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Murphy v. Goss

United States District Court, D. Oregon

April 16, 2015

NITA GOSS, in her individual capacity as Health Professionals Program Coordinator, Oregon Medical Board; JOHN/JANE DOE, in his or her individual capacity as an employee of the Oregon Medical Board; W. KENT WILLIAMSON, in his individual capacity as Board Chair of the Oregon Medical Board; and KATHLEEN HALEY, as the Executive Director of the Oregon Medical Board, Defendants

For Plaintiff: Marianne Dugan, Eugene, OR.

For Defendants: Ellen F. Rosenblum, Attorney General and Todd Marshall, Senior Assistant Attorney General, OREGON DEPARTMENT OF JUSTICE, Salem, OR.


Michael H. Simon, United States District Judge.

Plaintiff, James Michael Murphy (" Plaintiff" ), brings this action against three members of the Oregon Medical Board (" OMB" ): Nita Goss, Kent Williamson, and Kathleen Haley, as well as John/Jane Doe, an unidentified employee of the OMB (collectively " Defendants" ). Before the Court is Defendants' Motion for Summary Judgment (Dkt. 27). For the reasons that follow, Defendants' motion is granted and this case is dismissed.


A party is entitled to summary judgment if the " movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although " [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the " mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).


Plaintiff is a board certified anesthesiologist. On June 21, 2008, Plaintiff signed an employment agreement with Tuality Healthcare (" Tuality" ), an Oregon non-profit community healthcare organization, and became a member of the medical staff of the Tuality Community Hospital as a sole practitioner providing anesthesia services. As part of his agreement with Tuality, Plaintiff was required to abide by the medical staff bylaws, rules, and regulations set by Tuality. On September 4, 2009, Plaintiff was on cardiac call, which required Plaintiff to be available for telephone consultation with hospital staff, for scheduling surgeries, or to report to the hospital for acute surgical emergencies. While on cardiac call, Plaintiff went to a restaurant and consumed one or two glasses of wine. Plaintiff's consumption of wine while on cardiac call violated Tuality's medical staff policies.

On July 7, 2011, OMB issued a Complaint and Notice of Proposed Disciplinary Action to Plaintiff, proposing to take disciplinary action against him for his violation of Tuality's policies. OMB issued a Final Order on July 17, 2012 (the " Final Order" ), finding that Plaintiff violated Or. Rev. Stat. (" ORS" ) § 677.190(1)(a) by engaging in unprofessional or dishonorable conduct as defined by ORS § 677.188(4)(a). That statutory provision defines unprofessional or dishonorable conduct to include any conduct or practice that does or might constitute a danger to the health or safety of a patient or the public. The Final Order states in relevant part:

The evidence was established, by both a preponderance of evidence and by clear and convincing evidence, that Dr. Murphy consumed alcohol while on call in violation of Tuality's policy, and that this conduct violated recognized standards of ethics. The Board also finds that consuming alcohol while on cardiac call places the physician at risk of impaired function, and as such, constitutes conduct " which does or might adversely affect a physician's ... ability to safely and skillfully to practice medicine..." ORS 677.188(4)(a). The Board concludes that Dr. Murphy engaged in unprofessional or dishonorable conduct and has grounds to sanction Dr. Murphy.
Dr. Murphy is reprimanded for violating hospital policy, which has a direct bearing on patient safety, and his ethical duty to abstain from consuming alcohol while on cardiac call at Tuality Hospital. In doing so, Dr. Murphy subordinated the best interest of his patients to his own personal desires.

Plaintiff does not challenge the validity of the Final Order.

After issuing the Final Order, OMB reported the Final Order to the National Practitioner Data Bank (" NPDB" ), as required by the Health Care Quality Improvement Act of 1986[1] (" HCQIA" ), a federal statute. Congress enacted HCQIA to prevent malpractice, improve the quality of health care, and ensure that incompetent physicians could not move from state to state without disclosing a physician's previous damaging or incompetent performance. HCQIA seeks to promote these goals through professional peer review, which it accomplishes, in part, by limiting the civil liability of the physicians, administrators, and healthcare entities involved in professional review actions. HCQIA established the NPDB to collect and release certain information about the professional competence and conduct of physicians, dentists, and other healthcare practitioners. HCQIA and related regulations determine which professional review actions and other events must be reported and which entities must report to the NPDB under which circumstances. HCQIA also imposes penalties for failing to report required information to the NPDB.

As part of the process of reporting the Final Order to the NPDB, the following question was posed to OMB: " Is the Adverse Action Specified in This Report Based on the Subject's Professional Competence or Conduct, Which Adversely Affected, or Could Have Adversely Affected, the Health or Welfare of the Patient?" One or more of the Defendants responded " ...

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