Opinion
No. WD 57880
Filed: January 30, 2001
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, THE HONORABLE BYRON L. KINDER, JUDGE
Lori Levine, Jefferson City, MO for Appellant.
Glenn Edward Bradford, Kansas City, MO for Respondent.
Before James M. Smart, Jr., Judge, and Thomas H. Newton, Judge
The medical license of Grant Bever, M.D., (Bever) was revoked by the State Board of Registration for the Healing Arts (Board) pursuant to § 334.100, RSMo 1994. After reversal of the Board's decision by the Cole County Circuit Court, the Board has appealed to this court. We review the decision of the Board and not that of the Circuit Court. Morton v. Brenner, 842 S.W.2d 538, 540 (Mo.banc 1992). By complaint filed with the Administrative Hearing Commission (AHC) pursuant to § 334.100.2, the Board alleged eight counts disciplining Bever's license. The Board subsequently dismissed Count II of its second amended complaint. The AHC held an evidentiary hearing and found cause for discipline on five of the remaining counts. The AHC issued findings of fact and conclusions of law but made no recommendation as to discipline. The Board then held a hearing under the authority of § 621.110 and § 334.100.4 to determine the appropriate discipline.
All statutory references are to RSMo 1994, unless otherwise indicated. This section was amended in respect not applicable here in 1997.
The parties have provided a Record on Appeal consisting of 17 volumes and over 3000 pages. The transcript alone covers over 2000 pages but contains no sub-index by which to identify particular witnesses or exhibits. Although technically in compliance with the rules, in future cases it would be of great help to the court to provide a more detailed index.
Chapter 334 provides a comprehensive scheme for the granting and regulation of the professional licenses of physicians and surgeons. The disciplinary provisions are intended for the protection of the public health and not the punishment of the licensee's conduct. Younge v. State Bd. of Registration for Healing Arts, 451 S.W.2d 346, 349 (Mo. 1969). The AHC found cause for discipline based upon the following grounds: (1) disciplinary action taken by St. Joseph's Hospital against Bever's staff privileges under § 334.100.2(4)(g) and (2) various grounds under § 334.100.2(5) involving the treatment of certain patients. Bever raises six points on appeal. Two points deal with the basis found for discipline by the Board. Two more deal with the procedure followed by the Board during its § 621.110 hearing to consider appropriate discipline. The final two points deal with the appropriateness of the discipline imposed. We affirm in part and reverse in part.
STANDARD OF REVIEW
The scope of judicial review is whether the action of the Board: (1) is in violation of constitutional provisions, (2) exceeds the statutory authority or jurisdiction of the agency, (3) is unsupported by competent and substantial evidence upon the whole record, (4) is, for any other reason, unauthorized by law, (5) is made upon unlawful procedure or without a fair trial, (6) is arbitrary, capricious or unreasonable, or (7) involves an abuse of discretion. § 536.140.2. The record is reviewed in the light most favorable to the AHC decision. State Bd. of Registration for the Healing Arts v. Finch, 514 S.W.2d 608, 616 (Mo.App. 1974). Great deference is given to findings of fact and the burden is on the opposing party to overcome the presumption that the AHC's decision is valid . Hernandez v. State Board of Registration for Healing Arts, 936 S.W.2d 894, 900 (Mo.App. 1997). Questions of law are given independent review by the court. Psychcare Mgmt. v. Dept. of Social Serv., 980 S.W.2d 311, 312 (Mo.banc 1998). The primary purpose of statutes authorizing physician license discipline is to safeguard the public and not to penalize the physician. Missouri Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo.App. 1991). In a disciplinary action the Board has the burden of proof. Missouri Real Estate Comm'n v. Berger, 764 S.W.2d 706, 711 (Mo.App. 1989).
FACTS
Dr. Grant Bever is a board certified OB-GYN who practiced obstetrics at a number of hospitals around the Kansas City metropolitan area. In 1990, Bever's privileges were suspended by Baptist Medical Center. The hospital suspended his privileges under an emergency provision after what the hospital considered the mistreatment of three patients. The suspension was only to be in effect until a formal meeting of the Executive Committee. Bever resigned his privileges before the Executive Committee had a chance to meet.
On September 3, 1992, St. Joseph Health Center became the second hospital to suspend Bever's medical staff privileges. St. Joseph's action was based upon Bever's medical treatment of a number of patients, the loss of medical privileges at Baptist Medical Center, and misleading information provided to the hospital by Bever. St. Joseph's notified him that its Executive Committee had recommended a professional review hearing be conducted by the hospital board. Bever filed a lawsuit against the hospital, requesting an injunction to prevent the hearing. The parties came to a settlement on December 30, 1993, before trial. By the terms of the settlement, Bever agreed to resign and to withdraw his pending application for reappointment to the staff of St. Joseph's. He also agreed not to reapply for admission to the medical staff for 5 years. He further agreed to waive all further appellate rights to a hearing under the St. Joseph bylaws. The hospital agreed not to hold the disciplinary hearing, which was rendered unnecessary by Bever's resignation.
The Board's complaint filed with the AHC concerned only three specific patients. Linda was an obstetrics patient of Bever in her second pregnancy. She was scheduled for a cesarean section, as with her first child. The AHC found that Bever overestimated the term of her pregnancy and, as a result, the baby was surgically delivered prematurely. The child suffered respiratory distress syndrome and was transferred to Children's Mercy Hospital.
We do not use the last names of the patients.
Robin was also an obstetrics patient of Bever. On February 10, 1989, she was seen for experiencing mild contractions every four minutes. Bever discharged her and she returned home. The AHC found that she was not appropriately monitored. On February 12, 1989, her son was born prematurely at twenty-nine weeks and died six days later.
Tina was a patient of Bever in March 1993, when her child was delivered by forceps. She sustained cervical lacerations, vaginal lacerations, and a fourth degree peritoneal laceration. Although Bever attempted repair them, an hour later Tina was found to be bleeding profusely. Two other doctors found her to be clotting and bleeding at the same time and suggested her transfer to a larger hospital. It was nearly eight hours before she was taken to KU Medical Center. There, surgeons discovered unrepaired lacerations. Tina received 39 units of blood. She suffered from pulmonary edema and adult onset respiratory distress syndrome. The AHC found that Bever misrepresented the possibility of an earlier transfer to St. Luke's Hospital and those delays in transferring Tina led to many of her complications. The AHC also found that Bever failed to discover and treat several lacerations.
The Patient Treatment Claims
Some of the grounds set for suspension or revocation of a physician's license are set forth in § 334.100.2(5):
Any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter.
For the purposes of repeated negligence, a single act of negligence is not sufficient for disciplinary action under this section. § 334.100. The term "incompetence" is not defined by the statute but has been defined in other licensure contexts as the lack of ability or disposition to use a professional ability. Forbes v. Missouri Real Estate Comm'n, 798 S.W.2d 227, 230 (Mo.App. 1990). The term "gross negligence" means an act or course of conduct which demonstrates a conscious indifference to a professional duty. Duncan v. Missouri Bd. for Architects, Prof'l. Eng'rs and Land Surveyors, 744 S.W.2d 524, 533 (Mo.App. 1988). Harmful means "of a kind likely to be damaging: INJURIOUS[.]" Merriam-Webster's Collegiate Dictionary 530 (10th ed. 1993). "Dangerous" means "able or likely to inflict injury or harm[.]" Id. at 292.
