HAVSY v. BOARD OF OSTEOPATHIC MEDICINE, 53198-1-I (Wash.App. 9-27-2004)

No. 53198-1-IThe Court of Appeals of Washington, Division One.
Filed: September 27, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Thurston County. Docket No: 99-2-02194-8. Judgment or order under review. Date filed: 11/21/2002. Judge signing: Hon. Richard D. Hicks.

Counsel for Appellant(s), Mark Gregory Olson, Attorney at Law, 2825 Colby Ave Ste 302, Everett, WA 98201-3558.

Counsel for Respondent(s), Sharon Sullivan Eckholm, Washington Attorney General/Lic Emp, PO Box 40110, Olympia, WA 98504-0110.

APPELWICK, J.

Scott L. Havsy was licensed to practice osteopathic medicine in Washington. The State Board of Osteopathic Medicine and Surgery issued charges against Havsy alleging that on numerous instances Havsy had engaged in unprofessional conduct. The Board’s Presiding Officer conducted a hearing. Concluding that Havsy had engaged in unprofessional conduct, the Presiding Officer imposed sanctions. We affirm.

FACTS
Scott L. Havsy, D.O. became licensed to practice osteopathic medicine in the state of Washington in 1980. Osteopathic physicians are licensed and disciplined by the State Board of Osteopathic Medicine and Surgery (the Board). RCW 18.57.005, .011. On September 22, 1997, the Board issued a statement of charges against Havsy alleging numerous instances of unprofessional conduct in violation of RCW 18.130.180.[1] The charges stemmed from several complaints from Havsy’s patients regarding his behavior, actions, and treatment.

Pursuant to RCW 18.130.050, the State appointed a health law judge to act as the Presiding Officer (PO) for Havsy’s hearing.[2] Havsy filed a motion for a panel hearing, which the Board denied.

The PO conducted a hearing from September 13-22, 1999. After the hearing, the PO issued findings of fact and conclusions of law and a final order. The PO ordered the suspension of Havsy’s osteopathic physician’s license for five years. He permitted a stay of the suspension if Havsy fulfilled several conditions. The conditions included the following:

4.2 [Havsy] shall obtain a psychological evaluation addressing the conduct described in this Order. Within thirty (30) days of the effective date of this Order, [Havsy] shall schedule the psychological evaluation, which shall be conducted as soon as feasible. The psychological evaluation shall be obtained at [Havsys] expense. [Havsy] shall sign all necessary waivers to allow the Department staff to communicate with the evaluator as needed. Upon completion of the evaluation, [Havsy] shall assure that the Board receives a complete evaluation report. The psychological evaluation and report shall be accomplished through [Havsy’s] compliance with the following:
4.3 For all new patients seen after the effective date of this Order, [Havsy] shall: (a) provide the patient with a written estimate of costs of all diagnostic tests and procedures other than standard x-rays and physical examination; (b) inform the patient that in the event some of those tests or procedures are not covered by the entity to whom the bill for the tests is submitted, the patient shall be liable for the costs of the tests or procedures not covered; and (c) inform the patient that he or she has the right to decline to undergo those diagnostic procedures.
4.8. [Havsy] shall permit an investigator of the Department of Health to audit [his] records and review practice activities at [his] place of employment or practice on a random, unannounced basis for a minimum of two times a year.

Havsy filed a petition for judicial review of the PO’s order in Thurston County Superior Court. Just prior to scheduled argument, the Washington Supreme Court issued its opinion in Nguyen v. State Dep’t of Health Medical Quality Assurance Comm’n, 144 Wn.2d 516, 29 P. 3d 689 (2001), cert. denied, 535 U.S. 904, 122 S.Ct. 1203, 152 L.Ed.2d 141 (2002). In Nguyen, the Supreme Court held that because a medical license is a constitutionally protected property interest, due process requires application of the clear and convincing evidence standard in a medical disciplinary board action. Nguyen, 144 Wn.2d at 522-23. The Thurston County Superior Court therefore remanded the case to the PO to conduct further proceedings as necessary to comport with Nguyen.

In November 2001, the PO reaffirmed his original order, concluding that relevant findings of fact from its original order had been proved by clear and convincing evidence. Havsy sought judicial review of the PO’s second order affirming its original findings of fact and conclusions of law. The Thurston County Superior Court affirmed the PO’s order. Havsy appeals.

ANALYSIS I. Standard of Proof
Havsy asserts that when his case was remanded to the Board following the Supreme Court’s decision in Nguyen, 144 Wn.2d 516, the PO erred in not reconsidering the case under a clear and convincing evidence standard of proof.

In November 2001, the PO reaffirmed his original order. In his findings of fact, the PO concluded that relevant findings of fact from the original order had been proved by both a preponderance of the evidence and by clear and convincing evidence. The conclusions of law on remand stated in part: 3.2 The Board, through its delegation to the [PO], recognizes that the Washington Supreme Court has held recently that the standard of proof in disciplinary proceedings against physicians before the Washington State Medical Quality Assurance Commission is now proof by clear and convincing evidence. [Nguyen, 144 Wn.2d 516.] The Department has announced its intention to file a petition for writ of certiorari before the United States Supreme Court seeking review of the Nguyen decision. Further, the Washington State Court of Appeals has held recently that Nguyen should not necessarily be extended to disciplinary proceedings against all professional licensees. [Eidson v. Dep’t of Licensing, 108 Wn. App. 712, 718, 32 P.3d 1039 (2001)]. Given the legal uncertainty regarding the standard of proof in disciplinary proceedings against osteopathic physicians before the Board, the Board concludes that the standard of proof in its proceedings shall remain preponderance of the evidence, pursuant to WAC 246-11-520, pending further legislative or judicial guidance. However, recognizing that the standard of proof applicable to this Board’s proceedings may subsequently be determined to be clear and convincing evidence, the Board has considered the evidence under both the clear and convincing standard and the preponderance of the evidence standard.

Nguyen controls the standard of proof in this case. As in Nguyen, Havsy’s hearing was before a medical disciplinary board, and sanctions included the possible suspension of his medical license. It is irrelevant that Havsy’s original hearing was conducted prior to Nguyen because a new rule announced by the court applies retroactively, barring any procedural or res judicata issues. Robinson v. City of Seattle, 119 Wn.2d 34, 77-78, 830 P.2d 318, cert. denied, 506 U.S. 1028 (1992). Thus, on remand the PO was obligated to evaluate the evidence before him using the clear and convincing standard of proof. Accordingly, we review this appeal using the clear and convincing standard of proof.

II. Standard of Review
The Uniform Discipline Act (UDA), chapter 18.130 RCW governs the discipline of osteopathic physicians. RCW 18.57.011. The UDA serves two purposes: (1) to protect the public, and (2) to protect the standing of the medical profession in the eyes of the public. In re Kindschi, 52 Wn.2d 8, 11, 319 P.2d 824 (1958). The UDA confers upon the Board the authority to discipline osteopathic physicians.

