Hung Dang, M.d., App. v. Wa State Dept. Of Health, Medical Quality Assurance Comm., Res. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
HUNG DANG, M.D., ) No. 78910-4-1
)
Appellant, )
)
v. )
) UNPUBLISHED OPINION
Judicial Review Agency Action of the )
WASHINGTON STATE DEPARTMENT)
OF HEALTH, MEDICAL QUALITY )
ASSURANCE COMMISSION, )
)
Respondent. ) FILED: August 19, 2019
SCHINDLER, J. — Hung Dang, MD appeals the superior court order affirming the
decision of the Washington State Department of Health Medical Quality Assurance
Commission (MQAC). MQAC concluded Dr. Dang committed unprofessional conduct in
violation of the Uniform Disciplinary Act, chapter 18.130 RCW; ordered oversight of his
license; and imposed at $5,000 fine. We affirm the amended MQAC decision and final
order.
On Call at St. Joseph Medical Center
Dr. Hung Dang is an otolaryngologist, specializing in the treatment of the ear,
nose, and throat(ENT). Dr. Dang works at Group Health Cooperative' in Tacoma. As
1 We note Kaiser Permanente acquired Group Health in 2017. We use "Group Health"
throughout the opinion.
No. 78910-4-1/2
a condition of his employment with Group Health, Dr. Dang maintains staff privileges
and works as an on-call emergency ENT specialist at St. Joseph Medical Center in
Tacoma. St. Joseph is one of several hospitals in the CHI Franciscan Health System
and is a level II trauma center. The CHI Franciscan Health System is a nonprofit
corporation dedicated to providing healthcare consistent with Catholic Health Initiatives.
The other hospitals include St. Francis Hospital in Federal Way, St. Clare Hospital in
Lakewood, St. Anthony Hospital in Gig Harbor, and St. Elizabeth Hospital in Enumclaw.
Emergency Medical Treatment and Labor Act
The Emergency Medical Treatment and Labor Act(EMTALA), 42 U.S.C. §
1395dd, requires hospitals to treat patients that need emergency care. The purpose of
EMTALA is to ensure that individuals receive adequate emergency medical care
regardless of ability to pay. Jackson v. E. Bay Hosp., 246 F.3d 1248, 1254 (9th Cir.
2001). Under EMTALA, a hospital must provide appropriate emergency medical care or
transfer the patient to another medical facility. 42 U.S.C. § 1395dd(b)(1).
An on-call physician may not refuse to provide medical care and treat a patient
properly transferred by an emergency room (ER) physician. 42 U.S.C. §
1395dd(d)(1)(B). Under 42 U.S.C. § 1395dd(d)(1)(B), a physician "is responsible for the
examination, treatment, or transfer of an individual in a participating hospital, including a
physician on call for the care of such an individual." A hospital that can provide
specialized care may not refuse to accept an appropriate transfer from a referring
hospital if the receiving hospital has the capacity to treat the patient. 42 U.S.C.§
1395dd(g), (c)(2)(B). A transfer to a medical facility is appropriate if "the transferring
hospital provides the medical treatment within its capacity which minimizes the risks to
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the individual's health," the receiving facility "has available space and qualified
personnel for the treatment of the individual," and the receiving facility "has agreed to
accept transfer of the individual and to provide appropriate medical treatment." 42
U.S.C. § 1395dd(c)(2)(A),(B).
Statewide Emergency Medical Trauma Care Centers
In 1990, the Washington State Legislature enacted the Statewide Emergency
Medical Services and Trauma Care System Act(EMSTCSA), chapter 70.168 RCW,"to
establish an efficient and well-coordinated statewide emergency medical services and
trauma care system." LAWS OF 1990, ch. 269; RCW 70.168.010(3). The legislature
states the intent of EMSTCSA is to "reduce costs and incidence of inappropriate and
inadequate trauma care and emergency medical service and minimize the human
suffering and costs associated with preventable mortality and morbidity." RCW
70.168.010(3). The objective of EMSTCSA is to "(a)[p]ursue trauma prevention
activities to decrease the incidence of trauma;(b) provide optimal care for the trauma
victim; (c) prevent unnecessary death and disability from trauma and emergency illness;
and (d) contain costs of trauma care and trauma system implementation." RCW
70.168.010(4).
EMSTCSA requires the Washington State Department of Health to designate
trauma care services at hospitals. RCW 70.168.015(5). EMSTCSA categorizes
hospitals into one of five levels of care. RCW 70.168.015(4). EMSTCSA designates
the level of trauma care services at each hospital as level I to level V, the highest level
of trauma care to the lowest level of trauma care. RCW 70.168.015(4),(15),(23).
