Brown v. State
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 47789-7-I
Title of Case: John D. Brown, Appellant
v.
State Dept. of Health Chiropractic, et al, Respond
File Date: 01/22/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 002103310
Judgment or order under review
Date filed: 12/12/2000
Judge signing: Hon. Sharon Armstrong
JUDGES
------
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
John D. Brown (Appearing Pro Se)
6016 N.E. Bothell Way
#115
Kenmore, WA 98028
Counsel for Respondent(s)
S. K. O'Neal
Assistant Attorney General
PO Box 40100
Olympia, WA 98504-0100
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN D. BROWN, D.C., )
) No. 47789-7-I
Appellant, )
) DIVISION ONE
v. ) )
STATE OF WASHINGTON, )
DEPARTMENT OF HEALTH, )
CHIROPRACTIC QUALITY ) UNPUBLISHED OPINION
ASSURANCE COMMISSION, )
) FILED:
Respondent. )
)
PER CURIAM - John Brown appeals the trial court's decision affirming
the Commission of Chiropractic Quality Assurance's (Commission) final
order. The order revoked his license to practice as a chiropractor,
imposed a $30,000 fine, ordered him to cease and desist from all actions
falling within the chiropractic practice, and prohibited him from
representing himself as a licensed chiropractor. Brown contends that (1)
the Commission did not have jurisdiction over him because his license had
expired, (2) the findings of fact are not supported by substantial
evidence, and (3) the freedom to practice his religion prevents the State
from regulating his practice. We affirm the Commission's order because it
had jurisdiction to hear this matter, the administrative record contained
substantial evidence, including the Commissioners' expertise, to support
its findings, and the State has authority to regulate Brown's practices to
protect the public health, safety, and welfare.
FACTS
In January 1966, John Brown got his chiropractic license from the State of
Washington. His license expired on July 3, 1993, and Brown has not renewed
it. In February 1997, Patient A was suffering from headaches, and on the
recommendation of her sister, Alison Falco, she went to the Alphabiotic New
Life Center which Brown operates.
Patient A testified that Brown told her he had been a chiropractor for 20
years, but did not tell her that his license was expired. She also
testified that she would not have sought his treatment if she had known he
was unlicensed, that he referred to himself as 'doctor,' and that he had
business cards that read 'Dr. John D. Brown, Developmental Alphabioticist.'
Brown told her that the difference between chiropractic and alphabiotics
was that only neck alignments were performed in alphabiotics.
On February 10, 1997, Patient A went to Brown for treatment of her
headaches, and she filled out and signed a form containing biographical
information. She testified that she did not read all of it. She also
admitted signing a form entitled 'Comprehension,' but said that she did not
read it thoroughly. She stated that Brown handed her the forms without
explaining their content, that she did not believe she was joining a
religious organization, and that she would not have joined if she had known
she was being asked to.
During treatment, Brown had Patient A lie on an inclined table while he
placed his hands under her neck and turned her head from side to side.
Brown placed one hand on her chin and one hand under her neck, turned her
head to one side, and then forcefully pulled her head up to the table. He
repeated this procedure after turning her head to the other side. Patient
A testified that it was very similar to prior chiropractic treatment she
received in New York.
Patient A testified that after paying Brown $20 for the treatment, she felt
fine and her headaches and neck stiffness decreased. Brown did not warn
her of the risk of stroke from the procedure he performed. She also stated
that she did not believe she was making a donation, and there were no
religious discussions, prayers, readings, or materials associated with her
visit.
Patient A returned to Brown's facility four more times. He performed the
same procedure each time, she paid $20 per visit, and there were no
religious discussions. Following her fifth visit, Patient A suffered minor
dizziness and neck pain. When she told Brown about it, he recommended she
return for another treatment.
When she returned for her final treatment on March 12, 1997, Brown
performed the same procedure. But this time, when he turned Patient A's
head to the right and pulled her head up, she experienced immediate vertigo
and nausea. She told Brown, and he told her to rest for a minute. Brown
left the room, and when he returned, she was still suffering vertigo and
nausea. Brown had to help her sit up because she was unable to do so
alone. She vomited, sweated profusely, and could not feel her feet or left
leg. She asked Brown to call Falco. He did so, but did not tell her it
was urgent. When Falco arrived, she and another woman helped Patient A
into the restroom where she lost control of her bowels and continued to
vomit. Brown knocked on the bathroom door and said, 'You really need to
get her home.' He did not mention that she could have had a stroke, did
not call 911, and did not advise Falco to take her to the emergency room.
