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OPINION 97021




DATE: March 25, 1997




SUBJECT: LB 146; Legal effect in cases involving discipline of health care professionals




REQUESTED BY: Senator Don Wesely, Chairperson

Health and Human Services Committee

Nebraska State Legislature




WRITTEN BY: Don Stenberg, Attorney General

James D. Smith, Assistant Attorney General






OPINION REQUEST:




LB 146 would change the Nebraska statutes stating the grounds

for disciplining licenses of health care professionals. LB 146

would amend the disciplinary statutes by adding the following

language:




This section shall not be construed to affect or prevent

a licensee's use of whatever medical care, conventional

or nonconventional, which effectively treats human

disease, pain, injury, deformity, or physical condition

which is within the scope of practice of the licensee.




In your opinion request, you express the concern that the bill

will weaken the ability of examining boards and our office to

regulate unproven therapies. Your opinion request specifically

seeks our opinion "concerning the legal effect of adding this new

language in cases involving discipline of health care

professionals".




Senator Don Wesely

Page -2-

March 25, 1997






CONCLUSIONS:




1. As drafted, LB 146 would inject legal ambiguity into the

statutory grounds for disciplining professional health

care licenses.




2. As drafted, LB 146's legal ambiguity can allow

licensed health care professionals to promote and

use unproven therapies with less risk of disciplinary

consequences.




Legislative history:




Neb. Rev. Stat. §§ 71-147 and 71-148 state the many grounds

for disciplining the licenses of health care professionals. LB 146

proposes to amend both Sections 71-147 and 71-148 by adding the

language stated above.




The disciplinary grounds provided by Sections 71-147 and 71-

148 apply to multiple licensed health professions and occupations,

not simply those professionals having a license to practice

medicine and surgery. These disciplinary statutes are also

applicable to licensed professionals such as advanced registered

nurse practitioners, nurses, certified nurse practitioner-

anesthetists, certified nurse midwives, athletic trainers,

chiropractors, dentists, dental hygienists, massage therapists,

medical nutrition therapists, mental health practitioners, nursing

home administrators, optometrists, osteopathic physicians,

pharmacists, physical therapists, podiatrists, psychologists, and

respiratory therapists.




As recognized by the Nebraska Supreme Court, the purpose for

licensing and disciplining health care professionals is for the

protection of the public. Using the Supreme Court's terminology

from last century, "The purpose . . . was to protect the sick and

afflicted against the knavery of quacks . . . ." Maxwell v.

Swigart, 48 Neb. 789, 791, 67 N.W. 789, 790 (1896). Using the

Supreme Court's more recent terminology, "The disciplinary

proceedings of physicians . . . serve the same purpose: protection

of the public interest." Davis v. Wright, 243 Neb. 931, 939, 503

N.W.2d 814, 819 (1993).




In reviewing the history of Section 71-147 and 71-148, it is

noted that significant amendments were made to these statutes in

1993 by the Legislature in response to the Nebraska Supreme Court's

Senator Don Wesely

Page -3-

March 25, 1997






decision in Curry v. State ex rel. Stenberg, 242 Neb. 695, 496

N.W.2d 512 (1993). The Curry case involved a physician who had

been disciplined for "unprofessional conduct" for prescribing

controlled substances contrary to practice standards of the medical

profession. The Nebraska Supreme Court reversed the discipline on

the basis that Neb. Rev. Stat. §§ 71-147 and 71-148 did not define

"unprofessional conduct" to include a professional's violation of

the practice standards of his own profession.




Two months after the Curry decision, the Legislature adopted

Amendment 2051 to Laws 1993, LB 536, which was ultimately passed by

the Legislature by a vote of 44 to 1 with the emergency clause and

approved by the Governor on June 10, 1993. Amendment 2051 amended

Section 71-148's definition of "unprofessional conduct" and added

the following language:




unprofessional conduct shall mean any departure from or

failure to conform to the standards of acceptable and

prevailing practice of a profession or occupation or the

ethics of the profession or occupation, regardless of

whether a person, patient, or entity is injured, or

conduct that is likely to deceive or defraud the public

or is detrimental to the public interest, including, but

not limited to:


[Subsections 1 through 16, stating various disciplinary

violations, remained unchanged. Subsections 17-21 were

added to create new violations relating to sexual

misconduct, failure to maintain treatment records, and

drug prescribing violations.]




Analysis of LB 146:




There are several key terms of LB 146 which are not defined by

the bill. They are the terms "effectively treats", "conventional

or nonconventional", and "medical care".




The terms "conventional or unconventional", in the context of

the bill's remaining language, indicate that the ultimate question

to be considered in disciplining licensed health care professionals

for providing medical care is the effectiveness of "whatever

medical care". One can obviously note that the proof of anything

is in the pudding. However, trying to prove at a disciplinary

hearing what was in the pudding, after the fact, may be extremely

difficult.






Senator Don Wesely

Page -4-

March 25, 1997






The bill is unclear who will have the burden of proving

effectiveness or how such matters are to be proven. In Davis v.

Wright, 243 Neb. 931, 503 N.W.2d 814 (1993), the Nebraska Supreme

Court ruled that the State has the burden of proving disciplinary

violations by clear and convincing evidence, which is a heavier

burden of proof than is imposed on a civil litigant in malpractice

litigation. Thus, the question of who would have the burden of

proving "effectiveness", or lack of the same, in a disciplinary

proceeding is a significant question, especially if the burden of

proof in this regard is to be on the State.




