A state medical board failed to provide adequate notice when it altered the basis for disciplinary action against a physician who drank some wine while on call, a judge for the Oregon Court of Appeals ruled April 29 (Murphy v. Oregon Board of Medicine).
James Michael Murphy, a board-certified cardiac anesthesiologist, was reprimanded for having a glass of wine while on call with the company Tuality Healthcare. The incident occurred while Murphy was under contract with Tuality. Under his services agreement with the company, Murphy became a member of the medical staff of Tuality Community Hospital as a sole practitioner providing anesthesia services, including 24-hour cardiac call coverage on a rotating basis with two other anesthesiologists. Employees were prohibited from using or having alcohol in their systems while on call.
On September 4, 2009, Murphy was on call when he went out to dinner with his wife and a colleague who was living at their house. At some point early in the evening, Murphy consumed one or two glasses of wine. Later in the evening, an altercation between Murphy and his colleague occurred, which subsequently led to Murphy’s arrest.
The Oregon Board of Medicine, notified of Murphy’s arrest, discovered that Murphy had consumed alcohol while on call, violating board policy, and warranting sanction.
In the complaint, the board contended that consumption of alcohol, even one glass of wine, “might” have compromised Murphy’s skill as a practitioner, and therefore violated the Quality Community Hospital’s Drug Free Workplace policy.
“[Petitioner’s] consumption of alcohol while on call constitutes unprofessional or dishonorable conduct,” the complaint read.
However, the administrative law judge found that the board had “no grounds on which to sanction” Murphy, since Murphy did not consume enough alcohol to render his medical ability or judgment compromised.
Agreeing with the ALJ’s finding of fact, but disagreeing with the ALJ’s conclusion, the board issued an amended order, which was fully adopted into the final order, asserting that the consumption of alcohol was a breach of ethical standards.
The Oregon Court of Appeals took issue with the board’s final order and adopted interpretation of Tuality’s policy as “a reflection of a recognized community ethical standard.” Not only was the adopted interpretation “theoretical” in the court’s estimation, but the interpretation also diverged from the basis for disciplinary action in the board’s complaint, which was “unprofessional and dishonorable conduct.”
In reversing the board’s decision, the court also suggested that the board had set unreasonable standards for Murphy’s defense. “The board’s own order makes clear the prejudice to petitioner,” the court said, because the board remarked that in the course of the contested case hearing, Murphy had failed to produce a physician to testify that they consumed alcohol while on call at a hospital, or thought it was appropriate to do so.