348 P.3d 1173
Or. Ct. App.2015Background
- Petitioner, a board-certified anesthesiologist, provided 24-hour cardiac call coverage under a services agreement with Tuality Community Hospital that required compliance with hospital policies.
- On September 4, 2009, while on cardiac call, petitioner drank one or two glasses of wine with dinner, made routine work-related calls, was later involved in a domestic altercation and briefly arrested; charges were dismissed.
- Tuality had a revised “Drug Free Workplace” policy prohibiting employees from having alcohol in their systems while on call.
- The Oregon Medical Board’s complaint alleged petitioner’s alcohol consumption while on call constituted “unprofessional or dishonorable conduct” (ORS 677.190(1)(a)), citing Tuality’s policy.
- At hearing the ALJ found no evidence petitioner was impaired and concluded the board had failed to prove a recognized professional ethical standard prohibiting any alcohol while on call.
- The board rejected the ALJ’s conclusion, found a community ethical standard (and that the hospital policy reflected it), disciplined petitioner (reprimand, $5,000 fine, costs), and the court reversed the board’s order for inadequate notice of the legal basis for discipline.
Issues
| Issue | Petitioner’s Argument | Board’s Argument | Held |
|---|---|---|---|
| Whether complaint gave adequate notice that board would proceed on a claim petitioner violated a recognized community ethical standard (beyond violating hospital policy) | Complaint referenced only Tuality’s drug-free policy; petitioner lacked notice and opportunity to prepare to defend an allegation based on broader professional ethics | Citation to ORS 677.188(4)(a) and allegation that drinking while on call is unprofessional put petitioner on notice that ethical-standard claims might be pursued | Reversed: notice was inadequate. Reference to the statute listing several alternative bases did not give unequivocal notice of the board’s ethical-standard theory. |
| Whether the board could base discipline solely on petitioner’s violation of the hospital drug-free policy | Petitioner argued breach of contract or hospital policy alone did not meet statutory definition of unprofessional conduct | Board relied on the hospital policy as reflecting community ethics and therefore as a basis for discipline under ORS 677.188(4)(a) | ALJ found violation of hospital policy alone insufficient; court did not reach merits because of defective notice (board later relied on different theories). |
| Whether there was substantial evidence of a recognized community ethical standard forbidding any alcohol while on cardiac call | Petitioner asserted no adequate notice to contest this and the evidence did not establish a profession-wide recognized standard | Board pointed to expert testimony and hospital policies to show a community consensus for abstention while on call | Court did not resolve this factual/substantial-evidence question because the dispositive procedural defect (lack of notice) required reversal. |
Key Cases Cited
- McKay v. Bd. of Med. Exam’rs, 100 Or. App. 685, 788 P.2d 476 (1990) (statutory reference to “recognized standards of ethics” incorporates ethical standards of organized medicine)
- Villanueva v. Bd. of Psychologist Examiners, 179 Or. App. 134, 39 P.3d 238 (2002) (insufficient or misleading notice of the grounds for disciplinary action is prejudicial)
- Campbell v. Bd. of Med. Exam’rs, 16 Or. App. 381, 518 P.2d 1042 (1974) (licensees entitled to procedures satisfying due process for disciplinary actions)