¶24 (concurring) — While I recognize that courts in other jurisdictions might reach a different conclusion than that which we reach here, I am in accord with the majority’s determination that this court’s decision in Bang D. Nguyen v. Department of Health, 144 Wn.2d 516, 29 P.3d 689 (2001), is controlling precedent in this state. Consequently, I agree that allegations of professional misconduct mandated under RCW 18.130.180 must be proved by clear and convincing evidence. I write separately only to express my disagreement with two aspects of Justice Madsen’s concurrence in dissent.
Alexander, C.J.f 25 First, I do not believe that it is appropriate for this court to reach an issue that was not asserted by the Department of Health, to wit: whether there is sufficient evidence on the record to satisfy the higher clear and convincing standard. See concurrence in dissent at 148. As Justice Madsen acknowledges, during the entire course of the proceedings herein, the department has maintained only that due process and the nature of the interests at stake here required no greater standard of proof than the preponderance of the evidence standard and that the evidence was sufficient to meet that burden. Id. Because the issue of whether the State proved its case by clear and convincing evidence was not raised, we should not address it.
¶26 Even if we were to address the issue, I disagree with Justice Madsen’s conclusion that the Department of Health proved by clear and convincing evidence that Alice Ongom *144abused one of her patients. See concurrence in dissent at 149. As the majority correctly observes, the hearing examiner determined, after considering all the evidence before him, that the department did “not prove [ ] its case by clear and convincing evidence.” Majority at 136. In absence of substantial evidence to the contrary in this record and in light of the directly conflicting witness testimony about the events in question,9 the appropriate course for this court to take is to defer to the hearing examiner’s legal conclusion. We should not engage, as Justice Madsen does, in a reweighing of the evidence. See, e.g., In re Disciplinary Proceeding Against Huddleston, 137 Wn.2d 560, 568, 974 P.2d 325 (1999) (a reviewing court gives deference to an administrative decision maker’s conclusions and to the weight accorded to conflicting evidence, particularly when the credibility and veracity of witnesses are at issue).
Sanders and J.M. Johnson, JJ., concur with Alexander, C.J.
Tb this end, there is substantial evidence on the record to support the presiding judge’s determination that the department did not prove by clear and convincing evidence that Ongom’s conduct violated ROW 18.130.180(24) (abuse of a client). The record shows that Ongom and Rebecca Bristlin provided directly conflicting testimony and that Ongom’s, not Bristlin’s, version of the event or events in question was supported by a third member of the staff, Franciska Chmielewski, who stated under oath that she did not see Ongom throw anything at the resident or otherwise touch her.