This court reviews the Board’s orders under the Administrative Procedures Act (APA). RCW 34.05.570(3); Clausing v. State Bd. of Osteopathic Med. Surgery, 90 Wn. App. 863, 870, 955 P.2d 394, rev. denied, 136 Wn.2d 1020 (1998). It reviews the findings of the Board, and not the findings of the superior court. In re Farina, 94 Wn. App. 441, 450, 972 P.2d 531 (1999) (citing Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 323-24, 646 P.2d 113 (1982)). The reviewing court must grant relief if the Board’s order `violates the constitution, exceeds statutory authority, is the result of faulty procedure, involves an error in interpreting or applying the law, is not supported by substantial evidence, omits issues requiring resolution, involves improper rulings on disqualification issues, is inconsistent with an agency rule, or is arbitrary or capricious.’

Clausing, 90 Wn. App. at 870. The reviewing court is to give due deference to the Board’s expertise and knowledge. Clausing, 90 Wn. App. at 870-71. It `limits its function to assuring that the [Board] has exercised its discretion in accordance with law, and shall not itself undertake to exercise the discretion that the Legislature has placed in the agency.’ Clausing, 90 Wn. App. at 870-71 (quoting RCW 34.05.574(1)).

The clear and convincing evidence standard is applicable to proceedings affecting a medical license. Nyugen, 144 Wn.2d 516. Where the evidentiary standard is clear, cogent, and convincing, the appellate court must determine whether the substantial evidence in support of the findings of fact is `highly probable.’ Dewberry v. George, 115 Wn. App. 351, 362, 62 P.3d 525 (2002) (citing In re Marriage of Schweitzer, 132 Wn.2d 318, 329, 937 P.2d 1062 (1997)). Evidence is substantial when there is `sufficient quantum to persuade a fair-minded person of the truth of the declared premises.’ Clausen, 90 Wn. App. at 871.

An agency’s conclusions of law are reviewed de novo under the error of law standard. Bond v. Dep’t of Soc. Health Servs., 111 Wn. App. 566, 571-72, 45 P.3d 1087 (2002). We determine whether the findings of fact support the conclusions of law. Under this standard, the court accords substantial weight to the agency’s interpretation of the law, although it may substitute its judgment for that of the agency. Haley v. Medical Disciplinary Board, 117 Wn.2d at 728, 818 P.2d 1062 (1991).

III. Moral Turpitude
Havsy argues that findings of fact 2.3.2, 2.3.3, 2.8-2.12, and 2.14-2.16, upon which conclusion of law 3.4 is based, do not support that conclusion. Conclusion of law 3.4 states that Havsy’s conduct constituted moral turpitude. We address each finding in turn.

A. Finding of Fact 2.3.2 and 2.3.3
The PO adopted the opinion of Dr. Roper, an osteopathic physician who testified at Havsy’s hearing, to support finding of fact 2.3.2, which states that `the Department did not present evidence that an osteopathic physician has an affirmative obligation to inform patients of the reasons for performing diagnostic tests, x-rays or assessment studies, when the patient does not ask for the reasons for the procedures.’ Havsy reasons that because finding of fact 2.3.2 contradicts finding of fact 2.3.3, the latter cannot support the PO’s finding of moral turpitude.

Finding of fact 2.3.3 states that Havsy:

failed to adequately inform Patient TJH of the high costs of diagnostic tests, x-rays or assessment studies. Patient TJH testified he affirmatively inquired of [Havsy’s] office of how much the costs of the examination and x-rays would be, and was given an estimate that the x-rays would cost between $50 and $150. He testified he was not told of the cineradiography that would be performed, of its $425 cost, or of the risk that his insurance [company] would not cover the cost of the cineradiography, prior to his visit. He testified he was informed [by Havsy’s staff] only after his visit that his insurer would not cover the cost of the cineradiography. The [PO] finds Patient TJH’s testimony credible, and finds [Havsy] breached his fiduciary duty to Patient TJH by failing to adequately inform him of the high cost of the cineradiography and of the risk that his insurer might not cover the cineradiography cost, for which Patient T.J.H was personally responsible under the terms of the agreement [Havsy] required him to sign.

Finding of fact 2.3.3 (emphasis added). Dr. Roper testified that an osteopathic physician has no obligation to disclose the reasons for performing a test upon a patient when the patient does not inquire into the reasons for the test. Finding of fact 2.3.3 addresses whether an osteopathic physician has a duty to inform a patient of cost when the patient affirmatively inquires into the cost of a test or procedure. Havsy does not dispute that he required his patients to sign an insurance and payment form which contained a clause providing that the patient bore financial responsibility for any bills which the insurance company refused to pay. One of Havsy’s former employees, Dr. Finn Jenk (Dr. Jenk), testified that Havsy knew that the small print size of the clause made it difficult for patients to read. The PO could reasonably infer from Dr. Jenk’s testimony that Havsy knew his patients could easily overlook the scope of their financial responsibility. Another of Havsy’s former employees, Lisa Balcom (Balcom), testified that Havsy was aware that insurance companies were not paying for cineradiography and other diagnostic tests.

T.J.H. testified that prior to seeking treatment he inquired as to the cost of tests. He was informed by Havsy’s staff that he would have to pay only $50 of the cost of x-rays and that the insurance company would pay the balance. Without notifying T.J.H. otherwise, Havsy thereafter took an x-ray that cost considerably more than the insurance company would pay, and subsequently billed T.J.H. for it.

It is unclear whether Havsy knew his staff had misinformed T.J.H. that his cost for tests would be about $50. However, this is not dispositive of whether Havsy’s conduct constituted acts of moral turpitude. It is undisputed that T.J.H. was not informed of the actual cost to him. Havsy was aware that T.J.H.’s insurance company was unlikely to pay for the x-ray he administered to T.J.H. The evidence demonstrates it is highly probable that Havsy knew his patients were unaware of the extent of their financial responsibility, and were unlikely to become aware of it because of the small print size of the patient responsibility clause on his insurance and payment form and because the forms failed to indicate the unlikelihood of insurance coverage for certain procedures. The record supports by clear and convincing evidence a finding of fact that Havsy breached his fiduciary duty by failing to inform T.J.H. of the high cost of cineradiography and the risk that T.J.H.’s insurer might not pay for the test.

