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Dixon v. Oregon State Board of Nursing

Court of Appeals of Oregon

April 4, 2018

Tamara DIXON, Petitioner,
v.
OREGON STATE BOARD OF NURSING, Respondent.

          Argued and submitted October 26, 2017

          Resubmitted en banc March 19, 2018.

          Oregon State Board of Nursing 1501446

          Kevin N. Keaney argued the cause and fled the briefs for petitioner.

          Michael A. Casper, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Egan, Chief Judge, and Armstrong, Ortega, Hadlock, DeVore, Lagesen, Tookey, Garrett, DeHoog, Shorr, James, Aoyagi, and Powers, Judges.

         Case Summary:

         The Oregon State Board of Nursing revoked petitioner's nursing license and nurse practitioner certificate for conduct derogatory to the standards of nursing. Petitioner sought judicial review, arguing, among other things, that the board erroneously applied a preponderance of the evidence standard to all allegations, in contravention of Bernard v. Bd. of Dental Examiners, 2 Or.App. 22, 36, 465 P.2d 917 (1970), in which the Court of Appeals stated that allegations of fraud or deceit must be proved by clear and convincing evidence. Held: The board correctly applied the preponderance of the evidence standard. Absent legislative adoption of a different standard, the standard of proof applicable to license revocation proceedings is the same as other proceedings under the Oregon Administrative Procedures Act (APA), that is, the preponderance of the evidence standard. Bernard did not consider the APA standard, is inconsistent with subsequent case law, and is overruled.

         Affirmed.

         En Banc

         [291 Or.App. 208] AOYAGI, J.

         Petitioner seeks judicial review of an order of the Oregon State Board of Nursing revoking her nursing license and nurse practitioner certificate based on conduct derogatory to the standards of nursing. On review, petitioner raises five assignments of error. We reject petitioner's second through fifth assignments of error without discussion. We write only to address petitioner's first assignment of error, in which she argues that the board applied the wrong standard of proof. For the reasons that follow, we affirm.

         We state the relevant facts as found by the board, along with undisputed procedural facts. See Gallant v. Board of Medical Examiners, 159 Or.App. 175, 177, 974 P.2d 814 (1999). Petitioner was a registered nurse and nurse practitioner who had worked in the field for 31 years. She worked at a hospital and also maintained a private practice providing Botox injections to clients. In conjunction with her private practice, petitioner wrote prescriptions, using prescription pads from her current employer and former employer without authorization. She also periodically wrote prescriptions for friends and family without performing the necessary medical assessments, keeping records, or engaging in follow-up care. Most significantly, she prescribed repeated courses of narcotic pain medication with multiple refills to a fellow nurse, K. When K was later arrested for driving under the influence of intoxicants, possession of a controlled substance, and reckless driving, petitioner became very upset and was involved in a physical altercation with K. The board received a complaint related to that altercation, which led it to conduct an investigation.

         After investigation, the board instituted revocation proceedings based on the foregoing facts. In those proceedings, petitioner argued that the board had to prove any allegations of fraud or deceit by clear and convincing evidence. In support of that position, she relied on Bernard v. Bd. of Dental Examiners,2 Or.App. 22, 36, 465 P.2d 917 (1970), and Van Gordon v. Ore. State Bd. of Dental Examiners,52 Or.App. 749, 765, 629 P.2d 848 (1981), both cases in which this court identified the clear and convincing evidence standard as the applicable standard of proof for fraud and deceit allegations [291 Or.App. 209] in license revocation proceedings. The board rejected petitioner's argument, concluding in its final order, "The preponderance of evidence standard is the applicable standard of proof as to all allegations in ...


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