PUBLISHED OPINION
Case No.: 95-2641
95-3067
Complete Title
of Case:
ALONZO R. GIMENEZ, M.D.,
Petitioner-Respondent,
v.
STATE OF WISCONSIN MEDICAL
EXAMINING BOARD and STATE OF
WISCONSIN DIVISION OF
ENFORCEMENT, DEPARTMENT OF
REGULATION AND LICENSING,
Respondents-Appellants.
Submitted on Briefs: May 29, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: July 2, 1996
Opinion Filed: July 2, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Green Lake
(If "Special", JUDGE: Donn H. Dahlke
so indicate)
JUDGES: Brown,
Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the respondents-appellants, the cause was submitted on the brief of James
E. Doyle, attorney general, and Donald P. Johns, assistant attorney
general.
Respondent
ATTORNEYSOn
behalf of the petitioner-respondent, the cause was submitted on the brief of Milton
Spoehr of Spoehr Law Office of Berlin.
COURT OF APPEALS DECISION DATED AND RELEASED July 2, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-2641
95-3067
STATE
OF WISCONSIN IN COURT OF
APPEALS
ALONZO R. GIMENEZ,
M.D.,
Petitioner-Respondent,
v.
STATE OF WISCONSIN
MEDICAL
EXAMINING BOARD and
STATE OF
WISCONSIN DIVISION OF
ENFORCEMENT,
DEPARTMENT OF
REGULATION AND
LICENSING,
Respondents-Appellants.
APPEAL from an order of
the circuit court for Green Lake County:
DONN H. DAHLKE, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before Brown, Nettesheim
and Snyder, JJ.
BROWN, J. The
circuit court reversed the State of Wisconsin Medical Examining Board's
findings that Alonzo R. Gimenez, M.D., endangered the health of his
patients. The circuit court concluded
that the Board had not mentioned or discussed certain elements which it
believed to be necessary components of Board factfinding. The Board appeals, claiming that it need
only set forth facts which, in the Board's opinion, support a finding that the
physician endangered a patient's health.
We disagree with the Board and hold that with every charge of
endangering a patient's health, there are five elements which the Board must
discuss seriatim in a written decision.
The Board is compelled by law to find the facts either supporting or not
supporting each element. We disagree,
however, with the circuit court's remedy of dismissing all charges against
Gimenez. The proper remedy is to remand
the case to the Board with directions to craft a decision conforming with the
law. We affirm in part, reverse in part
and remand with these directions.
Gimenez is a general
surgeon who has been practicing medicine in the Berlin area since 1955. Starting in 1965, Gimenez worked in
partnership with Dr. David Sievers until Sievers retired in 1987. After Sievers left the practice, Gimenez was
forced to take on a greater caseload.
The incidents which
formed the basis for the Board's investigation took place during the period
when Gimenez was seeing more patients owing to his partner's retirement. The four patients which the Board was
concerned about had a range of diseases, including an infected appendix, cancer
of the bladder, cancer of the colon and cardiovascular problems. Because we are focused on the Board's
procedures, and not its substantive decision that Gimenez acted improperly, we
need not provide any further details of these patients' illnesses and Gimenez's
treatment.
The Board initiated
proceedings against Gimenez in February 1991.
The administrative law judge submitted his proposed decision to the
Board on August 14, 1992. The Board
held oral arguments that October, made some modifications to the ALJ's
recommendations and issued its final decision in November 1992. The Board found that Gimenez's treatment of
these four patients was in violation of § 448.02(3), Stats., and Wis. Adm. Code § Med
10.02(2)(h) which prohibit physicians from engaging in conduct which threatens
the health and safety of their patients.
In November 1992,
Gimenez filed his appeal of the Board's decision with the circuit court. See § 227.52, Stats., 1993-94, amended, 1995
Wis. Act 27, § 6233.[1] In July 1995, the court ruled that the
Board's decision was “arbitrary” and “not sustained by the record” and
therefore set aside the Board's decision.
In particular, the circuit court was concerned by the “lack of any
findings to the ultimate material facts.”
The Board now claims
that the circuit court erred and asks us to reinstate its original decision. We will apply the same standards that the
circuit court did and independently review the Board's decision. See Gibson v. State Public Defender,
154 Wis.2d 809, 812, 454 N.W.2d 46, 47-48 (Ct. App. 1990).
Our review of the
Board's decision would ordinarily be governed by the “substantial evidence
test.” Under this test, we would only
determine if its findings are reasonably supported by the evidence. See id. at 812-13, 454 N.W.2d
at 48. Here, however, the principal
issue pertains to whether the Board fulfilled its duties under
§ 227.47(1), Stats., to
adequately support its decision with written findings.[2] This issue involves a question of law on
which we owe no deference to the Board.
