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HOLLABAUGH v. ARKANSAS STATE MEDICAL BD.

9/8/1993

Denise Hollabaugh, M.D., is a family practice physician in Dover, Arkansas. Following a hearing on March 12, 1992, the Arkansas State Medical Board found that Dr. Hollabaugh had violated Ark. Code Ann. 17-93-409(7) (Repl. 1992) and the medical board's Regulation 2(4) by committing "gross negligence or ignorant malpractice" in prescribing excessive amounts of controlled substances and writing an excessive number of prescriptions for addictive or potentially harmful drugs for seven patients. The board placed Dr. Hollabaugh's medical license on probation for one year and directed that she obtain fifty hours of continuing medical education regarding pain management. The board also ordered Dr. Hollabaugh to refrain from writing Schedule II and III narcotics prescriptions for her patients and to submit to periodic monitoring by the medical board and the Arkansas State Pharmacy Board. Dr. Hollabaugh appealed the decision of the board to the Pope County Circuit Court, which affirmed the medical board's decision. Dr. Hollabaugh has appealed from the decision of the circuit court and argues that the medical board's decision is not supported by the evidence. We agree and reverse.


[1, 2] The rules governing judicial review of decisions of administrative agencies are settled and are the same for both the circuit and appellate courts. On review of an agency decision, the circuit court is limited to a review of the evidence to determine whether there was substantial evidence to support the decision made and whether it was arbitrary, capricious, or characterized by an abuse of discretion. Deweese v. Polk County Children and Family Servs., 40 Ark. App. 139, 141-42, 842 S.W.2d 466, 467 (1992). On appeal, our review of the evidence is similarly limited. Beverly Enters. - Ark., Inc. v. Ark. Health Servs. Comm'n, 308 Ark. 221, 226, 824 S.W.2d 363, 365 (1992). When reviewing the evidence, we give it its strongest probative force in favor of the agency. Id. In order to establish an absence of substantial evidence, the appellant must show the proof before the board was so nearly undisputed that fair-minded persons could not reach its conclusion; the question is not whether the evidence supports a contrary
finding but whether it supports the finding that was made. Id.


[3, 4] Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture. Eckels v. Ark. Real Estate Comm'n, 30 Ark. App. 69, 75, 783 S.W.2d 864, 867 (1990); Arkansas Real Estate Comm'n v. Hale, 12 Ark. App. 229, 233, 674 S.W.2d 507, 509 (1984). The reviewing court may not displace the board's choice between two fairly conflicting views even though the court might have made a different choice had the matter been before it de novo. Fouch v. Alcoholic Beverage Control Div., 10 Ark. App. 139, 141-42, 662 S.W.2d 181, 183 (1983). Whenever the record contains affirmative proof supporting the view of each side, we must defer to the board's expertise and experience. Green v. Carder, 282 Ark. 239, 245, 667 S.W.2d 660, 663 (1984). It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues; this may be especially true where such issues may be brought up in a contest between opposing forces in a highly-charged atmosphere. Arkansas Alcoholic Beverage Control Bd. v. King, 275 Ark. 308, 311, 629 S.W.2d 288, 290 (1982).


Dr. Hollabaugh argues that the decision of the medical board is not supported by substantial evidence because the only expert testimony offered on behalf of th

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