                                                                                                                             FILED _
                                                                                                                             OF iF PEALS


                                                                                                               2014 FEB 20         AN 0: 25




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                          DIVISION II

LLOYD V.E. OLSON, M.D.,                                                                       No. 43552 -7 -II


                                         Petitioner,


          V.




STATE OF WASHINGTON DEPARTMENT                                                      UNPUBLISHED OPINION
OF HEALTH MEDICAL QUALITY
ASSURANCE COMMISSION, an agency of
the State of Washington,




          JOHANSON, A.C. J. —              Dr. Lloyd Olson appeals the State Department of Health Medical

Quality Assurance Commission' s ( Commission) final order suspending his medical license for
unprofessional           conduct.   Dr. Olson         argues    that ( 1)    the Commission erred by failing to enter

findings       as   to   all material   facts   and   credibility determinations; ( 2) the Commission'                      s"   charge




first,   ask questions second"          policy deprived him          of     due   process (   Br.   of   Appellant   at   41); and ( 3)


the Commission' s unprofessional conduct conclusions misapplied the law and are unsupported


by   factual findings. In         addition,     he   assigns error    to    several   findings      of   fact. Because Dr. Olson


does not show that the Commission entered insufficient findings regarding material facts or

witness        credibility, deprived him             of   due   process      or    misapplied       the    law, and because the


challenged          findings   are supported    by    substantial evidence, we affirm.
No. 43552 -7 -II



                                                              FACTS


                                                      SUBSTANTIVE FACTS


          In April 2010, Dr. Olson was an anesthesiologist working for Premier Anesthesia group
                                                                                   2
and    providing     anesthesia      services'    in Richland, Washington.              On April 1,     2010, Dr. John


Droesch performed four surgeries and Dr. Olson was the anesthesiologist for these surgeries.


Jamie Lyn Roy was Dr. Droesch' s surgical technician assistant. Dr. Droesch' s second surgery of

the day was on Patient A and his fourth surgery of the day was on Patient B.3
          In the operating room, after Dr. Olson put Patient A under anesthetic to prepare her for

surgery, Roy was standing at the foot of Patient A' s operating bed while waiting for the surgery

to begin.       Roy heard      Dr. Olson say, "` I             wonder   if this   patient   has breast implants. "'     6


Administrative Record ( AR)              at   3197.   Roy then saw Dr. Olson reach forward with both hands to

grab     each   of   Patient A'      s   breasts in     each    of   his hands    and    start   to " fondle   her breasts


inappropriately"      for   a minute and a       half to two     minutes.   6 AR   at   3197.    Later that day, Roy saw

Dr. Olson touch Patient B in a similar way. Patient B was also scheduled to have surgery on her

chest area, and it was apparent that she had breast implants. After Dr. Olson put Patient B under

anesthetic, Roy was standing at the foot of Patient B' s operating bed and heard Dr. Olson say

that Patient B had breast implants and then she saw him reach down with both hands and grab




    An anesthesiologist is a physician who administers anesthetic agents to patients to cause partial
or complete loss of consciousness during surgical procedures.

2 Some facts come from unchallenged findings of fact from the Commission' s findings of fact,
conclusions of law, and final order.   Unchallenged findings are verities on appeal. Hilltop
Terrace Homeowner' s Ass' n v. Island County, 126 Wn.2d 22, 30, 891 P. 2d 29 ( 1995).
3
    The Commission          used "   Patient A"       and "   Patient B" for confidentiality       purposes.    We do the
 same.




                                                                 V
No. 43552 -7 -II



each of Patient B' s breasts in each hand and cup and massage her breasts for a minute to two

minutes. Each time, Roy was shocked but did not know what to do.

        The next day, Roy assisted in surgeries for Dr. Alexander Ortolano and Dr. Richard

Lorenzo, and Dr. Olson was the anesthesiologist. The doctors were performing vaginal surgeries

on two patients and during each of the surgeries, Roy saw Dr. Olson come to the foot of the

operating table and watch the surgeries. Roy felt that the approximately 10 minutes that he spent

watching   was   inappropriate   and "   creepy" for     an anesthesiologist       to   do. 6 AR   at   3238.    That day,

Roy told another anesthesiologist, Dr. Robin Kloth, about Dr. Olson' s unprofessional conduct.

Dr. Kloth then reported the allegations to her supervisors at Premier who contacted Dr. Olson.


Dr. Olson admitted that he had touched the patients' breasts to determine if they had breast

implants. Dr. Olson later resigned his position in lieu of termination.

