Nghiem v. State

• Decision Date: 18 February 1994
• Docket Number: No. 15612-1-II,15612-1-II
• Citation: 869 P.2d 1086,73 Wn.App. 405
• Court: Washington Court of Appeals
• Parties: Thieu Lenh NGHIEM, M.D., Appellant, v. STATE of Washington, the Director of Licensing, the Department of Health, the Department of Health Licensing and Certification, the Washington State Medical Disciplinary Board, Respondents.

Page 405

73 Wn.App. 405

869 P.2d 1086

Thieu Lenh NGHIEM, M.D., Appellant, v. STATE of Washington, the Director of Licensing, the Department of Health, the Department of Health Licensing and Certification, the Washington State Medical Disciplinary Board Respondents.

No. 15612-1-II.

Court of Appeals of Washington Division 2.

Feb. 18, 1994.

Ann Marie Neugebauer, Asst. Atty. Gen., Seattle, for respondents

Don Peter William Taylor, Fristoe Taylor & Schultz, Olympia, for appellant.

OPINION

MORGAN, Chief Judge.

Dr. Thieu Lenh Nghiem appeals from a superior court decision which affirmed the Medical Disciplinary Board's revocation of his license. We affirm.

On October 26, 1989, the Washington State Medical Disciplinary Board charged Dr. Nghiem with unprofessional conduct. The Board alleged that Dr. Nghiem had asked inappropriate sexual questions of four of his patients. It further alleged that he had had inappropriate sexual contact with three of the four. The Board identified the patients as SM, DA, IK, and DH.

On December 15 to 16, 1989, the Board held a hearing on these allegations. The State called SM, DA, IK, and Dr Leslie Rawlings, Ph.D, to testify at the hearing. DH failed to appear, and charges related to her were dismissed.

SM, a registered nurse, testified that in 1988 she was referred to Dr. Nghiem because of problems with her cholesterol. She visited him in January, and they discussed a treatment plan for high cholesterol. According to SM, the questioning then "got a little bit odd with, oh, sexual frequency, if I had climaxes with intercourse, that kind of thing." ¹ She visited him again in February, and nothing remarkable occurred. In May, she called to find out why she had not been billed for the January and February visits, and Dr. Nghiem had her make another appointment to see him. During that call, he told her "he enjoyed seeing young beautiful women." ² She found this comment "weird", but she took it as a joke and kept her appointment, which was for May 20. On that date, Dr. Nghiem told her that she "looked like a model", and that he was "attracted to Scandinavian women." ³ He recommended that she read a certain book ("Loving Through Tao"), asked her if she had "erotic dreams" and "double climaxes," and asked about her sexual relationship with her husband. ⁴ He gave her a "big hug" and "talked about lasting six hours." She believed he was talking about "controlling his sexual energy" for 6 hours. ⁵

Dr. Nghiem then conducted a physical examination. He had SM remove her shirt so he could take her blood pressure. While her shirt was removed, he conducted a "strange" breast exam that consisted of "actually pull[ing] on the whole breast and nipple area". However, he did not appear to be "checking for lumps, cancer, or anything of that nature." ⁶ He then asked to check her pubic hair pattern. After SM removed one leg from her pantyhose, he had her "kind of bend over, and ... checked from behind, and then I got on the table." ⁷ On the table, "he was checking the clitoris, and he commented that I was well endowed; that I had the largest lips he'd ever seen. And then he was, he did an [pelvic] exam. He was checking the muscles in the vaginal wall, G spot." ⁸ Afterwards, he watched SM get dressed and told her she "was a very desirable woman." ⁹

Having been with Dr. Nghiem for 3 hours by this time, SM tried to leave. However, Dr. Nghiem followed her to her car in the parking lot, "said that he was really attracted to me.... [and] wanted to know if I was attracted to him." When SM told him she was happily married, he "said that he had had, he told me of an encounter he'd had with a married woman, a sexual encounter.... [a]nd the husband had taken it as, he had taken it complimentary." ¹⁰ A few days later, Dr. Nghiem called SM at her home to ask her whether she had read the book he had recommended. She and he had no further contact of consequence.

DA, a co-worker of SM, testified that on May 20, 1988, she also visited Dr. Nghiem for high cholesterol problems. After taking some preliminary information, Dr. Nghiem began asking "sexual questions". ¹¹ Specifically, he asked DA if she felt that her "clitoris was large." ¹² Noting her Scandinavian name, he "said that he was attracted to Scandinavian women", and that "most oriental men were attracted to Caucasian women." ¹³ He also asked her "something to do with my sexual partners, how many I'd had at once, something along that line." ¹⁴

Dr. Nghiem then asked to examine her pubic hair pattern. ¹⁵ She agreed to allow him to see the hair pattern on her abdomen. When she undid her pants, he "kind of went down and poked at my abdomen and kind of reached in and pulled my underwear out and looked down a little farther." ¹⁶ Flustered, DA fastened her pants and soon left. As she walked out to her car, Dr. Nghiem followed her and showed her "transfer of energy by giving [her] a hug". ¹⁷ She and he had no further contact of consequence.

