Murphy v. Or. Med. Bd. – April 2015 (Summary)

PHYSICIAN LICENSURE

Murphy v. Or. Med. Bd., Nos. 091334, A152438 (Or. Ct. App. Apr. 29, 2015)

A cardiac anesthesiologist who consumed one to two glasses of wine at a restaurant while on call was found by the state medical board to have engaged in unprofessional conduct. The state medical board reported the cardiac anesthesiologist to the National Practitioner Data Bank (“NPDB”). The cardiac anesthesiologist alleged that the board’s decision violated his due process rights when it answered “Yes” in response to the NPDB’s question: “Is the Adverse Action Specified in This Report Based on the Subject’s Professional Competence or Conduct, Which Adversely Affected, or Could Have Adversely Affected, the Health or Welfare of the Patient?”

In Murphy v. Goss, No. 3:14-cv-01135-SI (D. Or. Jan. 26, 2015), the United States District Court for the District of Oregon dismissed (without prejudice) the cardiac anesthesiologist’s substantive due process claim against several members of a state medical board on the basis that those individuals were entitled to immunity under the Health Care Quality Improvement Act of 1986 (“HCQIA”) since the cardiac anesthesiologist did not allege that any of them had knowledge of the falsity of any report made to the NPDB.

In Murphy v. Goss, No. 3:14-cv-01135-SI (D. Or. Apr. 16, 2015), the court once again considered whether the cardiac anesthesiologist could pursue his claims against the state board and its members. In granting summary judgment to the state board and its members, again on the basis of HCQIA immunity, the court noted that there was no evidence that anyone at the state board had knowledge of the falsity of the NPDB report. The court rejected the cardiac anesthesiologist’s assertion that he should be permitted to proceed through discovery to trial, where a jury could decide whether to believe the state board employee (who declared that she had no actual knowledge that the report was false) or believe the cardiac anesthesiologist’s unsupported accusation that the employee did know that the report was false. According to the court, “[s]tanding alone, the mere assertion by Plaintiff that one of the Defendants had actual knowledge that the report was false is insufficient to survive a motion for summary judgment.”

In this most recent case, the Oregon Court of Appeals reversed the state medical board’s determination that the cardiac anesthesiologist engaged in unprofessional or dishonorable conduct by consuming alcohol while on call because it violated an underlying ethical obligation because the board failed to give the cardiac anesthesiologist notice of this allegation. The board sent a letter to the cardiac anesthesiologist stating that he was to be charged with violating a statutory provision that prohibits unprofessional or dishonorable conduct and an administrative law judge will conduct a hearing. The board explicitly stated that the cardiac anesthesiologist’s breaching of his employer’s drug-free workplace policy was the basis of its action.

The cardiac anesthesiologist learned that he was also being charged with violating an underlying ethical obligation not to drink alcohol when on call. The cardiac anesthesiologist requested an extension in order to prepare a defense for the new allegation. The administrative judge denied the request and allowed the board to proceed. In his proposed order, the administrative judge concluded that the cardiac anesthesiologist’s violation of the hospital’s policy did not constitute unprofessional or dishonorable conduct as defined by the statute, and that the board failed to establish the existence of a recognized standard within the medical profession prohibiting the consumption of alcohol while on call. The board ignored the administrative judge’s findings and disciplined the cardiac anesthesiologist, stating that the cardiac anesthesiologist failed to call any witnesses to refute the board’s ethical argument.

The court agreed with thecardiac anesthesiologist that he was prejudiced by the board’s inadequate notice of the charges. The court explained that the only charge the board had informed the cardiac anesthesiologist of was his alleged unprofessional or dishonorable conduct, without ever having mentioned an ethical argument. The court highlighted the cardiac anesthesiologist’s prejudice with the board’s own order stating that the cardiac anesthesiologist “did not produce one physician to testify that they consumed alcohol while on call at a hospital, or thought it was appropriate to do so.”