                       THE COMMISSION' S INVESTIGATION AND ADJUDICATION


        Dr. Droesch told Patient A         and      Patient B   about    the   allegations.   Patient A reported the


allegations to the Richland Police Department who assigned Detective Roy Shepherd to

investigate the case. Dr.. Olson admitted to Detective Shepherd that - e had touched the patients - - -
                                                                     h

because he    was   a physician entitled       to   examine     the   patients.   Detective Shepherd reported the


allegations   to the. Commission       who     assigned    Denise Gruchalla to investigate.               She reviewed


Roy' s complaint, the patients' medical records, interviewed the parties involved, and submitted

her findings to the Commission.


        In May 2010, the Commission issued its statement of charges, and ex parte order of

summary    suspension    to Dr. Olson, alleging that           he   violated   RCW 18. 130. 180( 1), (     7), ( 24),    and




WAC 246- 919- 630( 2)(    e)   and   finding   that he   posed a      danger to any      patients under    his   care.   Dr.


Olson answered the allegations, requested a show cause hearing and prompt adjudicative

                                                           3
No. 43552 -7 -II



hearing, and filed a declaration denying any inappropriate conduct and asserting that he had

touched the      patients'    upper chest wall to confirm whether they had breast implants out of

concern    for their identities.           On May 25, the Commission held a show cause hearing and

confirmed its earlier decision that Dr. Olson was an immediate threat to the public health, safety,

or welfare and left its suspension in place.


          In July, a full hearing was held in front of a health law judge ( HLJ) and members of the

Commission'      s panel.     The HLJ heard testimony from Roy, another nurse, Detective Shepherd,

Gruchalla, Kadlec management personnel, and other doctors including Dr. Kloth, Dr. Droesch,
             4
Dr. Olson,       Dr.   Dheeraj     Ahuja, Dr. Scott Kennard (             as an   expert witness),   and another expert



witness    called      by   Dr. Olson.         In September, the Commission entered- its findings of fact,

conclusions of      law,    and   final   order.   The Commission determined that the State had proved with


clear and convincing evidence that Dr. Olson committed unprofessional conduct under RCW

18. 130. 180( 7), ( 24),     and    WAC 246 -919- 630( 2).             The Commission imposed Tier B sanctions


under     WAC       246 -16 -820      and      WAC     246 -16 -830       because    Dr.   Olson had no     appropriate


examination- or treatment reason to touch the- patients' breasts and because his conduct was

 forceful   contact,"       since the patients were each under anesthesia, unconscious, and unable to


give   informed     consent.      Clerk'   s   Papers ( CP)   at   282.   The Commission ordered that Dr. Olson' s


license remain suspended but that he could apply for reinstatement after participating in

educational programs and evaluations.




4 In addition to denying misconduct and asserting that he touched the patients to confirm their
identities, Dr. Olson testified that there was a Patient 3, who was having a mastectomy surgery
on the same day as Patient A' s and Patient B' s surgeries and that he had confused Patient 3 with
Patient A when he had previously admitted to touching her chest area.

                                                                   M
No. 43552 -7 -II


          Dr. Olson       moved      the HLJ    for   reconsideration, which was           denied. He also petitioned the


superior court for review and the superior court affirmed the Commission. Dr. Olson appeals.

                                                          DISCUSSION


                                                      STANDARD OF REVIEW


          The Uniform          Disciplinary      Act ( Act),      chapter    18. 130 RCW,      was enacted         to " assure the


public    of   the adequacy          of professional         competence      and    conduct   in the     healing    arts."    RCW


18. 130. 010.        The Washington Administrative Procedure Act ( APA), chapter 34. 05 RCW,


governs    judicial      review of      disciplinary     proceedings        under   the Act.   RCW 18. 130. 100.             As the


party challenging the Commission' s decision, Dr. Olson bears the burden of establishing the

decision is invalid          under one or      more     of   the APA criteria.'        RCW 34. 05. 570( 1)(      a).   On review,


we sit in the same position as the superior court and apply the APA 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).


          Under RCW 35. 05. 570( 3),              we will reverse          only ( 1)   if we determine the administrative


decision is- based - on an -error-              of -law,--     2)---if
                                                               (         we determine-the administrative decision is

unsupported         by   substantial evidence, (        3) if we determine the administrative decision is arbitrary

or capricious, (      4) if   we     determine the      administrative       decision   violates   the   constitution, (     5) if we


determine the            administrative       decision is beyond statutory authority, ( 6)                   when the agency



  Dr. Olson argues that we should review the Commission' s findings under a " highly probable"
standard       to   ensure    that   clear,   cogent,   and    convincing      evidence     support      them.     But Dr. Olson

 seems to confuse the standard of proof at the agency level with our standard of review on appeal.
Dr. Olson is correct that the Supreme Court in Bang D. Nguyen v. Department of Health,
Medical      Quality Assurance Commission, 144 Wn.2d 516, 518, 29 P. 3d 689 ( 2001), cert. denied,
 535   U. S. 904 ( 2002), required the clear, cogent, and convincing standard of proof for the agency,
 and here that is clearly the standard that the Commission applied, but Nguyen did not address the
 standard of appellate review, which is established by the APA.

