Johnston, Matter of
| Citation | 663 P.2d 457,99 Wn.2d 466 |
| Decision Date | 05 May 1983 |
| Docket Number | No. 48104-1,48104-1 |
| Parties | In the Matter of the Suspension or Revocation of the License to Practice Medicine of James JOHNSTON. WASHINGTON STATE MEDICAL DISCIPLINARY BOARD, Petitioner, v. James C. JOHNSTON, M.D., Respondent. |
| Court | United States State Supreme Court of Washington |
Ken Eikenberry, Atty. Gen., Richard A. Finnigan, Asst. Atty. Gen., Olympia, for petitioner.
Hamley, Hamley & Armstrong, G. Cliff Armstrong, Bellevue, for respondent.
This is a medical disciplinary proceeding wherein petitioner, Washington State Medical Disciplinary Board (board), sought to revoke the medical license of respondent, Dr. James C. Johnston. After an administrative hearing, the board ordered revocation of respondent's medical license. On review, the Thurston County Superior Court upheld the board's ruling. Division Two of the Court of Appeals reversed and remanded for a new administrative hearing on the basis of the appearance of fairness doctrine. State Med. Disciplinary Bd. v. Johnston, 29 Wash.App. 613, 630 P.2d 1354 (1981). For the reasons set forth below, we reverse the Court of Appeals and reinstate the board's revocation of respondent's license to practice medicine.
From 1973 to 1976, respondent conducted a "preventive medicine" practice in Bellevue. Part of his practice consisted of treating various ailments with "natural remedies". The board initiated these medical disciplinary proceedings against respondent for his alleged "gross incompetency" in the treatment of two patients, Robert Hendrickson and Marcella Moore, and for aiding and abetting Remigio Peralta in the unlicensed practice of medicine. The following is a summary of the facts underlying respondent's Robert Hendrickson: Respondent first saw Mr. Hendrickson in May of 1976 for a urinary problem. In early July of 1976 Hendrickson, complaining of a large blister on his abdomen, again contacted respondent. On July 10, 1976, respondent went to Hendrickson's home and found him to be critically ill. Respondent later testified that at this point, he repeatedly suggested hospitalization and diagnostic tests to Mr. Hendrickson, but that Hendrickson refused because of his distrust in hospitals and the medical profession. It was at this point, according to the respondent, that he pursued "natural remedies" as a last resort. The program of treatment prescribed by the respondent included herbal tea enemas, a liquid diet, and periods of fasting.
involvement with Hendrickson, Moore, and Peralta:
By August 2, 1976, Mr. Hendrickson had lost a great deal of weight and remained critically ill. Respondent testified that he again recommended hospitalization, but Hendrickson refused. An abdominal wall abscess developed, which respondent treated by suturing. Respondent testified this abscess was in fact a sterile ulcer. After three more office visits, respondent finally convinced Mr. Hendrickson to seek hospital care. He was admitted to Swedish Hospital in Seattle on August 10, 1976, and was placed in the care of Dr. Robert M. Mack. Dr. Mack's initial diagnosis was that Mr. Hendrickson's abdominal problems were the result of a cancerous growth. The diagnosis was confirmed by laboratory analysis of tissue specimens removed during exploratory surgery.
While in the hospital, Hendrickson developed pneumonia and acute renal failure and his condition continued to deteriorate until, on August 25, 1976, he died. Dr. Mack's final diagnosis noted three contributing causes of death: (1) cancer of the colon; (2) respiratory failure caused by pneumonia; and (3) renal failure resulting from shock.
Marcella Moore: Mrs. Moore, like Mr. Hendrickson, had a strong aversion to traditional medicine, and had a history of inclination toward self-medication. She had been a patient of the respondent since 1974. Respondent visited Respondent spent the night caring for Mrs. Moore, his treatments consisting mainly of oral medications and administrations of coffee enemas diluted to the strength of three tablespoons of coffee per quart of water. According to respondent, at about 3:30 a.m. on November 4, Moore passed several gallstones in her bowel movements.
Mrs. Moore on November 3, 1976, at the home of Dave and Carolyn McCormack, with whom Moore was then living. He found her to be seriously ill and preliminarily diagnosed the problem as gallstones lodged in her bile duct. Respondent recommended hospitalization, but Moore refused, preferring a program of "natural remedies"
The following morning, respondent left Mrs. Moore in the care of Dave McCormack. According to respondent, Mr. McCormack was instructed to give her no more than two coffee enemas that morning and to immediately call him if there were any complications. Mr. McCormack testified that respondent instructed him to have Mrs. Moore eat normally and sleep as much as possible.
