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Mishler v. State3/24/1993
and that a local standard should have applied to the charges against him. However, in holding that board-certified specialists should be evaluated by the national standards of their particular specialty, this court expressly overruled the “locality rule” in Orcutt v. Miller, 95 Nev. 408, 414, 595 P.2d 1191, 1195 (1979). Nevertheless, Dr. Mishler argues that Orcutt is confined to medical malpractice cases and does not apply to a license revocation proceeding. Our justifications in Orcutt for abandonment of the locality rule in medical malpractice cases included “ubiquitous national communication networks and increasing standardization of medical training.” Id. at 413, 595 P.2d at 1194. The same reasons for abandonment of the locality rule also apply to a license revocation proceeding. Therefore, we disagree with Dr. Mishler, and conclude the hearing officer properly admitted the expert testimony of Dr. Lyons, which was based on a national standard of care.
Next, Dr. Mishler contends that it was the Board's responsibility to arrange and preserve the relevant evidence against him. Therefore, he claims that the proceedings were unfair because the Board denied him access to the evidence (X-rays and radiographs) that would prove or refute the charges against him. Because the Board prevented access to this evidence, none of the experts had an opportunity to review the X-rays. In both of the medical cases involved in this appeal, myelograms or X-rays were relevant. In case five, Dr. Lyons testified that the myelogram was normal and questioned Dr. Mishler's findings to the contrary. However, Dr. Lyons never saw the myelogram and did not interview the patient, and neither Dr. Mishler nor his experts had the opportunity to examine the myelogram. In case seven, the radiologist's report on the myelogram differed from Dr. Mishler's
[109 Nev. 287, Page 294]
reading of it. Dr. Lyons, who never saw the myelogram, based his expert opinion solely on the radiologist's report, even though the operative report confirmed Dr. Mishler's pre-operative diagnosis. Again, neither Dr. Mishler nor his expert witnesses had the opportunity to review the myelogram to compare Dr. Mishler's reported findings with the radiologist's report.
The hearing officer ruled that the absence of the myelograms and X-rays was Dr. Mishler's fault. We conclude that this ruling was erroneous. Dr. Mishler's routine practice was to leave the X-rays and diagnostic films at WMC. When WMC initiated the hostile chart review against Dr. Mishler, he tried to, but could not, obtain the myelograms and X-rays. When the Board initiated these proceedings in 1986, the diagnostic films relating to the 1981 cases would have been destroyed under WMC's five-year retention policy, unless the Board had previously obtained them. The records were privileged and were accessible only to the patients, the patients' physicians, and the Board. See NRS 629.061(1). In 1986, Dr. Mishler was not the physician for any of the patients, and he was no longer licensed to practice in Nevada because his license was not renewed in 1985. Dr. Mishler repeatedly requested the diagnostic films, but the Board told him that any materials that it had were protected from disclosure by a policy of confidentiality. The record does not state whether the Board had the records in its possession or whether the records were destroyed. In either case, the Board controlled, or once had controlled, access to the records. Thus, we conclude that the Board obstructed Dr. Mishler's access to the records.
In three recent civil actions, this court has noted the obligation of a party who intends to rely on certain evidence to marshal and preserve it for the benefit of
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