Petitioner seeks review of a final order of the Board of Medical Examiners (Board). ORS 183.482. The Board found that petitioner had committed an “unprofessional or dishonorable” act, in violation of ORS 677.190(l)(a), when he performed active euthanasia, or a “mercy killing,” on a patient. 1 Petitioner makes seven assignments of error, only two of which require discussion. Those two assignments concern whether the Board correctly applied the preponderance of the evidence standard of proof and whether the Board impermissibly allowed a disqualified Board member to participate in the deliberations of petitioner’s case. On review for substantial evidence and errors of law, we affirm. ORS 183.482(8).
An emergency room doctor examined the woman (patient) and, based on her symptoms, ordered a CT scan and consulted with a neurosurgeon about the results. The neurosurgeon told the doctor that patient had suffered a severe brain hemorrhage that would soon end her life. The doctor then called petitioner, who had been patient’s primary physician since 1990. When petitioner arrived, he learned that his patient’s condition was terminal.
Patient’s daughter also had arrived at the hospital. At the time, she was working as an attending nurse in an intensive care unit of a hospital in Portland. She and petitioner discussed the gravity of patient’s situation and decided, based on patient’s previously expressed end-of-life wishes, to discontinue all artificial life support methods and to provide patient with comfort measures. 2 As a result, petitioner ordered that patient’s breathing tube be removed and that patient be provided Valium and morphine for pain relief. Petitioner expected patient to “die within minutes[,]” but to his surprise, she did not.
Petitioner then left patient in the care of a nurse and patient’s family members and went to his office to meet with other patients. He continued to communicate by telephone with the attending nurse, who advised him of patient’s condition. Throughout the morning, patient continued to breathe on her own, though her respiration was described as “agonal.” 3 At 10:30 a.m., the nurse called petitioner to tell him that patient’s daughter had requested the deactivation of patient’s pacemaker. Daughter felt that the pacemaker was an artificial means of life support and thus contrary to her mother’s end-of-life wishes. Petitioner told the nurse that he did not know how to deactivate a pacemaker and that its deactivation probably would not make a difference in any event. The nurse then suggested that a magnet could be placed over the device to deactivate it. Petitioner approved that method, and it was used; the pacemaker slowed, but did not stop.
At around 11:15 a.m., the nurse again called petitioner to report that patient’s family members were concerned that patient was suffering needlessly. The nurse asked petitioner if there was anything more they could do for patient. Petitioner responded that there was nothing more to do and told the nurse to move patient from the emergency room to a room “upstairs” to make her more comfortable. The nurse then suggested that “sometimes Succinylcholine is used in these situations.” Initially, petitioner was hesitant about using that drug, noting that he had never used “it in th[at] way.” The nurse insisted, however, stating that he had used it before in similar situations. Petitioner then approved the drug’s use, directing the nurse to consult with the emergency room doctor about the proper dosage. Petitioner believed the use of Succinylcholine was consistent with the wishes of patient and her family.
Succinylcholine causes complete muscle paralysis, including the respiratory muscles. It is almost never used in the absence of artificial respiration and is not used as an end-of-life
“Succinylcholine should be used only by those skilled in the management of artificial respiration and only when facilities are constantly available for tracheal intubation and for providing adequate ventilation of the patient, including the administration of oxygen under positive pressure and elimination of carbon dioxide. The clinician must be prepared to assist or control respiration.”
Petitioner knew that the use of Succinylcholine without assisted breathing would cause patient’s death; notwithstanding, he did not order that patient receive artificial respiration. A short time later, the nurse called petitioner to inform him that patient had died. Approximately three weeks later, the hospital where petitioner treated patient contacted the Board.
After a hearing and review by the Board, the Board concluded that petitioner’s conduct constituted “unprofessional or dishonorable conduct” in violation of ORS 677.190(1). The Board disciplined petitioner by formally reprimanding him, suspending his license to practice medicine for 60 days and ordering him to pay the costs of the disciplinary proceedings. Petitioner petitions for review of that order.
The first question we address is whether the Board correctly applied the preponderance of the evidence standard of proof in determining whether petitioner’s conduct violated ORS 677.190(1). A disciplinary action taken by the Board is a contested case and subject to the procedures prescribed by ORS 183.310 to ORS 183.550, the Administrative Procedures
Act (APA). ORS 677.200. We have held that the burden of proof in an administrative hearing “is by a preponderance of the evidence in the absence of some legislative adoption of a different standard.”
