JOHN EDWIN GAMBEE, M. D., Petitioner,
OREGON MEDICAL BOARD, Respondent
Argued and Submitted: February 7, 2013.
Oregon Medical Board. 091324.
William G. Wheatley argued the cause for petitioner. With him on the briefs was Jaqua & Wheatley, LLC.
Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Armstrong, Judge, and Sercombe, Judge.[*]
[261 Or.App. 170] SERCOMBE, J.
After a contested case hearing, the Oregon Medical Board issued a final order revoking petitioner's license to practice medicine and awarding costs based on its conclusion that his treatment of nine patients constituted unprofessional or dishonorable conduct, gross or repeated negligence, or a willful violation of prior board orders. Petitioner seeks judicial review of the board's order. Among his many arguments on review, petitioner challenges the board's legal conclusions as to his treatment of specific patients. More broadly, he contends that, contrary to the board's conclusion, the treatment in question constitutes " alternative medical treatment," as defined in ORS 677.190(1)(b)(A), and that it therefore cannot be deemed unprofessional. As explained below, although we largely reject petitioner's challenges to the board's legal conclusions, we conclude that the board erred in determining that petitioner's treatment of two patients, I and C, violated prior board orders. Accordingly, we reverse and remand for reconsideration.
We take the following facts from the board's final order. In 1994, the board revoked petitioner's license to practice medicine based on its conclusion that he had engaged in unprofessional conduct. Petitioner's license was later reinstated pursuant to a stipulated order, which included various limitations on his practice. In 2002, the board opened an investigation, and petitioner requested an amendment to the stipulated order to include additional restrictions. In 2004, in a modified stipulated order (the 2004 order), petitioner agreed to the following limitations on his use of thyroid medication:
" [Petitioner] shall use thyroid function blood tests (with appropriate documentation in the patient charts), to include blood tests that measure the amount of thyroid hormone (free T4) and thyroid-stimulating hormone (TSH) in conjunction with the history and physical findings in making the decision whether to use thyroid medication. [Petitioner] will not use thyroid medication in treatment unless the blood tests find a TSH level greater than the
normal range and a free T4 below the normal range on a test. While treating patients with thyroid medication, [petitioner] shall periodically retest the TSH level of his patients' blood [261 Or.App. 171] no later than six weeks after initiating treatment with thyroid medication and no less than annually thereafter. [Petitioner] shall reduce the level of thyroid medication if the level of TSH falls below the normal range."
In September 2009, the board notified petitioner that it had opened another investigation, based on allegations from patient A that petitioner had recommended that she take thyroid, even though tests showed that her thyroid levels were normal, and that she obtain that thyroid from Mexico through an online source. As the investigation continued, petitioner proposed further restrictions on his treatment with thyroid and testosterone hormones. The board adopted those restrictions and in March 2010 issued an interim stipulated order (ISO), which modified the 2004 order by adding the following:
" 3.1 [Petitioner] will not recommend, prescribe, or direct any patient to take thyroid unless patient TSH levels exceed 10 uIU/mL, except that [petitioner] may recommend, prescribe or direct a patient to take thyroid supplementation if patient TSH levels are between 5 and 10 uIU/mL and the patient has also been diagnosed with goiter or positive anti-thyroid peroxidase antibodies (or both).
" 3.2 [Petitioner] will require any patient taking thyroid from a non-prescription source to undergo thyroid blood tests on a regular basis (at least every 6 months) and that [petitioner] will direct such patients to adjust their dose to bring their TSH level into the range recommended by the American Association of Clinical Endocrinologists (AACE) (the target TSH level is between 0.3 and 3.0 uIU/mL). If any patient declines to follow this direction, [petitioner] will provide 30 day prior written notice to the patient and then terminate the physician-patient relationship.
" 3.3 In the event [petitioner] decides to prescribe, recommend, direct a patient to take testosterone, or to follow a patient taking testosterone, [petitioner] must comply with the guidelines recommended in the article 'Risks of Testosterone Replacement Therapy and Recommendations for Monitoring,' published in the New England Journal of Medicine, 350:5, January 29, 2004. Specifically, [petitioner] will ensure that either he or another physician has conducted and documented a recent digital rectal examination and that at a minimum, blood tests for baseline testosterone [261 Or.App. 172] and PSA levels have been performed. [Petitioner] must not prescribe, recommend, or direct a patient to take testosterone for patients with a PSA level above 4.0 ng/mL as well as patients with a yearly PSA increase of 1.5 ng/mL or more, or 0.75 ng/mL per year or more over two years. If any patient insists that they want to take testosterone in the face of such PSA levels, [petitioner] will provide 30 day prior written notice to the patient and then terminate the physician-patient relationship.
" 3.4 [Petitioner] must make appropriate and timely chart entries to demonstrate that he is complying with the terms of this Order."
In May 2010, the board issued a complaint and notice of proposed disciplinary action. From a list of patients petitioner treated with either thyroid or testosterone during the prior year, a board investigator randomly selected five patient charts to review. After reviewing those charts (for patients H, I, J, K, and L), the board determined that petitioner was not in compliance with the ISO and that petitioner's practice of medicine would pose an immediate danger to the public and to his patients. In September 2010, the board issued an emergency order suspending petitioner's license to practice medicine.
That same month, the board issued an amended complaint and notice of proposed disciplinary action. The amended complaint alleged that petitioner had failed to comply with paragraph 3 of the ISO in treating patients H through L. The complaint further alleged that petitioner's treatment of five other patients (patients A, B, C, D, and E) with thyroid constituted unprofessional or dishonorable ...