Spray v. Board of Medical Examiners

• Citation: 50 Or.App. 311,624 P.2d 125
• Parties: Charles C. SPRAY, M. D., Petitioner, v. BOARD OF MEDICAL EXAMINERS, Respondent. CA 14039.
• Decision Date: 09 February 1981
• Court: Court of Appeals of Oregon

Page 125

624 P.2d 125

50 Or.App. 311

Charles C. SPRAY, M. D., Petitioner, v. BOARD OF MEDICAL EXAMINERS, Respondent.

CA 14039.

Court of Appeals of Oregon.

Argued and Submitted June 13, 1980.

Decided Feb. 9, 1981.

Philip H. Lowthian, Portland, argued the cause for petitioner. With him on the brief were Michael J. Morris and Evans, Grebe, Gross, Jensen & Peek, P. C., Portland

Walter L. Barrie, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., and Melinda L. Bruce, Asst. Atty. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

GILLETTE, Presiding Judge.

Petitioner, a physician, seeks review of an order of the Oregon State Board of Medical Examiners (Board) revoking his license to practice medicine in Oregon ¹ on grounds of "unprofessional or dishonorable conduct." He challenges the Board's order on ten separate grounds including the claim that the Board's action is invalid because it has not promulgated administrative rules defining "unprofessional or dishonorable conduct" or, alternatively, because the Board's order in this particular case does not set out such standards. We reverse the Board's order.

At the time these revocation proceedings began, petitioner was engaged in the private practice of medicine in Portland. His practice was limited to the treatment of young people with drug problems. He had been involved with the treatment of drug dependent persons for some time. On May 22, 1978, a complaint was filed against the petitioner by the State Board of Medical Examiners. The Board charged him with failing to comply with the standards required of a physician licensed to practice medicine in Oregon by ORS 677.095

"by failing to take sufficient medical history from (certain patients) and neglecting to perform a physical examination of (those patients) or to make a medical diagnosis of the patient's illness prior to prescribing for (each patient certain) dangerous and potentially addictive drugs."

The charges named 46 individual patients, listed separately the period of treatment of each (ranging from 1972 through 1978), and the specific drugs given. Many of the charges included information on the patient's hospitalization and/or death due to an overdose of the prescribed drugs. The complaint charged that

" * * * the act of prescribing such dangerous and potentially addicting drugs for his patients without sufficient medical history or adequate physical examination and failing to arrive at a proper medical diagnosis of the patients' illnesses by Charles C. Spray, Jr., M.D. as required by ORS 677.095 constitutes unprofessional or dishonorable conduct under ORS 677.190(1) by willful and consistent utilization of medical treatment which is inappropriate."

Alternatively, it alleged that

" * * * if the medical records of the patients referred to above do not show medical histories or physical examinations which were actually taken or made by licentiate, but not recorded in the patients' medical records, then such grossly inadequate keeping of patient records constitutes unprofessional conduct on the part of the licentiate under ORS 677.190(1)."

In its final order, dated March 20, 1979, the Board defined the terms "medical history," "medical diagnosis," "physical examination" and "medical treatment." It found as fact that Dr. Spray had failed to take adequate medical histories and had not made adequate medical diagnoses or physical examinations of certain of the named patients ² for whom large quantities of certain dangerous and potentially addictive drugs were prescribed. From this factual premise, the Board issued the following Ultimate Findings of Fact and Conclusions of Law

"ULTIMATE FINDINGS OF FACT

"1. Dr. Spray did not perform adequate physical examinations on the named patients initially and did not adequately consider their physical status during the periods in which he was prescribing medication for the named patients.

"2. Dr. Spray, although claiming to detoxify the named patients, continued to give addicting and potentially dangerous drugs in high dosages and amounts over long periods of time.

"3. Dr. Spray prescribed addicting and potentially dangerous drugs without making adequate medical diagnoses of the named patients.

"4. Dr. Spray's medical histories of the named patients are either nonexistent or too abbreviated for another physician to be able to assume care of these patients with any certainty regarding the initial problem, the physical or mental status, the medical treatment regimen, the complications, the progress or failure of the patient.