Lower level designated trauma centers can transfer patients to high-level hospitals for
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care and treatment by a specialist. ROW 70.168.015(23); VVAC 246-976-700(8), (9).
Designated trauma service care hospitals must provide emergency and trauma services
to all patients requiring care without regard to ability to pay. ROW 70.168.130(3)(b).
Uniform Disciplinary Act
The Uniform Disciplinary Act (UDA), chapter 18.130 ROW, governs licensing and
discipline of physicians. The purpose of the UDA is (1) to protect the public and (2) to
protect the standing of the medical profession in the eyes of the public. In re the
Revocation of the License To Practice Medicine & Surgery of Kindschi, 52 VVn.2d 8, 11,
319 P.2d 824 (1958). The UDA gives the Washington State Department of Health
Medical Quality Assurance Commission (MQAC)2 the authority to regulate, monitor, and
discipline physicians. ROW 18.30.040(2)(b)(ix); chapter 18.71 ROW; chapter 18.71A
ROW.
Statement of Charges
On April 4, 2016, the Washington State Department of Health Medical Program
(Department of Health) filed a statement of charges against Dr. Dang, alleging violation
of EMTALA and ROW 18.130.180(1), (4), and (7) with respect to "Patient A," "Patient
B," and "Patient C." ROW 18.130.180, "Unprofessional Conduct," provides, in pertinent
part:
(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. . . .
(4) Incompetence, negligence, or malpractice which results in
injury to a patient or which creates an unreasonable risk that a patient may
be harmed. . . .
2 In July 2019 (LAWS OF 2019, ch. 55, § 7), MQAC became the "Washington Medical
Commission."
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No. 78910-4-1/5
(7) Violation of any state or federal statute or administrative rule
regulating the profession in question, including any statute or rule defining
or establishing standards of patient care or professional conduct or
practice.[3]
Patient A
On October 20, 2012, 61-year-old Patient A went to the ER at St. Clare Hospital.
St. Clare is a level IV trauma center. Patient A had a history of thyroid cancer and
undergone prior neck surgery. On October 20, Patient A had "facial swelling, an
enlarged tongue with airway obstruction, and difficulty with breathing and swallowing."
A CT4 scan showed
bilateral lymph node dissection of the neck, enlargement of the base of the
tongue with contiguous abnormal soft tissue swelling of the left oral floor
and left lateral wall of the oral cavity, possibly representing a recurrent
squamous cell carcinoma or an infectious or inflammatory process.
St. Clare did not have an on-call ENT doctor. The ER doctor concluded Patient
A needed a higher level of care from an ENT specialist. The ER doctor contacted Dr.
Dang at St. Joseph to request transfer of Patient A. Dr. Dang refused to accept the
transfer of Patient A because he was not on call for St. Clare but consulted with the ER
doctor and said the patient could "follow up with the clinic on Monday."
Because of "the dangerous nature of Patient A's possible airway obstruction," the
St. Clare ER doctor believed "a more urgent consult" was necessary and transferred
Patient A to Harborview Medical Center, a level !trauma center. Harborview accepted
the transfer. St. Clare airlifted Patient A to Harborview. An ENT specialist diagnosed
Patient A with "acute angioedema" and admitted Patient A to intensive care.
3 The legislature amended RCW 18.130.180 several times after 2016. LAWS OF 2018, ch. 216,§
2; LAWS OF 2018, ch. 300,§ 4; LAWS OF 2019, ch. 427,§ 17. The amendments do not change the
language pertinent to our analysis.
4 Computed tomography.
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Patient B
On November 23, 2013, 34-year-old Patient B went to the ER at St. Francis
Hospital for "sore throat, swelling, and difficulties with swallowing and breathing." St.
Francis is a level IV trauma center. A CT neck scan "showed fluid collection and
findings consistent with tonsillar abscess." The ER doctor concluded Patient B should
be transferred to St. Joseph for consultation and treatment by an ENT specialist. St.
Francis staff contacted St. Joseph on-call ENT specialist Dr. Dang to request the
transfer. Dr. Dang refused to consult or accept the transfer.
Patient C
On June 8, 2014, 24-year-old Patient C went to the ER at St. Clare. Patient C
had pain in his ear and throat and trouble swallowing. The ER doctor diagnosed Patient
C with a tonsillar abscess and a potential "life-threatening" airway obstruction.
Patient C was diagnosed with tonsillar abscess (a collection of pus behind
the tonsils that involves pain, swelling, and often radiates into the ear) with
mild airway obstruction. The treating staff suspected a retropharyngeal
abscess (deep neck space infections that can pose an immediate life-
threatening emergency with potential for airway compromise).