B. Finding of Fact 2.8
Finding of fact 2.8 states that Havsy sent letters to patients threatening to terminate treatment if they continued to retain Patrick Leahy (Leahy), an attorney whose referral relationship with Havsy had soured. Following a disagreement with Leahy, Havsy sent a letter regarding settlement of claims to some of his patients. None of the patients who received the letter from Havsy had settled his or her claim at the time he or she received the letter. The letter stated that if the patient continued to retain Leahy as counsel, the patient would be personally responsible for his or her outstanding bills. Patient M.G. testified that the letters and phone calls he received from Havsy regarding his choice of counsel were stressful. Patient S.V. testified that Havsy’s letter to her made her feel `really small,’ and was demeaning. The record shows that Havsy also referred bills for patients M.G., S.V., and H.G. for collection and/or legal action when they continued to retain Leahy. Leahy testified that following Havsy’s letters, the cases of patients who continued to retain Leahy were difficult to settle because Havsy refused to release medical records necessary to settle claims.

Havsy does not deny that he sent some of his patients a letter stating that if the patient retained Leahy, he or she would be responsible for his or her outstanding medical bills. Instead, he explains that the letters were justified because Leahy `reneg[ed] on numerous contractual arrangements’ with him. Havsy’s argument amounts to stating that he was justified in intimidating his patients to resolve his dispute with another professional. Havsy also argues that collateral estoppel bars the PO’s consideration of the letters because `the Board had already determined a year earlier that this type of letter did not rise’ to the level of unprofessional conduct. In August 1996, K.R., one of Havsy’s patients, complained about Havsy’s billing practices to the Washington Department of Health (DOH). Robert Nicoloff (Nicoloff), the Executive Director of the DOH’s Board of Osteopathic Medicine and Surgery, testified that in response to K.R.’s letter, in September 1996 he sent Havsy a letter, which stated in pertinent part:

The purpose of this letter is to inform you that the [Board] has received a report dated 9/17/1996 concerning billing issues. The report has been reviewed and determined that the issue of concern is not considered a violation of the [UDA], specifically unprofessional conduct as defined in RCW 18.130.180.

For the doctrine of collateral estoppel to apply, the asserting party has the burden of establishing four elements:

(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against who the plea is asserted was a party or was in privity with a party to the prior adjudication; (4) application of the doctrine does not work an injustice.

Thompson v. Dep’t. of Licensing, 138 Wn.2d 783, 790, 982 P.2d 601
(1999).

Havsy fails to meet the first and second elements of this test. As the PO noted, the claim based on K.R.’s complaint related to a fee dispute which had been resolved at the time of the complaint. The claims of S.V., M.G., and other Havsy patients who testified at Havsy’s Board hearing had not been settled at the time they received the letter from Havsy regarding Leahy. Moreover, a court will not apply collateral estoppel if, because of ambiguity or indefiniteness, it is unclear whether the issue was previously determined. Ludeman v. Dep’t of Health, 89 Wn. App. 751, 761, 951 P.2d 266 (1997). It was unclear that there had ever been a final adjudication on the merits on K.R.’s complaint.[3] Because Havsy cannot meet all the elements for collateral estoppel, that doctrine does not bar the PO’s consideration of letters to his patients regarding billing practices. Finding of fact 2.8.3 stated that Havsy sent the letter to patients `with the purpose of intimidating the patient into changing to another attorney, in order to punish Mr. Leahy, or of accelerating payment of his bill contrary to the terms of the agreements signed by the patients.’ Testimony by patients M.G., S.V., and H.G. renders it highly probable that Havsy intended to intimidate his patients by sending them the letter. The evidence in support of this finding is clear and convincing.

C. Finding of Fact 2.9
The record supports finding of fact 2.9, which states that, although the Department had not proved that Havsy screamed at his patient, E.K., it had proved that he became angry with E.K. when she informed Havsy that her insurer had requested she undergo an independent medical examination by Dr. Cheryl Hayes (Dr. Hayes). The PO found `Patient E.K.’s testimony regarding this encounter to be more credible than that of the Respondent’ and concluded that Havsy’s actions towards patient E.K. were `inappropriate and unprofessional.’ The PO also noted that `the impact of [Havsy’s] threats was later mitigated by his continuation of treatment of Patient EK.’ Havsy argues that the insurance carrier’s request for an independent medical examination was `clearly provocational,’ and that `anger in itself is not moral turpitude.’ Whether the insurance carrier’s request was `clearly provocational’ is irrelevant. Moreover, the PO found Havsy acted unprofessionally not because he exhibited anger, but rather, because Havsy `made Patient E.K. the recipient of his anger against the insurer and Dr. Hayes, and should have dealt with the potential for bias by Dr. Hayes in a professional manner.’ Clear and convincing evidence supports the PO’s finding that Havsy acted unprofessionally towards E.K.

D. Finding of Fact 2.10
Finding of fact 2.10 states that Havsy `intimidated his patients by laughing loudly, screaming, yelling, and speaking to patients about his personal endeavors and his own high regard for his participation in legal actions.’

Patient E.K. testified that Havsy’s habit of laughing, singing, screaming at insurance adjusters and yelling at his staff intimidated her. Patient W.N. testified that Havsy embarrassed her by yelling `Wilma,’ as in the Flintstones cartoon, at her, in the waiting area such that other patients and staff heard him. Balcom testified that Havsy threw a computer printout at her in front of patients and called her stupid. Wendy Shaw (Shaw), another of Havsy’s staff, testified that when Havsy discussed billings with patients he sometimes yelled and screamed so loudly that she could hear him through closed doors. Two other Havsy staff members, Jennifer Gray (Gray) and Dan Baker (Baker), testified that Havsy yelled and screamed in front of patients.

Havsy’s business associate, Michael Holman (Holman), testified that although Havsy was loud, he never witnessed Havsy yelling at patients or staff, and that neither Shaw nor Baker ever mentioned to him that Havsy yelled at patients or staff. The PO found Holman’s testimony credible, but also found that it did not rebut testimony by Shaw, Baker, Balcom, and Gray. Rather, Holman’s testimony suggested that Havsy `had motivation to constrain his behaviors when [Holman] was occasionally present in the clinic and [Shaw] and [Baker] had motivation to not disclose critical comments about [Havsy] to [Holman].’ Credibility determinations in administrative hearings are for the trier of fact, and not the appellate court, and will not be reversed on appeal. Russell v. Dep’t of Human Rights, 70 Wn. App. 408, 421, 854 P.2d 1087 (1993). Testimony from E.K. and several of Havsy’s employees makes it highly probable that Havsy intimidated his patients by yelling, screaming, and laughing loudly. Clear and convincing evidence supports this finding.

