Adam Lee Gardner Sr., Appellant V. State Of Wa Department Of Health, Respondent

* The Honorable George Fearing is a Court of Appeals, Division Three, judge sitting in
Division One pursuant to CAR 21(a).
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ADAM LEE GARDNER SR.,
Appellant,
v.
STATE OF WASHINGTON
DEPARTMENT OF HEALTH,
Respondent.
No. 86965-5-I
DIVISION ONE
UNPUBLISHED OPINION
FEARING, J.*—Dr. Adam Gardner appeals the Washington State
Department of Health’s (DOH’s) suspension of his license to practice
acupuncture and Eastern medicine because of sexual contact with a patient. He
asks that we renounce the credibility of the complainant based on her purported
selective memory, internally contradictory accounts, testimony controverting
testimony of other witnesses, and testimony of impossibilities. Because the
underpinnings of Dr. Gardner’s appeal violate the bedrock principle that
reviewing courts do not evaluate anew the credibility of witnesses, we reject his
arguments and affirm the licensure suspension.
FACTS
This appeal arises from DOH’s discipline of Dr. Adam Gardner for sexually

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assaulting an acupuncture patient. We refer to the patient as Patient A. Dr.
Gardner holds a Washington State naturopathic doctor license and a separate
license as an acupuncturist and Eastern medicine specialist. The disciplinary
proceeding only concerns his acupuncturist license. Dr. Gardner began work at
the Integrative Injury Clinic (IIC) in 2018. IIC provides naturopath, acupuncture,
and physical therapy services.
We base our facts on the testimony of numerous witnesses during a July
2023 Department of Health disciplinary hearing. We particularly focus on the
testimony of Patient A since this court views the evidence and its reasonable
inferences in the light most favorable to the prevailing party. Johnson v.
Department of Health, 133 Wn. App. 403, 411, 136 P.3d 760 (2006). Our later
analysis responds to Dr. Adam Gardner’s extensive attack on the testimony of
Patient A.
In January 2020, Patient A sought treatment at IIC due to injuries from a
car accident. She experienced pain in her upper back, lower back, and neck. At
IIC, Dr. Adam Gardner administered acupuncture and massage treatments to
Patient A on January 28, February 11, and February 12, 2020. Patient A alleged
Dr. Gardner sexually assaulted her on the last two appointments.
On January 28, 2020, according to Patient A, nothing “unusual” occurred
during the acupuncture appointment. Administrative Record (AR) at 807. During
treatment, on February 11, 2020, Patient A undressed down to her bra and
underwear. She asked Dr. Gardner if she should remove her bra. Gardner
responded in the affirmative and unclipped Patient A’s bra. He intended to

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needle her pectoral region to alleviate upper back pain. Patient A held onto the
bra and asked Dr. Gardner to excuse himself from the room before she removed
the bra. Gardner complied. Patient A removed the bra and laid face down with a
drape covering her.
According to the testimony of Patient A, when Dr. Adam Gardner returned
to the treatment room, he inserted acupuncture needles into her skin, including at
the hips. While doing so, Dr. Gardner raised Patient A’s leg and placed her shin
against his groin. The doctor then massaged a hip with his hand and placed his
fingers between her buttocks. When doing so, he extended his fingers and
touched Patient A’s labia. Patient A made no comment then to Dr. Gardner. She
did not discuss the touching with anyone else that day.
According to Patient A’s testimony, she returned, based on Dr. Gardner’s
recommendation, for treatment on February 12. The treatment proceeded
similarly to the day before. At the same time as the doctor inserted needles into
the hip of Patient A, he massaged her perineum area. Gardner placed his thumb
on her hip and four fingers between her buttocks. One or more fingers extended
to her labia.
At the end of the session, Patient A lay on her back at the instruction of
Dr. Gardner. Gardner abruptly and without warning removed the drape covering
her. Gardner placed one hand on top and one hand at the bottom of an exposed
breast, and he cupped the breast. He repeated this action with the other breast.
After the February 12 treatment from Dr. Gardner, Patient A visited her
therapist. During the appointment, she told the therapist of feeling uncomfortable

