Chapter 677

 

      Chapter 677

 

ATTY. GEN. OPINIONS: Extent of grandfather right under 1969 Act amending barbers law, (1972) Vol 36, p 23; licensing requirements for hospital technicians employed by state correctional facilities, (1987) Vol 45, p 188

 

      677.010

 

ATTY. GEN. OPINIONS: Licensed physical therapist perform electromyography tests, (1974) Vol 37, p 61

 

      677.060

 

ATTY. GEN. OPINIONS: Authority of chiropractor to practice obstetrics, (1972) Vol 35, p 1267; administration of medication by psychiatric aide, (1975) Vol 37, p 478

 

      677.065

 

      See annotations under ORS 677.515.

 

      677.080

 

ATTY. GEN. OPINIONS: Authority of chiropractor to practice obstetrics, (1972) Vol 35, p 1267; authority of midwives to practice, (1977) Vol 38, p 967

 

      677.082

 

LAW REVIEW CITATIONS: 43 WLR 363 (2007)

 

      677.085

 

NOTES OF DECISIONS

 

      Acupuncture constitutes the practice of medicine under this section. State v. W. Sam Won, 19 Or App 580, 528 P2d 594 (1974), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Authority of chiropractor to practice obstetrics, (1972) Vol 35, p 1267; necessity of specific authorization from the physician before a pharmacist may substitute an equivalent product for specified brand name prescriptions, (1973) Vol 36, p 524; administration of medication by psychiatric aide, (1975) Vol 37, p 478; performance of episiotomy by midwives, (1977) Vol 38, p 967

 

      677.095

 

NOTES OF DECISIONS

 

      This section is addressed to standards relating to medical malpractice, so it was improper to use it as standard to judge matters of physician license revocation. Spray v. Bd. of Medical Examiners, 50 Or App 311, 624 P2d 125 (1981), as modified by 51 Or App 773, 627 P2d 25 (1981)

 

      “Error-of-judgment” instruction is unduly confusing and obscures fact that defendant’s liability for negligence turns on exercise of reasonable care and not on exercise of judgment. Rogers v. Meridian Park Hospital, 307 Or 612, 772 P2d 929 (1989)

 

      Under Creasey v. Hogan, 292 Or 154, 637 P2d 114 (1981), key determination is that expert possess knowledge of what constitutes proper medical treatment in similar community. Mosley v. Owens, 108 Or App 685, 816 P2d 1198 (1991), Sup Ct review denied

 

      Whether duty extends to third parties is not addressed by definition of nature of duty toward patients. Zavalas v. Dept. of Corrections, 124 Or App 166, 861 P2d 1026 (1993), Sup Ct review denied

 

LAW REVIEW CITATIONS: 70 OLR 629 (1991)

 

      677.097

 

NOTES OF DECISIONS

 

      To demonstrate compliance with this section, expert testimony may be required to establish standard of practice of reasonable medical practitioner if patient requests further explanation of procedures or treatment to be undertaken. Tiedemann v. Radiation Therapy Consultants, 299 Or 238, 701 P2d 440 (1985)

 

      This section, setting forth steps physician shall follow in obtaining patient’s informed consent, was intended to codify and clarify common law. Zacher v. Petty, 312 Or 590, 826 P2d 619 (1992)

 

      For “explanation” to be adequate, patient must be capable of understanding risks of, and alternatives to, treatment and capable of using information in rational decision-making process. Macy v. Blatchford, 330 Or 444, 8 P3d 204 (2000)

 

LAW REVIEW CITATIONS: 71 OLR 909 (1992); 42 WLR 563 (2006)

 

      677.100

 

NOTES OF DECISIONS

 

      Inquiry under paragraph (1)(d) includes all conduct of a petitioner, within as well as without the state, during the period between the time license registration is changed to inactive and the filing of a request for active registration. Campbell v. Bd. of Medical Examiners, 16 Or App 381, 518 P2d 1042 (1974), Sup Ct review denied

 

LAW REVIEW CITATIONS: 54 OLR 383 (1975)

 

      677.172

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Conduct during period of inactive registration subject to review by board on reapplication includes conduct within and without state. Campbell v. Bd. of Medical Examiners, 16 Or App 381, 518 P2d 1042 (1974), Sup Ct review denied

 

      677.188

 

NOTES OF DECISIONS

 

      Board of Medical Examiners need not promulgate administrative rules defining “unprofessional or dishonorable conduct” when conduct giving rise to suspension of physician’s license consisted of “wilful and consistent utilization of medical service or treatment which is or may be considered inappropriate or unnecessary.” Spray v. Bd. of Medical Examiners, 50 Or App 311, 624 P2d 125 (1981), modified 51 Or App 773, 627 P2d 25 (1981)

 

LAW REVIEW CITATIONS: 51 OLR 504-508 (1972)

 

      677.190

 

NOTES OF DECISIONS

 

      As “wilful and consistent utilization of medical service or treatment which is or may be considered inappropriate or unnecessary” (grounds for suspension of physician’s license) is part of definition of unprofessional or dishonorable conduct under this section, it is not conduct which must be defined by administrative rule, but is rather conduct which must be determined on individual case basis through testimony of qualified physicians as to prevailing norm in medical community. Spray v. Bd. of Medical Examiners, 50 Or App 311, 624 P2d 125 (1981), modified 51 Or App 773, 627 P2d 25 (1981)

 