See Sauk County v. WERC, 165 Wis.2d 406, 413, 477 N.W.2d
267, 270 (1991); but compare Kelley Co. v. Marquardt, 172 Wis.2d
234, 244-45, 493 N.W.2d 68, 73 (1992) (describing how courts may defer to administrative
interpretations of law when the statute pertains to specialized, technical
matters).
In Gilbert v.
Medical Examining Bd., 119 Wis.2d 168, 349 N.W.2d 68 (1984), the
supreme court reviewed the legal standards used to define whether a physician's
choice of treatment constituted “unprofessional conduct” because it posed a
threat to his or her patient or to the public.
See § 448.02(3), Stats.;
Wis. Adm. Code § Med 10.02(2)(h).[3] In its review of the specific finding that
the physician had engaged in “unprofessional conduct,” the court addressed five
separate issues.
The court began by
describing the specific patient's condition and the course of treatment that
the physician provided. See Gilbert,
119 Wis.2d at 175-77, 349 N.W.2d at 70-71.
It then explained that the Board was required in these cases to
establish what the minimum standards of treatment involved. See id. at 191-92, 196, 349
N.W.2d at 78, 80. The court then
described that the Board must show how the physician's treatment decisions
departed from these standards. See id.
at 193, 349 N.W.2d at 79. In addition,
the court discussed why the Board must also demonstrate that the physician's
course of treatment created “risks and negative results which are unacceptable
to other physicians.” See id. Finally, the court noted that the Board must
also explain what “different course of treatment” the physician could have
taken to avoid creating an unreasonable risk for the patient. See id. at 197, 349 N.W.2d at
81.
Accordingly, we conclude
that a reasonable reading of Gilbert is that the supreme court
set out a five-pronged test to guide the Board in its determination of whether
a physician improperly treated a patient.
Again, these five elements are:
(1)
what course of treatment the physician provided;
(2)
what the minimum standards of treatment required;
(3)
how the physician's treatment deviated from the standards;
(4)
how the treatment created an unacceptable level of risk; and
(5)
what course of treatment a minimally competent physician would have
taken.
See
generally id. at 196, 349 N.W.2d at 80. Nonetheless, what concerns us in this case is not only the
Board's substantive conclusion that there was sufficient evidence on these five
elements; we are also concerned with whether the Board's written decision
provides an adequate explanation of why it believed it had sufficient
evidence on all these elements.
We will therefore turn
to the Board's written decision to see what it provides. As we noted above, the Board set out its
conclusion regarding Gimenez's treatment of these patients in an eighteen-page
report. After a brief introduction, the
report contains thirteen pages outlining how Gimenez treated each patient. This section is labeled “Findings of Fact”
and thoroughly details each patient's symptoms and test results. It also describes what Gimenez did to treat
each patient.
The report then sets
forth the Board's “Conclusions of Law.”
In this one-page section, the Board identifies the reasons why it
believed that Gimenez had endangered the health and safety of these
patients. Below we have set out the
specific finding with regard to Gimenez's treatment of Patient I, which is
typical (in form) of the Board's findings in regard to his other three
patients:
With regard to his treatment of Patient
I, Respondent violated sec. MED 10.02(2)(h), Wis. Admin. Code and sec.
448.02(3), Wis. Stats. by delaying an exploratory laparotomy beyond April 24,
1988 in the presence of one or more diagnosable abdominal abscesses. Respondent did not violate any rule or
statute by performing a diverticulectomy during the exploratory laparotomy.
We
will now describe why this explanation is insufficient as a matter of law.
The Board defends these findings with the
claim that its entire eighteen-page written decision, when taken as a whole,
provides enough information to cover each of the five Gilbert
factors. Indeed, even if we could not
reach such a conclusion, the Board contends that it “is not even required to
state detailed evidentiary findings of fact.”
It rests these positions
on a statement from State ex rel. Harris v. Annuity & Pension Bd.,
87 Wis.2d 646, 275 N.W.2d 668 (1979).
There, the court faced a challenge to a pension board which had denied
benefits after finding that the pensioner had died from naturally occurring
cardiovascular illness, not suicide brought on by job-related stress. See id. at 649-50, 275
N.W.2d at 670. More specifically, the
Board cites the finding of that administrative panel which stated only that
“Dr. Harris did not commit suicide by means of an overdose of secobarbital on
December 6, 1965.” Id. at
650, 275 N.W.2d at 670. The Board thus
contends that its findings with regard to Gimenez are “at least as definite and
instructive as those approved by the supreme court in Harris.”
