Lawnwood Med. Ctr., Inc. v. Seeger

Lawnwood Med. Ctr., Inc. v. Seeger, No. 1D06-2016 (Fla. Dist. Ct. App. June 21, 2007)

A trial court, in ruling on a motion for summary judgment, held that a special law, the "St. Lucie County Hospital Governance Law," was invalid because it significantly infringed upon the Florida constitution’s freedom of contract provisions. A for-profit corporation, operating a medical center, challenged the ruling, and the District Court of Appeal of Florida affirmed and held that the law was unconstitutional since it dramatically altered many of the rights and obligations specified in the medical staff bylaws. The court noted that the special law was not required to protect public health, ensure quality of care, or accomplish some other legitimate public purpose. Also, the court found that the special law was in violation of the Florida constitution because it granted a privilege to a private corporation by significantly diminishing or eliminating many of the medical center’s contractual obligations to its medical staff.

 

Laredo Med. Group Corp. v. Mireles

WHISTLEBLOWER/WRONGFUL TERMINATION

Laredo Med. Group
Corp. v. Mireles, No. 04-03-00729-CV (Tex. Ct. App. Oct. 20, 2004)

The Texas Court of Appeals reversed and remanded a trial court ruling which
found that a certified public accountant was fired by a hospital-affiliated
medical group because she refused to prepare inaccurate financial statements.
The CPA contended that her refusal to perform an illegal act was displayed
by her refusal to engage in double billing. The court found that if the
alleged illegal acts did occur, they would have taken place in the billing
department, not in the accounting department. Thus, she only used information
supplied by the billing department and only used that information to prepare
internal financial statements. The court also ruled that there was no evidence
that the CPA was ordered or refused to perform an illegal act and, as the
medical group is a private corporation and not a public entity, there was
no evidence that she had a duty to report the alleged improprieties.

Laurino v. Bd. of Prof’l Discipline of the Idaho State Bd. of Med.

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 27131

JAMES A. LAURINO, M.D.,

Plaintiff-Respondent,

v.

BOARD OF PROFESSIONAL
DISCIPLINE OF THE IDAHO STATE
BOARD OF MEDICINE,

Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)
)

Boise, February 2002 Term

2002 Opinion No. 102

Filed: July 16, 2002

Frederick C. Lyon, Clerk

SUBSTITUTE OPINION
THE OPINION ISSUED MAY 1, 2002 IS
HEREBY WITHDRAWN

Appeal from the District Court of the Fourth Judicial District, State of
Idaho, Ada County. Hon. D. Duff McKee, District Judge.

Order revoking medical license, vacated. Board’s findings of two
violations of standard of care, affirmed. Remand for determination of
sanctions.

Uranga & Uranga, Boise, for appellant. Jean R. Uranga argued.

Quane, Smith, Boise, for respondent. Terrence S. Jones argued.

____________________________________

WALTERS, Justice
This is an appeal by the Board of Professional Discipline of the Idaho State Board
of Medicine from a decision of the district court that reversed the Board’s order revoking
James A. Laurino, M.D.’s license to practice medicine. We hold that the Board erred in
revoking Dr. Laurino’s license in light of the evidence presented at the inquiry
concerning Dr. Laurino’s treatment of nine patients. However, because we also hold that
there is substantial, competent evidence supporting the Board’s conclusion that Dr.
Laurino failed to provide proper medical care with respect to two of the patients, we
remand the case for a new determination by the Board as to an appropriate sanction that
should be imposed.

1

FACTS AND PROCEDURAL BACKGROUND
The Board of Medicine filed a complaint against Dr. Laurino in May of 1998,
alleging that Dr. Laurino had provided substandard care in his treatment of nine patients,
who were seen in his general practice in Grangeville, Idaho, during a six-month period.
A hearing officer appointed by the Board heard evidence on the allegations on October
12, 1998, and subsequently issued an exhaustive decision recapping the testimony and
including his findings of fact, conclusions of law and a recommendation.
The hearing officer found only two minor violations of the standard of care with
regard to Dr. Laurino’s care and treatment of patient M.J. The hearing officer deferred to
the Board for a determination of appropriate disciplinary action for the violations but
otherwise recommended dismissal of all of the allegations in the remaining counts.
The Board independently reviewed the decision of the hearing officer and his
recommended dismissal of the complaint, pursuant to I.C. § 67-5244. On November 5,
1999, the Board issued its findings of fact, conclusions of law and final order. The Board
found by clear and convincing evidence on each count that Doctor Laurino’s
management of his patient’s care “did not meet the standard of care taken by other
qualified physicians in the Grangeville community, taking into account Doctor Laurino’s
training, experience and the degree of expertise with which he holds himself out to the
public.” The Board concluded to take “its experience, technical competence and
specialized knowledge in evaluating the evidence, as well as the extensive expert
testimony by local physicians in determining that Dr. Laurino’s conduct does not meet
the standard of care.” Finally, the Board determined that revocation of Dr. Laurino’s
license was the appropriate sanction to administer in the case.
After the Board denied Dr. Laurino’s reconsideration request, Dr. Laurino filed a
petition with the district court for judicial review. The memorandum decision of the
district court reversed the decision of the Board and directed that the disciplinary
complaint against Dr. Laurino be dismissed. The district court held that none of the
Board’s factual findings were supported by any reasonable interpretation of the evidence,
that the Board ignored the testimony of witnesses presented by Dr. Laurino, and that the
Board concluded that Dr. Laurino had altered or falsified records even though such

2

charges were not a part of the complaint. The Board appealed from the decision of the
district court.

STANDARD OF REVIEW
The Idaho Administrative Procedure Act, Idaho Code § 67-5279, sets forth the
standard of review for an appeal from a disciplinary proceeding by the Board of
Medicine. In an appeal from the district court’s decision where the district court was
acting in its appellate capacity in a review under the APA, the Court reviews the agency
record independently of the district court’s decision. Levin v. Idaho State Board of
Medicine, 133 Idaho 413, 987 P.2d 1028 (1999); First Interstate Bank of Idaho, N.A. v.
West, 107 Idaho 851, 693 P.2d 1053 (1984). The rulings of the district court therefore are
not the focus of our review. The Court will defer to the agency’s findings of fact unless
those findings are clearly erroneous. Paul v. Board of Professional Discipline, 134 Idaho
838, 11 P.3d 34 (2000), citing Ferguson v. Board of County Commissioners for Ada
County, 110 Idaho 785, 719 P.2d 1223 (1986). Neither the district court nor this Court on
appeal may substitute its judgment for that of the agency as to the weight of the evidence
presented in the record. I.C. § 67-5279(1); Levin, supra at 417, 979 P.2d at 1032;
Woodfield v. Board of Professional Discipline, 127 Idaho 738, 905 P.2d 1047 (Ct. App.
1995). The agency’s findings must be affirmed unless the findings are not supported by
substantial evidence on the record as a whole, I.C. § 69-5729(3), or the findings are
arbitrary, capricious, or an abuse of discretion, I.C. § 69-5729(2)(d). Any findings made
by the Board based on matters outside the record must be reversed as unsupported by
substantial, competent evidence or as arbitrary and capricious.
I.
ESTABLISHING THE STANDARD OF CARE
The Medical Practices Act provides that a physician is subject to discipline by the
Board for “the provision of health care which fails to meet the standard of health care
provided by other qualified physicians in the same community or similar communities,
taking into account his training, experience and the degree of expertise to which he holds
himself out to the public.” I.C. § 54-1814(7). The language of I.C. § 54-1814(7) has
been held to be similar to the well-accepted definition of medical malpractice, contained
in I.C. § 6-1012, and sufficient to notify medical practitioners that they could be

3

disciplined for failure to conform to community standards. Krueger v. Board of
Professional Discipline, 122 Idaho 577, 836 P.2d 523 (1992); Woodfield v. Board of
Professional Discipline, 127 Idaho 738, 748, 905 P.2d 1047, 1057 (Ct. App. 1995). The
burden of proof in a disciplinary proceeding is the “clear and convincing” standard.
Cooper v. Board of Professional Discipline, 134 Idaho 449, n.3, 4 P.3d 561 n.3 (2000).
The Board contends that the hearing officer measured the conduct of Dr. Laurino
against an incorrect standard of care derived from a misreading of Krueger v.
Professional Discipline, 122 Idaho 577, 836 P.2d 523 (1992). Because of the application
of the erroneous standard, the Board asserts it was justified in rejecting all of the hearing
officer’s findings and conclusions. The Board determined the standards of care in this
case, relying principally upon the testimony of its experts: Dr. Hollopeter, who had
practiced for twenty-five years in Grangeville, and Dr. Gardner, another Grangeville
family care practitioner. Both doctors were on staff at the local hospital, Syringa
Hospital, and were directly involved in peer review proceedings during which they
observed and evaluated Dr. Laurino’s performance and ultimately decided not to grant
hospital privileges to Dr. Laurino.
In Krueger, the Court held that the district court’s reliance on the “consensus of
expert opinion” language1 was misplaced. Krueger, supra at 581, 836 P.2d at 527. The
Court reversed the district court’s finding that the Board’s decision as to patients A
though E would be unconstitutionally vague without a finding that the decision was
supported by a consensus of expert opinion. Id. at 582, 836 P.2d at 528. As the Court
explained in a later case, the Krueger Court upheld “the application of a statutory
standard [I.C.§ 54-1814(7)] based on expert testimony of other physicians.” See
Rincover v. State, 124 Idaho 920, 923, 866 P.2d 177, 180 (1994).
A determination of a violation of the standard of care must be supported by expert
testimony establishing the community’s generally accepted standard of care required of
the physician under the circumstances of each case under scrutiny. Woodfield v. Board of
Professional Discipline, supra. To the extent that the evidence as to the local standard of

1 The consensus language was enunciated in Tuma v. Board of Nursing, 100 Idaho 74, 593 P.2d 711 (1979),
where the Court was addressing the authority conferred upon a board to promulgate rules and regulations
defining unprofessional conduct, quoting the “consensus” language from Reyburn v. Minnesota State
Board of Optometry, 78 N.W.2d 351 (Minn. 1956).

4

care is in conflict, that is a question of the weight, not the admissibility of the evidence.
Kozlowski v. Rush, 121 Idaho 825, 828 P.2d 854 (1992) (Bistline, J., specially
concurring). The weight to be given such expert opinion testimony depends upon the
propriety and reasonableness of the testimony, but the testimony is not binding upon an
experienced and professional board. See Snyder v. State, 480 N.E.2d 496, 498 (Ohio
App. 1984). The Board’s finding of a breach of the standard of care then may be based
on a comparison of the alleged violation against a well-recognized standard, articulated
by the Board, based on the expertise and experience of the member physicians.
Woodfield, 127 Idaho at 749, 905 P.2d at 1058. See also I.C. § 67-5251(5). The Board,
however, may not use its expertise as a substitute for evidence in the record, since the
requirement for administrative decisions based on substantial evidence and reasoned
findings2–which provide the basis for effective judicial review–would become
meaningless if material facts known to or relied upon by the agency did not appear in the
record.

II.
SUBSTANTIAL AND COMPETENT EVIDENCE
The violations that the Board found against Dr. Laurino must be reviewed to
determine whether the evidence in the record as a whole supports the findings,
inferences, and conclusions made by the Board. I.C. § 67-5279(3)(d). Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate and
reasonable to support a conclusion. Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257,
260, 715 P.2d 927, 930 (1985).
In reaching a decision on the sufficiency of the evidence, we also consider the
arguments raised by the Board concerning (1) the real testimony presented by the
Board’s witnesses and (2) the testimony of Dr. Klomp, which had been ruled
inadmissible by the hearing officer but held admissible by the district court.
Real evidence is “evidence given to explain, repel, counteract, or disprove
facts given in evidence by the opposing party.” BLACK’S LAW DICTIONARY (6th
ed.) p. 1267. Introduced to impeach Dr. Laurino’s credibility, the testimony of Nurse
Messenger, patient K.B. and Nancy Kerr could be properly considered real evidence.

2 See I.C. § 67-5248.

5

This testimony raised factual issues as to whether Dr. Laurino had falsified records–a
question that was within the discretion of the hearing officer to resolve and did not
require the expertise of the Board. However, because the Board found the real
witnesses credible, the Board was required to state its reasons for disagreeing with the
determination of the hearing officer.3 We will duly examine the Board’s findings
hereinafter on each count where real evidence was presented.
Dr. Klomp, an obstetrics and gynecology specialist practicing in Boise, admitted
that he did not inquire of a local physician in the Grangeville area to determine the local
community standard. He testified, however, that Dr. Laurino’s care of patients R.C. and
K.B. was within the standard of care applicable in Boise. Although compliance with the
local standard of care insulates the doctor from medical discipline, pursuant to I.C. § 54-
1814(7), evidence that the doctor followed a higher standard should not be barred. If
there is a lower standard practiced locally, for example, in Grangeville, the evidence
should at least be a mitigating factor for disciplinary sanction. We conclude that the
testimony of Dr. Klomp concerning the standard of care in Boise was a matter that
properly could be considered by the Board.
Next, we turn to the Board’s findings on each of the nine counts.
1. Patient A.G.
The Board found that Dr. Laurino violated the standard of care by not ordering a
chest x-ray, by not monitoring oxygen saturations, and by not ordering an EKG upon
A.G.’s admission to the hospital. The Board also found a violation in the standard of care
for Dr. Laurino not to have transported to the hospital the EKG done in his office earlier
the same day, to be included in the hospital record. As to the latter violation, the failure
to transport the office EKG to the hospital, it is not supported by substantial and
competent evidence particularly in view of Dr. Young’s undisputed testimony that there
was no standard of care on the transport of office test results to the hospital.

3 The Idaho Court of Appeals has stated:
Generally speaking, findings based on witness credibility depend critically on
observation of the witness. Therefore, “the [hearing officer’s] decision to give or deny
credit to a particular witness’ testimony should not be reversed absent an adequate
explanation of the grounds for the reviewing body’s source of disagreement with the
[hearing officer.]” [Citations omitted.]
Woodfield v. Board of Professional Discipline, 127 Idaho 738, 746, 905 P.2d 1047, 1055 (Ct. App. 1995).

