419 P.3d 774
Or. Ct. App.2018Background
- Petitioner, a long‑time RN and nurse practitioner, prescribed medications (including repeated narcotic refills for a colleague) and used employer prescription pads without authorization; she also wrote prescriptions for friends/family without proper exams or records. A physical altercation and related complaint prompted a Board of Nursing investigation and revocation proceedings.
- The Board found multiple allegations proved and revoked petitioner’s nursing license and nurse practitioner certificate.
- Petitioner argued the Board erred by applying the preponderance‑of‑the‑evidence standard to allegations of fraud and deceit and insisted those allegations require clear and convincing proof, relying on Bernard and Van Gordon.
- The Board rejected that argument, concluded Bernard and Van Gordon are no longer good law, and applied the preponderance standard pursuant to ORS 183.450(5).
- On judicial review, the court limited its analysis to whether the Board used the correct standard of proof and affirmed the Board, holding ORS 183.450(5) (the APA standard) governs and corresponds to preponderance.
Issues
| Issue | Petitioner’s Argument | Board’s Argument | Held |
|---|---|---|---|
| Standard of proof for fraud/deceit in APA license‑revocation proceedings | Bernard and Van Gordon require fraud/deceit be proved by clear and convincing evidence | ORS 183.450(5) sets the evidentiary standard for agency contested cases, which corresponds to preponderance; no statute requires a higher standard | The preponderance standard applies; Bernard and Van Gordon are overruled insofar as they conflict with ORS 183.450(5) |
| Whether agency must adopt higher proof for license revocation because of severity of sanction | Revocation is grave; higher standard required for fairness | Severity alone does not displace the statutory APA standard; any higher standard must come from legislature or constitutional requirement | Severity does not change the statutory standard; preponderance remains presumptive absent legislative adoption |
| Preservation of constitutional equal‑protection/rational‑basis challenge to differing standards (nursing vs. attorney discipline) | Applying preponderance to nursing revocations but clear and convincing to attorney disbarment lacks rational basis | Argument was not presented to the Board and is therefore unpreserved; Bar rules explicitly impose a different standard for attorneys | Constitutional challenge unpreserved; in any event Bar rules, not Board rules, supply the higher standard for attorneys |
| Whether prior cases remain binding | Bernard and Van Gordon control license revocation fraud standard | Subsequent APA cases (Gallant, Sobel, Cook, etc.) interpret ORS 183.450(5) as preponderance, undermining Bernard | Bernard and related dictum in Van Gordon are inconsistent with ORS 183.450(5) and are overruled to the extent they require clear and convincing in APA license revocations |
Key Cases Cited
- Bernard v. Bd. of Dental Examiners, 2 Or. App. 22 (Or. App. 1970) (earlier statement that fraud allegations in license revocation require clear and convincing proof)
- Van Gordon v. Ore. State Bd. of Dental Examiners, 52 Or. App. 749 (Or. App. 1981) (followed Bernard for fraud standard in license revocation)
- Gallant v. Board of Medical Examiners, 159 Or. App. 175 (Or. App. 1999) (interprets ORS 183.450(5) as setting an APA standard equivalent to preponderance)
- Sobel v. Board of Pharmacy, 130 Or. App. 374 (Or. App. 1994) (applies preponderance to fraud in agency licensing and questions Bernard’s viability)