Shantanu Neravetla, M.d. v. State Of Wa, Dept. Of Health , 198 Wash. App. 647 ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
April 11, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
SHANTANU NERAVETLA, M.D., No. 48394-7-II
Appellant,
v.
DEPARTMENT OF HEALTH, STATE OF PUBLISHED OPINION
WASHIGNTON,
Respondent.
MELNICK, J. — Shantanu Neravetla, M.D. appeals the Department of Health, Medical
Quality Assurance Commission’s (MQAC) final order requiring him to undergo a psychological
evaluation if he seeks licensure in Washington. MQAC found that Neravetla had a “mental
condition” that affected his ability to practice with reasonable skill and safety.
We conclude that MQAC did not err in its interpretation of the term “mental condition”
and that the statute at issue1 is not unconstitutionally vague. Further, MQAC did not violate
Neravetla’s due process rights, sufficient evidence exists to support the decision, MQAC’s
decision was not arbitrary and capricious, and the presiding officer did not violate the appearance
of fairness doctrine. We do not review the summary judgment motion denial or consider the
evidentiary issues raised. We affirm.
1
RCW 18.130.170.
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FACTS
In June 2011, Neravetla began a one-year residency program at Virginia Mason Medical
Center (VMMC) in Seattle. In the initial weeks of the program, the residency program director,
Dr. Larry Keith Dipboye Jr., received complaints about Neravetla’s performance. They related to
his professionalism, accountability, attendance, communication, and patient care. Dipboye and
Gillian Abshire, the manager of the Graduate Medical Education program, gave Neravetla a verbal
warning. Nonetheless, Neravetla continued to have issues with attendance and communication.
VMMC gave Neravetla a written warning and placed him on probation. A social worker also filed
a patient safety alert with VMMC because of Neravetla’s “belligerent” interactions with a nurse.
Administrative Record (AR) at 1962.
Dipboye and VMMC then required Neravetla to attend coaching sessions and a class with
Dan O’Connell, Ph.D., a psychologist and communication skills coach. O’Connell found
Neravetla to be “bitterly angry, with little insight and little ability to reflect on his own behavior
in relationships with others.” Clerk’s Papers (CP) at 25.
On February 9, 2012, VMMC referred Neravetla to the Washington Physicians Health
Program (WPHP) for a mental status evaluation. The referral occurred because of Neravetla’s
interaction with the nurse in the patient safety alert incident and Neravetla’s failure to take
accountability for his actions or adequately process direct feedback on his behavior.
Two doctors from the clinical staff at WPHP evaluated Neravetla. Both doctors found
Neravetla to be disconnected and non-responsive to queries. They also found him to be “confused,
defensive, angry, and upset, raising his voice with the interviewers.” CP at 25. He also brought
WPHP’s receptionist to tears. Based on their assessments, WPHP referred Neravetla to obtain a
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comprehensive evaluation at Pine Grove Behavioral Health Center, one of three recommended
evaluators.
Neravetla presented himself to Pine Grove without informing WPHP. Psychiatrist, Teresa
Mulvihill, M.D., and psychologist, Ed Anderson, Ph.D., evaluated him. Anderson evaluated
Neravetla as “defensive, lacking insight, blame-shifting, and denying and minimizing how his
internship was at risk at VMMC.” CP at 26. The Pine Grove evaluators made their evaluation
based on their interactions with Neravetla, and information provided by both VMMC and
Neravetla. Pine Grove diagnosed Neravetla with an “Occupational problem (disruptive behavior)
(Axis I); and prominent obsessive-compulsive and narcissistic traits (R/O personality disorder
NOS with obsessive-compulsive and narcissistic traits) (Axis II).”2 CP at 26. The Pine Grove
evaluators did not feel comfortable recommending that Neravetla return to his residency and
recommended that before that occurred, he participate in an intensive six-week residential
treatment. Pine Grove did not diagnose Neravetla with any mental illness.
WPHP reported Neravetla to MQAC. WPHP indicated its concern about Neravetla’s
ability to practice medicine because Neravetla had had no contact with WPHP and WPHP did not
know where Neravetla was. WPHP did not know Neravetla had gone to Pine Grove for an
evaluation. Subsequently, the residency program terminated Neravetla and VMMC held a
grievance hearing. Neravetla’s limited license expired in July 2012.
On March 18, 2013, MQAC issued charges against Neravetla. It alleged that sanctions
should be imposed because Neravetla was “unable to practice with reasonable skill and safety
pursuant to RCW 18.130.170(1).” AR at 5.
2
MQAC did not find that Neravetla suffered from a personality disorder.
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Neravetla denied the allegations and asserted that no grounds existed to impose sanctions.
He asserted defenses, including that he did not suffer from any mental disorder3 and that MQAC
lacked jurisdiction.
Neravetla filed a motion for summary judgment before MQAC, arguing that substantial
evidence did not exist to prove he could not practice with reasonable skill and safety because of a
mental condition. He included expert reports that concluded he had never been diagnosed with
any mental illness and that he was fit for duty.
The presiding officer4 denied Neravetla’s motion for summary judgment because genuine
issues of material fact existed regarding Neravetla’s ability to practice with reasonable skill or
safety because of a mental condition.
MQAC held a hearing on the charges. At the beginning of the hearing, the presiding officer
asked a member of MQAC’s panel, Dr. Thomas Green, a former VMMC employee, whether he
could hear and assess the case in an impartial manner. Green stated that although he did know
some of the people involved in the case, he had no doubt about his ability to give Neravetla a fair
hearing. Green agreed to voice any concerns about his impartiality throughout the proceedings.
After hearing testimony, MQAC entered a final order and findings of fact and conclusions
of law.5 MQAC made specific credibility determinations in its findings of fact. MQAC
determined that the clinic staff from WPHP were credible because their descriptions of their
3
Neravetla initially said he did not suffer from a narcissistic personality disorder, but later
expanded it to any mental disorder.
4
MQAC hearings are adjudicated by five MQAC members, with a presiding officer who is a
“health law judge.” AR at 1835.
5
Neravetla does not assign error to any finding of fact. Findings of fact are verities on appeal.
Tapper v. Emp’t Sec. Dep’t, 122 Wash. 2d 397, 407, 858 P.2d 494 (1993).
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interactions with Neravetla were consistent. In addition, it found Pine Grove’s staff and O’Connell
to be credible.
MQAC accepted Anderson’s conclusion that Neravetla suffered from the condition of
Disruptive Physician Behavior, an occupational problem. Neravetla’s demeanor as testified to by
witnesses, was consistent with the diagnosis. MQAC found that this occupational problem
interfered with Neravetla’s ability to communicate and work with others, and if continued, would
impede his ability to practice medicine safely. His occupational problem rose to the level that
patient care would be adversely affected.
MQAC’s conclusions of law stated in relevant part:
2.4 The Department proved by clear and convincing evidence that [Neravetla’s]
ability to practice with reasonable skill and safety was sufficient impaired by an
occupational problem to trigger the application of RCW 18.130.170(1). . . .
2.5 In determining the appropriate sanctions, public safety must be considered
before the rehabilitation of [Neravetla]. RCW 48.130.160. . . .
2.6 The Department requests that [Neravetla] be ordered to comply with the
Pine Grove treatment recommendations. The Commission declines to do this.
CP at 32-33. The final order provided that if Neravetla sought licensure in Washington for a
health care credential, he “shall undergo a psychological evaluation by a WPHP approved
evaluator and follow whatever recommendations are contained in that evaluation.” CP at 33.
Neravetla filed a petition for judicial review to set aside MQAC’s final order. The superior
court affirmed the MQAC decision. Neravetla appeals.
ANALYSIS
I. MENTAL CONDITION
Neravetla argues that MQAC committed legal error by creating an “Amorphous and
Arbitrary” standard for the term “Mental Condition.” Br. of Appellant at 26. He also argues that
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MQAC conflated the requirement that he have a mental condition that prevents him from
practicing safely with unprofessional conduct.6 We disagree.
