Johnston, Matter of
| Decision Date | 23 June 1981 |
| Docket Number | No. 4101-II,4101-II |
| Citation | 630 P.2d 1354,29 Wn.App. 613 |
| Parties | In the Matter of the Suspension or Revocation of the License to Practice Medicine of James JOHNSTON. WASHINGTON STATE MEDICAL DISCIPLINARY BOARD, Respondent, v. James C. JOHNSTON, M. D., Appellant. |
| Court | Washington Court of Appeals |
G. Cliff Armstrong, Jr., Bellevue, for appellant.
John H. Keith, Asst. Atty. Gen., Olympia, for respondent.
Dr. James Johnston appeals an order of the Superior Court for Thurston County denying his petition seeking to reverse the Washington State Medical Disciplinary Board's decision to revoke his license to practice medicine. We reverse.
From 1973 to 1976 Dr. Johnston conducted a "preventive medicine" practice in Bellevue. Johnston described his practice as specializing and focusing on helping people to prevent the crises, to reverse the causes of illness, which you can do intelligently with exercise and fresh air and nutrition and use as few drugs as possible, because the drugs are usually symptomatic rather than curative.
Part of his practice involved the use of "natural remedies" as a program of treatment. The charges that ultimately resulted in the revocation of Johnston's license to practice medicine stem from his treatment of two patients, Robert Hendrickson and Marcella Moore, and his employment of Remigio Peralta. What follows is a summary of the facts underlying Johnston's involvement with Hendrickson, Moore, and Peralta.
Robert Hendrickson: In early July 1976 Hendrickson, complaining of a large blister on his abdomen, telephoned Johnston, who had been his doctor since May of that year. On July 10 Johnston went to Hendrickson's home, where he found Hendrickson critically ill. Johnston later testified that at this point he insisted that Hendrickson be hospitalized and that certain diagnostic tests be performed, but that Hendrickson, who distrusted hospitals and the medical profession, adamantly refused. Only then, claims Johnston, did he prescribe "natural remedies." Hendrickson's widow, testifying on behalf of Johnston, stated that Johnston told Hendrickson that hospitalization was "the best deal" but that a program of natural remedies would succeed. The program Johnston prescribed included herbal tea enemas, a liquid diet, and periods of fasting.
By early August Hendrickson had lost a great deal of weight and remained critically ill. An abdominal wall abcess developed, which Johnston treated by suturing. 1 After several more office visits Johnston referred Hendrickson to Dr. Robert Mack. Mack discovered a large abdominal wall defect and admitted Hendrickson to Swedish Hospital on August 10. Mack's initial diagnosis was that Hendrickson's abdominal condition resulted from a cancerous growth. This diagnosis was subsequently confirmed by the examination of tissue removed during exploratory surgery.
In the hospital Hendrickson developed pneumonia and "acute renal failure." His condition continued to deteriorate, and on August 25 he died. Mack's final diagnosis listed three causes of death: (1) cancer of the colon; (2) respiratory failure caused by pneumonia; and (3) renal failure caused by shock.
Marcella Moore: Moore, like Hendrickson, had a strong aversion to the medical profession. She had been seeing Johnston "on and off" since 1974. In June 1976 Johnston and Moore decided to begin a treatment program based on the "Gerson diet." 2 In addition to the diet Johnston also prescribed six additional medications. Apparently, however, Moore, who was inclined toward self-medication, refused to take several of the additional medications.
On November 3, 1976 Johnston visited Moore at the home of Dave and Carolyn McCormack, where Moore was living. He found her seriously ill and diagnosed the problem as gallstones. Johnston recommended that she be hospitalized, but she refused, believing the Gerson program would be successful. Johnston spent the night caring for Moore, his treatment consisting mainly of coffee enemas and oral medication. Some time during the night, according to Johnston, Moore passed several gallstones. 3
The following morning Johnston left Moore in the care of Dave McCormack. According to Johnston, he told McCormack to give Moore two more enemas and call him if there was any change in her condition. McCormack testified that Johnston instructed him to have Moore eat and drink something, take her off the enemas, have her sleep 6-8 hours, and then continue the enemas if she felt up to it.
Later that day Moore felt better and insisted on continuing the coffee enemas. At 7:30 p. m. she had a seizure. McCormack called Johnston and was told that continuing the enemas would be the "worst thing" possible. Despite these instructions Moore insisted that the enemas continue. Approximately 10 more enemas, apparently of a much stronger concentration than Johnston had prescribed, were administered over the next 10 hours. Moore also suffered several more seizures, the final one coming at approximately 5:45 the next morning. At this point McCormack called Johnston again, who told him to call an ambulance.
