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Deatherage v. State

March 18, 1997


Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 91-2-03592-4. Date filed in Superior Court: 7/12/95. Superior Court Judge signing: RICHARD SCHROEDER.

State's Petition for Review Granted and Dr. Deatherage's Petition for Review Denied September 3, 1997,

Author: Frank L. Kurtz. Concurring: Dennis J. Sweeney & Philip J. Thompson

The opinion of the court was delivered by: Kurtz

KURTZ, J. -- Does the absolute immunity accorded a witness protect an expert from licensing board disciplinary proceedings? Here, the State of Washington, Examining Board of Psychology, brought such proceedings after Edward Deatherage, Ph.D., allegedly failed to meet professional ethical standards in the work that formed the basis of his testimony in several child custody disputes. Dr. Deatherage raises the immunity issue in this appeal from a superior court judgment affirming the decision of the Board to revoke his license. *fn1 We hold absolute immunity for witnesses prevents the Board from disciplining Dr. Deatherage for work that supported his testimony. We reverse the superior court on that issue. We affirm the court on other issues that involve additional charges against Dr. Deatherage.

In October 1989, the Board filed a statement of charges against Dr. Deatherage seeking revocation of his license to practice as a psychologist in the state of Washington. For purposes of this appeal, the charges, as originally filed and as amended, centered on three allegations: (1) Dr. Deatherage rendered professional opinions in certain superior court custody disputes which were biased and misleading. (2) He failed to prevent the sexual abuse of two minor children in his custody. (3) He engaged in sexual and intimate conduct with an adolescent, "Witness F," who was one of his patients.

The Board conducted an administrative hearing on these charges in April, May, and June 1991. In August 1991, the Board issued its findings, Conclusions, and order revoking Dr. Deatherage's license to practice psychology for 10 years. The Board found Dr. Deatherage stated opinions in regard to the fitness of three women as parents, in documents prepared for the court's use in custody disputes, which were based upon allegations made by the fathers that he did not verify by testing and/or interviewing the mothers. With regard to the alleged sexual abuse of the two minor children in Dr. Deatherage's care, the Board found that a hearing before the Department of Social and Health Services (DSHS) determined he was "negligent in the care and supervision [of the two children] in that he failed to protect them from exposure to sexual activity inappropriate for a three and a five year old." As a result, DSHS referred Dr. Deatherage's name for placement on the Central Registry, a list of persons known to have neglected or abused children. The Board found these facts "raise serious questions about [Dr. Deatherage's] ability to recognize child sexual abuse in his practice as a psychologist when he was unable to recognize it in his own home." The Board also found Dr. Deatherage had acted as Witness F's psychologist; Witness F resided with Dr. Deatherage from December 1984 or January 1985 through May or June 1985; and the two shared a bed and engaged in intimate sexual contact.

The Board concluded the foregoing conduct constituted moral turpitude relating to the practice of psychology, and/or incompetence and negligence. The Board also concluded the conduct was grounds for discipline under former RCW 18.83.120, *fn2 which was in effect at the time of the events in question and applied to the proceeding against Dr. Deatherage pursuant to RCW 18.130.900.

First, did the Board err when it considered as grounds for discipline, custody evaluations prepared by Dr. Deatherage for use in superior court family law matters? Dr. Deatherage contends the absolute immunity accorded to witnesses includes immunity from disciplinary action based upon the evaluations he prepared in his role as an expert witness in the custody cases. On August 20, 1990, the Board filed an amended statement of charges against Dr. Deatherage charging that he had rendered opinions in reports used in three different court custody matters which were biased and based on insufficient, unverified evidence.

Dr. Deatherage moved to dismiss the above-mentioned charges as barred by the absolute immunity from suit accorded a witness in a judicial proceeding, relying upon Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wash. 2d 123, 776 P.2d 666 (1989). There, the Washington Supreme Court held the plaintiffs could not sue an expert witness, who had testified in their behalf in a damage action, for negligently computing their losses at only one-half of what they ultimately proved to be. The court stated: "the immunity of expert witnesses extends not only to their testimony, but also to acts and communications which occur in connection with the preparation of that testimony." Bruce, 113 Wash. 2d at 136.

