Rushton v. Oregon Medical Board

Reports of expert witnesses obtained by health professional regulatory boards in the course of investigation are not disclosed to the licensee or applicant. ORS 676.175(3).

Petitioner sought judicial review of a final order by the Oregon Medical Board (OMB) that imposed sanctions that stemmed from Petitioner's negligence in connection with six patients' medical records. Petitioner raised five assignments of error, though only one was addressed: the board's decision to uphold the administrative law judge's (ALJ) 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. On appeal, Petitioner argued 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. In response, OMB contended that the plain text of the statute controls and that Petitioner failed to preserve the waiver argument. Reports of expert witnesses obtained by health professional regulatory boards in the course of investigation are not disclosed to the licensee or applicant. ORS 676.175(3). The Court held that the plain text of the statute negated Petitioner's argument. Further, the Court held that Petitioner failed to preserve the waiver argument. Affirmed.