Opinion
No. 58302-6-I.
November 13, 2007.
The Washington State Medical Quality Assurance Commission (the Commission) concluded Dr. Mary Ballard engaged in unprofessional conduct in violation of the Uniform Disciplinary Act, chapter 18.130 RCW, by (1) failing to document the medical treatment she provided one of her employees, Patient One, and (2) improperly using her status as a doctor to threaten and intimidate Patient One's treating physician in Florida. The Commission suspended Dr. Ballard's medical license for four years but stayed the suspension on condition that she comply with certain requirements. Dr. Ballard contends clear, cogent, and convincing evidence does not support the Commission findings and conclusions. Dr. Ballard also argues the sanction was excessive, the refusal to admit an exhibit was error, and the administrative proceedings violated the appearance of fairness doctrine. Because clear and convincing evidence supports the Commission's decision, the sanctions are not manifestly unreasonable, the refusal to admit an untimely and irrelevant exhibit was not error, and Dr. Ballard waived any claim of appearance of fairness, we affirm.
To protect the confidentiality of her health care information, the parties did not use Patient One's name in the proceedings below.
FACTS
Dr. Mary Ballard is a physician and is board certified in internal medicine. From approximately October 2001 until October 2002, Dr. Ballard provided medical care to Patient One, an employee who worked in her office. In June 2002, Patient One told Dr. Ballard that she injured her back while moving boxes to Dr. Ballard's new office. On August 24, 2002, Patient One filed a claim with the Department of Labor and Industries (LI). Dr. Ballard signed the LI claim as Patient One's treating doctor. In the claim, Dr. Ballard states that the diagnosis is lumbar neuropathy and her back injury was "probably" caused by lifting boxes. Dr. Ballard also notes that as an objective finding, Patient One had a "swollen lower back." On August 27, Dr. Ballard ordered a lumbar MRI and referred Patient One to the Center for Diagnostic Imaging. On August 30 and September 20, Dr. Ballard authorized an epidural anesthetic and steroid injections for Patient One.
In October 2002, Patient One moved to Florida. Patient One expressly asked her doctor in Florida, Dr. Constantine Bouchlas, to not discuss treatment with Dr. Ballard without Patient One's authorization. In October 2002, Dr. Ballard stated on a prescription refill authorization that "I am no longer physician for this patient. Please take my name off her records."
In December 2002, Dr. Ballard filed a written protest of Patient One's LI claim. At first, LI denied the claim, but after an appeal, LI reinstated it.
The determination of Patient One's LI claim was not final at the July 8, 2005 hearing.
On October 15, 2003, Dr. Ballard called the Florida Spine Institute several times asking to discuss Patient One's disability claim with Dr. Bouchlas. But Dr. Bouchlas's medical assistant, Angela Sawyer, spoke to Dr. Ballard. According to Sawyer, Dr. Ballard threatened to sue Dr. Bouchlas for insurance fraud. On October 16, Dr. Ballard faxed a letter to Dr. Bouchlas and the Florida Spine Institute. The letter was addressed to the "Florida State Medical Board" and alleged that a doctor with the Florida Spine Institute was suspected of insurance fraud.
On November 4, 2004, Washington State Medical Quality Assurance Commission (the Commission) filed a statement of charges alleging that Dr. Ballard engaged in unprofessional conduct by failing to properly document her treatment of Patient One, inappropriately threatening Dr. Bouchlas, and interfering with Patient One's health care.
The Commission held a hearing on July 8, 2005. On August 6, the Commission entered detailed findings of fact, conclusions of law, and final order. In a carefully considered decision, the Commission concluded that Dr. Ballard violated the Uniform Disciplinary Act by engaging in unprofessional conduct. The Commission suspended Dr. Ballard's license for four years, but stayed the suspension upon compliance with a number of conditions. Dr. Ballard appealed to superior court. In a seven-page memorandum decision, the court affirmed the Commission's decision. Dr. Ballard appeals.
Dr. Ballard filed a motion to supplement the record under RAP 9.11 to include the recent June 27, 2006 Employment Security Department determination that Patient One improperly received both worker compensation and unemployment benefits during the same time period. The request to supplement the record does not meet the strict requirements of RAP 9.11. In addition, the Employment Security Department decision is not relevant to the question of the Commission erred in concluding Dr. Ballard improperly failed to document Patient One's treatment and used her position as a doctor to threaten Dr. Bouchlas and accuse him of insurance fraud.