The AHC Findings
Linda's Treatment. The AHC found that Bever failed to perform necessary tests, did not perform tests for an adequate period of time, and determined an incorrect delivery date. The AHC found that he was incompetent and negligent in both of these respects. The Commission also found that his conduct in performing an elective C-Section without properly determining the correct gestational age could also have been harmful to her baby.
Robin's Treatment. The Commission found that Bever was negligent and engaged in conduct that might have harmed the patient when she was not appropriately monitored and discharged from the hospital when she was having contractions four minutes apart.
Tina's Treatment. The Commission found that Bever's delay in transferring Tina was negligent and his acts that caused that the delay constituted conduct that might be harmful to a patient. The Commission also found that Bever's conduct in causing the laceration and failing to notice it and repair it was negligent, grossly negligent, incompetent, and was conduct that might be harmful to a patient.
Repeated Negligence. Finally, the Commission found that, in combination, Bever's treatment of Linda and Tina constituted "repeated negligence," that is "the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant's or licensee's profession."
The Commission did not include in this ground the negligence it found in Robin's treatment. No explanation is given for this omission.
Expert Evidence
Dr. James Robert Green testified as an expert witness before the Commission. He had been an assistant professor of obstetrics and gynecology at the University of Missouri School of Medicine since 1989. He was originally asked by St. Joseph's Hospital in 1992 to review a number of patient cases looking, in part, specifically at "standard-of-care medical issues." He was asked to examine Bever's case for "poor judgment, knowledge or skill" in the following areas: (1) assessment of fetal gestational age; (2) inducing labor in pre-term pregnancies; (3) performance of scheduled (elective) cesarean sections in pre-term pregnancies; (4) management of the third stage of labor; (5) fetal monitoring, recognizing and acting on fetal distress; (6) appropriate action to assist nursing staff in prolapsed cord emergency; (7) having an unacceptable number of infants requiring transfer to neonatal intensive care unit or transferred to another hospital; (8) diagnosis and treatment of preeclampsia; (9) performing and interpreting antepartum testing; (10) assessment and treatment of premature labor; and (11) overly aggressive vaginal examinations, causing pain to the patient. It was this review that led to the initiation of an action by St. Joseph's Hospital to revoke Bever's privileges.
Dr. Green was later asked by the Board to review a number of patient records, including those that were made the basis of separate counts seeking discipline of Bever as described above. He opined that Bever made an inadequate assessment of gestational age in several patients, including Linda; in a few others, he did not reach such a conclusion. Dr. Green identified several written opinions of the American College of Obstetrics and Gynecology (ACOG). He described these as practice guidelines recognized as having some authority for how certain things should be done in the profession, based on review of current literature and scientific knowledge by ACOG. Dr. Green further testified that the fetal gestational age determination did not meet any of the "recognized criteria for elective delivery." In his opinion, this indicated a violation of the standard of care in Linda's case. With regard to the other issues that St. Joseph's asked Green to examine, in some instances, he found no deviations from the standard of care, and with regard to other issues, he found deviations in some patient's care and none in the care of others.
The first was entitled "Assessment of Fetal Maturity Prior to Repeat Cesarean Section or Elective Induction of Labor" dated January 1990; the second replaced the first and was dated September 1991 and was titled "Fetal Maturity Assessment Prior to Elective Repeat Cesarean Delivery".
Dr. Green expressed the opinion that Bever deviated from the standard of care in several respects in Robin and Tina's care. He believed that Bever failed to properly assess, examine and observe Robin and properly treat her premature labor. Regarding Tina, he felt that the failure to detect and repair vaginal lacerations, and the delays in transferring her to another hospital, fell below the standard.
POINTS ON APPEAL POINT I Expert Testimony Regarding the Standard of Care
Bever's first point on appeal is that the Board failed to meet its burden of proof because the Board's expert failed to establish that Bever's actions deviated from that degree of skill and learning ordinarily used by members of the medical profession. In a hearing before a licensing Board, the burden is on the Board to prove by the preponderance of the evidence that the licensee's actions violated § 334.100.2. Berger, 764 S.W.2d at 711. If the Board fails to do this, the Board has not proved its case by competent and substantial evidence.
The Commission found negligence in several counts and based a determination for discipline on repeated negligence. The Board does not disagree that the standard of care is as defined as in MAI 11.06 in medical malpractice cases: "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of the defendant's profession." Bever contends that the AHC lacked competent and substantial evidence because the Board's expert never defined what he meant by the term "standard of care."
The Board first counters that Bever has waived this issue because he failed to object to Green's testimony at the hearing. Bever responds that his objection is not to the form of Green's testimony but rather addresses whether that testimony constitutes sufficient evidence upon which to base a finding of negligence or repeated negligence. Where the objection is not to the admissibility of expert testimony but rather to its legal sufficiency, no objection at the time of testimony is required. Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 616 (Mo.banc 1995). Bever was not required to object to preserve this issue.
Bever contends that, under the principles articulated in Ladish v. Gordon, 879 S.W.2d 623 (Mo.App. 1994), Green's testimony failed to support the Board's finding. Ladish was a medical malpractice case where the plaintiff's expert testified that the doctor's act fell below the "standard of care" but failed to define, in legal terms, what he meant. In other words, the expert failed to demonstrate that the standard he was applying to evaluate the doctor's care was "that degree of skill and learning ordinarily used under the same or similar circumstances" (the legal standard for negligence), as opposed to the personal standards of the expert or of only some members of the medical profession. Id. at 635. Ladish clearly points out the danger of vague or indefinite testimony:
If attorneys and expert witnesses are allowed to become sloppy in the use of terms such as 'accepted standards' and 'standards of care' without specifying at some point in the witness' testimony the meaning of those terms, experts will inevitably tend to rely upon their own views of acceptable practice rather than applying the objective legal standard.
Id. at 634-35. Compliance with this requirement should not be overly difficult if the attorney by question, or the witness by answer, indicates that every time the term "standard of care" is used, it is in the legal sense defined in MAI 11.06 or similarly in § 334.100.2(5).
The Board argues that the AHC used the proper legal standard as shown in its findings and conclusions. That argument misses the mark. The AHC must make its decision based on the evidence before it, and in those cases where expert testimony is required, base it on competent evidence that satisfies the legal standard for defining negligence. Likewise, we reject the Board's argument that the AHC somehow has special expertise in medical matters of this sort and does not need the definition by the expert of his standard of evaluation. If such were true, then there would be no need for expert testimony at all, a contention the Board obviously does not make.
As in civil cases, there may be times when expert testimony is not required. State v. Clark, 713 S.W.2d 621 (Mo.App. 1986) and Perez v. Bd. of Reg. For Healing Arts, 803 S.W.2d 160 (Mo.App. 1991).