      Prohibition against willfully or negligently divulging professional secret establishes duty of secrecy in medical relationship, and breach of duty in confidential relationship is actionable wrong. Humphers v. First Interstate Bank, 298 Or 706, 696 P2d 527 (1985)

 

      ORS 677.415 does not limit Board of Medical Examiners to one investigatory interview and where petitioner’s license to practice medicine was revoked by Board for failure to comply with investigatory interview, absent evidence in form of record that interview would actually have been non-investigatory and would have required contested case procedures, petitioner’s refusal to participate was grounds for revocation of license. Anderson v. Board of Medical Examiners, 95 Or App 676, 770 P2d 947 (1989), Sup Ct review denied

 

      Defendant hospital’s duty of confidentiality did not extend beyond patient to patient’s family where facts disclosed did not concern family and did not arise out of any family involvement in patient’s treatment. Doe v. Portland Health Centers, Inc., 99 Or App 423, 782 P2d 446 (1989)

 

      Where petitioner had his license suspended or revoked in another state based upon acts constituting unprofessional conduct within meaning of this section, it was not necessary for Board of Medical Examiners to evaluate sufficiency of other state’s proof of underlying conduct, nor was it required to engage in prior rulemaking defining “unprofessional conduct” or “recognized standards of ethics.” McKay v. Board of Medical Examiners, 100 Or App 685, 788 P2d 476 (1990)

 

LAW REVIEW CITATIONS: 51 OLR 504-508 (1972)

 

      677.200

 

NOTES OF DECISIONS

 

      Notice, stating that physician had “consistently prescribed dangerous drugs to patients in amounts and in a manner which is inappropriate to the treatment of such patients and is not medically indicated,” constituted sufficient notice of nature of proceedings against him, notwithstanding that notice failed to provide reference to particular sections of statutes and rules involved. Bennett v. Board of Medical Examiners, 31 Or App 467, 570 P2d 986 (1977), Sup Ct review denied

 

      Under this section, physician and attorney should be afforded opportunity to appeal and be heard at hearing on license revocation. Stalder v. Bd. of Medical Examiners, 37 Or App 853, 588 P2d 659 (1978)

 

      677.205

 

NOTES OF DECISIONS

 

      Court would not determine if probation condition that “licentiate shall not indulge in any act which may be deemed to be act of sexual deviation” was beyond statutory authority granted board by this section, where order revoking doctor’s license did not interpret condition or state that it relied on condition. Stalder v. Bd. of Medical Examiners, 37 Or App 853, 588 P2d 659 (1978)

 

      Assessment of all “costs” of disciplinary proceeding as civil penalty is not limited to costs recoverable under ORCP 68. Adams v. Board of Medical Examiners, 170 Or App 1, 11 P3d 676 (2000)

 

      677.265

 

NOTES OF DECISIONS

 

      Where doctor’s actions were taken as part of Board of Medical Examiner’s consideration of complaints against medical practitioners, actions were immune from antitrust liability. Patrick v. Burget, 800 F2d 1498 (1986)

 

ATTY. GEN. OPINIONS: Requirements to practice acupuncture, (1973) Vol 36, p 617

 

      677.360

 

LAW REVIEW CITATIONS: 17 WLR 926 (1981)

 

      677.365

 

LAW REVIEW CITATIONS: 17 WLR 934 (1981)

 

      677.370

 

LAW REVIEW CITATIONS: 17 WLR 926 (1981)

 

      677.415

 

NOTES OF DECISIONS

 

      Where doctor’s actions were taken as part of Board of Medical Examiner’s consideration of complaints against medical practitioners, actions were immune from antitrust liability. Patrick v. Burget, 800 F2d 1498 (1986)

 

      Where petitioner’s license to practice medicine was revoked by Board for failure to comply with investigatory interview, and statute does not limit Board of Medical Examiners to one investigatory interview, absent evidence in form of record that interview would actually have been non-investigatory and would have required contested case procedures, petitioner’s refusal to participate was grounds for revocation of license. Anderson v. Board of Medical Examiners, 95 Or App 676, 770 P2d 947 (1989), Sup Ct review denied

 

      677.425

 

NOTES OF DECISIONS

 

      This section does not apply to administrative proceedings brought by Board against person who was subject of investigation or to information sought to be elicited from person unconnected with Board concerning manner in which he was contacted by Board investigators prior to filing complaint. Stalder v. Bd. of Medical Examiners, 37 Or App 853, 588 P2d 659 (1978); Spray v. Bd. of Medical Examiners, 50 Or App 311, 624 P2d 125 (1981), modified 51 Or App 773, 627 P2d 25 (1981)

 

      677.505

 

ATTY. GEN. OPINIONS: Administration of medication by psychiatric aid, (1975) Vol 37, p 478

 

      677.515

(formerly 677.065)

 

ATTY. GEN. OPINIONS: Administration of medication by psychiatric aide, (1975) Vol 37, p 478

 

      677.805

 

      See also annotations under ORS 682.010 in permanent edition.

 

NOTES OF DECISIONS

 

      Where podiatrists brought Sherman Anti-Trust suit against health plan and others and made sufficient factual showing on horizontal price-fixing and group boycott issues, and case is rife with factual complexity, summary judgment should not have been granted. Hahn v. Oregon Physician’s Service, 868 F2d 1022 (9th Cir. 1988)

 

      677.810

 

      See annotations under ORS 682.020 in permanent edition.

 

      677.820

 

      See annotations under ORS 682.040 in permanent edition.