Lowry v. Univ. of Or. Med. Sch.

• Decision Date: 28 September 2018
• Docket Number: Case No. 3:16-cv-01049-YY
• Court: U.S. District Court — District of Oregon
• Parties: GIOVANNI LOWRY, Plaintiff, v. UNIVERSITY OF OREGON MEDICAL SCHOOL; OREGON HEALTH & SCIENCE UNIVERSITY; and EVERETT W. LOVRIEN, M.D., Defendants.

GIOVANNI LOWRY, Plaintiff, v. UNIVERSITY OF OREGON MEDICAL SCHOOL; OREGON HEALTH & SCIENCE UNIVERSITY;and EVERETT W. LOVRIEN, M.D., Defendants.

Case No. 3:16-cv-01049-YY

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

September 28, 2018

FINDINGS AND RECOMMENDATIONS

YOU, Magistrate Judge:

PlaintiffGiovanni Lowry("Lowry") alleges claims of medical negligence (Claim One), battery (Claim Two), intentional infliction of emotional distress (Claim Three), lack of informed consent (Claim Four), and breach of fiduciary duty (Claim Five), stemming from infusions of blood products and other medical interventions he received between 1966 and 1983.Defendants University of Oregon Medical School, Oregon Health & Science University ("OHSU"), and a medical doctor employed by OHSU, Everett W. Lovrien, M.D.("Dr. Lovrien")(collectively "defendants") have moved for summary judgment on all five claims.For the reasons set forth below, the motion should be granted with respect to Claim Five and otherwise denied.

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BACKGROUND

The underlying factual background in this case has been set forth in a prior opinion.SeeLowry v. Univ. of Oregon Med. Sch., 3:16-CV-01049-YY, 2017 WL 2450283, at *2-*3(D. Or.June 2, 2017)(ECF #27).Additional facts are incorporated into the analysis below.

STANDARDS

A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."FRCP 56(a).The moving party has the burden of establishing the absence of a genuine dispute of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).Once the moving party does so, the nonmoving party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'"Id. at 324(citingFRCP 56(e))."When judging the evidence at the summary judgment stage, the district court is not to make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party."Musick v. Burke, 913 F.2d 1390, 1394(9th Cir.1990).

In determining what facts are material, the court considers the underlying substantive law regarding the claims.Anderson v. Liberty Lobby, 477 U.S. 242, 248(1986).Only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment.Id.A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.Id. at 248-49.A "scintilla of evidence" or "evidence that is merely colorable or not significantly probative" is insufficient to create a genuine issue of material fact.Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134(9th Cir.2000).

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FINDINGS

Defendants contend that all of Lowry's claims should be dismissed because he failed to provide timely tort claim notice and the two-year statute of limitations bars his claims.Defendants also contend that Claim Five fails because there is no private right of action for a violation of ORS 418.750(1975)(repealed 1993).

I.Tort Claim Notice and the Statute of Limitations

A.Relevant Law

The Oregon Tort Claims Act ("OTCA") governs actions in which a plaintiff seeks relief for torts committed by officers, employees, or agents of a public body within the scope of their employment or duties.ORS 30.265(2).The OTCA provides that for claims other than wrongful death, a claimant must give defendants notice of claims "within 180 days after the alleged loss or injury."ORS 30.275(2)(b).The 180-day notice requirement may be satisfied by the commencement of an action within that period.ORS 30.275(3)(c).Notwithstanding the 180-day notice requirement, an OTCA action must "be commenced within two years after the alleged loss or injury."ORS 30.275(9).

The "discovery rule" applies to both the 180-day notice requirement and the two-year statute of limitations.Johnson v. Multnomah Cnty. Dep't of Cmty. Justice, 344 Or. 111, 118(2008)."The discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim."Gaston v. Parsons, 318 Or. 247, 255(1994)."The general policy behind the 'discovery rule' is to delay the running of the statute of limitations until an injured person knows or should know that [he] has a cause of action so that the law does not strip [him] of a remedy before [he] could know [he] has been wronged."Duncan v. Augter, 62 Or. App. 250, 258(1983).

Under the discovery rule, the limitations period "begins to run when the plaintiff discovers or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility" the injury exists.Gaston, 318 Or. at 256.Otherwise stated, the limitations period does not begin to run until a "plaintiff has a reasonable opportunity to discover his injury and the identity of the party responsible for that injury."Adams v. Oregon State Police, 289 Or. 233, 239(1980).Put yet another way, a statute of limitations does "not begin to run until a reasonably prudent plaintiff perceives both the injury and the role that the defendant has played in that injury."T.R. v. Boy Scouts of America, 344 Or. 282, 291-92(2008).