6

The patient, a sixty-nine-year-old man with previously diagnosed congestive heart
failure, was seen first in Dr. Laurino’s office on August 29, 1996, and then admitted to
the hospital. There was evidence that a chest x-ray and an EKG were taken in the office
by Dr. Laurino’s nurse Kashmitter. The x-ray was produced for the disciplinary hearing;
both the nurse and the patient testified that it had been taken, although the office records
contained no reference to any x-ray or billing therefor. In concluding that Dr. Laurino
had violated the standard of care requiring a chest x-ray, the Board chose not to believe
either the testimony of Dr. Laurino or nurse Kashmitter that an x-ray had been taken.
Instead, because Dr. Gardner testified that the x-ray had not been produced at the earlier
peer review proceedings, the Board discredited Dr. Laurino’s testimony and concluded
that Dr. Laurino was being untruthful and had fabricated the x-ray. There is insufficient
evidence to support the Board’s conclusion that Dr. Laurino fabricated the x-ray.
The Board found a violation of the standard of care based on the testimony of
Dr. Gardner, Dr. Hollopeter, and Dr. Maier that Dr. Laurino should have monitored
A.G.’s oxygen saturations. Although there was evidence from Dr. Rockwell, one of Dr.
Laurino’s witnesses who testified that oxygen saturations are not commonly done, and
from A.G.’s cardiologist, who did not recommend that oxygen be administered or oxygen
saturations be done, the Board’s findings are supported by the evidence. Therefore, we
affirm the violation found by the Board regarding Dr. Laurino’s failure to monitor A.G.’s
oxygen saturations even though there is evidence to the contrary.
2. Patient R.B.
This patient had had two prior heart attacks or myocardial infarctions (MI). He
met Dr. Laurino at Syringa Hospital complaining of chest heaviness and shortness of
breath. R.B. walked to Dr. Laurino’s office near the hospital, where he was first
examined and then was referred back to the hospital for additional tests. Dr. Laurino’s
office notes show that R.B.’s presenting symptoms resolved themselves and that the EKG
done in Dr. Laurino’s office failed to indicate any new abnormalities. The charge in the
complaint alleged that Dr. Laurino “failed to follow routine evaluative procedures.”
The Board found in this case that Dr. Laurino had violated the standard of care by
not keeping R.B. in the hospital for at least six hours to monitor his heart condition. No
evidence was presented, however, as to how much time is required for a patient with a

7

cardiac history to be monitored before being discharged after his symptoms have been
ameliorated and all tests results are negative for MI. Thus, the applicable standard of
care was not proven, and Dr. Laurino cannot be held to be in violation of a standard that
the experts failed to define.
The Board found that on R.B.’s admission to the hospital, it was also a violation
of the standard of care for Doctor Laurino not to conduct serial EKGs and serial enzymes,
and not to do a cardiac consult. As stated earlier, one EKG was done at Dr. Laurino’s
office and a second EKG was done at the hospital. The two EKGs did not satisfy Dr.
Gardner, who testified that it was a violation of the standard of care not to conduct serial
EKGs and serial enzymes. Dr. Gardner’s opinion did not factor in the patient’s decision
to refuse further tests when the initial results were negative for another heart attack. Dr.
Hollopeter’s opinion, he testified, was based only on the hospital records,4 which did not
provide a complete picture of the care rendered by Dr. Laurino in R.B.’s case. The Board
accepted this testimony to find Dr. Laurino in violation of the standard of care. This was
so, even though Dr. Gardner impeached his own opinion when he testified that he does
not always obtain a cardiac consult, though in this case he said that one was required.
Most notably, the Board ignored evidence showing that the patient R.B. did not agree to a
cardiac consult and refused an x-ray or any duplicative tests. We fail to see how Dr.
Laurino could be held to have violated the standard of care when the patient’s efforts
limited the care Dr. Laurino was allowed to provide. There is, as the district court held, a
lack of substantial evidence to support the finding of a violation of the standard of care
with regard to the Board’s findings on this count.
Although not pled in the complaint as a ground for disciplinary action, the Board
found that Dr. Laurino had altered R.B.’s records, based on the testimony of nurse
Messenger, a former employee of Dr. Laurino’s. In making its finding, the Board
undertook to assess the credibility of nurse Messenger, whose testimony (given
telephonically) suggested that the handwritten information appearing on the office EKG
of R.B. had been added only after the peer review proceedings and in fact did not contain
the standard information found on all the EKGs done in Dr. Laurino’s office. The Board
rejected Dr. Laurino’s explanation of the handwriting on the EKG — the office staff,

4 At the time of Dr. Hollopeter’s deposition, A.G.’s office records were unavailable.

8

which is generally responsible for putting the patient information into the machine, was
not on duty when he brought R.B. to the office from the hospital on the morning of
August 29, 1996. The charge of altering records, however, is not supported by the
record.

3. Patient R.C.
Patient R.C. was twenty-two weeks pregnant and passing blood clots when she
first saw Dr. Laurino in his office on February 7, 1996. Shortly thereafter, R.C.
miscarried, and on February 26, 1996, she was seen in the hospital. Dr. Laurino
diagnosed an incomplete abortion and performed a dilation and curettage (D & C) on
R.C.

The Board found that Dr. Laurino violated the standard of care by failing to type
and cross-match R.C. prior to the emergency D & C procedure. All of the testifying
physicians indicated that the standard of care would require typing and cross-matching
only if the patient were hemorrhaging. The evidence in the record, however, was
insufficient to allow the Board to conclude that R.C. was hemorrhaging when the D & C
was performed. Dr. Hollopeter’s testimony, which formed the sole basis for the Board’s
decision, was not reasonable under the circumstances, particularly because Dr. Hollopeter
was present as a proctor at the D & C and would have been within his authority to stop
the procedure pending receipt of the type and cross-match of R.C.’s blood, had it been
required. The Board was also critical of Doctor Laurino’s failure to do a history and
physical on R.C. prior to the procedure. This finding is unjustified in that there is a
history and physical in the record, which is dated April 19, 1996, although it was not
coincident with the D & C and Dr. Laurino testified that he had done the history and
physical earlier. No evidence was presented establishing a standard of care regarding the
time within which a doctor must document his patient’s files. The Board’s findings on
this count are not supported by substantial evidence in the record as a whole.
4. Patient V.D.
V.D., a forty-year old female with a prior hysterectomy, saw Dr. Laurino on July
29, 1996, with a complaint of rectal bleeding. Dr. Laurino obtained a urinalysis to rule
out vaginal bleeding, examined the patient and scheduled a colonoscopy for August 2,
1996. The results of the colonoscopy revealed hemorrhoids, which V.D. did not want

9

removed. In order to find the cause of V.D.’s continuing complaints and to rule out a
bleeding ulcer or tumors, Dr. Laurino ordered an upper gastrointestinal endoscopy
(EGD), which he scheduled for August 21, 1996. The Board found that Dr. Laurino
violated the community standard of care by failing to perform a physical exam of patient
V.D. prior to the EGD.
The operative notes from the colonoscopy indicate that a rectal examination was
performed in anticipation of the procedure that was done outpatient. There was evidence
that the standard of care did not require a new history and physical for a second
procedure within thirty days, as was the case with the EGD. There was also evidence
presented that the standard of care did not require reports from outpatient procedures,
such as colonoscopies and EGDs, to be included in the hospital records. At the time of
Dr. Hollopeter’s deposition, he had not been provided with the history and physical form
that was later made a part of the record. Upon cross-examination, Dr. Gardner admitted
that outpatient records did not need to be part of the hospital records to comply with the
standard of care. The history and physical form itself was evidence of an exam, which
could not be denied. The evidence, therefore, is insufficient to support the Board’s
finding that no physical exam of the patient had been conducted prior to the EGD
procedure.
The Board found another violation of the standard of care in Dr. Laurino’s failure
to obtain pre-operative testing, including stools for O and P, fecal leukoctyes and enteric
pathogens prior to doing the colonoscopy. Dr. Gardner testified that pathology
specimens were obtained, which were negative for abnormalities or organisms. The only
testimony stating the community standard of the care on this point came from Dr.
Gardner, who said Dr. Laurino would have been required to perform an exam to
determine what kind of testing would be needed. Additional testimony on this allegation
was non-existent. Accordingly, the Board’s finding related to pre-operative testing is not
supported by substantial evidence of a violation of the standard of care.
In this case, there was also an issue of Dr. Laurino’s truthfulness concerning the
entry in his office records of July 31, 1996, which noted: “discuss colonoscopy with
patient and an entry on a separate line that read ‘See H & P form.’” The Board found that
Dr. Laurino had falsified the history and physical form to make it appear that he had done

10

an exam prior to the procedures. Because the form had not been presented in the earlier
peer review proceedings and was not the standard form for Dr. Laurino’s history and
physical, the Board concluded the form was suspect notwithstanding that the information
contained on the form was readily verifiable by the patient and very unlikely to have been
made up. The Board’s decision was founded upon the testimony of nurse Messenger
who, without seeing the records in more than two years was able to recall that V.D. was
not seen by Dr. Laurino in his office on July 31, 1996, and that the office notes formerly
contained a “blank space” where the entry “See H & P form” now existed. The Board
found nurse Messenger more credible than Dr. Laurino, rejecting the hearing officer’s
conclusion that the Board’s witnesses failed to show that the exam did not take place.
We agree with the district court’s holding that the Board’s view of nurse Messenger’s
testimony was unreasonable and that Dr. Laurino was improperly being disciplined for a
charge as to which he did not receive notice.
5. Patient K.B.
K.B. saw Dr. Laurino three days after she delivered a seven-pound, four-ounce
baby at home. She presented complaints of fever, body aches, heavy bleeding with clots
and lower abdominal pains. Dr. Laurino testified, and his office notes confirm, that he
conducted a physical exam, obtained a urinalysis from the patient, and prescribed
antibiotics to combat the urinary tract infection (UTI) suggested by the results of the
urinalysis. Dr. Laurino’s notes also indicate a differential diagnosis of UTI or
endometritis and that K.B. refused a pelvic exam.
Two days later, the patient appeared at the emergency room at Syringa Hospital,
with abdominal pain and fever. She was attended by Dr. Gardner at the emergency room,
who requested a catheterized urine sample, but K.B. refused this as well. The nurse’s
notes in the hospital record indicate that Dr. Laurino was called to the ER, but once again
K.B. refused to allow a pelvic exam. Dr. Laurino concluded that K.B.’s appendix was
involved, and he called Dr. Hollopeter to assist if an appendectomy was to be performed.
K.B. agreed to submit to a pelvic exam when persuaded by Dr. Hollopeter that the only
way to ascertain the need for an appendectomy was with a pelvic examination. Dr.
Hollopeter discovered a tear in K.B.’s vaginal wall, and the proposed appendectomy was
called off.

11

The Board found that Dr. Laurino breached the standard of care by not conducting
a pelvic exam on this patient, whom he advised would need an emergency
appendectomy. There was no dispute in the testimony that the standard of care required a
pelvic examination, but Dr. Hollopeter and Dr. Gardner, who were involved in treating
this patient never commented about K.B.’s refusal to submit to a pelvic exam. The Board
failed to take into account the patient’s obstinacy in refusing not only the pelvic
examination but also the fem catheterization, despite the expert testimony indicating that
the patient’s conduct should not lead to a violation of the standard of care by Dr. Laurino.
In this case, the Board again made a determination that Dr. Laurino was not
truthful and concluded that he had falsified his records. The Board relied on the
testimony of nurse Messenger, indicating that Dr. Laurino never had asked patient K.B.
at her appointment in the office to disrobe and consent to a pelvic exam. Nurse
Messenger asserted that the notation in the office records that patient refused a pelvic
exam (which arguably was in different-colored ink) was not originally part of the record
but added subsequent to the peer review proceedings. The Board also considered the
testimony of the patient, K.B., but she could not recall whether she had refused the exam.
As previously stated, the Board maintained an unreasonable view of nurse Messenger’s
testimony and that of K.B., which was of no value whatsoever.
Lastly with respect to patient, K.B., the Board found that Dr. Laurino should have
recognized that the presence of Group A strep from the vaginal culture indicated
endometritis. This finding ignores that from the start of his treatment of K.B., Dr.
Laurino considered endometritis in his working diagnosis. According to two of the
experts, Dr. Laurino’s abdominal examination of K.B. showed no tenderness, which is
usually present with endometritis, and was confirmed only after the lab results were
returned. There is a lack of substantial evidence to support the Board’s finding in this
regard.

6. Patient M.J.
When Dr. Laurino first examined M.J. at the hospital, he noted his impression as
stroke. Given that M.J.’s symptoms subsided within one hour, Dr. Laurino changed his
diagnosis to transient ischemic attack (TIA). M.J.’s case is the only one where the Board
and the hearing officer agreed that Dr. Laurino had violated the standard of care. The

12

hearing officer concluded that Dr. Laurino violated the standard of care by not requesting
a neurological consult on this patient and because he did not document that he had
performed an exam on the carotid arteries. The Board made its own findings rather than
adopting those of the hearing officer.
The Board found that Doctor Laurino should have performed standard diagnostic
tests on M.J., including a carotid duplex study, head CT scan and echocardiogram at the
time of her admission to the hospital, even if it entailed transferring M.J. to another
hospital or facility. Dr. Laurino testified that Grangeville has no CT scans, that carotid
duplex studies are only done in Lewiston, and that he did schedule M.J. for a CT scan.
None of the expert witnesses clearly identified the standard of care. Dr. Gardner testified
that the standard of care was breached by failure to do carotid duplex study and
echocardiogram and that the patient should have been transported for the tests; however,
he also testified that the echocardiogram and the CT scan could have waited until after
discharge from the hospital, thus impeaching his own testimony. Dr. Young (one of Dr.
Laurino’s expert witnesses) testified that the treatment provided by Dr. Laurino was
within the standard of care and that a CT scan could wait until later. Dr. Young asserted
that an echocardiogram is not standard of care for an emerging TIA patient. Dr.
Hollopeter’s opinion was that Dr. Laurino breached the standard of care “by failing to
manage the threat of stroke.” Based upon our review of the record, we find no reliable,
probative and substantial evidence to support the Board’s finding.
The Board found that Dr. Laurino should have charted the presence or absence
of carotid bruits in M.J.’s case and should have consulted with a neurologist. Although
there was evidence that failure to check for carotid bruits would be a breach of the
standard of care, there was no standard testified to with respect to whether it was required
that the findings of such an examination be written on the patient’s record. Dr. Laurino
testified that it was his custom not to write down negative findings, which should not be
interpreted to mean that no examination had been done. From our review of the Board’s
findings, we conclude, as did the district court, that there was no real standard of care set
forth regarding the documentation of negative findings.
Another violation found by the Board in M.J.’s case was based on Dr. Gardner’s
testimony that Dr. Laurino’s prescription of Lisinopril and Nifediprine for stroke was a

