Hearings

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A

ADJUDICATIVE PROCEEDINGS
Dismissal for lack of Timeliness

Respondent’s request for dismissal of the Statement of Charges, based on his claim that the Department failed to hold the adjudicative hearing in a timely manner, is an inappropriate remedy.  The Department has alleged that the Respondent committed serious acts of unprofessional conduct and the purpose of the Uniform Disciplinary Act is to assure the public of professional competence for their protection.  To conclude that the scheduling requirements of the APA are mandatory and jurisdictional would deprive the Commission of the ability to enforce the Uniform Disciplinary Act for the protection of the public.
Patrick l. Vanquathem, 94-03-091CD (Chiropractic; July 6, 1994)

            Timeliness
            RCW 34.05.413

The actual hearing does not need to take place within 90 days of receipt of a request for an adjudicative proceeding.  The proceeding needs to be commenced within 90 days, however.  RCW 34.05.413(5) clearly provides that an adjudicative proceeding commences when the agency or presiding officer notifies a party that a prehearing conference, hearing, or other stage of an adjudicative proceeding will be conducted.
Patrick l. Vanquathem, 94-03-091CD (Chiropractic; July 6, 1994)

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B

C

D

DUE PROCESS
            Application to administrative hearings

Due process involves principles of fundamental fairness and justice.  The application of due process in a particular case considers the competing interests at stake under the circumstances of each case.  Among the competing interests at stake in a medical disciplinary action are the government’s interest in protecting the public health and well-being, the physician’s interest in retaining a license to practice medicine and their mutual interest in avoiding an erroneous determination of the charges.  The respondent’s assertions of substantial prejudice because he must defend against the Board’s actions are for the most part speculative and due process is not denied in that setting.
Herbert Wimberger, 91-12-0017MD (Medical; July 7, 1993).

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E

EXPERT WITNESSES
            Immunity from Disciplinary Action

Although the respondent is immune from subsequent legal proceedings arising from any testimony or statements made by him preliminary to or in the course of judicial proceedings, the immunity afforded expert witnesses does not protect an expert from disciplinary action for dishonest statements or misrepresentations concerning the status of the expert’s professional license of credentials. The chilling effect of subjecting experts to threatened litigation and liability for their expert opinions does not exist if a physician is not rendering an expert opinion but is merely testifying as to facts personal to the expert.
Elliot Oppenheim, 91-03-0068 (Medical; October 9, 1992).

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F

FINAL ORDERS
            Petition for Reconsideration
            Time for Filing

Within 10 days of service of a final order, any party may file a petition for reconsideration, stating the specific grounds upon which relief is requested. The statutory time period for filing a petition for reconsideration of a final order is a jurisdictional requirement that cannot be waived.
Gregory Jantz, 09-07-31-065 (Counseling; June 28, 1993).

            Request for Clarification

While the Administrative Procedure Act does not specifically provide for a request for clarification of a final order, the decision-maker should have an opportunity to clarify unclear or ambiguous terms in order for the parties to implement the decision.  A request should be made in a reasonable period of time after issuance of the final order.  Where Respondent’s request for an extension of time in which to file a request for clarification of the terms of the final order was made within a 14 days after issuance of the final order, the extension should be granted. The Respondent’s request for clarification must be limited to, and for the purposes of, clarifying an ambiguity in the terms of the order and not for purposes of modifying, amending or changing the decision.  Respondent’s request for clarification must specify the terms of the order which are unclear or ambiguous.
Gregory Jantz, 09-07-31-065 (Counseling; June 28, 1993).

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G

H

I

J

K

L

LACHES
Application to Disciplinary Actions

The doctrine of laches (which indicates an action may be barred by undue delay) does not apply.  Washington courts have not specifically addressed whether laches can be used to bar a medical disciplinary action brought by the state, but equitable defenses are generally not available against the government if their application would encroach upon governmental sovereignty, or interfere with proper discharge governmental duties, curtail an exercise of police power or violate public policy. Citing Finch v. Mathews, 74 Wn.2d. 161 (1968).
Herbert Wimberger, 91-12-0017MD (Medical; July 7, 1993).

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M

N

O

P

Q

R

S

T

U

UNPROFESSIONAL CONDUCT
            Activities as a Witness
            RCW 18.130.180(1)

Where respondent may have made dishonest statements when testifying as a witness, such conduct may indicate an unfitness to practice medicine if it raises a reasonable apprehension that the physician may abuse the trust inherent in the professional status of the profession. RCW 18.130.180(1) does not require that the improper conduct occur within the practice of medicine, but only that it relate to the practice of medicine.
Elliot Oppenheim, 91-03-0068 (Medical; October 9, 1992).

            Acts Prior to 1975

When the legislature repeals a statute and simultaneously enacts the same statutory provisions, the repeal is only nominal since rights and liabilities are not affected.  The provisions related to moral conduct are substantially similar in the 1975 and 1963 acts.  The 1975 legislation not only carried forward the 1963 Act’s essential prohibition against the “repeated acts of immorality,” it also expanded the prohibition to include a single act of moral turpitude, corruption or dishonesty.
Herbert Wimberger, 91-12-0017MD (Medical; July 7, 1993).

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V

W

X

Y

Z

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