Ongom v. STATE, DEPT. OF HEALTH

• Decision Date: 03 January 2005
• Docket Number: No. 52688-0-I.,52688-0-I.
• Parties: Alice ONGOM, Appellant, v. STATE of Washington, DEPARTMENT OF HEALTH, OFFICE OF PROFESSIONAL STANDARDS, Respondent.
• Court: Washington Court of Appeals

104 P.3d 29

124 Wn. App. 935

124 Wash. App. 935

Alice ONGOM, Appellant, v. STATE of Washington, DEPARTMENT OF HEALTH, OFFICE OF PROFESSIONAL STANDARDS, Respondent.

No. 52688-0-I.

Court of Appeals of Washington, Division 1.

January 3, 2005.

Claudia Kilbreath, Short, Cressman & Burgess, Sea., WA, for Appellant.

Chris G. Swanson, Attorney General's Office, Olympia, WA, for Respondent.

ELLINGTON, A.C.J.

In this case, a registered nursing assistant's license was suspended for abuse of a patient. We must decide what standard of proof is required in such disciplinary proceedings. We hold the preponderance of the evidence standard adequately protects the nursing assistant's due process rights. Because a preponderance of the evidence supports the findings, we affirm.

BACKGROUND

In 2001, Alice Ongom was licensed as a registered nursing assistant and was working as a caregiver at the Woodmark Retirement Home in Federal Way. Caregivers are responsible for assisting residents with their basic needs, including feeding, dressing, and hygiene.

On February 22, Ongom and two other caregivers were cleaning the dining room after dinner. Emma Usler, a resident in the later stages of Alzheimer's who was known to be combative, was in the dining room. The following day, one of the other caregivers, Rebecca Bristlin, reported to her supervisor that Ongom had abused Usler by slapping her hands, kicking her leg, and throwing a coffee mug, which hit Usler's hands. Woodmark program director Jocelyn Umagat, L.P.N., interviewed Bristlin and other witnesses, and assessed Usler's injuries. Umagat reported the incident to police and to the Department of Health and Human Services. She then spoke to Ongom and terminated her employment. After a police investigation, Ongom was arrested and charged with fourth degree assault.¹

The nursing assistant program of the Department of Health (the Program) initiated disciplinary proceedings against Ongom for abuse of a patient in violation of RCW 18.130.180(24).² After investigating, the Program issued a statement of charges, alleging that Ongom engaged in unprofessional conduct by slapping, kicking, and throwing a cup at a resident in her care.

Bristlin, Umagat and Ongom testified at a hearing before a health law judge. Ongom, who represented herself at the hearing, maintained she had not abused Usler. She testified that Usler was often aggressive, and that on this occasion Usler threw a glass at Ongom, hitting her, and shouted racial insults. Ongom testified she grabbed a plate from Usler to prevent her from throwing it, and left the room. Ongom presented an affidavit from the third witness to the incident, caregiver Franciska Chmielewski, who confirmed that Usler was frequently aggressive, and stated she saw Usler throw a glass at Ongom, but did not see Ongom touch or throw anything at Usler.

Health law judge John F. Kuntz observed that the correct standard of proof — a preponderance of the evidence, or clear and convincing evidence — appeared to be an unsettled question. He therefore considered the evidence under both standards, and concluded the Program had "proven by a preponderance of the evidence, but not by clear and convincing evidence, that [Ongom's] conduct violated RCW 18.130.180(24) (regarding abuse of a client). The Presiding Officer concludes this violation was moderate in nature."³ Judge Kuntz ordered Ongom's license be suspended for 24 months.⁴

Ongom petitioned the superior court for judicial review. That court affirmed the use of the preponderance standard and upheld the decision to suspend Ongom's license. This appeal followed.