We acknowledge that the
Board's four written findings regarding Gimenez's alleged errors in treatment,
such as the phrase “delaying an exploratory laparotomy beyond April 24, 1988 in
the presence of one or more diagnosable abdominal abscesses,” are remarkably
similar in form to the one which was allegedly “approved” by the Harris
court. Still, we do not accept the
Board's basic premise that the Harris court ever intended to set
out a litmus test which courts should use to measure the quality of
administrative findings concerning any medical matter. Imposition of such a limited requirement
would not coincide with the supreme court's explanation of why the legislature
provided for judicial review of agency decisions.
The Gilbert
court explained that the primary purpose of providing judicial review of
administrative rulings is to prevent the exercise of “arbitrary, unreasonable or
oppressive conduct by the Board.” Gilbert,
119 Wis.2d at 191, 349 N.W.2d at 78.
But to insure against such improper behavior, the reviewing court must
understand what the Board did. As a
result, the administrative rules require the Board to set out its reasoning. See § 227.47, Stats.
In addition, the Gilbert
court recognized that judges have little expertise in medical matters. It therefore cautioned that the Board needs
to carefully outline every aspect of why it reached its stated conclusions. See Gilbert, 119 Wis.2d at 205,
349 N.W.2d at 84. Thus, the Board's
present position, that there exists some minimum acceptable standard of stating
findings of fact, would not serve the policy goal of protecting against irrational
factfinding because the appropriate detail of written discourse depends upon
the issues involved in each case.
While in Harris
the court held that the pension board's cryptic finding was sufficient, the
board in that case only had to address one narrow issue: was the cause of death natural
cardiovascular disease or was it work-related stress? See Harris, 87 Wis.2d at 649, 275 N.W.2d at
670. But in this case, as in all cases
involving allegations of mistreatment, the Board needs to cover five different
elements. Its decision needs to explain
the very complex issue of why Gimenez misinterpreted the information he
received about his patients and why he made an error in judgment when he
selected a course of treatment. While
the Board's terse written findings, which are full of technical jargon, might
reveal everything necessary to a medical expert, they will not survive judicial
review because the courts are not equipped with the expertise to adequately
interpret them.
In sum, we hold that the
Board must provide a plain and thorough written decision that summarizes its
findings. This decision must separately
identify the five Gilbert elements and discuss the evidence which
relates to each element. The decision
must also provide details of why the evidence supports the Board's findings.
Having concluded that
the Board's “Conclusions of Law” are inadequate, we now turn to the appropriate
remedy. Again, the Board seems to
suggest that we can uphold its decision in this specific case because we should
be able to discern a sufficient explanation of the Gilbert
factors if we review its eighteen-page decision in its entirety. We disagree.
The first section of the
complete report does contain a good explanation of exactly how Gimenez treated
these patients. Thus, the Board's decision
satisfies the first Gilbert requirement. Moreover, some of the Board's other findings
could be construed as meeting the fifth requirement, which requires the Board
to describe the better course of treatment.
For instance, the statement that Gimenez erred when he “administer[ed]
heparin to [Patient VI] without having thoroughly investigated the nature and
extent of bleeding in her gastroninestinal tract” suggests that Gimenez would
have acted correctly if he would have first investigated whether the patient
was bleeding before he administered Heparin.
Nonetheless, the Board's written explanation still leaves this court to
“draw inferences from the record as to how a minimally competent physician
would have proceeded.” Cf. Gilbert,
119 Wis.2d at 205, 349 N.W.2d at 84. As
judges, not experts voiced in medicine, we cannot confidently draw these
necessary inferences and fill in the gaps that exist in the Board's decision.
While we are unable to
uphold the Board's decision in its current form, we nonetheless disagree with
the circuit court's conclusion that the Board's failure to fully document its
reasoning warrants dismissal of the entire investigation. Instead, we will remand this case to the
circuit court with directions that it further remand the case to the Board and
direct the Board to reconsider the charges against Gimenez in light of this
opinion.
We base our choice of
remedy on precedent which favors remand over dismissal. First, in Heine v. Chiropractic
Examining Bd., 167 Wis.2d 187, 192-93, 481 N.W.2d 638, 641 (Ct. App.
