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Kirbens v. Wyoming State Board of Medicine12/6/1999
district court. The burden is assigned to the party challenging the sufficiency of the evidence to demonstrate that the Board's decision is not supported by substantial evidence. Devous v. Wyoming State Bd. of Medical Examiners, 845 P.2d 408, 414 (Wyo. 1993) (citations omitted).
The Board considered expert testimony, CT scans, medical records, and the April 1997 Assessment Report of the Colorado Personalized Education for Physicians Program in its review of the treatment provided to three patients. In its review, the experts testified that the records showed that Kirbens failed to properly document his diagnosis of and medical justification for the surgeries. Each patient=s medical records and CT scans did not indicate sinus disease to the extent required which would justify surgery. The experts offered opinions that the CT scans and medical records indicated deficient medical decision making. One expert testified that of ten patients who had come to see him for a second opinion after Kirbens had recommended they undergo surgery, only one demonstrated a physical condition warranting surgery. The third expert who reviewed the same materials expressed the opinion that Kirbens had not performed unnecessary surgeries and that his conduct and medical judgment were within the applicable standard of care. That same expert, however, described the medical records as Asketchy@ and Ainadequate@ and he was unable to tell from the records what Kirbens= Athought processes were,@ Kirbens= Ajudgment was not reflected in the notes;@ and Kirbens Agoes straight to a Conclusion without the supportive history.@ From the medical records alone, the expert stated that it would be difficult to justify the surgery performed on one patient. From these facts, the Board concluded there was clear and convincing evidence that Kirbens= conduct exhibited willful and consistent utilization of medical services that were inappropriate and unnecessary. We find the Board=s Conclusion is justified from the underlying facts and affirm the decision that Kirbens violated this portion of the statute.
Confidentiality
In his final contention, Kirbens argues that the Board improperly disclosed the findings of fact and Conclusions of law along with the final order in violation of Wyo. Stat. Ann. ' 33- 26-408(c). The Board contends that these three components comprise an integrated document that is considered a final order and required to be published under its rules.
Wyo. Stat. Ann. ' 33-26-408(c) (LEXIS 1999) states:
All board records except final orders are not subject to public disclosure or discovery and are not admissible in any nonboard proceeding except when necessary for further board action or upon judicial review of a board order.
The Act does not define the statutory terms ABoard records@ or Afinal orders.@ In another section of the Act, the Board is instructed to enter its order and findings pursuant to the Wyoming Administrative Procedure Act when it refuses to renew or reinstate, revokes, restricts or suspends a license. Wyo. Stat. Ann. ' 33-26-405(a) (LEXIS 1999). Similarly, the section governing reinstatement of licenses directs the Board to issue Aspecific findings of facts, Conclusions of law and a final order.@ Wyo. Stat. Ann. ' 33-26-406(d) (LEXIS 1999). The intent apparent from the various sections of the Act supports the Board=s contention that it may consider the findings of fact and Conclusions of law as well as an order of the action taken in a particular matter to be the final order. Patient confidentiality was appropriately protected within these documents, and we find the Board did not act in violation of the statute by publishing its findings of facts and Con
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