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when Dr. Gardner massaged her hip. She also told the therapist about her shock
when Dr. Gardner exposed and placed his hands on her breasts. The therapist
advised Patient A that Dr. Gardner had sexually assaulted her.
According to Patient A, she telephoned two or three other acupuncturists
and asked if Dr. Gardner’s touching of her was normal for the profession. One
acupuncturist replied: “absolutely not.” AR at 874.
Patient A testified that, after she spoke with her therapist, she met with IIC
chiropractor Daniel Brennan and physical therapist assistant Petrina Chase.
While crying, Patient A asserted that Dr. Gardner had sexually assaulted her.
She described some of his conduct. Dr. Brennan indicated he would inform IIC’s
owners of the allegation.
Dr. Dan Brennan testified at the DOH hearing about the meeting with
Patient A:
I remember that she was clearly upset, and when you’re
upset, communication isn’t the most clear and concise. I just
remember being very attentive and listening and just trying to
understand what was going on.
AR at 1046. Brennan did not remember specifics of the conversation. According
to Brennan, Patient A commented that Dr. Gardner inappropriately touched her,
but her explanations did not lead him to conclude Dr. Gardner engaged in any
misconduct. Dr. Brennan wondered about the possibility of a “miscommunication
or misunderstanding” between Patient A and Dr. Gardner. AR at 1049.
Petrina Chase testified at the DOH hearing that Patient A, during the
conference with Dr. Brennan and her, questioned the appropriateness of

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Dr. Gardner’s behavior. Patient A recounted that Dr. Gardner had touched her
past her underwear and needled her hips. The touching progressively worsened
during the last visits. Patient A added that she did not wish treatment from Dr.
Gardner anymore. Despite hearing Patient A’s account of the sexual assaults,
Chase lacked any concern about patients being treated by Dr. Gardner. Chase
testified:
I have been treated by [Dr. Gardner] and I know what the
treatment session looks like, and I felt because of [Patient A’s] past
behavior with me that maybe she was over-exaggerated [sic] what
had happened based on what she told me.
AR at 1064.
On February 12, 2020, Patient A filed a complaint against Dr. Adam
Gardner with the Tukwila Police Department. Tukwila Police Officer Aaron
Zwicky wrote in a report that
[Patient A] stated in the initial report to Tukwila Officers that
while receiving treatment, Dr. Gardner touched her vagina over her
underwear without penetration . . . [She] also stated while
Dr. Gardner was manipulating her leg; he pressed against her leg
with his groin area . . . [She] felt that this was inappropriate.
AR at 1202. Tukwila Officer James Thompson concluded that law enforcement
lacked probable cause to file criminal charges against Dr. Gardner.
Also on February 12, 2020, the co-owners of IIC, Drs. Michael and Brian
Chan, spoke with Patient A on the phone. Patient A testified at the DOH hearing
that she did not remember the specific questions asked by the Chans. She
concluded during the call, however, that the Chans did not fully believe her.
Dr. Michael Chan testified at the hearing that Patient A complained that

