Havsy v. State Department of Health Board of Osteopathic Medicine & Surgery, No. 53198-1-I (WA 9/27/2004)
| Decision Date | 27 September 2004 |
| Docket Number | No. 53198-1-I,53198-1-I |
| Court | Washington Supreme Court |
| Parties | SCOTT L. HAVSY, D.O., Appellant, v. WASHINGTON STATE DEPARTMENT OF HEALTH BOARD OF OSTEOPATHIC MEDICINE AND SURGERY, Respondent. |
Appeal from Superior Court of Thurston County. Docket No: 99-2-02194-8. Judgment or order under review. Date filed: 11/21/2002. Judge signing: Hon. Richard D Hicks.
Counsel for Appellant(s), Mark Gregory Olson, Attorney at Law, 2825 Colby Ave Ste 302, Everett, WA 98201-3558.
Counsel for Respondent(s), Sharon Sullivan Eckholm, Washington Attorney General/ Lic & Emp, PO Box 40110, Olympia, WA 98504-0110.
Scott L. Havsy was licensed to practice osteopathic medicine in Washington. The State Board of Osteopathic Medicine and Surgery issued charges against Havsy alleging that on numerous instances Havsy had engaged in unprofessional conduct. The Board's Presiding Officer conducted a hearing. Concluding that Havsy had engaged in unprofessional conduct, the Presiding Officer imposed sanctions. We affirm.
Scott L. Havsy, D.O. became licensed to practice osteopathic medicine in the state of Washington in 1980. Osteopathic physicians are licensed and disciplined by the State Board of Osteopathic Medicine and Surgery (the Board). RCW 18.57.005, .011. On September 22, 1997, the Board issued a statement of charges against Havsy alleging numerous instances of unprofessional conduct in violation of RCW 18.130.180.1 The charges stemmed from several complaints from Havsy's patients regarding his behavior, actions, and treatment.
Pursuant to RCW 18.130.050, the State appointed a health law judge to act as the Presiding Officer (PO) for Havsy's hearing.2 Havsy filed a motion for a panel hearing, which the Board denied.
The PO conducted a hearing from September 13-22, 1999. After the hearing, the PO issued findings of fact and conclusions of law and a final order. The PO ordered the suspension of Havsy's osteopathic physician's license for five years. He permitted a stay of the suspension if Havsy fulfilled several conditions. The conditions included the following:
4.2 {Havsy} shall obtain a psychological evaluation addressing the conduct described in this Order. Within thirty (30) days of the effective date of this Order, {Havsy} shall schedule the psychological evaluation, which shall be conducted as soon as feasible. The psychological evaluation shall be obtained at {Havsys} expense. {Havsy} shall sign all necessary waivers to allow the Department staff to communicate with the evaluator as needed. Upon completion of the evaluation, {Havsy} shall assure that the Board receives a complete evaluation report. The psychological evaluation and report shall be accomplished through {Havsy's} compliance with the following:
4.3 For all new patients seen after the effective date of this Order, {Havsy} shall: (a) provide the patient with a written estimate of costs of all diagnostic tests and procedures other than standard x-rays and physical examination; (b) inform the patient that in the event some of those tests or procedures are not covered by the entity to whom the bill for the tests is submitted, the patient shall be liable for the costs of the tests or procedures not covered; and (c) inform the patient that he or she has the right to decline to undergo those diagnostic procedures
4.8. {Havsy} shall permit an investigator of the Department of Health to audit {his} records and review practice activities at {his} place of employment or practice on a random, unannounced basis for a minimum of two times a year.
Havsy filed a petition for judicial review of the PO's order in Thurston County Superior Court. Just prior to scheduled argument, the Washington Supreme Court issued its opinion in Nguyen v. State Dep't of Health Medical Quality Assurance Comm'n, 144 Wn.2d 516, 29 P. 3d 689 (2001), cert. denied, 535 U.S. 904, 122 S.Ct. 1203, 152 L.Ed.2d 141 (2002). In Nguyen, the Supreme Court held that because a medical license is a constitutionally protected property interest, due process requires application of the clear and convincing evidence standard in a medical disciplinary board action. Nguyen, 144 Wn.2d at 522-23. The Thurston County Superior Court therefore remanded the case to the PO to conduct further proceedings as necessary to comport with Nguyen.
In November 2001, the PO reaffirmed his original order, concluding that relevant findings of fact from its original order had been proved by clear and convincing evidence. Havsy sought judicial review of the PO's second order affirming its original findings of fact and conclusions of law. The Thurston County Superior Court affirmed the PO's order. Havsy appeals.