Falco and Robert Freeman, Patient A's brother-in-law, took her home and,
after consulting a physician, took her to the emergency room. Patient A
was diagnosed with a stroke caused by dissections of both vertebral
arteries which her physicians believe Brown's procedure caused. She was
hospitalized for eleven days, did not work for a month, could only work
part-time for two months, has had to reduce the intensity of her job, and
has lost income. Patient A brought a civil action against Brown.
Falco and Freeman corroborated Patient A's testimony. They both testified
to the procedures Brown performed on them, which they described as the same
as those he performed on Patient A. They also testified that Brown
referred to himself as a doctor and told them he had been a practicing
chiropractor for 20 years without mentioning his expired license. They
also signed his forms without reading them thoroughly, paid for their
treatments, and had no religious discussions with Brown.
Brown did not deny any of these facts, except to state that he was not
performing any form of treatment on Patient A, Falco, and Freeman, and that
his pulling on the head was not forceful. He testified that he was
performing the alphabiotic alignment process, and not a chiropractic
adjustment. He also testified that the alphabiotic alignment process is a
sacrament of the Alphabiotic Church and that Patient A, Falco, and Freeman
were members of the church and acknowledged in the forms they signed that
they were not receiving chiropractic or other treatment. He also said
there were no materials in his office referring to chiropractic practice,
and that all materials, diplomas, and documents referred to alphabiotics.
He stated that he was trained in alphabiotics in Texas by Dr. Virgil Chrane
and others. After an eight-month training period, he was awarded a Doctor
of Alphabiotics degree; that is the degree he refers to when he uses the
title 'Doctor.' Brown stated that he learned the alphabiotic alignment
process from Chrane, who was also a chiropractor.
On March 9, 1999, the Commission issued a statement of charges alleging
that Brown committed unprofessional conduct by, among other things,
practicing chiropractic medicine without a license, representing to his
patients that he was a chiropractor when his license was expired, failing
to exercise reasonable care when performing a chiropractic manipulation of
Patient A's spine, failing to warn Patient A that she could suffer a stroke
as a result of the manipulation, and failing to take proper emergency care
procedures when Patient A displayed stroke symptoms. On January 27, 2000,
there was an adjudicative hearing before a panel of four Commission
members, which included three licensed chiropractors. Brown chose to
represent himself at the hearing.
On March 14, 2000, the Commission issued its findings of fact, conclusions
of law, and final order. It found that Brown's treatment was a
chiropractic procedure, that he practiced chiropractic medicine without a
license, that he misled Patient A into believing he was licensed, and that
his treatment of Patient A was severely negligent. The Commission
concluded Brown committed professional malpractice in violation of RCW
18.130.180(4),(7),(8)(a),(13), RCW 18.24.112(1), and RCW 18.25.011, revoked
his license for 10 years, imposed a $30,000 fine, issued a cease and desist
order prohibiting him from performing chiropractic procedures until his
license is reinstated, and prohibited him from representing himself as a
licensed chiropractor. Brown appealed the Commission's final order to
superior court which affirmed the Commission. This appeal followed.
DISCUSSION
The Commission concluded that Brown violated RCW 18.25.011 and RCW
18.130.180. RCW 18.25.011 provides that '{i}t is a violation of RCW
18.130.190 for any person to practice chiropractic in this state unless the
person has obtained a license as provided in this chapter.' RCW 18.130.180
pertains to 'conduct, acts, or conditions {that} constitute unprofessional
conduct for any license holder or applicant under the jurisdiction of this
chapter{.}' Brown maintains that the Commission lacked jurisdiction over
his case because RCW 18.130.180 only applies to licensed chiropractors and
his license was expired. He asserts that the Commission cannot both argue
that he was in violation by practicing without a license and that as a
license holder his conduct was unprofessional. We disagree.
