Hung Dang v. Johnson

Docket Number3:21-cv-05544-RJB
Decision Date21 June 2023
PartiesHUNG DANG, M.D., Plaintiff, v. MARK JOHNSON; WILLIAM M BRUEGGEMANN; RICK J GLEIN; ROMAN S. DIXON, JR.; DEBRA L DEFREYN; CHRISTINA PFLUGER; TIMOTHY H. SLAVIN, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)

ORDER ON STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSAL AND PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on the State Defendants' Motion for Summary Judgment (Dkt. 101), the pro se Plaintiff Hung Dang M.D.'s Motion for Partial Summary Judgment (Dkt. 103), and the State Defendants' motion to strike (Dkt. 105). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

Originally filed on July 29, 2021, this lawsuit arises out of an employment dispute between Plaintiff and doctors and administrators at a hospital in the Franciscan Health Services system (collectively “Franciscan”) and administrative proceedings before the Washington State Medical Quality Assurance Commission (Medical Commission or “Commission”). Dkt. 1. Plaintiff's claims against Franciscan have been dismissed with prejudice. Dkt. 42.

The Plaintiff brings claims against individuals connected to the Medical Commission proceedings, including for violations of his federal first, fourth, fifth and fourteenth amendment rights, pursuant to 42 U.S.C. § 1983, his right to enforce an employment contract, pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1985, and for violation of state law. Dkt. 1. Each of these Defendants move for summary judgment and dismissal of all claims against them. Dkt. 101. The Plaintiff moves for partial summary judgment on his first amendment and § 1981 claims. Dkt. 103. For the reasons provided, the Defendants' motion (Dkt. 101) should be granted, the Plaintiff's motion (Dkt. 103) should be denied, and the case dismissed with prejudice.

I. RELEVANT BACKGROUND, FACTS AND PROCEDURAL HISTORY
A. MEDICAL COMMISSION OVERVIEW

Washington's Medical Commission is charged, in part, with monitoring the continuing competency of physicians in the state pursuant to the state's Uniform Disciplinary Act (“UDA”). Nguyen v. State, Dep't of Health Med. Quality Assurance Comm'n, 144 Wn.2d 516 (2001). The UDA states that all hearings before the Commission are governed by Washington's Administrative Procedures Act (“APA”). RCW 18.130.100. The UDA regulates unprofessional conduct. RCW 18.130.180. Acts of unprofessional conduct under the UDA include acts of moral turpitude relating to the practice of the person's profession and violation of any state or federal statute or administrative rule regulating the profession in question. RCW 18.130.180(7).

In this case, on receiving a complaint regarding Dr. Dang, the Commission investigated the allegations (Dkt. 102-7) and after a contested administrative hearing in January and February of 2017 (Dkt. 73-5), on September 29, 2017, it concluded the Dr. Dang had engaged in unprofessional conduct and imposed sanctions on his license (Dkt. 73-5). An amended final order in Dr. Dang's case was issued on December 20, 2017. Dkt. 73-6. A more complete explanation of the Commission's process along with the roles played by the moving Defendants follows below.

B. MEDICAL COMMISSION PROCESS AND DEFENDANTS

Once the Commission receives a complaint of a potential violation, the complaint is referred to a committee of medical commissioners, called a case management team. Dkt. 102-2 at 14. The case management team determines if an investigation is warranted and if so, the case is sent to the Commission's investigators. Id.

As is relevant to this case, after an incident in 2014 when Dr. Dang refused to treat a patient who was transferred to St. Joseph Medical Center from a different Franciscan hospital, he was referred to the Medical Commission for potentially violating the Emergency Medical Treatment and Labor Act and state law. Dkt. 73-1. The complaint was reviewed and sent to the Commission's investigators. Dkt. 102-7 at 4.

Investigator Timothy Slavin. Defendant Timothy Slavin, a retired investigator for the Commission, investigated complaints (after they were screened by the case management team), and then submitted reports which were routed to a Reviewing Commission Member. Dkt. 102-7 at 4, 6, 9, and 11.

Investigator Slavin was the investigator for the Commission's case against Dr. Dang. Dkt. 107-7 at 13. The investigation began in July of 2014. Dkt. 102-10. On July 21, 2014, the Commission learned that there were other complaints that Dr. Dang had refused to consult on emergency department patients while on call. Dkt. 73-3. Investigator Slavin investigated the case, but had no role in deciding whether charges would be brought or whether sanctions, if any, would be imposed. Dkt. 102-7 at 13-14. Investigator Slavin's investigation was completed before the Statement of Charges was issued. Id. at 16. The Statement of Charges against Dr. Dang was issued on March 30, 2016 (Dkt. 102-9) and Mr. Slavin's involvement with Dr. Dang's case was complete more than five years before this case was filed.

