Jonathan v. Wright, M.d., App. v. Wa State Dept. Of Health Medical Quality Assurance Comm., Res.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JONATHAN WRIGHT, M.D.,
as
No. 71516-0-1
Appellant, m
DIVISION ONE
i
WASHINGTON STATE DEPARTMENT UNPUBLISHED OPINION
OF HEALTH, MEDICAL QUALITY O
ASSURANCE COMMISSION, CO
Respondent. FILED: February 9, 2015
Spearman, C.J. — Dr. Jonathan Wright was disciplined by the Washington
Medical Quality Assurance Commission ("MQAC") for aiding and abetting Roby
Mitchell in the unlicensed practice of medicine at Wright's clinic and for refusing
to provide records during the investigation. The superior court affirmed the
sanctions and Wright appeals. He claims that he was charged unfairly, that the
hearing panel misinterpreted the law, and that he was subject to unconstitutional
searches and sanctions. We find no error and affirm.
FACTS
Dr. Jonathan Wright is the medical director of the Tahoma Clinic in King
County, Washington, where he supervises physicians and naturopaths. In
September of 2007, Roby Mitchell came to work at the clinic, claiming to be a
Texas licensed physician. Mitchell applied for licensure in Washington and
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treated patients on a regular basis from September 2007 to February 2009.
Mitchell resided in Washington during that time.
On April 16, 2009, a Medical Quality Assurance Commission (MQAC)
investigator received an inquiry about Mitchell's medical license. A records
search confirmed that Mitchell did not have a license to practice in Washington.
On April 22, 2009, the panel authorized an investigation.
On May 4, 2009, MQAC contacted Wright about the complaint, citing its
authority to open an investigation under RCW 18.130.050, and indicating the
investigation was only preliminary and that no charges had been filed. Wright
responded on May 14, 2009, asking for the investigation file and "the
Commission's determination of merit." Clerk's Papers (CP) at 660. In a letter
dated May 21, 2009, MQAC explained to Wright that it had initiated an
investigation pursuant to its "'delegation of authority to initiate investigations'"
under WAC 246-919-615 and that there was no determination of merit, because
the complaint did not involve issues of malpractice. CP at 662. Wright did not find
the explanation credible and concluded the investigation was not lawfully
authorized.
In March 2010, MQAC requested a detailed explanation of how Wright
supervised Mitchell and a sample of patient records that showed Wright's
supervising input. Wright declined to provide records, claiming that he needed
releases from the patients in question. He also requested that MQAC withdraw
its request for patient records, claiming that without a determination of merit, "the
request for records is not based on a legal investigation." CP at 184.
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In July 2010, Wright submitted three sets of patient records that were
almost completely redacted except for his signature. MQAC sent Wright another
request for records on August 30, 2010, explaining again that "[o]n April 22,
2009, at a regularly scheduled case management team meeting, a panel of four
Commissioners determined that this case merited investigation." CP at 202. This
request notified Wright that he had fourteen days to comply or he could be
subject to charges for failing to cooperate with a lawful investigation. On
September 27, 2010, MQAC submitted its final request for records and required
that Wright respond within three days, otherwise the case would be referred for
action based on failure to cooperate with an investigation.
On March 16, 2011, MQAC charged Wright with violating the Uniform
Disciplinary Act, chapter 18.130 RCW, by failing to cooperate with the
investigation. Wright ultimately provided five patients records in April 2012. A
review of these records resulted in an amended statement of charges filed
against Wright that added aiding and abetting the unlicensed practice of
medicine. At the hearing on March 19, 2013, an independent panel of MQAC
members (the Tribunal) concluded that each of the charges had been proven by
clear and convincing evidence. The Tribunal did not find Wright to be a credible
witness.
The Tribunal noted that the unprofessional conduct in this case "is not
described in a sanctioning schedule in WAC 246-16." CP at 19. Exercising its
authority to determine and impose sanctions under WAC 246-16-800(2)(d), the
Tribunal considered the severity of the conduct, the lack of remorse, and the risk
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of patient harm as aggravating factors. Wright was suspended for a period of 90
days and assessed a fine of $7500 and 30 months of probation following
suspension. As conditions of his probation, Wright was required to provide proof
of the office policy regarding employee verification and appear before MQAC on
an annual basis to report the results of any new employee verification efforts. He
was also required to submit a paper to MQAC describing the importance of
medical licensing and the elements of proper licensure.
Wright petitioned for judicial review and a stay of the Tribunal's final order.
The superior court denied his motion for a stay. After reviewing the full
administrative record and hearing oral argument from counsel, the superior court
affirmed the Tribunal's order in full. Wright appeals.
