Nguyen v. Department of Health

Sanders, J.

— The issue here is whether the Due Process Clause of the United States Constitution requires proof by clear and convincing evidence in a medical disciplinary proceeding. We hold due process requires no less, reverse and remand.

Dr. Bang Duy Nguyen¹ is a Seattle medical doctor who began his private medical practice in 1984. From that time until September 1997 he was licensed to practice medicine by the State of Washington. In 1989 his license was suspended because the Medical Disciplinary Board (Board)² found his practice had fallen below acceptable professional standards. However, the suspension was stayed on several conditions, one of which being that Dr. Nguyen participate in a preceptor program under the tutelage of Dr. Burdick.

In 1991 Dr. Burdick recommended Dr. Nguyen’s monitoring be reduced. The Board agreed Dr. Nguyen had made significant progress and accordingly reduced the level of preceptor review. Dr. Burdick continued to monitor Dr. Nguyen’s practice until January 1996, even though he thought the charges against Dr. Nguyen were trivial and marginal.

In November 1994 the Medical Quality Assurance Commission (Commission) proffered a Statement of Charges against Dr. Nguyen. The hearing on those charges was postponed when the Commission issued an agreed order for him to be assessed by the Colorado Personalized Education for Physicians program (CPEP). During this time his license remained in effect.

An Amended Statement of Charges was issued against Dr. Nguyen by the Washington State Department of Health (Department) in October 1996 based in part on the CPEP evaluation. The Department further alleged Dr. Nguyen failed to comply with the 1989 Stay of Suspension agreement and rendered unprofessional care in the treatment of 22 patients. In December 1996 the Commission issued a Summary Suspension of Dr. Nguyen’s license based on charges separate and apart from those which were currently pending. These new charges alleged Dr. Nguyen engaged in sexual misconduct with three of his patients.

On February 13,1997 a hearing was held to set the limits of the Summary Suspension. The suspension was stayed pending a hearing on the merits of the case. All charges against Dr. Nguyen were then consolidated. A six day hearing was held in which Dr. Nguyen was represented by counsel. At the hearing the Commission found by a mere preponderance Dr. Nguyen had inappropriate sexual contact with three of his patients and was therefore unfit to practice medicine. His license was indefinitely revoked and he was prohibited from seeking relicensure for five years.

Dr. Nguyen sought review of the Commission’s ruling in Superior Court, but the ruling was affirmed. Bang Nguyen v. Dep’t of Health, Med. Quality Assurance Comm’n, 99 Wn. App. 96, 100, 994 P.2d 216 (1999). He then sought review in the Court of Appeals for Division One, and again the Commission’s ruling was affirmed. Id. We accepted review to determine whether the Commission applied the correct standard of proof when it decided the case on a mere preponderance.

The Uniform Disciplinary Act (UDA), which establishes the licensure and disciplinary procedures for health care professionals, gives the Department the authority to adopt rules necessary for carrying out its disciplinary functions. RCW 18.130.050(1). To that end the Department has adopted WAC 246-10-606 which states in part: “Except as otherwise provided by statute, the burden in all cases is a preponderance of the evidence.”

Dr. Nguyen asserts he was denied his constitutional right to due process and equal protection when the Commission revoked his license to practice medicine based on a hearing which employed a mere preponderance of the evidence standard of proof. The UDA, RCW 18.130.100, states all hearings before the disciplinary authority are governed by the Administrative Procedure Act (APA). Under the APA, a reviewing court may grant relief from an administrative agency’s ruling if, among other things, the order is in violation of the constitution either on its face or as applied. RCW 34.05.570(3). Consequently, our review of Dr. Nguyen’s claim is appropriate and one upon which relief may be granted.

Analysis

A professional disciplinary proceeding subjects a medical doctor to grave concerns which include the potential loss of patients, diminished reputation, and professional dishonor. State precedent from other jurisdictions is divided.³ However, reason and applicable Supreme Court precedent dictate these grave concerns merit more than the minimal proof required to protect one from the risk of a mere, yet erroneous, money judgment.

