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MISSISSIPPI BOARD OF NURSING v. EUNICE BELK

DECEMBER 11, 1985

MISSISSIPPI BOARD OF NURSING
v.
EUNICE BELK



BEFORE WALKER, DAN LEE AND SULLIVAN

DAN LEE, JUSTICE, FOR THE COURT:

Eunice Belk appeared before the Mississippi Board of Nursing on January 17, 1979, to answer charges that she was guilty of professional misconduct in failing to follow the Board's procedures for certification as a nurse anesthetist. The Board found her guilty of professional misconduct, and held that she would not be allowed to practice as a nurse anesthetist in Mississippi until she complied with the Board's certification procedures. Belk appealed to the Chancery Court of Bolivar County, assigning the following as error:

(1) The record contains no copies of any rules or regulations of the Board pertaining

 to a grandfather clause for anesthetists, certified or otherwise, but only some correspondence on the subject.

 (2) The purported rules and regulations of the Board regarding a more stringent grandfather clause for anesthetists is beyond the scope and authority of the Mississippi Nursing Practice Law, and there is no proof of their joint adoption by the State Board of Health.

 (3) The purported rules and regulations of the Board are unconstitutional and in violation of the due process and equal protection clauses of the Federal and State constitutions by providing a more restrictive grandfather clause for anesthetists than the legislature provides itself for other registered nurses.

 (4) Section 73-15-29 (f), Miss. Code of 1972, as amended, providing for revocation of license for `professional misconduct' is unconstitutionally vague and uncertain and without sufficient specific criteria for a person to know in advance what constitutes grounds for revocation of license.

 (5) The findings of the Board are not supported by credible evidence and its decision that appellee was guilty of professional misconduct is unreasonable, arbitrary and capricious.

 The Board of Nursing moved to dismiss the appeal on the grounds that it was taken out of the statutory time limit. The chancellor found that the delay in taking the appeal was justifiable, and the Board of Nursing took an interlocutory appeal on that issue to this Court. That appeal was dismissed on July 30, 1980, in case #51,907, in an opinion not designated for publication. Finding that the appeal would not dispose of the entire cause, it was dismissed by this Court and remanded to the Chancery Court of Bolivar County.

 On May 24, 1984, the chancellor issued his order, finding for Eunice Belk on all of the aforementioned assignments of error. He reversed the decision of the Mississippi Board of Nursing and reinstated Belk's license to practice as a nurse anesthetist. The Board of Nursing has appealed, and assigns the following as error:

 Proposition 1. The chancellor erred in considering matters outside the record.

 Proposition 2. The rules and regulations of the Mississippi Board of Nursing are proper and not beyond the scope and authority of the Board.

 Proposition 3. The rules and regulations of the Board are not more restrictive toward certified registered nurse anesthetists.

 Proposition 4. The lower court erred in finding that the term "professional misconduct" is without specific criteria.

 Proposition 5. The lower court erred in finding that the Board's decision was unreasonable, arbitrary, and capricious.

 FACTS

 At the time of her hearing before the Mississippi Board of Nursing, in 1979, Eunice Belk had been a registered nurse for twenty-one years. She had been a nurse anesthetist for sixteen years, having graduated from the school of anesthesia of Charity Hospital in New Orleans in 1962. At the time she graduated from school, special certification as a nurse anesthetist was not required, so Belk did not take the examination which would have qualified her as a member of the anesthetist association. Until 1975, the association was merely a professional society, and membership in the association did not denote special professional qualifications. Belk testified that her failure to take the qualilfying examination was not due to lack of interest, but due, rather, to the fact that the staff shortage at the Bolivar County Hospital prevented her from taking time off to study for it.

 In December, 1978, Belk received a letter from the Mississippi Board of Nursing, in which she was informed that the Board would seek the revocation or suspension of her nursing license. The Board charged her with a violation of Miss. Code Ann. 73-15-29 (f) (1972) in practicing nursing beyond the authorized scope of her license. The statute, as it read at that time, stated:

 The board shall have power to deny, revoke or suspend any license to practice nursing issued by the board ...


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