Sachdev v. Or. Med. Bd.

• Decision Date: 16 June 2021
• Docket Number: A172081
• Citation: 494 P.3d 1018,312 Or.App. 392
• Court: Oregon Court of Appeals
• Parties: Naina SACHDEV, M. D., Petitioner, v. OREGON MEDICAL BOARD, Respondent.

312 Or.App. 392

494 P.3d 1018

Naina SACHDEV, M. D., Petitioner,

v.OREGON MEDICAL BOARD, Respondent.

A172081

Court of Appeals of Oregon.

Argued and submitted December 1, 2020.

June 16, 2021

Philip A. Talmadge, Washington, argued the cause for petitioner. Also on the briefs were Talmadge/Fitzpatrick, Philip G. Arnold, Washington, and Campiche Arnold PLLC.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

MOONEY, J.

Licensee is a medical doctor licensed by the Oregon Medical Board (board) to practice medicine in Oregon. The board alleged that she violated various state and federal laws related to the practice of medicine. It held an extensive hearing on the allegations, after which it entered an order revoking her license, imposing a $10,000 fine, and assessing the costs of the proceedings. She petitioned for review of the board's order. We concluded that, because the board failed to provide her with adequate notice on all but one of its allegations, in violation of ORS 183.415(3), those allegations were not properly before the board and could not be used as a basis to sanction her. Sachdev v. Oregon Medical Board , 292 Or. App. 778, 426 P.3d 118 (2018) ( Sachdev I ). We concluded that the only allegation properly before the board was licensee's violation of its interim suspension order (ISO). We thus remanded the case to the board for its consideration of the sole remaining issue—an appropriate sanction for violation of the ISO. Id. at 803, 426 P.3d 118.

On remand, licensee argued that the board should impose a three-year license suspension, with credit for the period of suspension to which her license had already been subjected. Instead, the board found that licensee's violations of the ISO warranted a permanent revocation of her license to practice medicine. It also imposed a $10,000 civil penalty and assessed the costs of the proceedings against licensee. The license revocation and civil penalty were the same as the board had imposed before Sachdev I . However, it reduced the assessed "costs of the proceedings" from $119,836 to $30,000 in light of the reversed allegations.

Licensee again petitions for review, arguing that the board (1) violated her right to due process by failing to give her an opportunity to appear at an in-person hearing, (2) imposed an excessive sanction of license revocation, and (3) imposed a sanction unsupported by substantial evidence and substantial reason. We conclude that licensee was afforded sufficient due process, and that the board's order was supported by substantial evidence and reason. We also conclude that the license revocation was not an excessive sanction. We affirm.

I. BACKGROUND

We summarized the pertinent factual background concerning the board's investigation of, and resulting complaint against, licensee in Sachdev I :

"Licensee practiced ‘integrative and functional’ medicine, which is an integration of traditional Western medical practice with alternative medicine, and offered cosmetic and medical services at her clinic in Lake Oswego. In December 2011, the board began investigating licensee after receiving a patient complaint. The next year, the board became aware of a federal Drug Enforcement Administration (DEA) controlled substances investigation into licensee's clinic and received a second complaint about her. The board's investigation included concerns that, among other things, licensee improperly dispensed controlled substances, inadequately charted patient care, and provided substandard care to her patients. Unsatisfied by licensee's responses to its concerns, the board asked licensee to stop practicing medicine until it completed its investigation and, on June 7, 2012, licensee agreed to the ISO, which provided that she would withdraw from the practice of medicine.

"As the board continued its investigation, licensee remained involved in the clinic. In her view, informed by the advice of counsel, she had a ‘duty to not abandon her patients,’ so she hired physicians and staff to continue to provide patient care, and any contact between her and clinic staff or patients was limited to providing ‘continuity of care.’ The board finished its investigation and provided licensee with a complaint and notice of proposed disciplinary action against her under ORS 677.205."

Sachdev I , 292 Or. App. at 779-80, 426 P.3d 118 (footnote omitted).