                                                                     5
No. 43552 -7 -II



employs        improper      procedures, (       7)    when the agency has not decided all issues requiring

resolution, (       8) when a motion for disqualification should have been granted, or ( 9) when the

                                                                              6
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).            But we accord substantial weight to an agency' s interpretation of the law it

administers when it is within the agency' s expertise. Haley, 117 Wn.2d at 728.

          The Commission 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


Discipline of Brown, 94 Wn.                    App.   7, 13 - 14, 972 P. 2d 101 ( 1998), review denied, 138 Wn.2d


1010 ( 1999).            We will not weigh conflicting evidence or substitute our judgment regarding

witness      credibility for that     of   the Commission.              Davis      v.   Dep' t   of Labor & Indus., 94 Wn.2d 119,


124, 615 P. 2d 1279 ( 1980).               A medical disciplinary proceeding is considered quasi- criminal, so

the standard of proof at the agency level is that findings of fact must be proved by clear, cogent,

and   convincing         evidence    below..      Bang D. Nguyen v. Dept of Health, Med. Quality Assurance

Comm'     n;   144 Wn.2d 516, 529,- 29 P. 3d 689 ( 2001)                           cent.- denied,   535 U.S. 904 ( 2002).      But on


appeal, we review the Commission' s findings of fact like any other proceeding under the APA

for substantial evidence. Ancier v. Dep' t of Health, Med. Quality Assurance Comm' n, 140 Wn.

App.    564, 572, 166 P. 3d 829 ( 2007).                    We will determine the evidence is substantial when it is


sufficient     to   persuade a reasonable person of                 the truth           or correctness of   the   order.   Ancier, 140



6
  Here, citing RCW 34. 05. 570( 3), Dr. Olson asserts that ( 1) the Commission' s order violates
constitutional provisions on its face or as applied; ( 2) the Commission has engaged in unlawful

procedure       or   decision -
                              making           process,      or   has failed to follow             a prescribed procedure; (    3) the
Commission has erroneously interpreted or                          applied         the law; ( 4)    the order is not supported by
substantial evidence when viewed in light                          of   the       whole. record; (    5) the Commission has not
decided all issues requiring resolution; and ( 6) the order is arbitrary and capricious.

                                                                        rel
No. 43552 -7 -II



Wn.    App.    at   572 -73.    We take the Commission' s evidence as true and draw all inferences in the


Commission' s favor. Ancier, 140 Wn.                       App.   at   573.        Unchallenged agency factual findings are

verities on appeal. Hilltop Terrace Homeowner' s Ass' n v. Island County, 126 Wn.2d 22, 30, 891

P. 2d 29 ( 1995).        After determining whether substantial evidence supports findings of fact, we

determine      whether     the findings in turn            support     the   conclusions        of   law    and   judgment. Nguyen,


144 Wn.2d at 530.


                                              CHALLENGED FINDINGS OF FACT


         Dr. Olson        challenges        several    findings        of   fact.    All of the findings he challenges are


supported      by    substantial evidence.          Findings of fact 1. 17, 1. 25, and 1. 26 are partially supported

by    unchallenged       findings     of   fact,   which are verities on appeal.                Hilltop Terrace, 126 Wn.2d at

30.    The remaining challenged findings are supported by testimony, deposition testimony, and

other record filings.


                                                      1.   Roy' s TESTIMONY


            Findings of fact 1. 13, 1. 17, 1. 22, 1. 24, 1. 26, and 1. 32 are supported by Roy' s testimony.

These findings relate- to -Dr Olson' s touching of Patient A and -Patient B on April 1, 2010, that

Dr. Olson did not raise any question regarding either patient' s identity during the time -out

process prior to their surgeries, and Dr. Olson' s prolonged viewing of the two vaginal surgeries

on    April 2, 2010.      The Commission found Roy' s testimony credible and we will not disturb that

finding.       Roy      assisted     on    Patient A' s     mediport         surgery       on   April      1,   20.10, as the surgical


technician and Dr. Olson was the                   anesthesiologist.          After Patient A was asleep, she stood at the

foot   of   Patient A'    s    bed   with   an unobstructed view of                 Dr. Olson        when       she   heard him say, "` I


wonder       if this   patient   has breast implants. "'          6 AR        at   3197.   Then she saw him reach with both




                                                                       7
No. 43552 -7 -II



hands to grab each of Patient A' s breasts and start to " fondle her breasts inappropriately" for a

minute and a half to two minutes. 6 AR at 3197.


