Appeal from the Iowa District Court for Polk County, Glen E. Pille, Judge.
Amjad Butt, M.D., appeals the district court's ruling on judicial review upholding the Iowa Board of Medicine's findings of unethical or unprofessional conduct in the practice of medicine.
David L. Brown and Jay D. Grimes of Hansen, McClintock & Riley, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Meghan Gavin, Assistant Attorney General, for appellee.
Heard by Doyle, P.J., and Danilson and Mullins, JJ.
Amjad Butt, M.D., appeals the district court's ruling on judicial review upholding the Iowa Board of Medicine's findings of unethical or unprofessional conduct in the practice of medicine. We affirm the board's conclusion that Dr. Butt engaged in unethical and/or unprofessional conduct in violation of lowa Code sections 147.55(3) and 272C.10(3) (2007) and Iowa Administrative Code rule 653-23.1(4) in that he acted unprofessionally when he made offensive and threatening statements to Portz and when he made unprofessional comments to Peska, portions of the allegations in Count I. We otherwise reverse and remand for the board to consider the propriety of the discipline imposed upon Dr. Butt in light of our conclusions.
I. Background Facts and Proceedings.
On March 7, 2008, Medical Associates in Clinton, Iowa, reported to the Iowa Board of Medicine that it had terminated the services of interventional cardiologist Dr. Amjad Butt. The board conducted an investigation, subpoenaing records from Medical Associates regarding Dr. Butt's behavior and termination. The board received complaints that Dr. Butt asked a female subordinate co-worker to enter into a romantic relationship with him and he subsequently made numerous harassing telephone calls and threatened to cause serious bodily harm to her; made inappropriate sexual comments to female coworkers on numerous occasions; made inappropriate comments to at least three patients about their sex lives; and made threatening statements to, and harassed, another female subordinate. Ultimately the board levied three charges against Dr. Butt.
On September 17, 2008, in a statement of matters asserted, the board set out these factual allegations against Dr. Butt:
A.[Dr. Butt] asked a female subordinate co-worker to enter into a romantic relationship with him[.] [H]e subsequently made numerous harassing telephone calls and threatened to cause serious bodily harm to the female subordinate co-worker;
B.[Dr. Butt] allegedly made inappropriate sexual comments to female co-workers on numerous occasions;
C. [Dr. Butt] allegedly made inappropriate comments to at least three patients about their sex lives; and
D.[Dr. Butt] made threatening statements to, and harassed, another female subordinate.
The statement of charges asserted Dr. Butt had thus engaged in unethical or unprofessional conduct in the practice of medicine (in violation of Iowa Code sections 147.55(3) and 272C.10(3) and Iowa Administrative code rule 653-23.1(4)) and inappropriately engaged in a pattern of sexual harassment in the workplace (in violation of Iowa Code sections 147.55(8) and 272C.10(8) and Iowa Administrative code rules 653-23.1(4) and 653-13.7(6)).
During the board's investigation prior to filing charges, Dr. Butt wrote a letter on May 23, 2008, to the board's investigator, which reads in part:
On February 23rd, Ms. Smith [referred to as Nurse #1 by board] was scheduled to work in the hospital, apparently as part of a second job. However, she was called that morning and told not to come to work due to a low census. As I was making rounds that day, she showed, up in the CCU and started helping me. Later, she stated that she expected to be paid for the work she did on that day. I told her that I had not called her and asked her to come into work and that she should not expect or demand payment for voluntary help. This discussion ended with an argument at the conclusion of which I told her that I could not continue working with her. Afterwards, I felt sorry that I had threatened to fire her, so I called her on the phone to apologize for the argument and to tell her that I was not in a position to fire her. This occurred during several phone calls with her. During these phone calls I thought she was attempting to threaten me, physically, so I was attempting to defuse the situation to protect myself.
After several phone calls, she eventually stated that she would return to work, but she did not want to continue working with me. She also told me she could not come in on Monday or Tuesday, because she was babysitting her niece. I left for a CTA course in New Jersey on February 25th. On February 27th I received a call from the Clinic advising me that a complaint had been filed. Supposedly I had been accused by Ms. Smith that I threatened to cut her carotid, that I wanted to bury her, that I wanted a baby from her and that I have done something with a patient when he/she was under sedation. Each and every one of these allegations is false.