The State argues that if the Commission is unable to investigate unlicensed
persons for unprofessional conduct under RCW 18.130.180 until they seek
reinstatement, evidence and witnesses will become stale or lost. Because
the Secretary of the Department of Health has the same authority to
investigate those practicing without a license as the Commission has to
investigate unprofessional conduct, Brown argues that a Health Department
investigation would preserve evidence and witnesses. The evidence the
Secretary discovers could then be used to deny reinstatement. But this
fact does not deprive the Commission of jurisdiction over persons with
expired licenses.
The State contends that the Commission has jurisdiction over Brown under
WAC 246-11-090(1) and that case law from other jurisdictions agrees. WAC
246-11-090(1) provides:
The board has jurisdiction over all licenses issued by the board and over
all holders of and applicants for licenses as provided in RCW
18.130.040(2)(b) and (3). Such jurisdiction is retained even if an
applicant requests to withdraw the application, or a licensee surrenders or
fails to renew a license.{1}
Brown asserts that the Legislature did not give the Commission jurisdiction
to make findings of unprofessional conduct under RCW 18.130.180 and RCW
18.130.050(2)2 against an unlicensed person because the regulation
conflicts with the statutes. This contention is without merit. RCW
18.130.050(2) gives the Commission authority to investigate and hold
hearings on 'all . . . reports of unprofessional conduct.' Because the
statute does not distinguish between expired and active licenses, it gives
the Commission jurisdiction over any person who has held a license and
appears to have engaged in unprofessional conduct.
In Wang v. Board of Registration in Medicine,3 the Massachusetts
Supreme Court faced the same issue. The physician contested the
disciplinary board's jurisdiction because his license had expired before
the board initiated proceedings against him. The Wang court concluded that
the agency retained jurisdiction over the physician because, like RCW
18.130.050(2), a state statute authorized the board to ''investigate all
complaints relating to the proper practice of medicine by any person
holding a certificate of registration.''4 Even though the physician failed
to renew his license, it could be revived upon completion of the renewal
process. Thus, the Wang court held that even though the physician did not
have a license that could be revoked, the board had jurisdiction to revoke
his 'inchoate right to reestablish his status as a licensed physician in
Massachusetts simply by completing the renewal process.'5 The Wang court
also concluded that, while the board could wait to initiate proceedings
until the physician filed for renewal,
{w}e cannot say, however, as a matter of law, that the board must wait for
Wang's renewal application to initiate disciplinary proceedings rather than
doing so when his misconduct became known to the board.
The board's purpose is protection of the public interest, and when the
board exercises its statutory function of conducting disciplinary
proceedings, it is pursuing that purpose. . . .{6}
The Wang court reasoned that
'{i}t is logical and sensible that, where such grave charges of . . .
unprofessional or dishonorable conduct are alleged, the Board has the right
to preserve {any} evidence . . . of these charges; otherwise witnesses may
disappear and the passage of time itself may well dim or even eradicate the
memory of the witnesses and thus preclude the construction of an adequate
record.'. . .{7}
Brown argues that Wang is inapposite because Wang held his license when his
unprofessional conduct occurred. He contends we should follow the
Connecticut Supreme Court's decision in Stern v. Connecticut Medical
Examining Board.8 His argument is not persuasive. First, both Wang's and
Brown's licenses had expired when disciplinary proceedings began. Second,
the statutory scheme in Stern is different from ours. In Connecticut, when
a physician does not renew his license within 90 days, it automatically
becomes void under Connecticut law.9 In both Washington and
Massachusetts, the statutes provide that a license that is not renewed
'shall be automatically revoked, but shall be revived upon completion of
the renewal process.'10 As in Wang, a chiropractor with an expired license
in Washington has an inchoate right to reestablish his status as a licensed
chiropractor simply by completing the renewal process.11 For the same
public policy reasons the Wang court relied on, we hold that the Commission
had jurisdiction over Brown.
Brown next contends that he was denied due process because the Commission's
findings of fact 2.14 and 2.15 are not supported by substantial evidence in
the administrative record. We review agency orders in adjudicative
proceedings under the Administrative Procedure Act, and review is confined
to the administrative record.12 The reviewing court must give due deference
to the agency's knowledge and expertise.13 But the findings of fact must
also be supported by substantial evidence, which is ''evidence in
sufficient quantum to persuade a fair-minded person of the truth of the
declared premises.''14
Finding of fact 2.14 provides in part:
Based on its own expertise, the Commission finds that the procedure
performed by the Respondent on Patient A, which he calls the Alphabiotic
Alignment Process, is indistinguishable from the chiropractic adjustment
known as the Chrane condyle lift, which was taught by Virgil Chrane while
he was still practicing as a chiropractor. The Commission finds that the
Chrane condyle lift is a useful but potentially dangerous chiropractic
adjustment, and that one of the significant risks of the Crane condyle lift
is dissection of vertebral arteries and resulting stroke. . . .
Specifically, Brown asserts that there is insubstantial evidence to find
that (1) Chrane taught the Chrane condyle lift and (2) the Chrane condyle
lift is potentially dangerous and may cause a stroke. Again, we disagree.
Brown's first assertion fails because the record contains substantial
supporting evidence. Panel members questioned Brown about the Chrane
condyle lift and about his training under Chrane. Brown also testified
that Chrane was a chiropractor before he founded the Alphabiotic New Life
Church in 1972. Based on this evidence and on the Commission's own
expertise, there was substantial evidence to support the finding. And even
if the finding were somehow infirm, it is not necessary to the Commission's
conclusion that Brown performed a chiropractic procedure and that his
conduct was unprofessional.
Brown's second assertion fails because the Commission has statutory
authority to use its expertise to find that the chiropractic procedure is
dangerous. RCW 34.05.461(5) provides 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.' In Washington
Medical Disciplinary Board v. Johnston, the Supreme Court stated that the
board's conclusion that the respondent violated accepted surgical standards
without specific evidence in the record on the standards was proper.15
Since the board is composed strictly of licensed physicians, RCW 18.72.040,
and since RCW 34.04.100(4) permits agencies to utilize the specialized
knowledge of their members in evaluating evidence presented to them, we
believe it is logical and proper for the State Medical Disciplinary Board
to draw its own conclusions as to acceptable surgical standards. As to
such specialized matters, we give deference to administrative expertise.{16}
In Davidson v. Department of Licensing,17 Dr. Davidson argued that the board
could not rely on its own expertise to find that a vibrator massage was
improper chiropractic treatment and that his conduct was in part sexually
motivated. In response, the Davidson court stated that
{i}t is well settled that when acting in a judicial capacity, an
administrative board cannot base its findings and conclusions upon
undisclosed documentary evidence or personal knowledge of the facts.
However, an administrative agency, or its authorized agents, may use their
experience and specialized knowledge to evaluate and draw inferences from
the evidence presented to them. Moreover, courts of numerous
jurisdictions, including Washington, have held that in a medical
disciplinary proceeding an administrative board comprised of medical
practitioners is competent to determine the propriety of medical conduct
without the aid of expert testimony. These courts have recognized that
expert testimony regarding the propriety of medical conduct could be
disregarded by a board of this type and in all probability would have
little effect on the decisionmaking process.{18}
Similarly, the finding here that the Chrane condyle lift is potentially
dangerous and can pose a risk of stroke is well within the Commission's
expertise and authority. Three of the Commission's four panel members were
licensed chiropractors who had the specialized knowledge of chiropractic
techniques to evaluate the procedure at issue. Like the tribunals in
Johnston and Davidson, the Commission members were 'competent to determine
the propriety of medical conduct.'19 We do not substitute our judgment for
that of the Commission. The Commission's finding is supported by
substantial evidence.
Brown next argues that finding of fact 2.15 is not supported by
substantial evidence in the record. Finding of fact 2.15 provides in part:
The Commission further finds the Respondent's performance of the Chrane
condyle lift, without advising patients of the risk of stroke, and without
adequate training to recognize such strokes, was below the standard of care
required of chiropractors in the state of Washington. The Respondent
acknowledged his response to Patient A's symptoms was insufficient, and
that he should have called for emergency help. . . .
Brown's first assertion, that the Commission improperly found he lacked
sufficient training to recognize strokes, fails because the record
contained substantial supporting evidence. The Commission questioned him
about the training he received from Chrane and the qualifications necessary
to be admitted to Chrane's school of alphabiotics. Brown testified that he
allowed his chiropractic license to expire because he would need 'a major
amount of schooling' to qualify as a chiropractor. He also admitted that
he was 'lax' and 'amiss' in failing to get Patient A assistance. And when
questioned about what symptoms he would need to see before suggesting that
a patient go to the emergency room, he testified he did not know. This was
substantial evidence supporting the Commission's finding that Brown lacked
training to recognize strokes.
Brown also contests the finding that his conduct was below the standard of
care required for chiropractors in Washington. He asserts that the risk of
stroke from the Chrane condyle lift is not common knowledge among
chiropractors because the procedure is not taught in chiropractic schools,
there are no studies on the subject, and there is no prior Commission
ruling about the procedure. But because the Commission may use its
experience and specialized knowledge to evaluate the evidence, this portion
of the finding was within its competence. It is proper for a Commission
made up of experts in the field to make findings about acceptable
chiropractic standards.20
Finally, Brown maintains that state regulation of his conduct
infringes on his right to free exercise of religion. In rejecting his
contention in conclusion of law 3.3, the Commission stated:
Under the First Amendment to the United States Constitution and Article I,
section 11 of the Washington State Constitution, which both protect the
free exercise of religion, the right to believe is absolute, but the right
to act is not. . . . The legislature has selected measures to protect the
public health, including requiring those employing the techniques and
procedures of chiropractic to be license by the state and to abide by state
regulation. As demonstrated by the facts of this case, the use of
chiropractic techniques, when unregulated by the state, can result in harm
to the public health. Therefore, the Commission concludes that its
regulation of the Respondent's actions, to the extent they involve the
practice of chiropractic and the use of chiropractic techniques, does not
impermissibly burden the Respondent's free exercise of his religion.{21}
Brown maintains that affirming the Commission's order abolishes the
Alphabiotic Church because the Commission found Brown's conduct, which he
asserts is the essential sacrament and teaching of the Alphabiotic church,
was a chiropractic technique. The issue is whether Brown's activities
constitute chiropractic techniques, and if so, whether they are
sufficiently dangerous to warrant government regulation.
Brown seeks protection under the free exercise clause of both the
Washington State Constitution22 and the Federal Constitution. Free exercise
of religion includes both the freedom to believe and the freedom to act.23
While the former is absolute, the latter is not.24 An individual's conduct
is subject to regulation for society's protection.25 'The freedom to act
must have appropriate definition to preserve the enforcement of that
protection, and, in turn, exercise of the power to regulate must not unduly
impose on protected freedom.'26 Any burden on free exercise of religion
must withstand strict scrutiny. Once the complaining party establishes
that government action has a coercive effect on his or her practice of
religion, the government must show that the restrictions serve a compelling
state interest and are the least restrictive means for achieving that
interest.27 Compelling interests are those based upon the necessities of
national or community life such as threats to public health, peace, and
welfare.28
An individual engaging in a commercial activity must adhere to health
and safety regulations that support the compelling interest in protecting
the public, even if this results in a burden on the individual's freedom of
religion.29 In State v. Verbon,30 the Supreme Court held that prosecuting a
preacher for practicing medicine without a license did not violate his
constitutional right to religious freedom. Brown argues that Verbon is
distinguishable because Verbon's practice of medicine was merely a tenet of
the church and not one of its sacraments. We find this assertion
unpersuasive because Brown's conduct involves chiropractic procedure. Like
Verbon, Brown was engaged in the practice of medicine in violation of the
law because he performed chiropractic treatments without a license. Brown
would not be prohibited from performing the procedure so long as he was
licensed and followed the law. Because he has available an avenue to
resume performing this alignment, his freedom to practice his religion is
not significantly burdened.