"5. Dr. Spray's prescribing of addicting and potentially dangerous drugs is unprofessional and does not meet the standards of care held by medical practicing licentiates of this Board and is detrimental to the patients he purports to help and endangers their lives.

"CONCLUSIONS OF LAW

"1. The Board has legal jurisdiction of this matter pursuant to ORS chapter 677 and chapter 183.

"2. Dr. Spray has failed to comply with the standards and conduct required by ORS 677.095 of a physician licensed to practice medicine by this Board.

"3. The acts of prescribing dangerous and potentially addicting drugs for his patients, without adequate medical histories, physical examinations and medical diagnosis, constitute unprofessional or dishonorable conduct under ORS 677.190(1) by willful and consistent utilization of medical treatment which is inappropriate."

Before we analyze the machine gun attack ³ mounted by the petitioner on the Board's order, it is useful to describe briefly the statutory framework within which the Board was operating in this case. ⁴

STATUTORY SCHEME

In Oregon, the practice of medicine is governed by ORS ch. 677. The statutory basis for the suspension or revocation of a "The board may suspend or revoke a license to practice medicine in this state for any of the following reasons:

physician's license is ORS 677.190, which provides, in pertinent part,

"(1) Unprofessional or dishonorable conduct.

" * * *

"(19) Wilfully violating any provision of this chapter or any rule promulgated by the board.

" * * *."

ORS 677.188(4) defines "unprofessional or dishonorable conduct:"

"(4) 'Unprofessional or dishonorable conduct' means conduct unbecoming a person licensed to practice medicine, or detrimental to the best interest of the public, and includes:

"(a) Any conduct or practice contrary to recognized standards of ethics of the medical 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 impair a physician's ability safely and skillfully to practice medicine;

"(b) Wilful performance of any surgical or medical treatment which is contrary to acceptable medical standards; and

"(c) Wilful and consistent utilization of medical service or treatment which is or may be considered inappropriate or unnecessary."

One further statutory provision is relevant to our inquiry. ORS 667.095 provides that:

"A physician licensed to practice medicine by the Board of Medical Examiners for the State of Oregon has the duty to use that degree of care, skill and diligence which is used by ordinarily careful physicians in the same or similar circumstances in his or a similar community."

We note that this statute does not purport to be a separate ground for suspension or revocation of a medical license; ORS 677.190, supra, lists those grounds.

We turn now to petitioner's contentions.

"UNPROFESSIONAL CONDUCT"

Relying on Megdal v. Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980), the petitioner contends that the Board is obligated to formulate administrative rules or standards outlining the contours of "unprofessional or dishonorable conduct" prior to suspending or revoking a medical license on that basis. ⁵ The Board contends that such standards can be determined on a case by case basis.

In Megdal v. Board of Dental Examiners, the court examined the phrase "unprofessional conduct," as that term is used with respect to the practice of dentistry in ORS 679.140, as a ground for revocation of a dental license. The court majority stated that the statutory standard, "unprofessional conduct," could be intended in one of three ways: First, it might refer to norms of conduct uniformly or widely recognized in a particular profession. This would require a determination on the Board's part as to what those existing standards in fact are. Secondly, the phrase might express the legislature's own licensing standard, although in general terms, and the agency could proceed to "flesh out" the standard by interpretive rulemaking. Lastly, the term might represent an implied legislative direction to the agency to make rules which specifically defined the standard. Megdal v. Board of Dental Examiners, supra, 288 Or. at 304-305, 605 P.2d 273. The court rejected the first two possibilities in the case before it, and concluded that the regulating board was obligated to issue prior rules as standards before finding the behavior under discussion in that case to be "unprofessional conduct." The court reasoned as follows:

"Rather, we infer from statutes such as those cited above that when a licensing statute contains both a broad standard of 'unprofessional conduct' that is not fully defined in the statute itself and also authority to make rules for the conduct of the regulated occupation, the legislative purpose is to provide for the further specification of the standard by rules, unless a different understanding is shown." Id. at 313-314, 605 P.2d 273; see also, Arnold v. Bd. of Accountancy, 49 Or.App. 261, 619 P.2d 912 (1980).

In Megdal, the statute under scrutiny listed specific practices that constituted unprofessional conduct; the list however was not exclusive and the Board of Dental Examiners was free to find other behavior to be "unprofessiona...