E. Finding of Fact 2.11-2.12
Finding of fact 2.11 was based on charges that Havsy `threatened or harassed other health care professionals who provided opinions relating to [his] use of certain diagnostic tests, x-rays or assessment studies not limited to, repeatedly making phone calls to their offices and homes, using unkind language to them and their families, and threatening to file lawsuits or filing lawsuits against them for providing their opinions.’ Finding of fact 2.11.1 found that Havsy wrote an insurer a letter maligning Dr. Ronald Brockman, a D.O. who had performed a medical management review of Havsy’s care to a patient. Havsy stated in his letter, `[I] consider Dr. Brockman to be an idiot type is a hired `hack’ of the insurance injury [sic] Dr. Brockman does not even have the `betzam’ [a Yiddish term for testicles] to sign his own report ` (quoting Ex. D-43). Finding of fact 2.11.2 states that Havsy sued Dr. Frederick Flynn (Dr. Flynn) for tortious interference with a business relationship based on Dr. Flynn’s independent review of Havsy’s care for a patient, and that Havsy lodged potentially damaging complaints against Dr. Flynn to the Madigan Army Hospital, the Office of the Judge Advocate General, and the Pentagon. Finding of fact 2.11.3 states that Havsy called Dr. Hayes’ office at least five times, following her review of his treatment of a patient, threatening to sue her for libel, slander, and defamation. Havsy later sued Dr. Hayes for tortious interference with a business relationship based on her subsequent review of another patient’s records. Findings of fact 2.11.4-2.11.7 state threats of lawsuits Havsy made to three other independent medical examiners. Whether Havsy followed through with these threats is not a part of the record.

Finding of fact 2.12 states:

[Havsy] does not deny any of the actions described in Findings 2.11.1 through 2.11.7. He testified he was `incensed,’ `offended’ and `upset’ by the statements made in the reviews of his care. The [PO] finds this explanation unpersuasive and irrelevant. Even if [Havsy] was incensed, offended, or upset, his responses were inappropriate and unprofessional. There are often disputes between treating providers and reviewers over the necessity of tests and treatments. However, [Havsy’s] chosen course of dealing with such disputes — insulting letters, threats of lawsuits, and pursuit of meritless lawsuits, and other similar actions — were not appropriate or professional means of dispute resolution. Rather the actions were intended by [Havsy] as retaliation for having made comments critical of the care he provided, and were intended to intimidate the reviewers so that they would either not participate in future reviews of [his] care of patients or would not make critical comments about [his] care of patients in future reviews.

Havsy argues that his legal suits against the independent examiners were an exercise of his legal rights and do not constitute moral turpitude. The PO was entitled to rely upon evidence at Havsy’s hearing, however, to find that Havsy did much more than exercise his legal rights by filing lawsuits, and did so in a manner which was unprofessional and an inappropriate means of resolving his disputes with the examiners. The record contains clear and convincing evidence that Havsy engaged in the conduct described in findings of fact 2.11 through 2.12.

F. Finding of Fact 2.14
Finding of fact 2.14 states that Havsy refused to discontinue painful treatment of patient E.K. after E.K. reported the treatment was painful and had requested that Havsy stop the treatment.

E.K testified that Havsy ran a machine over the sore areas of her back during one treatment. Havsy refused to stop when E.K. informed him it was hurting her, and instead responded that he knew what he was doing. E.K. further testified that she felt worse after the treatment. This finding is supported by clear and convincing evidence.

G. Finding of Fact 2.16
Havsy also challenges finding of fact 2.16. In finding of fact 2.16, the PO found that Havsy had not provided medical records for patients M.C., T.H., R.J., and W.N., as required by the Uniform Medical Records Information Act (UMRIA) chapter 70.02 RCW. RCW 70.02.080[4] provides: (1) Upon receipt of a written request from a patient to examine or copy all or part of the patient’s recorded health care information, a health care provider, as promptly as required under the circumstances, but no later than fifteen working days after receiving the request shall:

(a) Make the information available for examination during regular business hours and provide a copy, if requested, to the patient;

The Uniform Health Care Information Act (UHCIA) allows a practitioner to require pre-payment prior to providing copies of records, but does not allow other pre-conditions. RCW 70.02.080(2). Havsy argues that there was no testimony that he failed to submit records to patients within fifteen days of receiving payment, and that there is thus no evidence that he did not comply with the UMRIA. The record does not support this contention. The PO found that Havsy admitted that T.H.’s request for records was not fulfilled for five to six months, but that Havsy disputed that M.C. did not receive her records when requested. Although Havsy testified that W.N. had been told she could receive a copy of her records upon pre-payment for them, W.N. testified that she was not informed of this. The PO also found that Havsy’s letter to Leahy regarding records requests on behalf of M.C. and R.H. demonstrated that Havsy imposed preconditions to the receipt of records in violation of the UHCIA.[5]

Balcom testified that M.H.’s records were not sent to M.H. even though she had paid for them because Havsy instructed her not to send them to M.H. Havsy does not deny that he wrote Leahy a letter stating that a patient’s receipt of records was conditioned on a factor other than prepayment for copies of the patient’s medical records. The record thus shows that Havsy failed to comply with the UHCIA.

We find that there is clear and convincing evidence to support all of the findings which Havsy challenges. We next address whether the findings support conclusion of law 3.4.

H. Conclusion of Law 3.4
Conclusion of law 3.4 states:

An act of moral turpitude is one that violates commonly accepted standards of good morals, honesty, or justice. In re Hopkins, 54 Wn. [App.] 569, 103 P.2d 805 (1909). To constitute unprofessional conduct as an act of moral turpitude, the conduct `must indicate unfitness to bear the responsibilities of, and enjoy the privileges of, the profession.’ [Haley, 117 Wn.2d. at 731.] The Department contends that [Havsy’s] conduct indicates unfitness to practice medicine because it `tends to harm the standing of the profession in the eyes of the public, which [leads] to reasonable apprehension about the public welfare.’

Havsy challenges conclusion of law 3.4 as `factually deficient’ and `legally insupportable.’

Under RCW 18.130.180(1), `[t]he commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person’s profession’ constitutes unprofessional conduct. RCW 18.130.180(1).

Relying upon In re Farina, 94 Wn. App. 441, 972 P.2d 531 (1999), Havsy argues that while his conduct may have been inappropriate, it was not egregious enough to constitute moral turpitude. In re Farina stated: The definition of moral turpitude does not encompass merely technical and unwitting violations. It is an act of `baseness, vileness, or the depravity in private and social duties which man owes to his fellow man[.]’ It is to be `distinguished from statutory mala prohibita.’

In re Farina, 94 Wn. App. at 460 (quoting Black’s Law Dictionary 1008 (6th ed. 1990)). Havsy claims that his conduct failed to exhibit the `baseness, vileness, or the depravity’ described in Farina.

