Appeal of Christine Crane

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0595, Appeal of Christine Crane, the court
on July 12, 2019, issued the following order:

Having considered the briefs and limited record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The appellant, Christine Crane, appeals the decision of the New
Hampshire Board of Nursing suspending her license for three years and
imposing a $1,000 fine. She argues that the board erred by: (1) not holding a
final hearing until sixteen months after the license suspension and hearing
notice; (2) disciplining her for reasons other than those listed in the hearing
notice; and (3) making findings that, she claims, are not supported by the
record.

“RSA chapter 541 governs our review of board decisions.” In the Matter
of Bloomfield, 166 N.H. 475, 478 (2014) (quotation omitted). “Under RSA
541:13 (2007), we will not set aside the board’s order except for errors of law,
unless we are satisfied, by a clear preponderance of the evidence, that it is
unjust or unreasonable.” Id. (quotation omitted). “The board’s findings of fact
are presumed prima facie lawful and reasonable.” Id. (quotation omitted). In
reviewing the board’s findings, our task is not to determine whether we would
have found differently or to reweigh the evidence, but rather, to determine
whether the findings are supported by competent evidence in the record. See
Appeal of Phillips, 165 N.H. 226, 235 (2013). We review the board’s rulings on
issues of law de novo. Appeal of Huston, 150 N.H. 410, 411 (2003).

The appellant first argues that the board’s decision should be reversed
because the sixteen-month period between the date of the emergency license
suspension and hearing notice, March 3, 2017, and the date of the final
hearing, July 19, 2018, was “per se highly prejudicial,” in violation of her due
process rights. It is the appellant’s burden to provide this court with a record
sufficient to decide her issues on appeal, as well as to demonstrate that she
raised her issues before the board. See Bean v. Red Oak Prop. Mgmt., 151
N.H. 248, 250 (2004). Moreover, in an administrative appeal, the appellant
must first file a motion for rehearing setting “forth fully every ground upon
which it is claimed that the decision or order complained of is unlawful or
unreasonable.” RSA 541:4 (2007). “Any ground not set forth in the motion for
rehearing is not reviewable on appeal, absent good cause shown to specify
additional grounds.” Appeal of Walsh, 156 N.H. 347, 351 (2007) (quotation
omitted). The reason for this requirement is that the board should have an
opportunity to correct any alleged error in the first instance. Id.

The record in this case shows that the board initially scheduled the
hearing for March 16, 2017, fewer than ten days after it issued the hearing
notice, and that the appellant requested a continuance, which the board
granted. Although the appellant asserts that she inquired repeatedly as to the
new hearing date, the record fails to show that she argued to the board that the
passage of time was prejudicial, in violation of her due process rights. See
Bean, 151 N.H. at 250. Moreover, the record fails to show that the appellant
raised this issue in her motion for rehearing. See Walsh, 156 N.H. at 351.
Accordingly, we conclude that the appellant has failed to preserve the issue for
review. See Bean, 151 N.H. at 250.

The appellant next argues that the board erred by disciplining her for
reasons other than those listed in the hearing notice. “The notice required in
an administrative proceeding does not require the same formality, specificity,
and detail that is required in a criminal proceeding.” Bloomfield, 166 N.H. at
483. The notice in this case apprised the appellant that the purpose of the
proceeding was to “determine whether [she] has engaged in professional
misconduct contrary to RSA 326-B:37, II and/or Nur 402.04(b).” The notice
stated that the board had received a report from her employer alleging that she
had given her patients “statistically higher administrations of Hydromorphone
than her peers,” and that she had engaged in “instances of atypical nursing
practice in connection with pain administration.” The notice alleged that the
appellant admitted that she self-medicates at home with opioids, including
Hydromorphone and Percocet, and that she self-administers intravenous saline
at her home. The notice also alleged that the appellant admitted that, on at
least one occasion, she used her husband’s fentanyl patch. The board advised
the appellant that the specific issues to be determined at the hearing were
whether she: (1) diverted Hydromorphone; (2) used drugs to the extent that it
may have impaired her ability to practice nursing safely; and (3) made false,
incorrect, or inconsistent entries in patients’ records.

Following a hearing, the board found that, although “[n]o
Hydromorphone was unaccounted for,” the appellant “withdrew 147 vials of
Hydromorphone” during a period of less than three months, which was
“approximately three times more than her peers.” The board found that the
appellant considers herself to be “an advocate for patients,” and that she
“would request pain medication for patients with low pain scores,” and “would
routinely approach the provider about ordering pain medication when a patient
reported having pain.” The board found that the appellant admitted that she
self-medicates at home with intravenous liquids and opioids, including
Hydromorphone and Percocet, for a medical condition that she failed to
disclose to her employer. The board found that the appellant engaged in
misconduct by: (1) “advocating for high dose narcotics for patients”; (2) “self-

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treating with opioid medications and self-administering intravenous saline”;
(3) using her husband’s Lidocaine patch without a prescription; and (4) “failing
to provide correct information on employment documents.”

The appellant argues that the board exceeded the proper scope of the
proceeding by basing its decision upon findings that are “drastically different”
from the allegations in the hearing notice. The record shows, however, that the
board’s findings differed only somewhat from the allegations in the hearing
notice, based upon the appellant’s responses to the allegations. The appellant
does not argue that the board’s findings do not, as a matter of law, constitute
nursing misconduct. Nor does she provide a developed legal argument to show
that she was prejudiced by any alleged notice deficiency in the preparation of
her defense. See Bloomfield, 166 N.H. at 485 (party claiming deficient notice
must show prejudice). Based upon this record, we cannot conclude that the
board erred by disciplining the appellant for reasons that differed to some
extent from those listed in the hearing notice. See id.

Finally, the appellant argues that the board’s findings are unsupported
by the record. As previously noted, it is the appellant’s burden to provide a
record sufficient to decide her issues on appeal. Bean, 151 N.H. at 250.
“If the moving party intends to argue in the supreme court that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence, he
shall include in the record a transcript of all evidence relevant to such finding
or conclusion.” Sup. Ct. R. 15(3). The appellant has failed to provide a
transcript of the July 19, 2018 board hearing. Absent a transcript, we must
assume that the evidence was sufficient to support the board’s findings. See
Atwood v. Owens, 142 N.H. 396, 396 (1997).

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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