No. 84955-7-I
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Dr. Adam Gardner inappropriately touched her. At the same time, Patient A
wondered if her accusation was a “big misunderstanding.” AR at 1091.
According to Chan, IIC takes similar allegations seriously, so it decided to
conduct a thorough investigation.
Drs. Michael and Brian Chan interviewed Dr. Gardner for 90 minutes. The
two owners adopted Dr. Gardner’s account and concluded Dr. Gardner engaged
in no misconduct. Thereafter, Patient A opted to continue treatment at IIC but
only went to the clinic in Dr. Gardner’s absence.
PROCEDURE
In April 2020, DOH sent Dr. Adam Gardner a letter announcing an
investigation against him and requesting records from him. Dr. Gardner provided
a written response that denied the allegations.
In May 2022, DOH and the Acupuncture and Eastern Medicine Program
jointly filed a statement of charges against Dr. Gardner. We refer to both entities
as DOH in this opinion. DOH alleged Dr. Gardner committed unprofessional
conduct in violation of RCW 18.130.180(7), (24) and WAC 246-16-100(1)(b) and
(j). DOH accused Dr. Gardner of touching Patient A’s genitals on February 11,
2020, and touching Patient A’s genitals and breasts on February 12, 2020.
In July 2023, DOH’s Adjudicative Service Unit held a two-day hearing
before Presiding Officer John Kuntz. Presiding Officer Kuntz heard testimony
from nine witnesses: Patient A, DOH Investigator Mathias Krause, Dr. Adam
Gardner, Police Officer James Thompson, Dr. Daniel Brennan, Petrina Chase,
IIC receptionist Nicole Guerrero, Dr. Michael Chan, and Cindy Mahedy, who

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treated Patient A after she left the care of Adam Gardner.
Presiding Officer John Kuntz also reviewed the videotape deposition of
Dr. Gardner’s expert witness, Dr. Derek Kirkham. Dr. Kirkham is a licensed
acupuncturist and an instructor at Kenmore’s Bastyr University, an alternative
medical school. Adam Gardner attended the school. Dr. Kirkham conducted two
interviews of Dr. Gardner and reviewed an interview with Dr. Gardner’s
employers, chart notes for the three visits with Patient A, questions from DOH
answered by Dr. Gardner, and exhibits submitted by Dr. Gardner.
In his deposition, Dr. Derek Kirkham repeatedly opined that Dr. Adam
Gardner acted within his scope of practice and met the standard of care of the
profession. In particular, Dr. Gardner’s “draping” procedures met the standards
of procedure and care.
In August 2023, DOH Presiding Officer John Kuntz issued his initial order,
in which he found Dr. Adam Gardner committed unprofessional conduct.
The order’s findings of fact read, in part:
1.5 On February 11, 2020, Patient A returned for her
second acupuncture treatment with the Respondent [Dr. Adam
Gardner]. Patient A was wearing a bra and underwear. When she
was lying face down the Respondent unhooked her bra without
permission. While inserting the acupuncture needles in Patient A’s
hips as part of the treatment process, the Respondent also moved
her underwear without her permission. The Respondent then
inserted his fingers into Patient A’s gluteal cleft (which she
described as her butt cheeks) as well as touching her labia. . .
Patient A did not confront the Respondent regarding his conduct
following this treatment session.
1.6 Despite her discomfort with how the Respondent
touched her during the February 11, 2020, session, Patient A
scheduled an additional treatment with the Respondent for the next

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day on February 12, 2020, at the Integrative Injury Clinic's Skyway
location. Patient A again remembers the Respondent engaged in
the same conduct during this appointment, that is moving her
underwear without permission and inserting his fingers in her
gluteal cleft and touching her labia.
1.7 Patient A specifically requested treatment on her upper
chest/pectoral muscles. When a patient goes from a face down to
a face up position, the practitioner should “tent” or hold the
drape/sheet covering the patient to prevent seeing the semidressed
or undressed patient. The Respondent failed to properly “tent” the
drape or sheet as required to avoiding any exposure of Patient A's
body. So, when Patient A moved into the face up position, the
Respondent moved the draping in such a way that it exposed her
breasts. The Respondent then dry needled Patient A’s pectoral
muscle area to address Patient A’s treatment request.
AR at 676-78. The findings recounted that Patient A relayed Dr. Gardner’s
behavior to her counselor, other acupuncturists, and her attorney. All these
contacts, according to the findings, confirmed that Dr. Gardner’s touching did not
fall under the confines of acupuncture and therefore was inappropriate.
The presiding officer’s findings of fact discussed the credibility of
witnesses.
1.15 Credibility Findings. While several investigations were
conducted in this matter, including interviews with several
Integrative Injury Clinic witnesses/employees shortly after the
event, the key fact is that neither the parties who conducted the
investigation nor any of the witnesses/employees who testified in
these investigations were present in the treatment room while the
Respondent treated Patient A. For this reason, the resolution of
this matter rests on the credibility of these two individuals (the
Respondent and Patient A).
The Respondent denied and continues to deny that he
committed unprofessional conduct while providing acupuncture
services to Patient A. Based on the totality of the evidence, the
Presiding Officer finds that Patient A's testimony regarding what
occurred here should be given greater weight than the
Respondent’s denials. Patient A immediately reported the
Respondent’s conduct to the clinic owners and to the Tukwila
Police. She has consistently reported the key facts throughout the
various investigations…. 	These facts support Patient A’s