          She also testified about Patient B, including that Patient B had breast implants; she

assisted in Patient B' s wire localized biopsy procedure; she had an unobstructed view of Patient

B laying on the operating table; and she saw Dr. Olson reach down to place each of his hands

over each of Patient B' s breasts and touch her breasts in a massaging motion for one to two

minutes.



          And   on    April 2,          2010,    she   again    assisted      in   surgeries   where    Dr. Olson was the


anesthesiologist on          two   patients     having    vaginal     surgeries.     Dr. Olson came to the foot of the


operating table, stood next to Roy, and watched the surgeries. Roy felt that the approximately 10

minutes    that he   spent    watching         was   inappropriate    and "   creepy."    6 AR   at   3238.   She reported Dr.


Olson'    s conduct   to Dr. Kloth that           day. Roy also testified about the time -out process to check a

patient' s identity before moving forward with surgery.

                2. DETECTIVE' S SHEPHERD' S AND DETECTIVE HANSENS' S TESTIMONY


          Detective Shepherd' s and Detective John - Hansens' s testimony support challenged -

finding of fact 1. 14, which relates to Dr. Olson' s admission to Detective Shepherd that he

touched Patient A'       s   breasts to        confirm   her   identity. Detective Shepherd interviewed Dr. Olson

by phone, he put Dr. Olson on speakerphone, and Detective Hansens overheard part of the

conversation.        Dr. Olson told Detective Shepherd that he touched the patients because he was a

physician entitled to do his own examination and that he did so out of curiosity.

                                   3.   DR. OLSON' S DECLARATION AND TESTIMONY


          Dr. Olson' s declaration to the Commission supports findings of fact 1. 14, 1. 17, 1. 24, and

 1. 25.   These findings       relate     to   his touching     of   Patient A, his      admission     to Detective Shepherd
No. 43552 -7 -II



that he touched Patient A, that he did not raise the issue of Patient A' s identity during the time-

out process prior to her surgery, that he touched Patient B' s breasts, and that there was no

medical reason      for him to do        so.    In his declaration, he admitted that he pressed on Patient A' s


and Patient B' s upper chest to determine if they had breast implants and to confirm their

identities.    He also later testified about a Patient 3 that he had confused with Patient A, that he


did   not raise   any   questions with     Patient A         about   her   identity,     and   that   he touched Patient B. The


Commission used its experience and specialized knowledge to determine that the touching that

Dr. Olson admitted to would not have made it possible to determine whether Patient B had

subpectoral    breast implants. Brown, 94 Wn.                   App.     at   13 - 14.   Thus, the Commission determined


that part of Dr. Olson' s testimony was not credible and we will not disturb that finding.

                                               4. DR. KENNARD' S TESTIMONY


         Dr. Kennard' s testimony supports challenged findings of fact 1. 16, 1. 17, 1. 24, 1. 25, and

1. 26. These findings relate to the fact that Dr. Olson had no medical reason to touch Patient A' s


or Patient B' s breasts, that Dr. Olson had other ways to verify their respective identities, and that

he did not     raise    the issue   during      either patient' s time- out process             before surgery.    Dr. Kennard - -


testified that the only reason an anesthesiologist would have to touch Patient A' s breasts would

be while placing monitor or electrocardiogram patches and that the presence of implants would

have    no    effect    on    the   anesthesiologist' s        job.        Dr. Kennard also testified about what an


anesthesiologist' s job was as far as identifying patients and the appropriate ways that an

anesthesiologist        can    confirm    a     patient' s    identity      without      touching her.        According to Dr.

Kennard, hospitals never use physical characteristics to identify patients, so whether the patients

had breast implants would not be helpful in verifying identities, and there was no medical reason

for an anesthesiologist to touch a patient' s breasts.


                                                                     9
No. 43552 -7 -II



                                         5. DR. KLOTH' S AND DR. AHUJA' S TESTIMONY


          Dr.     Kloth'   s       and    Dr.   Ahuja' s testimony that there is no medical reason for an

anesthesiologist to touch a patient' s breasts support challenged findings of fact 1. 16, 1. 24, and

1. 26.    These findings relate to Dr. Olson' s lack of medical justification for touching Patient A' s

and Patient B' s breasts.


