Rabkin v. Oregon Health Sciences University
| Decision Date | 24 November 2003 |
| Docket Number | No. 02-35178.,No. 02-35077.,02-35077.,02-35178. |
| Citation | 350 F.3d 967 |
| Parties | John M. RABKIN, M.D., Plaintiff-Appellee/Cross-Appellant, v. OREGON HEALTH SCIENCES UNIVERSITY, an Oregon public corporation, Defendant-Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marjorie A. Speirs, Hoffman, Hart & Wagner, Portland, Oregon, for the defendant-appellant/cross-appellee.
Jeffrey M. Batchelor and Jeffrey M. Edelson, Markowitz, Herbold, Glade & Mehlhaf, P.C., Portland, Oregon, for the plaintiff-appellee/cross-appellant.
Appeal from the United States District Court for the District of Oregon, Owen M. Panner, District Judge, Presiding. D.C. No. CV-01-00943-PA.
Before: RUGGERO J. ALDISERT,* SUSAN P. GRABER and RONALD M. GOULD, Circuit Judges.
This appeal by Oregon Health Sciences University (OHSU) from an Order by the United States District Court for the District of Oregon denying Appellant's motion to reduce a jury verdict requires us to decide whether an award under Oregon's Whistleblower Law, Or.Rev.Stat. § 659A.203 (2001), is limited to $200,000 as set forth in the Oregon Tort Claims Act (OTCA), Or.Rev.Stat. § 30.270(1) (2001). We hold that the limitation applies and, therefore, reverse the judgment of the district court.
We also decide in a cross-appeal brought by John Rabkin, M.D., that the district court did not abuse its discretion by not reinstating him as director of OHSU's Liver Transplant Program.
The United States District Court for the District of Oregon had jurisdiction in the underlying action pursuant to 28 U.S.C. § 1331 based on Dr. Rabkin's First Amendment claim under 42 U.S.C. § 1983. Moreover, the district court had supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over claims related to the underlying action.
Dr. Rabkin is a liver transplant surgeon who contends that after he raised concerns about patient well-being under a fellow physician's care, his employer, OHSU, retaliated against him by removing him as director of the Liver Transplant Program. This case centers upon hostilities that transpired between Dr. Rabkin and other physicians at the hospital.
Dr. Rabkin was originally recruited to serve as director of OHSU's Liver Transplant Program in 1991, and he negotiated the terms of his employment agreement with Clifford W. Deveney, M.D., and Donald Trunkey, M.D. The agreement invested in Dr. Rabkin fiscal and administrative autonomy over the Liver Transplant Program, and provided that the Program would not be subject to the oversight of Richard A. Crass, M.D., head of the General Surgery Division.
From the outset, all parties acknowledged that the Liver Transplant Program required at least three surgeons to staff adequately all of its activities. Dr. Rabkin recruited and hired Matthew Reed, M.D., in 1991 and Susan L. Orloff, M.D., in 1995. Dr. Reed left the program in 1996 with encouragement from Dr. Rabkin, who did not have confidence in Dr. Reed's surgical abilities.
Soon thereafter, Drs. Rabkin and Orloff began having difficulties with each other. By the summer of 2000, the tension between the two spilled into the operating room, leading them to stop assisting one another with surgeries. Moreover, hostility brewed between Drs. Rabkin and Crass, head of the General Surgery Division, as a result of Dr. Rabkin's declination to share more of the Liver Transplant Program's fiscal resources generated by outside sources with the General Surgery Division.
Meanwhile, Dr. Rabkin had been promoted to Associate Professor of Surgery on July 1, 1998. Eighteen months later, on December 28, 1999, Dr. Trunkey informed Dr. Rabkin that his academic appointment would not be renewed. On the same day, Dr. Rabkin learned from his staff that Dr. Trunkey had taken steps to remove him as director of the Liver Transplant Program and that Dr. Orloff had been appointed acting director. Dr. Trunkey's decision was based on Dr. Rabkin's failure to treat Dr. Orloff "in a collegial manner" and Dr. Rabkin's "defiance of Dr. Crass in his attempt to correct financial shortfalls within the Division of Surgery."
Dr. Rabkin appealed to Joseph D. Bloom, M.D., dean of the Medical School, who appointed a committee to review the Liver Transplant Program. Effective July 1, 2000, Dr. Rabkin was reinstated as director under the supervision of John Barry, M.D., head of the Division of Abdominal Organ Transplantation, and he no longer supervised Dr. Orloff.
