A
Abuse, Mistreatment and Neglect
RCW 18.130.180(7)
Where respondent mentally and physically abused a patient, such conduct is a violation of WAC 246-841-400(6)(g), in which a nursing assistant is required to promote client or resident rights free from abuse, mistreatment, and neglect.
Susan Meade, M2010-1596 (Nursing Assistant; October 24, 2011)
Adjudicative Proceedings
Dismissal for lack of Timeliness
Respondent's request for dismissal of the Statement of Charges, based on his claim that the Department failed to hold the adjudicative hearing in a timely manner, is an inappropriate remedy. The Department has alleged that the Respondent committed serious acts of unprofessional conduct and the purpose of the Uniform Disciplinary Act is to assure the public of professional competence for their protection. To conclude that the scheduling requirements of the APA are mandatory and jurisdictional would deprive the Commission of the ability to enforce the Uniform Disciplinary Act for the protection of the public.
Patrick l. Vanquathem, 94-03-091CD (Chiropractic; July 6, 1994)
Administrative Hearing
Physician-Patient Privilege
A witness has standing to assert the physician-patient privilege and psychologist-patient privilege and request a protective order regarding patient records. RCW 34.05.452(1) permits the presiding officer to exclude evidence on constitutional or statutory grounds or on the basis of evidentiary privilege. The presiding officer may exclude privileged information, including the physician-patient privilege, RCW 5.60.060(4), and psychologist-patient privilege, RCW 18.83.110. Further, the privilege belongs to the patient. Citing State v. Clevenger, 69 Wn.2d 136 (1966).
Donald Bliss, 94-01-038MD (Medical; July 26, 1994)
Acts Prior to 1975
When the Legislature repeals a statute and simultaneously enacts the same statutory provisions, the repeal is only nominal since rights and liabilities are not affected. The provisions related to moral conduct are substantially similar in the 1975 and 1963 acts. The 1975 legislation not only carried forward the 1963 Act's essential prohibition against the “repeated acts of immorality,” it also expanded the prohibition to include a single act of moral turpitude, corruption or dishonesty.
Herbert Wimberger, 91-12-0017MD (Medical; July 7, 1993)
C
Collateral Estoppel
Application to unprofessional conduct
RCW 18.130.180(5)
Where DSHS issued a Notice of Final Findings that found the Respondent abused vulnerable adults and restricted the Respondent from being employed in a position that involves the care of vulnerable adults, or in a position that allows unsupervised access to vulnerable adults, the order has the effect of collateral estoppel at DOH in a case where the standard of proof is preponderance of evidence.
Susan Meade, M20101596 (Nursing Assistant; 2011)
D
Due Process
Application to administrative hearings
Due process involves principles of fundamental fairness and justice. The application of due process in a particular case considers the competing interests at stake under the circumstances of each case. Among the competing interests at stake in a medical disciplinary action are the government's interest in protecting the public health and well-being, the physician's interest in retaining a license to practice medicine and their mutual interest in avoiding an erroneous determination of the charges. The Respondent's assertions of substantial prejudice because he must defend against the Board's actions are for the most part speculative and due process is not denied in that setting.
Herbert Wimberger, 91-12-0017MD (Medical; July 7, 1993)
E
Evidence
Corpus Delicti Rule
The corpus delicti rule requires, in order to obtain a criminal conviction, the State must present evidence that a crime has been committed independent of the defendant's own statements. The admissibility of evidence in administrative proceedings is governed by the Administrative Procedure Act. Under those standards and under the Washington rules of evidence, the respondent's statements are admissible.
Heidi Lynn Brown (I), 94 11-07-498 (Pharmacy, January 17, 1995)
Exclusionary Rule
A pharmacist asserted that the exclusionary rules of criminal evidence apply in Washington administrative proceedings. Disciplinary proceedings are civil in nature. Where the disciplinary proceedings involve fitness to hold a pharmacist license in the future based on past acts of unprofessional conduct, application of the rule would have little or no deterrent effect on the agency that conducted the illegal search. That deterrent purpose has been served by the exclusion of evidence and statements in the criminal action. Citing I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984).
Heidi Lynn Brown (I), 94-11-07-498 (Pharmacy: January 17, 1995)
Expert Witnesses
Immunity from Disciplinary Action
Although the Respondent is immune from subsequent legal proceedings arising from any testimony or statements made by him preliminary to or in the course of judicial proceedings, the immunity afforded expert witnesses does not protect an expert from disciplinary action for dishonest statements or misrepresentations concerning the status of the expert's professional license of credentials. The chilling effect of subjecting experts to threatened litigation and liability for their expert opinions does not exist if a physician is not rendering an expert opinion but is merely testifying as to facts personal to the expert.
Elliott Oppenheim, 91-03-0068 (Medical; October 9, 1992)
F
Final Orders
Petition for Reconsideration
Time for Filing
Within 10 days of service of a final order, any party may file a petition for reconsideration, stating the specific grounds upon which relief is requested. The statutory time period for filing a petition for reconsideration of a final order is a jurisdictional requirement that cannot be waived.
