Augustus v. Oregon State Board of Nursing

392 P.3d 788, 284 Or. App. 420, 2017 Ore. App. LEXIS 389
CourtCourt of Appeals of Oregon
DecidedMarch 22, 2017
Docket1201497; A156473
StatusPublished
Cited by3 cases

This text of 392 P.3d 788 (Augustus v. Oregon State Board of Nursing) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Augustus v. Oregon State Board of Nursing, 392 P.3d 788, 284 Or. App. 420, 2017 Ore. App. LEXIS 389 (Or. Ct. App. 2017).

Opinion

HADLOCK, C. J.

Petitioner seeks judicial review of a final order of the Oregon State Board of Nursing suspending petitioner’s psychiatric mental-health nurse-practitioner certificate for 60 days. On review, we write only to address the arguments that petitioner makes in conjunction with her first assignment of error, in which she challenges the board’s determination that she committed fraud.1 The board contends, among other things, that each of those arguments is unpre-served. We agree and, accordingly, affirm.

We state the facts relevant to petitioner’s first assignment of error as the board found them.2 At the time of the events giving rise to this case—events that involve petitioner’s interactions with one particular patient—petitioner was a certified psychiatric mental-health nurse practitioner. Petitioner provided counseling and medication management for the patient beginning in December 2008. The patient was a minor when he began treatment but turned 18 while still under petitioner’s care.

At the patient’s final session with petitioner in December 2010, petitioner advised the patient’s mother that his account balance would need to be paid in full by the time of his next appointment, in January 2011. The patient missed the January 2011 appointment. Later that month, petitioner left a voicemail message on the patient’s mother’s phone, reminding her of the balance due on the account and advising her that the patient now owed an additional fee for the missed appointment. Another appointment for the patient was scheduled in February. Two days before that scheduled appointment, petitioner again left a voicemail message with the patient’s mother reminding her that the balance on the [422]*422account needed to be paid before the appointment. On the morning of the scheduled appointment, petitioner left a message for the patient’s mother, cancelling the appointment because of the unpaid balance. Later that day, the patient’s stepfather left a voicemail for petitioner, informing her, in abusive terms, that she would not be receiving payment and that the patient would seek treatment elsewhere.

The patient made no further attempts to reschedule his appointment with petitioner, and he began receiving treatment elsewhere. A few days after the cancelled February appointment, petitioner left a voicemail message on the patient’s mother’s phone, stating, in part:

“[Y]ou have a balance due. You need to be accountable and pay your bill. Um and uh then I will release those records. Um but it will not happen until I can get to it, and um you do need to stop calling me, um don’t make any threats because that um * * * you know I can go ahead, too and call the police about you know, your husband talked to me, the last time on the phone. So um pay the balance, find out, be accountable, what the amount is. I have it with me right now. And um it’ll all work out just fine. Bye, Bye.”

Petitioner had no further communication with the patient’s mother or stepfather.

Over the next year, the patient’s new care provider attempted unsuccessfully to obtain the patient’s records from petitioner. The patient also asked petitioner to send his records to the Navy, but petitioner informed him that he would need to sign a release and pay for copies of his records. In January 2012, the patient’s mother filed a complaint with the “federal Office for Civil Rights,” asserting that petitioner had wrongfully refused to provide the patient with his records until he paid the balance on his account.

In late 2012, the board issued a “Notice of Proposed 60 Day Suspension of Nurse Practitioner Certificate” to petitioner, based on allegations of fraud and conduct derogatory to the standards of nursing in accordance with ORS 678.111 and OAR 851-045-0070.3 At petitioner’s request, a hearing [423]*423on that notice was held before an administrative law judge (ALJ). Petitioner appeared without counsel and testified on her own behalf. Following the hearing, the ALJ issued a proposed order that determined, among other things, that one of petitioner’s February 2011 voicemail message to the patient’s mother constituted fraud, for purposes of ORS 678.111(1)(d). The ALJ explained that conclusion as follows:

“ORS 678.111(l)(d) prohibits fraud or deceit in the practice of nursing. Fraud means ‘an instance or act of trickery or deceit * * * an intentional misrepresentation * * * for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him * * * ’ Webster’s Third New Int’l Dictionary 904 (unabridged ed 2002). Deceit means ‘the act or practice of deceiving (as by falsification, concealment, or cheating) * * * false representation used to defraud another ***.’ (Id. at 584.) These definitions indicate that an intentional or false misrepresentation is not enough. There must be an illicit purpose to the statement, such as trickery or cheating, to support a finding of fraud or deceit.
“In the February *** voice mail message, [petitioner] stated that she would not release Patient’s records until the outstanding account balance was paid. [ALJ states an opinion regarding when a provider may lawfully deny a request for records.] [Petitioner’s] recorded demand that the account be paid in full before releasing Patient’s records was an unlawful demand in which she intentionally misrepresented the law to induce payment on the account balance. [Petitioner’s] conduct constituted fraud and deceit in the practice of nursing.”

Petitioner, still unrepresented, filed an extensive list of exceptions to the proposed order.

[424]*424In its final order, the board adopted the ALJ’s determination that petitioner had committed fraud; the pertinent part of the final order is materially identical to the part of the ALJ’s proposed order quoted above. Ultimately, the board suspended petitioner’s certificate for 60 days based on its conclusion that petitioner had committed fraud and had violated ORS 678.111 in other ways.

As noted, petitioner’s first assignment of error challenges the board’s determination that she committed fraud. She makes three arguments in conjunction with that assignment of error, which we address in turn.

First, petitioner argues that the board applied an incorrect definition of “fraud.” Instead of relying on the Webster’s dictionary definition, petitioner contends, the board should have applied a nine-part common-law test for fraud that has developed in other contexts. See, e.g., Conzelmann v. N.W.P. & D. Prod. Co., 190 Or 332, 350, 225 P2d 757 (1950) (setting forth test). Petitioner did not include that argument in her exceptions to the proposed order. The argument is, therefore, not preserved for judicial review, and it presents no basis for reversal of the final order. See Watts v. Board of Nursing, 282 Or App 705, 714, 386 P3d 34 (2016) (“[T]he court will not review arguments presented for the first time on judicial review!.]”).

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Cite This Page — Counsel Stack

Bluebook (online)
392 P.3d 788, 284 Or. App. 420, 2017 Ore. App. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/augustus-v-oregon-state-board-of-nursing-orctapp-2017.