Hofer v. Or. Health & Sci. Univ.

• Decision Date: 18 May 2022
• Docket Number: A172328
• Parties: Linda Sue HOFER, Plaintiff-Appellant, v. OREGON HEALTH AND SCIENCE UNIVERSITY, Defendant-Respondent.
• Court: Oregon Court of Appeals

319 Or.App. 603

511 P.3d 414

Linda Sue HOFER, Plaintiff-Appellant,

v.OREGON HEALTH AND SCIENCE UNIVERSITY, Defendant-Respondent.

A172328

Court of Appeals of Oregon.

Argued and submitted December 31, 2020.

May 18, 2022

David Wallace, Portland, argued the cause for appellant. Also on the brief was Wallace Law Firm.

Janet M. Schroer, Portland, argued the cause for respondent. Also on the brief were Holly E. Pettit and Hart Wagner LLP.

Before Mooney, Presiding Judge, and Pagán, Judge, and DeVore, Senior Judge.^*

MOONEY, P. J.

Plaintiff sued Oregon Health and Science University (OHSU) for damages that she alleges she sustained after two of its employed physicians typed false statements into her medical record, which is maintained by OHSU in its electronic health records (Epic EHR) database. The statements in question include that plaintiff "obtained duplicate prescriptions, breached a medication contract and lied about methadone prescriptions." Plaintiff sought recovery under two legal theories: defamation and medical negligence.¹ The trial court concluded, on OHSU's motions for summary judgment, that OHSU was entitled to prevail (1) on plaintiff's defamation claims because those claims were barred by absolute privilege and (2) on her medical negligence claim because there were "insufficient facts to prove a basis" for that claim. Plaintiff appeals from the general judgment dismissing her claims, assigning error to the trial court's granting of OHSU's summary judgment motions. For the reasons that follow, we conclude that absolute privilege bars plaintiff's defamation claim and that the trial court did not err in dismissing plaintiff's negligence claim because no issue of material fact exists with respect to that claim and OHSU is entitled to prevail. We, therefore, affirm.

FACTUAL BACKGROUND

In reviewing the trial court's summary judgment ruling, we view the record in the light most favorable to the nonmoving party—here, plaintiff—resolving all reasonable inferences in her favor. Jennewein v. MCIMetro Access Transmission Services , 308 Or. App. 396, 400, 481 P.3d 939 (2021). The relevant facts are not in dispute, and we state them in accordance with the standard of review.

Plaintiff has a movement disorder known as restless leg syndrome

(RLS). When she lived in the State of Washington, her physician treated her RLS with methadone.

After moving from Washington to Oregon, plaintiff sought to establish care with an Oregon physician who would be willing to continue that same course of treatment. To that end, plaintiff saw Dr. MacDonald, a physician in the third year of her residency training program at OHSU's neurology clinic. MacDonald provided plaintiff with a prescription for a one-month supply, followed by a prescription for a three-month supply, of methadone

to allow her time to establish a permanent relationship with a physician who would assume care of her RLS. Plaintiff subsequently met with a different physician, who agreed to continue the methadone treatment if plaintiff would provide a urine sample and sign a medication contract. Plaintiff was unable to give a urine sample and she left the appointment. She did not return to that clinic.

Plaintiff returned to defendant's neurology clinic on May 24, 2017, approximately nine months after her first visit there, and again saw MacDonald. MacDonald declined to prescribe additional methadone

for plaintiff at that time and documented the medical encounter in plaintiff's medical record as follows:

"I have not seen [plaintiff] since her August 2016 initial visit, at which time I gave her a three month prescription for methadone

. I gave her another 3 month prescription in December, at which time I told her it was possible that I would not be able to continue filling the prescription given the limitations to my clinic schedule, but that I would continue to explore options. I have not heard from her since that time until she appeared in my clinic today.

"In December, she established care with a new PCP in the family medicine clinic at Gabriel Park, who was willing to take on prescription of her methadone. She was seen on 3/10, at which time she signed a medication contract and was asked to take a urine test. She did not complete the urine test and refused to return to take the test on another day (per my discussion with her PCP, became irate and left the clinic suddenly), and therefore her care was terminated with that physician.

"In my clinic today, she appeared highly anxious. She did not make eye contact with me and answered pleasantries and preliminary history questions with one word answers.

