### 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.,Petitioner,

V. STATE OF WASHINGTON DEPARTMENT OF HEALTH MEDICAL QUALITY 

### ASSURANCE COMMISSION,an agency of the State ofWashington, No. 43552 - 7 -II

UNPUBLISHED OPINION

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. ofAppellant 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 and providing anesthesia services' in Richland, Washington.2 On April 1, 2010, Dr. John Droesch performed four surgeries and Dr. Olson was the anesthesiologist for these surgeries. 

### Jamie Lyn Roywas Dr.Droesch's surgicaltechnician assistant. Dr. Droesch's second surgeryof 

## thedaywason PatientAandhisfourthsurgeryofthedaywasonPatientB.3 In the operating room, after Dr. Olson put Patient A under anesthetic to prepare her for 

### surgery, Roywas standing atthe foot ofPatient A's operating bedwhile waiting forthe surgery to begin. 

### Roy heard Dr. Olson say, "` I wonder if this patient has breast implants. "' 6 Administrative Record (AR) at 3197. 

### Roythen 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. 

### Laterthat day, Roy saw 

## Dr.Olson touch PatientB in asimilarway. PatientBwas also scheduledto have surgeryonher chest area, and itwas apparentthat shehad 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 

### orcomplete loss ofconsciousness during surgical procedures. 

### 2 Some facts come from unchallenged findings of fact from the Commission's findings offact, conclusions of law, and final order. Unchallenged findings are verities on appeal. 

### Hilltop 

### Terrace Homeowner'sAss'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. VNo. 43552 - 7 -II 

### each of Patient B' s breasts in each hand and cup and massage her breasts for a minute to two minutes. Eachtime, Roywas shocked but did not knowwhatto 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 ofthe surgeries, Roy saw Dr. Olson come to the foot ofthe 

### operatingtable andwatch the surgeries. Royfeltthatthe approximately 10 minutes thathe 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 oftermination. 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 - he had touched the patients - - - 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 3No. 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, orwelfare and left its suspension in place. 

### In July, a full hearing was held in front ofa health lawjudge (HLJ) and members ofthe 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,4 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 PatientA's and Patient B' s surgeries and that he had confused Patient 3 with PatientAwhen he had previously admittedtotouching her chest area. MNo. 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)---ifwe determine-the administrative decision is unsupported 

### by substantial evidence, (

### 3) ifwe 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 

### seemsto confusethe standard ofproofatthe agency level with our standard ofreview 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 ofproofforthe agency, 

## and herethat isclearlythe standardthatthe Commission applied,butNguyen did not addressthe standard ofappellate review,which is established bythe APA. 5No. 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
order is outside the agency' s statutory authority.6 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 administerswhen 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 ofthe Commission. Davis v. 

### Dep' t ofLabor & Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 ( 1980). 

### A medical disciplinary proceeding is considered quasi-criminal, so 

### the standard ofproofatthe agency level is thatfindings offact mustbe proved by clear, cogent,
and convincing evidence below.. 

### Bang D. Nguyen v. Dept ofHealth, Med. QualityAssurance 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 offact like any other proceeding under the APA 

### for substantial evidence. Ancier v. Dep't ofHealth, Med.QualityAssurance 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 orderis arbitrary andcapricious. relNo. 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'sAss'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 offact 1. 13, 1. 17, 1.22, 1. 24, 1.26, and 1. 32 are supported by Roy's testimony. 

### These findingsrelate-to - Dr Olson's touching ofPatient A and - PatientB 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 ofthe two vaginal surgeries

on April 2, 2010. 

### The Commission found Roy'stestimony 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

7No. 43552 - 7 -II 

### hands to grab each ofPatient A's breasts and start to " fondle her breasts inappropriately" for a minute and a halfto 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 ofPatient 

### B laying on the operating table; and she saw Dr. Olson reach down to place each ofhis 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 

## operatingtable, stood nextto Roy,andwatchedthe surgeries. Royfeltthatthe 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 identitybefore 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 andthat he did so out ofcuriosity. 3. DR. OLSON' S DECLARATION AND TESTIMONY Dr. Olson's declaration to the Commission supports findings offact 1. 14, 1. 17, 1. 24, and 1. 25. These findings relate to his touching of Patient A, his admission to Detective ShepherdNo. 43552 - 7 -II 

### that he touched Patient A,that he did not raise the issue ofPatient A's identity during the timeout 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 

