Qualified Immunity

A question that comes up frequently is whether the subject of an investigation can sue a Department or its investigator for perceived abuses of the discipline process, whether or not discipline is ultimately administered.It typically comes up regarding the Department of Health, as employers may take issue with the allegations and may conduct its own internal investigation or place a provider on administrative leave.In the DOH context, the Department’s basic time to conduct an investigation is 170 days, then, if it proceeds with discipline, the Department’s time for disposition is 140 days. However, the WAC does not have any teeth—i.e., it does not state that the Department “shall” investigate or conclude with dispensing discipline within a certain time.As to how the investigation is conducted or the discipline dispensed, then one must consider whether the Department is shielded by governmental or qualified immunity under State and Federal law. If so, such immunity will be a complete bar to pursing a lawsuit against the Department.A less typical circumstance might be a summary suspension of one’s license that calls into question the issues of due process, notwithstanding if the Department had the authority to do so. One policy reason for qualified immunity is that the law should not discourage officials from taking prompt action to insure the public safety, which may be relevant in whether a provider is professionally competent. The doctrine of qualified immunity dictates that governmental agents who perform discretionary functions are immune from §1983 suits if their conduct is objectively reasonable when measured against clearly established law. So, in the ordinary course of an investigation, one may not be able to sue the Department or its investigator, but if so, there is a high bar to overcome.WAC 246-14-050WAC 246-14-060RCW 4.92.090Jones v. State, Dep't of Health, 170 Wn.2d 338, 355, 242 P.3d 825 (2010).