ANALYSIS
Standard of Review
The intent of the Uniform Disciplinary Act, chapter 18.130 RCW, is to "assure the public of the adequacy of professional competence and conduct in the healing arts." RCW 18.130.010. The Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW, governs judicial review of disciplinary proceedings under the Uniform Disciplinary Act. RCW 18.130.100. As the party challenging the Commission's decision, Dr. Ballard bears the burden of establishing the decision is invalid under one or more of the criteria under the WAPA. RCW 34.05.570(1)(a). On review, this court "sits in the same position as the superior court, applying the standards of the WAPA directly to the record before the agency." Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).
Under RCW 35.05.570(3), the court will reverse only if it determines the administrative decision (1) is 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 procedures. RCW 34.05.570(3); Tapper, 122 Wn.2d at 402.
An action is arbitrary and capricious if it is made without consideration and in disregard of the facts and circumstances. Johnson v. Dep't of Health, 133 Wn. App. 403, 414, 136 P.3d 760 (2006). "Where there is room for two opinions, that standard is not met." Johnson, 133 Wn. App. at 414.
We review conclusions of law de novo. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 728, 818 P.2d 1062 (1991). But we accord substantial weight to an agency's interpretation of the law it administers when it is within the agency's expertise. Haley, 117 Wn.2d at 728. The Commission panel can also rely on its experience and specialized knowledge to evaluate the evidence when finding unprofessional conduct. RCW 34.05.452(5); In re the Discipline of Brown, 94 Wn. App. 7 12, 972 P.2d 101 (1998). We will not weigh the evidence or substitute our judgment regarding witness credibility for that of the Commission. Davis v. Dep't of Labor Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980). Because a medical disciplinary proceeding is quasi-criminal, findings of fact must be proved by clear, cogent, and convincing evidence. Nguyen v. Dep't of Health, Med. Quality Assurance Comm'n, 144 Wn.2d 516, 529, 29 P.3d 689 (2001).
Unchallenged findings are verities on appeal. Haley, 117 Wn.2d at 728. Although Dr. Ballard assigns error to the Commission's findings as not supported by the evidence, no error is assigned to any specific findings of fact as required by RAP 10.3(g). Where a party does not assign error to specific findings of fact, "?the findings become the established facts and our review must be limited to whether they support the conclusions of law and judgment.'" In re Discipline of Brown, 94 Wn. App. 7, 13 (quoting In re Perry, 31 Wn. App. 268, 269, 641 P.2d 178 (1982). Unprofessional Conduct
The Commission concluded by clear and convincing evidence that Dr. Ballard committed unprofessional conduction in violation of RCW 18.130. 180(4) by providing medical treatment to Patient One for approximately 11 months without properly keeping progress notes documenting "physical exam findings, a history, objective findings, assessment, treatment plan or provide any basis for her referrals, prescriptions or invasive procedures." The Commission concluded that "[t]hese failures clearly fall below the standard of care for physicians, and created an unreasonable risk that the patient may have been harmed."
RCW 18.130.180(4) provides in pertinent part that:
The following conduct, acts, or conditions constitute unprofessional conduct
. . . .
(4) Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed.
. . . .
Dr. Ballard admitted she did not keep progress or treatment notes but denied she was Patient One's doctor. In rejecting Dr. Ballard's testimony as not credible, the Commission relied on Dr. Ballard's medical records for Patient One to conclude that Dr. Ballard was Patient One's physician. According to the medical records, from approximately October 2001 until October 2002, Dr. Ballard provided medical care to Patient One. Dr. Ballard assessed Patient One's medical problems, referred her to other health care providers, ordered various diagnostic tests, ordered invasive procedures, and prescribed medications including carisoprodol, a muscle relaxant, and phentemine. The Commission concluded that by providing medical care for Patient One, as well as by signing the LI claim form for Patient One as her physician, Dr. Ballard created a physician-patient relationship. As further support, in October 2002 Dr. Ballard expressly stated that, "?I am no longer physician for this patient. Please take my name off her records'" and told LI that because she was "'Patient One's employer, Patient One should see another physician for long-term treatment.'"