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credibility over that of the Respondent.
AR at 681.
The DOH initial order suspended Dr. Gardner’s credentials to practice as
an acupuncturist and Eastern medicine practitioner for three years. The order
also required him to undergo a psycho-sexual evaluation before any
reinstatement request.
In August 2023, Dr. Gardner petitioned the Secretary of Health for review
of the presiding officer’s initial order. The Secretary’s Reviewing Officer issued a
final order that affirmed the initial order. The final order adopted the initial order’s
findings of fact and conclusions of law. The final order declared, in part:
The Presiding Officer found Patient A’s admission that she
consistently described events . . . and the record demonstrates a
clear basis for these credibility findings and the Review Officer will
not disturb them.
AR at 774.
Dr. Adam Gardner petitioned the superior court for judicial review of
DOH’s final order. The superior court certified the case for direct review by this
court.
LAW AND ANALYSIS
Dr. Adam Gardner’s appeal focuses on facts, not law. Gardner
challenges numerous findings of fact entered by the DOH presiding officer and
affirmed by the reviewing officer. In challenging the findings, Gardner challenges
us to become experts in memory, sexual trauma, time management,
communication logic, and human anatomy.

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Disciplinary Act
We review the health care practitioner disciplinary act and the
Administrative Procedure Act (APA), chapter 34.05 RCW, before we discuss
whether to sustain the challenged findings. Chapter 18.06 RCW governs the
licensure of any acupuncturist and Eastern medicine practitioner. RCW
18.06.020. Chapter 18.130 RCW, the Uniform Disciplinary Act (UDA), governs
the disciplining of health care professional license holders. RCW 18.06.110
designates the Secretary of Health as the disciplining authority under the UDA.
The UDA bars unprofessional conduct as defined within RCW 18.130.180.
This statute’s subsections list conduct defined as unprofessional, including
sexual contact with a patient. In the proceeding against Dr. Adam Gardner, DOH
relies on the following subsections, which prohibit:
(7) Violation of any state or federal statute or administrative
rule regulating the profession in question, including any statute or
rule defining or establishing standards of patient care or
professional conduct or practice;
. . . .
(23) Abuse of a client or patient or sexual contact with a
client or patient.
The Washington Administrative Code (WAC) defines certain acts of
unprofessional conduct for health care providers, including acupuncturists. RCW
18.130.040(2)(a); WAC 246-16-010. WAC 246-16.100 addresses sexual
misconduct. The regulation declares in part:
(1) A health care provider shall not engage, or attempt to
engage, in sexual misconduct with a current patient, client, or key
party, inside or outside the health care setting. Sexual misconduct
shall constitute grounds for disciplinary action. Sexual misconduct