The "specialized meaning of the word 'injury' . . . does not refer simply to ordinary physical harm, but means a 'legally cognizable harm' that 'consists of three elements: (1) harm; (2) causation; and (3) tortious conduct.'"Zabriskie v. Lowengart, 252 Or. App. 543, 548-49(2012).An injury is discovered "when a plaintiff knows or should have known of the existence of" those three elements.Foster Grp., Inc. v. City of Elgin, 264 Or. App. 424, 431(2014)(citingJohnson, 344 Or. at 118).

"Actual knowledge that each element is present is not required."Gaston, 318 Or. at 256.The plaintiff also need not know the full extent of the alleged injury for the claim to accrue.Raethke v. Oregon Health Sciences Univ., 115 Or. App. 195, 198(1992);Doe v. Am. Red Cross, 322 Or. 502, 513(1996);Dickson v. TriMet, 289 Or. App. 774, 779(2018)("[I]f a plaintiff knows that he or she has suffered some harm and knows that it is the result of tortious conduct, an argument that the plaintiff did not know the full extent of the harm or that those facts had legal significance will be of no avail.")(internal citation and quotations omitted)."On the otherhand, a mere suspicion is insufficient to begin the statute of limitations to run."Gaston, 318 Or. at 256.

"For purposes of determining what facts a plaintiff should have known, '[t]he discovery rule applies an objective standard—how a reasonable person of ordinary prudence would have acted in the same or a similar situation.'"Riverview Condo. Ass'n v. Cypress Ventures, Inc., 266 Or. App. 574, 601(2014)(quotingKaseberg v. Davis Wright Tremaine, LLP, 351 Or. 270, 278(2011))."Ordinarily, the application of that standard presents a factual question for the jury. . . ."Id.Thus, "the question is susceptible to judgment as a matter of law if 'the only conclusion a reasonable jury could reach is that the plaintiff knew or should have known the critical facts at a specified time and did not file suit within the requisite time thereafter.'"Id.(quotingT.R., 344 Or. at 295).Moreover, this court cannot grant summary judgment "if a genuine issue of material fact exists as to when plaintiff discovered or in the exercise of reasonable care should have discovered his 'injury[.]'"Zabriskie, 252 Or. App. at 549.

B.Analysis

On June 15, 2015, Lowry gave notice of his claims pursuant to ORS 30.275(3)(a).ECF #42-12.He indicated a discovery date of April 27, 2015.In 2015, after Lowry obtained insurance through Kaiser Permanente, his new treating physician, Dr. Christine Barnett, informed him for the first time that he never had hemophilia and, on April 27, 2015, she sent him a confirmation letter to that effect.LowryDecl. ¶ 12, ECF #43-2; ECF #43-4.

Thereafter, Lowry requested chart notes from OHSU, and discovered a progress note from October 29, 1975, in which Dr. Lovrien wrote that Lowry's mother had come to the Hemophilia Clinic asking for "more medicine for home infusions of her two children."ECF #43-3.Dr. Lovrien advised her that coagulation studies "ha[d] never been satisfactory andconcluded[,] indicated that a severe bleeding problem was not present."Id.Lowry's mother became hysterical, cried for almost two hours, and complained that "the mental anxiety of withdrawing the medicine would make her life so complex because then she would care about her children."Id.In response, Dr. Lovrien wrote:

[W]e have decided to go ahead and continue home infusions despite the fact that on paper it doesn't look like there is any severe bleeding problem in the family. . . .Despite the fact that on paper there is no evidence of a severe bleeding problem at this time[,] I feel it is the best judgment to continue reasonable infusions and that the hazards of infusion, including hepatitis and other complications are less than the hazards of mental turmoil associated with withdrawing the home infusion program.

Id.

The parties executed a tolling agreement on August 15, 2015, thereby tolling the statute of limitations from that date.As the OTCA notice requirement is more restrictive than the statute of limitations, the operative date for determining this motion for summary judgment is December 17, 2014, i.e., 180 days before the tort claim notice was filed.

1.Awareness of Substantial Possibility of Injury

Defendants rely on OHSU chart notes and Lowry's deposition testimony to argue that Lowry was aware of the facts giving rise to his claims before December 17, 2014.ECF #41, at 8-9.Because a reasonable jury could reach more than one conclusion about this evidence, summary judgment should be denied.

Defendants first point to a nurse's chart note from December 5, 2011, that reads: ...