Ongom v. Dept. of Health

148 P.3d 1029

159 Wn.2d 132

Alice ONGOM, Petitioner, v. STATE of Washington, DEPARTMENT OF HEALTH, OFFICE OF PROFESSIONAL STANDARDS, Respondent.

No. 76618-5.

Supreme Court of Washington, En Banc.

December 14, 2006.

Claudia Kilbreath, Short Cressman & Burgess PLLC, Seattle, WA, for Petitioner.

Christopher George Swanson, Washington State Dept of Health, Maureen A. Hart, Attorney at Law, Carol A. Murphy, Attorney General's Office, Olympia, WA, for Respondent.

SANDERS, J.

¶ 1 By a mere preponderance of the evidence in an administrative hearing, Alice Ongom's nursing assistant's registration was suspended for alleged abuse of a patient. Ongom appealed to the Superior Court which affirmed, as did the Court of Appeals. Ongom v. Dep't of Health, 124 Wash.App. 935, 104 P.3d 29 (2005). We granted review and reverse, holding due process requires clear, cogent, and convincing proof.

FACTS

¶ 2 Fleeing Africa as a refugee, Alice Ongom escaped to the United States with her family making her new home in Washington. The State then registered her to practice as a nursing assistant in July 2000. By February 2001 Ms. Ongom was employed in that capacity at the Woodmark Retirement Home in Federal Way.

¶ 3 On the evening of February 22, 2001, an incident transpired between Ms. Ongom and an Alzheimer's resident. As a result the nursing assistant program of the Department of Health issued a statement of charges against Ms. Ongom, alleging that she engaged in unprofessional conduct in violation of RCW 18.130.180(24). She was also criminally charged with fourth degree assault.¹

¶ 4 Thereafter, on April 4, 2002, the Department conducted an administrative hearing to consider allegations of unprofessional conduct. Three witnesses testified: coworker Rebecca Bristlin; Woodmark program director Jocelyn Umagat, LPN; and respondent Ongom. The State was represented by the attorney general; however, Ms. Ongom, who speaks English only as her second language, represented herself pro se. Besides considering the testimony of these three witnesses, the health law judge also considered various documents including a prior written statement by Ms. Ongom and an affidavit of Franciska Chmielewski, another coworker who witnessed the incident. Chmielewski was unable to attend the hearing but generally supported Ms. Ongom's version of the events. As acknowledged by the hearing officer, the evidence was in serious conflict.

¶ 5 Bristlin claimed she observed respondent Ongom pick up a cup or dish from the floor and throw it at an Alzheimer's resident, slap the resident on the hands several times, and kick her on the left ankle or lower leg. However, Ms. Bristlin admitted she did not report the incident to management until the following day, contrary to a policy which required immediate reporting of such events.

¶ 6 Respondent Ongom testified that this particular resident had been aggressively violent toward her since the very first day of her employment and that she had frequently accosted her with racist remarks on various occasions, including the evening in question.² Nonetheless respondent testified that she held no ill will toward the resident as she understood the resident to be sick and not responsible for her actions. Respondent testified that the resident threw silverware and/or dishes at her that evening and that she (Ongom) suffered an injury to her shoulder as a result of being hit by a dish thrown by the resident. Ms. Ongom denied ever picking up the dish although she testified that she did take a plate from the resident to prevent further injury to herself or others, receiving no help from other caregivers in the room.

¶ 7 Ms. Chmielewski supported Ongom's version of the events, stating under oath that she saw the resident throw a glass, that she did not see Ms. Ongom throw anything at the resident, and that the resident "was well-known to staff for her aggressive behavior toward both staff and other residents. She sometimes kicked [] staff, and I have learned she assaulted another resident." Clerk's Papers (CP) at 173.

¶ 8 Finding that the program proved its case by no more than a mere preponderance, the hearing officer concluded the State had not proved its case by clear and convincing evidence. He found:

The Presiding Officer concludes the Program did not prove its case by clear and convincing evidence. The Presiding Officer concludes this is so because there are conflicting witness statements whether the Respondent touched Resident A or threw anything at Resident A. Additionally, there was a period of time between the time the incident in question, and when Resident A's injury was diagnosed or assessed. Finally, the[re] was evidence to show that Resident A was combative and known to kick out on her own. While the evidence provided by the Program is of the type that "reasonably prudent persons are accustomed to rely upon in the conduct of their affairs," (see WAC 246-10-606), it is not of the type that is "highly probable" (see State Farm Fire & Cas. Co. v. Huynh, 92 Wash.App. 454, 962 P.2d 854 (1998)), following a review and consideration of all of the evidence in the record.