13

breach of the standard of care because in stroke patients, the physician should not be
trying to reduce but to maintain blood pressure and follow the patient’s symptoms. The
Board also referred to the 1996 Physicians’ Desk Reference (PDR), which states that
Zestoretic (the brand name of the meds M.J. was taking) is a fixed-dose combination
drug, which is contraindicated for initial therapy. The Board ignored that Dr. Laurino
was not treating M.J. for stroke, but for a TIA, and that he has a degree in pharmacology.
Even though Dr. Laurino assessed M.J.’s blood pressure readings as high, as supported
by a Joint Committee study, there was no agreement as to whether a systolic reading of
144 or 140 constitutes a high reading. Dr. Laurino testified that in a patient such as M.J.,
it was important to monitor her blood pressure in that hypertension is a predisposer to
TIA, which may presage a stroke. Because there was no clear standard of care regarding
required medications for a patient with blood pressure readings such as M.J.’s, there was
insufficient evidence upon which the Board could base its finding of a violation.
7. Patient C.F.
Patient C.F. is a sixty-five-year-old male, who came to Dr. Laurino’s office
complaining of flu and a terrible stomachache that had plagued him for the past year.
The doctor’s office notes reflect an abdominal exam and a history of a change in bowel
movement to four to five times a day and cramping which was relieved with Advil. Dr.
Laurino’s original assessment included possible colitis, flu, and diarrhea. Dr. Laurino
prescribed Amantadine and Flumadine, an antispasmodic to alleviate cramping. In a
follow-up visit, C.F. reported that he was feeling better; the diarrhea had decreased; but
he was still feeling weak. Over about three weeks’ time, C.F.’s symptoms returned
along with a weight loss of nine pounds from the month prior. On C.F.’s February 29,
1996, visit, Dr. Laurino made notes regarding his patient: “weak, anorexia, malaise, a
pain in rectum that is intermittent but never gone and a loss of ten pounds.” Dr. Laurino
scheduled an abdominal ultrasound and a colonoscopy, which did not take place because
C.F. was admitted to the hospital by Dr. Hollopeter on March 2, 1996, when a flex-
sigmoidoscopy revealed that C.F. had colon cancer.
The Board found a violation of the standard of care in Dr. Laurino’s failure to
conduct a physical exam and a rectal exam on the January 22, 1996, initial visit. In
support of this finding were the opinions of Dr. Gardner and Dr. Hollopeter that the

14

community standard of care required a rectal exam of the patient, preferably on the first
visit, considering the patient’s age and long-standing symptoms. Dr. Gardner also
testified that the standard of care required an abdominal exam on each subsequent
appointment. The Board gave little weight to Dr. Laurino’s explanation that an invasive
rectal exam was not indicated for the flu symptoms, which resolved with medication, or
for the stomachache with which C.F. had initially presented. We conclude that sufficient
evidence exists to support the Board’s finding that Dr. Laurino violated the standard of
care in treating C.F.
The Board found a second violation in Dr. Laurino’s prescription of Amantadine
and Flumadine. Consistent with the expert opinions of Dr. Gardner and Dr. Rockwell,
the Board determined that these drugs were of no therapeutic value in this case because
the patient did not have respiratory symptoms. The fact that Dr. Laurino has a
pharmacology degree did not sway the Board to Dr. Laurino’s choice of prescriptions,
nor did the fact that the patient’s flu symptoms had resolved with the medication. From
our review of the record, the non-therapeutic value of the drugs prescribed has not been
established and thus cannot be the basis of a finding by the Board of a violation of
standard of care. As to the Board’s finding of a violation of the standard of care
regarding a requirement that a nurse must witness the patient’s signature on a consent
form prepared by the doctor, there was no standard of care provided. Thus, these findings
are not supported by substantial evidence.
8. Patient A.P.
The patient is a forty-seven-year-old man who was six weeks post angioplasty
when he was seen by Dr. Laurino. On June 10, 1996, Dr. Laurino examined A.P. and ran
tests, which showed no enzymatic changes and no EKG changes. Dr. Laurino diagnosed
that A.P. was suffering from angina, not a heart attack; and when he reported being pain
free, he was discharged. A.P. went to Syringa Hospital on June 17, 1996, complaining of
sudden shortness of breath, dizziness and chest pain. He was admitted to rule out a heart
attack. Dr. Laurino ordered an EKG and cardiac enzymes, which results came back
negative. A.P. became impatient in the hospital waiting for Dr. Laurino to return from
his rounds and discharged himself.

15

The Board found that Dr. Laurino should have monitored A.P. for not less than
six hours on June 10, 1996, after he was admitted to the hospital with lightheadedness
and persistent shortness of breath. The Board does not explain how it determined that six
hours is the benchmark, when all the patient’s tests were normal and there were no signs
of cardiac damage. There is not substantial evidence to support the Board’s finding.
The Board also found that Dr. Laurino should have done a cardiac consult on both
dates, considering the patient’s significant cardiac history. The Board’s finding does not
take into account that the patient’s EKGs were overread by Spokane Cardiology, which
confirmed that A.P. was not suffering a heart attack. Neither the experts nor the Board
with its expertise clearly stated the applicable standard of care, and the Board’s finding of
a violation, therefore, is not supported by the evidence
9. Patient H.M.
The patient had been treated by an orthopedic surgeon in Lewiston for a staph
infection in the knee. Approximately one month later, he went to Dr. Laurino’s office
where the pain in his knee was diagnosed as bursitis and treated with antibiotics. On
February 29, 1996, H.M. was again seen by Dr. Laurino, complaining of pain in both
hips, fever and night sweats. Dr. Laurino’s office records reflect a notation of hip sepsis.
The hospital records of that date indicate that Dr. Laurino ordered a hep-lock to
administer antibiotics and two blood cultures; his plan is listed as “will attempt to isolate
infecting organism by blood cultures at peak of fever, then retreat with antibiotics.” Dr.
Laurino testified that H.M. refused to be hospitalized but agreed to intravenous
antibiotics at the hospital, as prescribed by Dr. Laurino. Dr. Laurino testified that H.M.
was self employed, wanted to stay working, and had financial concerns about being
hospitalized.
The Board found that Doctor Laurino should have consulted with H.M.’s
orthopedic surgeon. The Board also found that Dr. Laurino should have performed a
physical exam and an x-ray on February 29, 1996. Finally, the Board found that Dr.
Laurino’s diagnosis of hip sepsis was an orthopedic condition requiring immediate
treatment, and that he breached the standard of care in delaying treatment. However, the
Board ignored the patient’s testimony that he had refused a consult, a hip culture and an
x-ray and that his condition improved under Dr. Laurino’s care. The Board also ignored

16

the patient’s testimony that Dr. Laurino had examined him on every visit, even though
there is nothing so indicated by the records. We agree with the district court on review of
the Board’s findings that the obstructive efforts of the patient, which in effect tied Dr.
Laurino’s hands, were given no mitigating force in the evaluation of whether Dr. Laurino
met the standard of care in this case. The evidence on this count does not support the
Board’s findings.

III.
CONCLUSION
This Court has reviewed the record and concludes that the Board properly found
two violations of the standard of care by Dr. Laurino. Substantial evidence exists in the
record to support the Board’s findings that Dr. Laurino should have administered oxygen
and oxygen saturations in the case of patient A.G. and should have performed a rectal
exam in the case of patient C.F.
Idaho Code § 67-5279(3) dictates that “[i]f the agency action is not affirmed, it
shall be set aside, in whole or in part, and remanded for further proceedings.” The
proper procedure, therefore, is for the Court in this instance to set aside the decision of
the Board revoking Dr. Laurino’s license and remand the matter to the Board with
directions to determine a properly applicable sanction.
We conclude that the Board acted without a reasonable basis in fact or law,
except with respect to two findings of a breach of the standard of care by Dr. Laurino.
However, because of the mixed results, we decline to grant Dr. Laurino’s request for
attorney fees on this appeal pursuant to I.C. § 12-117. Also, because of the mixed result,
no costs are awarded on appeal.
Justices SCHROEDER, KIDWELL, EISMANN and Justice Pro Tem LANSING,
CONCUR.

17

Lawnwood Med. Ctr., Inc. v. Seeger

Board of Directors Authority

Lawnwood Med. Ctr., Inc. v. Seeger, No. SC07-1300 (Fla. Aug. 28, 2008)

The Supreme Court of Florida affirmed the appellate court and held that a county hospital governance law granted a privilege to a private corporation and, consequently, violated the state’s constitutional prohibition against such an outcome. A “privilege” is a special advantage, benefit or right given. After several disputes with its medical staff, Lawnwood Medical Center (LMC) sought relief from the Florida legislature. The legislature, in turn, enacted a law which only affected LMC’s two hospital facilities. Because the law afforded LMC power in running the hospital outside the usual boundaries of authority, the court concluded that the law granted the hospital a privilege in violation of the state’s constitution. The court also determined that portions of the law could not be preserved by the severability doctrine, considering the statutory scheme was “replete with special benefits and advantages granted to [the hospital].”

 

 

Laredo Med. Grp. v. Jaimes

VICARIOUS LIABILITY

Laredo Med. Grp. v. Jaimes,
No. 04-05-00216-CV (Tex. App. Jan. 31, 2007)

The Court of Appeals of Texas
reversed a lower court judgment which awarded damages against a physician
group, and held that group was not vicariously responsible for a former physician-member
who had resigned prior to causing an injury to a newborn.

The lower court found that the physician group’s counsel had stipulated
that the group would be liable for the judgment against the acting physician
and awarded damages against the group. On appeal, the appellate court rejected
this conclusion, holding that the stipulation was based on an ambiguous exchange
between the group’s counsel and the lower court, and that the lower court
was thus required to disregard it. Because it was undisputed that the acting
physician was not employed by the group on the day he attempted the vaginal
delivery, and the evidence conclusively established that the injury could have
been avoided by performing a C-section, the appellate court held that the group
was not vicariously liable for the physician’s actions as a matter of
law.

 

 

Laurino v. Bd. of Prof’l Discipline of the Idaho State Bd. of Med.

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 27131

JAMES A. LAURINO, M.D.,

Plaintiff-Respondent,

v.

BOARD OF PROFESSIONAL
DISCIPLINE OF THE IDAHO STATE
BOARD OF MEDICINE,

Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)
)
)
)

Boise, February 2002 Term

2002 Opinion No. 56

Filed: May 1, 2002

Frederick C. Lyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of
Idaho, Ada County. Hon. D. Duff McKee, District Judge.

Order revoking medical license, vacated. Board’s findings of two
violations of standard of care, affirmed. Remand for determination of
sanctions.

Uranga & Uranga, Boise, for appellant. Jean R. Uranga argued.

Quane, Smith, Boise, for respondent. Terrence S. Jones argued.

____________________________________

WALTERS, Justice
This is an appeal by the Board of Professional Discipline of the Idaho State Board
of Medicine from a decision of the district court that reversed the Board’s order revoking
James A. Laurino, M.D.’s license to practice medicine. We hold that the Board erred in
revoking Dr. Laurino’s license in light of the evidence presented at the inquiry
concerning Dr. Laurino’s treatment of nine patients. However, because we also hold that
there is substantial, competent evidence supporting the Board’s conclusion that Dr.
Laurino failed to provide proper medical care with respect to two of the patients, we
remand the case for a new determination by the Board as to an appropriate sanction that
should be imposed.
FACTS AND PROCEDURAL BACKGROUND

1

The Board of Medicine filed a complaint against Dr. Laurino in May of 1998,
alleging that Dr. Laurino had provided substandard care in his treatment of nine patients,
who were seen in his general practice in Grangeville, Idaho, during a six-month period.
A hearing officer appointed by the Board heard evidence on the allegations on October
12, 1998, and subsequently issued an exhaustive decision recapping the testimony and
including his findings of fact, conclusions of law and a recommendation.
The hearing officer found only two minor violations of the standard of care with
regard to Dr. Laurino’s care and treatment of patient M.J. The hearing officer deferred to
the Board for a determination of appropriate disciplinary action for the violations but
otherwise recommended dismissal of all of the allegations in the remaining counts.
The Board independently reviewed the decision of the hearing officer and his
recommended dismissal of the complaint, pursuant to I.C. § 67-5244. On November 5,
1999, the Board issued its findings of fact, conclusions of law and final order. The Board
found by clear and convincing evidence on each count that Doctor Laurino’s
management of his patient’s care “did not meet the standard of care taken by other
qualified physicians in the Grangeville community, taking into account Doctor Laurino’s
training, experience and the degree of expertise with which he holds himself out to the
public.” The Board concluded to take “its experience, technical competence and
specialized knowledge in evaluating the evidence, as well as the extensive expert
testimony by local physicians in determining that Dr. Laurino’s conduct does not meet
the standard of care.” Finally, the Board determined that revocation of Dr. Laurino’s
license was the appropriate sanction to administer in the case.
After the Board denied Dr. Laurino’s reconsideration request, Dr. Laurino filed a
petition with the district court for judicial review. The memorandum decision of the
district court reversed the decision of the Board and directed that the disciplinary
complaint against Dr. Laurino be dismissed. The district court held that none of the
Board’s factual findings were supported by any reasonable interpretation of the evidence,
that the Board ignored the testimony of witnesses presented by Dr. Laurino, and that the
Board concluded that Dr. Laurino had altered or falsified records even though such
charges were not a part of the complaint. The Board appealed from the decision of the
district court.