The ER doctor contacted St. Joseph on-call ENT specialist Dr. Dang to request a
transfer for treatment. Dr. Dang refused to consult or accept transfer of Patient C
because he was not on call for St. Clare.
The St. Clare ER doctor contacted Harborview. After learning Harborview did not
have the capacity to accept transfer of Patient C, the St. Clare ER doctor called CHI
Franciscan Associate Chief Medical Officer Dr. Kim Moore. Dr. Moore authorized
transfer of Patient C from St. Clare to St. Joseph for consultation and treatment by the
on-call ENT doctor.
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No. 78910-4-1/7
When Patient C arrived at St. Joseph, Dr. Dang refused to consult or treat
Patient C. Dr. Moore contacted Dr. Dang. Dr. Dang told Dr. Moore he would not treat
Patient C. Six hours later, Dr. Moore transferred Patient C to Madigan Army Medical
Center for treatment. Madigan is a level II trauma center.
Administrative Hearing
Dr. Dang retained an attorney and filed an answer to the statement of charges.
Dr. Dang denied the allegations that he violated EMTALA or RCW 18.130.180(1), (4),
and (7). Dr. Dang requested a hearing.
The three-day MQAC hearing began on January 30, 2017. The Department of
Health called Dr. Dang; Dr. Moore; expert witness Warren Appleton, MD, JD; and St.
Francis ER doctor Sarah Sliva to testify. Dr. Dang called expert witnesses Robert
Bitterman, MD, JD and Dr. Alan Pokorny and his practice partner Dr. Alex Moreano to
testify. The presiding chief health law judge admitted a number of exhibits into
evidence, including the Franciscan Health System (FHS) medical records for Patients A,
B, and C; the 2012 FHS bylaws; and orthopedic surgery records for Dr. Dang.
Dr. Dang testified he was acting as an on-call doctor only for St. Joseph. Dr.
Dang testified he agreed to consult on Patient A. Dr. Dang asserted he did not refuse to
consult on Patient B. Dr. Dang testified that he did not refuse to accept the transfer of
Patient C. Dr. Dang said he told Dr. Moore that he was not physically capable" of
treating Patient C. Dr. Dang testified that in late February or early March 2014, he had
ankle surgery. Dr. Dang said that he fell and injured his heel on June 8, 2014 and took
a "hydrocodone and acetaminophen combination . . . pill" for the pain.
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No. 78910-4-1/8
Dr. Moore testified that she approved the transfer of Patient C from the St. Clare
ER to St. Joseph's ER. Dr. Moore said Dr. Dang "refused to come in and see the
patient." Dr. Moore called Dr. Dang and "asked him to go in and see the patient as the
on-call ear, nose and throat doctor." Dr. Dang told Dr. Moore he "would not go in to see
the patient because the patient had come from St. Clare." Dr. Moore testified that Dr.
Dang did not give "any other reason why he would not or could not come in and see the
patient."
Dr. Moore testified Dr. Dang had a duty to come to the St. Joseph ER on June 8,
,
2014 to consult and treat Patient C. Dr. Moore said that "when a request is made for
consult," the FHS bylaws state the "consultant must appear as - as reasonably as
patient's needs dictate and if they are unable to care for the patient, then that physician
needs to assist to find someone else who can." If the on-call doctor is unavailable, "the
physician should try to find coverage or backup" and let the emergency department
"know that there is a crisis" and that the physician is "not going to be available for call so
if a patient presents that needs their services, they can start to look outside of that
hospital." Dr. Moore testified Dr. Dang "did not tell me that he was unable to perform his
[on-]call duties."
Expert witness Dr. Appleton testified that in his opinion, Dr. Dang violated the
professional conduct of licensed health care providers under RCW 18.130.180 and
EMTALA. Dr. Appleton testified that because of the dangerous nature of the airway
obstruction, the ER doctor could not discharge Patient A and follow the advice of Dr.
Dang to wait until the following Monday. Dr. Appleton testified Dr. Dang violated the
standard of care by refusing to consult and admit Patient B to St. Joseph. Dr. Appleton
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No. 78910-4-1/9
testified the condition of tonsillar abscess of Patient B was an emergency that required
immediate treatment by an ENT specialist. Dr. Appleton testified the tonsillar abscess
of Patient C was an unstable medical emergency condition and the refusal of Dr. Dang
to consult and admit the patient violated the standard of care and EMTALA.
Dr. Dang's expert witnesses Dr. Bitterman and Dr. Pokorny testified that Dr.
Dang did not violate the standard of care or EMTALA.