                                                  6. DR. DROESCH' S TESTIMONY


          Dr. Droesch'         s   testimony      supports challenged   findings      of   fact 1. 17, 1. 24,   and   1. 25. These


findings relate to Dr. Olson' s failure to raise the issue of the patient' s identities prior to their


respective surgeries, that Patient B' s breast implants did not affect Dr. Olson' s ability to conduct

his duties as an anesthesiologist and alternative ways that Dr. Olson could have verified the

patients' respective identities. Dr. Droesch testified that Dr. Olson did not raise any questions of

Patient A' s or Patient B' s identity during the time -out process or while they were getting ready

for surgery. He also testified about the type of implants that Patient B had and that the implants


were located under the pectoralis muscle, breast tissue, and skin.

                     7. DR. LORENZO' S AND DR. ORTOLANO' S DEPOSITION TESTIMONY


           Dr. Lorenzo' s and Dr. Ortolano' s deposition testimony support challenged finding of fact

1. 29    which relates         to Dr. Olson' s      prolonged   viewing    of   the   vaginal surgeries on        April 2.   Both


testified that Dr. Olson was the anesthesiologist for their surgeries on April 2, 2010, and that Dr.

Olson came from the head of the operating bed where the anesthesia doctor is typically located to

the   foot   of   the bed       during     the surgery.    Dr. Ortolano testified that Dr. Olson spent more time


observing these        surgeries           than   would   be typical for   an    anesthesiologist       to do.        Dr. Ortolano


remembered thinking that Dr. Olson' s behavior was unusual and odd, while Dr. Lorenzo did not.



                                                                 10
No. 43552 -7 -II



                                   COMMISSION' S CREDIBILITY DETERMINATIONS


         First, Dr. Olson argues that the Commission erred as a matter of law by not entering

proper   findings      as    to    all    material          facts   and      credibility    determinations,        alleging that the

Commission'     s"    complete           lack    of        sufficient     findings"     makes the       Commission' s          decision


 indecipherable,      unsupported,             and    insupportable."            Br.   of   Appellant   at   37.     Dr. Olson then


discusses the testimony from several witnesses which he alleges contradict Roy' s testimony and

argues   that the Commission              should       have     entered a      credibility    finding   as   to   each witness.      The


Commission did not err because it entered sufficient findings on the credibility of the crucial

witnesses.




         Under the APA, the agency must enter findings of fact and conclusions of law on all the

material    issues   of   fact    and    law.    Yakima Police Patrolmen' s Ass' n v. City of Yakima, 153 Wn.

App.   541, 562, 222 P. 3d 1217 ( 2009). RCW 34. 05. 461( 3) provides, in part,


         Initial and final orders shall include a statement of findings and conclusions, and
         the reasons and basis therefor, on all the material issues offact, law, or discretion
         presented on the record, including the remedy or sanction and, if applicable, the
         action taken on a petition for, a stay of effectiveness.       Any findings based
         substantially on credibility of evidence or demeanor- of witnesses shall be so
         identified. Findings set forth in language that is essentially a repetition or
         paraphrase of the relevant provision of law shall be accompanied by a concise and
         explicit statement of the underlying evidence of record to support the findings.

 Emphasis     added.)       The APA does not require that findings and conclusions contain an extensive

analysis.    US West Commc'              ns,   Inc,   v.   Utils. &   Transp. Comm' n, 86 Wn. App. 719, 731, 937 P. 2d

 1326 ( 1997). "                                                    is the test."      US West, 86 Wn.            App.   at   731.   The
                     Adequacy,           not    eloquence,




absence of a finding of fact in favor of the party with the burden of proof as to a disputed issue is

the equivalent of a finding against the party on that issue. Yakima Police, 153 Wn. App. at 562.




                                                                        11
No. 43552 -7 -II



           Here, the Commission'        s   findings       and   conclusions      were       adequate.    The Commission


entered nearly 12 pages of findings of fact, several of which included credibility findings for

witnesses Roy and Dr. Olson. Because the underlying dispute is whether Dr. Olson touched the

patient' s breasts as Roy alleged and Dr. Olson denied, and because no other witness testified to

seeing what Roy saw, the remaining witnesses who testified were simply providing background

material for the Commission to consider and did not present material issues of fact that the


Commission needed to make specific findings on. Dr. Olson fails to cite any case law or further

statute or rule requiring an agency to enter a finding of fact for every witness or every piece of

evidence considered. Dr. Olson does not meet his burden of showing error.

                                            PROCEDURAL DUE PROCESS


           Next, Dr. Olson argues that the Commission' s ". charge first, ask questions second" policy

deprived him        of   due   process and a   fair trial. Br.        of   Appellant   at   41.   We disagree and hold that


Dr. Olson received due process from the filing of the complaint, through the investigation, and

the Commission' s review of the evidence against him.