CP at 112 (Findings of Fact, Conclusions of Law and Final Order). Nevertheless, the presiding officer suspended Ongom's license because WAC 246-10-606 requires only proof by a preponderance of the evidence and WAC 246-10-602(3)(c) provides, "The presiding officer shall: . . . (c) [n]ot declare any statute or rule invalid."

¶ 9 After concluding a preponderance of the evidence supported the charge of unprofessional conduct and further concluding the violation was "moderate in nature," CP at 111, the presiding officer suspended Ms. Ongom's license for 24 months. The presiding officer also ordered her to complete the Healthcare Integrity and Protection Data Bank Reporting Form (section 1128E of the Social Security Act, 42 U.S.C. § 1320a-7e), id., and promptly return the form to the Nursing Assistant Program, thereby establishing a permanent public record of the disciplinary measure.

¶ 10 The nursing home fired Ongom immediately after the incident in question. Ongom testified that "since that time I did go to school, I've been suffering without job, I can't get a job. I got one one place and I work for a day and then they stop me." CP at 242 (hearing transcript, docket no. 01-07-B-1031 NA (4/4/02)). "And the job I don't get, I came here as a refugee and I am being put this kind of thing, it really made me very, feel very bad." Id.

ANALYSIS

¶ 11 We review this administrative decision pursuant to the Administrative Procedure Act, chapter 34.05 RCW, and apply the "error of law" standard of RCW 34.05.570(3)(d) to the agency's legal conclusions. Haley v. Med. Disciplinary Bd., 117 Wash.2d 720, 728, 818 P.2d 1062 (1991).

¶ 12 We must determine whether proof by a preponderance of the evidence in a professional license disciplinary proceeding satisfies due process. For the reasons expressed in Bang Nguyen v. Department of Health, 144 Wash.2d 516, 29 P.3d 689 (2001),³ we conclude that due process requires clear and convincing proof. Accord Miss. State Bd. of Nursing v. Wilson, 624 So.2d 485, 493 (Miss.1993) ("The standard of proof required for a decision of the Board of Nursing in cases involving fraud or conduct deemed quasi-criminal in nature is clear and convincing evidence."); Hogan v. Miss. Bd. of Nursing, 457 So.2d 931, 934 (Miss.1984). Accordingly, we reverse and dismiss.

¶ 13 As stated, the identical issue was resolved in our recent Nguyen decision.⁴ Dr. Nguyen was disciplined under the same statute (RCW 18.130.180) as was Ms. Ongom. As is always the case, there are certain factual and technical differences between the proceedings; however, we conclude the differences do not constitute a distinction justifying disparate treatment for Ms. Ongom under the generalized considerations set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).⁵

¶ 14 We noted in Nguyen that "[a] professional disciplinary proceeding subjects a medical doctor to grave concerns which include the potential loss of patients, diminished reputation, and professional dishonor." Nguyen, 144 Wash.2d at 521, 29 P.3d 689. Although undoubtedly a medical license is much more difficult to obtain than a registration to practice as a nursing assistant, each constitutes a lawful entitlement to practice one's chosen profession. We cannot say Ms. Ongom's interest in earning a living as a nursing assistant is any less valuable to her than Dr. Nguyen's interest in pursuing his career as a medical doctor. See Nims v. Bd. of Prof'l Eng'rs & Land Surveyors, 113 Wash.App. 499, 505, 53 P.3d 52 (2002) ("[T]he time and money spent on training has so little bearing on disciplinary proceedings that it cannot, by itself, justify a higher or lower burden of persuasion."). We reject the Court of Appeals conclusion that "the property interest in a nursing assistant's license, while not insignificant, is considerably more limited than the property interest in a license to practice medicine." Ongom, 124 Wash. App. at 944, 104 P.3d 29. The licenses may be different, but nurses and medical doctors have an identical property interest in licenses that authorize them to practice their respective professions.

¶ 15 We also recognized Dr. Nguyen has a liberty interest in his license to preserve his professional reputation. Nguyen, 144 Wash.2d at 527, 29 P.3d 689. So too does Ms. Ongom. True, Ms. Ongom's employment is probably much less financially rewarding than that of a medical doctor, but it is nevertheless all she has, and she is at least equally dependent upon her professional reputation for employment. Here a notice of her discipline for allegedly abusing a patient was posted in a national register by order of the hearing examiner, accessible by all the public as well as future prospective employers. There is no reason to believe that the damage to her professional reputation in...