Painter v. Hallingbye ex rel. Wyo. Bd. of Med.

2021 WY 78

REBECCA PAINTER, M.D., Appellant (Petitioner), v. THOR HALLINGBYE, M.D., ex rel. WYOMING BOARD OF MEDICINE, Appellee (Respondent).

THOR HALLINGBYE, M.D., ex rel. WYOMING BOARD OF MEDICINE, Appellant (Respondent), v. REBECCA PAINTER, M.D., Appellee (Petitioner).

S-20-0240

S-20-0241

SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 2021

June 23, 2021

Appeal from the District Court of Campbell County

The Honorable Thomas W. Rumpke, Judge

Representing Rebecca Painter, M.D.:

Stephen H. Kline, Kline Law Office, P.C., Cheyenne, Wyoming.

Representing Thor Hallingbye, M.D., ex rel. Wyoming Board of Medicine:

William G. Hibbler, Bill G. Hibbler, PC, Cheyenne, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

FOX, Justice.

[¶1] The Wyoming Board of Medicine (Board) suspended Dr. Rebecca Painter's license for five years after it found that she had exploited her professional relationship with an elderly patient and the patient's family, and improperly terminated the physician-patient relationship. The matter began in 2014, when the patient's relatives complained to the Board. After conducting an investigation, the Board appointed two members (Petitioners) to file a Complaint and Petition alleging Dr. Painter had violated various provisions of the Wyoming Medical Practice Act (MPA), Wyo. Stat. Ann. §§ 33-26-101 through -703. In 2017, after a contested case hearing, which only two of the Board members attended in person, the Board suspended Dr. Painter's license, and it assessed costs and fees against her, including attorney fees and the hearing officer fees. Dr. Painter appealed to the district court, which reversed in part and affirmed in part. Both parties appealed, and we affirm.

ISSUES

[¶2] Dr. Painter raises three issues which we rephrase as:

I. Were Dr. Painter's due process rights violated because four of the six Board members did not attend the contested case hearing in person?

II. Did the Board act arbitrarily, capriciously, and contrary to law when it applied a presumption of undue influence to Dr. Painter and relied on legal authority beyond the Medical Practice Act to support its conclusion?

III. Is there sufficient evidence to support the Board's finding that Dr. Painter improperly terminated the physician/patient relationship?

We rephrase and consolidate Petitioner's issue as:

IV. Did the Board exceed its statutory authority by passing a rule that redefines "costs" to include certain legal fees, and by assessing half of those fees against Dr. Painter in her disciplinary proceeding?

FACTS

[¶3] The Patient inherited the family ranch outside of Gillette, Wyoming, to the exclusion of her two sisters. While the family understood the Patient was sole owner of the ranch, they continued to refer to it as the "family ranch." The Patient never marriedor had children and intended to leave the ranch to her sisters or their heirs. In 1996, the Patient employed Frank Stevens to assist with her estate planning. She established a trust which held the ranch and all her property. The Patient was both trustee and trustor. She did not allow the family to see the estate plan and trust documents until September 2014, four months before she died.

[¶4] The Patient established a close friendship with Dr. Painter, and in 2008, the Patient asked Dr. Painter to be the successor trustee and executor of her trust. Dr. Painter agreed. Eventually, Dr. Painter became co-trustee and helped the Patient manage her money. The Patient began paying Dr. Painter $60 per hour or $300 per month for the time spent managing the Patient's finances. All told, excluding payments for medical care, Dr. Painter paid herself $42,725 from the Patient's checking account.

[¶5] Meanwhile, the Patient's family became suspicious of Dr. Painter and relations between them grew contentious. Eventually, the Patient's niece filed a complaint with the Board of Medicine because she was concerned about the relationship between her aunt and Dr. Painter and feared that the Patient might leave the ranch to Dr. Painter. As the Board initiated its investigation, the Patient's health deteriorated and she moved to Pioneer Manor, a residential nursing facility in Gillette. When the Patient's ranch managers quit on short notice, Dr. Painter suggested her son-in-law, and the Patient hired him to manage the ranch, paying him approximately $3,000 per month.

