In Re Kincheloe

157 S.E.2d 833 (1967)

272 N.C. 116

In the Matter of Franklin S. KINCHELOE, Jr., M.D.,'s Application for Review of Order of Board of Medical Examiners of the State of North Carolina.

No. 540.

Supreme Court of North Carolina.

November 29, 1967.

*840 Albert A. Corbett, Smithfield, for Franklin S. Kincheloe, Jr., M.D.

Smith, Leach, Anderson & Dorsett, by John H. Anderson, Raleigh, for The Board of Medical Examiners of the State of North Carolina.

PLESS, Justice.

G.S. § 90-14 provides that the Board of Medical Examiners may revoke a physician's license, "when, after due notice and hearing, it shall find [he] * * * has been guilty of * * * any unprofessional or dishonorable conduct unworthy of, and affecting, the practice of his profession * * *." It further provides that its findings and actions shall be subject to review upon appeal to the Superior Court.

G.S. § 90-14.10 says that upon the review, the case shall be heard by the judge without a jury, upon the record; that "[t]he court may affirm the decision of the Board or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the accused physician have been prejudiced because the findings or decisions of the Board are in violation of substantive or procedural law, or are not supported by competent, material, and substantial evidence admissible under this article, or are arbitrary or capricious."

G.S. § 90-14.11 authorizes any party, including the Board, to appeal to the Supreme Court from the decision of the Superior Court.

The public generally has respect for the learned professions: medical, legal and divinity. If that confidence is to be maintained, it can only be because the ninety-nine per cent of the ethical, honorable members of their professions insist that the one per cent, or less, who violate their responsibilities and duties are promptly shorn of the opportunity to do so. Here, a group of eminent doctors of the very highest character and reputation have (and the record shows they did it reluctantly and regretfully) found their associate guilty, upon impressive evidence, of "lustful lascivious and unprofessional conduct." The Court found that these findings were supported by the evidence, as was its order that his license to practice medicine be revoked.

However, the Court also found that Dr. Kincheloe did not receive a fair and impartial hearing in that "incompetent evidence outside the scope of his notice was heard and most probably considered by the Board." The finding does not specify this evidence, but upon consideration of the record, we can only construe it as holding improper the questions by the members of the Board regarding the respondent's previous violations, which had resulted in the suspension of his license. This ruling is fallible. (1) The respondent first interjected this feature when he referred to his hearing before the Board three and a half years earlier and said that he was ashamed of the matters then investigated. The admission of incompetent evidence is cured when substantially the same evidence is theretofore or thereafter admitted without objection. 1 Strong, N.C.Index 2d, Appeal and Error, § 48. Thus, if evidence regarding his previous license revocation were incompetent, it had "theretofore been admitted without objection" in the form of the respondent's voluntary statement. (2) The proceedings show that the previous charges were already known to the members of the Board so that information given in the present investigation added no new knowledge. (3) Examination of a defendant, or respondent, as to past misconduct is competent for the purpose of impeachment and may properly be considered by a jury (or a board) in weighing the value and credibility of his testimony. Stansbury, in his helpful work, N.C. Evidence, Witnesses, § 42, summarizes the law of cross examination with many citations to support the statement:

*841 "Cross-examination may be employed to test a witness's credibility in such an infinite variety of ways that an attempt to list them would be futile. `The largest possible scope should be given,' and `almost any question' may be put `to test the value of his testimony * * * and to show his animus, feeling, or bias.' * * * [C]ross-examination is available to establish such well-recognized grounds of impeachment as bad moral character (including specific instances of misconduct), bias, self-contradiction, etc."

2 Strong, N.C. Index, Evidence, § 58, says:

"The right to cross-examine an opposing witness is a substantial right. The latitude of cross-examination for the purpose of impeachment is wide. A witness may be asked questions on cross-examination which tend to test his accuracy, to show his interest or bias, or impeach his credibility. * * * Questions relating to crime and anti-social conduct are allowed."

The Doctor was questioned about his previous troubles with the Board, as well as other questionable activities, only after he had referred to them, or it was apparent from the questions that the members of the Board already had knowledge of these activities, and no new material information was thus elicited. While no objection was taken at the time, all of the questions asked were competent and would have been admitted by any court.

