Alsager v. Washington State Board of Osteopathic Medicine and Surgery, No. 39301-8-II (Wash. App. 3/30/2010)
| Decision Date | 30 March 2010 |
| Docket Number | No. 39301-8-II.,39301-8-II. |
| Court | Washington Court of Appeals |
| Parties | DALE E. ALSAGER, D.O., individually and with respect to his licensure as an Osteopathic Physician and Surgeon, Credential No. OP00001485, Appellant, v. WASHINGTON STATE BOARD OF OSTEOPATHIC MEDICINE AND SURGERY, a State Board and Agency as established by law under RCW 18.57.003; WASHINGTON STATE DEPARTMENT OF HEALTH, an administrative agency of the State of Washington; ADJUDICATIVE SERVICE UNIT, a unit of the Washington State Department of Health; and JOHN F. KUNTZ, Health Law Judge, Presiding Officer, Adjudicative Service Unit, Department of Health, Respondents. |
Appeal from Thurston Superior Court. Docket No: 08-2-02116-2. Judgment or order under review. Date filed: 05/01/2009. Judge signing: Honorable Richard D. Hicks.
Counsel for Appellant(s), Rhys Alden Sterling, Attorney at Law, Po Box 218, Hobart, WA, 98025-0218.
Counsel for Respondent(s), Callie Anne Castillo, WA State Attorney General Office, Highway License Bldg, Po Box 40100, Olympia, WA, 98504.
Cassandra Ann Buyserie, Attorney at Law, Po Box 40100, Olympia, WA, 98504-0100.
S. Kim O'neal, Attorney at Law, Po Box 40100, Olympia, WA, 98504-0100.
UNPUBLISHED OPINION
Dale Alsager, a licensed doctor of osteopathic medicine, appeals the trial court's decision upholding an order by the Department of Health's (Department) Board of Osteopathic Medicine and Surgery (Board) imposing professional sanctions on him. He argues that the Board (1) erred in accepting the cause of death as listed on a patient's death certificate as the patient's legal cause of death, (2) based its conclusions of law on erroneous standards of care (3) imposed sanctions in excess of its statutory and constitutional authority, and (4) made findings of fact substantial evidence did not support. We affirm.
FACTS The State of Washington issued Alsager a license to practice osteopathic medicine in 1995. Alsager treated the patients at issue in this case, A, B, C, D, E, F, and G,1 at various times between 2001 and 2006 at his practice in Maple Valley. Patients A through E are related to one another. And Patients F and G were involved in a relationship with each other.
Alsager treated Patient A for lower back pain and numbness in his left knee. Alsager prescribed Duragesic and Percocet (opioids) for pain, without conducting a physical examination. Over the next several days, Alsager increased Patient A's dosage for Duragesic and Percocet and prescribed clonazepam (a benzodiazepine anti-seizure medication). Patient A returned to Alsager for care several years later, after which Alsager diagnosed Patient A with colitis and prescribed oxycodone (an opioid pain medication), Xanax (a benzodiazepine anti-anxiety medication), and alprazolam (Xanax).
Later in 2005, Patient A visited Alsager after a car accident. Alsager continued to give Patient A prescriptions. Then on September 13, Patient A saw Alsager and asked for more medication because of continued pain. Alsager provided Patient A with a fentanyl (opioid) patch, along with other pain prescriptions. The next morning, Patient A died. The King County Medical Examiner concluded that Patient A died from acute intoxication due to fentanyl, diazepam (a benzodiazepine anti-anxiety medication), oxycodone, and carbamazepine (anti-seizure medication).
Alsager treated Patient B for back pain. Similar to Patient A, Alsager prescribed various opioids and benzodiazepines for Patient B. Alsager also diagnosed Patient B with colitis and prescribed intravenous and oral antibiotics regularly. Alsager further administered vitamin B12 and folate (vitamin B) injections to Patient B even though Alsager did not verify the need for the injections. Throughout Alsager's treatment of Patient B, Alsager never referred Patient B to any other medical professionals to address his health issues.
Alsager treated Patient C for a series of ailments over the years. Alsager prescribed benzodiazepines to Patient C for anxiety. Alsager continued this treatment regimen and made no other attempts to find alternative care for Patient C's anxiety. Alsager also administered vitamin B12 and folate injections to Patient C, much like Patient B.
Alsager treated Patient D for shoulder pain, without referring Patient D to an orthopedic specialist. Alsager administered shoulder joint injections, which did not improve Patient D's condition. Alsager then prescribed Soma (muscle relaxant medication) and benzodiazepines in order to treat muscle spasms. Even though Alsager later learned that the police arrested Patient D for prescription drug forgery, Alsager continued to provide him with pain medications. Patient D altered a prescription a few months later, and Alsager again failed to address Patient D's pain medication dependency.