We must not confuse the constitutional right to be applied with the interest to be protected. The Due Process Clause of the Fourteenth Amendment to the United States Constitution precludes states from depriving any person of “life, liberty, or property, without due process of law.” The “right” is due process, Dr. Nguyen’s interest is his property,⁴ his liberty,⁵ or both.

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. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). A medical license is a constitutionally protected property interest which must be afforded due process. Painter v. Abels, 998 P.2d 931, 940 (Wyo. 2000); Johnson v. Bd. of Governors, 913 P.2d 1339, 1345 (Okla. 1996); see also Wash. Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 474, 663 P.2d 457 (1983) (“A professional license revocation proceeding has been determined to be ‘quasi-criminal’ in nature and, accordingly, entitled to the protections of due process.”).

Our Constitution mandates that level of legal process due to reflect “respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring). “[I]n the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man’s sense of decency and fair play.” Burdeau v. McDowell, 256 U.S. 465, 477, 41 S. Ct. 574, 65 L. Ed. 1048 (1921) (Brandeis, J., dissenting).

Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, “due process” is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. ... It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.

Joint Anti-Fascist Refugee Comm., 341 U.S. at 162-63 (Frankfurter, J., concurring).

The minimum evidentiary standard due a medical doctor in a professional disciplinary proceeding is most importantly based upon the nature of the interest at stake — the interest which is subject to erroneous deprivation if a mistake is made. The more important the interest, the less tolerant we are as a civilized society that it be erroneously deprived.

A process satisfies minimum constitutional requisites inherently due when it provides adequate safeguards to the citizen confronted by an action instigated against him by the state. Primary among these safeguards is the standard of proof. “The function of a standard of proof... 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.’ ” Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (quoting In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Harlan, J., concurring)).

Addington holds it is the nature and importance of the interest subject to the potentially erroneous deprivation which defines the constitutionally minimum standard of proof. That standard allocates the risk of error between the litigants: it is indicative of the relative importance attached to the ultimate decision. Addington, 441 U.S. at 423. Thus, the more important the decision, the higher the burden of proof.

At the low end of the spectrum is the civil case involving a monetary dispute between private parties; “[s]ince society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.” Id. At the high end is the criminal case where the interests of the defendant are of such magnitude that the beyond-a-reasonable-doubt standard of proof is “designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Id.

Addington also recognized the constitutional necessity for an intermediate standard of proof employing some combination of the terms “clear,” “cogent,” “unequivocal,” and/or “convincing,” in circumstances where the interest is greater than a mere money judgment but less than a generic criminal proceeding. Id. at 424. It recognized “some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof,” id., and concluded a higher standard of proof than a mere preponderance is constitutionally required to reflect society’s concern with the consequence of a mistake the lower burden of proof necessarily makes more likely.

The intermediate clear preponderance standard is required in a variety of civil situations “to protect particularly important individual interests,” that is, those interests more important than the interest against erroneous imposition of a mere money judgment. Addington, 441 U.S. at 424. Examples of such proceedings include involuntary mental illness commitment, fraud, “some other quasi-criminal wrongdoing by the defendant” as well as the risk of having one’s “reputation tarnished erroneously.” Id. Medical disciplinary proceedings fit triply within this intermediate category because they (1) involve much more than a mere money judgment, (2) are quasi-criminal, and (3) also potentially tarnish one’s reputation.

