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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Halter v. State; Dept of Commerce and Economic Dev. (11/5/99) sp-5198

Halter v. State; Dept of Commerce and Economic Dev. (11/5/99) sp-5198

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA


LOREN D. HALTER, D.O.,        )
                              )    Supreme Court No. S-8245
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3KO-94-708 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF COMMERCE AND ECONOMIC      )
DEVELOPMENT, MEDICAL BOARD,   )    [No. 5198 - November 5, 1999]
                              )
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
                        Sen K. Tan, Judge.


          Appearances: Charles A. Winegarden, Winegarden
& Whitaker, Kenai, for Appellant.  Maurice McClure, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.  


          Before: Matthews, Chief Justice, Compton, and
Bryner, Justices.  [Eastaugh and Fabe, Justices, not
participating.] 


          COMPTON, Justice.


I.   INTRODUCTION
          Alaska Statute 08.64.326(a)(8)(A) authorizes the Alaska
State Medical Board (Board) to sanction a physician when the Board
finds that the physician has demonstrated professional
incompetence.  Professional incompetence is defined by regulation
as "lacking sufficient knowledge, skills, or professional judgment
. . . to a degree likely to endanger the health of his or her
patients."[Fn. 1]  The Board found that Dr. Loren D. Halter's
failure to adequately chart prescriptions for controlled substances
amounted to professional incompetence.  This court must decide
whether AS 08.64.326 was vague as applied to Dr. Halter, because
there were no specific regulations about record-keeping standards
to provide Dr. Halter notice of what was required of him.
II.  FACTS AND PROCEEDINGS
          Dr. Loren D. Halter is a physician practicing in Kodiak.
On March 19, 1993, the State Division of Occupational Licensing
(Division) filed an Accusation against Dr. Halter alleging that he
had not adequately recorded on his patients' charts prescriptions
for controlled substances, and that this failure amounted to
professional incompetence.  The Accusation charged that "Dr. Halter
often does not chart in his patients' files the controlled
substances that he prescribes for them and often does not chart a
patient evaluation, justification, and/or necessity for the
prescription." The Accusation contained twenty-one counts.  The
first count was a general accusation that the failure to adequately
chart amounted to professional incompetence.  The other twenty
counts dealt with the failure to chart in specific patients' files. 
          At a hearing held at Dr. Halter's request, the Division
dismissed two counts.  The Division sought probation restrictions,
rather than suspension or revocation of Dr. Halter's license. 
          The hearing officer found that Dr. Halter had violated
standards in Counts I, V, XIV, XV, and XVII.  The officer found
that "[f]ailure to adequately document and monitor a patient's
prescriptions for scheduled drugs could lead to over medication,
drug dependence, or addiction." But the officer found that Dr.
Halter's "motives in treating the patients under consideration here
were praiseworthy -- the relief of chronic pain." The officer
recommended that Dr. Halter be fined $3,000.  The Board adopted the
hearing officer's decision, but stayed the fine for two years.  If
at the end of the two-year period there were no additional
violations, the fine would be dismissed.
          Dr. Halter appealed the Board's decision to the superior
court.  The superior court affirmed the Board's decision on Count I
to the extent it was based on a violation of AS 08.64.326(a)(8),
and on Counts V, XIV, and XV.  But it reversed the decision on
Count XVII, and on Count I to the extent it was based on a
violation of AS 08.64.326(a)(5).  The court remanded the case to
the Board "so that it may consider whether the sanctions originally
imposed in this matter are appropriate in light of this court's
findings." On remand, the Board noted that one and one-half of the
counts had been reversed; nonetheless, it reimposed the original
sanction.  The superior court then entered final judgment.  Dr.
Halter appeals.
III. DISCUSSION
     A.   Standard of Review
          On appeal we independently review the merits of the
administrative decision and give no deference to the decision of
the superior court. [Fn. 2]  We apply our independent judgment to
constitutional issues, adopting a "'reasonable and practical
