                                         No. 87-226
                         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1987



DAVID VERNON KAUFFMAN, M.D.,
                          Plaintiff and Appellant,
         -vs-
DEPARTMENT OF COMMERCE, BOARD OF
MEDICAL EXAMINERS, A political
subdivision of the State of Montana,
                          Defendant and Respondent.




APPEAL FROM:              District Court of the Eleventh Judicial District,
                          In and for the County of Flathead,
                          The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                          Leaphart Law Firm; C. W. Leaphart, Jr. argued, Helena,
                          Montana
         For Respondent:
                          Harrison, Loendorf    &    Poston; John P. Poston argued,
                          Helena, Montana



                                               Submitted:      November 3, 1987

                                                    Decided:   November 20, 1987
         p;
          u'   2,   A'   1987
Filed:
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
      Petitioner and appellant David Vernon Kauffman, M.D.,
appeals an order of the Eleventh Judicial District, Flathead
County, affirming the decision of the State Board of Medical
Examiners (Roard) to revoke Kauffman's medical license. We
affirm.
      Two issues are presented for our review:
      1. Did the Board abuse its discretion when it revoked
Kauffman's medical license?
      2. Was appellant Kauffman prejudiced when the Roard
offered Exhibit 8 into evidence?
      Appellant, Dr. David Kauffman, is a graduate of Eastern
Mennonite College, Harrisburg, Virginia, and Hahnemann Medi-
cal College, San Francisco, California.     In 1957 Kauffman
interned at Sacred Heart Hospital in Spokane, Washington.
Since 1959, he has practiced medicine in Whitefish, Montana.
      Following the death of two infant patients in 1984, the
Roard restricted Dr. Kauffman's license by barring him from
treating obstetrical patients and providing neo-natal care to
infants. The Board alleged three instances of unprofessional
conduct.   Following continuance, Dr. Kauffman responded by
denying any unprofessional conduct.
      On October 25, 1985, the Board issued an amended notice
of hearing based upon the same allegations. The Board recon-
firmed that Dr. Kauffman was restricted from practicing
obstetrical and neo-natal care.      The amended notice a.lso
contained the following allegations:
      IV. Dr. Kauffman aided and abetted another person in
the unlicensed practice of medicine;
      V. Dr. Kauffman falsely, fraudulently and deceptively
submitted. bills to the Montana Social and Rehabilitative
Services (SRS);
      VI. Dr. Kauffman continued to provide prenatal care to
a patient following the original restriction order; and
      VII. Dr. Kauffman provided care for a new obstetrics
patient following the original restriction order.
      Contested hearings were held March 17, 18, 19 and March
30 and April 1, 1986. On June 23, 1986, another hearing was
held before the full Board of Medical Examiners. The Board
issued its final order on June 27, 1986, revoking Dr.
Kauffman's license to practice medicine. On April 1, 1987,
the Honorable Michael H. Keedy affirmed the Board's order.
      In Count I, the Board alleged that Dr. Kauffman commit-
ted negligent medical practice when caring for Susan Buck and
her unborn baby. The Board determined that:
       (1) Dr. Kauffman's birthing room was not adequately
equipped ;
      (2) obstetrical patients were not fully informed of
the process of office birthing; and
      (3) Dr. Kauffman did not have a protocol for
complications.
      The Board also determined that Dr. Kauffman committed
negligence and gross malpractice when the unborn baby's
umbilical cord became prolapsed and Dr. Kauffman failed to:
      (1) leave Susan Buck in the care of qualified and
competent personnel;
      (2) administer oxygen;
      (3) place Susan Buck in the knee-chest position;
      (4) transport Susan Buck to the North Valley Hospital
in Whitefish (instead of Kalispell Regional Hospital),
      (5) accompany Susan Buck to the hospital and push on
the head of the baby and monitor the baby.
      In Count 11, the Board alleged that Dr. Kauffman com-
mitted negligent medical practice and gross medical malprac-
tice when caring for Kimberly Koppen and her unborn baby.
The Board found that Dr. Kauffman committed negligence and
gross malpractice when Dr. Kauffman failed to:
       (1) test Kimberly for gestational diabetes;
       (2) perform non-stress testing after Kimberly Koppen
reached full term;
      (3) recognize Kimberly was a complicated patient with
a family history of diabetes and was post-term;
      (4) adequately monitor the unborn baby;
      (5) deliver the infant once fetal distress was
obvious.
      In Count 111, the Board alleged that Dr. Kauffman
misled some of his obstetrical patients when he informed them
that he would have hospital privileges before the birth of
their children.    Dr. Kauffman did not refute the Board's
allegation.
      In Count IV, the Board found Dr. Kauffman not guilty of
aiding and abetting an unlicensed physician in the practice
of medicine.   In Count V, the Board found Dr. Kauffman not
guilty of false, fraudulent or deceptive billing practices.
      In Counts VI and VII the Board found Dr. Kauffman
guilty of violating the Board's order that Dr. Kauffman
discontinue to provide obstetrical care.    Dr. Kauffman did
not dispute the Board's finding.

