Straube v. Larson

• Decision Date: 18 September 1979
• Docket Number: No. 402-227,402-227
• Citation: 600 P.2d 371,287 Or. 357
• Parties: , 7 A.L.R.4th 557 Kurt R. STRAUBE, M. D., Appellant/Cross-respondent, v. Roger G. LARSON, Robert Seapy, M. D., and Richard K. Helm, M. D., Respondents/Cross-appellants, John C. English, M. D., Respondent/Cross-appellant. ; SC 25191.
• Court: Oregon Supreme Court

Page 371

600 P.2d 371

287 Or. 357, 7 A.L.R.4th 557

Kurt R. STRAUBE, M. D., Appellant/Cross-respondent, v. Roger G. LARSON, Robert Seapy, M. D., and Richard K. Helm, M. D., Respondents/Cross-appellants, John C. English, M. D., Respondent/Cross-appellant.

No. 402-227; SC 25191.

Supreme Court of Oregon.

Argued and Submitted Feb. 6, 1979.

Decided Sept. 18, 1979.

Richard E. Alexander, of Davies, Biggs, Strayer, Stoel & Boley, Portland, argued the cause for appellant/cross-respondent. With him on the briefs was Preston C. Hiefield, Jr., of Williams, Stark, Hiefield, Norville & Griffin, P. C., Portland.

William L. Hallmark, Portland, argued the cause for respondents/cross-appellants Larson, Seapy and Helm. With him on the briefs were William A. Davis, and Jones, Lang, Klein, Wolf & Smith, Portland.

Elizabeth K. Reeve, Portland, argued the cause for respondent/cross-appellant English. With her on the briefs were A. Allan Franzke, J. Laurence Cable, Ridgway K. Foley, Jr., and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before DENECKE, C. J., and HOLMAN, HOWELL, BRYSON, ^* LENT and LINDE, JJ.

HOLMAN, Judge.

This is an action for damages brought by a physician against the chief administrator of Emanuel Hospital as well as another physician and two residents in training in radiology at the hospital, charging a successful conspiracy by the defendants to deprive plaintiff of his staff privileges in the hospital. Plaintiff appeals from a summary judgment for defendants.

Plaintiff is a radiologist and was a partner in a firm of radiologists, Lloyd Center X-ray. The partners were employed by the hospital as the sole persons doing the hospital's radiology work. As a member of the hospital staff, plaintiff was in charge of radiology education for interns and residents. Defendant Larson was the administrator of the hospital. Defendant English was a radiologist working at the hospital who was employed by the firm of which plaintiff was a partner. English was also a member of the hospital's medical staff. Defendants Seapy and Helm were radiology residents in training at the hospital who were employed by the hospital, and who were paid by Lloyd Center X-ray for some week-end work at the hospital.

On January 30, 1973, Larson, as chief executive of the hospital, summarily suspended plaintiff's hospital staff privileges "in the best interest of patient care." Pursuant to hospital bylaws and regulations, this action was temporary and subject to review by a hearing before the Medical Staff Executive Committee (executive committee) and subject to review and hearing before a review committee before final action by the Board of Directors (board) of the hospital. The executive committee sustained the suspension and continued it until a later date. The review committee held hearings and recommended to the executive committee that the suspension not be affirmed and be lifted. This recommendation was not accepted by the executive committee which then made the suspension permanent and the board affirmed the action of the executive committee on January 24, 1974. This action followed.

Plaintiff's cause of action rests upon the theory of the wrongful interference by defendants with plaintiff's business relationship with the hospital. Plaintiff being a member of the firm which had the contract to do the hospital radiology work, suspension of plaintiff's staff privileges interfered with his performance of that contract. Aside from this contract, he had a business relationship with the hospital that afforded him with a base from which to practice his specialty, which relationship was terminated.

