Rushton v. Oregon Medical Board

574

Argued and submitted June 24, affirmed July 28, 2021

Michael James RUSHTON, DPM,

Petitioner,

v.

OREGON MEDICAL BOARD,

Respondent.

Oregon Medical Board

A172366

497 P3d 814

Petitioner, Michael James Rushton, DPM, seeks judicial review of a final order

by the Oregon Medical Board imposing sanctions stemming from petitioner’s

negligence in connection with six patients’ medical records. Among other chal-

lenges, petitioner contends that the board erred in upholding the administra-

tive law judge’s findings of fact and conclusions of law surrounding the failure to

disclose an expert report to petitioner after that expert was called as a witness

during the contested case hearing. Petitioner argues that ORS 676.175(3)(d) does

not protect the report from disclosure and that, even if it did, any protection

under the statute was waived as a result of the expert’s testimony. Held: The

plain language of ORS 676.175(3)(d) exempts from disclosure to the licensee or

applicant reports of expert witnesses. Further, petitioner’s arguments on review

are either unpreserved or have not persuaded the Court of Appeals that there is

any exception to that broad exemption from disclosure.

Affirmed.

George S. Pitcher argued the cause for petitioner. Also

on the briefs were Rachel A. Robinson and Lewis Brisbois

Bisgaard & Smith LLP.

Denise Fjordbeck argued the cause for respondent. On the

brief were Ellen F. Rosenblum, Attorney General, Benjamin

Gutman, Solicitor General and Colm Moore, Assistant

Attorney General.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

POWERS, J.

Affirmed.

Cite as 313 Or App 574 (2021) 575

POWERS, J.

Petitioner, Michael James Rushton, DPM, seeks

judicial review of a final order by the Oregon Medical Board

imposing sanctions stemming from petitioner’s negligence

in connection with six patients’ medical records. We affirm.

Petitioner raises five assignments of error, four of

which we reject without discussion. In his third assignment

of error, petitioner challenges the board’s decision to uphold

the administrative law judge’s (ALJ) findings of fact and con-

clusions of law surrounding the failure to disclose an expert

report to petitioner after that expert was called as a witness

during the contested case hearing. Petitioner argues that

ORS 676.175(3)(d) does not protect the report from disclo-

sure and that, even if it did, any protection under the stat-

ute was waived as a result of the expert’s testimony. The

board contends that the plain text of the statute controls,

and that petitioner failed to preserve the waiver argument.

The parties’ dispute presents a question of statutory

construction, which we review for errors of law. OR-OSHA

v. CBI Services, Inc., 356 Or 577, 585, 341 P3d 701 (2014).

When interpreting a statute, our goal is to ascertain the leg-

islature’s intent. PGE v. Bureau of Labor Industries, 317 Or

606, 610, 859 P2d 1143 (1993). We, thus, turn to the familiar

framework for statutory interpretation described in State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), in which

we examine the text, context, and any pertinent legisla-

tive history to discern the legislature’s intended meaning.

Importantly, “[t]he formal requirements of lawmaking pro-

duce the best source from which to discern the legislature’s

intent, for it is not the intent of the individual legislators

that governs, but the intent of the legislature as formally

enacted into law[.]” Id. at 171.

ORS 676.175(3) provides, in part:

“If a health professional regulatory board votes to issue

a notice of intent to impose a disciplinary sanction, upon

written request by the licensee or applicant, the board

shall disclose to the licensee or applicant all information

obtained by the board in the investigation of the allegations

in the notice except:

576 Rushton v. Oregon Medical Board

“* * * * *

“(d) Reports of expert witnesses.”

The text of that statute is clear: reports of expert witnesses

are not disclosed to the licensee or applicant. Further, there

is nothing in the text or context of the statutory framework

that suggests that there is a temporal limitation on that

exemption from disclosure.

Petitioner has not pointed us to any other source of

law that contravenes the plain language of that statute. To

the extent that petitioner’s argument relies on OEC 705, we

note that the Oregon Evidence Code (OEC) does not apply

in contested case hearings. See Osuna-Bonilla v. Teacher

Standards and Practices Comm., 282 Or App 260, 269,

386 P3d 229 (2016) (explaining that “the evidence that an

administrative body may consider in a contested case does

not turn on the strictures of the Oregon Evidence Code as in

a judicial proceeding”); see also ORS 183.450(1).1 Further, to

the extent that petitioner’s argument relies on statements

gleaned from the legislative history to create a distinction

between prehearing proceedings and contested case hear-

ings, we reject that argument because those selective state-

ments do little to overcome the plain text of the statute. See

Gaines, 346 Or at 171 (explaining that “there is no more

persuasive evidence of the intent of the legislature than the

words by which the legislature undertook to give expression

to its wishes” (internal quotation marks omitted)); see also

White v. Jubitz Corp., 347 Or 212, 223, 219 P3d 566 (2009)

(observing that “legislative history cannot substitute for, or

contradict the text” of a statute).

Finally, we reject petitioner’s waiver argument as

unpreserved. See Thomas Creek Lumber v. Board of Forestry,

188 Or App 10, 30, 69 P3d 1238 (2003) (explaining that the

1

ORS 183.450(1) provides:

“Irrelevant, immaterial or unduly repetitious evidence shall be excluded

but erroneous rulings on evidence shall not preclude agency action on the

record unless shown to have substantially prejudiced the rights of a party. All

other evidence of a type commonly relied upon by reasonably prudent persons

in conduct of their serious affairs shall be admissible. Agencies and hearing

officers shall give effect to the rules of privilege recognized by law. Objections

to evidentiary offers may be made and shall be noted in the record. Any part

of the evidence may be received in written form.”

Cite as 313 Or App 574 (2021) 577

rules of preservation apply to judicial review of decisions

of administrative agencies); see also Becklin v. Board of

Examiners for Engineering, 195 Or App 186, 199-200, 97

P3d 1216 (2004), rev den, 338 Or 16 (2005) (“In general, to

preserve a contention for appeal or judicial review, a party

must provide the lower court or agency with an explanation

of his or her objection that is specific enough to ensure that

the court or agency is able to consider the point and avoid

committing error.”). In taking exception to the ALJ’s pro-

posed order, petitioner argued that “ORS 676.175(3) relates

to discovery” and that OEC 705 is instructive once an expert

testifies about the contents of a report. (Emphasis omitted.)

Petitioner further argued that “[t]here is no explicit prohi-

bition on disclosure of expert reports if an expert testifies

about and relies on the report at a contested case hear-

ing.” (Emphasis omitted.) Petitioner’s argument—which was

focused on why the statutory exemption did not apply at all—

was not specific enough to alert the board that petitioner

also was arguing that the exemption in ORS 676.175(3)(d)

was subject to a waiver analysis. Moreover, as noted above,

we reject petitioner’s reliance on importing concepts embed-

ded in the evidence code to contravene the plain text of ORS

676.175(3)(d).

In short, the plain language of ORS 676.175(3)(d)

exempts from disclosure reports of expert witnesses. Fur-

ther, petitioner’s arguments on review are either unpre-

served or have not persuaded us that there is any exception

to that broad exemption from disclosure. See ORS 174.010

(providing that the court’s role in statutory interpretation

“is simply to ascertain and declare what is, in terms or in

substance, contained therein, not to insert what has been

omitted, or to omit what has been inserted”).

Affirmed.