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includes but is not limited to:
. . . .
(b) Touching the breasts, genitals, anus or any sexualized
body part except as consistent with accepted community standards
of practice for examination, diagnosis and treatment and within the
health care practitioner's scope of practice;
. . . .
(j) Removing patient or client's clothing or gown or draping
without consent, emergent medical necessity or being in a custodial
setting.
RCW 18.130.100 states that the APA governs all hearings before the
disciplinary authority. Bang Nguyen v. Department of Health Medical Quality
Assurance Commission, 144 Wn.2d 516, 521, 29 P.3d 689 (2001). Under the
APA, the burden of demonstrating the invalidity of agency action falls on the
party asserting invalidity. RCW 34.05.570(1)(a).
The court shall grant relief from an agency order in an adjudicative
proceeding only for enumerated reasons within the APA. RCW 34.05.570(3).
These reasons include when the agency erroneously interpreted or applied the
law, substantial evidence when viewing the whole record fails to support the
order, and the order is arbitrary and capricious. RCW 34.05.570(3)(d)-(e),(i). Dr.
Adam Gardner relies on all three of these grounds, although each challenge
focuses on the sufficiency of evidence.
Substantial Evidence
Dr. Gardner asserts, under RCW 34.05.570(3)(e), that substantial
evidence does not support numerous findings of fact adopted by the final order.
We outline familiar principles of law attended to appellate review of findings. In
analyzing the sufficiency of evidence, we agree with Gardner that DOH needed

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to demonstrate its case by clear and convincing evidence. When a licensing
board jeopardizes a professional license, such as a medical license, the United
States Constitution’s due process clause demands that the agency support its
decision by clear and convincing evidence. Bang Nguyen v. Medical Quality
Assurance Commission, 144 Wn.2d 516, 529, 29 P.3d 689 (2001); Wilkinson v.
Washington Med. Commission, __ Wn. App.2d ___, ___, 576 P.3d 1191, 1209-
10 (2025). The presiding officer based the challenged findings on clear and
convincing evidence.
In reviewing challenged findings under RCW 34.05.570(3)(e), substantial
evidence persuades a fair-minded person of the truth or correctness of the fact.
Bowers v. Pollution Control Hearings Board, 103 Wn. App. 587, 596, 13 P.3d
1076 (2000). Our task of assessing substantial evidence demands that we
examine the whole record. Crosswhite v. Department of Social & Health
Services, 197 Wn. App. 539, 548, 389 P.3d 731 (2017).
We defer to the factfinder under the substantial evidence standard. Arco
Products Co. v. Utilities & Transportation Commission, 125 Wn.2d 805, 812-13,
888 P.2d 728 (1995); PacifiCorp v. Wash. Utilities & Transportation Commission,
194 Wn. App. 571, 586, 376 P.3d 389 (2016). We view the evidence and any
reasonable inferences in the light most favorable to the party that prevailed in the
highest forum exercising fact finding authority. Schofield v. Spokane County, 96
Wn. App. 581, 586, 980 P.2d 277 (1999). We neither weigh credibility nor
substitute our judgment for that of the agency. Bowers v. Pollution Control
Hearings Board, 103 Wn. App. 587, 596 (2000). The last principle weighs

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heavily in this appeal.
Contradictory evidence in the record does not render the agency’s
determination unsupported by substantial evidence. PacifiCorp v. Wash. Utilities
& Transportation Commission, 194 Wn. App. 571, 598 (2016). Ordinarily, the
testimony of a single credible witness can qualify as clear and convincing
evidence, even if other witnesses’ testimony contradicts the witness’ testimony.
In re Marriage of Schwarz, 192 Wn. App. 180, 214, 368 P.3d 173 (2016). The
factfinder may disregard testimony deemed not credible. Dalton v. State, 130
Wn. App. 653, 667, 124 P.3d 305 (2005).
The presiding officer deemed Patient A’s testimony credible in part
because of the purported internal substantive consistency of that testimony. In
turn, Dr. Adam Gardner contends that this reviewing court should not defer to the
credibility finding of the presiding officer when based on the ostensible uniformity
of Patient A’s description of the sexual assault. He relies on Chandler v. Office of
the Insurance Commissioner, 141 Wn. App. 639, 173 P.3d 275 (2007) for this
contention. We disagree. The Chandler rule only applies in the narrow situation
when a reviewing officer disagrees with the presiding officer’s credibility
determinations. Here, the reviewing officer affirmed the presiding officer.
This court wrote in Chandler v. Office of the Insurance Commissioner:
It is difficult to determine whether the Review Judge was
justified in rejecting the ALJ’s evaluation of Betty Husby’s
testimony. A Review Judge may substitute his or her findings for
those of the ALJ, but she cannot reject credibility determinations
without substantial evidence to the contrary in the record. While we
cannot determine what documents Betty Husby signed or whether
or not Chandler spoke to her in offensive terms during their

