Opinion
No. 24897-6-III.
May 17, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 04-2-01837-1, Carrie L. Runge, J., entered January 10, 2006.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Kulik, J.
The Washington State Department of Health, Medical Quality Assurance Commission (Commission), found Dr. Geoffrey Ames had committed unprofessional conduct by using an alternative medical device. The Commission determined his conduct fell below the standard of care and suspended his license for five years. But it stayed the suspension provided that Dr. Ames comply with several conditions that included not using the device, paying a fine, and submitting his records for periodic evaluations. Dr. Ames appealed to superior court, which upheld the Commission's ruling. We affirm.
Dr. Ames, a licensed physician, is board certified in holistic medicine. In 1995, he began practicing in Richland, Washington, specializing in chronic fatigue and allergies. One of the methods used by Dr. Ames was acupressure.
Another method used by Dr. Ames employed a device called the Life Information System Tens device (LISTEN). It is a galvanic skin response machine that measures changes in resistance. James Clark developed it and submitted information to the Food and Drug Administration (FDA). LISTEN was described as having electrodermal screening techniques, alternative medicine techniques, and bioenergetics techniques. The FDA did not clear the device for these uses. Mr. Clark also developed other galvanic skin response devices that were cleared, but not approved, by the FDA.
Dr. Ames learned about LISTEN from colleagues. He understood the device functioned like a biofeedback machine. In 1997, he purchased it and learned how to operate it from colleagues. His nurse attended a course on the use of the device for electrodermal screening (EDS), but he did not find her training useful for his purposes. He used LISTEN when treating his patients, but did not specifically bill them for it.
Dr. Ames saw Patient One on June 6, 2001, and July 10, 2001. The patient complained of fatigue, sluggishness, weak and tired joints and muscles, infrequent joint and muscle pain, and severe mood swings. During the first visit, Dr. Ames discussed metal toxicity, metal poisoning, and his alternative medicine practice. He ordered blood tests and a urine test.
On July 10, Dr. Ames reviewed the lab results with Patient One and told him he had a mineral imbalance, mineral deficiencies, and a low testosterone level. Dr. Ames thought Patient One might have some metal poisoning that contributed to his tiredness. He told him he should undergo treatment for metal poisoning and he might be allergic to eggs and mustard, allergies that could be weakening his body.
Dr. Ames then told Patient One about LISTEN and how it could be used to find out what was going on with his body. Dr. Ames said he would place a probe connected to LISTEN in the patient's hand. This would enable the doctor to make a diagnosis and possibly cure any allergies.
Prior to using LISTEN, Dr. Ames assessed Patient One's strength. While lying on his back, the patient raised his right arm and Dr. Ames asked him to resist while he tried to pull his arm down. This test revealed Patient One had a strong resistance. Dr. Ames then had the patient raise his arm as before. The doctor typed the word "eggs" into LISTEN and asked the patient to resist when he pulled on his arm. Dr. Ames was able to easily pull the patient's arm down, indicating he had been compromised due to his egg allergy. Next, the doctor had Patient One roll over onto his stomach and he thumped his back with an acupressure device. Dr. Ames again did the resistance test with LISTEN, but this time he was not able to pull the patient's arm down. Dr. Ames told him his allergy was gone.
Dr. Ames advised Patient One not to eat any eggs for the next 24-48 hours or the treatment would not take. The patient believed any egg allergy he had was cured. He had never before been diagnosed as having an egg allergy. Dr. Ames told Patient One he would have to return to cure his other allergies because only one allergy at a time could be cured.
Dr. Ames disputed Patient One's account of the second visit, claiming he simulated the process he would use to treat the allergy through muscle testing but did not actually use LISTEN. He was merely informing Patient One about what might happen if he elected treatment.
Several weeks after his last visit, Patient One contacted the Department of Health (Department) because he was concerned about Dr. Ames's views of mercury, lead poisoning, and chelation. He also indicated concern with the doctor's obsession with alternative modalities.
After an investigation, the Department filed on July 10, 2002, a Statement of Charges against Dr. Ames, alleging he treated Patient One with LISTEN in violation of federal food and drug acts and state law. On February 5, 2003, the Department amended its charges against Dr. Ames to claim he was not acting within the required standard of care, his actions constituted moral turpitude, and he promoted an inefficacious device for personal gain. The Commission determined Dr. Ames violated (a) RCW 18.130.180(4) by being negligent in creating a risk the patient could be harmed and (b) RCW 18.130.180(16) by promoting an inefficacious device for personal gain. The Commission, however, did not find Dr. Ames had violated the standard of care or committed an act of moral turpitude. Based upon its findings, the Commission suspended his license. But the suspension was stayed provided Dr. Ames not use LISTEN in his practice, permit the Commission to conduct quarterly record reviews of his patients, submit a declaration he was complying with the order each quarter, and pay a $5,000 fine. Dr. Ames appealed this decision to the Benton County Superior Court, which upheld the Commission's ruling. This appeal follows.
