medicine. Whether this is a result of disinterest or inability is only of secondary interest.

As a court of last resort,we appreciate the gravity of removing appellant's means of livelihood. However, we are bound by $ 2-4-704, MCA, to affirm the findings of fact and conclusions of law of the Board and the District Court in absence of an abuse of discretion. Yanzick v. School Dist.No. 23 (1982), 196 Mont. 375, 388, 641 P.2d 431, 439. We hold the District Court did not abuse its discretionwhen it revoked appellant's license topracticemedicine.

Issue 2 Was appellant Kauffman prejudiced when the Board offered Exhibit 8 into evidence? Appellant contends Exhibit 8, a 1978 letter from the Board to Dr. Kauffman,was introduced at the hearing without proper prehearing exchange. Section 2-4-612, MCA. The hearing examiner initially admitted Exhibit 8 over appellant's objection. Inhis findings of fact and conclusionsof law, the hearing examiner reversed his ruling and rejected Exhibit 8. 

### Indoing so,thehearing examiner stated: Inow reverse that ruling. Exhibit 8 is excluded from the evidence and was not considered by me inpreparation of these findings of fact and conclusionsof law. In light of the overwhelming evidence it would have made no difference.

In light of the above-mentioned statement,we hold the appellant Kauffman was not prejudiced by introduction of Exhibit 8. The issue athand is similar to a bench trial, in which the trier of fact routinely reviews proposed exhibits before admitting or rejecting them. Appellant's argument is unpersuasive. We suggest that Dr. Kauffman continue his medical education and training if he desires to move the Board of Medical Examiners to reinstate his medical license.We concur:Mr. Justice John C. Sheehy dissenting:

Dr. Kauffman has limited his appeal in this case to the breadth of the order revoking his medical license. He contends that out ofhis broad general practice, as a general practitioner, the issues on which the Board of Medical Examiners found against him are limited to the narrow field of his practicing obstetrics-gynecology. The findings of the Board substantiate his argument. Apart from the problems that developed from his practice of obstetrics,no complaint exists against him with respect to any other portion of his general practice which over nearly 30 years, has been extensivelybroad. On review from an agency decision under the Montana Administrative Procedure Act (Section 2-4-704, MCA)

### , "the standard of review to be applied to findings of fact by a reviewing court is one of "clearlyerroneous";conclusionsof law are subject to an "abuse of discretion review." Bill.inqs

v. Billings Fire Fighters Local No. 521 (1982), 200 Mont. 421, 651 P.2d 627. It appears to me to be an abuse of discretion to revoke completely Dr. Kauffman's license to practice medicine,when, in the light of the objectionsmade,

a fair result could be obtained by simply restricting him from the practice of obstetrics-gynecology. The Board has power to do so under S 37-3-323(65) (e)

## ,MCA. When the Board disciplines a practitioner, itmay "take any other action in relation to disciplining him as the Board in its discretion considersproper." There is power under our statutes for the Board to enforce a partial restrictive order or suspension of the right to practice. A violation of the Board's order restricting such practice is punishable as a misdemeanorunder 5 37-3-325, MCA. That coursewas not followed here by the Board, although if the Board's allegationswere true, a procedure under 5 37-3-325, MCA, would be more effective in enforcing the Board's suspension order. The ensuing action of the Board in completely revokinghis license to practice, rather than a partial suspension relating to the field in which it charged incompetence has a punitive smack. Punishment is the business of courts and not of administrative agencies. In Matter of White (Mont. 1986), 712 P.2d 1344, 43 St.Rep. 151, we found the denial of a nursing license to be hypertechnical and an abuse of discretion by the agency. InWhite we alsopointed that the intention of the legislature should be served by licensing agencies in the discharge of their duties. Here, the privilege of the practice ofmedicine shouldbe regulated "to the end that the public shall be properly protected against unprofessional, improper, unauthorized, and unqualified practice ofmedicine" (§ 37-3-101,MCA), and the Board should maintain such reasonable supervision to ensure that licensees, "maintain standards of conduct and exercise [their] privileges 

# . . . in the greatest public interest." (537-3-202,MCA). The greatestpublic interest in this case would be servedby limiting the restrictionofDr. Kauffman's license to obstetrics and gynecological cases,and leave him free to practice in all other fields in which he is qualified. The people in northwest Montana would be better served by such a course. The effect of the Eoard's decision is to deny to a qualified practitioner the right topractice within all fields of his expertise inMontana. Under White, this is an abuse ofdiscretion. An example of going outside the record to justify a result is the resort by the agency and now this Court to a comparison of the agony feltby the bereaved familiesof theinfants to the "inconvenience" of Kaufman's loss of license. Our natural sympathies are played upon and the punishing effect of theorder ismasked as just retribution.

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