Concerning the second person to whom I allegedly spoke in a derogatory and demeaning manner [referred to as Nurse #2], the only incident that this may refer to was when my nurse, Ms. Smith, told me that "'there was a rumor in the hospital that her schedule revolved around my schedule". Ms. Smith told me that a friend of hers had told her this with the implication that there was something going on between Ms. Smith and myself. I told Ms. Smith I wanted to talk to this other nurse.
A meeting was set up for her to come to my office at 3:30 p.m. and when she arrived, she arrived with Michele from administration. I told Michele that this was a personal matter and I wanted to talk to the nurse alone. I spoke to this nurse and told her that saying and spreading such gossip was very dangerous. She denied that she was the source of the gossip and I told her that I accepted her denial, but please do not engage in such gossip in the future. I then spoke with Michele and explained to her that I did not want her present when I talked to the nurse, because I didn't want any disciplinary action taken against the nurse.
The board sent a proposed settlement agreement to Butt's counsel on November 24, 2008, calling for payment of a $10, 000 fine, undergoing and complying with the recommendation of an evaluation by the Behavioral Medicine Institute (BMI), a board-approved polygraph examination, and allowing a worksite monitor. Dr. Butt did not accept the proposed settlement. However, he did voluntarily agree to submit to an evaluation and polygraph examination by BMI.
The results of Dr. Butt's evaluation and polygraph were provided in a report by BMI to the board on April 3, 2009. In this report, BMI Medical Director, Gene Able, M.D., sets out the tests administered and Dr. Butt's test results. Dr. Able reported that Dr. Butt's test profile on one test was "marginally valid because Dr. Butt attempted to place himself in an overly positive light." The report suggested no psychological diagnosis.
Dr. Able reported Dr. Butt underwent a polygraph examination performed by Von Jennings of Northeast Georgia Polygraph Services and was asked the following questions, and answered as indicated: "(1) Did you threaten to kill [Smith]? Answer: No. (2) Did you ask [Smith] to have your baby? Answer: No. (3) Did you comment on the breast cleavage of a woman in her 80s? Answer: No." Dr. Able wrote, "Global analysis of the physiological data from three tests, each containing the previously listed pertinent questions, disclosed No Significant Responses. The examiner is of the opinion that Dr. Butt was truthful during testing." The report concluded, "We believe that there is a low probability that Dr. Butt had threatened to kill [Smith] or that he wanted to have a child with her."
The board filed a witness and exhibit list in December 2010. Dr. Butt objected on hearsay grounds to proposed exhibits 2-11, which included investigative reports, statements, and letters—he also asserted such evidence violated his rights of confrontation.
Citing McConnell v. lowa Department of Job Service, 111 N.W.2d 234, 237 (Iowa 1982), and Iowa Code section 17A.14(1) (2009), an Administrative Law Judge (ALJ) ruled hearsay is admissible in administrative hearings. As for Dr. Butt's confrontation-rights claim, the ALJ noted the right to cross-examination extends to witnesses who appear at an administrative hearing or whose testimony is submitted in written form. See Iowa Code § 17A.14(3).
However, if an administrative record is composed solely of hearsay evidence, a reviewing court will examine the evidence closely in light of the entire record to see whether it rises to the necessary levels of trustworthiness, credibility and accuracy required by reasonably prudent persons in the conduct of their serious affairs. Schmitz v. Iowa Dep't of Human Servs., 461 N.W.2d 603, 607-08 (Iowa Ct. App. 1990).
The fact that Exhibits 2-11 contain hearsay statements does not make them inadmissible in this proceeding. In making its fact findings, the Board will have to review all of the relevant evidence in the context of the entire record, determine the credibility of the evidence, and determine whether it constitutes the type of evidence upon which reasonably prudent persons rely in conducting their serious affairs. If it does not meet this standard, upon review of the entire record, it may not be relied on to make a fact finding. Exhibits 2-11 are all relevant to the Statement of Charges and are the types of documents typically reviewed by the Board in making its decisions.
After additional issues dealing with the availability of witnesses and continuances, the matter was heard before a panel of medical examiners on July 7, 2011. Dr. Butt again raised objection to exhibits 2-11, complaining they "are hearsay upon hearsay upon hearsay."
Board of Medicine hearing.
Eight witnesses testified, including Dr. Butt. However, Nurse #1 (Smith), the person referenced in paragraph A of the board's factual allegations, did not appear or testify at the hearing. Nurse #2 (Portz), the person referenced in paragraph D, did appear and testify.