The Department charged Dr. Ames with violating several provisions of the Uniform Disciplinary Act, chapter 18.130 RCW. This Act establishes the licensure and disciplinary procedure for health care professions. Nguyen v. Dep't of Health, Med. Quality Assur. Comm'n, 144 Wn.2d 516, 520, 29 P.3d 689 (2001), cert. denied, 535 U.S. 904 (2002). RCW 18.130.100 provides that all disciplinary proceedings are governed by the Washington Adminstrative Procedure Act (WAPA), chapter 34.05 RCW.
"`In reviewing administrative action, this court sits in the same position as the superior court, applying the standards of the WAPA directly to the record before the agency.'" Heinmiller v. Dep't of Health, 127 Wn.2d 595, 601, 903 P.2d 433, 909 P.2d 1294 (1995) (quoting Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993)), cert. denied, 518 U.S. 1006 (1996). Because this is a medical quasi-criminal proceeding, findings of fact must be proved by a clear preponderance of the evidence. Nguyen, 144 Wn.2d at 529, 534. Unchallenged findings are verities on appeal. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 728, 818 P.2d 1062 (1991). Conclusions of law are reviewed under the "error of law" standard. Id. In applying this standard, courts accord substantial weight to the agency's interpretation of the law, even though we may substitute our judgment for that of the agency. Id.
Dr. Ames claims the Commission erred by using its own expertise instead of taking expert testimony. But an administrative tribunal comprised of medical practitioners is competent to determine the propriety of medical conduct without expert testimony. In re Discipline of Brown, 94 Wn. App. 7, 14, 972 P.2d 101 (1998), review denied, 138 Wn.2d 1010 (1999). Here, the Commission was comprised of two medical professionals and an attorney. It heard testimony from Dr. Ames as well as another doctor. The Commission was not required to take any additional expert testimony. Id.; see also RCW 34.05.461(5).
The Department alleged Dr. Ames violated RCW 18.130.180(4). RCW 18.130.180 defines what acts constitute unprofessional conduct for a health care provider. Specifically, RCW 18.130.180(4) states "[i]ncompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed" constitutes unprofessional conduct. The section further states "[t]he use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed." Id. The Commission concluded the Department proved by clear, cogent, and convincing evidence that Dr. Ames had violated this section by using LISTEN with Patient One. The doctor assigns error to this conclusion of law, as well as several of the Commission's findings.
Dr. Ames assigns error to the first sentence of finding 1.7, which stated he did not know the physics behind the device or the voltage or amperage it used. In response to questions regarding the electricity sent to the body by LISTEN, Dr. Ames testified, "I believe the LISTEN device sends a current of five ohms, but I'm not the inventor of the machine, so I can't really give you a reliable answer on that." Board Record (BR) at 2097-98. He later testified, "I don't know the physics behind it." BR at 2156. This finding is supported by clear and convincing evidence.
He also assigns error to the last two sentences of finding 1.12, which indicate he used the device in assessing patients. Dr. Ames testified he used the device to help him assess the allergies of his patients and he did use it. He testified he used LISTEN on about 50 percent of his patients. The device helped him to speed up his assessment of patients. The finding is supported by clear and convincing evidence.
Dr. Ames also assigns error to a sentence in finding 1.13 indicating Patient One described his symptoms on the date of his initial visit; a sentence in finding 1.15 that he told Patient One eggs and mustard could be weakening his body; and a sentence in finding 1.16 stating he told Patient One he could cure his egg allergy. These findings, however, are all supported by the testimony of Patient One.
Dr. Ames assigns error to findings 1.17-1.23 to the extent an allergy other 8 than hay fever was implied. These findings indicate Dr. Ames treated Patient One for an egg allergy. They are supported by the patient's testimony. The doctor also assigned error to the first sentence of finding 1.24, which states he told Patient One he could only treat one allergy at a time and the patient would have to come back for additional treatments to treat each allergy. Again, this finding is supported by the patient's testimony.
Dr. Ames further assigns error to findings 1.25-1.29, which state Dr. Ames used LISTEN to treat Patient One for his allergy to eggs, but the device could not provide such treatment. The findings question the diagnosis of egg allergy and indicate Dr. Ames used the device for his own personal gain and failed to ensure it was not harmful to his patients. The findings indicated Dr. Ames's use of the device precluded him from making a proper diagnosis and treatment, thus subjecting Patient One to an unreasonable risk of harm. Patient One's testimony supports these findings with regard to his visits and treatment with Dr. Ames, who admitted using LISTEN with his patients and that it improved his efficiency in treating patients. Other patients testified as to what Dr. Ames told them about LISTEN and how he used it in their treatments. Dr. Ames testified it was possible to cure an allergy in one visit. From this testimony, the challenged findings were supported by clear and convincing evidence.