As Bruce recognized, the rule that witnesses in judicial proceedings are absolutely immune from lawsuits based upon their testimony is well established in American common law. See Bruce, 113 Wash. 2d at 125, and cases cited therein. The rule's purpose is to encourage full and frank testimony and thereby preserve the integrity of the judicial process. Bruce, 113 Wash. 2d at 126. If a witness fears subsequent liability for damages, he or she may be reluctant to testify, or may shade his or her testimony in favor of the potential plaintiff. Bruce, 113 Wash. 2d at 126 (citing Briscoe v. LaHue, 460 U.S. 325, 332-33, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983)). "The rule also rests on the safeguards against false or inaccurate testimony which inhere in the judicial process itself." Bruce, 113 Wash. 2d at 126. Safeguards that foster witness reliability include the witness's oath, the right of the opposing party to cross-examine the witness and bring out any weakness in the testimony, and the ability of the State to charge perjury if a witness testifies falsely. Bruce, 113 Wash. 2d at 126.

The rationale behind the witness immunity rule has equal applicability to disciplinary proceedings. An expert witness serves the court as the admissibility of expert testimony is based in part on the court's decision that it will assist the trier of fact. Bruce, 113 Wash. 2d at 130. Fear of disciplinary proceedings may undermine the effectiveness of an expert's assistance to the trier of fact. The detriment to encouraging full and frank testimony, occasioned by making expert witnesses subject to professional disciplinary proceedings, outweighs the interest of the State disciplinary board in policing individual practitioners for conduct related to their testimony. Further, the safeguards that foster witness reliability are similar, no matter whether the issue is immunity from disciplinary proceedings or immunity from a lawsuit. We, therefore, hold Dr. Deatherage is absolutely immune from professional discipline for any charges arising from his testimony as an expert witness in the child custody disputes listed above. The Board erred when it disciplined him on that basis.

Second, was the Board's consideration of Exhibit 1, DSHS's decision to place Dr. Deatherage on the State's Central Registry for child neglect, improper? Specifically, was the document relevant to the issue before the Board, and, should DSHS have sealed the document pursuant to former WAC 388-15-136(5) because six years had passed without a subsequent complaint.

On March 21 1991, the Board filed a second amended statement of charges against Dr. Deatherage. The statement charged further unethical conduct by Dr. Deatherage, and referenced the findings, Conclusions and decision of DSHS that he had neglected two minor children who lived in his home in the early 1980s. Both of the children had lived with Dr. Deatherage since their births.

DSHS's documents relating to this charge became Exhibit 1 in the disciplinary proceedings. In summary, they indicate Dr. Deatherage had a habit of permitting various individuals, many of them patients, to reside in his home. One of these persons was the young man who fathered the two children that were the subject of DSHS's investigation. Dr. Deatherage eventually obtained legal custody of the children. In 1984, the children's preschool reported to DSHS that they exhibited certain behavior which indicated possible sexual abuse. During interviews, both children stated Dr. Deatherage had touched them inappropriately. Dr. Deatherage relinquished custody, and a subsequent dependency action concluded the parents had neglected the children by failing to prevent the alleged sexual abuse.

Following the dependency determination, DSHS notified Dr. Deatherage it was referring his name to the Central Registry for reported incidents of child abuse. Dr. Deatherage challenged that decision and submitted to a psychological evaluation which concluded he probably had not abused the children. DSHS found it was unlikely he was the abuser. Nonetheless, it determined he neglected the children by failing to prioritize their safety and welfare above those of adults who also resided in his home during the time the children were there. For this reason, DSHS refused to change its decision and referred Dr. Deatherage's name to the Central Registry as of October 28, 1985, based upon neglect.

At the licensing board hearing, Dr. Deatherage moved to dismiss the charge that his conduct respecting the above minors evidenced moral turpitude in the practice of psychology. He argued unsuccessfully the conduct was irrelevant to the disciplinary proceedings. We agree with the Board's ruling that the information contained in Exhibit 1 was relevant. Under former RCW 18.83.120(1), "any act involving moral turpitude . . . relating to the practice of psychology" was grounds for discipline. As stated by the Board, the exhibit raised serious questions about Dr. Deatherage's ability to recognize child sexual abuse in his practice when he did not recognize it in his own home.

Dr. Deatherage also contended DSHS should have sealed the information in the Registry, pursuant to former WAC 388-15-136(5), because more than six years had passed without a subsequent report. The cited provision requires sealing of the information six years from the date of the last filed report. Dr. Deatherage counts the six years as commencing when DSHS notified him of its decision to refer his name to the Registry--July 18, 1984. But DSHS did not actually make the reference until October 1985, following the hearing at which Dr. Deatherage disputed DSHS's decision. The ...

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