Opposition Brief — Washington State Medical Quality Assurance Commission v. Nguyen

No. 01-734

in The

Supreme Court of the United States

WASHINGTON STATE MEDICAL

QUALITY ASSURANCE COMMISSION,

Petitioner,

BANG DUY NGUYEN, M.D.,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Washington

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RESPONDENT'S BRIEF IN OPPOSITION

TO A PETITION FOR A WRIT OF CERTIORARI

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Ratpo A. ALrieri, wsba 496

Attorney of Record

for the Respondent

211-Fourteenth Avenue East

Seattle, WA 98112-5299

206-324-7117

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Every state licenses physicians to practice medicine and

imposes sanctions for violating standards of professional

conduct, which may include revocation of the license.

Thirty states have chosen preponderance of the evidence

as the burden of proof, necessary to establish a violation.

The State of Washington, as one of those thirty states had

also chosen the preponderance rule.

Does the Due Process Clause of the Fourteenth

Amendment require the state of Washington to

apply the clear and convincing evidence stan-

dard of proof to revoke a license to practice

medicine instead of the preponderance of the

evidence standard?

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TABLE OF CONTENTS

Page

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Table Of Authorities 20. ccccvesccctccccosscoccsccecs iii

Response to Petition for Writ of Certiorari......... 1

Opissioms Below... ccccctiscdeveveustevestnesovocs 1

Constitutional and Statutory Provisions Involved... 1

Respondent’s Counter Statement............eeeeeee 1

Regulation of the Practice of Medicine in Washington

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Procpaleeral: FEGUOEY 6c csi ncccacievienesiedactnens 6

Respondent’s Statement of Reasons for Not Granting

FOIOR 0 os vcerccncastveevocnceteenehs seeeseetes 8

1. There is No Conflict Among the States over the

Burden of Proof Required by the Due Process

Clause In Medical Disciplinary Proceedings .. 9

2. The Washington Supreme Court’s Decision

Does Not Conflict with The U.S. Supreme

Court’s Due Process Analysis of the Private

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3. The Washington Supreme Court’s Decision

Does Not Fail to Recognize the State’s Substan-

tial Interest in Protecting the Lives And Health

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4. The Petition Does Not Raise an Important

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iii

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804

GROUT c cheer derccdevedocecarvnctevesvescececosess 3, 9

Johnson v. Board of Governors of Registered Den-

tists, 913 P.2d 931 (Wyo. 2000)........... eee ee eeee 3

Mathews v. Eldridge, 424 U.S. 319 (1976)............. 3

Nguyen v. Department of Health, 144 Wash.2d 515

GRUOER sc cavevercecvccrescaverctseredvesscececeece af

Painter v. Abels, 998 P.2d 931 (Wyo. 2000) ........... 3

Washington Medical Disciplinary Board v. John-

ston, 99 Wn. 2d 466, 663 P.2d 457 (1983)........... 3

STATUTES

Waa. Mev. Code © FEBS STO cc ccccccccsccvccccvecs 2

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

Bang Duy Nguyen M.D., the respondent respectfully

opposes the granting of a Petition for Writ of Certiorari in

this case.

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OPINIONS BELOW

The Respondent agrees with the statement of the

Petitioner setting forth the account of the Opinions ren-

dered below.

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Respondent agrees that the Petitioner has listed

the Laws of the State of Washington and that they are set

out in the Petitioner’s appendix.

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RESPONDENT’S COUNTER STATEMENT

The Respondent’s Counter Statement begins with this

question: What dangers has the Petitioner demonstrated

will result from application of due process principles as

defined by the Washington Supreme Court decision? The

answer is: None.

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What is the effect of the Washington State Supreme

Court’s decision in this case? The answer is: “The institu-

tion of the government exercising its power through an

administrative agency will have to use more care when

prosecuting its citizens.”

Regardless of the assertion of the Petitioner that

every state in the United States licenses the practice of

medicine and disciplines physicians for violating stan-

dards of professional conduct, it does not follow that the

States are free to ignore the requirements of the Constitu-

tion of the United States or their own State Constitutions

in either passing, implementing or enforcing their own

laws.