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interaction, we note that the ALJ rejected her testimony because it
was inconsistent, not because her demeanor was untrustworthy or
unreliable. Like the Review Judge, we can look at the record to
determine whether her testimony was substantively consistent. As
such, the ALJ was not making a true credibility determination. We
agree with the Review Judge that Ms. Husby’s testimony was
consistent throughout. The ALJ rejected it for an unsupported
reason, so the Review Judge could properly rely on it. Her
testimony is substantial evidence of Chandler's improper conduct.
141 Wn. App. 639, 657 (2007) (emphasis added). This court’s ruling in Chandler
coincided with the dictates of RCW 34.05.464(4), which declares:
The reviewing officer shall exercise all the decision-making
power that the reviewing officer would have had to decide and enter
the final order had the reviewing officer presided over the hearing
and in reviewing findings of fact by presiding officers, the reviewing
officer shall give due regard to the presiding officer's opportunity to
observe the witnesses.
(Emphasis added).
We defer to the presiding officer’s credibility assessments in part because
of the officer’s personal observation of witnesses. RCW 34.05.464(4); Peterson
v. Department of Social and Health Services, 28 Wn. App. 2d 16, 20-21, 534
P.3d 869 (2023); Kraft v. Department of Social and Health Services, 145 Wn.
App. 708, 717, 187 P.3d 798 (2008). The earnestness of a witness influences
her credibility and the DOH presiding officer could have viewed Patient A as a
genuine, forthright, and highly credible individual.
Dr. Adam Gardner principally challenges the findings of fact that declared
he unhooked Patient A’s bra, moved her underwear, inserted his fingers into her
gluteal cleft, and touched her labia on February 11, 2020. The presiding officer
primarily based the conclusion of unprofessional conduct on these four findings.

No. 84955-7-I
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At the hearing before the presiding officer, Patient A testified Dr. Gardner
committed all four of these acts. Proof by clear and convincing evidence denotes
a quantum or degree of proof greater than a mere preponderance of the
evidence, but something less than proof beyond a reasonable doubt. In re
Deming, 108 Wn.2d 82, 109, 736 P.2d 639 (1987). Evidence clearly and
convincingly establishes a proposition if it makes the proposition “highly
probable.” In re Marriage of Schweitzer, 132 Wn.2d 318, 329, 937 P.2d 1062
(1997). Ordinarily, the testimony of a single credible witness can qualify as clear
and convincing evidence, even if the witness's testimony is contradicted by other
witnesses. Schwarz v. Schwarz, 192 Wn. App. 180, 214, 368 P.3d 173, 190
(2016). Thus, Patient A’s testimony by itself satisfies the clear and convincing
standard.
Dr. Adam Gardner nonetheless insists Patient A reported differing
accounts to Dr. Daniel Brennan, Petrina Chase, Dr. Michael Chan, and the
Tukwila Officer Aaron Zwicky. But Gardner’s insistence assumes that each of
the other witnesses testified accurately as to the details reported to each by
Patient A. Dr. Gardner’s witnesses might have inaccurately remembered the
narrative provided by Patient A or, in order to assist Gardner, fine-tuned their
testimony favorably toward him. Thus, we cannot be assured that versions of
events related to others by Patient A differed. None of the other witnesses
percipiently observed the treatment of Dr. Gardner of Patient A.
In addition to Patient A testifying three years after the events, Dr.
Gardner’s witnesses testified three years later. In his testimony, Daniel Brennan