DISCUSSION
We apply the standards of the Washington Administrative Procedures Act,
chapter 34.05 RCW, directly to the agency record in reviewing agency
adjudicative proceedings. Brown v. State. Dep't. of Health. Dental Disciplinary
Bd., 94 Wash. App. 7, 11, 972 P.2d 101 (1998). We may reverse an administrative
order if it is (1) based on an error of law; (2) is unsupported by substantial
evidence; (3) is arbitrary or capricious; (4) violates the constitution; (5) is beyond
statutory authority; or (6) when the agency employs improper procedure. Id.
Appellate review is confined to the administrative record. Clausing v. State, 90
Wash. App. 863, 870, 955 P.2d 394 (1998). The party challenging the validity of the
agency's action bears the burden ofshowing that the action was invalid. RCW
34.05.570(1)(a).
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We review an agency's factual findings to determine whether they are
supported by substantial evidence sufficient to persuade a fair-minded person of
the declared premise. Towle v. State Dep't of Fish & Wildlife, 94 Wash. App. 196,
204, 971 P.2d 591 (1999). We overturn an agency's factual findings only if they
are clearly erroneous. Port of Seattle v. Pollution Control Hearings Bd., 151
Wash. 2d 568, 588, 90 P.3d 659 (2004). The undisputed facts of an agency's final
decision are verities on appeal. Yuchasz v. Dep't of Labor & Indus., Wn. App.
, 335 P.3d 998, 1001 (2014). Although we give weight to the agency's
interpretation of the statutes it administers, we review the agency's legal
conclusions de novo. Towle, 94 Wash. App. at 204.
Wright first assigns error to the Tribunal's finding that he was guilty of
aiding and abetting. Wright points out that MQAC learned during the course of its
investigation that Mitchell's Texas license to practice medicine had been
revoked. He contends the aiding and abetting charge is based on an allegation
that he facilitated Mitchell's practice of medicine in Washington when he knew
that Mitchell's Texas license had been revoked. He argues that MQAC failed to
prove that he knew of this fact. Wright misunderstands the allegation against him.
The aiding and abetting charge had nothing to do with the status of Mitchell's
Texas license. Rather, the claim was that Wright allowed Mitchell to practice
medicine in Washington without a license, as required by RCW 18.130.180(10).
Wright does not dispute that he allowed Mitchell to see patients at his clinic with
full knowledge that Mitchell was not licensed in Washington.
No. 71516-0-1/6
Wright argues that the Tribunal erred by applying a novel interpretation of
RCW 18.71.030(6) when it failed to find that Mitchell qualified for the out-of-state
exemption. Wright's argument hinges on a remark made by the presiding officer
in its order on Wright's motions for summary judgment. The presiding officer's
order states "[njeither side offers evidence, sufficient for summary judgment
purposes, that describes how [Wright] relied on [the statutory exemption or what
the common practice in the profession is concerning having out-of-state
physicians practicing in a respondent's clinic or office. Thus, this material fact
remains in dispute." Certified Appeal Board Record (CABR) Vol. 5 at 2097.
Based on the Order, Wright contends that the Tribunal imposed an arbitrary
standard based on a "common practice" and engaged in "retroactive application
of rulemaking through ad hoc adjudications" when it imposed this standard. Brief
of Appellant at 28. The contention is meritless.
The statutory exemption in RCW 18.71.030(6) applies in limited
circumstances. It permits "[t]he practice of medicine by any practitioner licensed
by another state or territory in which he or she resides, provided that such
practitioner shall not open an office or appoint a place of meeting patients or
receiving calls within this state." The Tribunal correctly found that Mitchell did not
qualify for the exemption because he was neither licensed in nor a resident of
another state. Even if Mitchell had been licensed in Texas and/or maintained a
residence there, he would not have qualified, because he met patients and
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received calls at Wright's clinic for approximately 18 months.1 Wright presents
no evidence that the Tribunal entertained any consideration of a "common
practice" when adjudicating the claims against him.2
Wright further claims that MQAC engaged in "ad hoc, retroactive
rulemaking by adjudication" when it interpreted the statute to prevent a physician
licensed in another state from working as an independent contractor in
Washington. Brief of App. at 25. According to Wright, MQAC also made a new
rule when it disqualified Mitchell for the statutory exemption based on the time
that he practiced at the clinic. Wright compares the requirements of RCW
18.71.030(6) which contain no time limitations, to the temporary permits under
WAC 246-12-050 that allow health care professionals to practice for a specific
number of days.
Wright's argument fails because neither employment status nor amount of
time practicing in Washington are elements of the statutory exemption.
Furthermore, there is no indication in the record that the Tribunal considered
either these factors when making its decision, or that it engaged in any
rulemaking by adjudication based upon them.