Moore was admitted to Evergreen Memorial Hospital, where Dr. Paul Sandstrom became her attending physician. On admission she was comatose and in "severe electrolyte imbalance" due to the excessive administration of the coffee enemas. 4 Moore died 12 days after admission. The autopsy report stated the cause of death as "the administration of large volumes of fluid by enema."
Remigio Peralta: In 1975 Johnston employed Peralta, who worked in Johnston's laboratory, served as a massage therapist, and assisted in the delivery of babies. Although Johnston was aware that Peralta was not licensed to practice medicine in Washington, Peralta had completed 3 1/2 years of medical school at the University of Washington and had a degree in Naturopathy from Bernadean University in Las Vegas. He also had applied in Washington for a license in midwifery.
In October 1975 Mr. and Mrs. Kenneth Solheim, who were expecting a child and wanted a home delivery, were referred to Johnston's clinic. They met with Peralta, who they were told was a doctor. Peralta examined Mrs. Solheim and told the couple that he would deliver the baby. Approximately one week later Peralta delivered the baby, unassisted, performing such surgical procedures as cutting the umbilical cord. Despite never having met the Solheims, Johnston signed the birth certificate.
Johnston's activities were first brought to the Board's attention in September 1976 when Mack wrote a letter to the Disciplinary Board complaining about Johnston's treatment of Hendrickson. On September 25 the Board met and reviewed Mack's letter and an investigative report received from the Division of Professional Licensing. The Board then instructed John Keith, the Assistant Attorney General assigned to the Disciplinary Board, to schedule a formal hearing regarding charges of aiding and abetting an unlicensed person to practice medicine, unsafe practices, and gross incompetency.
During October and November the investigation continued. No hearing was scheduled nor formal statement of charges prepared, however, partly because Johnston was out of the state for approximately one month. In early December the Board received a complaint from Sandstrom regarding Johnston's treatment of Moore. This complaint was forwarded to Dr. Richard Diefendorf, a member of the Board, who instructed Keith to contact Dr. Carrold Iverson, Chairman of the Board, in order to draw up a "summary suspension" of Johnston's license. An order of summary suspension was signed by Iverson on December 7 and served on Johnston. At approximately the same time the Board filed a formal statement of charges, charging Johnston with "gross incompetency in the practice of medicine" because of his treatment of Hendrickson and Moore.
On January 15, 1977 the Board conducted a preliminary hearing regarding the summary suspension. At this hearing Johnston's attorney urged the Board to lift the suspension; the Board, however, concluded that insufficient evidence had been presented to justify such an action. On February 1, an additional charge was filed against Johnston, alleging that he had aided and abetted the unlicensed practice of medicine through his employment of Peralta.
A second hearing regarding the suspension was conducted on February 11 before a 3-member hearing committee. At this hearing Johnston's attorney challenged the Board members on the grounds they had prejudged the case against Johnston. Based partly on these concerns a stipulation was proposed whereby a hearing would be conducted on March 18 before a quorum of the Board with a hearing examiner present to preside over the hearing. From the hearing findings of fact would be presented to the full Board, which would issue conclusions of law. Also, the suspension would be lifted on the condition that Johnston practice only in association with a physician acceptable to the Board. This proposal was presented the same day to the entire Board; it agreed to a temporary stay of the suspension, but rejected the idea of having a hearing examiner present, deciding instead that the full Board would hear the case.
Because of a death in Johnston's family, the March 18 hearing was continued until April 15. The temporary stay, however, was revoked and the suspension reinstated. On April 15 the first evidentiary hearing was held before the full Board. At this hearing Johnston was represented by new attorneys who had been retained two weeks prior to the hearing. Johnston's attorneys moved for a 2-month continuance, based on their lack of adequate time to prepare. The Board reserved ruling until after Keith had presented the Board's witnesses. The Board heard testimony from Mack, Sandstrom, the Solheims, and Dr. Donald Reay, the county medical examiner. Each of these witnesses was cross-examined by...
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Davidson v. State
... ... See, e.g., Washington Medical Disciplinary Bd. v. Johnston, 29 Wash.App. 613, 630 P.2d 1354, review granted 96 Wash.2d 1011 (1981); Jaffe v. State Department of Health, 135 Conn. 339, 64 A.2d 330 (1949) ... Davidson's conduct was motivated in part by a desire for sexual stimulation. As a practical matter, if the genital massage was not appropriate treatment, no other reasonable inference could be drawn from the remaining facts and circumstances ... ...