What's Happening at Hart Wagner
- Stipulated Orders from the Oregon Medical Board: Lesson Learned
- Appellate Team Wins Precedential Decision in the Court of Appeals on Free Speech Case
- Appellate Attorney Janet Schroer Contributes to Win in Oregon Supreme Court
- Partner Matt Kalmanson Wins Appeal in “Second Amendment Sanctuary” Case
- Department of Health & Human Services - Office of Civil Rights Enters Settlement with Dental Group
Stipulated Orders from the Oregon Medical Board: Lesson Learned
If you are involved in the disciplinary process with a state licensing board, particularly the Oregon Medical Board, be forewarned. It is important for you to understand the risks associated with signing a proposed stipulated order without consulting with a lawyer experienced in this area. Any Order that you sign that essentially “settles” the case between you and the Board may have consequences that are severe and amount to a defacto revocation of your license. If your national licensing board requires its members to carry an “unrestricted license to practice,” any limitation on that license may result in a “withdrawal” of your board certification. Without a board certification, you will likely not be accepted on insurance panels or a hospital medical staff until the restriction is lifted. Without panel membership, you essentially become unemployable. As an example, I once represented a family medicine physician who admittedly had a substance abuse problem. He was reported for suspected abuse and an investigation commenced. He was given the option of signing up with the Health Professional Service Program (HPSP), which is a monitoring program that works with the OMB. He accepted, and a public order was entered that required, as part of his settlement, that he continue participation in the HPSP. Seems fair enough, right? Not so. This physician came to me after he signed the agreement because the American Board of Family Medicine determined that the contract he signed with the HPSP, which was mentioned in the public order, contained a section that states the enrollee would not prescribe controlled substances to friends or family. Unfortunately, the ABFM withdrew his board certification because of this clause. We appealed, arguing (among other things) the OMB states in their literature that this practice is not recommended and, further, they have pursued discipline for this behavior. Therefore, it was no more onerous than what is required of physicians without an HPSP agreement. The ABFM denied the appeal, nonetheless. The physician who did the right thing, admitted wrongdoing and sought help for his disease, was licensed but unemployable. Placing a person who is already battling addiction into this situation is a recipe for disaster and failure. The law failed this physician and his patients, as did the Board and his colleagues on the ABFM. But, the story serves as a reminder for me every day I see a proposed stipulated order. The devil is in the details.
Appellate Team Wins Precedential Decision in the Court of Appeals on Free Speech Case
Appellate attorneys Janet Schroer and Taylor Lewis won an appeal for the City of Springfield from two judgments based on a trial court’s finding that an anti-abortion protester violated City of Springfield noise ordinance, resulting in fines. In City of Springfield v Kellim, 324 Or App 614 (2023), the Court of Appeals rejected the protester’s arguments on appeal that he was improperly convicted based on his exercise of his constitutional rights to free speech under both the U.S. Constitution, the First and Fourteenth Amendments and the Oregon Constitution, Article I section 8. The court found that the protester’s “as applied” arguments failed, as the City is permitted to impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, are narrowly tailored to serve significant governmental interest, and leave open alternative channels for communication of the information. The court found ordinance in question met this test.
Further, the court rejected the protester’s arguments that the ordinance was void for vagueness, and his overbreadth facial challenge to the ordinance, thereby affirming the protester’s convictions.
Appellate Attorney Janet Schroer Contributes to Win in Oregon Supreme Court
Appellate attorney Janet Schroer wrote an amicus brief on behalf of the United States Chamber of Commerce, American Property Casualty Insurance Association and American Tort Reform Association, filed jointly with Oregon Association of Defense Counsel, advocating for the limitation of the “substantial factor” causation jury instruction and confirming that “but-for” causation remains the standard instruction in Oregon tort cases. The Oregon Supreme Court discussed and affirmed the causation principles announced in Joshi v Providence, a frequently cited causation case Janet successfully handled in the Oregon Supreme Court in 2006. The court affirmed the “but-for” causation instruction correctly describes the necessary “cause-in-fact” element in most negligence cases, and rejected plaintiffs and their amicus’ position that a substantial factor instruct, rather than “but-for” must be given in any case where there is more than one cause of the alleged harm. The court also rejected plaintiffs’ position that “substantial factor” instruction must be given in all injury cases involving a plaintiff with a prior infirm condition. Haas v Estate of Carter, 370 Or 742 (2023)
Partner Matt Kalmanson Wins Appeal in “Second Amendment Sanctuary” Case
Matt Kalmanson represented Columbia County in its appeal from a dismissal of a lawsuit that it filed regarding the validity of a “Second Amendment Sanctuary” ordinance. Matt procured for our client a reversal of the trial court’s decision dismissing the case, which led the Court of Appeals to invalidate the ordinance. Please click here to read the opinion, and the Oregonian’s description of the case here.