Issue 1
        Did the Board abuse its discretion when it revoked
Kauffman's medical license?
      Our standard when reviewing contested cases under the
Montana Administrative Procedures Act (MAPA) is found in
S 3-4-704, MCA, which provides in pertinent part:
            (2) The court may not substitute its
           judgment - - - - the agency - -
                     for that of                 as to
           the weight - the evidence - questions
           -           of                  on
           of fact.     ~ h r c o u r t mav affirm the
           decision of the agency or remand the
           case for further proceedings. The court
           may reverse or modify the decision if
           substantial rights of the appellant have
           been prejudiced because the administra-
           tive findings, inferences, conclusions,
           or decision are:
           (a) in violation of constitutional or
           statutory provisions;
           (b) in excess of the statutory authori-
           ty of the agency;
           (c) made upon unlawful procedure;
           (dl   affected   by   other error of law;
          (el clearly erroneous in view of the
          reliable, probative, and substantial
          evidence on the whole record;
          (f) arbitrary or capricious or charac-
          terized by abuse of discretion or clear-
          ly unwarranted exerci-se of discretion;
          or
          ( g ) because findings of fact, upon
          issues essential to the decision, were
          not made although requested. [Emphasis
          added. ]
Appellant Kauffman does not challenge any of the Board's
findings of fact or conclusions of law.        Further, Dr.
Kauffman does not challenge the Board's authority to revoke
his medical license. Rather, appellant Kauffman contends the
Board acted in a punitive, rather than a protective manner
when it revoked his license. In re Matter of the Denial of
License of Rudolph E. White (Mont. 1986), 712 P.2d 1344,
1346, 43 St.Rep. 151, 154; S 37-3-101, MCA. Appellant argues
that a license restriction rather than a license revocation
is the proper remedy.
      The Board. made 134 findings of fact which were adopted
by the District Court.     A review of the Board's findings
reveals that Dr.       Kauffman practiced medicine in a
"half-hearted" manner in nearly all areas of his medical
practice.   Clearly, the Board's decision is based on reli-
able, probative and substantial evidence, $ 2-4-704 (2)(el ,
MCA.
      In the Board's conclusions of law, the serious nature
of this proceeding is addressed:
           Underlying this proceeding is the unspo-
           ken problem of terminating this doctor's
           right to practice his chosen profession,
           and the havoc that will bring to him and
           his family.    No doubt this is a point
           which must be seriously considered.
           However, the upheaval revocation will
           cause the Kauffmans is a mere inconve-
           nience when compared to the agony caused
           the two families by the deaths of their
           infants.
           Dr. Kauffman's care and treatment of
           S.B. and K.K. are each by themselves
           enough to invoke revocation of Dr.
           Kauffman's license to practice medicine.
           However, the evidence established that
           the unfortunate deaths of the two in-
           fants were no quirks of fate occurring
           in the practice of an otherwise compe-
           tent   and    conscientious   physician.
           Rather, they were all but inevitable
           events   in   view   of  the   lax   and
           half-hearted   manner   in   which   Dr.
           Kauffman practiced medicine.     Whether
           this is a result of disinterest or
           inability is only of secondary interest.
      As a court of last resort, we appreciate the gravity of
removing appellant's means of livelihood. However, we are
bound by $ 2-4-704, MCA, to affirm the findings of fact and
conclusions of law of the Board and the District Court in
absence of an abuse of discretion. Yanzick v. School Dist.
No. 23 (1982), 196 Mont. 375, 388, 641 P.2d 431, 439. We
hold the District Court did not abuse its discretion when it
revoked appellant's license to practice medicine.