Commission Staff Attorney Richard Glein. Defendant Richard Glein is an attorney and is now the Legal Director for the Commission. Dkt. 102-3 at 3-4. In 2014, he was a staff attorney for the Commission and was assigned to the Commission's case against Dr. Dang. Id. at 7-8. As the assigned staff attorney, he reviewed the investigation file, and drafted pleadings and made recommendations to the Reviewing Commission Member and the Commission's disposition panel. Id. at 8-9. Staff attorney Glein cannot act independently on cases before the Commission and is not, and was not, a decision maker on Commission panels, including the panel that decided Dr. Dang's case. Id. at 46. Staff attorney Glein's work drafting pleadings and advising the Reviewing Commission Member was completed before the January/February 2017 administrative hearing. Id. at 44-45. Dr. Dang has not petitioned to have the Commission's Amended Final Order against him terminated (because he thinks it would make his legal cases moot) (Dkt. 102-8 at 31) and so staff attorney Glein is still the staff attorney assigned to the case (Dkt. 102-3 at 33).

Reviewing Commission Member William Brueggemann, M.D. Defendant Dr. William Brueggeman is a board certified emergency medicine physician. Dkt. 102-2 at 4. He was a Commission commissioner from 2013-2018 and then a pro tem commissioner until 2022. Dkts. 75-2 and 102-2 at 16.

Dr. Brueggemann was the Reviewing Commission Member in the Commission's case against Dr. Dang. Dkt. 102-2 at 12-13. Reviewing Commission Members review investigation files, make presentations to disposition panels, and recommend dispositions of cases. Id. at 1314. Reviewing Commission Members do not have independent authority to initiate actions, do not vote on the disposition, and the panels do not always follow the Reviewing Commission Members' recommendations. Id. at 18. The Reviewing Commission Member's role in a case ends before the conclusion of the administrative hearing unless an imposed sanction includes a personal appearance before the Commission, at which the Reviewing Commission Member would also appear, provide context for the case and participate in dialogue about whether the respondent had corrected the problem. Id. at 26. Once the Statement of Charges is issued, the Reviewing Commission Member is excluded from the administrative hearing. Id. at 37-38.

In the Commission's case against Dr. Dang, Reviewing Medical Commissioner Dr. Brueggemann reviewed the investigative file, made an assessment of whether Dr. Dang acted or failed to act in a manner that presented a risk to the public, and made a recommendation to the Commission Disposition Panel. Id. at 20. Reviewing Medical Commissioner Dr. Brueggemann's has taken no action in Dr. Dang's case since before the January/February 2017 hearing. Id. at 37-38.

Washington State Assistant Attorneys General (“AAG”) Debra Defreyn and Christina Pfluger. Defendant Debra Defreyn is the AAG who participated in the administrative hearing in Dr. Dang's case. Dkt. 102-5 at 4-5. At the administrative hearing, AAG Defreyn prosecuted the allegations of UDA violations against Dr. Dang. Id. at 7. Her role at the administrative hearing was to present evidence and argument to the Commission disposition panel. Id. at 17-18. She did not vote on the disposition or decide the sanctions. Id. at 17-18.

After the administrative hearing, AAG Defreyn supervised Defendant AAG Christina Pfluger, the lawyer who handled the judicial review and appeals of Dr. Dang's case. Id. at 5. AAG Pfluger was not involved in the case until the petition for judicial review was filed on October 27, 2017. Dkt. 102-6.

Commission Disposition Panel Chair. Defendant Mark Johnson, M.D. is a retired physician who was a commissioner with the Commission from 2008-2017. Dkt. 102-1 at 3-4. He chaired the Commission Disposition Panel that decided the disciplinary case against Dr. Dang. Id. at 5. Panel Chair Dr. Johnson is sued in his official capacity although he retired from the Commission in 2017 and this case was filed in 2021. After the Amended Final Order was signed on December 20, 2017, Panel Chair Dr. Johnson did not discuss the case with the other two commissioners on the panel (who are not named here) or with the health law judge that presided over the case. Id. at 12.

Administrative Hearing Health Law Judge. Defendant Roman Dixon is a lawyer and a health law judge for the Washington State Department of Health. Dkt. 102-4 at 4. He presides over cases that come before the Department (including Commission cases) and was the health law judge...

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