In the State of Washington, as pointed out by the

Petitioner in its Brief, the State of Washington enacted

and relies upon, the Washington Administrative Procedures

Act, Wash. Rev. Code 34.05 herein after referred to as the

APA. In deciding Dr. Nguyen’s case, the majority opin-

ion, at Page 520, cited this APA for the proposition that

the Washington State Supreme Court was given the

authority by the Washington State Legislature to: “grant

relief from an Administrative agency's ruling if, among other

things, the order is in violation of the constitution either on its

face or as applied. RCW 34.05.570(3)”

In this case the Washington State Supreme Court

made such a decision pursuant to the APA.

It is also under this same APA that virtually any

information can be used as evidence in physician disci-

plinary proceedings including second and third hand

hearsay.

The Washington State Supreme Court made no error.

It correctly followed the law set forth in Addington v.

Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed.2d 323

(1979), Mathews v. Eldridge, 424 U.S. 319 (1976), cited in

the Petitioner’s Brief, as well as Painter v. Abels, 998 P.2d

931, 940 (Wyo. 2000); Johnson v. Board of Governors of

Registered Dentists, 913 P.2d 1339 (Okla. 1996); Washington

Medical Disciplinary Board v. Johnston, 99 Wn. 2d 466, 474,

663 P.2d 457 (1983).

The Majority opinion in the Washington State

Supreme Court in Nguyen v. Dept of Health, 144 Wn. 2d

516 (Aug. 2001), recognized that the structure of the

procedures which were established by statute and written

by the Washington State Legislature were intended to

guaranty procedural due process.

The Majority opinion however also recognized that

the failing was not in the statutory structures themselves

but in the dynamic of the human thinking of the members

of an Agency, in this case the Medical Quality Assurance

Commission which is charged with the duty of investigat-

ing, policing, disciplining, prosecuting, punishing and

imposing penalties upon physicians it decides are guilty

of unprofessional conduct; more significantly, this is done

after determining these physicians are guilty of unprofes-

sional conduct based upon the rules, regulations, and

procedures authored by the Medical Quality Assurance

Commission in cooperation with the Department of

Health.

The Washington State Supreme Court recognized that

changing the burden of proof rule in these quasi criminal

proceedings from a preponderance of the evidence rule to

clear and convincing evidence rule would cause members

of the Medical Quality Assurance Commission to be

appropriately careful in their decision making given the

potentially disastrous ramifications of these decisions,

including loss of reputation, money, life style and respect,

profession, and standing in the community.

Failure to enforce the clear and convincing rule

would leave governmental power dangerously unfettered

and allowed to hide behind a smoke screen that there are

adequate statutory provisions to preserve due process. To

tolerate this would be akin to walking down the main

street of a Hollywood western movies set, looking at the

facades of the buildings on the set and making the

assumption that these were all complete buildings.

Due process protections must be substantive and not

illusory.

In the context of this case it is vital to focus on the

following realities:

(1) The Medical Quality Assurance Commis-

sion, working with its investigative arm, the Department

of Health decided what the rules of procedure would be,

(2) what rules would be followed when reviewing the

physicians’ conduct, (3) what rules would be followed

when these entities are acting as police and/or investiga-

tors; actions which at times are and were carried out

covertly, (5) what facts are and were sufficient upon

which to base charges of misconduct, (6) when a case

should be prosecuted, (7) whether the evidence is suffi-

cient for a conviction, (8) what punishment should be

imposed, including fines, suspension or revocation of

license.

The Commission and the Department of Health have

the power to enter a physicians office and conduct a

surprise search, regardless of whether he has patients

present or not.

The Commission does have the power to issue penal-

ties, both in the forms of suspension of license and fines.

In the State of Washington, our Supreme Court has

now said to these agencies, after reviewing their rules,

procedures, conduct of hearings, and the manner in

which they analyze and process the specific evidence as

in the instant case, that they need to be more careful in

prosecuting physicians.