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conceded he recalled few details of his conversation with Patient A on February
12, 2020.
Dr. Adam Gardner’s principal criticism--that Patient A told differing
accounts of the sexual assaults to various third parties--also wrongly assumes
that a victim of misconduct, to credibly report misbehavior, must provide precisely
the same details each time he or she relates the behavior of the wrongdoer.
Psychology teaches that the victim will recall some details during one description
of the event and forget those details during another description of the event when
she recalls other details.
Any change in Patient A’s account from one listener to another reflects a
common occurrence among victims of sexual harassment or assault. Because of
the shock, if not trauma, victims may provide incomplete or inconsistent accounts
of a sexual assault. Still, the victim in general gives a true report. K IMBERLY A.
L ONSWAY & JOANNE A RCHAMBAULT, E ND V IOLENCE A GAINST W OMEN I NTERNATIONAL ,
I NCOMPLETE , I NCONSISTENT, AND UNTRUE S TATEMENTS MADE BY
V ICTIMS : UNDERSTANDING THE CAUSES AND O VERCOMING THE CHALLENGES
(updated Aug. 2020), https://evawintl.org/wp-content/uploads/2008-08_TB-
Victim-Statements-.pdf.
Studies show survivors lack clarity about the details of their assault.
They may be unable to explain what happened in a linear way. Believing
Survivors and Breaking Myths, K ING COUNTY S EXUAL A SSAULT RESOURCE CENTER
(February 29, 2024), https://www.kcsarc.org/en/believing-survivors-and-breaking-

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myths. Gardner’s arguments continue myths once promoted about rape victims
as unbelievable.
When attacking Patient A’s credibility because of purported different
accounts provided to third parties, Dr. Adam Gardner quibbles over granular
details. He also majors in minors. For example, Dr. Gardner argues that Patient
A told Officer Aaron Zwicky that Gardner massaged her inner thighs, touched her
vagina underneath her underwear, pulled down her underwear to insert needles
in her back, and removed the blanket. According to Gardner, Patient A told Drs.
Chan that Gardner massaged her hips, went under her underwear, and placed
the sheet by her side. Assuming these details given to different people diverged,
the presiding officer held discretion to discount Patient A’s testimony because of
the differences. But the presiding officer also possessed discretion to note the
similarities and to find that Gardner placed his hands in the underwear and
exposed Patient A’s breast, both of which constituted sexual contact. Patient A’s
testimony held significant consistent details that established misconduct. The
presiding officer could find by clear, cogent, and convincing evidence that Dr.
Gardner violated the disciplinary code.
Dr. Adam Gardner faults Patient A for untimely reporting the sexual
touching. Of course, Patient A timely reported the touching on February 12.
That same day she mentioned the conduct to her therapist and spoke to IIC
employees, IIC owners, and law enforcement. Assuming Gardner faults Patient
A for not reporting the February 11 assault on February 11, he fails to recognize
that some victims experience surprise, if not shock, when first assaulted. They

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need additional time to reflect before reporting. Experts note that many victims
often delay reporting sexual assaults. People v. Baenziger, 97 P.3d 271, 275
(Colo. App. 2004).
Arbitrary or Capricious Decision
In addition to challenging his suspension because of the purported
absence of substantial evidence, Dr. Adam Gardner contends his suspension is
arbitrary or capricious. A decision is arbitrary or capricious under RCW
34.05.570(3)(i) if it is a “willful and unreasoning action, taken without regard to or
consideration of the facts and circumstances surrounding the action.” City of
Redmond v. Central Puget Sound Growth Management Hearings Board, 136
Wn.2d 38, 47, 959 P.2d 1091 (1998). “If there is room for two opinions, a
decision is not arbitrary or capricious if it is made honestly and upon due
consideration, even though we think a different conclusion might have been
reached.” Bowers v. Pollution Control Hearings Board, 103 Wn. App. 587, 596
(2000). One Washington Supreme Court justice has characterized the
“quintessential arbitrary and capricious act” as deciding an issue “based on a flip
of a coin, with total disregard of the facts and circumstances.” Saldin Securities,
Inc. v. Snohomish County, 134 Wn.2d 288, 305 n.9, 949 P.2d 370 (1998)
(Talmadge, J., concurring).
We consider Dr. Adam Gardner’s attack on DOH’s decision as arbitrary as
a regurgitation of his argument that substantial evidence does not support a
finding, by clear and convincing evidence, that he engaged in misconduct.
Gardner in essence contends the presiding officer should have weighed the

