Alsager v. Board of Osteopathic Medicine & Surgery

945 F. Supp. 2d 1190, 2013 WL 911883, 2013 U.S. Dist. LEXIS 32569
CourtDistrict Court, W.D. Washington
DecidedMarch 8, 2013
DocketCase No. 13-5030 RJB
StatusPublished
Cited by2 cases

This text of 945 F. Supp. 2d 1190 (Alsager v. Board of Osteopathic Medicine & Surgery) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alsager v. Board of Osteopathic Medicine & Surgery, 945 F. Supp. 2d 1190, 2013 WL 911883, 2013 U.S. Dist. LEXIS 32569 (W.D. Wash. 2013).

Opinion

ORDER ON MOTION TO DISMISS

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on the Defendants Board of Osteopathic Medicine and Surgery, Washington State Department of Health and State of Washington’s Motion to Dismiss. Dkt. 10. The Court has considered the pleadings filed regarding the motion and the remaining record.

Plaintiff, a licensed physician, brings this case seeking injunctive relief and a declaration from this Court that certain Washington statutes governing professional medical license disciplinary proceedings violate the Fourth, Fifth and Fourteenth Amendments to' the U.S. Constitution. In Defendants’ Motion to Dismiss, they argue that the Plaintiffs Complaint against them should be dismissed pursuant to the Eleventh Amendment and under the Younger abstention doctrine. Dkt. 10. Defendants’ Motion should be granted. To the extent that Plaintiff asserts claims against the State of Washington or its agencies, the Complaint should be dismissed because they are immune from suit in federal court under the Eleventh Amendment.- Further, pursuant-to the Younger abstention doctrine, this Court should not exercise jurisdiction on Plaintiffs remaining claims against the individual state officials, and so those claims should also be dismissed.

I. FACTS AND PROCEDURAL HISTORY

■ This case arises from an investigation by the Washington State Board of Osteopathic Medicine and Surgery (“Board”) into alleged physician misconduct by Plaintiff. Dkt. 16.

A. BACKGROUND FACTS

The Board is a state created entity that regulates the practice of Washington’s osteopathic physicians to ensure - public health and safety. RCW § 18.57.001 et seq: To that end, the Board disciplines osteopathic physicians in Washington who conduct* themselves in an “unprofessional manner” as defined in Washington’s Health Professions Uniform Disciplinary Act (“UDA”) RCW § 18.130.010, et seq. RCW §§ 18.130.040(2)(vii) and 18.130.180. In addition to setting out what conduct is considered “unprofessional,” the UDA further establishes a uniform procedure for disciplinary action against all health care professionals in the state. RCW § 18.130.010. In Washington, the disciplinary process begins with a complaint, which, in the case of osteopathic physicians, is filed with the Board. RCW § 18.130.080. If the Board “determines that the complaint merits investigation,” the Board “shall investigate to determine whether there has been unprofessional conduct.” Id. (The Board directs a Washington State Department of Health health care investigator to begin the investigation. RCW 18.130.060(4).) At the earliest point of time, insofar as it does not impede an investigation, the physician about whom [1192]*1192the complaint is made is allowed to submit a written statement about that complaint. RCW § 18.180.095(l)(a).

Upon investigation, if there is reason to think unprofessional conduct has occurred, a statement of charges is served on the physician. RCW § 18.130.090(1). The statement of charges is accompanied by a notice that the physician may request a hearing to contest the charges. Id. If a hearing is requested, the time of the hearing shall be fixed by the Board “as soon as convenient, but the hearing shall not be held earlier than thirty days after service of the charges.” RCW § 18.130.090(2). Hearings are conducted fin accord with Washington’s Administrative Procedures Act, RCW § 34.05. RCW § 18.130.100. If an adverse decision is issued against a physician, that decision may be challenged in Washington’s superior courts and if necessary, appealed to the state appellate courts. RCW §§ 34.05.514 and 34.05.526. A physician that has been found to have engaged in unprofessional conduct can be censured, reprimanded, required to participate in a remedial program, put on probation, ordered to pay a fine, and/or have their license suspended or revoked. RCW § 18.130.160.

B. INVESTIGATION OF PLAINTIFF

The Amended Complaint alleges that in Plaintiffs case, the Board’s investigator sent him a letter on November 26, 2012, informing Plaintiff that the Board had received a complaint against him and was investigating that complaint. Dkt. 16-1, at 2. The letter outlined the alleged violations of the UDA as follows:

• RCW 18.130.180(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.”
• RCW 18.130.180(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.”
• RCW 18.130.180(11) “Violation of rules established by any health agency.”
• RCW 18.130.180(24) “Abuse of a client or patient or sexual contact with a client or patient.”

Dkt. 16-1, at 2. The letter then described the allegations:

Specifically, you have been treating Ms. - since approximately May 2009 for numerous health conditions. During her second appointment with you in 2009 for neck pain you inappropriately touched her bare breasts and placed your hand inside her pants and touched her vagina. After that appointment you developed a sexual relationship with Ms. - which has continued to the present time. The initial sexual assault was reported to Bothell Police Department by Ms___
The treatment you have provided to Mr. -has been questionable, according to two doctors that are familiar with her health history and prior care. Ms.-stated you have attempted to obtain partial ownership of her real estate property on more than one occasion.
.According to Ms. _, you have .

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Bluebook (online)
945 F. Supp. 2d 1190, 2013 WL 911883, 2013 U.S. Dist. LEXIS 32569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alsager-v-board-of-osteopathic-medicine-surgery-wawd-2013.