Since the agency is making the rules, is prosecuting

and deciding the case, a low level burden of proof such as

a simple preponderance is insufficient to tell the finder of

facts it must exercise caution.

The lack of rules regarding admissibility of evidence

in administrative cases results in and did result in this

case in the State’s being able to present any kind of

information as evidence regardless of evidentiary quality

to convict a physician. This is particularly true when this

occurs in the context of a proceeding governed by a

simple preponderance rule that is applied especially

where there are virtually no rules of evidence.

Further, the Petitioner argues that to require clear

and convincing evidence would be an impairment of the

State of Washington’s ability to act as policemen, prosecu-

tor, judge, jury and executioner, but it shows no real or

practical way that its ability to enforce the laws of physi-

cian discipline would be impaired.

If the Petitioner’s arguments are to be accepted, that

there should be one rule for the entire country, why not

make it a clear and convincing rule? However, before

coming to that, what does the petitioner want? Does it

warit, one rule for the entire country, and then have the

federal government take over the licensing and the polic-

ing of physicians?

Regulation of the Practice of Medicine in Washington

The respondent agrees with the matters set forth in

this section of the Petitioner’s Brief.

Procedural History

The Respondent agrees in large part with the state-

ment set forth in this section of the Petitioner’s Brief,

except for the sentence beginning at the bottom of Page 7

of the Petitioner’s Brief where the Petitioner stated that

CPEP determined that Dr. Nguyen practiced medicine in

a manner that created an unreasonable risk that patients

may be harmed.

This expression: “may be harmed,” underscores the

likelihood of an unfair conviction based on speculation if

the simple preponderance rule is allowed to stand.

This disagreed with the testimony and assessment of

Dr. Peterson, the Petitioner’s own hired expert who

reviewed Dr. Nguyen’s files and Dr. Burdick’s assessment

as Preceptor and Dr. Miller’s conclusions about the fair-

ness of the structure established to monitor Dr. Nguyen.

The Petitioner’s assessment in the first paragraph of

Page 11 of its Brief said that the Washington Supreme

Court majority reasoned that the procedural safeguards

established by the Washington State Legislature could not

substitute for failure to impose the requisite minimum

burden of proof which is specifically designed to impress

the fact finder with the importance of the decision and

thereby reduce the chance of error.

All the statutorily created structures in the world that

carry the label procedural safeguards mean nothing when

applied by the unfettered collective errant mind of a body

of human beings who are given the power of being

police, prosecutor, judge, jury and executioner, who have

had the opportunity to convince themselves of guilt

before all the evidence is presented at a hearing.

To argue that a “simple preponderance rule” applies

in all civil cases, and should therefore apply in physician

discipline cases is specious. In the “usual” civil case, such

as a personal injury case, medical malpractice case, real

estate case, or contract case, the situation is entirely dif-

ferent.

In civil cases of these types, there is an attorney who

presents the case for the plaintiff, there is the attorney for

the defendant who defends and there are jurors under the

guidance of jury instructions issued by the Judge who

decide the factual issues and a Judge guided by the rules

of evidence.

In the alternative, a bench trial is decided by the

Judge who makes a determination. However, in neither

scenario is the fact finder the prosecutor. The collector of

the facts or evidence is also separate from the finder of

fact and the judge and the investigator do not take part in

the decision of the case.

This is particularly true in a jury case especially

where the fact finder is neither prosecutor nor execu-

tioner.

The Petitioner’s analysis beginning in the second

paragraph of Page 11, of its Brief when quoting from the

dissenting opinion with approval, fails to recognize that

the result of a professional disciplinary proceeding is no

longer simply an economic loss.

In addition to the economic loss and the loss of

reputation and the loss of standing the physician suffers

in his or her own community, the disciplined physician

must now be listed in the National Data Bank which is

available to all.

The Petitioner’s Brief also pointed out at Page 12,

that there are “procedural safeguards.” These are addi-

tional fagades which hide the absence of real due process.