Nevertheless, the Ladish standard can also be met if other evidence, including the defendant's, establishes that the properly defined standard of care imposes a particular duty. Id. at 635. Then, the only issue remaining is a whether the particular doctor breached that duty by his act or omission. Bever presented no expert testimony beyond his own. Upon cross-examination, Bever was asked to define what he meant by the term "standard of care" as used in his testimony. He testified that the standard of care is "that degree of care that should be rendered in a given situation to a patient with a given set of circumstances." He acknowledged that definition to be widely accepted in the medical profession. Although not identical in language, we believe that definition substantially mirrors the legal definition of negligence in § 334.100(5). Ladish acknowledges that the legal standard need not be recited in ritualistic fashion. Id. at 634.
Bever's mere definition alone does not satisfy the deficiency in the Board's direct expert witness evidence. It still remains to be established what the standard is as to any particular medical issue and whether it was breached. Again, Bever's cross-examination supplies at least some of the missing testimony as to one of the Board's theories of negligence. Bever admitted that certain alternative guidelines for determination and confirmation of gestational age prior to elective cesarean delivery or early labor induction were the standard of care at the time of his treatment of the patients in question. Green testified that Bever deviated from this standard in Linda's treatment. We thus find that there was competent and substantial evidence to support the Board's finding of negligence in the treatment of Linda.
There was much debate and discussion in the record about changes from 1989 to 1990 and subsequently 1991 guidelines published by ACOG. Although Bever argued about the order of priority of some of the measurement criteria, he acknowledged that a number of the criteria testified to by Dr. Green were the standard of care in 1989 as well. As such, the discrepancies in wording and ordering of the ACOG bulletins in the various years goes to the weight of the evidence and not its ability to serve as competent and substantial evidence to support the AHC decision.
The Board's finding of negligence for the delay in transferring Tina to another hospital is a closer issue. Bever readily acknowledged a duty to either transfer her to another hospital for surgery or do the surgery himself at Cass County Hospital. He acknowledged that, to do the operation, there he needed an anesthesiologist and an assistant surgeon, neither of whom were on duty but had to be called in. He admitted that Tina had exhausted the hospital's blood supply and more blood would have to be obtained, probably by highway patrol as courier. There was highly conflicting evidence from Bever, the CRNA, the anesthesiologist, and the assistant surgeon as to what happened that day. It is reasonably inferable from the evidence that Bever knew of the need for surgery and the blood shortage in the very early afternoon. He claimed that he left the hospital because all of the operating rooms were busy. He returned about 2:00 p.m. and said he intended to have her stabilized for surgery by 4:30 p.m. By that time, however, they still did not have the blood. He testified that there were delays in contacting a general surgeon, who then could not arrive until 5:30 p.m. The anesthesiologist had left and had to be called back. Before 4:30 p.m., Bever said he had made arrangements for a transfer to St. Luke's if necessary. After the anesthesiologist had left, he could not reach his contact at St. Luke's and a new contact refused to accept the transfer. In the meantime, the surgeon had left. Not until 7:29 p.m. did Bever finally make arrangements to transfer the patient to K.U. Medical Center.
In contrast, the CRNA testified that both operating rooms were available all day; she was not even called about a surgery on Tina until 4:45 p.m. When she found out the condition of the patient, she knew she had to call a back-up anesthesiologist for assistance. She testified that both the assistant surgeon and the anesthesiologist told Bever that the patient's condition was so critical that she needed to be transferred to a bigger hospital. She said that Bever agreed, went into another room, and came back saying St. Luke's had agreed to transfer. It was only then, according to her, that the other two doctors left. Fifteen or twenty minutes later, Bever told her that St. Luke's refused to accept transfer by ground, and air ambulance was not available because of weather. Bever said he wanted to do the surgery with the assistance of a local family practice doctor and the CRNA. She refused because they still did not have any blood products. She told the family practice doctor about the situation and he immediately arranged the transfer to K.U.
The AHC found that Bever offered no reasonable explanations and characterized them as "excuses" for a three-hour delay in arranging transfer after he made the decision that surgery was necessary. The patient's medical condition and needs were agreed to by all of the medical professionals present. We believe that the duty to promptly operate or transfer to another hospital if unable to do so was admitted. Green testified that Bever deviated from the standard of care regarding the delay. We do not believe that further expert testimony was necessary to establish that Bever acted unreasonably and improperly in delaying Tina's transfer. We therefore affirm the finding of cause to discipline for negligence in the delay of Tina's transfer.
No other testimony in the record, however (including that of Bever), supplies the missing criteria required by Ladish for the findings of negligence on other grounds. The AHC's findings of negligence in the treatment of these and other patients on theories other than the determination of gestational age and the delay in transfer are therefore not supported by competent and substantial evidence on the record as a whole.
Section 334.100(5) defines "repeated negligence" as negligence on more than one occasion. In Count VIII, the AHC found cause for discipline based upon repeated negligence. The sole basis for Bever's objection to this finding is his claim that there was not sufficient expert testimony to support even one finding of negligence. As discussed above, the record supports two findings of negligence. Discipline based on Count VIII is therefore supported by the evidence and we affirm the finding of cause for negligence based on repeated negligence.
We observe that with regard to the determination of gestational age, Green also testified that Bever deviated from the standard of care in a number of other patient records that he reviewed but that were not the subject of specific counts in the Board's petition. This testimony would have been legally sufficient for the same reasons discussed above regarding Linda. The AHC did not, however, base any of its findings of negligence, repeated negligence or incompetence upon the treatment provided any of these other patients. Nor does the Board argue that the Board's findings are not limited to the patients that are the subject of specific counts. We, therefore, do not consider such evidence that was presented by Dr. Green.
Other Grounds for Discipline Involving Patient Care
The Board also argues that the AHC found cause for discipline under Count IV (Linda's treatment) for incompetence and conduct that might be harmful to a patient; Count V (Robin's treatment) for conduct that might be harmful to a patient; Count VI (Tina's treatment) for incompetence and conduct that might be harmful to a patient regarding the lacerations and conduct that might be harmful to a patient in delaying her transfer to another hospital.
Incompetence as a Basis for Discipline
Chapter 334 provides no definition of incompetence. The parties point to no cases, nor have we discovered any, defining the term in the context of a licensure proceeding against a physician. The AHC defined incompetence as "a general lack of, or a general lack of disposition to use, a professional ability." Although the term is used in other states' licensing schemes it seems seldom defined in the cases. Medical Incompetence-Discipline, 28 A.L.R.3d 487. In Board of Dental Examiners v. Brown, 448 A.2d 881, 883 (Me. 1982) the Maine Supreme Court said that incompetence "connotes a comparison with due consideration of the state of the art, between the performance of a dentist who is the subject of discipline and the minimally acceptable level of performance, in similar circumstances, by American dentists generally. (citations omitted). Unlike the comparison that is made in an action for malpractice, the comparison is made for the purpose of determining defendant's professional competence and skill in general, not merely his competence in the treatment of one patient." (emphasis added). The Maine court went on to apply this definition and found incompetence based on acts of negligence with five patients that the court characterized as a pattern. Id. at 885.