Dr. Moreano is an ENT surgeon and practice partner with Dr. Dang at Group
Health in Tacoma. Dr. Moreano testified Group Health affiliated with St. Joseph in
Tacoma. Dr. Moreano said that as the on-call ENT specialist at St. Joseph, he regularly
receives calls from the ER doctor at St. Clare and St. Francis to consult. Dr. Moreano
testified that he and the other two members of the Group Health ENT practice group,
Dr. Dang and Dr. Ken Deem,"decided" to tell the ER doctors from the other FHS
hospitals that "by the bylaws of the [FHS]system we were not obligated to get involved
in - in the care of those patients." However, Dr. Moreano conceded,"We were told by
our own [Group Health] leadership that we must comply with their request that we
manage the patients from their entire system."
MQAC Decision and Order
On September 29, 2017, MQAC issued a 22-page decision, "Findings of Fact,
Conclusions of Law, and Final Order." The MQAC decision sets forth extensive findings
of fact that address FHS, EMTALA, statewide emergency medical trauma centers, and
the emergency medical conditions of Patients A, B, and C. MQAC made a number of
credibility findings. MQAC expressly found Dr. Dang's testimony that he did not refuse
to consult on Patient B and that he was unable to treat Patient C not credible. MQAC
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No. 78910-4-1/10
found Dr. Appleton's expert testimony that Dr. Dang violated ROW 18.130.180 and
EMTALA more credible than the expert witnesses who testified on behalf of Dr. Dang.
MQAC found FHS has a procedure to transfer patients.
FHS has a Patient Placement Center, which may be used to
organize or facilitate an orderly patient intake/transfer process. However,
use of a Patient Placement Center does not preclude 'doctor to doctor'
consults or transfer requests. Further, practitioners are not required by
FHS to use the transfer/placement center. Moreover, failure to utilize a
Patient Placement Center does not relieve a practitioner from his/her
obligations under the Emergency Treatment and Active Labor Act.[5]
With respect to Patient A, MQAC concluded Dr. Dang did not violate ROW
18.130.180 or EMTALA. Specifically, MQAC found that with respect to Patient A, Dr.
Dang "was not on-call" at St. Clare Hospital but consulted with the St. Clare ER doctor
and suggested Patient A follow up with the clinic two days later.
MQAC concluded there was "insufficient evidence to find that the Respondent
violated EMTALA with regard to Patient B." But MQAC concluded Dr. Dang violated
ROW 18.130.180:
[T]he Respondent's refusal to consult with the emergency room doctor
concerning the care of Patient B lowered the standing of the profession in
the eyes of the public. In addition, the Respondent's refusal to consult
with a fellow physician, acting in good faith to help a patient, created an
unreasonable risk of harm to Patient B.
With respect to Patient C, MQAC concluded Dr. Dang violated EMTALA and
ROW 18.130.180:
Patient C was experiencing an emergency medical condition, which had
not been stabilized, and his transfer to [St. Joseph] was appropriate. As
such, the Respondent violated EMTALA when he failed to treat Patient C, •
while on call for [St. Joseph]. However, assuming arguendo that the
transfer was improper, the Respondent(as the on-call specialist), was
nonetheless obligated under EMTALA to appear and treat Patient C once
he was transferred to [St. Joseph]. In addition, the Respondent's failure to
5 Footnotes omitted.
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No. 78910-4-1/11
identify a backup or to inform Dr. Moore (or [St. Joseph]) that he was
unavailable at a time contemporaneous to the transfer, was inconsistent
with Respondent's explanation. Lastly, the Respondent's refusal to treat
Patient C created an unreasonable risk of harm to Patient C and lowered
the standing of the profession in the eyes of the public.
MQAC ordered oversight of Dr. Dang's medical license for two years and
imposed monitoring requirements and a $5,000 fine.
Motion To Reconsider
On October 11, 2017, the Department of Health filed a motion for reconsideration
to correct two scrivener's errors in the final order. Dr. Dang did not file a response or
object. On December 20, 2017, MQAC issued "Amended Findings of Fact, Conclusions
of Law, and Final Order" correcting the two scrivener's errors.
Superior Court Appeal
Dr. Dang filed a petition for judicial review in superior court. The superior court
affirmed the amended MQAC final order but modified the monitoring period to begin
May 26, 2017 instead of September 29, 2017. Dr. Dang appeals the superior court
"Order on Petition for Judicial Review."
Standard of Review
The Washington Administrative Procedure Act(WAPA), chapter 34.05 RCW,
governs judicial review of disciplinary proceedings under the UDA, chapter 18.130
RCW. On review, we sit in the same position as the superior court and apply the WAPA
standards directly to the record before the agency. Tapper v. Emp't Sec. Dep't, 122
Wn.2d 397, 402, 858 P.2d 494 (1993). As the party challenging MQAC's decision, Dr.
Dang bears the burden of establishing the decision is invalid under one or more of the
WAPA criteria. RCW 34.05.570(1)(a).