Department of Health & Human Services – Office of Civil Rights Enters Settlement with Dental Group
On December 14, 2022, the Department of Health and Human Service – Office of Civil Rights entered a settlement with a dental group for responding to negative online reviews with Protected Health Information (PHI). New Vision Dental agreed to pay $23,000 and entered into a corrective action plan with 2 years of monitoring. Providers should not respond to social media/review posts online without consulting with counsel before doing so. There may be other, less risky, alternatives. In the vast majority of cases, an online response is likely not worth the risk, as each PHI violation gives rise to a $50,000 fine.
Trial Attorney Mike Wiswall Obtains Defense Verdict After 12-day Trial
Mike Wiswall and his trial team secured a defense verdict in a medical malpractice case in favor of a gastroenterologist and his clinic. The plaintiff alleged that his procedure should have occurred in the hospital setting given his poor cardiopulmonary status and compromised state of health, as well as predictive factors to indicate that he would be a difficult intubation. There was also a separate claim that he was not properly advised of the risks of the procedure or the alternative of having it performed in the hospital. Plaintiff alleged that he suffered an anoxic brain injury resulting in cognitive impairment and memory loss, as well as other injuries. He requested $6M for his damages.
Following a 12-day trial, the Multnomah County jurors returned with a unanimous defense verdict on the negligence claim and 11-1 in favor of the defendants on the informed consent claim.
Mike Wiswall Named 2023 Best Lawyers® “Lawyer Of The Year” in Portland, Oregon
Congratulations to Mike Wiswall for being recognized by Best Lawyers® as the 2023 “Lawyer of the Year” for Medical Malpractice Law – Defendants.
Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. These lawyers are selected based on particularly impressive voting averages received during the peer review assessments.
Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.
In addition to the “Lawyer of the Year” award, Mike Wiswall is also listed in the 2023 Edition of The Best Lawyers in America in the following practice areas:
Ethics and Professional Responsibility Law
Legal Malpractice Law – Defendants
Medical Malpractice Law – Defendants
Professional Malpractice Law – Defendants
Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.
Karen O’Kasey Named 2023 Best Lawyers® “Lawyer Of The Year” in Portland, Oregon
Congratulations to Karen O’Kasey for being recognized by Best Lawyers® as the 2023 “Lawyer of the Year” for Legal Malpractice Law – Defendants.
Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. These lawyers are selected based on particularly impressive voting averages received during the peer review assessments.
Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.
In addition to the “Lawyer of the Year” award, Karen O’Kasey is also listed in the 2023 Edition of The Best Lawyers in America in the following practice areas:
Ethics and Professional Responsibility Law
Legal Malpractice Law – Defendants
Medical Malpractice Law – Defendants
Professional Malpractice Law – Defendants
Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.
Eight Hart Wagner Attorneys Recognized In The 2023 Edition Of Best Lawyers In America®
We would like to congratulate eight of our attorneys that have been recognized and named to the 2023 edition of The Best Lawyers In America®:
Troy Bundy (recognized since 2012)
Health Care Law
Litigation – Health Care
Medical Malpractice Law – Defendants
Matt Kalmanson (recognized since 2016)
Appellate Practice
Commercial Litigation
Litigation – Health Care
Karen O’Kasey (recognized since 2012)
Ethics and Professional Responsibility Law
Legal Malpractice Law – Defendants
Medical Malpractice Law – Defendants
Professional Malpractice Law – Defendants
Aaron Potter (recognized since 2019)
Medical Malpractice Law – Defendants
Janet Schroer (recognized since 2006)
Appellate Practice
Bet-the-Company Litigation
Personal Injury Litigation – Defendants
Professional Malpractice Law – Defendants
Joe Traylor (recognized in 2023)
Litigation – Construction
Gordon Welborn (recognized since 2012)
Ethics and Professional Responsibility Law
Legal Malpractice Law – Defendants
Medical Malpractice Law – Defendants
Professional Malpractice Law – Defendants
Mike Wiswall (recognized since 2012)
Ethics and Professional Responsibility Law
Legal Malpractice Law – Defendants
Medical Malpractice Law – Defendants
Professional Malpractice Law – Defendants
About Best Lawyers®
Best Lawyers has published their list for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 75 countries. Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.
Hart Wagner Adds Jason Cohen to Medical Malpractice and Employment Litigation Team
We’re thrilled to announce that litigation attorney Jason Cohen has joined the firm’s preeminent medical malpractice and employment litigation team. Jason’s practice focuses on defending hospitals, medical clinics, and healthcare professionals in medical malpractice and wrongful death actions in Oregon and Washington State Courts. Additionally, he will defend employers in employment actions. Jason received his law degree from Lewis & Clark Law School, graduating cum laude. During law school, Jason was a law clerk for the Honorable Ann Aiken in the U.S. District Court of Oregon. Before joining Hart Wagner, Jason worked for a number of small civil litigation firms where he cultivated and refined his litigation skills. Outside of the office, Jason serves as an Officer for the Eliot Neighborhood Association Land Use and Transportation Committee.