A. LEGAL PRINCIPLES
We review this case under the Administrative Procedure Act (APA), 7 and directly review
the agency record. Ames v. Health Dep’t Med. Quality Health Assurance Comm’n, 166 Wash. 2d
255, 260, 208 P.3d 549 (2009). We may reverse an administrative order (1) if it is based on an
error of law, (2) if it is unsupported by substantial evidence, (3) if it is arbitrary or capricious, (4)
if it violates the constitution, (5) if it is beyond statutory authority, or (6) when the agency employs
improper procedure. Ames, 166 Wash. 2d at 260; RCW 34.05.570(3) (a), (b), (c), (d), (e), (h), (i).
When reviewing an administrative agency decision, we review issues of law de novo.
Ames, 166 Wash. 2d at 260. We may “then substitute our judgment for that of the administrative
body on legal issues.” Ames, 166 Wash. 2d at 260-61. However, we should “accord substantial
weight to the agency’s interpretation of the law it administers—especially when the issue falls
within the agency’s expertise.” Ames, 166 Wash. 2d at 261.
“[T]he challenger has the burden of showing the department misunderstood or violated the
law, or made decisions without substantial evidence.” Univ. of Wash. Med. Ctr. v. Dep’t of Health,
6
We accepted an amicus curiae brief from the Legal Aid Society-Employment Law Center.
Amicus raises many issues not raised by Neravetla. We may, but usually do not, reach arguments
raised only by amicus. State v. Duncan, 185 Wash. 2d 430, 440, 374 P.3d 83 (2016). We do not
reach the issues raised solely in the amicus curiae brief.
MQAC filed a brief in response to amicus curiae’s brief. Neravetla filed a motion to strike
MQAC’s appendix in its response brief to amicus curiae’s brief. We grant Neravetla’s motion to
strike.
7
Ch. 34.05 RCW.
6
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164 Wash. 2d 95, 103, 187 P.3d 243 (2008). “We do not reweigh the evidence.” Univ. of Wash.
Med. Ctr., 164 Wash. 2d at 103.
We review “a challenge to an agency’s statutory interpretation and legal conclusions de
novo under the error of law standard.” Greenen v. Wash. State Bd. of Accountancy, 126 Wash. App.
824, 830, 110 P.3d 224 (2005). “If a statute’s meaning is plain, then the court must give effect to
the plain meaning as expressing what the legislature intended.” Campbell v. Dep’t of Soc. &
Health Servs., 150 Wash. 2d 881, 894, 83 P.3d 999 (2004). We evaluate a statute’s plain language
to determine legislative intent. Greenen, 126 Wash. App. at 830. “Under the plain meaning rule,
courts derive the meaning of a statute from the ‘wording of the statute itself.’” Strain v. W. Travel,
Inc., 117 Wash. App. 251, 254, 70 P.3d 158 (2003) (quoting Rozner v. City of Bellevue, 116 Wash. 2d
342, 347, 804 P.2d 24 (1991)).
“A statute is ambiguous when, either on its face or as applied to particular facts, it is fairly
susceptible to different, reasonable interpretations.” Strain, 117 Wash. App. at 254. If the plain
language is ambiguous, we “may review the statute’s legislative history, including legislative bill
reports, to help determine a statute’s intent.” Greenen, 126 Wash. App. at 830. We examine the
statute as a whole and its statutory interpretation must not create an absurd result. State v. Larson,
184 Wash. 2d 843, 851, 365 P.3d 740 (2015)..
B. MQAC CORRECTLY INTERPRETED THE LAW
1. The Term “Mental Condition”
Neravetla argues that MQAC incorrectly interpreted the term “mental condition” too
broadly and that it must mean a diagnosable mental illness. We disagree.
The term “mental condition” is contained in RCW 18.130.170(1) which states:
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If the disciplining authority believes a license holder may be unable to practice with
reasonable skill and safety to consumers by reason of any mental or physical
condition, a statement of charges in the name of the disciplining authority shall be
served on the license holder and notice shall also be issued providing an opportunity
for a hearing. The hearing shall be limited to the sole issue of the capacity of the
license holder to practice with reasonable skill and safety. If the disciplining
authority determines that the license holder is unable to practice with reasonable
skill and safety for one of the reasons stated in this subsection, the disciplining
authority shall impose such sanctions under RCW 18.130.160 as is deemed
necessary to protect the public.
(Emphasis added).