Havsy misapplies Farina. In context, the quote from Farina which Havsy relies upon stands for the proposition that a violation of a criminal statute does not necessarily constitute moral turpitude, and the conduct at issue therefore must be examined for inherent immorality. Farina, 94 Wn. App. at 460 (citing In re Kindschi, 52 Wn.2d 8, 12-13, 319 P.2d 824 (1958) (violation of federal tax statute not necessarily act of moral turpitude)). Farina also relied upon Haley, wherein the court stated:

[T]he term `moral turpitude[,]’ standing alone and unapplied, has a meaning difficult to fathom. Reading RCW 18.130.180(1) as a whole we interpret the statute as prohibiting conduct indicating unfitness to practice the profession.

Haley, 117 Wn.2d at 742 Conduct indicates unfitness to practice the profession if reasonable concerns are raised that the individual’s conduct may harm the public or lower the profession’s standing in the public’s eyes. Deatherage v. State Examining Bd. of Psychology, 134 Wn.2d 131, 139, 948 P.2d 828 (1997). As the court stated in Haley:

In re Kindschi, and Standow demonstrate that conduct may indicate unfitness to practice a profession or occupation without being directly related to the specific skills needed for that practice. The conduct need not have occurred during the actual exercise of professional or occupational skills, nor need the conduct raise general doubts about the individual’s grasp of those skills. In the context of medical disciplinary proceedings, and in the light of the purposes of such proceedings, conduct may indicate unfitness to practice medicine if it raises reasonable concerns that the individual may abuse the status of being a physician in such a way as to harm members of the public, or if it lowers the standing of the medical profession in the public’s eyes.

Haley, 117 Wn.2d at 733 (citing In re Kindschi, 52 Wn.2d at 12; Standow v. Spokane, 88 Wn.2d 624, 638, 564 P.2d 1145, appeal dismissed, 434 U.S. 992 (1977)).

The record clearly and convincingly shows that Havsy intimidated his patients, harassed colleagues, made unwarranted threats to end treatment of patients who did not comply with his demands that they not retain Leahy as an attorney, failed to disclose uninsured treatment expenses, failed to provide medical records when required to do so by statute, threatened or harassed other health care professionals, and refused to end a patient’s painful treatment when the patient requested that he do so. Clearly this conduct related to his practice. Clearly it created a reasonable concern for risk of harm to his patients and the public. And clearly, Havsy’s conduct would lower the profession’s standing in the eyes of the public. The record thus contains clear and convincing evidence that Havsy’s conduct rose to the level of acts `indicating his unfitness to practice the profession’ and undermined the UDA’s purposes of protecting the public and the standing of osteopathic physicians. Haley, 117 Wn.2d at 731. Havsy also asserts that the expert testimony of osteopathic physicians was required to demonstrate that his conduct constituted moral turpitude. Havsy filed a motion requesting that a panel comprised of osteopathic physicians, rather than the PO, adjudicate his case, but the Board denied his motion. Havsy fails to demonstrate that the Board was not entitled to follow the statutory procedure allowing appointment of a PO. Chapter 18.57 RCW governs the structure of disciplinary hearings and peer review. Under RCW 18.57.003, one member of the Board must be `a consumer who has neither a financial nor a fiduciary relationship to a health care delivery system’ and the remaining members must be osteopathic physicians. RCW 18.57.003. The UDA also allows the Board to appoint a PO and authorizes a PO to render a final decision regarding disposition of a license. RCW 18.130.050(8). The statute does not stipulate that the PO must be a health care professional in the same field as the defendant.

Relying on RCW 34.05.461(5) and Clausing, Havsy contends that the PO lacked the requisite `expertise, competency, and specialized knowledge’ to determine if Havsy engaged in acts of moral turpitude because the PO was not an osteopathic physician. Both RCW 34.05.461(5) and Clausing are inapposite.

In Clausing, an osteopathic physician, charged with violations of the UDA, argued on appeal that the Board’s findings were not supported by sufficient evidence. Clausing, 90 Wn. App. at 877-78. One of his assertions was that the Board improperly relied upon testimony by certain expert witnesses. Clausing, 90 Wn. App. at 877-78. On appeal, the court disagreed, noting that under RCW 34.05.461(5) the Board was `entitled to rely on its `experience, technical competency, and specialized knowledge” to evaluate the evidence before it. Clausing, 90 Wn. App. at 878. Thus, Clausing held that the Board’s expertise and experience entitled it to determine it was proper to rely on the testimony of an expert witness before it. Evidentiary decisions lie within the agency’s discretion. See WAC 10-08-200(6);[6] Clausing, 90 Wn. App. at 878. Clausing does not support Havsy’s assertion that the PO was required to be an osteopathic physician. RCW 34.05.461(5) states that `[w]here it bears on the issues presented, the agency’s experience, technical competency, and specialized knowledge may be used in the evaluation of evidence.’ RCW 34.05.461(5) (emphasis added). We do not read RCW 34.05.461(5) as requiring that the PO be an osteopathic physician. Here, the violations alleged to be unprofessional conduct were not the actual exercise of medical skills, but rather, related more to Havsy’s business and professional relationship with clients. This alone renders the need to evaluate expert testimony about professional skills moot. These issues are well within the grasp of a lay member of the board. Havsy also argues that Haley supports his claim that `a finding of moral turpitude under the UDA requires’ expert testimony. Havsy misinterprets Haley.

In Haley, the appellant physician argued that RCW 18.130.180(1) was unconstitutionally vague because of its use of the term `moral turpitude.’ Haley, 117 Wn.2d at 739-40. The Supreme Court stated that `’moral turpitude’, standing alone and unapplied, has a meaning difficult to fathom.’ Haley, 117 Wn.2d at 742. However, the Court also observed that RCW 18.130.180(1) was not insufficiently vague when read as a whole. Haley, 117 Wn.2d at 742-43. The court reasoned that:

We agree that the term `moral turpitude’, standing alone and unapplied, has a meaning difficult to fathom. Reading RCW 18.130.180(1) as a whole, however, we interpret the statute as prohibiting conduct indicating unfitness to practice the profession. This interpretation is supplemented, and the statute is given further content, in two ways. First, as we explained above, the statute is rendered more specific by reference to the purposes of professional discipline: to protect the public and the profession’s standing in the eyes of the public. Second, we agree with the [Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 461 P.2d 375, 82 Cal. Rptr. 175
(1969)] court that the common knowledge and understanding of members of the particular profession to which a statute applies may also provide the needed specificity to withstand a vagueness challenge.

Haley, 117 Wn.2d at 742-43.

Haley does not stand for the proposition that expert testimony is required under RCW 18.130.180(1). Rather, Haley states that the shared knowledge within a professional field is one of the factors that provides sufficient contour to RCW 18.130.180(1) to prevent its language from being vague. Here, the first factor alone provides sufficient context for the statute in light of the type of conduct at issue.

