            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                                     )              UNPUBLISHED OPINION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




                                              2
No. 78910-4-1/3

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



                                              3
No. 78910-4-1/4


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."


                                                4
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.




                                                5
No. 78910-4-1/6

       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.



                                             6
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.




                                             7
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



                                              8
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



                                            9
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.


                                            10
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).




                                             11
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,



                                             12
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."




                                            13
No. 78910-4-1/14

       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.




                                            14
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




                                           15
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.


                                            16
No. 78910-4-1/17

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?


                                             17
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




                                            18
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.



                                                19
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.


                                                      20
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.


                                              21
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."


                                                       22
No. 78910-4-1/23

        We affirm the Amended Findings of Fact, Conclusions of Law, and Final Order.12




WE CONCUR:
                                                        ,--,g4,,,Q,,,,7




        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
