This is a case I took up on appeal for another lawyer, and won. In this case, the Oregon Medical Board revoked a physician’s medical license by missappliation of complex procedural rules. In a unanimous decision, however, the Oregon Court of Appeals reversed the Oregon Medical Board in my client’s favor. See Yankee v. Oregon Medical Board, __ Or App __ (August 3, 2016) (remanding for further proceedings).
Appeals against the Oregon Medical Board are difficult to win
On appeal to the Oregon Court of Appeals, I argued that the Oregon Medical Board erred when it denied my client’s motion to reschedule his hearing, and revoked his medical license, without first holding a hearing on his motion before an Administrative Law Judge (ALJ), as required by administrative rule. The Oregon Court of Appeals agreed, and reversed the Oregon Medical Board, remanding the case for further proceedings.
This appeal was won on procedural grounds and, as experienced appellate lawyers know, this type of appeal can be difficult to win. I argued this case to the Oregon Court of Appeals in February of 2015, but the court did not decide the case until August of 2016, 18 months later, suggesting that the Court of Appeals needed significant time to decide this troubling case.
The Court of Appeals’ ruling: The Oregon Medical Board must follow prescribed procedure
The holding in this case is simple: The Oregon Medical Board must follow “prescribed procedure” when seeking to revoke a physician’s license:
“Having concluded that the [Oregon Medical] board procedurally erred when it did not provide [Dr. Yankee] with a hearing before the ALJ, we must remand this matter for further proceedings if “the fairness of the proceedings or the correctness of the action may have been impaired” by that “failure to follow prescribed procedure.” ORS 183.482(7). Here, the fairness of the proceedings may have been impaired. [Dr. Yankee] was entitled to have a hearing before a neutral ALJ [Administrative Law Judge] on the reasons for his not appearing once the [Oregon Medical] board disputed the facts articulated by [Dr. Yankee]. Instead, the [Oregon Medical] board resolved those disputed factual issues in its own favor. Accordingly, we reverse and remand for further proceedings.”
See Yankee v. Oregon Medical Board, __ Or App __, __ (August 3, 2016) (underscore added).