{ "id": 8717198, "name": "Pat V. LIVINGSTON, M.D. v. ARKANSAS STATE MEDICAL BOARD", "name_abbreviation": "Livingston v. Arkansas State Medical Board", "decision_date": "1986-01-13", "docket_number": "85-201", "first_page": "1", "last_page": "6", "citations": [ { "type": "official", "cite": "288 Ark. 1" }, { "type": "parallel", "cite": "701 S.W.2d 361" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "275 Ark. 308", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753657 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0308-01" ] }, { "cite": "237 Ark. 506", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737874 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/237/0506-01" ] }, { "cite": "167 Cal. Rptr. 881", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1980, "opinion_index": 0 }, { "cite": "110 Cal. App. 3d 184", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6044761 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/cal-app-3d/110/0184-01" ] }, { "cite": "Cal. Bus. & Prof. Code \u00a7 2234", "category": "laws:leg_statute", "reporter": "Cal. Code", "year": 1985, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "366 F. Supp. 307", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3509506 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/f-supp/366/0307-01" ] }, { "cite": "242 Ark. 707", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723225 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0707-01" ] }, { "cite": "271 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756268 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0351-01" ] }, { "cite": "268 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715496 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0094-01" ] } ], "analysis": { "cardinality": 545, "char_count": 8724, "ocr_confidence": 0.922, "pagerank": { "raw": 1.729947765919103e-07, "percentile": 0.7052202657375005 }, "sha256": "98ad4a1676d19def045d9b4d26e16d28a532126dd03b3718fcf99021b134a6f9", "simhash": "1:8be8ee94290e56fa", "word_count": 1419 }, "last_updated": "2023-07-14T22:45:27.788923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Turtle, J., not participating." ], "parties": [ "Pat V. LIVINGSTON, M.D. v. ARKANSAS STATE MEDICAL BOARD" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe Arkansas State Medical Board found that appellant, Dr. Pat Livingston, committed \u201cgrossly negligent or ignorant malpractice\u201d and ordered her license suspended for 30 days. The doctor appealed to Pulaski Circuit Court where the board\u2019s decision was upheld. It is from that holding that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(c) as this case was certified to us by the Court of Appeals to interpret Ark. Stat. Ann. \u00a7 72-613 (Repl. 1979 and Supp. 1985).\nThe basis of the board\u2019s action was that Dr. Livingston had \u201cnegligently and repeatedly diagnosed and confirmed the diagnosis of pregnancy of a female patient over a period of four (4) months,\u201d when the patient was not, in fact, pregnant. Testimony at the hearing before the board revealed that Mrs. Kathy Hooper, 23, visited Dr. Livingston seven times between September 9,1983 and January 7,1984. Mrs. Hooper testified that those visits were for obstetric purposes, since Dr. Livingston told her she was pregnant at the first visit on September 9; treated her as such during subsequent visits; and did not tell her she was not pregnant until January 7. Dr. Livingston denied having ever told Mrs. Hooper she was definitely pregnant and relies on the fact that her medical records do not reveal that specific statement was ever made. During the course of the seven visits, a pregnancy test was performed on Mrs. Hooper with positive results, she was checked for uterine enlargement, placed on vitamins, given a due date of May 6, 1984, and had three ultrasounds. The ultrasounds were performed by Lucy McDaniel, an employee of Dr. Livingston\u2019s, who told Mrs. Hooper that the baby was so small she could not get a good picture of it and that the baby might be \u201chiding.\u201d At Mrs. Hooper\u2019s final visit, Dr. Livingston told Mrs. Hooper that she was sorry about the amount of time that had gone by, but that she thought Mrs. Hooper understood that she was probably not pregnant.\nDr. Livingston offered the testimony of Dr. Orman Simmons, an obstetrician/gynecologist practicing in Little Rock. Dr. Simmons testified that Dr. Livingston\u2019s records were adequate and reflected an appropriate standard of care. He also testified, however, that he would have taken steps before January 7 to determine conclusively whether Mrs. Hooper was pregnant, and that it would not be up to the standard of care in the community to wait four months to tell the patient she was not pregnant, and to not seek a second opinion. Dr. Livingston admitted during her testimony, \u201cI feel that we did let the girl go too long\u201d, and that she should have sent her to another doctor who would have told her definitely whether she was pregnant.\nThe appellant argues on appeal that the trial court erred in failing to find that the decision of the appellee, the Arkansas State Medical Board, was arbitrary, capricious and characterized by an abuse of discretion.\nWhen reviewing administrative action to determine if it is arbitrary or capricious, we determine whether the action lacks a rational basis or hinges on a finding of fact based on an erroneous view of the law. Woodyard, Comm\u2019r v. Ark. Diversified Ins., 268 Ark. 94, 594 S.W.2d 13 (1980), rehearing denied.