Later that afternoon, Moore began to feel much better and insisted on continuing the coffee enemas. They were administered approximately 10 times in the next 10 hours at stronger concentrations than respondent had prescribed. At 7:30 p.m. on November 4, 1976, Mrs. Moore had a seizure. Mr. McCormack phoned respondent, who instructed that the enemas should be discontinued and that he should be instructed of any changes in her condition. Nevertheless, Moore insisted on continuing the coffee enemas and suffered several more seizures, the last coming at approximately 5:45 a.m. on November 5. At this point, McCormack again phoned respondent, who ordered the dispatch of an ambulance.
Mrs. Moore was admitted to Evergreen Memorial Hospital in Everett, where Dr. Paul Sandstrom became her attending physician. She was comatose upon admission and suffered from an extreme electrolyte imbalance. Mrs. Moore died 12 days later. The autopsy report stated the cause of death as "the administration of large volumes of Remigio Peralta: In 1975, respondent employed Remigio Peralta, who worked in Dr. Johnston's laboratory, served as a massage therapist, and assisted in the delivery of babies. Peralta had completed 3 1/2 years of medical school at the University of Washington and held a degree in Naturopathy from Bernadean University in Las Vegas, Nevada, but was not licensed to practice medicine in Washington. He also had pending an application for a Washington State midwifery license.
fluid by enema." Exhibit 6
In October of 1975, Mr. and Mrs. Kenneth Solheim, who were expecting a child and wanted a home delivery, were referred by a licensed midwife to Dr. Johnston's clinic. They met with Peralta, whom they assumed to be a licensed physician. Peralta examined Mrs. Solheim and told the couple he would deliver their child. Approximately 1 week later, Peralta delivered the child without undue complications, performing such surgical procedures as cutting the child's umbilical cord. Despite never having met the Solheims, respondent signed the child's birth certificate as the attending physician.
The board was created by the Medical Disciplinary Board Act, RCW 18.72. The declaration of purpose of the act is set forth in RCW 18.72.010, as follows:
This chapter is passed:
(1) In the exercise of the police power of the state to protect public health, to promote the welfare of the state, and to provide an adequate public agency to act as a disciplinary body for the members of the medical profession licensed to practice medicine and surgery in this state;
(2) Because the health and well-being of the people of this state are of paramount importance;
(3) Because the conduct of members of the medical profession licensed to practice medicine and surgery in this state plays a vital role in preserving the health and well-being of the people of the state; and
(4) Because the agency which now exists to handle disciplinary proceedings for members of the medical profession licensed to practice medicine and surgery in this state is ineffective and very infrequently employed, and At the time of the hearing now in issue, the board consisted of seven physicians. Each board member was elected by other licensed physicians in each of the then-existing congressional districts. RCW 18.72.040. The board is empowered to investigate complaints of unprofessional conduct; to conduct hearings on such complaints; and to reprimand, suspend, or revoke the licenses of physicians guilty of such conduct. RCW 18.72.150.
consequently there is no effective means of handling such disciplinary proceedings when they are necessary for the protection of the public health.
In September of 1976, the board received a letter from Dr. Robert Mack, complaining of respondent's treatment of Mr. Hendrickson. Dr. Mack was Hendrickson's attending physician at the time of his death. Action was commenced on the complaint on or about September 21, 1976. The board had a preliminary investigation conducted by five investigators from the Division of Professional Licensing. The board then instructed Mr. John Keith, the assistant attorney general assigned to it as legal counsel, to draw up a statement of charges against the respondent. At some point prior to the hearings, the chairman of the board, Dr. Richard Diefendorf, initiated a telephone conversation with Dr. Mack in which the two men briefly discussed the complaint.
On December 3, 1976, the board received a complaint from Dr. Sandstrom, Marcella Moore's attending physician at the time of her death, regarding the respondent's treatment of Moore. Dr. Diefendorf, who was ill at the time, contacted the board's cochairman, Dr. Iverson, who on December 7, 1976, issued an order of summary suspension of respondent's medical license. On December 11, 1976, the board ratified the action and set a hearing date of January 15, 1977, to hear the respondent's case.
At a hearing on February 11, 1977, counsel for the respondent questioned the three members of the board then present, and eventually challenged their abilities to ...
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