interpretation in accordance with common sense' based upon 'the
plain meaning and purpose of the provision and the intent of the
framers.'"[Fn. 3]
          Our review of the Board's factual findings is limited to
whether there was substantial evidence in the record to support the
Board's findings. [Fn. 4]  Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
the Board's conclusion. [Fn. 5]
     B.   Were Dr. Halter's Due Process Rights Violated Because AS
08.64.326(a)(8)(A) and 12 AAC 40.970 Are Vague and Do Not Provide
Notice of the Need to Properly Keep Records? 
          Dr. Halter argues that his due process rights were
violated because he had no notice of a standard of conduct
regarding record keeping.  He argues that AS 08.64.326(a)(8)(A) is
unconstitutionally vague because it is "inherently standardless."
He also argues that for the statute to be upheld, the State "must
show that an applicable standard existed for record keeping which
formed the foundation for the action."
          The State argues that "professional incompetence"as used
in AS 08.64.326(a)(8)(A) is not unconstitutionally vague.  It also
argues that substantial evidence supports a record-keeping standard
of care.
          Alaska Statute 08.64.326(a)(8)(A) allows the Board to
sanction a physician if the Board finds after a hearing that the
physician "has demonstrated professional incompetence, gross
negligence, or repeated negligent conduct."[Fn. 6]  "Professional
incompetence"is defined in the Alaska Administrative Code:
          As used in AS 08.64 and these regulations,
"professional incompetence"means lacking sufficient knowledge,
skills, or professional judgment in that field of practice in which
the physician or physician assistant concerned engages, to a degree
likely to endanger the health of his or her patients.[ [Fn. 7]]
          As Dr. Halter recognizes, this court already decided in
Storrs v. State Medical Board, [Fn. 8] that the term "professional
incompetence"in AS 08.64.326(a)(8)(A) is not unconstitutionally
vague.  But he argues that although the statute is not facially
vague, it is vague as applied to him.  Dr. Halter argues that it is
vague as applied to him because there are no underlying record-
keeping standards and that under Storrs the State was required to
promulgate standards.
          Storrs does not require the State to promulgate further
standards of conduct.  The argument that further rulemaking is
needed was specifically rejected in Storrs:
          The expression "incompetence or
unskillfulness"is not so uncertain in its meaning that further
definitive rulemaking by the Board is required before a dentist may
be disciplined. . . . It is sufficient to place a dentist on notice
that if his professional performance does not remain at a minimally
acceptable level of competence in the current state of the art, his
license to practice may be revoked.[ [Fn. 9]]
Storrs noted that the issue in several cases analyzing similar
statutes was "whether statutory language, similar to that
challenged by Dr. Storrs here, gave the licensee [physician] . . .
constitutionally adequate notice of proscribed conduct absent
administrative regulations further specifying the prohibited acts."
[Fn. 10]  Although the cases cited in Storrs [Fn. 11] held that
their statutes that included the term "unprofessional conduct"were
constitutionally adequate, Storrs noted that in Alaska that term is
further defined in 12 AAC 40.970. [Fn. 12]  We concluded that the
term "unprofessional conduct"so defined was not unconstitutionally
vague and gave sufficient notice to physicians. [Fn. 13]  No
further standard was needed.
          There appears to have been some confusion on this issue
among the parties and the hearing officer.  The State does not
argue that the standard provided by AS 08.64.326 and 12 AAC 40.970
is all that is needed.  Rather, the State argues that it met its
burden of proof in establishing a record-keeping standard of care.
And although the hearing officer recited the standard proscribed by
AS 08.64.326 and 12 AAC 40.970 in his findings, he also included
the following passage entitled "Standard of Care"in the
"Conclusions of Law Common to All Counts":
               The standard of care by which [Dr.
Halter's] treatment of patients is to be measured in this
proceeding is set forth in AS 09.55.540(1). [Dr. Halter] is
required to evidence the degree of knowledge or skill possessed and
the degree of care ordinarily exercised under the circumstances, at
the time of the treatment under consideration in this proceeding,
by physicians in family practice.