Addington makes yet a further distinction: It observes while the interest of the individual may dictate a higher standard of proof to avoid erroneous deprivation, important interests of the state are likewise vindicated by the higher burden as they are potentially compromised by a lower burden of proof which inevitably increases the incidents of erroneous results. Addington, 441 U.S. at 425. Aside from vindicating interests of accuracy in professional disciplinary proceedings, as Dean Roscoe Pound observed, “There is a public policy in maintaining the interests of individuals as well as one in upholding the agencies of government.”⁶

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. The interest of the individual is the primary concern; however, important interests of the state likewise merit a higher burden. A traffic infraction results in a fine. If a mistake is made the consequence is only money (and not much of that) or an erroneous dismissal. In either case the result is of no great consequence. However, charges of aggravated first degree murder may result in the death penalty on the one hand or a killer on the loose on the other. We, as a civilized society, will risk a mistake in the former but tolerate no wrongful conviction in the latter. So too with Dr. Nguyen: His professional license, his reputation, his ability to earn a living for his family are very important interests — much more important than money alone.

By the same token society also has the important dual interests that (1) Dr. Nguyen’s standard of practice not fall below the acceptable minimum and (2) he not be erroneously deprived his license, as that would erroneously deprive the public access to and benefit from his services. Here each interest dictates a more exacting burden than mere preponderance.

The United States Supreme Court generally uses a three-part test to examine the minimum constitutional process due in a variety of procedural situations. In Mathews, 424 U.S. at 335, the Court considered whether a hearing prior to administrative termination of social security benefits was constitutionally required. The Court structured its consideration on three relevant factors: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used; and (3) the governmental interest in the added fiscal and administrative burden that additional process would entail. Id. Mathews did not consider the burden of proof; however, these factors have some uneven relevance and application to that issue as well. Cf. Santosky v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (burden of proof in parental rights termination proceeding is constitutionally greater “than that necessary to award money damages in an ordinary civil action” based on Mathews factors).

1. The First Mathews Factor: Private Interests

The individual’s interest in a professional license is profound. Dr. Nguyen’s professional license clearly represents a property interest to which due process protections apply. Moreover this court has recognized a doctor has a liberty interest in preserving his professional reputation that is entitled to protection under the Fourteenth Amendment. Ritter v. Bd. of Comm’rs of Adams County Pub. Hosp. Dist. No. 1, 96 Wn.2d 503, 510-11, 637 P.2d 940 (1981). When facing a medical disciplinary board, “The defendant suffers the possible los[s] of a constitutionally protected property right, the loss of a livelihood, and the loss of a professional reputation.” Johnson, 913 P.2d at 1346. “The loss of a professional license is more than a monetary loss; it is a loss of a person’s livelihood and loss of a reputation.” Id. at 1345.

Loss or suspension of the physician’s license destroys his or her ability to practice medicine, diminishes the doctor’s standing in both the medical and lay communities, and deprives the doctor of the benefit of a degree for which he or she has spent countless hours and probably tens (if not hundreds) of thousands of dollars pursuing. The severity of such a penalty has led the United States Supreme Court to note that in such situations jurisdictions “reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof.” Addington, 441 U.S. at 424.

In contrast to the relatively negligible interest at stake in a civil proceeding which can result only in a money judgment properly determined by a mere evidentiary preponderance, the intermediate “clear and convincing” standard is typically used in civil cases “involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant.” Id. (emphasis added). The standard is appropriate when the individual interests at stake are “ ‘more substantial than mere loss of money.’ ” Santosky, 455 U.S. at 756 (quoting Addington, 441 U.S. at 424). The United States Supreme Court has deemed a higher level of certainty “necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ ” Id. (emphasis added) (quoting Addington, 441 U.S. at 425-26).

The Supreme Court could not have described the interest at stake for the doctor in a medical disciplinary proceeding with more clarity than its example in Addington of a quasi-criminal proceeding. This court has expressly held medical disciplinary proceedings are indeed “quasi-criminal.” In re Revocation of License of Kindschi, 52 Wn.2d 8, 319 P.2d 824 (1958) described the unique nature of a medical disciplinary proceeding:

It is characterized as civil, not criminal, in nature; yet it is quasi criminal in that it is for the protection of the public, and is brought because of alleged misconduct of the doctor involved. Its consequence is unavoidably punitive, despite the fact that it is not designed entirely for that purpose. It is not strictly adversary in nature. It is essentially a special, somewhat unique, statutory proceeding, in which the medical profession . . . inquires into the conduct of a member of the profession and determines whether disciplinary action is to be taken against him in order to maintain sound professional standards of conduct for the purpose of protecting (a) the public, and (b) the standing of the medical profession in the eyes of the public.