2

STANDARD OF REVIEW
The Idaho Administrative Procedure Act, Idaho Code § 67-5279, sets forth the
standard of review for an appeal from a disciplinary proceeding by the Board of
Medicine. In an appeal from the district court’s decision where the district court was
acting in its appellate capacity in a review under the APA, the Court reviews the agency
record independently of the district court’s decision. Levin v. Idaho State Board of
Medicine, 133 Idaho 413, 987 P.2d 1028 (1999); First Interstate Bank of Idaho, N.A. v.
West, 107 Idaho 851, 693 P.2d 1053 (1984). The rulings of the district court therefore are
not the focus of our review. The Court will defer to the agency’s findings of fact unless
those findings are clearly erroneous. Paul v. Board of Professional Discipline, 134 Idaho
838, 11 P.3d 34 (2000), citing Ferguson v. Board of County Commissioners for Ada
County, 110 Idaho 785, 719 P.2d 1223 (1986). Neither the district court nor this Court on
appeal may substitute its judgment for that of the agency as to the weight of the evidence
presented in the record. I.C. § 67-5279(1); Levin, supra at 417, 979 P.2d at 1032;
Woodfield v. Board of Professional Discipline, 127 Idaho 738, 905 P.2d 1047 (Ct. App.
1995). The agency’s findings must be affirmed unless the findings are not supported by
substantial evidence on the record as a whole, I.C. § 69-5729(3), or the findings are
arbitrary, capricious, or an abuse of discretion, I.C. § 69-5729(2)(d). Any findings made
by the Board based on matters outside the record must be reversed as unsupported by
substantial, competent evidence or as arbitrary and capricious.
I.
ESTABLISHING THE STANDARD OF CARE
The Medical Practices Act provides that a physician is subject to discipline by the
Board for “the provision of health care which fails to meet the standard of health care
provided by other qualified physicians in the same community or similar communities,
taking into account his training, experience and the degree of expertise to which he holds
himself out to the public.” I.C. § 54-1814(7). The language of I.C. § 54-1814(7) has
been held to be similar to the well-accepted definition of medical malpractice, contained
in I.C. § 6-1012, and sufficient to notify medical practitioners that they could be

3

disciplined for failure to conform to community standards. Krueger v. Board of
Professional Discipline, 122 Idaho 577, 836 P.2d 523 (1992); Woodfield v. Board of
Professional Discipline, 127 Idaho 738, 748, 905 P.2d 1047, 1057 (Ct. App. 1995). The
burden of proof in a disciplinary proceeding is the “clear and convincing” standard.
Cooper v. Board of Professional Discipline, 134 Idaho 449, n.3, 4 P.3d 561 n.3 (2000).
The Board contends that the hearing officer measured the conduct of Dr. Laurino
against an incorrect standard of care derived from a misreading of Krueger v.
Professional Discipline, 122 Idaho 577, 836 P.2d 523 (1992). Because of the application
of the erroneous standard, the Board asserts it was justified in rejecting all of the hearing
officer’s findings and conclusions. The Board determined the standards of care in this
case, relying principally upon the testimony of its experts: Dr. Hollopeter, who had
practiced for twenty-five years in Grangeville, and Dr. Gardner, another Grangeville
family care practitioner. Both doctors were on staff at the local hospital, Syringa
Hospital, and were directly involved in peer review proceedings during which they
observed and evaluated Dr. Laurino’s performance and ultimately decided not to grant
hospital privileges to Dr. Laurino.
In Krueger, the Court held that the district court’s reliance on the “consensus of
expert opinion” language1 was misplaced. Krueger, supra at 581, 836 P.2d at 527. The
Court reversed the district court’s finding that the Board’s decision as to patients A
though E would be unconstitutionally vague without a finding that the decision was
supported by a consensus of expert opinion. Id. at 582, 836 P.2d at 528. As the Court
explained in a later case, the Krueger Court upheld “the application of a statutory
standard [I.C.§ 54-1814(7)] based on expert testimony of other physicians.” See
Rincover v. State, 124 Idaho 920, 923, 866 P.2d 177, 180 (1994).
A determination of a violation of the standard of care must be supported by expert
testimony establishing the community’s generally accepted standard of care required of
the physician under the circumstances of each case under scrutiny. Woodfield v. Board of
Professional Discipline, supra. To the extent that the evidence as to the local standard of

1 The consensus language was enunciated in Tuma v. Board of Nursing, 100 Idaho 74, 593 P.2d 711 (1979),
where the Court was addressing the authority conferred upon a board to promulgate rules and regulations
defining unprofessional conduct, quoting the “consensus” language from Reyburn v. Minnesota State
Board of Optometry, 78 N.W.2d 351 (Minn. 1956).

4

care is in conflict, that is a question of the weight, not the admissibility of the evidence.
Kozlowski v. Rush, 121 Idaho 825, 828 P.2d 854 (1992) (Bistline, J., specially
concurring). The weight to be given such expert opinion testimony depends upon the
propriety and reasonableness of the testimony, but the testimony is not binding upon an
experienced and professional board. See Snyder v. State, 480 N.E.2d 496, 498 (Ohio
App. 1984). The Board’s finding of a breach of the standard of care then may be based
on a comparison of the alleged violation against a well-recognized standard, articulated
by the Board, based on the expertise and experience of the member physicians.
Woodfield, 127 Idaho at 749, 905 P.2d at 1058. See also I.C. § 67-5251(5). The Board,
however, may not use its expertise as a substitute for evidence in the record, since the
requirement for administrative decisions based on substantial evidence and reasoned
findings2–which provide the basis for effective judicial review–would become
meaningless if material facts known to or relied upon by the agency did not appear in the
record.

II.
SUBSTANTIAL AND COMPETENT EVIDENCE
The violations that the Board found against Dr. Laurino must be reviewed to
determine whether the evidence in the record as a whole supports the findings,
inferences, and conclusions made by the Board. I.C. § 67-5279(3)(d). Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate and
reasonable to support a conclusion. Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257,
260, 715 P.2d 927, 930 (1985).
In reaching a decision on the sufficiency of the evidence, we also consider the
arguments raised by the Board concerning (1) the real testimony presented by the
Board’s witnesses and (2) the testimony of Dr. Klomp, which had been ruled
inadmissible by the hearing officer but held admissible by the district court.
Real evidence is “evidence given to explain, repel, counteract, or disprove
facts given in evidence by the opposing party.” BLACK’S LAW DICTIONARY (6th
ed.) p. 1267. Introduced to impeach Dr. Laurino’s credibility, the testimony of Nurse
Messenger, patient K.B. and Nancy Kerr could be properly considered real evidence.

2 See I.C. § 67-5248.

5

This testimony raised factual issues as to whether Dr. Laurino had falsified records–a
question that was within the discretion of the hearing officer to resolve and did not
require the expertise of the Board. However, because the Board found the real
witnesses credible, the Board was required to state its reasons for disagreeing with the
determination of the hearing officer.3 We will duly examine the Board’s findings
hereinafter on each count where real evidence was presented.
Dr. Klomp, an obstetrics and gynecology specialist practicing in Boise, admitted
that he did not inquire of a local physician in the Grangeville area to determine the local
community standard. He testified, however, that Dr. Laurino’s care of patients R.C. and
K.B. was within the standard of care applicable in Boise. Although compliance with the
local standard of care insulates the doctor from medical discipline, pursuant to I.C. § 54-
1814(7), evidence that the doctor followed a higher standard should not be barred. If
there is a lower standard practiced locally, for example, in Grangeville, the evidence
should at least be a mitigating factor for disciplinary sanction. We conclude that the
testimony of Dr. Klomp concerning the standard of care in Boise was a matter that
properly could be considered by the Board.
Next, we turn to the Board’s findings on each of the nine counts.
1. Patient A.G.
The Board found that Dr. Laurino violated the standard of care by not ordering a
chest x-ray, by not administering oxygen, by not monitoring oxygen saturations, and by
not ordering an EKG upon A.G.’s admission to the hospital. The Board also found a
violation in the standard of care for Dr. Laurino not to have transported to the hospital the
EKG done in his office earlier the same day, to be included in the hospital record. As to
the latter violation, the failure to transport the office EKG to the hospital, it is not
supported by substantial and competent evidence particularly in view of Dr. Young’s
undisputed testimony that there was no standard of care on the transport of office test
results to the hospital.

3 The Idaho Court of Appeals has stated:
Generally speaking, findings based on witness credibility depend critically on
observation of the witness. Therefore, “the [hearing officer’s] decision to give or deny
credit to a particular witness’ testimony should not be reversed absent an adequate
explanation of the grounds for the reviewing body’s source of disagreement with the
[hearing officer.]” [Citations omitted.]

6

The patient, a sixty-nine-year-old man with previously diagnosed congestive heart
failure, was seen first in Dr. Laurino’s office on August 29, 1996, and then admitted to
the hospital. There was evidence that a chest x-ray and an EKG were taken in the office
by Dr. Laurino’s nurse Kashmitter. The x-ray was produced for the disciplinary hearing;
both the nurse and the patient testified that it had been taken, although the office records
contained no reference to any x-ray or billing therefor. In concluding that Dr. Laurino
had violated the standard of care requiring a chest x-ray, the Board chose not to believe
either the testimony of Dr. Laurino or nurse Kashmitter that an x-ray had been taken.
Instead, because Dr. Gardner testified that the x-ray had not been produced at the earlier
peer review proceedings, the Board discredited Dr. Laurino’s testimony and concluded
that Dr. Laurino was being untruthful and had fabricated the x-ray. There is insufficient
evidence to support the Board’s conclusion that Dr. Laurino fabricated the x-ray.
The Board found a violation of the standard of care based on the testimony of
Dr. Gardner, Dr. Hollopeter, and Dr. Maier that Dr. Laurino should have administered
oxygen to A.G. and monitored his oxygen saturations. Although there was evidence from
Dr. Rockwell, one of Dr. Laurino’s witnesses who testified that oxygen saturations are
not commonly done, and from A.G.’s cardiologist, who did not recommend that oxygen
be administered or oxygen saturations be done, the Board’s findings are supported by the
evidence. Therefore, we affirm the violation found by the Board regarding Dr. Laurino’s
failure to administer oxygen to A.G., even though there is evidence to the contrary.
2. Patient R.B.
This patient had had two prior heart attacks or myocardial infarctions (MI). He
met Dr. Laurino at Syringa Hospital complaining of chest heaviness and shortness of
breath. R.B. walked to Dr. Laurino’s office near the hospital, where he was first
examined and then was referred back to the hospital for additional tests. Dr. Laurino’s
office notes show that R.B.’s presenting symptoms resolved themselves and that the EKG
done in Dr. Laurino’s office failed to indicate any new abnormalities. The charge in the
complaint alleged that Dr. Laurino “failed to follow routine evaluative procedures.”
The Board found in this case that Dr. Laurino had violated the standard of care by
not keeping R.B. in the hospital for at least six hours to monitor his heart condition. No

Woodfield v. Board of Professional Discipline, 127 Idaho 738, 746, 905 P.2d 1047, 1055 (Ct. App. 1995).

7

evidence was presented, however, as to how much time is required for a patient with a
cardiac history to be monitored before being discharged after his symptoms have been
ameliorated and all tests results are negative for MI. Thus, the applicable standard of
care was not proven, and Dr. Laurino cannot be held to be in violation of a standard that
the experts failed to define.
The Board found that on R.B.’s admission to the hospital, it was also a violation
of the standard of care for Doctor Laurino not to conduct serial EKGs and serial enzymes,
and not to do a cardiac consult. As stated earlier, one EKG was done at Dr. Laurino’s
office and a second EKG was done at the hospital. The two EKGs did not satisfy Dr.
Gardner, who testified that it was a violation of the standard of care not to conduct serial
EKGs and serial enzymes. Dr. Gardner’s opinion did not factor in the patient’s decision
to refuse further tests when the initial results were negative for another heart attack. Dr.
Hollopeter’s opinion, he testified, was based only on the hospital records,4 which did not
provide a complete picture of the care rendered by Dr. Laurino in R.B.’s case. The Board
accepted this testimony to find Dr. Laurino in violation of the standard of care. This was
so, even though Dr. Gardner impeached his own opinion when he testified that he does
not always obtain a cardiac consult, though in this case he said that one was required.
Most notably, the Board ignored evidence showing that the patient R.B. did not agree to a
cardiac consult and refused an x-ray or any duplicative tests. We fail to see how Dr.
Laurino could be held to have violated the standard of care when the patient’s efforts
limited the care Dr. Laurino was allowed to provide. There is, as the district court held, a
lack of substantial evidence to support the finding of a violation of the standard of care
with regard to the Board’s findings on this count.
Although not pled in the complaint as a ground for disciplinary action, the Board
found that Dr. Laurino had altered R.B.’s records, based on the testimony of nurse
Messenger, a former employee of Dr. Laurino’s. In making its finding, the Board
undertook to assess the credibility of nurse Messenger, whose testimony (given
telephonically) suggested that the handwritten information appearing on the office EKG
of R.B. had been added only after the peer review proceedings and in fact did not contain
the standard information found on all the EKGs done in Dr. Laurino’s office. The Board

4 At the time of Dr. Hollopeter’s deposition, A.G.’s office records were unavailable.

8

rejected Dr. Laurino’s explanation of the handwriting on the EKG — the office staff,
which is generally responsible for putting the patient information into the machine, was
not on duty when he brought R.B. to the office from the hospital on the morning of
August 29, 1996. The charge of altering records, however, is not supported by the
record.

3. Patient R.C.
Patient R.C. was twenty-two weeks pregnant and passing blood clots when she
first saw Dr. Laurino in his office on February 7, 1996. Shortly thereafter, R.C.
miscarried, and on February 26, 1996, she was seen in the hospital. Dr. Laurino
diagnosed an incomplete abortion and performed a dilation and curettage (D & C) on
R.C.

The Board found that Dr. Laurino violated the standard of care by failing to type
and cross-match R.C. prior to the emergency D & C procedure. All of the testifying
physicians indicated that the standard of care would require typing and cross-matching
only if the patient were hemorrhaging. The evidence in the record, however, was
insufficient to allow the Board to conclude that R.C. was hemorrhaging when the D & C
was performed. Dr. Hollopeter’s testimony, which formed the sole basis for the Board’s
decision, was not reasonable under the circumstances, particularly because Dr. Hollopeter
was present as a proctor at the D & C and would have been within his authority to stop
the procedure pending receipt of the type and cross-match of R.C.’s blood, had it been
required. The Board was also critical of Doctor Laurino’s failure to do a history and
physical on R.C. prior to the procedure. This finding is unjustified in that there is a
history and physical in the record, which is dated April 19, 1996, although it was not
coincident with the D & C and Dr. Laurino testified that he had done the history and
physical earlier. No evidence was presented establishing a standard of care regarding the
time within which a doctor must document his patient’s files. The Board’s findings on
this count are not supported by substantial evidence in the record as a whole.
4. Patient V.D.
V.D., a forty-year old female with a prior hysterectomy, saw Dr. Laurino on July
29, 1996, with a complaint of rectal bleeding. Dr. Laurino obtained a urinalysis to rule
out vaginal bleeding, examined the patient and scheduled a colonoscopy for August 2,

9

1996. The results of the colonoscopy revealed hemorrhoids, which V.D. did not want
removed. In order to find the cause of V.D.’s continuing complaints and to rule out a
bleeding ulcer or tumors, Dr. Laurino ordered an upper gastrointestinal endoscopy
(EGD), which he scheduled for August 21, 1996. The Board found that Dr. Laurino
violated the community standard of care by failing to perform a physical exam of patient
V.D. prior to the EGD.
The operative notes from the colonoscopy indicate that a rectal examination was
performed in anticipation of the procedure that was done outpatient. There was evidence
that the standard of care did not require a new history and physical for a second
procedure within thirty days, as was the case with the EGD. There was also evidence
presented that the standard of care did not require reports from outpatient procedures,
such as colonoscopies and EGDs, to be included in the hospital records. At the time of
Dr. Hollopeter’s deposition, he had not been provided with the history and physical form
that was later made a part of the record. Upon cross-examination, Dr. Gardner admitted
that outpatient records did not need to be part of the hospital records to comply with the
standard of care. The history and physical form itself was evidence of an exam, which
could not be denied. The evidence, therefore, is insufficient to support the Board’s
finding that no physical exam of the patient had been conducted prior to the EGD
procedure.
The Board found another violation of the standard of care in Dr. Laurino’s failure
to obtain pre-operative testing, including stools for O and P, fecal leukoctyes and enteric
pathogens prior to doing the colonoscopy. Dr. Gardner testified that pathology
specimens were obtained, which were negative for abnormalities or organisms. The only
testimony stating the community standard of the care on this point came from Dr.
Gardner, who said Dr. Laurino would have been required to perform an exam to
determine what kind of testing would be needed. Additional testimony on this allegation
was non-existent. Accordingly, the Board’s finding related to pre-operative testing is not
supported by substantial evidence of a violation of the standard of care.
In this case, there was also an issue of Dr. Laurino’s truthfulness concerning the
entry in his office records of July 31, 1996, which noted: “discuss colonoscopy with
patient and an entry on a separate line that read ‘See H & P form.’” The Board found that