The AHC took the definition from a real estate agent licensure case. Forbes Missouri Real Estate Comm'n, 798 S.W.2d 227, 230 (Mo.App. 1990).
The Maine court is not the only one to equate a repetitive pattern of negligence (often characterized as malpractice) with incompetence. See, eg., Kansas State Board of Healing Arts v. Foote, 436 P.2d 828 (Kan. 1968).
It seems to be Bever's argument that a finding of incompetence cannot be made in the absence of a supportable finding of negligence. The gravamen of this theory is that incompetence under § 334.100(5) references only a different degree of negligence. We disagree. Section 334.100(5) already describes three degrees of negligence: simple (one act), gross, and repeated. Incompetence in that sense could only be more than repeated negligence (two or more). But how much more? The very term itself suggests something different in kind than mere repeated deviations from the standard of care. Although proof of repetitive acts of negligence might also support a finding of incompetence, they need not necessarily. We believe that the definition used by the AHC was proper. The Board did prove two acts of negligence. Just that proof, and particularly on different theories of negligence, is not sufficient, without more, to prove incompetence. Nevertheless, we must still consider whether there is otherwise substantial competent evidence that Bever either lacked a professional ability or a general disposition to use that ability. Thus, we first examine the record to see if there was evidence that Bever lacked certain professional skills or abilities in contrast to failing to properly use those skills with a particular patient. We find no such evidence in the record. There remains a final inquiry based on the definition used by the AHC. Is there evidence that the doctor, although possessed of necessary skills and abilities, simply lacked the disposition or will to use those skills? Again we find no such evidence in the record. We, therefore, find that the record does not support the findings of the AHC that Bever demonstrated incompetence.
We doubt that many would believe that proof of two or more successful civil malpractice suits would be tantamount to incompetence.
We do not believe that the Supreme Court's description of the ground and procedure under § 334.100.2(25)(e) as involving "general medical incompetency" forecloses use of this definition in the context of § 334.100.2(5). Artman v. State Board of Registration, 918 S.W.2d 247 (Mo.banc 1996).
See fn. 7 supra.
Conduct Harmful or Dangerous to a Patient
Section 334.100.2(5) also provides for discipline of a physician for "[a]ny conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public." The AHC found cause for this ground under Count IV (Linda's treatment) for performing an elective cesarean section without properly determining the correct gestational age; Count V (Robin's treatment) for discharging her without a proper assessment of her labor status; Count VI (Tina's treatment) both for (a) delay in transferring her to another hospital, and (b) causing and failing to detect and repair vaginal lacerations. The AHC used dictionary definitions of the terms "harmful" and "dangerous." The parties do not quarrel with the meaning given those terms. The AHC did not, however, define or further describe what type of "conduct" or "practice" it believed necessary under this disciplinary ground. We have not found any reported decision construing this ground for discipline under Chapter 334.
Dr. Bever's argument again assumes that the predicate conduct under this ground must be negligence, requiring proper testimony as to the standard of care. Because we have already found that there was sufficient evidence of negligence as to Linda and Tina's care, there is also sufficient evidence for the AHC to have found the negligence to be conduct harmful or dangerous, and we affirm the findings on this ground for Count IV.
As to Counts V and VI, the Board again (as with the issue of incompetency) argues that there is no case law that requires an "objective legal standard of care" for proof of conduct harmful to a patient. The Board argues that "[t]he law has treated 'negligence' and 'conduct which is or might be harmful to the mental or physical health of a patient or the public' as different and discrete concepts requiring different proof." But the Board provides no citation of authority for that proposition, other than the statute itself. Nevertheless, we do, in interpreting a statute, absent a statutory definition, give words their plain and ordinary meaning. Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496, 498 (Mo.banc 1999). Furthermore, we give effect, if possible, to every word and phrase. Lora v. Dir. of Revenue, 618 S.W.2d 630, 633 (Mo. 1981). By applying these standards, it seems clear that the phrase "any conduct or practice which is or might be harmful to . . . a patient or the public" clearly indicates that this ground is intended to be broader than the duty to exercise due care in the treatment of a particular patient. (Emphasis added). Likewise, we do not think it reasonable to conclude, in the individual patient context, that the phrase is merely a synonym for negligence, gross negligence, repeated negligence, or incompetence, all being other grounds in § 334.100.2(5). All of these latter described grounds may also be conduct harmful to a patient. But not all harmful conduct need first rise to the level of negligence. The use of the term "practice" connotes something broader. Practice is defined as "a frequent or usual action; habit; usage . . . a usual method, custom, convention. . . ." Webster's Unabridged Dictionary. Black's Law Dictionary (6th ed) similarly defines practice as: "repeated or customary action; habitual performance; a succession of acts of a similar kind." We think it clear that the term connotes an improper conduct lesser in kind or in degree, or both, than ordinary negligence.
To withdraw or restrict a professional license without some degree of impropriety such as, but not limited to, negligence, crimes, or unprofessional or unethical, or other improper conduct might create due process problems.
We need not fully define the parameters of this ground. The only error alleged by Bever is that there was insufficient evidence because of lack of expert testimony (or more specifically adequate expert testimony) of the definition of negligence. Expert witnesses are required when a fair and intelligent opinion cannot be drawn from the facts by inexperienced persons. Siebern v. Missouri-Illinois Tractor Equip. Co., 711 S.W.2d 935, 938 (Mo.App. 1986). Expert testimony is not required in every license discipline case. In Perez v. Bd. of Registration for the Healing Arts., 803 S.W.2d 160, 164 (Mo.App. 1991), the Board sought to suspend the license of a doctor who had sexual relations with a patient. The court rejected a contention that expert testimony was required where "[t]he facts presented herein were sufficient to allow inexperienced persons to draw a fair and intelligent opinion on whether Dr. Perez engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public." It is both the nature of the alleged statutory violation and the nature of the act or conduct for which discipline is sought that determines whether expert testimony is required. State Bd. of Chiropractic Examiners v. Clark, 713 S.W.2d 621, 628-9 (Mo.App. 1986) (holding that expert testimony is not required to determine a question of law whether a particular treatment modality fell within the definition of the practice of chiropractic).
Discipline was based on § 334.100.1(10). The court also cited Hughes v. State Board of Health, 159 S.W.2d 277 (Mo. 1942) where under a similar statute the court held "any conduct which by common opinion and fair judgment is determined to be unprofessional or dishonorable, may constitute grounds for revocation." Id. at 278.
Moreover, even where negligence of a physician is involved, expert testimony is not always, although generally, required. It is not necessary where want of skill is so apparent as to be within the comprehension of layman and requires only common knowledge. Graham v. Thompson, 854 S.W.2d 797, 801 (Mo.App. 1993). We need to apply this standard to the evidence cited by the AHC on this disciplinary ground on the bases of negligence that we have found unsupported by the evidence. At least two of the bases for findings on this ground would not fall within that exception. Clearly, the issue of whether Robin should have been more closely monitored, and whether Bever unskillfully caused the lacerations or failed to detect them in Tina's treatment, involves questions of medical judgment and skill. Thus, expert testimony is required. And such testimony must meet the requirements of Ladish.
