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11/18/94 SAM EVANS v. STATE BOARD CHIROPRACTIC

November 18, 1994

SAM EVANS, D.C.
v.
STATE BOARD OF CHIROPRACTIC EXAMINERS



Appeal from Dallas Circuit Court. (CV-89-135). J. C. Norton, TRIAL JUDGE.

Rehearing Denied January 6, 1995. Certiorari Denied May 5, 1995. Released for Publication October 17, 1995.

Yates, Judge. Thigpen, J., concurs. Robertson, P. J., Dissents.

The opinion of the court was delivered by: Yates

YATES, Judge

Sam Evans, doctor of chiropractic, appeals from an order of the circuit court affirming the decision of the Alabama Board of Chiropractic Examiners to suspend for 30 days his license to practice chiropractic therapy. After a hearing, the Board found Evans guilty of having sexual relations with a patient under his professional care, exploiting the patient or her health insurance carrier for financial gain, *fn1 and billing for services that were not performed, all in violation of § 34-24-166, Ala. Code 1975. *fn2

The Board heard conflicting testimony about the duration of Evans's affair with the patient, whether the frequency of treatments allegedly performed was justified in light of normal chiropractic procedures, and whether Evans performed the treatments for which the insurance carrier was billed. Evans testified that he had performed those treatments for which he submitted billings, but that he had made a bookkeeping error while recording the specific dates of treatment. The record reveals that the patient was in the hospital and was unavailable for chiropractic treatment on two of the days that Evans billed as "treatment days." There was substantial, undisputed evidence that Evans had had sexual relations with his patient while treating her professionally.

Evans's only contention on appeal is that the Board's decision was "unreasonable, arbitrary or capricious," arguing that his right to an unbiased, impartial hearing was violated. William Whatley, the hearing officer for the Board, had held the position of assistant attorney general and counsel for the Board. He had been actively involved in the investigation of Evans during that time. The husband of the patient with whom Evans had the affair was an investigator in the attorney general's office. The husband wrote a memorandum to Whatley suggesting that an investigation of Evans would reveal improper conduct. Also, Whatley wrote a letter to the Selma Police Department, requesting a copy of an incident report that would implicate Evans as being unfaithful to his wife.

Paraphrasing this court's statements in a case involving the Medical Licensing Commission, we note:

"[The Board's] order is presumed to be prima facie just and reasonable. We may not substitute our judgment for that of the agency as to the weight of the evidence [on a] question of fact, nor could the circuit court substitute its judgment for that of the [Board]. Thus, if supporting evidence is found in the record, we are bound to affirm the order."

Evers v. Medical Licensure Comm'n, 523 So. 2d 414, 415 (Ala. Civ. App. 1987).

"Appellate review of administrative actions is limited to a determination of 'whether the agency acted within its powers conferred upon it by law and the constitution, whether its decision is supported by substantial evidence, and whether the agency's decision is reasonable and not arbitrary.'" Jones v. State Bd. of Pharmacy, 624 So. 2d 613, 614 (Ala. Civ. App. 1993) (citing Alabama Bd. of Nursing v. Herrick, 454 So. 2d 1041, 1043 (Ala. Civ. App. 1984)).

It is well settled in Alabama that due process must be observed not only by the courts, but by all boards as well. Delavan v. Board of Dental Examiners, 620 So. 2d 13 (Ala. Civ. App. 1992). "A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases." In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 75 S. Ct. 623 (1955).

In cases where it is shown that the decisionmaker has a personal or pecuniary interest in the outcome, the probability of actual bias has been considered too high to be constitutionally tolerable. Withrow v. Larkin, ...


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