             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."'                Nguyen, 144 Wn.2d            at    522 - ( internal quotation marks
                                                                                            23


omitted) (    quoting 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, 144 Wn.2d          at   523.      A process satisfies minimum constitutional


requirements when it provides the citizen adequate safeguards in an action instigated against him


by   the   state.   Nguyen, 144 Wn.2d          at   524.   Courts generally apply the Mathews test to determine

whether minimum constitutional due process is met in a variety of procedural situations.

                                                                 12
No. 43552 -7 -II


Nguyen, 144 Wn.2d                at   526 ( citing Mathews, 424 U. S.              at   335).    Under the Mathews test, three


factors     are relevant: "(          1) the   private   interest that      will   be   affected   by   the   official action; (   2) the


risk   of    erroneous         deprivation        of    such    interest through the            procedures       used;   and (   3)    the


governmental interest in the added fiscal and administrative burden that additional process would


entail."      Nguyen, 144 Wn.2d                  at   526.     Due process requires, at a minimum, notice and an


opportunity to be heard.                   Jolley v. Regence BlueShield, 153 Wn. App. 434, 447, 220 P. 3d 1264

 2009), review denied, 168 Wn.2d 1038 ( 2010).


            Applying the Mathews test, we acknowledge that the Commission' s action affected Dr.

Olson' s constitutionally protected property interest in his medical license. Nguyen, 144 Wn.2d at

523.   Therefore, the Commission must apply a clear, cogent, and convincing evidence standard

under Nguyen, 144 Wn.2d at 534. The Commission did so here.

            Next, we examine the risk of erroneous deprivation. The risk of an erroneous deprivation

of   Dr. Olson'        s    medical        license is low      under   the   procedures         the Commission          used   here.    In


addition          to   several    prehearing          procedures,      the    Commission           provided       Dr.    Olson     a   full


administrative hearing. Administrative hearings provide a respondent with - -

            an unbiased tribunal, notice of the proposed action and the grounds asserted for it,
            an opportunity to present reasons why the proposed action should not be taken,
            the right to call witnesses, the right to know the evidence against [ him or] her, the
            right to have a decision based only on the evidence presented, the right to counsel,
            the making of a record of the proceedings, public attendance of the proceedings,
            and judicial review of the proceedings.


Hardee       v.   Dep' t ofSoc. &           Health Servs., 172 Wn.2d 1, 11, 256 P. 3d 339 ( 2011).


            Here, the record supports the conclusion that Dr. Olson was afforded an adequate


administrative             hearing    as   described    by Hardee.      Dr. Olson received notice of the charges against


him from the Commission in                     May     2010.   On May 25, the Commission held a show cause hearing


                                                                       13
No. 43552 -7 -II



to determine whether Dr. Olson posed an immediate threat to the public health, safety, or

welfare.     At the     show        cause     hearing, the Commission considered declarations of several

individuals,    including        declarations          from Dr. Olson               and    his    wife    and   Dr.   Olson' s legal


memorandum.          Then, in July, a full hearing was. held in front of a HLJ and members of the

Commission'     s panel.      The HLJ heard testimony from Roy, another nurse, Detective Shepherd,

Gruchalla, Kadlec management personnel, and other doctors including Dr. Kloth, Dr. Droesch,

Dr. Olson, Dr. Ahuja, Dr. Kennard,                     and   another     expert       witness.       Dr. Olson testified, called


several witnesses, and submitted over 20 exhibits. Dr. Olson fails to show that the procedures he

received "   suffer from inadequacies that make erroneous deprivations readily foreseeable."

Hardee, 172 Wn.2d        at   11.        We hold that the procedures Dr. Olson received sufficiently protected

him from erroneous deprivation of his medical license.

        The third part of the Mathews test considers the governmental interest in the added fiscal

and administrative      burden that          additional processes would entail.                     Nguyen, 144 Wn.2d at 526.


  T] his requirement relates to practical and financial burdens to be imposed upon the

government were it to adopt a possible substitute_procedure for the- one currently employed." -
                                                                                                                                     7
Nguyen, 144 Wn.2d           at   532.       Dr. Olson does         not propose            any    possible   substitute procedures.