10

Dr. Laurino had falsified the history and physical form to make it appear that he had done
an exam prior to the procedures. Because the form had not been presented in the earlier
peer review proceedings and was not the standard form for Dr. Laurino’s history and
physical, the Board concluded the form was suspect notwithstanding that the information
contained on the form was readily verifiable by the patient and very unlikely to have been
made up. The Board’s decision was founded upon the testimony of nurse Messenger
who, without seeing the records in more than two years was able to recall that V.D. was
not seen by Dr. Laurino in his office on July 31, 1996, and that the office notes formerly
contained a “blank space” where the entry “See H & P form” now existed. The Board
found nurse Messenger more credible than Dr. Laurino, rejecting the hearing officer’s
conclusion that the Board’s witnesses failed to show that the exam did not take place.
We agree with the district court’s holding that the Board’s view of nurse Messenger’s
testimony was unreasonable and that Dr. Laurino was improperly being disciplined for a
charge as to which he did not receive notice.
5. Patient K.B.
K.B. saw Dr. Laurino three days after she delivered a seven-pound, four-ounce
baby at home. She presented complaints of fever, body aches, heavy bleeding with clots
and lower abdominal pains. Dr. Laurino testified, and his office notes confirm, that he
conducted a physical exam, obtained a urinalysis from the patient, and prescribed
antibiotics to combat the urinary tract infection (UTI) suggested by the results of the
urinalysis. Dr. Laurino’s notes also indicate a differential diagnosis of UTI or
endometritis and that K.B. refused a pelvic exam.
Two days later, the patient appeared at the emergency room at Syringa Hospital,
with abdominal pain and fever. She was attended by Dr. Gardner at the emergency room,
who requested a catheterized urine sample, but K.B. refused this as well. The nurse’s
notes in the hospital record indicate that Dr. Laurino was called to the ER, but once again
K.B. refused to allow a pelvic exam. Dr. Laurino concluded that K.B.’s appendix was
involved, and he called Dr. Hollopeter to assist if an appendectomy was to be performed.
K.B. agreed to submit to a pelvic exam when persuaded by Dr. Hollopeter that the only
way to ascertain the need for an appendectomy was with a pelvic examination. Dr.

11

Hollopeter discovered a tear in K.B.’s vaginal wall, and the proposed appendectomy was
called off.
The Board found that Dr. Laurino breached the standard of care by not conducting
a pelvic exam on this patient, whom he advised would need an emergency
appendectomy. There was no dispute in the testimony that the standard of care required a
pelvic examination, but Dr. Hollopeter and Dr. Gardner, who were involved in treating
this patient never commented about K.B.’s refusal to submit to a pelvic exam. The Board
failed to take into account the patient’s obstinacy in refusing not only the pelvic
examination but also the fem catheterization, despite the expert testimony indicating that
the patient’s conduct should not lead to a violation of the standard of care by Dr. Laurino.
In this case, the Board again made a determination that Dr. Laurino was not
truthful and concluded that he had falsified his records. The Board relied on the
testimony of nurse Messenger, indicating that Dr. Laurino never had asked patient K.B.
at her appointment in the office to disrobe and consent to a pelvic exam. Nurse
Messenger asserted that the notation in the office records that patient refused a pelvic
exam (which arguably was in different-colored ink) was not originally part of the record
but added subsequent to the peer review proceedings. The Board also considered the
testimony of the patient, K.B., but she could not recall whether she had refused the exam.
As previously stated, the Board maintained an unreasonable view of nurse Messenger’s
testimony and that of K.B., which was of no value whatsoever.
Lastly with respect to patient, K.B., the Board found that Dr. Laurino should have
recognized that the presence of Group A strep from the vaginal culture indicated
endometritis. This finding ignores that from the start of his treatment of K.B., Dr.
Laurino considered endometritis in his working diagnosis. According to two of the
experts, Dr. Laurino’s abdominal examination of K.B. showed no tenderness, which is
usually present with endometritis, and was confirmed only after the lab results were
returned. There is a lack of substantial evidence to support the Board’s finding in this
regard.

6. Patient M.J.
When Dr. Laurino first examined M.J. at the hospital, he noted his impression as
stroke. Given that M.J.’s symptoms subsided within one hour, Dr. Laurino changed his

12

diagnosis to transient ischemic attack (TIA). M.J.’s case is the only one where the Board
and the hearing officer agreed that Dr. Laurino had violated the standard of care. The
hearing officer concluded that Dr. Laurino violated the standard of care by not requesting
a neurological consult on this patient and because he did not document that he had
performed an exam on the carotid arteries. The Board made its own findings rather than
adopting those of the hearing officer.
The Board found that Doctor Laurino should have performed standard diagnostic
tests on M.J., including a carotid duplex study, head CT scan and echocardiogram at the
time of her admission to the hospital, even if it entailed transferring M.J. to another
hospital or facility. Dr. Laurino testified that Grangeville has no CT scans, that carotid
duplex studies are only done in Lewiston, and that he did schedule M.J. for a CT scan.
None of the expert witnesses clearly identified the standard of care. Dr. Gardner testified
that the standard of care was breached by failure to do carotid duplex study and
echocardiogram and that the patient should have been transported for the tests; however,
he also testified that the echocardiogram and the CT scan could have waited until after
discharge from the hospital, thus impeaching his own testimony. Dr. Young (one of Dr.
Laurino’s expert witnesses) testified that the treatment provided by Dr. Laurino was
within the standard of care and that a CT scan could wait until later. Dr. Young asserted
that an echocardiogram is not standard of care for an emerging TIA patient. Dr.
Hollopeter’s opinion was that Dr. Laurino breached the standard of care “by failing to
manage the threat of stroke.” Based upon our review of the record, we find no reliable,
probative and substantial evidence to support the Board’s finding.
The Board found that Dr. Laurino should have charted the presence or absence
of carotid bruits in M.J.’s case and should have consulted with a neurologist. Although
there was evidence that failure to check for carotid bruits would be a breach of the
standard of care, there was no standard testified to with respect to whether it was required
that the findings of such an examination be written on the patient’s record. Dr. Laurino
testified that it was his custom not to write down negative findings, which should not be
interpreted to mean that no examination had been done. From our review of the Board’s
findings, we conclude, as did the district court, that there was no real standard of care set
forth regarding the documentation of negative findings.

13

Another violation found by the Board in M.J.’s case was based on Dr. Gardner’s
testimony that Dr. Laurino’s prescription of Lisinopril and Nifediprine for stroke was a
breach of the standard of care because in stroke patients, the physician should not be
trying to reduce but to maintain blood pressure and follow the patient’s symptoms. The
Board also referred to the 1996 Physicians’ Desk Reference (PDR), which states that
Zestoretic (the brand name of the meds M.J. was taking) is a fixed-dose combination
drug, which is contraindicated for initial therapy. The Board ignored that Dr. Laurino
was not treating M.J. for stroke, but for a TIA, and that he has a degree in pharmacology.
Even though Dr. Laurino assessed M.J.’s blood pressure readings as high, as supported
by a Joint Committee study, there was no agreement as to whether a systolic reading of
144 or 140 constitutes a high reading. Dr. Laurino testified that in a patient such as M.J.,
it was important to monitor her blood pressure in that hypertension is a predisposer to
TIA, which may presage a stroke. Because there was no clear standard of care regarding
required medications for a patient with blood pressure readings such as M.J.’s, there was
insufficient evidence upon which the Board could base its finding of a violation.
7. Patient C.F.
Patient C.F. is a sixty-five-year-old male, who came to Dr. Laurino’s office
complaining of flu and a terrible stomachache that had plagued him for the past year.
The doctor’s office notes reflect an abdominal exam and a history of a change in bowel
movement to four to five times a day and cramping which was relieved with Advil. Dr.
Laurino’s original assessment included possible colitis, flu, and diarrhea. Dr. Laurino
prescribed Amantadine and Flumadine, an antispasmodic to alleviate cramping. In a
follow-up visit, C.F. reported that he was feeling better; the diarrhea had decreased; but
he was still feeling weak. Over about three weeks’ time, C.F.’s symptoms returned
along with a weight loss of nine pounds from the month prior. On C.F.’s February 29,
1996, visit, Dr. Laurino made notes regarding his patient: “weak, anorexia, malaise, a
pain in rectum that is intermittent but never gone and a loss of ten pounds.” Dr. Laurino
scheduled an abdominal ultrasound and a colonoscopy, which did not take place because
C.F. was admitted to the hospital by Dr. Hollopeter on March 2, 1996, when a flex-
sigmoidoscopy revealed that C.F. had colon cancer.

14

The Board found a violation of the standard of care in Dr. Laurino’s failure to
conduct a physical exam and a rectal exam on the January 22, 1996, initial visit. In
support of this finding were the opinions of Dr. Gardner and Dr. Hollopeter that the
community standard of care required a rectal exam of the patient, preferably on the first
visit, considering the patient’s age and long-standing symptoms. Dr. Gardner also
testified that the standard of care required an abdominal exam on each subsequent
appointment. The Board gave little weight to Dr. Laurino’s explanation that an invasive
rectal exam was not indicated for the flu symptoms, which resolved with medication, or
for the stomachache with which C.F. had initially presented. We conclude that sufficient
evidence exists to support the Board’s finding that Dr. Laurino violated the standard of
care in treating C.F.
The Board found a second violation in Dr. Laurino’s prescription of Amantadine
and Flumadine. Consistent with the expert opinions of Dr. Gardner and Dr. Rockwell,
the Board determined that these drugs were of no therapeutic value in this case because
the patient did not have respiratory symptoms. The fact that Dr. Laurino has a
pharmacology degree did not sway the Board to Dr. Laurino’s choice of prescriptions,
nor did the fact that the patient’s flu symptoms had resolved with the medication. From
our review of the record, the non-therapeutic value of the drugs prescribed has not been
established and thus cannot be the basis of a finding by the Board of a violation of
standard of care. As to the Board’s finding of a violation of the standard of care
regarding a requirement that a nurse must witness the patient’s signature on a consent
form prepared by the doctor, there was no standard of care provided. Thus, these findings
are not supported by substantial evidence.
8. Patient A.P.
The patient is a forty-seven-year-old man who was six weeks post angioplasty
when he was seen by Dr. Laurino. On June 10, 1996, Dr. Laurino examined A.P. and ran
tests, which showed no enzymatic changes and no EKG changes. Dr. Laurino diagnosed
that A.P. was suffering from angina, not a heart attack; and when he reported being pain
free, he was discharged. A.P. went to Syringa Hospital on June 17, 1996, complaining of
sudden shortness of breath, dizziness and chest pain. He was admitted to rule out a heart
attack. Dr. Laurino ordered an EKG and cardiac enzymes, which results came back

15

negative. A.P. became impatient in the hospital waiting for Dr. Laurino to return from
his rounds and discharged himself.
The Board found that Dr. Laurino should have monitored A.P. for not less than
six hours on June 10, 1996, after he was admitted to the hospital with lightheadedness
and persistent shortness of breath. The Board does not explain how it determined that six
hours is the benchmark, when all the patient’s tests were normal and there were no signs
of cardiac damage. There is not substantial evidence to support the Board’s finding.
The Board also found that Dr. Laurino should have done a cardiac consult on both
dates, considering the patient’s significant cardiac history. The Board’s finding does not
take into account that the patient’s EKGs were overread by Spokane Cardiology, which
confirmed that A.P. was not suffering a heart attack. Neither the experts nor the Board
with its expertise clearly stated the applicable standard of care, and the Board’s finding of
a violation, therefore, is not supported by the evidence
9. Patient H.M.
The patient had been treated by an orthopedic surgeon in Lewiston for a staph
infection in the knee. Approximately one month later, he went to Dr. Laurino’s office
where the pain in his knee was diagnosed as bursitis and treated with antibiotics. On
February 29, 1996, H.M. was again seen by Dr. Laurino, complaining of pain in both
hips, fever and night sweats. Dr. Laurino’s office records reflect a notation of hip sepsis.
The hospital records of that date indicate that Dr. Laurino ordered a hep-lock to
administer antibiotics and two blood cultures; his plan is listed as “will attempt to isolate
infecting organism by blood cultures at peak of fever, then retreat with antibiotics.” Dr.
Laurino testified that H.M. refused to be hospitalized but agreed to intravenous
antibiotics at the hospital, as prescribed by Dr. Laurino. Dr. Laurino testified that H.M.
was self employed, wanted to stay working, and had financial concerns about being
hospitalized.
The Board found that Doctor Laurino should have consulted with H.M.’s
orthopedic surgeon. The Board also found that Dr. Laurino should have performed a
physical exam and an x-ray on February 29, 1996. Finally, the Board found that Dr.
Laurino’s diagnosis of hip sepsis was an orthopedic condition requiring immediate
treatment, and that he breached the standard of care in delaying treatment. However, the

16

Board ignored the patient’s testimony that he had refused a consult, a hip culture and an
x-ray and that his condition improved under Dr. Laurino’s care. The Board also ignored
the patient’s testimony that Dr. Laurino had examined him on every visit, even though
there is nothing so indicated by the records. We agree with the district court on review of
the Board’s findings that the obstructive efforts of the patient, which in effect tied Dr.
Laurino’s hands, were given no mitigating force in the evaluation of whether Dr. Laurino
met the standard of care in this case. The evidence on this count does not support the
Board’s findings.

III.
CONCLUSION
This Court has reviewed the record and concludes that the Board properly found
two violations of the standard of care by Dr. Laurino. Substantial evidence exists in the
record to support the Board’s findings that Dr. Laurino should have administered oxygen
and oxygen saturations in the case of patient A.G. and should have performed a rectal
exam in the case of patient C.F.
Idaho Code § 67-5279(3) dictates that “[i]f the agency action is not affirmed, it
shall be set aside, in whole or in part, and remanded for further proceedings.” The
proper procedure, therefore, is for the Court in this instance to set aside the decision of
the Board revoking Dr. Laurino’s license and remand the matter to the Board with
directions to determine a properly applicable sanction.
We conclude that the Board acted without a reasonable basis in fact or law,
except with respect to two findings of a breach of the standard of care by Dr. Laurino.
However, because of the mixed results, we decline to grant Dr. Laurino’s request for
attorney fees on this appeal pursuant to I.C. § 12-117. Also, because of the mixed result,
no costs are awarded on appeal.
Justices SCHROEDER, KIDWELL, EISMANN and Justice Pro Tem LANSING,
CONCUR.

17

Lawnwood Med. Ctr., Inc. v. Seeger

Supreme Court of Florida

____________

No. SC07-1300
____________

LAWNWOOD MEDICAL CENTER, INC., etc.,
Appellant,

vs.