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No. 78910-4-1/12
Under RCW 34.05.570(3), we will reverse only if(1) the administrative decision is
based on an error of law,(2) the administrative decision is unsupported by substantial
evidence,(3) the administrative decision is arbitrary or capricious,(4) the administrative
decision violates the constitution,(5) the order is inconsistent with a rule of the agency,
(6) the agency employed improper procedures, or (7) the order is outside the agency's
statutory authority. Tapper, 122 Wn.2d at 402. We review conclusions of law de novo.
Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 730, 818 P.2d 1062 (1991). However,
we give due deference to the expertise and knowledge of MQAC and substantial weight
to the interpretation of the law the agency administers when it is within the agency's
expertise. Haley, 117 Wn.2d at 728. MQAC may rely on its experience and specialized
knowledge to evaluate the evidence when finding unprofessional conduct. RCW
34.05.452(5); WAC 246-11-160(2); In re Disciplinary Proceeding Against Brown, 94 Wn.
App. 7, 13-14, 972 P.2d 101 (1998).
The standard of proof in a medical disciplinary proceeding is that findings of fact
must be proved by clear and convincing evidence. Nguyen v. Dep't of Health, Med.
Quality Assur. Comm'n, 144 Wn.2d 516, 529, 29 P.3d 689 (2001). We review MQAC's
findings of fact like any other proceeding under WAPA for substantial evidence. Ancier
v. Dep't of Health, Med. Quality Assur. Comm'n, 140 Wn. App. 564, 572, 166 P.3d 829(2007). Evidence is substantial if it is sufficient to persuade a reasonable person of the
truth or correctness of the order. Ancier, 140 Wn. App. at 572-73. We take MQAC's
evidence as true and draw all inferences in MQAC's favor. Ancier, 140 Wn. App. at
573. We will not weigh conflicting evidence or substitute our judgment regarding
witness credibility for that of MQAC. Davis v. Dep't of Labor & Indus., 94 Wn.2d 119,
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No. 78910-4-1/13
124, 615 P.2d 1279 (1980). Unchallenged agency factual findings are verities on
appeal. Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 244, 350 P.3d 647(2015).
After determining whether substantial evidence supports the findings of fact, the court
determines whether the findings in turn support the conclusions of law and judgment.
Nguyen, 144 Wn.2d at 530.
Unprofessional Conduct in Violation of RCW 18.130.180(1) and (4)
Dr. Dang claims that absent a finding that he owed a duty of care to Patients B or
C, MQAC erred in deciding he violated RCW 18.130.180(1) and (4).
The plain language of RCW 18.130.180(1) and (4) does not require MQAC to
find a duty of care. RCW 18.130.180(1) states, in pertinent part, that "unprofessional
conduct" is "[t]he 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." RCW 18.130.180(4) states, in pertinent part, that "unprofessional
conduct" is Iiincompetence, negligence, or malpractice which results in injury to a
patient or which creates an unreasonable risk that a patient may be harmed."
MQAC concluded Dr. Dang violated RCW 18.130.180(1) and (4) by refusing to
consult or treat Patients B and C. MQAC found the "refusal to consult" with the ER
doctor concerning treatment and care of Patient B "lowered the standing of the
profession in the eyes of the public" and "created an unreasonable risk of harm to
Patient B." MQAC concluded that the "refusal to treat Patient C created an
unreasonable risk of harm to Patient C and lowered the standing of the profession in the
eyes of the public."
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Dr. Dang cites Khunq Thi Lam v. Global Medical Systems, Inc., 127 Wn. App.
657, 111 P.3d 1258 (2005), to argue that without finding he owed a duty of care, MQAC
could not conclude he violated RCW 18.130.180(1) and (4). Khunq Thi Lam is
inapposite. In Khung Thi Lam, the court held the plaintiff must establish a duty of care
to prevail on a medical malpractice claim. Khung Thi Lam, 127 Wn. App. at 669.
Dr. Dang argues his conduct did not constitute an act of moral turpitude under
RCW 18.130.180(1). In Haley, the Washington Supreme Court held that the conduct of
a physician constitutes an act of moral turpitude if the physician abuses the status of the
profession or lowers the standard of the profession in the eyes of the public. Haley, 117
Wn.2d at 731-32. The conduct "must indicate unfitness to bear the responsibilities of,
and to enjoy the privileges of, the profession." Haley, 117 Wn.2d at 731.
To perform their professional duties effectively, physicians must enjoy the
trust and confidence of their patients. Conduct that lowers the public's
esteem for physicians erodes that trust and confidence, and so
undermines a necessary condition for the profession's execution of its vital
role in preserving public health through medical treatment and advice.
