392 P.3d 788
Or. Ct. App.2017Background
- Petitioner, a certified psychiatric mental-health nurse practitioner, treated a patient from Dec 2008 to Dec 2010; the patient turned 18 during treatment.
- Patient missed a January 2011 appointment; petitioner left voicemail messages demanding payment of an outstanding balance and advising that records would not be released until the balance was paid.
- After a cancelled February 2011 appointment and an abusive voicemail from the patient’s stepfather, petitioner left another voicemail reiterating the withholding-of-records-until-payment position.
- The patient obtained care elsewhere and his new provider and the patient had difficulty obtaining records from petitioner; the patient’s mother filed a complaint with the federal Office for Civil Rights in Jan 2012 alleging wrongful withholding of records pending payment.
- The Oregon State Board of Nursing issued a notice proposing a 60-day suspension for fraud and conduct derogatory to nursing standards; an ALJ and then the Board found petitioner committed fraud based on her voicemail asserting she would not release records until paid.
- On judicial review, petitioner challenged the fraud finding (three arguments); the court held those arguments were not preserved for review and affirmed the suspension.
Issues
| Issue | Petitioner’s Argument | Board’s Argument | Held |
|---|---|---|---|
| Proper legal definition of “fraud” in ORS 678.111(1)(d) | Board should have applied a common-law nine-part fraud test (Conzelmann test) rather than a dictionary definition | Argument not preserved below; Board applied Webster’s definition and the ALJ relied on that | Not preserved; court declined to review and affirmed the Board’s use of the dictionary-based definition |
| Burden of proof for fraud finding | Board should have required clear and convincing evidence rather than preponderance | Board followed ALJ’s announced preponderance standard; petitioner failed to raise burden argument in exceptions | Not preserved; court declined to review and affirmed the preponderance standard used |
| Sufficiency of evidence for fraud (misrepresentation, intent, reliance, harm) | No evidence of misstatement of fact/law, fraudulent intent, detrimental reliance, or harm; record does not support fraud | Argument not preserved with specificity in exceptions; petitioner’s exceptions focused on context and denial she conditioned records on payment, not the specific elements she now raises | Not preserved; court declined to consider unpreserved sufficiency arguments and affirmed |
| Plain-error review for unpreserved claims | Claims are errors of law apparent on the face of the record warranting review | Petitioner offered only a bare assertion of plain error and did not show the three Corkill criteria or address discretionary factors | Court declined to apply plain-error review and affirmed |
Key Cases Cited
- Conzelmann v. N.W.P. & D. Prod. Co., 190 Or. 332 (1950) (describes multifactor common-law fraud test)
- Watts v. Board of Nursing, 282 Or. App. 705 (2016) (failure to raise argument below forfeits judicial review)
- Becklin v. Board of Examiners for Engineering, 195 Or. App. 186 (2004) (argument preservation requires specificity so agency can address the point)
- State v. Corkill, 262 Or. App. 543 (2014) (three-prong test for plain-error review of unpreserved legal errors)
- State v. Carr, 215 Or. App. 306 (2007) (discretionary factors govern whether appellate court will correct plain error)
- Meltebeke v. Bureau of Labor and Industries, 322 Or. 132 (1995) (unchallenged agency factual findings are binding on review)