Alsager treated Patient E for chronic pain. Despite a series of occurrences that should have suggested that Patient E was abusing pain medications, such as information from Patient E's employer that he seemed drugged at work, that Patient E reportedly abused his wife, and that Patient E had a history of alcoholism, Alsager increased Patient E's pain medication dosage. Alsager also diagnosed Patient E with rheumatoid arthritis even though Patient E did not present with the proper signs and symptoms. Alsager did not refer Patient E to a rheumatologist. Alsager also administered injections of immunosuppressants, vitamin B12, and folate, all without adequate testing.
Alsager treated Patient F for chronic pain. Despite evidence that Patient F was not taking pain medication as prescribed, Alsager did not document any steps he took to address this. Alsager relied on Patient F's own diagnosis of rheumatoid arthritis to serve as the basis of continued pain treatment. Despite underlying infections, Alsager administered a series of joint and spinal injections to Patient F.
Alsager treated Patient G for chronic pain as well. Patient G's primary source of pain stemmed from a fractured wrist. Although Patient G also saw an orthopedist for his wrist injury, Alsager administered joint injections and apparently did not confer with the orthopedist. Although Patient G's urinalysis tested positive for marijuana but negative for the opioids Alsager prescribed, Alsager did not seek to determine why Patient G was not taking the pain medication. Patient G then experienced seizures from benzodiazepine withdrawal. Patient G continued to see Alsager following Patient G's release from the hospital for the seizures. Alsager prescribed more benzodiazepines for Patient G soon thereafter.
On August 1, 2006, the Department, through the Board, issued a Statement of Charges against Alsager, alleging unprofessional conduct under RCW 18.130.180(4) and (7)2 for providing treatment to Patients A, B, C, D, E, F, and G that fell below the standard of care. On August 8, the Board issued an "Ex Parte Order of Summary Restriction" that "prohibited Alsager from prescribing Schedule II or Schedule III controlled substances, pending further proceedings before the Board."3 Clerk's Papers (CP) at 77.
The administrative hearing began on April 21, 2008. At the outset, the presiding officer dismissed the allegation that Alsager violated RCW 18.130.180(7) because the parties could not determine which state or federal statute or administrative rule Alsager violated. The hearing continued only on whether Alsager violated RCW 18.130.180(4). Three Board members, all osteopathic physicians, heard testimony from several doctors, including John Lacy, M.D. (medical examiner); Jon Hillyer M.D. (the Department's expert); James Song, M.D. (Patient A's neurologist); Wayne Anderson, D.O. (Alsager's witness); Thomas Ray, M.D. (Alsager's witness); and Alsager himself.
Hillyer, an anesthesiologist specializing in pain management, testified about his review of the medical records for Patients A, B, C, D, E, F, and G. Hillyer described in detail how Alsager's care for each patient fell below the requisite standard.
With regard to Patient A, Hillyer testified that Alsager prescribed pain medications in unusually high doses and that the circumstances did not support this treatment approach, particularly in light of Patient A's seizure condition. Song testified that he treated Patient A for a seizure condition and that he had forwarded that information to Alsager. As to Patient F, Hillyer testified that Alsager failed to refer Patient F to a rheumatologist after diagnosing him with rheumatoid arthritis.
Anderson, an osteopathic physician specializing in neurology and pain management, testified on Alsager's behalf. Anderson testified specifically as to Patient A's cause of death, which he believes resulted from sudden unexplained death in epilepsy patients (SUDEP syndrome). Anderson also testified that Alsager's care for Patients A, B, C, D, E, F, and G did not fall below the standard of care. Ray, a forensic pathologist, also testified specifically as to Patient A's cause of death, which he believes resulted from seizures, not pain medications.
The Board issued a corrected final order on August 15, which found, by clear and convincing evidence, that Alsager committed unprofessional conduct. The Board imposed a series of sanctions and restrictions on his ability to practice medicine. Specifically, the Board (1) prohibited him from prescribing Schedule II and Schedule III controlled substances until he completed a Board approved training course or residency regarding pain management; (2) required that any and all diagnostic MRI, CT, or Dexa scans taken be reviewed by a qualified radiologist; and (3) ordered Alsager to pay a $20,000 administrative fine.
Alsager sought judicial review of the Board's final order in the superior court. The superior court, in its appellate capacity, affirmed the board's final order on May 1, 2009. Alsager appeals.
We apply the standards...
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