\nThe testimony at the hearing provided a rational basis for the board\u2019s action. The appellant contends, however, that the decision hinged \u201con a finding of fact based on an erroneous view of the law.\u201d In support of this contention, appellant maintains that the board held Dr. Livingston, a general practitioner, to the same standard of care as that exercised by Dr. Simmons, a specialist. Appellant claims the board thereby violated Ark. Stat. Ann. \u00a7 34-2614 (Supp. 1985) which provides that the plaintiff in an action for medical injury has the burden of proving the skill ordinarily possessed by members of the profession engaged in the same type of practice. Arkansas Stat. Ann. \u00a7 34-2613 (Supp. 1985), however, defines \u201caction for medical injury\u201d as \u201cany action against a medical care provider ... to recover damages on account of medical injury.\u201d This was an action by an administrative board reviewing the conduct of a professional, and ultimately punishing that professional. It was not an action to recover damages. The statute is therefore inapplicable.\nThe authorizing statute for the board\u2019s action is Ark. Stat. Ann. \u00a7 72-613 (Repl. 1979 and Supp. 1985) which provides that the board may revoke or suspend a license if the holder has committed any acts or offenses defined to be unprofessional conduct. Included in the list of definitions is \u201c(g) grossly negligent or ignorant malpractice.\u201d The board\u2019s action was not the result of an erroneous application of the law.\nThe other \u201cerroneous view of the law\u201d argued by appellant is the board\u2019s interpretation of \u201cgrossly negligent or ignorant malpractice.\u201d The appellant maintains there was not substantial evidence to support the board\u2019s finding.\nWe affirm an agency\u2019s decision if there is substantial evidence to support it. Partlow v. Ark. State Police Comm\u2019n, 271 Ark. 351, 609 S.W.2d 23 (1980); Ark. Stat. Ann. \u00a7 5-713(h)(5) (Supp. 1985). To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion, Id.\n\u201cMalpractice\u201d is defined by Regulation 2 of the Arkansas State Medical Board to include \u201cany professional misconduct, unreasonable lack of skill or fidelity in professional duties, evil practice, or illegal or immoral conduct in the practice of medicine and surgery.\u201d\nThe appellant argues that her conduct does not fall within the category defined in the regulation. She states that even if her conduct could be considered \u201can unreasonable lack of skill\u201d that this definition is only for \u201cmalpractice\u201d and not for \u201cgrossly negligent\u201d or \u201cignorant malpractice.\u201d\nAlthough we have not previously defined \u201cignorant malpractice\u201d this court has considered the question of \u201cgross negligence\u201d in other contexts. We have stated our commitment \u201cto the majority rule that willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence\u201d, St. Louis S.W. Ry. Co. v. Clemons, etc., 242 Ark. 707, 415 S.W.2d 332 (1967). The U.S. District Court, Western District, Fort Smith Division, has stated that \u201c[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result,\u201d Robinson Ins. & Real Estate Inc. v. Southwestern Bell Tel. Co., 366 F. Supp. 307 (1973). The district court further explained that the element of willfulness is absent in gross negligence. Id.\nCalifornia has a similar medical licensing statute which includes \u201cgross negligence\u201d as a form of unprofessional conduct. Cal. Bus. & Prof. Code \u00a7 2234(b) (Deering 1985). Interpreting this statute, (formerly \u00a7 2361) the California Court of Appeal in Gore v. Board of Medical Quality Assur., 110 Cal. App. 3d 184, 167 Cal. Rptr. 881 (1980), also defined gross negligence as \u201ca want of even slight care, but not necessarily involving wanton or willful misconduct; in other words, an extreme departure from the ordinary standard of care.\u201d In finding the doctor in that case committed gross negligence, the court held:\nSubstantial evidence shows that he failed to exercise the standard of care in diagnosis, monitoring and treatment that is basically and routinely taught to students in medical school. Thus, management of his patient was an extreme departure from the standard of medical care, which we hold to be the equivalent of \u201cwant of even scant care\u201d under the circumstances of this case.\nAlthough the board did not differentiate in its finding between \u201cignorant malpractice\u201d or \u201cgross negligence\u201d there was substantial evidence of an extreme departure from the ordinary standard of care, which constitutes gross negligence. The board had the benefit of expert testimony in reaching their decision, see Hake v. Ark. State Medical Bd., 237 Ark. 506, 374 S.W.2d 173 (1964), and we traditionally accord a great deal of deference to the findings of administrative agencies in light of their \u201cspecialization, insight through experience and more flexible procedures,\u201d Arkansas ABC Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982).\nAccordingly, the judgment of the trial court is affirmed.\nTurtle, J., not participating.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Huckabay, Munson, Rowlett & Tilley, P.A., for appellant.", "Cearley, Mitchell & Roachell, for appellee." ], "corrections": "", "head_matter": "Pat V. LIVINGSTON, M.D. v. ARKANSAS STATE MEDICAL BOARD\n85-201\n701 S.W.2d 361\nSupreme Court of Arkansas\nOpinion delivered January 13, 1986\nHuckabay, Munson, Rowlett & Tilley, P.A., for appellant.\nCearley, Mitchell & Roachell, for appellee." }, "file_name": "0001-01", "first_page_order": 27, "last_page_order": 32 }