Havsy provides no argument sufficient to show that the evidence supporting findings of fact 2.2.3, 2.8-2.12, and 2.14-2.16 is not highly probable. Nor does he show that those findings do not support conclusion of law 3.4. The record before us supports the PO’s finding that Havsy’s conduct constituted moral turpitude under RCW 18.130.180(1).

IV. Negligence
Havsy also challenges conclusion of law 3.6, which states that Havsy’s conduct was negligent.

Havsy first argues that under Harris v. Groth, 99 Wn.2d 438, 663 P.2d 113 (1983), expert testimony or participation by professionally qualified board members at his hearing is required to prove negligence. Because expert testimony was not provided, he maintains, the PO erred in finding him negligent.

Havsy’s reading of Harris is inaccurate. In Harris a patient sued a physician for medical malpractice. Harris, 99 Wn.2d at 439-41. The trial court limited the testimony of one of the patient’s proposed witnesses, a physiologist not licensed to practice medicine. Harris, 99 Wn.2d at 441. On review, the Supreme Court found that the witness in that particular case was not knowledgeable enough with the accepted practices of neurosurgeons to testify as to the defendant’s negligence. Harris, 99 Wn.2d at 450. Nevertheless, the court explicitly rejected the rule that nonphysicians are per se disqualified from testifying as experts in medical malpractice actions. Harris, 99 Wn.2d at 450. Clearly, Harris does not stand for the proposition that expert testimony was required in order to show that Havsy was negligent.

Medical expert testimony in support of a determination of negligence is only necessary where the determination requires technical medical expertise beyond the comprehension of a layperson. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 228-29, 770 P.2d 182 (1989). Havsy has not shown that the charges against him in this particular case required an expert witness to assist the PO in determining whether he was negligent.

Havsy also asserts that findings of fact 2.8 and 2.10, upon which the PO based his conclusion that Havsy was negligent, are legally insufficient to support a finding of negligence under RCW 18.130.180(4).

Finding of fact 2.8 states that Havsy sent letters to patients threatening to terminate treatment if they continued to retain Leahy. These findings are stated above and we need not restate them here. They are supported by clear and convincing evidence.

RCW 18.130.180(4) addresses negligence, and states:

Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed.

Cases have interpreted RCW 18.130.180(4) to include physical injury within the ambit of harm. See, e.g., Discipline of Brown, 94 Wn. App. 7, 12, 972 P.2d 101 (1998) (dentist’s use of `silver cone’ treatment below the standard of care and caused physical harm to patients); Clausing v. State Bd. of Osteopathic Med. Surgery, 90 Wn. App. 863, 870, 955 P.2d 394 (1998) rev. denied (osteopathic physician’s license suspended for prescribing `legend drugs’ to patients). Findings of fact 2.8 and 2.10 do not establish that Havsy caused direct physical harm to his patients. The language of RCW 18.130.180(4) does not explicitly exclude non-physical injury or financial injury. Nor has any case interpreted these harms to be included. Finding of fact 2.8 noted actual harm to patients in settling their cases. Finding of fact 2.10 noted that patients experienced psychological distress as a result of Havsy’s screaming, yelling, and name-calling. Findings of fact 2.8 and 2.10 are legally sufficient to support a finding of negligence under RCW 18.130.180(4). Accordingly, we find that the PO did not err in concluding that Havsy’s conduct constituted negligence under RCW 18.130.180(4).

V. Misrepresentation
Havsy also assigns error to conclusion of law 3.8, which stated that Havsy engaged in misrepresentation.

Under RCW 18.130.180(13), `[m]isrepresentation or fraud in any aspect of the conduct of the business or profession’ constitutes unprofessional conduct. RCW 18.130.180(13).

Conclusion of law 3.8 states:

RCW 18.130.180(13) defines unprofessional conduct to include `misrepresentation or fraud in any aspect of the conduct of the business or profession.’ Based on Findings of Fact 2.3.2, 2.3.3, 2.6.2, 2.6.3 and 2.7, the [PO] concludes [Havsy’s] actions constituted misrepresentation, but not fraud, in his maintenance of inaccurate records on himself as a patient, in billing patients for tests and procedures not performed, and in his failure to inform patients of the high costs of some diagnostic tests. The [PO] finds these violations to be moderate in nature.

Below we address each of the findings of fact upon which conclusion of law 3.8 is based.

A. Finding of Fact 2.3.2 and 2.3.3
Havsy alleges that finding of fact 2.3.2 contradicts finding of fact 2.3.3, and that thus finding of fact 2.3.3 cannot support a conclusion that he engaged in misrepresentation. Findings of fact 2.3.2 and 2.3.3 are stated above. Each is supported by clear and convincing evidence. As the PO noted, no legal authority explicitly imposes an affirmative obligation upon a physician to reveal reasons for performing the particular treatments on a patient. Finding of fact 2.3.2 does not address the duty to disclose costs of procedures or the likelihood of insurance coverage for such treatments when the patient has not inquired. This finding does not conflict with finding of fact 2.3.3, which speaks to the duty to accurately provide information when a patient requests it.

RCW 18.130.180(13) imposes upon a physician the obligation to not make misrepresentations. Misrepresentation does not require intent; it may include instances in which a health practitioner should have known that information should have been disclosed. Heinmiller v. Dep’t. of Health, 127 Wn.2d 595, 602-03, 903 P.2d 433 (1995). The PO concluded that the evidence was too weak to support a finding that Havsy had engaged in fraud. However, he also concluded that Havsy’s awareness that the small print size on his patient release form discouraged patients from ascertaining their financial responsibility, in combination with his knowledge that the insurance companies typically did not reimburse for certain tests, supported a conclusion that Havsy engaged in misrepresentation in violation of RCW 18.130.180(13).

B. Finding of Fact 2.6.2 and 2.6.3
Finding of fact 2.6.2 states that Havsy billed W.S., a patient, $180 for a range of motion analysis test that was not performed on March 24, 1995. It further states that W.S.’s medical records do not contain any evidence of such a test being performed. Similarly, finding of fact 2.6.3 states that Havsy billed W.S. for manual therapeutic exercises provided on April 6, 1995, but that W.S.’s medical records contain no evidence that such exercises were performed or provided on that date.

The records show that Havsy billed patient W.S. $180 for a `ROM ANAL/GRAPH PER PLANE C SPI’ test on February 24, 1995. However, this procedure does not appear in W.S.’s medical records. Havsy’s billing records also show that Havsy billed patient W.S. $35 for an April 6, 1995 procedure listed as `manual therapeutic exercises’, which also does not appear in W.S.’s medical records. W.S.’s medical records thus indicate that the procedures were not performed. Havsy provided no other documentation or testimony at his hearing to show that the disputed procedures were actually performed. The incongruity between W.S.’s medical records and his bills makes it highly probable that Havsy charged W.S. for procedures not performed. This finding is supported by clear and convincing evidence.