DISCUSSION

Due Process

Judicial review of a Department of Health administrative decision is governed by the Administrative Procedure Act.⁵ This court applies the standards of the Act directly to the record before the agency.⁶ In reviewing conclusions of law, we apply the "error of law" standard of RCW 34.05.570(3)(d), under which we give substantial weight to the agency's interpretation of the law, but are not bound by the agency's interpretation.⁷ A disciplinary proceeding like Ongom's requires the license holder to defend against charges of unprofessional conduct, and may result in license revocation. It must therefore comport with due process.⁸

In Mathews v. Eldridge,⁹ the United States Supreme Court delineated three factors to be balanced in determining the minimum process required by the federal constitution: the private interest affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing government interest supporting the use of the challenged procedure.¹⁰ In Addington v. Texas¹¹ and especially in Santosky v. Kramer,¹² the Court applied these factors to the question of the proper standard of proof.¹³

Ongom relies upon our Supreme Court's decision in Nguyen v. State, Department of Health,¹⁴ and argues that the standard of proof required by due process in all professional disciplinary proceedings is clear and convincing evidence. In Nguyen, the Medical Quality Assurance Commission found, by a preponderance of the evidence, that Dr. Bang Nguyen committed unprofessional conduct. The Commission revoked the doctor's license to practice medicine, and prohibited him from seeking relicensure for five years. Our Supreme Court reversed. The Nguyen court framed the issue before it as follows: "At its heart this case concerns the process due an accused physician by the state before it may deprive him his interest in property and liberty represented by his professional license."¹⁵ The court found that a physician's property and liberty interests in maintaining his or her license are compelling; that the risk of error was aggravated by the subjective nature of the charges and by the fact that the Commission acted as investigator, prosecutor, and decision maker; and that the government's interest in avoiding the additional burden associated with a more stringent evidentiary standard was minimal.¹⁶ Applying the factors set forth in Mathews and Addington to these circumstances, the court held that due process required proof by clear and convincing evidence.

"The function of the standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'"¹⁷ The Nguyen court did not address whether the standard of proof is the same when a different professional license (and therefore a different private interest) is involved. In Eidson v. State, Department of Licensing,¹⁸ we held that the standard depends upon an analysis of the interests involved, and concluded the preponderance standard provided adequate due process protection in proceedings to revoke the license of a real estate appraiser.¹⁹ Here, we must decide what standard applies to revocation of the license of a registered nursing assistant. We address the Mathews factors in turn.

Private Interest. As Nguyen pointed out, "It is important to focus on the nature of the interest at stake in the sense that the more important the interest, the more process is required."²⁰ The license of a registered nursing assistant is a significant property interest, because it allows an individual to earn a living within a chosen field. It is not, however, equivalent to a medical license for purposes of due process analysis.

A physician completes many years of rigorous education, training, and examination at enormous expense, and generally expects the practice of medicine to be a permanent career. Registered nursing assistants, by contrast, have no educational or training requirements at all,²¹ perform duties only as delegated and supervised by nurses,²² and are employed in a field plagued by chronic and frequent turnover.²³ The legislature provided for a "voluntary certification of those who wish to seek higher levels of qualification" which requires some training and competency evaluation,²⁴ but even so, the value of the license to the holder is markedly different for nursing assistants than for physicians.

Additionally, the purpose of the license must be considered. By statute, any person can obtain a nursing assistant license by simply submitting an application and paying a nominal fee.²⁵ In fact, an applicant need not even obtain the license before beginning work as a nursing assistant.²⁶ The purpose of the nursing assistant license, therefore, appears to be solely to satisfy the need for a registry of those allowed to work in the field. The purpose of the medical license, on the other hand, is to assure professional competence in a highly complex and potentially dangerous occupation, in which the practitioner is largely unsupervised, and poses a great risk to the public if incompetent.²⁷ To this end, the education and examination requirements are extensive.²⁸ Thus, the property interest in a nursing assistant's license, while not insignificant, is considerably more limited than the property interest in a license to practice medicine.

The Nguyen court also characterized the doctor's interest in his medical license as a liberty interest: "[T]his court has recognized a doctor has a liberty interest in preserving his professional reputation."²⁹ The distinctions we noted above in terms of the property interest apply in equal measure here. A nursing assistant who loses her license may suffer some slight damage to her reputation, but any such damage does not approach the significant stigma attached to loss of the right to practice medicine. The liberty interest here, if any, is nominal.

In Addington, the United States Supreme Court considered whether due process requires an elevated standard of proof in involuntary civil commitment proceedings, and held the proof must be greater than a preponderance but need not be beyond a reasonable doubt. In...