Ward v. Oregon State Bd. of Nursing
| Decision Date | 01 June 1973 |
| Citation | 510 P.2d 554,266 Or. 128 |
| Parties | , 55 A.L.R.3d 1134 Fern WARD, Respondent, v. OREGON STATE BOARD OF NURSING, Petitioner. |
| Court | Oregon Supreme Court |
John W. Burgess, Special Asst. Atty. Gen., Salem, argued the cause for petitioner. With him on the briefs were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.
Dale A. Rader, Portland, argued the cause and submitted a brief for respondent.
The Oregon State Board of Nursing entered an order revoking the nursing license of Fern Ward. The circuit court set aside the order and the Board appealed to the Court of Appeals, which affirmed the judgment of the circuit court. Or.App., 502 P.2d 265 (1972). We granted the Board's petition for review. We reverse.
The Board charged respondent Fern Ward with the violation of ORS 678.111(7), in that respondent's acts 'were and are conduct derogatory to the standards of professional nursing.' The specific charge was that respondent permitted and instructed her daughter, Karen Ryan, to perform and serve as a registered nurse and recommended her as a registered nurse when respondent knew or had reason to know that her daughter was not licensed in Oregon as a registered nurse.
A hearing was held after which the Board entered its order revoking respondent's license. Upon appeal to the Circuit Court for Multnomah County the order of the Board was set aside on the ground that there was 'insufficient probative evidence to support' the charges in the complaint, 'either as to the existence of standards or as to acts derogatory thereof' and that ORS 678.111(7) 'standing alone is ambiguous and incapable of interpretation, is too broad and undefined terms (sic) and is unconstitutional.'
The Court of Appeals held that the ground for revocation of a license to practice professional nursing stated in ORS 678.111(7) () was an adequate standard without the promulgation of administrative rules and that the statute was, therefore, not constitutionally void for vagueness. But the Court of Appeals affirmed the trial court decree upon the ground that 'there was insufficient evidence produced at the hearing before the Board to establish what activities constitute the duties of a registered nurse in Oregon.' 502 P.2d at 268. The court treated this insufficiency of evidence as a failure to prove what constitutes the controlling professional standard in this case.
Two separate issues are involved in the present case: (1) what evidence is necessary to establish a standard of professional conduct, and (2) what evidence is sufficient to prove that a standard, once established, is breached?
The Court of Appeals confused these two issues by reasoning that because there was insufficient proof that the daughter performed the duties of a registered nurse, there was insufficient proof of the standard of professional conduct to which the mother is held. The court said that 'A review of the transcript of these proceedings reveals no attempt by the Board to establish what acts are or are not circumscribed by the concept of 'professional nursing duties' through expert testimony.' 502 P.2d at 268--269. Expert testimony is not needed to establish that aiding and abetting another to hold oneself out as a registered nurse is a violation of the standards of professional nursing. 1 The standard having been established, the only issue is whether there was sufficient evidence to prove that the standard was violated.
The trial court found that there was not only insufficient evidence as to the existence of the standard, but also 'as to acts derogatory thereof.' The Court of Appeals held that the scope of review at the circuit court level was de novo and that the scope of review in the Court of Appeals was for 'error of law.' 502 P.2d at 269.
We find the Court of Appeals' analysis of the scope of judicial review to be incorrect. Judicial review by the trial court of the Board's determination in this case was governed by former ORS 678.121(3), which read:
'On appeal the court shall consider the record certified by the secretary of the board and such other evidence or testimony that either party may offer and introduce; and the court may affirm, reverse or modify the order of revocation or suspension entered by the board.'
The Court of Appeals held that ORS 678.121, although not identical to ORS 482.490, the statute interpreted in Stehle v. Department of Motor Vehicles, 229 Or. 543, 368 P.2d 386, 97 A.L.R.2d 1359 (1962), was 'so substantially similar in its import as to require the same interpretation with regard to the scope of judicial review.' 502 P.2d at 269. In Stehle we held that the statute provided de novo review at the trial level of the board's action. ORS 482.490 provided as follows:
2
We think that there are sound reasons for distinguishing the scope of review under ORS 482.490 from the scope of review under ORS 678.121. ORS 482.490 was a part of the procedure set up for the revocation and suspension of an automobile driver's license. In interpreting ORS 482.490 in Stehle, we emphasized the fact that under the procedure provided for the revocation or suspension of a driver's license the administrative hearing was not of record and that therefore it would be difficult, if not impossible, for the trial court to determine whether there was substantial evidence to support the administrative order. We also could have noted that the procedure contemplated at the administrative stage for suspension and revocation of a license was limited and informal, the hearing being 'before a representative of the department (of motor vehicles) in the county wherein the licenses resides.' Former ORS 482.450(2). We also regarded as significant the manner in which the statute described the trial court's function, directing it to 'take testimony, examine into the facts of the case and to determine whether the petitioner is entitled to a license or is subject to suspension or revocation of license * * *.' Finally, we noted that the standards by which the suspension or revocation of a driver's license was to...
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