Id. at 10-11 (first emphasis added). We recently reiterated medical discipline is quasi-criminal in Johnston, 99 Wn.2d 466.

Johnston and Kindschi are unquestionably the law of this jurisdiction.

These two cases use the term “quasi-criminal” in exactly the same sense the United States Supreme Court used the term when it characterized disbarment proceedings “quasi-criminal.” In re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968). If disbarment is quasi-criminal, so must be medical de-licensure. There is no distinction in principle. Other jurisdictions are in accord. Because of their quasi-criminal nature “the charges [against an attorney] must be sustained by convincing proof to a reasonable certainty, and any reasonable doubts should be resolved in favor of the accused.” Golden v. State Bar of Cal., 213 Cal. 237, 2 P.2d 325, 329 (1931). The same standard applies to professional discipline for judges. CJCRP 7. In re Disciplinary Proceeding Against Kaiser, 111 Wn.2d 275, 278, 759 P.2d 392 (1988). The Bar is required to prove attorney misconduct by no less than clear and convincing proof. In re Disciplinary Proceeding Against Allotta, 109 Wn.2d 787, 792, 748 P.2d 628 (1988). The Oregon Supreme Court summarizes the rule:

Application of this intermediate standard permeates a line of United States Supreme Court decisions declaring that “clear and convincing” evidence is required in various quasi-criminal proceedings or where the proceedings threaten the individual involved with a significant deprivation of liberty or with a stigma.

Riley Hill Gen. Contractor, Inc. v. Tandy Corp., 303 Or. 390, 737 P.2d 595, 602 (1987).

Because of their unique nature, constitutional due process requires quasi-criminal proceedings — instigated by the state and involving a stigma more substantial than mere loss of money — be proved by the clear preponderance of evidence. See Santosky, 455 U.S. at 755; Addington, 441 U.S. at 425-26. It would be incongruous and contrary to both Washington and federal precedent to allow a quasi-criminal prosecution to proceed under the lowest standard of proof available.

2. The Second Mathews Factor: Risk of Erroneous Deprivation

a. Risk of Erroneous Result.

We must next consider whether the risk of erroneous result requires a heightened burden of proof in medical disciplinary cases. One might argue the procedure Dr. Nguyen received did not create an unacceptable risk of erroneous deprivation because he received a hearing before an administrative agency, he had notice of the charges against him, he had the opportunity to be heard, the right to call witnesses, the right to be represented by counsel, and the right to judicial review. The problem with this approach, however, is that none of these procedural safeguards can substitute for, nor is even relevant to, failure to impose the requisite minimum burden of proof which is specifically designed “to impress the factfinder with the importance of the decision” and thereby reduce the chance of error. Addington, 441 U.S. at 427.

Moreover, with respect to the risk of erroneous deprivation in this proceeding, there is little solace to be found in the availability of judicial review which is high on deference but low on correction of errors. RCW 34.05-.570(3)(e) (A court shall grant relief from an agency order if it decides the order “is not supported by evidence that is substantial when viewed in light of the whole record before the court.”). Appellate review cannot cure an inadequate standard of proof. Santosky, 455 U.S. at 757 n.9. Appellate courts determine only whether factual findings are supported by substantial evidence and, if so, whether the findings in turn support the conclusions of law and judgment. Green Thumb, Inc. v. Tiegs, 45 Wn. App. 672, 676, 726 P.2d 1024 (1986).

Problems inherent in an interest-depriving procedure are thus only compounded when the possibilities for factual review are extremely limited. The risk of error is increased precisely because the opportunity for correcting error is minimal. Under the second Mathews factor, an increased risk of erroneous result is indicative of the fact that due process requires an increased standard of proof.