I probed a bit as to why she was in my clinic now after having been lost to follow up for several months. She stated that she was here for methadone

prescription. I asked if she had seen any other doctors for prescriptions, and she said no. I asked specifically about the family medicine clinic, where it seemed she had a willing provider, and she initially said that her PCP there had left and therefore couldn't prescribe the methadone, which was why she didn't obtain the prescription there. I felt that if not an outright lie (indeed, her PCP would be leaving at the end of the year), this was certainly a misleading response. When I told her that I had spoken to that doctor, she eventually stated that her PCP asked her to provide a urine sample, and she was unable to because she had just used the bathroom. She felt it was undue hardship to come back because the drive was too far. She specifically stated that the reason she did this was because she already had an appointment with me. However, mychart documentation does not corroborate this, and in fact, her appointment with me was not scheduled until 4/12.

"Her behavior is very concerning to me - despite telling me that no one has been willing to prescribe for her, she did in fact have a willing prescriber for methadone, the barrier to which was her unwillingness to complete a urine test. Although by history and chart review she does seem to have a reasonable indication for methadone, I am unwilling to continue to prescribe this for her at this time in light of her behavior. Her behavior both outside my clinic as well as in my office today demonstrates numerous red flags (which she did not exhibit at our initial visit), and I think she requires a prescriber with more experience with medication contracts. I offered her several other non-narcotic medication options which are approved for treatment of RLS, which she declined. She left very shortly thereafter in the middle of our conversation."

MacDonald's attending physician, Dr. Bernard, reviewed the May 24, 2017, encounter as part of her supervisory role in MacDonald's residency training program and she, in turn, documented the following in plaintiff's medical chart:

"I personally interviewed the patient, performed the pertinent parts of the physical examination and personally formulated the plan with the resident [MacDonald]. I agree with the resident[’]s documentation and have documented any additions or exceptions. The patient has broken trust with another clinic at OHSU regarding methadone maintenance

, and obtained duplicate prescriptions, and then left our clinic precipitously. She will not be rescheduled due to severance of trust and contract with providers."

Bernard later corrected that note by removing the language that said that she had "personally" evaluated plaintiff and "performed" parts of the exam because, in fact, she had not done so. She also acknowledged in deposition testimony that it was incorrect to have stated that plaintiff had obtained "duplicate prescriptions."

Plaintiff ultimately moved back to Washington in order to obtain care and treatment of her movement disorder from her previous Washington physician.

PROCEDURAL BACKGROUND

Plaintiff filed this lawsuit in April of 2018. A round of ORCP 21 A pleading motions was filed and litigated, including one that sought dismissal of the medical negligence claim on the grounds that plaintiff had not stated facts sufficient to constitute such a claim. The court granted OHSU's ORCP 21 A motion, noting its view that

"[f]rankly, in this case, at least thus far, I don't think the complaint is sufficient to allege that there was a standard of care that included a duty to protect against psychic harm. And I don't think the claim alleges any clear cut psychological harm that was suffered by the Plaintiff."

The court gave plaintiff leave to amend her complaint, which she did. OHSU filed an answer generally denying wrongdoing and raising several affirmative defenses including, among others, failure to state facts sufficient to constitute a negligence claim and, with respect to the defamation claims, absolute privilege.

OHSU filed its first motion for summary judgment raising notice issues under the Oregon Tort Claims Act² and seeking dismissal of the medical negligence claim for lack of sufficient facts to support that claim. The trial court granted summary judgment in favor of OHSU and against plaintiff on the negligence claim "because there are insufficient facts to prove a basis for Plaintiff's claims." OHSU filed another motion for summary judgment arguing that (1) the allegedly defamatory statements entered into plaintiff's medical record are subject to absolute privilege and (2) plaintiff could not "establish the requisite elements of a claim for defamation." The court granted that motion on the basis of absolute privilege. Final judgment was entered, and this appeal followed.

THE DEFAMATION CLAIMS

Plaintiff claims that statements contained within MacDonald's and Bernard's post-visit notes are false and defamatory, and that those notes were "entered and published" into her medical record, which is maintained by OHSU in its Epic EHR database, where those notes are available to be seen by healthcare providers who query that system in relationship to providing care and treatment for plaintiff. OHSU asserts that it is a part of state...