Haley, 117 Wn.2d at 734.
Dr. Dang cites In re the License To Practice Pharmacy of Farina, 94 Wn. App.
441, 972 P.2d 531 (1999), to argue his conduct did not constitute moral turpitude.
Farina is inapposite. In Farina, the court addressed the difference between moral
turpitude and violation of a criminal statute. Farina, 94 Wn. App. at 460. The court
concluded violation of a criminal statute does not necessarily constitute an act of moral
turpitude. Farina, 94 Wn. App. at 460-61. Conduct that meets the definition of "moral
turpitude" is an act of "inherent immorality." Farina, 94 Wn. App. at 460-61.
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No. 78910-4-1/15
Dr. Dang also claims MQAC applied a subjective standard in determining he
committed unprofessional conduct in violation of RCW 18.130.180(1). The record does
not support his argument. Substantial evidence supports the MQAC finding that Dr.
Dang refused to consult or treat Patients B and C and the findings support the
conclusion that Dr. Dang violated RCW 18.130.180(1) and (4).
Dr. Dang asserts that because there is no distinction between the circumstances
of Patient A and Patient B, MQAC erred in reaching a different conclusion for Patient B.
The record does not support his argument. MQAC found Dr. Dang did not refuse to
consult with the ER physician with respect to Patient A and said, "Patient A could follow
up with the clinic on Monday (two days later)."
MQAC found Dr. Dang committed unprofessional conduct in violation of RCW
18.130.180(1) and (4) with respect to Patient B. MQAC found that unlike Patient A, Dr.
Dang refused to consult with the ER doctor about the care and treatment of Patient B.
[Dr. Dang]'s refusal to consult with the emergency room doctor concerning
the care of Patient B lowered the standing of the profession in the eyes of
the public. In addition,[Dr. Dang]'s refusal to consult with a fellow
physician, acting in good faith to help a patient, created an unreasonable
risk of harm to Patient B.
Challenge to MQAC Finding Violation of EMTALA
Dr. Dang contends MQAC did not have the authority to address whether he
violated EMTALA. In his prehearing statement in the MQAC proceeding, Dr. Dang
argued MQAC did not have the authority to address whether he violated EMTALA.
However, Dr. Dang did not raise the argument again.
The Department of Health contends Dr. Dang waived the right to raise this
argument on appeal. We agree. In an appeal of a decision governed by WAPA, an
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No. 78910-4-1/16
appellant can raise an issue for the first time on only if (1) the appellant did not know
and had no duty to discover facts that gave rise to the issue,(2) the appellant did not
have an opportunity to raise the issue, or (3) the issue arose from a change in
controlling law or a change in agency action and the interests of justice require
resolution. RCW 34.05.554(1)(a)-(d); King County v. Boundary Review Bd. for King
County, 122 Wn.2d 648, 668, 860 P.2d 1024 (1993). An appellant must do more than
raise the issue below. Boundary Review Bd., 122 Wn.2d at 670; Kitsap All. of Prop.
Owners v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 160 Wn. App. 250, 271-72, 255
P.3d 696 (2011).
Nonetheless, we note that under the plain and unambiguous language of RCW
18.130.180(7), MQAC has the authority to determine whether "[v]iolation of any state or
federal statue or administrative rule regulating the profession in question, including any
statute or rule defining or establishing standards of patient care or professional conduct
or practice," constitutes unprofessional conduct.6
Dr. Dang contends the United States Department of Health and Human Services
Secretary has the exclusive authority to initiate proceedings under EMTALA, and only
the United States Court of Appeals has jurisdiction over EMTALA claims.
The Department of Health filed charges under the UDA, not EMTALA. The
authority of MQAC under the UDA does not conflict with EMTALA. EMTALA specifically
states that "[t]he provisions of this section do not preempt any State or local law
requirement, except to the extent that the requirement directly conflicts with a
requirement of this section." 42 U.S.C. § 1395dd(f). In Goldfarb v. Virginia State Bar,
6 Emphasis added.
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421 U.S. 773, 792, 95 S. Ct. 2004, 44 L. Ed. 2d 572 (1975), the United States Supreme
Court recognized the compelling state interest in regulating healthcare professionals:
[S]tates have a compelling interest in the practice of professions within
their boundaries, and that as part of their power to protect the public
health, safety, and other valid interests they have broad power to establish
standards for licensing practitioners and regulating the practice of
professions.
Violation of RCW 18.130.180(7)
Dr. Dang argues the evidence does not support the conclusion that he violated
RCW 18.130.180(7). We disagree. Substantial evidence supports the conclusion that
Dr. Dang violated RCW 18.130.180(7) by refusing to treat Patient C in violation of
federal law. The ER doctor transferred Patient C to St. Joseph for treatment because
he "was experiencing an emergency medical condition, which had not been stabilized."