The Supreme Court of Wyoming recently visited this very issue, holding in Painter that the preponderance standard of proof in medical disciplinary hearings violates both due process and equal protection. Painter, 998 P.2d at 941-42. Analyzing the second prong of the Mathews test, Painter noted, “The risk of error is high in a proceeding seeking to revoke a medical license . . . [and] the risk increases where the agency acts as investigator, prosecutor, and decision maker.” Id. at 941 (citation omitted). That is essentially what happened here. The Commission investigated and monitored Dr. Nguyen’s practice for several years, ordered him to be assessed by the Colorado Personalized Education for Physicians program, and ultimately sat in judgment of him as well.

b. Subjective Standard of Conduct.

The risk of erroneous deprivation is further aggravated when one recalls the ultimate standard of conduct the Commission applies is almost entirely subjective in nature: incompetency, negligence, malpractice, moral turpitude, dishonesty, and corruption were the claims upon which the Commission based its discipline of Dr. Nguyen. Cf. Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 838 P.2d 111, 845 P.2d 1325 (1992) (ex parte probable cause hearing in a civil forfeiture proceeding sufficient to meet minimal due process because the seizure determination was based on “an objective” standard arising from “ ‘uncomplicated matters that lend themselves to documentary proof.’ ” Id. at 86 (quoting Connecticut v. Doehr, 501 U.S. 1, 14, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991)). It is difficult to imagine a more subjective and relative standard than that applied in a medical discipline proceeding where the minimum standard of care is often determined by opinion, and necessarily so.

Additionally, as the Court in Santosky noted, an elevated standard of proof militates against the possibility that the fact finder might deprive an individual of his license based solely on a few isolated incidents of unusual conduct. Addington, 441 U.S. at 427; Santosky, 455 U.S. at 764. Such concern is especially applicable to medical discipline where the charges stem from what could be an anomaly in an otherwise exemplary career.

In summary, the administrative procedure, in addition to the subjective standard of care, increases the risk of error and in itself justifies a heightened burden of proof under the second Mathews factor.

3. The Third Mathews Factor: Government Interests

The last factor called to our attention by Mathews is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. As one can quickly discern from a simple reading of the text, this requirement relates to practical and financial burdens to be imposed upon the government were it to adopt a possible substitute procedure for the one currently employed. As the Supreme Judicial Court of Massachusetts phrased it, the last factor examines “the government’s interest in the efficient and economic administration of its affairs.” Thompson v. Commonwealth, 386 Mass. 811, 438 N.E.2d 33, 37 (1982). This requirement does not relate to the interest which the government attempts to vindicate through the procedure itself.

Does requiring proof by a clear preponderance in a medical disciplinary proceeding somehow impose unacceptable fiscal and administrative burdens upon the government? Obviously not. An increased burden of proof would not have the slightest fiscal impact upon the state, as it would not appreciably change the nature of the hearing per se. In Mathews, for example, this factor was important in the context of the recipient’s claim that he should be afforded an opportunity for an evidentiary hearing prior to termination of social security disability benefit payments. Mathews concluded a prior evidentiary hearing was not required in that circumstance in part because of the incremental cost resulting from the increased number of hearings as well as the expense of providing benefits to ineligible recipients pending final decision. Mathews, 424 U.S. at 347. Increased cost is clearly not a fact or concern here.

Even if we were to consider the government “interest” in a reliable substantive outcome as part of our Mathews analysis, the matter would still be resolved in favor of Dr. Nguyen. The government’s interests are only furthered by medical disciplinary proceedings which reach an accurate and reliable result. Cf. Addington, 441 U.S. at 426 (“Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear to what extent, if any, the state’s interests are furthered by using a preponderance standard in such commitment proceedings.”); Santosky, 455 U.S. at 766-68 (a standard of proof more strict than preponderance of the evidence is consistent with promoting the state’s interest in a parental rights termination proceeding).

