LaTulippe v. Oregon Medical Board

424

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

Argued and submitted March 16, affirmed April 19, petition for review denied

September 14, 2023 (Or 371 333)

Steven Arthur LaTULIPPE, MD,

Petitioner,

v.

OREGON MEDICAL BOARD,

Respondent.

Oregon Medical Board

MD22341; A177050

Stephen J. Joncus argued the cause for petitioner. Also

on the reply brief was Joncus Law P. C. On the opening brief

was Steven A. LaTulippe pro se.

Leigh A. Salmon, Assistant Attorney General, argued

the cause for respondent. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.

AOYAGI, P. J.

Affirmed.

Nonprecedential Memo Op: 325 Or App 424 (2023) 425

AOYAGI, P. J.

On September 2, 2021, the Oregon Medical Board

issued a final order by default, revoking petitioner’s medi-

cal license. Petitioner seeks judicial review. In his opening

brief, petitioner assigns error to (1) the board’s failure to

hold a “good cause” hearing before denying his late hearing

request, and (2) the board’s finding that he endangered the

public health and conducted himself in an unprofessional

or dishonorable manner. In his reply brief, petitioner chal-

lenges the board’s reconsideration order of July 7, 2022,

which addresses the late hearing request. We affirm.

Procedural history. The board issued a complaint

and disciplinary notice to petitioner on July 16, 2021.

Petitioner had until August 6, 2021, to request a hearing.

He did not, and the board issued a final order by default

on September 2, 2021, revoking petitioner’s medical license

and assessing a civil penalty. On September 7, 2021, peti-

tioner sent a letter to the board, stating that he had just

returned from a seven-week trip to Arizona to visit family,

that he had been unaware of the complaint and disciplinary

notice until the day before when he received his mail, that

he wanted to immediately petition to vacate the default

order, and that he wished to retain his right to a hearing.

The board responded by letter dated September 15, 2021,

describing the procedural history of the case, stating that

the board “does not vacate a properly issued Order,” and

directing petitioner to the information in the default order

regarding appeal rights.

Petitioner (who was pro se at the time) petitioned for

judicial review of the default order. He filed his opening brief

in April 2022. On July 7, 2022, the board gave notice that

it was withdrawing its default order “for the limited pur-

pose of considering whether petitioner made a request for

a late hearing, and if so, whether petitioner demonstrated

good cause for that request.” The board issued its order on

reconsideration the same day. The board explained that it

had understood the September 7 letter only as a motion to

vacate. Assuming arguendo that it also contained a late

hearing request, the board denied that request on the mer-

its, and it affirmed the default order.

426 LaTulippe v. Oregon Medical Board

Shortly thereafter, petitioner filed a notice of intent

to proceed with judicial review. He then retained counsel,

who filed a reply brief on his behalf. The reply brief includes

a challenge to the board’s denial of the late hearing request

on reconsideration.

Failure to hold a “good cause” hearing. When a

party makes a late hearing request, the board may grant

the request only if the party establishes “good cause for the

failure to timely request the hearing.” OAR 137-003-0528

(1)(b)(A). “If the agency or another party disputes the facts

contained in the explanation of why the request for hear-

ing is late, the agency will provide a right to a hearing on

the reasons why the hearing request is late.” OAR 137-

003-0528(3). Petitioner contends that he was entitled to a

“good cause” hearing in this case. We disagree. There is no

indication that the board was even ruling on a late hearing

request in its September 15 letter, let alone disputing the

facts in petitioner’s letter in doing so. And the board’s recon-

sideration order states unequivocally that the board accepts

the facts in petitioner’s letter for purposes of ruling on the

late hearing request. Petitioner was not entitled to a “good

cause” hearing under OAR 137-003-0528(3). We therefore

reject the first assignment of error.

Denial of late hearing request. In his reply brief, peti-

tioner takes issue with the reconsideration order, specifically

the board’s conclusion that he did not show “good cause” for

a late hearing request. That raises significant procedural

issues. One is jurisdictional: The board contends that even

though it “affirmed” its default order, it made more than

“minor changes” regarding the late hearing request, such

that petitioner needed to file an amended petition for review.