Issue 2
      Was appellant Kauffman prejudiced when the Board of-
fered Exhibit 8 into evidence?
      Appellant contends Exhibit 8, a 1978 letter from the
Board to Dr. Kauffman, was introduced at the hearing without
proper prehearing exchange.     Section 2-4-612, MCA.    The
hearing examiner initially admitted Exhibit 8 over appel-
lant's objection. In his findings of fact and conclusions of
law, the hearing examiner reversed his ruling and rejected
Exhibit 8. In doing so, the hearing examiner stated:
           I now reverse that ruling. Exhibit 8 is
           excluded from the evidence and was not
           considered by me in preparation of these
           findings of fact and conclusions of law.
           In light of the overwhelming evidence it
           would have made no difference.
      In light of the above-mentioned statement, we hold the
appellant Kauf fman was not prejudiced by introduction of
Exhibit 8. The issue at hand is similar to a bench trial, in
which the trier of fact routinely reviews proposed exhibits
before admitting or rejecting them. Appellant's argument is
unpersuasive.
      We suggest that Dr. Kauffman continue his medical
education and training if he desires to move the Board of
Medical Examiners to reinstate his medical license.
We concur:
Mr. Justice John C. Sheehy dissenting:


     Dr. Kauffman has limited his appeal in this case to the
breadth of the order revoking his medical license.            He
contends that out of his broad general practice, as a general
practitioner, the issues on which the Board of Medical
Examiners found against him are limited to the narrow field
of his practicing obstetrics-gynecology. The findings of the
Board substantiate his argument.         Apart from the problems
that developed from his practice of obstetrics, no complaint
exists against him with respect to any other portion of his
general practice which over nearly 30 years, has been
extensively broad.
     On review from an agency decision under the Montana
Administrative Procedure Act (Section 2-4-704, MCA) , "the
standard of review to be applied to findings of fact by a
reviewing court is one of "clearly erroneous"; conclusions of
law are subject to an "abuse of discretion review." Bill.inqs
v. Billings Fire Fighters Local No. 521 (1982), 200 Mont.
421, 651 P.2d 627.     It appears to me to be an abuse of
discretion to revoke completely Dr. Kauffman's license to
practice medicine, when, in the light of the objections made,
a fair result could be obtained by simply restricting him
from the practice of obstetrics-gynecology.        The Board has
power to do so under S 37-3-323 ( 6 5 ) (e), MCA. When the Board
disciplines a practitioner, it may "take any other action in
relation to disciplining him as the Board in its discretion
considers proper."
     There is power under our statutes for the Board to
enforce a partial restrictive order or suspension of the
right to practice.      A violation of the Board's order
restricting such practice is punishable as a misdemeanor
under 5 37-3-325, MCA. That course was not followed here by
the Board, although if the Board's allegations were true, a
procedure under 5 37-3-325, MCA, would be more effective in
enforcing the Board's suspension order. The ensuing action
of the Board in completely revoking his license to practice,
rather than a partial suspension relating to the field in
which it charged incompetence has a punitive smack.
Punishment   is   the business of       courts and    not   of
administrative agencies.    In Matter of White (Mont. 1986),
712 P.2d 1344, 43 St.Rep. 151, we found the denial of a
nursing license to be hypertechnical and an abuse of
discretion by the agency. In White we also pointed that the
intention of the legislature should be served by licensing
agencies in the discharge of their duties.          Here, the
privilege of the practice of medicine should be regulated "to
the end that the public shall be properly protected against
unprofessional, improper, unauthorized, and unqualified
practice of medicine" ( § 37-3-101, MCA), and the Board should
maintain   such reasonable supervision to ensure that
licensees, "maintain standards of conduct and exercise
[their] privileges  ...    in the greatest public interest."
(5 37-3-202, MCA). The greatest public interest in this case
would be served by limiting the restriction of Dr. Kauffman's
license to obstetrics and gynecological cases, and leave him
free to practice in all other fields in which he is
qualified. The people in northwest Montana would be better
served by such a course. The effect of the Eoard's decision
is to deny to a qualified practitioner the right to practice
within all fields of his expertise in Montana. Under White,
this is an abuse of discretion.
     An example of going outside the record to justify a
result is the resort by the agency and now this Court to a
comparison of the agony felt by the bereaved families of the
infants to the "inconvenience" of Kaufman's loss of license.
Our natural sympathies are played upon and the punishing
effect of the order is masked as just retribution.


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