Another section of this statute illustrates that the legislature recognized that a diagnosable
mental illness is not synonymous with a mental condition. “A determination by a court of
competent jurisdiction that a license holder is mentally incompetent or an individual with mental
illness is presumptive evidence of the license holder’s inability to practice with reasonable skill
and safety.” RCW 18.130.170(2)(f). The unambiguous plain language of the statute shows that a
mental condition is not the equivalent of a diagnosable mental illness. The plain language provides
that any mental condition that causes the license holder to be unable to practice safely would satisfy
the statute. RCW 18.130.170(1). The goal of the statute is to protect consumers and insure that
the license holder practices with reasonable skill and safety.
MQAC’s policy statement defines disruptive behavior as “Personal conduct, whether
verbal or physical, that negatively affects or that potentially may negatively affect patient care.
(This includes but is not limited to conduct that interferes with one’s ability to work with other
members of the health care team.)” AR at 1107. MQAC’s policy statement defines disruptive
behavior as including conduct that interferes with one’s ability to work with other members of the
health care team. In addition, the statement provides examples of disruptive behavior including:
difficulty working collaboratively with others, failing to respond to repeated calls, and responding
poorly to corrective action. MQAC’s policy statement states that hospitals should address a
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practitioner exhibiting disruptive behavior “before the quality of care suffers, or complaints are
lodged.” AR at 1108. MQAC’s policy statement provides support for its interpretation and
conclusion that disruptive behavior can limit a practitioner’s ability to practice with reasonable
skill and safety.
Therefore, we conclude that MQAC did not err in its interpretation of the term “mental
condition.” Neravetla’s occupational problem, disruptive physician behavior, would satisfy the
requirements of the statute’s provision despite not being a diagnosable mental illness in the
Diagnostic and Statistical Manual.
2. MQAC Did Not Conflate Mental Condition with Unprofessional Conduct
Neravetla also argues that MQAC conflated the requirement that he have a mental
condition that prevents him from practicing safely with unprofessional conduct. He claims this
conflation constitutes a legal error because MQAC made conclusions that would only be
appropriate under the latter statute that governs unprofessional conduct. We disagree.
RCW 18.130.180 lists approximately twenty-five types of “conduct, acts, or conditions
[that] constitute unprofessional conduct for any license holder.” However, none of the options
listed relates to the alleged actions and behavior of Neravetla or the charges asserted against him.
Neravetla does not identify which part of RCW 18.130.180 MQAC conflated with RCW
18.130.170.8 MQAC focused on Neravetla’s mental condition and his ability to safely treat the
public and not whether he committed an act or conducted himself in an unprofessional manner.
8
The only option that could possibly be related is: “Incompetence, negligence, or malpractice
which results in injury to a patient or which creates an unreasonable risk that a patient may be
harmed.” RCW 18.130.180(4). Yet, Neravetla was not accused of incompetence, negligence, or
malpractice, nor was there a specific event focused on by MQAC to establish one of the three.
9
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Therefore, we conclude that MQAC did not err by its interpretation of the statute and that
the argument that MQAC conflated the requirements of the statutes is without merit.
II. VAGUENESS
Neravetla argues that RCW 18.130.170 is unconstitutionally vague if the term “mental
condition” includes undefined disruptive behavior because it opens the door for doctors to be
charged for almost any type of conduct. He argues that if under RCW 18.130.170 disruptive
behavior can be characterized as a mental condition, the statute is unconstitutionally vague. We
disagree and conclude that the statute is not unconstitutionally vague.
The protections of due process apply to medical disciplinary proceedings. Haley v. Med.
Disciplinary Bd., 117 Wash. 2d 720, 739, 818 P.2d 1062 (1991). A vague statute offends due process.
In re Disciplinary Proceedings Against Curran, 115 Wash. 2d 747, 758, 801 P.2d 962 (1990).
“Therefore, any statute under which sanctions may be imposed for unprofessional conduct must
not be unconstitutionally vague.” Haley, 117 Wash. 2d at 739.
Statutes are presumed to be constitutional. Haley, 117 Wash. 2d at 739. “The party
challenging a statute’s constitutionality on vagueness grounds has the burden of proving its
vagueness beyond a reasonable doubt.” Haley, 117 Wash. 2d at 739. “A statute is void for vagueness
if it is framed in terms so vague that persons ‘of common intelligence must necessarily guess at its
meaning and differ as to its application.’” Haley, 117 Wash. 2d at 739 (quoting Connally v. Gen.
Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). The purpose of the vagueness
doctrine is to ensure that citizens receive fair notice as to what conduct is proscribed, and to prevent
the law from being arbitrarily enforced. City of Seattle v. Eze, 111 Wash. 2d 22, 26, 759 P.2d 366
(1988).
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“Some measure of vagueness is inherent in the use of language.” Haley, 117 Wash. 2d at
739. “[A] statute is not unconstitutionally vague merely because a person cannot predict with
complete certainty the exact point at which his actions would be classified as prohibited conduct.”
Eze, 111 Wash. 2d at 27. “[T]he common knowledge and understanding of members of the particular
profession to which a statute applies may also provide the needed specificity to withstand a
vagueness challenge.” Haley, 117 Wash. 2d at 743.
In In re Ryan, 97 Wash. 2d 284, 287, 644 P.2d 675 (1982), Ryan challenged the discipline
rules for the Washington State Bar Association, and argued that the terms “mental illness or other
mental incapacity” were too vague to withstand constitutional challenge. In rejecting his
argument, the court upheld the rules because “the mental condition must cause the attorney to be
unable to conduct his/her law practice adequately. . . . Thus, the Bar must establish that an attorney
is unable to conduct the practice of law adequately because of insanity, mental illness, senility,
excessive use of alcohol or drugs, or other mental incapacity.” Ryan, 97 Wash. 2d at 288. The court
further reasoned that “[g]iven the inherently uncertain nature of mental illness and the broad ranges
of the practice of law, we fail to perceive how a more definite standard could be articulated, and
Ryan has suggested none.” Ryan, 97 Wash. 2d at 288.
Here, the statute for physician discipline is similar because the mental condition must
render the physician unable to practice medicine safely. Reading the statute as a whole, a person
of common intelligence would likely conclude that the term does not require an actual diagnosable
mental illness, only a mental condition that affects a person’s ability to work with patients safely.
Therefore, we conclude that the statute is not unconstitutionally vague.
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III. DUE PROCESS VIOLATIONS
Neravetla argues that the statement of charges violated his right to notice because it did not
apprise him of the substance of the issues.9 He argues that the substance of the proceedings
changed to focus on his conduct and not whether he had a mental condition, so he was prejudiced
in his ability to prepare evidence to counter MQAC’s case. However, Neravetla fails to show how
the alleged lack of notice prejudiced him. He only argues in his brief that at the prehearing
conference he asked for more time to conduct more discovery and find additional witnesses and
documents; MQAC denied the request.
In addition, he argues that the final order violates due process because it is impossible for
him to comply with it. Because Neravetla received proper notice and because he could have
complied with the order, we disagree.
A. LEGAL PRINCIPLES
“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.” Nguyen v. Dep’t of Health Med. Quality Assurance Comm’n, 144 Wash. 2d
516, 523, 29 P.3d 689 (2001). “[T]he applicability of the constitutional due process guaranty is a
question of law subject to de novo review. Durland v. San Juan County, 182 Wash. 2d 55, 70, 340
P.3d 191 (2014).
9
It is not disputed that Neravetla held a protected property interest.
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B. NOTICE OF THE ALLEGATIONS
Neravetla’s argument that he did not receive notice of the charges is without merit. In a
case involving disciplinary proceedings against an attorney, the charging document “must state the
respondent’s acts or omissions in sufficient detail to inform the respondent of the nature of the
allegations of misconduct.” In re Disciplinary Proceeding Against Marshall, 167 Wash. 2d 51, 70,
217 P.3d 291 (2009) (internal quotations omitted). Due process requires that a respondent “be
notified of clear and specific charges and . . . be afforded an opportunity to anticipate, prepare, and
present a defense.” Marshall, 167 Wash. 2d at 70 (internal quotations omitted).