The board's complaint proposed to take disciplinary action against licensee, alleging numerous violations of ORS 677.190. Licensee was charged with unprofessional or dishonorable conduct, gross or repeated negligence in the practice of medicine, violating the Controlled Substances Act, prescribing controlled substances outside accepted prescribing and record-keeping standards, and violating a board order (the ISO). The hearing before the administrative law judge (ALJ) spanned 10 days and resulted in a 144-page order. Licensee filed objections that the board considered but did not sustain. The board adopted the ALJ's proposed order and permanently revoked licensee's license to practice medicine, imposed a $10,000 fine, and assessed the costs of the proceedings. As already mentioned, licensee petitioned this court for review, and we reversed all but the allegation alleging violations of the ISO under ORS 677.190(17). Id. at 803, 426 P.3d 118. We therefore remanded to allow the board to consider an appropriate sanction for that remaining allegation. Id.

On remand, the board's counsel notified licensee that the board would reconsider its sanction for her violation of the ISO, that she would not have an opportunity to appear for that, and that it would issue a proposed order once it made its decision. He also informed licensee that, rather than issuing a new sanction, the board might instead decide to initiate a new disciplinary action and recharge licensee with the allegations that had been reversed due to inadequate notice. In September 2018, licensee's attorney responded to the board's counsel, asserting, among other things, that proceeding without an in-person hearing would violate her right to due process.

After the appellate judgment issued, the board decided to re-sanction licensee on the one remaining allegation, rather than recharge her with those allegations that had been reversed. It did not provide licensee with an in-person hearing, and it did not allow her to personally appear for the meeting at which the sanction was discussed. In May 2019, the board issued a proposed order that would impose a permanent revocation of her license to practice medicine, a $10,000 civil penalty, and an assessment of the costs associated with the proceedings. Licensee objected to that order, arguing that the proposed sanction was "too severe and not appropriate for the offense of violating the Board's [ISO]." She argued that "[a] more appropriate sanction would be suspension for three years with credit for the period of revocation[.]" In addition, licensee's counsel sent a letter to the board, explaining that licensee had made substantial changes that would affect the way in which she would practice medicine, and that she had taken a number of courses to improve her understanding of medical recordkeeping. Attached to that letter were a number of certificates, which demonstrated that licensee had completed courses related to medical recordkeeping and other practice improvements.

In July 2019, the board issued its final order, rejecting licensee's exceptions and imposing a permanent license revocation, fine, and assessment of costs as a sanction it deemed appropriate for the repeated ISO violations. The board explained that

"[b]y willfully violating the ISO on repeated occasions, Licensee was not honest with the Board in that she breached the terms of an agreement/Order with the Board that she had committed to comply with. This highlights a disregard for the authority of her licensing board, and an unwillingness on her part to conform her conduct to the requirements of the law. Her conduct also placed her clinic staff into a conflicted situation, in which they knew she had agreed to refrain from practicing medicine, so that they had to decide whether to acquiesce to her continued medical practice and her directed orders and tasks related to patient care or to comply with the express terms of the ISO."

On review, licensee raises the three assignments of error described above: that the board violated her due process rights when it declined her request to appear in-person for discussion of the sanction upon remand, that revocation of her license is an excessive sanction, and that the board's order is not supported by substantial evidence or reason. We reject all three assignments.

II. ANALYSIS

A. Due Process

Licensee first assigns error to the board's procedures, arguing that "the Board violated [her] constitutional right to due process." This assignment does not meet the requirements of ORAP 5.45(3), which provides that each assignment of error is to "identify precisely the legal, procedural, factual, or other ruling that is being challenged." But we understand licensee's first assignment of error to challenge (1) the board's decision not to allow licensee to appear in person when it considered the appropriate sanction for the ISO violations on remand from this court and (2) its "obvious reconsideration of vacated charges." For the reasons that follow, we reject both due process challenges.

1. Licensee preserved her argument.

We begin with the board's contention that licensee did not preserve her due process argument for this petition for review. In general, a party may not assign error to a matter on appeal that was not raised in the lower tribunal. ORAP 5.45(1). "Ultimately, the preservation rule is a practical one, and close calls * * * inevitably will turn on...