No. 87-226 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DAVID VERNON KAUFFMAN, M.D., 

Plaintiff and Appellant, 

-vsDEPARTMENT OF COMMERCE, BOARD OF 

MEDICAL EXAMINERS, A political 

subdivision of the State of Montana, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leaphart Law 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 

pu;' 2, 'A 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 of Medical 

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 infant patients 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 unprofessional conduct. 

On October 25, 1985, the Board issued an amended notice 

of hearing based upon the same allegations. 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 

the unlicensed practice of medicine; 

V. Dr. Kauffman falsely, fraudulently and deceptively 

submitted. bills to the Montana Social and Rehabilitative 

Services (SRS) ; 
VI. Dr. Kauffman continued to provide prenatal care to 

a patient following the original restriction order; and 

VII. Dr. Kauffman provided care for a new obstetrics 

patient following the original restriction order. 

Contested hearings were held 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 practice when 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 office birthing; 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) administer oxygen; 

(3) place Susan Buck in the knee-chest position; 

(4) transport Susan Buck to the North Valley Hospital 

in Whitefish (instead of Kalispell Regional Hospital), 

(5) accompany Susan Buck to the hospital and push on 

the head of the baby and monitor the baby. 

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 malpractice when 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 of diabetes and was post-term; 

(4) adequately monitor the unborn baby; 

(5) deliver the infant once fetal distress was 

obvious. 

In Count 111, the Board alleged that Dr. Kauffman 

misled some of his obstetrical patients when 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, which provides in pertinent part: 

(2) The court may not substitute its 

judgment ---- for that of the agency as -- to 

- the weight - of the evidence - on questions 

of fact. ~hrcourt mav affirm the 
decision of the agency or remand the 

case for further proceedings. The court 

may reverse or modify the decision if 

substantial rights of the appellant have 

been prejudiced because the administrative findings, inferences, conclusions, 

or decision are: 

(a) in violation of constitutional or 

statutory provisions; 

(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 of discretion or clearly unwarranted exerci-se of 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 the proper remedy. 
The Board. made 134 findings of fact which 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 , 

MCA . In the Board's conclusions of law, the serious nature 

of this proceeding is addressed: 

Underlying this proceeding is the unspoken problem of terminating this doctor's 

right to practice his chosen profession, 

and the havoc that will bring to him 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 inconvenience when compared to the agony caused 

the two families by 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 to practice medicine. 

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 discretion when it 

revoked appellant's license to practice medicine. 

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. In his findings of fact and conclusions of 

law, the hearing examiner reversed his ruling and rejected 

Exhibit 8. In doing so, the hearing examiner stated: 

I now reverse that ruling. Exhibit 8 is 

excluded from the evidence and was not 

considered by me in preparation of these 

findings of fact and conclusions of law. 

In light of the overwhelming evidence it 

would have made no difference. 

In light of the above-mentioned statement, we hold the 

appellant Kauf fman was not prejudiced by introduction of 

Exhibit 8. The issue at hand 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 of his 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 

extensively broad. 

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 "clearly erroneous"; conclusions of 

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 objections made, 

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, it may "take any other action in 

relation to disciplining him as the Board in its discretion 

considers proper." 

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 misdemeanor 
under 5 37-3-325, MCA. That course was not followed here by 

the Board, although if the Board's allegations were 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 revoking his 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. In White we also pointed that the 

intention of the legislature should be served by licensing 

agencies in the discharge of their duties. Here, the 

privilege of the practice of medicine should be regulated "to 

the end that the public shall be properly protected against 

unprofessional, improper, unauthorized, and unqualified 

practice of medicine" (§ 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." 

(5 37-3-202, MCA). The greatest public interest in this case 

would be served by limiting the restriction of Dr. 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 to practice 

within all fields of his expertise in Montana. Under White, 

this is an abuse of discretion. 

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 felt by the bereaved families of the 
infants to the "inconvenience" of Kaufman's loss of license. 

Our natural sympathies are played upon and the punishing 

effect of the order is masked as just retribution. 

6, .*'t, ,+L : b~-&?L4bfl\, 

Justice 4