Summary 2009 WY 42

Summary of Decision issued March 25, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Greene, D.C. v. State, ex rel., Board of Chiropractic Examiners

Citation: 2009 WY 42

Docket Number: S-08-0137

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Appellant Greene: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General; Kennard F. Nelson, Senior Assistant Attorney General.

Facts/Discussion: Two patients of licensed chiropractor Greene filed complaints against him with the Wyoming Board of Chiropractic Examiners (Board). Following a contested case hearing, the Board entered an order dismissing one of the complaints and indefinitely suspending Greene’s license to practice based on the second complaint.

Evidentiary Error: Mental Health Records: Dr. Greene attempted to obtain copies of the complainant SS's mental health records. Following a hearing, the OAH examiner found that the information sought was protected by privilege and did not fall within any exception. For the exception in § 33-27-123(a)(iii) to apply, a patient must allege mental or emotional damages in litigation and SS did not do so. Rather, she was a witness in an administrative licensing proceeding before the Board and no damages were recoverable.
Lack of Notice: Dr. Greene relied on Slagle which stands for the principle that a licensing board may not consider in a contested case hearing matters concerning allegations of which the licensee has not been given notice. The Court stated that the letter of intent and notice of hearing clearly notified Dr. Greene of the allegations giving rise to the disciplinary action. From documentation provided in discovery, he had notice of specific witness statements. From the record, the Court noted there was no question that Dr. Greene had notice of the conduct and violations being alleged against him and the matter the Board considered at the hearing.
Non-complaining Witness Testimony: Dr. Greene asserted the Board erred in allowing a non-complaining witness to testify. The Court noted no such requirement in the statute or rule. There is no requirement that a patient having information relevant to proceedings against a chiropractor brought by another patient must file a complaint. Administrative hearings are governed by WAPA and administrative agencies acting in a judicial or quasi judicial capacity are not bound by the rules of evidence that govern trials by courts or juries. The standard for admissibility of evidence at an administrative hearing is contained in § 16-3-108(a). The Board did not abuse its discretion in allowing the testimony because it concerned an alleged incident 20 years before the complaints giving rise to the disciplinary proceeding. Whether testimony should be excluded is a discretionary decision for the agency.
Mr. Blanchard’s Testimony: Blanchard, a licensed professional counselor, testified on Dr. Greene’s behalf. Dr. Greene argued that the Board did not mention all the testimony from Blanchard. As the trier of fact, the Board was entitled to give Blanchard’s testimony the weight it concluded it deserved in light of other evidence presented.
Licensing Records of Dr. Greene’s Experts: After reviewing the record, the Court concluded that neither the Board nor the OAH committed any evidentiary error with respect to Dr. Greene’s expert witnesses’ licensing records. The hearing examiner properly declined to admit the records into evidence, the State’s questions to Dr. Blanchard concerned information found in his C.V. and with only one exception, the State’s questions to Dr. Brown likewise did not require his licensing records. While confidential records may have been improperly obtained, they were not admitted into evidence for consideration by the board. The Court noted their concern about the State’s effort to use information concerning Dr. Brown from the Board of Chiropractic Examiners’ file. Without the consent of Dr. Brown or a court order, the assistant attorney general was not authorized to obtain and the Board was not authorized to release confidential information from the file.
Sufficiency of the Evidence: In its findings, the Board specifically found that the witnesses were credible and the statements they gave during the investigation were consistent with their hearing testimony. In contrast, the Board found that Dr. Greene’s testimony concerning events was sometimes not supported by his notes on patient charts. The Board also found that Dr. Greene’s statements during the investigation were sometimes different than his hearing testimony and his testimony on cross sometimes contradicted his direct examination testimony.

Conclusion: Having reviewed the record, the Court held that clear and convincing evidence was presented which would persuade the Board that the contentions that Dr. Greene acted improperly and violated the Board Rules and ethical standards was highly probable.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/djmcxk .

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