Whether LISTEN had FDA clearance or approval was argued by both parties. The Commission found the FDA had not cleared or approved the device. (findings 1.3-1.6, CP at 16-17). Dr. Ames did not challenge these findings and therefore they are verities. Haley, 117 Wn.2d at 728. Furthermore, these findings were supported by the testimony of the device's creator and the FDA. In any event, FDA clearance, or lack of it, was not of great import in the Commission's ruling.
Based on its findings, the Commission concluded Dr. Ames violated RCW 18.130.180(4). It believed the doctor violated this section because his actions created an unreasonable risk that Patient One could be harmed.
Dr. Ames contends the determination of negligence under this section was predicated on finding that LISTEN was an inefficacious device because it could not be used to make an appropriate diagnosis and/or provide effective treatment. The Commission, however, determined Dr. Ames used LISTEN to erroneously diagnosis and treat an egg allergy and consequently created an unreasonable risk Patient One would be harmed. Its conclusion was based on the following facts.
Dr. Ames testified about allergies and tests used to diagnose allergies. He testified kinesiology, the arm muscle testing process described by Patient One, can indicate an allergy. He also discussed blood tests and skin tests used by allergists. Dr. Ames did use a blood test, but did not do a skin test on Patient One. He used LISTEN to assist him in diagnosing allergies, but he did not have any evidence LISTEN was efficacious for diagnosing allergies. He had only heard from colleagues that a device similar to it was efficacious. Dr. Ames admitted he did not understand the physics behind the device and was unsure what voltage it produced. He did not receive any claims, warnings or labeling with the device. He received no personal training on LISTEN. Patient One testified that in his second visit, Dr. Ames used LISTEN to diagnose and treat an allergy to eggs. Based on these facts, the Commission did not err by concluding Dr. Ames created an unreasonable risk of harm to Patient One by using LISTEN to diagnose and treat allergies without any evidence the device was effective for that purpose. Furthermore, he created an unreasonable risk of harm to Patient One by using LISTEN without understanding how it worked. Dr. Ames failed to establish he had any evidence from which he based his conclusion the device was appropriate to use in the diagnosis and treatment of allergies.
Dr. Ames claims this conclusion is flawed for two reasons. First, he asserts any error he made was a one-time error in judgment and did not constitute negligence. But the Commission was not asked to determine if the device was inefficacious for every possible use. The Statement of Charges indicated Dr. Ames's use of the device with Patient One constituted negligence. The charge and the underlying statute is specific to a patient. See RCW 18.130.180(4). The evidence clearly and cogently established Dr. Ames's use of the device with Patient One created an unreasonable risk of harm, thus establishing a violation of RCW 18.130.180(4). The Commission was not required to conclude the device was inefficacious in all circumstances.
Dr. Ames also claims the blood tests established Patient One had an egg allergy. Accordingly, the Commission erred by concluding Dr. Ames's treatment of Patient One for an egg allergy was based on LISTEN and by concluding Patient One did not have an egg allergy. There was evidence that Dr. Ames did a blood test on Patient One who testified Dr. Ames told him his blood test detected an allergy to eggs. But Dr. David Martin, Dr. Ames's own expert, testified that a blood test result alone was not a basis for treatment. Patient One testified he did not like eggs, but he had no symptoms indicating an allergy to eggs and had never been diagnosed with an egg allergy prior to Dr. Ames's diagnosis.
The Commission's ruling, however, was not based on Dr. Ames's diagnosis that Patient One had an egg allergy. It found Dr. Ames created an unreasonable risk of harm to Patient One by using LISTEN to treat his egg allergy. This risk was amplified because Dr. Ames did not understand the mechanics behind the device. A blood test suggested the possibility of an egg allergy, but it did not change the fact that Dr. Ames treated this allergy with a device he did not understand and for which he had no training. This created an unreasonable risk of harm.
Dr. Ames further claims his supposed negligent use of LISTEN based on these facts was not charged and thus cannot support the Commission's conclusion. Specifically, he claims he was not prepared to defend against a claim that Patient One did not have an egg allergy. But the Statement of Charges clearly provides that his treatment of Patient One was at issue. It did not specifically charge him with misdiagnosing an egg allergy, but the Commission's decision was not based on a finding that Patient One had no egg allergy. The decision was based on the finding that Dr. Ames did not properly treat the allergy and used a device without proper investigation. The Statement of Charges put Dr. Ames on notice about his use of the device. The prehearing brief filed by the Department also put Dr. Ames on notice of its position. In these circumstances, Dr. Ames cannot claim he was unaware of the facts used by the Department to support its charges.