RANDALL SEEGER, M.D., etc.,
Appellee.

[August 28, 2008]

PARIENTE, J.

The issue before us is whether a special law passed by the Legislature

violates the constitutional prohibition against special laws that grant a “privilege to

a private corporation” set forth in article III, section 11(a)(12), of the Florida

Constitution. Both the trial court and the First District Court of Appeal held that

chapter 2003-372, Laws of Florida, entitled the “St. Lucie County Hospital

Governance Law” (HGL), violated this constitutional provision. See Lawnwood

Med. Ctr., Inc. v. Seeger, 959 So. 2d 1222 (Fla. 1st DCA 2007). Because the HGL

was declared unconstitutional, this Court is mandated to review this case under

article V, section 3(b)(1), of the Florida Constitution. The parties do not dispute

that the HGL is a special law applicable to private corporations only in St. Lucie

County; instead, they dispute whether the HGL grants a privilege to a private

corporation. 1 As more fully explained in this opinion, we conclude that the HGL

impermissibly provides a privilege to Lawnwood Medical Center, Inc., a private

corporation. Accordingly, we affirm the decision of the First District holding the

law unconstitutional. 2

FACTS AND PROCEDURAL HISTORY

Lawnwood Medical Center, Inc., is a for-profit corporation that owns and

operates Lawnwood Regional Medical Center and Heart Institute in St. Lucie

County, Florida. The corporation operates the hospital through its Board of

Directors and through delegation of duties to the corporation’s officers and Board

of Trustees (“Board”). The Board’s bylaws, which were adopted in 1988, state

that the Board has final decision-making authority in the areas of credentialing,

1. The American Medical Association, the Florida Medical Association and
the Association of American Physicians and Surgeons submitted amicus briefs in
support of the contention that the HGL unconstitutionally grants Appellant,
Lawnwood Medical Center, Inc., a privilege.

2. Lawnwood also contends that the HGL does not unconstitutionally
impair the obligations of contracts, does not impermissibly amend a statute by
implication in violation of article III, section 6, of the Florida Constitution, and
does not violate equal protection guarantees of the Florida and federal
constitutions. Because we answer this question based on article III, section
11(a)(12), of the Florida Constitution, we do not reach these remaining points.

– 2 –

peer review, and quality assurance after considering the recommendations of the

medical staff. In 1993, the medical staff at Lawnwood adopted the Medical Staff

Bylaws, which were subsequently approved by the Board. The adoption of the

Medical Staff Bylaws, although not the specific terms, was a requirement for

Lawnwood to maintain its accreditation through the Joint Commission for the

Accreditation of Healthcare Organizations. The Medical Staff Bylaws state its

purpose as providing “for the organization of the Medical Staff of Lawnwood

Regional Medical Center to provide a framework of self-government in order to

permit the Medical Staff to discharge its responsibilities in matters involving the

quality of medical care and to govern the orderly resolution of those purposes.”

After adoption of the Medical Staff Bylaws, several disputes arose between

Lawnwood and the medical staff which generated multiple lawsuits. One

controversy involved the medical services rendered by two pathologists, Dr.

Leonard Walker and Dr. John Minarcik. Lawnwood requested that the medical

staff, through the Medical Executive Committee (MEC), 3 conduct peer review as

to Dr. Walker and Dr. Minarcik based on its assertion of their commission of

3. The Medical Executive Committee is composed of members of the

medical staff. The committee’s duties include making “recommendations to the
Board on hospital management matters and other matters that may affect the
quality of care” and “to review the Bylaws, rules and regulations of the medical
staff as necessary and recommend such changes thereto as may be necessary or
desirable.” Medical Staff Bylaws, art. V, pt. B.

– 3 –

health care fraud and a history of misdiagnoses. The parties dispute whether the

medical staff initiated peer review procedures regarding the pathologists, but it is

undisputed that the staff did not recommend any disciplinary action against the

doctors. The Board then summarily suspended the privileges of Dr. Walker and

Dr. Minarcik, but their privileges were reinstated by the trial court in a separate

lawsuit filed by the doctors. See Lloyd v. Lawnwood Med. Ctr., Inc., No. 99-CA-

001180BC, 2000 WL 309305, at *4 (Fla. 19th Cir. Ct. Feb. 16, 2000) (citing

Walker v. Lawnwood Med. Ctr., Inc., No. 99-159 CA 03 (Fla. 19th Cir. Ct. 1999)

(order granting preliminary injunction)) aff’d, 773 So. 2d 114 (Fla. 4th DCA

2000). The trial court order in Walker enumerated various options other than

Lawnwood’s unilateral suspension of the doctors that Lawnwood could utilize if it

believed that the MEC was not discharging its responsibilities regarding peer

review. The trial court’s order was affirmed by the Fourth District Court of Appeal

without opinion. Lawnwood Reg’l Med. Ctr. v. Walker, 746 So. 2d 459 (Fla. 4th

DCA 1999).

Instead of following any of the options set out by the trial court in Walker,

Lawnwood summarily removed the elected medical staff officers and the MEC.

Once again, Lawnwood’s unilateral actions were challenged in court. The trial

court reinstated the individuals and again stated the legal options Lawnwood had

available if it believed that the MEC was failing to “comply with the policies,

– 4 –

procedures, or directives of the risk management program or any quality assurance

committees of the hospital” pursuant to section 395.0193(3)(g), Florida Statutes

(1999). Lloyd, 2000 WL 309305, at *4 n.9. Instead of utilizing any of those

options, the Lawnwood Board adopted new bylaws, which provided in part that the

Board could unilaterally amend the Medical Staff Bylaws after exhausting

reasonable attempts to gain medical staff approval. However, this new provision

directly conflicted with the existing Medical Staff Bylaws, which required a vote

of sixty percent or more of the medical staff for any substantive amendment. Thus,

the medical staff deemed the new provision invalid.

At this point, Lawnwood sought relief from the Legislature. In 2003, the

Legislature enacted the HGL as a special law. 4 It is uncontroverted that the special

law affected only the two private hospitals in St. Lucie County, which are both

owned by the same private parent corporation. After enactment of the law, the

Board presented the medical staff with proposed amendments to the Medical Staff

Bylaws, this time to reflect the provisions of the HGL, but the medical staff

rejected the amendments.

4. Whether the HGL was validly enacted is not contested in the instant case.
The parties do not address the issue and the trial court found in its Summary Final
Judgment that the law was properly enacted, stating “[t]here is no dispute
regarding whether the Hospital Governance Law meets the procedural
requirements of a special law; it was properly noticed as a special law, and enacted
as one.”

– 5 –

Lawnwood then brought a declaratory judgment action, seeking to have the

HGL declared constitutional. 5 Dr. Randall Seeger, as president of the medical

staff, opposed the Board’s petition and both parties filed motions for summary

judgment. In its Summary Final Judgment, the trial court first questioned whether

a “special act is a constitutionally permissible method for affecting the internal

business affairs of a private corporation.” Without reaching that basic question,

the trial court then proceeded to find the HGL unconstitutional on four grounds: (1)

the law provided a privilege to a private corporation in violation of article III,

section 11(a)(12), of the Florida Constitution; (2) the law unconstitutionally

impaired the contract between the medical staff and the Board; (3) the law

amended section 395.0193, Florida Statutes, by implication and did not reference

the amendment in the law’s title, in violation of article III, section 6, of the Florida

Constitution; and (4) the law violated the equal protection clauses of the state and

federal constitutions by creating two classes of hospitals—the two private hospitals

in St. Lucie County and all other hospitals in the state. 6

5. The Florida Attorney General was initially joined as a party, but declined
to defend the statute’s constitutionality and the trial court dismissed him as a party.
The Attorney General was not a party to the First District proceeding, nor is he a
party before this Court.

6. The second hospital, St. Lucie Medical Center, also a corporately owned
for-profit hospital, is not a party to this litigation.

– 6 –

On appeal, the First District concluded that the HGL “dramatically alters

many of the rights and obligations specified in the contract between the appellant’s

medical staff and board of trustees,” constituting an impermissible privilege and an

impermissible impairment of contract. Lawnwood, 959 So. 2d at 1224. The

district court further concluded that the “legislation was not required to protect the

public health, ensure the quality of care at Lawnwood, or accomplish some other

legitimate public purpose.” Id. It thus affirmed the trial court’s rulings on the

privilege and impairment of contract grounds and declined to address the other

arguments. 7 Lawnwood now appeals the First District’s holding that the HGL is

unconstitutional.

ANALYSIS

Standard of Review

This Court reviews de novo a lower court’s ruling on the constitutionality of

a statute. Fla. Dep’t of Children & Families v. F.L., 880 So. 2d 602, 607 (Fla.

2004). We do not take lightly a contention that a statute passed by the Legislature

is unconstitutional and we start with the well-established principle that a legislative

enactment is presumed to be constitutional. See Fla. Dep’t of Revenue v. City of

Gainesville, 918 So. 2d 250, 256 (Fla. 2005). In this case, however, the power of

7. Judge Benton joined in only that portion of the opinion holding the law
unconstitutional as granting a privilege to a private corporation. Lawnwood, 959
So. 2d at 1225 (Benton, J., concurring specially).

– 7 –

the Legislature is limited by the Florida Constitution itself, which prohibits the

Legislature from passing certain special laws. 8 Specifically, article III, section

8. Article III, section 11, of the Florida Constitution states in full:

(a) There shall be no special law or general law of local
application pertaining to:
(1) election, jurisdiction or duties of officers, except officers of
municipalities, chartered counties, special districts or local
governmental agencies;
(2) assessment or collection of taxes for state or county
purposes, including extension of time therefor, relief of tax officers
from due performance of their duties, and relief of their sureties from
liability;
(3) rules of evidence in any court;
(4) punishment for crime;
(5) petit juries, including compensation of jurors, except
establishment of jury commissions;
(6) change of civil or criminal venue;
(7) conditions precedent to bringing any civil or criminal
proceedings, or limitations of time therefor;
(8) refund of money legally paid or remission of fines, penalties
or forfeitures;
(9) creation, enforcement, extension or impairment of liens
based on private contracts, or fixing of interest rates on private
contracts;
(10) disposal of public property, including any interest therein,
for private purposes;
(11) vacation of roads;
(12) private incorporation or grant of privilege to a private
corporation;
(13) effectuation of invalid deeds, wills or other instruments, or
change in the law of descent;
(14) change of name of any person;
(15) divorce;
(16) legitimation or adoption of persons;
(17) relief of minors from legal disabilities;

– 8 –

11(a)(12), states that “[t]here shall be no special law or general law of local

application pertaining to . . . private incorporation or grant of privilege to a private

corporation.” Indeed, the language of article III, section 11(a)(12), acts as a

limitation on legislative power. See generally Bush v. Holmes, 919 So. 2d 392,

406 (Fla. 2006) (citing Savage v. Bd. of Pub. Instruction,133 So. 341, 344 (Fla.

1931) (“The Constitution of this state is not a grant of power to the Legislature, but

a limitation only upon legislative power . . . .”)).

According to article X, section 12(g), of the Florida Constitution, a special

law is defined as “a special or local law.” More specifically, a special law is

one relating to, or designed to operate upon, particular persons or
things, or one that purports to operate upon classified persons or
things when classification is not permissible or the classification
adopted is illegal; a local law is one relating to, or designed to operate
only in, a specifically indicated part of the state, or one that purports
to operate within classified territory when classification is not
permissible or the classification adopted is illegal.

(18) transfer of any property interest of persons under legal
disabilities or of estates of decedents;
(19) hunting or fresh water fishing;
(20) regulation of occupations which are regulated by a state
agency; or
(21) any subject when prohibited by general law passed by a
three-fifths vote of the membership of each house. Such law may be
amended or repealed by like vote.

(b) In the enactment of general laws on other subjects, political
subdivisions or other governmental entities may be classified only on
a basis reasonably related to the subject of the law.

– 9 –

Florida Dep’t of Bus. & Prof’l Regulation v. Gulfstream Park Racing Ass’n, 967

So. 2d 802, 807 (Fla. 2007) (quoting State ex rel. Landis v. Harris, 163 So. 237,

240 (Fla. 1934)). On the other hand, a general law is defined as “a statute relating

to . . . subjects or to persons or things as a class, based upon proper distinctions and

differences that inhere in or are peculiar or appropriate to the class.” State ex rel.

Gray v. Stoutamire, 179 So. 730, 733 (Fla. 1938).

The HGL states that it is “an act relating to St. Lucie County” and that it

“clarifies the delineation of authority within each hospital within St. Lucie

County.” Ch. 2003-372, § 1, at 448, Laws of Fla. Section 3 makes clear that the

hospitals affected by the law are only those whose licenses are held by

corporations. It is apparent from the express language in the HGL that the law was

intended to affect only those privately operated hospitals located in St. Lucie

County. Therefore, the HGL is unquestionably a special law affecting a private

corporation.

This Court has previously confronted several cases where the Legislature

passed a special law under the guise of a general law without meeting the

constitutional requirements for passage. See St. Vincent’s Med. Ctr., Inc. v.

Mem’l Healthcare Group, Inc., 967 So. 2d 794 (Fla. 2007); Florida Dep’t of Bus.

& Prof’l Regulation v. Gulfstream Park Racing Ass’n, 967 So. 2d 802 (Fla. 2007);

City of Miami v. McGrath, 824 So. 2d 143 (Fla. 2002); Dep’t of Bus. Regulation v.

– 10 –

Classic Mile, Inc., 541 So. 2d 1155 (Fla. 1989). Such is not the case here where

the law was passed as a special law and specifically enacted to affect only private,

corporately owned hospitals in St. Lucie County.

Article III, Section 11(a)(12) of the Florida Constitution

The constitutional issue in this case is whether the special law is

unconstitutional as a prohibited grant of a privilege to a private corporation.

Lawnwood argues that the “privilege” prohibited by the state constitution is

“economic favoritism over other entities similarly situated.” In response, Seeger

asserts that “privilege” encompasses more than a financial benefit. This Court has

never construed the phrase “grant of privilege to a private corporation” and thus

this is a case of first impression. 9 Therefore, it is the duty of this Court to

determine the meaning of this constitutional provision. Florida Comm’n on Ethics

v. Plante, 369 So. 2d 332, 336 (Fla. 1979) (citing Alsdorf v. Broward County, 333

So. 2d 457 (Fla. 1976)).

Our goal in construing a constitutional provision is to ascertain and

effectuate the intent of the framers and voters. See Caribbean Conservation Corp.

v. Florida Fish & Wildlife Conservation Comm’n, 838 So. 2d 492, 501 (Fla. 2003).

If the language used by the framers is clear, there is no need to resort to other tools

9. Neither party has provided an example of a special law that has been
passed affecting a private corporation since the 1968 constitutional prohibition.