Gregory Jantz, 09-07-31-065 (Counseling; June 28, 1993)
Request for Clarification
While the Administrative Procedure Act does not specifically provide for a request for clarification of a final order, the decision-maker should have an opportunity to clarify unclear or ambiguous terms in order for the parties to implement the decision. A request should be made in a reasonable period of time after issuance of the final order. Where Respondent's request for an extension of time in which to file a request for clarification of the terms of the final order was made within 14 days after issuance of the final order, the extension should be granted. The Respondent's request for clarification must be limited to, and for the purposes of, clarifying an ambiguity in the terms of the order and not for purposes of modifying, amending or changing the decision. Respondent's request for clarification must specify the terms of the order which are unclear or ambiguous.
Gregory Jantz, 09-07-31-065 (Counseling; June 28, 1993)
J
Jurisdiction
Protective Orders
Respondent argued that the Uniform Health Care Information Act requires that a patient obtain a protective order from a court of law rather than a disciplining authority. RCW 70.02.060(1) and (2) require the patient to seek a protective order from a “court of competent jurisdiction forbidding compliance.” Given the Board's authority under the Uniform Disciplinary Act and the Administrative Procedure Act, it is a court of competent jurisdiction from which any protective order should be issued.
Donald Bliss, 94-01-038MD (Medical; July 26, 1994)
M
Moral Turpitude
RCW 18.130.180(1)
Where respondent may have made dishonest statements when testifying as a witness, such conduct may indicate an unfitness to practice medicine if it raises a reasonable apprehension that the physician may abuse the trust inherent in the professional status of the profession. RCW 18.130.180(1) does not require that the improper conduct occur within the practice of medicine, but only that it relate to the practice of medicine.
Elliot Oppenheim, 91-03-0068 (Medical; October 9, 1992)
P
Physician - Patient Privilege
Public Interest/Benefit
Although the public has an interest in full disclosure and the respondent has a right to have discovery opportunities in the preparation of his case, a witness, who asserts the physician-patient and psychologist-patient privileges, has not prevented the truth from being revealed and impeaching testimony from being disclosed. To allow the unnecessary disclosure of all of a complaining patient's medical records would deter any patient from coming forward and reporting unprofessional conduct.
Donald Bliss, 94-01-038MD (Medical; July 26, 1994)
Waiver
Waiver of the physician-patient privilege may occur due to the filing of a civil action, or where the patient's medical or mental condition is at issue. Waiver of the physician-patient privilege occurs ninety days after filing an action for personal injuries or wrongful death. Where the patient is a witness in a disciplinary action and had not filed an action for personal injuries or medical malpractice and has not chosen physicians to testify concerning a mental or physical condition, the witness has not waived the privilege. Where the alleged unprofessional conduct involves sexual contact during a shoulder examination, the physical condition is not an issue in the disciplinary proceeding, and the privilege still applies.
Donald Bliss, 94-01-038MD (Medical; July 26, 1994)
Witness did not waive her privilege when she complied with the Department's investigation and signed a release for medical records. Under RCW 70.02.050(2)(a), the Department had access to the information without the witness's authorization for purposes of determining compliance with licensure rules or laws. The patient/witness did not introduce through medical testimony her treatment or diagnosis. Similarly, she did not waive the privilege by testifying at a deposition.
Donald Bliss, 94-01-038MD (Medical; July 26, 1994)
S
Standard of Care
RCW 18.130.180(4)
Where Respondent mentally and physically abused a patient, such conduct is incompetence, negligence, or malpractice which results in injury to a patient or which creates and unreasonable risk that a patient may be harmed.
Susan Meade, NAR.NA.00154703 (Nursing Assistant; October 24, 2011)
T
Timeliness
RCW 34.05.413
The actual hearing does not need to take place within 90 days of receipt of a request for an adjudicative proceeding. The case needs to be commenced within 90 days, however. RCW 34.05.413(5) clearly provides that an adjudicative proceeding commences when the agency or presiding officer notifies a party that a prehearing conference, hearing, or other stage of an adjudicative proceeding will be conducted.
Patrick l. Vanquathem, 94-03-091CD (Chiropractic; July 6, 1994)
U
Unlicensed Practice of Medicine - Use of a Laser
Removing a tattoo with a laser requires a health care license. Because a laser, light, radiofrequency and plasma (LLRP) device penetrates and alters human tissue, the use of an LLRP device is the practice of medicine under RCW 18.71.011. WAC 246-919-605(2)
Jason Swanson, Tyler Arnold, M2009-736, M2009-737 (2013)
W
Witnesses
Testimony by Commission Members
Respondent asserted that the Department witness could not testify because the witness is a Reviewing Commission member. A Reviewing Commission member may testify and participate in settlement negotiations so long as (s)he does not also participate in the decision on the charges. Such testimony will not violate the separation of functions required by RCW Chapter 34.05, or lead to a hearing that is not fair, impartial, or neutral.
Gary R. Feldman, 95-08-07-33DD (Dental; November 27, 1995)