Department of Health bears the burden of proof, but standards are uncertain

Whenever the Department of Health issues a Statement of Charges alleging unprofessional conduct by a licensed healthcare provider, the Department bears the burden of proving its allegations. The Washington Supreme Court has held that the standard of proof in disciplinary proceedings against physicians is proof by clear and convincing evidence. Nguyen v. Department of Health.   In 2006, the Washington Supreme Court extended the Nguyen holding to all professional disciplinary proceedings. Ongom v. Department of Health. In 2011, the Washington Supreme Court overruled Ongom, but declined to overrule Nguyen. Hardee v. Department of Social and Health Services. (The license at issue in Hardee was a home childcare license, which is arguably not a “professional” license.) As a result, there is uncertainty regarding the Department’s burden of proof in disciplinary proceedings against non-physician professionals.Experienced attorneys and judges have difficulty articulating the precise difference between these two standards, but it suffices to state that the clear and convincing standard imposes a higher burden of proof than the preponderance standard so. Thus, a licensee having to defend against charges of unprofessional conduct would prefer that the Department be required to prove its charges by clear and convincing evidence.Given the legal uncertainty regarding the standard of proof, Health Law Judges (HLJs) will commonly evaluate evidence under both the clear and convincing standard, as well as the preponderance of the evidence standard. I am only aware of administrative decisions in which the HLJ either determines that the Department has not proven its charges by a preponderance of the evidence (in which case the Department could not have met the higher burden of proof), or in which the HLJ determines that the Department proved its charges by clear and convincing evidence (which subsumes proof by a preponderance). But, in my practice, I have never seen an order in which the HLJ determines that the Department has proven its charges by preponderance of the evidence, but not by clear and convincing evidence.If I were to receive such an order in one of my client’s professional licensure cases, and it concluded that as a matter of law the Department had not met its burden for purposes of imposing sanctions against a healthcare license, I would expect the Department to seek judicial review of the decision. Were such a case to reach the appellate level, the court might have to make an explicit distinction between professional and non-professional licensure cases with respect to the applicable standard of proof. It would be interesting to see what the court would base such a distinction on.