Here, Neravetla was apprised of the charges against him. The charging document stated
that sanctions should be imposed because Neravetla was “unable to practice with reasonable skill
and safety pursuant to RCW 18.130.170(1).” AR at 5. The statement of charges included a quote
of RCW 18.130.170(1) that clearly identified Neravetla’s inability to practice safely occurred
because of a mental or physical condition. Neravetla claims he was only charged with a mental
disorder, but he was actually charged with a mental condition. He also claims that the evidence
focused on conduct, but that was evidence of a mental condition. In addition, the “alleged facts”
section of the document explicitly described the facts MQAC relied on in asserting charges,
including that he had an “occupational problem/disruptive behavior.” AR at 4. Neravetla does
not identify how this was insufficient other than the arguments we reject above. MQAC did not
assert any other mental condition at the hearing, and therefore, Neravetla received adequate notice
of the charges he faced. Accordingly, we conclude that Neravetla received sufficient notice of the
charges against him.
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C. IMPOSSIBILITY OF COMPLIANCE WITH FINAL ORDER
Neravetla argues that the order violates his due process rights because it is impossible for
him to comply. He asserts that the order’s sanctions are “conditioned upon (1) Dr. Neravetla
getting another residency position, and (2) getting that position in Washington.” Br. of Appellant
at 45. He claims he is unable to satisfy the order unless those preconditions are met. We disagree
with Neravetla’s interpretation of the order; he can comply with it.
The order provides: “In the event that [Neravetla] seeks licensure in the state of Washington
for a health care credential, [Neravetla] shall undergo a psychological evaluation by a WPHP
approved evaluator and follow whatever recommendations are contained in that evaluation.” CP
at 33. The order does not require Neravetla to seek another residency in Washington. It merely
states what he must do if he seeks licensure in Washington for a health care credential. Because
Neravetla can comply with the order, it does not violate his due process rights and his argument
fails.
IV. INSUFFICIENT EVIDENCE
Neravetla argues that substantial evidence did not support the finding that he could not
practice medicine with reasonable skill and safety.10 We disagree.
Neravetla did not assign error to the agency’s findings of fact in the final order, therefore,
they are verities on appeal. Tapper v. Emp’t Sec. Dep’t, 122 Wash. 2d 397, 407, 858 P.2d 494 (1993).
We must determine whether the findings in turn support the conclusions of law and judgment.
Nguyen, 144 Wash. 2d at 530. Because the findings of fact are verities, we address only whether the
findings of fact support MQAC’s conclusions of law.
10
Neravetla is actually challenging MQAC’s conclusion of law and claiming that it does not flow
from the findings of fact.
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MQAC’s conclusion of law 2.4 provides: “The Department proved by clear and convincing
evidence that [Neravetla’s] ability to practice with reasonable skill and safety was sufficient[ly]
impaired by an occupational problem to trigger the application of RCW 18.130.170(1).” CP at 32.
Numerous findings support MQAC’s conclusion of law. O’Connell, whose testimony
MQAC adopted, described Neravetla as “bitterly angry, with little insight and little ability to reflect
on his own behavior in relationships with others.” CP at 25. MQAC also adopted the testimony
of the WPHP evaluators in its findings. They experienced Neravetla to be “confused, defensive,
angry, and upset, raising his voice with the interviewers.” CP at 25. In addition, at Pine Grove,
Anderson experienced Neravetla as “defensive, lacking insight, blame-shifting, and denying and
minimizing how his internship was at risk at VMMC.” CP at 26.
MQAC accepted the final opinion from Pine Grove that Neravetla had an occupational
problem, disruptive physician behavior. MQAC found that this occupational problem interfered
with Neravetla’s ability to communicate and work with others, and if continued, it would impede
his ability to practice medicine safely. His occupational problem rose to the level that patient care
was affected. Accordingly, its conclusion of law that Neravetla’s disruptive physician behavior, a
mental condition, prevented him from practicing with reasonable skill and safety flows from the
findings of fact.
Therefore, we conclude sufficient evidence exists to support MQAC’s decision and order
that Neravetla’s ability to practice with reasonable skill and safety was sufficiently impaired by an
occupational problem, disruptive physician behavior, to trigger the application of RCW
18.130.170(1).
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V. ARBITRARY AND CAPRICIOUS DECISION
Neravetla argues that MQAC’s decision was arbitrary and capricious because it relied on
unreliable hearsay and conflicting information to support its ruling. In addition, he argues the
decision was arbitrary and capricious because the panel disregarded the testimony of his witnesses.