[¶6] The Board prosecutor, Board investigator, and the Patient's niece and nephew interviewed the Patient at Pioneer Manor about her relationship with Dr. Painter.¹ The Patient remained steadfast in her support of Dr. Painter and her desire to compensate her for the financial management assistance. There is no dispute the Patient remained competent until her death. In response to the Board's concerns, Dr. Painter had a member of her staff hand-deliver a letter terminating the physician-patient relationship, stating the Pioneer Manor physician had assumed care of the Patient. The Patient died in January 2015. Dr. Painter, in her role as trustee, worked to wrap up the estate and distribute its assets to the beneficiaries. Eventually, Dr. Painter and the Patient's family reached an agreement which provided that the trust paid Dr. Painter $35,000 for the unpaid financial management services she provided before the Patient's death, and the heirs inherited the "family ranch" free and clear.

[¶7] The Petitioner² filed four counts against Dr. Painter, each containing multiple alleged violations. The Board held a six-day contested case hearing presided over by an Office of Administrative Hearings (OAH) hearing examiner. Two Board members attended the entire hearing in person. The hearing was videotaped and every Boardmember was provided a copy of the entire record including the videos, transcripts, and exhibits. In a 275-page order, the Board found Dr. Painter exploited the Patient and the Patient's family, and improperly terminated the physician-patient relationship. The Board immediately suspended Dr. Painter's license for five years; ordered her to pay $78,526.69, which was one half of the costs associated with the hearing and included fees for the Board's prosecuting attorney and OAH hearing officer; and ordered her to pay a $15,000 fine.³

[¶8] Dr. Painter appealed to the district court. The district court affirmed some violations, reversed others, and remanded for a determination of costs because it found the fee assessment unauthorized by law. Both parties appealed to this Court. Painter v. McGill ex rel. Wyo. Bd. of Med., 2019 WY 108, 450 P.3d 1243 (Wyo. 2019) (Painter II). We dismissed the appeal because the order appealed from was not a final appealable order. Id. at ¶ 21, 450 P.3d at 1248. The Board addressed the issues remanded by the district court, again assessed half the Board's costs, including the prosecutor and hearing officer fees, against Dr. Painter, and the parties again appealed to the district court. In a thoughtful and thorough order, the district court dismissed parts of Count I and two other counts entirely. The Board of Medicine did not raise those dismissals in this appeal. The violations remaining after the district court's order are:

• Count I: Exploitive and Improper Conduct Toward the Patient under § 33-26-402(a)(vii) as defined in § 33-26-102(a)(xiii)(C) (now under § 33-26-402(a)(xxxv)): "Any behavior by a licensee toward a patient, former patient, another licensee, an employee of a health care facility, an employee of the licensee or a relative or guardian of a patient that exploits the position of trust, knowledge, emotions or influence of the licensee"⁴, and § 33-26-402(a)(x)—"[v]iolating or attempting to violate or assist in the violation of any provision of this chapter or any other applicable provision of law;" and• Count IV: Improper Attempt to Terminate the Physician/Patient Relationship under § 33-26-402(a)(xxvii)(N)—"[i]mproperly terminating a physician-patient relationship," and § 33-26-402(a)(xxxi)—"[v]iolation of any board rule or regulation."

[¶9] The district court reversed the Board's assessed fees and affirmed all other costs.⁵ Both parties appealed.

STANDARD OF REVIEW

[¶10] We review an appeal from the district court's review of an administrative agency's decision as if it had come directly from the agency and give no deference to the district court's decision. Mirich v. State ex rel. Bd. of Tr. of Laramie Cnty. Sch. Dist. Two, 2021 WY 32, ¶ 15, 481 P.3d 627, 632 (Wyo. 2021) (citing Sweetwater Cnty. Sch. Dist. No. One v. Goetz, 2017 WY 91, ¶ 23, 399 P.3d 1231, 1235 (Wyo. 2017)). Wyoming Statute § 16-3-114(c) provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann....