Dale E. Alsager, D.o., Phd. v. Wa State Bd Of Osteopathic Medicine
196 Wash. App. 653
| Wash. Ct. App. | 2016Background
- In 2008 the Washington Board of Osteopathic Medicine and Surgery restricted Dale Alsager from prescribing Schedule II/III controlled substances and required retraining after finding inappropriate prescribing without adequate exams.
- In 2012 the Board opened a new investigation based on a patient complaint and requested Alsager produce patient files and a written statement; Alsager sought to quash the request on constitutional grounds and did not comply.
- The investigator queried the state Prescription Monitoring Program (PMP) and obtained pharmacy records showing Alsager prescribed Schedule III drugs to patients and himself after the 2008 order; the Board obtained additional pharmacy records directly.
- The Board charged Alsager with violating the 2008 order and failing to cooperate; at the administrative hearing Alsager refused to testify or produce documents on blanket Fourth and Fifth Amendment grounds; the Board drew adverse inferences and revoked his license permanently.
- Alsager filed multiple procedural challenges (prehearing motions, UDJA declaratory action, superior court and federal actions); the appellate court consolidated appeals addressing self-incrimination, search and seizure, declaratory jurisdiction, sufficiency of findings, recusal, and authentication of records.
Issues
| Issue | Alsager's Argument | Board/State's Argument | Held |
|---|---|---|---|
| Whether disciplinary proceedings here triggered Fifth Amendment protection against compelled self-incrimination | Alsager: license revocation is quasi‑criminal; compelled testimony/production violates federal and state self‑incrimination protections | Board: disciplinary proceedings are regulatory/remedial, not criminal; Fifth Amendment does not bar civil administrative compulsion; adverse inferences allowed if supported | Held: Proceedings are civil/regulatory not criminal for Fifth Amendment purposes; Alsager’s blanket invocation was improper; Board could sanction noncompliance and draw adverse inferences supported by other evidence |
| Whether the Board’s warrantless access to PMP and pharmacy records violated Fourth Amendment or article I, §7 | Alsager: he had a protected privacy interest; warrantless searches were unconstitutional; statutes authorizing access facially invalid | Board/DOH: PMP and pharmacy recordkeeping are part of long‑standing regulatory oversight of controlled substances; expectations of privacy limited; access reasonably tailored and safeguarded | Held: No constitutionally protected privacy interest that bars reasonable oversight; search/examination of PMP/pharmacy records did not violate federal or state search protections |
| Whether the superior court erred dismissing Alsager’s UDJA declaratory suit | Alsager: UDJA available; APA review was inadequate or futile due to constitutional stakes | Board: UDJA expressly does not apply to agency action reviewable under APA; APA provides appropriate review/judicial relief | Held: UDJA was not available for agency action reviewable under APA; dismissal proper (even if excusal arguable, merits of constitutional claims fail) |
| Whether Board proceedings had other procedural errors (insufficient findings, panel member bias, unauthenticated records) | Alsager: findings insufficient to justify permanent revocation; panelist should be disqualified for geographic/pecuniary interest; PMP records unauthenticated | Board: Findings and conclusions supported by evidence; no substantial pecuniary interest shown; investigator testimony and context authenticated records; any evidentiary error harmless | Held: Findings and conclusions supported; recusal motion failed; authentication challenge, if error, was harmless given testimony and other evidence |
Key Cases Cited
- Boyd v. United States, 116 U.S. 616 (U.S. 1886) (early discussion of quasi‑criminal civil proceedings and self‑incrimination principles)
- United States v. Ward, 448 U.S. 242 (U.S. 1980) (factors to determine whether civil penalty is sufficiently criminal in nature)
- Kastigar v. United States, 406 U.S. 441 (U.S. 1972) (scope of Fifth Amendment privilege and use‑immunity principles)
- Whalen v. Roe, 429 U.S. 589 (U.S. 1977) (balancing privacy expectations against governmental interest in regulated records)
- Spevack v. Klein, 385 U.S. 511 (U.S. 1967) (threat of professional discipline and Fifth Amendment concerns)
- Nguyen v. State, Dept. of Health Med. Quality Assurance Comm’n, 144 Wn.2d 516 (Wash. 2001) (characterizing professional discipline as quasi‑criminal for due process analysis)
- Murphy v. State, 115 Wn. App. 297 (Wash. Ct. App. 2003) (limited privacy expectation in prescription records and state oversight rationale)