The third disciplinary ground for conduct harmful to a patient alleges harm due to a delay in transferring Tina to another hospital for surgery or do the surgery himself at Cass County Hospital. He acknowledged that, to do the operation there, he needed an anesthesiologist and an assistant surgeon, neither of whom were on duty but had to be called in. He admitted that Tina had exhausted the hospital's blood supply and more blood would have to be obtained, probably by highway patrol as courier. There was highly conflicting evidence from Bever, the CRNA, the anesthesiologist, and the assistant surgeon, as to what happened that day. It is reasonably inferable from the evidence that Bever knew of the need for surgery and the blood shortage, in the very early afternoon. He claimed that he left the hospital because all of the operating rooms were busy. He returned at about 2:00 p.m. and intended to have her stabilized for surgery by 4:30 p.m. By that time, however, they still did not have the blood. He testified that there were delays in contacting a general surgeon, who then could not arrive until 5:30 p.m. The anesthesiologist had left and had to be called back. The anesthesiologist left. Before 4:30 p.m., Bever had made arrangements for a transfer to St. Luke's if necessary. After the anesthesiologist had left, he could not reach his contact at St. Luke's and a new contact refused to accept the transfer. In the meantime, the surgeon had left. Not until 7:29 p.m. did Bever make arrangements to transfer the patient to K.U. Medical Center. In contrast, the CRNA testified that both operating rooms were available all day; she was not even called about a surgery on Tina until 4:45 p.m. When she found out the condition of the patient, she knew she had to call a back-up anesthesiologist for assistance. She testified that both the assistant surgeon and the anesthesiologist told Bever that the patient's condition was so critical that she needed to be transferred to a bigger hospital. She said that Bever agreed, went into another room, and came back saying St. Luke's had agreed to the transfer. It was only then, according to her, that the other two doctors left. Fifteen or twenty minutes later, Bever told her that St. Luke's refused to accept transfer by ground, and air ambulance was not available because of weather. Bever said he wanted to do surgery with the assistance of a local family practice doctor and the CRNA. She refused because they still did not have any blood products. She told the family practice doctor about the situation and he immediately arranged the transfer to K.C.
The AHC found that Bever offered no reasonable explanations, and characterized them as "excuses," for a three-hour delay in arranging transfer after he made the decision that surgery was necessary. The patient's medical condition and needs were agreed to by all of the medical professionals present. We do not believe that expert testimony was necessary to establish that Bever acted unreasonably and improperly in delaying her transfer. There was no disagreement that the delays could be harmful to the patient. We therefore affirm the finding of cause to discipline for conduct harmful to a patient under Count VI.
POINT II FINAL DISCIPLINARY ACTION BY ST. JOSEPH HOSPITAL
Under § 334.100.2(4)(g), the Board may file an action before the AHC seeking to discipline a physician's license if he incurs final disciplinary action by a hospital based on the kind of professional performance and/or personal misconduct specified generally as cause for discipline under the provisions of § 334.100.2. Section 334.100 provides that discipline by a hospital constitutes grounds for discipline, "whether agreed to voluntarily or not."
In Point II, Bever alleges the that there was no competent and substantial evidence before the AHC because (1) as a matter of law, no final disciplinary action was taken by St. Joseph's, and (2) there was never a final disciplinary hearing nor notice of such a hearing, as required by St. Joseph's bylaws. The Board argues that whether the disciplinary action was final is a question of fact. It further contends that Bever's resignation and the hospital's acceptance during the hospital's disciplinary proceeding constitutes a final action. The Board further contends that Bever waived in his settlement all rights of appeal and any formalities of notice.
Hospitals are mandated by law to adopt and follow bylaws. 19 CSR 30-20.021(2)(A) 2, 14, 15 and 16. Article VIII, Section 2(C) of St. Joseph's bylaws states:
[A] practitioner may voluntarily waive the right to a hearing or appellate review in writing. A written resignation, surrender of privileges, withdrawal of any application which withdrawal is received pending consideration for the practitioner's appointment, reappointment, or clinical privileges by any committee or body or the failure to timely request reappointment at the expiration of the practitioner's appointment, shall be deemed a waiver of any and all rights to a hearing and appellate review of any matters currently under consideration or investigation and all committees or bodies are thereafter excused from proceeding further unless instructed otherwise. A written waiver is effective upon receipt. Under these circumstances, a written resignation shall be forwarded directly to the governing body and is tentatively effective when received and becomes final with acceptance by the governing body.
On September 3, 1992, St. Joseph Health Center suspended Bever's medical staff privileges. St. Joseph's notified him that its Executive Committee had recommended a professional review hearing be conducted by the hospital board. In a suspension letter, the hospital cited Bever's poor judgment, knowledge, and skill in the following areas: assessment of fetal gestational age; inducing labor in pre-term pregnancies; performing scheduled cesarean sections in pre-term pregnancies; fetal monitoring, recognizing and acting on fetal distress; diagnosis and treatment of preeclampsia and of gestational diabetes; performing and interpreting antepartum testing; and treatment of premature labor. In addition, the hospital alleged that Bever had omitted important information from staff applications, provided misleading information to the hospital, and had made misstatements to hospital quality control committees. The Board, thereafter, scheduled a hearing. Bever filed a lawsuit against the hospital, requesting an injunction against the hearing, but came to a settlement on December 30, 1993. As part of the settlement, Bever agreed to resign and to withdraw his pending application for reappointment. He also agreed not to reapply for admission to the medical staff for five years. He further agreed to waive all further appellate rights to a hearing under the St. Joseph bylaws. The hospital agreed not to hold the disciplinary hearing, which was rendered unnecessary by Bever's resignation.
Bever argues that his resignation and settlement agreement do not amount to final disciplinary action. Bever contends that St. Joseph violated its own bylaws, and therefore, the agreement was not a final disciplinary action. Article VII, Section 2(D) of the hospital's bylaws states:
When a practitioner waives the right to a hearing or appellate review upon a proposed action of the executive committee, the action shall become and remain tentatively effective against the practitioner pending the governing body's decision on the matter. When a practitioner waives a right to a hearing or appellate review upon a preliminary decision of the governing body, the decision shall thereupon become effective as a final decision of the governing body as provided in Section 7 of this Article VIII. In the event of either such type of waiver, the hospital shall promptly notify the affected practitioner of the effect of the waiver by certified mail.
Article VIII, section 7 addressed a practitioner's right to appellate review. Bever argues that St. Joseph's never submitted this matter to an appellate review committee. Additionally, he argues that the governing board's acceptance of his resignation does not constitute a "decision" on the disciplinary matter. However, Section 6 of Article VIII says that a practitioner may make a written request for an appellate review of the preliminary decision. Bever never requested this, nor was there a decision to appeal. Bever signed a settlement agreement, which was accepted by the Board. Thus, Article VIII, section 7 does not apply in this situation. The hospital is under no obligation to forward its acceptance of Bever's resignation to the appellate review committee. Possibly, Bever could have made a written request for an appeal, but he did not take that action.