This begs the question and makes for a bizarre sce-

nario given the fact that hearings conducted under the

APA allow virtually any information to become evidence.

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RESPONDENT’S STATEMENT OF REASONS

FOR NOT GRANTING PETITION

In its statement which began on Page 12 of its Brief,

the Petitioner fails to set forth any reasons or explana-

tions as to how the State would be impeded in prosecut-

ing physicians for unprofessional conduct; rather it

simply repeated the expression that the Washington State

Supreme Court inflated a physicians interest in his or her

Zoe ee a

license into a liberty interest equivalent to a loss of lib-

erty.

Requiring proof under the Clear and Convincing test

does not impair the State. In the Majority opinion the

Court discussed this thoroughly and the question as to

how the State will be impaired in its disciplining of

physicians if the Clear and Convincing Rule is used has

never been answered by the State.

At the bottom of Page 12 of its Brief, the Petitioner

argued that the State should have the freedom to develop

a variety of solutions to problems and not be forced into a

common mold.

The Petitioner wants that for the Washington State

Medical Quality Assurance Commission and the Dept. of

Health, but does not want that for the respective State

Supreme Courts - this argument does not want to allow

the State Supreme Courts in the respective States to be

able to tell its own state agencies that they are violating

the Constitution. This contravenes the Addington case

supra.

The Petitioner wants unfettered plenary power to act

unconstitutionally as it may so desire.

1. There is No Conflict Among the States over the

Burden of Proof Required by the Due Process

Clause In a Medical Disciplinary Proceeding.

The most likely answer in the other States using the

clear and convincing standard is that their procedures do

in fact appropriately safeguard due process. That is for

each State Court to decide.

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2. The Washington Supreme Court’s Decision Does

Not Conflict with the U.S. Supreme Court’s Due

Process Analysis of the Private Interest Involved.

Under this heading the Petitioner’s Brief failed to

recognize the essence of the Washington State Supreme

Court’s analysis that when dealing with matters which

are not simply “civil” or not simply “criminal” but are

“quasi-criminal” due process must have a different inten-

sity in application and requires something different than

either proof beyond a reasonable doubt or proof by a

simple preponderance.

As the majority opinion pointed out, the impact of a

decision of guilty must be examined. The impact in a

physician discipline case is not simply a fine like in a

traffic infraction, and at the other end of the scale it is not

jail. However between these two poles is an impact of a

different nature which the simple preponderance ruie is

not adequate to resolve in terms of due process.

3. The Washington Supreme Court’s Decision Does

Not Fail to Recognize the State’s Substantial Inter-

est In Protecting the Lives and Health of Its Citi-

zens. '

This is an argument designed to sell to the public by

giving it an emotional appeal.

Those States which follow the Clear and Convincing

rule for physicians seem not to have any enforcement

problems, and the State of Washington is not impaired in

its discipline of Attorneys when operating under the

Clear and Convincing Rule.

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4. The Petition Does Not Raise an Important National

Question.

The Petitioner argued on Page 27, that to follow the

clear and convincing rule is going to declare that twenty five

jurisdictions are applying a constitutionally impermissible

rule. This does not follow because there is no showing that

due process is not satisfied by other means in those States

such as better statutorily created procedural safeguards.

If the Constitution limits the states’ freedom to act, who

is better equipped to deal with that question than the

Courts?

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CONCLUSION

The Opinion of the Washington State Supreme Court,

which the Petitioner seeks to have overturned, gives recogni-

tion to the need for flexibility in applying due process princi-

ples. It recognizes that between the two poles of proof by a

simple preponderance and proof beyond a reasonable doubt

there lies a body of cases, the facts of which, demand due

process principles be applied in the form of a burden of

proof by clear and convincing evidence. The Washington

State Supreme Court has also provided the guidelines for

determining what facts dictate when clear and convincing

evidence must be presented by the prosecuting party.

Respectfully submitted,

Rap A. ALFIERI, wsba 496

Attorney for the Respondent

211-Fourteenth Avenue East

Seattle, WA 98112-5299

206-324-7117

January 31, 2002