Court makes nurse aide licenses harder to revoke

Published 9:00 pm Thursday, December 14, 2006

OLYMPIA – The state must show a higher standard of proof to revoke or suspend the license of nursing assistants, the state Supreme Court ruled Thursday in a sharply divided decision.

In a 5-4 decision written by Justice Richard Sanders, the majority ruled that Alice Ongom’s nursing assistant registration was wrongly suspended for the alleged abuse of an Alzheimer’s patient in 2001.

The court reversed the decision, “holding due process requires clear, cogent, and convincing proof.”

In making its decision, the majority referred to the precedent it set with a 2001 ruling in Bang Nguyen v. Department of Health, in which they ruled that for professional disciplinary hearings, due process requires clear and convincing proof.

In that case, the court was reviewing whether the license of Dr. Bang D. Nguyen of Seattle – who was accused of probation violations and sexual misconduct – was properly revoked.

The dissent argues that the high court’s ruling on Nguyen was flawed and should be thrown out.

Justice Susan Owens wrote that she would affirm Ongom’s license suspension and overrule the Nguyen case “and hold that the constitutionally required standard of proof in registered nursing assistant disciplinary proceedings is preponderance of the evidence” – basically a lesser burden of proof.

In her dissent, Justice Barbara Madsen agreed, saying that as a result of the Nguyen ruling, “some of this state’s most vulnerable citizens are now even more at risk for abuse.”

“Instead of protecting these vulnerable citizens, the majority of the court tips the balance of protection in favor of the licensee and against these vulnerable citizens,” wrote Madsen, who noted that even though she voted with the majority in the prior Nguyen ruling, she now believes it was wrongly decided on the law.

“And, its application in this case makes clear that it is also harmful and should be overruled.”

Alice Ongom was a nursing assistant at the Woodmark Retirement Home in Federal Way. She was accused of throwing a cup or dish at a resident, as well as slapping her on the hands several times and kicking her. There were conflicting witness statements as to whether Ongom assaulted the woman, but the Department of Health investigation found that even though there was not “clear and convincing evidence,” a preponderance of the evidence existed, as required by the Washington Administrative Code, and Ongom’s license was suspended for two years.

The high court said that section of the Washington Administrative Code is invalid and that the higher burden of proof must be used in these cases.

The attorney general’s office, which argued the case before the high court, disagreed with the majority’s decision to require a higher burden of proof.

“The preponderance of the evidence standard is used routinely by the courts to resolve significant claims, and it was appropriate to apply it in this case,” spokeswoman Janelle Guthrie said.

Laurie Jinkins, assistant secretary for the state Department of Health, said that in situations where there are few witnesses, like sexual assault, the higher burden will make it more difficult for investigators.

“It makes it harder for us to protect patients,” she said.

Ongom’s attorney, Claudia Kilbreath, said that a higher standard of proof just requires that the state does a thorough investigation.

“You can’t assume just because the standard is higher, people will be abused more,” she said.