Bever argues that hospitals are required to follow procedural formalities even after a doctor's resignation. Bever waived his rights to review under the bylaws when he signed the settlement agreement. The Board properly followed Article VIII, section 2(c) of its bylaws, which allows a party to waive their rights to an appellate hearing. However, Bever contends, that section cannot be read in isolation. Bever claims the action is not final because the Board did not comply with the rest of its bylaws, specifically Article VIII, section 2(d) and Article VIII, section 7.
Article VIII, section 2(d) says the hospital shall notify the affected practitioner by mail of the effect of the waiver. There is no evidence the hospital did this; however, the Board argues that this is only a technical variation from the bylaws and that under State ex rel. Willman v. St. Joseph Hospital, 684 S.W.2d 408, 411 (Mo.App. 1984), this should be of no consequence. Willman holds that a court will not concern itself with technical deviations from bylaws.
The St. Joseph bylaws do require notice of a waiver be mailed to the waiving doctor. In some instances a failure to mail a waiving party notice could negate such discipline. However, in this specific instance, we feel assured that Bever was provided with notice and did understand that by signing the agreement he waived his right to appeal. As set out below, we find the hospital's failure to mail notice to be a technical deviation from the bylaws, one with which we should not concern ourselves under Willman.
In Willman, an executive committee of a hospital mailed a doctor a letter informing him that his privileges had been revoked. The necessary steps were followed according to the hospital's bylaws and the revocation was finalized in the proper fashion. Willman challenged the revocation based upon the fact that the executive committee only has the right to recommend a revocation, not the right to actually revoke. The court found that the bylaws allowed the executive committee to suspend the practitioner's privileges until the board of directors made the final decision. Though the letter from the executive committee stated to Willman that his privileges were revoked, the Court found that the argument was merely based upon semantics because the proper procedure was followed. The Court found the only violation to be that the executive committee had used the wrong wording in their letter to Willman, otherwise all other necessary procedures were followed.
The question under Willman is whether the hospital's failure to mail notice to Bever is merely a technical violation. The settlement agreement signed by both Bever and a representative on behalf of St. Joseph Health Center states clearly: "Grant A. Bever, M.D., does hereby waive all rights to a hearing under the bylaws of the medical-dental staff of Saint Joseph Health Center, the Health Care Quality improvement statute, 42 U.S.C. § 11110, et seq."
Bever was present at the hearing when the agreement was reached between him and St. Joseph Hospital. Counsel represented him. He read and signed the agreement that clearly said that he understood he was waiving his right to appeal. The agreement unequivocally stated: "Grant A. Bever, M.D. does hereby waive all rights to a hearing under the bylaws of the medical-dental staff of Saint Joseph Health Center."
We must next consider whether the hospital's action was final in statutory terms. The requirement for "final disciplinary action" in § 334.100.2(4)(g) seems obviously intended to prevent discipline by the Board of Healing Arts as long as a licensee is actively pursuing review of or contesting the hospital's action. "Statutes authorizing the Missouri State Board of Registration for the Healing Arts to regulate and discipline physicians are remedial statutes enacted in the interest of public health and welfare and must be construed with a view to suppression of wrongs and mischief undertaken to be remedied." Bhuket v. State ex rel. Missouri State Board of Registration for the Healing Arts, 787 S.W.2d 882, 885 (Mo.App. 1990). They are to be construed liberally and the former doctrine that statutes regulating physicians must be construed strictly and liberally in favor of the physician has been repudiated. Bittiker v. State Bd. of Registration for Healing Arts, 404 S.W.2d 402, 405 (Mo.App. 1966). In Bukhet, supra, the court rejected a hyper-technical definition of the term "disciplinary action." Bever's argument would give the term "final" a technical meaning defined by the hospital bylaws and not the remedial purpose of the statute to protect the public. Acceptance of Bever's argument would allow a doctor to escape oversight by the Board simply by resigning in the face of disciplinary action by a hospital. We do not think that was the meaning intended by the legislature. That is not to say that every resignation after a hospital disciplinary complaint would satisfy § 334.100.2(4)(g). But, here, the Hospital had conducted an extensive review of Bever's patient care and other conduct. It instituted proceedings, which Bever then sued to enjoin. After over a year's delay, he settled by resigning from the hospital staff. Upon these facts, the AHC could find that Bever had accepted the discipline by the hospital. It was a question of fact as to whether a final disciplinary action had been taken. There was substantial evidence to support discipline on this ground.
POINT III Dr. Bever's Recertification
In his third point on appeal, Bever claims the Board erred in failing to consider that after the alleged negligent acts, he passed the obstetrics and gynecology specialty boards, and by doing so, he proved his competence pursuant to § 334.100. Bever argues that both Subsections (5) and (25) of § 334.100.2 address incompetency. The Board disciplined Bever under subsection (5) which allows a complaint to be brought against a physician for "incompetency." Subsection (25), on the other hand, says that a complaint may be brought against a physician for "medical or osteopathic incompetency." He argues that incompetency, since undefined in both subsections, must have the same meaning. Subsection (25) requires a physician to submit to a reexamination in order to establish his competency. Subsection (5) is silent on the matter of reexamination. However, Bever argues that the requirements of subsection (25) should be read into subsection (5). Bever argues, under this reasoning, that since he retook and passed the specialty boards that he cannot possibly be held incompetent under the statute. Bever further argues that 4 CSR 150-2.150 mandates that when a physician passes his or her boards, he or she is deemed to be competent. This argument does not fit with the language of the CSR, which merely explains that the board may require an applicant seeking restoration to good standing to retake boards. C.S.R. 150-2.150 does not mandate the Board do anything. The language "may" merely grants the board discretion to require a reexamination.
The Board summarily argues that since subsection (5) is silent, incompetence under that subsection should be interpreted as it was by the AHC, as a "general lack of , or a general lack of disposition to use, a professional ability." We have, in Point I, approved that definition. The Board also argues that subsection (5) requires that a physician not only have the knowledge to practice in medicine, but also must prove he can put that knowledge to good use. There is a distinction, in our view, between specific incompetency in particular patient care which comes under subsection (5) and general incompetency under subsection (25). The Supreme Court has recognized this distinction. Artman v. State Bd. of Registration for the Healing Arts, 918 S.W.2d 247, 250 (Mo.banc 1996).
Even if we were to assume that the words had sufficiently similar meanings for this argument, we would not agree with the conclusion Bever reaches. 4 CSR 150-2.150 grants discretion to the Board to restore a license to good standing and says that the Board may require a completion of 25 hours of continuing medical education and passing the specialty boards again. Mere passage of these boards cannot be used to defeat a license discipline proceeding. As the Board notes, such a rule would allow a physician to derail a proceeding even before a hearing was held. Bever's third point on appeal is denied.