Wright claims that his due process rights were violated because according
to him, MQAC actually charged him of violating RCW 18.71.030(6), because
1 Wright also argues that the exemption allows physicians licensed in another state to
practice in Washington as independent contractors under the supervision of a Washington
licensed physician. Wright provides no basis for this argument. The statute does not provide any
exemption for physicians practicing as independent contractors.
2Wright also argues that because the hearing officer made reference to a "common
practice" in ruling on the MQAC's motion for summary judgment, MQAC was required to prove a
"'common practice,'" and failed to do so. Brief ofAppellant at 20. Wright cites no authority for this
argument and we decline to consider it.
7
No. 71516-0-1/8
Mitchell's Texas license was revoked. He claims he did not receive the
constitutionally required notice of this charge, and that it required a "different
means of committing the alleged violation" than the statement's charge of
generalized "aiding and abetting." Brief of Appellant at 22; CP at 82.
RCW 18.130.090 states that "[i]f the disciplining authority determines,
upon investigation, that there is reason to believe a violation of RCW 18.130.180
has occurred, a statement of charge or charges shall be prepared and served
upon the license holder or applicant at the earliest practical time. The statement
of charge or charges shall be accompanied by a notice that the license holder or
applicant may request a hearing to contest the charge or charges." Wright was
informed of the nature of the complaint and of all of the charges brought against
him.3 He was charged with and found to have engaged in unprofessional conduct
by "aiding or abetting an unlicensed person to practice when a license is
required," not by violating the out-of-state licensing exemption. CP at 82.
Wright claims that MQAC creates an unconstitutional condition on a
physician's license to practice by "imposing strict liability on physicians for non
compliance with MQAC's warrantless search and seizure procedure for medical
records." Brief of Appellant at 37. In other words, he is forced to either comply
with an investigation, or waive his rights, including the right to be free from
3The second amended statement of charges quotes RCW 18.130.180(10) verbatim. The
Final Order explicitly states that "[t]he Department proved by clear and convincing evidence that
the Respondent violated RCW 18.130.180(10), which defines unprofessional conduct as: Aiding
or abetting an unlicensed person to practice when a license is required." CP at 18-19. The final
order also states that "[t]he status of Mr. Mitchell's Texas'(sic) license is irrelevant. Even if Mr.
Mitchell had had a valid Texas medical credential, he was prohibited from practicing medicine in
Washington in the manner in which the Respondent allowed him to practice at his Clinic." CP at
17.
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search and seizure, the right to object to an unreasonable search and seizure,
his patient's privacy rights, or his right to his medical license.
The "unconstitutional conditions" doctrine limits the government's ability to
exact waivers of rights as a condition of benefits, even when those benefits are
fully discretionary. U.S. v. Scott. 450 F.3d 863, 866 (9th Cir. 2005). A plaintiff
alleging a violation of the unconstitutional conditions doctrine, however, must first
establish that a constitutional right is being infringed upon. Sanchez v. County of
San Diego, 464 F.3d 916, 930-1 (9th Cir. 2006). Administrative regulations are
presumed to be constitutional. Nguyen v. Dep't of Health Med. Quality Assurance
Comm'n, 144 Wash. 2d 516, 536, 29 P.3d 689 (2001). The party challenging a
statute or regulation's constitutionality bears the burden of proving its
unconstitutionality beyond a reasonable doubt. Madison v. State, 161 Wash. 2d 85,
92, 163 P.3d 757 (2007). A professional license is a property interest for which
revocation requires due process. Hardee v. State Dep't of Social & Health Servs.,
172 Wash. 2d 1, 8, 256 P.3d 339 (2011). Wright has not made any showing that he
was required to surrender any due process rights by complying with a lawful
investigation.
Wright argues that MQAC's procedures "wholly ignore[] the rights and
duties conferred by RCW 70.02.060," and other "statutory mandates in favor of
procedures that protect patient privacy." Brief of Appellant at 42. Wright has
made no showing as to how MQAC's procedures violate a patient's right to
privacy. RCW 70.02.050(2)(a) states that "[a] health care provider shall disclose
No. 71516-0-1/10
health care information,...about a patient without the patient's authorization if the
disclosure is:
(a) To federal, state, or local public health authorities,...; when
needed to determine compliance with state or federal
licensure,... or to investigate unprofessional conduct or
ability to practice with reasonable skill and safety under
chapter 18.130 RCW."
Under the statute, providers are required to furnish such health care information
to MQAC or other authorities for investigations related to licensing or
unprofessional conduct.
Wright argues that his sanctions are arbitrary and capricious.4 He claims
that the record shows that he cooperated fully once he understood that MQAC
was conducting a lawful investigation.5 He also claims that the sanctions were
imposed as retaliation for his inquiries into MQAC and his conduct in prior
investigations.
A reviewing court should defer to an agency's determination of sanctions,
because it is a matter of administrative competence. Brown, 94 Wash. App. at 16.
