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Ward v. Oregon State Board of Nursing

June 1, 1973

WARD, RESPONDENT,
v.
OREGON STATE BOARD OF NURSING, PETITIONER



On review from the Court of Appeals.

John W. Burgess, Special Assistant Attorney General, Salem, argued the cause for petitioner. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Dale A. Rader, Portland, argued the cause and submitted a brief for respondent.

In Banc. O'Connell, C.J.

O'connell

The Oregon State Board of Nursing entered an order revoking the nursing license of Fern Ward. The circuit court set aside the order and the Board appealed to the Court of Appeals, which affirmed the judgment of the circuit court. 11 Or App 353, 502 P2d 265 (1972). We granted the Board's petition for review. We reverse.

The Board charged respondent Fern Ward with the violation of ORS 678.111 (7), in that respondent's acts "were and are conduct derogatory to the standards of professional nursing." The specific charge was that respondent permitted and instructed her daughter, Karen Ryan, to perform and serve as a registered nurse and recommended her as a registered nurse when respondent knew or had reason to know that her daughter was not licensed in Oregon as a registered nurse.

A hearing was held after which the Board entered its order revoking respondent's license. Upon appeal to the Circuit Court for Multnomah County the order of the Board was set aside on the ground that there was "insufficient probative evidence to support" the charges in the complaint, "either as to the existence of standards or as to acts derogatory thereof" and that ORS 678.111 (7) "standing alone is ambiguous and incapable of interpretation, is too broad and undefined terms (sic) and is unconstitutional."

The Court of Appeals held that the ground for revocation of a license to practice professional nursing stated in ORS 678.111 (7) ("Conduct derogatory to the morals or standards of professional nursing") was an adequate standard without the promulgation of administrative rules and that the statute was, therefore, not constitutionally void for vagueness. But the Court of Appeals affirmed the trial court decree upon the ground that "there was insufficient evidence produced at the hearing before the Board to establish what activities constitute the duties of a registered nurse in Oregon." 502 P2d at 268. The court treated this insufficiency of evidence as a failure to prove what constitutes the controlling professional standard in this case.

Two separate issues are involved in the present case: (1) what evidence is necessary to establish a standard of professional conduct, and (2) what evidence is sufficient to prove that a standard, once established, is breached?

The Court of Appeals confused these two issues by reasoning that because there was insufficient proof that the daughter performed the duties of a registered nurse, there was insufficient proof of the standard of

professional conduct to which the mother is held. The court said that "A review of the transcript of these proceedings reveals no attempt by the Board to establish what acts are or are not circumscribed by the concept of 'professional nursing duties' through expert testimony." 502 P2d at 268-69. Expert testimony is not needed to establish that aiding and abetting another to hold oneself out as a registered nurse is a violation of the standards of professional nursing.*fn1 The ...


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