1992), this court held that the Chiropractic Examining Board did not provide a
sufficient explanation of why it departed from the hearing examiner's
disciplinary recommendations. In addition,
we also held that the proper remedy was to remand the matter to the board and
give it an opportunity to better explain why it deviated. Id. at 194, 481 N.W.2d at
642. We reasoned that outright reversal
of the board and reinstatement of the hearing examiner's findings was
inappropriate in light of § 227.57(4), Stats.,
as this section provides that remand to the agency is appropriate when the
agency makes a procedural error.
Furthermore, we are
equally aware of the supreme court's command in Wurtz v. Fleischman,
97 Wis.2d 100, 108, 293 N.W.2d 155, 159 (1980), that the court of appeals
should not make its own findings. In
that case, the supreme court set out a rule to govern those situations when
this court is confronted with inadequate findings made by the trial court. The supreme court instructed the court of
appeals that it should not simply apply the existing facts to the appropriate
standard. In those situations, the
supreme court held that such matters should be remanded to the trial court for
reconsideration. See id. Although the Wurtz decision
specifically dealt with the inadequacy of a trial court record, the principle
also applies to the situation when this court (or a circuit court) faces an
inadequate administrative record.
Our decision to remand
this case dictates that we not address the parties' arguments about the
sufficiency of the evidence placed before the Board. Nor will we address Gimenez's complaints about the sanction the
Board imposed against him. After the
Board reconsiders the case, it may decide that Gimenez did not act in an
unprofessional manner with respect to some, or possibly all, of his patients.
In the interests of
efficient judicial administration, however, we will briefly address one issue
discussed by the parties in their respective arguments about the sufficiency of
the evidence. Gimenez's principal
complaint on this issue is that the Board did not have “expert testimony which unequivocally
indicat[ed] the deviation below minimum standards and the causation of an
unacceptable risk.” According to
Gimenez, the Gilbert decision requires the Board to meet this
“unequivocal” standard.
After reviewing
Gimenez's arguments, we are concerned that he may be operating under a
misconception regarding the amount and quality of proof that Gilbert
actually requires. Of course, the court
did use the term “unequivocally” to describe the quality of the required
proof. Gilbert, 119
Wis.2d at 197, 349 N.W.2d at 81. This
term, nonetheless, must be read in context.
When the Gilbert
court examined the evidence placed before that board, it acknowledged that it
was derived from an expert who testified to a “reasonable degree of medical
certainty.” See id. at
200, 349 N.W.2d at 82. But if the term
“unequivocal” is taken literally, as Gimenez seems to suggest it should be,
then the Board could never reach a decision because all the medical testimony
it receives is only conclusive to a “reasonable degree of medical certainty.”
Thus, we emphasize that
the supreme court's use of the term “unequivocal” means only that the Board
must rely on evidence from a qualified medical expert who is able to testify on
the factor at issue. See id. Since the evidence that the Board uses in
its decision-making will necessarily be curtailed by the general inability of
experts to testify with any greater conviction than beyond a “reasonable degree
of medical certainty,” the Board may rely on such testing as a basis for its
findings so long as the board finds it credible.
By the Court.—Order
affirmed in part; reversed in part and cause remanded with directions.
[2] Until 1977, the statutes specifically mandated that the Board follow the rules of administrative procedure outlined in ch. 227, Stats. See § 448.02(3), Stats., 1975. In 1977, however, the legislature amended those requirements and required that the Board follow the procedural rules established by the Department of Regulation and Licensing. See Laws of 1977, ch. 418, § 847. But while the statutes establishing the Board's authority no longer specify that the Board follow the general rules of administrative procedure, the case law has still harmonized the procedures that are mandated to the Board under § 448.02 with the general rules of administrative law. See Sweet v. Medical Examining Bd., 147 Wis.2d 539, 545, 433 N.W.2d 614, 616 (Ct. App. 1988). We therefore conclude that the Board must follow the § 227.47, Stats., requirement to provide adequate written findings.
[3] The supreme court specifically examined § 448.18(1)(g), Stats., 1973, and Wis. Adm. Code § Med 16.02(1)(g), 1975, which are the predecessors to the current statute and rule under which Gimenez has been charged. See Gilbert v. Medical Examining Bd., 119 Wis.2d 168, 172, 349 N.W.2d 68, 69 (1984). Nonetheless, the Gilbert court noted that the statute and rule before it were scheduled for amendment and suggested that the interpretation it set forth would apply as well to the amended statute and rule. See id. at 172 n.1, 193-94 n.7, 349 N.W.2d at 69, 79.