Before this court can decide whether, as plaintiff contends on appeal, the granting of the summary judgment was improper, because he had tendered a prima facie case entitling him to its submission to a jury, ¹ we must determine what plaintiff must prove to make out a cause of action. Modern decisions of this court concerning interference with economic relationships commence with Wampler v. Palmerton, 250 Or. 65, 439 P.2d 601 (1968), and end with Top Service Body Shop v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365 (1978). Intentional interference in pursuit of an improper objective or the use of wrongful means of interference that in fact cause injury to a plaintiff's professional or business relationships usually gives rise to a tort claim. Interference with a business relationship is an intentional tort. If the person whose actions interfere does not have the intent to cause the result, his conduct does not subject him to liability. However, even if he does not act for the purpose of interfering or does not desire it but knows that the interference is substantially certain to occur from his action and is a necessary consequence thereof, his interference is intentional as contemplated by the rule. Restatement (Second) of the Law of Torts § 766, comments (H) and (J).

In Top Service we decided that the defendant's improper intent, motive or purpose to interfere was a necessary element of the plaintiff's case, rather than a lack thereof being a matter of justification or privilege to be asserted as a defense by defendant. Thus, to be entitled to go to a jury, plaintiff must not only prove that defendant intentionally interfered with his business relationship but also that defendant had a duty of non-interference; I. e., that he interfered for an improper purpose rather than for a legitimate one, or that defendant used improper means which resulted in injury to plaintiff. Therefore, a case is made out which entitles plaintiff to go to a jury only "when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." 283 Or. at 209, 582 P.2d at 1371.

Plaintiff introduced in evidence the transcripts of testimony before the executive and review committees, which transcripts defendants contend may not be used as evidence in this case because the evidence has been proscribed by statute. A plaintiff makes a jury case by submitting evidence of the defendant's testimony in the original hearing (such as the hearing before either the executive committee or the review committee) to certain claimed facts which were detrimental to plaintiff and which are a basis for the action taken against him, and then testifying himself in his action for interference contrary to defendant's testimony in the original hearing. From this the jury can conclude that the defendant lied in his testimony about plaintiff which resulted in the action taken against him at the original hearing and infer therefrom an improper motive (to injure plaintiff) on defendant's part. As a result, plaintiff has it within his ability almost always to make out a case for submission to the jury. Realizing this, and recognizing the difficulty in securing witnesses in proceedings for the discipline of medical staff in hospitals because the witness may be faced with an action by the person whose conduct is in question that will almost certainly go to a jury, the legislature enacted ORS 41.675, which provides, in part, as follows:

" * * * (1) As used in subsection (2) of this section 'data' means written reports, notes or records of tissue committees or other medical staff committees in connection with the professional training, supervision or discipline of the medical staff of hospitals, and any written reports, notes or records of similar committees of professional societies in connection with training, supervision or discipline of physicians. The term includes the written reports, notes or records of utilization review and professional standards review organizations.

"(2) All data shall be confidential and shall not be admissible in evidence in any judicial proceeding, but this section shall not affect the admissibility in evidence of records dealing with a patient's hospital care and treatment.

"(3) A person serving on or appearing before any medical review committee shall not be examined as to any communication made before that committee or the findings thereof.

" * * *."

The executive and the review committees that held the hearings in this case were "medical staff committee(s) in connection with the * * * discipline of the medical staff of hospitals." It would therefore seem that subsections (1) and (2) of ORS 41.675 apply to the transcripts of testimony before those committees. Further, there is no reason to suppose that the "medical review committee" referred to in subsection (3) of ORS 41.675 applies to different kinds of committees from those described in subsection (1).

Plaintiff's answer to this reasoning is that despite the broad language of the statute, the legislature intended the statute to apply only to "tissue committees," which meet to discuss the treatment of patients. The discussions at such committee meetings, to be of any value, must be frank, even brutal, and if the discussions of the staff at such meetings were admissible in malpractice actions or other litigation, they would probably not be as frank.

Our examination of the legislative history shows that the chief emphasis was indeed on protecting the confidentiality of tissue committee discussions; however, the history does not explain why the legislature went on to add "other medical staff committees in connection with the professional training, supervision or Discipline of the medical staff of hospitals * * *." (Emphasis added.) Had the legislature intended to protect only tissue committees, it need not have added the other language. Further, there is no indication in the legislative history that the statute was not intended to cover disciplinary committees such as those in this case. ² Therefore, plaintiff may not use the records made in the hospital disciplinary proceedings nor may any person who testified in those proceedings "be examined as to any communication made before that committee or the findings thereof." Application of the...