The question of how to prove "effectiveness" is troublesome

when legal concepts of admissible evidence are contrasted with the

bill's use of the adjective "unconventional" in reference to

"medical care". Neb. Rev. Stat. § 84-914(1) provides that any

party to an administrative hearing may require an administrative

agency to be bound by the rules of evidence. Since professional

disciplinary proceedings are administrative hearings, either the

State or the licensed professional may invoke the rules of evidence

for a contested disciplinary hearing. If proof of effectiveness of

medical care is to be by expert testimony, the Nebraska Supreme

Court applies the standard for the admissibility of scientific

evidence first enunciated in Frye v. United States, 293 F. 1013

(D.C. Cir. 1923)". See, State v. Reynolds, 235 Neb. 662, 457

N.W.2d 405 (1990); State v. Carter, 246 Neb. 953, 524 N.W.2d 763

(1994). The Nebraska Supreme Court has explained the "Frye" test

as follows:




Under the test or standard enunciated in Frye,

reliability for admissibility of an expert's testimony,

including an opinion, which is based on a scientific

principle or is based on a technique or process which

utilizes or applies a scientific principle, depends on

general acceptance of the principle, technique, or

process in the relevant scientific community. State v.

Reynolds, 235 Neb. at 681, 457 N.W.2d at 418. Emphasis

added.




In accordance with the Nebraska Supreme Court's decision in

Reynolds, the rules of evidence appear to forbid the introduction

of expert testimony that something which is "nonconventional" was

"effective". This is because the expert's testimony would be

unreliable if the scientific principles upon which the care was

based are not generally accepted in the relevant scientific

community. LB 146 is unclear whether it would have the effect of

permitting "unreliable experts", i.e. those defined by evidence




Senator Don Wesely

Page -5-

March 25, 1997






rules as experts whose techniques are not generally accepted, to

testify as to the effectiveness of nonconventional medical care.




Whether anecdotal testimonials of effectiveness, as opposed to

expert testimony, will suffice to establish effectiveness is an

open question. Obviously, a patient can testify to the treatment

provided and the effects noticed by the patient. If such evidence

will be sufficient to insulate a professional from discipline, one

can envision claims that a certain flu remedy was effective

because, after administration of it, the patient's symptoms

generally disappeared after 5 to 7 days.




The ambiguity of the term "effectively treats", as it refers

to the bill's language on "human disease, pain, injury, deformity,

or physical condition", raises legal questions beyond that of the

burden of proof and who has the burden. Also unclear is what

happens if the "medical care" in a particular fact situation is

"effective" to treat a patient's particular complaint, such as

pain, but creates other complications or conditions. For example,

one could prescribe pain medication or a variety of treatments

which may be "effective" to relieve pain or a particular patient

complaint, but which can also cause other complications or fail to

address other underlying problems.




The term "medical care" would not necessarily be restricted to

care provided by those licensed in the profession of medicine and

surgery. As previously noted, there are numerous other professions

which are subject to the disciplinary provisions of Sections 71-147

and 71-148, many of which also are responsible for providing what

could be construed as "medical care" for humans. See also,

Champion Intern. v. Nicholes, 773 P.2d 376 (Okla. App. 1989 -

psychologist's services constitute "medical care"); Zeh v.

National Hospital Ass'n, 377 P.2d 852 (Ore. 1963 - chiropractor's

services constitute "medical care").




The bill as a whole is drafted so that the words "this section

shall not be construed to affect or prevent" raises questions as to

the effect of the remaining disciplinary grounds of Sections 71-147

and 71-148 in the event they conflict with a professional's use of

"whatever medical care, conventional or nonconventional, which

effectively treats". It is unclear whether such a conflict means

the disciplinary statutes should be "construed" so as to prohibit

discipline for what otherwise would have been a violation of other

disciplinary provisions. Section 71-148 would still retain

statutory language defining "unprofessional conduct" to include the

"failure to conform to the standards of acceptable and prevailing

Senator Don Wesely

Page -6-

March 25, 1997






practice of a profession". If LB 146 intends to "construe" the

latter language out of Section 71-148, then it is unclear if other

disciplinary grounds and provisions of Sections 71-147 and 71-148

are also to be construed as non-applicable in situations when

"whatever medical care" was "effective".




In general, ambiguity promotes the likelihood of contested

cases, more court appeals, and the risk of decisions that denote

why law is not an exact science. See, State v. Carter, 246 Neb.

953, 976, 524 N.W.2d 763 (1994), quoting from State v. Bible, 175

Ariz. at 578, 858 P.2d at 1181, "[B]ecause neither judge nor jury

may be able to separate 'junk science' from good science, Frye

helps guarantee 'that reliability will be assessed by those in the

best position to do so: members of the relevant scientific field

who can dispassionately study and test the new theory'". The

ambiguities of LB 146, as drafted, could allow members of licensed

health care professions to dispassionately study and test new

theories on the public, with safe havens from discipline being

provided to those professionals who make claims of effectiveness

which could not be disproved, by clear and convincing evidence, by

the State.






DON STENBERG

Attorney General








James D. Smith

Assistant Attorney General






APPROVED BY:




______________________________

Attorney General








31-318-11