Read v. OREGON MEDICAL BOARD
260 P.3d 771
Or. Ct. App.2011Background
- Petitioner Read is an Oregon-licensed diagnostic radiologist who had inactive/active status issues and an arrest in 2006; board required active status evaluation after being out of practice since 2003.
- Board placed Read’s license in inactive status and required evaluation by CPEP (including psychiatric evaluation) for possible return to practice.
- Read requested a board interview; he declined to provide detailed recent practice information and later refused to undergo the CPEP evaluation after an Order for Evaluation.
- Board alleged violations of ORS 677.190(l)(a) (unprofessional or dishonorable conduct) and ORS 677.190(18) (willful disobedience) and revoked his license, fined $10,000, and taxed costs.
- Read surrendered his license; ALJ found him not credible and held he did not unprofessionally act in the dog-abuse incident, but did willfully disobey the board’s order to obtain a CPEP evaluation; board’s final order reflected credibility findings and imposed sanctions.
- Court remanded only as to the civil penalty; other aspects of the Board’s decision were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of unprofessional/dishonorable conduct statute | Read argues vagueness and Megdal controls | Board contends statute and rule define conduct | Preservation failed; no reversal on this issue |
| Willfulness of failure to comply with CPEP evaluation order | Compliance was impossible because CPEP doesn’t do psychiatric evals | Read had duty to attempt compliance and report impossibility | Board proper to find willful violation; Read failed to comply or report impossibility |
| Civil penalty amount | Penalty excessive given inactive status and surrender | Board was authorized to impose up to $10,000 plus costs | Civil penalty reversed and remanded for reconsideration; costs affirmed |
| Validity of attribution of conduct as unprofessional/dishonorable | Read was polite and engaged in dialogue; conduct not unprofessional | Record supported unprofessional conduct under statute | Affirmed in part on credibility findings; remanded for penalty reconsideration |
| Authority to continue disciplinary action after surrender" | Surrender ended proceedings | Board retained authority to continue action | Board could proceed; surrender did not bar disciplinary action |
Key Cases Cited
- Megdal v. Board of Dental Examiners, 288 Or. 293 (1980) (delegative terms require agency rule definition)
- State v. Wyatt, 331 Or. 335 (2000) (preservation requirements for appellate review)
- McKay v. Bd. of Medical Examiners, 100 Or.App. 685 (1990) (unprofessional conduct fully defined by statute)
- Spray v. Bd. of Medical Examiners, 50 Or.App. 311 (1981) (statutory definition sets standard for individual case)