Sachdev v. Or. Med. Bd.

292 Or.App. 778

426 P.3d 118

Naina SACHDEV, M.D., Petitioner,

v.OREGON MEDICAL BOARD, Respondent.

A158152

Court of Appeals of Oregon.

Argued and submitted November 7, 2016.

July 18, 2018

Philip A. Talmadge argued the cause for petitioner. On the opening brief was Kevin Mirch. On the reply brief were Paul G. Dodds and Brownstein Rask LLP; and Philip A. Talmadge and Talmadge Fitzpatrick Tribe.

Jona J. Maukonen, Assistant Attorney General, Portland, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

ORTEGA, P. J.

Licensee, a medical doctor, petitions for judicial review of a final order of the Oregon Medical Board (the board) that revoked her license to practice medicine, imposed a $10,000 fine, and assessed the costs of the proceeding. The board imposed those sanctions on the basis that licensee violated several provisions of ORS 677.190 by violating an interim stipulated order (ISO) and, among other things, breaching the standard of care in the course of prescribing controlled substances. On review, in three of her seven assignments of error, licensee argues that the board did not provide her the notice required by ORS 183.415(3) and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.¹ As we explain below, reviewing for legal error, Murphy v. Oregon Medical Board , 270 Or. App. 621, 622, 348 P.3d 1173 (2015), we disagree with licensee that she received inadequate notice with respect to the board's conclusion that licensee violated the ISO but agree with her that she received inadequate notice as to the board's remaining grounds for discipline. That conclusion obviates the need to address licensee's remaining assignments of error except for her claim that the board erred in concluding that she violated the ISO because it did not consider her advice-of-attorney defense as to whether her conduct was willful. We reject that assignment without written discussion. Because we conclude that the board did not provide licensee with adequate notice of the allegations other than the one pertaining to the ISO, we reverse and remand the board's order.

I. BACKGROUND

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.² 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.

The complaint's allegations were divided into two parts. The first part recited alleged violations of ORS 677.190 as follows:

"The Board proposes to take disciplinary action by imposing up to the maximum range of potential sanctions identified in ORS 677.205(2), to include the revocation of license, a $10,000 fine, and assessment of costs, pursuant to ORS 677.205 against Licensee for violations of the Medical Practice Act, to wit: ORS 677.190(l)(a) unprofessional or dishonorable conduct, as defined by ORS 677.188(4)(a), ORS 677.188(4)(b), ORS 677.188(4)(c) ; ORS 677.190(13) gross or repeated negligence in the practice of medicine; ORS 677.190(17) willfully violating any rule adopted by the board, board order, or failing to comply with a board request; ORS 677.190(23) violation of the federal Controlled Substances Act; and ORS 677.190(24) prescribing controlled substances without a legitimate medical purpose, or prescribing controlled substances without following accepted procedures for examination of patients, or prescribing controlled substances without following accepted procedures for record keeping."

Thereafter, the complaint set out more than a dozen factual allegations. The complaint first alleged, in Paragraph 3.1, that licensee

"violated the terms of her ISO by engaging in the active practice of medicine after the ISO went into effect. Subsequent to June 7, 2012, Licensee has on repeated occasions managed and directed patient care at her clinic, to include directing clinic staff to order lab work, to perform certain tasks in regard to patient care, and to issue or refill prescriptions for patients."

The complaint then included three specific instances alleged to be violations of the ISO. For example:

"a. Patient A presented at the clinic on July 25, 2012 for laser and Botox treatment. Patient A * * * had suffered a sunburn. A staff person was explaining possible complications of undergoing laser treatment with a sunburn when Licensee entered the examination room, dismissed the concerns of the staff person, and told the staff person to conduct the laser treatment that day. Patient A subsequently underwent Botox treatment. Licensee came into the examination room and directed the attending health care provider to move the needle to a different location on Patient A's face."

In the other two factual allegations, the board alleged that licensee told an unspecified patient in a text message exchange that the patient could modify her Zoloft dosage by a half tablet at night and that licensee text-messaged with clinic staff about the delivery of medical care to patients and requests that clinic staff refill prescriptions for two patients.

The complaint also specified multiple interactions with patients (Patients B through J; Paragraphs 3.2 through 3.10) that were alleged to be grounds for discipline. For example, the board alleged:

"3.3 Beginning in March of 2011, Licensee treated Patient C, a 39 year old female with a history of overusing narcotic pain medications, with Adderall, 20 mg, twice daily and continued this treatment until February of 2012. The chart notes do not provide the medical indications to support this treatment regimen, nor how Patient C responded to the treatment."

In another example, the board alleged:

"3.5 Licensee began to treat Patient E, a 16 year old female, with Phentermine (Schedule IV), 15 mg, 1 - 2 daily, in December 2010 without explanation in the chart. Patient E was 57 inches tall and weighed 155 pounds (body mass index of 24.3). There is no documentation of weight loss. Licensee initiated as series of HCG weight loss injections in May of 2011, without support documentation. In July, 2011, Licensee began to treat Patient E with Adderall 10 mg, twice daily, and continued this treatment through March of 2012. Licensee failed to document the medical indications for these treatments, nor how Patient E responded to justify continuation of these treatments."

In addition to alleged conduct as to specified patients, the board alleged:

"3.11 Licensee wrote prescriptions of hydrocodone & acetaminophen (Vicodin, Schedule III) and oxycodone (OxyContin, Schedule II) for several members of her office staff without medical justification. Licensee had these staff persons fill those prescriptions at a local pharmacy and bring those medications to her clinic for storage and later dispersal to patients that required pain medication. Licensee failed to have these medications stored in a locked container and failed to maintain accurate dispensing logs. Licensee's conduct violated the Federal Controlled Substances Act.

" * * * * *

"3.13 Licensee does not have a primary care physician. Licensee's office records reflect that she has engaged in a pattern of conduct in which she has received a series of self-prescribed testosterone injections (Schedule III) at her office.

"3.14 Licensee provided substandard medical care to certain family members, failed to coordinate their care with other healthcare providers, and failed to appropriately chart the care she provided to her family members."³

Licensee requested a contested case hearing, which was conducted before an administrative law judge (ALJ). At the hearing, the board proceeded on the bases alleged in the complaint (and in licensee's view, on grounds not contained in the notice) and the ALJ issued a proposed final order, determining that licensee violated most of the statutory bases alleged in the complaint. The ALJ determined specifically that licensee willfully violated the ISO and therefore violated ORS 677.190(17) ; prescribed controlled substances without following proper procedures for record keeping, ORS 677.190(24) ; by deviating from or breaching the standard of care, engaged in unprofessional or dishonorable conduct, ORS 677.190(1)(a) ; and, by deviating from or breaching the standard of care, committed gross negligence or repeated acts of negligence in the practice of medicine, ORS 677.190(13). The ALJ also concluded that the notice was deficient as to the allegations that licensee violated ORS 677.190(23), which is grounds for discipline when a licensee violates the federal Controlled Substances Act, and violated ORS 677.190(24) by prescribing controlled substances without a...