POINT IV ADMISSION OF PATIENT TESTIMONY AT DISCIPLINARY HEARING
In his fourth point on appeal, Bever argues that the Board erred by allowing what he characterizes as victim impact statements at the disciplinary hearing and considering evidence that was not adduced at the AHC hearing. Specifically he complains about the testimony of the three patients whose treatment has been discussed herein. Bever argues that this testimony violated his constitutional rights of due process pursuant to Article I, Section 10 of the Missouri Constitution and 5th and 14th Amendments of the U.S. Constitution. Finally, Bever argues that this evidence should have been excluded as irrelevant to the issue of what discipline the Board should impose.
Bever first claims that only the AHC can hear testimony and make findings of fact. Section 621.045.1. Bever claims this division in responsibilities was to avoid the Board being "investigator, prosecutor, judge, jury and executioner, all rolled into one." State ex rel. American Institute of Mktg. Sys., Inc. v. Missouri Real Estate Comm'n, 461 S.W.2d 902, 908 (Mo.App. 1970). Bever argues that the Board's only role is to determine the appropriate discipline to be imposed.
Bever contends that since § 334.100 is a remedial statute, rather than a penal statute, it does not allow for the imposition of punishment; therefore victim impact statements do not belong before the Board. Further, Bever claims that victim impact statements are only permitted in criminal cases involving criminal punishment. Section 557.041. Bever claims that since there is no statutory equivalent for civil or administrative cases, that victim impact statements are not permitted. To further support this argument, Bever quotes Livingston Manor, Inc. v. Dept. of Social Servs., 809 S.W.2d 153, 156 (Mo.App. 1991), and says "a basic tenet of administrative law provides that an administrative agency has only such jurisdiction or authority as may be granted by the legislature. If an administrative agency lacks statutory power to consider a matter, the agency is without subject matter jurisdiction." Bever reasons that since the Legislature did not expressly grant administrative agencies the power to hear victim impact statements, they cannot. Bever claims that the Board's action was ultra vires.
Bever also argues that by allowing such statements, his due process rights were violated. Bever claims that due process requires that "a litigant have knowledge of the claims of his or her opponent, have a full opportunity to be heard, and to defend, enforce and protect his or her rights." Brawley Flowers, Inc. v. Gunter, 934 S.W.2d 557, 560 (Mo.App. 1996). Bever claims that all discovery for an administrative hearing is conducted at the AHC phase of the case, which is governed by the Rules of Civil Procedure. Conversely, he claims that there are virtually no rules governing discovery at the Board phase of the case. Bever claims that the opportunity to depose a witness is essential to protecting due process and that by allowing such testimony with no discovery mechanisms in place, his due process rights were violated. Bever claims that there was no other purpose for calling the three women to the stand before the Board, except to inflame the Board, causing it to impose a more severe punishment. Bever claims that this runs contrary to the fact that the revocation statutes are intended to protect the public rather than punish the physician.
The Board claims that victim impact statements before the Board are not constitutionally impermissible. The Board correctly claims that Bever cites no authority for his position that victim impact statements are not permissible in either civil or administrative cases. Further, the Board asserts that § 334.100.4 does not limit what evidence it may consider in disciplining. Bever asserts that § 621.045.1 removes from the Board all power to independently find facts, except with respect to the appropriate imposition of discipline. The Board agrees with this point and claims that the testimony of the three women was relevant to the issue of the appropriate imposition of discipline. The Board claims that there is no limit on what evidence may be heard for this purpose so long as the evidence is relevant to a determination of appropriate discipline.
Finally, in its last response to this point, the Board claims that a professional licensee does not have the same due process rights as a criminal defendant. The Board claims the strict standards of due process associated with a criminal case just do not apply in this situation. The Board claims that Bever is entitled only to procedural due process protection of notice and the opportunity to be heard. The Board claims, "[s]o long as before a license is revoked, the physician has a meaningful hearing with notice and an effective opportunity to defend, due process is satisfied." Artman, 918 S.W.2d at 251.
The Board also cites § 621.110, which provides: "The agency may receive evidence relevant to said issue from the licensee or any other source." (Emphasis added). Victim impact statements appear to be another source. Such information may be helpful to the Board in understanding the severity of injuries sustained as the result of alleged negligence or incompetence. Such information may assist the Board in determining the degree of public protection required.
Section 621.045.1 removes from the Board all power to independently find facts, except with respect to the appropriate imposition of discipline. We find no prohibition against the testimony by patients and we find that the testimony of the three women was relevant to the issue of the appropriate imposition of discipline.
Nor were Bever's due process rights violated. True, due process in an administrative hearing does mandate that "a litigant have knowledge of the claims of his or her opponent, have a full opportunity to be heard and to defend, enforce and protect his or her rights." Brawley Flowers, Inc., 934 S.W.2d at 560. Bever was provided with all these protections in his disciplinary action. Bever was fully aware of the claims filed against him by the Board. Further, he was afforded the opportunity to be heard at the lengthy hearing conducted by the AHC, as well as the disciplinary hearing conducted by the Board. These protections provided Bever with the due process requirements of notice and an opportunity to be heard.
POINT V SEVERITY OF DISCIPLINE
Bever next contends that the Board erred in revoking his license for two years and one day because the Board abused its discretion by revoking Bever's license for such a length of time, by failing to consider mitigating factors (See Point III), by considering inadmissible evidence (See Point IV) and because the revocation was punitive in nature. Bever does not contend that the length of the revocation was not within the Board's statutory authority.
Upon review of an administrative agency's action for abuse of discretion we consider whether the decision is "against the logic of the circumstances" and so arbitrary and unreasonable as to "shock the sense of justice and indicate a lack of careful consideration." Curtis v. Board of Police Comm'rs, 841 S.W.2d 259, 262 (Mo.App. 1992). We have already considered and ruled upon the contentions related to Points III and IV. The Board must have considerable discretion in its determination of appropriate disciplinary action. The Board has substantially more expertise than a court in evaluating the seriousness of various violations of Chapter 334 and the dangers presented to the public. That is not to say that their discretion is unfettered. Courts have reversed disciplinary determinations on the basis of an abuse of discretion. See e.g. Boyd v. Bd. of Registration for Healing Arts, 916 S.W.2d 311 (Mo.App. 1995).
We have affirmed the decision of the board on some grounds for discipline and reversed some others. It would be fundamentally unfair to evaluate the Board's discipline in light of those rulings. We do not intend to suggest that the Board must impose a lesser discipline by this action. The length of revocation is addressed to the sound discretion of the Board. We only intend to allow the Board to exercise that discretion as it finds appropriate.
POINT VI VIOLATION OF THE OPEN MEETINGS LAW
In his sixth and final point on appeal, Bever argues that the Board erred in disciplining his license because the Board's action was a product of a closed meeting prohibited by Missouri's Sunshine Law. 610.010 RSMo, et. seq.
