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Mishler v. State3/24/1993
istrative findings that are supported by the evidence, it need not give deference to erroneous findings. NRS 233B.135(3)(e); Board of Med. Exam'rs v. Potter, 99 Nev. 162, 659 P.2d 868 (1983). We conclude that the evidence against Dr. Mishler was insufficient to show a violation of NAC 630.210.
Moreover, the underlying nature of the proceedings against Dr. Mishler deserves inspection. With respect to a disciplinary proceeding against a licensed professional, this court has an “obligation . . . to look beyond the label given to a conviction to the true nature of the facts, in order to determine whether the underlying circumstances of the conviction warrant discipline.” State Bar of Nevada v. Claiborne, 104 Nev. 115, 211, 756 P.2d 464, 526 (1988). The sole purpose of the power to revoke a physician's license is to protect the public. Boswell v. Bd. Med. Ex., 72 Nev. 20, 293 P.2d 424 (1956). “Acts of the legislature . . . conferring jurisdiction on medical boards to revoke a physician's license, find their justification in the police power of the state to protect the public health, safety or morals.” Id. at 24, 293 P.2d at 427. Boswell held that a doctor's harsh criticism of other doctors did not warrant revocation of his license. Id.
When we look beyond the label of the discipline given to Dr. Mishler to the true nature of the facts, we conclude that the discipline is unwarranted. The Board's power was not exercised for the proper and commendable purpose of protecting the public from incompetent and negligent physicians. Instead, the Board wielded its power to ruin the career of an outspoken physician while simultaneously protecting a possibly negligent or incompetent practitioner who had questionable billing procedures. Although only one patient had complained about Dr. Mishler, and that complaint was subsequently found to be unjustified, the Board purposely scrutinized Dr. Mishler's charts to find evidence with which to discipline Dr. Mishler. The Board timed its proceedings against Dr. Mishler to limit the evidence available to him for his defense, because WMC's retention policy operated to destroy important films. Also, while the Board used its own rules of confidentiality as an excuse to obstruct Dr. Mishler's access to evidence, it violated the same policy with respect to Dr. Mishler's confidential reports. The Board knew that Dr. Mishler
[109 Nev. 287, Page 297]
was so impoverished that he had declared bankruptcy , and that he could ill afford to hire counsel. Finally, even though the Board had the right to obtain the records and Dr. Mishler did not, the Board attempted to shift the burden for the preservation of evidence to Dr. Mishler. Despite the absence of this evidence—office records, X-rays, and diagnostic films—at the hearing, the Board disciplined Dr. Mishler.
In short, we conclude that the Board's actions and the proceedings against Dr. Mishler constituted a disturbing abuse of its power. Therefore, we reverse the disciplinary order of the Board in its entirety and dismiss all proceedings against Dr. Mishler with prejudice. Because we reverse on the grounds of insufficient evidence, we do not reach the issue of the constitutionality of NAC 630.210(2).
Rose, C. J., Steffen, Young, and Springer, JJ., Zenoff, Sr. J.
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