– 11 –

of statutory construction. As stated by this Court in Ervin v. Collins, 85 So. 2d 852

(Fla. 1956):

We are called on to construe the terms of the Constitution, an
instrument from the people, and we are to effectuate their purpose
from the words employed in the document. We are not permitted to
color it by the addition of words or the engrafting of our views as to
how it should have been written. . . . As pointed out by the
chancellor, it must be presumed that those who drafted the
Constitution had a clear conception of the principles they intended to
express, that they knew the English language and that they knew how
to use it, that they gave careful consideration to the practical
application of the Constitution and arranged its provisions in the order
that would most accurately express their intention.

Id. at 855.

Thus, this Court’s analysis begins with an examination of the explicit

language of the provision. Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n,

489 So. 2d 1118, 1119 (Fla. 1986). “If that language is clear, unambiguous, and

addresses the matter in issue, then it must be enforced as written.” Id. Moreover,

“[l]ess latitude is permitted when construing constitutional provisions because it is

presumed that they have been more carefully and deliberately framed than

statutes.” Dep’t of Envtl. Prot. v. Millender, 666 So. 2d 882, 886 (Fla. 1996).

Historically, this Court has resorted to dictionary references in defining

terms contained in constitutional provisions. See Myers v. Hawkins, 362 So. 2d

926, 930 (Fla. 1978) (“[W]e initially consult widely circulated dictionaries, to see

if there exists some plain, obvious, and ordinary meaning for the words or phrases

– 12 –

approved for placement in the Constitution.”); see also Sch. Bd. of Escambia

County v. State, 353 So. 2d 834, 838 (Fla. 1977) (using Webster’s Third New

International Dictionary (unabr. 1960) to define “system” as used in article IX,

section 1, Florida Constitution); Hillsboro Island House Condo. Apartments, Inc. v.

Town of Hillsboro Beach, 263 So. 2d 209, 213 (Fla. 1972) (relying on Black’s

Law Dictionary definition of “improvement” as it is used in article V, section 19,

Florida Constitution). Thus, this Court has used both Black’s and Webster’s to

define terms in constitutional provisions.

According to Black’s Law Dictionary 1359 (4th ed. 1968), “privilege” is

defined in part as “a particular and peculiar benefit or advantage enjoyed by a

person, company, or class, beyond the common advantage of other citizens.”

Webster’s Seventh New Collegiate Dictionary 677 (7th ed. 1967), defines

“privilege” as “a right or immunity granted as a peculiar benefit, advantage, or

favor.” 10 The definitions provided by these dictionaries indicate that a “privilege”

encompasses more than just a financial benefit. Although this Court has not

10. We refer to the definitions of the word “privilege” as they appeared in
1968, when the Florida Constitution was revised to add article III, section
11(a)(12). The definitions have not substantially changed from those that existed
at the time of the 1968 constitutional revision. See Black’s Law Dictionary 1234
(8th ed. 2004) (defining “privilege” as “[a] special legal right, exemption, or
immunity granted to a person or class of persons; an exception to a duty”);
Merriam-Webster’s Collegiate Dictionary 928 (11th ed. 2005) (defining the word
“privilege” as “a right or immunity granted as a peculiar benefit, advantage, or
favor”).

– 13 –

defined “privilege” as used in article III, section 11(a)(12), it has defined

“privilege” as used in excise tax laws as “a franchise or right granted one by the

government.” See City of Pensacola v. Lawrence, 171 So. 793, 795 (Fla. 1937).

Thus, the common theme of all of these definitions is that a privilege is a right, a

special benefit, or an advantage.

Florida is not alone in adopting a constitutional prohibition against granting

privileges to private corporations. Indeed, fourteen other states have similar

prohibitions. 11 The Nebraska Supreme Court has defined “special privilege” in its

constitution as “a right, power, franchise, immunity, or privilege granted to or

vested in a person or class of persons, to the exclusion of others and in derogation

of common right.” City of Plattsmouth v. Nebraska Tel. Co., 114 N.W. 588, 590

(Neb. 1908). The United States Supreme Court in Old Colony Trust Co. v. City of

Omaha, 230 U.S. 100, 115 (1913), quoted with approval this definition given to the

term “special privilege” by the Nebraska Supreme Court. The Missouri Supreme

11. Two states have constitutional provisions prohibiting the granting of
“corporate powers or privileges.” See Wash. Const., art. II, § 28; Wis. Const., art.
IV, § 31. The grant of an “exclusive privilege” to a corporation is prohibited by
the constitutions of two other states. See N.J. Const., art. IV, § 7, ¶ 9; N.Y. Const.,
art. III, § 17. Ten states have constitutional provisions prohibiting the grant of a
“special or exclusive” privilege to a corporation. See Ariz. Const., art. IV, pt. 2, §
19; Colo. Const., art. V, § 25; La. Const., art. III, § 12(A)(7); Minn. Const., art.
XII, § 1; Mo. Const., art. III, § 40 (28); Neb. Const.; art. III, § 18; N.M. Const., art.
IV, § 24; S.D. Const., art. III, § 23(9); Va. Const., art. IV, § 14, cl. 18; Wyo.
Const., art. III, § 27.

– 14 –

Court’s definition mirrors that of the Nebraska high court. See State ex inf.

Chaney v. W. Missouri Power Co., 281 S.W. 709, 713 (Mo. 1926) (defining

“special privilege” as a “right, power, franchise, immunity, or privileged [sic]

granted to, or invested in, a person or class of persons to the exclusion of others

and in derogation of common right”). Similarly, the Minnesota Supreme Court has

defined “privilege” as “a right or immunity granted to a person either against or

beyond the course of the common or general law.” Dike v. State, 38 N.W. 95, 96

(Minn. 1888).

These definitions from other state supreme courts construing similar

provisions in their constitutions parallel the dictionary definitions as well as the

common sense understanding of a “privilege” as connoting a special benefit,

advantage, or right enjoyed by a person or corporation. In fact, we have followed

the principle that, unless the text of a constitution suggests that a technical meaning

is intended, words used in the constitution should be given their usual and ordinary

meaning because such is the meaning most likely intended by the people who

adopted the constitution. See, e.g., Advisory Opinion to Governor—1996

Amendment 5 (Everglades), 706 So. 2d 278, 282 (Fla. 1997). To this effect, “a

dictionary may provide the popular and common-sense meaning of terms presented

to the voters.” Id. With respect to the term “privilege,” the dictionary definitions

are not limited to economic favoritism.

– 15 –

It is a well-established tenet of statutory construction that courts “are not at

liberty to add words to the statute that were not placed there by the Legislature.”

State v. J.M., 824 So. 2d 105, 111 (Fla. 2002) (quoting Hayes v. State, 750 So. 2d

1, 4 (Fla. 1999)). This tenet applies equally to constitutional provisions. Thus, we

are not at liberty to add words to article III, section 11(a)(12), which were not

placed there by the drafters of the Florida Constitution. Because the drafters did

not limit the term “privilege” by including a reference to only economic privileges,

we conclude that the term “privilege” encompasses more than a financial benefit

and includes a “right,” “benefit,” or “advantage” granted to a private corporation.

Cf. City of Gainesville, 918 So. 2d at 263-64 (stating that had the framers of article

VII, section 3(a), wished to limit the applicability of its language exempting

property used for “municipal or public purposes” from taxation, they could have

specifically defined “municipal or public purposes” or used different terms);

Coastal Florida Police Benevolent Ass’n v. Williams, 838 So. 2d 543, 549-50 (Fla.

2003) (concluding that the term “employees” in article I, section 6, of the Florida

Constitution was intended to be applied in it broadest sense and was a

comprehensive term that was not limited to a specific group of employees but

included all employees).

We conclude that a broad reading of the term “privilege” as used in article

III, section 11(a)(12),—one not limiting the term to any particular type of benefit

– 16 –

or advantage—is required. This conclusion is also supported by the history

surrounding article III, section 11(a)(12). The specific prohibition now contained

in article III, section 11(a)(12), was enacted as part of the 1968 Constitution.

While provisions prohibiting special laws addressing certain other issues existed in

the 1885 version of the Florida Constitution, 12 the 1968 revision added the specific

12. While not referencing “privilege,” the 1885 Constitution prohibited a
number of other special laws:

Section 20. The Legislature shall not pass special or local laws
in any of the following enumerated cases: that is to say, regulating the
jurisdiction and duties of any class of officers, except municipal
officers, or for the punishment of crime or misdemeanor; regulating
the practice of courts of justice, except municipal courts; providing for
changing venue of civil and criminal cases; granting devorces [sic];
changing the names of persons; vacating roads; summoning and
empanneling [sic] grand and petit juries, and providing for their
compensation; for assessment and collection of taxes for State and
county purposes; for opening and conducting elections for State and
county officers, and for designating the places of voting; for the sale
of real estate belonging to minors, estates of descendents, and of
persons laboring under legal disabilities; regulating the fees of officers
of the State and county; giving effect to informal or invalid deeds or
wills; legitimizing children; providing for the adoption of children;
relieving minors from legal disabilities; and for the establishment of
ferries.

Art. III, §20, Fla. Const. of 1885.

Section 21. In all cases enumerated in the preceding Section, all
laws shall be general and of uniform operation throughout the State,
but in all cases not enumerated or excepted in that Section, the
Legislature may pass special or local laws, . . . Provided that no local
or special bill shall be passed, nor shall any local or special law
establishing or abolishing municipalities, or providing for their

– 17 –

provision barring grants of privileges to private corporations. Further, the 1968

Constitution strengthened many of the preexisting prohibitions against special

laws. 13 One purpose of expanding the scope of prohibitions of special laws was to

prevent state action benefiting local or private interests and to direct the

Legislature to focus on issues of statewide importance. 14 Indeed, article III,

government, jurisdiction and powers, or altering or amending the
same, be passed, unless notice of intention to apply therefor shall have
been published in the manner provided by law where the matter or
thing to be affected may be situated, which notice shall be published
in the manner provided by law at least thirty days prior to introduction
into the Legislature of any bill. . . .

Art. III, § 21, Fla. Const. of 1885 (1938).

13. For example, provision 13 expanded the prohibition of special laws
from “giving effect to informal or invalid deeds or wills” to now include the
“effectuation of invalid deeds, wills or other instruments.” Provision 18 expanded
the prohibition of special laws on “sales of real estate belonging to minors” to now
encompass “the transfer of any property interest of persons under legal disabilities
or of estates of decedents.” Moreover, provision 21 allows the Legislature to add
to section 11’s list of prohibited subjects by passing a general law approved by a
three-fifths vote of the membership of each house.

14. A review of the discussions of the 1968 Constitution Revision
Commission supports this conclusion. Representative Frank Fee stated:

“[T]he general public is getting an idea that the legislator wants to hold his
little individual power over local legislation for his own personal benefit.”

Convention of the Fla. Constitution Revision Comm’n, transcript of proceedings at
37-38 (Dec. 9, 1966) (available at Fla. Supreme Court Library, Tallahassee, FL).
Judge Hugh M. Taylor, another member of the Revision Commission, stated:

Where the State Road Department or the Forestry Department, or
some other state agency, has land in a certain county, it is a state asset

– 18 –

section 11’s broad list of prohibitions reveals the drafters’ concern for the

restriction of local laws and the encouragement of uniformity in Florida law. Cf.

Robert F. Williams, Equality Guarantees in State Constitutional Law, 63 Tex. L.

Rev. 1195, 1209 (1985) (“[T]hese proscriptions on special and local laws reflect a

concern for equal treatment under the law.”). Therefore, it appears that the in
tent

of the amendment broadening the list of prohibitions was to restrict the ability o

f

the Legislature to pass special laws, and because the framers placed no limitations

on the term “privilege” in article III, section 11(a)(12), we consider that a broad

rather than a narrow reading of the term “privilege” is in accord with this int

ent.

Accordingly, we conclude that article III, section 11(a)(12), prohibits special

laws granting rights, benefits, and advantages to a corporation; and the term

and should be handled as a state asset, rather than disposed of
according to local law by some local situation, meet some local
situation that might not be to the interest of the state as a whole.

Id. at 60. Finally, Chairman Chesterfield H. Smith stated:

All of these things that they are worried about can be handled
by general bill. Local bills are no panacea and if you had to pass
general bills and got in the habit of it, we would have a lot more
stability in the state, we would have a lot better government and
people would face up to issues that they should face up to in general
legislation.

We need to get local legislation in general out of the halls of the
Legislature and let the legislators consider problems of statewide
importance.

Id. at 92.

– 19 –

“privilege” is not limited to economic benefit or favoritism. With this

interpretation in mind, we now turn to an examination of the HGL.

The Hospital Governance Law

The HGL is composed of seven separate sections. For purposes of our

analysis, however, we will focus on sections 1, 5, and 6. 15 Section 1 sets forth the

Legislature’s intent to provide consolidation of the Board’s power, authority, duty,

and ultimate responsibility under existing statutes in the areas of medical staff and

clinical privileges and discipline, and compliance with statutorily mandated peer

review, risk management, and quality assurance activities. Section 1 also provides

that if the Board’s bylaws conflict with the Medical Staff Bylaws, the Board’s

bylaws will always “prevail with respect to medical staff privileges, quality

assurance, peer review, and contracts for hospital-based services.” 16

15. Section 2 (popular name of the law), section 3 (directive to establish a

governing board), section 4 (statement of governing board responsibilities and
statutory authority), and section 7 (effective date) are not pertinent to our
discussion.

16. Section 1 of the HGL states:

Section 1. This act clarifies the delineation of authority within
each hospital within St. Lucie County. It is the intent of the
Legislature to provide consolidation of a hospital corporation’s board
of directors’ power, authority, duty, and ultimate responsibility under
existing statutes with respect to the operation of a hospital, including,
but not limited to, the granting, denial, and discipline of medical staff
and clinical privileges, and for compliance with statutorily mandated
peer review, risk management, and quality assurance activities. This

– 20 –

Section 5 provides the Board with the right to reject or modify a medical

staff recommendation or take action independent of the medical staff in the areas

of medical staff membership, clinical privileges, peer review, and quality assurance

under stated circumstances. Section 5 also reiterates that if the bylaws of the

Board and the medical staff conflict, the bylaws of the Board will control with

respect to medical staff privileges, quality assurance, peer review, and contracts for

hospital-based services. 17

act is not intended to supersede, amend, or terminate any existing
medical staff bylaws, but rather to clarify that in the event of a conflict
between bylaws of a hospital corporation’s board of directors and a
hospital’s medical staff bylaws, the hospital board’s bylaws shall
prevail with respect to medical staff privileges, quality assurance, peer
review, and contracts for hospital-based services.