               The phrase "under the circumstances"is
construed to include the availability of specialists, medical or
treatment programs, and/or special facilities; as well as other
relevant factors such as the cost of transportation to receive
special medical treatment or evaluation, and the nature of work or
the lifestyle of patients involved. 
Alaska Statute 09.55.540 describes what a plaintiff must establish
in a medical malpractice action; the statute does not address a
standard for "professional incompetence"in AS 08.64.326(a)(8)(A)
and is irrelevant here.
          Nevertheless, it appears from the hearing officer's
findings on each count that he actually applied the correct
standard of professional incompetence, rather than the malpractice
standard.  For Count I, the hearing officer found that
          [d]epending upon the circumstances in each
patient's case, it may be incompetent medical practice to fail to
chart prescriptions written for patients in their files, and to
fail to document the patient evaluation and necessity for the
prescription in order to guard against drug overdoses, substance
abuse, and harmful drug interactions, and to keep a record of the
patient's medical condition and treatment for future use by any
medical provider who treats the patient.

          . . . . 

          Failures to document and communicate the
treatment plan may cause harm to the patient.  However, no actual
harm was demonstrated by clear and convincing evidence in the
record in this proceeding.
This finding shows that the hearing officer applied the standard of
professional incompetence as defined in 12 AAC 40.970.  The officer
basically found that Dr. Halter was "lacking sufficient knowledge,
skills or professional judgment . . . to a degree likely to
endanger the health of his or her patients."[Fn. 14]  Therefore,
although there appears to have been some confusion, it also appears
that the officer properly applied the statute to Dr. Halter.
          We conclude that AS 08.64.326(a)(8)(A) and 12 AAC 40.970
were not unconstitutionally vague as applied to Dr. Halter.
     C.   Does the Board Have Authority to Discipline a Doctor
Under AS 08.64.326(a)(8)(A) For Failure to Properly Keep Records?
     
          Dr. Halter argues that the Board did not have any
authority to sanction him because there is no statute or regulation
that requires Dr. Halter to keep records.  This is essentially the
same argument addressed above; that there needed to be record-
keeping standards beyond the standard of professional incompetence
in AS 08.64.326(a)(8)(A) and 12 AAC 40.970.  
          As discussed above, the Board is authorized to sanction
a physician who demonstrates professional incompetence. [Fn. 15] 
Since the Board found that Dr. Halter's failure to keep records
satisfied the definition of professional incompetence in 12 AAC
40.970, and the finding was based on substantial evidence in the
record, the Board had the authority to sanction Dr. Halter under
AS 08.64.326(a)(8)(A). 
     D.   Did the Board Improperly Rely on Findings in Counts V,
XIV, and XV to Sanction Dr. Halter?     
          Dr. Halter argues that the Board cannot use its findings
in Counts V, XIV, and XV to sanction him because the Board did not
find that he had violated AS 08.64.326 in those counts.  The State
did not address this issue.
          To sanction Dr. Halter, the Board needed to have found
that he "demonstrated professional incompetence, gross negligence,
or repeated negligent conduct."[Fn. 16]   In Count I, the hearing
officer essentially found that Dr. Halter was professionally
incompetent. In Counts V, XIV, and XV, the officer found that Dr.
Halter's action with each patient "constitutes negligent conduct,
but this finding for this count alone, does not constitute
'repeated negligent' conduct under AS 08.64.326(a)(8)(A)."
          Although the hearing officer found that each count alone
did not constitute repeated negligence, we conclude that all three
counts taken together satisfy the "repeated negligent conduct"
standard in AS 08.64.326(a)(8)(A).  For this reason, we conclude
that the sanction may be based on Counts V, XIV, and XV, along with
Count I.
     E.   Does Substantial Evidence Support the Board's Finding
That Dr. Halter Was Professionally Incompetent?
          Dr. Halter briefly challenges the sufficiency of the
evidence to support the Board's finding of professional
incompetence.  He argues that there is no evidence in the record to
support a finding that his actions may cause harm to a patient and
points out that no patients were actually harmed at any time.
          To sustain the sanction, there must be substantial
evidence to support the Board's conclusion that Dr. Halter's
conduct was professionally incompetent. [Fn. 17]  The State
presented two doctors from Oregon, Dr. Dobson and Dr. Keepers, who
thoroughly reviewed many of Dr. Halter's charts.  Dr. Dobson
testified that "Dr. Halter's recording was definitely inadequate"
because:
          He did not give a complete history in very
rare cases, that his physical examinations were usually incomplete,
that his plan, his working diagnoses were frequently missing, and
his treatment plans were sketchy or incomplete.  He very rarely
gave a good rationale or justification for most of the narcotics
and other medications that he prescribed.  I did find some, quite
a few prescriptions in the loose-leaf file that had not been
charted, and he did not keep  separate medications lists in his
file, so then I had no way of knowing that he'd actually written
them other than the fact that I had copies of them in the big
books. . . . Patients that had been seen at irregular intervals did
not have interval notes so that I had a great deal of difficulty in
determining that Dr. Halter's prescribing was appropriate.
          Dr. Keepers similarly testified that Dr. Halter's record
keeping was inadequate:
          I felt that in about two-thirds, 22 out of 32
of the charts, that Dr. Halter had prescribed narcotic analgesics
without having recorded a rationale or justification or treatment
plan concerning the problems.  Thus, on a review of the charts, it
was not possible to justify most of his prescriptions for these
patients.
  