Exhibit 6 was Smith's internal sexual harassment/sex discrimination complaint form. In her complaint she asserted that on February 23, 2008, Dr. Butt "asked if we could be in a relationship. When response was no, He got angry and stated that if we could not have that kind of relationship then we could not have a working relationship and I was fired." Where the form asks for written documentation, Smith wrote: "38 missed calls on cell phone---many messages on home and cell phone stating he was sorry." She relayed other conversations she had with Dr. Butt on Friday, February 22, Saturday the 23rd, Sunday the 24th, and Tuesday the 26th.
During the testimony of Laura Aldis, counsel for Dr. Butt objected to any testimony as to what Smith "did or didn't say" because it was hearsay. He was granted a standing hearsay objection, "but it's overruled."
Michelle Waltz, the director of human resources for Medical Associates, testified that the first time any issue of significance concerning Dr. Butt came to her attention was when float nurse Portz asked her to attend a meeting Portz had been summoned to by Dr. Butt on February 11, 2008. Portz assumed she was going to be reprimanded by Dr. Butt. Waltz testified she generally participated in meetings of physicians and nurses "as a representative or a neutral party as well as to document any incident that had occurred." Dr. Butt did not want Waltz present and insisted she leave. This concerned Waltz because Dr. Butt stated something about "if Medical Associates is going to employ people like this that there would be a lawsuit in the future." She also stated, "he did not supervise [Portz], and she had actually never even worked with him so there—there really was no reason on a professional level that the two of them would be having a discussion together."
Waltz and her immediate supervisor, Abe Chacko, later obtained statements from Dr. Butt and Portz about the meeting. Dr. Butt reported that the meeting "was something related to the hospital and that it was resolved." Portz gave a statement by letter dated February 11, 2008, in which she wrote that Smith approached her at about noon that day and announced that Dr. Butt would like to have a meeting with her at 3:30 and said, "You've been summoned." Portz "assumed the meeting was regarding so-called rumors that [Smith] and I discussed over the weekend." Portz asked Waltz to attend the meeting with her. According to Portz, after insisting Waltz leave, Dr. Butt told Portz she was "barking" outside the clinic and he was going to "crush" her. She relayed several other statements made by Dr. Butt. She wrote that Waltz and Chacko "gave me the option to file a formal complaint that would go before the other physicians, " but she decided not to because they "could not say if I would be terminated or not, due to the fact that it would be a 'he said, she said'"; Portz was a probationary employee; the community was in desperate need of a cardiologist when Dr. Butt came; and "I believed that I would be terminated if I pursued this issue." Portz concluded her statement,
I do, however, believe that I was threatened and harassed by Dr. Butt on Medical Associates time. I am hoping this behavior will not be tolerated from physicians in the future. I am also hoping for a long life ahead of me. If something does happen to me; I hope that Medical Associates will enlighten investigators of the preceding event that has occurred with Dr. Butt.
Waltz testified the next issue that arose concerning Dr. Butt was when Smith approached her on February 26, 2008. Smith was "very upset" and "discussed a sequence of events that had gone on the prior weekend." Waltz further described Smith's statements. Waltz provided Smith with a sexual harassment complaint form and "indicated that for us to take action further we needed her information." Waltz testified about her investigation and the management committee's actions. Waltz further testified that later on in the week she received a phone message from Smith saying she wanted everything dropped. Waltz met with Smith on February 29 and was told Smith was being contacted by others "asking her to drop it" and "she was being offered money to stop talking about anything." Waltz testified that the management committee met with Dr. Butt on March 3. After that meeting, a motion was approved to proceed with Dr. Butt's termination.
Portz testified at the hearing that during the February 11, 2008 meeting with Dr. Butt, he told her she "was never going to work as a nurse again, that he was going to crush" her. She testified further that he stated:
He was going to file a lawsuit for defamation, of character, that I was barking outside of the clinic and spreading rumors. And then he just kind of attacked me verbally with, you know, what if I accused you of this, would you like that. I was only allowed to answer yes or no.
. . . He brought my mom and dad into this too.
Q. And what did he say about that?
A. He asked me if I would like it if he told people that my mom was a whore and if I would like it if he told people that my dad was a dirty, filthy pig. And I'm like no, of ...