The state asserts the Commission serves the societal interest of protecting the public from physicians who abuse their patients or who are not competent to practice. Answer to Pet. for Review at 9. This it undoubtedly does. One of the purposes for creating the Commission was “[b]ecause the health and well-being of the people of this state are of paramount importance.” RCW 18.71.003(2). Prior to the creation of the Commission,⁷ this court noted a medical disciplinary authority performs the special function of “protecting (a) the public, and (b) the standing of the medical profession in the eyes of the public.” Kindschi, 52 Wn.2d at 11.

However it is difficult to see how either of these goals is furthered by the Commission’s employing a low standard of proof which results in a greater number of erroneous license revocations than would occur if it, at no additional cost or burden, applied a higher standard. It makes little sense to contend either the health of the public or its confidence in the medical profession is bolstered by the erroneous de-licensure of qualified physicians. The public is ultimately dependent upon the provision of a physician’s services, not their elimination.

In the final analysis, there are neither facts, reasons, nor arguments to support the proposition that the Commission cannot realize its purpose by using a higher standard of proof.

Conclusion

The interest of the medical practitioner in a professional disciplinary proceeding is obviously much greater than that which would be implicated by the mistaken rendition of a mere money judgment against him. It is much more than the loss of a specific job. It involves the professional’s substantial interest to practice within his profession, his reputation, his livelihood, and his financial and emotional future. That the public has an interest in the competent provision of health care services lends even greater importance to the assurance against erroneous deprivation which a higher standard would promote, as ultimately the public is dependent upon the provision of such services, not their elimination. An inadequate standard of proof increases the risk of erroneous deprivation and, therefore, requires recognition, as so many other courts have, that the constitutional minimum standard of proof in a professional disciplinary proceeding for a medical doctor must be something more than a mere preponderance.

Because our determination concerning Dr. Nguyen’s due process argument requires reversal, we need not determine his equal protection claim.

The decisions of the Court of Appeals, the Superior Court, and the Medical Quality Assurance Commission are vacated. The matter is remanded to the Commission to conduct such further proceedings as are necessary to determine this matter by clear and convincing proof. Costs on appeal are awarded to petitioner.

Alexander, C.J., and Smith, Johnson, and Madsen, JJ., concur.

1 Throughout the course of this litigation, the petitioner has been referred to both as Dr. Bang and as Dr. Nguyen. We are mindful that in the Vietnamese tradition the surname is given first, thus Dr. Bang is proper. However since his counsel refers to him as such and since the case is so captioned we will refer to the petitioner as Dr. Nguyen.

2 The Medical Disciplinary Board was the predecessor of the Medical Quality Assurance Commission.

3 Some jurisdictions have asserted the mere preponderance standard is sufficient to satisfy due process: Sherman v. Comm’n on Licensure to Practice the Healing Art, 407 A.2d 595 (D.C. App. 1979) (preponderance standard applies in medical and attorney disciplinary proceedings); Rucker v. Mich. Bd. of Med., 138 Mich. App. 209, 360 N.W.2d 154 (1984) (preponderance standard in medical discipline); Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998) (preponderance standard applies); In re Discipline of Wang, 441 N.W.2d 488 (Minn. 1989) (preponderance standard); Eaves v. Bd. of Med. Exam’rs, 467 N.W.2d 234 (Iowa 1991) (preponderance standard); In re Grimm, 138 N.H. 42, 635 A.2d 456 (1993) (preponderance); Johnson v. Ark. Bd. of Exam’rs, 305 Ark. 451, 808 S.W.2d 766 (1991) (preponderance, same as in attorney discipline); Gandhi v. State Med. Examining Bd., 168 Wis. 2d 299, 483 N.W.2d 295 (1992) (preponderance for physician but clear and convincing for attorneys); In re Polk, 90 N.J. 550, 449 A.2d 7 (1982) (preponderance standard in medical disciplinary proceedings); Gallant v. Bd. of Med. Exam’rs 159 Or. App. 175, 974 P.2d 814, 816 (1999) (due process was satisfied by the mere preponderance standard). But see Bernard v. Bd. of Dental Exam’rs, 2 Or. App. 22, 465 P.2d 917 (1970) (due process requires the clear and convincing standard in professional license revocations involving fraud or misrepresentation) and Van Gordon v. Or. State Bd. of Dental Exam’rs, 52 Or. App. 749, 629 P.2d 848 (1981) (a license revocation based on fraud requires proof by clear, satisfactory, and convincing evidence).