Sobel v. Board of Pharmacy,
In directing that an agency’s decision must be “supported by, and in accordance with, reliable, probative and substantial evidence[,]” ORS 183.450(5) provides that some quantum of proof is necessary to support an agency’s decision.
Steadman v. SEC,
The APA does not provide a general definition of the phrase “substantial evidence,” see ORS 183.310 (defining terms used throughout the APA), nor does it define that phrase in the section governing contested cases. ORS 183.413 to ORS 183.470. The APA section on judicial review, ORS 183.480 to ORS 183.497, also uses that phrase and defines it as a quantity of evidence that, “when the record, viewed as a whole, would permit a reasonable person to make th[e agency’s] finding.” ORS 183.482(8)(c). However, that definition is not helpful because standards of proof and standards of review are not synonymous: the former guides the fact-finder; the latter guides the reviewer of facts already found. Finally, a resort to the common and ordinary understanding of the term “substantial” does not assist us either because it reasonably could be understood to require a significant amount of evidence or merely to require evidence of greater weight than the contrary proof.
The historical context of ORS 183.450(5) is helpful to a proper understanding of that statute’s text.
See Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto,
Given that contested case proceedings do not authorize criminal sanctions, that contextual authority suggests that the legislature similarly viewed contested case proceedings as ordinary civil matters and therefore, intended that the standard of proof prescribed by ORS 183.450(5) correspond to the preponderance standard. However, because that suggestion is not unequivocal evidence of the legislature’s intent, we turn to legislative history for additional insight.
PGE,
The legislative history related to the 1971 amendment creating ORS 183.450(5) confirms our textual conclusion that subsection 5 was created to prescribe a “burden of proof.” Exhibit in Separate Exhibit File, House Committee on Judiciary, HB 1213, April to June 1971, Section-By-Section Comments on Engrossed HB 1213, p.7. Though the record fails to describe the applicable burden of proof in the usual terms, several other reports on the 1971 amendments reflect a common concern that contested case hearings provide adequate due process. See, e.g., Exhibit in Separate Exhibit File, House Committee on Judiciary, HB 1213, April to June 1971, Engrossed HB 1213 — Supplementary Report of the Committee on Administrative Law to the Senate Committee on Judiciary, p 2 (noting that APA will remove “uncertainty as to whether prescribed procedures meet the constitutional requirements * * * of due process”). As noted, before the 1971 amendment, adequate due process in ordinary civil cases was set by common law and by statute at the preponderance of the evidence standard.
We find particularly persuasive, however, the presence of
Thorp
in the exhibit file. Exhibit in Separate Exhibit File, HB 1213, House Committee on Judiciary, April to June, 1971,
Thorpe v. Dept. of Motor Vehicles,
Petitioner also argues that “due process requires a ‘clear and convincing’ standard of proof in disciplinary proceedings involving health care professionals.” Neither the Oregon Supreme Court nor this court has had occasion to consider that question. Because this case presents that occasion, we turn to the Due Process Clause of the Fourteenth Amendment to the United States Constitution to determine whether it requires that the Board prove its allegations of unprofessional conduct by clear and convincing evidence. 6 In doing so, we express no opinion as to whether due process concerns require allegations of fraud in the license revocation or suspension context to be proved by that higher standard of proof. 7
In
Santosky v. Kramer,
Considering the first factor, the interest of petitioner is his right to practice medicine; it is his livelihood, and the potential deprivation of that right is substantial. Such deprivation
The second factor does not mandate a higher standard of proof. Physicians comprise a majority of the Board’s membership. ORS 677.235. That fact lowers the risk of error because those Board members are trained in the practices of the medical profession and, thus, are well equipped to analyze the nature of a particular doctor’s conduct. Moreover, a clear and convincing standard of proof would only incrementally increase the safeguards against erroneous factfinding in this proceeding. That is so because petitioner’s conduct was never an issue. Rather, the dispositive factual determination is related to the professional or unprofessional nature of petitioner’s conduct. In that context, the risk of an erroneous conclusion was safeguarded most significantly by the Board members’ knowledge and experience as physicians, which they could use to help determine whether petitioner’s conduct failed to meet professional standards. A higher standard of proof would not affect that aspect of the Board’s decision making process.
The government’s interest is also substantial and, here, in contrast to the balance of harms in Santosky, weighs in favor of the public. That interest is outlined in ORS 677.015, which provides:
“Recognizing that to practice medicine * * * is a privilege granted by legislative authority, it is necessary in the interest of the health, safety and welfare of the people of this state to provide for the granting of that privilege and the regulation of its use to the end that the public is protected from the practice of medicine by unauthorized or unqualified persons and from unprofessional conduct by persons licensed to practice under this chapter.”
