Month: June 2017

Oregon Court of Appeals reverses trial court in my client’s favor – Attorney Fees

This is a case I took up on appeal for another lawyer and won. I represented the plaintiff, the Marandas Family Trust. Plaintiff owns a cabin on Mount Hood. After plaintiff hired defendants to repair the roof of the cabin, plaintiff discovered that the defendants’ repairs were faulty, and the roof had leaked rainwater causing damage inside the cabin. Plaintiff sued. In court-annexed arbitration, plaintiff won almost all the money it sought for the damage to the cabin, plus costs and disbursements, but the arbitrator denied plaintiff’s attorney fees under ORS 20.080(1).  Plaintiff filed exceptions (objections) to the arbitrator’s decision in the circuit court, which the circuit court denied. I was hired to take the appeal. This was a fight over the right to recover statutory attorney fees, and the interpretation of the applicable state statute, ORS 20.080(1). Specifically, the issue was the interpretation of a new clause, added to the statute in 2009.

The Court of Appeals’ opinion

This appeal took four years to reach decision before the Court of Appeals published its detailed opinion, ruling in my client’s favor, and reversing the arbitrator and the Circuit Court below. See Marandas Family Trust v. Pauley, 286 Or App 381 (2017). This is a important win for my client, but it is also an important opinion for the general public and the courts statewide because it interprets and explains one of the 2009 revisions to ORS 20.080(1).

Remand to the Multnomah County Circuit Court

This appeal will now be remanded (returned) to the trial court for further proceedings, to award attorney fees to plaintiff, the Marandas Family Trust.

. . . a little more about reports to the National Practitioner Data Bank (NPDB)

I recently wrote about the consequences of stipulating to a temporary restriction on your medical license.  One such consequence is a report to the National Practitioner Data Bank (NPDB).  A data bank report, like professional discipline on your license, will complicate your professional life.  All too often, however, the focus is on avoiding or mitigating professional discipline while the likelihood of a data bank report and its impact is forgotten.  Whether you are a physician, pharmacist or nurse, the preferred resolution to a Board investigation is both non-disciplinary and not report-able to the NPDB.

The National Practitioner Data Bank (NPDB) guidebooks

Whether an incident must be reported to the National Practitioner Data Bank is well beyond the scope of this writing.  The point of this writing is simply to raise awareness and to provide two NPDB resources, the 200-plus page “guidebook” for the National Practitioner Data Bank and a short summary of NPDB reporting “triggers.

Beware when consenting to a temporary restriction on your medical license

How long? – Longer than you think, plan for the “duration”

Physicians, pharmacists and nurses under Board investigation are occasionally asked to sign an Interim Stipulated Order (ISO) or Interim Consent Order (ICO) accepting a voluntary restriction on their license or, worse, suspending practice pending the outcome of the investigation.  Although it may be suggested that the voluntary temporary restriction could soon be lifted, frequently the process necessary to resolve the issue will take six to 12 months, often longer for physicians due to the complexity and risks associated with a physician’s practice and the Medical Board’s case load.

What else? – Consider the following:

  • National Practitioner Data Bank (NPDB) reports

A physician, pharmacist or nurse consenting to a restriction on his or her license will also need to manage the consequences of a report to the National Practitioner Data Bank (NPDB).  There are many events that will trigger a data bank report and consenting to a restriction on your license to practice medicine, pharmacy or nursing, is one of them.

  •  Board Certification, credentialing, and/or employment

A board certified physician consenting to a restriction on his or her medical license should assume, until it is established otherwise, that his or her board certification will be withdrawn, and that credentialing may be at risk too.  Further, some employer’s will terminate a restricted physician.  The Veterans Administration (VA), for example, requires every physician to have at least one unrestricted medical license.  While it is possible to practice with a restricted license or DEA Registration, it takes planning.

  •  DEA Registrations

A prescribing physician, physician’s assistant (PA), or nurse practitioner (NP) should also consider the impact of a restricted license on his or her DEA Registration.  Remember, in order to hold a DEA Registration, the Drug Enforcement Administration (DEA) requires every DEA Registrant to possess valid state authority to prescribe controlled substances.  Consequently, if you consent to a restriction on your prescribing privileges, or consent to voluntarily withdraw from practice pending the outcome of an investigation, you should be ready for a call from a DEA agent requesting the surrender of your DEA Registration.  Thus far I have had success convincing the DEA to await the outcome of the investigation, but nothing is certain, and you should need to plan accordingly.

Bottom line: Plan for all the consequences of a restricted medical license

If you are a physician, pharmacist or nurse under investigation and your licensing Board requests that you consent to one or more restrictions on your medical license, you need to know that the restriction will probably last more than a few months and there are numerous other consequences to consider depending upon your type of practice and level of licensure.  Each case is different and there may be more to consider than is discussed here. Diligence and planning is required to survive a restriction on your medical license.