7 Dr. Olson makes several allegations that the Commission' s investigator rushed to judgment,
that the Commission' s allegations are based on " flimsy allegations," that he did not receive

medical records from the investigator until a month before the hearing, and that there were
discrepancies between the investigator'                  s report and witnesses'                 statements.    Br. of Appellant at
42.   Dr. Olson then        concludes        that "[   n] one of   this is      consistent with          due   process"   and that we

should " reverse      and   dismiss."         Br.   of   Appellant      at    42.     Dr. Olson does not provide adequate
citations   to the   record as      is   required   by   RAP 10. 3(     a)(   6).    The only record cites he provides are 1
AR 738 -43     and    1 AR 748 -50.            1 AR 738 -42 are pages of Dr. Olson' s June 2010 motion to
dismiss the charges against him filed with the Commission. Dr. Olson' s motion to dismiss is not
evidence of any kind of due process violation. Similarly, 1 AR 748 -50 are pages of a declaration
in support of Dr. Olson' s motion to dismiss from one of Dr. Olson' s attorneys explaining some
of his interactions with the Commission' s investigator and identifying what Dr. Olson believed
                                                                   14
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Instead, Dr. Olson     cites   State   v.   Stephan, 47 Wn.             App.   600, 603, 736 P. 2d 302 ( 1987), State v.


Price, 94 Wn.2d 810, 814, 620 P. 2d 994 ( 1980), and State v. Michielli, 132 Wn.2d 229, 239 -40,


937 P. 2d 587 ( 1997), to        support         his   assertion   that his due      process   rights   were   violated.   He


alleges   that the   Commission         engaged          in   misconduct       and   argues   that   under   CrR 8. 3( b), the


misconduct requires us to dismiss the charges against him. But CrR 8. 3( b) is clearly inapplicable

here as it is a criminal court rule and this is an administrative action, not a superior court action

for   criminal charges.      Similarly,      Stephans, Price,           and   Michielli   are criminal cases.      Dr. Olson


does not explain why criminal cases are applicable to his administrative action other than to say

that a license revocation proceeding is quasi- criminal, citing Nguyen. We do not agree that these

criminal cases     apply to Dr. Olson'           s administrative action        here. We hold that the Commission' s


procedures adequately protected Dr. Olson' s due process interests.

                                  UNPROFESSIONAL CONDUCT CONCLUSIONS


          Last,   Dr. Olson      challenges conclusions of law 2. 4 and 2. 5                          and argues that the


Commission' s unprofessional conduct conclusions misapply the law and are unsupported by

factual findings.-     We disagree. -_ The               Commission properly applied the -law because it was

unnecessary for the Commission to find sexual motivation.

          Conclusion    of   law 2. 4   provides, "           The [ Commission] proved with clear and convincing

evidence that [ Dr. Olson] committed unprofessional conduct as defined in RCW 18. 130. 180( 7)

 and]   WAC 246- 919 -630( 2)."             CP   at    281.   RCW 18. 130. 180( 7) provides that it is unprofessional


conduct to violate any state or federal statute or administrative rule regulating the profession in


to be misleading portions of the investigator' s report. This declaration attempts to point out what
he now argues are due process violations without citation to any relevant legal authority to
 support   his    argument.     But Dr. Olson then wholly fails to cite any administrative cases or
 applicable legal authority to explain why we should determine that he was deprived of due
 process. Dr. Olson does not meet his burden and his argument fails.
                                                                   15
No. 43552 -7 -II



question    including       rules   establishing          professional conduct.             WAC 246- 919 -630( 2) provides that


    a] physician shall not engage in sexual misconduct with a current patient or a key third party.

A   physician engages         in    sexual misconduct when                  he   or she ... (    e) [   t] ouch[ es] breasts ...    for any

purpose other than appropriate examination or treatment."


         Applying the plain language of the RCW and WAC, conclusion of law 2.4 is properly

supported       by   the Commission'              s    findings   of   fact.      Finding of fact 1. 13 says that Dr. Olson

touched Patient A' s breasts and findings of fact 1. 16 and 1. 17 say that Dr. Olson had no

appropriate examination or             treatment           purpose     in   doing     so.   Similarly, findings of fact 1. 22 and

1. 23 say that Dr. Olson touched Patient B' s breasts and findings of fact 1. 24 and 1. 26 say that

Dr. Olson had          no    appropriate              examination      or   treatment       purpose        in   doing   so.     As already

discussed, these findings are supported by substantial evidence in the record and we rely on the

Commission' s experience and specialized knowledge to evaluate the evidence when finding

unprofessional conduct.              RCW 34. 05. 452( 5); WAC 246 -11- 160( 2);                           Brown, 94 Wn. App. at 13 -_

14.    Dr. Olson argues that the Commission erred because there was no evidence that he had

sexual    motivation         in the touching.                But the statutes and WACs - do - not require that the


Commission find sexual motivation and Dr. Olson does not cite any further legal authority for

this   argument.       RCW 18. 130. 180( 7) and WAC 246- 919 -630( 2) require that he not touch breasts


for any     reason      other       than    for        appropriate     examination          or    treatment.        The       Commission' s


conclusion that Dr. Olson touched breasts with no appropriate examination or treatment reason is

supported       by   the Commission'          s       factual findings.        The Commission did not err in conclusion of


law 2. 4.


