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Murphy v. Oregon Medical Bd.

Court of Appeals of Oregon

April 29, 2015

James Michael MURPHY, M.D., Petitioner,
v.
OREGON MEDICAL BOARD, Respondent

Argued and Submitted May 20, 2014.

Oregon Medical Board. 091334.

Kendra M. Matthews argued the cause for petitioner. With her on the briefs was Ransom Blackman LLP.

Carolyn Alexander, 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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 1174

[270 Or.App. 622] NAKAMOTO, J.

Petitioner seeks judicial review of a final order of the Oregon Medical Board (the board) that imposed on petitioner a reprimand, fine, and costs of the proceeding for engaging in " [u]nprofessional or dishonorable conduct." ORS 677.190(1)(a). The board disciplined petitioner based on its conclusion that petitioner's conduct of drinking one or two glasses of wine with dinner while on call as a cardiac anesthesiologist violated an established community standard of ethics that cardiac anesthesiologists not consume any alcohol while on call. The hospital for which petitioner was on call also had a policy that employees not consume any alcohol while on call, which the board concluded reflected the community ethical standard. On appeal, petitioner argues that the board did not provide him with adequate notice of the alleged violation of a community ethical standard and, even if it did, that the board's order lacks substantial evidence and reason to support its conclusion that such a standard exists. We review the board's order for errors of law and substantial evidence. ORS 183.482(8). Because we conclude that the board did not give petitioner adequate notice, we reverse and do not reach petitioner's other assignments of error.

Petitioner is a board-certified anesthesiologist. In 2008, petitioner signed a services agreement with Tuality Heathcare under which he became a member of the medical staff of Tuality Community Hospital as a sole practitioner providing anesthesia services, including 24-hour cardiac call coverage on a rotating basis with two other anesthesiologists. Under the agreement, petitioner was required to provide services in accordance

Page 1175

with the terms of all applicable hospital policies, bylaws, rules, and regulations. In April 2009, Tuality Healthcare issued a revised " Maintaining a Drug Free Workplace" policy. Under a section referencing " employees," the policy prohibited, among other things, employees from using or having alcohol in their systems while on call.

On September 4, 2009, petitioner was on cardiac call when he went to dinner with his wife and his colleague, who was then residing in petitioner's home. During dinner, petitioner consumed one or two glasses of wine. At some [270 Or.App. 623] point early in the evening, petitioner called Dr. Hildebrant, another cardiac anesthesiologist who was at the hospital, and asked him to check on a patient and place a catheter if needed. Hildebrant agreed to do so. During that call, petitioner's wife left the restaurant because she and petitioner's colleague had an argument. Petitioner and his colleague then had an argument at the restaurant before leaving together. While they walked home, petitioner's wife called petitioner and told him that she did not want his colleague staying in the house.

Once at petitioner's house, the argument between petitioner and his colleague escalated into a physical altercation when petitioner told his colleague he needed to move out of the house immediately and could not go inside. During the confrontation, petitioner had two additional calls with Hildebrant--one regarding the outcome of the patient Hildebrant had checked on and the other to inform Hildebrant of the altercation. Ultimately, the police were informed of the altercation, and petitioner was arrested. Petitioner's wife informed Hildebrant of the arrest, and, as a result, Hildebrant assumed petitioner's call duties until petitioner's release from jail the next morning. All charges against petitioner were dismissed.

The board brought a complaint and notice of proposed disciplinary action (complaint) against petitioner under ORS 677.205, alleging that he violated " ORS 677.190(1)(a)[,] unprofessional or dishonorable conduct, as defined by ORS 677.188(4)(a)." " Unprofessional or dishonorable conduct" is defined as

" conduct unbecoming a person licensed to practice medi cine or podiatry, or detrimental to the best interests of the public, and includes:
" (a) Any conduct or practice contrary to recognized standards of ethics of the medical or podiatric profession or any conduct or practice which does or might constitute a danger to the health or safety of a patient or the public or any conduct, practice or condition which does or might adversely affect a physician's or podiatric physician and ...

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