426 P.3d 118
Or. Ct. App.2018Background
- Licensee, an MD practicing integrative medicine, agreed in June 2012 to an interim stipulated order (ISO) withdrawing from practice pending investigation; ISO warned that violating it could trigger discipline under ORS 677.190(17).
- The Oregon Medical Board investigated complaints and DEA activity, then issued a complaint alleging multiple violations of ORS 677.190 (including subsections (1)(a), (13), (17), (23), (24)) and numerous factual allegations about patient care, prescribing, charting, and office-controlled-substance handling.
- Licensee requested a contested case hearing; the ALJ found violations including willful violation of the ISO (ORS 677.190(17)), breaches of standard of care tied to ORS 677.190(1)(a) and (13), and prescribing/recordkeeping violations under ORS 677.190(24); ALJ found notice deficient as to some allegations.
- The Board adopted the ALJ’s proposed order, revoked license, levied a $10,000 fine, and assessed costs; licensee petitioned for judicial review asserting inadequate notice under ORS 183.415(3) and due process.
- The appellate court reviewed for legal error and concluded the notice was adequate only for the ISO/ORS 677.190(17) allegation but inadequate for the other statutory and rule-based grounds (because the notice failed to reference controlling rules/statutory subparts or to identify which part of broad statutory definitions the Board would press).
- Court reversed and remanded: Board may reimpose sanctions based only on the ISO violation; other grounds cannot be used because inadequate notice was prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of notice under ORS 183.415(3) & due process | Notice failed to reference specific statutes/rules and failed to state plainly which statutory grounds the Board would press, denying fair opportunity to prepare a defense | Complaint’s factual detail sufficed to put licensee on notice; some rules/statutes were peripheral and did not need citation | Notice adequate only as to ISO/ORS 677.190(17); inadequate for other grounds where rules/statutory subparts or bases were not cited |
| Reliance on ORS 677.085 to define "practice of medicine" in proving ISO violation | Board erred by relying on a statute not cited in the notice | ISO itself and the complaint alleged breach of the ISO (withdrawal from practice); definition citation was not essential to notice | Board’s reliance on ORS 677.085 did not render notice inadequate for ISO charge; notice of ISO violation was sufficient |
| Use of administrative rules (e.g., OAR 847-015-0015 and OAR 847-015-0010) to prove prescribing/recordkeeping violations | Licensee lacked notice because the complaint did not reference these specific rules | Board contends facts signaled applicable standards and rules were peripheral | Board’s reliance on those rules without citing them in the notice violated ORS 183.415(3)(c); notice inadequate as to those rule-based violations |
| Charging "unprofessional or dishonorable conduct" (ORS 677.190(1)(a)) and gross/repeated negligence (ORS 677.190(13)) without specifying statutory sub-bases or standard | Licensee argued the notice must identify which subsection of ORS 677.188(4) or which statutory ground the Board would press and the legal standard (e.g., gross negligence) | Board argued factual allegations showed which provisions applied and could be fleshed out at hearing | Court held notice inadequate: broad citation to ORS 677.190(1)(a) and ORS 677.188(4) plus factual allegations did not give unequivocal notice of which sub-basis the Board relied on or whether it alleged gross/repeated negligence |
Key Cases Cited
- Villanueva v. Bd. of Psychologist Examiners, 175 Or. App. 345 (Or. App. 2001) (statute requires citation to particular statutes/rules in notice; substantial compliance insufficient)
- Murphy v. Oregon Medical Bd., 270 Or. App. 621 (Or. App. 2015) (notice must indicate which part of a multi‑part statutory definition the agency will press)
- Drayton v. Dep’t of Transp., 186 Or. App. 1 (Or. App. 2003) (notice must reference administrative rules that are instrumental to the agency’s theory)
- Coffey v. Bd. of Geologist Examiners, 348 Or. 494 (Or. 2010) (standard-of-care inquiry relies on community professional norms; gross negligence distinct from ordinary negligence)
- Spray v. Bd. of Medical Examiners, 50 Or. App. 311 (Or. App. 1981) (establishing unprofessional conduct by expert testimony about deviation from community standard of care)