That provision reflects a concern that unprofessional conduct by a physician can endanger life itself. We conclude that the seriousness of that potential harm places the interest of the public above that of a single practitioner and means, in turn, that the licensee should bear the risk of error, rather than the public.
Balancing the three factors, we conclude that the Due Process Clause requires no more than the preponderance of the evidence standard of proof in this case. The Board did not err.
Petitioner also argues that
Bernard v. Board of Dental Examiners, 2
Or App 22,
With respect to the burden of proof issue, the analysis of those cases is questionable because we did not in either case purport to base our decision on either statutory or constitutional grounds. Rather, we derived the clear and convincing standard of proof by analogizing the administrative proceeding to a civil action concerning fraud and to an attorney disciplinary proceeding.
Bernard,
The second question before us concerns whether the Board improperly permitted a disqualified Board member, Williams, to participate in the deliberations of petitioner’s case. The Board argues, first, that the issue was not preserved at the hearing and review level and, thus, is not reviewable by this court.
Woolstrum v. Board of Parole,
It appears from the record that the two documents on which petitioner relies were not available to him until after he had exhausted his administrative remedies and had requested the agency record. We assume, because of our disposition of the issue, that,
The first document is a transcription of the minutes from a July 17, 1997, meeting at which the Board considered the proposed order in petitioner’s case. It notes that Williams “has excused himself.” That statement does not of itself implicate petitioner’s concerns. However, the second document is more troubling.
The second document records the minutes of a special meeting on September 4, 1997, at which the Board considered petitioner’s petition for withdrawal of the final order and for reconsideration. It reflects that Williams was present at an executive session during which petitioner’s petition was discussed and that he was present at the subsequent public session during which a Board member moved to deny petitioner’s petition. Further, in a section designated as “Vote,” the actions of the Board members are listed and described, some voting aye, one nay, and another abstaining. However, following Williams’s name, which is listed at the end, there is nothing; his action is not described.
Petitioner argues that, because the document shows that Williams was present during the deliberations of petitioner’s petition, the proceeding “was procedurally inadequate and suspect,” and, thus, a reversal of the Board’s order on reconsideration is mandated. We agree that the document shows that Williams was present, but disagree that reversal is required.
In an agency proceeding, an action lacking the appearance of fairness is not enough to warrant its reversal.
1000 Friends of Oregon v. Wasco Co. Court,
Here, the asserted basis for reversal concerns whether Williams
participated
in the deliberations, which is prohibited by ORS 244.120(2)(b)(A). If that were established, then a reversal of the Board’s decision on reconsideration would be warranted.
See Samuel v. Board of Chiropractic Examiners,
Affirmed.
Notes
We note that this case in no way concerns Oregon’s Death with Dignity Act. ORS 127.800 et seq.
On several prior occasions, patient had discussed with her daughter and with petitioner her desire that, in the event that she became terminally ill, she did not want her life prolonged through artificial or extraordinary means. On one occasion, patient and petitioner reviewed a document called an “Advance Directive” that she had filled out and initialed in several places. That document clarified her position on artificial life support in terminal situations, like the one here, and indicated that she desired intravenous medication only for comfort. Further, that document authorized her daughter to act as her “health care representative” in situations where she was unable to communicate.
This term is defined as “[Relating to the process of dying or the moment of death[.]” Stedman’s Medical Dictionary, 34 (23rd ed 1976).
In
Steadman,
the United States Supreme Court interpreted precisely the language at issue here and determined that it “established * * * the traditional preponderance-of-the-evidence standard! ]” for proceedings under the federal APA.
Our research has revealed
Rencken v. Young,
The Oregon Constitution does not contain a due process clause.
See State v. Wagner,
The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides:
“[Nlor shall any State deprive any person of life, liberty or property, without due process of law[.]”
Clear and convincing proof is required in civil cases involving allegations of fraud.
Riley Hill General Contractor v. Tandy Corp.,
We note that it may be that, to prove his claim, petitioner needed facts that were beyond the agency record. The APA provides a mechanism to go outside the record if there are “disputed allegations of irregularities in procedure before the agency not shown in the record which, if proved, would warrant reversal or remandf.]” ORS 183.482(7). However, we are not aware that petitioner has sought to invoke that procedure.