17. Section 5 of the HGL provides:

Section 5. A governing board’s authority for the administration
of the hospital is not limited by the authority of its medical staff.
Therefore, a governing board may reject or modify a medical staff
recommendation or may, if the medical staff has failed to act, take
action independent of the medical staff concerning medical staff
membership, clinical privileges, peer review, and quality assurance in
accordance with the procedures specified in section 6. To the extent,
if any, that the bylaws or other regulations of the medical staff conflict
with the bylaws or other regulations of the governing board, the
bylaws or other regulations of the governing board shall control with
respect to medical staff privileges, quality assurance, peer review, and
contracts for hospital-based services, irrespective of the identity of the
drafter of the respective bylaws or regulations. However, in no event
shall a decision regarding medical staff privileges be made by the
governing board entirely upon economic considerations. Neither the
governing board nor a hospital’s medical staff shall unilaterally

– 21 –

Finally, section 6 of the HGL contains the detailed procedures to be

followed when the Board seeks to modify a medical staff recommendation or

where the medical staff has failed to act after a Board request in the areas of

medical staff membership, clinical privileges, peer review, or quality assurance. 18

amend a hospital’s medical staff bylaws and related manuals, rules, or
regulations. Any amendments or revisions proposed by the governing
board shall first be submitted to the medical staff for its
recommendations, including 30 days’ notice for response, and any
response timely made shall be carefully considered by the governing
board prior to its approval of the proposed amendments or revisions.
18. Section 6 of the HGL states in full:

Section 6. To the extent a governing board seeks to modify a
medical staff recommendation, or where a medical staff has failed to
act within 75 days after a request from the governing board to take
action against, or with regard to, an individual physician concerning
medical staff membership, clinical privileges, peer review, or quality
assurance, a governing board may take action independent of the
actions of the medical staff. Any such action shall be subject to a fair
hearing process, if authorized by the medical staff bylaws, in which
the physician is entitled to be represented by counsel, to be afforded
an opportunity to present oral and written argument in response to the
corrective or disciplinary action proposed, and to comment upon and
cross-examine witnesses and evidence against such physician. If,
after any fair hearing, the governing board determines that corrective
or disciplinary action is necessary, it shall recommend such action to a
six-member joint conference committee composed of three members
of the governing board, to be appointed by the chair of the governing
board, and three members of the medical staff, to be appointed by the
chair or president of the medical staff. The joint conference
committee shall, within 15 days after the governing board’s decision
after the fair hearing process, review the fair hearing recommendation
and notify the governing board that the joint conference committee
accepts, rejects, or cannot reach a majority consensus concerning the

– 22 –

Under section 6 of the HGL, the Board’s independent action on a medical

staff recommendation is subject to “a fair hearing process.” If, after the “fair

hearing,” the board determines corrective or disciplinary action is necessary,

proposed board action is then recommended to a conference committee made up of

three members of the governing board and three members of the medical staff. If

the conference committee recommends other action, the HGL provides that the

Board shall not unreasonably reject that recommendation, but the Board’s decision

on the matter will be final if the conference committee agrees or if the conference

committee reaches no majority decision.

Whether the HGL Grants a Privilege

With these pertinent provisions of the law set forth, we will now address

whether these provisions grant a privilege to Lawnwood in contravention of article

governing board’s recommendation. If the joint conference
committee’s recommendation is to accept the governing board’s
recommendation, the governing board’s decision shall be final. If the
joint conference committee rejects the governing board’s
recommendation and suggests an alternative corrective or disciplinary
action, or finds that no corrective or disciplinary action is warranted,
the governing board shall not unreasonably reject the joint conference
committee’s recommendation. If the joint conference committee
cannot reach a majority consensus to either accept or reject the
governing board’s action concerning the fair hearing decision, the
governing board’s action shall be final. The governing board shall
give full and complete consideration to the joint conference
committee’s recommendations.

– 23 –

III, section 11(a)(12), of the Florida Constitution. Collectively, sections 1 and 5

provide the hospital with a complete override of any medical staff bylaws in the

event of a conflict between the bylaws. The override extends not just to peer

review but also to bylaws involving “medical staff privileges, quality assurance,

and contracts for hospital-based services.” Moreover, while section 5 refers to the

Board’s obligation to “carefully consider[]” the medical staff’s recommendations

and response regarding a Board-proposed amendment to the Medical Staff Bylaws,

this section grants the Board the right and power to unilaterally amend the Medical

Staff Bylaws, something it could not do before enactment of the HGL.

The rights granted to Lawnwood in sections 1 and 5 relating to hospital-

based services are also a significant feature of the HGL. Under the Medical Staff

Bylaws, the medical staff has an important role to play in reviewing and making

recommendations “prior to any decision being made” relating to execution of an

exclusive contract in a new department or service, renewing or modifying an

existing exclusive contract in a particular department or service, and termination of

any exclusive contract or service. Medical Staff Bylaws, art. VI, pt. C, § 4. Under

these bylaws, even though the Board would have final authority on decisions

relating to hospital-based contractual services, the role of the medical staff is a

critical element in the decision-making process and the Board must have good

cause to reject the recommendations of the medical staff in this area. Sections 1

– 24 –

and 5 of the HGL, however, grant the Board the right to circumvent the

recommendation of the medical staff in the important area of hospital-based

services by expressly providing that the Board’s bylaws relating to hospital-based

services will prevail over any conflicting provisions of the Medical Staff Bylaws.

With this right residing in the Board, the role of the medical staff in granting,

terminating, or renewing contracts for hospital-based services is marginalized, if

not nullified.

Further, under the HGL, the medical staff’s role in the area of staff

membership has been all but eliminated. The Medical Staff Bylaws provide for a

credentials committee consisting of members of the medical staff to review the

credentials of new applicants for all categories of staff appointments and clinical

privileges and to make recommendations to the Board. Medical Staff Bylaws, art.

V, pt. C. The role played by the medical staff in the area of appointments to the

medical staff is set forth in article VI, part A, of the bylaws and provides that

persons who may admit patients or practice medicine in the hospital “shall be

appointed to the medical staff after recommendation of the Medical Executive

Committee and upon approval of the Board of Trustees.” The bylaws further

provide that “[r]atification of the medical staff decision or medical staff matters

shall not be unreasonably withheld.” Medical Staff Bylaws, art. XI, § 3. Yet the

– 25 –

right to override these recommendations, without any meaningful checks or

balances, has been granted to the Board by the HGL.

Similarly, in the area of quality assurance, the Medical Staff Bylaws also

provide for a quality assurance committee consisting only of medical staff

members whose duties are to act upon recommendations from the MEC with

respect to quality review, evaluation and monitoring. Medical Staff Bylaws, art. V,

pt. E. In contrast, sections 1, 5 and 6 of the HGL shift power over quality

assurance matters to the Board.

Moreover, in section 5 of the HGL as well as section 6, the entire process for

peer review is altered to once again provide the Board, and ultimately the hospital,

control over the peer review process. Section 6 requires the medical staff to act

within 75 days after a request from the governing board regarding actions against

an individual physician and also allows for the creation of a conference committee

to second-guess the medical staff recommendations. Neither this 75-day time

requirement nor the conference committee process is contained in the current

bylaws or in the law of this State. Section 6 also provides the Board with the right

to override the recommendation of the peer review panel or the medical staff’s

recommendations for staff membership, clinical privileges, or quality assurance

without any uniformly applied reasonableness or good cause requirement, as was

previously required by the Medical Staff Bylaws.

– 26 –

In sum, the previously existing Medical Staff Bylaws established a

framework for cooperative governing in which the medical staff plays an important

role in the recommendation of candidates for appointment and credentialing, peer

review, and decisions on contract-based services. The framework for governing,

and the medical staff’s important role in it pursuant to the bylaws, is altered by the

HGL in a manner favorable to the Board by the many rights conferred on the

corporation, in which the HGL essentially gives the Board plenary power to take

independent action in these areas. At a minimum, these multiple facets of the HGL

grant Lawnwood a “right” and place it in an advantageous position, one that it did

not possess before the law was enacted. 19

Finally, although Lawnwood contends that the law was promulgated in

response to a concern for patient safety, we note that the two physicians that it

claims were a threat to the hospital and its patients were no longer on staff at the

time of the enactment of the law. 20 Assuming that patient safety was the initial

driving force, the provisions of the HGL extend far beyond actions relating to peer

19. Although the HGL did not limit its application to the two private
hospitals that existed in St. Lucie County in 2003, we look only to private hospitals
in existence at the time the law was passed and do not consider the law’s effect on
hospitals that may open in St. Lucie County in the future in our determination of
whether a privilege was provided to “a private corporation.”

20. Seeger contends and Lawnwood does not dispute that Dr. Walker and
Dr. Minarcik were no longer on staff at Lawnwood at the time the law was
enacted.

– 27 –

review and discipline and are not limited in time. Further, the provisions of the

HGL extend to both private hospitals in St. Lucie County, even though the disputes

regarding the staff physicians occurred in only one of the hospitals.

Because the HGL grants Lawnwood almost absolute power in running the

affairs of the hospital, essentially without meaningful regard for the

recommendations or actions of the medical staff, we conclude that the HGL

unquestionably grants Lawnwood “rights,” “benefits” or “advantages” that fall

within the definition of the term “privilege” as used in article III, section 11(a)(12).

Therefore, we agree with the trial court and First District’s findings that the HGL

granted Lawnwood a privilege in contravention of article III, section 11(a)(12), by

altering the balance of power that has existed since Lawnwood initially approved

the Medical Staff Bylaws, clearly in Lawnwood’s favor.

Severability

Although we have concluded that the HGL unconstitutionally confers a

privilege on Lawnwood, we will address whether any of the law’s invalid

provisions can be severed, in light of our obligation “to uphold the constitutionality

of legislative enactments where it is possible to strike only the unconstitutional

portions.” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999). Although

Lawnwood conceded at oral argument that there might be some concern regarding

the last sentence of section 5, which allows the Board to unilaterally amend the

– 28 –

Medical Staff Bylaws, Lawnwood argues that this provision is severable. The

judicial doctrine of severability is “derived from the respect of the judiciary for the

separation of powers, and is ‘designed to show great deference to the legislative

prerogative to enact laws.’” Id. (quoting Schmitt v. State, 590 So. 2d 404, 415

(Fla. 1991)).

We held in Cramp v. Board of Public Instruction, 137 So. 2d 828 (Fla.

1962), that a four-part test should be used to determine whether the invalid

portions of an act can be severed:

When a part of a statute is declared unconstitutional the remainder of
the act will be permitted to stand provided: (1) the unconstitutional
provisions can be separated from the remaining valid provisions, (2)
the legislative purpose expressed in the valid provisions can be
accomplished independently of those which are void, (3) the good and
the bad features are not so inseparable in substance that it can be said
that the Legislature would have passed the one without the other and,
(4) an act complete in itself remains after the invalid provisions are
stricken.

Id. at 830. Neither the trial court nor the district court addressed the issue of

severability. However, we conclude that the last sentence of section 5 is not the

only portion of the law that grants a privilege to Lawnwood in violation of article

III, section 11(a)(12). Rather, the statutory scheme set forth in the HGL is replete

with special benefits and advantages granted to Lawnwood. Under the test set

forth in Cramp, it cannot be said that the HGL would be an act complete in itself,

once the invalid portions are severed, that would accomplish what the Legislature

– 29 –

so clearly intended by the many different provisions granting the corporation

privileges, as we discussed above. 21 Accordingly, we reject the contention that any

of the unconstitutional provisions can be severed and the remainder preserved.

CONCLUSION

Based on the above analysis, we conclude that the HGL grants a privilege to

a private corporation in contravention of the Florida Constitution and that the

severance of any section will not mend this constitutional encroachment.

Therefore, we affirm the final judgment of the First District Court of Appeal.

It is so ordered.

QUINCE, C.J., and WELLS, LEWIS, and BELL, JJ., concur.
ANSTEAD, J., recused.
CANTERO, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

 
 

21. The HGL does not contain a severability clause.

– 30 –

(Leon County)

for Appellant

for Appellee

First District – Case No. 1D06-2016

An Appeal from the District Court of Appeal – Statutory or Constitutional
Invalidity

Stephen J. Bronis of Zuckerman, Spaeder, LLP, Miami, Florida, and Charles W.
Hall, William A. Kebler, and Mark D. Tinker of Fowler, White, Boggs and
Banker, P.A., St. Petersburg, Florida,

Major B. Harding of Ausley and McMullen, Tallahassee, Florida, and Richard H.
Levenstein of Kramer, Sewell, Sopko and Levenstein, Stuart, Florida,

Harold R. Mardenborough, Jr., of Carr, Allison, Tallahassee, Florida on behalf of
American Medical Association and Florida Medical Association, and Glenn J.
Webber, Stuart , Florida on behalf of The Association of American Physicians and
Surgeons,

 

as Amici Curiae

– 31 –

Larson v. Wasemiller

Laurino v. Bd. of Prof’l Discipline of the Idaho State Bd. of Med.

Laurino v. Bd. of Prof’l Discipline of the Idaho State
Bd. of Med.,
No. 27131 (Idaho May 1, 2002)

The
Idaho State Board revoked a physician’s license to practice medicine. The physician
sued, and the State Board’s decision was reversed by a lower court. The State
Board then appealed. The Supreme Court of Idaho ruled that the Board’s decision
must be affirmed unless its findings are not supported by substantial evidence
on the record as a whole. The court also ruled that findings made by the Board
on matters outside the record must be reversed as unsupported by substantial,
competent evidence or as arbitrary and capricious. The court found that the
physician could not have violated a local standard of care when either the local
standard of care was undefined in the record or a patient’s conduct prevented
the physician from following the defined standard of care.

Landsberg v. Me. Coast Reg’l Health Facilities (Summary)

PROFESSIONAL REFERENCES

Landsberg v. Me. Coast Reg’l Health Facilities, No. CV-08-59-B-W (D. Me. Aug. 5, 2009)

The United States District Court for the District of Maine refused to dismiss a tortious interference claim brought by a locum tenens physician who was placed "on hold" as a result of an allegation of inappropriate touching made by a certified nurse midwife (CNM). The physician claimed that the CNM’s allegation, and the hospital’s subsequent request that the locum tenens staffing company remove the physician from the hospital, caused the company, through fraud and intimidation, to stop offering the physician for any locum tenens services.

The hospital argued that the locum tenens staffing company did not rely on the hospital’s communications when putting the physician on hold since the hospital had not provided a formal explanation letter or copy of the complaint at the time the hold was imposed. It also argued that its actions could not constitute intimidation because the hospital never even suggested that the locum tenens company should stop offering the physician’s services.

The court concluded that if, as the physician alleged, the CNM was lying about the touching, the physician’s claim for tortious interference with his business relationship could be successful. Among other things, the court found that the hospital’s actions in reporting the alleged inappropriate touching could constitute intimidation, for the purpose of a tortious interference claim, because the locum tenens company had no real choice but to take contractual action against the physician to prevent him from continuing to practice in his specialty in light of the very serious allegations against him and the fact that his specialty (OB/GYN) required him to deal exclusively and intimately with women.