Boyd v. Legacy Health

• Decision Date: 02 March 2022
• Docket Number: A169425
• Citation: 318 Or.App. 87,507 P.3d 715
• Parties: Blaine Justin BOYD, Plaintiff-Appellant, v. LEGACY HEALTH, Defendant-Respondent.
• Court: Oregon Court of Appeals

318 Or.App. 87

507 P.3d 715

Blaine Justin BOYD, Plaintiff-Appellant,

v.LEGACY HEALTH, Defendant-Respondent.

A169425

Court of Appeals of Oregon.

Argued and submitted July 30, 2020.

March 2, 2022

Justin Steffen, Milwaukie, argued the cause for appellant. Also on the briefs was Steffen Legal Services, LLC.

Crystal S. Chase, Portland, argued the cause for respondent. Also on the brief were Brenda K. Baumgart, Caroline J. Livett and Stoel Rives, LLP.

Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and DeHoog, Judge pro tempore.^*

DeHOOG, J. pro tempore Plaintiff, a former employee of defendant, Legacy Health, appeals a judgment dismissing his claims for statutory retaliation and common-law wrongful discharge. The trial court granted defendant's motion for summary judgment on those claims, concluding that there were no triable issues of fact as to whether defendant fired plaintiff because plaintiff had engaged in a statutorily protected activity or an activity that fulfilled an important public duty, as required to establish plaintiff's claims. Plaintiff raises a single assignment of error in which he argues that the trial court erred in concluding that he had not raised a genuine issue of fact as to any of his claims. We agree with plaintiff that, to the extent that the trial court treated his attorney's arguments at the summary-judgment hearing as a concession that defendant had fired plaintiff for a lawful reason, the court erred. We further agree that, in the absence of such a concession, the trial court erred in concluding that plaintiff had not raised a genuine issue of material fact as to defendant's reason for terminating plaintiff's employment. As a result, it was error to grant defendant's motion for summary judgment, and we, therefore, reverse and remand.

Under ORCP 47 C, summary judgment is appropriate when

"the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law. *** The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial."

See Jones v. General Motors Corp. , 325 Or. 404, 420, 939 P.2d 608 (1997). That standard is met when "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C.

We review an order granting summary judgment for errors of law. Ellis v. Ferrellgas, L.P. , 211 Or. App. 648, 652, 156 P.3d 136 (2007). In conducting our review, we view the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party, who in this case is plaintiff. Jones , 325 Or. at 408, 939 P.2d 608. We state the facts in accordance with that standard.

Plaintiff is a registered nurse who previously worked nights for defendant, Legacy Health, primarily in its Neuro Trauma Intensive Care Unit. During the night of September 6, 2016, plaintiff was working at the hospital when a medical alarm associated with one of his assigned patients went off. Plaintiff's coworkers later reported that they had initially been unable to find him, but, according to one coworker, he was eventually found sleeping under a blanket in the same patient's room. Separately, but during the same shift, plaintiff noticed that Green, another nurse at the hospital, had made medication and charting errors involving another of plaintiff's patients.

On September 15, 2016, plaintiff discussed the September 6 incident with Cecil, the managing nurse for his unit. Plaintiff denied the allegation that he had been sleeping on duty. Following his meeting with Cecil, plaintiff told a coworker about the medication and charting errors that he had found in Green's work. That coworker shared plaintiff's observations with Green, who in turn asked Cecil to review the medical records for any errors that she might have made.

Cecil again met with plaintiff, this time to discuss his report that Green had made medication and charting errors. Cecil told plaintiff that she had been unable to find the errors that he had reportedly found. When plaintiff asked Cecil whether he should file an "ICARE" report, which he understood to be standard procedure, Cecil instructed him not to do so.¹ On October 7, Cecil issued plaintiff a written "CORRECTIVE ACTION" stating that plaintiff had been asleep or given the appearance of sleeping during his shift on September 6 and that he had falsely reported charting errors by Green, "possibly in retaliation for her having reported that you had not been responding to patient alarms and had been discovered in the patient's room." However, another nurse, Shambry, and not Green, had made that report to Cecil.