IK testified that she was referred to Dr. Nghiem for puffiness around her fingers and ankles. While she was in his office in the summer of 1988, he had her remove her sweater so he could take her blood pressure. While she sat in his office in only her bra, Dr. Nghiem asked:

How often I had sex, when was the last time I had sex, was I married, did I have a boyfriend, what kind of sex did I like, what positions did I like, have I ever had group sex, and how many guys could I handle at one time. ¹⁸

When she asked Dr. Nghiem why these questions were pertinent to her condition, he had no response. She asked if she could put her sweater back on, but Dr. Nghiem repeatedly said, "Not yet." After about 20 minutes, she clothed herself and left. She and he had no further contact of consequence.

Prior to the hearing in December 1989, Dr. Rawlings, a clinical psychologist, evaluated Dr. Nghiem at the Board's behest. Dr. Rawlings had read the complaints filed by SM, DA, IK, and DH, had interviewed Dr. Nghiem on a number of occasions, and had had Dr. Nghiem take a battery of psychological tests. Dr. Rawlings concluded in a pre-hearing report:

Dr. Nghiem is at significant risk for engaging in similar conduct with other patients. Given his denial of having engaged in any inappropriate behavior and the assaultive character of some of the behavior, including the digital penetration of one of the patients, there is considerable potential risk to other patients. It is recommended that Dr. Nghiem vacate his practice.

Board Record, at 380.

At the hearing before the Board, Dr. Rawlings testified consistently with his report. His report was also admitted.

Dr. Nghiem presented a number of witnesses who testified to his good character and reputation in the community. Testifying in his own defense, he denied the allegations made by all three women. He said, however, that he had spoken with SM in a clinical way about her relationship with her husband. He also said he had asked IK questions of a sexual nature, because he was concerned she might have a sexually transmitted disease. He said the only reason he had IK remove her arm from her sweater was so he could take her blood pressure. Dr. Nghiem also presented a psychologist, Dr. S. Harvard Kaufman, who had evaluated Dr. Nghiem at his behest. Dr. Kaufman testified that Dr. Nghiem had denied the allegations of sexual contact, but had admitted asking sexually-oriented questions. Dr. Kaufman testified, based upon the assumption that there had been no sexual contact, that Dr. Nghiem "did not exercise good judgment" and would need counselling and supervision if he remained in medical practice. Dr. Kaufman conceded that if the women's allegations were true and Dr. Nghiem's denials false, "he's not fit to practice." ¹⁹

On February 28, 1990, the Board promulgated written findings that included the following:

1.3 That during 1988, respondent had inappropriate sexual contact, including digital penetration of the vagina, and inappropriately posed questions of a sexual nature to ... S.M., while respondent was evaluating S.M. for high cholesterol.

1.4 During 1988, respondent inappropriately examined the genital area and inappropriately posed questions of a sexual nature to ... D.A. The examination and questioning took place in respondent's office while respondent was evaluating D.A. for high cholesterol.

1.5 That during 1988, respondent conducted an inappropriate examination of ... I.K., by having her sit partially clothed, with her sweater removed and without a patient gown, for a prolonged period of time in respondent's office, while respondent was present and asking her other questions.

Board Record, at 13-14. The Board concluded that Dr. Nghiem had engaged in unprofessional conduct within the meaning of RCW 18.130.180(1) and (24). Those sections provide in pertinent part:

The following conduct, acts or conditions constitute unprofessional conduct for any license holder or applicant under the jurisdiction of this chapter:

(1) The commission of any act involving moral turpitude....

....

(24) Abuse of a client or patient or sexual contact with a client or patient.

Based on RCW 18.130.160, the Board revoked Dr. Nghiem's license. It also ordered that the revocation last at least 10 years, after which Dr. Nghiem could petition for reinstatement if he supplied "proof of rehabilitation".

Dr. Nghiem appealed to the Superior Court, which affirmed the Board's order. It concluded that the Board's findings of fact were supported by substantial evidence, and that its conclusions were "not affected by error of law". Dr. Nghiem then appealed to this court.

I.

Dr. Nghiem first contends the Board's findings of fact are not supported by substantial evidence. We disagree.

We review the findings of the Board, and not the findings of the Superior Court. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 324, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Farm...