         Next,       conclusion of         law 2. 5      provides,     in   pertinent part, "       The [ Commission] also proved


with    clear    and    convincing         evidence         that [ Dr.      Olson]      committed          unprofessional       conduct   as
No. 43552 -7 -II



defined in RCW 18. 130. 180( 24)."                   CP    at   281.        RCW 18. 130. 180( 24) provides that it is


unprofessional conduct          to    engage    in "[ a] buse of a client or patient or sexual contact with . client
                                                                                                            a


or patient."      The Commission panel can 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);   Brown, 94 Wn. App. at 13 - 14.

           Dr. Olson does       not explain       how the Commission              erred    in entering this   conclusion.      As


explained regarding conclusion 2.4, the Commission' s determination that Dr. Olson touched the

breasts    of   two   patients was supported        by    substantial evidence.           Further, absent some ambiguity,

we must give words             in   a statute   their   common        meaning.      Heinmiller v. Dep' t of Health, 127

Wn.2d 595, 612, 903 P. 2d 433, 909 P. 2d 1294 ( 1995) ( Pekelis, J. concurring), cent. denied, 518


U. S. 1006 ( 1996).          The    common      meaning    of sexual contact         includes touching        of   breasts.   And


the circumstances found here, especially the duration and nature of Dr. Olson' s touching and the,

absence     of    any legitimate        medical     reason      to    do   so,   support    this   conclusion.      Dr. Olson' s


contention regarding this conclusion is that he did not engage in the touching, but substantial

evidence supports that he did and, with no further argument; we have no reason to hold that the -

Commission erred in its conclusion of law 2. 5.


                                CONCLUSIONS REGARDING THE IMPOSED SANCTION


           Dr. Olson challenges conclusion of law 2. 8( B) and argues that there was no evidence that


he   engaged          in   forceful   contact     under    WAC            246 -16 -830,    making, the imposed sanction

inappropriate. We disagree. The Commission' s imposed sanction was appropriate under Tier B,


of the WACs and RCW 18. 130. 180( 24).




                                                                     17
No. 43552 -7 -II



           Conclusion of law 2. 8( B) provides,


            Dr.      Olson]'   s    unprofessional         conduct     under        RCW         18. 130. 180( 24)     can   be
           adequately addressed by the sanctions contained in Tier B of WAC 246 -16 -830.
           Tier B includes           or   addresses    by a licensee that is considered " forceful
                                                         conduct

           contact." [      Dr. Olson] engaged in forceful contact with Patients A and B because
           of   the   physical      state   of    the   patients.    Both Patients A and B were each under
           anesthesia (that is, unconscious) and therefore unable to give informed consent.


CP   at   282 -83.     Tier B      of   WAC 246 -16 -830          applies   to "[   a] busive unnecessary or forceful contact

or disruptive or demeaning behavior causing or risking moderate mental or physical harm,

including       general     behavior      not   directed   at a specific patient or patients."           It also applies when the


conduct      is "[    s] exual contact, romantic relationship, or sexual statements that risk or result in

patient    harm."       WAC 246 -16 -820.               Dr. Olson' s argument regarding conclusion of law 2. 8( B) is

that the Commission did                   not   show    that he     engaged    in "   severe ...      forceful      contact."    Br. of


Appellant       at    44.    But    under       Tier B, the Commission did                not   have to find "      severe"     forceful


contact.     Severe forceful contact is included in the definition of Tier C conduct which provides


for harsher       punishment        than Tier B         conduct.    WAC 246 -16 -830. The Commission found Tier B


conduct, not         Tier C.       So any argument regarding " severe" contact is simply misplaced. And the

Commission' s conclusion that both patients were under anesthesia and unconscious at the time


of the touching is supported by findings of fact 1. 11 and 1. 21 which are unchallenged findings

and verities on appeal.                 Hilltop   Terrace, 126 Wn.2d          at    30.   With no further argument from Dr.


Olson, we have no reason to hold that the Commission erred in its conclusion of law 2. 8( B).




                                                                      18
No. 43552 -7 -II



         We affirm.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                          ON, A.C. J.
                                                                         Y' .   s
                                                                                    J
We concur:




1Vltitlti, J.




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