In its judgment, the Court found that the prosecution of the respondent upon the charge of rape which resulted in his acquittal was not res judicata and was not a bar against these proceedings. This was correct, and yet the learned judge implied that questions regarding that trial were improper. We cannot agree. Other factors must be considered. In a criminal trial, the guilt of a defendant must be shown beyond a reasonable doubt; here only a preponderance of the evidence is required. In the criminal charge, the defendant was alleged to have committed rape here he was charged with unethical and unprofessional conduct in having sexual relations with his patienta vast difference. In the criminal prosecution, the penalty upon conviction is a death sentence or life imprisonment. In these proceedings, the maximum punishment is the loss of the respondent's license to practice medicine.

It is also implied that some disadvantage resulted to the respondent because he was not represented by counsel at the hearing, saying he could not afford to employ counsel. Also, it must be recalled that he said he didn't think this necessary and that he waived it. Even had he not done so, we know of no provision for the appointment, at public expense, of an attorney for a doctor whose office is so filled with patients that he has to decide whom he will see first. It would strain the credulity of the public to learn that, in these days, there is an indigent doctor!

No material change in the circumstances of the respondent has been shown, but we note that he is now represented by able (and not court-appointed) counsel.

The Court also found that the Board did not comply with G.S. § 90-14.6. It is as follows:

"In proceedings held pursuant to this article the Board shall admit and hear evidence in the same manner and form as prescribed by law for civil actions. A complete record of such evidence shall be made, together with the other proceedings incident to such hearing."

An examination of the lengthy record reveals no violation of this statute by the Board or its attorney. It does demonstrate a rather friendly and sorrowful feeling for the respondent, as in most of the questions he was addressed as "Frank". The only incompetent evidence we find is that the respondent was permitted to violate *842 the hearsay evidence rule and testify to the alleged immoral conduct of Deborah, which he claims was related to him by three different boys.

The respondent admitted he was in the wrong and unfair to the Board in its previous hearing but claims that he did not commit the acts attributed to him here. In the former proceeding, the evidence indicates that the respondent was a deviate, and after the suspension of his license, it had been restored to him with a warning in regard to his future conduct. If he is an uncontrollable deviate, we must all sympathize with him. If he isn't, and his acts here were as the Board found, "lustful and lascivious", the result is the same. In neither event should he be allowed to practice a profession which affords him the frequent opportunityif not the temptationto accede to his deviations or his lasciviousnesswhichever it is.

In full and complete hearings, of which the respondent had notice, evidence has been submitted to the Board which fully sustains its findings and order as set out in the statement of facts. No reason appears to question the motives and veracity of Deborah Jean Edwards. If, for any reason, she were making a false charge against the doctor, she could have testified that while in a semi-conscious condition and unable to protect herself, the respondent had sexual relations with her. The fact that she did not so testify but that this was discovered only after she had spoken of her soreness to her sisters, followed by the examination by Dr. Woodall, gives credence to the charges. Upon all of the evidence, including that of the respondent, Deborah was in his office for a sufficient length of time for the incident to occur as found by the Board. Deborah's testimony is corroborated in many details by the testimony of her mother, her sister, Mr. Emerson of the S.B.I., and Dr. Woodall. In opposition to this, we have only the denial of the respondent and rather vague substantiation of part of his statement by the witness Eason.

Upon consideration of all the evidence, we are of the opinion that it was quite sufficient to sustain the findings of the Board and that, as a matter of law, the facts found support its order revoking the license of Dr. Kincheloe. We affirm it in its entirety and also affirm that part of the Judge's order consonant with this ruling.

Upon the appeal of the Board from the order remanding the cause for hearing de novo, we are of the opinion, for the reasons set forth above, that the order was not proper, and it is hereby set aside and reversed.

The cause is remanded to the Superior Court of Wake County for judgment revoking the medical license of Dr. Kincheloe in accordance with this opinion.

As to Respondent's appealNo Error.

As to Board's appealReversed and Remanded.