Two days after receiving the written reprimand from Cecil, plaintiff went to the hospital on a night that he was not scheduled to work and accessed defendant's medical-records system. Plaintiff accessed defendant's records at that time to verify for himself whether the charting errors that he had observed were in fact present. As a result of that review, plaintiff determined that Green had made charting or medication errors.

The following week, plaintiff once more met with Cecil and again told her what he had discovered in his patient's records. Cecil responded by requesting an audit related to defendant's privacy policies. The resulting audit revealed that plaintiff had accessed his patient's chart at a time when he had not been scheduled to work.

The discovery that plaintiff had accessed a patient's records while off shift resulted in a meeting involving interim manager Doepken (who had recently replaced Cecil as plaintiff's managing nurse following Cecil's retirement), Schaff, a representative from defendant's human-resources (HR) department, and plaintiff. At that meeting, which took place November 11, 2016, Doepken asked plaintiff why he had accessed the medical records on October 9, when he had not been scheduled to work. Plaintiff did not tell Doepken that he had accessed the records due to his concerns about Green's patient care or chart keeping, or, for that matter, for any other reason.

At that point, Doepken told plaintiff that she would have to take the audit report at "face value" and that, as a result, his employment would be terminated. That is, because plaintiff had accessed his patient's medical records without authorization, he had violated defendant's privacy policies. On November 14, plaintiff received a termination letter from Doepken stating that his employment was being terminated because he had violated defendant's Health Insurance Portability and Accountability Act (HIPAA) privacy policy. Doepken did not assert that plaintiff's conduct had somehow violated HIPAA itself, and she was unable to identify any specific provision of defendant's privacy policy that plaintiff had violated; she instead appears to have relied on the fact that she did not know why plaintiff had accessed the records when he did and that she could not know whether plaintiff had used or intended to use the information for an improper purpose.

Following his termination, plaintiff sued defendant and asserted four claims: (1) statutory retaliation under ORS 659A.199 (prohibiting discrimination due to employee's good-faith report of violation of law); (2) statutory retaliation under ORS 441.181 (prohibiting retaliatory action against nursing staff by hospital); (3) common-law wrongful discharge; and (4) an unpaid wage claim. The parties settled plaintiff's wage claim before trial. Plaintiff's remaining three claims were all premised on the theory that his employment had been wrongfully terminated in retaliation for his report of medication and charting errors.

Defendant moved for summary judgment on each of plaintiff's claims. Defendant argued that plaintiff had not engaged in protected activity, as required to establish liability under ORS 659A.199 and ORS 441.181, and had not engaged in an activity that fulfilled an important public duty, as required by the common-law wrongful-discharge claim. Alternatively, defendant argued that plaintiff had not produced evidence raising a genuine issue of material fact as to whether defendant had terminated plaintiff's employment because he had engaged in a protected activity or an activity that fulfilled an important public duty. In that regard, defendant argued that the summary-judgment record established that the only reason that plaintiff's employment had been terminated was that he had inappropriately accessed a patient's medical records in violation of defendant's HIPAA privacy policy.

Plaintiff responded to defendant's first argument by identifying various Oregon administrative rules that govern a nurse's standard of care, arguing that those rules imposed a duty on plaintiff to report medication and charting errors. In response to defendant's alternative argument regarding causation, plaintiff conceded that he had engaged in the conduct in question—that is, he had accessed patient records at a time when he was not on duty—but argued that his conduct had not been inappropriate and that defendant's stated reason for terminating his employment was merely pretextual.

At the summary-judgment hearing, defendant asserted that plaintiff's briefing effectively conceded that the sole reason that defendant had fired plaintiff was that he had inappropriately accessed a patient's medical charts. The court asked plaintiff's attorney to clarify whether in fact that point was conceded. Counsel initially agreed that he had made the concession; counsel quickly clarified, however, that plaintiff's position was that, although he acknowledged having accessed those records, he did not concede that he had done so inappropriately . Following that exchange, the trial court ruled that the access had indeed been inappropriate and that defendant had terminated...