We must first consider the Board's contention that Bever has waived any complaint about the failure to open the deliberations by not objecting when the Board adjourned the hearing. The Board relies upon two cases. In State ex rel Churchill Truck Lines Inc. v. Public Service Commission, 555 S.W.2d 328, 337 (Mo.App. 1977), the court held the violation of the open meetings law was not a jurisdictional defect and could be waived. The waiver occurred because the issue was not raised to the PSC in a motion for rehearing. Such a motion is mandatory in PSC proceedings, § 386.500.2 and would be the first post-decision opportunity to raise the issue. Motions for rehearing are not required in other administrative proceedings and, in fact, are not expressly authorized. In Bonds v. City of Webster Groves, 432 S.W.2d 777, 784 (Mo.App. 1968), the court refused to invalidate an ordinance for failure to provide adequate notice because the objector was in fact present and spoke at the meeting. There certainly was no prejudice to the objector by the lack of notice since she did in fact participate, although we note that it is the broad public interest that is protected by Chapter 610 and not just the interest of one citizen. The record does not clearly reflect when the Board conducted its deliberations. In fact, the record suggests they were not the same day as the hearing or at least completed that day since the parties filed post-trial briefs. It is seemingly the position of the Board that Bever had the affirmative duty to request the Board to conduct its deliberations in public on whatever day or days they might have been held. We disagree. Under the facts herein, we do not find that a waiver occurred.
The disciplinary proceedings in Bever's case were open to the public. However, the Board's deliberations were closed to the public. Bever alleges that closing the deliberations violated his rights under § 610.011.2. The issue before us is whether the open meeting provisions of Chapter 610 apply to an administrative board's deliberations after disciplinary hearings. This issue has been previously decided in the negative by this court in Christiansen v. State Bd. of Accountancy, 764 S.W.2d 943 (Mo.App. 1988). Bever, however, argues that a subsequent amendment to the statute supports his argument that disciplinary proceedings should be open to the public at all stages, including deliberations.
The analysis begins by reviewing the applicable statutes. § 610.011 sets forth the policy:
1. It is the public policy of this state that meetings, records, votes, actions and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.028 shall be liberally construed to promote this public policy.
2. Except as otherwise provided by law, all public meetings of public governmental bodies shall be open to the public as set forth in section 610.020.
Three requirements must be met. We must consider whether (1) the Board is a "public governmental body;" (2) the disciplinary proceeding, including the deliberation stage, was a "public meeting"; and (3) any statutory exceptions apply. The Board makes no argument that it is not a "public governmental body" as that term is used in § 610.010(4).
A "public meeting" is defined in § 610.010(5) as "any meeting of a public governmental body subject to §§ 610.010 to 610.030 at which any public business is discussed, decided, or public policy formulated, whether corporeal or by means of communication equipment." Are the Board's deliberations "public business?"
The term "public business" is also defined. It is "all matters which relate in any way to the performance of the public governmental body's functions or the conduct of its business." Section 610.010(3). This broad definition obviously includes all the operations of a public governmental body. The Board's statutorily described duties come within the scope of "all matters which relate in any way to the performance of public governmental body's functions or the conduct of its business." Under this definition, the discipline of Bever, including the deliberations by the Board, was public business.
This holding takes a position contrary to that taken by this court in Christiansen. In that case, this court held that Chapter 610 did not apply to any disciplinary proceeding involving a licensee brought before the AHC or the licensing agency or board. The court reasoned that "[i] n order for Chapter 610 to apply to disciplinary proceedings, it would have to be concluded that the licensee was a public employee and that meetings for disciplinary proceedings were 'public meetings' within the definition prescribed by § 610.010(3), RSMo. 1986." Christiansen, 764 S.W.2d at 951. The court, at that time, answered the question in the negative. In our opinion, the holding in Christansen has been superseded by the expansive definition of "public business" adopted in 1993.
Next, we must determine if any exceptions found in § 610.021, permitting closed meetings, apply to the Board's deliberations. The Board does not claim that it falls within the judiciary exemption and admits that "the deliberation is not a judicial proceeding." An executive branch administrative agency, while acting in a quasi-judicial role, is not a court. State Tax Comm'n v. Administrative Hearing Comm'n, 641 S.W.2d 69, 75 (Mo.banc 1982). Nevertheless, the Board asserts that, when deliberating, it is engaged in a "judicial function." Although the Board states strong and even persuasive policy reasons for closure of disciplinary deliberations, it points to no exception in Chapter 610 for administrative agencies engaging in a "judicial function." The Sunshine Law provides no such exception and it is not our proper purpose to write one into the statute, no matter how reasonable the result would be. That is a policy decision for the General Assembly. We presume that the General Assembly is aware of our interpretations of its enactments. Adams v. Boring, 826 S.W.2d 867, 870 (Mo.App. 1992). In Remington v. City of Boonville, 701 S.W.2d 804, 807 (Mo.App. 1985), this court held the open meetings law to apply to the deliberations of a zoning board. After the broad definition given public business by the legislature in 1993, we see no current basis in Chapter 610 for engrafting an exception for deliberations of administrative licensing boards.
The Board also contends that it is entitled to an exception in 610.021(1) for: "[l]egal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body and its attorneys." It seems clear that this exception is intended to encompass at least judicial proceedings involving a public governmental body. The Board makes no persuasive argument that this exception should apply to a governmental body performing an adjudicatory role. We find that the exception applies when the government is a party to litigation, as opposed to an adjudicator in an administrative proceeding.
The Board's deliberations were subject to the open meetings law. We disagree, however, with Bever's conclusion that the action against him is therefore void and the complaint should be dismissed. The parties spend some time debating whether, if the open meetings law applies, the Board's action is void or voidable. Section 621.027 provides a statutory remedy for open meetings law violations. It provides that a court shall void an action in violation of the law if it finds that the public interest in the enforcement of the open meetings law outweighs the public interest in affirming the validity of the action taken in a closed meeting. Section 610.027.4. But Bever's complaint here is not brought pursuant to § 610.027, which itself provides that its remedies are not exclusive. Section 610.027.1. We see no legitimate reason to void and dismiss the disciplinary proceeding as Bever requests, particularly when we have determined a need to return this matter to the Board for reconsideration of its discipline. Even so, if we did weigh the relative public interests, we would find the interest in protecting the public from unqualified physicians to be of paramount interest.
Bever also claims that his rights under the United States and Missouri constitutions were infringed. Because we find that the Board was acting illegally in closing its doors under the Sunshine Law and that Bever had a right to be present during the disciplinary deliberations, we elect not to reach the merits of Bever's constitutional argument. A court usually need not reach constitutional issues in a case where such issues are not necessary to the disposition of the case. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 (Mo.banc 1982). If the case can be decided on a non-constitutional basis, a court should do so. We find that Bever's rights are protected by our holding regarding the illegality of the closed deliberations and find no reason to address the constitutional claim.
The decision of the Administrative Hearing Commission and the Board of Healing Arts is affirmed in part and reversed in part. Because of the disposition herein, the matter is remanded to the Board of Healing Arts for deliberations and consideration of the discipline to be imposed on Dr. Bever in accordance with this opinion.
James M. Smart, Jr., Judge, and Thomas H. Newton, Judge, concur