          I also felt that the way in which he provided
the prescriptions was unsystematic and would have been difficult to
monitor because the chart recording was inadequate.  Many times in
these records essential parts of the history examination which
might have led to a conclusion that the treatment was correct were
missing.
Dr. Keepers also testified that "it's unlikely, given the format of
the records that I reviewed, that Dr. Halter had a clear idea of
the medications he was actually providing to each of these
patients.  And that's a critical part of the management of patients
with chronic pain." He concluded that he thought that Dr. Halter's
practices "constitute a risk for the patients involved."
          Both doctors testified at length about Dr. Halter's
actions in specific cases.  Their testimony is sufficient to
sustain the Board's finding of professional incompetence.  Although
Dr. Halter presented evidence that supported a contrary conclusion,
it was within the Board's authority to weigh conflicting evidence.
[Fn. 18] 
          We conclude that there is substantial evidence supporting
the Board's conclusion that Dr. Halter's conduct was professionally
incompetent.        
IV.  CONCLUSION
          The judgment of the superior court is AFFIRMED. 


                            FOOTNOTES


Footnote 1:

     12 Alaska Administrative Code (AAC) 40.970.


Footnote 2:

     Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 979 (Alaska
1997).


Footnote 3:

     Id. (quoting Arco Alaska, Inc. v. State, 824 P.2d 708, 710
(Alaska 1992)).


Footnote 4:

     Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).


Footnote 5:

     Storrs v. State Medical Board, 664 P.2d 547, 554 (Alaska 1983)
(citation omitted).


Footnote 6:

     AS 08.64.326(a)(8)(A) provides:

          The board may impose a sanction if the board
finds after a hearing that a licensee has demonstrated professional
incompetence, gross negligence, or repeated negligent conduct; the
board may not base a finding of professional incompetence solely on
the basis that a licensee's practice is unconventional or
experimental in the absence of demonstrable physical harm to a
patient.


Footnote 7:

     12 AAC 40.970.


Footnote 8:

     664 P.2d 547 (Alaska 1983).


Footnote 9:

     Id. at 550 (quoting Board of Dental Examiners v. Brown,
D.D.S., 448 A.2d 881, 884 (Me. 1982)).  


Footnote 10:

     Id. at 552.


Footnote 11:

     Bell v. Board of Regents, 65 N.E.2d 184, 187 (N.Y. 1946); 
Megdal v. State Bd. of Dental Examiners, 605 P.2d 273, 275 (Or.
1980).


Footnote 12:

     Storrs, 664 P.2d at 551-52.


Footnote 13:

     Id. at 550, 552.


Footnote 14:

     12 AAC 40.970. 


Footnote 15:

     See AS 08.64.326(a)(8)(A).


Footnote 16:

     AS 08.64.326(a)(8)(A).


Footnote 17:

     See Storrs, 664 P.2d at 554-55.


Footnote 18:

     See Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993).