Notwithstanding, the more recent decisions trend toward requiring the higher standard of proof: Painter v. Abels, 998 P.2d 931 (Wyo. 2000) (both due process and equal protection require clear and convincing standard in medical disciplinary proceedings); Johnson v. Bd. of Governors, 913 P.2d 1339 (Okla. 1996) (due process requires clear and convincing standard in medical disciplinary proceeding as license revocation is quasi-criminal in nature); Robinson v. State ex rel. Okla. State Bd. of Med. Licensure & Supervision, 916 P.2d 1390 (Okla. 1996) (clear and convincing standard required for professionally licensed persons); Silva v. Superior Court, 14 Cal. App. 4th 562, 17 Cal. Rptr. 2d 577 (1993) (clear and convincing standard required); Ettinger v. Bd. of Med. Quality Assurance, 135 Cal. App. 3d 853, 185 Cal. Rptr. 601 (1982) (clear and convincing to a reasonable certainty required in medical licensure proceedings); Rife v. Dep’t of Prof'l Regulation, 638 So. 2d 542 (Fla. App. 1994) (clear and convincing); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) (clear and convincing in license revocations); Bernard v. Bd. of Dental Exam’rs, 2 Or. App. 22, 465 P.2d 917 (1970) (license revocation requires clear and convincing); Sobel v. Bd. of Pharmacy, 130 Or. App. 374, 882 P.2d 606 (1994) (clear and convincing standard has been required in license revocations, but preponderance applies in license application); In re Zar, 434 N.W.2d 598 (S.D. 1989) (all professional license revocation proceedings require clear and convincing standard); Miss. State Bd. of Nursing v. Wilson, 624 So. 2d 485 (Miss. 1993) (where fraud or quasi-criminal activity is alleged the clear and convincing is required); Davis v. Wright, 243 Neb. 931, 503 N.W.2d 814 (1993) (medical discipline like attorney discipline requires clear and convincing standard); Devous v. Wyo. State Bd. of Med. Exam’rs, 845 P.2d 408 (Wyo. 1993) (clear and convincing in medical disciplinary hearings).

See also Supreme Court cases applying higher standard where important individual interests are at issue: Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (due process requires clear and convincing standard in civil commitment as it is quasi-criminal in nature); Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 87 S. Ct. 483, 17 L. Ed. 2d 362 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 81 S. Ct. 147, 5 L. Ed. 2d 120 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796 (1943) (denaturalization); Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (termination of parental rights).

4 Dr. Nguyen’s professional license represents a property interest to which due process protections apply. Johnson v. Bd. of Governors, 913 P.2d 1339 (Okla. 1996) (holding a professional license is a constitutionally protected interest in property); see also Wash. Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 474, 663 P.2d 457 (1983) (“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty or ‘property interests within the meaning of the due process clauses of the fifth and fourteenth amendments to the United States Constitution.”).

5 See Ritter v. Bd. of Comm’rs of Adams County Pub. Hosp. Dist. No. 1, 96 Wn.2d 503, 510-11, 637 P.2d 940 (1981); Johnston, 99 Wn.2d at 474 (applying due process analysis to medical disciplinary hearings because they “deprive individuals of ‘liberty or ‘property interests”); see also Painter, 998 P.2d at 940 (“[P]ersons have a basic liberty interest in pursuing vocations ....”).

6 Roscoe Pound, The Rule of Law and the Modem Social Welfare State, 7 Vand. L. Rev. 1, 12 (1953).

7 See supra note 2.