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testimony of others, such as Dr. Brennan or Chase, over Patient A’s direct
account. Neither the existence of contradictory evidence nor the possibility of
deriving conflicting conclusions from the evidence renders an agency decision
arbitrary and capricious. Attorney Gen.’s Pub. Counsel Section Office v. Utilities
& Transportation Commission, 128 Wn. App. 818, 824, 116 P.3d 1064 (2005).
Dr. Adam Gardner also deems the finding of misconduct capricious
because it failed to consider temporal and physical implausibility. As for temporal
impossibility, Gardner emphasizes that Patient A’s February 12 appointment with
him ended at noon. Yet, she testified that, after the appointment ended, she met
with her therapist in person for one hour and called an attorney and multiple
acupuncturists. But then she spoke with Dr. Daniel Brennan to request an in-
person meeting, which occurred on February 12 at about 12:45 PM. Dr. Gardner
insists all of these events likely could not have occurred within forty-five minutes.
But Gardner does not speculate as to what event did not occur during this time
other than asking this court to reject Patient A’s accusation that he engaged in
sexual contact. An erroneous timeline does not negate clear and convincing
evidence of the touching of the labia and the exposure and touching of the
breasts.
A witness need not be precise with the timing of events to be credible.
Conflicting time estimates of two witnesses does not create an arbitrary and
capricious decision. PacifiCorp v. Wash. Utilities & Transportation Commission,
194 Wn. App. 571, 587 (2016). Also, Dr. Gardner misstates some of the facts.
An email reads that Patient A called IIC at 12:45 to meet with Dr. Brennan, not

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that the meeting occurred at 12:45.
In his appeal brief, Dr. Adam Gardner claims that he physically could not
simultaneously insert his fingers into Patient A’s gluteal cleft and touch her labia
as described by Patient A. In entreating the laws of physics and the science of
anatomy, Dr. Gardner cites no testimony of a witness. Neither he nor his expert
testified to any physical impossibility. Instead, he asks us to accept his lawyer’s
view of physical dimensions. This court does not engage in such fact-finding,
and we decline to do so here. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d
570, 572, 575, 343 P.2d 183 (1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153
Wn. App. 710, 717, 225 P.3d 266 (2009).
Two Evidentiary Standards
The DOH presiding officer’s conclusions of law noted legal uncertainty as
to the standard of proof faced by DOH. That standard could be either a
preponderance of evidence or clear and convincing evidence. As a result, the
presiding officer cautiously opted to review the evidence under both standards.
On appeal, Dr. Adam Gardner maintains that the presiding officer should only
have applied the clear and convincing evidence standard. In turn, DOH suggests
Gardner assigns error by reason of application of two standards. Gardner denies
any assignment of error of this ground.
We need not discuss whether a cautious presiding officer commits error
when applying the lower and higher standard of proof to facts needed to be
demonstrated by the government. We agree with Dr. Gardner that the clear and
convincing evidence standard applies to the suspension or revocation of a health

No. 84955-7-I
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care professional license. This court recently applied this standard in Wilkinson
v. Washington Medical Commission, __ Wn. App.2d ___, ___, 576 P.3d 1191,
1209-10 (2025). We have already ruled that substantial evidence supported the
presiding officer’s finding of professional misconduct based on clear and
convincing evidence. In Lang v. Dental Quality Assurance Comm’n, 138 Wn.
App. 235, 248, 156 P.3d 919 (2007), the court held the appellants failed to show
prejudice by the application of two standards of proof.
CONCLUSION
We affirm DOH’s final order and its adoption of the initial order.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
______________________________
WE CONCUR: