Alsager v. Bd. of Osteopathic Med. & Surgery
| Decision Date | 15 November 2016 |
| Docket Number | C/w No. 47727-1-II),No. 47367-4-II (,47367-4-II ( |
| Citation | 196 Wash.App. 653,384 P.3d 641 |
| Court | Washington Court of Appeals |
| Parties | Dale E. Alsager, D.O., Appellant, v. Board of Osteopathic Medicine and Surgery, Department of Health, State of Washington, Respondents. |
Rhys Alden Sterling, Attorney at Law, P.O. Box 218, Hobart, WA, 98025-0218, for Appellant.
Kristin G. Brewer, Thomas F. Graham, Office of the Attorney General, P.O. Box 40100, Olympia, WA, 98504-0100, for Respondents.
PART PUBLISHED OPINION
Bjorgen
, C.J.
¶1 Dale Alsager appeals the Washington Board of Osteopathic Medicine and Surgery's1 permanent revocation of his license to practice medicine, as well as several of the Board's prehearing rulings and its order denying reconsideration. He makes two primary arguments. First, he contends that the Board violated his federal and state constitutional rights against compelled self-incrimination by sanctioning him for failing to testify and to disclose prescription records. Second, he contends that the Board violated his federal and state constitutional rights against unlawful searches and seizures by searching and procuring his prescription records from the state's prescription monitoring program and participating pharmacies. He also argues that the superior court erred by dismissing his petition for declaratory judgment under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, that the Board's findings of fact and conclusions of law were insufficiently supported, that a panel member should have been disqualified, and that documentary evidence was admitted without authentication.
¶2 We hold in the published portion of this opinion that the Board's proceedings did not deprive Alsager of any right against compelled self-incrimination and that the Board and Department of Health acted within constitutional bounds in procuring the prescription records. In the unpublished portion of this opinion, we hold that the superior court properly dismissed Alsager's petition for declaratory action, that the Board's findings of fact and conclusions of law were sufficiently supported, that Alsager failed to establish grounds for the panel member's disqualification, and that any error in admitting the documentary evidence without assessing authentication was harmless. Accordingly, we affirm the Board's revocation of Alsager's license to practice medicine.
FACTS
¶3 In 2008, the Board sanctioned Alsager for inappropriately prescribing potentially dangerous medications without conducting necessary patient examinations.2 The sanctions prohibited Alsager from prescribing Schedule II or III controlled substances until he completed an approved residency or pain management training course.
¶4 In 2012, the Board received a complaint regarding Alsager's treatment of one of his patients and notified Alsager of the complaint. Following the Uniform Disciplinary Act (UDA), chapter 18.130 RCW, the Board found that the complaint had merit and initiated an investigation. RCW 18.130.080(2)
. An investigator contacted Alsager, requesting that he produce a copy of the patient's file, which included prescription records, and make a written statement responding to the complaint.
¶5 Alsager did not answer the request or provide the requested information. Instead, he asked the Board to quash the production demand on constitutional grounds. The Board denied Alsager's request. The investigator then performed a search of the State's prescription monitoring program database, which archives prescriptions for medical drugs filled in Washington. See Chapter 70.225 RCW. This search uncovered prescription records showing that Alsager prescribed Schedule III controlled substances to his patients and himself after the Board issued its prior order prohibiting him from doing so.
¶6 Based on the information the investigator uncovered from the database, the Board authorized additional investigation. The investigator again contacted Alsager, this time requesting medical records for patients to whom Alsager had prescribed Schedule II or III controlled substances since the Board issued its 2008 order. Alsager responded, asserting that his Fourth and Fifth Amendment rights protected him from compelled cooperation. The investigator then requested prescription records from various pharmacies.
¶7 Alsager petitioned the Board under RCW 34.05.240
for an order declaring that he need not testify or produce the requested records on constitutional grounds. He also requested clarification as to the scope of the Board's 2008 order. The Board denied the petition and declined to clarify the scope of the order, finding that Alsager “ha[d] not demonstrated an uncertainty necessitating resolution exists with regard[ ] to [its] language.” Administrative Record (AR) at 1919.
¶8 Alsager then petitioned the superior court under the UDJA for a declaratory judgment that the Board could not require him to testify or produce the records and that the statutes imposing those requirements were facially unconstitutional. The superior court granted the Board's motion for summary judgment and dismissed the case, reasoning that Alsager could not circumvent Washington's Administrative Procedure Act (APA), chapter 34.05 RCW, by seeking a declaratory judgment. Instead, the superior court ruled that Alsager must utilize the judicial review process under the APA. Alsager appealed, and we have consolidated this appeal with the others described below.
¶9 Alsager also brought suit in federal court seeking a declaration that his compelled cooperation would violate his constitutional rights. The federal court denied him the relief he sought, similarly reasoning that the APA provided the appropriate avenue for review of his constitutional claims. Alsager v. Bd. of Osteopathic Med. & Surgery , noted at 573 Fed.Appx. 619 (9th Cir. 2014).
¶10 The Board ultimately charged Alsager with unprofessional conduct under the UDA for violating the 2008 order and failing to cooperate with the investigation. For this conduct, the Board summarily suspended his license to practice. The Board held a show cause hearing on the summary suspension at Alsager's request, after which it upheld that sanction.
¶11 Before the hearing on his charges before the Board, Alsager moved for several prehearing rulings. Among other matters, he moved for rulings that his constitutional rights precluded compelled testimony or production of documents, that several members of the Board should be disqualified due to the fact that they practiced in the same geographic area as Alsager, and that prescription records obtained from the prescription monitoring program database were not authenticated and were therefore inadmissible. The Board denied each of these motions.
¶12 The Board held its hearing on the merits of Alsager's charges on June 4, 2014. The Department of Health provided the prescription records from the database, as well as prescription records from pharmacies obtained by the investigator. The investigator testified and was cross-examined. Instead of making specific objections or focusing on specific topics, Alsager refused to testify or present any evidence on the general basis of the Fourth and Fifth Amendments. The presiding officer ruled that these protections did not apply and stated that it would instruct the panel that they may draw negative inferences from Alsager's refusal to testify. The Department then directed specific questions to an empty witness stand, and Alsager provided no individual responses or invocations of his rights.
¶13 The Board issued its Final Order on July 9, 2014. It concluded that Alsager had committed unprofessional conduct as defined in RCW 18.130.180
by repeatedly violating the 2008 order and by refusing to cooperate with the investigation. Based on these conclusions, the Board permanently revoked Alsager's license to practice osteopathic medicine in Washington. Subsequently, the Board denied Alsager's motion for reconsideration. Alsager appealed to the superior court, which denied the petition for judicial review.
¶14 Alsager appeals various prehearing orders by the Board, the Board's Final Order, the Board's denial of reconsideration, and the superior court's denial of the petition for judicial review. We have consolidated this appeal with his earlier appeal of the superior court's dismissal of his declaratory judgment action.
ANALYSIS
¶15 Alsager presents two primary arguments. First, he argues that the Board violated his constitutional right against compelled self-incrimination by requiring him to cooperate with its investigation. Second, he contends that it engaged in a constitutionally unlawful search and seizure by searching the prescription monitoring program for records of the prescriptions he wrote. Alsager additionally argues that the Board's Final Order was not properly supported, one of the Board's panel members should have been disqualified from serving on the panel, and the Board erred by admitting prescription records that were not authenticated. In his appeal of the superior court's decision on declaratory judgment, he contends that the superior court improperly dismissed his petition on grounds that the declaratory action was unavailable in light of the judicial review process of the APA. We are not persuaded by these arguments.
¶16 Alsager argues that because a professional disciplinary proceeding is “quasi-criminal” in nature, the Board violated his constitutional right against compelled3 self-incrimination by requiring him to testify and produce testimonial records. Br. of Appellant at 1-2. We disagree that these medical license revocation proceedings were sufficiently criminal in nature to require application of the Fifth Amendment protection against self-incrimination. Consequently, the Board did not violate Alsager's Fifth Amendment rights.
¶17 We review final administrative decisions under the APA. Feil v. E. Wash. Growth Mgmt. Hr'gs Bd. , ...
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...to criminal cases, one may assert the privilege against self-incrimination in any proceeding. Alsager v. Bd. of Osteopathic Med. & Surgery , 196 Wash. App. 653, 664, 668-69, 384 P.3d 641 (2016), cert. denied , ––– U.S. ––––, 138 S. Ct. 165, 199 L.Ed.2d 40 (2017). ¶18 A "party in a civil pro......
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