He claims the conclusion of negligence based on a failure to investigate was also unsupported and improper because it was not charged. The charges against Dr. Ames involved improper use of LISTEN. Contrary to his assertion, the Department did argue that its case was based upon Dr. Ames's use of the device and that it was not proper in his medical practice. It was Dr. Ames's own testimony that provided support for the finding he did not understand the device, the physics behind it, or how it worked. His testimony also indicated he did not receive any training or literature on the device. The finding that Dr. Ames did not properly investigate LISTEN prior to using it on his own patients was supported by the record.
Dr. Ames argues that because he practices alternative medicine, the Commission impermissibly discriminated against him. He does not cite any supporting facts in the record. Moreover, nothing in the record suggests the Commission members were biased against Dr. Ames or alternative medicine.
A medical provider violates RCW 18.130.180(4) if he acts in a manner that creates an unreasonable risk of harm to a patient. Dr. Ames treated Patient One with LISTEN for an egg allergy. He knew very little about the device. The evidence was clear, cogent, and convincing that Dr. Ames's use of the device created an unreasonable risk of harm. The Commission did not err.
Dr. Ames also claims the Commission erred by determining LISTEN was inefficacious and he promoted it for his own personal gain. RCW 18.130.180 states that it is unprofessional conduct for any licensed health care provider to promote for personal gain an unnecessary or inefficacious drug, device, treatment procedure, or service. The statute does not define "inefficacious." Webster's defines "inefficacious" as lacking the power to produce the desired effect. Webster's Third New World Dictionary, 1156 (1993). There was no evidence the device was capable of curing allergies. The findings support the conclusion that the device was inefficacious for this situation.
Dr. Ames appears to argue that in order for a device to be inefficacious, it must create an unreasonable risk of harm. He urges RCW 18.130.180(4) to be read in conjunction with RCW 18.130.180(16). An appellate court reviews questions of statutory construction de novo. Ballard Square Condo. Owners Ass'n v. Dynasty Constr. Co., 158 Wn.2d 603, 612, 146 P.3d 914 (2006).
The examination begins with the language of the statute and related statutes to determine whether plain statutory language shows the intended meaning of the statute in question. If this examination leads to a plain meaning, that is the end of the inquiry. If the statute is amenable to more than one reasonable interpretation, a court may then resort to legislative history, principles of statutory construction, and relevant case law to resolve the ambiguity and ascertain the meaning of the statute.
Id. (internal citations omitted).
RCW 18.130.180 begins by stating "[t]he following conduct, acts, or conditions, constitute unprofessional conduct for any license holder or applicant under the jurisdiction or chapter." The statute then lists 25 subsections that detail different conduct, acts, or conditions. Each numbered subsection is separate and distinct from the others and alone is unprofessional conduct. There is no basis for finding that portions or requirements of one subsection must be read into a different subsection. Thus, RCW 18.130.180(16) does not require that a device must demonstrate an unreasonable risk of harm in order to be inefficacious.
Dr. Ames further claims that even if the device was inefficacious, there was no evidence he used it to promote his own personal gain. The statute does not define "promote." "Promote" is defined as "to contribute to the growth, enlargement or prosperity of." Webster's Third New International Dictionary, 1815 (1993). The evidence established Dr. Ames used the device with about 50 percent of his patients. He stated his use of the device helped him speed up his assessment of patients. Three patients testified Dr. Ames used the device on them. All reported he told them the cure for their allergies was provided, or at least substantially provided, by LISTEN. He also told them he could only cure one allergy at a time.
The Commission entered several findings detailing Dr. Ames's use of LISTEN in his practice. Those findings were supported by clear and convincing evidence. The findings in turn support the conclusion that Dr. Ames used the device to promote his own personal gain. The evidence also showed clearly and convincingly that the device was inefficacious and could not produce the desired effect. The Commission did not err by finding Dr. Ames had violated RCW 18.130.180(16).
Dr. Ames argues the sanctions imposed were a manifest abuse of discretion because the evidence did not support a finding that he violated RCW 18.130.180(4) and .180(16). RCW 18.130.160 authorizes the imposition of sanctions based upon findings of unprofessional conduct. The Commission's findings of unprofessional conduct were proper. The sanctions imposed were permitted by RCW 18.130.160.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kato, J. Pro Tem.
WE CONCUR:
Sweeney, C.J.
Kulik, J.