MQAC found the "transfer to [St. Joseph] was appropriate. As such, the Respondent
violated EMTALA when he failed to treat Patient C, while on call for [St. Joseph]."
Unchallenged finding of fact 1.17 states that "[a]fter Patient C arrived at [St. Joseph], the
Respondent was again contacted and he continued to refuse to consult or to treat
Patient C."
Dr. Moore testified that she recommended transferring Patient C from the St.
Clare emergency department to the St. Joseph emergency department for treatment.
Dr. Moore testified the St. Joseph emergency department(ED) doctor called her after
he transferred Patient C because Dr. Dang refused to treat Patient C. Dr. Moore
testified:
A So after the patient was transferred ED to ED, the ED physician at
St. Joseph contacted Dr. Dang and he refused to come in and see
the patient, so they called me.
Q Okay. And what did you do?
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No. 78910-4-1/18
A And I called Dr. Dang.
Q Okay. You spoke with him directly?
A Yes.
Q Okay. What did he tell you or did you ask him to accept the patient
or do you recall the conversation?
A To the best of my recollection, I believe that I asked him to go in
and see the patient as the on-call ear, nose and throat doctor.
Q Okay. And what did he respond?
A He said he would not go in to see the patient because the patient
had come from St. Clare.
Q Okay. Did he give you any other reason why he would not or could
not come in and see the patient?
A No.
Q Okay. Did he inform you that he had been injured —
A No.
Q — or that he was otherwise unavailable?
A No.
Substantial evidence supports the MQAC finding that Dr. Dang violated RCW
18.130.180(7) and EMTALA by refusing to treat Patient C after St. Clare transferred
Patient C to St. Joseph.
Denial of Request To Admit Documentary Evidence
Dr. Dang contends MQAC abused its discretion by denying his request to admit
documentary evidence. Dr. Dang argues the evidence would have refuted the
testimony of Dr. Moore and denial of his request is prejudicial.
At the end of his case, Dr. Dang sought to introduce new documentary evidence
to rebut the testimony of Dr. Moore. "The new evidence was in the form of a string of
emails addressed to and from the Respondent, Dr. Moore, and a number of addressees
who did not testify at [the] hearing." The MQAC findings describe the documentary
evidence:
The emails ranged in time from the year 2011 to 2014. [Dr. Dang's
attorney] represented that: a)the emails were taken from the
Respondent's personal home computer; b) the emails had been in the
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No. 78910-4-1/19
Respondent's possession; and c) they were not previously disclosed to
[the Department of Health's attorney].
WAC 246-11-390(7) states:
Documentary evidence not offered in the prehearing conference will not
be received into evidence at the adjudicative proceeding in the absence of
a clear showing that the offering party had good cause for failing to
produce the evidence at the prehearing conference.m
MQAC ruled Dr. Dang did not show good cause for failing previously to produce
the documentary evidence:
Here, Dr. Moore was identified at the prehearing conference as a
witness. The Respondent knew or should have known that any
documents containing prior statements by Dr. Moore could become
relevant. This is especially true given that the documents have been in
the Respondent's sole possession since 2011 and 2014, respectively.
Thus, these documents should have been disclosed if the Respondent
desired to have them become part of the record. Moreover, any
uncertainties pertaining to Dr. Moore's testimony could have been
resolved by deposing her. However, the Respondent's failure to do either
has resulted in prejudice to the Department at this stage of the
proceeding. Consequently, the Respondent has failed to demonstrate the
necessary good cause for failing to produce the evidence at the
prehearing conference.E81
The record supports the MQAC finding that Dr. Dang did not show good cause
because he did not produce the documentary evidence at the prehearing conference.
RCW 34.05.461(8)(a)
Dr. Dang argues the final order should be reversed because MQAC did not issue
the final order within the 90-day time limit under RCW 34.05.461(8)(a). The Department
of Health argues the 90-day time limit is directory, not mandatory. We agree with the
Department of Health.
7 Dr. Dang asserts MQAC erred by not engaging in an analysis under Burnet v. Spokane
Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). Burnet does not apply to an administrative
proceeding. WAC 246-11-390 controls.
8 Footnote omitted.
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No. 78910-4-1/20
RCW 34.05.461(8)(a) states, in pertinent part, that "final orders shall be served in
writing within ninety days after conclusion of the hearing or after submission of memos,
briefs, or proposed findings. . . unless this period is waived or extended for good cause
shown." A statute setting a time within which a public officer is to perform an official act
is directory unless the nature of the act or the language of the statute makes clear that
the time designation limits the power of the officer. Niichel v. Lancaster, 97 Wn.2d 620,
623-24, 647 P.2d 1021 (1982). When the time for or manner of performing the
authorized action is not essential to the purpose of the statute, the time and manner
provisions are considered directory. Niichel, 97 Wn.2d at 624.
