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State of NevadaBoard of Medical Examiners
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Released December 3, 1998
On November 25, 1998, the Nevada Supreme Court Issued a Writ of Prohibition against Clark County District Court Judge Mark W. Gibbons. The Court said that Judge Gibbons issued a discovery order in excess of his jurisdiction, and that the order was improper.
Judge Gibbons had entered an order requiring the Nevada State Board of Medical Examiners to produce an investigative file for his review and inspection and possible subsequent disclosure. Judge Gibbons, in his ruling construed a Nevada Revised Statute which allows the Board of Medical Examiners to keep investigations and records of investigations confidential, to give him the right to utilize his discovery powers to review the confidential records and rule whether or not he would make those confidential records public.
When The Nevada State Legislature enacted the statute making investigative records confidential in 1985, it did so to encourage citizens to feel free to file complaints against physicians without fear of retaliation, as well as protect physicians from adverse publicity on complaints lodged against them which the Board found to be without merit. All formal proceedings of the Board, including licensure information and hearings conducted by the Board which may result in physician discipline are open to the public for inspection and review, but investigative files are kept confidential by law.
The Nevada Supreme Court said in its decision, that:
"The statute states, without any conditions, that the listed records 'may be kept confidential' by the BME. A court should presume that the legislature intended to use words in their usual and natural meaning....... the plain meaning of the word 'may' usually and naturally means to 'have the power to' or 'to be free to.'....... we conclude that the plain language of the statute unequivocally confers upon the BME the right, privilege, or power to keep confidential its proceedings and files not otherwise required by law to be disclosed."
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