See ORS 183.482(6) (“An amended petition for review shall

not be required if the agency, on reconsideration, affirms the

order or modifies the order with only minor changes.”); D. M.

v. Oregon Health Authority, 296 Or App 397, 400, 439 P3d

576 (2019) (recognizing that, when an amended petition for

review is required under ORS 183.482(6), the failure to file

one deprives this court of jurisdiction). The other pertains

to court rules. Petitioner was entitled to file a supplemental

brief if he wanted to do so. See ORAP 4.35(6) (on judicial

review of an agency order, if the agency reconsiders its order

Nonprecedential Memo Op: 325 Or App 424 (2023) 427

after the petitioner has filed an opening brief, the petitioner

may proceed on the original brief or may file a supplemental

brief). He did not, instead raising in his reply brief what

amounts to a new claim of error regarding the board’s rul-

ing on his late hearing request in the reconsideration order.

See Federal National Mortgage Association v. Goodrich, 275

Or App 77, 86, 364 P3d 696 (2015) (“We will not consider a

ground for reversal that is raised on appeal for the first time

in a reply brief.”).

We disagree with petitioner’s contention that those

procedural issues are “technicalities” or that his previous

pro se status is enough to overlook them. Even if we can

reach the merits, however, petitioner’s argument fails. For

purposes of OAR 137-003-0528, “ ‘good cause’ exists when

an action, delay, or failure to act arises from an excusable

mistake, surprise, excusable neglect, reasonable reliance on

the statement of a party or agency relating to procedural

requirements, or from fraud, misrepresentation, or other

misconduct of a party or agency participating in the pro-

ceeding.” OAR 137-003-0501(7). Here, the board concluded

that petitioner’s failure to make any arrangements for the

forwarding or monitoring of his mail during his seven-week

absence did not qualify as an excusable mistake or excus-

able neglect or otherwise meet the good-cause standard. The

board emphasized OAR 847-001-0050(1), which requires that

licensees “must designate a mailing address on file with the

Board at all times,” and OAR 847-001-0050(4), which warns

that notices sent to the address on file will be considered

sufficient notice of disciplinary proceedings, regardless of

actual notice. The board did not apply the wrong legal stan-

dard, as petitioner contends, nor did it misapply the “good

cause” standard. We therefore reject petitioner’s challenge

to the board’s denial of his late hearing request, both on

procedural grounds and on the merits.

The substance of the default order. In his second

assignment of error, petitioner challenges the substance of

the board’s default order. In doing so, he skims over preser-

vation and the standard of review, without acknowledging

the unique posture of a challenge to a default order. See JGB

Enterprises, LLC v. OLCC, 325 Or App 326, 344-46, 529 P3d

262 (2023) (recognizing open questions as to whether, and

428 LaTulippe v. Oregon Medical Board

to what degree, a licensee may challenge an agency’s final

order by default, where no hearing was held on the proposed

agency action). He also does not acknowledge that, at most,

our review would be limited to whether the board made a

prima facie case. See ORS 183.417(4) (“An order adverse to a

party may be issued upon default only if a prima facie case

is made on the record.”). We need not address those nuances,

however, because we conclude that affirmance is required

here in any event.

The board revoked petitioner’s medical license and

imposed a $10,000 civil penalty based on eight instances of

unprofessional or dishonorable conduct, 22 instances of neg-

ligence in the practice of medicine, and five instances of gross

negligence in the practice of medicine. The board expressly

stated that “[a]ny of Licensee’s acts of unprofessional or dis-

honorable conduct, any single instance of Licensee’s com-

mission of gross negligence in the practice of medicine, or

Licensee’s repeated negligence in the practice of medicine

is each individually a sufficient basis for revocation of his

Oregon medical license.” On judicial review, petitioner has

challenged only one subset of the board’s findings, specifi-

cally those relating to COVID-19 issues. The board is cor-

rect that, because it revoked petitioner’s license on multiple

independent grounds, its order must be affirmed. See Roop

v. Parker Northwest Paving Co., 194 Or App 219, 236, 94

P3d 885 (2004), rev den, 338 Or 374 (2005) (explaining that,

where a trial court relied on alternative bases in making

a ruling, and the appellant assigns error to the ruling but

does not challenge all of the bases, the appellate court “must

affirm” the ruling); Shank v. Board of Nursing, 220 Or App

228, 237-38, 185 P3d 532 (2008) (applying same principle on

judicial review of an administrative order).

Affirmed.