C. Finding of Fact 2.7
Havsy also maintains that finding of fact 2.7 does not support a conclusion that he engaged in misrepresentation. He concedes that his medical records at issue were inaccurate, but argues that the inaccuracies do not rise to the level of misrepresentation.

Finding of Fact 2.7 states that the Department proved some, but not all, of its allegations that Havsy `maintained inaccurate or incomplete records for himself as a patient, and billed for treatment, diagnostic tests, x-rays or assessment studies provided to him by another health care provider.’ Finding of fact 2.7.1 was based largely on testimony by several of Havsy’s former employees. Gray testified that Havsy had ordered her to perform cineradiographic x-rays on him in November 1995. Havsy testified that Dr. Albert Bruno (‘Dr. Bruno’), another physician who had formerly been employed by Havsy, had ordered the tests.

Observing that Dr. Bruno no longer worked for Havsy on the date the tests were ordered, the PO found that Havsy’s records were inaccurate.

Finding of fact 2.7.2 states:

Although Dr. Bruno was no longer employed at [Havy’s] clinic in November 1995, [Havsy’s] clinic prepared and submitted the insurance reimbursement forms. Those forms were signed by a member of [Havsy’s] staff on behalf of Dr. Bruno, and although they listed Dr. Bruno’s federal tax identification number, they listed the payee as Dr. Bruno at [Havsy’s] clinic’s address. The Department did not present sufficient evidence to establish whether [Havsy] or Dr. Bruno actually received the reimbursement sought through these forms. However, the [PO] finds [Havsy] engaged in misrepresentation by billing and seeking reimbursement for examinations and treatments provided by Dr. Bruno by using [Havsy’s] clinic’s address as Dr. Bruno’s address, rather than using Dr. Bruno’s business address.

The record contains no evidence explicitly stating that Havsy, rather than Dr. Bruno, received reimbursement from the insurance company for the tests. However, Christie Capone, one of Havsy’s employees at the time Havsy received the disputed tests, testified that Havsy directed her to sign Dr. Bruno’s signature on the reimbursement form. Capone’s testimony, together with evidence that Dr. Bruno no longer worked at Havsy’s clinic on the date of the tests, was clear and convincing evidence that Havsy misrepresented Dr. Bruno as the ordering physician of the tests.

The PO also found that Havsy’s medical records on himself as a patient contained `misrepresentations.’ Finding of fact 2.7.3 states: Dr. Jenk testified that the progress notes attributed to him for examinations of [Havsy] on January 2, 5, and 8, 1996, were not dictated by him. He testified the notes use terminology he does not employ, . He also testified the notes lack terminology he typically uses as a chiropractor, Dr. Jenk identified the progress notes of his examinations of [Havsy] in February, August, September, and October 1996 as having been dictated by him . The PO finds Dr. Jenk, as the dictator of the notes, to be a credible assessor of whether a note is in his dictation style, and notes the considerable difference between the January 2, 5 and 8, 1996, and other notes dictated by Dr. Jenk The PO finds Dr. Jenk’s testimony more credible than that of [Havsy’s] and Ms. Runions, and therefore finds the January 2, 5 and 8, 1996, progress notes to be inaccurate to the extent they are attributed to Dr. Jenk.

Dr. Jenk’s testimony supports the PO’s findings that Havsy’s records misrepresented the care he received, and who ordered his tests and treatment. Finding of fact 2.7.3 is supported by clear and convincing evidence.

All the findings of fact which Havsy challenges clearly support conclusion of law 3.8. We find that the PO did not err in concluding Havsy engaged in misrepresentation.

VI. Abuse of Patients
Havsy also assigns error to conclusion of law 3.9. Conclusion of law 3.9 states that `[Havsy’s] actions constituted abuse of [his] patients. The [PO] concludes the term `abuse’ is not limited to instances of physical abuse, but rather includes the types of emotional and financial abuse that the patients suffered by [his] actions. The [PO] finds these violations to be severe in nature.’ Conclusion of law 3.9 was based on findings of fact 2.8, 2.9, 2.10 and 2.14. Havsy does not claim that he did not engage in the alleged conduct described in these findings. Rather, he maintains that his conduct does not constitute abuse as that term is used in RCW 18.130.180(24).

RCW 18.130.180(24) states that `[a]buse of a client or patient or sexual contact with a client or patient’ constitutes unprofessional conduct. RCW 18.130.180(24).

Finding of fact 2.14 states that Havsy refused to discontinue painful treatment of patient E.K. after E.K. reported the treatment was painful and had requested that Havsy stop the treatment.

E.K testified that Havsy ran a machine over the sore areas of her back during one treatment. Havsy refused to stop when E.K. informed him it was hurting her, and instead responded that he knew what he was doing. E.K. further testified that she felt worse after the treatment. This finding is supported by clear and convincing evidence.

Havsy asserts that finding of fact 2.14 does not support the PO’s conclusion of abuse because testimony by Havsy’s expert witness, Dr. Roper, showed that his treatment of E.K. was not abuse because a course of treatment does sometimes cause pain. Dr. Roper, an osteopathic physician, testified that some treatments may cause temporary pain or discomfort. The PO found that Dr. Roper’s opinion was `of little value because of its general nature.’ However, this does not address whether it is abusive to continue to inflict pain during legitimate treatment methods after the patient has requested that the treatment provider stop the treatment. The Board is entitled to draw its own inferences from the testimony and evidence presented to it. Clausing, 90 Wn. App. at 879. The PO was thus entitled to find E.K.’s testimony credible and to find that Dr. Roper’s opinion did not permit an osteopathic physician to continue a treatment and ignore a patient’s complaints of pain in every circumstance. Finding of fact 2.14 supports the PO’s conclusion that Havsy engaged in physically abusive conduct towards E.K., a patient.

Findings of fact 2.8, 2.9, and 2.10 do not concern physical or sexual abuse. They state, respectively, that Havsy (1) intimidated his patients by threatening to collect in full on their medical bills if they continued to retain Leahy as legal counsel; (2) yelled at patient E.K. and threatened to terminate treatment if she submitted to an examination requested by her insurance provider; and (3) yelled at patients during their office visits. Havsy does not challenge these findings. Nor does he argue that his threats, yelling and intimidation of his patients do not constitute mental or emotional abuse. Rather, he asserts that `abuse,’ as used in RCW 18.130.180(24), is limited to physical and sexual abuse. Thus, he reasons, because findings of fact 2.8, 2.9, and 2.10 do not address physical or sexual abuse, they do not support conclusion of law 3.9.