He further argues that the panel arbitrarily discounted positive collateral information about him.
We disagree with Neravetla and conclude that MQAC’s order was not arbitrary and capricious.
Under RCW 34.05.570(3)(i), we shall grant relief from an agency order if the order is
arbitrary and capricious. An agency order is arbitrary or capricious “if it is willful, unreasoning,
and issued without regard to or consideration of the surrounding facts and circumstances.” Manke
Lumber Co. v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 113 Wash. App. 615, 623, 53 P.3d 1011
(2002). Action taken by a disciplinary board after giving a licensee ample opportunity to be heard,
“‘exercised honestly and upon due consideration,’” is not arbitrary and capricious even if an
erroneous conclusion has been reached. Keene v. Bd. of Accountancy, 77 Wash. App. 849, 860, 894
P.2d 582 (1995) (quoting Med. Disciplinary Bd. v. Johnston, 99 Wash. 2d 466, 483, 663 P.2d 457
(1983)). The scope of review under this standard is “very narrow” and the party seeking to
demonstrate that the action is arbitrary and capricious “must carry a heavy burden.” Pierce County
Sheriff v. Civil Serv. Comm’n of Pierce County, 98 Wash. 2d 690, 695, 658 P.2d 648 (1983).
Here, Neravetla argues that the order was arbitrary and capricious because MQAC found
there was insufficient evidence to make a determination as to what actually happened in his
residency, but then also found on the same information that he engaged in disruptive behavior. He
also argues that the panel identified hearsay testimony about events that occurred during
Neravetla’s residency to be unreliable, but then made conclusions premised on the same
information.
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Although Neravetla does not identify the statements he challenges, our independent review
of the record is that MQAC made the following finding of fact. “There was conflicting testimony,
much of it hearsay, concerning [Neravetla’s] conduct, performance, attendance, and
professionalism while in the residency program at VMMC. With the exception of Dr. O’Connell’s
testimony, which the Commission finds credible, and [Neravetla’s] own admission of missing
certain classes, the Commission makes no finding regarding [Neravetla’s] conduct during his
residency except to note that [Neravetla] had difficulty in relationships with some of his
supervisors.” AR at 1604.
MQAC accepted Pine Grove’s diagnosis that Neravetla had an occupational problem,
disruptive physician behavior. Neravetla misinterprets MQAC’s finding and what it was based
on. Therefore, Neravetla’s argument is without merit.
Next, Neravetla argues that the decision was arbitrary and capricious because MQAC
disregarded the testimony of all of his expert witnesses. This argument is without merit, because
we do not review credibility determinations. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850
(1990).. The panel below is in the best position to determine whether a witness is credible. See
Camarillo, 115 Wash. 2d at 71. In addition, MQAC did find Neravetla and his witnesses to be
credible, it just gave less weight to their testimony for reasons articulated in the final order.
Regardless, even if the panel discounted favorable evidence, it may do so.
Neravetla fails to show the MQAC order is invalid for any reason specified by the
controlling statute. Therefore, we conclude that the decision was not arbitrary and capricious.
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VI. APPEARANCE OF FAIRNESS DOCTRINE
Neravetla argues that the presiding officer violated the appearance of fairness doctrine by
allowing a former employee of the involved hospital, Green, to remain on the panel. 11 He argues
that the presiding officer should have conducted an independent inquiry into whether Green could
remain impartial. We conclude that the presiding officer did not violate the appearance of fairness
doctrine.
A medical professional’s license represents a property interest and cannot be revoked
without due process. Johnston, 99 Wash. 2d at 474. A basic requirement of due process is a “‘fair
trial in a fair tribunal.’” Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 43 L. Ed. 2d 712
(1975) (quoting In re Matter of Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)).
A biased decision maker violates this basic requirement, which applies to administrative agencies
as well as courts. Withrow, 421 U.S. at 47. The appearance of fairness doctrine “provides
additional protection because it requires that the agency not only act fairly but must also do so with
the appearance of fairness.” Clausing v. State, 90 Wash. App. 863, 874, 955 P.2d 394 (1998).
