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Kirbens v. Wyoming State Board of Medicine12/6/1999
W.R.A.P. 12.09(b) Certification from the District Court of Laramie County Honorable Edward L. Grant, Judge
This appeal presents novel issues as to whether state and federal statutes offer protection to an impaired physician facing disciplinary action for misconduct that he claims resulted from disability. The Wyoming Board of Medicine (Board) revoked Appellant Drew J. Kirbens= medical license following a contested case hearing. Although he admits that he poses a significant threat to the safety of the public, he appeals the decision to revoke, asserting that his disability entitled him to voluntarily relinquish his license and seek treatment in an appropriate program.
Determining that neither state nor federal statute protects Kirbens from disciplinary action upon an admission that he poses a significant threat to the safety of the public, we affirm the decision of the Board.
ISSUES
Kirbens presents the following issues for our review:
1. Does the plain meaning of W.S. ' 33-26-404(a) and (b) compel the Board to accept the license of a medical doctor who voluntarily relinquishes it and not engage in a punitive course of action?
2. Does the Board=s action in requiring a contested hearing and levying penalties violate the Americans with Disabilities Act?
3. In any event, is the Board=s finding of willfulness supported by the record?
4. Did the Board violate its own rules and regulations by publicizing its Findings and Conclusions?
The Board rephrases the issues as:
1. Whether the Wyoming Board of Medicine is required to accept the voluntary relinquishment of a license when the licensee is the subject of a pending disciplinary proceeding.
2. Whether the disciplinary proceeding before the Wyoming Board of Medicine against Appellant violated the Americans with Disabilities Act.
3. Whether the Findings of Fact, Conclusions of Law and Order issued by the Wyoming Board of Medicine in this case are supported by substantial evidence found in the record of the agency proceeding.
4. Whether the Wyoming Board of Medicine violated its own rules by publicly disclosing the Findings of Fact, Conclusions of Law and Order issued by it in this case.
FACTS
As Kirbens was a licensed Wyoming medical doctor, his license was subject to the provisions of the Wyoming Medical Practice Act and the Board=s Rules and Procedure. On January 2, 1997, representatives of the Board filed a first complaint against Kirbens, notifying him that it would hold a contested case hearing to consider disciplinary action. As grounds for disciplinary action, the complaint asserted that Kirbens= negligence and malpractice violated statutory prohibitions against willful and consistent utilization of medical service or treatment which was inappropriate or unnecessary pursuant to Wyo. Stat. Ann. ' 33-26-402(a)(xxii) and Wyo. Stat. Ann. ' 33-26-402(a)(xviii). An amended complaint was then filed on February 27, 1997, asserting that Ivinson Memorial Hospital in Laramie, Wyoming, had taken an adverse action against Kirbens= privileges as of January 14, 1997, by suspending him for an indefinite period, which is also statutory grounds for discipline, pursuant to Wyo. Stat. Ann. ' 33-26-402(a)(xxvi). A second amended complaint was filed asserting other violations of the Act arising out of a surgery, on or about June 9, 1997, at Memorial Hospital of Converse County, in which a patient subsequently died.
In July of 1997, Kirbens agreed to temporary restrictions of his practice, including a prohibition from surgical or invasive procedures. A third amende
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