In answer to the charges, Dr. Ballard admitted referring Patient One to other health care providers, ordering laboratory tests, and prescribing medication for Patient One.
Relying on the testimony of Dr. Kenneth Feucht, Dr. Ballard argued in the alternative that the medical records for Patient One did not fall below the standard of care. Citing conversations with unidentified colleagues, Dr. Feucht testified that physicians commonly write a prescription or refer people they know, including employees, for tests without creating a physician-patient relationship. But Dr. Feucht agreed that treatment extending over 10 to 11 months would create a physician-patient relationship. Because Dr. Feucht's testimony was based on incomplete and inaccurate information, the Commission expressly stated that it gave his testimony little weight.
The Commission's conclusion that Dr. Ballard's treatment of Patient One fell below the standard of care and created an unreasonable risk of harm to the patient in violation of RCW 18.130.180(4) is supported by clear and convincing evidence.
Clear and convincing evidence also supports the Commission's conclusion that Dr. Ballard abused her status as a physician by threatening Dr. Bouchlas and interfering with Patient One's health care in violation of RCW 18.130.180(1) and (13). RCW 18.130.180(1) and (13) provide in pertinent part that:
The following conduct, acts, or conditions constitute unprofessional conduct . . .
(1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person's profession, whether the act constitutes a crime or not.
. . . .
(13) Misrepresentation or fraud in any aspect of the conduct of the business or profession . . .
To constitute a violation of RCW 18.130.180(1), the "conduct must be related to the practice of the profession." "Related to" means "that the conduct must indicate unfitness to bear the responsibilities of, and to enjoy the privileges of, the profession." Haley, 117 Wn.2d at 731. A physician is also unfit to practice if he or she abuses the status of the profession or lowers the standard of the profession in the eyes of the public. Haley, 117 Wn.2d at 733.
After unsuccessfully challenging Patient One's LI claim, Dr. Ballard called the Florida Spine Institute several times on October 15, 2003 to talk to Dr. Bouchlas about Patient One's disability claim. In the calls Dr. Ballard identified herself as a physician and Patient One's former employer. Because Patient One had requested that Dr. Bouchlas should not talk to Dr. Ballard without a signed waiver, he did not return the calls. But his medical assistant, Angela Sawyer, spoke to Dr. Ballard. Sawyer testified that she explained to Dr. Ballard that Dr. Bouchlas was not going to return her telephone calls and that if she needed any information about Patient One to contact the Washington Labor Department. Sawyer testified that in response, Dr. Ballard used an angry tone of voice and threatened to file a lawsuit against Dr. Bouchlas for insurance fraud.
Q: What did she say about lawsuits?
A: She said that there was going to be insurance fraud against Doctor Bouchlas on Patient 1, a case filed on Patient 1.
Q: Did she indicate who was going to file that suit?
A: She was, Doctor Ballard was.
The next day, Dr. Ballard sent a fax to Dr. Bouchlas with a letter that appeared to be a complaint to the Florida Medical Board, alleging that a physician at the Florida Spine Institute was engaged in insurance fraud. The facsimile cover sheet from Dr. Ballard's office identifies "Constantine Bouchlas, MD" of the Florida Spine Institute as the recipient of the fax. The letter was dated October 15, 2003 and was on Dr. Ballard's office stationary and was signed by her. The letter is addressed to the "Florida State Medical Board, Tallahasee [sic], FL" regarding "Insurance Fraud." In the letter, Dr. Ballard alleges that a physician at the Florida Spine Institute is suspected of insurance fraud and asks someone from the investigative unit to call her.
The October 15, 2003 letter addressed to the Florida State Medical Board, Tallahasee [sic], FL states:
Re: Insurance Fraud
Dear Sir/Madame,
This letter is regarding suspected Insurance Fraud by a physician in Florida regarding a Labor and Industry Claim. The physician is a member of the Florida Spine Institute in Clearwater, FL. Please have someone from your investigative unit either call me for the details, or if there are forms for me to complete, please mail them to the below listed address. Sincerely, Mary L. Ballard, MD
Sean McAleer of the Florida State Department of Health, Division of Medical Quality Assurance, testified that Dr. Ballard never sent the letter or a complaint about Dr. Bouchlas to the Florida Medical Board. According to McAleer, he receives all complaints filed against a physician licensed in Florida. The Commission rejected Dr. Ballard's testimony that she mailed or faxed the October 15, 2003 letter to the Florida State Medical Board as not credible. The Commission also gave little weight to Dr. Feucht's opinion that Dr. Ballard had a moral obligation to report insurance fraud. The Commission determined that Dr. Feucht had incomplete information and was not an ethics expert.
