 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mishler v. State3/24/1993
and other radiographic studies under its retention policy. Thus, no X-rays or other radiographs were available at the hearing.
At the hearing, held on June 5 and 6, 1989, and July 7, 1989, the Board's sole witness was Dr. Arthur Lyons. Dr. Lyons, a San Francisco neurosurgeon, had never been licensed in Nevada and had never practiced neurosurgery in Northern Nevada. Dr. Mishler objected to Dr. Lyon's testimony on the grounds that Dr. Lyons was unqualified to testify as to the standards of the Reno medical community. The hearing officer took the objection under advisement and allowed Dr. Lyons to testify. Dr. Lyons' testimony was based solely on his review of the hospital records admitted into evidence. Dr. Lyons did not see any patient personally, did not review any X-rays or radiographs, and did not review Dr. Mishler's office records. Dr. Mishler objected to the admission of the hospital records without their accompanying X-rays and radiographs, and the hearing officer took the objection under advisement. Dr. Mishler testified in his own behalf, and two other neurosurgeons, Dr. Don Olson and Dr. John Clark, also testified in his defense.
After submission of the evidence, the hearing officer issued a written synopsis in which he overruled Dr. Mishler's objections to Dr. Lyons' testimony and to the admission of hospital records without the X-rays and other radiographs. The hearing officer recommended that five of the charges be upheld. On judicial review, the district court found that NAC 630.230(4), a regulation with respect to standards of treatment, was unconstitutionally vague and reversed the Board's orders on three of the cases in which discipline was based on that regulation. The district court remanded the matter to the Board for reconsideration of the
[109 Nev. 287, Page 292]
disciplinary decision on the two remaining cases (designated as cases five and seven), which were based on violations of NAC 630.210, the regulation with respect to consultation. On remand, the Board modified Dr. Mishler's discipline from license revocation to a public reprimand and set forth restrictions with respect to his reapplication for a Nevada license. The district court dismissed a petition for judicial review, and on July 8, 1991, Dr. Mishler filed a timely appeal to this court.
The standard of review for administrative decisions is well-settled. “The standard of judicial review within . . . NRS 233B.140(5) precludes the reviewing court from substituting its judgment for that of the agency.” Nev. St. Bd., Dental Exam'rs v. Toogood, 97 Nev. 255, 260, 628 P.2d 301, 305 (1981) (footnote omitted). See Board Med. Exam'rs v. Potter, 99 Nev. 162, 165, 659 P.2d 868, 870 (1983). Judicial review is confined to the record before the administrative agency. NRS 233B.135(1); Apeceche v. White Pine Co., 96 Nev. 723, 725, 615 P.2d 975, 977 (1980). The court must affirm the decision of the administrative agency if that decision is supported by substantial evidence in the record. SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987). When the factual findings of the administrative agency are supported by the evidence, they are conclusive, and the district court is limited to a determination of whether the agency acted arbitrarily or capriciously. NRS 612.530(4); Employment Sec. Dep't v. Verrati, 104 Nev. 302, 304, 756 P.2d 1196, 1197 (1988). However, this court may set aside an administrative agency's decision if the agency has prejudiced substantial rights. NRS 233B.135(3).
[109 Nev. 287, Page 293]
Dr. Mishler argues that Dr. Lyons, the expert who testified for the Board, was unqualified to testify as to the medical community standards in Reno,
Page 1 2 3 4 5 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|