Amended Findings of Fact, Conclusions of Law, and Final Order
Dr. Dang cites RCW 34.05.470(3) to argue the Amended Findings of Fact,
Conclusions of Law, and Final Order is unlawful because the presiding officer did not
comply with the 20-day time limit to file an amended final order.
The Department of Health filed a timely motion for reconsideration of the final
order to correct two scrivener's errors. Dr. Dang did not file a response to the motion or
object. On December 20, 2017, MQAC issued an amended final order correcting the
two scrivener's errors:
[MQAC] notes that two Scrivener's errors occurred in the Final
Order. A Scrivener's error appears in Paragraph 1.3, which reads "[t]he
Respondent was employed by [St. Joseph] at all times. . . ["] instead of
"[t]he Respondent was employed by Group Health Cooperative at all times
relevant to this matter." In addition, a Scrivener's error appears in
Paragraph 1.10, which reads "[s]pecifically, the Respondent was not on-
call at [St. Joseph]. . . ," instead of "[s]pecifically, the Respondent was not
on-call at St. Clare Hospital and thus had no duty to treat or accept the
transfer of Patient A."[91
9 Emphasis in original; some alteration in original.
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No. 78910-4-1/21
Dr. Dang argues that because he filed the petition for judicial review in superior
court before the presiding officer issued the amended final order, CR 60(a) controls.
But the civil rules do not apply to administrative agency proceedings. See DeLacey v.
Clover Park Sch. Dist., 117 Wn. App. 291, 296, 69 P.3d 877 (2003).
Due Process
For the first time on appeal, Dr. Dang contends MQAC violated his procedural
right to due process on a number of grounds. Subject to certain limited exceptions that
are not applicable here, RCW 34.05.554(1) bars a litigant from raising issues on appeal
not raised before the agency. With the exception of his claim that MQAC did not
consider the telephonic testimony, we decline to consider the arguments he raises for
the first time on appeal.
Procedural due process requires notice and an opportunity to be heard "'at a
meaningful time and in a meaningful manner.'" Amunrud v. Bd. of Appeals, 158 Wn.2d
208, 216, 143 P.3d 571 (2006)10 (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.
Ct. 893, 47 L. Ed. 2d 18 (1976)). "The process due depends on what is fair in a
particular context." In re Det. of Morgan, 180 Wn.2d 312, 320, 330 P.3d 774 (2014).
In Mathews, the United States Supreme Court articulated a balancing test to aid in
determining when, and to what extent, procedural protections are required:
[D]ue process generally requires consideration of three distinct factors:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335.
10 Internal quotation marks omitted.
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No. 78910-4-1/22
Dr. Dang contends he did not have a meaningful opportunity to be heard during
the three-day administrative hearing. The record does not support his argument. Dr.
Dang was represented by counsel, he called expert witnesses to testify on his own
behalf, his practice partner testified, he testified, and MQAC admitted documentary
evidence he presented.
The transcript of the MQAC hearing indicates the testimony of the witnesses who
testified by telephone is not "audible." Dr. Dang contends that because the transcript
shows the testimony of his expert witnesses Dr. Bitterman and Dr. Pokorny and the
testimony of Dr. Sliva was "not audible," MQAC ignored that testimony. The record
does not support his argument.
The witnesses testified at the hearing. The Amended Findings of Fact,
Conclusions of Law, and Final Order makes clear that MQAC, Dr. Dang, his attorney,
and the attorney for the Department of Health heard the testimony of Dr. Sliva, Dr.
Bitterman, and Dr. Pokorny. The Department of Health attorney addressed the
testimony of these witnesses in closing argument. Dr. Dang's attorney cited and relied
on the testimony of Dr. Sliva, Dr. Bitterman, and Dr. Pokorny in closing argument. The
record shows that in the decision, MQAC did not rely on the transcript from the hearing.
The transcript of the hearing is not prepared until after a petition for judicial review is
filed. See RCW 34.05.566.11
11 RCW 34.05.566 states, in pertinent part, "(1) Within thirty days after service of the petition for
judicial review, or within further time allowed by the court or by other provision of law, the agency shall
transmit to the court the original or a certified copy of the agency record for judicial review of the agency
action."
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No. 78910-4-1/23
We affirm the Amended Findings of Fact, Conclusions of Law, and Final Order.12
WE CONCUR:
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12 The Department of Health does not contest the determination that the effective date of the two-
year oversight monitoring period is May 26, 2017.
23