2017 ORS 127.885¹
Immunities
  • basis for prohibiting health care provider from participation
  • notification
  • permissible sanctions

§4.01. Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions. Except as provided in ORS 127.890 (Liabilities):

(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with ORS 127.800 (Definitions) to 127.897 (Form of the request). This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner.

(2) No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating or refusing to participate in good faith compliance with ORS 127.800 (Definitions) to 127.897 (Form of the request).

(3) No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of ORS 127.800 (Definitions) to 127.897 (Form of the request) shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.

(4) No health care provider shall be under any duty, whether by contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of medication to end his or her life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient’s request under ORS 127.800 (Definitions) to 127.897 (Form of the request), and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient’s relevant medical records to the new health care provider.

(5)(a) Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in ORS 127.800 (Definitions) to 127.897 (Form of the request) on the premises of the prohibiting provider if the prohibiting provider has notified the health care provider of the prohibiting provider’s policy regarding participating in ORS 127.800 (Definitions) to 127.897 (Form of the request). Nothing in this paragraph prevents a health care provider from providing health care services to a patient that do not constitute participation in ORS 127.800 (Definitions) to 127.897 (Form of the request).

(b) Notwithstanding the provisions of subsections (1) to (4) of this section, a health care provider may subject another health care provider to the sanctions stated in this paragraph if the sanctioning health care provider has notified the sanctioned provider prior to participation in ORS 127.800 (Definitions) to 127.897 (Form of the request) that it prohibits participation in ORS 127.800 (Definitions) to 127.897 (Form of the request):

(A) Loss of privileges, loss of membership or other sanction provided pursuant to the medical staff bylaws, policies and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning provider’s medical staff and participates in ORS 127.800 (Definitions) to 127.897 (Form of the request) while on the health care facility premises, as defined in ORS 442.015 (Definitions), of the sanctioning health care provider, but not including the private medical office of a physician or other provider;

(B) Termination of lease or other property contract or other nonmonetary remedies provided by lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in ORS 127.800 (Definitions) to 127.897 (Form of the request) while on the premises of the sanctioning health care provider or on property that is owned by or under the direct control of the sanctioning health care provider; or

(C) Termination of contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in ORS 127.800 (Definitions) to 127.897 (Form of the request) while acting in the course and scope of the sanctioned provider’s capacity as an employee or independent contractor of the sanctioning health care provider. Nothing in this subparagraph shall be construed to prevent:

(i) A health care provider from participating in ORS 127.800 (Definitions) to 127.897 (Form of the request) while acting outside the course and scope of the provider’s capacity as an employee or independent contractor; or

(ii) A patient from contracting with his or her attending physician and consulting physician to act outside the course and scope of the provider’s capacity as an employee or independent contractor of the sanctioning health care provider.

(c) A health care provider that imposes sanctions pursuant to paragraph (b) of this subsection must follow all due process and other procedures the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.

(d) For purposes of this subsection:

(A) “Notify” means a separate statement in writing to the health care provider specifically informing the health care provider prior to the provider’s participation in ORS 127.800 (Definitions) to 127.897 (Form of the request) of the sanctioning health care provider’s policy about participation in activities covered by ORS 127.800 (Definitions) to 127.897 (Form of the request).

(B) “Participate in ORS 127.800 (Definitions) to 127.897 (Form of the request)” means to perform the duties of an attending physician pursuant to ORS 127.815 (Attending physician responsibilities), the consulting physician function pursuant to ORS 127.820 (Consulting physician confirmation) or the counseling function pursuant to ORS 127.825 (Counseling referral). “Participate in ORS 127.800 (Definitions) to 127.897 (Form of the request)” does not include:

(i) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;

(ii) Providing information about the Oregon Death with Dignity Act to a patient upon the request of the patient;

(iii) Providing a patient, upon the request of the patient, with a referral to another physician; or

(iv) A patient contracting with his or her attending physician and consulting physician to act outside of the course and scope of the provider’s capacity as an employee or independent contractor of the sanctioning health care provider.

(6) Suspension or termination of staff membership or privileges under subsection (5) of this section is not reportable under ORS 441.820 (Procedure for termination of physician’s privilege to practice medicine at health care facility). Action taken pursuant to ORS 127.810 (Form of the written request), 127.815 (Attending physician responsibilities), 127.820 (Consulting physician confirmation) or 127.825 (Counseling referral) shall not be the sole basis for a report of unprofessional or dishonorable conduct under ORS 677.415 (Investigation of incompetence) (3), (4), (5) or (6).

(7) No provision of ORS 127.800 (Definitions) to 127.897 (Form of the request) shall be construed to allow a lower standard of care for patients in the community where the patient is treated or a similar community. [1995 c.3 §4.01; 1999 c.423 §10; 2003 c.554 §3]

Note: As originally enacted by the people, the leadline to section 4.01 read “Immunities.” The remainder of the leadline was added by editorial action.

Atty. Gen. Opinions

Health facility en­force­­ment of nonparticipa­tion policy against medical per­sonnel, (1999) Vol 49, p 161

Law Review Cita­tions

86 OLR 895 (2007)

Notes of Decisions

Series violates Equal Protec­tion Clause under federal Constitu­tion because defined class is overinclusive and therefore not ra­tionally related to state purpose. Lee v. State of Oregon, 891 F. Supp. 1429 (D. Or. 1995)

United States Attorney General’s rule punishing physicians who issue prescrip­tions under Oregon Death with Dignity Act was invalid intrusion on right of state to determine legitimate medical practices. Oregon v. Ashcroft, 368 F3d 1118 (9th Cir. 2004)

Law Review Cita­tions

74 OLR 449 (1995); 31 WLR 601 (1995); 77 OLR 1027 (1998); 37 WLR 691 (2001); 81 OLR 505 (2002); 41 WLR 863 (2005); 43 WLR 399 (2007); 45 WLR 91, 137 (2008); 91 OLR 457 (2012)

1 Legislative Counsel Committee, CHAPTER 127—Sustaining Treatment Registry; Declarations for Mental Health Treatment; Death With Dignity, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors127.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 127, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano127.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.