Havsy asserts that when his case was remanded to the Board following the Supreme Court's decision in Nguyen, 144 Wn.2d 516, the PO erred in not reconsidering the case under a clear and convincing evidence standard of proof.
In November 2001, the PO reaffirmed his original order. In his findings of fact, the PO concluded that relevant findings of fact from the original order had been proved by both a preponderance of the evidence and by clear and convincing evidence. The conclusions of law on remand stated in part: 3.2 The Board, through its delegation to the {PO}, recognizes that the Washington Supreme Court has held recently that the standard of proof in disciplinary proceedings against physicians before the Washington State Medical Quality Assurance Commission is now proof by clear and convincing evidence. {Nguyen, 144 Wn.2d 516.} The Department has announced its intention to file a petition for writ of certiorari before the United States Supreme Court seeking review of the Nguyen decision. Further, the Washington State Court of Appeals has held recently that Nguyen should not necessarily be extended to disciplinary proceedings against all professional licensees. {Eidson v. Dep't of Licensing, 108 Wn. App. 712, 718, 32 P.3d 1039 (2001)}. Given the legal uncertainty regarding the standard of proof in disciplinary proceedings against osteopathic physicians before the Board, the Board concludes that the standard of proof in its proceedings shall remain preponderance of the evidence, pursuant to WAC 246-11-520, pending further legislative or judicial guidance. However, recognizing that the standard of proof applicable to this Board's proceedings may subsequently be determined to be clear and convincing evidence, the Board has considered the evidence under both the clear and convincing standard and the preponderance of the evidence standard.
Nguyen controls the standard of proof in this case. As in Nguyen, Havsy's hearing was before a medical disciplinary board, and sanctions included the possible suspension of his medical license. It is irrelevant that Havsy's original hearing was conducted prior to Nguyen because a new rule announced by the court applies retroactively, barring any procedural or res judicata issues. Robinson v. City of Seattle, 119 Wn.2d 34, 77-78, 830 P.2d 318, cert. denied, 506 U.S. 1028 (1992). Thus, on remand the PO was obligated to evaluate the evidence before him using the clear and convincing standard of proof. Accordingly, we review this appeal using the clear and convincing standard of proof.
The Uniform Discipline Act (UDA), chapter 18.130 RCW governs the discipline of osteopathic physicians. RCW 18.57.011. The UDA serves two purposes: (1) to protect the public, and (2) to protect the standing of the medical profession in the eyes of the public. In re Kindschi, 52 Wn.2d 8, 11, 319 P.2d 824 (1958). The UDA confers upon the Board the authority to discipline osteopathic physicians.
This court reviews the Board's orders under the Administrative Procedures Act (APA). RCW 34.05.570(3); Clausing v. State Bd. of Osteopathic Med. & Surgery, 90 Wn. App. 863, 870, 955 P.2d 394, rev. denied, 136 Wn.2d 1020 (1998). It reviews the findings of the Board, and not the findings of the superior court. In re Farina, 94 Wn. App. 441, 450, 972 P.2d 531 (1999) (citing Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 323-24, 646 P.2d 113 (1982)). The reviewing court must grant relief if the Board's order `violates the constitution, exceeds statutory authority, is the result of faulty procedure, involves an error in interpreting or applying the law, is not supported by substantial evidence, omits issues requiring resolution, involves improper rulings on disqualification issues, is inconsistent with an agency rule, or is arbitrary or capricious.'
Clausing, 90 Wn. App. at 870. The reviewing court is to give due deference to the Board's expertise and knowledge. Clausing, 90 Wn. App. at 870-71. It `limits its function to assuring that the {Board} has exercised its discretion in accordance with law, and shall not itself undertake to exercise the discretion that the Legislature has placed in the agency.' Clausing, 90 Wn. App. at 870-71 (quoting RCW 34.05.574(1)).
The clear and convincing evidence standard is applicable to proceedings affecting a medical license. Nyugen, 144 Wn.2d 516. Where the evidentiary standard is clear, cogent, and convincing, the appellate court must determine whether the substantial evidence in support of the findings of fact is `highly probable.' Dewberry v. George, 115 Wn. App. 351, 362, 62 P.3d 525 (2002) (citing In re Marriage of Schweitzer, 132 Wn.2d 318, 329, 937 P.2d 1062 (1997)). Evidence is substantial when there is `sufficient quantum to persuade a fair-minded person of the truth of the declared premises.' Clausen, 90 Wn. App. at 871.
An agency's conclusions of law are reviewed de novo under the error of law standard. Bond v. Dep't of Soc. & Health Servs., 111 Wn. App. 566, 571-72, 45 P.3d 1087 (2002). We determine whether the findings of fact support the conclusions of law. Under this standard, the court accords substantial weight to the agency's...
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