Based on the lack of any evidence that Dr. Bouchlas engaged in insurance fraud, the Commission concluded Dr. Ballard made "inappropriate threats against the Florida Spine Institute and Dr. Bouchlas with the threat that she would be filing a law suit against Dr. Bouchlas and by faxing a copy of the letter of complaint" in violation of RCW 18.130.180(1) and (13). The Commission also concluded that Dr. Ballard's conduct raised concerns that "she has and may continue to abuse the status of the profession to harm or create an unreasonable risk of harm to patients by interfering or attempting to interfere with their care" and that "her conduct lowered the standing of the medical profession in the eyes of the public." Regardless of whether Dr. Ballard legitimately believed Patient One had improperly obtained disability benefits, because the record does not support Dr. Ballard's claim that Dr. Bouchlas committed insurance fraud, we conclude clear and convincing evidence supports the Commission's findings support the Commission's conclusion that Dr. Ballard's conduct violated RCW 18.130.180(1).
Exhibit 12
Dr. Ballard also challenges the decision to exclude exhibit 12. Dr. Ballard first identified and sought to admit exhibit 12 at the beginning of the trial. Exhibit 12 consists of a September 30, 2003 fax from the Florida Department of Health requesting information about Patient One from Dr. Ballard as her treating physician; a September 25, 2003 authorization from Patient One to Dr. Ballard to release information to other medical providers; an October 15, 2003 letter from a Florida Department of Health Adjudicator, A. Messer, with a summary of his telephone call with Dr. Ballard about Patient One's disability claim; and an October 23, 2003 letter from Dr. Ballard to Messer correcting the summary and stating her concern that Patient One fraudulently requested disability benefits. The Department objected to admission of Exhibit 12 as untimely and irrelevant. The Exhibit was excluded as untimely but Dr. Ballard was allowed to testify about her communications with the Florida Department of Health.
We conclude the decision to exclude Exhibit 12 was not an abuse of discretion. The identification of the Exhibit was untimely. And although Exhibit 12 identifies that Dr. Ballard questioned the validity of Patient One's disability claim, it is unrelated to Dr. Ballard's threat to sue Dr. Bouchlas for insurance fraud.
Sanctions
In the alternative, Dr. Ballard claims the sanctions imposed by the Commission were excessive and disproportionate. The Commission has broad statutory authority to impose sanctions that are necessary to protect the public and rehabilitate the physician. RCW 18.130.160. Sanctions may include one or any combination of the following . . . "including revocation of the license, payment of a fine, satisfactory completion of a specific program of remedial education or treatment." RCW 18.130.160. "An agency's determination of sanctions should be accorded considerable judicial deference as it is peculiarly a matter of administrative competence." In re Brown, 94 Wn. App. at 16. For the court to reverse a discretionary agency decision, it must find the agency's discretion was exercised on untenable grounds or for untenable reasons and is manifestly unreasonable. ITT Rayonier, Inc. v. Dalman, 67 Wn. App. 504, 837 P.2d 647 (1992).
The Commission suspended Dr. Ballard's license for four years but stayed the suspension upon compliance with several conditions. The Commission prohibited Dr. Ballard from treating employees and required Dr. Ballard to complete additional education related to appropriate conduct with employees, record keeping, and practice management; obtain anger management treatment; submit quarterly reports from the treatment provider; and comply with all laws and rules. We conclude the Commission's requirements are tailored to the dual purpose of protection of the public and rehabilitation under RCW 18.130.160 and the Commission did not abuse its authority in imposing the sanctions.