The term `abuse’ is not defined in the UDA, and Washington courts have not fully discussed how `abuse,’ as used in RCW 18.130.180(24), is to be interpreted. Havsy is correct that previous published cases have applied RCW 18.130.180(24) to situations involving inappropriate sexual contact between health practitioners and patients. See, e.g., Haley, 117 Wn.2d 720 (finding that surgeon’s inappropriate relationship with former, minor patient violated RCW 18.130.180(24)); Heinmiller, 127 Wn.2d at 605 (finding that a social worker who begins a sexual relationship with a patient the day after the formal therapist-patient relationship ends falls within the purview of RCW 18.130.180(24)). This is not dispositive, however, of whether `abuse’, as used in RCW 18.130.180(24), encompasses only physical and sexual abuse.

To support his position, Havsy quotes a definition of `abuse’ from Black’s Law Dictionary. He contends that under the definition of `abuse’ in Black’s Law Dictionary, the court must limit RCW 18.130.180(24)’s application to physical or sexual abuse. (quoting Black’s Law Dictionary 10 (7th ed. 1999)). However, Havsy quotes the definition of `abuse’ in Black’s Law Dictionary only in part. The relevant portion of the definition which he omits states that `abuse’ can be `physical or mental maltreatment.’ Black’s Law Dictionary 10 (7th ed. 1999). Black’s Law Dictionary defines `maltreatment’ as `[b]ad treatment resulting from ignorance, neglect, or willfulness.’ Black’s Law Dictionary 971 (7th ed. 1999). Under the definition of `abuse’ in Black’s Law Dictionary, `abuse’ may include maltreatment resulting from ignorance, neglect, and willfulness. It is thus not restricted to physical or sexual mistreatment. The complete definition of `abuse’ in Black’s Law Dictionary aligns with the definition of `abuse’ offered by the State. Quoting Webster’s New World Dictionary (Third College Edition, 1988), the State asserts that `abuse,’ as used in RCW 18.130.180(24), should include within its scope `mistreatment; injury a bad custom or practice [or] insulting or coarse language.’ The definitions of `abuse’ in both Black’s and Websters also comport with the phrasing of RCW 18.130.180(24), which is in the disjunctive — `[a]buse of a client or patient or sexual contact.’ RCW 18.130.180(24) (emphasis added).

We hold that abuse of a client as used in RCW 18.130.180(24) includes mental or emotional abuse. Intimidating speech, screaming, and yelling all may constitute mental or emotional abuse. Havsy’s conduct as described in findings of fact 2.8, 2.9, and 2.10 supports the Board’s conclusion that Havsy abused his patients in violation of RCW 18.130.180(24). No error was committed in conclusion of law 3.8.

VII. Sanctions and Practice Restrictions
Havsy asserts that the PO erred when severe sanctions and practice restrictions were imposed on him.

Upon finding that a physician has committed unprofessional conduct, the PO must impose appropriate sanctions to ensure the public is protected. RCW 18.130.160. We accord an agency’s determination of sanctions considerable judicial deference, as it is peculiarly a matter of `administrative competence.’ Brown, 94 Wn. App. 7 at 16. A reviewing court may reverse an agency order if `[t]he order is arbitrary or capricious.’ RCW 34.05.570(3)(i). `Arbitrary and capricious action has been defined as willful and unreasoning action, without consideration and in disregard of facts and circumstances. Where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached.’ Heinmiller, 127 Wn.2d at 609 (quoting Pierce County Sheriff v. Civil Serv. Comm’n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983) (quoting State v. Rowe, 93 Wn.2d 277, 284, 609 P.2d 1348 (1980))). In his final order, the PO ordered that Havsy’s medical license be suspended for at least five years. He permitted a stay of the suspension if Havsy fulfilled several conditions. The conditions included the following:

4.2 [Havsy] shall obtain a psychological evaluation addressing the conduct described in this Order. Within thirty (30) days of the effective date of this Order, [Havsy] shall schedule the psychological evaluation, which shall be conducted as soon as feasible. The psychological evaluation shall be obtained at [Havsys] expense. [Havsy] shall sign all necessary waivers to allow the Department staff to communicate with the evaluator as needed. Upon completion of the evaluation, [Havsy] shall assure that the Board receives a complete evaluation report. The psychological evaluation and report shall be accomplished through [Havsy’s] compliance with the following:
4.3 For all new patients seen after the effective date of this Order, [Havsy] shall: (a) provide the patient with a written estimate of costs of all diagnostic tests and procedures other than standard x-rays and physical examination; (b) inform the patient that in the event some of those tests or procedures are not covered by the entity to whom the bill for the tests is submitted, the patient shall be liable for the costs of the tests or procedures not covered; and (c) inform the patient that he or she has the right to decline to undergo those diagnostic procedures.
4.8. [Havsy] shall permit an investigator of the Department of Health to audit [his] records and review practice activities at [his] place of employment or practice on a random, unannounced basis for a minimum of two times a year.

Havsy asserts that the sanctions imposed upon him are excessive because there is no evidence that he had a psychological disorder requiring psychological evaluation, and because the violations occurred five years before the hearing in September 1999. He further claims that the violations must not have been serious because the State did not promptly act. Id. at 34. His arguments are meritless.

The sanctions imposed upon Havsy directly relate to the PO’s duty to protect the public and are supported by the record. The PO’s final order was based upon an eight-day trial during which he reviewed testimony by several witnesses and extensive documentation presented by both Havsy and the State. Havsy thus had ample opportunity to present his arguments and to be heard. `Action taken after giving [a] respondent ample opportunity to be heard, exercised honestly and upon due consideration, even though it may be believed an erroneous decision has been reached, is not arbitrary or capricious.’ Heinmiller, 127 Wn.2d at 609-10.

The PO found that the State failed to prove some of its charges against Havsy, but that the State proved other charges. Based on the evidence before him, the PO concluded that Havsy had engaged in acts of negligence, misrepresentation and abuse in the pursuit of making money and had intimidated and threatened his patients. The PO properly concluded that the interests of the public and of the profession would best be served if Havsy were to receive a period of oversight and monitoring.

The record shows that Havsy experienced extreme mood swings and frequently responded to patients and other individuals over whom he wielded power with disproportionate anger. Based on this, the PO required Havsy to receive psychological evaluation and ordered that the Board be privy to that evaluation `to protect the public.’ Conclusion of law 4.3, mandating that Havsy provide his patients with written estimates, was remedial in nature and addressed Havsy’s misrepresentation. Conclusion of law 4.8, likewise, was remedial in nature and intended to provide oversight of Havsy’s practice for the protection of the public. The record does not support a conclusion that the PO’s sanctions were arbitrary or capricious. Accordingly, we conclude that the sanctions imposed upon Havsy were proper.

VIII. Attorney Fees
Havsy asserts that he is entitled to attorney fees under RCW 34.05.566
and RCW 4.84.350.[7] Because Havsy is not the prevailing party we deny his request for attorney fees and costs.

SCHINDLER and COX, JJ., Concur.