### thatpart ofDr. Olson'stestimonywas not credible andwe will not disturb thatfinding. 4. DR. KENNARD' S TESTIMONY 

### Dr. Kennard's testimony supports challenged findings offact 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 otherways to verifytheir respective identities, and that he did not raise the issue 

### during either patient' s time-out process before surgery. Dr. Kennard - - 

### testified thatthe only reason an anesthesiologist would have to touch Patient A's breasts would be while placing monitor or electrocardiogram patches and that the presence ofimplants 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 whetherthe 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. 9No. 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 ofmedical justification fortouching Patient A's and Patient B' s breasts. 6. DR. DROESCH' S TESTIMONY

Dr. Droesch' s testimony supports challenged findings offact 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 abilityto 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 offact 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 fortheir surgeries on April 2, 2010, and that Dr. 

### Olson camefromthe head ofthe operating bedwherethe anesthesiadoctoristypically locatedto 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'sbehaviorwas unusual and odd,while Dr.Lorenzo did not.

10No. 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 enterfindings offact and conclusions oflaw on all the
material issues of fact and law. 

### Yakima Police Patrolmen's Ass'n v. City ofYakima, 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 of fact,law, ordiscretion presented on the record, including the remedy or sanction and, ifapplicable, 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 ofthe relevant provision oflaw shall be accompanied by a concise and 

### explicit statementofthe underlying evidence ofrecordto supportthe 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). " 

### Adequacy, not eloquence, is the test." US West, 86 Wn. 

### App. at 731. The 

## absence ofafinding offact infavorofthe partywiththe burdenofproofastoadisputed issue is the equivalentofafinding againstthe partyonthatissue. Yakima Police, 153 Wn.App. at562.

11No. 43552 - 7 -II Here, the Commission' s findings and conclusions were adequate. The Commission 

### entered nearly 12 pages of findings offact, 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 orfurther 

### statute or rule requiring an agency to enter a finding offact for every witness or every piece of evidence considered. Dr. Olson does not meet his burden ofshowing 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 ofthe complaint, through the investigation, and the Commission' s review ofthe evidence against him.

Procedural due-process imposes constraints on governmental decisions which deprive 

### individuals of liberty or property interests within the meaning ofthe Due Process Clause ofthe Fifth or Fourteenth Amendment."' Nguyen, 144 Wn.2d at 522 - 23 ( internal quotation marks 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. 12No. 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 constitutionallyprotected property interest in his medical license. Nguyen, 144Wn.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 oferroneous deprivation. The risk ofan 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 

### administrativehearing. Administrative hearings provide arespondentwith - - an unbiased tribunal, notice ofthe 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 onthe evidence presented,the rightto counsel, the making of a record ofthe proceedings, public attendance ofthe proceedings, andjudicial review ofthe 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 ofthe charges against him from the Commission in 

### May 2010. 

### On May25, the Commission held ashowcause hearing
13No. 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 ofthe 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 thatthe procedures he
received " 

### suffer from inadequacies that make erroneous deprivations readily foreseeable." Hardee, 172 Wn.2d at 11. 

### We hold thatthe procedures Dr. Olson received sufficiently protected him from erroneous deprivation ofhis medical license. 

### The third part ofthe 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." - Nguyen, 144 Wn.2d at 532. Dr. Olson does not propose any possible substitute procedures. 7


### 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 ofanykind ofdue processviolation. Similarly, 1 AR 748 -50 are pages ofadeclaration 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 14No. 43552 - 7 -II 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 otherthan to say 

### thatalicense revocation proceeding is quasi-criminal,citing Nguyen. We do not agree thatthese
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 unnecessaryforthe 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 

## conductto violate any state or federal statute or administrative rule regulating the profession in to be misleading portions ofthe investigator's report. This declaration attempts to point outwhat 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. 15No. 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 ofthe 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 offact 1. 22 and 

### 1. 23 say that Dr. Olson touched Patient B' s breasts and findings offact 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 asNo. 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 . a client

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 ofHealth, 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, especiallythe duration and nature ofDr. Olson'stouching 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 furtherargument;we have no reason to hold that the - Commission erred in its conclusion oflaw 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, ofthe WACs and RCW 18. 130. 180(24).

17No. 43552 - 7 -II Conclusion oflaw 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 ofWAC 246 -16 -830. Tier B includes or addresses conduct 

### by a licensee that is considered " forceful 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 oflaw 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 

### ofthe touching is supported by findings offact 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 oflaw 2.8(B).

18No. 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.

We concur:

1Vltitlti, J.

19 ON, A.C.J. Y' . s

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