4Wright also argues that his sanctions are disproportionate compared to the sanctions
imposed on other physicians for similar offenses. He included a discussion of other physicians'
discipline cases in his briefand submitted the orders from those cases. The orders were not
made part of the record on appeal and we decline to consider them.
5 Wright places undue emphasis on his assumption that MQAC lied to him and led him to
believe that the investigation was unofficial by representing that there had been no determination
of merit. He argues that MQAC set him up for the failure to cooperate charges, because it
deliberately misled him into thinking that the investigation was informal, all the while knowing that
it had been officially authorized. Wright claims that he would have complied and did comply once
he understood that the investigation was official. Nothing in this record supports these
conclusions. The investigation's official status had been explained to Wright multiple times, in
letters dating as early as May, 2009. Wright persisted in denying the investigation's status and his
need to comply with the request for records, even after receiving warning notices and ultimately
facing charges in 2011. It was not until April of 2012 that the parties reached an agreement and
Wright produced five sets of patient records showing the level of care Mitchell had administered
and Wright's level of supervision.
10
No. 71516-0-1/11
After finding a license holder has engaged in unprofessional conduct, RCW
18.130.160 grants the disciplinary authority the right to impose sanctions after
considering the need to protect or compensate the public. RCW 18.130.160;
Lang v. State, Dep't of Health, Dental Quality Assurance Comm'n, 138 Wash. App.
235, 255, 156 P.3d 919 (2007). Arbitrary and capricious action is "'willful and
unreasoning action, without consideration and in disregard of facts and
circumstances.'" Brown, 94 Wash. App. at 16 (quoting Heinmiller v. Dep't of Health,
127 Wash. 2d 595, 609, 903 P.2d 433 (1995). The "harshness" of an agency's
discipline or sanction is not the test for arbitrary and capricious action. Heinmiller
at 609.
Wright claims that he cooperated "unequivocally for 15 months" and that
the Tribunal's declaration that he was non-cooperative "is not supported by the
evidence." Brief of Appellant at 43. Wright claims that MQAC's testimony and
discovery responses show that it was satisfied with his responses to particular
requests. This is insufficient to overcome the administrative finding of fact that he
"never complied with the Commission's request for the 30 medical records
despite multiple requests." CP at 14. There is also no evidence that any of
Wright's prior actions or MQAC's earlier investigations played any part in this
case.
Wright argues that the sanction compelling him to write a paper about the
benefits of "professional licensing" violates his freedom of speech under the First
Amendment. According to Wright, the issue of professional licensing is a
"socioeconomic" and "religious issue." Brief of Appellant at 46.
11
No. 71516-0-1/12
A license to practice is a representation to the public concerning the
particular qualifications of the holder, one which the public may rely on in
selecting a physician. See, Brandwein v. Cal. Bd. of Osteopathic Examiners, 708
F.2d 1466, 1469 (9th Cir. 1983) (no First Amendment violation where state
refused to allow osteopath to hold himself out as an M.D. when he did not have
such a degree). It is properly within the State's police power to regulate and
license professions, especially when public health concerns are affected.
Ellestad v. Swavze, 15 Wash. 2d 281, 289, 130 P.2d 349 (1942).
Wright argues that the punishment imposed by the Tribunal is an ordered
coercion concerning a viewpoint, and thus infringes upon his First Amendment
rights of free speech and freedom of religion. But the Tribunal imposed no
restrictions on his right to engage in free speech, or to practice any religious
philosophy. Wright's apparent objection to the topic ofthe essay required by the
Tribunal does not make the penalty unconstitutional. Writing a paper about the
importance of licensing does not violate his First Amendment rights nor does it
force him to give up a valuable constitutional right in order to have his license
reinstated.
Finally, Wright argues that the Tribunal erred by failing to apply the rule of
lenity. The rule of lenity applies in both criminal and quasi-criminal proceedings.
See In re Little, 40 Wash. 2d 421, 430, 244 P.2d 255 (1952). The rule requires that
where two possible constructions of a statute are permissible, the statute must
be strictly construed in favor of the accused. State v. Reis, 180 Wash. App. 438,
453, 322 P.3d 1238 (2014) review granted, Wn.2d , 336 P.3d 1165
12
No. 71516-0-1/13
(2014). Wright has not demonstrated any ambiguities in the licensing exemption
statute, or any other statute. RCW 18.71.030 is also an exempting statute; the
rule of lenity only applies to punitive statutes. State ex rel. Dawson v. Cascade
Dist. Ct. 62 Wash. App. 587, 592, 814 P.2d 1229 (1991).
Wright has not shown that the Tribunal acted arbitrarily and capriciously
when it imposed sanctions. We affirm the trial court's order and the actions of the
Tribunal.
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WE CONCUR:
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