In Backlund v. Board of Commissioners,31 the Supreme Court concluded that
there is a compelling interest in the requirement that physicians purchase
professional liability insurance which overrides a physician's religious
beliefs. Brown argues that Backlund is distinguishable because the doctor
had a choice of not working at a particular hospital, and thus the hospital
did not infringe on his religious beliefs. We find this argument
unpersuasive because it is not part of the court's decision. The Backlund
court held that there was a compelling government interest in requiring
Backlund to purchase liability insurance. As in this case, it only needed
to reach this issue if it concluded that his religious beliefs were
burdened.
Here, the Commission found the government interest in protecting the public
from Brown's dangerous practices compelling, and we agree. Even
acknowledging that Brown has a sincere religious belief and that the
Commission's order is a burden on the free exercise of religion, the
government has a compelling interest in protecting its citizens from the
kind of dangerous practice that caused Patient A's stroke. The trial court
properly affirmed the Commission's order.
Affirmed.
For the Court:
1 (Emphasis added.)
2 RCW 18.130.050(2) provides:
The disciplining authority has the following authority:
. . . .
(2) To investigate all complaints or reports of unprofessional conduct as
defined in this chapter and to hold hearings as provided in this chapter{.}
3 537 N.E.2d 1216 (Mass. 1989).
4 Id. at 1218 (quoting Mass. Gen. Laws ch. 112, sec. 5).
5 Id. at 1219.
6 Id.
7 Id. (quoting Cross v. State Board of Dental Examiners, 552 P.2d 38-41
(Colo. 1976)) (alternation in original).
8 545 A.2d 1080 (Conn. 1988).
9 Conn. Gen. Stat. sec. 19a-88(f) (1987).
10 Wang, 537 N.E.2d at 1219 (quoting Mass. Gen. Laws ch. 112, sec. 2).
11 See RCW 43.70.280; RCW 18.122.140; WAC 246-12-040.
12 Clausing v. State, 90 Wn. App. 863, 870, 955 P.2d 394, review denied, 136
Wn.2d 1020 (1998).
13 See RCW 34.05.461(5); WAC 246-10-117; Wash. Med. Disciplinary Bd. v.
Johnston, 99 Wn.2d 466, 482, 663 P.2d 457 (1983); In re Discipline of
Brown, 94 Wn. App. 7, 13-14, 972 P.2d 101, review denied, 138 Wn.2d 1010
(1999).
14 Clausing, 90 Wn. App. at 871 (quoting Olmstead v. Dep't of Health, Med.
Section, 61 Wn. App. 888, 893, 812 P.2d 527 (1991)).
15 99 Wn.2d 466, 482, 663 P.2d 457 (1983).
16 Id. (citation omitted).
17 33 Wn. App. 783, 657 P.2d 810, review denied, 99 Wn.2d 1011 (1983).
18 Id. at 785-86 (citations omitted).
19 Id.
20 Johnston, 99 Wn.2d at 482.
21 (Citations omitted.)
22 Article I, section 11 of the Washington State Constitution provides in
part:
Absolute freedom of conscience in all matters of religious sentiment,
belief and worship, shall be guaranteed to every individual, and no one
shall be molested or disturbed in person or property on account of
religion; but the liberty of conscience hereby secured shall not be so
construed as to excuse acts of licentiousness or justify practices
inconsistent with the peace and safety of the state. . . .
23 State v. Balzer, 91 Wn. App. 44, 52, 954 P.2d 931, review denied, 136
Wn.2d 1022 (1998) (citing Cantwell v. Conn., 310 U.S. 296, 303, 60 S. Ct.
900, 84 L. Ed. 1213 (1940)).
24 Id.
25 Id.
26 Id. (citing Cantwell, 310 U.S. at 304).
27 Munns v. Martin, 131 Wn.2d 192, 199, 930 P.2d 318 (1997).
28 Id. at 200 (citing First Covenant Church v. City of Seattle, 120 Wn.2d
203, 226-27, 840 P.2d 174 (1992)).
29 Balzer, 91 Wn. App. at 56 (citing Munns, 131 Wn.2d at 201).
30 167 Wash. 140, 148-49, 8 P.2d 1083 (1932).
31 106 Wn.2d 632, 724 P.2d 981 (1986), appeal dismissed, 481 U.S. 1034
(1987).