For the first time in her reply brief, Dr. Ballard also argues the sanctions were disproportionate to the sanctions imposed on other physicians for more egregious conduct. We do not address issues raised for the first time in a reply brief. RAP 10.3(c); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Nonetheless, this court rejected the same argument in In the Matter of the Disciplinary Proceeding of Brown, 94 Wn. App. 7, 17, 972 P.2d 101 (1998). In Brown, we held that in the context of medical licensing hearings, "[w]e must be guided by the Administrative Procedure Act — not lawyer discipline cases guided by the Code of Professional Conduct, Rules for Lawyer Discipline, and the Supreme Court which looks to a proportionality standard when imposing sanctions." Brown, 94 Wn. App. at 17. Appearance of Fairness
Next, Dr. Ballard argues the Commission hearing violated the appearance of fairness doctrine. The purpose of the appearance of fairness doctrine is to prevent biased or potentially interested quasi-judicial decision makers from deliberating in an administrative proceeding. Nationscapital Mortgage Corp. v. Dep't of Fin. Insts., 133 Wn. App. 723, 759, 137 P.3d 78 (2006). It is well-established that although it is related to due process considerations, the appearance of fairness doctrine is not constitutionally based. Bellevue v. King County Boundary Review Bd., 90 Wn.2d 856, 863, 586 P.2d 470 (1978). A party asserting an appearance of fairness violation must present evidence of actual or potential bias. The party must provide "sufficient evidence demonstrating bias, such as personal or pecuniary interest on the part of the decision maker; mere speculation is not enough." In re Pers. Restraint of Haynes, 100 Wn. App. 366, 377, n. 23, 996 P.2d 637 (2000); In the Matter of the Marriage of Wallace, 111 Wn. App. 697, 706, 45 P.3d 1131 (2002); Bunko v. Puyallap Civil Serv. Comm'n, 95 Wn. App. 495, 503, 975 P.2d 1055 (1999).
Therefore, we need not consider or address Dr. Ballard's constitutional arguments that are raised for the first time in her reply brief. Cowiche Canyon, 118 Wn.2d at 809.
A litigant that has information forming the basis of an appearance of fairness claim at the time of the administrative hearing must raise it. Failure to do so waives the right to assert an appearance of fairness claim in a later proceeding. Bellevue v. King County Boundary Review Bd., 90 Wn.2d at 863. "A party with such information may not sit back, hoping to achieve a desirable result from the board despite the perceived unfairness, and then use that information to challenge an adverse result." Bellevue, 90 Wn.2d at 863.
On October 4, 2002, the Commission filed charges against Dr. Ballard on an unrelated disciplinary matter. On July 10, 2003, the Commission and Dr. Ballard entered into stipulated findings of fact, conclusions of law, and agreed order. After completing the requirements of the stipulated order, Dr. Ballard filed a petition to terminate the agreed order. Dr. Chelle Moat and Karl Forch participated in the panel that decided Dr. Ballard's request for reinstatement. The Commission granted Dr. Ballard's reinstatement request.
The later November 2004 charges against Dr. Ballard included two paragraphs describing the unrelated earlier disciplinary proceeding against her. On Dr. Ballard's motion to strike, the health law judge granted the motion to strike, ruling that the probative value was outweighed by potential prejudice. But the health law judge ruled that the information could be disclosed to the panel members for purposes of determining an appropriate sanction. In reaching this conclusion, the health law judge referred to ER 404(b) and ER 403, but noted that there were significant differences between the previous and current charges.
Dr. Moat and Forch were members of the Commission that heard evidence on the November 2004 charges. There is no dispute that Dr. Ballard had notice that Dr. Moat and Forch participated in the previous proceeding on her motion for reinstatement, yet she raised no objection to them participating in the trial. Having failed to raise an appearance of fairness claim at trial, Dr. Ballard cannot do so now.
In addition, Dr. Ballard points to no actual bias or interest of the two panel members. And because Dr. Ballard relies on Narrowsview Preservation Ass'n v. Tacoma, 84 Wn.2d 416, 526 P.2d 897 (1974) is also inapposite. In Narrowsview, the Court held that even though the planning board member would not personally benefit from granting a rezone, his employer would. Narrowsview, 84 Wn.2d at 420. Here, there is nothing in the record to support Dr. Ballard's argument that Dr. Moat and Forch ever knew about or remembered the facts of the unrelated earlier proceeding.
CONCLUSION
We affirm the findings of fact, conclusions of law, and final order suspending Dr. Ballard's license to practice for four years but staying the suspension upon compliance with certain conditions.
WE CONCUR: