Gallant v. Board of Medical Examiners

• Jurisdiction: Oregon
• Parties: James D. GALLANT, M.D., Petitioner, v. BOARD OF MEDICAL EXAMINERS, Respondent. CA A98973.
• Citation: Gallant v. Board of Medical Examiners, 974 P.2d 814, 159 Or.App. 175 (Or. App. 1999)
• Court: Oregon Court of Appeals
• Decision Date: 17 March 1999

Page 814

974 P.2d 814

159 Or.App. 175

James D. GALLANT, M.D., Petitioner, v. BOARD OF MEDICAL EXAMINERS, Respondent.

CA A98973.

Court of Appeals of Oregon.

Argued and Submitted Oct. 15, 1998.

Decided March 17, 1999.

Win Calkins and Eric S. DeFreest, Eugene, argued the cause for petitioner. With them on the brief was Calkins & Calkins.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and DEITS, Chief Judge, and HASELTON, Judge.

De MUNIZ, P.J.

Petitioner seeks review of a final order of the Board of Medical Examiners (Board). ORS 183.482. The Board found that petitioner had committed an "unprofessional or dishonorable" act, in violation of ORS 677.190(1)(a), when he performed active euthanasia, or a "mercy killing," on a patient. ¹ Petitioner makes seven assignments of error, only two of which require discussion. Those two assignments concern whether the Board correctly applied the preponderance of the evidence standard of proof and whether the Board impermissibly allowed a disqualified Board member to participate in the deliberations of petitioner's case. On review for substantial evidence and errors of law, we affirm. ORS 183.482(8).

We state the facts as the Board found them. In the early morning hours of March 22, 1996, a 78-year-old woman awoke with a terrible headache. She called for emergency assistance and collapsed while on the phone. When the paramedics arrived, they found her unconscious on the floor of her bedroom and tried to revive her. She did not respond to their efforts. The paramedics then inserted a tube into her throat to help her breath and took her to the hospital.

An emergency room doctor examined the woman (patient) and, based on her symptoms, ordered a CT scan and consulted with a neurosurgeon about the results. The neurosurgeon told the doctor that patient had suffered a severe brain hemorrhage that would soon end her life. The doctor then called petitioner, who had been patient's primary physician since 1990. When petitioner arrived, he learned that his patient's condition was terminal.

Patient's daughter also had arrived at the hospital. At the time, she was working as an attending nurse in an intensive care unit of a hospital in Portland. She and petitioner discussed the gravity of patient's situation and decided, based on patient's previously expressed end-of-life wishes, to discontinue all artificial life support methods and to provide patient with comfort measures. ² As a result, petitioner ordered that patient's breathing tube be removed and that patient be provided Valium and morphine for pain relief. Petitioner expected patient to "die within minutes[,]" but to his surprise, she did not.

Petitioner then left patient in the care of a nurse and patient's family members and went to his office to meet with other patients. He continued to communicate by telephone with the attending nurse, who advised him of patient's condition. Throughout the morning, patient continued to breathe on her own, though her respiration was described as "agonal." ³ At 10:30 a.m., the nurse called petitioner to tell him that patient's daughter had requested the deactivation of patient's pacemaker. Daughter felt that the pacemaker was an artificial means of life support and thus contrary to her mother's end-of-life wishes. Petitioner told the nurse that he did not know how to deactivate a pacemaker and that its deactivation probably would not make a difference in any event. The nurse then suggested that a magnet could be placed over the device to deactivate it. Petitioner approved that method, and it was used; the pacemaker slowed, but did not stop.

At around 11:15 a.m., the nurse again called petitioner to report that patient's family members were concerned that patient was suffering needlessly. The nurse asked petitioner if there was anything more they could do for patient. Petitioner responded that there was nothing more to do and told the nurse to move patient from the emergency room to a room "upstairs" to make her more comfortable. The nurse then suggested that "sometimes Succinylcholine is used in these situations." Initially, petitioner was hesitant about using that drug, noting that he had never used "it in th[at] way." The nurse insisted, however, stating that he had used it before in similar situations. Petitioner then approved the drug's use, directing the nurse to consult with the emergency room doctor about the proper dosage. Petitioner believed the use of Succinylcholine was consistent with the wishes of patient and her family.

Succinylcholine causes complete muscle paralysis, including the respiratory muscles. It is almost never used in the absence of artificial respiration and is not used as an end-of- life comfort measure. The Physician's Desk Reference contains the following warning:

"Succinylcholine should be used only by those skilled in the management of artificial respiration and only when facilities are constantly available for tracheal intubation and for providing adequate ventilation of the patient, including the administration of oxygen under positive pressure and elimination of carbon dioxide. The clinician must be prepared to assist or control respiration."

Petitioner knew that the use of Succinylcholine without assisted breathing would cause patient's death; notwithstanding, he did not order that patient receive artificial respiration. A short time later, the nurse called petitioner to inform him that patient had died. Approximately three weeks later, the hospital where petitioner treated patient contacted the Board.

After a hearing and review by the Board, the Board concluded that petitioner's conduct constituted "unprofessional or dishonorable conduct" in violation of ORS 677.190(1). The Board disciplined petitioner by formally reprimanding him, suspending his license to practice medicine for 60 days and ordering him to pay the costs of the disciplinary proceedings. Petitioner petitions for review of that order.

The first question we address is whether the Board correctly applied the preponderance of the evidence standard of proof in determining whether petitioner's conduct violated ORS 677.190(1). A disciplinary action taken by the Board is a contested case and subject to the procedures prescribed by ORS 183.310 to ORS 183.550, the Administrative Procedures Act (APA). ORS 677.200. We have held that the burden of proof in an administrative hearing "is by a preponderance of the evidence in the absence of some legislative adoption of a different standard." Sobel v. Board of Pharmacy, 130 Or.App. 374, 379, 882 P.2d 606 (1994), rev. den. 320 Or. 588, 890 P.2d 994 (1995); OSCI v. Bureau of Labor and Industries, 98 Or.App. 548, 555, 780 P.2d 743, rev. den. 308 Or. 660, 784 P.2d 1101 (1989); Automotive Technology v. Employment Division, 97 Or.App. 320, 323, 775 P.2d 916, rev. den. 308 Or. 592, 784 P.2d 1099 (1989); Metcalf v. AFSD, 65 Or.App. 761, 765, 672 P.2d 379 (1983), rev. den. 296 Or. 411, 675 P.2d 493 (1984). However, in determining that the preponderance standard applied in those cases, we did not interpret directly, or rely on, any statutory or constitutional provision, apparently assuming that the legislature intended the usual civil standard to apply in the absence of legislation to the contrary. See Sause Bros. v. Employment Div., 28 Or.App. 285, 287, 559 P.2d 531 (1977) (so stating in a case before the Employment Appeals Board); see also Sobel, 130 Or.App. at 379, 882 P.2d 606 (so stating in a case before the Board of Pharmacy). As explained below, and contrary to petitioner's position, we hold that those cases correctly concluded that the statutorily prescribed standard of proof is the preponderance of the evidence standard.

In directing that an agency's decision must be "supported by, and in accordance with, reliable, probative and substantial evidence[,]" ORS 183.450(5) provides that some quantum of proof is necessary to support an agency's decision. Steadman v. SEC, 450 U.S. 91, 98-102, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981). ⁴ That statute therefore prescribes a standard of proof because it sets the specific quantity of evidence necessary to establish an allegation. Cook v. Michael, 214 Or. 513, 526-27, 330 P.2d 1026 (1958). Here, the problem is that ORS 183.450(5) does not prescribe a standard of proof in the usual terms of preponderance, clear and convincing, or reasonable doubt. Rather, it describes the necessary quantity of proof as "substantial evidence," which does not correspond clearly to those usual terms. Consequently, we are left to seek legislative intent to determine the corresponding standard, beginning with the text and context of the statute in question. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (outlining methodology for interpreting a statute).

The APA does not provide a general definition of the phrase "substantial evidence," see ORS 183.310 (defining terms used throughout the APA), nor does it define that phrase in the section governing contested cases. ORS 183.413 to ORS 183.470. The APA section on judicial review, ORS 183.480 to 183.497, also uses that phrase and defines it as a quantity of evidence that, "when the record, viewed as a whole, would permit a reasonable person to make th[e agency's] finding." ORS 183.482(8)(c). However, that definition is not helpful because standards of proof and standards of review are not synonymous: the former guides the fact finder; the latter guides the reviewer of facts already found. Finally, a resort to the common and ordinary understanding of the term "substantial" does not assist us either because it reasonably could be understood to require a significant amount of evidence or merely to require evidence of greater weight than the contrary proof.

The historical context of ...