On July 20, 2000, Dr. Trunkey reported to Drs. Bloom and Barry that Dr. Orloff was still unhappy with the new arrangement and was exploring other opportunities. If she left, he wrote, OHSU would lose a "potentially excellent academic surgeon" and be left with the "sociopath" Dr. Rabkin. Nonetheless, Dr. Trunkey recommended Dr. Rabkin for tenure track in January 2001, and his recommendation was followed.
In fall 2000, before he was placed on the tenure track, Dr. Rabkin began reporting to the OHSU administration his concerns that Dr. Orloff's patient mortality rate was double his own. In February 2001, at the request of Dr. Barry, Dr. Orloff voluntarily agreed to stop doing liver transplants until an outside consultant reviewed the Liver Transplant Program. Dr. Barry retained Ruud A.F. Krom, M.D., a liver transplant surgeon from the Mayo Clinic, to conduct the review. Dr. Krom visited OHSU on March 14 and 15, 2001, and thereafter delivered a 10 page report concluding that the Liver Transplant Program "requires a change in philosophy and a short-term investment to create a solid core of a multidisciplinary transplant team."
One month later, Dr. Rabkin was informed that he was no longer director of the Liver Transplant Program and that a third transplant surgeon would be recruited as the new director. On May 26, 2001, Dr. Barry offered the directorship to John Ham, M.D. Dr. Rabkin remained on OHSU's medical school faculty and continued as director of the Organ Procurement Organization.
On May 18, 2001, Dr. Rabkin filed a grievance with OHSU's Affirmative Action and Equal Opportunity Department, contending that OHSU had retaliated against him for disclosing his concerns about Dr. Orloff's poor surgical outcomes. The department dismissed his grievance as unsubstantiated on July 5, 2001.
Dr. Rabkin filed this action in district court on June 21, 2001, asserting claims under the First Amendment, 42 U.S.C. § 1983, and Oregon's Whistleblower Law, former Or.Rev.Stat. § 659.510(renumbered as Or. Rev. Stat § 659A.203 (2001)), requesting damages and reinstatement. Following a three-day trial, the jury found in favor of OHSU on the First Amendment claim, but Dr. Rabkin prevailed on his claim that OHSU had violated Oregon's Whistleblower Law. The jury awarded Dr. Rabkin $500,000 in damages. OHSU then moved to reduce the amount of the judgment to $200,000 based on the OTCA, which limits recovery for tort claims brought against the government to $200,000. The district court denied OHSU's motion. Additionally, the district court rejected Dr. Rabkin's claim for equitable relief in the form of reinstatement for directorship of OHSU's Liver Transplant Program.
The timely appeal and cross-appeal followed. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
We "review de novo a district court's determination of state law." Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). "When de novo review is compelled, no form of appellate deference is acceptable." Id. at 238, 111 S.Ct. 1217.
The OTCA provides a limit on a government tortfeasor's liability:
Liability of any public body or its officers, employees or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:
. . . .
(b) $100,000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $100,000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed $100,000.
Or.Rev.Stat. § 30.270(1) (2001).
The OTCA defines "tort":
"Tort" means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy.
Id. § 30.260(8) (2001).
Oregon's Whistleblower Law provides:
[I]t is an unlawful employment practice for any public employer to:
. . . .
(b) Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:
. . . .
(B) ... substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision[.]
Former Or.Rev.Stat. § 659.510 (1999) (renumbered as Or.Rev.Stat. § 659A.203 (2001)).
The Whistleblower Law's relevant remedy provision provided that:
an employee alleging a violation of ORS 659.510 may bring a civil action for appropriate injunctive relief or damages, or both, within 90 days after the occurrence of the alleged violation. The action may be filed in the circuit court of the county in which the alleged violation occurred, or the county in which the complainant resides. If damages are awarded, the court shall award actual damages or $250, whichever is greater.
Former Or.Rev.Stat. § 659.530 (1999) (emphasis added).1
Thus, the issue is joined. We must decide if the OTCA's limit on a government tortfeasor's liability applies to claims brought under the remedy provision of the 1999 Whistle-blower Law.
The district court relied exclusively on the reasoning set forth in Draper v. Astoria School District No. 1C, 995 F.Supp. 1122 (D.Or.1998), holding that...
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