Pursuant to this doctrine, a judge must recuse herself “if [she] is biased against a party or [her]
impartiality may reasonably be questioned.” State v. Dominguez, 81 Wash. App. 325, 328, 914 P.2d
141 (1996). However, a party claiming bias must produce “[e]vidence of a judge’s actual or
potential bias . . . before the appearance of fairness doctrine will be applied.” Dominguez, 81 Wn.
App. at 329.
11
Although Neravetla specifically argues that the presiding officer, and not Green, violated the
appearance of fairness doctrine, his arguments seem to center on Green’s involvement. Even
though Neravetla does not argue it, nothing in the record demonstrates that Green could not be fair
and unbiased in hearing the evidence and deciding the case.
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“Under the appearance of fairness doctrine, proceedings before a quasi-judicial tribunal are
valid only if a reasonably prudent and disinterested observer would conclude that all parties
obtained a fair, impartial, and neutral hearing.” Johnston, 99 Wash. 2d at 478. But the presumption
is that administrative decision makers perform their duties properly and the party claiming a
violation must present specific evidence to the contrary, not speculation. Faghih, 148 Wash. App.
at 843.
Neravetla fails to demonstrate how the presiding officer violated the appearance of fairness
doctrine. Although VMMC previously employed Green and he acknowledged he knew the names
of some of the witnesses, Neravetla did not demonstrate that Green had an actual or potential bias.
Accordingly, there is no evidence in the record to show that either the presiding officer or the panel
was partial. Therefore, Neravetla’s argument fails.
VII. ERRORS BY PRESIDING OFFICER
Neravetla argues that the presiding officer committed multiple prejudicial errors including
denying his motion for summary judgment, refusing to admit his experts’ reports, and excluding
probative evidence. We do not consider any of these arguments.
A. MOTION FOR SUMMARY JUDGMENT
Neravetla argues that the presiding officer erred by denying his motion for summary
judgment. Where a denial of summary judgment is based on existence of disputed material facts,
we will not review it when raised after a trial on the merits. Weiss v. Lonnquist, 173 Wash. App.
344, 354, 293 P.3d 1264 (2013).
Here, the presiding officer denied Neravetla’s motion for summary judgment because
issues of material fact remained. MQAC held a trial on the merits of the issue thereafter.
Therefore, we do not review MQAC’s denial of the summary judgment motion.
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B. EXCLUSION OF EXPERTS’ REPORTS
Neravetla argues that the presiding officer refused to allow him to submit three expert
witnesses’ reports as exhibits, and he would only allow the reports to be admitted if he did not
conduct direct examination of his witnesses.
Despite Neravetla’s assertions, he did not actually offer the reports into evidence. The
presiding officer broached the topic on his own before Neravetla began presenting his case. But
the presiding officer made no ruling on the reports’ admission, and therefore, there is nothing for
us to review. In addition, the presiding officer did not limit Neravetla’s ability to conduct direct
examination of his witnesses.
C. OTHER EVIDENTIARY ISSUES
Neravetla argues that the presiding officer excluded probative evidence and that he
prohibited him “from introducing into evidence various documents.” Br. of Appellant at 49.
Neravetla also argues that the presiding officer “allowed Department attorneys to utilize
documents handed to them by VMMC’s counsel” that were not disclosed to him beforehand.
Neravetla’s brief cites to the record only in regard to the exclusion of testimony from one
witness, Dr. John Roberts. Neravetla wanted to call Roberts as a rebuttal witness. The presiding
officer asked him to make a proffer. Neravetla said that Roberts would testify consistently with
other prior testimony that Neravetla was accepting of feedback. He claimed the testimony was to
rebut the allegations by Anderson that Roberts did not know of Dipboye’s concerns. The presiding
officer did not allow him to testify because the testimony would not have been inconsistent with
what Anderson testified to, and did not qualify as rebuttal testimony. Neravetla does not identify
other documents he claims were excluded.
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Neravetla does not cite to any law to support his arguments nor does he provide any
reasoning as to why the presiding officer’s actions were error. Accordingly, we do not consider
the evidentiary issues. Bercier v. Kiga, 127 Wash. App. 809, 824, 103 P.3d 232 (2004); RAP
10.3(a)(6).
We affirm.
Melnick, J.
We concur:
Worswick, J.
Bjorgen, C.J.
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